ORDER
G.P. Agarwal, Member (J)
1. All the captioned appeals are directed against the common orders-in-original No. 3/Gold/83 dated 9-8-1983 and 17/Customs/83 dated 9-8-1983, both passed by the Collector of Customs and Central Excise, Chandigarh imposing different personal penalties on the appellants namely; Rs. 1,00,000/- under the Gold (Control) Act and another Rs, 1,00,000/- under the Customs Act on the appellant, Shri Kishan Chand; Rs. 2,00,000/- under the Gold (Control) Act and another Rs. 2,00,000/- under the Customs Act on the appellant, Shri Jaswant Rai; Rs. 2,00,000/- under the Gold (Control) Act and another Rs. 2,00,000/- under the Customs Act on the appellant Shri Sudershan Kumar; and Rs. 5,000/- under the Gold (Control) Act and another Rs. 5,000/~ under the Customs Act on the appellant, Smt. Usha. Besides these penalties, the Adjudicating Authority also imposed a personal penalty of Rs. 75,000/-under the Gold (Control) Act and another Rs. 75,000/- under the Customs Act on one Shri Raman Kumar (d Pandit with which we are not concerned.
2. Brief facts of the case so far as relevant for the purpose of these appeals are that acting on the intelligence information, the Customs Preventive Officers checked the Panjab Roadways Bus which left Amritsar at 2300 hours on 10-12-1977. On checking of the passengers, Shri Jaswant Rai appellant, a goldsmith of Khanna, Distt. Ludhiana was spotted-out, and as a consequence, he was asked to get down from the bus. Search of the appellant Jaswant Rai resulted in the recovery of 10 gold biscuits bearing foreign markings weighing 10 tolas each and 8 gold strips (folded without bearing any markings) of 10 tolas each which were concealed in a cotton cloth belt tied around his waist under the pants worn by him. Besides, two bus fare tickets for Ludhiana were also recovered from one of the pockets of his coat. On examination of the plastic bag, held by him, in his hand Indian currency worth Rs. 6,550/-, two old used bangles, one iron dagger and a Railway Pass from Ludhiana to Khanna were also recovered. Since the appellant Jaswant Rai could not produce any documentary evidence to show the legal import into India of the aforesaid gold and gold strips or their lawful acquisition, the same were seized by the Customs Officers on the reasonable belief that the gold as well as gold strips were liable to confiscation under the provisions of the Gold (Control) Act, 1968. In his statement tendered at the time of recovery the appellant, Jaswant Rai while admitting the recovery stated that 10 gold biscuits and 8 gold strips were purchased by him from the appellant, Shri Sudershan Kumar on cash payment of Rs. 1,35,000/-. He further stated that the delivery of the gold was given to him by the appellant Smt. Usha, wife of appellant Shri Sudershan Kumar. During the investigation, the appellant Kishan Chand in his statement dated 15-12-1977 stated that he delivered 10 gold biscuits in question to Shri Sudershan Kumar appellant as per the deal settled with him earlier. As a sequel thereof separate show cause notices under the provisions of Gold (Control) Act were issued to all the appellants and also to one Shri Raman Kumar @ Pandit calling upon them to show cause as to why the seized 10 gold biscuits and 8 gold strips be not confiscated and why they should not be penalised under the provisions of Gold (Control) Act. After the usual enquiry, the Adjudicating Authority vide its Order-in-Original No. 2/Gold/79 dated 9-‘t-1979 absolutely confiscated the seized 10 gold biscuits and 8 gold strips under Section 75 of the Gold (Control) Act and also imposed different personal penalties on all the appellants. Against the said orders-in-original all the appellants went in appeal before the Gold (Control) Administrator who vide his order No. 33-37/1982 dated 30-3-1982 remanded the case so far as personal penalty on the appellants was concerned with a direction that the case be re-adjudicated after granting personal hearing and opportunity to cross-examine the witnesses as asked for. The Gold (Control) Administrator, however, upheld the confiscation of the gold seized as nobody claimed the same. On remand, the Adjudicating Authority after the usual enquiry found all the appellants guilty for contravening the various provisions of the Gold (Control) Act and imposed different personal penalties on them as stated above.
