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TMI Blog2017 (4) TMI 784X X X X Extracts X X X X X X X X Extracts X X X X ..... with the team to have hatched the conspiracy and executed the smuggling activity, the Trial Appellate Court has given an acquittal to the appellant by stating that the prosecution has failed to prove the case beyond reasonable doubt. Merely, because the other persons had pleaded guilty before the Trial Court and accepted the punishment, that would not have a bearing on the appellant's position, as there is no direct evidence that he had involved in the said activity of smuggling as there was no recovery from the appellant and also the prosecution, as has been rightly found out by the Trial Appellate Court has not proved the case against the appellant beyond reasonable doubt. Hence, the Tribunal has erred in giving such a conclusion, confirming the order in original. Appeal allowed - decided in favor of appellant. - C.M.A. No. 3652 of 2008 and M.P. No. 1 of 2008 - - - Dated:- 28-3-2017 - Rajiv Shakdher And R. Suresh Kumar, JJ. For Appellant : Mr. B. SathishSundar For Respondents : Mr. Rabu Manohar JUDGEMENT ( Judgment of the Court was delivered by R. Suresh Kumar, J. ) This civil miscellaneous appeal is directed against the order passed by the Customs, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3.06.2001 at about 4 pm, police officials intercepted a Mahindra Jeep with Registration No. TN-02-C-4979 near Chennai harbour and recovered 900 numbers of gold biscuits bearing foreign markings concealed in a specially made cavity in the said jeep. The police subsequently, arrested one Sadasivam and jeep driver Ganesan and on further enquiry, the police arrested three more persons, namely Rajam Patil, Abdul Nabi and Saleem. Thereafter, on the basis of disclosure made by the said Sadasivam, the appellant also was apprehended by the police with the help of customs officials on 13.06.2001 at Chennai harbour. The officials recovered and seized an Ericsson cell phone and US $ 2100 from the appellant under a mahazar. 7. On 14.06.2001, all the six accused persons including the appellant, who had been arrested on 13.06.2001, were produced before the Additional Chief Metropolitan Magistrate, Economic Offences-1, Egmore and they had been remanded to judicial custody. Alongside, a petition was filed by the Customs Department before the same Magisterial court seeking the custody of the six accused persons including the appellant and on getting orders from the Court, the Customs Department u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SathishSundar, the learned counsel appearing for the appellant has taken us to the exhaustive recording of the confessional statement given by the appellant on 14.06.2001 by the Adjudicating Officer which is reflected at paragraph 18 of the order in original. 14.b. The learned counsel would vehemently contend that the said confessional statement given by the appellant under Section 108 of the Act since has been retracted at the earliest point of time, the veracity of the said contents made in the said confessional statement given by the appellant would not have any impact in arriving at a conclusion fixing up the involvement of the appellant in the alleged activity of smuggling. 14.c. The learned counsel would further submit that it is a settled proposition of law that the confessional statement given before the customs authorities during their custody cannot have any evidentiary value once the same is retracted at the earliest point of time by the person concerned. When that being the position, the first respondent merely relying upon the confessional statement given by the appellant had concluded that the appellant also has got a role to play in the alleged activity of smug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f India. The learned counsel, in the said Judgment, would rely upon paragraph 20 of the order which reads thus: 20. In the case of Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. reported in (1999) 3 SCC 679) it has been held that where departmental and criminal proceedings are based on identical facts and where charges were sought to be proved by the police officers and the panchas who raided the house and effected recovery and where same set of witnesses were examined in both the proceedings but the criminal court on examination of the evidence came to the conclusion that no recovery was made from the house and that raid was not proved it would be unjust, unfair and oppressive to allow the findings recorded by the enquiry officer to stand against acquittal by judicial pronouncement. The present case is on the stronger footing than the case of Capt. M. Paul Anthony (supra). In the present case, in view of Section 98B, a very heavy burden was placed on the appellants in the criminal proceedings. It was for the appellants to rebut the statutory presumption of the culpable mental state placed on them by section 98B. Under section 98B, the appellants had to prove beyond reasonabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e have no option but to set aside the penalties. None of the appellants has challenged the confiscation order. Their challenge is only against the penalties. Hence we set aside the penalties imposed on the appellants by the Commissioner. The appeals are allowed. 