Attempt And Preparation under Customs Act, 1962 for Exports

Attempt and Preparation are two key words which are concerned with improper export of goods and have been made punishable by two different sections viz by Section 113 and 135A of the Act. Interestingly both sections are falling under different chapters XIV and XVI. Chapter XIV deals with confiscation of goods and conveyances and imposition of penalties thereof.

Respecting import, we will not find mention of word attempt as customs law deals with ‘improper importation of imported goods’. The word imported per se, is indicative of the fact that operation of customs law starts once goods are imported. As far as Customs Act is concerned prior stage of importation is not the subject matter for operation of law. Therefore, attempt and preparation has no role in import side and these two words are only applicable in export of goods. Under the circumstances, when we enter into analysis of ‘Attempt and Preparation’, this write up is restricted to the export transaction and the concerned provisions under Customs Act 1962. Let us go through the provisions under Section 113 and 135A for having a complete understanding of core issue.

Provisions Under Section 113 of the Customs Act, 1962

Here is how Section 113 reads:

 “Section 113.Confiscation of goods attempted to be improperly exported etc. – The following export goods shall be liable to confiscation : –

(a)      any goods attempted to be exported by sea or air from any place other than a customs port or a customs airport appointed for the loading of such goods;

(b)     any goods attempted to be exported by land or inland water through any route other than a route specified in a notification issued under clause (c) of Section 7 for the export of such goods;

(c)      any goods brought near the land frontier or the coast of India or near any bay, gulf, creek or tidal river for the purpose of being exported from a place other than a land custom station or a customs port appointed for the loading of such goods;

(d)     any goods attempted to be exported or brought within the limits of any custom area for the purpose of being exported, contrary to any prohibition imposed by or under this Act or any other law for the time being in force;

The word ‘export goods’ has been defined in Section 2(19) of the Customs Act, 1962 as follows :

 S 2(19) ’export goods’ means any goods which are to be taken out of India to a place outside India”.

The language of Section 113(d) and Section 2(19) of the Customs Act convey that only those goods which are attempted to be exported are liable to confiscation.

Whereas Preparation of export falls under Chapter XVI – which deals with Offences and Prosecution, is  punishable under Section 135A of the Customs Act with maximum three year of imprisonment or fine or both.

Provisions Under Section 135A of the Customs Act, 1962

Here is how Section 135A of the Customs Act reads as:

“If a person makes preparation to export any goods in convtravention of the provisions of this Act, and from the circumstances of the case it may be reasonably inferred that if not prevented by circumstances independent of his will, he is determined to carry out his intention to commit the offence, he shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both.

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.

(i)The first stage exists when the culprit first entertains the idea or intention to commit an offence.

(ii)In the second stage, he makes preparations to commit it,

(iii) the third stage is reached when the culprit takes deliberate overt steps to commit the offence.

Such overt act or step  need not be the penultimate act towards the commission of the offence. It is sufficient if such an 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, (1962) 2 SCR 241, 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

In COMMISSIONER OF CUSTOMS, PATNA Versus RAM CHANDRA PRASAD,2016 (335) E.L.T. 548 (Tri. – Kolkata).Final Order Nos. A/75561-75563/KOL/2015, dated 11-9-2015 in Appeal Nos. C/197-199/2012 following were observed.

In the instant case, attempt  to export was defined.  As export goods pulses were improperly exported to Nepal and  goods being carried from Motihari to Manjharia, Bihar and seized with truck. Blank invoices along with one invoice consigned to Manjharia based trading firm also recovered – Truck driver stated that goods meant for export to Nepal

HELD : Since driver never transported similar goods earlier from Manjharia to Nepal, his statement that goods meant for export to  Nepal was based on hearsay . Revenue failed to rebut respondent’s argument that goods meant for distribution within India – Revenue’s contention that since goods brought within 50 kms. from Indo-Nepal Border which is specified area as per Section 114 of Customs Act, 1962, not found relevant as pulses were not notified as specified goods . It was also held that bringing pulses to Manjharia godown even if assumed same intended for Nepal, still come within domain of ‘preparation’ and not an ‘attempt’ as per decision in Mohd. Yakub [1983 (13) E.L.T. 1637 (S.C.)] – therefore it was held that confiscation and penalty not sustainable under Sections 113(d) and 114 of Customs Act, 1962.

In Malkit Singh v State of Punjab, 1969(2) SCR 663.It was held by the SC that there is a long gap between preparation and attempt-  the test for determining whether the act of the appellant constituted an attempt or preparation is, whether the overt act already done  are such that if the offender changes his mind  and does not proceed  further in its progress ,the act already done would be completely harmless. The act would not amount to attempt, as preparation falls short of attempt due to change of mind.

