TMI Blog1984 (9) TMI 60X X X X Extracts X X X X X X X X Extracts X X X X ..... thorities for certifying as to the correctness of the description in the invoices. It was certified by them on the invoices that the goods had been inspected in accordance with the regulations prescribed and the contents were as declared in the invoices. Out of the 41 bales, only 2 bales valued at Rs. 45,333.33 CIF pertaining to shipping bill No. 00859 dated 23-5-1984 were brought inside the Customs examination area. At the time of the inspection of the goods, it was found that the goods were dupion silk fabrics as against the description in the shipping bill, viz., "Handloom natural silk fabrics made of 100% mulberry raw silk filature reeled yarn other than dupion". The petitioner had declared in the shipping bills that the shipments were in pursuance of discharge of the obligations against export production and the petitioner claimed registration of the shipping bill in anticipation of the grant of advance licence and duty exemption entitlement certificate, for which it has already applied to the Joint Chief Controller of Imports and Exports, Calcutta and obtained letter of permit from him. The petitioner further declared that the material used is of the same description qualitie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ras were also sent for test and they were shown to the Central Silk Board authorities. Investigation revealed that the two samples drawn from the consignments declared as "100% spun silk fabrics" were only "hand spun silk fabric (matka fabric)" and one sample drawn from the consignments declared as "Silk fabric containing 100% mulberry silk yarn (other than dupion)" was raw silk and hand spun matka fabric. The documents recovered from the petitioner's premises both at Calcutta and at Madras were perused and incrimination details have been noticed. It appears that in the past also the petitioner exported goods by misdeclaring the goods in the shipping documents. The case is under investigation and further enquiries are in progress. The respondent says that this is a case of misdeclaration and the goods are liable to confiscation under section 113(d) of the Act read with section 3(4) of the Export (Control) Order, 1977. 2. The narration of the facts taken from the counter affidavit filed on behalf of the respondent shows that on the ground that the goods are liable to confiscation under section 113(d) of the Act, the justification for retention of the goods and declining to release ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be regarded as the commencement of the offence of which she was convicted. 4. In the matter of the petition of R. Maccrea [(1893) ILR 15 All. 173], Knox, J. observed as follows :- "It is no doubt most difficult to frame a satisfactory and exhaustive definition which shall lay down for all cases where preparation to commit an offence ends and where attempt to commit that offence begins. The question is not one of mere proximity in time or place. Many offences can easily be conceived where, with all necessary preparations made, a long interval will still elapse between the hour when the attempt to commit the offence commences and the hour when it is completed. The offence of cheating and inducing delivery is an offence in point. The time that may elapse between the moment when the preparations made for committing the fraud are brought to bear upon the mind of the person to be deceived and the moment when he yields to the deception practised upon him may be a very considerable interval of time. There may be the interposition of inquiries and other acts upon his part. The acts whereby those preparations may be brought to bear upon his mind may be several in point of number, and ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ift of the section, differentiating in a marked manner the definition of `attempt' in the definition of `attempt' in the Indian Penal Code and the accepted English doctrine. - Pages 181-182-183 5. In Queen Empress v. Luzman Narayan Joshi [(1899) 2 Bom. LR 286], Sir Lawrence Jenkins, C.J., defined `attempt' as "an intentional preparatory action which failed in object through circumstances independent of the person who seeks its accomplishment. In Queen Empress v. Vinayak Narayan Bhartye [(1899) 2 Bom. LR 304], the same learned judge defined "attempt" as "when a man does an intentional act with a view to attain a certain end, and fails in his object throughout some circumstances independent of his own will". 