# VINOD SOLANKI v. UNION OF INDIA & ANR - **Citation:** [2008] 17 S.C.R. 1070 - **Court:** Supreme Court of India - **Decided:** 2008-12-18 - **Case number:** Civil Appeal No. 7407 of 2008 - **Bench:** S.B. Sinha, Cyriac Joseph - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/vinod-solanki-v-union-of-india-anr-23997 - **Pages:** 26 ## Headnote Foreign Exchange Regulation Act: ss.8(3), 9(1) - Violation of - Confession - Retraction of - Imposition of penalty- Tribunal placed burden to prove that c;onfession was obtained from him by threat, coercion or force upon proceedee - Affirmed by High Court - Held: Initial burden to prove that confession was voluntary in nature and not obtained as an outcome of threat is on the department - Special or peculiar knowledge of person proceeded against would not relieve prosecution or department altogether of burden of producing evidence in support· of its case - With a view to arrive at a finding as regards the voluntary nature of statement or otherwise of a confession which has since been retracted, the Court must bear in mind attending circumstances which would include time of retraction, nature thereof, manner in which such retraction was made and other relevant factors - Law does not say that the accused has to prove that retraction of confession made by him was because of threat, coercion, etc. but the requirement is that it may appear to the court as such - Evidence Act, 1872 - s.24. The office premises of appellant was searched and Indian currency amounting to Rs.2.65 lakhs was recovered. Appellant was detained. On the next two , succeeding dates, he allegedly made two statements before the authorities under the Foreign Exchange Regulation Act, 1973 disclosing that all the transactions in the name of two companies related to import of goods made by him and stating that no import of goods took place in the name of said companies. He also confessed 1070 ,IJ ' ! \-"f ' y - r ... " -4 ' )--.. : VINOD SOLANKI v. UNION OF INDIA & ANR. 1071 that he was responsible for remittance of foreign A exchange worth US $ 11,400 and US $ 22,830. In view of the said purported confession, he was arrested for violation of provisions of a.8(3) and s.9(1 )(a) of the Act. When he was produced before CMM, he filed an application retracting his confession. Respondent, B however, initiated proceedings under s.8 (3) of the Act. A show-cause Notice was issued on him. In reply to showcause Notice, appellant stated that no reliance should be placed on the retracted confessional statement unless the same was corroborated sub~tantially in material c particulars by some independent evidence. The appropriate authority relying on the basis of confession made by appellant imposed a consolidated penalty of Rs.10 lakhs. It held that appellant was guilty of contravention of s.8 (3) to the extent of US $ 34,230 in D as much as he failed to utilize the said foreign exchange for the purpose it was released to him. Further, it also held him guilty of contravention of charge under s.9(1)(a) of the Act for the same amount in as much he deposited in a foreign bank account without exemption from RBI. E Appellant filed appeal before the Tribunal. Tribunal placed the onus of proof upon appellant that the confession was obtained from him by threat, coercion or force. The Tribunal held that retraction alone would not make the confession inadmissible and as even retracted confessional statement may be- sufficient to hold the F proceedee guilty of violation of the provisions of the Act, imposition of penalty was legally permissible. High Court affirmed the decision of the Tribunal. Hence the present appeal. Allowing the appeal, the Court G HELD:1. The proceeding under the Foreign Exchange Regulation Act is quasi criminal in nature. The Act is a special Act, which confers various powers upon the authorities prescribed therein. Even the sarutory principles of mens rea and actus reus in a proceeding H 1072 SUPREME COURT REPORTS [2008] 17 S.C.R. \.-- A under the Act may not be held to be applicable. It is now a well settled principle that presumption of .innocence as contained in Article 14(2) of the International Covenant on I.: 4;.'.