IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 28TH JANUARY 2008 / 8TH MAGHA 1929 OP.No. 4781 of 1998(T) ---------------------- PETITIONER: ------------ K.V.PRABHAKARAN, S/O.(LATE) C.CHATHUNNI, HOUSE NO.IX/790, KULANGARA VEEDU, KATTILANGADI STREET, THANOOR P.O., MALAPPURAM DT. BY ADV. SRI.M.N.SUKUMARAN NAYAR(SR.) SRI.S.SUBHASH CHAND RESPONDENTS: ------------- 1. UNION OF INIDA, REP. BY THE JOINT SECRETARY, MINISTRY OF FINANCE (DEPARTMENT OF REVENUE), (REVISIONAL AUTHORITY UDNER SECTION 129-DD OF THEre CUSTOMS ACT, 1962), 3RD FLOOR, JEEVAN SANSAD MARG (PARLIAMENT STREET), NEW DELHI. 2. THE COMMISSIONER OF CENTRAL EXCISE AND CUSTOMS (APPEALS), C.R.BUILDINGS, I.S.PRESS ROAD, KOCHI-18. 3. DY. COMMISSIONER OF CUSTOMS, -DO- 4. THE SUPDT. (INT.) AIR CUSTOMS, CALICUT AIRPORT, CALICUT. BY ADV. SRI.ABDUL SAMMAD.C.S.-A.C.G.S.C. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 28/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.NO.4781/98. APPENDIX PETITIONER'S EXHIBITS: P1. COPY OF THE ADJUDICATION ORDER DTD.20.3.96 OF R3. P2. COPY OF THE APPELLATE ORDER DTD.20.12.96 BY R2. P3. COPY OF THE ORDER DTD.7.10.97 BY R3. P4. COPY OF THE STATEMENT GIVEN BY V.HARINARAYANAN, ASST.MANAGER ON DEPUTATION, AIRPORT, KARIPPUR. P5. COPY OF THE -DO- N.K.BABU, SECURITY ASST, INDIAN AIRLINES, KARIPUR. P6. COPY OF THE RECORD OF CROSS-EXAMINATION OF K.K.SHIVAJI, SUPDT. OF CENTRAL EXCISE. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== O.P.No.4781 of 1998 ================== Dated this the 28th day of January, 2008 J U D G M E N T The petitioner is a Head Constable in the Police Department who was on duty at the immigration counter of the Calicut Airport. He is challenging Ext.P1 original order of the Commissioner of Central Excise and Customs, Kochi, by which a penalty of Rs.1 lakh was imposed on the petitioner under Section 112 of the Customs Act, Ext.P2 order of the Commissioner of Central Excise & Customs (Appeals), Kochi, by which, although the penalty was reduced to Rs.25,000/-, the liability of the petitioner for penalty was upheld, and Ext.P3 order by which the Government of India dismissed the revision filed by the petitioner. The factual situation leading to the impugned orders may be summarised as below: 2. On 28.2.1994 at about 9.15 a.m. the 4th respondent detected the presence of black bag on the floor of the air port near the right corner of the immigration counter, from which 84 gold biscuits with an air ticket issued to one Sri.K.Moideen and an Air India boarding pass in the name of the said Sri.Moideen, was o.p.4781/98 2 recovered. One Moideen Kadampadan who was exiting through the exit gate of the Customs Baggage Hall was also apprehended. In the statement of the said Moideen he admitted that he boarded the Flight A1-922 from Dubai with the bag containing the gold biscuits, which was entrusted to him by an unknown person at Dubai Airport with the instruction that he should reach the immigration counter last, leave the bag on the right corner of the immigration counter, get immigration clearance from the police officer sitting on the right side of the immigration counter and present the immigration card returned by the police officer to a person who would identify himself by the code no.346811 outside the airport, with an offer of Rs.25,000/- as remuneration for the work. On the ground that the petitioner was the police officer involved in the plot, proceedings under the Customs Act were initiated against the petitioner along with the said Moideen and others, which resulted in the impugned orders. 3. The petitioner challenges the impugned orders alleging total lack of evidence to connect the petitioner with alleged offence, as also violation of principles of natural justice in not permitting the petitioner to cross examine Sri.Moideen whose o.p.4781/98 3 statement was the only evidence against the petitioner. 