Full Judgment
Common notice was issued to these persons and Muthu Srinivasan and Bommuswamy who were the driver and cleaner of the van proposing penalties and confiscation of the silver and the van and of Jal Pari under Section 115 of the Act. The Collector passed an order imposing penalties and ordering confiscation of Jal Pari with an option to redeem it on payment of fine. This appeal is against that confiscation of the vessel.
2. Advocate for the appellant contends that it has not been established by the Collector that Jal Pari was, in fact, used to smuggle the silver into India. He says that none of the persons who was interrogated has claimed it as a vessel which was so used, and that the Collector has merely gone by, what is called substantial evidence. According to him the evidence in this case is insufficient to conclude, by preponderance of probability that this craft was used to carry the silver.
3. The departmental representative contends that the circumstances of the case, such as the recovery of silver, the presence of the man who was to carry out the activity, proximity of the seized silver to this craft as well as the fact that the craft was abandoned justify confiscation of the vessel. He emphasises the fact that the craft was found fitted with Isuzu diesel engine of Japanese manufacturer, whereas it was fitted with Kirloskar engine when it was let by Issaq Kassam, and that it contained empty barrels with markings of United Arab Emirates, and the fact that enquiries by the appellant, even prior to the landing showed that Issaq Kassam, who had not paid rent of the craft for few months and was missing at Okha and the appellant was told that he had gone to United Arab Emirates. All these taken together, according to him, are sufficient to establish that this was the craft that was used to carry the silver.
4. Muthu Srinivasan and Bommuswamy who were in the van, when it was intercepted, had not said that Jal Pari was used to carry the goods.
Muthu Srinivasan says that the van was to carry the goods from "some isolated area" where it was taken under Syed Nawaz's order. Bommuswamy, who was the cleaner, also does not say anything about the spot of the vessel from which the goods were landed. There is, therefore, no direct oral or other evidence involving the craft in smuggling of this silver.
The presence of the factors that the departmental representative emphasises certainly raises a cloud of suspicion. Neither side was able to establish before us the distance between village Savoi Verem and Marcel on the bank of river Tivrem where it was found. The map produced by the advocate is a tourist map and does not show either river Tivrem or Marcel. In our view, the evidence is insufficient to hold that the craft was used to smuggle the goods. It is not even certain that Issaq Kassam was on board the craft or had even gone to Dubai. The fact that he was absconding and said to have gone to Dubai is no more the rumour.
The Japanese engine's presence and the drums having markings of United Arab Emirates found on the craft do not necessarily show that it had been taken abroad. Both the engine and the drums were available in India. In the presence of these circumstances, we do not consider it prudent to uphold the confiscation of the vessel and extend the benefit of doubt.
5. The vessel would then have to be returned to the appellant. This is not possible because it has been sold by the department in November 1997. The sale proceeds less expense would have to be returned to the appellant. The departmental representative contends that from this amount, a sum equal to the duty on the Isuzu engine which has been ordered to be paid by the Collector on the redemption amount be deducted. We are unable to see any significance in this argument.
Diesel engines were not notified under Section 123 of the Act and there is nothing to show that the engine in question had been imported into India without payment of duty. Further, when the goods itself are not available for redemption, it is difficult to see how question of paying duty on the goods arises particularly when the vessel which the department valued at the time of seizure at Rs. 10.00 lacs has been sold by department for Rs. 1.60 lacs about 1/6th of the value.
6. Appeal allowed. Order of confiscation of the vessel set aside. Sale proceeds less expenses of the sale be returned to the appellant.