1995 (2) TMI 178 - AT - Customs

Summary

Issues Involved:
1. Legality of the seizure of gold granules.
2. Voluntariness and validity of the appellant's inculpatory statement.
3. Mistake of identity and the appellant's alleged travel history.
4. Denial of the right to cross-examine witnesses.
5. Applicability of the principles of natural justice.

Detailed Analysis:

1. Legality of the seizure of gold granules:
The Customs Authorities, acting on prior information, searched the appellant's residence but did not find any contraband gold biscuits. They found two unusually heavy 'TANG' Brand Instant Natural Orange Flavour bottles, which were seized under a Mahazar. Upon dissolving the Tang powder in water at the Customs House, gold granules were discovered and seized under a second Mahazar. The appellant disputed the place of recovery, claiming the bottles were found in an open compound accessible to anyone, not inside his house. The judgment noted that the TANG bottles were not concealed, and multiple persons were present in the house, making it difficult to attribute exclusive possession to the appellant.

2. Voluntariness and validity of the appellant's inculpatory statement:
The appellant's inculpatory statement detailed his travels to Saudi Arabia and the transportation of the TANG bottles with gold granules. However, he later retracted this statement, alleging it was made under threat and coercion. The judgment highlighted that the statement was not recorded immediately after the seizure, raising doubts about its voluntariness. The appellant's retraction before the Additional Chief Judicial Magistrate further questioned the statement's credibility.

3. Mistake of identity and the appellant's alleged travel history:
The appellant argued a mistake of identity, asserting he never traveled abroad, as evidenced by his passport, which showed no record of foreign travel. The air ticket and boarding pass bore a different name, "Rahmani/N.B.," not matching the appellant's name, "Karungadan Abdul Rahman." The judgment found considerable force in the appellant's argument, noting that the passport, a statutory document, did not indicate any travel abroad, thereby contradicting the inculpatory statement. The Department's failure to investigate the passport discrepancy further weakened their case.

4. Denial of the right to cross-examine witnesses:
The appellant requested to cross-examine the Mahazar witnesses to support his claim that the goods were not recovered from his house. The adjudicating authority's refusal to permit this cross-examination was deemed a violation of the principles of natural justice. The judgment emphasized that cross-examination should have been allowed to resolve the primary issue of the seizure's location.

5. Applicability of the principles of natural justice:
The judgment underscored the importance of adhering to the principles of natural justice, especially in penal proceedings. The refusal to allow cross-examination, the delayed recording of the inculpatory statement, and the appellant's immediate retraction before a judicial authority all contributed to the conclusion that the appellant was entitled to the benefit of doubt. The judgment referenced a Divisional Bench ruling that retracted statements without corroboration cannot solely establish guilt.

Conclusion:
The judgment concluded that the appellant could not be held in exclusive conscious possession of the gold granules, given the multiple occupants in the house and the lack of concealment. The inculpatory statement's delayed recording and subsequent retraction further weakened the Department's case. Therefore, while upholding the absolute confiscation of the gold, the judgment set aside the penalty imposed on the appellant, allowing the appeal based on the benefit of doubt.