3. On the aforesaid facts, separate show cause notices were also issued to all the appellants asking them to show, cause as to why the said gold biscuits and gold strips be not confiscated and personal penalty be not imposed upon them under the various provisions of the Customs Act. After the usual enquiry, the ‘Adjudicating Authority vide its order-in-original No. 27/Cust/78 dated 15-2-1979 absolutely confiscated the said gold biscuits and gold strips under Section 111 of the Customs Act and also imposed different penalties on all the appellants under the Customs Act. Against this order-in-original also all the appellants went in appeal before the Central Board of Excise & Customs. The Appellate Authority vide its order No. 33-37/1980 remanded the case for re-adjudication so far as the personal penalty on the appellants was concerned with a direction that the same be adjudicated after granting personal hearing and opportunity to cross-examine the witnesses as asked for. The Appellate Authority, however, upheld the confiscation of the gold seized as nobody claimed the same. On remand the Adjudicating Authority after the usual enquiry imposed the various penalties on all the appellants as stated above by the impugned order-in-original No. 17/Customs/83 dated 9-8-1983.
4. Aggrieved by the aforesaid common orders passed under the Gold (Control) Act and the Customs Act all the appellants have filed their separate captioned appeals. Since all these appeals arise out of the common orders and are based on the same facts, they were heard together and are disposed of by this common order.
5. At the outset it deserves to be mentioned here that all the captioned appeals are directed against the imposition of personal penalty on all the appellants and the confiscation of the seized 10 gold biscuits and 8 gold strips have not been challenged before us and rightly so because the order of confiscation of the said gold biscuits and gold strips was confirmed by the Gold (Control) Administrator and the Central Board of Excise and Customs as stated above and no appeal was ever filed against those orders.
APPEAL OF SHRI JASWANT RAI
6. Adjudicating Authority have found the appellant Shri Jaswant Rai guilty for contravening the provisions of Section 4 of the Gold (Control) Act, 1968 and Section 112 of the Customs Act, 1962 holding that the seized 10 gold biscuits and 8 gold strips were smuggled gold and were recovered from the possession of Jaswant Rai. These findings of the Appellate Authorities below are based on the confessional statement of the appellant Jaswant Rai dated 11-12-1977 and duly corroborated by the appellants Smt. Usha and Kishan Chand. Shri M. Ganesan, learned Advocate who appeared on behalf of the appellant Jaswant Rai heavily contended before us that there is no evidence on record to show that the seized gold biscuits and gold strips were recovered from the possession of the appellant Jaswant Rai. He further contended that the confessional statement of the appellant cannot be relied upon as it was recorded in the Customs House under torture. Regarding the statement of Smt. Usha appellant, he submitted that the two statements of Smt. Usha were recorded while she was in judicial lock up. He further contended that the concessional statement of Shri Kishan Chand besides being a retracted one cannot be relied upon as it was not in his own hand-writing or in the language known to him. Smt. Nisha Chaturvedi, learned SDR countered the arguments of the appellant and supported the impugned order. She also pointed out that from the copy of the judgment of Chief Judicial Magistrate, Amritsar it is clear that the appellant was prosecuted and convicted by the Chief Judicial Magistrate for committing the offence under Section 135 of the Customs Act and also for committing the offence under Section 85 of the Gold (Control) Act relating to the seizure of the gold and gold strips in question. She further pointed out that from the copy of the judgment of the Sessions Judge, Amritsar, it is clear that against the said order of conviction passed by the Chief Judicial Magistrate, Amritsar, the appellant filed the appeal and in that appeal there was no challenge to the conviction and the prayer was only that the sentence of the appellant be reduced to fine only. Accordingly, the conviction was maintained by the Sessions Judge, Amritsar in appeal and the sentence was reduced.
