ESTEVEN D SOUZA Vs. UNION OF INDIA

JUDGEMENT

(1.) THESE two petitions can be disposed of by a common Judgment and Order as it arises out of the penalty levied on the petitioners pursuant to the show cause notice dated 13th May, 1985 issued by the Collectorate of Customs and Central Excise, Goa against the petitioners concerning the same transaction and pursuant to which they have been penalized by a common order dated 30. 11. 1988 concerning the seizure of textiles, video cassettes and old ready made garments valued at Rs. 63,32,940/- (mv) from the residential premises of Shri Yeshwant Vishnu Vete at Morgaon, Banda (Sawantwadi) and seizure of vessels and vehicles.

(2.) THE brief facts leading to initiation of the proceedings against the petitioners were as under: -Officials of the respondents on 16. 11. 84 happen to accost one Ramakant who was taken to Customs House, Marmagoa for interrogation. It is at this time that the petitioner Shri Estevam alias Menino D'souza (in W. P. No. 55/02) came to the Customs House and inquired about the said person. His name was disclosed as Ankush Tukaram Chodankar. It is the case of the respondents that on their interrogation it was found that the contraband goods were landed on 15. 11. 84 in which several persons were involved and insofar as the petitioners were concerned, they were responsible for transhipping the contraband consisting of 195 packages from the Arab dhow in two fishing trawlers viz. 'shri Ganesh' and 'virginia Isabel' and the same were brought to Old Goa jetty. From there they were loaded in three trucks by using ferry boats at Old Goa and Diwar with the connivance of the crew of the ferry boats the goods from the trawler were loaded in the trucks in mid-stream, one by one and were subsequently transported from Marmagoa to the house belonging to one Yeshwant V. Vete and Vishnu Y. Vete and were stored in two rooms of their house at the instance of Shri Mangaldas Kanekar of Banda. During the course of investigation, the Customs officials were able to seize and take over possession of the contraband goods under the panchanama dated 24/25. 11. 84 under the reasonable belief that the same was liable for confiscation under the Customs Act, 1962. The seized goods were brought to Marmagoa Customs House. They were inventorised in the presence of panchas and assessed to be valued at Rs. 63,32,940/ -. Further Indian Currency worth Rs. 15,000/- came to be seized from the petitioner Shri Estevan @ Menino D'souza which was part of the advance received from Shri Simplicio Almeida towards the hire of trawlers. It was also seized under a panchanama dated 16. 11. 84. The Customs officials seized the two trawlers F. T. Shri Ganesh' and 'v. Isabel' which were used to transport the contraband goods from Arab dhow to Old Goa under a panchanama dated 18. 11. 84 under the reasonable belief that they were liable for confiscation under the Customs Act, 1962. The Customs officials also carried out search and seizure of the two trucks and in the course of investigation they were also able to round about all the persons who were concerned with the transaction and on interrogating them their statement under S. 108 of the Customs Act came to be recorded.

(3.) THE respondents in addition to prosecuting the petitioners and their associates also initiated proceedings against them for confiscation of the property seized from all these persons and for levying penalty for which show cause Notice dated 13. 05. 85 came to be issued and after necessary inquiry was conducted, the Addl. Collector of Customs and Central Excise passed an order dated 30. 11. 88 and insofar as the petitioners are concerned, a sum of Rs. 2,00,000/- was imposed as penalty on Estevan @ Menino D'souza and on petitioner Thomas D'souza a sum of Rs. 50,000/- was imposed as penalty under Section 112 of the Customs Act 1962. Indian currency seized from the petitioner Estevan D'souza was adjusted against the aforesaid personal penalty. This order was based on the finding that in the statement recorded under S. 108 of the Customs Act, 1962 both the petitioners have admitted their participation in smuggling of contraband by using the two fishing trawlers for the purpose of transportation of the contraband from the Arab dhow at the high seas to Old Goa jetty and having off-loaded the same in the waiting trucks. It was the case of the petitioners that they have nothing to do with the smuggling of contraband and they have been falsely implicated in the case. They have also challenged having not given any statement as recorded under S. 108 of the Customs Act, 1962 and that it was extracted under duress and they were beaten while in customs custody and as such on this ground also their statements are not admissible in addition to other pleas in their defence.