TaxTMI 
TaxTMI 
TaxTMI 
2022 (4) TMI 85
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....accompanied by a girl child, were found waiting in the car park area along with their baggage outside airport, who were called back to the arrival hall; that thereupon, documents were verified; that upon questioning as to whether they were carrying any gold or other dutiable items, they answered in the negative; that one of the passengers namely Mrs. Arifa Haris stated that her husband was still in the arrival hall; that even the ladies were taken to the arrival hall where they were informed about the intelligence received regarding they carrying/smuggling gold bars; that a personal search was conducted which revealed that a black coloured jacket, worn by both the ladies, contained pouches where gold bars were hidden/wrapped in white packing tapes; that Mrs. Arifa is said to have stated that she had carried a 42" LG brand Television, which was handed over to an officer, who was wearing khaki uniform, after customs clearance; that the same was identified to have been brought from Dubai by her husband Mr. Haris Abdul Rahman, the co-passenger; and that they had not declared any import upon arrival at Cochin airport; that it was alleged that ten gold bars were recovered from each of th....
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..... Faiz was intercepted at the Indira Gandhi International Airport, New Delhi on 22.09.2013 while he was about to depart to Dubai by Emirates flight. His statement was also recorded under Section 108 ibid on the same date. Statement of one Mr. Naushad Ali was also recorded on 24.09.2013, apart from the statements of Mrs. Ayesha, Mr. C Madhavan, Deputy Commissioner of Customs on 03.10.2013, statements of Mr. Anil Kumar, Assistant Commissioner of Customs, Mr. M. Shanavas, owner of Ashida jewellery on 03.10.2013, statement of Mr. Abdul Rahim K.K. on 21.10.2013, and statements of Mr. Abdul Latheef and his wife Mrs. Hajira Koodakkara on 18.11.2013. 6. Based on the above investigation and statements recorded, it has been alleged by the Department that Mrs. Arifa Haris, Mrs. Asifa Veerappoyil and Mr. Haris Abdul Rahman have stated that the gold bars were handed over to them repeatedly by Mr. T.K. Faiz; that even the tickets for their travel were arranged by him and that he also arranged specially stitched jackets for the two of them. It is the further case that the three passengers had jointly schemed to smuggle 20 kgs of gold into India; that the above three passengers had failed to sati....
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....not be imposed and duty equivalent to the value of the gold smuggled on earlier occasions should not be demanded under Section 28(4) ibid. 11. Mrs. Asifa Veerappoyil was called upon to show cause as to why the 10 kg gold bars should not be confiscated, penalty under Sections 112(a), 112(b) and 114AA ibid. should not be imposed and duty equivalent to the gold smuggled on earlier occasions should not be demanded under Section 28(4), apart from penalty under Section 114A ibid. 12. Mr. Haris Abdul Rahman was called upon to show cause as to why the Television should not be confiscated under Sections 111(j), 111(l) and 111(m) ibid. apart from penalty under Sections 112(a), (b) and 114AA ibid. 13. Mr. Shanavas was directed to show cause as to why 6 pieces of gold seized from his shop not be confiscated under Sections 111(d) and 111(j) ibid. apart from confiscation of Rs. 3,42,700/- cash seized from M/s. Ashida Jewellery and penalty under section 112(a) and 112(b) ibid. should not be imposed. 14. Mrs. Hazira Koodakkara and Mr. Abdul Latheef were show-caused as to why the BMW car bearing registration number KL-58B-5 should not be confiscated under Section 115(2) ibid. and penalty under ....
