Customs, Excise and Gold Tribunal - Calcutta
Shri Debdas Adhikary And Dinabandhu ... vs Commissioner Of Customs (Prev.) on 19 September, 2007
Equivalent citations: 2007(123)ECC120, 2007(149)ECR120(TRI.-KOLKATA), 2008(222)ELT299(TRI-KOLKATA)
ORDER D.N. Panda, Member (J)
1. On the previous date of hearing on 17.08.2007, the ld. Counsel was specifically asked whether there was an 'attempt' to make the export successful and whether there was any "attempt" without being called as "preparation" in view of judgment of Hon'ble Supreme Court in the case of Malkiat Singh v. State of Punjab . It was also specifically questioned by the Bench whether the place where BSF found the vehicle was in the notified area under Section 7 of the Customs Act, 1962 and whether Customs Authority found that there was an 'attempt' for export. No specific answer being given appeals were ordered to be dismissed on that date. However, at the time of finalisation of the order it was noticed that neither the BSF found the vehicle at the place notified under Section 7 of the Customs Act, 1962 nor any "attempt" for export was brought to record by Customs Authority for which the matter was again refixed for hearing on the above specific issues to do justice to both sides.
2. The ld. Counsel appearing for the Appellants today argued that neither the Customs Authorities nor the BSF authorities found the goods in the Customs area notified under Section 7 of the Customs Act, 1962. So also the case was made under mere suspicion and surmise for which the appellant should not suffer. However, he fairly admitted that the place where the vehicle along with goods were found by BSF was 2 K.M away from Indo Bangladesh border as observed by the ld. Appellate Authority below, in Para-2 of the order. But his submission was that when a vehicle not found to be engaged in attempting the export of the impugned goods nor caught red handed at that stage, the case cannot be made out against the appellant. Further, finding the goods at a different place other than the notified place shall not ipso-facto bring the appellant to charge. Therefore, he submitted that his categorical answer made today may be considered and the appellant may be dealt according to law.
3. The ld. JDR submitted that even if the BSF did not find the vehicle with the goods at the notified place but Hasanabad being nearer to the notified area, the appellant cannot go away from the charge for the mischief they committed. The goods having been found near the Indo Bangladesh Border a case was made rightly by the authorities below.
4. Heard both sides and perused the record.
5.1 In the fitness of the circumstances of the case it would be proper to dispense the pre-deposit since an important question of law arises in this case for the meaning of the term "attempt" as observed by Hon'ble Supreme Court in the case of State of Maharashtra v. Mohd. Yakub and Ors. . The Hon'ble Supreme Court relying on the judgment of Abhayanand Mishra v. State of Bihar reported in (1962) 2 SCR 241 analysed the meaning of term 'attempt' in para 13 of the judgments which reads as under:
13. Well "Outlines of Criminal law" defined then, what is an "attempt"? Kenny is his "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 ides 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 an 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 v. State of Bihar , there is a distinction between 'preparation' and 'attempt'. Attempt beings 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.
Justice demands that even if no argument was made in the course of hearing nor the appellant pleads on the question of law they cannot be denied of justice when the materials in record so suggests. Accordingly, dispensing pre-deposit all the appeals are heard analogous and disposed by this common order.
5.2. The Hon'ble Supreme Court held in the aforesaid case that smuggling is an anti-social activity and that requires to be combated (sic) In para 15 of the judgment in Yakub's case (supra) the Hon'ble Court held that 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, then attempt is said to have been committed.
5.3 In Malkiat Singh v. State of Punjab , 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 measures necessary for the commission of the offence. On the other hand, an attempt to commit the offence is a direct movement towards the commission after preparations are made. In order that a person may be convicted of an attempt to commit a crime, he must be shown, first, to have had an intention to commit the offence, and secondly, to have done an act which constitutes the actus reus of a criminal attempt. The sufficiency of the actus reus is a question of law which had led to difficulty because of the necessity of distinguishing between acts which are merely preparatory to the commission of a crime, and those which are sufficiently proximate to it to amount to an attempt *o 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, Article 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 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. 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 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. Section 8 of the Essential Commodities Act states that 'any person who attempts to contravene, or abets a contravention of, any order made under Section 3 shall be deemed to have contravened that order'. But there is no provision in the Act which makes a preparation to commit an offence punishable. It follows therefore that the appellants should not have been convicted under Section 7 of the Essential Commodities Act." Pages 666-667 5.4 In Asgarali Pradhantha v. Emperor (1934) ILR 61 Cal. 54, a Bench of the High Court at Calcutta, consisting of Lord-Williams and Mcnair, JJ., chose to sum up the law in India on 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.
6. Perusal of the notification issued under Section 7 does not throw light whether Hasanabad was within the notified area to be called Customs area. Further, the record did not reveal the manner how "attempt" was made to export to become successful or failure. That was not brought to record by any evidence. Therefore, the case appears to have been made out at the premature stage that too at the stage of 'preparation' which shall not lend credence for an order detriment to the interest of justice. The Hon'ble Supreme Court has made it very clear in the aforesaid judgment that what that is not attempt shall not be termed as so when the offence likely to be committed was in the preparation stage. In the present case no evidence also reveals that even there was preparation for smuggling when the case was referred by BSF without being spotted by Customs Authority. In absence of credence and credible evidence nothing can be spelt out whether there was even any preparation to make an attempt for export when no evidence points out to the offence alleged.
7. In the result the appellants should succeed and the impugned order is set aside.
(Dictated and Pronounced in the open court)