1. All these appeals arise from common Order-in-Original passed by the Commissioner of Customs by his order dt. 4.4.1996. By this order, he has imposed the penalties in the following manner:-- _____________________________________________________________________ S.No. Name of the Notice Amount of Penalty _____________________________________________________________________ 01. Shri Achar, Rs. 5,00,000.00 (Rupees S.o Shri Sambe five lakh only) 02. Shri Guliya Rs. 2,00,000.00 (Rupees S/o Shri Mangal two lakh only) 03. Shri Nihal Rs. 2,00,000.00 (Rupees S/o Shri Baroch two lakh only) 04. Shri Peerana Khan Rs. 2,00,000.00 (Rupees S/o Shri Haxi Samana two lakh only) 05. Shri Bhoore Khan Rs. 50,000.00 (Rupees S/o Shri Roje Khan fifty thousand only) 06. Shri Hayat, Rs. 50,000.00 (Rupees S/o Shri Khabad fifty thousand only) 07. Shri Murad, Rs. 50,000.00 (Rupees S/o Shri Sheru fifty thousand only) S/o Shri Jinde Khan twenty thousand only).
_____________________________________________________________________ 2. The appeals of Shri Bhoore Khan, Shri Hayat and Shri Murad are not listed for hearing. The Commissioner also ordered for absolute confiscation of 252 F.M. Gold Bsicuits weighing 29,393,280 Kgs, 10 pes of Gold weighing 245.450 gms. Gold Ornaments weighing 58 gms., Silver ornaments weighing 592 gms, Textile and Miscellaneous goods valued at Rs. 2,000/-, totally valued at Rs. 1,34,91,919.00 under Section 111(b) and 111(d) of the Customs Act, 1962, along with cloth, HDPE bag, Iron and Aluminium Boxes used as packing material under Section 118(a) of the Customs Act, 1962. The Learned Commissioner has proceeded to confirm the order on the basis of the statements recorded from the various persons. He has dealt with all the aspects raised by the Counsels before him to negative them and to hold that the appellants are involved in smuggling of the gold on the basis of their own inculputory nature of the statements. He has found corroboration to the charges from the statement of witnesses. He has held that the statements of Shri Bhoore Khan and Shri Achar Rajad, S/o Jinde Khan recorded under Section 108 of the Customs Act, 1962 are corroborated with that of Shri Achar S/o Sambe and held that he was very much involved in this case and the gold packets contained his name written on a packet, which proves that Shri Achar was very much involved in the act of smuggling. He has noted that Shri Bhoore Khan had retracted his statement vide his letter dt. 22.5.95 after a gap of about one and a half year which appears to be an 'after thought. The statement of the seizing officer Shri Vikram Singh dated 2.1.94 revealed as to how he had intercepted and this was also confirmed by Bhoore Khan in his own statement dt. 31.12.93 and 1/2.1.94 recorded under Section 108 of the Customs Act, 1962. He has held that deposition made in the statement could not be recorded until and unless the same was disclosed by Shri Bhoore Khan, himself. Therefore, such statements under the said section are correct one and the retraction being an 'after thought' and the same is without any supporting evidence has been held to be liable for rejection.
