SHAINAAZ S. PUNJANI Vs. COMMISSIONER OF CUSTOMS, ACC

JUDGEMENT

(1.) The facts of the case in brief are that on 19.8.89 Customs Officers of Sahara International Airport, Bombay, on prior information intercepted Sri Sultan Shaban Ali Punjani, his wife the appellant, son Nazar Sultanali Punjani, daughter Reema Sultan Ali Punjani and Ilham Sultan Ali Punjani, who arrived from Abudhabi by Air India Flight No. AI708 and had declared their goods worth Rs. 2250 CIF to the customs at counter No. 13. They were asked before panchas whether they carried any gold either in their baggage or on their person to which they replied in the negative. Not satisfied with that, their entire baggage was screened, Appellant and Sultan Shaban Ali Punjani were very reluctant to put lady's vanity box in the screening machine. On screening it on machine, dark patches were noticed on the screen indicating the presence of some hard metals inside the vanity bag, whereas no such things were indicated on result of other baggages. Before panchas, they were asked whether they carried any gold inside the vanity bag, again they replied in the negative. Vanity bag was opened in the presence of panchas and passengers. On examination, heavy clothbelt of abnormal size was found, 50 foreign marked gold bars wrapped in carbon paper and adhesive tapes were found and recovered, when all the family members of appellant passed through the metal detector frame one by one, before panchas, it gave a positive signal, for the presence of hard metal in all the four persons, including appellant. On their personal search before panchas, foreign origin 5 gold bars were found concealed in specially stitched compartment of underwear worn by appellant's husband, 2 gold bars from his socks worn. They were wrapped in carbon paper with adhesive tapes. Ten gold bars of ten Tolas each with foreign markings concealed in the specially stitched bra worn by appellant and 76 gold bars of same weight concealed in specially stiched cloth belt tied around her wait, were found and recovered. Five gold bars were concealed in the underwear and 4 gold bars were concealed in the socks of son of appellant Nazhar Sultan Ali Punjani was found and recovered. 25 gold bars concealed in the specially made cloth belt worn by daughter of appellant Reema Sultan Ali Punjani were found and recovered. Each gold bar had foreign markings and was weighing 10 Tolas. In all, from appellant, her husband, son and daughter were found in possession of 177 gold bars of 10 tolas each bearing foreign markings collectively weighed 20638.2 grams (1770 tolas) valued at Rs. 39,62,543.40 International market value and Rs. 66,04,224 lock market value. They were seized under the Panchanama, on a reasonable belief that they were smuggled into India and hence liable for confiscation under the provisions of the Customs Act. Vanity bag cloths belts, underwear, bra, socks, carbon papers used to conceal the above gold bars were also seized under the Panchanama under the reasonable belief that they are liable to confiscation under the provisions of the Customs Act. Statement under Section 108 of the Customs Act of all the above persons were recorded. Appellant and her husband were arrested under Section 104 of Customs Act and produced before the Chief Metropolitan Magistrate, Esplanade, Bombay for remand under the application No. RA 861/89, retraction statement dated 23.10.89 from the appellant was received and duly replied by the assistant Collector of Customs, AIU Bombay on 7.12.89.

(2.) Import of gold into India, without the cover of valid permit issued by the Reserve Bank of India is prohibited under Section 13(i) of FERA1973 and Notification 12(11)FI 48/2518148 (as amended) of Finance Ministry Govt. of India and under Section 67 of the above Act, and said prohibition is deemed to have been imposed under Section 11 of Customs Act. The appellant and her husband, childrens had no such permit. They did not produce any evidence for legal import/acquisition for the gold bars, seized from them. They are liable to confiscation under Section 111(d) of the Customs Act. Concealment, non -declaration and mis -declaration of gold bars seized renders them liable to confiscation under Section 111(f)(1) and (m) of the Customs Act, vanity box, underwear, bra, socks, cloth belt, carbon papers used for concealing the seized gold bars are liable to confiscation under Section 118 read with Section 119 of Customs Act. Appellant, her husband, son and daughter are concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing or dealing in the goods, which they knew or had reason to believe were liable to confiscation under the Customs Act. Knowingly aided and/or abetted in the smuggling of gold bars under seizure liable to confiscation under the Customs Act, 1962 and have thus rendered themselves liable to penal action under Section 112 of the Customs Act, 1962. Accordingly show cause notice was issued on 19.1.90 to all the above 4 persons under Section 124 of Customs Act, calling upon to show cause as to why the seized gold bars should not be confiscated under Section 111(d) of Customs Act, and why penalty should not be imposed on them under Section 112 of the Customs Act. Personal hearing was held on 11.4.90, 6.7.90 and 9.8.90. Appellant appeared along with her consultant on 9.8.90. They were heard by Additional Collector of Customs (AP) Bombay. After going through the records available, and considering the contentions of consultant and reply to show cause notice filed on 14.7.90 on behalf of all the four above -named persons, passed the impugned order confiscating 177 gold bars seized absolutely under Section 111 (d) of Customs Act, and imposing penalty of Rs. 25 lakhs each on the appellant and her husband under Section 112 of the Customs Act. Hence this appeal by the appellant.

(3.) The appellant has filed written submissions, with copy of reply to show cause notice on 8.9.2000. Heard both sides. Appellant has submitted that she has only obeyed her husband, as a dutiful wife, and gave statement as told by him, without understanding the consequences. He undertook to look after children and asked her to take gold bars. She obliged show cause notice is not personally served on her. All house hold articles are seized, but not returned. Gold was given at Abudhabi Airport. Ld. JDR Sri T.D. Bodade has supported the impugned order and pointed out page 10, regarding discussion and finding that show cause notice is in time, and page 11 about the role played by appellant and her appearence with consultant and heard them, and urged to dismiss the appeal.