N Criminal Appeal No 335 of 1974
Appeal by special leave from the Judgment and Order dated 1 11 1973 of the Bombay High Court in Criminal Appeal No 113 of 1972
O P Rana and M N Shroff for the Appellant
V N Ganpule and V B Joshi for the Respondents
The following Judgments were delivered SARKARIA J
This appeal by special leave preferred by the State of Maharashtra is directed against a judgment dated November 1 1973 of the Bombay High Court
Mohd Yakub respondent 1 Shaikh Jamadar Mithubhai respondent 2 and Issak Hasanali Shaikh respondent 3 were tried in the court of the Judicial Magistrate First Class Bassein Bombay in respect of three sets of offences punishable under section 135 read with section 135 2 of the 
The first charge was the violation of sections 121 231 and 23 d of the Foreign Exchange Regulation Act 1947 the second was violation of Exports Council Order No 1 of 1968 ETC dated March 8 1968 and the third was the contravention of the provisions of Sections 7 8 33 and 34 of the 
They were also charged for violation of the Exports Control Order No 168 ETC dated March 8 1968 issued under sections 3 and 4 of the Imports and Exports Control Act 1947 punishable under section 5 of the said 1161 Act
The gist of the charges was that the respondents attempted to smuggle out of India 43 silver ingots weighing 1312410 kgs worth about Rs 8 lakhs in violation of the Foreign Exchange Regulation Act the Imports  Exports Control Act 1947 and the 
The facts of the case were as follows On receiving some secret information that silver would be transported in Jeep No MRC 9930 and Truck No BMS 796 from Bombay to a coastal place near Bassein Shri Wagh Superintendent of Central Excise along with Inspector Dharap and the staff proceeded in two vehicles to keep a watch on the night of September 14 1968 at Shirsat Naka on the National Highway No 8 Bombay City
At about mid night the aforesaid jeep was seen coming from Bombay followed by a truck
These two vehicles were proceeding towards Bassein
The officers followed the truck and the jeep which after travelling some distance from Shirsat Naka came to a fork in the road and thereafter instead of taking the road leading to Bassein proceeded on the new National Highway leading to Kaman village and Ghodbunder Creek
Ultimately the jeep and truck halted near a bridge at Kaman creek whereafter the accused removed some small and heavy bundles from the truck and placed them aside on the ground
The Customs Officers rushed to the spot and accosted the persons present there
At the same time the sound of the engine of a mechanised sea craft from the side of the creek was heard by the officers
The officers surrounded the vehicles and found four silver ingots near the footpath leading to the creek
Respondent 1 was the driver and the sole occupant of the jeep while the other two respondents were the driver and cleaner of the truck
The officers sent for Kana and Sathe both residents of Bassein
In their presence respondent 1 was questioned about his identity
He falsely gave his name and address as Mohamad Yusuf so Sayyad Ibrahim residing at Kamathipura
From the personal search of respondent 1 a pistol knife and currency notes of Rs 2133 were found
Fifteen silver ingots concealed in a shawl were found in the rear side of the jeep and twenty four silver ingots were found lying under saw dust bags in the truck
The truck and the jeep together with the accused respondents and the silver ingots were taken to Shirsat Naka where a detailed panchanama was drawn up
Respondent 1 had no licence for keeping a pistol
Consequently the matter was reported to Police Station Bassein for prosecuting the respondent under the Arms Act
1162 The respondents and the vehicles and the silver ingots were taken to Bombay on September 15 1968
The statements of the respondents under section 108 of the were recorded by Shri Wagh Superintendent of Central Excise
The Collector Central Excise by his order dated May 28 1969 confiscated the silver ingots
After obtaining the requisite sanction the Assistant Collector Central Excise made a complaint against all the three accused in the court of the Judicial Magistrate Bassein for trial in respect of the aforesaid offences
The plea of the accused was of plain denial of the prosecution case
They stated that they were not aware of the alleged silver and that they had just been employed for carrying the jeep and the truck to another destination
They alleged that they were driven to the creek by the police
The trial Magistrate convicted the accused of the aforesaid offences and sentenced accused 1 to two years  rigorous imprisonment and a fine of Rs 2000 and in default to suffer further six months  rigorous imprisonment
Accused 2 and 3 were to suffer six months  rigorous imprisonment and to pay a fine of Rs 500 and in default to suffer two months  rigorous imprisonment
The accused preferred three appeals in the court of the Additional Sessions Judge Thana who by his common judgment dated September 30 1973 allowed the appeals and acquitted them 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
In his view until silver was put in the boat for the purpose of taking out of the country with intent to export it the matter would be merely in the stage of preparation  falling short of an attempt  to export it
