TMI Blog1988 (7) TMI 169X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 115(2) of the Act, and imposing a penalty of Rs. 4,00,000/- on the appellant under Section 112 of the Act. On the basis of information that contraband goods were to be transported from Bairgania through the jeep (Jonga RJA 392), the Customs Officers proceeded to the place on 24-4-1982. The authorities recovered the contraband goods in question from the premises of a flour mill at Musachak. Since there was no satisfactory account for licit possession and acquisition of the goods by any one, the authorities effected seizure of the same under Mahazar as per law. The authorities searched the residential premises of the appellant and seized the said jeep opposite to his house from near a field. The appellant s brother, Shri R. Prasad gav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... witness I wherein he had categorically stated that the appellant at the dock (referring to the appellant herein) was not present in the vicinity of the scene of occurrence. 3. The learned departmental representative very vehemently contended that the appellant is a veteran smuggler and resorted to firing against the Customs Officers, and in the circumstances it is proved and established that the appellant is the owner of the Jeep as well as flour mill in question wherefrom the contraband goods were seized by the Customs Officers. The learned departmental representative placed reliance on the statement of the brother of the appellant dated 25-4-1982 and also on F.I.R. dated 25-9-1982, and the statement of the Inspector of Customs before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be established on the basis of circumstantial evidence, the circumstantial evidence must be compatible only with the guilt of the person and totally incompatible with the innocence of the accused. The Supreme Court and the various High Courts in a number of cases are at pains to point out repeatedly that the circumstantial evidence should lead only to one hypothesis viz. the guilt of the persons concerned. We would like to bear in mind that the proceedings under the Act being penal in nature if the circumstantial evidence does not conclusively establish the culpability of the appellant, the appellant would be entitled to the benefit of doubt. Bearing all these well settled propositions in mind if we analyse the evidence on record with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present on that day at all at the place of occurrence. The plea of learned departmental representative that the F.I.R. in question is against the appellant is not acceptable. The first information report is not a piece of substantive evidence. Even in the F.I.R. it is nowhere stated that it is the appellant who was either present, or had anything to do with the contraband goods under seizure. The adjudicating authority has referred to the involvement of the appellant in a previous case of smuggling of contraband goods valued at Rs. 41,478/- seized at Sitamarhi railway station on 7-4-1977. We do not see any relevance at all to the reference of the appellant s previous bad antecedents by the authorities in the reasoning portion of the impugne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tances that might be taken into consideration in conjunction with other evidence available on record. The finding of the learned Additional Collector that there is direct evidence of the seizing officer who had seen the accused opening fire at the time of seizure of the contraband goods is also not based on evidence available on record. This finding is a factual error. On the other hand, as pointed out earlier, even the testimony of the Inspector of Customs as PW 1 in Sessions Court would appear to be in favour of the appellant and not against the appellant. We would like to observe that in a case of this magnitude there should have been better investigation. In our opinion, notwithstanding the exchange of fire that took place on the date o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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