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TMI Blog2001 (2) TMI 688X X X X Extracts X X X X X X X X Extracts X X X X ..... points of the building. At about 8.15 a.m. they saw the appellant going out of the building and on being called by the officer ran inside the building towards toilet and entered and bolted the door from inside. The DRI officers watched the same, and intercepted the appellant as soon as he came out. He was taken back again to the same toilet where two wet cloth packets were found lying on the floor of the toilet. In the presence of panchas on questioning, appellant admitted that packets contained 120 gold bars; 60 gold bars in each packet, and he had removed the same from the above aircraft when parked in the hangar, after arrival from Muscat. On the personal search of the appellant key bunches of personal locker No. 5/21 and car were found along with a few documents and Indian currency of Rs. 12,000/- and recovered from him. He was arrested and statements under Section 108 of the Customs Act of the various persons were recorded as follows namely, the statement of the appellant, M.K. Chawda, A.C. Jain, A.V. Ingale, A.J. Mehta. The appellant was produced before the additional CMM on 7-2-1990 and he was remanded to judicial custody till 21-2-1990 and detained under COFEPOSA till 22-2- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the premises. Statement of Ghulam Khan was recorded and so also his son Mehmood Khan who looked after the video land shop in the ground floor wherein the above telephone number was installed. The statement of the manager Mehmood Azizudin was also recorded, who also said there was no person by name Mohan employed or working in the shop and any person by the name Mohan, being a shop might have called through that phone and none of them, that is, himself or his colleagues have ever received any message or given message for Mohan, as sometimes people come and make calls on paying Rs. 3 per call. Car No. MAF 3136 was in the name of Satar Ansari Mohd. and the address of the registered person was found to be a fictitious one. Three respective samples of the gold seized were sent to the Government of India mint on 9-2-1990 by the Asst. Director DRI, Mumbai and there is a letter on 12-2-1990 certifies that were received showing the purity of samples 999.0 999.1 and 999.0. 2. In the course of the investigation, in a case of seizure of 1400 bars of gold weighing 1400 bars valued at Rs. 4,98,15,650/- from one Car No. MH-15A-12 intercepted at Panvel on 25-3-1990, two persons Amir Shad Khan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m Jagdish and he had contacted the friends of Jagdish on telephone of the said room and had requested them to look out for Jagdish or his car. He identified Jagdish from the photographs of his identity card. 3. Importation of gold into India without the general or specific permission of the Reserve Bank of India (RB1) is prohibited under Section 13(1) of Foreign Exchange Regulation Act, 1973 read with Government of India, Ministry of Finance, Notification No. 12/(II)1/48, dated 25-8-1948 (as amended). Under Section 67 of the said Act, this prohibition is deemed to have been imposed under Section 11 of the Customs Act. The gold under seizure appears to have been imported without any general or special permission of the RBI that is liable to confiscation under Section 111(d) of the Customs Act, 1962 as amended. The cloth package used for packing the said gold is liable to confiscation under Section 118 of the Customs Act, 1962 as amended. The car used in the transport of smuggled gold is liable for confiscation under Section 115(2) of the Customs Act. The gold was covered under Section 123 of the Customs Act at that relevant period and the burden that the seized gold was not smuggl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turned the show cause notice as it was addressed to Mohan. Copy of the show cause notice was given to Mr. M.A.H. Solkar, advocate who submitted reply on behalf of Abdul Khan. Mr. V.M. Advani, advocate for the appellant on 4-12-1990 forwarded an affidavit and application of his client seeking directions to Air India to give inspection and/or certified copies of log book entries of 6-2-1990 from 3.38 hrs to 8.48 hrs. showing the names of persons, designation, time in and time out who entered VT-EFJ and Air India security crafts pocket showing the position of the above aircraft with respect to time of 6-2-1990. The above documents were not relied upon in the show cause notice nor in possession of the Department. Summons was issued to Air India for the said documents, who had replied by the letter dated 17-7-1991 that in spite of the best efforts, they were unable to locate the relevant aircraft entry register of VT-EFJ and produced the security guard s pocket diary showing various required information, which was given to the appellant s counsel. They were directed to submit reply as to all the available documents were shown to them for which the counsel