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TMI Blog1999 (5) TMI 311X X X X Extracts X X X X X X X X Extracts X X X X ..... empo. On exchange of fire on both sides, the smugglers ran away. The officers seized 113 silver bricks weighing 3541 kgs. valued at Rs. 2.48 lacs as also the tempo in which the bricks were loaded. A motorcycle standing by, a double barrel gun with cartridges, some clothes and documents wero also seized. S.B. Kolambekar, who claimed ownership of the tempo is the first appellant. In the impugned order the silver bricks were confiscated. The tempo and the motorcycle as well as the double barreled gun were confiscated. The tempo was allowed redemption on payment of fine. A penalty was imposed upon Kolambekar. Shri Gopal Rama Chougule the second appellant was also penalised in the impugned order for the illegal importation of the silver. Kolambe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the deposition of R.S. Ghanwat Inspector that he takes 2.00 hrs. to travel the distance between Dapoli and Anjarala by vehicle. Shri V.R. Thorade, Superintendent in his deposition claimed that he did not see Kolambekar on the spot when he reached there at about 3.30 a.m. on 30-1-1991. Kolambekar in his statement claimed that in the morning of 30-1-1991 he had gone to the police station at Dapoli to lodge the complaint about loss of his tempo. It is his claim in the statement that some persons had hired his vehicle for carriage of wood but that they had forced him to get out of the tempo and had taken away the tempo forcibly. It is for this reason he had gone to the police station to lodge the complaint. But instead the police arrested him a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oli Police station. The reasons why the police brought him back and handed him over to the customs have not been disclosed in the proceedings. Kolambekar s statement is exculpatory. He was not seen by any person in the vicinity of the smuggled silver. No officer of customs has diposed seeing Kolambekar in the vicinity of the tempo loaded with contraband. 7. The language of Section 112 of the Customs Act, requires it to be shown that the person charged with the penalty there under has committed or omitted to do any acts rendering the goods liable to confiscation or has performed certain actions knowing that the goods are contraband. In the present case there is no evidence to establish that Kolambekar was concerned with the carriage or rem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confiscation was therefore an adjuged under sub-section (2) of Section 115 of the Customs Act. Such confiscation cannot be adjudged where the owner the agent or the person incharge proves that the vehicle was used without their knowledge or connivance. I have earlier held that Kolambekar s involvement in the smuggling of silver has not been proved. The person incharge at the material time was the person who had deprived Kolambekar of the use of the vehicle. The phrase person incharge used in the said section has to be interprete to mean a person who was lawfully incharge. In a case where the tempo is highjacked the confiscation thereof cannot be adjudged on the observation that the highjacker was the person incharge and that he had used t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d against Chougule. 14. Shri Gopal Rama Chougule residence was searched but nothing incriminating was found. 15. Gopal Rama Chogule in his statement recorded on 3-4-1991 stated that he was at Anjarle on 25th January but went back to Bombay on 26th January. It is his claim that he was at Jejori on the night of the event. The Controller of the S.T. Depo in his deposition before the Collector stated that three seats were booked in Gopal Chougule s name on the bus to Bombay on the night of 26th January. This independent corroboration supports the exculpatory statement of Chougule. 16. Two statements go against Chogule. Kolambekar has initially stated that Thomas was introduced to him by Gopal. This claim was later retracted by Kolambekar. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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