Customs, Excise and Gold Tribunal - Delhi
Harbhajan Kaur vs Collector Of Customs on 3 April, 1991
Equivalent citations: 1991(56)ELT273(TRI-DEL)
ORDER S.K. Bhatnagar, Member (T)
1. This is an appeal filed against the order of the Additional Collector of Customs, New Delhi dated 14-9-1989.
2. The learned counsel stated that the appellant is an Indian national and at the material time, was resident abroad in Bangkok. The appellant came to India on 22nd July 1984 and after Customs Clearance at the Delhi Airport, proceeded to her village Somana Bhau, District Karnal, Haryana to see her parents and relatives.
3. On 25-7-1984, officers of Customs Preventive, New Delhi visited the said village and searched the premises where the appellant was staying. Nothing incriminating was recovered therefrom. The appellant was taken into custody by the said officers at about 8 p. m. on that day and was brought to Delhi in their official jeep without producing her before the Magistrate having jurisdiction over the said village. The appellant was unlawfully kept in custody in the Customs House and was forced to append her signatures on various papers prepared by the officers of Customs themselves. The appellant is almost illiterate and knows only how to sign in Punjabi. The contents of the said papers were not disclosed to her. The appellant had to sign the papers because, being a female and alone, surrounded by the Customs Officers, she was helpless.
4. The appellant was produced in the Court of the learned Additional Chief Metropolitan Magistrate, New Delhi (in short hereinafter referred to as the "A. C. M. M") on 26-7-1984 with a complaint alleging therein that the appellant had brought from Bangkok goods of foreign origin valued at Rs. 1,67,440/- which were recovered from 12 zipper suit cases and 5 zipper hand-bags, some of which were lying open and partly scattered on the floor. The goods were alleged to have been recovered from the room on the second floor of the house of the Sunil Kumar Sharma, s/o Dharampal Sharma, resident of 16/96, Subash Nagar, New Delhi. The said baggages were alleged to bear tags No. F-003801 to 003811, 003814, 003815, 003819, 003821 and 003923. The appellant when produced in the Court, complained that she had been falsely implicated and that her statement had been recorded under force and coercion.
5. It appeared from the said show cause notice that on 23-7-1984, the Customs officers had intercepted one auto-rickshaw No. DLR-8981 in which one person, later on known as Satpal Arora, was travelling, and on search of the said scooter, 2 zipper bags containing goods alleged to be of foreign origin, were found. As a follow-up action, the premises in Subhash Nagar was searched and more quantity of goods alleged to be of foreign origin and valued at Rs. 1,67,440/- were recovered. It was further gathered from the show cause notice that Shri Ajay Kumar, in his statements dated 24th and 25th July 1984 had implicated the appellant in respect of the seized goods. It was also found as a result of the searches, a number of incriminating documents had been recovered from the premises in Subhash Nagar. The appellant submitted reply to the show cause notice vide letter dated 25th April 1985 denying the allegations made in the show cause notice and submitting that she had been falsely implicated and that she was, in no way, concerned with the seized goods.
6. Personal hearing in the matter was fixed on 17-9-1985 at 16.30 hours, before the Collector of Customs and Shri Harish Chander, Inspector appeared and was cross-examined. In his statement and cross-examination, Shri Harish Chander admitted that he could not specify the goods which were found scattered on the floor of the house, as mentioned in the panchanama and he also could not specify as to which were the goods found from each of the suit case and hand-bags. He/further admitted that it was correct that all the goods lying in the suit case and hand bags and those scattered on the floor, were mixed together and segregated description-wise and repacked in suit case and hand-bags. He also admitted that this was done as the goods were lying in hotch-potch condition and it was not possible to relate the same with respective baggage. Shri Harish Chander also admitted that some documents had been recovered from the house owned by Shri Sunil Kumar which revealed that Shri Sunil Kumar had visited Hongkong and Bangkok in July 1984 and also pointed out the recovery of excess baggage tag No. 21744029661675 of Shri Sunil Sharma from the said house.
7. Personal hearing was fixed before the Additional Collector of Customs on 22-8-1988, but the appellant could not attend the personal hearing because of her personal problem. Request was, therefore, made for adjournment of the hearing. The learned Addl. Collector has not referred to the request of the appellant and has not given any reasons for refusing adjournment and denying the appellant a reasonable opportunity of being heard. The learned Addl. Collector has found that the seized goods were stated to have been brought after concealing in the baggage of the school children by the appellant, who came from Bangkok on 22/23-3-1984 night and were sold/offered for sale.
