ASLAM IKBAL WALI MOHAMMED v. STATE OF KARNATAKA — 1975 DIGILAW 111 (KAR)

( 1 ) THE petitioner Aslam Ikbal Vali Mohammed and two others namely vijayakumar Purushotham Srivastav and Mahamadiya Abdulgapur Patil were A3, Al and A2 respectively and who will also hereinafter be referred to as such, were prosecuted for contravening the provisions of C1. 3 of the southern States (Regulation of Export of Rice) Order, 1964 (hereinafter called the Order), punishable under S. 7 of the Essential Commodities Act, 1955 (hereinafter referred to as the Act), before the Judicial Magistrate, first Class, Laxmeswar, in CC. 514)1974. ( 2 ) THE prosecution case was that on 1-9-1974 at about 5 a. m. , the accused were found transporting 76 bags of boiled rice (Kuchalakki) weighing 7318 Kgs worth Rs. 14,636 in Truck bearing No. MHT-3623 from davanagere in Karnataka State to Bombay in Maharashtra State, without a valid permit. ( 3 ) IN answer to the charge, the accused pleaded guilty, and the learned magistrate taking the view that the plea was voluntary, convicted and sentenced each of them under C1. 3 of the Order read with S. 7 of the Act to pay a fine of Rs. 200 and in default of payment of fine to suffer simple imprisonment for three months, by his judgment dt 7-9-1974. ( 4 ) AL and A3 then challenged their convictions and sentences before the II Addl Sessions Judge, Dharwar in Crla. 364/74, and the learned Sessions judge by his judgment dt. 7-12-1974 confirmed their convictions and sentences and dismissed the appeal. Now, only A3 has filed this Revision petition challenging the conviction and sentence passed on him. ( 5 ) IT is not disputed that the truck was found on Savanur-Laxmeswar public Road, three furlongs away from Laxmeswar in Dharwar Dist, and it was loaded with 75 bags of boiled rice, 76 tea cases, 4 bundles of Agarbatti, 2 bundles of plywood and one wooden box containing 2 ghee tins. ( 5 ) IT is not disputed that the truck was found on Savanur-Laxmeswar public Road, three furlongs away from Laxmeswar in Dharwar Dist, and it was loaded with 75 bags of boiled rice, 76 tea cases, 4 bundles of Agarbatti, 2 bundles of plywood and one wooden box containing 2 ghee tins. ( 6 ) BUT the contention of Sri R. V. Kulkarni appearing for the petitioner is that even assuming that the rice was intended to be transported to Bombay the truck had still to cover a long distance and it might at the most amount to a preparation to commit an offence and the possibility of the accused changing their minds at any place between the two State borders on being warned not to transport the rice without a valid permit cannot also be ruled out, and in these circumstancesxjt was not open to the learned Magistrate to convict the accused even though they pleaded guilty as the facts alleged do not amount to an offence under Cl. 3 of the Order. In support of this contention he relied upon a decision of the Supreme court in Malkiat Singh v. State of Punjab (AIR. 1970 SC. 713 ). In that case the driver of a truck and some others were prosecuted for contravening the provisions of para 3 of the Punjab Paddy (Export Control) Order, 1959 and it was alleged that 75 bags of paddy were being transported from Malerkotla to delhi without a valid, permit. The truck in that case was stopped by the sub-Inspector of Food and Supplies Dept at Samolkha Barrier 32 mlies away from Delhi, and the Delhi-Punjab boundary at the relevant point of time was at about the 18th mile from Delhi. The question, therefore, that arose for consideration was whether there was export of paddy within the meaning out para 2 (a) of the said Order or an attempt to export paddy to delhi. Paras 2 and 3 of the said Order read :" 2. Definitions: In this Order unless the context otherwise requires- (a) 'export' means to take or cause to be taken out of any place within State of Punjab to any place outside the State. (b) 'paddy' means rice in husk. (c) 'state Govt' means the Govt of the State of Punjab. 3. Definitions: In this Order unless the context otherwise requires- (a) 'export' means to take or cause to be taken out of any place within State of Punjab to any place outside the State. (b) 'paddy' means rice in husk. (c) 'state Govt' means the Govt of the State of Punjab. 3. 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 Govt or any Officer authorised by the State Govt 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. "while dealing with that question, this is what the Supreme Court said :". . . . 