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TMI Blog2000 (7) TMI 772X X X X Extracts X X X X X X X X Extracts X X X X ..... motorcycle. The speed of Autorickshaw was increased after little distance, knowing the chase. The above person alighted and started running away throwing something. Officers apprehended him and brought to the place of throwing and recovered 13 gold lagadies having marks of foreign origin. It was brought alongwith the above person to the Customs office and enquired. He disclosed his name as Vinod Kumar Chotalal Soni, residing at 18-A, Indira Park Society, Satellite Road, Jodhpur Char Rasta, Ahmedabad, before Panchas. He confessed that he was apprehended by Customs Officers, and had thrown the said 13 gold lagadies of foreign origin, during the course of chase by above officers. On receipt of further information, the Customs officers visited the same place in the evening of 23-1-89 and on further search could recover 6 more gold lagadies of 10 tolas each with foreign markings, valued Rs. 2,22,000/-. 2. Statements of under Section 108 of Customs Act of the following persons were recorded. (a) Appellant on 23-1-89, (b) Amritlal Devdan Soni on 25-1-89, (c) Manjulaben A. Soni on 23-1-89, (d) Pardmaben Vinod Kumar Soni and others. All 19 gold lagadies of foreign origin weighing 190 tol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ten documents relied on such as Panchnamas, Statements, and Test Reports (copies were also supplied). The appellant replied it on 6-10-89 in detail denying the case specifically, and setting up his defense in 46 pages and also produced six documents in support of it. Amrital Devanbhai Soni submitted his reply on 26-9-89. Show cause notice was not served in Kishanlal Marwadi. In the personal hearing held on 28-9-89, 6-10-89, 23-10-89, 16-11-89, 28-11-89, Panchas, Customs Officers, Appellant, his wife Padmaben, Smt. Jayashreeben D. Soni (brother s wife of appellant), Amritlal D. Soni were also examined. Appellant s Counsel argued on 19-12-89, and written submission was filed on 22-12-89. After considering all the available material on record, the impugned order was passed on 22-12-89, absolutely confiscating the seized gold lagadies under Section 111(d) of Customs Act and Section 71(1) of Gold Control Act and imposing penalty on appellant and Amritlal Devanbhai Soni alias Amrat Mama of Rs. 10,000/- each under Section 112(b) of Customs Act and of Rs. 5,000/- each under Section 74 of Gold Control Act. Hence this appeal. 4. In support of the appeal, Shri R.J. Trivedi, learned Counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant. Cross examination of Panch Praveen Kumar Bhogilal Soni supports alibi set up by appellant, and also receipt of gold as Khed Brahmawale. Post card copy produced also supports appellant s journey on 23-1-89. Cross examination of appellant s wife Padmaben also supports it. Cross examination of I.O. C.R. Desai, Superintendent shows appellant was in their custody from 10.30 p.m. of 23-1-89 to 1.30 p.m. on 24-1-89 when he was produced before Court. It was beyond 24 hours, not lawful. Recording statement was over on 23rd itself. There was no need to retain. Evidently residential address of appellant is not correct, as per show cause notice and investigation. I.O. has admitted in cross examination that 1st statement of appellant was suppressed by two Customs officers, when appellant was produced before Superintendent. Evidently no gold lagadi was seized from appellant. As to smuggled nature, cross examination of A.P. Modi, Inspector shows he cannot connect five mint certificates to the 19 samples taken. Appellant has challenged the gold lagadies as to its smuggled nature. Test reports do not connect to all the samples taken. There is no evidence at all. Order-in-original is a predet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stomers in Khed Brahma, last entry was of 22-1-89. Mr. Kishanlal Marwadi, who gave gold lagadies to Amrit Soni as per his say, could not be traced for want of full address. As per Bhoormul s case in 1983 (13) E.L.T. 1546 (S.C.) smuggling cannot be proved by mathematical accuracy. It is not expected to bring out every chain to conclude smuggling. As per Tapankumar s case of Calcutta High Court Judgment non allowance of cross examination of Panchas does not preju dice natural justice. Retraction of inculpatory statement does not render the statement involuntary, nor looses any value as per Naresh Shukhwani s case in [1996 (83) E.L.T. 258 (S.C.)]