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TMI Blog1997 (3) TMI 304X X X X Extracts X X X X X X X X Extracts X X X X ..... eign origin were recovered from the floor area inside the shop premises and four pieces of gold biscuits of foreign origin were recovered from side pocket of Ruhidas Dutta s trousers. The appellant herein, who initially denying to possess any contraband but on thorough and prolonged interrogation, admitted to have six gold biscuits concealed in his rectum. Subsequently, Shri Karmakar (the appellant herein) ejected 2 (two) rubber condoms from his rectum, on opening of which each was found to contain 3 (three) pieces of gold biscuits, each biscuit weighing ten tolas. From inside one pocket, one piece of paper containing some writing signed by one Gobind Chandra Dutta, was also recovered. The search also resulted in recovery of Rs. 1,60,000/- Indian currency - from a secret chamber in the safe deposit vault in the shop. This amount was admitted by the Ruhidas Dutta to be the sale proceeds of smuggled gold. Gold was assayed by calling a gold smith from some other shop and found to be 24 carat purity. Search-list was prepared and completed at 15.30 hrs. Copy was given to each - Ruhidas Dutta and the appellant. They were also asked to appear before the Superintendent of Customs on 1-2- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of statement under force, threats and coercion from Bidyut Kumar Dutta was enquired into but found to be false allegations in the said letter were denied by the office of the A.C., Customs, Barasat. 1.9 On the above facts and allegations based thereon, a show cause notice was issued to all concerned including the appellant herein. 1.10 Collector of Customs (Preventive) has adjudicated the case. He has confiscated the gold and Indian currency of Rs. 9,47,300/-. He has also imposed personal penalities of Rs. 10,000/- only each on Ruhidas Dutta, Bidyut Kumar Dutta and the appellant herein. He has imposed penalties of Rs. 5,000/- only each on Gobind Ch. Dutta and Jogesh Ch. Dutta. 1.11 It may be mentioned here that Ruhidas Dutta and Bidyut Kumar Dutta did not submit either any reply to show cause notice or appeared for personal hearing. Therefore, confiscation of gold and currency did not pose any problem before the adjudicating authority since liability to confiscation thereof was not disputed. Other persons disputed their liabilities and involvement in the case. In the appeal before me, dispute is about the penalty of Rs. 10,000/- imposed on the appellant Deben Karmakar. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itnesses have to be respectable persons of the same locality. In view of the foregoing submissions, he submits that the entire case has been foisted on the appellant. There is no case for imposition of any penalty on the appellant. 3.1 Ld. JDR, Shri R.K. Roy submits that the retraction is too belated to be considered genuine. It is merely an after thought. Evidence against the appellant is his own confessional statement corroborated by the statements of other co-accused. Penalty imposed is highly reasonable. 4.1 I have carefully considered the pleas advanced from both sides. Two questions of facts, namely, (i) Whether six biscuits of gold have been recovered from the appellant after he ejected the same from his rectum in the shop, and (ii) Whether the statement recorded from him on 2nd and 3rd February, 1991 is voluntary or under coercion and duress, are required to be determined by me. 4.2 I observe that brief outlines of the evidences annexed to the show cause notice is quite detailed and gives an almost blow-by-blow account of the various events that have occurred in this case. Yet it leaves many things unsaid as pointed out by the ld. Consultant. The appellant, al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds. The statement of this accused recorded on the next day is of no consequence. These statements thus show that the accused admitted that the goods were smuggled and of foreign origin. They had no personal knowledge about the origin of the goods or that they were smuggled goods. It is not even the prosecution case that these two accused imported these goods in India. They must have only felt from the markings that the goods were smuggled goods. Any such confessional statement made on the basis of the markings is not of any consequence because the accused are laymen and they cannot, on seeing the cloth, say whether they were smuggled goods or of foreign origin. In absence of any other evidence on record, the confessional statements of these two accused cannot advance the case of the prosecution any further to show that the goods were smuggled goods. There was also delay in recording their statements, in that even though the search was carried on 26-2-1976, the statements were recorded for the first time on 28-2-1976. No reasonable explanation is given by the Superintendent for not recording the statements of these two persons at the earliest. It appears that they were in custody of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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