HARINDER PAL SINGH SHERGILL Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) The appellant Captain Harinder Pal Singh Shergill was intercepted by Customs Officers in the departure hall at Module II, NIPT, Sahara Airport, Mumbai on 3 -8 -98. At the time of interception, the Captain was proceeding to take up the command of Air India's Flight A1 670, Mumbai -Trivandrum -Doha -Bahrain. His baggage had been booked and he had been cleared through Customs. The interception was pursuant to information. The personal search of the Captain led to the recovery of US 61,000. This consisted entirely of currency notes of US 100 denomination. The currency was kept in a paper packet (wrapped with brown coloured adhesive tape) inside a black belt which had been tied to the waist of the Captain, beneath his trousers. In addition to 61,000 US so - recovered, the Customs Officers also recovered 5,217 US from the Wallet of the Captain. The Customs Officers seized the currency, belt, etc., on the ground that the currency was being illegally and clandestinely exported out of India in violation of the provisions of Customs Act, 1962 and Foreign Exchange Regulation Act, 1973. In his statement dated 3 -8 -98 the Captain stated that he was carrying the currency on behalf of his friend Kemp Kuttie who was having a business in Bahrain and that the currency had been handed over to him by one Mr. Yakub Mohammed. The captain was arrested. After further investigation, a show cause notice dated 22/27 -1 -99 was issued, proposing inter alia to confiscate the seized currency, Captain's white coloured Fiat Car bearing Registration No. BLN 4518 and to impose penalty on him. The proceedings initiated by the notice led to the passing of Order -in -Original dated 23 -3 -2001 by the Commissioner (Customs), Chatrapati Shivaji International Airport, Bombay whereunder the foreign currency, the black belt, the Car No. BLN 4518. The black belt wallet etc. were confiscated and a penalty of Rs. 10 lakhs imposed on the Captain. The present appeal is directed against this order.

(2.) The contention of the appellant is that the currency in question was partly appellant's earnings as allowance from Air India for the various flying assignments he carried out during the years 1 -4 -94 to 31 -3 -99 and the amounts kept with him by friends and relatives. In support of this contention, statements showing various payments received by the appellant from Air India for the above years, affidavits from different persons confirming giving of foreign currency for safe keeping with the captain etc. have been filed.

(3.) It is also contended that the recovery of the currency was not from the appellants person as found in the order but was from his car which he had parked at the Airport Terminal. The submission is that the Captain brought the currency with him to the Airport and proposed to deposit it in a locker in the bank at the Airport, if his flying assignment materialized (his assignments for commanding Flight to Bahrain on 3 -8 -98 being provisional) and that Customs Officers detained him in the airport and recovered the currency from the car but, falsely, showed as recovered from his person. On the basis of this contention it has been submitted that there was no intention to take the currency out of the country. Another contention raised is that, in any event, no attempt at illegal export of currency had been made inasmuch as the Flight from Bombay to Trivandrum was a domestic sector flight and the question of attempt to take the currency out of the country could arise only at the time of departure from Trivandrum. Learned Counsel for the appellant submitted that, if at all, a charge of preparation to take the currency out of the country alone could arise in the facts of the case. The learned Counsel has further submitted during the hearing of the case that the cross -examination of panch witnesses S/Shri S.S. Batave, V.V. Kamlapuskar and S.K. Patil showed that the currency in question was not recovered from the person of Shri Shergill. The learned Counsel also pointed out that Captain Shergill had retracted his confessional statement dated 3 -8 -98 on the very next day. During the hearing of the case, grievance has also been made about the confiscation of the car and denial of option to redeem the currency on payment of fine.