Customs, Excise and Gold Tribunal - Tamil Nadu
M.B. Moosa And Ors. vs Collector Of Customs on 24 March, 1986
Equivalent citations: 1986(25)ELT804(TRI-CHENNAI)
ORDER S. Kalyanam, Member (J)
1. The revision applications filed before the Government of India against the order of the Central Board of Excise and Customs referred to supra stand transferred to the Tribunal in terms of Section 131B of the Customs Act, 1962, hereinafter referred to as the Act, to be disposed of as appeals. Since the above appeals arise out of a common order and are inter-connected, they are taken up together and disposed of by a common order. The Collector of Central Excise, Bangalore, by order dated 8-7-1976 in C.No. VlII/10M2/71-Cus. imposed a penalty under Section 112(b)(i) of Rs. 10 lakhs, Rs. 8 lakhs, Rs. 50,000/-and Rs. 50,000/- respectively on appellant M.B. Moosa (appeal No. 160/83), Mammali Haji (appeal No. 185/80), Khatib Ali Saheb (appeal No. 187/80) and Khatib Abbas Saheb (appeal No. 282/80). Appellant Khatib Ali Saheb is not represented before us.
2. The brief facts relevant for the appeals are as follows. On the basis of information that goods of foreign origin have been brought and dumped in a hut near Gujjarbettu sea coast, Udupi Taluk, Karnataka State, the authorities on the night of 28/29-12-1971 raided the same and recovered 94 gunny bundles which on examination were found to contain fabrics, metallic yarn, calculators and Cassette car Stereo Bigston (Player/recorder), all of foreign origin. The hut belonged to one Shabi Fernandez of Badanidiyur village. Since nobody claimed the goods, the goods were seized under maha-zar as per law. During the course of investigation, the authorities examined a number of persons as detailed in the original order of adjudication and recorded their statements which included the appellants herein and others. Investigation revealed that an Ambassador car bearing registration No. MYG 3288 in the ownership and possession of appellant Khatib Abbas Saheb was used for the transport of the goods under seizure. It is in these circumstances, after due investigation, proceedings were instituted against the appellants herein and others which culminated in the impugned order now appealed against.
3. Shri Ratna Singh, the learned counsel appeared for appellants Moosa and Mammali Haji and made his submissions while Shri Nambiar, the learned counsel appeared on behalf of the appellant Khatib Abbas Saheb and nobody represented appellant Khatib Ali Saheb.
4. It was contended on behalf of appellant Moosa that he has been implicated only by two persons viz. V. Abbas and Abu Mohamed and since they are in the possession of a co-accused arid since they have also subsequently retracted their statements, no reliance can be placed in law on the same. It was further urged that retracted statements require corrobora-tion in law and the same being absent in the case, the appellant should have been exonerated of the charge. It was submitted that the reference by the persons would not point to appellant Moosa and in the circumstances of this case, the adjudicating authority at least to satisfy his conscience should have asked the witnesses to identify appellant Moosa. The learned counsel also contended that the prosecution in the Court of Judicial First Class Magistrate, Udupi, in C.No. 1104 of 1974 against the appellant and others having ended in acquittal, the appellant should be absolved of the charge. The learned counsel also contended that the appellants were kept in illegal detention for over a week till 7-1-1972 and so the statements recorded during such detention are not valid in law. The learned counsel also placed reliance on certain rulings of the Supreme Court to contend that fundamental principles of criminal jurisprudence would govern adjudication proceedings which are quasi criminal in nature and also for the proposition regarding the applicability of the principles of Section 30 of the Evidence Act. So far as appellant Mammali Haji is concerned,' the learned counsel conceded the fact that he has been implicated by a number of persons but nevertheless adopted his other submissions made on behalf of appellant Moosa for exonerating him of the charge.
