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TMI Blog1988 (5) TMI 227X X X X Extracts X X X X X X X X Extracts X X X X ..... d found that the house was closed and locked. The appellant s son Eliyas brought the key from the house of his brother-in-law s father. Thereafter in the presence of the panchas, the appellant, his son Eliyas and another son, the said premises was searched. The search resulted in the recovery of contraband goods valued at Rs. 17,32,000/-, like wrist watches, writ watch belts/straps, saffron, telephone-cum-radio. Since the appellant as well as his son could not produce any document to evidence the licit import of the said goods, they were seized in the reasonable belief that they were liable to confiscation and a panchnama was drawn up. 3. During the course of the investigation, the statement of Eliyas, the son of the appellant, was recorded on 3.3.1984. He stated, inter alia, that he had proceeded from Bombay to Dubai in the vessel Pirani loaded with the consignment of onion on 18.1.1984. He was the tindel of the vessel. There were 14 crew members. After delivering the consignment at Dubai he loaded 135 tons of wet dates for a party of Bombay. In Dubai a person by name Amad Arba met him and asked him to take about 15 packages to Bombay in his vessel. With a view to earn more pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (p) read with Section 118 and why the vessel should not be confiscated under Section 115(2) and why penalty should not be imposed on them under Section 112 were issued. A show cause notice was also issued to M/s. Elite Trading Co., the consignees of the wet dates carried in the vessel as to why the wet dates should not be confiscated under Section 119. 8. The appellant and his son Eliyas sent a common reply. The crew members Sale Daud also sent a reply. 9. The Collector of Customs, Ahmedabad, after affording personal hearing and after consideration of the materials on record, ordered absolute confiscation of the seized goods under Section 111 (d) and Section 111 (p). He further ordered confiscation of the vessel Pirani under Section 115(2) but allowed redemption on payment of fine of Rs. 1,75,0007- in lieu of confiscation. He also ordered confiscation of wet dates under Section 119 and since the said dates were released on payment of deposit of Rs. 50,000/- he ordered forfeiture of Rs. 50,000/- to Government in lieu of confiscation. He further imposed a penalty of Rs. 5,00,000/- each on the appellant as well as his son Eliyas and Rs. 500/- each on 13 crew members. 10. Excepti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tly on 7.3.1984 had filed an affidavit retracting the statement and explaining the circumstances under which he was forced to sign on blank papers, (8) The nexus between the contraband goods seized from the house at Mota Salaya and the goods stated to have been brought in the vessel Pirani had not been established. Elaborating his contention, Shri Sayed submitted that according to the statements of all the witnesses what was carried in the vessel were wooden boxes and gunny bags but then in the seizure panchnama, out of 14 packages 4 have been described as card board boxes none of the witnesses has stated that any card board box was carried in the vessel Pirani when it sailed from Dubai or that any card board box had been transferred from the vessel to hoda and from hoda to 2 taxies. He further urged that if the card board boxes were hidden beneath the bags of wet dats, the boxes would have crumbled and broken and therefore, the card board boxes seized from the residential premises could not have been the boxes brought in the vessel Pirani. It was also urged by him that according to the evidence of witnesses, the tindel loaded gunny bags and wooden boxes but then not a single woo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... late. On 27.2.1984 Shri Modi with a party of Customs Officers of Bhuj boarded the vessel and the normal Customs formalities were done. The vessel was lying along the jetty. The Collector, having agreed to take on record the said submission of Shri Gajjar, did not take into consideration the said submissions of Shri Gajjar while considering the defence of the appellant and ignoring those facts not only ordered confiscation of the vessel but imposed huge penalty on the appellant who was in no way concerned with the alleged contraband goods. (13) Since the packages were openly removed from the vessel and placed on the jetty and later taken in taxies, the Customs Officers were satisfied that the packages did not contain contraband goods but they were the packages of the crew members. In this connection, Shri Sayed pointed out that none of the crew members stated as to the contents of the packages. (14) Shri Sayed urged that even if the crew members had brought some contraband goods as their baggage neither the vessel could be confiscated nor any penalty could be imposed on the appellant in whose name the vessel stood. (15) Shri Sayed urged significantly after the seizure of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat all the crew members have spoken about the receipt of packages at Dubai and further taking of those packages from the vessel in two taxies. The appellant did not contend that there was any enmity between him and the crew members. It was also urged by Shri Prabhu that the two taxi drivers who are independent witnesses supported the Department s case. Nothing has been alleged against them as to why they should implicate the appellant. 