Full Judgment
2. Brief facts of the case are that on 25-4-1991, the officers of the Customs Department intercepted a truck bearing No. RNQ 5727, which was driven by Chagan Dhan and Tane Rao Singh, alias Tane Singh, the appellant, was also sitting in that truck. On the search of the truck, 1,000 foreign marked gold biscuits weighing 116.640 kg. valued at Rs. 4,22,50,000/- were recovered. Shri Tane Rao Singh, the appellant, in his statement under Section 108 of the Customs Act, admitted that the foreign marked gold biscuits were smuggled from Pakistan to India by one Pak National, called Alia and this consignment was meant for Allar Khan, the appellant. He also stated that a week prior to the recovery, Alia asked Tane Rao Singh to assist him in transporting the one consignment of the gold upto the residence of Allar Khan in the village Bhagu Ka Gaon and also afforded a remuneration of Rs. 5,000/- for the purpose. He submits that at the night of 24-4-1991, Alia and Allar Khan came to his place along with gold biscuits contained in bags and these bags were concealed beneath stone gravel loaded in the truck.
Thereafter, Allar Khan and Tane Rao Singh gave direction to him to take the truck to Allar Khan's village. While, he was taking the truck to Allar Khan's village, the truck was intercepted and the contraband gold was recovered and taken into possession. The driver of the truck, Chagan Dhan, in his statement under Section 108 of the Customs Act, 1962, submitted that the truck was owned by one Shri Gobind Lal.
3. Shri Allar Khan, the appellant, in his statement under Section 108 of the Customs Act, 1962, stated that in the transaction of smuggled foreign marked gold biscuits, he acted in accordance with the directions of Shri Goverdhan Singh and during investigation, Shri Goverdhan Singh, in his statement, denied his connection with the smuggled gold and he had taken the plea that Allar Khan was naming him due to personal enmity. Show cause notice was issued to the appellants and the adjudication order was passed.
4. Shri L.P. Asthana, ld. Advocate, appearing on behalf of Allar Khan, the appellant, submitted that no statement from Allar Khan was recorded. He submits that the appellant was made to sign some blank sheets while he was in jail. He, further submits that the appellant, Allar Khan, was not present at the time of recovery and he is not concerned with the smuggling of the gold. He submits that the residential premises of the appellant was searched in his absence and no opportunity of cross-examination to the Panch Witnesses was granted to him. He submits that the only evidence against the appellant, relied upon by the adjudicating authority, is his statement; the statement of co-noticee and recovery of some pages of 'DAWN' newspaper from his residence. He submits that the appellant made a request to the adjudicating authority for comparison of his signatures in the statement with the signatures admitted, but this request was not acceded to by the adjudicating authority. He, further, submitted that even if it is presumed that the appellant made a statement, then in his statement, he named one Goverdhan Singh and no action was taken by the Customs authorities against Shri Goverdhan Singh. He, therefore, prays that the appeal filed by the appellant, Allar Khan be allowed.
5. Shri V.S. Poonia, ld. Advocate, appearing on behalf of Tane Rao Singh, submits that there is no evidence on record to show the involvement of Shri Gobind Lal. He submits that Gobind Lal was the owner of the truck. He submits that the person, whose statement was recorded under Section 108 of the Customs Act, 1962, nowhere states that Gobind Lal was connected with the smuggling of the gold.6. In respect of Tane Rao Singh, he submits that the appellant signed the statement as prepared by the Customs authorities. Therefore, such statements have no sanctity in the eyes of law. He submits that the appellant never admitted his connection with the seized gold. He, therefore, prays that the appeal be allowed.
7. Ld. JDR, appearing on behalf of the revenue, submits that the role of the appellant has been clearly brought in the adjudication order. He submits that the gold was handed over to Tane Rao Singh by Allar Khan and Alia for transporting the same to the residence of Allar Khan. He submits that Tane Rao Singh, in his statement, admitted his role in transporting the smuggled gold as well as the role of Shri Allar Khan.
He, further, submits that the truck was owned by Gobind Lal. He, therefore, prays that the appeal be dismissed.
9. In this case, the foreign marked gold biscuits weighing 116.640 kg.
valued at Rs. 4,22,50,000/- were recovered from the truck and Shri Tane Rao Singh, was sitting in the truck along with the driver. Tane Rao Singh, in his statement, recorded under Section 108 of the Customs Act, 1962 admitted his role in carrying the smuggled gold to the residence of Allar Khan on the asking of Alia and Allar Khan for the remuneration of Rs. 5,000/-. In his statement, he also submitted that the gold belonged to Allar Khan. Allar Khan, the appellant, in his statement under Section 108 of the Customs Act, 1962 also admitted that his role in smuggling and transporting the foreign marked gold. The contention of Allar Khan is that he was not present at the spot at the time of recovery. We find that the appellants, after giving their statements, under Section 108 of the Customs Act, 1962, never retracted from the statement before filing the replies to the SCN. The Hon'ble Supreme Court in the case of Naresh J. Sukhawani v. Union of India reported in 1996 (83) E.L.T. 258 held that the statement made before the Customs officials, is not a statement recorded under Section 161of Cr.P.C.Therefore, it is a material piece of evidence collected by the Customs officials under Section 108 of the Customs Act, 1962 and it can be used as substantive evidence connecting the petitioners with the contravention of Customs Act. In the case of Surjeet Singh Chhabra v.Union of India and Ors. reported in 1996 (17) RLT 331, the Hon'ble Supreme Court held that in view of the confessional statement, the non-tendering of witnesses for cross-examination is not violation of principles of natural justice.
10. In the present case, Tane Rao Singh, who was apprehended at the time of recovery of the gold, in his statement, implicated himself as well as Allar Khan in the smuggling of the gold in question. Allar Khan also admitted his role in the smuggling of the gold, in question, in his statement under Section 108 of Customs Act. He never made any complaint to any authority that his signature was taken on plain paper.
This plea was taken only at the time of filing reply to the Show Cause Notice. In view of the above decisions of the Hon'ble Supreme Court, we find no force in the appeals filed by Allar Khan and Tane Rao Singh.
However, taking into facts and circumstances of the case, we find that the penalty of Rs. 1,50,000/- each will meet the ends of justice.
Therefore, the penalty imposed on Tane Rao Singh and Allar Khan is reduced to Rs. 1,50,000/- each.
11. In respect of appeal, filed by Gobind Lal, we find that Gobind Lal is the co-owner of the truck and he was not present at the time of recovery of the gold. Further, from the statements recorded under Section 108 of the Customs Act, 1962 of the co-noticees, we find there was no material on record to show that Gobind Lal was connected with the smuggling of the gold, in question in any manner. His name was only disclosed by Chagan Dhan, driver of the truck as the truck was owned by him in partnership with Tane Rao Singh and there is no evidence on record to show that Gobind Lal was involved in the smuggling of the gold, in question. Hence the penalty of Rs. 50,000/- imposed upon Gobind Lal is not sustainable and is, therefore, set aside and the appeal filed by Gobind Lal is allowed and appeals filed by Allar Khan and Tane Rao Singh are disposed of as indicated above.