1. This appeal arises out of the order dated 5-8-78 passed by the Appellate Collector of Customs, Calcutta in No. 1794/1978.
2. The brief facts are, on the basis of intelligence, the Customs officers at Balurghat on 8-11-76 stopped the appellant at Baniadpur while he was getting down from a bus. On interrogation, the appellant admitted that he was carrying some silver. Therefore, the Customs Officer took him to Customs Office at Balurghat and in the presence of independent witnesses searched his person and recovered seven silver takas weighing 8.045 kgs which were found concealed in the pouches of a specially made jacket which the appellant was wearing inside his shirt.
Having regard to the information the Customs Officer had that there was smuggling of silver into India from Bangladesh they demanded the appellant to produce evidence to show that the silver in question has been lieitly imported into India. The appellant, however, failed to produce any evidence. Further, in his statement before the Customs Officer, the appellant was alleged to have stated that the silver lumps were sold to him by an unknown person and he had not paid the price and that he was taking the silver to Calcutta for sale after which he intended to pay the seller. After complying with the provisions of the Customs Act, the Deputy Collector held that the silver had been illegally imported in contravemtioa of Section 3(1) of the Imports & Exports (Control) Act and Section 11 of the Customs Act and therefore, confiscated the silver, but however, permitted the appellant to redeem the same on payment of fine of Rs. 7,000/-. He also imposed a penalty of Rs. 1,000/- under Section 112 of the Customs Act.
3. Feeling aggrieved by the order of the Deputy Collector the appellant filed an appeal before the Appellate Collector of Customs unsuccessfully. Thereafter, the appellant preferred a revision before the Government of India and this revision stood statutorily transferred to this Tribunal.
4. In the revision petition, the appellant inter alia stated that he is an income-tax assessee. During the relevant period, his mother was suffering from mental diseases. He had spent considerable amount for the treatment of his mother's illness and in that connection, he sold all the gold ornaments. It became necessary to sell silver ornaments for that purpose. He got melted the ornaments into small lumps which is easier to carry and put them inside small pockets for safe transit to Calcutta. He further stated that the Customs Officer who interrogated him was a local person known to his family. Therefore, he admitted before him that he was carrying silver and explained to him the purpose for which he was carrying. He further stated that the Customs Officer did not record his statement but forced him to go another 32 miles and none was present when his person was searched and a statement was recorded falsely under duress. He then stated that on 11-11-1976 he proceeded to the Court of Executive Magistrate, Balurghat to make an affidavit and a complaint against the Customs Officer for obtaining a false statement under coercion. He got typed an affidavit on a stamp paper, but the Magistrate refused to sign the affidavit as it was in the nature of a complaint.
5. During the hearing for the appellants Shri S.N. Mukherjee urged the fallowing grounds: (i) The statement recorded by the Customs Officer is not a voluntary statement and it was obtained under coercion and therefore, he had gone to the Executive Magistrate to file a complaint and in that connection, he got prepared an affidavit dated 11-11-1976.
(ii) The trade opinion is inconclusive, vague and none of the silversmiths substantiated that there was any special mark or sign in any of the silver lumps to show that it is of foreign origin.
(iii) The opinion of the silversmiths is motivated and false and the appellant ought to have been given an opportunity to cross-examine those persons and since such an opportunity has not been given, there is denial of natural justice.
(iv) Silver being not a notified goods, the burden of proof is on the Customs which has not been discharged. The Deputy Collector as well as the Appellate Collector have based their decisions on imagination and assumption. Suspicion is no substitute for proof and in the absence of any proof that the silver was brought from Bangladesh, the Orders are liable to be set aside.
