A.P. Ravani, C.J.
1. This is an appeal filed by the Union of India against the judgment and order passed by the learned Single Judge in S. B. Civil Writ Petition No. 1863/1983 decided on July 29, 1993. By the said judgment and order the learned Single Judge allowed the writ petition and quashed and set aside the show cause notice dated June 18, 1983 (Annexure-4 to the petition) qua the petitioner Peerulal only. The show cause notice was issued under Section 124 of the Customs Act, 1962. The learned Single Judge also directed to restore the seized 479 bottles of Imperial Whisky seized vide seizure memo Annexure R-l/l and to refund the amount of Rs. 1,200/- realised through the sale of 120 bottles of Beer to the petitioners immediately.
2. The respondent No.1 herein (i.e. Peerulal son of Gordhanji Solanki) was served with a show cause notice dated June 18, 1983 issued by the Assistant Collector, Customs and Central Excise, Jodhpur. The show cause notice was served upon others also, namely, Adam Khan son of Jamal Khan, Mage Khan son of Jeete Khan, Lakhe Khan son of Sher Khan, all of Jaisalmer, Kanhaiya Lal Mehra of Jodhpur, Jethmal of Jodhpur and Jumma Khan of Jaisalmer. It was alleged in the show cause notice that acting on information that on March 2, 1983 Jonga Jeep No. RRN 8716 will carry liquor from Jodhpur to Jaisalmer for illicit export to Pakistan through unauthrosied route, Nakabandi was arranged. At about 21.15 Hrs. on Jodhpur to Jaisalmer road 20 Kms. beyond Jodhpur one Jeep was noticed. Signals were given to stop but the jeep did not stop and speeded away. However, it was intercepted by another party by road, blocking. On search of the Jeep three persons namely, Adam Khan s/o Jalal Khan, Kudha Bux Mage Khan son of Jeete Khan and Lakhe Khan son of Sher Khan were sitting in the Jeep. The Jeep was brought to Jodhpur Custom Office. When searched in presence of two independent persons, following articles were found:-
Description of goods Oty. Value
1. i) Indian made foreign liquor Imperial Whisky (IMFL) made 479 bottles 19160.00
in India (@40/-)
ii) Ruby XXX Rum (IMFL) made in India 24 bottles 840.00
2. Silver Tezabi-4 slabs 2.996 Kg. 9375.00
3. Speed King Tape recorder (used made in Japan One 400.00
4. CASIO LC 786 mini card electronic calculator old & used, One 100.00
Made in Japan
5. Cassettes old & used Five 50.00
6. Charlie spray -- Made in USA one bottle One bottle 40.00
Total 29965.50
3. The persons who were sitting in the Jeep admitted they were carrying Indian made Foreign Liquor from Jodhpur for smuggling to Pakistan'. They could not give any satisfactory reply nor produced any evidence documentary or otherwise to prove lawful acquisition/possession for carrying the said liquor. In presence of witnesses Adam Khan, Mage Khan and Lakhe Khan were asked to produce any documentary evidence regarding legal possession or transportation of the above goods recovered from their Jonga Jeep but they could not produce. They admitted that they had loaded the liquor from the Garrage of Shri Peeru Lal situated at 7th Road, Sardarpura, Jodhpur and owner of the liquor was Shri Peerulal. Under the reasonable belief that 479 bottles of Imperial Whisky, 24 bottles of Rum and four bars of silver weighing 2.996 kgs. were in the process of being smuggled to Pakistan through route not specified under Section 7(c) of the Customs Act, 1962 and the same was being smuggled out in violation of the provisions of Section 11K and 11I and Section 135A of the Customs Act, 1962 and the goods were liable to confiscation under Section 113 of the Customs Act, 1962 and the persons were liable to be punished under Sections 114 and 135 of the Customs Act, 1962. the goods were seized.
4. In the follow up action, the residence and garrage of Shri Peerulal were searched in presence of two independent witnesses and it resulted in the recovery of 120 bottles of Guru Beer worth Rs. 1200/- and certain other incriminating documents were found. Statements of Adam Khan and Mage Khan were recorded under Section 108 of the Customs Act, 1962. Therein they admitted that they were carrying 403 bottles of Whisky, 4 bars of silver and other goods recovered from the Jonga Jeep No, RRN 8716. They further stated that liquor was got loaded by Shri Peerulal at his garrage situated at 7th Road, Sardarpura, Jodhpur. Both Adam Khan and Mage Khan clearly admitted that liquor was loaded for Jaisalmer for onward transportation to Pakistan through an unauthorised route. They also admitted that they had no permits, vouchers and other legal documents for transportation of the goods in question to Pakistan. They also admitted about their similar activities in past. Lakhe Khan also admitted in his statement that the liquor was got loaded by Peerulal at Jodhpur.
