1. These are two Stay Petitions filed by the applicants for the stay of the operation of the order passed by the learned Collector of Customs (Preventive), West Bengal in Order No. 65/Cus./WB/87 dated 6.11.1987, and to waive the pre-deposit of penalty of Rs. 2,00,000/-(Rupees two lakhs) each imposed on each of these applicants. Since these two applications arise out of the same order, we intend to dispose of both the applications by this common order.
2. The brief facts are that on 12.7.1986 the officers of Customs (Preventive) Unit, West Bengal, Calcutta intercepted Truck No. DEL 3124 parked in front of Petrol Pump near Mogra entry check post and found three persons including driver and it was loaded with machineries. When the machineries were broken open large quantities of hashish was recovered, packed in polythene bags, weighing 743 kgs valued at Rs. 7,43,00,000/-. These along with Indian currency were seized on a reasonable belief that the hashish under seizure were being illegally transported.
3. The investigation proceeded. Shri Joginder Singh, driver, gave a statement that applicant Harnara Singh is the owner of the truck and he is paid Rs. 660/- per month and he was| diving the truck to Calcutta at the instructions of Harnam Singh. He also stated that the machines were loaded on 6.7.1986 during 8 P.M. to 1 A.M. at Mehrauli. He also stated that Harnam Singh carries on transport business in the name of "The Nice Goods Carrier" at Azad Market, Delhi, and he has six trucks and his eldest son's name is Satnam Singh Shri Shibraj Singh, another occupant of the truck also corroborated Joginder Singh's statement by stating that Harnam Singh is the owner of the vehicle and they drove the vehicle in question to Calcutta at his instructions. He also corroborated the fact of loading of hashish and the interception by customs officers. Shri Shibraj Singh also corroborated the above statement and stated that at the time of loading Gurdeep Singh and Nirmal were present at Mehrauli. He also corroborated the statement of Joginder Singh that Harnam Singh paid Rs. 10,000/- to Joginder Singh to meet the expenditure of the lorry during driving. Ranjit Singh the cleaner also corroborated the above statements. These three persons along with two others were arrested and were remanded and further investigation was done.
4. On 13.7.1986 a farmhouse of Gadaipur was raided and 1324 kgs of hashish was recovered from there along with some documents. One blank letterhead of M/s. Virmani & Co.' was also seized. The letterhead contained address as 'Virmani & Co. Book Makers, Delhi Race Club, New Delhi'. But no such firm was detected by the officers. Another firm viz. Radhey & Co.' was, however, was found in that address, which was run by one Mahesh Mehra, Brother-in-law of applicant Kripal Mohan Virmani. MaheshMehra gave a statement that he had married Kripal Mohan Virmani's sister and that Kripal Mohan Virmani purchased a plot at D-1/56, Vasant Vihar, New Delhi in 1980 and constructed a house and shifted there and he himself has also shifted there. Then this building was rented out in 1986 to S. P. Rao who in turn rented it out to Russian Embassy on a monthly rent of Rs. 25,000/-.
5. It was also found that in the farmhouse from where hashish was recovered there were many household articles and Mahesh Mehra stated that identified those articles as belonging to Kripal Mohan Virmani. He also Kripal Mohan Virmani introduced him to Harnam Singh.
6. One Gopal Singh, peon of the transport company "The Nice Goods Carrier" stated that Harnam Singh is its owner. He also stated that he used to see Gurdeep Singh and Nirmal visiting the transport company and having private discussions with Harnam Singh.
7. Kamal Kishore, Manager of the Transport company, stated that Harnam Singh is the owner of the company and he is well acquainted with Shri Virmani. He also stated that harnam Singh and Virmani with the help of Gurdeep and Nirmal were dealing in Hashish. He also stated that through Gurdeep Singh he came to know that the machines which were in truck contained 'Charas' concealed in the machinery parts and in the second consignment to Calcutta hashish was concealed in it. The two daughters of Kripal Mohan Virmani, Sapna Virmani and Aparna Virmani on 31.7.1986 identified the furniture recovered and seized from the farmhouse (from where hashish were recovered) as being the ones in their possession while they were residing at D-l/56, Vasant Vihar, New Delhi.
