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2019 (1) TMI 1868 - HC - CustomsSmuggling - Gold - inability of the respondent to present coaccomplice who have given statement examination for cross –examination by the petitioner - HELD THAT:- In the present case, the 1st respondent has relied on the statements of appellant and co-accomplices while passing Order in Original. They are his employees and partners and partner’s brother who are either absconding or are not traceable and cannot be produced for cross examination - They have reportedly retracted their statements recorded under Section 108 of the Act though some of them have withdrawn their retractions and have stated that their original confessions to be true in their later statements. From the order impugned in the writ petition, it appears that certain admissions appears to have been made by the appellant relating to his involvement in which case there would be no necessity to cross examine the co-notices. However there are no documents produced. Even if produced, we would have refrained from dissecting them while examining the order of the Single Judge - Therefore, denial of cross-examination of co-accomplice who have allegedly retracted their statements is of no consequence as far as the appellant is concerned. An order of a quasi judicial officer is sustainable if the finding arrived therein are based on preponderance of probability and other overall evidences and documents on record. Whether the finding arrived in the impugned order is solely based on the statements of co-accomplices or based on preponderance of probability or not is something which can be examined only before the Appellate Commissioner and not in a writ proceeding - Scope of writ petition and the extent to which courts can interfere under Art. 226 is limited. The appellant should therefore explore options before the Appellate Commissioner and place all legal and factual submissions there. The remedies sought for by the appellant before this Court is available to him before the Appellate Commissioner. The Appellate Commissioner can on proper examination of records can come to a just conclusion. As the jurisdiction to interfere is very limited, we would not like to pass orders on merits particularly in view of the statements which appears to have been given by the appellant before the 2nd respondent during investigation - appeal dismissed.
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