State of Maharashtra Vs. Mohd. Yakub
S/O Abdul Hamid & Ors [1980] INSC 40 (4 March 1980)
SARKARIA, RANJIT SINGH SARKARIA, RANJIT SINGH
REDDY, O. CHINNAPPA (J)
CITATION: 1980 AIR 1111 1980 SCR (2)1158 1980
SCC (3) 57
ACT:
Penal Code-Attempt to commit an offence-What
constitutes-"Preparation" and "attempt" distinction.
HEADNOTE:
The respondents were charged with the offence
of attempting to smuggle out of India 43 silver ingots in violation of the
Foreign Exchange Regulation Act, 1947, Imports and Exports (Control) Act, 1947
and the Customs Act, 1962.
The prosecution alleged that on the night of
the occurrence the respondents carried in a truck and a jeep silver ingots some
of which were concealed in a shawl, and some others hidden in saw-dust bags
from Bombay to a lonely creek nearby and that when the ingots were unloaded
near the creek the sound of the engine of a mechanised sea-craft from the side
of the creek was heard by the Customs officials and that therefore they were
guilty of attempting to smuggle silver out of India.
The respondents pleaded that they were not
aware of the presence of silver ingots in the vehicles, that they were only
employed for driving the jeep and the truck to another destination and that the
police stopped them en route and had driven them to the creek.
The Trial Court convicted and sentenced them
to various terms of imprisonment and fine.
On appeal, the Sessions Judge acquitted all
the respondents taking the view that the facts proved showed no more than that
the accused had only made "preparations" for bringing the silver to
the creek and "had not committed any act amounting to a direct movement
towards the commission of the offence" and that until the silver was put
in the boat with intent to export, it would merely be in the stage of
preparation falling short of an "attempt" to export in contravention
of the law.
The High Court dismissed the State's appeal.
Allowing the appeal to this Court, ^ HELD: Per Sarkaria, J.: (Chinnappa Reddy,
J.
concurring)
1. The High Court was in error in holding
that the circumstances established by the prosecution fell short of
constituting the offence of an "attempt" to export unlawfully silver
out of India. [1165F]
2. The expression "attempt" within
the meaning of the penal provisions is wide enough to take in its fold any one
or series of acts committed beyond the stage of preparation in moving contraband
goods deliberately to the place of embarkation, such act or acts being
reasonably proximate to the completion of the unlawful export. [1165E].
3. The definition of 'proved' contained in
section 3 of the Evidence Act does not draw any distinction between
circumstantial and other evidence. If the circumstances establish such a high
degree of probability that a prudent man ought to act on the supposition that
the accused was attempting to export silver from India in contravention of the
law, that would be sufficient proof of that fact in issue. [116A-B] 4(a) What
constitutes an "attempt" is a mixed question of law and fact,
depending largely on the circumstances of the particular case.
"Attempt" defies a precise and exact definition. Brodly speaking, all
crimes which consist of the commission of affirmative acts are preceded by some
covert or overt conduct which may be divided into three stages: the first stage
exists when the culprit first entertains the idea or intention to commit an
offence; in the second stage he makes preparations to commit it; and the third
stage is reached when the culprit takes deliberate overt steps to commit the
offence. Such overt act or step, in order to be criminal, need not be the
penultimate act towards the commission of the offence. It is sufficient if such
act or acts were deliberately done and manifest a clear intention to commit the
offence aimed, being reasonably proximate to the consummation of the offence.
[1164C-E] Abhayanand Mishra v. State of Bihar, [1962] 2 S.C.R. 241, followed.
(b) 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.
[1164E-F] In the instant case the respondents
carried silver ingots in the two vehicles to the sea-shore and started
unloading them near a creek from which the sound of the engine of a sea-craft
was heard. In short they did all that was necessary to export the silver ingots
by sea and the only step that remained was to load them on the sea-craft for
moving out of the territorial waters of the country. But for the intervention
of the Customs officials, the unlawful export would have been consummated. The
disappearance of the sea-craft reinforces the inference that the accused had
deliberately attempted to export silver by sea in contravention of law.
