ORDER
K. Gopal Hegde, Member (J)
1. The Revision Application filed before the Government of India against the order No. 1375-A of 1980 dated nil passed by the Central Board of Excise & Customs statutorily stood transferred to the Tribunal for being heard as an appeal. The facts necessary for the disposal of this appeal briefly stated are as under :-
2. On 9.9.1978 at about 1.55 a.m., the Air Customs Officer in the Customs Import Baggage Hall noticed the present appellant and another each holding a brief case and the brief case held by the appellant appeared abnormally heavy. He could notice blood shot in the finger tips caused due to pressure of the handle of the brief case. Their movements aroused his suspicion and therefore he stopped the appellant and another. When questioned as to why they were inside the baggage hall the appellant and the other told the officer that they were the officers of the CBI and they had come to see one Mr. Chavan. They also produced the identity cards. The appellant also placed the brief case he was carrying on the ground near his feet. When questioned about the contents of the brief case, the appellant disowned the same. The officer, therefore, informed the Assistant Collector Airport and others. The Assistant Collector also questioned the appellant and he denied the ownership of the brief case and he appeared nervous and also gave vague replies. Thereafter at the instance of the Assistant Collector, the contents of the brief case was examined in the presence of panchas and found to contain Indian currency note of Rs. 50/- denomination, wrist watches of foreign origin numbering 405 in all collectively valued at Rs. 30,675/- (cif) and Rs. 61,350/- (m.v.). The said goods were seized under a panchnama in the reasonable belief that they were liable to confiscation under the C.A. The brief case was also seized.
3. In the course of investigation, the residential premises of the appellant was also searched on the same day in the presence of panchas under a search warrant. During the search, one black echolac brief case similar to the brief case seized in the baggage hall, 2 Omex lady wrist watches, one camera, one kakonet, camera flash, and certain other things were found. The 2 wrist watches, camera, flash, the black echolac brief case and a bottle of scotch whisky were seized under a panchnama.
4. The statement of the appellant was also recorded on the same day under Section 108. The appellant inter alia stated that he had come to the airport on official duty and on the previous day namely on 8.9.1978 he had requested his colleague Deshpande to come to his house and along with Shri Deshpande he came to Airport and reached the Airport around midnight. He also stated that he and Deshpande remained at immigration counter on the import side from 12.15 a.m. to 12.45 a.m. and when questioned as to their presence in the Import Baggage Hall, he and Deshpande stated that they were on secret watch. When questioned as to the nature of the secret watch, the appellant appeared to have stated that he would reply to his superior officers. In his further statement recorded on the same day he stated that a black echolac brief case seized from his residence was given to him by his friend Shri T.S. John working in Saudi Arabia who was formerly employed in the CBI. The camera and the flash were given to him by Mrs. John sometime in March or April 1978. He further stated that the two wrist watches seized from his residence were purchased by him 4 or 5 months earlier. He admitted that the said wrist watches were identical to the watches seized at the airport from the brief case.
5. After completion of the investigation, a show cause notice was issued to the appellant and another. The Additional Collector of Customs after affording personal hearing and after consideration of the defence ordered confiscation of 407 wrist watches as well as the camera and flash besides the brief case used for smuggling wrist watches. He also imposed a penalty of Rs. 5,000/- on the appellant.
6. Being aggrieved by the order of the Additional Collector, the appellant preferred an appeal before the Central Board of Excise and Customs unsuccessfully and hence this appeal.
7. During the hearing of this appeal, Shri Ved appearing for the appellant vehemently urged that the Central Board of Excise and Customs had not properly appreciated the various contentions raised on behalf of the appellant. The Board as well as the Collector failed to appreciate that the appellant could have pointed out to an Arab passenger whom the Customs Officer have suspected.
8. The Board and the Collector made much of the inconsistencies and the explanation as to the appellant’s presence in the baggage hall but then the inconsistency in the explanation would not be sufficient to bring home the guilt or to connect the appellant with the contraband goods.
9. The Collector as well as the Board were unjustified in drawing an inference that recovery of echolac brief case and two wrist watches found in the residence of the appellant would be sufficient to corroborate the case of the Department. Both the authorities failed to notice that similar brief cases are manufactured in thousands.
10. The Collector as well as the Board failed to bear in mind that the burden of establishing that the seized bag and the contraband belonged to the appellant was on the Department and they had wrongly cast the burden on the appellant just because his explanation as to his presence in the baggage hall was found to be inconsistent.
11. Both the authorities failed to appreciate the explanation given by the appellant as to how he came in possession of an echolac bag and two wrist watches seized from his residence.
12. Both the authorities failed to appreciate that it is a well known fact that miscellaneous goods of foreign origin like handbag, camera, wrist watches, are freely available in India.
13. The Board as well as the Collector further failed to appreciate that at the relevant time the appellant was a CBI officer and if he was carrying a echolac suitcase he would not have moved about in the baggage hall. He would have straightaway walked out as he had identity card.
