9911796707
TMI Blog1995 (7) TMI 230X X X X Extracts X X X X X X X X Extracts X X X X ..... to him by one Iqbal and the same represented the sale proceeds of gold biscuits of foreign origin and was given for distribution as compensatory payment on instructions from Indians abroad. The proceedings instituted after further investigation resulted in the impugned order. 3. Shri Srinivasan, the learned Consultant for the appellant, submitted that the inculpatory statement of the appellant is not voluntary and true and was retracted when he filed an application for bail. It was further urged that it was further retracted by a communication to the Assistant Collector on 4-8-1988. The statement was under compulsion and threat and not voluntary. It was urged that Section 121 of the Act is not applicable and the onus that the money represented the sale proceeds of contraband gold is on the Department and the same has not been discharged. Iqbal, who entrusted the currency, has been given the benefit of doubt and exonerated and so no offence is made out against the appellant. The appellant explained the source of money as obtained under a sale agreement dated 23-7-1988 which should be accepted by the Department. The learned Consultant relied upon the ratio of the ruling of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow cause notice. To a specific query as to whether the sale agreement culminated in a sale, the learned Consultant submitted that he does not know anything about it. Therefore, the concealment of the paper slip, the admission on the part of the appellant, which is held to be voluntary, the non-availing by the appellant of opportunity to cross-examine the officer, who recorded the statement, to probabilise the alleged plea of coercion and threat, the conspicuous omission about the source of acquisition in the earlier retraction and belated mention of the same without any satisfactory explanation after 7 months and other circumstances would clearly bring home the charge against the appellant. The rulings relied upon are not applicable and in the East Regional Bench case the clear findings was that there was no evidence that the currency represented the sale proceeds of contraband gold and in the case of this Bench the finding was that there was not "an iota of evidence against the appellant to hold that the currency is sale proceeds of contraband goods". The fact of this case stand on a different footing. Therefore, on consideration of the evidence we affirm the findings of the adjud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on viz. Iqbal have been dropped by giving him the benefit of doubt. The learned Consultant has relied upon the rulings of the East Regional Bench in the case reported in 1991 (52) E.L.T. 565 and South Regional Bench in the case reported in 1988 (33) E.L.T. 444. 9. I observe that the appellant's statement in which it has been merely stated that the currency was the sale proceeds of smuggled gold by itself cannot form the sole basis for confiscation of the currency. The officers have not elicited any information from the appellant as to the facts when and where and between whom and for what consideration the transaction of smuggled gold took place. The only piece of evidence is the statement of the appellant which has not been corroborated, as the said Iqbal who is stated to have given the currency to the appellant has disowned the same. Section 123 of the Customs Act does not apply to the currency under seizure and, therefore, the burden in cases not covered by Section 123 has to be discharged by the authorities and it has to be shown by the authorities with evidence that the currency by virtue of the nature of transaction is liable to confiscation under Section 121. Since the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsp; Member (J) Member (T) 10. [Order per : S.L. Peeran, Member (J)]. - The point of difference between both the Members is already noted above at Page 6 of the Order of both the Members. I have heard the learned Consultant Shri M.R. Srinivasan for the appellant and Shri Victor Thyagaraja, the learned SDR for Revenue. 11. The learned Consultant submitted that the cash of Rs. 1,00,000/- seized from the appellants is his own money, which he had received in terms of sale agreement executed by the appellant along with one Khadeeja on 23-7-1988. The said money was being carried by him, when the Customs officers escorted him and took a statement forcefully, which was not voluntarily given by him. The appellant had immediately retracted from the said statement on the very next day, when he was produced before the Additional Chief Metropolitan Magistrate. He has also immediately sent a letter to the Assistant Collector on 5-8-1988 retracting the said statement recorded by the Department. He has also pointed out that the statement had implicated one Iqbal who is said to have dealt with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rely said to have stated in Malayalam, the free translation reads :- "I know this amount is obtained by smuggling gold biscuits from foreign countries and selling and the amount is to be given in houses of Indians residing abroad according to their instructions. I know there is a partner to Iqubal named one Mohammed". Pointing out to this statement, which is a free translation from Malayalam, the learned Consultant pointed out that the whole case is based on this statement and this statement has not been corroborted and as the explanation given by Iqbal has been accepted and the charges against him has been dropped; after verifying his statement; therefore, the retracted statement without corroboration is not required to be accepted. He submitted that there was no delay in the retraction and the finding given by the learned Member (J) is not on full appreciation of the facts and particular aspect of acquittal of Iqbal by the learned Collector has not been considered. He further submitted that the Department has not filed any appeal or cross appeal against the acquittal of Iqbal. In view of this matter, there is nothing against Basheer and the appellant cannot be accused on a self ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the said Iqbal. Iqbal in his reply to the show cause notice has stated that his aged mother had told him that the Customs Officers had searched his residence on 30th July, 1988 in her presence and in the absence of other male members of his house. He had gathered from the Malayalam dailies about the search done by the Department in connection with the seizure of Indian currency from some one at Trichur Railway Station. He has stated in the reply that though the report which appeared in the newspapers had created humiliation and untold miseries to his reputation, he did not take it seriously on account of the fact that the search was done by the authorised officers. He has submitted that the newspaper report had affected his business and his matrimonial prospects and that the Department is answerable to them. He has also denied any connection with K.P. Basheer, the appellant herein. He has disowned the currency said to have been seized from the appellant. He has also denied all the charges made in the show cause notice. This statement of Iqbal has found favoured with the Collector, as may be gathered from the findings, and the learned Collector has dropped all the charges agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctor has recorded in the order about the letter sent by the appellant to the Assistant Collector on the very next day retracting his statement. He has verified the postal acknowledgement and has also noted in the impugned order. Therefore, the retraction has been done immediately without delay and not after 7 months as has been held by Member (J). The appellant has placed proper and acceptable evidence about the currency being the proceeds of the sale of immovable property. This evidence has not been challenged or dis-believed by the learned Collector. In fact there is no finding given by the learned Collector at all on this aspect. There is no reason to dis-believe the appellant to be a small scale industrialist. He had purchased machinery and had set up a unit for manufacturing tread rubber. The appellant had produced the registration certificate from the Director of Industries for setting up the unit including the invoices for purchase of machineries. Therefore it follows that the appellant had indeed received sale consideration from the sale of the immovable property and he is a Small Scale Industrialist and this money seized from him is not the sale proceeds of any contraband ..... X X X X Extracts X X X X X X X X Extracts X X X X
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