4. As far as the violation of the principles of natural justice is concerned, there is no such ground taken in the original petition although the petitioner would try to make out a case based on Ext.P11 revisional order in which there is a reference to such a contention. He would contend that there is a finding in that paragraph that no opportunity to cross examine Sri.Moideen was granted to the petitioner. First of all, such a ground is not seen taken either in the appeal or in this original petition. Secondly, in paragraph 11 there is no finding that chance to cross examine was denied. Paragraph 11 of Ext.P3 reads thus; “11. As regards the revision applicant's plea that cross examination of vital witness, Moideen was not given by the original authority despite written request, the same is not acceptable in as much as in the case of Sukdev Vs. King Emperer [sic] (13 CWN 552) it is held that until an accused person who has pleaded guilty is convicted or acquitted he is still an accused person and is therefore not a competent witness against the coaccused. In the instant case Shri Moideen being a coaccused and his role in smuggling of the gold into the country having been clearly established, there is no merit in the plea. Therein what has been found is not denial of opportunity to cross examine but that the said Moideen being a co-accused his evidence is not relevant. Thirdly, the petitioner has not produced any material before me to prove that such an opportunity was sought for and rejected. For these reasons, I am not inclined to o.p.4781/98 4 entertain this contention, particularly because except in paragraph 11 of Ext.P3, there is no mention of such a contention anywhereelse, not even in the original petition. 5. But paragraph 11 is relevant for appreciating the other contention of total lack of evidence raised by the petitioner, which I shall advert to shortly. There is no direct evidence to connect the petitioner with the smuggling of the gold. Nobody has identified the petitioner as the police officer referred to by Sri.Moideen in his statement. Sri.Moideen has not identified the petitioner as the police officer referred to by him in his statement. As such, no direct link is established between Sri.Moideen and the petitioner in the alleged act of smuggling. There is no reliable evidence to the effect that in the ordinary course, the petitioner would have been on duty at the immigration counter. On the other hand the evidence as disclosed in Ext.P1 order itself suggests that the petitioner was asked to assist one Sri.Reghunath who was new to the job. The only other circumstance, which would have even a semblence of proof is that the petitioner has written the name of Moideen in the immigration card, which the petitioner has explained by stating o.p.4781/98 5 that it was a practice followed by the officers on duty to fill up blank spaces in the immigration card. I am of opinion that at worst the same would only have the effect of creating a suspicion in a reasonable person's mind. 6. True, in such proceedings law requires establishment of only such a degree of probability that a prudent man may on its basis believe in the existence of the fact in issue, for which legal proof may not necessarily be perfect proof, but often is nothing more than a prudent man's estimate as to the probabilities of the case, as observed in Ext.P3 order based on the decision of Collector of Customs v. D.Bhormal [(1986 ELT 1546 (S.C.)]. But mere suspicion cannot be a substitute for even that degree of proof. All what the respondents have in this case as evidence is the statement of a co-accused which does not even name the petitioner or indicate with any amount of certainty that the petitioner is the police officer referred to in that statement. 7. Further, in paragraph 11 of Ext.P3 which is extracted above, the revisional authority finds that the said Moideen is still only an accused person and is therefore, not a competent witness o.p.4781/98 6 against a co-accused, apparently referring to the petitioner. It is beyond comprehension as to how the statement of Sri.Moideen could have been relied on to find the petitioner guilty if he is not a competent witness against the petitioner, and the only evidence against the petitioner is the statement of Sri.Moideen. 8. Therefore, I am of opinion that the evidence referred to in the impugned orders can at best create only a vague suspicion in the mind of a reasonable person against the petitioner, which cannot be a substitute for any degree of proof to find the petitioner guilty even applying the standard of a prudent man's satisfaction. Therefore, I am of opinion that this is a case of total lack of evidence to find the petitioner guilty of the offences alleged against him and with the material discussed in the impugned orders, the petitioner could not have been found guilty. Accordingly, I set aside the impugned orders and allow this original petition. If the penalty has already been realised from the petitioner, it shall be refunded to him. Sd/- sdk+ S.SIRI JAGAN, JUDGE o.p.4781/98 7 S.SIRI JAGAN, J. ================ O.P.No.4781 of 1998-T ================ J U D G M E N T 25th January, 2008