1. Shri Madan Gopal has filed an application dated 17-12-1981 under old Section 131 of the Customs Act to the Government of India against the Board's Order No. 123 of 1981 (F.No. 1/144/70-CXV(A)/AU(A) dated 13-3-1981 confirming the order No. Cust/5/70(ll/69) dated 16-3-1970 of the Collector of Central Excise & Customs, Nagpur. This application has been transferred to the Tribunal under Section 131B ibid and is to be treated as an appeal before us. The appeal is against the Collector's order as confirmed by the Board under which he confiscated ten bars of gold recovered from the appellant at Ratlam Station by the Officers of Customs and Central Excise and levy of a penalty of Rs. 2,000/- on the appellant.
2. Appearing on behalf of the appellant, Shri Mittal has contested the recovery of gold from the appellant. He has advanced several reasons in support of his contentions. These are that the appellant did not sign the panchnama, that the panchnama was prepared by the two persons who have always acted as stock witnesses of the Customs Officers and that the evidence of the witnesses was contradictory in material particulars. Shri Mittal, has further relied on the judgment of the second Additional District and Sessions Judge, Indore who acquitted the appellant on a charge under Section 85 (ii) of the Gold (Control) Act.
3. Shri S. Senthivel has opposed the submissions of the appellant. He has drawn our attention to the Board's order which has met the aforesaid arguments of the appellant. These are that the recovery was made1 at a crowded place and there was no enemity towards the appellant and therefore no reason for the Customs Officers to implicate an innocent person like him. Besides the panchnama had to be witnessed by persons who were available locally to give evidence later and not by passengers who would not be available later on for evidence. In addition, Shri Senthivel has drawn our attention to the evidence of Abdul Waheed. Rebutting the reliance by the appellant on his acquittal by the second Addl. Sessions Judge, Indore, Shri Senthivel has argued that criminal proceedings are separate from adjudication proceedings.
He has relied in this behalf on the Bombay High Court's decision in petition No. 1004/82 in the case of Manekchand Pakhraj Jain v.Collector of Customs. He has also relied on Supreme Court's decision in the case of Nathoo Singh v. State of Madhya Pradesh AIR 1973 Supreme Court 2783 in which the Supreme Court held that the deposition of an officer in uniform can be accepted, as an evidence unless there is a hostility on his part against the accused. Shri Senthivel submitted that this judgment was based in respect of a criminal case where the Evidence Act was applicable while in the present case the Evidence Act did not apply and hence the Supreme Court's decision would apply with greater force to the present appeal. He further relied on the Supreme Court's decision in the case of Hazarilal v. Delhi Administration AIR 1980 S.C. 873 in which the Supreme Court reiterated the same principle.
Therefore, Shri Senthivel urged that the appeal should be dismissed.
4. We have examined the submissions made on both the sides. The main plea taken up by the appellant is to disown recovery of gold from him.
Though he has made efforts in that direction, they are neither successful nor complete. The recovery of gold has been made from his person. Prior to this, the person was searched by the Customs sepoy who felt something hard tied to his waist. He was, therefore asked to detrain and his person was searched in presence of panch witnesses.
Though an aspersion has been cast on the veracity of the panch witnesses, there is no reason for such aspersion. Indeed, as argued by the learned S.D.R., there was no reason for the Customs Officer to pick up on the appellant from all the passengers who were travelling by that train. No such hostility has been alleged against the Customs Officer.
Therefore, the plea of disowning the recovery is not acceptable. The acquittal in the criminal case does not save the appellant from the departmental penalty. Shri Senthivel has correctly relied on the Bombay High Court judgment in this behalf. Therefore, we find no validity in the appellant's arguments. Accordingly, we confirm the order of the Collector and the Board and reject the appeal.