9911796707
TMI Blog2023 (9) TMI 728X X X X Extracts X X X X X X X X Extracts X X X X ..... on them. 6 pcs. of gold bars believed to be of foreign origin having inscription "PMAP SUISSE 1 KILO GOLD 995.0 PMAP ESSYEUR FONDEUR" with tampered Sl.No. were recovered from the packets in the bag with them. The value of the goods was assessed as Rs. 1,68,58,500/-. The said gold was seized on the same day on a reasonable belief that that the gold bars had been smuggled into India through an unauthorized channel and is liable for confiscation. In the statement recorded in the said date, the Appellant Nos. (1) to (4) stated that they were gold carriers of Appellant No. (5) and the impugned gold has been obtained by them on 18.05.2015 from Shri Sashikant Patil @ Banti at Dhanalaxmi Bullion Pvt. Ltd., 43 Nalini Seth Road, 1st Floor, Room No. 101, Sona Patty, Kolkata-700007. They proceeded for Howrah Station on 19.05.2015 to Board the Chambal Express. At the time of search, they were not having any documents with regard to ownership of the gold. It is stated that the said gold is to be handed over to Appellant No (5). They were arrested and produced before the CMM, Bankshal Court on 20.05.2015 and bail was rejected. 2.1 On 19.05.2015, the Customs officials visited the premises of Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gold to Appellant No. (5) against the invoices and tendered the payment related documents. 2.6 On 15.02.2016 and 16.02.2016, the Appellant No. (1) to (4) stated before the Superintendent of Customs that the seized gold were given to them by Appellant No. (5) at Allahabad for the purposes of getting gold jewellery in exchange of the said gold from Kolkata and the statements given by them on 19.05.2015 is not proper and not voluntary. Thereafter, a show-cause notice was issued to all the Appellants on 28.04.2016 for confiscation of the seized gold and imposition of penalty under Section 112 (b) and 114AA of the Customs Act, 1962. The said show-cause notice was contested by all the Appellants, but the adjudicating authority passed the following orders : (i) I order for absolute confiscation of the seized 06 (six) pieces of smuggled gold bars of foreign origin having total weight of 6 (six) kgs. and valued at Rs. 1,68,54,000/- under Section 111 (b) and Section 111 (d) of the Customs Act, 1962. (ii) I order for confiscation of the 03 (three) clothen pockets especially designed for carrying smuggled gold bars of foreign origin, of cream color (dirty), Ash color & Violet color along ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hased the said gold from Appellant No. (6) through proper Invoices and also placed the copies of invoices issued by Appellant No. (6) on record. The Appellant No. (6) also joined the investigation and submitted all records of purchase, sale invoice, bank statements etc., which certifies that the impugned gold has been sold by the Appellant No. (6) and the payment of the same was made by Appellant No. (5) through proper channel. Therefore, the Appellant No. (5) has also discharged the burden in terms of Section 123 of the Customs Act, 1962 as it has been disclosed the source of procurement of impugned gold and also payment particulars, which was made by through banking channel. He further submitted that initially, the Appellant Nos. (1) to (4) have submitted that they have acquired the possession of the said gold from Mr. Sashikant Patil, but later on, they have stated that they have received the said gold from the Appellant No. (5), Shri Rinku Verma and the revenue proceeded to investigate the matter further to reveal the truth. During investigation, it has come on record that the Appellant No. (5) has acquired the gold through proper channel from Appellant No. (6) and also placed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pon. To support his contention, he relied upon the decision of the Hon'ble Patna High Court in the case of Md.Akhtar Vs. Commissioner of Central Excise, Customs & Service Tax, Patna Vs. 2015 (323) ELT 136 (Pat.), which was upheld by the Hon'ble Apex Court as reported in 2015 (323) ELT A-27 (SC). He also relied on the decision the Tribunal in the case of R.K. Angangbi Singh Vs. Commissioner of Customs (Prev.), Shillong reported in 2018 (361) ELT 1062 (Tri.-Kolkata). He also relied on the decision of the Hon'ble High Court Kerala in the case of Commissioner of Customs, Cochin Vs. Om Prakash Khatri reported in 2019 (366) ELT 402 (Ker.) He also submitted that the Appellant Nos. (1) to (4) were failed to discharge their onus in terms of Section 123 of the Customs Act, 1962. He, therefore prayed that the impugned order is to be upheld. 5. Heard the parties in detail and considered the records placed before us. 6. We find in this case, initially at the time of investigation on 19.05.2015, 6 kgs. of gold bars were recovered from the possession of Appellant Nos. (1) to (4), who stated that they acquired the possession of gold from Shri Sashikant Patil. Although, the premises of Shri Sashi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the fourth time. By another statement dated 22-9-2000 of Shri Joy Gopal Biswas, recorded by the investigation in Judicial custody, it was stated that these 60 gold biscuits were handed over to him by his younger brother Shri Nitya Gopal Biswas. Shri Nitya Gopal Biswas also lodged his claim and produced a purchase Bill No. 422, dated 29-8-2000 from one Shri Laljibhai K. Soni, a gold dealer of Ahmedabad. Investigation accepted the statement and followed the Ahmedabad trail by carrying out the investigation at Ahmedabad in detail to refute the claim of Shri Nitya Gopal Biswas. Department never took any initiation to carry out any investigation to trace out whereabouts of Joynal named by Shri Joy Gopal Biswas in his statement dated 5-9-2000 which Revenue is claiming it in their favour. The very fact that the present consignment was the fourth one received from Joynal by Shri Joy Gopal Biswas, investigation should have taken further details about the correct address, mobile number, etc. of Joynal to