JUDGMENT
Sidheshewar Narayan, J.
1. This appeal is directed against the judgment and order dated April 25, 1997 passed by a Single Bench of this Court in a Writ Petition being CO. No. 19940(W) of 1996. The writ in the nature of certiorari was directed to be issued to quash the impugned order of seizure made by the Customs authorities. The Customs authorities have, therefore, come up with the present appeal.
2. As per a seizure list bearing number S/C. No. EXP/CA/DHN/ BSF/96 dated 8.12.1996, 64 quintals of Black Peppers contained in 127 bags valued at Rs. 5,12,000/- were seized by the Customs authorities under Section 110 of the Customs Act, 1962 on the assertion that those were liable for confiscation under Section 113 of the said Act. The seizure was made from the godown of M/s. Bengal Trading, Anup Nagar, Dhuliyan within District Murshidabad (W.B.), which was a partnership Firm. The partners of the said Firm challenged the seizure under Article 226 of the Constitution of India through a writ petition wherein the Customs authorities as well as the personnel of the Border Security Force filed their respective affidavit-in-opposition. Upon the writ having succeeded, the Customs authorities have filed the instant appeal.
3. Obviously, the matter centres around the exercise of authority by the Customs officials under Section 110(1) of the Customs Act, 1962 which needs to be placed as hereunder:
Section 110(1). Seizure of goods, documents & things.–(1) If the proper officer has reason to believe that any goods are liable to confiscation under this Act, he may seize such goods.
* * * * * 4. So far as any goods being liable to confiscation under the Act was concerned Section 113 of the said Act has codified the grounds from serial No. (a) to (I) for the reasons of which certain goods attempted to be improperly exported were liable to confiscation. 5. It may be added here that with regards to the powers of the Customs authorities to prohibit or restrict importation or exportation of goods as noticed above, there were provisions made under Section 3(1) of Imports and Exports (Control) Act, 1947 as also under Section 113 of the Customs Act, 1962.
6. For the purpose of the instant writ petition, while only the aforesaid provisions of law were relevant to appreciate the contentions of the parties, it may be mentioned that the main thrust was on the point whether in the given facts and circumstances of the instant case the Customs authorities had reason to believe that the seized goods were liable to confiscation under Section 113 of the Customs Act, 1962. There was no controversy raised nor could it be done as such that in exercise of the powers conferred under Section 110 of the Customs Act, 1962, any such seizure could be done only in the event the Customs authorities had reason to believe that the goods were liable to confiscation and not otherwise.
7. The word “reason to belief in its plain meaning speaks of the state of mind of a particular authority which, more or less, was subjective than being objective. Even though a Court of law has to read the mind of an authorised person so as to determine whether or not he was supposed to have reason to believe any goods being liable to confiscation, the task becomes somewhat easier because the provision under Section 113 of the Act has already restricted the ambit of such acts and the attempt of only those acts towards improper exporting make the goods liable for confiscation. However, the intricacy of the point was at what stage of a particular course of action it could be interpreted as an attempt of improper exporting. It goes without saying that some acts are done just to make preparation to achieve a goal but if those are abandoned before making an attempt to fulfil the goal, the law probably may not take it as an actionable wrong. A distinction has thus to be made between preparation and actual attempt.
8. A situation has thus arisen to interpret in this case as to what act could be taken as an attempt of improper export of any particular goods and further what should be the legal standard of reasonable belief of a competent Custom authority. Some authoritative decisions on the judicial side already available would help a lot to take a decision in a particular set of facts. Some of those decisions on the point which could be relevant for the instant case and which could be taken resort of for forming an opinion in the matter may be set out at the very outset.
9. The Supreme Court has elaborately considered the nature of an attempt and has opined with regard to the distinction between preparation and attempt. In its decision in the case of State of Maharashtra v. Md. Iqbal, , it was held as hereunder:
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 idea 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 act or acts were deliberately done, and manifest a clear intention to commit the offence aimed, being reasonably proximate to the consumation of the offence. As pointed out in Abhayanand Mishra v. State of Bihar, 1962 SCR 242 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.
