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TMI Blog1999 (8) TMI 469X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the case briefly stated are that specific information was received by the Officers of the Directorate of Revenue Intelligence. They intercepted one Contessa Classic Car. There were two persons sitting in the Car, who disclosed their names as Wirsa Singh and Sarabjit Singh. Two Scooters - one LML Vespa and the other Bajaj Chetak were also found in the same premises. LML Vespa was in possession of Shri Ranjit Singh whereas Shri Naresh Kumar was having custody of Bajaj Chetak Scooter. Search of LML Vespa Scooter resulted in the recovery of foreign currency equivalent to Rs. 46,22,958.40 and search of Bajaj Scooter resulted in the recovery of Indian currency of Rs. 11,000/-. Search of Contessa Classic Car resulted in the recovery of foreig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s carrying out smuggled gold with one Khalid of Pakistan for the past many years; that he and Sarabjit Singh earlier took delivery of 50 gold biscuits and 110 gold biscuits and handed over the same to Ranjit Singh and Naresh Kumar and subsequently collected the sale proceeds from them for onward delivery; that he used to take gold biscuits and give foreign currency which was the sale proceeds of smuggled gold, that Sarabjit Singh used to accompany him in all transactions. 5. Shri Naresh Kumar in his statement admitted recovery of foreign currency equivalent to Rs. 60,14,002.40 from the intercepted vehicles. He admitted that he was working as a commission agent for silver; that he met Ranjit Singh 6 months back and accepted his proposal to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d before the Magistrate that there was no allegation in the Bail Application filed before the Magistrate to indicate that there was use of force and inducement or duress in recording the statement nor was there any report from medical authorities to support duress or torture. He had also held that retraction was not immediate but was after a gap of time. He, therefore, held that the statement was voluntary, true and corroborated, he imposed a penalty of Rs. 10 lakhs on Shri Wirsa Singh and Rs. 2 lakhs on Shri Naresh Kumar. This was in addition to confiscation of conveyances of these appellants. 7. Arguing the case, Shri R.S. Randhawa, ld. Counsel submitted that there was no material except the confessional statement of the appellant on wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cooter of Shri Naresh Kumar was found only having Indian currency, therefore, it was not liable to confiscation. He submitted that the allegation against the appellant was that he sold smuggled goods and procured foreign exchange as sale proceeds. He submitted that since foreign currency cannot be confiscated under Section 111(d) as acquisition possession, custody etc. of foreign currency is covered by the provisions of Section 8(1) of Foreign Exchange Regulation Act, 1973 and that the provisions of this Section having not been extended to Customs Act, 1962, therefore, confiscation under Section 111(d) of Customs Act of the foreign currency in the instant case was not sustainable in law. 9. Shri H.K. Saran, ld. SDR submits that the Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led gold and is liable to confiscation under Section 121 of the Customs Act, 1962. We have perused the various contentions of both sides and found that according to the admission of the appellants, foreign currency was the sale proceeds of smuggled gold. Some statements have been retracted, but retraction is belated one and therefore, cannot be given the status of evidence in the absence of any explanation for delay. We further, find that the appellant was produced before the Magistrate, no evidence has been placed before us to show that they had retracted the statement before Magistrate when they were freed for the first time. We have also seen the plea of cross examination. Cross-examination was not at all considered necessary as details ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that foreign currency was smuggled into India and was a contraband. Therefore, confiscation of Contessa Car is set aside. 13. We note that a penalty of Rs. 10 lakhs has been imposed on Shri Wirsa Singh looking into all the facts and circumstances and discussions above, we find that the penalty is on the higher side, the same is therefore reduced to Rs. 2.5 lakhs. (Rs. two lakhs and fifty thousand only). 14. In so far as the case of Shri Naresh Kumar is concerned, we find that foreign currency was recovered from the Scooter. Since there is no allegation of the foreign currency being smuggled into India, confiscation of the Scooter of Shri Naresh Kumar is set aside. Penalty on Shri Naresh Kumar is reduced to Rs. 50,000/- (Rs. fifty thousa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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