1985 (4) TMI 167 - AT - Customs

Summary

Issues Involved: Confiscation of foreign currency, personal penalty on appellants, reliance on retracted statements, and adequacy of evidence.

Issue-wise Detailed Analysis:

1. Confiscation of Foreign Currency:
The officers of the Air Intelligence Unit stopped the appellant, Shri Parmar, on suspicion and found foreign currency in his baggage. The currency included 72 Saudi Riyal notes of 100 denomination, 60 US dollar notes of one hundred denomination, and 500 Singapore dollars, totaling an equivalent of Indian Rs. 82,010/-. The Additional Collector of Customs adjudged the confiscation of the seized currency under Section 114 of the Customs Act.

2. Personal Penalty on Appellants:
The Additional Collector imposed a personal penalty of Rs. 15,000/- each on Shri Parmar and Shri Gidwani. Shri Parmar was directly involved in attempting to smuggle the currency. Shri Gidwani was implicated based on the statement of Shri Parmar and the statement of Shri Ashok Bajaj, which suggested that Parmar was employed by Gidwani and had been selling smuggled goods in his shop.

3. Reliance on Retracted Statements:
Shri Parmar retracted his statement implicating Shri Gidwani while in judicial custody, claiming it was extorted through physical violence and threats. The adjudicating authority relied on Parmar's initial statement and the statement of Shri Bajaj. However, the Tribunal noted that reliance on an uncorroborated accomplice's statement, especially one that has been retracted, is hazardous. The Tribunal emphasized the need for corroboration, either direct or circumstantial, to rely on such statements.

4. Adequacy of Evidence:
The Tribunal found that the evidence against Shri Gidwani was insufficient. The statement of Shri Bajaj did not establish a direct nexus between Gidwani and the smuggling attempt. Additionally, Gidwani provided a medical certificate confirming his hospitalization during the relevant period, which was not contested by the Customs authorities. The Tribunal noted that the absence of any incriminating articles in Gidwani's shop further weakened the case against him. Given these factors, the Tribunal allowed Gidwani's appeal, setting aside the personal penalty and directing a refund if the penalty had been paid.

Separate Judgments Delivered:
The Tribunal delivered a separate judgment for each appellant. For Shri Gidwani, the Tribunal allowed the appeal and set aside the personal penalty. For Shri Parmar, the Tribunal rejected the appeal, upholding the penalty of Rs. 15,000/- due to his involvement in the smuggling attempt and his history of similar offenses.

Conclusion:
The Tribunal's judgment highlights the necessity of corroborative evidence when relying on retracted statements, especially those of accomplices. While the confiscation of the foreign currency was upheld, the personal penalty on Shri Gidwani was set aside due to insufficient evidence, whereas the penalty on Shri Parmar was maintained considering his direct involvement and prior smuggling activities.