10. The above threadbare distinction between an attempt and a preparation needs to be taken into account in the instant case with reference to the state of facts which would be dealt with shortly hereinafter. Further, as to the reasonable belief also the Supreme Court has already set out certain preposition of law. One of such decisions which needs be referred to here is the case of State of Gujarat v. Mohanlal Jitamalji Porwal and Anr. , wherein it was held as follows:–
Whether or not the official concerned had seized the article in the ‘reasonable belief that the goods were smuggled goods is not a question on which the Court can sit in appeal. If prima facie there are grounds to justify the belief the courts have to accept the officer’s belief regardless of the fact whether the Court of its own might or might not have entertained the same belief. Whether or not the officer concerned had entertained reasonable belief under the circumstances is not a matter which can be placed under legal microscope, with an over-indulgent eye which sees no evil anywhere within the range of its eye sight. The circumstances have to be viewed from the experienced eye of the officer who is well equipped to interpret the suspicious circumstances and to form a reasonable belief in the light of the said circumstances. and relied on.
11. The Supreme Court, again, in the case of Union of India v. Shyams under, held that for the purpose of determining the existence of reasonable belief, the circumstances have to be viewed from experienced eye of seizing Customs officer and that a Court of law ought not to sit in appeal over this belief so long as prima facie there were grounds to justify the belief.
12. Therefore, in our considered opinion, while appreciating the facts and circumstances of a particular case, a Court of law need not substitute its own impression of mind or way appreciation rather it should view the things on the prima facie materials available before the Customs authorities in view of which it was or not possible for him to form a reasonable belief exercising ordinary prudence over a given set of facts. The authorised officer has to go beyond the limit of the state of suspicion in his mind and to search for certain facts and to locate some such facts, which were required, further, over and above the facts justifying a suspicion in his mind. There must be something more beyond the facts, “which were sufficient to raise a suspicion in mind so as to travel ahead to form a reasonable belief that there was an attempt of illegal exportation making certain goods liable for confiscation.
13. At this juncture, it would be required to, set out the factual score of the instant case in some more details.
14. On 6th December, 1996, the Border Security Force Personnel with the help of certain Customs authorities of Dhuliyan Customs Station as also the Sub-Inspector of Local Police Station raided the godown of the Writ Petitioner’s partnership Firm, M/s. Bengal Traders at Dhuliyan. The Chairman of the local municipality, Shri Shafar Ali also arrived there. The writ petitioner Asif Hossain being one of the partners of the Firm was asked to produce some papers and, thereupon, he produced cash memos/bills in support of the purchase of the black peppers stored therein but some other papers could not be produced. The BSF Personnel seized 60 quintals of black peppers contained in 127 bags and seized those from the godown. The stock was removed from there, of course, without preparing any inventory or other document whatsoever. The above named writ petitioner also was made to go with them. On the next following day i.e. on 8.12.1996, the BSF authorities handed over the goods to the Customs authorities who, thereupon, prepared an inventory of goods, also called as seizure list, under Section 110 of the Customs Act, 1962. That very seizure list is under challenge in the writ.
15. On the above bare facts as also going through the relevant seizure list, what significant points are sought to be made out by and on behalf of the appellant-customs authorities are that;–
(i) Whereas the Firm was just an authorised retail dealing unit in a Municipal town, the stock of black peppers was considerably huge or, at least, not proportionate to the demand in the small market existing there;
(ii) Even though one of the writ petitioners produced bills/cash memos towards acquisition/purchase of the stock, he did not produce the stock register or the Government’s permission to hold that much of stock;
(iii) The Firm and its godown (where the seizure was made) was located near the land frontier with or close to the border area of Bangladesh (Foreign Territory).
16. In view of the above three aspects of the matter, the Customs authorities asserted that all those constituted a reasonable belief that the goods would be smuggled out to the neighbouring country, namely, Bangladesh. The point thus arises whether, on the aforesaid aspects of the matter and nothing beyond that, there could be a reasonable belief in the mind of a Customs authority that the goods-in-question were liable to confiscation. In this context, the Customs authorities asserted in the relevant seizure list itself that the seizure was made on the reasonable belief that the goods were liable to be exported.
