9911796707
TMI Blog2002 (5) TMI 766X X X X Extracts X X X X X X X X Extracts X X X X ..... he motion of the petitioner, this Court by an order dated 14-12-2000 issued notice upon the respondents to show cause as to why the respondents particularly, the Appellate Tribunal, would require to refer the questions of law rather, substantial questions of law as contended and raised by the applicant-petitioner in this Reference Petition but, despite of the notice served upon them, no reply is received from the respondent No. 1 and that being the position, this Court took up this matter for final disposal on its own merit keeping in view of the fact that the original custom case is of the year 1996 and, accordingly, this Reference Case is finally disposed of with the following judgment and order. 2. The facts of the case in a short comings are as follows : On 18-1-1995, the officers of Customs, Shillong during surveillance intercepted one tourist taxi. Apart from the driver of the taxi, there were four other passengers. On personal search of the said four passengers, the same resulted the recovery of eight adhesive wrapped packets containing 24 Nos. of gold bars, each weighing 10 tolas, from secret cavities of the shoes worn by them. Each passenger concealed two packets one p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /- and, at such, the learned Tribunal imposed penalty of Rs. 1,00,000/- upon them. Being dissatisfied with the impugned judgment and order of the learned Tribunal, the petitioner-applicant filed this Reference Case. 4. The other parties including Shri Prem Prakash did not question the validity of the learned Tribunal s judgment and order dated 13-3-2000. For just determination of the real points in controvercy between the parties, we took up the following questions of law. (i) Whether the Indian Currency of Rs. 12,60,660/- is liable to be confiscated under Section 121 of the Customs Act; and whether, penalty of Rs. 1,00,000/- imposed is reasonable or not in the facts and circumstances of the case? 5. Mr. A. Bhattacharjee, learned Counsel appearing for the petitioner submitted that during the post-seizure, investigation, statements of various persons including the present petitioner-applicant were recorded on various dates and the applicant and his brothers along with their family members were not present in the house at the time of search of their residential premises where-from the Indian Currencies were recovered and the statements of various persons present at the tim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gnored the vital evidence of retraction of Ram Kishan Prasad, and the case of the petitioner that he had left Shillong around 3 p.m. of 18-1-1995 to catch Abodh Assam Express for Chapra leaving Guwahati around 9.30 p.m. in Maruti Van of C.S. Sawhnile (sic) along with his family and his caretaker Shri Ram Kishan Prasad. There is no evidence on record for establishing the fact that the said currency of Rs. 12,60,610/- is the sale proceeds of 24 gold bars recovered from the said Shri Prem Prakash and his co-passengers and, therefore, the findings of the respondents are perverse being based on non-consideration of relevant materials and, apart from that, Revenue has simply assumed that the gold seized is smuggled because it carries foreign marking and is of high purity but there is no evidence on record not even a whisper of it that the gold in question was illegally brought into the country. 6. At the hearing Mr. P. Dey, learned Additional C.G.S.C. contended that the said Indian currency of Rs. 12,60,000/- is liable to be confiscated under Section 121 of the Customs Act, 1962 and the same has been rightly upheld by the Appellate Tribunal and the penalty of Rs. 1,00,000/- was imposed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sonal liabilities of Shri Binod Kumar Shah, Shri Anil Kumar Gupta and Shri Lal Babu Prasad had been reduced to a sum of Rs. 10,000/- only from Rs. 25,000/-. 9. The case of the Revenue is that on 18-1-1995, the officers of Customs mentioned above intercepted one tourist taxi and, on personal search of 4 (four) passengers mentioned above which resulted the recovery of 24 Nos. of gold bars which were procured by Shri Prem Prakash from the applicant-petitioner Shri Brij Kishore Prasad on payment of Rs. 12,60,000/- but the respondent s confiscated initially Rs. 12,60,610/- plus Rs. 8,89,500/- by holding that the same to be sale-proceeds of smuggled gold. However, the Tribunal ordered for release for the said sum of Rs. 8,89,500/-. A question arises at this stage that how the respondents arrived to its conclusion that the Indian Currency of Rs. 12,60,610/- recovered from the residence of the applicant-petitioner Shri Brij Kishore Prasad in his absence from his residence, is the sale-process of 24 Nos. of smuggled gold bars and, why the respondents confiscated the said amount which is not tallied with the alleged sale-proceed of the alleged 24 Nos. of smuggled gold bar and, how the auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recovered from the other room belonging to his three brothers who, accumulated it as sale-proceeds of their grocery shop. According to us, this important evidence and material on record was not properly examined by the respondents authority at the time of passing the impugned orders. It may further mentioned that Shri Ram Kishan Prasad, Caretaker questioned the validity of his statement recorded by the authority in consecutive 4 (four) days i.e. from 19-1-1995 to 22-1-1995 by way of retraction and filing complaint on 24-1-1995 along with supporting affidavit which was also not properly considered by the respondents authority. The alleged consideration price/sale proceeds as relied by the authority/Revenue is quite different from the money recovered from the premises of the applicant-petitioner. Therefore, the authority could not prove about the sale of smuggled goods i.e., the gold bars by the applicant-petitioner to Shri Prem Prakash. 11. The next question arises as to whether the statements of other co-accused persons recorded on 18-1-1995 and 29-1-95 can be considered as voluntary and truthful or not ? 12. From the available materials on record, it is also seem that they we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bly, the said Shri Prem Prakash acquired the goods from the said Shri Bhola Prasad whose identity has been shown in his statement recorded on 30-1-1995 which shows that the said gold was procured by Shri Prem Prakash from the said Shri Bhola Prasad but not from the applicant-petitioner. 13. This Court need not go more into depth as suffice is made with the above observations for holding that the said Indian Currency of Rs. 12,60,610/- recovered by the authority is the personal property of the applicant petitioner Shri Brij Kishore Prasad which was illegally recovered or seized by the authority without any justification and, the entire proceedings lodged and initiated against the applicant-petitioner Shri Brij Kishore Prasad is bad in law as the same was done without following the procedural standard of law and, accordingly, it is quashed with the direction to the respondents to return/refund the said amount of Rs. 12,60,610/- seized and recovered by the authority to the petitioner-applicant Shri Brij Kishore Prasad along with the sum of Rs. 50,000/- pre-deposited by the applicant-petitioner pursuant to the related impugned order of the Appellate Tribunal immediately. However, it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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