1. This is a petition under Article 226 of the Constitution for the issue of a writ of certiorari quashing and setting aside an order passed by respondent No. 1 on June 29, 1958 confiscating 75 bars of silver of the value of nearly Rs. 12 lakhs belonging to the petitioner and lying at the godown of a transport company named M/s Reliable Roadways in Bombay under Section 118 (d) of the Customs Act, 1962, and imposing a personal penalty of rupees twenty lakhs on the petitioner under Section 114 of the said Act, and for a writ of mandamus against the respondents directing them to withdraw, cancel or set aside the said order dated June 29, 1968 and to forbear from enforcing the same.
2. The facts of the case are that, in consequence of information received by them, the customs authorities seized on December 28, 1967, 120 bars of silver from a motor lorry bearing No. MRS 5188 at a place near Bassein which, according to them, had earlier been seen being loaded in the said lorry from the godown of the said M/s Reliable Roadways. On the next day, i.e. on December 29, 1967, the customs authorities, therefore, raided the godown of M/s Reliable Roadways in Bombay and seized the 75 bars of silver which are the subject-matter of the present proceedings. It may be mentioned that the Court is not concerned, in these proceedings, with the 120 bars of silver which had been seized on December 28, 1967. The said M/s Reliable Roadways having furnished the name of the petitioner as the owner of the said 75 bars of silver, and having produced the bills in respect of the same which were seized from them by the customs authorities, a show cause notice dated April 11,1968 was served by the customs authorities on the petitioner as well as on the said M/s Reliable Roadways, its partners and its accountant. In the said show cause notice it was alleged that the said 75 bars of silver were intended to be illegally exported out of India. After the seizure of the 75 bars of silver, the customs authorities recorded the statement of the petitioner under Section 118 of the Customs Act, 1962, as well as the statements of several other persons, from which it appeared that the said 75 bars of silver had been purchased by the petitioner on or about December 25, 1967 from the firm of M/s. J. Pitambardas in Bombay. It further appeared that the said bars had then been brought to the godown of the petitioner, and from there, they were sent by the petitioner on December 28, 1967 to the godown of the said M/s Reliable Roadways at Nagdevi Cross Lane in Bombay, who were transport contractors and who were requested to store the said silver bars pending further instructions from the petitioner. It is the case of the petitioner in para. 2 of the petition that he wanted to dispose of the said 75 silver bars either at Bombay or at any upcountry town where he could get a better price for them. It may, at this stage, be stated that it is not disputed by the petitioner, who is a dealer in yarn, that it was not a part of his business to deal in silver and that the only occasion on which he had dealt in silver previously was a day or two prior to the purchase of the said 75 bars by him. Correspondence took place between the petitioner and the customs authorities between April 24, 1968 and June 24, 1968 to which it is unnecessary to refer. On June 25, 1968, a personal hearing was given to the petitioner by respondent No. 1 at which, as stated in para. 7 of the petition, the petitioner's advocate requested respondent No. l that the case relating to the seizure of the 120 bars of silver should be separated from the case relating to the seizure of the said 75 bars of silver. It is stated in para. 9 of the affidavit in reply filed on this petition that that request was granted by respondent No, 1 and the two cases were thereafter separated. It may, however, be mentioned that in the case relating to the said 120 bars, respondent No. l ultimately held that there was no evidence to connect the petitioner with them. Further correspondence took place between the petitioner and the customs authorities to which also it is unnecessary to refer, the purport of the same being set out in para. 9 of the petition. A further hearing was granted to the petitioner by respondent No. 1 on June 29, 1968 on which date respondent No. 1, after hearing the parties, made the impugned order of confiscation and personal penalty which has already been set out above.
3. It may be convenient, at this stage, to refer to the relevant sections of the Customs Act, 1962. Section 2(18) of the said Act defines the term 'export' as meaning 'taking out of India to a place outside India', and Section 2(19) defines 'export goods' as meaning any goods which are intended to be taken out of India to a place outside India. The relevant portion of Section 113 of the said Act is in the following terms ;
113. The following export goods shall be liable to confiscation :-
(d) any goods attempted to be exported or brought within the limits of any customs area for the purpose of being exported, contrary to any prohibition imposed by or under this Act or any other law for the time being in force.
