JUDGMENT
Nainar Sundaram, J.
1. This Civil Miscellaneous Appeal is one preferred under Section 54 of the Foreign Exchange Regulation Act, 1973. The appellant faced three charges before the Additional Director of Enforcement. Of the three charges, we are concerned only with the first charge, which reads as follows:
that during March, 1963, the appellant, in contravention of Section 5(1)(aa) read with Section 23B of the Foreign Exchange Regulation Act, 1947, attempted to receive a sum of Rs. 40,000 from a person other than an authorised dealer in foreign exchange by order or on behalf of one Shri.R.M.T. Ramaswamy Pillai of Pe-nang, a person resident outside India.
The appellant, though he was penalised for all the three charges, yet confined his further agitation before the Foreign Exchange Regulation Board only to the first charge. The facts put against the appellant are as follows: During the course of the search of the business premises of M/s. Shanmugha Credit Corporation, Tiruchirappalli, by the Enforcement Officers, the appellant was found there; the appellant was interrogated by the said officers; and the appellant produced a foreign aerogram dated 5th March, 1968 from Shri.Ramaswamy Pillai of Selabha Estate, Perak, Malaysia, which contained instructions to receive a sum of Rs. 40,000. The translation of the relevant portion of the said letter dated 5th March 1968, as found in the order ‘the Appellate Board, reads as follows:
Shanmugham Pillai would come and deliver our money Rs. 20 and another person’s money Rs. 20 Credit them in the different names. Write to me as soon as you receive it….
On 22.3.1968, the appellant gave a statement to the Enforcement Officers to the effect Shri.Shanmugham Pillai of M/s. Shanmugha Credit Corporation was then at Malaysia; that in the place of Shri. Shanmugham Pillai, his brother Shri.Peria Thirupathy was looking after M/s.Shanmugha Credit Corporation; that the appellant came to the place in connection with the receipt of the sum of Rs. 40,000 and that Shri.Peria Thirupathy was not there, and he was brought by the Enforcement Officers subsequently.
2. Section 5(1)(aa) of the Foreign Exchange Act, 1947, cited in the first charge, is in the following terms.
5. Restrictions on payments:- (1) Save as may be provided in, and in accordance with any general or special exemption from the provisions of this Sub-section which may be granted conditionally or unconditionally by the Reserve Bank, no person in, or resident in, India shall.
(a) …
(aa) receive, otherwise than through an authorised dealer, any payment by order or on behalf of any person resident outside India.
Section 23-B of the Foreign Exchange Regulation Act, 1947, also cited in first charge, is to the following effect:
23B Attempts- Whoever attempts to contravene any of the provisions of this Act or of any rule, direction or order made thereunder shall be deemed to have contravened that provision, rule, direction or order, as the case may be.
3. What all has been put against the appellant is that he visited the premises of M/s. Shanmugha Credit Corporation, Tiruchirappalli, with a view to receive payment pursuant to the letter referred to above. The Appellate Board did not countenance the plea of the appellant that the case would not at all come within the ambit of ‘attempt’ so as to attract Section 23-B of the Foreign Exchange Regulation Act, 1947. In this view, the Appellate Board confirmed the imposition of a penalty of Rs. 5,000 done by the Additional Director of Enforcement under the first charge and dismissed the appeal. That is how this appeal has come to be preferred by the appellant to this court.
4. Before us, Mr.K.Ramagopal, learned Counsel for the appellant, would submit that mere possession of the letter and the visit of the appellant to the premises of M/s. Shanmugha Credit Corporation would not by themselves constitute ‘attempt to receive’ in contravention of Section 5(1)(aa) within the meaning of Section 23-B and even accepting the factual features put against the appellant they would only indicate a preparation and nothing more. When we take note of the ratio of the pronouncements of the highest court in the land on the question and apply the same to the facts of the case, we feel obliged to accept the submissions of the learned Counsel for the appellant. A distinction between preparation and attempt has always been kept in mind by the Court, while dealing with eases of attempt to commit offences.
