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TMI Blog2010 (2) TMI 832X X X X Extracts X X X X X X X X Extracts X X X X ..... ul and can be the basis for imposition of the impugned penalty - Held that:- petitioner entered smuggling activities to augment his meagre income and was a recent entrant in the field. penalty of Rs. 1.50 lakhs deposited by the petitioner would be sufficient penalty for the crime committed as the gold has already been subjected to seizure. petition stands disposed of in terms of the above order. X X X X Extracts X X X X X X X X Extracts X X X X ..... n, Shymal Chakraborty made inculpatory statement on 11-11-99 stating that the seized gold bars were handed to him by the petitioner Basudev Das alias Bappa and that on previous three occasions, he had similarly carried foreign gold bars on instructions of his master Basudev Das (writ petitioner). Shymal Chakraborty stated that he used to receive nominal payments for such service rendered to the petitioner Basudev Das. 5. A similar statement was also made before the Custom Authorities on the same day i.e. on 11-11-99 by the writ petitioner where he admitted that the gold bars recovered from Shymal Chakraborty actually belonged to him and that Shri Chakraborty was carrying it on his person on his instruction for delivery to another pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rring this modification, the order of the Customs Commissioner was affirmed. 9. The writ petitioner through his counsel contends that no recovery of gold was made from him and his involvement with gold smuggling cannot be positively confirmed only on the basis of a statement of a co-accused. It is also contended that the statements from the petitioner was obtained through duress and coercion while he was kept confined at Shillong. Mr. M.K. Choudhury, learned senior counsel points out that soon alter the petitioner obtained bail on 18-11-99, on 20-11-99, the petitioner had sworn the affidavit (Annexure-1) wherein he had recorded that he and Shymal Chakraborty were in the custody of Customs authorities at Shillong between 12-11-99 to 18 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in (1997) 3 SCC 721 = 1997 (90) E.L.T. 241 (S.C.) on statement recorded by the Customs officer on suspecting a person of having committed a crime under the Customs Act recorded as follows : "It would thus be clear that the object of the Act empowering Customs Officers to record the evidence under Section 108 is to collect information of the contravention of the provisions of the Act or concealment of the contraband or avoidance of the duty of excise so as to enable them to collect the evidence of the proof of contravention of the provisions of the Act so as to initiate proceedings for further action of confiscation of the contraband or imposition of the penalty under the Act etc. By virtue of authority of law. the officer excercing the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e on the complaint laid by the Customs Officer for prosecution under Section 135 or other relevant statutes." Having regard to the law laid down by the Supreme Court in K.I. Pavunny (supra), I am of the considered opinion that imposition of penalty can be justified on the basis of statement recorded under Section 108 of the Customs Act. 13. But a penalty inflicted solely on the basis of statement of co-accused may have to be scrutinised to ensure that it is a truthful version of the events. In the instant case, the statement given by the petitioner as well as the co-accused on the very day of the seizure i.e. 11-11-99 at Silchar is relevant. The petitioner pleads that while the petitioner remained in custody at Shillong from 11-11-20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt to accept that the statement was truthful and can be the basis for imposition of the impugned penalty. 15. In the above circumstances. I am of the considered opinion that the penalty inflicted on the petitioner is not liable to be interfered by this Court. 16. However, I find from the materials on record that the petitioner was a petty Pan shop owner and had entered smuggling activities to augment his meagre income and was a recent entrant in the field. On this consideration. I feel that the penalty of Rs. 1.50 lakhs deposited by the petitioner would be sufficient penalty for the crime committed as the gold has already been subjected to seizure. Accordingly without interfering with the order of penalty, the amount is reduce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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