Customs, Excise and Gold Tribunal - Mumbai
Rajbir Singh Santokh Singh And Anr. vs Collector Of Customs (Prev.) on 8 December, 1987
Equivalent citations: 1988(35)ELT122(TRI-MUMBAI)
ORDER K. Gopal Hegde, Member (J)
1. These two appeals arise out of and are directed against the Order No. VIII(b)10(43)-Cus.86 dated 10-12-1986 passed by the Additional Collector of Customs (Preventive), Bombay.
2. As these appeals involve common questions of law and facts and they arise out of a single order they are clubbed together, heard together and hence this common order.
3. The brief facts necessary for the disposal of these appeals are :
On the basis of secret information, the officers of the D.R.I., Bombay Zonal Unit kept watch around Thane on the night of 13-1-1979 and intercepted two trucks bearing registration Nos. MHS-5179 and MWU-3765 They also apprehended one Shri Fakrudeen F. Shaikh from truck No. MHS-5179 and three persons by names Ramswaroop Bodhraj Bakshi, Kallu Munneshwar Yadav and Abdul Rashid Tolkar. Cursory examination of the trucks revealed that they were loaded with gunny bags containing textiles of foreign origin. The detailed examination and inventory were made at the Customs House. Truck No. MWU-3765 contained 86 packages containing textiles of foreign and truck No. MHS-5179 had 94- packages of textiles of foreign origin. After recording the statements of the apprehended persons, the trucks and the goods were seized in the reasonable belief, that they were liable to confiscation under the Customs Act.
4. The investigation carried out disclosed that the two trucks in-question were purchased by the appellant Santokh Singh one in the name of his son Shri Rajbir Singh (appellant in appeal No. C-367/87-Bom) and another in the name of his wife Smt. Lakbir Kaur.
5. After the completion of the investigation show cause notices were issued to the appellants and others as to why the two trucks should not be confiscated and why penalty should not be imposed on them.
6. The Addl. Collector who held the enquiry, after consideration of the replies to the show cause notice and after affording personal hearing, ordered confiscation of the seized goods; and the two trucks but allowed redemption on payment of fine of Rs. 50,000/- in lieu of confiscation of the trucks. He also imposed a penalty of Rs. 3,00,000/-on the appellant Santokh Singh and a penalty of Rs. 1,50,000/- on the appellant Rajbir Singh.
7. In these two appeals the appellants have challenged the confiscation of the trucks as well as the penalties imposed on them.
8. Shri Phulchandani, advocate appearing for the appellant firstly submitted that there is no legal evidence against any of the appellants to establish that they were in any way concerned with the seized goods or had dealt with the seized goods. Therefore, no penalty could have been imposed on either of the appellants. Shri Phulchandani further submitted that the only circumstances relied upon by the adjudicating authority against the appellant Rajbir Singh were firstly his abscondence and secondly the statement of the driver Manilal recorded on 17-1-1986. Shri Phulchandani submitted that even if the statement of Manilal is accepted, it does not establish the appellant was in any way concerned with the contraband goods or had dealt with the contraband goods in any manner. He further submitted admittedly the truck in question was not purchased by him, it was purchased by his father in his name. He was neither in possession nor control. He had not employed the driver. No other witness had implicated Rajbir Singh. Therefore, the penalty should be set aside.
9. As regards Santokh Singh, the contention of Shri Phulchandani are manyfold. They may be summarised as under :
(1) There was no evidence to establish that the two vehicles were purchased by him were used as means of transport for the carriage of contraband goods with his knowledge or connivance. The burden of proof is on the Department. The Department is required to establish by satisfactory evidence that the appellant Santokh Singh knew that his truck was being used for the carriage of smuggled goods or atleast there should be some evidence to impute knowledge to the appellant. The evidence disclosed that certain persons approached the appellant for the trucks for carrying grass and the appellant with the bona fide belief directed his drivers to take the trucks. In the circumstances, the confiscation of the trucks as well as the penalty on Santokh Singh are bad in law.
(2) The evidence against the appellant Santokh Singh is mainly consisted on co-accused or accomplices. Their evidence is tainted and unworthy of belief. The evidence of the accomplices and co-accused cannot be accepted without independent corroboration. There is no such corroboration.
(3) Even the statement of the co-accused are self-contradictory.
