Customs, Excise and Gold Tribunal - Tamil Nadu
G. Sridhar And Ors. vs Collector Of Customs on 7 March, 1992
Equivalent citations: 1992(43)ECR95(TRI.-CHENNAI)
ORDER
S. Kalyanam, Member
1. The above applications have been filed for waiver of pre-deposit of penalty of Rs. 10.00 lakhs on each of the petitioners under Section 112(a) & (b) of the Customs Act, 1962, the Act for short, under the impugned order of the Collector of Customs, Madras, dated 24.4.1991.
2. Shri Govindaswamynathan, the learned Senior Counsel appearing for the petitioners in Stay petitions C/Stay/417 to C/Stay/419 contended that in the impugned order reliance has been placed against the petitioners on the statements recorded from third parties viz. Khader, M. Mohamed and Mammutty and Abubucker who have been also proceeded against in adjudication along with the petitioners and penalised under the impugned order. It was urged that the petitioners made specific requests in reply to the show cause notice seeking cross-examination of the said persons who have implicated the petitioners in their inculpatory statements given before the authorities during investigation and even during personal hearing the petitioners insisted on the right of cross-examination of the said persons. Apart from it, the petitioners also submitted written arguments which are referred to in para 32 of the impugned order wherein their plea for cross-examination was reiterated. The learned adjudicating authority has denied the petitioners the right of cross-examination without assigning any valid or proper reason under law and denial of this valuable right is violative of the principles of natural justice and would vitiate the impugned order. The learned Counsel further urged that the petitioners have not given any inculpatory statement and no contraband gold was recovered from the petitioners and the petitioners have been visited with penalty only on the basis of the statements recorded from the the aforesaid persons. The learned Counsel placed reliance on the ratio of the ruling of the Supreme Court in the case of State of Kerala v. KT Shadulireported in AIR 1977 page 1627 and in particular para 5 of the said judgement and urged that the aim of rules of natural justice is to secure justice and prevent miscarriage of justice and this rule requires opportunity to be given to persons likely to be affected by the decision. It was contended that the ratio of the said ruling emphasised that cross-examination is one of the most efficacious method of establishing truth and exposing falsehood and by reason of the denial of the valuable right of cross-examination of the persons who have implicated the petitioners, the impugned order would stand prima facie vitiated on the ground of violation of principles of natural justice and this was urged as a prima facie factor in grunting waiver of pre-deposit of penalties on the petitioners pending disposal of the appeals.
3. Shri A. Nazeer, the learned Counsel appearing for Stay petition C/479/91 while adopting the arguments of the learned Counsel for other petitioners further submitted that inculpatory statements of his client Shri Abubucker was not voluntary and true and would not merit acceptance prima facie since the same was recorded when he was in a state of de facto detention. Complaint was made to the Magistrate about the coercion brought on him by the authorities when they recorded the inculpatory statement. The learned Counsel also referred to the correction in the statement recorded and urged that on this circumstance alone the statement will have to be rejected and discarded. He also pleaded that Abubucker was taken into custody at 3 AM on 8.12.1988 and was remanded only at 8.20 PM on 9.12.1988 and his statement was not immediately recorded. Referring to para 4 of the impugned order, the learned Counsel contended that even the adjudicating authority has not chosen to place reliance in the statement of petitioner Abubucker but has only relied upon the statements of Khader, M. Mohammed and Mammutty. Retraction of the said three persons of their statements is not considered in the impugned order which would indicate prima facie want of application of mind on the part of the adjudicating authority. The learned Counsel further urged that denial of right of cross-examination of the said three persons by the petitioner would offend the concept of the principles of natural justice and vitiate the impugned order. The learned Counsel also placed reliance on the Division Bench ruling of the Madras High Court reported in 1985 ECC (5) page 146 in the case of Saleem Khan v. Deputy Director Enforcement. The learned Counsel also referred to the order of the High Court in the COFEPOSA proceedings quashing the detention of Abubucker particularly with reference to certain observations which according to the learned Counsel would indicate that the statements were not voluntary and true. Finally he also pleaded financial hardship stating that though Shri Abubucker is an Income Tax assessee and owns a house in Harrington Road, Madras and runs a Medical shop in the name and style of Pioneer Pharmacy, he is unable to make the pre-deposit of penalty. He however, offered to make a pre-deposit of Rs. 50.000/-.
