JUDGMENT
Samaresh Banerjea, J.
1. The petitioners who are carrying on business in partnership under the name and style of “Bengal Traders” in Chillies, Jeera, Black Peppers, Betel Nuts etc. at Dhuliyan, have challenged an order of detention and seizure of 64 quintals of Black Peppers from the godown of the petitioners situated at Anupnagar, Kanchantala, Kamat of Dhuliyan, by the respondents.
2. It is the case of the petitioners that purchasing the goods from various places like Calcutta, Kerala ect. they store the same in their aforesaid godown and sell such articles in small lots from their retail shops situated at Dhuliyan Cinema Road, Dhuliyan in the district of Murshidabad. For the aforesaid business they possesses the requisite certificate from the concerned department of the Government of West Bengal and they also maintain their accounts and pay all taxes including income tax, sales tax etc. On 7th December, 1996 at about 6 P. M. some Border Security Force Personnel (hereinafter referred to as the B.S.F.) being the respondent No. 2 and 3 along with some customs officials, police personnel and responsible persons of the locality came to the aforesaid godown of the petitioners and although the petitioner No. 1 showed the said respondents the sale tax registration certificate, vouchers cash memo, the transport challan, stocks register and sale register, the BSF personnel arbitrarily and illegally lifted the said 64 quintals of black peppers on a matadore van which they brought along with them and took away the said goods and detained the same without further making any inventory or making any seizure list in respect thereof. Having failed to obtain any inventory from the respondent No. 2 and 3 the petitioner lodged a general diary on 7th December, 1996 with the officer-in-charge Samser ganj Police Station, at Dhuliyan. On 8th December, 1996 the petitioner No. 1 visited the office of the respondent No. 7 for demanding return of his said detained goods when the said goods were seized again by the customs authority and after preparation of a seizure list the same were handed over to the petitioner.
3. The aforesaid seizure list was issued under Section 110 of the Customs Act 1962 and it was alleged there, inter alia, that the owner of the goods so seized failed to produce any documents, papers in support of his legal acquirement/possession of the goods and hence the goods were seized under Section 110 of the Customs Act on the reasonable belief that the same are liable to be exported outside India and are liable to be confiscated under Section 100 and Section 113 of the Customs Act 1962.
4. It is the specific case of the petitioner that the allegation in the said seizure list that the petitioners failed to produce any documents in support of ownership and possession of the materials are absolutely baseless and mala fide. Admittedly the Chairman of the Dhuliyan Municipality Mr. Safar Ali was present in the godown of the petitioner which was raided by the respondent on 7th December 1996 and it will appear from a certificate issued by him that the petitioner No. 1 although showed all the documents which were asked for by the BSF personnel at the time of search of the godown the BSF personnel removed the goods without preparing any seizure list or inventory.
5. The aforesaid seizure by the respondents is the subject matter of challenge in the present writ petition.
6. The aforesaid seizure has been challenged by the petitioners mainly on the ground that such seizure ex facie cannot be sustained being contrary to Section 110 and 113 of the Customs Act in as much as although goods are liable to be confiscated under Section 113 of the Customs Act if an attempt to export the same is made illegally and on reasonable belief in respect thereof seizure can be made under Section 110 of the Customs Act, admittedly there has been no attempt whatsoever to export the goods and in the said order of seizure itself it is indicated that the said goods are seized “being liable to be exported” which is not a ground on which a seizure can be made under the Customs Act.