8. The learned Additional Collector has, however not gone into any of the contentions made by the appellant in reply to the show cause notice. The learned Additional Collector has also not considered the statement of Shri Harish Chander, Inspector, made by him in cross-examination by the appellant's advocate.
9. The learned Additional Collector has erred in law in relying upon the statements of Shri Ajay Kumar without examining him and providing an opportunity of his cross-examination by the appellant in terms of Section 138(b) of the Customs Act, 1962.
10. The learned Additional Collector has not even taken into consideration the contention of the appellant that the statement of the appellant was recorded under duress, threat and coercion while she was in their unlawful custody.
11. The learned Additional Collector has also not considered that Shri Ajay Kumar had retracted his statements and as such, the alleged statements could not be relied upon against the appellant without full corroboration.
12. The learned Additional Collector has failed to appreciate that the appellant could not be linked with any of the seized goods.
13. The learned Additional Collector has failed to appreciate that the seized goods could have belonged to Shri Ajay Kumar also, because he had visited Bangkok recently and returned therefrom just before the date of seizure. The incriminating documents recovered from his possession supported this fact.
14. The learned Additional Collector has wrongly held that the appellant used innocent school children for smuggling goods. Neither the names of those school children were disclosed, nor any evidence connecting these school children has been brought out.
15. The order of imposition of penalty on the appellant under Section 112 of the Customs Act, 1962 is illegal, in as much as the learned Additional Collector of Customs has not specified the sub-section of Section 112 of the Customs Act, under which he has imposed the penalty.
16. The learned SDR drew our attention the department's version as stated in the show cause notice and order-in-original and the discussions and conclusions of the learned Additional Collector and further emphasised that it was a case of conspiracy of the smuggling of goods organised by Shri Amarjeet Singh, husband of Smt. Harbhajan Kaur in which with the connivance of Shri Sunio and Co., innocent school children of Shivalik Public School were used. The contrabands were concealed in the baggage of the books of school children and were cleared in the baggage of Shri Sunil Kumar Sharma.
17. He also emphasised that Smt. Harbhajan Kaur had admitted in her statement that she took a group of school children to Bangkok and walk through the green channel on the arrival at the airport by declaring all the baggage contents as books and items of personal effects and that was concealed in the baggage by her husband Shri Amarjeet Singh and Shri Ajay Kumar and that she knew that Shri Ajay Kumar was working as an agent of my husband for disposal of the smuggled goods.
18. The learned counsel in reply emphasised that the allegations made against the appellants were baseless and she was not in any way concerned with the goods seized from Shri Satpal Arora or premises of Shri Sunil Kumar and Shri Ajay Kumar and that there was no evidence to connect her with the seized goods. The statement of Shri Satpal Arora and Shri Ajay Kumar are in the nature of retracted statement of co-accused and cannot be relied upon. Further, the statement of Smt. Harbhajan Kaur was neither voluntary nor true and he would like to draw attention to the circumstances in which the statement was recorded and the fact that a complaint was made in the bail application to the Additional Chief Metropolitan Magistrate.
19. The learned counsel in response to a query from the Bench further clarified that they are not claiming the goods and the appeal is confined to the setting aside of penalty imposed on the appellant.
We have considered the submissions of both the sides.
20. We find that the contentions of the learned counsel have a lot of force.
21. First and foremost it is evident from a reading of the order that the learned Additional Collector has not dealt with any of the major points raised by the appellants before him during the course of adjudication. Thus apart from other things, no finding has been recorded by the Additional Collector on the appellant's plea regarding
(i) Mixing up of items belonging to other persons said to be engaged in bringing goods from abroad.
(ii) Recording of the appellant's statement under 'duress' and,
(iii) The contention that allegations are based on the retracted statements of the co-accused which could not be relied upon.
22. This by itself renders the order defective.
Further, the learned counsel has drawn our attention to the difference in number(s) of suit cases and bags and tags as mentioned in the Panchanama and those mentioned in the statement of Smt. Harbhajan Kaur indicating thereby that the goods belonging to more than one persons and brought during more than one flights and kept at the same premises got mixed up and this is corroborated by the cross-examination of the Inspector Shri Harish Chander. It was however not necessary for us to go into further details in this respect as we notice that the confiscation of the goods has not been challenged in this appeal, and the goods have not been claimed by the appellant who has come up before us only against the imposition of penalty on her as one of the persons concerned with commission of the alleged offences. And in this connection we notice that in the show cause notice Section 112 has been invoked without specifying as to which sub-section was attracted. This was yet another defect in the proceedings as the Tribunal has already held in a number of cases that it was necessary to specify the relevant sub-section so that the charge is clearly brought home.
