Judgment:
1. These two Reference Applications under Section 130(1) of the Customs Act are by the two appellants in Appeals CD(BOM)744 and CD(BOM)745/84 respectively and they arise out of the common order bearing No.591-593/86-WRB dated 14th May, 1986. By these two applications, the applicants require the Tribunal to draw a statement of the case and refer to the Honourable High Court of Bombay the following six questions which according to the applicants are questions of law and that they do arise from the order dated 14th May, 1986.
(1) Whether under law the Applicant can be penalised under Section 112 of the Customs Act, 1962 on the basis of his retracted conessions.
(2) Whether under law the Application can be penalised under Section 12 of the Customs Act on the basis of alleged confessions of his alleged accomplice or co-accused.
(3) Whether in the proceeding for penalty under Section 112 of the Customs Act, 1962 can retracted confessions of the Applicant be corroborated by the confessional statement of his alleged accomplice/co-accused or vis-a-vis.
(4) Whether the case against the Applicant on facts and circumstances of the case based entirely on his alleged retracted confessional statement and/or the alleged confessional statements of the alleged accomplice/c -accused and whether there is complete absence of any independent corroboration in any material particular.
(5) Whether the circumstances sought to be relied upon in the adjudication order appealed against were disclosed to the Applicant in the show cause notice or prior to the adjudication order and whether non-disclosure thereof to the Applicant amounts to violation of principles of natural justice.
(6) Whether under the facts and circumstances of the case the findings against the Applicant holding him liable to a penalty under Section 112 of the Customs Act, 1962 is unsupported by evidence and/or unreasonable and/or are perverse in nature and whether that the order of penalty should be set aside.
2. The facts leading to the filing of these Reference Applications stated briefly are :- During the early hours of 28-1-1979, the Customs Intelligence officers at Santa Cruz Airport on account of suspicious movements of some passengers coming from Hongkong detained and questioned two passengers by ame Shri Shamdas Bhagwandas Budhrani and Mancharlal Parmanand Bajaj. The Customs Officer found Shri Shamdas Bhagwandas Budhrani concealed 146 wrist watches and 120 watch straps and Mancharlal Parmanand Bajaj concealed 145 wrist watches and 120 watch scraps all of foreign origin in the cavities of their baggage.
During the course of investigation the Customs seized some more wrist watches of foreign origin from a room of the Hotel Airport Plane occupied by one Shri Moorjani and from the room of Tip Top Hotel occupied by one Shri B.K. Sharma.
3. On 30-1-1979, the Customs authorities received a secret information and in persuance thereof recovered an unaccompanied baggage standing in the name of one "Shri M.D.", which was lying unclaimed at the Air Cargo Complex. On inspection of the baggage they found 381 wrist watches, 70 straps and a pair of children wearing apparel of foreign origin collectively valued at Rs. 97,860/- c.i.f. along with two account slips. On the basis of the further investigation, the residential premises of the applicant Shyam Devji Sakpal was searched under search warrant. The search yielded in the recovery of Rs. 9000/- in Indian currency and two passports belonging to the applicant and his wife. The residential premises of the applicant Shri S.H. Suvarna was also searched which resulted in the recovery of 5 Air India tickets with baggage tags.
4. On 1-2-1979 on secret information the Customs authorities seized another unaccompanied baggage consigned in the name of one N. Sokwani which was found lying as unclaimed at the Air Cargo Complex. On inspection, the baggage was found to contain 561 writ watches, four sarees and one carton of cigarettes all of foreign origin. The investigation revealed that this unaccompanied baggage belonged to the present applicants and one Shri Chandrakant N. Thakkar an accomplice of the applicants. The investigation also revealed that the unaccompanied baggage was to be cleared by Shri B'.K. Sharma with the assistance of the present applicants who are Air India employees posted at the Cargo Section.
5. After the completion of the investigation, show cause notices were issued to the present applicants and the Ors. The Addl. Collector of Customs, who held the inquiry after affording personal hearing to the applicants herein besides ordering confiscation of the seized contraband goods imposed personal penalties of Rs. 10,000/- each on the present applicants.