7. Mr. Saktinath Mukherjee the Ld. Senior Counsel appearing for the petitioner has submitted, inter alia, that apart from the fact that it will appear from the order of seizure itself it will appear that the seizure was not made on the reasonable belief that the goods are liable to confiscation under the Customs Act as there was an attempt to export the goods illegally, there was no material whatsoever before the repondents justifying the formation even prima facie of a reasonable belief under Section 110 of the Customs Act that the goods are liable to confiscation. It has been submitted that the reason for seizure as indicated in the said order itself that the goods are “liable to be exported outside India” cannot be reason at all under Section 110 read with Section 113 of the Customs Act for seizure in as much as goods are liable to be confiscated under Section 113 of the Customs Act, if, the same are attempted to be exported outside India illegally and as there was no attempt to export the goods or there was any overt act from which it can be said that there was an attempt to export the goods but the goods in fact having been seized from the godown of the petitioners there could not have been any seizure of the goods legally. It has further been submitted, infer alia, that in the order of seizure itself where the reason for the seizure has been disclosed. It has not been stated that there has been any attempt to export but it has been merely stated the goods are “liable to be exported” but “liability of export” does not make it liable for confiscation under Section 113 of the Act and therefore liable for seizure under Section 110 of the Act. Mr. Mukherjee has also relied upon different High Courts decisions in support of his contention that to constitute an attempt to export goods outside India within the meaning of aforesaid Section 113 there must be some overt act constituting such attempt and has submitted that in absence of such overt act in the present case it cannot be said that there was an attempt to export when the goods were lying in a godown which is not impermissible and admittedly the seizure has been made from the godown of the petitioner which is therefore wholly illegal, arbitrary and without jurisdiction. It has further been submitted that the grounds which are now sought to be taken in their affidavits by the respondents for justifying the seizure also do not indicate that there was any attempt to export or there was any such overt act constituting an attempt of export and the contradiction in the affidavit filed by the Customs Authorities and the Border Security Force Authorities when read with aforesaid certificate of the Chairman of the Dhuliyan Municipality will clearly indicate that the aforesaid allegation in the order of the seizure that documents could not be produced are wholly malafide and untrue. It has also been submitted that BSF personnel also could not have removed the goods from the godown without an inventory and without issuing an order of seizure.
8. The Customs Authorities being the respondent No. 4 to 8 in their affidavit-in-opposition has stated, inter allia, that on 7th December, 1996 while the Customs officer along with the BSF personnel were on preventive duty at Dhuliyan, JAD (G) Border Security Force, Krishnanagar came to their office and sought help for conducting raid at a godown in the Anupnagar area and at about 13.45 hrs. the officers of the customs, Dhuliyan Customs station went to the site of the said godown with the sub-inspector of the local police station as also the Chairman of the municipality Sri Safar Ali and on enquiry it came to be known the godown belonged to M/s. Bengal Traders having retail shop at Dhuliyan Cinema Road; thereafter on repeated requests one of the partners of the firm Sri Asif Hussian produced one certificate of registration for dealer issued under West Bengal Sales Tax Rules for storing of spices but no mention of the godown premises could be found in the registration certificate and no other licence of any kind issued for storing of spices could be produced; thereafter on opening the godown 128 bags of black pepper weighing about 64 quintals were found in stock and the said partner could show only cash memo/bills in support of his purchase of black peppers, no register for stock and/ or sale and duplicate copies of cash memos against sale could be found in the godown.
9. It has been further stated in the said affidavit that “as it was found that the godown is not approved by any State/or Central Government department for the purpose of storing of black peppers”, the goods were lifted by BSF Officers along with Sri Asif Hussain for further examination. Thereafter on 8th December, 1996, Company Commandant, BSF, handed over 128 bags of black pepper weighing 64 quintals valued at Rs. 5,12,000/-along with Sri Asif Hussain as apprehended person and the seizure case was started.
10. It is further stated in the said affidavit that after demand for justice was made on behalf of the petitioners by his learned Advocate claiming release of the goods the Superintendent of Customs, Jangipur Customs Preventive Unit ordered enquiry into the claim of the applicant and on examination of the available records of M/s. Bengal Traders it was found that they have no licence/registration/permission in support of their legal possession/storing of the goods so seized as the documents they showed/produced relates to their retail shop at Dhuliyan Cinema Road. It has been further stated in the affidavit that in the voluntary statement Sri Asif Hussain stated that they have wholesale business of spices but in the writ petition he stated that he sold spices on retails as such the “possibility of storing the goods for the purpose of illegal exportation cannot be ruled out”.
11. It has been further stated in the paragraph 9 of the said affidavit that “storage of such huge quantity of spices without knowledge of any government authorities lead to idea of the goods being liable to be illegally exported and the same was seized under Section 110 of the Customs Act 1962”.
12. It will thus appear from the aforesaid affidavit filed by the Customs Authorities who passed the order of seizure in respect of the goods in question, that the reason for such seizure under Section 110 of the Customs Act was on the purported reasonable belief that the goods are liable to be confiscated under Section 113 of the Act as storage of such huge quantity of spices without the knowledge of the Government Authorities lead to the idea the goods are liable to be illegally exported and because of the alleged inability of the petitioners to produce/licence/registration/permission in support of the legal possession/storage of goods so seized and the possibility of storing the goods for the purpose of illegal exportation cannot be ruled out.
