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of <h1>Customs petition dismissed, Department meets burden of proof, confessional statements voluntary, seizure justified.</h1> <h3>Sailash Amulakh Jogani of Gujarat & Pankaj K. Jogani of Gujarat Versus Union of India</h3> Sailash Amulakh Jogani of Gujarat & Pankaj K. Jogani of Gujarat Versus Union of India - 2009 (241) E.L.T. 348 (Bom.) Issues Involved1. Burden of Proof2. Confessional Statements and Retractions3. Legitimacy of Seized Diamonds4. Role and Actions of Customs Authorities5. Judicial Review and InterferenceDetailed Analysis1. Burden of ProofThe petitioners argued that the burden of proving that the diamonds were smuggled lies with the Department, as the goods in question are not notified under Chapter IVA or Section 123 of the Customs Act, 1962. They contended that the Department must establish its case with a degree of probability that a prudent man may believe in the existence of the fact in issue, and that Sections 106 and 114 of the Evidence Act have no application here. The respondents, on the other hand, relied on the judgment in *Collector of Customs, Madras & Ors. v. D. Bhoormall*, arguing that the burden to establish facts relating to smuggling, which remain in the special knowledge of the person concerned in smuggling, is on him. The court held that while the burden of proving that the goods are smuggled lies on the Department, the special or peculiar knowledge of the person proceeded against alleviates this burden, requiring only very slight evidence to suffice.2. Confessional Statements and RetractionsThe petitioners claimed that their confessional statements were involuntary and obtained under duress, thus hit by Section 24 of the Indian Evidence Act. They argued that the initial burden of proving that the confession is voluntary is on the Department. The respondents countered by stating that the confessional statements were corroborated by other independent and cogent evidence. The court noted that the confessional statements were corroborated by the circumstances of the case and were voluntary in nature, dismissing the petitioners' retractions as an afterthought.3. Legitimacy of Seized DiamondsThe petitioners contended that they had provided documentary evidence to substantiate their claim that the diamonds were not smuggled, but the Department failed to verify these documents. The court found that the documents produced by the petitioners did not bear out their case and noted the significant delay in furnishing these documents, reflecting on their authenticity. The court also observed that the Department had released diamonds where proper documentation was provided, indicating their bona fides.4. Role and Actions of Customs AuthoritiesThe petitioners argued that the seizure of diamonds was illegal as the Customs officers did not have reasonable belief based on cogent material that the goods were smuggled. They also questioned the supervision of the recording of statements by the Superintendent. The court held that the Customs officers acted on overwhelming and strong attending circumstances that gave rise to a reasonable belief that the diamonds were smuggled. The court found no fault in the actions of the Customs authorities.5. Judicial Review and InterferenceThe court emphasized that the concurrent findings of fact by the Collector of Customs and the CEGAT should not be interfered with unless they are illegal, perverse, or contrary to rules of natural justice. The court referred to the Supreme Court's observation in *Bhoormall's case* that the function of weighing evidence and drawing inferences is the business of the Collector or the appellate authority, and interference is not warranted unless the appreciation of evidence is unassailable. The court found the appreciation of evidence by the Collector and the CEGAT to be unassailable and upheld their concurrent findings.ConclusionThe court dismissed the petition, upholding the orders of the Collector of Customs and the CEGAT. The court concluded that the Department had discharged its burden of proof, the confessional statements were voluntary and corroborated, and the seizure of diamonds was justified based on the evidence and circumstances presented.
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