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TMI Blog2000 (7) TMI 177X X X X Extracts X X X X X X X X Extracts X X X X ..... ce any document to show licit import of the gold. In a statement recorded from him the appellant informed that the Indian currency constituted commission from sale proceeds of smuggled gold disposed of by him from time to time. Appellant further admitted that he had visited Dubai in the month of January/February, 1992 and during that visit he was introduced by his uncle to one Gujarati Muslim gentleman by name Shri Haji, having Telephone No. 2245 and that the said Gujarati speaking Haji had made him an offer to receive and sell smuggled gold sent by Haji to India on commission; that with the object of earning more money, he (appellant) had agreed to the offer and had given his telephone number to Haji; that it was agreed that Haji would pay him Rs. 25 per piece of gold coin (guineas) and the sale proceeds were to be handed over to certain persons on instructions from Haji; that he was to get Rs.100 per one lakh rupees as commission on sale proceeds; that 2432 gold guineas seized from his residence was a part of 3000 gold guineas received at his residence through a person 10 days back; that one 100 gms. foreign marked gold biscuit was received from the same man; that he did not know ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court had directed the appellant to be kept in Jail custody and while in Jail he was admitted in the Jail Hospital and the medical report indicated that the appellant had suffered physical injuries. Even during the Jail custody the appellant had submitted an application before the Additional Chief Metropolitan Magistrate (ACMM) dated 22-8-1992 annexing all documents of bona fide importation of the gold coins from various NRIs. Ld. Counsel submits that the appellant had accounted for the entire lot of gold coins and the gold biscuit by way of baggage receipts. The persons whose baggage receipts had been produced by the appellant were examined by the concerned Customs Officers and all of them had given statements confirming that they had brought with them various quantities of gold coins and had paid customs duty on the same. The said persons (NRIs) who had affirmed the position in their affidavits and had in detailed statements explained that the gold coins were brought by them while returning to India from France and they had entrusted the gold coins to the appellant for sale in Delhi. The appellant had issued receipts for the same though he had not paid the amount at that time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 994 given detailed reply to all the allegations in the SCN along with details of the legal import of the gold coins. Further, at the time of adjudication proceedings before the Collector of Customs (Judicial), the appellant had given written submissions fully explaining the circumstances of the import and pointing out the discrepancies in the Department's case. Appellant had also relied on various judgments of the Supreme Court, High Courts and the Tribunal on the legal questions involved. Ld. Counsel contends that the impugned order has been passed on the basis of certain alleged discrepancies in the baggage receipts produced by the appellant. He referred to paragraph 47 of the impugned order in which the Commissioner has examined the baggage receipts produced by the appellant. As regards marking in the gold coins relating to "Emperror EDWARD - VIII" in the baggage receipts, Ld. Counsel has argued that there was an apparent mistake in baggage receipt Nos. 23851 and 23852 mentioning "Emperror EDWARD - VIII". According to verifiable information relied on by the appellant by way of 'Catalogue of Gold Coins, 1994', 'Legend of Abbrevations', "Coronation Book of King George VI to Queen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore the Court. Even at the time of preparing the Panchnama the appellant had made no mention of the existence of any baggage receipts or account books evidencing payment of duty. The claim of the appellant that his initial statement dated 6-8-1992 was obtained under coercion, etc. was therefore not correct and the production of the so-called receipts later on was an after-thought under legal advise obtained later. Further, the appellant had also not complained of any physical torture at the time of production before the Court. Only after more than a week the appellant was able to produce the medical examination report. Even the baggage receipts produced along with the letter dated 22-8-1992 were clearly manipulated and fabricated documents and examination of the cash book, stock register etc. produced on 17-11-1992 would show that these documents were prepared much later to cover up the illegal acquisition of the gold in dispute. Further, it was also implausible that the NRIs who are supposed to have brought the gold would have entrusted such huge quantities to a stranger like the appellant even without asking for money. Ld. SDR drew attention to the fact that none of the NRIs had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... directing that notice be given to the Superintendent, Central Jail to send the medical report of accused Shri Atul Kumar Kataria of 7-8-1992 on 2-9-1992. Ld. Counsel had then referred to the reply sent by the Jail Superintendent to the ACMM reproducing the contents of the Register relating to medical examination at the time of entry in the jail and the contents of the register (No. 5345 dated 17-8-1992) which indicated the following injuries: " (i) Bruises both buttocks (ii) Bruises (RP) (iii) Deltoid region with (LF) FA (iv) Swelling (RP) foot, (v) Bruise and (vi) Sole and calf". These documents have not been controverted by the Department before us though the Collector in the impugned order has observed that the charge of coercion, etc. is not supported by evidence. 9.We find that the evidence placed on record amply supports the claim of the appellant that the statement dated 6-8-1992 was obtained from him under coercion. We are therefore unable to agree with the observation made in para 45 of the impugned order that there was a time gap between the production of the appellant in the Court and the filing of the report by the jail authorities in the Court. The Commissioner had f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al amounts of gold on instructions from Shri Haji of Dubai. In fact the appellant's case stands on a better footing in the sense that the names, addresses, passport numbers etc. of the NRIs are verifiable and available whereas in the case of Shri Haji of Dubai, or the persons handing over gold to the appellant no such verifiable material is available on record. 11.As regards the seized Indian currency, we observe that the appellant has explained that the said currency was the sale proceeds of part of the gold coins entrusted to him by the NRIs. No material to rebut the said claim other than the initial statement of the appellant has been brought on record. As regards the Apex Court judgement in Indru Ramchand Bharvani v. UOI relied on by the ld. SDR, we find that the said decision primarily dealt with the aspect of existence of adequate material to form reasonable belief for seizure of contraband under Rule 110 read with Section 123 of the Customs Act. In that case, no question of retraction of an earlier statement and the evidence of obtaining the statement under coercion had been raised or considered. The ratio of the said judgment would not therefore be applicable to the facts ..... X X X X Extracts X X X X X X X X Extracts X X X X
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