Customs, Excise and Gold Tribunal - Delhi
Collector Of Customs vs Kewal Kishore Malhotra on 16 September, 1988
Equivalent citations: 1989(23)ECR632(TRI.-DELHI), 1989(41)ELT89(TRI-DEL)
ORDER G.P. Agarwal, Member (J)
1. This appeal is directed against the impugned adjudication order No. 50/83, dated 19-9-1983 passed by the Collector of Customs, New Delhi.
2. Factual backdrop: In pursuance of an information received from the Commissioner of Customs and Excise, Customs and Excise Headquarters, Hong Kong to the effect that the respondent having an Indian Passport on his arrival at Hong Kong on 6-1-1980 had declared 50 pcs. of silver valued at 1 lakh Hong Kong dollars to Hong Kong, Customs, the enquiries were started at Delhi by the authorities concerned and as a sequel thereof on the strength of a search warrant the residential premises of the respondent was searched and as a result thereof three containers namely (1) Normal size of V.I.P. TRAVELITE bearing the visiting card of the respondent; (2) A small check suitcase and (3) Black coloured hand bag were recovered and seized. Some other documents being relevant to and useful for the proceedings under the Customs Act, 1962 were also recovered. Statement of the respondent was also recorded wherein he admitted that he had an Indian Passport No. K 979525; that he alongwith one Indra Mal-hotra had flown to Hong Kong from New Delhi on 6-1-1980 by PANAM Flight No. PA 002; that the payment for his own and Indra Malhotra's tickets was made by him by a cheque and that both of them had reached Hong Kong on 6-1-1980 without disembarking at any place on the way. He further voluntarily confessed that he had illegally acquired, purchased, possessed 200 Hong Kong dollars and 200 US dollars in India and had taken out the same illegally with him and that during his previous trip to Hong Kong he had in the same manner illegally acquired 450 US dollars out of India and have taken out the same with him. Statement of the said Shri Indra Malhotra was also recorded in which he stated that he had flown for Hong Kong on 6-1-1980 from Palam Airport, New Delhi by PANAM Flight No. PA 002. After usual investigation the department formed a tentative view that the respondent and the said Shri Indra Malhotra illegally exported 50 slabs of silver valued at Rs. 1,67,000/- out of India as part of their baggage and that the respondent also illegally acquired, possession by purchasing US dollars 450 in India illegally and took out of India in violation of the provisions of FERA, 1973 and further that he also illegally acquired, possession by purchasing US 200 dollars in India which he took out from India alongwith Hong Kong dollars 200. Consequently the respondent and the said Indra Malhotra were called upon to show cause as to why the seized three containers be not confiscated. They were also called upon to show cause as to why the penal action be not taken in respect of the aforesaid illegal exportation of silver and foreign exchange mentioned above. In their reply the respondent as well as the said Shri Indra Malhotra adjured their guilt. After the usual adjudication proceedings, the Collector of Customs, New Delhi exonerated the said Shri Indra Malhotra of the charges lavelled against him. Likewise he also exonerated the respondent of the charge of illegal export of silver levelled against him giving benefit of doubt to him. Further on the basis on his admission, the Collector of Customs, New Delhi imposed a personal penalty of Rs. 5,000/- upon the respondent under Section 114 of Customs Act, 1962 for contravening the provisions of Section 13(2) of the Foreign Exchange Regulation Act, 1973 read with Section 11 of the Customs Act, 1962. The respondent has not filed any appeal against the imposition of personal penalty for contravention of the provisions of the FERA, 1973. Hence that part of the order has become final. However the appellant, has filed the instant appeal against that part of the impugned order passed by the Collector of Customs, New Delhi whereby he had exonerated the respondent of the charge of illegal export of silver.
3. Arguing for the appellant, Smt. Nisha Chaturvedi, SDR drew our attention to the impugned order to show that the Adjudication Authority had exonerated the respondent of the charge of the smuggling of silver out of India on the grounds that: -
(1) the only evidence adduced by the Department on the charge of smuggling of silver out of India is a letter dated 14-5-1980 written by the Trade and Industrial Commerce Department, Customs and Central Hqrs. Hong Kong. But in the absence of any corroborative evidence the said document cannot be considered as a conclusive proof showing the involvement of the respondent in the illegal export of silver, and that (2) the testimony of the Airlines that the respondent did not pay any extra freight also contributes to strengthen the defence plea.