[1164G-H] Chinnappa Reddy, J (concurring).
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 would necessarily 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.
[1170E-F] In the instant case had the truck
been stopped and searched at the very commencement of the journey or even on the
way much before its destination the discovery of silver ingots in the truck
might at the worst lead to the inference 1160 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. [1170G-H] Reg
v. Eagleton [1854] Dears C.C. 515; Gardner v. Akeroyd [1953] 2 All ER 306;
Davey v. Lee [1968] 1 Q.B. 366;
Haughten v. Smith [1975] A.C. 476, 492;
Director of Public Prosecutions v. Stonehouse [1977] 2 All E.R. 909, referred
to.
Abhavanand Mishra v. The State of Bihar
[1962] 2 SCR 241 @ 253, applied.
Malkiat Singh & Anr. v. State of Punjab
[1969] 2 SCR 663 @ 667, distinguished.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 335 of 1974.
Appeal by special leave from the Judgment and
Order dated 1-11-1973 of the Bombay High Court in Criminal Appeal No. 113 of
1972.
O. P. Rana and M. N. Shroff for the
Appellant.
V. N. Ganpule and V. B. Joshi for the
Respondents.
The following Judgments were delivered:
SARKARIA, J.-This appeal by special leave
preferred by the State of Maharashtra, is directed against a judgment dated
November 1, 1973, of the Bombay High Court.
Mohd. Yakub respondent 1, Shaikh Jamadar
Mithubhai respondent 2, and Issak Hasanali Shaikh respondent 3, were tried in
the court of the Judicial Magistrate First Class, Bassein, Bombay, in respect
of three sets of offences punishable under section 135 read with section 135
(2) of the Customs Act, 1962. The first charge was the violation of sections
12(1), 23(1) and 23 (d) of the Foreign Exchange Regulation Act, 1947, the
second was violation of Exports (Council) Order No. 1 of 1968 E.T.C. dated
March 8, 1968;
and the third was the contravention of the
provisions of Sections 7, 8, 33 and 34 of the Customs Act, 1962. They were also
charged for violation of the Exports (Control) Order No. 1/68 E.T.C. dated
March 8, 1968 issued under sections 3 and 4 of the Imports and Exports
(Control) Act, 1947 punishable under section 5 of the said 1161 Act. The gist
of the charges was that the respondents attempted to smuggle out of India 43
silver ingots, weighing 1312.410 kgs., worth about Rs. 8 lakhs, in violation of
the Foreign Exchange Regulation Act, the Imports & Exports (Control) Act,
1947, and the Customs Act.
The facts of the case were as follows:
On receiving some secret information that
silver would be transported in Jeep No. MRC-9930 and Truck No. BMS-796 from
Bombay to a coastal place near Bassein, Shri Wagh, Superintendent of Central
Excise along with Inspector Dharap and the staff proceeded in two vehicles to
keep a watch on the night of September 14, 1968 at Shirsat Naka on the National
Highway No. 8, Bombay City. At about mid-night, the aforesaid jeep was seen
coming from Bombay followed by a truck. These two vehicles were proceeding
towards Bassein.
The officers followed the truck and the jeep
which, after travelling some distance from Shirsat Naka, came to a fork in the
road and thereafter, instead of taking the road leading to Bassein, proceeded
on the new National Highway leading to Kaman village and Ghodbunder Creek.
Ultimately, the jeep and truck halted near a bridge at Kaman creek whereafter
the accused removed some small and heavy bundles from the truck and placed them
aside on the ground. The Customs Officers rushed to the spot and accosted the
persons present there. At the same time, the sound of the engine of a
mechanised sea-craft from the side of the creek was heard by the officers. The
officers surrounded the vehicles and found four silver ingots near the footpath
leading to the creek. Respondent 1 was the driver and the sole occupant of the
jeep, while the other two respondents were the driver and cleaner of the truck.
