Judgment:
1. This appeal is directed against the order of the Additional Collector of Customs (Preventive) Indo Nepal Border, Muzaffarpur dated 30-5-1983 absolutely confiscating the contraband goods (synthetic fabrics) valued at Rs. 96,000/- under Section 111 (d) of the Customs Act, 1962, the Act for short, confiscating Jonga Jeep bearing registration No. RJA 392 under Section 115(2) of the Act, and imposing a penalty of Rs. 4,00,000/- on the appellant under Section 112 of the Act. On the basis of information that contraband goods were to be transported from Bairgania through the jeep (Jonga RJA 392), the Customs Officers proceeded to the place on 24.4.1982. The authorities recovered the contraband goods in question from the premises of a flour mill at Musachak. Since there was no satisfactory account for licit possession and acquisition of the goods by any one, the authorities effected seizure of the same under Mahazar as per law. The authorities searched the residential premises of the appellant and seized the said jeep opposite to his house from near a field. The appellant's brother, Shri R. Prasad gave a statement before the authorities on 25-4-1982 that the jeep in question belonged to the appellant and it was parked outside the said mill. It is in these circumstances after further investigation proceedings were instituted against the appellant resulting in the present impugned order appealed against.
2. Sri P.R. Biswas, learned consultant for the appellant, submits that the appellant disowns the goods as well as the jeep under seizure and submits that in the entire case records there is absolutely not a ray of evidence connecting the appellant with the commission of any offence in relation to the goods in question. The learned consultant urged that the entire charge against the appellant is sought to be substantiated on the basis of certain circumstances and urged that the circumstances do not lead to the sole hypothesis that it was the appellant who was either the owner of the goods, or the jeep in question had anything to do with the contraband goods under seizure. The learned consultant further urged that consequent on the exchange of fire between the Customs authorities and certain other persons near the flour mill, the Customs authorities came to the conclusion that it was the appellant who was concerned with the goods and was instrumental in firing at the Customs authorities, and on that basis the impugned order came to be passed. Sri Biswas also drew our attention to the evidence given by the said inspector in the Court of Session at Sitamarhi as prosecution witness I wherein he had categorically stated that the appellant at the dock (referring to the appellant herein) was not present in the vicinity of the scene of occurrence.
3. The learned departmental representative very vehemently contended that the appellant is a veteran smuggler and resorted to firing against the Customs Officers, and in the circumstances it is proved and established that the appellant is the owner of the Jeep as well as flour mill in question wherefrom the contraband goods were seized by the Customs Officers. The learned departmental representative placed reliance on the statement of the brother of the appellant dated 25-4-1982 and also on F.I.R. dated 25-9-1982, and the statement of the inspector of Customs before the Sitamarhi Police Station in Bihar.
4. We have carefully considered the submissions made before us. In the present case the goods as well as the jeep in question were disowned by the appellant. The only question that arises for our consideration in the appeal is whether there is acceptable legal evidence on record to connect the appellant with the commission of any offence in relation to the goods in question. We have carefully gone through the entire records, the background of the seizure of the contraband goods etc.
There was an exchange of fire between the Customs Officers and some other group of persons and, therefore, if in the evidence it is established that there was any connection of the appellant with the goods in question, the impugned order will have to be confirmed in entirety without any leniency whatsoever. But, unfortunately, having gone through the entire evidence available before us, we do not find any evidence at all connecting the appellant with the commission of any offence in relation to the goods under seizure. The learned adjudicating authority has been at pains to catalogue at page 5 of his order various circumstances to find the appellant guilty and of being concerned with the goods in question on inference. On going through the entire evidence on record as well as the impugned order, it cannot be gainsaid that the charge is sought to be substantiated from circumstantial evidence. It is a settled proposition of law that when an offence is sought to be established on the basis of circumstantial evidence, the circumstantial evidence must be compatible only with the guilt of the person and totally incompatible with the innocence of the accused. The Supreme Court and the various High Courts in a number of cases are at pains to point out repeatedly that the circumstantial evidence should lead only to one hypothesis viz. the guilt of the persons concerned. We would like to bear in mind that the proceedings under the Act being penal in nature if the circumstantial evidence does not conclusively establish the culpability of the appellant, the appellant would be entitled to the benefit of doubt. Bearing all these well settled propositions in mind if we analyse the evidence on record with the circumstances, it does not justify the finding which the adjudicating authority has arrived at under the impugned order against the appellant. First of all the finding of the adjudicating authority that the appellant must be the owner of the flour mill which stands benami in the name of another is not warranted by the evidence on record. We have carefully gone through the statement of the appellant's brother, Sri R. Prasad, on 25-4-1982, and in that statement there is no whisper of any allegation against appellant connecting him with the goods in question. It is not disputed by the learned departmental representative that no goods were recovered from the jeep in question.
