9911796707
TMI Blog1996 (12) TMI 243X X X X Extracts X X X X X X X X Extracts X X X X ..... y 13. Rs. 1,000 Sh. Narayana Soda Factory 14. Rs. 1,000 Sh. Jaya Pujari 15. Rs. 1,000 Sh. Aboobacker Boda 16. Rs. 1,000 Sh. Gangadhar Suvarna 17. Rs. 1,000 Sh. Farooq 18. Rs. 1,000 In the adjudication order, he held that there are no grounds to proceed against S/Sh. Raghunath C. Kotian, Chadok Ammanna M/s. Hari Om Enterprises. 2. The brief facts of the case are that the officers of DRI Mangalore acting on credible information that a truck bearing regn. no. KA-25-1254 carrying contraband silver bricks would be going towards Indore after passing through Karkala from Padubidri side on 8-3-1992, morning around 9 a.m., the officers of DRI proceeded to the spot accompanied by witnesses and waited at the junction on the road from Pedubidri to Karkala on 8-3-1992 from 8.15 a.m. onwards. They started checking all the lorries passing on that route. Around 9.15 a.m. on that day a truck with brick coloured front cabin was seen coming from Padubidri side and moving towards Karkala. Immediately, the officers gave signal to the driver of the said truck to stop which was complied by him. After verifying t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning tools at the two ends of the corner was seen. The said rexine covering was detached from the wall by removing all the peripheral aluminium beading. Beneath this rexine covering there was a jute coloured cushion padding with loosely knit jute cloth at the bottom, pasted to the wall of the said cabin. This cushion padding was also removed along with the jute cloth and it was noticed that the cabin wall was made of plywood of about 3/4" thickness. These plywood sheets had been fixed with the help of screws to form a perfect wall. 4. In the centre of the said plywood wall, it was noticed that there were three distinct rectangular shaped plywood planks fixed with screws. When the screws were removed these plywood sheets came out showing a distinct cavity in which certain heavy objects, packed in wet and sand soaked gunny bags were nearly stacked. The plywood wall had been constructed on a pre-fabricated iron structure welded to the body of the truck. Some of the objects mentioned above were removed and it was found that the cavity was about 6" deep. The gunny covered object on examination was found to be having a handle for carrying purpose. One of the officers felt the weight of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Customs Act, 1962 and are liable to confiscation. The truck bearing regn. no. KA-25-1254 valued at Rs. 2 lacs which was used for transporting the smuggled silver under seizure was also seized under the provisions of the Customs Act, 1962 as the same is liable to confiscation. 6. After followup action, the Customs Officers of Mangalore seized one fishing boat Hari Om owned by Sh. Raghunath C.Kotian, valued Rs. 6 lacs as the same was used for transhipment of the smuggled silver under seizure from the mother vessel on the high seas of the shore. 7. The silver bricks under seizure had been tested for its purity by touch stone method at the time of seizure and later samples drawn from the seized silver were sent to the India Govt. Mint, Bombay vide DRI, Mangalore office letter OR No. 2/92 (DRI) dated 11-3-1992 and the General Manager, India Govt. Mint, Bombay after assaying the said samples had opined that the samples of silver and their finenesses are ranging from 998.9 to 999.3 vide his letter dated 9-4-1992. 8. Thereafter, the adjudicating authority granted personal hearing to all the respondents and imposed the above penalties on the respondents. But, he held that boat Har ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The learned Counsel, Sh. Lakshmi Narayanan, appearing on behalf of the respondent Sh. Abdul Khader, stated that the statement given by Sh. Abdul Khader is not a voluntary statement. Unless the statement is voluntary, the same cannot be acted upon. He however pointed out that in the beginning the appeal was filed mentioning Abdul Khader only as respondent. But later on, the deptt. filed other appeals and therefore, when the other respondents were not made original parties and when their appeals were barred by limitation, Abdul Khader alone cannot be proceeded with in view of the fact that it will be a discriminatory act. In this connection, we find that the deptt. in their appeal memorandum had prayed for enhancement of penalty on all the other persons. But while praying for such enhancement of the penalty in the cause title they mentioned only the name of Shri Abdul Khader. Later, they filed the names of other respondents and filed the appeals with COD applications. In the facts and circumstance of the case, we are of the view that non-mentioning of the names of other respondents are only technical in nature and since the appeal as a whole was directed against all the respondents, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the boat Hari Om is liable for confiscation and in the facts and circumstance of the case, absolute confiscation is warranted. We accordingly confiscate the boat Hari Om absolutely. 17. The next question for determination is whether the penalties imposed on the above said 18 persons who are arrayed as respondents are liable for enhancement. In order to find out this aspect we have to look into the nature of the offence, the manner in which it was committed and the value of the silver in question and the other attending circumstances. As far as Abdul Khader is concerned, he has given a statement to the effect that he has been doing smuggling for the last 25 years and he had worked for many smuggling gangs which are doing this work of smuggling. He has been working for a gang headed by Musthafa also known as Tiger Musthafa. He met Musthafa at Gujarat Coast and Musthafa told him that one consignment of 200 silver bricks would be reaching Indian coast on 7-3-1992 midnight. Accordingly, he met Mohammed and finalised the plan for landing the consignment which is seized in this case. He has also narrated how they did the above transaction in the dead of night. He has also stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0,000 on him is very inadequate and in the circumstances, we enhance the same to Rs. 5.00 lacs (Rupees five lacs). 20. As far as the imposition of penalty on Mohammed Ahmed is concerned, it is seen that he is a person working for a smuggling group and he is known as Tiger Musthafa, as could be seen from the statement of Abdul Khader and he has been sending gold and silver regularly to the Indian coast. This is disposed by Abdul Khader himself. He only told Abdul Khader about the arrival of the vessel on 7-3-1992 in the midnight. Therefore, he has taken a very active part and he is the person concerned in sending the silver and imposition of penalty of Rs. 50,000 is absolutely inadequate. In this view, we raise the same to Rs. 10.00 lacs (Rupees ten lacs). 21. The next question for determination is whether the penalty of Rs. 50,000 imposed on Sh. Dhiraj Hussain is required to be enhanced. It is seen from the statement of Abdul Khader that Dhiraj Hussain was informed about the landing of the vessel and he was asked to be ready with certain known persons of loaders at the landing spot. Therefore, he brought Kassim, Razack, Abbas, Ashok, Narayan and Jays for supervising the unloadi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he next question for consideration is whether any penalty is imposable on the Managing Director. The Managing Director of M/s. Hari Om Enterprises is Sri Chadok Ammanna. Nobody has given any statement implicating him directly. Merely because he is a Managing Director it cannot be said he is liable for penalty. Unless it is shown that he was actively involved in the smuggling operation, he cannot be penalised. There is no statement of any witness or of this respondent to show that he knowingly allowed his vessel for smuggling operations. In these circumstances, we confirm the finding of the adjudicating authority that he is not liable for penalty. 25. The learned Counsel for the Syndicate Bank has stated that with the finance obtained by the bank the vessel was purchased by M/s. Hari Om Enterprises. Therefore, the bank has to recover the dues from M/s. Hari Om Enterprises and if the boat is confiscated they will not be able to release the amount. But this argument has no force. The reason is once it is found that this boat is liable for confiscation in view of the fact that it was used for conveyance of the smuggled goods, then the same has to be confiscated. The fact that the ban ..... X X X X Extracts X X X X X X X X Extracts X X X X
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