1. This appeal against the order of the Additional Collector of Customs, Palam Airport raises rather a delicate issue of a foreigner having to face considerable hardship arising out of a conviction by a Court of Law as well as the imposition of penalty in separate Customs proceedings. As such, perhaps it would be useful to set out the facts in some great detail. The appellant is a Swiss National Mr. Heinz Meier Albert who was stated to have been intercepted by Customs Preventive Officer at the exit gate of the Green Channel on his arrival in Delhi by Flight TC-914 on 22-5-82. It is alleged that his baggage examination in the presence of two independent witnesses led to the recovery of wrist watches, watch side bars, integrated circuits and car switches in considerable number collectively valued at Rs. 82,128/-. The said Swiss National could not produce, on demand, any evidence, documentary or otherwise, to establish their lawful import.
2. The contention of the Department is that the said Swiss National made a statement on 22-5-82 under Section 108 of the Customs Act, 1962 and admitted the recovery of the goods aforesaid and inter alia stated that the visit of his was the second one subsequent to his previous visit on 17th April, 1982 at which time also he had in his possession a sizable amount of US Dollars in cash as well as in Traveller Cheques stated to have been earned by him in Australia and other places which he did not declare to the Customs on his previous arrival and that he made a trip to Singapore after leaving Delhi on 16-5-82 and then came back on 22-5-82 with the goods aforesaid which were intercepted by the Customs authorities on his second visit. According to the Department, Mr. Albert made a second statement also and in the said statement he made a clean breast of his being involved in activities of the aforesaid nature in collaboration with another Swiss National Mr.
Witschi Kurt as well as a Sri Lankan National Shri Saleem Ahmed who were confronted at Kamal Guest House in Pahar Ganj. As a result of the search in the room in the said Guest House certain valuable electronic goods and certain number of assorted stones and unfinished stones were recovered for which neither Mr. Witschi Kurt nor Mr. Saleem Ahmed could produce any evidence of their coming into lawful possession of the said goods. The said goods were therefore seized and some incriminating documents considered relevant to the goods were also taken into possession. According to the Department, on the same day, namely 22-5-82 both Mr. Kurt, the other Swiss National as well as Shri Saleem Ahmed made statements explaining in detail the nefarious activities of the three in collaboration over a period of time and it emerged from the said statements that Mr. Witschi Kurt had made two other trips to India earlier as well when he had brought with him valuable electronic goods which he had got disposed of through the help of Shri Saleem Ahmed for which help he was given Rs. 10,000/- as well as an air ticket for Delhi-Italy-Sri Lanka and also his hotel expenses were met.
Consequent upon the seizure of the goods and on the basis of the statements of the three alleged collaborators, the Department proceeded against them. It would seem that the common pursuit came to an end on the confrontation of Mr. Albert at the Delhi Airport on 22-5-82. The subsequent stages of development in respect of the three alleged collaborators show divergence.
3. Another interesting point to be mentioned is that during the pendency of the proceedings before the Additional Collector of Customs all the three persons were also separately prosecuted for the commission of offence punishable under Sections 132 and 133(1)(a) of the Customs Act, 1962 and Section 5 of Imports and Exports (Control) Act, 1947. In the said prosecution proceedings, the Additional Chief Metropolitan Magistrate, New Delhi had convicted Mr. Albert and Mr.
Witschi Kurt and sentenced them to imprisonment, already undergone from 22-5-82 to 21-9-82, besides imposing a fine of Rs. 30,000/- on Mr.
Albert and Rs. 1,000/- on Mr. Witschi Kurt.
4. To go back to the Departmental proceedings against the three alleged collaborators, it is stated that the Show Cause Notice issued to Shri Saleem Ahmed on the address available on record was received back undelivered with a postal endorsement "Left without Address" and subsequent thereto, the Notice was exhibited on the Notice Board at Delhi Airport in terms of Section 153 of the Customs Act, 1962, for which no reply was received within the stipulated period. Mr. Witschi Kurt in his reply dated 27-9-82 is stated to have inter alia submitted that he did not wish to contest the case and that as he has already been convicted and has also served the term of sentence and has also paid the fine imposed by the Learned Magistrate, he pleaded for a lenient view being taken in the matter since he was left with no money and as such he prayed for release of his Passport and other personal documents to enable him to leave the country at the earliest. However, so far as Mr. Albert is concerned, he is stated to have submitted in his reply to the Show Cause Notice that the allegations made against him were wrong and his statement, reported to have been made before the Customs official was not a voluntary one and was secured under duress, threat and coercion taking advantage of his inability to understand the English properly and that as a matter of fact he had, according to him, reported for Customs clearance through Red Channel counter and declared all the goods and wanted a detention certificate for deposit of goods in the warehouse but instead the Customs authorities foisted a false case and forced him to sign statements by using third degree methods.
Further he contended that he had suffered a lot as he had been in jail since 22-5-82 and was not in a position to deposit the amount of fine i.e. Rs. 30,000/- imposed by Additional Chief Metropolitan Magistrate on 21-9-82 and Rs. 20,000/- deposited by hitn towards the fine imposed was the amount that he could obtain by pooling all the resources of his relatives and for the balance of the fine he had undergone further imprisonment from 21-9-82 to 25-10-82 in addition to his imprisonment from 22-5-82 to 21-9-82.
