1. Both these appeals arise out of the order-in-original bearing No.SD/INT/AIU/112/83AP dated 23.7.1984 passed by the Additional Collector of Customs, Preventive, Bombay.
2. As these appeals involve common questions of facts and law and as they arise out of an order, they are clubbed together heard together and hence this common order.
3. The brief facts necessary for the disposal of these appeals may be set out as under : On 22.9.1983, the officers attached to the Air Intelligence Unit on suspicion stopped the appellant in appeal 775/84, Shri Parmar. After questioning Shri Parmar, the Superintendent in charge of Air Intelligence Unit on suspicion examined the baggage of Parmar in the presence of panchas. Among other things, the officers found foreign currency wrapped around a small bundle of agarbathi sticks. Shri Parmar was questioned as to the amount of currency he had in his hand bag. Shri Parmar appeared to have told that he had 5000 US dollars. He further appeared to have told that he had 500 Singapore dollars on his person. He also appeared to have taken 500 Singapore dollars from his pant pocket. Thereafter, the officers took him to the office of the I.A.C. and a detailed examination of the baggage was conducted. This examination resulted in the recovery of 72 Saudi Riyal notes of 100 denomiantion, 60 US dollar notes of one hundred denomination and on searching the person of Parmar the officers recovered 500 Singapore dollars. Thus the officers were able to recover foreign currency equivalent to Indian Rs. 82,010/-. The statement of Shri Parmar was recorded. He implicated the appellant in appeal 741/84, viz. Shri Ishwar Ramchand Gidwani. All the currencies were seized under panchanama. On the same day, the office premises of Shri Gidwani was also searched in the presence of panchas. No incriminating article was found. After ascertaining the residential address of Shri Gidwani the officers proceeded to his residence. They found the premises' locked. During the investigation the- statement of one Shri Ashok N. Bajaj was recorded. His statement revealed that Shri Parkar was employed in the shop of Shri Gidwani since about two years, prior to 22.9.1983 and that he was bringing the goods from outside and selling them in the shop. After completion of the investigation, notices were issued to the two appellants herein as to why the seized foreign currencies should not be confiscated and why personal penalty should not be levied against them. The Appellant Shri Gidwani by his reply dated 14.3.1984 denied his connection with the alleged seizure. Shri Parmar contended among other things, that his statement was not correctly recorded. The admissions contained therein were extorted from him by resorting to physical violence and dire threats.
4. The Additional Collector of Customs adjudged confiscation and penalty. On consideration of all the materials, he ordered confiscation of the seized currency and also imposed personal penalty of Rs. 15,000/-each on the two appellants herein under Section 114 of the Customs Act.
5. Being aggrieved by the order of the Additional Collector as stated earlier, the two appellants herein have preferred these appeals.
6. During the hearing of these appeals, Shri S.B. Kher, the- learned Advocate for the appellants submitted that the adjudicating authority relied on the statement of Shri Parmar dated 22.9.1983, the statement of Shri Ashok Bajaj and the circumstances of absence of Shri Gidwani from Bombay for the purposes of imposing personal penalty of Rs. 15,000/-on Shri Gidwani. Shri Kher contended that Shri Bajaj's statement even if accepted in its entirety did not establish any nexus between Shri Gidwani and alleged offence committed by Shri Parmar. Shri Kher further submitted that along with his reply to the show cause notice, Shri Gidwani had attached a medical certificate to the effect that Shri Gidwani was an inpatient in a Nursing home at Pune from 18.9.1983 to 25.9.1983. Therefore, the said certificate not only falsified the statement of Parmar that Shri Gidwani had accompanied him upto the Airport but also satisfactorily explains Gidwani's absence during the relevant time.
7. As regards the statement of Shri Parmar, Shri Kher submitted that Parmar was arrested on 29.3.1983 and was produced before the Chief Metropolitan Magistrate and was remanded to judicial custody by the Learned Magistrate. On 24.9.1983, Shri Parmar addressed a letter to the Chief Metropolitan Magistrate from the prison retracting his statement implicating Shri Gidwani. In the circumstances, according to Shri Kher, the adjudicating authority committed an error in relying on the statement of Shri Parmar which is nothing but a confession of a co-accused and cannot be admitted in evidence except for lending assurance to other evidence available against Shri Gidwani; but then there was no other evidence whatsoever to implicate Shri Gidwani. Shri Kher, therefore, submitted that the personal penalty on Shri Gidwani was imposed without there being any evidence against him and as such it is liable to be set aside.
