1. The Revision Application filed before the Government of India against Order No. 222 of 1980, dated 1-3-1980 passed by Central Board of Excise and Customs statutorily stood transferred to the Tribunal for being heard as an appeal.
2. The brief facts necessary for the disposal of this appeal may be stated as under : On 27-7-1977 the Officers of Air Customs, International Airport, Bombay detained one red coloured and another black coloured suitcases and examined them. On examination, they were found to contain among other things 19 reels of feature film titled 'Paapi'. They seized the said 19 reels in the reasonable belief that they were being smuggled out of India and hence liable to confiscation under Section 113 of the Customs Act, 1962 (to be hereinafter referred to as the Act).
3. During the investigation several persons were interrogated. The investigation disclosed that the film under seizure had been surreptitiously removed from the Western Railway Grant Road Parcel Depot, Bombay. The investigation further disclosed that the film was to be smuggled out by a passenger by name Ismail Mohamed Musabih. The investigation also disclosed that the appellant Shri M.M. Gehi had stayed with that Ismail Mohamed Musabih in a Hotel at Dadar and had arranged for his Air Ticket and further was a party to the attempted export of the film. After the completion of the investigation show cause notices were issued to the appellant and others. After the receipt of the replies the Additional Collector adjudged confiscation and penalty. After consideration of the materials placed before the Additional Collector held that there was enough evidence to establish that the appellant attempted to export the film under seizure. Having regard to his finding he imposed a personal penalty of Rs. 25,000/- on the appellant. Being aggrieved by the said order the appellant preferred an appeal before the Central Board of Excise and Customs. The Board, however, confirmed the order passed by the Additional Collector.
As stated earlier, the appellant thereafter preferred a Revision Application before the Central Government and the same stood transferred to the Tribunal.
4. During the hearing of this appeal Shri S.A. Siwani the Learned Advocate for the appellant contended that the Additional Collector as well as the Learned Member Shri A.K. Bandyopadhyay had not properly considered the evidence of the appellant. They had totally overlooked the answers given by Shri S.V. Harshe in his cross-examination. If they had taken into consideration the answers given by Shri S.V. Harshe then they could have been satisfied that there was no evidence whatsoever to connect the appellant with the alleged attempt of illegal export. It was also urged by Shri S.A. Siwani that the finding of the Additional Collector was that the appellant was attempting to export various films including the film under seizure but whereas the finding of the Board was that the appellant had abetted the attempted illegal exports of the film. But then in the show cause notice there was no allegation that the appellant abetted the attempted export of the film. It was then contented by Shri Siwani that both the authorities had ignored the fundamental principles of Criminal Jurisprudence and Evidence Act. They had relied on the statements of co-accused and accomplices without there being any corroboration. Besides they had failed to take into account that the co-accused have retracted their statements. Shri Siwani also contended that the Additional Collector as well as the Board had relied on the evidence of Shri Himmatbhai Barai. His statement did not relate to the film in question but related to some other attempted export of a film. Finally, Shri Siwani submitted that there was hardly any evidence against the appellant to establish his guilt. He, therefore, prayed that the personal penalty imposed on the appellant may be set aside.
5. Shri Krishan Kumar for the Department, however, contended that the order passed by the Board is correct and based on evidence and do not require to be interfered with. He prayed that the appeal may be rejected, 6. Considered the submissions made on both the sides. The short question for consideration is whether the order passed by the Additional Collector and confirmed by the Board requires to be interfered with.
