TMI Blog2020 (10) TMI 71X X X X Extracts X X X X X X X X Extracts X X X X ..... ee of evidence so as to establish the offence under Customs Act, 1962 in adjudication proceedings. We find that Shri Mohammad Altaf has involved himself in the act of smuggling of red sanders. Ongoing through the facts of the case, we are convinced that Shri Mohammad Altaf has played a pivotal role in the smuggling of red sanders. He has not only negotiated with the suppliers, the middleman, the exporters and the logistics persons in the export of red sanders but also has invested certain amount in the business - The Advocate representing Shri Mohammad Altaf pleaded that there is some discrepancy in the amount stated to have been invested by Shri Altaf. Shri Altaf is alleged to have invested ₹ 50, 00, 000/- as per his own statement whereas Shri Meghani reported the same to be ₹ 12, 50,000/-. However, this goes to prove that Shri Mohammad Altaf has invested certain amount with a view to have pecuniary gain in the business. The retractions made by Shri Altaf have no substance and have been rightly held to be an afterthought by the Adjudicating Authority. The role played by Shri Mohammad Altaf is evident in the case and looking into the fact that he is a responsible off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seized on 05.04.2013. Statements of various persons, including S/ Shri Mohammed Altaf (on 09.04.2013), Piyush Meghani, Ali Imran Saifullah Khan (on 30.4.2013) were recorded. Wild Life Crime Control Bureau (WCCB), Ministry of Environment and Forests, Government of India, vide their Report No. C-13011/3/ 2009/13/Vol. 5175 dated 22.04.2013, confirmed the cargo to be Red Sanders (Pterocarpus Santalinus) is listed in Appendix II of Convention of International Trade of Endangered Species (CITES) of Wild Flora and Fauna and the export of the same is prohibited under Chapter 4A, S. No. 154 of the Current Export Policy . A Show Cause Notice bearing F. No. DRI/MZU/C/INV-12/2012-13/9571 dated 01.10. 2013 was issued by the Additional Director General, DRI (MZU), calling upon, inter alia both the Appellants, the persons concerned to show cause as to why 12.295 MT of Red Sanders valued at ₹ 1.22 Crores seized on 05.04.2013 should not be held liable for confiscation under Section 113 (d) (f) (g) (h) and (k) 113 of Customs Act, 1962 and as to why penalty should not be imposed on both the Appellants under Section 114(i) of the Customs Act 1962. Commissioner of Customs Nhava Sheva, vide impugn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2014 requested for another date and cross examination of S/Shri Piyush Meghani, Shaikh Mohammed Arif, Ali Imran Saifullah Khan, Nabi Ahmed Shaikh, and Bhavin D. Meghani. He submits that Shri Ali Imran Saifulla Khan retracted his statement dated 30.04.2013. 2.1. Shri Ali Imran Saifulla Khan retracted his statement dated 30.04.2013 on 02.05.2013 and filed replies dated 20.12.2013 and 07.10.2014 3. Learned Advocate submits that the Commissioner mainly relied upon the retracted statements of the Appellants; statements, statements of conoticees S/Shri Piyush Meghani, Shaikh Mohd. Arif Abdul Jabbar Nabi Ahmad Shaikh; (Para 4.13); statements of S/Shri Sachin Narayan Waghmare, Mahendra Kumar Tiwari @ Guddu, AnshumanPandey, Shailendra Pandey, P. Subramanium, Ramani kandan Pichikanu, P.D.Kotwal, Mohit Agarwal and Shaikh Abdul Kadar @ Salim and Call records of 9619811923, 7874606602, 9833896565 8800373512 allegedly used by S/Shri Mohd Altaf, Piyush Meghani, and Deepak Joshi Gangi Reddy respectively. 4. It was alleged that Mohd. Altafplayed key role as evident not only from his own confessional statement but those of his co- conspirators. Piyush Meghani, Shaikh Mohd. Arif Abdul Ja ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Para 5.4 to 5.8 of the order) are not corroborated except by the unsubstantiated statement of Shri Mohit Agarwal, a fellow officer perhaps under pressure by senior officers of DRI; there is no evidence of ownership use of the telephone no.9619811923 by the Appellant Mohd. Altaf; the Appellant never left the station to go to Hyderabad in November 2012as recorded in his statement; the alleged investment of ₹ 50 lakhs to the Appellant with Shri Piyush Meghani by taking loan from Salim recorded in the statement of the Appellant is not corroborated by Salim and Piyush Meghani and that the request of the Appellant to cross examine the persons who incriminated the Appellants has been summarily rejected by the Commissioner. (iii). the other persons like S/Shri Sachin Narayan Baghmare, Mahendra Kumar Tiwari@Guddu, Anshuman Pandey, Shailendra Pandey, P. Subramanian, Ramanikandan Pichikanu, P.D. Kotwal who dealt with goods by filing the Shipping Bills, booking of container and other shipping work have not incriminated the Appellant. (iv). Jayraj Sheth and Ganesh Jayaswal named by P. Subramanian, Ramnikandan Pichikanu and others have not been interrogated even though their telepho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No investigation to confirm borrowing by Piyush from S.KapoorJewellers and his bank record is made by DRI. (vii). No arrest is made in the case in such a big case of alleged smuggling of Red Sanders. (viii). the persons like S/Shri Sachin Narayan Baghmare, Mahendra Kumar Tiwari@Guddu, Anshuman Pandey, Shailendra Pandey, P. Subramanium, RamanikandanPichikanu, P.D.Kotwal who dealt with the Shipping Bills, booking of container and other shipping work have not named the Appellant. (ix). Shri Jayraj Sheth and Ganesh Jayaswal named by P. Subramanian, Ramnikandan Pichikanu and others have not been interrogated even though their telephone no. was available; no investigation is made in respect of exporting firm M/s Kay Creative Rugs despite telephone Nos, Bank account and address available with the DGFT website; (x). No penalty is imposed on Ganesh Jayaswal even after recording his complicity for reasons known to the Commissioner. (xi). DRI has deliberately not examined Deepak Joshi despite his petition in the high Court admitting everything about the case and without any basis the Commissioner also records that his story is not reliable. 