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TMI Blog1996 (2) TMI 155X X X X Extracts X X X X X X X X Extracts X X X X ..... which I purchased from different broker and sell to different person on premium. Actually at present with the showroom in the present competitive market it becomes difficult to maintain the family. As an old man in the family and also, to keep up the image of the shop these type of un-official deals, I do not link with the shop. In fact my all the sons are against it. To day at about 8 A.M. in the morning one Nepali known broker came near Gariahat and handed over two gold bars with some inscription alone with a gold stick and told me the total weight as 257 gms. approximately. I know [M.C. Dey] this Nepali by face only. He is fair complexion, height about 5'-5" then built having a gold chain in neck, [aged] about 25 years, I do not know [his] name. I did not pay him any money. After selling the same as per arrangement he would come to me and leaving my profit I will have to pay him. On receipt of these gold I kept the same with me only. It was about 11 A.M. I was going inside the melting shop of Shri Prakash Yadav at 11/A, Fern Road for adding some alloy to fetch extra profit as well as to find out the actual purity, as the purity of the gold bars was not told by that Nepali pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l, 1985 the Respondent No. 1 filed an affidavit before the Magistrate at Alipore seeking to retract the confession. It was alleged in the affidavit that the statement was the outcome of coercion, threat and mental torture. 5.On 11th October, 1985 the Assistant Collector of Customs (Preventive) issued a show cause notice to Prakash Yadav, the Respondent No. 1 herein and Vijoy Kumar Shreshta. The show cause notice detailed the fact relating to the enquiry against all three. Having set out the facts the show cause notice noted that importation of gold was prohibited under Section 13(1) of the Foreign Exchange Regulation Act, 1973 read with Section 67 of the Act. Reference was also made to Section 123 of the Customs Act, which casts the burden of proof on the person in whose possession gold is seized in the reasonable belief that it is smuggled to prove that it was not smuggled. It was further stated that no documents had been submitted by any of the parties relating to the importation, acquisition or possession of the gold and that there was prima facie reason therefore to believe that the same was smuggled and liable to confiscation under Section 111(d) of the Customs Act. The furth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order a penalty of Rs. 1,000/- was imposed on the Respondent No. 1 under Section 74 of the Gold (Control) Act. 12.Being aggrieved with both these orders two appeals were preferred by the Respondent No. 1 before the Customs, Excise and Gold (Control) Appellate Tribunal (CEGAT). Before the CEGAT the submission again was that the Respondent No. 1's confessional statement had been taken under threat and duress and after prolonged detention, and as such, the same was inadmissible. The CEGAT formulated the following five points for decision : Whether the confessional statement of the appellant is"(i) obtained under threat or coercion or whether it is voluntary and is admissible against him. Whether the seizure panchanama cannot be acted upon as(ii) being contrary to the provisions [of] Section 103 Cr. P.C. and is thus vitiated and whether the same is to be disbelieved. Whether the statement of the co-accused Prakash Yadav can(iii) be taken into consideration a corroborating piece of evidence against the appellant. Whether the imposition of penalty against the appellant(iv) under the Customs Act, 1962 and the Gold (Control) Act, 1968 are in accordance with law. What order."(v) 13. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... over or that of a co-accused in the strict sense of the term. In any event, it was fond that the statement of Prakash Yadav implicating the Respondent No. 1 was corroborated by the voluntary statement of the Respondent No. 1 and also the seizure list. 16.As the argument before us on behalf of the Respondent No. 1 was primarily based on the language used by the CEGAT in dealing with Point No. 4, the language is quoted verbatim :- "As far as Point No. 4 is concerned it is clear from the voluntary statement of appellant dated 20-4-1985 that the contraband gold in question is found in his possession at 11 A.M. on 20-4-1985 while he entered the shop of Prakash Yadav. This is further corroborated by the seizure list which is witnessed and signed by the search witnesses as well as by the appellant himself. It is further corroborated by the statement of Prakash Yadav and therefore this fact is conclusively proved. Importation of gold except with general or special permission of Reserve Bank of India is prohibited under Section 13(1) of FERA, 1973 read with Section 67 of the Act. This gold was seized by the Officers of Customs under Section 123 of the Customs Act on a reasonable belief th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onfessional statements. The Learned Judge was of the view that the order of the Collector was even less satisfactory than the order of the CEGAT. He came to the conclusion that both these orders were vitiated and the writ application was allowed. 