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6. Shri Pochkhanwala, the learned Advocate of the appellant Bhanabhai Khalpabhai Patel (hereinafter referred to as B.K. Patel) submitted that the truck was intercepted by Special Reserve Police and they did not find any silver slabs. Even according to the Department number of silver slabs recovered were 101 but the truck in question was stated to have transported only 20 slabs. No investigation was carried out as to who brought the remaining 81 bars seized in the case. The appellant was implicated solely on the ground that the wadi belonged to him. But then the appellant was not the owner of the wadi. It stood in the joint names of his wife and others. Shri Pochkhanwala further submitted that there was no evidence whatsoever that the appellant transported the silver bars or attempted to export them. Thus the appellant committed no offence. In the circumstances no penalty could be imposed on the appellant. It was also contended by Shri Pochkhanwala that the proceedings before the customs authorities is a quasi-criminal and the appellant had a right to cross-examination of witnesses but such a right has been denied and therefore there had been denial of principles of natural justice and as such the order passed by the Collector is illegal. It was also submitted by Shri Pochkhanwala that nexus between the appellant B.K. Patel and the seized silver had not been established. There was not even an iota of evidence to establish that the silver belonged to the appellant or he was in any way concerned with the seized silver. No witness has stated that the silver belonged to the appellant. On the other hand the evidence was that anybody could have access to the wadi. Shri Pochkhanwala then submitted that there is a clear distinction between attempt and preparation. Evidence at best established preparation for the export of the silver slabs and the evidence did not establish an attempt to export silver. In the said circumstances no penalty can be levied on the appellant, as no act or commission of his rendered the seized goods liable to confiscation. Shri Pochkhanwala in support of his contention relied upon a decision of the Bombay High Court reported in 1972 B.L.R. page 575 Yusuf Patel v. R.N. Shukla. Finally, Shri Pochkhanwala submitted that there was no rhyme or reason for the imposition of penalty. The Collector had imposed a penalty of Rs. 7,500/- on the driver, Rs. 4,000/- on the cleaner who have transported the silver slabs to the wadi. The Collector has imposed penalty of Rs. 7,500/- on the owner of the truck through which the silver was transported, whereas he had imposed a penalty of Rs. 25,000/- on the appellant without there being any evidence that silver in question was transported by him or attempted to be exported by him, but only on the ground they were found stored in the wadi which also did not belong to him. He, therefore, prayed that the penalty imposed on the appellant may be set aside.

8. I have carefully considered the submissions made on both the sides. Having regard to the rival contentions the points that fall for determination in these two appeals are :-

(i) Whether the imposition of penalty on the two appellants in the facts and the circumstances of the case was unjustified; and

(ii) Whether the order of confiscation of the truck bearing No. MHT 2304 is illegal.

