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TMI Blog1988 (9) TMI 215X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent; (2) A small check suitcase and (3) Black coloured hand bag were recovered and seized. Some other documents being relevant to and useful for the proceedings under the Customs Act, 1962 were also recovered. Statement of the respondent was also recorded wherein he admitted that he had an Indian Passport No. K 979525; that he along with one Indra Malhotra had flown to Hong Kong from New Delhi on 6-1-1980 by PANAM Flight No. PA 002; that the payment for his own and Indra Malhotra s tickets was made by him by a cheque and that both of them had reached Hong Kong on 6-1-1980 without disembarking at any place on the way. He further voluntarily confessed that he had illegally acquired, purchased, possessed 200 Hong Kong dollars and 200 US dollars in India and had taken out the same illegally with him and that during his previous trip to Hong Kong he had in the same manner illegally acquired 450 US dollars out of India and have taken out the same with him. Statement of the said Shri Indra Malhotra was also recorded in which he staled that he had flown for Hong Kong on 6-1-1980 from Palam Airport, New Delhi by PANAM Flight No. PA 002. After usual investigation the department forme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g, But in the absence of any corroborative evidence the said document cannot be considered as a conclusive proof showing the involvement of the respondent in the illegal export of silver, and that (2) the testimony of the Airlines that the respondent did not pay any extra freight also contributes to strengthen the defence plea. 4. After drawing our intention as aforesaid, she submitted that the aforesaid letter dated 14-5-1980 received from Hong Kong clearly mentioned that one Shri K.K. Malhotra, respondent herein, on arrival at Hong Kong Airport on 6-1-1980 from India had declared 50 pcs. of silver valued at Rs. 1 lakh Hong Kong dollars to the Customs Authorities at Hong Kong. Since submitted the learned SDR, the respondent had admitted in his statement that he had flown to Hong Kong from Palam Airport, New Delhi and reached there on 6-1-1980 without disembarking at any place on the way there remains no doubt that respondent must have carried 50 pcs. of silver from India and declared as such at Hong Kong. She further submitted that the testimony of the Airlines that the respondent did not pay any extra freight is of no consequence in the fact and circumstances of the case. For ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the court of law. For the similar reason submitted the counsel, no presumption regarding the truth of the contents of the said letter can be drawn in favour of the department in terms of Section 139 of the Customs Act, 1962. Alternatively he submitted that at the worst the contents of the said letter may constitute a circumstantial evidence against the respondent and therefore in the absence of any corroborative evidence it cannot be conclusively held that the respondent exported the silver from India to Hong Kong. He also submitted that the testimony of the Airlines that the respondent did not pay any extra freight also probabilise the defence of the respondent. 6. Before we proceed to appreciate the evidence on record in the light of the arguments advanced by the parties it would be convenient to dispose of the legal submissions made by the parties. The contention of the learned counsel for the respondent that the extract of letter dated 14-5-1980 issued by the Trade Industry and Customs Department, Customs and Excise Headquarters, Hong Kong were not supplied to the respondent along with the show cause notice and that the extract supplied to the respondent subsequent to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd that Section 139 of the Customs Act is also not available because the said letter was not tendered by the prosecution in evidence in the court, the said letter, in our considered opinion, is admissible in evidence. For the purpose of appreciating the contention raised by the parties it would be advantageous to reproduce the said letter which runs thus - (SEAL) Our Ref: CECR/H/COOP/3 Trade Industry and Customs Deptt. Customs and Excise Hqrs., 2, Bumsey Street, 10th Floor, Central District, Hong Kong. Your Ref: 14 May 1980. 5-456182 Ext. 261 Mr. B.C. Rastogi, Counsellor Commission of India. 