2023 (5) TMI 906 - AT - Customs

Confiscation alongwith penalty - Smuggling - shoes and cigarettes of foreign origin camouflaged with nearly 420 kgs of ginger - contraband item - non-mention of the sub clause of section 112 of the Customs Act - opportunity of cross-examination of the accused not provided - violation of principles of natural justice - HELD THAT:- The fact of smuggling of contraband goods is not in dispute, it is also an admitted position that the accused appellant had in fact gone to Custom House at late evening hours, allegedly to check up on the seizure of the vehicle and seek its release show, stated to be prompted at the behest of a friend whose even primary details like name, age, telephone number, residential address, place of work profession etc. and other basic information details like nature of business carried out, the accused appellant could provide.

The plea of the appellant that statement of co-accused cannot be, the sole basis of imposition of penalty is the proposition that would vary with the facts and circumstances of the case. In fact the honourable Supreme Court in the case of NARESH J. SUKHAWANI VERSUS UNION OF INDIA [1995 (11) TMI 106 - SUPREME COURT] had held that the statement of co-accused when not retracted, was substantive piece of evidence. In the present case, as a matter of fact, the prompt and forthwith identification of the accused Sri Praveen Kumar Gupta, by the driver, co-accused clearly connects, the appellant to the contravention concerning smuggling of seized goods of foreign origin. The statement under section 108 of the Customs Act recorded by Customs Officers is material piece of evidence and this incriminating material incriminating the accused as well as the co-accused can certainly be used against them as substantive evidence.

In so far as the plea of non-mention of the sub clause of section 112 of the Customs Act is concerned with, it is found that while the sub-clause ordinarily ought to have been spelled, however it is not an omission of such proportions as could result in non-imposition of any penalty as long as the nature of offence is discernible from the charges levied. On the plea of imposition of penalty on the basis of sole evidence of the statement of co-accused the Hon’ble High Court of Allahabad in the case of PRAVEEN DUMAR SARAOGI VERSUS UNION OF INDIA [2014 (2) TMI 643 - ALLAHABAD HIGH COURT] had categorically held that the statement of co-Customs accused recorded under section 108 of the Customs Act can be used against the co-accused of the same case.

The voluntary statements of the accused as well as a co-accused bind them and the fact that the said statements were not retracted at any point in time, subsequently clearly lends complete credence to their evidentiary value. Under the circumstances, failure of an opportunity to cross examine cannot be considered as violative of principles of natural justice, the Hon’ble Supreme Court in the case of SURJEET SINGH CHHABRA VERSUS UNION OF INDIA [1996 (10) TMI 106 - SUPREME COURT] have upheld this this proposition.

There are no reason to interfere with the orders of the Commissioner (Appeals) which is upheld. The appeal filed by the appellant is dismissed.