7. In order to appreciate the various contentions urged by Shri Siwani, it is necessary to refer to the findings of the Additional Collector insofar as it relates to the appellant. The relevant portion reads as under : "Shri Gehi had known Chandiramani, Musabih and also Dev Bhatia very well. There is evidence on record that is Shri Harshe' s statement dated 6-7-1977 to show that Gehi was also responsible along with Dev Bhatia and others in the smuggling of the film 'Geeta Mera Naam' which was seized in the month of March, 1977. Further evidence has been brought on record i.e. statement of Shri Harshe, Shri Himmatbhai Barai and supported by the documents seized from the hotel room of Himmatbhai that Shri Moti Meghraj Gehi has been illegally exporting the Indian feature film with the assistance of various persons for Ismail Mohamed Musabih. Shri Gehi had earlier failed in his attempt to smuggle out some films. He had paid Rs. 9,000/- to Shri Himmatbhai Barai. He had various meetings with the Arab Ismail Musabih prior to the seizure of the film 'Paapi' and even went to the extent of getting the Arab's ticket confirmed for his departure on Air India Flight along with the two others. These constitute enough evidence to establish that Shri Gehi was attempting to export various films including the film under seizure 'Paapi'. Further, immediately after the seizure, he went underground till he was finally traced on 1st of October, 1977 when he was located at Mahim in a shop. His attempt was to give a slip by not disclosing his correct name when the other two persons who were sitting with him disclosed their real names. This further corroborates the guilty mind of Shri Gehi inasmuch as he had already come to know of the seizure of the film 'Paapi' at the airport. Shri Harshe has also stated that Moti M. Gehi requested him to telephone one Hariharan of Calcutta and advised him to destroy and evidence available with him and also not to disclose his identity. It may also be noted that he made the necessary arrangements for the bail amount of Shri Chandiramani in cash by borrowing the same on his name. He had further informed Harshe to intimate Shri D.N. Hegde and Dev Bhatia to abscond. Dev Bhatia and Gehi had arranged for the departure of the Arab by jumping bail. Shri Gehi stayed in Hotel Shantidhoot along with an Arab and put through telephone calls to many parties in this case. He had even gone to the extent of telephoning Harshe that he had fooled the Customs authorities by giving false statements and thus misguiding them. Finally, Gehi could not explain as to what genuine business dealing, if any, he had with the Arab Ismail Musabih." 8. The mere perusal of the order set out above clearly indicates that the Additional Collector had not only relied on the evidence of Shri Harshe, Shri Himmatbhai Barai but also relied on various other circumstances to implicate the Appellant with the alleged attempted export of the film 'Paapi'. It is true that the Additional Collector had not referred to the answers given by Shri Harshe in his cross-examination. In law, the evidence consists not only of what is stated in the examination-in-chief but also what is stated in the cross-examination and re-examination. The statements made by the witnesses under Section 108 of the Act may be considered as the statements made in the examination-in-chief. There was no procedure of examining the witnesses in the presence of the persons against whom the statements were sought to be made use of. The procedure invariably followed in the adjudication proceedings was to furnish the copies of the statements of the witnesses and the documents on which the department relies on to substantiate the allegations to the persons to whom show cause notices were issued. If the persons, against whom show cause notices were issued request for cross-examination of any of the witnesses, then the Adjudicating authority after considering the request offers the witness or witnesses for cross-examination. If once the Adjudicating authority allows cross-examination of any witness then in law the said Adjudicating authority is required to take into consideration the answers or statements made during the cross-examination while considering the allegations or the charges levelled against the persons who are charged with contravention of -the provisions of the Act.
9. Shri Siwani is justified in contending that the Additional Collector as well as the Board had totally failed to take into consideration the answers given by Shri Harshe in his cross-examination.
10. Let me more examine as to what extent the orders passed by the authorities below got vitiated by reason of not taking into consideration of the answers given in the cross-examination. In his statement recorded under Section 108 Shri Harshe had narrated the conversation that took place between him and the Appellant. The relevant portion of Shri Harshe's statement are found at page 30 of the Additional Collector's order. If the statement of Shri Harshe is accepted as true then the appellant had informed Shri Harshe that the film in question was clandestinely removed from the Railway Yard Parcel Office. Shri Harshe's statement further established that the appellant on 4-10-1977 telephoned him and informed him that he was taken by the Custom's Officers in connection with the feature film 'Paapi' and that Shri Harshe should not communicate this to any other person and should only contact Shri Dev Bhatia and Shri Balasaheb and tell them that they were also wanted by Customs. It was further stated by Shri Harshe that the appellant had informed him to tell Shri Balasaheb Hegde to remove whatever documents the later has with him or to destroy them. It was also stated by Shri Harshe that the appellant had informed that the film 'Paapi1 was removed unauthorisedly with the Assistance of Shri Balasaheb Hedge and the expense incurred in the removal of the film were borne by the appellant. He had also spoken to various other persons in the Air India Office for smooth clearance of the baggages of Shri Ismail Mohamed Musabih.
11. Now coming to the cross-examination this is what Shri Harshe had stated "I had nothing to do with the alleged smuggling of the film, 'Geeta Mera Naam'. I have not received anything from anyone for smuggling of the said film. Gehi did not tell me anything regarding procuring the film 'Paapi1 or attempting to export it. In my earlier statement I had deposed that Gehi took part in the smuggling of film 'Geeta Mera Naam'. That is not correct. I had made this wrong statement as I had a grudge against Gehi because he refused to give me the whereabouts of Mr. Dev Bhatia." 12. In this cross-examination Shri Harshe had given a go bye to his earlier statement. Shri Harshe had specifically admitted that the appellant did not tell him anything regarding procuring or attempting to export-the film 'Paapi'. But then Shri Harshe was not asked any question as to how and why he made the earlier statement insofar as it relates to the film 'Paapi1 even though he was specifically asked regarding the film 'Geeta Mera Naam'. It was not brought out in his cross-examination that the earlier statement of Shri Harshe was not voluntary or true. There was not even a suggestion that the earlier statement had been obtained by duress or coercion. As has been observed earlier the evidence had to be considered as a whole.' Therefore, one cannot totally ignore the statement made under Section 108 particularly when it is not shown that the statement was not voluntary or otherwise tainted or for any other good and sufficient reasons.
