CYRUS NAZAR KOLAH Vs. UNION OF INDIA

JUDGEMENT

(1.) In pursuance of information regarding concealment of large quantity of contraband goods on board the ship M.V. 'Goods Hope-l', a vigil maintained and when the ship arrived in the early hours of November 11, 1977 and anchored of Bombay Floating Light due to immobilisation of the engine, the Customs Officers searched the ship. On search it was noticed that contraband article, consisting of 384 pieces of wrist watches, 7 pieces of watch straps, 11 meters saree material, 4 pieces of calculators and several pieces of cassette tapes were hidden. All the contraband articles were seized. Subsequent search resulted in recovery of several more contraband article. After the search was over, the statement of the Captain, First Engineer, Second Engineer, and other officers on the vessel were recorded. The Additional Collector thereafter issued the show cause notice to the officers, including the petitioner, who was the second explain why personal penalty should not be levied as the officers were responsible in smuggling the contraband article or in any event they had full knowledge of such contraband articles being stored on the ship. The petitioner gave his explanation claiming that he was not aware of the existence of the contraband goods, or did he actively engaged in the smuggling of goods. The Additional Collector by order date July 31, 1978 rejected the defence ad imposed a personal penalty on the officers. The petitioner was directed to pay penalty of Rs. 50,000/-. The petitioner carried an appeal with other officers before the Central Board of Excise and Customs, but the appeal ended in dismissal by order dated December 31, 1979. The petitioner carried a revision before the Central Government and by order dated September 3, 1980 the revisional authority confirmed the order levying the penalty, but reduced the amount of penalty to Rs. 30,000/-. The order passed by the three authorities below are under challenge in this petition filed under Article 226 of the Constitution of India.

(2.) Miss Shroff, learned counsel appearing on behalf of the petitioner, submitted that the order of the three authorities cannot be substained in view of the judgment recorded by the Additional Chief Metropolitan Magistrate, 32nd Court, Esplanade, Bombay on August 3, 1982 discharging the petitioner under Section 245 of the Criminal procedure Code. The learned counsel urged that as the petitioner was acquitted of the charges framed under Section 135(1)(a)(i) and 135(1)(b)(i) of the Customs Act Section 5 of the imports and Exports Control Act, it is not permissible to levy penalty under the provisions of the Customs Act. The submission cannot be accepted, because the mere fact that the petitioner was acquitted by the Magistrate is not enough to hold that penalty imposed in the departmental proceeding cannot be sustained. It hardly requires to be criminal court is different and distinct.

(3.) Miss Shroff then urged that three was of materials before the authorities below to record a finding about involvement of the petitioner in the act of smuggling the contraband article. Three considerable merit in this submission of the learned counsel. The authorities below have proceeded to find the petitioner liable for payment of penalty on the basis of the statements made by one Hussein before the Customs Authorities and which recorded after the ship was raided. Indeed the perusal of the orders of the three authorities indicate that Hussein was one of the accomplices, if not dominant partner. It was urged by the learned counsel that Hussein was an oil-man working on the ship and the authorities were wrong in relying upon his statement before the Customs Authorities. When he was not tended for cross-examination in the proceeding in pursuance of the show cause notice. It was urged that the petitioner sought Hussein for cross-examination but that opportunity was not given as Hussein was not available. The learned counsel is right on contending that penalty could not have been imposed by reliance only on the statement of Hussein when he was not available to ascertain the correctness of the statements. Indeed the department could not produce Hussein even in the could not produce Hussein even in the prosecution launched before the Metropolitan Magistrate. In these circumstances, it is difficult uphold the orders passed by the three authorities below imposing penalty on the petitioner. I wish to make it clear that I am not holding that in no case the penalty can be imposed unless person, on whose statement reliance is placed, is produced for cross-examination but on the facts and circumstances of the present case, it will have to be held that the order of penalty is not accurate.