Perusal of the above decisions pointed that preparation is not punishable but attempt is. It is cogent that with the end of preparation, attempt begins. But this preposition is also not absolutely true when Section 135A is lays down under the Customs Act.As by the provisions of section 135A , preparation is also prosecutable and punishable. Since 135A for its application is not dependent upon 113 , but its operation is very confusing as in the case of attempt mere preparation is not punishable if the same does not culminates into act of attempt, whereas preparation per se is punishable and prosecutable. There is a very narrow distinction between the two.

What is Preparation?

Preparation Consists of devising or arranging the means or measures necessary for the commission of an offence. The  law permit a locus poenitentiae and not hold man responsible if he has not passed beyond preparatory stage.

Under the Customs Act, preparation to export which breaches the provisions of this Act is punishable when it can be reasonably inferred that the accused is determined to carry out his intended plan to commit the offence, if not prevented by circumstances. Corollary is that when there is contravention of any of the conditions of Section 113 of the Act, then only section 135A of the Act can be  invoked, subject to fulfillment of other conditions and not for the mere preparation. As the section falls under Chapter XVI, then knowledge is essential and to prove the charges requires stricter degree of evidence, as the charges are criminally triable.  Reading of the section does not clearly state that whether for its application, any goods/conveyances are liable for confiscation. No corresponding provision for the offence of preparation is available in respect of confiscation of goods and conveyances and imposition of penalties under Chapter XIV of the Customs Act, 1962.

When Section 113 is invoked, it fails when it is limited to preparation and no attempt to export the goods  can be established. But here preparation has been independently made offence under then Customs Act by the mandate of Section 135 A of the Act.

In the case of D.N. ANERAO Versus MAHESHKUMAR KANTILAL SONI AND OTHERS, ITHE HIGH COURT OF GUJARAT AT AHMEDABAD, 1986 (27) E.L.T. 32 (Guj.) Criminal Revision Application No. 640 of 1984. decided on 20-2-1985

It was held that Offence of Preparation to export silver in contravention of provisions of Customs Act, 1962 is punishable. Court to presume the existence of culpable mental state and for the accused to disprove it – ‘Culpable mental state’ includes intention, motive or fact, therefore case was remanded to the Trial Court for retrial according to law . Here Sections 135A and 138A of the Customs Act, 1962 were examined by the Court.

Under Section 135A of the Customs Act the prosecution has to establish , that person has made preparation to export any goods in contravention of the provisions of the Customs Act and further that by circumstances of the case it can reasonably be inferred that if not prevented by circumstances independent of his will, that person was determined to carry out the offence. In the instant case, the respondent/accused were found going in the direction of Saurashtra and Kutch. Silver was found from the Ambassador Car which was driven by one of the respondents. The car was piloted by the scooter driven by another respondent. They could not give any explanation much less reasonable explanation about the finding of silver from the dicky and inner portion of the car. Prima facie they were preparing to export silver out of India. Under Section 138A, the Court shall presume the existence of ‘Culpable mental state’ on the part of the accused and it shall be for the accused to prove the fact that he had no such mental state. “Culpable mental state” includes intention, motive or fact. It was held  that the learned Magistrate of lower Court has not properly appreciated the distinction between attempt and preparation and proceeded as if the charge was that the accused had attempted to export the silver. He appears to have missed the important aspect of the prosecution that the charge against the accused was that they made preparation to commit the offence of transporting silver to specified area. Here is a case, where preparation is made an offence. Since, prima facie, the respondents made preparation to export silver in contravention of the provisions of the Customs Act, therefore, the learned Judicial Magistrate committed error in discharging the accused. Therefore, the case was remanded to the Trial Court for further enquiry and proceeding further in accordance with law [1983 Cri. LJ 612; relied upon;- AIR 1970 S.C. 713; AIR 1979 S.C. 1412; AJR 1972 S.C. 1610 distinguished].

In my view, without highest degree of evidence, knowledge of the accused and ascertaining his determined plan, charges of preparation will fail. Prosecution has to prove beyond doubt, that if the accused were not stopped, they would have carried their smuggling activities. It is not impossible but certainly difficult for prosecution to prove in the court of law.

It is also stated that during improper exportation , attempt is penalized frequently by the investigation agencies but offence of preparation hardly applied during investigation of offence and prosecution if any thereof.

## More Worthwhile Reads on this Blog:

Negligence And Fraud Under Customs Law

Mens Rea Under Customs Act,1962

Adjudication of offences Under Customs Act,1962

Repeal And Saving in Statutory Space

Recording of Statements U/s 108 of Customs Act


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