1. This is an appeal against the order of the Additional Collector of Customs & Central Excise, Guntur, referred to supra, imposing a penalty of Rs. 10,000/- on the appellant under Sec.ll2(b) of the Customs Act, 1962.
2. On 26-11-83 at about 1.30 A.M., the appellant who was standing in Vijayawada railway platform was apprehended by the Railway police and a search of the appellant resulted in the recovery of 5 slabs of foreign gold in the form of biscuits, weighing 583 gms. Since the appellant was not able to satisfactorily account for the possession of the same, the same was seized by the Railway police under mahazar attested by withnesses Arjun Rao and S.A. Rahim, railway officials. The appellant himself was produced before the Judicial Magistrate for remand and was later released on bail by court. Intimation of seizure having been sent to the Central Excise authorities, the Central Excise authorities took possession of the gold under seizure from court for further investigation. Investigation by the authorities under the provisions of the Customs Act revealed that the appellant was concerned with the foreign gold under seizure with the result proceedings were instituted against him as per law which ultimately resulted in the impugned order now appealed against.
3. The learned Counsel for the appellant submitted that the gold under seizure was not recovered from the possession of the appellant at all by the railway police and the entire case by the railway police as well as by the Customs authorities has been foisted" on the appellant. It was urged that the mahazar is not entitled to weight or consideration under law. It was further contended that the mahazar witnesses Arjun Rao and him though railway officials, are stock department witnesses and their evidence is unreliable. It was also contended that the gold not having been seized by the Customs authorities and presumption under Section 123 of the Customs Act not being applicable, the onus lies heavily on the Department which the Department has not discharged and so the impugned order is liable to be set aside.
4. The learned SDR submitted that the gold under seizure contains foreign marks and is of 24 ct. purity, and even though the appellant challenges the fact of recovery from his person or possession, he does not challenge the foreign nature of the gold under seizure. The evidence of the railway officials, Arjun Rao and Rahim who have been examined during adjudication before the Additional Collector is entitled to weight and acceptance and the same would establish recovery of the gold under seizure from the person of the appellant. It was further urged that the appellant prefalicated and did not give his correct name before the authorities and this circumstance, coupled with the absence of any protest on the part of the appellant with reference to the recovery of the gold under seizure from his person would shift the onus on to the appellant. Finally, it was urged that the power to impose penalty under Section 112 of the Act is not in any way conditioned by or subject to confiscation and if the gold under seizure is confiscable and if the appellant is concerned with the contraband gold, penalty can be imposed on him under Section 112 of the Customs Act.
5. I have carefully considered the submissions of the parties herein.
This is a case where, according to the Department, the gold under seizure was recovered from the person of the appellant by the railway police. This fact is substantiated by the contemporaneous document viz., mahazar prepared immediately on 25/26-11-83 at about 0130 hrs.
M/s. Arjun Rao and Rahim who are travelling ticket examiners of the Railway department have attested the mahazar and have also given evidence before the adjudicating authority during adjudication proceedings clearly implicating the appellant as the person from whose possession the gold under seizure was recovered. It is relevant to note in this context that even though the appellant would vehemently contend that the gold under seizure was not recovered from his person or possession and the entire case has been foisted on him by the railway police and the Customs authorities, he did not make any grievance of the same when he was produced for remand before the Judicial Magistrate by the Railway police. The fact remains that even after the appellant was released on bail he did not protest against the allegation of seizure of foreign marked gold from his person to any authorities. Be that as it may, the learned SDR drew my attention to the fact that despite the appellant having been asked by the Supdt. of Central Excise, on several occasions such as on 8-12-83 and 17-12-83 to give a statement regarding the truth, he would not give any statement at all except that on 8-12-83 the appellant in a letter addressed to the Superintendent stated that his correct name was "Sri Varre Sivaprasad Babu" and that he was not in a position to make or give statement in this case. If really a false mahazar is prepared against the appellant and the gold of foreign origin was not recovered from the person of the appellant,. it does not stand to reason as to why the appellant did not choose to protest against the same and state it in spite of the fact that several opportunities were given to him. The mahazar evidencing recovery of foreign marked gold from the person of the appellant, the production of the same before the Judicial Magistrate, evidence of the railway officials M/s. Arjun Rao and Rahim, implicating the appellant before the adjudicating authority as one from whose person the gold was seized coupled with the conduct of the appellant in not protesting against the alleged seizure of gold from his person, are factors on the basis of which the Department has discharged the onus cast on it under law and the burden in such a situation has shifted on to the appellant. It is settled proposition of law that even in cases where the presumption under Section 123 of the Customs Act is not applicable, the Department can discharge its onus by relying on a number of circumstances and by invoking to its aid the presumptions incorporated in Sections 114 and 106 of the Evidence Act. I therefore, hold that in the light of the circumstances stated above the burden stands shifted to the appellant. Excepting the mere ipse dixit of the appellant, he has not been able to substantiate his plea that no recovery was made from his person and the entire case was foisted on him.