- Civil and Political Rights is a human right although per se it may not be treated to be a fundamental right within B the meaning of Article 21 of t ## Text _Characters 0–39,996 of 53,214. This is a partial read: ask again with offset=39996 for what follows._ B c D E F G H [2008] 16 S.C.R. 1070 VINOD SOLANKI v. UNION OF INDIA & ANR. (Civil Appeal No. 7407 of 2008) DECEMBER 18, 2008 [S.B. SINHA AND CYRIAC JOSEPH, JJ.] Foreign Exchange Regulation Act: ss.8(3), 9(1) - Violation of - Confession - Retraction of - Imposition of penalty- Tribunal placed burden to prove that c;onfession was obtained from him by threat, coercion or force upon proceedee - Affirmed by High Court - Held: Initial burden to prove that confession was voluntary in nature and not obtained as an outcome of threat is on the department - Special or peculiar knowledge of person proceeded against would not relieve prosecution or department altogether of burden of producing evidence in support· of its case - With a view to arrive at a finding as regards the voluntary nature of statement or otherwise of a confession which has since been retracted, the Court must bear in mind attending circumstances which would include time of retraction, nature thereof, manner in which such retraction was made and other relevant factors - Law does not say that the accused has to prove that retraction of confession made by him was because of threat, coercion, etc. but the requirement is that it may appear to the court as such - Evidence Act, 1872 - s.24. The office premises of appellant was searched and Indian currency amounting to Rs.2.65 lakhs was recovered. Appellant was detained. On the next two , succeeding dates, he allegedly made two statements before the authorities under the Foreign Exchange Regulation Act, 1973 disclosing that all the transactions in the name of two companies related to import of goods made by him and stating that no import of goods took place in the name of said companies. He also confessed 1070 ,IJ ' ! \-"f ' y - r ... " -4 ' )--.. : VINOD SOLANKI v. UNION OF INDIA & ANR. 1071 that he was responsible for remittance of foreign A exchange worth US $ 11,400 and US $ 22,830. In view of the said purported confession, he was arrested for violation of provisions of a.8(3) and s.9(1 )(a) of the Act. When he was produced before CMM, he filed an application retracting his confession. Respondent, B however, initiated proceedings under s.8 (3) of the Act. A show-cause Notice was issued on him. In reply to showcause Notice, appellant stated that no reliance should be placed on the retracted confessional statement unless the same was corroborated sub~tantially in material c particulars by some independent evidence. The appropriate authority relying on the basis of confession made by appellant imposed a consolidated penalty of Rs.10 lakhs. It held that appellant was guilty of contravention of s.8 (3) to the extent of US $ 34,230 in D as much as he failed to utilize the said foreign exchange for the purpose it was released to him. Further, it also held him guilty of contravention of charge under s.9(1)(a) of the Act for the same amount in as much he deposited in a foreign bank account without exemption from RBI. E Appellant filed appeal before the Tribunal. Tribunal placed the onus of proof upon appellant that the confession was obtained from him by threat, coercion or force. The Tribunal held that retraction alone would not make the confession inadmissible and as even retracted confessional statement may be- sufficient to hold the F proceedee guilty of violation of the provisions of the Act, imposition of penalty was legally permissible. High Court affirmed the decision of the Tribunal. Hence the present appeal. Allowing the appeal, the Court G HELD:1. The proceeding under the Foreign Exchange Regulation Act is quasi criminal in nature. The Act is a special Act, which confers various powers upon the authorities prescribed therein. Even the sarutory principles of mens rea and actus reus in a proceeding H 1072 SUPREME COURT REPORTS [2008] 17 S.C.R. \.-- A under the Act may not be held to be applicable. It is now a well settled principle that presumption of .innocence as contained in Article 14(2) of the International Covenant on I.: 4;.'.