5. In Abhavyanand v. Stale of Bihar, , two learned Judges of the Supreme Court approved the decision and the reasons therefore in the matter of the petition of B.Maccrea (1983) I.L.R.15 All.173 and the views of the Supreme Court were summarised in paragraph 26 of the judgment as follows:
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 Bulkiat 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 appellants nor was there an attempt to commit an offence, analysed the question and expressed its opinion in the following Jerms:
…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 revs of a criminal attempt. The sufficiency of the actus revs is a question of law which had led to difficulty because of the necessity of distinguishing between acts which are merely proparatory 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. 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 on their journey. Section 8 of the Essential Comodities 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”.
6. In State of Maharashtra v. Mohd Yakub , the Supreme Court dealt with a case of an attempt of evasion of duty within the meaning of Section 135(1)(a) of the Customs Act, 1962. That was a case of an appeal by the State of Maharashtra against an order of acquittal of the respondents by the High Court. The facts ran as follows:
At about mid-night a jeep, driven by respondent 1, and a truck stopped near a bridge at a creek and while the accused started removing some bundles from the truck and placing them aside on the ground, the customs officers, who were following them on the basis of definite information, rushed to the spot and accosted the persons present there. At the same time, the sound of the engine of a mechanized sea-craft from the side of the creek was heard by the officers. Thereafter, two residents of the area were called for and in their presence silver ingots were recovered from the two vehicles.1. Some ingots were also found near the footpath leading to the creek. From the personal search of respondent 1, a pistol, a knife and currency notes were found. On questioning he gave false name and address. It was found that the accused were not dealers in silver. The trial court convicted the accused under Section 135(1)(a) read with Section 135(2) of the Customs Act for attempting to smuggle out of India silver ingots worth about Rs. 8 lakhs in violation of the Foreign Exchange Regulations Act, the Imports and Exports (Control) Act and the Customs Act. But the Additional Sessions Judge, 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. The High Court upheld the acquittal. The acquittal was reversed by the Supreme Court.
Sarkaria,J. defined as to what would constitute an ‘attempt’ in paragraph 13 of the judgment as follows:
Well then, what is an ‘attempt’? Kanny 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’ defines a precise and exact definition. Broadly speaking, all crimes which consist of the commission of affirmative acts are preceded by some convert 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 Abhavanand Nishra v. State of Bihar there is a distinction between ‘preparation’ and ‘attempt’. Attempt begins where preparation ends. In short, if 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 in the course of committing that offence.
Chinnappa Reddy, J., concurring with Sarkaria, J., stated the result of search and research on the question in paragraph 32 of the judgment as follows:
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 certainly, in conjunction with other facts and circumstances and not neccessarily in consolation, as 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 even at Shirsat 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 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 thoughnot 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 circumstances that all this was done in a clandestine fashion, at dead of night, revealed, with reasonable certainly, the intention of the accused that the silver was to be exported. (page 66-67).
7. Coming to the facts of the present case, we have to note that apart from the receipt of the letter and the visit of the appellant to the premises of M/s. Shanmugha Credit Corporation, no overt act towards the receipt of the money as such has come to 1 ight. It has not been established that money as such had actually come from Shri Ramaswami Pillai of Malaysia into the hands of Shri Peria Tirupathy, who was stated to be there in the place of Shri Shanmugha Pillai; and that the appellant was about to receive the same and there was a detection, intervention or frustration of the same at that stage and that prevented the consummation of the offence. Money had not been shown to have had come into the hands of Shri Peria Thirupathy from Ramaswami Pillai of Malaysia. Shri Peria Thirupathy himself was not present at the time of the visit of the appellant to the place. Even as per the statement of the appellant, he had come there in connection with the receipt of the money. Nothing positive had happened towards the receipt of the money. As pointed out by the Supreme Court, the test for determining whether the act of the person 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 purposes, the acts already done would be completely harmless. If the appellant had returned from the place, having found Shri Peria Thirupathy not there, assuming the said person had, in fact, received the money from Shri Ramaswamy Pillai of Malaysia, then the bare wait would be completely harmless. What happened in the present case cannot be said to be a proximate act which the appellant could be said to have done towards the commission of the contravention. In view of the position of the law and the same getting applied to the facts of the case, we feel obliged to interfere in appeal and accordingly this appeal is allowed. There will be no order as to costs.