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TMI Blog1985 (11) TMI 232X X X X Extracts X X X X X X X X Extracts X X X X ..... brics of foreign origin of the value of ₹ 1,05,608/-, and the occupants of the vehicles could not produce proof of licit import. The Customs Officers, therefore, seized the goods in the reasonable belief that they were smuggled into India and they also seized the two vehicles as they were used in the carriage of smuggled goods. The statements of the drivers of the two vehicles and the statements of the other occupants were also recorded. After further investigation show cause notices were issued to the present appellants and others. The Additional Collector of Customs, Ahmedabad, who held the enquiry ordered absolute confiscation of the goods as well as two motor cars. He imposed a personal penalty of ₹ 25,000/- each on the two appellants. He further imposed a personal penalty of ₹ 25,000/-, ₹ 2,000/-, ₹ 2,000/-, ₹ 2,000/- and ₹ 500/- on five others. Being aggrieved by the penalty the appellants filed two separate appeals before the Central Board of Excise & Customs. The appeals were clubbed and heard by the Board. The Board on consideration of the material on record and the arguments addressed rejected the appeals and confirmed the persona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the revision filed by the department was rejected by the Session Judge. The Board committed an error in not bearing in mind the general principal of law that where a finding of fact is given by a competent judicial court, the Quasi-Judicial Tribunals are required to accept such decisions without reservations. One of the co-accused Shri Ashraf had not implicated the appellant. Therefore, the question of other three witnesses corroborating the appellant's implication by corroborating the evidence of Ashraf would not arise. The statement of Shri Ramesh, the driver would indicate that it was Mohd. Chotu who had instructed him to take the car to Baroda and Mohd. Chotu who was also present when the car was taken away by the driver, but in his statement the name of the appellant has been deliberately introduced. The Board failed to consider this aspect. The Board further failed to notice that Mohan Devkar not only did not implicate the appellant but categorically stated that it was Mohd. Chotu who had entrusted the car to Ramesh and excepting Ramesh and himself there was none else in the car. The Board erred in relying upon the statement of Shri Mohmad Salim. Mohd. Salim gave a f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umar had been recorded it would have been made clear as to the ownership of the car. Shri Kapadia also urged that when the appellants had taken a specific plea as to their stay in a hotel, the Customs ought to have investigated the defence and they ought to have recorded a statement of the Hotel Manager and inspected the registers maintained in a hotel. It was also urged by Shri Kapadia that the goods seized are not those mentioned in Section 123(2), and, therefore, the burden is on the department to establish that they are smuggled goods. Finally, Shri Kapadia urged that the Additional Collector had taken into consideration the previous involvements of the appellants, and, therefore, his findings are biased and the Board failed to take that aspect into consideration. 7. Shri Pattekar appearing for the respondent Collector submitted that the statements of the drivers and the occupants clearly implicated both the appellants. They had no reasons to falsely implicate the appellants. They have not retracted their statements till they sent a reply to the show cause notice. Shri Pattekar further urged the defence plea that the appellants were not at Surat on the relevant day and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f facts recorded by the Criminal Courts is binding on the quasi-judicial authority. 11. Let me proceed to consider the above main defences and the other grounds which were set out earlier. Immediately after the cars were intercepted the statements of the drivers of the two cars and the two persons sitting in the cars were recorded. The driver Ramesh stated among other things that the appellant Chotu gave instructions to transport contraband smuggled fabrics from Surat to Baroda. He was further instructed to contact Dudhwala of Supreme Electric Stores, Surat, on the way to Baroda near Miagam Karjan. It was also stated in his statement that there was a pilot car in which Dudhwala and one of the appellants' namely Hasmukh Gandhi were travelling. The investigation carried out as to the ownership of the car which Ramesh was travelling revealed that it was originally registered in the name of Mohd. Sadiq Gulam of Bombay, later transferred in the name of Rajendra Kumar Vasantlal, and employee of Supreme Electric Stores, Surat. The investigation further revealed that the said car was agreed to be purchased by the present appellants and Dudhwala for ₹ 5,500/-. The driver of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plice cannot be made a basis for conviction, but then prudence requires that accomplice's evidence needs corroboration. This corroboration may be by direct evidence or by circumstantial evidence. The statement of a car broker, Babu Motorwala would go to show that one of the cars intercepted was agreed to be purchased by the present two appellants and Thakurbhai Dudhwala on whom the Additional Collector had imposed a penalty of ₹ 25,000/- and who had not preferred any appeal against that order. The ownership of the car lends corroboration to the statements of the drivers. It is significant to know that