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TMI Blog1990 (5) TMI 157X X X X Extracts X X X X X X X X Extracts X X X X ..... es of appellant on 28-3-1987, and since the facts involved in both the cases are same, we propose to dispose of the appeals by a common order. 2. The brief facts of the case as narrated by the department are that information was collected to the effect that one Shri Jethmal Sethia of above address is in possession of huge quantity of foreign make gold imported illegally and same are ready for despatch to some other place, the officer of Customs and Central Excise, Agartala equipped with search warrant issued by the competent authority, searched the office-cum-residence of above named Jethmal Sethia on 28-3-1987 at about 12.00 hrs. in presence of independent witnesses and recovered a safari brief-case from the 2nd floor of the building. After collection of a bunch of keys from Sri Sethia the briefcase was made open and 10 indigenous soap cakes, Rs. 500/- in Indian currency and 2 dozen of Chinese lead pencils were recovered from the briefcase. As per information the said indigenous soap cakes were cut in presence of Panchas who were witnessing the search, 10 gold biscuits having foreign markings were brought out from the concealment of the soap cakes. 3. In a written statement su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effort of Sri Sethia to avoid ownership of the gold to escape from penal action of law for illegally importing and dealing in contraband gold. 7. In view of the above the officer had every reasons to believe that the said gold biscuits having foreign making and China made lead pencils were illegally imported into India in violation of Section 11 of the Customs Act, 1962 read with Import Control Order No. 17/55 dated 7-12-1955 issued under Section 3(1) of the Imports and Exports (Control) Act, 1947 as made applicable under Section 3(2) ibid and in violation of Section 13(1) of the Foreign Exchange Regulation Act, 1973 read with R.B.I s Notification No. 9/74 dated 1-1-1974 as made applicable under Section 67 of Foreign Exchange Regulation Act, 1973 and are liable for confiscation under Section 111(d) of the Customs Act, 1962. Indian currency of Rs. 500/- being the sale proceeds of smuggled goods are liable for confiscation under Section 121 of the Customs Act, 1962. Soap cakes and briefcase being used for concealment and as container are also liable for confiscation under Sections 119 and 118 of the Customs Act, 1962 respectively and hence the seizure was effected. 8. The Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etraction was made at a late stage and hence it is only an after-thought. It was also contended that the case of the appellant in the reply to show cause notice was that, one Promotosh Bhowmik of Belonia, one of his customers came to his office and left the briefcase then in the first floor and thereafter one of the officers picked it up to the second floor of his office-cum-residence. But Sri Biswas pointed out that on enquiry by the department at Belonia no such person by name Promotosh Bhowmik could be spotted out. It was, therefore, contended that this story put up by appellant is a false one. He also contended that if that story were to be a true one, the appellant could have produced the above said person or at least could have given the correct address of that person to the department which is not done in this case. It was also contended that the appellant never tried to cooperate with the department to spot out that person. It was therefore his contention that this story of the appellant is only an afterthought and is a false theory. 12. Sri Biswas also contended that there were other circumstances to indicate that the appellant was in conscious knowledge of the contents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant in stating the name of Promotosh Bhowmik, who is a non-existent person, who is alleged to have kept the box in the premises goes to show that appellant is putting up false stories. Thus the fact that he shifts his stand from time to time goes to show that these circumstances prove the case of the department and, therefore, he prayed for the dismissal of the appeal. 13. We have heard both sides in detail. The points that arise for our determination are - (i) Whether the appellant was in conscious possession of the briefcase and the 10 gold pieces and the foreign lead pencils which were alleged to have been seized on 28-3-1987 from his office-cum-residence; (ii) Whether the imposition of penalty under Section 112(1)(B) of the Customs Act and under Section 74 of the Gold (Control) Act, 1968 on the appellant is legal. Point No. (i) - In dealing with point No. 1, we feel that it is necessary to reproduce the orders of the learned adjudicating authority both in the Customs case and in the Gold Control case. In the case under Customs Act, 1962 the learned adjudicating authority observed as follows: I have carefully examined the records of the case including the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ufficient evidence to prove that the gold has been brought into India and is liable for confiscation." 14. In the case under the Gold (Control) Act, the learned Collector stated as follows: I have carefully examined the records of the case including the reply of the show cause notice and the submission made at the time of personal hearing. In spite of all his denial about the ownership of the seized foreign make primary gold, Shri Jethmal Sethia never disputed the fact that the briefcase containing foreign make gold was recovered from his office-cum-residence at the 2nd floor of the building owned by him and from his possession. This fact is further established from the fact that he failed to produce the alleged real owner of the gold even when his movement was not restricted. I am therefore, inclined to conclude that Shri Sethia actually acquired and was in possession of foreign make primary gold in contravention of provision of Section 8(1) of the Gold (Control) Act, 1968 and such gold is liable for confiscation. Accordingly I pass the following order." 15. It is clear from the above orders of the learned adjudicating authority that he had accepted the fact that the brie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er in detail with reference to the facts and circumstances of the case and a clear finding should have been given in this regard. But no such finding or discussion is made in the order. The appellant retracted the statement on 29-3-1987 itself by filing an application before the Magistrate and it was again reiterated in the reply to the show cause notice. In such circumstances the validity of the confession made on 28-3-1987 is to be decided on the facts and circumstances available in this case. The main part of the confession reads as follows: On search of my office room which is located in the second floor of my building, a small briefcase was found by the officer which was lying just near the almirah of the room. On approach of the Custom Officers I told that the suitcase belong to one of my customer name Promotosh Bhowmik of Belonia who arrived to my office-cum-residence at about 10.00 hrs. and requested to me to keep the suitcase temporarily while he will take back after sometime. Custom Officers being suspicious requested me to open the suitcase when I expressed my inability that I was having not key of the suitcase but I co-operate the officers by opening it through my pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustoms Central Excise intimated the appellant, by a letter dated 30-6-1988 rejecting his plea for cross-examination. But in that letter appellant was given liberty to produce documentary evidence in support of his case. The appellant produced the affidavit of the seizure witness Mahendra Kumar dated 30-9-1988 and the affidavit of the other witness Jaichand Lal dated 24-8-1988. Both of them have sworn in their affidavits that the inventory was signed by them in the Customs office late in the evening and they were not present when the premises of this appellant was searched. The affidavits were not taken into consideration by the learned adjudicating officer. If all these facts as described above are taken together it becomes highly doubtful as to whether the briefcase was actually recovered from the second floor of the office-cum-residence of the appellant. 19. It is no doubt true, as rightly contended by the learned SDR, that in such cases of smuggling the department is not expected to prove its case with mathematical precision. The case has to be decided on preponderance of probabilities. These are the principles laid down by the Supreme Court in Boormull s case. The argument ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of the death of his grandfather and he was specifically directed to appear before the Court on the next date. It is thus clear that his movements were always restricted and whenever he wants to go out of his premises he had to take specific permission for the same. In such circumstances the finding of the learned Collector that Promotosh Bhowmik being his customer, he failed to produce him when his movements are not restricted is not correct. This circumstance therefore should not have been taken as a corroborating factor in this case. In such circumstances the appellant could not be found guilty on suspicion. At best what can be said in this case is that there is a strong suspicion against the appellant. Suspicion however strong cannot take the place of proof. 22. Further it is also not known as to what are the enquiries which the department had made to find out the whereabouts of Promotosh Bhowmik of Belonia. The appellant is not expected to know the houses of all his customers. The department could have taken the permission of the Magistrate to take the appellant along with them to Belonia and to make an enquiry in his presence as the appellant had stated that he can identi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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