ORDER P.T. Raman Nair , J. 1. The two accused persons in this case were charged with having taken rice without a permit from Karakkat within the specified area of the Ottapalam Taluk, to Tirur, outside that area, in contravention of Clause.3 of the Kerala Rice (Regulation of Movement) Third Order, 1965 (an order made under R.125 of the Defence of India Rules and hereinafter referred to as the Order), with having caused hurt to the Head Constable, P. W.1, who arrested them in the discharge of his duty, and with having escaped from his custody. On these charges they were convicted by the Sub Divisional Magistrate, Malappuram of offences under S.224 and 353 of the Indian Penal Code and R.125(9) of the Defence of India Rules read with Clause.3 of the Order. They were sentenced to suffer rigorous imprisonment for six months for each offence, the sentences to run concurrently. They appealed to the Court of Session. The learned Sessions Judge dismissed the appeal although he found that the accused had not completed the act of taking the rice outside the specified area, an attempt being equally prohibited by Clause.3 of the Order. The accused have come up with this revision petition which has been referred to a Division Bench because the vires of the Order was challenged in the light of the Division Bench ruling in Surajmal Roopchand & Co. v. State (AIR 1967 Rajasthan 104). 2. The facts as found by the learned Sessions judge and the evidence clearly supports the finding are as follows: On 17-11-1965, P. W. 10, the Sub Inspector of Railway Police, Shoranur detained his Head Constable, P. W.1, and two constables for duty on the train leaving Shoranur for Calicut at about seven in the morning to check the transport of rice in contravention of the Order. Accordingly P. W. 1 and his men boarded the train at Shoranur. At the next stop, Karakkat, within the Ottapalam Taluk, they saw the two accused and some others board another compartment of the train with five bags of what appeared to be rice. This was just as the train was leaving the station. P. W. 1 and his men got down at the next station. Pattambi, still within the Ottapalam Taluk (and within P. W. 1's jurisdiction if that were material) and got into the compartment in which the accused were travelling. This was just as the train was leaving the station. P. W. 1 and his men got down at the next station. Pattambi, still within the Ottapalam Taluk (and within P. W. 1's jurisdiction if that were material) and got into the compartment in which the accused were travelling. They found the two accused there each seated on a bag of rice. (The remaining three bags, it would appear, were lying concealed in the lavatory, but with that we are not directly concerned). The accused had no permit for the transport of the rice and therefore P.W. 1 arrested them and seized the rice. The train went its way past Pallipuram, still in the Ottapalam Taluk, and, after crossing the boundary of that Taluk and entering the non specified area of the Tirur Taluk between Pallipuram and the next station, Kuttipuram, passed Kuttipuram and Thirunavaya to reach Tirur. Just before it stopped at the Tirur Station the two accused got up and pushed the two bags of rice out of the compartment after opening the door. P. W. 1 and his two constables at once caught hold of the accused and there was a scuffle in which some others, who got into the compartment at Tirur and tried to remove the remaining three bags, joined on behalf of the accused. In the result the two accused escaped and P. W. 1 was left with a torn shirt and a few scratches. 3. The evidence does not disclose that the accused persons used or threatened to use criminal force on P. W 1 and the learned Advocate General appearing for the prosecution has himself submitted that their conviction under S.353 of the Indian Penal Code cannot stand. 4. Clause 3 of the Order says: "No person shall move or attempt to move or abet the movement of rice from any place within a specified area to a place outside that area or from the specified area to another specified area except under and in accordance with a permit issued by the Collector of the concerned District or any other Officer authorised by him in this behalf." And sub-r.