Farooq Desai Vs. Commissioner of Customs (Prev.) - Court Judgment

Excerpt:
1. these two appeals are against the imposition of penalty of rs. 2 lakh on each of the appellant section 112 of the customs act, 1962.2. the appellants are absent and unrepresented despite notice. i have read the memoranda of appeals and heard the departmental representative.3. the customs officers seized a car, which contained 9 silver ingots weighing about 290 kgs and other goods, parked in the compound of a housing society. following investigations into the seizure notices were issued to various persons including the two appellants before me, proposing penalty on them. in his order the collector has found these two appellants to be involved in the smuggling and imposed penalty on them.4. the collector relies upon the following features in coming to his conclusion about the involvement of these two persons, who are brothers, in the smuggling of silver. flat 403 in nyaya deep building is owned by amin desai, who is the brother of these two appellants. the information received by the department indicated that a person connected with the smuggling is the owner of the flat. the statement of the watchman of the housing society complex showed that just before the customs officers arrived at the building, imtiaz desai, who was occupying flat 403 left the flat. at this time a consignment of heavy metal which appear to be silver was loaded in a van. this van was found to be owned by prakash takelia, who had sent it to a garage for repair.dr. jagdish rathod, a friend of amin desai requested for storage of his baggage at flat no. 403 and farooq was reluctant to oblige him. imtiaz desai was making frantic calls in gujarati in rathod's presence.5. none of these statements is enough evidence to penalise either of the appellants. the statement of the informer, needless to say, is hardly an evidence of credible nature. informants have various motives for implicating persons whom they do not like, and it is well known that an informer may pass on to the officers a mixture of genuine and false information. not even a remote connection between the van and either of the two appellants has been established. the fact that farooq desai was reluctant to accommodate the baggage of dr. rathod apparently a friend of amin in the flat, can in no way lead to the conclusion that it is because some contraband was stored in the house. one can think of a number of reasons for his reluctance. he may have been reluctant to take responsibility. he may not have been getting well with his brother amin desai. virtually every person in the course of his life, remotely unconnected with the smuggling, makes frantic telephone calls during crises; it verges on the absurd to cite this fact as evidence of involvement of smuggling. there is in short no material whatsoever to justify imposition of penalty on these appellants.6. i therefore set aside the order imposing penalty on these two appellants and allow the appeals.

Judgment:
1. These two appeals are against the imposition of penalty of Rs. 2 lakh on each of the appellant Section 112 of the Customs Act, 1962.

2. The appellants are absent and unrepresented despite notice. I have read the memoranda of appeals and heard the departmental representative.

3. The Customs officers seized a car, which contained 9 silver ingots weighing about 290 kgs and other goods, parked in the compound of a housing society. Following investigations into the seizure notices were issued to various persons including the two appellants before me, proposing penalty on them. In his order the Collector has found these two appellants to be involved in the smuggling and imposed penalty on them.

4. The Collector relies upon the following features in coming to his conclusion about the involvement of these two persons, who are brothers, in the smuggling of silver. Flat 403 in Nyaya Deep building is owned by Amin Desai, who is the brother of these two appellants. The information received by the department indicated that a person connected with the smuggling is the owner of the flat. The statement of the watchman of the housing society complex showed that just before the Customs officers arrived at the building, Imtiaz Desai, who was occupying Flat 403 left the flat. At this time a consignment of heavy metal which appear to be silver was loaded in a van. This van was found to be owned by Prakash Takelia, who had sent it to a garage for repair.

Dr. Jagdish Rathod, a friend of Amin Desai requested for storage of his baggage at Flat No. 403 and Farooq was reluctant to oblige him. Imtiaz Desai was making frantic calls in Gujarati in Rathod's presence.

5. None of these statements is enough evidence to penalise either of the appellants. The statement of the informer, needless to say, is hardly an evidence of credible nature. Informants have various motives for implicating persons whom they do not like, and it is well known that an informer may pass on to the officers a mixture of genuine and false information. Not even a remote connection between the van and either of the two appellants has been established. The fact that Farooq Desai was reluctant to accommodate the baggage of Dr. Rathod apparently a friend of Amin in the flat, can in no way lead to the conclusion that it is because some contraband was stored in the house. One can think of a number of reasons for his reluctance. He may have been reluctant to take responsibility. He may not have been getting well with his brother Amin Desai. Virtually every person in the course of his life, remotely unconnected with the smuggling, makes frantic telephone calls during crises; it verges on the absurd to cite this fact as evidence of involvement of smuggling. There is in short no material whatsoever to justify imposition of penalty on these appellants.

6. I therefore set aside the order imposing penalty on these two appellants and allow the appeals.