know as to how Shri Joy Gopal Biswas was contacting Joynal regularly. Simultaneously, following this trail could have easily established the true nature of origin of 60 foreign marked gold w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... near Mysore which would produce about 2 tons of gold every year. That has also stopped functioning. The gap between rising demand and scant supply was invariably filled by smuggling. Estimates vary but it is expected that during the 80s on an average 250 Tons of gold was smuggled into India every year. Any smuggling is bad for the economic health of the country as it would defeat the very purpose behind imposition of restriction on import. The case of gold is more acute. Unchecked smuggling of gold would threaten the very stability of the country's currency. There was a time when the paper currency in the country was backed fully by the gold held by the Govt. Over the last century the basis and the support for the currency has shifted from Gold reserves to the country's assets. But every Central Bank still keeps a gold reserve called Monetary Reserve. Thus, gold in the hands of the Central Govt. would make the currency strong and conversely the gold in the hands of the public would weaken the currency. To wean away the Indian public from the craze of the gold and also to ensure stability of the currency the Gold (Control) Act, 1968 was enacted. In fact, the provisions had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd in pursuance of the relaxations made in the Import Policy and the Baggage Rules framed under that very Act, there is a flood of foreign marked gold in the town. Such gold changes hands several times on importation. Since the repeal of the Gold (Control) Act in 1968, there is no legal requirement for the buyers and sellers of gold to maintain any registers nor is there any requirement to issue invoices under any Central Act." 6.5 CESTAT, Kolkata in the case of Giridhari Dubey v. C.C. (P), Kolkata [2001 (11) LCX 0215) = 2002 (149) E.L.T. 427 (Tri. - Mumbai)] also made following observations in para 3(c) of this order : In "(c) view of our findings we would set aside the order of confiscation of 32 pcs. of gold also relying at the findings of this Tribunal in the case of S.K. Chains reported in 2001 (127) E.L.T. 415 wherein in Para 10 of the reported decision the Tribunal has considered the effects of the liberalized policy as regards import and dealing in gold and thereafter concluded that that onus as placed under Section 123 was discharged in the facts of that case. We would also considering the onus under Section 123 has been discharged in the facts of this case by the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e accepted. A "34. person accused of commission of an offence is not expected to prove to the hilt that confession had been obtained from him by any inducement, threat or promise by a person in authority. The burden is on the prosecution to show that the confession is voluntary in nature and not obtained as an outcome of threat, etc. if the same is to be relied upon solely for the purpose of securing a conviction. With a view to arrive at a finding as regards the voluntary nature of statement or otherwise of a confession which has since been retracted, the Court must bear in mind the attending circumstances which would include the time of retraction, the nature thereof, the manner in which such retraction has been made and other relevant factors. Law does not say that the accused has to prove that retraction of confession made by him was because of threat, coercion, etc. but the requirement is that it may appear to the court as such." In the present case the statements of both Smt. Chhabi Biswas and Shri Joy Gopal Biswas were written by one of the panch witnesses Shri Chandan Dey. Even their first statements dated 5-9-2000 only convey that they believed that foreign marked gold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e High Court has held that the burden under Section 123 of the Customs Act, 1962, has been discharged. 6.3 Further in the case of Gopal Prasad, the Tribunal has found that the documents produced for procurement of impugned gold were not found to be false and seller of the gold confirmed the sale, the burden under Section 123 of the Customs Act, 1962, has been discharged. 6.4 In the case of Nand Kishore Sumani (supra), the Tribunal held that when the purchase bills were furnished and the same was confirmed by the seller, the burden under Section 123 of the Customs Act, 1962, has been discharged. 6.5 Further we find that this Tribunal in the case of Hari Manthan Jewellery House Private Limited (supra), has held that when the purchase bills were produced, which were confirmed by the seller of the gold, the burden under Section 123 of the Customs Act, 1962, has been discharged and the gold is not liable to be confiscated. 7. We further take note of the fact that the ld. A.R. for the Revenue has relied upon the decision in the case of Md. Akhtar (supra), the facts of the said case are distinguishable. In the said case, the seller of the gold was found to be bogus on enquiry. Therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt No. 6 -Pradeep Kumar Bothra, who also has at a rather quite belated stage joined the investigations and submitted to the authorities the purported records of sale/purchase/payments etc. towards the seized gold for perusal and necessary action by the authorities and based on the decisions in the following cases :- 1. Nitya Gopal Biswas vs. Commissioner of Customs (Prev.) Kolkata [2016 (344) ELT 209 (Tri.-Kol.)] 2. Ratan Kumar Saha vs. Commissioner of Customs, Patna [2021 (375) ELT 435 (Tri.-Kol.)] 3. Union of India vs. Imtiaz Iqbal Pothiawala [2019 (365) ELT 167 Bom.] 4. Gopal Prasad vs. C.C.E., Customs & S.T., Patna [2018 (362) ELT (309) (Tri.-Kol.)] 5. Nand Kishore Sumani vs. Commr. Of Cus., C.Ex& S.T., Siliguri [2016 (333) ELT 448 (Tri.-Kol.)] has held satisfactory discharge of the onus in law cast upon the appellants. 