Customs, Excise and Gold Tribunal - Tamil Nadu
K. Babu Rao And Ors. vs Collector Of Customs on 17 December, 1985
Equivalent citations: 1986(8)ECR519(TRI.-CHENNAI), 1986(26)ELT766(TRI-CHENNAI)
ORDER S. Kalyanam, Member (J)
1. The revision applications filed before the Government of India have been transferred to the Tribunal under Section 131B of the Customs Act, 1962, hereinafter referred to s the Act, for being disposed of as appeals. Since the above appeals rise out of a common order, they are consolidated, heard together and disposed of by a common order.
2. The Additional Collector of Customs, Cochin, by his order No. VIII/10/5/79 Cus. Adj. dated 7-8-1981 found the appellants herein guilty is always d MUV; of the offence under Section 113 of the Act and imposed a penalty of Rs. 50,000/- on appellant Mohamed Irfan (appeal No. 165/82), Rs. 30,000/- on appellant Yogesh Shantilal Choksi (appeal No: 144/82), Rs. 5,000/- on Abdul Razak (appeal No. 166/82), Rs. 2,500/- each on Surendra Rao (appeal No. 145/82) and Babu Rao (appeal No. 96/82) and Rs. 1,500/- on Kaziz Ismail Bappu (appeal No. 146/82), besides absolutely confiscating 200 Kgs. of silver jewellery and articles and 95' Dirhams of UAE currency under Section 113(d) of the Act read with Section 13(1) of Foreign Exchange Regulations Act, 1973 and Section 3(2) of the Export and Import Control Act. On appeal, the Central Board of Excise and Customs by its order referred to 'supra, confirmed the same in all respects except setting aside the confiscation of 95 Dirharns of UAE currency, and the revision applications filed by the aggrieved parties have been transferred to the Tribunal for disposal as stated above.
3. The brief facts of the case are as under. On 5-11-1979 at about 3.30 A.M. the Preventive Officers of the Cochin Custom House, while conducting patrol duty on Cochin-Trivandrum main road, intercepted a tourist taxi bearing Registration No. KLZ 7551 between Eda-Cochin and Aroor. Appellants Mohammed Irfan, Yogesh Shantilal Choksi, Abdul Razak and Mohamed Hussain were occupants of the car, besides the driver, one C.P. Krishnan. The boxes and suit-cases found in the car were examined and were found to contain silver articles. Appellant Choksi produced a letter dated 3-11-1979 to the authorities, written in the letterhead of Choksi Shantilal Kalidas Gold, Silver and Jewellery Merchants, 35 Mumba Devi Road, Daguia Bazaar, Bombay-2 to M/s Shet Jewellers, C.H.5. Cross Road, Mangalore, wherein it was mentioned that 122 -Kgs. of silver ornaments and articles were sent through appellant Choksi for approval. The other occupants informed the authorities that they were from Bhatkal of North Kanara and were accompanying Choksi to Trivandrum. Choksi also had a reservation ticket No. A.B.. 3121.7 dated 2-11-1979 of Mohana Travels issued from Bombay for journey on 2-11-1979 at 9.30 P.M. by the air-conditioned luxury bus to Kolhapur, while a return ticket to Dubai by Kuwait Airways was found in the possession of Irfan. The appellants on questioning by the authorities admitted that the silver articles and jewellery were being taken to Trivandrum for subsequent removal to Dubai. The authorities entertaining a reasonable belief from the surrounding circumstances that the silver articles and jewellery were being attempted to be exported out of India, seized the silver and other documents under mahazar attested by witnesses, besides the appellants. The market value of 206 Kgs. of silver articles and jewellery seized was estimated at Rs. 4,94,488/-. The appellants and other goods under seizure and the car in question were then taken to the office of the Central Excise and Customs Collectorate, Headquarters, Cochin and a mahazar was also drawn up at 8 A.M. The appellants herein and the driver were examined by the authorities and their statements were reduced to writing. The statements recorded from the appellants were inculpatory in nature wherein they admitted that the silver articles and jewellery under seizure were being transported to Trivandrum for eventual export out of India. It is in these circumstances the authorities after further investigation, issued show cause notices to the appellants and others concerned which ultimately culminated in the impugned order now appealed against.
