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TMI Blog1992 (10) TMI 211X X X X Extracts X X X X X X X X Extracts X X X X ..... Balak Ram (v) Dharam Singh S/o Shri Gainda Ram (vi) Prem S/o Shri Babu Ram (vii) Chander Singh S/o Daulat Singh (viii) Net Ram S/o Shri Kishnu (ix) Kishan Chand S/o Shri Sunder Singh. As a result of the examination of the said garbage van the Customs Officers noticed 3 big plastic bags containing some heavy substance. Because of the cloudy weather and insufficient light on the apron for undertaking the detailed examination of the contents of these plastic bags, the Customs Officers brought these bags along with the witnesses and cleaners mentioned above to the Customs enclosure w the International Arrival Hall of Delhi Airport. Detailed examination of the contents of the three bags resulted in the recovery of 4 small polythene bags two in one bag and one in each of the two big remaining bags. On further examination of these 4 small polythene bags these were found to contain 624 wrist watches and 40 metal watch chains all of foreign origin valued at Rs. 2,08,000/-. Panchnama was drawn on 4/5-8-1979 about the aforesaid recovery of the goods. Statements of various cleaners were recorded and 4 of the appellants, namely, Chander Singh, Prem, Net Ram and Babu Lal admitted the recovery a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plastic bags which were quite heavy from the 3 large bags. The Customs Officers took these bags thus recovered and took them also alongwith Balbir Singh and R.C. Nagpal to the main Customs Arrival Hall since there was no sufficient light outside. After reaching the arrival Hall 4 small bags were checked. On checking the packets wrapped in yellow paper in the small bags foreign wrist watches and foreign watch chains, as mentioned above, were recovered. All these watches and chains were to be given to Shri S.K. Sharma at his residence by him (Chander Singh). Prem, Net Ram and Babu Lal today morning (i.e. 5-8-1979), Thereafter Shri Chander Singh goes on to describe how on an earlier occasion this group of four persons had off-loaded watches from the Aircraft hidden in the garbage van, taken out from the garbage van then given to Shri S.K. Sharma at Green Park Extn. next day Shri S.K. Sharma told them that the packets which they were giving to him contained watches. 1.3 This incident according to Chander Singh had occurred around two months back. He further stated that Shri S.K. Sharma used to give them Rs. 200/- per packet on each trip. Last time there were 12 packets, therefore, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er stated that Mrs. Rosalie Peterson, gifted both these items to his children. Regarding 8 bottles of whisky mentioned at S. Nos. 3 to 8 of Annexure A , he stated that 5 bottles of whisky were imported by him and his family members from abroad in December, 1979. The remaining 3 bottles of whisky were obtained by him from his friends visiting India from abroad. As regards the items mentioned at S. Nos. 9 to 16 of Annexure A he stated that these were imported by him and his family members during his recent visit to abroad in 1979. As regards the goods at Annexure B to the panchnama, he stated that these items belonged to one of his friends named Kareem who had come from Hongkong some three four months back and left his baggage in his residence for safe custody with the promise of collecting the same in August 1979 in his way to his native village in Kerala. 1.7 Regarding the seizure of goods at the Airport in the British Airways Aircraft Flight BA 020, mentioned above and his involvement therein, Shri S.K. Sharma stated that he had met one Rajan who was also an employee of British Airways, Delhi. He had been to Rajan s residence in WEA Karol Bagh but does not know the address. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... release of the goods mentioned at S. Nos. 3 to 16 of Annexure A to panchnama relating to search of residence of Shri S.K. Sharma. He imposed penalties of Rs. 20,000/- on Shri S.K. Sharma and Rs. 5000 A each on the other 4 appellants herein. Hence this appeal before the Tribunal. 2. Shri L.P. Dheer, learned Advocate for Shri S.K. Sharma, since deceased, has stated that the statement of Shri S.K. Sharma was taken under duress. Therefore, it was not worthy of reliance. The statement had also been retracted on 6-8-1979 in the bail application made by him in the Court of Shri S.M. Agarwal, ACMM to the following effect :- The petitioner has been tortured and made to sign a number of documents." A similar retraction was again made by him on 8-8-1979 by filing an application for retracting the statement recorded under pressure and torture in the Court of Shri S.M. Agarwal. He also drew attention to a telegram on 5-8-1979 given by his wife to the Collector of Customs, ITO Building, New Delhi, stating therein that Customs Officers who came to the residence at 6 0 Clock after harassing her husband had taken him away at 12 Noon and his whereabouts are not yet known. Shri Dheer has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed and the penalty imposed on him be set aside. 3. Shri Narinder Singh, learned Advocate for Babu Lal has stated that it is apparent from Babu Lal s statement that he was not aware of this conspiracy. He did not look at the goods under seizure from the aircraft. He did not bring them out from the aircraft. There was no prior meeting of the minds of the 4 persons. The Customs Officers had arbitrarily held the 4 cleaners out of the 9 cleaners working in the aircraft. According to him, Babu Lal had no knowledge and he was as innocent as five of the cleaners let off by the Customs officers. He further pointed out that the statements of the 4 cleaners who were the appellants herein and who were alleged to have admitted their role in smuggling of the watches are stereo type statements. Therefore, these statements should not be relied upon apart from the fact that these were taken under coercion and threat. He has further stated that all the 4 statements have been retracted by the respective persons in their bail application. There is no evidence on record that there was any attempt to clear the goods outside the Airport. There is no evidence as to who has kept the baggage in the garba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tly the retraction has been made by the appellants in their bail applications to the ACMM, New Delhi. The statements have not been retracted by the appellants before the proper Customs authorities or any superior authority of Customs. In the absence of retraction by the appellants before the authorities of Customs who recorded the statement or any proper superior authority of Customs, it was not possible for the adjudicating authority or the Collector of Customs to make an enquiry into the allegations of torture, coercion and threat of the appellants leading to their retraction of the statements. Retraction in the bail applications before the ACMM is of general and vague in nature as is usual in all bail applications. Such a retraction, therefore, cannot be given much weight. 6.1 Apart from the foregoing, we also note that the statements of Chander Singh and Shri S.K. Sharma are in their own handwriting. The statements of, the other 3 appellants Prem, Net Ram and Babu Lal nave been recorded by Chander Singh, as stated by them. The statements were read over and were accepted to be true by the aforesaid 3 appellants. It cannot, therefore, be held that statements could be recorded u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e other hand, it has been held by Bombay High Court in the case of Laxman Padma Bhagat v. State [1965 (Bom.) 195 at p. 210] that it is immaterial that there had been no service of written summons as such on some of the persons. An endorsement at the commencement of each statement leaves no doubt that their statements were recorded under Section 108 of the Customs Act (corresponding to Section 171A of the Sea Customs Act). There is no invalidity in the matter of recording such statements. 6.4 We also do not find any merit in the pleas of the learned Advocates, Shri Narinder Singh and Shri Naveen Malhotra that the statements of the 4 cleaners are not worthy of reliance inasmuch as they are identical and verbatim the same which according to them clearly prove that the statements have been taken at the dictation of the Customs Officers. We have seen the statements ourselves. We do not find that the statements are identical or verbatim identical. The statements in their material particulars no doubt give the same facts but that is bound to be so because the statements refer to the same common facts. Language of the statements clearly indicates that they have been recorded from the dif ..... X X X X Extracts X X X X X X X X Extracts X X X X
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