9911796707
TMI Blog1992 (9) TMI 229X X X X Extracts X X X X X X X X Extracts X X X X ..... ime was working as driver of Shri Mammu Haji. Further investigation led to the seizure of 200 gold biscuits of foreign origin on 8-11-1986 from the residential premises of Shri M. Appukuttan and further quantity of 72 foreign gold biscuits on 24-11-1986 from the premises and surroundings of residence of Appukuttan. Statements were recorded from Sasidharan, Appukuttan. Sasidharan implicated Mammu Haji, the person who according to him employed him as driver and the one who entrusted the Car in which gold was concealed and since Sasidharan felt that he had not been adequately compensated by Mammu Haji for similar errands earlier carried out by him regarding delivery of gold, instead of taking the car to the destination as desired by Mammu Haji, he chose to take away the car and gold jackets contained in the car. Two statements were recorded from Sasidharan, one on 9-11-1986 and the other one on 21-11-1986. While there is variation in the version as to how gold was kept in the car and also the car in which it was carried, in both the statements, he confirms the fact of having carried gold entrusted by Mammu Haji and as having taken away gold and concealed the same and thereafter having ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot against appellant. He pleaded that in the absence of corroborative evidence regarding seizure of gold from the appellant or any other direct connection of the appellant with smuggling of gold or recovery of same, the offence could not be taken to have been proved against him. He pleaded that the mention of telephone numbers in the diary recovered from Sasidharan cannot be linked up with the appellant. He also referred to the statement of Sasidharan in regard to loading in Car No. CNO 3333 at Karadukka. He pleaded that the house from where the Car had been taken by him had not been identified. He pleaded that Sasidharan has stated that although appellant had accompanied him as escort when gold was being taken to Bombay on behalf of Mammu Haji and one Hegde was stabbed and thrown out of the Car, no evidence in support of this version has been led by the prosecution by way of either recovery of knife nor there was any complaint filed by the person who was stabbed. He drew our attention to the contradictions in the statements of Sasidharan. In regard to the loading of the Car how Sasidharan took the Car with gold, he pointed that there was material contradiction in the statement giv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bombay. Companion's name Hegde. Hegde's information about Hnda and others going by Fiat Car KRR 9495 to Bombay. Hegde falling asleep......Stabbing incident of Hegde and driving the car towards Mangalore.... ....Hitting cattle....damage to vehicle (Not verified)....reached Mulleria Via Badiappa and reaching Appukuttan's residence. Removal of the gold and No. Plates CNO 3330. 5. After hiding gold reached Kasargod on 18-10-1986 morning in same car. Phoned from Rice Mill at Karnathakkad to 3 Star Enterprises. Fort Road at No. 378. Haji picked up. Told him to take away the car on payment of Rs. 5 lakh pay Rs. 1 lakh on 23-10-1986 and balance on 10-11-1986. Agreed to paid Rs. 1 lakh from inside 3 Star Enterprises on 23-10-1986 at about 11 o'clock. 17-10-1986 onwards was on the....along with friend Ganesan to Kannangad - rented room at Urvasi lodge (not verified) in name of Ganesan and Chandran. Next day reached Cannanore by train. Went to lodge there. Checked out at night and returned to my house at Korakkopde by taxi. Reached house of Krishnan's sister at Kundromuzhi. After four days along with Krishnan, Shyarnsunder, Satheesam went to Korakkodi by taxi; from there to Kuttikkoil to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urn for the gold and one Mohanan came as his intermediary to arrange for the compromise. He pleaded that as a follow-up action a diary was seized from the house of Shyamsundar, brother of Sasidharan who gave a statement on 5-12-1986 and he had stated about the disposal of some of the gold and the learned D.R. referred to para 43 of the Order-in-Original. He pleaded that Shyamsunder also clearly stated that Mammu Haji had been to their house several times to make enquiry about Sasidharan and also threatened them and he also stated that there were more biscuits than the 200 that were kept with Appukuttan which had already been seized and he was not aware where those other had been concealed and confirmed his role in the negotiation for bringing about a compromise. He also admitted to having received 25 gold biscuits from Appukuttan and V.K. Krishnan and of these, two biscuits he had converted into gold ornaments for his family, four biscuits he had entrusted to one K. Gopalan and the remaining 19 biscuits he had sold to Shrirama Jewellery, and received Rs. 3 lakhs and sale proceeds of five gold biscuits has to be received from the said Jewellery. He also admitted that the currency