4. After drawing our intention as aforesaid, she submitted that the aforesaid letter dated 14-5-1980 received from Hong Kong clearly mentioned that one Shri K.K. Malhotra, respondent herein, on arrival at Hong Kong Airport on 6-1-1980 from India had declared 50 pcs. of silver valued at Rs. 1 lakh Hong Kong dollars to the Customs Authorities at Hong Kong. Since submitted the learned SDR, the respondent had admitted in his statement that he had flown to Hong Kong from Palam Airport, New Delhi and reached there on 6-1-1980 without disembarking at any place on the way there remains no doubt that respondent must have carried 50 pcs. of silver from India and declared as such at Hong Kong. She further submitted that the testimony of the Airlines that the respondent did not pay any extra freight is of no consequence in the fact and circumstances of the case. For, as per his own statement, the respondent had travelled alongwith Shri Indra Malhotra and the payment of both the tickets was made by him. Elaborating further, she submitted that since every passenger have a free allowance of 30 kg, it is possible that the weight of the silver which considering the prevailing price of silver in Hong Kong at that time, may be around 17 to 20 kg and the total luggage of both the passengers, maybe within the free allowance available to them. On this premises she submitted that the charge of smuggling of silver out of India should have been held proved since the strict provisions of the Indian Evidence Act are not applicable to the adjudication proceedings.
5. In reply Shri Harbans Singh, learned Counsel for the respondent while supporting the impugned part of the order passed by the Collector of Customs, New Delhi submitted that the very letter dated 14-5-1980 said to have been written by the Commissioner of Customs and Excise, Hong Kong, to the Counsellor, Commission of India, Hong Kong on the basis of which the investigation was started in India and which is now heavily relied upon by the appellant was never supplied to the respondent with the show cause notice issued to the respondent and what was supplied was the extract of the aforesaid letter dated 14-5-1980 and that too after the service of the show cause notice upon the respondent. Even the said extract did not include the name of the respondent. He further submitted that all these facts were pointed out to the adjudicating authority at the time of personal hearing and it is only thereafter that the adjudicating authority directed that the full extract of letter dated 14-5-1980 be given to the respondent. He also submitted that the said letter dated 14-5-1980 written by Trade Industry and Customs Department, Customs and Excise Headquarters, Hong Kong cannot be taken as evidence for the reason that opportunity to cross-examine the person who had signed the aforesaid letter dated 14-5-1980 was denied to the respondent during the adjudication proceedings. He further submitted that the statement made in the said letter also cannot be tendered in evidence under Section 138B of the Customs Act, 1962 because it was not a statement made and signed by a person before any Gazetted Officer of Customs and that the said letter was not tendered in any prosecution for an offence in the court of law. For the similar reason submitted the counsel, no presumption regarding the truth of the contents of the said letter can be drawn in favour of the department in terms of Section 139 of the Customs Act, 1962. Alternatively he submitted that at the worst the contents of the said letter may constitute a circumstantial evidence against the respondent and therefore in the absence of any corroborative evidence it cannot be conclusively held that the respondent exported the silver from India to Hong Kong. He also submitted that the testimony of the Airlines that the respondent did not pay any extra freight also probabilise the defence of the respondent.