Therefore, even assuming for the purpose of argument that the appellant is the owner of the jeep in question that circumstance is purely neutral with reference to the culpability of the appellant vis-a-vis the contraband goods in question. We would also like to note that the inspector of Customs who spearheaded the operation on that day of seizure has testified in the Court of Session as PW1, and we have taken pains to completely go through the entire testimony of the inspector.
Even in the evidence given by the inspector a person vitally interested in bringing the appellant to book under the law, we do not find any material at all against the appellant. On the other hand, the inspector of Customs has categorically admitted in the Court that he would not be able to say whether the appellant is one who was present on that day at all at the place of occurrence. The plea of learned departmental representative that the F.I.R. in question is against the appellant is not acceptable. The first information report is not a piece of substantive evidence. Even in the FIR it is nowhere stated that it is the appellant who was either present, or had anything to do with the contraband goods under seizure. The adjudicating authority has referred to the involvement of the appellant in a previous case of smuggling of contraband goods valued at Rs. 41,478/- seized at Sitamarhi railway station on 7.4.1977. We do not see any relevance at all to the reference of the appellant's previous bad antecedents by the authorities in the reasoning portion of the impugned order. The previous bad antecedent is not a relevant factor for adjudging the guilt and it is only after consideration of entire legal evidence on record if a Court comes to a conclusion of guilt against a person the previous conviction of a person would be a relevant factor for purposes of awarding rigorous punishment. The adjudicating authority in the impugned order has observed that the appellant has manipulated ownership of the mill in question to cover his smuggling activities. He has further observed that 'this is the usual practice adopted to cover nefarious activities". We do not find any warrant in the evidence to support the above finding of the learned Collector. This finding of the learned adjudicating authority is purely conjectural not having any basis in evidence. The finding of the adjudicating authority under the impugned order that the appellant was present on the spot is also not supported by any evidence on record. To a specific query in this regard the learned departmental representative could not draw our attention to any part of the evidence on record in support of this finding. The adjudicating authority has misdirected itself in giving a finding against the appellant on the ground that the medical certificate furnished by the appellant on 26-4-1982 "is clearly a manipulation". We would like to note that the falsity of defence ipso facto would not establish the case of the department. No doubt the falsity of defence may be one of the relevant circumstances that might be taken into consideration in conjunction with other evidence available on record.
The finding of the learned Additional Collector that there is direct evidence of the seizing officer who had seen the accused opening fire at the time of seizure of the contraband goods is also not based on evidence available on record. This finding is a factual error. On the other hand, as pointed out earlier, even the testimony of the inspector of Customs as PW 1 in Sessions Court would appear to be in favour of the appellant and not against the appellant. We would like to observe that in a case of this magnitude there should have been better investigation. In our opinion, notwithstanding the exchange of fire that took place on the date of seizure, it would not have been difficult for the Customs authorities to have gone about the investigation at a later point of time to find out as to wherefrom the goods came and at which point of time the goods were deposited in the mill field and what is the connection of the appellant with the goods in question etc. In the present case it is not disputed that the ownership of the flour mill in question stands in the name of different person and no statement would appear to have been recorded from the said owner that he was only a name lender and benamidar for the appellant. Substantial quantity of contraband fabrics were found deposited in the flour mill and a number of persons should have been engaged in the operation as coolies and they could have been examined and by investigation it would have been possible to find out as to who was the man behind the whole thing. We are not happy with the occurrence of this kind where the person who was responsible for transporting the contraband goods on the day in question at the flour mill and who went to the extent of actually shooting at the officers should go scot free.
But unfortunately, we cannot help exonerating the appellant because unless there is evidence either direct or circumstantial to show atleast by preponderance of probabilities that it is the appellant who was concerned in the commission of the offence, it is not possible in our system of jurisprudence to find him guilty of such a charge. On going through the records we may state that the various circumstances set out engender a grave suspicion in our minds about the involvement of the appellant with the commission of the offence in relation to the goods in question. Suspicion, however grave it may be, can scarcely take the place of proof. The appellant, in any event, would be entitled to the benefit of doubt arising in the facts and circumstances of this case. Therefore, by giving the appellant the benefit of doubt, we exonerate him of the charge and set aside the impugned order appealed against.