6. Shri A.K. Chatterjee, J.D.R. contended that at the earliest point of time, namely, at the time of search of the person of the appellant, he made a statement wherein he has admitted that the silver lumps were sold to him by an unknown person and he was yet to pay the price and he was taking the same to Calcutta for sale and thereafter, intends to pay back the seller. The Deputy Collector as well as the Appellate Collector have disbelieved this version and the version given is unbelievable. He further urged that the appellant does not give any explanation as to how he came into possession of such large quantity of silver. The contention of the appellant that he is not required to disclose anything, is incorrect and Section 106 of the Evidence Act is attracted. It is then urged by Shri Chatterjee that the possession of the appellant cannot be innocent because he had hidden the silver lumps in a jacket which is specially made for hiding the lumps and he was wearing this jacket inside his shirt. Lastly, he contended that the three silversmiths who have examined the silver lumps have opined that no villagers had ever sold silver in such form and therefore, it is reasonable to infer that the silver lumps found in the possession of the appellant, were smuggled into India and that there is no burden cast on the department to establish as to who smuggled the silver or when the silver was smuggled. He, therefore, contended that the appeal may be dismissed.
7. We have carefully gone through the records of the case the considered the arguments advanced for both sides.
8. The short point for consideration is whether the order passed by the Deputy Collector and confirmed by the Appellate Collector requires to the interfered with.
9. Now there is no dispute that the appellant was intercepted at Baniadpur while he was getting down from a Bus. He admitted having been in possession of silver lumps. The silver lumps were found concelaed in the pouches of a specially made jacket which the appellant was wearing inside the outer garment. The Customs authorities have recorded the statement of the appellant in the presence of independent witnesses. In that statement, the appellant gave an incredible story. The silver is a commodity the import of which has been restricted ever since the year 1948.
10. Silver not being a notified commodity, the burden of establishing that the silver found in the possession of the appellant was illegally imported into the country lies on the Department. There is no direct evidence to establish that the silver in question has been illegally imported into the country. The Department relied on the circumstantial evidence. They are, the Customs authorities had reliable information that silver was being smuggled into India from Bangladesh. The appellant is a resident of a border village. On the basis of the intelligence the appellant was intercepted while he was getting down from a bus at Baniadpur. His person was searched at Balughat. He was found wearing a vest or specially made jacket which contained pouches and in these pouches, silver lumps were found. The appellant in his statement stated that he purchased the silver lumps from an Unknown person. He had not paid him the price and he was taking the silver to Calcutta for sale and thereafter, he intended to pay the seller. The appellant was given one more opportunity to disclose the source at the stage of appeal and the appellant took a contention that under law, he was not required to disclose the name of the person or the source from which he acquired this silver. The story given by the appellant at the time of seizure, is an incredible story. If the above facts and circumstances are satisfactorily established then the inference drawn by the Deputy Collector and the Appellate Collector that the silver in question had been illegally imported, cannot be held to be unreasonable or unwarranted.
11. With this, we shall now come to the contention urged by the learned Advocate Shri S.N. Mukherjee for the appellant before us. His first contention is that the so-called statement made by the appellant before the Customs authorities at Balurghat is not his statement and it was falsely recorded and under coercion. The appellant in his revision petition and the learned advocate at the time of argument, vehemently urged that the mother of the appellant has been suffering from a mental disease for a considerable time. To meet the medical expenses, the family has to sell its gold ornaments and after the sale of the gold ornaments, it has to sell the silver ornaments. For that reason, the appellant got melted the silver ornaments and made them into convenient pieces and kept in the jacket for safety purposes and was on his way to Calcutta for sale. If what is contended now by the appellant is true, nothing prevented him from making such a statement before the Customs Officer who recorded his statement. Before going into the contention of the appellant (hat the statement recorded by the Customs Officer is false and obtained under coercion, we shall refer to the contention advanced by the learned advocate who appeared before the Appellate Collector. According to the order of the learned Appellate Collector, the learned Advocate argued before him that the appellant had purchased the goods from some persons whom he knew, but he did not disclose the names, he was not required to do so. But while recording, the Customs Officer has recorded as if the appellant had stated that he had purchased from an unknown person. Thus, the story even at the appellate stage was that the appellant had purchased silver from known persons and not that the silver belongs to him and the lumps were prepared by melting silver ornaments of the family. The mother's illness was not at. all urged as a ground before the Appellate Collector. Therefore, we could safely reject the story now put forward. Coming to the duress, the appellant sought to rely on an affidavit which he intended to file before the Executive Magistrate. This document cannot be considered as an affidavit because it was not sworn to before any authority who is competent to attest. The so-called affidavit is dated 11-11-1976. The seizure was on 8-11-1976. There was enough time for the appellant to concoct things. If the theory of coercion, put forward by the appellant is true, nothing prevented the appellant from lodging a complaint either before the Magistrate or before a Superior officer of the Customs Department. It is intetesting to note that in this affidavit, the appellant has stated that the seized silver thakas are personal property and he was taking them to Calcutta for selling. Now if this affidavit has been filed on 11-11-76, one cannot comprehend how the appellant's advocate could argue before the Appellate Collector that the appellant purchased the silver from some known person. Apparently taking advantage of some unused stamp paper, the appellant has got this document prepared at a very late stage. The story that the Magistrate refused to sign is unbelievable. The so-called affidavit is not at. all presented before the Magistrate. Considering all aspects of the case, we are unable to accept the contention of the appellant that the statement recorded by the Customs Officer was either obtained by coercion or it was falsely recorded.
