IN THE HONBLE COURT OF SESSIONS

AT BOMBAY, MAHARASHTRA

STATE OF MAHARASHTRA

____________________ Prosecution
v.

MOHD. YAKUB

____________________Defence

WRITTEN SUBMISSIONS ON BEHALF OF THE DEFENCE

T A B L E OSubmitted
F C O N Tto
EN
S
Most Respectfully
theT Honble
Court of Sessions
Table of Contents...2
Index of Authorities...3
List of Abbreviation................................................................................................4
Statement of Jurisdiction ..5
Statement of Facts 6
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Statement of Issues...7
Arguments Advanced...8
1. WHETHER

THE ACCUSED HAS ATTEMPTED TO EXPORT THE SILVER INGOTS IN

INDIAN LAW ?
1.1. Distinction between preparation and attempt
2. WHETHER THE ACCUSED SHOULD BE HELD GUILTY
CONTRAVENTION OF

FOR THE CHARGES FRAMED BY

?
2.1. Test for determining law of Attempt
2.2. Position in Commonwealth Countries
THE PROSECUTION

Prayer ....................................................................................................................................15

INDEX OF AUTHORITIES

INDIAN STATUTES
The Indian Penal Code, 1860
The Code of Criminal Procedure, 1973
ENGLAND STATUE
Criminal Attempt Act, 1981

-MEMORIAL ON BEHALF OF DEFENCE -

AUSTRALIAN STATUE
Crimes Act, 1958

BOOKS REFERRED
1.
2.
3.
4.
5.
6.

Ratanlal & Dhirajlal, The Indian Penal Code,Student Edition,First Ed. 2014.
Dr K I Vibhute ,P S A Pillais Criminal Law , Twelth Ed. 2014.
Gaur KD, Criminal Law : Cases and Materials, Seventh Ed. 2007.
III Sarvaria S K , The Indian Penal Code, Tenth Ed. 2008.
Kelkar, R.V., Criminal Procedure, Fifth Ed. 2011.
Ratanlal & Dhirajlal, The Indian Penal Code, Thirty Third Ed. 2011.

DYNAMIC LINKS
1.

www.lexisnexis.com

2.

www.supremecourtofindia.nic.in

3.

www.westlawindia.com

LIST OF ABREVEATIONS

AIR
AP
CrLJ
CrPC
Guj.

All India Report

Andhra Pradesh
Criminal Law Journal
Code of Criminal Procedure, 1973
Gujarat
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-MEMORIAL ON BEHALF OF DEFENCE HC

HP
ILR
IPC
LJ
Ltd
Mad.
MP
Ors.
Punj.
Rep.
SC
SCC
SCR
v.

High Court
Himachal Pradesh
Indian Law Report
Indian Penal Code, 1860
Law Journal
Limited
Madras
Madhya Pradesh
Others
Punjab
Report
Supreme Court
Supreme Court Cases
Supreme Court Report
Versus

S TATE M E N T O F J U R I S D I C T I O N

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;]
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-MEMORIAL ON BEHALF OF DEFENCE (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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S TATE M E N T O F FAC T S

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.

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7|Page

-MEMORIAL ON BEHALF OF APPELLANTS-

S TATE M E N T O F I S S U E S

1. WHETHER

THE

ACCUSED

HAS ATTEMPTED TO EXPORT THE SILVER INGOTS IN

INDIAN LAW ?
1.1. Distinction between preparation and attempt
CONTRAVENTION OF

2. WHETHER

THE ACCUSED SHOULD BE HELD GUILTY FOR THE CHARGES FRAMED BY THE

?
2.1. Test for determining law of Attempt
2.2. Position in Commonwealth Countries
PROSECUTION

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-MEMORIAL ON BEHALF OF APPELLANTS-

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-MEMORIAL ON BEHALF OF APPELLANTSA R G U M E N T S AD VAN C E D

It is humbly submitted on behalf of the Defence, that

1. WHETHER

THE

ACCUSED

CONTRAVENTION OF

HAS ATTEMPTED TO EXPORT THE SILVER INGOTS IN

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 something1. 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. 2
Preparation consists in arranging or devising the means necessary for the commission of a
crime. Every crime is necessarily preceded by preparation. 3 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:
(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 preparation4.
(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
1 The Shorter Oxford English Dictionary, Vol. II, Third Edition, Clarendon Press, Oxford.
2 Union of India & others v. Formulators Association of India, 2002 8 SCC 410
3 Dr. V. Krishnamachari, Law of Evidence, Fifth Edition, Reprinted 2004, S.Gogia &
Company, Hyderabad.
4 Malkiat Singh v. State of Punjab, AIR 1970 SC 713
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-MEMORIAL ON BEHALF OF APPELLANTSwhich is more than merely preparatory to the commission of the offence 5. 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.
In Mohan Lal v. Emperor6 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.
In Appu v. State7 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.
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 attempted8.
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 attempt
There 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
5 Gaur K.D. , Indian Penal Code Chap.XXIII p. 842
6 AIR 1937 Sind 293.
7 AIR 1971 Mad 194.
8 Kenny, C.S, Outlines of criminal Law Chap.V , p. 843
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-MEMORIAL ON BEHALF OF APPELLANTSpreparation

is

not9. 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:
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 attempt10.
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.

9 Malkiat Singh v. State of Punjab AIR 1970 SC 713

10 R v. Eagleton 1855 UK
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-MEMORIAL ON BEHALF OF APPELLANTS-

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
that
2.1 Test for determining law of Attempt
2.1.1 Last Step Test or Proximity Rule
As 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 11. 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
Ali12 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.
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
11 Dr K I Vibhute ,P S A Pillais Criminal Law , Twelth Ed. 2014, Ch.15, p.189
12 1881 ILR 7 Cal. 352
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-MEMORIAL ON BEHALF OF APPELLANTSit. 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.13
2.1.2

Doctrine in Locus Poenitentiae

The 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 harmless14.
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 case15."
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
harmless16.
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.

13 Abhayanand Mishra v. State of Bihar AIR 1961 SC 1698

14 Supra note 9
15 Digest of Criminal Law, Art. 50,
16 Supra note 9
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-MEMORIAL ON BEHALF OF APPELLANTSThe 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 Countries

As 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 an offence unless the conduct of the
person is
(a) More than merely preparatory to the commission of the offence; and
(b)

Immediately and not remotely connected with the commission of the offence.

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:15 | P a g e

-MEMORIAL ON BEHALF OF APPELLANTSWhoever 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 17
as against the separate statute being there for attempt in England and Australia where the
position is a settled one.
In India, the SC has in different cases applied different test as proximity, in the instant case
and locus poenitentiae18.

17 Dr K I Vibhute ,P S A Pillais Criminal Law , Twelth Ed. 2014, Ch. 15 p.183.

18 Supra note 9
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-MEMORIAL ON BEHALF OF APPELLANTS-

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 and
TO HOLD

1. The Accused is not guilty for the offence of attempt of exporting silver ingots in
2.

contravention of Indian Law

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)

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