IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.12457 of 2009 SANJAY SAH, S/o. Nandlal Sah, R/o. Parsa P.S. Kundwa Chainpur, District- East Champaran Versus THE STATE OF BIHAR Counsel for the Petitioner: Mr. D.N. Tiwari, Advocate. Counsel for the State: Mr. Dashrath Mehta, Addl. P.P. ----------- 05. 11.03.2011 The petitioner has challenged the order dated 04.04.2008 passed by the Sub-Divisional Magistrate, Sikrahana at Motihari in Dhaka P.S. Case No. 112 of 2007, whereby cognizance has been taken under Section 7 of the Essential Commodities Act. The F.I.R. was lodged by the Sub-Divisional Agriculture Officer, Sikrahana at Motihari to the effect that on 12.09.2007, during surprise inspection the informant found one Truck bearing Registration No. WB19A/0559 and Massy Fargusan tractor and Suraj tractor without any registration numbers carrying 239 bags of Urea Fertilizer. All the bags were weighing 50 Kg. each. When the documents were demanded no document was shown and the drivers of both the tractors escaped from the scene. The truck driver Bhagirath Prasad conveyed that the urea have been brought from one Lal Babu of Masaudha market, which was being unloaded on the tractors. On that basis the inference was drawn that the matter relates to black marketing. The alleged fertilizers were seized and the case was registered under Section 7 of the E.C. Act. It appears from the F.I.R. 2 that only Lal Babu, R/o. Masaudha market was named in the F.I.R. No suspicion was raised against the petitioner. After investigation charge-sheet has been submitted vide charge- sheet No. 13 of 2008 dated 06.02.2008. The Charge-sheet was submitted against Harendra Singh and Sanjay Sah, whereas the investigation was kept pending with regard to Lal Babu @ Lalluji @ Uma Shankar Singh and others. The charge-sheet does not reflect of any material as a basis for submission of the charge-sheet. In the similar manner learned S.D.J.M., Sikarhana took cognizance for the offence under Section 7 of E.C. Act against the petitioner Harendra Singh and Sanjay Sah vide order dated 04.04.2008 without specifying any material which persuaded the learned S.D.J.M. to take cognizance in the matter. A supplementary affidavit has been filed wherein it has been stated that the F.I.R. does not reflect any suspicion against the petitioner, moreover the suspicion of the black marketing has been presumed only because the urea was found loaded on the truck. Reliance has been placed in the judgment of Malkiyat Singh and Another Vs. The State of Punjab reported in A.I.R. 1970 Supreme Court 713, wherein it has been held that preparation in committing the offence under Section 7 of the E.C. Act cannot be termed as an offence. Para-4 of the judgment reads as follows: “4. The question to be considered in this appeal whether upon the facts found by the lower Courts any 3 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 boundary. It follows therefore that there was no export of paddy within the meaning of Para 2 (a) 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 toward 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 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 4 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 pat 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 Essential Commodities Act 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 Essential Commodities Act.” The other judgment relied by learned counsel for the petitioner is of Narayan Prasad @ Sri Narain Sao & Ors. V. The State of Bihar through its Secretary, Food, Civil Supplies & Commerce Department, Patna reported in 1998(2) PLJR Page-330, which lays down that merely 5 because some trade articles are being carried, it cannot be inferred, without there being any other material, that they were being carried for sale in black market. Learned counsel for the State Mr. Dashrath Mehta submits that though from perusal of the F.I.R. it appears that no accusation has been levelled against anyone or even the F.I.R. named accused persons but an inference has been drawn that the informant presumed the seizure of fertilizers to be a case of black marketing. Since the petitioner was not named in the F.I.R. and the charge-sheet reflects no material which persuaded the Investigating Agency to submit charge-sheet under Section 7 of the E.C. Act against the petitioner and the cognizance order also does not reflect any material which persuaded the learned Court-below to take cognizance in the matter hence continuance of the prosecution will be an abuse of the process of the Court. Hence, in the interest of justice the order of taking cognizance dated 04.04.2008 including the entire prosecution of Dhaka P.S. Case No.112 of 2007 by S.D.J.M. Sikarhana at Motihari so far as petitioner is concerned are hereby quashed. Accordingly, this application is allowed. Mkr. ( Dinesh Kumar Singh, J.)