TMI Blog2001 (3) TMI 97X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court, however, by the impugned order came to the conclusion that the initial burden of proving that the goods in question were smuggled, lay on the Department which according to it, was not discharged by the Department. This conclusion of the High Court is obviously based on a misappreciation of the evidence that was already considered by the lower authorities. The High Court, in our opinion, not only erred in reappreciating the evidence already considered by the authorities below and in that process committed a further error of substituting its subjective opinion in the place of the findings of the authorities below. Therefore, we are of the opinion that the finding of the High Court that the concurrent conclusions of the statutory authorities were either not based on evidence or were perverse, is unsustainable. Appeal allowed. - 3077 of 1999 - - - Dated:- 21-3-2001 - S.P. Bharucha, N. Santosh Hegde and Y.K. Sabharwal, JJ. [Judgment per : N. Santosh Hegde, J.]. - The respondent herein was intercepted in the early hours of 22nd October, 1994 by the Circle Inspector of Police, Chalakudy while he was travelling in a car. The police recovered 30 gold biscuits of forei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that the respondent from whose possession the gold was seized was liable for a penalty under Section 112(b) of the Customs Act, 1962 and accordingly while confiscating the gold in question imposed a penally of Rs. 5 lakhs on the respondent. The said Commissioner, however, came to the conclusion that the said Balan was only lending his name in order to make the importation of gold licit, hence he has not committed any offence punishable under Section 112(a) and (b), and held him not liable to any penalty under Section 112 of the Customs Act. 4.The respondent and said Balan both preferred an appeal before the Customs Excise and Gold (Control) Appellate Tribunal, South Zonal Bench at Madras ('the Tribunal') wherein it was contended that since the gold biscuits were seized by the police originally, the provisions of Section 123 of the Customs Act, 1962 cannot be invoked. Therefore, in the absence of any presumption being available in favour of the Department the burden was on the Department to prove that the gold in question was smuggled. It was also contended that in view of the fact that the initial statement of the respondent was taken under duress and coercion, and also in v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts before us, the High Court exercising a power under Article 226/227 of the Constitution of India could not have re-appreciated the evidence on record and come to a different conclusion. According to the appellants, the finding of the High Court that the decision of the authorities impugned before it was either based on no evidence or perverse is wholly unjustified. On behalf of the respondent before us while supporting the judgment of the High Court, it is contended that the authorities below failed to take note of the fact that the original statement of the respondent was in fact obtained under duress and the said statement was rightly retracted once the respondent was out of the clutches of the Customs Officers and, therefore, no reliance could have been placed on the original statement made by the respondent to the Customs Officers. In support of this contention, the counsel for the respondent drew our attention to a noting made by the Magistrate on 24-10-1994 when the respondent was produced before him which reads thus: "The accused is produced before me at 6.30 p.m. He stated that he was threatened while recording statement. But no physical harm was caused to him. No visib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... threat but the Magistrate has recorded that no physical harm was caused to him nor any physical marks of violence were found on his person, and thereafter the said Magistrate remanded him to judicial custody till 30-10-1994. It is also to be noticed that on an inquiry, it was found that the name of P. Thomas given by the respondent was found to be a bogus name and the telephone number of the said Thomas was also a fictitious one inasmuch as the said telephone belonged to the State Bank of Travancore. Therefore, the authorities below rightly came to the conclusion that at the time when he made the statement the respondent was not in a position to explain the circumstances under which he came into possession of the said gold and had obviously put forward a false case. The authorities below have also taken note of the fact that when the respondent moved the bail application, he had in specific terms retracted his statement made earlier but on a consideration of the material on record, they chose to rely on the earlier statement holding his later retraction was an after thought. It is only on 28-10-1994 that one Balan came forward with a claim that he had imported the said gold from Du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the presumption available under Section 123 of the Customs Act, 1962 in view of the fact that the gold in question was seized originally not by the Customs authorities but by the police personnel. From the material available on record, we find that on finding the respondent carrying the gold in question, the police as a matter of fact did not seize the gold but actually produced the respondent with the gold which was in his possession, before the Customs Authorities who in fact on such production, seized the gold. Be that as it may, we notice that the appellate authority itself did not choose to rely upon any presumption available under Section 123 of the Customs Act but proceeded to consider and rely upon the material that was available to establish that on the date of arrest the respondent was in possession of unmarked gold biscuits; in regard to origin of which or importation of which the respondent was either ignorant or was not willing to divulge and remained evasive. The authorities also have taken note of other materials on record to which we have already made reference and which, in our opinion, are sufficient in the circumstances of this case to come to the conclusion ..... X X X X Extracts X X X X X X X X Extracts X X X X
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