TMI Blog1986 (12) TMI 232X X X X Extracts X X X X X X X X Extracts X X X X ..... s on the road. The jeep, however, halted at some distance away from the officers and the occupants made good their escape taking advantage of the darkness and heavy rain. The examination of the jeep in the presence of the panchas resulted recovery of 9159 wrist watches of foreign origin valued at Rs. 7,37,520/-. The jeep as well as the wrist watches were seized in the reasonable belief that they were liable to confiscation. The investigation disclosed that the jeep bearing No. GDB 267 was found registered in the name of one Smt. Paliben Harlal Patel. The Customs authorities also made an advertisement in the local newspaper regarding the seizure of the jeep and the wrist watches. In the advertisement, it was stated that the person who owns the jeep and wrist watches may contact the Assistant Collector of Customs, Bulsar. In response to the advertisement, one Shri Kika Sukar sent an application which was received by the Assistant Collector on 1-9-1971 claiming ownership of the jeep. When summons was issued to Kika Sukar to give evidence to establish his ownership of the jeep, he did not come forward to establish. During the course of investigation the statements of appellant and seve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jarat High Court had considered the evidence against the appellant and recorded a finding that the jeep at the relevant time was not standing in the name of the appellant and the jeep was sold to Kika Sukar a few days before the seizure. Having regard to the finding of the High Court, it has to be held that the appellant was not the owner of the jeep at the relevant time and he could not have any control over the jeep. The case of the Department that contraband goods got loaded by the appellant in the jeep or that the jeep belonged to the appellant cannot be believed. Shri Pochkhanawala further submitted that the statement of Kika Sukar cannot be relied upon, firstly, because at the earliest point of time he had claimed ownership of the jeep, later during his statement he denied that it belonged to him. But again in his further statement on 31-8-1976 he admitted having purchased the jeep from Smt. Paliben. It was also submitted by Shri Pochkhanawala that there was no evidence to establish the nexus between the appellant and the seized goods or the jeep excepting the statements of co-accused persons. The High Court of Gujarat considered the evidentry value of the statement of co-acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the other observation, namely, that the evidence of co-accused should have probative value but then probative value can not be attached to the evidence of Kika Sukar and therefore that judgment is not applicable. 7. We have carefully examined the submissions made on both the sides. The short question for consideration is whether the penalty imposed on the appellant by the Addl. Collector and confirmed by the Central Board of Excise and Customs requires to be interfered with. The main ground on which Shri Pochkhanawala requires us to interfere with the order was that the Gujarat High Court in the Criminal Revision filed by Banabhai Khalpabhai Patel against his conviction had set aside the order of conviction and had set him free. Shri Pochkhanawala has taken us through the order of the Gujarat High Court. Based on the observations contained in this order, Shri Pochkhanawala had argued that there was no legal evidence against the appellant to establish the nexus between him and the seized wrist-watches. In order to appreciate the contentions urged by Shri Pochkhanawala, it is necessary to refer to the judgment of the Gujarat High Court as well as orders passed by the adjudicatin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ependent source. Again on going through the statement of Babubhai Dhedabhai itself, it will be difficult to say that, that statement contains a true account and strikes one as a true statement. The statement itself becomes doubtful when we find that with regard to the ownership of the vehicle, there is material on record which would show that at the relevant time, the vehicle was not of the ownership of accused No. 6". 8. From the reading of the judgment of the Hon ble Gujarat High Court, it is clear that the High Court acquitted the present appellant on the ground that the evidence on which the two courts below relied, namely, the evidence of Babubhai Dhedabhai was not corroborated by any other independent evidence. Further, Babubhai Dhedabhai was an accomplish and the prosecution against him was withdrawn. Now it is settled law that the Evidence Act as well as the Criminal Procedure Code are in turn not made applicable to the adjudication proceedings. So far as the adjudicating authority is concerned if the statements of persons recorded under Section 108 are found to be voluntary and truthful, he is entitled to rely on such statements. But then the Criminal Court even if it fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded under Section 108 of several witnesses. He had placed reliance on the statements of witnesses who were not traceable subsequent to the recording of their statements. The judgment of the High Court also indicates that though originally the prosecution was launched against 17 persons, only 8 persons were tried. Thus, the criminal court did not have the evidence of the witnesses on which the adjudicating authority relied on. It is also to be remembered that the order of the High Court is subsequent to the order of adjudication. The appeal is against the order of adjudication. In the circumstances, we can only have due regard to the order passed by the Hon ble High Court. But essentially we will have to consider whether the findings recorded by the adjudicating authority and confirmed by the Board on the material placed before the adjudicating authority was correct and justified. The adjudicating authority had held that the jeep belonged to the appellant and was under his control. But the Hon ble High Court found the evidence lacking to establish the ownership or control of the jeep. But the finding of the Addl. Collector did not rest only on the ownership and possession and contro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shah, Advocate on 16-8-1974 he has simply stated that he knows nothing about the seizure of the watches on 26-8-1971. This statement directly conflicts with his statement recorded under Section 108 of the Customs Act, 1962 on 24-4-1972. He has not made any allegation that this statement was taken under duress, coercion, threat or inducement". The order of the Addl. Collector further discloses that he was aware that the statements of the witness from who he is relying are in the nature of accomplices or co-accused evidence and he has therefore taken care to scrutinise them. Referring to the statement of Babu Dheda, the Additional Collector observed in his statement, dated 28-3-1972 Shri Babu Dheda clearly deposed that he was a casual labourer working under Shri Bhana Khalpa and that he has known him for many years. He further deposed that Shri Bhana Khalpa has earned a lot of money during 8 to 10 years by loading smuggled goods on the coast of Moti Daman and by sending them to Bombay by motor and truck. He has also deposed that to supervise his wadi Bhana Khalpa has employed Mohan Kamli and Kika Sukar. He had been helping Shri Bhana Khalpa in unloading smuggled goods and the perso ..... X X X X Extracts X X X X X X X X Extracts X X X X
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