Customs, Excise and Gold Tribunal - Delhi
Harinder Pal Singh Shergill vs Commissioner Of Customs on 2 June, 2003
Equivalent citations: 2003(160)ELT358(TRI-DEL)
ORDER C.N.B. Nair, Member (T)
1. The appellant Captain Harinder Pal Singh Shergill was intercepted by Customs Officers in the departure hall at Module II, NIPT, Sahara Airport, Mumbai on 3-8-98. At the time of interception, the Captain was proceeding to take up the command of Air India's Flight A1 670, Mumbai-Trivandrum-Doha-Bahrain. His baggage had been booked and he had been cleared through Customs. The interception was pursuant to information. The personal search of the Captain led to the recovery of US $ 61,000. This consisted entirely of currency notes of US$ 100 denomination. The currency was kept in a paper packet (wrapped with brown coloured adhesive tape) inside a black belt which had been tied to the waist of the Captain, beneath his trousers. In addition to 61,000 US$ so- recovered, the Customs Officers also recovered 5,217 US$ from the Wallet of the Captain. The Customs Officers seized the currency, belt, etc., on the ground that the currency was being illegally and clandestinely exported out of India in violation of the provisions of Customs Act, 1962 and Foreign Exchange Regulation Act, 1973. In his statement dated 3-8-98 the Captain stated that he was carrying the currency on behalf of his friend Kemp Kuttie who was having a business in Bahrain and that the currency had been handed over to him by one Mr. Yakub Mohammed. The captain was arrested. After further investigation, a show cause notice dated 22/27-1-99 was issued, proposing inter alia to confiscate the seized currency, Captain's white coloured Fiat Car bearing Registration No. BLN 4518 and to impose penalty on him. The proceedings initiated by the notice led to the passing of Order-in-Original dated 23-3-2001 by the Commissioner (Customs), Chatrapati Shivaji International Airport, Bombay whereunder the foreign currency, the black belt, the Car No. BLN 4518. The black belt wallet etc. were confiscated and a penalty of Rs. 10 lakhs imposed on the Captain. The present appeal is directed against this order.
2. The contention of the appellant is that the currency in question was partly appellant's earnings as allowance from Air India for the various flying assignments he carried out during the years 1-4-94 to 31-3-99 and the amounts kept with him by friends and relatives. In support of this contention, statements showing various payments received by the appellant from Air India for the above years, affidavits from different persons confirming giving of foreign currency for safe keeping with the captain etc. have been filed.
3. It is also contended that the recovery of the currency was not from the appellants person as found in the order but was from his car which he had parked at the Airport Terminal. The submission is that the Captain brought the currency with him to the Airport and proposed to deposit it in a locker in the bank at the Airport, if his flying assignment materialized (his assignments for commanding Flight to Bahrain on 3-8-98 being provisional) and that Customs Officers detained him in the airport and recovered the currency from the car but, falsely, showed as recovered from his person. On the basis of this contention it has been submitted that there was no intention to take the currency out of the country. Another contention raised is that, in any event, no attempt at illegal export of currency had been made inasmuch as the Flight from Bombay to Trivandrum was a domestic sector flight and the question of attempt to take the currency out of the country could arise only at the time of departure from Trivandrum. Learned Counsel for the appellant submitted that, if at all, a charge of preparation to take the currency out of the country alone could arise in the facts of the case. The learned Counsel has further submitted during the hearing of the case that the cross-examination of panch witnesses S/Shri S.S. Batave, V.V. Kamlapuskar and S.K. Patil showed that the currency in question was not recovered from the person of Shri Shergill. The learned Counsel also pointed out that Captain Shergill had retracted his confessional statement dated 3-8-98 on the very next day. During the hearing of the case, grievance has also been made about the confiscation of the car and denial of option to redeem the currency on payment of fine.
4. Much case law has been cited in support of the contention that based on the retracted statement of the accused himself and a Panchnama, the facts of which have been denied by the witnesses, an accused cannot be punished.
5. The learned SDR has submitted that the contentions raised are not credible in the facts of the case. It is pointed out that since the appellant had checked his baggage to Bahrain, there could be no substance in the contention that the appellant's assignment on the flight was uncertain and the currency was proposed to be deposited in the bank locker. The ld. SDR also pointed out that the whole explanation that the currency was partly the appellants earnings spread over several years and partly amount left by family and friends cannot carry conviction. It was pointed out that it is most unlikely that a Pilot on periodic short assignments to fly abroad would store up the small amounts of foreign exchange received by him as allowances in small denomination US currency notes, convert them into 100 US $ denomination and carry the same with him for years and carry it around wherever he went. The ld. SDR also contented that it is most unlikely that friends would leave considerable amounts of foreign currency with Captain Shergill "for safekeeping". The learned SDR pointed out that the submission that there was no attempt to carry the currency out of the country cannot also find acceptance in the facts of the case. The captain was to command the flight to Bahrain, his baggage had been booked to Bahrain and he was boarding the plane at Bombay after customs clearance to proceed to Bahrain. The learned SDR submitted that it is of no relevance that the flight stopped en-route at Trivandrum. That stoppage made no difference to the Captain's own status as some one who had embarked on a foreign journey. According to him, the mode of concealment of the currency is a clear indication that detailed preparations had been made to advance intention to smuggle the currency abroad. The captain was intercepted during the attempt to take currency out of the country by boarding a foreign going aircraft. He, therefore, submitted that the impugned order was fully justified in the facts and circumstances of the case. He also pointed out that the recovery of the currency from the captain's person remains evidenced by the Panchnama and the Panchnama witnesses had not stated that the currency was not recovered from him.