15. It was also contended by Shri Prabhu that there is no improbability in the Department s case. The vessel had not been brought to the jetty but only near about the jetty, and as such hoda had been used for carrying the goods from the vessel to jetty. Shri Prabhu submitted that Mundra is a small port. There was only one officer. The possibility of that officer not noticing the transport of the packages or being gross negligence cannot be ruled out. 16. Shri Prabhu urged that the Collector was justified in ordering confiscation and levying fine of Rs. 1,75,000/- and further justified in imposing a penalty of Rs. 5 lakhs on the appellant because on the admission made by the appellant it is clear that the appellant s another vessel Jamna Prasad h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... packages were loaded in the vessel and they were initially kept in the cabin. A day after it commenced sailing, Eliyas directed his crew members to conceal those packages beneath the wet dates bags behind engine and accordingly, the crew members kept the packages beneath the wet date bags. It was also in the statement of Shri Eliyas during its voyage due to engine trouble he decided to sail to Mundra instead of Bombay and brought the vessel to Navinar Khadi on 26.2.1984. Thereafter he came to Mundra Port in a hoda and informed the Customs and returned back to the vessel. He also stated that the Customs brought the vessel to Mundra Port on the same day. At that time he saw his father present at the Port Jetty. It was then stated by him that after paying homage to Haji Pir and after arriving at Mota Salaya he instructed one of the crew members Daud to bring the concealed packages to Mota Salaya in two taxies which he would be sending. It was also in his statement that he instructed one Fakira, taxi driver to go to Mundra and to bring the packages concealed in the vessel. This was on 1.3.1984. He further stated that Daud and Amad the crew members of the vessel came with the packages i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the entire case had been concocted by the Department. 21. The above apart, the other evidence in this case, which almost remains unchallenged, goes beyond doubt that the statement attributed to Eliyas was his own statement and not concocted by the departmental officers. As regards its voluntary nature suffice to say that except producing a copy of the affidavit filed on 7.3.1984, no other evidence worth the name was produced. Shri Eliyas had given wealth of details. He had given the dates of sailing, the nature of the goods carried in the vessel during its voyage to Dubai and back. He had also stated about the vessel developing engine trouble and therefore it being brought to Mundra Port. He had given the name of the Arab national who had approached him to carry the above packages to Bombay. It is too much to believe that the Customs Officers imagined all these details and put it in the form of a statement and used the signature taken on the blank paper as the statement of Eliyas. According to the defence the entire statement is a concocted one. This should mean even the vessel s journey to Dubai carrying 14 crew members, the vessel s journey back from Dubai, the engine trouble, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s which he had brought and kept initially in the cabin and later directed the crew members to conceal underneath the wet date bags. it was contended that the statements of the crew members are stereotyped and they were also engineered by the Departmental Officers. Both the contentions have no force. It is significant to note that none of the crew members stated in his statement that they knew as to the contents of the packages. If it was a question of concocting, nothing prevented the Customs Officer from putting into the mouth of these witnesses that the packages contained the goods which were seized from the residential premises. 23. Besides the above crew members, the statements of other crew members as well as engine driver and a cook of the vessel were also recorded. The engine driver Shri Hassan Osman did not state that he had seen the tindel bringing 10-12 packages. He also did not state that he had seen the said packages being hidden underneath the wet date bags. Similarly, the crew member Ibrahim Adam Theim also did not state regarding the loading of 10-12 packages. On the other hand, his statement was that he was not knowing that what other goods were loaded in the vess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant and his son Eliyas. The appellant did not contend that the key was not brought by the son Eliyas. The appellant also did not contend that no seizure took place from the house. That part of the statement of Shri Eliyas that after the goods were kept inside the house he locked the house and kept the key in the house of his brother-in-law s father finds corroboration from the fact that during the seizure it was Eliyas who brought the key from the house of his brother-in-law s father. 