(4) The witness who implicated the appellant was not the appellant's regular driver. He was a badli driver. Even his statement is not believable because according to him the appellant Santokh Singh gave instruction in the morning whereas the evidence of the other witnesses was that the appellant was approached for the trucks only in the afternoon.
(5) The evidence of Kallu the cleaner is contradictory and he had contradicted the statement of Tolkar as well as Fakhrudeen.
(6) It is Fakhrudeen and Tolkar who corroborated with each other and carried out the nefarious activites of the carriage of smuggled goods without the knowledge of the appellant. The appellant was only a victim of circumstances.
(7) The statement of Tolkar is unbelievable. He had at one stage stated that he did not know Papaji. But then identifies the photograph of the appellant Santokh Singh as that of Papaji.
(8) The adjudicating authority had relied on the circumstances of abscondence of the appellant but then it was out of fright that his vehicle was clandestinely used by Fakhrudeen and others the appellant went to his native place. His absence should not have been made use as a circumstance against him.
(9) The adjudicating authority had relied on the confession of the appellant but then he had failed to take into consideration that the appellant had retracted his confession. Even the so-called confession was not found in the first statement. The second statement which was retracted was not the statement of the appellant but the departmental officers.
(10) The Additional Collector had ordered confiscation under Section 115 without specifying clause under which the confiscation was ordered. Therefore, the order is bad. There is no evidence to establish that there was contravention of Section 115(1)(c). Therefore, the allegation in the show cause notice that there was contravention of Section 115(1)(c) is baseless. The whole order is based on assumptions and presumptions. If the veracity of the confessional statement is doubtful, even if it is admissible in evidence the same need not be accepted as true. The statement of Santokh Singh created doubt regarding the veracity. Therefore, the Additional Collector was not justified in relying upon his confessional statement.
(11) No precautions were prescribed under Section 115(2) in the absence of prescription of precautions the confiscation of the vehicle under Section 115(2) is bad.
(12) The appellant can only adduce positive proof. He cannot be called upon to prove a negative fact.
(13) When it is shown that the witness is unreliable his evidence cannot be relied upon.
10. In support of the various submission, Shri Phulchandani relied on the following decisions :
(1) 1983 ELT page 163, (2) AIR Supreme Court 1579-1977 (3) 1986 (26) ELT page 35 (4) 1981 (21) ELT 906 (5) 1982 ELT 397 (6) 1984 (15) ELT 1375 (7) 1982 ELT 397 (Bombay) (8) 1984 (15) ELT 375 (9) 1986 (25) ELT 358 (10) 1986 (8) ECR 532.
11. Shri Prabhu appearing for the respondent Collector fully supported the order for the reasons stated by the adjudicating authority. Shri Prabhu submitted that the Additional Collector did not order confiscation under Section 115(1)(c). The confiscation was under Section 115(2) and the Addl. Collector had allowed redemption which clearly indicates that the order of confiscation was under Section 115(2). Shri Prabhu further submitted that there is no legal bar to rely on the statements or the confessional statements of the accomplices. In that connection he placed reliance on the Kerala High Court judgment reported in 1984 (15) ELT page 129. Shri Prabhu further submitted none of the witnesses excepting the appellant Santokh Singh, had retracted their statement. There was overwhelming evidence to establish the guilt of both the appellants. Shri Prabhu also urged that if the appellants were in no way concerned with the smuggled goods there was no reason for them to run away from the normal place of residence. It is a very strong circumstance that the appellants knew that the vehicle were used for the carriage of contraband goods.
12. In reply, Shri Phulchandani submitted that the statement dated 17-1-1986 was obtained by duress. An application to this effect was filed before the Criminal Court on 21-4-1986.
13. I have carefully considered the submissions made on both the sides and perused the records of the case.
14. In order to appreciate the rival contentions, it is necessary to set out certain facts which are undisputed. The two trucks which are the subject matter of this appeal were admittedly purchased by Santokh Singh one in the name of his wife and another in the name of his son. The appellant Santokh Singh was in control of the trucks. It was he who was giving the trucks on hire. The evidence did not disclose that the registered owners of the truck namely the appellant Rajbir Singh or Smt. Lakhbir Kaur, had any control over the trucks, or they were hiring out the trucks. On 12-1-1986 the appellant Santokh Singh hired out the trucks. One of the trucks was. driven by his permanent driver Manilal. The other truck was driven by a badli driver Ram Swaroop. Kallu Muneeswar Yadav was employed as a cleaner of the truck MWU-3765. When the DRI officers intercepted the two trucks they were loaded with contraband textiles. The driver Manilal as well as the cleaner of the truck MHS-5179 managed to escape. Fakhrudeen Shaikh, one of the occupants of the truck MHS-5179 was apprehended at the spot. His statement was recorded. Among other things, he stated that Manilal driver approached with truck and asked to accompany him. He later identified Manilal. He also spoke about the existence of the smuggled goods in the truck.
