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TMI Blog1985 (4) TMI 167X X X X Extracts X X X X X X X X Extracts X X X X ..... a small bundle of agarbathi sticks. Shri Parmar was questioned as to the amount of currency he had in his hand bag. Shri Parmar appeared to have told that he had 5000 US dollars. He further appeared to have told that he had 500 Singapore dollars on his person. He also appeared to have taken 500 Singapore dollars from his pant pocket. Thereafter, the officers took him to the office of the I.A.C. and a detailed examination of the baggage was conducted. This examination resulted in the recovery of 72 Saudi Riyal notes of 100 denomination, 60 US dollar notes of one hundred denomination and on searching the person of Parmar the officers recovered 500 Singapore dollars. Thus the officers were able to recover foreign currency equivalent to Indian Rs. 82,010/-. The statement of Shri Parmar was recorded. He implicated the appellant in appeal 741/84, viz. Shri Ishwar Ramchand Gidwani. All the currencies were seized under panchanama. On the same day, the office premises of Shri Gidwani was also searched in the presence of panchas. No incriminating article was found. After ascertaining the residential address of Shri Gidwani the officers proceeded to his residence. They found the premises loc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tody by the learned Magistrate. On 24-9-1983, Shri Parmar addressed a letter to the Chief Metropolitan Magistrate from the prison retracting his statement implicating Shri Gidwani. In the circumstances, according to Shri Kher, the adjudicating authority committed an error in relying on the statement of Shri Parmar which is nothing but a confession of a co-accused and cannot be admitted in evidence except for lending assurance to other evidence available against Shri Gidwani; but then there was no other evidence whatsoever to implicate Shri Gidwani. Shri Kher, therefore, submitted that the personal penalty on Shri Gidwani was imposed without there being any evidence against him and as such it is liable to be set aside. 8. Shri Kher who appeared for Shri Parmar did not contend that there was any illegality in the order passed by the Additional Collector. He, however, submitted that Shri Parmar is a scheduled caste coming from a very poor family and has no sufficient means. Further he was detained under COFEPOSA and also was prosecuted under Section 135 of the Customs Act and before the Magistrate he pleaded guilty and the learned Magistrate recorded a conviction and sentenced him t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ether the order passed by the Additional Collector requires to be interfered with? 12. The parties are not at issued as to the apprehension or Shri Parmar while he was attempting to smuggle out foreign currencies. The bone of contention is that the appellant Shri Gidwani is in no way concerned with the attempted smuggling of the foreign currency. As had been analysed by Shri Kher the evidence against Shri Gidwani consists of the following: (i) statement of Shri Parmar dated 22-9-1983. (ii) statement of Shri Ashok Bajaj dated 10-10-1983. (iii) alleged abscondance of Shri Gidwani during the relevant time. 13. If the statement of Shri Parmar can be accepted, then no exception can be taken to the finding of the Additional Collector. The question for consideration is whether the statement of Shri Parmar could be relied upon to impose a personal penalty on Shri Gidwani. Though there is considerable force in the contention of Shri Pattekar that Parmar had made the statement immediately after he was stopped, there was no reason for him to falsely implicate Shri Gidwani, in my opinion it is hazardous to rely solely on the uncorroborated statement of Shri Parmar which he had subseq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... siness premises of Shri Gidwani. He was not found there. They proceeded to his residential premises, which was found locked. Thus, on 22-9-1983 Shri Gidwani was not available. When Gidwani sent a medical certificate along with his reply, the Customs was required to verify the correctness of the certificate. Further, according to Shri Parmar, on his earlier trips he had brought certain foreign goods from Singapore for Shri Gidwani. From the fourth trip he returned to India on 6-8-1983 and at that time also he had brought some foreign goods including ready-made garments. On 22-9-1983 Shri Gidwani s shop was searched and according to Customs no incriminating article was found. If Parmar had brought goods for Shri Gidwani atleast a few items would have been found in the shop. Shri Parmar is admittedly a man without any means. The possibility of mentioning the name of Shri Gidwani who was his employer immediately when he was caught cannot be altogether ruled out. In any case, within two days after he made the statement he retracted that part of the statement by which he implicated Shri Gidwani. That retraction was made while he was in judicial custody. It is not the case of the departme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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