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Issues Involved:
1. Whether there was an "attempt" to export the 75 bars of silver under the Customs Act, 1962. 2. Violation of principles of natural justice. 3. Evidence supporting the conclusion of an attempt to export. Issue-wise Detailed Analysis: 1. Whether there was an "attempt" to export the 75 bars of silver under the Customs Act, 1962: The petitioner challenged the impugned order of confiscation and penalty under Sections 113 and 114 of the Customs Act, 1962, arguing that there was no "attempt" to export the goods. The Court examined the legal connotation of "attempt" and referenced judicial decisions under the Indian Penal Code, notably the classic definition by Sir Lawrence Jenkins in Queen-Empress v. Luxman, which describes an attempt as "an intentional preparatory action which fails in object-which so fails through circumstances independent of the person who seeks its accomplishment." The Court also considered the Supreme Court's decisions in Malhiat Singh v. The State of Punjab and Abhayanand v. State of Bihar. The former case emphasized that an attempt involves a direct movement towards the commission of the offense after preparations are made. The latter case stated that an act constituting an attempt need not be the penultimate act but must be during the course of committing the offense. Applying these principles, the Court found that the facts of the case, such as the petitioner being a yarn merchant and not a dealer in silver, the lack of proper documentation, and the storage of silver bars with a transport company without indicating a destination, did not constitute a direct movement towards the commission of the offense of exporting the silver bars. Therefore, the Court concluded that no reasonable person could have arrived at the conclusion that there was an attempt to export the silver bars. 2. Violation of principles of natural justice: Although initially raised, the petitioner did not press this ground during the proceedings. The Court noted that proceedings before customs authorities relating to confiscation and penalty are quasi-judicial and must adhere to the principles of natural justice, including the right to cross-examine witnesses. However, since this ground was not pursued, the Court did not make a detailed analysis on this issue. 3. Evidence supporting the conclusion of an attempt to export: The Court examined the evidence presented and found that the facts were consistent with improper dealing within the country rather than an attempt to export. The Court noted that the customs authorities' conclusion was based on surmise and suspicion rather than concrete evidence. The Court emphasized that penal proceedings require the prosecution to prove the charge beyond all reasonable doubt, and the burden of proof does not shift to the accused except in exceptional cases. The Court rejected the respondents' argument that the shifting of the silver bars to the transport company's godown constituted an attempt to export. The Court clarified that the term "export" in the Customs Act, 1962, connotes the actual taking out of goods beyond the territorial limits of India, as supported by the Supreme Court's decision in B. K. Wadeyar v. Daulatram Rameshwarlal. The Court concluded that there was no evidence before the customs authorities to support the finding of an attempt to export, and the impugned order suffered from an error of law apparent on the face of the record. Conclusion: The Court quashed and set aside the impugned order of confiscation and personal penalty. The Court also directed the respondents to return the 75 bars of silver to the petitioner and ordered the respondents to pay the petitioner's costs. The Court exercised its discretion to grant relief under Article 226 of the Constitution, despite the petitioner not exhausting alternative remedies under the Customs Act, 1962, as those remedies were not equally efficacious.
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