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Rajasthan High Court
Jai Singh And Anr. vs The State Of Rajasthan on 27 September, 2001
Equivalent citations: 2002 (1) WLN 44
Author: S K Garg
Bench: S K Garg


JUDGMENT

Sunil Kumar Garg, J.

1. The above mentioned appeals are being decided by this common judgment as both have been preferred against the same judgment and order dated 27.5.1987 passed by the learned Special Judge, Essential Commodities Act, Sirohi in Special Case No. 10/84, by which he acquitted one accused Nemichand for the offence Under Section 3/7 of the Essential Commodities Act, 1955 (hereinafter referred to as ‘the EC Act’), but convicted both the accused appellants for the offence Under Section 3/7 of the EC Act and sentenced each of them to one year rigorous imprisonment and to pay a fine of Rs. 2000/-in default of payment of fine, to further undergo three months rigorous imprisonment.

2. The facts giving rise to these appeals, in short, are as follows:-On 3.12.1983 at about 5.30 PM, PW-3 Pukhraj Gehlot, Enforcement Inspector, Abu Road lodged a written report Ex.P/12 with the Police Station, Abu Road District Sirohi stating inter-alia that on the request of the Incharge of Police Barrier, Mawal, on 2.12.1983 PW-3 Pukhraj Gehlot alongwith police force proceeded towards the Barrier of Mawal, where they saw a Truck bearing No. RRN 2898 and that truck was checked and on checking, 130 bags of wheat were found in it and the driver of that Truck was accused appellant Jai Singh and he was asked about the papers and upon that, accused appellant Jai Singh produced Bilti No. 3095 dated 1.12.1983 showing that there were 160 bags of war Korma and that consignment was sent by Kanti Chand and Company and it was to be received by M/s. Ambalal Kantilal at Ahmedabad and the Bill No. 143 dated 1.12.1983 was issued by that firm at Jodhpur. The accused appellant Jai Singh further told that he had no other papers except that and these were given to him by the owner of the Truck as well as the owner of the goods and he had brought that wheat from Jodhpur. It is the case of the prosecution that accused appellant Kanti Chand Jain was owner of the wheat at that time. It was further stated in the report that since the goods lying in the Truck did not tally with goods for which accused appellant was having bilti, therefore, offence of contravention of Clause 3 of Rajasthan Wheat (Export Control) Order, 1981 (hereinafter referred to as ‘the Order of 1981’) was committed by the accused appellant Jai Singh and the owner of the wheat, namely, accused appellant Kanti Chand Jain. PW-3 Pukhraj Gehlot prepared the checking memo on the spot and the same is Ex.P/8. On this report, FIR Ex.P/16 was chalked out at Police Station, Abu Road District Sirohi.

After usual investigation, challan for the offence Under Section 3/7 of the E.C. Act was filed against the accused appellants and one more accused Nemichand in the Court of Special Judge, Essential Commodities Act, Sirohi on 2.8.1984.

The contents of the offence Under Section 3/7 of the E.C. Act were read over and explained to the accused persons by the learned Special Judge, Essential Commodities Act, Sirohi on 31.10.1984. The accused persons denied the contents of the offence and claimed trial.

During trial, the prosecution in support of its case examined as many as 12 witnesses and got exhibited several documents. Thereafter, statements of the accused persons Under Section 313 Cr. P.C. were recorded. In defence, two witnesses were produced by the accused persons.

After conclusion of trial, the learned Special Judge, Essential Commodities Act, Sirohi through his judgment and order dated 27.5.1987 acquitted one accused Nemichand, but convicted the present accused appellants for the offence Under Section 3/7 of the EC Act and sentenced them in the manner as indicated above holding Inter-alia that prosecution has proved its case beyond all reasonable doubts against the present accused appellant for the said offence.

Aggrieved from the said judgment and order dated 27.5.1987 passed by the learned Special Judge, Essential Commodities Act, Sirohi, these two appeals have been preferred by the accused appellants.

3. In these appeals, the following three submissions have been made by the learned Counsel appearing for the accused appellants:

(1) That alleged incident took place on 2.12.1983 when the Order of 1981 was in force and the report was lodged on 3.12.1983 and challan against the accused persons were filed on 2.8.1984, but order of 1981 was rescinded by the Government Notification dated 4.5.1984 and thus, after 4.5.1984, the Order of 1981 was not in force and since proceedings remained pending even after 4.5.1984, therefore, continuation of proceedings after the Order of 1981 was rescinded, was nothing but abuse of the process of the Court and hence, accused appellants deserve to be acquitted on this ground alone.

(2) That the Truck in question which was being driven by the accused appellant Jai Singh was intercepted inside the territory of Rajasthan and before it would have crossed, the border of Rajasthan, therefore, in view of the law laid down by the Hon’ble Supreme Court in Milkiat Singh and Anr. v. The State of Punjab , the act of the accused appellants at the most would be preparation for commission of crime and not an attempt. Therefore, the findings of conviction recorded against the accused appellant by the learned Special Judge should be set aside.