Since preparation  to commit the offence of exporting silver was not punishable under the  he acquitted the accused
Against this acquittal the State of Maharashtra carried an appeal to the High Court which by its judgment dated November 1 1973 dismissed the appeal and upheld the acquittal of the accused respondents
Hence this appeal
1163 In the instant case the trial court and the Sessions Judge con currently held that the following circumstances had been established by the prosecution a The officers Shri Wagh and party had received definite information that silver would be carried in a truck and a jeep from Bombay to Bassein for exporting from the country and for this purpose they kept a watch at Shirsat Naka and then followed the jeep and the truck at some distance
b Accused 1 was driving the jeep while accused 2 was driving the truck and accused 3 was cleaner on it
c Fifteen silver ingots were found concealed in the jeep and 24 silver ingots were found hidden in the truck
d The jeep and the truck were parked near the Kaman creek from where they could be easily loaded in some sea craft
e Four silver ingots from the vehicle had been actually unloaded and were found lying by the side of the road near the foot path leading to the sea
f On being questioned accused 1 gave his false name and address
g The accused were not dealers in silver
The trial Magistrate further held that just when the officers surrounded these vehicles and caught the accused the sound of the engine of a mechanised vessel was heard from the creek
The first appellate court did not discount this fact but held that this circumstance did not have any probative value
The question therefore is whether from the facts and circumstances enumerated above it could be inferred beyond reasonable doubt that the respondents had attempted to export the silver in contravention of law from India  At the outset it may be noted that the Evidence Act does not insist on absolute proof for the simple reason that perfect proof in this imperfect world is seldom to be found
That is why under Section 3 of the Evidence Act a fact is said to be proved  when after considering the matters before it the Court either believes it to exist or considers its existence so probable that a prudent man ought under the circumstances of the particular case to act upon the supposition 1164 that it exists
This definition of proved  does not draw any distinction between circumstantial and other evidence
Thus if the circumstances listed above establish such a high decree of probability that a prudent man ought to act on the supposition that the appellant was attempting to export silver from India in contravention of the law that will be sufficient proof of that fact in issue
Well then what is an attempt  Kenny in his Outlines of Criminal Law  defined attempt to commit a crime as the last proximate act which a person does towards the commission of an offence the consummation of the offence being hindered by circumstances beyond his control
 This definition is too narrow
What constitutes an attempt is a mixed question of law and fact depending largely on the circumstances of the particular case
Attempt defies a precise and exact definition
Broadly speaking all crimes which consist of the commission of affirmative acts are preceded by some covert or overt conduct which may be divided into three stages
The first stage exists when the culprit first entertains the idea or intention to commit an offence
In the second stage he makes preparations to commit it
The third stage is reached when the culprit takes deliberate overt steps to commit the offence
Such overt act or 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 proximate to the consummation of the offence
As pointed out in Abhayanand Mishra vs State of Bihar1 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
Now let us apply the above principles to the facts of the case in hand
The intention of the accused to export the silver from India by sea was clear from the circumstances enumerated above
They were taking the silver ingots concealed in the two vehicles under cover of darkness
They had reached close to the sea shore and had started unloading the silver there near a creek from which the sound of the engine of a sea craft was also heard
Beyond the stage of preparation most of the steps necessary in the course of export by 1165 sea had been taken
The only step that remained to be taken towards the export of the silver was to load it on a sea craft for moving out of the territorial waters of India
But for the intervention of the officers of law the unlawful export of silver would have been consummated
The calendestine disappearance of the sea craft when the officers intercepted and rounded up the vehicles and the accused at the creek reinforces the inference that the accused had deliberately attempted to export silver by sea in contravention of law
It is important to bear in mind that the penal provisions with which we are concerned have been enacted to suppress the evil of smuggling precious metal out of India
