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TMI Blog1985 (5) TMI 240X X X X Extracts X X X X X X X X Extracts X X X X ..... 8, as amended, besides imposition of a penalty of ₹ 8 lakhs on the appellant under Section 112(b) of the Customs Act, 1962. 3. On prior information and in pursuance of a search warrant issued by the Assistant Collector, C.I.U., Headquarters Office, Cochin, the Superintendent of Customs, Cochin, with his staff searched the residential premises of the appellant at No. 41/840-A, St. Vincent s Cross Road, Ernakulam on 6-12-1980. During the course of the search the authorities recovered a wooden box kept buried under earth about 2 feet away from the northern wall of the prayer room of the house. The box on examination was found to contain 200 gold bars in biscuit shape, out of which 155 bars bore the markings CREDIT SUISSE 9990-10 TULAS CHI ESSAYER FOUNDEUR and 45 numbers had markings JOHNSON MATHEY 9990-10 TOLAS LONDON . The purity and weight of the gold was respectively verified and ascertained as 24 ct. and 23,200 gms. The said gold bars were seized by authorities as per law under mahazar attested by witnesses besides the appellant himself. The appellant gave a statement before the authorities on 7-12-1980 admitting ownership of the gold bars under seizure. It is in these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the earth 2 feet away from the northern wall of the appellant s house in the closest vicinity of his prayer room, it must be construed that the recovery was from the appellant s possession within the meaning of Section 123 of the Act. 6. We have carefully considered the submissions of the parties herein. The admitted fact remains that a substantial quantity of gold bars with foreign markings were recovered from the residential compound of the appellant. The appellant does not claim any ownership of the gold bars under seizure and indeed pleaded total ignorance and complete want of knowledge about the very presence of the gold bars in his residential compound and challenged the leviability of any penalty on him under law. The confiscation of the gold bars under the impugned order is not challenged by the appellant. The important question that falls for our determination is whether the appellant had acquired possession of the gold bars under seizure or in any way concerned with harbouring, keeping or connected with the same. One of the important pieces of evidence on which reliance is placed by the Department is the statement of the appellant himself given before the authorities o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the authorities regarding the gold bars under seizure, one would expect the authorities to immediately record a statement from the appellant and the explanation of the Superintendent that he was busy with safeguarding the huge quantity of gold bars under seizure and also in questioning the servants of the appellant and others is too artificial and incredible to merit acceptance. It passes our comprehension as to why the appellant had to stay for the whole night of .6-12-1980 in the Customs Office when his house was hardly half a kilometer away from there and so the inference is inescapable that the appellant was not in a state of freedom. It does not also stand to reason as to why no statement was at all recorded even in the morning of 7-12-1980 till about 9 A.M. and as the learned counsel submitted this circumstance would clearly show that the appellant could never have offered to give any statement at all and evidently by being kept in a state of detention in the Custom House for the whole night of 6-12-1980 and also till 9 A.M. on 7-12-1980, the appellant should have been pressurised and coerced into giving a statement against his interests. Notwithstanding the fact that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sefully be made in this connection to the ratio decidendi in the rulings of the Supreme Court reported in: 1. AIR 1960 SC 1125 (1128 to 1131) in the case of State of Uttar Pradesh v. Deoman Upadhyaye. 2. 1978 (3) Supreme Court Cases 435 - Sankaraiah v. State of Rajasthan. The circumstances under which the appellant was kept though unofficially, in the Customs House for a long spell of time and an inculpatory statement emerging after such a detention do not inspire any confidence in our mind about the voluntary nature of the same. It is indeed strange that the appellant from whose residential compound a large quantity of gold bars was unearthed should have felt fascinated to spend a whole night in the company of Custom Officers in the Custom House leaving his wife and grown up daughter alone in the house. We therefore reject the inculpatory statement recorded from the appellant as not voluntary. The learned counsel submitted that since the authorities were holding out a threat that the appellant s wife would be examined, the appellant did not complain against the Customs authorities apprehending that they might proceed against his wife as well. The fact remains that the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from a person s possession. The learned counsel drew our attention to the relevant portion in the impugned order and contended that even the adjudicating authority himself has been doubtful about the applicability of Section 123. The adjudicating authority has found the contention of the appellant that the mere fact of recovery of incriminating articles found buried under the residential compound of the appellant cannot give raise to any legal presumption that the same was buried by the person having the ownership of the property apparently acceptable ; yet he chose to invoke the presumption under Section 123 from other circumstances. We are not inclined to accept this part of the reasoning of the learned Collector in the impugned order with reference to the applicability of Section 123 and we therefore hold that in the instant case, the presumption incorporated in Section 123 of the Act is not applicable and cannot be invoked by the Department against the appellant. We have therefore to consider the charge against the appellant de hors the applicability of Section 123 of the Act. 9. The learned counsel contended that Poulose, being in the position of an accomplice, is the main ..... X X X X Extracts X X X X X X X X Extracts X X X X
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