9911796707
TMI Blog2000 (5) TMI 446X X X X Extracts X X X X X X X X Extracts X X X X ..... n of Mr. Eugene Muemesa Mulemsa Makai, a Zambian national, and Rs. 1,70,000/- was seized from the possession of Mr. Suresh S. Hemmady, an Indian national. Statements under Section 108 of Customs Act of appellant above two persons were recorded. Ramesh Jain could not be traced inspite of best efforts. Investigations were conducted in detail regarding Mr. Eugene MM Makai with Department of Philosophy, Varanasi and Narcotics Control Bureau. The above two amounts are the sale proceeds of foreign marked gold, and hence liable for confiscation under Sections 111 and 121 of Customs Act. Seized foreign currency was deposited on 29-7-1991 in Reserve Bank of India. Foreign currency of various countries was realised to the tune of Rs. 12,67,467.10 and travellers cheques seized were also deposited in Reserve Bank of India and same were realised to the tune of Rs. 12,851/-. Appellant Eugene M.M. Makai, Suresh Hemmady, Ramesh Jain and Mohammad Ali have done or committed to do certain acts, in relation to seized foreign and Indian currency, rendering liable to confiscation, as above, and also acquired or were concerned in acquiring, purchasing or dealing with the foreign currency under seizure in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to him. Both Sections 111 and 121 of Customs Act cannot be invoked as held in order-in-original. Only one amongst the two can apply. Only Section 121 remains as foreign currency was converted into rupees before the show-cause notice. No gold is seized in this case. Except the retracted statement of appellant no other material is relied in the order in appeal to make out a case under Section 121 of Customs Act. The appellant's statement is recorded after panchanama, which ended at 7.30 p.m. Cross-examination of panchas and investigating officers is relevant in that regard. Appellant was in the custody even on 24th as per the cross-examination of investigating officer. The statement of appellant is not true and voluntary and cannot be relied on. Retraction has to be upheld. In support of these contentions 1991 (55) E.L.T. 580 and 1999 (108) E.L.T. 260 are relied. The learned JDR Shri V.K. Choubey has argued that appellant was carrying activity from Shop No. l. Huge currency of foreign was found. Appellant has not explained it. Statements of appellant are clear that he was dealing in foreign marked gold biscuits and controlling the transaction of Shop No. 1. Ownership is immaterial. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of appellant. The department's case under challenge now is only with respect to confiscation of seized foreign currency equivalent to Indian Rs. 14,31,948.50 Rs. 50,000/- imposed on appellant, on the ground that he was in possession and control of Shop 1, Shreenath Building, 37/143, Bora Bazar Street, Fort, Mumbai. As per the show-cause notice and order-in-original the basis of search of the above buildings is the "specific information received on 24-5-91 that M/s. Bhagawathi Jewellers, Fort, Bombay deals in smuggled gold and details of storage of contraband gold as well as their sale proceeds was also given by the informant". The panchanama drawn on 24-7-1991 with respect to Room No. 1 at entrance, Shreenath Building, 37/43, Bora Bazar Street, Fort, Mumbai shows that "The appraising officers and other officers, in the presence of two panchas knocked the door of Room No. 1 Shreenath Building, 37/43, Bora Bazar Street, Fort, Mumbai and it was opened by appellant, he was occupying the said room, and then all of them entered into, after showing search warrant and offering them for search the said room and searched, which was consisting of bath room and kitchen measuring 12' x 7', and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant was not interrogated before him". (b) Another pancha Dilip Bhaba, first year Law student, who has supported the panchanama. "He was taken to one small room behind the shop of grain merchant, it was open, and nobody was there. Appellant was called there. From where and who called him is not known. 6 to 7 Customs officers were inside the room. Appellant was shown the seized currency. He does not recollect whether he was interrogated before him or not. Then appellant's shop was searched. Some Indian Currency was found from two persons. Some papers were signed there in the shop. He signed 3-4 papers. Both panchas were taken to construction house and till 9.00 p.m. they were present. Appellant and two other persons who had Indian currency were also brought to construction house. He does not recollect whether appellant was interrogated before him; (c) Appraiser/DRI. J.S. Shamshamaval has deposed that "he is the seizing officer, and he has recovered foreign currency, traveller's cheque, Indian currency as sale proceeds of foreign marked smuggled gold. He got the panchas from near by place of search. Premises was closed, when the door was knocked it was opened. Other Customs officers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... falsely involving the appellant in the case. Enclosure to panchanama gives details of foreign currency and traveller's cheques found and seized. Admittedly appellant was in possession of Room No. 3. Room No. 1 is behind it with kitchen and bath. Panchas have stated that it is behind the appellant's shop. All these things support the department's case that appellant was in control and possession of both rooms 1 and 3. This circumstance and evidence supports the departmental case. 8. Now coming to the statement of appellant and retraction, the statement of appellant dated 24-7-91 disclosed that he has studied up to matriculation in Rajasthan, and he can read, write and understand English. But he has no practice of writing English fluently. He is aged 50 years. He and another sleeping partner Shri Berulal Kalulal Pamecha are the partners of M/s. Bhagawathi Jewellers and money lending in Shop No. 3, 37/43, Bora Bazar Street, Fort, Bombay-1, doing business of silver Jewellery and money lending for the last 10 years. Due to some dispute sleeping partner does not take any interest. Due to low income he has started dealing in foreign marked gold biscuit and during business he came i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apped on his face and made him nervous. He was kept without food and water. It was very late at night. He went to endorse and sign the said writing as per their dictation. It was not voluntary. He disowns and retracts the same. 9. From the cross-examination of panchas, seizing officer and statement of appellant, and retraction letter, one thing is clear that the statement of appellant was recorded only after 8.00 p.m. and he was detained in the office and then arrested and produced before Court next day. Appellant's retraction is immediate. The statement was recorded in the absence of any independent persons. Panchas have clearly stated about this. Even if the appellant's statement is accepted it does not make about clear case under Section 121 of Customs Act. Panchanama and panchas evidence in cross-examination only speaks of presence of foreign currency notes. Nobody has stated about Traveller's cheques. Shri Mohammed Ali and Shri Ramesh Jain are not traced and their statements are not recorded. In the absence of it, there is no support to the department's case against the appellant in corroboration to his retracted statement, which cannot be solely based to prove charge un ..... X X X X Extracts X X X X X X X X Extracts X X X X
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