There are several other clauses in Section 113 which follow the clause quoted above, but it is not necessary to refer to them for the purpose of the present case. It may be mentioned that Section 11 of the said Act empowers the Central Government to prohibit, either absolutely or subject to such conditions as may be specified in the notification, inter alia the export of goods of any specified description. It may also be mentioned that Section 114 of the said Act lays down that any person who does any act in relation, to any goods which renders such goods liable to confiscation under Section 113, shall be liable to the personal penalties therein provided. Section 2 of the Imports and Exports (Control) Act, 1947, defines the term 'export' as meaning 'taking out of India by sea, land or air', and Sub-section (1) of Section 3 of that Act empowers the Central Government by order published in the Official Gazette to prohibit, restrict or otherwise control, inter alia, the export of goods of any specified description. Clause 3 of the Exports (Control) Order, 1968, issued, pursuant to the powers conferred by the said Section 3, provides that no person can export any goods of the description specified in Schedule I to that Order, Item 2 of which mentions 'silver', except in accordance with a licence granted by the Central Government, or by an officer specified in Schedule II to the said Order. Sub-section (2) of Section 3 of the Imports and Exports (Control) Act, 1947, enacts that all goods to which any order under Sub-section (1) of the said section applies are to be deemed to be goods of which the import or export has been prohibited or restricted under Section 11 of the Act, 1962, and all the provisions of that Act would have effect accordingly. The result of these statutory provisions, read together, is that attempting to export silver would be an offence punishable by confiscation under Section 118(d) and liable to a personal penalty under Section 114 of the Sea Customs Act, 1962, and indeed, that position is not disputed by either side.
4. Mr. Sorabjee for the petitioner has formulated the petitioner's challenge to the impugned order of respondent No. 1 dated June 29, 1968 in the form of three propositions which are as follows :
I. In law, there has been no 'attempt' to export the goods, and in so far as respondent No. 1 has held that there was an attempt to export the 75 bars of silver, there is an error of law apparent on the face of the record ;
II. There has been a violation of the principles of natural justice in so far as it is settled law that proceedings before customs authorities relating to confiscation and penalty are quasi-judicial proceedings, and the party concerned has a right of cross-examination of the witnesses examined in the course of those proceedings;
III. There is no evidence at all in support of the conclusion that there has been an attempt to export the 75 bars of silver, and the finding of respondent No. 1 to that effect is based on surmise, suspicion and guess-work.
As the facts necessary for the purpose of the decision of this case are not in dispute, but what is in dispute is the conclusion drawn from them by respondent No. 1, Mr. Sorabjee, very fairly, did not press the second of the above three grounds. Mr. Sorabjee also conceded that the third ground formulated by him as stated above is not an independent ground, but is really a part of the first ground, and the question that arises for my determination, therefore, is really only that which is embodied in the first ground. To put that question in the language of the law as laid down by the Supreme Court in various decisions, is the conclusion at which respondent No. 1 has arrived, viz. that there was an attempt to export the said 75 bars of silver by the petitioner, so manifestly erroneous that no reasonable person or reasonable judicial mind or legal mind could possibly have come to the conclusion to which respondent No. 1 came 1 It is also well-settled that, if the error of law complained of is an error of that nature and is apparent on the face of the record, the Court can interfere with the decision of the tribunal concerned, in the exercise of its supervisory jurisdiction under Article 226 of the Constitution. These propositions are too well-established by now to need authority.