4. Shri Habibulla Badsha, the learned Senior Advocate for appellant Irfan led the case and exhaustively covered the case of the other appellants also and the learned advocates for the other appellants mainly adopted the submissions of Shri Habibulla Badsha, besides supplementing a few points here and there. The submissions made on behalf of the appellants could be summed up as under for purposes of convenience.
(i) Since the articles under seizure are silver articles and not silver million or coins, notification issued under Chapter IV-B of the Act relating to specified goods would not be applicable with the result the onus is clearly cast under law on the Department to prove the charge against the appellant under Section 113(b) and 114 of the Act.
(ii) The statements recorded from the appellant and others were assailed as not true and voluntary. Even if the statements were held to be true and voluntary since they were subsequently retracted, they would have no evidentiary value unless there is corroboration in material particulars as per law.
(iii)When initially the silver articles in question were seized and a mahazar drawn up on 5-11-1979 at about 3.30 A.M., the drawing up of a subsequent mahazar at 8 A.M. for the same seized goods would have no relevance and such a mahazar is deliberately brought into existence only to incorporate certain incriminating averments of a confessional nature against the appellants which would indicate that the confessional statements alleged to have been recorded from the appellants on 5-11-1979 were not actually recorded them.
(iv)The appellants were produced for remand only on 8-11-1979 and therefore, the appellants who were taken into custody on 5-11-1979 itself were coerced into giving statements against their interests and such inculpatory statements should be rejected as not voluntary. The very fact that the appellants were detained from 5-11-1979 and kept under the control and custody of the authorities till 8-11-1979 would show that no inculpatory statement was recorded from the appellants on 5-11-1979 and it is only after prolonged custody, under threat, promise or undue influence such statement could have been brought into existence.
(v) The Board having found that "it Is quite likely that some sort of persuasion was involved in the statement recorded from Irfan", should have rejected the inculpatory statement recorded from appellant in toto as not voluntary.
(vi) Assuming the worst for the appellants, the act of the appellants would only amount to preparation and not attempt -within the meaning of Section 113 of the Act and therefore the appellants should have been exonerated of the charges levelled against them.
The learned counsel cited a number of authorities which we shall advert to at the relevant place.
5. (i) The learned SDR submitted that export of silver articles being prohibited under law and the offence being an economic offence, the evidence and surrounding circumstances should be liberally construed in favour of the Revenue and likewise the word 'attempt' occurring in Section 113 of the Act should be comprehensively construed and liberally interpreted so as to take within its ambit a situation as the one that obtains in the case and should not be confined to the straight jacket of a narrow and strict construction as for offences under the Indian Penal Code. He further submitted that while the term 'attempt' occurring in the Indian Penal Code is directed against a person, it relates under the Customs Act to goods proceedings in respect of which are proceedings in rem under law in contradistinction to proceedings in personam under the Indian Penal Code.
(ii) The criticism on the second mahazar as legally invalid is untenable and the preparation of a second mahazar was necessitated by reason of lack of facilities at the original place of seizure at about 3.30 A.M. in the early hours of the morning. The learned SDR contended that the second mahazar is a detailed one and the inculpatory confessional averments set out therein against the appellants would not detract from its admissibility or acceptability even if a second mahazar is irregular in law.
(iii)The statements recorded from the appellants are clearly inculpatory in nature and confessional in character and have been proved to be true and voluntary and the retraction of the same being belated, the original statements have been rightly accepted and acted upon under the impugned order. He also urged in this context that there was no demur or complaint on the part of the appellant before the Judicial Magistrate at the time of remand regarding the confessional statements.
(iv) The learned SDR further urged that the silver articles were being transported for an eventual export out of India as baggage through persons travelling from Trivandrum to Dubai and such a course was neither inconceivable nor improbable - a modus operand! normally resorted to by smugglers.
(v) With reference to certain discrepancies or contradictions brought out in the various statements recorded from the appellants by the learned counsel for the appellant, the learned SDR submitted that such discrepancies immaterial in nature and would only show that they are natural and tutored.
(vi) With reference to the Board's remarks "it is quite likely that some sort of persuasion was involved in the statement recorded from Irfan", the learned SDR submitted that such a remark was "unwarranted" and "uncalled for" on the part of the Board.
