In Re: Jambulingam

K.N. Mudaliar, J.—The petitioner sacks to question the propriety of his conviction for an offence under S. 3(1) of the Madras Paddy and

Rice (Movement Control) Order, 1968, read with S. 7(1) of the Essential Commodities Act. The offence was caught to be proved by the

testimony of P.W. 1 who was working as a Sub-Inspector of Police.

On 8th March 1969, at about 9-30 p.m. P.W.1, Inspector Dhakshinamurthi and some others, constituting his party, went to Kammankadu

forest area, about one hundred yards away from Thanjavur-Ramanatbapuram border. P.W.1 claimed that the petty was watching for illicit

movement of paddy and rice from Thanjavur District to Ramanathapuram District. They noticed the accused petitioner driving a double bullock

cart with load proceeding towards Nalu road village in Ramanathapuram District. The cart was proceeding along the Arantangi-Puduvayal road. It

was about one hundred yards away from the other district border. The party found six and a half bags of boiled rice. The petitioner-accused was

driving the cart. He did not have any permit to transport those bags to Ramanathapuram District. He was arrested. The cart and the rice bags were

seized.

Accepting the testimony of P.W.1, corroborated by that of P. Ws. 2 and 3, the learned trial Magistrate held that since the petitioner-accused

was found only hundred yards from Ramanathapuram District border, certainly it can be said that the petitioner-accused was only ''transporting''

the said rice to Ramanathapuram District illegally without any permit. The Appellate Judge, after noticing the facts proved by P.W.1 and others In

paragraphs 9 to 12 of his judgment, upheld the conviction and sentence of three months'' R.I. imposed on the petitioner.

The learned trial Magistrate has drawn adverse inference from two consistent pleas made by the accused-petitioner. But the main plea of the

petitioner-accused was that he was taking the rice belonging to one Udayappa Thevar from Arantangi patharasankotial and that when he was three

miles away from Arantangi he was arrested by the Police. The petitioner stated that he comes from the village of Kammankada, Inasmuch as he

belongs to the said village of Kammankadu, the movements round about that village would certainly not arouse any suspicion; much less furnish any

evidence as to his transporting any rice bags without a permit. It should be consistent with his plea that he was only transporting the rice from

Arantangi to Patharasankottai.

Even accepting all the facts as spoken to by P.W. 1, I am, unable to hold that the petitioner-accused was either transporting of attempting to

transport the said rice to Ramanathapuram District Illegally without any permit.

Govinda Menon J. sums the rationale thus, in the ruling in In Re: Bavaji alias Abdul Muhammad, .

In order to constitute an attempt at commit an offence, there must first of all be an intention to commit the crime, a commencement of the

commission, and an act done towards the commission. Neither the more forming of the intention to commit the crime nor the more preparation for

an offence is punishable. The dividing lines between a more preparation and an attempt to commit a crime may be rather thin in some cases and the

question whether there has been an attempt or only a preparation to commit it is to be decided on the facts of each particular case. One important

consideration in such cases is whether there was a locus poenitentiae.

In the light of this reasoning it cannot be said that the act of the petitioner is tantamount to ''''attempt to commit a crime.

The revision case is allowed.