Decided on July 29,1991



T.P. Nambiar, Member (J) - (1.) THIS is an appeal filed by the above-captioned appellants against the orders passed by the Collector of Customs (Preventive), Calcutta in Order No. l/Cus/WB/88. In terms of that order he confiscated the medicinal powder in this case and the gunny bags in which they were so found. The VCR seized was also confiscated. The ball-point pens and perfume were also confiscated. The truck under seizure was confiscated and the same was ordered to be released. A personal penalty of Rs. 50,000.00 each was imposed on the above-captioned appellants under Section 112 of the Customs Act, 1962.
(2.) The appellants have challenged the legality of the imposition of penalty as well as the confiscation of the VCR and the ball-point pens and perfume. The facts of the case are that on reliable information the Customs Officers of Diamond Harbour Preventive Unit on 15-5-1986 at about 03.00 hrs. saw a lorry at Kulpi Crossing going towards Lakshmikantapur. The lorry was stopped by them and they found three persons in the lorry. They were S/Shri Prafulla Debnath; Shambhu Das and Haradhan Das. There were 57 gunny bags containing medicinal powder valuing Rs. 37,78,500.00 along with five documents and also six keys having no commercial value and these were seized from that lorry. The medicinal powder was seized under Section 110 of the Customs Act, 1962 on reasonable belief that the same was illegally imported into the country. The above-said three persons were interrogated on the same day. They disclosed that the above medicinal powder was imported from Bangladesh and they picked up the same at Harwood point at about 01.00 hr. and the crew of the boat loaded them into the lorry. All these three persons stated that the above-captioned appellants directed them to pick up the medicinal powder from the above-said place and under their direction they went there. Shri P. Debnath stated that he was given a sum of Rs. 2,000.00 for his services. Shri S. Das stated that as per the instruction of the appellants he arranged for the lorry. So also Haradhan Das stated that the milk powder was taken at the instance of the appellants. Show Cause Notice was issued to the appellants and the others including the above-said three persons and after adjudication the impugned order was passed.
(3.) THE learned Barrister, Shri S.K. Roy contended before us on behalf of the appellants that the statement given by Shri Gour Hari Saha was not a voluntary statement. It was tendered by him due to assault. He also relied on the medical report given by the Jail Doctor. He, therefore, contended that the statement cannot be relied upon. In support of his contention he relied on the decision of the Supreme Court reported in AIR 1979 SC 705 in the case of Sevantilal Karsondas Modi v. THE State of Maharashtra and Another. He, therefore, contended that if this statement is excluded then what remains is the statement of the co-accused and the statement of the co-accused is not corroborated by any independent source. He, therefore, contended that the evidence of one co-accused cannot be corroborated by the other co-accused. In this connection, he relied on the decision of the Supreme Court reported in AIR 1970 SC 45 in the case of Mohd. Hussain Umar Kochra etc. v. K.S. Dalipsinghji and Another etc. As far as the VCR is concerned he contended that the document under which it was brought to the country was the baggage receipt so shown to the officers. He also pointed out that the same was brought under a valid baggage receipt and the confiscation of the same under Sections 111(d) and 111(p) of the Customs Act, 1962 is not in accordance with law. He also contended that it cannot be confiscated under Sec. 111(o) on the ground that this section was not mentioned in the show cause notice. Secondly, he contended that the same was received by him on mortgage basis and mortgage docs not amount to sale. THE learned S.D.R., Shri M.N. Biswas and J.D.R., Shri A. Chowdhury appeared for the respondent. It was contended by them that the statement of the appellant, Shri Gour Hari Saha was a valid statement. It was their contention that he has given a vivid description about the transactions in the statement and the same is voluntary and true. It was also contended that this statement was further corroborated by the statements of P. Debnath, S. Das and H. Das. It was also contended that these three persons had stated that on the instructions of the appellants they had engaged the lorry and went to the coastal place and picked up the medicinal powder from a boat coming from Bangladesh at Kakdwip-ghat. THEy also contended that P. Debnath stated that he was a Bangladeshi National and he was introduced to the appellants and he was given Rs. 2,000.00 for his services. THEy also contended that Sambhunath Das admitted that he was offered Rs. 5,000.00 as hire charge for the vehicle for transporting the medicinal powder. THEy also contended that H. Das in his statement had clearly stated that he was professional driver and he was driving this truck which was carrying the medicinal powder. It was also contended that he disclosed that Dilip Dey was the owner of the truck and Geur Saha had paid some money to Dilip Dey in connection with this truck. He also admitted that he was paid Rs. 2,000.00 per trip as hire charge and he was paid Rs. 500.00 by the employer. THEy also contended that in this statement he had clearly stated that previously also he had carried such goods by the said truck along with the persons, Shri Sambhunath Das and Shri Prafulla Debnath and handed over the same to Shri Debu Saha, brother of Shri Gour Saha. It was, therefore, contended that all these persons had corroborated each other and therefore, there is sufficient corroboration to implicate the appellants in this case.;

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