Customs, Excise and Gold Tribunal - Mumbai
Gurdev Singh vs Collector Of Customs (P) on 30 April, 1996
Equivalent citations: 1996(88)ELT190(TRI-MUMBAI)
ORDER P.K. Desai, Member (J)
1. All the appeals are directed against the same Order-in-Original No. S/14-5-136/86 Pint., dated 3-12-1987 of the Collector of Customs (P) Bombay. They are heard together and are being disposed of by this common order.
2. Though the order impugned relates to confiscation of Gold and imposition of penalties on several parties, these appeals are confined to imposition of penalties of Rs. 15,00,000/- each, under the provisions of the Gold (Control) Act, 1968, and the provisions of the Customs Act, 1962 on each of the two appellants.
3.1. Because only a portion of the order is under challenge, the facts as are necessary to appreciate the contentions raised in these appeals, are highlighted.
3.2. Based on the specific information received, Truck No. PAT 1812 was intercepted on 25-3-1986. The occupants thereof were (i) Driver Darshan Singh, (ii) Conductor Lakha Singh, (iii) Gurbhaj Singh and (iv) Surjit Singh, both of whom were believed to be the local contacts. Search of the truck resulted into recovery of 360 Gold Biscuits with marking of Foreign Origin, and cloth hase having Pakistani markings, duly concealed in the Truck loaded with rice bags. As no plausible explanation was available, the Gold Biscuits and hase as also the Truck were seized.
3.3. Statements of driver Darshan Singh were recorded on 25-3-1986, 26-3-1986 and 16-5-1986, where he stated to have been employed as a driver by one Sukhvinder Singh the owner of the Truck PAT 1812, who had directed him to obtain orders from Seva Singh of Amritsar for day-to-day business for the Truck and on 20-3-1986, said Seva Singh told him (the driver) that the consignment of rice was to be taken to Bombay and had told him to go to M/s. Dash Mash Cargo Carrier and then load rice bags from M/s. Sachdev and Sons Mills at Amritsar. As stated by him, Lakha Singh the Conductor, come to his place at about 7.00 p.m. on 20-3-1986, and told him to go with him and when he came near the Truck, he found that Sukhvinder Singh was also waiting, and hence they all the three went to M/s. Sachdev Mills Via M/s. Dash Mash Cargo Company, and loaded rice bags and then from there, all the three went to the farm house of Seva Singh on G.T. Road, Man-Mandi, Amritsar, where he and Lakha Singh, were made to sit on Charpoy, and Sukhvinder and Seva Singh supervised loading of contraband gold and Gurdev Singh son of Seva Singh was also present there. According to him, Seva Singh gave him a chit on which Telephone Number and address of Surjit Singh was written and he was instructed not to stop the Truck anywhere, as it contained Gold. As stated by him, accordingly he brought the truck to Bombay and contacted Surjit Singh and handed over the Chit to him. According to him Seva Singh had also assured him some special remuneration on his return from Bombay.
3.4. Conductor Lakha Singh in his statements dated 26-3-1986 corroborated what Darshan Singh had stated.
3.5. Surjit Singh in his Statement, admitted to have received phone call from Sukhvinder Singh about despatch of Gold and to have met driver Darshan Singh, and further stated that Gurdev Singh son of Seva Singh, who happened to be the brother-in-law of his brother Malkit Singh, was also involved with Sukhvinder Singh, in arranging for delivery of gold and Gurdev had also visited Bombay in that connection, and that in the past also, he had received similar consignment. He further admitted to have noted the Telephone number of Seva Singh and Gurdev Singh in a diary found from his residence.
3.6. Statements of Gurdev Singh were recorded, which were inculpatory and he admitted to have entered into conspiracy with one Man Singh to smuggle gold from Pakistan and in association with Sukhvinder Singh transported the same. He however stated that Seva Singh did not have any connection with these transactions.
3.7. Seva Singh, in his statements, though admitted to have been staying with Gurdev Singh and to have known Surjit Singh, denied to have known Sukhvinder Singh and stated that he had no connections with the smuggling of gold or transporting the same. He also stated that on 30-3-1986 he had gone to Chandigarh to meet one Minister and also explained how he spent the entire day outside Amritsar.
3.8. Sukhvinder Singh and Manhee Singh were not located.
4. On completion of the investigation, show cause notice was sent and adjudication proceedings were conducted where the impugned order was passed.
5.1. Mr. Pochkhanwala, the ld. Advocate appearing for both the appellants, has initially submitted that the Show Cause Notice dated 22-8-1986 was only under the provisions of the Gold Control Act, 1968 and hence penalty imposed under the provisions of Customs Act was bad in law and also referred to same case law. However when his attention was drawn to the fact that another notice of the same date was also issued under the provisions of the Customs Act, 1962, he has not pressed the said contentions.
