YUSUF ABDULLA PATEL Vs. R.N. SHUKLA

JUDGEMENT

(1.) THIS is a petition under Article 226 of the Constitution for the issue of a writ of certiorari quashing and setting aside an order passed by respondent No. 1 on June 29, 1958 confiscating 75 bars of silver of the value of nearly Rs. 12 lakhs belonging to the petitioner and lying at the godown of a transport company named M/s Reliable Roadways in Bombay under Section 118 (d) of the Customs Act, 1962, and imposing a personal penalty of rupees twenty lakhs on the petitioner under Section 114 of the said Act, and for a writ of mandamus against the respondents directing them to withdraw, cancel or set aside the said order dated June 29, 1968 and to forbear from enforcing the same.

(2.) THE facts of the case are that, in consequence of information received by them, the customs authorities seized on December 28, 1967, 120 bars of silver from a motor lorry bearing No. MRS 5188 at a place near Bassein which, according to them, had earlier been seen being loaded in the said lorry from the godown of the said M/s Reliable Roadways. On the next day, i.e. on December 29, 1967, the customs authorities, therefore, raided the godown of M/s Reliable Roadways in Bombay and seized the 75 bars of silver which are the subject -matter of the present proceedings. It may be mentioned that the Court is not concerned, in these proceedings, with the 120 bars of silver which had been seized on December 28, 1967. The said M/s Reliable Roadways having furnished the name of the petitioner as the owner of the said 75 bars of silver, and having produced the bills in respect of the same which were seized from them by the customs authorities, a show cause notice dated April 11,1968 was served by the customs authorities on the petitioner as well as on the said M/s Reliable Roadways, its partners and its accountant. In the said show cause notice it was alleged that the said 75 bars of silver were intended to be illegally exported out of India. After the seizure of the 75 bars of silver, the customs authorities recorded the statement of the petitioner under Section 118 of the Customs Act, 1962, as well as the statements of several other persons, from which it appeared that the said 75 bars of silver had been purchased by the petitioner on or about December 25, 1967 from the firm of M/s. J. Pitambardas in Bombay. It further appeared that the said bars had then been brought to the godown of the petitioner, and from there, they were sent by the petitioner on December 28, 1967 to the godown of the said M/s Reliable Roadways at Nagdevi Cross Lane in Bombay, who were transport contractors and who were requested to store the said silver bars pending further instructions from the petitioner. It is the case of the petitioner in para. 2 of the petition that he wanted to dispose of the said 75 silver bars either at Bombay or at any upcountry town where he could get a better price for them. It may, at this stage, be stated that it is not disputed by the petitioner, who is a dealer in yarn, that it was not a part of his business to deal in silver and that the only occasion on which he had dealt in silver previously was a day or two prior to the purchase of the said 75 bars by him. Correspondence took place between the petitioner and the customs authorities between April 24, 1968 and June 24, 1968 to which it is unnecessary to refer. On June 25, 1968, a personal hearing was given to the petitioner by respondent No. 1 at which, as stated in para. 7 of the petition, the petitioner's advocate requested respondent No. l that the case relating to the seizure of the 120 bars of silver should be separated from the case relating to the seizure of the said 75 bars of silver. It is stated in para. 9 of the affidavit in reply filed on this petition that that request was granted by respondent No, 1 and the two cases were thereafter separated. It may, however, be mentioned that in the case relating to the said 120 bars, respondent No. l ultimately held that there was no evidence to connect the petitioner with them. Further correspondence took place between the petitioner and the customs authorities to which also it is unnecessary to refer, the purport of the same being set out in para. 9 of the petition. A further hearing was granted to the petitioner by respondent No. 1 on June 29, 1968 on which date respondent No. 1, after hearing the parties, made the impugned order of confiscation and personal penalty which has already been set out above.