- Civil and Political Rights is a human right although per se it may not be treated to be a fundamental right within B the meaning of Article 21 of the Constitution of India. The Act, thus, does not provide for a 'reverse burden'. No presumption of commission of an offence is raised under the Act. [Paras 17, 19 and 21] [1083-H; 1084-8-D-G] Noor Aga vs. State of Punjab & Anr. (2008) 9 SCALE \ ..... c 681; Alok Nath Dutta vs. State of West Bengal (2p06) 13 SCALE 467 and BabubhaiUdesinh Parmar vs. State of Gujarat (2006) 12 SCC 268, relied on. Universal Declaration of Human Rights (1948) Article 11 (1 ); European Convention for the protection of Human D Rights and Fundamental Freedoms (1950) Article 6.2; International Covenant on Civil and Political Rights (1966) Article 14.2, referred to. 2.1. It is a trite law that evidences brought on record by way of confession which stood retracted must be· E substantially corroborated by other independent and cogent evidences, which would lend adequate assurance to the court that it may seek to rely thereupon. [Para 22] [1085-G-H] Pon Adithan v. Deputy Director, Narcotics Control F Bureau, Madras (1999) 6 SCC 1, relied on. 2.2. The initial burden to prove that the confession was voluntary in nature would be on the Department. The ' . 'I special or peculiar knowledge of the person proceeded against would not relieve the prosecution or the G Department altogether of the burden of producing some evidence in respect of that fact in issue. It may only alleviate that burden to discharge and very slight evidence may suffice. [Para 25] [1087-G-H; 1088-A] ~ Shanti Prasad Jain vs. The Director of Enforcement (1963) 2 SCR 297; K. T.M.S. Mohd. & Anr. Vs. Union of India VINOD SOLANKI v. UNION OF INDIA & ANR. 1073 ... (1992) 3 SCC 178; Collector of Customs, Madras & ors. Vs. A D. Bhoormall (1974) 2 SCC 544; Ramesh Chandra Mehta . < .; vs. State of West Bengal (1969) 2 SCR 461; State (NCT of Delhi) vs. Navjot Sandhu alias Afsan Guru (2005) 11 SCC 600; Mirah Exports Pvt. Ltd. vs. Collector of Customs (1998) 3 SCC 292; Commissioner of Customs, Mumbai vs. J.D. B Orgochem Ltd. (2008) 6 SCALE 669; K./. Pavunny vs. Assistant Collector (HQ), Central Excise Collectorate, Cochin (1997) 3 SCC 721; Assistant Collector of Central Excise, >--~ Rajamundry vs. Duncan Agro Industries Ltd. & Ors. (2000) 7 SCC 53 and Gu/am Hussain Shaikh Chougule vs. S. Reynolds, Supdt. of Customs, Marmgoa (2002) 1 SCC 155, c referred to . .. 2.3. 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 D 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. if the same is to be relied upon solely for the purpose of securing a conviction. With a view to arrive at a finding as regards the voluntary nature of statement or otherwise E of a confession which has since been retracted, the Court must bear in mind the attending circumstances ,, which would include the time of retraction, th~ nature thereof, the manner in which such retraction has been made and other relevant factors. Law does not say that F the accused has to prove that retraction of .confes·sion • 't made by him was because of threat, coercion, etc. but the requirement is that it may appear to the court as such. [Para 34] [1091-F-H; 1092-A] 3. In the instant case, the Investigating Officers did G not examine themselves. The authorities under the Act as also the ·Tribunal did not arrive at a finding upon ,~ application of their mind to the retraction and rejected the same upon assigning cogent and valid reasons therefor. Whereas mere retraction of a confession may not be H 1074 SUPREME COURT REPORTS [2008) 17 S.C.R. A sufficient to make the confessional statement irrelevant for the purpose of a proceeding ,in a criminal case or a quasi criminal case but there cannot be any doubt whatsoever that the court is obligated to take into consideration the pros and cons of both the confession 8 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 C later stage. [Para 35] [1092-A-D] 4. Appellant is said to have been arrested on 27.10.1994; he was produced before the Chief Metropolitan Magistrate on 28.10.1994. He retracted his confession and categorically stated the manner in which such confession was purported to have been obtained. D According to him, he had no connection with any alleged import transactions, opening of bank accounts, or floating of company, export control, Bill of Entry and other documents or alleged remittances. He state'd that confess-ions were not only untrue but also involuntary .. E The allegation that he was detained in the Office of Enforcement Department for two days and two nights had not been refuted. No attempt has been made to controvert the statements made by appellant in his application filed on 28.10.1994 before the Chief \ F