6. In Emperor v. Ganesh Balwant Modak [(1910) ILR 34 Bom. 378], a Division Bench of the High Court at Bombay, consisting of Chandavarkar and Heaton, JJ., held as follows :- "Under the Indian Penal Code (Act XLV of 1860) all that is necessary to constitute an attempt to commit an offence is some external act, something tangible and ostensible or which the law can take hold as an act showing progress towards the actual commission of the offence. It does", not matter that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave done the act, `towards the commission of the offence.' The two illustrations appended to the section bring out the intention of the Legislature. There are decided cases which recognise the existence of three stages in the commission of a crime (1) intention to commit, (2) preparation to commit, and (3) attempt to commit. If the attempt results in the actual commission of the offence, the crime is complete. But the Indian Penal Code makes the attempt also an offence, if the accused does any act towards the commission of the offence, the distinction between preparation and attempt may be clear in some cases, but in most of the cases the dividing line is very thin. Nonetheless it is a real distinction. The crucial test is whether the last act, if uninterrupted and successful, would constitute a crime. If the accused intended that the natural consequence of his act should result in death but he was frustrated only by extraneous circumstance he would be guilty of an attempt to commit the offence of murder. The question is really one of fact depending upon the circumstances of each case." - Page 53 12. In State of U.P. v. Ram Charan (AIR 1962 All. 359), a Bench of the High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mit 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 offence." Page 1703 15. In Malkiat Singh v. State of Punjab [(1969) 2 SCR 663)], three learned judges of the Supreme Court dealt with a case where paddy, booked by a firm in Punjab to a consignee to Delhi, was carried in a lorry driven by the first appellant and the lorry was stopped by the police at a place which was 32 miles from Delhi, that is, inside the State of Punjab (the Punjab-Delhi boundary was 18 miles from Delhi), and the appellants, along with others, were prosecuted and convicted for an offence under section 7 of the Essential Commodities Act, and the Supreme Court, while holding that no offence has been committed by the appellant nor was there an attempt to commit an offence analysed the question and expressed its opinion in the following terms : "...It was merely a preparation on the part of the appellants and as a matter of law a preparation for committing an offence is different from attempt to commit it. The preparation consists in devising or arranging the means or meas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the appellants should not have been convicted under S. 7 of the Essential Commodities Act." Pages 666-667 16. In Sudhir Kumar Mukherjee v. State of West Bengal [(1974) II SCJ 2], two learned Judges of the Supreme Court, referred to its earlier pronouncement in Abhayanand v. State of Bihar (AIR SC 1698), but however, on facts held that what the accused did in that case was a definite step towards the commission of cheating, though it was not the penultimate step. 17. In State of Maharashtra v. Moh. Yakub [(1980) 3 SCC 57], the Supreme Court dealt with a case of an attempt of evasion of duty within the meaning of section 135(l)(a) of the Act. That was a case of an appeal by the State of Maharashtra against an order of acquittal of the respondents by the High Court. The facts run as follows :- "At about midnight a jeep, driven by respondent 1, and a truck stopped near a bridge at a creek and while the accused started removing some bundles from the truck and placing them aside on the ground, the customs officers, who were following them on the basis of definite information rushed to the spot and accosted the persons present there. At the same time, the sound of the engine of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1698) there is a distinction between `preparation' and `attempt'. Attempt begins where preparation ends. In sum, a person commits the offence 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 offence. Chinnappa Reddy, J., concurring with Sarkaria, J., stated the result of search and research on the question in paragraph 32 of the judgment as follows :- "Let me now state the result of the search and research. 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o not think that all acts towards committing a misdemeanour are indictable. Acts remotely leading towards the commission of the offence are not to be considered as attempts to commit it, but acts immediately connected with it are'. When this portion of the judgment is carefully examined, it will be seen that Baron Parke was not setting out a definition of attempt. He was merely laying down certain necessary characteristics of the crime ; * * * * "The position can perhaps be summed up thus. So soon as attempt emerged clearly as a specific crime at common law the courts were faced with the task of defining it, and this was not achieved quickly. Parke B. was concerned to make one point plain and this was that there must be an actus reus, and it must consist in some step taken to achieve the desired end. The whole series of acts from the first done after the purpose was first conceived, along the line until the ultimate end should be achieved, was available for judicial selection. The learned Baron seems to have favoured the last possible act before the achievement rejecting all earlier steps. Notwithstanding the