12. The contention of the learned advocate that the Deputy Collector and the Appellate Collector have based their conclusion on imagination and assumption and that there was no proof that the silver in question was illicitly imported into India, it is true that there was no direct evidence of import of the silver in question. As has been stated eariler, there is no burden cast on the department to establish as to when the silver was imported or who imported it. The Department has satisfactorily established several circumstances from which inference should be drawn that the silver in question has been illegally imported into the country.
13. Now coming to the other contention that the opinion of the silversmiths did not establish that the silver is of foreign origin and that the appellant had no opportunity to cross-examine those silversmiths, suffice it to say that the appellant did not contend either before the Dy. Collector or before the Appellate Collector that he should be given an opportunity to cross-examine those silversmiths.
Therefore, this contention is an afterthought and cannot be accepted.
It is true that the opinion of the silversmiths who examined the seized silver, did not conclusively establish that the silver in question is of foreign origin. Their opinion is that the villagers normally bring broken ornaments or ornaments of silver and nobody had brought silver in the form in which the appellant was carrying. Even if we are to hold that the opinion of the silversmiths did not establish that the silver seized is of foreign origin, there is, in our opinion, enough circumstances from which it is reasonable to infer that the silver which the appellant was carrying had been illegally imported into the country after the imposition of restriction under the Import & Export Control Act. The tell-tale circumstances are the apprehension of the appellant on the intelligence that the silver was being smuggled from Bangladesh. The appellant had concealed silver lumps in a jacket specially made. The accused gave a story which is wholly incredible. No reasonable and prudent man can believe the story that the accused purchased silver from an unknown person and he was taking to Calcutta for sale and thereafter, he intended to pay back the purchase price to that unknown person. The accused gave different version at different stages. Before the Deputy Collector, his contention was that under law he was not obliged to make any statement as to the possession of silver. Before the Appellate Collector, he contended that he had purchased the silver from a person known to him, before us, he took a contention that the silver found in his possession were prepared by melting family ornaments. Making of false statement is itself a circumstance against the appellant. Though the burden of proving that the silver had been illegally imported was initially on the department, the circumstances proved in this case in our opinion, sufficiently discharged that initial burden. When the department has satisfactorily discharged the initial burden rested on it, the burden shifts to the appellant to establish that his possession was innocent. The appellant, in our opinion, has failed to discharge that burden. The totality of facts proved in this case, is enough to raise the presumption under Section 114 of the Evidence Act and that the silver in question had been illegally imported into the country. The Dy. Collector and the Appellate Collector in our opinion, did not proceed on suspicion or surmises. There were several circumstances from which inferences could very well be made that the silver had been imported after the law passed in 1948 restricting its entry.
14. After careful consideration of all the facts and circumstances, we hold that there is no merit in this appeal. Accordingly, we dismiss the same.