2015 (10) TMI 2333
X X X X Extracts X X X X
X X X X Extracts X X X X
....llant is carrying Agarwood for export to Bangkok. That Appellant was found to have inter alia 54.50 Kgs. of Agarwood in his baggage along with a Tax Invoice No.278 dated 17.01.2014 of M/s.Assam Perfumery Supply Hojai; a transit pass No.50 (Book No.15024) issued by Range Forest Officer (RFO) Golaghat Range, Forest Department, Assam; Lieu TP No.1984/23 issued by Forest Beat Officer, Kohra Range, Assam; Money Receipt No.23 dt.17.01.2014 issued by RFO, Golaghat Range, Assam and his Indian passport No.G6443506. That the Agarwood was seized by the officers under the reasonable belief that the goods are meant for export to Bangkok. That appellant vide his statement dated 19.01.2014 has explained the licit acquisition of agarwood as per the accompanying documents and also stated that he was carrying the goods to Mumbai for local sales there. That the goods were not meant for taking to Bangkok as he was having no valid visa for Bangkok in his passport. That after detailed investigation, issue of show cause notice and following the principles of natural justice Order-in-Original dt.8.7.2014 was passed against the appellant. 2.1 Learned Consultant of the appellant argued that there is no evi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....or specified goods under the Customs Act, 1962. First appellate authority in para 23, 24 & 25 of the Order-in-Appeal dated 08.12.2014 has only upheld the confiscation on the basis of illegal acquisition of seized goods and has not given any findings as to how seized goods were meant for export. There is no evidence on record that appellant during earlier two visits to Bangkok carried Agarwood though an attempt was made by investigation as per a Mo.17 contained in the statement dated 19.01.2014 of the appellant. There was no valid visa in the passport of the appellant for going to Bangkok. Circumstantial presumptions based on the intelligence of DRI; that on earlier two occasions he has gone to Bangkok and not giving addresses of his earlier buyers of Agarwood in Mumbai; cannot take the place of evidence that appellant on earlier occasions has illegally exported Agarwood to Bangkok. Intelligence/information of the investigation could at best indicate the suspicious activities of the appellant and his intention. This Bench in the case of Md.Liakat Ali v. CC(P) Kolkata, W.B. (supra), relying upon Apex Courts decision in the case of Malkiat Singh v. State of Punjab [(1969) 2 SCR 663], ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....mmit the offence aimed, being reasonably proximate to the consummation of the offence. As pointed out in Abhayanand Mishra v. State of Bihar, (1962) 2 SCR 241, there is a distinction between preparation and attempt. Attempt begins where preparation ends. In sum, a person commits the offence of attempt to commit a particular offence when (i) he intends to commit that particular offence; and (ii) he, having made preparations and with the intention to commit the offence, does an act towards its commission; such an act need not be the penultimate act towards the commission of that offence but must be an act during the course of committing that offence. 4.2 Furthermore, the attempt has to result with either futility or success of the smuggle. This aspect should have been examined on the light of evidence and appreciated by the authorities below and brought out very clearly the charge proving the manner how attempt was made. Three learned judges of the Honble Supreme Court in the case of Malkiat Singh v. State of Punjab [(1969) 2 SCR 663)], dealt with a case where paddy, booked by a firm in Punjab to a consignee to Delhi, was carried in a lorry driven by the first appellant and the lo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f 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 Samalkha Barrier and the Delhi-Punjab boundary and not have proceeded further in their journey. Section 8 of the Essential Commodities Act states 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 S. 7 of the Essential Commodities Act. Pages 666-667 The Hon'ble Supreme Court has categorically held that the attempt should point out to the very act of mischief itself with live link and nexus." 4.3 In Asgarali Pradhantha v. Emperor [(1934) ILR 61 Cal. 54], a Bench of the High Court at Calcutta, consisting of Lord-Williams and Mcnair, JJ., chose to sum up the law in India on the aspect of 'attempt' in th....