14. There was no material brought on record to show from whom the appellant got the bag containing contraband wrist watches. In the absence of such evidence it would not be possible .to connect the appellant with the seized handbag.
15; It was next contended that the evidence of the Customs Officer that he noticed bloodshot in the finger tips of the appellant cannot be believed. If the appellant as taken by the officer was holding the echolac bag, the finger tips would have been inside and nobody would have noticed it.
16. It was also urged that the Collector as well as the Board failed to take into consideration the clear inconsistencies and improbabilities, in the version of the Customs Officer Shri Khan.
17. Shri Ved also contended that during the investigation the statements of the officers, namely Shri Khan and Samuel Raj were not recorded. Shri Ved also submitted CBI officers can keep watch over Customs Officers and therefore the possibility of the Customs Officers making false allegations against the appellant cannot be ruled out and therefore, in the absence of independent corroboration the statement of Khan and Samuel Raj should not be accepted.
18. It was also the submission of Shri Ved that the appellant was prosecuted before the Additional Chief Metropolitan Magistrate and the prosecution ended in the acquittal of the appellant. This acquittal further strengthens the appellant’s case that he has been falsely implicated by the Customs Officers.
19. Finally, Shri Ved submitted that the appellant was a CBI officer for over 30 years and he had a clean record. He was also the recipient of gold medal and he was a personal body guard of the Prime Minister. Shri Ved submitted that it is very unlikely that such a person would indulge in smuggling activities. Shri Ved therefore prayed that the personal penalty imposed on the appellant may be set aside.
20. Shri Prabhu appearing for the Collector, however, urged that the order passed by the Collector and confirmed by the Board does not suffer from any infirmity. There is no reason to disbelieve the statements of two Customs Officers. Their evidence if believed clearly establish the guilt of the appellant. Shri Prabhu also contended that the appellant and another had no reason to be present in the baggage hall. Their unexplained presence also should be taken into consideration while appreciating the various circumstances and the evidence relied on by the Collector as well as the Board. Shri Prabhu finally prayed for dismissal of the appeal.
21. I have carefully considered the submissions made on both the sides. The short question that arises for consideration in this appeal is whether the penalty imposed by the Additional Collector and confirmed by the Board requires to be interfered with. From the orders passed by the authorities below it is clear that they had relied on the statements of the two Customs” Officers to hold that the suitcase containing contraband wrist watches were found in the possession of the appellant. The plea of the appellant all along has been that he was in no way concerned with the brief case and he has nothing to do with the brief case or the contraband watches found in the brief case. The further contention of the appellant has been that he has been falsely implicated. Having,’regard to the said contentions it would be necessary to scrutinise the evidence which is against the appellant. It is further necessary to find out whether the evidence relied on by the Department is trustworthy, acceptable and sufficient to bring home the charge levelled against the appellant. The evidence against the appellant mainly consists of the statements of the two Customs Officers. The two authorities below have also placed reliance on certain other circumstances such as the recovery of identical brief case and two watches similar to the seized watches and the material discrepancies in the statements of the appellant and the other CBI officers Shri Deshpande and also the purposes for which the appellant and Shri Deshpande were in the baggage hall at the relevant time.
22. Shri Ved appearing for the appellant vehemently contended that the statements of the two officers should not be relied upon firstly because they are Customs Officers and without corroboration it would hazardous to rely on their statements. Secondly, the officers have every reason to implicate the CBI officer who had jurisdiction to watch over the activities of the Customs Officers. Thirdly, the statements of the two officers could not be tested as their statements were not recorded and since the department had not produced the report stated to have been made by one of the officer. Fourthly, because of the inherent improbability in the version of the first officer who according to the Department had seen the appellant carrying the brief case. Shri Ved urged that according to the submission of the Customs Officer, Shri Khan that he noticed blood shot in the fingers of the appellant as the suitcase was very heavy but then the close scrutiny of his evidence would go to show that Shri Khan could not have seen at all his fingers because when a person was holding a brief case the fingers should not be visible as they would go inside the palm. Fifthly and lastly, that the Customs Officer had suspected one Arab and they let off the Arab and implicated the appellant.
23. Let me proceed to scrutinise the above contentions of Shri Vea. It is not the law that the evidence of Customs Officers requires corroboration before the same can be accepted or made use of to bring home the guilt of a person charged with an offence. Therefore, there is no merit in the legal contention as to the admissibility of the evidence of the Customs Officer. It is settled law that uncorroborated testimony of a Police officer can be made a basis for a conviction provided the testimony of the Police Officer was found to be trustworthy and can be relied upon. When such being the case, there cannot be any legal hurdle to accept the uncorroborated testimony of a Customs Officer if that testimony is found to be trustworthy and acceptable. As in the case of the testimony of a Police officer the testimony of Customs officer requires stricter scrutiny before the same is accepted.
