1985 (2) TMI 168 - AT - Customs

Issues Involved:
1. Confiscation of feature film reels under Section 113 of the Customs Act, 1962.
2. Alleged involvement of the appellant in the attempted export of the film.
3. Evaluation of evidence and cross-examination.
4. Application of principles of Criminal Jurisprudence and Evidence Act.
5. Consideration of statements made under Section 108 of the Customs Act.
6. Role and credibility of co-accused and accomplice statements.

Detailed Analysis:

1. Confiscation of Feature Film Reels under Section 113 of the Customs Act, 1962:
The officers of Air Customs at the International Airport, Bombay, detained and examined two suitcases on 27-7-1977, which contained 19 reels of the feature film titled 'Paapi'. The reels were seized under the reasonable belief that they were being smuggled out of India, making them liable to confiscation under Section 113 of the Customs Act, 1962.

2. Alleged Involvement of the Appellant in the Attempted Export of the Film:
The investigation revealed that the film reels were surreptitiously removed from the Western Railway Grant Road Parcel Depot, Bombay, and were to be smuggled out by a passenger named Ismail Mohamed Musabih. The appellant was implicated as having stayed with Musabih, arranged his air ticket, and participated in the attempted export of the film. The Additional Collector adjudged confiscation and imposed a personal penalty of Rs. 25,000/- on the appellant, which was confirmed by the Central Board of Excise and Customs.

3. Evaluation of Evidence and Cross-Examination:
The appellant's counsel argued that the evidence was not properly considered, especially the cross-examination of Shri S.V. Harshe, which allegedly exonerated the appellant. The Additional Collector relied on various pieces of evidence, including statements from Shri Harshe, Shri Himmatbhai Barai, and documents seized from a hotel room, to establish the appellant's involvement. The Tribunal noted that the Additional Collector failed to consider the answers given by Shri Harshe in his cross-examination, which contradicted his earlier statements.

4. Application of Principles of Criminal Jurisprudence and Evidence Act:
The appellant's counsel contended that the authorities ignored fundamental principles of Criminal Jurisprudence and the Evidence Act by relying on uncorroborated statements of co-accused and accomplices. The Tribunal acknowledged that while the proceedings were not strictly governed by the Code of Criminal Procedure or the Evidence Act, the fundamental principles of these provisions and natural justice had to be observed. The Tribunal found no grave error in the application of these principles by the Additional Collector, except for the non-consideration of cross-examination answers.

5. Consideration of Statements Made under Section 108 of the Customs Act:
The Tribunal emphasized that statements made under Section 108 of the Customs Act, which are akin to examination-in-chief, must be considered alongside cross-examination. Shri Harshe's initial statement implicated the appellant, but his cross-examination retracted these claims. The Tribunal noted that the retraction was not accompanied by any suggestion of duress or coercion, and thus, the initial statement retained its probative value.

6. Role and Credibility of Co-Accused and Accomplice Statements:
The appellant's counsel argued that Shri Harshe, being a co-accused or accomplice, required corroboration of his statements. The Tribunal found no show cause notice or penalty against Shri Harshe, thus rejecting the claim that he was an accomplice. Even if considered an accomplice, the Tribunal noted that the Additional Collector's findings were corroborated by circumstantial evidence, making the reliance on Shri Harshe's statement justified.

Conclusion:
The Tribunal concluded that the non-consideration of cross-examination answers did not materially affect the findings of the Additional Collector. The appeal was rejected, upholding the personal penalty imposed on the appellant.

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