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TMI Blog1987 (4) TMI 252X X X X Extracts X X X X X X X X Extracts X X X X ..... sraj at Ulhasnagar Camp No. III. Besides the above packages the officers seized two Ambassador cars bearing Nos. MMD 4897 and MMB 7540 found abandoned near the ditch. On inspection of the seized cars some dry grass similar to the dry grass used for concealing 29 packages were found in the luggage boot of both the cars. On enquiry the officers came to know that the Car No. MMD 4897 was registered in the name of one Shri Hussein Kassam Mukadam and the Car No. MMB 7540 was registered in the name of one Shri Abdul Rashid Abdulla. Further enquiries revealed that the registered owners were fictitious persons and transfers had been effected in factious names. On secret information that the appellants Lachlan Sobrajmal Sajnani (for short Lacchu) and Shri Purshottam Gangadas Belani (for short Pishu) were involved in the smuggling of the goods under seizure along with appellant Shamshi, a watch was maintained at Mulund Octroi Naka for the car of Lacchu bearing No. MRX 5016. On 20-11-1977 at about 3.45 hours the officers intercepted the above car which was proceeding towards Bombay. Both Lacchu and Pishu were in the car along with one Shri Ashok Lakhimal Vijirani, brother-in-law of Lacchu. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ipuri on 5.6.77 for the car No. MMD 4897 were found and they were seized. The appellant Shamshi denied his owners to of the car MMD 4897 as well as the truck No. MHT 6667 and further denied his connection with the seized goods. He, however, stated that the two petrol bills related to the petrol purchased by him for a private taxi which had engaged near Pritam Hotel, Dadar. The Addl. Collector of Customs (P), Bombay, who held the adjudication, ordered absolute confiscation of the seized 40 packages of smuggled textiles and the truck No. MHT 6667 as well as the 2 abandoned cars and the car No. MRX 5016 in which Lacchu and Pishu were found travelling at the time of its interception. He imposed a penalty of Rs. 25,000/- on the appellant Shamshi and Rs. 70,000/- each on the appellants Lacchu and Pishu. He further imposed penalty of Rs. 10.000/- on one Shri Ramesh alias Hansraj. Being aggrieved by the order of personal penalty imposed on the 4 persons and confiscation of the car No. MRX 5016, the 3 appellants herein and Ramesh alias Hansraj filed 4 different appeals before the Central Board of Excise and Customs. The Board clubbed all the 4 appeals and passed a common order confirmin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anchnama prepared at the time of seizure did not disclose that any dry grass was found in the boot of the car No. MRX 5016. The authorities below, according to Shri Raichandani, mixed up the facts. It was only in the other two abandoned car, dry grass were found and not in the car MRX 5016. As regards the paper containing certain accounts, Shri Raichandani urged that no efforts were made to co-relate the said accounts with the seized goods. In any case, that piece of evidence is insufficient to order confiscation of the car. In order to confiscate the car, there should be positive evidence that the car was used in the carriage of smuggled goods. But such an evidence is lacking. 3. Shri Parikh appearing for the appellant Shamshi made several submissions. They may be summarised as under: (a) There is no legal evidence to establish that the appellant Shamshi has anything to do with the textile packages seized in the case. (b) The statements of Lacchuand Pishu relied on by the Department are unsigned and they cannot be considered as voluntary. (c) In his statement Lacchu did not implicate the appellant Shamshi. In his subsequent statement Lacchu did not implicate the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iver and cleaner as well as the Mechanic ought not to have been relied upon, firstly, even according to their statements, the driver and copperier were in service after sometime in December 1977 and January 1978 and the alleged incident was much earlier and there was no evidence as to who was the owner of the vehicles In question at the time of alleged incident. Secondly, that the said 3 persons have not identified the appellant. No efforts were made by the customs authorities to get the appellant identified by those persons even though the appellant has been visiting the custom house for many days. The Identification of photograph is no Identification at all and identification parade ought to have been held. There is no evidential value for the identification through photographs. The Additional Collector and the Board ought to have accepted the explanation of the appellant regarding the two petrol bills and particularly when these bills relate to the month of June 1977, whereas the seizure was in November 1977. The burden of establishing that the truck as well as the two cars belonged to the appellant is entirely on the Department and the Department had failed to establish the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The points that arise for our consideration are : (i) Whether the facts and circumstances established in the case did not justify imposition of penalties on the 3 appellants; and (ii) Whether the confiscation of the car bearing No. MRX 5016 was not illegal. Point No. (i). - None of the appellants disputed the seizure of 9 packages containing foreign textiles from an uninhabitated dilapidated building at Ulhasnagar. Similarly, none of them disputed the seizure of another 29 packages found hidden in a ditch covered with dry grass and thorny shrub. Further, the seizure of 2 more packages from a room was also not challenged. None of the appellants contended that the seized packages did not contain textiles of foreign origin. Again the appellants did not dispute that the 2 Ambassador cars, one bearing No. MMD 4897, another bearing No. MMX 5016 were found abandoned near the place wherefrom 29 packages containing foreign textiles were seized. They also did not dispute that the dry grass were found in the luggage boots and seats of the two cars. Since the appellants did not challenge the confiscation of the said two cars, the Department s case that those cars were used in the carriag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ken are irreconcilable. If the appellant has nothing to do with the seized vehicles, it was not at all necessary for him to contend that the vehicles were not used for the carriage of the contraband goods. 