TMI Blog2014 (7) TMI 730X X X X Extracts X X X X X X X X Extracts X X X X ..... 010 - - - Dated:- 3-7-2014 - Dr. Manjula Chellur And A. M. Shaffique,JJ. For the Petitioner : Sri. K. Ramakumar For the Respondent : Sri. C. S. Gopalakrishnan Nair ORDER Shaffique, J. Following questions of law have been referred to this Court by the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench of Bangalore: 1. Whether the Customs, Excise Gold (Control) Appellate Tribunal (Appellate Tribunal for short), under the facts and circumstances of this case, is legally justified in finding the appellant guilty and imposing penalty of ₹ 15 lakhs under the Provisions of the Customs Act 1962 only on the basis of the retracted confessional statements of the co-accused? 2. Whether 'the Appellate Tribunal under the facts and circumstances of this case, is correct in finding the appellant guilty under the provisions of the Customs Act when the retracted confessional statements of the co-accused were not corroborated by any substantial and independent evidence either generally or in material particulars? 3. Whether the Appellate Tribunal under the facts and circumstances of this case, is justified in giving a finding that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty of ₹ 15 lakhs impose don't the appellant is reasonable or warranted under the facts and circumstances of this case? 2. The facts involved in this case would disclose that the Circle Inspector of Police, Nadakavu and party searched the residential premises of one N.K. Abdul Rahiman. 900 gold biscuits of foreign origin weighing 104 kgs. and 891 grams with 9 empty cotton jackets were seized and handed over to the Assistant Collector of Customs in terms of Mahazar dated 24.2.1989. The officers of Directorate of Revenue Intelligence seized gold biscuits of foreign origin from a Contessa Car on 25.2.1989, which was parked in the residential premises of K.V. Moosan Haji. On 26.2.1989, the Superintendent of Special Customs Preventive Unit, Calicut, seized currency of ₹ 4,37,550/- and one semi-automatic rifle from the house of one E.K. Sivanandan at Calicut. Several vehicles and articles were also seized during the aforesaid operations. Though the residential premises of the appellant was searched by the officers on 3.3.1989, no incriminating materials were recovered. Several other business premises were also searched and statements were recorded under Section 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned standing counsel for the Department would submit that none of these questions of law arise for consideration in this reference case. All the factual circumstances involved in the matter had been clearly considered by the original authority and such factual issues cannot be gone into in a reference case. 9. On a perusal of the original order, it is clear that the basis of imposing penalty on the petitioner is found on the statement given by the co-accused in the case. The first question to be considered is whether the retracted confessional statements of the co-accused can be the basis of the penalty. It is settled position of law that if the statements of a co-accused was corroborated with other materials, such statements can be the basis for imposing penalty on others. This is not a case in which there is lack of evidence. Several persons had spoken about the involvement of the petitioner in the aforesaid smuggling activity. Such statements, though retracted, cannot lead to a conclusion that the statements are baseless. Even if an accused retracted from the earlier statement under Section 108, unless sufficient materials are available to take on record that such sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... doe not arise for consideration. 12. It is contended by the learned senior counsel that the judgment in Naresh's case (supra) is distinguishable on facts and especially in the light of the judgment of the Constitution Bench of the Supreme Court in Haricharan Kurmi v. State of Bihar, AIR 1964 SC 1184. 13. This aspect of the matter had already been considered by the Tribunal. In the Constitution Bench judgment, their Lordships held that evidence of co- accused is a confessional evidence and the same can be used in order to corroborate the evidence which is already on record. In fact, the law on the point is very clear. It is settled position that retracted confession must be looked into with a greater concern unless the reasons given for having made it in the first instance or on the face of them falls. Once confession is proved to be satisfactorily obtained, any admission therein must be satisfactorily withdrawn or making of it explained as having proceeded from fear, duress, promise etc. 14. Having regard to the legal implications evolved from the aforesaid factual situation, it is clear that confession statement of co-accused can be treated as evidence, provided suff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the entire operation assisted by various persons in some capacity or the other. No statement could be recorded from Abdul Majeed and even when he appeared once before the Assistant Collector of Customs, S.C.P. Division, Calicut, he neve choose to give any statement or volunteered any information. But all the others in these proceedings have implicated his involvements and I have no hesitation to hold that he is the person directly connected with the smuggling of 25 jackets of gold biscuits which were actually seized. He was behind arranging the team for transporting the gold from the main vessel to the sea shore, transferring part of it from the sea shore to the house of Abdul Rahiman and also transporting another portion in the Contessa car parked in the compound wall of the house of K.V. Moosan Haji. I also hold him responsible for the illicit import of the Walkie Talkie found in the lorry and also the fire arm with ammunition found in the house of E.K. Sivanandan. When such facts are also appreciated and considered by two authorities, we do not think that the questions now raised has any legs to stand. 15. A contention was raised that the accused were arrested on 24.2.198 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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