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2010 DIGILAW 94 (GAU)

Basudev Das v. Union of India

2010-02-09

HRISHIKESH ROY

body2010
JUDGMENT Hrishikesh Roy, J. 1. Heard Mr. M.K. Choudhury, learned senior counsel appearing for the petitioner. Also heard Mr. B. Sharma, Standing counsel for the Central Excise Department representing the respondents. 2. The penalty imposed on the petitioner under Section 112 of the Customs Act, 1962 for improper importation of goods is challenged in the present proceeding, the penalty order dated 14-5-2001 (Annexure-3) of the Commissioner of Customs is affirmed by the Customs Excise and Gold (Control) Appellate Tribunal (hereinafter referred to as CEGAT) by its order dated 25-2-2002 [2002 (143) E.L.T. 358 (T)]. 3. Before proceeding to adjudicate on the matter, a brief recording of the necessary facts may be in order. 3.1 On specific information received to the effect that gold of foreign origin were being carried by two passengers travelling in a Tata Sumo vehicle on 11-11-99, the vehicle was intercepted near Ghagra bridge on Silchar-Karimganj road. 3.2 The two persons sitting in the front seat were questioned by the Customs Officers and one of them Shymal Chakraborty after some hesitation, admitted that he was carrying some gold bars. Then summons were issued to the front seat passengers and the driver under Section 108 of the Customs Act to appear before the Customs office at Silchar. 3.3 In the office, all the three persons were searched during which 14 gold bars wrapped with adhesive tapes were recovered from the concealment within the black leather shoes worn by Shymal Chakraborty. The recovered gold bars were found to be of foreign origin and each gold bar weighed 116.65 gms (i.e. 10 Tolas) each. 4. In course of the investigation, Shymal Chakraborty made inculpatory statement on 11-11-99 stating that the seized gold bars were handed to him by the petitioner Basudev Das alias Bappa and that on previous three occasions, he had similarly carried foreign gold bars on instructions of his master Basudev Das (writ petitioner). Shymal Chakraborty stated that he used to receive nominal payments for such service rendered to the petitioner Basudev Das. 5. A similar statement was also made before the Custom Authorities on the same day i.e. on 11-11-99 by the writ petitioner where he admitted that the gold bars recovered from Shymal Chakraborty actually belonged to him and that Shri Chakraborty was carrying it on his person on his instruction for delivery to another person at Silchar. 6. 5. A similar statement was also made before the Custom Authorities on the same day i.e. on 11-11-99 by the writ petitioner where he admitted that the gold bars recovered from Shymal Chakraborty actually belonged to him and that Shri Chakraborty was carrying it on his person on his instruction for delivery to another person at Silchar. 6. In course of the investigation, the Customs authorities, inter alia, seized the Tata Sumo vehicle registered in the name of the petitioner's wife Smt. Sabita Das. They also seized a pair of shoe worn by Shymal Chakraborty where the gold was concealed. Incidentally the shoe worn by Shri Chakraborty was purchased by the petitioner and was usually kept in petitioner's custody. The bank accounts of the petitioner were also scrutinized and it was concluded that the petitioner is involved in smuggling gold bars from Bangladesh for delivery at Silchar. The Commissioner of Customs did not accept the petitioner's contention that he was only a co-passenger in the vehicle and had no connection with the gold bars carried by Shymal Chakaborty. Accordingly it was held that the petitioner and others were liable to penalty and accordingly after ordering confiscation of the seized gold, a penalty of Rs. 5 lakh was inflicted on the petitioner by the order recorded on 14-5-2001. 7. The petitioner filed an Appeal before the CEGAT against the order of the Commissioner and by interim order recorded on 4-10-01, the petitioner was directed to deposit an amount of Rs. 1.50 lakh and the Appeal was posted for final hearing. 8. By the impugned order 25-2-2002 in Appeal No. C-347/2001, the CEGAT did not find any justification to interfere with the order passed by the Customs Commissioner. However, the amount of penalty was reduced from Rs. 5 lakhs to Rs. 2 lakhs and barring this modification, the order of the Customs Commissioner was affirmed. 9. The writ petitioner through his counsel contends that no recovery of gold was made from him and his involvement with gold smuggling cannot be positively confirmed only on the basis of a statement of a co-accused. It is also contended that the statements from the petitioner was obtained through duress and coercion while he was kept confined at Shillong. Mr. The writ petitioner through his counsel contends that no recovery of gold was made from him and his involvement with gold smuggling cannot be positively confirmed only on the basis of a statement of a co-accused. It is also contended that the statements from the petitioner was obtained through duress and coercion while he was kept confined at Shillong. Mr. M.K. Choudhury, learned senior counsel points out that soon alter the petitioner obtained bail on 18-11-99, on 20-11-99, the petitioner had sworn the affidavit (Annexure-1) wherein he had recorded that he and Shymal Chakraborty were in the custody of Customs authorities at Shillong between 12-11-99 to 18-11-99 and since the statements of Shymal Chakraborty and the petitioner were recorded during this period, the same cannot be the basis for the penalty order. 10. Representing the respondents, it is argued by Mr. B. Sharma that the petitioner was afforded all opportunities to rebut the charges made against him and the allegation of forced confession has also been examined by the CEGAT. However after due consideration, the Tribunal found that penalty was rightly inflicted on the petitioner as he was involved with smuggling of contraband gold and under this circumstances, it is submitted that interference of the writ Court would be unjustified. 11. Section 106 of the Customs Act gives power to stop and search vehicles suspected to be used in smuggling. Section 108 empowers the Customs authorities to summon persons to give evidence and produce documents. Seizure of goods, documents etc. are permitted to be made under Section 110 and confiscation of goods is envisaged by Section 111. A person found to be involved in improper importation of goods can be inflicted with penalty of appropriate amount, under Section112 of the Customs Act, 1962. 