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TMI Blog2008 (7) TMI 701X X X X Extracts X X X X X X X X Extracts X X X X ..... haikh Ramjan Ali and Abdul Mazeed Khan were sent to the Customs Arrival Hall. In that letter it was stated inter alia that the said two passengers had arrived from Singapore via Dhaka and had declared huge amount of gold jewellery and gold bars. So the gold along with passengers were being forwarded to NSCBI Airport. However after screening of hand baggage of the accused passengers no gold bar or gold jewellery could be detected. In the meantime the flight No. BG-091 was thoroughly rummaged by Customs Officers posted at NSCBI Airport which resulted into recovery of 32 pieces of gold bars of foreign origin totally weighing 3712 grams and six adhesive taped packets containing gold jewellery, all kept concealed in any empty space underneath the wash basin of toilet of the said aircraft. Another two adhesive taped packets containing gold jewellery were found concealed behind medical box inside the rear gallery of the aircraft. In addition to above loose 35 pieces of gold finger rings were recovered from underneath the Seat No. 16C. Thus the total weight of gold jewellery comes to 17169 grams. After completion of investigation, SCNs dated 11-9-2002 were issued to Shri Sheikh Ramjan Ali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could not ave hit the contraband gold articles there without the knowledge and active cooperation of the crew of the said aircraft. (ii) Moreover, the Captain and Junior Purser did not and over the passengers along with the gold to Kolkata Customs Authorities. In fact the Biman Bangladesh Airport bearing registration No. S2ACW (flight No. BG-091 dated 26-3-2002) was rummaged on the basis of specific information received from Shri Ravada Rama Rao, Air India Hygeine attendant cleaning one rear toilet of the aircraft leading to the recovery of gold bars, gold jewellery chains and finger rings recovered from the space adjacent to the garbage box underneath the wash basin and also adjacent to the flash tank inside the rear toilet and underneath the seat cushion of seat 16 C and behind the medical box in the medical box camber inside rear gallery of aircraft. Secreting the gold in 3 different places of the aircrafts in a short span of 25 minutes would not have been possible without the active connivance of the crew of the aircraft. The Captain being the person in change of the aircraft and his crew having the specific knowledge about the two passengers carrying gold in their hand b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be concluded that mere stating that the conveyance was used for concealing the subject goods without the knowledge or connivance of Biman, its agents and the Captain-in-charge of the said aircraft cannot absolve themselves of the onus to prove that it was done without their knowledge or connivance in terms of Section 115(2) of the Customs Act, 1962. Further that concealment in the medical box makes the whole argument of use of aircraft in concealment without the knowledge of the Person-in-Charge of the Conveyance, a false one. Medical Box is not something that any passenger uses in normal circumstances. Crew J/P Mrs. Nazma Chowdhary in her statement has also stated that anybody of the crew members can operate the medical box and anyone of the cabin crews is the in-charge of the medical box. The fact that the Crew, i.e., the Captain and the J/P knew about these two passengers carrying the subject Gold Bars/jewellery, and still the passengers could conceal them in the Medical box, proves beyond doubt the connivance/knowledge on the part of the crew. It can also be stated that no crew member can be in a position to know what any passenger using toilet is doing inside the toilet, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd gold ornaments were brought to the aircraft before departure from Zia International Airport, Dhaka. The passengers were arranged to be seated side by side by the Bangladesh Customs Officials and the bags containing gold bars and gold ornaments were handed over by the Bangladesh Customs Officers to the concerned passengers. The captain of the Aircraft Mr. Isstiaque Hussain was requested by the Bangladesh Customs Officials to hand over a sealed envelope to Dum Dum Customs Officials on arrival to Dum Dum Airport. He was also requested to hand over the passengers to the Customs Officials at Dum Dum Airport. He also told Captain Mr. Isstiaque Hossain and junior purser Mrs. Najma Chowdhury that the two passengers were carrying gold bars and gold ornaments with them. One of the crew members. (4) On reaching Dum Dum Airport the Captain of the flight called the Station Manager, Biman Bangladesh Airlines, Dum Dum Shri M. S. Ali Akbar to the cockpit and handed over to him the sealed envelope received from Customs Officials of Bangladesh in Dhaka and the two passengers along with their bags said to contain gold bars and