(3.) MR . Sorabjee for the petitioner has formulated the petitioner's challenge to the impugned order of respondent No. 1 dated June 29, 1968 in the form of three propositions which are as follows : I. In law, there has been no 'attempt' to export the goods, and in so far as respondent No. 1 has held that there was an attempt to export the 75 bars of silver, there is an error of law apparent on the face of the record ; II. There has been a violation of the principles of natural justice in so far as it is settled law that proceedings before customs authorities relating to confiscation and penalty are quasi -judicial proceedings, and the party concerned has a right of cross -examination of the witnesses examined in the course of those proceedings; III. There is no evidence at all in support of the conclusion that there has been an attempt to export the 75 bars of silver, and the finding of respondent No. 1 to that effect is based on surmise, suspicion and guess -work. As the facts necessary for the purpose of the decision of this case are not in dispute, but what is in dispute is the conclusion drawn from them by respondent No. 1, Mr. Sorabjee, very fairly, did not press the second of the above three grounds. Mr. Sorabjee also conceded that the third ground formulated by him as stated above is not an independent ground, but is really a part of the first ground, and the question that arises for my determination, therefore, is really only that which is embodied in the first ground. To put that question in the language of the law as laid down by the Supreme Court in various decisions, is the conclusion at which respondent No. 1 has arrived, viz. that there was an attempt to export the said 75 bars of silver by the petitioner, so manifestly erroneous that no reasonable person or reasonable judicial mind or legal mind could possibly have come to the conclusion to which respondent No. 1 came 1 It is also well -settled that, if the error of law complained of is an error of that nature and is apparent on the face of the record, the Court can interfere with the decision of the tribunal concerned, in the exercise of its supervisory jurisdiction under Article 226 of the Constitution. These propositions are too well -established by now to need authority. Before I proceed to deal with the question as to whether the conclusion at which respondent No. l arrived, viz., that the petitioner had attempted to export the said 75 bars of silver, is one at which no reasonable person could possibly arrive, it will be necessary for me to consider what is the legal connotation of the term 'attempt' in regard to which there has been serious controversy before me between the parties to the present petition. It may be mentioned that the expression 'attempt' or 'attempted to be exported' has not been defined in the Customs Act, 1962, itself. In so far as proceedings for confiscation are proceedings of a penal nature, it would not be inappropriate to draw on the meaning of the word 'attempt' as interpreted by judicial decisions under the Indian Penal Code. Section 511 of that Code enacts that an attempt to commit an offence punishable by the said Code with imprisonment, or to cause such an offence to be committed, is punishable in the manner laid down therein. Curiously enough, however, the Indian Penal Code also does not give a statutory definition of the term 'attempt' which, therefore, has been the subject of interpretation in a large number of decisions of various Courts. There is, however, one classic definition of the term 'attempt' which was given by Sir Lawrence Jenkins in his charge to the jury in the case of Queen -Empress v. Luxman (1890) 2 Bom. L.R. 286 which has stood the test of time and which, in my opinion, brings out the real meaning of that term. In summing up a sessions case to the jury, Sir Lawrence Jenkins stated as follows (p. 296) :.Now, gentlemen, I come to the question of what constitutes an attempt, as it will be for you to say whether in this case there has been an attempt or not. An attempt is an intentional preparatory action which fails in object -which so fails through circumstances independent of the person who seeks its accomplishment. It is, therefore, obvious that you must determine what was the accused's intention. Mr. Sorabjee has, in the course of his arguments before me, relied upon an un -reported decision of the Supreme Court in Malhiat Singh v. The State of Punjab 2 (1968) Criminal Appeal No. 186 of 1966, from Punjab, decided on November 8, 1968 (Supreme Court) in which the offence charged was of attempting to export paddy outside the State of Punjab in contravention of an order promulgated by the Central Government under Section 8 of the Essential Commodities Act, 1955. The truck carrying the offending goods was actually stopped and seized before it crossed the border between Punjab and Delhi, and it was sought to be contended on behalf of the State of Punjab that there was an attempt on the part of the appellant to transport paddy to Delhi and, therefore, there was an attempt to commit the offence of export of the goods in question, Ramaswami J., delivering the judgment of the Supreme Court, stated that there was no substance in that argument, and that what had happened was merely a preparation to commit the offence in question. He then stated in the judgment that preparation consisted of devising or arranging the means or measures necessary for the commission of the offence, whereas an attempt to commit the offence was a direct movement towards the commission after preparations were made, and the acts done by the accused must be sufficiently proximate to the crime to amount to an attempt to commit it. Ramaswami J. then quoted, with approval, a passage from Sir James Stephen's Digest of Criminal Law (Art. 50) in which it is stated that 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' is an attempt to commit that offence. It is further stated by Sir James Stephen in the said Article that the point at which such a series of acts begins cannot be defined, but depends upon the circumstances of each particular case. In my opinion, the judgment of Ramaswami J., read as a whole, in which, as already stated above, the definition of the word 'attempt' given by Sir James Stephen is quoted with approval and adopted, lays