JUDGMENT
V.S. Kotwal, J.
1. The mystery of an Air Mail has left behind its haunting trial. The chapter opens when the husband left his house located in Grand Paradi Apartments, August Cranti Marg in this metropolis to resume his duty in the office of Swiss Air where he was working, unmindful of the event that was followed on that fateful day. The wife was all alone in the house who had also no inkling when the door was trapped and she had to receive unwelcomed guests as she was confronted with the Enforcement Officers at the entrance. They inquired about the husband and on learning that he was away they deputed some one to fetch him from his office. The other officers entered the premises and awaited his arrival. After some time the person who deputed came in the company of the husband back to his residence. The Enforcement Officers were on the official duty as they wanted to effect the search of the premises after having received credible information that the husband was involved in a transaction offending the provisions of Foreign Exchange Regulations Act (‘FERA’). The time was roughly about 9-00 A.M. The services of some panch witnesses were requisitioned. In the search they came across an envelope containing some documents including the list mentioning some names and some figures and that postal envelope then came to be attached under panchnama on account of generating a feeling of suspicion in the mind of the officers. They ostensibly felt that it has the direct nexus with the Hawala transaction as remittance of certain currency to the persons residing outside India and thus was in proof of the allegations of violation of certain provisions of FERA. No other incriminating article was found. The wife has to watch the entire show helplessly. The turmoil however was not to over because the husband was then taken by the officers to the Enforcement office for interrogation, once again leaving the wife all alone in the house. The said husband is the appellant herein. All this happened on 7th July, 1981, round about 9-00 A.M. the venue being the residential premises of Dinesh Parekh in Grand Paradi Apartments.
2. Then started the second phase of oral nation which ultimately transformed itself into the statements being recorded of the appellant under section 40 of FERA. He was subject to constant and continuous interrogation in a vigorous manner right from that time till about 11-00 A.M. on the next day i.e., 8th of July, 1981 whereafter he was produced before the learned Magistrate for remand. Some statements thus came to be recorded during that span which according to the officers had a thread of continuity. Some other names were disclosed which the officers felt were the names of co-conspirators in the transaction. They were contacted and some of them were brought to the office and their statements were also recorded.
3. The composite effects of all the relevant statements generated a reasonable belief in the mind of the officers that all of them were involved in the said Hawala transaction. In effect it was felt that one Rambhai Patel resident of Baroda handed over and amount of Rs. 16,63,000/- Indian Currency to the appellant some time in the month of April or May 1981. The appellants was then asked to write owner the names of five or six persons indicating the certain amount to be remitted to each of them and that list was also given to the appellant by Rambhai Patel. The appellant in turn is alleged to have handed over the said list along with the same currency to one Shantilal Shah who was also on the same mis. The said Shri Shantilal Shah in turn handed over the list and amount to one Devchand Vasa for being transmitted to one R.H. Pavri in Hongkong. There are divergent versions as to how this list and the amount travelled and which were the agencies. However, it is alleged that the said Pavri on receipt of the said list and the amount remitted the equivalent amount in foreign currency to five or six different persons stationed in United State, United Kingdom and Switzerland as per the direction received by him through the list. After completing the mission the said Pavri sent back post the said list along with the application for cable tractor of the amounts on the address of the appellant and in the name. This envelope by air mail was posted at Hongkong on 27th of May, 1981 though as a tremendous co-incidence it reached the house of the appellant on 7th of July, 1981 at about the same time when equally co-incidentally the effecting of the raid was in progress. This synchronising will have to be seriously considered and which is bound to invite some comments either way. It is the bunch of these five documents that were found in the said postal envelope in the bed room of the appellant which was attached under panchanama as already stated. Thus it is alleged that there is a common bond between these five persons and an under- current of a common mission in remitting the said amount to the persons staying outside India and which transaction incurred the penal liability for contravention of the offences under section 8(1) and 8(2) read with section 64(2) of the FERA. It is alleged that the statement revealed the involvement of these persons in other transactions also which could entail into their liability under other provisions of FERA including section 9(1)(f)(i) and section 9(1)(a) with which however we are not much concerned in this proceeding since all of them have been exonerated of the other charges the residue being the liability only under section 8(1) and 8(2) of the Act. The Statement of Shri Pavri came to be recorded though after quite long time. It may be mentioned at this juncture itself that the statement of Shri Devchand Vasa is however completely exculpatory disowning every knowledge much less any involvement in the transaction.
