2024 (1) TMI 477 - HC - Customs

Delhi HC upholds customs penalty restoration order based on Section 108 statements and corroborating evidence

The Delhi HC dismissed a writ petition challenging a customs penalty restoration order. The petitioner had given incriminating statements under Section ... Restoration of penalty - revision application filed under Section 129-DD of the Customs Act - existence of evidence against the petitioner or not - HELD THAT:- It may be seen that the petitioner gave incriminating statements under Section 108 of the Customs Act admitting to the recovery of 7140 memory cards from the rack of the table, as also the recovery of 2360 memory cards from his laptop bag. He admitted that he did all this at the instance of one “Chacha”. In his further statement dated 28.01.2011, he recognized Rajdeep Chawla as the same person who gave him Hong Kong Duty Free Shop poly bag from which memory cards were recovered from the room of Wing Incharge, AFRRO, Arrival Office. It is a settled law that the statement recorded under Section 108 of the Customs Act is a material piece of evidence and can be used as substantive evidence. The statements recorded under Section 108 of the Customs Act in this case are consistent, the witnesses are supporting each other regarding the incident of recovery and such statements are further corroborated by the Panchnamas prepared at the spot which bear the signatures of the petitioner as also the Panch Witnesses. The High Court exercising power under the writ jurisdiction cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. This exercise must be restricted to grave dereliction of duty and flagrant abuse of fundamental principles of law and justice. The jurisdiction which the High Court exercises in the writs is neither original nor appealable. It is administrative and supervisory in nature. In the present writ petition, petitioner is assailing the impugned order passed in revision on the basis of appreciation of evidence only. The High Court while exercising the power under the writ jurisdiction cannot normally substitute its own conclusion. There are no patent illegality or error apparent on the face of the record - there is no merit in the present writ petition - petition dismissed. Issues Involved:1. Legality of the Order No. 35/2015-CUS dated 22.12.2015.2. Evidence against the petitioner.3. Corroboration of statements under Section 108 of the Customs Act.4. Legality of the penalty imposed under Section 112 of the Customs Act.5. Jurisdiction of the High Court under writ jurisdiction.Detailed Analysis:1. Legality of the Order No. 35/2015-CUS dated 22.12.2015:The petitioner challenged the order passed by the Joint Secretary to the Government of India, which restored the Order-in-Original dated 09.11.2012, imposing a penalty on the petitioner. The order was based on the revision application preferred by the Revenue against the order in appeal dated 31.7.2013, which had set aside the penalty.2. Evidence against the petitioner:The petitioner argued that the entire case lacked evidence, highlighting that no officer who tracked his movement was examined, no surveillance footage was presented, and no witnesses corroborated the petitioner's involvement. The petitioner's counsel emphasized the absence of corroborative evidence, asserting that the petitioner's statement was involuntary.3. Corroboration of statements under Section 108 of the Customs Act:The respondents argued that there was sufficient corroborative evidence, including voluntary statements made by the petitioner and other involved parties under Section 108 of the Customs Act, which were not retracted until after the arrest. The statements were supported by the Panchnamas prepared on the spot, detailing the recovery of memory cards and other items. The Joint Secretary noted that these statements were consistent and supported by the evidence on record.4. Legality of the penalty imposed under Section 112 of the Customs Act:The Government observed that the petitioner, an immigration officer, colluded with others to facilitate the smuggling of memory cards, thus contravening several provisions of the Customs Act and Foreign Trade Policy. The Joint Secretary relied on various judgments emphasizing the evidentiary value of statements recorded under Section 108 of the Customs Act, which can be used as substantive evidence. The penalty under Section 112 was deemed justified based on the evidence and the petitioner's actions.5. Jurisdiction of the High Court under writ jurisdiction:The High Court emphasized that its jurisdiction under writ is administrative and supervisory, not original or appealable. The court cannot substitute its conclusions for those of the lower authorities unless there is a grave dereliction of duty or flagrant abuse of law and justice. The court found no patent illegality or error apparent on the face of the record in the impugned order.Conclusion:The High Court dismissed the writ petition, finding no merit in the arguments presented by the petitioner. The court upheld the findings of the Joint Secretary, affirming the penalty imposed under Section 112 of the Customs Act, and concluded that the petitioner's guilt in colluding and abetting the smuggling of goods was clearly established.