9. The Appellants rely upon the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5, did not charge Shri Mohammed Altaf and Shri Ali Imran Shafiullah Khan due to absence of any cogent and legal evidence revealed during investigation. However, DRI, vide their letter dated 07/01/2020, clearly indicated that though a complaint has been filed under Section 132,135 of the Customs Act, 1962 against all persons involved in the smuggling of Red Sanders including Shri Mohd Altaf and no final decision is yet made by the Court. 13. Learned Authorised Representative further submits that Shri Mohit Agrawal categorically stated that the mobile number 9619811923 was being used by Shri Altaf Mohammed who was at that time working with him in Customs Marine and Preventive Wing, Mumbai; though Shri Altaf had sought cross examination of various other co-accused, he did not ask for the cross examination of Shri Mohit Agrawal; this clearly shows that Shri Mohd Altaf was using the mobile phone and hence did not challenge the facts corroborated by Shri Mohit Agarwal. 14. Learned Authorised Representative submits that it is pertinent to mention that Shri Mohd Altaf did not appear, in response to further summonses on 25/06/2013, 17/07/2013 and 16/08/2013, citing evasive replies; th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, I find that, Mohammed Altaf in his statement recorded on 09.04.2013 under Section 108 of the Customs Act inter-alia admitted that he met one Gangi Reddy while travelling from Mumbai to Andhra Pradesh, who told Altaf that he is a supplier of Red Sanders and was looking for a buyer in Mumbai; that Gangi also gave Phone Number of Piyush Meghani and asked him to verify his antecedents to check whether he is interested in smuggling of Red Sanders; that he met Piyush and enquired whether he interested in smuggling activity; thereafter Altaf met Gangi Reddy and Piyush in Navi Mumbai in December, 2013 and hatched a plan to smuggle Red Sanders; that he knew Deepak Joshi, CHA who used to clear Carpet consignments from Nhava Sheva; that Altaf took him into confidence and enquired about smuggling of Red Sanders; that Deepak Joshi agreed to help in clearing the cargo of Red Sanders I find that, Piyush Meghani in his statement recorded on 15.04.2013 under Section 108 of the Customs Act, 1962 inter-alia stated that he had arranged the overseas buyer for Red Sanders in the instant case at the instance of Mohammed Altaf; that Mohammad Altaf invested ₹ 50,00,000/- for procurement of Red San ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rating with the investigating agency, she informed the investigating agency about her and her husband's un-willing ness to report to the investigating agency on various alibis. In view of this, I find that even though Shri Mohammed Altaf claimed that he is a sincere officer and made first case of averting smuggling of Red Sanders in M P Wing, his repeated avoidance to appear before the investigating agency on flimsy grounds raises enough doubt about his shying away from the investigation with ulterior motives. The evidence, in the form of statements of co-conspirators, call records of Mobile No. 9619811923 used by Altaf and his voluntary statement recorded under Section 108 of the Customs Act, 1962, indicate that Mohammed Altaf was very much involved/actively participated in the alleged act of smuggling of Red Sanders out of India, which renders himself liable for penal action under Section 114 of the Customs Act, 1962. 17.2. In respect of Shri Mohammed Altaf, finings of Learned Commissioner are as follows. Ali Imran Shafiullah Khan during his statement recorded under Section 108 of the Customs Act, 1962 voluntarily stated that he met Mohammed Altaf through Arif in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sted about ₹ 70,00,000/- for procurement of Red Sanders; the amount of ₹ 1,70,00,000/- was used to procure about 12 MT of Red sanders; the Red Sanders was procured at the rate of about ₹ 1350/- per Kg. and was sold in the international market at about US$ 60 to 65 per Kg.; he arranged the above amount of ₹ 50,00,000/- in cash from Sheikh Salim, who was in the business of manufacturing caps and doing embroidery on garments, and was a distant cousin of his wife, on interest basis; it was agreed upon that he would pay him ₹ 5,00,000/- more after a period of 45 days; Sheikh Salim was and his factory was located somewhere in Mumbai; he received the said amount of ₹ 50,00,000/- on 6th of March, 2013 from Sheikh Salim at a public place in Crawford Market and handed over the same to a person of Piyush Meghani after confirming his identity; Shri Piyush Meghani was the person who was in touch with the buyers based abroad; Shri Meghani specifically asked him to get the photographs of Red Sanders at the time of stuffing in the container so that they could be shown to the overseas buyers and advance payment could be arranged for the next consignment of Red Sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Altaf, we find that he has not only signed each sheet of the statement but also subscribed in hand writing at the concluding portion that: The above statement is correctly recorded as per my say is typed on office computer. The same is my warranter statement which is true and correct and given by me without any force or fear. The statement records vividly the details which are likely to be known only to a person who has gone through the entire activity. The names of places where he met other conspirators, the dates and the manner are not sketchy but are elaborate. Shri Altaf has not only narrated his version of the story but has accessed the email which he used to operate to send the photographs of Red sanders to the other persons who are involved in the smuggling. It is difficult to believe that the officers of DRI could not have put at least this part of the story in the mouth of Shri Altaf. 