1. This is an appeal against the order of the Additional Collector of Customs, Trichy referred to supra absolutely confiscating a sum of Rs. 31,000/-under Section 121 of the Customs Act, 1962. On 24-12-1981, on the basis of information, the Superintendent of Central Excise, Customs Preven- tive, Nagapattinam, searched the house of one Subbiah at Nagore and reco- vered certain goods of foreign origin and during investigation of the same the authorities searched the house of one Mohamed Ibrahim at Nagore on 28-12-1981 and recovered certain goods of foreign origin and sale proceeds of contraband goods. It is in the course of a follow up action and further investigation, the authorities seized a sum of Rs. 31,000/- from the appellant on 29-12-1981 at about 12 noon as representing the sale proceeds of contra- band goods, under mahazar attested by witnesses, besides the appellant him- self. The appellant was examined by the authorities on 29-12-1981 itself when he gave a statement that the sum of Rs. 31,000/- under seizure was entrusted to him by one Kattai Mani alias Subramani of Nagapattinam and one Kattai Maraicar alias Najumudeen of Nagapattinam and he had no connection with the said amount. It is in these circumstances, after further investigation, pro- ceedings were instituted against the appellant which ultimately resulted in the impugned order now appealed against.
2. The learned counsel for the appellant submitted that Section 121 of the Act will come into operation only in a situation where smuggled goods are sold by a person with knowledge and then only the sale proceeds will be liable for confiscation. Since the appellant did not admittedly sell any contraband goods, the sale proceeds are not liable for confiscation under law.
3. It was urged on behalf of the appellant that the inculpatory statement recorded from the appellant on 29-12-1981 has been retracted on 22-1-1982 and therefore, the adjudicating authority is in error to have placed reliance on the same. The learned counsel further submitted that a sum of about Rs. 30,000/- was sent by the appellant to Gibs Traders towards the purchase of kailis as evidenced by bill books and so the seizure of the money is not legally tenable. The learned counsel urged that the show cause notice is defective and so the order of adjudication is bad in law. It was further contended that the attesting witness to the mahazar, S.N. Malim has admitted in cross-examination that the appellant was detained in the Custom House at Nagapattinam even earlier than the alleged seizure of currency and was subsequently let off to mobilise the said amount and as such no reliance can be placed on the mahazar and the statement of the appellant. Finally the learned counsel submitted that he was under a misapprehension that the adjudicating authority was to decide the case in his favour and therefore, waived the right of cross-examination of other -witnesses he had sought for and also did not fully crossexamine witness Malim referred to supra and prayed in the circumstances for remand of the appeal for readjudication.
4. The learned Senior Departmental Representative submitted that the appellant's statement recorded by the authorities on 29-12-1981 is inculpatory in nature and has not been retracted within a reasonable time. Further, the appellant has not offered any explanation for the belated retraction. He further urged that the statement of the appellants is also corroborated by the statement of R. Subramani, S/o.
Ramasamy Thevar, who has clearly admitted that he handed over a sum of Rs. 15,000/- out of the seized amount to the ; ppellant. The learned SDR also contended that the appellant having chosen to waive the cross examination of all the witnesses and having availed himself of the opportunity of crossexamining witness Malim cannot plead before a court of law that he was under a misapprehension about the mind of the adjudicating authority. He also submitted that even in the cross examination of witness Malim no questions had been asked about the alleged involuntary nature of the statement recorded from the appellant.
