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JOAQUIM ALEMAO Versus COMMISSIONER OF CUSTOMS, GOA

2005 (12) TMI 298 - CESTAT, MUMBAI

Evidence - Adjudication - Smuggling - Confiscation of conveyance - C/28-32/95-Bom - A/1747-1751/2004-WZB/C-I - Dated:- 13-12-2004 - Ms. Jyoti Balasundaram, Shri Moheb Ali M., JJ. REPRESENTED BY : S/Shri J.F. Pochkhanawalla, Sr. Advocate with Manoj Sanklecha and R.A. Shah, Advocates, for the Appellant. S/Shri M.I. Sethna, Sr. Advocate with J.B. Mishra, Advocate, for the Respondent. [Order per : Moheb Ali M., Member (T)]. - Costao Fernandes, a junior officer in Marmagoa Custom House gathered secre .....

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oa. Democracy at its very best. Ciabro Alemao, Joaquim Alemao, late Alvarnez Alemao, all brothers of Churchill had equally humble beginnings but rose to become the rich and famous of Goa. Capitalism and its virtues. 4. Anthony Jon Rodrigues is an employee of late Alvarnez. He works as a tax collector. He did not rise to become anything. He was only 29 years old. Still young. 5. Subhash Pandey, a non-descriptive person works for a construction company engaged in constructing a beach res .....

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Hence these appeals by them. 7. We may now narrate the events that lead to adjudication proceedings. Briefly though. 8. On the night of 15th May, 1991, the one man army was keeping a nightly vigil on Fartade Beach from a secret place. He was pointedly asked during his cross-examination as to where the secret place was. He refused to divulge it. Some places have to remain secret. They would be useful for other officers to keep similar vigils if they are so inclined. Costao observed Joaq .....

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in broad daylight so he went home. He was wrong. 9. Around 10:30 AM, he received a call that a great deal of activity was going on at Carmona beach. The lone ranger hurled himself in the direction of the beach on his motor cycle. He noticed Ciabro standing near Luis Bar close to the beach. At that time, a white Contessa car (hereafter referred to as the car ) bearing number GA-02-A-4567 and a Maruti car bearing number plate DAC 5492 were parked near the beach. Costao saw four heavy battery .....

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eat and requested the driver, Alvarnez to stop the vehicle (such politeness). The latter did not oblige, there was a scuffle, a knife was pulled by Alvarnez and in the ensuing struggle, Alvarnez was grievously hurt. The officer took out the ignition key, opened the dickey, managed to open one of the battery-type boxes, pulled out a gold biscuit, showed it to the crowd which had gathered by then and requested for help and for some water. Neither of which was given. So he threw the gold biscuit ba .....

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itnesses to the struggle in the front seat of the car and to the fact that Costao was attempting to open the dickey. After he left the scene, he was not privy to the events that took place later. There were 3 witnesses who saw the events that took place after Costao s departure from the scene. The following narration is based on the evidence tendered by the three, Vincy Soares, Baptista Fernandes, and Sebastian Fernandes. Their statements were recorded under Section 108 of the Customs Act. 12.&e .....

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es on the scooters, one of which was later traced and seized. The said witnesses say that Ciabro and Churchill were also present when the boxes were being removed from the dickey. The brothers also attended on the wasted person and took him away from the car. The three also say that Costao identified himself as a Customs officer after he got down from the front seat in blood-stained clothes and was trying to fiddle with the dickey before he left the scene. Thus there appears to be some discrepan .....

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moving any boxes from the dickey of the car. 13. During the course of investigation, the Customs officers recorded statements of several persons. There are witnesses to the fact that two battery-type boxes were carried on the scooters. The owner of Luis Bar testified that Ciabro Alemao came near Carmona beach around 10:30 am on 16-5-1991 and went towards the beach before he left the place. These versions coupled with the statement of Costao under Section 108 were the main planks on which th .....

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se; that there was no gold in the car and that Costao did not intercept the car under the powers vested with him under Section 106 of the Customs Act. Section 155 of the Customs Act affords protection to a Customs officer against civil and criminal liabilities if such an officer is involved in discharging his functions entrusted to him under the Customs Act. The officer was claiming this protection before the trial court. The court rejected Costao s plea and held that there was no evidence to sa .....

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- smuggler being in a car. The result was smuggling of gold worth ₹ 8.00 crores was prevented. The reward? He has been made to face a prosecution under Section 302 of the IPC at the behest of the CBI who is brought hurriedly and for undisclosed reasons to investigate... The apex court examined the provisions of Section 106 which empower an officer of customs to stop and search conveyances and held that Costao was attempting lo stop a vehicle in which contraband gold worth ₹ 8.00 cro .....

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ar intercepted by Costao. Such a conclusion was arrived at on the basis of the record maintained in the Custom House, the statement of Costao Fernandes and the statements of persons who saw the boxes removed from the dickey of the car. The apex court was aware that except Costao, nobody else saw the gold nor any gold was seized subsequently. Despite that, the court was satisfied that there was gold in the battery-type boxes kept in the dickey. This Tribunal has the benefit of the decision of the .....

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d goods under Section 115(2) of the Customs Act. Hence, these appeals. 17. The learned counsel for the appellants assailed the impugned order on several counts. They are briefly summarised below. 18. Principles of natural justice are violated inasmuch as the key witnesses (Vincy, Baptista, and Sebastian) were not produced for cross-examination; the Commissioner solely relied on the testimony of Costao; the Commissioner erred in not permitting the appellants to lead evidence unearthed b .....

