2008 (4) TMI 622

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....V, three cameras, two pens, 13 watches, a calculator, currencies all believed to be of foreign origin and, primary gold, Indian currencies, a scooter of Indian origin and receptacles of valuables were seized for action under the Customs Act, 1962 (the Act) and the Gold Control Act, 1968 (GCA). The premises searched included the residence of Shri M.K.S. Abubacker and his associates gathered to be involved in smuggling and trading in contraband. Diamonds seized from the premises of Shri M.K.S. Abubacker were valued at Rs. 23,04,290/-, Indian currencies were of value Rs. 11,54,250/-, primary gold was estimated to be of value Rs. 8220/-, semiprecious stones of value Rs. 162/-, and various foreign currencies of value less than US $ 50. From Shri....

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....t origin/possession. This was not done. As per the initial statements, diamonds were smuggled goods. The Indian currencies were found to be sale proceeds of smuggled goods and liable for confiscation under Section 121 of the Act. Seized goods of foreign origin other than currencies, scooter & TV were found liable for confiscation under Section 111(d) read with Section 3(2) of the Import & Export (Control) Act 1947 and/or 111 (m)/or 111(p)/or 111(o) of the Act. The scooter and TV were confiscated under Section 119 of the Act finding them to have been used for conveying contraband. The primary gold was confiscated under Section 71 of GCA. A fine of Rs. 10000/- was ordered to be paid towards value of the scooter which had already been released....

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....er who had recorded the statement of Shri Mustafa deposed that he had not recorded the same but had only signed the same to that effect as instructed by his superior. Though the court disbelieved the evidence produced to establish that Shri Mustafa had received the diamonds of Indian origin from merchants of Mumbai and handed them over to Shri Abubacker, it allowed benefit of doubt as regards its origin. In view of the court's decision acquitting him we hold that Shri Kasim Mustafa did not abet smuggling of diamonds. The appeal filed by Shri. Kasim Mustafa is allowed. 3.1 As regards the other appellants the same grounds as advanced before the Commissioner and later before the ACMM's court are reiterated. Additionally it is submitted....

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....same was recorded in their own handwriting. It is seen that admittedly after recording of the statement of the accused they were produced before Magistrate. Except A.5 none of the accused had made any complaint to the Magistrate about the torture of the DRI officials and the allegation against the officials were raised only subsequently. Therefore obviously it was only an afterthought. So no weightage could be given to the argument of the counsel for the defence on this aspect." 4.1 In paragraph 57 the court concluded that it was "of the opinion that the statement given by the accused u/s 108 of the Customs Act is voluntary one and it was proved by prosecution beyond any reasonable doubt and it can form basis for conviction as far a....