ORDER
P.K. Kapoor, Member (J)
1. On 6.2.1981, the appellant and his brother Shri Kapil Mehra were apprehended by the Central Excise Preventive Officers, when they were about to board the Tata Express bound for Coimbatore. The search of the baggage of Shri Kapil Mehra did not yield anything incriminating. However, from a secret cavity in an attache case whose key was allegedly produced by the appellant 16 gold biscuits of 10 tolas each, collectively valued at Rs. 3 lakhs were seized under the provisions of the Customs Act, 1962 and the Gold (Control) Act, 1968.
2. Statements of Shri Kapil Mehra were recorded on 6.2.1981 and 10.2.1981. The appellant’s statement was also recorded on 6.2.1981 and thereafter he gave two statements on 7.2.1981. On 9.2.1981, the appellant’s statement was recorded once again. On completion of the investigation, proceedings for confiscation of the seized gold and imposition of personal penalty were initiated vide show cause notice dated 31.7.1981 against the appellant, his brother Shri Kapil Mehra, Ramesh Kumar of Amritsar and one Patrajan of Coimbatore both under the Customs Act, 1962 and the Gold (Control) Act, 1968. The case was adjudicated by the Collector of Central Excise, vide his orders dated 16.7.1982 and 27.7.1982. The Collector, besides ordering the confiscation of the seized gold, imposed a penalty of Rs. 3,00,000.00 under Section 112 of the Customs Act and Rs. 100,000.00 under Section 74 of the Gold (Control) Act on the appellant. Similarly, penalties of Rs. 100,000.00 and 30,000.00 under the Customs Act and Gold (Control) Act, respectively were imposed on Shri Kapil Mehra. However, the charges against Ramesh Kumar of Amritsar and Patrajan of Coimbatore were dropped. On appeals filed by the appelllant and his brother the Tribunal passed an interim order dated 3.9.1984 requiring the Collector to submit the records of the case after having the seized gold tested and affording opportunity to the appellants to cross-examine certain witnesses. Subsequently, vide the order dated 6.2.1988, the Tribunal remanded the case once again to the Collector with the directions to readjudicate the case in the light of further evidence and fresh material brought on record. Thereafter, in the impugned order dated 23.5.1988 the Collector while dropping the proceedings against Shri Kapil Mehra, held the charges against the appellant as established and imposed penalties of Rs. 2,00,000.00 each under Section 112 of the Customs Act, and Section 74 of the Gold (Control) Act.
4. On behalf of the appellant, we heard the learned Advocate Smt. Archana Wadhwa. She argued that the Collector had erred in coming to the conclusion that the seized foreign marked gold biscuits were recovered from the possession of the appellant. She contended that the evidence on record being controversial, the case against the appellant could not be deemed to have been proved beyond reasonable doubt and no penalty ought to have been imposed upon him. In this regard, she pointed out that in the panchnama dated 6.2.1981, the words “belonging to Rohit Mehra” had been interpolated and in the recovery memo dated 6.2.1981 the attache case mentioned at the top left side also appeared to be a subsequent addition. She added that as per the panchnama the appellant was credited with only one item of luggage i.e. the tainted attache csse, the key to which was alleged to have been produced by the appellant, but the recovery memo dated 6.2.1981 did not make any mention of any key having been taken over by the officers from the possession of the appellant. She added that under these circumstances, it could not be deemed as having been recovered from him. She argued that the Collector had failed to appreciate that the recovery memo could not be relied upon as evidence of recovery of the seized gold from the appellant since it had been held by the Hon’ble Punjab and Haryana High Court in the case of Assistant Collector of Customs v. Jamila Begam that any interpolation made by the customs authorities in the recovery memo incorporated between an important item of evidence, had the effect of rendering the entire document a nullity. Smt. Wadhwa further contended that the Collector had erred in placing reliance on the statements of the appellant, which were not corroborated by subsequent investigations and were mutually self-contradictory and could not be deemed as voluntary. In this regard she referred to the application dated 4.2.1981 filed on behalf of the appellant in the Court of the Chief Judicial Magistrate, Amritsar and contended that the statements given by the appellant had been retracted. In conclusion, the learned Advocate reiterated her stand that the recovery of the attache case from the possession of the appellant not having been established beyond doubt on the strength of the basic documents, the self-incriminating statements of the appellant do not inspire confidence in regard to their voluntary and true nature. She contended that for these reasons and also for the reason that the appellant was 19 years of age at the time of seizure, the penalties of Rs. 2,00,000.00 each under the Customs Act and the Gold (Control) Act, were highly excessive. In support of her contentions Smt. Wadhwa placed reliance on the following case law:
Kali Charan Basant Lal v. Collector of Central Excise: .
