ORDER
T.P. Garg, J.
1. Judgmohan alias Manohar Lal son of Pokhar Dass has filed the present revision against the judgment and order dated 17-6-1983 passed by IIIrd Additional District Sessions Judge, Saharanpur in Criminal Appeal No. 59 of 1982 connected with Criminal Appeal No. 54 of 1982 whereby the appeal by the applicant was dismissed and order and judgment dated 3-2-1982 passed by the Special Judicial Magistrate (Economic Offences) Saharanpur convicting the applicant under Section 3 read with Section 7 of the Essential Commodities Act (hereinafter referred to as the Act) for contravening the provision of U.P. Paddy and Rice (Restriction of Movement) Order, 1970 (hereinafter referred to as the Order) and sentencing him to undergo R. I. for two years and also to pay a fine of Rs. 2,6407- and in default of payment of fine to further undergo R. I. for three months.
2. Brief facts giving rise to the present Revision are as under :-
On the night between 12/13-6-1974 at about 0.10 a.m. Senior Marketing Inspector along with other Market Inspectors intercepted a Bus No. USK 4736 at Checkpost. Beharigarh and recovered 15 bags of rice weighing 3 quintals 30 kgs. from the possession of the accused Jagmohan alias Manohar Lal. It is alleged that he was exporting the aforesaid quantity of rice from Saharanpur block to Dehradun block. The bus was being driven at the said time by one Z. A. Shah, Driver and Conductor at that time was Yashpal. It is alleged that the accused contravened the provisions of clauses 3 and 7 of the Order, punishable under Sections 3 read with Section 7 of the Act as there is restriction on the movement of rice and paddy from one block to another. The case was investigated by the Sub-Inspector of Police, Chaman Singh P. W. 3 after the competition of which a charge-sheet was filed against the aforesaid three accused. Jagmohan alias Manohar Lal, Yashpal and Z. A. Shah, driver of the bus were charged under Section 3 read with Section 7 of the Act. All of them pleaded not guilty and claimed trial.
3. The Driver of the bus while admitting that he was driver of the bus at the relevant time denied having any concern whatsoever with the rice recovered from his bus. The Conductor of the bus pleaded that the bus was stopped after it left Chutmalpur by its driver and Jagmohan, applicant, boarded the bus along with 15 bag of rice, which were recovered by the raiding party. He further pleaded that he issued luggage tickets for the 15 bags of rice. Jagmohan accused denied the recovery of any such rice from his possession and pleaded that he was sitting on one of the front seats of the bus and he was falsely implicated on mere suspicion.
4. The prosecution examined as many as four witnesses; namely, Marketing Inspector Ramji Lal, P. W. 1, Kamdar Dharampal, P. W. 2, S. I. Chaman Singh P. W. 3 and S. I. Janeshwar Singh P. W. 4.
5. The trial Magistrate considering the evidence on record acquitted the driver of the bus, but convicted the Conductor of the bus; namely, Yashpal and owner of the Rice Bags; namely, Jagmohan. Both of them filed separate appeals against their conviction and sentence. The appeal filed by Yashpal, Conductor of Bus bearing No. 54 of 1982 was accepted. His conviction and sentence both were set aside and the other appeal filed by the present applicant, Jagmohan bearing number 59 of 1982 was, however, dismissed and his conviction and sentence both were maintained by the IIIrd Additional District Judge vide his judgment and order dated 17-6-1983, against which the present revision has been filed.
6. I have heard the learned counsel for the parties and also gone through the record of the case. In my opinion, this revision deserves to be accepted.
7. Clause 3 of Order of 1970 puts a restriction on the movement of rice and paddy from any place in any block to any place outside the block except in accordance with a general order issued by the State Government in that behalf or under and in accordance with the permit issued under cl. 4. It says that “No person shall move or attempt to move, or abet the movement, by rail or by motor vehicle of rice or paddy from any place in any block to any place outside that block except in accordance with a permit issued under cl. 4.” However, the movement of rice and paddy not exceeding 40 kgs. by a bona fide traveller is exempted.