3. As regards the plea that Shri Bhoore Khan did not give any statement nor were the seized goods recovered from him nor the packets contained the names of the notice and that names were written by the Customs Officers to falsely implicate him, the said pleas were rejected on the ground that Shri Bhoore Khan had himself written his statements on 31.12.93, 1.1.94 and 2.1.94; that he had smuggled the seized foreign marked gold biscuits/gold etc. from Pakistan along with his two associates viz. S/Shri Murad and Hayat and on chasing by BSF, they had thrown the 3 packets containing foreign marked gold and other goods detailed out in the panchnama, and that t/o of his associates had escaped, but he was apprehended. It was also stated by Shri Bhoore Khan that the name of the person who was to receive the goods was written on each packet. Their subsequent plea were hold to be baseless and was rejected by the Commissioner. He has also rejected the plea of Shri Peerana Khan and Shri Achar Rajad as being not voluntary as without any basis as no evidence, documentary or oral had been produced to substantiate this argument. On the other hand, he has noted the fact that the above notices had corroborated the version of Shri Bhoore Khan and had confessed that foreign marked gold seized was meant for different notices and their names were written on each packet and the same is on the record. He has noted that they had not come forward with any evidence to prove that the above facts were not true. It is also noted that the fact that Shri Peerana Khan had paid Rs. 1,00,000/-and a quantity of 130 totals of foreign marked gold biscuits out of the seized gold pertained to him. Shri Gulia had also admitted in his statement dt. 24.6.94 that a quantity of 300 totals of Gold was promised for him by Shri Achar Rajad through Shri Nihal and the seized gold contained his gold also. The Commissioner has noted that the medical certificate produced in response to the summons issued by the Customs authorities was admitted to be false and having been managed by his brother. Therefore, the Commissioner has held that it is established that whatever had been pleaded in defence is totally unfounded and hence the show cause notice was fully substatiated.
4. As regards the defence pertaining to non-appearance/production of the seizing officers and the panch witnesses, it was mentioned that there was 62 officers of BSF and Customs who had associated in the seizure and as such it was not possible to call all of them. The main seizing officer (Shri Vikram Singh) was cross-examined by the advocate on 28.7.95. He has also noted that by office letter dt. 30.11.95, the Counsel was asked to explain as to how cross-examination of Shri Tarsem Singh as a seizing officer was relevant. But there was no communication in response to this letter. He has also noted that the present hearing was fixed on various dates viz. 3.2.95, 8.6.95, 28.7.95 and 4.1.96 but the punach witnesses did not turn up as such, any further dates in this case could have merely delayed the adjudicating proceedings, and hence he proceeded for orders in view of the fact that the assessee had denied the claim of ownership of the seized F.M. Gold and biscuits and other goods. He has also noted that Shri Nihal- Khan had clearly stated in his statement that he had taken advice of his Advocate at Jaipur and only after that he had appeared before the Customs authorities to tender his statement. Therefore, his denial for non-involvement with the case is quite apparent, as he appeared to have acted under the legal advice to get rid of the charges levelled in the show cause notice. He has noted that from the statements of other notices, the charges against him are clearly corroborated. The fact that he was the person who used to play key role in the act of smuggling and in the case of this consignment also and his role was to further pass on the gold to the concerned persons/notices; has been not. Therefore, he has held that Shri Nihal Khan was very much involved in this case and the plea that since he was not detained under COFEPOSA in the case does not mean that the charges levelled against him under the Customs Act are not correct.
5. We have heard Shri R.M. Talia and Shri J.P. Kaushik, the Learned Advocates for the appellants and Shri P.K. Jain, the Learned DR for the Reveune.
6. It was stated that on 29.12.93 during a joint operation conducted by Customs and BSF, three persons were crossing the border of Pakistan from which one person was identified as Shri Bhoore Khan S/o Raje Khan Pak National carrying the said foreign marked gold biscuits and other items. These consignments were to be handed Over to Achar Rajad R/o Karmawali, Jaisalmer. It was stated that the consignment was meant for Gulia R/o Turkon Ki Basti and Achar, Nihal and Pirane all R/o Matar Ki Basti (Jaisalmer) whose names were written on the packets. It is stated that no statements were recorded from Achar, nor he was apprehended.
The summons were issued but he did not responded. However, he has replied to the show cause notice. It was stated that Achar had been discharged by the Magistrate. There are two Achars in the matter and as this Achar was not identified therefore, the Magistrate Court had discharged him from the offence. It was stated that Achar was not son of Samabe. It was only one package, in which Achar's name was found.
