Defense by Noticees in a Seizure Case of Gold- Collusion Example

Defense by Noticees involving ‘Questions of Law’ apart from ‘attempts to repudiate the facts’ always fascinates the officers in Law Enforcement and especially when there is larger design of collusion employing innovative modus operandi. Lets read on an example:

Mr. Suren Singh, Mr. Viren Singh and Mr. Dhiren Singh are caught in transit toilet with more than 6+ Kg of Crude Gold jewellery. Interception and recovery from all three were result of follow up of one Mr. Mukesh Singh who landed from Bangkok. During recovery all the four were present in Toilet. Recording of their individual statement and later confrontational statement revealed that Suren Singh, Mr. Viren Singh and Mr. Dhiren Singh had come to Mumbai from Delhi just to receive the gold and go back to Delhi.

The passing on of gold to domestic passengers was planned to evade the Customs detection. Further investigation revealed that funding of all these activities was done by one Mr. Dildar Singh who in turn worked for one Mr. Naren Singh owning multiple companies. Mr. Dildar Singh and Mr. Naren Singh never turned up to summons. It was also gathered that Naren Singh was a man of political affiliations. The investigation against Mr. Dildar Singh and Mr. Naren Singh was kept open while the four: Mr. Mukesh Singh, Mr. Suren Singh, Mr. Viren Singh and Mr. Dhiren Singh were made noticee in the SCN.

Below are the sample Contentions/Defense submitted by the Noticees in Brief. Most of the Concerns of Noticees are addressed on a dedicated post.

It is a Case of Fabricated Smuggling

I. That he is a victim in a case of smuggling fabricated against him by the Officers of Customs, AIU, CSI Airport, Mumbai. He is going to be penalised not only on the basis of the false proceedings of the panchanama dated 6-10-18 and twists and fabrications the Officers applied in the case while recording his statement dated 7-10-18. He has retracted the panchnama dated 6-10-18 and his statement dated 7-10-18.

II. That during the examination of the hand bag carried by Mr. Mukesh Singh, the Officers recovered the 3 paper packets containing the gold jewellery. The Officers opened and checked each packet and found jewellery in each packet. Then in an illegal manner, they randomly handed over the said jewellery to Mr. Suren Singh, Mr. Viren Singh and Mr. Dhiren Singh and forced them to wear some of the chains and kadas and also forced them to keep some of the jewellery in their hand bag/trolley bags carried by them. The Customs Officers threw away the empty paper packets in the dust bin in the toilet. The panchas were called then to the general toilet and rest of the things what were recorded in the panchnama dated 6-10-18 and confrontation panchnama dated 7-10-18 were stories cooked up by the Officers. The panchnama dated 6-10-18 and confrontation panchanama dated 7-10-18 were then drawn with fabricated facts.

Statements Recorded Under Coercion Inadmissible

III. He was forced to give statement to suit the story of Customs. He was pressurized and beaten up to give confessions and recorded statement of the nature the Officers liked to record. He was arrested in the fabricated case of smuggling of 6545 grams of gold and remanded to judicial custody.

Role of CISF Doubtful and Breach of Jurisdiction

IV. There was no transparency in the investigation of the case. Seizure panchnama dated 6-10-18 is suspicious. The Officer who drew the panchnama did not mention the name of the CISF personnel who informed the ACS, AIU ‘D’ Batch about noticee Mr Mukesh Singh who was suspected to be carrying some contraband items in his black colored pouch. This clearly shows that the CISF personnel opened and checked the black colored pouch carried by Mr Mukesh Singh. The signature of the said CISF personnel was not obtained in the seizure panchnama. Statement of the said CISF personnel, as a witness, was not recorded by the Investigating Officer.

Indiscriminate Search Without Reasonable Belief is Unlawful

V. The Officers were only on a Fishing Expedition and the noticee was a victim: In the instant case there was absence of specific information leading to a reasonable belief that a specific type of violation has been committed. In the Customs Act, for example, there is provision under Sections 110 and 123 that the proper officer has reasonable belief before seizure of goods and the same is also true for search of premises as required under Sections 105 and 106 of the Act. The provisions of reasonable belief has been violated as the names of a few suspected international transit passengers were shortlisted to be followed and accordingly those names were provided to the CISF for checking at the time of security check with fishing intention that some or other person might be apprehended out of whole lot of commuters much like fishing in a pond. That indiscriminate search of the passengers is illegal.

The Manner of Drawing Panchanama Unlawful

VI. Seizure panchanama dated 6-10-18and confrontation panchanama dated 7-10-18 drawn in English in a computer are invalid: Sec 100 (4) to (8) of Cr PC stipulates the procedure with regard to search in presence of two or more respectable and independent persons preferably from the same locality. The legal mandate of the law has not been observed. Further, unless the panchas insist for drawing the panchanama in English by showing the cause that they do not know any language other than English, panchanama is not to be drawn in English. Normally a panchnama is to be drawn by any one of the panchas in his own handwriting in first person. It is seen from the record of the panchanama that the said panchanama dated 6-10-18was not read over and explained to the panchas and passengers in their vernacular.

