1. This is the party's appeal against the impugned Order No.DRI/BZU/109/18/91, S/14-5-64/91, dated 18-2-1993 praying for quashing and setting aside the same and for such other reliefs deemed fit. 1.
The facts of the case are, that on specific information DRI officers, Bombay Zonal Unit, kept surveillance and intercepted the appellant on 26-8-1991 at about 2.30 p.m. opposite the building Kamdar Court at Principal Raosaheb N.M. Kale Marg, Dadar, Bombay 400028, and on his personal search recovered a heavy packet from his left hand side front pocket of his trouser worn by him. On scratching the surface of the packet it was found to contain yellow metal pieces believed to be gold.He was taken to the office, and after securing panchas, it was opened in their presence 25 foreign marked gold biscuits, each weighing 10 tolas, valued Rs. 12,53,975/- found in the packet was seized on the reasonable belief that they were smuggled into India; and hence liable for confiscation, under the panchanama. Statement under Section 108 of Customs Act, 1962 of the Appellant was recorded. Four representative samples were taken and forwarded to Government of India Mint, Bombay for testing the purity of gold. The Mint certified the weight to be 116.50 gms. per bar and the purity as 999.2, 999.3, 999.2, 999.3 respectively of each bar. Show cause notice was issued on 9-1-1992 to the Appellant, Suresh, Arif and Raju calling upon them to show cause as to why seized gold should not be confiscated under Section 111(d) of the Customs Act, 1962 and personal penalty should not be imposed under Section 112 of the Customs Act, 1962. Personal hearing was held.Investigation officer Ahmedabad, SIO and Lal J.B. were cross-examined.
Written submissions were filed. Arguments were heard. Sri Z.H. Malang, Advocate represented the Appellant. Impugned order was passed ordering confiscation of the seized gold, and imposing penalty of Rs. 10,000/- on the Appellant. Other three persons are absconding. Hence this appeal.
2. In support of the appeal, Sri Z.H. Malang the learned Counsel for the Appellant has argued that panchanama is not prepared on the spot of interception. Panchanama is doubtful. The Appellant has retracted his statement recorded at the earlier opportunity. AIR 1953 SC 213 is relied upon. Reasonable explanation is offered by the Appellant.
Impugned order has to be set aside. The learned DR Sri K.L. Ramteke has argued that the statement of the Appellant gives the full details about the possession of gold of foreign origin, without any legal document.
Para 19 and 20 of the impugned order are pointed out, and submitted Section 112(b) of Customs Act, 1962 is applicable, and personal penalty imposed is justified.
3. Point for consideration is whether the Appellant has made out suffi-cient and satisfactory grounds to set aside or modify the impugned order? Our finding thereon is in the affirmative.
4. Perused the impugned order, appeal memorandum, panchanama dated 26-8-1991, remand application dated 27-8-1991, and the representation of the Appellant to CMM IIIrd Court Esplanade, Bombay dated 27-8-1991 and the reply by Intelligence officer, DRI, Bombay, show cause notice dated 9-1-1991 and reply of the Appellant dated 24-1-1992, and the Written submission of the Counsel for Appellant dated 4-2-1992 before the Respondent and Cross- examination of H.J.B. Lal, and also Customs Act, 1962 provisions under Section 11, 111(d), 112(b), and Section 134 read with 67 of FERA and Section 3 and 4 of Import and Export (Control) Act, 1947 and also AIR 1953 SC P213 -1953 CrLJ 1633 (SC) - Retracted confession - conviction on - legality - Held that the correction based solely on the retracted confession was opposed to law and could not be allowed to stand.
