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TMI Blog2024 (9) TMI 560X X X X Extracts X X X X X X X X Extracts X X X X ..... wise there was material available to prove the case which was mainly the currency recovered though from Shri Bala Ravi Kishore but he was carrying it at the instance of the appellant. We are unable to accept that merely for the reason currency was not recovered from the appellant, a case would not be made out. The facts available on record are sufficient to prove the contravention. It is not only that the currency recovered was meant for its delivery to a person out of India but there was no permission to carry the currency. Director of Enforcement has thus rightly concluded about the contravention of the provisions to impose penalty on the appellant. The appellant has made a reference of Section 49(3) of the Act of 1999 to submit that the adjudication was not initiated within the sunset period of two years. It is only on the ground that notices were not served before the expiry of the period of two years while the notice was issued prior to the period of two years. Thus, we are unable to accept the argument that the proceedings were initiated after the sunset period of two years, rather issuance of Show Cause Notice itself shows initiation of the proceedings and that too within th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the RBI to acquire or possess the foreign currency and to deliver it to a person in Singapore. 3. In the statement of Bala Ravi Kishore, name of Shri S. Ramzan was disclosed to whom the currency was to be delivered. It is also that the currency found with him was routed through his brother-in-law otherwise given by one Shri Raheem, a resident of Chennai. The currency was sent to Bala Ravi Kishore through the driver Syed Mohd. Yousuf. The statements of others which include Shri B. Ramesh Babu, brother of Bala Ravi Kishore were also recorded under Section 108 of the Customs Act. He had acknowledged his meeting with Syed Mohd. Yousuf, the driver of his brother-in-lawShivaprasad. He received Syed Mohd. Yousuf at the railway station on 10.12.1999 on the instructions of his brother-in-law. Then, a packet was received by him from Syed Mohd. Yousuf and delivered the same to Bala Ravi Kishore. 4. The statements of Syed Mohd. Yousuf and appellant B. Shivaprasad were also recorded. In the statement of Syed Mohd. Yousuf, he admitted that being a driver of the appellant, he met Mr. Rahim in Burma Bazar, Chennai and collected foreign currency and delivered it to Shivaprasad and on his instru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Noor Aga v. State of Punjab and Anr. reported in (2008) 16 SCC 417 has been given. It has been held that the statement recorded under Section 108 of the Customs Act cannot be used to prosecute an accused under the NDPS Act. A further reference of the judgment of the Apex Court in the case of KT.M.S. Mohd. v. Union of India reported in 1992 (2) Crimes 314 has been given. 8. The further argument is that even if the statement recorded under Section 108 of the Customs Act can be relied, the appellant had retracted the statement in a period of 12 days and thereby the retracted statement could not be relied by the respondent. It can be only when they reject the retraction for valid reason or when material is available to corroborate the statements. In the instant case, the appellant had retracted the statement yet the respondent placed reliance on it to pass the impugned order. It is more so when there was no material to corroborate the statements. Thus, on the aforesaid grounds also, the impugned order deserves to be set aside. 9. The third argument was raised in reference to the facts of the case and Sections 8(1) and 9(1)(a) of the Act of 1973. It is stated that the possession of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rival arguments while dealing with the arguments raised by the learned counsel for the appellant. Findings of the Tribunal. 13. The material available on record shows that the officers of the Directorate of Revenue Intelligence, Hyderabad seized foreign exchange of various denominations equivalent to Rs.54,20,854 at Hyderabad Airport on 11.12.1999 from Bala Ravi Kishore. The statements of all those involved in the case were recorded and summary of those statements would be relevant and are quoted hereunder: Bala Ravi Kishore - statement u/s 108 of Customs Act, 1962 dated 11.12.1999 and 12.12.1999, wherein he inter alia admitted: i. That he was carrying foreign currency to Singapore; and ii. That his brother-in-law Sh. B. Shiva Prasad (Appellant), R/o 3, Agastiyar Street, Gandhi Nagar, Salegramam, Chennai, had given him the said foreign currency for delivery to a person by name Sh. S. Ramzan at Singapore; iii. That he did not had any requisite valid permission from Sh. Shiva Prasad of Chennai during September, 1999 and delivered the same to persons staying in Singapore. B. Shiva Prasad (Brother-in-law of Bala Ravi Kishore) -Statement u/s 108 of Customs Act, 1962 dated 11.12.1999 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the notice was sent to the appellant on several occasions but he did not appear. It is, however, a fact that notice sent to the appellant was received by his wife on one occasion with an endorsement that the appellant is out of India. A telegram was then sent on 24.4.2008by the appellant to seek adjournment but he did not appear thereupon for personal hearing at any point of time. 16. Learned counsel for the appellant submits that the authority failed to ascertain who had sent the telegram without referring to the facts that his wife had, in fact, received the notice and the telegram