ORDER
A.C.C. Unni, Member (J)
1. These two appeals were heard together since they originated from a common order and involve interconnected facts.
2. We have heard Shri S.C. Kathuria, Dveep Ahuja and Ms. Veena Jain, Advocates for the appellants and Shri M.M. Dube, JDR for the respondent Collector.
3. Vide the impugned Order-in-Original dated 17.8.93, the Collector of Customs, New Delhi ordered absolute confiscations of two kgs. of gold seized from Shri Dinesh Khindria (one of the appellants before us) under Section 111(d) and (e) of the Customs Act, 1962. He had also directed absolute confiscation of another two kgs. of gold brought by Shri Mohit Thakur. Penalties of Rs. 15000 each were also imposed on the two present appellants and Shri Mohit Thakur.
4. It is seen from the record that the appeal filed by Shri Mohit Takhur against the impugned order has been disposed of by the Tribunal vide its Final Order No. A/458/ 94-NRB dated 6.5.94 in Appeal No. C/1036/93-NB .
5. The facts relating to the two appellants under consideration in the two Appeals before us are as under: Shri Dinkar Khindria, a non-resident Indian (NRI) residing in Canada arrived in India on 13.4.92 on a flight from Toronto at New Delhi IGI Air Port. He declared 3 kgs. of gold in his possession and paid Customs duty thereon. According to the Department and as per the show cause notice dated 26.8.92, during surveillance by Preventive Officers of Air Customs, they located one Dinesh Khindria, brother of Dinkar Khindria, roaming in the arrival hall of the Air Port at the time when the flight in which Dinkar Khindria had arrived at the airport and he was found to be having physical contact with Shri Dinkar Khindria near the baggage conveyor belt No. Ill at the arrival hall of the air port. When Shri Dinesh Khindria was about to leave the arrival hall, he was intercepted and questioned by Customs Officers. Shri Dinesh Khindria disclosed his identity as brother of Dinkar Khindria who had arrived from Tornoto by Air India Flight 186 dated 13.4.92 and on being questioned by the Customs Officer whether Shri Dinesh Khindria possessed any foreign goods including gold, silver, etc, Shri Dinesh Khindria replied in the negative. Thereafter Shri Dinesh Khindria was taken to a nearby room in the arrival hall and on his personal search two gold biscuits of 1 Kg. each bearing foreign markings were found from the back pocket and side pocket of the pant worn by him. On interrogation Shri Dinesh Khindria confessed that he had taken the two gold biscuits from his brother Dinkar Khindria who had arrived from Tornoto and that he had taken the said two gold biscuits from his brother. On the basis of said disclosure Shri Dinesh Khindria and Dinkar Khindria along with his baggage were verified. Shri Dinkar Khindria confessed that the two gold biscuits recovered from Dinesh Khindria was handed over by him in the arrival hall to evade Customs duty. Further inquiries showed that Shri Dinkar Khindria had taken two gold biscuits of one kg. each from one passenger, namely, Shri Mohit Thakur, for clearance and payment of duty on his behalf. Shri Mohit Thakur was also intercepted and questioned. Shri Thakur admitted that he had given two kg. of gold to Shri Dinkar Khindria in the arrival hall for clearance on his behalf for clearance on payment of duty as he was not eligible to import gold into India. Dinesh Khindria’s statement was obtained under Section 108 of the Customs Act in which he admitted to the recovery of two kgs. of gold biscuits of 1 kg. each from his possession. He also admitted that he had taken the gold biscuits from his brother, Dinkar Khindria in the arrival hall for taking them out without payment of duty. He also stated that he knew that clearing/possessing of gold by taking gold from a passenger and to remove the same without payment of duty was an offence and that he did this under temptation to save his brother. He could not also produce any evidence showing lawful possession of the gold by him. In the statements given by Shri Dinkar Khindria under Section 108 he stated that he had been residing in Canada for last 10 years and that he had come to India to meet his relations; that he had purchased 3 kgs. of gold in Canada out of his own earnings; that he had told Mohit Thakur in the air craft that he (Mohit Thakur) was not eligible to import the gold; that accordingly Mohit Thakur handed over two kgs. of gold biscuits (one kg. each) for clearance and payment of duty on his behalf and that he had paid Customs duty for three kgs. of gold (1 kg. brought by him and 2 kgs given to him by Shri Thakur); that out of the 3 kgs. of gold brought by him he had already handed over 2 kgs of gold to his brother in the arrival hall for taking it out without payment of duty; that Thakur had also given him foreign currency to the tune of Rs. 90,000 for payment of duty on his gold biscuits; that when he was going out of arrival hall the Customs Officers had stopped him near the exit gate and that on being questioned he had admitted to having handed over two gold biscuits to Dinesh Khindria and that he knew that the handing over of gold to someone with intent to evade customs duty was an offence and also declaring someone else’s gold and paying duty thereto on behalf of that person was an offence; and that he was to hand over 2 kgs. of gold to Shri Mohit Thakur after customs clearance and that he had brought the gold for making jewellery in India. Shri Mohit Thakur in his statement corroborated the statement given by Dinkar Khindria.
