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TMI Blog1987 (12) TMI 182X X X X Extracts X X X X X X X X Extracts X X X X ..... k No. MHS-5179 and three persons by names Ramswaroop Bodhraj Bakshi, Kallu Munneshwar Yadav and Abdul Rashid Tolkar. Cursory examination of the trucks revealed that they were loaded with gunny bags containing textiles of foreign origin. The detailed examination and inventory were made at the Customs House. Truck No. MWU-3765 contained 86 packages containing textiles of foreign and truck No. MHS-5179 had 94 packages of textiles of foreign origin. After recording the statements of the apprehended persons, the trucks and the goods were seized in the reasonable belief that they were liable to confiscation under the Customs Act. 4. The investigation carried out disclosed that the two trucks in question were purchased by the appellant Santokh Singh - one in the name 'of his son Shri Rajbir Singh (appellant in appeal No. C-367/87-Bom) and another in the name of his wife Smt. Lakbir Kaur. 5. After the completion of the investigation show cause notices were issued to the appellants and others as to why the two trucks should not be confiscated and why penalty should not be imposed on them. 6. The Addl. Collector who held the enquiry, after consideration of the replies to the show cause no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntokh Singh are bad in law. (2) The evidence against the appellant Santokh Singh is mainly consisted on co-accused or accomplices. Their evidence is tainted and unworthy of belief. The evidence of the accomplices and co-accused cannot be accepted without independent corroboration. There is no such corroboration. (3) Even the statement of the co-accused are self-contradictory. (4) The witness who implicated the appellant was not the appellant's regular driver. He was a badli driver. Even his statement is not believable because according to him the appellant Santokh Singh gave instruction in the morning whereas the evidence of the other witnesses was that the appellant was approached for the trucks only in the afternoon. (5) The evidence of Kallu the cleaner is contradictory and he had contradicted the statement of Tolkar as well as Fakhrudeen. (6) It is Fakhrudeen and Tolkar who corroborated with each other and carried out the nefarious activites of the carriage of smuggled goods without the knowledge of the appellant. The appellant was only a victim of circumstances. (7) The statement of Tolkar is unbelievable. He had at one stage stated that he did not know Papaji. But then ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation under Section 115(1)(c). The confiscation was under Section 115(2) and the Addl. Collector had allowed redemption which clearly indicates that the order of confiscation was under Section 115(2). Shri Prabhu further submitted that there is no legal bar to rely on the statements or the confessional statements of the accomplices. In that connection he placed reliance on the Kerala High Court judgment reported in 1984 (15) E.L.T. page 129. Shri Prabhu further submitted none of the witnesses excepting the appellant Santokh Singh, had retracted their statement. There was overwhelming evidence to establish the guilt of both the appellants. Shri Prabhu also urged that if the appellants were in no way concerned with the smuggled goods there was no reason for them to run away from the normal place of residence. It is a very strong circumstance that the appellants knew that the vehicle were used for the carriage of contraband goods. 12. In reply, Shri Phulchandani submitted that the statement dated 17-1-1986 was obtained by duress. An application to this effect was filed before the Criminal Court on 21-4-1986. 13. I have carefully considered the submissions made on both the sides and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her truck. He further identified the photograph of the appellant Santokh Singh. 16. Abdul Rashid Tolkar who was apprehended among other things stated that he got acquainted with one Fakhrudeen Shaikh and that Shaikh told him if he joins in the transportation of the contraband goods he would get good amount. He, therefore, accompanied Fakhrudeen. He also stated that together they went to Sardarji known as Papaji and that Sardarji agreed to give two trucks to Shaikh. In other respects, he corroborated the statement of Ram Swaroop. Fakhrudeen in his statement stated that on 12-1-1986 Manilal approached him with the truck and asked to accompany him. Thereafter he went in that truck to Vajreswari Naka where Manilal asked him to wait. He further stated that Manilal returned to Naka at 7.30 hours in the morning loaded with goods and covered with a tarpaulin. 17. Driver Manilal who was apprehended on 16-1-1986 admitted that he was working as driver of truck No. MHS-5179. He further stated that his employer Santokh Singh asked him to take truck MHS-5179 to go with Fakhrudeen to Nalla Sopara to bring contraband goods. He further stated Ram Swaroop was on truck No. MWU-3765. He also stated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... khrudeen to whom the appellant was stated to have hired out the truck. The statement of Fakhrudeen was that he was approached by the driver Manilal. The above apart, in his statement recorded on 16-1-1986 the appellant made an admission that at the time when he hired out the truck he knew that the trucks were being used for the purposes of carriage of smuggled goods. In his subsequent statement dated 17-1-1986 he confirmed his earlier statement. Significantly, the appellant did not retract his statement dated 16-4-1986 but only retracted the statement dated 17-4-1986. Even this retraction was not immediately thereafter. But only after the show cause notice was issued. No credence can be given to such a retraction. There is ample evidence to establish that the appellant Santokh Singh knowingly gave the trucks for the carriage of contraband goods. He was for all purposes the owner of the trucks and in any case in exclusive possession of and had control over the trucks. In the circumstances, the Additional Collector was wholly justified in ordering confiscation of the trucks which were admittedly used for the carriage of the contraband goods and also imposing a personal penalty on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing used for the carriage of smuggled goods. Therefore, the above decision also is distinguishable on facts. The other decision of the South Regional Bench, namely, Rajina Bibi v. Collector of Central Excise & Customs, Madurai - 1986 (25) E.L.T. 358 is also distinguishable on facts. In that case the adjudicating authority found that neither the owner nor the driver nor any of the agent in charge of the vehicle had any knowledge of the conveyance being used as a transport for smuggling of goods under seizure. Therefore, the South Regional Bench held that the order of confiscation of the vehicle under Section 115(2) was bad. But in the instant case, the Addl. Collector's finding was that the appellant Santokh Singh had knowingly gave the trucks for the carriage of contraband goods. 23. The decision of this Bench reported in 1986 (8) ECR 532 also is of not much assistance to the appellant. In that case, this Bench found the statement relied upon by the adjudicating authority was that of an unreliable witness, which was not corroborated by any of the evidence either documentary or oral. In the instant case, there is the confession of the appellant. Further his trusted driver Manilal h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, reject his appeal which was directed against the confiscation of the trucks and imposition of penalty on him. 26. Coming to the appeal of the appellant Rajbir Singh, the Additional Collector gave two reasons to impose penalty of Rs. 1,50,000/- on him. The two reasons given are : (1) In his statement recorded on 17-1-1986 Manilal had stated that he had gone along with Rajbir Singh with the truck to the spot where the contraband goods were loaded in his truck, and (2) That Rajbir Singh disappeared from the scene immediately after the seizure. Shri Mulchandani had contended that in his statement recorded on 16-1-1986 Manilal had not implicated Rajbir Singh. He had further contended that no other witness had implicated Rajbir Singh. He also contended that just because Rajbir Singh had dis-appeared from the date of seizure no adverse inference can be drawn against him. Though the abscondence of Rajbir Singh may not by itself be an incriminating circumstance against him the other evidence that he was present at the spot where the contraband goods were loaded, if believed, would be sufficient to uphold the penalty imposed on him. 27. We have perused the statement of Manilal recorde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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