D.N. Panda
1. Noticing role of this appellant in the attempt to export of foreign currencies of various denominations, Travellers cheques and Indian currency of aggregate value of Rs.3,53,79,061/- to Singapore by one Sri Nallaian Pargunam @ Joseph and his wife, the appellant was penalised as an abettor under Customs Act, 1962 (hereinafter referred to as the Act) in terms of adjudication order dated 02.05.2003. The Appellant came before Tribunal being aggrieved by that order imposing penalty of Rs.5 lakhs on him under Section 114 of the Act. While imposing penalty, learned Adjudicating authority found involvement of this appellant in the above attempt from statement recorded from one Sri J. Sickander on 11.3.1996 as extracted in para-7 of the impugned order and in so far as that is relevant is extracted below :
“Shri J.Sickander, in his statement dated 11.03.96 stated inter alia that he was the owner of Samrat Rest house at Triplicane, that in January, 1996, he met Shri Jafarullah of Singapore, who belonged to Amma Pettai, Tanjore and who was known to him for the past ten years, that the said Jafarullah putforth a plan for doing hundi business in large scale, that Shri Jafarullah would arrange huge amounts in Indian rupees to be delivered to him (Shri Sickander) through persons known to Shri Jafarullah at his (Shri Sickander’s) residence, which he (Sickander) had to convert into foreign currencies and smuggle out to Singapore to Jafarullah through air passengers from Madras for which Shri Jafarullah would pay him (Sickander) substantial commission, that around 18.01.96, Shri Jafaruhlah informed him over phone that certain persons would hand over him (Sickander) money to the tune of Rs.5 lakhs to 50 lakhs from that day onwards, that. accordingly, the said persons handed over him various amounts in packets bearing markings as ‘A’,N’, ‘W’, that he changed them into foreign currencies and made them into bundles and marked them with the same markings, that he had informed the said details by a FAX message to Shri Jafarullah and confirmed the same by a telephone call, that Shri Jafarullah rang up and told him that a husband and wife (wife’s name being Kokilavani), Singapore citizens had come to Madras, whom he had asked to contact him (Sickander) and through whom he (Sickander) could send the foreign currencies, that accordingly, he had sent through them the box containing foreign currencies (worth about Rs.2.5 Crores) accompanied by Shri Abdul Shukoor to the airport, that Shri Jafarullah had confirmed on phone about the receipt of the said foreign currencies, that again Shri Jafarullah rang him up and informed him (Sickander) that he (Jafarullah) had made arrangements for handing over large hundi amounts and asked him (Sickander) to convert them into foreign currencies as done earlier and send them through air passengers in about a month’s time, that accordingly, he obtained from various brokers and operators and kept the foreign currencies ready in bundles as done in the last occasion, that as Shri Jafaruhllah had not made arrangements for air passengers, he (Sickander) approached Shri Sheik Abdullah and Shri Shaikh Abdullah informed him (Sickander) that his (Abdullah’s) friend Shri Nallian Pargunam and his wife were to leave for Singapore on 08.03,96, that since the said passengers were to travel by MAS flight and as the same was not convenient for sending the money, he (Sickander) asked Shri Sheik Abdullah to request the said passengers to go IC Flight on 10.03.96 and also told him (Abdullah) that he would bear the cost of the air tickets, that on 08.03 .96, he (Sickander) arranged for car TMI-504 from Om Sakthi Travels and kept the box containing foreign currencies and Indian currency in the dickey of the said car, which was not known either to the driver of the car or anyone in the travel agency and left the car in office of the travel agency as no one else would use the car since the same has been booked in his name, that on 09.03.96 he met Shri B.Santhanavannan, Customs Officer, at the airport and sought his help in the clearance of the aforesaid passengers whom, he told, were carrying costly silk sarees, churidars, silver jewelleries and some foreign currencies, for which he (Santhanavannan) agreed, that he had not talked about the money to be given to Shri B.Santhanavannan for this, that Shri B. Santhanavarman asked him to give the car number and not to send the passengers directly inside and he gave the car No. TMI-504, a white Ambassador Car, that according to the above arrangements, on 10.03.96, he (Sickander) had asked Sun Abdul Shukoor to take the car from the travel agency, pick up the passengers and see them off at the airport, that Shri Sheik Abdullah had also gone to the airport in an auto, taking Shri Jabarullah along with him.”
2. Statement was also recorded on 10.3.96 from the Appellant wherein he has admitted his role as recorded in para-10 of impugned order which reads as under: -
“Shri A. Jabarullah in his statement dated 11.03.96 stated inter alia that on 10.03.96 he went to the residence of Shri Sickander, his relative when Shri Sheik Abdullah, already known to him, was there, that at that time Shri Sickander informed him that he was sending foreign currencies through Shri Nallaian Pargunam and his wife whose ticket cost was borne by him and that he had arranged for an auto in which he (Jabarullah) and Shri Sheik Abdullah reached the airport to see off the passengers. In the said statement he had confirmed the recovery of passports and Customs duty paid receipts for gold import from his residence under a Mahazar.”
