Customs, Excise and Gold Tribunal - Mumbai
Joaquim Alemao And Ors. vs Commissioner Of Customs on 13 February, 2004
Equivalent citations: 2005(188)ELT231(TRI-MUMBAI)
ORDER Moheb Ali M., Member (T)
1. Costao Fernandes. a junior officer in Marmagoa Custom House gathered secret intelligence that a huge quantity of gold was going to be smuggled in to the country. The landing would take place near Fartade beach, one of those lonely beaches of Goa.
2. He decided to form a one-man-army to fight the smugglers of Goa. If people think that one-man-armies are the figments of fevered imagination of Hollywood producers, they are very wrong. Costao is a real figure.
3. Churchill Alemao started his life as tea boy and rose to become the Chief Minister of the state of Goa. Democracy at its very best. Ciabro Alemao, Joaquim Alemao, late Alvarnez Alemao, all brothers of Churchill had equally humble beginnings but rose to become the rich and famous of Goa. Capitalism and its virtues.
4. Anthony Jon Rodrigues is an employee of late Alvarnez. He works as a tax collector. He did not rise to become anything. He was only 29 years old. Still young.
5. Subhash Pandey, a non-descriptive person works for a construction company engaged in constructing a beach resort called Verca Beach Resort close to Carmona Beach. He drives a Maruti car belonging to one of Churchill's brothers. He did the vanishing trick after the incident and surfaced to reply to the show-cause notice issued to him amongst others. These then are the dramatists personae.
6. Churchill, Ciabro, Joaquim, Rodrigues, and Subhash Pandey are some of the persons penalised Under Section 112 (a) and (b) of the Customs Act ranging from Rs. 50 lakhs to Rs. 5 lakhs by the Commissioner. Hence these appeals by them.
7. We may now narrate the events that lead to adjudication proceedings. Briefly though.
8. On the night of 15th May, 1991, the one man army was keeping a nightly vigil on Fartade Beach from a secret place. He was pointedly asked during his cross-examination as to where the secret place was. He refused to divulge it. Some places have to remain secret. They would be useful for other officers to keep similar vigils if they are so inclined. Costao observed Joaquim, Ciabro, and Alyarnez and their associates coming to the site of construction around 8:30 pm in various vehicles on that night. They proceeded towards the beach and after a while left the place. Nothing much happened that night. The officer continued to keep his lonely watch. Next day morning (16th May, 1991), he saw Churchill, Ciabro, and Joaquim and two to three others visiting the site of construction. Costao thought that no smuggler however influential would dare to land contraband goods in broad daylight so he went home. He was wrong.
9. Around 10:30 am, he received a call that a great deal of activity was going on at Carmona beach. The lone ranger hurled himself in the direction of the beach on his motor cycle. He noticed Ciabro standing near Luis Bar close to the beach. At that time, a white Contessa car (hereafter referred to as the "car") bearing number "GA-02-A-4567" and a Maruti car bearing number plate "DAC 5492" were parked near the beach. Costao saw four heavy battery-type boxes being loaded in the car under the supervision and directions of Alvavnez. He also saw one such box being loaded in the Maruti car driven by Subhash Pandey. Costao decided to follow the vehicle which had more boxes and therefore, went after the car. On the way, he instructed a good Samaritan to inform his wife (Costao's) to telephone the Customs office about his movements and proceeded in pursuit of the car.
10. Costao intercepted the car at Verca village, jumped into the front seat and requested the driver, Alvaniez to stop the vehicle (such politeness). The latter did not oblige, there was a scuffle, a knife was pulled by Alvaniez and in the ensuing struggle, Alvaniez was grievously hurt. The officer took out the ignition key, opened the dickey, managed to open one of the battery-type boxes, pulled out a gold biscuit, showed it to the crowd which had gathered by then and requested for help and for some water. Neither of which was given. So he threw the gold biscuit back into the dickey, locked it, deflated the tires of the vehicle, threw the key away, and walked away in his blood-stained clothes in the general direction of one Mrs. Antonite's house (these Customs officers live rather dangerously). Meanwhile, Alvarnez was wasted.
