State of Maharashtra v. Mohd. Yakub, AIR 1980 SC 1111
Authored By- Pooja Koul
1980 AIR 1111
1980 SCR (2)1158
Name of the parties
Petitioner- State of Maharashtra
Respondent- Mohd. Yakub S/O Abdul Hamid& Ors.
Date of judgement-04/03/1980
Bench- Sarkaria, Ranjit Singh, Reddy, O. Chinnappa (J)
Keywords-Attempt, State of Maharashtra, Section 511, Smuggle, Section 80
The article on the case of Mohd. Yakub states that in India 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. This article explains the case of the State of Maharashtra v. Mohd. Yakub in detail with the judgements of the case.
Section 80 of the Indian Penal Code, 1860 states that nothing is an offence which is done by accident or misfortune, and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution.A person commits the offence of 'attempt' to commit a particular offence when (i) he intends to commit that particular offence; and (ii) he has made preparations and 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 committing that offence. Section 511 of the Indian Penal Code, 1860 defines punishment for attempting to commit offences punishable with imprisonment for life or other imprisonments.
Facts of the cases
Mohd. Yakub was 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 jeep silver ingots some of which were concealed in a shawl, and some others hidden in a saw-dust bags from Bombay to a lonely creek nearby and that when the ingots were unloaded near the creek the sound of the engines 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 on the way 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.
Issue of the case
Whether from the facts and circumstances, enumerated above, it could be inferred beyond a reasonable doubt that the respondents had attempted to export the silver in contravention of law from India?
Judgement (Ratio Decidendi)
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 about time and action but 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 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 intercoastal trade. But the circumstance that all this was done clandestinely, at dead of night, revealed, with reasonable certainty, the intention of the accused that the silver was to be exported.
Section 80 of the Indian Penal Code states that nothing is an offence which is done by accident and without any criminal intention in the doing of the lawful act lawfully by lawful means and with proper care and caution. In this case respondent 1, 2 and 3 were taking silver ingots with them in their vehicle and were not aware of that as respondent said in his defence. Section 511 of IPC states the punishment for attempting to commit offence for which mens rea is required to render a person liable for this offence. The accused has no mens rea, and the excuse negates the actus reus accountability for the act. To recognise an excuse is to judge that the particular suspect cannot be fairly held liable for the offence. Though the deed is wrong, the accused is excused from liability because conditions suggest that he is not responsible for his deed.