TMI Blog1991 (6) TMI 134X X X X Extracts X X X X X X X X Extracts X X X X ..... rched by the officers of DRI on the same date 19-1-1986. Nothing incriminating, however, was recovered from there. Search of room No. 7 of Hotel Little Star, Pahar Ganj, New Delhi on the same day, under the occupation of K.B. Nandwani and Kashmiri (another appellant herein) resulted in the recovery and seizure of documents including two confirmed PANAM air tickets from New Delhi to New York for 20-1-1986 in the names of Raj Kumar and Kashmiri for PANAM flight PA-73 and their passports. 1.3 Raj Kumar Karwal in his statement dated 19-1-1986 under Section 108 of the Customs Act, 1962 admitted the recovery of 2.000 Kgs. of heroin from the aforesaid premises of Louis Thomas in his and K.B. Nandwani s presence. He stated that heroin was given to him by K.B. Nandwani on 17-1-1986 in the aforesaid room at Hotel Ashok Yatri Niwas, New Delhi. He carried the said heroin on 18-1-1986 from the Hotel room to the House under the control of Louis Thomas from where the recovery thereof was effected on 19-1-1986. He also admitted that he was to carry that heroin to U.S.A. on 20-1-1986 by PANAM Flight PA-73. The purpose of carrying the heroin to Louis Thomas house was to get it properly packed in p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was paid by Raj Kumar Karwal s father Govind Paul Karwal in Nandwani s presence. He inculcated Rana for meeting the idea of heroin business and that Rana purchased 2.000 kgs. of heroin from a boy. Shri Nandwani further stated that Ashok Pahuja had told him that Louis Thomas would be helpful in smuggling heroin out of lndia inasmuch as he could help in heroin being taken to aircraft without customs check at the time of Raj Kumar s departure on 20-1-1980 to New York. He further stated that Kashmiri who had financed the purchase of the heroin was to accompany Raj Kumar on the same flight to the U.S.A. and that he was to get U.S. $ 15,000 in that deal. 1.6 Shri Kashmiri in his statement dated 19-1-1986 recorded under section 108 of the Customs Act, 1962 admitted that he knew K.B. Nandwani;. that Nandwani introduced him to one Rana; that they offered him U.S. $ 2000 for carrying heroin to U.S.A.; that he turned down the offer; that Nandwani again offered him to carry heroin to U.S.A. and he invested Rs. 1,30,000/- in that business since he was convinced of Rana s contacts in U.S. embassy. He further admitted that Nandwani informed that he had purchased heroin with the said amount of R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... behind the bars and therefore, sufficient time be given to them to enable them to give effective and proper reply. Shri Nandwani, however, had given some reply in detail through the Superintendent, Central Jail, Tihar. The learned advocate further submitted that the adjudicating authority did not give to the appellants an opportunity for personal hearing because no notices in this regard were received by them. He also stated that the statements said to have been recorded under Section 108 of the Customs Act from the various appellants, were taken under coercion and torture. He also submitted on the merits of the case as a common ground for all the appellants that even assuming that the said heroin was. recovered from the flat in Saket, New Delhi, there is no evidence that the same was liable to be exported. The heroin in question was not seized from the Airport and therefore, there was no attempt to export the said heroin for which the goods had been confiscated and the appellants had been penalised under the Customs Act. From the overall evidence on record he submits that no case for attempt to export heroin illegally out of India could be made out against the appellants. He, ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said heroin deal was financed by the said Nandwani and he (Nandwani) alongwith Sh. Ashok Pahuja were actively con cerned in acquisition, possession, transportation and attempt to export seized heroin out of India." 4.2 Section 113(d) for a proper appreciation of its application to the facts and circumstances of the case, is reproduced below :- 113(d) - any goods attempted to exported or brought within the limits of any customs area for the purpose of being exported contrary to any prohibition imposed by or under this Act or any other law for the time being in force . 4.3 It is apparent from the facts of this case that heroin has been seized from a house in Saket at Delhi. This has not been seized eilher within or near the customs area or in the course of its transmission towards Airport or Customs area so that the charge of attempt of export could be sustained in the instant case. Attempt has not been defined in the Customs Act. However, attempt at export came to be examined before the Supreme Court in the case of State of Maharashtra v. Yakub Others [AIR 1980 S.C 1111 = 1983 (13) E.L.T. 1637 (S.C)]. Two separate judgments have been delivered by the two learned Judges o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n para 31 of his judgment he has observed as follows :- 31. Let me now state the result of the search and research: In order to constitute an attempt first, there must be an intention to commit a particular offence, second, some act must have been done which would necessarily have to be done towards the commission of the offence, and, third, such act must be proximate to the intended result. The measure of proximity is not in relation to time and action but in relation to intention. In other words, the act must reveal, with reasonable certainty, in conjunction with other facts and circumstances and not necessarily in isolation an intention, as distinguished from a mere desire or object, to commit the particular offence, though the act by itself may be merely suggestive or indicative of such intention, but that it must be, that is, it must be indicative or suggestive of the intention. For instance, in the instant case, had the truck been stopped and searched at the very commencement of the journey or even at Shirsat Naka, the discovery of silver ingots in the truck might at the worst lead to the inference that the accused had prepared or were preparing for the commission of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not liable to confiscation for attempt at unlawful export. Consequently imposition of penalty on the appellants is not justified. Hence we set aside the penalties on the appellants. 4.8 Section 8 of the NDPS Act, 1985 prohibits, inter alia, export from India of any narcotic drug or psychotropic substances except for medical or scientific purposes etc. Section 8 of the said Act, however, prohibits possession of narcotic drugs and psychotropic substances as well. Possession of heroin and the concern of the appellants in possession of heroin is not a subject matter of the appeal before us. Section 79 of the NDPS Act, 1985 makes, inter alia, prohibition and restrictions imposed under that Act in respect of export from India of narcotic drugs and psychotropic substances as prohibition and restrictions under the Customs Act. Therefore, we are not concerned with the prohibition on possession of heroin by the appellants in respect of the appeal under the Customs Act. 5. Hence the above order is passed without prejudice to any action that might be taken against the goods as well as the appellants under the NDPS Act, 1985 or any other law for the time being in force. In fact, the im ..... X X X X Extracts X X X X X X X X Extracts X X X X
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