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TMI Blog1998 (9) TMI 301X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of the Customs Act, 1962 and also Gold (Control) Act, 1968, seeking confiscation of the gold and imposition of penalty upon Charanjit Kumar. After hearing, the Additional Commissioner passed the order releasing the Indian currency, confiscating the gold and imposition of combined penalty upon Charanjit Kumar under both the Acts. The Commissioner (Appeals) having upheld this order, the present appeal has been filed. 2. I have heard Shri J.P. Kaushik, ld. Advocate and Shri T.A. Arunachalam, ld. DR I have also seen the cited judgments and the various documents on record. The two panchnamas and the assay report indicate recovery of primary gold without any markings. An assayer assayed the gold on 6-5-1989. His finding is that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the entire exercise loses its thrust and becomes an un-reliable piece of evidence. Therefore, on the basis of the assay report, it cannot be held that the primary gold was of foreign origin. 4. In the statements of the appellant, made on the date of seizure as also on the next day, the admission was made that the gold was melted from smuggled gold acquired from two persons, namely. Sham Kumar and Siyaram. Both these persons, in their statements, have denied having given any foreign gold to Charanjit Kumar. Charanjit Kumar's confessional statements were retracted orally by him when he was taken before the Magistrate on 7-5-1989. Shri Kaushik, ld. Advocate stated that on the complaint of torture having been made, the ld. Magistrate had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e-member judgment of the Supreme Court in the case of K.I. Pavunni v. A.C. reported in 1997 (90) E.L.T. 241 (S.C.) = 1997 (18) R.L.T. 641 in which the Court had taken cognizance of the cited judgment in the case of Surjt Singh Chhabra and laid down the procedure to be followed by the Courts in dealing with retracted confessions. 7. The Supreme Court in the judgment in the case of K.I. Pavunni in paragraph 25 observed as under : "25. It would thus be seen that there is no prohibition under the Evidence Act to rely upon the retracted confession to prove the prosecution case or make to the same basis for conviction of the accused. The practice and prudence require that the Court could examine the evidence adduced by the prosecution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cal examination to be conducted. The medical report suggests that the present appellant received physical injuries approximately at the time when he was making the confessional statement. Therefore, his claim that the statement was obtained by force cannot be lightly disregarded. 9. In the cited judgment, in the case of K.I. Pavunni the Supreme Court had observed as to how the burden shifts from the prosecution to the accused in the case of retraction of confessional statements. Briefly stated that the judgment shows that where the retracted statement is proved by any corroborative evidence then in spite of its retraction it has high degree of value and that the burden to prove that the statement is obtained by threat shifts to the ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the smuggled origin of the gold has not been proved. The orders of confiscation thereof under Section 111 and 120 of the Customs Act therefore, do not sustain. Consequently, the orders imposing penalty on the appellant under the Customs Act also do not sustain. 12. The show cause notice alleges contravention of Sections 8, 11, 16 and 27 of the Gold (Control Act). These provisions, inter alia, relate to possession of primary gold, making primary gold, declarations and dealing without licence. Shri Kaushik claims that the gold was carried on behalf of the licensed dealer, who had maintained the accounts of the origin of the seized gold, that the registers had been examined and checked by the jurisdictional Gold Control Officers and th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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