by the letter dated 21-10-1991 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the aircraft and kept in the pant pocket by the appellant, naturally green muddy solution must have sticked to them and to the hands of the appellant. There was no such stains and the pant was shown to be wet. The cross examination portion does not give the said picture though reasons are shown. The log register entries are not given. The statement in the show cause notice is retracted and no cross examination of the said persons are given. The statement of Abdul N. Khan co-noticee has no corroboration. There is no identity of the appellant by him in person even though both were in custody. Written submissions filed in this case clearly supports his contention making the improbability of the Department s case. As per the evidence available, the appellant was to get Rs. 100/- commission for gold biscuit. On the calculation of the product in the chits A, B and C shows in terms of 1.47 crores and odd that pertains to the affairs of Ingle. The valuation of smuggled gold 5,75,00,000 for 1714 kg. This discrepancy is not answered. Such a huge quantity cannot be carried in the pant occupied the toilet pit. Case laws are pointed out in his written submission filed before the Commissioner. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cross-examination on insufficient grounds is as per 1982 (10) E.L.T. 386 (para 7) wetness of packets and pant, and presence of chemical, appellant must have put it. Panchanama is clear. Location of car parked outside was at 30/40 feet distance only from the person. There is no reason why appellant was involved in this case. In the reply arguments, appellant has urged that car was at 230 feet distance as per the sketch, away from the building. Uncorroborated say can not be relied on. Cross examination of Panda shows he was near parking lot. When all points were kept surveillance it was difficult to go there, after coming to the car. He was not wearing the pant, nor carried gold therin. Sketch shows toilets, within 40 feet, in the corridor right side. Panchanama is silent. Car parked can not be seen from there to get free passage. Departmental enquiry has failed against him. Appellant dismissed on the basis of impugned order was set aside by Industrial Court. In written submission filed, test of chemical on the pant is questioned. Circular was issued to check the entry of staff by maintenance of log book. 7. Point for consideration is whether there are sufficient and satisfactory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o had wide leather black belt. Appellant admitted before panchas that- He had removed these two cloth packets containing gold bars from the toilet of the maharaja class of the aircraft kept them in the pockets of the pant which he was wearing and then came down . Since the packets which were removed from the toilet were wet even his pant pockets had become wet . DRI officers brought the appellant from NITC building to the Air intelligence is unit office situated in NIPT building module II. These packets were cut opened in the presence of panchas. Packet No. 1, on being cut opened, was found to contain 60 yellow coloured metal bars purported to be gold of the foreign markings (Credit 999.0 SWISSE) 10 Tolas- Fortune on one side, and blank in reverse. Packet No. 2 was cut opened and was found to contain 60 yellow coloured metal bars proposed to be gold of the following foreigns markings : (i) 22 bars of the same marking as shown above (ii) 24 bars of the foreign marking of as shown overleaf on the observe Swiss Bank and reverse blank. CORMRATOND 10 Tolas (iii) 14 bars of the following foreign markings Reverse Blank SUISSE 10 Tolas 999.0 obs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e shifts. On the night of 5/6 February, 1990, he was in third shift from 2130 to 630 hrs. and he was to attend the maintenance part of the job in respect of Flight No. AI 830 which arrived from Muscat, Delhi to Mumbai at about 3.38 a.m. When the aircraft was parked at bay No. 45 he observed the officers near the plane and some of them boarding it. He got nervous and waited on the tarmac for them to go away. On the previous night his friend Mohan had instructed him that foreign marked gold biscuits in two packets will be coming by AI 830 concealed in upper deck toilet and had asked him to take the gold out without anybody s knowledge and to inform him on phone No. 890757 for further instructions after taking the gold biscuits outside the airport. He came in contact with the said Mohan two years back while he was repairing and selling second hand electrical goods and Mohan used to get in touch with him and he suggested and that he wanted to smuggle gold in India from abroad by concealing in the commode of toilet in the upper deck of jumbo aircraft and offered to pay him Rs. 1000/- per 10 tolas of gold smuggled by this method and deliver to him for which he agreed to do the job when l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ohan, and