6. The appellants were issued a show cause notice alleging that they had imported and attempted to clear gold contrary to the provisions of the Foreign Exchange Regulation Act and under Section 111(d) and (f) of the Customs Act. Shri Dinesh was asked to show cause why penalty should not be imposed under Section 112 for abetting the illegal import and clearance.
7. The impugned order was passed after hearing the noticees.
8. Ld. Counsel for the appellant has argued that Shri Dinkar Khindria was an NRI who had stayed in Canda for about 10 years, and he was entitled to bring gold of not more than 5 kgs subject to payment of duty. The bringing of the said quantity of gold was therefore not an offence in the case of Shri Dinkar Khindria. The appellant had also declared and paid duty on 3 kgs. of gold declared by him. During the judicial custody, appellant Dinkar Khindria had retracted the statement obtained from him and had submitted letters to the Collector and to Chief Metropolitan Magistrate through the Superintendent of Tihar Jail, New Delhi stating that the statements obtained from him were under harassment and beating and against his consent. The appellant’s father-in-law and brother had also sent telegrams dated 14.4.92 to the President, Prime Minister and Finance Minister complaining that he had been falsely implicated and statements has been extracted from him. In reply to the show cause notice dated 26.8.92 Shri Dinkar had refuted the allegations in the show cause notice and had submitted oral and documentary evidence refuting the allegations. He had contended that he (Dinkar) had declared the gold biscuits belonging to him and paid duty thereon out of foreign currency brought by him. He had also filed DR in support of the contention. No allegation of contravention of Section 111(d) or (e) was therefore sustainable against appellant Shri Dinkar Khindria. Arguing the case of Shri Dinkar Khindria in the present appeal, Ld. Counsel has submitted that the Collector of Customs has passed the order solely relying on the statements of the appellant allegedly recorded under Section 108 of the Act without considering the retraction made by him immediately thereafter by personal letters to the Collector of Customs through the Superintendent of Central Jail alleging that the statement was not voluntary and was recorded under physical torture. The further statement obtained from Shri Dinkar Khindria and Shri Mohit Thakur were also recorded under physical torture as had been stated by them in their writ petitions. Even otherwise the statements given by co-accused could not be relied upon as has been held in various decisions of the Supreme Court in the case of Haricharn Kurmi v. State of Bihar and Ors. In view of the Notification dated 13.3.92 issued by the RBI import of 5 kgs. of gold was allowed subject to payment of Customs duty in foreign currency. The order of absolute confiscation of 2 kgs. of gold was therefore not permissible. The imposition of penalty under such circumstances was also not sustainable in view of the Supreme Court decision in . Inasmuch as the Collector had failed to give option to the appellant Shri Dinkar Khindria for redeeming the goods on payment of the fine as provided in Section 125(1) of the Customs Act, the order of confiscation was liable to be set aside. Ld. Counsel also submitted that the case made out by the Department, namely, that Shri Dinesh Khindria had came in contact with appellant Shri Dinkar Khindria, at the baggage conveyor No. Ill at arrival hall was totally unbelievable in the sense that Customs arrival hall was a strictly protected area and no person could get entry into the hall without the knowledge and permission of the Police or Customs officers manning the same. Further, the confiscation of two kgs. of gold on the basis of statement given by Shri Mohit Thakur was erroneous since there was no documentary or other evidence to show that Shri Mohit Thakur had handed over any gold or foreign currency to Dinkar Khindria. On the other hand, Dinkar Khindria had declared 3 kgs. of gold in his possession and paid Customs duty thereon and therefore the finding that 2 kgs. of gold belonged to appellant Dinkar Khindria need to be set aside.
9. Arguing the appeal of Shri Dinesh Khindria, Ld. Counsel have submitted that the allegation that Shri Dinesh (sic) [Dinkar] Khindria had entered inside the Customs arrival hall and had obtained gold biscuits from his brother Dinesh Khindria who had arrived from Canada was entirely concocted and fabricated since it was not possible for any person to get entry into the Customs arrival hall without knowledge or permission granted by the Police or Customs authorities manning the game. The appellant was only waiting outside the arrival hall in order to receive his younger brother but when after more than two hours his brother did not come out, the appellant Dinesh Kumar had approached the Exit gate of the arrival hall for making inquiries with the Customs staff. The Customs Officer in the arrival hall became very angry and shouted at him and slapped him for entering the arrival hall. During the said time his brother Dinkar Khindria who alongwith Mohit Thakur was inside the cabin in the arrival hall came out. Shri Dinkar Khindria had explained that he had brought 3 kgs. of gold before leaving Canada and he had brought the same and he had reported at the red channel counter and truely declared the same and also paid the Customs duty from out of foreign exchange brought by him. Appellant Dinesh Khindria strongly denied the recovery of any gold biscuits from his pockets. The confessional statements recorded from him and his brother by the Customs Officers were taken under physical torture, duress and coercion. The appellant as well as his brother had sent retraction letters to the Collector of Customs and the Assistant Collector, Chief Metropolitan Magistrate through Superintendent of Tihar Jail. The Commissioner had failed to consider the detailed reply sent by the appellant dated 13.11.92 alongwith supporting documents. The entire finding in the impugned order is based on the retracted statement of the appellant and his brother. Since Shri Dinkar Khindria had declared and paid duty on the gold imported by him, there was no question of Dinesh Khindria having possession of any gold. Ld. Counsel has placed reliance on the Supreme Court decision in holding that confessional statements made under coercion cannot be taken as a basis for conviction. Reliance was also placed on the Bombay High Court judgment reported in 1990 (28) ECR 4 holding that any statement recorded by the Customs authorities after detention for interrogation and under coercion amounts to arrest and statements recorded under such circumstances have no evidenciary value in the eye of law. Further, the statement given by Shri Mohit Thakur cannot be relied upon or used against the appellant as Shri Mohit Thakur was a co-accused. Further, appellant Shri Dinesh Khindria had no concern with any gold imported by his brother or by Shri Mohit Thakur, therefore penal action under Section 112 is not attracted is his case.
