IN THE HIGH COURT OF JUDICATURE AT PATNA
MISC. APPEAL No.132 of 2008
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COMMISSIONER OF CUSTOMS PATNA, CENTRAL
REVENUE BUILDING - Appellant(s)
Versus
KISHORI PRASAD SARAF- Respondent(s)
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with
MISC. APPEAL No.133 of 2008
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COMMISSIONER OF CUSTOMS PATNA, CENTRAL
REVENUE BUILDING - Appellant(s)
Versus
SURAJ KUMAR - Respondent(s)
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Appearance:
(In M.A. No.132 of 2008)
For the Appellant: Mr. RAKESH KUMAR SINGH
For the Respondent: Mr. S.P.TWEWARI
(In M.A. No.133 of 2008)
For the Appellant: Mr. RAKESH KUMAR SINGH
For the Respondent: Mr. S.P.TWEWARI
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE JYOTI SARAN
ORAL ORDER
(Per: HONOURABLE THE CHIEF JUSTICE)
10. 19.01.2011 These two Appeals under Section 130 of the
Customs Act, 1962 are preferred by the Commissioner of
Customs, Patna against the order dated 31st August 2007
made by the Customs, Excise and Service Tax Appellate
Tribunal, Kolkata (hereinafter referred to as ‘the Tribunal’),
in Customs Appeal Nos. 13 of 2006 and 14 of 2006.
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The matter at dispute is the seizure and
consequent order of confiscation of 490 grams of pure
gold recovered from the body of one Sri Suraj Kumar, the
respondent in Miscellaneous Appeal No. 133 of 2008.
The facts giving rise to the present Appeals
briefly stated are as under;
On 19th April 2008, the aforementioned Sri
Suraj Kumar was intercepted while he was traveling on a
bus from Raxaul to Patna. On interrogation of the said Sri
Suraj Kumar he admitted before the customs officer that
he was carrying four pieces of pure gold weighing 489.500
grams concealed in his rectum. On the admission made
by Sri Suraj Kumar the gold was recovered from his body
and was seized. Upon examination by the laboratory the
said gold was found to be of 24 caret purity worth Rs.
2,49,645/-. The said Sri Suraj Kumar in his statement
recorded under Section 107 of the Customs Act, 1962
(hereinafter referred to as ‘the Act’) disclosed that he was
the employee of one Kishori Prasad, resident of village-
Garawa Mangri, District- West Champaran; that the said
Kishori Prasad had given him the seized gold for carrying
and that the said gold was purchased from Nepal, a
foreign country. After due procedure of issuing show
cause notice and giving opportunity to prove the source of
the gold, the Joint Commissioner of Customs, Patna under
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his order dated 31st January 2005 recorded the finding
that the seized gold was of foreign origin and that it was
illegally brought within the territories of India. In view of
the said finding, gold was ordered to be confiscated and a
penalty of Rs. 5,000/- was imposed upon the carrier Sri
Suraj Kumar and Rs. 20,000/- upon the owner Sri Kishori
Prasad, the respondent in Miscellaneous Appeal No. 132
of 2008. The said order was confirmed by the
Commissioner (Appeals), Customs & Central Excise,
Patna on 19th December 2005 in Appeal No. 344 of 2005
preferred by the aforesaid Sri Kishori Prasad & Sri Suraj
Kumar.
Feeling aggrieved, both Sri Kishori Prasad
and Sri Suraj Kumar preferred Appeal Nos. 13 of 2006 and
14 of 2006 before the Tribunal. The Tribunal, in view of
the lower purity of the seized gold, under the impugned
order dated 31st August 2007, gave the benefit of doubt to
the respondents herein. The Tribunal held that the gold of
much lower purity cannot be held to be of foreign origin.
The fact that there was no medical report or an x-ray of the
carrier was also taken into consideration. In view of the
said finding the Tribunal set aside the order under appeal
with consequential benefit to the appellants.
Feeling aggrieved the Commissioner of
Customs, Patna has preferred the present Appeals.
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Learned advocate Mr. Rakesh Kumar Singh
has appeared for the appellants. He has taken us through
the relevant provisions and the confessional statement
made by the said Sri Suraj Kumar under Section 107 of
the Act. He has submitted that in view of the confessional
statement made under Section 107 of the Act, which is
admissible in evidence, no further proof of seized gold was
required. He has further submitted that the carrier Sri
Suraj Kumar did admit before the Custom Officer that he
was carrying contraband gold concealed in his rectum. In
view of the said admission and provisions contained in
Section 103(8) of the Act, the carrier was not required
either to be examined by a doctor or screened or x-
rayed. In support of his argument, he has relied upon the
judgments of the Hon’ble Supreme Court in the matters of
Surjeet Singh Chhabra Vs. Union of India & Ors.,
[(1997)1 SCC 508]; and of K.I. Pavunny Vs. Assistant
Collector (HQ), Central Excise Collectorate, Cochin,
[(1997)3 SCC 721] and of Commissioner of Customs
(Preventive) Vs. vijay Dasharath Patel, [(2007) 4 SCC
118]. He has also relied upon the judgment of this Court
(Coram: S.K. Katriar and Kishore K. Mandal, JJ.) in the
matter of Commissioner of Customs Vs. Sri Ram Nath Sah
(M.A. No. 629/2007 decided on 18.5.2010).
The Appeals are contested by learned
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advocate Mr. S.P. Tiwary, appearing for the respondents.
He has submitted that any gold which has the purity of less
than 99.9 per cent cannot be a gold of foreign origin. In
view of the lower purity of the seized gold the Tribunal has
rightly given benefit of doubt to the respondents. He has
submitted that in his statement made in reply to the show
cause notice the aforesaid Kishori Prasad, the owner of
the gold did disclose the name of the persons from whom
he had purchased the jewellery, melted the same to
recover purified gold. Nevertheless, the Custom
authorities failed to examine those persons to bring truth
on the record.
We are unable to agree with Mr. Tiwary. The
proposition that gold of lesser purity can never be of
foreign origin is not substantiated before us. Submission
is not supported either by statutory provision or by a ruling
of a Court. It cannot be gainsaid that the said Sri Kishori
Prasad was given opportunity to prove the origin of the
gold which he failed to do. In absence of any proof
produced by the owner Sri Kishori Prasad, in view of the
confessional statement made by the carrier Sri Suraj
Kumar under Section 107 of the Customs Act and in view
of the laboratory report, the finding of contraband gold
smuggled into the country recorded by the authorities
below ought to have been confirmed by the Tribunal. We
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find that the approach of the Tribunal was perfunctory and
casual, not in consonance with the legal provisions.
For the aforesaid reasons, we allow these
Appeals with cost. The impugned order dated 31st August
2007 made by the Customs, Excise & Service Tax
Appellate Tribunal, Kolkata in Customs Appeal Nos. 13 of
2006 and 14 of 2006 is quashed and set aside. The order
of the authorities below is restored.
(R.M. Doshit, CJ.)
(Jyoti Saran, J.)
S.Sb/-