9. Before I proceed to consider the points set out above, let me proceed to consider the orders passed by the Collector as well as by the Board. Under the heading "findings" the Collector has discussed the liability of the two appellants for penalty under Section 114. The Collector has observed that the evidence of the driver, Benichand clearly establishes that Shri B.K. Patel was acquainted with J.L. Sharma, the employer of the driver. Further according to the driver's statement his master had instructed him to halt the said truck at Panchkuva at Ahmedabad and that the truck should be given to the bearer of the chit and the truck was in fact given to the bearer who produced the chit bearing the signature, of Sharma. Further the two bills seized contains the address of Karimbhai, Crawford Market and the driver's evidence that it was Karimbhai who produced the chit and took the truck and brought back loaded with silver and berries. Further Shri B.K. Patel in his statement dated 16-5-69 admitted that one white Ambassador Car was lying in his wadi. He had further admitted that he bought this car from Bombay from one Karimbhai. Shri Benichand the driver in his statement has given the number of the white car as MRY 8971. Hence there is every reason to hold that irrespective of whether or not the place from where these 101 slabs of silver were recovered belonged to Bhanabhai Khalpabhai Patel who is concerned in the transport of 101 slabs of silver to that wadi without requisite transport voucher as required under Section 11K of the Customs Act, 1962. The Collector further observed "he, therefore, did at least about the doing or omission of such an act which rendered the said 101 slabs of silver liable to confiscation under section 113(1) of the Customs Act, 1962. I, therefore, further hold that since there is a prohibition not to transport the said silver in the specific area without the possession of required transport voucher during the carriage of the said silver the goods in respect of which the act or omission was done was imposed under Section 11K of the Customs Act, 1962. I, therefore, hold that Shri Bhanabhai Khalpabhai is liable to penalty under Section 114(1) of the Customs Act, 1962 and since quantity of silver so transported is huge and the place wherefrom the silver was recovered is so abnormal as to raise the conclusion that that silver was the export goods and was in the process of exportation to a place outside India as a part of execution of well planned conspiracy to smuggle huge silver out of India, I hold that he is liable to a penalty under Section 114(1) of the Customs Act, 1962. The evidence of other witnesses viz. Shri Shankarbhai Haribhai, Shri Manubhai Bhanabhai and Shri Abubakar Ibrahim are also hinting in that direction". I may pause here and point out that the driver of the truck except stating that the truck was taken to the wadi of Bannana had not stated that there was any instructions from his master to take the truck to that wadi or that B.K. Patel had come to take the truck or got loaded the silver slabs into the truck. The cleaner of the truck also did not implicate B.K. Patel. According to the statement of the driver it was one Karimbhai who produced the chit bearing the signature of his master and the number of truck and to him he handed over the truck and that Karimbhai brought back the truck loaded with silver and 62 bags of berries and thereafter at the instructions of Karimbhai he took the truck to the wadi of Bannana. During the investigations the statement of Karimbhai was recorded. Karimbhai did not implicate B.K. Patel. He also did not state that he took the truck producing the chit and got loaded with silver slabs. The other witness from whose statement the Collector relied also did not state that the silver slabs were got transported by the appellant B.K. Patel. No investigation was made wherefrom the remaining 81 slabs were brought or who brought them or when they were brought. All that the Department was able to establish was that 101 slabs were found in the wadi which according to the Department belonged to the appellant though the appellant contended that it was the wadi of his wife and some others. Even assuming that slabs were found in the wadi of the appellant, that by itself would not be sufficient to prove that they were transported to the wadi by the appellant in violations of provisions of Section 11K of the Act. Therefore that part of the finding of the Collector is based, more on assumption than on evidence. Similarly, the Collector's finding that because of the huge quantity of silver and the place where it was kept and the manner in which it was kept raises the conclusion that the silver was to be exported and was in the process of export is also not based on evidence. Admittedly all the 101 slabs of silver were found hidden underneath the earth near a well in the wadi. The Department was able to establish that this wadi. was situate within 50. kms. on the coast, but that would not be sufficient to establish that there was an attempted export. There is considerable force in the contention of Shri Pochkhanwala that there was only preparation to export and not attempt. In the decision relied upon by Shri Pochkhanwala the Bombay High Court had ruled that "an accused person commits the offence of "attempt" to commit a crime when, with the intention of committing that crime, he does an act or acts which constitute a direct movement towards its commission, but the actual commission of the crime is frustrated by reason of the fact that it is interrupted by circumstances independent of his volition. Such act need not, however, be the penultimate act towards the commission of the crime". In the judgement of the Bombay High Court referred to above the following facts were established :-

His Lordship Mr. Justice Vimadalai observed "in my opinion the facts enumerated in the preceding paragraph, whilst they may show that the petitioner intended to deal in some improper manner with the said 75 bars of silver, are perfectly consistent with such improper dealing being within the country, and there was no evidence at all before respondent No. 1 to show that the petitioner's acts amounted to a direct movement towards the commission of the offence in question, viz., that of exporting the said 75 bars out of the country. It was, therefore, not possible for any reasonable person to come to the conclusion, on those facts, that the said 75 bars of silver were attempted to be exported by the petitioner out of the country." It is thus seen that inspite of the evidence regarding the purchase, sending of the goods without vouchers and storing in some other godown, still the High Court did not find it possible to hold that there was an attempt to export silver. In the present case all that the Department was able to establish was that 101 slabs of silver were found hidden in the wadi belonging to appellant B.K. Patel. Even that is accepted as true, it would not be sufficient to hold that there was an attempted export of silver by B.K. Patel. It was quite possible B.K. Patel might have allowed his wadi being used for storage of silver by someone who wanted to export. The Department did not secure any evidence to establish whether B.K. Patel had resources to acquire 101 slabs of silver. As stated earlier, there was no evidence also as to wherefrom these silver bars were brought to the wadi. In the circumstances the Collector's finding both regarding transport without voucher and attempted to export silver by the appellant appears not based on any satisfactory evidence. The Board did not give any other reason to uphold the finding of the Collector. On the other hand, the Board's observation was "the evidence disclosed in the orders appealed against, clearly establish the interest of the appellant, which also establishes beyond any reasonable doubt that the silver in question had been concealed underground only with the objective of its unauthorised export". So the finding is not that there was an attempted export but it was concealed with the object of unauthorised export. An offence of violation which is penalised under law is not concealing but an attempt to export and therefore no penalty could have been imposed on the appellant B.K. Patel. In that view of the matter the imposition of personal penalty on the appellant B.K. Patel is liable to be set aside and accordingly the same is set aside.

