'^ HIGH COURT OF CHHATTISGARH, BILASPUR Sinale Bench: Hon'ble Shri Sunil Kumar Sinha, J. Criminal Appeal No. 647 of 1990 Omkarsingh & others ; Vs. The State of Madhya Pradesh (Now Chhattisgarh) JUDGMENT Post for JudgmenC/^/12/2009 Su^^sinba Judge JJ2A^ r-^ft .»'.,r&k "%, w^'"^ : '"^ 'if^'ii-^': A£^ HIGH COURT OF CHHATTISGARH, BILASPUR Sinfll^BencJi: Hon'ble Shri Sunil Kumar Sinha, J. Criminal Appeal No. 647 of 1 990 APPELLANTS RESPONDENT Omkarsingh S/o Jagmohan Singh Rajput, aged 34 years, R/o Pulgaon, Distt. Durg (C.G.) (Dead- Name deleted by Court order dated 10.11.2009) Kasambhai S/o Fateh Mohd, aged 32 years, R/o Ganjpara, Durg (C.G.) (Dead- Name deleted by Court order dated 10.11.2009) Mishrilal S/o Narainprasad Sharma, aged 50 years, R/o! Ganjpara, PS/Tahsil: Durg, District Durg (C.G.) Versus The State of Madhya Pradesh (Now Chhattisgarh) (Criminal Appeat under Section 374 (21 of The Code of Criminal Procedure) Appearance: Mr. P.K.C. Tiwari, Sr. Advocate with Mr. Shashi Bhushan, Advocate for appellant No.3. Mr. A.S. Kachhawaha, Dy. Advocate General, for the State/respondent. JUDGMENT (/•^l2.2009) Following judgment of the Court was delivered Sunil Kumar Sinha, J. by (1) This appeal is directed against the judgment dated 18.6.1990 passed in Special Criminal Case No. 5/83 by the Special Judge, Rajnandgaon, whereby, appellants 1 & 2 were convicted u/s 3/8 of the Essential Commodities Act and sentenced to undergo R.l. for 3 months Criminal Apueal No. 647 of 1990 and to pay fineof Rs.500/- and appellant No.3 was convicted u/s 3/7 of the Essential Commodities Act and sentenced to undergo R.l. for 3 months and to pay fine of Rs.1,000/- with default sentences. (2) Appellants 1 & 2 died during the pendency ofthe appeal, therefore, the appeal filed on their behalf abated and the names have been deleted from the cause-title ofthe appeal. (3) The facts, briefly stated, are as under:- Appellant No.3 Mishrilal was licensed dealer within the meaning of Madhya Pradesh Paddy Procurement (Levy) Order 1981 (hereinafter referred to the Levy Order, 1981). He was dealing in food-grains through his Firm namely Mishrilal Vijay Kumar, Durg. The case of the prosecution is that on 24.8.83, Mishrilal got loaded 140 bags (105 quintals) of paddy in truck No. M.B.S. 2577 for exporting it to the State of Maharashtra. Appellant No.1 was the driver of the truck and appellant No.2 was the owner of the truck. These 2 appellants took the truck to Bag-river barrier which was on the border of State of Madhya Pradesh and Maharashtra. On investigation, it was found that levy was not paid on the said paddy as per Clause 3 of the Levy Order, 1981. Therefore, acts of the appellants were.in contravention of the said Order, 1981 and were punishable u/ss 3/7 & 3/8 of the Essential Commodities Act. The appellants, specially appellant No.3 came with a defence that the said paddy was not expori:ed to Maharashtra. It was sent to a firm at Balaghat (M.P.), for which a bill Ex.-P/2-A and declaration Ex.-P/2-B were prepared and were handed over to the driver and owner ofthe truck. Since some portion of Maharashtra State comes in the route to Balaghat (M.P.) from Durg (M.P). after crossing the Bag-river barrier, therefore, such transportation would not be an offence either u/s 3/7 or u/s 3/8 of the Essential Commodities Act. \ , IIP*"...^'"'^ ..«*"aA '^•. Criminal Appeal No. 647 of 1990 The learned Special Judge, rejected the plea taken by the appellants and held that paddy. was being exported to the State of Maharashtra from the State of Madhya Pradesh in contravention of Clause 3 (1) of the Levy Order, 1981 which was punishable u/ss 3/7 & 3/8 of the Essential Commodities Act. Therefore, the appellants were convicted & sentenced as aforementioned. (4) Mr. P.K.C. Tiwari, learned Sr. Advocate appearing on behalf of appellant No.3- Mishrilal, argued that it comes in the evidence of the prosecution witnesses itself that some portion of the State of Maharashtra would come in the route from Durg (M.P.) to Balaghat (M.P.) via Bag-river barrier, where the paddy was being sent, therefore, there was no contravention of the aforesaid Levy Order 1981 as the consignment was being sent to Balaghat. Only traveling through a route falling in different State before the final destination would not amount to "export"or "attempt to export". Admittedly, the paddy was seized in the State of Madhya Pradesh, therefore, in the facts and circumstances of the case, it cannot be presumed that it was being exported to State of Maharashtra. (5) On the other hand, Mr. A.S. Kachhawaha, learned Dy. Advocate General appearing on behalf of the State, opposed these arguments and supported the judgment and order passed by the Special Judge. (6) I have heard the learned counsel for the parties at length and have also perused the records of the special case. (7) In the present case, the appellant has claimed the property i.e. 105 quintals of paddy and has also admitted that it was loaded in the said truck from his firm namely Mishrilal Vijay Kumar, food-grains dealer, Durg. The said truck, loaded with the paddy, was seized at Bag-river check-post 'SigJBsi, 1 l-W!"