Decided on July 16,1986



S. Kalyanam, Member (J) - (1.)THIS appeal is directed against the Order of the Collector of Customs, Cochin, dated 25-5-1985 imposing a penalty of Rs. 50,000/-on the appellant under Section 114 of the Customs Act, 1962, hereinafter referred to as the 'Act'.
(2.)The Officers of the Customs Department, Cochin, examined a consignment of 250 cartons of frozen fish on 24-4-1984 at about 2.00 P.M. and found that a quantity of 516.502 Kgs. of 'Hashsish' concealed and packed in slabs of layers of skin of fish. The consignment in question was sogught to be exported by M/s. Nigil Exports (India) Cochin, to New York per M.V. DAULA GIRL As export of Hashish is prohibited under the provisions of the Dangerous Drugs Act, 1930, the goods were seized by the authorities as per law, under mahazar, attested by witnesses. The premises of M/s Nigil Exports (India) were also searched by the Customs Officers on 30-4-1984 and on 1-5-1984 and about ten tea chests, some of them containing 'Jaipur' markings were seized by the authorities under mahazar. Investigations revealed that the appellant herein masquerading under a pseudo name Kumar was found in the company of Antony John, Proprietor of M/s. Nigil Exports (India) and his son, Anson and one Narayanan, a partner of the firm, prior to the export of the consignment in question and ten tea chests, steel stripped and sealed with clips were brought in a tempo van and un-loaded in the factory of Antony John. Statements recorded from the persons like V.A. Joseph, Driver of the tempo van and V.J. James, the cleaner coupled with the statement of M/s. Josh Kumar, George, Jit Bahadur etc., revealed the appellant's connection with Antony John, his son Anson, the partner, Narayanan with the said tea chests un-loaded at the cold storage of Antony John's factory. It is in these circumstances, proceedings were instituted against the appellant, which ultimately resulted in the present impugned order, now appealed against.
Shri Alreja, the learned counsel for the appellant submitted that there is absolutely no legal evidence connecting the appellant with the hashish under seizure and the impugned order was assailed as one based on sheet suspicion against the appellant. It was further contended that the appellant does not know anything about M/s. Nigil Exports and much less about its Proprietor, Antony John, his son Ansoo or the partner, Narayanan and the appellant has been proceeded against presumably on a mistaken identity. It was further urged that even if one were to assume that the. appellant knew the said persons well and had acutally brought the tea chests, there is no evidence on record to show that the tea chests in question actually contained hashish. Finally, the learned counsel pleaded that in any event, the quantum of penalty is harsh and excessive and would call for reduction.

(3.)THE learned Senior Departmental Representative, Shri K.K. Bhatia, submitted that though the case of the Department rests on circumstantial evidence, the cumulative effect of the circumstantial evidence available on record would point to only one hypothesis, namely., the guilt of the appellant as an abettor in the clandestine export of contraband goods, namely, 'Hashsish' in the company of others. THE learned SDR drew our attention to the statements of Joseph and James, the driver and the cleaner of the van and contended that their evidence would clearly establish that the ten tea chests were brought to M/s. Nigil Exports cold storage in the said van. THE learned Senior Departmental Representative" also placed reliance on the statement of Josh Kumar and contended that the appellant's close association with the Proprietor of Nigil Exports, namely, Antony John, his son Anson and the Partner, Narayanan has been clearly established. THE learned SDR highlighted the circumstances appearing in evidence regarding the presence of the appellant in the company of Antony John, Anson and Narayanan, referred to supra on the eve of the attempted illegal export of hashish and prior to that and about the appellant's presence at the time of un-loading the said tea chests. THE learned SDR further urged that smuggling activities normally take place in stealth and secrecy in a clandestine manner and proof of every act or activity of a smuggler to a mathematical precision is not practically possible and over-whelming circumstances coupled with un-tenable defence of appellant dis-claiming any connection or association with the partners of Nigil Exports would clearly prove the charge against the appellant.

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