8. On search of the houses of Harnam Singh and Kripal Mohan Virmani no incriminating substances were recovered. On search of S.P. Rao alias Nirmal, documents were recovered where telephone nos. of Harnam Singh were written in the personal Memorandum of a diary.
9. Later, Kripal Mohan Virmani was apprehended on 28.8.1986 and in his statement under Section 108 of the Customs Act he stated Harnam Singh introduced hip to one Surinder Malhotra informing that he would help them in smuggling of hashish. He also stated that Harnam Singh has large contacts outside India with respect to smuggling of hashish and he also disclosed various particulars including the price of hashish as disclosed by Harnam Singh. He also stated that S.P. Rao also was involved in this and had openeda Bank account on his behalf. He also stated that the profits of the hashish smuggling is distributed between himself and S. P. Rao and Harnam Singh in particular proportions. He also stated that hashish was stored in the farmhouse by all of them far export by concealment in machinery parts. He also stated that hashish was stored in the farmhouse in a concealed manner and furnished various details of concealment there. He also stated that on 16th July, 1986 on coming to know of the seizure of hashish in question, he himself, S.P.Rao and Harnam Singh were absconding.
10. The hashish seized at Calcutta and farmhouse were sent for chemical examination and were found to be dangerous drugs. Show cause notices were issued and after adjudication the impugned order was passed and appeals are filed by these two applicants along with the present two stay petitions.
11. The learned Advocate appearing for Harnam Singh contended that the name Harnam Singh is not connected with the hashish seized at Calcutta or at a farmhouse in Delhi. He contended that the statements of the witnesses and Kripal Mohan Virmani will not implicate the applicant in any way. He also contended that nothing incriminating was recovered from the house of Harnam Singh and he is not connected with the offence. It was also his contention that there is no acceptable evidence against Harnam Singh and there is also no discussion in this regard in the Collector's order. He drew our attention to several portions of the order-in-original mentioned in pages 32 to 34 and page 44 to substantiate his contentions. It was contended that according to the statements of the Calcutta Clearing Agent, no connection of Harnam Singh has been established and statements of Joginder Singh, Shibrai Singh and Ranjit Singh are obtained under duress. It was also contended that Joginder Singh only implicated S. P. Rao as the person who directed him to go to Calcutta. It was also stated that in the first statement, Joginder Singh did not involve Harnam Singh and much later he was forced to give a statement against Harnam Singh, He also contended that though Kamal Kumar was forced to implicate Harnam Singh the letter sent by him later from the Jail retracting his earlier statement, is a significant one. It is also contended that the statement of Shri Virmani cannot be relied upon as he was coerced and was assaulted and he had injuries on his body which was established by his medical examination. It is also stated that the statement of Shri Virmani's daughters are irrelevant and they are of no significance. It is also contended that enquries with Revenue authorities only revealed that the farmhouse at Mehrauli was registered in the name of ft. P. Rao and there was nothing against Harnam Singh. He also contended that Harnam Singh was not given opportunity to cross-examine the witnesses and there was violation of principles of natural justice. He also contended that the reasoning of the learned Collector that Harnam Singh ordered Joginder Singh to go Mehrauli and it was there the goods were loaded by Nirmal and Gurdeep Singh and hence Harnam Singh is liable, is not a sound one. He also pointed out page 53 of the order and stated that the learned Collector had refused cross-examination of the witnesses as sought by Harnam Singh and stated that the whole order is vitiated. He also drew our attention to the statements of Sri Subhas Narang and Sri Kamal Kishore, as discussed in Pages 57 to 61 of the order of the learned Collector and contended that there is no implication of Harnam Singh in this case.
12. He further contended that the financial position of Harnam Singh is in very bad share and that he has only one house which he has mortgaged to Punjab National Bank and that he has filed an affidavit on behalf of Harnarn Singh which is not contradicted by the department and therefore his affidavit, which is uncontroverted, is to be accepted.
