TMI Blog1988 (7) TMI 260X X X X Extracts X X X X X X X X Extracts X X X X ..... panch witness Shri Gangoli made on behalf of Shri Shaikh, though helps to an extent Shri Thete, Shri Gangoli corrected himself and stated that Shri Thete had asked Shri Shaikh to be honest enough to state the contents of the black brief case. Even in the revised version of the witness, the prior knowledge of the contents of the brief case on the part of Shri Thete is evident. (ii) The second evidence against Shri Thete is the claim made by Shri Shaikh that he has sought the help of Shri Thete and in fact had advised Shri Thete that the bag contained contraband which he sought to remove with the help of Shri Thete. Though Shri Shaikh has written a letter from the Jail contradicting his initial statement and clearing Shri Thete of the inculpation made by him in the affair, subsequently he kept on inculpating Shri Thete. The Addl. Collector has observed that despite his retraction written from the jail, it is still capable of lending some corroboration to the allegation that Shri Thete was aware of the contents of the brief case. (iii) Three more seizures were made in the proximity of Shri Thete of which one was made from the bath room, the other from his residence and the third ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicated in his initial statement that the suit case was collected by him from a passenger by name Abdulla and Shri Thete was not aware of the contents, he subsequently modified to implicate Shri Thete also. His subsequent implication of Shri Thete has also been retracted by his letter dated 4-9-80 written from the jail i.e. immediately two days after his earlier statement. Hence Shri Shaikh s subsequent stand putting the entire blame on Shri Thete is wholly unreliable and he is a co-accused in this case and even in his evidence, there is no consistency. When the adjudicating authority had already cleared Shri Thete with regard to three other seizures, it is not correct on his part to co-relate Shri Thete with the wrist watches in question and the knowledge thereof to Shri Thete. It was also submitted that in the prosecution of the case launched by the Department against the appellant he has been acquitted on merits and hence in terms of decision reported in 1987 (32) E.L.T. 640 (Mad.) Aboobakar v. Secretary of the Govt. of India, the verdict of the court is binding even in regard to the departmental proceeding. On conclusion of his arguments, the learned counsel posed the following ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Intelligence Unit (AIU) intercepted Shri S.A. Thete riding on his scooter with Shri Shaikh on pillion carrying a black colour brief case. From the said brief case wrist watches of foreign origin and saree materials were recovered. As a follow-up on this recovery, residential premises of Shri Thete were also searched which resulted in seizure of foreign liquor bottles and a blue film. Subsequently on information the terrace of the building where Shri Thete s residential flat is located was searched which resulted in recovery of two speakers of foreign origin. 8. Now coming to the facts which are disputed they can be identified as below: According to the Department, when the scooter was intercepted by the Customs Intelligence Officers, Shri Thete told them: Janedo Isme lapdeka mal hai (in Hindi). Shri Thete also directed Shri Shaikh before panch witness and other officers to tell the Customs Officers honestly that the brief case contained watches. Shri Shaikh, however, implicated Shri Thete as the officer whose help was sought by him to remove the brief case handed over to him by Shri Abdulla - the said Abdulla having been cleared at the Immigration by Shri Thete. The said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he list of articles recovered. Despite this, in his statement, he has chosen to depose that they were not recovered from his residence and he also does not want to say anything about the presence of these liquor bottles. Subsequently one of his relatives files an affidavit and claims only foreign liquor bottles. The mystery of the presence of blue film still remains unsolved, and the key of the mystery can only be with the occupants of the house and Shri Thete is the owner of residential premise. Likewise in regard to other two seizures the proximity of Shri Thete is discernible, though he has totally dis-owned any connection with those goods. The same method had been adopted even in regard to the recovery of the watches covered by this appeal. However, in this case, Shri Thete has been intercepted on the spot while riding the scooter along with Shri Shaikh carrying the black brief case sitting on the pillion. Immediately thereafter in front of the panch witness and the officers of the Police as well as the Customs, he is found to have told Shri Shaikh to declare the contents of the box as watches honestly. Though this is rebutted vehemently, Shri Thete s initial statement on this, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s clearly inculpated Shri Thete apart from incriminating himself. It is not a case that Shri Thete was brought from somewhere else and he was implicated. He was caught at this spot while riding on a scooter carrying Shri Shaikh on a pillion with the box containing contraband. In such a situation the statement made by an accomplice in regard to the prior knowledge of Shri Thete cannot be dismissed altogether. It is argued by the counsel that this statement of Shri Shaikh was subsequently retracted, while he was in the prison through a letter to the Collector of Customs. In this letter, Shri Shaikh has exonerated Shri Thete of prior knowledge. Shri Shaikh seeks to give an explanation that this letter was written under duress under instructions of Shri Thete, while both of them were in the jail. This version of Shri Shaikh appears more probable in the facts and circumstances of the case - particularly Shri Thete did not deny his being in the jail along with Shri Shaikh. This also finds support in the subsequent stand of Shri Shaikh himself. 9.4. Moreover, the other circumstances, which in our view, lend considerable support to the prior knowledge on the part of Shri Thete can be ide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1987 (32) E.L.T. 640 in case Aboo Bakar v. Secretary to the Govt. of India, the verdict of the Court acquitting the accused in the criminal prosecution proceeding is to be taken as conclusive and the orders of the adjudicating authority holding a different view is not tenable. On this, we invite the attention of the learned counsel to the judgment of Division Bench of the Bombay High Court in the case of Maniklal Pokhraj Jain v. Collector of Customs (Prev), Bombay and others, 1986 (26) E.L.T. 689 (Bom). This judgment clearly answers this issue. This judgment is based on the judgment of the earlier Division Bench which has been approved. We would therefore prefer to extract the observations of the Division Bench as below, which squarely answers the issue reised by the Counsel: 15. Section 112 is an express provision which authorises the levy of penalty in respect of acts or omissions referred to therein. The procedure with regard to adjudication of confiscation and penalties is expressly provided for in Section 122 of the Act. The power to be exercised by the Collector of Customs or Deputy Collector of Customs or by an Assistant Collector of Customs or by Gazetted Officer of Cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt while in the proceedings for adjudication or confiscation before the Customs Department, the statement made by the person from whom the contraband articles were seized can be looked into. The scheme of the Act, therefore, clearly indicated that the two proceedings have to be dealt with independently of each other on such material as is available and permissible in these proceedings". 11. Thus on all the three issues raised by the learned Counsel for the appellant we find that there is no merit in favour of the appellant. Accordingly, we dismiss this appeal and uphold the order of the Additional Collector imposing the penalty on the appellant. 12. Though no arguments were made with regard to the confiscation of scooter of Shri Thete during the hearing, this had been referred to in the appeal memorandum. The learned S.D.R. has argued justifying the order of confiscation in view of the fact that the Addl. Collector s findings are to the effect that Shri Thete had offered to transport the contraband with prior knowledge. Since the confiscation of the scooter has not been contested during the hearing, we uphold the order of confiscation. 13. Before parting, we would like to pla ..... X X X X Extracts X X X X X X X X Extracts X X X X
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