TMI Blog2019 (12) TMI 656X X X X Extracts X X X X X X X X Extracts X X X X ..... f the seal seen on the application is dated 20.03.2014 and that too of Economic Offences Court at Egmore and therefore the certified copy cannot be relied. On perusal of the bail application furnished before me which is seen in page 12 of the compilation, the docket sheet of the bail application shows that it was filed on 01.03.2014. The Court has given the number as M.P.No.420/2014. The notice of the application is seen received by the Prosecutor on 01.03.2014. The order granting bail was passed by the Metropolitan Magistrate, George Town on 03.03.2014 - the doubt raised by the Commissioner (Appeals) whether the appellants were in possession of the bills at the time of filing bail application itself, stands eliminated. The bail application has been countered by the Ld. A.R on the basis of the impression of seal seen on the main application. This document is photocopy of a certified copy obtained by the appellants from the Magistrate Court, Egmore. The application for certified copy was made on 2.11.2017 and certified copy was delivered on 9.11.2017 from the impression of seal made by copyist Superintendent for issue of certified copy - it can be reasonably inferred that the sea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lted in recovery of one crude bangle coated with white powder and 2 gold bars with foreign markings. Thus gold totally weighing 998 gms. valued at ₹ 29,23,142/- was recovered and crime under 41 read with 102 Cr.P.C was registered. They were arrested and produced before the Metropolitan Magistrate Court, George Town, Chennai. The accused were enlarged on bail. Later, the case was transferred to the Metropolitan Magistrate of Economic Offences Court at Egmore on the belief that the case involved smuggling of gold. The Additional Chief Metropolitan Magistrate directed the Customs department to receive the seized goods and for further action. During such investigation by Customs, Mr.S.Ramki (Appellant-1) stated that he received gold bars from one Shri V. Ramachandran (Appellant-2) on the instructions of his maternal uncle Mr. P.Dilli Raja (Appellant-3). Shri Ramki also produced cash memos / bills for purchase of these bars and jewellery. On verification of these documents, department entertained a view that they are not genuine. Show cause notice was issued proposing to confiscate the gold and also for imposing penalty. After due process of law, the original authority confirmed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that the original authority has observed that the appellant had produced bills to show the purchase of the gold. Department later contended the appellants had produced only xerox copies which is incorrect. The original bills were produced before the department and later taken back after substituting with xerox copies. Thus appellants have established that the gold was purchased from Imphal. Department also conducted investigation with the sellers as shown in the bills namely, Rashid Jewellery and Radhika Jewellery, Imphal who admitted that they have sold the gold described in the bills to the appellants. The department had also verified accounts kept by the sellers and found the carbon copy of the bills issued to the appellant. These documents would establish that the appellants purchased the gold from the sellers at Imphal. The allegation that the appellant has smuggled gold into India is therefore false and without any factual basis. 3.2 The department has denied to accept the bills stating that they are produced as an afterthought. He stressed that apart from a small discrepancy that place of residence has not been mentioned in the carbon copy kept with the se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt that, only Mr. S. Ramki was intercepted at the railway station and Mr. P.Dilli Raja was not present at the time of arrest is incorrect and that it is made only to suit the case of the appellant. He adverted to the findings made by the original authority in the denovo order dt. 18.07.2018 and submitted that the original authority has confined himself to the directions made by the Commissioner (Appeals) and has not acted beyond the scope of remand. After enquiry, the original authority held that the original bills were not produced by the appellants before him or before the Magistrate Court while filing the bail application. To support this argument, Ld. A.R adverted to the copy of the bail application attached to the written submissions filed by the counsel for appellant. It is submitted by Ld. A.R that though the bail application is filed before the Magistrate Court George Town, Chennai on 20.03.2014, impression of the seal affixed on the bail application is that of Economic Offences Court at Egmore, Chennai-600 008. This itself would show that the bail application produced by them is a false one. Apart from this bail application, there is no other evidence to show that the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... then handed over to Customs department. The properties seized were also handed over by police to customs authorities. As per records four bars of gold biscuits, two white powder coated gold bangles and one blue color jeans were received by Customs from the Inspector of Police. After investigations SCN was issued by Customs authorities in which it is however alleged that two gold bars and one of crude bangle was concealed in the jeans pant of Shri Ramki and 2 gold bars and one crude gold bangle was concealed in the pants of Dilli Raja. Thus though in the SCN it is alleged that both Shri Dilli Raja and Shri Ramki were each carrying gold in the pants worn by them only one pant was seized along the gold by police and handed over to Customs. The Commissioner (Appeals) in the first round of litigation has observed that the seizure of one pant only does not fit into the narration of recovery and seizure given in the SCN issued by Customs department. 7. This apart it is the consistent case of appellants that they purchased the gold from Imphal. The bills also show that gold was purchased from Imphal. Shri V. Ramachandran is a permanent resident of Imphal and possess Voters ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e name mentioned, for which the adequate explanation is given. In the case laws relied upon in the impugned order, the bills produced for showing licit purchase of the gold were found to be fictitious or the person shown as the one who issued the bill, has disowned issuing the bill. Therefore, the ratio of such case laws would not apply in the facts of the present case. 12. In the instant case, no investigation has been carried out on how the gold biscuits were acquired by M/s.Rashid Jewellers and whether these were of a smuggled nature. The proprietor of M/s.Rashid Jewellers, in his statement, has stated that he acquired the gold from mortgage or from buying in the market. In the absence of the further investigation to show that M/s.Rashid Jewellers purchased the smuggled gold biscuits, it cannot be said that the gold biscuits found in the possession of the appellants were of smuggled nature. 13. However, to bring the case to a definite conclusion, it would be necessary to cause enquiry by obtaining the certified copy of the bail application to ascertain whether the impugned bills were available at the time of remand of the appellants after they were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g Section (Rummaging Intelligence) informed vide their note in F.No.OS.No.02/2014 RSI-SEA dated 28.05.2018: From the records available in R I Section it is observed that the bills mentioned were not available during seizure and were submitted to the court later. Also record does not show that bills certified by court were submitted while recording Statements at this office on 12.05.2014. 10. On going through the discussions made by the original authority, I find that instead of confining himself to comparing or ascertaining the fact after obtaining certified copy of the bail application, has conducted re-adjudication as to whether bills are genuine or not. It is however recorded by him that bills were not available during seizure and that these were submitted to court later. Needless to say that the bail application was filed before court only after arrest and seizure. He does not state that the bills were not mentioned in the bail application. 11. Ld. Counsel has furnished certified copy of bail application submitted before the George Town Court, Chennai. Ld. A.R has countered the said application submitting that the impression of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llers admitted that they have sold the gold to the appellants herein. They have also furnished the account book kept with them in which it is mentioned that the gold described in the bills was sold to the appellant. The department alleges there is some discrepancy between the bills and the carbon copy kept with the seller. In page 51 of the order passed by the original authority dt. 18.07.2018, the scanned copy of said original and the carbon copy of bills of the seller have been extracted for making comparison. On bare perusal of both, it can be seen that both are of the same hand writing. The only discrepancy noted by the department, is that in the bill No.366, the purchaser is shown as Mr. Ramachandran, Moreh, Manipur whereas in the carbon copy kept by the seller, the name is written as V.Ramachandran, Moreh. There is no discrepancy or difference with regard to the description of gold. In para 11 of the earlier order by Commissioner (Appeals) he has discussed this aspect. The sellers have given statements admitting sale of gold vide such bills to the appellants. The books of account kept by the sellers in their ordinary course of business also reflects the transaction. Except fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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