(-1-) MGN IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CIVIL JURISDICTION FERA APPEAL NO.43 OF 2007 Union of India & Anr............Appellants Vs. Kumar Bhagwandas Shroff .........Respondent Mr.R.V.Desai, Senior Counsel with Mr. A.S. Rao, Mrs. S.V. Bharucha, Mrs. N.V. Masurkar and Mr. H.P. Chaturvedi for the Appellant. Mr. Madhu M. Patel for Respondent. CORAM: F.I. CORAM: F.I. CORAM: F.I. REBELLO REBELLO REBELLO & R.S.MOHITE,JJ. R.S.MOHITE,JJ. R.S.MOHITE,JJ. DATED: 15TH FEBRUARY,2008 DATED: 15TH FEBRUARY,2008 DATED: 15TH FEBRUARY,2008 P.C.: P.C.: P.C.: . Admit. Heard forthwith. The Tribunal while setting aside the order of the Appellate Authority observed as under:- "The enforcement has not proved the statement of appellant and he would have been the best person to deny allegation of duress. For the same reason documents seized from Sadhwani are not admissible and is hit by Section 72(2) of the FERA." It is, therefore, clear that the Tribunal proceeded on the footing that in a case where a statement is retracted by the maker of the statement the burden that the statement was recorded was under coercion, (-2-) duress or the like is not on the maker of the statement, but on the revenue or an officer who recorded the statement. 2. On behalf of the Revenue learned Counsel pointed out that conclusion on burden of proof is contrary to the law declared by the Supreme Court and has drawn our attention to the judgment of the Supreme Court in K.Pavunny vs. Assistant Collector (HQ), Central Excise Collectorate, Cochin, reported in (1997) 3 SCC 721 and more specifically para.19. The Supreme Court was addressing itself to the issue as to whether the retracted confessional statement requires corroboration by any other independent evidence. After considering the various judgments this is what the Supreme Court stated:- "It would thus be seen that there is no prohibition under the Evidence Act to rely upon the retracted confession to prove the prosecution case or to make the same basis for conviction of the accused. Practice and prudence require that the court could examine the evidence adduced by the prosecution to find out whether there are any other facts and circumstances to corroborate the retracted confession. It is not necessary that there should be (-3-) corroboration from independent evidence adduced by the prosecution to corroborate each detail contained in the confessional statement. The court is required to examine whether the confessional statement is voluntary; in other words, whether it was not obtained by threat, duress or promise. If the court is satisfied from the evidence that it was voluntary, then it is required to examine whether the statement is true. If the court on examination of the evidence finds that the retracted confession is true, that part of the inculpatory portion could be relied upon to base the conviction. However, precedence and practice require that court would seek assurance getting corroboration from other evidence adduced by the prosecution." . Learned Counsel for the respondent in suport of the order has sought to place reliance on the judgment of the Supreme Court in Mohtesham Mohd. Mohtesham Mohd. Mohtesham Mohd. Ismail vs. Spl. Director, Enforcement Directorate Ismail vs. Spl. Director, Enforcement Directorate Ismail vs. Spl. Director, Enforcement Directorate and Anr., (2007) 8 SCC 254 and Anr., (2007) 8 SCC 254 and Anr., (2007) 8 SCC 254 and more specifically para.19. A perusal of para.19 would indicate that it was in the context of confession of a co-accused. Para.19 of the said judgment, therefore, would not apply in the case of retraction by the accused (-4-) himself. It is then pointed out with reference to para.20 that apart from confession it is necessary that the Court must seek corroboration of the purported confession from independent sources. The learned Counsel submits that the plea of duress could not have been considered as it was not referred to in the show cause notice. . At this stage we may point out that the Tribunal has held that the entries in the diaries of documents seized from Sadhwani inadmissible for the same reasons as discarding the statement of the Respondent. 3. The learned Counsel for Revenue points out that this judgment of a Bench of 3 Judges in K. Pavunny was not considered in Mohtesham Mohd. Ismail (supra) which was by a Bench of 2 Judges. 4. In K.T.M.S. Mohd. and Anr. vs. Union of K.T.M.S. Mohd. and Anr. vs. Union of K.T.M.S. Mohd. and Anr. vs. Union of India, (1992) 3 SCC 178 India, (1992) 3 SCC 178 India, (1992) 3 SCC 178 the Supreme Court was dealing with the issue of retracted statement. After considering the law this is what the Court stated:- "The voluntary nature of any statement made either before the Custom authorities or the officers of Enforcement under the relevant (-5-) provisions of the respective Acts is a sine qua non to act on it for any purpose and if the statement appears to have been obtained by any inducement, threat, coercion or by any improper means that statement must be rejected brevi manu. At the same time, merely because a statement is retracted, it cannot be recorded as involuntary or unlawfully obtained. It is only for the maker of the statement who alleges inducement, threat, promise, etc. to establish that such improper means has been adopted." It is thus clear from the law declared by the Supreme Court that the burden shifts on the maker of the statement to prove that the statement was recorded involuntarily or unlawfully. The Tribunal totally misdirected itself in law in placing the burden on the revenue. 5. Considering the above, in our opinion the Appeal will have to be allowed. The impugned order is set aside and the matter is remanded back to the Tribunal to decide the Appeal according to law in terms of what we have stated above in this order. Needless to say that the other contentions except those decided here are kept for consideration before (-6-) the Tribunal. (R.S.MOHITE, J.) (R.S.MOHITE, J.) (R.S.MOHITE, J.) (F.I.REBELLO, J.) (F.I.REBELLO, J.) (F.I.REBELLO, J.)