6. Before we proceed to appreciate the evidence on record in the light of the arguments advanced by the parties it would be convenient to dispose of the legal submissions made by the parties. The contention of the learned counsel for the respondent that the extract of letter dated 14-5-1980 issued by the Trade Industry and Customs Department, Customs and Excise Headquarters, Hong Kong were not supplied to the respondent alongwith the show cause notice and that the extract supplied to the respondent subsequent to the issuance of the show cause notice did not include the name of the respondent, loses its significance in the instant case because it is admitted to the respondent that when the attention of the adjudicating authority was invited at the time of personal hearing, the complete copy of the said letter was supplied to the respondent and the respondent did submit his defence after receiving the same during the adjudication proceedings. The other contention of the learned counsel for the respondent that the said letter is not relevant and cannot be tendered in evidence in view of Section 138B of the Customs Act cannot be accepted. Firstly, because the said letter is not a statement but contains the extract of the record maintained by the Customs and Excise Department, Hong Kong and secondly because it is also relevant in departmental proceedings in view of Sub-section (2) of Section 138B, ibid, itself. Sub-section (2) of Section 138B lays down that "the provisions of Sub-section (1) shall, so far as may be, apply in relation to any proceeding under this Act, other than a proceeding before a court, as they apply in relation to a proceeding before a court". As regards the contention that under Section 139 no presumption is attached to the truth of its (letter) contents it would suffice to say that Clause (a) of Sub-section (1) of Section 138B itself, inter alia, provides that such statement shall be relevant, for the purpose of proving the truth of the facts which it contains when the presence of the person who made the statement cannot be obtained without any amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable [in the instant case the adjudicating authority in view of Sub-section (2) of Section 138B]. In the instant case the adjudicating authority had recorded in the impugned order that "it could not be possible for the department to produce the person who had signed the letter dated 14-5-1980 on behalf of the Customs and Central Excise, Hong Kong for the reason that apart from the expenses involved it might have other repercussions". Even assuming that the said letter dated 14-5-1980 cannot be tendered in evidence under Section 138B of the Customs Act because it was not a statement made and signed by person before any Gazetted Officer of Customs during the course of any inquiry of proceeding under the Customs Act and that Section 139 of the Customs Act is also not available because the said letter was not tendered by the prosecution in evidence in the court, the said letter, in our considered opinion, is admissible in evidence. For the purpose of appreciating the contention raised by the parties it would be advantageous to reproduce the said letter which runs thus -
"(SEAL) Our Ref: CECR/H/COOP/3 Trade Industry and Customs Deptt.
Customs and Excise Hqrs., 2, Bumsey Street, 10th Floor, Central District, Hong Kong.
Your Ref: 14 May 1980. 5-456182 Ext. 261 Mr. B.C. Rastogi, Counsellor Commission of India 303 ATA Building 1 Stubbs Road Hong Kong. Dear Mr. Rastogi,
Further to your request verbally given on 7th May, 1980 regarding information on silver smuggling by Indian nationals, I have referred to the records which reproduced as follows :-
____________________________________________________________________ Date Goods Value Name, Age Nationality Flight From Sex & P.P. No. ____________________________________________________________________ 25-11-1979 Silver HK$15,000 Dina Nath Indian P/PK TG602BKK blocks Anand M/35 074586 90 pcs.
9-1-1980 Silver HK $100,000 Mohd. Zaki Indian P/PN PA 002 DEL blocks M/32 582904 50kgs.
6-1-1980 Silver HK $100,000 Kanwal K. Indian P/PK PA002BKK
blocks Malhotra 979525
50pcs. M/23
____________________________________________________________________ I trust this information is of useful to assist in your investigation. ; Best regards, Yours sincerely, Sd/-
(K.L. Mak) for Commissioner of Customs & Excise."
7. From a plain reading of the said letter it would appear that on a request from the then Counsellor, Commission of India, Hong Kong, Commissioner of Customs and Excise, Trade Industry and Customs Department, Customs and Excise Headquarters, Hong Kong after referring to their record reproduced the entries appearing in their records. In other words they furnished the extract of the entries appearing in their official records maintained by their department certifying that they "have referred to the records which reproduced as follows". In that letter the Customs and Excise Authorities of Hong Kong have certified that the respondent Kanwal K. Malhotra, male, aged 23 years, holder of Indian Passport K 979525 landed in Hong Kong by flight PA 002 BKK on 6-1-1980 with silver blocks 50 pieces. Thus, apart from the fact that it is settled law that strict provisions of Evidence Act, 1872 are not applicable to the departmental proceedings, [See AIR 1974 SC 859] we are of the view that the said letter dated 14-5-1980 containing the extract of the entries in the official records maintained by the Customs and Excise Department, Hong Kong and made by a public servant in the discharge of his official duty is itself a relevant fact and can be proved as such. The fact that such a record is a 'public document' cannot be disputed in view of Section 74(1) (iii) of the Evidence Act. The said Section expressly lays down that documents forming the acts or records of the acts of public officers and executive of a foreign country are public documents and according to Section 35 of the Evidence Act, such entry is itself a relevant fact. The said Section reads as follows : -
"35. Relevancy of entry in public record made in performance of duty. - An entry in any public or other official book, register, or record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register or record is kept, is itself a relevant fact."