4. Shri Sundaram, the learned Senior Central Govt. Standing Counsel appearing on behalf of the Department made following submissions inter alia. There is no vested right of cross-examination in a person who is proceeded against in adjudication under the Act and the essence of concept of natural justice is only to ensure that no person shall be condemned without being given an opportunity of being heard by a Tribunal and reasonable or fair opportunity of being heard in essence means opportunity of being heard by an unbiased Tribunal. If any reliance is placed on evidence or record against a person then that evidence or record must be placed before him for his information, comment and criticism. Right of cross-examination is not an inflexible rule in all cases and the same would depend upon the facts and circumstances of each case. In the present case, copies of statements of other persons i.e. co-noticees who were also proceeded as petitioners; have been furnished to the petitioners and those statements have been admittedly retracted by the co-noticees. Therefore, plea of violation of natural justice on the ground of denial of opportunity of cross-examination of co-noticees is bereft of any substance. It is not the case of the petitioners that reliance has been placed on the statements of independent third parties not proceeded against in adjudication whose right of cross-examination was denied. In other words, right of cross-examination of witness or third parties or person who is not a party in the. proceedings would stand on a different footing from the right of cross-examination of the co-accused or co-noticees as it were where the said parties have been proceeded, against in adjudication along with the petitioners. The learned Counsel placed reliance on the ruling of the Supreme Court in the case of Kanungo & Co. v. Collector of Customs, Calcutta and in particular on the observations of the Supreme Court in page 2139 at para 12. The learned Counsel also referred to the Division Bench ruling of the Calcutta High Court reported in 1977 Taxation Law Reporter 1754 and in particular on the observation in para 3 & 4 at page 1756 and urged that the right of cross-examination is not necessarily a part of reasonable opportunity. Whether in a particular case a particular party should have the right of cross-examination or not depends upon the facts and circumstances of that case. Reliance was also placed on the ruling of the Kerala High Court in the case of Abraham v. Additional Collector of Customs reported in AIR 1976 Kerala Law Times Page 660 in support of the plea that cross-examination is not an essential requirement of 'opportunity of being heard'. Finally it was urged that at this stage when the Tribunal is considering merely the interlocutory applications for grant of waiver of pre-deposit of penalty pending appeal, the only relevant question would be whether prima facie the impugned order can be said to unsustainable in law on grounds of violation of principles of natural justice as contended on behalf of the petitioners and in the light of the plethora of evidence dealt with in the impugned order by the adjudicating authority and also in the context of the admitted fact that the statements of the co-accused or co-noticees have been furnished to the petitioners and the petitioners were given full and fair and reasonable opportunity to defend themselves against the charges, the impugned order is fully tenable in law. Prima facie there is no infirmity either on facts or on law warranting grant of waiver of pre-deposit of penalty.
5. We have carefully considered the submissions made before us. Proceedings were instituted against the petitioners and others in connection with seizure of 2250 gold biscuits with foreign markings weighing 262.125 Kgs valued at more than Rs. 8.74 crores resulting in the impugned order of the Collector of Customs, Madras, dated 22.1,1991 referred to supra. The question that arises for our consideration in the present applications is whether the impugned order is not prima facie sustainable in law on ground of violation of principles of natural justice. Though the petitioners in stay applications C/Stay/417 to 419 have given exculpatory statements, other petitioners v/z. Khader, M Mohamed, Mammutty have given statements during investigation and those statements are confessional in nature and inculpatory in character implicating them as well as the petitioners herein. Copies of the statements of those persons have been admittedly given to the petitioners herein. Petitioner Abubucker has given inculpatory statement implicating him and the other petitioners. The further fact remains that the inculpatory statements have been subsequently retracted. Persons whose cross-examination was sought for are also persons proceeded against in the adjudication and penalised in the impugned order. It is only in the aforesaid factual background, the plea of violation of principles of natural justice has to be considered. Principles of natural justice ordain that the affected party must be given a fair opportunity of being heard and there is no controversy or quarrel