MAGANLAL GULABCHAND SHAH Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner has challenged the order dated 31/01/1981 (Annexure 'G') passed by the Central Board of Excise and Customs in the custom appeal filed by the petitioner. In the said appeal the petitioner has challenged the order dated 30/09/1980 passed by the Collector, Customs and Central Excise, Ahmedabad, under Sec. 167(8) of the Sea Customs Act, 1878, whereby he has ordered to confiscate 30 gold bars with foreign markings weighing 300 tolas valued at Rs. 28000.00as described in the panchnama dated 8/02/1956.

(2.) Before dealing with the contentions of the petitioner, it would be necessary to narrate some facts pertaining to seizure of the gold from the petitioner and the subsequent proceedings. On 8th February, 1956 the pe petitioner alighted from a train at Navagadh Railway Station (Jetpur), District Rajkot. As P.S.I. Deda had received information that the petitioner was to bring gold, be waited at the railway station and after the petitioner alighted from the train, he got into the horse-carriage in which the petitioner sat along with his luggage. When they reached at the second Octroi Naka, the P. S. I. searched the baggage of the petitioner in the presence of panchas. It is alleged that before the P. S. I. started search the petitioner tried to escape leaving the luggage in the horse-carriage. However he was stopped by the Police Officer and the search of his person as well as baggage was taken in presence of two panchas named as Hemantsing Ramsing Garasia and Haridas Somaji Lohana. 30 gold bars were found bearing the markings "N. M. ROTHSCHILD and SONS (RMR) 10 tolas No. 999.0." It was valued at Rs. 28000.00. Ultimately the police handed over the case-papers and muddamal gold bars to the Superintendent of Central Excise and Customs, Junagadh. The Superintendent of Central Excise & Customs, Junagadh, recorded the petitioner's statement on 22/02/1956. In the said statement the petitioner admitted that he came from Bombay on 8/02/1956 and got down at Navagadh Station and the P. S. I. had taken search of his person and baggage. He also admitted the recovery of 30 bars of gold with the marks from his possession by the P. S. I., Jetpur in the presence of panchas with a clarification that he had not read the; marks, therefore he was not in a position to state exactly the Marks on the said bars. He, however, stated that the bars were having bank marks. He stated that he had purchased the said gold from Bombay but he was not having bill for its purchase. However, he stated that the vendor had promised to send the bill subsequently.

(3.) Thereafter on 24/04/1956 a show cause notice was issued by the Collector of Customs and Central Excise, Baroda, asking the petitioner to show cause why 300 tolas of gold should not be confiscated under Sec. 167(8) of the Sea Customs Act and further to show cause why penalty should not be imposed for the contravention of the provisions mentioned therein. In reply to the show cause notice the petitioner submitted his reply on 20/06/1956 wherein he admitted that he came to Jetpur from Bombay on 8/02/1956 from his possession 300 tolas of gold were seized by the P.S.I. Jetpur after taking search of his baggage at the Octroi Naka, Jetpur. He denied that it was imported by him and that he had no knowledge that it was smuggled gold. He stated that his father's firm known as "Gulabchand Velji" had dealings with the firm M/s. Kantilal Nanchand and Co., Mumbadevi Road, Bombay, in forward gold and silver. He wanted to invest his small capital in some commodity with a view to make some profits. Therefore, he purchased the gold by paying Rs. 28000.00 in cash in expectation that the price of the commodity may go up from Kantilal Nanchand of Bombay. He further admitted that because of the search by P. S. I. he was confused and made a statement to the police by giving the wrong name of Vrajlal as the person who sold him the gold. He admitted that he had no Ankda, Bill or voucher for the purchase of gold seized from him. He sent his brother Mansukhlal to Bombay to get necessary Ankda on the next day from M/s. Kantilal Nanchand and Co. but his efforts failed. He himself went to Bombay and requested the aforesaid Kantilal to give him the necessary Ankda. He wrote letters from time to time to M/s. Kantilal Nanchand & Co. but without any avail. Subsequently he wrote a registered letter to M/ s. Kantilal Nanchand and Co. on 12/04/1956 by stating that they had cheated him in passing off smuggled bars. After giving an opportunity of personal hearing to the petitioner, the Collector of Central Excise, Baroda, passed the adjudication order on 7-9-1956 confiscating 300 tolas of gold bars under Sec. 167(8) of the Sea Customs Act. However, no penalty was imposed on him under the said section.