10. Defending the impugned order, Ld. JDR Shri M.M. Dube has stated that the two appeals presently under consideration were in relation to only two kgs. of gold recovered from appellant Shri Dinesh Khindria. The dispute relating to two kgs. of gold had been disposed of in appeal filed by Shri Mohit Thakur. As regards the appeal of Shri Dinkar Khindria, Ld. JDR submitted that in the statements given by Shri Dinkar Khindria, Dinesh Khindria and Mohit Thakur under Section 108, they had clearly admitted that Shri Mohit Thakur had handed over 2 kgs. of gold brought by him to Shri Dinkar at the arrival hall and that Shri Dinkar Khindria had handed over another 2 kgs. of gold out of three kgs. brought by him to his brother Shri Dinesh Khindria at the arrival hall to escape payment of duty on 2 kgs. of gold brought by Shri Dinkar Khindria. The total payment of duty of Rs. 1,35,000 on 3 kgs. of gold were relatable to two kgs. of gold belonging to Shri Mohit Thakur and one kg. of gold out of three kgs. of gold brought by Shri Dinkar Khindria. There was no payment for the balance 2 kgs. of gold brought by Shri Dinkar Khindria. As per the statement given by Dinkar, 2 kgs. of gold had been passed on by him to his brother Dinesh Khindria at the arrival hall. The contention of the appellants that their statements were recorded under coercion is not supported by any evidence showing that they were subjected to physical coercion. It is not conceivable that the Customs officers would have resorted to any coercive method or physical torture in a place like the arrival hall of the airport in full view of a large number of people present there. The so called retraction was clearly an after throught on the basis of legal advise obtained thereafter. Further, the statements given by the three noticees were detailed and precise and corroborated with each other in material details. Such statements cannot be tutored statements.
11. We have given due consideration to the submissions made by both the sides. We note that the Tribunal has disposed of the appeal filed by Shri Mohit Thakur and the question presently before this Bench is only in relation to two kgs. of gold recovered from the possession of Shri Dinesh Khindria. In the statement given by the present appellants under Section 108 of the Customs Act, the appellants have admitted handing over of two kgs. of gold by Shri Dinkar and Shri Dinesh with a view to taking it out without payment of duty. The allegation that the said two statements were obtained under torture and coercion is not supported by any material except the telegrams, letters etc. sent by the appellants after a period of one week and the telegrams and letters sent by their relations to various high dignitories. The statements themselves were detailed and in material particulars they find corroboration in the statements given by Shri Mohit Thakur. Therefore even assuming that the statements of the present appellants are retracted statements, having regard to the fact that these statements are corroborated by Shri Mohit Thakur, the retraction does not take away the credibility of original statements. We are therefore in agreement with the conclusion of the Collector in the impugned order. Further, the statements given by the appellants are also corroborated by the recovery of the gold from the possession of Dinesh Khindria. We also find no reason to disagree with the observation in the impugned order that it is not possible to extract statements under coercion or physical torture in a place like the arrival hall of I.G. International Airport.
12. As regards the claim of the appellants that the Collector ought not to have ordered absolute confiscation of the gold and they should have been allowed the option of redeeming the goods on payment of fine, we find that under Section 125(1), the officer adjudging the confiscation is given a discretion either to order confiscation or allow such redemption fine in lieu of confiscation. Ld. JDR had also in this connection submitted that under Section 110 of the Customs Act, the proper officer is empowered to dispose of seized goods after following the procedure therein. In view of the fact that nearly 8 years have elapsed since the seizure, it is quite possible that the disputed gold has already been disposed of under Section 110.
13. Taking into account the submissions made by the Ld. JDR, we are of the view that no useful purpose will be served in remanding the matter to the adjudicating authority for purposes of allowing the option to the appellant for redeeming the impugned goods on payment of redemption fine.
14. In the light of the above discussion, we find no reason to interfere with the impugned order and we confirm the same in so far as the present two appeals are concerned. We also do not find any reason to interfere with the imposition of penalty and amounts thereof in the facts of the case.
15. Both the appeals are rejected in the above terms.