6. We have carefully considered the submissions of the parties herein. The primary and fundamental question that arises for our consideration at the outset is whether the materials on record substantiate a charge against the appellants that they attempted to export silver within the meaning of Section 113 of the Act entailing confiscation. The silver articles under seizure are not covered by notification relating to specified goods issued under Chapter IV-B of the Act and this position is conceded by the Department. Therefore, under law the onus is on the Department to prove the charges against the appellants. The main attack of the learned counsel for the appellants was that the inculpatory statements recorded from the appellants were not true and voluntary. The appellants were intercepted in the early hours on the morning of 5-11-1979 and were produced for remand only on 8-11-1979. If really the statements had been recorded from the appellants on 5-11-1979 itself, it does not stand to reason as to why they should have been remanded only on 8-11-1979. The appellants admittedly did not belong to the place where the seizure was effected and as such, in a situation where the authorities had reason to believe that the silver articles under seizure were eventually meant for illegal export out of India, one would expect them to arrest the appellants immediately and take such proper actions as are available under law. If the case of the Department that immediately on seizure of the articles on 5-11-1979, statements of the appellants which are inculpatory in nature have been recorded, it does not stand to reason at all as to why the appellants were not immediately arrested and produced for remand. If the circumstances show that the appellants could have been under the custody and control of the Customs Officers from 5-11-79 till 8-11-79, then the statements recorded from persons in the course of such prolonged detention, custody or control would be liable to be discarded and rejected brevi manu as not true and voluntary. The Additional Collector in the original order has observed:
"The counsels for the defendants also made a plea that the occupants of the car were detained by the departmental officers illegally from 5-11-1979 to 8-11-1979 and their statements were obtained under threat and coercion. But during cross-examination the chief detecting officer of the case denied the charges. Though the allegation raised is rather of a serious nature, no concrete evidence had been let in on behalf of the parties to show that the occupants of the car were illegally detained by the Customs officers".
It is not the case of the Department that they had any further investigation to do in respect of the above appellants from 5-11-1979 to 8-11-1979. To a specific question from the Bench the learned SDR was not able to answer as to why the appellants were not arrested and remanded to judicial custody immediately. It is relevant to incorporate the observations of the Board in this context. The Board under the impugned order has observed:
"It is quite likely that some sort of persuasion was involved in the statement recorded from Irfan. It may be that he was not really allowed to go away in full liberty on the 5th November and he might have been ' hanging around in the place where his statement was recorded and that might be on 8th November".
It is obvious that under the impugned order the Board itself was very much exercised over this sensitive part of the case and felt obliged to make an observation as the one extracted above. If the Board had thought that the confessional statements might have very well come into existence on 8-11-1979 and that appellant Irfan was not really allowed to go away in full liberty on 5-11-1979, as a matter of logical corollary, it should have rejected in toto the entire confessional statement as tainted and brought about under circumstances of prolonged official detention, or custody or control. Time out of number the Supreme Court and the High Courts have pronounced upon such a situation that such a statement would be hit by principles of Section 24 of the Evidence Act and have emphasised that notwithstanding the admissibility of confessional statements, Court should consider their acceptability as true and voluntary. The learned SDR characterised the observation of the Board extracted above as "unwarranted" and "uncalled for". Such characterisation, in our opinion, would not in any way answer the issue arising for determination. The fact that the appellants did not complain to the Judicial Magistrate at the time of 'remand would not ipso facto make the confessional statements true and voluntary. In a similar situation, this Bench in appeal No. C(T) 197/82 and C(T) 107/82, in the case of K.I. Pavunni v. Collector of Customs <5c Central Excise, Cochin, 1985 (22) E.L.T. 913 (Tribunal) to which we are both parties has taken the view that such statements recorded keeping a person in prolonged official detention or custody or control should be rejected as not voluntary. Though not cited at the Bar, it will be useful to refer to the ratio decidendi in a full Bench of the Madras High Court in the case of "Roshan Beevi and Ors. v. Joint Secretary to the Government of Tamil Nadu, Public Department (Law and Order) and Ors.", reported in 1984 (15) E.L.T. 289 (Mad.), wherein the High Court quoting from the Corpus Juris Secundum has observed that when the word 'custody' is applied to persons, it implies restraint and may or may not imply physical force sufficient to restrain depending on the circumstances. The full Bench of the Madras High Court has also referred to the case of "Nathu v. State of Uttar Pradesh", reported in AIR 1956 S.C. 56, wherein the Supreme Court has held that prolonged custody may stamp the confessional statement so obtained as involuntary one, and the intrinsic value of such a statement may be vitiated. No doubt, the question relating to prolonged custody is always a question of fact in the circumstances of a particular case.
