TMI Blog1994 (7) TMI 204X X X X Extracts X X X X X X X X Extracts X X X X ..... esh Kumar Sharma, 10 gold biscuits bearing foreign markings and Rs. 14,750/- were recovered from Shop No. 1190, Kucha Mahajani, Chandni Chowk, Delhi. On the same date, there was a further recovery of 100 gold biscuits of 10 tolas each from one Mr. Ashok Thakkar who was noticed moving about in a suspicious manner near the business premises of the appellant. Interrogation of one Sh. Vinod Kumar Sharma led to further recovery of 80 gold biscuits from Room No. 243, Mewa Hotel, Chandni Chowk. 3. Statements of these persons were recorded in which they named the appellant as the person to whom they were giving the gold biscuits for sale. The search of residential premises of the appellant at D-9/3, Model Town did not result in recovery of anything incriminating. The premises at C-21, Second Floor, Model Town was searched on the basis of the information available that the appellant was likely to utilise these premises to store contraband and sale proceeds of smuggled goods etc. As a result of the search conducted in the presence of Mrs. Sunita Verma, daughter of the appellant herein, Indian currency of Rs. 3,11,768/-, Silver coins, Gold ginnies, jewellery and documents were recovered and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e room for suspicion against the appellant but cannot be a substitute for proof that the appellant had given her the money and shifted her so as to prevent recovery of sale proceeds of smuggled gold. He submits that even from the statements recorded from Sh. Prakash Chand, Sh. Ashok Thakkar etc., what has been brought out is an alleged connection between them and the appellant in past dealings in smuggled gold and there is nothing in those statements to link the appellant with the Indian currency recovered in this case. In the above circumstances, he contends that the burden of proof upon the Department under Section 121 of the Customs Act has not been discharged. He therefore, prays for setting aside the order of confiscation of currency and penalties. 6. In reply, Shri K.N. Gupta, learned SDR draws our attention to the statements of Sh. Prakash Chand, Sh. Ashok Thakkar and Sh. Vinod Kumar Sharma, which clearly link the appellant with the offence. He relies heavily upon the statement of Mrs. Sunita Verma to establish that she was shifted from her father s house by her father in order to escape recovery of the currency which the appellant had obtained as a result of disposal of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 100 per biscuit, that a common friend introduced Sh. Ashok Thakkar to Prakash Chand in January, 1985. That Shri Prakash Chand got Shri Ashok Thakkar employed with his brother in Indore, that in July, 1986, Shri Prakash Chand called Shri Ashok Thakkar from Indore to stay in Bombay, that he (Prakash Chand) sent gold biscuits with foreign markings on 5 occasions, twice in the month of July, once in the month of August and twice in the month of September, (32 gold biscuits each time) through Shri Ashok Thakkar to Shri Jai Narain Verma of Delhi, that Prakash Chand gave Ashok Thakkar a pair of Chappals having specially made cavities for concealing gold biscuits and each time Shri Ashok Thakkar brought gold biscuits from Bombay to Delhi by concealing the same in the chappals, that Prakash Chand introduced Shri Ashok Thakkar to Shri Vinod Kumar in Bombay, that in the first week of November, 1986, he asked Shri Ashok Thakkar to pick up 54 gold biscuits with foreign markings from Shri Jayender Soni in Ahmedabad for further delivery to Shri Vinod Kumar Sharma, that under his directions Jayendra Soni also sent one person with Shri Ashok Thakkar; that Shri Ashok Thakkar and the said pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cealing the gold biscuits, he (Prakash Chand) further stated that a pair of chappals were shown to him by the DRI Officers on 23-11-1986 which he identified to be the same which he had given to Sh. Ashok Thakkar and in token of this he had signed the chappals." Shri Ashok Thakkar corroborates the statement of Sh. Prakash Chand in all material particulars. Shri V.K. Sharma in his statements dated 21-11-1986, 22-11-1986, and 23-11-1986 recorded under Section 108 of the Customs Act, 1962 stated that he was working with Jai Narain Verma from early 1982 to April, 1986. During the course of his employment under Jai Narain Verma he met Prakash Chand who used to bring smuggled gold for Jai Narain. He also stated that under the directions of Jai Narain he used to deliver gold biscuits to Shantlal, Harnath, Mahabir, Kedrra, Rakesh, Bhola sons of Karolbagh, Ashwani, Rohtash and Ram Chander. In April, he left working with Jai Narain and started business of smuggled gold on his own. He stayed in Bhiwani for about one month after he left Jai Narain. He contacted Prakash Chand two three times on telephone from Bhiwani and Prakash Chand told him to wait. On 3rd November, 1986, Prakash Chand se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -11-1986 from C-21, Model Town were those given to her by her father. We agree with the learned Counsel that in the facts and circumstances of this case, which is entirely based upon the statements of co-noticees, the opportunity of cross-examination should have been extended to the appellants. We find that the adjudicating authority has not adduced any reason for disallowing the cross-examination of co-noticees which was all the more necessary in view of the contention before him that the statements of Sh. V.K. Sharma and Sh. Naresh Kumar were recorded under duress. 