TMI Blog1986 (10) TMI 236X X X X Extracts X X X X X X X X Extracts X X X X ..... and another Rs. 5,000/- under the Customs Act on the appellant, Smt. Usha. Besides these penalties, the Adjudicating Authority also imposed a personal penalty of Rs. 75,000/- under the Gold (Control) Act and another Rs. 75,000/- under the Customs Act on one Shri Raman Kumar @ Pandit with which we are not concerned. 2. Brief facts of the case so far as relevant for the purpose of these appeals are that acting on the intelligence information, the Customs Preventive Officers checked the Punjab Roadways Bus which left Amritsar at 2300 hours on 10-12-1977. On checking of the passengers, Shri Jaswant Rai appellant, a goldsmith of Khanna, Distt. Ludhiana was spotted-out, and as a consequence, he was asked to get down from the bus. Search of the appellant Jaswant Rai resulted in the recovery of 10 gold biscuits bearing foreign markings weighing 10 tolas each and 8 gold strips (folded without bearing any markings) of 10 tolas each which were concealed in a cotton cloth E.L.T. tied around his waist under the pants worn by him. Besides, two bus fare tickets for Ludhiana were also recovered from one of the pockets of his coat. On examination of the plastic bag, held by him, in his hand Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and imposed different personal penalties on them as stated above. 3. On the aforesaid facts, separate show cause notices were also issued to all the appellants asking them to show cause as to why the said gold biscuits and gold strips be not confiscated and personal penalty be not imposed upon them under the various provisions of the Customs Act. After the usual enquiry, the Adjudicating Authority vide its order-in-original No. 27/Cust/78, dated 15-2-1979 absolutely confiscated the said gold biscuits and gold strips under Section 111 of the Customs Act and also imposed different penalties on all the appellants under the Customs Act. Against this order-in-original also all the appellants went in appeal before the Central Board of Excise Customs. The Appellate Authority vide its order No. 33-37/1980 remanded the case for re-adjudication so far as the personal penalty on the appellants was concerned with a direction that the same be adjudicated after granting personal hearing and opportunity to cross-examine the witnesses as asked for. The Appellate Authority, however, upheld the confiscation of the gold seized as nobody claimed the same. On remand the Adjudicating Authority aft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and supported the impugned order. She also pointed out that from the copy of the judgment of Chief Judicial Magistrate, Amritsar it is clear that the appellant was prosecuted and convicted by the Chief Judicial Magistrate for committing the offence under Section 135 of the Customs Act and also for committing the offence under Section 85 of the Gold (Control) Act relating to the seizure of the gold and gold strips in question. She further pointed out that from the copy of the judgment of the Sessions Judge, Amritsar, it is clear that against the said order of conviction passed by the Chief Judicial Magistrate, Amritsar, the appellant filed the appeal and in that appeal there was no challenge to the conviction and the prayer was only that the sentence of the appellant be reduced to fine only. Accordingly, the conviction was maintained by the Sessions Judge, Amritsar in appeal and the sentence was reduced. 7. Shri M. Ganesan, learned Advocate for the appellant while elaborating his arguments submitted at the outset that the confessional statement of the appellant was obtained under torture as it was recorded in the Customs House. He further submitted that the same was retracted subs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocent person. From this, it is clear that the telegram was sent 8 days after the seizure of the gold that is to say, the confession was not retracted at an earlier opportunity but after lapse of 8 days. The contention of the appellant that during this period, he was in judicial custody and was released on bail on 19-12-1977 and, therefore, there was no delay in retraction has also no force. For, had it been a fact that the statement was recorded under torture nothing could have prevented the appellant from informing the authorities immediately through the Jail authorities even if he was in judicial custody. Further from the grievance made in the telegram as stated above, it is clear that the appellant has not said that he had signed the confessional statement under duress. On the other hand, it further deserves to be mentioned here that in the telegram as stated above, the appellant while retracting from his confession did not say that he was tortured by the Customs Authorities to make the confession but only said that false record, statements prepared, torture and nothing incriminating recovered. From the perusal of the confessional statement, it is clear that prima facie there w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of