Rajiv Gupta and anr. Vs. Cc - Court Judgment

Excerpt:
1. these are two appeals filed by the appellants viz. shri rajiv gupta and ajay gupta against the order-in-original dated 2.9.1993 passed by the collector of customs, new delhi imposing penalty of rs. 50,000/- on ajay gupta and rs. 25,000/-on shri rajiv gupta under section 112 of the customs act 1962. learned counsel for the appellants has contended that there is no provision in the customs act for punishing the attempt to commit an offence; that by release of the currency, the independent corroboration has gone; he has drawn our attention to paras 3, 4 and para 13(v) of the show cause notice and submitted that after reading of the said paras one can easily make out that the offence wishing to receive is not punishable under the customs act though it may be punishable under other provisions of law like fera and ndps. in this regard he relied upon the decision in the case of punit kumar sakhuja and another reported in 2001 (43) 797 (t). he also contended that assuming but not admitting if on the basis of allegations an offence to attempt is made out, that would also not be punishable in view of the leading case on the subject in the case of malkiat singh reported in air 1970 sc page 713. he contended that this decision of the hon'ble apex court has been followed by this tribunal in the case of karnataka trading company . the learned advocate has, therefore, forcefully contended that for the aforesaid reasons, the penalty imposed on both the appellants may be set aside.2. learned dr appearing on behalf of the revenue has contended that the release of the foreign currency does not mean that the appellants are absolved of the charges levelled against them; he contended that everything has been admitted by the appellants as in the show cause notice and as such smuggling has already taken place. he also contended that the case law cited by the learned advocate for the appellants are distinguishable on the facts of the case involved in the present case and rather they support the case of the revenue as the activities of carrying, depositing, selling, etc., are covered under section 112 of the customs art and they are as such punishable. he relied upon the decision in the case of sachidhananda banerjee reported in 1984 ecr page 518 (sc) and 1999 (110) elt 292 and contended that to aid and to abet is very well punishable under the provisions of customs act.3. in his rejoinder, the learned advocate submitted that there is no allegation of abetment against the appellants in the show cause notice and moreover in view of the definition of abetment as contained in section 107 of the ipc no abetment has been committed by the appellants and as such the provisions of section 112(b) of the customs act will not be applicable. he also contended that at page 15 of the impugned order, the retraction has been clearly recorded and no evidence has been brought on record with regard to the alleged past activity. more over, he has also contended that mens rea has not be proved in the case.4. after hearing the rival submissions, perusal of the records and the case laws cited by both the parties, we find that no role has been assigned to shri rajiv gupta and his involvement is not proved and interests of justice would be met if the amount of penalty is reduced to rs. 25000/- in the case of ajay gupta and the amount of penalty imposed on shri rajiv gupta is set aside. we order accordingly.operative part of the order announced in open courtseparate order(v.k. agrawal) (krishna kumar) 5. i agree with the order as recorded by my learned brother. however, i would like to mention that 100 foreign mark gold bars were seized on 29.8.1991 by the officers after they intercepted a maruti car no.dl-3c-b 4362 and tasvir singh gill admitted that the gold was to be delivered to ajay gupta and rajiv gupta who were waiting outside the bengali sweet shop at gole market, new delhi. ajay gupta was found there along with his brother rajiv gupta. the officers also recovered a card from tasvir singh on which telephone number belonging to ajay gupta was written. tasvir singh in his statement dated 29.8.1991 admitted to have handed over gold biscuits to ajay on earlier two occasions and this time also gold was meant for ajay who also admitted the same in his statement. the adjudicating authority, after considering all the material, has given specific findings in the impugned order that the statements of tasvir singh and ajay gupta gave a graphic and detailed account of events and the modus operandi of delivery of gold to ajay gupta and that the statements of both tasvir singh and ajay gupta corroborate each other. the adjudicating authority, in view of these facts, had not given any credence to the retractions which, according to him, are nothing but a clear afterthought. i agree with his findings. it is observed from his reply to the show-cause notice that "tasvir singh never stated that the noticee was waiting for him at gole market. in fact the dri officers approached the noticee's shop premises at kucha mahajani, chandni chowk and told his brother shri sanjay gupta that they were businessman and they wanted to meet ajay gupta (the noticee) for some personal urgent work. in good faith, the noticee's brother. shri sanjay gupta told the dri officers that the noticee had just left for gole market to make some purchases and thereafter he would go to buy furniture. it is through this method that the dri could locate the noticee and his brother rajiv gupta at gole market crossing near bangali sweet shop." 6. there is nothing mention as to how the officers and on what basis first went to the appellant's shop at kucha mahajani and further recognized him at gole market. in his retraction letter dated 31.8.1991 also ajay gupta had not given any reason as to what he was doing at gole market at the time of interception. it is only in his subsequent letter dated 6.9.1991 that he had mentioned that they had gone to purchase furniture. the facts in the case of punit kumar sakhuja, supra, are different inasmuch as in the present matter, ajay gupta was found at gole market, the place mentioned by tasvir singh in his statement. i am also of the view that the ratio of the judgment in the case of malkiat singh does not apply as there was nothing to suggest that paddy was being transported to delhi since the truck was intercepted at a barrier which was 32 miles from delhi and the delhi-punjab boundary was about the 18th miles from delhi. in the present matter the gold had been brought to india illegally and the appellant was found at the appointed place. section 112 of the customs act provides for imposition of penalty on any person "who acquires possession or is any way concerned in carrying...or purchasing or in any other manner dealing with any goods." the supreme court held in sachidanand banerjee, acc, calcutta v. sitaram agarwala 1999 (110) elt 292 (sc) : 1984 ecr 518 (sc) as under: the words "in any way concerned in any manner dealing with prohibited goods" are of very wide import.7. in this case sitaram had gone with a large sum of money to purchase the gold after previous arrangement with the chinese accused. the court observed that "if the constable who was following sitaram had not interfered the deal would have gone through and sitaram would have paid the money and purchased the smuggled gold. this was a case therefore where by means of previous arrangement with a person in possession of a smuggled article, the intending purchaser had gone to purchase it...it would in our opinion be a case where such a person must be held to be concerned in dealing with the prohibited goods.in view of this penalty is imposable on shri ajay gupta which is reduced to rs. 25,000/-

