S. HIDAYATULLAH AND S. Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) THE Commissioner of Customs imposed penalties of Rs. 10 lakhs and Rs. 5 lakhs on Shri S. Hidayatullah and Shri S. Chandranmohan respectively under Section 112 (a) of the Customs Act, in one order. He imposed like penalties on these persons, in a second order also. Hence the four appeals and the connected stay applications before us. Ld. Counsel for the appellants submit that there is no foolproof evidence on record to justify the penalties. The Commissioner's order is based on statements of the appellants, which were retracted shortly. The retractions were not properly considered by the adjudicating authority. The appellants have been penalized for their alleged role in relation to two unaccompanied baggages, from which Foreign Marked Gold Biscuits were seized by the Customs authorities. Though, it appeared to the investigators that the gold biscuits were sent from Dubai by one Shri Mohammed Rowther, the Department could not locate him and implicate him. The investigation against him did not make any headway and hence the case against him was kept in abeyance. Ld. Counsel have pointed out that when it was found that Shri Mohammed Rowther had a key role in export of the gold biscuits from Dubai to India, the case framed against the appellants should not have been adjudicated upon. The argument is that, had the evidence of Shri Mohammed Rowther come on record, it would perhaps have changed the very complexion of the case against the appellants. It is also pointed out that the confessional statements recorded from the appellants were retracted within four days in reasonable circumstances, but this aspect, was not examined by the Commissioner. It is further pointed out that, though it appeared to the investigators from the statements recorded by them, that Shri Naina Mohammed had obtained passports from persons eligible for the benefit of ransfer of Residence Rules and supplied the same to the appellants, he was not penalised. On these facts and evidentiary materials on record, it is argued, the appellants have strong prima facie case against imposition of penalties. Ld. Counsel has also pleaded financial hardships for their clients.

(2.) LD . SDR submits that the penalties imposed on the appellants are fully justifiable on the strength of their confessional statements, which were not validly retracted. She relies on the Supreme Court's judgment in Surjeet Singh Chhabra v. Union of India . After referring to the facts and circumstances in which the Contraband was seized, ld. SDR submits that there is an apparent nexus between the goods and the appellants as confessed by themselves in their original statements given under Section 108 of the Customs Act.

(3.) AFTER giving careful consideration to the submissions, we find that the appellants had allegedly indulged in bringing "Foreign Marked Gold Biscuits" into India from abroad by making use of passports belonging to persons eligible for the benefit of Transfer of Residence Rules. One Shri Naina Mohammed was the person who admittedly made available such passports for a consideration. His statement is on record, which is inculpatory as far as the appellants are concerned. Yet the appellants have not chosen to cross -examine Shri Naina Mohammed. Their case is that they retracted their confessional statements within 4 days. Such retraction, as claimed by them, was done before the Judicial Magistrate, before whom they were produced by DRI officials. In their bail applications, the appellants stated, in one line, that the DRI officials had recorded confessional statements from them under threat/duress/intimidation. But this plea did not impress Id. Magistrate, who denied bail and sent the appellants to jail. It was from jail that they wrote detailed letters of retraction, to the DRI. This was on the fourth day of the date of original statements. A statement given to the Department by a person under Section 108 of the Customs Act can be validly retracted forthwith in circumstances which would show that he was unable to give a voluntary statement at the time when the original statement was given. Various reasons could be put forward to justify the circumstances. In the present case, the only complaint of the appellants is that they were intimidated, threatened etc. They have no case that the DRI intimidated them or threatened to beat them or to coerce them when they were before the Judicial Magistrate praying for bail. But, there too, they did not disclose any circumstance which could constitute intimidation, threat or coercion. Hence the retraction said to have been made of the original statements given by the appellants is prima facie not genuine. In the circumstances, the facts stated originally by the appellants under Section 108 of the Customs Act would appear to be reliable. In this context, the Hon'ble Supreme Court's judgment cited by ld. SDR becomes relevant. In the case considered by the apex court, the petitioner had claimed to have retracted a confessional statement within six days. Their Lordships rejected this claim and held that the confession, though retracted, was an admission which bound the petitioner. No rival decision has been shown to us. Hence, we are inclined to hold that the appellants have not made out prima facie case against the penalties imposed under Section 112 of the Customs Act, though they can perhaps agitate for lesser penalties in the facts and circumstances of the case.