L C SEKHAR @ CHANDRASEKHAR Vs. COLLECTOR OF CUSTOMS AND CENTRAL EXCISE
LAWS(CE)-1986-5-2
CUSTOMS EXCISE AND GOLD(CONTROL) APPELLATE TRIBUNAL
Decided on May 29,1986

Appellant
VERSUS
Respondents

JUDGEMENT

S.Kalyanam, - (1.)THIS appeal is directed against the order of the Additional Collector of Customs, Madurai dated 30.7.1985 imposing a penalty of Rs. 2,000/- under Section 112 of the Customs Act, 1962 (hereinafter referred to as the 'Act'). Proceedings were instituted against the appellant in connection with the recovery of certain contraband goods from the residential premises of one Abdul Hutha at Door No. 23, Thandial Chavadi Street, Tirunelveli Town, resulting in the impugned order now appealed against. A penalty of Rs. 2000/- has been imposed on the appellant herein under the impugned order placing reliance on the statements of (i) Abdul Razack (ii) Abdul Subhan and (iii) the statement of the appellant himself and his associates M/s. Saravanan and Vetham @ Vethanayagam. Shri A. Vadivel, learned Counsel for the appellant submits that admittedly no contraband goods nor any incriminating documents were recovered from the custody or possession or the residence of the appellant herein and the appellant has been visited with a penalty on the ground that he was concerned in the contraband goods and such a conclusion has been arrived at by the adjudicating authority under the impugned order purely on the basis of statements recorded from persons such as Abdul Razack and Abdul Subhan. It was urged that when M/s. Abdul Razack and Abdul Subhan originally gave a statement before the authorities respectively on 7.10.1982 and 10.12.1982 they did not implicate the appellant at all and the implication of the appellant has come into existence only in a second statement recorded from the said persons respectively on 21.12.1982 and 3.1.1983. The learned Counsel further urged that while the statement of appellant Sekhar was recorded admittedly by the authorities only on 22.12.1982 reference about the statement of the appellant is made by Abdul Razack in his statement recorded on 21.12.1982. It was, therefore, urged that the statement attributed to the appellant cannot be relied upon. The learned Counsel further contended that immediately after the appellant was taken by the authorities from his residence against his will a telegram was sent by the appellant's brother on 22.12.1982 to the authorities and again a telegram retracting the inculpatory statement was sent by the appellant himself immediately after he was released on bail on 25.12.1982. It was contended that these telegraphic protests have not been adverted to in the impugned order appealed against, much less considered. The learned Counsel, therefore, pleaded that in the circumstances the appellant would at least be entitled to the benefit of doubt and be exonerated of the charges levelled against him under the Act.
(2.)Shri Krishnan, the learned Departmental Representative contended that even though reference by Abdul Razack in his statement dated 21.12.1982 is made to the statement of the appellant dated 22.12.1982, as pointed out by the adjudicating authority under the impugned order, the statement of the appellant could have been recorded on 21.12.1982 but his signature taken on 22.12.1982. The learned D.R. urged that even though the appellant has not been originally implicated either by Abdul Razack or Abdul Subhan in their statements dated 7.12.1982 and 10.12.1982 their subsequent statements implicating the appellant could well be taken into consideration. Regarding the retraction by the appellant by means of a telegram immediately after his release and also a telegram complaining against the appellant being forcibly taken by the authorities on 21.12.1982, it was urged that though it is mentioned in the reply to the show cause notice, the appellant has not substantiated the same.
I have carefully considered the submissions of the parties herein. The admitted fact remains that when a statement was recorded by the authorities from M/s. Abdul Razack and Abdul Subhan respectively on 7.10.1982 and 10.12.1982 the appellant herein was not implicated. I went through the statements of these persons and they are fairly comprehensive and detailed regarding the seizure of contraband goods and facts connected thereto. In such a situation when the appellant has not been implicated at all, it does not stand to reason as to why the authorities should have thought of recording a second statement belatedly from the said persons respectively on 21.12.1982 and 3.1.1983. This aspect of the matter has not been considered by the adjudicating authority under the impugned order. Curiously enough in the second statement recorded from Abdul Razack dated 21.12.1982 he makes a reference about the existence of a statement of the appellant which according to the Department, came into existence and saw the light of the day only on 22.12.1982. If the statement of the appellant came into existence on 22.12.1982 as contended by the Department, it does not stand to reason as to how Abdul Razack would have made any reference at all to the same on 21.12.1982. Therefore, the alleged reference of Abdul Razack to the nonexistent statement of the appellant throws a considerable doubt about the culpability of the appellant herein. The explanation of the learned Departmental Representative and the reasoning of the adjudicating authority that the statement of the appellant could have been prepared and come into existence on 21.12.1982 and the signature was taken on 22.12.1982 are far from convincing and much less acceptable. If the authorities chose to record a statement from the appellant on 21.12.1982 itself, it does not stand to reason as to why the authorities should have postponed taking a signature of the appellant therein till 22.12.1982. The conclusion that the statement of the appellant could not have been in existence on 21.12.1982 is not altogether unjustified in the circumstances of this case and in such a situation whatever benefit accrues out of the same should go to the appellant. I find considerable force in the submission of the learned Counsel for the appellant that the telegraphic retraction of the inculpatory statement by the appellant on 25.12.1982 immediately after he was released on bail has not been adverted to much Jess considered in the impugned order notwithstanding the fact it has been specifically pleaded in the reply to the show cause notice. Likewise, the telegram of the appellant's brother dated 21.12.1982 referred to in the reply to the show cause notice and a copy of which has been sent to the authorities has not been considered at all by the adjudicating authority under the impugned order. In these circumstances, it will be difficult to sustain the findings of the adjudicating authority under the impugned order that the inculpatory statement recorded from the appellant is voluntary. It is relevant to note that the adjudicating authority under the impugned order has held the statement of the appellant to be voluntary only from the fact that there was no immediate retraction, evidently ignoring the retraction by the appellant by means of a telegram expressly referred to in the appellant's reply to the show cause notice. Since the impugned order is beset with various infirmities mentioned above, I am inclined to hold that the appellant herein will be entitled to the benefit of doubt arising in the circumstances of this case. Accordingly, I give the benefit of doubt to the appellant herein and exonerate him of the charges levelled against him. In the result, the impugned order appealed against is set aside as against appellant and the appeal is allowed so far as the appellant alone is concerned with consequential relief.



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