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TMI Blog1986 (12) TMI 207X X X X Extracts X X X X X X X X Extracts X X X X ..... hose persons who had anchored the boat. Thereafter they heard firing and they also resorted to firing. The persons who had carried the jackets escaped taking advantage of the darkness. 3. During the investigation, it was found out that a boy of a village Tadgam had received a jacket containing gold lagdies and had handed over that jacket to his father. Kalan Patel sometime in the last week of May, 1985. Mohan Kalan Patel was the sarpanch of that village and he was found missing and he could be located only on 12.6.85 at Bulsar. On interrogation, he admitted the receipt of gold jacket. He handed over 38 gold lagdies to the Customs Officer, Shri M.D. Shah and kept two gold lagdies with him. The Customs Officer did not, however, draw any panchanama. On the other hand, the Supdt. Shri Shah distributed one gold lagdy of ten tolas to the sepoys who had accompanied him. Further he had also distributed two gold lagdies to Inspector of Customs Maroli and one gold lagdy to another sepoy of Maroli. In the follow-up action, the gold lagdies distributed to those persons were recovered. 4. During the course of the investigation, the statement of one Shri Budhia Katia aged about 10 years was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Addl. Collector, who held the enquiry besides ordering absolute confiscation of gold lagdies and Indian currency, also ordered absolute confiscation of Matador bearing registration No. GRD 9003 and two trucks bearing registration No. NHT 552 and GTO 2917 under Section 115(2) of the Customs Act. In this appeal, Shri S.M. Bhatt, the appellant s learned Advocate, had challenged the order of confiscation of the Matador and two trucks. Shri Bhatt urged that there was not even an iota of evidence to establish that any of the vehicle was used in the carriage of smuggled goods or that they were used as means of transport in the smuggling of the goods. No goods were seized from any of the vehicle. The trucks were lying for legitimate purposes. The trucks were not even seized till the Addl. Collector passed the adjudication order. It was further contended by Shri Bhatt that the trucks and Matador could be ordered to be confiscated if at the time of seizure they were used in the carriage of smuggled goods. The Collector had relied on the statement of an adolescent for coming to the conclusion that the trucks were being used for carrying smuggled goods. But then the adolescent did not s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ircumstances relied upon by the Addl. Collector was that Budhia Katiya and Mohan Kalan identified the Matador. 9. As regards the two trucks, the materials relied upon by the Addl. Collector consists of the statement made by Budhia Katiya. The Addl. Collector had relied on the statement of Budhia Katiya which reads: On being further asked, I have to state that Baba Sheth is a farmer and giving truck on hire. He is also giving truck to smugglers for carrying contraband goods. His trustworthy driver is Magan Dhodi. At present the trucks of Baba Sheth are plying at Hajira. I can identify these trucks. Today the Customs officers were sent with me at Hajira for identification of trucks of Baba Sheth which I have identified. I further clarify that wagan driver is carrying contraband goods in these trucks upto Bombay. I know that removal of contraband goods by these trucks. I know this as the persons from Bombay are coming to Bamnapada and stay in the bunglow of Chandrakant Bavabhai. I and Jania both are managing their food and other things for these persons. When the driver of Baba Sheth safely transports the contraband goods at Bombay and comes back, Baba Sheth gives us money for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Katia did not state that the trucks were used in the smuggling or carriage of the contraband gold. According to the observation made by the Addl. Collector, Budhia Katiya made a statement that the trucks were used for carrying contraband goods. The statement of Budhia Katiya is delightfully vague. He did not describe the contraband goods carried in the truck. He did not mention the period during which the trucks were used for the carriage of contraband goods. According to the order of the Addl. Collector, Budhia Katiya had even retracted his statement. At one part of the Collector s order the age of Budhia Katiya is given as 10 years though at another place his age is given as 18 years. It is certainly unsafe and even hazardous to rely on the uncorroborated statement of such a person to order confiscation of the trucks. Further, no order of confiscation of trucks could be ordered under Section 115(2) on the ground that trucks were previously employed or used for the carriage of smuggled goods. The carriage of smuggled goods should have proximity to the date of seizure or detention of the trucks. In this connection, the provisions contained in Section 115(1) and Section 115(2) may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot have seen Mohan Kalan being tortured or brought to Wadi by the appellant and others. It was urged that on the date he was alleged to have seen Mohan Kalan being brought in a Matador there was a marriage of his sister and brother at a different place and it was likely that he would have been present at the marriage ceremony. The Addl. Collector did not consider whether the defence theory that Budhia Katiya could not have been present could be accepted or not. The Addl. Collector proceeded on the footing that whatever was stated by Budhia Katia was true. The only reason given by the Addl. Collector to accept the statement of Budhia Katiya was that it was not shown that it was not voluntary. A statement may be voluntary. But then the voluntary nature of the statement by itself would not be sufficient to bring home the guilty of a person other than the person who made the statement. In order to bring home the guilt of a third person the statement to be relied upon would not only be voluntary but should be truthful. The Addl. Collector did not examine the truthfulness or otherwise of the statement made by Budhia Katiya. Budhia Katiya was only a domestic servant. As stated earlier at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... direct that Matador be released to the registered owner. Bombay, 9 th September, 1986. Sd/- (K. Gopal Hegde) Member (Judicial) 12. [Per : Shri K.S. Dilipsinhji, M(T)]. - I have given very careful consideration to the proposed order of brother Shri K. Gopal Hegde. While I agree with a major part of his order, I differ with him to a smaller extent and hence this present order. The facts of the case and the arguments of the appellant and the respondent have been set out in brother Hegde s order and hence it is not necessary for me to repeat them here in the interest of brevity. So far as his conclusion in respect of the liability to confiscation of the truck Nos. NHT 552 and GTO 2917 is concerned I am in full agreement with his findings that they are not liable to confiscation. I may further add that the only evidence in this behalf is the statement of Shri Budhia Katiya. Besides his tender age, his statement is rather in the nature of an intelligence against his master Shri Chandrabadan Bavabhai Jadhav than in the nature of an evidence regarding the use of these two trucks for carrying smuggled goods. Shri Budhia Katiya has not given any details which wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tied in a white cloth and kept in a tin box in the house secretly while the remaining 60 bars were tied in a cloth and hidden beneath a rock under a rayan tree near the creek. 