Judgment:
1. The above appeals arise out of a common order of the Collector of Customs, Cochin, dated 7-4-1987 and are, therefore taken up together and disposed of by a single order.
2. The appellant in Customs Appeal No. 563/87, Shri Rajan Menon, has filed an application referred to above for waiver of prior deposit of penalty of Rs. 25,000/- imposed on him under the impugned order. Since we propose to dispose of the appeal itself today with the consent of the learned Consultant for the appellant and since we find that appellant Rajan Menon was a COFEPOSA detenu for nearly one year, we grant waiver of prior deposit of penalty pending disposal of appeal today.
3. The above appeals are directed against the order of the Collector of Customs, Cochin, dated 7-4-1987 imposing a penalty of Rs. 1,00,0007-each on appellants Shri Haresh Chimanlal Vora and Jayant K.Sanghanee and Rs. 25,000/- on the other appellant Shri Rajan Menon, under Section 112 of the Customs Act, 1962, the 'Act' for short.
4. On 13-1-1986, on the basis of prior information the Customs authorities examined the packages covered by Bill of Entry No. 124, dated 9-1-1986 filed by Custom House Agent M/s. G.H. Bhai & Co.
Appellant Rajan Menon is the clearing clerk of the said Custom House Agent. The packages on examination were found to contain 3,92,000 Nos.
of electronic watch battery button cells and 448 Nos. of Citizen Quartz Wrist Watches of foreign origin concealed in the two consignments of old and damaged Video game machines imported. Since the goods were not claimed by any person and since the goods were of foreign origin, the authorities effected seizure of the same under a mahazar as per law.
The total value of the goods was found to be Rs. 40,35,000 c.i.f. and Rs. 89,50,000/- market value. The examination of appellant Rajan Menon revealed that the goods in question had been imported by appellant Jayant K. .Sanghanee and another person who were staying in Casino Hotel at dochin. Appellant Rajan Menon gave a statement before the authorities on 13-1-1986 that he knew about the concealment of smuggled goods in the Video game machines and that he had rendered assistance in respect of clearance of similar imported consignments in the past and also explained the circumstances under which he met appellant Jayant Sanghanee and one Kiran Sanghanee in the Casino Hotel at Cochin. The authorities examined appellant Jayant Sanghanee, who gave a statement on 13-1-1986 as well as on 14-1-1986, wherein he gave details. about his association with appellant Haresh Chimanlal Vora and how this illegal import of contraband goods by concealing in the Video game machines was planned and executed in regard to the goods in question as well as similar goods in the past. The authorities also recorded a statement from Kiran Sanghanee who also gave a statement detailing the circum- stances under which such illegal activity was carried on with his help by the other appellants. It is in these circumstances, after further investigation, the authorities instituted proceedings which eventually resulted in the present impugned order.
5. Shri Raichandani, the learned Counsel for appellant Haresh Chimanlal Vora, submitted that no Show Cuase Notice was served on his client and therefore the impugned order is not legally sustainable. It was further contended that the first statement recorded from appellant Jayant Sanghanee on 13-1-1986 does not implicate his client and the belated implication by Jayant Sanghanee of his client in the second statement on 14-1-1986 is not acceptable in the circumstances of the case. It was further urged that the entire case against his client is on the basis of the statement of appellant Jayant Sanghanee, who is an accomplice, and, therefore, the statement is not acceptable unless there is adequate corroboration for the same. The learned Counsel contended that there is no such corroboration at all and there fore appellant Haresh Chimanlal Vora is entitled to be exonerated. The learned Counsel further submitted that even in the remand report relating to appellant Jayant Sanghanee and one Kiran Sanghanee no mention at all is made about appellant Haresh Chimanlal Vora and this would only prove that Haresh Chimanlal Vora was thought of only at a later stage. Finally, the learned Counsel pleaded for reduction.
