JUDGMENT
M.B. Shah, J.
1. This Special Civil Application is filed against the judgment and order dated 25-2-1976 passed by the Additional Collector of Customs, Ahmedabad, under Section 113(c) of the Customs Act, 1962, confiscating 90 …….. silver bars weighing 2770.900 kgs. and imposing a penalty of rupees two lacs against the petitioner under Section 114 of the Customs Act. By the impugned order, penalty of Rs. 2000/- was imposed against one Bhagwanji Gulabbhai Desai, who is not petitioner before this court. Against the said order the petitioner preferred appeal before the Central Board of Excise, and in appeal the said order is confirmed. The petitioner has therefore also challenged the order passed by the central Board of Excise and Customs.
2. The learned counsel for the petitioner vehemently submitted that the order passed by the Additional Collector and the Appellate order passed by the Central Board of Excise and Customs are illegal as the department has failed to establish the material ingredients of Section 113(c) of the Act. He contended that there is nothing on record to show that the petitioner brought the silver bars near the cost of India or near any bay, gulf, creek or tidal river for the purpose of being exported. It is his contention that even for the time being if it is presumed that petitioner has brought the said silver at village Tukwada, then also at the most it would amount to preparation for committing an offence, but it cannot be said that the petitioner has committed any offence.
3. For appreciating the contention which is advanced by the learned counsel for the petitioner, it would be necessary to refer to the fact which are relied upon by the Additional Collector. The Customs Officer of Vapi received information at 2.00 hours at night on 27-8-1968 regarding concealment of huge quantity of silver which was meant for illegal export out of India. They received the information that it was kept in the house of one Manibhai Jaganji Desai of Tukwada village near Vapi. In presence of panchas house of Manibhai Desai was searched at 2.30 a.m. In the course of search the officers recovered 90 bars of silver weighing 2,770.900 kgs. from the closed room of the house of Manibhai Desai. The copy of the panchnama is produced at Annexure-D to this petition. Manibhai Desai was not in possession of any documents in the form of purchaser vouchers or transport documents to show mala fide acquisition and possession of the silver bars found in his house. Manibhai Desai disclosed, that the said silver bars were deposited in his house by one Manilal Bhanabhai Patel of Dabhel, who was resident of Vapi. Manilal Patel wanted to store the silver secretly for a short period, that is, for one night only. The said silver bars were seized by the officers on a reasonable belief that they were liable to confiscation under the Customs Act, 1962.
4. The statements of Manibhai Desai and his wife Smt. Maniben were recorded on 27th August 1968 under Section 108 of the Act. The copy of the statement of Manibhai Desai is produced at Annexure-E to this petition. It is the say of Manibhai Desai that he was resident of village Tukwada. On 27th August 1968 at night time at about 2.30 a.m. 7 to 8 persons came to his house. One person was Bhagwanji Gulabji Desai who was his relative. After 10 minutes, petitioner (Manibhai Bhanabhai Patel) also came there. He informed him that his vehicle was out of order and therefore he may be permitted to store the goods for a night. In the morning, he would bring other vehicle and take it away. Bhagwanji Desai also informed him that there was no difficulty in permitting the petitioner to keep his goods in his house. Therefore, all of them, through their labourers placed the silver bars in his house. He has not charged any rent for permitting the petitioner to keep the silver in his house. Manibhai Bhanabhai and Bhagwanji Desai were talking something secretly. He was not aware about it. This all happened at about 2.00 a.m. at night. All of them informed him to keep the courage and not to fear. He also stated that he was not knowing what business Manibhai was doing. It is his say that he was knowing that silver was smuggled out of the country from Daman and that large quantity of silver was seized and therefore he had requested Manibhai and Bhagwanbhai not to keep the said silver bars in his house. Bhagwanbhai however informed him not to be apprehensive. If something happens, he would take care of it and that nobody would come to know that silver is kept in his house. It is his say that as Bhagwanji was his relative and was insisting, therefore he could not displease him. He further stated that he feared in saying no to these persons, as the word was of a fisherman and if he refuses then it was likely that they may harass him. As he and wife were old persons, it was not possible for them to have enmity with anyone.