The Supreme Court while considering the import of the word 'custody' in the context of Section 439 of the Code of Criminal Procedure, in the case of Niranjan Singh v. Prabhakar, AIR 1980 SC 785, felicitously observed as follows:
"No lexical dexterity or precedential profession is needed to come to the realistic conclusion that he who is under the control of the court or in physical hold of an officer with coercive power is in custody for the purpose of S. 439. This word of elastic semantics and its core meaning is that the law has taken control of the person. Equivocatory quibblings and the hige-and-seek niceties sometimes heard in court that the police have taken a man into informal custody but not arrested him, have detained him for interrogation but not taken him into formal custody and the other like terminological dubieties are unfair evasions of the straightforwardness of the law".
The Supreme Court in the case of "Shankaria v. State of Rajasthan", reported in (1978) 3 SCC 435, while dealing with judicial confession recorded under Section 164 of the Code of Criminal Procedure held that a confession must be proved to be perfectly voluntary and this condition is a sine qua non for its very admissibiiity in evidence. If the confession appears to the court to have been caused by any inducement, threat or promise, such as is mentioned in Section 24 of the Evidence Act, it must be excluded and rejected brevi manu. Therefore, according to the Supreme Court any confession should satisfy a double test viz. (1) it should be perfectly voluntary and (2) it should be true and trustworthy. If the voluntary nature is suspect, the second test would not arise at all for consideration.
7. In the absence of any explanation on the side of the Department as to the kind of investigation which necessitated the appellants herein to remain in Cochin from 5-11-1979 to 8-11-1979 we are constrained to hold, in appreciation of the factual background of this case, that the appellants should have been kept in a state of unofficial detention or custody or control from 5-11-1979 to 8-11-1979 and the statements confessional nature coming into existence during such a period would be squarely hit by-the principles of Section 24 of the Evidence Act. We therefore hold that no reliance could be placed on the so-called confessional statements of the appellants which, in our opinion, could not have been voluntary. We are fortified in this conclusion by yet another circumstance in this case. After the seizure of the articles under mahazar in the early hours of the morning on 5-11-1979, a second mahazar has been drawn up on the same day at about 8 A.M. Mahazar is merely a contemporaneous document evidencing seizure of incriminating articles and goods. In the instant case the second mahazar is eloquent about the admissions made by the appellants about their guilt and we do not find any justification at all for drawing up a second mahazar unless it be that the Department felt the necessity of incorporating certain averments inculpatory in character and confessional in nature and attributing the same to the appellants. If really, as contended by the Department, confessional statements had been recorded from the appellants on 5-11-1979, it does not stand to reason as to why incriminatory statements of admission should be incorporated in a document like mahazar in the context of this case. The logical conclusion is inescapable that at the time when the second mahazar was drawn up the statements were not in existence and possibly were not forthcoming. The explanation of the Department that for lack of facilities and by reason of the seizure having been effected at an odd hour in the early hours of the morning, the Department was obliged to draw up a second mahazar with greater details seems too artifical to pass muster with us. It should be noted here that originally the learned SDR faintly attempted to explain away the position by stating that originally the goods were merely detained and it is only by a later mahazar the goods were seized, but had to give up that plea after it was brought to his notice that even under the original mahazar it has been categorically stated that the silver jewellery, the taxi car KLZ 7551, the foreign and Indian currencies, with the passengers were detained under Section 110 of the Customs Act, 1962 for further investigation. Evidently, the second mahazar is also one for the same seizure under Section 110 of the Act and there cannot obviously be a second seizure of articles already seized. In the earlier mahazar it is stated that the occupants of the car informed the authorities that the silver ornaments weighing 122.5 Kgs. were being transported to Trivandrum for sale and that they were coming from Bombay via Koihapur, Bhatkal, Mangalore and Calicut. This would clearly show that immediately on 'seizure the occupants came forward with a version that silver articles under seizure were being taken to Trivandrum only for purposes of sale. Surprisingly at about 8 A.M. when a second mahazar was drawn up, which in our opinion is sheer exercise of superfluity by authorities, the appellants are alleged to have made a statement confessing to an act of transporting silver to Trivandrum for taking them out of India to Dubai. The statements alleged to have been made by the appellants on the spur of the moment immediately on seizure are admittedly exculpatory and we are at a loss to understand as to why the appellants should make a volte-face within hours and confess to the authorities of transporting silver articles for illegal export out of India. Indeed, the Additional Collector has himself observed in the original order that "I agree with the counsel that for all practical purposes this document (first mahazar) should serve as the basic document of this case i.e. seizure mahazar". Referring to the exculpatory version of the first mahazar and inculpatory version in the second mahazar, mutually repugnant to each other, the Additional Collector has observed:
