1. These are applications under Section 130(1) of the Customs Act, 1962 for making a reference to the High Court on certain questions said to be of law arising out of the Tribunal's order dated 29-11-1983 in Appeals No. CD(T) (Mad.) 104/80 and 105/80.
2. The reference applications arise out of a common order and are also connected with each other. They are therefore disposed of together by a common order. The brief facts relating to the case are as under. Two lorries bearing registration Nos. MYX 7985 and MYG 4219 were on specific information intercepted on the night of 30/31-12-1971 at about 2.30 A.M. and contraband goods, viz. fabrics and metallic yarn of foreign origin valued at Rs. 19,52,190/- were recovered from the lorries. Statements were recorded from the lorry drivers and the cleaner on 31-12-1971 and during the course of further investigation, statements were recorded from K.M. Ahmed and Ors. On completion of investigation and after completion of the procedural formalities under law, penalties were imposed on the applicants under Section 112 (b) (i) of the Customs Act, 1962, which were eventually confirmed by the Tribunal under its order referred to supra, out of which the present reference applications arise.
3. The learned counsel Shri M. Ratna Singh appearing for the applicants have formulated the following questions of law in the reference applications :- (1) Whether the proceedings before the Collector of Customs under Section 129 (B) is a Quasi-Criminal Proceeding or not, and if it is a Quasi-Criminal Proceeding, the Principles embodied in Criminal Procedure Code and Evidence Act will apply for the same and whether this principle was applied in this case.
(2) Whether a confession statement made by a co-accused is in the nature of an accomplice evidence. If they are in the nature of an accomplice evidence, the principle that "an accomplice evidence is unworthy of any credence unless it is corroborated in all material particulars" was applied in this case or not.
(3) Statement of a co-accused is something given behind the appellant and it is a very weak piece of evidence. Supposing this co-accused figures as a witness against this appellant how far that evidence can be relied upon is a matter, which ought to have been considered by the Hon. Appellate Tribunal.
(4) Among the two drivers one has given two statements on two different dates and when it was pointed out by the appellants, that they are telling a lie basing upon the contradictory version given by them in those statements. It was erroneous on the part of the Tribunal to keep by one statement and to say that they shall rely upon only one set of statements. The statements of these two persons should have been read as a whole and should have been understood as a whole. The reasons given by the Tribunal to rely upon only one statement is that it is the earlier statement. But the Tribunal ought to have held that the 2nd statement would have been more voluntary than the first one as the second statement was given by the driver after he was released on bail and not while he was under custody or surveilance. This approach is against the fundamental principles of natural justice. Is not an order which does not consider the totality of the evidence illegal (5) In Para 13 of the judgment, the Tribunal held that Haji K. Abdulkhader of Poinachi was the owner, user and also the person in control of lorry MYG 4219 and also the registered owner, user of lorry MYX 7985. In the same para it is stated "that the adjudicating authority has observed in Para 16.5 of the order that the statement of the lorry driver K.M. Ahammed alias Ahmmedkunhi disclosed that the two lorries under seizure belongs to the family of Kallatra Mahin. Indisputable facts remains that Kallatra Mahin and Haji K.A. Abdulkhader are related to each other and driver K.M. Ahammed who was found driving the lorry MYX 7985 is admittedly a relation of Kallatra Mahin himself and was staying with him attending to various items of work as per his instructions, as clearly evidenced by Kallatra Mahin's statement dated 4-1-1972 before the Superintendent of Customs". It is respectfully submitted that neither K.M. Ahammed nor Kallatra Mahin or Haji K. Abdulkhader (Poinachi) has given any statement (a) that they are related to each other (b) that driver KM. Ahammed who was found driving the lorry MYX 7985 was staying with Kallatra Mahin attending to various kinds of works as per his instructions, which is the basis for finding these appellants guilty. Unfortunately these facts are not born-out by record.
Whether a judgment which is not based on facts born-out by records can be legally accepted (6) Now it will be seen from the last part of this para that because Kallatra Mahin is related to Haji Abdulkhader and also because he is related to K.M. Ahammed, the Hon. Tribunal has come to the conclusion that Kallatra Mahin is the owner of the contraband goods under seizure.
(7) In Para 15, the Tribunal agreed that the decision reported in AIR 1961 S.C. 264, that the burden of proof is on the Customs Authorities and they have to bring home the guilt of the person alleged to have committed a particular offence under the said Act by adducing satisfactory evidence. It is submitted with due respect that the Tribunal went wrong in assessing the guilt of the appellants by relying upon only one set of statements.
(8) The Hon. Tribunal should refer to the totality of the evidence in a given case. Considering only one statement when a person has given two statements which are prevaricative is illegal and non- considering of the statements given by the appellants and giving no reason for not accepting the same is also an illegality.
(9) The Tribunal in the judgment has stated that the counsel has not challenged very much about the voluntary nature of the confession statement made by the persons other than the appellants. It is respectfully submitted that the appellants have submitted that the confession statements cannot be relied upon as it is not voluntary, as born-out by records which will show that the statements have been retracted. When this point was raised in the appeal memorandum the Tribunal ought not have said that the appellants in this case are accepting the confession statement. If the Tribunal has proceeded on the assumption that the statements are voluntary as admitted by the appellants then again it is an error apparent on the face of record which violates the fundamental principles of natural justice.