27. In his statement, Eliyas no doubt stated that he instructed Daud a crew member to bring the concealed packages to Mota Salaya and it was he who instructed the taxi driver to go to Mundra for bringing the packages. Significantly the taxi driver Fakir Mamad and the crew members Daud and Adam Amad did not state that at the instance of Eliyas the concealed packages were brought to Mota Salaya and the driver of the taxi did not state that at the instance of Eliyas that he went to Mundra for bringing the packages. If the Customs were to concoct the statement of Eliyas they would have taken care to see consistency between his statement and the statement of taxi driver and crew member. 28. Fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o bring one more taxi to lift the goods of crew members and hence they had gone to Abhu s house (taxi driver) and together they went to the Mundra Port at about 7 a.m. Talk took place between Hussain (the present appellant) and the other taxi driver Abu regarding the fare. Thereafter Daud and Amad crew members broght about 15 packages in Jetty from the vessel of Hussein Khiju through a small boat and kept the said packages in the taxi. They were told that the packages belonged to crew members. He further stated Hussein Khiju directed him to take the taxi to Mota Salaya. He also stated that crew members Abu and Sale sat in his taxi and Daud sat in the taxi of Abu. They reached Mota Salaya where Eliyas was present who directed them to come to the old house and they unloaded all the packages there. 29. The evidence of this Fakir Amad alias Faka is also corroborated, by the other driver Abhu. He stated that on 1.3.1984 Fakir Amad, taxi driver of Mandvi came to his house and informed that one vessel had come to Mundra Jetty and goods of signed off crew members are to be taken to Mota Salaya. He fixed the fare of Rs. 200/-. Thereafter they went to the Jetty at about 8 a.m. then some me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or constructed in the plot which stood in the name of appellant s wife Fatimabai. The construction of the house itself appears to be a clandestine affair. The panchnama showed that certain of the packages had some wet dates stuck to them. One of the taxi drivers namely, Shri Abhu also stated that on certain of the packages there were dots of wet dates. 33. The transport of the packages from the vessel to the residential premises took place a day earlier to the date of seizure. It was not the case of the appellant or anybody else that goods belonging to anybody else had been stored in the house in question. The son-in-law to whom the house was stated to have been given as dowry did not make any claim to the goods in question. According to the statement of tindel Eliyas, after the packages were kept he locked the house and kept the key in the house of his brother-in-law s father. On the date of seizure he brought the key and the lock was opened from that key. Beside the above, in his statement Tindel Eliyas admitted that goods seized by Customs Officers were the very same goods which he had concealed in the vessel Pirani. 34. It is true that the Customs did not get the gunny bags ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yed also contended that during the adjudication, the adjudicating authority had agreed to the suggestion of Shri R.S. Gajjar who appears for the appellant during the personal hearing to waive the cross-examination of the Customs Inspector Parmar as well as the Customs Inspector Shri M.G. Modi on condition that the following facts should be taken on record : (1) Inspector Parmar, who was in charge of the Departmental vessel based at Mandvi was patrolling the area and noticed vessel m.c. Pirani on or around 26.2.1984 and since the vessel got grounded at the mouth of the Port near Navinar, Eliyas Hussein requested the departmental vessel to tow Pirani upto Mundra. (2) The moment the vessel reached Mundra port on 26.2.1984 night the vessel was boarded by the Inspector of Customs Mr. M.G. Modi and he arranged a guard for the vessel as it was late. On 27.2.1984 Mr. Modi with a party of Customs Officers of Bhuj boarded the vessel and the normal Customs formalities were done. The vessel was lying along the jetty. 