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TMI Blog1991 (4) TMI 233X X X X Extracts X X X X X X X X Extracts X X X X ..... aving jurisdiction over the said village. The appellant was unlawfully kept in custody in the Customs House and was forced to append her signatures on various papers prepared by the officers of Customs themselves. The appellant is almost illiterate and knows only how to sign in Punjabi. The contents of the said papers were not disclosed to her. The appellant had to sign the papers because, being a female and alone, surrounded by the Customs Officers, she was helpless. 4. The appellant was produced in the Court of the learned Additional Chief Metropolitan Magistrate, New Delhi (in short hereinafter referred to as the A. C. M. M ) on 26-7-1984 with a complaint alleging therein that the appellant had brought from Bangkok goods of foreign origin valued at Rs. 1,67,440/- which were recovered from 12 zipper suit cases and 5 zipper hand-bags, some of which were lying open and partly scattered on the floor. The goods were alleged to have been recovered from the room on the second floor of the house of the Sunil Kumar Sharma, s/o Dharampal Sharma, resident of 16/96, Subash Nagar, New Delhi. The said baggages were alleged to bear tags No. F-003801 to 003811, 003814, 003815, 003819, 003821 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rsonal hearing was fixed before the Additional Collector of Customs on 22-8-1988, but the appellant could not attend the personal hearing because of her personal problem. Request was, therefore, made for adjournment of the hearing. The learned Addl. Collector has not referred to the request of the appellant and has not given any reasons for refusing adjournment and denying the appellant a reasonable opportunity of being heard. The learned Addl. Collector has found that the seized goods were stated to have been brought after concealing in the baggage of the school children by the appellant, who came from Bangkok on 22/23-3-1984 night and were sold/offered for sale. 8. The learned Additional Collector has, however, not gone into any of the contentions made by the appellant in reply to the show cause notice. The learned Additional Collector has also not considered the statement of Shri Harish Chander, Inspector, made by him in cross-examination by the appellant s advocate. 9. The learned Additional Collector has erred in law in relying upon the statements of Shri Ajay Kumar without examining him and providing an opportunity of his cross-examination by the appellant in terms of Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rjeet Singh and Shri Ajay Kumar and that she knew that Shri Ajay Kumar was working as an agent of my husband for disposal of the smuggled goods. 18. The learned counsel in reply emphasised that the allegations made against the appellants were baseless and she was not in any way concerned with the goods seized from Shri Satpal Arora or premises of Shri Sunil Kumar and Shri Ajay Kumar and that there was no evidence to connect her with the seized goods. The statement of Shri Satpal Arora and Shri Ajay Kumar are in the nature of retracted statement of co-accused and cannot be relied upon. Further, the statement of Smt. Harbhajan Kaur was neither voluntary nor true and he would like to draw attention to the circumstances in which the statement was recorded and the fact that a complaint was made in the bail application to the Additional Chief Metropolitan Magistrate. 19. The learned counsel in response to a query from the Bench further clarified that they are not claiming the goods and the appeal is confined to the setting aside of penalty imposed on the appellant. We have considered the submissions of both the sides. 20. We find that the contentions of the learned counsel have a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstrued in the same sense and given the same meaning as in I. P. C. 2. In view of this position merely because Smt. Harbhajan Kaur, the appellant, was the wife of the person whom the department considered as the master mind behind the operations and had accompanied the children, it could not be presumed that she was acting in concert with or in league with her husband with the intention to smuggle the goods into India and sell them; And the department was required to show evidence - circumstantial or otherwise which would enable us to infer that the appellant intentionally participated in or facilitated the commission of the alleged offences. 3. In this context it is necessary to remember that mere presence at the time of commission of a crime cannot amount to intentional aid unless it was intended to have that effect . Similarly A mere giving of an aid will not make the act an abetment of an offence, if the person who gives the aid did not know that an offence was being committed or contemplated ; for it is the act of intentional aiding and therefore active complicity which is the gist of the offence of abetment made punishable by law. Further even mere awareness that a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estigation impinge on the adjudication becomes even more clear when we note that actual number of children and actual number of ladies who accompanied them has not been ascertained and no clear finding has been recorded regarding the exact quantity and type of value of the goods ascribable to the appellant and the children who accompanied her. 27. It is interesting to note that the number of children mentioned by Smt. Harbhajan Kaur is five (but the names mentioned by her are four) and she also refers to one more lady and other children; whereas Shri Sunil Kumar mentions the number of children as six and number of ladies as two and in the statement of Shri Ajay Kumar the number of children mentioned is ten and number of lady one. 28. It is also noted that the difference of versions in the copies of the statements filed before us (both in Hindi and English) by the learned counsel and those incorporated in the order-in-original has remained unexplained by the department. 29. Looking to the totality of facts and circumstances and noting the infirmities pointed out above, it appears that the department has tried to bypass the main issues raised before it and has not squarely met ..... X X X X Extracts X X X X X X X X Extracts X X X X
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