Smuggling is an antisocial activity which adversely affects the public revenues the earning of foreign exchange the financial stability and the economy of the country
A narrow interpretation of the word attempt therefore in these penal provisions which will impair their efficacy as instruments for combating this baneful activity has to be eschewed
These provisions should be construed in a manner which would suppress the mischief promote their object prevent their subtle evasion and foil their artful circumvention
Thus construed the expression attempt within the meaning of these penal provisions is wide enough to take in its fold any one or series of acts committed beyond the stage of preparation in moving the contraband goods deliberately to the place of embarkation such act or acts being reasonably proximate to the completion of the unlawful export
The inference arising out of the facts and circumstances established by the prosecution unerringly pointed to the conclusion that the accused had committed the offence of attempting to export silver out of India by sea in contravention of law
For reasons aforesaid we are of opinion that 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 India
We therefore allow this appeal set aside the acquittal of the accused respondents and convict them under Section 135a of the read with Section 5 of the Imports and Exports Control Act 1947 and the Order issued thereunder and sentence them as under Accused respondent 1 Mohd Yakub is sentenced to suffer one year s rigorous imprisonment with a fine of Rs 2000 and in default to suffer six months  further rigorous imprisonment
Accused respondents 2 and 3 namely Sheikh Jamadar Mithubhai and Issak Hasanali Shaikh are each sentenced to six months  rigorous imprisonment 1166 with a fine of Rs 500 and in default to suffer two months  further rigorous imprisonment
CHINNAPPA REDDY J I concur in the conclusion of my brother Sarkaria J in whose Judgment the relevant facts have been set out with clarity and particularity
I wish to add a few paragraphs on the nature of the actus reus to be proved on a charge of an attempt to commit an offence
The question is what is the difference between preparation and perpetration An attempt to define attempt  has to be a frustrating exercise
Nonetheless a search to discover the characteristics of an attempt if not an apt definition of attempt has to be made
In England Parke B described the characteristics of an attempt  in Reg
vs Eagleton1 as follows the mere intention to commit a misdemeanor is not criminal
Some act is required and we do not think that all acts towards committing a misdemeanor indictable
Acts remotely leading towards the commission of the offence are not to be considered as attempts to commit but acts immediately connected with it are   The dictum of Parke B is considered as the locus classicus on the subject and the test of proximity  suggested by it has been accepted and applied by English Courts though with occasional but audible murmur about the difficulty in determining whether an act is immediate or remote
Vide Lord Goddard CJ in Gardner vs Akeroyed2  it is sometimes difficult to determine whether an act is immediately or remotely connected with the crime of which it is alleged to be an attempt
Parke B himself appeared to have thought that the last possible act before the achievement of the end constituted the attempt
This was indicated by him in the very case of Reg
vs Eagleton supra where he further observed     and if in this case   any further step on the part of the defendent had been necessary to obtain payment  we should have thought that the obtaining credit  would not have been sufficiently proximate to the obtaining the money
But on the statement in this case no other act on the part of the 1167 defendant would have been required
It was the last act depending on himself towards the payment of the money and therefore it ought to be considered as an attempt
As a general principle the test of the last possible act before the achievement of the end  would be entirely unacceptable
If that principle be correct a person who has cocked his gun at another and is about to pull the trigger but is prevented from doing so by the intervention of someone or something cannot be convicted of attempt to murder
Another popular formulation of what constitutes attempt  is that of Stephen in his Digest of the Criminal Law where he said An attempt to commit a crime is an act done with intent to commit that crime and forming part of a series of acts which would constitute its actual commission if it were not interrupted
The point at which such a series of acts begins cannot be defined but depends upon the circumstances of each particular case
While the first sentence is an attempt at defining attempt  the second sentence is a confession of inability to define
The attempt at definition fails precisely at the point where it should be helpful
See the observations of Parker CJ in Davey vs Lee1 and of Prof Glanville Williams in his essay on Police Control of intending criminals  in 1955 Criminal Law Review
Another attempt at definition was made by Professor Turner in  and this was substantially reproduced in Archbald s Criminal Pleading Evidence and Practice 36th Edn
