ORDER
K. Gopal Hegde, Member (J)
1. The revision applications filed before the Central Government against the Order bearing in 252 to 2255 of 1980, dated 31st December, 1980, passed by the Central Board of Excise and Customs, statutorily stood transferred to the Tribunal for being heard as appeals.
1. The facts necessary for the disposal of these appeals may be stated as under:
On secret Information the officers of the Customs Preventive Collectorate, Bombay, seized 9 packages of textiles of foreign origin valued at Rs. 1,67,425/- from the uninhabitated dilapidated premises at Ulhasnagar Camp No. II. They also recovered 29 similar packages of textiles of foreign origin concealed under dry grass and thorny shrub from a ditch near the residential premises of one Shri Ramesh alias Hansraj at Ulhasnagar Camp No.lll. Besides the above packages the officers seized two Ambassador cars bearing Nos. MMD 4897 and MMB 7540 found abandoned near the ditch. On inspection of the seized cars some dry grass similar to the dry grass used for concealing 29 packages were found in the luggage boot of both the cars. On enquiry the officers came to know that the Car No.MMD 4897 was registered in the name of one Shri Hussein Kassam Mukadam and the Car No. MMB 7540 was registered in the name of one Shri Abdul Rashid Abdulla. Further enquiries revealed that the registered owners were fictitious persons and transfers had been effected in fictitious names.
On secret information that the appellants Lachman Sobrajmal Sajnani (for short Lacchu) and Shri Purshottam Gangadas Belani (for short Pishu) were involved in the smuggling of the goods under seizure alongwith appellant Shamshi, a watch was maintained at Mulund Octroi Naka for the car of Lacchu bearing No.MRX 5016. On 20.11.77 at about 3.45 hours the officers intercepted the above car which was proceeding towards Bombay. Both Lacchu and Pishu were in the car alongwith one shri Ashok Lakhimal Vijirani, brother-in-law of Lacchu. The search of the car resulted in recovery of one page of an exercise book containing accounts of foreign textiles concealed under the front seat. The statements of Lacchu and Pishu were recorded. Among other things, Lacchu stated that appellant Allauddin Shamshi had approached him to arrange for storage and disposal of smuggled textiles and accordingly he had contacted .Hansa Dada and Pishu for storage and disposal of the smuggled goods. He also gave the telephone number of the appellant Shamshi. He further disclosed that the appellant Shamshi had brought the goods in Truck No. 6667 to Shilphata and from there the driver of Hansa Dada took the truck to Ulhasnagar Camp in and had concealed the goods.
Pishu inter alia stated that he was to sell the smuggled foreign textiles and for this purpose he had met Hansa Dada on 13th, 14th and 19th November, 1977. He had also admitted that the sheet of paper seized from the Car No. MRX 5016 on 20.11.1977 contained particulars of smuggled textiles and entries are in his handwriting. He also revealed that some more packages are lying concealed in a room in a barrack near the residence of Hansa Dada and also pointed out the premises. In pursuance of the information of Pishu, the Customs officers searched the room in question and seized the 2 packages containing smuggled textiles. The investigation revealed that the said room was in the occupation of one Nandklshore Nathlal Nama alias Chipa and when he was away at Rajasthan some unknown per-sons had replaced the lock and concealed the seized packages in the said room.
Further investigation revealed that the truck number 6667 belonged to the appellant Shamshi. It was registered in the fictitious name of one Abdul Rashid Ab-dulla. Efforts were made to trace the truck and it was finally traced on 6.3.1978. The driver of the truck Appa Shankar Gaikwad and the cleaner Prakash Mahadeo Shinde stated that the truck belonged to one Mamoo and Mamoo was none other than the appellant Shamshi whose photograph they identified. The mechanic Ibrahim who had earlier repaired the truck also identified the photograph of the appellant Shamshi and stated that it was the appellant Shamshi who had purchased the spare parts required for repairs of the truck.
In the search of the residential premises of the appellant Shamshi, 2 cash memos for issue of petrol at Dhulia on 4.6.77 and at Shivpuri on 5.6.77 for the car No.MMD 4897 were found and they were seized. The appellant Shamshi denied his ownership of the car MMD 4897 as well as the truck No. MHT 6667 and further denied his connection with the seized goods. He, however, stated that the two petrol bills related to the petrol purchased by him for a private taxi which had engaged near Pritam Hotel, Dadar.
