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PETITIONER: STATE OF MAHARASHTRA

       Vs.

RESPONDENT: MOHD. YAKUB S/O ABDUL HAMID & ORS.

DATE OF JUDGMENT04/03/1980

BENCH: SARKARIA, RANJIT SINGH BENCH: SARKARIA, RANJIT SINGH REDDY, O. CHINNAPPA (J)

CITATION:  1980 AIR 1111            1980 SCR  (2)1158  1980 SCC  (3)  57

ACT:      Penal   Code-Attempt    to   commit   an   offence-What constitutes-"Preparation" and "attempt" distinction.

HEADNOTE:      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 Customs Act, 1962.      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

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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]      4(a) 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  v. State  of Bihar,  [1962] 2 S.C.R. 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

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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 v.  Eagleton [1854]  Dears  C.C.  515;  Gardner  v. Akeroyd [1953] 2 All ER 306; Davey v. Lee [1968] 1 Q.B. 366; Haughten v.  Smith [1975]  A.C. 476, 492; Director of Public Prosecutions v.  Stonehouse [1977]  2 All E.R. 909, referred to.      Abhavanand Mishra  v. The  State of  Bihar [1962] 2 SCR 241 @ 253, applied.      Malkiat Singh  & Anr.  v. State  of Punjab [1969] 2 SCR 663 @ 667, distinguished.

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: 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 Customs Act, 1962. The first charge was the violation of sections 12(1),  23(1) and  23 (d)  of the  Foreign Exchange Regulation Act,  1947, the  second was  violation of Exports (Council) Order  No. 1  of 1968  E.T.C. dated March 8, 1968; and the  third was  the contravention  of the  provisions of Sections 7, 8, 33 and 34 of the Customs Act, 1962. They were also charged  for violation  of the  Exports (Control) Order No. 1/68  E.T.C. 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

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1161 Act. The  gist of  the  charges  was  that  the  respondents attempted to smuggle out of India 43 silver ingots, weighing 1312.410 kgs.,  worth about Rs. 8 lakhs, in violation of the Foreign Exchange  Regulation  Act,  the  Imports  &  Exports (Control) Act, 1947, and the Customs Act.      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  s/o  Sayyad Ibrahim residing at Kamathipura. From the personal search of respondent 1,  a pistol,  knife and  currency notes  of  Rs. 2,133/- 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 Customs Act 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.  2,000  and,  in

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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  Customs  Act,  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.

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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 v.  State of Bihar(1) 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

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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 135(a)  of the Customs Act, 1962 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. 2,000  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. v. Eagleton,(1) 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

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Courts, though  with occasional but audible murmur about the difficulty in  determining whether  an act  is immediate  or remote. Vide  Lord Goddard  C.J. in  Gardner v. Akeroyed.(2) "....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.  v.  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 C.J.  in Davey  v.  Lee(1)  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  [1934] 5  Cambridge Law Journal 230, and this was substantially reproduced  in Archbald’s  Criminal  Pleading, Evidence and  Practice (36th  Edn.). Archbald’s reproduction was quoted  with approval  in Davey  v. Lee(1)  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 v. Lee (supra) that Prof. Turner  was himself  not satisfied with the definition propounded by him and felt compelled to

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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 reus".(1) 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  v. Smith,(2) Hailsham L. C. quoted Parke B from the  Eagleton case  (supra) and  Lord Parker, C.J. from Davey  v.   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.  v. Eagleton, as being ’proximate’      to the completion of the offence in 1169      Davey  v.   Lee  [1968]  1  Q.B.  366,  370,  as  being      ’immediately and  not merely  remotely connected’  with      the completed offence...... "      In Director  of Public  Prosecutions v.  Stonehouse,(1) 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 (e.g. 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 v. The State of Bihar,(2) 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

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    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 v. State of Punjab,(3) 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,

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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. P.B.R.                                       Appeal allowed. 1172