Saleh Ahmed And Others vs Commissioner Of Customs (Preventive), Kolkata

Ashok Jindal, Member (J)

The appellants are in appeal against the impugned order wherein the penalties under section 112 of the Customs Act, 1962 has been imposed on them of Rs.10.00 Lakhs and Rs.1.00 Lakh respectively.

The facts of the case are that acting upon the intelligence given by DRI at about 4.30 p.m. on 17.06.2015, the officers of DRI, Shillong Regional Unit intercepted a red coloured Hyundai i20 car bearing Registration No. [WB-20Z-7017] at Ghoshpukur Toll Gate while the said vehicle was coming from Bagdogra side and moving towards Kolkata. The three occupants of the intercepted car disclosed their identities as Md. Addul Hannan (the driver), Md. Saleh and Sanowar Ali. On questioning by the DRI officers the said intercepted persons denied to be carrying any type of contraband. When the DRI officers proposed to search their persons, luggage and vehicle at that place, the occupants of the vehicle requested the officers to carry out search at a secured place as the place of interception was a public place. Conceding to the request of the apprehended persons, the DRI officers brought the intercepted vehicle along with its three occupants to the DRI Office.

On reaching DRI office at about 18.00 hrs. on 17.06.2015, the said three persons were again asked by the DRI officers in presence of two Panchas whether they were carrying any contraband with them to which they again replied in the negative. The said three persons were then searched one by one in presence of two independent witnesses (Panchas). On search, one mobile phone each was recovered from the three persons. A mobile phone brand Micromax Bold Q324 was recovered from the possession of Md. Abdul Hannan, a mobile brand Karbonn was recovered from Md. Sanowal Ali and one mobile phone of brand Samsung was recovered from the possession of Md. Saleh Ahmed. Thereafter, the vehicle having MV Registration No.WB-20Z-7017 was searched by the DRI officers in presence of Panchas and the three occupants of the vehicle. On search, nothing incriminating was recovered from there except the certificate of registration of the said vehicle, one Form-26 showing transfer of ownership of vehicle, one photocopy of trade license of M/s. Laxmi Creations and one signed photocopy of PAN card of Shri Krishna Kumar Kedia, Proprietor of M/s. Laxmi Creations, application and grant of NOC by registerin authority, Kolkata PVD, one money receipt of Rs.2,85,000/- (Rupees two lakh eighty five thousand only) given by Krishna Kumar Kedia and one Sale Deed in Rs.50/- (Rupees fifty only) Non-Judicial Stamp paper executed by one FM Abul Kalam of Manipur in favour of Md. Abdul Hanner.

As the intelligence suggested that the gold would be concealed in the vehicle having MV Registration No.WB-20Z-7017, it was felt that to look for hidden cavities where the gold might have been possibly concealed, help of a mechanic is required for conducting a thorough search of the said vehicle. Accordingly, a mechanic was requisitioned and in presence of the said three occupants and two independent witnesses, a thorough search of the vehicle was carried out with the assistance of said mechanic. From the fuel chamber under the rear seat of the vehicle four packets wrapped in white cloth, each containing some very heavy objects were recovered.

The said four packets wrapped in while cloth were brought inside the office of DRI Siliguri and opened in presence of the three intercepted persons and the Panchas. On opening of the said packages, each such packet was found to contain 30 pcs of Yellow Metal in biscuit form believed to be gold of foreign origin. In total 120 pcs. Of such Yellow metal biscuits were recovered from the said 04 packets. Though some metal biscuits were marked with foreign inscriptions, foreign markings on the other biscuits were found to be obliterated. After recovery of the yellow coloured metal biscuits in front of them, the said three persons – Md. Abdul Hannan, Md. Saleh Ahmed and Md. Sanowar Ali finally admitted that the said Yellow Coloured Metals in biscuit form were actually gold of foreign origin that were smuggled into India through the Indo-Myanmar border at Morey in Manipur and were handed over to them for delivery at Kolkata. On demand, they could not produce any licit documents in support of importation/possession, carrying transportation or dealing with the said yellow coloured metals believed to be gold of foreign origin. Thereafter, the said gold was seized and further investigation was conducted. After investigation a show cause notice was issued to the appellants proposing imposition of penalty under section 112 of the Customs Act, 1962. Thereafter, the matter was adjudicated, the gold was not claimed by anybody to be the owner of the same, therefore, the gold was absolutely confiscated and penalty of Rs.10.00 Lakhs and Rs.1.00 has been imposed on the appellants. Aggrieved from the imposition of penalties, the appellants are before me.

The Ld.Counsel for the appellants submits that the appellants were not knowing about the fact that the vehicle was having gold. In fact they were asked to deliver the vehicle at Kolkata and in good faith they have taken the vehicle in their possession and travelling to Kolkata. It was only hearsay that suggested that there was gold in the vehicle, therefore, the appellants are not liable for penalty.

On the other hand, the Ld.AR for the department submitted that it is a case of smuggling of gold, which was not owned by anybody and during the course of search of the vehicle, the appellants were carrying, 120 pieces of gold which were of foreign origin. In that circumstances, penalty under section 112 of the Customs Act, 1962 is rightly imposed.

