-MEMORIAL ON BEHALF OF APPELLANTS-

In The Honble Court of SessionsAT Bombay, Maharashtra

State of Maharashtra ____________________ Prosecutionv. Mohd. Yakub____________________Defence

WRITTEN SUBMISSIONS ON BEHALF OF THE DEFENCE

Most Respectfully Submitted to the Honble Court of Sessions

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TABLE OF CONTENTS

Table of Contents...2Index of Authorities...3List of Abbreviation................................................................................................4 Statement of Jurisdiction ..5Statement of Facts 6Statement of Issues...7Arguments Advanced...81. Whether the accused has attempted to export the silver ingots in contravention of Indian law ?1.1. Distinction between preparation and attempt2. Whether the accused should be held guilty for the charges framed by the prosecution ?2.1. Test for determining law of Attempt2.2. Position in Commonwealth CountriesPrayer ..15

INDEX OF AUTHORITIES

Indian StatutesThe Indian Penal Code, 1860The Code of Criminal Procedure, 1973

England StatueCriminal Attempt Act, 1981

Australian Statue Crimes Act, 1958

Books Referred1. Ratanlal & Dhirajlal, The Indian Penal Code,Student Edition,First Ed. 2014.2. Dr K I Vibhute ,P S A Pillais Criminal Law , Twelth Ed. 2014.3. Gaur KD, Criminal Law : Cases and Materials, Seventh Ed. 2007.4. III Sarvaria S K , The Indian Penal Code, Tenth Ed. 2008.5. Kelkar, R.V., Criminal Procedure, Fifth Ed. 2011.6. Ratanlal & Dhirajlal, The Indian Penal Code, Thirty Third Ed. 2011.

Dynamic Links1. www.lexisnexis.com2. www.supremecourtofindia.nic.in 3. www.westlawindia.com

LIST OF ABREVEATIONS

AIRAll India Report

APAndhra Pradesh

CrLJCriminal Law Journal

CrPCCode of Criminal Procedure, 1973

Guj.Gujarat

HCHigh Court

HPHimachal Pradesh

ILRIndian Law Report

IPCIndian Penal Code, 1860

LJLaw Journal

LtdLimited

Mad.Madras

MPMadhya Pradesh

Ors.Others

Punj.Punjab

Rep.Report

SCSupreme Court

SCCSupreme Court Cases

SCRSupreme Court Report

v.Versus

-MEMORIAL ON BEHALF OF DEFENCE -

-MEMORIAL ON BEHALF OF DEFENCE -

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STATEMENT OF JURISDICTION

The defence humbly submits this memorandum before this Honble Court of Sessions under Section 177 read with Section 209 of Code of Criminal Procedure, 1973. `Section 209: Commitment of case to Court of session when offences triable exclusively by it.When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall-(a)commit, after complying with the provisions of section 207 or section 208, as the case may be, the case to the Court of Session, and subject to the provisions of this Code relating to bail, remand the accused to custody until such commitment has been made;](b)subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial;(c)send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence;(d)notify the Public Prosecutor of the commitment of the case to the Court of Session.

Section 177: Ordinary place of inquiry and trial.Every offence shall ordinarily be inquired inland tried by a Court within whose local jurisdiction it was committed.

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STATEMENT OF FACTS

On receiving some information that silver would be transported in Jeep and Truck 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 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.

-MEMORIAL ON BEHALF OF DEFENCE-

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STATEMENT OF ISSUES

1. Whether the Accused has attempted to export the silver ingots in contravention of Indian law ?1.1. Distinction between preparation and attempt

2. Whether the accused should be held guilty for the charges framed by the prosecution ?2.1. Test for determining law of Attempt2.2. Position in Commonwealth Countries

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-MEMORIAL ON BEHALF OF DEFENCE-

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ARGUMENTS ADVANCED

It is humbly submitted on behalf of the Defence, that

1. Whether the Accused has attempted to export the silver ingots in contravention of Indian law ?

With reference to this issue, the counsel humbly submits before the Honble court that the Defence is not guilty for attempt to export of Silver Ingots.Preparation means things done to read something[footnoteRef:2]. The Supreme Court of India interpreted the word Preparation as the word preparation denotes not only to action or process of preparing the components to produce the compound, but also that which is prepared.[footnoteRef:3] Preparation consists in arranging or devising the means necessary for the commission of a crime. Every crime is necessarily preceded by preparation.[footnoteRef:4] To commit a crime, an offender requires various means. Preparation can be said to the process through which such means are arranged to drive them in order to achieve the ultimate aim that is the motive behind such act. Preparation consists of arranging or building things that are needed to commit the crime. For Example: [2: The Shorter Oxford English Dictionary, Vol. II, Third Edition, Clarendon Press, Oxford.] [3: Union of India & others v. Formulators Association of India, 2002 8 SCC 410] [4: Dr. V. Krishnamachari, Law of Evidence, Fifth Edition, Reprinted 2004, S.Gogia & Company, Hyderabad.]