about this axiomatic proposition of law. The twin aspects of natural justice, namely "audi alteram partem" (hear both sides) and "nemo jude in causa sue potest" (no one can be a judge in his own cause) ensure that no person shall be condemned without giving him an effective opportunity of being heard by a tribunal that is free from bias and a reasonable or fair "opportunity of being heard" in essence means an opportunity of being heard by unbiased tribunal. This in short is the quintessence of the rules of natural justice. These principles apply not only to courts, but also to quasi-judicial proceedings and now extended to administrative functions involving civil consequences. The Supreme Court has emphasised in the case of AK Kraipak v. Union of India that principles of natural justice cannot be applied uniformly and they vary from case to case depending upon the facts of each case and the constitution of each Tribunal. The circumstances vary with situations "contracting into a brief even post decisional opportunity or extending into trial type trappings" and "situational modifications" can be made in NATURAL JUSTICE PROCEDURE. The full panoply may not be there but a manageable minimum may make do. Natural justice is a flexible concept and is not "unruly horse". One cannot make a fetish of the concept of natural justice and consign it to a straight jacket of inflexibility. Principles of natural justice are not embodied rules and their aim is to secure justice and prevent miscarriage of justice and these rules supplement the law of the land. The Supreme Court in the case of Abraham v. Collector of Customs 1976 KLT 660 has dealt with the plea of breach of Natural Justice as under:
We may first deal with the question of breach of natural justice. On the material on record, in our opinion, there has been no such breach. In the show-cause notice issued on August 21,1961, all the material on which the Customs Authorities have relied was set out and it was then for the appellant to give a suitable explanation. The complaint of the appellant now is that all the persons from whom enquiries were alleged to have been made by the authorities should have been produced to enable it to cross-examine them. In our opinion, the principles of natural justice do not require that in matters like this the persons who have given information should be examined in the presence of the appellant or should be allowed to be cross-examined by them on the statements made before the Customs Authorities. Accordingly, we hold that there is no force in the third contention of the appellant The Division Bench of the Calcutta High Court in the case of Mahindra Nath Chatterjee v. Collector of Central Excisereported in 1977 TAX L.R. 1754, cited supra, dealing with the right of cross-examination in principles of natural justice has observed as under:
It was next contended that the petitioner-appellant did not have reasonable opportunity because he was denied the opportunity to cross-examine the makers of the statements of the trade opinions. In support of this contention, reliance was placed on the allegations made in paragraph 33 of the petition as also in the statements as appearing from the order of adjudication of the Collector in which he has referred to the said opinion. The right to cross-examination is not necessarily a part of reasonable opportunity. Whether in a particular case a particular party should have the right to cross-examine or not depends upon the facts and circumstances of the case and it very largely depends upon the adjudicating authority who is not guided by the rules of evidence as such. He must, however, afford such opportunity as would ensure to the party concerned proper opportunity to defend himself. It is well known that in these matters the Revenue or Excise authorities are entitled to make their independent enquiries and to rely upon such enquiries provided the result of such enquiries are communicated to the person concerned against whom such enquiry is sought to be relied on and he is given an opportunity to rebut or contradict any evidence adduced by such enquiry. In this case such procedure was followed. The gist of the enquiry and the gist of the opinion of the traders and other wholesale dealers on whose opinion the Collector has relied on in his adjudication order were informed to the petitioner-appellant in the show cause notice itself. Furthermore, it appears from the affidavit-in-opposition that the appellant did not ask for cross-examining any witness save and except that at the personal hearing on 14th June 1962, the learned Advocate appearing for the petitioner asked for an opportunity to cross-examine the particular trader from whom sample of tobacco leaves with portion of butts and stalks attached to them and received by him from the petitioner was found. Even if the appellant's Advocate had asked for such opportunity, in the background of the facts and circumstances of the case, we do not think that the mere fact that the appellant was not given an opportunity to cross-examine the maker of that opinion would be violative of the principles of natural justice.