Heard the parties, considered the submissions.

I find that during the course of investigation, voluntary statements of the appellants were recorded, which is as under :-

[A] Saleh Ahmed (Noticee No.1) along with Abdul Hannan (Noticee No.2) and Salowar Ali (Noticee no.3) was intercepted on 17.06.2015 by the DRI officers of Siliguri on the basis of specific intelligence, near Ghoshpukur of Darjeeling district, while, they were travelling in a Hyundai i20 car bearing Registration No.[WB-20Z-7017]. All of them initially denied having any contraband in their possession. Subsequently, after recovery of impugned gold bars from the inside of fuel tank of said car [in presence of them], admitted that they were knowingly carrying the subject consignment of gold bars as per instruction of Ayub Ali [@ F.M. Abdul Kalam] owner of the said car. Saleh Ahmed (Noticee No.1) in his statement dated 17.06.2015, recorded under Section 108 of the Customs Act, 1962 had categorically confessed that (i) he got acquainted with F M Abdul Kalam of Lilong (Imphal) few days before the incident; (ii) that Abul Kalam was a business man but he had no idea about his exact business; (iii) that F M Abul Kalam was popularly known as ‘Ayub Bhai’ (iv) that Ayub Bhai had purchased impugned car [Hyundai i20] from one Krishna Kedia in the month of January 2015; (v) that on 14.06.2015 ‘Ayub Bhai told him that his i20 Hyundai car bearing registration No. [WB-20Z-7017] had to be taken to a certain place at Kolkata (vi) that ‘Ayub Bhai’ had further said that a huge quantity of gold that had been smuggled into India through the Indo-Myanmar border at Moreh (Manipuar) and would be secreted (concealed) in the fuel chamber of the said Hyundai i20 car; (vii) that said ‘Ayub Bhai’ promised a handsome amount of money to him for carrying out the said job; (viii) that for earning quick money, he agreed to the proposal of Ayub Bhai (F.M. Abul Kalam); (ix) that as per the direction fo the said ‘Ayub Bhai], he had instructed to Abdul Hannan (the driver of Ayub Bhai’s Hyundai i20 car), to park the said car in front of his shop at Lakhtokia Market, (Guwahati) and hand over the keys of the car to him, ‘Ayub Bhai’ took the car keys from him (Saleh Ahmed) in the night of 15.06.2015 and handed back the car in the early morning of 16.06.2015 with the subject consignment of gold loaded in the fuel tank of the car; (x) that on 16.06.2015 at about 07.00 hours he along with Abdul Hannan, (the driver of Ayub Bhai) and one Sanowar Ali, a hawker started towards Kolkata; (xi) that he had offered to pay Sanowar Ali handsome amount of money to help in transportation of the smuggled gold to Kolkata; (xii) that his mobile number was 9954313486 and Mobile number of FM Abul Kalam @ Ayub Bhai was 7085227280, ‘Ayub Bhai’ kept contact with him through mobile number 7085227280; (xiii) that he had associated himself in this illegal act of smuggling for sheer greed of money.

Further statement of Sanowar Ali was recorded, which is as follows:-

Sanowar Ali (Noticee No.3) in his statement dated 17.06.2015, recorded under section 108 of the Customs Act, 1962 had categorically confessed that (i) On 15.06.2015, Saleh Ahmed had told him that he had a job to hand over a car at Kolkata and if he accompanied Saleh Ahmed he would give him some money, on his query Saleh Ahmed told him that consignment of gold smuggled into India through Indo-Myanmar border at Moreh (Manipur) would be carried in the car; after hearing of this he initially refused to accompany him but Saleh Ahmed assured him that there was no risk in the job, the smuggled gold would be concealed in such a manner that nobody would ever be able to trace it; (ii) that finally for the sake of earning some easy money he agreed to accompany Saleh Ahmed to Kolkata; (iii) that on 16.06.2015 at about 07.00 hours, as per schedule, eh along with Saleh Ahmed and Abdul Hannan (the driver of the car) had started towards Kolkata in a Hyundai i20 car having Registration No. [WB-20Z/7017] (iv) that he was only a hawker and had associated himself in this instant act of smuggling for greed of money; (v) that he did not know anyone named F M Abdul Kalam alias Ayub Bhai.

On going through these statements of the appellants which were recorded during the course of investigation, the appellants themselves have admitted that one Ayub Bhai has told them that the vehicle is carrying 120 pieces of gold which were kept in fuel chamber secretly concealed in the said vehicle. The said fact was in the knowledge of the appellants and at the time of interception of the vehicle, the appellants have made statement that they were not carrying any contraband goods with them, which shows that the mala fides of the appellants, in that circumstances, the penalty is rightly imposed by the adjudicating authority to meet the ends of justice and to teach a lesson to the appellants not to involve in such activities in future. Therefore, I do not find any infirmity in the impugned order for imposing penalty on the appellants.

Accordingly, the impugned order qua imposing penalties on the appellants of Rs.10.00 Lakhs and Rs.1.00 Lakh respectively, is upheld. The appeals filed by the appellants are dismissed.