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2017 Supreme(Bom) 1663
IN THE HIGH COURT OF JUDICATURE AT BOMBAY AT GOA BENCH
G.S. PATEL, NUTAN D. SARDESSAI, JJ.
Ciabro Alemao, Goa through legal representatives & Others – Appellants
Versus
The Commissioner of Customs & Another – Respondents
Customs Appeal Nos. 3, 4, 5, 6, 7 of 2005
Decided On : 11-10-2017
For the Appellants :J. Supekar, Advocate
For the Respondents:P. Kamat, Additional Government Advocate
The main legal point established in the judgment is the requirement for evidentiary certainty and proof in penalty adjudication proceedings under the Customs Act, and the importance of adhering to principles of natural justice and statutory provisions.
Headnote:
Customs Act - Penalty Adjudication Proceedings - Section 112(a) - Section 138B - Section 108 - Section 155 - Evidence and Proof
Fact of the Case:
The case involved allegations of gold smuggling and penalty adjudication proceedings under the Customs Act, 1962. The appeals challenged the order of the Customs, Excise & Service Tax Appellate Tribunal (CESTAT) dismissing the appellants' appeals against the penalty adjudication proceedings. The central issue was whether penalty adjudication proceedings could be conducted without the actual seizure or confiscation of the alleged contraband gold and based only on the evidence of three witnesses who were not allowed to be cross-examined.
Finding of the Court:
The court found that the impugned order could not be sustained as the absence of the contraband itself was sought to be substituted by conjecture. The court held that the provisions of the Customs Act could not be interpreted in such a fashion and emphasized the need for evidentiary certainty. The court also criticized the inappropriate language and tone of the CESTAT order and highlighted the lack of evidence and proof in the case.
Issues: The issues raised included the imposition of penalty under Section 112(a) of the Customs Act without the actual seizure or confiscation of the alleged contraband, the reliance on Section 138B of the Customs Act in departmental adjudication proceedings, the use of observations of the Supreme Court in a separate case to substitute as actual proof of contraband, the violation of principles of natural justice in the absence of cross-examination, and the sufficiency of testimony and estimation of the alleged contraband's value.
Ratio Decidendi: The court emphasized the need for evidentiary certainty and proof in penalty adjudication proceedings under the Customs Act. It highlighted the misinterpretation and misapplication of statutory provisions, the inappropriate language and tone of the CESTAT order, and the lack of evidence and corroboration in the case.
Final Decision: All five appeals were allowed, and the impugned orders dated 14th October 1994 and 13th December 2004 were quashed and set aside. No costs were awarded.
G.S. Patel, J.
A. PREFATORY
1. The factual background to these appeals is startling, and reads like a script for a high-octane action movie: a daredevil customs officer, allegations of gold smuggling, dinghies arriving on a deserted south Goa beach and offloading cargo said to contain contraband gold, a group of men alleged to be smugglers, some with political connections, one a former Chief Minister of Goa, a high-speed carand- motorcycle chase along narrow village roads in south Goa, a knife fight, accusations of murder, silent villagers and bystanders, and three separate but interlinked courtroom dramas that travelled twice to the Supreme Court. There is more than a touch of magic realism in all this, and the whole of it sometimes feels like a piece of fiction, a hybrid of Marquez, Ludlum and Grisham. It could only happen in Goa. Yet, while there is no dearth of distractions, the common issue in law in all five appeals is very narrow indeed: without any seizure or confiscation of the alleged contraband gold, i.e., without it being available and in hand, and based only on the evidence of three witnesses who were not allowed to be cross-examined, could the authorities ever have embarked on and concluded any penalty adjudication proceedings for its ‘improper importation’ under Section 112(a) of the Customs Act, 1962? There are, to be sure, other issues that arise, implicit or embedded in this question.
2. Having heard learned Counsel on both sides, we are not in the least satisfied that the impugned order can be sustained. The absence of an essential component for penalty adjudication proceedings — the contraband itself — is sought to be substituted by conjecture: ‘it must have existed’. Worse yet, the value of the contraband remains unknown to this day, and it is on the rankest speculation, and on one astonishing statement by one officer who plays a central role, viz., that his ‘experience’ when once he claimed to have ‘held’ the contraband allowed him to depose to its aggregate value, that the entire edifice of the order is founded. If once there was a ‘witch-hunt’ against this officer, as he contends, it rather seems to us to now be full-tilt in reverse, with the authorities grasping at any straw. We do not believe that the provisions of the Customs Act, given their ambit, purpose and scope, can be interpreted in this fashion. The interpretation is not just ‘liberal’, itself impermissible in a statute of this sort. It is a formless, elasticised interpretation that is adopted, one entirely unknown to our jurisprudence, founded on nothing but inference, surmise and supposition, not evidence. Even in the narrative to which we have earlier referred there are certain inflexion points that give us pause. These speak to inexplicable — and unexplained — conduct at the time in question, of the clearest evidence-harvesting opportunities squandered, or missed, or allowed to be lost. Today, these holes and gaps in the Customs’ case are sought to be covered up by obtuse and oblique inferences and suggestions. This is not a case of circumstantial evidence. It is a case of no evidence at all sought to be supplanted by argument and supposition. A statute like the Customs Act is founded on evidentiary certainty. That fundamental cannot be jettisoned under any circumstances.
3. There is a popular impatience with the slowness of the legal process, the uncertainty of the outcome, and there is a corresponding popular perception that the guilty go free. We are unconcerned with these popular perceptions. We are concerned only with the rule of law, and its demand for certainty. We hold no candle for those who stand charged. Whatever be the public’s perception or understanding of these persons, we direct our attention to how the authorities amenable to our jurisdiction conducted themselves. This is where we depart, and depart most deter