6. Shri Hassan, the learned Counsel for the appellant Jayant Sanghanee, submitted that the inculpatory statement recorded from him on 13-1-1986 and 14-1-1986 by the authorities is neither voluntary nor ture and would not merit acceptance. It was urged that the statement was brought out under threat and coercion and was retracted. The learned Counsel further submitted that the Show Cause Notice against his client proceeded on the basis that he illicitly imported the goods in question whereas penalty has been imposed on him under the impugned order as an abettor. This inconsistency even in regard to the very charge and assessment of evidence and final conclusion, it was urged, would vitiate the impugned order. The learned Counsel submitted that his client merely assisted appellant Haresh Chimanlal Vora in respect of the import of two Video game machines imported in the present case without knowing that they contained contraband goods. The learned Counsel further urged that the findings of the adjudicating authority in para 26 of the order that his client pleaded guilty through his counsel and prayed for lenient sentence is not factually correct. The learned Counsel finally drew our attention to paras 30 and 31 of the impugned order in regard to the findings of the adjudicating authority against the appellants Haresh Chimanlal Vora and Jayant Sanghanee and contended that consistent with the findings appellant Jayant Sanghanee should have been dealt with very leniently in any event.
7. Shri Dharmapal, the learned Consultant appearing for appellant Rajan Menon, submitted that the inculpatory statement recorded from his client on 13-1-1986 was retracted on 16-1-1986 and therefore, no reliance can be placed on the same. It was further urged that appellant Rajan Menon was not given adequate opportunity to cross-examine the other persons, particularly Jayant Sanghanee, who has given a statement implicating him and, therefore, the impugned order was assailed as not legally tenable. It was further urged that while the Custom House Agent G.H. Bhai & Co. had played a major role in respect of the clearance of the goods concerned in this case as well as similar goods referred to in the adjudication order on earlier occasions the Proprietor Abhaylalan had not been proceeded against by the authorities whereas appellant Rajan Menon a Clerk in their office merely carrying out their instructions has been proceeded against and penalised. This was urged to show that investigation has not been impartial and the authorities were lopsided in their outlook.
8. Shri C.V. Krishnan, the learned D.R., submitted that the inculpatory statements recorded from appellants Jayant Sanghanee, Rajan Menon and another person Kiran Sanghanee whose appeal has since been disposed of, are voluntary and true and would clearly bring out the charges against the appellants herein. The learned D.R. further submitted that appellant Jayant Sanghanee and the said Kiran Sanghanee respectively retracted their inculpatory statements only on 2-8-1986 and 20-8-1986 in their reply to the Shew Cause Notice and the belated retraction is not entitled to any credence. The learned D.R. further urged that the role played by appellant Rajan Menon has been clearly brought out not only by his statement but also by the other evidence on record.
9. We have carefully considered the submissions made before us. The question that arises for our consideration in the present case is whether the evidence and materials on record clearly bring home the charges levelled against the appellants. The plea of the learned Counsel for appellant Haresh Chimanlal Vora that a show cause notice was not served and therefore the impugned order is not sustainable cannot be accepted. We find that the impugned order dated 7-4-1987 has been sent to an address in Bombay where admittedly it has been received on behalf of appellant Haresh Chimanlal Vora and the show cause notice dated May, 1986 was sent to the same address and, therefore, it is for the appellant to explain as to how the notice can be said to have not been sent to the proper address. To a specific query in this regard the learned Counsel drew our attention to the affidavit filed by the appellant in support of his stay petition. On going through the affidavit, we find that no details at all have been given as to where exactly the appellant was living at the time when the Show Cause Notice was issued and except a bare averment that he settled down in Surat in March, 1986, nothing is stated as to how and on whose instructions the impugned order addressed to his earlier Bombay address Was received by his brother or brother's wife. Apart from it in terms of Section 27 of the General Clauses Act and also Section 3(c) of the Indian Post Offices Act read with presumptions applicable under Section 114 of the Evidence Act, if a Registered communication under acknowledgement due is sent to the address of a particular person there is a statutory presumption that the same has been received by the addressee and this presumption is a rebuttable one. The ratio decidendi of the Ruling of the Supreme Court in the case of Harcharan Singh v. Shiv Rani reported in AIR 1981 S.C. 1284 and that of Allahabad High Court in the case of Ganga Ram v. Phulwati reported in AIR 1970 ALL. 446 is to the same effect. In the present case no materials have been brought forth by the appellant to rebut this presumption and the receipt of the impugned order at his Bombay address only reinforces our conclusion that the show cause notice sent to the same address must have been sent back wantonly. It is admitted before us that appellant Haresh Chimanlal Vora did not give any reply to the show cause notice much less participated in any personal hearing. Therefore, the entire evidence on record against him remains unrebutted as it were, and also unchallenged during adjudication. The plea of the learned Counsel that the second statement of appellant 3ayant Sanghanee alone implicates his client Haresh Chimanlal Vora and the same is not acceptable cannot be countenanced.
