# MALKIAT SINGH & ANR v. STATE OF PUNJAB ' November S, 1968

- **Citation:** [1969] 2 S.C.R. 663
- **Court:** Supreme Court of India
- **Decided:** 1969
- **Case number:** Criminal Appeal No. 186 of 1966
- **Bench:** J. C. Shah, V. Ramaswami, A. N. Grover
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/malkiat-singh-anr-v-state-of-punjab-november-s-1968-4579
- **Pages:** 5

## Headnote

Essential Commodities Act (10 of 1955), ss. 3 and 7 and Punjab Paddy
(Export Control) Order, 1959, para. 3-Paddy consigned from Punjab
to Delhi-Truck carrying paddy stopped by police within Punjab StateWhether any offence committed by driver of truck.
In exercise of the powers corlferred by s. 3 of the Essential Commodic
ties Act, 1955, the Cen!Tal Government promulgated the Punjab Paddy
(Export Control) Order 1959. Paragraph 3 of the Order prohibited the
export of or attempt to' export paddy from any place within the State of
Punjab to any place outside the State except under a valid permit.
Paddy, booked by a firm·in Punjab to a consignee to Delhi, was carried
in a lorry driven by the first appellant.
The lorry was stopped by
the
police at a place which was 32 miles from Delhi, that is, inside the State
D
of Punjab (the Punjab-Delhi boundary was 18 miles from Delhi), and
the appellants, along with others, were prosecuted and convicted for an
offence under s. 7 df the Essential Commodities Act.·
In appeal to this Court,
HELD : No offence has been committed by the appellants nor
was.
there an attempt to commit an offence. [667 G]
E
As the paddy was seized well inside the Punjab boundary, there was
no export of paddy outside the State of Punjab. It was also possible that
the appellants might have changed their minds at any place between the
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place of seizure and the State boundary. The acts of the appellant then
'•
would only constitute preparation and not
an
attempt to commit the
offence of export, because, the test for determining whether acts constitute
merely preparation and not an attempt is whether the overt acts already
p
done are such that if the offender changes his mind and does not proceed
further, the acts already done would be completely harmless. [666 F-H;
667 D--E]

