S ELANGOVAN Vs. COLLECTOR OF C EX

JUDGEMENT

(1.) SINCE the above appeals arise out of the common order of the Additional Collector of Central Excise, Madras, dated 3-9-1987, they are taken up together and disposed of by a common order.

(2.) On the basis of prior information, the officers of the D.R.I, searched the premises of appellant Maricayar @ Pallack on 6-1 -1986 and recoverd a sum of Rs. 2,14,950 on the reasonable belief that they represented the sale proceeds of contraband gold. The currency was seized under a mahazar as per law. Appellant Maricayar gave a statement before the authorities on 6-1 -1986 admitting the fact that the currency under seizure represented the sale proceeds of contraband gold biscuits. Appellant further stated that the currency was given to him by Elagovan, who is the appellant in the other appeal. The authorities also effected seizure of a sum of Rs. 1,00,000 during the course of investigation from the residential premises of Elangovan at Purasawalkam, Madras. The authorities also recorded statements from the other appellants viz. Jagubar Sadiq and Elabgovan and they also gave incriminating statements admitting the fact that the currency represented the sale proceeds of contraband gold biscuits and that they had been indulging in such illegal activities even in the past along with appellant Maricayar. It is in these circumstances, after further investigations, proceedings were instituted against the appellants resulting in the present impugned order appealed against.

(3.) SHRI Sadakathulla, the learned counsel for the appellant Maricayar, submitted that the inculpatory statement recorded from the appellant on 6-1-1986 is not voluntary and true and was brought about under threat and coercion and is, therefore does, not have any evidentiary value in law. It was urged that the same was retracted as early as on 9.1.1986 and also thereafter on 21.1.1986. liwas urged that even the search on the basis of which the currency was recovered from the appellant's house was in contravention of law and the search being illegal the recovery is vitiated. In this connection the learned counsel placed reliance on the ratio of the ruling of the Supreme Court in A.I.R. 1968 S.C. page 59 in the case of Board of Revenue, Madras v. R.S. Jhaver, and in particular relied upon para 19 at page 67 and also the ruling of the Calcutta High Court reported in 1987 Criminal Law Journal, page 60. It was urged that the authority had no reason to believe for effecting the search and, therefore, the seizure of the currency is not admissible in law. The learned counsel further submitted that 13 people were to be sent abroad by one Elan-govan and the said Elangovan collected money from the said 13 persons and entrusted the same with the appellant herein for safe custody and though the said 13 people were examined before the adjudicating authority their evidence has not been properly considered The learned counsel further submitted that there are serious discrepancies in the evidence on record and urged that even if a gram is valued at Rs. 200/-, the total value of 14 biscuits would come to Rs. 2,80,000 whereas the Department has effected seizure of Rs. 3,14,950 and would attribute the same as the value of 14 gold biscuits. Finally, the learned counsel pleaded for reduction in the quantum of penalty in any event on the ground that the appellant was never involved in any contravention in the past and is only a house broker.