In the instant case, the recovery is alleged to be of 15 bags of rice weighing 3 quintals 30 kgs, which is not covered by the proviso to cl. (3) of the Order. Hence the case for contravening the provisions of cl. (3) of the aforesaid order punishable under Section 3 read with Section 7 of the Act. But there are certain admitted facts in the instant case which create doubt about the intention of the accused to smuggle rice from one block to another. It has come in the evidence of Ramji Lal, Marketing Inspector P. W. 1 that the bus was intercepted at Beharigarh Checkpost and recovery was effected from the possession of Jagmohan accused who was at that time travelling by bus No. USK 4736 driven by Z. A. Shah and the Conductor of which was Yashpal. This witness has categorically admitted in his cross-examination, that the distance between Saharanpur and Dehradun is 42 miles and Beharigarh is at a distance of 20 miles from Saharanpur. He has admitted that Dehradun is at a distance of 22 miles from the Checkpost where the bus was intercepted and the accused was arrested With the aforesaid consignment of rice. He frankly admitted that there was no board indicating the start of border of Dehradun at the checkpost. He further admitted that Mohand comes after Beharigarh; that Mohand is within the jurisdiction and area of Saharanpur. In this manner, from the testimony of Ramji Lal P. W. 1, it is evident that Dehradun was still at a distance of 22 miles from the place where the accused was apprehended and recovery of rice made from him. To the same effect is the evidence of Dharam Pal Kamdar P. W. 2. This witness also admitted that there is no board indicating the start of Dehradun Border either at Beharigarh or Kali Mandir, Mohand. He admitted that Kali Mandir, Mohand is at a distance of 15 kms. from Beharigarh and border of Dehradun starts beyond that. He further admitted that Mohand is in the area of Sahranpur. Sub-Inspector Chaman Singh P. W. 3 is the Police Officer who effected the recovery. In his cross-examination, he has admitted that Kali Mandir, Mohand is in the area of Saharanpur District. Thus from the entire evidence on record, it is clearly made out that Dehradun was still at a distance of about 22 miles from the place where the Bus was intercepted and the accused was apprehended, allegedly making an attempt to export rice from one block to another. Both the courts below have failed to appreciate this fact which is so very clear from the evidence on record. In the authority cited as Malkiat Singh v. State of Punjab (AIR 1970 SC 713), the Apex Court has in very clear terms held that there is no provision in the Act which makes a preparation to commit an offence punishable. In the case reported in this authority, the truck was intercepted at the barrier at a distance of 32 miles from Delhi. The boundary at the relevant point of time was about 18 miles from Delhi. It was alleged by the prosecution that the consignment of paddy was booked from a place in Punjab to Delhi. Even the driver of the truck admitted that he was entrusted with 75 bags of paddy for being transported to Delhi. The Apex Court held that the accused could not be convicted under Section 7 of the Act as there was no contravention of the Order. Punjab Paddy (Export Control) Order prohibits the export of paddy from the State of Punjab to Delhi. It was held that 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 rea of a criminal attempt. The test for determining whether the act of accused person 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. It was held that the seizure of truck of Paddy in the territory of Punjab cannot be said to be export within the meaning of para. 2 of the Order. In the instant case, it was argued by the learned A. G. A. that the act of the accused in loading 15 bags of rice in the bus and purchasing ticket for such consignment for Dehradun clearly showed that he had full intention to export rice from Saharanpur block to Dehradun block. 1 am afraid, I do not agree with the learned A, G. A. As stated above, in Malkiat Singh authority (AIR 1970 SC 713) (supra), even the driver had admitted that he was carrying 75 bags of paddy to Delhi, but then the short point for consideration in the aforesaid authority as well as in the instant case, is that the Border was still at a distance of 22 miles from the place where the accused was intercepted and it was quite likely that, he could change his mind. As held by the Apex Court in Malkiat Singh authority (AIR 1970 SC 713) (supra), as a matter of law a preparation for committing an offence is different from the 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 alter preparations are made. In the instant case, it can at the most be said to be preparation at the time when Jagmohan accused had allegedly committed an offence. It can, by no stretch of imagination, be said that he had committed the crime. As stated above, the boundary of Dehradun block was at a considerable distance from the place where he was intercepted and where he could have changed his mind. The ratio of Malkiat Singh case (supra) is fully applicable to the facts of the instant ease. Learned lower appellate Court has not correctly appreciated the law laid down in the aforesaid authority while discussing the same in the impugned judgment. In the present case, it was quite possible that the applicant might hove been warned that he had no licence to carry the rice and he might have changed his mind at any place between Beharigarh barrier and Saharanpur Dehradun border and not have proceeded further in his journey. Section 8 of the 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 applicant should not have been convicted under Section 7 of the Act.
8. For the aforesaid reasons, the present revision is allowed. The conviction and sentence of the accused-applicant are both set aside and he is acquitted. His bail bonds are discharged. Fine, if paid by him, be refunded to the applicant. Since the applicant has denied recovery of 15 bags of rice from his possession and not owned the same, the recovered bags of rice are confiscated to the State.