5. It was also mentioned in the show cause notice that statements of Peerulal was recorded under Section 108 of the Customs Act, 1962 on March 3,1983 and March 4,1983. In the said statement Peerulal admitted the ownership of 503 bottles of whisky recovered and seized from Jonga Jeep No. RRN 8716. In this connection, it is alleged as follows:-
'And whereas that Shri Peerulal in his statement dated 3-3-83 and 4-3-83 recorded under Section 108 of the Customs Act, 1962 admitted the ownership of 503 bottles of whisky recovered and seized from Jonga Jeep No. RRN 8716 by the Customs Officers in the night of 2-3-83 at Jodhpur-Jaisalmer Road. He also admitted that 120 bottles of Guru Beer recovered and seized from his residence at Sardarpura also belonged to him and that he had no permit nor any other documents for possession and transportation of whisky, Rum and Beer. He stated that 503 bottles were got loaded in the Jonga Jeep No. RRN 8716 in his presence for illicit export to Pakistan and the 120 bottles of Beer were also to be sent in the same manner at appropriate time. He disclosed that earlier also i.e. in the month of June. 1982, he had sent two consignments of liquour to Pakistan illicitly via Jaisalmer through Shri Jume Khan of Jaisalmer. He admitted that he knew Shri Adam Khan for the last one year. Regarding documents recovered from his residence during the course of search he slated that these actually belong to Shri Idris and Abbas Ali who were his tenants in the past and they also indulgeed in smuggling activities. Shri Peerulal also disclosed that he had received Rs. 3000/- as part payment from. Shri Kanhaiya Lal Mehra in lieu of 503 bottles of the liquor supplied to Shri Adam Khan which was seized on 2-3-83 by the Customs Officers. Shri Peerulal admitted that he knew Shri Kanhaiya Lal and Jethmal very well because they had made payments to him earlier also against the consignments of liquour sent for smuggling purposes in the past.'
In the show cause notice the gist of the statement of other witnesses, namely, Kanhaiya Lal Mehra and Jethmal have also been referred to. On the basis of the allegations made in the show cause notice petitioner No. 1 Peerulal and others were called upon to show cause and explain to the Additional Collector, Customs and Central Excise, Jodhpur within 10 days of the receipt of the notice as to why seized goods should not be confiscated and penal action should not be taken against them under the provisions mentioned in the show cause notice.
6. Petitioner No. 1 Peerulal and two other petitioners, namely, Ramesh Chandra son of Peerulal and Vijai Shankar son of Peerulal filed the writ petition on July 18, 1983 and prayed that the show cause notice be quashed and the respondents be restrained from proceeding further against the petitioners for confiscation of the bottles and from prosecuting the petitioner No. 1 Peerulal. The petitioners also prayed that the respondents may be directed to restore the bottles or to refund the amount of Rs. 1200/- realised through sale of 120 bottles of Beer.
7. The petition was resisted by the appellants herein on facts as well as on law points. It was interalia submitted that the petition was pre-mature. The petitioners had alternate remedy for reply to the show cause notice and agitating the case before the authorities exercising powers under the appropriate provisions of the Customs Act, 1962. The disputed questions of fact were involved in the petition and the notice was issued within the powers of the customs officer.
8. The learned Single Judge heard the petition on merits and came to the conclusion that the theory of transporting the whisky and Rum through unspecified route was subsequently taken by the respondents in the show cause notice, inasmuch as, the same was not stated in the seizure memo. The learned Single Judge came to the conclusion that the petitioner No. 1 Peerulal had not admitted in his statement under Section 108 of the Customs Act that he had sent the consignment of goods for smuggling or transporting to Pakistan. On this basis, the learned
Single Judge held that the show cause notice issued against Peerulal was without jurisdiction and quashed and set aside the same and passed the judgment and order as stated hereinabove. It is against this judgment and order that the appeal is filed by the Union of India.