4. Armed with this material the Department initiated an adjudicating proceeding under the FERA. In all five-show cause notices were issued to these persons the first being dated 6th of July, 1982 and it is this notice which is the subject matter of this proceeding. In so far as the other four notices are concerned, their consideration need not detain us because admittedly all of them have been exonerated of all the said four notices and the Department appears to have accepted the said decision. Therefore, it would be necessary only to concentrate on the first notice dated 6th of July, 1982. It mentions with the necessary details as to how there has been contravention of sections 8(1) and 8(2) read with section 64(2) of the FERA and as to how the list and the moneys transferred from first source to the last and as to how the said Pavri being the last source remitted the amount of U.S. dollars 1,66,300/- from Hongkong to five different persons staying out of India.
5. The learned Adjudicating Officer who conducted the adjudication proceeding recorded the evidence of the officers of the Enforcement Branch and came to the conclusion that the allegations were established against the appellant, Shantilal Shah and R.H Pavri qua the remittance of the amount of U.S Dollars 1,66,300/- He however completely exonerated the two other persons including Shri Rambhai Patel who is really the starting point that also Shri Vasa who is the person who was supposed to have delivered the articles to R.H. Pavri. Thus in effect the learned Officer picked up only the appellant and Shantilal Shah casting the responsibility on their shoulders but exonerated the others who are the integral part in this transaction and this would have its own repercussion. For that purpose the learned Officer mainly relied on certain items of evidence such as the confession statement of the appellant; the confessional statement of Shantilal Shah ; the finding of the incriminating document in the house of the appellant and also the Handwriting Expert’s opinion because it was alleged that at least on one page being page No. 9 the said bunch of document the writing is in the hand of the appellant. This page 9 contains the list of the persons in whose favour the amount is remitted by Pavri. Admittedly none of those documents contains the signature of any of the persons including the appellant.
6. In keeping with these findings the learned Adjudicating Officer imposed a personal penalty of Rs. 10,00,000/- on the appellant, Rs. 1,00,000/- on Shantilal Shah and Rs. 10,000/- on Shri R.H. Pavri by his order dated September 30, 1983.
7. This order was placed under challenge in Appeal No. 306 of 1983 by the appellant while Shri Shantilal Shah filed separate Appeal being No. 298 of 1983 before Foreign Exchange Regulation Appellate Board (Appellate) which was presided over by the learned Chairman and the Member. The matter was contested on all counts by both the sides. It was strenuously contended that the impugned order was not only vulnerable but unsustainable because of several infirmities. Thus in effect it was canvassed that the so-called confessional statements recorded under section 40 of the FERA are in the first instance neither voluntary nor true and secondly all those were retracted except of R.H. Pavri, whereas the statement of Vasa was exculpatory and what is of more importance is that the statement of Patel was not recorded at all. It was also canvassed then there have been fragrant violation of principles of natural justice. In that category they contended that the postman, the panchas and the handwriting expert were not offered for cross- examination, though specifically asked for and even though they were material witnesses and furthermore even the copies of the relevant documents were not furnished to the appellant well in advance which caused immense handicap to the appellant. A substantial argument was then advanced about the most suspicious manner in which the envelope containing the said documents was alleged to have been found in the bed room of the appellants’s residence. It was also contended that there was absolutely no corroboration whatsoever that the appellant had anything to do with the transaction or that the document as he had denied his handwriting as also his complicity. The two divergent versions as reflected in the show-cause notice were brought to the notice of the Appellate Board. In analysis it was ultimately submitted that it was the case of absolutely no evidence and the impugned order was not sustainable. It was also incidentally indicated that there has been unjustified disparity in imposing the quantum of penalty against the three persons and is was really not clarified as to why the entire warth was projected against the appellant looking to the most disproportionate and heavy amount of penalty imposed on him.
