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TMI Blog2007 (10) TMI 80X X X X Extracts X X X X X X X X Extracts X X X X ..... ga" where interception was made by BSF. It was also his submission that the Show Cause Notice states that there was "intention" and "preparation" of the noticees for illegal attempt of export. Such Notice does not state the manner how "attempt for export" was made. Therefore, the case is not covered by Section 113(d) of Customs Act, 1962. According to the ld. Counsel, the source and destination of money was well explained which is patent from Show Cause Notice itself. His further submission was that the case was detected by BSF on 22-10-2002 at about 16.00 Hrs. but when they handed over the case to the Customs Authorities is not patent from the brief fact of the case as well as Show Cause Notice. Further, the mere inspection of the currency ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e money for depositing into the cash credit account maintained by Liakat Ali in Central Bank of India at Malda which was also round by adjudicating officer being corroborated as to the maintenance of account by the order of adjudication itself. Therefore, nothing is in record proving intention of carrying money for any ulterior purpose and whether there was any circumstantial or direct evidence suggesting "attempt" to export the currency. Mere "preparation" if that was at all, that does not amount to attempt. Meaning of the term "attempt" as observed by Hon'ble Supreme Court in the case of State of Maharashtra v. Mohd. Yakub & Ors. reported in 1983 (13) E.L.T. 1637 = AIR 1980 SC 1111 relying on the judgment of Abhayanand Mishra v. State of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmits the of fence of "attempt to commit a particular offence" when (i) he intends to commit that particular offence; and (ii) he, having made preparations and with the intention to commit the offence, does an act towards its commission; such an act need not be the penultimate act towards the commission of that offence but must be an act during the course of committing that of fence". 4.2 Furthermore, the attempt has to result with either futility or success of the smuggle. This aspect should have been examined on the light of evidence and appreciated by the authorities below and brought out very clearly the charge proving the manner how attempt was made. Three learned judges of the Hon'ble Supreme Court in the case of Malkiat Singh v. Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... commission of a crime, and those which are sufficiently proximate to it to amount to an attempt to commit it. If a man buys a box of matches, he cannot be convicted of attempted arson, however, clearly it may be proved that he intended to set fire to a haystack at the time of the purchase. Nor can he be convicted of this offence if he approaches the stack with the matches in his pocket, but, if he bends down near the stack and lights a match which he extinguishes on perceiving that he is being watched, he may be guilty of an attempt to burn it. Sir James Stephen, in his digest of Criminal Law, art. 50 defines an attempt as follows :- "An act done with intent to commit that crime, and forming part of a series of acts which would constitute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the aspect of "attempt" in the following terms "So far as the law in India is concerned, it is beyond dispute that there are four stages in every crime, the intention to commit, the preparation to commit, the attempt to commit and, if the third stage is successful, the commission itself. Intention alone or intention followed by preparation are not sufficient to constitute and attempt. But intention followed by preparation followed by any 'act done towards the commission of the offence' is sufficient. 'Act done towards the commission of the offence' are the vital words in this connection". - Page 54 5. In the result, for no evidence brought in record proving attempt to export for reasons aforesaid, the appellants have to succeed and appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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