S. Kalyanam Member (J)

1. Since the above appeals arise out of a single transaction and the evidence is common, they are taken up together at the request of the parties and disposed of together. For the purpose of convenience we shall first take up the appeal arising out of the Customs Act, 1962.

2. C (T) 197/82 :

This is a transferred case in terms of Section 131B of the Customs Act, 1962 and is directed against the order of the Collector of Customs and Central Excise, Cochin, referred to supra, absolutely confiscating 200 gold bars with foreign markings under Section 111(d) of the Customs Act, 1962, read with Section 3(2) of the Import and Export (Control) Act, 1947 and Sections 8(1) and 23A of the Foreign Exchange Regulation Act read with Notification No. 12 (ii) F-l/48 dated 25-8-1948, as amended, besides imposition of a penalty of Rs. 8 lakhs on the appellant under Section 112(b) of the Customs Act, 1962.

3. On prior information and in pursuance of a search warrant issued by the Assistant Collector, C.I.U., Headquarters Office, Cochin, the Superintendent of Customs, Cochin, with his staff searched the residential premises of the appellant at No. 41/840-A, St. Vincent's Cross Road, Ernakulam on 6-12-1980. During the course of the search the authorities recovered a wooden box kept buried under earth about 2 feet away from the northern wall of the prayer room of the house. The box on examination was found to contain 200 gold bars in biscuit shape, out of which 155 bars bore the markings" CREDIT SUISSE 9990-10 Tolas CHI ESSAYER FOUNDEUR" and 45 numbers had markings JOHNSON MATHEY 9990-10 TOLAS LONDON". The purity and weight of the gold was respectively verified and ascertained as 24 ct. and 23,200 gms. The said gold bars were seized by authorities as per law under mahazar attested by witnesses besides the appellant himself. The appellant gave a statement before the authorities on 7-12-1980 admitting ownership of the gold bars under seizure. It is in these circumstances, after further investigation, proceedings were instituted against the appellant which eventually culminated in the impugned order now appealed against.

4. The learned counsel for the appellant submitted as follows inter alia :

1. Though the recovery and seizure of the gold bars from the residential compound of the appellant is not disputed, the materials on record do not warrant an inference that the appellant was in conscious, intelligent possession of the same and therefore, imposition of a penalty on the appellant is not legally sustainable.

2. The statement recorded from the appellant by the authorities on 7-12-1980 which is inculpatory in nature and confessional in character was assailed on the ground that the same is not voluntary and true, and was brought about under duress and in detention.

3. The adjudicating authority is in error to have invoked the presumption under Section 123 of the Act against the appellant when no such presumption can be drawn against the appellant as the gold bars under seizure were not recovered from his possession.

4. No reliance under law can be placed on the statement of M.P. Poulose who is in the position of an accomplice.

5. The appellant having retracted and resiled from his confessional statement, the same has no evidentiary value.

5. The learned SDR submitted that-

1. The statement recorded from the appellant on 7-12-1980 is clearly confessional in nature and has been rightly accepted and acted upon by the adjudicating authority.

2. The appellant did not retract the confessional statement immediately nor did he make any grievance of any coercion and illegal detention by the authorities to any authority, much less before the Judicial Magistrate when he was taken for remand and this would only establish that the statement recorded from the appellant was voluntary and true.

3. Though the appellant retracted the confession on 15-12-1980, no convincing satisfactory explanation was offered for such belated retraction.

4. The statement