13. The learned JDR Shri Bhowmik appearing for the department, contended that the statements of Joginder Singh, driver, Gopal Singh, Peon, Shibraj Singh and Ranjit Singh, and Kripal Mohan Virmani, are all to be taken together and if they are taken together the guilt of Harnam Singh is established. It was contended that in such cases of smuggling the department is not expected to prove their case with any mathematical precision. It was contended that the evidence in such case of anti-smuggling does not insist on absolute proof for the simple reason that perfect proof in this imperfect word is seldom found. It is his contention that if after considering the matters the authorities have materials to hold that there is evidence which it believes to exist or if it considers its existence so probable that a prudent man ought under the circumstances believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the case can act upon it then the case is said to be proved. It was also his contention that in departmental proceedings, strict proof beyond reasonable doubt cannot be insisted and the probabilities of the case emerging out from various circumstances and the statements are to be taken together and in this case the cumulative effect of all these statements are taken by the learned adjudicating authority and that has established the involvement of this applicant and hence he contended that there is no prima facie case for the applicant.
14. As regards the refusal of permission for cross-examination of the witnesses, it was his contention that all the evidence available against the applicant were made known to the applicant in the show cause notice and hence in matters like this affecting the social security principles of natural justice does not require that the persons who have given information should be produced for cross-examination with respect to the statements rendered by them and he pointed out the decisions relied on by the learned Collector in this behalf, which are , With respect to the financial hardship, it was his contention that Harnam Singh has a house and that he has a farmhouse and several lorries and he is running a transport business. It was his contention that people engaged in such activities cannot be expected to keep all properties directly in their name and that the several circumstances appearing in this case should be taken into consideration. It was his contention that the penal provisions are enacted to suppress the art of smuggling of hashish and other dangerous drugs which is an anti-social activity adversely affecting public revenues and the health of the citizens and strict and narrow length of proof beyond reasonable doubt cannot be imported in these proceedings which will affect the efficacy of the authorities in controlling such illegal activities.
15. In reply, the learned Advocate contended that there is no evidence at all to connect Harnam Singh and refusal to give permission to cross-examination the witnesses is fatal to department's case. In this connection, he relied on the following decisions: stated that in view of the permission not being granted to cross-examine the witnesses, the original order is a nullity. Hence, relying on the decision reported in 1986 (26) ELT 14 he contended that when the original order itself is a nullity the non-deposit of duty and penalty is not required to be done and he prayed for allowing this application.
16. The learned Advocate appearing for the applicant Kripal Mohan Virmani contended that there is no material in the evidence to implicate the applicant. He contended that the applicant has no connection with the seizure of 734 Kgs. of hashish which was seized from the truck for being exported to foreign countries through Calcutta. It was contended that the statements of the driver Joginder Singh and the two khalasis Shibraj Singh and Ranjit Singh do not show the involvement of this applicant in this act of smuggling. It was also his contention that even though they were all available on the date of seizure they were interrogated on different dates and, therefore, he contended that they were forced to give certain versions to suit the convenience of the authorities. It was his contention that previously S P. Rao and applicant Virmani, his client, were residing in one house and later S. P. Rao shifted to the previous farmhouse wherefrom some documents were seized. One document was a tution book of the daughter of the applicant which by oversight was taken by S.P Rao while shitting. Otherwise, it is highly unthinkable that applicant will keep this book in that premises from where hashish was recovered to invite the officers and to get an evidence against him and to get himself implicated in this case. He also invited our attention to the fact that on reaching his house no incriminating materials were seized, which shows his innocence 17. As far as the so-called voluntary statement is concerned he contended that the same was extorted under duress and threat and by using physical violence. In order to support this argument he drew our attention to the fact that Kripal Mohan Virmani, the applicant, was produced before the Chief Judicial Magistrate's Court on 30.9.1986 and before the C.J.M. he retracted his so-called voluntary statement and this being done at the earliest opportunity the same could not be acted upon. He brought to our notice an application of the applicant dated 30.9.1986 wherein he had alleged before the learned Magistrate that he surrendered before the D.R.I. officials on 28.9. '986 and, thereafter he was beaten and lighted cigarettes were put on his body and confessions were extracted from him by physical torture and that the statement is not a voluntary one. He also brought to our notice the Medical Certificate issued by the doctor after examining the applicant on 30.9.1987, as per the orders of the learned Magistrate. It is seen from that certificate that on examination of Kripal Mohan Virmani swellings and sprains and cigarette burns were found on his body and the doctor opined that such injuries are simple and could be caused by a blunt weapon and they could be caused within 36 hours of his examination and that they are homicidal. Our attention was also invited to the fact that the learned Advocate for the applicant filed an application before the learned Magistrate on 28.9.1989 praying permission to allow him to be present at the time of interrogation of the applicant by the officials and also the permission granted by the Court in this behalf. He also drew our attention to the fact that on 29 9.86 the learned Adv. made another application before the learned Magistrate that by virtue of that order when he approached the D.R.T.officials he was not allowed to be present and he was asked to go out and also to the petition appraising the Magistrate about the contempt committed by the D.R.I, officials in this behalf, including the Director of D.R.I. Shri Karan Singh. It was, therefore, contended that all these facts will go to show that the statement of applicant was not a voluntary one and once if that was so, the statements of the other co-accused cannot be a material to prove his guilt without any further corroboration.
