TMI Blog1989 (11) TMI 161X X X X Extracts X X X X X X X X Extracts X X X X ..... umber of the pieces of silver and its weight which were kept in the secret cavity. As a result of the search of the truck, a few other documents being relevant were also recovered from the truck. Both the drivers namely S/Shri Jagir Singh s/o Bakhshish Singh 1st driver, Jaginder Paul Singh, 2nd driver of the truck and Sukhdev Singh, cleaner of the said truck were asked to produce any bill, cash memo, transport voucher or any other evidence documentary or otherwise in support of legal acquisition/possession or transportation of the silver within the specified belt of 50 kms. from the Indo-Pak border which they failed to produce. The staff, thus, on a reasonable belief that the silver weighing 566.500 kgs., was meant for smuggling out of India and was in the process of smuggling, without any transport voucher as required within the specified belt of 50 kms. from the Indo-Pak Border, seized the above said silver weighing 566.500 kgs., Indian currency Rs. 20,000/- (allegedly being the sale proceed of gold) recovered from the truck and the truck PJE 1555 used for transportation of the contraband silver concealed in the cavity of the truck, for action under the Customs Act, 1962 in contr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Singh and Kanwarjit Singh that they were loading some contraband in the truck and transporting the same to Delhi and vice versa. Sh. Mewa Singh of M/s. Mewa Singh Bros. of Sirhind also stated that he made the secret cavity in the truck at the instance of S/Sh. Harpal Singh and Kanwarjit Singh. Shri Beer Singh s/o Jit Singh, who was working as domestic servant with Sh. Kanwarjit Singh in his Kothi B.H. 9, Shalimar Bagh in Delhi also stated that two trucks drived by S/Sh. Jagir Singh and Wali used to come to the compound of Kothi No. B.H. 9, Shalimar Bagh in Delhi, and either of Harpal Singh, Kanwarjit Singh and Avtar Singh always remained present in the kothi. He had been overhearing the talk on the telephone which was installed near the kitchen, between these three persons and some other partners. The talk was mostly about silver and gold having reached or despatched and their safe arrival. He stated that whenever trucks arrived he was locked in the last room of the kothi and the door was unlocked only after the unloading and loading was complete. The statement of Sh. Jagir Singh that Kanwarjit Singh was also partner in the smuggling of silver seized on 16-3-1983 has been corrobo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he quasi-judicial proceedings initiated by the department. The statements of Jagir Singh were retracted as late as 28-4-1983 after they were recorded on 16/17-3-1983. No reliance on those retractions could be placed. Further, as found out by the adjudicating authority statements of Jagir Singh are corroborated in material particulars by Mewa Singh of Sirhind who made the secret cavity in the truck at the instance of S/Shri Harpal Singh and Kanwarjit Singh. Statement of Shri Beer Singh cannot be treated as a hear-say evidence as contended by the appellants. It is an admissible piece of evidence and corroborates in material particulars; the statements of Jagir Singh, Prakash Chand Lunia and Narender Kumar Lunia. We also do not find that the penalty of Rs. 25,000/- imposed on Shri Kanwarjit Singh, the appellant is in any way a harsh one, having regard to the quantity and value of silver attempted to be transported to the specified area on the Indo-Pak Border. We have, therefore, no reason to interfere with the penalty of Rs. 25,000/-imposed on the appellant Shri Kanwarjit Singh. Accordingly, we confirm the same. Shri Jagir Singh - The adjudicating authority s findings regarding pena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... smuggling of contraband silver and gold and therefore liable to penal action under Section 114 of the Customs Act, 1962." 3.2 Jagir Singh s pleas on the merits of the case are vague and general in nature. He has also pleaded that the conduct of the appellant was throughout bona fide and cooperative with the staff. He had made no bid to escape with the truck when signalled on 16-3-1983. This circumstance is suggestive of the appellant being unaware of the contraband nature of the goods. The statements dated 16-3-1983 and 17-3-1983 which form the basis of penal action against him have been retracted by him soon thereafter i.e. on 28-4-1983. It has also been urged that the amount of penalty is too harsh and excessive and without comprehending the fact that he was merely getting a salary of Rs. 400/- p.m. He had admittedly no interest in the smuggling activities of others and apart from the salary the appellant did not receive any other financial gain or reward. 3.3 We have carefully considered the above pleas of the appellant Shri Jagir Singh. We do not agree with him that the statements dated 16-3-1983 and 7-3-1983 cannot be relied in evidence by the adjudicating authority. Retra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he conveyance or animal proves that it was so used without the knowledge or connivance of the owner himself, his agent, if any, and the person in charge of the conveyance or animal and that each of them had taken all such precautions against such use as are for the time being specified in the rules: Provided that where any such conveyance is used for the carriage of goods or passengers for hire, the owner of any conveyance shall be given an option to pay in lieu of the confiscation of the conveyance a fine not exceeding the market price of the goods which are sought to be smuggled or the smuggled goods, as the case may be." It is clear from the language of Section 115(2) that the conveyance is liable to confiscation unless the owner of the conveyance proves that it was so used without the knowledge or connivance of the owner himself, his agent, if any, and the person in charge of the conveyance. In the present case the person in charge of the Truck No. PJE 1555 was obviously Jagir Singh. His knowledge about the truck carrying the contraband goods is not in doubt on the basis of his own statement. Accordingly, the truck is liable to confiscation under Section 115(2) irrespective ..... X X X X Extracts X X X X X X X X Extracts X X X X
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