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TMI Blog2021 (10) TMI 855X X X X Extracts X X X X X X X X Extracts X X X X ..... fall within the third limb of Section 107 IPC? - HELD THAT:- An omission can be considered to be illegal if what has been omitted was required to be done by such person under law. Thus, there should have been an obligation to do a particular act under some law. Such obligation may be under any Act, Rules, Regulations, Instructions. In the present case, entry into CFS/Port is restricted. Access to this area can be obtained only if a request is made by the transport agency along with recommendation letter of the Trailor Organizers Association. It is also necessary to give details of the driver and the trailer truck/lorry in such applications. After obtaining the gate pass, the transport agency is required to keep a record with regard to the movement of the vehicles for which he has obtained gate pass. These are regulations, which the appellants have to oblige with care and caution. The department need not establish facts beyond reasonable doubt. In quasi-judicial proceedings, the test is that of preponderance of probabilities. These are facts which stands admitted/established and also facts which are probable. When the established facts and the probable facts give a wholesome co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 15.11.2017, the overseas buyer was M/s. Mivion General Trading LLC, UAE and port of discharge was Sharjah, UAE. The Customs broker noted in the documents was M/s. G. Kathiravan. The declared item/cargo was 100% Cotton Knitted Tufted Floor Mat Colour ASTD in 202 packages. The F.O.B. value declared was ₹ 7,47,044/-. On inspection, it was also revealed that the fasteners (rivets) found on the Customs Sealing Point (latches) and Steamer Agent s Sealing Point (latches) of the container were found tampered which demonstrated that the fasteners were removed without cutting the seal. The container was found to contain 804 nos. of Red Sanders wooden pillars/logs totally weighing 9.040 MTs and also floor mats in 27 nos. of HDPE sacks which weighed 360 kgs. The Red Sanders valued at ₹ 3,61,60,000/- at ₹ 40 lakhs PMT and floor mats were valued at ₹ 1,02,510/-. The officers seized the goods under Mahazar along with the container. The seized goods were then handed over to the Custodian for safe custody. M/s. Excellmax Surveyors International, Chennai, who conducted inspection and survey of the goods seized submitted their Survey Report, dated 06.12.2017, wherein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... harbour entry permit for the drivers Shri Raja and for the vehicle NL02-Q-2873 was issued by Chennai Port Trust based on the recommendation of M/s. N.K. Transport Trailer Organisers Association, Chennai. Only vehicles of transport associations [GTA agencies] will be allowed to carry goods into the CFS area and then to the port. Individual lorry owners are not permitted/not given pass to enter into the CFS or the harbour. Shri Raja used the trailer truck bearing no.NLO2-Q-2873 to carry the container in and out of the CFS area and also into the harbour by using the letter issued by M/s. N.K. Transport. Shri A. Mohamed Naseer is the Proprietor of M/s. N.K. Transport and is the appellant in Appeal No.C/40471/2020. 8. The trailer truck bearing registration no.NL02-Q-2873 belongs to Shri Farooq Basha, who is the cousin of Shri A. Mohamed Naseer. Shri Farooq Basha however, contended that he had sold the trailer NL0-Q-2873 vide agreements, dated 12.11.2017 to Shri M. Anslam. 9. On verification, the whereabouts of Shri M. Anslam could not be ascertained and he could not be traced. The whereabouts of the trailer bearing registration no.NL02-Q-2873, which was used for smuggling of Red S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Sanders out of country. (vi) Shri S. Raja of Madurai and Shri M. Anslam of Madurai, drivers of the trailer NL02-Q-2873 in conspiracy with Shri S. Saravanan of M/s. Sara Shipping, Coimbatore by submitting their fake Ids, addresses and by transporting the container from yard to CFS and from CFS to Port and executed this act of attempt to smuggle Red Sanders out of the country so as to avoid the trail leading to him/them. (vii) Shri Mohammed Naseer, Proprietor of M/s. N.K. Transport had given his company s blank letter head along with recommendation letter with his signatures to Shri Farooq Basha, who hold the trailer NL02-Q-2873 which leads to get Harbour Entry permit for the driver and the subject trailer, by the smugglers. (viii) Shri Farooq Basha, who holds the trailer NL02-Q-2873 had given the No.K. Transport company s blank letter head along with recommendation letter with signatures of Shri Mohammer Naseer of M/s. N.K. Transport and the authorised signatory of the Trailer Organiser s Association to his acting driver Shri M. Anslam of Madurai, for the trailer NL02-Q-2873 which leads to get Harbour Entry permit for the driver Shri S. Raja of Madurai