8. The Appellate Board accepted all these contentions raised on behalf of the appellant on merits and this is the most striking feature of the entire proceeding. Not only that but in no unmistakable terms they condemned the manner in which the allegation of finding of the envelop was made and equally in express terms they recorded a firm finding that it was the product of manipulation and concoction. They also upheld the validity of the contention of the violation of principles of natural justice. They also held that there is nothing to show that the statements were either voluntary or true and further held that even assuming otherwise still there was hardly any corroboration to these confessional statements of the appellant and Shantilal Shah. They therefore felt no reservation whatsoever to upset the finding recorded by the Adjudicating Officer and they expressly set it aside. Normally in consonance with their approach and the finding there should have been fullstop when they set aside the impugned order on account of several deficiencies catalogued by them. However, to the utmost surprise of every one and in the most cryptic manner they recorded the last paragraph being No. 16 of to the order which contains more queer directions to the effect that inspite of setting aside the impugned order in the face of glaring infirmities they remanded the matter to the Adjudicating Officer for a fresh inquiry and not stopping at that they virtually granted liberty to the Department as also to the Officer not only to adduce whatever evidence they like but going backward at the inception even to issue fresh show- cause notice as was deemed being proper. As would be presently pointed out even after putting terrific strain on one’s imagination and intelligence it is also practically impossible to trace any rationale in the final impugned order recorded by the Appellate Board after having thus recorded in firm manner the utter vulnerability of the entire proceeding. Upto that stage as I would presently point out the Appellate Board went in the most logical and harmonious manner and on the correct track. They reached the correct conclusion equally in the correct manner. However, without any rhyme or reason and on the top of it without assigning a single reason whatsoever they deviated from the said logical path and entered the most vulnerable track and gave those directions by remanding the matter. It is this order dated March 5, 1986 that is being placed under challenge in this first appeal under section 54 of FERA on behalf of the appellant Shri Dinesh Amrutlal Parekh.
9. Shri. K.M. Desai, the learned Counsel, raised multifold contentions more or less on the same pattern which were canvassed before the Appellate Board the validity of which having been upheld in their entirety and which I have already indicated though in the skeleton form. His main grievance is that after having recorded such finding on all the aspects in favour of the appellant without displaying the slightest hesitancy it is really most irrational to find that the Board ultimately even after setting aside the impugned order directed remand of the matter and equally hurting feature is that the entire episode is sought to be reopened right from the beginning giving a further new lease to the Department to mould their proceeding so that the impact of the deficiencies which are brought on record could be plugged. He, therefore, takes a serious objection to the final order recorded by the learned Members of the Board. According to him, therefore, in the fitness of things in the interest of justice as also on the merits the order should stop at setting aside the adjudication order and fully exonerating the appellant. He has pressed into service all the infirmities which were enlisted by the Board itself. Shri Hombalkar, the learned Additional Government Pleader appearing on behalf of the Government, while countering these contentions though endeavoured could not seriously much less successfully press into service any valid reason for not accepting the findings of the Appellate Board. In effect the said findings are not seriously challenged in this proceeding and admittedly those were not challenged separately by the Department at all. On this forum also those are practically accepted, though he strenuously endeavoured to support the latter part of the order of remand. He, contends that some features are ignored by the Board while some are not properly considered. In any event, according to him, the order of remand would tent to serve the ends of justice. He, therefore, supported the impugned order on its own merits on all counts.
