D N ANERAO Vs. MAHESHKUMAR KANTILAL SONI

JUDGEMENT

(1.) Sec. 135A of the Customs Act which is material for our purpose reads follows:-

(2.) The learned advocate Mr. B. C. Patel for the respondents-accused drew my attention to a decision of the Supreme Court reported in Malkiat Singh v. State of Punjab A.I.R. 1970 S.C. 713 in support of his submission that no case is made out even for preparation against these two respondents. Now the Supreme Court was considering the case relating to an offence punishable under the Essential Commodities Act. Preparation to commit an offence is not made punishable under the said Act but attempt to commit is made an offence. The Supreme Court was considering the difference between attempt and preparation. Mr. Patel also drew my attention to another decision of the Supreme Court reported in Nasu Sheikh v. State of Bihar A.I.R. 1972 S.C. 1610 wherein also the question was about attempt to commit an offence punishable under the Essential Commodities Act. In that case also the Supreme Court was concerned with the question whether the act of the accused was sufficient to make out a case of attempt or mere preparation. In both the cases the Supreme Court has illustrated the difference between attempt and preparation. I fail to understand how these two decisions of the Supreme Court in any way support the contention raised by Mr. B. C. Patel because if we apply the test said down in these two decisions of the Supreme Court relied upon by Mr. Patel they on the contrary clearly show that these two respondents did make preparation for export though it cannot be said that they reached the stage of attempt to commit the offence of exporting silver. While considering the question whether the act of the appellants constituted an attempt or preparation the Supreme Court observed in the case of Malkiat Singh (supra) as follows:

(3.) As a result of the aforesaid discussion the Revision Petition is allowed the order of discharge discharging the two respondents is hereby set aside and the matter is remanded to the trial court for further inquiry in accordance with law. Petition allowed.