5. Shri Nambiar, the learned counsel for appellant Khatib Abbas Saheb, contended that out of 17 persons only three people viz. T.S. Mohamed Sheriff, Abu Mohmed and Chella Tandel alone have implicated the appellant and out of the 7 boatmen nobody had implicated the appellant. It was urged that out of the said three persons who implicated the appellant, Abu Mohmed and Sheriff were inimically disposed towards him as is evidenced by the appellant's statement dated 8-1-1972. He therefore, contended that having. regard to the averments in the show cause notice and the evidence collected during investigation against the appellant, the change under Section 112(b)(i) of the Act against his client has not been made out. Though the car MYG 3288 was in the possession of custody of appellant Khatib Abbas Saheb temporarily, the driver of the vehicle has not stated that this car was used in the transport of the contraband goods under seizure but a different car having an APQ registration, and so it was contended that mere temporary custody or possession of the vehicle MYG 3288 with appellant Khatib Abbas Saheb would not be a circumstance against him. The learned counsel also placed reliance on the judgment of the Criminal Court referred to supra and urged the plea that the appellant was in a state of illegal detention.
6. The learned Departmental Representative repelling the submissions of the learned counsel for the appellants contended that the plea of the learned counsel that appellant Moosa was implicated by only two persons is factually incorrect and contended that he has been implicated by a number of persons. He referred to the statement of L.K. Abdul Khader dated 29-12-1971 implicating appellant Moosa and also referred to the statements of (1) M. Mohammed, (2) Kundremal Abdul Rahiman (3) Parkot Mohamed (4) Aziz (5) K.C. Hussainaire and (6) Abdul Rahiman and contended that they corroborated the statement of the aforesaid Abdul Khader. The learned Departmental Representative placed reliance on the statements of Umar Saheb, K. Abu Mohamed, T.S. Mohammed Sheriff and V. Abbas and contended that appellant Khatib Abbas Saheb and others concerned have been clearly implicated by them with reference to the contraband goods under seizure. The learned DR urged that in adjudication proceedings there is no Accused or co-accused and in law the adjudicating authority is entitled to place reliance on the statements of the persons in the position of an accomplice, of course, subject to corroboration. Regarding the plea of retraction, the learned DR submitted that retraction by the parties in the instant case is very belated and in respect of statements recorded in December 1971 and January 1972, there was retraction only in August 1972 which would not be given any weight in law. Even with- regard to the plea of illegal detention and recording of statements under coercion, the learned Departmental Representative urged that no complaint was made to the Chief Judicial Magistrate at the time of remand and this would only falsify the plea of coercion and illegal detention as an after thought. He also dwelt on the non-availing of an opportunity by the appellants of corss-examining the Customs Officers during adjudication to substantiate their plea of illegal detention and coercion now alleged.
7. With reference to the involvement of the car MYG 3288, admittedly in the custody of appellant Khatib Abbas Saheb, though temporarily, the learned DR placed reliance on the statements of Umar Saheb, Chella Tandel and Mohamed Sheriff and contended that the involvement of the car MYG 3288 has been proved.
8. We have considered the submissions of the parties herein. We find on a scrutiny of the records that the submission of the learned counsel Shri Ratna Singh that appellant Moosa has been implicated only by two persons, in the position of co-accused is not factually correct. Indeed we should observe that while dealing with the case of appellant Moosa the learned counsel himself was not quite sure as to how many persons have implicated him and he started originally saying that two persons have implicated him and corrected himself and submitted that only one had implicated appellant Moosa and again re-corrected himself to say that two persons had implicated him. But on going through the records we find that appellant Moosa has been implicated by a number of persons. The statement of L.K. Abdul Khader dated 29-12-1971 implicates appellant Moosa and others and as rightly observed in the impugned order of adjudication, statements of M. Mohamed, Kudremal Abdul Rahiman, Parkot Mohamed, C. Aziz, K.C. Hussainare and M.K. Abdul Rahiman dated 29-12-1971 lend a considerable degree of corroboration to the statement of L.K. Abdul Khader establishing the complicity of appellant Moosa and others with the contraband goods under seizure. In such a situation the only question that would arise for consideration is whether the statements are true and voluntary and reliable. On going through the statements we are convinced that they are true and voluntary. If the statements have been brought about under coercion, as it is now contended, or in a situation when they were alleged to have been kept in a state of illegal detention, it does not stand to reason as to why the appellants did not avail themselves of an opportunity of cross-examining the Customs Officers during adjudication