ORDER
P.S. Bajaj
1. These two appeals have been filed by the appellants against impugned order-in-appeal dated 23.7.98 vide which the Commissioner (Appeals) has affirmed the Order-in Original of the Additional Commissioner ordering the confiscation of the gold of the value of Rs.3,67,416/- under section 111 (d) of the Customs Act and imposing penalty of Rs.25,000/- each , on them under Section 112 of the Act.
2. The facts giving rise to these appeals may briefly be stated as under:
On 23rd August, 1996 on receipt of prior information, the customs officers intercepted on jeep coming form Toothibari Nichnaul Road in the presence of two witnesses and apprehended both the appellants who are traveling in that geep. On conducting their personal search, six gold biscuits of foreign origin valued at Rs.3,67,416/- were recovered and the same were seized. They on interrogation confessed, in their respective statements, of having brought gold biscuits from Katmandu for delivery to a person known as ‘Guru’ of Govind Nagar Kanpur. They further admitted that they had charged Rs.1,000/- as carriage charges besides travelling expenses from that person. During investigations, the particulars of person. During investigations, the particulars of person ‘Guru’ were also ascertained and his real name was found to be Shri Jai Narayain Dixit son of later R.G.Dixit resident of Govind Nagar, Kanpur, But he in his statement denied that he was engaged in the gold biscuits, business. Therefore, show cause notice was issued to both the present appellants for confiscation of the biscuits and for imposition of penalty on the under Section 112 of the Act.Though both no doubt denied the recovery of gold biscuits from their person and retracted their confessional statements made earlier on 24.8.96 for having obtained under duress, coercion but their version was not accepted and the Additional Commissioner (Customs), Lucknow through Order-in-original directed the confiscation of the gold biscuits and imposed penalty of Rs.25,000/- each on the appellants. His order was upheld by the Commissioner (Appeals) through Order-in-Appeal.
3. Ld. Counsel has assailed validity of the impugned order on the ground that there was n o evidence on record to prove recovery of gold biscuits from the person o f the appellants and that their alleged confessional statements were recorded under coercion.Therefore, the impugned order deserves to be set aside.
4. On the other hand, ld. SDR while refuting this contention of the Counsel has argued that confessional statements were made by the appellants voluntarily and the story of having been obtained their statements under duress and coercion was an afterthought and same had been rightly ignored by the authorities below. The impugned order of the Commissioner (Appeals) is perfectly valid.
5. I have gone through the record and heard both the sides.
6. Both the appellants, as is clear from the material on record, were intercepted by the Customs Officers on receipt of prior information while travelling in a jeep on 23.8.96 and on conducting their personal search six gold biscuits of foreign origin valued at Rs.3,67,416/-, weighing 699.84 gm were recovered and the same were seized through a panchnama which was attested by the witnesses. It is also evident from the record that both these appellants in their statements recorded on 24.8.96 admitted the recovery of six gold biscuits from them on their interception by the customs authorities. Their confessional statements constituted substantial pieced of evidence for using the same against them for holding them guilty of carrying gold biscuits foreign origin, in violation of law. Their statements were not hit by the provisions of Section 161 Cr.PC as even ruled by the Apex Court in Naresh J.Sukhwara vs. Union of India, 1996 (83) ELT 258.
7. The plea of the appellants that the confessional statements were extracted from them under coercion and threat by the Customs Officers cannot be accepted being an after thought. They never retracted the statements immediately after making by sending any complaint to the higher authorities, of having been obtained under coercion. They were produced before the Magistrate also and even before him they did not pen their mouth to complain abut use of duress, threat against them while recording their confessional statements. They only after having gone to the jail sent a letter to the Magistrate denying the voluntary character of their confessional statements. That letter was sent by them only on 3.9.96 and had ben rightly observed to be an after though by the authorities below for ignoring the same. The affidavits submitted by them on 18.12.96 along with the reply in defence, had been also been rightly ignored by the authorities below as that these were after thought. Those affidavits were never produced by them before the Magistrate. The after though retraction of the confessional statement s by the appellants could not be legally given any weight by the authorities below. Therefore, confessional statements being substantial piece of evidence were sufficient to establish the case against the appellants. Consequently, the findings of both the authorities below regarding recovery of six gold biscuits of foreign origin from the person of the appellants are perfectly valid and needs no interference in this appeal.
8. In the light of the discussions above, the confiscation of gold biscuits recovered from the appellants, had been rightly ordered under Section 111 (D) of the Customs Act and the impugned order in this regard is affirmed. However, regarding the penalty, Ld.Counsel has contended that since that appellants are poor persons and they even according to the Revenue, were working at that time only as carriers of a third party, the same deserves to be reduced. This contention of the Counsel keeping in view the facts and circumstances of the case, the poverty of the appellants, confiscation of entire gold, deserves t o be accepted. Therefore the penalty amount is reduced to Rs.5,000/- on each of the appellants. The amount already deposited by them in pursuance of the stay order of the Tribunal shall be adjusted towards this penalty amount. Except for this modification in the penalty, the appeal of the appellants otherwise stands dismissed.
(Dictated & Pronounced in the Court)