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TMI Blog1993 (2) TMI 188X X X X Extracts X X X X X X X X Extracts X X X X ..... as enunciated in the retinue of authorities of Hon ble Supreme Court relied upon viz. AIR 1952 SC 159 - Sashmira Singh; AIR 1957 SC 216 Balbir Singh; AIR 1958 SC 66 in re : Subramanian; AIR 1964 SC 1184 Haricharan Kurmi and others are fully appreciated. (ii) What are the tests laid down to brand a certain part of evidence as forming Independent corroboration ? (iii) Whether the corroboration of other evidence is made to the confessional statements of accused/co-accused or the confessional statements of accused/co-accused are made to corroborate with other evidence ? (iv) Whether one accomplice could be used to corroborate another or can he be used to corroborate one who though not an accomplice is no more reliable than one ? (v) What are the material particulars which are to be looked into while pressing the independent corroboration in the confessional statement of the co-accused? (vi) Whether law as laid down in the case of Collector of Customs, Madras and others v. D. Bhoormull (1983 E.L.T. 1546 S.C.) applicable to confiscation proceedings can be stretched to penalty under Section 112 of the Customs Act, 1962, i.e. penalty in personam? The department in such a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ord. This, according to Shri Sikka, was a point of law arising out of the order of the Tribunal and was the first question to be referred to the High Court. 4. Shri A.K. Singhal, the learned DR submitted that no plea was taken in the Memorandum of Appeal that the conclusion in Para 2.15 of the order of the Additional Collector was incorrect and was not based on a truthful reproduction of the statement of Shri Rajinder Kumar Sharma. This plea could not, therefore, be taken up in the present Reference Application; nor could it be said that this was a point arising out of the order of the Tribunal because a plea not taken before the Tribunal cannot be taken to be a matter arising out of their order. 5. Thereafter, Shri Sikka made an oral request that in order to substantiate his point he should, even at this stage, in the interest of justice be permitted to place a copy of the full text of the statement of Shri Rajinder Kumar Sharma and also English translation of the same. This request was vehemently opposed by the learned Departmental Representative who submitted that this could not be permitted because it would amount to introducing fresh evidence in a Reference Application wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t detail in the order of the Tribunal. The judgment of the Supreme Court in the case of Haricharan Kurmi (supra) which has again been cited by the learned Counsel has been discussed in paragraph 24 of the order of the Tribunal. He, therefore, submitted that no specific questions which required reference to the High Court and which were not already covered by the existing judgments of the Supreme Court in various cases, had been raised requiring reference. Nor could it be said that any of the questions from Sl. No. (ii) to (v) had arisen from the order of the Tribunal. Referring to the decision of the Supreme Court in Bhoormull s case (supra), Shri Singhal submitted that a clear distinction had been drawn between the nature of evidence required for confiscation of goods and that required for imposition of penalty in paragraph 33 of that judgment and, therefore, it cannot be said that questions of law like the ones enumerated at Sl. Nos. (vi) to (vii) had arisen in this case. 10. Shri Singhal also submitted that enough corroborative evidence was available against the appellant in the form of statements of O.P. Malhotra and others and the report of the Handwriting Expert, besides th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cases. Since me question of law raised at Serial No. (ii) stands also covered by numerous other decisions of the Supreme Court, it is not one requiring any reference. 13. The third question is whether corroboration of other evidence is made to confessional statements of accused or the confessional statements of accused are made to corroborate with other evidence . We do not find that such a question arises from the order of the Tribunal. Moreover, there are numerous decisions of the Supreme Court on the question of corroboration of confessional statements by other evidence and these have been referred to in the order of the Tribunal in paras 21 and 22. There is, therefore, no question of making a reference on this point. 14. The fourth question has been dealt with at length in the judgments of the Supreme Court in the case of Rameshwar v. The State of Rajasthan [AIR 1952 SC 54] as well as in Kashmira Singh s case cited by the learned Counsel himself. The latter part of the question about corroboration of the testimony of an accomplice by one who, though not an accomplice, is no more reliable than one, does not arise from the order of the Tribunal and no reference would, ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rson is concerned with their illicit importation or exportation. It is enough if the Department furnishes prima facie proof of the goods being smuggled stocks. In the case of the latter penalty, the Department has to prove further that the person proceeded against was concerned in the smuggling." 18. The Tribunal had extensively quoted from the judgment of D. Bhoormul s case and had referred to it in the context of general question of burden of proof. As we have seen, this judgment also answers questions relating to penalty and it cannot, therefore, be said that the law applicable to confiscation proceedings has been stretched to penalty proceedings under Section 112. There is, therefore, no need of any reference on these two points. 19. The last question is about the existence of any act or omission on the part of the appellant to render the goods liable to confiscation and the appellant liable to penalty. It is significant that the appellant was not aggrieved with the order of confiscation of the goods and, therefore, the question about this aspect does not arise from the order of the Tribunal concerning him. As for penalty, the question posed is one of fact and not of law an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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