1. The petitioners have challenged the order passed by the Collector of Customs and Central Excise, Orissa dated 2.9.1980 confiscating silver weighing 370.850 kgs. under section 113(l) read with section 11k and allowing redemption thereof under Section 125 on payment of Rs. 2,00,000 and further confiscating an Ambassador car bearing registration No. 1763 under Section 115(2) and allowing redemption thereof on payment of Rs. 25,000 and still further imposing penalty under Section 114(i) of the Customs Act, 1962 (hereinafter referred to as 'the Act').

2. Facts stated by petitioner No. 1 are that he carried on money lending business independently in his individual capacity with effect from 21.6.1974 and then started business in silver from 13.9.1976. He was assessed with income tax as an individual. He made local purchases of silver in the shape of old silver coins and old silver ornaments from Tarava market. On 26.9.1976 he transported in the Ambassador car bearing registration No. 1763,17 silver bars, 98 silver coins, 4 silver sticks, 2 round shaped silver plates and 9 silver ingots in all weighing 370.850 kgs. for being melted at Bargarh. The driver of the car was petitioner No. 4 who was accompanied by petitioner No. 3. The intention of petitioner No. 1 was to send the silver to M/s. Jalan Co., Calcutta with whom his natural father, petitioner No. 2, a partner of the firm M/s. Nagarmal Chhotelal had business transactions in silver. On the way between Tarava and Bolangir, at about 5.00 a.m. the car was intercepted by the officers of the Central Excise and Customs and silver was seized. Thereafter, a proceeding was initiated for confiscation of silver and the car and notices to show cause were issued by the Collector, Central Excise and Customs, Orissa (opposite party No. 1). After they appeared and showed cause, opposite party No. 1 by order dated 6.4.1978 passed order of confiscation of the silver and the car and imposed penalty. The petitioners filed O.J.C. No. 347 of 1978 and by order dated 18.12.1979, a Bench of this Court allowed the writ petition and directed opposite party No. 1 to redispose of the proceeding in accordance with law and accordingly remanded the case. The proceeding was again taken up by opposite party No. 1 and after hearing the petitioners the impugned order of confiscation and penalty (Annexure 7) was passed by opposite party No. 1 on the specific findings that the petitioners had made preparation for movement of specified goods into a specified area, namely, Bombay.

3. The opposite parties in their counter did not dispute the facts of interception of the car and seizure of the silver and stated that the petitioners had made preparation to smuggle a huge quantity of silver without any authority from Bolangir Railway Station to Bombay and were prevented in time. They denied that the silver was being transported to Bargarh for the purpose of melting, because melting facilities were available at Tarava itself. As there was violation of different provisions of the Act, the order of confiscation and penalty could not be challenged. It was further averred that as alternative remedy was available to the petitioners by way of appeal and reference, the writ petition is not maintalnable.

4. A few provisions of the Act and the notifications issued thereunder are necessary to be quoted to understand the case.

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5. Mr. Ranjit Mahanty, learned counsel appearing for the petitioners, did not dispute that silver is specified goods and Bombay is a specified area within the meaning of definitions contained in Section 11H of the Act. He also did not dispute that petitioner No. 1 was transporting silver in the car on the specific date and the same was intercepted on the way early in the morning and the entire silver was seized by the officers of the Central Excise and Customs. But according to him, silver was not being taken to Bombay and there is absolutely no proof for the same. On the other hand, it was being taken to Bargarh for the purpose of melting. Therefore, the petitioners did not contravene any of the provisions of the Act. Mr. A.B. Misra, learned Standing Counsel for the Central Government, on the other hand, urged that the petitioners were transporting a huge quantity of silver in an unearthly hour making all preparations for concealment because of their intention to transport the same to Bombay. Otherwise, there was no reason why, instead of melting the silver at Tarava itself where melting facilities were available, the goods should have been carried all the way to Bargarh. In any event he challenged the maintainability of the writ petition on the ground of availability of alternative remedy by way of appeal and reference according to the provisions of the Act.

6. We can take judicial notice of the following facts. Tarava is a big and busl-nesswise prosperous village in between the towns of Sonepur and Bolangir in the District of Bolangir. There is a pucca road in between Sonepur and Bolangir. There is a railway station at Bolangir and a person can travel by train from that station to any other parts of India including Bombay. There is also a pucca road from Bolangir to Bargarh and to Sam-balpur in Sambalpur district. A man can approach any part of India if he entrains either at Bargarh or at Sambalpur Railway Stations. If a person travels by car from Tarava en-route to Bargarh he has to pass through Bolangir town by travelling on Bolangir-Sambalpur road.

