1985 (12) TMI 189 - AT - Customs

Summary

Issues Involved:
1. Applicability of notification under Chapter IV-B of the Customs Act.
2. Voluntariness and evidentiary value of statements recorded from appellants.
3. Legality and relevance of the second mahazar.
4. Detention and coercion of appellants.
5. Interpretation of "attempt" under Section 113 of the Customs Act.
6. Evidence against appellants Babu Rao, Surendra Rao, and Kazia Ismail Bappu for abetment.

Summary:

1. Applicability of Notification under Chapter IV-B:
The appellants contended that since the seized articles were silver articles and not bullion or coins, the notification under Chapter IV-B of the Customs Act would not apply. Therefore, the onus was on the Department to prove the charge u/s 113(b) and 114 of the Act.

2. Voluntariness and Evidentiary Value of Statements:
The appellants argued that the statements recorded from them were not true and voluntary. They were detained from 5-11-1979 to 8-11-1979, and the statements were obtained under coercion. The Tribunal noted that the appellants were not immediately arrested and produced for remand, raising doubts about the voluntariness of the statements. The Board's observation that "it is quite likely that some sort of persuasion was involved in the statement recorded from Irfan" further supported the appellants' claim.

3. Legality and Relevance of the Second Mahazar:
The appellants challenged the second mahazar drawn up at 8 A.M. on 5-11-1979, arguing that it was created to incorporate incriminating statements. The Tribunal found the second mahazar unnecessary and motivated, as the first mahazar already documented the seizure.

4. Detention and Coercion of Appellants:
The Tribunal held that the appellants were kept in unofficial detention or control from 5-11-1979 to 8-11-1979, making the confessional statements involuntary and inadmissible under Section 24 of the Evidence Act. The lack of immediate arrest and remand further supported this conclusion.

5. Interpretation of "Attempt" under Section 113:
The Tribunal examined whether the appellants' actions constituted an "attempt" to export silver u/s 113 of the Customs Act. Citing the Supreme Court's ruling in State of Maharashtra v. Mohd. Yakub, the Tribunal concluded that the appellants' actions amounted to preparation, not an attempt, as they were intercepted 100 miles from Trivandrum, leaving room for a change of mind.

6. Evidence Against Babu Rao, Surendra Rao, and Kazia Ismail Bappu:
The Tribunal found no evidence to support the charge of abetment u/s 114 against Babu Rao and Surendra Rao, as their involvement was limited to giving silver for approval. Similarly, Kazia Ismail Bappu's statements did not indicate involvement in the alleged illegal export. The Board's observation that these appellants accepted their roles in the attempt was factually incorrect.

Conclusion:
The Tribunal allowed the appeals, holding that the charges against the appellants under Sections 113 and 114 of the Customs Act were not proved.