|Equivalent Citation||1980 AIR 1111, 1980 SCR (2)1158|
|Date of Judgment||4th March, 1980|
|Court||Supreme Court of India|
|Case Type||Criminal appeal|
|Petitioner/ Appellant||State of Maharashtra|
|Respondent||Mohd. Yakub, Shaikh Jamadar Mithubhai, and Issak Hasanali Shaikh|
|Bench||Hon’ble Justice Ranjit Singh Sakaria|
|Statutes Referred||The Indian Penal Code, 1860; The Foreign Exchange Regulation Act, 1973; the Customs Act, 1962; The Indian Evidence Act, 1872|
Facts of the Case
- The Central Excise Commissionerate received a piece of surreptitious information that silver was to be illegally transported from Bombay to a place alongside a lonely coast, near Bassein, in Truck No. BMS-796 and Jeep No. MRC-9930
- On the night of September 14, 1968, Superintendent of Central Excise, Shri Wagh and Inspector Dharap along with other staff members proceeded in two separate vehicles towards Shirsat Naka on the National Highway No. 8, Bombay, to keep a watch on the aforesaid vehicles.
- At around midnight, the officers saw the aforementioned jeep and truck coming from Bombay, and moving towards Bassein. The officers started following these two vehicles that then changed their routes and moved towards the new National Highway leading to Kaman Village and Ghodbundar Creek. Finally, the accused respondents stopped near the Kaman Creek.
- They then started removing some small and heavy bundles from the truck. Immediately, the Customs Officer went to the spot and accosted the ones present there. They also heard the sound of a mechanized seacraft’s motor coming from the creek’s edge at the same moment. When the police surrounded the vehicles, they discovered four silver ingots close to the path that led to the creek.
- Upon investigation, Respondent No. 1, who was the sole occupant and driver of the jeep, falsely introduced himself as Mohamad Yusuf s/o Sayyad Ibrahim residing at Kamathipura. When the personal search was made on Respondent No. 1, a handgun, for which he didn’t have a license, a knife, and Rs. 2,133/- were found. Respondent no. 2 was the truck driver and Respondent no. 3 was the cleaner of the truck.
- The back of the jeep contained fifteen silver ingots hidden in a shawl, and the truck contained twenty-four silver ingots hidden beneath bags of sawdust. A detailed Panchanama of the incident was then filed at Shirsat Naka.
- The Assistant Collector of Central Excise filed a complaint against each of the three accused in the court of the Judicial Magistrate of Bashin for trial on the aforementioned offenses after receiving the necessary approval.
- The Trail Magistrate sentenced accused no. 1 to rigorous imprisonment for 2 years with a fine of Rs. 2000, which if defaulted, would lead to an extended term of rigorous imprisonment for 6 months, and accused no. 2 and 3 were collectively sentenced to rigorous imprisonment for a term of 6 months with a fine of Rs. 500, which if defaulted, would lead to an extended term of rigorous imprisonment for 2 months.
- This decision was overturned by the Additional Sessions Judge, Thana stating that the facts and evidence show that there was only preparation and an ‘attempt’ was not yet made. The attempt would have been completed when the silver ingots were put into the boat with the intention to export them unlawfully. An appeal was then filed against this order by the State of Maharashtra in the Bombay High Court, which maintained the acquittal of the accused. Thus, an appeal was carried in the Supreme Court of India.
Petitioner’s Argument: The Petitioner argued that the accused respondents came from Bombay and moved towards Kaman Creek to smuggle the silver out of India through waterways. The sound of a mechanized seacraft’s motor coming from the creek’s edge at the same moment when the Customs officer went to accost the accused, affirms their hypothesis. Also, the silver was found on the pathway leading toward the creek, which confirms that they were about to transport the silver ingots out of India illegally.
Respondent’s Argument: The respondents argued that they were not aware of the silver’s presence in their vehicles. They pleaded that they were merely drivers of the jeep and truck and were hired for that purpose. Also, they alleged that the police took them to the creek.
- Whether the accused have attempted to unlawfully transport silver out of India.
- Whether the last proximate act, if hindered, would not amount to the offense of ‘attempt’
The Hon’ble Supreme Court bench expressed that the lower courts were erroneous in stating that the act committed by the accused was merely at the preparation stage and the offense of ‘attempt’ was not committed. The Bench while stating that giving a precise definition of ‘attempt’ is not possible affirmed the general rule called out in Abhayanand Mishra v. State of Bihar, which explained that every crime consists of three stages, the first stage can be called ‘intention’ or the phase where the intention to commit an offense comes into the mind of the culprit. The second stage can be called the ‘preparation’ or the phase where the culprit starts the preparation for the commission of the crime. The third stage is ‘attempt’ or the phase where any overt and deliberate act is performed for completion of the crime. The act should clearly show the presence of some intention to commit the crime and not just a desire or object.
Also, the proximity should be with the intention and not just with the act. In other words, the offense of ‘attempt’ is not necessarily the immediately preceding act of the crime which if interrupted, would not make up the offense of ‘attempt’. For instance, someone who has cocked a gun toward someone else and is ready to fire but is stopped by something or someone else is found ‘not guilty’ of attempting to kill would be a wrong way to decide the matter because there existed a clear intention of killing and if there was no interruption, the offense would be committed.
In the instant case, if the accused were stopped and investigated before reaching the creek, somewhere on the highway, the lower courts could be justified in saying that no offense of ‘attempt’ was made or there was no mens rea in their action and the accused were merely at the stage of preparation. But, since the officers followed the accused throughout their way to the creek and after the accused removed the silver ingots from the truck and jeep, and then were caught by the officers, and also found silver ingots on the pathway that was leading towards the waterbody, they were no longer in the stage of preparation. It clearly showed their intention to transport silver unlawfully through the seacraft.
Thus, the Hon’ble bench of the Supreme Court upheld the charges made against the accused for committing the offense of ‘attempt’ to smuggle 43 silver ingots, weighing around 1312.410 kgs, which is worth about Rs. 8 Lakhs under the Foreign Exchange Regulation Act; the Imports & Exports (Control) Act, 1947; section 7, 8, 33 and 34 of the Customs Act, 1962; section 135 read with section 135 (2) of the Customs Act, 1962; and section 12(1), section 23(1) and section 23 (d) of the Foreign Exchange Regulation Act, 1947.
The appeal was allowed by the Hon’ble Bench of the Supreme Court.
- Indian Kanoon, https://indiankanoon.org/doc/1809118/ (Last Visited: Nov. 11, 2023)
- Supreme Court of India, https://main.sci.gov.in/jonew/judis/4591.pdf (Last Visited: Nov. 11, 2023)
This article is written by Richa Mehta of Thakur Ramnarayan College of Law, an Intern at Legal Vidhiya.