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....lose relationship between Mr. Faiz and Mr. Abdul Latheef, the usage of car by Mr. Faiz could only be considered to have been done with the knowledge of Mrs. Hajira. Hence, the same was held liable for confiscation, as proposed in the show Cause Notice. (iv) Regarding confiscation of 36 kg of foreign mark gold bars, the Adjudicating Authority has observed that none of the allegations against the three passengers have been repudiated; retraction was made later and the same would not invalidate their earlier statements made under Section 108 ibid. He has thus concluded that 36 kg gold had been smuggled through Cochin International Airport on three occasions, but the same were not available for confiscation and hence, he holds the two lady passengers liable to pay duty on the same under Section 28(4) ibid. 18. Mr. C. Madhavan and Mr. Anil Kumar, Officers, have been exonerated for want of evidence. PENALTIES 19. Mr. P. P. Sunil Kumar - Appeal No. C/21533/2015 19.1. This appellant was alleged to be the Preventive Officer of Cochin Customs House and working in the Cochin International Airport. Allegation against him is that he had made arrangements for unhindered exit of passengers ....
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....ed that this appellant was involved in transporting the smuggled gold which was liable for confiscation under Section 111(a), which rendered him liable for imposition of penalty under Sections 112(a) and 112(b) ibid. 22. Mr. Ashraf Kallungal - Appeal No. C/21636/2015 22.1 Primary allegation against this appellant is that he is the person who financed the smuggling activities. The impugned Order-in-Original reveals the involvement of this appellant, but only through statements and apparently, the Revenue has no material piece of evidence as regards the involvement and exact role of this appellant in the alleged smuggling activity. This appellant had, in fact, questioned the very jurisdiction of the Commissioner in adjudicating the issue. The Commissioner, however, in the impugned order has held that the challenge to his jurisdiction as well as other objections were not sustainable. The Commissioner has thus concluded that this appellant had financed the smuggling operation, ordered and purchased gold bars, collected and sold them for a profit. This activity was held to amount to smuggling of gold which was liable for confiscation under Section 111 ibid. Therefore, this appellant w....
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....e for allowing Mr. Faiz to retain and use her BMW car [Registration No. KL-58-B-5] and that the use of the car by Mr. Faiz was within the knowledge of this lady, which thus rendered the said vehicle liable for confiscation under Section 115(2) ibid. 25.2 But however, the investigation did not bring any evidence to suggest the involvement of this appellant in the smuggling of gold or transportation thereof. Hence, the proposal for imposition of penalty on Mrs. Hajira was dropped. 26. Mrs. Arifa Haris 26.1 Customs duty was not paid by her on the previous occasions (based only on her visits as per visa entry in her passport) on account of deliberate mis-declaration of contents of a baggage by this lady and hence, she is liable for penalty under Section 114A ibid. 26.2 Her action in attempting smuggling of gold has rendered her liable for penalty under Section 112(a) ibid. 26.3 Her action in deliberately mis-declaring the contents of a baggage on 27.08.2013, 12.09.2013 and 19.09.2013 renders her liable for penalty under Section 114AA ibid. 26.4 Hence, based on above it was concluded that Mrs. Arifa Haris was liable for penalty under Sections 112(a), 114A and 114AA ibid. 27. Mrs.....
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....lled upon as to why penalty under Sections 112(a) and (b) ibid. should not be imposed on the ground that he had accompanied Mrs. Asifa during her journey from Dubai to Kochi on 20.08.2013. The Commissioner in the impugned order has, after considering the statements of various other persons, held that by his actions, he had abetted in smuggling gold which was liable for confiscation and consequently, liable for penalty under Section 112(b) ibid. 32. Mr. C. Madhavan, Dy. Commissioner (Retd.) 32.1 Allegations against him in the Show Cause Notice were that he had maintained close acquaintance with Mr. Faiz and that he had facilitated unhindered clearance of passengers who are smuggling gold, for which he was gifted with 42" television set, apart from cash of Rs. 4 lakhs. He also has filed a detailed reply countering the allegations levelled against him, but the Commissioner, however, has held that neither Mr. Faiz nor Mr. Sunil Kumar have stated about the direct involvement of this noticee in the unhindered clearance of the passengers, except one statement of Mr. Faiz dated 22.09.2013 wherein Mr. Faiz was said to have been introduced by this noticee to Mr. Sunil Kumar. In the same br....
