Customs, Excise and Gold Tribunal - Tamil Nadu
P. Pratap Rao Sait vs Collector Of Customs on 8 October, 1987
Equivalent citations: 1988(15)ECC183, 1988ECR485(TRI.-CHENNAI), 1988(33)ELT433(TRI-CHENNAI)
ORDER S. Kalyanam, Member (J)
1. The above appeals arise out of the common impugned order of the Collector of Customs, Cochin dated 3-11-1986 under which he has imposed a penalty of Rs. 50,000/-on the appellant under the provisions of the Customs Act, 1962 and the Gold (Control) Act, 1968.
2. On the basis of prior intelligence the Superintendent of Central Excise, Headquarters, Cochin, along with his officers visisted Dwaraka Hotel at Cochin on 2-5-1984. One Venilal Mehta was staying along with his daughter Miss. Pregna Mehta in room No. 316. The authorities recovered from their possession 60 gold biscuits of foreign origin. The authorities effected seizure of the same under a mahazar as per law. The said Venilal Mehta gave statements before the authorities that the contraband gold biscuits under seizure were brought from Bombay by his daughter at his instance and were intended to be delivered over to the appellant. Venilal Mehta further stated that on previous occasions he had transported contraband gold through his daughter and delivered them over to the appellant and has received consideration for the same. Venilal Mehta's daughter Miss. Pregna Mehta also gave statement before the authorities corroborating her father's version. Further investigations also revealed the connection of the appellant with the contraband gold in question and also the involvement of the appellant in prior transactions of contraband gold. It is in these circumstances, after further investigations, the authorities instituted proceedings against the appellant and others which resulted in the present impugned order now appealed against.
3. Shri Suganchand Jain, the learned counsel for the appellant, submitted that three statements have been recorded viz. on 2-5-1984, 3-5-1984 and 4-5-1984 from Venilal Mehta and even though these statements are inculpatory in nature implicating the appellant as the intended consignee and also the connection between the appellant and Venilal Mehta in respect of similar contraband gold on previous occasions, the statements do not have any evidenciary value in law since Venilal Mehta retracted the same even from jail on 6-5-1984. It was urged that even if retracted statements could be relied upon there must be substantial corroboration as per the ratio of the Division Bench ruling of the Madras High Court in Writ Appeal No. 454 of 1978 in the case of R.S. Kalyana-raman v. The Collector of Customs, Madras and Anr.. It was further urged that the appellant specifically asked for cross-examination of the officer who recorded the statements from Venilal Mehta and others and this opportunity was denied to him with the result the impugned order is vitiated for non-observance of the principles of natural justice. The learned counsel further submitted that the Collector of Customs has o authority in law to penalise a person under two enactments in respect of a single transaction. The learned counsel also urged that the criminal prosecution launched against the appellant on a charge of abetment ended in acquittal and, therefore, the impugned order is not sustainable in law.
4. Shri Krishnan, the learned D.R., submitted that the statements of Venilal Mehta and his daughter Miss Pregna Mehta are clearly inculpatory in nature implicating the appellant and connecting him as an abettor with the contraband gold biscuits under seizure. The learned D.R. further urged that though the statements were retracted there is no averment in the retraction that the said Venilal Mehta and his daughter were not in possession of the contraband gold. The learned D.R.. further urged that there is adequate corroboration in evidence for the retracted statement of Venilal Mehta and his daughter and drew our attention to the statements of Prakash Krishna Yadav; Suresh Mahadev, younger brother of appellant; statement of one Suresh, the receptionist at the Hotel Blue Diamond, besides documentary evidence such as telephone numbers of the appellant in the possession of Venilal Mehta. The learned D.R. also referred to the evidence on record indicating the telephonic contact between the appellant and Venilal Mehta.