13. The aforesaid affidavit of the customs authorities who passed the order of seizure in respect of the goods in question will indicate that there was no overt act whatsoever which can constitute an attempt of export the goods in question and it was also not the case of Customs authorities that there was any such overt act; but it was their case that because of the alleged failure to produce documents by the petitioners and storing of such huge quantity of goods in the godown without any permission from the government, the possibility of storing of the goods for the purpose of illegal exporation cannot be ruled out and since because of such Act on the part of the petitioner the goods are liable to be illegally exported, the same were seized.
14. The BSF Authorities initially did not file any affidavit inspite of the direction of the court although they produced records wherefrom it appeared that no seizure list was prepared by the BSF authorities nor any order of seizure was passed under Section 110 of the Customs Act as a customs officer although admittedly such goods were taken away by them on 7th December, 1996. It also appeared from the said records that the seizure list was prepared only by the customs authorities after the goods were handed over to them by the BSF Authorities on 8th of December, 1996. The said records also contain a detailed report regarding the operation conducted on specific information wherefrom it appears that on 6th December, 1996, allegedly on receipt of an information regarding smuggling activities raids were conducted on 6th and 7th December, 1996, at the godown of the present petitioner. But such report was prepared only on 21st January, 1997, that is after the order of seizure was passed by the Customs Authorities and when the present writ application challenging such seizure was being heard by this Court.
15. It will further appear from the said records produced before this Court that there is only one document anterior to the date of seizure, namely a radiogram-message dated 7th December, 1996, issued by the Commandant 41 BN, BSF to SHQ, BSF, KNR wherein it was alleged, inter alia, that on specific information of JAD (G) BSF, KNR, same party along with Dhuliyan Customs and OC Police Station Sumser Nagar seized 127 bags black peppers spices…”as by claimed/out going smuggled it BN from a very well fortified godown of Bengal Traders”; the message also does not indicate that there was any attempt to export the goods.
16. In the said records there is nothing to indicate that the respondents before carrying on the raid on 7th December, 1996, and before seizure on 8th of December, 1996, or on the date of such raid and seizure or anterior thereto received any information that such goods were sought or attempted to be exported illegally by the said Bengal Traders.
17. It has rightly been contended by Mr.Saktinath Mukherjee the Ld. Sr. Counsel appearing for the petitioner relying on the decision of the Supreme Court in the case of Mahinder Singh v. Chief Election Commissioner, that when statutary functionaries make an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by a fresh reason in the shape of affidavit or otherwise. It has been submitted the validity of the impugned order of seizure therefore has to be judged on the ground disclosed in the order of seizure itself and such order itself will indicate that the order of seizure is wholly jurisdiction in as much as the goods have been seized on the alleged reasonable belief that the goods are liable to be exported, which however does not make the goods liable to confiscation under Section 113 of the Customs Act under which liability of confiscation arises only when the goods are attempted to be exported illegally.
18. But even the records of the case as pointed out herein above and the affidavits filed by the respondents do not indicate that there has been any attempt to export the goods illegally making the same liable for confiscation under Section 113 of the Customs Act.
19. The case made out by the said respondents in their affidavit is that on the basis of an information gathered by the JAD (G) BSF Krishnanagar the said Officer along with Customs staff of Dhuliyan and officer-in-charge of Sumsergange Police Station conducted search operation in the godown of Bengal Traders and they seized 127 bags black peppers weighing 6350 Kgs. valued at Rs. 5,12,000/- and also apprehended the proprietor of the godown as he could not produce any valid documents for stocking/dumping said black pepper in the godown; the apprehended person alongwith seized black pepper were handed over to customs office, Dhuliyan vide customs Case No. 40/EXP/CL/ DHN/BSF/96 dated December 8, 1996. It is further alleged in the said affidavit that from the seizure effected by the party consisting of BSF and others, it appears that the smugglers are managing to “dump huge quantity of outgoing contraband goods in the godowns available with the connivance of staff of these godowns for further smuggling same in small quantities to Bangladesh on getting chance. The Commandar deployed on the borders have been briefed to liaise with sister agencies for getting such advance information as well as for conducting such co-ordinated operations for detecting such smuggling activities in their area of responsibility.” It is further stated in paragraph 8 of the said affidavit that 64 quintals of black peppers were recovered from the petitioners which cannot be consumed by the people of Murshidabad District and no documentary evidence even were shown “that they have been carrying on black peppers in the past which would show the reasonable belief in the minds of the seizing officers” as a result of which the power of seizure under Section 110 of the Customs Act was exercised.
