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TMI Blog1989 (10) TMI 168X X X X Extracts X X X X X X X X Extracts X X X X ..... antime, a person namely D.S. Sodhi, r/o B-4/6, Vasant Vihar happened to pass that way. He was also made to join the Police party. On questioning about the contents of the suitcase, U.K. Agarwal first gave some evasive replies but ultimately admitted that he was carrying some contraband gold and its sale proceeds. He further stated that another boy namely M.K. Agarwal was also with him and that they were going to catch a flight from Delhi Airport. Since the police station (Vasant Vihar) was at a stone's throw from the place of their interception, both of them were brought to the Police station in the same taxi. D.S. Sodhi also accompanied. From the cream-coloured suitcase in the presence of two witnesses contraband gold in the shape of bars with foreign markings (total number 55) and weighing 11,515.600 gms. were recovered. On further search Indian currency notes wrapped in six bundles amounting to Rs. 5,31,852/- were also recovered. From another suitcase carried out by U.K. Agarwal, a telephone diary, few papers and used clothes were recovered. Both these suitcases were taken by the Police officers under a seizure memo which was signed by the two witnesses namely Shri D.S. Sodhi an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the first week of November 1981 and delivered the same to one Omi Jalan in Kalba Devi whose telephone Nos. 322676 (office) and 813878 (residence); that these numbers are entered in his pocket diary which was recovered from him by the police on 17-12-1981 and bear his signatures; that he did not receive the sale proceeds of the said gold from Omi Jalan for said consignment as Omi Jalan told him that he would transfer the same directly to Chouth Mal Jatia; that the consignment of gold was given to Omi Jalan at his business premises; that Chouthmal Jatia told him in that connection that he would himself settle the account with Omi Jalan for that consignment of gold; that those 200 tolas of gold delivered by him at Bombay were received by him in Delhi from various carriers namely T. Gurung, S. Gurung and D. Gurung who were specifically engaged by Chouth Mal Jatia and his associates namely C. Gurung and Mohan Dhariwal for transporting gold from Kathmandu to Delhi; that he was fully aware that the gold bars received by him from the aforementioned persons bore foreign markings and were being smuggled into India; that earlier also he had visited Bombay to render accounts of the disposal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the consignment of gold weighing 313 ½ tolas equivalent to 11515.600 gms. was to be taken to Bombay, the full account of which was written on a document at S. No. 8 which has been recovered from the baggage of M.K. Agarwal by the police on 17-12-1981; that he had been shown the said documents which had been signed by him in token of his identification; that the said document was written by Chouth Mal Jatia on which portion marked 'X' shows an entry of 313 ½; U.K. BBY which he (U.K. Agarwal) explained that the word U.K. stood for Umesh Kumar and BBY stood for Bombay; that at the bottom of the document the word '313 ½ was also written which denoted the balance of the gold with them; that on the said document there was also a mention of the sales made to Kishore and Raghu: that besides the gold he was asked by Chouth Mal Jatia to take the sale proceeds of smuggled gold disposed of by him or by Chouth Mal Jatia directly to parties in Delhi; that in so far as he (U.K. Agarwal) was concerned, he delivered smuggled gold weighing 350 tolas (approx.) to one Raj Kishore Gupta in Mohalla Vakilpura, Jama Masjid area earlier. That he delivered the gold himself to Raj Kish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This statement corroborates many of the details given by U. Kumar in his statement. Apart from this Shri Sehgal gave a statement of what he observed about these persons during their stay in the Guest House. He also recognised from a photograph as shown to him by the Directorate of Revenue Intelligence Officers as Mr. C. Mal who stayed in the Guest House and in token of identification of C. Mal (Chouth Mal Jatia) he put his signature on the photograph. He also recognised from a photograph U. Kumar i.e. Umesh Kumar Agarwal and in the same fashion he signed that photograph. 1.7. Similarly, Shri Sanjay Thapar, Manager Hilton Lodge, Vasant Vihar where M.K. Agarwal admitted to have stayed and he also stated that one Rajesh also stayed in the hotel. 