21. Shri Altaf has given the retraction without giving any specific point he wanted to retract. His plea was that the officers of DRI had a pre-meditated plan to involve him in the case of smuggling of red sanders. He has not given any specific reasons and did not also mention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the statement given by Shri Mohammad Altaf is voluntary and the retraction has no bearing whatsoever on the proceedings. The Learned Advocate for the appellants vehemently argued that the mobile number 9619811923 was not registered in his name and he was not using it. It would be very na ve to assume that people who are in smuggling would use only those phones registered in their name. What is important is whether the appellants have used the phone or not. The statement of Shri Mohit Agrawal proves that the said number 9619811923 was being used by Shri Altaf. Therefore, we find that the submissions on the registration of phone number are not acceptable. 22. The appellant has taken a plea that his statement having been retracted and the statements of co-accused cannot be an evidence to implicate him. In view of our discussion above, we find that the statements have been recorded under Section 108 of the Customs Act, 1962 and the provisions thereof have been explained to the appellants and the retractions are held to be an afterthought. Therefore, we find that the statements of the appellants and those of the co-accused have evidentiary value in the proceedings before us. We find ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd any error whatsoever in the order of the Tribunal repelling the challenge made to the adjudication proceedings on the basis of the acquittal by the criminal Court and that on giving benefit of doubt. Consequently, we answer the questions referred to us in the following manner. The first question has to be answered by holding that the acquittal of the applicants by the criminal court of the charge in the proceedings instituted under Section 135 of the Act does not bar or take away the rights of the competing authority to proceed in the matter against the applicants for violation, rendering them liable for action under Section 112 of the Act. As for the second question, the Adjudication Authorities discharging powers under Section 112 or under Section 111 of the Act are not disabled by the verdict of acquittal recorded in favour of the accused and that too when the same has been by extending benefit of doubt from proceeding in the matter under Sections 111 and 112 of the Act. As for the third question, we are of the view, that since the quantum, nature and character of proof required before the criminal court in a prosecution under Section 135 of the Act being wholly distinct, dif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n adjudication proceedings. We find that Shri Mohammad Altaf has involved himself in the act of smuggling of red sanders. Ongoing through the facts of the case, we are convinced that Shri Mohammad Altaf has played a pivotal role in the smuggling of red sanders. He has not only negotiated with the suppliers, the middleman, the exporters and the logistics persons in the export of red sanders but also has invested certain amount in the business. The Advocate representing Shri Mohammad Altaf pleaded that there is some discrepancy in the amount stated to have been invested by Shri Altaf. Shri Altaf is alleged to have invested ₹ 50, 00, 000/- as per his own statement whereas Shri Meghani reported the same to be ₹ 12, 50,000/-. However, this goes to prove that Shri Mohammad Altaf has invested certain amount with a view to have pecuniary gain in the business. 27. As per our detailed discussion above, we find that the retractions made by Shri Altaf have no substance and have been rightly held to be an afterthought by the Adjudicating Authority. We find that the role played by Shri Mohammad Altaf is evident in the case and looking into the fact that he is a responsible officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by P. Subramanian, Ramnikandan Pichikanu and others have not been interrogated even though their telephone no. was available; no investigation is made in respect of exporting firm M/s Kay Creative Rugs despite telephone Nos, Bank account and address available with the DGFT website; No penalty is imposed on Ganesh Jayaswal even after recording his complicity for reasons known to the Commissioner. DRI has deliberately not examined Deepak Joshi despite his petition in the high Court admitting everything about the case and without any basis the Commissioner also records that his story is not reliable. We find that the above pleas have no bearing on the instant case. We are not sitting in judgement as to whether DRI has conducted the investigation properly, whether the agency ought to have arrested some people and whether they should have issued SCN to some others etc. We are also not sitting in judgment to decide whether commissioner has properly imposed penalties on others. Moreover, as per their own submission the petition said to have been filed by Shri Deepak Joshi is before the Honourable High Court for decision. What is before us is to decide whether the adjudicating ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
