Customs, Excise and Gold Tribunal - Tamil Nadu
Shri Deenanath Rajaram Karekar vs Collector Of Customs And Central Excise on 19 May, 1986
Equivalent citations: 1986(26)ELT135(TRI-CHENNAI)
ORDER
S. Kalyanam, Member
1. C/Stay/109/86. - This is an application for dispensing with the prior deposit of the penalty of Rs. 10,000/- imposed on the petitioner by the Collector of Customs '(Appeals), Madras by order dated 18.3.86. The learned counsel Shri Chanderkumar for the petitioner submitted that the petitioner is a poor agriculturist owning only about a few acres of land leading to hand-to-mouth existence. It was further urged that the deposit of the penalty was dispensed with by the lower appellate authority on the basis of instructions from the Department that the petitioner is not possessed of adequate property. Heard the learned Senior Departmental Representative. Taking into consideration the facts that prior deposit of the penalty was dispensed with by the lower appellate authority and also having regard to the facts that the appeal itself is to be taken up and disposed of to-day, prior deposit of the penalty is dispensed with in the circumstances, pending disposal of the appeal.
2. C.Appeal No. 151/86 and G.Appeal No. 24/86/- Since the above appeals arise out of a common order of the Deputy Collector of Customs and Central Excise, Belgaum dated 24.8.84- and relate to a single transaction of the same party, they are taken up together and disposed of by a common order.
3. The Central Excise Officers of the Preventive Unit of Nipani Division in Belgaum Collectorate, on the basis of information on 20.4.83 at about 8.30 a.m. stopped a bus coming from Bombay. The appellant herein was one of the occupants of the bus. A search of his person by the officers resulted in the recovery of five gold biscuits of foreign origin with markings "Johnson Mathey London 999.0" said to be concealed in a pocket in his underwear. Since the appellant could not offer any satisfactory. explanation for the possession of the foreign gold, the gold was seized under mahazar as per law. The appellant also gave a statement before the authorities on 20.4.83 that on 19.4.83 at about 9 O'clock a person at Bombay gave him a packet containing the gold under seizure, directing the appellant to hand it over to a person at Hubli and the appellant agreed to do it for a remuneration of Rs. 300/- and kept the packet in his underwear pocket. It is in these circumstances after further investigations, proceedings were instituted against the appellant by the authorities under the provisions of Customs Act, 1962 as well as the Gold (Control) Act, 1968 which eventually culminated in the impugned orders now appealed against. Shri Chanderkumar, the learned counsel for the appellant submitted that no statement from the appellant has been recorded in respect of the alleged offence under the provisions of the Gold (Control) Act, 1968 under Section 70 or 83 of the Gold (Control) Act and a statement recorded under the provisions of the Customs Act, 1962 cannot be construed to be a statement under the provisions of the Gold (Control) Act and made use of by the Department against the appellant. It was further urged that the statement recorded from the appellant dated 20.4.1983, though inculpatory in nature, is in the nature of extra-judicial confession which requires corroboration in law. Even if any reliance is placed inasmuch as the same was retracted by the appellant by an affidavit on 13.6.83 it cannot be acted upon without adequate corroboration. The learned counsel further contended that the entire case of the Department rested on the seizure of the gold from the person of the appellant which is challenged. It was urged that the cross-examination of the mahazar witnesses had established that the gold under seizure was not recovered from the possession of the appellant and the seizing officer being inimically disposed towards the appellant for a period of about seven years and above, no reliance can be placed on his evidence as well. Therefore, it was contended that the Department is only left with the statement of the appellant dated 20.4.83 which having been retracted cannot be acted upon without corroboration
4. The learned S.D.R. urged that the seizure of the gold from the underwear pocket of the appellant has been established by the mahazar drawn on the spot immediately after the seizure and the testimony of the seizing officer would prove and establish the same. The statement of the appellant dated 20.4.83 being inculpatory in nature, is entitled to be accepted and the retraction on 13.6.83 being belated without any explanation, should be discarded as an afterthought. The plea of enmity with the officer who effected the seizure has not even been probabilised and one Chowdhury on whose account, according to the appellant, the seizing officer was in enmity against the appellant, has not even been examined by the appellant. It was further urged that the appellant's son is in gold business being a goldsmith and in all probability the appellant was carrying the gold with him. Shri Chanderkumar, the learned counsel for the appellant who was present in Court in the pre-lunch session was not available in the post-lunch session and therefore, I did not have the benefit of hearing his reply in answer to the submissions of the learned S.D.R.