The Addl. Collector of Customs (P), Bombay, who held the adjudication, ordered absolute confiscation of the seized 40 packages of smuggled textiles and the truck No.MHT 6667 as well as the 2 abandoned cars and the car No.MRX 5016 in which Lacchu and Pishu were found travelling at the time of its interception. He imposed a penalty of Rs. 25,000/- on the appellant Shamshi and Rs. 70,000/- each on the appellants Lacchu and Pishu. He further imposed penalty of Rs. 10,000/- on one Shri Ramesh alias Hansraj.
Being aggrieved by the order of personal penalty imposed on the 4 persons and confiscation of the car No.MRX 5016, the 3 appellants herein and Ramesh alias Hansraj filed 4 different appeals before the Central Board of Excise and Customs. The Board clubbed all the 4 appeals and passed a common order confirming the order passed by the Additional Collector. As stated earlier, feeling aggrieved by the Board’s order, the present appellants filed revision applications before the Government of India which statutorily stood transferred to the Tribunal.
Before the Board as well as before us the challenge was restricted to the personal penalties imposed on the 3 appellants and the order of confiscation of the car No.MRX 5016. None of the appellants challenged the order of absolute confiscation of the seized textiles or the two Ambassador cars bearing MMD 4897, MMB 7540 or even the truck MHT 6667.
2. Appearing for the appellants Lacchu and Pishu, Shri J.B. Raichandani contended that there was no evidence whatsoever to connect these two appellants with the smuggled goods. They were in no way concerned with the seized goods. They had not come to possession nor in any manner dealt with the said goods. The car No. MRX 5016 belonged to Lacchu and the said car was not used in the transport of smuggled goods or in the carriage of smuggled goods and, therefore, the same could not be confiscated. The two statements relied on by the additional Collector and the Board, according to Shri Raichandani, were not voluntary statements of Lacchu and Pishu. They were unsigned and, therefore, they are inadmissible in evidence. The statements also do not implicate the appellants. They are exculpatory and, therefore, he pleaded that the penalties on the two appellants may be set aside. To substantiate his contention that the statements are not voluntary, Shri Raichandani submitted that both the statements do not bear the signature of the appellants. He further submitted that further statements of these two appellants were recorded on 22.11.77. At that time the appellants were not confronted with their earlier statements and if the earlier statements dated 20.11.77 were made by the appellants, the necessity to record their further statements of identical facts on 22.11.77 would not arise. The customs authorities have put into the mouths of the appellants the information which they had. It was also contended by Shri Raichandani that the car No.MRX 5016 was confiscated only because of a piece of paper containing accounts of some textiles were found and on the ground that dry grass similar to the grass used for hiding the packages in the ditch were found in the luggage boot. But then the Panchnama prepared at the time of seizure did not disclose that any dry grass was found in the boot of the car No. MRX 5016. The authorities below, according to Shri Raichandani, mixed up the facts. It was only in the other two abandoned car, dry grass were found and not in the car MRX 5016. As regards the paper containing certain accounts, Shri Raichandani urged that no efforts were made to co-relate the said accounts with the seized goods. In any case, that piece of evidence is insufficient to order confiscation of the car. In order to confiscate the car, there should be positive evidence that the car was used in the carriage of smuggled goods. But such an evidence is lacking.
3. Shri Parlkh appearing for the appellant Shamshi made several submissions. They may be summarised as under:
(a) There is no legal evidence to establish that the appellant Shamshi has anything to do with the textile packages seized in the case.
(b) The statements of Lacchirand Pishu relied on by the Department are unsigned and they cannot be considered as voluntary.
(c) In his statement Lacchu did not Implicate the appellant Shamshi. In his subsequent statement Lacchu did not implicate the appellant.
(d) There is no corroboration of the unsigned statement of Lacchu either by Pishu or by any other witness.
(e) From the provisions of Section 138(b), it is clear that the statements are required to be signed and if the statements are not signed, they cannot be made -use of and in any case, the statements became suspect and not voluntary. Shri Parlkh urged that in the statements or below the statements no reason is assigned as to why Lacchu and Pishu did not sign the statements.