Metropolitan Magistrate. Furthermore, th~ Tribunal as also the Authorities misdirected themselves m law insofar as they ,failed to pose unto themselves a correct question. The Tribunal proceeded on the basis that issuance and services of a show cause notice subserves the requirements of law only because by reason thereof an G opportunity was afforded to the proceedee to submit its, explanation. The Tribunal ought to have based it$ de'cision on applying the correct principles of law. The statement made by the appellant before the Chief Metropolitan Magistrate was not a bald statement. The H inference that burden of proof that he had made those .. r .. VINOD SOLANKI v. UNION OF INDIA & ANR. [S.S. SINHA, J.] 1075 statements under threat and coercion was solely on the A proceedee does not rest on any legal principle. The question of the appellant's failure to discharge the burden would arise only when the burden was on him. If the burden was on the revenue, it was for it to prove the said fact. The Tribunal on its independent examination of the factual matrix placed before it did not arrive at any finding 8 that the confession being free from any threat, inducement or force could not attract the provisions of Section 24 of the Indian Evidence Act. [Paras 36 and 37] (1092-D-H; 1093-A-C] Mohtesham Mohd. Ismail vs. Sp/. Director, Enforcement C Directorate & Anr. (2007) 8 SCC 2~4 referred to. 5. There is another aspect of, the matter which cannot be lost sight of. The allegations made in the show cause notice form the foundation of the case. Appellant was asked to show cause that he instead of utilizing the D foreign exchange acquired on the basis of forged documents, for import of rough diamonds, got the same, \ after remitting abroad, credited in the foreign bank account in Banks maintained by foreign nationals. The finding that he was the brain behind and not involved in E the actual transaction, therefore, does not meet the requirements of law. (Para 39] (1094-A-C-F] Commissioner of Central Excise, Bangalore vs. Brindavan Beverages (P) Ltd. & Ors. (2007) 5 SCC 388, referred to. F Case Law Reference: -(2008) 9 SCALE 681 relied on Para 21 (2006) 13 SCALE 467 relied on Para 21 (2006) 12 sec 268 relied on Para 21 (1999) 6 sec 1 relied on Para 22 G (1963) 2 SCR 297 referred to Para 23 (1992) a sec 178 referred to Para 24 (1974) 2 sec 544 referred to Para 25 (1969) 2 SCR 461 referred to Para 26 H 1076 SUPREME COURT REPORTS [2008] 17 S.C.R. ... A (2005) 11 sec 600 referred to Para 27 (1998) 3 sec 292 referred to Para 28 (2008) 6 SCALE 669 referred to Para 29 ..,: \ ~ (1997) 3 sec 121 referred to Para 31 (2000) 1 sec 53 referred to Para 32 B (2002) 1 sec 155 referred to Para 33 (2001) 8 sec 254 referred to Para 38 (2001) 5 sec 388 referred to Para 40 CIVIL APPELLATE JURISDICTION : Civil Appeal No. ~.A 7407 of 2008. c From the final Judgment dated 30.11.2007 of the High Court of Judicature at Bombay in FERA ~ppeal No. 85 of 2007. Tarun Gulati, Tushar Jarwal, Jaiveer, Shergill, Kishore D Kunal and 1 Praveen Kumar for the Appellant. ? P.V. Shetty, Kiran Bhardwaj, Anil Katiyar and B.V. Balaram Das for the Respodents. The Judgment of the Court was delivered by '" S.B. SINHA, J. 1. Leave granted. E 2. What would be the effect of a retracted confession for the purpose of levy of penalty under Foreign Exchange Regulation Act, 1973 (for short, "the Act") is the question involved in this appeal which arises out of a judgment and order dated 30.1,1.2007 passed by the High Court of Judicature at F Bombay in FERA Appeal No. 85 of 2007. ·~ 3. On or about 25.10.1994, the office premises of the . ~ appellant was searched. Recovery of Indian currency amounting 1 '4 to Rs. 2,65,000/- was made: He was thereafter detained. On the next two succeeding dates, i.e., on 26.10.1994 and G 27 .10.1994, he allegedly made two statements before the Authorities under the Act, disclosing that all theiransactions in the' name of Mis Sun Enterprises, Ahmedabad and M/s Suraj Enterprises, Bombay relating to import of goods had been f-... made by .him and no import of goods had taken place in the name of the said firms. He is stated to have confessed that he was responsible for remittance of the foreign exchange worth ho... VINOD SOLANKI v. UNION OF INDIA & ANR. 1077 [S.B. SINHA, J.] US Dollars t1 ,400 and US Dollars 22,830. In view of the said A purported confession, he was arrested for alleged violation of the provisions of Section 8(3) and Section 9(1)(a) of the Act. We are not concerned with the rest of the statements. 