However, there was no name of the father, hence, it could not be related to Achar in the present case. He also pointed out from the statement of Shri Bhoore Khan with the reference to the Achar is to Achar Rajad and Shri Bhoore Khan had no personal knowledge. The Learned Counsel also mentioned that the statements to implicate Achar son of Samabe cannot be relied. He also pointed out from the statement of Nihal that Achar son of Samabe had not been identified. A similar argument was taken pertaining to other appellants not being identified and not being involved in the offence. He stated that they had resiled from the statement and therefore, the earlier statements cannot be relied upon and it had no evidential value. It was also argued that the appellants cannot be penalised on the basis of evidence of co-accused as there has to be an independent corroboration and such corroboration was lacking in the case. It was also argued that the plea for cross-examination of the witnesses had been denied. The packet containing the name of the parties had not been produced. It was also submitted that the father of Nihal had sent a telegram seeking retraction. The appellants had been implicated falsely. It was Bhoore Khan who had taken the names of shri Nihal and others and that there is no corroboration on this point.
7. The Learned DR pointed out to the various admission made by all the accused and corroboration pertaining to the involvement of the appellants had been brought out in the show cause notice as well as in the order. He pointed out that the telegram sent by the father of Nihal cannot be considered as retraction and there was no specific retraction. However, the accused sent a retraction after the lapse of considerable time as noted by the Collector and hence such retraction has no meaning. He also pointed out that there was no specific retraction as such, but mere statements and only a general retraction had been made. It was argued that the postman had clearly identified the accused and it delivered the summons to the right persons and that Achar had responded to the summons. There was no doubt about the person having been correctly identified. There was only one retraction and that of Bhoore Khan which was after only one and a half years. He submits that the Hon'ble Supreme Court in the case of Naresh J.Sukhawani v. Union of India as reported in 1996 (86) ELT 258 had clearly laid down that the statement of co-accused can be accepted for implicating persons. He also relied on the judgment rendered by the Supreme Court in the case of C.C v. D. Bhoormull as reproted in 1983 ELT 1546 and that of Indo-China Steam Navigation Co. Ltd. v. Jasjit Singh, Additional Collector of Customs, as reported in 1983 ELT 1392.
He also referred to the Achar having given details of the gold and therefore, the quantum of penalty imposed is quite appropriate and less, taking into consideration the value of gold being more than 1.35 crores.
8. On a careful consideration of the submissions made by both the sides, we have to first see as to whether the goods seized were smuggled goods and carried foreign marking. There is no dispute on this aspect and there is no claim with regard to goods being not foreign marked and not being smuggled goods and not having been intercepted at the border, when the goods were carried by the Bhoore Khan. Therefore, on the basis of the panchnama and mahazar, it is clearly established that all the seized goods were foreign marked smuggled gold.9. The next question that is required to be seen is about the involvement of the various persons and the fact of retraction said to have been made by them.
10. The goods were seized on 29.12.93 during a joint operation conducted by Customs and BSF, three persons were noticed coming from Pakistan at 7 Kms inside the Indian Territory at a point 2 Kms west of Prahari post in Jaisalmer sector, who on seeing the two BSF persons, started running. On chasing, one person was apprehended who disclosed his identity as Bhoore Khan s/o Raje Khan, Pak National, while two succeeded in running away. On search they have found the impugned goods which was recovered from two cotton bags and one HDPE bag. Shri Bhoore Khan could not produce any Bill/document for licit import/possession/trnasportation of the said items. He had in his statement dt. 31.12.93, 1.4.94 and 2.1.94 tendered under Section 108 of the Customs Act, 1962 revealed that consignment was smuggled from Pakistan by one Pak National namely, Sahad Khan & Shadiya S/o Jamal R/o Sahad Ka Tala, Tehsil-Khipru, Distt-Sanghr (Rajashtan). He brought the consigment along with two persons namely, Murad and Hayat. It was meant to be handed over to Achar Rajad R/o Karmawali (Jaisalmer) which was to be delivered to the person whose name were written on the packets by Achar Rajad. He had agreed to receive Rs. 3,000/- which was delivered by the Sahadia. The goods were given to him by Sahadia to be handed over to Achar Rajad R/o Karmawali (Jaisalmer) and told him that Achar Rajad would carry himself the goods to those persons whose names were written on those packets. They set out from the house of Allarakha on the same day at 2.00 PM for Karmawali (India), with the goods, he entered the border of India long before the sunset. After traversing a distance of about 2-2.5 kms. inside the Indian border, he saw two jawans of BSF wearing khaki uniforms coming on a camel and perhaps those jawans had also seen him. He attempted to escape. However, he was followed and apprehended while the other two persons managed to escape.
