1980 (3) TMI 105 - SC - Customs

Exports Preparation and attempt Distinction between - Attempt - Evidence Fact inissue Circumstantial evidence Words and phrases - Interpretation Economic offence and smuggling

Summary

Issues Involved:
1. Violation of Foreign Exchange Regulation Act, 1947.
2. Violation of Exports (Control) Order No. 1 of 1968.
3. Contravention of Customs Act, 1962.
4. Definition and determination of "attempt" in the context of smuggling.

Detailed Analysis:

1. Violation of Foreign Exchange Regulation Act, 1947:
The respondents were charged with attempting to smuggle 43 silver ingots, weighing 1312.410 Kgs., valued at approximately Rs. 8 lakhs, in violation of Section 12(1), 23(1), and 23(d) of the Foreign Exchange Regulation Act, 1947. The trial Magistrate found the respondents guilty, but the Additional Sessions Judge acquitted them, concluding that the prosecution's evidence only showed preparation, not an attempt to export the silver. The Supreme Court, however, disagreed, stating that the circumstances clearly indicated an intention to export the silver, thereby constituting an attempt.

2. Violation of Exports (Control) Order No. 1 of 1968:
The respondents were also charged under 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 Act. The trial court's conviction was overturned by the Sessions Judge, who ruled that the acts of the respondents were preparatory and not proximate enough to constitute an attempt. The Supreme Court reversed this, emphasizing that the acts of the respondents went beyond preparation and were proximate to the commission of the offence.

3. Contravention of Customs Act, 1962:
The respondents were charged under Sections 7, 8, 33, and 34 of the Customs Act, 1962, and were found guilty by the trial Magistrate. The Sessions Judge acquitted them, reasoning that the acts did not amount to an attempt. The Supreme Court held that the respondents' actions constituted an attempt under Section 135(a) of the Customs Act, 1962, as they had taken deliberate steps towards exporting the silver.

4. Definition and Determination of "Attempt":
The core issue was whether the respondents' actions constituted an "attempt" to export silver. The Supreme Court elaborated on the concept of "attempt," stating that it begins where preparation ends. An act is considered an attempt if it is a deliberate step towards the commission of the offence and is reasonably proximate to its completion. The Court cited various legal definitions and precedents to support this interpretation. The Court concluded that the respondents' actions, including transporting the silver to a creek and beginning to unload it, were proximate enough to constitute an attempt to export.

Conclusion:
The Supreme Court overturned the acquittal by the High Court and the Sessions Judge, reinstating the trial Magistrate's conviction. The respondents were found guilty of attempting to export silver in contravention of the Foreign Exchange Regulation Act, the Imports and Exports (Control) Act, and the Customs Act. The Court sentenced respondent 1 to one year's rigorous imprisonment and a fine of Rs. 2,000, and respondents 2 and 3 to six months' rigorous imprisonment and a fine of Rs. 500 each.

Separate Judgment by Chinnappa Reddy, J.:
Chinnappa Reddy, J., concurred with the conclusion but added a detailed discussion on the nature of "attempt." He emphasized the difficulty in distinguishing between preparation and perpetration and cited various legal definitions and cases to elucidate the concept. He concluded that the respondents' actions were indicative of an intention to export the silver, thereby constituting an attempt.

Final Orders:
The appeal was allowed, the acquittal was set aside, and the respondents were convicted and sentenced as detailed above.