TMI Blog1985 (12) TMI 189X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act and imposed a penalty of Rs. 50,000/- on appellant Mohamed Irfan (appeal No. 165/82), Rs. 30,000/-on appellant Yogesh Shantilal Choksi (appeal No. 144/82), Rs. 5,000/-on Abdul Razak (appeal No. 166/82), Rs. 2,500/- each on Surendra Rao (appeal No. 145/82) and Babu Rao (appeal No. 96/82) and Rs. 1,500/-on Kaziz Ismail Bappu (appeal No. 146/82), besides absolutely confiscating 200 Kgs. of silver jewellery and articles and 95 Dirhams of UAE currency under Section 113(d) of the Act read with Section 13(1) of Foreign Exchange Regulations Act, 1973 and Section 3(2) of the Export and Import Control Act. On appeal, the Central Board of Excise and Customs by its order referred to supra, confirmed the same in all respects except setting aside the confiscation of 95 Dirhams of UAE currency, and the revision applications filed by the aggrieved parties have been transferred to the Tribunal for disposal as stated above. 3. The brief facts of the case are as under. On 5-11-1979 at about 3.30 A.M., the Preventive Officers of the Cochin Custom House, while conducting patrol duty on Cochin-Trivandrum main road, intercepted a tourist taxi bearing Registration No. KLZ 7551 between Eda-Cochin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r appellant Irfan led the case and exhaustively covered the case of the other appellants also and the learned advocates for the other appellants mainly adopted the submissions of Shri Habibulla-Badsha, besides supplementing a few points here and there. The submissions made on behalf of the appellants could be summed up as under for purposes of convenience. (i) Since the articles under seizure are silver articles and not silver ullion or coins, notification issued under Chapter IV-B of the Act relating to specified goods would not be applicable with the result the onus is clearly cast under law on the Department to prove the charge against the appellant under Section 113(b) and 114 of the Act. (ii) The statements recorded from the appellant and others were assailed as not true and voluntary. Even if the statements were held to be true and voluntary since they were subsequently retracted, they would have no evidentiary value unless there is corroboration in material particulars as per law. (iii) When initially the silver articles in question were seized and a mahazar drawn up on 5-11-1979 at about 3.30 A.M., the drawing up of a subsequent mahazar at 8 A.M. for the same seized g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onam under the Indian Penal Code. (ii) The criticism on the second mahazar as legally invalid is untenable and the preparation of a second mahazar was necessitated by reason of lack of facilities at the original place of seizure at about 3.30 A.M. in the early hours of the morning. The learned SDR contended that the second mahazar is a detailed one and the inculpatory confessional averments set out therein against the appellants would not detract from its admissibility or acceptability even if a second mahazar is irregular in law. (iii) The statements recorded from the appellants are clearly inculpatory in nature and confessional in character and have been proved to be true and voluntary and the retraction of the same being belated, the original statements have been rightly accepted and acted upon under the impugned order. He also urged in this context that there was no demur or complaint on the part of the appellant before the Judicial Magistrate at the time of remand regarding the confessional statements. (iv) The learned SDR further urged that the silver articles were being transported for an eventual export out of India as baggage through persons travelling from Trivandru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and. If the circumstances show that the appellants could have been under the custody and control of the Customs Officers from 5-11-79 till 8-11-79, then the statements recorded from persons in the course of such prolonged detention, custody or control would be liable to be discarded and rejected brevi manu as not true and voluntary. The Additional Collector in the original order has observed: The counsels for the defendants also made a plea that the occupants of the car were detained by the departmental officers illegally from 5-11-1979 to 8-11-1979 and their statements were obtained under threat and coercion. But during cross-examination, the chief detecting officer of the case denied the charges. Though the allegation raised is rather of a serious nature, no concrete evidence had been let in on behalf of the parties to show that the occupants of the car were illegally detained by the Customs officers . It is not the case of the Department that they had any further investigation to do in respect of the above appellants from 5-11-1979 to 8-11-1979. To a specific question from the Bench, the learned SDR was not able to answer as to why the appellants were not arrested and reman ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Order) and others", reported in 1984 (15) E.L.T. 289 (Mad.), wherein the High Court quoting from the Corpus Juris Secundum has observed that when the word custody is applied to persons, it implies restraint and may or may not imply physical force sufficient to restrain depending on the circumstances. The full Bench of the Madras High Court has also referred to the case of Nathu v. State of Uttar Pradesh , reported in AIR 1956 S.C. 56, wherein the Supreme Court has held that prolonged custody may stamp the confessional statement so obtained as involuntary one, and the intrinsic value of such a statement may be vitiated. No doubt, the question relating to prolonged custody is always a question of fact in the circumstances of a particular case. The Supreme Court while considering the import of the word custody in the context of Section 439 of the Code of Criminal Procedure, in the case of Niranjan Singh v. Prabhakar, AIR 1980 SC 785, felicitously observed as follows: No lexical dexterity or precedential profession is needed to come to the realistic conclusion that he who is under the control of the court or in physical hold of an officer with coercive power is in custody