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TMI Blog1990 (9) TMI 185X X X X Extracts X X X X X X X X Extracts X X X X ..... remanded by the Tribunal vide its order No. A/264/87-NRB in appeal No.C/2139/85-NRB. Shri Sharad Chandra Bhandari expired on 3-8-1988 after the impugned order passed by way of remand had been issued but before he could file the appeal against the said order. The present appeal was, therefore, filed by his son Shri Anil Kumar Bhandari against the impugned order. 4. The Tribunal allowed Shri Anil Kumar Bhandari to be taken on record as legal representative by its order dated 7-3-90. The department has also filed a cross objection on 26-10-1988 with reference to the impugned order. 5. The learned counsel stated that in this case the Tribunal had remanded the matter with the direction to the adjudicating authority to allow reasonable oppo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at it was easily accessible to an outsider. 10. The appellant denies that Shri Sharad Chandra Bhandari or any other member of the family were dealing in smuggling of foreign watches or in purchase or sale thereof. 11. The learned Additional Collector has himself stated that no member of the family has come forward to own the responsibility and has in the circumstances thought it fit to fasten the liability on Shri Sharad Chandra Bhandari merely on the ground that he was the karta of the family. It was their contention that it was not proper to do so. The Additional Collector s order is based on assumption and presumption only and there was no endeavour to connect Shri Sharad Chandra Bhandari with the watches. 12. The statement of Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not been shown. In any eventuality there was no evidence to show that Shri S.C. Bhandari was a person concerned in either smuggling or illegal dealing in smuggled watches and imposition of penalty was not justified in the circumstances of the case. The learned SDR drew attention to the order-in-original and the cross objection filed by the department. 16. At the outset he clarified that the department is not aggrieved with any portion of the Additional Collector s order and the so called cross objection may be taken to written brief filed by the department and was not made available hence he could not be produced for cross examination as would be evident from the cross objection filed by the department. It was also his contention that w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pointed out that in the case of J.A. Naidu v. State of Maharashtra (1979 Cri. L.J. 962) the Hon ble Supreme Court has observed that suspicion, however grave, cannot take place of proof . Hence the appellant cannot be held as guilty merely on suspicion. 22. The learned counsel has also rightly drawn attention to the case of Radhakishan v. State of U.P. (AIR 1963 SC 822) in which the Hon ble Supreme Court has observed, inter alia in respect of the articles which were found in an almirah of the house in which the accused lived jointly with his father that the evidence was not sufficient to infer exclusive possession of the articles by the accused. The Hon ble Supreme Court had further observed in the case that the fact that the accused had ..... X X X X Extracts X X X X X X X X Extracts X X X X
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