TMI Blog2002 (10) TMI 462X X X X Extracts X X X X X X X X Extracts X X X X ..... he night of 28/29-1-93 were traced out from one container at ICD, Tughlakabad, New Delhi. The packages were unloaded from container and then examined before panches. On the opening of those packages, 18 stone sculptures of deities which were certified to be articles of antiquity, by Shri Dharamvir Sharma, an expert from Archaeological Survey of India, were recovered and seized under the Customs Act vide panchnama dated 28/29-1-93. Both the present appellants along with one Rameshwar Mittal and Smt. Vijay Kumari were believed to be involved in the attempted export of seized antiquities and as such, were summoned. The appellant Sharad Dugar in his statement recorded on 29-1-93, admitted that he was dealing in the export of antiquities for the last two years to earn more profit and he purchased the antiques from the persons who came to his residence, to sell the same. He admitted that the antiques were stolen and brought from many places like Mathura, Agra, Banaras, Mirzapur and Kashmir, etc., and in April-May, last year, he purchased two antiquities and arranged the same to be sent to Holland, through Rameshwar Mittal by paying Rs. 25,000/- to him, for that job. In respect of the sei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Therefore, his statement, Counsel has contended, could not be used against Sharad Dugar, appellant. The Counsel has further contended that the alleged confessional statement of Sharad Dugar himself also could not be taken note of as there is ample evidence on record to prove that the same was obtained under duress and coercion. The Counsel has referred to the medical examination of Sharad Dugar, appellant which was conducted when he was sent to jail, to further corroborate that confessional statement was obtained from him after beating and torturing. Moreover, confessional statement was also retracted by Sharad Dugar, appellant when produced before the Magistrate. Therefore, his alleged confessional statement was not only inadmissible in evidence but also even otherwise could not be relied upon for want of corroboration from any other source. No penalty under Section 114(i), could therefore, be imposed on him. 6. On the other hand, the learned SDR has simply reiterated the correctness of the impugned order and contended that the subsequent retraction of the confessional statement by Sharad Dugar was immaterial and had been rightly ignored. 7. We have heard both the sides and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n he was admitted to jail, as is evident from all these certificates. It is not the case of the department that these injuries were already on his person when he was taken to DRI office on 29-1-93 for investigation and for recording his statement. Therefore, it can be safely and without hesitation inferred that he received injuries at the hands of the DRI officers during the course of his interrogation and recording of his alleged confessional statement. 10. It is also evident from the record that on 29-1-93 after seizure of antiques, DRI officers visited the residential premises of Sharad Dugar, appellant at South Extension which belonged to his mother Smt. Vijay Kumari. On conducting search of that premises, nothing was recovered. No antiques or any incriminating document showing the procurement of antique by him from different sources, was found from his house. He and his mother Vijay Kumari were taken to DRI office at Lodhi Road, where panchnama was also drawn regarding the details of seized antiques in the presence of panch witnesses which was allegedly signed by the panch witnesses and the present appellant Sharad Dugar along with appellant Girish Dhawan and Rameshwar Mitta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... co-appellant Girish Dhawan has nowhere stated that in his presence any deal was struck between Sharad Dugar and Rameshwar Mittal under which former agreed to pay Rs. 1,50,000/- for the export of seized antiques. He has also not deposed that payment of Rs. 1,00,000/- out of the above said agreed amount, was to be paid to him. Therefore, for want of any corroborative evidence, the retracted confessional statement apparently obtained after torturing from Sharad Dugar, appellant, could not be used as substantial evidence against him, for penalising him under Section 114(i) of the Customs Act. 13. The testimony of Shri Bhattacharya, Investigating Officer who prepared the panchnama on 29-1-93 could not be also attached any credence as in his presence no transaction regarding handing over of the antiques of even regarding payment, for export of the same, took place between Sharad Dugar and Rameshwar Mittal. He only prepared the panchnama dated 29-1-93 and resealed the antiques thereafter by putting slips of paper bearing his signatures and of two panch witnesses, as well as all the three noticees i.e., both the present appellants and Rameshwar Mittal. But his own signatures on the paper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st of the DRI, Director General of Archaeological Survey of India appointed Experts Advisory Committee in order to evaluate the seized goods. That committee submitted its report on 23-2-93 declaring all the goods as antiques after examining the same. That report is conclusive piece of evidence to establish that attempted export items were antiques and nothing else, falling under Section 2 of the Antiquities and Art Treasures Act, 1972. 20. The perusal of the impugned order also shows that initially the description of the goods recorded by this appellant in the shipping bill was wooden chairs but later on over-writing was done and word handicraft was substituted. Non-production of the original shipping bill has got no material bearing on the merits of the case, when appellant has Girish Dhawan himself had admitted in his statement, of having filed the shipping bill describing the goods as handicraft items of stone, although knowing fully well that those were antiques. He also cannot be heard saying that he never acted on behalf of M/s. Air and Sea Masters, when he himself has conceded this fact in his statement. His statement is perfectly admissible in evidence having been rec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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