In the Supreme Court of India Criminal Appeal No. 335 of 1947, Citation: (1980) 3 SCC 57 Petitioner State of Maharashtra Respondents Mohd. Yakub & ors. Date of Judgement 4th March 1980 Bench Hon’ble Justice R.S. Sarkaria; Hon’ble Justice O. Chinnappa Reddy
In the Commission of a crime, there are 4 stages. First, the intention or mens rea to commit the criminal act. Second, doing the preparations to commit such a crime. Third, Attempt to commit the crime, whether the person fails or succeeds, what matters is the attempt. Fourth, the commission of crime i.e. successful attempt. The third and fourth stage i.e. attempt and commission of an offense is a crime under penal laws in India and is punishable. The preparation is not a crime itself but it can be a crime in some rare cases i.e. preparation of waging war against national security etc. The present case i.e. State of Maharashtra v. Mohd. Yakub and ors.[i] discusses the meaning of attempt and how does it apply to the Smuggling laws in India.
It must be noted that there can be no exact definition of ‘Attempt’ as it would depend on the facts and circumstances of each particular case. The England Courts and various authors in books, articles have tried to describe as to what constitutes attempt but all the definitions have some or other lacunae in it. The Indian Supreme Court in Abhayanand Mishra v. State of Bihar,[ii] held that to constitute an attempt there must be the intention of the person to commit an offense. The preparation to commit the offense must be complete. The person must have done some act towards the commission of the offense, the act done need not be the ‘last act’ in the commission of the offense.
Statutory Provisions Discussed
- Sections 7, 8, 33, 34, 135, and 135 (2) of the Customs Act, 1962. [Hereinafter referred to as ‘Act’].
- Sections 12(1), 23(1) and 23 (d) of the Foreign Exchange Regulation Act, 1947.
- Sections 3, 4 and 5 of the Imports and Exports (Control) Act, 1947
- Section 3 of Evidence Act, 1872.
Facts of the Case-
The Police received information that silver will be transferred illegally out of India and that silver will be carried in a jeep and truck to the Ship. The police and Central excise officers followed the jeep and truck on the night of September 14, 1968, at the National Highway- 8, Bombay. The Truck and Jeep proceeded towards the new National Highway leading to Ghodbunder Creek. The Jeep and truck stopped and some heavy but small metals were unloaded from the truck and some were placed on the ground near the river. The Police and Customs authorities approached them and as they approached they heard the sound of the engine of sea craft from the creek. Respondent 1 was the sole occupant of the Jeep and there were two persons in the truck. There were 4 silver ingots found on the ground towards the creek.15 silver ingots in the jeep and 24 silver ingots in Truck which were concealed were found by the Police. An unlicensed pistol from respondent 1 was also found during a personal search. The Respondents plainly denied all the allegations and said that they were just employed to carry the Jeep and Truck to another destination and they were not aware of the Silver ingots. The Trial Magistrate found them guilty and convicted them to rigorous imprisonment.
An appeal was preferred against the order of the Trial Magistrate. The Additional Sessions Judge allowed the appeals and acquitted all the 3 Respondents on the ground that the act of the Respondents only amounted to ‘Preparation’ and fell short of ‘Attempt’. The Prosecution appealed to the High Court of Bombay which upheld their acquittal and dismissed the appeal. Hence, the State of Maharashtra preferred this appeal before the Supreme Court.
1. Whether in the present case, it could be inferred beyond a reasonable doubt that the respondents had attempted to export the silver in contravention of law from India?
The Judgment of the Court was given by both the judges on the bench i.e. Justice Sarkaria and Justice Chinnappa Reddy. They both gave a concurring judgment.
Justice Sarkariafirst reiterates the important facts which have been established by the prosecution before the lower courts. Then he considers the question that, ‘What is Attempt?’ He relies upon Abhayanand Mishra’s[iii]case to define an attempt in a general sense as,
“In sum, a person commits the offense of ‘attempt to commit a particular offense’ when (i) he intends to commit that particular offense; and (ii) he, having made preparations and with the intention to commit the offense, does an act towards its commission; such an act need not be the penultimate act towards the commission of that offense but must be an act during the course of committing that offense.”
Then he applies the aforesaid principle to the present case. The intention of the accused was clear because they were taking silver ingots in a concealed manner near the creek. They had also started unloading the ingots which are evident by the fact that 4 ingots were lying on the ground towards the creek. The sound of the engine of sea-craft was also heard. Hence, all the necessary steps to attempt the smuggling has been done by the accused. The only step that was remaining was to load ingots on the boat and take it outside India which was prevented by the intervention of the police.
He then examined the objective of smuggling laws and said that if these penal provisions would be interpreted narrowly then it would defeat the objective of the laws. He said that narrow interpretation of the word ‘Attempt’ cannot be done and it includes one or more events done beyond the stage of preparation. Justice Sarkaria held that Respondents have committed the offense of Attempt to smuggle the Silver ingots outside India and hence they are convicted under Section 135(a) of the Customs Act, 1962 read with Section 5 of the Imports and Exports Control Act, 1947.
Justice Chinnappa Reddy gave a concurring judgment but also expressed his own views. He examined what is the difference between Preparation and Perpetration? He considered various England Court’s Judgment and various books of authors to frame as to what constitutes an attempt. He also noted down the lacunae that were present in those definitions. He then relied upon Abhayanand Mishra’s case to define as to what constitutes an attempt. He also did not accept the view of Malkiat Singh v. the State of Punjab,[iv] which said that a person might change his mind at last instance and if the overt acts already did are not harmful then it would not be an attempt. Justice Reddy did not accept this view for two reasons- first, this case talked particularly about facts of that case only and not in the general sense. Second, if that view is accepted that whenever an accused is stopped at last moment by the police he can always take the defense that he was about to change his mind.
He said there are three things necessary to constitute an attempt i.e. (1) there must be an intention to commit the offense. (2) Some acts must be done towards the commission of the offense. (3) The acts done must be in proximity to the intended result. In the present case, if the truck and jeep would have been stopped at the beginning or in between the journey then it could be said it is only preparation for the offense but now they have already reached the creek at midnight and were about to shift the ingots in the boat. Thus, it constitutes an attempt to smuggle silver outside India and hence he concurred with conviction and sentence given by Justice Sarkaria. The appeal was allowed and the order of the High Court was set aside.
The present case focuses on what constitutes an attempt. The Court took a broader view rather than a narrow view. The case was related to smuggling outside India and hence the broader view of ‘attempt’ could prevent mischief and also promote the objective of such laws. The Court also did not accept the reasoning of Malkiat Singh’s case because then every accused person can take the defense that he about to change his mind. The Court laid down general characteristics of ‘attempt’ because an apt definition cannot be made since it will vary from case to case. Hence, the Court laid down the general definition by taking a broader perspective to give effect to the penal provisions.
“The views of the authors are personal“
[i] State of Maharashtra v. Mohd. Yakub and Ors., (1980) 3 SCC 57.
[ii] Abhayanand Mishra v. State of Bihar, AIR 1961 SC 1698.
[iv] Malkiat Singh v. the State of Punjab, (1969) 1 SCC 157.