TMI Blog1989 (12) TMI 158X X X X Extracts X X X X X X X X Extracts X X X X ..... d official papers and a pair of dress. After examination of the briefcase carried by the appellant and also after check of the other two passengers in the presence of panch witnesses, Indian currency of Rs. 1,42,000/- was recovered from the appellant s briefcase, while Rs. 50,000/- was recovered from the brief case of Shri Mohammed Kulty. Nothing was recovered from the third passenger. As per the panchnama drawn for the recovery of the currency, it is stated that all the three of them were questioned by the Customs Officers in the presence of the panch witnesses as to the contents of the briefcases, which they were carrying, to which they replied that their briefcases contained only official papers, personal files and personal dress. As the Customs officers were not satisfied with their reply, they were asked to open their brief cases. From the Samsonite brown coloured brief case carried by the appellant Indian currency of Rs. 1,42,000/- was recovered along with other documents and from the brown coloured Corona brief case carried by Shri Mohammed Kutty Indian Currency of Rs. 50,000/- was recovered. Thereafter, the statements of the appellant as well as Shri M. Kutty were recorded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant s letter dated 3-10-1981. Though Shri M. Kutty who was found with cash of Rs. 50,000/- has implicated the appellant, he was not made available for the cross-examination. It was the contention of the advocate that the appellant is doing business and running a factory in plastic materials and the money has been drawn on that very day from the Syndicate Bank by the appellant himself personally and this was intended to make a draft in favour of the State Chemicals and Pharmaceuticals Corporation for purchase of raw material. Since the payment of money was effected only at 11.30 A.M. by the bank the appellant did not have time to go to his house to deposit the cash prior to his departure to Dubai, since he has already been delayed and he has informed the house about the departure to Dubai while leaving the house. The fact that the money has been brought from the bank has not been rebutted. It is, therefore, the contention of the learned Advocate that, the money which was intended for the purpose of business in regard to the purchase of raw materials had to be carried to the airport because of the urgency. His intention was to hand-over the same to his uncle to whom he phoned up. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y in his house at Bandra. He had his own vehicle. He was also accompanied by his driver and nephew right up to the airport. His explanation that he cannot trust his nephew for handing over the currency but only waiting for his uncle, does not carry conviction. He also submitted that there is evidence to show that both the tickets of Shri M. Kulty and the appellant were arranged at the instance of the appellant s brother. It is also admitted that Shri M. Kutty has business connection with his brother. Shri M. Kutty has also admitted having received Rs. 50,000/- from the appellant. He also argued that even if the panch witnesses retracted, it does not vitiate the seizure. In this case it is not disputed that the currency was seized from the possession of the appellant. Shri Mondal also argued that the acquittal in Criminal court cannot be binding on the departmental, adjudication proceedings, which are independent in nature. Finally, he argued that the appellant was to establish a factory in the Middle-East and for that purpose he was apparently carrying the huge quantity of Indian Currency. He had mala fide intention in exporting the huge quantity of currency illicitly. The appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prohibition, are liable to confiscation. In this case, the fact that the appellant had carried the Indian currency in his brief case and walked in the Customs area for the purpose of boarding a foreign flight remains undisputed. Hence, the Indian currency which is a prohibited item for export becomes liable to confiscation under Section 113(d) of the Customs Act. His behaviour as narrated above viz. drawing the money from the bank and instead of depositing it at home or with his nephew and having chosen to walk in the Customs area after crossing immigration, positively indicated that he was to take them out of India. In the adjudication proceedings it is observed that the advocate on behalf of the appellant had contended that even if he had taken the currency out of India he would have brought it back. This aspect of his argument has also been considered by the Additional Collector and his finding was that if that be so by bringing back the Indian currency he would have committed an offence on importation. Be that as it may, the fact that the appellant had come into the Customs Examination Hall with this currency and was to board a foreign flight remains undisputed. It clearly poi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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