TMI Blog1991 (8) TMI 104X X X X Extracts X X X X X X X X Extracts X X X X ..... of Excise and Customs are illegal as the department has failed to establish the material ingredients of Section 113(c) of the Act. He contended that there is nothing on record to show that the petitioner brought the silver bars near the coast of India or near any bay, gulf, creek or tidal river for the purpose of being exported. It is his contention that even for the time being if it is presumed that petitioner has brought the said silver at village Tukwada, then also at the most it would amount to preparation for committing an offence, but it cannot be said that the petitioner has committed any offence. 3. For appreciating the contention which is advanced by the learned counsel for the petitioner, it would be necessary to refer to the facts which are relied upon by the Additional Collector. The Customs Officer of Vapi received information at 2.00 hours at night on 27-8-1968 regarding concealment of huge quantity of silver which was meant for illegal export out of India. They received the information that it was kept in the house of one Manibhai Jaganji Desai of Tukwada village near Vapi. In presence of panchas house of Manibhai Desai was searched at 2.30 a.m. In the course of se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would come to know that silver is kept in his house. It is his say that as Bhagwanji was his relative and was insisting, therefore he could not displease him. He further stated that he feared in saying no to these persons, as the word was of a fisherman (****) and if he refuses then it was likely that they may harass him. As he and his wife were old persons, it was not possible for them to have enmity with anyone. 5. On the same day the statement of Bhagwanji Gulabbhai Desai was also recorded. That is also at Annexure-E to this petition. Bhagwanji Gulabbhai stated that he was resident of village Tukwada. At about 10.30 p.m. Manibhai of village Dabhel (petitioner) came to his house. He came in one jeep car and informed him that his silver was to come and that he intends to keep it at the house of Manibhai Jaganji Desai; Manibhai Jaganji Desai was hesitating in keeping the silver therefore he should come along with him and request him to permit him to keep silver. He therefore went at the house of Manibhai Jaganji and had a talk with him and Manibhai Jaganji asked him whether he would be paid his remuneration as keeping of silver was hazardous. Thereafter petitioner and Manibhai J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of the petitioner that he was taking the said silver bars at land customs station or, a customs port appointed for loading such goods for being exported. 9. . However, with regard to the remaining two ingredients, learned counsel for the petitioner vehemently submitted that village Tukwada cannot be said to be near coast of India or near tidal river. It is his contention that there was no prohibition for a citizen to take goods within a particular area and at the relevant time, the provisions of Section 11H to 11M of the Customs Act were not in force. 10. In our view, there is no substance in the aforesaid contention of the learned counsel for the petitioner. The Parliament has specifically used phrase "near the land frontier" or "near the coast of India". It has not used the phrase that goods should be brought on the coastal area. The phrase near the coastal area would indicate that if it is brought at some short distance place from the coastal area or the land frontier then it would be near the coastal area or the land frontier. There is no justification in restricting the meaning of the word "near" to mean that it must be adjoining to the coastal area or at the lan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore held that village Tukwada had to be considered as a place near the coast of Daman and therefore essential ingredient of Sec. 113(c) of the Act has been satisfied by the department. At present, we are ignoring the contention raised by the respondents that village Tukwada is hardly a furlong away from the tidal river Kilak. 11. The next material ingredient required to be established is whether the goods brought at village Tukwada were for the purpose of being exported. For holding that it was for the purpose of being exported, the Additional Collector has relied upon the statements of Manibhai Desai, Bhagwanji Desai and on the circumstantial evidence. He arrived at a conclusion that the petitioner has failed to prove his contention that silver was being taken by him to Navsari and because of break-down of the truck he has to store it in the house of Manibhai Desai of Tukwada. He held that at no stage of adjudication proceeding petitioner could produce the actual transport documents in the form of consignment notes etc., under which the silver bars were being transported to Navsari; the registration number of the truck by which the bars were carried or the name of the tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of silver in his house. (5) The statement of Bhagwanji Desai reveals that as Manibhai Jaganji was hesitating in keeping silver bars at his house, petitioner went at the house of Bhagwanji and requested him to see that Manibhai Jaganji keeps the silver at his house. Manibhai Jaganji Desai specifically informed that if the goods were for smuggling, he would be involved. At that time, petitioner replied that he would take care of everything, he should not worry about it and that remuneration for keeping the silver would be paid to him. He also told that nobody was to know about it. (6) For a period of nearly two months from the date of the seizure of large quantity of silver, the petitioner had not claimed its ownership. Only, by a letter dated 22nd November 1968, the petitioner informed Vapi Customs Officers that the said silver belonged to the firm of Manibhai Kadarbhai and company of Vapi. If the petitioner has kept the silver for legitimate purpose at the house of Manibhai Desai at village Tukwada, he would not have waited for a period of two months. (7) On the basis of the said letter, inquiries were made by the Customs Officers to find out whereabout of the firm of M/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der :- "The test for determining whether the act of the appellants constituted an attempt or preparation is whether the overt acts already done are such that if the offender changes his mind and does not proceed further in its progress the acts already done would be completely harmless. In the present case it is quite possible that the appellants may have been warned that they had no licence to carry the paddy and they may have changed their mind at any place between Sarallha Barrier and the Delhi-Punjab boundary and not have proceeded further in their journey. Section 5 of the Essential Commodities Act stated that "any person who attempts to contravene, or abets a contravention of, any order made under Section 3 shall be deemed to have contravened that order". But there is no provision in the Act which makes a preparation to commit an offence punishable. It follows therefore that the appellants should not have been convicted under Section 7 of the Essential Commodities Act." He also sought to rely upon certain decisions of the Collector of Customs, which are on the similar line that petitioner's act may at the most amount to preparation for goods being exported. 15. In our v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rea, whether they were brought for the purpose of being exported would depend upon the intention of the person concerned. That intention can be inferred from the circumstances of the case. 17. Apart from this aspect, the decision in the case of Malkiat Singh (supra) which is heavily relied upon by the learned counsel for the petitioner is distinguished and explained by the Supreme Court in the case of State of Maharashtra v. Mohd. Yakub and Others - AIR 1980 SC 1111. The Supreme Court considered the decision in the case of Malkiat Singh and observed as under :- "We think that the test propounded by the first sentence should be understood with reference to the facts of the case. The offence alleged to be contemplated was so far removed from completion in that case that the offender had yet ample time and opportunity to change his mind and proceed no further his earlier acts being completely harmless. That was what the Court meant, and the reference to 'the appellants' in the sentence where the test is propounded makes it clear that the test is propounded with reference to the particular facts of the case and not as a general rule. Otherwise in every case where an accused is inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umstantial evidence a reasonable and probable inference can be drawn from the facts which may emerge on the record. If the inference drawn by the competent authority is probable one or if that of a prudent man's estimate as to the probabilities of the case, this court would have no jurisdiction to interfere with the said findings of fact. 19. Similar type of contention is dealt with by the Supreme Court in the case of Collector of Customs v. D. Bhoormull - A.I.R. 1974 SC 859 = 1983 (13) E.L.T. 1546. In that case while discussing the provisions of Section 167 of the Sea Customs Act, the court also discussed the contention that burden of proof is always on the department and also the jurisdiction of the court under Article 226 of the Constitution of India. The court held that the burden of proving that the goods are smuggled goods, is on the Department. As it is a fundamental rule relating to proof in all criminal proceedings, where there is no statutory provision to the contrary. The court further held that one of the kindred principles is that the prosecution or department is not required to prove its case with mathematical precision to a demonstrable degree, for in all human aff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and in the power of the other to have contradicted". Since it is exceedingly difficult, if not absolutely impossible for the prosecution to prove facts which are especially within the knowledge of the opponent or the accused, it is not obliged to prove them as part of its primary burden. 32. Smuggling is clandestine conveying of goods to avoid illegal duties. Secrecy and stealth being its covering guards, it is impossible for the Preventive Department to unravel every link of the process. Many facts relating to this illicit business remain in the special or peculiar knowledge of the person concerned in it. On the principle underlying Section 106, Evidence Act, the burden to establish those facts is cast on the person concerned, and if he fails to establish or explain those facts, an adverse inference of facts may arise against him, which coupled with the presumptive evidence adduced by the prosecution or the Department would rebut the initial presumption of innocence in favour of that person and in the result prove him guilty. As pointed out by Best in 'Law of Evidence' (12th Edn. Article 320, page 291), the "presumption of innocence is, no doubt presumption juris: but every day' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 21. Considering the entire circumstantial evidence as stated above and statements of the witnesses, in our view, there is no substance in the contention of the learned counsel for the petitioner that the Additional Collector has placed burden upon the petitioner to prove that the goods were not kept at the house of Manibhai Desai of village Tukwada for the purpose of being exported. In our view, the circumstances narrated above, taken together leads to an inference that the petitioner had kept the said goods at the house of Manibhai Desai for the purpose of being exported and the burden of proof loses its importance in these type of cases when entire evidence including circumstantial evidence is taken into consideration by the authority for arriving at a conclusion. 22. The learned counsel for the petitioner lastly submitted that the order passed in appeal by the Central Board of Excise and Customs, is illegal because the Board has taken into consideration the provision of amended Section 11H to 11M by arriving at a conclusion that the petitioner has failed to produce transport vouchers before the authority and therefore it constitute sufficient evidence to transfer onus on the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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