Before I proceed to deal with the question as to whether the conclusion at which respondent No. l arrived, viz., that the petitioner had attempted to export the said 75 bars of silver, is one at which no reasonable person could possibly arrive, it will be necessary for me to consider what is the legal connotation of the term 'attempt' in regard to which there has been serious controversy before me between the parties to the present petition. It may be mentioned that the expression 'attempt' or 'attempted to be exported' has not been defined in the Customs Act, 1962, itself. In so far as proceedings for confiscation are proceedings of a penal nature, it would not be inappropriate to draw on the meaning of the word 'attempt' as interpreted by judicial decisions under the Indian Penal Code. Section 511 of that Code enacts that an attempt to commit an offence punishable by the said Code with imprisonment, or to cause such an offence to be committed, is punishable in the manner laid down therein. Curiously enough, however, the Indian Penal Code also does not give a statutory definition of the term 'attempt' which, therefore, has been the subject of interpretation in a large number of decisions of various Courts. There is, however, one classic definition of the term 'attempt' which was given by Sir Lawrence Jenkins in his charge to the jury in the case of Queen-Empress v. Luxman (1890) 2 Bom. L.R. 286 which has stood the test of time and which, in my opinion, brings out the real meaning of that term. In summing up a sessions case to the jury, Sir Lawrence Jenkins stated as follows (p. 296) :.Now, gentlemen, I come to the question of what constitutes an attempt, as it will be for you to say whether in this case there has been an attempt or not. An attempt is an intentional preparatory action which fails in object-which so fails through circumstances independent of the person who seeks its accomplishment. It is, therefore, obvious that you must determine what was the accused's intention.
Mr. Sorabjee has, in the course of his arguments before me, relied upon an un-reported decision of the Supreme Court in Malhiat Singh v. The State of Punjab 2 (1968) Criminal Appeal No. 186 of 1966, from Punjab, decided on November 8, 1968 (Supreme Court) in which the offence charged was of attempting to export paddy outside the State of Punjab in contravention of an order promulgated by the Central Government under Section 8 of the Essential Commodities Act, 1955. The truck carrying the offending goods was actually stopped and seized before it crossed the border between Punjab and Delhi, and it was sought to be contended on behalf of the State of Punjab that there was an attempt on the part of the appellant to transport paddy to Delhi and, therefore, there was an attempt to commit the offence of export of the goods in question, Ramaswami J., delivering the judgment of the Supreme Court, stated that there was no substance in that argument, and that what had happened was merely a preparation to commit the offence in question. He then stated in the judgment that preparation consisted of devising or arranging the means or measures necessary for the commission of the offence, whereas an attempt to commit the offence was a direct movement towards the commission after preparations were made, and the acts done by the accused must be sufficiently proximate to the crime to amount to an attempt to commit it. Ramaswami J. then quoted, with approval, a passage from Sir James Stephen's Digest of Criminal Law (Art. 50) in which it is stated that an act done with intent to commit that crime, and forming part of a series of acts which would constitute its actual commission 'if it were not interrupted' is an attempt to commit that offence. It is further stated by Sir James Stephen in the said Article that the point at which such a series of acts begins cannot be defined, but depends upon the circumstances of each particular case. In my opinion, the judgment of Ramaswami J., read as a whole, in which, as already stated above, the definition of the word 'attempt' given by Sir James Stephen is quoted with approval and adopted, lays down nothing different from the classic definition of that term given by Sir Lawrence Jenkins in the ancient case of Queen-Empress v. Lumman cited above. Mr. Bhabha has, however, relied strongly upon another decision of the Supreme Court which, according to him, lays down a different definition of the expression 'attempt' from that which was laid down by Ramaswami J. in the unreported decision which has just been discussed by me, and that is the decision in the case of Abhayanand v. State of Bihar : 1961CriLJ822 in which the facts were that the appellant applied to the Patna University for permission to appear at the M.A. Examination as a private candidate representing that he was a graduate and. that he had the necessary teaching experience, and in support of that application, he attached certain certificates. After he had complied with certain other formalities, the University authorities despatched the admission-card which would entitle him to appear at the said Examination, to the head-master of the school concerned. On further inquiry, however, the University authorities found the certificates to be false, as a result of which the admission-card was withheld and the appellant was prosecuted under Section 420 read with Section 511 of the Indian Penal Code. The appellant was convicted by the trial Court, and his appeal to the High Court from that conviction was dismissed. The Supreme Court confirmed that conviction and dismissed his appeal from that order, holding that the appellant was guilty of the offence of attempting to cheat the University. One of the contentions raised before the Supreme Court was that the facts proved did not go beyond the stage of preparation and did not make out the offence of attempting to cheat the University, but amounted merely to the accused making preparations to cheat the University. In regard to that, the Supreme Court observed (para. 12) that the question whether a certain act amounts to an attempt to commit a particular offence is a question of fact dependent on the nature of the offence and the steps necessary to take in order to commit it, and that no exhaustive precise definition of what would amount to an attempt to commit an offence was possible. After quoting with approval the decision and the reasons given for it by the learned Judges constituting the Division Bench of the Allahabad High Court in the case reported in In the matter of the petition of R. MacCrea I.L.R. (1893) All. 173 Raghubar Dayal J. formulated the views of the Supreme Court on the point (para. 26) in the following terms :
(26). We may summarise our views about the construction of Section 511, I.P.C. thus : 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.