5. The Additional Collector of Customs after discussing details of the case and the factual position including the prosecution and punishment imposed by the Additional Chief Metropolitan Magistrate, had stated that in passing his order he is not in any way being biassed by the order of the Court. He ordered the absolute confiscation of the goods of collective value of Rs. 82,128/-seized at the Delhi Airport on 22-5-82 as well as the containers and packages for sealing the said goods under Section 111(d) and 11 !(L) of the Customs Act as well as Section 118. In addition to the aforesaid confiscation, the Additional Collector also imposed by his order a personal penalty of Rs. 25,000/- on Mr. Albert and Rs. 5,000/- on Mr. Witschi Kurt and Rs. 5,000/- on Mr. Saleem Ahmed.
6. In this appeal before the Tribunal, the counsel for Mr. Albert did not lay much stress on any of the grounds of appeal set out by him but pleaded for relief to Mr. Albert on the ground of undue hardship as he was left in a state of penury in the most unfortunate circumstances far away from his own country and depending on the weekly dole of Rs. 50/- by his Embassy for his maintenance ever since his release and that his client was living in Birla Mandir Dharamshala. In view of the stand taken by the Counsel on grounds of hardship the case has become simplified to a great extent.
7. The Department has endeavoured to establish that Mr. Albert was one of the aforesaid gang of three persons. However, it could be seen that the other two persons had apparently taken advantage of the young age and inexperience of Mr. Albert and has utilised his services in their nefarious activities of getting rich quickly through smuggling. This conclusion would well be fortified by the fact that Mr. Kurt had escaped undetected in his like nefarious activities during his earlier visits to Delhi and even in the instant case before the Magistrate also Mr. Kurt would seem to have gone away with the payment of a nominal fine of Rs. 1000/- while it was Mr. Albert who was subjected to the payment of a fine of Rs. 30,000/- (of which he could pay from the pooled resources Rs. 20,000/- and for the balance of which he suffered further imprisonment) and Mr. Saleem Ahmed has gone away totally unscathed by reason of his absconding. Taking into account the value of the goods stated to have been the subject matter of the earlier nefarious activities of Mr. Kurt in collusion with Mr. Saleem Ahmed, it would seem that the two hardened and more experienced collaborators had, for whatever reasons, escaped from the clutches of law with a meagre penalty. Further, though the Learned Additional Collector had stated that in passing the order in respect of the proceedings before him he would do so without being biassed by the order passed by the Court, the Learned Additional Collector had chosen to impose a personal penalty of Rs. 25,000/- on Mr. Albert while he felt that a personal penalty of Rs. 5,000/- would suffice so far as Mr. Kurt and Mr. Saleem Ahmed were concerned.
8. The personal penalty of Rs. 25,000/- imposed by the Additional Collector of Customs, against which the Counsel for Mr. Albert has sought relief from the Tribunal on grounds of hardship, is in addition to a fine of Rs. 30,000/- imposed by the Magistrate as well as the imprisonment of 5 months suffered by Mr. Albert. On the contrary, Mr.
Kurt who had admittedly visited India earlier not possibly for any laudable purpose had gone away lightly with his illgotten money, merely because he was fortunate to have escaped the vigilant eye of the Customs Authorities on the earlier two occasions when he has stated to hatye visited Delhi and has carried on his activities in collaboration with Mr. Saleem Ahmed.
9. In determining the quantum of punishment, the Adjudicating authority should take into account all the relevant factors, including the nature and extent of the role played by each one of the alleged collaborators, the age and other attendant circumstances of a person living in an alien land far away from his own kith and kin. In cases of this kind, one could hardly ignore the fact that the appellant is a foreigner, obviously without any financial resources and has no means of paying the penalty. In fact, we come across a similar case more or less contemporaneous in point of time involving a foreigner, an Egyptian National, in indigent circumstances wherein the Central Board of Excise & Customs had itself thought it a fit case meriting a lenient view being taken in the matter of imposition of fine and had reduced the fine to Rs. 1,000/-from Rs. 30,000/-. Moreover, in imposing fine and personal penalty especially on a foreigner in such dire circumstances, the difficulty underlying recovery and realisation cannot be lost sight of.
10. In the light of the foregoing, it would be apparent that Mr.
Albert, despite his participation in a common pursuit along with two other persons, had received comparatively harsher punishment dis-proportionate to his degree of participation in the common nefarious pursuit and it gets aggravated in contrast to the meagre punishment suffered by the rest. In coming to this conclusion, we have not for a moment forgotten the basic principle that in dealing with persons indulging in economic and social offences which tend to paralyse the nation's economy, there should be no scope for misplaced sympathy. But all the same, the need to tailor the penal treatment to the individual offender cannot be ignored. The Tribunal directs that having regard to all the circumstances of the case and more particularly the considerable amount of hardship already undergone by the appellant the personal penalty imposed on Mr. Albert be reduced to Rs. 1000/- (Rupees one thousand only).