down nothing different from the classic definition of that term given by Sir Lawrence Jenkins in the ancient case of Queen -Empress v. Lumman cited above. Mr. Bhabha has, however, relied strongly upon another decision of the Supreme Court which, according to him, lays down a different definition of the expression 'attempt' from that which was laid down by Ramaswami J. in the unreported decision which has just been discussed by me, and that is the decision in the case of Abhayanand v. State of Bihar : 1961CriLJ822 in which the facts were that the appellant applied to the Patna University for permission to appear at the M.A. Examination as a private candidate representing that he was a graduate and. that he had the necessary teaching experience, and in support of that application, he attached certain certificates. After he had complied with certain other formalities, the University authorities despatched the admission -card which would entitle him to appear at the said Examination, to the head -master of the school concerned. On further inquiry, however, the University authorities found the certificates to be false, as a result of which the admission -card was withheld and the appellant was prosecuted under Section 420 read with Section 511 of the Indian Penal Code. The appellant was convicted by the trial Court, and his appeal to the High Court from that conviction was dismissed. The Supreme Court confirmed that conviction and dismissed his appeal from that order, holding that the appellant was guilty of the offence of attempting to cheat the University. One of the contentions raised before the Supreme Court was that the facts proved did not go beyond the stage of preparation and did not make out the offence of attempting to cheat the University, but amounted merely to the accused making preparations to cheat the University. In regard to that, the Supreme Court observed (para. 12) that the question whether a certain act amounts to an attempt to commit a particular offence is a question of fact dependent on the nature of the offence and the steps necessary to take in order to commit it, and that no exhaustive precise definition of what would amount to an attempt to commit an offence was possible. After quoting with approval the decision and the reasons given for it by the learned Judges constituting the Division Bench of the Allahabad High Court in the case reported in In the matter of the petition of R. MacCrea I.L.R. (1893) All. 173 Raghubar Dayal J. formulated the views of the Supreme Court on the point (para. 26) in the following terms : (26). We may summarise our views about the construction of Section 511, I.P.C. thus : 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 the case reported in In the matter of the petition of R. MacCrea, Knox J., who was one of the members of the Division Bench, observed (at pp. 179 -180) that the first act after preparations are complete would, if criminal in itself, be equally an attempt with the ninety -ninth act in that series of acts, and that an attempt once begun, and a criminal act done in pursuance of it towards the commission of the act attempted, does not cease to be a criminal attempt because the person committing the offence does or may 'repent' and 'abstains from completing the attempt'. Relying on those observations, and on the approval of the decision and the reasons given for it by the learned Judges in the said case, by the Supreme Court in Abhyanand's case, Mr. Bhabha sought to contend, (1) that an act would be an attempt even though the completion of the crime could have been prevented by the voluntary act of the accused himself; and (2) that the act which constitutes the attempt need not be the penultimate act towards the commission of that offence. Whilst there can be no doubt that the Supreme Court has, in terms, held in Abhyanand's case that the act which constitutes the attempt need not be the penultimate act towards the commission of the offence itself, the evidence in the case must show unequivocally that that act was such as to amount to 'a direct movement towards the commission of the offence' in question, as stated by Ramaswami J. in his judgment in the case of Malhiat Singh v. The State of Punjab cited above; or 'an act towards its commission,' as stated by Raghubar Dayal J. in Abhayanand's case also cited above. Proximity to the crime to which Ramaswami J. refers in the former case would be one of the facts which would show that the act in question was directed towards the commission of the crime. I do not, however, accept Mr. Bhabba's contention that the act of a person would be an attempt even though the completion of the offence could have been prevented by the voluntary act of that person himself. That is not what the Supreme Court has said in the final formulation of its views in para. 26 of the judgment in Abhayanand's case quoted above. Mr. Bhabha sought to make good this point by reference to the observations of Knox J., in In the matter of the petition of B. MacCrea at pp. 179 -180 referred to above, but merely because the Supreme Court has in Abhayanand's case approved of the decision and the reasons given for it by the learned Judges in that case, I am not prepared to take the view that the decision in Abhyanand's case must be read as if every single word or observation in the judgments in the Allahabad case had been incorporated therein. In my opinion, the formulation of the definition of the term 'attempt' by Raghubar Dayal J. in para. 26 of his judgment in Abhayanand's case does not lay down anything different from the classic definition of Sir Lawrence Jenkins in the case of Queen -Empress v. Luxman, or of Sir James Stephen which was adopted by the Supreme Court in the case of Malhiat Singh v. The State of Punjab, to both of which I have already referred. The result of the authorities discussed above is that an accused person commits the offence of 'attempt' to commit a crime when, with the intention of committing that crime, he does an act or acts which constitute a direct movement towards its commission but the actual commission of the crime is frustrated by reason of the fact that it is interrupted by circumstances independent of his volition. Such act need not, however, be the penultimate act towards the commission of the crime.