ORDER
A.V. Savant, J.
1. Heard all the learned Counsel, Shri Rege for the petitioner; Shri Patwardhan for respondents Nos. 1 and 2 and Shri Salvi, A.P.P. for the State. Rule.
2. Having regard to the short controversy that is raised before us, namely, as to whether the amount of penalty under Section 112(b) of the Customs Act, 1962 should be Rs. 15,000/- or Rs. 5,000/-, we do not think it necessary to keep the matter pending in this Court. Hence, by consent, rule made returnable forthwith and heard Counsel.
3. In respect of an incident which occurred on the night of 10th October. 1983 on the shore of Aronda Creek near Terekhol, as many as 20 accused including the present petitioner Vijay Arondekar, who was accused No. 6, were tried in Reg. Criminal case No. 11 of 1986. in the Court of the Judicial Magistrate First Class. Vengurla for the offences punishable under Sections 135(1)(b) of the Customs Act and Section 5 of the Import and Export (Control) Act, 1947 read with Section 120B of I.P.C. At the trial, the prosecution fairly stated that there was no incriminating evidence against the first 7 accused including the petitioner. On consideration of the evidence against the other accused, all the 20 accused were acquitted of the offences with which they were charged. The judgment was delivered on 28th February, 1990. It is stated before us that there is no appeal against this order of acquittal.
4. However, in respect of the adjudication proceedings before the Collector of Customs Pune, it was found that some persons had acquired possession of, or were in some manner concerned with carrying, removing, depositing or concealing or in any manner dealing with the goods which they knew or had reason to believe were liable to be confiscated under Section 111 of the Customs Act. Apart from the order of confiscation of the goods under Section 111(d) of the Customs Act, penalty was imposed under Section 112(b) by the Collector of Customs, Pune by his judgment and order dated 29th September, 1984. As far as the petitioner’s role is concerned, the finding of the Commissioner appears to be that the petitioner was present on the Aronda shore and his friend Anil Naik had taken his scooter when the Customs officers arrived at the scene. The petitioner was accosted. His statement was recorded where he pleaded that he was not concerned with the smuggling of the goods in any manner. The order of the Collector further mentions the fact that though the petitioner was initially detained under the provisions of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, he was ordered to be released by the Advisory Board. Penalties of varying amounts from Rs. 500/- to Rs. 50 lakhs have been imposed. As far as the petitioner is concerned, the penalty imposed was Rs. 1,00,000/-.
5. Being aggrieved by the said order dated 29th September, 1984 the petitioner preferred an appeal before the Customs, Excise and Gold (Control) Appellate Tribunal, Western Region, Bench Mumbai. While-admitting the appeal, the Tribunal passed an order requiring the petitioner to deposit a sum of Rs. 5,000/- within a month of the date of the order namely 27th October, 1995. The petitioner has complied with that order,
6. When the petitioner’s appeal was taken up for hearing by the Tribunal on 10th June, 1997, unfortunately the petitioner could not. remain present. Mis brother applied for adjournment. Since, however, the appeal was of 1985, the Tribunal refused to adjourn the appeal. It recorded a finding that the petitioner’s scooter used to go to the shore where the goods were unloaded and that he was helping the landing party. However, the Tribunal reduced the amount of penalty from Rs. 1,00,000/- to Rs. 15,000/-.
7. Against this order dated 10th June, 1997, the petitioner preferred an application for modification/rectification of the order under Section 129B of 1 he Customs Act. The petitioner pointed out that it was on account of his suffering from chronic amebic dysentry that he was presented from appearing on 10th June, 1987. He was not able to travel from Aronda to Mumbai as a result of the said ailment and, hence, there was sufficient cause for his absence on 10th June, 1987. He, therefore, prayed for being given an opportunity of being heard on merits so that, that amount of penalty could be reduced.
8. The Tribunal heard this application on 29th December, 1997 and rejected the same. The plea of the petitioner that amount of penalty should be reduced from Rs. 15,000/- to Rs. 5,000/- did not find favour of the Tribunal. The two orders dated 10th June, 1997 and 29th December, 1997 passed by the Tribunal have been challenged before us by Shri Rege.
9. As indicated at the outset, the only controversy is whether the amount of penalty should be Rs. 15,000/- or Rs. 5,000/- as contended by the petitioner. We have perused the order passed by the Collector on 29th September, 1984. Different roles have been attributed to the persons who were principally involved in the smuggling operations whose boats were vised for smuggling, carrying, removing and dealing with the goods which they knew or had reason to believe to be liable for confiscation under Section 111 of the Customs Act. No such active, role has been attributed to the petitioner. It is true that he was present on the shore and his scooter was used by Anil Naik to reach the shore. Anil Naik himself has been penalised to the tune of Rs. 1,00,000/-. Persons like Digambar Bhagwan Kubal, Ravindra Tolaram Yeragi and Ramesh Krishna Bata whose boats were used for transporting the contraband goods have been fined Rs. 5,000/- each. As indicated earlier, not only has the petitioner been acquitted by the learned Magistrate on 28th February, 1990, but even the order of detention against him could not be sustained by the Advisory Board.
10. Having regard to the very insignificant role attributed to the petitioner, in our view, interests of justice would be met by reducing the amount of penalty from Rs. 15,000/- to Rs. 5,000/– as has been clone in the case of Digambar Bhagwan Kubal, Ravindra Tolaram Yeragi and Ramesh Krishna Bata. In the circumstances, the petitioner is entitled to succeed but only partially. We therefore, set aside the order of the Tribunal passed on 29th December. 1997 and modify the order dated 10th June. 1997 by reducing the amount of penalty from Rs. 15,000/ – to Rs. 5,000/- which has already been deposited by the petitioner pursuant to the order dated 27th December. 1995 passed by the Tribunal while admitting the appeal.
11. Rule is accordingly made partly absolute as above with no order as to costs.