15. Badli driver Shri Ramswaroop, cleaner Kallu Muneeswar Yadav and Abdul Rashid Tolkar wer apprehended along with Truck MWU-3765. In his statement Ramswaroop stated that on the morning of 12-1-1986 he went to the office of the appellant Santokh Singh and he was informed by the appellant that some textiles etc. will have to be brought from Nalla Sopara in the evening and for which he will get Rs. 2,000/-. He also asked him to take a truck and wait near a theatre at Bandra. Accordingly, he took the truck MWU-3765. He further stated another person boarded the truck and he was instructed by the appellant Santokh Singh that that person would hand over the goods. He further stated that another truck of the appellant MHS-5179 reached the place where he had stopped his truck and thereafter they proceeded to Nalla Sopara where one more truck registered under No. MTS-8831 belonging to one Sardarji from Sion-Koliwada was also found. He then spoke about the loading of the contraband goods. He also identified Manilal the driver of the other truck. He further identified the photograph of the appellant Santokh Singh.
16. Abdul Rashid Tolkar who was apprehended among other things stated that he got acquainted with one Fakhrudeen Shaikh and that Shaikh told him if he joins in the transportation of the contraband goods he would get good amount. He, therefore, accompanied Fakhrudeen. He also stated that together they went to Sardarji known as Papaji and that Sardarji agreed to give two trucks to Shaikh. In other respects, he corroborated the statement of Ram Swaroop. Fakhrudeen in his statement stated that on 12-1-1986 Manilal approached him with the truck and asked to accompany him. Thereafter he went in that truck to Vajreswari Naka where Manilal asked him to wait. He further stated that Manilal returned to Naka at 7.30 hours in the morning loaded with goods and covered with a tarpaulin.
17. Driver Manilal who was apprehended on 16-1-1986 admitted that he was working as driver of truck No. MHS-5179. He further stated that his employer Santokh Singh asked him to take truck MHS-5179 to go with Fakhrudeert to Nalla Sopara to bring contraband goods. He further stated Ram Swaroop was on truck No. MWU-3765. He also stated that cleaner Kallu and Fakhrudeen were in the truck of Ram Swaroop. It was also in his statement that both the trucks were loaded with gunny bag packages and also on instruction of Fakhrudeen and Ram Swaroop started back to Bombay via Bhiwandi when the trucks were stopped he managed to escape. In his further statement dated 17-1-1986, Manilal stated that earlier he was afraid to tell the truth because of the threat of his employer. He then stated that on 12-1-1986 he along with Santokh Singh's son Rajbir Singh went in the truck and after taking the tarpaulin he proceeded via Ahmedabad High Way.
18. It is thus seen that the trucks were apprehended with contraband goods. The statement of witnesses other than Fakhrudeen disclosed that appellant Santokh Singh gave the trucks for the carriage Of contraband goods. If the evidence of driver Manilal, Ram Swaroop and cleaner Kallu Abdul Tolkar is accepted, then not only that the trucks were used for carriage of contraband goods stand established but the guilt of appellant Santokh Singh also gets established because it was Santokh Singh according to the evidence of two drivers and cleaners that told them to go with Fakhrudeen for bringing contraband goods. Nothing has been alleged against those three persons. All of them are admittedly the employees of the appellant Santokh Singh. It is true that driver Ram Swaroop was a badli driver. But the appellant Santokh Singh himself admitted that Ram Swaroop was engaged for that trip. Just because show cause notices were issued to Ram Swaroop, Manilal and Kallu. The appellant cannot take shelter under the theory that they are co-accused or accomplices. Significantly the appellant did not seek cross-examination of any of the three persons. The said persons have no reason to falsely implicate the appellant. They have not retracted their statement. It is true that in his statement Manilal did state that on the earlier occasion he could not come out with full truth. But then the second statement was not contrary to the earlier statement. There was only an addition namely implication of Rajbir Singh.
