TMI Blog2010 (3) TMI 1067X X X X Extracts X X X X X X X X Extracts X X X X ..... dicated. In view of intelligence report, the authorities under the Act were alert in the township of Raxaul, a town at the Indo-Nepal border known for illegal import and export activities. During the night intervening 3.11.2006 and 4.11.2006, at about 01.00 hours, the functionaries of the department noticed goods being carried on a Thela and was being escorted by a person on a motorcycle. The Thela was moving towards the territory of Nepal along. As soon as they noticed the departmental functionaries, both of them took to their heels abandoning the goods-laden Thela and the motorcycle, and disappeared in the labyrinthine lanes of the township, taking advantage of the darkness of the night. Examination of Thela revealed that it was loaded with logs of some kind of wood, red in colour, and wrapped in plastic fabric. The functionaries then rolled the Thela as well as the motorcycle to the godown of M/S Bihar Carrying Co., Narendra Shrama Road, Raxaul. Two persons opened the doors. A search of the godown disclosed that another consignment of the same item had already been stored which was also seized. It is relevant to state that the goods were red sandalwood and combined together weig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence in terms of section 108 of the Act. She relies on the judgment of the Supreme Court in Bhana Khalpa Bhai Patel vs. Assistant Collector of Cus., Bulsar, reported in 1997 (96) E.L.T. 211 (S.C.)= A.I.R. 1998 S.C. 1487. She submits that the cause shown by the respondent, read with the documentary evidence on record, fully established the culpability of the respondent. She also submits that the primary onus of proof is on the department to establish that the goods in question are smuggled or meant to be smuggled which has been fully discharged by the department. On the other hand, the respondent has failed to discharge his onus, and he has equally failed to avail of the opportunities by his refusal to appear before the authorities. She relies on the judgment of the Supreme Court in Collector of Customs, Madras and others vs. D. Bhoormull, reported in 1983 E.L.T. 1546 (S.C.). She also submits that the respondent in his appeal before the learned Commissioner had prayed for reduction of the punishment which by necessary implication means that he has accepted his culpability. She lastly submits that the respondent is trying to take undue and unjustified advantage of hair-splitting tech ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t pay due regard to other kindred principles, no less fundamental, of universal application. One of them is that the prosecution or the Department is not required to prove its case with mathematical precision to a demonstrable degree; for, in all human affairs absolute certainty is a myth, and as Prof. Brett felicitously puts it-- all exactness is a fake . El Dorado of absolute Proof being unattainable, the law, accepts for it, probability as a working substitute in this work-a-day world. The law does not require the prosecution to prove the impossible. All that it requires is the establishment of such a degree of probability that a prudent man may, on its basis, believe in the existence of the fact in issue. Thus legal proof is not necessarily perfect proof often it is nothing more than a prudent man s estimate as to the probabilities of the case. 31. The other cardinal principle having an important bearing on the incidence of burden of proof is that sufficiency and weight of the evidence is to be considered to use the words of Lord Mansfield in Blatch v. Archar (1974) 1 Cowp. 63 at p. 65 According to the Proof which it was in the power of one side to prove and in the power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant, recorded Ghanshyam Gupta, whereas according to the respondent, recorded Ghanshyam Gepu. We will have to deal with this contention at the appropriate stage. 8. As soon as the situation became clear to the authorities as to the complicity of the respondent summons were issued to him as many as five times and he disobeyed each one of them. It does not need any emphasis to state that the respondent was duty-bound to respond to the summons which he persistently disobeyed. We wish to state at this stage that extraordinary writ jurisdiction is never exercised in favour of a person who has no respect for the lawful authority of the State, no respect for the rule of law and the established procedure. This will undoubtedly weigh against the respondent. The learned first authority has observed as follows in paragraph 4.07 of his order dated 11.12.2007: 4.07. I find it all the more surprising that even after issue of 05 repeated summons Shri Ghanshyam Prasad Gupta did not appear before the investigation to clarify his stand in the matter. His routine requests for another date or appearance after every summon on one pretext or the other and finally not presenting himself for exa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gnee. The goods had been booked at Kolkata, and the destination station was Raxaul, the heaven of smugglers. They have concurrently found that the goods belonged to Ghanshyam Prasad Gupta which he was trying to smuggle to Nepal and is, therefore, liable under the Act. 10. It is relevant to state that the question of cross- examination of any witness would have arisen had he personally appeared and made prayer to that effect. A mere statement in the pleading is always treated by the Court to be grossly inadequate. It is trite law that the litigant makes multiple prayers in his pleadings, but those have to be pressed before the Court. The respondent by his purposive absention, failed to avail of the opportunities. We must state to the credit of the authorities that they patiently issued summons after summons to the respondent in an act of fairness. We notice in the order of the learned first authority that, at the final stage, the respondent appeared through his counsel by filing duly executed Vakalatnama. This cannot be in compliance of the five summonses for personal appearance so that his statement under section 108 of the Act could be recorded. 11. Of the four persons who m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rasad Gupta was the consignor and consignee of the goods in question, as has been found and held by the two authorities and was making attempts to smuggle the goods across the border surreptitiously at unearthly hour. 14. We must deal with the contention advanced on behalf of the respondent that Tribunal is the last forum of facts which has concluded that there is no material on record to connect the respondent with illegal exports of goods. He has also relied on the judgment of the Supreme Court in Metroark Ltd. Vs. Commissioner of Central Excise, Calcutta, reported in (2004)12 S.C.C. 505, wherein, with respect to the scope and ambit of Article 136, it has been observed that unless it is shown that there is something perverse in its finding, the Supreme Court will not interfere with the fact-finding of the Tribunal. It must be stated that the judgment deals with the scope and ambit of the Supreme Court under Article 136 of the Constitution of India. Secondly, law is well settled that the High Court in exercise of jurisdiction under Articles 226 and 227 of the Constitution normally takes the findings of facts recorded by the forum of facts as final. This is subject to well-known ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
