Full Judgment
3. Shri Anil Balani, ld. Counsel for the appellants argued that as far as Samant's case (appellant in Appeal No. C/43/91) is concerned the entire case has been made against the appellant only on the basis of the statements. He further stated that the statements are either exculpatory in nature or they are statements of co-accused. He emphatically argued that no violation of law could be established merely on the basis of such statements. He stated that no doubt there was a visit of Pragna Patel sometime between 10th and 11th of May 1989.
Such visit he would say that could be better established by looking into some of the records at the airport viz. the entry records mantained by the police or by the evidence from airlines which had issued the tickets for the journey. But in this case no such enquiry has been made even if an enquiry has been made it was not brought on record in this case by disclosing it to the appellants and hence it has not substantiated the case of the department. He further argued that it has not been proved that Samant was on duty on 10th and 11th May, 1989.
He also argued that there are many contradictions in the statement especially regarding Mr. Gurjar. He mentioned several instances of contradictions in Pragna Patel's statement. He specifically states that Pragna stated that at one place the contacted person had a beard and at the other place the contacted person was without a beard. However she identified Samant and Nitin Jadhav both as persons having beard. He further stated that Pragna Patel stated that she was told to enter the transit lounge as far as December, 1986. However, the conspiracy established regarding opening of the transit lounge was hatched much after i.e. in May 1989. The statement of Pragna Patel, Samant and Jadhav, the respective versions of entering and leaving the lounge on 10th May were different and contradictory. Pragna's meeting with Samant on the first trip was not substantiated by any record. Again Pragna's statement which does not mention about smuggling on 10th May, 1989 whereas Gurjar's statement mentions this. On 17-5-1989 the appellant Samant and Nitin both were not supposed to be on duty. Since their relievers did not come they were on duty. Therefore, Samant's presence was only a coincidence. The appreciation of evidence by both authorities, it is argued by ld. Counsel, is absolutely wrong. He, therefore, pleads for allowing of the appeal.
4. As far as the appeal of Nitin Jadhav is concerned it is argued that the entire evidence does not justify the findings of the two authorities viz. adjudicating authority as well as the appellate authority that Jadhav was guilty. He also relied on the Magistrate Court's decision. He also argued that in any event both appellants could not be charged for violation under Section 112 (b) of the Act because gold was seized by the Customs authorities before it was handed over to the appellant and hence the appellant could not be charged for conveying or removing or depositing or habouring or keeping or concealing or selling or purchasing the gold. He further stated with emphasis that the gold was never in the possession of the appellants.
They did not carry tapes or harboured at any stage.
5. As against this, ld. D.R. Shri Kumar adopts the reasoning of both the authorities.
6. We are concerned, here about the violations under the Customs Act.
We have gone through the findings recorded by both authorities below.
We as of the view that the reasoning given by both authorities could be absolutely plausible and appears to be correct. The so called contradictions which he has stated it may hold good, if we are to view the things as a criminal court trying a case of criminal offence. We are sitting here as adjudicating and appellate authorities looking into the case from the preponderence of probabilities. We are satisfied that the incident must have occurred. As far as the evidence of the co-accused is concerned the Supreme Court in recent judgments one of which is Surjit Singh Chabbra has upheld the convictions based on the statements of co-accused.
7. However, we have to deal with one interesting argument of the ld.Counsel that is applicability of Section 112 (b) of the Customs Act. He says that by reading of Section 112 (b) of the Act would show that both appellants are not liable under 112 (b) because before taking delivery of the gold from Pragna, the gold was seized by the Customs authorities. From the reading of the provisions of Section 112 (b) he argues that the appellant did not acquire possession of or in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing or handling of any goods. This point, we feel is an interesting one. It is an admitted fact that before Pragna Patel handed over the gold to the appellant the gold was seized by the Customs authorities.
On the facts and in the circumstances stated above, it will be clear, we are of the view that the appellants cannot come within the ambit of Section 112 (b) because appellants had never acquired possession or in any way concerned in any of the activities mentioned in the Section or any measure dealing with any goods which the appellants knew or had reason to believe or liable to confiscation under Section 112. In this case, the goods have already been seized from Pragna. But they could not be charged under attempt to commit act of smuggling or preparation of the act of smuggling. The Customs Act does not provide for penalty for making any attempt or for that matter does not provide for levy of penalty for preparations for making any violations. We are therefore, of the view that the argument of the ld. Counsel regarding Section 112 (b) of the Act is well placed. Hence we set aside the impugned orders and allow the appeals even though statements do implicate the appellants in the performance of certain acts.
6. As stated earlier in the absence of the provisions of law enabling the authorities to punish for attempt or preparation for any violation the appellants cannot be charged for violation of Section 112 (b) of the Customs Act.