18. He also brought to our notice an order of the Delhi High Court rendered on 26.8.1987 in case no. G.W. 39 of 1987, by virtue of which order, the order of detention of this petitioner under the COFEPOSA was set aside.
19. We have carefully gone through the above judgment of Delhi High Court. The grounds on which the petition was allowed are: (a) that the petitioner was in judicial custody in a large scale smuggling case of hashish and there was absolutely no possibility of his coming out of the Jail during pendency of trial which was likely to take sufficiently long time and, therefore, it amounts to double detention; (b) the detaining authority had not acted swiftly on the representation of this applicant and there was no explanation for such delay in disposing of the representation; (c) the material documents were not placed before the authority and they were not considered.
20. The learned Advocate further drew our attention to the following observation of the Court: Take the case in hand. For 1/2 days a after his arrest, the petitioner remained in the custody of the officers of the D.R.I. On 30th September, 1986, when he was produced before the Addl. Chief Metropolitan Magistrate, he not only retracted his alleged confessional statements but also moved an application for his medical examination as according to him, while in custody, he had been given beating and tortured The request was acceded to. The report of the Medical Superintendent, Tihar Jail indicates that there were about four injuries on his person which appeared to be homicidal. From the perusal of these documents prima facie, one would conclude that the so called statements of the petitioner were obtained under duress. So the retracted confession assumes importance and becomes a relevant piece of evidence worth consideration The other application of Shri S. P. Rao, prima facie, would indicate that the petitioner has nothing to do with the Gadaipur farm from where the contraband hashish was recovered. In fact, no other document connects him with any of the persons allegedly connected with the farm or the smuggling of hashish.
Similarly, the bail application and the orders passed thereon cannot be lightly ignored or considered irrelevant by the detaining authority.
All the documents, list of which is referred to above, are very important and relevant to the subjective satisfaction of the detaining authority, and the non-consideration of which has been held to be fatal by the Supreme Court and other High Courts of India. In a case reported as Asha Devi. Shiv Raj and Anr. A.I.R 1979, S.C 447 the question whether the concessional statement recorded earlier was voluntary statement or was the statement which was obtained from the detenu under duress or whether the subsequent retraction of the said statement by the detenu was in the nature of an after-thought were held primarily for the detaining authority to consider before deciding the issue of detention order but since, admittedly, the aforesaid vital facts which would have influenced the mind of the detaining authority one way or the other were neither placed before nor considered by the detaining authority, it was held that there was non-application of mind to the most material and vital facts vitiating the requisite satisfaction of the detaining authority and thereby rendering the detention order invalid and illegal.
21. The learned Advocate also contended that the applicant was not produced before the learned Collector during adjudication and that he was not permitted to cross-examine the witnesses and that there was denial of natural justice in this case. In support of his contentions he relied on several rulings, which had already been mentioned by us while dealing with the case of Harnam Singh.
22. The learned JDR Shri Bhowmik contended that though the applicant was not personally present during adjudication proceedings, his learned Advocate Shri R.D. Mehra was present throughout the proceedings and there is no denial of principles of natural justice. It was also contended by him that in the statement of the applicant the applicant has given several facts which are only in his personal knowledge and these could not be concocted by the department and that itself is the guarantee to show that the statement is a voluntary one. He also contended that the statements of co-accused like Subhas Chandra Narang and others corroborate the statement of the applicant, lie contended that the statement of applicant Shri virmani is a very vivid one indicating the starting of his business career with the floating of a firm 'Kumi Exports House, his introduction to the narcotics trade by Shri Harnam Singh in association of Shri Surinder Malhotra and later on with Shri S P. Rao alias Nirmal, establishment of two firms by the name of M/s. Murgan Exports with offices at Madras and Delhi and M/s. R. S.International at Delhi, admission of sending 10 consignments of hashish through these firms in the past during the period 1981-83, sharing of the profits from the smuggling of hashish amongst S/Shri K.M. Virmani, S. P. Rao, Surinder Malhotra and Harnam Singh, winding up of two firms M/s. Murgan Exports & M/s. R. S. International consequent to seizure of two of their consignments of narcotics in U.K. and Australia. The statement also indicates that Subhas Narang was used by them for starting fictitious firms pseudonymously as Narinder Kumar and for forwarding export documents to shipping agents. After the winding up of earlier two firms, they floated two more fictitious firms-(1) M/s.