(9) of R.125 of the Defence of India Rules under which the Order was made, makes the contravention of any order made under the rule punishable with imprisonment for a term which may extend to three years or with fine or with both. It will be recalled that the accused were arrested, and the rice they were taking seized, at Pattambi well within the specified area of the Ottapalam Taluk. Thereafter, neither their movement nor the movement of the rice was of their volition and it cannot be said that they moved the rice from the specified area of the Ottapalam Taluk to a place outside that area their movement of the rice by throwing it out of the compartment at Tirur did not take rice from a place within a specified area to a place outside that area. Therefore, the learned Sessions Judge was quite right in holding that accused had not moved the rice out of the specified area of the Ottapalam Taluk, but, I think he was equally right in holding that they had attempted to do so which also is prohibited by Clause.3 of the Order. The accused had no case that they were taking the rice to some place within the specified area of the Ottapalam Taluk, for example, to Pattambi or to Pallipuram. (Their defence was a complete denial, a disclaimer that they had had anything to do with the rice. The 1st accused's case was that he boarded the train only at Kuttipuram, that of the 2nd accused that he was not on the train at all but being a law abiding citizen surrendered before the magistrate on hearing that the police were looking for him). Nor would the circumstances, the boarding of the train proceeding from a place in a specified area to a place outside that area in company with others carrying large quantities of rice, the concealment of part of the rice in the lavatory of the compartment and the disposal of the two bags of rice at Tirur and the attempted disposal of the remaining bags with the help of others obviously in league with the accused, permit of a ready acceptance of any such case. I have no doubt that the accused were taking the rice from the specified area of the Ottapalam Taluk to a place outside the area when they were caught by P. W. 1. 5. It is submitted that, even so, the stage of attempt had not been reached and that the accused were still at the stage of preparation when they were arrested by P. W. 1. 5. It is submitted that, even so, the stage of attempt had not been reached and that the accused were still at the stage of preparation when they were arrested by P. W. 1. I cannot agree, not that it would be of much avail to the accused even if I did seeing that R.144 of the Defence of India Rules says that an act preparatory to a contravention of any provision of the rules or of an order made thereunder shall be deemed to be a contravention of the provision. It is often said that the dividing line between preparation and attempt is a thin line, in the sense, I suppose, that it is a weak and ill defined line, not easy to locate. Otherwise, the thinner the line the fewer would be the cases that fall on the line and the easier it would be to say whether a particular case falls in the region of preparation or in the region of attempt. As a matter of abstract theory, unrelated to the facts of a particular case, it is difficult to postulate how and where exactly the line should be drawn and as the text book writers have demonstrated, it is not difficult to imagine facts against which one or the other of the several theories which currently hold the field must fail. But, given the facts of a particular case, it might not be so difficult, as a mater of plain practical commonsense, to say whether the stage of preparation has been passed and that of attempt reached. In this particular case, once the possibility that the accused were carrying the rice to a place within the specified area of the Ottapalam Taluk is excluded, as we have seen it must, there can be no doubt that the stage of attempt had been reached whatever theory you might adopt in locating the dividing line. 6. Each case has to be decided on its own particular facts and therefore precedents are not of much assistance except for understanding the principles to be applied. 6. Each case has to be decided on its own particular facts and therefore precedents are not of much assistance except for understanding the principles to be applied. I think that what I have said is in accord with the principles laid down in Abhayanand v. State of Bihar ( AIR 1961 SC 1698 ), Om Prakash v. State of Punjab ( AIR 1961 SC 1782 ) and State of U.P. v. Ram Charan (AIR 1962 Allahabad 359) and that, on its particular facts, this case is more akin to the cases considered in State v. Haricharan (AIR 1950 Orissa 114) and Alla Bux v. Emperor (AIR 1946 Allahabad 170) than to those considered in Queen Empress v. Ramakka, ( ILR 8 Madras 5) Narayanaswami v. Emperor (AIR 1932 Madras 507), Noor Bibi v. State (AIR 1952 Jammu & Kashmir 55) and State v. Narain Singh (AIR 1963 Madhya Bharat 216) on which great reliance is placed on behalf of the accused. 7. It is pointed out that whereas the charge against the accused was of the completed act of moving the rice from the specified area to a place outside that area, the conviction upheld by the Sessions Judge is of an attempt to do so. But, this is expressly permitted by sub-s.(2A) of S.238 of the Criminal Procedure Code. True, that is only an enabling provision and should not be used where there is risk of a failure of justice. But, having regard to the case put forward by the accused, I do not think that there was the least possibility of any such failure. That, had the charge been one of a mere attempt, the accused could have invented some other defence than the defence they did invent, is certainly not a circumstance I would lake into consideration in finding out whether there could have been a failure of justice. 