14.j. In this aspect, the learned counsel for the appellant would submit that once if a person is acquitted in a criminal case and on the same set of facts and circumstances, if a departmental adjudication has taken place certainly, such adjudication upon the very same set of facts and evidences cannot stand in the legal scrutiny as the very court who dealt with the criminal case since has acquitted the person concerned, based on a higher standard of proof. The learned counsel for the appellant would lay emphasis on the findings given by the Hon'ble Apex Court in the Judgment reported in 2004 176 ELT 3 (S.C) (cited supra) to state that it would be unjust, unfair and oppressive to allow a decision of a authorised officer in confiscation proceedings to stand against acquittal by the competent criminal Court. 14.k. Therefore, the learned counsel for the appellant would ultimately, contend that the very order in ori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this nature, where conspiracy was hatched, as without which this kind of smuggling activities could not be executed, it is only on the basis of corroborating evidences as well as circumstantial evidences, either the prosecution or the Adjudicating Authority can build their case. Here in the case on hand, the entire conspiracy since had been proved beyond doubt before the criminal Court as all of them except the appellant had pleaded guilty, it cannot be said that the conspiracy had not been proved. 15.f. The learned counsel for the respondent would also submit that merely, the appellant alone has retracted his confessional statement subsequently, he cannot be excluded from the clutches of the conspiracy hatched by the parties, because a proven conspiracy definitely has got links with the appellant and this can be very well appreciated if the circumstantial evidences are taken into account. Therefore, the learned counsel for the respondent would submit that, absolutely, there is no infirmity in the order in original passed by the first respondent as confirmed by the Tribunal in the order impugned and therefore, the questions of law framed in this appeal have to be decided aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f at all, any link is to be given with the appellant, even according to the authorities, that is the one that the appellant allegedly contacted one of the persons in the team by giving intimation that the contraband has arrived to the port. 21. Insofar as the said issue of involvement on the part of the appellant in making an intimation to another person of the group is concerned, the Trial Appellate Court has taken it in very detail and given its findings in the Judgment dated 23.6.2016. Certain findings given by the Trial Appellate Court can be extracted here under for better appreciation of the issue. In this regard the following portions of the Trial Court Judgment are reproduced here under: 19. PW-7 Mr. Paul Jesudass Superintendent of Customs who speaks about this had deposed in detail about the investigation of the case and recording the statements of the accused, inspection of the vehicle, which was seized with smuggled gold bars and other investigation procedures. In his evidence, he has stated that he has summoned to the service provides of Cellular Services requesting them to furnish the call details and their response and they are all marked as EX.P73 to P78. Bas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at 16.00 hrs. The arrest card marked as Ex P-17 shows the appellant was arrested at 23.30 hrs on the same day. Whereas the seizure mahazar Ex P-19 and the so called confession of the appellant marked as Ex P-20 say that the appellant was called over phone 13.06.2001 and in response to the phone he came to the harbour at 21.30 hrs. In the light of the above fact, from their own document namely call details it is evident that no call was received by the phone No. 9840077231 on 13.06.2001 after 12.29 pm. That call detail information also not been vouchsafed by the author of the letter. It is only PW-7 superintendent of customs speaks for all the service providers. Above all the SIM card for phone number 9840077231 has conspicuously not recovered or marked besides one of the prosecution document Ex P-14 indicates the appellant was arrested on 13.06.2001 as early as 16.00 hrs long before the search of the vessel M.V.Tiger Bridge. 22. Since the prosecution has miserably failed to prove that the appellant was using the phone number 9840077231 and he was called over the phone on 13.06.2001 to the harbour and for search of his person and cabin, coupled with the contradiction found in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... following the earlier Judgments of the Hon'ble Apex Court including the one reported in (1999) 3 SCC 679 in the matter of Capt. M.Paul Anthony V. Bharat Gold Mines Ltd.,where also departmental and criminal proceedings were based on identical facts and the criminal proceedings ended in acquittal, hence it was held that it would be unjust, unfair and oppressive to allow the decision of the Authorised Officer in confiscation proceedings to stand against acquittal. 24. We are of the considered view that in this case also since the appellant has been acquitted from the criminal charges by the competent Trial Appellate Court, in the criminal proceedings, that too on the basis of the failure on the part of the prosecution to prove the case beyond reasonable doubt, allowing the findings of the Adjudicating Officer and his order in original as confirmed by the Tribunal, is nothing but unjust, unfair and in fact oppressive, in the words of Hon'ble Apex Court. 25. These aspects had not at all been considered by the Tribunal in the impugned Judgment, where, the Tribunal has merely stated that the said Sadasivam in his deposition explained the principal role played by the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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