Must Check: Addressing Noticee’s Concerns- Counter to Defense in Response to SCN

Evidence of Panchas is Hearsay in Nature

VII. Hearsay evidence is inadmissible:It may be seen from the seizure panchnama dated 6-10-18 that the panchas who witnessed the search and seizure proceeding on 6-10-18 were called only after the interception of the noticee passengers in the family toilet of the general toilet. Therefore, whatever facts as recorded in the panchnama, before calling the panchas, were only hearsay for the Panchas. Identification of the passenger Mr. Mukesh Singh by CISF personnel is a hearsay else, he would have been made a witness to the seizure.

Panchas Were Tutored in Drawing The Panchanama

VIII. Panchas were tutored in drawing the panchanama dated 06.10.2018. It is to be appreciated that a panchnama proceeding is nothing but narration of the proceedings i.e. searches, movements of officers and the panchas in the words of Panchas. True observation of panch witnesses and what is heard by them, those things incorporated in the panchanama at the first person as if it were written by the panchas. The principle has not been observed.

IX. Manipulations done in the panchnama dated 6-10-18 during investigation do lead to an inference that the investigating officials have not come with clean hands before the Adjudicating Authority and therefore the evidence produced by them on record should not be accepted as credible and trustworthy and the noticees are to be given benefit of doubt.

Copies of The Panchanamas Not Provided

X. Copies of the panchanamas were not given to the passenger noticee after completion of the panchanama proceedings on 6-10-18/7-10-18 which caused prejudice to the noticee. The case against the noticee is therefore vitiated. As per Sub-section (7) of Section 100 of Cr. P. C., when any person is searched under sub-section (3), a list of all things taken possession of shall be prepared, and a copy thereof shall be delivered to such person. In this connection, reference is also invited to the guidelines prescribed/issued by CBEC to be followed while drawing the panchanama, under Ministry’s letter No. 394/226/98-Cus (AS) dt.30.8.1999.

Facts Recorded In The Seizure Panchnama Vague

XI. Facts recorded in the seizure panchnama dated 6-10-18 are vague: There were only 23 items of jewellery (11 chains, 5 kadas and 7 pendants) which were allegedly seized from 3 domestic passengers. However, the panchnama failed to specifically mention as to what were the jewellery which were found on the persons of the individual noticee passengers and what were the jewellery which were found in each of their baggage. Thus, the Panchnama suffers from extreme vagueness. The panch witnesses having used very vague words like “on their person or in their baggage”, is not sufficient to prove that the gold jewellery was found in possession of the domestic passengers viz., Mr Suren Singh, Mr Dhiren Singh and Mr Viren Singh. Since the panchanama did not reflect the facts properly it cannot be relied upon against the noticees. This vagueness in the seizure panchanama is sufficient to vitiate it, and this inherent infirmity in the panchanama makes it invalid.

Statements Recorded at Odd Hours Cannot be Voluntary

XII. Statements recorded at odd hours cannot be relied upon: The noticee submits that they were all apprehended by the Customs Officers around 19.30 hrs on 6-10-18. The seizure panchanama dated 6-10-18 was completed at 23.45 hrs on 6-10-18. They were issued summons and their statements were recorded after 00.30 hrs on 7-10-18. So, the statements of the noticees were recorded under section 108 of the Act at odd hours. The noticees had no rest the whole day on 6-10-18 and no sleep during the entire night on 6-10-18. The person may not be in a position to make any correct or conscious disclosure in a statement if such statement is recorded at such odd hours. Statements recorded at such odd hours cannot be considered to be voluntary statements.

Statement Recorded Is Involuntary Contravening Evidence Act

XIII. The noticee’s statement dated 6/7-10-18is involuntary and against truth and it cannot be relied upon. His statement dated 6-10-18 was recorded by the Officers under coercion and threat to suit their story for booking a false case against him. In his statement dated 6-10-18, he was forced to admit that he handed over the jewellery to the 3 domestic passengers for the purpose of smuggling into India. The ‘rule against involuntary confessions’ as embodied in Sections 24, 25, 26 and 27 of the Evidence Act, 1872 seeks to serve the objectives of reliability as well as voluntariness of testimony given in a custodial setting. The confessional statements of the noticee in the present case are inconsistent with the right against self-incrimination which is an essential safeguard, both under the Constitution of India and Cr P.C. Except for the involuntary statement of the noticee there is no other corroborative evidence to prove the allegations.

