1983 (9) TMI 287

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..... n, transferred to the Tribunal and heard by us as an appeal, are as to whether - (a) Section 123 applies to the alleged recovery of certain gold biscuits with foreign markings from the Appellant; (b) if not, is there any evidence on record to justify the imposition of a penalty in a sum of ₹ 5,000/- under Section 74 of the Gold Control Act, 1968. 2. It would appear from the admitted .....

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..... R.D. Jolly, the learned Advocate for the Appellant submitted, inter alia, that - (a) the recovery having been affected by Police officer and not by an officer of the Customs or Gold Control, the ruling relating to the burden of proof in Section 123 is inapplicable; (b) a statement recorded under Section 161 of the Cr. P.C. is not evidence in the adjudication proceedings unless the contents a .....

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..... - (i) search suspected persons (Section 101 of the Customs Act and Section 59 of the Gold Control Act); (ii) examine any person during the course of any enquiry (Section 107 of the Customs Act and 64 of the Gold Control Act); (b) it is the proper officer as defined in Section 2(34) of the Customs Act that could seize any goods if he has reason to believe that they are liable to confisca .....

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..... herefore, squarely rests on the Revenue to prove all the essential ingredients of the offence with which the Appellant in this case is charged. 8. Even if this were not so, in terms of Section 162 Cr. P.C., a statement recorded under Section 161 Cr. P.C. is neither to be signed nor to be used for any purpose, even at any enquiry or trial by a criminal court in respect of any offence under inves .....

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..... . P.C. already discussed, it cannot be evidence in the adjudication proceedings. 10. In the circumstances, when neither the seizure nor the statement admittedly recorded by the Police have been brought on the record in the adjudication proceedings, it is futile to say that the Appellant did not ask for an opportunity to cross-examine the persons associated with either the recovery memo or the s .....

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