13. The wealth of information given by Shri Harshe at that stage could not have been invented by him. It is significant to note that according to Shri Harshe the appellant told him not only regarding the removal of the film but also that Shri Harshe should intimate others that they should destroy all the evidence in connection with the film. After careful consideration of Shri Harshe's evidence as a whole, I am not inclined to place much reliance on his statement made during cross-examination. It is quite probable that Shri Harshe was won over by the appellant. The statement of Shri Harshe clearly implicates the appellant in the attempted export of the film in question. If that statement could be accepted then the appellant cannot successfully challenge the findings of the Additional Collector. Though there is considerable force in the contention of Shri Siwani that the Learned Member of the Board had not properly appreciated the evidence against the appellant and had also overlooked to consider Shri Harshe's statement given in the cross-examination, that by itself would not be sufficient to set aside the personal penalty imposed against the L appellant by the Additional Collector and confirmed by the Board. The setting aside of the Board's order would not by itself absolve the appellant's guilt. If the order passed by the Additional Collector is otherwise legal and correct, the same cannot be set aside because of the infirmity in the order of the Board. As has been pointed out earlier non-consideration of the answers given in the cross-examination did not matterially affect the Additional Collector's findings as to the complicity of the appellant. With this let me proceed to consider the legal contentions urged by Shri Siwani.
14. It was the contention of Shri Siwani that Shri Harshe was a co-accused and therefore his statement should not be made the basis to establish the charge levelled against the appellant. There is no force in his contention. The statement relied upon by the Additional Collector was the statement recorded under Section 108 of the Act. At that time there was no complaint filed either against the appellant or against Shri Harshe or against any other persons and in the said circumstances it cannot be said that either Shri Harshe or the appellant were the accused persons. Therefore, it is not proper to call Shri Harshe as a co-accused. Further, the proceedings before the Adjudicating authority is not a prosecution. The proceeding is not strictly governed by the provisions of the Code of Criminal' Procedure or Evidence Act. But then the fundamental principles of those provisions, no doubt, have to be borne in mind by the Adjudicating authority besides the principles of Natural Justice. There is no complaint that principles of Natural Justice had not been followed. As a matter of fact, along with the show cause notice the appellant was informed of the evidences on which the department relies on. As regards the principles of Criminal Jurisprudence and Evidence Act there had been no grave error on the part of the Additional Collector. The only aspect which had been overlooked by the Additional Collector was not considering the answers given in the cross-examination. I have already referred to the answers given in the cross-examination and had held that those answers do not in any way affect the findings. Therefore, the complaint of Shri Siwani that the orders are vitiated by not following the fundamental principles of Criminal Jurisprudence and Evidence Act cannot be accepted.
15. The next legal contention of Shri Siwani that Shri Harshe was an accomplice and the evidence of an accomplice is of a very weak nature and it requires material corroborations before it could be made use of against another accused. It is rather difficult to accept the contention of Shri Siwani that Shri Harshe was an accomplice. No show cause notice had been issued to Shri Harshe. No penalty also had been imposed on Shri Harshe. There was no allegation that Shri Harshe was in any way concerned in the attempted export of the film 'Paapi'.
Therefore, Shri Siwani was not correct in contending that Shri Harshe was an accomplice.
16. As a matter of fact, it will not be illegal to act upon the uncorroborated evidence of an accomplice but the rule of prudence dictates that it is unsafe to act on the evidence of an accomplice unless it is corroborated in material particulars. Even if I have to accept Shri Siwani's contention that Shri Harshe was an accomplice, the findings of the Additional Collector was not solely based on the statement of Shri Hershe but he has taken into consideration the various circumstantial evidences established against the appellant. I am unable to find any infirmity in the order excepting the one viz.
non-consideration of the cross-examination portion in the order passed by the Additional Collector. But as stated earlier non-consideration of the cross-examination had not seriously affected the findings of the Additional Collector.
17. On consideration 6f all the aspects, I see no merit in this appeal and accordingly I reject the same.