numerous instances in which the judges since that time have cited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exemption from Customs duty. Section 17 found in Chapter V speaks about assessment of duty and it reads as follows : "17. Assessment of duty. - (1) After an importer has entered any imported goods under section 46 or an exporter has entered any export goods under section 50, the imported goods or the export goods as the case may be, or such part thereof as may be necessary may, without undue delay, be examined and tested by the proper officer. (2) After such examination and testing, the duty, if any, leviable on such goods shall, save as otherwise provided in Section 85, be assessed. (3) For the purpose of assessing duty under sub-section (2), the proper officer may require the importer, exporter or any other person to produce any contract, broker's note, policy of insurance, catalogue or other document whereby the duty leviable on the imported goods or export goods, as the case may be, can be ascertained, and to furnish any information required for such ascertainment which it is in his power to produce or furnish, and thereupon the importer, exporter or such other person shall produce such document and furnish such information. (4) Notwithstanding anything contained in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elineate in a separate sheet furnished to this Court the formalities completed up to section 50 of the Act in respect of the three shipping bills and the said details stand extracted as follows : "I. Shipping Bill No. 896, dated 23-5-1984 (3 bales) Shipping Bill assessed on 24-5-1984. Description of goods-3 bales- Handloom Degummed Silk Fabrics (100% Mulberry Raw Silk ) (Filature Reeled) Yarn used in warp and weft other than Dupion). Value- Rs. 62,630.20 Documents presented for assessment - (a) Shipping Bill in terms of Section 50(1) of Customs Act, 1962. (b) Declaration in terms of Section 50(2) of Customs Act, 1962 (Pasted on the Shipping Bill). (c) Declaration for claiming under Duty Exemption Entitlement Certificate Scheme. (d) Invoice No. MSS/263, dated 21-5-1984 for US Dollars 5793.29 C.I.F. (e) Packing List. (f) G.R. Form No. G.A. 071942. (g) Cotton Textile Export Promotion Council's Endorsement on the Shipping Bill. (h) Certificate dated 22-5-1984, on the Invoice by Central Silk Board. II. Shipping Bill No. 816 dated 22-5-1984. Shipping Bill assessed on 22-5-1984. Description of goods-18 bales-Indian Handloom Degummed Silk Fabrics (100% Spun Silk ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the negative. Obviously, there could be export, in the sense taking of the goods outside India, even without going through the formalities and satisfying the provisions of the Act and still, an attempt in such taking out of the goods would come within the mischief of contravention and prohibitions imposed by or under the Act or any other law for the time being in force and section 113(d) would be attracted. Hence, it is not possible to test as to whether what happened and what a party did in a particular case would constitute an attempt to export within the mischief of section 113(d) of the Act by adverting only to the satisfaction of the formalities under the Act. There could be an attempt to export even without going through the formalities under the Act and satisfying the provisions thereof. Section 113(d) has got two limbs. The first limb speaks about goods attempted to be exported and the second limb speaks about goods being brought within the limits of any customs area for the purpose of being exported. As stated above, the second limb has not come into play because, admittedly, the goods were not brought within the limits of the Customs area for the purpose of being expo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ards the taking of the goods out of India after all the preparations are made and which preparations may also fall within the satisfaction of the provisions and completion of the formalities under the Act, There must be an act or acts done towards the actual physical movement of the goods with an intention to take them out of India. That alone, in my view, would constitute an attempt to export the goods, that too depending on the facts and circumstances of the case. As stated above, I am not expressing any opinion with reference to the violation of any of the provisions of the Act which would involve penal consequences, since such a stand is not expressed before me by the respondent. The essential feature to be taken note of for assessing this question is as to whether the act of the person did reach a point which constituted an actus reus. This question is one of law depending upon the facts and circumstances of the case to be decided by the Court. If there is no taking of the goods out of India, there is no exportation. Hence, "attempt" must also have relevance to the taking of the goods out of India. We are not concerned with the actual completion of the exportation. We are conc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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