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TMI Blog2007 (10) TMI 80X X X X Extracts X X X X X X X X Extracts X X X X ..... Such a fact was corroborated from Page-6 of the order of adjudication showing that CC-A/c. No. 168 was maintained by Appellant No.1 in that Bank. Secondly, he also submitted that the notification under Section 7 does not cover the place "Danga" where interception was made by BSF. It was also his submission that the Show Cause Notice states that there was "intention" and "preparation" of the noticees for illegal attempt of export. Such Notice does not state the manner how "attempt for export" was made. Therefore, the case is not covered by Section 113(d) of Customs Act, 1962. According to the ld. Counsel, the source and destination of money was well explained which is patent from Show Cause Notice itself. His further submission was that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und in notified area nor notified goods calling for discharging burden of proof under Section 123 of the Customs Act by the Appellants. Furthermore, the intention of all the noticees were very clear from the show cause notice itself that they carried the money for depositing into the cash credit account maintained by Liakat Ali in Central Bank of India at Malda which was also round by adjudicating officer being corroborated as to the maintenance of account by the order of adjudication itself. Therefore, nothing is in record proving intention of carrying money for any ulterior purpose and whether there was any circumstantial or direct evidence suggesting "attempt" to export the currency. Mere "preparation" if that was at all, that does not a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of fence 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 of fence". 4.2 Furthermore, the attempt has to result with either futility or success of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ategorically 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, II., chose to sum up the law in India on the aspect of "attempt" in the following terms "So far as the law in India is concerned, it is beyond dispute that there are four stages in every crime, the intention to commit, the preparation to commit, the attempt to commit and, if the third stage is successful, the commission itself. Intention alone or intention followed by preparation are not sufficient to constitute and attempt. But intention followed by preparation followed by any 'act ..... X X X X Extracts X X X X X X X X Extracts X X X X
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