Customs, Excise and Gold Tribunal - Mumbai
B.N. Jadeja vs Collector Of Customs on 25 July, 1989
Equivalent citations: 1989(44)ELT736(TRI-MUMBAI)
ORDER P.K. Desai, Member (J)
1. This appeal is directed against the Order-in-Original bearing No. 52/Addl. Collr./l985, dated 2-8-1985 so far as it relates to imposition of personal penalty of Rs. 2500/- under Section 112(b)(i) of the Customs Act, 1962 on the present appellant.
2. The appellant, who at the relevant period, was Police Sub-Inspector at Bagvadar Police Station, in Junagadh District of Gujarat, has, vide Notice to show cause dated 22-11-1985, been charged to have been concerned in acquiring, removing, possessing, transporting, keeping, concealing 7 VCRs made in Japan, which were found on 13-4-1983, from an open room near Palakhada Bus Stand. The facts leading to levelling of the aforesaid charge, as narrated in the aforesaid show cause notice are, that on 3-4-1983, at about 9.00 p.m., when the appellant with his party was on patrolling on Ketela -Ratdi Road he spotted one oil tanker bearing registration No. MTS 3406 and when signalled to stop, it did not stop, hence it was chased, and was ultimately found abandoned near Ratdi Village. Under the instructions from the appellant P.S.I., the same was brought to Bagdavar Police Station and intimation was given to the Customs Department at Porbandar. The officers were sent there, who found three V.C.Rs. lying concealed in one of the compartments of the tanker, which were seized under the reasonable belief as they being smuggled into India. On 13-4-1984, the appellant P.S.I., seized seven V.C.Rs. "National" made in Japan, from an open room near Palakhada Bus Stand, under a panchnama and the same were handed ever to the Customs Department. The appellant P.S.I., also produced two persons, namely Meraman Ala Mer and Shantigar Amargar Bawaji of Visawada as the persons concerned with the said goods. The officers of the customs department, therefore, recorded the statements of both of them. Shantigar Amargar Bawaji, in his statement recorded on 14-4-1983, under Section 108 of the Customs Act, is reported to have stated that, on 3-4-1983, while he was passing from near the place where the oil tanker was lying, he saw two police constables Keshuvbhai and Jivabhai. He was stopped by Constable Keshuvbhai, and was told to drive the oil tanker to Bagvadar Police Station, as the same was directed by the appellant P.S.I. to be taken. He is reported to have further stated that accordingly, after putting his vehicle, he came back, and drove the said oil tanker, alongwith constable. Keshuvbhai and Jivabhai to Bagvada Police Station. According to him, on the way, the tanker was made to stop by constable Jivabhai who got down and came back with Meraman Alabhai Mer and both of them boarded the tanker. After the tanker proceeded little further, it was made to stop, and he was asked to go to nearby place to ascertain whether appellant P.S.I. had come, and as such he went and when he returned, he saw 8 to 9 bundles lying scattered near the tanker wrapped in jute cloth. He was then asked by constable Keshuvbhai to take the tanker to the Police Station. He is reported to have stated that constable Keshavbhai at that time told him that the goods belonged to P.S.I. Jadeja the appellant here and that he should not talk about this to any one. In his statement recorded, also on 14-4-1983, Meraman Ala Mer, is reported to have stated that about ten days back, while he was in his farm, constable Jivabhai came and asked him to accompany him (Keshavbhai) to Palkhada, Bus Stand where the tanker was lying. He accordingly went there and accompanied both constables Jivabhai and Keshavbhai in the tanker. According to him, the oil tanker was stopped after some time and both the police constables unloaded 8 to 9 bundles rapped in jute cloth, and tanker alongwith constable Keshavbhai went away. As per the version, Constable Jivabhai then told him that the goods belonged to P.S.I. Jadeja, the appellant, and that the appellant would pay him Rs. 5000/- and he should arrange to conceal the goods. He is reported to have further stated that he therefore arranged to remove these bundles and at the instance of constable Jivaji, concealed the same in the barren farm of Jivabhai Mer. On the next day both the Policemen came to him and told him to remove the goods from the place where they were concealed to his (Meraman) field. He is reported to have further stated that initially he hesitated but was told that the goods belonged to PSI Jadeja, the appellant and was threatened of dire consequences and hence he, with assistance of those two constables, removed the goods and concealed them in the farm. Basing on this evidence, the department vide notice dated 22-11-1985, called upon the appellant and two police constables to show cause why penalty should not be imposed on them under Section 112 of the Customs Act. The appellant submitted his written reply denying the allegations. After hearing them, the Additional Collector passed the impugned order. Two constables have also been ordered to pay penalty of Rs. 500/- each under the same provision.
