Customs, Excise and Gold Tribunal - Tamil Nadu
Muniangode Mohammed And Ors. vs Collector Of Customs on 31 January, 1992
Equivalent citations: 1993(45)ECR57(TRI.-CHENNAI)
ORDER
S. Kalyanam, Member
1. The above applications have been filed seeking modification of the order of the Tribunal dated 25.11.1991 directing the petitioners to pre-deposit a sum of Rs. 2,00,000 each on or before 31.1.1992.
2. Shri Karim, the learned senior counsel, submitted that certain important questions of law arise, which have been set out not only in the applications seeking modification of the order but also by way of caution separate applications as well to adduce additional grounds, and contended inter alia that there is a finding in the impugned order that the first statement recorded by the DRI officers in the office of the Collector was under coercion and, therefore, the finding of the adjudicating authority that the subsequent statement recorded when the petitioners were in judicial custody in jail could be relied upon and considered along with the earlier statement against the petitioners is untenable. It was further urged that the Customs Officer has no jurisdiction or authority to record a statement after a person has been remanded to judicial custody. The learned Counsel, referring to Section 4 and Section 164 of the Criminal Procedure Code, contended that it is only a Judicial Magistrate who would be competent to record a confession after a person has been remanded to judicial custody and recording of a statement by a Customs Officer would be outside the scope of the Customs Act, 1962 in the circumstances of the case when the petitioners had been remanded to judicial custody. He further urged that the impugned order is ab initio void by reason of a finding that the first statement recorded by the DRI officers from the petitioners in the Collector's office is under coercion and by reason of the void nature of the order the petitioners do not have to challenge the correctness of the same by way of appeal and it is only for the purpose of getting a declaration that the impugned order is null and void the appeals have been primarily filed and, therefore, the question of the petitioners making any pre-deposit much less one in terms of Section 129E of the Customs Act, 1962 to exercise their right of appeal would hardly arise. Referring to the writ proceedings before the Delhi High Court as against the COFEPOSA detention of the petitioners, the learned Counsel contended that inasmuch as the Delhi High Court has set aside the order of detention holding that there was no application of mind by the detaining authorities and as such the detention was not in conformity with Article 22, Clause (5) of the Constitution of India the whole proceedings would become mala fide and in such situation the adjudicating authority cannot purport to exercise the power of adjudication and pass the impugned order, which would be legally untenable. Finally, the learned Counsel urged that if the Tribunal is not convinced with reference to the above points, the Tribunal may consider modification of the order by reducing the quantum of the amount to be pre-deposited having regard to the petitioners' financial incapacity or as a final alternative at least extension of time up to April 1992.
3. Shri Namasivayam, the learned DR, urged that there is no basis either on facts or in law to hold that the first statement recorded in the Collector's office from the petitioners was under coercion. There is no warrant for such a conclusion even in the reasoning of the adjudicating authority. The learned DR submitted that the Customs Officers can record statements under Section 107 irrespective of the fact whether the petitioners arc on bail or in remand. The learned DR also urged that the reference to the Criminal Procedure Code is not of any relevance in the facts and circumstances of the case.
4. We have carefully considered the submissions made before us. After carefully going through the impugned order, we do not find any warrant or basis at all in support of the contention that the adjudicating authority has found that the first statement recorded from the petitioners by the DRI officers in the office of the Collector is under coercion. In our view, this plea is obviously misconceived on facts. We also prima facie do not find any force in the plea that the Customs Officer has no jurisdiction to exercise the powers in recording a statement under Section 107 of the Customs Act if the person is in judicial remand. Reference to Section 4 and Section 164 of the Criminal Procedure Code, in our view, has no application or relevance in the context of the present case. The plea that the impugned order is ab initio void is also bereft of any substance. There is no finding of mala fides in the COFEPOSA detention writ proceedings in the order of the Delhi High Court and if the detention order is set aside on the ground that there was no full application of mind by the detaining authority and the order was, therefore, not in accordance with Article 22, Clause (5) of the Constitution, such findings would not in any way militate or take away the jurisdiction of the adjudicating authority to exercise the powers of jurisdiction under the Customs Act, 1962.
5. Excepting an ipse dixit no evidence has been adduced in support of the plea of financial incapacity on the part of the petitioners. Having regard to the facts and circumstances and also the magnitude and nature of the offences, we do not find any warrant for modification of the order of the Tribunal in regard to the quantum of penalty which the petitioners have been directed to pre-deposit. However, since a plea has been made for extension of time, we grant extension of time to the petitioners till 30th April, 1992 as specifically prayed for by the learned Counsel for the petitioners for making the pre-deposit in terms of the order of the Tribunal. The matters will be called on 30th April, 1992 for reporting compliance.
(Pronounced in open court).
V.P. Gulati, Member
6. I agree with my learned Brother. I, however, like to add that under Sections 107 and 108 there is no mention as to the place where the enquiry by the Customs Officer can be held and all that these two Sections provide for is the authority to the Officer for conducting the enquiry and obviously this can be carried out only at the place where the person is available or where he can come. In the present case the person was under detention and, therefore, the statement could be recorded only in the prison and in the presence of the Jail Superintendent. Prima facie there is nothing in law to show that the officer who recorded the statement was not competent to do so. The learned Advocate's plea is that a person has to be free and not in jail in case of statement recorded from him has to be taken as admissible in law. All that can be said is the person should be free to make a statement notwithstanding that he is in jail. No case has been prima facie made out before us that the person was not free to make a statement which has been recorded from him and no prima facie case has been made out that the person was under any sort of coercion. The reference made by the learned Advocate to the Criminal Procedure Code and Civil Procedure Code in the context of the recording of the statement prima facie has no bearing. No case law has been cited before us that the statement as recorded is prima facie not admissible in law.
(Pronounced in open court)