9. The legality and validity of the show cause notice is to be judged from the contents of the notice itself. It is clearly stated in the notice that the goods seized were being smuggled and exported to Pakistan through unspecified route. Whether this was an afterthought and was mentioned at belated stage is a matter of appreciation of evidence which could not be done in the petition under Article 226 of the Constitution of India. On the face of it, the notice states that the goods were being exported from India to Pakistan through unspecified route. This allegation is made in the show cause notice on the basis of the admission made by Peerulal petitioner No. 1 and other persons. What is stated by Peerulal in his statement is specifically stated in the show cause notice. This part of the show cause notice has been extracted above. In the statement, Peerulal has specifically stated that 503 bottles of whisky were got loaded in the Jonga Jeep No. RRN 8716 in his presence for illicit export to Pakistan and 120 bottles of Beer were also to be sent in the same manner at appropriate time. In the statement he has further disclosed that earlier also in the month of June, 1982 he had sent two consignments of liquor to Pakistan illicitly via Jaisalmer through Jume Khan of Jaisalmer. In the show cause notice the admission of Adam Khan, Mage Khan and Lakhe Khan has also been recorded. In view of these allegations in the show cause notice which is based on the statements of Peerulal and other persons recorded under Section 108 of the Customs Act, it cannot be said that there was no material before the Customs Officers to form reasonable belief that the goods were being smuggled out of India to Pakistan. With utmost respect, the statement of Peerulal which has been reproduced in the show cause notice itself has not been correctly read over before the learned Single Judge.
10. Learned counsel for the respondents relied upon a decision of the Supreme Court in the case of Malkiat Singh v. State of Punjab, : 1970CriLJ750 . On the basis of this decision, it is submitted that the acts alleged against the petitioners could at the most be said to be a preparation for Committing an offence and not that of an attempt to commit offence. It was a case in which a truck loaded with 75 bags of paddy weighing about 140 maunds was intercepted as export of paddy was contrary to law. The truck was stopped at Samolkha Barrier which was 32 Miles from Delhi. Thus there was no export of paddy outside the State of Punjab boundary. In this fact situation, the Supreme Court held that it was a case of preparation for committing an offence. It was quite possible that the accused might have been warned that they had no licence to carry the paddy and they might have changed their mind at any place between Samalkha Barrier and the Delhi-Punjab boundary and not have proceeded further in their journey.
In view of this decision, it is submitted that at the most, it can be said to be preparation for committing an offence and not an attempt to commit offence.
The aforesaid submission cannot be accepted. In para 4 of the decision, the Supreme Court has interalia observed that the preparation consists in devising or arranging the means or measures necessary for the commission of the -offence. On the other hand, an attempt to commit the offence is a direct movement towards the commission after preparations are made. Supreme Court has further observed that in order that a person may be convicted of an attempt to commit a crime, he must be shown first to have had an intention to commit the offence and secondly, to have done an act which constitutes the actus reus of a criminal attempt. Supreme Court has extracted Article 50 from Digest of Criminal Law by Sir James Stephen, which reads as follows :-
' an act done with intent to commit that crime, and forming part of a series of acts which would constitute its actual commission if it were not interrupted. The point at which such a series of acts begins cannot be defined, but depends upon the circumstances of each particular case.
If the aforesaid principles are applied, it would be difficult to say that in the instant case, there was no attempt to commit an offence. Again, it may be noted that in this case all that is to be seen by the Court is as to whether there was material before the Customs Officer to form reasonable belief before effecting the seizure of the goods. The reported decision of the Supreme Court (Malkiat Singh's case, : 1970CriLJ750 , (supra), on which reliance is placed, was a case under the Essential Commodities Act, 1955 and the allegation was that certain provisions of Punjab Paddy (Export Control) Order, 1959 were contravened. In this case, the approach of the Court has to be as to whether there was material before the Customs Officer to form reasonable belief that the goods were liable to confiscation Under Section. 113, Customs Act, 1962 or not. Therefore, on this basis only, it can be said that the reliance placed on the aforesaid decision of the Supreme Court is of no help to the petitioners.