## Text

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A
MALKIAT SINGH & ANR.
v.
STATE OF PUNJAB
'
November S, 1968
B
[J. C. SHAH, V. RAMASWAMI AND A. N. GROVER, JJ.)
Essential Commodities Act (10 of 1955), ss. 3 and 7 and Punjab Paddy
(Export Control) Order, 1959, para. 3-Paddy consigned from Punjab
to Delhi-Truck carrying paddy stopped by police within Punjab StateWhether any offence committed by driver of truck.
In exercise of the powers corlferred by s. 3 of the Essential Commodic
ties Act, 1955, the Cen!Tal Government promulgated the Punjab Paddy
(Export Control) Order 1959. Paragraph 3 of the Order prohibited the
export of or attempt to' export paddy from any place within the State of
Punjab to any place outside the State except under a valid permit.
Paddy, booked by a firm·in Punjab to a consignee to Delhi, was carried
in a lorry driven by the first appellant.
The lorry was stopped by
the
police at a place which was 32 miles from Delhi, that is, inside the State
D
of Punjab (the Punjab-Delhi boundary was 18 miles from Delhi), and
the appellants, along with others, were prosecuted and convicted for an
offence under s. 7 df the Essential Commodities Act.·
In appeal to this Court,
HELD : No offence has been committed by the appellants nor
was.
there an attempt to commit an offence. [667 G]
E
As the paddy was seized well inside the Punjab boundary, there was
no export of paddy outside the State of Punjab. It was also possible that
the appellants might have changed their minds at any place between the
-
I
place of seizure and the State boundary. The acts of the appellant then
'•
would only constitute preparation and not
an
attempt to commit the
offence of export, because, the test for determining whether acts constitute
merely preparation and not an attempt is whether the overt acts already
p
done are such that if the offender changes his mind and does not proceed
further, the acts already done would be completely harmless. [666 F-H;
667 D--E]
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
186 of 1966.
~
Appeal by special leave from the. judgment and order dated
..
November 4, 1965 of the Punjab High Court in Criminal Revision
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No. 263 of 1965 and Criminal Misc. Nos. 224 of 1965.
Pritam Singh Safeer, for the appellants.
Harbans Singh and R. N. Sachthey, for the respondent.
The Judgment of the Court was delivered by
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Ramaswami, J. This appeal is brought, by special leave,
from the judgment of the Punjab High Court dated November 4,
1965 by which Criminal Revision petition No. 263 of 1965 and'
Criminal Miscellaneous case No. 224 of 1965 were dismissed.
il64
SUPREME COURT REPORTS
[1969) 2 S.C.R.
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The case of the prosecution is that on October 19, 1961 Sub
Inspector Banarasi Lal of Food and Supplies Department was
present at Smalkha Barrier along with Head Constable Badan
Singh and others. The appellant Malkiat Singh then came driving truck no. P.N.U. 967. Babu S1ngh was the cleaner of that
truck. The truck carried 7 5 bags of paddy weighing about 140
maunds.
As the export of paddy was contrary to law, the Sub
Inspector took into possession the truck as also the bags of paddy.
It is alleged that the consignment of paddy was booked from
Lakerkotla on October 18, 1961 by Qimat Rai on behalf of
Messrs. Sawan Ram Chiranji Lal. The consignee of the paddy
was Messrs.
Devi Dayal Brij Lal of Delhi.
It is alleged that
Qimat Rai also gave a letter, Ex. P-3 addressed to the consignee.
Sawan Ram and Chiranji Lal were partners of Messrs.
Sawan
Ram Chiran ji Lal and they were also prosecuted.
In the trial
·court Malkiat Singh admitted that he was driving the truck which
was loaded with 75 bags of paddy and the truck was intercepted
at Samalkha Barrier. According to Malkiat Singh, he was given
the paddy by the Transport Company at Malerkotla . for being
transported to Delhi.
The Transport Company also gave him
a letter assuring him that it was an authority for transporting the
paddy. But it later transpired that it was a personal letter from
Qimat Rai to the Commission agents at Delhi and that it was not
a letter of authority.
Babu Singh admitted that he was sitting
in the truck as a cleaner. The trial court convicted all the accused
persons, but on appeal the Additional Sessions Judge set aside the
·conviction of Sawan Ram and Chiranji Lal and affirmed the conviction of Qimat Rai and of the two appellants. The appellants
took the matter in revision to the High Court but the revision
petition was dismissed on November 4, 1965.
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It is necessary at this stage to reproduce the relevant provisions of the Essential Commodities Act, 1955 (Act 10 of 1955).
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Section 3 (1) is to the following effect :
"3. ( !) If the Central Govermnent is of opinion
that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or
for securing their equitable distribution and availability at fair prices, it may by order provide for regulatG
ing or prohibiting the production, supply and distribution' thereof and trade and commerce therein."
Section 7 states :
"7. ( 1) If any person contravenes any order made
under section 3-
( a) he shall be punishableH
( i) in the case of an order made with reference to
clause (h) or clause (i) of sub-section (2) of that
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MALKIAT SINGH V. PUNJAB (Ramaswami, J.)
665
section, with imprisonment for a term which may extend
to one year and shall also be liable to fine, and
(ii) in the case of any other order, with imprisonment for a term which may extend to three years and
shall also be liable to fine :
Provided that if the Court is of opinion that a sentence of fine only will meet the ends of justice, it may,
for reasons to be
recorded, refrain from imposing a