4. He was produced before the learned Chief Metropolitan Magistrate, Bombay on 28.10.1994. Before the said court, he B filed an application retracting his confession, stating: "That from 26-10-94 evening till today when I am being, produced before this Hon'ble Court, I was illegally detained, in the office of the Enforcement Directorate, and during my' illegal detention my involuntary, untrue and false statements', c have been recorded by force, ~oercion, threat and coercion and also threatened to detain under COFEPQSA if I will not write the statements as per their say and hence I retract my said statements as the same are not my true and · voluntary statements. D I further state that Indian currency seized from me was my · legitimate business money and had nothing to do with . alleged FERA violation. I further say that I have no ' connection with any alleged import transactions, opening , of bank accounts, or floating of company by name of Mis · Sun Enterprises, export control, Bill of Entry and other E documents or alleged remittances. I have not been furnished copy of Panchnama, though my signatures have been taken in token of having furnished the copy of the same. I hereby rebut the false averments made in the remand · F application, Panchnama and in my alleged statements and ' hereby retract the same as the facts stated therein are not true and voluntary. I pray that my application may be taken on record and copy of the same is annexed for the officer of the Dept." G 5. Respondents, however, initiated a proceeding under Section 8(3) of the Act. A show cause notice was issued on or about 25.4.1995, the operative part whereof reads as under:- "NOW THEREFORE, the said Shri Vinod M Solanki is hereby required to show cause in writing (IN DUPLICATE) H A B c 1078 SUPREME COURT REPORTS [2008) 17 S.C.R. within· 30 days from the date of receipt of this memorandum, why Adjudication Proceedings as contemplated in· Section 51 of the Foreign Exchange Regulation Act, 1973 (46 of 1973) should not be held against him for the said contravention of Section 8(3) and 9(1) of the Foreign Exchange Regulation Act, 1973. IN ISSUING this memorandum, reliance is placed inter alia on the list of documents as per Annexure 'A' the original of the said documents will, on demand, be made available for inspection to the party or his lawyer or other authorized · representative at the office of the Deputy Director, Enforcement Directorate, Mittal Chambers, 2nd Floor, Nariman Point Bombay - 400 021 in his office by- prior appointment with him on any working day." 6. Pursuant to or in furtherance thereof cause was shown by the appellant, inter alia, contending that no reliance should D be placed on the retracted confessional statement unless the . same was corroborated substantially in material particulars by some independent evidence. 7. By reason of an order dated 1 19.3.1996, the appropriate authority, inter alia, relying on or on the basis of the confession E made by him imposed a consolidated penalty of Rs. 10 lakhs, F G H stating: "11. I have independently gone through the evidence on record too based on which the impugned show cause notice has been issued. The notice has abundantly and clearly explained the documents seized from him. He has also admitted to the offence in his statements recorded u/ s 40 of FERA, which to date, stand. These confessional statements are amply corroborated by the material evidence seized from him which is disclosed above. By not contesting the charges, either in reply to the Showcause. Notice or during Personal hearings fixed, these further stand uncontested and thus confirmed and admitted by the notice. 12. I have, therefore, no hesitation in confirming the charges in impugned SCN again the notice and >-- ..... , ~, VINOD SOLANKI v. UNION OF INDIA & ANR. 1079 [S.B. SINHA, J.] accordingly hold him guilty of contravention of Sec. 8(3) to A the extent of US $ 34,230/- in as much as he failed to utilize the said Foreign exchange for the purpose it was released to him. Further, he is also held guilty of contravention of charge u/s. 9(1 )(a) for the same amount in as much he deposited it in a Foreign bank account withounhe General 8 or Special exemption from the Reserve Bank of India." 