"During cross-examination, the Chief detecting officer of this case did recognise the divergence in the depositions of the occupants of the car as conveyed in the first document and the second document. No doubt he did not choose to clarify this divergence. During cross-examination he said that both stands as deposed by the occupants of the car are incorporated in the first and second document and the Department has not tried to project its stand. At the outset I am of view that what the occupants of the car choose to say in regard to the presence of large quantities of silver articles and ornaments should have found a place in their statements and not in the mahazar. The fact that the original deposition made immediately after the interception of the car was there in the first document and on detailed interrogation they blurred out more details in regard to the transport of large quantities of silver ornaments in the second document itself showed that the Department cannot be blamed for suppressionveri and suggestio falsi." (ipsissima verba).
Therefore, in the peculiar circumstances and factual background of this case, the second mahazar is totally uninspiring and would appear to be motivated against the appellants.
8. In view of the fact that we have already held that the confessional statements recorded from the appellants are not voluntary, the importance of retraction of the same and its legal consequences would be purely academic and we do not therefore feel called upon to traverse the same.
9. The other important aspect of the case on which the parties herein joined issue is with reference to the meaning and legal connotation of the word 'attempt' occurring in Section 113 of the Act and whether the circumstances of the case would bring the appellants within the mischief and ambit of "attempt" as envisaged by Section 113 of the Act. The learned counsel for the appellants placed strong reliance in the ruling of the Supreme Court in the case of State of Maharashtra v. Mohd. Yakub and Ors., reported in AIR 1980 SC 1111 and contended that on the ratio of the said Supreme Court case, the circumstances of the present case would at the worst only make for preparation to commit an offence an offence and not attempt to commit an offence. The learned SDR, on the other hand, submitted that the word "attempt" should be liberally construed, particularly when the word occurs in statutes like the Customs Act dealing with economic offence and should not be narrowly construed, as is done in respect of offences under the Indian Penal Code. As the Supreme Court has held "attempt" is a mixed question of law and fact, depending largely on the circumstances of the particular case it defies a precise and exact definition. Broadly speaking as explained by Supreme Court, all crimes which consist of the commission of affirmative acts are preceded by some covert or overt conduct which may be divided into three stages viz., the first stage when one first entertains the idea or intention to commit the offence; the second stage, when he makes preparation to commit the offence and the third stage when he takes deliberate overt steps to commit the offence. Such overt act or step need not be the penultimate act towards the commission of the offence but is sufficient if such act or acts were deliberately done and manifest a clear intention to commit the offence aimed, being reasonably proximate to the consummation of the offence (emphasis applied).
10. The Supreme Court in the aforesaid Ruling dealt with a case where the officers on receipt of some secret information that silver would be transported in a jeep and truck, kept a watch and during midnight when they sighted the same, followed them. The two vehicles halted near a bridge at Kaman creek and bundles, small and heavy, were removed from the truck and were kept on the ground and the Customs officers rushed to the spot accosted the persons when they heard the sound of the engine of a mechanised sea-craft from the side of the creek was heard. Number of silver ingots were found concealed in the truck and jeep and four ingots were 'found lying near the foot-path leading to the creek. The driver and the cleaner when questioned gave false names and addresses. Moreover they were also not dealers in silver. It is in such a factual background the Supreme Court held that the series of acts committed by the accused went beyond the stage of preparation by their act of moving the contraband goods deliberately to the place of embarkation, such act being reasonably proximate to the completion of unlawful export. It was also found in that case that beyond the stage of preparation, most of the steps necessary in the course of export by sea has been taken. The only step to be taken towards the export of silver was to load it on a sea craft for moving out of the territorial waters of India. But for the intervention of the officers of law, the unlawful export of silver would have been consummated.
