1990 (2) TMI 181

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.... the department are that, acting on an information, the officers of the DPU, Barasat Customs Division, Calcutta, DRI Calcutta and Customs House, Calcutta had been to the residential and godown premises of Yusuf on 20-7-1988 at about 11-30 hrs. at G.14 Bangia Bustee P.O. Garden Reach, Calcutta-24. On the strength of search order No. 53/88 dated 20-7-1988 issued by the competent authority the officers searched the above-mentioned premises. At the material time Md. Yusuf was not present there. Md. Alamgir, son of Md. Yusuf honoured the search order. As a result of search in presence of Md. Alamgir and two independent witnesses synthetic fabrics of foreign origin were recovered. On demand by the officers, Md. Alamgir failed to show any evidence....

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....ore the Court of Ld. C.M.M., Calcutta. Accordingly, Md. Sahabuddin was summoned under Section 108 of the Customs Act, 1962 directing him to appear before the Supdt. (Prev.), Barasat Customs Division, Calcutta, on 18-8-1988. But he did not turn UP. 5. Md. Yusuf father of Md. Alamgir and Md. Sahabuddin were also summoned who appeared before the Supdt. (Preventive), Barasat Customs Divn., Calcutta on 18-8-1988. In his voluntary statement dated 18-8-1988 before the Supdt. (Prev.), Barasat Customs Division, Calcutta, Md. Yusuf stated, inter alia, that the residential premises from where 4590 metres of smuggled synthetic fabrics were recovered belongs to him. He also stated that as he has become aged, he has handed over him business dealings (cl....

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....nce the appellant gave a statement as required by the department and no reliance can be placed on the statement of the appellant. He further contended that the statement of the appellant was not taken on oath or affirmation. It was his contention that if Section 108 of the Customs Act is read along with Section 146A of Customs Act, 1962, it will become too clear that a statement under Section 108 should be taken either on oath or on affirmation, Therefore, he contended that in this case the statement not having taken on oath or affirmation cannot be relied upon. He further contended that admittedly the house belongs to the father of the appellant, Yusuf and the contraband goods are found in the house. Therefore, constructively the father of....

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....ment should be taken on oath or affirmation. Section 146A of the act reads that any person who is entitled or required to appear before an officer of the Customs or Appellate Tribunal in connection with any proceedings under the Act, otherwise than when required under Section 108 to attend personally for examination on oath or affirmation, may subject to the other provisions of this section, appear by an authorized representative. It is thus clear that Section 146A refers to a proceedings other than Section 108 of the Customs Act. Therefore, the oath or affirmation under Section 146A refers to that section alone and not to a statement made under Section 108 of the Customs Act. In such circumstances, we are unable to agree with the contenti....