TaxTMI 
TaxTMI 
TaxTMI 
2025 (8) TMI 342
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....t Kolkata (owner) and that he was working for him. Owner is his uncle. * gold is being smuggled into Kolkata in huge quantity from many foreign countries through Bangladesh and in order to conceal the identity the serial number engraved thereon is removed by scratching. * he had on several occasion in the past also carried gold from Kolkata and delivered the same to the persons in Kanpur as directed by the owner. * he never carried any bill/ invoice for the goods being carried by him for delivery in Kanpur. * he also was not in possession of any documents with regards to the purchase/ importation of the said gold being carried by him. 2.3 On the basis of the recovery of the gold from the appellant and his statement admitting carriage of the smuggled gold, appellant had committed an offence punishable under Section 135 of the Customs Act,1962. He was arrested on 23.02.2018 and produced before the Special CJM (Economic Offences) on same day. CJM remanded the appellant to judicial custody. 2.4 Searches were conducted at the premises of the owner, from where he was operating two firms namely M/s Umang Jwellers and M/s Sawar Mal Jwellers, both being his proprietorships concern....
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....ction 119 of the Customs Act, 1962. (iii) A penalty should not be imposed upon Shri Prithvi Raj Tosawar under Section 112 (b) of the Customs Act, 1962 for his involvement in the smuggling of foreign origin gold bars. (iv) A penalty should not be imposed upon Shri Ritesh Soni under Section 112 (b) of the Customs Act, 1962 for his involvement in the smuggling of foreign origin gold bars. 2.10 The show cause notice was adjudicated as per order in original dated 06.09.2019 holding as follows: ORDER (i) I order absolute confiscation of the seized 08 pcs foreign origin gold bars and 200 pcs of gold bangles manufactured out of the smuggled foreign origin gold bars, total weighing 11233.370 grams, valued at Rs.3,44,63,006/- (Three Crores Forty Four Lakhs Sixty Three Thousands and Six only), under Section 111(b) & (d) of the Customs Act, 1962; (ii) I order confiscation of two cloth belts (kamarband), especially designed for concealment of the gold bars and one trolley bag used for concealment of the gold ornaments manufactured from the gold bars brought from Bangladesh by way of smuggling under Section 119 of the Customs Act, 1962; (iii) I impose a penalty of Rs. 20,00,000/- (R....
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....bmissions are summarized as under: Appellant -1 (i) Condonation of delay in filing the appeal. (ii) Reduction in quantum of penalty. Appellant -2 ........ 6. I have gone through the case record. Nobody has claimed the ownership of the confiscated gold. Both the appellants have challenged the penalty imposed on them under section 112 of the said Act. 7. The impugned gold was recovered from Appellant-1 and he could not prove proper importation of the same. Under section 123 of the said Act, the burden to prove lawful importation of the impugned gold was on him. Therefore, imposition of penalty under section 112 of the said Act is sustainable. In the facts and circumstances of the case, particularly the value of the impugned gold which is about three and a half crore rupees, the quantum of penalty is also justified 8. However, the only ground for imposing penalty on Appellant-2 is statement of Appellant-1. There is no other corroboratory evidence to relate Appellant-2 to the impugned gold. The appellant argued before the adjudicating authority as well at this appellate stage that without cross-examination of Appellant-l in terms of section 138B of the said Act, his....
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....hat the recovered and seized impugned f/o gold weighing 11233.370 gm valued @ Rs.3,44,63,006/- has been smuggled into India from Bangladesh in contravention to the provisions of 7(1)(c), 11, and 46 of Customs Act,1962 read with Rule 3 of the foreign trade (development & regulation) Act,1992 and Rule 11 & 12 of the foreign trade (Regulation) rules,1993. Therefore, the recovered and seized impugned f/o gold weighing 11233.370 gm valued @ Rs.3,44,63,006/- is liable to confiscation under section 111(b) & 111(d) of the Customs act,1962. Since, there is no claimant of the said gold, no consideration under section 125 of the Customs Act, 1962 is required to be discussed. Thus, the said impugned gold confiscation under section 111(b) & 111(d) of the Customs act, 1962. is liable to absolute In view of above findings, two cloth belts (kamarband), designed especially for gold ornaments manufactured from the gold bars smuggled into India from concealment of the gold bars and one trolly bag used for concealment of the Bangladesh are also liable to confiscation u/s 119 of the Customs act, 1962. Since, the recovered and seized impugned f/o gold weighing 11233.370 gm valued @ Rs.3,44,63,006/-....
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....ope for any kind of manipulation & disclosure at this juncture by the Noticee no.2 ought to be admitted as truth, subject to corroborative circumstantial evidences found in the investigation followed. The details of both the shops of jewellaries, & existence of the named person i.e. Prithvi Raj Tosawar involved in the business of gold have been found correct. Disclosure of mobile no. 8017634160 was also found correct to the extent that the said mobile no. 8017634160 had ample conversations, time and again, with the mobile no.9874228622 of the Noticee no. 2. The Noticee No. 1 contests this on pretext of absence of details of the subscriber. In this regard, I find that it is not necessary that a man uses only a mobile no. subscribed to him and if anyone is indulged in any kind of unscrupulous activities, one will prefer a mobile no. issued in name of some other person to plead innocence on same excuse as is placed by the Noticee No. 1 in the instant case, especially because I find that the Noticee no. 1 has failed to reason as to why only his name is taken by the Noticee no. 1. It is significant to note that the Noticee No.1 has not denied using of mobile no. 8017634160, he has just ....
