TMI Blog1997 (1) TMI 474X X X X Extracts X X X X X X X X Extracts X X X X ..... th some remnant pieces of gold. 3. Similarly, waist belt of Shri Rao was found to contain three lumps of gold of different sizes and weights. The total weight of the gold recovered from these two persons was 1091.9 grms. (approx.) and the above said gold pieces were wrapped in two packets with torn Hindi Newspapers. 4. As the appellants could not produce any valid documents in support of the legal acquisition, possession of the gold in question, the Officers entertained a reasonable belief that the same were smuggled into India in contravention of the provisions of the Customs Act, 1962 and were accordingly liable to confiscation under the said Act. On the above plea, the gold lumps in question were also seized by the Officers concerned under different Seizure Memos prepared separately in the name of the two appellants. Their statements were recorded in the Customs House, which are in the nature of incriminating ones. Thereafter, the appellants were taken into custody and put in jail. Subsequently, based upon the above facts, they were served with show-cause notices dated 27-7-92 proposing to confiscate the seized gold pieces as also to impose personal penalties upon the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Officer concerned wanted to complete the statements before the signatures of the appellant. He submitted that in the ordinary course, there was no need to constrict the last lines if the signature(s) were to be obtained after writing the complete statement(s). He further submitted that as soon as the appellant was bailed out, an affidavit was submitted by him protesting against the obtaining of the signatures on the blank paper(s). He also submitted that apart from these statements which were neither voluntary nor true, there was no other evidence against the appellant. He also submitted that though the Gold (Control) Act was repealed by that time, the appellant being a small goldsmith was still maintaining the G.S. 13 register wherein the names of all the customers on whose behalf the jewellery were received by him had been entered. It was his contention further that the gold in question represented his customers jewellery melted into gold lumps and he had brought the same to Calcutta for the purpose of getting the same finally designed by the jewellers who were very popular in his area. He also filed the affidavits of the various customers who were the actual owners of the j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sultant also drew our attention to the internal page No. 2 of the second statement of the appellant, wherein he had mentioned that the gold lumps in question were still hot. However, he submitted that this fact of the gold lumps being hot was not mentioned in the Seizure Memo. Further, at page 7 of the statement of the appellant referred to one Donger Singh from whom both the above-said appellants had received the gold in question. But the learned Counsel submitted that no investigation against the said Shri Donger Singh had been made by the Department, although the appellant in his statement had stated that he knew the location of the house of the said Shri Donger Singh. From this, the learned Counsel proposed to arrive at the conclusion that there was, in fact, no Donger Singh in existence and the same was a fictitious person brought in picture by the Department. Otherwise, the Department would have investigated against the said Shri Donger Singh. He also submitted that the statement had been recorded by his father who deposed that his son had gone to Calcutta to buy ornaments. He also submitted that this statement was brought on record by the Officer concerned. He also pleaded t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was bought at Calcutta itself and was melted out of the gold biscuits to avoid detection. 10. We have gone through the Orders passed by the authorities below and the submissions made by the learned Counsels as well as the Departmental Representative. The Commissioner (Appeals) in his impugned Order has dealt with all the submissions made by the appellants representatives. The relevant paragraph of the impugned Order is as follows :- The GS 13 accounts were not accepted as no correlation was possible between the ornaments received and the lumps of gold seized. In fact the GS 13 shows ornaments already manufactured. Similarly the affidavits have not been accepted because of a lack of correlation between the affidavit and the seized gold. However, this ought to have discussed in the order. It is stated that Shri Rao came to Calcutta for getting Bengali Design Ornaments for his customers. There is no evidence to support this statement. If he had obtained and supplied Bengali Design Ornaments to his customers earlier, he of course would have given an account of the same. He also did not disclose where he got the Bengali Design Ornaments manufactured earlier or where he proposed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial proceedings; preponderance of probabilities is sufficient. Hence there is not only preponderance of probabilities but corroborative evidence against the appellants as discussed supra. 11. We find that the reasoning adopted by the Commissioner (Appeals) is in the nature of assumption and presumption. Apart from the statements given by the appellants which were subsequently retracted, there was no other independent evidence to corroborate the same. More so, the manner in which the statements were recorded, as pointed out by the learned Counsel throw also the same into doubt. Further, it has been left unexplained as to how the co-accused, Shri Donger Singh who had allegedly given the gold in question to the appellants, was not interrogated by the Department although his name was disclosed by the appellant Shri P.K. Rao in his very first statement. The appellants as soon as they were freed on bail filed affidavits with the authorities concerned that their signatures were obtained on blank papers. All these throw a grave doubt as regards the voluntary and true character of the statements. It is a well-settled proposition of law that confessional statements need independent corrob ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
