PRADEEP KUMAR Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) BY Order -in -Original dated 30 -11 -1998, Commissioner of Customs, Lucknow ordered confiscation of 3,426 kgs. of Cardamom allegedly of foreign origin along with the truck used for carrying the goods. He also imposed various amounts of penalties on ten persons under Section 112(b) of the Customs Act, 1962 including the present appellant, Shri Pradeep Kumar on the ground that he was the owner of the smuggled goods. The penalty imposed on the present appellant was Rs. 1 lakh. Hence this Appeal.

(2.) ALLEGATION against the appellant is that the said quantity of cardamom seized from a truck at 11.30 A.M. on 27 -10 -1997 near Lucknow on specific information received by the DRI Officers, was to be delivered to the appellant, a dealer in dry fruits in Delhi. The Department relies on the statements given by the driver of the truck, Shri Shrikant Tiwari and Shri Balbir Singh, another driver (and co -noticee in the case) to the effect that the impugned goods had been brought unauthorisedly from Nepal and the same was to be delivered to the appellant in Delhi. The appellant on the other hand maintains that he had no knowledge of any such unauthorised import of cardamom from Nepal. Commissioner in the impugned order had however found enough material to connect appellant with the seized goods and for imposing the penalty.

(3.) LD . Consultant, Shri V.R. Sethi arguing the case of the appellant submitted that the appellant had stated even at the time of giving his initial statement on 4 -3 -1998 that he did not know Shri Rajesh Kumar of Motihari in Bihar when the DRI Officers had questioned him. In reply to the Show Cause Notice also, the appellant had stated on 28 -9 -1998 that he had nothing to say about the seizure of the truck and the cardamom since he was not in any way concerned with the same. He had also submitted that the proposed action of imposition of penalty on him under the SCN was not justified in the facts and circumstances of the case. In reply to the SCN he had categorically denied that he was in any way involved in "operating, organising, financing or associating in such smuggling activities and in dealing with such smuggled goods" as alleged in the SCN. No penalty could therefore be imposed on him under Section 112 of the Customs Act. Ld. Consultant contends that the case of the Department was based entirely on the statements of the two drivers, who were co -noticee without any corroborative evidence. Reliance was placed on a number of decisions of the Apex Court and the Tribunal in support of the contention that no reliance can be placed on the statement given by a co -accused. Explaining the facts of the case, ld. Consultant submitted that the Customs Officers had visited the appellant's shop at Delhi and conducted search of the premises pursuant to the seizure of a certain quantity of cardamom near Lucknow on 27 -10 -1997 on the belief that they were smuggled from Nepal and on the assumption that the goods were meant to be delivered to the appellant. During the follow up investigation, nothing incriminating had been found in the appellant's shop. Further, during the interrogation of the appellant at the time of visit to the shop by Officers, Appellant had denied having any knowledge of Rajesh Kumar of Motihari in Bihar who was mentioned as the person responsible for the import of the said goods from Nepal as per the statement given by the driver of the truck. In reply to a further question from the Customs Officers as to whether he had ordered for any imported cardamom and as to how the driver of the mini truck could mention his telephone number in Delhi, appellant had stated that he had not placed any order for any Elaichi and that it was not in his knowledge that there was any seizure of any Elaichi near Lucknow and also that a number of persons visit his shop every day and take his visiting card. He had further stated that he did not know any person to whom he had given his name and telephone number. Ld. Consultant referred to the first statement given by Shri Shrikant Tiwari, the driver on 28 -10 -1997 immediately after the seizure wherein no mention has been made of the appellant or his telephone number. It was only in his subsequent statement that the driver had referred to the telephone numbers of Shri Pradeep Kumar and had also mentioned the names of the appellant and another person, Shri Surinder Kumar. There was another statement given by the driver of another truck, Shri Balbir Singh who, in his statement on 28 -10 -1997 had mentioned the telephone number of the present appellant. Ld. Consultant submitted that the only material for connecting the appellant with the seized goods were these two statements. He submitted that no reliance could be placed on the statements given by a co -accused without further corroborative evidence. He relied on the Supreme Court decision in Superintendent of Customs v. Bhanabhai Khalpabhai Patel [1995 (75) E.L.T. 508 (S.C.)] wherein it was held that statement of co -accused cannot be taken without corroborative piece of evidence and any charge based only on such statement cannot be the basis for imposing penalty. He also relied on the Tribunal decision in Commissioner of Customs (Prev.), W. Bengal, Calcutta v. Shri Ranjit Ghosh Alias Rana Ghosh reported in 1998 (24) RLT 156 in which it was held that penalty under Section 112 of the Customs Act, 1962 is not imposable on the basis of hearsay evidence contained in the uncorroborated statement of a co -accused. Reliance was also placed on the following case law in support of the said contention.