LexSTATE OF MAHARASHTRA versus MOHD. Y AKUB S/0 ABDUL HAMID & ORS.
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A c • 1158 STATE OF MAHARASHTRA v. MOHD. Y AKUB S/0 ABDUL HAMID & ORS. March 4, 1980 [R. S. SARKARIA AND 0. CHINNAPPA REDDY, JJ.J Penal' Code--Atte1npt to con1mit an offence-What constitutes-"I'repara- tion" and "attenipt" distinction. The respondents were charged with th'e offence of attempting to smuggle out cf India 43 silver ingots in violation of the Foreign Exchange Regulation Act, 1947, Imports and Exports (Control) Act, 1947 and the Customs Act, l 962. The prosecution alleged that on the night of the occurrence the res.pondents 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 lon-ely creek nearby and that when the ingots were unloaded n'ear the creek the sound of the engine of a mechanised s·ea-craft from the side of the creek was heard by the Customs officials and that therefore they were guilty of attempting to ~muggle silver out of India. The respondents pleaded that they w'ere 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. E The Trial Court convicted and sent.enced them to vaI_:ious terms of imprio;on- ment 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 marle _/ "preparations" for bringing the silver to the creek and "had not con1mittcd any -...___ ~ act amounting to a direct mov'ement towards the commission of the offence" and F 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 contra- vention of the law. G B The High Court dismissed the State's appeal. Allowing the appeal to this Court, HELD : Per Sarkaria, J. : (Chtnnappa 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 Jndia. [1165F] 2. The expression "attempt" within the .meaning of the penal provision" 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 1'eing reasonably proximate to the completior. of the unlawful export. [ll65E]. > ( t ·,Y , MAHARASHTRA V. MOHD. YAKUB 1159 3. The definition of 'proved' contained in section 3 of the Evidence Act does not draw any distinction between cir.::umstantial 2.n<l other evidence. If the ·circumslances establish such a high degree of probability that a prudent n1~1n ought to act on the supposition that the accused was attempting to export silver from Jndia in contravention of the law, that woukl be ~ufficicnt proof rJf tbc.t fact in issue. [1164A·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" defie~ a precise and exr.::t definition. Bro•adly speaking, all crimes which cons1"-t of the commission of affirmative acts are preceded by some covert or ov~rt conduct which may be divided into three stages : the first stage exists when the c;.ilplit first entertains the idea or intention to commit an offen•;;;e; in the s'econd stage he makes preparations to commit it; and the third stage is reac_hed when the culprit takes. delib'~rate overt steps to commit the offence. Such overt act 01 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 proxi~ ma(e to the consu1nmation of lhe offence. [1164C-E] Abhayanand Mishra v. State of Bihar, [1962] 2 S.C.R. 241, followed. (b) There is a distinC:tion between "preparation" and "attempt". Attempt begins where preparation ends. In sum, a p'erson commits the offence of 'at· -tempt to commit a particular offence' when (i) he intends to commit that part?· cul.ar offence c.nd (ii) he, having made preparations and ·with the int'euti,)n to commit the offence, does an act towards its commission; such an ac.t need not be the penultimate act towards th
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