On being interrogated, he told them that they were smuggling the gold to hand over to the said persons. After examination on 1.1.94, he stated the details pertaining to Sahadia Khan. Sahadia being a famous wealthy person in his area and he was giving him work. The main profession of Sahadia Rajad was smuggling. He stated that when he used to go to Sahadia he heard about Achar of Karmawali (India) and that he is a honest person in his profession and that Achar had fraternity with Sahadia. He also informed the officers that he had heard from Sahadia that Nihal, Gulia and Achar belonging to Matare ki Basti and Turkon Ki Basti used to purchase smuggled gold-silver from Sahadia. In his further statement recorded on 2.1.94, he mentioned about the persons who accompanied him i.e. Murad who was 30 years age. This statement of Bhoore Khan is the only statement which links the gold to be handed over to Achar R/o Karmawali. He had merely stated that he had heard from Sahadia that Nihal, Gulia and Achar belonging to Matare Ki Basti and Turkon Ki Basti used to purchase smuggled gold-silver Sahadia.
There is no direct evidence linking the gold with the other persons named by him namely, Nihal, Gulia and Achar except about the names of those persons being on the packets. The department in order to prove the packets which carried the names of those persons have prepared a panchnama in the presence of two witnesses namely, Sheru and Khabad's son. The panchnama records the details about the manner in which the gold were seized and also shows the foreign markings on the gold.11. The statements of Shri Saroop Singh, Shri Vikaram Singh and Shri Babu Ram CT have been recorded to show about Shri Bhoore Khan being apprehended and about the recovery of the packets from him and about the statements given by him. Panchnma and the statments of these persons clearly establishes about the recovery of gold from Shri Bhoore Khan and therefore, Shri Bhoore Khan's involvement in the smuggling is proved, hence the charges against him is required to be confirmed. The penalty against Shri Bhoore Khan is Rs. 50,000/- only. Looking into the quantum of the value of the goods being more than 1.35 crores, the peanlty imposed on him is not on the higher side and it is just and proper, hence the penalty on Shri Bhoore Khan is confirmed.
12. As regards Shri Nihal, the department officials were able to summon him and his statement had been recorded. Shri Nihal in his detailed statement has given details of his family, details of his brothers and sisters, details of his uncles and all their activities. He has stated that in terms of the summons, he has appeared before the officers, after consulting his Vakil Sahib. He has stated that on 31.12.93, he was in his Dhani in Matare Ki Basti and on that date the officers had carried out the search of his house. He had gone to the village Siyamber to make arrangement of labourers to fill water and when he came back, he came to know about the search. He has given details about his going to Jaipur on 5.1.1994. 6.1.1994 and 7.1.1994. He informed the officers when the search of his house took place, he came to know that the Customs officers had come to interrogate him. Therefore, he went to Jaipur to know as to why Shri Peerana and Achar had taken his name in the statements. Therefore, he met his Vakil, who told him that after applying third degree methods on them, wrong statements had been taken from them and after that he got an affidavit attested by the Public Notary and produced the same in the office. He stated that he came to know through newspaper of 31.12.93 on 1.1.94 about the seizure of gold by BSF. He denied about knowing any Pakistani national. He stated that he came to know about Shri Bhoore Khan only by newspaper. He admitted having known to Shri Achar Rajad, who was a Sarpanch of Harnahu Gram Panchayat for fairly a long time. He denied any association with Achar Rajad. He stated that Achar Rajad is an old Sarpanch and he knew nothing about his profession. He denied the suggestion that Bhoore Khan had heard from Sahadia of Pakistan about his receiving gold or silver from him. He also denied the suggestion that he acted as mediator in between Sahadia and Achar Rajad. He denied any enmity with Achar Rajad.
