1. The revision application filed before the Government of India against the order of the Central Board of Excise and Customs dated 18-4-1980 under which the Board while confirming the finding of the Additional Collector of Customs, Cochin against the appellant, modified and reduced the penalty levied on the petitioner by the original authority from Rs. 1,00,000/- to Rs. 10,000/-, stands transferred to this Tribunal in terms of Section 131B(2) of the Customs Act, 1962 for being disposed of as if it were an appeal filed before the Tribunal.
2. On 7-1-1972 at about 4 PM on the basis of prior information the Asst. Collector of Customs, Kozhikode Division, along with the officers visited the godown at No. 22, M/s. Patel Volkart Ltd. at Kozhikode known as "Bales Godown" and recovered there from contraband goods of various types such as typewriters, grinders, bread roasters, shock absorbers etc. of foreign origin detailed in the impugned order and valued at Rs. 5,75,640/-, in 82 bundles. The authorities effected seizure of the same and instituted proceedings against various persons and in the present appeal I am concerned only with reference to the appellant against whom ultimately the Central Board of Excise and Customs sustained a penalty of Rs. 10,000/- under Section 112 of the Act on the ground that he was also concerned in the commission of offence in respect of the goods in question in the godown.
3. Shri P. Raghunadhan, the learned counsel for the appellant submitted that there was absolutely no ray of evidence either direct or circumstantial to connect the appellant with the commission of any offence in respect of the contraband goods seized from the godown. Even on the very next day of the seizure on 8-1-1972 the appellant gave a statement before the authorities that except procuring the godown for lease to other persons he has no connection either with the godown much less with the persons who are the lessees or with the goods under seizure. The learned counsel placed reliance on the observations of the adjudicating authority in the internal pages 20 & 21 of the order and contended that merely because the appellant was instrumental in securing the godown on lease to other persons the appellant has been imputed with the knowledge of storage of the contraband goods in the godown and visited with penalty on mere suspicion. The learned counsel drew my attention to the findings in the impugned order of the Board and contended that the Board has also upheld the penalty on the ground that the appellant was aware of the nature of transactions and therefore "was somewhat concerned in harbouring the smuggled goods". It was therefore submitted that accepting entire evidence on record in entirety, no evidence is brought home against the appellant and at any rate the appellant is entitled to the benefit of doubt in the facts and circumstances of the case.
4. The learned SDR urged that in the second statement recorded from the appellant on 13-4-1972 he had stated that he knew about the storage of contraband goods in the godown in question and did not disclose it to the authorities for fear.
5. I have carefully considered the submissions made before me. The short question that arises in the present appeal is whether there is any legal evidence on record either direct or circumstantial to bring home the charge of abetment against the appellant in respect of commission of offence under the Act relating to the contraband goods under seizure. The adjudicating authority viz. Addl. Collector of Customs in considering the evidence against the appellant, has found the appellant guilty merely on the ground that the appellant was instrumental in securing the godown on lease for others who had been penalised with reference to the storage of contraband goods. To appreciate the point involved it would be better to extract the observations of the adjudicating authority verbatim in this context: "Shri R.P. Hussain was occupying "Zill Bungalow" of M/s. Patel Volkart on a monthly rent of Rs. 500/-. He was in touch with the Management of M/s. Patel Volkart Ltd. and had introduced a person in whose favour he wanted the godown to be hired. It was on his recommendation and apparently on personal pursuasion the management agreed to lease out the godown in the name of Shri K.A. Ahamed.
There are strong reasons to hold that Shri R.P. Hussain had projected an impression that the godown is for a business partner and had shown very active interest. The proximity of the godown to his residence, the interest taken by him in making the officials of M/s. Patel Volkart to lease out the godown and his close connection with Basheer Ahamed and his associates, definitely indicate that he had a major role to play in this affair. It is significant that he undertook to ensure the rent for the same is paid regularly.
What is more relevant is the fact that contraband was found from a godown, for whose hiring, Shri R.P. Hussain had taken the trouble of meeting the Branch Manager, M/s. Patel Volkart Ltd." The Board also in considering the evidence in the impugned order, has observed as under: "The same applies to R.P. Hussain but it is evident that his role was not directly connected with the handling of the smuggled goods.
He was only aware of the nature of the transactions and to that extent he was somewhat concerned in harbouring the smuggled goods.
He has therefore been correctly found to be liable to penalty by the Collector but considering the somewhat limited role played by him, the amount of penalty is reduced from Rs. 1 lakh to Rs. 10,000/-".
In the entire case records there is no evidence to connect the appellant with the commission of any offence as an abettor in respect of the contraband goods in question. The mere fact that the appellant was instrumental in securing the godown on lease to some of his friends who were guilty of storing the contraband goods, would not ipso facto make for an offence under the Act so far as the appellant is concerned.
Even if the appellant had knowledge that some other persons subsequent to having taken the premises on lease had stored the contraband goods, that knowledge simpliciter on the part of the appellant would not make for an offence for abetment under law. In order to sustain a charge of abetment, there must be evidence either direct or circumstantial to connect the appellant as one concerned either directly or indirectly in the commission of an offence in respect of the contraband goods as an abettor or that the appellant was privy to the commission of an offence by others. On going through the findings of the adjudicating authority and the Board, I am convinced that the appellant has been visited with penalty on the basis of a very grave suspicion in the minds of the authority about the possible involvement of the appellant in the commission of the offence relating to the goods in question.
Presumably, in the light of the evidence collected against other persons directly involved and also having regard to the close relationship the appellant had with them, I think that the authorities had grave suspicion against the appellant with reference to his possible involvement as an abettor in the commission of offence. But it is well settled that suspicion however strong or grave it may be, cannot take place of proof and the proceedings being penal in nature, the appellant would be entitled to the benefit of doubt in the facts and circumstances of the case. As regards the confession in the second statement referred to and relied upon by the learned SDR, I only find mere knowledge on the part of the appellant about the storage of contraband goods by other persons, which he did not disclose to the authorities on grounds of fear. This mere awareness or knowledge on the part of the appellant with reference to the offence committed by others, would not ipso facto make for an offence of abetment under law and something more by way of evidence is required. Presumably this is the reason why the Board itself has substantially reduced the penalty to Rs. 10,000/- on the appellant. Therefore on considering the entire evidence on record, I am inclined to hold that the appellant is entitled to the benefit of doubt arising in the facts and circumstances of the case and I give the appellant benefit of doubt and exonerate him from the charge of abetment and set aside the penalty imposed on the appellant and allow the appeal with consequential relief.