12. In the instant case, the impugned penalty inflicted on the petitioner is based substantially on the statement of the co-accused and also the petitioner's own statement made before the Customs authorities. A person found to be involved in improper importation of goods can be inflicted with penalty of appropriate amount, under Section112 of the Customs Act, 1962. 12. In the instant case, the impugned penalty inflicted on the petitioner is based substantially on the statement of the co-accused and also the petitioner's own statement made before the Customs authorities. The Supreme Court in the ease of K.I. Pavunny v. Assistant Collector (HQ), Central Excise Collectorate, Cochin reported in (1997) 3 SCC 721 : 1997 (90) E.L.T. 241 (S.C.) on statement recorded by the Customs officer on suspecting a person of having committed a crime under the Customs Act recorded as follows : It would thus be clear that the object of the Act empowering Customs Officers to record the evidence under Section 108 is to collect information of the contravention of the provisions of the Act or concealment of the contraband or avoidance of the duty of excise so as to enable them to collect the evidence of the proof of contravention of the provisions of the Act so as to initiate proceedings for further action of confiscation of the contraband or imposition of the penalty under the Act etc. By virtue of authority of law the officer exercising the powers under the Act is an authority within the meaning the meaning of Section 24 of the Evidence Act. 1. Though the authority/officer on suspecting a person of having committed the crime under the Act can record his statement, such as a person perforce is not a person accused under the Act. 2. He becomes accused of the offence under the Act only when a complaint is laid by the competent Customs Officer in the Court of competent jurisdiction or Magistrate to take cognisance of the offence and summons are issued. Thereafter, he becomes a person accused of the offence. 3. A statement recorded or given by the person suspected of having committed an offence during the enquiry under Section 108 of the Act or during confiscation proceedings is not a person accused of the offence within the meaning of Section 24 of the Evidence Act. 4. Though the Custom Officer is an authority within the meaning of Section 24 of the Evidence Act. 4. Though the Custom Officer is an authority within the meaning of Section 24 of the Evidence Act. by reason of statutory compulsion of recording the statement or the accused giving voluntary statement pursuant to his appearing either after issuance of summons or after the appellant's surrender, such statement cannot be characterised to have been obtained by threat, inducement or promise. 5. The collection of evidence under Section 108 and other relevant provisions relating to search and seizure are only for the purpose of taking further steps for confiscation of contraband and imposition of penalty. 6. The selfsame evidence is admissible in evidence on the complaint laid by the Customs Officer for prosecution under Section 135 or other relevant statutes. Having regard to the law laid down by the Supreme Court in K.I. Pavunny (supra), I am of the considered opinion that imposition of penalty can be justified on the basis of statement recorded under Section 108 of the Customs Act. 13. But a penalty inflicted solely on the basis of statement of co-accused may have to be scrutinised to ensure that it is a truthful version of the events. In the instant case, the statement given by the petitioner as well as the co-accused on the very day of the seizure i.e. 11-11-99 at Silchar is relevant. The petitioner pleads that while the petitioner remained in custody at Shillong from 11-11-2009 (sic) to 18-11-1999 several inculpatory statements were obtained from him and the co-accused. 13.1 In my view such a plea can't have much bearing inasmuch as, several such statements on 12-11-99, 13-11-99 and 17-11-99, were recorded during the so called custodial period where the petitioner gave details of his previous activities in smuggling gold. But the statement given by the petitioner and by his co-accused Shymal Chakraborty on 11-11-99 i.e. the day of the seizure at Silchar and recovery of gold from the person of Shymal Chakraborty are very relevant. On 11-11-09 (sic) the petitioner was not in custody at Shillong. Therefore, the statement recorded on 11-11-09 (sic) can't be said to be under duress, while in custody. Furthermore, the facts stated in the said statement of 11-11-99 could not be known to the Customs Officers. On 11-11-09 (sic) the petitioner was not in custody at Shillong. Therefore, the statement recorded on 11-11-09 (sic) can't be said to be under duress, while in custody. Furthermore, the facts stated in the said statement of 11-11-99 could not be known to the Customs Officers. 13.2 Under these circumstances, I do not find any justification to take a view different from the one taken by the learned Tribunal which held that the statement given on 11-11-99, appear to be truthful and could not have been forced. 14. Apart from the inculpatory statement of the petitioner and the co-accused Shymal Chakraborty, the recovery of 14 gold bars from the person, kept under concealment in Shri Chakraborty's shoes and the fact that the said shoe was purchased by the petitioner and was given to Shymal Chakraborty only for the purpose of carrying out the smuggling mission, are also relevant factors, which persuades the Court to accept that the statement was truthful and can be the basis for imposition of the impugned penalty. 15. In the above circumstances. I am of the considered opinion that the penalty inflicted on the petitioner is not liable to be interfered by this Court. 16. However, I find from the materials on record that the petitioner was a petty Pan shop owner and had entered smuggling activities to augment his meagre income and was a recent entrant in the field. On this consideration. I feel that the penalty of Rs. 1.50 lakhs deposited by the petitioner would be sufficient penalty for the crime committed as the gold has already been subjected to seizure. Accordingly without interfering with the order of penalty, the amount is reduced to Rs. 1.5 lakhs from the Rs. 2 lakhs. 17. This petition stands disposed of in terms of the above order.