14. The Hon'ble Member (Judicial) has therefore arrived at a finding that the said seized and confiscated gold is not liable to confiscation. As a consequence he has set aside the impugned order and allowed the appeals with consequential relief. 15. With reference to the aforesaid order of the learned Hon'ble Member (Judicial) in paragraph 11 above, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for whom they acted as carriers, with all of them admitting to have worked for Rinku Verma multiple times in the past. Of these Rajendra Kumar having acted as a carrier for Rinku Verma for the maximum length of time i.e. upto 20-25 times in the past, from Kolkata. The four accused intimated that they had collected the said gold bars from one Shashi Kant Patil @ Banti at Dhanlakshmi Bullion Pvt. Ltd., Sonapati, Kolkata on 18.05.2015 and were returning to Allahabad to hand over the said gold to Rinku Verma. All of them though have intimated to have worked as carriers in the past as well for Rinku Verma, ranging from 6 months to about 4 years. There is thus complete unanimity in material particulars as well as in substance in the information furnished in the initial statement of all the four accused as recorded before the authorities as regards the source of procurement of gold, the person for whom they acted as carriers, the amount paid to each of them per trip per kg. of gold and this material piece of evidence is of immense significant importance having a direct bearing to the facto legal matrix of the case. As, these aspects having a direct bearing in the matter, they cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onths of the seizure of the gold to which he claims ownership. 12.10.2015 The four carriers in response to a communication issued under Section 150 of Customs Act for pretrial disposal of gold under Section 110((1A) of the Customs Act, submits that the same be returned to Rinku Verma. Rinku Verma for the first time claims the seized gold vide his letter dated (not on records and not known). (It is for the first time that Rinku Verma has claimed ownership of the seized confiscated 6 kg. of gold, valued at Rs. 1,68,54,000/-, after nearly 5 months of the seizure. It is therefore of interest to note that claiming ownership of such high valued property (6 kg. of gold), is for the first time emanating from Rinku Verma after nearly 150 days of deprivation and seizure. Except for a mere bland submission of claim for ownership no other documentary evidence in support of ownership and licit acquisition of foreign marked gold has been tendered by the claimant, despite significant lapse of time. It further be noted, that there is only a mention of this letter and the same is nowhere on record in the appeal papers. In the absence, thus the first date of staking claim to seized gold shifts to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f rendered upon advice and tutorship. Also there is no explanation/reason whatsoever, for the grossly delayed change in version/retraction. and an imperfect retraction made after nearly 9 months of seizure. 18. From the aforesaid chronology and the flow of events in the matter, it is amply clear that the course of action and conduct of all accused has thereafter proceeded, post seizure, in a manner so as to cover up for the time required for assemblance of documents evidencing legal possession of the foreign marked gold. The conduct of Rinku Verma as also others in repeatedly dishonouring summons and the deafening silence maintained all through for initial five months of the investigations, was merely to buy time, inhibit expeditious conduct of enquiry and in the interregnum enable them shop for a procurement source of documentation in order to justify their legal possession of seized gold. It is fairly well unexplained and a complete silence is maintained over the fact that goods valued at over Rs. One and a half crore are not claimed any ownership, at all by the so called alleged owner of the foreign marked gold for several months, nor is there a word in the matter from him till ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were wrong. All this came to be done well beyond a reasonable length of time after nearly nine months and without any plausible explanation for the same. The said change in instance are therefore clearly discountable as being tutored, managed, involuntary and an afterthought and therefore hold no evidentiary value. Also it is established law that statement tendered before a Customs Officer is in the nature of substantive evidence and culpability of the accused can even be based solely thereupon. The contradiction in the testimonies of Shashi Kant Patil and Rinku Verma is self evident. Thus when quizzed for telephonic calls between him and Rinku Verma, as obtained from CDR, Shashi Kant Patil expresses his complete ignorance and ascribes it to be one of the many telephone calls that he gets from people/customers enquiring about the gold rate. On the contrary Rinku Verma in his statement tendered before the authorities has maintained that he holds business dealings with Shashi Kant Patil amongst others. Specifically stated, Rinku Verma admits in his statement dated 26/10/2015 that he had been doing business for last one year with Shashi Kant Patil of Dhanlaxmi Bullion Pvt. Ltd. 20. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oper retraction tendered perhaps on the basis of legal advice received and may be a certain kind of pressure/inducement put forth by Rinku Verma on the four of the said accused appellants. 