5. On the same day the statement of Bhagwanji Gulabbhai Desai was also recorded. That is also at Annexure-E to this petition. Bhagwanji Gulabbhai stated that he was resident of village Tukwada. At about 10.30 p.m. Manibhai of village Dabhel (petitioner) came to his house. He came in one jeep car and informed him that his silver was to come and that he intends to keep it at the house of Manibhai Jaganji Desai; Manibhai Jaganji Desai was hesitating in keeping the silver therefore he should come along with him and request him to permit him to keep silver. He therefore went at the house of Manibhai Jaganji and had a talk with him and Manibhai Jaganji asked him whether he would be paid his remuneration as keeping of silver was hazardous. Thereafter petitioner and Manibhai Jaganji had a talk. Subsequently Manibhai Jaganji informed that if smuggling was involved it was hazardous. At that time Manibhai of Dabhel village (petitioner) said that he would take care of it and he should not worry. He would also be paid his remuneration; nobody is going to know about it. After this talk Manibhai Jaganji agreed to keep the silver. It is his further say that thereafter he was not aware what had happened. He was not aware who was the real owner of the silver. Manibhai informed him about it. He has only informed him that the silver was to be kept for one day at the house of Manibhai Desai and that it was to be disposed of at the earliest and that it was to be kept secret.
6. Considering the panchnama and the statements of Manibhai Desai, Bhagwanji Desai, Maniben Desai, that is wife of Manibhai Desai and the conduct of the petitioner in absconding for a period of more than two months, and the false explanation given by the petitioner, the Additional Collector of Customs arrived at a conclusion that the petitioner had brought the silver at village Tukwada which is near a coastal area for being exported and therefore passed an order under Section 113(c) of the Customs Act, 1962.
7. For appreciating the contention raised by the learned counsel for the petitioner, it would be necessary to consider Section 113(c) of the Customs Act. It reads as under :-
113. The following export goods shall be liable to confiscation –
(c) any dutiable or prohibited goods brought near the land frontier or the coast of India or near any bay, gulf, creek or tidal river for the purpose of being exported from a place other than a land customs station or a customs port appointed for the loading of such goods.”
As per this sub-section, before passing an order of confiscation of the goods, the department is required to arrive at the conclusion :-
(1) that the goods are dutiable or prohibited goods,
(2) that the goods are brought near the land frontier or the cost of India or near any bay, gulf, creek or tidal river,
(3) the goods are brought for the purpose of being exported and,
(4) the place must be other than the land customs station or a customs port appointed for the loading of such goods.
8. With regard to the first ingredient there is no dispute that silver is prohibited goods for export. Similarly, with regard to fourth ingredient, it is not the case of the petitioner that he was taking the said silver bars at land customs station or, a customs port appointed for loading such goods for being exported.
9. However, with regard to the remaining two ingredients, learned counsel for the petitioner vehemently submitted that village Tukwada cannot be said to be near coast of India or near tidal river. It is his contention that there was no prohibition for a citizen to take goods within a particular area and at the relevant time, the provisions of Section 11H or 11M of the Customs Act were not in force.
