minal Appeal No 186 of 1966
Appeal by special leave from the judgment and order dated November 4 1965 of the Punjab High Court in Criminal Revision No 263 of 1965 and Criminal Misc
224 of 1965
Pritam Singh Safeer for the appellants
Harbans Singh and RN Sachthey for the respondent
The Judgment of the Court was delivered by Ramaswami J
This appeal is brought by special leave from the judgment of the Punjab High Court dated November 4
1965 by which Criminal Revision petition No 263 of 1965 and Criminal Miscellaneous case No 224 of 1965 were dismissed
664 The case of the prosecution is that on October 19 1961 Sub Inspector Banarasi Lal of Food and Supplies Department  was present at Smalkha Barrier along with Head Constable Badan Singh and others
The appellant Malkiat Singh then came driving truck No PNU 967
Babu Singh was the cleaner of that truck
The truck carried 75 bags of paddy weighing about 140 maunds
As the export of paddy was contrary to law the Sub Inspector took into possession the truck as also the bags of paddy
It is alleged that the consignment of paddy was booked from Lakerkotla on October 18 1961 by Qimat Rai on behalf of Messrs Sawan Ram Chiranji Lal
The consignee of the paddy was Messrs Devi Dayal Brij Lal of Delhi
It is alleged that Qimat Rai also gave a letter exhibit P 3 addressed to the consignee Sawan Ram and Chiranji Lal were partners of Messrs Sawan Ram Chiranji Lal and they were also prosecuted
In the trial court Malkiat Singh admitted that he was driving the truck which  was loaded with 75 bags of paddy and the truck was intercepted at Samalkha Barrier
According to Mallfiat Singh he was given the paddy by the Transport Company at Malerkotla for being transported to Delhi
The Transport Company also gave him a letter assuring him that it was an authority for transporting the paddy
But it later transpired that it was a personal letter from  Qimat Rai to the Commission agents at Delhi and that it was not a letter of authority
Babu Singh admitted that he was sitting in the truck as a cleaner
The trial court convicted all the accused  persons but on appeal the Additional Sessions Judge set aside the conviction of Sawan Ram and Chiranji Lal and affirmed the conviction of Qimat Rai and of the two appellants
The appellants took the matter in revision to the High Court but the revision petition was dismissed on November 4 1965
It is necessary at this stage to reproduce the relevant provisions of the Act 10 of 1955
Section 3 1  is to the following effect 3
1 If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices it may by order provide for regulating or prohibiting the production supply and distribution thereof and trade and commerce therein
 Section 7 states 7
1  If any person contravenes any order made under section 3 a he shall be punishable i in the ease of an order made with reference to clause h or clause i of sub section 2 of that 665
section with imprisonment for a term which may extend to one year and shall also be liable to fine and ii in the case of any other order with imprisonment for a term which may extend to three years and shall also be liable to fine Provided that if the Court is of opinion that a sentence of fine only will meet the ends of justice it may for reasons to be recorded refrain from imposing a sentence of imprisonment and b any property in respect of which the order has been contravened or such part thereof as the Court may deem fit including in the case of an order relating to foodgrains any packages coverings or receptacles in which they are found and any animal vehicle vessel or other conveyance used in carrying foodgrains shall be forfeited to the Government Provided that if the Court is of opinion that it is not necessary to direct forfeiture in respect of the whole or as the case may be any part of the property or any packages coverings or receptacles or any animal vehicle vessel or other conveyance it may for reasons to be recorded refrain from doing so
2  If any person to whom a direction is given under clause b of sub section 4 of section 3 fails to comply with the direction he shall be punishable with imprisonment for a term which may extend to three years or with fine or with both
 By section 2 of Punjab Act No 34 of 1959 the Punjab Legislature added a new section section 7 A in the Central Act No 10 of 1955 which reads as follows Forfeiture of certain property used in the commission of the offence
Whenever any offence relating to foodstuffs which is punishable under section 7 has been committed the court shall direct that all the packages coverings or receptacles in which any property liable to be forfeited under the said section is found and all the animals vehicles vessels or other conveyances used  in carrying the said property shall be forfeited to the Government On January 3 1959 the Central Government promulgated the Punjab Paddy Export Control Order
1959 in exercise of the powers conferred by section 3 of the 
Para 2 of this Order states 2 Definitions