10. The structure of the allegations and factual aspects has been given out with the necessary details and the same therefore need not be restated. To recapitulate the only show-cause notice that survives in this proceeding relates to U.S. Dollars 1,66,300/- remitted from Hongkong to different sources staying outside India contravening the relevant provisions of FERA and section 8(1) and 8(2) read with section 64 of the said Act. This is more so because all the delinquents are exonerated of the other show-cause notices. It is also worth noting that even the Adjudicating Officer has exonerated Rambhai Patel and Devchand Vasa of all the charges and in that behalf he has accepted the contention that there must be independent corroboration before any confessional statement can be relied upon much less that of the co-delinquent. The allegations on facts are that Rambhai Patel made the appellate to write the list of persons, their addresses and the figures of certain amounts against their names and gave that list to the appellant along with the said amount of U.S. Dollars 1,66,300/- with certain directions to hand over the same to Shantilal Shah. The appellant followed the directions and handed over the list and the amount to Shantilal Shah. Then entering the third person Devchand Vasa, Shantilal Shah handed over the list and the amount to Devchand. The said person Devchand Vasa was instructed by Rambhai Patel to hand over the said list and the amount to R.H. Pavri at Hongkong. As to how the list and the amount reached hand of Shri R.H. Pavri is engulfed in much controversy. However, R.H. Pavri did receive the same and he in turn remitted the said amount to the said five persons as mentioned in the list from Hongkong and he sent back the list and the bank documents in the name of the appellant on his Bombay address and which was seized under panchanama on the date of the raid. That is how the circuit is sought to be made complete.
x x x
10. Shri Hombalkar, the learned Government Pleader, endeavoured to submit that the order of remand would be justified if it is held that certain evidence was not adduced by the Department while certain features were not considered by the Appellate Board. He also made a grievance that there are no specific findings recorded by the Appellate Board but they have merely reproduced the arguments of both the sides. As regards the second contention it is more imaginary than real because the judgement of the Appellate Board which is quite exhaustive and well reasoned makes the position quite clear that they had taken each point separately, dealt with it in the context of the rival contentions and have recorded a clear finding on each point against the Department. Since it is already discussed in details, reproduction can well be avoided. I have, therefore, no reservation to hold that there are clear findings recorded by the Appellate Board on all facets of the controversy.
11. As regards the first contention it is also devoid of any substance. This is not a case where any evidence was discovered subsequent to the completion of the proceeding or that some evidence could not be procured because of the difficulties beyond the control of the Department. Non-examination of Patel was not due to appellant’s fault and this cannot be improved upon because Shri Patel has left India now and it is claimed that even now he cannot be called. However, his participation was through his Counsel only thought the show-cause notice could not be served on him and through his Counsel he denied all the allegations. Thus that aspect cannot be over-looked. However, even if Patel was to be interrogated and his statement was recorded under section 40 of the Act, it cannot be presumed that it would be necessarily have been inculpatory ; that even otherwise it would have been the statement of co-accused which if made could have even been retracted and thus could not be of much assistance against appellant and furthermore in the absence of any corroboration it could not be much avail even against the maker whether retracted or not . That the panchas and the postman were available can hardly be controverted and yet in their wisdom the Department did not feel like examining them and the chapter is closed in that field also. The same applies to the non-examination of the Hand-writing Expert. It is futile to contend that the Board has not considered the evidence of the Hand-writing Expert. On the contrary the judgement takes stock of every situation. It is a matter of record that the list does not contain signature of any one much less of the appellant and the same is the case with reference to other documents. The appellant had denied his hand-writing on the list and there is absolutely nothing to contradict his statement meaning thereby that there is no independent corroboration to the allegation that the list is in his hand-writing. Even the bare allegations that the letter was posted on the appellant’s address and sent to him cannot improve the case because the very foundation in that behalf is suspect. Much reliance was placed by the Adjudicating Officer on the statement of R.H. Pavri and he was impressed by the fact that statement was not retracted and even in the proceeding that statement was accepted. This however, does not improve the case for an obvious reason that R.H. Pavri is nothing but a short of accomplice and he is one of the main persons who actually remitted the amounts in foreign currency to the people residing outside India. His statement is therefore, obviously that of a co-accused even assuming that it is in the nature of a confession the limitation of such a statement need not be a re-stated. As stated, in the statement of Parekh the name of R.H. Pavri does not figure but there is a reference to the Pavri Brothers and this does not fit in with the statement of Pavri Statement of Pavri himself. Once again as