11. In the instant case, it may be noted that the term 'smuggling' has been defined Under Section. 2(39) of the Customs Act, 1962, as under:-
''smuggling', in relation to any goods, means any act or omission which will render such goods liable to confiscation under Section 111 or Section 113;'
Section 113. Customs Act, 1962, inter-alia provides for confiscation of goods attempted to be improperly exported. In the instant case, the overt acts already done are such that one can reasonably form belief that this is a case of direct movement towards the commission after preparations were made. The following are circumstances which appear from the contents of the show cause notice, and which provide sufficient material to form reasonable belief as stated above :
(1) That the goods seized were not stored at the authorised place but they were stored at Jodhpur
(2) That these goods particularly Whisky was got loaded in Jonga Jeep by Peerulal;
(3) That Jonga Jeep was being driven not through authorised route and the goods were being carried through unauthorised route;
(4) Jonga Jeep was given signal to stop but instead it speeded away and tried to escape;
(5) All the three inmates of Jonga Jeep, namely, Adam Khan, Mage Khan and Lakhe Khan admitted that they were carrying liquor and other contraband goods like silver etc. from Jodhpur for being: smuggled to Pakistan.
(6) These persons also admitted that they were engaged in such activities in past.
(7) Petitioner No. 1 Peerulal clearly stated in his statement Under Section. 108, Customs Act that he was the owner of Whisky bottles recovered and seized from Jonga Jeep No. RRN 8716 by the Customs Officers in the night of March 2, 1983 at Jodhpur-Jaisalmer route. He also admitted that he was the owner of 120 bottles of Guru Beer recovered and seized from his residence at Sardarpura, Jodhpur. He further admitted that he had no permit or any other document for possession and transportation of Whisky, Rum and Beer. He clearly stated that 503 bottles of Whisky were got loaded for illicit export to Pakistan by him.
In view of the aforesaid circumstances, one can reasonably form belief that the goods were being exported to Pakistan for the purpose of smuggling. It may be noted that as per notification No. 12-CUS dated 23-1-65 issued Under Section. 7-A and B of the Customs Act, 1962, Jodhpur-Jaisalmeris not the route through which the goods can be exported to Pakistan. The goods can be exported to Pakistan only after the goods are cleared at the specified check post in Jodhpur division on the Barrner-Gadra route and not on Jodhpur-Jaisalmer route.
In view of the aforesaid circumstances and the provisions of the notification it pales into insignificance that the Jonga Jeep was intercepted 20 Kms. away from the specified area.
On the basis of aforesaid material on record, by no stretch of reason, it can be said that the Customs Officer could not have formed a reasonable belief to the effect that the goods were liable to be confiscated Under Section. 113, Customs Act, 1962. There was sufficient material to form this reasonable belief. Therefore, reliance placed on the decision of the Supreme Court in the case of Malkiat Singh, : 1970CriLJ750 (supra), is of no help to the petitioners.
12. Learned counsel for the petitioners also relied upon the decision of the Supreme Court in the case of Nasu Sheikh v. The State of Bihar, reported in : 1972CriLJ1039 . It was a case under the Essential Commodities Act. In that case, cultivators of a village in Bihar had lands also in West Bengal. They were intercepted by police in Bihar at a place 75 yards from the border of West Bengal. They were found carrying paddy without permit. In this fact situation the Supreme Court held that the question of distance assumes importance as there is possibility of accused persons changing their minds at any time between the place of seizure and the State boundary. Therefore, in absence of correct information about the geographical situation, it was not safe to convict the accused for breach of Clause 3 of the Bihar Foodgrains (Control Movement) Order, 1957.
In the instant case the fact situation is altogether different. The mateiral disclosed in the show cause notice prima facie disclose that the goods were liable to be confiscated and the Customs Officers had sufficient material to form a reasonable belief to the effect that the goods were being attempted to be exported in improper manner.
13. For the reasons indicated hereinabove while discussing the case of Malkiat Singh, : 1970CriLJ750 (supra), this decision is also of no help to the petitioners. The material disclosed in the show cause notice prima facie disclose that the goods were liable to be confiscated and the Customs Officers had sufficient material to form a reasonable belief to the effect that the goods were being attempted to be exported in an improper manner. Therefore, this decision of the Supreme Court is also of no help to the petitioners.
14. On the aforesaid reasons, the judgment and order passed by the learned Single Judge, is liable to be reversed and set aside.
15. In the result, the appeal is allowed. The judgment and order dated July 29, 1993, in S. B. Civil Writ Petition No. 1863/1983 is reversed and set aside. The appellants will proceed further with adjudication of the show cause notice in accordance with law. However, the petitioners will be at liberty to file reply to show cause notice within a period of one month from the date of pronouncement of this judgment. If the reply is filed within stipulated time, the same shall be treated as having been filed within time.