8. In the reply to the show cause notice, the appellant Shamshi did not contend that Lacehu and Pishu are not known to him or that they were not acquainted with each other. The contention taken was that they stand as co-accused and, therefore, their statements cannot be used against him. The further contention was that since their statements are hot signed, they cannot be considered as statements which could be made use of. So far as Appa Shankar Gaikwad, Prakash Mahadeo Shinde and Manekji Laiji Soni are concerned, the appellant Shamshi in his reply to the show cause notice, stated that he does not know them. He further contended that his identification by photographs by those persons are not trustworthy. The appellant Shamshi, ho doubt, in his reply to show cause notice, sought cross-examination of all the officers as well as Lacchu and Pishu, Appa Shankar Gaikwad, Manekji Laiji Soni and another. In his reply to the show cause notice, the appellant Shamshi nowhere contended th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further stated that he had fixed Hans to arrange the storage of those goods. He also stated that Pishu had to do the distribution of goods and collect money and pay to Shamshi. For this pact of the work of Pishu, he was responsible. It was also stated by him that It was previously decided that he would be paid Rs. 25/- per Boja (package). He further stated that the piece of paper which was found underneath the seat contains the writing of Pishu and it gives the details of the goods. It relates to 21 packages. Pishu while corroborating the statement of Lacchu regarding the interception of the car, inter alia, stated that on 12th or 13th November Lacchu met him at Chembur Road and told that goods had come and whether he was interested in purchasing. He expressed his willingness and it was decided both of them will go to Ulhasnagar on 13-11-1977 and meet Hans and on 13-11-1977 they met Hans who was introduced to him by Lacchu. Hans read out the particulars of the goods available with him and he wrote down the particulars in a piece of paper and that was the paper which was found In Lacchu s car. Pishu, however, did not implicate Shamshi. 10. The statement of Hans was also recorded. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... If the statements of Lacchu and the other 3 persons, viz., the driver of the truck, the motor mechanic, the commission agent and the cleaner are to be accepted, then the nexus between the appellant Shamshi and the seized goods fairly gets established. In his reply to the show cause notice, the appellant had taken a specific contention that he does not know the driver, the cleaner, the commission agent and the mechanic. The Additional Collector, however, had accepted their statements. Since the appellant had not been supplied with the copies of the photographs Identified by those four persons and those four persons had not identified the appellant Shamshi in person, we may discard their evidence. But then Lacchu had squarely Implicated the appellant. His statement was accepted by the Additional Collector as well as by the Board. The contention of Shri Parikh was that the statement dated 20.11.77 wherein Lacchu had implicated the appellant is no statement at all because It was not signed. His further contention was that Lacchu stands as an accomplice Or co-accused. Therefore, his statement requires independent corroboration and such an independent corroboration is lacking. His furth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te that the statement of Lacchu dated 20.11.77 cannot be accepted on that ground is not tenable in law. 14. The further contention of the learned advocate that Lacchu stands as a co-accused or accomplice and, therefore, his statement requires Independent corroboration is also cannot be accepted. The provisions of the Evidence Adas well as the provisions of Criminal Procedure Code in terms are not applicable to adjudication proceedings. Just because two or more persons were together proceeded with, they do not stand as co-accused. Even if we are to consider the said persons as accomplices, neither the Evidence Act nor any other law prohibits accepting of the uncorroborated testimony of and complice. The prudence, however, demands corroboration of the evidence of an accomplice. The adjudicating authority as well as the Board relied on the evidence of Lacchu. The corroboration contemplated under law is no doubt independent corroboration but not necessarily of direct evidence, to corroboration could be by circumstantial evidence also. The statement of Lacchu was that the appellant Shamshi brought certain packages in a truck. That truck was later driven by the driver of Hans to Ulhasn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isfied as to the truthfulness of Lacchu s statement which squarely and fairy implicates the appellant Shamshi and also to certain extent corroborated with the circumstantial evidence, the Additional Collector and the Board, In our opinion, were justified in placing reliance on the statement of Lacchu. We, therefore, reject the contention of Shri Parikh that Lacchu s statement cannot be made use of against the appellant Shamshi. 17. The only other aspect that remained for consideration is that the appellant Shamshi was not allowed cross-examination of Lacchu. The Additional Collector had given certain reasons for not allowing cross-examination. We are not impressed by those reasons. But then merely because Lacchu was not tendered for cross-examination, his statement would not become inadmissible or will have no probative value. If the contention of the learned advocate is to be accepted, Lacchu would stand as a co-accused. If that be so, adjudicating authority cannot compel Lacchu to subject himself to cross-examination by another co-accused. If in the circumstances Lacchu had not been tendered for cross-examination, no grievance can be made thereof. It is significant to note that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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