5. On behalf of the Department, the learned SDR Shri G. Bhushan contended that all the points raised on behalf of the appellant had been dealt with by the Collector. He contended that the minor additions made in the panchnama and reference to the attache case in an unusual manner, were insignificant in nature and did not alter the position in regard to the seizure of gold from the attache case carried by the appellant as confirmed by his own voluntary statements. He argued that the statements given by the appellant were voluntary and were admissible as evidence. In this regard he placed reliance on the decision of the Kerala High Court in the case of Kallatra Abbas Haji v. Government of India and Ors. reported in 1991 (35) ECR 131. He contended that the appellant did not deserve any leniency on the grounds of his tender age in view of the large quantity of smuggled gold seized from him and also for the reason that on his own admission he had taken smuggled gold to Coimbatore on an earlier occasion.
6. We have examined the records of the case and considered the submissions made on behalf of both sides. It is seen that one of the points raised by the appellant is that recovery of the seized gold from the appellant cannot be deemed to have been established beyond doubt since the entry in the recovery memo in respect of the attache case from which the gold was alleged to have been recovered, was made in a constricted manner and also for the reason that the expression “belonging to Rohit Mehra” was interpolated in the panchnama dated 6.2.1981.
7. In this regard we find on inspection of the recovery memo that the second entry against the heading ‘Description of goods’ relates to the seized gold and reads as “16 Biscuits weighing 160 Tolas said to be of gold bearing foreign markings valued at Rs. 3,00,000.00”. Below this, under the heading “Details of Biscuits recovered”, the markings on the seized gold biscuits, the country of origin and other particulars have been recorded. Between these two headings in the available space the following other items have been mentioned in somewhat constricted manner:
1. Ticket No. 315444 for 2nd class berth from A.S.P. to Coimbatore.
2. One attache case (Bag type) of green colour canvas made used as container.
3. Used clothes as per list attached.
It is seen that along with the recovery memo a list of clothes and other articles recovered from the attache case was also prepared and it bears the following heading:
List of articles/clothes recovered from the attache case of Shri Rohit Kumar Mehra apart from 16 Biscuits of gold recovered.
Since the entry relating to the attache case in the recovery memo refers to the attached list which is also dated 6.2.1981 and bears the signatures of the same witnesses who had signed the recovery memo and also of the appellant, it is evident that it was prepared along with the recovery memo as its continuation. Since this list clearly confirms that the attache case from which the seized gold was recovered belonged to the appellant, we are of the view that the appellants’ contention that the entry in the ‘Recovery Memo’ having been made in somewhat constricted manner renders the document as doubtful and cannot connect the appellant with the attache case does not have much force. In the case of Assistant Collector v. Jamila Begum (P and H) on which reliance has been placed by the appellant, the Recovery Memo was held to a nullity on the grounds of an interpolation at a later stage to show the recovery of a cloth piece from which the seized gold was recovered. In the case before us, apart from the fact that there is no evidence of any insertion having been made in the Recovery Memo at a later stage, as observed by us, the list of articles/clothes, appended to the Recovery Memo, clearly establishes that the attache case from which the seized gold was recovered, belonged to the appellant. The facts being different in this case, the judgment cited by the appellant is, not relevant. Further the department’s case does not rest only on the recovery memo and it is well settled law that 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 under Section 159 to 161 of the Evidence Act.
8. In support of her contention that the Department had failed to establish beyond doubt that the attache case from which the seized gold was recovered belonged to the appellant, Smt. Wadhwa also referred to the interpolation of the words belonging to “Shri Rohit Kumar Mehra” in the panchnama. She added that the recovery of the key to the lock of the attache case was mentioned in the panchnama but not in the recovery memo. In this regard it is seen that immediately after the interpolated words, the panchnama reads as “and having cover of green colour cloth whose key along with Ticket No. 315444 dated 2.2.1981 for Rs. 225.80 for two IInd class sleepers from Amritsar to Coimbatore was produced by Shri Rohit Kumar himself was conducted, 16 Biscuits bearing foreign markings with 999.0 said to be of gold, each weighing 10 Tolas total being 160 Tolas valued at Rs. 3,00,000.00 (Rupees three lakhs only) were recovered from a wooden cavity fitted in the attache.” It is seen that even if the interpolated words are disregarded, it would still follow from the panchnama that the attache case from which the gold was recovered belonged to Shri Rohit Kumar since the key for opening the lock placed on the attache case was produced by him. We are, therefore, of the view that interpolation in the panchnama which has been referred to by the appellant and the omission to list the key to the lock of the attache case in the recovery memo are minor irregularities, which when examined in the light of the overall contents of the recovery memo, panchnama and the. list of articles recovered from the attache case do not affect the evidentiary value of the documents in regard to the recovery of the attache case containing the seized gold from the appellant.
9. Another point which was strongly urged on behalf of the appellant by the learned Advocate was that the appellant’s statements were not recorded at the place of seizure and being mutually contradictory, they could not be deemed as voluntary and true. It was also contended that the statements made by the appellant were retracted and the disclosures made by the appellant were also not corroborated by the subsequent investigations.