1.8. Bhupender Singh, taxi driver corroborated some of the statements of U.K. Agarwal. Shri D.S. Sodhi, another panch witness corroborated what he had witnessed regarding search and seizure of gold and Indian currency and other articles from U.K. Agarwal. 1.8A. On the basis of disclosures made by Shri U.K. Agarwal in his statement dated 18-12-1981 Directorate of Revenue Intelligence Officers searched the premises belonging to Raghunandan Ja ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lligence Officers. Certain documents were recovered during the search and were seized as being useful for the purpose of enquiries under the Customs Act. Raj Kishore Gupta was not present at the time of search. He was issued summons thrice on 18-12-1981, 29-12-1981 and 2-1-1982 for the appearance on different dates but he was always reported to be out of Delhi. 1.10. On 5-1-1982 acting on information his premises at 1219/6, Katra Satnarain, Chandni Chowk, Delhi were searched. As a result of search, textiles of foreign origin valued at Rs. 2000/- were recovered from the said premises and are the subject matter of the separate proceedings under the Customs Act. 1.11. Letter dated 20-12-1981 was received from Raj Kishore Gupta from Kathmandu in which he requested to know the reasons as to why and for which purpose he was being summoned. Summons were thereafter issued to him at his Kathmandu address on 13-1-1982 for appearance on 26-1-1982 but he expressed his inability to appear on the ground of his illness. Summons again sent on 3-2-1982 for appearance on 8-2-1982. Smt. Geeta Gupta W/o Shri Raj Kishore Gupta informed that her husband was out of Delhi. Finally, he appeared on 11-2-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he did business of export of rapeseed oil; that except that business he did not do any business with Shri Puran Mal Bansal; that he did not know Chouth Mal Jatia. In his further statement dated 26-5-1982 he stated that he did not know Shri U.K. Agarwal; that telephone nos. of his business premises were 347556 and 322676 and that of his residence as 813878; that he did not know how his telephone nos. were available in the diary of U.K. Agarwal; that he did not receive any gold from U.K. Agarwal and that he did not even know U.K. Agarwal. 1.13. Scrutiny of the documents including the diary of U.K. Agarwal revealed that the name and telephone nos. of one Binod Bansal who on discreet enquiries traced as Vinod Kumar S/o Puran Mal Bansal r/o 12-E Kamla Nagar, Delhi, was actually engaged in disposal of smuggled goods on behalf of R.K. Agarwal of Hongkong and Chouth Mal Jatia of Kathmandu. Vinod Kumar Bansal's residence and business premises were searched on 30-12-1981 which resulted in recovery of foreign goods valued at Rs. 5000/- and several other incriminating documents. Vinod Kumar Bansal, inter alia, stated that he knew Chouth Mal Jatia and others as they used to come at Mr. Agarwal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 74 of the Gold (Control) Act as follows :- S.No. Name Penalty u/s 112 of C.A.1962 Penalty u/s 74 of GCA '68 1. Shri Om Prakash Jalan 2,50,000/- nil 2. Shri Raghunandan Jalan -do- -do- 3. Shri Raj Kishore Gupta 2,50,000/- -do- 4. Shri Vinod Bansal 2,00,000/- -do- 2. Learned advocate Shri N.C. Chawla appearing for Shri Raj Kishore Gupta has urged that the adjudicating authority has relied solely on the statements of U.K. Agarwal and M.K. Agarwal which were subsequently retracted. He has submitted that, according to the statement of U.K. Agarwal 350 tolas of gold were delivered to him by various carriers in Delhi. This gold has been seized by the Police/Customs officers on 17-12-1981/18-12-1981. It was, therefore, not possible that 350 tolas of gold could be delivered at all to Raj Kishore Gupta, the appellant herein. He, therefore, points out that averments made in the statement of Raj Kishore Gupta relied upon by the department are not correct. The statement, therefore, has obviously been taken under threat and coercion. In this connection, he further points out that while the taxi driver Bhupender Singh's statement talks of visit to Ja ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... art of the record and also relied upon in the show cause notice. He has clearly stated that he did not receive any gold from the two boys U.K. Agarwal and M.K. Agarwal and that neither he knew those boys nor he had ever met them. He also could not say as to why the elder boy U.K. Agarwal whose photo had been shown had given a statement against him (Raghunandan Jalan). 