[Order]. - This appeal has been directed by the appellant against the impugned order-in-original vide which the Commissioner of Customs had imposed penalty of Rs. 5 lakhs on him.
2. On 27-11-1998 at about 2.00 PM, the appellant was intercepted outside the premises of Embassy of DPR Korea in the area of Greater Kailash-I, New Delhi. He arrived there in a sky blue Maruti car and after parking the same, went inside the Embassy premises. After some time, he came out holding one packet wrapped in newspaper in his hand, and at that time he was stopped by the DRI Officers, who were present there on a secret information against him. He was taken to the DRI Office at I.P. Estate and there, on conducting search of his car, the packet wrapped in a newspaper was recovered and then opened and it was found to contain 40 gold bars of 10 tola each. Thereafter, he was taken to the 7th floor of the Drum Shape Building, I.P. Estate, where Office of DRI is located and the Panchnama was prepared in the presence of two independent witnesses, namely, S/Shri Shishu Pal Singh and Manwar Singh Rawat. On conducting of personal search of the appellant, recovery of one driving licence and some US $ and French Franc were recovered. All the items were seized after preparation of the Panchnama. The statement of the appellant was also recorded wherein he admitted the recovery and failed to offer any explanation about the illegal possession and import of the gold bars and the foreign currency. On completion of investigation, show cause notice was served on him proposing the confiscation of the seized gold bars and the foreign currency, and also imposition of penalty on him. After getting his reply wherein he had denied the recovery of the gold bars and foreign currency, the adjudicating authority passed the impugned order vide which he ordered the absolute confiscation of the gold bars, and foreign currency, and further ordered the confiscation of the car with an option to get the same redeemed on payment of redemption fine of Rs. 30,000/- and further imposed personal penalty of Rs. 5 lakh on the appellant.
3. The learned Counsel has contended that there is no reliable evidence on the record to prove the very recovery of the gold bars and foreign currency from the possession of the appellant and that the impugned order has been passed only on inadmissible, inadequate and inconclusive evidence. The alleged confessional statement, according to the learned Counsel, was procured from the appellant after giving beating and the same was even retracted by him on the very next date before the Court where he was produced by the DRI Officers and as such the same could not be used against him. The impugned order, according to the learned Counsel, deserves to be set aside.
4. On the other hand, the learned JDR, has reiterated the correctness of the impugned order.
5. I have heard both sides and gone through the record. The bare perusal of the impugned order itself shows that the appellant was allegedly intercepted outside the premises of the Embassy of DPR Korea in the area of Greater Kailash-I, which is a public place when he came out of that Embassy carrying one packet wrapped in the newspaper in his hand. No personal search of the appellant at that time was taken by the DRI Officers, although two independent witnesses, namely, S/Sh Shishu Pal Singh and Manwar Singh Rawat were with them, as they brought them while starting from their Office. No search of the car of the appellant was also carried out at that place. No plausible explanation has been offered by Shri A.K. Prashad, who allegedly intercepted the appellant for not so doing. The explanation offered by him that the said place was not suitable for taking personal search as well as the search of the car of the appellant, does not appeal to the reasons at all. He has failed to explain in his cross-examination as to how and in what manner that place located in the Greater Kailash-I was not suitable and what were the circumstances which forced him not to take the personal search of the appellant when he was carrying one packed wrapped in a newspaper in his hand while coming out of the Embassy.
6. We find that instead of taking search of the person and the car of the appellant at the spot, Shri A.K. Prashad, IO, brought the appellant to the Office of the DRI at I.P. Estate and there the packet was picked up from the rear seat of the car. It was then opened and allegedly found to contain 40 gold bars of 10 tola each. Even at that place, no seizure memo was prepared and the appellant was then taken to 7th floor of the building where the Office of DRI was located and Panchnama was prepared there. No explanation has been offered by Shri A.K. Prashad as to why this was done and why the Panchnama was not prepared on the ground floor where the alleged packet containing 40 gold bars was taken out from the rear seat of the car of the appellant.
7. Similarly, the personal search of the appellant was not taken at the place where he was firstly apprehended in Greater Kailash-I, nor even on the ground floor where packet was taken out from the rear seat of his car. His search was only taken on the 7th floor where DRI Office was located, resulting in the alleged recovery of driving licence and US $ and French Franc. No explanation has been even offered by Shri A.K. Prashad for so doing.
