USMAN KHAN, LIYAKAT KHAN, Vs. CC

JUDGEMENT

(1.) The above captioned appeals have been directed against the Order -in -Original dated 18.9.2001 vide which the Commissioner of Customs has ordered absolute confiscation of the seized in dian currency of Rs. 15,00,000 under Section 121 of the Customs Act and imposed penalty of Rs. 3,00,000 on appellants Nos. 1 to 3, of Rs. 4,00,000 on appellant No. 4 and of Rs. 1,00,000 on appellant No. 5.

(2.) On 8.9.98, acting on the prior in formation, the officers of Customs Range, Churu, in tercepted Jeep No. RJ -23 -C -2736 near village Khotla, on Fatehpur Churu Road, while coming towards Churu. The said jeep was being driven at that time by Usman Khan, appellant and two other persons who disclosed their names as Ayub Khan and Ashan Khan, were found sitting by his side. The jeep was brought to the office of the Customs Range and through search of the jeep was conducted in the presence of two in dependent witnesses. On lifting cushion of the passenger seat, ten packets of in dian currency notes containing Rs. 5,000 were recovered. Thereafter, on further checking, Rs. 15,00,000 more were recovered from the jeep. Usman Khan, appellant when enquired about this currency, disclosed that it was given to him by his brother Liyakat Khan (appellant) who had collected the said money by selling foreign marked gold biscuits. He further disclosed that this amount was to be given by him to Rajindra Gujar, appellant, as directed to him by his brother Liyakat. He, however, could not disclose or produce any document about the legal importation of gold biscuits, sold by his brother Liyakat Khan. On a reasonable belief that recovered in dian currency was acquired from the sale of smuggled gold and was liable to be confiscated, the same was seized under Section 110 of the Customs Act, with a proper panchnama drawn on the spot, attested by Hukam Chand Gaur. The jeep was also seized. Liyakat Khan, appellant was also examined on 8.9.98 and he, in his statement, disclosed that on reaching the customs office he came to know about the recovery of Rs. 15,00,000 from his brother Usman Khan. He also admitted that his brother was in volved in smuggling activity. He, however, denied his business relations with his brother. He also disclosed that seized jeep was purchased by his brother Usman Khan from one Mahavir Lamba. The residential premises of Liyakat Khan and Usman Khan, appellants were also searched, but no in criminating article was found. However, from the residential premises of Rajendra Gujar, appellant, three letters sent from Saudi Arabia were recovered and from those letters, it appeared that he was also, in volved in smuggling of goods. Similarly, from the premises of Kailash Khandelwal, appellant, certain in criminating documents, such as diary, unsolved papers, blank envelope, cheques etc. were recovered. Rajindra Gujar, appellant also, in his statement, disclosed that he remained in Saudi Arabia for 18 years and on coming to in dia, he contracted Shri Khushi Mohd and Farid who were doing hawala business and who advised him to contact Usman Khan, appellant and thereafter, he contacted him. He further disclosed that Khushi Mohd told him that Kailash Khandelwal, appellant would sell the gold and would deliver the sale proceeds to Usman Khan.

(3.) During the course of in vestigation, the statements of Khushi Mohd. And Farid were also recorded. On completion of in vestigation, the present appellants were served with show cause notice for confiscation of the seized in dian currency of Rs. 15,00,000 and for imposition of penalty on him. They contested that notice by denying their in volvement in the smuggling of the gold. Liyakat Khan, appellant also claimed money by alleging that out of this Rs. 10,00,000 represented the sale of 85 foreign marked gold biscuits duly imported by him, on payment of customs duty and Rs. 5,00,000 were withdrawn by him from NRI account of Ibrahim Khan with the bank of Baroda. He also disclosed the name of persons to whom he sold the gold.