sentence of imprisonment; and
(b) any property in respect of which the order has
been contravened or such part thereof as the Court may
deem fit including, in the case of an order relating to
foodgrains, any packages, coverings or receptacles in
which they are found and any animal, vehicle, vessel
or other conveyance used in carrying foodgrains shall
be forfeited to the Government :
Provided that if the Court is of opinion that it is
not necessary to direct forfeiture in respect of the whole
or, as the case may be, any part of the property or any
packages, coverings or receptacles
or any
animal,
vehicle, vessel or other conveyance, it may, for reasons
to be recorded, refrain from doing so.
( 2) If any person to whom a direction is given under
clause (b) of sub-section ( 4) of section 3 fails to comply with the direction he shall be punishable with imprisonment for a term which may extend to three years, or
with fine, or with both."
By section 2 of Punjab Act No. 34 of 1959 the Punjab Legislature added a new section, s. 7-A in the Central Act No. 10 of
1955 which reads as follows :
"Forfeiture of certain property used in the commission of the offence.-Whenever any offence relating
to foodstuffs which is punishable under section 7 has
been committed, the court shall direct that all the packages, coverings or receptacles in which any property
liable to be forfeited under the said section is found and
all the animals, vehicles, vessels or other conveyances
used in carrying the said property shall be forfeited to
the Government."
On !anuary 3, 1959 the Central Government promulgated
the Puniab Paddy (Export Control) Order, 1959 in exercise of
the powers conferred by s. 3 of the Essential Commodities Act.
1955.
Para 2 of this Order states:
"2. Definitions.-In this Order, unless the context
otherwise requires,-
666
SUPREME COURT REPORTS
[1969] 2 S.C.R.
(a) 'export' means to take or cause to be taken out
o,f any place within the State of Punjab to any
place outside the State.
(b) 'paddy' means rice in husk;
( c) 'State Government' means the Government of
the State of Punjab."
Para 3 of the Order provides as follows :
"Restrictions on export of paddy.-No person shall
export or attempt to export or abet the export of paddy
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 paddy,-
(i) not exceeding five seers in weight by a bona fide
traveller as part of his luggage; or
(ii) on Government account; or
(iii) under and in accordance with Military Credit
Notes."
The question to be considered in this appeal is whether upon
the facts found by the lower courts any offence has been committed by the appellants. It is not disputed that the truck carrying the paddy was stopped at Samalkha Barrier which is 32 miles
from Delhi.
It is also not disputed that the Delhi-Punjab boundary was, at the relevant point of time, at about the 18th mile
from Delhi.
It is therefore evident that there h.as been no export
of paddy outside the State ill Punjab in this case. The truck with
the loaded paddy was seized at Samalkha well inside the Punjab
boundary. It follows therefore that there was no export of paddy
within the meaning of Para 2 (a) of the Punjab Paddy (Export
Control) Order, 1959. It was however argued on behalf of the
respondent that there was an attempt on the part of the appellants
to transport paddy to Delhi, and so there was an attempt to commit the offence of export. In our opinion, there is no substance
in this argument.
On the facts found, there was no attempt on
the part of the appellants to commit the offence of export. It
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
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 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
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MALKIAT SINGH v. PUNJAB (Ramaswami, J.)
667
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 co=ission of a crime, and
those which are sufficiently proximate to it to amount to an attempt
to commit it. If a man buys a box of matches, he cannot be
convicted of attempted arson, however clearly it may be proved
that he intended to set fire to a haystack at the time of the purchase.
Nor can he be convicted of this offence if he approaches
the stack with the matches in his pocket, but, if he bends down
near the stack and lights a match which he extinguishes (Jn perceiving that he is being watched, he may be guilty of an attempt
to burn it.
Sir James Stephen, in his Digest of Criminal Law,
art. 50, defines an attempt as follows :
'"an act done with intent to commit that crime, and
forming part of a series of acts which would constitute
its actual commission if it were not interrupted.
The
point at which such a series of acts begins cannot be
defined, but depends upon the circumstances of each
particular case."
The test for deternrining whether the act of the appellants constituted an attempt or preparation is whether the oven acts already
done are such that if the offender changes his miud and does not
proceed further in its progress, the acts already done would be
completely harmless.
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 miud at any
place between Samalkha Barrier and the Delhi-Punjab boundary
and not have proceeded further in their journey.
Section 8 of
the Essential Commodities 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 co=it an offence punishable. It follows therefore that
the appellants should not have been convicted under s. 7 of the
Essential Co=odities Act.
For these reasons we allow this appeal and set aside the conviction of the appellants under s. 7 of the Essential Co=odities
Act and the sentence of fine imposed upon each of them.
We
also set aside the conviction and sentence of Qimat Rai and the
order of forfeiture passed by the trial Magistrate with regard to
75 bags of paddy and truck no. P.N.U. 967.
The fines, if paid
by any of the convicted persons must be refunded.
V.P.S.
Appeal allowed.