ORDER
P.K. Desai, Member (J)
1. This appeal is directed against the Order-in-Original No. S/14-5-59/87 Pint dated 18-12-1987 of the Additional Collector of Customs (P) Bombay, so far as the same relates to imposition of personal penalty of Rs. 40,0007- on the appellant.
2. On 17-3-1987, twelve gold bars of ten tola each bearing marking of foreign origin were recovered from the waste bin in the toilet of the air craft of British Airways which had landed in Bombay at 1230 hrs. on that day as Flight No. BA-139 on its route London Bahrain Bombay. The recovery was effected on the information given by the Pilot of the said air craft, to whom the matter was reported by two of their crew members, namely Mr. Learner and Mr. Franco, who also disclosed that about half an hour before landing of the air craft at Bombay, they had seen from the half open door of the toilet, one person bending near the waste bin and concealing something therein, and who, on being requested to identify that person amongst the passengers, who were still in the Customs Baggage Hall, identified the appellant as the said person. Besides, seizure of the gold, the appellant was detained, and his statement vide Section 108 was recorded, on the same day, where, after giving family history, he stated that since 1970 he was frequently visiting Dubai and was bringing articles from there and was selling them in Bombay and during his such visit in January 1987, he met one Mohammed who was reportedly sending gold to India through courriers, and enquired whether he (appellant) was interested and offered Rs. 3000/- as compensation, and on his agreeing to the same, who told that he (the appellant) was to take gold on British Airways flight via Behrain to Bombay, and had to keep the gold in dustbin of the left hand side toilet in the first class. The appellant also stated that said Mohammad told him that some one would contact him (appellant) at his residence in Bombay, and would introduce him to two persons working at Bombay Air Port, and that those two persons would then explain other details. As stated by the appellant, he had planned to visit Dubai on 28-2-1987, however on 27-2-1987, one Malabari person whose name he did not know, approached him and introducing him as a man of Mohammad of Dubai, and instructed him (appellant) to go to Dubai, and on being told about the planned visit, the said person went with him to the Air Port, when the appellant was to depart, and showed him two persons in blue uniform with “Combatta” marked on the shirts. As stated by the appellant, on his reaching Dubai, Mohammed contacted him, and handed over one packet containing gold, which, on his return trip to Bombay via Bahrain, by British Airways, as planned, on 10-3-1987, he put in the dust bin of the toilet in first class, and while he was in immigration, he spotted two blue uniformed persons, earlier pointed out by Malabari, and then went home. The appellant then stated on 14-3-1987, the said Malabari again contacted him on phone, informing that a person with Rs. 8200/- will meet him and that he should book a ticket for 16-3-1987 for Bombay Dubai Bahrain Bombay by Air India and the amount for that was paid to him on 15-3-1987. According to the appellant, he reached Dubai on 16-3-1987, where Mohammad met him, and took away his Air India ticket, and instructed him (appellant) to reach Dubai Airport, on 17-3-1987, and at the Airport gave him two packets of gold and the tickets, and accordingly he flew to Bahrain by Gulf Airways and then in the first class, in British Airways flight No. BA 139 to Bombay, and about half an hour before landing at Bombay, he had concealed the packet in the wastebin in left hand side toilet of the first class. He also stated that he saw those two persons in blue uniform this time also, and while he was proceeding towards the exit after customs clearance, he was intercepted. He also admitted to have been identified by two of the crew members of the British Airways. The appellant also admitted the two packets containing gold, produced by those two crew members, as the one brought by him, and that he had identified the two persons in blue uniform with marking “Cambatta” from amongst similarly uniformed other persons, whose names were then disclosed as K.S. Anandanarayanan and Babu Hari Waghmare. The identification panchnama and the seizure panchnama were drawn and on the seizure panchnama, besides others, the two crew members also put their signatures. In their respective statements recorded on the same day, both Anandanarayanan and Waghmare, though denied their involvement, admitted to have been duly identified by the appellant. Further statement of the appellant was recorded on 31-3-1987. The appellant vide his application dated 3-4-1987 filed before the Metropolitan Magistrate, however, retracted from his statements recorded by the Customs Officers, and alleged torture and compulsion and denied his involvement.
3. On completion of the investigations, show cause notice dated 10-8-1987 was served on the appellant and the other two persons, and all the three denied the allegations levelled against them. In the adjudication proceedings that followed vide the impugned order, whereas the other two were exonerated, besides ordering absolute confiscation of the gold, to which none had even otherwise lodged any claim, the appellant was imposed penalty of Rs. 40,000/- vide Sections 112(a) and (b) of the Customs Act, 1962.