In the case reported in In the matter of the petition of R. MacCrea, Knox J., who was one of the members of the Division Bench, observed (at pp. 179-180) that the first act after preparations are complete would, if criminal in itself, be equally an attempt with the ninety-ninth act in that series of acts, and that an attempt once begun, and a criminal act done in pursuance of it towards the commission of the act attempted, does not cease to be a criminal attempt because the person committing the offence does or may 'repent' and 'abstains from completing the attempt'. Relying on those observations, and on the approval of the decision and the reasons given for it by the learned Judges in the said case, by the Supreme Court in Abhyanand's case, Mr. Bhabha sought to contend, (1) that an act would be an attempt even though the completion of the crime could have been prevented by the voluntary act of the accused himself; and (2) that the act which constitutes the attempt need not be the penultimate act towards the commission of that offence. Whilst there can be no doubt that the Supreme Court has, in terms, held in Abhyanand's case that the act which constitutes the attempt need not be the penultimate act towards the commission of the offence itself, the evidence in the case must show unequivocally that that act was such as to amount to 'a direct movement towards the commission of the offence' in question, as stated by Ramaswami J. in his judgment in the case of Malhiat Singh v. The State of Punjab cited above; or 'an act towards its commission,' as stated by Raghubar Dayal J. in Abhayanand's case also cited above. Proximity to the crime to which Ramaswami J. refers in the former case would be one of the facts which would show that the act in question was directed towards the commission of the crime. I do not, however, accept Mr. Bhabba's contention that the act of a person would be an attempt even though the completion of the offence could have been prevented by the voluntary act of that person himself. That is not what the Supreme Court has said in the final formulation of its views in para. 26 of the judgment in Abhayanand's case quoted above. Mr. Bhabha sought to make good this point by reference to the observations of Knox J., in In the matter of the petition of B. MacCrea at pp. 179-180 referred to above, but merely because the Supreme Court has in Abhayanand's case approved of the decision and the reasons given for it by the learned Judges in that case, I am not prepared to take the view that the decision in Abhyanand's case must be read as if every single word or observation in the judgments in the Allahabad case had been incorporated therein. In my opinion, the formulation of the definition of the term 'attempt' by Raghubar Dayal J. in para. 26 of his judgment in Abhayanand's case does not lay down anything different from the classic definition of Sir Lawrence Jenkins in the case of Queen-Empress v. Luxman, or of Sir James Stephen which was adopted by the Supreme Court in the case of Malhiat Singh v. The State of Punjab, to both of which I have already referred. The result of the authorities discussed above is that an accused person commits the offence of 'attempt' to commit a crime when, with the intention of committing that crime, he does an act or acts which constitute a direct movement towards its commission but the actual commission of the crime is frustrated by reason of the fact that it is interrupted by circumstances independent of his volition. Such act need not, however, be the penultimate act towards the commission of the crime.
