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TMI Blog1992 (9) TMI 209X X X X Extracts X X X X X X X X Extracts X X X X ..... re engaged in the smuggling of medicinal powder of third country origin the Officers went to Heera Hotel situated at 28, Grant Street, Calcutta in the afternoon of 19-6-1987. One S. Choudhury staying in Room No. 15 of the said Hotel gave his address as Karol Bagh, Bombay. He stated before the Officers that he and Abdul Bashar who was staying in the room are Bangladesh nationals. The name of Abdul Bashar was not entered in the Hotel Booking Register. Some papers incriminating in nature were seized from his possession under Section 110 of the Customs Act, 1962. They were taken to the D.R.I. Office and their statements were taken by the Officers. On the basis of admissions and disclosures made by one Qaiyyum he was also taken along with the above said persons. The Officers found that Lilaram and Gunwant Rai Sanghvi were involved in the smuggling of medicinal powder. One Munnalal Gupta was also examined who stated that the medicinal powder was brought to a place at Mission Road near a petrol pump. When his Office premises at 5/3 Clive Road was searched, certain documents and a cheque for Rs. 4 lakhs and Indian currency of Rs. 6,000/- and 12 sample packets of medicinal powder and two po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n beyond 24 hrs is illegal and relied on the following decision : 1984 (15) 289 Madras - Roshan Bibi Ors. v. Joint Secretary, Tamil Nadu. 4. Shri Mukhopadhyay also contended that prolonged custody of the appellant is sufficient to show that the statement given by him has no value and he relied on the following decisions :- (1) AIR 1956 SC 56 - Nathu v. State of Uttar Pradesh (2) 1978 (3) S.C.C. 435 -Sankariya v. State of Rajasthan (3) 1992 (58) E.L.T 192 - Manindra Chandra Dey v. C.E.G.A.T. (4) 1992 (60) E.L.T 277 - Ram Chandra v. Collector of Customs (5) 1992 (57) E.L.T 63 - State of Maharashtra v. Fazal Ahmad He also contended that four co-accuseds have implicated the appellant and confession of a co-accused without independent corroboration cannot be relied on against the appellant. In this connection, he relied on the following decisions :- (1) 1991 (52) E.L.T 543 - Kuldip Singh v. Collector of C.E. (2) 1992 (58) E.L.T 192 - Manindra Chandra Dey v. CEGAT (3) 1992 (59) E.L.T. 442 - Debu Saha v. Collector of Customs. 5. The learned Consultant Shri Dasgupta, appearing for the appellant Khemchand Bhagnani also contended before us that the documents which are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ended that there is nothing to show that the same was extracted under duress. He also pointed out that the statement of the co-accused can be acted upon against the appellant and in this regard, he relied on the following decisions :- 1984 (15) E.L.T 129 - K.A. Hazi v. Collector of Central Excise Customs 1987 (27) E.L.T. 74 (Tri.) = 1986 (9) ECR 574 - Sukar Narain v. Collector of Central Excise He also contended that Khemchand is the son of Lilaram and Lilaram in his confessional statement had implicated his son Khemchand. In addition, four other co-accused also have implicated this person. He also pointed out that Khemchand did not attend before the Officers on 20-6-1987 in spite of a summon. This conduct also is relevant. As far as appellant Mohan Singh is concerned, he contended before us that one of the co-accused has clearly stated that the lorry WMK 3126 was the lorry which was engaged for conveyance of the contraband medicinal powder. It was also contended that this lorry was found abandoned in a place. He also pointed out that three co-accused have clearly stated that the lorry was green in colour. With respect to the photographs furnished by the learned Advocate du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... violated. These are the principles laid down by the Supreme Court in a decision reported in AIR 1976 SC 143, City Corner v. Assistant Collector. In this case, the non-supply of the documents has seriously prejudiced the appellant as he could not make a proper and effective defence of his case. Another factor is that the adjudicating authority never discussed the plea raised by the appellant that his statement had been taken under threat and coercion. In order to rely on a statement, it is always necessary that the same should be voluntary and true. When the appellant takes such a defence, it is necessary for the Adjudicating Officer to look into the facts of the case and then come to the conclusion that the statement is voluntary and true, but no such discussion is made in the order and without making such a discussion he merely stated that the appellant had given a statement which is inculpatory in nature and the same is corroborated by the statement of the co-accused. 10. In this case, the appellant had specifically sought for the cross-examination of those co-accuseds, who had implicated him in this case and he wanted cross-examination of the Officers to show that his statemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ruck was found abandoned in a place. This circumstance is an independent corroboration of the statement of co-accused. The photographs relied on by the learned advocate to show that the lorry was not green in colour cannot be accepted at this stage of hearing. It is not known as to when this photograph was taken. A mere oral statement that it was taken recently cannot be accepted. If the lorry is in the custody of the department, it is not known as to how a photograph can be taken without the permission of the Departmental Officers in this regard. Therefore, much reliance cannot be placed on these photographs. The statement of the co-accused is thus corroborated by the circumstances mentioned above and it is clear that the medicinal powder which is contraband in nature was carried in the lorry. In that view of the matter, as rightly contended by the learned J.D.R. the lorry is liable for confiscation. These are the principles laid down in the following decision :- 1990 (47) E.L.T. 108 - Laxmi Sahani v. Collector of Central Excise. However, it was pleaded by the learned advocate Shri P.K. Sengupta that this is the only source of income of the appellant and the lorry is seized mo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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