(3) That if the Court comes to the conclusion that the accused appellants have committed offence, looking to the entire facts and circumstances of the case and the facts that incident took place on 2.12.1983 and that the Truck of the wheat was seized within the territory of Rajasthan, the accused appellants be granted the benefit of probation under the provisions of Probation of Offenders Act.

4. On the other hand, the learned Public Prosecutor supported the impugned judgment and order passed by the learned Special Judge, Essential Commodities Act, Sirohi.

5. I have heard the learned Counsel for the accused appellants and the learned Public Prosecutor and perused the record of the case.

6. To appreciate the above contentions, evidence oral as well as documentary produced by the prosecution has to be looked into.

7. In the present case, there is no dispute on the point that in the Truck in question, 130 bags of wheat were found and the bilti which was found at that time with the accused appellant Jai Singh was not for that wheat, but was for Gwar Korma.

8. There is also no dispute that alleged incident took place on 2.12.1983 and the Order of 1981 was rescinded by the Government Notification dated 4.5,1984 and challan was filed on 2.8.1984.

9. From the evidence on record, especially from the evidence of PW3 Pukhraj Gehlot, PW5 Durgaram and PW-6 Jabbar Singh, it clearly appears that accused appellant Jai Singh was not having any valid licence or permit for carrying the wheat in the Truck in question.

10. There is also evidence in the statement of PW-5 Durgaram that the Truck in question first crossed the Abu Road Barrier and he has further stated that at the Barrier of Abu Road, the Truck in question crossed without checking and one Parasram asked him that this matter should be informed further.

11. Similar is the statement of PW6 Jabbar Singh. He states that the Truck in question which was being driven by the accused appellant Jai Singh crossed the Abu Road Check Post and, thereafter, it was intercepted at Mawal Check Post and the distance between Malaw Check Post and Gujarat border is about 1 km.

12. From the statement of PW-11 Narpat Singh, it is also very much clear that he enquired about the bilti and bill, which were produced by the accused appellant Jai Singh and as per the record of Krashi Upaj Mandi, Jodhpur in the Truck in question, no wheat was loaded and Kanti Chand and Company was found closed eight years back. It was also found that in Ahmedabad, there was no firm known as Ambalal Kantilal and even in Jodhpur, there was no firm known as Laxmi Transport Co. The defence of the accused appellants that actually the Truck in question was booked for transporting Gwar Korma, but by mistake, wheat was put in it, was not found favour by PW-11 Narpat Singh, who was at the relevant time SHO, Police Station, Abu Road.

13. From the statement of PW-12 Rameshwar Gehlot, it is further clear that from Jodhpur in the Truck in question, no goods were transported and so far as the firm M/s Kanti Chand and Company is concerned, it was found that such firm was not carrying any business since 1979 nor it has deposited any tax since then. He has further admitted that so far as transporting Gwar Korma is concerned, no tax was paid.

14. Thus, from the above evidence, the following facts have come in picture:

(1) That on 2.12.1983, the Truck in question was checked at Mawal Barrier and on checking, 130 bags of wheat were found in it, for which accused appellant Jai Singh was not having any valid licence on permit and there was no bilti for carrying these bags of wheat from Rajasthan to Gujarat.

(2) That the bilti, which was produced by the accused appellant Jai Singh at that time, pertained to Gwar Korma and that Gwar Korma was not found in the Truck in question.

(3) That even the addresses, which were given in the bilty of Gwar Korma, were found false one.

(4) That the Truck in question first crossed the Abu Road Barrier and, thereafter, it was intercepted at Mawal Check Post and the distance between Mawal Check Post and Gujarat border is about 1 km.

15. The question that arises for consideration is whether upon the facts just found above and by the lower court, any offence has been committed by the accused appellants or not.

16. Before proceeding further, it would be worthwhile to quote here Clause (3) of Order 1981:

3. Restrictions on export of Wheat–No person shall export or attempt to export or abet the export of wheat 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 wheat:

(i) not exceeding five kilograms in weight by a bonafide traveller as part of his luggage.

(ii) On Government Account; or

(iii) under and in accordance with Military Credit Notes;

(iv) by or on behalf of the Food Corporation of India established Under Section 3 of the Food Corporation Act, 1964 (37 of 1964).

17. From perusing the Clause (3) of the Order 1981, it appears that if any person export or attempt to export or abet the export of wheat except under and in accordance with a permit issued by the State Government he said to have committed the offence.

Point No. 1

18. There is no dispute on the point that when the cognizance was taken by the Court against the accused appellants, the Order of 1981 was not in force, but offence was committed by the accused appellants on 2.12.1983 and on that day, Order of 1981 was in force.

19. In Isher Doss v. State of Haryana , the Hon’ble Supreme Court held as under:

Essential Commodities Act (10 of 1955)–Sections 7 and 3–Haryana Milk and Milk Products Control Order (1975) Prosecution under–Validity–Control order of specified duration–Expiry of–It does not invalidate pending prosecution.