the appellants did not take a contention that Ramesh and Salim were not the drivers of the car. There was no need for Ramesh and Salim to state that they were instructed by the appellants to carry or transport the goods, if really, they were instructed by someone other than appellants. It was not the contention of the appellants that these drivers are the drivers of someone else or the goods which they carried either belonged to the drivers or to someone else. It is true that the two drivers and the other two persons retracted their statements subsequently, but then the retracti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ho was stated to have administered the medicine to the appellant Hasmukh. The learned Additional Collector had considered the documents produced in proof of the plea of alibi put forward by the two appellants. In paragraph 12 of his order he had considered this plea and he had come to the conclusion that the documents would not establish that it was the present appellant, Chotu who had stayed in hotel Claridge. This finding was not shown to be erroneous. The plea of alibi put forward by Hasmukh Gandhi was considered in para 15 of the Order-in-Original. The Additional Collector had come to the conclusion that the bill or the medical certificate would not be themselves establish the plea of alibi. He had observed that the name of Hasmukh Gandhi is common in that part of the country. The finding of the Additional Collector cannot be considered as not justified in the circumstances of the case. 13. During the hearing of this appeal, Shri Kapadia appearing for Hasmukh Gandhi vehemently contended that the hotel bill, affidavit of Shri Arvind Patel, Assistant Manager of the hotel, the medical certificate given by Shri Ranjit Oza and the statement of Ranjit Oza recorded on 9-8-1974 e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be examined before an authority. No reason is given why Hasmukh did not choose to adduce evidence of this witness at the time of adjudication. It is also not clear why this affidavit was not filed before the adjudicating authority. This affidavit appeared to have been got up subsequently for the purpose of this appeal. 15. Now coming to the Criminal Court judgement suffice it to say that prosecution and adjudication are two independent proceedings. The possibility of certain evidence not placing before the Criminal Court and the possibility of placing those evidence before the adjudicating authority cannot be altogether ruled out. Further, in a criminal trial the criminal court is bound by the Criminal Procedure Code and the Evidence Act. Those two legislations are not applicable to adjudicating proceedings. The burden of proof in the two proceedings would be different, the contention of the learned Advocate that the finding of the facts recorded by the Criminal Court is binding on quasi-judicial authority is rather difficult to accept. This very argument was urged before the Division Bench of the Bombay High Court in Criminal Writ Petition No. 1004 of 1981, Maniklal Pokh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. The power to be exercised by the Collector of Customs or Deputy Collector of Customs or by an Assistant Collector of Customs or by Gazetted Officer of Customs lower in rank than an Assistant Collector of Customs in accordance with the value of the goods liable to confiscation. The procedure to deal with confiscation or imposition of penalty is prescribed in Section 124 and under that provision a notice in writing has to be given to the concerned person informing him of the grounds on which it is proposed to confiscate the goods or to impose a penalty, and he is to be given a reasonable opportunity of being heard in the matter. Then comes Section 127 which expressly provides that even though an order of confiscation and an order of penalty is made by the Customs Officer that does not affect the liability to punishment under the provision of Chapter XVI or under any other law. We already reproduced the provisions of Section 135 make it pointedly clear that the power to prosecute under Section 135 is without prejudice to the action which may be taken independently under the provisions relating to confiscation and penalty. Now, it cannot be the argument that while independent pow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their stay at Bombay and Ahmedabad then the versions given by the drivers would have been false. Further, Shri Kapadia was right in contending that the Board considered the statements of the drivers and the occupants of the cars as independent evidence and independent of each other. The Board failed to notice that all those persons stand in the character of accomplices. The corroboration required is independent corroboration and not the corroboration of one accomplice's statement by the statement of another accomplice. 18. The contention of Shri Kapadia that since the provisions of Section 123(2) are not applicable to the seized goods, the burden is on the department to establish that the goods are smuggled goods and that the department had not discharged that burden is not relevant for the purposes of these two appeals. Neither the appellants had claimed ownership of the goods nor did they contend that the goods seized are not the goods of foreign origin nor did they contend that they were licitly imported into India. 19. There is no merit in the contention of Shri Kapadia that the burden has been wrongly cast on the appellants. The department had discharged the initia ..... X X X X Extracts X X X X X X X X Extracts X X X X
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