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TMI Blog2023 (2) TMI 620X X X X Extracts X X X X X X X X Extracts X X X X ..... kh 112(b) 3. C/75234/2022 Shri Ajay Kumar Gond 5 Lakh 112(b) 4. C/75406/2022 Shri Akash JagdishIssrani 10 Lakh 112(a) & (b) Since all the Appeals are arising from common Order-in-Appeal, all the four Appeals have been taken up together for consideration on merits. 2.1. The facts of the case in brief are that the first three Appellants viz. Shri Amit Ghosh, Shri Ajay Kr. Gond & Shri Sanjay Gond were all working as Havalders of Customs at NSCBI Airport, Kolkata and on 06.03.2017, said three Appellants were intercepted together in front of Gate No. 4A & 4B of Netaji Subhash Chandra Bose International Airport (NSCBI) Airport, Kolkata by the Officers of Directorate of Revenue Intelligence, Kolkata at around 20:40 hrs. when they allegedly named the fourth Appellant viz. Shri Akash Jagdish Issrani who was then intercepted from a Mumbai bound flight at the Domestic terminal of NSCBI Airport, Kolkata and thereafter, they were taken to the office of DRI, Kolkata at 8, Ho-Chi-Minh Sarani, Kolkata-700071 where there was alleged recovery and seizure of 2 pcs. of gold weighing 1000 gms. each from Shri Amit Ghosh and 2 pcs. of gold weighing 1000 gms. each from Shri Ajay Kumar Gond. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icating Authority. Hence, the present appeals praying for setting aside of the respective penalty upon the Appellants. 3.1. Shri Arijit Chakraborty, Ld.Advocate appearing on behalf of first three Appellants contended that the Summons under Section 108 of the Customs Act, 1962 were issued to all the three Appellants on 06.03.2017 requiring their appearance before the DRI Authority at 10:30 p.m. of 06.03.2017, but the purported statements are all dated 07.03.2017 which evidences the fact of overnight detention of the Appellants and extraction of statements from them. Further, the Memos of Arrest reflects the fact that the Appellants were put to arrest at 22:00 hrs. on 07.03.2017 i.e. after more than 24 hrs. from their interception and further, the Appellants were produced before the Chief Metropolitan Magistrate, Calcutta on 08.03.2017 after 2 p.m. and as such, the Appellants were detained at the office of DRI, Kolkata from around 10:00 p.m. of 06.03.2017 to 1 p.m. of 08.03.2017 when the said purported statements all dated 07.03.2017 were recorded/extracted from the Appellants and accordingly, the Appellants filed their respective Retraction Petitions before the Chief Metropolitan M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no reason of seeking cross-examination was provided, but went on to decide the matter upon the alleged fact that there was recovery of gold from the two of the Appellants. This is absolutely bad in law and liable to be quashed. 3.3. It is submitted that when the allegation of recovery of gold from two of the Appellants could not be established in course of adjudication and/or in Appeal before the Ld.Commissioner (Appeals) and when the initial statements extracted from the Appellants during their illegal detention for more than 40 hrs. at DRI office, have been duly retracted by them and there is no other evidence to implicate the Appellants in the alleged act of smuggling, penalty/s imposed upon them is liable to be set aside. 3.4. It is contended that the Appellants being Havalders of Customs were protected under Section 155(2) of the Customs Act, 1962. In the present case, the "accrual of such cause" was on 06.03.2017 and hence, the period for initiating any proceeding against the first three Appellants expired on 05.06.2017. Further, the proceeding under Section 124 of the Customs Act, 1962 was initiated against the Appellants by way of Show Cause Notice dated 05.09.2017, but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nch of this Tribunal at New Delhi in the case of Kuber Tobacco Product Ltd. v. Commr. of C.Ex., Delhi [2013(290) ELT 545 (Tri-Del.)] to contend that since "gold" is notified under Section 123 of Customs Act, 1962, the "burden of proof" is on the Appellants to show that the gold seized in this case, is of non-smuggled nature and the statements were obtained by threat or coercion. 5.3. He further submitted that the denial of cross-examination of panch witnesses is not violation of natural justice since the Appellants have failed to prove beyond doubt that the gold bars of foreign origin were not recovered from their possession during the search conducted on their person. 