5. We have carefully considered the submissions made before us. The fact that a very substantial quantity of gold biscuits of foreign origin was recovered from the possession of the said Venilal Mehta and his daughter on the said date from a hotel room at Cochin is not disputed and is not disputable either. It is also not disputed by the learned counsel for the appellant that the statements of Venilal Mehta and his daughter do bring out a close relationship or connection between the appellant and Venilal Mehta and also with reference to the prior connections of the appellant with contraband gold brought by the said Venilal Mehta and his daughter. But the only plea that is urged was that the statements of Venilal Mehta and his daughter were brought about under circumstances of threat, coercion and undue influence and were retracted even from jail on 6-5-1984 and, therefore, are not entitled to credence. We have carefully gone through the statements recorded from Venilal Mehta and his daughter. The statements do contain a very graphic and comprehensive details as to how Venilal Mehta was transporting contraband gold on a number of occasions in the past and selling them to the appellant and others. The statements contain factual details to such an extent that it would not be correct to hold that they could have been the figment of the officers' imagination. On going through the statements we are satisfied that they are voluntary and true and merit acceptance. The next question that arises for our consideration is, when the statements are retracted, whether they could be accepted and acted upon in the facts and circumstances of this case. In the instant case the statements have been retracted from jail on 6-5-1984 and we have also carefully gone through the statements of retraction by the said Venilal Mehta and his daughter. We would like to note in this context that even in the statement of retraction it is nowhere stated that Venilal Mehta and his daughter were not in possession of the contraband gold in question or that the gold biscuits were not recovered from their possession from their hotel room. Nor is it stated in the statement of retraction that they did not know the appellant at all and that the implication of the appellant was introduced by the officers. It is a settled proposition of law that by mere retraction the original statement does not lose all its evidenciary value. When the statement is retracted, all that the law requires is to look for some corroboration from the other evidence available on record. Here, except the ipse dixit on the part of Venilal Mehta and his daughter that the statements were brought out under threat and coercion, there is no evidence either direct or circumstantial to substantiate the statement much less probablise the contention. As stated earlier, when Venilal Mehta has admitted having been in possession of contraband gold biscuits, it does not stand to reason as to why the authorities should bring any coercion in getting a statement from Venilal Mehta and his daughter. The plea of the learned counsel that the statement of one Sadashiva Sait, who is related to the appellant, is to the effect that he had purchased the entire gold on earlier occasions and, therefore, the appellant could not have had any connection with Venilal Mehta is not acceptable, because merely because one Sadashiva Sait is also involved it would not mean that the appellant was not involved in the earlier transactions. The ratio in the Division Bench's ruling in Kalyanaraman's case referred to above has no application to the facts and circumstances of this case, because in that case the Bench has clearly found on evidence that there was no corroboration at all to the retraction.. In the present case, as rightly contended by the learned D.R., there is substantial corroboration. We have gone through the statements recorded on 21-5-1984 from one Prakash Krishna Yadav, the statement of Suresh Mahadev, the brother of the appellant and the statement of the receptionist at Blue Diamond Hotel Shri Suresh, which, in our opinion, would offer adequate corroboration to the retracted statement of Venilal Mehta and his daughter. Apart from it we also find documentary evidence recovered from the possession of Venilal Mehta containing telephone numbers and other particulars indicating the connection between the appellant and the said Venilal Mehta and giving the lie direct to the later version of Venilal Mehta that he does not know the appellant at all. Likewise, as rightly referred to by the learned adjudicating authority in para 72 of the impugned order, there is evidence to show that trunk calls were booked from the residence of Venilal Mehta at Bombay to Cochin to telephone numbers installed at the silver refinery and Blue Diamond Hotel, both controlled by the appellant. The above evidence would, therefore, afford ample corroboration to the retracted statements of Venilal Mehta and his daughter. The plea of the learned counsel that the appellant was not permitted to cross-examine the officer and that would vitiate the impugned order on grounds of natural justice is not legally tenable. Admittedly, the appellant gave the exculpatory statement before the authorities and the person alleging coercion is not the appellant but the said Venilal Mehta and his daughter and in such a situation we are at a loss to understand as to how the cross-examination of the officers who recorded the statements of third parties would be of any consequence so far as the appellant is concerned particularly when the appellant had admittedly not availed himself of the opportunity to cross-examine Venilal Mehta and Miss. Pregna Mehta. We, therefore, do not find any substance in this plea of the learned counsel for the appellant. The plea of the learned counsel that the Collector of Customs has no jurisdiction to impose penalty under the provisions of the Customs Act and Gold (Control) Act will have to be just mentioned to be rejected as bereft of any substance. When the two enactments expressly and specifically provide for penal provisions in respect of a particular instance, the authority would be well within his jurisdiction to impose penalty under the respective enactments. We also do not find any substance in the submission of the learned counsel that consequent on the acquittal in the Criminal Court in the criminal prosecution the impugned order would stand vitiated. It need hardly be added that the standard of proof in criminal prosecution and the one before an adjudicating authority is totally different and strict provisions of Evidence Act applicable in criminal court in prosecution are not applicable before an adjudicating authority. Before an adjudicating authority the deciding factor in bringing home the charge is on the basis of preponderance of probabilities unlike that of proof "beyond reasonable doubt" which would govern the proceedings in a criminal court. The evidence before the criminal court and consideration thereof in this case is not identical with the one before the adjudicating authority and, as we have stated above, the statements of Venilal Mehta and his daughter do implicate the appellant as an abettor in respect of the contraband gold under seizure. Therefore, on a careful consideration of the entire evidence on record we hold that the charge of abetment against the appellant under the provisions of the Customs Act, 1962 and the Gold (Control) Act, 1968 has been clearly brought home. We, therefore, confirm the findings of the adjudicating authority under the impugned order.
6. At this stage the learned counsel prayed that atleast the case may be remitted with an opportunity to. the appellant to cross-examine the officer who effected seizure and recorded statements during investigation. We have already dealt with this issue and we, therefore, do not think that a remand is called for in the facts and circumstances of this case.
7. Having regard to the fact that 60 gold biscuits of foreign origin valued at Rs. 13,94,505/- (market value) have been transported in the instant case to which the appellant has been privy as an abettor, we do not think that the circumstances of the case call for any reduction in the quantum of penalty imposed on the appellant under the provisions of the Customs Act and Gold (Control) Act. We, therefore, confirm the penalty. In the result the appeals are dismissed.