ORDER
G.P. Agarwal, Member (J)
1. The captioned appeal is directed against the Order-in-Original No. 18/CUS/1982 dated 19-11-198? passed by the Collector, Central Excise, Chandigarh, inter alia, imposing a personal penalty of Rs. 1,00,000 (Rupees one lakh) on the appellant under section 114 of the Customs Act.
2. Factual backdrops: It was alleged that on 10-12-80 the Police party, P.S. Gharinda conducted Nakabandi on turning point of Arvinder Naushera Dhalla road and at about 7.45 p.m. the Police party noticed one motor cycle coming from village Buraj towards Naushera Dhalla. When the motor cycle came near, the Police tried to stop the motor cycle and also fired with varilight pistol for light. At this one Pragat Singh fired at the Naka party from his pistol. The Police party challenged him to surrender but he escaped under the cover of darkness. It was further alleged that the Police party caught the present appellant along with the motor cycle and also recovered contraband goods from the boxes attached to the carrier of motor cycle. Part of the contraband goods namely, silver was handed over to the Customs authorities on 15-12-1980 and accordingly the same was seized by the Customs authorities under Section, 110 of the Customs Act. In his first statement which was recorded on 16-1-1981 the appellant denied having any link or concern with the seized silver. He further came out with a very categorical defence that the police has fabricated the case against him and he was arrested by the police on 10-12-1980 at about 2300 hrs. from his house. The statement of Pragat Singh was also recorded. As a follow-up action, the appellant as well as Shri Pragat Singh were called upon to show cause as to why the goods under seizure be not confiscated and-why penal action be not taken under the provisions of the Customs Act. In his reply to the show cause notice the appellant reiterated his stand which he disclosed at the time of recording of his statement on 16-1-1981. The said Shri Pragat Singh also abjured his guilt. After the usual enquiry the Adjudicating Authority confiscated the contraband goods but refrained from imposing any penalty on the said Shri Pragat Singh for want of sufficient evidence. However, a penalty of Rs. 1,00,000/- (Rupees one lakh) was imposed on the appellant mainly and solely relying on the police papers which were handed over to the Customs authorities subsequent to the arrest of the appellant.
3. Shri M. Ganesan, counsel for the appellant vehemently urged that there is absolutely no evidence on record to connect the appellant. While elaborating his arguments he submitted that no investigation or enquiry worth the name was ever conducted by the Customs authorities after the seizure of the contraband goods from the police and to quote his own words “the Customs authorities accepted the story of the police as a gospel truth.” This, according to him, was not only a lapse on the part of the authorities concerned but speaks about the sad state of affairs as to how the cases are being handled by the Customs authorities and -innocent persons are made scapegoat. Besides, he also submitted that the appellant was also prosecuted by the police concerned under Section 9 of the Opium Act on the allegation that opium was also recovered at the time of the incident in question from the boxes attached to the motor cycle and that ultimately he was acquitted by the Hon’ble High Court of Punjab and Haryana in Criminal Appeal No. 297-SB of 1983 dated 2-12-1983. He also took us through the said judgement of the Hon’ble High Court to show that out of the same occurrence on 10-12-1980 the police also prosecuted the appellant in two other connected cases under Section 307 of the Indian Penal Code and Section 25 of the Arms Act which were alleged to have been committed in the course of the same transaction and in both these cases the appellant was also acquitted on the ground that the story seems to be highly improbable. Shri M. Ganesan stressed this point to show as to how the police was after the blood of the appellant and roped him in all the possible cases which ultimately collapsed in the criminal Courts. Shri Shishir Kumar, learned S.D.R. for the respondent supported the order of the Adjudicating Authority.
4. After hearing both the parties and perusing the record we are of the opinion that the appeal deserves to be allowed. From the record we observe that the Customs Authorities never thought it proper to investigate the case after the handing over of the seized silver to them and solely relied on the police story that the appellant was apprehended by the police on the spot and the silver and opium were recovered from the boxes attached to the carrier of the motor cycle and rejected the defence of the appellant saying that there is no support for the defence plea that the appellant had been implicated falsely by the police on the investigation of his rival party and that real culprits have escaped. He further opined that it cannot be believed that the police would be in a position to plant the seized contraband silver weighing 58.090 Kgs. We do not agree with the reasonings of the Adjudicating Authority. In the absence of any investigation on the part of the Customs authorities, we are not prepared to believe the police story as a gospel truth particularly when a part of the police story regarding the said Pragat Singh is itself not believed by the Adjudicating Authority. To say that there was no supporting evidence to show that the appellant was falsely implicated by the police would be putting the cart before the horse because it is the fundamental principle of criminal jurisprudence which also applies to the Departmental proceedings that at least there must be some sort of evidence from the side of the Department to show that the appellant had contravened any provisions of the Customs Act and it is only when such evidence is forthcoming that the appellant is supposed to rebut that evidence. In the instant case the Department have miserably failed to prove the alleged recovery. The opinion of the Adjudicating Authority that it also cannot be believed that the police would be in a position to plant so much silver and opium is also against the experience of life. In the case in hand the probability that the person concerned might have escaped at the time of his apprehension cannot be ruled out and the further probability that the police might have seized the silver as an abandoned property also cannot be ruled out.
5. In the result, we allow the appeal and set aside the impugned order so far as it relates to the appellant.