We have carefully gone through the statements recorded not only from the appellant Jayant Sanghanee but also from appellant Rajan Menon and the other person Kiran Sanghanee and. The statement of appellant Jayant Sanghan'ee is very comprehensive and graphic and gives complete details about the association and close connection between appellant Haresh Chimanlal Vora and and how appellant Haresh Chimanlal Vora took appellant Jayant Sanghanee to countries like Hong Kong and Japan and masterminded the scheme of importing contraband goods by concealing them in Video game machines and how successfully such operations took place in the past. On carefully going through the statements of appellant Jayant Sanghanee dated 13-1-1986 and 14-1-1986, we have absolutely no doubt whatever in our minds about the culpable role played by appellant Haresh Chimanlal Vora and how he was intimately connected with this illegal transaction. We also do not find any substance in the plea of the learned Counsel that the name of Haresh Chimanlal Vora does not find a place in the remand report relating to appellant Jayant Sanghanee and one Kiran Sanghanee. When the statement of Jayant Sanghanee dated 13-1-1986 and 14-1-1986 is not disputed the fact of non-mention of the role played by appellant Haresh Chimanlal Vora in the subsequent remand report and that too relating not to appellant Haresh Chimanlal Vora but other people is of no connection or relevance at all and at any rate would not help appellant Haresh Chimanlal Vora in any way.
10. So far as appellant Jayant Sanghanee is concerned, we find that during adjudication he pleaded guilty to the charge through his Counsel and the wordings of the adjudicating authority in para 26 of the impugned order are unambiguous and clear to the effect that appellant Jayant Sanghanee pleaded for a lenient view being taken pleading that he was not directly involved in the importation but was only assisting appellant Haresh Chimanlal Vora in the importation of the contraband goods in question. It was urged before us that this plea by the learned Counsel for appellant Jayant Sanghanee during adjudication is not factually correct and except an oral assertion to this effect no affidavit even was filed from the advocate who represented appellant Jayant Sanghanee before the adjudicating authority. Be that as it may, without being influenced by his plea of guilt before the adjudicating authority we are proceeding to consider the case of appellant Jayant Sanghanee from the evidence available on record. We have already adverted to the very detailed and comprehensive statement recorded from him by the authorities on 13-1-1986 and 14-1-1986 and it is not disputed before us that the statement is clearly inculpatory in nature and confessional in character implicating himself and. As rightly contended by the learned D.R., the inculpatory statement were admittedly retracted by him only on 2-8-1986 and at the time when he gave a reply to the Show Cause Notice and there is absolutely no explanation for such belated retraction and we therefore reject the belated retraction as an afterthought. No doubt we find considerable force in the submission of the learned Counsel that the part played by appellant Jayant Sanghanee is only to assist, appellant Haresh Chimanlal Vora and this circumstance should be taken into consideration while evaluating the gravity of offence committed by him. One important factor to which we would like to make particular and pointed reference in this context is the fact that even before us it is contended on behalf of appellant Jayant Sanghanee that the goods in question viz.
two Video game machines concerned in this case were imported with his assistance only by appellant Haresh Chimanial Vora. In the teeth of such an assertion not only before the adjudicating authority but also before us, we fail to see how it could be contended with any justification by appellant Haresh Chimanlai Vora that he is totally unaware of the whole thing and is not in any way concerned with the goods imported.