Benefit Of Doubt Should Be Given To Accused

XIV. Confrontation panchanama was fabricated. There is contradiction and inconsistency with regard to the place of commission of the offense. There was no application of mind in drawing the confrontation panchnama dated 7-10-18. The confrontation panchnama cannot be relied upon. As per the seizure-cum valuation panchnama dated 6-10-18, the passengers were intercepted in the family toilet of general toilet near gate no 67 and the gold was allegedly seized from the domestic passengers. However, in the confrontation panchnama dated 7-10-18, it was recorded that the noticees identified and recognized each other and admitted change of hands of the jewellery in a toilet near gate no 66. According to the seizure panchanama dated 6-10-18 and as per the allegations made in the impugned SCN dated 4-4-19, the place of occurrence alleging commission of the offence of attempt of smuggling was the family toilet in the general toilet near gate no 67. The panchas were not shown where the said toilet was located. No site plan was prepared and annexed to the panchanama to show the place/location from where the noticee passengers were/was intercepted. In such circumstances, it cannot be cogently said that noticees were intercepted while they were all inside the family toilet of general toilet. Therefore, benefit of doubt should be given to accused if, such details are missing.

XV. Statements of the noticees are contradictory to the facts recorded in the panchanama. Investigation in the present case is haphazard. Case against the noticee is not proved. The seizure panchanama dated 6-10-18 is silent about the three packets in which the gold was packed. The said packets were not seized by the Investigating Officer. Thus, it was not clearly established as to who received the bag/pouch containing the gold from Mr Mukesh Singh and who distributed the gold among the 3 domestic passengers. With all these contradictions in the panchanamas and statements, the alleged offense that Mr Mukesh Singh handed over the gold to the domestic passengers inside the family toilet of general toilet cannot be considered to have been proved. The conduct of the Investigating Agency does not inspire any confidence since there were material contradictions and omissions in its version.

Retracted Statement Not to be Relied Upon, Corroboration Required

XVI. Retracted statement of the noticee dated 6-10-18 in the absence of any corroborative evidence from an independent source outside the confession cannot be relied upon in the present case. The noticee submits that each and every incriminating circumstance must be clearly established by reliable and clinching evidence from which the only irresistible conclusion about the guilt of the accused is safely drawn and no other hypothesis is used which is not the case here.

Incriminating Statement at Later Stage Barred By Art 20(3)

XVII. Further statements of the noticee incriminating him in the offence of smuggling cannot be relied upon. Noticee Mr Mukesh Singh and other three were arrested on 7-10-18 and remanded to judicial custody. He was later released on bail. His further statements were recorded on 19-10-18 and 12-11-18. The said statements dated were relied upon in the case against him. The noticee contends that the said further statements cannot be relied upon in the case against him for the following reasons.

1.When his initial statement was recorded on 6/7-10-18 u/s 108 of Customs Act, 1962 his position in this case was a witness. He was arrested on 7-10-18 after recording his statement and later released on bail by the Court. On his arrest, his position changed and he was made to stand as an accused in the case.

2.When he stood as an accused of an offence in this case, prohibition of Art.20 (3) comes into operation and his correct position with respect to the guarantee under Art. 20(3) is that-

(i) the guarantee includes not only oral testimony given in court or out of court but also, the statements in writing which incriminate the maker when figuring as an accused person;

(ii) the words “to be a witness” in Art. 20 (3) do not include the giving an incriminating statement.

(iii) “self-incrimination” means conveying information based upon the personal knowledge of the given and does not include the mere mechanical process of producing documents in court which do not contain’ any statement of the accused based on his personal knowledge;

(iv) in order to come within the prohibition of Art. 20(3) the testimony must be of such a character that by itself it should have the tendency to incriminate the accused; and

(v) to avail of the protection of Art. 20(3) the person must have stood in the character of an accused person at the time he made the statement.

Stereotyped Statements of Cannot be Relied Upon

XVIII. Stereotyped statements of the noticees cannot be relied upon: It may be seen that the statements of the noticees viz. Mr Mukesh Singh, Mr. Suren Singh, Mr. Dhiren Singh and Mr. Viren Singh were stereotyped which proves that the statements were dictated by the Officers and not given voluntarily by the noticees. The statements of the noticees are identically worded and stereotyped which are not their statements but prepared by the Customs Officers characterising them as `manufactured evidence’ and as such no reliance should be placed on the said noticees.

Confession of Co-accused Cannot be Relied Upon Against Other Accused

XIX. Confession of Co-accused cannot be relied upon against other accused: The impugned SCN relied upon the statements of co-noticees Mr Suren Singh, Mr Dhiren Singh and Mr Viren Singh for establishing the allegations against the noticee Mr Mukesh Singh. In the impugned SCN it was alleged that Mr Mukesh Singh attempted to smuggle the gold into India in collusion with Mr Suren Singh, Mr Dhiren Singh and Mr Viren Singh. The confession of the co-accused can be used only in support of other evidence and cannot be made the foundation of a conviction. If the statement of a co-accused tries to exculpate any accused, the same is not relevant as per the provisions of the Evidence Act.

