9911796707
TMI Blog1998 (3) TMI 365X X X X Extracts X X X X X X X X Extracts X X X X ..... I Officers, Bombay Zonal Unit, kept surveillance and intercepted the appellant on 26-8-1991 at about 2.30 p.m. opposite the building Kamdar Court at Principal Raosaheb N.M. Kale Marg, Dadar, Bombay 400028, and on his personal search recovered a heavy packet from his left hand side front pocket of his trouser worn by him. On scratching the surface of the packet it was found to contain yellow metal pieces believed to be gold. He was taken to the office, and after securing panchas, it was opened in their presence 25 foreign marked gold biscuits, each weighing 10 tolas, valued Rs. 12,53,975/- found in the packet was seized on the reasonable belief that they were smuggled into India; and hence liable for confiscation, under the panchanama. State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of gold of foreign origin, without any legal document. Para 19 and 20 of the impugned order are pointed out, and submitted Section 112(b) of Customs Act, 1962 is applicable, and personal penalty imposed is justified. 3. Point for consideration is whether the Appellant has made out sufficient and satisfactory grounds to set aside or modify the impugned order? Our finding thereon is in the affirmative. 4. Perused the impugned order, appeal memorandum, panchanama dated 26-8-1991, remand application dated 27-8-1991, and the representation of the Appellant to CMM IIIrd Court Esplanade, Bombay dated 27-8-1991 and the reply by Intelligence Officer, DRI, Bombay, show cause notice dated 9-1-1991 and reply of the Appellant dated 24-1-1992, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edabadi, Mr. Shaikh and himself reached the spot at 2.00 p.m. and informer, pointed out the Appellant, who was with them. He also was walking on Prof. N.M. Raosaheb Kale Marg, Opposite Kamdar building. Only officers were present then. There are no famous land mark, near the spot. Nobody was asked to act as Panch there. Normally, he gets the panch, a typed instead of writing by hand. Appellant was arrested after recording his statement, after panchanama which was over by 4.30 p.m. Suggestions that p was a passer by and he was innocent is denied. Mr. Ahmedabadi in his cross examination has deposited statement was started at 4.00 a.m. and heading was written by Shaikh, when the statement of Appellant was recorded, nobody else was present. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and found to be yellow metal. On the other hand it is the theory of the department that since interception was in a crowded area and it was not feasible to draw panchanama. Even if it is accepted, it shows that interception of the appellant with gold of foreign origin could have been supported by the independent evidence, which is sidelined. As argued by the learned Counsel for the Appellant, the Section 108 statement of the Appellant, which is retracted before the jurisdictional magistrate,. when produced, is a weak evidence to be solely relied upon to impose the personal penalty under Section 112(b) of the Customs Act, 1962. Panchanama drawn in the office, after collecting the Panchas of the choice of the officers can not be an independen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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