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....sofar as the relief extended by the Adjudicating authority to some of the notices and two officers is concerned, however, it seems that the revenue has accepted the same since there is no appeal filed by them. 35. Heard Mr. B. Kumar, Learned Senior Advocate, and Mr. M.S. Sajeev Kumar, Mr. Mohammed Zahir, Mr. Swakenar, Mr. B. Satish Sundar and Mr. K.A. Sharafuddeen, Learned Advocates for the appellants. 35.1. The contentions of the Ld. counsel for the appellants, inter alia, are multi-fold, that the penalties in question have been levied only based on the uncorroborated statements recorded under Section 108 ibid. and that there is no other documentary evidence brought on record by the Revenue in support. They would inter alia urge that the no opportunity to cross-examination was given to any of the appellants despite their repeated requests since statements relied upon by the Revenue are inconsistent, by virtue of which alone they are unreliable being uncorroborated; that the copy of the photographs shown to some of the persons are so smudged and beyond recognition that the identity based on such photographs was impossible; that what was expected under law was an identification pa....
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....o safeguard the interest of officials who knew him very well. 35.4. It was further contended, without prejudice, that even the amount of penalty levied is also huge and disproportionate and the same is levied without clarifying who the actual importer was. It was seriously urged that when the revenue seized the letter under mahazar from Haris by M/s. A.U. Jewellery indicating that Haris had purchased the gold bars, why no further investigation was done so as to identify the buyer or the importer, but nothing was placed on record. They have vehemently contended that when revenue had so many leads, there should have been a fair and proper investigation into such a serious matter which would have brought actual facts on record and the culprits as well, but instead the OIO has simply relied on inconsistent and contradictory statements to penalise the appellants and that there is not even a single independent witness who has been examined by the revenue. 36. Per contra, Mr. P. Gopa Kumar, Learned Additional Commissioner(AR) and Mr. P.R. Holla, Learned Superintendent(AR), argued for the Revenue. 37. Revenue's arguments: (i) Mr. Umesh Raju, Operations Manager vide his statement has i....
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....m airport on 20.8.2013 in a big black car when she came with Suhail. (xvi) In his statement dated 11.10.2013, Faiz has stated that gold was collected by his brother Faizal on 2 occasions, which was not retracted. (xvii) Investigation has brought on record submissions of various persons, well corroborated by certified photographs and other independent material like hotel records to establish presence of Ashraf in India during that time. 38. We have considered the rival contentions and gone through the documents placed on record meticulously. We have also gone through the decisions/orders of various courts relied on during the hearing. Neither the seizure has been challenged in these appeals nor any of the passengers from whom gold was seized have filed any appeals. The appellants in these appeals are those against whom penalty under Ss. 112(a)/112(b)/114A/114AA have been imposed. The issue before us therefore, is the challenge to levy of above penalties. In the impugned order, at page No.149, the Commissioner has summarised the penalties on various notices; insofar as Shri Ashruf Kullangal [appellant No.(iv)] and Shri T.K. Faiz [appellant No. (vi)], penalty has been imposed und....
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....visitors. But we have examined and found that those statements are also inconsistent and hence reduced to be unreliable, and therefore, their evidentiary value would have to be very carefully examined before counting on them. Admittedly there are no independent eye witnesses who have been examined, nor any documentary evidence placed on record to corroborate statements recorded under Section 108 ibid. One piece of valid document was a letter by A.U. Jewellery which though seized under a mahazar, but nothing more is brought on record and seriously, we do not understand the purpose of its seizure. When a statement of one person implicates another, then it is most rudimentary that such another person should get a chance to cross examine the person who has stated against him, which, even the principles of natural justice also demand. So, such un-corroborated statement of one cannot become a conclusive proof to crucify another, without following the process of law. This becomes rather a necessity when only statements, that too which are inconsistent, are relied upon, like in the case on hand. Such statements therefore, could at best be a lead, requiring further investigation, by the co....