The officers sent for Kana and Sathe, both residents of Bassein. In their
presence, respondent 1 was questioned about his identity. He falsely gave his
name and address as Mohamad Yusuf s/o Sayyad Ibrahim residing at Kamathipura.
From the personal search of respondent 1, a pistol, knife and currency notes of
Rs. 2,133/- were found. Fifteen silver ingots concealed in a shawl were found
in the rear side of the jeep and twenty- four silver ingots were found lying
under saw-dust bags in the truck. The truck and the jeep together with the
accused- respondents and the silver ingots were taken to Shirsat Naka where a
detailed panchanama was drawn up. Respondent 1 had no licence for keeping a
pistol. Consequently the matter was reported to Police Station Bassein, for
prosecuting the respondent under the Arms Act.
1162 The respondents and the vehicles and the
silver ingots were taken to Bombay on September 15, 1968. The statements of the
respondents under section 108 of the Customs Act were recorded by Shri Wagh,
Superintendent of Central Excise. The Collector, Central Excise, by his order
dated May 28, 1969, confiscated the silver ingots. After obtaining the
requisite sanction, the Assistant Collector, Central Excise made a complaint
against all the three accused in the court of the Judicial Magistrate, Bassein
for trial in respect of the aforesaid offences.
The plea of the accused was of plain denial
of the prosecution case. They stated that they were not aware of the alleged
silver and that they had just been employed for carrying the jeep and the truck
to another destination. They alleged that they were driven to the creek by the
police.
The trial Magistrate convicted the accused of
the aforesaid offences and sentenced accused 1 to two years' rigorous
imprisonment and a fine of Rs. 2,000 and, in default, to suffer further six
months' rigorous imprisonment. Accused 2 and 3 were to suffer six months'
rigorous imprisonment and to pay a fine of Rs. 500 and, in default, to suffer
two months' rigorous imprisonment.
The accused preferred three appeals in the
court of the Additional Sessions Judge, Thana, who, by his common judgment
dated September 30, 1973, allowed the appeals and acquitted them on the ground
that the facts proved by the prosecution fell short of establishing that the
accused had 'attempted' to export silver in contravention of the law, because
the facts proved showed no more than that the accused had only made
'preparations' for bringing this silver to the creek and "had not yet
committed any act amounting to a direct movement towards the commission of the
offence". In his view, until silver was put in the boat for the purpose of
taking out of the country with intent to export it, the matter would be merely
in the stage of 'preparation' falling short of an 'attempt' to export it.
Since 'preparation' to commit the offence of
exporting silver was not punishable under the Customs Act, he acquitted the
accused.
Against this acquittal, the State of
Maharashtra carried an appeal to the High Court, which, by its judgment dated
November 1, 1973, dismissed the appeal and upheld the acquittal of the
accused-respondents. Hence, this appeal.
1163 In the instant case, the trial court and
the Sessions Judge con-currently held that the following circumstances had been
established by the prosecution:
(a) The officers (Shri Wagh and party) had
received definite information that silver would be carried in a truck and a
jeep from Bombay to Bassein for exporting from the country and for this purpose
they kept a watch at Shirsat Naka and then followed the jeep and the truck at
some distance.
(b) Accused 1 was driving the jeep, while
accused 2 was driving the truck and accused 3 was cleaner on it.
(c) Fifteen silver ingots were found
concealed in the jeep and 24 silver ingots were found hidden in the truck.
(d) The jeep and the truck were parked near
the Kaman creek from where they could be easily loaded in some sea craft.
(e) Four silver ingots from the vehicle had
been actually unloaded and were found lying by the side of the road near the
foot-path leading to the sea.
(f) On being questioned accused 1 gave his
false name and address.
(g) The accused were not dealers in silver.