19. The evidence did not rest with the statements of those three persons. The appellant himself was questioned. He admitted having hired out the trucks. But his statement was that hiring out was for the purpose of carrying grass. This part of his statement is not even supported by Fakhrudeen to whom the appellant was stated to have hired out the truck. The statement of Fakhrudeen was that he was approached by the driver Manilal. The above apart, in his statement recorded on 16-1-1986 the appellant made an admission that at the time when he hired out the truck he knew that the trucks were being used for the purposes of carriage of smuggled goods. In his subsequent statement dated 17-1-1986 he confirmed his earlier statement. Significantly, the appellant did not retract his statement dated 16-4-1986 but only retracted the statement dated 17-4-1986. Even this retraction was not immediately thereafter. But only after the show cause notice was issued. No credence can be given to such a retraction. There is ample evidence to establish that the appellant Santokh Singh knowingly gave the trucks for the carriage of contraband goods. He was for all purposes the owner of the trucks and in any case in exclusive possession of and had control over the trucks. In the circumstances, the Additional Collector was wholly justified in ordering confiscation of the trucks which were admittedly used for the carriage of the contraband goods and also imposing a personal penalty on the appellant Santokh Singh. There is no force in the contention of Shri Phui-chandani that the finding of the Addl. Collector is based on assumptions and presumptions.
20. Even if we are to accept the contention of Shri Phulchandani that the witnesses Kallu, Ram Swaroop and Manilal stand as accomplices and their evidence requires corroboration there is enough corroboration : firstly the trucks were given by appellant Santokh Singh to his drivers. Secondly the trucks were found loaded with contraband goods at the time of interception, and thirdly that the driver Manilal escapes on interception and reports the matter to the appellant Santokh Singh, which fact is admitted by appellant Santokh Singh. Even if we are to discard the evidence of all those three persons, there is the confessional statement of appellant Santokh Singh himself. That statement itself is sufficient to order confiscation and impose penalty.
21. Coming to the decisions relied on by the learned Advocate, in the case of Mogal Lines Ltd. v. Additional Collector of Customs Bombay, 1982 ELT 397-Bom., Justice Pendse had held that if the findings of the Addl. Collector of Customs were conflicting and contrary the order of. confiscation passed by him under Section 115 of the Customs Act was not sustainable in law. This decision is not applicable to the facts of the present case. There is no conflicting findings in the order of the Addl. Collector. His finding was that appellant Santokh Singh had knowledge about the carriage of the smuggled goods. Therefore the above decision is of no assistance.
22. In Hong Kong Island Shipping Co. Ltd. v. Additional Collector of Customs (Preventive) 1986 (26) ELT 35-Bom. His Lordship Pendse held that Sub-section 2 of Section 115 makes it clear that the burden is on the owner of the vessel or the agent or Master of the ship to establish that all requisite precautions were taken and in spite of that and without the knowledge and connivance, the vessel was used for the purpose of smuggling. On the fact of that case, His Lordship came to the conclusion that it was not possible to take a view that the Master had not taken sufficient precaution to prevent the use of the vessel for the purposes of smuggling. In the instant case, there was over-whelming evidence to establish that the appellant Santokh Singh even at the time he gave the trucks knew that they were being used for the carriage of smuggled goods. Therefore, the above decision also is distinguishable on facts. The other decision of the South Regional Bench, namely, Rajina Bibi v. Collector of Central Excise and Customs, Madurai - 1986 (25) ELT 358 is also distinguishable on facts. In that case the adjudicating authority found that neither the owner nor the driver nor any of the agent in charge of the vehicle had any knowledge of the conveyance being used as a transport for smuggling of goods under seizure. Therefore, the South Regional Bench held that the order of confiscation of the vehicle under Section 115(2) was bad. But in the instant case, the Addl. Collector's finding was that the appellant Santokh Singh had knowingly gave the trucks for the carriage of contraband goods.
23. The decision of this Bench reported in 1986 (8) ECR 532 also is of not much assistance to the appellant. In that case, this Bench found the statement relied upon by the adjudicating authority was that of an unreliable witness, which was not corroborated by any of the evidence either documentary or oral. In the instant case, there is the confession of the appellant. Further his trusted driver Manilal had also implicated the appellant Santokh Singh.