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....The same was to be smuggled into India to be given to her husband's friend in India and they also had carried a TV set which was given to a person in khaki uniform. Second statement was recorded on 30.09.2013 wherein she has stated that the gold bars were handed over to them by a bald man whose photograph was shown to her and whose name was told by her husband as 'Faiz'; that she also identified Mr. Abdulla from the photograph shown to her and also identified two other persons whose photographs were shown, who were identified by her as Thangal Rahim and Jaleel. She however failed to identify the photograph of Mr. Suhail, but identified the person in the other photograph shown to her as the one who received them twice at the airport and took them to Hotel Excellency. Identity of only Faiz is highlighted while that of Rahim and Jaleel is not spoken about. Though the statements of Mr. Rahim and his brother Mr. Nushad were recorded, as contended by the learned Counsel, but they were not put to notice, for reasons best known to department. 42.2. Mrs. Asifa : It is recorded in her first statement dated 19.09.2013 that her husband Mr. Abdulla was also engaged as a tour guide in a desert ....
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....ompany his wife as he did not get permission to travel to India, he requested Suhail to accompany her to India as she was pregnant and that upon arrival, her cousin would pick her up; that at the Cochin airport, the lady told him that her cousin had not come, but a friend of her cousin had come whom she didn't trust (she identifies this person who had come there); that thereafter, the lady requested him to accompany her to her house or hotel and thus both of them went to hotel where, the same person - friend of her cousin - came to their room to pick her up which was objected to by the hotel security; that he left her there and stayed in another hotel and later on he came to know that her cousin had picked her up and that he was unaware of her visit to Kerala. So, if Mr. Ashraf is the person who picked them up from airport, then Suhail would have definitely identified him whom Mrs. Asifa referred as her cousin's friend who had come to pick her up from airport and from hotel also, as per Suhail. 42.4. The stark contrast between statements of Mrs. Asifa and Mr. Suhail do not require a lens-eye: first of all, Mr. Suhail doesn't even know what Mrs. Asifa was up to, he does not even id....
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....recorded that they were apprehended at the Cochin airport upon arrival wherein, gold bars were recovered from the personal search of his wife and Mrs. Asifa, a letter from M/s. A.U. Jewellery, UAE, from him regarding purchase of 20 Kgs gold; that it was Mr. Abdulla who had tempted him with the offer of Dirham 1000 per kg of gold smuggled into India; that on 27.08.2013, he had managed with his wife to smuggle 8 kgs of gold bars which was handed over to the recipients in Hotel Excellency; that they repeated on 12.09.2013 with both the ladies carrying 8 kgs of gold bars and waited outside the airport in the car park area as instructed by Mr. Faiz; that 2 persons came there and took them to Hotel Excellency where they handed over 16 kgs of gold bars to those persons who received them at the airport and returned to Dubai the very next day. They all came again on 19.09.2013, when the gold bars were seized. It is recorded that his further statement dated 30.09.2013 didn't yield anything to the Revenue. 43.2. This so-called carrier also didn't reveal anything about the involvement of any other person/s but specifically implicates Mr. Faiz as the person who had handed over the gold bars to....
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....i on his cell number; that Mr. Faiz informed him over phone that the television was being sent through Mr. Haris and family; that he had requested Mr. Sunil Kumar to facilitate their immigration clearance; that he in turn instructed Jaison, a contingent staff at the airport to help the passengers; that he was on leave from 14th September to 19th September, 2013; that he was not present at the airport on the eventful day; that he came to the airport upon being called by the investigating team wherein he came to know of the seizure of 20 kgs of gold from the passengers; that he was not aware about them carrying gold with them; that Mr. Faiz was introduced to him by Mr. C. Madhavan, Deputy Commissioner of Customs; that he did not remember to have cleared Mr. Faiz earlier; that he did not know whether the passengers had smuggled gold on earlier occasions and that he had done the facilitation only for friendship and not for any consideration. 45.2. In the impugned order Commissioner has extracted Mr. Sunil Kumar's reply to the Show Cause Notice wherein said Sunil Kumar has categorically denied the allegations made against him. It is mentioned that he was posted as Air Customs officer a....