(10) The Tribunal ought to have held that the principles of Section 123 of the Customs Act will not apply in the case of the appellants and therefore should have approached the case in an entirely different manner. In the absence of any cogent and satisfactory evidence the order should not have been passed. But the Tribunal wrongly applied the principles enunciated in the Decisions reported in AIR 1980 S.C. 593, AIR 1962 S.C.R. 358, AIR 1975 S.C. 182. It may be noted that in this case there is no seizure from the possession of the appellants nor are there any confession statements from the appellants.
(11) Again the Tribunal, as seen from Para 5 of the Judgment, proceeded on the assumption that the statements recorded on 31-1-1971 from the two drivers of the lorry and cleaner, implicates Haji K. Abdulkhader of Poinachi. In fact, these statements do not even make a reference of Haji K. Abdulkhader. Therefore, the Tribunal proceeded on an assumption that Abdulkhader Haji's name has been referred to in the first statement. The Tribunal having given emphasis and relied upon only on the first statement should have therefore exonerated Haji Abdulkhader of Poinachi.
(12) Again in Para 9 of the order this Hon. Tribunal has given emphasis on the two earlier statements dated 31-1-1971 of the 2 drivers implicating Haji Abdulkhader of Poinachi which read as follows. As correctly observed by the Collector, the statements of two lorry drivers are inculpatory and confessional and when appellants Kallatra Mahin and Haji K. Abdulkhader (Poinachi) are implicated by the two lorry drivers, they certainly deserve consideration under law in the light of other materials available on record. We are inclined to accept the earliest statements of the two lorry drivers, and the cleaner as true and voluntary and the implication of the appellants by them is well-corroborated by other materials on record". The judgment is proceeded on the footing that there is corroboration to the statements of the lorry drivers and cleaner as far as Poinachi is concerned in their earliest statements. If they have not mentioned anything about Poinachi at all in the earliest statements it looks very strange how there could be a corroboration for the implication of Haji K. Abdulkhader of Poinachi. This is an illegality.
(13) The Tribunal has failed to notice that MYG 4219 was released to K.M. Ahammed, the Registered owner by the Customs Department and now to fasten the ownership and possession of the lorry to both Haji Abdulkhader and Kallatra Mahin is unreasonable.
(1) Proceedings under Section 129B of the Customs Act is not quasicriminal proceedings and as such principles embodied in Cr.
P.C. and Evidence Act are not applicable; (2) Confessional statements of persons who are accomplices are admissible in law and departmental proceedings under the provisions of the Customs Act could not be said to be vitiated merely by the reason of the fact that they were based on consideration of confession of co-accused, especially when such confession is only one of the pieces of evidence.
(3) If there are contradictory statements from a witness or a person it will not be improper to place reliance on the earliest version if the same is found to be otherwise legally acceptable. The statements of the appellant Kallatra Mahin dated 4-1-1972 Abdul Ibrahim dated 13-1-1972 and K.M. Ahammed dated 31-12-1971 would factually implicate the appellants in respect of the charges proved against him and no question of law arises for reference.
5. The learned counsel for the applicants while arguing the reference applications, confined himself only to questions 1, 2, 4, 5, 10 and .11 mentioned in the reference application and did not press others either because the other questions were overlapping and connected or because no question of law arose out of them for reference. We shall now take up the submissions of the learned counsel for the applicants.
6. It is contended under question No. 1 that the proceedings before the Collector of Customs under Section 129B of the Act is a quasi-criminal proceedings and the principles embodied in the Cr. P.C. and Evidence Act will apply for the same and they have not been applied in the impugned order of the Tribunal. We do not accept the contention of the learned counsel that the principles embodied in Cr, P.C. and Evidence Act have not been applied in the instant case. The Tribunal has found on facts and on materials the appellants guilty of the charges levelled against them and so there is no merit in this submission of the learned counsel. Apart from the mere ipse dixit of the applicants in this regard, the learned counsel was not able to substantiate either on the basis of materials available on record or on the basis of any reasoning in the judgment of the Tribunal that principles of natural justice and principles which would be applicable in a quasi-criminal proceedings have not been applied wherever necessary in the instant case.