!sg, jj "iii E -,sy Criminal Appeal No. 647 of 1990 vide seizure memo dated 25.8.1983 Ex.-P/2. The seizure memo shows that one bill of the firm of appellant No.3 issued in the name of Ambika Rice Mill, Balaghat (M.P.) showing the sale of 105 quintals of paddy (Ex.- P/2-A) and one declaration form under the Sales Tax Act containing details of such transaction alongwith the vehicle number and other specifications (Ex.-P/2-B) were also seized by the police by the said seizure memo. These two documents show that the said paddy was being transported to Balaghat as per their contents, and they were with the consignment, therefore, one thing is established that they were not prepared after the truck was caught at Bag-river barrier. The learned Special Judge has disbelieved the plea taken by appellant no.3 on the evidence of Abayraj (PW-6) who was running Ambika Rice Mill, Balaghat on contract. He deposed that he never agreed to purchase any paddy from outside the District. Even he denied to know the firm of appellant No.3. He very specifically deposed that he made no purchase from the said firm. In the cross examination, he admitted that Firm Ambika Rice Mill was taken on contract in the name of his son. He had denied the suggestion that his son had purchased the paddy through a broker namely Madanlal. His son has not been examined by the prosecution. Admittedly, he was the person running Ambika Rice Mill, Balaghat on contract. Non-examination of the actual contractor/owner of the firm for confirming the purchase, and examining the father of the owner/contractor who denies the purchase, creates a doubt on the testimony of Abhayraj (PW-6). Even assuming that Abhayraj was acquainted with the affairs of his son's business, there may be many reasons to deny such transaction after knowing that the truck and the '<k / CriminalAmeal Na_647 of 1990 consignment has been caught by the police in connection with an offence punishable u/s 3/7 of the Essential Commodities Act, as a reasonable apprehension of being an accused in the said offence would always be in the mind of the purchaser who had purchased the said paddy. Only on account of denial of Abhayraj (PW-6), the transaction cannot be held to be malafide or illegal and the entire facts and circumstances of the case have to be examined. (8) Halke Prasad Tiwari (P.W.2) was the Forest Guard, who was on duty at the barrier on the relevant day. He deposed that he had checked the truck on the fateful day which was loaded with hundred and forty bags of Paddy. The truck came from Raipur (M.P) side and was stopped at the barrier. The State of Maharashtra is on the other side of the barrier. He deposed that the area of State of Maharashtra is at a distance of one furlong (1/8 miles) from the barrier. He very categorically admitted in Para 16 of the cross-examination that for going to Balaghat (M.P) from Bag river, one has to travel through some area of State of Maharashtra. However, there is also another route to go to Balaghat (M.P), in which, area of Maharashtra would not come in the way. He further deposed in para 17 that the truck was having no papers showing that the paddy was being taken to Balaghat (M.P). His version, so far as it relates to not having the papers of the paddy in the truck is falsified as the truck loaded with paddy and the papers of the paddy referred to above were seized by a common seizure memo by the police. (9) The learned State Counsel could not point out any provision that, in fact, if the Paddy was being taken to Balaghat (M.P) tH^ough a route, some portion of which falls in the State of Maharashtra, it would also Criminal Appeal No. 647 of 1990 contravene the provisions of the Levy Order 1981. D.S.P., C.K. Tripathy (P.W.9) also admitted in Para 9 of his cross examination that the bridge of the river is at a distance of 3 furlongs from the barrier. The area of State of Madhya Pradesh goes upto the middle ofthe bridge and then the area of Maharashtra begins. (10) In appreciation of the above evidence on record, we find that the truck loaded with Paddy having the documents showing that the paddy was being taken to Balaghat (M.P) has traveled to the barrier which is situated in the State of Madhya Pradesh and the Maharashtra boarder begins after three furlongs from the barrier. The appellants have claimed that they wanted to avail the route to Balaghat (M.P) through some portion of Maharashtra. If the truck was seized in the State of Madhya Pradesh and it was intended to be taken to Balaghat (M.P), as claimed by the appellants, it creates a doubt that the paddy loaded in the truck was being exported to the State of Maharashtra. The above explanation given by the