TMI Blog1995 (2) TMI 178X X X X Extracts X X X X X X X X Extracts X X X X ..... effected seizure of the same under a Mahazar as per the law. The bottles were taken to the Customs House and then subsequently the Tang powder was dissolved in water and the Customs Authorities found the granules of gold and the authorities seized the same under a second Mahazar on the same day. The appellant was examined and he gave an inculpatory statement that he had gone to Saudi Arabia first in the year 1978 on a pilgrim pass and worked there for 3 years in the municipality and was later deported to India and again in 1982 he went to Jiddah and worked in Jiddah municipality and he used to travel often between India and Saudi Arabia and that he had brought Tang Bottles with gold granules and left Jiddah on 29-1-1991 by Saudi Airlines flight for Delhi and reached Delhi about 7.30 PM and he lost the Saudi Airlines Ticket there and on 31-1-1991 he left Delhi for Bangalore by an Indian Airlines flight. Proceedings were initiated after further investigations, which ultimately culmi-nated in the present impugned order. 3. Shri Anandapadmanabha, the learned Advocate for the appellant submitted that in the present case there is a mistake of identity with reference to the person speci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods were not recovered from the appellant s house, the learned adjudicating authority did not permit the cross-examination. Therefore, the impugned order is violative of the principles of natural justice because the appellant is disputing the alleged seizure of the goods in question from his house. The learned Counsel further submitted that there were 7 persons in the house along with the appellant and it is not the case of the Department that the TANG bottles were got concealed in any place and therefore even if they had been recovered from one of the almirahs in the house, the appellant cannot be imputed with the knowledge of same nor said to be in exclusive conscious possession of the same. The learned Counsel submitted that the appellant has nothing to do with the goods in question and disputed the recovery of the same from the house and also urged that he never went abroad. Finally, the learned Counsel submitted that the statement is untrue and improbable since the important allegation with reference to the appellant s frequent travel abroad is found to be disproved by the passport itself and he produced the passport in support of his plea. The learned Counsel therefore submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iate this plea, the appellant in para 10 of the reply to the show cause notice, wanted to cross-examine Shri P. Mammed and Shri C.T. Sulaiman Haji who are the mahazar witnesses. When the place of seizure itself is disputed and that the appellant wanted to cross-examine the mahazar witnesses to prove his point, in my view, such a cross-examination should have been permitted because the primary issue for consideration is as to whether the seizure was from inside the appellant s house or from outside the house. The learned adjudicating authority has rejected the plea for cross-examination and in my view such a rejection and denial of the right of cross-examination in the above context, is not legal and sustainable. I would also like to refer to the plea of the learned Counsel for the appellant that there were a number of inmates in the house and on going through the mahazar I find that the seizure was only from one of the almirahs and it is not the case of the Department that the TANG bottles were got concealed in any place. In such a situation when a number of persons were there in a residential house and when the goods in question were not got concealed, it would be difficult to i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t ever travelled abroad at all. On scrutiny of the passport, I am satisfied about the genuineness and authenticity of the passport and the learned DR was also specifically requested to scrutinise the seals and signatures of the officers concerned. The passport is a statutory document and a valuable security and is indeed issued after proper verification under law. When this document prima facie does not show that the appellant ever travelled abroad at all, a question would arise as to whether the statement of the appellant that he went abroad on a number of times could be accepted as a voluntary and true statement. When the learned DR was specifically questioned on this aspect, the learned DR would say that the appellant would or could have travelled on a false name under the false or forged passport. I am not able to accede to this plea of the learned DR because it is not the case of the Department that the appellant travelled under a false name or under a forged passport. When the Department took care to seize the air ticket and the boarding pass, it does not stand to reason as to why the appellant s passport was not seized. Equally, I am not able to appreciate as to why no inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... retracted statements of accomplice can- not form the sole basis for finding a person guilty without any further corrobo- ration. In this case both the original as well as the appellate authority have found the appellant guilty of abetting the import of contraband gold only on the basis of the retracted statements which have not got corroboration from other materials. Hence, we cannot agree with the conclusion arrived at by the authorities that the guilt as against the appellant has been duly established. In this view, the appeal is allowed and the imposition of personal penalty is quashed. . Therefore, on consideration of the entire evidence on record and keeping in mind the fact that the appellant totally disowned the goods and the goods cannot be said to have been in exclusive possession of the appellant nor con- scious intelligent possession attributable to the appellant, I am of the view that the appellant would be entitled to the benefit of doubt arising in the facts and circumstances of the case particularly when the proceedings are penal in nature. No doubt, certain circumstances do endanger a grave suspicion in my mind, but the proceedings being penal in nature, suspicion ..... X X X X Extracts X X X X X X X X Extracts X X X X
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