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2021 (10) TMI 1411 - HC - CustomsSmuggling - 24 karat gold in the form of crude chain, paste etc. - contraband item - baggage rules - it is the stand of the petitioners that they never intended to cross the Customs barrier at the airport through green channel as averred by the respondent / Customs and they in fact, intended to declare the same, since before they crossed the DFMD they were intercepted, the chance was not given to them to make the declaration. Passengers numbering about 129 who are involved in this case had arrived in three consecutive days from various destinations through various flights - Can all these passengers cannot be put under one basket by drawal of one seizure mahazar. Prayers of remitting the matter back to the adjudicating authority by affording the opportunity of cross examination - principles of Natural Justice. HELD THAT:- Here in the case in hand, whether any such attempt has been made by the Customs to comply with clause (a) of Section 138-B (1) is a question, where, there is no such attempt seems to have been made and no summons have been given to these two independent witnesses and even the mahazar drawn officer and the seizure officer who signed in the mahazar were not made present before the adjudicating officer or made available before the adjudicating officer for examination - In the absence of any such attempt being made by the respondent Customs to bring the person who made the statement, it cannot be stated that the contingency noted at clause (a) have been complied with in this case. Therefore, the relevancy or admissibility of the statement is questionable in this case. In the facts of the case, the entire case has been built up based on the single seizure mahazar, wherein, each and every aspect, according to the mahazar, was done only in the presence of the independent witnesses. They also claimed that, even after the seizure was completed the entire goods seized were kept in 5 boxes and in each of the boxes these independent witnesses signed and in every stage of search and seizure these independent witnesses were present. When that being so, the proprietary requires that, the adjudicating authority should have issued summons to these independent witnesses to corroborate the statements ie., the mahazar. Unless and until the basic fact of mahazar is corroborated by two independent witnesses, whether the veracity can be automatically admitted in favour of the Customs is yet another question for which this Court at this moment do not want to make any comment. However, for the limited purpose of giving the chance of cross examination to the petitioners atleast that attempt should have been made by the Customs to bring those independent witnesses during the adjudication proceedings and made them available for such examination / cross examination. As rightly opined by the Division Bench, there is no straitjacket formula on the principle as to whether the chance of cross examination is a must or not, as it depends upon the facts of each of the case. Moreover, insofar as the request of cross examination is concerned, it has not been specifically denied by giving any order in writing by the adjudicating authority. Had the adjudicating authority decided the issue as to whether chance of cross examination should be given to the petitioner or not as a preliminary issue and rendered a finding, giving an order to that effect, certainly the arguments advanced by the learned Counsel for the respondents can be accepted and an appeal can be filed. However, in the case in hand, that issue has not at all been considered and decided, but the adjudicating authority proceeded to complete the adjudication on whole merits of the case and passed a final order. Therefore, the arguments advanced by the learned Standing Counsel on the side of the respondent on this aspect is also not countenanced. Here in the case in hand, the contents of the show cause notice has already been discussed, where the contents recorded in the seizure mahazar has been reproduced in the show cause notice and that is the main basis for the Customs case to proceed for adjudication. In the mahazar as stated already, two independent witnesses have been shown and one Intelligence Officer of the DRI who has drawn the mahazar and another Intelligence Officer of the mahazar who is incharge of the whole seizure, atleast these four persons should have been made available for examination / cross examination when specifically this was asked by the noticees. This principle as has been indicated in Clause 14.9 of the Master Circular can be considered to be an apt direction in the given circumstances of the case. Here in the case in hand, the cross examination chance which is one of the integral facet of the natural justice principle since has been specifically denied, this Court feels that on that ground the impugned orders certainly get vitiated. In that view of the matter, for the limited purpose of remanding the matters for re-adjudication to the respondents Customs, this Court feels that the impugned orders can be interfered with - the matters are remitted back to the respondents for re-adjudication. While making readjudication, the observations as stated shall be borne in mind by the adjudicatory authority where fair opportunity of cross-examination to cross examine the witnesses, especially the two independent mahazar witnesses and two Intelligence Officers of DRI who are responsible for drawal of mahazar and the seizure of the goods atleast shall be made available to the petitioners for cross-examination. After giving such chance of crossexamination, it is open to the adjudicatory authority to complete the adjudication proceedings and pass orders on merits. Petition allowed by way of remand.
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