Judgment :- This Writ Petition coming on for hearing upon perusing the petition and the affidavit filed in support thereof the order of the High Court dated 12-11-1969 and made herein relating to the order in O. S. 375/67 RD dated 14-8-1969 on the file of the Respondent herein comprised in the return of the Respondent herein to the writ made by the High Court, and upon hearing the arguments of Mr. E. S. Govindan, Advocate for the petitioners and of Mr. S. Ramasubramaniam for the Central Government Standing Counsel on behalf of the Respondent the Court made the following order :- This petition is filed under Article 226 of the Constitution for the issue of a Writ of certiorari for quashing the order of the respondent, the Collector of Customs, Madras, dated 14-9-1969, under which a penalty of Rs. 5, 000 was imposed on the petitioner under Section 112 of the Customs Act, 1962 hereafter referred to as the Act. 2.On 17-10-1967, two passengers, Kumar Pathar and Mohamed Mustafa, were interrogated with regard to certain packages which they had brought from Penang by s. s. State of Madras. Kumar Pathar stated that he carried the goods on behalf of Mohamed Mustafa. Mohamed Mustafa stated that the goods which were cleared on 15-10-1967 were handed over to the petitioner on the instructions of one Mariam Beevi, said to be the mother-in-law of the petitioner. Thereupon, the customs officers searched the premises of the petitioner on 17-10-1967. At the time, the petitioner was absent, but his wife was present. The petitioner's wife produced jewellery weighing 525 Gms. approximately and other articles, which were said to have been delivered the previous day by Mustafa. At the time of the search officers recovered from the cupboard a list said to have been given by Mariam Beevi at Penang to Mustafa to be handed over to the petitioner. The goods were found to be liable to duty, but had been cleared without payment of duty. The petitioner appeared before the Customs Officer on 31-10-1967 and stated that Mustafa requested him to keep the articles for safe custody and that he had nothing else to do with the ownership of the goods and further stated that the goods were not sent to him by his mother-in-law. He also controverted the statement of Mustafa that he, the petitioner, had given Rs. He also controverted the statement of Mustafa that he, the petitioner, had given Rs. 3, 500 for payment of duty. He, however, identified the list seized from his house as the one left in his residence by Mustafa along with the articles. 3.Thereupon, the Department issued show cause notices to the petitioner, Mustafa and Pathar. Pathar and Mustafa gave statements stating that the previous statements recorded from them were taken under duress and coercion. But subsequently they changed their version and reiterated what they had stated earlier. The petitioner, however stuck to his original statement denying that the goods were sent to him by his mother-in-law. The respondent thereupon was the person behind the scene and was responsible for the illicit import of the goods. He came to this conclusion only upon the statements given by Mustafa who stated that the goods were brought only for the petitioner. He also relied upon the statement of Mustafa that it was the petitioner who had arranged to pay duty on the jewellery. Having come to these conclusions he directed the confiscation of the goods and imposed a penalty of Rs. 5, 000. 4.The question is whether this order is vitiated. The petitioner relies upon the decision of the Supreme Court in Radha Krishnan v. Union of India which is a case arising under the Sea Customs Act, 1868. The relevant provision of that Act that was considered in that case was section 167(8), which did not impose any penalty upon a person found merely in possession of goods and without anything more. It was therefore observed by the Supreme Court that a mere finding of fact that a person is in possession of smuggled goods does neither imply that the Collector of Customs had considered the question of the person(s) being concerned in the commission of the offence of illegal importation of the goods nor in any why justifies the conclusion that the person must have been so concerned. This principle is hardly applicable to the facts of the instant case which is governed by Section 112 of the Customs Act, 1962. This principle is hardly applicable to the facts of the instant case which is governed by Section 112 of the Customs Act, 1962. This section provides : "Any person, - (a) who, in relation to any goods, does or omits to do any act which act or omission would render such goods liable to confiscation under Section 111, or abets the doing or omission of such an act, or (b) who acquires possession of or is in any way concerned in carrying removing, depositing, harbouring, keeping, concealing, selling or purchasing, or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under section 111, shall be liable; (i) in the case of goods in respect of which any prohibition is in force under this Act or any other law for the time being in force, to a penalty not exceeding five times the value of the goods or one thousand rupees, whichever is the greater; (ii) in the case of dutiable goods, other than prohibited goods, to a penalty not exceeding five times the duty sought to be evaded on such goods or one thousand rupees, whichever is greater." * 5.The question is whether the conclusion of the respondent that the petitioner was concerned in the illicit import of the goods is warranted by the materials available before him. The only materials were the statements of Mustafa and Pathar. These persons had no consistency. In the first instance, Mustafa stated that he had carried the goods to be delivered to the petitioner at the request of the petitioner's mother-in-law. Pathar did not state anything implicating the petitioner in the first instance. Subsequently Mustafa gave ago by to what he had stated earlier and stated that the first statement was got from him by coercion and duress. Subsequently he went back upon that subsequent statement and wanted to stand by his first statement. Pather also said that he gave the first statement under duress and coercion and subsequently went back upon that statement and wanted to stand by the first statement. Thus on their own showing these two persons are thoroughly unreliable. They were in the position of accomplices. They had reason to know that the goods were liable for confiscation. They admittedly carried the goods. On his own showing Mustafa deposited the goods with the petitioner. Thus on their own showing these two persons are thoroughly unreliable. They were in the position of accomplices. They had reason to know that the goods were liable for confiscation. They admittedly carried the goods. On his own showing Mustafa deposited the goods with the petitioner. Thus both the acts of carrying and depositing were done by Mustafa and these acts fall clearly within the scope of clause (b) of Section 112 making them liable for the consequences enumerated therein. Likewise, Pathar, who was responsible for the carrying of the goods, on his own showing, was equally liable for the same consequences. They were thus in the position of accomplices and the respondent erred in relying upon those statements which were recorded behind the back of the petitioner, who had no opportunity to cross-examine them.6.All that has been established in the case was possession of the goods by the petitioner. If the petitioner had been found guilty of possessing the goods, knowing or having reason to believe them to be liable for confiscation, the position would be different. But, without any material whatsoever, the respondent found the petitioner as being concerned in the illicit import of the goods. This order is vitiated and is unsustainable. In the result, the petition is allowed and the impugned order is quashed.