for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns made by the appellants about their guilt and we do not find any justification at all for drawing up a second mahazar unless it be that the Department felt the necessity of incorporating certain averments inculpatory in character and confessional in nature and attributing the same to the appellants. If really, as contended by the Department, confessional statements had been recorded from the appellants on 5-11-1979, it does not stand to reason as to why incriminatory statements of admission should be incorporated in a document like mahazar in the context of this case. The logical conclusion is inescapable that at the time when the second mahazar was drawn up the statements were not in existence and possibly were not forthcoming. The explanation of the Department that for lack of facilities and by reason of the seizure having been effected at an odd hour in the early hours of the morning, the Department was obliged to draw up a second mahazar with greater details seems too artificial to pass muster with us. It should be noted here that originally the learned SDR faintly attempted to explain away the position by stating that originally the goods were merely detained and it is only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd second document and the Department has not tried to project its stand. At the outset, I am of view that what the occupants of the car choose to say in regard to the presence of large quantities of silver articles and ornaments should have found a place in their statements and not in the mahazar. The fact that the original deposition made immediately after the interception of the car was there in the first document and on detailed interrogation they blurred out more details in regard to the transport of large quantities of silver ornaments in the second document itself showed that the Department cannot be blamed for suppressionveri and suggestio falsi. (ipsissima verba). Therefore, in the peculiar circumstances and factual background of this case, the second mahazar is totally uninspiring and would appear to .be motivated against the appellants. 8. In view of the fact that we have already held that the confessional statements recorded from the appellants are not voluntary, the importance of retraction of the same and its legal consequences would be purely academic and we do not therefore feel called upon to traverse the same. 9. The other important aspect of the case on wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heard the sound of the engine of a mechanised sea-craft from the side of the creek was heard. Number of silver ingots were found concealed in the truck and jeep and four ingots were found lying near the foot-path leading to the creek. The driver and the cleaner when questioned gave false names and addresses. Moreover, they were also not dealers in silver. It is in such a factual background the Supreme Court held that the series of acts committed by the accused went beyond the stage of preparation by their act of moving the contraband goods deliberately to the place of embarkation; such act being reasonably proximate to the completion of unlawful export. It was also found in that case that beyond the stage of preparation, most of the steps necessary in the course of export by sea has been taken. The only step to be taken towards the export of silver was to load it on a sea craft for moving out of the territorial waters of India. But for the intervention of the officers of law, the unlawful export of silver would have been consummated. 11. In the instant case, admittedly the seizure was effected in a place near Cochin more than 100 miles from Trivandrum. Even if the appellants were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uling of the Madras High Court in the case of Ranjit Exports Private Ltd. v. Collector of Customs, reported in 1985 (21) E.L.T. 353 (Mad.), 1985 Vol. 5 Excise Customs Cases, Page 150, wherein His Lordship Justice Nainar Sundaram has comprehensively covered the case law bearing on the subject. In that case, the petitioner therein filed four shipping bills covering 41 bales of silk fabrics of various varieties for export. The shipping documents were prepared and the goods were shown to the Central Silk Board authorities for certifying as to the correctness of the description in the invoices. Out of the 41 bales, two bales were brought inside the Custom examination area and on inspection of the goods it was found that the goods were dupion silk fabrics as against the description in the shipping bill, viz. Handloom natural silk fabrics made of 100% mulberry raw silk filature reeled yarn other than dupion . Since the inspection revealed that the goods were not in accordance with the declaration in the shipping bill, the petitioner therein did not tender the 39 bales for export and instead requested for cancellation of the other shipping bills. The Custom authorities suspecting that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in in the alleged illegal export of silver through his help. We should confess, indeed we are surprised that the Board should have observed in the impugned order that as Irfan,-Choksi, Abdul Razak, Kazia Ismail Bappu and C.D. George have all accepted their roles in the attempt at unauthorised export.... . Such an observation relating to C.D. George is factually incorrect and the same is also highlighted by the learned Counsel in the course of his submissions. When C.D. George has to play a vital and important role in the fruition and completion of the illegal act of exporting silver out of India the exculpatory statement of C.D. George would leave a big lacuna in the entire investigation and this conspicuous and vital missing link leaves a great doubt in our mind. What was the modus operandi of export that was decided upon by the appellants herein in conspiracy with C.D. George is a most vital aspect of the case on which there has been no proper investigation at all. When C.D. George has totally disowned in his statement the role attributed to him to arrange for export of the silver articles from Trivandrum, the Department should, in our opinion, have probed further into the matte ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