8. Appellant preferred an appeal thereagainst before the Foreign Exchange Regulation and Appellate Board which on repeal of FERA stood transferred to the Appellate Tribunal for Foreign Exchange (for short, "the Tribunal") under the provisions c of Foreign Exchange Management Act, 1999. The Tribunal despite noticing the contentions raised on behalf of the appellant that no enquiry had been made by the Department ( 1) from the bank in which the transactions in question had taken place; (2) as regards the date on which the application was signed and by whom the foreign exchange had been acquired; D (3) whether the appellant had acquired the said foreign exchange from· authorized dealer on the basis of any forged import documents; (4) whether the alleged documents were not produced by him before any authorized dealer; and (5) whether the impugned order was based on the confessional statement E which was retracted on first available opportunity when he was produced before the Chief Metropolitan Magistrate, Mumbai for remand on 28.10.1994, dismissed the appeal, stating: "10. -In the present appeal the confessional statement of the appellant is acceptable in evidence. The appellant has F not brought out anything to displace his confessional statement to prove its untruthfulness or involuntary nature. Along with his confessional statements, there is seized documentary evidence coupled with attendant circumstantial evidence to demonstrate and prove the G charges against the appellant." 9. In arriving at the said finding, the Tribunal placed the onus of proof upon appellant th~t the confession was obtained from him by threat, coercion or force. The Tribunal held that retraction alone would not make the confession inadmissible H 1080 SUPREME COURT REPORTS [2008) 17 S.C.R. A and as even retracted confessional statement may be sufficient to hold the proceedee guilty of violation of the provisions of the Act, imposition of penalty was legally permissible. ~ ' It was furthermore held: B "18. The charges under Section 8(3) is proved against the appellant for having acquired foreign exchange by forging import documents and remitting it abroad to foreign nationals particularly When import documents relating to bogus firms along with stamps were recovered from his custody. The appellant has not been able to explain why \-,,..... c the names of persons Milan and Anil Verma were told by him to the officers of ED which, on enquiry were found to be wrong and what benefit could be given to him out of his wrong assertion made by him to Enforcement Officers. 19. According to confessional statement of the appellant, D bogus trading firms were established and run by him where he used to take foreign exchange for remittance to foreign . country for the purposes of import of goods but no import took place despite the fact that the foreign exchange was remitted to Hongkong. On the basis of aforesaid E discussion we are of the considered opinion that the remittance of foreign e~change was taken by the appellant for purposes of import of goods but no import of goods · was made and foreign exchange was credited on the bank account of foreign national abroacl where contravention of F Section 8(3) and 9(1 )(a) of the Foreign Exchange 1973 is clearly made out. Looking towards this situation, we are, of the cons.idered opinion that the impugned order , .. withstands judicial scrutiny and is liable to be confirmed arid upheld where the appeal is liable to be dismissed." G 10. Aggrieved by and dissatisfied therewith, the ~pp~llant preferred an appeal before the High Court. Concurring with the judgment of the Tribunal, the High Court, opined: "The burden is on the person retracting the confessional I~ statement to lead some evidence as to why the H confessional statement has to be rejected. No evidence VINOD SOLANKI v. UNION OF INDIA & ANR. 1081 [S.B. SINHA, J.] on that count was led. Coupled with the confessional A statement wherein some facts were recorded which was ... personal to the appellant alone, there were other ) documentary evidence coupled with the attendant circumstantial as noted by the tribunal to demonstrate and prove the charges against the appellant." B Appellant is, thus, before us. 11. Mr. Tarun Gulati, the learned counsel appearing on behalf of the appellant would, inter alia, submit: ~ I i. The courts below have wrongly placed the burden of proof on the appellant. c ii. As the provisions of Section 24 of the Indian Evidence Act are attracted also in the matter of confession made before the authorities under the Act, the findings arrived at, inter alia, relying on or D' on the basis of the purported confession made by appellant were wholly illegal and without jurisdiction. 