1987 (7) TMI 303 - AT - Customs

Tribunal upholds gold seizure based on panchnama, deems applicant's statement voluntary

The Tribunal upheld the seizure of gold based on the panchnama and presence of panchas during the search, deeming it valid evidence despite lack of panch ... Admissibility of panchnama as evidence of seizure - Voluntariness of statement recorded under Section 108 of the Customs Act - Confession and guilty knowledge as basis for penalty under Section 74 of the Gold (Control) Act - Reference under Section 82B of the Gold (Control) ActAdmissibility of panchnama as evidence of seizure - Whether the evidentiary value of the panchnama, when panchas did not support it, constituted a question of law fit for reference under Section 82B. - HELD THAT: - The Tribunal held that the contention that the panchnama was not supported by the panchas was not raised before the Tribunal at the hearing of the appeal and therefore did not arise out of the Tribunal's order for referral. The bench further explained that a panchnama only evidences the fact of seizure and is not substantive evidence of the statements contained therein; it may only corroborate or contradict the panchas in whose presence the seizure was effected. The Tribunal did not rely on the panchnama as substantive proof but only as evidence of seizure, and accordingly the point did not present a question of law warranting reference to the High Court. [Paras 4, 6]Application seeking reference on this point rejected as not raising a question of law and not arising from the Tribunal's order.Voluntariness of statement recorded under Section 108 of the Customs Act - Admissibility of statement recorded by Gazetted officer - Whether the applicant's statement recorded under Section 108, alleged to have been obtained under duress, was a question of law fit for reference. - HELD THAT: - The Tribunal considered the allegation of beating and duress but found no evidence to support it; the adjudicating authority's record showed the statement was recorded by a Gazetted officer who certified that it was read over and signed after understanding. The bench relied on established authority that such a statement is admissible. Because the matter turned on appreciation of evidence and no contention was shown that the Tribunal's factual appreciation was perverse or omitted material evidence, the voluntariness issue was held to be a question of fact, not a question of law suitable for reference under Section 82B. [Paras 4, 7, 8]Reference on voluntariness refused; the matter is one of fact and the statement was admissible under the circumstances recorded.Confession and guilty knowledge as basis for penalty under Section 74 of the Gold (Control) Act - Whether the applicant's statement amounted to a confession of knowledge justifying the penalty under Section 74, and whether that raised a question of law for reference. - HELD THAT: - The Tribunal found there was no factual confession as the applicant and other occupants denied the presence of contraband and the discovery resulted from departmental efforts locating a concealed cavity. The bench observed the applicant's statement referred to metallic yarn which was not found. The imposition of penalty was not based solely on that statement but on the entirety of evidence; accordingly the contention that the statement was a confession was a matter of appreciation of evidence, not a question of law. [Paras 4, 9, 10, 11]Reference on this point declined; the statement was not a confession and penalty was upheld on overall evidence, making the matter one of fact.Final Conclusion: The reference application under Section 82B is rejected in toto: none of the three points raised constitute questions of law arising out of the Tribunal's order-each turns on appreciation of evidence or was not argued before the Tribunal-and therefore no referral to the High Court is warranted. Issues:1. Acceptance of evidence of seizure of gold when panchas did not support the panchnama.2. Treatment of applicant's statement recorded under duress as voluntary.3. Treatment of applicant's statement regarding metallic yarn as a confession justifying penalty under Gold (Control) Act.Analysis:Issue 1:The applicant sought clarification on whether the evidence of seizure of gold, as per the panchnama, can be accepted when the panchas did not support it. The applicant's representative argued that the panch witnesses did not corroborate the seizure of gold bars during the search of the car. However, the Collector contended that this was a matter of evidence appreciation, not a legal question. The Tribunal upheld the seizure based on the panchanama and the presence of panchas during the search, concluding that the panchnama was valid evidence of the seizure. The Tribunal found no legal grounds to refer this issue to the High Court.Issue 2:The second issue raised was whether the applicant's statement, obtained under duress, could be considered voluntary. The applicant alleged that the statement was coerced after being detained and beaten by Customs officers. The Tribunal examined this claim and found no evidence supporting the coercion allegation. The statement was recorded by a Gazetted officer under Section 108 of the Customs Act, making it admissible as evidence. The Tribunal cited a Supreme Court judgment to support the admissibility of such statements. Consequently, the Tribunal ruled that this issue did not warrant a legal reference to the High Court.Issue 3:The final issue concerned the treatment of the applicant's statement regarding metallic yarn as a confession justifying a penalty under the Gold (Control) Act. The Tribunal clarified that the applicant's statement did not amount to a confession, as he denied knowledge of the hidden gold bars. The imposition of the penalty was based on the overall evidence presented, not solely on the applicant's statement. The Tribunal determined that this issue did not raise a legal question but was a matter of evidence evaluation. Therefore, it was deemed unnecessary to refer this issue to the High Court.In a separate judgment by Member K. Gopal Hegde, it was emphasized that the application attempted to convert factual issues into legal ones to challenge the Tribunal's order. The judgment highlighted that the panchnama was used solely to evidence the seizure of gold bars, not as substantive evidence. The voluntary nature of the applicant's statement was also addressed, with the Tribunal finding no basis for coercion. Additionally, the Tribunal clarified that the applicant's statement was not treated as a confession, and the penalty was imposed based on a comprehensive assessment of all evidence. Consequently, the application was rejected based on the lack of legal grounds for reference to the High Court.