Northern Exports, New Delhi, (2) Modern Machinery and Instruments, New Delhi and that all documents for R.B.I. and Trader Bank were executed by Subhas Narang under the fictitious name of Narinder Kumar. Shri Virmani's statement also indicates vividly how after seizure of hashish from Mehrauli farm, he along with Shri Harnam Singh and Shri S. P. Rao fled to Bombay and remained there for a considerable period under fictitious name and address. The statement also indicates that in the month of June, 1986, Shri Virmani, Shri S. P. Rao and Shri Harnam Singh purchased a plate blending machine for Rs. 1,00,000/- and brought to the farmhouse in Gadaipur, Mehrauli, New Delhi, and that in the month of July, the machine along with five power presses and 660 pcs. of engine mountings were made ready for export by concealing hashish inside them. The entire statement of Shri Virmani is detail, vivid and gives the facts in their logical sequences and consistence. The statement appears to be spontaneous and not under threat and coercion.
The Customs officers cannot churn up such a long story particularly about such fictitious firms and that the firms are fictitious, has been proved beyond doubt further, the recovery of the documents, inter alia, relating to the fictitious firms along with one blank letterhead of Virmani & Co., some household effects of Shri Virmani in the farmhouse, a copy of the telex message sent by M/s. Kumi Export House, New Delhi to M/s. Inter Contintental Traders Ltd., London from telex No.3162322-are all matters of record and undisputed (acts. The proprietor of M/s. Kumi Export is Shri K. M. Virmani himself and the telex connection with the No. 3162322 was opened in the name of M/s. Kumi Exports House as verified on enquiry from the Commercial Officer (Telex), Maha-nagar Telephone Nigam, New Delhi. Further, copies of students' concession form of Miss Swapna Virmani, and Miss Aparna Virmani, daughters of K.M. Virmani, from the farmhouse are also matters on record and undisputed facts. Therefore, even if just for the sake of argument, it is assumed that the statement of Shri K. M. Virmani tendered before Customs officer was not voluntary and exported statement, the recovery of the documents, the household effects and the particular of telex connection of Shri K. M. Virmani and other materials undoubtedly indicate very deep seated involvement of Shri K.M. Virmani in the illicit trade of narcotics.
23. He also drew our attention to the statement of Shri S.C. Narang to the effect wherein he has mentioned that he started working with M/s.
Virmani Chit Fund Pvt. Ltd. at C-119, Greater Kailash-I, New Delhi and Shri K.M. Virmani was the Managing Director of the said company. He was introduced by Shri K. M. Virmani to Shri S. P. Rao and Shri Harnam Singh. They wanted to establish some fictitious companies for export of hashish. As per their directions, Shri Subhas Narang rented offices at 170, Hari Nagar Ashram, New Delhi and G-2, Vishal Market, Parmanand Colony, New Delhi, that for running these two offices, Shri Subhas Narang introduced himself as Narinder Kumar as per the direction of S/Shri Harnam Singh, S. P. Rao and K. M. Virmani. Shri Subhas Narang also applied to Reserve Bank of India for allotment of Code No. and the application was signed by him as Narinder Kumar. He also started a current account with Traders Bank India Ltd., Parmanand Colony, New Delhi in the name of Modern Machinery & Instruments and he filled up his name as Narinder Kumar. The documents relating to the shipment of machines and machine parts containing hashish prepared by him in December, 1985 as well as July, 1986, were signed pseudonemously as Narinder Kumar. On his own admission, he himself came to Calcutta and delivered the shipping documents to the two clearing agents-M/s. Lee & Muirhead (India) Pvt. Ltd. and M/s Shaikh & Pandit, Calcutta.
