9911796707
TMI Blog1995 (5) TMI 121X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent No. 1 herein (i.e. Peerulal son of Gordhanji Solanki) was served with a show cause notice dated June 18, 1983 issued by the Assistant Collector, Customs and Central Excise, Jodhpur. The show cause notice was served upon others also, namely, Adam Khan son of Jamal Khan, Mage Khan son of Jeete Khan, Lakhe Khan son of Sher Khan, all of Jaisalmer, Kanhaiya Lal Mehra of Jodhpur, Jethmal of Jodhpur and Jumma Khan of Jaisalmer. It was alleged in the show cause notice that acting on information that on March 2, 1983 Jonga Jeep No. RRN 8716 will carry liquor from Jodhpur to Jaisalmer for illicit export to Pakistan through unauthorised route, Nakabandi was arranged. At about 21.15 Hrs. on Jodhpur to Jaisalmer road 20 kms. beyond Jodhpur one Jeep was noticed. Signals were given to stop but the jeep did not stop and speeded away. However, it was intercepted by another party by road blocking. On search of the Jeep three persons namely, Adam Khan s/o Jala Khan, Khudha Bux Mage Khan son of Jeete Khan and Lakhe Khan son of Sher Khan were sitting in the Jeep. The Jeep was brought to Jodhpur Custom Office. When searched in presence of two independent persons, following articles were found ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arrage situated at 7th Road, Sardarpura, Jodhpur. Both Adam Khan and Mage Khan clearly admitted that liquor was loaded for Jaisalmer for onward transportation to Pakistan through an unauthorised route. They also admitted that they had no permits, vouchers and other legal documents for transportation of the goods in question to Pakistan. They also admitted about their similar activities in past. Lakhe Khan also admitted in his statement that the liquor was got loaded by Peerulal at Jodhpur. 5. It was also mentioned in the show cause notice that statement of Peerulal was recorded under Section 108 of the Customs Act, 1962 on March 3, 1983 and March 4, 1983. In the said statement Peerulal admitted the ownership of 503 bottles of whisky recovered and seized from Jonga Jeep No. RRN 8716. In this connection, it is alleged as follows :- "And whereas that Sh. Peerulal in his statement dated 3-3-1983 and 4-3-1983 recorded under Section 108 of the Customs Act, 1962 admitted the ownership of 503 bottles of whisky recovered and seized from Jonga Jeep No. RRN 8716 by the Customs Officers in the night of 2-3-1983 at Jodhpur-Jaisalmer Road. He also admitted that 120 bottles of Guru Beer re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etition was resisted by the appellants herein on facts as well as on law points. It was inter alia submitted that the petition was premature. The petitioners had alternate remedy for reply to the show cause notice and agitating the case before the authorities exercising powers under the appropriate provisions of the Customs Act, 1962. The disputed questions of fact were involved in the petition and the notice was issued within the powers of the customs officer. 8. The learned Single Judge heard the petition on merits and came to the conclusion that the theory of transporting the whisky and Rum through unspecified route was subsequently taken by the respondents in the show cause notice, inasmuch as, the same was not stated in the seizure memo. The learned Single Judge came to the conclusion that the petitioner No. 1 Peerulal had not admitted in his statement under Section 108 of the Customs Act that he had sent the consignment of goods for smuggling or transporting to Pakistan. On this basis, the Learned Single Judge held that the show cause notice issued against Peerulal was without jurisdiction and quashed and set aside the same and passed the judgment and order as stated he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 75 bags of paddy weighing about 140 maunds was intercepted as export of paddy was contrary to law. The truck was stopped at Samalkha Barrier which was 32 Miles from Delhi. Thus there was no export of paddy outside the State of Punjab boundary. In this fact situation, the Supreme Court held that it was a case of preparation for committing an offence. It was quite possible that the accused might have been warned that they had no licence to carry the paddy and they might have changed their mind at any place between Samalkha Barrier and the Delhi-Punjab boundary and not have proceeded further in their journey. In view of [this] decision, it is submitted that at the most, it can be said to be preparation for committing an offence and not an attempt to commit offence. The aforesaid submission cannot be accepted. In para 4 of the decision, the Supreme Court has inter alia observed that the preparation consists in devising or arranging the means or measures necessary for the commission of the offence. On the other hand, at attempt to commit the offence is a direct movement towards the commission after preparations are made. Supreme Court has further observed that in order that a person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the authorised place but they were stored at Jodhpur; (2) That these goods particularly whisky was got loaded in Jonga Jeep by Peerulal; (3) That Jonga Jeep was being driven not through authorised route and the goods were being carried through unauthorised route; (4) Jonga Jeep was given signal to stop but instead it speeded away and tried to escape; (5) All the three inmates of Jonga Jeep, namely, Adam Khan, Mage Khan and Lakhe Khan admitted that they were carrying liquor and other contraband goods like silver etc. from Jodhpur for being smuggled to Pakistan. (6) These persons also admitted that they were engaged in such activities in past. (7) Petitioner No. 1 Peerulal clearly stated in his statement u/s 108, Customs Act that he was the owner of Whisky bottles recovered and seized from Jonga Jeep No. RRN 8716 by the Customs Officers in the night of March 2, 1983 at Jodhpur-Jaisalmer route. He also admitted that he was the owner of 120 bottles of Guru Beer recovered and seized from his residence at Sardarpura, Jodhpur. He further admitted that he had no permit or any other document for possession and transportation of Whisky, Rum and Beer. He clearly stated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re being attempted to be exported in improper manner. 13. For the reasons indicated hereinabove while discussing the case of Malkiat Singh (supra), this decision is also of no help to the petitioners. The material disclosed in the show cause notice prima facie discloses that the goods were liable to be confiscated and the Customs Officers had sufficient material to form a reasonable belief to the effect that the goods were being attempted to be exported in an improper manner. Therefore, this decision of the Supreme Court is also of no help to the petitioners. 14. On the aforesaid reasons, the judgment and order passed by the learned Single Judge, is liable to be reversed and set aside. 15. In the result, the appeal is allowed. The judgment and order dated July 29, 1993, in S.B. Civil Writ Petition No. 1863/1983 is reversed and set aside. The appellants will proceed further with adjudication of the show cause notice in accordance with law. However, the petitioners will be at liberty to file reply to show cause notice within a period of one month from the date of pronouncement of this judgment. If the reply is filed within stipulated time, the same shall be treated ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