was sent by him and, therefore, could not make a statement that no such telegram was ever sent by the appellant. In fact, the appellant had avoided service of notices, may be knowing about his involvement but the fact remains that the impugned order was not passed without sending the Show Cause Notice and its service. The service of notice on his wife has not been denied. We find argument in reference to it without any substance particularly when the appellant had sent a telegram to seek adjournment. It could not have been by any other person not related to matters so as to know the date of hearing and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... witness has to be recorded in the court and it can be a statement recorded under Section 108 of the Act. 20. The judgment in the case of K.T.M.S Mohd. (supra) is on a different issue. The issue was about the significance of the statement recorded under the Act of 1973 during the course of investigation. The statement aforesaid may be required for the judicial proceedings. However, we find a detailed judgment of Bombay High Court on the issue which permits reliance on the statement recorded under Section 108 of the Customs Act for the purpose of passing an order under the Act of 1973. The statements recorded under Section 108 of the Customs Act are considered to be under judicial proceedings thus admissible in law. The reference of the judgment of Bombay High Court in the case of Vinod Chitalia v. Union of India reported in 2012 SCC Online Bombay 476 is given where it was held that the statements made to DRI can be used in the present proceedings. Para 21 of the said judgment is quoted hereunder: 21. The statements made to DRI can be used in the present proceedings as they pertain to the same transaction. It must be borne in mind that under Section 108 of the Customs Act, 1962 the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or when a complaint is made relating to the commission of an offence before a Magistrate competent to try or send to another Magistrate for trial the offence, where a Customs Officer arrests a person and informs that person of the grounds of his arrest, (which he is bound to do under Art. 22(1) of the Constitution) for the purpose of holding an enquiry into the infringement of the provisions of the Sea Customs Act which he has reason to believe has taken place, there is no formal accusation of an offence. In the case of an offence by infringement of the Sea Customs Act and punishable at the trial before a Magistrate there is an accusation when a complaint is lodged by an officer competent in that behalf before the Magistrate . It was thus submitted that there is no illegality in considering the statements recorded under Section 108 of the Customs Act. 22. At this stage, we may refer to the allegation for placing reliance on the statement though retracted by the appellant. We do not find any document on record to show retraction of the statement thus mere pleading about the retraction of statement cannot be accepted. It is apart from the fact that even the retracted statement can b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the making of the confession as well as for its retraction, and must weigh the two to determine whether the retraction affects the voluntary nature of the confession or not. If the court is satisfied that it was retracted because of an after-thought or advice, the retraction may not weigh with the Court if the general facts proved in the case and the tenor of the confession as made and the circumstances of its making and withdrawal warrent its user. All the same, the courts do not act upon the retracted confession without finding assurance from some other sources as to the guilt of the accused. Therefore, it can be stated that a true confession made voluntarily may be acted upon with slight evidence to corroborate it, but a retracted confession requires the general assurance that the retraction was an after thought and that the earlier statement was true. This was laid down by this Court in an earlier case reported in SubaamaniaGounden v. The State of Madras . 24. In the light of the aforesaid, we are unable to accept the argument of the learned counsel for the appellant that retraction has been relied though no document has been produced to prove it and otherwise there was mater ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent that the proceedings were initiated after the sunset period of two years, rather issuance of Show Cause Notice itself shows initiation of the proceedings and that too within the sunset period. Accordingly, we are unable to accept the aforesaid argument also. 27. The learned counsel for the appellant lastly made a reference of the acquittal of the appellant in the prosecution under the Customs Act with an argument that once the appellant is acquitted in the prosecution, the penalty should not sustain. The argument aforesaid has been made in ignorance of the fact that the appellant was exonerated by the Metropolitan Sessions Judge, Hyderabad on the ground that the sanction for the offence under Section 135(1)(b)(ii) of the Customs Act was not taken and, therefore, the prosecution therein failed. It is, however, after recording the finding that the appellant and others attempted and abetted the smuggling of foreign currency of Rs.54,20,854/-. The appeal therein by the respondent was dismissed. However, we may refer to the relevant para of the order of the Metropolitan Sessions Judge for ready reference and is quoted hereunder: 4. The points which arise for determination in this ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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