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....ek reasons behind such frequent visits (treatment for his son, as informed by Mr. Madhavan ignored); that while it was admitted that Mr. Faiz was introduced by Mr. Madhavan, but Mr. Madhavan and Mr. Anil Kumar had only instructed for giving clearance to Mr. Faiz alone, giving fast clearance for the three passengers who were the gold carriers was never directed by any of the officers. We have to observe here that the duty register should have thrown some light on whether Sunil Kumar was on duty on that day as indicated in the OIO. 45.3. The fundamental question that again bothers us, is that when the same circumstantial evidence in the form of statements is held sufficient to penalise some, the same evidence in the form of statements is assumed insufficient, to exonerate some. The person whom everyone is talking about as having requested for a TV set walks free and there is no Show Cause Notice issued to him seeking his explanation; the person against whom CBI has filed a report for accepting cash is absolved for want of evidence and the person who accepts a 'costly gift' of cash termed as 'loan' from an alleged master mind is also freed. But the person who is said to have requeste....
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....smuggling activities. From the records as well as the impugned order, we do not see any investigation or any allegation about any investigation by the CBI against this appellant. 45.6. For the above reasons we are satisfied that the penalty levied on Mr. Sunil Kumar is unsustainable and therefore, the impugned order levying penalty under Section 112(a) ibid. is set aside and appeal is allowed to this extent. 46.1. Mr. M. Shanavas - Proprietor of M/s. Ashida Jewellery: A search was conducted on 03.10.2013 wherein, 6 pieces of gold weighing 1402.200 grams of gold was recovered, apart from cash of Rs. 3,42,700/-; an invoice for purchase of a weighing machine, a non-taxable purchase bill for Rs. 10,09,492.14/-, for 677.330 grams issued by Suman's Bombay Jewellers (Kerala) to Smt. Shabna and photocopy of a/c payee cheque issued in the name of Smt. Shabna T.M by Suman's Bombay Jewellers (Kerala) were found and seized from his shop. With this background, he was suddenly asked about seizure of 20 kg gold on 19.09.2013, to which it is recorded that he had made several dealings in 1 kg gold bars with Mr. Ashraf and that he didn't have any documents or accounts in respect of the 1402.200 gr....
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.... evidence on record to suggest that the cash seized was from smuggled goods and hence the same was ordered to be released. The requirements of Section 112(b) of the Customs Act, 1962 is acquiring the possession of or in any way concerned in carrying, removing, etc., or in any other manner dealing with any goods which are liable to confiscation under Section 111 ibid. Insofar as this appellant is concerned, the Adjudicating Authority has himself satisfied that the allegations levelled against him by the investigation team as well as in the Show Cause Notice has not proved this appellant as acquiring possession or disposing of, in any manner, as prescribed under Section 112(b) ibid. and therefore, has ordered the release of both the gold and cash seized from his shop. By this finding, not only the case against Mr. Shanavas has become week, but also weekend the revenue's case against some of the other appellant, like Ashraff and Subair, since revenue had alleged that the gold bars smuggled on the earlier dates were sold to Mr. Shanavas. By this it is clear to us that Mr. Shanavas did not acquire or deal with in manner, for disposal, etc. of any goods that was liable for confiscation.....