11. In the instant case, admittedly the seizure was effected in a place near Cochin more than 100 miles from Trivandrum. Even if the appellants were actuated by an intention to transport silver out of India and were taking the same towards that objective to Trivandrum, it is not unlikely or improbable that they could change their mind and revert back. Therefore, assuming the worst for the appellants in the instant case, the appellants could be said to have merely intended to commit the offence and made preparations towards the commission of the same. As the Supreme Court has pointed out attempt begins where preparation ends.
12. In the ruling of the Supreme Court cited supra. His Lordship Justice Chinnappa Reddy concurring with His Lordship Justice Sarkaria who spoke for the Bench has observed:
"For instance, in the instant case, had the truck been stopped and searched at the very commencement of the journey of even at Shirsat Naka, the discovery of silver ingots in the truck might at the worst lead to the inference that the accused had prepared or were 'preparing for the commission of the offence."
(emphasis applied).
13. The learned counsel for the appellants also 'placed reliance on the ruling of the Supreme Court in the case of "Nasu Sheikh and Ors. v. The State of Bihar," reported in AIR 1972 Supreme Court 1610. That was a case that arose under the provisions of the Essential Commodities Act, 1955 and the appellants therein were carrying 64 maunds of paddy in seven bullock carts which were intercepted by the Assistant Sub-Inspector while they were 75 yards from the border of West Bengal. Bihar Foodgrains (Control Movement) Order, 1957 read with Essential Commodities Act prohibited export or attempt to export of foodgrains except under and in accordance with the permit issued by the State Government. The Supreme Court held "the question of distance assumes importance in the light of the decision of this court in Malkiat Singh v. State of Punjab - AIR 1970 SC 713. In that case also the question was whether an offence had been committed under Section 7 of the Essential Commodities Act read with paragraph 3 of the Punjab Paddy (Export Control) Order, 1959. It was held that as the paddy was seized while inside the Punjab boundary there was no export of paddy outside the State of Punjab. It was observed that it was possible that the appellants might change their mind at any time between the place of seizure and the State Boundary".
14. Reliance was also placed by the appellants on a recent ruling of the Madras High Court in the case of Ranjit Exports Private Ltd. v. Collector of Customs, reported in 1985 (21) ELT 353 (Mad.), 1985 Vol. 5 Excise & Customs Cases, Page 150, wherein His Lordship Justice Nainar Sundaram has comprehensively covered the case law bearing on the subject. In that case the petitioner therein filed four shipping bills covering 41 bales of silk fabrics of various varieties for export. The shipping documents were prepared and the goods were shown to the Central Silk Board authorities for certifying as to the correctness of the description in the invoices. Out of the 4-1 bales two bales were brought inside the Custom examination area and on inspection of the goods it was found that the goods were dupion silk fabrics as against the description in the shipping bill, viz. "Handioom natural silk fabrics made of 100% mulberry raw silk filature reeled yarn other than dupion". Since the inspection revealed that the goods were not in accordance with the declaration in the shipping bill, the petitioner therein did not tender the 39 bales for export and instead requested for cancellation of the other shipping bills. The Custom authorities suspecting that the contents of the other 39 bales covered by the shipping bills would not be in accordance with the declaration in the shipping bills and invoices, searched the petitioner's premises at Madras and learnt that the 39 bales had already been sent to Madras Central station for onward despatch to Calcutta. The learned Judge held that such a situation would only amount to preparation and fall short of attempt.
