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TMI Blog1991 (1) TMI 273X X X X Extracts X X X X X X X X Extracts X X X X ..... s not present in this house when the search took place. His fifteen year old son Noor Islam's statement was recorded, who denied the ownership or knowledge of the goods lying in the backyard. As regards the Indian currency, he stated that the same belonged to his father and he did not know anything about it. He stated that his father did not do any business in foreign goods but he lends money to some local people for doing business. 3. Another person present at the spot, said to be the relative of the appellant, namely, Md. Jahangir was examined by the Officers. He has said that a bundle of foreign clothes and few bag loads of scrap was recovered by the officers. He has stated that he heard the appellant was lending money to the smugglers. He admitted that the appellant was a mason and he employed labourers for building houses and that he was also working under him for the last five years. 4. The Officers issued summons to the appellant who appeared before them on 13-2-1985 and gave answers to the questions posed to him. The same is recorded in English. He also filed an application dated 11-9-1985 seeking return of the Indian currency. He submitted that he had sold two plots of l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contraband goods were lying in his premises, it cannot be believed that he had nothing to do with the contraband. At the late stage, during the personal hearing and in the written argument submitted on 26-6-1987, it has been contended that broken metal and the synthetic fabrics were found in the premises of one Nivarani Devi and is not at all corroborated by the earlier statements of Shri Abdul Mannan or the statements of Md. Jahangir or Nurul Islam. Further, the recovery of contraband goods namely the broken metals and synthetic fabrics cannot be considered in isolation of this recovery and has to be considered in conjunction with the recovery on the same day of a huge amount of Indian currency to the tune of Rs. 1,61,000/- not from the backside of the residential premises but from the secret chamber of a steel almirah kept in the bed room of the said premises of Shri Abdul Mannan. About the Indian currency, during personal hearing, affidavits from nine persons have been submitted. These affidavits are dated 13-9-1985 i.e. after the seizure. Moreover, when people keep their money - not a small amount - but a huge amount with somebody as safe deposit, it is a matter of ordinary pru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been held at para 7 that "Merely on the presumption that the seized currency was commission for carrying smuggled gold and was paid out of such sale proceeds the order of confiscation was sustainable in law in the absence of evidence to that effect." The next ruling relied on by him was as renderd in the case of Malar v. Collector of Customs & Central Excise, Tiruchy, reported in 1988 (33) E.L.T. 444 (Tribunal) wherein at para 6 the South Regional Bench has held as follows :- "We should confess, we do not find an iota of evidence against the appellant to hold that the currency of Rs. 55,050/- seized from her represented the sale proceeds of contraband goods. We also do not find any material on record to show that the Customs authorities either entertained a reasonable belief or could have had reasonable belief to effect seizure of the same in terms of Section 110 of the Act. The mere possession of currency and an unsatisfactory explanation with reference to acquistion of the same may possibly engender suspicion in the mind of an authority. But suspicion however grave it might be, cannot take the place of proof. In this view of the matter we set aside the impugned order appealed ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficient to hold that they are smuggled in character. In this connection the learned advocate Sri Mukhopadhyay relied on a decision reported in 1986 (8) ECR 669 - Shri Arvinder Singh Kocher v. Collector of Customs, Bombay -1986 (26) E.L.T. 792 (Tri.) wherein it was held as follows :- "The burden was on the department and the department had not discharged this burden. Even if we assume that the goods are of foreign origin that by itself would not be sufficient to order confiscation in the absence of clear evidence that they were smuggled goods." In such circumstances there is no presumption that these goods are smuggled goods. The other circumstances which were relied on by the learned Collector were that the Customs Officers went to the premises of Shop No. 2 of M/s. Raksha Kali Basanalaya and found that on the previous day of the seizure they had repainted the premises. From the Municipal authorities they came to know that there was no business going on in this premises and that it stood in the name of one Sri Mondal of Narayanpur. But such an investigation report was not furnished to the appellant. The appellant had no opportunity to meet such a report. Hence, placing reliance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e department with an application for return of Indian currency. He has also given answers to the questions posed by the departmental officers. A reading of these questions and answers discloses that the appellant has totally denied that he was having any connection with the goods seized from him. At the first instance, immediately after the seizure, he has appeared before the department with affidavit of nine persons claiming ownership of the seized currency. He has categorically stated that the place from where the goods were seized belonged to one Nivarani Devi. The department had all these informations even before the issue of the Show Cause Notice. It would have been proper for the department to have examined all the nine deponents of the appellant and also investigated the owner of the premises, namely, Nivarani Devi, before issue of the Show Cause Notice. The appellant had also placed all these facts before the department in reply to the show cause notice, but, unfortunately, the department has not investigated the veracity or otherwise of the contentions of the appellant. The learned Collector has disbelieved all these submissions and has presumed on his own that an ordinary ..... X X X X Extracts X X X X X X X X Extracts X X X X
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