M.B. Sharma, J. - (1.) This is a State appeal against acquittal of the two accused respondents Koja and Aadoo under Section 7 of the Essential Commodities Act, 1955 (hereinafter referred to as 'the Act') for contravention of clause (3) of the Rajasthan Gram and Barley (Prohibition of Export) Order, 1966 (hereinafter referred to as 'the Order').
(2.) In the year 1967 the Order was in force and under clause (2) of the Order, a ban on the export of grain and barley was imposed and no person could export or cause to be exported either directly or through his agent or servant or any other person acting on his behalf, gram and barley, outside the State of Rajasthan. Clause 2 of the Order, which shall be taken up for consideration and so far as it relates to the present case, is to the following effect, - "Ban on export of Gram and Barley : As from the date of commencement of this order, no person shall export or cause to be exported either directly or through his agent or servant or any other person acting on his behalf, Gram and Barley either whole or split including gram churi or in any other form outside the State o f Rajasthan. ............" On October 28, 1967, Narainsingh received a secret information that some persons are going to smuggle gram on camel backs from Rajasthan to Gujarat. He, therefore, along with others, went to village Lachhiwara which is at a distance of about a mile or two within Rajasthan from the Gujarat border. They were lying in wait for the allege smugglers and at about 5.30 a.m. it was noticed by them that the two accused respondents were proceedings towards Gujarat border and on the two camel backs, there were bags of gram. Seeing them, the accused respondent Aduram is alleged to have run away leaving behind his camel and on its back, a bag of gram. Accused Koja was apprehended with the camel on the back of which were loaded two bags of gram. The three bags of gram were seized and after investigation, a complaint was filed against the two respondents initially in the court of Sub-Divisional Magistrate, Bhinmal but sub-sequently, after the separation of the executive from the judiciary, the case was transferred to the Court of Chief Judicial Magistrate, Jalore. Initially, a charge under Sec. 3/7 of the Act for contravention of clause 3 of the Rajasthan Food Grain (Restrictions Border Movements) Order, 1959 was framed and the evidence of the prosecution was recorded. But later on, it was brought to the notice of the learned Chief Judicial Magistrate that the contravention was of clause 2 of the Order and, therefore, on 20-12-74, the charge was amended and the accused were charged under Section 3/7 of the Act for contravention of clause 2 of the Order. The accused persons stand on a bare pleading of denial. Addu accused, who was not apprehended on the spot, came out with a plea that he was not present and was not attempting to smuggle grain and accused Koja came out with a plea that he was taking gram to village Lachhiwara (Rajasthan) and 'was not attempting to take gram to Gujarat and, therefore, he did not commit any offence. The accused persons did not examine any person in defence. The learned Chief Judicial Magistrate, after trial, acquitted both the accused persons on the ground that they were apprehended in Rajasthan and they could have changed their minds and would not have exported gram from Rajasthan to Gujarat. In holding so, the learned Chief Judicial Magistrate has placed reliance on Nasu Sheikh v. The State of Bihar, AIR 1972 SC 1610 .
(3.) I have heard the learned Public Prosecutor and the learned advocate for the accused respondents. I have also reproduced clause 2 of the order and a bare perusal of that would make it clear that there is prohibition from exporting or causing to be exported gram by anybody either directly or through his agent or servant or any other persons acting on his behalf. Attempt to export gram has not been made punishable. There are four distinct stages for the commission of an offence and they are: (1) intention, (2) preparation (3) attempt and (4) completion of act. The first stage has not been made punishable anywhere and the second stage of certain offence is only made punishable under the Indian Penal Code. In some of the offences, the third stage is made punishable. For other offences in the Indian Penal Code, where no provision has been made for attempting to commit an offence, it has been made punishable under Section 511, IPC.But Section 511, IPC, cannot be applied for attempt to commit an offence under other Acts unless such other Acts make an attempt to commit an offence punishable. Therefore, unless the special or local law expressly makes an attempt to commit an offence punishable, the same cannot be punished under Section 511, IPC. In Mohammed Akram and another v. The State, AIR 1951 Assam 17 dealing with a case under Imports and Exports (Control) Act, 1947, it was observed by a Division Bench of the Assam High Court as follows, - "..It is significant that Section 511, Penal Code, is omitted from Section 40, Penal Code. In other words, unless an attempt to commit an offence under a special or local law has been expressly made punishable under the special or local law it cannot be punished under the Penal Code......" I have already reproduced clause 2 of the Order and it does not make an attempt to export gram from Rajasthan as an offence. In the instant case, it is not disputed that both the accused respondents were intercepted about 2-3 miles from the Gujarat Border within the State of Rajasthan. Therefore, the offence to export gram within the meaning of clause 2 of the order had not been committed and at best, it was only an attempt to commit an offence under Clause 2 of the order read with Section 3/7 of the Act. It will be pertinent to observe here that in some orders made under section 3 of the Act, an attempt to commit an offence has been made punishable and reference may be made to Bihar Food grains (Movement Control) Order, 1957 wherein clause 3 of the Order provided that "no person shall export or attempt to export or abet the export the food grains except under and in accordance with a permit issued by the State Government in this behalf".;