evidence and can be used only for the purpose of refreshing the memory as provided for under Section 159 to 161 of the Evidence Act. Moreover, we find that the Seizing Officers Shri D.K. Nagpal, Inspector and Shri A.L. Beri, Superintendent (Customs) were cross-examined at length. They had clearly stated in their cross-examinations that the gold biscuits and gold strips were recovered from the possession of the appellant. Why they would like to foist a false case on the appellant was not shown to us. For the same reasons, the other contention of the learned counsel for the appellant that the recovery memo was not prepared on the spot cannot also be accepted. The other contentions with respect to the recovery memo as stated above are also not of such a nature as to throw out the entire case of the department. The discrepancies as pointed out by the learned counsel for the appellant, in the statements of the witnesses may be due to lapse of time between the occurrence and the cross-examination of the witnesses. In Narotam Singh v. State of Punjab, A.I.R. 1978. S.C. 1542, their Lordships of the Supreme Court have observed - ........ Proof of guilt is sustained despite little infir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere that in her statement, dated 11-12-77 she admitted to have delivered the gold biscuits and gold strips to Shri Jaswant Rai. In her statement on 13-12-1977, she admitted that she received a telephonic message from her husband informing her about the arrival of a businessman from Khanna whom she knows, for collecting the goods. Telephonic enquiries about the arrival of the man from Khanna was made by her husband and the other person namely, Raman. Her husband, Shri Sudershan Kumar told her on telephone that the businessman of Khanna had left Khanna at 1400 hours and had, to go back on the same day by night bus. When she confirmed about the arrival of the businessman from Khanna at their residence, Shri Sudershan Kumar, the appellant and Raman arrived at their residence. Shri Raman delivered her a handkerchief telling that it contained 8 gold strips. The said handkerchief was given to Jaswant Rai appellant, who gave her three bundles containing hundred rupee currency notes which were handed over by her to Raman. After some time, the appellant Kishan Chand arrived at their residence and delivered 10 gold biscuits which she passed on to her husband who further handed over the same t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e basis of the confessional statement of the co-accused Smt. Usha is absolutely improper and unwarranted. We do not agree. Besides, the confessional statement of co-accused Smt. Usha, there is also other evidence on the record to connect the appellant with the offence involved in the case. We are aware of the well settled legal position that self-exculpatory statement of accused should not be taken into consideration against co-accused. We are also aware of the fact that a confessional statement of co-accused which is self-incriminatory and also implicates the co-accused is not evidence in the ordinary sense of the term as defined in Section 3 of the Evidence Act and, therefore, it cannot be made a foundation of a conviction and can only be used in support of other evidence. In the instant case, the confessional statements of Smt. Usha appellant who is no other than the wife of the appellant is not only self-incriminatory but also implicates the appellant and this self-implication on the part of Smt. Usha appellant is the guarantee for the truth of accusation against the co-accused appellant. In the instant case, there is a recovery of the 10 gold biscuits with foreign markings whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d delivered the goods and that after some time he again went to Darshan s house and collected the sale proceeds of the 10 gold biscuits. This statement finds corroboration in material particulars from the statement of Smt. Usha. The contention of the learned counsel for the appellant that since the said confessional statement of the appellant was recorded in English and not in Hindi and that the contents of the statements were not made known to the appellant in Hindi is devoid of any merits when we turn to the cross-examination of Shri D.K. Nagpal, Inspector, Central Excise, who recorded the said confessional statement of the appellant. In cross-examination of Shri D.K. Nagpal, the appellant did not challenge the veracity or the voluntary nature of the confessional statement except a question that no time of writing the statement has been mentioned therein to which Shri Nagpal replied that this can be ascertained from the records. No question or even suggestion was put to Shri Nagpal to the effect that the signatures were obtained under duress or that it was not read over to the appellant. Even during the course of arguments the learned counsel for the appellant could not point out ..... X X X X Extracts X X X X X X X X Extracts X X X X
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