5.4. It is contended by the Ld.Authorized Representative for the Revenue that the first three Appellants shall not be entitled for the immunity under Section 155 of Customs Act, 1962 since sub-section (1) thereto provides only immunity for act done or intended to be done in 'good faith' and in the present case the said three Appellants were found in possession of seized gold and Indian Cash currency, which they could not account for and as such, their act was not in 'good faith'. He prayed for upholding of the Orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s recorded. The Chief Metropolitan Magistrate, Calcutta in his Orders dated 08.03.2017 in Misc. Case No. 14718/17 while remanding the Appellants, amongst others, to judicial custody till 14.03.2017 had directed that "Superintendent PC Home is directed to allow the IO of the DRI, Customs to enter into the Jail premises for interrogation and also allow them to reduce the statement if any of the accused person in writing in course of his interrogation" It appears from a Letter dated 10.03.2017, being RUD No. 15 to Show Cause Notice, that only on 13.03.2017 the IO of DRI visited the jail premises when the Jail Authority endorsed that "Interrogation done in my presence" and the IO of DRI made endorsement that "Interrogation done but they (all the six accused) refused to give any statement". The Chief Metropolitan Magistrate, Calcutta again vide his Order dated 14.03.2017 held that "DRI officials are permitted to examine the accused in JC. They are also authorized to record statements if made." However, the Show Cause Notice does not refer to any attempt made by DRI to interrogate and/or record statement of the accused/ Appellants at judicial custody after the Order dated 14.03.2017 when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat a retracted confession is used as a corroborative piece of evidence to record a finding of guilt but it is another thing to say that such a finding is arrived at only on the basis of such confession although retracted at a later stage. 36. Appellant is said to have been arrested on 27-10-1994; he was produced before the learned Chief Metropolitan Magistrate on 28-10-1994. He retracted his confession and categorically stated the manner in which such confession was purported to have been obtained. According to him, he had no connection with any alleged import transactions, opening of bank accounts, or floating of company by name of M/s. Sun Enterprises, export control, Bill of Entry and other documents or alleged remittances. He stated that confessions were not only untrue but also involuntary. 37. The allegation that he was detained in the Office of Enforcement Department for two days and two nights had not been refuted. No attempt has been made to controvert the statements made by appellant in his application filed on 28-10-1994 before the learned Chief Metropolitan Magistrate. Furthermore, the Tribunal as also the Authorities misdirected themselves in law insofar as they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty simply ignored the same while arriving at his findings with respect to the statements dated 07.03.2017 of the Appellants and proceeded on the basis of such statements as being voluntary in nature and has mis-directed himself by arriving at a finding at para 4.17(xii) of Order-in-Original that the retraction was in reply to Show Cause Notice and hence, such finding is not maintainable in law. The Hon'ble High Court at Allahabad in the case of Commr. of Customs (Preventive), Lucknow v. Shakil Ahmed Khan [2019 (366) E.L.T. 634 (All.)] has held that - "22. In the present case the order passed under Sections 111 and 112 of the Customs Act by the Commissioner Customs (P), Lucknow on 5-8-2014 and the said order records the entire proceedings conducted during the investigation. A perusal of the aforesaid order would indicate that no efforts were made by the appellants to prove that the confessional statements were made voluntarily. No Customs Officer or any independent witness was examined by the said authority which could prove that the said confessional statement was taken voluntarily and could be used as a substantial piece of evidence against the respondents. 23. That the auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 59/1964 : (1964) 6 SCR 623 at 631-633 wherein it was observed : "As we have already indicated, this question has been considered on several occasions by judicial decisions and it has been consistently held that a confession cannot be treated as evidence which is substantive evidence against a co-accused person. In dealing with a criminal case where the prosecution relies upon the confession of one accused person against another accused person, the proper approach to adopt is to consider the other evidence against such an accused person, and if the said evidence appears to be satisfactory and the court is inclined to hold that the said evidence may sustain the charge framed against the said accused person, the court turns to the confession with a view to assure itself that the conclusion which it is inclined to draw from the other evidence is right. As was observed by Sir Lawrence Jenkins in Emperor v. Lalit Mohan Chuckerburty a confession can only be used to "lend assurance to other evidence against a co-accused". In re Periyaswami Moopan Reilly. J., observed that the provision of Section 30 goes not further than this : "where there is evidence against the co-accused sufficient, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en cited with approval." 