Customs confiscation and penalty fail where chemical analysis negates heroin and Section 108 statement alone is insufficient.

Confiscation of a car and personal penalty were found unsustainable where the alleged contraband, on chemical examination, was DDT and not heroin, and the only incriminating material was a statement recorded under Section 108 of the Customs Act. The Tribunal distinguished precedent relied on by the Customs Department because that case involved established smuggled gold, whereas the basic factual foundation of heroin smuggling was absent here. The appellant had also been discharged in the connected criminal case. On these facts, the earlier precedent was held inapplicable and the confiscation and penalty were set aside.

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Issues: Whether confiscation of the car and imposition of personal penalty were sustainable when the alleged contraband was found, on chemical examination, to be DDT and not heroin, and the only incriminating material was the appellant's statement under Section 108 of the Customs Act.

Analysis: The allegation against the appellant was that he had smuggled heroin in his car. The chemical examiner's report showed that the seized substance was DDT and not heroin, and the appellant had also been discharged in the connected criminal case. The Customs Department relied on the statement recorded under Section 108 of the Customs Act and on the proposition that such a statement can be used as evidence even if retracted. The Tribunal held that the relied-upon precedent concerned a case where the smuggled gold itself was established, whereas here the basic factual premise of smuggling heroin was not supported by the scientific report. On these facts, the earlier precedent was held inapplicable.

Conclusion: The confiscation and penalty were not sustainable and the appeal succeeded.

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