(f) If Lacchu and Pishu had made statements on 20th November 1977, there is no reason to record identical statements on 22.11.77 and 28.11.77. This again shows that the earlier statements are not the statements of Lacchu and Pishu and if the earlier statements are not admissible in evidence, there is no other evidence to implicate the appellant Shamshi. In support of his contention that the statements dated 20.11.77 of Lacchu and Pishu are not their statements, Shri Parikh contended that in the subsequent statements, family history of both the persons were again recorded. If family history were already given as per the statements of 20.11.77, there was no need to record again the family history in the subsequent statements. Significantly, neither of them was asked as to their previous statements. This also shows that the previous statements were not their statements.
(g) The appellant Shamshi had requested to cross-examine all the witnesses including customs officers, but the cross-examination was not allowed and, therefore, the appellant’s case was prejudiced and there was denial of principles of natural justice and as such the order of the Additional Collector and confirmed by the Board is vitiated. (h) It was next contended that Lacchu and Pishu are co-accused or accomplices. Therefore, their evidence required independent corroboration. But then no such independent corroboration were forthcoming and as such the Collector as well as the Board ought not to have relied on the statements of Lacchu and Pishu.
(I) The Board and the Additional Collector failed to take into consideration that in the signed statement of Lacchu and Pishu, they did not implicate the appellant. The Board and the Additional Collector committed an error in coming to the conclusion that the two abandoned cars and the truck MHT 6667 belonged to the appellant Shamshi. The statements of the so-called driver and cleaner as well as the Mechanic ought not to have been relied upon, firstly, even according to their statements, the driver and cleaner were in service after sometime in December 1977 and January 1978 and the alleged incident was much earlier and there was no evidence as to who was the owner of the vehicles in question at the time of alleged incident. Secondly, that the said 3 persons have not identified the appellant. No efforts were made by the customs authorities to get the appellant identified by those persons even though the appellant has been visiting the custom house for many days. The identification of photograph is no identification at all and identification parade ought to have been held. There is no evidential value for the identification through photographs. The Additional Collector and the Board ought to have accepted the explanation of the appellant regarding the two petrol bills and particularly when these bills relate to the month of June 1977, whereas the seizure was in November 1977. The burden of establishing that the truck as well as the two cars belonged to the appellant is entirely on the Department and the Department had failed to establish the said burden by any satisfactory evidence. There is no burden on the appellant to disprove that the vehicles belonged to him. The Additional Collector as well as the Board failed to bear in mind that in the case of circumstantial evidence, the circumstance should not only be fully established, they should be consistent with the guilty of the appellant and should be inconsistent with his innocence. But then the circumstance relied on by the authorities below are inconclusive in character and nature and in any case they are not consistent only with the hypothesis of the guilt of the appellant. Shri Parikh therefore prayed that the penalty imposed on the appellant Shamshi may be set aside.
4. Shri Pattekar appearing for the Respondent, however, submitted that even though the statements of Lacchu and Pishu were unsigned, they are voluntary statements and, therefore, they can be relied upon. Relying on the decision of the Kerala High Court reported in 1984 (15) E.LT. page 129, Kollatra Abbas Haji v. Government of India and Ors., Shri Pattekar submitted that in an adjudication proceeding the statements of the co-ac-cused are relevant and could be relied upon. Shri Pattekar further submitted that the smuggling activities being carried out in clandestine way, it is exceedingly difficult for the prosecution to prove facts which are especially within the knowledge of the opponent or the accused and therefore on the principles underlying under Section 106, Evidence Act, the burden to establish this fact is cast on the person concerned. In this connection Shri Pattekar relied upon the decision of the Supreme Court in Collector of Customs v. D.Bhoormull, AIR 1974 S.C. page 859. It was further submitted by Shri Pattekar that the Additional Collector had considered the various contentions including the contention regarding the denial of principles of natural justice in not allowing cross-examination and had recorded very valid reasons which was accepted by the Board and, therefore, the contention of the appellant that there had been denial of principles of natural justice and, therefore, the orders of the Additional Collector and the Board are vitiated is untenable. In other respects, Shri Pattekar relied on the reasonings of the Additional Collector and the Board.
5. We have carefully considered the submissions made on both the sides and perused the records of the case. The points that arise for our consideration are:
(i) Whether the facts and circumstances established in the case did not justify im-position of penalties on the 3 appellants; and
(ii) Whether the confiscation of the car bearing No.MRX 5016 was not illegal.
