TMI Blog2023 (10) TMI 387X X X X Extracts X X X X X X X X Extracts X X X X ..... OURT] , it was held that where the confession was not retracted at the earliest opportunity but after the lapse of several months, the circumstance reinforces the conclusion that the confession was voluntary. The appellant's confession statements under Section 108 were recorded on 18/3/2015 and 19/3/2015, whereas the alleged retraction was made on 26/5/2015. There is no explanation for the delay. Coming to the facts of the case, except the bare allegations, there was no material on record to indicate that the customs officials had pressurised or forced the appellant to confess. On the other hand, the records show that the officer who recorded the statements of the appellant explained to him that he was under no obligation to answer any question and warned him that anything he said might be used against him in any court of law/proceedings - The sequence of events as described, statements of the co-accused, recovery of smuggled goods and incriminating documents coupled with circumstantial evidence of the case provide corroboration to the confession statement of the appellant. The evidence on record establishes that the smuggling syndicate coordinated by the appellant misused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Al Hamoud General Trading LLC, Sharjah. The officers of DRI, on a detailed examination of the container on 9/1/2015, found 11,178 kgs of Red Sander logs, having a market value of Rs. 1,90,02,600/- and international grey market value of Rs. 4,47,12,000/- approximately, placed inside plywood boxes. The SIO, DRI, Cochin seized the said 11,178 kgs of Red Sanders, 12 plywood boxes and the container on the reasonable belief that they are liable to confiscation under the provisions of the Customs Act, 1962. After that, confiscation proceedings under Chapter XIV of the Customs Act were initiated. 3. The investigation revealed that M/s. Liberty Marketing, Abdul Razak @ Ashraf, K.P. Sibu, P.Sanoj, A. Shaheer, R. Rajesh @ Renjith, Vineeth Kumar @ Kannan (hereinafter referred to as the co-accused ) and the appellant were involved in the illegal export of Red Sander logs. Their statements under Section 108 of the Customs Act were recorded. A show cause notice was issued to the appellant on 30/6/2015 to show cause why the penalty should not be imposed against him under Sections 114 and 114AA of the Customs Act. The appellant gave a reply denying his involvement and pleading innocence. A pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... um: a. Whether penalty under 114AA of the Customs Act, 1962 can be imposed on appellant when appellant have not made, signed or use any declaration, statement or document pertaining to alleged illegal export when all the activities regarding this export was carried out by the exporter and his Clearing House Agent. b. Whether adjudication authority or appellate authority can impose penalty under stringent provision of Section 114AA of the Customs Act, 1962 casually as done in appellant's case or bound to consider the discussion held while introducing Section 114AA of the Customs Act, 1962 in Lok Sabha on 12/05/05, when said invoked against the appellant. c. Whether adjudication authority or appellate authority is bound to give opportunity for cross-examination sought by the appellant while submitting reply to SCN and whether denial of the same is against natural justice which every judicial, quasi-judicial and administrative agency must follow while taking any decision adversely affecting the rights of a private individual. 7. As stated, the case pertains to the seizure of 11.178 MT wooden logs identified as Red Sanders placed inside 12 plywood boxes from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iscation. 8. According to the appellant, he has no connection whatsoever with the alleged export of Red Sanders. It is contended that in August 2014, one Mr. Ashraf approached him to arrange the export of a container stuffed with plywood for export to UAE and informed that the container would be in packed condition and properly sealed by either Customs or Central Excise officers in accordance with law. Since he did not hold a customs broker license to handle the goods, he introduced Mr. Ashraf to Mr. Sibu, who undertook the export. According to him, after that, he was not involved in the export and did not know about the smuggling of Red Sanders. 9. The statements of the appellant and others were recorded under Section 108 of the Customs Act. The appellant has admitted his involvement in the smuggling of Red Sander logs in his statements recorded on 18/3/2015 and 19/3/2015. He stated that one Mr Ashraf, an associate of Mr. Anilkumar, who was earlier involved in the smuggling of Red Sanders, contacted him and asked him to handle the export of Red Sanders and they met at Hotel Dreams, Vyttila, Ernakulam. After that, he met Mr. Ashraf at Ernakulam three times and later at Bangal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of India { Naresh J. Sukhawani v. Union of India (AIR 1996 SC 522)}. 11. The learned counsel for the appellant vehemently argued that the appellant had retracted the confession on 26/5/2015 and, hence, it has no evidentiary value and cannot be relied upon. According to him, it was because of the torture and threat exercised by the customs officials that the appellant was forced to give the confession statements. We are unable to accept the said submission. Retraction does not always dilute, reduce or wipe out the evidentiary value of a confession statement. In each case, the court will have to examine whether the confession was voluntary and true and whether the retraction was an afterthought. In Smt.Kalawati and Another v. State of H.P. (AIR 1953 SC 131), the Apex Court held that the amount of credibility to be attached to a retracted confession would depend upon the facts and circumstances of each case. In Shankaria v. State of Rajasthan (AIR 1978 SC 1248 ), it was held that where the confession was not retracted at the earliest opportunity but after the lapse of several months, the circumstance reinforces the conclusion that the confession was voluntary. The appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nequivocally held that for proceedings under the Customs Act, the right to compliance to the principles of natural justice does not cover the right to cross-examination of the witnesses. If the cross-examination of the co-accused is permitted, they would be put in a situation where they might be forced to incriminate themselves. 14. The sequence of events as described, statements of the co-accused, recovery of smuggled goods and incriminating documents coupled with circumstantial evidence of the case provide corroboration to the confession statement of the appellant. The evidence on record establishes that the smuggling syndicate coordinated by the appellant misused the IEC of the exporter, M/s. Liberty Marketing to smuggle out Red Sanders, an item prohibited for export. It has also come out in evidence that the appellant ventured into smuggling operation at the behest of Mr. Abdul Razak @Ashraf and received Rs. 35,00,000/- as a reward on two occasions. He then met with Mr. Sibu, who agreed to take care of the logistical and customs clearance part of the operation for a commission of Rs. 5,00,000/-. Moreover, a suitable IE code and exporting firm for the smuggling operation was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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