TMI Blog1986 (3) TMI 224X X X X Extracts X X X X X X X X Extracts X X X X ..... 85/80), Khatib Ali Saheb (appeal No. 187/80) and Khatib Abbas Saheb (appeal No. 282/80). Appellant Khatib Ali Saheb is not represented before us. 2. The brief facts relevant for the appeals are as follows. On the basis of information that goods of foreign origin have been brought and dumped in a hut near Gujjarbettu sea coast, Udupi Taluk, Karnataka State, the authorities on the night of 28/29-12-1971 raided the same and recovered 94 gunny bundles which on examination were found to contain fabrics, metallic yarn, calculators and Cassette car Stereo Bigston (Player/recorder), all of foreign origin. The hut belonged to one Shabi Fernandez of Badanidiyur village. Since nobody claimed the goods, the goods were seized under mahazar as per law. During the course of investigation, the authorities examined a number of persons as detailed in the original order of adjudication and recorded their statements which included the appellants herein and others. Investigation revealed that an Ambassador car bearing registration No. MYG 3288 in the ownership and possession of appellant Khatib Abbas Saheb was used for the transport of the goods under seizure. It is in these circumstances, after due ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant. It was urged that out of the said three persons who implicated the appellant, Abu Mohmed and Sheriff were inimically disposed towards him as is evidenced by the appellant s statement dated 8-1-1972. He therefore, contended that having regard to the averments in the show cause notice and the evidence collected during investigation against the appellant, the charge under Section 112(b)(i) of the Act against his client has not been made out. Though the car MYG 3288 was in the possession of custody of appellant Khatib Abbas Saheb temporarily, the driver of the vehicle has not stated that this car was used in the transport of the contraband goods under seizure but a different car having an APQ registration, and so it was contended that mere temporary custody or possession of the vehicle MYG 3288 with appellant Khatib Abbas Saheb would not be a circumstance against him. The learned Counsel also placed reliance on the judgment of the Criminal Court referred to supra and urged the plea that the appellant was in a state of illegal detention. 6. The learned Departmental Representative repelling the submissions of the learned Counsel for the appellants contended that the plea of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... position of co-accused is not factually correct. Indeed we should observe that while dealing with the case of appellant Moosa the learned Counsel himself was not quite sure as to how many persons have implicated him and he started originally saying that two persons have implicated him and corrected himself and submitted that only one had implicated appellant Moosa and again re-corrected himself to say that two persons had implicated him. But on going through the records we find that appellant Moosa has been implicated by a number of persons. The statement of L.K. Abdul Khader dated 29-12-1971 implicates appellant Moosa and others and as rightly observed in the impugned order of adjudication, statements of M. Mohamed, Kudremal Abdul Rahiman, Parkot Mohamed, C. Aziz, K.C. Hussainare and M.K. Abdul Rahiman dated 29-12-1971 lend a considerable degree of corroboration to the statement of L.K. Abdul Khader establishing the complicity of appellant Moosa and others with the contraband goods under seizure. In such a situation the only question that would arise for consideration is whether the statements are true and voluntary and reliable. On going through the statements we are convinced th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fundamental principles of natural justice and criminal jurisprudence would be applicable in adjudication proceedings. He also referred to the ruling of the Supreme Court in the case of Shanti Prasad Jain v. Director of Enforcement, Foreign Exchange Regulations Act and another, reported in AIR 1962 S.C. 1764, to contend that proceedings under the Customs Act are quasi-criminal in nature. Nobody can quarrel with this axiomatic and fundamental proposition of law. In the instant case the learned Counsel was not able to satisfy us that the fundamental principles of criminal jurisprudence or natural justice were not applied in the adjudication proceedings. We also do not find any substance in the plea of the learned Counsel that appellant Moosa has not been properly referred to and identified by the various persons. There is no provision under the Customs Act for holding any identification parade, as is done under the provisions of Criminal Procedure Code, and to a specific query from the Bench, the learned Counsel while conceding this point submitted that at least for the subjective satisfaction the adjudicating authority should have taken pains to get to know whether appellant Moosa h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatement of the various persons, we are satisfied that they are true and voluntary, reliable and merit acceptance in regard to the implication of the appellant with the goods under seizure. We are not inclined to accept the plea of the learned Counsel with reference to the judgment of acquittal by the Judicial First Class Magistrate, Udupi, in the criminal prosecution referred to above. It should be noted in this context that in a criminal court Section 30 of the Evidence Act would come into operation, and when various persons are arrayed as accused and when the accused persons have given statements confessional in nature, the criminal court cannot place reliance on the confession of a co-accused and Section 30 of the Evidence Act imposes as it were a statutory embargo on the court from relying on the confessional statement of a co-accused. As the Supreme Court has held it is only after taking into consideration the entire evidence and materials available on record de hors the confession of a co-accused, if the court reaches a judicial conclusion of guilt, the court will be entitled to look into the confession of a co-accused for purposes of lending assurance to its conscience. But ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter with us. It is admitted by the learned Counsel that the vehicle MYG 3288 was in the appellant s custody, possession and control albeit temporarily, Statements of persons such as Yakub Saheb, Kareem Saheb, Jabba Poojari clearly connect the vehicle MYG 3288 with the goods under seizure and apart from it statements of Umar Saheb, Chella Tandel, Abu Mohamed and Mohamed Sheriff would also establish connection between the appellant and the goods under seizure vis-a-vis MYG 3288. The plea of the learned Counsel regarding illegal detention, retraction of the confessional statements of the various persons implicating the appellant and unacceptability of those statements as they are persons in the position of a co-accused have all been set out while considering the case against appellant Moosa and the various principles which we have adverted to would equally apply here also and instead of repeating the same we adopt the same reasons for accepting the statements of various persons implicating appellant Khatib Abbas Saheb. We therefore, hold that the charge against appellant Khatib Abbas Saheb has been clearly established. 10. So far as appellant Khatib Ali Saheb is concerned, even-thou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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