8. Shri Kher who appeared for Shri Parmar did not contend that there was any illegality in the order passed by the Additional Collector. He, however, submitted that Shri Parmar is a scheduled caste coming from a very poor family and has no sufficient means. Further he was detained under COFEPOSA and also was prosecuted under Section 135 of the Customs Act and before the Magistrate he pleaded guilty and the learned Magistrate recorded a conviction and sentenced him to pay a fine of Rs. 5,000/-. With great difficulty Shri Parmar paid that penalty. Shri Kher pleaded that the above circumstances "may be taken into consideration and the penalty may be reduced from Rs. 15,000/- to Rs. 2,000/- which would, according to Shri Kher, meet the ends of justice.
9. Shri Pattekkar for the respondent Collector, however, urged that the order passed by the Additional Collector does not require any interference. He submitted that the evidence estabnlished that Parmar was employed in the shop of Shri Gidwani. The statement of Shri Bajaj established that Shri Parmar had been selling smuggled goods in the shop of Shri Gidwani. Since the shop belonged to Shri Gidwani it has to be assumed that the sale was for and on behalf of Shri Gidwani.
Further, immediately after his detention in the Airport, Shri Parmar made a statement implicating Shri Gidwani and that statement was voluntary and made in the presence of an independent witness. The subsequent retraction, if any, should be ignored. Shri Pattekar also drew my attention to the statement of Shri Parmar recorded on 10.10.83 wherein he reiterated that the statement of 22.9.1983 was voluntary.
Shri Pattekar strongly urged that the statement of Shri Parmar may be accepted and the order passed by the Additional Collector may be confirmed. It was also contended by Shri Pattekar that according to his own showing, Shri Parmar had no means. He could not have possessed the foreign currency equivalent fo Rs. 82,010/- and therefore, his statement that the said currency was given to him by Shri Gidwani may be accepted.
10. As regards Shri Parmar, Shri Pattekar submitted that admittedly he was attempting to smuggle out of India foreign currency equivalent to Rs. 82.010/-. In the circumstances, imposing of personal penalty of Rs. 15,000/- cannot be considered harsh or unreasonable. Shri Pattekar, further submitted that Shri Parmar had admitted that on 4 earlier occasions, he had been smuggling goods outside India and into India. If these circumstances are taken into consideration there is no scope to contend that the penalty of Rs. 15,000/- is excessive or unreasonable.
He, therefore, prayed that both the appeals may be rejected.
11. I have cafefully considered the submissions made by both sides, and perused the records of the case. The short question for consideration in both these appeals is : Whether the order passed by the Additional Collector requires to be interfered with? 12. The parties are not at issued as to the apprehension or Shri Parmar while he was attempting to smuggle out foreign currencies. The bone of contention is that the appellant Shri Gidwani is in no way concerned with the attempted smuggling of the foreign currency. As had been analysed by Shri Kher the evidence against Shri Gidwani consists of the following: 13. If the statement of Shri Parmar can be1 accepted, then no exception can be taken to the finding of the Additional Collector. The question for consideration is whether the statement of Shri Parmar could be relied upon to impose a personal penalty on Shri Gidwani. Though there is considerable force in the contention of Shri Pattekar that Parmar had made the statement immediately after he was stopped, there was no reason for him to falsely implicate Shri Gidwani, in my opinion it is hazardous to rely solely on the uncorroborated statement of Shri Parmar which he had subsequently retracted. Though I do not agree with the contention of Shri Kher that Parmar stands in the position of a co-accused it cannot be seriously disputed that he is an accomplice.
Though law does not prohibit relying on the accomplice's evidence prudence requires that accomplice's evidence shall not be accepted without corroboration. The corroboration contemplated could be either by way direct evidence or circumstantial.-There is no direct evidence other than the evidence of Parmar to implicate Shri Gidwani. The circumstantial evidence relied upon by the Additional Collector consists of the statement of Shri Bajaj and the absence of Shri Gidwani during the relevant time. I have carefully scanned the statement of Bajaj. All that Bajaj had stated was that Parmar was employed by Shri Gidwani in his shop and Parmar was bringing imported readymade goods from outside and selling them in the shop. The activities of Parmar made him to think that he may be doing some smuggling business. As contended by Shri Kher, even if the entire statement of Shri Parmar is accepted as true, it does not in any way connect Shri Gidwani with the alleged attempted smuggling of foreign currency.