12. Mr.P.V. Shetty, learned Senior Counsel appearing on behalf of the respondents, on the other hand, would contend: i. The burden of proof has rightly been placed on the appellant as he, in view of Section 106 of the Indian E Evidence Act, had special knowledge as to how he had entered into the transactions of import and on whose behalf. ii. The very fact that the appellant had given details of the transactions is a clear pointer to the fact that F only he and he alone knew thereabout and in that '""" view of the matter no illegality can be said to have ~ ' l been committed in placing the burden of proof on him. iii. The authorities under the Act having the power of G carrying out search and seizure as also issuance of summons on any person and as the person so ,.,\ summoned has a statutory obligation to make a true statement, confession made by him would not be hit by the provisions of Section 25 of the Indian H 1082 SUPREME COURT REPORTS [2008] 17 S.C.R. A Evidence Act inasmuch as when such ·a statement was made by him he was not an accused and the officer under the Act was not a police officer. 13. Section 8 of the Act imposes restrictions on dealings in foreign exchange. Foreign exchange can be acquired only B from a dealer authorized by the R~serve Bank of India. Subsection (2) of Section 8 of the Act prohibits entering into any transaction providing for conversion of Indian currency into foreign currency or foreign currency into Indian currency at rates of exchange other than the ones for the time being authorized c by the Reserve Bank of India without its previous general or special permission. ~ub-section (3) of Section 8, and Section 9(1 )(a) of the Act which are material for our p~rpose, read as under: "8. Restrictions on dealings in foreign exchange.- D · (1) ........... . F G H (2) ........... . (3) Where any foreign exchange is acquired by any person, other than an authorized dealer or a money-changer, for any particular purpose, or where any person has been permitted conditionally to acquire foreign exchange, the said person shall not use the foreign exchange so acquired otherwise than for that purpose or, as the case may be, fail to comply with any condition to which the permission granted to him is subject, and where any foreign exchange so acquired cannot be so used or the conditions cannot be complied with, the said person shall, within a period of thirty days from the date on which he comes to know that such foreign exchange cannot be so used or the conditions cannot be complied with, sell the foreign exchange to an authorized dealer or to a moneychanger." 9. Restrictions on payments.- (1) Save as may be provided in and in accordance with any general or special · exemption from the provisions of this sub-section which may be granted conditionally or unconditionally by the VINOD SOLANKI v. UNION OF INDIA & ANR. 1083 \.., [S.B. SINHA, J.] - Reserve Bank, no person in, or resident in, India shallA ( (a) make any payment to or for the credit of any ,. , person resident outside India" 14. As indicated heretobefore, the courts below proceeded on the premise that a confession was made by appellant, B although retracted later, that he had acquired foreign exchange during the period 1993-94 on the basis of forged import documents whereafter he got the same transferred to his bank acco_unt Nos. 564-000-4888-5 and No. 96300-1254-9 in ;.- .+ Standard Chartered Bank, Asian House VI Branch and' American E. Bank, Central Branch, at Hongkong and. c misutilized the said foreign exchange and failed to import any: rough diamonds for which purpose the same was acquired. 15. The questions which would arise for our consideration . are: (1) whether the appellant had made bald statement at the , time of retraction alleging threat and coercion so as to shift the ' D burden of proof from him to the Enforcement Directorate; and ' (2) whether consolidated penalty could have been imposed only on the basis of such retracted confession . ....._ 16. Indisputably, a confession made by an accused would . come within the purview of Section 24 of the Indian Evidence E Act, 1872, which reads as under: "24. Confession caused by inducement, threat or promise, when irrelevant in criminal proceeding.