8. On a plain reading of the said Section 35 it is clear that it covers public documents of Native States or foreign countries (See Maharaj Bhanudas v. Krishnabai, AIR 1927 Bom. 11). Likewise extracts from public documents are admissible under this Section (S. 35). For this proposition support can be had from the judgment rendered by the Allahabad High Court in the case of Municipal Board Aligarh v. MumtazKhan, AIR 1948 Allahabad 309 wherein it was held that registers maintained by public bodies were public documents and extracts from these documents were admissible in evidence under Section 35 of the Evidence Act. The Allahabad High Court reiterated the same view in Han Lai v.Amrik Singh'AIR 1978 Allahabad 292. Recently the Supreme Court in the case olKanwarLal Gupta v.AmarNath, AIR 1975 SC 308 held that even the Chart furnished by the Police giving sufficient information as to the dates and places of the public meetings held in connection with the election and the names of the speakers who spoke at those public meetings is admissible under Section 35 of the Evidence Act and could be treated as a piece of evidence with probative value. For such Chart was obviously prepared from the official record maintained by the Police. More recently the Hon'ble Supreme Court in Harpal Singh v. State ofHimachal Pradesh, AIR 1981 SC 361 has further held that such entry (Entry in birth register in that case) being made by the concerned official in the discharge of his official duties is clearly admissible under Section 35 of the Evidence Act and that it is not necessary for the prosecution to examine its author.
9. Now turning to the peculiar facts and circumstances of the instant case, we are of the opinion, that the entry made in the official records of the Excise and Customs Department, Hong Kong (as reproduced in their letter dated 14-5-1980) are relevant facts from which proper inference of liability on the part of the respondent can be drawn. It is significant to note that the respondent admits all the particulars of the said entry except a part of it relating to the export of silver blocks. To wit, the said entry speaks of the details/particulars of the person landed in Hong Kong on 6-1-1980. The details and particulars are as follows : -
(1) Date : 6-1-1980 (2) Goods : Silver blocks 50 pcs. (3) Value : HK$ 1,00,000/- (4) Name, age, sex : Kanwar K. Malhotra, M/23 (5) Nationality & P.P. No. : Indian P/P K 979525 (6) Flight from : PA 002 BKK
10. All the aforesaid details/particulars appearing in the said entry are admitted to the respondent except the details of the goods and its value mentioned in Column Nos. 2 and 3. On the point of clarity it is repeated that it is admitted to the respondent that he is an Indian national and landed on 6-1-1980 by flight No. PA 002 BKK and that he is a male of 23 years of age and holds Indian Passport No. K 979525 as detailed out in the said entry. Thus mere denial of export of 50 pcs. of silver blocks by the respondent cannot be accepted. In the case of Ghulam Rasul v. Secy, of State, AIR 1925 P.C. 170 it was pointed out that -
"Statements in public documents are receivable to prove the facts stated on the general grounds that they were made by the authorised agents of the public in the course of official duty and respecting facts which were of public interest or required to be recorded for the benefit of the community. In many cases, indeed, in nearly all cases, after a lapse of years it would be impossible to give evidence that the statements contained in such documents were in fact true, and it is for this reason that such an exception is made to the rule of hearsay evidence."
11. Following the aforesaid observations made by the Privy Council in the case of Ghulam Rasul v. Secy, of State, supra, a Division Bench of Jammu & Kashmir High Court in the case of Ghulam Ahmad v. Govt. ofJ & K, AIR 1960 J & K136 held that such entries can well fall within Section 35 of the Evidence Act and are, therefore, relevant facts from which proper inference of liability on the part of the defendant can be drawn. It further held that -
"A presumption that official acts have been regularly performed and that common course of business has been followed is also available to the plaintiff under S. 114 of the Evidence Act. This presumption can serve to strengthen the acceptability and reliability of the entries in Ex. Al."