(1). Purchasing of Poison. However, it is possible for the person to abandon his course of action at this stage without causing any harm to anyone. In general, preparation is not considered a crime because it cannot be proved beyond doubt the goal of the preparation[footnoteRef:5]. [5: Malkiat Singh v. State of Punjab, AIR 1970 SC 713]

(2). Purchasing knife with an intention to kill someone is not a crime because it cannot be determined whether the knife was bought to kill someone or to chop vegetables.The word Attempt, clearly conveys with it the idea that if the attempt had succeeded, the offence charged would have been committed. In other words, attempt is the direct movement towards the commission of an offence after the preparation has been made. According to English law, a person may be guilty of an attempt to commit an offence, if he does an act which is more than merely preparatory to the commission of the offence[footnoteRef:6].Once an act enters into the arena of attempt, criminal liability begins, because attempt takes the offender very close to the successful completion of crime and so it is punishable in the law like the completed offence. [6: Gaur K.D. , Indian Penal Code Chap.XXIII p. 842]

In Mohan Lal v. Emperor[footnoteRef:7] the accused was charged with cheating for importing goods in Karachi port without paying the proper custom duty. Evidence was adduced of previous visit of the accused to the port of Okha, where it was said he tried to make some arrangements with the customs whereby he could import other goods without payment of proper duty. The vidence was held to be admissible as they were the preparation being made out by the accused in order to do the wrongful act. [7: AIR 1937 Sind 293.]

In Appu v. State[footnoteRef:8] there was a burglary. The four accused conducted a meeting to make arrangements of the crime. A bar of iron and pair of pincers were necessary and these were brought by the accused. These facts were admitted as they showed preparation on the part of the accused. The preparation manifested clearly that an intention to commit the offence of burglary was framed and that intention prevailed in the minds of the accused until they were grabbing any opportunity to put the preparation into the execution. [8: AIR 1971 Mad 194.]

In the instant case same situation is evidently seen as conduct of Mr. Yakub amounted to mere preparatory stage and didnt act in furtherance of the offence.An attempt creates alarm which of itself is an injury, and the moral guilt of the offender is the same as though he had succeeded. The act may be sufficiently harmful to society by reason of its close proximity to the completed offence classed as a crime. Hence, unlike civil law, criminal law takes notice of attempts to commit punishable wrongs and punishes them according to the nature and gravity of the offence attempted[footnoteRef:9]. [9: Kenny, C.S, Outlines of criminal Law Chap.V , p. 843]

In the instant case the Mr. Yakub is still at the preparation stage and though preparation is not punishable so he is not guilty for the Attempt to export of Silver Ingots.1.1 Distinction between preparation and attemptThere is a very fine line between preparation and attempt. While, IPC does not define either of them, it is very important to distinguish between them because attempt is a crime but preparation is not[footnoteRef:10]. Both, Preparation and Attempt are physical manifestations of the criminal intention. But attempt goes a lot further than preparation towards the actual happening of crime. While in Preparation, there is a possibility that the person may abandon his plan, but attempt leaves no room for that. For example: Keeping a pistol in pocket and looking for the enemy to kill is a preparation because one can abandon the plan anytime, but taking out the piston and pulling the trigger is attempt because it leaves no room for turning back.. Thus, in general, Preparation involves collecting material, resources, and planning for committing an act while attempt signifies a direct movement towards commission after the preparations are made. Ordinarily, to constitute an attempt the following elements are needed: [10: Malkiat Singh v. State of Punjab AIR 1970 SC 713]

1. Mens rea to commit the crime.2. An act which constitutes the actus reus of a criminal attempt.3. Failure in accomplishment.R v. Cheesman 1862, Lord Blackburn says that if the actual transaction has commenced which would have ended in the crime if not interrupted, there is clearly an attempt to commit the crime. Acts Remotely leading towards the commission of an offence are not attempt[footnoteRef:11]. [11: R v. Eagleton 1855 UK]

As the counsel for the defence submits from the above mentioned submission that the act of Mohd. Yakub was merely at a preparatory stage as there was no actus reas being present fin furtherance of the offence so he is not guilty for the offence of Attempt to Export.

