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TMI Blog1994 (7) TMI 151X X X X Extracts X X X X X X X X Extracts X X X X ..... e documents. 4. Learned Counsel further stated that according to the Department the statements of Capt. H.A. Ansari were recorded and revealed modus operandi and the involvement of other persons accused in the show cause notices including Sh. M.C. Goel and the foreigners mentioned therein. 5. The Department has alleged that Capt. Ansari was engaged in illicit smuggling and procurement of foreign blue films and had also acquired the foreign made articles mentioned in Annexure 4 to the Panchnama like projectors, transistor radio with tape recorder and movie light reflector for which he could not produce any Customs Duty receipt. 6. According to the Department Capt. Ansari had admitted in his statement dated 2-6-1976 given before A.C., D.R.I., Lucknow that Rs. 1,00,000/- Indian Currency was unaccounted money and sale proceeds of the smuggled goods i.e. hashish and charas which he had realised from one John Godinho of C-25, Greater Kailash Enclave-I, New Delhi as associate and accomplice, who in turn had acquired it from Joe De Silva and Henry le Fabvure both of New Delhi and the main persons concerned in the conspiracy to smuggle out hashish and charas concealed in wooden and br ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontacted Capt. Ansari at Moradabad at the later s residence and gave him idea of sending charas in brass items to Mr. Lewis in Canada. Capt. Ansari has further stated that prior to the aforesaid visit of Sh. Goel in Moradabad as aforementioned persons namely Mr. Henry H. Le Fab vure, Mr. John Godinho and Mr. De Silva had visited Mr. M.C. Goel s place at Saharanpur and contacted one Shamshed Ahmad, who was working with Mr. M.C. Goel for stuffing the charas in wooden items and Shamshad had agreed to their proposal with this background and planning Mr. Goel had come to Moradabad and talked to Capt.. Ansari regarding illicit export of charas to Canada. Thereafter, Mr. M.C. Goel took Capt. Ansari to his sister s place in Bengali Market, New Delhi and gave him 1 kg of charas which was in the shape of small balls which Capt. Ansari carried to Moradabad and filled in a round brass kettle, the mouth of which was sealed. This consignment was air freighted by post parcel at a local post office in Moradabad through fictitious firm and was consigned to Mr Lewis in Canada. Capt. Ansari Hamid had further stated that the address of Mr. Lewis in Canada and the name of the fictitious firm confirming ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charas which was stuffed in wooden handicrafts appears on against 213 to 218 of the said Invoice. Mr. Godinho, it appears, used to prepare the Invoice and other papers for sending the consignment to Canada. Capt. Ansari was to sign the documents as per instructions from Mr. Godinho and to take delivery of goods from Railways and hand over the goods and documents to Shipping Agents viz. M/s. Jeena and Co. New Delhi for air freighting the consignments. As per the department s view besides the deposition of Capt. Hamid Ahmad aforesaid, there appears to other corroborative evidence to confirm the visit of the aforesaid persons to Mr. M.C. Goel s factory at Saharanpur, Capt. Ansari s visit to Delhi and meeting with Henry alongwith M.C. Goel separately and with John Godinho De Silva and Henry at 2-B/20, Lajpat Nagar, New Delhi decision on respective shares on account of smuggling of charas through exports. Henry giving the names of U.S.A. and Canadian firms to whom consignments containing concealed charas was to be sent etc. 9. According to the department there was evidence to indicate that consignments exported by M/s. Trade Flankers and M/s. Joesonary Exports of Joe De Silva were bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut which he did not state before the investigating officers and which was subsequently found out of the enquiry made in this concern. 14. It was the contention of the Advocate for Ex. Capt. H.A. Ansari that the Appellant Sh. H.A. Ansari had not committed the alleged offences and his statements were not voluntary but had been extracted under duress and therefore could not be relied upon. It was also his contention that the show cause notice was not issued by the adjudicating authority as required by law and therefore it was not a proper show cause notice. 15. It was also his submission that no reason was recorded for the seizure made on 3-5-1976 in the PANCHNAMA or otherwise. 16. The money found at Capt. Ansari s premises was his own and his mother s and was not earned from any illegal activity. But no statement of his mother was recorded at the time of seizure. 17. It was also his submission that once he had claimed that the confession was obtained under torture the adjudicating authority should have allowed examination of the concerned officers. 