TMI Blog1996 (3) TMI 268X X X X Extracts X X X X X X X X Extracts X X X X ..... d green canvas bags, two brief cases under Section 119 of the Act. He has imposed a penalty of Rs. 10 lakhs each on S/Shri Ravi Garg, Mohinder Singh and Surender Kumar under Section 112 of the Customs Act. He has imposed a penalty of Rs. 50,000 only each on S/Shri Ram Pratap Shyam Babu Verma under Section 112 of the Act. He has allowed the release of the maruti car on a fine of Rs. 50,000 and scooter on a fine of Rs. 5,000 under Section 125 of the Act. 2. The facts of the case are that the officers of Delhi Zonal Unit of the Department of Revenue Intelligence received information that transportation of foreign marked gold would take place in Maruti Car DL 2C 5641 near Red Light crossing of Red Fort near Birds Hospital in Chandni Chowk in the evening of 26-6-1990. The officers kept discreet survaillance at the abovesaid spot. The officers noticed a white Maruti Car bearing Regn. No. DL 2C 5641 which came at the spot around 2145 hours and a Bajaj Super Scooter Regn. No. DDO 1695 which came around 2200" at the said crossing. The officers then observed the two occupants of the said Maruti car DL 2C 5641 later identified as S/Shri Ravi Garg s/o Hari Chand, and Ram Pratap s/o late Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Surinder Kumar Anand were recorded under Section 108 of the Customs Act. 3. Summons were issued to Mohinder Singh, 1186 Kucha Mahajani, Chandni Chowk, Delhi for appearance in DRI office on 9-7-1990, 23-7-1990, 14-9-1990 and 10-10-1990. However, the first three summons returned undelivered with the postal remarks that on repeated visits the shop is found closed-return to sender . The last summon was attempted to be served on him by the officers of this department but again the shop was found locked. Subsequently on 30-10-1990, summons were served on him by way of pasting the same at the door of his premises in the presence of two independent witnesses and a panchnama was drawn on the spot. A complaint for non-compliance of summons has been launched in the Court of ACMM, New Delhi. 4. Enquiries made from the Transport Authorities revealed that Maruti Car No. DL 2C 5641 was registered in the name of Shri Ashok Kumar Goyal, 1936 Kucha Chalan, Khari Baoli, Delhi-6. Shri Ashok Kumar Goyal in pursuance to summons issued to him under Section 108 of the Customs Act, 1962, inter alia, stated that he had given his Maruti Car to Ravi Garg in June. 5. Enquiries made from the Transport A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by Shri Ashok Kumar Goyal, resident of 1936, Kucha Chelan, Khari Baoli, Delhi, one of the appellant s close relations. The car was driven by Shri Ram Partap, Driver. He submitted that the DRI had also detained two other persons namely, S/Shri Shyam Babu Verma and Surinder Kumar Anand, who were crossing the road at that time allegedly carrying gold biscuits on a two wheeler. He submitted that the officers under a suspicion took the appellants to DRI office and they are forced to give statement and also made signed the punchnama. He submitted that DRI did not call for any independent punches and the punchnama was got signed from two security guards of DRI office building. He submitted that the cash was wrongly seized by the officers by filing the case of smuggling against him when he had no knowledge of other occupants of the scooters carrying the smuggled foreign gold biscuits. He submitted that the appellants immediately resiled from the forcibly recorded statement under Section 108 of the Customs Act. The driver has also resiled from the said statement. This statement was withdrawn on 29th June,1990. Therefore, he submitted that he had requested for summoning the punchnamas namel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceeds of smuggled gold and the department had not collected any evidence to implicate the appellant in this case. Therefore, he submitted that the seized currency should be returned to the appellant. It is also his submission that the owner of the Maruti car namely, Shri Ashok Kumar has not been issued with show cause notice, hence the seizure and imposition of confiscation fine on Maruti car is not sustainable. When it was also pointed out by the bench to the Learned Advocate that the Additional Collector s finding that the counsels had given up the cross-examination as recorded in the impugned order; for this the Learned Advocate did not explain but only argued that the security guards who had signed the panchnama should have been called for cross-examination including the officers to question them regarding the exchange of money and gold biscuits as alleged in the show cause notice. The Learned Advocate also submitted that there was no clear retraction from the panchnama on which the appellant had signed regarding the seizure of the cash and gold biscuits from the respective vehicles as noted in the panchnama. He also admitted that the letter of the appellant retractive from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had conducted both the vehicles to the DRI office. The search was done in the presence of independent witnesses and there is no rule which states that the panchnama should not be signed by the security guards of the DRI office as witnesses. He submitted that the panchnama had also been signed by the appellants and the same had not been resiled nor they had stated anywhere, at any time, that the impugned goods was not recovered from them. They had themselves give up cross-examination of the witnesses, as had been clearly noted by the adjudicating officer and therefore, their plea before the Tribunal that