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....appellant to this effect in this appeal before the tribunal and at the time of hearing of appeal, is nothing but an afterthought and needs to be rejected. Thus the submission made by the appellant that his statement that 23.02.2018 was not voluntary lacks merit. 4.5 In case of K I Pavunny [1997 (90) E.L.T. 241 (S.C.)] following has been held: "19. Next question for consideration is : whether such statement can form the sole basis for conviction? It is seen that, admittedly, the appellant made his statement in his own hand-writing giving wealth of details running into five typed pages. Some of the details which found place in the statement were specially within his knowledge, viz., concealment of the 200 biscuits in his earlier rented house till he constructed the present house and shifted his residence and thereafter he brought to his house and concealed the same in his compound; and other details elaboration of which is not material. The question then is : whether it was influenced by threat of implicating his wife in the crime which is the sole basis for the claim that it was obtained by threat by PW-2 and PW-5? In that behalf, the High Court has held that it could not be cons....
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.... is true that in a trial and proprio vigore in a criminal trial, Courts are required to marshal the evidence. It is the duty of the prosecution to prove the case beyond reasonable doubt. The evidence may consist of direct evidence, confession or circumstantial evidence. In a criminal trial punishable under the provisions of the IPC, it is now well settled legal position that confession can form the sole basis for conviction. If it is retracted, it must first be tested whether confession is voluntary and truthful inculpating the accused in the commission of the crime. Confession is one of the species of admission dealt with under Sections 24 to 30 of the Evidence Act and Section 164 of the Code. It is an admission against the maker of it, unless its admissibility is excluded by some of those provisions. If a confession is proved by unimpeachable evidence and if it is of voluntary nature, it when retracted, is entitled to high degree of value as its maker is likely to face the consequences of confession by a statement affecting his life, liberty or property. Burden is on the accused to prove that the statement was obtained by threat, duress or promise like any other person as was hel....
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....arge of murder. The appellant was acquitted of an offence under Section 302 IPC but was convicted for the offence under Section 201 IPC for destroying the evidence of murder and sentenced him to seven years rigorous imprisonment. This decision was considered by a four-Judge Bench in Balbir Singh v. State of Punjab - AIR 1957 SC 216 wherein it was held that if there is independent evidence, besides the confession, the rule that the confession could be used only to corroborate the other evidences loses its efficacy. Therefore, it was held that if the retracted confession is believed to be voluntary and true, it may form the basis of a conviction but the rule of practice and prudence requires that it should be corroborated by independent evidence. Therein also, for the charges of capital offence, the trial Court did not accept the confessional statement of co-accused containing inculpatory and self-exculpatory statement. The High Court reversed the acquittal and convicted the accused, accepting that part of the confessional statement of the accused which was corroborated from other evidence. This Court upheld the conviction and held that it is not necessary that each item of fact or c....
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....ted. This Court upheld the conviction of the accused. 24. In Nishi Kant Jha v. The State of Bihar - 1969 (1) SCC 347, another Constitution Bench was to consider whether, when a part of the confessional statement is inculpatory and the other part exculpatory, the former point was admissible in evidence. It was held that the exculpatory part was inherently improbable and was contradicted by other evidence and was, therefore, unacceptable. The incriminating circumstances contained in the inculpatory part of the statement were accepted to confirm the conviction of the capital offence. The law laid down by a three-Judge Bench in Chandrakant Chimanlal Desai's case is not inconsistent with the above exposition of law. 25. It would thus be seen that there is no prohibition under the Evidence Act to rely upon the retracted confession to prove the prosecution case or to make the same basis for conviction of the accused. The practice and prudence require that the Court could examine the evidence adduced by the prosecution to find out whether there are any other facts and circumstances to corroborate the retracted confession. It is not necessary that there should be corroboration from ind....
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....dutiable goods and to facilitate detection and confiscation of smuggled goods into, or out of the country. The contraventions and offences under the Act are committed in an organised manner under absolute secrecy. They are white-collar crimes upsetting the economy of the country. Detection and confiscation of the smuggled goods are aimed to check the escapement and avoidance of customs duty and to prevent perpetration thereof. In an appropriate case when the authority thought it expedient to have the contraveners prosecuted under Section 135 etc., separate procedure of filing a complaint has been provided under the Act. By necessary implication, resort to the investigation under Chapter XII of the Code stands excluded unless during the course of the same transaction, the offences punishable under the IPC, like Section 120B etc., are involved. Generally, the evidence in support of the violation of the provisions of the Act consists in the statement given or recorded under Section 108, the recovery panchnama (mediator's report) and the oral evidence of the witnesses in proof of recovery and in connection therewith. This Court, therefore, in evaluating the evidence for proof of the of....
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....d its case beyond reasonable doubt, then the accused is entitled to the benefit of doubt for acquittal. The question then is : whether the learned Single Judge of the High Court has committed any error of law in reversing the acquittal by the Magistrate. Not every fanciful reason that erupted from flight of imagination but relevant and germane requires tested. Reasons are the soul of law. Best way to discover truth is through the interplay of view points. Discussion captures the essence of controversy by its appraisal of alternatives, presentation of pros and cons and review on the touchstone of human conduct and all attending relevant circumstances. Truth and falsity are sworn enemies. Man may be prone to speak falsehood but circumstantial evidence will not. Falsity is routed from man's proclivity to faltering but when it is tested on the anvil of circumstantial evidence truth trans. On scanning the evidence and going through the reasoning of the learned Single Judge we find that the learned Judge was right in accepting the confessional statement of the appellant, Ex. P-4 to be a voluntary one and that it could form the basis for conviction. The Magistrate had dwelt upon the contr....