11. It is worthwhile to remember that the above narration of events is solely based on the statement of Costao Fernandez recorded Under Section 108 of the Customs Act and the affidavit filed by him before us. There are however witnesses to the struggle in the front seat of the car and to the fact that Costao was attempting to open the dickey. After he left the scene, he was not privy to the events that took place later. There were 3 witnesses who saw the events that took place after Costao's departure from the scene. The following narration is based on the evidence tendered by the three, Vincy Soares, Baptista Fernandes, and Sebastian Fernandes. Their statements were recorded Under Section 108 of the Customs Act.
12. Within 10-15 minutes of the departure of Costao, the Churchill brothers arrived on the scene, the first to come it appears is Joaquim Alemao and his associates. They had one look at the driver and proceeded to force open the dickey, removed at least two battery-type boxes from the dickey one of which was carried away by one Roy Miranda along with another person and the second one by Rodrigues in the general direction of Verca village. There are witnesses who saw these persons carrying the boxes on the scooters, one of which was later traced and seized. The said witnesses say that Ciabro and Churchill were also present when the boxes were being removed from the dickey. The brothers also attended on the wasted person and took him away from the car. The three also say that Costao identified himself as a Customs officer after he got down from the front seat on blood stained clothes and was trying to fiddle with the dickey before he left the scene. Thus there appears to be some discrepancy between Costao's version and what of the witnesses. We may recall that Costao in his statement and in the affidavit filed before the Tribunal says that he took out a gold biscuit from the battery type box and showed it to the crowd, whereas the witnesses say that they have seen him only fiddling with the dickey. The Commissioner relied on the version given by these three persons even though they did not turn up for cross examination before him. The Churchill brothers themselves have denied removing any boxes from the dickey of the car.
13. During the course of investigation, the Customs officers recorded statements of several persons. There are witnesses to the fact that two battery-type boxes were carried on the scooters. The owner of Luis Bar testified that Ciabro Alemao came near Carmona beach around 10:30 am on 16.5.1991 and went towards the beach before he left the place, These versions coupled with the statement of Costao Under Section 108 were the main planks on which the Commissioner's case rested.
14. A side show was going on when the Customs were investigating into the alleged offence committed by the Churchill brothers and others. Costao Fernandez was being prosecuted for killing Alvarnez, the investigation into which was done by the Criminal Bureav of Investigation (CBI). The CBI's version was that Costao killed Alvarnez- because of some old grudge arising out of some reward money and the story that Costao was intercepting a car laden with gold was false; that there was no gold in the car and that Costao did not intercept the car under the powers vested with him Under Section 106 of the Customs Act. Section 155 of the Customs Act affords protection to a Customs officer against civil and criminal liabilities if such an officer is involved in discharging his functions entrusted to him under the Customs Act. The officer was claiming this protection before the trial court. The court rejected Costao's plea and held that there was no evidence to say that there was any gold at all in the can. The court committed him to the sessions to undergo trial for an offence punishable Under Section 302 of the Indian Penal Code (IPC).
15. Costao did not succeed in appeal against this order. The matter was pursued in the Supreme Court. The apex court observed thus "A valiant and a dutiful Customs officer risked his life to fight the mighty underworld of smugglers unarmed and single-handedly. And see! He succeeded after hard chase on his motor cycle - smuggler being in a car. The result was smuggling of gold worth Rs. 8.00 crores was prevented. The reward? He has been made to face a prosecution Under Section 302 of the IPC at the behest of the CB1 who is brought hurriedly and for undisclosed reasons to investigate..." The apex court examined the provisions of Section 106 which empower an officer of customs to stop and search conveyances and held that Costao was attempting to stop a vehicle in which contraband gold worth Rs. 8.00 crores was being carried. The Supreme Court after passing some strictures against all concerned quashed the prosecution against Costao and allowed his appeal before it. This decision of the Supreme Court was reported (82 ELT 433 S.C) and was passed on 20-2-1996. The impugned order of the Commissioner was passed on 14-10-1994. The evidence before the Hon'ble Supreme Court and the Commissioner was identical. The Supreme Court concluded that there was gold worth Rs. 8.00 crores in the car intercepted by Costao. Such a conclusion was arrived at on the basis of the record maintained in the Custom House, the statement of Costao Fernandes and the statements of persons who saw the boxes removed from the dickey of the car. The apex court was aware that except Costao, nobody else saw the gold nor any gold was seized subsequently. Despite that, the court was satisfied that there was gold in the battery-type boxes kept in the dicky. This Tribunal has the benefit of the decision of the apex court, the Commissioner did not.