11. We would also like to refer to the statement recorded from one Kiran Sanghanee on 13-1-1.986 by the authorities wherein he has clearly stated that appellant Jayant Sanghanee knew about the concealment of contraband goods in the Video game machines and that appellant Rajan Menon stated that the goods would be cleared without problems. Kiran Sanghanee has also referred to the discussions appellant Jayant Sanghanee had with appellant Rajan Menon at Casino Hotel on 10-1-1986 in respect of their plan about the import of the goods in question.
12. Shri Dharmapal, the learned Consultant for appellant Rajan Menon submitted that the inculpatory statement from his client dated 13-1-1986 is not voluntary and true and was brought out under threat and coercion. We have gone through the statement and we are convinced that the same is voluntary and true. While the plea has been taken that the statement was brought out under threat and coercion, we find that before the Judicial Magistrate at the time of remand on 16-1-1986 there is no whisper or allegation of threat or coercion in regard to the statement and this fact has been correctly dealt with in para 28 of the impugned order by the adjudicating authority. We find that appellant Rajan Menon has been clearly implicated in the statement of appellant Jayant Sanghanee and Kiran Sanghanee. We also find that certain incriminating documents relating to the import of similar contraband goods in the past were recovered from the possession of appellant Rajan Menon and this aspect has been referred to in para 7 of the impugned order. This circumstance can certainly be taken as a relevant piece of evidence while appreciating the inculpatory statement of appellant Rajan Menon. The plea of the learned Consultant that appellant Rajan Menon's employer M/s. G.H. Bhai & Co. represented by Proprietor Abhaylalan has not been proceeded against will not in any way vindicate Rajan Menon's innocence. No doubt we take into consideration the fact that the role played by appellant Rajan Menon is comparatively minor when compared to the role played by appellant Haresh Chimanlal Vora and Jayant Sanghanee. We also take note of the fact that he was languishing in jail for nearly about a year as a COFEPOSA detenu. This aspect of the matter has also been dealt with in para 33 of the impugned order.
13. Therefore, on a consideration of the entire evidence on record, we are inclined to hold that the charges against the appellants have been clearly brought home by the evidence and in this view of the matter, we confirm the findings of the adjudicating authority against the appellants herein.
14. In regard to the quantum of penalty,. we find that a major role has been played by appellant Haresh Chimanlal Vora and goods of very substantial value referred to above were attempted to be smuggled into the country. We also find that similar goods had already been imported illegally by him in the past with with the assistance of the other appellants and. In the circumstances, we do not find any warrant for giving a substantial reduction in the quantum of penalty as was pleaded before us. We. therefore, reduced the penalty on appellant Haresh Chimanlal Vora from Rs. 1,00,000 to Rs. 75,000/- (Rs. Seventy-five thousand). Having regard to the fact that appellant Jayant Sanghanee has only assisted appellant Haresh Chimanlal Vora in respect of the import in question and cannot be said to be directly the beneficiary of the illegal import, we reduce the penalty imposed on him from Rs. 1,00,000 to Rs. 50,000 (Rs. Fifty thousand). So far as appellant Rajan Menon is concerned, we find that he has been a COFEPOSA detenu for nearly a year and only an employee in a small job under a Customs Clearing House Agent M/s. G.H. Bhai & Co., it is obvious that appellant Rajan Menon has been tempted into this illegal activity by petty monetary consideration. The adjudicating authority himself in para 33 of the impugned order has referred to the circumstances for taking a lenient view against him. The learned Consultant for appellant Rajan Menon also produced before us at the time of hearing a certificate issued by the Tehsildar of Cochin to show that he does not have any property. Taking all these factors into consideration, we reduce the penalty imposed on him from Rs. 25,000/-to Rs. 5,000/- (Rs. Five thousand).
15. Except for the above modifications, the appeals are otherwise dismissed.