DALIP SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) The facts giving rise to this petition under Section 130(3) of the Customs Act, 1962 (for short "the Act") briefly stated are that on December 14, 1980 CIA Police Staff of Amritsar intercepted one Ramesh Kumar near the house of Dalip Singh, petitioner, and recovered from his pant pockets 2.075 Kg. of silver. The police party then searched the house of the petitioner and recovered 25 pieces of gold weighing 1.600 Kg. including one piece of gold biscuit of foreign origin weighing 10 tolas valued at Rs. 2,16,400.00, 21 pieces of silver weighing 18.990 Kg. approximately and 150 wrist watches of foreign make valued at Rs. 36,740.00 from the almirah of the drawing room of the petitioner. The seized goods were handed over to Customs by the police on December 20, 1980. The Customs Officers recorded the statements of the petitioner, his father Mangal Singh and his sister-in-law Smt, Jaswant Kaur under Section 108 of the Act. Smt. Jaswant Kaur stated that the seized gold, silver and the wrist watches were kept by the said Ramesh Kumar, a friend of the petitioner; Dalip Singh, in a gathri (package) in the evening of December 13, 1980 that at that time Dalip Singh was not present in the house and that she had allowed Ramesh Kumar to keep the package in the almirah of the drawing room of the house. She further stated that she did not enquire about the contents of the package nor did she have any knowledge about its contents and that she did not inform Dalip Singh about Ramesh Kumar having kept the gathri there. It was further stated by her that Ramesh Kumar along with the police came to her house on the next day i.e. on December 14, 1980 and took away the gathri from the almirah and handed over the same to the police. Dalip Singh petitioner and his father Mangal Singh also corroborated the statement of Smt, Jaswant Kaur. Dalip Singh stated that he did not know about the keeping of the gathri there and had no concern with the seizure of the gold, silver and the wrist watches. Ramesh Kumar in his statements dated December 31, 1980 and May 4, 1981 denied having kept the said goods at the said place on December 13, 1980 and further stated that he had no concern with the goods.

(2.) The Collector of Customs, Chandigarh, by his order dated July 2, 1983 confiscated absolutely the aforesaid gold and silver etc. under Section 111 and Section 113 respectively of the Act and imposed a penalty of Rs. 3 lacs on the petitioner under Section 112 of the Act. He also held that the said gold was liable to absolute confiscation under Section 71 of the Gold (Control) Act, 1968, but since the said gold had already been absolutely confiscated under Section 111 (d) of the Act it was not available for confiscation under the Gold (Control) Act and that in case it became available it would stand absolutely confiscated under Secton 112 of the Act (sic)(71 of the Gold (Control Act). The Collector also imposed a penalty of Rs. 1 lac on the petitioner under the Gold (Control) Act. The petitioners preferred two separate appeals against the said two orders, both dated July 2,1983 to the Customs, Excise & Gold (Control) Appellate Tribunal, New Delhi. It was urged before the Tribunal that the contraband goods were kept by Ramesh Kumar, they had also been seized on the pointing out of Ramesh Kumar that the petitioner had nothing to do with the goods and that his exclusive and conscious possession of the goods was not established. On these averments it was contended that the two orders of the Collector whereby he imposed the said two penalties on the petitioner and while he dropped the proceedings against Ramesh Kumar, Mangal Singh and Jaswant Kaur, were illegal. It was submitted that the petitioner ought to have been given the benefit of doubt as was given to his three accomplices. In the alternative it was submitted that the penalties imposed were highly excessive. The Tribunal on an appreciation of the material before it held that the adjudicating officer had correctly fixed the ownership of the goods on Dalip Singh (petitioner) and was justified in holding that the petitioner was the person concerned in acquiring, keeping, concealing or dealing with the goods. It was however held that the imposition of penalty of Rs. 3 lacs under Section 112 of the Act was excessive and he reduced the same to Rs. 2 lacs, however maintaining the penalty of Rs. 1 lac imposed under the Gold (Control) Act. The petitioner preferred two separate petitions, viz. under Section 130(1) of the Act and Section 82(B) of the Gold (Control) Act seeking reference of six questions each in the two petitions. The following questions were sought to be referred in the petition under Section 130(1) of the Act:

(3.) The following questions were sought to be referred under Section 82B of the Gold (Control) Act, 1968 :-