proceedings. We agree with the submission of the learned DR that people who may be arrayed as co-accused in a criminal prosecution would not be co-accused as understood in law in adjudication proceedings. As the Tribunal had occasions to point out repeatedly that -in adjudication proceedings there is no accused, much less a co-accused and even under general law and in criminal jurisprudence the evidence of an accomplice is certainly entitled to credit and acceptance provided it satisfies what the Supreme Court would call a 'double test' viz. reliability and corrobora-tion. Here in the instant case, the persons who have implicated the appellants, though in the position of an accomplice, have given inculpatory statements admitting their own complicity with the contraband goods under seizure and in such a situation when there is no immediate retraction, the statement would be entitled to weight and consideration. As stated above, we find the statements to be true and voluntary and the belated retraction is an after thought not meriting acceptance. It is also a settled proposition of law that when a statement which is inculpatory in nature and confessional in character has not been retracted immediately, the court or the quasi-judicial authority would be entitled to go into the reasons for retraction to find whether the reasons are tenable and true. In the instant case, admittedly in respect of the statements recorded in December 1971 and January 1972, they were sought to be retracted very late in or about August 1972 and no valid explanation or reason is adduced or even pleaded for such belated retraction. We have therefore, no hesitation to hold that the belated retraction is purely an after though and resorted to by the persons concerned in a desparate bid to extricate themselves! from the clutches of law. The learned counsel placed reliance on the ruling of the Supreme Court in the case of Amba Lal v. Union of India and Ors., reported in AIR 1961 SC 264 to contend that the fundamental principles of natural justice and criminal jurisprudence would be applicable in adjudication proceedings. He also referred to the ruling of the Supreme Court in the case of Shanti Prasad Jain v. Director of Enforcement, Foreign Exchange Regulations Act and another, reported in AIR 1962 SC 1764, to contend that proceedings under the Customs Act are quasi-criminal in nature. Nobody can quarrel with this axiomatic and fundamental proposition of law. In the instant case the learned counsel was not able to satisfy us that the fundamental principles of criminal jurisprudence or natural justice were not applied in the adjudication proceedings. We also do not find any substance in the plea of the learned counsel that appellant Moosa has not been properly referred to and identified by the various persons. There is no provision under the Customs Act for holding any identification parade, as is done under the provisions of Criminal Procedure Code, and to a specific query from the Bench, the learned counsel while conceding this point submitted that at least for the subjective satisfaction the adjudicating authority should have taken pains to get to know whether appellant Moosa has indeed been specifically and clearly referred to. On going through the various statements we are not left with any doubt in our mind that it is appellant Moosa who has been referred to by the various coolies and others and we would rather think that it is for the appellant to prove and establish that either he was unknown to the persons who have implicated him or that one Moosa who has been implicated by the persons is not the appellant but somebody else. The appellant did not even avail himself of an opportunity of cross-examining the persons who have implicated him and the learned counsel to a specific question from the Bench in this regard merely stated that. when the statements have been retracted subsequently there was no need for the appellant to cross-examine them. We do not find any substance in this submission of the learned counsel for the simple reason, by mere retraction the earlier inculpatory statement does not get obliterated or annulled. Time out of number, one would come across instances where the later version of a witness is found to be unacceptable and false and the earlier version to be true and acceptable. It is the quality of the evidence and not the quantity that would count before a quasi-judicial authority and hardly one comes across a witness whose evidence does not contain a grain of untruth and at any rate, exaggerations, embroideries or embellishments and it should be the endeavour of a court or a quasi-judicial authority to scrutinise the evidence carefully and in terms of the felicitous metaphor 'separate the grain from the chaff and the maxim falsus in uno falsus in omnibus is neither a sound principle of law or Rule of practice. The Supreme Court in the case of Nishikant Jha v. State of Bihar, reported in 1969 MLJ (Criminal) 46, has enunciated that inculpatory part of a confession of an accused which commends belief could be accepted and exculpatory part which is inherently incredible could be rejected. If such1 is the position with reference to the confession of an accused even in a criminal 'prosecution, a fortiori it follows that in adjudication proceedings, it is open to the adjudicating authority to sift and weigh the evidence and to place