TMI Blog1997 (12) TMI 354X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion of the same after a period of 1 year, is nothing but afterthought. In the circumstances, I find myself in total agreement with the findings of the Additional Collector and find no reason to interfere in the Order-in-Original which is legal and proper. The appeal is rejected and the Order-in-Original is upheld as legal and proper. 2. The facts of the case in brief are that on the basis of specific information, the officers of DRI, Lucknow intercepted two persons at Charbagh bus station on 19-3-1993. They disclosed their name as Sageer Ahmad and Nazeer Ahmad both S/o Shri Peer Gulam. On enquiry they admitted concealment of foreign marked gold biscuits in their chappals. They were taken to DRI office in Lucknow. A search of their chappals was undertaken before the two independent witnesses. The search resulted in recovery of 4 pieces of foreign marked gold biscuits weighing 233.260 gms. from the chappals of Shri Sageer Ahmad and 6 pieces of foreign marked gold biscuits weighing 350.020 gms. from the chappals of Shri Nazeer Ahmad, therefore, the total 583.280 gms. of gold biscuits alleged to be of foreign marked valued at Rs. 2,42,061/- were recovered. On enquiry, Shri Sage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts requested for cross-examination of the panch witnesses and the seizing officers which was not allowed. After careful consideration of the submissions made, the Additional Collector confiscated the gold and imposed a penalty of Rs. 10,000/- each on Shri Sageer Ahmad and Shri Nazeer Ahmad. In appeal, the Commissioner (Appeals) held as indicated in the preceding paragraph. 4. Shri S.K. Effendi, learned Advocate appearing for the appellants submits that the panchnama was not drawn at Charbagh bus station where the gold was seized, therefore, the seizure was illegal; that there was no reasonable belief to seize the gold and therefore, the seizure was illegal; that where the seizure was effected, the appellants were subjected to physical beating and torture; that the appellants were exhausted and were forced to sign on many blank papers under the threat; that the statement was not written in the handwriting of the appellants; that the panchnama does not at all say that the seized gold had any foreign marking, it only says Videshi Sona ; that Shri Sageer Ahmad had clearly told the seizing officers that he was the bona fide purchaser of the seized gold which was of Indian origin for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -existence of foreign marking on the gold led no presumption that the gold was smuggled. He submits that in their case there was no foreign marking on the gold biscuits seized. 7. The learned Counsel also cites and relies upon the decision of the Hon ble Kerala High Court in the case of Ramananda Prabhu v. Collector of Customs reported in AIR 1965 Kerala 286 (Vol. 52 C 103). He submits that the Hon ble Kerala High Court had held that Section 124 of the Customs Act requires that the petitioner should be given an opportunity of being heard before the Collector, who has made the adjudication; that the representation before the adjudicating authority is a must; that where a domestic Tribunal fails to act in accordance with natural justice, the person affected by its decision can always seek redress in the Courts. He submits that the opportunity of cross-examination was not given to the appellants and, therefore, there was denial of natural justice. 8. Summing up his arguments, learned Advocate submits that in view of the above submissions, the impugned order may be set aside and the appeals may be allowed. 9. Shri A.M. Tilak, learned JDR appearing for the department submits that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rove that the recovered gold was legally procured. Thus, we are of the view that there was sufficient reasonable belief to hold that the gold biscuits were liable to confiscation. 14. (b) Insofar as the production of receipt is concerned, we note that the receipt was produced after 1 years, therefore, the receipt became doubtful document inasmuch as it was not produced immediately after the seizure or within reasonable time. We do not see as to why the receipt had not been produced immediately after the seizure of the gold biscuits, therefore, the receipt cannot be accepted as proof of legal purchase of gold biscuits. We also note that the affidavit appears to be an afterthought to claim that the gold was purchased. 15. (c) On the question of voluntary nature of the statements and on their retraction, we note that there was no evidence brought on record to prove that there were marks of injury, etc. We also note that the retraction was not within a reasonable time but was a delayed retraction and delayed retraction cannot be accepted at its face value. In these circumstances, we hold that the confessional statements were true and voluntary. 16. (d) On the question of giving ..... X X X X Extracts X X X X X X X X Extracts X X X X
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