TMI Blog2001 (1) TMI 98X X X X Extracts X X X X X X X X Extracts X X X X ..... the licit nature of the goods and after show cause notice, the Collector of Central Excise and Customs, Madurai, who is the assessing authority passed an order confiscating the goods and also imposed a penalty of Rs. 2500/- to the appellant and Rs. 2500/- to A.C.M. Zubair. 2.On appeal to the Tribunal, the order was modified and the appellant was permitted to redeem the stones on payment of Rs. 25,000/- and also reduced the penalty from Rs. 2500/- to Rs. 1000/-. The petitioner applied to the Tribunal to refer the following questions to the High Court. The Tribunal, by a majority has made the reference. 3.The questions referred are :- Whether in the facts and circumstances of the case, reliance can be placed on the statement of the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ken into consideration and the same is inadmissible. Learned Counsel for the appellant also relied upon the judgment reported in Nathu v. State of U.P. (AIR 1956 SC 56) wherein it was observed - "It appears to us that the prolonged custody immediately preceding the making of the confession is sufficient; unless it is properly explained to stamp exhibit p.15, as involuntary. P.W. 33 made no attempt to explain this unusual circumstance. It is true that with reference to this matter the appellant made various suggestions in the cross-examination of P.W. 33, such as that he was given bhang and liquor, or shown pictures, or promised to be made an approver, and they have been rejected and rightly as unfounded." 5.The case of Roshan Beevi and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been alleged in the retracted statement of 25-1-1985, in all details, are not true." 7.Further reliance is also made in the case of State of Andhra Pradesh v. Gangula Satya Murthy [1997 SCC (CRI.) 325] wherein in paragraph 19, the Apex Court held :- "It is true any confession made to a police officer is inadmissible under Section 25 of the Act and that ban is further stretched through Section 26 to the confession made to any other person also if the confessor was then in police custody. Such custody need not necessarily be post-arrest custody. The word 'custody' used in Section 26 is to be understood in a pragmatic sense. If any accused is within the keen of surveillance of the police during which his movements are restricted then it ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... argument of the appellant that his statement is made inadmissible has got to be rejected as the retraction and reply notice were belated and an after thought and there is no truth in the said statement. 9.The learned Advocate for the appellant next submitted that the stones seized from the appellant are not smuggled goods and there is no evidence to establish the same. It is further submitted that these goods are permissible goods to be imported and that therefore there can be no presumption on the part of the department to hold that these goods are smuggled goods and the burden is upon the department to show that these goods are smuggled goods. 10.Learned Advocate for the appellant has further submitted that the department has failed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y to the show cause notice had stated - "My client submits that the documents available on record do not also disclose that the stones in question are smuggled one. The goods are not notified goods under the Act and as stated supra, my client has come into possession of the same in his regular business transactions". But, however, he also does not claim ownership to the goods seized and thereby making a dual stand of his possession of the goods seized. 12.Considering the issue in the light of the facts and events set forth above, the appellant has not made out a case that the statement given by him was extracted under threat, while he was in custody and as such, the statement given by him and the confession made thereon are voluntary ..... X X X X Extracts X X X X X X X X Extracts X X X X
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