10. In our view, there is no substance in the aforesaid contention of the learned counsel for the petitioner. The Parliament has specifically used phrase “near the land frontier” or “near the coast of India”. It has not used the phrase that goods should be brought on the coastal area. The phrase near the coastal area would indicate that if it is brought at some short distance place from the coastal area or the land frontier then it would be near the coastal area or the land frontier. There is no justification in restricting the meaning of the word “near” to mean that it must be adjoining to the coastal area or at the land frontier area. In case of Hukma v. The State of Rajasthan, AIR 1965 SC 476, the Supreme Court had occasion to consider the phrase ‘area adjoining land customs frontier’, as provided under Section 3 of the Land Customs Act (1924). Section 3 of the Land Customs Act authorised the Central Government to appoint by notification in the official gazette one person to be the Collector of Land Customs for any area adjoining a foreign frontier. In that case, court negatived the contention that only few miles near the frontier can be considered adjoining to the frontier by holding that there was no justification for such a restricted meaning of the word adjoining. It also held that the village next to the frontier adjoins the frontier; it would be equally correct to describe the entire District nearest the frontier as adjoining the frontier. Therefore considering the phrase used in Section 113(c) it will be clear that if the goods are brought near the coast of India which may be 5 to 10 k.m. from the coast or nearby, it can be said that the second ingredient of Section 113(c) of the Customs Act is satisfied. It is true that there is no prohibition for a citizen to keep in his custody silver even in coastal area. Further Sections 11H or 11M were not in force at the relevant time. But that would not mean that if the goods are brought near the coastal area for the purpose of being illegally exported, Section 113(c) of the Act would not be applicable. Section 113(c) would be immediately applicable if it is shown that a citizen staying in coastal area has kept in his custody prohibited goods for the purpose of being exported. Therefore in our view, there is no substance in the contention of learned counsel for the petitioner that it cannot be said that the goods found at village Tukwada which is at a distance of 10 km. from Daman would not be covered by the expression “near the coast of India”. The Additional Collector has already rightly considered this aspect. He has arrived at a conclusion that there was a katcha road from Daman to village Tukwada and the expression near the coast of India is to be interpreted in a relative sense and not in absolute terms; the question whether particular place was near the cost would depend on the topography of the land, the availability of various means of transport, the possibility of engaging labourers for transport etc. He therefore held that village Tukwada had to be considered as a place near the coast of Daman and therefore essential ingredient of Section 113(c) of the Act has been satisfied by the department. At present, we are ignoring the contention raised by the respondents that village Tukwada is hardly a furlong away from the tidal river Kilak.
11. The next material ingredient required to be established is whether the goods brought at village Tukwada were for the purpose of being exported. For holding that it was for the purpose of being exported, the Additional Collector has relied upon the statements of Manibhai Desai, Bhagwanji Desai and on the circumstantial evidence. He arrived at a conclusion that the petitioner has failed to prove his contention that silver was being taken by him to Navsari and because of break-down of the truck he has to store it in the house of Manibhai Desai of Tukwada. He held that at no stage of adjudication proceeding petitioner could produce the actual transport documents in the form of consignment notes etc., under which the silver bars were being transported to Navsari; the registration number of the truck by which the bars were carried or the name of the transport company which was engaged for carriage of silver was not disclosed; he has not disclosed places from which the silver bars were being actually carried on that day nor any evidence in support of his contention that there was break-down of the truck. He further arrived at a conclusion that if the silver was being carried for legitimate purpose the petitioner would have taken the silver and stored it in his house at village Dabhel which was to the west of Vapi and would not have chosen a village more than a furlong away from the main road. There was no explanation why the house of Manibhai Desai was selected for depositing the silver. The Additional Collector further held that it was not at all explained why the house of Bhagwanji Desai was not used for the storage of silver even though Bhagwanji Desai was known to the petitioner. He further relied upon the statement of Bhagwanji Desai, Maniben Desai and the panchnama for arriving at a conclusion that the said silver was kept there for being illegally exported.
12. Therefore, considering the order of the Additional Collector and the statements upon which the reliance is placed by the Additional Collector, following facts emerge :
(1) Petitioner has not produced any record before the Additional Collector to substantiate his say that he was taking 2770.900 kgs. of silver bars to Navsari.
(2) The petitioner has not produced on record before the Additional Collector the transport document in the form of consignment notes etc., he has not disclosed the truck number or the name of the transport company which was engaged for carriage of silver.
(3) There was no necessity of storing the said silver at the house of Manibhai Desai even in the case of breakdown of the truck, as alleged by the petitioner because petitioner could have stored it at his own house at village Dabhel or at the house of Bhagwanji. In any case he could have used the jeep-car by which silver was brought to Tukwada for taking at Navsari.
(4) The statement of Manibhai Desai reveals that petitioner and Bhagwanji were talking something secretly and had asked Manibhai Desai to keep the silver bars for a night without any fear. He also requested the petitioner as well as Bhagwanji not to involve him in a risk. To that, Bhagwanji assured him that if something happens they would take care of it and nobody would come to know about keeping of silver in his house.