5. I must now proceed to consider the facts of the present case in the light of the legal position stated above. The first question that arises is, what are the facts which have been admitted or proved in the present case. In my opinion they are as follows :
(1) that the petitioner was a yarn merchant and a commission agent, and was not a dealer in silver ;
(2) that it was only on December 24, 1967, which would be just a day prior to the purchase of the 75 bars in question by him, that the petitioner had purchased 2 or 3 bars of silver for the first time and had sold them in the market;
(3) that the said 75 bars of silver were purchased by him from M/s. J. Pitambardas in Bombay on December 25, 1967 ;
(4) that the petitioner has not been able to produce any entry in his books in regard to the purchase from M/s. J. Pitambardas & Co. ;
(5) that the petitioner has not been able to account satisfactorily for the moneys from which he effected the said purchase ;
(6) that after removing the said 75 bars of silver in the first instance to his own godown, the petitioner sent the said 75 bars on December 28,1967 to M/s. Reliable Roadways, which was a transport concern, for storage, pending further instructions;
(7) that the petitioner had not obtained any receipt or voucher in respect of the said 75 bars of silver from M/s. Reliable Roadways ;
(8) that the said M/s. Reliable Roadways had not made any entry in their own books in regard to the said 75 bars of silver, or the intended transport thereof; and
(9) that the said 75 bars of silver were seized from the godown of M/s. Reliable Roadways by the customs authorities on December 29, 1967 when the place was raided by them, and the said M/s. Reliable Roadways thereafter furnished to the customs authorities the name of the petitioner, and produced the bills of M/s. J. Pitambardas in respect of the said 75 bars of silver, which bills were made out in the name of the petitioner without mentioning his address or whereabouts.
6. In para. 5 of the affidavit filed in reply to the present petition, respondent No. 1 has stated that the petitioner had at no time given any relevant bona fide reason as to why he caused the said 75 silver bars to be shifted from his godown to the godown of M/s. Reliable Roadways, and later on in the same paragraph, he has stated as follows :
This modus operandi clearly shews the petitioner's attempt to export the silver bars on 28-12-1967 ot thereabouts by delivering the silver bars to the Transport Company without receipts, without indicating destination and without buyer. This was done in order to avoid proof of documentary evidence with regard to the said removal and to enable the transfer of the silver bars out of India.
The question which arises for my consideration is whether, on the facts admitted or proved which have been enumerated in the preceding paragraph, it is possible for any reasonable person to come to the conclusion to which respondent No. 1 has come, the basis on which he arrived at that conclusion having been explained by respondent No. 1 himself in para. 5 of his affidavit in reply. In my opinion, the facts enumerated in the preceding paragraph, whilst they may show that the petitioner intended to deal in some improper manner with the said 75 bars of silver, are perfectly consistent with such improper dealing being within the country, and there was no evidence at all before respondent No. 1 to show that the petitioner's acts amounted to a direct movement towards the commission of the offence in question, viz., that of exporting the said 75 bars out of the country. It was, therefore, not possible for any reasonable person to come to the conclusion, on those facts, that the said 75 bars of silver were attempted to be exported by the petitioner out of the country, Realising this position, Mr. Bhabha for the respondents tried to base his argument on an inference of secret instructions for export having been given by the petitioner to M/s, Reliable Roadways, and in that connection, he relied on a passage in the impugned order of respondent No. 1 in which it is stated as follows :
I am also convinced that this preparation had already reached a stage where all that was required to be done was for his agents viz. Reliable Roadways, to engage a suitable vehicle at a suitable time, and to despatch the said silver to a pre-determined place for illicit export. The preparation having reached that stage, in my opinion, amounted to a clear attempt to export.
