Harishankar Raikwad Vs. Commissioner of Customs, Lucknow - Court Judgment

Excerpt:

.....authority. he submits that no recovery was made from the appellants and the whole of the case is foisted on them. however, on perusal of the facts on record, i am not able to agree with the same. it is very clearly mentioned in the panchnama, show cause notice and in the or- der-in-original that both the appellants were intercepted from a roadways bus and the foreign marked gold was recovered from the rectum of each of the appellants packed in the condoms. both the appellants gave voluntary statements before the customs authorities confirming the fact of recovery of the gold in their statements of the even date, these statements are not re tracted even when they were produced before the magistrate or any time thereafter. the retraction is made only after a period of 14 months while fil ing the reply to the show cause notice. in this view of the matter, therefore, i find no merit in the submissions that no recovery of the contraband gold was made from the appellants. the penalty of rs. 20,000/- on the appellants is also not considered very high or disproportionate to the value of the gold recovered from them. the appeals have, therefore, no merits and the same are.....

Judgment:

1. The brief facts of the case are that on 19-9-97, the Customs Officers of Nautanwa intercepted two person from a Roadways bus at Moila. On enquiry they disclosed their identity as S/Shri Harishankar Raikwad and Ravi Kumar Verma both resident of Jhansi. Both the persons were brought to the Customs Office, Nautanwa and they defecated from their rectums 7 gold pieces each of foreign origin weighing 1633 grams.

The gold was totally valued at Rs. 7,28,000/- and was of 24 carat purity. Shri Ravi Kumar Verma in his statement dated 19-7-97 stated that he had brought the said gold from Nepal and same was handed over to one Shri Kallu Kamaria alias Kailash Babu Agarwal who had given the dollars. He stated that he was involved in the smuggling of gold for the commission of Rs. 1,000/-. In a separate statement recorded from Shri Harishankar Raikwad, he confirmed the disclosures made by Shri Ravi Kumar Verma. Accordingly, the proceedings were initi-tated and all the three named persons were issued the show cause notice dated 23-2-98. In reply to the show cause notice, Shri R.S. Mishra, Id.

Consultant in his reply on behalf of S/Shri Harishankar Raikwad and Ravi Kumar Verma denied the charges levelled against both the appellants. He submitted that these persons were brought to the Customs House and the statement was obtained under duress and coercion. He submitted that his clients had no connection with the seized foreign marked gold. He also submitted that when these persons were presented before the Magistrate they could not disclose anything before him due to their young age. Shri V.K. Verma, Id. Advocate in the defense reply for Shri Kailash Babu Agarwal denied the allegations levelled against his client stating that there was no evidence on record that his client was to receive the aforesaid contraband gold. He submitted that Shri Kailash Babu Agarwal had no concern with the seized gold and he is also not known as Kalu Kamariya. The same contentions were reiterated before the adjudicating authority when the Counsel appeared for personal hearing before him. The Deputy Commissioner of Customs, Lucknow, vide his order dated 16-2-99 ordered for absolute confiscation of the seized gold under Section 111(d) of the Customs Act, 1962. He further imposed a penalty of Rs. 40,000/- each on S/Shri Harishankar Raikwad and Ravi Kumar Verma and a penalty of Rs. 50,000/- on Shri Kailash Babu Agarwal under Section 112 of the Customs Act, 1962.

2. All the above said persons filed appeals and the Commissioner (Appeals), Allahabad, vide his order dated 27-1-2001 reduced the penalty to Rs. 20,000/- each imposed on S/Shri Harishankar Raikwad and Ravi Kumar Verma. He however set aside the penalty imposed on Shri Kailash Babu Agarwal.

3. S/Shri Harishankar Raikwad and Ravi Kumar Verma have filed appeals against the order dated 27-1-2001 of the Commissioner of Customs (Appeals), Allahabad.

4. I have heard Shri S.C. Kamra, Id. Advocate for the appellants and Shri H.C. Verma, id. JDR for the respondents. The Id. Counsel for the appel lants has reiterated the same contention as raised before the original author ity as well as the appellate authority. He submits that no recovery was made from the appellants and the whole of the case is foisted on them. However, on perusal of the facts on record, I am not able to agree with the same. It is very clearly mentioned in the panchnama, show cause notice and in the or- der-in-original that both the appellants were intercepted from a roadways bus and the foreign marked gold was recovered from the rectum of each of the appellants packed in the condoms. Both the appellants gave voluntary statements before the Customs Authorities confirming the fact of recovery of the gold in their statements of the even date, These statements are not re tracted even when they were produced before the Magistrate or any time thereafter. The retraction is made only after a period of 14 months while fil ing the reply to the show cause notice. In this view of the matter, therefore, I find no merit in the submissions that no recovery of the contraband gold was made from the appellants. The penalty of Rs. 20,000/- on the appellants is also not considered very high or disproportionate to the value of the gold recovered from them. The appeals have, therefore, no merits and the same are accordingly dismissed.