Banarsi Dass vs State of Punjab

Harbans Singh Rai, J.

Banarsi Dass and Jaspal Singh appellants were convicted by Special Court, Patiala under Section 7 of the Essential Commodities Act and were sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 500/ each and in default of payment of fine to further undergo R.I. for one month. Though while framing the charge, the appellants were also charged for the offence punishable under Sections 467 and 468 Indian Penal Code yet they were acquitted to these charges as there was no evidence that the permit was forged by the appellants or this fact was within their knowledge. The appellants, however, preferred the instant appeal feeling aggrieved of their condition and sentence under Section 7 of the Act aforesaid.

In brief, the prosecution case is that the appellants had attempted to export 140 bags of rice Quality No. 106, from Punjab to Delhi on 11th November, 1983 when they along with a truck full of rice bags were intercepted by Shri Sant Singh Gill, District Food and Supplies Officer, Rajpura at Mehmadpur Barrier near village Shambhu. The permit for exporting rice produced by the appellants was found to be forged one. The appellants and the truck were taken to the police station where a case, under Section 7 of the Essential Commodities Act for violation of Punjab Paddy and Rice (Export and Import Control) JUDGMENT 1981 as well as under Section 468 and 471 Indian Penal Code was registered against them . After completion of all necessary formalities of investigation, they were challaned, tried and convicted as stated above.

I have heard the learned counsel for the parties and perused the evidence with their help.

The submission made by the Counsel for the appellants is onefold . He argued that even if the prosecution case is accepted in its entirety, the appellants cannot be convicted under Section 7 of the Essential Commodities Act. The learned Counsel at the very outset referred to the statement of PW1 Sant Singh Gill District Food and Supplies Officer, Patiala who in his examinationinchief (reexamination, of course) has stated that the Haryana Border is at the distance of 100 yards from their barrier. He further argued that even if it is accepted that a truck full of bags of rice was seized at the Mehmadpur barrier, still a distance of 100 yards is there between the border of Haryana State and the Mehmadpur Barrier, where the truck allegedly stopped, and the truck was yet to cover a distance of 100 yards, the appellants cannot be convicted for an attempt to smuggle the rice out of the Punjab State. He further argued that at the most the act of the appellants can be said merely to be a preparation and that in view of the law laid down by the Apex Court as well as in large number of judgments by this Court, the conviction of the appellants cannot be sustained in such a situation. He referred to Mohinder Singh and another v. State of Haryana, 1983(1) CLR 76, wherein in a similar situation, when the border was at the distance of 11/2 Kms. M.M. Punchhi, J. held that no attempt to commit the crime is established.

I have considered the arguments of the learned Counsel and found force in the same. While replying on the decision of the Apex court, in a large number of cases, this Court in similar circumstances held that no offence to attempt to smuggle banned articles/commodities can be established. In Malkiat Singh and another v. State of Punjab, AIR 1970 SC 713 relied upon in Mohinder''s case (supra) by this Court also, it has been held that 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 an intention to commit the offence and secondly to have done an act which constitutes the actu reus of a criminal attempt, wherein it was observed :

"In the present 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 DelhiPunjab boundary and not have proceeded further in their journey."

Similar is the situation in the instant case also. In the instant case the Haryana Boarder was 100 yards away from the place of interception of the truck carrying banned commodity without any permit, so the argument of the learned Counsel for the appellants that the appellants might have changed their mind at any time, before crossing the Border, cannot be refuted and in view of the law laid down by the Apex Court in Malkiat Singh''s case. I have no option but to accept the appeal. Consequently, this appeal is allowed, the conviction and sentence of the appellants are set aside and they are acquitted of the charge. Fine if paid, shall be refunded to the appellants.