TMI Blog2010 (3) TMI 564X X X X Extracts X X X X X X X X Extracts X X X X ..... rthy, Member (T)]. - On the basis of news received from one of the villagers, the Inspector of Customs, Bankot rushed to the sea-shore near village Velas, Tal : Mandangad, Dist : Raigad on 25-7-91, where he noticed a vessel in wrecked condition stuck in the shallow water near the sea-shore. 160 silver bricks of foreign origin along with one sextant machine and one sat-com machine both of foreign origin were recovered from the vessel which were seized on 25-7-91. The vessel did not bear any Regn. No. or name on its body. Further on 26-7-91, 112 silver bricks, 58 wrist watches other goods like cigarettes, match boxes etc. all of foreign origin and on 27-7-91, 13 more silver bricks of foreign origin were recovered from the said vessel and were seized under Customs Act, 1962. The crank shaft, anchor and other attachments of the vessel were seized and taken into custody. The vessel being broken into pieces was not seized. As per evaluation on 29-30-7-91 by different witnesses the 286 silver bricks were weighed found to be 9337.505 Kgs. and value of all the seizures was ascertained to be Rs. 6,61,93,585/-. The sample of silver bricks was assayed by Govt. of India Mint Mumbai and fou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as sent to Kasargod by John with Rs. 1000/-. 5. After investigation, issue of show cause notice and after adjudication proceedings, the Commissioner in the impugned order confiscated the silver bricks under seizure absolutely to the government as well as the broken vessel. He also imposed penalty on various crew members. A penalty of Rs. 15 lakhs has been imposed on Shri Abdullah Hussain. Shri Omar Adam captain of the vessel and Shri Abdullah Hussain are in appeal against the impugned order. 6. Detailed written submissions were filed on behalf of Shri Omar Adam and the written submissions as submitted are reproduced below : "In this case, seizer effected on 25/26/27 July 1991 at Velas, Tal. Mandangad. A show cause notice was issued to the appellant on 7-1-1992. Appellant submitted his reply through Supdt. of Special Prison, Ratnagiri and denied this charges leveled against him. He was informed through advocate the order of confiscation of silver, which was passed in December 1997 Shri S.G. Narang, Commissioner of Customs (Preventing), Puna. While issuing show cause notice, department attached annexure stating description of property, which is attached by the department an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lice inspector Shriwardhan submitted letter to Supdt. of Customs along with following documents in respect of vessel " AL-AZER" . (1) Craft certificate of registry i.e. vessel registration certificate. (2) Seamen cards of the crewmembers. (3) Customs clearance (Fujairh fort, which shows Omar Adam was captain of the vessel and vessel was going to Singapore). (4) Customs clearance certificate (stating that silver was in the vessel). (5) General export manifest and Omar Adam was shipper consignee (name of vessel was AL-AZER description of cargo was silver. Department had relied on said documents along with letter of P.S.I. Shriwardhan (copies are attached with list.) This fact shows that the journey of vessel Al-Azer was official one. The vessel officially left Faruja Fort for Singapore and Omar Adam Shipper Consignee. The above said documents were supposed to be in the custody of captain of the vessel, but because of natural calamity, appellant could not carry the said document and produce before the Customs authority, but due to the distress condition of the vessel appellant lost the documents he could not produce the said documents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act, which states that the statements recorded under Custom Act recorded by Gazetted Officer are admissible in evidence but this proposition of law is partly correct. Though the statement recorded under the Customs Act are admissible evidence the said statement must be free from doubt and statement must be voluntary. This must not be subject of- (1) Misrepresentation or obtain by fraud or force and must not be subject to physical or mental torture. In this case the appellant and others were in custody of department or arrested on 2/8 and they were produced before the court on 8/8. So this statement cannot be said to be voluntary. (2) Similarly, those statements are not recorded in a language known to the appellant. (3) And proper procedure under Sec. 108 of Customs Act is not followed by the concerned officer that can be seen from their cross-examination. (4) There is no evidence in what language officer asked question to the appellant and who translated the reply of appellant. Similarly, the alleged statements were not record in the language known to the appellant as observation was made by the Commissioner in order under Appeal ( ). If the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ether it is true and trust worthy. If the above observations are perused it can be seen that the order under appeal is against established legal position. The same view has been expressed in- 1956 AIR S.C. page 56 Mathu v. State of Uttar Pradesh (1) Confessional statement of the co-accused not evidence. (2) Prolong custody prior to recording contention/statement. The seizer effected on 24/25/26 July 1991 is of an abandoned goods or unclaimed goods but the appellant has claimed goods after the show cause notice issued. Department claims it unclaimed goods. Therefore, burden on the department to discharge that the evasion of duty has taken place, but appellants claims the said goods and he further submits that the said consignment was made for Singapore. The part of distinction is Singapore. The port of destination is Singapore. Therefore, question of duty will not raised. Present seizer is because of accident therefore question of duty or evasion of duty will not arise if appellant had tried to remove the goods without intimation to department or without payment of duty then he will have be guilty of evasion of duty. But in this case appellant was trave ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... weather vessel was not sea worthy, it reached the shore by the force of wind and crashed. He relies upon the registration certificate declaration filed before UAE Customs in support of his contention that the vessel was carrying legitimate cargo and the cargo should be released to him so that it can be delivered to the customers in Pakistan to whom they were supposed to be delivered. Further, he also submits that there is no evidence to show that the vessel was fired upon and while escaping from the coast guard vessel, the vessel crash landed is not correct. He submits that no evidence has been produced to show in the form of log book maintained by the firing authority, the timing of the firing etc. Therefore if the departments were to produce evidence relating to firing, it would show that his contention that there was no fire and the vessel crash landed because of bad weather would be established. Further, he also submits that the police inspector immediately after seizure handed over documents such as vessel registration certificate, sea-men cards of the crew members, customs clearance certificate showing Shri Omar Adam as the captain and the destination as Singapore, customs cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Further, the statements of the crew members have corroborated each other. 11. In view of the fact that in prosecution proceedings which require evidence of much higher standards and require proof beyond reasonable doubt, the Hon'ble Chief Judicial Magistrate reached the conclusion that the goods were liable to confiscation, and in view of the evidences and other facts in this case, we do not find any reason to interfere with the decision of the Commissioner to confiscate the silver absolutely. Further, even now, it has not been made clear as to who is the owner of the goods. Admittedly, Shri Omar Adam was only a shipper consignee and it is not his claim that he was the owner. Therefore, we are in a situation where no owner had not come forwarded at all. Neither the consignee nor the consigner have come forwarded and it is only the captain of the vessel who is trying to get the goods released. In view of the evidence available on record and the result of prosecution proceedings, we do not find any reason to consider the pleadings of Shri Omar Adam. 12. Coming to Shri Abdullah Hussain, admittedly he was the landing agent " he was in touch with the crew members of the vessel" he ..... X X X X Extracts X X X X X X X X Extracts X X X X
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