Page 173 - ELT_1st June 2020_VOL 372_Part 5th

2020 ] MANAK KALA v. UNION OF INDIA 707

cisions of this Court wherein reliance has been placed for supporting such
contention but we must also notice that in some of the cases retracted con-
fession has been used as a piece of corroborative evidence and not as the
evidence on the basis whereof alone a judgment of conviction and sentence
has been recorded. [See : Pon Adithan v. Narcotics Control Bureau : (1999) 6
SCC 1)]”
18. In K.T.M.S. Mohd. v. Union of India : (1992) 3 SCC 178, the Supreme
Court had held that the voluntary nature of a statement is sine qua non for the
authorities to act on it. The Court had also explained that merely because a
statement is retracted does not mean that the said evidence was unlawfully ob-
tained, however, the Court intending to act on such statements as being volun-
tarily made, is required to apply its minds to its retraction and to reject the same
for reasons to be set down in writing. The relevant extract of the said decision is
set out below :-
“34. ...But suffice it to say that the core of all the decisions of this Court is
to the effect that the voluntary nature of any statement made either before
the Customs Authorities or the officers of the Enforcement under the rele-
vant 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 in-
ducement, threat, coercion or by any improper means that statement must
be rejected brevi manu. At the same time, it is to be noted that merely be-
cause a statement is retracted, it cannot be recorded as involuntary or un-
lawfully obtained. It is only for the maker of the statement who alleges in-
ducement, threat, promise, etc. to establish that such improper means has
been adopted. However, even if the maker of the statement fails to establish
his allegations of inducement, threat, etc. against the officer who recorded
the statement, the authority while acting on the inculpatory statement of
the maker is not completely relieved of its obligations in at least subjective-
ly applying its mind to the subsequent retraction to hold that the inculpato-
ry statement was not extorted. It thus boils down that the authority or any
Court intending to act upon the inculpatory statement as a voluntary one should
apply its mind to the retraction and reject the same in writing. It is only on this
principle of law, this Court in several decisions has ruled that even in pass-
ing a detention order on the basis of an inculpatory statement of a detenu
who has violated the provisions of the FERA or the Customs Act, etc. the
detaining authority should consider the subsequent retraction and record
its opinion before accepting the inculpatory statement lest the order will be
vitiated.”
(emphasis supplied)
19. In the present case, neither the Adjudicating Authority (Deputy Di-
rector, Enforcement Directorate) nor the appellate authority (Special Director,
Appeals) had applied their minds on the question whether the statement made
by Ashish Jain was voluntary in view of its retraction on the very next day. In
fact, the Tribunal had proceeded on the basis that it was accepted by the Appel-
late Authority (Special Director, Appeals) that the statement of Ashish Jain had
no evidentiary value.
20. This Court is of the view that the statement of Sh. Ashish Jain could
not be relied upon as, first of all, it was retracted on the very next day. And, sec-
ondly, the statement was very vague and bereft of any particulars, inasmuch as,
it did not name or describe any person from whom funds had been received and
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