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TMI Blog1986 (5) TMI 129X X X X Extracts X X X X X X X X Extracts X X X X ..... wning only about a few acres of land leading to hand-to-mouth existence. It was further urged that the deposit of the penalty was dispensed with by the lower appellate authority on the basis of instructions from the Department that the petitioner is not possessed of adequate property. Heard the learned Senior Departmental Representative. Taking into consideration the facts that prior deposit of the penalty was dispensed with by the lower appellate authority and also having regard to the facts that the appeal itself is to be taken up and disposed of to-day, prior deposit of the penalty is dispensed with in the circumstances, pending disposal of the appeal. 2. C. Appeal No. 151/86 and G. Appeal No. 24/86. - Since the above appeals arise out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that no statement from the appellant has been recorded in respect of the alleged offence under the provisions of the Gold (Control) Act, 1968 under Sec. 70 or 83 of the Gold (Control) Act and a statement recorded under the provisions of the Customs Act, 1962 cannot be construed to be a statement under the provisions of the Gold (Control) Act and made use of by the Department against the appellant. It was further urged that the statement recorded from the appellant dated 20-4-1983, though inculpatory in nature, is in the nature of extra-judicial confession which requires corroboration in law. Even if any reliance is placed inasmuch as the same was retracted by the appellant by an affidavit on 13.6.83, it cannot be acted upon witho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss being a goldsmith and in all probability the appellant was carrying the gold with him. Shri Chanderkumar, the learned counsel for the appellant who was present in Court in the pre-lunch session was not available in the post-lunch session and therefore, I did not have the benefit of hearing his reply in answer to the submissions of the learned S.D.R. 5. I have carefully considered the submissions of the parties herein. The important point that arises for determination in this case is with reference to the acceptability of the seizure as the entire case of the Department rests on seizure. The appellant herein has completely disowned not only the gold under seizure but also the seizure of the gold from his very person. The evidence disclo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatement recorded under the provisions of the Customs Act cannot be relied upon in proceedings under the Gold (Control) Act. This ruling has absolutely no application whatsoever to the facts and circumstances of this case. The Supreme Court in the case cited by the learned counsel had to deal with a situation where a judicial magistrate not specifically empowered to record judicial confession under the provisions of Sec. 164 of the Criminal Procedure Code recorded it and the plea of the prosecution that even if the statement recorded by the said judicial officer was not in conformity with Sec. 164 of the Criminal Procedure Code as it then stood, oral evidence could be let in by the prosecution about the confession made by the accused. The H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ier point of time. The conclusion is, therefore, irresistible that this retraction is an afterthought and desperately resorted to by the appellant in a bid to extricate himself from the clutches of law. I should also not in this context that a confessional statement is in the hand of the appellant himself. In the facts and circumstances of this case having gone through the inculpatory statement of the appellant dated 20.4.83, I am convinced that the same is true and voluntary and merits acceptance. The learned counsel elaborately argued on the evidence of the mahazar witnesses in cross-examination to contend that the mahazar does not establish the recovery or seizure of the gold from the appellant. Even if the statement of the mahazar witne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m it, if really the seizing officer had been motivated against the appellant, it passes one s comprehension as to why he should choose to wait for a period of nearly seven long years for the present incident to take place to foist a case against the appellant. The theory of enmity has been merely brought in by the appellant to extricate himself from the clutches of law. The plea of the learned S.D.R. that the appellant s son is in gold business and therefore, the appellant should have transferred the gold is not acceptable since the same is only in the nature of conjuncture or a surmise but, be that as it may, the evidence on record clearly establishes that the contraband gold under seizure was recovered from the possession of the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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