2002 (10) TMI 462 - AT - Customs

Evidence - Statement of co-accused - Search and seizure - Smuggling - Proof - Prosecution - Penalty - Quantum of

Issues Involved:
1. Legality of the penalties imposed under Section 114(i) of the Customs Act on the appellants.
2. Admissibility and reliability of the confessional statements.
3. Corroborative evidence supporting the charges.
4. Validity of the seizure and the classification of the goods as antiques.
5. Procedural fairness and due process in the investigation and adjudication.

Detailed Analysis:

1. Legality of the Penalties Imposed Under Section 114(i) of the Customs Act:
The appeals challenge the penalties of Rs. 50,00,000/- on appellant No. 1 and Rs. 25,00,000/- on appellant No. 2, imposed by the Commissioner of Customs under Section 114(i) of the Customs Act. The appellants contested the correctness of the show cause notice and denied their involvement in the attempted export of seized antiques.

2. Admissibility and Reliability of the Confessional Statements:
The appellant Sharad Dugar retracted his confessional statement, claiming it was obtained under duress and torture. Medical evidence corroborated his claim, showing injuries sustained while in custody. The Tribunal noted that the confessional statement was inadmissible as it was obtained under coercion and lacked corroboration from any other source. Similarly, Rameshwar Mittal's statement, implicating Sharad Dugar, was retracted and not subjected to cross-examination, rendering it legally invalid.

3. Corroborative Evidence Supporting the Charges:
The Tribunal found no corroborative evidence supporting the retracted statements. No antiques or incriminating documents were recovered from Sharad Dugar's residence. The testimony of the investigating officer, Mr. Bhattacharya, and the panchnama prepared on 29-1-93 were found unreliable due to inconsistencies and lack of corroboration. The Tribunal emphasized that the confessional statement of a co-accused alone is insufficient to prove the case without independent corroboration.

4. Validity of the Seizure and the Classification of the Goods as Antiques:
The seized goods were classified as antiques by an Expert Advisory Committee from the Archaeological Survey of India. The Tribunal upheld this classification, rejecting the appellant Girish Dhawan's contention that the goods did not fall within the definition of 'antiques' under the Antiquities and Art Treasures Act, 1972. The Tribunal also rejected the argument that the original shipping bill was not produced, as the appellant had admitted to filing it with a false description of the goods.

5. Procedural Fairness and Due Process in the Investigation and Adjudication:
The Tribunal found procedural lapses in the investigation, including the failure to allow cross-examination of Rameshwar Mittal and the inconsistencies in the preparation of the panchnama. The Tribunal also noted that the appellants were discharged in the criminal case on technical grounds, not on merits, and this had no bearing on the customs proceedings.

Conclusion:
The Tribunal set aside the penalty against Sharad Dugar, finding no substantial evidence to support the charges. For Girish Dhawan, the Tribunal upheld the penalty but reduced the amount to Rs. 1,00,000/-, considering the financial hardship and circumstances of the case. The appeals were disposed of accordingly, with the impugned order against Sharad Dugar being set aside and the order against Girish Dhawan being affirmed with a reduced penalty.

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