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TMI Blog1984 (9) TMI 287X X X X Extracts X X X X X X X X Extracts X X X X ..... , statements were recorded from K.M. Ahmed and others. On completion of investigation and after completion of the procedural formalities under law, penalties were imposed on the applicants under Section 112(b)(i) of the Customs Act, 1962, which were eventually confirmed by the Tribunal under its order referred to supra, out of which the present reference applications arise. 3. The learned Counsel, Shri M. Ratna Singh appearing for the applicants have formulated the following questions of law in the reference applications :- (1) Whether the proceedings before the Collector of Customs under Section 129 (B) is a Quasi-Criminal Proceeding or not, and if it is a Quasi-Criminal Proceeding, the principles embodied in Criminal Procedure Code and Evidence Act will apply for the same and whether this principle was applied in this case. (2) Whether a confession statement made by a co-accused is in the nature of an accomplice evidence. If they are in the nature of an accomplice evidence, the principle that an accomplice evidence is unworthy of any credence unless it is corroborated in all material particulars was applied in this case or not. (3) Statement of a co-accused is somet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rious kinds of works as per his instruction, which is the basis for finding these appellants guilty. unfortunately these facts are not born-out by record. Whether a judgment which is not based on facts born-out by records can be legally accepted ? (6) Now it will be seen from the last part of this para that because Kallatra Mahin is related to Haji Abdulkhader and also because he is related to K.M. Ahammed, the Hon. Tribunal has come to the conclusion that Kallatra Mahin is the owner of the contraband goods under seizure. (7) In Para 15, the Tribunal agreed that the decision reported in AIR 1961 S.C. 264, that the burden of proof is on the Customs Authorities and they have to bring home the guilt of the person alleged to have committed a particular offence under the said Act by adducing satisfactory evidence. It is submitted with due respect that the Tribunal went wrong in assessing the guilt of the appellants by relying upon only one set of statements. (8) The Hon. Tribunal should refer to the totality of the evidence in a given case. Considering only one statement when a person has given two statements which are prevaricative is illegal and non-considering of the stateme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd when appellants Kallatra Mahin and Haji K. Abdulkhader (Poinachi) are implicated by the two lorry drivers, they certainly deserve consideration under law in the light of other materials available on record. We are inclined to accept the earliest statements of the two lorry drivers, and the cleaner as true and voluntary and the implication of the appellants by them is well-corroborated by other materials on record . The judgment is proceeded on the footing that there is corroboration to the statements of the lorry drivers and cleaner as far as Poinachi is concerned in their earliest statements. If they have not mentioned anything about Poinachi at all in the earliest statements it looks very strange how there could be a corroboration for the implication of Haji K. Abdulkhader of Poinachi. This is an illegality. (13) The Tribunal has failed to notice that MYG 4219 was released to K.M. Ahammed, the Registered owner by the Customs Department and now to fasten the ownership and possession of the lorry to both Haji Abdulkhader and Kallatra Mahin is unreasonable. 1. The respondent has filed a counter contending, inter alia, that : (1) Proceedings under Section 129B of the Cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The next submission of the learned Counsel was that the confessional statement made by a co-accused is in the nature of an accomplice s evidence and the same is unworthy of credit unless corroborated in material particulars. It should be borne in mind that the appellants are not first of all accused and as such the rules relating to the evidentiary value of a co-accused would not arise strictu sensu in this case. Even though under criminal law a confessional statement of a co-accused cannot be per se evidence within the mischief of Section 3 of the Evidence Act the Madras High Court in its judgment reported in 1978 T.L.R. 1735 in the case of R.S. Kalyanasundaram v. Collector of Customs, Madras, to which reference has been made in Para 19 of the Tribunal s order, has held that departmental proceedings under Section 112 of the Customs Act could not be said to be vitiated merely because they were based on consideration of the confession of the co-accused especially when such confession was only one of the pieces of evidence taken into consideration. This apart, the law is also well-settled by the highest court of the land that the testimony of an accomplice may be treated as substan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld amount to a question of law meriting a reference. The Tribunal, on analysing the factual circumstances with reference to the connection between the appellants and the drivers of the lorries, has adverted to Para 16.5 of the order of the adjudicating authority. The important factor to be borne in mind is the interest and connection between the appellants on one hand and the drivers of the vehicle on the other hand, and the interest of the appellants in the vehicle. These are essential and relevant factors regarding the charge against the appellants. The earliest statements of the two lorry drivers who were driving the vehicles containing the contraband and the cleaner have been found by the Tribunal to be true and voluntary and the implication of the appellants by them has also been corroborated by other materials. In such a context, whether the driver K. Ahammed was staying with appellant Kallatra Mahin or related to him is a very minor and insignificant point and even if there be a minor factual discrepancy in this regard, it is totally inconsequential regarding the appreciation of the charge against the appellant. What is relevant is only the statements of the lorry drivers, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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