11. The only other aspect that remains for consideration is the confiscation of the truck. The confiscation was ordered under Section 115(2) of the Customs Act. The said provision provides for confiscation of a conveyance used as a means of transport in the smuggling of any goods or in the carriage of any smuggled goods. It is, therefore, necessary for the Department to establish that the truck in question was used as a means of transport in the smuggling of any goods or in the carriage of any smuggled goods. The allegation was that 20 slabs of silver was transported to a wadi in violation of the provisions of Sections 11K of the Customs Act. The further allegation was that there was an attempt to export silver. The truck No. MHT 2304 was admittedly used for the transport of 20 silver slabs from Panchkuva to wadi. The truck was not used from wadi to any other place. The journey between Panchkuva to wadi cannot be considered as in the course of attempted export of silver. The silver at that stage also cannot be considered as smuggled goods because there was no attempt to export at that stage. In the said circumstances it cannot be said that the truck was used as a means of transport in the smuggling of goods or in the carriage of smuggled goods. In that view of the matter the truck also cannot be ordered to be confiscated under Section 115(2). The violation of the provisions of Section 11K would only render the goods Carried in the truck liable to confiscation and not the truck itself. In its order the Board had not disclosed or given finding as to the liability of the truck to confiscation. The finding of the Collector reads "I, therefore, hold that at least underneath the 62 bags of berries at Ahmedabad as deposed by Shri Benichand G. Thakor in his statement dated 31-1-69 and transported the said silver from Ahmedabad to the said wadi. I further, hold that the said wadi is situated in the specified area and no silver bullion can be transported without the cover of a voucher as required under Section 11K of the Customs Act, 1962 in that wadi. I hold further that no voucher or and transport voucher as required under Section 11K of the Customs . Act, 1962 was held by the driver or the cleaner or by any one in this case, and the recovery of the. large quantity of 101 slabs of silver from the earth near the well situated in open wadi which is very close to the sea shore of India is a clear decisive inferential evidence that the silver seized in this case was intended in all probability to be imported to a place outside India and in furtherance of that complete plan to export huge silver, 20 slabs of silver were carried in the truck No. MHT 2304. I, therefore, hold that the said transport of silver from Ahmedabad to wadi mentioned above was done in contravention of Section 11K of the Customs Act, 1962 so as to hold that silver to be exported goods and thereby the silver seized in this i.e. 101 slabs of silver were rendered liable to confiscation under Section 113(1) of the Customs Act, 1962. Therefore, it can be held that the truck No. MHT 2304 was used as a means of transport in the smuggling of said 20 slabs of silver as per Section 2(39) read with Section 2(22) of said Act. I, therefore, hold further that the said truck MHT 2304 is liable to confiscation under Section 115(2) of the Customs Act, 1962". From the finding of the Collector one cannot understand how he could order confiscation of the truck under Section 115(2). His finding was that there was contravention of Section 11K. For contravention of Section 11K the Customs Act did not authorise confiscation of the conveyance though it authorise confiscation of the specified goods conveyed in the conveyance. There is no clear finding by the Collector also that the truck was used as a means of transport in the smuggling or in the carriage of smuggled goods. In the circumstances and for the reasons already stated the confiscation of the truck and imposition of fine in lieu of confiscation are set aside.