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 WES 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 had an intention to commit the offence, and secondly to have done an act which constitutes the actus reus of a criminal attempt. In order that a person may be convicted of an attempt to commit a crime he must be shown first to have 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 commission 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 on 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 determining whether the act of the appellants constituted an attempt or preparation is whether the overt acts already done are such that if the offender changed/his mind 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 mind at any place between Samalkha barrier and the Delhi Punjab boundary and not have proceeded further in their journey. 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 Nasu Shekh v. State of Bihar ( AIR 1972 SC 1610 ), while dealing with a similar question arising under the Bihar Foodgrains (Control Movement) Order, 1957, this is what the Supreme Court said at page 4612 :"it is true that the appellants did not possess any permit but at the earliest opportunity while they were well within the border of the state of Bihar they had explained that they were taking the paddy to village Faridpur. In the absence of a proper plan and the information in respect of the correct geographical position of Faridpur which was suppressed by ASI. Jhaon whose testimony the High Court largely relied, it was not safe to convict the appellants of a breach of Clause 3 of the Order. . . . . . . We say this because the question of distance assumes importance in the light of the decision of this Court in Malkiat Singh v. State of punjab (1969-2 SCR 663 ). In that case also the question was whether an offence had been committed under S. 7 of the Essential Commodities act read with para 3 of the Punjab Paddy (Export Control) Order, 1959. It was held that as the paddy was seized while inside the Punjab boundary there was no export of paddy outside the State of Punjab. It was observed that it was possible that the appellants might have changed their mind at any time between the place of seizure and the state boundary. It is true that there the distance where the lorry containing the paddy was stopped was 18 miles from the Punjab-Delhi boundary. In the present case the distance certainly appears to be much less but in the absence of proper contemporaneous documents which ought to have been prepared and the omission from the first information report of the distance we are not satisfied that the possibility that the appellants might have changed their minds between the place of seizure and the boundary of West Bengal can be excluded. " ( 7 ) THERE is force in the contention of Sri Kulkarni. " ( 7 ) THERE is force in the contention of Sri Kulkarni. The principle enunciated in the cases cited above in all force applies to the case on hand. It is undisputed that the truck in question having met with an accident wes lying on Savanur-Laxmeswar Public Road in Dharwar Dist, evidently far away from the Maharashrta State Border. Therefore, if the principle enunciated by the Supreme Court in the above cases is applied to this case, it is difficult to say that the rice in question was being transported or attempted to be transported from Karnataka State to Maharashtra State. Having regard to the distance the truck had still to cover to reach the Maharashtra state Border, there was every possibility of the person or persons in charge of the truck changing their minds and not proceeding further on being warned. At any rate, as the truck was found in that condition in karnataka State, it isdiffcult to hold that the rice was being transported or attempted to be transported, in the sense these expressions are interpreted by the Supreme Court the above cases. ( 8 ) IT is no doubt true that the accused pleaded guilty to the accusation. But, when the facts alleged themselvees do not constitute an offence, the plea of guilty cannot be made the basis for conviction. A person can he convicted on a plea of guilty only if the ingredients of the offence are made out. As mentioned earlier, the allegations made against the accused, even if taken on their face value, do not constitute an diffence under C1. 