The Division Bench of the Calcutta High Court in the case of Kishanlal Agarwalla v. collector of Land Customs dealing with the concept of rule of natural justice and "audi alteram partem" and in particular about the plea of denial of natural justice on ground of denial of cross-examination has made the following observations which in our view are apposite in the context of the present case:
There is a good deal of misconception on this question of the right of cross-examination as part of natural justice. Natural justice is fast becoming the most unnatural and artificial justice and for that confusion the Courts are no less responsible than the litigants. Ordinarily the principle of natural justice is that no man shall be a judge in his own cause and that no man should be condemned unheard. This latter doctrine is known as "audi alterant partem". It is on this principle that natural justice ensures that both sides should be heard fairly and reasonably. A part of this principle is that if any reliance is placed on evidence or record against a person then that evidence or record must be placed before him for his information, comment and criticism. That is all that is meant by the doctrine of "audi alterant partem", that no party should be condemned unheard. No natural justice requires that there should be a kind of a formal cross-examination. Formal cross-examination is procedural justice. It is governed by rules of evidence. It is the creation of Courts and not a part of natural justice but of legal and statutory justice. Natural justice certainly includes that any statement of a person before it is accepted against somebody else, that somebody else should have an opportunity of meeting it whether it (sic), by way of interrogation or by way of comment does not matter. So long as the party charged has a fair and reasonable opportunity to see comment and criticise the evidence, statement or record on which the charge is being made against him the demands and the test of natural justice are satisfied. Cross-examination in that sense is not the technical cross-examination in a Court of law in the witness box....
In conclusion all that we need to say is that natural justice must not be strained to become artificial justice. Procedural justice according to statutes or under statutory rules are different from the concepts of natural justice. There the procedure under the statute or the Rules must govern. If the Collector of Land Customs were to convert himself to a regular Court of Law hearing formal cross-examination and applying the Evidence Act and the Civil and Criminal Procedure Codes in this manner as a Court of law then of course it will be physically and literally impossible for him to function as the Collector of Customs Reliance relied by the learned Counsel for the petitioners in Shaduli's case cited supra is distinguishable on the facts of this case and in that case the Supreme Court was considering the scope of Section 17(3) of Kerala General Sales Tax Act. That was a case where the Sales Tax Officer relied upon the evidence of third parties particularly entries in the books of accounts of third parties and did not give right of cross-examination and the Supreme Court in that case observed as under:
Since the evidentiary material procured from or produced by Hazi Usmankutty and other wholesale dealers was sought to be relied upon for showing that the return submitted by the assessee was incorrect and incomplete, the assessee was entitled to an opportunity to have Hazi Usmankutty and other wholesale dealers summoned as witnesses for cross-examination.
6. The facts in the present case are totally different as the Department has placed reliance on the statements of persons in position of co-accused who have also been proceeded against in adjudication as the petitioners are and penalised under the impugned order. Copies of their statements have been given to the petitioners and those statements were also retracted by the persons concerned. As a matter of fact the Supreme Court even in Shaduli's case cited supra while highlighting the fact that rules of natural justice are flexible, referred to the observation of the earlier ruling of the Supreme Court with approval in the case of Kraipak v. Union of India which run as follows:
The aim of the rules of natural justice is to secure justice or to put negatively to prevent miscarriage of justice and justice in a society which has accepted socialism as its article of faith in the Constitution, is dispensed not only by judicial or quasi-judicial authorities but also by authorities discharging administrative functions. This rule which requires an opportunity to be heard to be given to a person likely to be affected by a decision is also like the genus of which it is a species, not an inflexible rule having a fixed connotation. It has a variable content depending on the nature of the inquiry, the framework of the law under which it is held, the constitution of the authority holding the inquiry, the nature and character of the rights affected and the consequences flowing from the decision. It is, therefore, not possible to say that in every case the rule of "audi alteram partem" requires that a particular specified procedure to be followed. It may be that in a given case the rule of "audi alteram partem" may import a requirement that witnesses whose statements are sought to be relied upon by the authority holding the inquiry should be permitted to be cross-examined by the party affected while in some other case it may not. The procedure required to be adopted for giving an opportunity to a person to be heard must necessarily depend on facts and circumstances of each case.
7. So far as Abubucker is concerned he has already given an inculpatory statement and has been implicated by others as well. The adjudicating authority has also referred to a number of circumstances appearing in evidence against him as in the case of other petitioners for imposing penalty.
8. As stated earlier, the question that arises for consideration is whether the f impugned order is not sustainable prima facie on ground of violation of natural justice.