24. He also brought to our notice the statement of Kamal Kishore wherein he had implicated both the above applicants as dealing in hashish smuggling. He has stated that after collecting hashish the both Shri Gurdeep Singh and Harnam Singh used to hand over consignments to Shri K. M. Virmani and Shri S.P. Rao alias Nirmal. He also brought to our notice that Shri Virmani identified Gurdeep Singh when the photo was shown. He also contended that the confession of a co-accused like Subhas Chandra Narang, Kamal Kishore are sufficient to hold that at this juncture the department has a prima facie case. In this connection, he relied on a decision of the Tribunal reported in Sukh Narain's case reported in 1986 (9) ECR Page 574 wherein the appellants were found guilty on the statement of some of the co-accused. It was his contention that these statements are not hit by Section 25 of the Indian Evidence Act. He also contended that from the farmhouse hashish was recovered and when Mahesh Vohra, one of the witnesses, was taken there, he identified the photograph of Shri Virmani and also stated that he was introduced to Harnam Singh by Shri Kripal Mohan Virmani. He also identified the household articles found there as belonging to Shri Virmani. He also drew our attention to the statements of Miss Swapna Virmani, and Miss Aparna Virmani, daughters of Kripal Mohan Virmani, who identified these articles as being in their possession, while they were residing in No. D-1//56, Vasant Vihar, New Delhi and that they also identified the photograph of Nirmal.
25. As far as financial position is concerned it was contended that the applicant is getting monthly rent of more than twelve thousand rupees and that he has got properties in his name and there is no hardship involved.
27 We intend to take up the case of Harnam Singh in the first instance.
As far as he is concerned, there are the statements of Joginder Singh, the driver of the truck and the inmates, Shibraj Singh and Ranjit Singh. The statement of Joginder Singh is to the effect that it was at the instance of Harnam Singh, he drove the truck to Calcutta and Harnam Singh also gave him Rs. 1000/-for expenditure on this account for such driving of this vehicle. This was corroborated by Shibraj Singh and cleaner Ranjit Singh. The statement of Gopal Singh, peon of Transport Company bearing the name Nice Goods Carrier" stated that Harnam Singh is the owner of this Transport Company and Gurdeep Singh and S. P. Rao, alias Nirmal, used to come and have private discussions with him. It is in the statement of Joginder Singh that when the truck which he was driving at the instructions of Harnam Singh reached at Mehrauli, the machines and other bundles containing hashish in question were loaded there and Gurdeep Singh and Nirmal were the persons who got them loaded through the coollics. Shibraj Singh also corroborated this statement by stating that both Nirmal and Gurdeep Singh were present at the time of loading these goods at Mehrauli. Ranjit Singh, the cleaner of the truck also gave a statement that Harnam Singh, is the owner of the truck and at the instructions of Harnam Singh, Joginder Singh drove the truck in question to Calcutta and himself and Shibraj Singh were also inside the truck. It is also stated by him that under orders of Harnam Singh the truck was taken to Mehrauli where the big machine, three small machines in chest and 39 cases were loaded by coollies at the instructions of Gurdeep Singh and Nirmal Then Nirmal asked them to go to Calcutta.
Kamal Kishore. the Manager of the Transport Company, viz. "Nice Goods Carrier also stated that Harnam Singh is its owner and that Harnam Singh and KripalMohan Virmani are doing smuggling business in hashish with the help of Gurdeep Singh and Nirmal. Kripal Mohan Virmani himself in his statement implicated him with respect to smuggling of hashish along with Harnam Singh in view of these statements at this juncture, we are unable to accept the arguments advanced on his behalf that he has a prima facie case.
28 While dealing with the prima facie aspect of the "applicant's case, this Tribunal cannot weigh the evidence on record and then to reach on one conclusion or the other as if the main appeal is being heard. But what is to be seen is whether there are any materials on record which would prima facie justify the orders of the learned adjudicating authority. If there are no such materials to prima facie justify the order then the applicant can be said to have a prima facie case. But the Tribunal at this stage cannot evaluate the evidence to come to one conclusion or the other, which will be permissible at the time of hearing the appeal itself. The question as to whether denial of opportunity to cross-examine the witnesses have resulted prejudice to the applicant making the order a nullity, and whether the statement of Kripal Mohan Virmani implicating the applicant is a statement recorded under threat or coercion, are all matters which are to be considered while the main appeal is heard. A detailed examination of the statement of the witnesses and analysing the same to find out the truthfulness, or improbabilities of these statements and evaluation of such materials on record to come to one conclusion or other is not permissible while considering the prima facie case in favour of the applicant Hence in view of the several statements as enumerated above and other.
circumstances available against this applicant, we are of the opinion that the applicant has no prima facie case at this juncture so as to enable us to waive the entire pre-deposit of penalty, which was imposed on him.
