9911796707
TMI Blog1969 (4) TMI 115X X X X Extracts X X X X X X X X Extracts X X X X ..... ry from the godown of the said M/s Reliable Roadways. On the next day, i.e. on December 29, 1967, the customs authorities, therefore, raided the godown of M/s Reliable Roadways in Bombay and seized the 75 bars of silver which are the subject-matter of the present proceedings. It may be mentioned that the Court is not concerned, in these proceedings, with the 120 bars of silver which had been seized on December 28, 1967. The said M/s Reliable Roadways having furnished the name of the petitioner as the owner of the said 75 bars of silver, and having produced the bills in respect of the same which were seized from them by the customs authorities, a show cause notice dated April 11,1968 was served by the customs authorities on the petitioner as well as on the said M/s Reliable Roadways, its partners and its accountant. In the said show cause notice it was alleged that the said 75 bars of silver were intended to be illegally exported out of India. After the seizure of the 75 bars of silver, the customs authorities recorded the statement of the petitioner under Section 118 of the Customs Act, 1962, as well as the statements of several other persons, from which it appeared that the said 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said Act defines the term "export" as meaning "taking out of India to a place outside India", and Section 2(19) defines "export goods" as meaning any goods which are intended to be taken out of India to a place outside India. The relevant portion of Section 113 of the said Act is in the following terms ; 113. The following export goods shall be liable to confiscation :- (a) - (b) ... (c) ... (d) any goods attempted to be exported or brought within the limits of any customs area for the purpose of being exported, contrary to any prohibition imposed by or under this Act or any other law for the time being in force. There are several other clauses in Section 113 which follow the clause quoted above, but it is not necessary to refer to them for the purpose of the present case. It may be mentioned that Section 11 of the said Act empowers the Central Government to prohibit, either absolutely or subject to such conditions as may be specified in the notification, inter alia the export of goods of any specified description. It may also be mentioned that Section 114 of the said Act lays down that any person who does any act in relation, to any goods wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e has been an attempt to export the 75 bars of silver, and the finding of respondent No. 1 to that effect is based on surmise, suspicion and guess-work. As the facts necessary for the purpose of the decision of this case are not in dispute, but what is in dispute is the conclusion drawn from them by respondent No. 1, Mr. Sorabjee, very fairly, did not press the second of the above three grounds. Mr. Sorabjee also conceded that the third ground formulated by him as stated above is not an independent ground, but is really a part of the first ground, and the question that arises for my determination, therefore, is really only that which is embodied in the first ground. To put that question in the language of the law as laid down by the Supreme Court in various decisions, is the conclusion at which respondent No. 1 has arrived, viz. that there was an attempt to export the said 75 bars of silver by the petitioner, so manifestly erroneous that no reasonable person or reasonable judicial mind or legal mind could possibly have come to the conclusion to which respondent No. 1 came 1 It is also well-settled that, if the error of law complained of is an error of that nature and is apparent o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied upon an un-reported decision of the Supreme Court in Malhiat Singh v. The State of Punjab 2 (1968) Criminal Appeal No. 186 of 1966, from Punjab, decided on November 8, 1968 (Supreme Court) in which the offence charged was of attempting to export paddy outside the State of Punjab in contravention of an order promulgated by the Central Government under Section 8 of the Essential Commodities Act, 1955. The truck carrying the offending goods was actually stopped and seized before it crossed the border between Punjab and Delhi, and it was sought to be contended on behalf of the State of Punjab that there was an attempt on the part of the appellant to transport paddy to Delhi and, therefore, there was an attempt to commit the offence of export of the goods in question, Ramaswami J., delivering the judgment of the Supreme Court, stated that there was no substance in that argument, and that what had happened was merely a preparation to commit the offence in question. He then stated in the judgment that preparation oonsisted of devising or arranging the means or measures necessary for the commission of the offence, whereas an attempt to commit the offence was a direct movement towards t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the appellant was guilty of the offence of attempting to cheat the University. One of the contentions raised before the Supreme Court was that the facts proved did not go beyond the stage of preparation and did not make out the offence of attempting to cheat the University, but amounted merely to the accused making preparations to cheat the University. In regard to that, the Supreme Court observed (para. 12) that the question whether a certain act amounts to an attempt to commit a particular offence is a question of fact dependent on the nature of the offence and the steps necessary to take in order to commit it, and that no exhaustive precise definition of what would amount to an attempt to commit an offence was possible. After quoting with approval the decision and the reasons given for it by the learned Judges constituting the Division Bench of the Allahabad High Court in the case reported in In the matter of the petition of R. MacCrea (1893) I.L.R. 15 All. 173 Raghubar Dayal J. formulated the views of the Supreme Court on the point (para. 26) in the following terms : (26). We may summarise our views about the construction of Section 511, I.P.C. thus : A person commits the of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce could have been prevented by the voluntary act of that person himself. That is not what the Supreme Court has said in the final formulation of its views in para. 26 of the judgment in Abhayanand's case quoted above. Mr. Bhabha sought to make good this point by reference to the observations of Knox J., in In the matter of the petition of B. MacCrea at pp. 179-180 referred to above, but merely because the Supreme Court has in Abhayanand's case approved of the decision and the reasons given for it by the learned Judges in that case, I am not prepared to take the view that the decision in Abhyanand's case must be read as if every single word or observation in the judgments in the Allahabad case had been incorporated therein. In my opinion, the formulation of the definition of the term "attempt" by Raghubar Dayal J. in para. 26 of his judgment in Abhayanand's case does not lay down anything different from the classic definition of Sir Lawrence Jenkins in the case of Queen-Empress v. Luxman, or of Sir James Stephen which was adopted by the Supreme Court in the case of Malhiat Singh v. The State of Punjab, to both of which I have already referred. The result o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re made out in the name of the petitioner without mentioning his address or whereabouts. 