Page 270 - ELT_1st September 2020_Vol 373_Part 5

708 EXCISE LAW TIMES [ Vol. 373

9. Further, evidence in the form of statements of the co-accused name-
ly, Mr. Francis, Mr. Karunanithi and Mr. Shahul Hameed, are not available be-
fore us and therefore, in the absence, we are unable to judge as to its contents,
veracity and its incriminatory nature. All the accused including the appellant
were produced before the Learned Magistrate along with remand application on
13-4-2015 before whom the accused have stated that their statements were ob-
tained by threat and coercion. The relevant portion of the recording of the
Learned Magistrate reads as under :
“A1 to A4 - are produced before me at my residence. Grounds of arrest is
revealed to the Ad. Ad. have stated that their statements are obtained by
threat and coercion...”
Though there is mention about threat and coercion, there is no specific denial as
to their involvement since the Learned Magistrate has categorically recorded as
to the revealing of the grounds of arrest which would only mean and which is
relevant for our limited purposes, is that only the statements were obtained by
using threat and coercion.
10. In the Order-in-Original, the Adjudicating Authority has, no doubt,
explained very succinctly the modus operandi of the main accused and the in-
volvement to some extent of Mr. Francis and Mr. Karunanithi, from where the
role of the appellant kicks in, and as the Adjudicating Authority has extracted,
both appear to have stated that the appellant knew about the gold smuggling.
Their statements assume relevance since both of them have inter alia stated that
they are working in the appellant’s service agency which fact has not been de-
nied.
11.1 Now, the appellant’s explanation regarding the call records cou-
pled with the extracts of statements of persons apprehended on the early hours
of the eventful day lead us to understand that considering the gravity and nature
of the offence/activity alleged, the explanation offered in the form of reply is not
at all sufficient to conclude as to the innocence of this appellant, as pleaded. This
assumes relevance in this case because the accused/appellant is a retired military
personnel who has served the nation and has pleaded that he was not even
aware of what his own employees were doing, while working for him.
11.2 Further, a close look at the call records inter se the appellant, Mr.
Khaja and Mr. Mathiarasu reveals that right from the beginning of March, 2015
all these persons were in touch. There has been call records of Mr. Khaja and the
appellant on 4-3-2015 for about 93 seconds, again on 9-3-2015 for about 65 se-
conds with Mr. Khaja, also simultaneously with Mr. Mathiarasu. There have
been further calls between the appellant and Mr. Khaja with a duration of 302
seconds on 11-3-2015, again on 10-3-2015 for about 4803 seconds and 32533 se-
conds at 11:13 a.m. and 12:59 p.m. and further calls again at 16:30 p.m. and 16:35
p.m. for 9812 seconds and 55441 seconds, for which there is no explanation. Con-
sidering these calls on record, the appellant cannot wash off his responsibility
with a total denial that he did not know Mr. Khaja at all and that there was only
a wrong call for about 6 seconds, etc. There has been some calls as well on 10-3-
2015 between Mr. Khaja and the appellant, the appellant and Mr. Mathiarasu and
again, the appellant and Mr. Khaja, which clearly leads to suspicion for which
the appellant could only answer.
12. On an overall analysis, we are of the prima facie view that the Reve-
nue has made out a case by linking the chain of events, phone calls, etc., towards

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