9911796707
TMI Blog1996 (4) TMI 310X X X X Extracts X X X X X X X X Extracts X X X X ..... n received, Truck No. PAT 1812 was intercepted on 25-3-1986. The occupants thereof were (i) Driver Darshan Singh, (ii) Conductor Lakha Singh, (iii) Gurbhaj Singh and (iv) Surjit Singh, both of whom were believed to be the local contacts. Search of the truck resulted into recovery of 360 Gold Biscuits with marking of Foreign Origin, and cloth hase having Pakistani markings, duly concealed in the Truck loaded with rice bags. As no plausible explanation was available, the Gold Biscuits and hase as also the Truck were seized. 3.3. Statements of driver Darshan Singh were recorded on 25-3-1986, 26-3-1986 and 16-5-1986, where he stated to have been employed as a driver by one Sukhvinder Singh the owner of the Truck PAT 1812, who had directed him to obtain orders from Seva Singh of Amritsar for day-to-day business for the Truck and on 20-3-1986, said Seva Singh told him (the driver) that the consignment of rice was to be taken to Bombay and had told him to go to M/s. Dash Mash Cargo Carrier and then load rice bags from M/s. Sachdev and Sons Mills at Amritsar. As stated by him, Lakha Singh the Conductor, come to his place at about 7.00 p.m. on 20-3-1986, and told him to go with him and wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igation, show cause notice was sent and adjudication proceedings were conducted where the impugned order was passed. 5.1. Mr. Pochkhanwala, the ld. Advocate appearing for both the appellants, has initially submitted that the Show Cause Notice dated 22-8-1986 was only under the provisions of the Gold Control Act, 1968 and hence penalty imposed under the provisions of Customs Act was bad in law and also referred to same case law. However when his attention was drawn to the fact that another notice of the same date was also issued under the provisions of the Customs Act, 1962, he has not pressed the said contentions. 5.2. Pleading for Seva Singh, the ld. Advocate has pleaded that it is only the driver Darshan Singh who has implicated this appellants, and said Darshan Singh has retracted the said statement. In his submission there is no corroboration to what Darshan Singh had initially stated. The ld. Advocate has pleaded that Seva Singh has produced documentary evidence, showing his presence at Chandigarh on the day he is said to have supervised the loading and there are statements on record, of Amrik Singh and Ghanya Singh, Serpanch, to the effect that Seva Singh could not be at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -3-1986. As regards Gurdev Singh, the ld. JDR, has pleaded that he has given a completely inculpatory statement and retraction is just an after thought. He pleads that the statement of Gurdev Singh gets corroborated from the statement of other two Notices, who could not be offered for cross examination, as they could not be compelled to testify against themselves. 6. Considering the submissions, and going through the records there is no denial to finding of the Gold from the Truck No. PTA 1812 and that the truck was owned by one Mr. Sukhvinder Singh and was at the relevant time driven by Darshan Singh, and Lakha Singh was the Conductor. There is also no denial that the Truck had came from Amritsar and when intercepted, Surjit Singh and Gurbat Singh were also in the Truck. 7. There is no challenge to the order of confiscation of gold or the Truck so far as these appeals are concerned, and the only issue involved is whether both the appellants or either of them was involved in transporting the foreign marked gold found from the same. The allegation is, that the loading of the contraband gold was done at the farm house of Seva Singh, and his son Gurdev Singh along with one Sukhvin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stand, makes his statement as not sufficient enough to base any conclusion when the other evidence adduced probabalises absence of Seva Singh, and also where his description about Seva Singh is rather different. Though some corroboration from the statement of Lakha Singh may be available, he speaks of loading of the gold by Sukhvinder Singh and Gurdev Singh, and describe Seva Singh as about 50 years old person. 8.4. Gurdev Singh has clearly implicated himself and has stated that Seva Singh was not involved. 8.5. Considering all the circumstances, therefore it becomes doubtful as to whether it was this appellant Seva Singh who was present at the time of loading of gold or was some other person, aged about 45 to 50 years, and with the evidence led making it probable that Seva Singh may not be the person who was present at the time of loading of the gold, the benefit of uncertainty should go to him. 8.6. Giving the benefit of doubt therefore, penalty imposed of Seva Singh, both under the provisions of the Customs Act, 1962, and the Gold (Control) Act, 1968 are set aside. 9.1. So far as Gurdev Singh is concerned, there is a clear admission on his part in the statement recorded ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