16. The Commissioner built his case against Churchill, Ciabro, Joaquim, Rodrigues and Subhash Pandcy who are the appellants before us on the basis of the version given by Costao and Vincy Soras, Baptista and Sebastian Fernandes. The last three named did not appear for cross-examination He penalised the persons Under Section 112 (a) and (b). and confiscated the car, the Maruti, and a scooter all three vehicles having been used in the carriage of smuggled goods Under Section 115 (2) of the Customs Act. Hence, these appeals.
17. The learned counsel for the appellants assailed the impugned order on several counts. They are briefly summarised below.
18. Principles of natural justice are violated in as much as the key witnesses (Vincy, Baptista, and Sebastian) were not produced for cross-examination; the Commissioner solely relied on the testimony of Costao; the Commissioner erred in not permitting the appellants to lead evidence unearthed by the CBI; that conflicting versions came out during cross examination of certain witnesses and so their earlier versions should not be relied upon; no gold was seized; that Veni Fernandes and Francis Corea admitted during cross-examination that Costao had not taken out anything from the dickey of the car; that penalties are not leviable on the appellants on the basis of hearsay evidence when no gold was seized; that the CMM discharged the appellants when the department prosecuted them; that the department did not succeed in appeal against this decision even in the highest court; that in a case where the court held that there was no prima facie case the adjudicating authority cannot conclude that an offence has been committed under the Customs Act and that the department's version of events was solely based on the testimony of one witness without corroboration. He pleaded that the penalties and confiscation should be set aside.
19. The learned counsel Shri Sethna appearing for the department argued that (he Commissioner was right in relying on the version of Costao; that the Commissioner made every attempt to make Vincy, Baptista, and Sebastian available for cross-examination and their failure to obey the summons is not fatal to the case; that the Commissioner rightly relied on the provisions of Section 138 B of the Customs Act which lays down that prosecution can rely on the version of a witness whose presence cannot be ensured without considerable expense and time; that the Commissioner observed that these 3 witnesses were not in India and that it was impracticable to ensure their presence; that the conduct of the appellants coupled with the statement of Costao strongly suggests that there was something really valuable in the dickey of the car; that according to intelligence gathered, the conversation between Costao and Alvamez that took place in the front seat of the car as reported by Costao and the unequivocal statement of Costao that he had seen the gold in the battery-type box indicate that what was removed from the dickey was gold; that the conflicting versions given by certain witnesses do not demolish the case of the department that Alvatnez carried the gold from Carmona beach and the same gold was removed by the Churchill brothers; that Subhash Pandey carried one battery-type box in his Maruti car was evident from the statement of Costao; that Subhash Pandey made himself scarce after May 16, 1991 which only indicates his guilty mind; that the Commissioner was right in imposing a penalty on him; that Rodrigues was one of the persons who carried away one battery-type box and therefore was liable to penalty Under Section 112 (b) of the Customs Act.
20. He pleaded that the Commissioner has imposed penalty Under Section 112 (a) and (b) as the appellants not only abetted in the act of smuggling of gold but also dealt with it after it was smuggled; that there is no reason as to why the evidence tendered by Costao should not be relied upon for the purpose of penalising the appellants; that a single reliable witness is sufficient to come to a conclusion; that corroboration is not required in every case; that Section 134 of the Evidence Act has not laid down particular number of witnesses that are required to prove any fact; that evidence has to weighed and not counted (AIR 1957 S.C. 614 Volume 44 C91, April 12th ,1957), that Costao took out the gold from the battery-type box has come out clearly in his statement before the Customs officers and in the affidavit filed before the Tribunal; that no gold need to be seized or confiscated for the purpose of imposing a penalty; that the appellants (except Subhash Pandey) implicated themselves by removing the boxes from the dicky even as they came to attend on injured Alvarnez; that such boxes were removed after forcing open the dicky of the car is an indicator that something very valuable was kept in those boxes; that the fact that the appellants were discharged by the trial court has no bearing on the departmental proceedings; that the Supreme Court while deciding the criminal appeal filed by Costao has clearly come to the conclusion that the Churchill brothers and their associates were attempting to smuggle gold worth Rs. 8.00 crores and therefore the Tribunal cannot come to any other conclusion in the face of the fact that evidence before the Supreme Court is identical to the one presented before the tribunal; that in the case of Subhash Pandey, the same facts emerge except that no one has seen the contents of the battery-type box carried away by him in his Maruti car; that the conclusion reached in respect of four boxes should be applicable to the one carried away by Subhash Pandey; that the appellants have been rightly penalised for their role in smuggling of gold and its subsequent handling.