Judgment:
1. These are two appeals filed by the appellants viz. Shri Rajiv Gupta and Ajay Gupta against the Order-in-Original dated 2.9.1993 passed by the Collector of Customs, New Delhi imposing penalty of Rs. 50,000/- on Ajay Gupta and Rs. 25,000/-on Shri Rajiv Gupta under Section 112 of the Customs act 1962. Learned Counsel for the appellants has contended that there is no provision in the Customs Act for punishing the attempt to commit an offence; that by release of the currency, the independent corroboration has gone; he has drawn our attention to paras 3, 4 and para 13(v) of the show cause notice and submitted that after reading of the said paras one can easily make out that the offence wishing to receive is not punishable under the Customs Act though it may be punishable under other provisions of Law like FERA and NDPS. In this regard he relied upon the decision in the case of Punit Kumar Sakhuja and Another reported in 2001 (43) 797 (T). He also contended that assuming but not admitting if on the basis of allegations an offence to attempt is made out, that would also not be punishable in view of the leading case on the subject in the case of Malkiat Singh reported in AIR 1970 SC page 713. He contended that this decision of the Hon'ble Apex Court has been followed by this Tribunal in the case of Karnataka Trading Company . The learned Advocate has, therefore, forcefully contended that for the aforesaid reasons, the penalty imposed on both the appellants may be set aside.

2. Learned DR appearing on behalf of the Revenue has contended that the release of the foreign currency does not mean that the appellants are absolved of the charges levelled against them; he contended that everything has been admitted by the appellants as in the show cause notice and as such smuggling has already taken place. He also contended that the case law cited by the learned Advocate for the appellants are distinguishable on the facts of the case involved in the present case and rather they support the case of the Revenue as the activities of carrying, depositing, selling, etc., are covered under Section 112 of the Customs Art and they are as such punishable. He relied upon the decision in the case of Sachidhananda Banerjee reported in 1984 ECR page 518 (SC) and 1999 (110) ELT 292 and contended that to aid and to abet is very well punishable under the provisions of Customs Act.

3. In his rejoinder, the learned Advocate submitted that there is no allegation of abetment against the appellants in the show cause notice and moreover in view of the definition of abetment as contained in Section 107 of the IPC no abetment has been committed by the appellants and as such the provisions of Section 112(b) of the Customs Act will not be applicable. He also contended that at page 15 of the impugned order, the retraction has been clearly recorded and no evidence has been brought on record with regard to the alleged past activity. More over, he has also contended that mens rea has not be proved in the case.

