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4. Mr. Sorabjee for the petitioner has formulated the petitioner's challenge to the impugned order of respondent No. 1 dated June 29, 1968 in the form of three propositions which are as follows :

I. In law, there has been no "attempt" to export the goods, and in so far as respondent No. 1 has held that there was an attempt to export the 75 bars of silver, there is an error of law apparent on the face of the record ;

II. There has been a violation of the principles of natural justice in so far as it is settled law that proceedings before customs authorities relating to confiscation and penalty are quasi-judicial proceedings, and the party concerned has a right of cross-examination of the witnesses examined in the course of those proceedings;

III. There is no evidence at all in support of the conclusion that there 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 on the face of the record, the Court can interfere with the decision of the tribunal concerned, in the exercise of its supervisory jurisdiction under Article 226 of the Constitution. These propositions are too well-established by now to need authority.

I am also convinced that this preparation had already reached a stage where all that was required to be done was for his agents viz. Reliable Roadways, to engage a suitable vehicle at a suitable time, and to despatch the said silver to a pre-determined place for illicit export. The preparation having reached that stage, in my opinion, amounted to a clear attempt to export.

Mr. Bhabha has argued that the word "pre-determined" used in this passage in the impugned order shows that respondent No. 1 had, as the ultimate fact-finding authority, come to the conclusion that there had been some instructions given by the petitioner to M/s. Reliable Roadways in regard to the destination of the said goods. In my opinion, however, the word "pre-determined," in the context in which it is used in the said passage, only means "pre-determined by the petitioner in his own mind" and that position is made clear by the clarification which respondent No. 1 himself has given of his order in para. 5 of the affidavit in reply to which I have already referred above. He has stated in the said paragraph that his conclusion is drawn, inter alia, from the fact that the said 75 silver bars had been delivered by the petitioner to the transport company "without indicating destination." Indeed, in view of that position taken up by respondent 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 made when a person does any act in that process with the intention of attempting to export, an argument which, with respect to the learned Counsel, amounts to what is called "begging the question"; and (8) as soon as any such act is proved, on the principle underlying Section 106 of the Evidence Act, the onus shifts to the accused person to give a satisfactory explanation for that act, which he has not done and respondent No. 1 was, therefore, justified in arriving at the conclusion to which he came. Applying that argument to the facts of this case, Mr. Bhabha contended that the attempt in the present case commenced at the point of time when the petitioner shifted the said 75 bars of silver which fell within the definition of "export goods" in Section 2(19) of the Customs Act, 1962, to the godown of M/s. Reliable Roadways. He has contended that at that stage the goods were ready-packed for the purpose of export and in the process of export, and the finding of the Officer disbelieving the explanation offered by the petitioner was enough to shift the burden of proof on the petitioner on the principle of Section 106 of the Evidence Act. I am afraid, I cannot accept any of these steps in Mr. Bhabha's argument as laying down the correct position in law. His basic argument that export is not the mere act of taking goods out of the country, but is a process, is based on the analogy of the decision of the Supreme Court in the case of Abdul Aziz v. State (1968) 65 Bom. L.R. 699 S.C. in which, according to Mr. Bhabha, it was laid down that the connotation of the word "import" was not the mere act of bringing goods into the country, but extended to the subsequent dealing with the goods after they were brought into the country. I am afraid, the decision in Abdul Aziz's case cannot be construed in the wide sense in which Mr. Bhabha has asked me to interpret the same. The question in that case was a totally different question, viz., whether the power conferred under Section 3(1) of the Imports and Exports (Control) Act, 1947, was not restricted merely to prohibit or restrict imports at the point of entry, but extended to controlling the subsequent disposal of the goods imported, and whether the provision in Clause 5 of the Imports (Control) Order, 1955, issued thereunder empowering the licensing authority to attach a condition to the 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 of the Supreme Court in the case of B. K. Wadeyar v. Daulatram Rameshwarlal which arose out of a petition under Article 226 of the Constitution for quashing the assessment order and notice of demand issued by the Sales-tax Officer which were impugned in that case, the question being whether the sales had taken place "in the course of export" out of the territory of India so as to be exempt from the sales-tax. Referring to the definition of the term "export" in Imports and Exports (Control) Act, 1947, the Supreme Court laid down (para. 8), "Consequently the time of the export is when the ship with the goods goes beyond the territorial limits. At any rate, the export of the goods cannot be considered to have commenced before the ship carrying goods leaves the port," Mr. Sorabjee has contended that the said decision, therefore, lays down clearly that the term "export" connotes the actual taking out of the goods in question beyond the territorial limits of India. In my opinion, there can be no doubt about that position, having regard to the decision of the Supreme Court in Wadeyar's case as well as Section 2(18) of the Customs Act, 1962, Mr. Bhabha's further argument relating to the shifting of onus on to the petitioner, once his explanation in regard to the intention to sell the goods within India was disbelieved, which he stated was based on the principle of Section 106 of the Evidence Act, is somewhat strange and totally unacceptable to me. He sought to base that limb of his argument on a decision of the Supreme Court in the case of Krishan Kumar v. Union of India [1960] S.C.J. 1 and on the decision of the Calcutta High Court in the case of Shermal v. C. E. & L. C. Collector , but I am afraid, neither of those cases has any relevance on the question which I am now considering. It must not be forgotten that proceedings of the nature in question in the present case are penal in nature (Ambalal v. Union of India [1961] A.I.R. S.C. 264, at para. 5) and are quasi-criminal (Shanti Prasad v. Director of Enforcement ) and, as laid down in the latter of those two cases which was a case of breach of the Foreign Exchange Regulations Act, it is the duty of the prosecutor in such a case to make out "beyond all reasonable doubt" that there has been a violation of the law. As far as the general burden of proof of guilt 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 in possession of them, and a total ban on the import of watches which was in force at that time, the Court came to the conclusion that none of those circumstances pointed indubitably to the inference that the watches in question had been smuggled into India and that there was no prima facie evidence before the Customs Collector on the basis of which he could make the impugned order. Mr. Sorabjee relied upon a recent decision of the Calcutta High Court in the case of Manicklal v. Addl. Collector of Customs which was a case under the Sea Customs Act, 1878, in which Sinha J., in quashing the impugned order, observed that confiscatory proceedings under the Sea Customs Act were of a penal nature and were in the nature of criminal proceedings, that the rule relating to all criminal proceedings was that a criminal charge had to be established by the prosecution to the hilt and the burden of proof was never on the accused, and that that fundamental principle of burden of proof could only be varied by a statutory enactment. As Section 178A of the said Act was not applicable to the said case, the fact that the bills were not produced, or that the petitioner had failed to satisfactorily account for the acquisition, could not; raise any presumption against him. I agree with the observation of Sinha J. in the said case. In the result, I have come to the conclusion that there was no evidence at all before respondent No. 1 on which any reasonable person could have come to the conclusion that the petitioner had attempted to export the said 75 bars of silver, and the impugned order, therefore, suffers from an error of law apparent on the face of the record and must be quashed and set aside.