11. In the case of Kallatra Mahin v. Collector of Central Excise [1984 (16) E.L.T. 622], the Tribunal has held that though the testimony of an accomplice may be treated as a substantive evidence under Section 3 of the Evidence Act, it is very weak and tainted evidence and it requires corroboration in material particulars. The Tribunal relied upon the decision of the Hon ble Supreme Court reported in AIR 1964 SC 1184 (Hari Charan Kurmi v. State of Bihar) in coming to its conclusion. We further find that there is no reason for not recording the statement of the appellant himself and it is not the case of the department ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd [1992 (61) E.L.T. 650 = 1993 (46) ECR 44]. 16. We accept the plea of the appellant that the department has not discharged the burden of proof in the present case, extend the benefit of doubt to the appellant and set aside the impugned order and allow the appeals with consequential relief, if any, due. Sd/- (Jyoti Balasundaram) Member (J) 16. [Order per : S.K. Bhatnagar, Vice President]. - With due respect to Hon ble Member (Judicial) my views and orders in this matter are as follows :- I observe that Ld. DR Shri Gupta s arguments with reference to the statements of Shri Prakash Chand, Shri Ashok Thakkar and Smt. Sunita Verma as also the circumstantial evidences, have a lot of force. 17. I also observe that Ld. Collector has also relied, inter alia, mainly on the above position. However, the order of the Collector shows that cross-examination of some persons was allowed and notes that Counsel for Shri Jai Narain Verma did not want to cross-examine Shri Banarsi Das. He however, cross-examined Shri Madan Lal (a defence witness). It is however, not clear whether cross-examination of Shri Prakash Chand, Ashok Thakkar, Vinod Kumar Sharma and Smt. Sunita Verma was specif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cited the judgment in the case of Ramachandra v. Collector of Customs reported in 1992 (60) E.L.T. 277 (Tri.) = 1992 (39) ECR 155 (T) wherein the Tribunal had held :- Since the charge under Section 121 of the Customs Act has not been proved against the appellant the currency notes cannot be retained by the Department and have to be returned to the appellant. Imposition of penalty was also not legal and proper in the absence of proof of violation of any provisions of the Customs Act. The appellant also cited and relied upon the decision of the Tribunal in the case of Smt. Malar v. Collector of Customs Central Excise reported in 1988 (33) E.L.T. 444 (Tri.) = 1988 (14) ECR 94. In this case the Tribunal had held :- We have carefully gone through the entire case records. We should confess, we do not find an iota of evidence against the appellant to hold that the currency of Rs. 55,050/- seized from her represented the sale proceeds of contraband goods. We also do not find any material on record to show that the Customs authorities either entertained a reasonable belief or could have had reasonable belief to effect seizure of the same in terms of Section 110 of the Act. The me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Counsel cited and relied upon the case law reported in 1985 (5) ECC 46, 1987 (27) E.L.T. 734, 1993 (63) E.L.T. 237. It was pleaded by the ld. Counsel that it is a very accepted principle of natural justice that to give credence to any evidence or guage its probative value or other piece of evidence which is in dispute, the opportunity of cross-examination should be provided. He cited and relied upon the judgment reported in AIR 1977 1627, AIR 1962 108, AIR 1961 48, AIR 1967 203, 1982 (10) E.L.T. 333, 1988 (37) E.L.T. 515, and 1984 (16) E.L.T. 257. The ld. Counsel therefore submitted that the impugned order may be set aside and the appeal may be allowed as has been held by the Member (J). 21. Shri K.N. Gupta, the ld. SDR appearing for the Revenue submitted that it is a fact that there is no finding of the Collector in the order passed by him as to why cross-examination of the persons whose statement was relied upon and on the sole basis for implicating the appellant were not allowed to be cross-examined. He submitted that the appellant had figured in few cases as has been brought out in the Order-in-Original which clearly proved that the appellant was indulging in dealing in sm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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