HARBANS SINGH RAI,J - (1.) THIS judgment will dispose of Criminal Appeal Nos. 600-SB of 1985 and 13-SB of 1986 as they arise out of the same judgment of the Special Judge, Hoshiarpur dated 29th November, 1985. Joginder Singh, Joginder Pal Ajmer Singh and Krishan Parshad, were prosecuted by the Special Court presided over by Shri R. L. Anand, Additional Sessions Judge, Hoshiarpur who acquitted Kishan Parshad but convicted Joginder Singh, Joginder Pal and Ajmer Singh under Section 7 of the Essential Commodities Act read with Section 120-B of the Indian Penal Code and sentenced each of them to undergo rigorous imprisonment for a period of one year and to pay fine of Rs. 500/- and in default of payment of fine to further undergo RI for three months. Feeling aggrieved thereby, Joginder Pal and Ajmer Singh appellants have preferred Criminal Appeal No. 600-SB of 1985, whereas Joginder Singh appellant filed Criminal Appeal No. 13-SB of 1986.
(2.) THE prosecution case is that on 11th November, 1982 at about 8.00 A.M., Sat Pal Inspector and Harbhajan Singh Sub-Inspector, Food and Supplies Department were present along with other officials at the check barrier Chak Sadhu when a truck bearing registration No. HPG 1545 came from the side of Hoshiarpur. Joginder Pal appellant was the driver of that truck whereas Ajmer Singh was the cleaner thereof. The truck was signalled to stop and when it stopped, Sat Pal Inspector enquired from the driver as to what was loaded in the truck. On search, it was found that the truck was carrying 120 bags of rice quality IB-8. Each bag was found to be approximately 90/95 kgs in weight. Joginder Pal could not produce any export permit authorising to take the rice out of the State of Punjab. However, Joginder Pal appellant disclosed that the rice belonged to one Joginder Singh who had engaged him for carrying the rice. He also disclosed that Joginder Singh was following their truck and is likely to reach there at any time and that he (Joginder Singh) had all the relevant documents with him. But since Joginder Pal and Ajmer Singh appellants could not produce the export permits, all the 120 bags of rice were taken into possession and a ruqa in this behalf was sent to the police station for the registration of a case. The investigation of the case was taken over by ASI Balbir Singh who on reaching the check barrier prepared a rough site plan and apart from other relevant documents also took into possession the truck in question and the bags of rice. In the meantime, Joginder Singh appellant and his co-accused Kishan Parshad reached there. Since they could not produce the relevant documents authorising the export of the rice, so after completion of all due formalities with regard to investigation, the challan against all the four persons, namely, Joginder Singh, Joginder Pal, Ajmer Singh and Kishan Parshad was put in the Court. They were, tried, convicted and sentenced as stated in the earlier part of the judgment. Kishan Parshad was, however, acquitted of the charges. The learned counsel for the appellants have made a very short submission. They argued that even if the prosecution case is accepted in its entirety, the appellants cannot be convicted under Section 7 of the Essential Commodities Act. Mr. K. S. Ahluwalia Advocate for the appellant (in Criminal Appeal No. 13-SB of 1986) has referred to the statement of Sat Pal PW1 who in his examination-in-chief has stated that the border of Himachal Pradesh State is at the distance of 6 kms. from the check barrier of Chak Sadhu. He further argued that even if it is accepted that a truck full of rice was seized at the barrier, still a distance or 6 kms is there between the border of the Himachal Pradesh State and the check barrier and as the truck was yet to cover a distance of 6 kms, the appellants cannot be convicted for an attempt to smuggle the rice out of the Punjab State. He argued that at the most the act of appellants can be said merely to be a preparation and that in view of the law laid down by the Apex Court as well as in large number of judgments by this Court, the conviction of the appellants cannot sustain in such a situation. He referred to Mohinder Singh and another v. State of Haryana, 1983(1) C.L.R. 76, wherein in a similar situation, when the border was at the distance of 1-1/2 kms. M.M. Punchhi, J. held that no attempt to commit the crime is established.
(3.) I have considered the arguments of the learned counsel and found force in the same. While relying on the decision of the Apex Court in a large number of cases, this Court in a similar circumstances held that no offence to attempt to smuggle banned articles/commodities can be established. In Malkiat Singh and another v. State of Punjab, AIR 1970 SC 713 relied upon in Mohinder Singh's case (supra) by this Court also, it has been held that 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 an intention to commit the offence and secondly to have done an act which constitute the actus reus of a criminal attempt, wherein it was observed : "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". ;