22. It is further of interest to note that as the four accused - appellants 1-4, viz. Rajendra Kumar Dhulia, Saurabh, Shubham Verma and Golu Verma, were mere gold carriers, they obviously did not have any locus to object to the pretrial disposal and seek the return of the seized gold to Rinku Verma and what is noteworthy herein that such correspondence is taking place nearly five months after the seizure of 6 kg of foreign marked gold, valued at Rs. 1.68 crore, the person claiming to be the owner of the said gold is still invisible having not surfaced in person nor having appeared before the authorities to tender his statement, or in any which way except for the utterance by the four accused appellants 1-4, viz. Rajendra Kumar Verma, Saurabh, Shubhram Verma Golu Verma. CHANGE IN STANCE 23. It also baffles imagination to ascertain, as to how it is that the 4 appellants no. 1-4 viz. Golu Verma, Saurabh, Shubhram Verma, Rajendra Kumar Dhuriya, who nine months later have denied knowledge about Shr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d with the rigors it deserves and any proof tendered thereto has to be evaluated in terms of all the elements and connected, co-ordinated and co- related with stray pieces of evidence as mentioned in earlier paragraphs. After the initial burden of acquisition of reasonable belief has been discharged by the prosecution, it is for the accused to establish lawful importation and acquisition of the foreign marked gold, recovered from their possession or the claimant thereof. DOCUMENT ANALYSIS 26. Further, it be noted that the purchase of said 6 kg. of seized/confiscated gold, as imputed by Rinku Verma, made against 4 bills dated 02.05.2015 for 1 kg., dated 05.05.2015 for 2 kg., 09.05.2015 for 2kg and dated 12.05.2015 for 1 kg are devoid of several vital and materials particulars. While it may not be mandatory, it is certainly observable that the said bills, if were at all point of time available with the noticee (particularly Rinku Verma or the four carriers), what prevented them from being presented before the authorities and in modern days of strengthened channels of faster mode of communication and technology, for a moment if it is presumed that the said bills were not available w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e no sales of gold in between to any other customer and designed so as to conveniently fit the four entries in the ledger records in the end. 28. It certainly cannot be the case that Snehal Gems Pvt. Ltd. have not made sale of gold to other customers during a 10 day period between May 2 and May 12. Thus it was all so managed to sort of sanitize the books of accounts of Snehal Gems so as to forsee minimalistic enquiries into the matter. The fact that no evidence of any previous sale of gold by Snehal Gems to Rinku Verma is tendered by either of the two sides, as to buttress their proposition of regular trade and business relations between the two is a pointer towards a massive cover up hatched by Rinku Verma in collusion with Snehal Gems towards attempted legitimizing of the gold seized. This one time documentation is an exercise in securing legitimacy and overcome the onus as cast upon Rinku Verma - the claimant of the seized/confiscated gold. Also it is interesting to note that prior to the purported sale and even thereafter, there has been no other sale to Rinku Verma at least till the completion of enquiries spread nearly over a one year period. The imputed sales over a ten day ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Director of Snehal Gems that he was not in possession of any import documentation in support of licit import of the foreign marked gold. This singular admission of Pradeep Bothra is the proverbial nail in the coffin to conclusively establish that there was no licit import of the seized/confiscated gold at all in the first place and all their efforts at preparation of fictitious sales deal and documentation were no more than mere ivory towers. It establishes the ill machinations and designs to cover up for the purported seizure of 6 kgs of foreign marked gold and attempts to legitimize it. The conspiracy theory hatched by Rinku Verma in cahoots with Pradeep Bothra simply falls apart and is fully exposed as a determined but a failed attempt at legitimization and a cover up for the seized/confiscated 6 kg of foreign marked gold. 30. Moreover, it defies all pragmatism and is bereft of any sound logic, rather it cannot get more insane than this that one supposedly is in possession of all required licit documentation to establish legal ownership and acquisition but still feels it appropriate to allow their persons/employees to not only go to jail but stay put there for over a month an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not even a regular customer of Snehal Gems (merely being a one time purchaser). As evident from the records tendered, the payments for such sale were made between 19 August 2015 and 22 September 2015 (i.e. after three months from the date of seizure and upto four months of the said date) and beyond four months of the allegedly stated date of sale/purchase. No reasons have been conveyed for this inordinately long time for payment towards purchase of gold essentially as a credit sale, by either of the two viz. Rinku Verma or Pradeep Bothra. Also, as per the financial accounts submitted it may be noted that even as late as on 22 September 2015 i.e even after four months of the date of seizure or almost five months after said purchase, by Rinku Verma, a payment of over Rs. Thirty eight lakh (Rs. 38,36,750/- to be precise) i.e. almost 25% of the value of the seized gold was still outstanding from Rinku Verma as due to Pradeep Kumar Bothra, Direrctor of Snehal Gems Pvt. Ltd. and no evidence of having remitted the same could be supplied. 