3. Mr D.H. Shah, the learned advocate, appearing on behalf of the appellant submitted that the appellant has been wrongly implicated and actually it was he who seized the contraband goods and handed over them to the Police. Mr Shah further submitted that except the bare words of, Shantigar and Meraman, there is absolutely no evidence, and what both of them are reported to have stated implicating the appellant, is based on what they were reportedly told by constable Jivabhai. He pointed out that constable Jivabhai's statement is also recorded by the department, when he has clearly denied to have ever told Shantigar and Meraman that the goods belonged to the appellant. Mr Shah urged that what Shantigar and Meraman have said is merely a hearsay evidence, and when the same is not corroborated by constable Jivabhai, the same has practically no evidentiary value, and have to be discarded. Mr. Shah submitted that actually the appellant suspected these two persons as concerned with the goods, and produced them before the customs officers. Mr. Shah then argued that neither of the seizures was by that customs officers, and it was only the appellant, who did that after drawing regular panchnama, and making appropriate note in his diary, and pointed out that if the goods really belonged to him, there was no reason for the appellant to seize them under panchnama, and report the matter to the customs authorities. Mr. Shah submitted that the appellant has a clean and meritorious record as a Police Officer, and a systematic effort is made to discredit him. Mr. Shah drew our attention to the fact that initially proceedings were initiated only against others including Meraman Ala Mer, and vide order No. 48 of Addl./Collr./1984, dated 4-8-1984 the goods found are already ordered confiscation and the owner of the tanker and Meraman have been imposed penalty and that till then, the appellant was not even served with any notice to show cause.
4. Shri K.M. Mondal, the learned SDR, supporting the finding and order of the Additional Collector, submitted that the appellant has been named as the person concerned by the independent and disinterested persons, who have no reason to falsely implicate the appellant and there should be no reason why they should be disbelieved. He also submitted that both of them have corroborated each other. Mr Mondal submitted that though Meraman has stood penalised under Section 112 of the Customs Act, he is implicated only for his abatement in concealment of the said contraband goods, but that cannot make Meraman an incredible witness. Explaining the behaviour of the appellant, in handing over the said VCR to the customs officers, Mr Mondal submitted that, apprehending that some others had come to know about his involvement in the said smuggled goods, the appellant subsequently thought it safe to surrender the goods, as found abandoned. Mr. Mondal submitted that there is no ground existing to interfere with the order of the Addl. Collector.
5. Considering the arguments advanced and perusing the evidence on record, one position become absolutely clear that, it was this appellant who was responsible for both the seizures dated 3-4-1983 and 13-4-1983 and for neither of those seizures, the officers of the customs department have, directly or indirectly taken any part, except after the seizures were notified to them by the appellant.
6. It was the appellant and his patrolling party, which chased oil tanker MTS 3406, on 3-4-1983 and ultimately found the same abandoned and found three VCRs, which fact was reported to the officers of the customs at Porbandar by a wireless message, arranged for bringing the tanker to Bagvadar Police Station and handed over the said VCR to the customs authorities on 4-4-1983 alongwith a report dated 4-4-1983, which report is relied upon by the department even in the show cause notice. Again on 13-4-1984, the appellant received a written report at 2.15 A.M. from constable Jiva Menand, regarding finding of seven VCRs in one unoccupied room near Palkhada Bus Stand, went there immediately and seized them under the panchnama, between 3.40 and 4,30 A.M. and informed the customs officers on the very same day, pursuance whereof, the officers seized them. Appropriate entries in this regard have been made in the Police Station Diary, which he was required to maintain as per the law. Again, it was this appellant who produced both Shantigar Bawaji and Meraman Ala before the customs officers, after he himself recorded their statements. The statements by both these persons, recorded by the customs officers, are subsequent to the seizure of seven VCRs.