3.3. Yet another plea made by Shri Basu is that show cause notice is defective inasmuch as it has already concluded the charge against his client. He draws attention in this connection to sub-para (xi) of para 22 of the show cause notice which states as under :- "And whereas Shri Raghunandan Jalan acquired possession of the smuggled gold and is concerned in purchasing and otherwise dealing with the said gold knowing and having reason to believe that the said gold is liable to confiscation is liable to penal action under Section 112(b) of the Customs Act, 1962". He states that the aforesaid allegation against Shri Raghunandan Jalan clearly indicates that the Collector has already concluded about the guilt of Raghunandan Jalan and in these circumstances there can hardly be any fair trial on the part of the authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h U.K. Agarwal and M.K. Agarwal should not be looked into at all because they are void and non-est. On a query from the Bench as to whether any copy of FIR lodged against the two persons has been brought on record by the appellants, learned advocate admitted that it had not been done so. He, however, undertook to inform the Bench by 20-7-1989 i.e. by two days after the hearing with regard to any such FIR. No such FIR against U.K. Agarwal and M.K. Agarwal has been brought on record so far. Accordingly, we shall ignore this plea of the learned advocate. 4.1. He further points out that principles of the Evidence Act which essentially incorporate principles of natural justice should be made applicable while appreciating the evidence before an adjudicating authority. For this proposition he relies on AIR 1961 SC 264 (Ambalal v. Union of India) which holds that fundamental principles of Criminal jurisprudence must apply in such cases under the Customs Act. 4.2. He further submits that statements of U.K. Agarwal and M.K. Agarwal who were co-accused could not be used as substantive pieces of evidence. Apart from that the statements are also retracted. There is no independent corroborativ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [1984 (15) E.L.T. 289). This decision upholds the proposition, according to her, that Customs Officer, exercising authority either under Section 107 or 108 of the Customs Act is not a Police Officer and the person interrogated is not a person accused of an offence. It cannot, therefore, be held that summoning of a person from an officer was violative of Articles 20(3), 21 and 22 of the Constitution. She also relies on another observation of Madras High Court in the said judgement which holds that a version/statement made before a Customs Officer is admissible in law and not hit by Section 25 or Section 26 of the Evidence Act. She further urges that retraction of U.K. Agarwal and M.K. Agarwal from their statements after lapse of 10 to 12 days should not be given much credence because such a belated retraction is of no consequence. Similarly, she urges that the exculpatory statements of the appellants are of no use to them because these are statements which are made after a great deal of thought on legal advice as is apparent that the appellants had been evading the summons issued by the authority. Regarding the question of jurisdiction over Shri O.P. Jalan raised by the ld. advocat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a made before us was that fundamental principles of criminal jurisprudence must apply in deciding the case against the appellants for the purposes of penal action against them. There cannot be any quarrel with this broad proposition of law but the further proposition urged before us that the statements were retracted and these are statements of co-accused and therefore, these could not be used as substantive pieces of evidence but only to lend assurance to the guilt of the accused stands. Rebutted by the judgement of Kerala High Court in the case of K.A. Haji mentioned supra relied upon by the learned SDR. The following para in the said judgement [1984 (15) E.L.T. 129] is a complete answer to the plea of the learned advocates submitted during the course of hearings :- "The petitioner was given copies of statements of the co-accused. They had not retracted from their statements until they said in their reply to the show cause notice that they signed the statements under pressure. In the case of Abdulla Kunhi, his reply to the show cause notice was sent on 9-8-1974, whereas his statement had been recorded as early as 19-2-1974. The same was the case with Tajuddin. Theruvath Kasmi re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondents can be justified, not only on the basis of the evidence they relied upon, but also on the basis of Ext. P1." 