12. The Privy Council in the case reported in (1854-57) 6 Moo IndApp 232 observed that it would be very unsafe if documents of public nature and taking place in the regular course, could be treated, on mere suspicion, as having no weight at all. In the instant case there is no iota of evidence even to suspect the said entry. Thus taking into consideration the facts and circumstances of the case and the admission of the respondent that he is an Indian National and male of 23 years of age and landed on 6-1-1980 by Flight No. PA 002 BKK in Hong Kong under Passport No. K 979525 as recorded in the said entry we are satisfied that the respondent illegally exported 50 pcs. of silver blocks out of India to Hong Kong when he flew to Hong Kong and landed on 6-1-1980 as shown in the above entry and no further corroborative evidence is required to prove the charge against him. A false and bare denial by the respondent without anything more that he did not export the silver illegally also lends assurance to our conclusion that the respondent had illegally exported the silver. Such a false denial could be relied upon by the Custom authorities as a circumstance against the respondent cannot be disputed in view of the decision rendered by the Hon'ble Supreme Court in the case of Kanungo & Co. v. Collector of Customs, 1983 ELT 1486, wherein it was held that "It cannot be disputed that a false denial could be relied on by the Customs Authorities for the purpose of coming to the conclusion that the goods had been illegally imported". Therefore the findings of the learned adjudicating authority that in the absence of corroborative evidence the entries appearing in the record of the Customs Department, Hong Kong are not sufficient to prove the charge and that he is entitled to benefit of doubt cannot be sustained.
13. Yet there is also another aspect of the case. So far as the question of corroboration is concerned it is settled law that corroboration is not a rule of law but a rule of prudence. Corroboration is nothing but an evidence which confirms or supports or strengthens other evidence. In short it is an evidence which renders other evidence more probable. Such corroboration need not be direct testimony; it may be obtained from the conduct of the parties and the surrounding circumstances. As stated above strict provisions of the Evidence Act do not apply to the departmental proceedings conducted under the provisions of the Customs Act, 1962. As back as in 1974 the Hon'ble Supreme Court in the case of Collector of Customs, Madras v. D. Bhoormull, AIR 1974 SC 859 held that large scale smuggling of gold or other goods into India may pose a threat to the economic and fiscal interests and policies of the State. Such illicit trade is often carried on by organized international smugglers in the secrecy of the under-world. The more it is organized, the less are the chances of its detection and greater the difficulty of proving the offences relating thereto. Laws have therefore been enacted in most countries which mark a partial or wholesale departure in matters relating to smuggling, from the general principle of criminal law, viz., that it is for the State or its Department to prove the offence against the accused or the defendant. And in respect of smuggled goods the provisions of the Evidence Act and the Code of Criminal Procedure, do not, in terms, govern the onus of proof in proceedings under the Customs Act. It further held that in confiscation proceedings under the Customs Act the department is not required to prove its case with mathematical precision to a demonstrable degree; for, in all human affairs absolute certainty is a myth. The law does not require the prosecution to prove the impossible; all that it requires is the establishment of such a degree of probability that a prudent man may, on its basis, believe in the existence of the fact in issue. Thus legal proof is not necessarily a perfect proof; often it is nothing more than a prudent man's estimate as to the probability of the case. Further as regards cor-roboration it may also be made clear that one should not confuse with the provisions of Section 34 of the Evidence Act which provides that "entries in books of account, regularly kept in the course of business, are relevant whenever they referred to a matter into which the court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability". (Emphasis supplied), while dealing with the relevancy and the probative value of an entry in any public or other official book, register or record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the Country in which such book, register or record is kept under Section 35 of the Evidence Act. For, Section 34 of the Evidence Act refers only to the entries in the books of account of the plaintiff and provides that the entries made by the plaintiff in his books of account which are of self-serving admission, would not alone be sufficient to charge a defendant with liability unless there is other corroborative evidence. Whereas Section 35 of the Evidence Act speaks of an entirely different situation and provides that an entry in the public documents stating a fact in issue or relevant fact and made by a public servant in the discharge of his official duty etc. would be by itself a relevant fact. Here it is significant to note the difference between the two. Section 34 of the Evidence Act and its illustration expressly states that the entries in the account books of the plaintiff shall not alone be sufficient evidence