TMI Blog2005 (12) TMI 298X X X X Extracts X X X X X X X X Extracts X X X X ..... quim 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 resort called Verca Beach Resort close to Carmona Beach. He drives a Maruti car belonging to one of Churchill s brothers. He did the vanishing trick after the incident and surfaced to reply to the show cause notice issued to him amongst others. These then are the dramatists personae. 6. Churchill, Ciabro, Joaquim, Rodrigues, and Subhash Pandey are some of the persons penalised under Section 112(a) and (b) of the Customs Act ranging from ₹ 50 lakhs to ₹ 5 lakhs by the Commissioner. 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 pointedl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one Mrs. Antonite s house (these Customs officers live rather dangerously). Meanwhile, Alvarnez was wasted. 11. It is worthwhile to remember that the above narration of events is solely based on the statement of Costao Fernandez recorded under Section 108 of the Customs Act and the affidavit filed by him before us. There are however witnesses 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. Within 10-15 minutes of the departure of Costao, the Churchill brothers arrived on the scene, the first to come it appears is Joaquim Alemao and his associates. They had one look at the driver and proceeded to force open the dickey, removed at least two battery-type boxes from the dickey one of which was earned away by one Roy Miranda along with another per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 say that there was any gold at all in the car. The court committed him to the sessions to undergo trial for an offence punishable under Section 302 of the Indian Penal Code (IPC). 15. Costao did not succeed in appeal against this order. The matter was pursued in the Supreme Court. The apex court observed thus A valiant and a dutiful Customs officer risked his life to fight the mighty underworld of smugglers unarmed and single-handedly. And see! He succeeded after hard chase on his motor cycle - 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 contr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hearsay evidence when no gold was seized; that the CMM discharged the appellants when the department prosecuted them; that the 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 department argued that the Commissioner was right in relying on the version of Costao; that the Commissioner made every attempt lo make Vincy, Baptista, and Sebastian available for cross-examination and their failure to obey the summons is not fatal to the case; that the Commissioner rightly relied on the provisions of Section 138B of the Customs Act which lays down that prosecution can rely on the version of a witness whose presence cannot be ensured without considerable expense and time; that the Commissioner observed that these 3 witnesses were not in India and that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arged by the trial court has no bearing on the departmental proceedings; that the Supreme Court while deciding the criminal appeal filed by Costao has clearly come to the conclusion that the Churchill brothers and their associates were attempting to smuggle gold worth ₹ 8.00 crores and therefore the Tribunal cannot come to any other conclusion in the face of the fact that evidence before the Supreme Court is identical to the one presented before the tribunal; that in the case of Subhash Pandey, the same facts emerge 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 in the criminal appeal filed by Costao. The decisions in the following cases were relied upon : AIR 1968 SC 647; AIR 1976 SC 1455; AIR 1976 SC 1766; AIR 1979 SC 1384; AIR 1983 SC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 statements given by the witnesses if such witnesses cannot be produced without considerable expense and time. Though these provisions are applicable in a case of prosecution under the Customs Act, we see no reason as to why the same principle should not apply in the proceedings before an adjudicating authority. These persons clearly stated that the Churchill brothers and Rodrigues removed the boxes from the dickey. Costao saw the boxes being put in the dickey at Carmona beach. The car was intercepted for 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 aroun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in departmental proceedings. 27. On the issue that the Commissioner relied on the uncorroborated evidence of Costao for coming to a conclusion that the boxes contained gold, we observe that the learned advocate for the department has rightly pointed out that it is not necessary under the Evidence Act that 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 House. The theory that there was no gold at all was debunked by the Supreme Court. A single trustworthy witness can establish a fact. It is not necessary that a crime has to be witnessed by many in order to result in a conviction. In a different context the Supreme Court in the case of K.I. Pavunni v. Assistant Collector, Cochin [1997 (90) E.L.T. 241] held that a person s evidence recorded ..... X X X X Extracts X X X X X X X X Extracts X X X X
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