TMI Blog2003 (7) TMI 330X X X X Extracts X X X X X X X X Extracts X X X X ..... the course of subsequent investigation indicated that the smuggling had been planned by Mohd. Dossa and Mohd. Kalia. They sought for and obtained the use of the truck belonging to R. Prabhu Zantye, who lived in Azgaon. The assistance of Sunil Natekar, resident of Shiroda, a nearby village and Pramod Arolkar, a resident of Aravali, another nearby village in the landing was also obtained. The officer also found that the appellant was in the matter. The appellant was served to him. Inspector of Central Excise and was posted at the relevant time as inspector of Customs at Shapoli. 3. The allegation against the appellant in the notice runs as follows. (1) Mohd. Dossa in connivance with Kalwadekar and Mohd. Kalia planned the landing of smuggled silver ingots in India and transported the 259 silver ingots to Vengurla on 5/6-10-92. (2) Shri Dhananjay N. Khalwadkar planned the smuggling of 259 silver ingots with the assistance of Mohd. Kalia, Shri Pramod Y. Arolkar, Shri Ramchandra Shrikrishna Prabhu Zantye and Sunil S. Natekar at the sea shore of Tak, Vengurla on 5/6-10-92. 4. The Collector in his order relies upon the statement of Zantye, Pramod Arolkar and Natekar, Pan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 2,000/-. Subsequently, the three of them went to meet the appellant at Pune where he had been transferred. They met him on the evening of 3rd February. He said he would not give any more money. His statement recorded on 18th February does not refer to the appellant at all. By his order dated 18th February addressed to the Magistrate, Zantye retracted from the admission made in the statement alleging that he signed these statements without being aware of the contents. Zantye in application to the Magistrate filed on 18-2-1993 retracted the contention of his earlier statement on the ground that he was made to sign them without being aware of their context. However in his further statement recorded on 1st March, 1993, he has accepted the correctness of the earlier statement. This statement was not retracted. 6. The department representative emphasises the evidence the Commissioner has relied upon. He points to the fact that Arolkar and Batekar in their later statements had accepted the correctness of their earlier statements and therefore their retraction filed earlier has no value. Pramod Arolkar himself had told Zantye and Natekar that Mohd. Kalya had given him to understand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; picked up Natekar and Zantye and took the truck to the beach at Tak; described how the silver was landed on the beach, loaded on to the truck and the truck set off for Kudal. Arolkar, Kalya and Natekar proceeded ahead and, not finding the truck, went back to Vengurla. After a few days; Zantye and Natekar asked him for money that they were promised for the job. Since he had no money, he took them to the appellant at Kolhapur and borrowed from him Rs. 2,000/- to give to Zantye. On being asked, he said that he knew the appellant for the last five years or so. He had met him at Sawantwadi where the appellant was posted. He one day helped him repair his car and thereafter whenever he used to come in my area for patrolling he used to meet me . In reply to another question, he said Khalwadekar knows about my involvements in the landing of smuggled goods . In reply to a third question as to why, when he had two brothers at Kolhapur he went to Khalwadekar for money, he says that I went to Shri Khalwadekar as I was very sure, that I would get money from him side he knew me for last 4-5 years. His further statement of 1st March, 1993 repeats having taken money from the appellant. 9. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enting the ground of leave . He says that his absence from 4th October onwards and earlier was on account of the fact that he remained in touch with persons involved in smuggling operation. He says that the appellant has gone absented himself from duty after Natekar was taken to custody on 16-2-1993. He relies upon the statement of the three persons who met on 27th September, 1992. He notes that the appellant was detained under COFEFAVA and his petition before the advisory board which confirmed the detention and writ petition filed in the Bombay High Court were turned down. 11. The Collector s conclusion that Pandarinath Arolkar, Warkhandkar have implicated the applicant in their statements is clearly erroneous. Pandarinath Arolkar referring to the meeting took place at the Sai Prasad Hotel on 27-9-92 does not say that the applicant was present. His statement suggests that a third person might have been present, who, he says, might have been waiting outside the restaurant. He does not identify the third person. Nor does Warkhandkar the person who drove the truck on which the silver was loaded does not say or suggests the appellant was present or in anyway implicate the appellant. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpted, being aborted for variety of reasons. The mere participation of the appellant in the planning of the smuggling if established, would not by itself be sufficient to render him liable to penalty under Section 112 of the Act. We have already found that it is not established beyond reasonable probability that the appellant was involved in the planning of the smuggling. The only planning that is referred to took place at the Sai Prasad Hotel where the presence of which is subject to contrary testimony. The Collector in his order said that the appellant misused the influence as a Customs officer in order to facilitate the smuggling and transport of the silver. He says that the task of providing customs protection to the landing of the silver from the customs angle to the owner of the silver was assured by the appellant. We find absolutely no material in support of the conclusion. We have already noted that there is no evidence to place the appellant at the Tak beach at Vengurla when the silver was landed. No one says he was present there. Nor is there evidence to show that at any time spoke to or influenced at the officers who were posted on or around Vengurla and were theref ..... X X X X Extracts X X X X X X X X Extracts X X X X
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