21. In the rejoinder, the learned advocate for the appellants argued that the department cannot draw any support from the observations of the Supreme Court in the criminal appeal filed by Costao. The decisions in the following cases were relied upon: A1R 1968 S.C. 647; AIR 1976 S.C. 1455; AIR 76 S.C. 1766; AIR S.C. 1384; AIR 83 S.C. 1155; AIR 85 S.C. 218; AIR 89 S.C. 381; AIR 1993 S.C. 43; AIR 1990 (26) ECR (S.C); (1987) SCC 213.
22. The ratio of these decisions, broadly speaking, is that any decision even a locus-dassicus is an authority for what it decides. It is impermissible to extend the ratio of a decision of a case involving identical situations factual and legal without a close examination of the rationale of the decision which is cited as precedent. The Supreme Court also held that it is neither desirable nor permissible to pick out a word or a sentence from a judgment divorced from the context of the question under consideration. The learned advocate argued that before the Supreme Court the issue was whether Costao was intercepting a car laden with gold and if so, whether his action in killing occupant entitles him for protection Under Section 155 of the Customs Act. The proceedings before the Commissioner are related to the provisions of the Customs Act. Thus, the Supreme Court was analysing whether or not a crime has been committed distinct from the offence under the Customs Act and therefore, the observations of the court cannot be borrowed to establish an offence under the Customs Act.
23. The learned senior advocate for the department was permitted by this bench to offer his comments on the case law filed by the appellants towards the end of the proceedings. He contended that the Supreme Court in the criminal appeal before it was dealing with the same matter pertaining to the smuggling of gold. The apex court came to the conclusion that Costao was attempting to prevent smuggling of gold worth Rs. 8.00 crores. The court was aware that no gold was seized and the only person who had seen the gold was Costao himself but still came to the conclusion that gold was being smuggled. The department according to him, was not applying the ratio of the decision of the Supreme Court in this case but was only arguing that what had been established to be a fact before the highest court need not be freshly examined by a lower judicial forum such as this Tribunal. He further contended that the evidence of a single trustworthy witness such as Costao is sufficient to establish a fact without further corroboration.
24. We have heard both sides extensively. There is no gainsaying the fact that the evidence m this case is only circumstantial. The appellants* contention that the evidence tendered by Vincy, Sebastian, and Baptista should not have been relied upon as these witnesses were not produced for cross examination is carefully considered by us. The Commissioner made every attempt to summon these persons repeatedly. He was informed that these persons were living abroad. The Commissioner observed that Section 138 B of the Customs Act permits the prosecution to rely on the statements given by the witnesses if such witnesses cannot be produced without considerable expense and time. Though these provisions are applicable in a case of prosecution under the Customs Act, we see no reason as to why the same principle should not apply in the proceedings before an adjudicating authority. These persons clearly stated that the Churchill brothers and Rodrigues removed the boxes from the dickey. Costao saw the boxes being put in the dickey at Carmona beach. The car was intercepted for the first time only in Verca village. There is evidence in the form of the panchnama drawn by the police after the incident to the effect that the dickey of the car was broken open. The Churchill brothers admit that they had visited the scene of the accident on May 16lh, 1991 around 1 p.m. It is also a fact that the boxes in the dickey were not found by the police later. In the light of these events, it is safe to conclude that the battery-type boxes were in the dicky, that they were removed from there and that no one else could have removed (hem without (he consent of the owner of the car. It has come on record that the car belonged to Churchill Alemao. We agree with the Commissioner's contention that cross-examination in quasi judicial proceedings is not essential in all situations.