8. It may be mentioned here that it is not merely the statements of U.K. Agarwal and M.K. Agarwal which form the basis of findings of the Collector against the appellants but there are other pieces of evidence such as slip (S.No. 8) referred to in the statement of U.K. Agarwal, other incriminating documents like telephone diaries, statements of Sanjay Thapar, Avinash Sehgal which amply corroborate the statements of both U.K. Agarwal and M.K. Agarwal in several details. Apart from that there is circumstantial evidence of two of the appellants herein namely Raj Kishore Gupta and Raghunandan Jalan evading the service of summons for appearance before the investigating authorities for a long time. Similarly, the statement of O.P. Jalan was also recorded much later on 9-3-1982 i.e. long after the incident of 17-12-1981 or of the incident of search of his residential and business premises on 19-12-1981. Important circumstance which is of relevance in this case is that both the persons U.K. Agarwal and M.K. Agarwal have jumped the bail. The circumstances in which th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rther points out a discrepancy between the statement of Shri Bhupender Singh and the statement of U.K. Agarwal. Learned advocate urges that while the taxi driver talks of his visit to Jama Masjid area, U.K. Agarwal's statement does not at all refer to this Jama Masjid area. He also points out to the fact that Shri R.K. Gupta has completely denied in respect of gold from U.K. Agarwal. There is no reason to disbelieve that statement. He has further pointed out that the allegation against Shri Raj Kishore Gupta speaks about the said acts and omissions on the part of the appellants but it does not clearly spell out specifically those acts and omissions. He had also mentioned that the statement under Section 108 could not be recorded because the two apprehended persons M.K. Agarwal and U.K. Agarwal were transferred from Police custody to Customs custody and therefore, the question of issuing a summon does not arise. Lastly he had submitted that there is no specific finding of liability to confiscation of the alleged delivery of gold made by U.K. Agarwal to Raj Kishore Gupta. In the absence of any such finding penalty could not be sustained. 8.3. We have carefully considered the above p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kumar Agarwal in his statement projected the involvement of Om Prakash Jalan, Raghunandan Jalan and Raj Kishore Gupta in the matter of disposal of foreign marked gold in India. He disclosed that he delivered 200 tolas foreign marked gold to Omi Jalan personally at Bombay and gave the residential and office telephone of Omi Jalan. These telephone Nos. of Jalan were written in the diary seized from Umesh Kumar Aggarwal/Mukesh Kumar Aggarwal. He further disclosed that he also delivered foreign marked gold previously to Raj Kishore Gupta at his residence at Vakil Pura and Raghunandan Jalan at his residence at Sagar Apartments, Delhi and identified their residence as well as photographs. The fact that Chouth Mal Jatia was known to Raghunandan Jalan and Raj Kishore Gupta and they went to Kathmandu and met Chouth Mal Jatia are sufficient to prove the involvement of Om Prakash Jalan, Raghunandan Jalan and Raj Kishore Gupta in the disposal of smuggled gold into India on behalf of Chouth Mal Jatia. I, therefore, hold Om Prakash Jalan, Raghunandan Jalan and Raj Kishore Gupta guilty in the disposal of smuggled gold in India". 8.5. From the aforesaid finding it is apparent that the gold in que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disbelieved, it is apparent from his findings, as already extracted above while dealing with the penalty on Shri R.K. Gupta. No doubt is left that Collector has not believed the statements of the appellants herein and this is rightly so, as already referred to in the general discussions, these statements have been given by the appellants after a long time after the incident and by evading a number of summons. The findings of the Collector with regard to the penalty on Raghunandan Jalan and O.P. Jalan are cogent, convincing and based on sufficient evidence on record - oral, documentary and circumstantial. We, therefore, uphold the penalty imposed on Raghunandan Jalan and O.P. Jalan. Vinod Bansal - In so far as the question of penalty on this appellant Vinod Bansal is concerned, we find sufficient force in the pleas advanced by Shri N.C. Sogani, the learned consultant. Statements of U.K. Agarwal and M.K. Agarwal form the bed-rock of the charges against the various persons involved in this case. It is pertinent to note, as rightly pointed out by Shri N.C. Sogani, that the name of the present appellant does not figure in the statements of U.K. Agarwal and M.K. Agarwal. The Collector's ..... X X X X Extracts X X X X X X X X Extracts X X X X
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