8. Since neither the search of the person nor of the car of the appellant was carried out at the spot i.e. near the Embassy of the DPR Korea in Greater Kailash-I, where he was intercepted, without sufficient cause, this circumstances itself is enough to render the alleged recovery of the gold bars and foreign currency from him highly improbable, doubtful and illegal, especially when he had denied the recovery of any gold bars or foreign currency from him or from his car. No person even from that place was associated and no document whatsoever was prepared at that place indicating the very apprehension of the appellant at that place along with a car. For conducting search, that place was rather the best suitable place as independent/public persons were available in number there and nobody could doubt the genuineness and correctness of the Panchnama if it had been prepared there. This vital lapse on the part of Shri A.K. Prashad, IO, who was heading the DRI party at that time, makes his very conduct highly doubtful in this case and as such no credence could be attached to the Panchnama prepared by him reflecting the recovery of gold bars and foreign currency from the appellant. He prepared this Panchnama in the Office located on the 7th floor of the Drum Shape Building, I.P. Estate, and completed it at about 7 PM, although the appellant was allegedly apprehended at 2 PM.
9. Besides this, one attesting witness of the Panchnama, namely, Shri Manwar Singh Rawat has denied the recovery of the gold bars and foreign currency in his presence, from the appellant. He even cannot be said to be an independent person. He is an illeterate person who was working at the tea stall located opposite the Office of the DRI and used to take the tea to the Office of the DRI oftenly, as even conceded by him in his cross-examination. He has also stated that he was never taken along by the DRI Officers anywhere on that day, whereas according to Shri A.K. Prashad, this witness was with them when they went to Greater Kailash-I, to hold a picket there for apprehending the appellant. This witness in his cross-examination has stated that DRI Officers got signed some papers from him on different times/dates, and did not know what was written in those papers. He had even gone to the extent of stating that car of the appellant was never searched in his presence. It was only shown to him and the Officers told him that recovery has been effected from the car. His statement goes long way to falsify the entire case of the DRI. The other Panch witness, namely, Shri Shishu Pal Singh was not even produced for cross-examination and as such his alleged attestation of the Panchnama did not carry any value/weight for proving the charge against the appellant.
10. The alleged confessional statement of the appellant was recorded on 27-11-1998. He was summoned by Shri B.S. Bakshi, Officer in the Office of DRI on that very day, to appear before him at 7 PM, although he (appellant) was already with the DRI Officers and this Officer in that very Office. In his cross-examination, Shri B.S. Bakshi has stated that Panchnama was never prepared in his presence and that it was shown to him along with other documents only before recording the statement of the appellant. Regarding the recovery of the gold from the appellant, he had stated that a sealed packet was shown to him. But what was contained therein, had not been disclosed by him in his cross-examination. Similarly, regarding the recovery of foreign currency from the appellant, he has stated that it was never sealed. He has gone to the extent of disclosing that he acted only as per the direction of Asstt. Director. From his cross-examination, it is quite evident that he did not know anything and recorded the statement of the appellant as per the direction of the Asstt. Director and got the same signed from him. The appellant immediately on the next when he was produced before ACMM retracted that confessional statement by making an application in writing stating therein that it was never made by him, but was obtained by giving him beating. He was also got even medically examined under the orders of the Court from the doctor. Again on 8-12-1998, on the expiry of his judicial remand, he gave detailed facts and circumstances under which his statement was taken. He had denied from the very beginning, the recovery of any gold bars and foreign currency from his possession. According to him, the goods had been planted on him which were, in fact, allegedly recovered from RO of the Korean Embassy, who could not be arrested due to diplomatic restrictions. No recovery of any contraband/incriminating document was effected from his residence or the Kiriana Shop which he was running at that time. He had been, in fact, supply Kiriana goods to the employees of the Embassy which fact even does not stand rebutted on the record.
11. In view of the facts and circumstances and the evidence, referred to above, the retracted confessional statement of the appellant could not be taken as substantial piece of evidence without seeking corroboration from other reliable evidence before holding him guilty personally under Section 112(b) of the Act and confiscating his car under Section 115(2) of the Act. The impugned order of the Commissioner of Customs ordering confiscation of car of the appellant and imposing personal penalty on him, as detailed therein, cannot be sustained and is set aside. The appeal of the appellant is allowed with consequential relief permissible under the law.