of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ook for intermediaries who could persuade Sasidharan to part with the gold. He pleaded Sasidharan had worked with Mammu Haji as driver and there was no reason why he should implicate Mammu Haji. Shri Satish Sunder, the learned Counsel for the appellant in reply pointed out that in Para 119, the learned lower authority has held that the Car in which the gold was carried bore No. CTX 5568 belonging to B.M. Mohammed. The question of therefore, Mammu Haji being linked with the gold would not arise. He pleaded that the car bearing CNO 3333 in which Sasidharan has stated that gold was carried for delivery to Bombay does not belong to appellant Mammu Haji as no evidence in this context had been produced. He pleaded that in the absence of any direct evidence implicating Mammu Haji no penal action can be taken against him. 4. The point that falls for consideration in the appeal is whether in the absence of any recovery of gold from the appellant based on the evidence on record by way of statements from different persons, the appellant can be found to be liable in terms of Section 112 of the Customs Act, 1962. We observe that the lead in the matter came in the hands of the authorities conse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This clearly establishes that there was dispute between Sasidharan and Mammu Haji involving heavy stakes were involved. Mohanan, one of the intermediaries was also paid Rs. 5,000/- which was stated to be for party fund for the role played by him for arranging for the return of the gold. The question therefore, that arises is whether in the face of the evidence on record of a large number of persons who have clearly stated that Mammu Haji was trying to secure a big and valuable cargo which was later revealed to be gold, the plea of the appellant that he had nothing to do with the gold under seizure can be accepted. We observe that the defence has pointed out the fact that two statements were recorded from Sasidharan and Appukuttan and there are discrepancies in the two statements and therefore, these statements on account of the discrepancies pointed out did not have evidentiary value. We observe that no doubt there is some discrepancy in regard to make of the car in which Sasidharan carried gold originally and the destination to which it was to be carried. These have been explained by Sasidharan as an attempt to give the authorities into believing that he was having only two jacket ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods and had asked them not to harm Sasi's family and that Mohammed had left with the request that he should not leave without meeting Mammu Haji and that Mammu Haji and Mohammed had come after half an hour and Haji had repeated what Mohammed had said earlier and that he had sent them back asking to co-operate to solve the issue and not to aggravate it and that when he and Krishnan had reached Sasi's house at Karakkode, Sasi's mother had complained that Mammu Haji and his men had been to their house several times and had threatened them, and that nobody had told him then where Sasi was and that the next day K.C. Krishnan, V.K. Krishnan and himself had gone to meet Sasi but Sasi had left that place by then and that K.C. Krishnan had taken him to Nechippadappu at about 9 o'clock where he had met Sasi, for the first time in the company of V.K. Krishnan, and that Sasi had revealed to him that he was having 10 jackets of gold worth Rs. 2.5 crores owned by Mammu Haji, and that then he had asked Sasi to return whole of the gold to Haji otherwise Haji might harm his family members to which Sasi had replied that he had been in the employ of Haji for several years carrying out similar miss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Enough evidence has been brought on record by the statements of the Garage owner i.e. K. Seetharama and that of the painter Sudhakaran in regard to change of the Car number as also the paint, that the Car used for transport of contraband gold belonged to the appellant. Statements given by various persons such as Sasidharan, his brother Shyamsunder, Appukuttan, his brother Dineshan who was instrumental in the recovery of 72 gold biscuits from the milk powder tin secreted in the precincts of the house of Appukuttan, and the various intermediaries such as Maniyani, M. Gopalan, M.P. Mohanan, Narayana Bhatt, prominent among these being, Maniyani the Abcari Contractor and Mohanan, who have intervened to settle the dispute between Mammu Haji and Sasidharan over return of the Gold jackets and payment of remuneration, go to show that the gold under seizure was owned by Mammu Haji. Statements of these persons are further supported by the statement of Smt. Seethamma, mother of Sasidharan who stated that Sasi had told her on 26-11-1986 that he was going for some work of Mammu Haji and that Mammu Haji and Mohammed had made enquiries with her about the whereabouts of Sasidharan. Therefore, in ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
