B N JADEJA Vs. COLLECTOR OF CUSTOMS

JUDGEMENT

(1.) THIS appeal is directed against the Order-in-Original bearing No. 52/Addl. Collr./l985, dated 2-8-1985 so far as it relates to imposition of personal penalty of Rs. 2500/- under Section 112(b)(i) of the Customs Act, 1962 on the present appellant.

(2.) The appellant, who at the relevant period, was Police Sub-Inspector at Bagvadar Police Station, in Junagadh District of Gujarat, has, vide Notice to show cause dated 22-11-1985, been charged to have been concerned in acquiring, removing, possessing, transporting, keeping, concealing 7 VCRs made in Japan, which were found on 13-4-1983, from an open room near Palakhada Bus Stand. The facts leading to levelling of the aforesaid charge, as narrated in the aforesaid show cause notice are, that on 3-4-1983, at about 9.00 p.m., when the appellant with his party was on patrolling on Ketela -Ratdi Road he spotted one oil tanker bearing registration No. MTS 3406 and when signalled to stop, it did not stop, hence it was chased, and was ultimately found abandoned near Ratdi Village. Under the instructions from the appellant P.S.I., the same was brought to Bagdavar Police Station and intimation was given to the Customs Department at Porbandar. The officers were sent there, who found three V.C.Rs. lying concealed in one of the compartments of the tanker, which were seized under the reasonable belief as they being smuggled into India. On 13-4-1984, the appellant P.S.I., seized seven V.C.Rs. "National" made in Japan, from an open room near Palakhada Bus Stand, under a panchnama and the same were handed ever to the Customs Department. The appellant P.S.I., also produced two persons, namely Meraman Ala Mer and Shantigar Amargar Bawaji of Visawada as the persons concerned with the said goods. The officers of the customs department, therefore, recorded the statements of both of them. Shantigar Amargar Bawaji, in his statement recorded on 14-4-1983, under Section 108 of the Customs Act, is reported to have stated that, on 3-4-1983, while he was passing from near the place where the oil tanker was lying, he saw two police constables Keshuvbhai and Jivabhai. He was stopped by Constable Keshuvbhai, and was told to drive the oil tanker to Bagvadar Police Station, as the same was directed by the appellant P.S.I. to be taken. He is reported to have further stated that accordingly, after putting his vehicle, he came back, and drove the said oil tanker, alongwith constable. Keshuvbhai and Jivabhai to Bagvada Police Station. According to him, on the way, the tanker was made to stop by constable Jivabhai who got down and came back with Meraman Alabhai Mer and both of them boarded the tanker. After the tanker proceeded little further, it was made to stop, and he was asked to go to nearby place to ascertain whether appellant P.S.I. had come, and as such he went and when he returned, he saw 8 to 9 bundles lying scattered near the tanker wrapped in jute cloth. He was then asked by constable Keshuvbhai to take the tanker to the Police Station. He is reported to have stated that constable Keshavbhai at that time told him that the goods belonged to P.S.I. Jadeja the appellant here and that he should not talk about this to any one. In his statement recorded, also on 14-4-1983, Meraman Ala Mer, is reported to have stated that about ten days back, while he was in his farm, constable Jivabhai came and asked him to accompany him (Keshavbhai) to Palkhada, Bus Stand where the tanker was lying. He accordingly went there and accompanied both constables Jivabhai and Keshavbhai in the tanker. According to him, the oil tanker was stopped after some time and both the police constables unloaded 8 to 9 bundles rapped in jute cloth, and tanker alongwith constable Keshavbhai went away. As per the version, Constable Jivabhai then told him that the goods belonged to P.S.I. Jadeja, the appellant, and that the appellant would pay him Rs. 5000/- and he should arrange to conceal the goods. He is reported to have further stated that he therefore arranged to remove these bundles and at the instance of constable Jivaji, concealed the same in the barren farm of Jivabhai Mer. On the next day both the Policemen came to him and told him to remove the goods from the place where they were concealed to his (Meraman) field. He is reported to have further stated that initially he hesitated but was told that the goods belonged to PSI Jadeja, the appellant and was threatened of dire consequences and hence he, with assistance of those two constables, removed the goods and concealed them in the farm. Basing on this evidence, the department vide notice dated 22-11-1985, called upon the appellant and two police constables to show cause why penalty should not be imposed on them under Section 112 of the Customs Act. The appellant submitted his written reply denying the allegations. After hearing them, the Additional Collector passed the impugned order. Two constables have also been ordered to pay penalty of Rs. 500/- each under the same provision.

(3.) SHRI K.M. Mondal, the learned SDR, supporting the finding and order of the Additional Collector, submitted that the appellant has been named as the person concerned by the independent and disinterested persons, who have no reason to falsely implicate the appellant and there should be no reason why they should be disbelieved. He also submitted that both of them have corroborated each other. Mr Mondal submitted that though Meraman has stood penalised under Section 112 of the Customs Act, he is implicated only for his abatement in concealment of the said contraband goods, but that cannot make Meraman an incredible witness. Explaining the behaviour of the appellant, in handing over the said VCR to the customs officers, Mr Mondal submitted that, apprehending that some others had come to know about his involvement in the said smuggled goods, the appellant subsequently thought it safe to surrender the goods, as found abandoned. Mr. Mondal submitted that there is no ground existing to interfere with the order of the Addl. Collector.