5.2. Pleading for Seva Singh, the ld. Advocate has pleaded that it is only the driver Darshan Singh who has implicated this appellants, and said Darshan Singh has retracted the said statement. In his submission there is no corroboration to what Darshan Singh had initially stated. The ld. Advocate has pleaded that Seva Singh has produced documentary evidence, showing his presence at Chandigarh on the day he is said to have supervised the loading and there are statements on record, of Amrik Singh and Ghanya Singh, Serpanch, to the effect that Seva Singh could not be at Amritsar on 20-3-1986. He pleads that the chit alleged to have been written by Seva Singh to Surjit Singh has not been recovered, and in his statement Surjit Singh has clearly stated that he had no contact with Seva Singh and that it was only Sukhvinder Singh who contacted him. In his submission, even in the inculpatory statement of Gurdev Singh, he has stated that Seva Singh was not involved. He pleads that Sukhvinder Singh is not traced out, to testify to the involvement of Seva Singh. In his submission therefore, there is no evidence to connect appellant Seva Singh.
5.3. As regards Gurdev Singh, he pleads that this appellant has, though given inculpatory statement, has retracted the same, and driver Darshan Singh merely mentions of his presence, which may not be lead to his participating in the loading of goods and that Surjit Singh has only the indirectly implicated him. He further pleads that Gurdev Singh was denied opportunity to cross examine Darshan Singh and Conductor Lakha Singh and even then, reliance is placed on their statements to implicate Gurdev Singh. It is also his contention that copies of the statements, though demanded, have not been given. As to the acceptability of the Confessional statement, the ld. Advocate has relied upon Tribunal decision in Tarsemlal Maglani v. Collector - 1987 (30) E.L.T. 797 (Tribunal) and has pleaded that the Corroboration is classified. In his submission, when the person implicating the appellant have not been offered for cross examination, and has self Confessional statement is not enough, the conclusion drawn cannot be sustained.
5.4. Mr. Gurdeep Singh, the ld. JDR, while supporting the order, has pleaded that, Driver Darshan Singh has clearly implicated Seva Singh stating that he (Seva Singh) was supervising the loading of gold and that he had given a chit. In his submission though Darshan Singh has allegedly retracted his statement, he, vide his letter dated 28-9-1986, has declared that the retraction was not a correct one and that he was confirming his initial statement. The ld. JDR, has also pleaded that there is no clear evidence that at the time of loading he was either at Chandigarh or had gone on pilgrimage. He further pleads that from the statement of Darshan Singh, he met Seva Singh on 19-3-1986, when instructions were given, and there is no evidence that Seva Singh was not available also on 19-3-1986. As regards Gurdev Singh, the ld. JDR, has pleaded that he has given a completely inculpatory statement and retraction is just an after thought. He pleads that the statement of Gurdev Singh gets corroborated from the statement of other two Notices, who could not be offered for cross examination, as they could not be compelled to testify against themselves.
6. Considering the submissions, and going through the records there is no denial to finding of the Gold from the Truck No. PTA 1812 and that the truck was owned by one Mr. Sukhvinder Singh and was at the relevant time driven by Darshan Singh, and Lakha Singh was the Conductor. There is also no denial that the Truck had came from Amritsar and when intercepted, Surjit Singh and Gurbat Singh were also in the Truck.
7. There is no challenge to the order of confiscation of gold or the Truck so far as these appeals are concerned, and the only issue involved is whether both the appellants or either of them was involved in transporting the foreign marked gold found from the same. The allegation is, that the loading of the contraband gold was done at the farm house of Seva Singh, and his son Gurdev Singh along with one Sukhvinder Singh were present and had supervised the same. As is disclosed in the statement of Driver Darshan Singh and Conductor Lakha Singh, loading of the gold was done in the night of 20-3-1986.
8.1. So far as the involvement of Seva Singh is concerned, the only evidence that is available is the statement of Darshan Singh. According to him, he, under the instructions from Sukhvinder Singh, contacted Seva Singh on 19-3-1986 at 4.00 p.m. It appears that he was not knowing Seva Singh before that. Describing Seva Singh, he states that Seva Singh is a middle aged around 45 to 50 years well built, wheatish complexion, around 5' 6" height. Seva Singh has however in his statement recorded on 17-4-1986, given his age as 68 years, and the officers recording the statement do not appeared to have doubted the same. Gurdev Singh has in his statement recorded on 2-4-1986 given his age as 34 years. Both admittedly stay together. With the vide discrepancy in the age of Seva Singh as given by Darshan Singh and as stated by Seva Singh himself, and again with lesser degree of discrepancy in the age of Gurdev Singh as given by Darshan Singh and Gurdev Singh, it cannot be ruled out that though Darshan Singh had gone to the residence of Seva Singh, he had met Gurdev Singh and not Seva Singh. This probability stands in conformity with the inculpatory statement given by Gurdev Singh on 2-4-1986, where he admits to have sent the gold.