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department did not succeed in appeal against this decision even in the highest court; that in a case where the court held that there was no prima facie case the adjudicating authority cannot conclude that an offence has been committed under the Customs Act and that the department s version of events was solely based on the testimony of one witness without corroboration. pleaded that the penalties and confiscation should be set aside. 19. The learned counsel Shri Sethna appearing for the de .....

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e Commissioner observed that these 3 witnesses were not in India and that it was impracticable to ensure their presence; that the conduct of the appellants coupled with the statement of Costao strongly suggests that there was something really valuable in the dickey of the car; that according to intelligence gathered, the conversation between Costao and Alvarnez that took place in the front seat of the car as reported by Costao and the unequivocal statement of Costao that he had seen the gold in .....

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Commissioner was right in imposing a penalty on him; that Rodrigues was one of the persons who carried away one battery-type box and therefore was liable to penalty under Section 112(b) of the Customs Act. 20. He pleaded that the Commissioner has imposed penalty under Section 112(a) and (b) as the appellants not only abetted in the act of smuggling of gold but also dealt with it after it was smuggled; that there is no reason as to why the evidence tendered by Costao should not be relied upo .....

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officers and in the affidavit filed before the Tribunal; that no gold need to be seized or confiscated for the purpose of imposing a penalty; that the appellants (except Subhash Pandey) implicated themselves by removing the boxes from the dicky even as they came to attend on injured Alvarnez; that such boxes were removed after forcing open the dicky of the car is an indicator that something very valuable was kept in those boxes; that the fact that the appellants were discharged by the trial cour .....

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erge except that no one has seen the contents of the battery-type box carried away by him in his Maruti car; that the conclusion reached in respect of four boxes should be applicable to the one carried away by Subhash Pandey; that the appellants have been rightly penalised for their role in smuggling of gold and its subsequent handling. 21. In the rejoinder, the learned advocate for the appellants argued that the department cannot draw any support from the observations of the Supreme Court .....

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ical situations factual and legal without a close examination of the rationale of the decision which is cited as precedent. The Supreme Court also held that it is neither desirable nor permissible to pick out a word or a sentence from a judgment divorced from the context of the question under consideration. The learned advocate argued that before the Supreme Court the issue was whether Costao was intercepting a car laden with gold and if so, whether his action in killing occupant entitles him fo .....

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w filed by the appellants towards the end of the proceedings. He contended that the Supreme Court in the criminal appeal before it was dealing with the same matter pertaining to the smuggling of gold. The apex court came to the conclusion that Costao was attempting to prevent smuggling of gold worth ₹ 8.00 crores. The court was aware that no gold was seized and the only person who had seen the gold was Costao himself but still came to the conclusion that gold was being smuggled. The depart .....

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at the evidence in this case is only circumstantial. The appellants contention that the evidence tendered by Vincy, Sebastian, and Baptista should not have been relied upon as these witnesses were not produced for cross examination is carefully considered by us. The Commissioner made every attempt to summon these persons repeatedly. He was informed that these persons were living abroad. The Commissioner observed that Section 138B of the Customs Act permits the prosecution to rely on the statemen .....

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r the first time only in Verca village. There is evidence in the form of the panchnama drawn by the police after the incident to the effect that the dickey of the car was broken open. The Churchill brothers admit that they had visited the scene of the accident on May 16th, 1991 around 1 PM. It is also a fact that the boxes in the dickey were not found by the police later. In the light of these events, it is safe to conclude that the battery-type boxes were in the dicky, that they were removed fr .....

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ey in such a hurry when a grievously injured person was lying in the front seat of the car. It still remains to be seen whether the boxes contained gold. The Commissioner relied on the version given by Costao that he had opened one of the battery-type boxes, took out a gold biscuit and showed it to the crowd. He also relied on the statement of Costao where he narrated the conversation between him and Alvarnez. The latter seemed to have said that he was carrying gold and that he was prepared to s .....

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Costao replied that he knew it was gold out of his experience. When we agree that something valuable was removed from the dickey of the car there is no reason for us to disbelieve that what Costao handled was gold. 26. We have considered the contention that since the trial court acquitted the appellants for lack of evidence; the departmental proceedings should also result in such acquittal. We are unable to agree. Appreciation of evidence in departmental proceeding stands on a different foo .....

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at every statement of a witness has to be corroborated to establish a fact. Costao all along maintained that he saw the gold in the battery-type box. When he was cross examined before us by the appellants he maintained the same version. He was allowed to file an affidavit as to the facts by the Hon ble High Court of Bombay. We have no reason to disbelieve the version given by Costao. We observe that the affidavit itself is based on the contemporaneous record maintained in the Marmagoa Custom Hou .....

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er Section 108 of the Customs Act and his testimony can be relied upon even without any corroboration. 28. There is enough circumstantial evidence to indicate that Churchill, Ciabro, Joaquim, and Rodrigues indulged in acts of commission and omission rendering themselves liable to penal action under Section 112(a) and (b) of the Customs Act. The Commissioner while imposing a penalty has taken note of the fact that only one battery type box was opened by Costao and gold was found in it. He co .....

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