33. What these bits of evidence aptly establish is the enormous amount of falsification, manipulation and coverup undertaken in an organized manner to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Verma do not contain any Sl. No. as the same were tampered, can you state the reason for tampering? Ans. It is not possible for me to confirm this Q. 12. State the source of acquiring of gold sold to Srhi Rinku Verma? Ans. Local Purchase from Dealers. Q. 13. Did Shir Rinku Verma make payments regarding purchase of gold seized for 6lcg gold bars. Ans. I have submitted the payment related documents, which confirms the payment towards the gold sold to him, however it cannot be confirmed it is for seized gold. 35. This assertion of categorical negation that there is no evidence (by way of import documents), to establish the imported character of seized/confiscated foreign marked gold or to relate it with downstream local dealers with documentary evidence, or to even link it for certainty with the purported invoices of Snehal Gems, tendered by Rinku Verma to the department by Pradeep Bothra supports fully, the coverup version. This is thus a complete failure at an attempt to cross the threshold of Section 123 of Customs Act, and the onus that has befallen upon Rinku Verma, as a claimant of the seized/confiscated foreign marked gold. 36. The fact of categorical assertion tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t investigators to easily ascertain the truth about fabrication of the invoices. Further, the number of each of the seized-1 kg gold bar is obliterated, scratched out and deliberately tampered. Again done with clear intents to digress and derail, deviate and divert the investigations. The appellant in the plethora of documents filed as part of his paper book evidencing business transactions (sale and purchase) of gold and diamonds of Snehal Gems - could not and did not include even a single solitary purchase voucher of gold of 1 kg bar of 995 purity, though they have included in the paper book purchase vouchers for gold of 995 purity for 150 gms, 242 gms, 417.839 gms and several of them of cut and polished diamonds (Needlessly enclosed as part of paper book - completely unwarranted). All this is again carried out with intents and singular objective of attempting to befool the investigation and create confusion. On the subject it may be of relevance to state here that at Pg. 161 of the paper book is enclosed the following document: This appears to be again a clever attempt at fraudulent conduct. From the above it is noted that the top part of the page is clearly marked/washed out. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missing links completely puncture and demolish the appellant Rinku Verma's theory of the legal possession of the seized foreign gold. 40. It is intriguing to note that for a secondary supplier Snehal Gems while a plethora of copies of various financial transactional statements, invoices etc. are all tendered as part of paper book(from Feb. to Sep-Oct. 2015) however, in respect of the parties primarily connected in the impugned appeal-particularly Rinku Verma - there is no transactional document or ledger copy etc. tendered to the investigators by him, indicating gold supplied by/to Rinku Verma, except for the four fabricated and tailor made invoices said to be towards sale of gold to him. 41. Moreover Pradeep Bothra, the Director of Snehal Gems could not identify the accused persons appellant 1-4 namely Rajendra Kumar Dhulia, Saurabh, Shubham Verma and Golu Verma (this aspect of enquiry is most relevant in view of the statement of Rinku Verma that the four had been working for him and he had business relations with the former. Moreover, Pradeep Bothra, as stated earlier, could not provide any import document in respect of the said seized gold sold by him. His categorical assertio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his onus under Section 123 of the Customs Act. Admitting the change in stance of the four accused appellant No. 1-4 viz. Rajendra Kumar Dhulia, Saurabh, Shubham Verma and Golu Verma, it was merely his contention (Rinku Verma) that in subsequent statements dated 15/02/2016 of Rajendra Kumar Dhuriya and Saurathand dated 16/02/2016 of Shubham Verma and Golu Verma the four accused had intimated that the gold was handed over to them by Rinku Verma for its exchange at Kolkata. This proposition is unacceptable in view of what has been discussed in earlier paras. 45. As for the role of the four accused appellant No. 1-4 viz. Rajendra Kumar Dhulia, Saurabh, Shubham Verma and Golu Vermais concerned, it may be noted that the four aforesaid persons admitted in their voluntary statement on 19.05.2015 that they were gold carriers for Rinku Verma of Katra, Manmohan Park, Allahabad. Rinku Verma also in his statement before the investigating authority has admitted the said four persons worked for him. Moreover, it is significant that there was no change in the version of the accused and the contents of the initial first statement tendered by them were maintained, even in their subsequent statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cumentation, payments made thereto, details of persons, addresses, phone numbers both for persons from where such foreign marked gold was procured, as well as for whom it was meant to be delivered to, details of their employment and for whom they worked for, the monetary compensation they received for their job, the period for which they have been working, the number of such previous trips undertaken etc. besides their own personal information such as the place of stay in Kolkata, duration of stay, their place of stay at Allahabad, education etc. There is no allegation, for these statements tendered on 19/05/2023 as being involuntary or coerced upon or being forced upon to state so or any other allegation of inducement etc. as could cast a shadow of doubt on the veracity and truthfulness, accuracy and bonafides of the said statements. 48. Furthermore, what is important is the aspect that material facts contained in these statements are not only corroborated with one another but also with the material facts on ground. There is thus no reason to doubt the veracity of these statements. What affixes a stamp of bonafideness, correctness and truthfulness to the contents of these volunta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made about atrocity, duress, coercion, inducement or the like before the Magistrate. Hence the retraction or rather the modified version (nine months later), is certainly an afterthought, made at the behest of none else but Rinku Verma - the claimant of the said seized/confiscated gold, based upon expert/legal advice rendered. It thus is neither voluntary nor truthful in its contents and is therefore dismissed as lacking any evidentiary value. CASE LAW ANALYSIS. 