23. Be that as it may, there is a reference to the appellant's husband and some other persons said to be known to her but there is no specific charge of abetment or conspiracy as such; And yet the Additional Collector has recorded a finding of 'conspiracy'.
1. In this connection it is worth noting that the definition of abetment given in Indian Penal Code applies to all Central Acts vide Section 3(1) of the General Clauses Act, 1897. Hence the words "abets the doing" used in Section 112 of C. A. 1962 was required to be construed in the same sense and given the same meaning as in I. P. C.
2. In view of this position merely because Smt. Harbhajan Kaur, the appellant, was the wife of the person whom the department considered as the master mind behind the operations and had accompanied the children, it could not be presumed that she was acting in concert with or in league with her husband with the intention to smuggle the goods into India and sell them; And the department was required to show evidence - circumstantial or otherwise which would enable us to infer that the appellant intentionally participated in or facilitated the commission of the alleged offences.
3. In this context it is necessary to remember that "mere presence at the time of commission of a crime cannot amount to intentional aid unless it was intended to have that effect". Similarly "A mere giving of an aid will not make the act an abetment of an offence, if the person who gives the aid did not know that an offence was being committed or contemplated"; for it is the act of "intentional aiding and therefore active complicity" which "is the gist of the offence of abetment" made punishable by law. Further even mere "awareness that a crime was being committed is not in itself an intentional aid". However, a person could be punished as aider or abettor "if he knew all the circumstances which constituted the offence" and "his intention was to aid an offence or to facilitate the commission of an offence"; In other words "if the person who lends his support does not know or has no reason to believe that the act which he was aiding or supporting was in itself a criminal act, it cannot be said that he intentionally aids or facilitates the doing of the offence".
4. Moreover in case of abetment by conspiracy the "conspiracy" consists in a combination and agreement by persons to do some illegal act or to effect a legal purpose by illegal means. However, proof of such conspiracy is "generally a matter of inference, deduced from certain criminal acts of the parties accused done in pursuance of an apparent criminal purpose in common between them". Hence, "abetment by conspiracy is not established by proof of association together nor by mere suspicion of guilt".
And even a mere conspiracy would not amount to abetment unless an act or illegal omission takes place in pursuance of that conspiracy. "Close association and friendship are relevant only if they tend to show any concert of preparation with regard to the particular crime".
24. In the instant case from the circumstances narrated before us there can be reason to suspect that Smt. Harbhajan Kaur was aware of the activities of her husband and was acquainted with some of his associates but as aforesaid mere presence or awareness or acquaintance was by itself not sufficient to prove the charge; It is true that "Direct evidence to prove conspiracy is rarely available. Therefore circumstances proved before, during and after occurrence have to be considered to be decided on the complicity of the accused". The department has however, not taken sufficient care regarding this aspect and has not established that it was a case of abetment by 'aiding' or 'conspiracy' as understood in law.
25. Further even if it is presumed that she know about it all even then in view of the admitted mixing up of bags and tags and suit cases how could the blame be apportioned and how the Additional Collector could adjudge the seriousness of her offence and determine the appropriate extent of penalty, is not clear.
26. The extent to which the deficiencies of the investigation impinge on the adjudication becomes even more clear when we note that actual number of children and actual number of ladies who accompanied them has not been ascertained and no clear finding has been recorded regarding the exact quantity and type of value of the goods ascribable to the appellant and the children who accompanied her.
27. It is interesting to note that the number of children mentioned by Smt. Harbhajan Kaur is five (but the names mentioned by her are four) and she also refers to one more lady and other children; whereas Shri Sunil Kumar mentions the number of children as six and number of ladies as two and in the statement of Shri Ajay Kumar the number of children mentioned is ten and number of lady one.
28. It is also noted that the difference of versions in the copies of the statements filed before us (both in Hindi and English) by the learned counsel and those incorporated in the order-in-original has remained unexplained by the department.
29. Looking to the totality of facts and circumstances and noting the infirmities pointed out above, it appears that the department has tried to bypass the main issues raised before it and has not squarely met them.
30. In these circumstances, we are constrained to extend the benefit of doubt to the appellant and consequently, set aside the penalty imposed on her.
31. Before parting we make it clear that we are passing no order about the goods as no such order was called for in the absence of any appeal regarding confiscation thereof.
32. Hence, the order of the Collector stands modified only to the extent it relates to the penalty imposed on Smt. Harbhajan Kaur.
33. In the result the appeal is accepted.