8.2. Besides that, though Darshan Singh states that Seva Singh supervised the loading of gold in the evening/night of 20-3-1986, there is an evidence in the nature of gate pass issued at Vidhan Sabha, indicating visit of Seva Singh at Vidhan Sabha on 20-3-1986 at 10.30 A.M. and that by the evening on that day, he had gone on pilgrimage with this family. There is also a statement of Amrik Singh Fran Singh recorded on 30-7-1986, which supports the stand taken by Seva Singh. Though he does not give the date and time when Seva Singh joined the family, from what he has stated, it could be construed that Seva Singh might have joined them on 20th itself, and this comes in conformity to what Seva Singh has pleaded.
8.3. Darshan Singh has though initially, mentioned of participation of Seva Singh in loading of gold, has at subsequent stage retracted from the same. Even if at a later stage, he has re-confirmed his initial statement, his often changing of the stand, makes his statement as not sufficient enough to base any conclusion when the other evidence adduced probabalises absence of Seva Singh, and also where his description about Seva Singh is rather different. Though some corroboration from the statement of Lakha Singh may be available, he speaks of loading of the gold by Sukhvinder Singh and Gurdev Singh, and describe Seva Singh as about 50 years old person.
8.4. Gurdev Singh has clearly implicated himself and has stated that Seva Singh was not involved.
8.5. Considering all the circumstances, therefore it becomes doubtful as to whether it was this appellant Seva Singh who was present at the time of loading of gold or was some other person, aged about 45 to 50 years, and with the evidence led making it probable that Seva Singh may not be the person who was present at the time of loading of the gold, the benefit of uncertainty should go to him.
8.6. Giving the benefit of doubt therefore, penalty imposed of Seva Singh, both under the provisions of the Customs Act, 1962, and the Gold (Control) Act, 1968 are set aside.
9.1. So far as Gurdev Singh is concerned, there is a clear admission on his part in the statement recorded on 2-4-1986. The seizure is effected on 25-3-1986. He was not in Custody of the investigating officer, and the retraction made has to be taken just as an after thought. Notwithstanding any other evidence, therefore, involvement of Gurdev Singh is duly established.
9.2. The ld. Advocate has relied upon the decision of the Tribunal in Tarsemlal Maglani v. Collector (supra). The facts there however are entirely different from those here. In the said case there was an evidence that the person who initially implicated, had an enmity with the person named. Here the persons implicating are the close relatives, namely Surjit Singh whose brother is married to Gurdev's sister. Further the said decision is based only on facts available their, and there could be no case law on the facts. The said decision therefore does not help the appellants.
9.3. Mere non-permitting Cross Examination, has in the instant case, no way materially prejudiced the appellant, who himself has admitted his involvement and his alleged retraction appears nothing more than an after thought.
9.4. With his involvement duly accepted, penal liability on him is justified, and penal liability is therefore upheld.
9.5. Penalty imposed on him is Rs. 15,00,000/- each, under the different headings. With the repeal of the Gold (Control) Act, without replacement there appears some scope of showing some leniency. Hence penalty under Section 74 of the Gold (Control) Act is reduced from Rs. 15,00,000/- to Rs. 1,00,000/-. As regards the penalty under Section 112 of the Customs Act, it is not clear as to whether he was the person who had smuggled the gold, or was instrumental in mere disposing of the smuggled gold. The total value of gold is put at Rs. 85,32,000/-. However considering the role that he appears to have played, penalty of Rs. 15,00,000/- appears to the excessive, the same is therefore reduced to Rs. 5,00,000/-.
10. In the result, appeal Nos. G/223/89 and C/423/89, are allowed, and order imposing penalty on Seva Singh S/o Mohan Singh is set aside, whereas Appeal Nos. G/224/89 and C/422/89 are partly allowed and while sustaining penal liability of Gurdev Singh S/o Seva Singh, the penalty imposed under the Gold (Control) Act, 1968 is reduced to Rs. 1,00,000/- and the one imposed under the Customs Act, 1962 is reduced to Rs. 5,00,000/-. The Appeals are disposed of accordingly.