8. There can be no doubt that an offence punishable under R.125(9) of the Defence of India Rules read with Clause.3 of the Order has been made out. 9. R.125 is not one of the rules mentioned in R.152 of the Defence of India Rules as a rule for the contravention of which, or of an order made under which, a police officer may arrest without a warrant. 9. R.125 is not one of the rules mentioned in R.152 of the Defence of India Rules as a rule for the contravention of which, or of an order made under which, a police officer may arrest without a warrant. But the punishment provided under sub-r.(9) of the rule extends to imprisonment for three years and therefore under S.54 read with the third entry from the bottom of Schedule II of the Criminal Procedure Code, the offence is one for which a police officer may arrest without a warrant the additional power of arrest conferred by R.152 of the Defence of India Rules can lead to no inference that the power of arrest conferred by the Code in respect of matters not covered by this rule is taken away. It follows that the arrest of the accused by P.W. 1 was a lawful arrest and that, in escaping from his custody, the accused committed an offence under S.224 of the Indian Penal Code. 10. I shall now consider the contention that has been responsible for this case coming before us. Clause.3 and 4 of the Rice (Removal of Control) Order, 1954, an order made by the Central Government under S.3 of the Essential Supplies (Temporary Powers) Act, 1946 say; "3. Removal of all restrictions on movement of rice - As from the date of commencement of this Order there shall be no prohibition, restriction or control on the movement of rice from any place in a State to any other place within or outside that State nor shall there be any regulation of control in any manner whatsoever in relation to the production, price or distribution of rice. 4. Effect of this order - This order shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than the said Act ." Although the Essential Supplies (Temporary Powers) Act expired on 26-1-1955, this order has been continued in force, first by S.16 of the Essential Supplies (Temporary Powers) Ordinance and then by S.16 of the Essential Commodities Act, 1955 and must now be deemed to be an order made under that latter Act and (not having been cancelled) to continue in force accordingly. S.6 of the Essential Commodities Act says: "An order made under S.3 shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or any instrument having effect by virtue of any enactment other than this Act." (There was a similar provision in the Essential Supplies Temporary Powers) Act, and Clause.4 of the Rice (Removal of Control) Order, 1954 which only states the effect of this provision is altogether otiose). The argument is that Clause.3 of the Rice (Removal of Control) Order, 1954 enjoins that the movement of rice from any place in the country to any other place shall be free of any prohibition, restriction or control and that, in view of S.6 of the Essential Commodities Act, this must prevail over the regulation imposed by Clause.3 of the Order. 11. This argument does not take due note of S.43 of the Defence of India Act, 1962 which says: "The provisions of this Act or any rule made thereunder or any order made under any such rule shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in any instrument having effect by virtue of any enactment other than this Act." It seems to me that the section, appearing as it does in an enactment of 1962 must prevail over S.6 of the Essential Commodities Act which is an enactment of 1955. Although it contains no express words to that effect such as, "for the time being in force" I am prepared to assume that S.6 of the Essential Commodities Act takes within its scope not merely enactments and instruments in force at the time it was made but also enactments and instruments to be made thereafter. It is therefore as if the section enumerated all the enactments and instruments then in force and added that the overriding effect conferred by it on orders made under S.3 would extend over enactments and instruments to be made thereafter. (And this would take in the Defence of India Act and the orders having effect by virtue thereof). But then that is precisely what S.43 of the Defence of India Act also does. (And this would take in the Defence of India Act and the orders having effect by virtue thereof). But then that is precisely what S.43 of the Defence of India Act also does. It gives overriding force to the provisions of that Act or any rule made or to be made thereunder or any order made or to be made under any such rule over