TMI Blog1992 (3) TMI 351X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioners in their inculpatory statements given before the authorities during investigation and even during personal hearing the petitioners insisted on the right of cross-examination of the said persons. Apart from it, the petitioners also submitted written arguments which are referred to in para 32 of the impugned order wherein their plea for cross-examination was reiterated. The learned adjudicating authority has denied the petitioners the right of cross-examination without assigning any valid or proper reason under law and denial of this valuable right is violative of the principles of natural justice and would vitiate the impugned order. The learned Counsel further urged that the petitioners have not given any inculpatory statement and no contraband gold was recovered from the petitioners and the petitioners have been visited with penalty only on the basis of the statements recorded from the aforesaid persons. The learned Counsel placed reliance on the ratio of the ruling of the Supreme Court in the case of State of Kerala v. KT Shaduli reported in AIR 1977 page 1627 and in particular para 5 of the said judgement and urged that the aim of rules of natural justice is to sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. The learned Counsel also referred to the order of the High Court in the COFEPOSA proceedings quashing the detention of Abubucker particularly with reference to certain observations which according to the learned Counsel would indicate that the statements were not voluntary and true. Finally he also pleaded financial hardship stating that though Shri Abubucker is an Income Tax assessee and owns a house in Harrington Road, Madras and runs a Medical shop in the name and style of Pioneer Pharmacy, he is unable to make the pre-deposit of penalty. He however, offered to make a pre-deposit of ₹ 50.000/-. 4. Shri Sundaram, the learned Senior Central Govt. Standing Counsel appearing on behalf of the Department made following submissions inter alia. There is no vested right of cross-examination in a person who is proceeded against in adjudication under the Act and the essence of concept of natural justice is only to ensure that no person shall be condemned without being given an opportunity of being heard by a Tribunal and reasonable or fair opportunity of being heard in essence means opportunity of being heard by an unbiased Tribunal. If any reliance is placed on evidence or re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n law on grounds of violation of principles of natural justice as contended on behalf of the petitioners and in the light of the plethora of evidence dealt with in the impugned order by the adjudicating authority and also in the context of the admitted fact that the statements of the co-accused or co-noticees have been furnished to the petitioners and the petitioners were given full and fair and reasonable opportunity to defend themselves against the charges, the impugned order is fully tenable in law. Prima facie there is no infirmity either on facts or on law warranting grant of waiver of pre-deposit of penalty. 5. We have carefully considered the submissions made before us. Proceedings were instituted against the petitioners and others in connection with seizure of 2250 gold biscuits with foreign markings weighing 262.125 Kgs valued at more than ₹ 8.74 crores resulting in the impugned order of the Collector of Customs, Madras, dated 22.1,1991 referred to supra. The question that arises for our consideration in the present applications is whether the impugned order is not prima facie sustainable in law on ground of violation of principles of natural justice. Though the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Principles of natural justice are not embodied rules and their aim is to secure justice and prevent miscarriage of justice and these rules supplement the law of the land. The Supreme Court in the case of Abraham v. Collector of Customs 1976 KLT 660 has dealt with the plea of breach of Natural Justice as under: We may first deal with the question of breach of natural justice. On the material on record, in our opinion, there has been no such breach. In the show-cause notice issued on August 21,1961, all the material on which the Customs Authorities have relied was set out and it was then for the appellant to give a suitable explanation. The complaint of the appellant now is that all the persons from whom enquiries were alleged to have been made by the authorities should have been produced to enable it to cross-examine them. In our opinion, the principles of natural justice do not require that in matters like this the persons who have given information should be examined in the presence of the appellant or should be allowed to be cross-examined by them on the statements made before the Customs Authorities. Accordingly, we hold that there is no force in the third contention of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not think that the mere fact that the appellant was not given an opportunity to cross-examine the maker of that opinion would be violative of the principles of natural justice. The Division Bench of the Calcutta High Court in the case of Kishanlal Agarwalla v. collector of Land Customs dealing with the concept of rule of natural justice and audi alteram partem and in particular about the plea of denial of natural justice on ground of denial of cross-examination has made the following observations which in our view are apposite in the context of the present case: There is a good deal of misconception on this question of the right of cross-examination as part of natural justice. Natural justice is fast becoming the most unnatural and artificial justice and for that confusion the Courts are no less responsible than the litigants. Ordinarily the principle of natural justice is that no man shall be a judge in his own cause and that no man should be condemned unheard. This latter doctrine is known as audi alterant partem . It is on this principle that natural justice ensures that both sides should be heard fairly and reasonably. A part of this principle is that if any reliance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng that the return submitted by the assessee was incorrect and incomplete, the assessee was entitled to an opportunity to have Hazi Usmankutty and other wholesale dealers summoned as witnesses for cross-examination. 