He did not ask Achar Rajad to bring any gold for him nor he has any connection with the gold seized on 29.12.93. He had no enmity with Achar Rajad, but the name of cousin brother of Achar is also Nihal it is likely that Achar with a view to saving his cousin brother Nihal may have taken his name under the cover of Nihal being written on the packet. He denied the suggestion that Achar Rajad was sending Nihal for smuggling gold. He admitted that Pirana is his brother-in-law and his sister is also married to his brother Vache. There is a dispute in between them over the issue of not sending the married sisters vice versa. A Panchayat had also taken place in this regard in their village and that they are not in speaking terms. He stated that one of the uncles of Pirana live in Pakistan and the name of the uncle is Adla and his cousin brothers are Mobin and Urs and he did not know about his other brothers.
13. In his further statement recorded on 29.01.94, he denied the suggestion about his knowing PEGOUT JEEP as stated by Pirana but admitted that his friend Kamal Bhatia had one such jeep and whenever he required it he took it from him. He denied that no gold was brought through Achar S/o Samana. He admitted that Achar S/o Samana is his uncle and he did not know about him indulging in smuggling. He mentioned that there is only petty domestic dispute in between him and Pirana. He denied having any relatives in Pakistan but they are relatives of Pirana staying there. He admitted that in 1986 a case of smuggling of 15 kg. of heroin was made out against him. However, the Sessions Court had acquitted him, he admitted having been lodged in Central Jail Jaipur for the period of 3 months and also for two months under COFEPOSA. However, he had been acquitted. He admitted that he paid a penalty of Rs. 10,000/- in another case for which he has appealed. He stated that Achar of Matare Ki Basti has a pucca build house. He has a jeep also and he pays income tax and he does not know much about him. He totally denied his involving in the smuggling. As can be seen from the statement of Achar Rajad, that there is no admission about Nihal's involvement in the offence. He has totally denied his involvement. Bhoore Khan has not taken the name of Nihal but has only stated that the goods has to be handed over to Achar Rajad and that he had merely heard from Sahadia taking the names of Nihal, Achar Rajad and Gulia. There is only statement of Achar who stated that the consignment was meant for Gulia R/o Turkon Ki Basti and Achar, Nihal and Pirana all R/o Matar Ki Basti, whose names were written on the packets and that consignment was to receive by him and that he was to deliver the same to Achar, Nihal and Pirana all R/o Matar Ki Basti and the consignment was brought by Murad S/o Sheru R/o Karmawali with other two persons. From this statement of Achar Khan, it is not possible to completely implicate the other persons named by him as the carrier has not taken the name of these persons. The carrier Bhoore Khan has merely stated that the goods were to be delivered to Achar Rajad and he had heard the other persons name from Sahadia. Nihal has also stated that the Achar Rajad cousin's name is also Nihal. It is not possible that Achar Rajad might have taken his cousin's name. This point has not been verified. Pirana and Achar S/o Samabe has not implicated Nihal and there is no admission from them. Inview of this doubt, the case against the Nihal is required to be set aside. In the result the penalty of Rs. 2 lakhs imposed on Nihal is set aside.
14. As regards the case made out against the Achar Khan Rajad, he has clearly admitted that he was to receive these items. The carrier namely Bhoore Khan has clearly identified his name. In view of this clear admission of the carrier as well as the goods to be received by Achar Rajad, there is no doubt that Achar Khan Rajad S/o Shri Jinde Khan being involved in the matter and therefore, the imposition of penalty is justified. It is noticed that penalty of Rs. 20,000/- has been imposed against him while, in fact, against Achar S/o Shri Samabe penalty of Rs. 5 lakhs has been imposed. The persons who were to receive the gold from Bhoore Khan was Achar Khan Rajad of Karmawali as per the statement of Shri Bhoore Khan, therefore, the imposition of penalty of Rs. 20,000/- on Achar Khan Rajad appeares to be surprising and it is probably due to confusion in the mind of Commissioner, as the penalty imposed is less, therefore, the same is confirmed.
