TMI Blog1991 (2) TMI 295X X X X Extracts X X X X X X X X Extracts X X X X ..... $ 8600 was confiscated under Section 121 of the Customs Act, 1962. Rs. 1.20 lakhs seized from the appellant Jagdish Prasad Soni was confiscated under Section 121 of the Act. A personal penalty of Rs. 2,500/- was imposed on the appellant Jagdish Prasad Soni. A personal penalty of Rs. 5,000/- was imposed on the appellant Hansraj Baid. 2. The brief facts of the case are that on reliable information, in the afternoon of 8-5-1985, the Directorate of Revenue Intelligence, Zonal Unit, Calcutta, made a search with a search authorisation under Section 105 of the Act in the premises No. 8, Hanspukuria 1st lane, Calcutta, belonging to appellant Jagdish Prasad Soni and Onkarmal Soni. The case of the department is that a sum of Rs. 1.20 lakhs, being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e contended that premises No. 7 from where US $ 8,600 was seized was in the possession of Onkarmal Soni. He contended that there is nothing to show that the appellant was in any concerned with the US Dollars. It was also contended that there is no evidence to show that Rs. 1.20 lakhs was the proceeds of sale of smuggled gold. He also contended that the statement given by Jagdish Prasad Soni is not a voluntary statement and it was retracted on 9-5-1985 when he was produced before the learned Metropolitan Magistrate. Therefore, it was contended that the statement is inadmissible. It was also contended that the telephone No. 322621 did not belong to the appellant and there is no proof to show that the appellant had any telephonic conversation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the statement of Jagdish Prasad Soni and that of Madanlal Sharma go to show that the appellants were dealing with smuggled gold and, therefore, the impugned orders are in accordance with law. 6. We have heard both sides in detail. The points that arise for our determination are : (1) Whether the confiscation of Indian currency of Rs. 1.20 lakhs under Section 121 of the Customs Act, 1962 is in accordance with law; (2) Whether the confiscation of US $ 8,600 is in accordance with law; (3) Whether the imposition of penalty against the appellants are in accordance with law ? 7. Since both these appeals arise out of the same common order, we propose to dispose of these two appeals by a consolidated order. 8. As far as the first point ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Collector has stated that `it would be reasonable to presume that this amount is the sale proceeds of smuggled gold' is not in consonance with law. Merely because the appellant was found in possession of this amount, there cannot be any presumption that it is the sale proceeds of smuggled gold. The observation of the Collector that since it was not proved that the appellant obtained this money legitimately, it goes to show that it is sale proceeds of smuggled gold, is not a correct view point. It is not for the appellant to prove that he obtained the amount legitimately, but it is for the department to prove that the amount so found with the appellant is sale proceeds of smuggled gold. Suspicion cannot take the place of proof and on that gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n that the statement was retracted by him, when he was produced before the learned Magistrate for the first time. It is now a well established principle before a statement can be acted upon as voluntary, it should be proved that the statement is a voluntary statement and that the same is true. In view of this retraction made by the appellants at the earliest point of time and that too when he was in custody, it is highly difficult to consider the same as a voluntary statement. Merely because some details were there in the statement with respect to the transactions, the same cannot be said to be voluntary. There was no loss of time by the appellant and he retracted the statement at the first opportunity. That being so, unless there are indep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that on presumption the appellants could not be found guilty. The learned Collector has stated that certain phone calls were made by Jagdish Prasad Soni over a telephone with respect to the gold transaction, but in the order itself he has clearly stated that there is no record to show as to who had spoken on the telephone to Jiwanmull Soni with respect to the gold transaction. He stated that since several phone calls were made it is reasonable to presume that appellant Jagdish Prasad Soni spoke over the telephone. This is only a presumption. Merely because several calls were made it cannot be said that the appellant Jagdish Prasad Soni had spoken over the phone. Thus, a conclusion reached without any evidence in this regard cannot be accept ..... X X X X Extracts X X X X X X X X Extracts X X X X
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