7. The next submission of the learned counsel was that the confessional statement made by a co-accused is in the nature of an accomplice's evidence and the same is unworthy of credit unless corroborated in material particulars. It should be borne in mind that the appellants are not first of all accused and as such the rules relating to the evidentiary value of a co-accused would not arise strictu sensu in this case. Even though under criminal law a confessional statement of a co-accused cannot be per se evidence within the mischief of Section 3 of the Evidence Act the Madras High Court in its judgment reported in 1978 T.L.R. 1735 in the case of R.S. Kalyanasundaram v. Collector of Customs, Madras, to which reference has been made in Para 19 of the Tribunal's order, has held that departmental proceedings under Section 112 of the Customs Act could not be said to be vitiated merely because they were based on consideration of the confession of the co-accused especially when such confession was only one of the pieces of evidence taken into consideration. This apart, the law is also well-settled by the highest court of the land that the testimony of an accomplice may be treated as substantive evidence and is evidence under Section 3 of the Evidence Act, though very weak and tainted, whereas the confession of a co-accused stands on a different footing. The other persons concerned in the transport of the contraband goods in the instant case could only be characterised as accomplices and this fact has been borne in mind by the Tribunal as evidenced by the discussion in Para 17 of its order. The Tribunal has, on factual consideration, found that appellant Kallatra Mahin has been proved to be the owner of the contraband goods under seizure and has played an active part in transport of the same and appellant Haji Abdulkhader was clearly liable, on the basis of materials available on record, for a penalty under Section 112(b)(i) of the Act. Since the above|findings of the Tribunal are based on factual consideration, no question of law, as contended for on behalf of the applicants, arises for consideration.
Hence this point is also answered against the applicants.
8. The next contention of the applicants that the efforts of the Tribunal in accepting and acting upon the earlier statements of the drivers in preference to their later statements are violative of the fundamental principles of natural justice is clearly misconceived. It is welt settled that quasi-judicial authorities are entitled and indeed bound to scan, sift and weigh the evidence and assess them by separating the chaff from the grain. If the earlier version of a particular witness is found acceptable and credit-worthy, the evidentiary value of the same is not rendered negatory merely because at later point of time a contradictory version is given by the witness.
The Tribunal has, on consideration of facts, found the earliest statements of the two lorry drivers and the cleaner were true and voluntary and the implication of the appellants by them is found to have been well corroborated by other materials on record as well. We therefore do not find any force in this submission of the learned counsel and reject the same.
9. The next submission of the learned counsel was that the finding of the Tribunal that the appellants are related to each other and the driver K. M. Ahammed who was found driving lorry No. MYX 7985 is admittedly a relative of appellant Ktillatra Mahin and was staying with him attending to various items of work is factually incorrect and a finding on incorrect fact would amount to a question of law meriting a reference. The Tribunal, on analysing the factual circumstances with reference to the connection between the appellants and the drivers of the lorries, has adverted to Para 16.5 of the order of the adjudicating authority. The important factor to be borne in mind is the interest and connection between the appellants on one hand and the drivers of the vehicle on the other hand, and the interest of the appellants in the vehicle. These are essential and relevant factors regarding the charge against the appellants. The earliest statements of the two lorry drivers who were driving the vehicles containing the contraband and the cleaner have been found by the Tribunal to be true and voluntary and the implication of the appellants by them has also been corroborated by other materials. In such a context, whether the driver K. Ahammed was staying with appellant Kallatra Mahin or related to him is a very minor and insignificant point and even if there be a minor factual discrepancy in this regard, it is totally inconsequential regarding the appreciation of the charge against uie appellant. What is relevant is only the statements of the lorry drivers, the cleaver and the appellants and other materials adverted to by the Tribunal in this order to find out the culpability of the appellants in regard to the charges levelled against them. We, therefore, do not find any force in this submission of the learned counsel, 10. The next submission of the learned counsel was with reference to the inapplicability of the presumption under Section 123 of the Customs Act against the appellant and the erroneous application of the principles enunciated in the various rulings of the Supreme Court adverted to by the Tribunal in this regard. The Tribunal has, on an analysis of the materials, found that even if Section 123 of the Customs Act is totally excluded out of consideration, the findings of the adjudicating authority are maintainable on other facts and circumstances of the case. Indeed, the Tribunal has found in favour of the appellants that Section 123 of the Act is not applicable to the facts and circumstances of this case because the contraband goods were not recovered from the actual possession of the appellants within the meaning of Section 123 of the Act. The submission of the learned counsel that appreciation of the rulings of the Supreme Court referred to in Para 19 of the Tribunal's order is erroneous is clearly untenable. The Tribunal has analysed the various rulings of the Supreme Court, particularly where the Supreme Court has considered the applicability and scope of Sections 106 and 114 of the Evidence Act in circumstances where the presumption under Section 123 of the Customs Act could not be invoked. When the Tribunal has factually found that the appellants were concerned and connected with the contraband under seizure on the materials on record and has not applied Section 123 of the Customs Act at all against the appellants, it does not stand to reason how a question of law is said to arise for reference. It is relevant to note in this context that the applicants have merely pleaded and argued that the Tribunal "should have approached the case in an entirely different manner". The learned counsel was not able to substantiate it any better than what he had pleaded in the reference applications. We, therefore, reject this submission of the applicants also as devoid of substance.
11. The last submission of the learned counsel was with reference to the appreciation of evidence of the lorry drivers vis-a-vis appellant Haji Abdulkhader (Poinachi). It is fundamental that appreciation of evidence is purely a question of fact unless the same is found or proved to be perverse or arbitrary. The mere fact that a different view also is possible on consideration of a piece of evidence or circumstance is certainly not a question of law meriting reference to the High Court. We, therefore, reject this submission of the learned counsel as legally untenable.