18. It was also his submission that the show cause notice was not issued within the prescribed period of six months and the per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs. of charas with which the appellants had no connection at all. The show cause notice also did not make any mention that the statements of the appellants and of the persons implicating him are being relied upon. 25. It was also their submission that the notice was vague and confusing and gives no opportunity to the appellant to make a proper representation. 26. The case was adjudicated by the Additional Collector, Meerut without observing the principles of natural justice after fixing a date for hearing for which neither he nor his Counsel received any notice and the entire case including investigation, issue of show cause notice and adjudication suffer from non-application of mind. It was his submission that the show cause notice does not contemplate any penal action against Sh. M.C. Goel and hence no penalty could be imposed on him. (The penalty has been contemplated only against Capt. H.A. Ansari and that too only in respect of miscellaneous goods seized from him). 27. The proposal in the notice for action under 135 has no relevance and bearing on the instant adjudication proceedings. 28-29. Assuming but not admitting the voluntary nature of all the statements they did ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs recorded by the Customs are voluminous and contained wealth of information beyond the figment of imagination of the Customs Officers and by no stretch of imagination it can be held that they were concocted by some Customs Officer and there was no evidence to show that they were extracted under torture. 34. It was submitted that show cause notice need not be issued by the adjudicating authority itself but can be issued by lower authority. 35. It was also his submission that even if a show cause notice was issued after six months it still remained a valid show cause notice. 36. Therefore, while he accepts that the notice was issued after six months without notice and without granting a hearing to the appellants it was his contention that it still remained valid and the adjudicating officer could proceed on its basis. Similarly, merely an addendum or corrigendum without changing the main basis does not amount to a second show cause notice. It was also his submission that merely a mention of a wrong rule does not invalidate the show cause notice. 37.It was also his submission written brief dated 17-5-1994 indicating the citations in support of above contentions may also be t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w Cause Notice does not make any sense when it asks the appellants to show cause as to why they should not be proceeded against for contravention of Section 135. 41. But even if this is ignored, there is no end to other acts of omission and commission and indeed negligence by the officers inasmuch as while a reading of the show cause notice shows that the main thrust of the case relates to illegal export of hashish and charas (concealed in other articles), the principal accused Capt. Ansari and others have not been asked to show cause with reference to sections relating to such export and Section 114 which deals with the penalty for attempt to export goods improperly has not been invoked at all. Capt. Ansari has only been asked to show cause with reference to the seized Indian currency and the imported foreign goods found in his premises. Thus, it is seen that the main thrust of the case is virtually lost sight of in the operative part of the show cause notice. Again the second appellant Sh. Goel, although treated as one of the persons concerned in the illegal export of hashish and charas and alleged to have played a role in concealing the same, has not been asked to show cau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Capt. H.A. Ansari of imported goods seized from his premises and seizure of currency said to represent the sale proceeds of the smuggled goods. Even then so far as the seized goods are concerned there was no point in examining their liability to seizure and confiscation any further in view of the time bar due to late issue of show cause notice and therefore the requirement of the return of these goods to Capt. H.A. Ansari. Of course in so far as the allegations relating to his involvement in the illegal export of charas and hashish is concerned, there is no reason to disbelieve the evidence of the Canadian Customs and the learned DR s argument that the wealth of information contained in the statements which was beyond the figment of the imagination of the local Customs Officers is corroborated by the action and statement of the Canadian authorities and the Hon ble Magistrate himself has taken this evidence into account and relied upon the same in his judgment to pronounce Capt. H.A. Ansari guilty. 45. While the Learned Counsel is correct in stating that the prosecution proceedings are independent of adjudication proceedings, the fact remains that the same material or evidence h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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