- A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession . F appears to the Court to have been caused by any ~ inducement, threat or promise, having reference to the . ' charge against the accused person, proceeding from a person in authority and sufficient in the opinion of the Court, to give the accused person grounds, which would appear G to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him." ,.. ~ 17. The proceeding under the Act is quasi criminal in ~ nature. Section 50 of the Act is a penal provision prescribing H 1084 SUPREME COURT REPORTS [2008] 17 S.C.R. .,/ A that in the event of contravention of any of the provisions of the Act or of any rule, direction or order made thereunder, a penalty ~, not exceeding five times' the amount or value involved in any ... such contravention may br imposed. 18. Section 71 of the Act provides for burden of proof in B certain cases. Sub-section (2) of Section 71 provides that the burden of proving that the foreign exchange acquired by such person has been used for the purpose for which permission to acquire 'ii was granted shall be on such person. 19. The Act is a special Act, which confers various powers +• c upon the authorities prescribed therein. Even the salutary .._ principles of mens rea and actus reus in a proceeding under the Act may not be held to be applicable. It is now a well settled principle that presumption of innocence as contained in Article 14(2) of the International Covenant on Civil and Political Rights D is a human right although per se it may not be treated to be a fundamental right within the meaning of Article 21 of the Constitution of India. [See Article 11 ( 1) of the Universal Declaration of Human Rights (1948) and Article 6.2 of the European Convention for E the protection of Human Rights and Fundamental Freedoms (1950) and Article 14.2 of the International Covenant on Civil and Political Rights (1966)] 20. Sub-section· (2) of Section 71 places the burden of proof upon an accused or a proceedee only when the foreign F exchange acquired has been used for the purpose for which permission to acquire it was granted and not for mere possession thereof. The Parliament, therefore, advisedly did not '1y make any provision placing the burden of proof on the accused/ ~ proceedee. G 21. The Act, thus, does not provide for a 'reverse burden'. No presumption of commission of an offence is raised under ~ the Act. Even in a case where the law provld-es for a burden ~ on the accused having regard to th~e- afor'ementioned r )--. I presumption of innocence as a human right, this Court in Noor H Aga vs~ State of Punjab & Anr. [2008 (9) SCALE 681] held VINOD SOLANKI v. UNION OF INDIA & ANR. 1085 - [S.B. SINHA, J.] - as under: A "114. Only when these things are established, a staten:ient made by an accused would become relevant in a prosecution under the Act. Only then, it can be used for the purpose of proving the truth of the facts contained therein. It deals with anothe! category of case which provides for 8 a further clarification. Clause (a) of Sub-section (1) of Section 1388 deals with one type of persons and Clause ~~ (b) deals with another. The Legislature might have in mind its experience that sometimes witnesses do not support the prosecution case as for example panch witnesses and c only in such an event an additional opportunity is afforded to the prosecution to criticize the said witness and to invite a finding from the court not to rely onithe assurance of the cowt on the basis of the statement recorded by the Customs Department and for that purpose it is envisaged D that a person may be such whose statement was recorded but while he was examined before the court, it arrived at an opinion that is statement should be admitted in evidence in the interest of justice which was evidently to make that situation and to confirm the witness who is the author of such statement but does not support the E prosecution although he made a statement in terms of Section 108 of the Customs Act. We are not concerned with such category of witnesses. Confessional statement of an accused, therefore, cannot be made use of in any - manner under Section 1388 of the Customs Act. Even F t otherwise such an evidence is considered to be of weak -