5. I have carefully considered the submissions of the parties herein.
With reference to the applicability of Section 121 of the Act I am of the view that the sale proceeds of smuggled goods are liable for confiscation under Section 121 of the Act. In the instant case, in respect of the amount under seizure, the appellant himself unambiguously and categorically admitted in his statement given before the authorities on 29-12-1981 that the amount represented the sale proceeds of smuggled goods entrusted to him by some persons referred to supra and that he himself had no connection whatever with the said amount. It is therefore, obvious that the appellant had full knowledge that the amount under seizure represented the sale proceeds of contraband goods. In such circumstances, I do not find any force in the submission of the learned counsel for the appellant that unless the appellant himself had effected the sales of contraband goods and the money was seized from his person, the same would not be liable for confiscation. The contention of the learned counsel that in view of the subsequent retraction on 22-1-1982, the inculpatory statement recorded from the appellant on 29-12-1981 would not have evidentiary value is opposed to judicial pronouncements of various courts. If really, as is now contended, the statement had been coerced or extorted from and out of the appellant it does not stand to reason as to why the appellant, as a normal human being, did not react to such a situation and resile and retract from the same immediately thereafter. It is relevant to note in this context that the inculpatory statement of the appellant is admittedly in the hand of the appellant himself. The appellant has also, as rightly pointed out by the learned SDR, has not offered any satisfactory acceptable explanation for the belated retraction. In the circumstances, I am inclined to hold that the statement recorded from the appellant on 29-12-1981 is true and voluntary and is entitled to acceptance. Apart from the statement of the appellant there is also the statement of R. Subramani, who has also clearly implicated the appellant in his statement. It is relevant to point out at this juncture that the said Subramani has not retracted the statement he has given implicating himself and the appellant. The said Subramani was also not cross examined by the appellant and the appellant himself was waived the opportunity to crossexamine witness Subramani. In this circumstance, the learned SDR is right in contending that the statement of Subramani would afford sufficient corroboration and lend considerable credence to the voluntary nature of the statement recorded from the appellant by the authorities on 29-12-1981. The submission of the learned counsel that the sum of Rs. 31,000/ represented the sale proceeds of kailies effected by the appellant himself and out of the same, a sum of Rs. 30,000/ was remitted to Gibs Traders, Madras, from whom the appellant has been purchasing kailies does not have any bearing on or relevance to the sum of Rs. 31,000/ under seizure. If really the appellant had remitted Rs. 30,000/ representing the sale proceeds of his own kailies to Gibs Traders, Madras, it passes one's comprehension as to how he was again able to mobilise a sum of Rs. under seizure and hand it over to the authorities as evidenced by the mahazar. To a query from the Bench in this regard, the learned counsel for the appellant submitted that the appellant mobilised the sum of Rs. 31,000/ by borrowing it from various persons. Unfortunately, the appellant has not substantiated the same and proved by giving the names of persons from whom he borrowed the money and by examining them as his witnesses. Excepting the mere ipse dixit of the appellant, he has not been able to substantiate it by any evidence, much less probabilise it and therefore, I am not inclined to attach any importance or give credence to this plea of the appellant.
6. Regarding the plea of the appellant that the show cause notice is defective, I am afraid the same is misconceived in law. I perused the entire show cause notice and it has clearly set out all the facts and ingredients relevant to the case against the appellant and called upon the appellant to show cause against the same. As I have already held, that before sale proceeds of contraband goods become liable for confiscation, it is neither necessary nor a condition precedent that the person from whose possession the sale proceeds of smuggled goods are recovered should be the person who must actully have effected the sales. Such a construction is opposed to the plain tenor and wording of Section 121 of the Act. The appellant, as adverted to earlier, has given an inculpatory statement admitting that the currency under seizure represented the sale proceeds of smuggled goods and that he has no connection whatever with the same. This statement was not immediately retracted and no explanation was given by him for belated retraction. This statement of the appellant has also been corroborated to a great extent by the statement of Subramani referred to supra.
7. Regarding the plea of the appellant for remitting the matter for readjudication, I do not find any force in the submission of the learned counsel because it is not open to the appellant to take advantage of his own indiscretion or lapses in not substantiating the plea he has put forward and on that basis seek a remand at this distance of time.
8. In these circumstances, on consideration of all the materials available on record, I am inclined to hold that the sum of Rs. 31,000/ recovered from the possession of the appellant represented the sale proceeds of contraband goods within the meaning of Section 121 of the Customs Act and as such the money is liable for confiscation.
Accordingly, I uphold the order appealed against as clearly sustainable in law and dismiss the appeal.