(5) The statement of Bhagwanji Desai reveals that as Manibhai Jaganji was hesitating in keeping silver bars at his house, petitioner went at the house of Bhagwanji and requested him to see that Manibhai Jaganji keeps the silver at his house. Manibhai Jaganji Desai specifically informed that if the goods were for smuggling, he would be involved. At that time, petitioner replied that he would take care of everything, he should not worry about it and that remuneration for keeping the silver would be paid to him. He also told that nobody was to know about it.
(6) For a period of nearly two months from the date of the seizure of large quantity of silver, the petitioner had not claimed its ownership. Only, by a letter dated 22nd November 1968, the petitioner informed Vapi Customs Officers that the said silver belonged to the firm of Manibhai Kadarbhai and company of Vapi. If the petitioner has kept the silver for legitimate purpose at the house of Manibhai Desai at village Tukwada, he would not have waited for a period of two months.
(7) On the basis of the said letter, inquiries were made by the Customs Officers to find out whereabout of the firm of M/s. Manibhai Kadarbhai of Vapi Summons was issued to Manibhai Patel to produce the books of accounts. The said summons was returned by the postal authority with remarks that no such firm was existing. The inquires were made with the Nagar Panchayat of Vapi, Sales Tax Officer of Bulsar having jurisdiction over Vapi, Income Tax Officer of Bulsar having jurisdiction over Vapi, to ascertain about the actual address of the firm at Vapi, but the aforesaid inquiries revealed that no such firm was known to be existing at Vapi. Still however, alongwith this petition, copy of the partnership deed was produced by the petitioner alongwith dissolution deed dated 4-11-1969 and some notices of income tax department in the year 1972-73. All these documents cannot be looked into at this stage in Special Civil Application. Therefore, in our view, it is not necessary to appreciate the contention of the learned advocate for the respondents that the said partnership deed is bogus and is executed after the silver bars were seized. It is also not necessary to consider the contention that the income-tax order passed by the income-tax department in 1972, reveals that the petitioner has failed to prove before the Income Tax Officer that the petitioner has paid purchases price for the said silver worth Rs. 16,67,127/-.
13. The question, therefore, is whether from the aforesaid circumstances, can it be said that the Additional Collector, Customs illegally arrived at a conclusion that the petitioner kept the silver bars weighing 2770.900 kgs. at the house of Manibhai Desai at village Tukwada for the purpose of being exported.
14. Mr. Karmali, learned counsel for the petitioner vehemently submitted that even if it is presumed that the aforesaid facts or circumstances are established, it would not mean that the petitioner attempted or made preparation to export the said silver bars because the petitioner can change his mind at the last moment and therefore, it cannot be said that the silver bars were kept at the house of Manibhai Desai for being exported. For this purpose, the learned counsel for the petitioner heavily relied upon the decision of Supreme Court in the case of Malkiat Singh v. The State of Punjab – AIR 1970 SC 713 wherein the court held that only preparation to commit an offence was not an attempt to commit an offence. The relevant discussion is at page 715, which is as under :-
“The test for determining whether the act of the appellants constituted an attempt or preparation is whether the overt acts already done are such that if the offender changes his mind and does not proceed further in its progress the acts already done would be completely harmless. In the present case it is quite possible that the appellants may have been warned that they had no licence to carry the paddy and they may have changed their mind at any place between Sarallha Barrier and the Delhi-Punjab boundary and not have proceeded further in their journey. Section 5 of the Essential Commodities Act stated that “any person who attempts to contravene, or abets a contravention of, any order made under Section 3 shall be deemed to have contravened that order”. But there is no provision in the Act which makes a preparation to commit an offence punishable. It follows therefore that the appellants should not have been convicted under Section 7 of the Essential Commodities Act”.
He also sought to rely upon certain decisions of the Collector of Customs, which are on the similar line that petitioner’s act may at the most amount to preparation for goods being exported.
