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TMI Blog1986 (7) TMI 243X X X X Extracts X X X X X X X X Extracts X X X X ..... andigarh. These reference applications are directed against the aforesaid order of this Tribunal. In these application filed under Section 130(1) of the Customs Act, 1962 and Section 82B of the Gold (Control) Act, 1968, the applicant has listed, in para 3 of the applications, the following points, which, according to him, are points of law and has prayed that reference be made to High Court for their determination:- (a) Points raised in para 3 of the Reference Application No. C/Ref. 14/86-NRB. I) Whether the proceedings initiated by the Collector of Customs are void ab initio and nullity in law because the statement allegedly recorded under Section 108 of the Customs Act are not admissible in law, because First Information Report had been registered with regard to the alleged incident being FIR No. 352 dated 14th December, 1980 under Section 308 S. Act, 25 Arms Act, 9.1.78 Opium Act, 61.1.14 Excise Act by Police Station A Division Amritsar. In view of the fact that FIR had been registered, the investigation/enquiry made by the customs Authorities are hit under Section 25 of the Evidence Act and Article 20(3) of the Constitution of India. If these statements are excluded, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mption can be drawn under Section 99 of the Gold (Control) Act. Department having failed to prove that it was a primary gold, the petitioner has denied his connection with the alleged Gold. III) Whether on the admitted facts the Department has been able to prove that there was conscious and exclusive possession of the gold recovered by the police and the petitioner had knowledge and reason to believe that the same was liable to confiscation as required under Section 71 of the Gold (Control) Act. IV) Whether on the facts and the circumstances of the case the petitioner was entitled to the benefit of doubt, when on the same incident the learned Collector had given the benefit of doubt to the other co-noticees Shri Ramesh Kumar and Sardar Mangal Singh. V) Whether the Collector could ignore the statements recorded under Section 108 of the Customs Act, which was relied upon in the show cause notice by the department and could a new case be made out by the Collector which was not even in the show cause notice. VI) whether there was legal evidence to connect the petitioner with the alleged contraband recovered by the police." 2. As these applications have been filed against a co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay be claimed by a person it has to be established that when he made the statement sought to be tendered in evidence against him, he was a person accused of an offence. Normally, a person stands in the character of an accused when a First Information Report is lodged against him in respect of an offence before an officer competent to investigate it, or when a complaint is made relating to the commission of an offence before a Magistrate competent to try or send to another Magistrate for trying the offence. When a Customs Officer arrests a person and informs that person of the grounds of his arrest, which he is bound to do under Article 22(1) of the Constitution of India for the purposes of holding an enquiry into infringement of the provisions of the Sea Customs Act which he has reason to believe has taken place, there is no formal accusation of an offence. In the case of an offence by infringement of the Sea Customs Act and punishable at the trial before a Magistrate there is an accusation when a complaint is lodged by an officer competent in that behalf before the Magistrate. Hence a person against whom an enquiry is made by the Customs Officer under the Sea Customs Act is not a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n ble Supreme Court that the Customs Officer, is, under the Customs Act, 1962, not a police officer within the meaning of Section 25 of the Evidence Act and the statements made before him by a person who is arrested or against whom an enquiry is made are not covered by Section 25 of the Evidence Act. It has further been held by the Supreme Court that any statement under Sections 107 and 108 of the Customs Act by a person against whom an enquiry is made by a Customs Officer is not a statement made by a person accused of an offence. In view of the above, the question of referring point No. (I) of these Reference Applications to the High Court under Section 130(1) of the Customs Act and Section 82B of the Gold (Control) Act does not arise as the legal issue has already been decided by the Hon ble Supreme Court in the above judgment. 10. Point No. (II) of the Reference Applications was not raised by the applicant at any stage of the proceedings, prior to these reference applications. For the first time, he has raised this point in these Reference Applications. The point is also not relevant in the facts and circumstances of the present case. Along with 150 wrist watches and 18.900 Kg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the owner of the seized goods and he was the person concerned in acquiring, keeping, concealing or dealing with the same. The Collector, in the order-in-original, had given detailed reasons for his findings and conclusions. He had also given reasons why he had given benefit of doubt to the other co-noticees while imposing penalty on the applicant. This Tribunal considered the facts and circumstances of the case and examined the evidence on record very carefully and on appreciation of the facts and entire evidence on record, upheld the decision of the Collector. The Tribunal was satisfied about the conscious and exclusive possession of the goods by the applicant. In paragraphs 8, 9 and 10 of the Order No. A-7 and 8/86-NRB dated 9.1.86 the Tribunal discussed the reasons for which the orders of the Collector were upheld. In paragraph 10 of the order dated 9-1-1986, this Tribunal also gave detailed reasons why the penalty on the applicant was justified when the other co-noticees were given benefit of doubt by the Collector. The facts of the present case were distinguished from the facts of the case covered by the judgment of Hon ble Supreme Court reported in AIR-1982-SC-1022, relied ..... 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