6. 3eing aggrieved by the order of the Addl. Collector, the applicants herein filed appeals 744 and 745 of 84 before the Tribunal. One Chandrakant N. Thakkar on whom the Addl. Collector had imposed personal penalty of Rs. 50,000/- also preferred an appeal bearing No. 844/87 before the Tribunal.
7. This Bench clubbed all the three appeals and passed the common order dated 14th May, 1986 rejecting all the appeals.
8. During the hearing of these applications, Shri Tushar Shah the applicants' learned advocate contended that the Tribunal based its findings on the retracted confessions of the applicants and their accomplices. The Tribunal committed an error of law in relying on the retracted confessions of the applicants and the retracted confessions of the accomplices. Shri Tushar Shah urged under law the retracted confessions require independent corroboration. As such corroboration was not forthcoming, in the evidence, the retracted confessions of the accomplices cannot be considered as independent corroboration and therefore the findings of the Tribunal are vitiated and as such the questions of law set out at Serial No. 1 to 4 would arise out of the order of the Tribunal.
9. It was the further contention of Shri Tushar Shah that the Adjudicating authority had relied on certain material evidence which were not disclosed to the applicants and that a grievance had been made before the Tribunal that there was violation of principles of natural justice. But then the Tribunal to brush aside such a contention had observed "that all the broad classification and charges and relevant supporting evidence had been intimated to them to facilitate their, defence." Having regard to the said finding of the Tribunal, the question at Serial No. 5 arises from the order of the Tribunal which requires reference.
10. Shri Tushar Shah urged that the Tribunal ought to have set aside the penalty imposed on the applicants in as much as there was no evidence against the applicants and the findings are frivolous in nature and there-fore the question at Serial No. 6 would arise out of the order of the Tribunal and the same is required to be referred to the Hon'ble High Court.
11. Shri Pattekar appearing for the Respondent Collector opposed these applications. He contended that the questions set out by the applicants are no more questions of law. They are settled questions of law, settled by the decisions of the Supreme Court and High Courts and as such referring those questions again to the High Court would not arise.
Shri Pattekar submitted that the contention regarding the admissibility of the confession of the applicants as well as the accomplices have been considered by the Tribunal and that the findings of the Tribunal do not suffer from any infirmity. It was also urged by Shri Pattekar that no contention regarding the denial of principles of natural justice was taken up before the Tribunal and therefore the question at Serial No. 5 would not arise from the Tribunal's order. Lastly, Shri Pattekar submitted the question at Serial No. 6 besides being vague is in the nature of appreciation of evidence the same cannot be permitted to be raised in a Reference Application. He therefore prayed that the applications may be rejected.
12. We have considered the submissions made on both sides. Under Section 130(1) of the Customs Act, the Tribunal is required to refer only those questions of law which would arise from the order the notice of which was served on the applicant. The Tribunal is not conferred with the power to refer any question whether of facts or law or any question of law. It could only refer questions of law that would arise from its order. It is settled law that no obligation is cast on the Tribunal to refer settled questions of law. Shri Pattekar is right in contending that the questions at Serial Nos. 1 to 4 are no more disputed questions of law. They are settled questions of law. At best, they are propositions of law and not disputed questions of law.
13. Shri Tushar Shah did concede that the questions as to the admissibility of confessional statement, the effect of retraction of confession, the admissibility of the confession of co-accused/accomplices, the evidential value of the confessional statements of the accused, co-accused or accomplices are all settled by the various decisions of the Supreme Court. In the applications it was not alleged nor Shri Tushar Shah contended during the arguments that the Tribunal deviated from the principles laid down by the Supreme Court in accepting the confessional statements of the applicants and the statements of accomplices. Therefore, strictly speaking the questions at Serial Nos. 1 to 4 ceases to be questions of law as they were settled by the authoritative pronouncements of the Supreme Court.