7. Shri M. Ganesan, learned Advocate for the appellant while elaborating his arguments submitted at the outset that the confessional statement of the appellant was obtained under torture as it was recorded in the Customs House. He further submitted that the same was retracted subsequently and, therefore, the confessional statement cannot form the basis of conviction. From the record, we observe that there is nothing on record to show that the confessional statement was the result of any torture. On the other hand, we find that the confessional statement is a detailed one and contains the minute details of the crime. In his confessional statement he has not only admitted the recovery of the seized gold biscuits and gold strips from his possession but has also disclosed that he had purchased the gold from the appellant Shri Sudershan Kumar, husband of the appellant Smt. Usha, and that the gold in question was handed over to him by Smt. Usha appellant and that he had handed over the Indian currency worth Rs. 1,35,000/- to Sudershan Kumar as a price of it. He further stated that he works as a goldsmith and his shop is in a Bazar at Khanna and that after receiving the seized gold biscuits and gold strips as aforesaid, he wrapped the same in a piece of cloth and tied it round in his waist and thereafter started from the residence of Sudershan Kumar and reached the Bus Stop and purchased two tickets for Ludhiana from the counter and that he was intercepted by the Customs staff as alleged. This statement finds corroboration from the statement of Smt. Usha appellant. In her statements dated 11-12-1977 and 13-12-1977 Smt. Usha had deposed that her husband (appellant Shri Sudershan Kumar) had arranged the seized gold and that it was delivered to the appellant, it deserves to be mentioned here that Smt. Usha appellant never retracted from her statements dated 11-12-1977 and 13-12-1977 and it was only after the issuance of show cause notices dated 31-5-1978 that she in her reply retracted from the same. As such the confessional statement of the appellant stands fully corroborated by the statements of Smt. Usha appellant. As regards the contention of the learned counsel for the appellant that the appellant retracted from his alleged confessional statement subsequently and, therefore, it cannot be relied upon has also no force. For, the confessional statement of the appellant was recorded on 11-12-1977 and it is said that the appellant had informed the Collector of Customs, Chandigarh through a telegram dated 19-12-1977 that “False record, statements prepared, torture, nothing incriminating recovered, pray, intervention or enquiry save innocent person.” From this, it is clear that the telegram was sent 8 days after the seizure of the gold that is to say, the confession was not retracted at an earlier opportunity but after lapse of 8 days. The contention of the appellant that during this period, he was in judicial custody and was released on bail on 19-12-1977 and, therefore, there was no delay in retraction has also no force. For, had it been a fact that the statement was recorded under torture nothing could have prevented the appellant from informing the authorities immediately through the Jail authorities even if he was in judicial custody. . Further from the grievance made in the telegram as stated above, it is clear that the appellant has not said that he had signed the confessional statement under duress. On the other hand, it further deserves to be mentioned here that in the telegram as stated above, the appellant while retracting from his confession did not say that he was tortured by the Customs Authorities to make the confession but only said that false record, statements prepared, torture and nothing incriminating recovered From the perusal of the confessional statement it is clear that prima facie there was nothing improbable or unbelieveable in it; that it appears to be a spontaneous account studded with such vivid details about the manner of the commission of the crime in question, which only the perpetrator of the crime could know. Further it receives assurance in serveral material particulars from the statement of the appellant Smt. Usha. Thus we are satisfied that it was not obtained under any torture as alleged but it was voluntary. The confession had unerringly and indubitably brought home the charges to the appellant. It deserves to be mentioned here that there should be no doubt that the charges can be proved on the retracted confession if it inspires a ring of truth as held by their Lordship of the Supreme Court in the case of Shankaria v. State of Rajasthan AIR 1978 S.C. 1248 and State of Maharashtra v. P.K. Pathak AIR 1980 S.C. 1244.
