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TMI Blog2024 (2) TMI 378X X X X Extracts X X X X X X X X Extracts X X X X ..... and the only use to which the panchnama can be put is that when the panchas go into the witness box, the panchnama can be used as a contemporary record to refresh his memory. Once the two Appellants disputed the fact of recovery of confiscated gold bars from them and also disputed the panchnama dated 30.03.2019, the panch witnesses were required to be offered for cross-examination so that the truth of the contents of the panchnama and the recovery made from the two Appellants could have been established - In the present case, though the opportunity to cross-examine the two panch witnesses was allowed but the said panch witnesses never appeared for cross-examination. In this view of the matter, it would not be safe to conclude regarding recovery of confiscated gold bars from the two Appellants only on the basis of panchnama, without corroborating the contents of the same with some other evidences. There is also no allegation in the show cause notice on the basis of call record details that the location of Shri Rakesh Kumar and Shri Girish Chandra was in Kolkata anytime during the period from 28.03.2019 to 30.03.2019. Further, as rightly pointed out by the Ld. counsel for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Girish Chandra C/70094/2022 5,00,000/- 3. Pintu Verma @ Mukesh Verma C/70074/2022 25,00,000/- 4. Rinku Verma C/70076/2022 25,00,000/- 5. Deepu Verma C/70075/2022 25,00,000/- 2. The facts of the case, as detailed in the show cause notice dated 03.09.2019 are that on 30.03.2019, the Officers of Customs (P), Division Varanasi intercepted two persons namely Sri Rakesh Kumar and Sri Girish Chandra from the private parking of Cheoki Railway Station and recovered gold bar weighing 1.2 kg in two pieces from Sri Rakesh Kumar and one piece gold bar weighing 1 kg from Sri Girish Chandra. The show cause notice records that upon recovery of the said gold bars, the Government approved Valuer was called upon, who vide his report dated 30.03.2019 declared the weight of recovered 3 pieces of gold bars as 2201.430 grams valued at Rs 72,20,690/-. The show cause notice further records that on a reasonable belief that the reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and Shri Pradeep Ji of Kolkata. 2.5. The show cause notice dated 03.09.2019 was adjudicated vide Order-in-Original No. 43/ADC/2020-21 dated 26.08.2020, by which the subject gold bars were confiscated and penalties under Section 112(b) was imposed on the five Appellants along with Shri Pradeep Ji of Kolkata. 2.6. The Order-in-Original dated 26.08.2020 was then challenged by the five Appellants in separate appeals only to the extent of imposition of penalties. None of the present Appellants claimed ownership of the confiscated gold bars. By the impugned order, all the five appeals have been dismissed and imposition of penalties on all the five Appellants has been upheld. 2.7. As far as Shri Pradeep Ji of Kolkata is concerned, it appears from the records that he has not challenged the Order-in-Original dated 26.08.2020, to the extent it relates to him and consequently there are only five appeals before us filed by the present Appellants. 3. Heard Shri Nishant Mishra, ld. Counsel appearing for Shri Rakesh Kumar and Shri Girish Chandra, Shri Kartikeya Narain ld. Counsel for the other three Appellants viz. the Verma Brothers and Shri Manish Raj, ld. A.R for the Revenue. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed upon the findings recorded in the impugned order. 6. Heard ld. counsel for the Appellants and ld. A.R for the Revenue and perused the appeal records. 7. On going through the records, we find that the entire case of the Revenue is based on the fact of recovery of confiscated gold bars from Shri Rakesh Kumar and Shri Girish Chandra as recorded in Panchnama dated 30.03.2019, confessional statements of Shri Rakesh Kumar and Shri Girish Chandra and the call record details of the present Appellants and one Shri Pradeep Ji of Kolkata. 8. While the Revenue has initiated the present proceedings against the Appellants on the basis of recovery of confiscated gold bars from Shri Rakesh Kumar and Shri Girish Chandra, both the said persons have disputed the said recovery. As per them, the subject gold bars were not recovered from them and they were falsely implicated in the matter. The two Appellants were therefore disputing the correctness of the Panchnama dated 30.03.2019. Law in this regard is well settled that Panchnama is merely a record of what the panch sees and the only use to which the panchnama can be put is that when the panchas go into the witness box, the panchnama can b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disputed the panchnama dated 30.03.2019, the panch witnesses were required to be offered for cross-examination so that the truth of the contents of the panchnama and the recovery made from the two Appellants could have been established. In the present case, though the opportunity to cross-examine the two panch witnesses was allowed but the said panch witnesses never appeared for cross-examination. In this view of the matter, in our opinion, it would not be safe to conclude regarding recovery of confiscated gold bars from the two Appellants only on the basis of panchnama, without corroborating the contents of the same with some other evidences. 