ORDER
P.S. Bajaj, Member (J)
1. In these appeals, which have been preferred against the common order-in-original, the appellants have contested the imposition of penalties on them and confiscation of the Indian currency and scooters.
2. I have heard both sides and gone through the record. The record shows that penalty of Rs. 2,00,000/- on Shri. Kanhaiya Lal, appellant, and of Rs. 50,000/- each on other two appellants under Section 112(b) has been imposed, on account of alleged recovery of gold bars of foreign origin from the dickey of the scooters of Kanhaiya Lal and Vijay Kumar, on which they were riding, and one Raju was pillion rider on the scooter of Vijay Kumar, at that time. The Indian currency of Rs. 10,000/-was recovered from Shri Kanhaiya Lal. Regarding the seized gold bars, the Commissioner vide order dated 27.2.1993 ordered the absolute confiscation on the ground that none has come to claim the same. That order has already attained the finality. While passing that order, the Commissioner for the reasons best known to him, did not pass any order regarding imposition of penalties on the appellants, confiscation of their scooters and the Indian currency. The appellant, Kanhaiya Lal and Vijay Kumar, had from the very beginning, denied the recovery of any gold bar from them. Their alleged statements, recorded at the spot, were not subscribed by them. Those, statements were recorded at Customs House, Jodhpur, whereas they were allegedly arrested at Bar crossing at Pali, which was at a distance of 150 kms. from Ajmer where they were residing. No Panchnama regarding the recovery of the gold bars was prepared at the spot. The Panchnama and all other relevant documents were prepared at the Customs House, Jodhpur, where these appellants were brought. The panch witness, Shri Jai Singh Bhati has denied the very preparation of any Panchnama as well as the recovery of gold bars from the possession of the appellants in his presence, while the other witness, Shri Bhanwar Lal Tiwari, did not come forward to face the cross-examination.
3. The allegations of the Revenue that Kanhaiya Lal, appellant, received a call from Mohan Choudhary of Dubai and in pursuant to that call, he was supposed to deliver the seized gold bars to Dharam Chand Jain , appellant. But no tangible evidence has been adduced to prove these allegations. The alleged recovery of personal diary from the house of Kanhaiya Lal, appellant, containing certain telephone numbers, did not lead to an inference that any call was received by him from Mohan Choudhary of Dubai. None of the telephone numbers mentioned in the diary were co-related with the number of Mohan Choudhary. No incriminating document or article was recovered from his residence in order to connect his links with Mohan Choudhary of Dubai. Dharam Chand Jain, appellant, has denied in his statement that he was to receive any gold from Kanhaiya Lal and his denial does not stand falsified from any other evidence. The stand taken up by Kanhaiya Lal and Vijay Kumar, appellants , throughout had been that they had gone to Pushkar and there the Customs Officers met them, who were already having in their custody two Mohammedans from whom they affected the recovery of gold bars and one of those was known to the Customs Officers and in order to let them off, the Officers implicated them. These very facts were disclosed by them in their bail application before the Court where they were produced after the arrest.
4. The initial burden was on the Revenue to prove the recovery of gold bars from the appellants. But no tangible evidence has been adduced by them to discharge the same. The appellants had never claimed the gold bars. There is also no evidence on the record to prove the allegations of the Revenue that Indian currency of Rs. 10,000/- recovered from Kanhaiya Lal, appellant, was the sale proceeds of the smuggled sarees of foreign origin. No imported sarees were recovered from his residence.
5. In view of the discussion made above, the impugned order imposing penalties on the appellants and ordering confiscation of their scooters and Indian currency, cannot be sustained, and the same is, therefore, set aside against all the appellants. All the appeals of the appellants are allowed with consequential relief, as per law.
(Dictated & pronounced in the open court)