10. In this regard we find that the appellant’s first statement was recorded on 6.2.1981 in which he admitted that he was apprehended that day when he and his brother were about to leave for Coimbatore by the Tata Express and from a cavity in an attache case which was opened by him with a key 16 gold biscuits of 10 tolas each with foreign markings were recovered. He stated that the attache case from which the seized 16 gold biscuits were recovered belonged to him and the gold was brought to his residence in the evening on 6.2.1981 by a broker named Meshi and in Coimbatore he was to meet a broker called Patrajan, through whom he had sold 500 grammes of gold which he had earlier carried to Coimbatore. On 7.2.1981 the appellant’s statement was recorded on two occasions. In his first statement dated 7.2.1981 recorded in the presence of broker Ramesh Kumar alias Meshi he stated that the person known to him as Ramesh Kumar and who had delivered the seized gold at his residence on 6.2.1981 was a person other than the man who was present before him. However, in his second statement dated 7.2.1981, the appellant stated that the person who was produced before him earlier, was known to him as Ramesh Kumar and even though he had received the seized gold from him he had pretended that he did not know Ramesh Kumar on account of the threats meted out to him by Ramesh Kumar. In his statement dated 9.2.1981, Rohit Mehra once again stated that on 7.2.1981 when he was confronted with Ramesh Kumar, he had informed the officers that he did not know the person brought before him since Ramesh Kumar had meted out threats to him but he had told his brother that the person brought before him was Ramesh Kumar who had come to their residence in the evening on 6.2.1981 to deliver the gold biscuits. The appellants’ brother Shri Kapil Mehra in his statement dated 10.2.1981 also confirmed that 16 gold biscuits were recovered from a secret cavity in the bag belonging to his brother Rohit Kumar. He also confirmed that on 7.2.1981 on seeing Ramesh Kumar, his brother Rohit Kumar had told him that he had received the seized gold from that person.
10A. We find that all the statements of Rohit Kumar and his brother are in their own handwriting. It is also seen from the appellants’ statements dated 6.2.1981, the two statements dated 7.2.1981 and also the statement dated 9.2.1981 that he maintained a consistent stand that the seized gold was recovered from the bag belonging to him.
11. In our view, the different versions given by the appellant in his two statements dated 7.2.1981 regarding his familiarity with Ramesh Kumar, cannot be deemed as having rendered these statements as mutually contradictory. Though on being confronted with Ramesh Kumar on 7.2.1981, he had stated that he did not know the person who had been produced before him, his behaviour in this regard was quite natural since as disclosed by him in his second statement dated 7.2.1981 he had pretended that he did not know Ramesh Kumar when he was brought before him since Ramesh Kumar had threatened him that he would be killed if any disclosures were made to the customs officers. We have, therefore, no hesitation in holding that the appellants’ statements dated 6.2.1981, 7.2.1981 and 9.2.1981 were voluntary and true.
12. The learned Counsel relying upon the Tribunal’s decision in the case of Kalicharan Basant Lal v. Collector of Central Excise has contended that the appellants’ statements having been retracted, they cannot be relied upon as evidence against him. In this regard it is seen that in his application dated 11.2.1981 filed before the Chief Judicial Magistrate, Amritsar the appellant had alleged that during the period from 7.2.1981 to 11.2.1981 while in the customs custody, he was subjected to mental agony by the Departmental Officers who had obtained his signatures on various papers under duress. In this regard we find that apart from the fact that the retraction was not immediate, there is not an iota of evidence to show that the statements were obtained through force, coercion or inducement. Further as observed by us earlier, all the statements were in appellants’ own handwriting and on each one of them he had appended a certificate that it was made by him on his own accord and not under any threat or promise.
13. On perusal of the confessional statements, we find that prima facie they contain nothing improbable or unbelievable and they give a vivid and detailed account of manner of commission of the offence which only the perpetrator of the offence could have known. Further, it is corroborated in several material particulars by the statement of the appellants’ brother Shri Kapil Mehra. We are, therefore, convinced that they were not obtained through force or coercion and were true and voluntary. In this regard it would be pertinent to mention that as held by the Hon’ble Supreme Court in the case of Soni Vallabhdas Liladhar and Anr. v. Assistant Collector of Customs Jamnagar 1983 ELT 1408 (SC) : 1984 ECR 461 (SC) : ECR C Cus 386 SC that statements before customs officers which are not made due to any inducement, threat or promise are admissible under Section 24 of the Evidence Act.
14. For these reasons the counsel’s contention that the statements were not recorded at the place of seizure, does not help the appellant.
14A. In view of the foregoing, and having regard to the contents of the recovery memo, panchnama and the statements of the appellant which have been held by us as true and voluntary, we do not find any reason to differ from the findings of the adjudicating authority in the impugned order. We, therefore, dismiss the appeals. However, having regard to the fact that the appellant was a young man of tender age and in all probability was acting only as a carrier of the seized gold, we reduce the amount of penalty under the Customs Act, 1962 to Rs. 20,000.00 (Rupees twenty thousand only) and to Rs. 5000.00 (Rupees five thousand only) under the Gold (Control) Act.
15. The appeals are disposed of in the above terms.