17. First, in this regard we find ourselves in agreement with the observation of the learned Single Judge that the solitary ground for seizure as mentioned in the seizure list, that is, goods being liable to be exported outside India was actually not to be found in any of the grounds from serial No. 8 to 11 (a) to (I) enumerated in Section 113 of the Customs Act, 1962, which deals with the act constituting an attempt of improper exportation. In fact, any goods liable to be exported does not in itself make out any act or omission on the part or a person, who holds stock of such goods. Any article or quantity of goods could be determined as liable to be exported only when it is associated with certain noticeable conduct of the party/person dealing with those goods. In the instant case, it is to be noticed that till such time when the seizure was actually made, there was no such act or omission on the part of the writ petitioners which would indicate that the stock held by them was meant for exportation.
18. Secondly, even assuming that the writ petitioners had stocked a huge quantity of black peppers in their godown against the probability of its dealing in the local market, it would, at the best, indicate merely some sort of preparations and, most certainly, not an actual attempt of exportation. It was very convincingly argued on behalf of the petitioners that till such stage when there was only an act of storing certain goods beyond normal expectation of local consumption, it was just a preparation; and there should be something more than that on the part of the wrong doer so as to attract the concept of attempt and thereupon to entertain a reasonable belief in one’s mind. It has been noticed above while making reference to the decision of the Supreme Court (supra) that there is necessarily a distinction to be made between an act of preparation and that of an attempt and unless there was some act of attempt to do some wrong towards improper exportation, the provision of Section 113 of the Customs Act, 1962 would not be attracted.
19. Thirdly, the Customs authorities were not required to deal with the limit of stock of the black peppers held by the writ petitioner. Nowhere, it was asserted by the Customs authorities before this Court, either before the Single Bench or the present one, that there was violation of any stock limit with regard to the stock of black peppers-in-question. It is quite a subjective factor varying from mind to mind what stock of any such goods could be deemed to be proper at a particular point of time or at a particular place. There being no legal limit imposed with regard to the stock, it would be quite stray thinking that a stock of certain limit would be deemed to be liable to improper exportation.
20. By the reasons, aforesaid, we do concur with the view as expressed by the learned Single Judge that there could be, in fact, no reasonable belief in one’s mind with regard to improper exportation at the point of time when the seizure was made. It may also be made clear that whether such reasonable belief could be entertained in the mind of Customs authorities was to be considered with reference to the point of time when the seizure was actually made and not on the basis of what could be probably gathered or what actually transpired subsequent to the actual seizure made. In this context, it would not be out of place to mention that the stock-in-question was actually seized by the BSF authorities on 7.12.1996 when they took hold charge of the stock in the godown of the Writ Petitioners and also removed those from that godown to some other place. The Customs authorities though, however, present at the time of such seizure or detention of the stock on 7.12.1996, did not choose to prepare the inventory of those articles, that is to say, the seizure list as contemplated under Section 110 of the Customs Act, 1962. Rather it was on the subsequent day i.e. on 8.12.1996 when the BSF authorities made over the stock to the Customs authorities, who, on its turn, prepared the seizure list under challenge.
21. We need not, however, go into the intricacies as to the time factor or the delay in preparation of such seizure list or even further with regard to the time limit of the notice under Section 124 of the Customs Act, 1962 but the fact remains that the seizure-in-question was actually held and conducted on 7.12.1996 i.e. a day earlier than the day of preparing the seizure list and there was no notice served under Section 124 of the Act as yet. What is relevant for the present was only whether at the point of time when the seizure was actually made on 7.12.1996 the Customs authority could have entertained in its mind a reasonable belief that the stock-in-question was liable to confiscation under Section 113 of the Customs Act, 1962. In our considered opinion, there was want of legal requirement of such reasonable belief by the reason of the facts as noticed above.
22. This appeal has, therefore, no merit and accordingly, it is dismissed. It may be mentioned that the goods-in-question have already been released in favour of the writ petitioners. There shall be no order as to costs.