Point No. (i). – None of the appellants disputed the seizure of 9 packages containing foreign textiles from an uninhabitated dilapidated building at Ulhasnagar. Similarly, none of them disputed the seizure of another 29 packages found hidden in a ditch covered with dry grass and thorny shrub. Further, the seizure of 2 more packages from a room was also not challenged. None of the appellants contended that the seized packages did not contain textiles of foreign origin. Again the appellants did not dispute that the 2 Ambassador cars, one bearing No.MMD 4897, another bearing No.MMX 5016 were found abandoned near the place wherefrom 29 packages containing foreign textiles were seized. They also did not dispute that the dry grass were found in the luggage boots and seats of the two cars. Since the appellants did not challenge the confiscation of the said two cars, the Department’s case that those cars were used in the carriage of smuggled textiles stand established. Similarly, none of the appellants challenged the confiscation of the truck bear-ing No.MHT 6667. The confiscation was ordered that the truck was used in the carriage of smuggled textiles. Therefore, that part of the Department’s case also stood established. The plea of the appellants has been that they have nothing to do with the seized textile goods or the abandoned cars or the seized truck.
6. In order to establish the nexus between the appellants and the seized contraband goods, the Department had relied on the statements of the appellants Lacchu and Pishu, the statements of the driver and cleaner of the truck MHT 6667, the statement of the Mechanic who repaired the truck MHT 6667, the statement of transport agent Manek-ji Laljt Soni, recovery of 2 petrol bills for filling petrol to the car bearing No.MMD 4897 from the residence of the appellant Shamshi, the recovery of a page from exercise book containing accounts of packages of textiles from underneath the front seat of the car bearing No.MRX 5016. The Department further relied upon the written explanation of the appellant Shamshi regarding the two petroTbHIs recovered from his residence. The Department also relied upon the movements of Lacchu and Pishu at an unusual hour, viz., at about 3.45 A.M. The department relies upon the circumstance that all the 3 appellants were under detention under MISA earlier to the present offence.
7. All the appellants were supplied with the copies of the statements of the various witnesses and also the documents on which the Department relied. The appellants were called upon to show cause why personal penalties should not be imposed on them and why the seized goods as well as the vehicles should not be confiscated. The reply of the appellant Shamshi is somewhat interesting. At one breath he stated that he denies that he has any connection or concern with or interest In any of the seized cars and truck. At another breath he stated that in none of the said vehicles any contraband goods was found and there was no evidence to show that any of the said vehicles had been used for carriage of smuggled goods. In the show cause notice issued to this appellant, it was specifically alleged that the cars and the truck became liable to confiscation under Section 115. Though the appellant is entitled to take inconsistent pleas, the plea taken are irreconcilable. If the appellant has nothing to do with the seized vehicles, it was not at all necessary for him to contend that the vehicles were not used for the carriage of the contraband goods.
8. In the reply to the show cause notice, the appellant Shamshi did not contend that Lacchu and Pishu are not known to him or that they were not acquainted with each other. The contention taken was that they stand as co-accused and, therefore, their statements cannot be used against him. The further contention was that since their statements are not signed, they cannot be considered as statements which could be made use of. So far as Appa Shankar Gaikwad, Prakash Mahadeo Shinde and Manekji Lalji Soni are concerned, the appellant Shamshi in his reply to the show cause notice, stated that-he does not know them. He further contended that his identification by photographs by those persons are not trustworthy. The appellant Shamshi, no doubt, in his reply to show cause notice, sought cross-examination of all the officers as well as Lacchu and Pishu, Appa Shankar Gaikwad, Manekji Lalji Soni and Anr.. In his reply to the show cause notice, the appellant Shamshi nowhere contended that there is any ill-will between Lacchu and Pishu and the other 3 persons who have implicated him. He did not even allege that there was any valid reason for those persons to implicate him. With this, we will now consider whether the 5 persons on whose statements the Departments relied did implicate the appellant Shamshi. If implicated, whether their statements can be made use of against the appellant Shamshi and whether the denial of cross-examination has in any way affected the probative value of the statements of the said five persons.