19.The Learned Single Judge appears to have gone into the question as to the weight of the evidence before the departmental authorities and has approached the matter as if the impugned decisions of the departmental authorities were the subject matter of an appeal. It is well settled that under Article 226 judicial review is directed not against the decision but it is confined to the examination of the decision making processes (See : State of U.P. v. Dharmender Prasad Singh : AIR 1989 SC 997). The Learned Judge has not held that there was no evidence before the CEGAT or that the CEGAT's decision was one which was so manifestly unreasonable or that no reasonable authority entrusted with the power in question could reasonably have made such a decision. The decision-making process made by the Tribunal was correct. It was not open to the Court under Article 226 to re-decide the question on the basis of the evidence adduced and substitute its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of Maharashtra : AIR 1971 SC 44; also Ramesh Chandra Mehta v. State of West Bengal : AIR 1970 SC 940). 24.It is also well established that a customs officer is not a police officer nor can a summons issued for interrogation be termed as an arrest. The Learned Judge said: "Now, the fact of taking somebody with the officers is a fact which, without anything more, shows a deprivation of liberty. That is nothing but arrest. It was not noted anywhere by the Tribunal that the appellant accompanies the Customs Officers voluntarily of his own accord to the Customs House. It is also a matter of admitted fact that the writ petitioner signed the confessional statement while being in the Customs House. Nobody stays in the Customs House of his own accord, if he has a pace-maker inside his chest and is permitted to go home and is told that he can go home without signing the confessional statement, if he so chooses. There is no material on record to show that the writ petitioner was told by any of the Officers that the writ petitioner was free to go home, if he so chooses. If the onus of proving the confessional statement to be voluntary is upon the Customs Authorities, then it was part of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndeed no argument was advanced by Counsel for the Respondent No. 1 in support of the order except to say that he had nothing further to add to what had been recorded in the judgment under appeal. 29.But a new and the only point argued before us on behalf of the respondents in support of the decision of the Trial Court was one which was not argued either before the Collector, the Tribunal or the Learned Single Judge. The point as canvassed is that under Section 112(b) of the Customs Act, 1962 it was incumbent on the department to establish and for the adjudicating authority to come to a conclusion that the Respondent No. 1 knew or had reason to believe that the gold was confiscatable. There was, in this case, no finding by either the Collector or the Tribunal of such knowledge and according to the Respondent No. 1 the decisions could not be sustained for that reason. 30.We are of the view that this argument of the Respondent No. 1 could not be raised for the first time in appeal. The question is a mixed one of fact and law. An adequate basis for the same should have been laid in the writ petition itself. The ground sought to be relied upon by the Respondent No. 1 in this connectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pute that the goods were confiscatable under Section 111(d). It is also not in dispute that the seizure of the goods was in no way vitiated. Section 123 of the Act casts the burden of proof on the person from whose possession goods are seized to show that they are not smuggled. By virtue of Section 123(2) this section has been expressly made applicable to gold and manufacturers thereof. Indeed it has been noted even by the Learned Single Judge that the writ petitioner was not seeking to challenge the confiscation of the goods. 35.The next question is whether the writ petitioner knew or had reason to believe the goods were contraband and whether the authorities had come to any finding in this regard. The Respondent No. 1 has relied upon 4 decisions in this context, namely, Charandas v. Collector of Customs : AIR 1968 Cal. 28; Khandelwal Metal & Engg. v. Union of India : 1983 (12) E.L.T. 295/302; Gian Chand v. State of Punjab : 1993 (13) E.L.T. 1365 (S.C.) = AIR 1962 SC 496 and Hindusthan Steel Ltd. v. State of Orissa : 1978 (2) E.L.T. (J159) = AIR 1970 SC 253. 36.In this case the confessional statement itself amounted to an admission of the offence. 37.The question of knowledge w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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