1997 (4) TMI 203

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....er it was necessary on the part of the proper officer to proceed to inspect the premises and seize the vessel after observing the procedure contemplated under Section 105 of the Customs Act? (2) Whether in the facts and circumstances of the case, the seizure and confiscation of the vessel can be sustained purely based on the evidence of the statements of the co-accused in the case which are purely hearsay evidence? (3) Whether the finding of the Hon'ble Tribunal that the decision of the Hon'ble Supreme Court in the case reported at 1996 (83) E.L.T. 258 (S.C.) = 1996 (62) ECR 366 that statements given by co-accused under Section 108 of the Evidence Act and on the sole evidence of the co-accused, offence against the appellant ....

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....nce to prove that the vessel has been used in the smuggling activity? (7) Section 115 of the Customs Act contains two distinct propositions. (1) The vehicle is used in the smuggling. (2) The owner unaware of the smuggling. In a case where the first proposition is proved, the owner and the person in charge of the vessel has to prove their innocence. In the absence of any valid statutory provision in that behalf the onus of establishing that the vessel was used for smuggling is on the prosecution. Has that burden been discharged in the case? (8) The finding of the Tribunal that immediately after the seizure of the vessel both Gijo and Babu absconded is not true to facts. Both Gijo and Babu were not seen from....

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....s the vessel was held by the department and lying for the past 4 years exposed to the ravages of nature. 2. The learned Advocate, Shri M.D. Gangadharan stated that statements relied on are the statements of S/Shri Kunjumon and Suresh. He pointed out that the decision of the Hon'ble Supreme Court is not applicable as they are not co-accused. He pointed out that the statement should inculpate them as well as the others, then only they can be co-accused. Therefore, the decision is not applicable to the facts of this case. He, therefore, pointed out that merely on such statements no liability can be fastened on the appellants. Therefore, the question may be referred to the Hon'ble High Court. 3. The learned SDR pleaded that they....