1. This matter originally was a revision petition which has been transferred to the Appellate Tribunal and is taken up as an appeal for consideration.
2. The Appellants, M/s. Abdul Aziz & Sons, Srinagar, submitted that the penalty imposed on them was not sustainable for the following reasons: (i) The order relied upon the statement of the co-accused. In this connection the Appellants made reference to para 5 of the Order.
(ii) The adverse verdict against them was passed on the basis of (a) "not totally self-exculpatory" statement of Sarvashri Bhardwaj and Prem Verma ; and (b) exculpatory statement of Shri Ashok Mishra.
3. The Appellants submitted that a confession of an accused person is evidence only against himself and cannot be used against others- There is no evidence to corroborate these statements and. therefore, the confessional statement cannot be relied upon. In this context they relied upon Kashmir Singh v. State of Madhya Pradesh AIR 1952 SC 159, 160 etc. The Appellants also argued that the Order cannot be maintained on the basis of alleged circumstances in the absence of any corroborative evidence. As cited by them, the circumstances alleged against them appear in para 5 of the impugned order. The extracts are as follows: (a) The statements of S/Shri Bhardwaj and Prem Verma of M/s.
Mercantile Clearing Agency clearly indicate that the Appellant's firm had requested their services for the clearance of handicraft consignment of Mr. Grewal.
(b) "It is also seen from the statement of Shri Bhardwaj that the appellant M/s. Abdul Aziz and Sons appear to have been regular clients of M/s. Mercantile Clearing Agency.
4. Arguing the value of circumstantial evidence, the Appellants cited the nature of such evidence required to come to a conclusion of guilt.
The Appellants cited Rahman v. State of Uttar Pradesh AIR 1972 S.C.110, wherein inter alia it was stated : The circumstances, forming that evidence must be conclusively established and even when so established, they must form such a complete chain that it is not only consistent with his guilt but is inconsistent with any reasonable hypothesis of his innocence.
Quoting elaborately from the impugned Order-in-Appeal, the Appellants submitted that the entire matter was decided on the basis of conjecture and unreliable facts and statements taken as evidence.
5. The Departmental Representative in reply wanted to refer to the statements. The Appellant denied that he ever received copies of the statements, but it appears that the Department did despatch copies of statements of 1976, but that, there is no evidence that these were ever received by the Appellant. The Departmental Representative further argued that the Appellants themselves admitted having sold two or three items over and above what they recorded in their books, to G. Vel. This circumstance goes to prove that they were concerned in the smuggling of hashish through wooden furniture etc, mis-declared to Customs.
6. On a careful consideration we are of the opinion that the Assistant Collector and the Appellate Collector relied on circumstantial evidence that did not conclusively establish the offence against the Appellant and uncorroborated exculpatory statements from those who could be equated to co-accused in a quasi-criminal proceeding like this. The Appellate Collector relied on what he called "not totally exculpatory statement of S/Shri Bhardwaj and Prem Verma" and what he himself admits as "the exculpatory statement" of Shri Ashok Mishra. In respect of the other circumstantial evidence, a careful consideration shows that viewed in the light of what was laid down in AIR 1972 SC 110, the evidence fails the tests mentioned therein. With regard to the claim that the Appellants sold two or three items over and above the recorded sales, we must observe that it has not been shown at any stage as to what were those two or three items and whether any of these items were those from which hashish was recovered at the time of search by Customs.
7. Considering the entire matter, we are of the opinion that while a degree of suspicion exists, it cannot be held that there is even the minimum necessary evidence to hold the appellant guilty of any omission or commission inasmuch as it has not been proved that they acted to conceal the hashish in the wooden furniture etc., which was discovered by the Customs. No amount of suspicion would amount to evidence and in the absence of any reliable evidence, we hold that the penalty imposed on the Appellants is not sustainable. The appeal is allowed and the penalty is set aside.