MOHINDER SINGH Vs. STATE OF HARYANA

JUDGEMENT

(1.) The petitioner Ranbir Singh, while driving Truck No. HRH- 8535 and the petitioner Mohinder Singh, while sitting with the former in that truck, carrying 52 bags of bajra and 18 bags of wheat were intercepted on 23-12-1973 at the Sales Tax Barrier situated in village Badli, district Rohtak, at a distance of 11/2 K.M. from Delhi Haryana border by A.S.I. Ram Kishan P.W. 4 and Head Constable Kanwar Singh P.W. 3. This set the criminal law into motion for the petitioners had seemingly thereby committed an offence under section 7 of the Essential Commodities Act, 1955 (i) for having violated clause 3 of the Haryana Coarse Grains (Export Control) Order, 1972 by attempting to export 52 bags of bajra from Haryana State to Delhi State (U) for violating clause 3 of the Interzonal Wheat and Wheat Products (Movement Control) Order, 1973 by attempting to export 18 bags of wheat from Haryana Zone to Delhi Zone; and (Hi) for causing violation of clause 4 of the Interzonal Wheat and Wheat Products (Movement Control) Order, 1973 by moving 18 bags of wheat from one place in a Zonal border area to another place ill- that area or to any other place outside that area.

(2.) The facts as found by the courts below are not seriously now in dispute. The aforementioned police officials in the early hours of the morning of 23-12-1973 had reached Sales Tax Barrier situated in the revenue estate of village Badli. It being a winter dawn, it was foggy. They spotted the offending truck coming from village Badli side towards the border. As the site plan, Exhibit P. D. produced at the trial has revealed, as also the evidence of the two prosecution witnesses that ahead of the barrier was a canal minor after which the road passed over a bridge towards Delhi and the Delhi Border from Badli Sales Tax Barrier was 11/2 kms. only. It is also plain from the road map of Rohtak District prepared by the P.W. 2., B. and R. Branch of the Haryana State, which I have perused, that village Badli is situated on the Jhajjar Najjafgarh Road and the latter town is in Delhi State. Thus if one has to go from Badli to Jhajjar, he need not go towards Badli Sales Tax Barrier. He rather has to go on the reverse side. This too is indicated, though not very clearly, from the statements of the aforesaid two prosecution witnesses. At the trial, the case of the petitioners was that not only were both of them in the truck carrying the suggested grain, but there was the owner thereof named Khazan Singh of village Majri with them. And further that the truck was not in movement, but was standing at a tea shop at village Badli; for the grain had been brought in the truck from village Majri for onward journey to Jhajjar, the nearest grain market for the purpose of sale. Both the courts below took the view that the introduction of Khazan Singh, who appeared as D.W. 1, was an after-thought by the defence for had he been present at the spot, he too would have been arrested and not allowed to escape. Both the courts below also held that the truck was intercepted at the Badli. Sales Tax Barrier while in movement and not caught stationary at village Badli. It is on these found facts at also that Mohinder Singh being the husband of the owner of the truck having intimate connection therewith, that the courts below recorded an order of conviction of the petitioners and sentenced them to pay a fine of Rs. 2,000/- each. This is the subject matter of challenge in this petition.

(3.) The first question which arises for consideration, and as has been raised by the learned counsel for the petitioner, is whether the act of the petitioners amounted to attempt to export the food grains so as to fall under heads (i) and (H) as enumerated earlier. According to the learned counsel, admittedly the Delhi border was 11/2 kms. from the place of the occurrence. Since the petitioners were intercepted by the police at the Sales Tax Barrier could it be said that they were intercepted in the attempt of just preparation of the commission of the offence. Now the test for determining whether the act of the petitioners constituted an attempt or preparation is whether the overt acts already done by them are such that if they afterwards change their mind and do not proceed further in its progress, could acts already done be completely harmless. Necessity in such like cases has always arisen for distinguishing between acts which are merely preparatory to the commission of the crime and those which are sufficiently proximate to it to amount to an attempt to commit it. See in this connection Malkiat Singh and another v. The State of Punjab. It was held herein 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 constitutes the Actus reus of a criminal attempt. Now applying that principle, it is noteworthy that in the present case, the petitioners had been intercepted from actually committing the offence, which could only be committed if they had covered uninterruptedly 11/2 kms. distance so as to enter Delhi border. But by the Act of interception the petitioners stood warned that to carry the grain any further would be an offence. The Supreme Court in the case before it in Malkiat Singhs case (supra) 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. In that case, the distance between the Samalkha Barrier and the Delhi-Punjab boundary was approximately 14 miles yet the Supreme Court took the view that change of mind of the accused could take place at any place between the barrier and the boundary. The distance thus at which such change of mind occurs, how short of the Delhi-Punjab boundary, is of no consequence. The crux of the matter is that the accused could change their mind, at any place, short of the boundary they had in mind to cross unless the act towards the crime was the last proximate act, it could not be termed as attempt in law. In these circumstances, to my mind, it is difficult to sustain the view of the courts below that the distance between the interception and the border being only 11/2 kms. involving barely 2/3 minutes coverage brought the act of the petitioners within the meaning of an attempt to export. Yet these 2/3 minutes could, be crucial for the change of their mind. And since that possibility cannot be nIl Ed out, the interception by the police thwarted (he effort and made the commission of the offence for attempt well nigh impossible. For these reasons, I hold that the case against the petitioners for the violation of Clause 3 of the Haryana Coarse Grains (Export Control) Order, 1972 and Clause 3 of the inter Zonal Wheat and Wheat Products (Movement Control) Order, 1973 for attempt to export the respective food grains from Haryana is not proved beyond doubt and thus they are not guilty on that score.