For the reasons stated above, and also on the authorities quoted in extenso above, we hold that prima fade there is no infirmity in the impugned order as contended on behalf of the petitioners on ground of violation of natural justice. The impugned order is very comprehensive one detailing various circumstances appearing of evidence against the petitioners.
9. Petitioners in C/Stay/417 to C/Stay/419/91 did not put forth any plea of financial hardship before us and for petitioner Abubucker (C/Stay/447/91) the learned Counsel offered to make a pre-deposit of Rs. 50.000/-. Having regard to the magnitude and gravity of the evidence, value of the contraband gold, the circumstances appearing in evidence against petitioners, the role played by various persons and other circumstances, we direct each of the petitioners to make a pre-deposit of Rs. 2.00 lakhs (Rupees Two lakhs) on or before 29th May 1992 and report compliance subject to which pre-deposit of the balance amount would stand dispensed with pending appeal. The matter will be called on 29th May 1992 for reporting compliance.
Sd/- (S. Kalyanam) Member V.P. Gulati, Member
10. The above applications have been filed under Section 129E of the Customs Act, 1962. The applicants have pleaded for dispensation of pre-deposit of penalty of Rs. 10.00 lakhs each under Section 112(a) and (b) of the Customs Act, 1962 under the impugned order of the Collector of Customs, Madras. Proceedings were drawn against the applicants consequent on the recovery of smuggled gold weighing 262.125 Kgs valued at Rs. 5,28,96,825 international value on 7/8 December 1986. S/Shri MV Khader, M. Mohammed and Mammutty were apprehended and so also MKS Abubucker. Statements were recorded from them. As a result of the follow-up action residential premises of Sridhar one of the applicants at Chambers Road, Madras was also searched. At the time of seizure a Car TMG 4652 was also found on the premises from where the contraband gold was recovered. From the Car among other things, cash bills relating to purchase of steel by Vandayar Enterprises, Chidambaram were also found. In their statements, Khader, Mohammed and Mammutty and Abubucker each owned up their role in connection with the smuggling of the contraband and also those of the other three petitioners viz. Sridhar, Premkumar and GM Ravi, including the modalities of the landing, delivery and the consideration involved were also revealed. MV Khader in his statement while explaining how the contraband gold had been delivered by Sridhar also stated that Sridhar came in Car TMG 4652 with his driver. Applicant Mammutty explained his role in the landing of the contraband gold and also stated that Sridhar whose photograph was shown to him was one of the persons who arranged for the landing of the contraband gold. Ravi in his statement admitted that they were constructing a Cinema and hotel complex under the name of M/s Vandayar Enterprises, Chidambaram. Based on the evidence gathered as a result of the follow-up investigations, the authorities charged the applicants under the provisions of the Customs Act, 1962 asking by issue of show cause notice as to why penalties should not be levied on them under Section 112(a) & (b) of the Customs Act, 1962. The first three applicants i.e. S/Shri Sridhar, Premkumar and Ravi gave exculpatory statements. Shri Abubucker gave inculpatory statement and corroborated the statements given by MV Khader and Mohammed & Mammutty who have implicated others. He also stated that he was to get 10% commission. Inculpatory statements given were later retracted by various persons. In the proceedings before the learned lower authority among other pleas also urged that reliance could not be placed on the retracted statements and also asked for the cross-examination of the co-noticees. The learned lower authority after hearing detailed reasons in respect of these two picas and also other pleas held that the applicants are liable to penalty under Section 112(a) & (b) of the Customs Act, 1962 and levied penalty of Rs. 10.00 lakhs on each of the applicants.
11. Shri Govindaswaminathan, the learned Senior Advocate appearing on behalf of S/Shri Sridhar, Ravi and Premkumar urged that the lower authority was in error in having penalised the applicants by relying on the evidence of retracted statements of others. As it is, he pleaded that no confessional statement had been given by the applicants and there was no recovery of any contraband gold from them. He pleaded that since reliance has been placed on the statements of four persons who have implicated the applicants, the applicants requested for cross-examination of the said persons and this request was turned down by the adjudicating authority. He pleaded that in law this evidence should have been tested and this could be possible to do only by cross-examination of the said, persons. In this connection he cited the judgement of the Kerala High Court reported in AIR 1977 page 1627 in the case of State of Kerala v. KT Shaduli. He further pleaded that in the absence of any independent evidence implicating the applicants, the action against the applicants was not maintainable in law. He also pointedly referred to the mention in the order-in-original about the recovery of a slip from the Car TMG 4652 which was parked in front of the house from where gold was seized. He pleaded that without putting the applicants on notice in regard to this slip in the show cause notice, the authorities cannot hold this slip as a piece of corroborative evidence for the complicity of the applicants in the smuggling activity. He pleaded that the lower authority's reliance on this slip was totally misplaced.