15. In our view this submission has no force. As per Section 113(c) it is not for the authority to establish that petitioner attempted to export the prohibited goods. The authority is required to establish that petitioner brought the goods near coastal area for the purpose of being exported. Therefore, the conditions existing at the time when the goods were brought near coastal area is to be ascertained for arriving at a conclusion whether they were brought near the coastal area for being exported.
16. To overcome the difficulty of establishing the ingredient of attempts to export Section 113(c) is added with a specific object that if the goods were brought near the land frontier or the coast of India for the purpose of being exported from a place other than a customs station the goods shall be liable to confiscation. This provision was added to overcome the difficulty that even if the large quantity of prohibited goods were brought to a small village near the border for the purpose of export, yet it was not possible to hold that there was an attempt to export the said goods illegally. This would be clear from the object and reasons of incorporating Section 113(c). Under the Sea Customs Act, 1878, similar provision was not there. The object and reasons of adding Section 113(c) is as under :-
“Item (c) is a new provision under which if any dutiable or prohibited goods are brought near the land frontier or the coast of India for the purpose of being exported from a place other than customs station, the goods shall be liable to confiscation. This new provision is being made because an attempt to export cannot be said to have been made even if large amount of currency is taken to a small village near the border for the purpose of export in payment of smuggled goods”.
Further considering the provision of sub-section 113(b) and (d) it is apparent that it deals with any goods attempted to be exported while sub-section 113(c) provides for bringing of goods near the land frontier or the coast of India for the purpose of being exported. Hence under sub-section 113(c) there is no question of establishing ingredient of attempt to export. The authority is required to establish that the person has brought dutiable or prohibited goods near the land frontier or coast of India for the purpose of it being exported illegally. If goods are brought near the land frontier or coastal area, whether they were brought for the purpose of being exported would depend upon the intention of the person concerned. That intention can be inferred from the circumstances of the case.
17. Apart from this aspect, the decision in the case of Malkiat Singh (supra) which is heavily relied upon by the learned counsel for the petitioner is distinguished and explained by the Supreme Court in the case of State of Maharashtra v. Mohd. Yakub and Others – AIR 1980 SC 1111. The Supreme Court considered the decision in the case of Malkiat Singh and observed as under :-
“We think that the test propounded by the first sentence should be understood with reference to the facts of the case. The offence alleged to be contemplated was so far removed from completion in that case that the offender had yet ample time and opportunity to change his mind and proceed no further his earlier acts being completely harmless. That was what the Court meant, and the reference to ‘the appellants’ in the sentence where the test is propounded makes it clear that the test is propounded with reference to the particular facts of the case and not as a general rule. Otherwise in every case where an accused is interrupted at the last minute from completing the offence, he may always say that when he was interrupted he was about to change his mind.
Let me now state the result of the search and research : In order to constitute ‘an attempt’ first, there must be an intention to commit a particular offence, second, some act must have been done which could necessary have to be done towards the commission of the offence, and third, such act must be proximate to the intended result. The measure of proximity is not in relation to time and action but in relation to intention. In other words, the act must reveal, with reasonable certainty, in conjunction with other facts and circumstances and not necessarily in isolation an intention, as distinguished from a mere desire or object, to commit the particular offence, though the act by itself may be merely suggestive or indicative of such intention, but that it must be, that is, it must be indicative or suggestive of the intention. For instance, in the instant case, had the truck been stopped and searched at the very commencement of the journey or even at Shirsat Naka, the discovery of silver ingots in the truck might at the worst lead to the inference that the accused had prepared or were preparing for the commission of the offence. It could be said that the accused were transporting or attempting to transport the silver somewhere but it would not necessarily suggest or indicate that the intention was to export silver. The fact that the truck was driven up to a lonely creek from where the silver could be transferred into a sea-faring vessel was suggestive or indicative, though not conclusive, that the accused wanted to export the silver. It might have been open to the accused to plead that the silver was not to be exported but only to be transported in the course of inter-coastal trade. But, the circumstance that all this was done in a clandestine fashion, at dead of night, revealed with reasonable certainty, the intention of the accused that the silver was to be exported”.