to charge any person with liability, whereas under Section 35 an entry in public record made in performance of official duty is by itself a relevant fact. In other words Section 34 lays down that such entries though relevant are not alone sufficient, without other evidence, to prove the debt. Whereas in Section 35 no such rider either in the body of the Section or by way of anillustration to it has been put by the Legislature. Thus, it is clear that in the instant case the necessity of corroboration to the entry made in the record of the Customs and Excise Department, Hong Kong does not arise because here the entry made in the records of the Customs and Excise Department, Hong Kong on which the Customs Authorities in India has relied are not those maintained by themselves, but they are the records of an entirely different institution, namely Customs and Excise Department, Hong Kong. And consequently neither the illustration to Section 34 nor the arguments that self-serving admissions without more cannot be the sufficient basis to charge a defendant with liability can strictly speaking made applicable to the instant case. In the case of Ghulam Ahmad v. Govt. of] & K, supra the question was as to whether the entries in Ledger account of High Commissioner for India in London are relevant facts and if so, whether from such entries an inference of liability of defendant can be drawn. Answering the question the Division Bench held that the entries in Ledger account of High Commissioner for India in London are relevant facts and from such entry proper inference of liability on the part of defendant can be drawn. Apart from such presumption which can be inferred for fastening the liability on the defendant, the Division Bench further held that if at all any corroboration is required then the circumstances surrounding the existence of the books of account and the circumstances surrounding the transaction which is recorded in the books of account may well constitute sufficient corroborative material, and for this proposition relied upon the case of Kallu Mal v. Bhawani Das, AIR 1945 All. 742. Thus even assuming that in the instant case some corroboration is required to corroborate the entries made in the official record of the Customs and Excise Department, Hong Kong, we find that the surrounding circumstances under which the entries were made in the official record of the Customs and Excise Department, Hong Kong and the circumstances surrounding the transaction which were recorded in the said official record of the Customs and Excise Department, Hong Kong can well constitute sufficient corroborative material. Such circumstances to name the few are -
(1) that at the relevant time import of silver was not prohibited in Hong Kong;
(2) that the respondent did arrive in Hong Kong on 6-1-1980 from New Delhi by Flight No. PA 002 BKK as entered in the record of Customs and Excise Hqrs, Hong Kong;
(3) that on arrival the respondent declared his name as Kanwal K. Malhotra of 23 years of age and showed his Indian Passport No. K-979525 as per entry in question;
(4) that all the particulars shown in the entry in question are admitted to the respondent except that the declaration regarding the bringing of Silver Blocks 50 pcs. of Hong Kong dollar 1 lakh value;
(5) that it is not the case of the respondent that the official authority of Customs and Central Excise Hqrs. Hong Kong were inimical to him or that the entries were made by the officials to implicate him falsely; and (6) that the respondent had not expressly challenged the truthfulness of the said entry or the particulars given therein except a bare denial that he did not illegally exported the Silver to Hong Kong out of India.
14. It is also relevant to note that the incident relates to 6-1-1980 and immediately thereafter on 15th April, 1980 the residential premises of the respondent was raided in connection with the present offence, i.e. to say regarding illegal export of silver to Hong Kong and that at the time of recording the statement of the respondent on 15-4-1980 itself, it was put to him as to whether at the time of landing in Hong Kong on 6-1-1980 he declared before the Customs and Excise Hqrs., Hong Kong that he had brought silver blocks 50 pcs. with him. In the show cause notice dated 9-10-1980 the appellant was made aware of the said entry but he never made any complaint either to the Customs and Excise Hqrs., Hong Kong or to the Government of Hong Kong or to their diplomatic representative in India that at the time of arrival on 6-1-1980 in Hong Kong he never declared that he had brought silver blocks 50 pcs. alongwith him to the Customs and Excise Authorities. In fact he never challenged the said entry or its particulars i.e. to say bringing of silver blocks 50 pcs. On the contrary during the interrogation of the respondent at the time of raid of his residential premises on 15-4-1980 to a question as to whether he declared 50 pcs. of silver valued at Hong Kong dollar 1 lakh before the Hong Kong Customs Authorities on 6-1-1980, he conveniently evaded the answer by stating that somebody has wrongly given his name before the Hong Kong Customs House. For ready reference the question and answer may be reproduced as below: -
"Q. I put it to you that you declare 50 pcs. of silver valued at HK $ 1,00,000.00 before the Hong Kong Customs on 6-1-1980.
Ans. I have not declared any silver (50 pcs.) in Hong Kong valued at HK $ 1,00,000.00. Somebody has wrongly given my name before Hong Kong Customs House."
