9911796707
TMI Blog1983 (9) TMI 287X X X X Extracts X X X X X X X X Extracts X X X X ..... stions in this revision application, 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. In the course of the hearing before us, Shri 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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any Gold Control Officer authorised in this behalf that is empowered to - (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the power specifically vested in the proper officer. In such a case, the burden, therefore, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evenue. 9. In view of the bar of the use of a statement recorded under Section 161 Cr. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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