TMI Blog1997 (4) TMI 510X X X X Extracts X X X X X X X X Extracts X X X X ..... B.S.F.) being the respondent No. 2 and 3 along with some customs officials, police personnel and responsible persons of the locality came to the aforesaid godown of the petitioners and although the petitioner No. 1 showed the said respondents the sale tax registration certificate, vouchers cash memo, the transport challan, stocks register and sale register, the BSF personnel arbitrarily and illegally lifted the said 64 quintals of black peppers on a matadore van which they brought along with them and took away the said goods and detained the same without further making any inventory or making any seizure list in respect thereof. Having failed to obtain any inventory from the respondent No. 2 and 3 the petitioner lodged a general diary on 7th December, 1996 with the officer-in-charge Samser ganj Police Station, at Dhuliyan. On 8th December, 1996 the petitioner No. 1 visited the office of the respondent No. 7 for demanding return of his said detained goods when the said goods were seized again by the customs authority and after preparation of a seizure list the same were handed over to the petitioner. 3. The aforesaid seizure list was issued under Section 110 of the Customs Act 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able belief under Section 110 of the Customs Act that the goods are liable to confiscation. It has been submitted that the reason for seizure as indicated in the said order itself that the goods are liable to be exported outside India cannot be reason at all under Section 110 read with Section 113 of the Customs Act for seizure in as much as goods are liable to be confiscated under Section 113 of the Customs Act, if, the same are attempted to be exported outside India illegally and as there was no attempt to export the goods or there was any overt act from which it can be said that there was an attempt to export the goods but the goods in fact having been seized from the godown of the petitioners there could not have been any seizure of the goods legally. It has further been submitted, infer alia, that in the order of seizure itself where the reason for the seizure has been disclosed. It has not been stated that there has been any attempt to export but it has been merely stated the goods are liable to be exported but liability of export does not make it liable for confiscation under Section 113 of the Act and therefore liable for seizure under Section 110 of the Act. Mr. Mukh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r storing of spices could be produced; thereafter on opening the godown 128 bags of black pepper weighing about 64 quintals were found in stock and the said partner could show only cash memo/bills in support of his purchase of black peppers, no register for stock and/ or sale and duplicate copies of cash memos against sale could be found in the godown. 9. It has been further stated in the said affidavit that as it was found that the godown is not approved by any State/or Central Government department for the purpose of storing of black peppers , the goods were lifted by BSF Officers along with Sri Asif Hussain for further examination. Thereafter on 8th December, 1996, Company Commandant, BSF, handed over 128 bags of black pepper weighing 64 quintals valued at ₹ 5,12,000/-along with Sri Asif Hussain as apprehended person and the seizure case was started. 10. It is further stated in the said affidavit that after demand for justice was made on behalf of the petitioners by his learned Advocate claiming release of the goods the Superintendent of Customs, Jangipur Customs Preventive Unit ordered enquiry into the claim of the applicant and on examination of the available reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthorities initially did not file any affidavit inspite of the direction of the court although they produced records wherefrom it appeared that no seizure list was prepared by the BSF authorities nor any order of seizure was passed under Section 110 of the Customs Act as a customs officer although admittedly such goods were taken away by them on 7th December, 1996. It also appeared from the said records that the seizure list was prepared only by the customs authorities after the goods were handed over to them by the BSF Authorities on 8th of December, 1996. The said records also contain a detailed report regarding the operation conducted on specific information wherefrom it appears that on 6th December, 1996, allegedly on receipt of an information regarding smuggling activities raids were conducted on 6th and 7th December, 1996, at the godown of the present petitioner. But such report was prepared only on 21st January, 1997, that is after the order of seizure was passed by the Customs Authorities and when the present writ application challenging such seizure was being heard by this Court. 15. It will further appear from the said records produced before this Court that there is o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted search operation in the godown of Bengal Traders and they seized 127 bags black peppers weighing 6350 Kgs. valued at ₹ 5,12,000/- and also apprehended the proprietor of the godown as he could not produce any valid documents for stocking/dumping said black pepper in the godown; the apprehended person alongwith seized black pepper were handed over to customs office, Dhuliyan vide customs Case No. 40/EXP/CL/ DHN/BSF/96 dated December 8, 1996. It is further alleged in the said affidavit that from the seizure effected by the party consisting of BSF and others, it appears that the smugglers are managing to dump huge quantity of outgoing contraband goods in the godowns available with the connivance of staff of these godowns for further smuggling same in small quantities to Bangladesh on getting chance. The Commandar deployed on the borders have been briefed to liaise with sister agencies for getting such advance information as well as for conducting such co-ordinated operations for detecting such smuggling activities in their area of responsibility. It is further stated in paragraph 8 of the said affidavit that 64 quintals of black peppers were recovered from the petitioners w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... odown, the same may be seized on reasonable belief of being liable for confiscation under Section 110 of the Customs Act. 23. It has also been submitted by Mr. Sarkar that by virtue of a notification the BSF personnel can exercise the power of the customs officers under the aforesaid provisions of the Customs Act and the BSF personnel in exercise of such power searched the godown of the petitioner and detained one of the partners, While such power of the BSF personnel as custom officer to search such godown and detain a partner cannot be disputed and has not been disputed by the petitioners, Mr. Sarkar