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TMI Blog1989 (12) TMI 208X X X X Extracts X X X X X X X X Extracts X X X X ..... es of Shri Sohanlal Narula, Watch dealer, situated at B-112, Amar Colony, Delhi. Immediately before the commencement of the search of the aforesaid premises, the appellant is alleged to have entered this premises from the back door carrying a brown rexine bag in his hand. On seeing the Customs Officers, the appellant retraced his steps and tried to slip away with the said rexine bag on the Lamby scooter, which he had parked just near the door before entering the said premises. He was overpowered by the Customs Officers. The bag was searched in the presence of two independent Panch witnesses which resulted in recovery of 430 Omex Electronic watches of foreign origin valued at Rs. 73,100/-. On demand, the appellant could not produce any evidence showing the lawful import/acquisition/purchase or possession of the said 430 electronic watches of foreign origin. The watches and the rexine bag and scooter were seized under Section 110 of the Act on reasonable belief that the same were liable for confiscation under the Act. The documents pertaining to the said vehicle were recovered from its dicky which was also seized. A Panchnama was drawn at the spot in respect of the seized items. 3. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after a scuffle; that the search of his hand bag resulted in recovery of 430 smuggled watches which were seized by the Customs officers, that he did not have any bill or vouchers in respect of the seized watches which had been smuggled and that he knew that to purchase, sell or deal in smuggled watches was an offence. 5. The Customs officers have said to have taken the statement of Sh. Varinder Kumar under Section 108 of the Act on the same day i.e. on 20-8-1979 who is to have also admitted about the smuggling activity of the appellant and his agreement with him to purchase the smuggled watches. The statement is alleged to be as follows - That he was working in the shop of his father for the last two years; that they had a shop situated at No. 57, New Lajpat Rai Market, Delhi under the name and style of M/s. Golden Watch House; that he met the appellant four or five months prior to seizure; that he came to an understanding with him for purchase and sale of smuggled watches; that he used to receive 175-180 smuggled watches from him every month; that he used to dispose of such watches in the market in retail sale; that his dealing in smuggled watches was not known to his father; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the amount of Rs. 10,000/- in Indian currency recovered from his house belonged to his son; being a retired man he had no connection with the business. 7. It is the case of the Department in the panchnama that they had taken panch witnesses namely Sh. Anil K. Gupta and Sh. Bhupinder Singh to H. No. B-112, Amar Colony, Lajpat Nagar, New Delhi, the residence of Sh. Sohanlal Narula to witness the search of the said premises. The search authorisation had been shown to Sh. Sohanlal Narula and as the search was going to start, a man wearing blue shirt entered after parking his scooter in the backside of the house. He was carrying a dark brown rexine hand bag. On seeing the Customs officer, the said man retreated hastily and tried to flee with the said rexine hand bag. The said person was overpowered by the Customs officer after a scuffle. On enquiring, the said person gave his identity as Sh. Chander Kumar resident of B-35, Motinagar, New Delhi. The search of the rexine hand bag which got torn in the melee resulted in the recovery of 430 wrist watches Omex - Electronic without chain made in Hongkong of assorted colours and shapes valued at Rs. 73,100/-. On demand the said Shri Chander ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso cross-examined before the Deputy Collector. Their statements are found to be in difference to the one recorded in Panchnama. A summary of their statement in cross-examination is recorded herein below. 11. Sh. Anil K. Gupta has stated that he met the officers in Amar Colony Market. The officers were standing outside the car on the roadside. From there, they went in the car to the place to be searched which was at a distance of about half a furlong. He had appeared for the first time as a witness. He could not dishonour the request of Sh. Talwar who telephoned Sh. Bhupinder Singh to come along with him. He has stated that the following narration in the panchnama is not correct as the search was going to start, a man wearing blue shirt entered after parking the scooter in the backside of the house. He was carrying a dark brown rexine handbag. On seeing the Customs officer the said man retreated hastily and tried to flee with the said rexine bag (underlined by us). He has also stated that further narration in the panchnama which is attributed to him that watches and other goods valued at Rs. 73,100/- is not his version as he does not deal in watches. He has stated that all th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... premises of Sri Sohanlal at 10.30 A.M. He had attempted for surveillance of the premises as somebody was expected to bring the contraband to the premises to be searched. Sh. Chander Kumar was not seen coming to the premises during the period of surveillance. He recorded the statement in the early hours of the night on 20th after he had been brought from Amar Colony to Customs office. He did not remember whether summons were served on him or not. Sh. S.D. Khanna however, denied all other motives for involving the appellant in the case. Sh. K.L. Yadav, Inspector in his cross-examination has stated that the residential premises at B-35, Moti Nagar (of the appellant) was conducted at 11.00 A.M. on 20-8-1979. Search was prepared in his presence and it took five to seven minutes in forming the raiding party. He denied the suggestion in cross-examination of the presence of Sh. Chander Kumar at the time of raid of his residence in the morning of 20-8-1979 and that he had been taken away by two of the officers to Amar Colony. 