Mr. Bhabha has argued that the word 'pre-determined' used in this passage in the impugned order shows that respondent No. 1 had, as the ultimate fact-finding authority, come to the conclusion that there had been some instructions given by the petitioner to M/s. Reliable Roadways in regard to the destination of the said goods. In my opinion, however, the word 'pre-determined,' in the context in which it is used in the said passage, only means 'pre-determined by the petitioner in his own mind' and that position is made clear by the clarification which respondent No. 1 himself has given of his order in para. 5 of the affidavit in reply to which I have already referred above. He has stated in the said paragraph that his conclusion is drawn, inter alia, from the fact that the said 75 silver bars had been delivered by the petitioner to the transport company 'without indicating destination.' Indeed, in view of that position taken up by respondent No. 1 in the affidavit in reply, it is not really open to Mr. Bhabha to make out for him the defence that he had based his decision on a ground which is exactly contrary to one of the grounds on which he has himself stated his decision to have been based. Moreover, having regard to the facts enumerated in the preceding paragraph, it is not unlikely that the petitioner had not given any instructions to M/s. Reliable Roadways in regard to the destination of the goods, either because it would not be safe for him to let them know his plans in advance for fear of those plans leaking out, or because the petitioner himself may not yet have decided where and how he would dispose of the said 75 bars of silver. I have, therefore, come to the conclusion that, on the facts admitted or proved in the present case, it is impossible to come to the conclusion that there had been any attempt to export as understood in law.
7. In the course of his arguments in the present case, Mr. Bhabha, however developed a new line which, frankly speaking, I find somewhat difficult to understand, or even to reproduce. His argument was that (1) export is a process ; (2) an 'attempt to export' is made when a person does any act in that process with the intention of attempting to export, an argument which, with respect to the learned Counsel, amounts to what is called 'begging the question'; and (8) as soon as any such act is proved, on the principle underlying Section 106 of the Evidence Act, the onus shifts to the accused person to give a satisfactory explanation for that act, which he has not done and respondent No. 1 was, therefore, justified in arriving at the conclusion to which he came. Applying that argument to the facts of this case, Mr. Bhabha contended that the attempt in the present case commenced at the point of time when the petitioner shifted the said 75 bars of silver which fell within the definition of 'export goods' in Section 2(19) of the Customs Act, 1962, to the godown of M/s. Reliable Roadways. He has contended that at that stage the goods were ready-packed for the purpose of export and in the process of export, and the finding of the Officer disbelieving the explanation offered by the petitioner was enough to shift the burden of proof on the petitioner on the principle of Section 106 of the Evidence Act. I am afraid, I cannot accept any of these steps in Mr. Bhabha's argument as laying down the correct position in law. His basic argument that export is not the mere act of taking goods out of the country, but is a process, is based on the analogy of the decision of the Supreme Court in the case of Abdul Aziz v. State (1968) 65 Bom. L.R. 699. in which, according to Mr. Bhabha, it was laid down that the connotation of the word 'import' was not the mere act of bringing goods into the country, but extended to the subsequent dealing with the goods after they were brought into the country. I am afraid, the decision in Abdul Aziz's case cannot be construed in the wide sense in which Mr. Bhabha has asked me to interpret the same. The question in that case was a totally different question, viz., whether the power conferred under Section 3(1) of the Imports and Exports (Control) Act, 1947, was not restricted merely to prohibit or restrict imports at the point of entry, but extended to controlling the subsequent disposal of the goods imported, and whether the provision in Clause 5 of the Imports (Control) Order, 1955, issued thereunder empowering the licensing authority to attach a condition to the effect that the goods covered by the licence were not to be disposed of except in the manner provided by the licensing authority was a valid provision which came within the powers conferred by Section 8 of the said Act on the Central Government. The question was whether the provisions of cl, 5 of the Imports (Control) Order, 1955, were ultra vires Section 8(1) of the Imports and Exports (Control) Act, 1947, and the Supreme Court was not concerned in that case and, in fact, has not purported to give a general definition of the term 'import', as Mr. Bhabha has sought to contend. What the Supreme Court was concerned with in that case was the ambit of the power conferred by Section 8(1) of the said Act, and not with the definition of the term 'import' as such. The basic contention of Mr. Bhabha that export is a process, and not the mere act of taking out of the country, based on the decision of the Supreme Court in Abdul Aziz's case must, therefore, be