TMI Blog1986 (10) TMI 192X X X X Extracts X X X X X X X X Extracts X X X X ..... aw a truck coming without light. He ordered the truck to stop. On questioning the driver of the truck, he revealed that the truck belonged to Appellant J.L. Sharma and the truck was being taken to Ahmedabad after unloading the goods at Harji. Among other things the driver informed that his master had instructed that he should take the truck to Ahmedabad and halt it at Panchkuva and if any person comes to him with his chit the truck should be given to that person. Accordingly he halted his truck at Panchkuva on 29-1-1969. At about 4.00 or 4.30 P.M. a person came to him with a chit bearing the truck number and the endorsement of his master. He, therefore, handed over the truck to that person who has given his name as Karimbhai having a shop in Crawford Market at Bombay. The driver further stated that on the same date at about 8.00 P.M. Karimbhai brought back a loaded truck and asked him to follow a white Ambassador Car and accordingly he followed the Ambassador Car. At Hareja naka he was instructed to go ahead on the National Highway upto Baroda and from Baroda the truck should be driven via Rajapeepla Road upto Ankleshwar and from Ankleshwar the truck should be again taken on the Na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Wadi of Bhanabhai. On the way near the Wadi he and others saw one jeep coming towards them from Moti Daman. Shri Mahida stopped the jeep, one person Abubakar was driving the jeep. Thereafter Shri Mahida and others proceeded to the Wadi and the driver of the truck who was with them showed them the place where the silver was unloaded. They found a person sleeping at that place, but that person ran away on seeing them. They also noticed another truck with dim light halted at a distance of 100 yards and in that truck they found a person by name Shankar Hari who was the brother-in-law of the Appellant Shri Banabhai Khalpabhai Patel. Thereafter they found the earth freshen and unturned near the well. Therefore they digged that spot and found 101 slabs of silver valued at Rs. 18,08,850/-. They seized the silver under the panchanama. It appears the seizure was first effected by the police. Thereafter the Customs Superintendent Shri Mahida seized the said 101 slabs of silver. The police panchanama was dated 31-1-1969 and the customs panchanama was dated 1-2-1969. One of the panch witnesses, namely, Shri Nagindas Chhabildas Chokshi was a common panch. (c) The Customs Superintendent S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enied that Wadi belonged to him. (g) In his statement Shri Mohmed Hussein Abdulkarim among other things stated that the truck MRT 2751 was registered in his name by one Abdul Rashid Abdul Majid, but he did not know from whom the truck was purchased and for how much it was purchased. Shri Rashid learnt that the truck was to be sent to Shri Bhana Khalpa for loading and unloading of smuggled goods. He also stated that Bhana Khalpa was loading the silver and unloading gold and textiles. He further stated that he had no specific knowledge about the truck or as to why it was utilised for the purpose of loading and unloading of smuggled goods. (h) After the completion of the investigation, show cause notices were issued to the present Appellants and four others alleging that the silver seized are prohibited goods and if they are to be exported out of India without a licence it would be a violation of Imports and Exports (Control) Order as well as Foreign Exchange Regulation Act. It was further alleged in the show cause notice that the place of seizure is a place situated within 50 kms. from the coast of India and that silver was transported within specified area without transp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner. If the driver had unauthorisedly used the vehicle in the carriage of silver, even assuming that silver was a smuggled item the vehicle cannot be ordered to be confiscated. Since the owner had neither knowledge of or connived in the carriage of the smuggled goods. There was clear instructions to the driver not to carry any smuggled goods. Therefore the reasonable precautions were taken by the owner and as such the confiscation of the truck under Section 115(2) particularly in the absence of any rule made thereunder was totally unjustified. Shri Madhu Patel further urged that the seizure took place on 31-1-1969 but the show cause notice was issued on 20-1-1970 after a period of six months and therefore the seized goods should have been returned and no action can be taken to confiscate the seized goods which are required under law to be returned for not issuing of the show cause notice within a period of six months as required under Section 110 of the Customs Act. In support of his contention Shri Madhu Patel relied upon the following decisions :- (i) 1982 E.L.T. 273 (Bom.) (ii) 1982 E.L.T. page 902 (Cal.) (iii) AIR 1975 Calcutta page 368. (iv) AIR 1985 (22) E.L.T. page 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... artment number of silver slabs recovered were 101 but the truck in question was stated to have transported only 20 slabs. No investigation was carried out as to who brought the remaining 81 bars seized in the case. The appellant was implicated solely on the ground that the wadi belonged to him. But then the appellant was not the owner of the wadi. It stood in the joint names of his wife and others. Shri Pochkhanwala further submitted -that there was no evidence whatsoever that the appellant transported the silver bars or attempted to export them. Thus the appellant committed no offence. In the circumstances no penalty could be imposed on the appellant. It was also contended by Shri Pochkhanwala that the proceedings before the customs authorities is a quasi-criminal and the appellant had a right to cross-examination of witnesses but such a right has been denied and therefore there had been denial of principles of natural justice and as such the order passed by the Collector is illegal. It was also submitted by Shri Pochkhanwala that nexus between the appellant B.K. Patel and the seized silver had not been established. There was not even an iota of evidence to establish that the