SAVINDER LAL VERMA Vs. CC

JUDGEMENT

(1.) THE facts of the case, in brief, are as follows: -

(2.) ON 27.11.1985 acting on an information, the officers of Customs and Central Excise Division, Ambala, apprehended the appellant at a three wheeler Scooter stand opposite Bus Stand, G.T. Road, Ambala Cantt and conducted his personal search in the presence of two independent witnesses. A cloth "Vansali" was found tied around this waist, which on examination was found to contain 5 gold bars of 10 tolas each bearing foreign markings "Swiss Corporation 10 tolas 999.0" wrapped in a piece of Urdu Newspaper tied with rubber band. Appellant on demand could not produce any evidence, documentary or otherwise in support of the lawful import/purchase/possession/acquisition of the said 5 Gold Bars 10 tolas each of foreign origin and valued at Rs. 1,20,000/ - and as such the same were seized under Section 110 of the Customs Act, 1962 and Section 66 of the Gold Control Act, 1968 on the reasonable belief that the same had been smuggled into India in violation of the restriction imposed on the import thereof and as such were liable to confiscation under the provisions of the Act. Statement of Shri Savinder Lal Verma, appellant was also recorded on 27.11.1985 in which he admitted the recovery and claimed ownership of 5 gold bars of 10 tolas each of foreign markings seized from his possession. He said that he had brought the said seized gold bars from one Shri Purshotam Lal of Katra LSat Narain, C'handni Chowk, Delhi, having telephone No. 2528694 installed therein; that he also brought 5 Gold Bars in the 2nd week of November, 1985; that out of those 5 gold bars, he sold out most of them to M/s. Hans Raj Inder Lal, Halwai Bazar, Ambala City, that rest of the gold bars were sold to different Goldsmiths of Ambala City in small pieces and that he used to deal in Gold Bars and primary gold from his shop situated in a street opposite Bata Shop, Ambala City. On making a detailed investigation, the party was issued show cause notice. Show cause notice was duly answered by denying the charges. Commissioner who adjudicated the matter negatived the contentions of the party and held that 5 gold biscuits of 1.0 tolas each recovered from the appellant are liable for confiscation under Section 111(d) of the Customs Act and ordered accordingly. In addition to imposing penalty of Rs. 60,000/ - under Section 112(b) of Customs Act and a penalty of Rs. 15,000/ - under Section 74 of the Gold Control Act on Purshotam Lal, the main party, he also imposed penalty of Rs. 20,000/ - under Section 112(b) of the Customs Act and Rs. 5,000/ - under Section 74 of the Gold Control Act, 1968, on the appellant.

(3.) SHRI S.C. Puri, learned Advocate, appearing for the appellant challenged the recovery of gold. He submitted that according to the department, gold was recovered in the presence of two independent witnesses on the night of 27.11.1985 but no such gold has been recovered in the presence of the witnesses as can he seen from the statement of Sat Pal who has clearly stated that he was called in the Custom's office in Ambala in between 12.00 P.M. and 1.00 noon. Nothing was recovered in his presence but he was told that gold has been recovered from one person. He submitted that other witness did not appear during adjudication proceedings in spite of the specific request made by the party. Further, he said that department has also initiated prosecution proceedings and Chief judicial Magistrate, Ambala has acquitted the accused (appellant) by obuifing that the prosecution has not been able to prove charge against the accused beyond a reasonable doubt. He submitted that the statement of the appellant given on 27.11.1985 cannot be taken cognizance since it was given under duress. The very next day the appellant was sent a telegram on 27.11.1985 stating "Wrongfully implicated in custom case and statements recorded forcibly. Pray justice." On cross -examination of the punch witness on 10.6.1996, he has stated that no gold was recovered in his presence but he has been informed that gold has been recovered from one person. Apart from statement of Sal Pal during cross -examination, learned Counsel drew my attention to the finding given by the Commissioner that there is a contradiction in the statement of Purshotam Lal and Sant Lal. Further the Commissioner in the impugned order observed that seizure was effected on 27.11.1985 and the proceedings were pending for 11 years which itself is torture and punishment.