51. In so far as the case laws cited by the Hon'ble Member (Judicial) in support of his findings, is concerned, the following paras are put forward (i) Nitya Gopal Biswas Vs. Commissioner of Customs. It is pertinent to observe that unlike the present case, in this case the claimant had filed his claim towards the foreign marked gold biscuits seized with the authorities, almost immediately after the seizure and interception of gold biscuits. Para 2.1 clearly points out this fact. Relevant portion of the said Para is reproduced as hereunder:- That 60 gold biscuits were given to him by the younger brother Shri Nitya Gopal Biswas at 2 p.m. on 5-9-2000 for delivering the same back to him near Sealdah. That on the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ala. The evidence towards legitimate possession of the 575 gold bars was submitted within less than 24 hrs., of seizure i.e. on the very next day of the seizure and in fact around the time the statement of accused was recorded on 09.03.2000. This was further corroborated almost real time. Briefly, the facts of the said case are as under : "4. (a) On 8th March, 2000, 575 gold bars valued at Rs. 3.09 crore were found along with Indian currency of Rs. 21 lakhs from a cavity in a jeep, belonging to respondent No. 1. At that time, the jeep was being driven by Mr. Anis Ashraf (Driver of respondent No. 1); (b) Respondent No. 1 and his driver were not able to produce any documents in support of legal possession of the 575 gold bars and Indian currency of Rs. 21 lakhs. This led to a reasonable belief on the part of the officers of the respondent that the goods are liable for confiscation. Therefore, the 575 gold bars and Rs. 21 lakhs cash found were seized under Section 110 read with Section 123 of the Act. This as gold is a notified goods under Section 123 of the Act, while cash was seized in the reasonable belief that it is sale proceeds of smuggled goods; (c)---------- (d) On 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bill. It is therefore evident that there was no time lag, whatsoever in demonstrating the legitimate possession of the gold under seizure. Para 5 of the said order is reproduced for purpose of greater clarity. "I find from the impugned order that Shri Sujit Kumar was intercepted by the SSB officers on 19.04.2014. Subsequently, SSB officers handed over Shri Sujit Kumar and the seized material to the Customs Officers, Motihari. Shri Sujit Kumar, in his statement dated 20.04.2014 and 21.04.2014, stated that the seized gold biscuit was given to him by Shri Chandreshwar Prasad/Shah. The gold was scheduled for delivery to Shri Mahavir Shah/Prasad in his shop M/s. Shakuntala Jewellers at bakergunj, Patna. It is also stated that both Shri Chandreshwar Prasad/Shah and Shri Gopal Prasad/Shah used to carry gold from Nepal to India illegally. Shri Gopal Prasad/Shah by his letter dated 10.05.2014 addressed to the Commissioner of Customs, Patna stated that he was engaged in manufacture and sale of gold and silver ornaments and running a jewellery shop by the name of Saraf Jewellers. He stated that he purchased two pieces of gold bars from M/s. Bhwana International, Chandni Chowk, Delhi on 14. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... day of seizure itself claimed the ownership of the seized goods, unlike the present matter wherein the original claimant surfaces after five months of seizure. Evidence indicating final transaction thereof was also submitted to the authorities and even discreet enquiry conducted by the authorities with the supplier of the said gold found the matter to be in support of the appellant. Under the circumstances, the ratio of this case law is clearly not applicable to the present matter 52. In view of the aforesaid discussions on each of the case laws, the support of which the Hon'ble Member (J) has extensively drawn upon in arriving at his findings, to my mind are inapplicable to the present appeal and are clearly distinguishable with the facts of the present matter, both in factual contents as well as the legal perspective in terms of Section 123 of the Act. Thus the ratio of none of the said case laws actually comes to the rescue of the appellants and no support can be drawn therefrom in support of the pleadings of the appellant. Disregarding, the applicability of the pronouncements of the aforesaid decisions as discussed in para 51, I am of the view that the appellants have failed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arrier on 28th April, 1996. According to us the said retraction was an afterthought. Had the Carrier given the statement under Section 108 of the Act under coercion he would have made complaint before the Chief Judicial Magistrate. Although, the Tribunal did find that there was some tampering of marks and numbers on the gold bars seized form the Carrier, the Tribunal erred in holding that mere tampering of marks and numbers did not prove that the gold bars were of foreign origin. The fact that there was tampering of the marks and numbers of the seized gold bars coupled with the fact that the Owner thereof could not disclose the source of acquisition should necessarily lead to an inference that the seized gold bars were of foreign origin, smuggled into the territory of India." (Emphasis Supplied) The initial testimonies of the four appellants 1-4 viz. Rajendra Kumar Dhuriya, Sourabh, Shubham Verma and Golu Verma, thus cannot be washed off in thin air. (ii) In view of my findings in earlier paras and the fact that the two statements tendered by the appellants 1-4 viz. Rajendra Kumar Dhuriya, Sourabh, Shubham Verma and Golu Verma, are found to be voluntary, there is no doubt that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble from the window of his bed- room through which he or family members could always watch anyone frequenting the place where the contraband was concealed. This fact becomes more relevant when we consider that after concealment of the contraband in the compound one would ensure that others having