14. Sh. K.S. Kajla, Inspector admitted having prepared the Panchnama at 12.00 to 1.00 P.M. during the day. He admitted that neither any officer nor any witness excep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were recovered from Sh. Sohan Lal on search and this was considered as an opportunity to involve him. He further denied the suggestion that as a part of the plan few Customs officers went to the house of Chander Kumar (appellant) got him with in his scooter to Amar Colony and foisted the recovery of watches on him. He submitted that he intercepted Sh. Chander Kumar within 10 to 15 minutes of his entering the premises. He has submitted that in the scuffle that he had with the appellant, he had got injury on his right arm. He had submitted that the appellant was taken to the Court at 2.00 PM on next date i.e. on 21st. He had read the bail application of the appellant and in that the appellant had mentioned that he was falsely being implicated and that he had been beaten by Customs officers. The appellant had also mentioned that he had injuries as a result of such beating and that he may be got medically examined. His request for medical examination was allowed by the court. He stated that he had made a complaint against the appellant at Lajpat Nagar Police Station on the evening of 21st August but he denied that he did so after seeing these allegations in the bail application. He ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted in great detail the various statements of the Panch witnesses, officers of the Customs Department and alleged admission of the appellant and Shri Vijender Kumar. From these extractions and gravity of the offence on record, we have to proceed to examine as to whether the charges against the appellant have been proved or not. 21. Shri Akshay Anand, Advocate, for the appellant, argued the case. Miss Renuka Mann, Departmental Representative defended the Department in this case. Shri Akshay Anand took us through the entire record and pointed out several inconsistencies of the statement of Panch witnesses in cross-examination with that of the original statements made by them in panchnama. It was brought to light that the statements in panchnama had been resiled by a few panch witnesses and he further submitted that some of the statements recorded in the panchnama had not been stated by them. He has also shown to us that one witness Shri Jaikishan had stated that at 10/11 A.M. on 20-8-1979, he had been a witness to the search of the house of the appellant and of his arrest. This has been corroborated by another panch witness Sh. Tirlok Nath. Further this witness has also stated tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom his house in the morning of 20-8-1979 and hence, his going on scooter with watches to the Amar Colony to the house of Sh. Varinder Kumar in the morning of 20-8-1979 is impossible and both things could not have happened simultaneously. He further submitted that it was impossible for any person to carry 430 watches in a small bag on a scooter and would sell the same for such a low price. Further no person would straightaway walk inside the net despite seeing so many officials and vehicles near the house. He has argued that the appellant was taken from his house which is very evident and clear from the records. The appellant was taken to the Amar Colony where the officers had already seized these watches and he was implicated in the case and was subjected to torture as is seen from the statement of the Inspector Sh. C.L. Talwar and statement recorded during the night by the Superintendent Sh. S.D. Khanna. 22. Miss Renuka Mann argued the case for the Revenue and defended the Department. She pointed out that the appellant had not placed on record his resilement from confession made by him and hence in view of his own confession and that of Varinder Kumar and Sohanlal Narula, the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aspect of the matter. The lower authorities have not discussed this portion of the evidence at all, which all the more raises suspicion in our minds with regard to the genuiness of this case. It is possible that only after Sh. Chander Kumar s house was searched, he might have been taken to Amar Colony for further searches or it could also be possible that the watches might have been recovered by the appellant. It is not clear as to why the authorities below have not discussed the case from this point of view. The lower authorities have remained silent on the evidence of search and alleged arrest of appellant in his house on the morning of 20-8-1979. We have extracted the inconsistencies in the investigation and in the search, raid, recording of panch witnesses and proceedings before the lower authorities. When the panch witnesses Sh. Anil Kumar and Sh. Bhupinder Singh gave statements against the Department, the Department should have declared them as hostile witnesses and they should have been cross-examined by the Department. It is unfortunate that the entire proceedings have come in for serious criticism at the Bar. The Department has to place clear and acceptable evidence. Wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tch movements as seized from his shop, why then he was acquitted by the Collector (A)? The Department having also not come in appeal against setting aside the personal penalty against Sh. Varinder Kumar, it raises a serious doubt in our mind as to the genuineness of this case. 28. After going through the entire evidence, we are unable to agree with the reasoning of the lower authority. As has been made out from this case, we see that the officers were having information with regard to Sh. Sohanlal Narula only. No information had been received with regard to Sh. Chander Kumar, appellant, carrying to the house of Sh. Sohanlal smuggled watches, as is very evident from the show cause notice and the pleadings narrated in the order-in-original read alongwith the statement of Superintendent and Inspectors. The officers have come in for severe criticism in this case. This criticism is fair and well founded, as the appellant appears to have been framed up in this case. 29. We are constrained to set aside the personal penalty imposed on the appellants in this case. If the penalty and redemption fine have been paid, the same shall be reimbursed within two months from the receipt of this o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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