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TMI Blog1995 (4) TMI 160X X X X Extracts X X X X X X X X Extracts X X X X ..... door of the toilet, one person bending near the waste bin and concealing something therein, and who, on being requested to identify that person amongst the passengers, who were still in the Customs Baggage Hall, identified the appellant as the said person. Besides, seizure of the gold, the appellant was detained, and his statement vide Section 108 was recorded, on the same day, where, after giving family history, he stated that since 1970 he was frequently visiting Dubai and was bringing articles from there and was selling them in Bombay and during his such visit in January 1987, he met one Mohammed who was reportedly sending gold to India through courriers, and enquired whether he (appellant) was interested and offered Rs. 3000/- as compensation, and on his agreeing to the same, who told that he (the appellant) was to take gold on British Airways flight via Behrain to Bombay, and had to keep the gold in dustbin of the left hand side toilet in the first class. The appellant also stated that said Mohammad told him that some one would contact him (appellant) at his residence in Bombay, and would introduce him to two persons working at Bombay Air Port, and that those two persons would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o crew members also put their signatures. In their respective statements recorded on the same day, both Anandanarayanan and Waghmare, though denied their involvement, admitted to have been duly identified by the appellant. Further statement of the appellant was recorded on 31-3-1987. The appellant vide his application dated 3-4-1987 filed before the Metropolitan Magistrate, however, retracted from his statements recorded by the Customs Officers, and alleged torture and compulsion and denied his involvement. 3. On completion of the investigations, show cause notice dated 10-8-1987 was served on the appellant and the other two persons, and all the three denied the allegations levelled against them. In the adjudication proceedings that followed vide the impugned order, whereas the other two were exonerated, besides ordering absolute confiscation of the gold, to which none had even otherwise lodged any claim, the appellant was imposed penalty of Rs. 40,000/- vide Sections 112(a) and (b) of the Customs Act, 1962. 4. Mr. J.B. Raichandani, the Ld. Advocate for the appellant, has submitted that in the criminal prosecution initiated, the appellant has been acquitted, and the said aspect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and ought to be discarded as an afterthought. He also pleads that even otherwise, enough corroboration is available from the statements of two other co-noticees, as well as the surrounding circumstances, so as to base reliance on the so-called retracted statements of the appellant. In his submission, there is no ground made out to interfere with the order of the adjudicating authority. 6. Considering the submissions, and going through the record, the finding of two packets containing gold biscuits with the marking of foreign origin, from the specific toilet in the aircraft of British Airways, which landed at Bombay on 17-2-1987 at about 1230 p.m. as flight No. BA 139 on London-Bahrain Bombay sector, is not under any dispute. The appellant has also not challenged that he travelled as the passenger in the first class by the same flight, and had boarded the Aircraft at Bahrain. There is also no denial, and even otherwise it is established from the entries in the passport of the appellant, that he had gone abroad on 14-1-1987 and had returned on 23-1-1987 and again gone on 28-1-1987 and returned on 30-1-1987 and once again gone on 28-2-1987 and had returned on 10-3-1987, and that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lication is in English, the same is signed by the appellant also in English. The signature of the appellant in the statements as also on CA-3 form filed before the Tribunal are also in English. Plea of illiteracy and/or knowledge of only Gujarati language is also not convincing and appears to have been advanced to escape from the liability that may arise out of his admission. The bona fide of the appellant in retracting from his statements, therefore, cannot be accepted. There is also no explanation as to what could be the motive for the customs officials to falsely implicate the appellant. 9. Under the circumstances, the said inculpatory statements themselves would provide sufficient evidence to draw a conclusion, and the plea that because of non-recording of the statement of the crew members and non- offering them for cross-examination, is of no consequence. 10. Even assuming that because of even such belated retraction given as an afterthought in an attempt to raise some defence, the statement or the inculpatory portion thereof need not be accepted unless there is corroboration on material particulars, there is enough corroboration available on record. 11. The appellants h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irms to the version given in his initial statement dated 17-3-1987. 12. Thus the circumstances, as indicated above, do lead to substantiate what the appellant has admitted in his statement dated 17-3-1987, the retraction of which is also, for the reasons as stated above cannot be accepted as the genuine one. 13. Admitting that it has only a persuasive value, the learned advocate has pleaded that in the prosecution under Section 135 of the Customs Act, 1962, the appellant has been acquitted. The law is clear that any finding in the Magistrate Court, cannot affect the adjudication proceedings under the other provision. The scales for appreciation of evidence in such trials are substantially stringent, and the benefit goes to the accused, on any lacuna. It appears that corroboration available from the circumstantial evidence, brought out hereinabove, presumably, was not projected there, and merely because on that account, if the trial has resulted into acquittal, the same could not prevent the adjudicating authority under the Act, from taking a contrary view. 14. In the result, there does not appear any justifiable ground to differ from the conclusion drawn by the authority belo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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