9911796707
TMI Blog1996 (8) TMI 308X X X X Extracts X X X X X X X X Extracts X X X X ..... n checking his bag, 31 bars of foreign marked gold of 10 tolas each pasted on thermocoal sheet with adhesive tapes from inside specially made cavities in between two bottom layers of the VIP suitcase were recovered. A statement was also recorded thereafter from the said Mahesh Verma who, inter alia, stated that the gold was given by him the previous night at Rajasthan Guest House in Calcutta by a person known to him by face who belonged to Shri O.P. Kulthia, the Appellant herein. He also alleged that the Appellant herein was indulging in gold smuggling and he was delivering the gold given by the Appellant to various places in Calcutta, Bombay and Madras. In other words, he inculpated Shri O.P. Kulthia, the Appellant herein for smuggling in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gher penalty of Rs. 2 lakhs. 1.4 Hence this Appeal before the Tribunal. 2.1 Learned Counsel for the Appellant Shri S.K. Roy submits that the authorities have entirely relied upon statement of Mahesh Verma for imposing penalty on the Appellant. He submits that the statement of Mahesh Verma cannot be relied upon for it contains material falsehood which have been admitted by the Department in its own show cause notice. For example, he submits that Mahesh Verma held himself out as a bachelor in his statement dated 21-5-199l whereas in the sworn affidavit before the Chief Metropolitan Magistrate, he stated that he had a wife and a child. It was also found that the Hotel in Bombay viz. Adarsh Hotel where he was stated to have stayed was also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be relied upon for the purpose of convicting the appellant. It has been further held by the Apex Court that testimony of an accomplice cannot be accepted in any material particular in the absence of corroboration from reliable sources. He points out that in this case also, the accomplice had incriminated himself apart from incriminating the accused. In this connection, we reproduce below Para 24 of the said report : 24. Coming back to the evidence of PW 2, there is yet another circumstance which he proves and which merits some consideration. According to the witness, in the special leave petition filed by PW 1, 12th March 1976, was fixed for screening the film. The witness adds that he took instruction from A-1 as to what should be d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ness in court in which the entire blame is shifted to A-1 but which again runs counter to an assertion made earlier by the witness in his own hand. That assertion appears in the form of an amendment to a draft of a letter (Ext. PW 2/DE) to be sent to Mr. V.P. Raman, Additional Solicitor General and reads : `In spite of efforts the film has not been found . The witness admits clearly that this statement was false to his knowledge. A witness who could go to the extent of making intentionally false statement cannot be relied upon for the purpose of convicting the appellant. On his own showing, he was fully collaborating with A-1 in a criminal design and was therefore, no better than an accomplice whose testimony cannot be accepted in any mater ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is also on record that despite two searches made on the Appellant s gaddi cum shop and on his residence on 29-5-1991 and 1-8-1991, nothing was recovered. No incriminating document was also recovered. We also observe that there is no material corroboration of the statement of Mahesh Verma on which the adjudicating authority has also relied. Apart from that we find a lot of force in the argument of the learned Advocate that in view of the falsehood in the statement of Mahesh Verma in several material particulars as given by him by way of examples above the statement of the said Mahesh Verma cannot be relied upon. In this connection, the reliance placed by the learned Advocate on the aforementioned case of Delhi Administration v. V.C. Shukl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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