8. Shri M. Ganesan, learned Advocate while elaborating his arguments that the seized gold biscuits and gold strips were not recovered from the possession of the appellant Jaswant Rai further submitted that the recovery memo suffers from various infirmities to wit, it was not prepared on the spot; that it was not signed by any of the passengers or the driver or conductor of the bus; that it does not indicate that the cloth belt was found tied on the waist of the appellant and gold was recovered from his personal se-. arch; that there was no endorsement in the recovery memo that the contents of the recovery memo were explained to the appellant in local language; and that it does not indicate that the appellant was found carrying a plastic bag containing Indian currency of Rs. 6,550/- and two gold bangles which were returned to him after search. He also submitted that from the cross-examination of the witnesses to the recovery memo it is clear’ that they contradict each other and also do not support the case of the department. Though we agree that the recovery memo suffers from some lapses such as it does not say in so many words that the recovery was effected from the person of the appellant Jaswant Rai. But from the tenor of the recovery memo it is clear that the gold biscuits and gold strips in question were recovered from the appellant and none else. Even otherwise, recovery memo cannot be said to be the sheet anchor of the departmental case. It is settled law, recovery memo by itself is not a substantive piece of evidence and can be used only for the purpose of refreshing the memory as provided for under Section 159 to 161 of the Evidence Act. Moreover, we find that the Seizing Officers Shri O.K. Nagpal, Inspector and Shri A.L. Beri, Superintendent (Customs) were cross-examined at length. They had clearly stated in their cross-examinations that the gold biscuits and gold strips were recovered from the possession of the appellant. Why they would like to foist a false case on the appellant was not shown to us. For the same reasons, the other contention of the learned counsel for the appellant that the recovery memo was not prepared on the spot cannot also be accepted. The other contentions with respect to the recovery memo as stated above are also not of such a nature as to throw out the entire case of the department. The discrepancies as pointed out by the learned counsel for the appellant, in the statements of the witnesses may be due to lapse of time between the occurrence and the cross-examination of the witnesses. In Narotam Singh v. State of Punjab, AIR 1977 S.C. 1542, their Lordships of the Supreme Court have observed – “…Proof of guilt is sustained despite little infirmities, tossing peccadilloes and peripheral probative short falls. The ‘sacred cows’ of shadowy doubts -and marginal mistakes, processual or other, cannot deter the court from punishing crime where it has been successfully and substantially brought home. By these guidelines the conviction of the appellant must stand, although we do not detain ourselves to discuss the details of the evidence”.
9. The contention of the learned SDR that the appellant was also prosecuted for the same offence under Section 135 of the Customs Act and under Section 85 of the Gold (Control) Act and that the appellant did not challenge his conviction but only prayed for reduction in sentence in the Appellate Court and therefore, the case of the department also stands proved is only to be stated for mention. For, it is settled law that the judgment of the criminal court is relevant only to show that there was such a trial resulting in the conviction and sentence of the party. It cannot be relied upon as an admission of the certain facts contained therein, as held by their Lordships of the Supreme Court in the case of Anil Behari v. Latika Bala Dassi reported in AIR 1955 S.C. 566.
10. At the fag end of his arguments, the learned counsel for the appellant Shri M. Ganesan also contended that the penalty is on excessive side. Looking to the facts and circumstances of the case and the quantity of the gold biscuits and gold strips involved in the case, we reduce the penalty to Rs. 25,000/- under Customs Act, 1962 and also reduce the penalty to Rs. 25,000/- under Gold (Control) Act, 1968.
11. In the result, except with the said modification the appeals filed by Shri Jaswant Rai are dismissed being devoid of any merits.
APPEALS OF SMT. USHA
12. Shri Ramesh Solanki, learned Advocate appearing on behalf of the appellant Smt. Usha contended that it is not proved that the seized gold biscuits and gold strips were possessed and delivered by the appellant to the appellant Jaswant Rai and that the confessional statement of the appellants were neither voluntary nor true.
