Case – State of Maharashtra v. Mohd. Yakub, 1980
Fact
The prosecution alleged that on the night of the occurrence the respondents 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 lonely creek nearby and that when the ingots were unloaded near the creek the sound of the engine of a mechanized sea-craft from the side of the creek was heard by the Customs officials.
The accused was convicted by the trial court for attempting to smuggle silver out of India in contravention of Customs Act 1962 and Foreign Exchange Regulation Act 1947. The sessions court in appeal acquitted the accused 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.
Issue
Whether accused has took the “attempt” to smuggle the silver out of India?
Contentions & Judgement:
- In order to constitute ‘an attempt’, first, there must be an intention to commit a particular offence, second, some act must have been done which would necessarily have to be done towards the commission of the offence, and third, such act must be ‘proximate’ to the intended result. The measure of proximity is not in relation to time and action but in relation to intention.
- In other words, the act must reveal, with reasonable certainty, in conjunction with other facts and circumstances and not necessarily in isolation, an intention, as distinguished from a mere desire or object, to commit the particular offence, though the act by itself may be merely suggestive or indicative of such intention; but, that it must be, that is, it must be indicative or suggestive of the intention.
- The expression “attempt” within the meaning of the penal provisions 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 being reasonably proximate to the completion of the unlawful export.
- The fact that the truck was driven upto a lonely creek from where the silver could be
- transferred into a sea-faring vessel was suggestive or indicative though not conclusive, that the accused wanted to export the silver. It might have been open to the accused to plead that the silver was not to be exported but only to be transported in the course of inter-coastal trade. But, the circumstance that all this was done in a clandestine fashion, at dead of night, revealed, with reasonable certainty, the intention of the accused that the silver was to be exported.
- The court allowed the appeal and set aside the acquittal of the accused respondents and convicted them under Section 135(a) of the Customs Act, 1962 read with Section 5 of the Imports and Exports Control Act, 1947.
