ASHOK KUMAR Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) This appeal has been directed by the appellant against the impugned order -in -original vide which the Commissioner of Customs had imposed penalty of Rs. 5 lakhs on him.

(2.) On 27 -11 -1998 at about 2.00 PM, the appellant was intercepted outside the premises of Embassy of DPR Korea in the area of Greater Kailash -I, New Delhi. He arrived there in a sky blue Maruti car and after parking the same, went inside the Embassy premises. After some time, he came out holding one packet wrapped in newspaper in his hand, and at that time he was stopped by the DRI Officers, who were present there on a secret information against him. He was taken to the DRI Office at I.P. Estate and there, on conducting search of his car, the packet wrapped in a newspaper was recovered and then opened and it was found to contain 40 gold bars of 10 tola each. Thereafter, he was taken to the 7th floor of the Drum Shape Building, I.P. Estate, where Office of DRI is located and the Panchnama was prepared in the presence of two independent witnesses, namely, S/Shri Shishu Pal Singh and Manwar Singh Rawat. On conducting of personal search of the appellant, recovery of one driving licence and some US and French Franc were recovered. All the items were seized after preparation of the Panchnama. The statement of the appellant was also recorded wherein he admitted the recovery and failed to offer any explanation about the illegal possession and import of the gold bars and the foreign currency. On completion of investigation, show cause notice was served on him proposing the confiscation of the seized gold bars and the foreign currency, and also imposition of penalty on him. After getting his reply wherein he had denied the recovery of the gold bars and foreign currency, the adjudicating authority passed the impugned order vide which he ordered the absolute confiscation of the gold bars, and foreign currency, and further ordered the confiscation of the car with an option to get the same redeemed on payment of redemption fine of Rs. 30,000/ - and further imposed personal penalty of Rs. 5 lakh on the appellant.

(3.) The learned Counsel has contended that there is no reliable evidence on the record to prove the very recovery of the gold bars and foreign currency from the possession of the appellant and that the impugned order has been passed only on inadmissible, inadequate and inconclusive evidence. The alleged confessional statement, according to the learned Counsel, was procured from the appellant after giving beating and the same was even retracted by him on the very next date before the Court where he was produced by the DRI Officers and as such the same could not be used against him. The impugned order, according to the learned Counsel, deserves to be set aside.