14. Now coming to the abscondance, along with his reply to show cause notice Shri Gidwani had attached a medical certificate. This medical certificate disclosed that he was an inpatient in a nursing home at Pune between 18.9.83 to 25.9.83. The customs authorities for reasons best known to them did not think fit even to make casual enquiry as to whether Shri Gidwani was in the nursing home at Pune during the said period. Neither the Doctor who treated Shri Gidwani nor anybody from the nursing home was questioned or their statements recorded. The Additional Collector made no reference to this medical certificate and did not give any reason as to why the certificate should not be believed. When no investigation had been made and since the certificate had been sent along with the reply to show cause notice the same cannot be brushed aside. The medical certificate clearly explains the absence of Shri Gidwani. This certificate further falsifies the statement of Shri Parmar viz. that Gidwani had accompanied him upto Airport on 22.9.1983. It is significant to note that imme-diately after the search of the baggage of Shri Parmar and other formalities, the customs authorities proceeded to the business premises of Shri Gidwani. He was not found there. They proceeded to his residential premises, which was found locked. Thus, on 22.9.1983 Shri Gidwani was not available. When Gidwani sent a medical certificate along with his reply, the Customs was required to verify the correctnerss of the certificate. Further, according to Shri Parmar, on his earlier trips he had brought certain foreign goods from Singapore for Shri Gidwani. From the fourth trip he returned to India on 6.8.1983 and at that time also he had brought some foreign goods including ready made garments. On 22.9.1983 Shri Gidwani's shop was searched and according to Customs no incriminating article was found. If Parmar had brought goods for Shri Gidwani atleast a few items would have been found in the shop. Shri Parmar is admittedly a man without any means. The possibility of mentioning the name of Shri Gidwani who was his employer immediately when he was caught cannot be altogether ruled out. In any case, within two days after he made the statement he retracted that part of the statement by which he implicated Shri Gidwani. That retraction was made while he was in judicial custody. It is not the case of the department that either Gidwani or anybody on his behalf prevailed over Shri Parmar, to retract his statement which implicated Shri Gidwani.
15. As has been observed earlier, Shri Parmar's statement is in the nature of an accomplice's statement. Though there is no legal bar to rely upon the uncorroborated statement of an accomplice rule of prudence and caution require that the evidence of an accomplice must be corroborated. The reasons for seeking corroboration are (1) he being a participator of the crime is immoral, (2) He will have no regard for truth and (3) He may state falsely to shift the guilt. In the instant case Shri Parmar is a man of small means. He has nothing to lose., Admittedly, he had indulged in smuggling on four previous occasions. He is self condemned in that while in judicial custory he retracts his earlier statement implicating Shri Gidwani. His version that Shri Gidwani had accompanied him to Airport is falsified by the documentary evidence, viz. medical certificate, the authenticity of it remaines uncontroverted. In the circumstances, it is not only unsafe but hazardous to rely on the sole statement of Shri Parmar. The least Shri Gidwani is entitled in this case is benefit of doubt. I, therefore, allow appeal No. 741/84 and set aside the personal penalty imposed on him and direct refund of personal penalty if paid.
16. Now coming to appeal No. 775/84, the submission made by Shri Kher was that the appellant comes from a scheduled caste family and is very poor. He was detained under COFEPOSA. He was prosecuted. He was sentenced to a fine of Rs. 5,000/- and with great difficulty he paid the fine. These circumstances should be taken into consideration and penalty should be reduced from Rs.15,000/- to Rs. 2,000/-. Shri Pattekar's contentions were that foreign currency equivalent to Rs. 82,010/- was found in the possession of Shri Parmar. He had admitted that he had made four trips abroad and during these trips he had smuggled goods out of India and into India. It looks to me that Parmar had taken smuggling as a career. Whatever be his economic background, having regard to the activities in which he was indulging no leniency is called for. The Additional Collector appeared to have imposed a penalty of Rs. 15,000/- because of his finding that the currency belonged to Shri Gidwani. Shri Parmar had denied in his subsequent statement that the currency belonged to Shri Gidwani. Shri Parmar did not state to whom the currency belonged.
17. In the circumstances and for the reasons stated earlier, I see no merits in this appeal. Accordingly I reject the same.