20. The said affidavit of the BSF therefore also factually do not indicate that there was any overt act constituting an attempt to export the goods on the part of the petitioner and it is also not stated in such affidavit that there was any such overt act; but it has been stated the storing of such huge quantity of black peppers in the godown give rise to a reasonable belief of probability of export illegally.
21. Mr. Sarkar Ld. Senior Counsel appearing for both the Customs Authorities as well as the BSF Authorities have taken the court through the various provisions of the Customs Act relating to searches/seizures namely Section 100, 101, 102, 104, 105, 106A, 107 etc. of the Customs Act contending inter alia, that for the purpose of search and seizure a proper officer of the customs department can conduct a search and search any person, any premises or godown, can take such a person who is searched to the nearest gazetted officer of customs or Magistrate for the purpose of such search and for the aforesaid purpose can detain him and can even arrest a person under certain circumstances.
22. It has been submitted by Mr. Sarkar that on receiving an information about smuggling activities the godown of the petitioner was searched by the BSF personnel and one of the persons was detained and was taken for an examination and subsequently such goods along with such detained person were handed over by the customs authorities which were seized under Section 110 of the Customs Act on reasonable belief that the same is liable for confiscation and as such seizure was made on such reasonable belief, no interference is called for by the writ court at this stage as the same will only hamper the investigation. It has been further submitted that it is not for the writ court to go into such question or to act as a court of appeal over such reasonable belief of the appropriate authority making the seizure. Certain decisions have also been relied upon by Mr. Sarkar contending, inter alia, that even in the case when the goods may be at the godown, the same may be seized on reasonable belief of being liable for confiscation under Section 110 of the Customs Act.
23. It has also been submitted by Mr. Sarkar that by virtue of a notification the BSF personnel can exercise the power of the customs officers under the aforesaid provisions of the Customs Act and the BSF personnel in exercise of such power searched the godown of the petitioner and detained one of the partners, While such power of the BSF personnel as custom officer to search such godown and detain a partner cannot be disputed and has not been disputed by the petitioners, Mr. Sarkar has failed to satisfy the court as to how the BSF personnel could remove the goods from the godown on 7th December, 1996 when admittedly they did not pass any order of seizure on that day and did not even prepare a seizure list. The removal of the goods in the manner aforesaid was unwarranted in law.
24. Since the goods are liable to confiscation on an attempt to illegally import the same under Section 111 of the Act or an attempt to illegally export under Section 113 of the Customs Act, the reasonable belief as to the liability of confiscation for the purpose of seizure under Section 110 of the Act has to be formed vis-a-vis Section 111 or 113 of the Act. We are however concerned in the present case with Section 113 of the Act under which the export of goods shall be liable to confiscation under the various circumstances as indicated in Clauses (a) to (j) of the said section, as the seizure has allegedly been made on the reasonable belief of liability to confiscation for liability to be exported.
25. The reasonable belief of the appropriate officer under Section 110 of the Customs Act for the purpose of seizure that the goods are liable to be confiscated therefore must be vis-a-vis Section 113 of the Customs Act in the instant case. It is true as contended by Mr. Sarkar that the court will not sit in appeal over such a belief of an appropriate officer nor will question the adequacy of the materials on which such reasonable belief is formed. But in fit and proper case the court can certainly examine whether there is any material at all for such a reasonable belief in as much as a reasonable belief is not mere suspicion but something more than suspicion and more than suspicion is necessary to give rise to a reasonable belief. It has to be based on some informations and materials and such information or materials must also be anterior in point of time to search and seizure and not subsequent thereto. The appropriate customs authority therefore although no doubt is the judge of his own information or materials on the basis of which such a reasonable belief is to be formed for exercise of power under Section 110 of the Customs Act, the court can certainly interfere in case of arbitrary exercise of power if it is found in a fit and proper case when such seizure is under challenge, that there was no information or materials at all for such reasonable belief. The court may also interfere if it is found that the seizure has been made even if the goods are not liable to confiscation.