silv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gal. 9. Before I proceed to consider the points set out above, let me proceed to consider the orders passed by the Collector as well as by the Board. Under the heading findings the Collector has discussed the liability of the two appellants for penalty under Section 114. The Collector has observed that the evidence of the driver, Benichand clearly establishes that Shri B.K. Patel was acquainted with J.L. Sharma, the employer of the driver. Further according to the driver s statement his master had instructed him to halt the said truck at Panchkuva at Ahmedabad and that the truck should be given to the bearer of the chit and the truck was in fact given to the bearer who produced the chit bearing the signature of Sharma. Further the two bills seized contains the address of Karimbhai, Crawford Market and the driver s evidence that it was Karimbhai who produced the chit and took the truck and brought back loaded with silver and berries. Further Shri B.K. Patel in his statement dated 16-5-1969 admitted that one white Ambassador Car was lying in his wadi. He had further admitted that he bought this car from Bombay from one Karimbhai. Shri Benichand the driver in his statement has giv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bhai did not implicate B.K. Patel. He also did not state that he took the truck producing the chit and got loaded with silver slabs. The other witness from whose statement the Collector relied also did not state that the silver slabs were got transported by the appellant B.K. Patel. No investigation was made wherefrom the remaining 81 slabs were brought or who brought them or when they were brought. All that the Department was able to establish was that 101 slabs were found in the wadi which according to the Department belonged to. the appellant though the appellant contended that it was the wadi of his wife and some others. Even assuming that slabs were found in the wadi of the appellant, that by itself would not be sufficient to prove that they were transported to the wadi by the appellant in violations of provisions of Section 11K of the Act. Therefore that part of the finding of the Collector is based more on assumption than on evidence. Similarly, the Collector s finding that because of the huge quantity, of silver and the place where it was kept and the manner in which it was kept raises the conclusion that the silver was to be exported and was in the process of export is als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of M/s. Reliable Roadways by the customs authorities on December 29, 1967 when the place was raided by them, and the said M/s. Reliable Roadways thereafter furnished to the customs authorities the name of the petitioner, and produced the bills of M/s. J. Pitambardas in respect of the said 75 bars of silver, which bills were made out in the name of the petitioner without mentioning his address or whereabouts. His Lordship Mr. Justice Vimadalal observed in my opinion the facts enumerated in the preceding paragraph, whilst they may show that the petitioner intended to deal in some improper manner with the said 75 bars of silver, are perfectly consistent with such improper dealing being within the country, and there was no evidence at all before respondent No.1 to show that the petitioner s acts amounted to a direct movement towards the commission of the offence in question, viz., that of exporting the said 75 bars out of the country. It was, therefore, not possible for any reasonable person to come to the conclusion, on those facts, that the said 75 bars of silver were attempted to be exported by the petitioner out of the country. It is thus seen that inspite of the evidence regar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to have given by Karimbhai to the driver was not seized. No explanation is forthcoming for the non-production of that chit. The appellant Sharma had denied having given such instructions. His statement discloses that he had even dismissed the driver later for unauthorised act. Excepting the statement of the driver which was stated to have been corroborated by the cleaner, there was no other evidence to implicate the appellant J.L. Sharma. In Criminal Appeal No. 1188 of 1978 the High Court of Gujarat set aside the conviction of the appellant J.L. Sharma. The Hon ble High Court observed because of the prosecution did not get the chit the statement of the driver that the master had given the chit has become doubtful. The High Court has further observed that except establishing the possession and ownership of the truck there was nothing else brought out to show that the appellant Sharma was in any way involved with the transport of the silver ingots. The finding of the High Court in the Criminal Appeal appears totally justified. The most important witness who could throw light as to the carriage of 20 slabs of silver, namely, Karimbhai to whom the driver had given the truck did not im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on was used as a means of transport in the smuggling of any goods or in the carriage of any smuggled goods. The allegation was that 20 slabs of silver was transported to a wadi in violation of the provisions of Sections 11K of the Customs Act. The further allegation was that there was an attempt to export silver. The truck No. MHT 2304 was admittedly used for the transport of 20 silver slabs from Panchkuva to wadi. The truck was not used from wadi to any other place. The journey between Panchkuva to wadi cannot be considered as in the course of attempted export of silver. The silver at that stage also cannot be considered as smuggled goods because there was no attempt to export at that stage. In the said circumstances it cannot be said that the truck was used as a means of transport in the smuggling of goods or in the carriage of smuggled goods. In that view of the matter the truck also cannot be ordered to be confiscated under Section 115(2). The violation of the provisions of Section 11K would only render the goods carried in the truck liable to confiscation and not the truck itself. In its order the Board had not disclosed or given finding as to the liability of the truck to con ..... 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