15. It is significant to note that he had not even alleged any enmity with any other person to support his contention that somebody had erroneously given his name before the Hong Kong Customs House. Here his admission about the correctness of all other details/particulars made in said entry assumes importance and belies his plea that somebody had erroneously given his name before the Hong Kong Customs House. It is a matter of experience that when some declaration is made by the incoming passenger his documents particularly passport is also checked and it is only after verifying the passport entries are made in the official record. It was not the case of the respondent that he lost his passport or somebody had stolen it or that he gave it to somebody at the time of landing in Hong Kong on 6-1-1980. Thus the aforesaid evasive denial that somebody had erroneously given his name before Hong Kong Customs House is a pretext. It is further interesting to note that the said defence that respondent had not declared any silver (50 pcs.) in Hong Kong on 6-1-1980 and somebody had erroneously given his name before the Hong Kong Customs House was never pursued during the adjudication proceedings nor before us. Thus this false denial is itself a circumstance to lend credibility to the said entry made in the official record of the Customs and Excise Authorities, Hong Kong in their record and inference can be drawn against the respondent. This fake denial could also be relied upon for the purpose of coming to the conclusion that the respondent had illegally exported the silver to Hong Kong in view of the observations made by the Hon'ble Supreme Court in the case of Kanungu & Co. v. Collector of Customs, 1983 ELT 1486 wherein it was held that "it cannot be disputed that a false denial could be relied on by the Customs Authorities for the purpose of coming to the conclusion that the goods had been illegally imported."
16. There is also another aspect of the case. The entry in question squarely falls under Section 35 of the Evidence Act and the presumption that official acts have been regularly performed and that common course of business has been followed is also available to the department under Section 114 of the Evidence Act. This presumption can serve to strengthen the acceptability and the reliability of the said entry made in the official record of the Customs and Excise Department, Hong Kong. Since the said entries are relevant facts under Section 35 of the Evidence Act, proper inference of liability on the part of the respondent can also be drawn as held by the Division Bench of the J & K High Court in Ghulam Ahmad v. Government ofJ & K, supra. The Allahabad High Court has also taken the similar view in the case of Rajdei v. Lautan, AIR 1980 All. 109. In that case extracts of Kutumb Register and Electoral Roll were produced in the evidence. Repelling the argument that the said extracts were not admissible and no presumption is attached to their correctness under Section 114 of the Evidence Act it was held that it cannot be said that the said extracts were inadmissible in evidence. There is a presumption about their correctness until the same is displaced by good evidence. In the instant case we have no hesitation in holding that the said presumption about the correctness of the entry in question is not displaced by any good evidence by the respondent.
17. The circumstance that the Airlines had certified that the respondent did not pay any extra freight is also in our view, of no consequence in the facts and circumstances of the case. For appreciating the same the said certificate of Airlines may be reproduced which runs thus - "PANAM Pan American World Airways Delhi Airport New Delhi April 18,1980 TO WHOM IT MAY CONCERN This is to certify that Mr. K.K. Malhotra alongwith another Malhotra have travelled on Pan Am 002 flight of 6th January, 1980 to Hong Kong. They were allotted seats 20A and 20B respectively. As per our records, they have not paid any excess baggage charges.
Sd/-
S. Ralu Manager-Passenger Services."
From a reading of the said certificate it is clear that what was certified was that the respondent alongwith another Malhotra had travelled on 6-1-1980 to Hong Kong and as per records they have not paid any excess baggage charges. From this certificate it cannot be inferred that the respondent did not illegally exported the silver. The respondent and his companion may not have paid any excess baggage charges due to various reasons. May be that the baggage might be within the permissible limit of free allowance. It may also be stated that it is admitted to the respondent and would also appear from the aforesaid certificate of Airlines that the respondent travelled alongwith another Malhotra (Indra Malhotra) who is admittedly related to him and that the payment for both the tickets was made by the respondent and since every passenger had a free allowance of 30 kgs. at the relevant time it may be possible as contended by the SDR that the total baggage of both the passenger, i.e. to say the respondent and the said Indra Malhotra may be within the free allowance available to them. Moreover the fact that the respondent did not pay any excess baggage charges is also of no relevance because the charge against the respondent was that he imported 50 pcs. of silver to Hong Kong. What was the weight of the exported silver was not in question. It is also significant to note that as per the entry made in the official record of the Customs and Excise Department Hong Kong the respondent also did not declare the weight of the illegally exported silver. Under these circumstances the question as to whether the respondent paid any excess baggage charges or not pales into insignificance. Moreover it is a negative circumstance which cannot belie the departmental case against the respondent.