15. From the statement of Shri Pirana, it reveals that he is a mere carrier. The departmental investigating officers have not cared to find out, who will be the real recipient. The departmental action has stopped investigation without identifying the real recipient on the Indian side. In this case, the recipient named are mere carriers, this reflects a serious lapse on the part of the department in not tracing and apprehending the smugglers on the Indian side. The seized gold is worth more than Rs. 1.35 crores. This could not have been purchased by Achar or the other named persons namely Nihal and Achar, who are very insignificant and persons occupied in low paid works. There were mere recipients and carriers. In a smuggling of this magnitute involving national economy & security, it is incumbent on the officers to trace the real recipients, who are the real smugglers. The officers have also not cared to enquire from these persons, as to who the real recipients are. It is also seen that the Commissioner has confused himself between the Achar and Achar Khan Rajad. He has imposed penalty of Rs. 20,000/ - on Achar Khan Rajad, while Rs. 5 lakhs on Achar S/o Shri Samabe. Bhoore Khan had indirectly named Achar S/o Shri Samabe, Gulia s/o Shri Mangal and Nihal S/o Shri Baroach. There is no direct implication of these persons in the matter, as regards Achar, Gulia and Nihal. There is also no self-implicatory statements by them. It is only the statement of Achar Khan Rajad, the department is trying to implicate him. There is no confessional statements to show that there is a detail involvement and that they were going to receive the smuggled goods. It is also seen that the department were unable to record the statement of Shri Gulia and Achar S/o Shri Samabe. Therefore, no case has been made out against these persons namely, Achar and Gulia and hence penalty imposed against them is set aside.
16. In so far as the case made out against Shri Pirana is concerned, again his name was not taken by the carrier. The department has implicated him through the statement of Achar Khan Rajad and also self-implicatory statement given by Pirana Khan himself. In his statement, he has stated, as per show cause notice (the original statement had not been produced by the party or the DR despite directions given to them) that he was recipient of one of the gold packets, wherein approximately 130 totals of gold; that he gave Rs. 1 lakh to Nihal S/o Hazi Baroach R/o Matare Ki Basti to get gold by way of smuggling; that the consignment pertained to Achar, Gulia & Pirana Khan (himself); that he talked to his cousin Mobin R/o Pakistan to arrange and send gold for him. Therefore, from his own confessional statement, it is clear that he is involved in smuggling. He was to receive the gold and that he had talked to his cousin to arrange and send gold for him. Thus, there is a clear self-implication in the matter. There is no reconsilement of the statements from him. In that view of the matter, the charges against Pirana Khan is proved. However, we notice that the Commissioner has imposed only Rs. 20,000/- penalty against the real recipient namely Achar Khan Rajad. In that view of the matter, the penalty imposed on Pirana Khan is required to be scaled down to Rs. 1 lakh only. Ordered accordingly.
17. As regards the case pertaining to Murad and Hayat, they are the persons who were supposed to have accompanied Bhoore Khan. They have been imposed Rs. 50,000/- penalty each. These two persons have been identified by Bhoore Khan, therefore, they are clearly involved in the act of smuggling the gold from Pakistan to India. However, we notice that there is no appeal filed by Hayat and Murad and therefore, no order is required to be passed in respect of them pertaining to confirmation of penalty.
18. In the result, the penalty against Achar S/o Samabe, Nihal S/o Baroach and Gulia S/o Mangal is set aside, while the penalty against Pirana Khan is reduced to Rs. 1 lakh, while the penalty against Bhoore Khan and Achar Khan Rajad, of Rs. 50,000/- and 20,000/-respectively is hereby confirmed.