KOLLATRA ABBAS HAJI Vs. GOVERNMENT OF INDIA

JUDGEMENT

(1.) THE petitioner challenges Exts. P6 dated 4 -2 -1976, P9 dated February, 1980 and P10 dated September, 1980. By Ext. P6 a penalty in the sum of Rs. One lakh was imposed upon the petitioner by the Additional Collector of Customs under Section 112(h)(i) of the Customs Act, 1962. This order was confirmed in appeal by the 2nd respondent the Central Board of Excise and Customs, New Delhi by Ex. P9 and by the 1st respondent -The Government of India by Ex. P10,

(2.) ON 10 -2 -1974 fifteen gunny bundles of foreign fabrics were recovered from the premises of B.M. Abdul Khader and C.M. Abdalla, Twelve of them were recovered from the premises of the former and three from that of the latter. Neither Abdul Khader nor Abdulla was present at the time of the recovery. During the course of investigation, officers of the Customs took statements of six persons. They are M.M, Abdulla Kunhi, (recorded on 19 -2 -1974), M -M. Tajuddin (recorded on 19 -2 -1974). Mamnied (recorded on 25 -6 -1974), Thoruvath Kasmi (recorded on 11 -2 -1974), Abdul Khader (recorded on 2 -7 -1974). Each of them suited that the smuggled goods contained in the fifteen bundles were landed ashore from vessels and stored by them at the instance and on. behalf of the petitioner. Fxt - P4 and P5 are two letters recovered from the house of Abdulla Kuahi on 12 -2 -1974 as per Ext. R1 (c) mahazar. In these letters there is no direct reference to the petitioner. But they contain certain code words which the officers have not been able to decipher, but which they suspect to contain reference to the clandestine activities involving the petitioner arid the six pen sons from whom statements were obtained. A statement (Ext. P1) was taken from the petitioner himself on 19 -3 -1974. This statement which was recorded in the course of investigation by the officers shows that the statement made by Theruvath Kasmi on 11 -2 -1974 implicating the petitioner had been specifically put to the petitioner. The only explanation which the petitioner had to offer when he was confronted with that statement was that he had nothing particular to say (..). Significantly the petitioner did not deny the allegations. On the same day, that is, on 19 -3 -1974 the petitioner made a statement (Ext. P2) before the District Magistrate (Judicial), Kozhikode. He stated :

(3.) IN Ext. P6 the 3rd respondent relies upon the statements made by the co -accused to come to a conclusion against the petitioner. The petitioner's counsel Sri K. Kunhirama Menon submits that the testimony of the co -accused is not substantive evidence. That evidence could not have been relied upon by the officers except for the purpose of assuring themselves as to the reliability of any substantive evidence that was available against the petitioner. He refers to the principle stated by the Supreme Court in Haricharan Kurmi v. State of Bihar, A.I.R, 1964 SC. J 184 as regards the value of retracted confession of a co -accused. Counsel submits that, although the strict requirement of criminal proceedings are not applicable to proceedings before an Administrator in the exercise of his judicial or quasi -judicial functions, nevertheless it is a salutary principle that he should have, before finding a person guilty of the charges, evidence other than that of the retracted confession of co -accused.