18. Before we part, we would like to state that the Collector of Customs, who had adjudicated the case had not found the entry made in the official record of the Customs and Excise Department of Hong Kong as unreliable or false. What has been stated by him is that in the absence of any corroborative evidence the said document, i.e. to say letter dated 14-5-1980 containing the said extract of the said entry cannot be considered as a conclusive proof showing the involvement of the respondent in the illegal export of silver. Further he had also observed that the testimony of the Airlines that the respondent did not pay any extra freight also contributes to strengthen the defence plea. After observing so he gave the benefit of doubt to the respondent. In our opinion the question of giving any benefit of doubt does not arise. Firstly because no corroborative evidence was required as stated by us earlier and secondly because even any corroborative evidence was required it was already on record as pointed out above, but instead of analysing the evidence on record and the circumstances appearing against the respondent the Collector inclined to give the benefit of doubt. This approach of the learned Adjudicating Authority is wrong. In the case of H.P. Administration v. Om Prakash, AIR 1972 SC 975, the Hon'ble Supreme Court had held as follows -
"6...The mere fact that there is only a remote possibility in favour of the accused is itself sufficient to establish the case beyond reasonable doubt."
It further held as follows -
"The benefit of doubt to which the accused is entitled is reasonable doubt - the doubt which rational thinking men will reasonably, honestly and conscientiously entertain and not the doubt of a timid mind which fights shy - though unwittingly it may be - or is afraid of the logical consequences, if that benefit was not given or as one great Judge said it is 'not the doubt of a vacillating mind that has not the moral courage to decide but shelters itself in a vain and idle scepticism'. It does not mean that the evidence must be so strong as to exclude even a remote possibility that the accused could not have committed the offence. If that were so the law would fail to protect society as in no case can such a possibility be excluded. It will give room for fanciful conjectures or untenable doubts and will result in deflecting the course of justice if not thwarting it altogether."
The Supreme Court in the case of 5.5. Bobade v. State of Maharashtra, AIR 1973 SC 2622 further explained that proof beyond reasonable doubt cannot be distorted into a doctrine of acquittal when any delicate or remote doubt flits past a feeble mind. The Supreme Court further reiterated the same view in the case oiDharam Dass v. State of U.P., AIR 1975 SC 241 by stating that "the rule of benefit of reasonable doubt does nol imply a frail willow bending into every whiff of hesitancy. Judges are made of sternei stuff and must take a practical view of legitimate inferences showing from evidence, cir cumstantial or direct".
In the facts and circumstances of the case as discussed above we are satisfied tha the department has succeeded in proving its case beyond any reasonable doubt and no doubt much less a reasonable doubt arises regarding the guilt of the respondent.
19. In the result we allow the appeal and set aside the Order of the Collector exonerating the respondent with respect to the charge of illegally exporting silver to Hong Kong and hold that the respondent had illegally exported 50 pcs. of contraband silver out of India to Hong Kong without declaring to the proper Customs Officer as required under Section 77 of the Customs Act, 1962 and in contravention of Clause 3(1) of the Exports (Control) Order, 1977 issued under Section 3 of the Imports and Exports (Control) Act, 1947 (as amended) read with Section 3(2) of the Imports and Exports (Control) Act, 1947 and Section 11 of the Customs Act, 1964. The said contravention is punishable under Section 114 of the Customs Act. Clause (i) of Section 114 provides for the imposition of penalty not exceeding 5 times of the value of the goods or Rs. 1,000/-, whichever is the greater. In the instant case the value of the illegally exported silver was found to be Rs. 1,67,000.00. Thus taking into consideration the facts and circumstances of the case and the value of the goods coupled with the fact that economic offences like smuggling shake and wreck the entire national economy we impose a penalty of Rs. 2,00,000.00 (Rupees Two Lakhs only) upon the respondent.