BABU AHMAD Vs. CC, LUCKNOW

JUDGEMENT

(1.) THE appellant herein is aggrieved by the imposition of penalty of Rs. 2 lakhs upon him by the Commissioner of Customs, Lucknow who has held that he was concerned in purchasing/selling and transporting of ball bearings and video cassettes of foreign origin valued at Rs. 22,72,500/ - recovered from a tractor trolley on 28.2.1996 in Plibhit district. The adjudicating authority has also held that he was one of the three persons sitting on the tractor trolley at the time of interception, and that he ran away from the spot at the time of interception. On the basis of the police report dated 29.2.1996 and the statements of Iqbal Ahmed and Gurpreet Singh who were the two persons found on the tractor trolley on the date of interception, and were detained in police custody. We have heard Shri L.P. Asthana, learned Counsel who submits that the appellant was in no way connected with the offence with which he has been charged, that neither Iqbal Ahmed nor Gurpreet Singh stated that the appellant was accompanying them on the tractor trolley, that the statement dated 29.2.1996 of Iqbal in which he deposed that the goods were to be handed over to Babu Khan at Babaganj Town of Bareilly District does not lead to the conclusion that it is the appellant herein who is Babu Khan named by Iqbal, that the above statement of Iqbal was recorded by the Customs authorities when Iqbal was in police custody and, therefore, it is not admissible in evidence, that in his statement dated 12.3.1996 recorded under Section 108 of the Customs Act 1962, Iqbal denied that he knew any person by the name of Babu Khan. Learned Counsel submits that the name Babu Khan is a very common name in that area, that no one has identified the appellant as the person who is stated to have run away when the tractor trolley was intercepted and that Iqbal has not identified him as the person to whom smuggled goods seized from the tractor trolley were to be handed over. He, therefore, submits that there is absolutely no evidence to hold that the appellant was involved in purchasing/selling and transporting of smuggled goods in question and, therefore, pleads for setting aside of the penalty.

(2.) LEARNED DR, Shri Sanjiv Srivastava reiterates the finding in the impugned order and submits that since the Fard Report dated 29.2.1996 of the police authorities shows that the appellant herein was one of the 3 accused sitting on the tractor trolley in question, penalty on the appellant is justified. We have carefully considered the above submissions. The statement of Iqbal that the smuggled goods were to be handed over to one Babu Khan is not admissible in evidence in terms of Section 27 of the Indian Evidence Act. Further, even this statement is not sufficient to link the appellant with the offence, in the absence of any identification of the appellant as the person on the trolley who ran away at the time of interception or as the person to whom the offending goods were to be delivered. The Fard Report also does not contain any details about the appellant and it only shows that one Babu Khan, resident of Nawab Ganj was present along with Iqbal and Gurpreet Singh when the tractor trolley was intercepted. The Fard Report does not mention Babu Khan's father's name. It is significant to note that Man Bahadur whom Iqbal named as the person who had employed him (Iqbal) to deliver the smuggled goods to Babu Khan, has also not identified the appellant as the person to whom the goods handed over to Iqbal Ahmed were to be delivered. The material on record is, therefore, totally insufficient to hold that the appellant was in any way concerned with the seized goods. We, therefore, set aside the penalty imposed upon the appellant and allow the appeal.