The trial Magistrate further held that just,
when the officers surrounded these vehicles and caught the accused, the sound
of the engine of a mechanised vessel was heard from the creek. The first
appellate court did not discount this fact, but held that this circumstance did
not have any probative value.
The question, therefore, is whether from the
facts and circumstances, enumerated above, it could be inferred beyond
reasonable doubt that the respondents had attempted to export the silver in
contravention of law from India ? At the outset, it may be noted that the
Evidence Act does not insist on absolute proof for the simple reason that
perfect proof in this imperfect world is seldom to be found.
That is why under Section 3 of the Evidence
Act, a fact is said to be 'proved' when, after considering the matters before
it, the Court either believes it to exist, or considers its existence so
probable that a prudent man ought, under the circumstances of the particular
case, to act upon the supposition 1164 that it exists. This definition of
'proved' does not draw any distinction between circumstantial and other
evidence.
Thus, if the circumstances listed above
establish such a high degree of probability that a prudent man ought to act on
the supposition that the appellant was attempting to export silver from India
in contravention of the law, that will be sufficient proof of that fact in
issue.
Well then, what is an "attempt" ?
Kenny in his 'Outlines of Criminal Law' defined "attempt" to commit a
crime as the "last proximate act which a person does towards the
commission of an offence, the consummation of the offence being hindered by
circumstances beyond his control." This definition is too narrow. What
constitutes an "attempt" is a mixed question of law and fact,
depending largely on the circumstances of the particular case.
"Attempt" defies a precise and exact definition. Broadly speaking,
all crimes which consist of the commission of affirmative acts are preceded by
some covert or overt conduct which may be divided into three stages. The first
stage exists when the culprit first entertains the idea or intention to commit
an offence. In the second stage, he makes preparations to commit it. The third
stage is reached when the culprit takes deliberate overt steps to commit the
offence. Such overt act or step in order to be 'criminal' need not be the
penultimate act towards the commission of the offence. It is sufficient if such
act or acts were deliberately done, and manifest a clear intention to commit
the offence aimed, being reasonably proximate to the consummation of the
offence. As pointed out in Abhayanand Mishra v. State of Bihar(1) 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.
Now, let us apply the above principles to the
facts of the case in hand. The intention of the accused to export the silver
from India by sea was clear from the circumstances enumerated above. They were
taking the silver ingots concealed in the two vehicles under cover of darkness.
They had reached close to the sea-shore and had started unloading the silver
there near a creek from which the sound of the engine of a sea-craft was also
heard. Beyond the stage of preparation, most of the steps necessary in the
course of export by 1165 sea, had been taken. The only step that remained to be
taken towards the export of the silver was to load it on a sea- craft for
moving out of the territorial waters of India. But for the intervention of the
officers of law, the unlawful export of silver would have been consummated. The
calendestine disappearance of the sea-craft when the officers intercepted and
rounded up the vehicles and the accused at the creek, reinforces the inference
that the accused had deliberately attempted to export silver by sea in
contravention of law.
It is important to bear in mind that the
penal provisions with which we are concerned have been enacted to suppress the
evil of smuggling precious metal out of India.
Smuggling is an antisocial activity which
adversely affects the public revenues, the earning of foreign exchange, the
financial stability and the economy of the country. A narrow interpretation of
the word "attempt" therefore, in these penal provisions which will
impair their efficacy as instruments for combating this baneful activity has to
be eschewed. These provisions should be construed in a manner which would
suppress the mischief, promote their object, prevent their subtle evasion and
foil their artful circumvention. Thus, construed, the expression
"attempt" within the meaning of these penal provisions is wide enough
to take in its fold any one or series of acts committed, beyond the stage of
preparation in moving the contraband goods deliberately to the place of
embarkation, such act or acts being reasonably proximate to the completion of
the unlawful export. The inference arising out of the facts and circumstances
established by the prosecution, unerringly pointed to the conclusion, that the
accused had committed the offence of attempting to export silver out of India
by sea, in contravention of law.