already discussed the officer tried to transplant something more in the appellant’s statement through the back door method through the statement of Pavri who is a co-accused. Furthermore, there is direct conflict between the statement of Pavri and those of appellant and Shah and the introduction of the Sindhi gentleman does not fit in. Pavri’s statement was recorded late as on 17th October, 1981. Significantly according to him, the list was given to him by the appellant in Bombay whereas according to the appellant’s statement the list was given to Shantilal Shah and he had not met Pavri at all. The conflict cannot be reconciled. The same list could not be given to two persons at the same time. Pavri’s statement therefore creates further difficulty. This by itself would make the truthful nature of the appellant’s statement or may be of both the statements highly debatable and disputable. There is thus no substance in any of these contentions as it is manifestly clear that the Appellate Board has considered every pros and cons of the situation in proper perspective and has recorded a clear finding on all the facets of the controversy supplemented by cogent reasons which in turn are supported by the material on record. In contrast thereto, the order recorded by the Adjudicating Officer is full of infirmities and deficiencies so much so that at every stage he has deviated from the normal track and has practically carved out a new case in favour of the Department. All these reasons are not only vulnerable but wholly unsustainable.
12. I may incidentally observe that while exonerating the appellant and others vis-a-vis other show-cause notices the Adjudicating Officer has observed that there is no corroboration to the retracted confession. In one notice though Shri Rambhai Patel was sought to be involved even by the statement of the appellant and others, still it was found that Rambhai patel was not in India at that time, while in other matter the Adjudicating Officer himself felt improbable that Shri Rambhai Patel would have entrusted to the appellant with the subsequent two amounts out of which one figures in this proceeding in the month of April 1981 after he had already been cheated regarding some amounts. If this is found to be so, though in respect of the other show-cause notice, then the very foundation that Rambhai Patel giving the list and the amount to the appellant itself gets exposed and that being the integral part of the entire episode it would obviously have the direct impaction on the complicity of the appellant also.
13. A grievance was made that stay was granted by this Court regarding the remand as also execution of the adjudication order and yet a complaint came to be filed against all the delinquents in the Court of the Learned Chief Metropolitan Magistrate, Bombay. The learned Counsel endeavoured to submit that this was in direct disregard to the order of stay. Since this is post event and since the appellant is being exonerated, it is not necessary to have a further probe in that behalf. Similar would be the case about the grievance that the penalty amount has not been refunded even after the order of the Adjudicating Officer was set aside by the Appellate Board.
14. As stated, in the concluding analysis the Appellate Board in paragraph 15 observed as :—
“In view of the foregoing we are satisfied that the impugned order suffers from several infirmities and is accordingly set aside.”
Really speaking the curtain should have been brought down and there should have been full stop. Before the conclusion, it did not mention that there was inadequate material for pronouncing the judgment or that the Department was handicapped and were denied of a reasonable opportunity. The finding is clear on every point that the evidence that was led was unacceptable while some evidence which was readily available was not tendered without any fault on the part of the appellant and that the appellant has been denied of reasonable opportunity. If at all there was any denial of fair and just trial the issue should have been answered in favour of the Appellant and not in favour of the Department and if that be so, then there was no question of directing the retrial because that would have been in jeopardy with the interest of the appellant and thereby opening the entire chapter so that the Department could mould its evidence and the Adjudicating Officer who has displayed much susceptibility to correctly read the situation and to interpret every item anyhow in favour of the Department even at the cost of inventing or carving out a new case the opportunity has been given in such situation even to issue fresh show-cause notice so that all the defects and infirmities could be wiped out. As discussed earlier, this is not a case where the Department is handicapped in any manner or were denied of any opportunity or that the material was not sufficient to adjudicate or even that the interest of justice demanded otherwise, because even the Board has accepted that there is clear attempt at manipulation on crucial points, latter figuring prominently in that field. If that be so, then it would really be travesty of justice if the entire field is reopened thereby opening the floor gates for a potential mischief when the matter was completely brushed aside on merits. Doing otherwise would be destroying the ends of justice and causing undue harassment and prejudice to the appellant. Inspite of that one is really surprised and to borrow the terminology used by the Board itself though in the different context that it passes comprehension. As to how after completing paragraph 15 paragraph 16 was introduced which reads as :—
“In the result, the appeals are required for fresh disposal in the light of the foregoing and in accordance with law. The Department is at liberty to amend or modify the show-cause notice if it deems it necessary to do so.”