reliance on such part of the statement that commends acceptance rejecting certain other portion which may look inherently improper. But in the instant case, having gone through the statement of the various persons, we are satisfied that they are true and voluntary, reliable and merit acceptance in regard to the implication of the appellant with the goods under seizure. We are not inclined to accept the plea of the learned counsel with reference to the judgment of acquittal by the Judicial First Class Magistrate, Udupi, in the criminal prosecution referred to above. It should be noted in this context that in a criminal court Section 30 of the Evidence Act would come into operation, and when various persons are arrayed as accused and when the accused persons have given statements confessional in nature, the criminal court cannot place reliance on the confession of a co-accused and Section 30 of the Evidence Act imposes as it were a statutory embargo on the court from relying on the confessional statement of a co-accused. As the Supreme Court has held it is only after taking into consideration the entire evidence and materials available on record de hors the confession' of a co-accused, if the court reaches a judicial conclusion of guilt, the court will be entitled to look into the confession of a co-accused for purposes of lending assurance to. its conscience. But the position would be entirely different before an adjudicating authority before whom, as stated earlier, there is neither an accused nor a co-accused and the statements of persons in the position of an accomplice can certainly be taken into consideration, of course subject to limitation prescribed by law. The ruling of the Supreme Court relied upon by the learned counsel in the case of Haricharan Kurmi and Jogia Hajan v. State of Bihar - reported in AIR 1964 SC 1184 will have no application to the facts of this case and the Supreme' Court has dealt in that case with reference to the applicability of Section 30 of the Evidence Act in a criminal prosecution. Therefore, on consideration of the entire materials on record we have no hesitation to hold that the impugned order is clearly maintainable against appellants Moosa and Mammali Haji.
9. We shall now take up the submission of the learned counsel for appellant Khatib Abbas Saheb. Appellant Khatib Abbas Saheb, even according to the learned counsel, has been implicated by T.S. Mohamed Sheriff, Abu Mohamed and Chella Tandel. Apart from it on scrutiny of the records we find that the contention of the learned DR that other persons such as Umar Saheb and V. Abbas have also implicated the appellant is well founded. We have gone through the statements of the various persons implicating the appellant Khatib Abbas Saheb and we find that the statements are true and voluntary and acceptable. The mere ipse dixit on the part of the appellant that Abu Mohamed and Sheriff were inimically disposed towards him would be neither here nor there. When the appellant put forth a plea of enmity it is for him to substantiate the same or probabilise it by some acceptable evidence. We therefore, reject the plea of enmity submitted on behalf of the appellant against the said persons. It is well settled proposition of law that even enmity is established that would not detract from the acceptability of the evidence otherwise except that a court or a quasi-judicial authority should exercise more caution and circumspection in evaluating the evidence. A motive is always a double edged one and is only an enlightening factor in the process of presumptive reasoning. The involvement of the appellant as one concerned with the goods under seizure has been clearly established by the statements of the various persons which we have held pass muster with us. It is admitted by the learned counsel that the vehicle MYG 3288 was in the appellant's custody, possession and control albeit temporarily, Statements of persons such as Yakub Saheb, Kareem Saheb, Jabba Poojari clearly connect the vehicle MYG 3288 with the goods under seizure and apart from it statements of Umar Saheb, Chella Tandel, Abu Mohamed and Mohamed Sheriff would also establish connection between the appellant and the goods under seizure vis-a-vis MYG 3288. The plea of the learned counsel regarding illegal detention, retraction of the confessional statements of the various persons implicating the appellant and unacceptability of those statements as they are persons in the position of a co-accused have all been set out while considering the case against appellant Moosa and the various principles which we have adverted to would equally apply here also and instead of repeating the same we adopt the same reasons for accepting the statements of various persons implicating appellant Khatib Abbas Saheb. We therefore, hold that the charge against appellant Khatib Abbas Saheb has been clearly established.
10. So far as appellant Khatib Ali Saheb is concerned, even-though he is not represented by anybody, we find that the materials on record and the statements of the various persons referred to above clearly implicate his connection with the goods under seizure.
11. Therefore, on consideration of the entire evidence on record, we find that the charges levelled against the appellants herein have been clearly brought home and we therefore, confirm the impugned order appealed against and dismiss the appeals.