9. Undlsputedly the appellants Lacchu and Pishu were found travelling in the car of Lacchu on the night of 20.11.1977 and the car was intercepted at about 3.45 A.M. near Mulund Octroi chowki. Besides these two, the brother-in-law of Lacchu one Shri Ashok also was found in the car. A page of note book containing certain accounts of textiles was recovered from underneath the front seat. The writing was admitted to be that of Pishu. The statements of Lacchu and Pishu were also recorded on the same day, apparently, Im-mediately after the Interception of the car. In his statement, among other things, Shri Lac-chu stated that he was doing small business in smuggled goods prior to his detention in MISA In July 1975. He has further stated that he was in Nasik Jail and at that time he had come in contact with one Hansa of Ulhasnagar. He was released from MISA in July 1976. About 20 days prior to that date the appellant Shamshi contacted him on telephone and asked him to meet near Rupam Talkies on 2nd or 3rd November. He reached the said spot and Shamshi was there. Shamshi told him that he would start work. He agreed with Shamshi. Thereafter, Shamshi told him to keep in contact and also gave his telephone number. Thereafter he went on contacting Shamshi and on 11.11.1977 Shamshi told him that arrangements has been made and asked him to meet at Shilphata at 8 o’clock in the morning on Saturday, the 12th November 1977. When he reached that place along with Pishu, Hans also came there. Shamshi also came in his car which was followed by truck bearing No.MHT 6667. The driver of the truck got down and the driver brought by Hans boarded the truck. Thereafter, Hans, Pishu and he himself followed the the truck. After reaching Ulhasnagar, Hans unloaded the truck at Camp No.lll and Camp in . In all there were 80 to 85 packages in the truck. He further stated that he had fixed Hans to arrange the storage of those goods. He also stated that Pishu had to do the distribution of goods and collect money and pay to Shamshi. For this part of the work of Pishu, he was responsible. It was also stated by him that it was previously decided that he would be paid Rs. 25/-per Boja (package). He further stated that the piece of paper which was found underneath the seat contains the writing of Pishu and it gives the details of the goods. It relates to 21 packages. Pishu while corroborating the statement of Lacchu regarding the Interception of the car, inter alia, stated that on 12th or 13th November Lacchu met him at Chembur Road and told that goods had come and whether he was interested in purchasing. He expressed his willingness and it was decided both of them will go to Ulhasnagar on 13.11.1977 and meet Hans and on 13.11.1977 they met Hans who was introduced to him by Lacchu. Hans read out the particulars of the goods available with him and he wrote down the particulars in a piece of paper and that was the paper which was found in Lacchu’s car. Pishu, however, did not implicate Shamshi.
10. The statement of Hans was also recorded. He denied the entire Department’s case including his acquaintance with Lacchu and Pishu. The cleaner of the truck Prakash Mahadeo Shinde stated that he was employed by the driver Appa Shankar Gaikwad on a salary of Rs. 100/- per month. He was shown a photograph and he identified the photograph which according to him was the photograph of Mamoo who used to sit with them in their trips to various places and also sometimes drive the truck No. MHT 6667. The signature of the witness was taken on the reverse of the photograph. In his statement Manekji Lalji Soni stated among other things that he is working as a commission agent supplying trucks to the transport companies. He was also getting commission from the owners or driver of the truck. One Mamoo was the driver of the truck MHT 6667 and he was giving him loads for about 5 months prior to the statement which was recorded on 6.3.78. He also identified the photograph of Mamoo and signed the photograph. In his subsequent statement recorded on 7.3.78, he identified few more photographs of Mamoo. He also stated that along with Mamoo he had gone to the garage of Mohan Mistry for the repairs of the truck No. MHT 6667. He further stated that he accompanied Mamoo for pur-chase of the spare parts. It was also in his statement that he used to make payment to driver and cleaner of the truck No. MHT 6667 and the payments so made by him, he used to recover from Mamoo. In his statement Syed Ibrahim alias Mohamed, the mechanic stated that he knew one Mamoo who had come with the truck MHT 6667 for repairs. Mamoo had claimed that he was the owner of the truck and during the first eight days he had come alongwtth the driver Shankar Gaikwad. He too identified the photograph. The driver of the truck Appa Shankar Gaikwad stated that Abadul Rashid alias Abdulla’s man one Mamoo used to be with them in the truck. He was paying his salary. He also stated about the truck MHT 6667 having been taken to the garage of Mohan Mistry for repairs. He too Identified the photograph of Mamoo.
11. The appellant Shamshi has not denied the recovery of two petrol bills for filling petrol to the seized Ambassador Car No. MMD 4897. His explanation was that it was for a private taxi engaged by him at Dadar for going to UP. to attend his brother’s marriage. He, however, was unable to give the name of the driver or the owner of the private taxi.