For reasons aforesaid, we are of opinion that
the High Court was in error in holding that the circumstances established by
the prosecution fell short of constituting the offence of an 'attempt' to
export unlawfully, silver out of India. We, therefore, allow this appeal, set
aside the acquittal of the accused-respondents and convict them under Section
135(a) of the Customs Act, 1962 read with Section 5 of the Imports and Exports
Control Act, 1947 and the Order issued thereunder, and sentence them as under:
Accused-respondent 1, Mohd. Yakub is
sentenced to suffer one year's rigorous imprisonment with a fine of Rs.
2,000 and, in default, to suffer six months'
further rigorous imprisonment. Accused respondents 2 and 3, namely, Sheikh
Jamadar Mithubhai and Issak Hasanali Shaikh are each sentenced to six months'
rigorous imprisonment 1166 with a fine of Rs. 500 and, in default to suffer two
months' further rigorous imprisonment.
CHINNAPPA REDDY, J. I concur in the
conclusion of my brother Sarkaria, J. in whose Judgment the relevant facts have
been set out with clarity and particularity. I wish to add a few paragraphs on
the nature of the actus reus to be proved on a charge of an attempt to commit
an offence.
The question is what is the difference
between preparation and perpetration? An attempt to define 'attempt' has to be
a frustrating exercise. Nonetheless a search to discover the characteristics of
an attempt, if not an apt definition of attempt, has to be made.
In England Parke B described the
characteristics of an 'attempt' in Reg. v. Eagleton,(1) as follows:- "the
mere intention to commit a misdemeanor is not criminal. Some act is required,
and we do not think that all acts towards committing a misdemeanor indictable.
Acts remotely leading towards the commission of the offence are not to be
considered as attempts to commit but acts immediately connected with it
are..... " The dictum of Parke B is considered as the locus classicus on
the subject and the test of 'proximity' suggested by it has been accepted and
applied by English Courts, though with occasional but audible murmur about the
difficulty in determining whether an act is immediate or remote. Vide Lord Goddard
C.J. in Gardner v. Akeroyed.(2) "....it is sometimes difficult to
determine whether an act is immediately or remotely connected with the crime of
which it is alleged to be an attempt". Parke B. himself appeared to have
thought that the last possible act before the achievement of the end
constituted the attempt. This was indicated by him in the very case of Reg. v.
Eagleton (supra) where he further observed:
"................. and if, in this case
........
any further step on the part of the defendent
had been necessary to obtain payment........ we should have thought that the
obtaining credit.......... would not have been sufficiently proximate to the
obtaining the money. But, on the statement in this case, no other act on the
part of the 1167 defendant would have been required. It was the last act,
depending on himself towards the payment of the money, and therefore it ought
to be considered as an attempt".
As a general principle the test of 'the last
possible act before the achievement of the end' would be entirely unacceptable.
If that principle be correct, a person who has cocked his gun at another and is
about to pull the trigger but is prevented from doing so by the intervention of
someone or something cannot be convicted of attempt to murder.
Another popular formulation of what
constitutes 'attempt' is that of Stephen in his Digest of the Criminal Law
where he said:
"An attempt to commit a crime is 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. The
point at which such a series of acts begins cannot be defined;
but depends upon the circumstances of each
particular case".
While the first sentence is an attempt at
defining 'attempt', the second sentence is a confession of inability to define.
The attempt at definition fails precisely at the point where it should be
helpful. See the observations of Parker C.J. in Davey v. Lee(1) and of Prof.
Glanville Williams in his essay on 'Police Control of intending criminals' in
1955 Criminal Law Review.
Another attempt at definition was made by
Professor Turner in [1934] 5 Cambridge Law Journal 230, and this was
substantially reproduced in Archbald's Criminal Pleading, Evidence and Practice
(36th Edn.). Archbald's reproduction was quoted with approval in Davey v.