7. No document or any other important evidence was either procured or seized from the petitioners to conclusively indicate that any one or more of them had intended to board the train at Bolangir Railway Station en route to the specified area, namely, Bombay. No correspondence papers, railway tickets or any other materials were recovered to show that the silver was intended to be moved to the aforesaid specified area. It Is true that the movement of the specified goods had started, but the destination was uncertain and unspecified. It was possible that the driver of the car could have returned to Tarava itself from Bolangir without proceeding any further, could have sold the silver to a dealer at Bolangir itself or as contended by petitioner No. 1, the car with the silver could have headed for Bargarh for the purpose of melting. If the car was heading for the Bolangir Railway Station or was found in Bolangir Railway Station premises and if someone had purchased ticket to proceed to Bombay with the silver or when he was entering inside the train or seated on it with the silver, there could have been a reasonable belief that movement of the specified goods towards the specified area had started and in such an event, the case would have been in the realm of attempt and not preparation. But as already stated above, the car was intercepted in between Tarava and Bolangir, though very early In the morning. The journey could not be said to be suspicious, because people do travel early in the morning and it cannot be construed by itself as an unusual event. In 1981 ELT 217, Ram Kishan Agarwala v. Collector of Central Excise and Customs, Orissa and Ors., a Bench of this Court decided this very case at an earlier stage and observed that onus is on the Department to prove that the specified goods were intended to be transported into a specified area and thus there was violation of the statutory provisions of Section 11K of the Act. In AIR 1970 SC 713, Malkiat Singh and Anr. v. The State of Punjab, a distinction was drawn between preparation and attempt. It was held that a preparation for committing an offence is different from attempt to commit it. The preparation consists in devising or arranging the means or measures necessary for the commission of the offence. On the other hand, an attempt to commit the offence is a direct movement towards the commission after preparations are made. In order that a person may be convicted of an attempt to commit a crime, he must be shown first to have had an intention to commit the offence, and secondly to have done an act which constitutes the actus reus of a criminal attempt. The sufficiency of the actus reus is a question of law which had led to difficulty because of the necessity of distinguishing between acts which are merely preparatory to the commission of a crime, and those which are sufficiently proximate to it to amount to an attempt to commit it. If a man buys a box of matches, he cannot be convicted of attempted arson, however clearly it may be proved that he intended to set fire to a haystack at the time of the purchase. Nor can he be convicted of this offence If he approaches the stack with the matches in his pocket, but if he bends down near the stack and lights a match which he extinguishes on perceiving that he is being watched, he may be guilty of an attempt to burn it. it was further held that the test for determining whether the act of the accused person 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 (1970) 72 Bom. LR 575, Yusuf Abdulla Patel v. R.N. Shukla, it was held that a person commits the offence or attempt to commit a crime when, with the intention of commiting 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 penultimate act towards the commission of crime. Considered in the light of the undisputed facts and the principles of law referred to above, we are unable to agree with the view expressed by opposite party No. 1 that the petitioners were transporting silver, being specified goods, by causing its movement towards Bombay, a specified area without being accompanied by a transport voucher as contemplated in Section 11K. Therefore, movement of the silver did not attract the penal provisions of Sections 113,114,115 and 125 of the Act.

8. With vehemence, Mr. Mishra, learned Standing Counsel, urged that as there was alternative remedy available to the petitioners, they should be directed to approach the appropriate authorities under the Act. It would, however, appear that the case was admitted long back and the impugned order, as has been found above, was based on no evidence. It is also the settled position of law that when the facts are undisputed, a case involves pure interpretation of law, and when it is decided by an authority who acted wholly without jurisdiction, the High Court should not refuse to exercise its jurisdiction under Article 226 of the Constitution of India on the ground of existence of alternative remedy. [See (1987) 65 STC 185, Janajivan Food Private Limited v. Sales Tax Officer, Ganjam-I Circle, and Ors., and 987 (32) E.LT. 8 (S.C.), Dr. Smt. Kuntesh Gupta v. The Management of Hindu Kanya Mahavidyalaya, Sitapur (UP) and Ors.]. In this view of the law, at this distant point of time the writ petition cannot be thrown out, because alternative remedy was available to the petitioners.

9. For the aforesaid reasons, the impugned order passed by the opposite party No. 1 on 2.9.1980 (Annexure 7) cannot be sustained and is accordingly quashed. We make no order as to costs.

D.P. Mohapatra, J

10. I agree.