has failed to satisfy the court as to how the BSF personnel could remove the goods from the godown on 7th December, 1996 when admittedly they did not pass any order of seizure on that day and did not even prepare a seizure list. The removal of the goods in the manner aforesaid was unwarranted in law. 24. Since the goods are liable to confiscation on an attempt to illegally import the same under Section 111 of the Act or an attempt to illegally export under Section 113 of the Customs Act, the reasonable belief as to the liability of confiscation for the purpose of seizure under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f. Both the aforesaid two decisions by the Supreme Court were rendered in- cases under the Customs Act. 27. In case of S. Narayanappa v. Income Tax Commissioner, Bangalore, Supreme Court while interpreting Section 34(1)(a) of the Income Tax Act 1922. which empowered the Income Tax Officer to issue notice in respect of assessment beyond the period of Four years if he has reason to belief that the previous asessment was under-assessed held that such belief must be held in good faith and cannot be mere pretence and existence of belief is justiciable but not sufficient grounds of belief. It was held reason to believe in Section 34 does not mean a purely subjective satisfaction but the same must be held in good faith and it cannot be merely a pretence and it is open to the court to examine the question whether reasons for the belief have a rational connection or a relevant bearing to the formation of the belief and are not extraneous or irrelevant to the purpose of the section. 28. It has been held in the case of Assistant Collector of Customs v. Malhotra, (paragraph 13) following its earlier decision in the case of Narayanappa v. Commissioner of Income Tax. Bangalore, reported in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case that the impugned seizure has been made by the Customs Authority themselves on 8th October, 1996 after the goods were handed over to them by the BSF Authorities. No material however has been produced before this Court by the Customs Authority on the basis of which they were of the requisite reasonable belief for exercise of power under Section 110 read with Section 113. Assuming the records produced by the BSF Authorities can be treated as materials of the customs authorities for the purpose of seizure even then it does not appear there was any material or information prior to the search of the godown of the petitioner on which the requisite reasonable belief under Section 110 read with under Section 113 can be formed. The only material which is there in the record prior to the search of the godown of the petitioner and the BSF Authorities is an allegation that an information has been received as to the smuggling activities in the various places. From the said records it does not appear that there was any material or information received by the BSF Authorities to the effect that the petitioner were making any attempt to export such goods illegally. 36. As pointed out here ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... export. 40. The ld. Counsel appearing for the respondents has relied on the decision of the Supreme Court in the case of State of Maharastra v. Md. Eaqub, reported in AIR 1980 SC page 1111, for the purpose of explaining the meaning and purport of the word attempt . 41. But the aforesaid decision of the Supreme Court inspite of helping the respondents really helps the petitioner as in the aforeasaid decision also the Supreme Court held that without such an overt act there cannot be attempt to commit an offence. It has been held by the Supreme Court in paragraph 13 of the said decision that what constitutes attempt is a mixed question of law and fact depending largely on the circumstances of the particular case. The Supreme Court held as under:-- Broadly speaking, all crimes which consist of the commission of affirmative acts are preceded by some covert or overt conduct which may be divided into three stages. The first stage exists when the culprit first entertains the idea or intention to commit an offence. In the second stage he makes preparations to commit it. The third stage is reached when the culprit takes deliberate overt steps to commit the offence, Such overt a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... how an intention to export illegally, but by no stretch of imagination the same can be extended even to preparation for illegal export, far less to speak of attempt to illegal export. 45. The full bench decision of this Hon'ble Court in the case of Euresian Equipment and Chemicals Ltd. v. Collector of Customs, relied upon by the respondents does not help them either. 46. In the aforesaid case the full bench was considering, inter alia, the question, in a situation where the goods have already been exported illegally whether the liability to confiscation under Section 113 of the Act will arise. It was held in the said case in paragraph 26 of the judgment that Section 113(d) makes it clear that the liability to confiscation will arise if the attempt to export is contrary to any provision imposed by or under the Customs Act or any other law for the time being in force. It was further held that the liability to confiscation arises and is incurred as soon as the goods are attempted to be exported contrary to any such prohibition and attempt to export the goods must necessarily precede the actual exportation of the goods and under such circumstances the liability for confiscati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r nor the court should review the action of the customs officers at the investigation stage with legal microscope. In support of his aforesaid contention he has relied upon on the decision of Supreme Court in the case of Union of India v. Shyam Sundre where the Supreme Court was of the said view following its earlier decision reported in AIR 1987 SC page 132 and AIR 1962 SC page 1559. In the said case of Shyam Sundre the Supreme Court also held that the court not to sit in appeal over the reasonable belief of the appropriate officer so long prima facie there were grounds to justify his belief (emphasis mine). 54. He has also relied upon the decision of Satyabrata Sinha, J, in the case of Bowriah Cotton Mills Co. Ltd. v. Commissioner of Customs, Calcutta . In support of his contention that at this stage there should be no interference by the writ court. 55. While there cannot be any quarrel with the aforesaid proposition of law settled by the Hon'ble Supreme Court, the liability of confiscation under Section 113 arises only under a situation contemplated under the said provision of the Act and the power under Section 110 can therefore be exercised by the concerned customs ..... X X X X Extracts X X X X X X X X Extracts X X X X
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