appellants appears to be plausible and on the said evidence, it cannot be held beyond reasonable doubt that in fact the appellants were trying to export the paddy to Maharashtra, particularly when it was not established by the prosecution that the destination of the paddy was to a particular place which falls in the State of Maharashtra. (11) Sub-Clause (1) of Clause 3 of the Levy Order 1981 provides that no licensed miller or licensed dealer or any other person, shall export or attempt to export paddy outside the state of Madhya Pradesh unless 60 per cent of the total quantity to be exported is sold to the Purchase Officer in the form of levy at the rate specified in Schedule subject to the :£// Criminal Appeal No. 647 of 1990 deductions as per the specifications given in schedule-11. Therefore, there are two important considerations for determining the contravention. Either there should be an "export of paddy" or there should be an "attempt to export" the paddy outside the State of Madhya Pradesh. In case on hand, admittedly the paddy was seized in the territory of State of Madhya Pradesh. Therefore, there was no "export" of paddy within the meaning of Clause 3 (1) of the Levy Order 1981. The "attempt to export" has also not been proved in this matter as on the basis of two documents available with the truck, it was shown that the said paddy was being taken to Balaghat (M.P) and the prosecution could not establish that the destination of the consignment was to a particular place in the State of Maharashtra. The punishment cannot be awarded on the basis of alleged possible presumption raised by the prosecution on circumstantial evidence. (12) The learned Special Judge has rejected the plea of appellants only on the basis of evidence of Abhayraj (P.W.6). The evidence of Abhayraj seems to be doubtful on the grounds stated above and a possibility of the paddy being taken to Balaghat, as claimed by the appellants, by taking a route through some portion of the State of Maharashtra cannot be fully ruled out in this case. (13) In Malkiat Sinah and another -vs- The State of Puniab, AIR 1970S.C. 713 while dealing with a matter regarding contravention of Punjab Paddy (Export Control) Order (1959), the Supreme Court held that such act of the appellants 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 "% —^ Criminal Appeal No. 647 of 1990 or arranging the means or measures necessary for the commission of 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 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. The Supreme Court said that 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 said case, a truck carrying 75 bags of paddy was seized at Samolkha barrier which was in the State of Punjab. The allegations were that the paddy was being taken to Delhi in contravention of the aforesaid Punjab Paddy Order. In the trial the driver, one of the accused, admitted that he was given the paddy for being transported to Delhi. The Apex Court held that there was no contravention of the order. The Truck loaded with paddy being seized within the Punjab boundary, there was no export of paddy. There was merely a preparation on the part of the accused to commit the offence of the export. It was on the logic that it was quite possible that the accused might have been warned that they had no licence to carry the paddy and they might have changed their mind at any place before entering into the ^' Criminal Aupeal No. 647 of 1990 boundary of Delhi. The Supreme Court held that it was merely a preparation and not an attempt and the conviction of the appellants were set aside. As stated above, according to Clause 3 (1) of the Order 1981, either there should be export or an attempt to export. Likewise, in section 8 of the Essential Commodities Act, it is provided that any person who attempts to contravene, or abets a contravention of any order made under section 3 shall be deemed to have contravened the order. There is no provision in the Act, which makes a preparation to commit an offence punishable. Therefore, even otherwise also, the acts of the appellants may be classified as a 'preparation' and not as an 'attempt' and they cannot be convicted u/s 3/7 or 3/8 of the Essential Commodities Act. (14) Therefore, in my considered view, the prosecution has failed to prove beyond all reasonable doubts that the appellants were attempting to export the paddy within the meaning of para 3(1) of the Levy Order 1981 making them liable for punishment under section 3/7 of the Essential Commodities Act. (15) For the foregoing reasons, the appeal is allowed. The conviction and sentence awarded to appellant no.3 under section 3/7 of the Essential Commodities Act are set aside. The order of confiscation of paddy in question contained in para 28 of the impugned judgment is also set aside. The fine amount, if any, paid by the appellant no.3 shall be refunded to him. _^ jf^ Sunil Kumar Sinha Judge