13. The contention of the learned counsel that the two confessional statements recorded on 11-12-1977 and 13-12-1977 were not voluntary because on 11-12-1977 the appellant was under arrest and on 13-12-1977 she was in judicial custody and was brought from the jail cannot be accepted. It deserves to be mentioned here that in her statement dated 11-12-77 she admitted to have delivered the gold biscuits and gold strips to Shri Jaswant Rai. In her statement on 13-12-1977 she admitted that she received a telephonic message from her husband informing her about the arrival of a businessman from Khanna whom she knows, for collecting the goods. Telephonic enquiries about the arrival of the man from Khanna was made by her husband and the other person namely, Raman. Her husband Shri Sudershan Kumar told her on telephone that the businessman of Khanna had left Khanna at 1400 hours and had to go back on the same day by night bus. When she confirmed about the arrival of the businessman from Khanna at their residence, Shri Sudershan Kumar the appellant and Raman arrived at their residence. Shri Raman delivered her a handkerchief telling that it contained 8 gold strips. The said handkerchief was given to Jaswant Rai appellant, who gave her three bundles containing hundred rupee currency notes which were handed over by her to Raman. After some time the appellant Kishan Chand arrived at their residence and delivered 10 gold biscuits which she passed on,to her husband who further handed over the same to the appellant Jaswant Rai, who made the payment to her husband. The payment for 10 gold biscuits received by her husband Shri Sudershan Kumar, appellant was passed on to the son of the appellant Kishan Chand who visited their residence the same night after deducting the commission of Rs. 100/-. The appellant Jaswant Rai then left for Khanna. She further stated that on the next day early in the morning her husband on receipt of a telephonic call left for unknown place to avoid apprehension advising her that if somebody enquires about him, she should say that he had gorae on tour 3 or 4 days back. It deserves to be mentioned here that these statements were never retracted by the appellant Smt. Usha and it was only after the issuance of Show Cause Notices dated 31-5-1978 that she in her reply to the Show Cause Notices disowned them. Hence in the absence of any evidence on record there is no reason to believe the said confessional statements of the appellant Smt. Usha were not voluntary or true. The mere fact that she was under arrest or she was brought from the judicial custody for recording the statement cannot detract the credibility or the voluntary nature of the confessional statements. Besides, a perusal of the confessional statements would show that prima facie there is nothing improbable or unbelievable in it. It appears to be spontaneous account, studded with such vivid details about the manner of the commission of the crime in question, which only the perpetrators of the crime could know. After carefully examining the confession we are satisfied that it was true and voluntary and appears to be a probable catalogue of events and naturally fits in with the rest of the evidence and the surrounding circumstances.
14. In the result while agreeing with the reasonings and findings of the Adjudicating Authorities below, which we are not required to repeat here as we are confirming the impugned orders, we dismiss the appeals. We, however, reduce the amount of penalty to Rs. 2,500/- under the Customs Act, 1962 and also to Rs. 2,500/- under the Gold (Control) Act, 1968, for the reasons stated above while dealing with the appeal of the other appellants.
REGARDING APPEALS OF SHRI SUDERSHAN KUMAR
15. Shri Ramesh Solanki, learned Advocate appearing on behalf of the appellant Shri Sudershan Kumar vehemently argued that holding the appellant guilty only on the basis of the confessional statement of the co-accused Smt. Usha is absolutely improper and unwarranted. We do not agree. Besides, the confessional statement of co-accused Smt. Usha, there is also other evidence on the record to connect the appellant with the offence involved in the case. We are aware of the well settled legal position that self-exculpatory statement of accused should not be taken into consideration against co-accused. We are also aware of the fact that a confessional statement of co-accused which is self-incriminatory and also implicates the co-accused is not evidence in the ordinary sense of the term as defined in Section 3 of the Evidence Act and, therefore, it cannot be made a foundation of a conviction and can only be used in support of other evidence. In the instant case the confessional statements of Smt. Usha appellant who is no other than the wife of the appellant is not only self-incriminatory but also implicates the appellant and this self-implication on the part of Smt. Usha appellant is the-guarantee for the truth of accusation against the co-accused appellant. In the instant case there is a recovery of the 10 gold biscuits with foreign markings which were delivered by the appellant Kishan Chand to Smt. Usha appellant who in turn passed them on to the appellant and it was the appellant who handed over these 10 gold biscuits to the appellant Jaswant Rai and got the payment from Shri Jaswant Rai appellant. Thus the recovery of the 10 gold biscuits which were given by the appellant to Shri Jaswant Rai for consideration and the receipt of the price from Jaswant Rai appellant, is itself sufficient to connect the accused with the crime. Under these circumstances, the confession of the co-accused Smt. Usha can be pressed into service for seeking an assurance in support of our conclusion. So pressed, we are satisfied that the appellant was the perpetrator of the offence.
