TMI Blog1988 (2) TMI 77X X X X Extracts X X X X X X X X Extracts X X X X ..... f Rs. 25,000 and still further imposing penalty under Section 114(1) of the Customs Act, 1962 (hereinafter referred to as 'the Act"). 2. Facts stated by petitioner No. 1 are that he carried on money lending business independently in his individual capacity with effect from 21.6.1974 and then started business in silver from 13.9.1976. He was assessed with income tax as an individual. He made local purchases of silver in the shape of old silver coins and old silver ornaments from Tarava market. On 26.9.1976 he transported in the Ambassador car bearing registration No. 1763, 17 silver bars, 98 silver coins, 4 silver sticks, 2 round shaped silver plates and 9 silver ingots in all weighing 370.850 kgs. for being melted at Bargarh. The driver o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the petitioners had made preparation to smuggle a huge quantity of silver without any authority from Bolangir Railway Station to Bombay and were prevented in time. They denied that the silver was being transported to Bargarh for the purpose of melting, because melting facilities were available at Tarava itself. As there was violation of different provisions of the Act, the order of confiscation and penalty could not be challenged. It was further averred that as alternative remedy was available to the petitioners by way of appeal and reference, the writ petition is not maintainable. 4. A few provisions of the Act and the notifications issued thereunder are necessary to be quoted to understand the case. ** ** ** **** 5. Mr. Ranjit Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nepur and Bolangir in the District of Bolangir. There is a pucca road in between Sonepur and Bolangir. There is a railway station at Bolangir and a person can travel by train from that station to any other parts of India including Bombay. There is also a pucca road from Bolangir to Bargarh and to Sambalpur in Sambalpur district. A man can approach any part of India if he entrains either at Bargarh or at Sambalpur Railway Stations. If a person travels by car from Tarava enroute to Bargarh he has to pass through Bolangir town by travelling on Bolangir-Sambalpur road. 7. No document or any other important evidence was either procured or seized from the petitioners to conclusively indicate that any one or more of them had intended to board th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Bench of this Court decided this very case at an earlier stage and observed that onus is on the Department to prove that the specified goods were intended to be transported into a specified area and thus there was violation of the statutory provisions of Section 11-K of the Act. In AIR 1970 SC 713, Malkiat Singh and Another v. The State of Punjab, a distinction was drawn between preparation and attempt. It was held that a preparation for committing an offence is different from attempt to commit it. The preparation consists in devising or arranging the means or measures necessary for the commission of the offence. On the other hand, an attempt to commit the offence is a direct movement towards the commission after preparations are made. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct movement towards its commission, but the actual commission of the crime is frustrated by reason of the fact that it is interrupted by circumstances independent of his volition. Such act need not, however, be penultimate act towards the commission of crime. Considered in the light of the undisputed facts and the principles of law referred to above, we are unable to agree with the view expressed by opposite party No. 1 that the petitioners were transporting silver, being specified goods, by causing its movement towards Bombay, a specified area without being accompanied by a transport voucher as contemplated in Section 11-K. Therefore, movement of the silver did not attract the penal provisions of Sections 113, 114, 115 and 125 of the Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