6. During the course of arguments, the learned Counsel for the appellant submitted that adequate opportunity to cross-examine the mahazar witnesses was not given to him. On a scrutiny of the records, I find that the appellant has availed himself of an opportunity to cross-examine the mahazar witnesses Arjun Rao and Rahim and did cross-examine them in extenso and therefore, the mere fact that the appellant was not permitted to put certain questions in cross-examination considered irrelevant by the authorities in the context would not cause any prejudice to the appellant. The learned Counsel relied upon the ruling of the Delhi High Court reported in 1978 Cencus 219D in the case of Prem Raj Madan Lal Aboti and Anr. v.Collector of Central Excise, Poona and contended that imposition of the penalty on the appellant is not legally sustainable since there was "no seizure with a suspecting mind by the officers of the Customs under the Act". I am afraid the ratio decidendi in the ruling cited above has no application to the facts of this case and indeed, in the said ruling itself the proceedings instituted and the penalty imposed under Section 112 of the Customs Act has been upheld. The learned Counsel also relied upon the ruling of the North Regional Bench of the Tribunal reported in 1983 E.L.T. 2086 (CEGAT) in the case of Ranjit Ram v. Collector of Customs, Chandigarh and contended that Section 123 of the Customs Act being inapplicable, the contents of the mahazar drawn by the railway police cannot be construed as substantive evidence. This ruling also is not applicable to the facts of the case because in the present case, before the adjudicating authority two railway officials have given evidence implicating the appellant and have also been extensively cross-examined by the appellant. Apart from the evidence of the railway officials, the contemporaneous document mahazar has also been rightly taken into consideration by the adjudicating authority in support of the case of the Department in proof of recovery of gold. I should like to make it clear that I have not adverted to the contents of the mahazar with the reference to the inculpatory or confessional parts therein attributed to the appellant in reaching a conclusion I have reached. It is settled law that mahazar being a contemporaneous document for seizure, is certainly entitled to be taken into consideration even in criminal cases to prove recovery of incriminating articles and a fortiori in proceedings before quasi-judicial authorities. The learned Counsel also placed reliance on the ruling of the Gujarat High Court reported in 1985 Criminal Law Journal 324 in the case of Union of India v. Abdul Khader and Anr. That was a case in respect of a criminal prosecution under Section 135 of the Customs Act where the Court went into the question with reference to the applicability of the presumption under Section 123 of the Act. Since Section 123 of the Act has not been invoked by the adjudicating authority in the present case, in my opinion, the ruling has no bearing on the issues arising here for consideration. Finally the learned Counsel drew my attention to a ruling of the Central Board of Excise and Customs reported in 1981 ECR 645 D (CBEC) in the case of Pravinchandra Amlakah Waghani and Ors. v. Collector of Central Excise, Ahmedabad and contended that the Department must prove the case and the mere fact that the case of the Department may be true could not be sufficient. It should be noted that proof beyond "reasonable doubt" is the measuring yardstick in a criminal prosecution before a criminal court whereas "preponderance of probabilities" would be the criterion before adjudicating authorities. Therefore, the standard of proof cast on a prosecuting agency before a criminal court in a criminal prosecution cannot be contended to be a guiding factor in adjudication proceedings before quasi-judicial authorities. I therefore hold that the ratio in the Board's ruling referred to supra is not applicable to the facts of this case.
7. Taking into consideration the facts and circumstances of this case I find that the impugned order appealed against is clearly sustainable in law. Having regard to the fact that the value of the gold under seizure is very substantial I feel that imposition of a penalty of Rs. 10,000/- on the appellant cannot be said to be either harsh or excessive warranting any further reduction. I therefore dismiss the appeal as devoid of merits.