26. It was held in the case of Collector of Customs v. Sam Pathu Chitti, (at page 337, paragraph 45) that reasonableness of the belief has to be judged by all the circumstances appearing at that moment. In the case of Pukhrqj v. Dear Koli, it was held (paragraph 8) that the court is not sitting in appeal over the reasonable belief of the concerned officer but the court can consider whether there is ground which prima facie justified such reasonable belief. Both the aforesaid two decisions by the Supreme Court were rendered in- cases under the Customs Act.
27. In case of S. Narayanappa v. Income Tax Commissioner, Bangalore, Supreme Court while interpreting Section 34(1)(a) of the Income Tax Act 1922. which empowered the Income Tax Officer to issue notice in respect of assessment beyond the period of Four years if he has reason to belief that the previous asessment was under-assessed held that such belief must be held in good faith and cannot be mere pretence and existence of belief is justiciable but not sufficient grounds of belief. It was held reason to believe in Section 34 does not mean a purely subjective satisfaction but the same must be held in good faith and it cannot be merely a pretence and it is open to the court to examine the question whether reasons for the belief have a rational connection or a relevant bearing to the formation of the belief and are not extraneous or irrelevant to the purpose of the section.
28. It has been held in the case of Assistant Collector of Customs v. Malhotra, (paragraph 13) following its earlier decision in the case of Narayanappa v. Commissioner of Income Tax. Bangalore, reported in AIR 1967 SC 523 that the satisfaction as to the reasonable belief under Sub-section 1 of Section 110 of the Customs Act is not absolutely subjective in as much as the reason for the belief of the appropriate officer have to be relevant and not extraneous.
29. In the instant case admittedly it has been stated in the order of seizure itself under Section 110 of the Customs Act that such goods have been seized on the reasonable belief that same are “liable to be exported” outside India. But liability of confiscation under Section 113 of the Customs Act of 1962 arises when there is attempt to export the goods illegally and not when the goods are liable to be exported illegally. So far as the Section 113 of the Act is concerned the Sub-clauses being (a) to (j) thereunder indicate the various situations and circumstances of illegal attempt to export goods making the same liable for confiscation.
30. In the impugned order passed under Section 110 of the Customs Act it is not indicated under which clause of Section 113 the goods are liable to confiscation. But under none of the Sub-clauses (a) to (1) of Section 113, any goods “which are liable to be exported illegally” are liable to be confiscated.
31. It will appear from the aforesaid clauses of Section 113 that in each case when there is an attempt to export the goods outside India illegally, the same becomes liable to confiscation under Section 113 and not otherwise.
32. The impugned order of seizure is therefore ex facie wholly contrary to the provision of Section 110 and Section 113 of the Act as the said order itself indicates that appropriate authority had no reasonable belief at all that the said goods having been attempted to be exported illegally are liable to be confiscated under Section 113 of the act and liable to be seized under Section 110 of the Act.
33. On this ground alone therefore the writ application is liable to succeed.
34. Not only the impugned order of seizure does not disclose ex facie that the goods were attempted to be exported illegally and therefore liable to be confiscated and hence liable to be seized, no materials have been produced before this Court to show there was any material whatsoever for formation of reasonable belief that the goods are liable to be confiscation being attempted to be exported illegally.
35. As it will appear from the admitted facts of the case that the impugned seizure has been made by the Customs Authority themselves on 8th October, 1996 after the goods were handed over to them by the BSF Authorities. No material however has been produced before this Court by the Customs Authority on the basis of which they were of the requisite reasonable belief for exercise of power under Section 110 read with Section 113. Assuming the records produced by the BSF Authorities can be treated as materials of the customs authorities for the purpose of seizure even then it does not appear there was any material or information prior to the search of the godown of the petitioner on which the requisite reasonable belief under Section 110 read with under Section 113 can be formed. The only material which is there in the record prior to the search of the godown of the petitioner and the BSF Authorities is an allegation that an information has been received as to the smuggling activities in the various places. From the said records it does not appear that there was any material or information received by the BSF Authorities to the effect that the petitioner were making any attempt to export such goods illegally.