5. I have carefully considered the submissions of the parties herein. The important point that arises for determination in this case is with reference to the acceptability of the seizure as the entire case of the Department rests on seizure. The appellant herein has completely disowned not only the gold under seizure but also the seizure of the gold from his very person. The evidence disclosed that the authorities on the basis of prior information were waiting with a view to seize contraband gold. The mahazar in this case clearly establishes that the gold under seizure was recovered from the person of the appellant. The plea of the learned counsel that the statement recorded under the provisions of the Customs Act cannot be pressed into service in bringing home a charge against the appellant under the provisions of the Gold (Control) Act, is totally devoid of substance. Here is a case where the appellant has given a statement before the Superintendent of Central Excise. The statement has been recorded from the appellant in connection with the seizure of gold with foreign markings. In such a situation it does not stand to reason as to how one could argue with any justification under law that the statement recorded by a competent officer at the time of seizure of gold with foreign markings cannot be made use of either in the proceedings under the Customs Act or vice versa unless recorded under the relevant Sections of the respective enactments. The statement recorded by an officer under the provisions of the Customs Act or under the provisions of the Gold (Control) Act is admissible even if it is inculpatory in nature and confessional in character. The learned counsel, placed reliance on the ratio of the ruling of the Supreme Court reported in AIR 1964 SC 358 in the case of 'State of Uttar Pradesh v. Singhara Singh and Ors.' to substantiate his plea that the statement recorded under the provisions of the Customs Act cannot be relied upon in proceedings under the Gold (Control) Act. This ruling has absolutely no application whatsoever to the facts and circumstances of this case. The Supreme Court in the case cited by the learned counsel had to deal with a situation where a judicial magistrate not specifically empowered to record judicial confession under the provisions of Section 164 of the Criminal Procedure Code recorded it and the plea of the prosecution that even if the statement recorded by the said judicial officer was not in conformity with Section 164 of the Criminal Procedure Code as it then stood, oral evidence could be let in by the prosecution about the confession made by the accused. The Hon'ble Supreme Court repelled this contention holding that when power is given to an authority to do a certain thing in a certain way the thing must be done in that way or not at all and that the other methods of performance are necessarily forbidden. I fail to see how the ratio 'of that ruling would apply to the facts and circumstances of this case where, immediately on seizure of contraband gold the statement which is inculpatory in. nature was recorded by a competent officer namely, the Superintendent of Central Excise who effected the seizure. The plea of the learned counsel that the statement of the appellant dated 20.4.83 is in the nature of extra-judicial confession and requires corroboration is also not well-founded in law. As a proposition of law it is open to a Court of law to base a conviction exclusively on the basis of extra judicial confession if it carries conviction with a court and it is only as a measure of abundant caution or prudence depending upon the facts and circumstances of each case, Courts would be looking for corroboration of extra-judicial confession. In the instant case the statement, which is inculpatory in nature, has been recorded from the appellant immediately on seizure by the authorities on 20.4.83 and admittedly the same was not resiled from till after 13.6.83 and as very rightly contended by the learned SDR, there is absolutely no explanation forthcoming from the appellant as to why the inculpatory statement was not resiled from at an earlier point of time. The conclusion is, therefore, irresistible that this retraction is an afterthought and desperately resorted to by the appellant in a bid to extricate himself from the clutches of law. I should also not in this context that a confessional statement is in the hand of the appellant himself. In the facts and circumstances of this case having gone through the inculpatory statement of the appellant dated 20.4.83, I am convinced that the same is true and voluntary and merits acceptance. The learned counsel elaborately argued on the evidence of the mahazar witnesses in cross-examination to contend that the mahazar does not establish the recovery or seizure of the gold from the appellant. Even if the statement of the mahazar witnesses are not acceptable, and going one step ahead even if the mahazar witnesses turn hostile, time out of a number courts have held that testimony of officers who effected seizure if otherwise trustworthy can be accepted and acted upon. In the instant case the evidence of the seizing officer was vehemently assailed by the learned counsel on the ground that there has been enmity between him and the appellant for about seven years prior to seizure in connection with the seizure of metallic yarn from one K.C. Chowdhury. It is suggested that the seizing officer Mr. Poal wanted to make unlawful gain from the said K.C. Chowdhury who was the then Chairman of the Weavers' Association, Khasbaug, Belgaum and wanted the appellant to intervene in the matter to enable the seizing officer to make unlawful gain. Inspite of the fact that such a plea has been deliberately taken in the reply to the show cause notice by the appellant no suggestion has even been made in this regard, specifically highlighting these aspects when Mr. Poal was being cross-examined on behalf of the appellant. It is indeed surprising that when I put a pointed question to the learned counsel as to why no specific suggestions were even put to the seizing officer in respect of this incident of this enmity, he could not give any satisfactory explanation except merely saying that it is indirectly referred to. This theory of enmity has to be merely mentioned to be rejected as utterly incredible and totally false. Apart from it if really the seizing officer had been motivated against the appellant it passes one's comprehension as to why he should choose to wait for a period of nearly seven long years for the present incident to take place to foist a case against the appellant. The theory of enmity has been merely brought in by the appellant to extricate himself from the clutches of law. The plea of the learned S.D.R. that the appellant's son is in gold business and therefore, the appellant should have transferred the gold is not acceptable since the same is only in the nature of conjuncture or a surmise but, be that as it may, the evidence on record clearly establishes that the contraband gold under seizure was recovered from the possession of the appellant and this coupled with the inculpatory statement of appellant which I have held to be true, voluntary and acceptable would prove the charges against the appellant. Having regard to the value of the foreign gold under seizure namely Rs. 1 lakh, the penalty imposed on the appellant under the provisions of the Customs Act and the Gold (Control) Act cannot be said to be either harsh or excessive. The appeals are therefore, dismissed.