25. The circumstances under which the battery type boxes were removed clearly indicates that the boxes contained something very valuable. Nobody would have bothered to remove some trash from the dickey in such a hurry when a grievously injured person was lying in the front seat of the car. It still remains to be seen whether the boxes contained gold. The Commissioner relied on the version given by Costao that he had opened one of the battery-type boxes, took out a gold biscuit and showed it to the crowd. He also relied on the statement of Costao where he narrated the conversation between him and Alvarnez. The latter seemed to have said that he was carrying gold and that he was prepared to share it with Costao. The Supreme Court also believed that gold worth Rs. 8.00 crores was being smuggled in the car. The evidence before the apex court is no better or worse than what we have before us in this regard. It is therefore safe to rely on the finding of the apex court that the car was carrying gold. During the cross-examination, the learned advocate for the appellants asked Costao as to how he knew that what he handled was gold in the absence of any chemical analysis of the metal. Costao replied that he knew it was gold out of his experience. When we agree that something valuable was removed from the dickey of the car there is no reason for us to disbelieve that what Costao handled was gold.
26. We have considered the contention that since the trial court acquitted the appellants for lack of evidence; the departmental proceedings should also result in such acquittal. We are unable to agree. Appreciation of evidence in departmental proceeding stands on a different footing. The Bombay High Court in the case of Cyrus Nazar Kolah v. UOI (1988 (37 ELT 515)) held that acquittal in a criminal proceeding cannot be a ground for setting aside a penalty imposed in departmental proceedings.
27. On the issue that the Commissioner relied on the uncorroborated evidence of Costao for coming to a conclusion that the boxes contained gold, we observe that the learned advocate for the department has rightly pointed out that it is not necessary under the Evidence Act that every statement of a witness has to be corroborated to establish a fact. Costao all along maintained that he saw the gold in the battery-type box. When he was cross examined before us by the appellants he maintained the same version. He was allowed to file an affidavit as to the facts by the Hon'ble High Court of Bombay. We have no reason to disbelieve the version given by Costao. We observe that the affidavit itself is based on the contemporaneous record maintained in the Marmagoa Custom House. The theory that there was no gold at all was debunked by the Supreme Court. A single trustworthy witness can establish a fact. It is not necessary that a crime has to be witnessed by many in order to result in a conviction. In a different context the Supreme Court in the case of K.I. Pavunni v. Assistant Collector, Cochin (1997 (90 ELT 241)) held that a person's evidence recorded Under Section 108 can be relied upon even when he is an accused in that case. Costao tendered his evidence Under Section 108 of the Customs Act and his testimony can be relied upon even without any corroboration.
28. There is enough circumstantial evidence to indicate that Churchill, Ciabro, Joaquim, and Rodrigues indulged in acts of commission and omission rendering themselves liable to penal action Under Section 112(a) and (b) of the Customs Act. The Commissioner while imposing a penalty has taken note of the fact that only one battery type box was opened by Costao and gold was found in it. He confiscated all the boxes Under Section 11 1(d) of the Customs Act in the light of evidence tendered before him.
29. In regard to penalty imposed on Subhash Pandey who according to Costao had driven the Maruti car in which one battery type box was kept, we observe that this appellant did not respond to the summons when the investigation was being conducted. If circumstantial evidence establishes that the four battery type boxes in the car contained gold a different conclusion cannot be arrived at in respect of the fifth one which was carried by Subhash Pandey. We take note of the fact that Costao saw five boxes landing at Carmona beach. It is perhaps illogical to assume that the fifth one carried by Subhash Pandey did not contain gold on the specious plea that no witness testified that box contained gold. What is true of the four is true of the fifth. Subhash Pandey rendered himself liable to penal action Under Sections 112(a) and (b) of the Customs Act as a person who abetted in smuggling and as one who carried the smuggled gold.
30. The Commissioner confiscated the vehicles in which the alleged gold was carried Under Section 115 (2) of the Customs Act. No serious challenge is made against it. The liability of the vehicles to confiscation has to be upheld once we hold that the boxes contained contraband.
31. The Commissioner imposed a penalty of Rs. 50 lakhs on Churchill Alemao, Rs. 30 lakhs on Joaquim Alemao. Rs. 15 lakhs on Ciabro Alemao and Rs. 5 lakhs on Anthony Jon Rodrigues, Rs. 5 lakhs on Subhash Pandey for their various acts of commission and omission Under Section 112(a) and (b). While doing so the Commissioner analysed the role of each of the persons. He holds that these persons not only handled the contraband but also took active part in smuggling. That's the reason why he cites both Sections 112(a) and (b) of the Customs Act. We do not see any infirmity in his finding.
32. The appeals are accordingly rejected.