all other enactments (no matter whether special or general) then in force and (making the same presumption as I have made in the case of S.6 of the Essential Commodities Act which is similarly worded) to be made in the future and also over any instrument having effect by virtue of any such enactment. The Essential Commodities Act, 1955 being an enactment in force when the Defence of India Act, 1962 was made, it is as if the Essential Commodities Act were expressly mentioned in S.43 of the Defence of India Act as an enactment which must yield to the provisions of the Defence of India Act or any rule made thereunder or any order made under such a rule. It is as if S.43 of the Defence of India Act expressly said that the Order (The Kerala Rice (Regulation of Movement) Third Order, 1965), is to prevail notwithstanding anything contained in S.6 of the Essential Commodities Act or any instrument having effect by virtue of that enactment. It follows that the Order must prevail over the Rice (Removal of Control) Order, 1954, and, so long as the Order is an order validly made under the Defence of India Rules - and there is no case to the contrary - it does not in the least matter that the Order was made by the State Government while the Rice (Removal of Control ) Order, 1954 was made by the Central Government. So long as the orders are validly made, the status of the authorities making conflicting orders under different enactments is irrelevant. The only question is which enactment is to prevail. 12. So long as the orders are validly made, the status of the authorities making conflicting orders under different enactments is irrelevant. The only question is which enactment is to prevail. 12. The overriding effect being expressly conferred by the later statute and not merely implied by an application of the maxim, leges posteriores priores contraries abrogant there is no scope for invoking the presumption against any intention to alter the law beyond the immediate scope of the statute, and, by an application of the doctrine, generalia Specialibus non derogant, reaching the result that "a general later law does not abrogate an earlier special one by mere implication", or, in other words, that "where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered or derogated from merely by force of such general words, without any indication of a particular intention to do so". (Maxwell 11th edition pp. 153, 154, 168 and 169. There is no question but that by the use of words to that effect a later enactment howsoever general can repeal an earlier enactment howsoever special. It is only when there is no express repeal and a repeal is to be spelled out by implication that the maxims referred to come into play). But, if there were, and it were necessary to say which is the general law and which the special in relation to the present matter, the Defence of India Act or the Essential Commodities Act, I would be inclined to say that, so far as the regulation of the movement of rice is necessary for the purposes intended to be served by the Defence of India Act, that Act and not the Essential Commodities Act is the special law. 13. For these reasons I am, with great respect, unable to agree with the view taken in Surajmal Roopchand & Co. v. State (AIR 1967 Rajasthan 104) which seems to support the contention of the accused. And it seems to me unnecessary to consider the contention raised on behalf of the prosecution that there are subsequent order made under the Essential Commodities Act itself imposing restrictions on the movement of rice clearly pointing to the conclusion that the Rice (Removal of Control) Order, 1954 has been impliedly repealed. And it seems to me unnecessary to consider the contention raised on behalf of the prosecution that there are subsequent order made under the Essential Commodities Act itself imposing restrictions on the movement of rice clearly pointing to the conclusion that the Rice (Removal of Control) Order, 1954 has been impliedly repealed. 14. In my view the conviction of the accused under S.224 of the Indian Penal Code and under R.125(9) of the Defence of India Rules and the sentences awarded for those offences call for no interference. 15. In the result the conviction and sentence recorded against the accused under S.353 of the Indian Penal Code are set aside, but, otherwise this petition is dismissed. Govindan Nair J. I agree but with one reservation. The Defence of India Act must prevail over the Essential Commodities Act so far as the regulation of the movement of rice is necessary for the purposes served by the Defence of India Act and in that respect, that Act, and not the Essential Commodities Act, is the special law. The apparent conflict between S.6 of the Essential Commodities Act and S.43 of the Defence of India Act has to be resolved by the application of the rule that the special law must override the provisions of the general law.