4. Mr. J.B. Raichandani, the Ld. Advocate for the appellant, has submitted that in the criminal prosecution initiated, the appellant has been acquitted, and the said aspect be taken into consideration. He further pleads that the investigating authority has not recorded any statement of the two crew members who reportedly saw the appellant concealing the gold in wastebin and the adjudicating authority has also not offered them for any cross-examination, though demand therefor was made, and therefore, the said aspect cannot be taken into consideration. He has then pleaded that the appellant had been in the business of bringing items from Dubai on due payment of duty and selling them in Indian market, and as such, his frequent foreign visits may not assume any significance, in relation to the allegations levelled against him, in relation to the seized gold from the toilet of the air craft, and thus the only evidence that was available, was the inculpatory statement recorded on 17-3-1987, and the other one on 31-3-1987, but the same could not be made use of, for basing any conclusion as the same have been duly retracted in the application dated 3-4-1987 submitted to the Metropolitan Magistrate, and the same do not stand corroborated on material particulars, by any independent evidence. He also pleads that the other two co-noticees, who have been exonerated, but who were duly implicated in the retracted statements of the appellant, have not said anything implicating or providing any corroboration to what has been earlier stated by the appellant. In this submission, even what is alleged to have been seen by the two crew members, the same would not prove that it was the appellant who dropped the gold in the waste bin, as he might have bent near that place for any other purpose, and the toilet is a place which remains open for visit by any of the passengers who may desire to make use thereof. He pleads that with appellant having not claimed the gold at any time, and with no convincing evidence available to implicate him, the order of the adjudicating authority ought to be set aside.
5. Mr. K.S. Nair, the Ld. SDR, while supporting the order, has submitted that, though the statements of crew members were not recorded, whatever they have stated has been brought out in the Panchnama, which has been signed by both of them. In his submission, when the appellant has admitted his involvement in two statements recorded on 17-3-1987 and 31-3-1987, there could be no reason to disbelieve them, and that the retraction has come at a belated stage, and ought to be discarded as an afterthought. He also pleads that even otherwise, enough corroboration is available from the statements of two other co-noticees, as well as the surrounding circumstances, so as to base reliance on the so-called retracted statements of the appellant. In his submission, there is no ground made out to interfere with the order of the adjudicating authority.
6. Considering the submissions, and going through the record, the finding of two packets containing gold biscuits with the marking of foreign origin, from the specific toilet in the aircraft of British Airways, which landed at Bombay on 17-2-1987 at about 1230 p.m. as flight No. BA 139 on London-Bahrain Bombay sector, is not under any dispute. The appellant has also not challenged that he travelled as the passenger in the first class by the same flight, and had boarded the Aircraft at Bahrain. There is also no denial, and even otherwise it is established from the entries in the passport of the appellant, that he had gone abroad on 14-1-1987 and had returned on 23-1-1987 and again gone on 28-1-1987 and returned on 30-1-1987 and once again gone on 28-2-1987 and had returned on 10-3-1987, and that the last trip showed departure on 16-3-1987 and return on 17-3-1987.
7. It is also admitted that two statements of the appellant recorded on 17-3-1987 and 31-3-1987 [sic] are inculpatory, and that an application, has been filed only on 3-4-1987 before the Metropolitan Magistrate, retracting those statements. There is also an admission on the part of the departmental authorities that the statements of crew members, who reportedly saw the appellant in the toilet of the aircraft, are not recorded.