36. As pointed out hereinbefore from the affidavits of the Custom Authorities and the BSF Authorities also it does not appear that there was any attempt of exportation of the goods illegally and therefore there was no material or information for formation of reasonable belief that the goods are liable to be seized being liable to be confiscated under Section 113 being attempt of illegal exportation on the contrary it is the specific case of the Customs Authorities and the BSF Authorities in the affidavits that storing of huge quantity of such spices in godown (which according to them was without permission and without proper papers) give rise to a reasonable belief that there is a probability for exportation such goods illegally.
37. The same however cannot be the requisite reasonable belief within the meaning of Section 110 of the Act, but are merely suspicion of such authorities that there is a probability of exportation of illegally. But mere suspicion cannot be a reasonable belief within the meaning of Section 110 of the Act.
38. That apart the custom authorities in the impugned order in their affidavit has also not stated that storing of such goods in godown has given rise to a reasonable belief that goods are illegally attempted to be exported outside India but because of such storage of huge quantity of spices in the godown it has given rise reasonable belief that the goods are liable to be exported illegally. But liability for exportation is certainly not attempt to export and not even an overt act constituting an attempt to export, but for which the goods cannot become liable for confiscation.
39. There has to be an overt act on the part of the concerned person for constituting an attempt to export. The view which I am taking is supported by decision of the Madras and Bombay High Courts. It has been held by the Madras High Court in the case of Ranjit Export (P) Ltd v. Collector of Customs, Madras, that without there being any overt act towards movement of the goods for taking them out of India there cannot be attempt to export. Same is the view taken by Collector, Central Excise and Gold Control (CEGAT) (CEGAT) and (CEGAT) where it has been held, inter alia, that without actual movement of the goods there is no attempt to export and when the goods were kept in a private godown for six months without any movement of the same towards Nepal, there was no attempt to export.
40. The ld. Counsel appearing for the respondents has relied on the decision of the Supreme Court in the case of State of Maharastra v. Md. Eaqub, reported in AIR 1980 SC page 1111, for the purpose of explaining the meaning and purport of the word “attempt”.
41. But the aforesaid decision of the Supreme Court inspite of helping the respondents really helps the petitioner as in the aforeasaid decision also the Supreme Court held that without such an overt act there cannot be “attempt” to commit an offence. It has been held by the Supreme Court in paragraph 13 of the said decision that what constitutes “attempt” is a mixed question of law and fact depending largely on the circumstances of the particular case. The Supreme Court held as under:–
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 there is a distinction between ‘preparation’ and ‘attempt’. Attempt begins where preparation eixts. In sum, a person commits the offence or “attempt to commit a particular offence” when (0 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 penaltimate act towards the commission of that offence but must be an act during the course of committing that offence.
42. Applying the aforesaid principles in the said case Supreme Court held under the facts and circumstances of that particular case that there was a clear attempt of export of illegal goods and the offence was committed. In the said case the vehicles in question were proceeding towards a creek at about mid night followed by the customs officers; the said vehicles were haulted near a bridge at a creek; thereafter the accused removed some small and heavy bundles from the truck and placed them aside on the ground when the customs officers rushed to the spot; at the same time the sound of the engine of a mechanised sea crafts was heard by the officers; the officers surrounded the vehicles and found four silver ingots near the foot path leading to the creek. The Supreme court was of the view under such circumstances not only there was clear intention and preparation to export illegally that is also clear attempt of export short of actual export.
43. If the aforesaid principles enunciated by the Supreme Court is applied in the present case it will leave no manner of doubt that there was no attempt to export the goods illegally or even preparation in respect thereof.
44. Admittedly the goods were lying in the godown and there was no overt act constituting an attempt to export the same. The allegation of the respondents in their affidavit that storing of such huge quantity of spices in such godown allegedly without permission or without having necessary documents in respect thereof, if at all, at most can show an intention to export illegally, but by no stretch of imagination the same can be extended even to preparation for illegal export, far less to speak of attempt to illegal export.
45. The full bench decision of this Hon’ble Court in the case of Euresian Equipment and Chemicals Ltd. v. Collector of Customs, relied upon by the respondents does not help them either.
46. In the aforesaid case the full bench was considering, inter alia, the question, in a situation where the goods have already been exported illegally whether the liability to confiscation under Section 113 of the Act will arise. It was held in the said case in paragraph 26 of the judgment that Section 113(d) makes it clear that the liability to confiscation will arise if the attempt to export is contrary to any provision imposed by or under the Customs Act or any other law for the time being in force. It was further held that the liability to confiscation arises and is incurred as soon as the goods are attempted to be exported contrary to any such prohibition and attempt to export the goods must necessarily precede the actual exportation of the goods and under such circumstances the liability for confiscation on attempt to export illegally does not extinguish with the actual export of the goods.
