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TMI Blog1990 (3) TMI 207X X X X Extracts X X X X X X X X Extracts X X X X ..... Border. The Patrol Party intercepted the loaded boat at a place in between Mollarchar and Reserverchar on River Brahmaputra and found 12 gunny bags containing cotton yarn (listed in Annexure). The Patrol Party brought the loaded boat along with the boatmen at Dhubri. Subsequently, they handed over the goods and boat along with boatmen to the Customs Officers of Dhubri for taking action under Customs Act. On demand, the owner of the boat, Md. Tarifullah Sk. and other two boatmen could not produce any cash memo or any valid documents relating to those cotton yarn. 3. On interrogation, Md. Tarifullah Sk. stated in his written statement dated 28-5-1983 that he is the owner of the boat and he generally carries goods and passengers in his boat in between Dhubri and Biraingchar village. On 27-5-1983 at about 20.00 hrs. a weaver of Phoolpur village came to him and asked whether he is agreeable to take 8/10 bags of cotton yarn from Dhubri to Purarvita. Having agreed to take the same on payment of Rs. 40/- the said weaver brought 12 gunny bags of cotton yarn by two hand pulled carts and loaded the same in his boat. It was also decided that the charges will be paid by the owner at Purarvita. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had purchased 120 bundles (240 half bundles) of cotton yarn from two shops in Calcutta at a total price of Rs. 24,982/- on behalf of Samity and on 24-5-1983 those cotton yarn were loaded in a truck bound for Gauhati from Calcutta and on 27-5-1983 he reached Dhubri by the said truck along with the goods. He had paid a sum of Rs. 200/- to the truck driver being the freight charges of the goods and the driver loaded the cotton yarn at Dhubri and left for Gauhati. Neither he sought nor the driver gave him the money receipt for Rs. 200/- against the freight charges paid to him. He cannot remember the No. of the said truck. He further stated that the cotton yarn they purchased are meant for use in the 11 Nos. of weaving machines of the Samity and for supply to the members of the Samity who have 30/35 machines. Later on, the cloth made by these weaving machines are deposited into the Samity and the weavers are paid their weaving charges. 5. Since Md. Tarifulla Sk. and his associates could not produce any legal document authorising them to export the seized goods from India to Bangladesh, the Customs Officers had reasons to believe that the said goods were attempted to be exported illega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... show that there was no attempt to smuggle the goods to Bangladesh. It was also contended that the order is thus discriminatory. He also drew, my attention to the sketch-map produced and contended that the goods were to be taken to Purarvita and this village Purarvita is far away in the up-stream from Dhubri Town in the river Brahmaputra and Bangladesh Border is in the down-stream far away from the place of interception of the boat, made by B.S.F. He contended that there is a difference between preparation and attempt and attempt begins where preparation ends. It was contended that after loading the subject cotton yarn they were waiting for favourable wind to move in the up-stream by sail. It was also contended that if the boatmen have made any preparation for attempt to export, the B.S.F. could have intercepted at that time instead of waiting for. the boat to move. It was also contended that the entire loading of the cotton yarn in the boat took place near the B.S.F. Camp and the villagers sitting near the ghat witnessed them and their statements were taken. 9. He also contended that the order is not a speaking order and when two boatmen were exonerated the other boatman, Tariful ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso contened that the Textile Licensing Authority of Government of West Bengal confirmed the fact that the licence numbers mentioned at the top of each of the invoices of the firms, submitted by the parties are fake. It was also contended that the statement of some prominent persons and ex-member of the Samity revealed that huge quantities of cotton yarns brought to Phoolpur in the name of the Samity are ultimately despatched to Bangladesh on an opportune time. He also contended that the plea of appellants (that is the plea of Babar Ali and Nurul Islam) that these goods are brought to Phoolpur for distribution to Samity members is disproved by the fact that the biggest weaver and ex-member and prominent persons of Phoolpur have stated in writing that huge quantities of cotton yarn of higher counts brought to Phoolpur to Bangladesh. He, therefore, stated that the conclusions reached by the learned Adjudicating Authority are proper and legal and the appeals may be dismissed. 12. In view of the rival contentions the points that arise for my determination are: (i) Whether the issue of a second show cause notice dated 16-12-1983 is illegal as contended by the appellants? (ii) Whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ditional Collector placed reliance on the statements of some prominent persons and an ex-member of the Samity to the effect that huge quantities of cotton yarn of higher counts are brought to Phoolpur in the name of the Samity which are ultimately despatched to Bangladesh at the opportune time. But the copies of such statements were not furnished to appellants. They were also not spelt out in the show cause notice. The order does not mention the names of those prominent persons or the ex-member of that Samity. This also has violated the principles of natural justice. 16. Another reason furnished by the learned Additional Collector was that the B.S.F. Personnel and Customs seized the goods with evidence supported by the independent witnesses of area of actual detection. But the names of those independent witnesses were not stated in the order. The copies of their statements were not furnished to the appellants and no mention of it was made in the show cause notice. This has prejudiced the appellants as they had no sufficient opportunity to meet the above evidence relied on by the adjudicating authority. The learned Additional Collector further stated in his order that the labels of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erned I have to find out whether the finding of the learned Additional Collector that the appellants attempted to export the seized goods to Bangladesh is legally correct. An attempt to commit a crime is an act done with intent to commit that crime and forming part of a series of acts, which would constitue its actual commision if it were not intercepted. The points at which the series of acts begins depend on the facts and circumstances prevailing in each individual case. The actus raus necessary to constitute an attempt is complete if the appellants do an act which is a step towards the commission of specific act of smuggling the goods to Bangladesh, which is immediately and not merely remotely connected with the commission of the act of smuggling them to Bangladesh. In order to constitute "an attempt" first there must be an intention to commit a particular offence, second, some act must have been done which would necessarily have to be done towards the commission of the offence and third, such act must be proximate to the intended result. The measure of proximity is not in relation to time and action but in relation to intention. In other words, the act must reveal, with reasona ..... X X X X Extracts X X X X X X X X Extracts X X X X
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