14. The perusal of the order dated 14th -May, 1986 out of which these .eference applications arise shows that before the Tribunal it was argued by the present applicants' learned advocate that the findings of the Addl. Collector were based on surmises and conjectures. There was no creditable evidence. It was also contended that the appellants herein were forced to make certain confessional statements when they were in custody of the Customs authorities and that they lost no time in disowning such statements when they were out of judicial custody. It was further urged that the Addl. Collector had committed an error in placing reliance on the statements of S/Shri Sharma, Moorjani and Punjabi. On behalf of another appellant Shri C.N. Thakkar it was contended before the Tribunal that the Addl. Collector of Customs had completely violated the norms in holding Shri Thakkar as guilty. From paragraph 16 of the Tribunal's order it is seen that the counsels appearing for the present applicants and another relied on a number of judicial pronouncements in support of the decision that the confessional statement of an accused which is retracted by him before the commencement of the trial should not form the basis of conviction in the absence of corroboration in material particulars. It was further urged that the statement of an accomplice was of weak type of circumstance which called for corroboration. On behalf of the applicants, the following decisions were also relied upon : (3) Haricharan Mural and Jogia Mahan v. State of Bihar AIR 1964 S.C. 1184Sarwan Singh v. State of Punjab, (5) Pradhan Singh v. Collector of Customs, Chandigarh, 1983 FLT 650 (CEGAT) (6) Collector of Central Excise & Land Customs v. Sanvarmal Purohit and Anr., 1979 AIR (3 413) SC "Before embarking on the appreciation of evidence in its totality, we would like to steer clear of the legal position. Of course judicial precedents have a binding nature of their own particularly when they come from the Apex Court, but all the same they cannot be invoked blindly because it is often observed that there is some slight difference in the facts and back drop of the two given cases which, when appraised critically, may call for an entirely different view and that is how that each and every case requires adjudication in the peculiarity of its own sum total." 14B. Thereafter, the Tribunal considered the various decisions relied on by the applicants and also referred to the decisions cited by the respondent. The Tribunal referred to the following decisions of the Supreme Court :Collector of Customs, Madras v. D. Bheemal, AIR Thereafter, the Tribunal considered the voluntary nature of the confessional statements of the applicants. The Tribunal also considered the effect of retractions and further held now the retractions does not retract voluntariness of the earlier statements.
14C. From the order of the Tribunal, it is difficult to accept Shri Shah's contention that questions at Serial No. 1 to 4 would arise.
While deciding the admissibility of the confessional statements as well as the effect of retraction, the law laid down by the highest court of the country namely the Supreme Court was borne in mind and in the circumstances . it cannot even be contended that the Tribunal had failed to apply the law laid down by the Supreme Court in the matter of acceptance of confessional statement or as to the effect of retraction, admissibility of retracted statement of the accomplices in the adjudication proceedings. We, therefore, reject the request for reference of questions at Serial No. 1 to 4. It is settled law that the retraction will not have the effect of wiping out the earlier confessional statement. It is also a settled law that under the Evidence Act confession made to a police officer is not admissible in evidence, but then, under the Customs Act, the confession made to a Customs officer is admissible in evidence. Under both the laws before accepting the statements whether confessional or otherwise of any witness, the court or the quasi-judicial authority requires to be satisfied as to the voluntariness and also as to its truthfulness.
Viewed from any angle there is no scope to refer the questions at Serial Nos. 1 to 4.
15. As regards Question at Serial No. 5 Shri Tushar Shah was not able to pinpoint the evidences made use of by the Addl. Collector behind the back of the applicants. He was not able to state which of the documents were not referred to in the show cause notice which were made use of by the Addl. Collector. He was also not able to point out as to the non-supply of the copies of documents or copies of the statements of the witnesses which were made use of by the Addl. Collector. Without laying a foundation, the applicants have complained as to the denial of principles of natural justice.
Whether there has been a denial of the principles of natural justice is not a pure question of law and it is more a question of fact. It is only on the basis of the evidence placed before the authority one could come to a conclusion as to whether there was denial of principles of natural justice or not. As a matter of fact, during the hearing of the appeals no specific plea regarding the denial of principles of natural justice was taken up. When that being the case, it cannot be said that point at Serial No. 5 arises out of the order of the Tribunal. On this ground also that question cannot be referred to the High Court.
16. The question at Serial No. 6 is not specific. It is general in nature. It requires consideration of all the materials placed before the Tribunal. In the guise of a Reference Application, the applicants cannot seek review of the judgment earlier passed or request this Bench to sit in judgment over the order earlier passed. There is also no basis for the contention that there was no evidence to impose penalty on the applicants. For all the reasons stated above, we hold this question also cannot be referred to the High Court.
17. In the result and for the reasons set out in the preceding paragraphs, we reject these applications.