rejected. Such a construction would be contrary to the plain language of the definition of the term 'export' in Section 2(18) of the Customs Act, 1962, Apart from that, Mr. Sorabjee has cited a decision of the Supreme Court in the case of B. K. Wadeyar v. Daulatram Rameshwarlal : 1SCR924 which arose out of a petition under Article 226 of the Constitution for quashing the assessment order and notice of demand issued by the Sales-tax Officer which were impugned in that case, the question being whether the sales had taken place 'in the course of export' out of the territory of India so as to be exempt from the sales-tax. Referring to the definition of the term 'export' in Imports and Exports (Control) Act, 1947, the Supreme Court laid down (para. 8), 'Consequently the time of the export is when the ship with the goods goes beyond the territorial limits. At any rate, the export of the goods cannot be considered to have commenced before the ship carrying goods leaves the port,' Mr. Sorabjee has contended that the said decision, therefore, lays down clearly that the term 'export' connotes the actual taking out of the goods in question beyond the territorial limits of India. In my opinion, there can be no doubt about that position, having regard to the decision of the Supreme Court in Wadeyar's case as well as Section 2(18) of the Customs Act, 1962, Mr. Bhabha's further argument relating to the shifting of onus on to the petitioner, once his explanation in regard to the intention to sell the goods within India was disbelieved, which he stated was based on the principle of Section 106 of the Evidence Act, is somewhat strange and totally unacceptable to me. He sought to base that limb of his argument on a decision of the Supreme Court in the case of Krishan Kumar v. Union of India  S.C.J. 1 and on the decision of the Calcutta High Court in the case of Shermal v. C. E. & L. C. Collector : AIR1956Cal621 , but I am afraid, neither of those cases has any relevance on the question which I am now considering. It must not be forgotten that proceedings of the nature in question in the present case are penal in nature (Ambalal v. Union of India A.I.R. S.C. 264) and are quasi-criminal (Shanti Prasad v. Director of Enforcement : 2SCR297 ) and, as laid down in the latter of those two cases which was a case of breach of the Foreign Exchange Regulations Act, it is the duty of the prosecutor in such a case to make out 'beyond all reasonable doubt' that there has been a violation of the law. As far as the general burden of proof of guilt which lies on the prosecution or an authority in the position of the prosecution is concerned, the same never shifts and the prosecuting authorities are not entitled to rely upon Section 106 of the Evidence Act except in very exceptional cases and to a very limited extent. Moreover, if the facts admitted or proved in the present case cannot possibly amount to an attempt to export, no question of invoking the principle in Section 106, or of shifting of the onus of proof, or of the petitioner's failure to afford a satisfactory explanation, arises at all. In support of that contention Mr. Sorabjee has relied upon an un-reported decision of a Division Bench of this Court (C. T. A. Pillai v. Fidahussein Ghadially (1960) O.C.J. Appeal No. 66 of 1959, decided by Mudholkar and Shah JJ., on August 25, 1960 (Unrep.)) in which, inspite of the several circumstances listed in the judgment of the Division Bench, viz. that the respondent had made inconsistent statements, that he had not maintained proper accounts, that he was not able to produce purchase vouchers, that a large majority of the watches seized were brand new and the respondent was not able to account satisfactorily for being in possession of them, and a total ban on the import of watches which was in force at that time, the Court came to the conclusion that none of those circumstances pointed indubitably to the inference that the watches in question had been smuggled into India and that there was no prima facie evidence before the Customs Collector on the basis of which he could make the impugned order. Mr. Sorabjee relied upon a recent decision of the Calcutta High Court in the case of Manicklal v. Addl. Collector of Customs : AIR1965Cal527 which was a case under the Sea Customs Act, 1878, in which Sinha J., in quashing the impugned order, observed that confiscatory proceedings under the Sea Customs Act were of a penal nature and were in the nature of criminal proceedings, that the rule relating to all criminal proceedings was that a criminal charge had to be established by the prosecution to the hilt and the burden of proof was never on the accused, and that that fundamental principle of burden of proof could only be varied by a statutory enactment. As Section 178A of the said Act was not applicable to the said case, the fact that the bills were not produced, or that the petitioner had failed to satisfactorily account for the acquisition, could not; raise any presumption against him. I agree with the observation of Sinha J. in the said case. In the result, I have come to the conclusion that there was no evidence at all before respondent No. 1 on which any reasonable person could have come to the conclusion that the petitioner had attempted to export the said 75 bars of silver, and the impugned order, therefore, suffers from an error of law apparent on the face of the record and must be quashed and set aside.