The Second issue impugned here is:

2. Whether the accused should be held guilty for the charges framed by the prosecution ?

With reference to this issue the counsel would most humbly submit before thee Honble court that2.1 Test for determining law of Attempt2.1.1 Last Step Test or Proximity RuleAs per this test, anything short of last step is preparation and not attempt. This is because as long as there is a step remaining for completion of the crime, the person can abandon it. Thus determination of the proximity rule as perceived by Chinnappa Reddy J, realtes with the proximity of state of mind or intention of the doer with the intended crime[footnoteRef:12]. For example, A obtains poison to kill B and mixes it with food that B is supposed to eat. But he has not yet given the food to B. Thus, it is still preparation. As soon as he keeps the food on the table from where B eats every day, the last step is done and it becomes an attempt. In R v. Riyasat Ali[footnoteRef:13] the accused gave orders to print forms that looked like they were from Bengal Coal Company. He proofread the samples two times and gave orders for correction as well so that they would appear exactly as forms of the said company. At this time he was arrested for attempt to make false document under Sec. 464 of IPC. However, it was held that it was not an attempt because the name of the company and the seal were not put on the forms and until that was done, the forgery would not be complete. [12: Dr K I Vibhute ,P S A Pillais Criminal Law , Twelth Ed. 2014, Ch.15, p.189] [13: 1881 ILR 7 Cal. 352]

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 to 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.[footnoteRef:14] [14: Abhayanand Mishra v. State of Bihar AIR 1961 SC 1698]

2.1.2 Doctrine in Locus PoenitentiaeThe doctrine of locus poenitentiae refers to the possibility of a person who, having made preparations to commit an offence actually backs out of committing it, owing to a change of heart or out of any other type of compulsion. The test for determining whether the act of the appellants constituted an attempt or preparation is whether an overt act 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[footnoteRef:15]. [15: Supra note 9]

In the instant case, this test would be applied as the preparation or overt acts already done would not be of any value if Mr. Yakub changes his mind as time is left with him. Sir James Stephen, defines an Attempt as 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[footnoteRef:16]." [16: Digest of Criminal Law, Art. 50,]

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[footnoteRef:17]. [17: Supra note 9]

In order to constitute an "attempt" : (1).There must be an intention to commit a particular offence. (2). 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. 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. The following facts of the instant case reflect that there was no offence committed in the instant case. The act was at mere Preparatory stage. Assumption made by the custom officials on hearing the sound of Sea creek that Silver Ingots are bought for the purpose of Export but to transported in the course of inter-coastal trade. The offence of Attempt is committed only when the Silver Ingots are loaded in Sea Craft but not when they were unloaded from the Truck. As the time for repundance from the execution of the act was left with with Mr. Yakub. The offence of Smuggling of Silver Ingots will be completed only when the it move out from the territory of India.2.2 Position in Commonwealth CountriesAs in England Sec. 1(1) of Criminal Attempt Act 1981 reads :- If, with intent to commit an offence to which this section applies, a person does an act which is more than merely preparatory to the commission of the offence, he is guilty of attempting to commit the offence.As in Australia Sec. 32 in Crimes Act 1958 reads:- (1) A person is not guilty of attempting to commit anoffenceunless theconductof the person is (a) More than merely preparatory to the commission of theoffence; and (b) Immediately and not remotely connected with the commission of theoffence.As these sections also defines that mere preparatory stage to commit offence does not amount to attempt as there should be some act in furtherance of the act.But the position in India where Sec. 511of IPC reads:-Whoever attempts to commit an offence punishable by this code with imprisonment for life or imprisonment, or to cause such an offence to be committed and in such attempt does any act towards the commission of the offence, shall where ino express provision is by this court for the punishment of such attempt, be punished with imprisonment of any description for the offence for a term which may extend to one-half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offence, or with such fine as provided for that offence, or with both.

This section of IPC provides the commission of an offence and the attempt to commit it are dealt within the same Sec. and the extend of punishment prescribed is same for both in India[footnoteRef:18] as against the separate statute being there for attempt in England and Australia where the position is a settled one. [18: Dr K I Vibhute ,P S A Pillais Criminal Law , Twelth Ed. 2014, Ch. 15 p.183.]

In India, the SC has in different cases applied different test as proximity, in the instant case and locus poenitentiae[footnoteRef:19]. [19: Supra note 9]

PRAYER

Wherefore in the light of arguments advanced and authorities cited, the Appellants humbly submits that the Honble Court may be pleased to adjudge that andTO HOLD

1. The Accused is not guilty for the offence of attempt of exporting silver ingots in contravention of Indian Law 2. The Accused is not guilty for the charges framed by the prosecution.

MISCELLANEOUS

1. Any other order as it deems fit in the interest of justice, equity and good conscience.

For This Act of Kindness, the Defence Shall Duty Bound Forever Pray.

Sd/-(Counsel for the Defence)6 | Page

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