4. After hearing the rival submissions, perusal of the records and the case laws cited by both the parties, we find that no role has been assigned to Shri Rajiv Gupta and his involvement is not proved and interests of justice would be met if the amount of penalty is reduced to Rs. 25000/- in the case of Ajay Gupta and the amount of penalty imposed on Shri Rajiv Gupta is set aside. We order accordingly.

Operative part of the order announced in open courtSeparate Order(V.K. Agrawal) (Krishna Kumar) 5. I agree with the Order as recorded by my learned Brother. However, I would like to mention that 100 foreign mark gold bars were seized on 29.8.1991 by the Officers after they intercepted a Maruti Car No.DL-3C-B 4362 and Tasvir Singh Gill admitted that the gold was to be delivered to Ajay Gupta and Rajiv Gupta who were waiting outside the Bengali Sweet Shop at Gole Market, New Delhi. Ajay Gupta was found there along with his brother Rajiv Gupta. The Officers also recovered a card from Tasvir Singh on which telephone number belonging to Ajay Gupta was written. Tasvir Singh in his statement dated 29.8.1991 admitted to have handed over gold biscuits to Ajay on earlier two occasions and this time also gold was meant for Ajay who also admitted the same in his statement. The Adjudicating Authority, after considering all the material, has given specific findings in the impugned Order that the statements of Tasvir Singh and Ajay Gupta gave a graphic and detailed account of events and the modus operandi of delivery of gold to Ajay Gupta and that the statements of both Tasvir Singh and Ajay Gupta corroborate each other. The Adjudicating Authority, in view of these facts, had not given any credence to the retractions which, according to him, are nothing but a clear afterthought. I agree with his findings. It is observed from his reply to the show-cause notice that "Tasvir Singh never stated that the Noticee was waiting for him at Gole Market. In fact the DRI Officers approached the Noticee's shop premises at Kucha Mahajani, Chandni Chowk and told his brother Shri Sanjay Gupta that they were businessman and they wanted to meet Ajay Gupta (the Noticee) for some personal urgent work. In good faith, the Noticee's brother. Shri Sanjay Gupta told the DRI Officers that the Noticee had just left for Gole Market to make some purchases and thereafter he would go to buy furniture. It is through this method that the DRI could locate the Noticee and his brother Rajiv Gupta at Gole Market crossing near Bangali Sweet Shop." 6. There is nothing mention as to how the Officers and on what basis first went to the Appellant's shop at Kucha Mahajani and further recognized him at Gole Market. In his retraction letter dated 31.8.1991 also Ajay Gupta had not given any reason as to what he was doing at Gole Market at the time of interception. It is only in his subsequent letter dated 6.9.1991 that he had mentioned that they had gone to purchase furniture. The facts in the case of Punit Kumar Sakhuja, supra, are different inasmuch as in the present matter, Ajay Gupta was found at Gole Market, the place mentioned by Tasvir Singh in his statement. I am also of the view that the ratio of the judgment in the case of Malkiat Singh does not apply as there was nothing to suggest that Paddy was being transported to Delhi since the truck was intercepted at a barrier which was 32 miles from Delhi and the Delhi-Punjab Boundary was about the 18th Miles from Delhi. In the present matter the gold had been brought to India illegally and the Appellant was found at the appointed place. Section 112 of the Customs Act provides for imposition of penalty on any person "who acquires possession or is any way concerned in carrying...or purchasing or in any other manner dealing with any goods." The Supreme Court held in Sachidanand Banerjee, ACC, Calcutta v. Sitaram Agarwala 1999 (110) ELT 292 (SC) : 1984 ECR 518 (SC) as under: The words "in any way concerned in any manner dealing with prohibited goods" are of very wide import.

7. In this case Sitaram had gone with a large sum of money to purchase the gold after previous arrangement with the Chinese accused. The Court observed that "If the constable who was following Sitaram had not interfered the deal would have gone through and Sitaram would have paid the money and purchased the smuggled gold. This was a case therefore where by means of previous arrangement with a person in possession of a smuggled article, the intending purchaser had gone to purchase it...it would in our opinion be a case where such a person must be held to be concerned in dealing with the prohibited goods.

In view of this penalty is imposable on Shri Ajay Gupta which is reduced to Rs. 25,000/-