9911796707
TMI Blog1988 (9) TMI 211X X X X Extracts X X X X X X X X Extracts X X X X ..... ecorded immediately after the seizure. In the statement, among other things, the appellant has stated :- "Today on 28-4-81 you and your officers came to my shop and held me and brought me to the office and in the presence of two Panchas and opened my bag and leather bag of maroon coloured..." He then referred to the letter that the appellant had written to the Superintendent on 1-5-81. In this letter, among other things, the appellant stated : "I was forcibly brought down stairs with gold ornaments and cash in one bag, and in another thelli (bag of cloth) my books of accounts. After, bringing me down stairs I was made to sit in one oil shop with two officers and one officer went to fetch taxi". Shri Wazifdar then relied on the affidavit of the shopkeeper in whose shop the appellant was made to sit. The shopkeeper Kesavbhai Daudbhai doing business in oil and flour in his statement stated that on 28th April, 1981 at about 10.30 a.m. a person who was standing near a shop asked his permission to sit in the shop. Since he told that he was a Gold Control Officer he was allowed to sit. After about an hour, 3 other persons brought the appellant and he was also made to sit in the shop. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In that connection, Shri Wazifdar referred to the cross-examination of the Gold Control Superintendent who was one of the officers who offended his... Shri Wazifdar finally prayed that the confiscation and the fine levied in lieu of confiscation as well as the penalty may be set aside. 5. Shri Mondal appearing for the respondent, however, supported the order passed by the Collector. He submitted that there was no valid reason as to why the Gold Control Officers should foist a false case against the appellant. He urged that the three officers have made three separate reports immediately after the incident and their reports supported the Department's case regarding the apprehension of the appellant near the Stock Exchange Building at Kalbadevi. Though those officers were offered for cross-examination that appellant's advocate declined to cross-examine them. Shri Mondal further submitted that immediately after the seizure a panchnama was drawn up and in the presence of the panchas the appellant admitted having been intercepted and caught hold of at Kalbadevi. The panchas were also not cross-examined though offered. Shri Mondal also urged that no reliance can be placed on the affidav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Departmental Officers, the appellant could not have been allowed to make such a statement by the very Gold Control Supdt. in whose presence the statement was made and recorded. It is settled law that panchnama is not a substantive evidence. It can be used either for corroborating or contradicting the statements of the persons who are parties to the panchnama. It is a document which evidences the seizure. It has no further evidentiary value. In the circumstances, if the learned advocate had not shown his inclination for cross-examination of the panchas no adverse inference can be drawn. The Collector in his order observes that the learned advocate had declined the offer of cross-examining the seizing officer. His observation is factually not correct. The seizing party consisted of a Superintendent and three Inspectors. The Superintendent was cross-examined. He was the highest officer among the seizing party. There was no need for the appellant to cross-examine the other officers. Therefore, no adverse inference can be drawn for not availing the opportunity of cross-examination of the Inspectors who accompanied the Superintendent. The Collector then relied on the reports of the th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment made by the appellant immediately after the seizure and the letter written on 1-5-81 and the affidavit of the shopkeeper the department's case is examined, it would be clear that the story that the appellant was apprehended near Stock Exchange Building at Kalbadevi was a got up and concocted. 9. On the date of search and seizure, the shop premises of the appellant was also searched and according to the Collector's order nothing incriminating was noticed. All that the Department was able to establish in this case was not making entry with regard to the two purchases and one sale. But then, all these transactions were covered by vouchers. These vouchers were with the records which were brought to the Gold Control Officer on the date of seizure itself. From the cross-examination of the Superintendent who was one of the seizing officers, it appears that genuineness of the vouchers were verified. He did not state that the vouchers produced were not genuine or were got up for the purpose of the case. What is strange is about the observation of the Collector in his order that in respect of 300 gms. which were accounted for in G.S. 11 register there was no proper voucher. The Collect ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
