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23 years later, Alemaos not guilty of gold smuggling: HC sets aside Customs orders

Story: GERARD DE SOUZA | 12th October 2017, 02:45 Hrs


PANAJI: The Bombay High Court at Goa has quashed and set aside an order of the Collector of Customs which had back in 1994, found several persons including Churchill Alemão, his brothers Joaquim and Ciabro and several others guilty of smuggling.
The order of the Customs, Excise & Service Tax Appellate Tribunal (CESTAT) passed on December 13, 2004 which upheld the original order finding them guilty and directing them to pay a penalty has also been quashed and set aside. Both orders were challenged by the Alemaos in the HC.
On October 14, 1994 Collector of Customs issued an order holding the Alemao brothers besides one Anthony Rodrigues and Subhash Pandey, guilty of smuggling gold and imposed fines of Rs15 lakhs on Ciabro; Rs 30 lakhs on Joaquim; Rs 50 lakhs on Churchill; Rs 1 lakh each on Roy Miranda and Anthony Fernandes; Rs 50,000 on Anthony Rodrigues; and Rs 5 lakhs on Subhash Pandey. The Collector also ordered the confiscation of the Contessa, the Maruti and the Scooter involved in the infamous Varca smuggling case which resulted in the death of one of the Alemao brothers Alvernaz.
The case dates back to the summer of 1991 in which, one Costao Fernandes, an Intelligence Officer attached to the Rummaging and Intelligence Wing of the Customs House at Mormugao, is said to have received credible information that the Alemao brothers, including Churchill, and their associates were likely to smuggle into the country a huge quantity of gold. Fernandes' information was that this contraband would likely be unloaded at Varca Beach at some time in the month of May 1991.
On the fateful morning of 16 May 1991 at about 11 am, Costao received a tip-off at his residence of some suspicious activities involving the Alemaes at the Fatrade/Varca Holiday Beach Resort site.
Fernandes claims he saw Ciabro Alemão and two ‘canoes' with outboard motors approaching Carmona Beach from the high seas. They were offloading boxes that looked like heavy-duty vehicle batteries from the canoes. Fernandes recognized Alvernaz Alemao driving the Contessa. Four of the five battery boxes were placed in that car's boot. The fifth went into the blue Maruti. Once all the boxes were loaded, Alvernaz drove off in the Contessa.
Fernandes gave chase on his motorcycle, careening down the narrow village roads in pursuit. Fernandes sped past the car, swerved in front of it, and tried to block it. He called out to Alvernaz, who, recognizing Fernandes, accelerated and tried to run him over.
Fernandes opened the car door and prevented Alvernaz from driving away. Fernandes said later that Alvernaz admitted there was contraband gold in the boot. He tried to bribe Fernandes with Rs 20 lakh and a share of the booty. There was a scuffle and a knife-fight. Alvernaz was grievously wounded. Fernandes then claims to have opened the boot of the Contessa. After rummaging through the boxes, he claims to have removed what was, in his opinion, a gold biscuit or bar. He claims he displayed it to the public that had by then gathered around the vehicle. He declared it to be smuggled gold. Fernandes said he was refused assistance by the locals in safeguarding the contraband. He saw a motorcycle approaching. Fearing this to be an Alemao accomplice, he fled the scene after deflating two of the Contessa's tyres. He left Alvernaz, wounded and bleeding, and the contraband unguarded.
The Customs staff rushed to Varca at around 1:45 pm, to find the Contessa parked off the road at Gunneavaddo. There was no one in the car. There was nothing in the boot, which had been left open.
The case fell apart primarily on grounds that the alleged contraband was never recovered and hence it its alleged value could not be estimated to impose a penalty besides the fact that the witnesses were either unavailable or turned hostile.
"The value is determined at the offer or price of sale of the goods ordinarily at the time of export or import. This would, therefore, require measuring the goods, and an assessment of the quantity and quality based on specific metrics. This must apply to confiscation and penalty too. The value, quantity and quality are not matters to be assumed. They are matters of proof in accordance with the statute. Here, the authorities have only assumed that the gold weighed 250 kgs and was of the value of Rs 8 crores. The only basis of this is Fernandes' statement... he estimated its value, purity, weight, and that of the whole cargo. Fernandes also accepted that the presence of gold in the other boxes was unascertainable as he did not open these. He extended his assumption to all boxes. There is no valuation report. There is no chemical or other analysis. All we have is Fernandes' statement. That is all. That is, indeed, the whole of it. Testing gold is a science. It demands a laboratory test and a professional appraisal," the court said in its findings.
"Vincy, Baptista and Sebastiao are the witnesses to whose evidence we must turn, since this is pivotal to the substantial question of law. They claimed that Joaquim broke open the boot of the Contessa and took out the battery-type boxes. They were not produced for cross-examination citing their unavailability. Then John Rebello completely retracted his statement: he denied ever having carried the identified contraband, or being threatened by Roy Miranda or Gongrette. The entire case thus rests on the Fernandes' wholly uncorroborated testimony," the court observed in upholding the petition filed by the Alemaes.

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FLASHBACK

 

OCTOBER 14, 1994
Collector of Customs holds Alemao brothers besides one Anthony Rodrigues and Subhash Pandey, guilty of smuggling gold
DECEMBER 13, 2004
Customs, Excise & Service Tax Appellate Tribunal upholds the original order finding them guilty and directing them to pay a penalty
ALEMAOS FIGHT BACK
The Alemao brothers challenge the orders of the Customs Collector and Service Tax Appellate Tribunal in the High Court
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WHY THE CASE
FELL APART
Primarily on grounds that the alleged contraband was never recovered and hence it its alleged value could not be estimated to impose a penalty besides the fact that the witnesses were either unavailable or turned hostile
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