Financial capacity cannot be a Ground for Being Carrier

XX. Financial capacity cannot be a factor to prove the allegation as carrier: The investigating authorities have raised wrong presumptions and assumptions against the noticee and, therefore, cannot stand the test of law. Surmises and conjectures as raised by the authorities based on financial capacity cannot take place of any legal proof.

Case on Same Facts & Evidences Cannot be Bifurcated for Separate Proceedings

XXI. Investigation of a single case of smuggling with common facts on the same evidence in the same acts or transactions cannot be bifurcated against a particular accused for the purpose of further investigation and separate adjudication proceeding against the said accused Mr Dildar Singh is alleged to have played a key role in the smuggling. Fresh/further investigation if any to be carried out after issuance of SCN dated 4-4-19 is illegal. The legislative expectation was that the investigation would ordinarily be completed within the prescribed time limit against all accused as the alleged offence arose out of the same set of facts. Incidentally, this legislative expectation continued till 3-4-19, after which the impugned SCN was issued.

No Proof For the Collusion Established

XXII. There is no proof for the collusion/conspiracy alleged against the notice and he was not a carrier in the case. The allegations made in the SCN are based merely on uncorroborated and unsupported statement of the noticee and co-noticees, which cannot be any basis to sustain the allegation that the noticee acted as a carrier of the gold for monetary consideration.

XXIII. The Noticee Mr Mukesh Singh was not a carrier in the case. The Investigating Agency failed to take sincere efforts to trace out, question/examine Mr Dildar Singh. The Investigating agency, instead of making Mr Dildar Singh an accused in the present case, the investigation against him was kept in abeyance. If Mr. Mukesh Singh is to be penalised as a carrier, then the nexus between him and Mr Dildar Singh should have been established. The Investigating Agency was in a hurry to hush up the case in violation of the principles of fair investigation.

Pre-Determined SCN is Illegal

XXIV. The show cause notice dated 4-4-19 prejudged the entire issue and thus prejudiced the notice. The show cause notice has pre-judged and pre-determined the entire issue and left nothing for the Adjudicating Authority to enquire into. In the present case, the opportunity of submitting defence reply to the Show Cause Notice and hearing has become an idle formality and farce. The Show Cause Notice dated 31-12-18 is therefore liable to be set aside. The noticee submits that the authority who issued the SCN has already made up his mind that the gold under seizure is liable for absolute confiscation and the petitioner is liable for exemplary punishment for the alleged acts of omission and commission.

Cross-Examination Is A Legal Right Of Accused

XXV. The noticee seeks cross-examination of the panchas and the investigating officers to prove that the case against him was fabricated. The provisions of Section 122 A of Customs Act, 1962, which mandate a grant of reasonable opportunity of being heard before adjudicating a case, encapsulate within it, the right to cross-examine any person on whose testimony/statement reliance is sought to be placed by the Department/complainant. Further, the provisions of the Indian Evidence Act, 1872are also applicable to the adjudication proceedings and therefore the right to cross-examination also stands included in the adjudication proceeding. Cross-examination is one part of the principles of natural justice.

Gold is Eligible For Redemption; it is not Prohibited

XXVI. Gold is not a prohibited item and that Gold is not liable for absolute confiscation. Section 11 of the 1962 Act empowers the Central Government to prohibit importation and exportation of goods. The relevant provision in the context of prohibited goods is Section 11 of Customs Act and it is not the case of the Department that gold has been notified as prohibited goods either absolutely or subject to some conditions. No other legal provision is also mentioned in the present case by which import of gold has been prohibited. Even Baggage Rules do not prohibit the importation of gold. Gold is not a prohibited item. It is only a restricted item. Para 2.07, 9.41 and 9.47 of the foreign Trade Policy makes clear distinction between restricted and prohibited items for export/import. From the perusal of Section 125(1), it is clear that the adjudicating officer has the discretion to give an option of redemption fine in case of prohibited goods but for other goods, it is mandatory to give the option of redemption of the goods on payment of fine.

XXVII. The noticee claims ownership of the gold and redemption of the gold under seizure for re-export. He was intercepted alongwith co-noticees when he met them by chance in the family toilet of general toilet. The gold carried by the noticee was seized by the officers in a misconstrued belief that the gold was attempted to be smuggled into India.

XXVIII. Final submission of the notice is that a complete appreciation of vital aspects of the case, the evidence on record and relied upon case laws in support of each contention be carefully done while adjudicating the case. The noticee prays that the gold under seizure may be released to him unconditionally for re-export and further proceedings against him may be dropped.

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