gold ornaments for handing over them to the Customs-In-Charge, Du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owdhury to the tune of Rs. 1,00,000/- each. The ld. Commissioner also ordered for confiscation of the said aircraft No. BG 091 under Section 115(2) of the Customs Act. 1962. He however, allowed to redeem the confiscated aircraft on payment of redemption fine of Rs. 20,00,000/- under Section 125 of the Customs Act, 1962. he also confiscated the gold and gold ornaments seized by the Customs Officials at Dum Dum Airport. (7) From the facts of the case it would be evident that the two passengers namely Surboshree (1) Mr. Sheikh Ramjan Ali & (2) Mr. Abdul Majeed Khan brought gold and gold ornaments from Singapore and the said two transit passengers illegally brought gold and gold ornaments from Singapore on 25-3-2002 and were intercepted by the Bangladesh Customs Officials at Zia International Airport, Dhaka. They were detained and the gold and gold ornaments were also detained by the Bangladesh Customs. At the request of Bangladesh Customs Officials, Dacca, the Captain of the aircraft to carry the sealed letter to be handed over to the Customs Officials, Dum Dum Airport. The Customs Officials, Dacca requested to hand over the said two passengers to Dum Dum Customs Officials with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d penalty on the appellant, Biman Bangladesh and its two employees, of Rs. 1,00,000/- on each of them. (10) The letter dated 26-3-2002 sent by Bangladesh Customs under seal cover with the Captain of the aircraft has been enclosed at Page 72 of the Paper Book. From the said letter, it would be evident that the said letter was duly received by Shri Banti Singh, Superintendent from the Station Manager of Biman Bangladesh and also two passengers with their hand baggage. It was incorporated in the said letter by the said Customs Superintendent, Dum Dum Airport that he received the original letter dated 26-3-2002 along with photocopies of the declaration form (4 pieces) and the said two passengers through the Station Manager, Biman Bangladesh Airlines. Detailed recovery from Aircraft (BG091) would be forwarded. From this, it would be evident that after receipt of the letter and the passengers and finding no gold with them, searches were carried out in the Aircraft and subsequently, the same were recovered from different places of the Aircraft. In case the gold and jewellery were recovered earlier, the same would have been incorporated in the endorsement itself. (11) Be that a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ornaments by the Customs Authorities of Dum Dum Airport. Hence, it cannot be held that the Aircraft actually did not carry the contraband gold and gold ornaments. It carried the detained gold and gold ornaments which were released to the passengers for enabling the Customs Officials at Dum Dum Airport to seize the same and to confiscate the same under the provisions of the Customs Act, 1962. Hence, the aircraft could not be confiscated in the present case: The following decisions cited to bring home contention that when the aircraft was not seized nor the same was released under Bond or when the aircraft is not in possession or control of the Customs of Kolkata. Hence, the goods are not liable to confiscate: 1. 2003 (156) E.L.T. 122 (Tri - Del.) 2. Photo Deal v. Commissioner of Customs, Chennai - 2004 (170) E.L.T. 104 (Tri - Del.) 3. 2000 (121) E.L.T. 14 (S.C.) 4. 2008 (224) E.L.T. 453 (Tri - Bang.). All these decisions will got to prove that the aircraft is not liable to confiscation under the facts and circumstances in this case. ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st aid box to conceal the gold without being noticed by the Airlines Staff. Merely on a wild suspicion, the concerned Airlines, its Captain and Staff, who dutifully carried the documents from Bangladesh Customs Officials and passed on the same through their ground Staff to the Indian Customs Officials, cannot be proceeded against under the Indian Customs Law. It is also improbable that they connived with the suspect passengers in hiding the gold when they were carrying the documents regarding the gold which was to be passed on and was passed on to the Indian Cutoms Officials. They could not have been unaware of the consequences they would face if the gold was not found on the passengers or in the Aircraft in view of the information from the Bangladesh Customs and it would have been full fool-hardy on their part to connive with the suspect passengers. 4. It is nobody's case that the Airlines Staff have never been found conniving with the passenger smuggling gold. But the records in this case do not show any evidence of such connivance. Investigation done by the Indian Customs Officials and all the statements recorded by them do not bring to light any connivance of the Airlines ..... X X X X Extracts X X X X X X X X Extracts X X X X
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