Archbald s reproduction was quoted with approval in Davey vs Lee1 and was as follows    the actus reus necessary to constitute an attempt is complete if the prisoner does an act which is a step towards the commission of a specific crime which is immediately and not merely remotely connected with the commission of it and the doing of which cannot reasonably be regarded as having any other purpose than the commission of the specific crime
We must at once say that it was not noticed in Archbald s 36th Edn nor was it brought to the notice of the Divisional Court which decided Davey vs Lee supra that Prof Turner was himself not satisfied with the definition propounded by him and felt compelled to 1168 modify it as he thought that to require that the act could not reasonably be regarded as having any other purpose then the commission of the specific crime went too far and it should be sufficient to show prima facie  the offender s intention to commit the crime which he is charged with attempting
Editing 12th edition of Russell on Crime and 18th edition of Kenny s Outlines of Criminal Law Professor Turner explained his modified definition as follows It is therefore suggested that a practical test for the actus reus in attempt is that the prosecution must prove that the steps taken by the accused must have reached the point when they themselves clearly indicate that was the end towards which they were directed
In other words the steps taken must themselves be sufficient to show prima facie the offender s intention to commit the crime which he is charged with attempting
That there may be abundant other evidence to establish his mens rea such as a confession is irrelevant to the question of whether he had done enough to constitute the actus reus1 We must say here that we are unable to see any justification for excluding evidence aliunde on the question of mens rea in considering what constitutes the actus reus
That would be placing the actus reus in too narrow a pigeon hole
In Haughten vs Smith2 Hailsham L C quoted Parke B from the Eagleton case supra and Lord Parker CJ from Davey vs Lee supra and proceeded to mention three propositions as emerging from the two definitions 1 There is a distinction between the intention to commit a crime and an attempt to commit it  2 In addition to the intention or mens rea there must be an overt act of such a kind that it is intended to form and does form part of a series of acts which would constitute the actual commission of the offence if it were not interrupted 3 The act relied on as constituting the attempt must not be an act merely preparatory to commit the completed offence but must bear a relationship to the completion of the offence referred to in Reg
vs Eagleton as being proximate  to the completion of the offence in 1169 Davey vs Lee  370 as being immediately and not merely remotely connected  with the completed offence  In Director of Public Prosecutions vs Stonehouse1 Lord Diplock and Viscount Dilhorne appeared to accept the proximity  test of Parke B while Lord Edmund Davies accepted the statement of Lord Hailsham as to what were the true ingredients of a criminal attempt
Whatever test was applied it was held that the facts clearly disclosed and attempt in that case
In India while attempts to commit certain specified offences have themselves been made specific offences eg 307 308 Indian Penal Code etc an attempt to commit an offence punishable under the Penal Code generally is dealt with under section 511 Indian Penal Code
But the expression attempt  has not been defined anywhere
In Abhayanand Mishra vs The State of Bihar2 Raghubar Dayal and Subba Rao JJ disapproved of the test of last act which if uninterrupted and successful would constitute a criminal offence  and summarised their views as follows 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
In Malkiat Singh  Anr vs State of Punjab3 a truck which was carrying paddy was stopped at Samalkha 32 miles from Delhi and about 15 miles from the Delhi Punjab boundary
The question was whether the accused were attempting to export paddy from Punjab to Delhi
It was held that on the facts of the case the offence of attempt had not been committed
Ramaswamy
J observed The test for determining whether the act of the appellants constituted an attempt or preparation is whether the overt acts already done are such that if the offender changes his mind and does not proceed further in its progress the acts already done would be completely harmless
In the present case it is quite possible that the appellants may have 1170 been warned that they had no licence to carry the paddy and they may have changed their mind at any place between Samalkha barrier and the Delhi Punjab boundary and not have proceeded further in their journey
We think that the test propounded by the first sentence should be understood with reference to the facts of the case
The offence alleged to be contemplated was so far removed from completion in that case that the offender had yet ample time and opportunity to change his mind and proceed no further his earlier acts being completely harmless