access to the compound may not indulge in digging and carrying away the same. As soon as the appellant and/or the members of his family had sight of such visitor or movement by others, they would immediately catch hold of such person or would charge them. Obviously, therefore, it would be the appellant who had concealed 200 gold biscuits of foreign marking in is compound at a place always visible from his bed-room window. Therefore, the High Court was right in its conclusion, though for different reasons, that Ex. P-4 is a voluntary statement and was not influenced by threat, duress or inducement etc. Therefore, it is a voluntary statement given by the appellant and is a true one. 20. The question then is : whether the retracted confessional statement requires corroboration from any other independent evidence? It is seen that the evidence in this case consists of the confessional stateme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prover or an accomplice in which case corroboration is required on material particulars of the prosecution case. Each case would, therefore, require to be examined in the light of the facts and circumstances in which the confession came to be made and whether or not it was voluntary and true. These require to be tested in the light of given set of facts. The high degree of proof and probative value is insisted in capital offences. 21. In Kashmira Singh's case the co-accused, Gurcharan Singh made a confession. The question arose whether the confession could be relied upon to prove the prosecution case against the appellant Kashmira Singh. In that context, Bose, J. speaking for bench of three-Judges laid down the law that the Court requires to marshal the evidence against the accused excluding the confession altogether from consideration. If the evidence de hors the confession proves the guilt of the appellant, the confession of the co-accused could be used to corroborate the prosecution case to lend assurance to the Court to convict the appellant. The Court considered the evidence led by the prosecution, de hors the confession of co-accused and held that the evidence was not suffi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence finds that the retracted confession is true, that part of the inculpatory portion could be relied upon to base conviction. However, the prudence and practice require that Court would seek assurance getting corroboration from other evidence adduced by the prosecution. 26. In Naresh J. Sukhawani Vs. Union of India - 1996 (83) E.L.T. 258 (S.C) = 1995 Supp. 4 SCC 663 a two-Judge Bench [to which one of us, K. Ramaswamy, J., was a member] had held in para 4 that the statement recorded under Section 108 of the Act forms a substantive evidence inculpating the petitioner therein with the contravention of the provisions of the Customs Act as he had attempted to export foreign exchange out of India. The statement made by another person inculpating the petitioner therein could be used against him as substantive evidence. Of course, the proceedings therein were for confiscation of the contraband. In Surjeet Singh Chhabra Vs. Union of India - 1997 (89) E.L.T. 646, decided by a two- Judge Bench to which one of us, K. Ramaswamy, J., was a member the petitioner made a confession under Section 108. The proceedings on the basis thereof were taken for confiscation of the goods. He filed a writ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of PWs 2, 3 and 5. There was nothing for PW-3 to speak falsehood against the appellant who is a friend of him. PWs 2 and 5 also withstood the grueling cross-examination. There is nothing to disbelieve their evidence. The appellant herein made statement under Section 108 at 1 p.m. on December 6, 1980, i.e., after four hours. It is unlikely that during that short period PW-2 and 5 would have obtained the retracted confession under Ex. P-4 in his own hand- writing running into 5 typed pages under threat or duress or promise. No doubt the wealth of details by itself is not an assurance of its voluntary character. The totality of the facts and circumstances would be taken into account. On a consideration of the evidence the High Court accepted that Ex. P-4 is a voluntary and true confessional statement and accordingly it convicted the appellant of the offences. It is seen that Ex. P-4 was given in furtherance of the statutory compulsion and the appellant made statement in unequivocal terms admitting the guilt. It is seen that in Barkat Ram's case, this Court accepted the retracted confessional statement and upheld, on that basis, the conviction. In Vallabhdas Liladhar's case and also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is no illegality in the approach adopted by the learned Judge. We hold that the learned Judge was right in his findings that the prosecution has proved the case based upon the confession of the appellant given in Ex. P-4 under Section 108 of the Evidence Act and the evidence of PWs 2, 3 and 5. The prosecution proved the case beyond doubt and the High Court has committed no error of law." (Emphasis Supplied) (iii) It may further be pointed out that a co-ordinate bench of the Tribunal in the case of Rajesh Pawar Vs. Commissioner of Customs.(P), West Bengal, Kolkata . 