24. The contention of Shri Ved that because the CBI officers have jurisdiction over Customs Officers and because they could watch the activities of the Customs Officer, the Customs Officers in this case have every reason to fasely implicate the appellant is extremely difficult to accept. It is not the contention of the appellant that either the appellant or any other CBI officer had registered or filed any case against the Customs Officer Shri Khan or Customs Officer Samuel Raj or their relations, friends or colleagues which could have given some justification for Shri Khan and Samuel to falsely implicate the present appellant. The presence of the appellant at that unusual hour at the baggage hall has been admitted. It was also admitted that neither the appellant nor the CBI officer Shri Deshpande has any reason to be present in the baggage hall. The Customs Officer Khan as well as the Customs Officer Samuel Raj were subjected to cross examination and their evidence remained unshaken. Excepting some trivial discrepancy as to the number of persons found in the baggage hall at the relevant time the evidence of both the witnesses was consistent. The trivial discrepancy does establish that they were not tutored” and they were telling the truth. It is rather difficult to accept the contention of Shri Ved that the bag belongs to an Arab and he was let off and the appellant was implicated. It was not even suggested to Shri Khan and Shri Samuel Raj that they had accepted/extracted consideration from the Arab. There was no earthly reason either for Khan or Samuel Raj to let off the real culprit and to implicate an innocent person. The suspicion on Arab no doubt was there. The suspicion was that originally the bag must have been brought by him and was later delivered to the appellant. It was because of this suspicion the Arab was searched to find out whether he had the keys of the brief case. He did not have them. Therefore, there was no reasonable cause to implicate the Arab. In any case I am unable to accept the learned advocate’s contentions that two Customs Officers falsely implicated the appellant.
25. Coming to the improbability in the evidence of Shri Khan that he could not have noticed blood shot in the finger tips of the appellant suffice it to say that there was some exaggeration in the version given by Shri Khan. But then, both Khan as well as Samuel Raj have seen the appellant holding the brief case. It was only when Samuel Raj began questioning the appellant the appellant kept the brief case on the ground. Therefore, the nexus between the appellant and the brief case has been clearly established by the statements of the two Customs Officers. I have no reason to disbelieve their statements. Shri Ved had contended that the testimony of the two officers could not be tested with reference to their earlier statements since their statements were not recorded and also because the report said to have been submitted by Shri Samuel Raj had not been produced. It is not the case of Shri Ved that there was a practice of recording the statements of Customs Officers. If there was no such practice, non-recording of the statements cannot be made a ground to discredit their testimony. As stated earlier, the appellant sought cross-examination of both the officers and they were cross-examined by two counsels. They had not swerved nor shaken by the cross-examination and their evidence has been consistent.
26. Shri Ved had also urged that the appellant was a CBI officer and he held an identity card and if really he was in possession of a brief case containing contraband goods he need not have wandered in the baggage hall. He could have easily cleared out by showing his identity card. There is no force in this contention. These are only the possibilities. How a person would react when he is conscious of his guilt cannot be easily envisaged. Further it is common knowledge that nobody can bring with him any baggage outside baggage hall without getting cleared by the Customs authorities. Even a walk-through passenger would require clearance even though his baggage might not be examined. In the circumstances I am unable to accept Shri Ved’s contention that the appellant could have walked straight by showing his identity card. If that was possible there was no reason for the appellant to get into the baggage hall. As stated earlier he admits his presence in the baggage hall. He has no ostensible reason to be in the baggage hall.
27. Shri Ved had placed great reliance on the order of acquittal passed by the Additional Chief Metropolitan Magistrate in a criminal prosecution launched against the appellant. It is a settled law that criminal prosecution and adjudication are two independent proceedings. Finding of one authority is not binding on the other authority. Further in the absence of evidence as to the material placed before the criminal court and the adjudicating authority it would not be possible to state what factor or evidence weighed with the criminal court and with the adjudicating authority. Further, the provisions of Criminal Procedure Code and the Evidence Act are applicable to the proceedings before the Criminal Court but the provisions of the said Acts in terms are not applicable to adjudication proceedings. The above apart, the learned Magistrate did not discard the statements of the two Customs Officers. The finding of the learned Magistrate was that the prosecution had failed to prove the case beyond reasonable doubt. Now if the adjudicating authority found the evidence of the Customs Officer acceptable and on that basis held the appellant guilty, such a finding cannot be set aside only on the ground that the Criminal Court had acquitted the appellant after giving the benefit of doubt.
28. Shri Ved had contended that the appellant was a recipient of gold medal. He was a personal bodyguard of the Prime Minister and he had served 30 years and had clean record and therefore he would not indulge in smuggling activities. This contention also cannot be accepted. The appellant would be the best person to answer this contention of Shri Ved. One can only sympathise with the appellant for falling prey to the temptation. The question is not whether the appellant would indulge in smuggling activities. The question is whether he did indulge in smuggling activities. The evidence on record did establish the nexus between the appellant and the briefcase containing contraband wrist watches. Therefore, the Additional Collector was right in imposing the penalty on the appellant. The Additional Collector had taken the appellant’s character, his standing and other aspects while imposing a penalty and he had shown considerable leniency.
29. On careful consideration of all the aspects, I see no merit in this appeal and accordingly I reject the same.