That was what the Court meant and the reference to the appellants  in the sentence where the test is propounded makes it clear that the test is propounded with reference to the particular facts of the case and not as a general rule
Otherwise in every case where an accused is interrupted at the last minute from completing the offence he may always say that when he was interrupted he was about to change his mind
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 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
For instance in the instant case had the truck been stopped and searched at the very commencement of the journey or even at Shirsad Naka the discovery of silver ingots in the truck might at the worst lead to the inference that the accused had prepared or were preparing for the commission of the offence
It could be said that the accused were transporting or attempting to transport the silver somewhere but it would not necessarily suggest or indicate that the intention was to export silver
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 1171 not to be exported but only to be transported in the course of intercoastal 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
In the result I agree with the order proposed by Sarkaria J PBR Appeal allowed


Summary:
The respondents were charged with the offence of attempting to smuggle out of India 43 silver ingots in violation of the Foreign Exchange Regulation Act 1947 Imports and Exports Control Act 1947 and the 
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 mechanised sea craft from the side of the creek was heard by the Customs officials and that therefore they were guilty of attempting to smuggle silver out of India
The respondents pleaded that they were 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
The Trial Court convicted and sentenced them to various terms of imprisonment 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 made preparations for bringing the silver to the creek and had not committed any act amounting to a direct movement towards the commission of the offence and 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 contravention of the law
The High Court dismissed the State s appeal
Allowing the appeal to this Court  HELD Per Sarkaria J Chinnappa 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 India
1165F 2
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
1165E
1159 3
The definition of proved  contained in section 3 of the Evidence Act does not draw any distinction between circumstantial and other evidence
If the circumstances establish such a high degree of probability that a prudent man ought to act on the supposition that the accused was attempting to export silver from India in contravention of the law that would be sufficient proof of that fact in issue
116A B 4a What constitutes an attempt is a mixed question of law and fact depending largely on the circumstances of the particular case
Attempt defies a precise and exact definition
Brodly speaking all crimes which consist of the commission of affirmative acts are preceded by some covert or overt conduct which may be divided into three stages the first stage exists when the culprit first entertains the idea or intention to commit an offence in the second stage he makes preparations to commit it and the third stage is reached when the culprit takes deliberate overt steps to commit the offence
Such overt act or 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 proximate to the consummation of the offence
1164C E Abhayanand Mishra vs State of Bihar 1962 2 SCR 241 followed
b 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
1164E F In the instant case the respondents carried silver ingots in the two vehicles to the sea shore and started unloading them near a creek from which the sound of the engine of a sea craft was heard
In short they did all that was necessary to export the silver ingots by sea and the only step that remained was to load them on the sea craft for moving out of the territorial waters of the country
But for the intervention of the Customs officials the unlawful export would have been consummated
The disappearance of the sea craft reinforces the inference that the accused had deliberately attempted to export silver by sea in contravention of law
1164G H Chinnappa Reddy J concurring
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
1170E F In the instant case had the truck been stopped and searched at the very commencement of the journey or even on the way much before its destination the discovery of silver ingots in the truck might at the worst lead to the inference 1160 that the accused had prepared or were preparing for the commission of the offence
It could be said that the accused were transporting or attempting to transport the silver somewhere but it would not necessarily suggest or indicate that the intention was to export silver
The fact that the truck was driven up to 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
1170G H Reg vs Eagleton  Gardner vs Akeroyd  Davey vs Lee  Haughten vs Smith 1975 AC 476 492 Director of Public Prosecutions vs Stonehouse  referred to
Abhavanand Mishra vs The State of Bihar   253 applied
Malkiat Singh  Anr
vs State of Punjab  667 distinguished