36. The arguments addressed by Shri Sayed are very attractive. But close scrutiny of the evidence would make it clear that these improbabilities would not justify us of taki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... premises and locked the premises and kept the key in the house of his brother-in-law s father. Therefore, considerable weight has to be attached to statement when he stated that the seized contraband goods were the goods which he had carried in his vessel during its return journey from Dubai. 38. On consideration of all the aspects, we hold that the evidence satisfactorily establish that the contraband goods seized from the residential premises were the very goods present in the vessel Pirani during the return voyage from Dubai. 39. The next question for our consideration is whether the appellant played any part in the transport of the packages from the vessel to residence at Mota Salaya and whether he had knowledge or had reason to believe that the packages contained smuggled goods. 40. It is true that his son, Eliyas in his statement did not implicate his father - in the act of removal of the packages from the vessel to the jetty and thereafter to the taxies and then to Mota Salaya. He took the responsibility on himself. He, however, admitted that on 26.2.1984, when he came to inform the Customs his father was present at Port Jetty, Shri Eliyas did not state that he had in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of another crew member Daud Musa. He also stated that the two taxies were brought by the appellant. It was the appellant who directed them to take the packages to Mota Salaya and hand it over to Eliyas. another crew member Shri Sale Daud had gone to the extent of stating that the appellant had promised to pay him extra compensation for the special work of removing and transporting etc. of the goods. The crew member Issac Bhatti also stated that the packages concealed under the wet dates bags were loaded into the taxies which were brought by the appellant. The taxi driver Fakir Amad alias Faka categorically stated that on 26.2.1984 one person of the appellant came to his house at about 3 p.m. and informed that the appellant had called the taxi. Accordingly, he had gone to the house of the appellant. He also stated that along with the appellant he went to Mundra. He also stated that on that night the appellant stayed at Darga and asked him to come on the next day. Next day, i.e. on Monday he had gone to meet the appellant who directed him to go to Mundra and he used the taxi for the work of the vessel. He then stated that on Monday at about 3 p.m. Eliyas came with the taxi with Dau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the search they found only contraband goods. No other goods were found. If as contended by the learned advocate that the packages contained the crew members personal effects the Customs should have found atleast some of the personal effects along with the contraband goods. But then no personal effects at all were found. 41. The next question is whether the appellant had knowledge or had reason to believe that the packages contained contraband goods ? This can be gathered only from circumstantial evidence. The Department cannot be expected to lead direct evidence. It would be within the personal or special knowledge of the appellant. His conduct in going to Mundra on successive days, his contact with his son, Eliyas, his arranging transportation of the goods in taxies to a house, the existence of which is not even reflected in the Municipal records, clearly establish that the appellant was aware that the packages contained contraband goods. We, therefore, hold that the appellant knew or had reason to believe that the packages contained contraband goods or smuggled goods. 42. Having regard to our finding that the appellant played a major role in the transport of packages from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... smuggled goods unless the owner of the vessel proves that it was so used without the knowledge or connivance firstly of the owner himself, secondly his agent, if any, and thirdly the person in charge of the vessel and that each of them had taken all such precautions against such a use. Even if we are to accept the learned advocate s contention that the appellant had no knowledge or he did not connive in the use of the vessel for the carriage of smuggled goods, the evidence clearly establish that the tindel of the vessel who is no other than the appellant s son who was in charge of the vessel has himself carried the contraband goods in the vessel and therefore the Collector was Justified in ordering confiscation of the vessel. 45. The only question that left for consideration is as to the fine levied in lieu of confiscation is excessive or unreasonable. Originally the vessel was valued at Rs. 12,00,000. But on the direction of the Hon ble High Court of Gujarat, it was valued at Rs. 7 lakhs. The fine imposed works out to be 25% of the value of the vessel. The statement of the appellant disclosed that 8 or 9 years earlier this very vessel was seized by the Customs Officer for a Cus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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