3. When involvement of the appellant came up, that showed his conscious knowledge in abetting attempt to export of the impugned goods i.e. foreign currency of various denominations, travelers cheque and Indian currency totally equivalent to Rs.3,53,79,061/-. Export of such goods were attempted without any legitimate evidence (para-2a of the adjudication order). Adjudication was accordingly made holding the Appellant guilt for levy of penalty under Section 114 of Customs Act, 1962. To reach to such conclusion, the authority in para-48 of the order recorded as under:-
“As far as Shri A. Jabarullah is concerned, in his statement dated 11.03.96 he has admitted that he was aware of the fact that the currency was being sought to be exported through the passengers; that Shri Sickander had arranged for the tickets for the passengers; that he had met Shri Sheik Abdullah in Shri Sickander’s house on 10.03.96 when the arrangements were being made. Further, Shri Sickander has also in his statement implicated Shri A. Jabarullah as a person who had arranged passengers earlier and in the instant case he had met Sheik Abdullah in Shri Sickander’s house and accompanied them to the Airport. From this it is amply clear that Shri A. Jabarullah has abetted the illegal export of foreign currencies/travellers cheques by Shri Nallaian Pargunam and is, therefore, liable for penalty under Sec. 114 of the Customs Act, 1962.”
4. Learned counsel appearing on behalf of the appellant submitted that the facts stated to have been admitted by the appellant were retracted as is stated in ground No.3 of the appeal memorandum. Therefore, there was no evidence against the appellant for levy of penalty of Rs.5 lakhs. It was also argued that the appellant did not travel in the car in which the persons from whose custody impugned goods were found for which there was no admission of offence committed and when the appellant went in an auto along with another to see off the said passenger, that shall not bring him to the penal consequence of law. When the appellant was arrested and sent to judicial custody for 60 days, he deserves lenient consideration and penalty levied may be set aside.
5. On the other hand, revenue supports the adjudication order.
6. Heard both sides and perused the record.
7. Appellant’s contribution to attempted export of the impugned goods could not be ruled out without he kept himself aloof from the attempt. When he admitted to had intimacy with Sri J. Sickandar and had conscious knowledge of the deal resulting in attempt to export of the impugned goods, he cannot be said to be a stranger to the deal. Also when he admittedly travelled by an auto to airport along with one Sri Sheikh Abdullah following the car transporting the impugned goods, he proved his conscious knowledge of attempting export. Accordingly, the plea of seeing the passengers off is enough to establish act of commission in the entire effort of attempt to export the impugned goods. Involvement of the appellant is thereby not ruled out. The facts recorded in para-7 of the impugned order remained unrebutted in the course of hearing. So also the finding in para-48 of the impugned order by no means was challenged. Retraction was a mere plea to get immunity under law. Judicial custody of the appellant due to arrest made also corroborated his association in commitment of the attempt to export. Retraction no way could discredit the evidence recorded under Section 108 of the Customs Act, 1962 initially on 11.3.1996.
7. Broadly speaking, 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. The first stage exists when the culprit first entertains the ides or intention to commit an offence. In the second stage, he makes preparations to commit it. The third stage is reached when the culprit takes deliberate overt steps to commit the offence. Such overt act or step in order to be `criminal’ need not be the penultimate act towards the commission of the offence. It is sufficient if such an 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. As pointed out in Abhayanand Mishra v. State of Bihar, (1962) 2 SCR 241, there is a distinction between `preparation’ and `attempt’. Attempt begins where preparation ends. In sum, a person commits the offence of ‘attempt to commit a particular offence’ when (i) he intends to commit that particular offence; and (ii) he, having made preparations and with the intention to commit the offence, does an act towards its commission; such an act need not be the penultimate act towards the commission of that offence but must be an act during the course of committing that offence.
8. Penal provisions are enacted to suppress the evil of smuggling which is an anti-social activity adversely affecting the public revenues, the earning of foreign exchange, the financial stability and the economy of the country. Such provisions should be construed in manner which would suppress the mischief, promote their object, prevent their subtle evasion and foil their artful circumvention. Thus construed, the expression ‘attempt’ within the meaning of these penal provisions is wide enough to take in its fold any one or series of acts committed, beyond the stage of preparation in moving the contraband goods deliberately to the place of embarkation, such act or acts being reasonably proximate to the completion of the unlawful export. The inference arising out of the facts and circumstances established by Customs Authority, unerringly pointed to the conclusion, that the appellant had committed abetment of the offence of attempting to export the impugned goods, in contravention of law.
9. Evidence Act does not insist on absolute proof for the simple reason that perfect proof in this imperfect world is seldom to be found. That is why under Section 3 of the Evidence Act, a fact is said to be `proved’ when, after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. This definition of `proof’ does not draw any distinction between circumstantial and other evidence. Thus, if the circumstances listed above establish such a high degree of probability that a prudent man ought to act on the supposition that the appellant was abettor to the offence attempting to export the impugned goods in contravention of the law, that will be sufficient proof of that fact in issue.
10. When we found that the case in hand could not make the appellant a stranger to the offence committed and the appellant proved himself to be familiar to facts and circumstances of the case, he subjected himself to penal proceedings of the law. His involvement in the offence committed being so glaring and not contradicted leading cogent evidence, he was not innocent to claim leniency. Making an overall assessment of facts and circumstances and taking into consideration of the magnitude of his involvement and evidence as well as the role played, it is considered proper to reduce the penalty to Rs.1,00,000/- (Rupees one lakh only). We order accordingly. Appeal is partly allowed to the such extent.