5. Panchanama was drawn in the DRI office between 3.30 p.m. to 4.30 p.m. on 26-8-1991 in the presence of panchas, DRI officers B.D.Ahmedabadi, Sr. Int. officer, G.M. Shaikh, Int. officer, and R.A. Bane, LDC and the Appellant. Admittedly no panchanama was drawn in the place of interception as it was a public place, crowd gathered there, and it was not found suitable to draw the panchanama. DRI officers narrated the whole incident and Appellant confirmed it. DRI officers opened the packet recovered from the front left pant packet of the Appellant in the spot and showed. Marks found thereon is narrated. DRI officers questioned the Appellant about the documents or proof to show legal possession to the Appellant, who replied in the negative. Samples from 4 variety of 15 gold biscuits were drawn for testing. Remaining 21 biscuits were separately sealed and seized. Panchas are from Thane and Bellard Estate, Bombay. Cross Examination of Mr. H.J. Lal discloses "That Mr. Ahmedabadi, Mr. Shaikh and himself reached the spot at 2.00 p.m. and informer, pointed out the Appellant, who was with them. He also was walking on Prof. N.M. Raosaheb Kale Marg, Opposite Kamdar building. Only officers were present then. There are no famous land mark, near the spot. Nobody was asked to act as Panch there. Normally, he gets the panch, a typed instead of writing by hand. Appellant was arrested after recording his statement, after panchanama which was over by 4.30 p.m. Suggestions that p was a passer by and he was innocent is denied." Mr. Ahmedabadi in his cross examination has deposited "statement was started at 4.00 a.m. and heading was written by Shaikh, when the statement of Appellant was recorded, nobody else was present.
He wrote by his hand for 2 hours. Only one statement was recorded. He is concerned with the Interception of the Appellant, goods and recording the statement of Appellant. He has denied the suggestions that Appellant is falsely implicated and nothing was recovered from him and he is not at all concerned and his statement is not true and voluntary, and it was obtained by coercion, threat and false promise.
He pleads loss of memory regarding the retraction by Appellant before the Magistrate.
6. From the above, and para 10 and 11 of the impugned order it is crystal clear that the seized goods in this case is a contraband, liable to be confiscated to Government for want of proof and legal possession or title. There is no dispute about it. The Appellant has disowned it. There are no other claimants. To this extent impugned order is upheld. The question of imposition of personal penalty on the Appellant as the possessor of the same without valid explanation requires confirmation. From the Cross-examination of customs officers, as argued by the learned Counsel for the Appellant, it is as clear as day light that the interception of the Appellant was a matter that was witnessed by the independent persons at about 2.30 p.m. in a busy area and the customs officers have chosen to ignore it. No reason is assigned as to why panchas were not secured at that time, when the Appellant was searched on the spot, and heavy packet was recovered from this person, and after opening it was scratched, and found to be yellow metal. On the other hand it is the theory of the department that since interception was in a crowded area and it was not feasible to draw panchanama. Even if it is accepted, it shows that interception of the appellant with gold of foreign origin could have been supported by the independent evidence, which is sidelined. As argued by the learned Counsel for the Appellant, the Section 108 statement of the Appellant, which is retracted before the jurisdictional magistrate,, when produced, is a weak evidence to be solely relied upon to impose the personal penalty under Section 112(b) of the Customs Act, 1962.
Panchanama drawn in the office, after collecting the Panchas of the choice of the officers can not be an independent corroboration to the statement of the Appellant, as it only shows the seizure of contraband gold from the Appellant, and not the possession and recovery at the time of interception. The reasoning in para 12 of the impugned order in this regarding is not proper and correct. The impugned order is solely based on the admission of the Appellant in the statement. As per the cross-examination of the customs officer Sri Ahmedabadi the statement recording was started at 4.00 a.m. It is also the grievance of the Appellant that his statement was recorded in the odd hours of night. It has also come in the cross-examination of the above witness, except the Appellant, nobody else was present, when the statement was recorded.
The material placed in this case by the department shows that the Appellant him-self has written by his hand, and it took 2 hours to complete. These circumstances support the contention of the Appellant that it is not voluntary. Thereby it becomes a weak evidence to be solely relied upon. The probability in the case lies more in favour of the Appellant for the above said reasons. Apart from that the department has not shown by in (sic) material that the Appellant was badly in need of money, at the time and before he was intercepted. The Appellant has given complete and clear picture about his earnings, family background, and payment of income-tax. It is not tried to be rebutted by the department. In the absence of it, imposition of penalty on the Appellant is not sound. The line of thinking in the impugned order is a presumptive one, based on the statement of Appellant only.
It cannot be upheld. The point raised is answered in the affirmative.
We pass the following order.
For the reasons indicated above the impugned order is set aside regarding the imposition of personal penalty on the Appellant by allowing the appeal with the consequential relief.