and for the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... khs and Sixty Thousands only] under section 113(d), 113(e), 113(f) and 113(h) of the Customs Act, 1962 read with Sl.no.188 of Schedule 2 [Export Policy] of ITC (HS) Classification of Import and Export Items, issued under the provisions of Foreign Trade [Development Regulation] Act, 1992. (ii) I also confiscate the Floor Mats in 27 Nos. HDPE Sacks Door Mats valued at ₹ 1,02,510/- [Rupees One Lakh Two Thousands and Five Hundred and Ten only] under section 113(i) and section 119 of the Customs Act, 1962. (iii) I also confiscate the remaining Floor Mats which are not physically available for seizure or confiscation, under section 113(k) of the Customs Act, 1962 as the same appear to have not been exported after having given clearance for export by the Proper Officer. (iv) I order confiscation of Trailer No.NL02-Q-2873 used for carriage of the smuggled goods, under section 115(2) of the Customs Act, 1962. However, I allow redemption of same on payment of a fine of ₹ 2,00,000/- [Rupees Two Lakhs only] under section 125 of the Customs Act, 1962. (v) I refrain from confiscation of Container No.TCKU1752615 under section 119 of the Customs Act, 1962 in view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 73 was purchased and remodelled by him. He used to send the vehicles for local trip for hire basis using one acting driver. The name of one such acting driver is Shri Anslam. One day, this Shri Anslam contacted him saying that the vehicle is required for a container movement from Sriperumbudur to Chennai and he has fixed the rent as ₹ 9,000/-. Shri Anslam had earlier forged diesel expenses. So Shri Farooq Basha did not use Shri Anslam as acting driver for the said consignment. After one week Shri Anslam returned with another person as acting driver. Shri Farook Basha then informed him that the trailer is not for hire and is for sale only. Shri Anslam then requested to sell the trailer to him. The trailer truck was sold to Shri Anslam vide sale agreement dated 12.11.2017 and the vehicle was delivered to Shri Anslam on 14.11.2017. In para 7 of the impugned order, the Commissioner (Appeals) has given a finding that ‗no evidence was produced even at the stage of appeal regarding the change of the registration with the Road Transport Authority of concerned State Government . This observation is factually incorrect. The appellant had produced the copy of the sale agreement an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gle red sanders. Such allegations do not attract the ingredients of Section 114 of the Customs Act, 1962. 19. The learned counsel submitted that the word abetment used in section 114 of the Customs Act is not defined in the said Act. However, section 107 of IPC defines abetment, which states that a person abets the doing of a thing when he instigates any person to do that thing or engages with one or more other persons in any conspiracy for the doing of that thing or intentionally aids in the said act . The learned counsel submitted that ‗mens rea is an essential ingredient to establish abetment. The vehicle having been sold and the blank letter heads having been misused without the knowledge of appellants it cannot be said that appellants, have intentionally aided in the smuggling. Hon ble High Court of Delhi in the case of M/s. Vishnu Kumar Vs Commissioner of Customs, New Delhi reported in 2010 (260) E.L.T.356 (Del.) has held that for a charge of abetment to sustain, the ingredients of section 107 of IPC have to be fulfilled. The Hon ble High Court further held that the charge of abetment would stand substantiated only if it is proved that the abettor aids any person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore, the act of leaving blank letter heads of M/s. N.K. Transports in the trailer cannot be considered as omission amounting to abetment. He stressed that the department has not been able to establish that appellants intentionally aided the commission of the crime. Mere proof that the crime charged could not have been committed without inter-position of the alleged abettor is not enough to attract section 107 of IPC. The decision in the case of M/s.Ajoyesh Chakraborty Vs Commissioner of Customs, N.E.R. Shillong reported in 2003 (160 E.L.T.735 (Tri.- Kolkatta) was relied upon by the counsel to argue that in the said case when there was no evidence on record to show that the transport company had knowledge of illegal export, the benefit of doubt was extended to them and the personal penalty under section114 of the Customs Act, 1962 was set aside. The decision in the case of M/s. Mohamadkhan Navobkhan Pathan Vs Collector of Customs, Ahmedabad reported in 1994 (71) E.L.T. 826 (Tribunal) was referred to argue that vehicle from which the contraband goods seized was sold, it cannot be said that there was any nexus of the appellant with the prohibited goods transported in the trailer. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only a concoted story put forward to absolve from liability. This contention itself reveals the illegal omission on their part of not keeping in safe custody of such important letter heads which has aided in the act of attempt to smuggle Red Sanders. The investigation has clearly brought out the involvement of the appellants in the incident of attempt to smuggle goods out of the country. He referred to para 43 to support his contentions. He prayed that the appeal may be dismissed. 26. Heard both sides. 27. The appellants are aggrieved by the penalty of ₹ 5 lakhs imposed upon each of them under section 114 of the Customs Act, 1962. 28. The case of the department is that the letter heads of the firm (Good Transport Agency viz., M/s. N.K. Transport) of the appellant Shri A. Mohamed Naseer along with the letter heads of the Trailer Organizers Association bearing signatures facilitated the culprits, Shri Mohammed Anslam and Shri S. Raja to obtain gate pass for entry to CFS and Port. The vehicle NL02 Q-2873 which was used to carry the container belonged to the appellant Shri Farook Basha. The appellants thus facilitated and aided in the attempt to smuggle red sanders out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the crime could not have been committed without the intervention/aid of the abettor. The ‗mens rea on the part of the alleged abettor has to be established. Various decisions have been taken support of by the learned counsel to argue these points. 31. I have no quarrel with the principles enunciated in the above decisions that an innocent aid which ultimately leads to commission of crime is not sufficient to attract the charge of abetment. In the present case, the facts are brought out in para 21.02.01 to 21.02.05 of the Order in Original. For better appreciation relevant portion of para 21.01 is reproduced as under:- Since August, 2013, he had registered his company in Trailer Organiser's Association and his Firm code was N-176; that for entry into the Chennai Port, applications were issued only through Trailer Organiser's Association and that application could be only obtained from them in person; After seen and perused the documents viz. (i) letter dated 13.2.18 of the Manager, AS Shipping CFS; (ii) Chennai Port Trust - Harbour Entry Permit no.26260228 26260229, Challan no.231 dated 17.11.2017 by which the subject container TCKU1752615 brought into Chenna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only applications presented through Trailor Organizers Association by a transport agency will be considered. Thus, individual truck owners / drivers are not given gate pass for entry into the CFS / Port. From the details given by M/s. ASS-CFS, the investigation officers found that one Shri Raja driver used Trailor Truck No. NL02-Q-2873 to carry the container TCKU1752615 to the CFS and then to the port. On examination of container after unloading from the vessel it was seen to contain prohibited goods/Red Sanders. The seals affixed by the customs authorities at the CFS after stuffing the container were seen tampered. It is clear that the container was loaded with the prohibited goods before reaching the port somewhere between the time it reached the port. This could not have been done without obtaining a gate pass for entry into the port. The documents furnished by M/s. ASS-CFS show that a request letter, dated 17.11.2017 in the letter head of M/s. N.K. Transport, Chennai was submitted to Chennai Port Trust requesting for issue of daily pass to the driver Shri Raja. This request along with recommendation letter in the letter head of the Trailer Organization Association with signatu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstalment period, the person mentioned in (2) shall be bound to pay compensation, as demanded by the person mentioned in (1), along with losing the advance amount. 33. Though. it is contended that the trailor truck was sold and delivered to the purchaser Sh.Anslam on 14.11.2017, there is no evidence for the passing of consideration. Interestingly as per the documents, the gate pass were issued for entry of truck with above two persons name from 17.11.2017 to 23.11.2017. The shipping bill was filed on 15.11.2017 after which container was loaded to the vessel. The DRI Officers intercepted and offloaded the container on 22.11.2017. During the time of investigation Sh.Farook Basha has produced the sale agreement contending that he sold the vehicle to Shri Anslam. This document is produced only after coming to know about the documents unearthed from M/s.ASSA-CFS. Further, the sale agreement is not a stamped document. Shri Farook Basha admits that the truck belongs to him. The truck or Shri Anslam or Shri Raja are traceable after the incident. If Shri Farook Basha was employing Shri Anslam as acting driver and also sold vehicle to him, he ought to be able to furnish details of Shri An ..... X X X X Extracts X X X X X X X X Extracts X X X X
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