303 ATA Building 1 Stubbs Road Hong Kong. Dear Mr. Rastogi, Further to your request verbally given on 7th May, 1980 regarding information on silver smuggling by Indian nationals, I have referred to the record which reproduced as follows:- Date Goods Value Name, Age Sex Nationality P.P. No. Flight From 25-11-1979 Silver blocks 90 pcs. HK $15,000 Di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register or record is kept, is itself a relevant fact. 8. On a plain reading of the said Section 35 it is clear that it covers public documents of Native States or foreign countries (See Maharaj Bhanudas v. Krishnabai, AIR 1927 Bom. 11). Likewise extracts from public documents are admissible under this Section (S. 35). For this proposition support can be had from the judgment rendered by the Allahabad High Court in the case of Municipal Board Aligarh v. Mumtaz Khan, AIR 1948 Allahabad 309 wherein it was held that registers maintained by public bodies were public documents and extracts from these documents were admissible in evidence under Section 35 of the Evidence Act. The Allahabad High Court reiterated the same view in Hari Lal v. Amrik Singh, AIR 1978 Allahabad 292. Recently the Supreme Court in the case of Kanwar Lal Gupta v. Amar Nath, AIR 1975 SC 308 held that even the Chart furnished by the Police giving sufficient information as to the dates and places of the public meetings held in conne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade by the authorised agents of the public in the course of official duty and respecting facts which were of public interest or required to be recorded for the benefit of the community. In many cases, indeed, in nearly all cases, after a lapse of years it would be impossible to give evidence that the statements contained in such documents were in fact true, and it is for this reason that such an exception is made to the rule of hearsay evidence. 11. Following the aforesaid observations made by the Privy Council in the case of Ghulam Rasul v. Secy. of State, supra, a Division Bench of Jammu Kashmir High Court in the case of Ghulam Ahmad v. Govt. of J K, AIR 1960 J K 136 held that such entries can well fall within Section 35 of the Evidence Act and are, therefore, relevant facts from which proper inference of liability on the part of the defendant can be drawn. It further held that - A presumption that official acts have been regularly performed and that common course of business has been followed is also available to the plaintiff under S. 114 of the Evidence Act. This presumption can serve to strengthen the acceptability and reliability of the entries in Ex. Al. 12. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntal proceedings conducted under the provisions of the Customs Act, 1962. As back as in 1974 the Hon ble Supreme Court in the case of Collector of Customs, Madras v. D. Bhoormull, 1983 E.L.T. 1546 (SC) = AIR 1974 SC 859 held that large scale smuggling of gold or other goods into India may pose a threat to the economic and fiscal interests and policies of the State. Such illicit trade is often carried on by organized international smugglers in the secrecy of the under-world. The more it is organized, the less are the chances of its detection and greater the difficulty of proving the offences relating thereto. Laws have therefore been enacted in most countries which mark a partial or wholesale departure in matters relating to smuggling, from the general principle of criminal law, viz., that it is for the State or its Department to prove the offence against the accused or the defendant and in respect of smuggled goods the provisions of the Evidence Act and the Code of Criminal Procedure, do not, in terms, govern the onus of proof in proceedings under the Customs Act. It further held that in confiscation proceedings under the Customs Act the department is not required to prove its case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alone sufficient, without other evidence, to prove the debt. Whereas in Section 35 no such rider either in the body of the Section or by way of an illustration to it has been put by the Legislature. Thus, it is clear that in the instant case the necessity of corroboration to the entry made in the record of the Customs and Excise Department, Hong Kong does not arise because here the entry made in the records of the Customs and Excise Department, Hong Kong on which the Customs Authorities in India has relied are not those maintained by themselves, but they are the records of an entirely different institution, namely Customs and Excise Department, Hong Kong. And consequently neither the illustration to Section 34 nor the arguments that self-serving admissions without more cannot be the sufficient basis to charge a defendant with liability can strictly speaking made applicable to the instant case. In the case of Ghulam Ahmad v. Govt. of J K, supra the question was as to whether the entries in Ledger account of High Commissioner for India in London are relevant facts and if so, whether from such entries an inference of liability of defendant can be drawn. Answering the question the Div ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereafter on 15th April, 1980 the residential premises of the respondent was raided in connection with the present offence, i.e. to say