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TMI Blog2003 (12) TMI 248X X X X Extracts X X X X X X X X Extracts X X X X ..... ed for effecting the illegal act, who all actively assisted and abetted the attempted etc. From the Order-in-Original or from the case records, a clear picture of the case is not emerging. The person occupied the seat No. in question (Seat No. C-21) as shown in the baggage tag) was not interrogated. In Para 50(d) of the Order-in-Original, it is stated that Shri Saidalvai (who was imposed with a penalty of Rs. 1,00,000/-) was not apprehended and absconding. Similarly, the appellant was also not taken into custody or interrogated. In these circumstances, the argument of the appellant is fully maintainable before law. (ii) It is seen that a vital document viz., the computer print out showing the telephone numbers called by Sitaram Naik from a private hospital where he was admitted was vehemently contested by the appellant. The appellant averred that the document is a concocted one not verified the entries with Telecom Department, especially the calls being trunk calls. The original authority observed that the department's case on Shri Ali Mohammed is mainly based on the statement of S/Shri J. Sitaram Naik and P. Abdul Majeed and the Telephone calls that made by Sitaram Naik t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al authority. Hence, I may be seen that little relevance is placed on the said document and non-supply of the same, ipso facto, does not vitiate the adjudication proceedings. And thereafter he concluded that the impugned Order-in-Original was running into 29 pages with unnecessary transcriptions of the notice and replies thereof, which did not appear to serve any meaningful purpose, since contradictions on the point of which the original authority drives at are bound to creep in such lengthy orders. He observed that allegations lacks and averments built upon feeble grounds levelled by the investigating officers would make them lethargic and the officers refrain from making foolpoof investigation reports. Therefore a penalty of Rs. 5 lakhs under Section 114 of the Customs Act, 1962 imposed on the respondents herein was ordered to be set aside. 2.Revenue has taken the grounds :- (i) The Commissioner's findings of missing links in this case are not called for. In view of the statements of one Shri J. Sitaram Naik, Senior loader of Indian Airlines which brings out the entire background that led to detection and eventual seizure of the brief case containing foreign currenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id not appreciate. (v) As regards the questioning of the computer print out of the telephone calls made by Shri Sitaram Naik, from the statement of Shri Sitaram Naik it could be clear that he had admitted having made calls to Shri Ali Mohammed (respondents herein on Valluvambram No. 2094) on 7-8-95 and 10-8-95 from Baby Memorial Hospital where Naik was hospitalized during that period, which is corroborated from the telephone calls print out maintained by the hospitals and statements from the hospital employees. Merely because the respondents had come up with an alibi that he had not in India during that period and whether he was available in the phone was only a second question, the familiarity of Naik was established. (vi) The Advocate of the respondents had submitted that Ali Mohammed was out of India from 27-7-95 to 14-8-95. On verification of the investigation filed it would be seen that embarkation card dated 27-7-95 shows the name of the passenger as Ali Mohammed and the Serial number allotted to the passenger manifest is 204. The name that figures against Sl. No. 204 in this passenger manifest is actually Mohammed A.K. The name of Ali Mohammed does not figur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t do exhibits that there was a reason to believe that the Customs officers and Ali Mohammed and his wife are not at best of terms for reasons known to them. In this view it is imperative that material brought on record to implicate Ali Mohammed should be unquestionable and should be making out a water tight case. (b) Ali Mohammed has been penalized, based only on the statements of co-accused one J. Sitaram Naik, Senior loader at Calicut Airport who vide his statement on record is admittedly a drunkard and was in deep debts. The statement of Shri J. Sitaram Naik is therefore carefully perused and a perusal reveals the followings :- (i) "He took me to the main road and there was a light green ambassador car waiting there, I saw. The time was at about 7.30 PM. We went near the car and saw a man aged about 40 years, Dark complexion, he aiming at us. Saidalvai introduced us each others. He was Ali Mohammed sitting at back seat of the car. Driver was sitting at the front seat..... (ii) .......Accordingly we met the second day Ali Mohammed told me that whether I could do something for him. I wanted him to make it clear. He told me that he was intending to open, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pain I was admitted in Baby Memorial Hospital on 20-7-95 far about 5 days and on 4-8-95 for 7 days. During this period occasionally I used to contact Ali Mohammed over phone....... (vi) .......Therefore, I contacted Ali Mohammed on 7-8-95 and 10-8-95 for financial assistance and assuring him that I would be helping him for his operation of sending the foreign currency illegal....... (vii) .......That day evening itself I went to Kondotty and handed over the same to Sherief in the presence of Saidalvai......... (viii) .......That day evening I went to Kondotty and received the amount of Rs. 15,000/- from Saidalvai in the presence of Sherief and Ali Mohammed........ (ix) .......After one week as requested by Saidalvai I went to Kondotty and meet him near the Bombay Restaurant and he asked me to arrange for sending another consignment as already done......... (x) .......We went near the Cool Bar where I saw Ali Mohammed, Sherief and the man with bearded sitting in a car which was parked near the Cool Bar. Ali Mohammed asked me what happened.......... (xi) .......Ali Mohammed patted on my bag and told me not to worry and assured me that he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bi of Ali Mohammed not in India during the relevant period were got made. Both the lower authorities declining with this matter appear to be convinced that Ali Mohammed's presence and availability on the dates as alleged on telephone number at Valluvambrom could not be established. The alibi is so strong that Ali Mohammed involvement and pre-contact knowledge with smuggling conspiracy cannot be established. (iii) As regards the successful attempts of sending out a bag, on the retracted statements of Sitaram Naik that he was paid Rs. 15,000/- for that successful attempt by Saidalvai on 28-8-95 evening at Kondotty, an apparent conflict arises. If Ali Mohammed and Naik were to deal directly, then why Saidalvi should be brought into the picture for payments is not explained by Naik nor is he questioned by the officers on that. (iv) As regards implications at Sl. No. (ix), it is apparent that the proposal to smuggle out the foreign currency came from Saidalvai and from implications (x) and (xi) it would appear that these implications have been got at, if Sitaram Naik was in direct touch control of the respondent herein i.e. Ali Mohammed, then he would have definitely cal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecorded and the department wants it to be relied upon as a crucial piece of corroborative evidence, then non-mention of the same in relied upon documents would be more than an innocent mistake or lapse. Care and diligence was required on the part of investigators. In any case if a statement or a documents has not been mentioned in the relied upon list, by the original authority, the Revenue appeal now made based on that document cannot be upheld. Consequences would be, that the material, as relied upon, is not corroborated. Without corroboration statements of a co-accused cannot be accepted, to bring in the severe consequences of a penalty amounting to Rs. 5 lakhs as found by the original authority on the respondents herein. 5.There have been admitted lapses and lacuna in the investigation. The finding of the Commissioner that an uncalled for order running into 29 pages of unnecessary transcriptions and replies thereof will not serve of any meaningful purpose is to be upheld. The alibi of Ali Mohammed and the contradictions in the uncorroborated statement of co-accused Sitaram Naik lead to only conclusion that there are no grounds to upset the findings as arrived at by the Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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