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TMI Blog1994 (7) TMI 208X X X X Extracts X X X X X X X X Extracts X X X X ..... e place near Jama Masjid, at the instance of one Arif Bhai, who had told him that the said amounts were the sale proceeds of smuggled wrist watches. The said currency was therefore, seized under a reasonable belief as liable to confiscation under the Customs Act. 2.2 Statement of the appellant was recorded vide Section 108 of the Customs Act, 1962 on the same day i.e. 20-3-1985, where, while writing down the statement in his own handwriting, he stated that he was an agriculturist at Diva in Bharuch District and was staying there, but was also assisting one Ibrahim Manga, who worked as Passport Agent in Bombay. He then stated that he came to Bombay on 20-3-1985 in the morning at 5.30 A.M. and met said Ibrahim Manga, and with him, went to Nariman Point at an Airlines office, to book a ticket for some one, and then went to Panchratna Building at Opera House, where one Arifbhai had his office in Room No. 114. As stated by him, one Maqsood was sitting with Arifbhai and there Arifbhai told him to go with Maqsood and collect money from the person which Maqsood would point out. He also stated to have been told that Rs. 5,50,000/- to be collected were the sale proceeds of smuggled wrist w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 6-4-1985 and 23-4-1985 to the Additional Collector, appellant again retracted from his earlier statement. 2.8 Maqsood named by the appellant was not traced. 3. Show Cause Notice, dated 11-7-1985 was served on the appellant, Saiyed Arif and others, to show cause against confiscation of currency vide Section 121 of the Customs Act, 1962, and imposition of personal penalties, vide Section 112 of the said Act. Whereas the other noticees denied the allegations levelled against them, the appellant vide his reply dated 14-10-1985, to the Show Cause Notice, came forward with the plea that the Indian currency belonged to Madress-e-Nurul Islam, at Village Div, and the foreign currency belonged to him. He stated that the amount was collected for construction of a building to impart religious education and the receipts were also issued to the donors. He also referred to some correspondence in that regards. 4. Adjudication proceedings were conducted, and at the conclusion, while foreign currency was released, and no personal penalty was imposed on Saiyed Arif Saiyed Umer, and proceedings against Maqsood were kept in abeyance, the impugned order was passed against the appellant. 5. Mr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... smuggled goods, positive evidence is adduced by the appellant to prove that they were the collections of donations for Madress-e-Nurul Islam. He has referred to certain letters written by the appellant as also the letter from the institution to the Customs authorities. In his submission, thus, not only that the amount is not proved to be the sale proceeds of the smuggled goods but are proved to be the collection for Madress-e-Nurul Islam, and hence the same be released. 6. Mr. Harnek Singh, the Ld. JDR has however, supported the order and has pleaded that the appellant has, in his statement recorded immediately, disclosed the amount seized to be sale proceeds of smuggled wrist watches, and has come forward with the plea of money belonging to Madressa at a very late stage. He submits that the details given in the initial statement coupled with the way in which he was concealing the currency in the fruit packet, at a place, which could not be taken as the one which a person with ordinary prudence would select, provides corroboration to his plea that he collected the money from an unknown person and was immediately trying to conceal them. He pleads that thus the conclusion drawn by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndian currency neatly packed in paper packets, were being put in an empty fruit basket, at a fruit stall of a person not known to the appellant, which very much indicated that the appellant was making all efforts to conceal them as quickly as possible. All these factors taken together would clearly give rise to a suspicion, which when stood coupled with a statement as incorporated in the panchnama itself, would obviously give rise to a reasonable belief in the minds of any person with rational thinking that the currency might be liable to confiscation under the provisions of the Customs Act. While effecting seizure, the evidence should exist to give reasons to believe, and not to draw any positive conclusion in that regard. Further, the concept of reasonable belief is always coupled with the subjective satisfaction of the party catering such a belief. It is also a settled proposition of law, that when an element of subjective satisfaction is involved, the appellate authority should not interfere with it, unless it is established that such a reasonable belief was allegedly catered without any data whatsoever, even if the appellate authority feels that they might have drawn a