D. VENKATA RAO Vs. STATE OF ORISSA

JUDGEMENT

(1.) REMOVAL of a contraband article out of the border of a particular Zone, more often than not is an offence under the Essential Commodities Act read with the relevant State Rules and invariably under the Customs Act. The borderline between an attempt and a preparation is really thin and Bakhshis Singh's case, (1985)1 Crimes 156 shows that it depends upon the subjective approach of the trying judge. In that case a truck -lead of pandy without any permit was apprehended at a small distance from the boundary of Chandigarh. K.P.S. Sandhu, J. having acquitted the driver of the charge under section 7, Essential Commodities Act was pleased to observe: "There is a thin line between preparation for an offence and an attempt to commit an offence. It has to be decided on the facts and circumstances of each case whether the act would amount to a mere preparation to commit an offence. The appellants could have changed their mind at any place short of the boundary of the Union Territory of Chandigarh. So, in this situation it cannot be said that it was an attempt to commit an offence. This view finds ample support from State of M.P. v. Narayan Singh, A.I.R. 1953 M.P. 216. In that case it was proved by the prosecution evidence that the seizure was effected while the cart loaded with contraband food grains were on their way to a village across the border and actually the seizure was effected at some distance from the boundary line to wit two furlongs from the boundary. On the view that the accused persons at the last moment could have changed their minds they were acquitted. The Mysore High Court in Baburao Balwant v. State of Mysore, (1962)1 Cr. L.J. 830 too followed this view. It is most respectfully submitted that this line of approach stands interdicted by the Supreme Court in State of Maharashtra v. Md. Yakub. A.I.R. 1980 S.C. 1111: 1980. Cr. L.J. 793: (1980)2 S.C.R. 1158. Dealing with a case of this kind Chinappa Reddy, J. observed:

(2.) ...Otherwise, in every case where an accused is interrupted at the last minute from completing the offence, he may always say that when he was interrupted he was about to change his mind. It appears that the theory of the possibility of the accused's changing the mind at the last minute haunted the courts for a long time. The M.P. decision State of M.P. v. Ramchandran, A.I.R. 1969 M.P. 96 : 1969 Cr. L.J. 748 is. an illustrative case where their lordships of the M.P. High Court tried to evolve a way out of the imposes. In that case the boundary line between the States of U.P. and M.P. was the midline of a river. The cart laden with contraband essential commodity was apprehended at a little distance from the mid -line although the cart was already on the sandy bed of the river. Their Lordships of the M.P. High Court held that the act had been elevated from the state of mere preparation to an attempt.

(3.) SARKARIA J. in Md. Yakub's case (Ibid) observed that the word "attempt" defines any precise definition. His Lordship analyses three stages for the metamorphosis of preparation to attempt. These three stages are: The first stage exists when the culprit first entertains the idea or intention to commit an offence. In the second stage, he makes preparations to commit it. The third stage is reached when the culprit takes deliberate overt steps to commit the offence. Such overt act or step in order to be criminal need not be the penultimate act towards the commission of the offence. It is sufficient if such act or acts are deliberately done. In the perspective of these high authorities the ratio of Bakhshis Singh's case, it is most respectfully submitted may require consideration.