38 out of 40 bars of gold kept in the house were recovered by the Supdt. of Central Excise, Sanjan on 25-5-85 from Shri Mohanbhai s house. However, the Supdt. did not draw any panchanama of the seizure, nor recorded his statement. The remaining two bars were kept by him and these were passed on to his brother Lallu. On 26-5-85, Shri Jayantibhai Bavabhai Bhandari, the appellant s brother sent for Shri Mohanbhai and accordingly Shri Mohanbhai went to the garden house of the appellant. He knew the appellant very well as he was visiting Tadgam village for purchase of grass and because the appellant s mother also belonged to the same village Tadgam. At the garden house of the appellant, Shri Mohanbhai was tortured and beaten when he confessed having secreted 60 gold bars at Tadgam coast. On the next day in the night he was taken to the spot where 60 gold bars of gold were secreted after being blindfolded and after his hands being tied. When he reached the spot it was about 2 a.m. in the morning. Shri Mohanbhai lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the smuggled gold, the date and the time of the recovery and the carriage of the smuggled gold. Shri Mohan Kalan Patel has further stuck to his version in the repeated statements dated 18-6-85 and 19-6-85, both of which were recorded under Section 108 of the C.A. He has given a further statement on 20-6-85 and he has been consistent with his version. Apart from these statements Shri Budhia Katiya also identified the Matador which was seized and kept in the office of the Asst. Collector of Customs, Bulsar. Both Shri Budhia Katiya and Mohan Kalan confirmed that the same Matador was used for transporting gold from Tadgam creek to Bhilad. Even though Shri Budhia Katiya is of tender age, he would have known the purpose of the use of the Matador as he was working with a person who was regularly indulging in disposal of smuggled goods. Both Shri Budhia Katiya and Mohan Kalan identified the Matador. The Advocate s contention that Shri Budhia Katiya could not have been present in the garden house of the appellant on 27-5-85 because he had to attend the marriages of his brother and sister on that date is also not acceptable. The time of the marriage and the place are not stated. Besides the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... int: Whether on the facts and in the circumstances of the case, the order of the Additional Collector confiscating the Matador bearing No. GRD 9003 is required to be set aside as held by the Member(J) or required to be confirmed as held by member (Technical). 17. I have heard this matter at Bombay today. The appellant has personally appeared before me with Shri H.D. Nagarkar, Advocate for the hearing. Shri Nagarkar has filed a Vakalatnama duly signed by the appellant, Shri Chandrabadan B. Jadhav. Earlier Shri B.B. Gujral, Advocate, filed a Vakalatnama in the Registry of this Tribunal at New Delhi for appearing and pleading for the appellant in this matter. When this is pointed out by me to the appellant today, he has stated that Shri Gujral, Advocate, was to argue the matter if the hearing was held at New Delhi and that as the hearing is being held at Bombay, Shri Nagarkar will argue the matter for him. Shri Nagarkar has, thereafter, been asked by me to argue the matter. 18. The gists of the arguments of the learned Advocate are as follows: (i) The vehicle in question is not a Matador, but it is a standard tempo bearing registration No. GRD-9003. (ii) There is no evide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts of the statements have been correctly incorporated in the order-in-original and he does not dispute the same. The Addl. Collector, in paragraphs 36 to 38 of the order-in-original, has indicated the contents of the statements of Shri Budhia Katia. These paragraphs do not show that Shri Budhia Katia had stated that contraband gold was transported in the Matador. The contents of the statements of Shri Mohan Kalan Patel have been stated by the Addl. Collector in paragraphs 83 to 93 of the order-in-original. During the hearing the learned Departmental representative has drawn my attention to paragraph 88 of the order-in-original. I find that in the said paragraph it is, inter alia, stated that :- after one hour s journey the vehicle stopped and he got down and his hands and legs were made free; that thereafter the bandages from his eyes was removed; that he tried to see around but he could not see anything first; that thereafter he looked towards sky and stars twinkling and seeing the stars he imagines that it is mid-night 2 O clock; that they were at the Tadgam creek; that when he looked towards the vehicle which was a Matador and he could not recognise the colour due to darknes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stoms unless it was detected at the time of carriage or transport of smuggled goods, is not acceptable. There is no such provision in the aforesaid section to support the contention of the learned Advocate. The learned Advocate pleaded that the vehicle in question was employed elsewhere during the material time, but in reply to a query put by the Bench, he could not show any documentary evidence in support of his contention. As regards Shri Nagarkar s plea that Shri Budhia Katia was away to attend the marriage of his brother and sister at the material time, this plea is also not acceptable to me as no evidence has been adduced by the learned Advocate to show that Shri Budhia Katia actually attended the marriage of his brother and sister during the material time. The contention of the learned Advocate that Shri Mohan Kalan Patel is an accomplice and his uncorroborated statements cannot be relied upon, is also not acceptable. The statements of Shri Mohan Kalan are materially corroborated by the seized gold lagadies and Indian currency and also by the statement of Shri Jayantibhai Bababhai Jadhav recorded under Section 108 of the Customs Act and as indicated in paragraphs 114 to 117 o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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