on the left side he had calculated the amount paid to him by Mohan between Feb., 1987 to 27-9-1989. Total Rs. 23,51,500/- and after deducting the same from Rs. 1,47,61,193 the balance of Rs. 1,24,09,693/- is shown on the right side of the document for the said period. Monthly and daily per head calculation of the amount of 1.24 crore was arrived at on the right side. The entire amount has been worked out as Rs. 4 lakhs per month which showed Mohan was having other partners in the smuggling of gold also. Rs. 12,000/- seized on him was his savings. He does not recollect as to what figures were dictated by him to Anil in the documents A and B. 10. The statement of Anil Ingle under Section 108 of the Customs Act shows his acquaintance with the appellant when he was running the customs notified shop, 7 Seas boutique on J.B. Nagar, where he used to visit the shop and closed the said business as it was not profitable where Ashok was employed. He was sending persons abroad for getting the things and selling them. To conduct them he used to book rooms in the hotel. He had sent one Maplachari Ashraf to Singapore to get some textiles. To contact him he paid Rs. 1000 to Mahendra Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ors for Air India to the appellant s counsel shows the inability having regard to the nature of the documents to furnish the certified copy of the log book, on the request to emanate for the authorities, they could consider the position, needless to mention due caution is to be exercised. So from this material, it is seen that the log book is available for production before the adjudication authority. The letter dated 15-10-1990 by the counsel for the appellant requesting the Collector of Customs, Adjudication Cell to correspond with Mulla and Mulla and get the log book and furnish a certified copy on payment of necessary charges. The letter dated 4-12-1990 by the appellant s counsel with the affidavit and the application of the applicant to approach the agency concerned, Air India for the documents. The absence of this document has prevented the appellant from filing the reply to the show cause notice. Adjudicating authority has issued a letter to the appellant to file reply on the available material which resulted in the appearance of the counsel in the personal hearing and arguing the case and filing the written submission. Page 22 shows the observation that the inspection of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd possibility of the pant was only wet when green jelly like liquid substance formed by a green chemical solution used for flushing in the commode of upper deck toilet and the value of the evidence of security according to N.T. More who was allotted duty in the alleged aircraft. This is the most important evidence for the presence of the appellant or otherwise at the time of the seizure and recovery. Hangar is also part of tarmac. The entry and exit of the staff are recorded in the registry maintained by the allotted security according to which has to be correlated with the security guard s pocket diary. As against this contention, impugned order in the course of the discussion finding in paragraph 24.7 observes that since the pant worn by the appellant was having a wide leather belt and it does not raise a question whether the pocket would sustain the weight of the gold bars. When the two cloth packets was admitted to have been kept in the pocket of the pant, each packet containing 1 packet of 60 gold bars, the 14 kg. weight had been uniformly distributed and the balance of the weight was not disturbed. It was not impossible for the appellant to rush into the toilet. In page 22, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... monstrated that 14 kgs. of gold can be kept in the pant pocket and any ordinary man can run with it. But the Department has not responded to it. To overcome these defects, it is necessary to cross examine the panchas, and J.E. Saldana, and also to examine N.T. More the security guard of the aircraft. So under these circumstances, the matter requires to be remanded to the adjudicating authority. The point raised is answered in the positive. Hence we pass the following order. ORDER 14. For the reasons discussed above the appeal is allowed and the impugned order is set aside. The matter is remanded back to the adjudicating authority to permit the cross examination of the panchas Ganbir Singh and S.V. Pansare, and Asst. director J.E. Saldana, and L.D. Panda, IO - author of the panchnama and to permit the defence evidence of N.T. More security guard of aircraft VT EFJ. The necessary process may be issued to these persons for the cross examination of the panchas and the DRI officers and for the evidence of the defence witness. Process should be issued afresh to the Aircraft authorities to produce relevant log book, as per the letter of their solicitors and advocates dated 1-10-1990. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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