. Seized lagadies have foreign marks. Mint report shows its nature of foreign origin on the basis of Purity/assay. Appellant s contention cannot be accepted. Case law cited is not relevant. Gold purity with 999 cannot be claimed as gold received for ornaments. Show cause notice and appellant s statement denotes both address and appellant s surname is immaterial. Residential address is important. Appellant s say is supported by Amrit Soni. Tickets for journey can be picked up. Sl. No. 32 is the last entry for 22-1-89. G13 Register of appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were not aware at that time as to what had happened on 22-1-89 at 7.00 a.m. between the appellant and Amritlal Soni alias Mama. It has come out only in the statement of appellant, as alleged in show cause notice. From the discussion and findings in the impugned order it is seen that the whole case rests upon the statements under Section 108 of Customs Act of appellant, Amritlal Soni and Panchanamas. As per the impugned order, 13 gold lagadies with foreign marks were recovered, not from any person, but from a place, allegedly pointed out by appellant. The recovery of 13 gold lagadies on 23-1-89, and recovery of 6 lagadies in the evening of same day from same place, on further information received by the Customs officers, does not look to be natural course of events. The allegation against the appellant is that after alighting from Autorickshaw, started running away throwing something; and after apprehension he was brought to the place where he had thrown something while running and recovered 13 Gold lagadies. On enquiry, appellant stated that he had thrown them during the chasing by officers. So, from this it is clear that even as per departmental case, appellant is concerned with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er seizure in his presence, on reasonable belief that they are liable to confiscation under Customs Act and Gold Control Act, as they were smuggled into, India - Appellant identified Amritlal Devdan Soni, referred him on showing zerox copy of his photograph and he was first dealing in dealing with foreign marked gold with Amritlal Devdan Soni. His brothers are independently doing their business, and they are not concerned. 10. According to the statement of Amritlat Devanbhai Soni alias Mama dated 25-1-89, he has agreed to the facts stated by appellant before Customs Officers under Section 108 of Customs Act, as true. Panchnama dated 23-1-89 is also seen. He stated that he gave 19 gold lagadies to appellant with foreign marks, at 7.00 p.m. on 22-1-89 near law garden, Ahmedabad. It was his first meeting and dealings with appellant, sale price for them was not received. There was mutual understanding that after disposal of 19 gold lagadies, payment was to be made. 19 lagadies of gold were delivered to him by Kishanlal Marwadi; commission agent, Zaveri market, Mumbai, at the gate of his society in Ahmedabad, whom he knew for the last 5-6 years, and price of those lagadies were not pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y to examine the Panchnama under which they are recovered. 11. First Panchnama is drawn between 12.00 noon to 2 p.m. in the chambers of Superintendent C.R. Desai, regarding the appellant with gold lagadies, and Panchas examining on to its purity and foreign mark seal and opin ions on such gold is not available in India and smuggled one and the appellant confirming the truth of narration by Custom Officers as, to what has happened. 3 lagadies were taken as sample and packed separately in a card board box, and 10 lagadies were packed in another card board box and sealed and signed on the chits, and the appellant failure to produce licit document in that regard. Details of intelligence was narrated by those two officers (who are not named in the Panchanama to the effect that) on 22-1-89 - Amrit Devedan Soni alias Amrit Mama residing at A 79, Raghullani Society, Shahibag, Ahmedabad, is active in the business of gold of foreign origin, and he or his reliable person was to give delivery of foreign marked gold to the person Khed Brahamma Wala, and he would take foreign marked gold lagadies from his residential premises situated in Jodhpur cross road on 23-1-89 between 9.30 to 11.00 a.m. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om officer chased, and the seizure of it and taking sample in the office. Cross examination of Panchas and officers are relevent to decide the weight of the above factor. 12. Cross Examination of Panch Dwarakadas Soni, regarding seizure of 13 gold lagadies shows, he only witnessed the seizure of above legadies in the Custom office, which was already in possession of Custom officers, and he was not taken outside and no person was searched in his presence. He heard that biscuits like foreign gold biscuits could be manufactured, similar design could be made, but not exact replica. He was sitting outside, when Panchanama was prepared and after completion he signed and he did not know anything more than that, no samples were drawn in his presence. He did not apply touch stone method to ascertain fineness. Cross examination of Chotalal Chaganlal Soni, Panch for Panchanama completed at 11.00 p.m. on 23-1-89 discloses, he went to Custom office at 7 to 7.30 p.m. When he was taken to Superintendent s room, one Assistant Collector was sitting and some gold biscuits were lying on table. Panchanama was prepared in his presence and left at 11.00 p.m. Exact purity of gold biscuits could be asce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, has