16. In the result while maintaining the findings of Adjudicating Authority, we reduce the amount of penalty to Rs. 25,000/- under the Customs Act, 1962 and also to Rs. 25,000/- under the Gold (Control) Act, 1968 for the reasons stated above while dealing with the appeals of the other appellants.
REGARDING APPEALS OF SHRI KISHAN CHAND
17. Shri M. Ganesan, learned Advocate appearing on behalf of the appellant Kishan Chand contended that the alleged confessional statement was never made by the appellant Kishan Chand as the statement was not recorded in the appellant’s own hand-writing; although he knew very well to read and write Hindi language. He further submitted that the statement was recorded in English language and the appellant’s signatures were obtained on that statement under force, threat and duress without making known ‘its contents. He also contended that since the confession was retracted subsequently and there is no corroboration in material particulars no conviction can be sustained on such confessional statements. We do not agree. It is settled law that a confession even retracted if voluntarily and truthfully made is an efficacious proof of guilt. In his confessional statement the appellant Kishan Chand who is a gold dealer of Amritsar has clearly stated that he arranged for the 10. gold biscuits of foreign origin and when he reached Sudershan Kumar Alias Darshan’s house he delivered the said gold biscuits to Darshan who in turn handed over the same to his wife, that is to say, Smt. Usha appellant for onward delivery to a person who was sitting in an adjacent room. He further stated that Smt. Usha went to an adjacent room and delivered the goods and that after some time he again went to Darshan’s house and collected the sale proceeds of the 10 gold biscuits. This statement finds corroboration in material particulars from the statement of Smt. Usha. The contention of the learned counsel for the appellant that since the said confessional statement of the appellant was recorded in English and not in Hindi and that the contents of the statements were not made known to, the appellant in Hindi is devoid of any merits when we turn to the cross-examination of Shri D.K. Nagpal, Inspector, Central Excise, who recorded the said confessional statement of the appellant. In cross-examination of Shri O.K. Nagpal, the appellant did not challenge the veracity or the voluntary nature of the confessional statement except a question that no time of writing the statement has been mentioned therein to which Shri Nagpal replied that this can be ascertained from the records. No question or even suggestion was put to Shri Nagpal to the effect that the signatures were obtained under duress or that it was not read over to the appellant. Even during the course of arguments the learned counsel for the appellant could not point out any circumstance to show as to why Shri O.K. Nagpal would attribute a false statement to the appellant. Besides, the vivid details in confessional statement about the manner of the commission of the crime in question leads to an inescapable conclusion that the statement was voluntary and subsequent retraction has no effect. After carefully examining the confession and the surrounding circumstances and the probabilities of the case, we find that the confession has a probable catalogue of events and naturally fits in with the rest of the evidence. Under these circumstances, we are satisfied that the confession made by the appellant Kishan Chand though retracted unerringly prove the charges levelled against him.
18. In the result while maintaining the findings of the Adjudicating Authority we also reduce the amount of penalty to Rs. 25,000/- under the Customs Act, 1962 and also to Rs. 25,000/- under the Gold (Control) Act, 1968 for the reasons stated above while dealing with the appeals of the other appellants.
CONCLUSION
19. In the result, all the appeals are partly allowed as stated above.