18. Further in these type of cases of smuggling of goods the activity is done in a clandestine or stealthy manner. Therefore, it would be difficult or rather impossible to have direct evidence to establish that goods were brought for the purpose of being illegally exported. Still however, when there is no direct evidence, from the circumstantial evidence a reasonable and probable inference can be drawn from the facts which may emerge on the record. If the inference drawn by the competent authority is probable one or if that of a prudent man’s estimate as to the probabilities of the case, this court would have no jurisdiction to interfere with the said findings of fact.
19. Similar type of contention is dealt with by the Supreme Court in the case of Collector of Customs v. D. Bhoormull – A.I.R. 1974 SC 859 = 1983 (13) E.L.T. 1546. In that case while discussing the provisions of Section 167 of the Sea Customs Act, the court also discussed the contention that burden of proof is always on the department and also the jurisdiction of the court under Article 226 of the Constitution of India. The court held that the burden of proving that the goods are smuggled goods, is on the Department. As it is a fundamental rule relating to proof in all criminal proceedings, where there is no statutory provision to the contrary. The court further held that one of the kindred principles is that the prosecution or department is not required to prove its case with mathematical precision to a demonstrable degree, for in all human affairs absolute certainty is a myth. The law does not require the prosecution to prove the impossible. All that it requires is the establishment of such a degree of probability that a prudent man may, on its basis, believe in the existence of the fact in issue. With regard to smuggling the Supreme Court held that smuggling is clandestine conveying of goods to avoid legal duties. Secrecy and stealth being its covering guards, it is impossible for the Preventive Department to unravel every link of the process. Many facts relating to this illicit business remain in the special or peculiar knowledge of the person concerned in it. If he fails to establish or explain those facts, an adverse inference of facts may arise against him. The relevant discussion is as under :
“30. It cannot be disputed that in proceedings for imposing penalties under Clause (8) of Section 167, to which Section 178A does not apply, the burden of proving that the goods are smuggled goods, is on the Department. This is a fundamental rule relating to proof in all criminal or quasi-criminal proceedings, where there is no statutory provision to the contrary. But in appreciating its scope and the nature of the onus cast by it, we must pay due regard to other kindred principles, no less fundamental, on universal application. One of them is that the prosecution or the Department is not required to prove its case with mathematical precision to a demonstrable degree; for, in all human affairs absolute certainty is a myth, and as Prof. Brett felicitously puts it – “all exactness is a fake”. El Dorado of absolute proof being unattainable, the law, accepts for it, probability as a working substitute in this work-a-day world. The law does not require the prosecution to prove the impossible. All that it requires is the establishment of such a degree of probability that a prudent man may, on its basis, believe in the existence of the fact in issue. Thus legal proof is not necessarily perfect proof; often it is nothing more than a prudent man’s estimate as to the probabilities of the case.
31. The other cardinal principle having an important bearing on the incidence of burden of proof is that sufficiency and weight of the evidence is to be considered – to use the words of Lord Mansfield in Elatch v. Archer (1774) 1 Cowp 63 at p. 65 “according to the proof which it was in the power of one side to prove, and in the power of the other to have contradicted”. Since it is exceedingly difficult, if not absolutely impossible for the prosecution to prove facts which are especially within the knowledge of the opponent or the accused, it is not obliged to prove them as part of its primary burden.
32. Smuggling is clandestine conveying of goods to avoid illegal duties. Secrecy and stealth being its covering guards, it is impossible for the Preventive Department to unravel every link of the process. Many facts relating to this illicit business remain in the special or peculiar knowledge of the person concerned in it. On the principle underlying Section 106, Evidence Act, the burden to establish those facts is cast on the person concerned, and if he fails to establish or explain those facts, an adverse inference of facts may arise against him, which coupled with the presumptive evidence adduced by the prosecution or the Department would rebut the initial presumption of innocence in favour of that person and in the result prove him guilty. As pointed out by Best in ‘Law of Evidence’ (12th Edn. Article 320, page 291), the “presumption of innocence is, no doubt presumption juris : but every day’s practice shows that it may be successfully encountered by the presumption of guilt arising from the recent (unexplained) possession of stolen property, “though the latter is only a presumption of fact. Thus the burden on the prosecution or the Department may be considerably lightened even by such presumption of fact arising in their favour. However, this does not mean that the special or peculiar knowledge of the person proceeded against will relieve the prosecution or the Department altogether of the burden of producing some evidence in respect of that fact in issue. It will only alleviate that burden to discharge which very slight evidence may suffice”.