10. The Revenue has also relied on the confessional statements of the two Appellants, who admitted in their statements dated 30.03.2019 regarding recovery of gold bars from them and bringing the subject gold bars from Kolkata. In this regard, we find that as per the version of the Revenue, the two Appellants were apprehended from Allahabad (now Prayagraj) and were then taken to Varanasi where their respective statements were recorded at 10:00 PM and 10:30 PM respectively. However, the two Appellants, while they were in judicial custody, r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . If the statement recorded is not correct, then, the very utility of recording such a statement would get lost. It is in this context that the customs officer who is empowered under Section 108 to record statement etc. has the onerous responsibility to see to it that the statement is recorded in a fair and judicious manner providing for procedural safeguards to the concerned person to ensure that the statement so recorded, which is admissible in evidence, can meet the standard of basic judicial principles and natural justice. It is axiomatic that when a statement is admissible as a piece of evidence, the same has to conform to minimum judicial standards. Certainly a statement recorded under duress or coercion cannot be used against the person making the statement. It is for the adjudicating authority to find out whether there was any duress or coercion in the recording of such a statement since the adjudicating authority exercises quasi-judicial powers. Further, Hon ble Supreme Court in the case of Rajesh and Another Vs. State of Madhya Pradesh [2023 SCC Online SC 1202] have held as under:- 29. That apart, the manner in which the Investigating Officer (PW-16) went ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (I.O.), full particulars of panch witnesses and the time of commencing and ending must be mentioned in the Panchnama. (f) The panchnama should be attested by the panch witnesses as well as by the concerned IO. (g) Any overwriting, corrections, and errors in the Panchnama should be attested by the witnesses. (h) If a search is conducted without warrant of court Under Section 165 of the Code, the I.O. must record reasons and a search memo should be issued. 30 . 31. Recently, in Ramanand @ Nandlal Bharti vs. State of Uttar Pradesh, a 3-Judge Bench of this Court observed that the requirement of law that needs to be fulfilled before accepting the evidence of discovery is by proving the contents of the panchnama and the Investigating Officer, in his deposition, is obliged in law to prove the contents of the panchnama. It was further observed that it is only if the Investigating Officer has successfully proved the contents of the discovery panchnama in accordance with law that the prosecution would be justified in relying upon such evidence and the Trial Court may also accept the same. It was held that, in order to enable the Court to saf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s our considered view that such a statement is clearly generic and hearsay. The Revenue has also not got the confiscated gold bars tested by touchstone method to test the purity of the confiscated gold bars. In these circumstances, the initial burden to prove foreign origin of subject gold bars has not been established. 15. In view of the aforesaid discussions, we do not find necessary material for linking the present Appellants with the confiscated gold bars in the present case and therefore their role in the alleged smuggling of confiscated gold bars has not been established. The entire case of the Revenue appears to be based on assumptions and presumptions and the same cannot take place of substantive evidence and accordingly, it cannot be held that the Appellants have in any manner dealt with the goods liable to confiscation under Section 111 of the Customs Act and consequently they cannot be subjected to penalty. 16. Even otherwise, we are of the view that penalty under Section 112 (b) of the Customs Act can be imposed only if any person deals with any goods, which he/she believes or has reason to believe are liable to confiscation under Section 111 of the Customs Act. S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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