After going on the right track upto the end the Board unfortunately fumbled on the crucial point instead of setting aside the impugned order this paragraph was introduced. It does not contain even a single reason as to why the Board felt likewise to remand the matter and secondly it also does not contain even a semblance of rationale to justify such an order. Really speaking the order should have come to an end after the conclusion of paragraph 15. This order containing the last paragraph 16 therefore, is unsustainable by any yardstick and on any premise.
15. I may incidentally observe that the search of the residential premises of the appellant was effected on 7th of July, 1981; the show-cause notice in question was issued on 6th of July, 1982; the proceeding before the first authority was concluding on 30th of September, 1983 while the appeal was concluded on 5th of March, 1986 and the appeal against that is being disposed of in September, 1987. The appellant has already undergone nightmare and the agonies of a protracted trial, he has also lost the job and has suffered further agonies. Re-opening of the entire issue would cause further harassment as still further substantial period of time is bound to be consumed.
16. Shri Hombalkar, the learned Government Pleader, submitted that only a limited field is available under section 52(3) of the Act inasmuch as an appeal would lie to this Court against the order of the Appellate Board only on question of law and according to the learned Additional Government Pleader the appeal itself is not maintainable involving no question of law. On the glaring features and the findings to say that this appeal is not maintainable as not involving any question of law would be utter misnomer and misconception. In my opinion, the situation is so transparent that not only the appeal lies but on merits even on question of law it deserves to be allowed outright.
17. Even accepting the vesting of jurisdiction of the Appellate Authority under the general law, to direct remand or retrial while disposing of appeal and even assuming likewise even under the FERA and thereby not restricting to the terminology used in section 52(3) of the Act, still some of the illustrations are well recognised and the foremost is that it should be sparingly utilised and furthermore it should occur only in certain contingencies and not as a matter of course and in any event certainly not to start a second inning and thereby giving one party a chance to plug the loop holes. Assorted considerations must control such discretion. Thus in section 386 of the Criminal Procedure Code a power is spelt out for directing retrial and so also under section 391 of the said Code, the Appellate Court may direct recording of additional evidence if it is found to be necessary on recording its reasons. The over-riding restrictions, therefore, are apparent. Similar position is envisaged under the Code of Civil Procedure regarding the power of retrial and production of additional evidence while dealing with an appeal under Order 41, Rule 23(a) and Rule 27. In that field also similar restrictions are necessary when it is envisaged that the Appellate Court must feel that the retrial is absolutely essential while several qualifications have hedged regarding the Appellate Court’s power to direct additional evidence. Some of the decisions may well be referred to in that field.
18. In Ramanlal Rathi v. The State, 52 Criminal Law Journal, 301, it is observed by the Calcutta High Court though accepting the permissibility and the retrial has annexed a note and caution and observed as—
“If at the end of a criminal prosecution the evidence leaves the Court in doubt as to the guilt of the accused the latter is entitled to a verdict of not guilty. A retrial may be ordered when the original trial has not been satisfactory for particular reasons. …….But I have never known of a case where a retrial can be ordered on the ground that the prosecution did not produce the proper evidence and did not know how to prove their case. ……It was for the prosecution to show that there was no permit. ……On the State of evidence the petitioner was entitled to be acquitted and the learned Judge should not have ordered a retrial. It is true that this case is a serious one, but the seriousness of a case does not warrant an order for a retrial. Where the prosecution have conducted a prosecution and failed on the merits then I can see no ground whatsoever for ordering new trial. Had there been technical defects or anything of that sort in the original trial which vitiated the trial then a new trial might have been ordered. But in this case the whole of the evidence for the prosecution was heard and did not establish the prosecution case. What the learned Additional Sessions Judge has done in ordering a new trial is to give the prosecution a second opportunity to establish their case and further he has advised them on how best to do it.”