20. In view of the above authority of the Hon’ble Supreme Court, since the day on which the Truck in question was cheked, the Order of 1981 was in force, therefore, prosecution against the accused appellants cannot be put to an end merely on the ground that Order of 1981 was rescinded on 4.5.1984. In my considered opinion, the offence committed has to be tried inspite of the expiry of the period of Order of 1981. No doubt on the date of delivery of impugned judgment, the Order of 1981 was not in force, but it may be a ground for imposing lesser sentence, but merely on this ground alone, whole prosecution case cannot be rejected.

21. The learned Counsel for the accused appellants has relied on the decision of the Hon’ble Supreme Court in S. Krishnan and Ors. v. The State of Madras and Anr. 1951 SC 301. In my considered opinion, the facts of that case and the facts of the present case are somewhat different and looking to the decision of the Hon’ble Supreme Court in Isher Doss’s case (supra), the argument that the proceedings are ab initio void is not to be accepted.

22. Hence, the argument No. 1 stands rejected.

Point No. 2

23. So far as the argument No. 2 is concerned, the learned Counsel for the accused appellant has placed reliance on the following two decisions:

(1) Malkiat Singh and Anr. v. The State of Punjab (supra)

(2) Murari Lal v. State of Rajasthan 1975 RLW 45

24. No doubt in Malkiat’s case (supra), it was held by the Hon’ble Supreme Court that as the paddy was seized while inside the Punjab boundary there was no export of paddy outside the State of Punjab and it was observed that the question of distance assumes much importance because it was possible that the accused might have changed their minds at any time between the place of seizure and the State boundary and that was a case where the distance of the State border from the place the lorry containing the paddy was stopped was 18 miles and in that case, the Hon’ble Supreme Court came to the conclusion that it was a mere preparation and not an attempt.

25. In my considered opinion, the facts of that case and the facts of the present case are somewhat different. The facts of the present case revealed that it was not a case of preparation but a clear cut case of attempt on the part of the accused appellant Jai Singh to export the wheat without any valid license or permit from Rajasthan to Gujarat and accused appellant Kanti Chand Jain abetted in the commission of crime. Apart from this, in the above authority, the distance of the State border from the place where the lorry was checked was 18 miles, while in the present case, distance between the Mawal Barrier and Gujarat border is only about 1 km.

26. The test for determining whether the act of the accused person constituted an attempt or preparation is wether the overt acts already done are such that if the offender changes his mind and does not proceed further its progress, the acts already done would be completely harmless.

27. In the present case, as stated above, the Truck in question first crossed the Abu Road Barrier and it was intercepted at Mawal Check Post and the distance between Mawal Check Post and the border of Gujarat is about 1 km. Thus, the act of the present accused appellants does not fall within the purview of the preparation, but clearly makes out a case of attempt on the part of accused appellant Jai Singh to export the wheat without any valid license or permit from Rajasthan to Gujarat and accused appellant Kanti Chand Jain abetted the commission of offence.

28. So far as the decision of this Court in Murari Lal’s case (supra) is concerned, in that case bags of rice carried in truck were seized in Udaipur and from Udaipur, the distance of Gujarat is more than 200 kms. therefore, that ruling would not be helpful to the accused appellants.

29. The argument that since the Truck in question was seized within the area of Rajasthan, therefore, it was a case of preparation is not to be tenable because of the simple reason that it crossed the Abu Road Check Post and it was stopped at Mawal Barrier and on checking, the bilti which was found in the Truck was a forged one. This aspect also goes to show that no question arises that accused appellants would have changed their mind before crossing the border of Gujarat.

30. Hence, the second argument also stand rejected.

31. For the reasons stated above, the findings of the learned Special Judge convicting the accused appellant for the offence Under Section 3/7 of the E.C. Act for violating the Clause (3) of the Order of 1981 in the manner that accused appellant Jai Singh made attempt to export the wheat without a valid permit or license from Rajasthan to Gujarat and the accused appellant Kanti Chand Jain abetted the commission of offence, are liable to be confirmed and this appeal against conviction is liable to be dismissed.

On point of sentence

32. Looking to the entire facts and circumstances of the case, nature of the offence, character of the offenders and the facts that the Order of 1981 was rescinded by the State Government on 4.5.1984 and that before the Rajasthan border was crossed, the Truck in question was seized by the police and thereafter, wheat contained in it were put to auction and in view of the decision of the Hon’ble Supreme Court in Isher Dass’s case (supra), it is expedient to, release the accused appellants on probation under the provisions of Probation of Offenders Act.

In the result, both the appeals filed by the accused appellants Jai Singh and Kanti Chand Jain against their conviction for the offence Under Section 3/7 of the E.C. Act are dismissed, after confirming the judgment dated 27.5.1987 passed by the learned Special Judge, Essential Commodities Act, Sirohi.

However, on point of sentence, both the appeals are partly allowed in the manner that the order of sentence dated 27.5.1987 passed by the learned Special Judge, Essential Commodities Act, Sirohi is set aside and instead of sentencing the appellants Jai Singh and Kanti Chand Jain for the said offence, I would direct that they shall be released on probation provided each of them executes a personal bond in the sum of Rs. 1000/- (Rs. one thousand only) with one surety in the like amount to the satisfaction of the learned trial court within a period of two months’ from today to keep peace and be of good behaviour for a period of one year.


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