2003 (152) ELT - 201 (Tri-Kol.), had dismissed the plea of retraction of the statement based on the grounds of given under pressure, when no such plea was raised before the CJM at the time of making of the bail application. It also observed that there was no basis to tamper with the makings on the gold bar were it sourced legally. The observations of the Tribunal in para 6 of its order are very pertinent hence reproduced hereunder: "6. The fact remains that 11 pcs. Of foreign gold biscuits have been recovered from the appellant's possession. In his initial statement, he has admitted that these gold biscuits wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted." In appeal before the High Court at Calcutta the Hon'ble High Court held the drawl of adverse inference upon failure to discharge the burden Cast upon under Section 123, as to be appropriate and logical and therefore the said order of the Tribunal was maintained [2020 (372) ELT - 683 Cal] by the Hon'ble High Court. In stating so, it reversed the order of the single Bench [2014 (309) ELT - 600 Cal.] that had faulted upon the Tribunals order. In addition even costs were imposed on the appellants in the matter besides even categorizing the defence arguments as dishonest. Further, the SLP filed by the accused against the said order of the DB also got to be dismissed [2022 (382) ELT - A 99SC]. (iv) Also, in the case of Mohamadbhai Chotubhai Cutpiecewala and Another Vs. Additional Collector of Customs 1986 (25) ELT - 413 T., it is clear that a spontaneous statement deserves consideration and cannot be merely rejected by a belated retraction. This is so as the same is given without premediation, ill will, bias etc. (v) It may be pertinent to also advert to the case of Phoola Ram V. Commissioner of Customs, Jaipur 2007 (208) ELT - 308 (Tri - Del.), wherein non-response to the summ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt payment of the purchase of agricultural land. In the absence, of any such averments on the first instance, the statements recorded by the authorities of appellant no. '2' on 23-10-97 indicates that the appellant no. '2' was carrying smuggled foreign marked gold biscuits and the Indian currency, which was sale proceeds of smuggled silver. Further, I find that appellant no. '4' had claimed the ownership of the seized foreign marked gold biscuits and Indian currency. It was the contention of the appellant no. '4' that he had legally purchased these gold biscuits from M/s Dhan Cholia Sons, Delhi vide bill '12' dated 17-10-97. I find from records that the authorities had visited the residential/business premises of the appellant no. '4' in Bikaner on 24-10-97. On that date, appellant no. '4' was not available but his son was present in the residence/business premises. The search of the business premises did not reveal any sale or purchase of the gold and nor did son of appellant no. '4' produce any record regarding the purchases of foreign marked gold biscuits and the currency being in possession for sale and purchase transaction of agricultural land. I find from records that the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndicated on the invoices on M/s. Dhan Cholia Sons, Delhi. In the absence of any direct evidence regarding the licit possession of 5 foreign marked gold biscuits in the hands of appellant no. '2' and appellant no.'4', the absolute confiscation as ordered by the lower authorities is correct and does not require any interference." (Emphasis Supplied) (vi) In the case of Jamtaraj Kewalji Govani Vs. State of Maharashtra AIR 1968 SC - 178 the Hon'ble Apex Court while considering the matter had observed that in view of the time gap between the date of seizure and the submission of documents, the necessary inference in the case has to be drawn. (vii) Even in the case of Rasilaben H. Rathod Vs. Commissioner of Customs, Ahmedabad 2003 (156) ELT 675 T., involving a seizure of 58320(58.320 kgs) grams of foreign marked gold this Tribunal had categorically held the bills as produced by the party to show the acquisition of gold as licit, to be non acceptable. (viii) Moreover, when documentary evidence is tendered in support of licit acquisition of gold (to which onus under Section 123 applies), it is of paramount importance and rather formidable to ensure 100% accuracy and matching of the goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lear, categorical and comprehensible that the concerted and clever attempt at creation of documents and the said documentary evidence tendered in order to demonstrate the licit acquisition of foreign marked gold is false, forged and fabricated. The attempted rebuttal of the onus cast upon the appellants under Section 123 of Customs Act 62 has failed completely and very miserably. 56. In the given circumstances and my foregoing discussions, I am of the view that the department has successfully discharged its primary onus at the preliminary stage and with the onus cast onto the appellants under Section 123, not having been discharged in the least, the order assailed warrants no interference and is required to be upheld. Having thus arrived at the irresistible conclusion that contraband gold smuggled from a third country of origin is liable to absolute confiscation and the appellants subjected to imposition of penalty, l order accordingly. Under the circumstances, I uphold the Order-in-Original, confiscating absolutely the said 6kg foreign marked gold alongwith the other items and also uphold the imposition of penalty as contained in operative part of the adjudication order (i) to (x ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m were given a complete go by. Necessary action for pretrial disposal of seized gold under Section 110(1A) of the Customs act, is taken up, several months after seizure, thereby if not negating, severally diluting the very purpose of the enactment. That nothing can be worse than this that the CDR data of the prime accused, Rinku Verma appears to have not been investigated at all. There being no reference to it in the show cause notice. Likewise no locational details of the telephone numbers of the four carriers were sought for, to ascertain confirm the actual pick up spot of the foreign marked gold as stated in original statements and refuted/denied several months later. Even the show cause notice is also vaguely and casually drafted, with several important details not having been gone into, it even does not list the RUDs. There are several other serious breaches in the investigations undertaken by the department. It is time therefore, that the department trained its officers to undertake investigations in a professional manner, and each and every aspect is looked into. Speed, is the essence in conduct of such investigations, and that should be the norm. The drafting of notice shou ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
