1998 (3) TMI 482 - AT - Customs

Issues Involved:
1. Legitimacy of the seized goods as smuggled goods.
2. Involvement of various individuals in the smuggling activities.
3. Validity of retractions made by the accused.
4. Appropriate penalties imposed on the individuals involved.

Issue-wise Detailed Analysis:

1. Legitimacy of the Seized Goods as Smuggled Goods:

The judgment confirms that the seized goods, including 252 F.M. Gold Biscuits, 10 pcs of Gold, Gold ornaments, Silver ornaments, and other miscellaneous goods, were indeed smuggled. The goods were intercepted during a joint operation by Customs and BSF on 29-12-1993. The panchnama and mahazar clearly established that the seized goods were foreign-marked smuggled gold. There was no dispute regarding the goods being foreign-marked and smuggled.

2. Involvement of Various Individuals in the Smuggling Activities:

- Shri Bhoore Khan: The statements recorded under Section 108 of the Customs Act, 1962, from Shri Bhoore Khan revealed that he was apprehended while smuggling the goods from Pakistan. His statements from 31-12-1993, 1-1-1994, and 2-1-1994 confirmed his involvement in the smuggling activities. The penalty of Rs. 50,000/- imposed on him was confirmed as just and proper considering the value of the goods.

- Shri Nihal: The evidence against Shri Nihal was found insufficient. His statements denied any involvement, and there was no direct evidence linking him to the smuggling activities. The statements of other accused did not conclusively implicate him. Therefore, the penalty of Rs. 2 lakhs imposed on him was set aside.

- Shri Achar Khan Rajad: He admitted to being the recipient of the smuggled goods. The carrier, Shri Bhoore Khan, identified him, and his involvement was confirmed. The penalty of Rs. 20,000/- imposed on him was confirmed despite being less than expected.

- Shri Pirana Khan: His own confessional statement admitted his involvement in smuggling activities. He was to receive the gold and had coordinated with his cousin in Pakistan to arrange the gold. The penalty imposed on him was reduced to Rs. 1 lakh from Rs. 2 lakhs.

- Shri Murad and Shri Hayat: Identified by Shri Bhoore Khan as his accomplices, they were involved in smuggling the gold from Pakistan. The penalties of Rs. 50,000/- each imposed on them were confirmed, and no appeals were filed by them.

- Shri Achar (S/o Samabe) and Shri Gulia: There was no direct evidence implicating them in the smuggling activities. The statements against them were not self-implicatory, and the department failed to record their statements. Therefore, the penalties imposed on them were set aside.

3. Validity of Retractions Made by the Accused:

The retractions made by the accused were considered an afterthought and were not supported by any evidence. The retraction by Shri Bhoore Khan after one and a half years was deemed unreliable. The telegram sent by the father of Nihal was not considered a valid retraction. The statements made under Section 108 of the Customs Act, 1962, were held to be correct and reliable.

4. Appropriate Penalties Imposed on the Individuals Involved:

The penalties imposed on the individuals were reviewed based on their involvement and the evidence available. The penalties on Shri Bhoore Khan and Shri Achar Khan Rajad were confirmed. The penalty on Shri Pirana Khan was reduced to Rs. 1 lakh. The penalties on Shri Achar (S/o Samabe), Shri Nihal, and Shri Gulia were set aside due to insufficient evidence.

Conclusion:

The appeals were disposed of with the penalties against Shri Achar (S/o Samabe), Shri Nihal, and Shri Gulia set aside. The penalty against Shri Pirana Khan was reduced to Rs. 1 lakh, while the penalties against Shri Bhoore Khan and Shri Achar Khan Rajad were confirmed. The judgment emphasized the need for thorough investigation to trace the real recipients and smugglers involved in such cases.

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