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TMI Blog1993 (3) TMI 212X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in respect of the seizure of gold and currency from the applicant at Jaipur on 12-9-1986. Shri R.S. Gotecha, Superintendent of Customs, Jaipur was a member of the said party. (b) The applicant was arrested by the Officers of Customs Central Excise at Jaipur on 11-9-1986 as admitted by Shri R.S. Gotecha, Superintendent in his cross-examination in the adjudication proceedings on 29-6-1987 and as the same fact appeared in a news item in a daily Newspaper with the consent of the Department. (c) The applicant was produced in the Court only on 14-9-1986 and that too after the applicant s father Shri Kunwar Chand had made an application in the Court on 13-6-1986 for the release of the applicant on bail. (d) The applicant was, thus, kept in illegal confinement for three days in violation of the constitutional mandate of Article 22 of the Constitution of India, Section 57 of the Cr. P.C, Section 104 of the Customs Act and Section 68 of the Gold (Control) Act. (e) The statements alleged to have been made by the applicant during long confinement were not even consistent. (f) Through the telegram dated 19-9-1986 and the complaints dated 19-9-1986 made by the applicant and his fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctor in the following words :- ......... If I remember correctly, Shri P.K. Sharma had arrested him on 11-9-1986. The news item was given by the officer and not by me........." 4. The learned Counsel submitted that after his arrest on 11th September 1986, Shri Umesh Chand Goyal was produced before the Magistrate on 13th September 1986 and his statements were recorded while he was in custody. These statements could not, therefore, be taken to be voluntary, having been recorded in custody under threat and coercion. Such statements could not be relied upon. Moreover, the statements were retracted by a telegram, dated 19th September 1986, which fact, again had not been considered by the Tribunal in its order. Once the retraction is taken into account and the statements are not accepted as voluntary, there will be no evidence against Shri Umesh Chand Goyal for recording a finding of guilty against him. Shri Harbans Singh submitted that the Tribunal had not considered the matter for purposes of proceedings under the Customs Act, 1962 and, in the absence of any evidence that the seized gold was smuggled gold, no offence could be made out under the Customs Act. No penalty could, there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of fact alone. He also submitted that the import of gold was not permissible since 1947 and even if the provisions of Section 123 of the Customs Act had not been invoked, it could not be said that the gold of such high purity as 23.5 carats had been imported into India lawfully. 8. Referring to the question that the statements recorded from Umesh Chand Goyal were not voluntary, he submitted that the statements were recorded in his handwriting and the Tribunal, after considering all the pleas raised in the appeal, those raised during the hearing and after considering the records, rejected the plea for reasons recorded in paragraph 17 of its order. The plea now taken that the Tribunal have not considered as many as 8 arguments raised before it by the learned Counsel during the hearing of the appeal is not correct. This would appear from the detailed order of the Tribunal. He also submitted that the learned Counsel had not produced any documentary evidence such as a medical examination report on Shri Umesh Chand Goyal after his production before the Magistrate. He reiterated that all the questions raised are questions of fact requiring appreciation of evidence and it cannot be sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the sides on this point in paragraphs 11 13 of its order and recorded its findings in paragraphs 16 17 of its order. It cannot, therefore, be said that the submissions actually made have not been taken into account and any question of law has arisen because of not having taken them into account. 12. So far as the question at III is concerned, the reasons why the Tribunal has held the gold to be of foreign origin are recorded in paragraph 21 of the order. The relevant portion of which is as under :- ........Since we have held that the statements of appellant No. 1 were validly made and he has admitted his dealings in the past in carrying foreign gold from Bharatpur and disposing it of at Jaipur and carrying the sale proceeds thereof back to Bharatpur, he, by such acts of omission and commission, has undoubtedly rendered himself liable to penalty under Section 112 of the Customs Act. Considering that he has admitted that he did it over a period of time and on a number of occasions, we do not think that a penalty of Rs. 50,000/- imposed on him under Section 112 was excessive. Accordingly, we reject the appeal of appellant (No. 1) on this ground." Thus after a consideration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y statement of a detenu who has violated the provisions of the FERA or the Customs Act etc. the detaining authority should consider the subsequent retraction and record its opinion before accepting the inculpatory statement lest the order will be vitiated. Reference may be made to a decision of the full Bench of the Madras High Court in Roshan Beevi v. Joint Secretary to the Govt. of Tamil Nadu, Public Deptt. etc. 1983 Law Weekly (Crl.) 289 = 1984 (15) E.L.T. 289 to which one of us (S. Ratnavel Pandian, J.) was a party. (Emphasis supplied) The guidelines on the subject are clear from the above. We observe that the learned Collector has recorded reasons why he did not accept the retraction of Shri Umesh Chand Goyal so the Tribunal has done in paragraphs 6 16 17 of its order. While accepting the incriminating nature of the statement, so far as Shri Umesh Chand Goyal was himself concerned, the Tribunal has merely stated the legal position so far as evidentiary value of his statement against his father is concerned. In view of the above, law on the subject is succinctly stated in paragraph 33 extracted above and there is no question of law arises which needs a further reference ..... X X X X Extracts X X X X X X X X Extracts X X X X
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