Uncorroborated accomplice statements and suspicion cannot sustain personal penalty under Section 112(a) of the Customs Act.

Gold allegedly smuggled into India by passengers arriving on SpiceJet Flight No. SG 52 from Dubai was recovered from the gents’ toilet at Pune International Airport on 16 August 2018, following intelligence received by the DRI Customs.

The Department alleged that Rajendra Bane, then a Customs Hawaldar and subsequently deceased, had aided and abetted the smuggling operation despite being on sanctioned leave and present at his native place near Ratnagiri.

The case against him was based principally on statements recorded under Section 108 of the Customs Act, 1962, call-detail records, statements of alleged co-accused/accomplices, and the recovery of gold from the airport toilet and from a passenger.

Rajendra Bane contended that he had himself informed Superintendent D.G. Nandanwar about the presence of the smuggled gold, and that the information was received from an informer whose identity was privileged.

The adjudicating authority imposed personal penalties under Section 112(a) of the Customs Act, and the Commissioner (Appeals) upheld the penalties of ₹2,50,000 and ₹1,00,000 respectively.

After Rajendra Bane’s death, his widow, Ranjita Rajendra Bane, pursued the appeal as his successor in interest.

Whether the deceased Customs Hawaldar could be held liable to personal penalty under Section 112(a) of the Customs Act, 1962 solely or principally on the basis of statements of co-accused/accomplices, call records, and circumstantial evidence, in the absence of any incriminating recovery from him?

Whether the telephone call made by the deceased to the Superintendent of Customs, informing him about the concealed gold, was an afterthought intended to camouflage his involvement, or credible conduct consistent with his defence as an informer?

Whether the alleged use of another person’s mobile number in the vicinity of the deceased’s native village, without seizure or documentary proof connecting the number to him, established his participation in the smuggling activity?

The Tribunal applied Section 112(a) of the Customs Act, 1962, which permits imposition of penalty on a person who, by an act or omission, renders goods liable to confiscation or abets such conduct.

It considered Section 108 statements as material evidence and referred to Naresh J. Sukhwani v. Union of India, 1996 (83) E.L.T. 258 (S.C.), which recognises that a statement recorded under Section 108 is not a statement under Section 161 of the Code of Criminal Procedure and may be used as substantive evidence against its maker or a person implicated therein.

However, the Tribunal held that, where reliance is placed on the statement of an accomplice or co-accused, such evidence must be corroborated in material particulars, consistent with Section 114, Illustration (b), of the Evidence Act as referred to in the judgment.

It further applied the settled principle that strong suspicion cannot substitute proof.

The Tribunal found that the Commissioner (Appeals) had treated the co-accused statements, call records, and recovery of gold as sufficient proof, but failed to account for the absence of any incriminating article, SIM card, or other material seized from Rajendra Bane.

In the Tribunal’s view, Naresh J. Sukhwani arose in a materially different factual context and did not justify implicating the deceased solely on uncorroborated statements of accomplices.

The evidence instead showed that the Superintendent had called the deceased back and that the deceased informed him about gold concealed in the airport toilet; call records also indicated calls before the seizure, which supported, rather than necessarily contradicted, the defence version.

The Tribunal rejected the inference that the call was an afterthought, observing that the Department had not investigated whether the deceased had attempted to contact other officers and that, as a Hawaldar, he might reasonably have approached the Superintendent rather than bypassing his immediate hierarchy.

Similarly, the alleged use of a mobile number belonging to another person was based only on tower-location evidence near the deceased’s village and did not establish that the deceased possessed or used that number.

The evidence therefore raised suspicion but did not sufficiently prove that he had aided or abetted the smuggling under Section 112(a).

It held that the deceased could not be subjected to personal penalty under Section 112(a) merely on the basis of uncorroborated co-accused statements, inconclusive call records, and unsupported presumptions, particularly when no incriminating material was recovered from him.

The appeal filed by Ranjita Rajendra Bane was allowed, the Commissioner (Appeals)’s Order-in-Appeal dated 28 October 2021 was set aside, and all consequential relief was granted.