GANESH SHANKER YADAV AND ANR. Vs. CC

JUDGEMENT

(1.) THE brief facts of the case are that on the basis of secret information, the DRI officers of Lucknow kept surveillance at Lucknow -Faizabad Road near Barabanki on 8.4.1997. On 9.4.1997 morning, the suspected tanker bearing registration No. UP 77/9521 was seen on the road; the officers signaled the tanker to stop but the driver drove away and the tanker was intercepted after chase of 5 kms. One Mannu Khan was in the tanker which was driven by Shri Rajendra Prasad, both of whom told the officers that the tanker was carrying molasses. On questioning by the officers, both the persons admitted that the front two compartments of the tanker were loaded with smuggled cardamon and medicinal powder. 74 packages were found in the tanker, 66 contained small cardamom valued at about Rs. 10 lakhs and weighing 1650 kgs, 7 bags contained 175 kgs of yellow colour medicinal powder valued at approximately Rs. 2 lakhs and one bag contained 700 torch heads valued at Rs. 14,000/ -. Samples of medicinal powder were drawn for analysis and it was reported to be Oxytetracycline Hydrochloride IP. Statement of Shri Mannu Khan was recorded on 10.4.1997. He stated that he had been introduced to one Shri Mohd. Sabir, who was a big smuggler; that he started working on the instructions of Mohd Sabir. On 8.4.1997, Shri Sabir took him to a forest at Indo -Nepal Border where the tanker was to be loaded, that Shri Sabir told him to go to Petrol pump at Pachperwa and intimate him as soon as the tanker in question reached there; that he went to the petrol pump and met the tanker driver Shri Rajendra Prasad, that he went back to the forest and informed Sh. Sabir Ali about the arrival of the tanker. In the night, he and Shri Sabir Ali and driver went to the forest and loaded the seized goods on to the tanker and after loading them, left Pachperwa in the middle of night. He also stated that Sabir Ali and three other persons escorted the tanker upto Gonda in a Jeep. He stated that he was instructed by Shri Sabir Ali to take the tanker to a place in Kanpur and contact one Shri Salam and one Shri Chand and inform them about the arrival of the tanker. He stated that even earlier, he had carried medicinal powder and small cardamom of foreign origin from Pachperwa to Kanpur and he was getting Rs. 2,000/ - per trip from Sh. Sabir. The driver Shri Rajendra Prasad stated that tanker belonged to Shri Ganesh Shanker Yadav; that he had met Chand and Salam; that Salam was using the tanker for the purpose of smuggling and was paying Rs. 20,000/ - per trip to Shri Ganesh Shanker Yadav; that Salam and Chand told him about Mohd Sabir. He corroborated the evidence of Mannu Khan regarding taking of the vehicle to the forest, loading it with the goods under seizure, escort of the tanker upto Gonda by Shri Sabir Ali and three others etc.

(2.) SHRI Sabir Ali's statement was recorded on 17.7.1997 in which he stated that he had been arrested by the Customs authorities of Gonda in 1985 on smuggling charges and that he was detailed under COFEPOSA. As regards the consignment of 75 bags seized on 9.4.1997, he stated that he had no connection with the same and he denied any connection with Salam or Chand or Mannu Khan, Rajendra Prasad and G.S. Yadav. Shri G.S. Yadav denied involvement in smuggling of the seized goods.

(3.) WE have heard Shri S.C. Jindal, learned Advocate Shri M.M. Dube, learned DR. We find that the case of the Department is based on recovery of goods of third Country origin and statements of various persons. The statements of Shri Rajendra Prasad, driver of the tanker and Shri Mannu Khan, occupant of the tanker, contained information about the involvement of Shri Sabir Ali in the smuggling of goods of third Country origin. Both these persons have not resiled from their original statements and their affidavits filed before the Commissioner of Customs, in which they had gone back upon their earlier statements are very belated and joint affidavits have been filed on 16th June, 1997 which is two months from the date of their original statement under Section 108 of the Customs Act, 1962. We therefore, hold that the statements of Shri Mannu Khan and Rajendra Prasad establish the involvement of Shri Sabir Ali in the smuggling of consignment under seizure and sustain the penalty imposed on Shri Sabir Ali. However, in the facts and circumstances of the case, we reduce the penalty on Shri Sabir Ali to Rs. 50,000/ - (which is the amount directed to be paid in terms of the Stay order).