ROOPA SINGH AND ANR. Vs. CC, AMRITSAR

JUDGEMENT

(1.) BRIEF facts of the case are that on 18.2.1995, the Customs Preventive officers along with the officers of the Anti -smuggling Unit of Punjab Police, Amritsar during a joint NAKA on Ajnala Amritsar Road apprehended two persons (the appellants herein) coming on a bicycle; the personal search of Roopa Singh resulted in recovery of 20 gold biscuits of foreign origin from a cloth thellee tied around his waist and 29 gold biscuits of foreign origin were recovered from a cloth thellee tied around the waist of Bakshish Singh. Neither of the appellants could produce any evidence showing legal possession/acquisition/transportation or importation of the gold biscuits. The gold was assayed and was certified to be of purity of 24 Ct. valued at approximately Rs. 28.51 lakhs. A recovery -cum -seizure memo was drawn on the spot; statements of both the appellants were recorded under Section 108 of the Customs Act. Roopa Singh in his statement disclosed that at the instance of one Gurmej Singh, he and Bakshish Singh went to the fields of Kashmira Singh of village Daleri and stole three bandoleers containing 324 gold biscuits of foreign markings and brought the same to the shop of Bakshish Singh, that one Karaj Singh, son of Gurmej Singh came and took 184 gold biscuits out of 324 gold biscuits, after giving 70 gold biscuits to each appellant as their share, that 20 more gold biscuits were given by Karaj Singh to his father, that they started selling gold biscuits through Gurmej Singh and his son and that they had purchased a plot in Amritsar out of the sale proceeds of the gold, that on 18.2.95, Roopa Singh dug out 49 gold biscuits from the place near tube well in village Muniandian and packed 29 gold biscuits in one thellee and 20 gold biscuits in another. Both the appellants carried these two thellees separately (quantity of gold biscuits carried has already been set out in the opening paragraph of this order, that Roopa Singh reached Ajnala bus -stand, Bakshish Singh was waiting for him; he handed over one thellee containing 29 gold biscuits to Bakshish Singh which he tied around his waist. When they both reached near the fish breeding pool, they were apprehended by the Customs officers. A show cause notice was issued to all the 4 concerned persons as well as Gurmej Singh and Karaj Singh. Neither Gurmej Singh nor Karaj Singh appeared before the adjudicating authority. The case was adjudicated against the appellants herein, holding that they were involved in the acquiring, possessing, carrying and keeping of the gold biscuits which they knew or had reasons to believe were liable to confiscation under Section 111 of the Customs Act. The adjudicating authority imposed a penalty of Rs. 2 lakhs on Roopa Singh and a penalty of Rs. 1 lakh on Bakshish Singh. Learned Counsel, Ms. Manjula Gupta submits that the statements of Roopa Singh and Bakshish Singh was retracted by them although at a later stage, that it is improbable that such a large quantity of gold i.e., 324 gold biscuits would have remained hidden in the fields for a long period time, that since Gurmej Singh and Karaj Singh have been exonerated, the veracity of the statements of the appellants cannot be accepted and, therefore, she submits that there is not enough evidence on record to hold that either of the appellants has is any way linked with either acquiring or possessing or transporting or keeping gold of foreign origin which they either had knowledge of, or had reasonable belief that it was liable to confiscation. She, therefore, pleads that the penalty imposed on both the appellants may be set aside.

(2.) LEARNED SDR, Shri Sharan while reiterating the findings in the impugned order, highlights the aspect that the retraction of both the appellants came very belatedly viz. after a gap of about six months from their original statements recorded under Section 108 of the Customs Act. He also submits that the statements were tendered by the appellants out of their free will and there was no coercion or duress employed against them so as to extract their statements and that since the statements were voluntary, the recovery coupled with the statements of both the appellants is sufficient for the Department to hold that the burden which was cast upon the appellants of proving that they were not connected in any way with the seized gold of foreign origin had not been discharged by them. He, therefore, urges that the impugned order may be upheld. He also points out that the appellants were extended cross -examination of the investigating officers and cross -examination did not shake their original statements. We have carefully considered the submissions of both sides and perused the impugned order. We find that detailed statements have been tendered by both the appellants in which they have explained as to why they were carrying the gold on the date of seizure. Such details would not have been available to any one other than the appellants themselves. The plea that the statements were recorded under duress is also not tenable in view of the fact that the statements were not resiled for a considerable period of time. The recovery and statements together would show that the stand of the Department is correct and we hold that the appellants have not discharged the burden of proof that they had nothing to do with the seized gold of foreign origin which onus is cast upon them in respect of the goods covered by Section 123 of the Customs Act. We, therefore, see no reason to interfere with the impugned order. However, considering the totality of facts and circumstances of the case, we reduce the penalty on Roopa Singh to Rs. 1 lakh and the penalty on Bakshish Singh to Rs. 50,000/ -. It may be noted that as per the Stay Order No. S/690 -691/98 -NB(DB) dated 10.11.1998, Roopa Singh had already deposited Rs. 30,000/ - and Bakshish Singh Rs. 15,000/ - and this amount may be adjusted while recovering the balance amount of penalty.