29 As far as the question of hardship is concerned, admittedly, Harnam Singh is having a house in his name It is his case that he had mortgaged it to Punjab National Bank. However, the fact remains that he is the owner of a house. The several statements of different persons connected in this case, which are recorded by the authorities under Section 108 of the Customs Act is to the effect that Harnam Singh is the owner of a Transport business. The argument of the learned Advocate for the applicant that the affidavit filed by the applicant being not controverted by a counter-affidavit, is to be accepted in to to, cannot be accepted by us. The reason is that it is for the applicant to establish his hardship to the satisfaction of the Tribunal and merely because the department has not filed a counter-affidavit, we cannot come to a conclusion that applicant's hardship automatically stands established to our satisfaction. However, taking into consideration the totality of the circumstances prevailing in this case and on an overall consideration of the materials before us, we hereby order that the applicant Shri Harnam Singh shall deposit an amount of Rs. 1,25,000/- (Rupees one Lakh twenty five thousand) only towards penalty and execute a personal bond for the balance amount of Rs. 75,000/- (Rupees seventy five thousand) only to the satisfaction of the Collector, within three months from the date of receipt of this order, and if he so does, the department shall not take any steps towards recovery proceedings during the pendency of this appeal.
30. As far as the applicant Kripal Mohan Virmani is concerned, the learned Advocate contended that there is a prima facie case for the appellant. it was his contention that the voluntary statement said to have been recorded by the officers are extracted by coercion and threat. In this connection, he brought to our notice that he was produced before the Chief Judicial Magistrate whtn he had retracted the statement. He also produced a certified copy of the application filed by the elder brother of the applicant in the Chief Metropolitan Magistrate's court at Delhi. It was stated therein that Kripal Mohan Virmani surrendered before the DRI and he and his brother were taken by the DRI officers and he accepts that Kripal Mohan Virmani will be subjected to third degree methods. So also, on 13.9.1 986 Kripal Mohan Virmani had given an application to the learned Magistrate stating that he was beaten and he was tortured by putting lighted cigarettes on his body. Accordingly, the learned Magistrate ordered for his medical examination and he was examined on 13.9.1986 and four simple injuries were found on his person. Certiricate of the doctor is also produced in this case. It was therefore, contended that the statement was extracted under duress. In this connection, the learned Advocate further drew our attention to the orders passed by the Hon'ble High Court in CRW 39/87 dated 26th August, 1987 with respect to the detention of this applicant in COFEPOSA. In that judgment the Hon'ble High Court stated that the retracted confession assumes importance and becomes a relevant piece of evidence. The Hon'ble High Court further observed as follows: The other application of Shri S. P. Rao prima facie would indicate that the petitioner has nothing to do with the Gadaipur farm from where the contraband hashish were recovered.
The Hon'ble High Court did not have the full facts while making that observation. On the contrary the Hon'ble High Court has also stated in that very same order that: It is not disputed that immediately after his arrest on 29th September, 1986, the petitioner filed an application for his release on bail before the Additional Chief Metropolitan Magistrate, New Delhi. After contest this application was rejected on 29th October, 1986. The order of detention dated 5th November, 1986 was served while he was in jail custody. Normally, when a preventive order is passed against a person already confined to jail, the detaining authority must show awareness that the person sought to be detained is already in jail and that a preventive detention order is a compelling necessity....
