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TMI Blog2024 (10) TMI 1356X X X X Extracts X X X X X X X X Extracts X X X X ..... ered 4 (four) packages covered with paper and light brown coloured adhesive tape containing 101(one hundred onej pieces rectangular yellow metal bars of identical size and shape believed to be Primary Gold of foreign origin from a secret cabinet at the base of the car On demand the Sri Bablu Thapa, the driver, Sri Suman Chandra Paul and Sri Bishnu Prasad the other two persons sitting in the said vehicle could not produce any document in support of possession and transportation of the said goods, however, Sri Bablu Thapa and Sri Suman Chandra Paul admitted that the said gold bars were of foreign origin and illegally brought into India and also being taken by them to Guwahati without any document. On being called by the DRI Officers, M/s Jag Mohan Soni, H.B. Road, Fancy Bazar, Guwahati-781001 a Registered Valuer, tested all the recovered yellow metal bars with their instruments and confirmed that these were bars of Primary Gold having the purity ranging from 99.5% to 99.6% collectively weighing 16769.040 grams valued at Rs. 4,49,41,028/- (Rupees four crore forty nine lakh forty one thousand and twenty eight) only in presence of Sri Bablu Thapa, Sri Suman Chandra Paul and Bishnu Prasa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these gold were of foreign origin, he brought the said gold by concealing it in the said vehicle as he was in need of money. At the time of purchasing the said vehicle, he took some loans which he was to repay. First time, when he brought 16 kgs. of gold of the same owner, he earned a lot. Similarly, in this occasion also, he was carrying 101 pieces of gold bars/biscuits of foreign origin but was intercepted due to bad luck. On being asked about the involvement of Sri Suman Paul and Sri Bishnu Prasad Kharel in the instant case, he stated that Sri Suman Paul is the agent of the owner but Sri Bishnu Prasad Kharel is totally innocent. On being asked about the details viz. who, where and when handed over the said gold to him, he stated that one Nepali speaking person Kamal, was the owner of the said gold who owned a Jewellery shop at Khongnangkarak, Imphal. That, on 26.2.2015 at 09.00 Hrs., he took the gold from him and came down to his rented house at Mantripukhuri, Imphal where Sri Suman Paul was waiting. As per the plan, the gold were then secreted in the vehicle and took Sri Bishnu Prasad Kharel on the way while coming. On being asked by the DRI Officers to furnish the details of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be delivered to. Sri Dulal Krishna Paul used to call him in his mobile phone number and accordingly the persons were supposed to come to take delivery of the said goods. That, on last occasion, when he brought the gold to Guwahati, the person who took delivery of the goods called him on his mobile number as soon as he got down from the Bus in Khanapara. That, one vehicle arrived at the spot and took him to ISBT, Guwahati and drop him there and left but before that they took the gold from him. All these activities took place under the direction of Sri Dulal Krishna Paul This time also, he was supposed to deliver the gold in similar manner and after delivery, he would have lelt for Karimganj from ISBT, Guwahatu but the same could not be executed as he was intercepted by the DRI authorities. He further stated that he did not know the persons to whom he delivered the gold in the last occasion. He admitted his guilt and stated that he did such acts for earning money. About the other person barring Bablu Thapa, he stated that he did not know Srn Bishnu Prasad Kharel and never seen him before, but later came to know that he is a relative of Si Bablu Thapa and was coming to Guwahati for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that Sri Suman Paul lied in this regard. That, he, being, a very small businessman did not have the financial capacity to deal with such huge amount of gold. He denied to have known any person by the name of Bablu Thapa. (vii) In the course of follow-up investigation, shop cum residential premises of Kamal Kamal Basnet Prop. of M/s Krishna Jewellery, located at Chingmairong, Khongnang Karak, Imphal were searched on 25.03.2015. In course of search, the officers recovered 4 (four) pieces of primary gold totally weighing 176.30 gms from the jewellery, at Chingmeirong Station Road. At the time of search one Smt Jhuma Basnet w/o Sri Kamal Basnet was in the jewellery shop who claimed to be the proprietor of the said M/s Krishna Jewellery. On demand she could not produce any documents in support of the said gold neither any document supporting the licit procurement, importation of the said yellow metal believed to be primary gold. The officer therefore, seized the said gold valued at Rs. 4,58,380/- (Rupees four lakh fifty eight thousand three hundred eightyj only vide case No. 01/CL/IMP/DRI/IMP/2015 dated 25.3.2015 under Panchnama. The samples of the said gold were sent to the Assam H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said Sri Bablu Thapa with conscious knowledge that these were brought illegally from Myanmar through Moreh, a border township of Manipur which he admitted in his voluntary statement dated 27.02.2015. His statement has corroborated with the statement of said Sri Bablu Thapa and they undertook the journey with the impugned gold secreting the same in the vehicle bearing Regn No MN OIW 7635 and these seized from their possession. It appears that Shri Paul along with Thapa have simply acted as a carrier of the seized gold, behind which Sri Kamal Basnet Sri Dulal Krishna Paul were mastermind who are believed to be the owners of the seized gold brought llegally into India in violation of the provisions of the Customs Act, 1962 read with other allied statutory provisions for the time being force. Shri Suman Chandra Paul happens to be the nephew of said Sri Dulal Krishna Paul who engaged him for transporting the impugned gold. Sri Suman Chandra Paul in his own admission has stated that on previous occasion also they transported 16 kgs. of smuggled gold adopting the same modus operandi and the same vehicle. Therefore, said Sri Suman Chandra Paul appears to be liable for penal action under S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the impugned order. 6. Heard the parties. 7. I find that in this case, the statement of Shri Suman Chandra Paul, one of the Appellants, has been heavily relied upon by the ld. adjudicating authority in the impugned order to impose penalty on both the Appellants. Admittedly, the statement of Shri Suman Chandra Paul was recorded under Section 107 of the Customs Act, 1962 which is not an admissible piece of evidence as held by the Tribunal in the case of Sheo Shankar Jaiswal (supra) wherein it was observed as under: - "3. I have carefully considered the submissions from both the sides and perused the records. The truck loaded with sugar had initially been seized by the police on 8-6-07 and thereafter the same was handed over to the customs. The Department's case that the sugar was going to be smuggled to Nepal based only on the statement of truck driver Sh. Abdul Khaliq recorded on the spot. However, from the Additional Commissioner's order in Para 12 of the order and the Commissioner (Appeals)'s observation, it is seen that the driver's statement had been recorded in the presence of the police officers. In my view on this very ground itself the statement loses i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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