12. Arguing on behalf of the Respondent, Shri Sundaram, the learned Senior Central Govt. Standing Counsel pleaded that the scope of the enquiry before the Tribunal at this stage is limited and what is to be seen is whether ex-fade there is any infirmity in the order of the lower authority. He pleaded that the grounds on which the lower authority's order has been assailed arc twofold v'z. (1) There has been denial of principles of natural justice in that cross-examination of co-noticees was not allowed and (2) reliance has been placed on the retracted statements of others. He pleaded that there is nothing in law to say for the proceedings before the Departmental authorities the right of cross-examination of witnesses was an inalienable right and any denial of cross-examination would vitiate the order passed in adjudication. He pleaded that the applicants sought for the cross-examination of the co-noticees whose statements have been relied upon in the proceedings against the applicants and submitted that right of cross-examination of these persons could not be considered as part of principles of natural justice. He pleaded that a distinction has to be made between the right of cross-examination of co-noticees and other witnesses. In the present case he pleaded that cross-examination had been denied in respect of co-noticees who had given inculpatory statements and had implicated the applicants. In this context he cited the judgement of the Hon'ble Supreme Court in the case of Kanungo & Co. v. Collector of Customs, Calcutta , para 12 1974 Dec Cen-Cus 10C (SC) : ECR C Cus 902 SC and which was followed by the Division Bench 01 the Calcutta High Court reported in 1977 Taxation Law Reporter 1754, para 3 and also in the case of Abraham v. Additional Collector of Customs reported in Kerala Law Times page 660. He also cited the judgement of the Division Bench of the Calcutta High Court . He further submitted that he is aware of the judgement of the South Regional Bench in the case reported in 1988 (70) ECC 275 wherein the Tribunal has observed that cross-examination was an inherent right as part of principles of natural justice. He pleaded that the judgements cited by him were not placed before the Tribunal when this order was passed and in that case the Departmental Representative made a concession that the said right existed. He pleaded that in view of this, the judgement of the South Regional Bench could not be pressed into service by the applicants. Elaborating further he pleaded that even in Evidence Act statements can be taken as piece of evidence and co-accused cannot be cross-examined in all cases. He pleaded that the question of admissibility of the statements and the evidentiary value of the same will have to be gone into in detail after hearing arguments in depth on the question of law and that prima facie it cannot be said that on these grounds there is any infirmity in the order of the lower authority.
13. I observe that at this interlocutory stage the scope of the enquiry is rather limited and what is to be seen is whether prima facie the lower authority's order can be taken to be not a proper one or bad in law. I have given a careful thought to the pleas made by both the sides. To appreciate the issues a brief reference to the statements recorded from the persons who have implicated the applicants is necessary. It is seen that applicants MV Khader, Mohammed and Mammutty have given inculpatory statements implicating the three applicants. Two statements were given by themone before the Customs Officers at the time when they were intercepted after the seizure of the gold and later before the DRI Officers when the applicants were in judicial custody. The substance of the two statements is more or less same and the second statements corroborate what has been stated in the first statements. The applicants have given details of their role in the smuggling of gold and how they came in contact with each one and what was the consideration and also the role played by the three applicants viz. Sridhar, Ravi and Kumar and they have given the details of preparatory work done and the role that each one of the persons was to play in regard to the gold and also given graphic details about the way the delivery of the contraband gold was to be made, the number of the Cars involved and the place where the delivery was to take place and the prior arrangements made in this regard after the gold had been landed with the connivance of the three applicants. In this background notwithstanding the retraction it cannot be said prima facie these statements are not admissible and cannot be held as voluntary in nature. Further, it is seen that recovery of the cash bills in regard to purchase of steel by Vandayar Enterprises, Chidambaram, from Car bearing No. TMG 4652, which according to applicant Ravi was the enterprise of their family for construction of Hotel-cum-Theatre prima facie links the applicants with the smuggling of the seized gold. The learned Senior Advocate Shri Govindaswaminathan for the applicants has forcefully pleaded that the statements of others who have not been allowed to be cross-examined cannot