24. In A.I.R. 1977 Supreme Court 1579 Dagdu and Ors etc. v. State of Maharashtra, the Supreme Court held that though an accomplice is a competent witness and though a conviction may lawfully rest upon an uncorroborated testimony, yet the Court is entitled to presume and may indeed be justified in presuming in the generality of cases that no reliance can be placed on the evidence of an accomplice unless that evidence is corroborated in material particulars, by which is meant that there to be some independent evidence tending to incriminate the particular accused in the commission of crime. The Supreme Court also observed that it is hazardous, as a matter of prudence, to proceed upon the evidence of a self-confessed criminal who, insofar as an approver is concerned, has to testify in terms of the pardon tendered to him. The risk involved in convicting an accused on the testimony of an accomplice, unless it is corroborated in material particulars, is so real and potent that what during the early development of law was felt to be a matter of prudence has been elevated by judicial experience into a requirement or rule of law. All the same, it is necessary to understand that what has hardened as a rule of law is not that the conviction is illegal. If it proceeds upon the uncorroborated testimony of an accomplice but that the rule of corroboration must be present to the mind of the Judge and that corroboration may be dispensed with only if the peculiar circumstances of the case make it safe to dispense with it.
25. In this case one of the witnesses on whose statement the adjudicating authority relied on is the appellant's permanent driver Manilal. His conduct makes it amply clear that he was very much interested in the appellant. When the truck was intercepted he takes the risk of running away and immediately reports the matter to his Master. Therefore, there should be no legal objection to rely upon the statement of such a witness. If it is otherwise trustworthy. We have no reason to disbelieve the version of Manilal. As stated earlier, besides the statement of Manilal there is a confessional statement of the appellant himself. None of the decisions relied on by Shri Phulchahdani is sufficient to dislodge the finding recorded by the Addl. Collector insofar as the appellant Santokh Singh is concerned. We, therefore, reject his appeal which was directed against the confiscation of the trucks and imposition of penalty on him.
26. Coming to the appeal of the appellant Rajbir Singh, the Additional Collector gave two reasons to impose penalty of Rs. 1,50,000/- on him. The two reasons given are : (1) In his statement recorded on 17-1-1986 Manilal had stated that he had gone along with Rajbir Singh with the truck to the spot where the contraband goods were loaded in his truck, and (2) That Rajbir Singh disappeared from the scene immediately after the seizure. Shri Mulchandani had contended that in his statement recorded on 16-1-1986 Manilal had not implicated Rajbir Singh. He had further contended that no other witness had implicated Rajbir Singh. He also contended that just because Rajbir Singh had disappeared from the date of seizure no adverse inference can be drawn against him. Though the abscondence of Rajbir Singh may not by itself be an incriminating circumstance against him the other evidence that he was present at the spot where the contraband goods were loaded, if believed, would be sufficient to uphold the penalty imposed on him.
27. We have perused the statement of Manilal recorded on 17-1-1986. That statement as called out in the show cause notice reads : "that on the instruction of Fakhrudeen he brought the contraband goods and his truck was apprehended on his return. That time Fakhrudeen was in his truck No. MHS-5179, cleaner Kallu and Rashid Tolkar were with Ram Swaroop in other truck. He did that work on the instruction of his employer in order to get more money. He also stated that he was threatened by his employer Santokh Singh that if he would tell anything about that work to anybody the consequences would be very bad for him. Thus he was afraid of stating the truth. But now he wanted to come out with the truth. On 12-1-1986 he along with his employer's (Santokh Singh) son Rajbir Singh went in the truck after taking the tarpaulin which was not in the truck and thereafter he proceeded via Ahmedabad High Way, and while returning he was caught with the contraband goods...." It is true that in his statement dated 16-1-1986, Manilal did not implicate appellant Rajbir Singh. Manilal's statement that they went in the truck after taking tarpaulin finds some corroboration in the statement of Ranbir Singh. Ranbir Singh had stated that he was asked to wait near Bandra Open Air Theatre and Manilal came with the tarpaulin in his truck. Further, when the D.R.I. officer intercepted the truck, the driver Manilal and another person ran away. Manilal did not state that there was a cleaner in the truck. It is quite possible that it was Rajbir Singh that had run away. It is in this Context the disappearance of appellant Rajbir Singh assumes importance. If Rajbir Singh was not in any way concerned, with the smuggled goods, he has no reason to be away from Bombay and go to his native place at Punjab. The evidence, in our opinion, is sufficient to impose the penalty on Rajbir Singh also.
28. On consideration of all aspects, we see no reason to interfere with the order passed by the Addl. Collector. We, therefore, reject both the appeals.