47. The decision relied upon by the respondents in the case of The Land Customs Inspector v. Jagannath Bhandari, is not at all applicable in the instant case. In the said decision the court was considering the question whether a notification could be interpreted under the Land Customs Act giving jurisdiction to the land customs officer to seize goods from a place far away from the border area. In the said case the concerned person carried on business at Bhagalpur dealing with various articles including bettlenuts admittedly coming from Pakistan.
48. In any event none of the decisions which have been cited by the Ld. Counsel appearing for the respondents help them to sustain the order of seizure which admittedly has been made on the purported reasonable belief that goods are liable to confiscation under Section 113 of the Customs Act being “liable to be exported”.
49. Not only no liability of confiscation under Section 113 arises if the goods are liable to be exported, such liability of export by no stretch of imagination can be equated with attempt to export.
50. ‘Liable’ means as per Black’s Law Dictionary, 6th Edition, inter alia, bound or obliged in law, equity; exposed or subject to a given contingency risk of casualty which are more or less probability; future possibility or probability of happening which may not actually occur and relates to an occurrence within the range of possibility.
51. As per Shorter Oxford English Dictionary, 3rd Edition, “liable”, inter alia, means subject to the possibility of doing or undoing something undesirable.
52. Liable to be exported therefore would mean that there is future possibility or probability of exportation of the goods although the same may not actually occur. But since no liability for confiscation arises under Section 113 for such possibility or probability of exportation of any goods in future illegally, there cannot be any reasonable belief under Section 110 of the Customs Act as to such liability of confiscation and consequentially the exercise of power under Section 110 of the Act by the respondent was wholly without jurisdiction and arbitrary.
53. Mr. Sarkar has submitted, inter alia, that it is not for this Court to sit in appeal on the reasonable belief of the appropriate officer nor the court should review the action of the customs officers at the investigation stage with legal microscope. In support of his aforesaid contention he has relied upon on the decision of Supreme Court in the case of Union of India v. Shyam Sundre where the Supreme Court was of the said view following its earlier decision reported in AIR 1987 SC page 132 and AIR 1962 SC page 1559. In the said case of Shyam Sundre the Supreme Court also held that the court not to sit in appeal over the reasonable belief of the appropriate officer so long prima facie there were grounds to justify his belief (emphasis mine).
54. He has also relied upon the decision of Satyabrata Sinha, J, in the case of Bowriah Cotton Mills Co. Ltd. v. Commissioner of Customs, Calcutta . In support of his contention that at this stage there should be no interference by the writ court.
55. While there cannot be any quarrel with the aforesaid proposition of law settled by the Hon’ble Supreme Court, the liability of confiscation under Section 113 arises only under a situation contemplated under the said provision of the Act and the power under Section 110 can therefore be exercised by the concerned customs officer only if he has reason to believe that the goods are liable for confiscation and not merely on suspicion in respect thereof. As the impugned order itself discloses that there was no liability of confiscation of the goods under the Act and there was no material or information on which there can be reasonable belief as to the liability of such confiscation even prima facie, the court is certainly not powerless to interfere as in absence of such reasonable belief, the seizure of goods will be wholly contrary to the Act and arbitrary. In the case of Bowriah Cotton Mills the Ld. Single Judge did not interfere under the facts and circumstances of that particular case and it was never held in the said case that the court cannot interfere under any circumstances even though ex facie it appears that there is no liability of confiscation under the relevant prohibition of the Act and consequently there cannot be reasonable belief in respect thereof.
56. In the result the writ application succeeds. The impugned order of seizure is hereby quashed. Let a writ in the nature of certiorari be issued accordingly.
57. The respondents are directed to release the seized goods to the petitioner forthwith. Let a writ in the nature of mandamus be issued accordingly.
58. There will be no order as to costs.
59. Ld. Advocate for the respondents prays for stay of the operation of the order. After considering the submissions, I do not find any reason to stay the operation of this order as it has been found by this Court that the order of seizure was wholly arbitrary and against the provisions of the Act.
60. Certified copy/xerox certified copy of this order and judgment, if applied for being granted as expeditiously as possible.