7. There is nothing brought on record to show that the customs officers had commenced further investigation in the matter on seizure of 3 VCRs on 4-4-1983, and has traced out Shantigar and/or Meraman or any other person in connection with the said seizure at any time prior to 13-4-1983, or that their intelligence section had gathered any information that there were more VCR brought in the said tanker, which had been removed prior to the surrender of 3 VCRs and oil tanker to the Customs Department.
8. With these facts duly established, examining the evidence brought on record and relied upon by the adjudicating authority to implicate the appellant, the evidence comprises of oral statement of the persons namely Shantigar Bawaji and Meraman.
9. Scrutinising their statements, what both of them have stated is that constable Jivabhai told them that the goods belonged to P.S.I. Jadeja. None of them say that they themselves had any talk with the appellant. They do not even say that they saw the appellant near the said seven VCRs when they were allegedly removed from the oil tanker and concealed elsesvhere. Their knowledge is based solely on what was allegedly told to them by constable Jivabhai.
10. The Customs officers have also recorded the statements of constables Jivabhai and Keshavbhai, under Section 108 of the Customs Act and both of them have categorically denied having told these two persons, anything about the goods belonging to the appellant.
11. Whatever Shantigar and Meraman have stated before the Customs officers inculpating the appellant, being based solely on what was allegedly told to them by constable Jivabhai, is more in the nature of hearsay evidence and not based on any personal knowledge. It is the basic fundamental of the law that the hearsay evidence can never be taken into consideration, much less for basing any conclusion. The same at the best can provide a corroborative evidence, if the person who made such a statement also testifies to the same. Here, however, such corroborative value also cannot be attributed to the same, as constable Jivabhai denies to have ever said so to these persons.
12. Basing of any conclusion on such statements, is, therefore, contrary to the established principles of law and cannot be sustained.
13. It may also be noted that if the goods really belonged to the appellant there could have been no reason for him to himself take the initiative and seize the same under a regular panchnama, by rushing to the spot in the very early hours of the morning, and also make entries in Police Station Diary even prior to actual seizures. Further, it was constable Jivabhai who initially reported the finding of seven VCRs and it was the same police constable Jivabhai, who on 3-4-1983, allegedly told both Shantigar and Meraman about the said goods as belonging to the appellant. If Shantigar and Meraman are believed, constable Jivabhai was knowing about appellant's interest in the said goods. It does not stand to reasoning as to why, under such circumstances, constable Jivabhai should file a written report, and that too, before the appellant himself.
14. It was only on the statements of Shantigar and Meraman that the customs officers knew that the appellant was involved and their statements were recorded only after the seizure. If the appellant really was in any way concerned or interested in the goods, there was nothing which could have prevented him from secreting and appropriating the same.
15. Both Shantigar and Meraman were produced by the appellant, before the Customs officers, as persons concerned. By that time, both had, in their statement before the police, implicated two police constables. If the appellant too, was involved, and both Shantigar and Meraman had abetted him as now alleged by them, then the appellant could have, very conveniently avoided producing them before the customs officers. The conduct of the appellant is thus contra indicative of his alleged involvement.
16. If at all any credence could be given to what these two persons have stated before both the Police and Customs authority, at the best, that can involve two constables.
17. The order of the Additional Collector holding the appellant liable to penalty under Section 112(b)(i) of the Customs Act, therefore, cannot be sustained.
18. Under the circumstances, the appeal is allowed. The order of the Additional Collector holding the appellant liable to imposition of penalty under Section 112(b)(i) of the Customs Act, and order imposing penalty of Rs. 2500/- is, therefore, set aside.