25. By the law laid down above it is clear that a confessional statement of a co-accused cannot by itself be taken as a substantive piece of evidence against another co-accused and can at best be used or utilized in order to lend assurance to the Court. In the absence of any substantive evidence it would be inappropriate to base the conviction of the appellant purely on the statements of co-accused. 26. In the present case the CESTAT has rightly concluded that a confiscation and penalty order was passed solely on the retracted statement of the appellant Mr. Shakil Ahmad Khan and father of the appellant Mr. Mridul Agarwal and further these persons were not examined in the adjudication proceedings and therefore, the confiscation, penalty order has been passed only on the basis of such confessional statement is contrary to settled legal position and was clearly illegal, arbitrary and liable to be set-aside, and the judgment of CESTAT is affirmed to that effect. In the present appeal we have given our anxious consideration to the substantial questions formulated by the petitioner and are of the considered opinion that no substantial question of law arises ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the informants but on whose evidence the adjudicating authority places reliance. The adjudicating authority should bear in mind that cross-examination is an effective tool to test the veracity of the witness and the reliability of his evidence. It is further necessary to remember that what is relevant in considering the request for cross-examination is not as to whether the Act or the Rules provide such a right but whether the request is relevant, justified or genuine or was it made just to protract the proceedings or with a view to malign or browbeat the witness or that the defence taken does not justify cross-examination. 16. The High Court of Orissa had an occasion to consider the fact of not allowing cross-examination of the seizing officer. In Ramakrishna Agarwala v. Collector of Customs and Central Excise (1981 E.L.T. page 217) the Division Bench of the Orissa High Court observed "It is not disputed before us by learned Standing Council that the petitioner was emitted to an adequate opportunity of substantiating his stand and we are not prepared to accept the position maintained in the counter affidavit that the opinion of the adjudicating officer was final on the question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to legal procurement and possession of 'gold' by it's owner and it nowhere provides that the 'burden of proof' w.r.t. non-voluntary nature of statement and/or non-recovery of contraband from the possession, is on the noticee/ appellants. 7.10. That it is also admitted position that the first three Appellants were working as Havalders of Customs, Department of Revenue, Ministry of Finance, Government of India on 06.03.2017 when they were apprehended by DRI, Kolkata. Section 155 of the Customs Act, 1962 provides as follows - Section 155. Protection of action taken under the Act.- (1) No suit, prosecution or other legal proceedings shall lie against the Central Government or any officer of the Government or a local authority for anything which is done, or intended to be done in good faith, in pursuance of this Act or the rules or regulations. (2) No proceeding other than a suit shall be commenced against the Central Government or any officer of the Government or a local authority for anything purporting to be done in pursuance of this Act without giving the Central Government or such officer a month's previous notice in writing of the intended proceeding and of the cause th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inst the fourth Appellant, penalty upon him is not imposable. Further, single penalty under both the clauses (a) & (b) of Section 112 of Customs Act, 1962, is erroneous in law in as much as both such clauses operates at separate domain altogether. While clause (a) of Section 112 ibid prescribes penalty for the act of commission and/or omission in illegal import and/or abetment thereto, clause (b) thereof prescribes penalty for knowingly dealing with the illegally imported goods. As such, imposition of single penalty upon the fourth Appellant i.e. Akash Jagdish Issrani by the Adjudicating authority under both clauses (a) and (b) supports the contention on behalf of the said Appellant that the Adjudicating authority was not sure about the alleged role of the said Appellant in the alleged act in want of specific allegations against him in the Show Cause Notice, but mechanically imposed the penalty on him. Such imposition of penalty is liable to be quashed. 8. In view of the above discussions and findings, I set aside the respective penalties as imposed upon the four Appellants herein under Section 112(b) and/or 112(a) & (b) of Customs Act, 1962 under the impugned Order-in-Original as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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