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TMI Blog2003 (12) TMI 248X X X X Extracts X X X X X X X X Extracts X X X X ..... usted for effecting the illegal act, who all actively assisted and abetted the attempted etc. From the Order-in-Original or from the case records, a clear picture of the case is not emerging. The person occupied the seat No. in question (Seat No. C-21) as shown in the baggage tag) was not interrogated. In Para 50(d) of the Order-in-Original, it is stated that Shri Saidalvai (who was imposed with a penalty of Rs. 1,00,000/-) was not apprehended and absconding. Similarly, the appellant was also not taken into custody or interrogated. In these circumstances, the argument of the appellant is fully maintainable before law. (ii) It is seen that a vital document viz., the computer print out showing the telephone numbers called by Sitaram Naik from a private hospital where he was admitted was vehemently contested by the appellant. The appellant averred that the document is a concocted one not verified the entries with Telecom Department, especially the calls being trunk calls. The original authority observed that the department's case on Shri Ali Mohammed is mainly based on the statement of S/Shri J. Sitaram Naik and P. Abdul Majeed and the Teleph ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orating the validity of the computer printout the relied upon document in the finding of original authority. Hence, I may be seen that little relevance is placed on the said document and non-supply of the same, ipso facto, does not vitiate the adjudication proceedings. And thereafter he concluded that the impugned Order-in-Original was running into 29 pages with unnecessary transcriptions of the notice and replies thereof, which did not appear to serve any meaningful purpose, since contradictions on the point of which the original authority drives at are bound to creep in such lengthy orders. He observed that allegations lacks and averments built upon feeble grounds levelled by the investigating officers would make them lethargic and the officers refrain from making foolpoof investigation reports. Therefore a penalty of Rs. 5 lakhs under Section 114 of the Customs Act, 1962 imposed on the respondents herein was ordered to be set aside. 2.Revenue has taken the grounds :- (i) The Commissioner's findings of missing links in this case are not called for. In view of the statements of one Shri J. Sitaram Naik, Senior loader of Indian Air ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by passenger on seat 21C. Since there was no passenger manifest by the name of Moideenkutty, Othukkungal, Mancherry, Malappuram, as per the name and address found on the briefcase are facts with the Commissioner (Appeals) did not appreciate. (v) As regards the questioning of the computer print out of the telephone calls made by Shri Sitaram Naik, from the statement of Shri Sitaram Naik it could be clear that he had admitted having made calls to Shri Ali Mohammed (respondents herein on Valluvambram No. 2094) on 7-8-95 and 10-8-95 from Baby Memorial Hospital where Naik was hospitalized during that period, which is corroborated from the telephone calls print out maintained by the hospitals and statements from the hospital employees. Merely because the respondents had come up with an alibi that he had not in India during that period and whether he was available in the phone was only a second question, the familiarity of Naik was established. (vi) The Advocate of the respondents had submitted that Ali Mohammed was out of India from 27-7-95 to 14-8-95. On verification of the investigation filed it would be s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... much before the alleged conspiracy to smuggle out foreign exchange was hatched between Ali Mohammed, S. Sheriff, a bearded man and J. Sitaram Naik. The police complaint made against the Customs officers may not lead to a conclusive finding that the respondent herein Ali Mohammed has been dragged out of possible departmental bias/malice. However, the police complaint do exhibits that there was a reason to believe that the Customs officers and Ali Mohammed and his wife are not at best of terms for reasons known to them. In this view it is imperative that material brought on record to implicate Ali Mohammed should be unquestionable and should be making out a water tight case. (b) Ali Mohammed has been penalized, based only on the statements of co-accused one J. Sitaram Naik, Senior loader at Calicut Airport who vide his statement on record is admittedly a drunkard and was in deep debts. The statement of Shri J. Sitaram Naik is therefore carefully perused and a perusal reveals the followings :- (i) "He took me to the main road and there was a light green ambassador car waiting there, I saw. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tself I went Kondotty. Sherief whom I had met at Ali Mohammed's residence who was waiting for me in front of the Bombay restaurant there along with Saidalvai at around 8 P.M. as planned. They showed me an ash coloured brief case on which "sigma" sticker was pasted. They told me that they would be sending the consignment in such brief case....... (v) .......After three days I met Ali Mohammed at his residence at Valluvambrom and told him that I require some more time to carry out the operation properly. Due to low back pain I was admitted in Baby Memorial Hospital on 20-7-95 far about 5 days and on 4-8-95 for 7 days. During this period occasionally I used to contact Ali Mohammed over phone....... (vi) .......Therefore, I contacted Ali Mohammed on 7-8-95 and 10-8-95 for financial assistance and assuring him that I would be helping him for his operation of sending the foreign currency illegal....... (vii) .......That day evening itself I went to Kondotty and handed over the same to Sherief in the presence of Saidalvai......... (viii) .......That ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to his house. When P. Saidalvai his close friend never invited him home since Naik does not know his house and location. A Kingpin smuggler will like to keep his identity, movements and locations secret, Naiks version do not inspire confidence for accepting the presence of Ali Mohammed. (ii) As regards the implications at Sl. Nos. (v) and (vi), Ali Mohammed's passport is an alibi to disprove the entire story brought on record by the Revenue. How Sitaram Naik could have contacted Ali Mohammed on 7-8-95 and 10-8-95 for financial assistance assuring him that he would be helping Ali Mohammed in the operation of sending foreign currency illegally to India when Ali Mohammed was not in India as per the passport details placed on record by him. From the grounds taken by the Revenue, it appears that inquiries on this alibi of Ali Mohammed not in India during the relevant period were got made. Both the lower authorities declining with this matter appear to be convinced that Ali Mohammed's presence and availability on the dates as alleged on telephone number at Valluvambrom could not be established. The alibi is so strong that Ali Mohammed involveme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taram Naik have been retracted, they cannot be accepted by any prudent person especially when the respondent have raised a case of animus by the departmental officers. 4.There are many points in the statements of Sitaram Naik which could have been corroborated e.g. white car number of Saidalvai could have been got ascertained the same could have been intercepted and located the alleged green ambassador car of Ali Mohammed could also be located and intercepted. No investigation to these effect appear to have been done. The only corroboration is by the statement of one Abdul Rasheed an employee of Cool Bar at Kondotty. This statement dated 5-10-95 has been, admitted as made out in the ground being mistakenly referred. The grounds as filed by the Revenue al Sl. No. (iv) admit that there is a lapse of having not mentioned this statement as a relied upon document in the show cause notice. If a statement has been recorded and the department wants it to be relied upon as a crucial piece of corroborative evidence, then non-mention of the same in relied upon documents would be more than an innocent mistake or lapse. Care and diligence was required on the part of investigators. In any case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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