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TMI Blog1990 (8) TMI 260X X X X Extracts X X X X X X X X Extracts X X X X ..... he recovery of the foreign currency and the Indian currency as stated above. The appellant could not give any satisfactory explanation or produce any documentary evidence in support of his legal acquisition of the above said currency notes and, therefore, they were seized on a reasonable belief that they were smuggled into India unauthorisedly and are liable to confiscation under the provisions of the Customs Act, 1962, read with FERA 1973. The two pillow covers in which the Indian currency notes were concealed were also seized. Certain documents were also seized on the reasonable belief that they would be useful for the proceedings in question. A search list was prepared in this connection incorporating the items of seizure and a copy was handed over to the appellant. 3. Thereafter, a show cause notice was issued to the appellant dated 30-4-82, and two others calling upon them to show cause as to why the foreign and the Indian currencies seized in this case should not be confiscated under Sections 111(d) and 121 of the Customs Act, 1962, and why the pillow covers should not be confiscated and why penalty should not be imposed on them under Sec. 112 of the Customs Act. The appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was retracted very late i.e., on 17-12-1982. He stated that this statement was retracted by the appellant and Rabiul Islam by a joint letter, but the appellant had not signed that letter. He therefore contended that the retraction is only an after-thought and is to be rejected. He relied on the decision reported in 1987 (29) E.L.T. 679 and also on the decision reported in 1986 (25) E.L.T. 811 and on another decision reported in 1988 (35) E.L.T. 519. He contended that the appellant was not asked to appear at 11 P.M. on 4-11-1982 and it was observed from the case records that he was asked to appear at 4 P.M. He also contended that, since no sanction was granted for a criminal prosecution the same was not lodged against the appellant. He stated that the provisions of Section 105(2) of the Customs Act, 1962 was taken up by the learned advocate at the time of hearing, and not in the memorandum of appeal or before the learned Collector. He contended that from the case records it is seen that a detailed report regarding search and seizure was put up to the Additional Collector, who is also the Collector of Customs in terms of Section 2(8) of the Customs Act. He, therefore, submitted tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrency seized in this case are the sale proceeds of the smuggled gold. Hence, as per point No. 2, we hold that it is for the department to prove that the seized Indian currency are the sale proceeds of the smuggled gold. 9. Point No. 3 : As far as point No. 3 is concerned the learned advocate contended that the story of seizure on reasonable belief should be followed up by an inquiry to find out whether the alleged and reasonable belief was justified. He relied on the decision reported in AIR 1961 Bombay 227 - M.G. Abrol v. Amin Chand. 10. We have already held that the burden is on the department to prove the same but the question is whether the statement of the appellant can be stated to be voluntary and true. The learned advocate, Sri Basu relied on a decision of the Supreme Court reported in AIR 1970 SC 940 Ramesh Mehta v. State of West Bengal. It was held in that decision that the statements made to the Officers of the Customs are admissible as evidence, but the party concerned can challenge the statement as one obtained under threat and coercion, and if such objection is raised, the Court shall have to consider the objection judiciously. He contended that the appellant was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of law that retracted version requires corroboration if not in material particulars at least in a substantial measure. In the present case the statements, as rightly contended by the learned D.R., are in the hand of the appellant himself. Excepting mere ipse divit of the appellant that the statements were brought about under threat and coercion there is no evidence on record to probabilise this plea. As very rightly contended by the learned DR, the appellant admittedly did not avail himself of an opportunity to cross-examine the officer who recorded the statement and there is no explanation for the same. We also take note of the fact that excepting that the statements were retracted only on 4-6-1986 there is no satisfactory explanation for such belated retraction . So also in the decision reported in 1986 (25) E.L.T. 811 wherein at page 815, the Tribunal held as follows: Apart from it, it would be seen that immediately on seizure appellant Raichand has come forward with a statement which is inculpatory in nature and confessional in character with reference to the acquisition of goods under seizure. We carefully perused the statement of appellant Raichand dated 27-1-1984. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gold sold to him on different dates during October 1982.1 do not maintain any account book for purchase and sale of gold. I maintain account on a chit of paper and tear it off as and when the deal is over. I took payment in foreign currency notes as it is very easy to carry from one place to another. Regarding the Indian currency notes which were found concealed inside two cotton pillows, I state that for the purpose of security I myself concealed these Indian currency notes in the cotton pillows for carrying to Nepal safely. I have no other business except gold. The persons employed by me as named above are carrying gold to Nepal by rotation. I further state that my two associates namely Mohammad and Alam are expected to arrive Calcutta with about 50 tolas of gold from Biratnagar to Calcutta tomorrow the 4th November 1982. They are carrying gold in rectum. I do not know exactly by which train they are coming.......". 14. On a reading of this statement it is clear that the appellant admitted that the foreign currency seized from him is the sale proceeds of gold to other parties. But as far as the Indian currency is concerned, he never admitted that it is the sale proceeds of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 we have already come to the conclusion that the department has failed to establish that the seized Indian currency represents the sale proceeds of smuggled gold. Accordingly, the confiscation of the same is hereby set aside, and the seized Indian currency is hereby ordered to be given to the appellant. 19. As far as imposition of penalty on the appellant under Section 112 of the Customs Act is concerned, the department has to prove that the appellant was concerned in the possession of any goods which he has reason to believe are liable for confiscation and he was concerned in purchasing or selling of such goods. The admission of the appellant in his statement with respect to the foreign currency is to the effect that they represent the sale value of the gold which he had sold. We have already held that the confession of the appellant is voluntary and true. This confession of the appellant that the foreign currency represents the sale proceeds of the smuggled gold is sufficient to hold that he was dealing in smuggled gold and was purchasing and selling the same. It was contended that the appellant is only an accomplice and his statement requires corroboration, but as far as Ra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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