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TMI Blog1984 (5) TMI 43X X X X Extracts X X X X X X X X Extracts X X X X ..... ty and the detaining authority came to the conclusion that the petitioner was indulging in and was abetting the smuggling of silver from India. On 14-5-1983 on an information the officers of the Directorate of the Revenue Intelligence, Bombay, intercepted one Dawood Ishak Merchant in an Ambassador Car No. MMD-8477 in a lane opposite Darpan Theatre at Andheri at 4 p.m. and found four packages containing silver bullion in the dicky of the car. The officers also recovered 86 similar packages from a wooden box containing silver bullion kept in an open garage where the aforesaid car had stopped. Having hauled all the silver investigation regarding its ownership was conducted and it was found that some of the silver pieces seized in this case had the markings of M/s. National India Bullion Refinery, Bombay, for short hereinafter called N.I.B.R. one Shri Durga Dass Mehra partner of M/s. N.I.B.R. in his statement, inter alia stated that they do not maintain piecewise particulars of silver bullion pieces which weigh less than 1 kg. and as such it was not possible to ascertain the parties to whom the silver bullion in pieces in the seized car had been sold by them. 4. During investigation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the two packets which were sold to the petitioner respectively weighed 30.2311 kgs. and 28.9474 kgs. Both these packets came from NIBR, Bombay. The marking on the first packet admittedly was electro 999 while the marking on the second packet was 9875. It would thus appear that out of the total haul of 90 packets the owenership of packet no. 1 and 3 was attributed to the petitioner on the basis that the silver found therein was marked as NIBR and it was shown to have been sold by the petitioner in his records to fictitious persons. The petitioner is also said to have made an attempt to persuade many parties to whom he had shown the silver having been sold to confirm the purchase of silver if there was any enquiry from the department. The court is not taken into confidence as to what investigation was done in respect of the other 88 packets and what investigations were done in respect of the garage wherefrom the silver was seized. The investigation formed its conclusion also on the basis of the fact that the sales shown by the petitioner were not genuine because the transactions are not against payments through cheque. On the basis of these facts and on verification of stocks the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or otherwise transferred such goods had been concerned in such illegal export : Provided that nothing in this section shall apply to petty sales of any specified goods if the aggregate market price obtained by such petty sales, made in the course of a day, does not exceed Rs. 2500/-." It would appear that the presumption raised under Section 11M of the Customs Act is rebuttable and this presumption can be raised only after affording an opportunity to the petitioner to prove that there was no justification for raising such a presumption. 7. In the first place Mr. Sibal submitted that it was unheard of to base a detention order on a rebuttable presumption of law. He wants us to examine whether it is permissiable to detain a person on the basis of such a presumption. -Relevant part of Section 11M of Customs Act says :- "It shall be presumed, unless the contrary is proved, that such goods have been illegally exported and the person who had sold or otherwise transferred such goods had been concerned in such illegal export." It would thus appear that the scheme of the Act seeks to prevent illegal exports. The object of the Customs Act, 1962 as such is similar to what is sought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that the sponsoring authority has not conducted the investigation as law and justice required of him. That may be so. There are more compelling reasons to support the view that this detention is based on totally non-existent material. A chain of circumstances during the course of investigation has been made the basis of presumption u/s 11M of Customs Act of 1962. One of those circumstances we have mentioned above. 9. The other circumstances are that the two packets namely packet Nos. 1 3 contained the same silver which had been purchased by the petitioner on the same day from M/s. Beam Corporation. This is so said on the basis of its marking NIBR. Admittedly, the petitioner did purchase silver with this marking but he had purchased silver of electro 999 purity. Before establishing a nexus between the petitioner and the seized silver it had to be shown that packet no. 1 contained silver of electro 999 purity. The sponsoring authority opened packet no. 1 and as many as forty samples were got tested at National Refinery Pvt. Ltd. But as per Assay Report none of the samples is of 999 purity. Mr. Handa says that such marginal difference in purity may have arisen due to testing b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g authority and the detaining authority has applied its mind to the material the Court should not interfere. 12. We may, however, state that it is equally well-recognized that the subjective satisfaction of the detaining authority is not wholly immune from judicial scrutiny. Court can examine whether the authority concerned has arrived at its satisfaction and if it finds that it has not done so, the condition precedent will be lacking and the exercise of the power would be bad. It is thus a duty is cast upon the court to examine the basic facts and materials which actually and in fact weighed with the detaining authority in reaching the requisite satisfaction. In the present case, it would clearly appear that the detention order is passed on a rebuttable presumption of law which came to be formulated on the basis of investigation by the sponsoring authority. In the present case we have seen that even though the petitioner made an offer to identify the five parties, no heed was paid to his offer at any stage. We have also taken note of the fact that the silver seized from the car was not of the purity that had been purchased by the petitioner and there was also difference in weigh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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