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TMI Blog1991 (4) TMI 245X X X X Extracts X X X X X X X X Extracts X X X X ..... ster of the Ship. During the investigation that followed, statements of several persons, including the Master of the Ship came to be recorded which were exculpatory. However, in the statement of the appellant, the head cook, which also came to be recorded on 11-2-1989, he is reported to have stated that the concealed gold was loaded in the vessel by one Mr. Agha and Mr. Pinto, the steamer's agents at Dubai, which was to be collected by one Mr. Bryan and Raju at Bombay and that he (the appellant) was to arrange to take the same out from the vessel and deliver the same to Mr. Bryan and Raju, and for that he was to get remuneration of 10,000/- US $. Summons were served on both Agha and Pinto at Dubai, in reply to which they sought for time to appear and hence fresh summons, were issued which were not served on them and as such the statements of those two persons could not be recorded. The authority, however, issued a show cause notice dated 2-8-1989 on the captain of the ship, the appellant and Mr. Agha and Mr. Pinto, to show cause why penalty under Sec. 112 of the Customs Act, should not be imposed on them and why gold, as also the vessel seized, should not be confiscated. In the adj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant has made his position absolutely clear in the declaration of retraction given by him before the Metropolitan Magistrate on 27-3-1989 and there is no reason to disbelieve the same, and when the statement is not proved to be the voluntary declaration, the very foundation of the conclusion ceases to exist, and the finding arrived at is not sustainable. 5. Mr. K.M. Mondal, the Ld. SDR, however, supported the order and submitted that mere use of a typewriter in recording of the statement would not indicate raising of the presumption against the investigation. He submitted that Mr. Talverkar, the officer recording the statement of the appellant, did give the name of the typist, in his cross-examination and the appellant who was then represented by a lawyer, could have asked for cross-examination of the typist. Pleading that the retraction came at a very belated stage, Mr. Mondal drew our attention to the concluding portion of the retraction dated, 27-3-1989, and submitted that the appellant retracted from his statement involving others, only when he felt that the others who assured to help him out, did not do so. In the submission of Mr. Mondal, the retraction, being one also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raints, one can hardly resist mentioning that here, the principal culprits have gone untouched. We are tempted to make the observation in view of the facts on record, that though named by the appellant, no serious attempts appear to have been made to secure presence of Mr. Agha and Mr. Pinto for the purpose of recording statements under Sec. 108 of the Customs Act, and the summons sent to them second time were not served though, they did receive the summonses initially issued. No cause for non-service is pleaded even before the adjudicating authority before whom this point was agitated. Further, even going by the alleged admission of the appellant, it was not he but somebody else, who was/were instrumental in loading and concealing the gold in unoccupied cabin, whose key remained with the Chief Officer and the Captain of the Ship having the Master key. They seem to have taken it as a gospel truth, when they were told that the other set of keys were missing though it was a hard fact that some one had the key with which the said cabin was opened at Dubai, and was also to be opened at Bombay for taking the gold out. Prima suspects could be those in charge of the cabin. No search seems ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oach me in the ship in Bombay disclosing their names as Raju and Bryan and mention me the exact location where the gold is concealed. After disclosing the cavity, my work would be to remove the gold from the said place and hand over the same to those persons i.e. Shri Raju and Bryan. For doing this work they pay me US $ 10,000 at the time of taking delivery. Since this amounts to smuggling, I did not accept their proposal. Thereafter, on our next trip to Dubai they again and again approached me for the same but I repeatedly refused to work for them since I was satisfied with the salary I was getting. This time i.e. on 3rd Feb., 1989, when our ship reached Dubai Mr. Agha and Pinto again approached me and told me that it is a simple work and there is no risk involved in it and further told me that they have made necessary arrangement at Bombay to safely clear the said gold. On their repeated persuation, I agreed. At about 6.30 p.m. I went to city alongwith my colleagues for shopping and came back around 10 p.m. when I was informed by Agha and Pinto that they have already concealed the gold on board the ship. After reaching Bombay two persons who will disclose their names as Raju and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rchasing, or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under Section 111,..." Going by what the appellant has stated, he was not given custody or even constructive possession of the gold, as he was kept unaware of the place of concealment, and the entire thing was to be manned by either Mr. Agha and Pinto or Mr. Bryan and Raju. He could also not be attributed to have been carrying, removing, depositing, keeping, concealing, selling or purchasing the seized gold. Harbouring would call for some specific act of keeping the goods out of detection, which the appellant had not done. Then, to implicate the appellant, he has to be brought under the residue clause, "in any other manner dealing with goods". However, till the seizure, except being told that the gold was concealed in the vessel, he had not dealt with the said goods. There was not even an attempt made by him in relation of the action specified in the section. Agreement to abet at a future date, cannot be the one where Section 112(b) could stand attracted, as it is the commission of the act which is punishable, and not the intention to commit an offence at the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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