12. If the statements of Lacchu and the other 3 persons, viz., the driver of the truck, the motor mechanic, the commission agent and the cleaner are to be accepted, then the nexus between the appellant Shamshi and the seized goods fairly gets established. In his reply to the show cause notice, the appellant had taken a specific contention that he does not know the driver, the cleaner, the commission agent and the mechanic. The Additional Collector, however, had accepted their statements. Since the appellant had not been supplied with the copies of the photographs identified by those four persons and those four persons had not identified the appellant Shamshi in person, we may discard their evidence. But then Lacchu had squarely implicated the appellant. His statement was accepted by the Additional Collector as well as by the Board. The contention of Shri Parikh was that the statement dated 20.11.77 wherein Lacchu had implicated the appellant is no statement at all because it was not signed. His further contention was that Lacchu stands as an accomplice or co-accused. Therefore, his statement requires independent cor-roboration and such an independent corroboration is lacking. His further contention was that the appellant Shamshi had requested for cross-examination of Lacchu, which has been unreasonably denied and therefore the statement of Lacchu which is not tested by cross-examination shall have to be discarded, as not having any probative value.
13. As stated earlier, a show cause notice preceded adjudication. Appellant Lac-chu also filed reply to the show cause notice. It is dated 1.8.78. In his reply to the show cause notice the appellant Lacchu did not contend that his statement dated 20.11.77 was not recorded. He also did not contend that it was not his voluntary statement. He, however, contended that the car MRX 5016 belonging to him was not liable to confiscation as it was not used in the carriage of smuggled goods. He further contended that no penalty can be imposed on him as he has no connection or concern with the smuggled goods. Having regard to the contention of Shri Lacchu, the fact of recording his statement on 20.11.77 by the customs authorities remains undisputed. This statement was not recorded in pursuance of any summons issued to Lacchu. In other words, it was not a statement under Section 108. Apparently it must have been a statement under Section 107. Neither Section 107 nor Section 108 specifically provides for obtaining of signature of the deponent to the statement. As regards the sustenance sought to be derived by the learned advocate by referring to Section 138(B), suffice it to say that the signed statement alone can be made use of and not unsigned statement for the purposes mentioned in that Section. But from that Section it does not follow that the statement should be signed by the witness before it can be made use of for the purposes other than the purposes specified in Section 138(B). When Lacchu did not deny having made such a statement and when he did not contend it was not a voluntary statement, the appellant Shamshi cannot be heard to say that it is no statement or it was not voluntary statement of Lacchu. Though in his statement the appellant Shamshi contended that he did not know Lacchu, in his reply to the show cause notice, he did not urge that Lacchu was not known to him, though In the case of driver, cleaner, mechanic and commission agent, he has specifically pleaded that they are not known to him. As the law did not provide that the statement should be signed, the contention of the learned advocate that the statement of Lacchu dated 20.11.77 cannot be accepted on that ground is not tenable in law.
14. The further contention of the learned advocate that Lacchu stands as a co-accused or accomplice and, therefore, his statement requires independent corroboration is also cannot be accepted. The provisions of the Evidence Act as well as the provisions of Criminal Procedure Code in terms are not applicable to adjudication proceedings. Just because two or more persons were together proceeded with, they do not stand as co-ac-cused. Even if we are to consider the said persons as accomplices, neither the Evidence Act nor any other law prohibits accepting of the uncorroborated testimony of an accomplice. The prudence, however, demands corroboration of the evidence of an accomplice. The adjudicating authority as well as the Board relied on the evidence of Lacchu. The corroboration contemplated under law is no doubt independent corroboration but not necessarily of direct evidence. The corroboration could be by circumstantial evidence also. The statement of Lacchu was that the appellant Shamshi brought certain packages in a truck. That truck was later driven by the driver of Hans to Ulhasnagar and the contents were loaded at two places. The customs authorities recovered 9 packages of foreign goods from one uninhabitated premises; another 29 packages in a ditch and the ditch was covered with dry grass and thorny shrubs. They also found two abandoned cars. The luggage boot of the two cars had dry grass similar to the grass used for concealing packages in the ditch. The customs later traced the truck. The above circumstances do corroborate the statement of Lacchu. In D. Bhoormull’s case AIR 1974 S.C. 859 the Supreme Court observed “it is exceedingly difficult If not absolutely Impossible for the prosecution to prove facts which are especially within the knowledge of the opponent or the accused and, therefore, the prosecution is not obliged to prove those facts as parts of Its primary burden. The smuggling is clandestine conveying of goods to avoid legal duties. Secrecy and stealth being Its covering guards, it Is impossible for the Preventive Department to unravel every link of the process. Many facts relating to this illicit business remain in the spe-cial or peculiar knowledge of the persons concerned in It. On the principle underlying Section 106, Evidence Act, the burden to establish those facts is cast on the person concerned; and if he fails to establish or explain those facts, an adverse inference of facts may arise against him, which coupled with the presumptive evidence adduced by the prosecu-tion or the Department would rebut the Initial presumption of Innocence In favour of that person and in the result prove him guilty…”
15. In the show cause notice issued to Lacchu and others, it was specifically alleged that Lacchu did not sign the statement being afraid of reprisal by Shamshi and others. Lacchu had filed his reply. He has not controverted the above allegation contained in the show cause notice. He also did not question the correctness of the statement nor did he contend that the statement was not voluntary. Even in his reply to the show cause notice, he did not retract that statement. If the statement was obtained under threat, promise or inducement, the officer who recorded his statement could have certainly obtained the signature of Lacchu also. The very fact that Lacchu did not sign his statement supported the allegation in the show cause notice that he was afraid of reprisal by the present appellant.
