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TMI Blog1985 (2) TMI 168X X X X Extracts X X X X X X X X Extracts X X X X ..... ons were interrogated. The investigation disclosed that the film under seizure had been surreptitiously removed from the Western Railway Grant Road Parcel Depot, Bombay. The investigation further disclosed that the film was to be smuggled out by a passenger by name Ismail Mohamed Musabih. The investigation also disclosed that the appellant Shri M.M. Gehi had stayed with that Ismail Mohamed Musabih in a Hotel at Dadar and had arranged for his Air Ticket and further was a party to the attempted export of the film. After the completion of the investigation show cause notices were issued to the appellant and others. After the receipt of the replies the Additional Collector adjudged confiscation and penalty. After consideration of the materials placed before the Additional Collector held that there was enough evidence to establish that the appellant attempted to export the film under seizure. Having regard to his finding he imposed a personal penalty of Rs. 25,000/- on the appellant. Being aggrieved by the said order the appellant preferred an appeal before the Central Board of Excise and Customs. The Board, however, confirmed the order passed by the Additional Collector. As stated earl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it is necessary to refer to the findings of the Additional Collector insofar as it relates to the appellant. The relevant portion reads as under : Shri Gehi had known Chandiramani, Musabih and also Dev Bhatia very well. There is evidence on record that is Shri Harshe s statement, dated 6-7-1977 to show that Gehi was also responsible along with Dev Bhatia and others in the smuggling of the film Geeta Mera Naam which was seized in the month of March, 1977. Further evidence has been brought on record i.e. statement of Shri Harshe, Shri Himmatbhai Barai and supported by the documents seized from the hotel room of Himmatbhai that Shri Moti Meghraj Gehi has been illegally exporting the Indian feature film with the assistance of various persons for Ismail Mohamed Musabih. Shri Gehi had earlier failed in his attempt to smuggle out some films. He had paid Rs. 9,000/- to Shri Himmatbhai Barai. He had various meetings with the Arab Ismail Musabih prior to the seizure of the film Paapi and even went to the extent of getting the Arab s ticket confirmed for his departure on Air India Flight along with the two others. These constitute enough evidence to establish that Shri Gehi was attem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts on which the department relies on to substantiate the allegations to the persons to whom show cause notices were issued. If the persons, against whom show cause notices were issued request for cross-examination of any of the witnesses, then the Adjudicating authority after considering the request offers the witness or witnesses for cross-examination. If once the Adjudicating authority allows cross-examination of any witness then in law the said Adjudicating authority is required to take into consideration the answers or statements made during the cross-examination while considering the allegations or the charges levelled against the persons who are charged with contravention of the provisions of the Act. 9. Shri Siwani is justified in contending that the Additional Collector as well as the Board had totally failed to take into consideration the answers given by Shri Harshe in his cross-examination. 10. Let me more examine as to what extent the orders passed by the authorities below got vitiated by reason of not taking into consideration of the answers given in the cross-examination. In his statement recorded under Section 108 Shri Harshe had narrated the conversation that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or true. There was not even a suggestion that the earlier statement had been obtained by duress or coercion. As has been observed earlier the evidence had to be considered as a whole. Therefore, one cannot totally ignore the statement made under Section 108 particularly when it is not shown that the statement was not voluntary or otherwise tainted or for any other good and sufficient reasons. 13. The Wealth of information given by Shri Harshe at that stage could not have been invented by him. It is significant to note that according to Shri Harshe the appellant told him not only regarding the removal of the film but also that Shri Harshe should intimate others that they should destroy all the evidence in connection with the film. After careful consideration of Shri Harshe s evidence as a whole, I am not inclined to place much reliance on his statement made during cross-examination. It is quite probable that Shri Harshe was won over by the appellant. The statement of Shri Harshe clearly implicates the appellant in the attempted export of the film in question. If that statement could be accepted then the appellant cannot successfully challenge the findings of the Additional Collec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... answers given in the cross-examination. I have already referred to the answers given in the cross-examination and had held that those answers do not in any way affect the findings. Therefore, the complaint of Shri Siwani that the orders are vitiated by not following the fundamental principles of Criminal Jurisprudence and Evidence Act cannot be accepted. 15. The next legal contention of Shri Siwani that Shri Harshe was an accomplice and the evidence of an accomplice is of a very weak nature and it requires material corroborations before it could be made use of against another accused. It is rather difficult to accept the contention of Shri Siwani that Shri Harshe was an accomplice. No show cause notice had been issued to Shri Harshe. No penalty also had been imposed on Shri Harshe. There was no allegation that Shri Harshe was in any way concerned in the attempted export of the film Paapi . Therefore, Shri Siwani was not correct in contending that Shri Harshe was an accomplice. 16. As a matter of fact, it will not be illegal to act upon the uncorroborated evidence of an accomplice but the rule of prudence dictates that it is unsafe to act on the evidence of an accomplice unle ..... X X X X Extracts X X X X X X X X Extracts X X X X
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