ORDER
Gowri Shankar, Member (T)
1. In the course of their investigations into some smuggling activities the Custom House recorded the statement of Mohan Joma Koli who was found on board a vessel described only as a Karanja type vessel. Koli said that vessel had carried from Dubai 115 bags of contraband silver which it had transferred to another vessel at a point between Khanderi and Thai. Koli said that this was done at the instance of Baliram Thakur, the appellant. The officers located the other vessel & seized it. In three statements recorded on 13.7.1992, 15.7.1992 and 21.7.1992 Koli gave the details of the carriage of silver from Dubai and the transfer to the other vessel. He gave details of the sailing of the vessel etc. and he clearly and categorically named the appellant as a person whose instance carried the ingots. He also identified the photograph of the appellant. The officers also recorded the statement of Kisan Bama Koli who had been named by Mohan Koli as the person who asked him to guard the vessel which was anchored at Elephanta. Kisan Bama Koli stated that he had been asked by his neighbour and the appellant to do the job of transferring the silver and he refused but at the instance gave them services of a khalasa crew member to Mohan Koli. Thakur gave him Rs. 1,000/- for his (Thakur’s) vessels to be taken to Vashi. The order records that the officers were unable to locate the vessel.
2. Thakur was a seaman with the Custom House. He had been absent from his duty and summons issued to him could not be served on him. Notices were issued proposing confiscation of the vessel and penalty on the persons concerned in the order impugned in the appeal the Collector imposed penalty under Section 112 of the Act of Rs. 50 lakhs on Baliram Thakur. Hence this appeal.
3. The advocate for the appellant first raises the contention that statement of Mohan Koli is by itself insufficient to penalise the appellant. He cites in support Supreme Court judgement in Haricharan Kunni and Anr. v. State of Bihar AIR 1964 (2) ELT 344 and the Tribunal’s decision in K.I. Pavunni v. CCE Cochin 1985 ECR 1757 (T). It is not possible to accept this contention. In Naresh J. Sukhwani v. UOI 1996 (62) ECR 366 (SC) the Supreme Court confirmed the imposition of penalty on Sukhawani under Foreign Exchange Regulation Act solely on the basis of statement of another person, who said he had been given the currency by Sukhawani. It has not been shown to us why this decision should not be applied to the facts of this case. This is a later decision than Haricharan Kurmi and Anr. v. State of Bihar. Any Tribunal decision contrary to this cannot be considered good law.
4. It is next contended that Mohan Koli retracted the statements made in his statement and would therefore, reliance on his statement is not proper. Mohan Koli’s statements were recorded on 14th, 15th and 21st July 1992. He was arrested on 22nd July and produced before the magistrate on the next day. On that occasion the magistrate records the contention raised before him that Koli was illegally detained on 12.7.1992 onwards but does not proceed to act further upon it. He has recorded that if the accused was wrongfully detained he may take appropriate action against the officers. The refusal by the magistrate to proceed further upon the contention of the illegal detention is significant. It is evident that he has not considered it fit to accept and investigate it. Illegal detention is a crime punishable by law and any magistrate would, if he was convinced that there was prima facie evidence of such detention would order an enquiry into it. The fact that he had not done so goes against the appellant. The advocate for the appellant was not able to tell us whether Mohan Koli had instituted any proceedings against officers for wrongful confinement. There is therefore, no material to support the contention that Koli’s statement was recorded when he was in wrongful confinement.
5. The decision in K.I. Pavunni and Ors. v. CCE does not support the appellant’s case. The Tribunal found in that case that the statement of the appellant before it was recorded only at 9.30 morning although the seizure of gold was made in the previous evening and evidence recorded indicated that the appellant was willing to give a statement earlier. The Tribunal noted that the appellants statement was recorded after he was kept in the custody of Customs Office for the entire night and found the explanation for the custody and the delay in referring the statement unsatisfactory. The facts here are quite different. As we have seen there is no evidence that the statement of Mohan Koli was being recorded while he was in detention.
6. We also fail to see the relevance to the Tribunal decision in K. Baburao and Others. There the Tribunal found that there was reason to conclude that the appellant before it was kept in unofficial custody during the period when his statements were recorded and therefore, the statements were not to be relied upon as being voluntary.
7. It is next contended that although the appellant was available to the Customs officers from 13.11.1992 and 17.11.1992 and thereafter he was not interrogated or his statement recorded. We fail to see the significance of this contention. The appellant would either have denied or accepted the version of Mohan Koli or declined to say anything. If he denied it would be a statement against Mohan Koli that is in fact the position but if he agreed that would obviously end the matter. The confession that the appellant was in the illegal custody of the department is again irrelevant. His statement too, evaded the admissibility or reliance of any statement given when he was in custody.
8. The next contention is that the statement of Mohan Koli is inadmissible because the mandatory warning embodied in Section 164(2) of the Criminal Procedure Code was not admissible. Andhra Pradesh High Court’s judgement in Assistant Collector v. Duncan Agro Industries Ltd. was cited. Section 164(2) of the Criminal Procedure Code enjoins upon a magistrate before recording any confession to explain to the person making it that he is not bound to make confession and that he does so it may be used as an evidence against him. It is thus safeguarded a person aware of the law and of the consequence thereof. The defence that the caution in the section was not administered may be available to a person to question the admissibility of a confessional statement made by him being used against him. In the present case, statement of Mohan Koli was not against him. This decision therefore does not apply. The judgements cited by the advocate viz. Dagdu and Ors. v. State of Maharashtra 1977 (SC) 1579; Mulchand Sampatraj Shah v. Dayashankar, Assistant Collector of Customs and Ors. and K.V. Jesudasan v. CC 1990 (31) ECR 690 were all to the effect that either the confessional statement of co-accused may not be used without corroboration against another accused or the retracted statement may not be used against a retracted confession. The first issue, has to be decided in the light of the Supreme Court judgement in Naresh J. Sukhawani v. UOI and the second does not arise in these proceedings.
9. The departmental representative points out there is corroboration to some extent the statement of Mohan Koli, the statement of Kishan that the appellant had engaged a vessel for the purpose of carrying contraband.
10. In our view, therefore, the evidence in the present case is sufficient to come to the conclusion that the appellant was liable for penalty under Section 112. While the penalty of Rs. 50 lakhs is within the limits of the value of the smuggled goods being Rs. 10 lakhs no particular reason imposing maximum penalty permissible under law. Although perhaps the fact that the appellant was employed by the department in connection with the prevention and detention of smuggling to which had made reference in his order weighed with him. Even so we are of the view that the penalty is excessive and we reduce it to Rs. 8 lakhs. The appeal is thus allowed in part.
(Dictated in court).