16. Since we are satisfied as to the truthfulness of Lacchu’s statement which squarely and fairly implicates the appellant Shamshi and also to certain extent corroborated with the circumstantial evidence, the Additional Collector and the Board, In our opinion, were justified in placing reliance on the statement of Lacchu. We, therefore, reject the contention of Shri Parikh that Lacchu’s statement cannot be made use of against the appellant Shamshi.
17. The only other aspect that remained for consideration is that the appellant Shamshi was not allowed cross-examination of Lacchu. The Additional Collector had given certain reasons for not allowing cross-examination. We are not impressed by those reasons. But then merely because Lacchu was not tendered for cross-examination, his statement would not become inadmissible or will have no probative value. If the contention of the learned advocate is to be accepted, Lacchu would stand as a co-accused. If that be so, adjudicating authority cannot compel Lacchu to subject himself to cross-examination by another co-accused. If in the circumstances Lacchu had not been tendered for cross-examination, no grievance can be made thereof. It is significant to note that in his reply to the show cause notice Shamshi did not allege that Lacchu has any axes to grind against him or that he had any enmity or bias towards Shamshi. Except stating that he requires Lacchu for cross-examination, no reason has been assigned in the reply to the show cause notice on what aspects the appellant desired cross-examination of Lacchu.
18. Since the appellant had-not alleged any enmity or ill-will against Lacchu, the denial of cross-examination could not have rendered the statement of Lacchu inadmissible. It is not part of the principles of natural justice that every informant should be offered for cross-examination. The non-tendering of Lacchu for cross-examination in our opinion did not prejudice the appellant’s defence. We, therefore, reject Shri Parikh’s contention in this regard.
19. On a careful consideration of all the facts and circumstances, we see no reason to interfere with the concurrent finding of facts arrived at by the Addl. Collector and the Board. We, therefore, reject the appeal of Shri Qutubuddin Allauddin Shamshi.
20. As regards Lacchu and Pishu are concerned, their statements are self-condemning. We have already observed earlier the unsigned statements of these two persons are voluntary statements and the contents are true. Both of them have taken active part in concealing the goods. Further, according to their own statement, they were to dispose of the smuggled goods. In the circumstances, we do not see any compelling reasons to interfere with the orders passed by the lower authorities. We, therefore, reject their appeals in so far as they relate to the penalty on them.
21. Shri Lacchu had challenged the confiscation of the car No. MRX 5016. The Additional Collector as well as the Board proceeded on the footing that during the examination of the car, dry grass similar to the dry grass found in the ditch were found in the luggage boot of the car. But then the seizure panchnama does not show that any such grass was found in this car. Only the incriminating document found in the car was torn page of an exercise book containing some accounts of textiles. This circumstance would not be sufficient to order confiscation of the car. There should be positive evidence that the car was used in the carriage of smuggled goods. No such positive evidence is forthcoming. The Addl. Collector and the Board in our opinion committed an error in ordering confiscation of this car. We, therefore, set aside that part of the order of the Additional Collector and confirmed by the Board. The car shall be released to the registered owner.
22. In the result, the appeals of Pishu and Shamshi are rejected. The appeal of Lacchu is allowed in part. The penalty imposed on him is confirmed. The order of confiscation of the Car No. MRX 5016 is set aside. The car shall be released to its registered owner.