differe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant also has at no time prior to filing his reply to the Show Cause Notice, made even a whisper that the seized currency was the donation for the religious institution of which he was the President. In none of the three statements, he has said so. Not only that, but in the applications dated 22-3-1985, filed before the Additional Chief Metropolitan Magistrate, dated 23-4-1985 and 6-4-1985, filed before the Assistant Collector (P), Bombay, he has claimed the money as belonging to the Institution. All the three applications are submitted when the appellant was admittedly not in Customs custody. All the three are typed written, and relate to his retraction from the statements recorded vide Section 108 of the Customs Act. The phraseology used gives a clear indication that the applications have been drafted under legal advice, and it cannot be implied that he was working under fear and did not remember this basic fact; which ought to have flown as spontaneous reaction, if the amount really was the donation collection for the religious institution. 10.5 It also remains unexplained, as to if they were the donation collection, spread over for a period of months and of different amoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 It then requires to be considered as to whether the seized amount could be taken as the sale proceeds of smuggled goods so as to attract the provisions of Section 121 of the Customs Act. 11.2 The allegation is that the amount seized is the realisation of sale of smuggled wrist watches. It is also alleged that the appellant under the instructions from one Arifbhai, went near Jama Masjid and some unknown man pointed out by one Maqsood, handed over the seized currency notes and the appellant was apprehended while attempting to conceal them in the fruit basket at the nearby Crawford Market, (Mahatma Phule Market), by the customs officers, who had kept a watch because of previous intimation received by them. 11.3 Arifbhai, has in his statement denied his association or having instructed the appellant to collect such amount. Maqsood has not been found, and thus, the only evidence that remains on record is the statements given by the appellant. The appellant claims to have retracted therefrom. 11.4 The Ld. Advocate for the appellant has, relying upon certain judicial pronouncements, submitted that the statement before the same is relied upon, ought to be proved to have been volunt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ea that biodata given by the appellant is not correct, and his contacting Ibrahim Manga and going with him (Ibrahim) upto Panchratna Building via Nariman Point has been corroborated by Ibrahim Manga in his statement also recorded on 20-3-1985. Presence of Ibrahim Manga is also shown in the panchnama. Thus, that part of the statement of the appellant gets corroborated. Further, this part of the statement is not vital to the issue for determination, and if the statement was the one extracted under compulsion, the officers would not have known these details, nor would they be interested in recording them, if they had desired to falsely implicate the appellant. There is also nothing on record to show that the officers knew Ibrahim Manga or Arif Bhai or Maqsood. Further, the appellant has given the name and complete address of the business premises of Arifbhai. There is also no allegation that the Customs officials knew Arifbhai or that they had any specific reason to implicate him. Whatever is stated by the appellant about Arifbhai, therefore, does not appear to be the result of compulsion enforced by the officers on the appellant to fabricate a story of the type that he has given. Mor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f beyond all reasonable doubt, are not attracted and determination has to be done whether the allegation is reasonably proved. It is not that the entire burden would lie on the prosecuting agency. The noticee too, is supposed to probabilise his defence plea. 12.2 There is no denial to finding of the currency. The plea that the same are the collection for Madress-e-Nurul Islam is held as not proved. 12.3 Though Arifbhai has even denied knowing the appellant, the appellant has given his full name and address and there is nothing to show that he was interested in implicating Arifbhai without any purpose. 12.4 Visit of the appellant to Panchratna Building where Arifbhai has his office, is admitted by the appellant and is corroborated by Ibrahim Manga. 12.5 There is no dispute that the appellant was packing the currency notes in a fruit basket at the fruit vendor s stall at Crawford Market, indicating that (a) this could not be the currency brought from home for packing in a basket in an open place like fruit vendor s stall, more particularly when the fruit vendor was an unknown person, (b) there was an urgent need to conceal the said currency, (c) concealment was to be done in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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