there has been violation of principles of natural justice in not summoning the concerned witnesses is an afterthought. He submitted that there was enormous corroborative evidence to link the offence of the appellants and therefore, the earlier statements recorded under Section 108 which gives great details of facts is required to [be] accepted. It is always the case of accused that they have resiled from the admissions but that by itself is not sufficient to withdraw the admissions made by them, as the details which are found in the statements given by them, have all been corroborat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the sides and have perused the record. The first ground on which the impugned order has been challenged is on the basis of denial of principles of natural justice inasmuch as the officers of the department who had conducted the investigation and the panchnama witnesses had not been produced for cross-examination. On this point, the Learned Additional Collector has noted the submissions of the advocates. The Advocates have not filed any affidavit before the Tribunal to show that they had not given up the right of cross-exa- mination. On being pointed out by the bench with regard to this factual detailed recording by the Additional Collector in the order, the Advocates merely submitted that the adjudication authority had recorded these facts on his own. We are not impressed with this plea taken by the Learned Advocates that the adjudicating officer had closed the case on his own and not at the instance of the Advocates. The recorded findings on this point in the impugned order is in great detail. The Learned Additional Collector has noted about the number of summons, had issued to the witnesses. The case had been closed at the instance of the Advocates appearing for the appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a few bills to show that he was doing trading business. This bill does not reflect the turnover, nor profit and loss account nor does it indicate anything about the state of business of appellant, Ravi Garg. Ravi Garg in his statement has given meticulous details and material facts pertaining to the smuggling activity done by him. He has also stated that his father and brother were doing jewellery business and he was purchasing gold for them. This fact is not denied by him and by his Advocate, while arguing before us. These material facts could not have been concocted by the department and got it recorded through Ravi Garg in the statement recorded under Section 108 of the Act. Ravi Garg had merely sent a letter stating that the statement had been forcefully recorded. He has admitted the recovery of cash but only states that it was recovered from the car and not from the scooter. This statement is belied by panchnama, which clearly discloses the recovery of gold from the Maruti car and cash from the scooter and this fact has been conclusively established beyond reasonable doubt. Ravi Garg had stated in his reply that he had current account in Vijaya Bank, Chandni Chowk, and he had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istrate court, on the complaints of the department, has been served on the Mohinder Singh. The alleged statement of the co-accused cannot be only taken to implicate a person on charges of gold smuggling. Therefore, it was incumbent on the investigating officer, to have searched and arrested Mohinder Singh for recording his statement and to further prosecute him in the matter. As the department has not shown by any evidence nor explained to our satisfaction as to why they had not arrested him, therefore, the proceedings against Mohinder Singh on the basis of the statements of co-accused is not sufficient to hold him guilty of gold smuggling, especially when no search and recovery has been done at his place. Even there is no evidence of previous record of gold smuggling against him. The appellants Ravi Garg, Surinder Kumar Anand and Shyam Babu Verma have implicated Mohinder Singh but these statements which are self implicating in nature, should have been confronted to Mohinder Singh. It is not sufficient to say that the summons were pasted on his shop and merely because he has not come forward to give statement to explain the allegation made against him by co-accused, therefore, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, the penalty against him is to be set aside. We notice that apart from his statement recorded, there is nothing on record to show that Ram Partap has played a key role in gold smuggling or in the business of Ravi Garg. He was merely a driver of Ashok Kumar Goyal. Therefore, it has to be held that the department has not proved the offence against Ram Partap and penalty of Rs. 50,000 against him is set aside. 18. As regards the imposition of confiscation of fine of Rs. 50,000 on Maruti Car and fine of Rs. 5,000 on scooter under Section 125 of the Act, the Learned Advocate submitted on behalf of owner of the car i.e. Ashok Kumar Goyal, that the car cannot be confiscated unless the owner of the car has not been issued with the show cause notice in terms of [Section] 124 of the Customs Act read with Section 2(22) of the Customs Act. The department had collected evidence about the ownership of this car and it had been known to the department that the car belonged to Ashok Kumar Goyal. In the circumstance like this, the department was required to have issued with a show cause notice to Ashok Kumar Anand to call upon him to explain as to why Maruti car should not be confiscated. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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