19. In Gulam Mohd. and another v. State, A.I.R. 1961 Jammu and Kashmir, 55, it is observed as—
“If additional evidence is allowed to be adduced in such a case, the Court would be allowing in truth and effect a fresh prosecution to be launched after remedying the defects supplying the deficiencies which beset the prosecutions. This certainly would not be just or fair to the accused persons; and to adopt such a course in the broad name of justice under section 428 of the Criminal P.C. is undesirable.”
20. In Abinash Chandra Bose v. Bimal Krishna Sen and another, A.I.R. 1963 Supreme Court 316, the Supreme Court observed as —
“In all civilised countries, criminal jurisprudence has firmly established the rule that an accused person should not be placed on trial for the same offence more than once, except in every exceptional circumstances. In this case the complainant had the fullest opportunity of adducing all the evidence that he was advised would be necessary to prove the charge against the accused person. ……The prosecution took its chance of having a decision in its favour on the evidence adduced by it before the trial Court. That Court was not satisfied that that evidence adequately reliable to bring the charge home to the accused. The accused was thus acquitted. On appeal it was open to the High Court to take a different view of the evidence, if the facts and circumstances placed before it could lead to the conclusion that the appreciation of the evidence by the trial Court was so thoroughly erroneous as to be wholly unacceptable to the Appellate Court. If the High Court could come to that conclusion, it could have reversed the judgment and converted the order of acquittal into an order of conviction. But it should not have put the accused to the botheration and expense of a second trial simply because the prosecution did not adduce all the evidence that should and could have been brought before the Court of first instance. It is not a case where it is open to the Court of Appeal, against an order of acquittal, to order a retrial. ……Simply because the accused happened to be a lawyer would not be ground for subjecting him to harassment a second time, there being no reason for holding that his prosecutor has not a fair chance of bringing the charges home to him. ……The High Court was not sitting on a disciplinary proceeding for professional misconduct. It had to apply the same rules of Criminal jurisprudence as apply to all criminal trials and in our opinion he only reason given by the High Court for ordering retrial is against all well established rules of criminal jurisprudence. ……Hence, in our opinion, the order or retrial passed by High Court is entirely erroneous and must be set aside.”
21. In Nemai Adak and others v. The State, , it is observed as—
“Retrial, in our opinion, should not be directed if evidence in the case is not sufficient to uphold a conviction. That would leave scope for filling up the lacuna in evidence to the great prejudice of the accused. In this view of the matter we hold that there should be any retrial in the case and even though undoubtedly the case was a serious one.”
22. In C.N. Krishna Murthy v. Abdul Subhan and another, A.I.R. 1965 Mysore 128, it is observed as—
“In deciding the question whether a retrial should be ordered or not, the Court should bear in mind the harassment the accused had already gone through, the time that has elapsed between the date of the commission of the offence and the date of the order of retrial, the expenditure that might have been incurred by the defence as well as by the prosecution and the nature of the evidence available against the accused with a view to find out whether in the circumstances of the case there are valid reasons to order a retrial.”
23. As regard the necessity to observe principle of natural justice and the concept of reasonable opportunity a few ratios can be quoted with advantage. In Town Area Committee, Jalalabad v. Jagdish Prasad and others, it is observed as—
“A reasonable opportunity is a term of well known legal significance and includes an opportunity given to the employee to cross-examine the witnesses examined against him and to lead defence in support of his version.”