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.... COFEPOSA but released later; but it is irrelevant insofar as the penalty under Section 112(b) ibid. is concerned. It is noted that even in the Show Cause Notice, the relevancy of detention under COFEPOSA vis-à-vis the alleged smuggling activities of 36 kgs gold bars is not highlighted. Moreover, when the person who ascribed a role is himself absolved and even the gold and cash seized from him were ordered to be released as having nothing to do with the earlier smuggling, penalty cannot be sustained on this appellant because he is not alleged to be involved in possessing or carrying out any of the activities that ultimately resulted in confiscation. It is the settled position of law that allegations how-so-ever strong or strongly worded, cannot take the place of proof, and hence, we are the opinion that the order levying penalty on Mr. Subair Kallungal cannot sustain since the same is without any basis, The penalty and the impugned order are therefore set aside. The appeal to this extent is allowed. 47.3. Mere statement against this appellant, alleged to be that of Mr. M. Shanavas is not sufficient to sustain for penalty on this appellant. 48.1. Mr. Ashraf Kallungal: The r....
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....hraf that he mentioned the name of Rahim in his earlier statement; that he even identified the photograph of Mr. Ashraf which was shown to him; that the smuggled gold was collected from the airport either by Mr. Ashraf or his men and that it was Mr. Ashraf who ordered, purchased and sold the smuggled gold. 48.4. No explanation is recorded as having been offered by Mr. Faiz, as to why he was changing his version or what made him to change. But the other thing that still remains, is the significance of identity of the photographs, of Rahim first and then that of Mr. Ashraf, by Faiz. When retracted statements offered are being rejected as an after-thought, then none of his statements holds any significance. This assumes importance because, in his later statement, Mr. Faiz has only talked about implicating Mr. Ashraf and exonerating Rahim and this has been believed as gospel truth by the Revenue, the reasons for which are not spelt out for convenience, nor do we see any corroborative evidence as well, like the passport/visa stamping, call records, etc. and nor does the story of exculpating Rahim appears voluntary or justifiable since other than exculpating Mr. Rahim, no other fact or ....
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....rt out the problems consequent to seizure of 20 kg gold on 19.09.2013 and that he didn't know Mrs. Asifa, Mrs. Arifa, Mr. Haris, Mr. Abdulla, Mr. Faizal or Mr. Subair. First of all, the revenue has not explained why he was introduced at a later stage, without putting him on SCN despite his name and role specified by some of the co-noticees. There is also no explanation as to what was his interest in 'voluntarily' appearing before the authorities, just to give statements. Now the contradictions are that in his first statement, Faiz says that it was Abdulla and Thangal Rahim who lured him into the business of smuggling, with an offer to join their business; and now Rahim says that Mr. Faiz offered a share in his hotel business. 48.7. If this is to be accepted, then the statement of Mr. Faiz that Mr. Abdulla introduced this person to him may not be correct because, Mr. Rahim has pleaded that he didn't even know Mr. Abdulla. 48.8. In his second statement recorded on 23.10.2013, (Thangal Rahim is said to have met this appellant at Hotel Citadel) he is said to have deposed that it was Mr. Ashraf and Mr. Faiz who had planned, funded and operated the smuggling of gold through Nedumbasser....
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....of coming to a conclusion on the basis of half-baked unreliable evidences, there too, in the form of statements. We are reminded of an adage that "a blind man searching for a black cat in a dark room, which is not there". Though we have sympathy, but yet the requirement of law is paramount, the evidences in the form of inconsistent statements alone are not sufficient to levy penalty on appellants. Consequently, it is held that there are no sufficient evidences to implicate this appellant and to sustain the impugned penalty. Impugned order is set aside and the appeal is allowed. 48.11. The corroborative statement against this appellant, alleged to be that of Mr. M. Shanavas, cannot be held to be sufficient, to penalise this appellant, for the same reasons given earlier in this order. 49.1. Mr. T.K. Faizal: From the allegations levelled against this person in the Show Cause Notice, we find that he is alleged to have transported the alleged gold carriers to the Hotel on 27.08.2013 and 12.09.2013, but the alleged gold smuggled on those dates was never found, to be confiscated under Section 111 ibid. Nobody has witnessed the loading or unloading of gold in the remotest form into the c....