deposed that he has written both the parties names on 23-1-89, on the dictation of Panchas, and articles seized there under were not recovered from the personal search of anybody and on search of appellant, nothing was found. There were foreign markings on gold seized showing foreign origin. This evidence does not any way improve the case of Department, but to some extent helps the appellant in support of defense. Sri. P.P. Jadeja, Inspector in his cross examination has stated that he has not participated in the seizure or any activity, except writing the statement of appellant. Superintendent was putting questions to appellant and he was writing in narrative form. He does not remember whether Superintendent enquired the appellant about the telephone number he dialed. He was asked about luggage/baggage for which he stated he had thrown three packets from the rickshaw. While run ning, appellant was apprehended on the road. Appellant s signature was taken on statement and photograph. After statement was recorded it was given to appellant to read. He does not remember whether Desai interrogated appel lant whether he was known as Khed Brahmawala and whether he was asked to make ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d confession before Custom officers is not voluntary. At that time he was in Sabarmati Jail. He is a graduate. Another bail application was filed on 26-4-89 from Ahmedabad Central Jail, which shows he withdrew the bail application filed earlier, at the instance of customs officers. There is no material on record to show that appellant has stated before the magistrate, when produced, that there was no ill treatment to him during his custody with the customs officers. The appellant has taken immediate action in filing the application. So under these circumstances, the observation in the impugned order in Page 24 and 25 that Mere retraction at a later date is not sufficient to render statement under Section 108 of Customs Act suspect in these proceedings. These statements are detailed and material facts brought out are corroborated by each other. Mental frame of a person immediately after seizure is different, compared to his state after a lapse of few hours or days. Any substantial seizure would have an impact psychologically on the person would have recovered from his initial shock and had time to think over and decide what answer he should furnish. Retraction made in the applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eatment by customs authorities and his retraction, denying the acquaintance with the appellant, and giving gold lagadies on 22-1-89 at 7.00 p.m. in the garden in Ahmedabad, which were having foreign markings. The observation in the impugned order that it is purely on after thought, and does not weaken the effect of the statement under Section 108 of Customs Act, does not hold good in view of the prompt and quick action taken by the said Amritlal, immediately after recording the statement. It becomes not a voluntary and not a true statement. Added to it, failure to locate his vendor Kishanlal for want of full address makes the case more weak. From his statement, it is apparent he is a commission agent in Zaveri Bazar with telephone connection, regularly dealing with contrabond gold. As per the Panchanama drawn between 12.00 noon to 3.00 p.m. in the chambers of C.R. Desai, Superintendent, the two customs officers, who produced appellant alongwith recovered 13 gold lagadies have given the details of Intelligence as - on 22-1-89 Amrit Devdan Soni alias Amrit Mama of Ahmedabad is active in the business of gold of foreign origin and he or his some reliable person was to give delivery of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven on merits the appellant cannot be penalised as discussed above, in the light of cross examinations of Panchas and custom officers as pointed in the above paras. 16. The appellant in his reply to show cause notice, and application dated 23-2-89 to Collector and application dated 1-3-89 to Additional Chief Secretary has set up alibi that on 22-1-89, he was in Khedabrahma and attending his gold smith business, and only on 23-1-89 in the morning he left for Ahmedabad to see his acquainted former neighbourer in Khedbrahma viz. Sitaram Bhikaji Soni who was not in good health earlier. It is supported by 3 Bus tickets and Post card written by appellant on 20-1-89 about his visit and affidavits of that person and customers and GS 13 Register extract showing entries No. 29 to 32 showing transaction made on 22-1-89. He has sought for the examination of twelve persons as his witnesses in support of his defense in his application dated 3-11-89 to the adjudicating authority, which was not allowed as per the written submission of appellant. The affidavits of customers and old neighbour of appellant filed in this case at pages 549 to 604 fully supports the above documents produced by the app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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