6. We are afraid the facts and circumstances of this case do not provide any credibility to the explanation offered by the appellant. It is difficult to believe that a part of the amount under seizure constituted the daily allowances of the appellant over a period of five years. These allowances were small sums arising from time to time and were paid to him in small amounts to meet his expenditure during foreign trips. It is not in the realm of probability that the entire amounts were saved up and converted into higher denomination 100 US$ currencies and kept with him. It is even more difficult to believe that such a large amount of foreign exchange was being carried about everywhere the captain went. The stage at which the Captain was intercepted by the Customs also takes away from the credibility of the explanation. He had booked his baggage to Bahrain and had proceeded towards the aircraft after customs clearance. At this stage, there was no question of his going back to the car, taking out the currency and depositing it in a bank. The explanation carries no conviction as contended by the learned SDR. We also find that the panch witnesses testimony do not go to prove that the currency was not recovered from the appellant. They only have stated during cross-examination that there were many persons in the room at the time of search of the appellant and as a result they could not see the exact proceedings and the recovery of currency. They have, however, stated that the recovery of the currency was from the black belt and it was shown to them during the search itself. The following depositions may be noted in this context:
(1) Shri S.S. Batave, Asstt. Manager, Security, SIL (Q) Those items which were sealed in your presence where had they come from ?
(A) In AIU office the Customs officers took Captain inside the search room and there were many AIU officers, myself and traffic staff was available. They asked Captain to open his pant and I did not witness whether he had opened his pant or not as he was surrounded by many officers from AIU but the officer showed a black cloth belt and informed me that this belt was recovered from Captain and it was put on a table and from that belt they recovered foreign currency and other items which were mentioned in the panchnama were found in his trolley bag and one hand bag:
(2) Shri V.V. Kamlapurkar, Traffic Supervisor, AIL.
(Q) Upon panchnama having been read to you, you have said you signed on trust. Are the facts given in panchnama correct ?
(A) Somewhat correct, I cannot say word to word are correct. (Q) Then what is not correct ?
(A) With regards to the beginning of the panchnama as recorded in the panchnama as 14.45 hrs. I want to say that I reported AIU office much after 15.00 hrs. Like-wise I was not called by any customs officer as contained in the panchnama but I had reported in the AIU office upon being asked by my superior to bring one offloaded passenger along with his checked in baggage to the departure are of the 1st floor where I was working. Similarly I signed the panchnama at about 23.45 hrs. and not at 17.00 hrs as recorded in the panchnama and was thereafter available in the AIU office up to 23.50 hrs. With regards the personal search of Captain, I state that the room where the search was taken, the Captain was surrounded by AIU officers and I was standing near the door and I could not exactly see from where the US$ were taken out. However, I have seen the black cloth containing pack of US Notes but have not physically counted the notes. There were 6 bundles and I was told that they are 610 in number. I trusted the figure as told to me.
(3) Shri S.K. Patil (Q) Did you inquire the officer as to why car search was being conducted by customs staff ?
(A) Mr. Dakne told since some US$ were recovered from the said car on 3-8-98 whilst the car was parked outside the Air India Departure Hall area (Upstairs) and the same belonged to Capt. Shergill of Air India.
7. These depositions of panch witnesses Shri S.S. Batave and Shri S.K. Patil do not go against the recording in the Panchnama that the currency was recorded from the person of captain Shergill.
8. The evidence in the case only supports the allegation that the currency in question was recovered from the person of Captain Shergill. We, therefore, reject the explanation offered by the appellant.
9. We are also unable to accept the appellant's explanation that an attempt to export the currency had not taken place. The appellant was intercepted after his customs clearance and the booking of his baggage directly to Bahrain. He was ready to board the plane bound for Bahrain and was to command that flight. Proceeding to the foreign going air craft after concealing the currency on his person clearly is the stage of attempt. Therefore, violation of the Exchange Regulation in relation to prohibition of unauthorised taking oat of foreign currency remains established. The currency was, therefore, liable to confiscation and the appellant had rendered himself liable to penalty. We are also not able to accept the appellant's plea that he should have been given an opportunity to redeem the currency on payment of a fine. In the facts of the case, denial of opportunity to redeem is required to be upheld. Under Section 125 of the Customs Act, which relates to payment of fine in lieu of confiscation, option to pay fine is discretionary in cases relating to exportations of goods prohibited under the Customs Act or any other law. In the present case, the Captain was smuggling the currency abroad at the instance of somebody else. The currency did not belong to him and he had no legitimate claim to it. Refusal to exercise discretionary power in such a case is entirely in conformity with the provision of the section. We find no reason to sustain the confiscation of the appellant's car. The confiscation has been ordered on the ground that the appellant travelled to the Airport driving the car. This can hardly be considered as using the car during the attempt to smuggle the currency out of the country. Accordingly, we set aside the confiscation of the car and order its release.
10. The case involves attempt to smuggle over US$ 61000 out of India in a cleverly concealed mariner. The appellant also was deliberately misusing his privileged position as a Pilot of the national carrier to commit the offence. In such a case imposition of penalty is fully justified. However, taking into account the fact that the currency did not belong to him and he was only carrying it out of the country on behalf of another person and the appellant is only a salary earner, we reduce the quantum of penalty from Rs. 10 lakhs to Rs. 5 lakhs.
11. In the result, the impugned order is confirmed except for the relief indicated above with regard to the car and penalty.