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....of preponderance of probability is hall mark in evasion cases of taxation than proof beyond doubt there should be some evidence, document to support scope for such preponderance of probability. We find that no such record is available. It is reinforced by the fact that no evidence of any sort has been found during the search of the Appellant residence. It is also not clear whether investigation could reach of the actual importer. In such situation imposition of penalty on the Appellant without properly establishing his role is not acceptable. We find that the ratio of the cases submitted by the Appellant reinforce the same." The above ratio squarely applies here also in respect of all the above appellants and hence, to this extent, impugned order is set aside insofar as the same relates to these appellants, and consequently, the respective appeals allowed. 50.1. Mr. T.K. Faiz: In the impugned order, it is averred that this person played a major role in the smuggling of gold bars and hence, an alert was issued to the immigration authorities; that he was intercepted at Indira Gandhi International airport on 22.09.2013 while he was about to deport to Dubai by Emirates flight. His fi....
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....ed by him to ensure their unhindered Customs clearance; and that these allegations are based on the statements of Mrs. Asifa, Mr. Haris Abdul and Mrs. Arifa. It is also observed by the Commissioner that Mr. Faiz had made statements on three occasions and he is said to have stated about his interactions and contacts he had with the officials. This was also supported by a note forwarded by CBI wherein it was revealed that this Mr. Faiz had maintained regular contacts over the phone with these officers, to whom he had even gifted a television, treadmill and an Apple iPhone, apart from the cash of Rs. 5 lakhs to Mr. Anil Kumar and Rs. 2 lakhs to Mr. C. Madhavan. 51. Insofar as this appellant is concerned, no doubt one of the alleged gold carriers has identified this person as the one who handed over the gold bars to be smuggled into India, some of which (20 kgs) were ultimately confiscated. The only other corroboration available on record are the statements of the very officers of Customs who have allegedly accepted cash or kind offered by this appellant for facilitating smooth Customs clearance at the Cochin Airport. The fact that he handed over the gold bars at the Dubai Airport sta....
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....s that issuance and services of a show cause notice subserves the requirements of law only because by reason thereof an opportunity was afforded to the proceedee to submit its explanation. The Tribunal ought to have based its decision on applying the correct principles of law. ...... . The Tribunal on its independent examination of the factual matrix placed before it did not arrive at any finding that the confession being free from any threat, inducement or force could not attract the provisions of Section 24 of the Indian Evidence Act. .......". (Emphasised by us in bold) 52.3. In the case of Union of India Vs. Bal Mukund AIR 2009 SC (Supp) 1811, Apex court at paragraph 23 has observed as under: 23. We may notice that in State (NCT of Delhi) v. Navjot Sandhu Alias Afsan Guru [(2005) 11 SCC 600], this Court has laid down the law in the following terms: "..... 39. The crucial expression used in Section 30 is "the Court may take into consideration such confession" (emphasis supplied). These words imply that the confession of a co-accused cannot be elevated to the status of substantive evidence which can form the basis of conviction of the co- accused. The import of ....
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....part from the co-noticee, it cannot be used against the co-noticee." 53. Mr. Rahim has exculpated himself and inculpated Mr. Faiz and Mr. Ashraf as the main culprits, and hence by the application of the above decision, Mr. Rahim's statements cannot be considered at all to be used against those who are inculpated by him. 54. With regard to the preponderance of probability and the benefit of doubt, Hon'ble Apex court has held categorically that the test of the same must be satisfied by the accusing authority, irrespective of a criminal accusation or a civil, or even in respect of departmental enquiries, in the following cases: (1). M.V. Bijlani Vs. Union of India, (2006) 5 SCC 88, (2). Moni Shankar v.Union of India ((2008) 3 SCC 484 PART I), (3). M. Siddiq v. Suresh Das ((2020) 1 SCC 1 PART I. DECIDED ON 09.11.2019), a Constitution Bench of this Court has described thestandard of 'preponderance of probabilities' in the following terms: "720. The court in a civil trial applies a standard of proof governed by a preponderance of probabilities. This standard is also described sometimes as a balance of probability or the preponderance of the evidence. Phipson on Evidence formulates....