1991 (6) TMI 134 - AT - Customs

Summary

Issues Involved:
1. Legality of the seizure and confiscation of heroin.
2. Validity of penalties imposed on the appellants.
3. Alleged procedural lapses and denial of opportunity for representation.
4. Determination of "attempt" to export heroin under the Customs Act.

Summary of Judgment:

1. Legality of the Seizure and Confiscation of Heroin:
The heroin was seized from a residential premise in Saket, not within or near the customs area, which is crucial for sustaining the charge of an attempt to export. The adjudicating authority found that the appellants had entered into a criminal conspiracy to export 2 Kgs of heroin, rendering it liable to confiscation u/s 113(d) of the Customs Act for contravention of Section 8 of the NDPS Act, 1985. However, the Tribunal noted that the seizure did not occur in a customs area or during transmission towards the airport, thus failing to meet the criteria for an "attempt" to export.

2. Validity of Penalties Imposed on the Appellants:
Penalties were imposed on the appellants for their involvement in the conspiracy to smuggle heroin. The adjudicating authority imposed penalties of Rs. 15 lakhs on K.B. Nandwani, and Rs. 10 lakhs each on Kashmiri, Ashok Pahuja, and Raj Kumar Karwal. The Tribunal, however, found that the acts of the appellants indicated preparation rather than an attempt to export heroin, as defined by the Supreme Court in the case of State of Maharashtra v. Yakub & Others. Consequently, the penalties were set aside.

3. Alleged Procedural Lapses and Denial of Opportunity for Representation:
The appellants argued that they were detained in Central Jail, Tihar, and did not receive the show cause notice or an opportunity for effective representation. They claimed that their statements u/s 108 of the Customs Act were taken under coercion and torture. The Tribunal noted these procedural lapses but focused on the substantive issue of whether an attempt to export was made.

4. Determination of "Attempt" to Export Heroin under the Customs Act:
The Tribunal referred to the Supreme Court's interpretation of "attempt" in the case of State of Maharashtra v. Yakub & Others, which requires an act beyond preparation and reasonably proximate to the commission of the offense. The Tribunal concluded that the appellants' actions constituted preparation rather than an attempt to export heroin. The heroin was seized from a house, and the mere possession of PANAM tickets did not establish an attempt to smuggle heroin out of the country.

Conclusion:
The Tribunal set aside the penalties imposed on the appellants, holding that the heroin was not liable to confiscation for an attempt at unlawful export. The order was passed without prejudice to any action that might be taken under the NDPS Act, 1985, or any other law. Appeals were allowed, and the impugned order was set aside.