15. We fully appreciate and are conscious of the fact that smuggling is an anti-social activity which impairs the financial and economic stability of the country and the penal provisions of the Customs Act have been enacted to suppress the evil of smuggling and therefore a narrow interpretation of the word "attempt" has to be eschewed and the provisions should be construed in such a manner which would suppress the mischief, permit their objective, prevent their subtle evasion and foil their circumvention. Nevertheless, it cannot be gainsaid that law does make a distinction between preparation and attempt under the provisions of the Act and the distinction, though fine, is indeed appreciable. The ratio of the above rulings, in our opinion, would apply squarely to the instant case and having regard to the facts of the present appeals we are of opinion that there is no actus reus which would constitute an attempt under law and the appellants being 100 miles away from Trivandrum there is always a locus poenitentiae.
16. In our considered opinion the act of the appellants would merely be at the stage of preparation failing short of attempt to export silver and since preparation to commit the offence of exporting silver is not punishable under the Customs Act, we are inclined to hold that the charges under Section 113 and 114 of the Act have not been brought home against the appellants.
17. On an analysis of the evidence on record we cannot help taking note of certain circumstances which on grounds of sheer probabilities would militate against the Department's view. According to the Department and as per the show cause notice, the proposed design of illicit export of the silver articles was sought to be executed through C.D. George. But C.D. George, in his statement dated 8-11-1979 as well as the additional statement dated 14-11-1979 recorded under Section 108 of the Act has not given any inculpatory statement, much less has implicated the appellants herein in the alleged illegal export of silver through his help. We should confess, indeed we are surprised that the Board should have observed in the impugned order that "as Irfan, Choksi, Abdul Razak, Kazia Ismail Bappu and C.D. George have ail accepted their roles in the attempt at unauthorised export...". Such an observation relating to C.D. George is factually incorrect and the same is also highlighted by the learned counsel in the course of his submissions. When C.D. George has to play a vital and important role in the fruition and completion of the illegal act of exporting silver out of India the exculpatory statement of C.D. George would leave a big lacuna in the entire investigation and this conspicuous and vital missing link leaves a great doubt in our mind. What was the modus operandi of export that was decided upon by the appellants herein in conspiracy with C.D. George is a most vital aspect of the case on which there has been no proper investigation at all. When C.D. George has totally disowned in his statement the role attributed to him to arrange for export of the silver articles from Trivandrum, the Department should, in our opinion, have probed further into the matter and collected some more information as to who are the authorities and Custom officials who are hand in glove with C.D. George for being privy to the illegal act of smuggling silver out of the country.
18. The charge against appellants Babu Rao, Surendra Rao and Kazi Ismail Bappu is one for abetment attracting penal action under Section 114 of the Act. So far as appellants Babu Rao and Surendra Rao of Mohana Jewellery are concerned the mere giving of 30 Kgs. of old silver jewellery to Mohd. Irfan of Bhatkal for approval would not be a circumstances on the basis of which, they could be charged as abettors in the commission of the offence within the meaning of Section 113 of the Act. So far as appellant Kazia Ismail Bappu is concerned, the finding of the Additional Collector in the order of adjudication that in his statement dated 7-11-1979 and 20-11-1979, Kazia Ismail Bappu has admitted his involvement in the transaction is not factually correct. It is unfortunate that the original authority has not analysed or considered as to what kind of involvement of appellant Kazia Ismail Bappu is proved by the evidence and how he is liable as an abettor. A perusal of the statements of Kazia Ismail Bappu dated 7-11-1979 and 20-11-1979 would not show anything more than a mere fact that he, being a relative of Mohd. Irfan, was entrusted with 10 Kgs. of silver ornaments on 30-10-1979. Indeed the concluding part of his statement dated 20-11-1979 is to the effect that when he enquired Mohd. Irfan earlier as to why he was buying silver like this, he told him that it was for being taken to Bombay for disposal. We are indeed surprised that the Board in the impugned order should have observed that "Irfan, Choksi, Abdul Razak, Kazia Ismail Bappu and C.D. George have all accepted their roles in the attempt at unauthorised export". Such a finding in the original order as well as the appellate order has no basis or warrant on facts. We therefore hold that the charge of abetment against appellants Babu Rao, Surendra Rao and Kazia Ismail Bappu has not been made out.
19. On a careful consideration of the entire evidence and materials available on record we hold that the charges against the appellant have not been proved. Accordingly the appeals are allowed.