6. The facts in the present case are totally different as the Department has placed reliance on the statements of persons in position of co-accused who have also been proceeded against in adjudication as the petitioners are and penalised under the impugned order. Copies of their statements have been given to the petitioners and those statements were also retracted by the persons concerned. As a matter of fact the Supreme Court even in Shaduli's case cited supra while highlighting the fact that rules of natural justice are flexible, referred to the observation of the earlier ruling of the Supreme Court with approval in the case of Kraipak v. Union of India which run as follows: The aim of the rules of natural justice is to secure justice or to put negatively to prevent miscarriage of justice and justice in a society which has accepted socialism as its article of faith in the Constitution, is dispensed not only by judicial or quasi-judicial authorities but also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... each of the petitioners to make a pre-deposit of ₹ 2.00 lakhs (Rupees Two lakhs) on or before 29th May 1992 and report compliance subject to which pre-deposit of the balance amount would stand dispensed with pending appeal. The matter will be called on 29th May 1992 for reporting compliance. Sd/- (S. Kalyanam) Member V.P. Gulati, Member 10. The above applications have been filed under Section 129E of the Customs Act, 1962. The applicants have pleaded for dispensation of pre-deposit of penalty of ₹ 10.00 lakhs each under Section 112(a) and (b) of the Customs Act, 1962 under the impugned order of the Collector of Customs, Madras. Proceedings were drawn against the applicants consequent on the recovery of smuggled gold weighing 262.125 Kgs valued at ₹ 5,28,96,825 international value on 7/8 December 1986. S/Shri MV Khader, M. Mohammed and Mammutty were apprehended and so also MKS Abubucker. Statements were recorded from them. As a result of the follow-up action residential premises of Sridhar one of the applicants at Chambers Road, Madras was also searched. At the time of seizure a Car TMG 4652 was also found on the premises from where the contraband gold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , he pleaded that no confessional statement had been given by the applicants and there was no recovery of any contraband gold from them. He pleaded that since reliance has been placed on the statements of four persons who have implicated the applicants, the applicants requested for cross-examination of the said persons and this request was turned down by the adjudicating authority. He pleaded that in law this evidence should have been tested and this could be possible to do only by cross-examination of the said, persons. In this connection he cited the judgement of the Kerala High Court reported in AIR 1977 page 1627 in the case of State of Kerala v. KT Shaduli. He further pleaded that in the absence of any independent evidence implicating the applicants, the action against the applicants was not maintainable in law. He also pointedly referred to the mention in the order-in-original about the recovery of a slip from the Car TMG 4652 which was parked in front of the house from where gold was seized. He pleaded that without putting the applicants on notice in regard to this slip in the show cause notice, the authorities cannot hold this slip as a piece of corroborative evidence for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en this order was passed and in that case the Departmental Representative made a concession that the said right existed. He pleaded that in view of this, the judgement of the South Regional Bench could not be pressed into service by the applicants. Elaborating further he pleaded that even in Evidence Act statements can be taken as piece of evidence and co-accused cannot be cross-examined in all cases. He pleaded that the question of admissibility of the statements and the evidentiary value of the same will have to be gone into in detail after hearing arguments in depth on the question of law and that prima facie it cannot be said that on these grounds there is any infirmity in the order of the lower authority. 13. I observe that at this interlocutory stage the scope of the enquiry is rather limited and what is to be seen is whether prima facie the lower authority's order can be taken to be not a proper one or bad in law. I have given a careful thought to the pleas made by both the sides. To appreciate the issues a brief reference to the statements recorded from the persons who have implicated the applicants is necessary. It is seen that applicants MV Khader, Mohammed and Mam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acceptable statements evidencing the role of the persons charged. The Division Bench of the Calcutta High Court in the case reported in 1977 TLR 1754 have clearly observed in paras 3 4 that 'right of cross-examination is not necessarily a part of reasonable opportunity...even if the appellant's Advocate had asked for such opportunity'. The same High Court in the case of Kishanlal Agarwalla v. Collector of Land Customs has observed as under: There is a good deal of misconception on this question of the right of cross-examination as part of natural justice. Natural justice is fast becoming the most unnatural and artificial justice and for that confusion the Courts are no less responsible than the litigants. Ordinarily the principle of natural justice is that no man shall be a judge in his own cause and that no man should be condemned unheard. This latter doctrine is known as audi alterant partem . It is on this principle that natural justice ensures that both sides should be heard fairly and reasonably. A part of this principle is that if any reliance is placed on the evidence or record against a person then that evidence or record must be placed before him for his ..... X X X X Extracts X X X X X X X X Extracts X X X X
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