24. In State of Mysore and others v. Shivabasappa Shivappa Makapur, , it is observed as—
“In respect of taking the evidence in an inquiry before such Tribunal, the person against whom a charge is made should know the evidence which is given against him, so that he might be in a position to give his explanation. When the evidence is oral, normally the examination of the witness will in its entirety, take place before the party charged, who will have full opportunity of cross-examining him.”
25. In Sur Enamel and Stamping Works Ltd. v. The Workmen, A.I.R. 1973 Supreme Court, 1914, the Supreme Court observed as—
“An enquiry cannot be said to have been properly held unless, (i) the employee proceeded against has been informed clearly of the charges levelled against him. (ii) the witnesses are examined ordinarily in the presence of the employee–in respect of the charges, (iii) the employee is given a fair opportunity to cross-examine witnesses, (iv) he is given a fair opportunity to examine witnesses including himself in his defence if he so wishes on any relevant matter……”
26. In Executive Committee of U.P. v. Chandra Kiran, , the observations run as—
“If the Enquiry Officer simply relies upon the records as well as the opinion derived from various persons which has not been put the employees for cross-examination, the enquiry is vitiated.”
27. As regard the impact of the retracted confession against the author of the maker it is now well settled that the court at the threshold must be satisfied that the same is voluntary in character and truthful in its contents and it is thereafter that inspite of the existence of these features as a matter of prudence the Court would normally insist on corroboration though such degree may vary in the context of the quantum of corroboration. This is high lighted in the ratio in State of Uttar Pradesh v. Boota Singh and others, , when it has been held in terms that a retracted confession may be relied upon only if it is substantially corroborated by independent evidence or circumstances.
28. As regard the worth of the confession of the co-accused and its impact against the other accused the point is well settled. If it is a mere statement it has no relevance and it becomes confession of a co-accused only if it inculpates the said co-accused. The approach to such confession of a co-accused has been very aptly illustrated by the Supreme Court in Haricharan Kurmi v. State of Bihar, , wherein it is held that it is no evidence in the strict sense under section 3 of the Evidence Act though at the most it would be the evidence in generic sense and the Court cannot start with such confession of the co-accused but it must begin with other evidence then and after it has formed its opinion with regard to the quality and effect of the said other evidence and only then it is permissible to turn such confession “in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence ” and thus it serves “to lend assurance to fortify the Court’s faith in the belief and conclusion based on the other evidence” and thereby “to lend additional assurance to the conscience of the Court to the correctness of such a conclusion of guilt reached on the basis of other evidence”. If it is retracted, it obviously create further difficulties.
29. As aptly observed in Muluwa son of Binda and others v. The State of Madhya Pradesh, , the evidence of infirm and unreliable nature or weak type of evidence does not become reliable by corroboration through the evidence which is equally unreliable and which may squarely apply to different items which themselves are infirm requiring corroboration.
60. It is now well settled that the adjudication proceeding is quasi criminal in nature and, therefore, the burden would lie on the Department to establish the facts alleged and also further establish that the facts alleged constitute the liability and they have also to treat the proceeding on the same platform as a criminal proceeding so that an element of arbitrariness does not influence the decision and process of appreciation at least to a substantial extent are controlled by established legal norms. In Amba Lal v. Union of India, A.I.R. 1961 Supreme Court 164, in respect of such a proceeding it is observed as—
“To such a situation, though the provisions of Code of Criminal Procedure or Evidence Act may not apply except in so far as they are statutorily made applicable, the fundamental principles of criminal jurisprudence and of natural justice must necessarily apply. If so, the burden of proof is on the Customs authorities and they had to bring home the guilt to the person alleged to have committed a particular offence under the said Acts by adducing satisfactory evidence……”
Section 106 of the Evidence Act in terms does not apply to a proceeding under the said Acts, but it may be assumed that the principles underlined the said section is of universal application and if section 106 of the Evidence Act is applied, then by analogy the fundamental principles of criminal jurisprudence must be equally invoked……If so, it follows that onus to prove the case against the appellant is on the Customs Authorities…….”
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