The Hon'ble Court further held that "there was absolutely no possibility of his coming out of the jail during the pendency of the trial which was likely to take sufficiently long time. The circumstances do indicate that there was no compelling necessity on the part of the detaining authority to pass the order of adjudication which has proved the case of double detention." 31. Therefore, on the ground that the petitioner is not likely to come out for a long time and since it was a double detention and since the materials placed before the detaining authority were not looked into carefully the detention was quashed. But that order was passed by the Hon'ble High Court in a different context and the observations thereon is not conclusive of the matter The several statements of the witnesses were not before the Hon'bie High Court. In such circumstances and on the basis of that judgment it cannot be contended that there is a prima facie case. The fact whether the statement of accused is voluntary is a fact which has to be determined at the time of hearing main appeal. But at this stage what has to be seen is whether the applicant has established a prima facie case. The Tribunal at this juncture cannot go into the pros and cons of all the materials and to decide whether the applicant is guilty or not. The evaluation of the evidences at this juncture cannot be done as if the final appeal is being taken up for a decision in the matter. This is only a Stay Application and the prima facie aspect has to be taken into consideration by this Tribunal. In these circumstances, whether the denial of cross-examination of the witnesses by the applicant has caused prejudice to him is also another matter which has to be looked into when appeal will be decided finally.
However, when (he applicant was represented before the learned adjudicating authority through an advocate, it cannot be said that the principles of natural justice were violated merely because of the fact that he was not personally present at the time of adjudication. Even that fact can be looked into at the time of final disposal of the appeal and taking into consideration of the relevant facts and circumstances the Tribunal has to come to a conclusion whether the absence of the personal appearance of this applicant has caused him any prejudice in spite of the fact that he was represented by an Advocate.
Prima facie, there is a confessional statement of this petitioner before the Customs authorities implicating himself. If that were to he the only statement to implicate the accused, then in view of the fact that he was injured as per the medical certificate granted by the doctor, it could have been said that he has a prima facie case. But besides there are several other materials collected by the department to implicate the applicant in this case. From the farm house from where the hashish was recovered, some papers belonging to this applicant were traced out There was some furniture found in that farmhouse and the daughters of this applicant identified this furniture as belonging to them. There is also a statement of Shri Subhas Chandra Narang who stated that he was working with the applicant and it was stated by him that Kripal Mohan Virmani introduced him to one S.P. Rao, alias Nirmal.
It was also seen from the statements that Kripal Mohan Virmani, S.P.Rao, Harnam Singh were exporting machines out of India and they wanted to establish some fictitious companies. It was also his statement that Virmani told him that these machines are used in exporting hashish.
There are also statements of Joginder Singh and Ranjit Singh and also the statement of S.P. Rao implicating this applicant. The value to be attached to these statements are to be gone into at the time of hearing of the main appeal. But, on an interim application like the present one wherein the Tribunal is concerned only with the prima facie aspect of the case, these matters cannot be gone into in minute detail as if this Tribunal is deciding the case finally. The evaluation of the materials placed and their magnitude can be looked into minutely at the time of disposal of the appeal. But, prima facie the department has placed some materials to implicate the applicant in this case. In such circumstances, it cannot be said that the applicant has a strong prima facie case so as to enable us to waive the entire penalty which was imposed on him.
32. As far as the hardship is concerned, the learned Advocate contended that the applicant does not have sufficient means to pay the amounts.
In this connection, statement of Mahesh Kumar Mehra can be referred wherein he had stated that he purchased a land at Delhi in collaboration with Kripal Mohan Virmani for Rs. 2.80 lakhs. They both constructed that house by spending Rs. 8 lakhs and Kripal Mohan Virmani contributed Rs. 4 lakhs. Both he and Kripal Mohan Virmani stayed in this house till February, 1986 and later it was let out to Shri S. P.Rao for a monthly rent of Rs. 20,000/-. This was rented out by S. P.Rao to the Russian Embassy for Rs. 25,000/-, as suggested by Kripal Mohan Virmani. Therefore, it is clear that he has got a share on this rent. It is also seen from the other statements that he was doing Chit fund business and other transactions. It cannot be said that there is such hardship to this applicant so as to enable us to waive the entire penalty.
33. However, taking into consideration the totality of the circumstances in this case, we do hereby order this applicant to deposit a sum of Rs. 1.25 lakhs (Rupees one lakh twenty five thousand) only as pre-deposit towards penalty and execute a personal bond for the balance amount of Rs, 75,000/- (Rupees seventy five' thousand) only within three months from the date of receipt of this order, and if he so does, the department shall not take any steps towards recovery proceedings during the pendency of this appeal.
34. Accordingly, these Stay Petitions are disposed of in the above terms.