The court further held that so long as the Collector’s appreciation of the circumstantial evidence before him was not illegal, perverse or devoid of common sense or contrary to rules of natural justice there would be no warrant for disturbing his finding under Article 226.
20. In the present case, as stated above applying the aforesaid tests laid down by the Supreme Court, in our view, it cannot be said that from the circumstances which are narrated above, a prudent man may not on its basis, believe in existence of the facts in issue. Broadly the main circumstances are : (1) the conduct of the petitioner of not claiming the possession of the huge quantity of silver for a period of two months; (2) highly improbable story put up by him that he was taking the silver bars to Navsari but because of breakdown of the truck he brought it at village Tukwada; (3) no documentary evidence produced before the authority to show that it was being transported by a truck and that because of breakdown of the truck, the goods were taken to village Tukwada; (4) he brought the silver bars in jeep car instead of taking to Navsari, and (5) no documentary evidence or any bill was produced before the authority that petitioner was lawfully possessing 2770 kgs. of silver bars. The aforesaid circumstances coupled with the statements of Manibhai Desai and Bhagwanji Desai, in our view leaves no doubt for arriving at a conclusion that the silver bars were kept there for being exported, that is a place other than customs station. In any set of circumstances, it cannot be said that the order passed by the Additional Collector is illegal, perverse or devoid of any sense or contrary to rules of natural justice.
21. Considering the entire circumstantial evidence as stated above and statements of the witnesses, in our view, there is no substance in the contention of the learned counsel for the petitioner that the Additional Collector has placed burden upon the petitioner to prove that the goods were not kept at the house of Manibhai Desai of village Tukwada for the purpose of being exported. In our view, the circumstances narrated above, taken together leads to an inference that the petitioner had kept the said goods at the house of Manibhai Desai for the purpose of being exported and the burden of proof loses its importance in these type of cases when entire evidence including circumstantial evidence is taken into consideration by the authority for arriving at a conclusion.
22. The learned counsel for the petitioner lastly submitted that the order passed in appeal by the Central Board of Excise and Customs, is illegal because the Board has taken into consideration the provision of amended Section 11H or 11M by arriving at a conclusion that the petitioner has failed to produce transport vouchers before the authority and therefore it constitute sufficient evidence to transfer onus on the appellant. As such in our view, the onus of proof loses its importance because the Additional Collector has considered all the relevant facts and the circumstances for arriving at a conclusion that the goods were kept by the petitioner at the house of Manibhai Desai for the purpose of being exported. It seems that the word ‘transport voucher’ as used by the appellate authority is not in context of provision of Section 11K of the Customs Act. This aspect is considered by the Additional Collector by stating that the petitioner has failed to produce the actual transport documents in the form of consignment notes etc., under which the silver bars were being transported to Navsari. It cannot be held that appellate authority has misdirected itself merely because instead of using the word transport documents, it has used the word transport vouchers. For transporting the goods in a truck, some transport documents such as receipts or other documents issued by the transport company could have been produced before the authority to establish the case that petitioner was transporting silver bars for legitimate purpose and that there was breakdown of the truck. The appellate authority has taken into consideration the version of Manibhai Desai, Bhagwanji Gulabji Desai and has arrived at a conclusion that the statements of aforesaid two persons leave no doubt about intended unauthorised export of the silver. It has also held that sufficient opportunity of hearing was given to the petitioner and considering the circumstances in which the seizure was effected and the statements recorded, from whose possession the goods were seized, the Additional Collector has correctly arrived at the finding that the goods were meant for unauthorised export. Therefore, it cannot be said that the order passed by the appellate authority calls for any interference.
23. In the result, considering the aforesaid facts the submissions of the learned counsel for the petitioner, in our view, there is no substance in this petition Hence, it is rejected. Rule discharged with no order as to costs.