1991 (4) TMI 245 - AT - Customs

Summary

Issues Involved:
1. Imposition of personal penalty under Sec. 112(b) of the Customs Act.
2. Validity and reliability of the appellant's inculpatory statement.
3. Lack of corroborative evidence.
4. Procedural lapses in the investigation.
5. Applicability of Section 112(b) of the Customs Act.
6. Retraction of the inculpatory statement.

Detailed Analysis:

1. Imposition of Personal Penalty under Sec. 112(b) of the Customs Act:
The appeal challenges the Order-in-Original No. S/14-S/10-89, dated 28-9-1990, which imposed a personal penalty of Rs. 1,00,000/- on the appellant under Sec. 112(b) of the Customs Act. The adjudicating authority found the appellant guilty of contravention and imposed the penalty based on his inculpatory statement.

2. Validity and Reliability of the Appellant's Inculpatory Statement:
The appellant's inculpatory statement, recorded on 11-2-1989, was the sole evidence against him. The appellant retracted this statement before the Metropolitan Magistrate on 27-3-1989, claiming it was obtained under threat and coercion. The appellant argued that the statement was typed, unlike others recorded on the same day, suggesting it was pre-prepared and only his signature was obtained under duress.

3. Lack of Corroborative Evidence:
The appellant's counsel argued that the retracted statement lacked corroboration on material particulars, citing well-known judicial pronouncements that retracted statements, if uncorroborated, cannot form the basis of conviction. The Tribunal noted that there was no direct or circumstantial evidence establishing the appellant's involvement, nor was there any independent evidence corroborating the appellant's statement.

4. Procedural Lapses in the Investigation:
The Tribunal observed significant procedural lapses during the investigation. Key individuals named by the appellant, such as Mr. Agha and Mr. Pinto, were not adequately pursued for their statements. The investigation lacked precision and failed to probe deeper into the involvement of other potential culprits. The Tribunal criticized the investigation for handling the case in a "laissez-faire way" and noted that the principal culprits remained untouched.

5. Applicability of Section 112(b) of the Customs Act:
The Tribunal examined whether the appellant's alleged involvement constituted an act punishable under Section 112(b) of the Customs Act. The appellant's statement indicated that he was only informed about the gold's concealment and was to act upon it once the vessel reached Bombay. The Tribunal concluded that the appellant did not acquire possession, nor was he involved in carrying, removing, depositing, keeping, concealing, selling, or purchasing the gold. His agreement to abet at a future date did not fall within the purview of Section 112(b), as it is the commission of the act, not the intention, that is punishable.

6. Retraction of the Inculpatory Statement:
The Tribunal acknowledged the appellant's retraction, made before the issuance of the show cause notice, and emphasized the settled legal position that retracted statements require corroboration from independent evidence. The Tribunal found no such corroboration in this case, rendering the statement insufficient to sustain the penalty.

Conclusion:
The Tribunal set aside the order of imposition of the penalty on the appellant, finding that the evidence was inadequate to substantiate the conclusion of his involvement. The retracted statement, lacking corroboration, could not form the basis for the penalty under Section 112(b) of the Customs Act. The Tribunal also highlighted procedural lapses in the investigation, noting that the principal culprits were not adequately pursued.