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TMI Blog2007 (10) TMI 520X X X X Extracts X X X X X X X X Extracts X X X X ..... forward to attend the said car. Enquiries were made in the vicinity as to the person who had parked the car. However, no one could give any clue regarding ownership of the said car. Thereafter, the said customs officer searched the said car in presence of panchas and found cavity in the running board below the driver s door, and after opening the same two heavy packets were found wrapped in cellophane adhesive tape. Since the spot was in the sensitive area affected by riots, the car was taken to Sahar Airport duly escorted with panchas for detailed examination of the said two heavy packets. 2.3 In the office of Air Intelligence Unit, Sahar Airport, the said two packets were opened and examined before the panch, witnesses and found to contain 42 gold bars of 10 tolas each, with foreign markings. Thus, in all 84 gold bars of 10 tolas each collectively weighing 9797 gms. valued at Rs. 29,39,100/- IMV and Rs. 42,51,898/- LMV were recovered and seized under panchnama dated 23-4-93 in the reasonable belief that the same were smuggled into India in contravention of provisions of the Customs Act, 1962 and hence were liable to confiscation under the Act ibid. 2.4 The above said maroon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri Sohanlal K. Jain had illegally acquired the same. After coming to such conclusion, the adjudicating authority passed the order as under : 1. I order absolute confiscation of the seized 84 gold bars of 10 tolas each weighing 9797 gms. valued at Rs. 29,39,100/- (IMV) and Rs. 42,51,898/- (LMV) seized form a fiat car bearing registration No. MMH-1688 on 23-4-95 under the provisions of Section 111(d) of the Customs Act, 1962. Absolute confiscation is ordered in this case keeping in view the ratio in Sheikh Mohd. Omer (ECC Cus 759 S.C.) that prohibition referred to in Section 111(d) read with Section 125 applies to every type of prohibition, complete or partial and therefore, gold is a prohibited item. 2. I also order absolute confiscation of the seized maroon coloured fiat car bearing registration No. MMH - 1688 valued at Rs. 30,000/- under the provisions of Section 115(2) of the Customs Act, 1962. 3. I also order absolute confiscation of cellophane adhesive tapes used for wrapping the said gold bars should not he confiscated under Sec. 118 119 of the Customs Act, 1962. 4. Although Shri Sohanlal Kapoorchand Jain is liable for penal action under the provisions of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n pursuance of the compromise petition. After pointing out all these, it is the submission of the ld. counsel that the appellant herein should be given the possession of the gold which is absolutely confiscated and in the event of the gold having been sold, then the value of the gold purchased in current market rate should be awarded to the appellant. It is also his submission that the fiat car which is also seized be released and in event of such car having been sold by auction, the value of the car as on the date of the seizure be given to the appellant herein. 6. Ld. SDR, on the other hand, submits that the investigations which were carried out by the lower authorities were on specific information that the 84 gold bars were smuggled into India. It is his submission that when the car was intercepted, no one was present near the car for at least two hours. Only thereafter, the Customs officers searched the car and when they found in the ignition slot a cavity under the running board below the driver s door and found the gold wrapped in cellophane adhesive tape. It is his submission that the sale of the car from its owner Shri Mohammed Hanif Hussain Malang and subsequently to Lat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly later on after securing anticipatory bail, clearly points to the fact that the said 84 gold bars were acquired illegally. Accordingly, I am unable to accept the said two certified Xerox copies of the DDR as the proper documents in respect of legal importation of the seized 84 gold bars of 10 tolas each. Since no other document pertaining to the legal import of the said 84 gold bars has been submitted, I hold that these 84 gold bars of 10 tolas each valued at Rs. 29,39,100/- IMV and Rs. 42,51,898/- LMV were Imported contravening the provisions of Section 13(j) of the FERA 1973 and also contravening Govt. of India, Ministry of Finance Notification - 12(ii) PI -48/25-8-48 (as amended) thereby rendering the seized 84 gold bars of 10 tolas each weighing 9797 gms. valued at Rs. 29,39,100/- IMV and Rs. 42,51,898/-LMV liable to confiscation under Section 111(d) of the Customs Act, 1962. It can be seen from the above reproduced portion of the order of the adjudicating authority that the adjudicating authority has not at all considered the factual matrix. Late Shri Sohanlal K. Jain in his reply dated 18-5-93 had submitted to the authorities the following documents : 1. Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y confiscated by the adjudicating authority are legally imported into India and duty liability on the said gold biscuits during the relevant period was discharged as is evident from the DDRs and the State Bank of India receipt. We arc unable to understand and also surprised to note how the adjudicating authority has not taken cognizance of these evidences for coming to the conclusion that the gold biscuits were illegally brought into India. In view of the foregoing reasons, we hold that the absolute confiscation of the 84 gold bars/biscuits as ordered by the adjudicating authority is incorrect and not proper. The said confiscation is liable to be set aside and we do so. 8. As regards confiscation of the maroon coloured fiat car bearing registration No. MMH-1688, valued at Rs. 30,000/-, since we have held that gold biscuits, which were absolutely confiscated, are not liable for confiscation, hence the vehicle ordered to be absolutely confiscated as a conveyance used for smuggling the said gold is incorrect and is also liable to be set aside and we do so. 9. As regards the claim of the current appellant i.e. Smt. Jayanti S. Jain wife of Late Shri Sohanlal K. Jain, we find from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have compromised the dispute to maintain relations cordial. The accused has delivered the entire property of the complainant. The contents of compromise petition are read over to the parties. The complainant has agreed to have received the property. The complainant also agreed to relinquish all his future rights over his property which is seized and which is the subject matter of filing the complaint. Complainant have accepted and admitted before court that he has received entire property and he does not have any claim against accused. The accused purchased the property from the market as per Ex. P-7 and P-8 and delivered to the complainant towards compensation of the articles which the complainant entrusted to her late husband. As the parties have decided to settle dispute in pursuance of delivery of the property by the accused, the complainant does not have interest to proceed further. In view of above fact, the parties are allowed to compromise the dispute. The case stands disposed off as it is permitted to compromise. (D. D. Mamdapure) Additional Chief Metropolitan Magistrate 38TH Court, Ballard Pier, MUMBAI It can be seen from the above reproduced portion, that t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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