be relied upon and therefore the applicants have been prejudiced and have not been able to test the veracity of what they have stated in their statements. I observe that Shri Sundaram, the learned Senior Central Govt. Standing Counsel has cited the judgement of the Apex Court in the case of Kanungo & Co. v. Collector of Customs , which has been followed by the Calcutta High Court and the Kerala High Court wherein it has been clearly held that right of cross-examination in the administrative fora in quasi-judicial proceedings is not an absolute right and it is not enjoined upon the Departmental authorities to allow the same. There are acceptable statements evidencing the role of the persons charged. The Division Bench of the Calcutta High Court in the case reported in 1977 TLR 1754 have clearly observed in paras 3 & 4 that 'right of cross-examination is not necessarily a part of reasonable opportunity...even if the appellant's Advocate had asked for such opportunity'. The same High Court in the case of Kishanlal Agarwalla v. Collector of Land Customs has observed as under:
There is a good deal of misconception on this question of the right of cross-examination as part of natural justice. Natural justice is fast becoming the most unnatural and artificial justice and for that confusion the Courts are no less responsible than the litigants. Ordinarily the principle of natural justice is that no man shall be a judge in his own cause and that no man should be condemned unheard. This latter doctrine is known as "audi alterant partem". It is on this principle that natural justice ensures that both sides should be heard fairly and reasonably. A part of this principle is that if any reliance is placed on the evidence or record against a person then that evidence or record must be placed before him for his information, comment and criticism. That is all that is meant by the doctrine of audi alterant partem, that no party should be condemned unheard. No natural justice requires that there should be a kind of a formal cross-examination. Formal cross-examination is procedural justice. It is governed by rules of evidence. It is the creation of Courts and not a part of natural justice but of legal and statutory justice. Natural justice certainly includes that any statement of a person before it is accepted against somebody else, that somebody else should have an opportunity of meeting it whether it (sic), by way of interrogation or by way of comment does not matter. So long as the party charged has a fair and reasonable opportunity to see comment and criticise the evidence, statement or record on which the charge is being made against him the demands and the test of natural justice are satisfied. Cross-examination in that sense is not the technical cross-examination in a Court of law in the witness box....
The Courts have observed that whether in a particular case a particular party should have the right of cross-examination or not depends upon the facts and circumstances of each, case and it very largely depends upon the adjudicating authority who is not guided by the rules of evidence as such. In this background therefore, it cannot be said at this stage and on prima facie considerations that the lower authority's order is bad prima facie for the reason of denial of cross-examination. Detailed arguments will have to be heard in this context whether in the facts of this case denial of cross-examination was called for taking into consideration the totality of the evidence on record. This I am afraid cannot be allowed to be done at this interlocutory stage. I, therefore, agree with the learned Senior Central Govt. Standing Counsel that prima facie there is no infirmity in the lower authority's order so far as the three applicants are concerned viz. Sridhar, Ravi and Premkumar. In regard to Abubucker the learned Counsel for the applicant adopted the argument of the learned Senior Advocate Shri Govindaswaminathan and further argued regarding the admissibility of the statement of this applicant, which have been set out in the learned brother's order. Abubucker has given inculpatory statement and has given details which would be only known to him. As mentioned in my order above, the question is whether this statement and the statements of others who have implicated him can be considered as inadmissible in evidence will have to be gone into after detailed arguments are heard and which cannot be done at this interlocutory stage. I agree with my learned brother that prima facie there is no infirmity in the lower authority's order so far as this applicant is concerned. Taking into consideration therefore, the nature of the offence, the circumstances of the case, the value of the contraband gold involved, I order that on the applicants making pre-deposit of Rs. 2.00 lakhs (Rupees Two lakhs) each on or before 29th May 1992, the pre-deposit of the balance of penalties would stand dispensed with pending appeal. Slay of the recovery of the balance amount is also granted subject to the applicants complying with this order. In case of failure to comply with the terms of this order, appropriate orders under law will be passed.