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TMI Blog1980 (3) TMI 105X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 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 and Exports (Control) Act, 1947, and the Customs Act. 3. 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 Bomaby 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, Bomaby City. At about mid-night, the aforesaid jeep was seen coming from Bomaby 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y alleged that they were driven to the creek by the police. 6. 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. 7. 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. This definition of `proof' 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. 13. Well then, what is an "attempt"? Kenny is 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 sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cial 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 had to be eschewed. These provisions should be construed in 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 embarakation, 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. 16. For reasons aforesaid, we are of opinion that the High Court was in error in holding that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 though 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 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 some one or something cannot be convicted of attempt to murder. 22. Another popular formulation of what constitutes `attempt' is that of Stephen in his Digest of the Criminal Law wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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.". We must say here that we are unable to see any justification for excluding evidences allunde on the question of mens rea inconsidering what constitutes the actus reus. That would be placing the actus reus in too narrow a pigeon-hole. 26. In Haughten v. Smith, 1975 AC 476 at p. 492. Hailshan L.C. quoted Parke B form the Eagleton case and Lord Parker, C.J. from Devey v. Lee 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 a constituting th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the acts already done would be completely harmless. In the present case it is quite possible that the appellants may have been warned that they had not 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. 31. Let me now state the result of the search and research : In order to constitute "an attemp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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