SHAMSHER SINGH Vs. CC

JUDGEMENT

(1.) THE brief facts of the case are that on 31.1.1995, Customs Officers of CPS, Samba received information from BSF about recovery of gold biscuits, Indian and foreign currency and pistols with ammunition from 3 Pakistani nationals and 3 Indian nationals. The joint interrogation was done by the Customs and BSF. The cloth belts recovered from Bashir Ahmed Sandhu and Mohammed Iqbal contained 120 and 100 gold biscuits of foreign origin respectively, the cloth belt of Sukhdev Singh contained approximately Rs. 1.15 lakhs and over 1 lakh US $ foreign currency was also recovered from Major Singh. Pistons were recovered from Maqbool Ahmed and Jagbir Singh. Major Singh admitted recovery of Indian and foreign currency and pistols and disclosed that the recovered currency was to be exchanged with the 3 Pakistani nationals against consignment of gold which was recovered from them. The goods recovered were seized under Section 110 of the Customs Act, 1962. The gold biscuits were certified to be of 24 Ct. purity weighing over 25 kgs. and valued at Rs. 1.21 crores. In his statement dated 31.3.1995 and 7.2.1995, Sukhdev Singh stated that after receiving the gold, the same was to be handed over to Gogi (Gogi is Shamsher Singh, the appellant herein above), that the foreign currency was given by Gogi to be handed over to the Pakistani nationals in exchange for gold. He also furnished the telephone No. of Gogi. Statements of other persons were also recorded. The residential premises of the appellant was searched; but nothing incriminating was recovered therefrom. He was apprehended on 16.4.1995 and his statement was recorded under Section 108 of the Customs Act in which he admitted his involvement in smuggling of the gold and admitted that he had delivered the foreign currency on 30.1.1995 to Sukhdev Singh. He further named one Jatinder Kaur and her husband, Davinder Singh of Ludhiana for whom he was working. The residential and business premises of Jatinder Kaur were searched but nothing incriminating was recovered. Jatinder Kaur and her husband denied that they knew Shamsher Singh and also denied having any knowledge about any person named by Shamsher Singh in his statement. On the basis of investigations, a show cause notice was issued to all the six persons apprehended on 31.1.1995, as well as to Shamsher Singh, proposing confiscation of the seized gold, currency and pistols and ammunitions and proposing imposition of penalty upon the noticees. The adjudicating authority upheld the confiscation of the seized goods and imposed a penalty of Rs. 2 lakhs each on Sukhdev Singh and Shamsher Singh and Rs. 50,000/ - on the other two Indian nationals viz. Jagbir Singh and Major Singh, but dropped the penalty proceedings on the 3 Pakistani nationals. The present appeal is against the imposition of penalty of Rs. 2 lakhs on Shamsher Singh.

(2.) WE have heard Shri B.S. Grewal, learned Advocate who principally contends that the appellant's statement was recorded for the first time on 7.4.1995 itself and that he was in the custody of the Customs Officers from that date and it is not that his statement was first recorded on 16.4.1995, that the statement was recorded under coercion and duress and that the appellant had been arrested on 16.4.1995, that Sukhdev Singh who is the only person who has implicated the appellant was not made available for cross -examination and, therefore, there is insufficient material to hold that the appellant is involved in smuggling activities and supplying foreign currency to Sukhdev Singh from whom he allegedly received gold biscuits and, therefore, he pleads for setting aside of the penalty imposed upon the appellant. Learned DR Shri Sanjiv Srivastava submits that although cross -examination of Prem Nath, Superintendent of Customs reveals that the statement of Shamsher Singh was first recorded on 7.4.1995, in the PWD Guest House, Nadaun, he left after his statement was recorded, and fresh summons were issued to him to which he did not respond and, therefore, the officers visited Shamsher Singh's residence on 16.4.1995 and recorded his statement. He submits that the statement is in the appellant's own handwriting and that he has not retracted from his statement in spite of being produced before the Sub -judge, Kangra who remanded the appellant to transit custody for production before the Court of Chief Judicial Magistrate, as seen from the entries in the remarks column of Superintendent's duty sheet. He submits that in view of the confessional statement of the appellant and the statement of Sukhdev Singh, the Department has discharged the onus to prove involvement of the appellant in the offence of smuggling. He, therefore, urges that the penalty may be upheld. We have carefully considered the rival submissions. We do not accept the argument that the appellant had already been taken into custody on 7.4.1995 as it is difficult to believe that the Customs officers would take some one into custody and travel from place to place for a period of about 10 days before producing him before a Magistrate, in view of the high risk involved in the likelihood of the appellant complaining of unlawful detention. Further his statement was recorded not in the Customs Office but in a public place viz. Forest Rest House and the appellant has also not been able to show that any threat was exercised over him to obtain admission from him and, he has also not retracted from his statement. The adjudicating authority has also not rejected the request of the appellant for cross -examination of Sukhdev Singh, but since Sukhdev Singh was not available, his cross -examination could not take place. In view of his voluntary statement which is a piece of valuable evidence, we hold that the appellant's complicity in smuggling has been established and that he is, therefore, liable to penalty. Accordingly, we uphold the imposition of penalty upon the appellant; but having regard to the facts and circumstances of the case, reduce the penalty to Rs. 1 lakh.