regarding illegal export of silver to Hong Kong and that at the time of recording the statement of the respondent on 15-4-1980 itself, it was put to him as to whether at the time of landing in Hong Kong on 6-1-1980 he declared before the Customs and Excise Hqrs., Hong Kong that he had brought silver blocks 50 pcs. with him. In the show cause notice dated 9-10-1980 the appellant was made aware of the said entry but he never made any complaint either to the Customs and Excise Hqrs., Hong Kong or to the Government of Hong Kong or to their diplomatic representative in India that at the time of arrival on 6-1-1980 in Hong Kong he never declared that he had brought silver blocks 50 pcs. along with him to the Customs and Excise Authorities. In fact he never challenged the said entry or its particulars i.e. to say bringing of silver blocks 50 pcs. On the contrary during the interrogation of the respondent at the time of raid of his residential premises on 15-4-1980 to a question as to whether he declared 50 pcs. of silver valued at Hong Kong dollar 1 lakh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f coming to the conclusion that the goods had been illegally imported. 16. There is also another aspect of the case. The entry in question squarely falls under Section 35 of the Evidence Act and the presumption that official acts have been regularly performed and that common course of business has been followed is also available to the department under Section 114 of the Evidence Act. This presumption can serve to strengthen the acceptability and the reliability of the said entry made in the official record of the Customs and Excise Department, Hong Kong. Since the said entries are relevant facts under Section 35 of the Evidence Act, proper inference of liability on the part of the respondent can also be drawn as held by the Division Bench of the J K High Court in Ghulam Ahmad v. Government of J K, supra. The Allahabad High Court has also taken the similar view in the case of Rajdei v. Lautan, AIR 1980 All. 109. In that case extracts of Kutumb Register and Electoral Roll were produced in the evidence. Repelling the argument that the said extracts were not admissible and no presumption is attached to their correctness under Section 114 of the Evidence Act it was held that it c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It is also significant to note that as per the entry made in the official record of the Customs and Excise Department Hong Kong the respondent also did not declare the weight of the illegally exported silver. Under these circumstances the question as to whether the respondent paid any excess baggage charges or not pales into insignificance. Moreover it is a negative circumstance which cannot belie the departmental case against the respondent. 18. Before we part, we would like to state that the Collector of Customs, who had adjudicated the case had not found the entry made in the official record of the Customs and Excise Department of Hong Kong as unreliable or false. What has been stated by him is that in the absence of any corroborative evidence the said document, i.e. to say letter dated 14-5-1980 containing the said extract of the said entry cannot be considered as a conclusive proof showing the involvement of the respondent in the illegal export of silver. Further he had also observed that the testimony of the Airlines that the respondent did not pay any extra freight also contributes to strengthen the defence plea. After observing so he gave the benefit of doubt to the res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the department has succeeded in proving its case beyond any reasonable doubt and no doubt much less a reasonable, doubt arises regarding the guilt of the respondent. 19. In the result we allow the appeal and set aside the Order of the Collector exonerating the respondent with respect to the charge of illegally exporting silver to Hong Kong and hold that the respondent had illegally exported 50 pcs. of contraband silver out of India to Hong Kong without declaring to the proper Customs Officer as required under Section 77 of the Customs Act, 1962 and in contravention of Clause 3(1) of the Exports (Control) Order, 1977 issued under Section 3 of the Imports and Exports (Control) Act, 1947 (as amended) read with Section 3(2) of the Imports and Exports (Control) Act, 1947 and Section 11 of the Customs Act, 1964. The said contravention is punishable under Section 114 of the Customs Act. Clause (i) of Section 114 provides for the imposition of penalty not exceeding 5 times of the value of the goods or Rs. 1,000/-, whichever is the greater. In the instant case the value of the illegally exported silver was found to be Rs. 1,67,000.00. Thus taking into consideration the facts and circu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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