9911796707
TMI Blog1994 (2) TMI 171X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the absence of any proof of licit acquisition/possession/import of the same by any person there, the gold was seized in the reasonable belief of it having been smuggled. The passport of the appellant was also taken over by the DRI officers. 2. Shri Sriram Verma, who was present at that time, revealed that the house belonged to the appellant herein who resided at D-9/3, Model Town III, Delhi and the seized gold biscuits also belonged to him. The appellant's residential premises were searched but nothing incriminating or contraband was recovered therefrom. Shri Sriram Verma stated that he was the distant brother-in-law of the appellant and that he is looking after the construction work of the appellant's house at E-1/8, Model Town-II si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Rs. 50,000/- on the appellant and Shri Sriram Verma respectively under the Customs Act, 1962 and penalties of Rs. 50,000/- and Rs. 25.000/- respectively on the appellant and Shri Sriram Verma under the Gold (Control) Act, 1968. Hence this appeal. 5. Shri B.B. Gujral, learned Counsel draws our attention to the Panchnama and submits that the seizure under the Customs Act, 1962 and therefore, the provisions of Section 123 are not attracted to the facts of this case. He, therefore, submits that the burden of proof lies on the Department to establish the smuggled nature of the gold. In support of his contention, he cited the judgment of the Hon'ble Supreme Court reported in (AIR 1962 SC 496) Gian Chand v. State of Punjab and the judgment re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Panchnama. He submits that the appellant cannot be imposed any penalty as he was not in conscious possession of the gold which was admittedly recovered from a premises which was under construction and therefore, accessible to several persons and he relies upon the order of the Tribunal in the case of Pyarelal Sood [1992 (43) ECR 478] in support of this proposition. He, therefore, prays for setting aside the penalties. 6. The learned DR Shri K.N. Gupta, submits that the order is based upon the factum of recovery, except that the statement of Shri Sriram Verma was retracted only after 12 days which is, therefore, a belated attempt by Shri Sriram Verma to escape involvement in the offence. The Adjudicating authority has rightly held that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strued the expression 'Seized' in the context of usage in Section 178A to mean 'take possession of contrary to the wishes of the owner of the property'. In the case of Ranjit Ram v. Collector of Customs [1983 (14) E.L.T. 2086], the Tribunal held that a seizure under the Customs Act cannot be effected by a person other than a Proper Officer as defined in the Act and once, therefore, the seizure has been effected by the Police as in that case, and not by the Proper officer. Section 123 becomes inapplicable since it was not a seizure under the Act in terms of the power specifically vested in the Proper officer. The same view has been expressed by the Tribunal in the case of K. Beeman v. Collector of Customs, Madras [1987 (29) E.L.T 128] and in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e only piece of evidence available with the department to establish knowledge of the applicant that the said contraband gold was in the house is the statement of Shri Sriram Verma which has not stood the test of cross-examination. There is no other independent evidence to link the appellant with the contraband gold. We are therefore, of the view that the department has not discharge the burden of establishing the appellant's involvement in the offence beyond doubt. Accordingly, we extend the benefit of doubt to the appellant and set aside the penalties imposed upon him. In the result, the impugned order is set aside in so far as it relates to penalty and the appeals are allowed with consequential relief, if any due, to the appellant. X X X X Extracts X X X X X X X X Extracts X X X X
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