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Prosecution has to show that confession was voluntary: SC

If an accused retracts his confession,the burden to prove that the initial statement was obtained under duress does not lie on him,the Supreme Court has observed.

Written by Agencies | New Delhi |
January 14, 2009 8:29:58 pm

If an accused retracts his confession,the burden to prove that the initial statement was obtained under duress does not lie on him,the Supreme Court has observed.

The apex court asserted that it is for the prosecution to show that the confession was voluntary.

“A person accused of commission of an offence is not expected to prove to the hilt that confession had been obtained from him by any inducement,threat or promise by a person in authority. The burden is on the prosecution to show that the confession is voluntary in nature and not obtained as an outcome of threat etc,” a bench headed by Justice S B Sinha observed.

The court made the observation while asking the Enforce Directorate to refund before January 15 Rs 2.65 lakh seized from a small-time businessman Vinod Solanki who was arrested on charges of violation of the Foreign Exchange Regulation Act,1973.

ED had seized the money from the office of Solanki who was arrested for his involvement in remittance of foreign exchange worth USD 34,230. He had disclosed before the authorities that the transactions related to import of goods for two firms.

However,he had retracted from his confession before the Chief Metropolitan Magistrate stating that he had made involuntary and false statements under coercion and threat during his illegal detention. He claimed that the seized currency was his legitimate business money.

However,ED had proceeded with the investigations and had imposed a penalty of Rs 10 lakh. Both the Appellate Tribunal for Foreign Exchange and the Bombay High Court had accepted Solanki’s confessional statement and dismissed his appeal.

The apex court,while setting aside the High Court judgment that upheld the charges of FERA violations imposed on Solanki,refused to accept the submissions of ED that he had special knowledge and the burden of proof would be on him in terms of Section 106 of the Indian Evidence Act.

The court said that ED and the sectoral tribunal failed to apply their minds to the retraction.

“The court is obligated to take into consideration the pros and cons of both the confession and retraction made by the accused. It is one thing to say that a retracted confession is used as a corroborative piece of evidence to record a finding of guilt but it is another thing to say that such a finding is arrived at only on the basis of such confession although retracted at a later stage,” Justice Sinha,writing for the bench,observed.

According to the court,“the special or peculiar knowledge of the person proceeded against would not relieve the prosecution or the department altogether of the burden of producing some evidence in respect of that fact in law. It may only alleviate that burden to discharge and very slight evidence may suffice.”

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