Lee(1) and was as follows:
'........... the actus reus necessary to
constitute an attempt is complete if the prisoner does an act which is a step
towards the commission of a specific crime, which is immediately and not merely
remotely connected with the commission of it, and the doing of which cannot
reasonably be regarded as having any other purpose than the commission of the
specific crime".
We must at once say that it was not noticed
in Archbald's (36th Edn.) nor was it brought to the notice of the Divisional
Court which decided Davey v. Lee (supra) that Prof. Turner was himself not
satisfied with the definition propounded by him and felt compelled to 1168
modify it, as he thought that to require that the act could not reasonably be
regarded as having any other purpose then the commission of the specific crime
went too far and it should be sufficient "to show prima facie' the
offender's intention to commit the crime which he is charged with attempting".
Editing 12th edition of Russell on Crime and
18th edition of Kenny's Outlines of Criminal Law, Professor Turner explained
his modified definition as follows:
"It is therefore suggested that a
practical test for the actus reus in attempt is that the prosecution must prove
that the steps taken by the accused must have reached the point when they
themselves clearly indicate that was the end towards which they were directed.
In other words the steps taken must themselves be sufficient to show, prima
facie, the offender's intention to commit the crime which he is charged with
attempting. That there may be abundant other evidence to establish his mens rea
(such as a confession) is irrelevant to the question of whether he had done
enough to constitute the actus reus".(1) We must say here that we are
unable to see any justification for excluding evidence aliunde on the question
of mens rea in considering what constitutes the actus reus. That would be
placing the actus reus in too narrow a pigeon-hole.
In Haughten v. Smith,(2) Hailsham L. C.
quoted Parke B from the Eagleton case (supra) and Lord Parker, C.J. from Davey
v. Lee (supra) and proceeded to mention three propositions as emerging from the
two definitions:
"(1) There is a distinction between the
intention to commit a crime and an attempt to commit it........
(2) In addition to the intention, or mens
rea, there must be an overt act of such a kind that it is intended to form and
does form part of a series of acts which would constitute the actual commission
of the offence if it were not interrupted...... (3) The act relied on as
constituting the attempt must not be an act merely preparatory to commit the
completed offence, but must bear a relationship to the completion of the
offence referred to in Reg. v. Eagleton, as being 'proximate' to the completion
of the offence in 1169 Davey v. Lee [1968] 1 Q.B. 366, 370, as being
'immediately and not merely remotely connected' with the completed
offence...... " In Director of Public Prosecutions v. Stonehouse,(1) Lord
Diplock and Viscount Dilhorne, appeared to accept the 'proximity' test of Parke
B, while Lord Edmund-Davies accepted the statement of Lord Hailsham as to what
were the true ingredients of a criminal attempt. Whatever test was applied, it
was held that the facts clearly disclosed and attempt in that case.
In India, while attempts to commit certain
specified offences have themselves been made specific offences (e.g. 307, 308
Indian Penal Code etc.), an attempt to commit an offence punishable under the
Penal Code, generally, is dealt with under section 511 Indian Penal Code. But
the expression 'attempt' has not been defined anywhere.
In Abhayanand Mishra v. The State of
Bihar,(2) Raghubar Dayal and Subba Rao, JJ., disapproved of the test of 'last
act which if uninterrupted and successful would constitute a criminal offence'
and summarised their views as follows:
"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 Malkiat Singh & Anr v. State of
Punjab,(3) a truck which was carrying paddy, was stopped at Samalkha 32 miles
from Delhi and about 15 miles from the Delhi-Punjab boundary. The question was
whether the accused were attempting to export paddy from Punjab to Delhi. It
was held that on the facts of the case, the offence of attempt had not been
committed. Ramaswamy. J., observed:
"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
1170 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".
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 would necessarily 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 Shirsad 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 1171 not to be exported but only to be transported in the
course of intercoastal 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.
In the result I agree with the order proposed
by Sarkaria, J.
P.B.R. Appeal allowed.
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