3 of the order. The conviction of the accused-petitioner, therefore, for the reasons, stated above, cannot be sustained, and has to be set aside. ( 9 ) NOW the next question is whether the convictioin and sentence passed against A1 and A2 can similarly be set aside although the have not filed any revision petitions challenging the conviction and sentence passed against them and A2 even did not hie an appeal against his conviction and sentence. In Re Karuppiah (AIR. 1951 Mad. 885), a similar question came up for considers tion before Panchapakesa Iyer, J. In that case four persons were prosecuted under Ss. In Re Karuppiah (AIR. 1951 Mad. 885), a similar question came up for considers tion before Panchapakesa Iyer, J. In that case four persons were prosecuted under Ss. 8 and 9 of the Madras Gaming Act 111 (3) of 1930 and the owner of the house who was A1 was acquitted by the appellate Court of the offence under S. 8 of the Act. Though A3 and A4 did not appeal and were not represented in the reference made by the Sessions Jdge, his Lordship accepted the reference in full and set aside the convictions and sentences of all the four accused under S. 9 of the Act, and in soi doing this is what his Lordship said :" As accused 1 was acquitted by the Appellate Court of the offence u|s. 8, Madras Gaming Act, though it was admittedly his own house and he permitted the gaming therein, obviously on the ground that it was not proved to be a common gaming hquse, " it follows that all the accused should also have been acquitted of the offence u s. ,9, which will apply only to gaming in a common gaming house. " There has been aalso no appeal against the acquittal of accused 1 regarding S. 8 by the state. So, the reference by the Sessions Judge, North Malabar, is right. When the trunk is cut and falls, the branches will fall by themselves. Though accused 3 and 4 did not appeal and are not represented before me by any Counsel (possibly due to poverty, ignorance of law, despair etc) I see no reason why I should reject the reference as regards them alone when there is no difference between their case and the case of accused 1 and 2, in law and in fact, and when Or. 41, R. 33, cpc allows a Court to interfere in the interests of justice for the benefit of even 'ex parte' defendants who have not appealed, and the powers of a Criminal Court of Justice, in revision are, in this respect even wider. A similar question came up for consideration before the Calcutta High court in Sunilakhya v. H. M. Jadwet. A similar question came up for consideration before the Calcutta High court in Sunilakhya v. H. M. Jadwet. In that case, a complaint was filed under S. 500 IPC in the Court of the Addl Dist Magistrate at Port blair, Andaman and Nicobar Islands against the revision-petitioner and another who was arrayed as accused 2 and after registering the complaint the Addl Dist Magistrate directed issue of summons against both the accused, and that order the revision-petitioner alone challenged before the Calcutta high Court. One of the contentions of Mr. Sen who appeared for the complainant was that since A2 had not filed a revision petition praying for the quashing of the proceedings his case cannot be considered for the said, purpose, and while repelling that contention this is what Justice N. C. Talukdar said at page 272 : To agree with Mr. Sen's contention would mean unduly fettering the jurisdiction of the Court, in revision. Even if a party does not arrplv to this Court in revision but the said case be brought before the court by some other party, nothing would stand in the way of this court to exercise its revisional or inherent powers to make such orders as may be necessary for the ends of justice. There is no form of injustice that the long arms of the Court cannot reach and the inherent power of the Court is ex debite justitiae to dispense real and substantial justice for the administration of which alone Courts exist. " ( 10 ) I am in respectful agreement with the observations made in the above two cases. When on the facts of this case it cannot be said that an offence is committed under C1. 3 of the Order r/w S. 7 of the Act and when there is no difference between the case of A1 and A2 and the case of A3, i see no reason why I should not set aside their conviction and sentence also. As pointed out in the Madras case, the powers of a Criminal Court of justice in revision in this respect are wider than the powers conferred on a Court of appeal. In the view I take even the conviction and sentence passed against A1 and A2 have to be set aside. As pointed out in the Madras case, the powers of a Criminal Court of justice in revision in this respect are wider than the powers conferred on a Court of appeal. In the view I take even the conviction and sentence passed against A1 and A2 have to be set aside. ( 11 ) IN the result, for the reasons stated above, this petition is allowed and the conviction and sentence of not only the petitioner (A3) but also of al and A2 are set aside and they are acquitted of the offence. The fine amounts, if recovered, shall be refunded to them. --- *** --- .