9911796707
TMI Blog2011 (9) TMI 968X X X X Extracts X X X X X X X X Extracts X X X X ..... nt was found secreting 9 bars of `Suisse' gold, weighing 90 tolas, between his sole and the socks which he was wearing with shoes. His statement under Section 107 of the Act was recorded on 20.8.2000, and his statement under Section 108 of the Act was recorded on 21.8.2000, and 9 bars of gold were seized. The authorities thereafter issued notice dated 12.2.2001 to the appellant to show cause as to why the gold in question be not confiscated, and appropriate penalty in accordance with law be not imposed on him. The appellant had shown cause wherein he had in substance stated that he was a mere carrier of contraband gold handed over to him at Raxaul by somebody, which in turn had to be handed over to another person at Benaras. On a consideration of the entire materials, the learned Joint Commissioner of Customs, Patna, being the adjudicating authority rejected the cause shown by the appellant by order dated 12.3.2002. The operative portion of the order is reproduced hereinbelow:- "Having regard to facts and circumstances of the case as discussed above and in exercise of powers conferred upon me under section 122 of the Customs Act, 62, I pass the following orders:- (i) I order for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh J Sukhawani v. Union of India [1995 Supp.(4) SCC 663]. She further submits that burden of proof in terms of section 123 of the Act is on the appellant. She relies on the judgment of the Supreme Court in Kanungo & Co. vs. Collector of Customs, [AIR 1972 SC 2136 = 1973(2) SCC 438]. In order to give any credence to the retracted statement, the same should above all satisfy the condition of having been made at the earliest possible opportunity. In the present case, it was made after unexplained delay of seven months. She relies on the judgment of the Supreme Court in Surjeet Singh Chhabra vs.Union of India [(1997) 1 SCC 508. She also submits that the statements of the charged persons under the provisions of sections 107 and 108 of the Act are admissible in evidence, and the conclusion of culpability can be based on such statements. She relies on the following reported judgments:- (i) Naresh J Sukhawani v. Union of India 1995 Supp.(4) SCC 663 = AIR 1996 SC 5 (ii) Kanhaiyalal vs. Union of India (2008) 4 SCC 668 (Prs. 40,41) (iii) Collector of Customs vs. D Bhoormull 1983 (13) E L T 1546 (SC) (iv) Commissioner of Customs vs. Ghanshyam Pd.Gupta 2010 (3) PLJR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssession of the contraband goods from the possession of the appellant on 20.8.2000, is admitted. The learned authorities have further found that on enquiry it has transpired that his permanent residential address is district of Begusarai. They have further found that the money receipt allegedly issued by Dhan Cholia Sons was false and fabricated document. They have further found that nobody has come forward to stake ownership to the goods in question. In such a situation, one can safely presume that the appellant was the owner of the goods which he had smuggled from a country of third origin and was brought into India surreptitiously. This has to be read with the position that at every stage of the proceedings before the learned authorities under the Act, as well as before us, the appellant has been insisting for release of the gold in his favour, inter alia, for the reason that none else has come forward to claim ownership of the same. 8. The scope and sweep of the provisions of law relevant in the present context have been the subject matter of a large number of authoritative pronouncements of the Supreme Court and the High Courts. It has been held that the statements und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise, having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making if he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him." "6. A bare reading of the above provision would indicate that for application of Section 24 of the Evidence Act, the following ingredients are required to be established: (a) the statement in question is a confession; (b) such confession has been made by an accused; (c) it has been made to a person in authority; (d)it was obtained by reason of any inducement, threat or promise proceeding from a person in authority; (e) such inducement, threat or promise must have reference to the charge against the accused person; and (f) the inducement, threat or promise must be, in the opinion of the Court sufficient to give an accused person grounds which would appear to him to be reasonable by supposing t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oceedings for collecting evidence to take further action to adjudicate the infringement of the Act and for imposition of penalty prescribed thereunder which would be selfevident from sub-section (4) of Section 108." 10. The Supreme Court has observed in Kanhaiyalal vs. Union of India (supra), that specialized enactments like Narcotic Drugs and Psychotropic Substance Act, and the Customs Act, are meant to deal with the special situations and circumstances. 11. The Supreme Court has observed in Collector of Customs vs. D Bhoormull (supra), that the department is not required to prove its case with mathematical precision. All that is required is that the occurrence and complicity of individuals should be established to such a degree or probability that a prudent man may, on its basis, believe in the existence of the fact in issue. A Division Bench of this Court had the occasion to rely on the same in Commissioner of Customs v. Ghanshyam Pd. Gupta (supra), to which one of us (S K Katriar, J.) was a party. Paragraph-7 of the judgment is relevant in the present context and is reproduced hereinbelow:- "7. Law is equally well settled that in all such quasijudicial proceedings, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