8. Curiously enough, at the end of his argument Mr. Bhabha raised what was really a preliminary objection in regard to the maintainability of the petition, and that was, that the petitioner had remedies by way of appeal as well as revision under the Customs Act, 1962, available to him, which remedies he had not exhausted and he was, therefore, not entitled to maintain this petition, and no order should be made on this petition in his favour. Mr. Bhabha, however, frankly conceded that the position as it obtains under the decisions of the Supreme Court (U.P. State v. Mohd. Nooh A.I.R.  S.C. 86, British I.S.N. Co. v. Jasjit Singh : AIR1964SC1451 , and the unreported decision of the Supreme Court Union of India v. Hariram Shamji Thakkar (1968) Civil Appeal No. 794 of 1967 decided by the Supreme Court on February 5, 1968 (Unrep.)) is that the rule of exhaustion of remedies does not bar the jurisdiction of the Court to grant relief under Article 226, but is a rule which Courts have laid down for the exercise of their discretion. That being the position, the question is whether I should, in the exercise of my discretion, decline to grant relief on this petition because the petitioner has not exhausted the alternative remedies to which Mr. Bhabha has referred. First and foremost, it must be stated that an objection of this nature should have been raised by Mr. Bhabha, if not at the time of the admission of the petition as stated in some of the judicial decisions on the point, at any rate, at the beginning of the hearing before me. I do not, however, propose to reject the said contention of Mr. Bhabha on that technical ground. As Mr. Sorabjee has pointed out, the alternative remedies of the petitioner under the Customs Act to which Mr. Bhabha has referred are all of an onerous nature and, at any rate, cannot be said to be equally efficacious remedies. The remedy by way of an appeal under Section 129 is already barred by now. Moreover, a person desiring to file an appeal under that section would have to deposit the penalty. Under the proviso to Sub-section (1) of that section, a discretion has no doubt been conferred upon the appellate authority to dispense with such deposit, but that is not a matter of right on the part of the person concerned. As far as the revisional powers under Section 130 are concerned, though the same are not barred, interference in the exercise of those revisional powers is of a discretionary nature and not a matter of right on the part of the petitioner. Remedies which are discretionary and which cannot be claimed by the petitioner as of right, can certainly not be said to be equally efficacious remedies and, in the exercise of my discretion I, therefore, do not decline to grant relief to the petitioner on the ground that he has not availed himself of those alternative remedies. This position is clear from the authorities cited on the point by Mr. Sorabjee which, it is unnecessary to discuss. I may merely refer to them. They are as follows :-M. Basha v. C. Sultan Being A.I.R. Mys. 17; Abdul Shakoor v. B.C. & E. Officer : AIR1959All440 ; Biharilal v. B.T.A., Bewa : AIR1965MP132 and Elbridge Watson v. B. K. Das : 19ITR538(Cal) . Suffice it to say, that I agree with the view expressed on this point in the said decisions.
9. In the result, I make the rule absolute in terms of prayer (a) of the petition. I also order that the respondents do forbear from enforcing and/or taking any steps and proceeding for enforcement and/or implementation of the said impugned order dated June 29, 1968.
10. Mr. Sorabjee has also applied for an order for the return of the said 75 bars of silver, and has contended that though there is no specific prayer in regard to the same, the Court should make that order under the prayer (f) of the petition which relates to 'further and other reliefs'. Mr. Taraporwalla on behalf of the respondents does not object to the order being made by me, although the same has not been specifically prayed for by the petitioner, but he desires to make it clear that he does not consent to the making of the order as such. I accordingly issue a writ, direction and order under Article 226 against the respondents directing them to return the said 75 bars of silver which are the subject-matter of this petition. Mr. Sorabjee on behalf of the petitioner agrees that his client will not call upon the respondents to return the said 75 silver bars which are the subject-matter of this petition to them for a period of eight weeks from the date on which an ordinary copy of this judgment is delivered to the respondents. The respondents must pay the petitioner's costs which I quantify at Its. 1,000.