8. The acceptability of his inculpatory statements has been challenged on the plea that the same are retracted. Besides the fact that the law on the issue has, by now, been well settled that retracted statement may also be relied upon to base conclusion, provided the same is corroborated on material particulars, the very act of retraction, appears to be an afterthought and an attempt to raise some plausible defence. The first inculpatory statement is recorded as early as on 17-3-1987, and the retraction has come only on 3-4-1987. Though a mention is made in the said application that retraction is made at the first available opportunity, the appellant having been arrested on 17-3-1987, must have been under judicial custody, if he was not earlier released, and while in judicial custody, there could be no scope for the customs authority to pressurise him not to retract, and even in the application no act of ill treatment is alleged while the appellant was in judicial custody. Further, it is not possible to accept that the statement was extracted from him with a view to falsely implicate him, as had that been so, bringing of the gold on the previous visits also, would not have come on record, as the same was neither known to the officers, nor was it essential for the officers for the purpose of involving him in import of seized gold. It is also significant to note that the same investigating officers have also recorded the statements of two loaders implicated by the appellants, as those who would have removed gold from the toilet, and their statements recorded on 17-3-1987 itself are exculpatory, though inculpatory statements from them would have made the case against the appellant stronger. In the application to the Metropolitan Magistrate, the appellant has maintained that he is an illiterate person and knows only Gujarati, but besides the fact that the very same application is in English, the same is signed by the appellant also in English. The signature of the appellant in the statements as also on CA-3 form filed before the Tribunal are also in English. Plea of illiteracy and/or knowledge of only Gujarati language is also not convincing and appears to have been advanced to escape from the liability that may arise out of his admission. The bona fide of the appellant in retracting from his statements, therefore, cannot be accepted. There is also no explanation as to what could be the motive for the customs officials to falsely implicate the appellant.
9. Under the circumstances, the said inculpatory statements themselves would provide sufficient evidence to draw a conclusion, and the plea that because of non-recording of the statement of the crew members and non-offering them for cross-examination, is of no consequence.
10. Even assuming that because of even such belated retraction given as an afterthought in an attempt to raise some defence, the statement or the inculpatory portion thereof need not be accepted unless there is corroboration on material particulars, there is enough corroboration available on record.
11. The appellants have stated two persons, who were to take the gold out of the air craft, and have identified both of them. These two persons also admit to have been identified by the appellant, and panchnama is also drawn for that. Both those persons have accepted that they were on the relevant day, assigned the job to clean British Airways which had landed as flight BA 139, and were present. That apart, the documentary evidence in the nature of entry in the passport, indicates that the appellant had gone abroad twice in January and once in February 1987. He had returned to India on 10-3-1987 to go back again on 16-3-1987 and returned the very next day i.e. 17-3-1987. In the earlier part of his statement dated 17-3-1987, while giving his personal background, which he admits even in his retraction to have given, he has stated that earlier he used to go to Dubai and buy articles there and sell them in Bombay market so as to earn about Rs. 2000/- to Rs. 3000/- a month. It is not possible to believe that for such a small earning he would make such frequent visits. Significantly, on his return to Bombay on 17-3-1987, as per the duty paying document that the appellant himself has produced, he had brought only a few items, the duty payable on which was only Rs. 1615/-. A short trip for merely a day, only to bring such a small quantity of goods, on which the duty payable was 170% at the relevant period (rate of duty is also mentioned in the Baggage Clearance receipt) is rather unconscionable, as the market sale proceeds thereof would not have been enough even to cover up his air fare of travelling in the first class on the British Airways. According to the appellant, he was bringing the goods from Dubai, where his brother-in-law had a shop. He also states that he went on 16-3-1987, by Air India flight, having bought the ticket as Bombay Dubai Bahrain Bombay. If his only aim was to go to Dubai and back, there would be no cause to go to Bahrain. Further, though he had ticket for Air India, instead of flying on that Airlines, he has used British Airways and that too, as first class passenger. Such a change in the airlines, coupled with the fact that a person, with such a small margin of profit available on sale of goods in Indian market, would not afford to fly as first class passenger, not only does not go in conformity with what he had subsequently pleaded, but on the other hand confirms to the version given in his initial statement dated 17-3-1987.
12. Thus the circumstances, as indicated above, do lead to substantiate what the appellant has admitted in his statement dated 17-3-1987, the retraction of which is also, for the reasons as stated above cannot be accepted as the genuine one.
13. Admitting that it has only a persuasive value, the learned advocate has pleaded that in the prosecution under Section 135 of the Customs Act, 1962, the appellant has been acquitted. The law is clear that any finding in the Magistrate Court, cannot affect the adjudication proceedings under the other provision. The scales for appreciation of evidence in such trials are substantially stringent, and the benefit goes to the accused, on any lacuna. It appears that corroboration available from the circumstantial evidence, brought out hereinabove, presumably, was not projected there, and merely because on that account, if the trial has resulted into acquittal, the same could not prevent the adjudicating authority under the Act, from taking a contrary view.
14. In the result, there does not appear any justifiable ground to differ from the conclusion drawn by the authority below and hence the same is confirmed. Even for the quantum of penalty imposed, the same being not disproportionate to the value of the gold involved, does not call for any interference.
15. The appeal is, therefore, rejected.