6. In para. 5 of the affidavit filed in reply to the present petition, respondent No. 1 has stated that the petitioner had at no time given any relevant bona fide reason as to why he caused the said 75 silver bars to be shifted from his godown to the godown of M/s. Reliable Roadways, and later on in the same paragraph, he has stated as follows : This modus operandi clearly shews the petitioner's attempt to export the silver bars on 28-12-1967 ot thereabouts by delivering the silver bars to the Transport Company without receipts, without indicating destination and without buyer. This was done in order to avoid proof of documentary evidence with regard to the said removal and to enable the transfer of the silver bars out of India. The question which arises for my consideration is whether, on the facts admitted or proved which have been enumerated in the preceding paragraph, it is possible for any reasonable person to come to the conclusion to which respondent No. 1 has come, the basis on which he arrived at that conclusion having been explained by respondent No. 1 himself in para. 5 of his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent No. 1 in the affidavit in reply, it is not really open to Mr. Bhabha to make out for him the defence that he had based his decision on a ground which is exactly contrary to one of the grounds on which he has himself stated his decision to have been based. Moreover, having regard to the facts enumerated in the preceding paragraph, it is not unlikely that the petitioner had not given any instructions to M/s. Reliable Roadways in regard to the destination of the goods, either because it would not be safe for him to let them know his plans in advance for fear of those plans leaking out, or because the petitioner himself may not yet have decided where and how he would dispose of the said 75 bars of silver. I have, therefore, come to the conclusion that, on the facts admitted or proved in the present case, it is impossible to come to the conclusion that there had been any attempt to export as understood in law. 7. In the course of his arguments in the present case, Mr. Bhabha, however developed a new line which, frankly speaking, I find somewhat difficult to understand, or even to reproduce. His argument was that (1) export is a process ; (2) an "attempt to export" is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effect that the goods covered by the licence were not to be disposed of except in the manner provided by the licensing authority was a valid provision which came within the powers conferred by Section 8 of the said Act on the Central Government. The question was whether the provisions of cl, 5 of the Imports (Control) Order, 1955, were ultra vires Section 8(1) of the Imports and Exports (Control) Act, 1947, and the Supreme Court was not concerned in that case and, in fact, has not purported to give a general definition of the term "import", as Mr. Bhabha has sought to contend. What the Supreme Court was concerned with in that case was the ambit of the power conferred by Section 8(1) of the said Act, and not with the definition of the term "import" as such. The basic contention of Mr. Bhabha that export is a process, and not the mere act of taking out of the country, based on the decision of the Supreme Court in Abdul Aziz's case must, therefore, be rejected. Such a construction would be contrary to the plain language of the definition of the term "export" in Section 2(18) of the Customs Act, 1962, Apart from that, Mr. Sorabjee has cited a decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilt which lies on the prosecution or an authority in the position of the prosecution is concerned, the same never shifts and the prosecuting authorities are not entitled to rely upon Section 106 of the Evidence Act except in very exceptional cases and to a very limited extent. Moreover, if the facts admitted or proved in the present case cannot possibly amount to an attempt to export, no question of invoking the principle in Section 106, or of shifting of the onus of proof, or of the petitioner's failure to afford a satisfactory explanation, arises at all. In support of that contention Mr. Sorabjee has relied upon an un-reported decision of a Division Bench of this Court (C. T. A. Pillai v. Fidahussein Ghadially (1960) O.C.J. Appeal No. 66 of 1959, decided by Mudholkar and Shah JJ., on August 25, 1960 (Unrep.)) in which, inspite of the several circumstances listed in the judgment of the Division Bench, viz. that the respondent had made inconsistent statements, that he had not maintained proper accounts, that he was not able to produce purchase vouchers, that a large majority of the watches seized were brand new and the respondent was not able to account satisfactorily for being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eme Court Union of India v. Hariram Shamji Thakkar (1968) Civil Appeal No. 794 of 1967 decided by the Supreme Court on February 5, 1968 (Unrep.)) is that the rule of exhaustion of remedies does not bar the jurisdiction of the Court to grant relief under Article 226, but is a rule which Courts have laid down for the exercise of their discretion. That being the position, the question is whether I should, in the exercise of my discretion, decline to grant relief on this petition because the petitioner has not exhausted the alternative remedies to which Mr. Bhabha has referred. First and foremost, it must be stated that an objection of this nature should have been raised by Mr. Bhabha, if not at the time of the admission of the petition as stated in some of the judicial decisions on the point, at any rate, at the beginning of the hearing before me. I do not, however, propose to reject the said contention of Mr. Bhabha on that technical ground. As Mr. Sorabjee has pointed out, the alternative remedies of the petitioner under the Customs Act to which Mr. Bhabha has referred are all of an onerous nature and, at any rate, cannot be said to be equally efficacious remedies. The remedy by way ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
