ORDER
S. Kalyanam, Member (J)
1. Since the stay petition is coming up after the Tribunal passed the remand order in a common appeal and as the pre-deposit already made is with the Department and since both the parties are agreeable to argue the appeal today itself, accepting the pre-deposit already made by the appellant in the earlier stay petition and granting waiver of the balance, I take up the appeal itself for disposal on merits with the consent of the parties.
2. The appeal is directed against the order of the Additional Collector of Customs, Madurai dated 16-4-1992 absolutely confiscating Indian currency of Rs. 35,000/- under Section 121 of the Customs Act, 1962, the Act for short, besides a penalty of Rs. 6,000/- under Section 112 of the Act and Rs. 2,000/- under Section 74 of the Gold (Control) Act, 1968. On 9-8-1987 Customs Preventive Officers, Tondi, searched the residential premises of the appellant at No. 2/60, Muthu Bazar Street, Nambuthalai (Ramnad Dist.) and recovered one gold biscuit with foreign markings and also Indian currency of Rs. 35,000/- on a reasonable belief that the currency represented the sale proceeds of the contraband gold. The appellant gave a statement before the authorities on 10-8-1987 inter alia admitting that his son-in-law Abdul Nahib handed over the gold biscuit and Indian currency three days earlier and the Indian currency was the balance amount representing the sale proceeds of contraband gold. The proceedings thus instituted resulted in the impugned order.
3. Shri Jayaraman, the learned Counsel for the appellant submitted that the inculpatory statement is not voluntary and true and was recorded after the appellant was arrested and was recorded in the office of the Supdt. of Customs and has no evidentiary value, more particularly because of the retraction of the same on 26-10-1987. The money belonged to the appellant’s sister who had borrowed Rs. 20,000/- from one Thiru Alangen Achari of Trichy and the balance being her own money and had entrusted the same to the appellant with a view to go to Singapore. Finally the ld. Counsel prayed for release of the currency on payment of fine and pleaded for reduction in the quantum of penalty. It was further submitted that the appellant was in jail for some time and was also prosecuted before the criminal court and was fined by the Additional Chief Judicial Magistrate, Madurai (CC. 61/88) and the same was also confirmed by the Sessions Court, Madurai.
4. Heard Shri Subramanian, the learned D.R.
5. I have carefully considered the submissions made before me. The fact of seizure of currency is admitted and seizure of gold biscuit from the appellant’s residence is disputed. The seizure is proved by the Mahazar. I have gone through the confessional statement of the appellant and I am satisfied that the same was voluntary and true meriting acceptance. The appellant did not make any complaint of ill treatment or coercion by the authorities when he was remanded by the Judicial Magistrate. Even after release on bail the appellant did not immediately retract his earlier statement and I reject the belated retraction on 26-10-1987, after 2 1/2 months as an after-thought. The appellant did not avail himself of the opportunity to cross-examine the officer who recorded his earlier statement in a bid to probabilise his plea of coercion. Even the plea of the alleged loan taken by the sister is not acceptable since there is no documentary evidence in proof of the same nor any particulars as to the date on which it was taken. Therefore on consideration of the entire evidence on record I am satisfied that the charge against the appellant has been brought home and in this view confirm the findings of the adjudicating authority. Since the currency has been proved as sale proceeds of contraband gold the same is confiscable under law under the Act and accordingly I confirm the order of the absolute confiscation of the same in terms of the impugned order. The appellant has not made any claim on the gold biscuit and has indeed disowned it and its confiscation is not challenged.
6. Even as per the appellant’s statement he was only entrusted with the gold by his son-in-law. Since the gold and the currency have been absolutely confiscated and the appellant was merely entrusted with the custody of the same by his son-in-law and the appellant himself did not have any role in procuring the same, I am of the view that the interests of justice would be met if the penalty on the appellant, in the above circumstances, under the Customs Act, is reduced to Rs. l,000/- (Rupees One thousand) and the amount in excess of Rs. 1,000/- will be refunded to the appellant. While giving reduction in penalty I also take note of the fact that the appellant was in jail and was prosecuted in criminal court and was fined. Except for the above modification the appeal is otherwise dismissed.