In this Order unless the context otherwise requires 666 a export  means to take or cause to be taken out of any place within the State of Punjab to any place outside the State
b paddy  means rice in husk c State Government  means the Government of the State of Punjab
 Para 3 of the Order provides as follows Restrictions on export of paddy
No person shall export or attempt to export or abet the export of paddy except under and in accordance with a permit issued by the State Government or any officer authorised by the State Government in this behalf Provided that nothing contained herein shall apply to the export of paddy i not exceeding five seers in weight by a bona fide traveler as part of his luggage or ii on Government account or iii under and in accordance with Military Credit Notes
 The question to be considered in this appeal is whether upon the facts found by the lower courts any offence has been committed by the appellants
It is not disputed that the truck carrying the paddy was stopped at Samalkha Barrier which is 32 miles from Delhi
It is also not disputed that the Delhi Punjab boundary was at the relevant point of time at about the 18th mile from Delhi
It is therefore evident that there has been no export of paddy outside the State of Punjab in this case
The truck with the loaded paddy was seized at Samalkha well inside the Punjab boundary
It follows therefore that there was no export of paddy within the meaning of Para 2a of the Punjab Paddy Export Control Order 1959
It was however argued on behalf of the respondent that there was an attempt on the part of the appellants to transport paddy to Delhi and so there was an attempt to commit the offence of export
In our opinion there is no substance in this argument
On the facts found there was no attempt on the part of the appellants to commit the offence of export
It was merely a preparation on the part of the appellants and as a matter of law a preparation for committing an offence is different from attempt to commit it
The preparation consists in devising or arranging the means or measures necessary for the commission of the offence
On the other hand 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 667 had an intention to commit the offence and secondly to have done an act which constitutes the actus reus of a criminal attempt
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 it
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
Sir James Stephen in his Digest of Criminal Law article 50 defines an attempt as follows  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 case
 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 harmless
In the present case 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 Delhi Punjab boundary and not have proceeded further in their journey
Section 8 of the states that any person who attempts to contravene or abets a contravention of any order made under section 3 shall be deemed to have contravened that order
But there is no provision in the Act which makes a preparation to commit an offence punishable
It follows therefore that the appellants should not have been convicted under section 7 of the 
For these reasons we allow this appeal and set aside the conviction of the appellants under section 7 of the and the sentence of fine imposed upon each of them
We also set aside the conviction and sentence of Qimat Rai and the order of forfeiture passed by the trial Magistrate with regard to 75 bags of paddy and truck No PNU 967
The fines if paid by any of the convicted persons must be refunded
VPS Appeal Allowed


Summary:
In exercise of the powers conferred by section 3 of the  the Central Government promulgated the Punjab Paddy Export Control Order 1959
Paragraph 3 of the Order prohibited the export of or attempt to export paddy from any place within the State of Punjab to any place outside the State except under a valid permit
Paddy booked by a firm in Punjab to a consignee to Delhi was carried  in a lorry driven by the first appellant
The lorry was stopped by the police at a place which was 32 miles from Delhi that is inside the State of Punjab the Punjab Delhi boundary was 18 miles from Delhi and the appellants along with others were prosecuted and convicted for an offence under section 7 of the 
In appeal to this Court HELD No offence has been committed by the appellants nor was there an attempt to commit an offence
667 G As the paddy was seized well inside the Punjab boundary there was no export of paddy outside the State of Punjab
It was also possible that the appellants might have changed their minds at any place between the place of seizure and the State boundary
The acts of the appellant then would only constitute preparation and not an attempt to commit the offence of export because the test for determining whether acts constitute
merely preparation and not an attempt is whether the overt acts already done are such that if the offender changes his mind and does not proceed further the acts already done would be completely harmless
666 F H 667 D E