Judgment :- 1. This appeal has been filed against the conviction and sentence of the accused in ST 28 of 1985 on the file of the Special Court for trial of offences under the Essential Commodities Act, Trichur. The appellant has been found guilty of the offence punishable under S.7(1)(a)(ii) of the Essential Commodities Act, 1955, read with S.3 of the said Act and Clause.5A and 44 of the Kerala Rationing 0.1966, for having attempted to sell 2 bags of ration rice without proper authority. He has been sentenced to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs. 1000/- and in default of payment of fine to undergo simple imprisonment for a further period of one month. 2. The appellant was an authorised retail distributor of ration shop No. ARD 152 at Manhakkadamba near Konni. On 22-9-1983 he took delivery of 10 bags of rice from Pw. 4 Parameswaran Nair, the wholesale distributor of ration rice. The rice was intended for distribution in the appellant's shop for the week commencing from 25-9-1983. The total weight of the rice was about 10 quintals and at the time of delivery the net weight of each bag was noted in the bag itself. Separate voucher was also issued by Pw4. The appellant's ration shop was at a distance of one kilometre away from the wholesale depot. At about 7.30 p. m. on that day the rice bags were loaded in Jeep No. K.L.O.9178 belonging to Pw 1. The rice was brought to the shop of the appellant. As per the direction of the appellant 8 bags of rice were unloaded in the appellant's shop and two bags remained in the jeep. The appellant directed Pwl to take the jeep to Konni town and the appellant also accompanied Pwl in the jeep. Daring the course of the journey the appellant told Pwl that he wanted to sell these two bags of rice to some one in Konni town. Then Pwl. expressed his righteous indignation and told that he would not be a party to that sort of clandestine dealing. There was some exchange of words between the appellant and Pwl, Appellant wanted to unload the rice bags. He alighted from the jeep and set out for fetching coolies to unload the rice bags. Meanwhile Pwl drove the jeep to the Konni police station and gave Ext. There was some exchange of words between the appellant and Pwl, Appellant wanted to unload the rice bags. He alighted from the jeep and set out for fetching coolies to unload the rice bags. Meanwhile Pwl drove the jeep to the Konni police station and gave Ext. P1 statement before Pw6, the Sub Inspector of Police, Konni. 3. On the basis of Ext. P1 statement Pw. 6 registered a case and seized the rice under Ext. P3 mahazar. On the next day Pw.6 held further investigation. Pw. 3 conducted inspection in the ration shop of the appellant on 24-9-1983. He found 48 written bills (Ext. P5 series), but the same were not issued to the purchasers. Ext. P5 bill books and other accounts were seized from the shop of the appellant. Pw. 3 also noticed that out of the 10 bags of rice, the appellant had taken delivery on 22-9-1983, two bags were missing, even though the stock position of the rice in the appellant's shop tallied with Ext. P7 ledger. The appellant was prosecuted for the offence of violation of Clause.5A and 44 of the Kerala Rationing 0.1966. 4. The appellant when questioned under S.313 Cr. P. C. admitted that he took delivery of 10 bags of rice from the wholesale depot of Pw. 4. But he would say that the rice bags were never transported in the jeep of Pw.1 and according to the appellant the bags of rice were transported in the bullock cart belonging to Dw.1. He has denied the ownership of the rice seized by Pw 4. The appellant also examined Pws.l to 4 to prove his contention. 5. The first charge against the appellant is that he has concocted the bill books and accounts and thereby misappropriated rationed articles. Even according to Pw. 3. the Taluk Supply Officer, the stock of rice in the appellant's shop tallies with the stock register. The case of the prosecution seems to be that the appellant prepared bills and accounts to make it appear that be bad distributed rice to the ration cardholders. This could be proved only by the production of the various ration cards. Strangely enough Pw. 3 had not seized any ration cards, presumably for the reason that the seizure of ration cards would cause inconvenience to the cardholders. This could be proved only by the production of the various ration cards. Strangely enough Pw. 3 had not seized any ration cards, presumably for the reason that the seizure of ration cards would cause inconvenience to the cardholders. But in a case of this nature it is not enough that Taluk Supply Officer makes inspection and files a report before court stating that there were serious irregularities in maintaining the accounts. The court must be satisfied that accounts maintained by the ration dealer were irregular and improper. This could be proved only by production of various ration cards, Pw. 3 the Taluk Supply Officer, should have produced the ration cards and to alleviate difficulties of the cards holders he should have issued temporary ration cards. In order to prove the offence under Clause.5A of the Kerala Rationing Order the account should be before court and the court should not be left to have a guess work. In the absence of sufficient document before court, I am constrained to hold that the appellant is not proved to have committed any offence under Clause.5A of the Rationing Order. 6. The next contention raised by the appellant that the rice seized by Pw4 from the jeep of Pwl. does not belong to the appellant and that he had not transported the rice bags in that vehicle cannot be accepted in view of the overwhelming prosecution evidence. Pwl has deposed that the appellant engaged his vehicle for transporting rice from the shop of Pw4. Pw4. also deposed to the same effect. Pw. 4 is the wholesale dealer and it is not proved that he had enmity towards the appellant. Therefore, it is satisfactorily proved that that the rice bags seized from the jeep of Pw.l belonged to the appellant. It is also proved that two bags of rice having a weight of 94.5 kilograms and 104 kilograms were taken delivery from the shop of Pw. 4 and that these two bags were found in the jeep of Pw.1 and the same were seized by Pw. 4. The short question that arises for consideration is whether the appellant had attempted to commit an offence punishable under Clause.44 of the Rationing Order. 7. 4 and that these two bags were found in the jeep of Pw.1 and the same were seized by Pw. 4. The short question that arises for consideration is whether the appellant had attempted to commit an offence punishable under Clause.44 of the Rationing Order. 7. The learned counsel for the appellant Shri Chandramohan vehemently contended that the appellant had not attempted to commit an offence, but only made some preparation for the common of the offence and therefore he is not liable to be convicted. The learned counsel relied on two decisions of the Supreme Court. In Abhayanand Mishra v. State of Bihar (AIR. 1961 SC. 1698) the distinction between preparation and attempt to commit an offence has been elaborately explained. The Court held: "There is a thin line between the preparation for and an attempt to commit an offence. Undoubtedly, a culprit first intends to commit the offence, then makes preparation for committing it and thereafter attempt to commit the offence. If the attempt succeeds, he has committed the offence; if it fails due to reasons beyond his control, he is said to have attempted to commit the offence. Attempt to commit an offence, therefore, can be said to begin when the preparation are complete and the culprit commences to do something with the intention of committing the offence and which is a step towards the commission of the offence. The moment he commences to do an act with the necessary intention, he commences his attempt to commit the offence. A person commits the offence of 'attempt to commit a particular offence' when (i) he intends to commit that particular offence: and (ii) he, having made preparations and with the intention to commit the offence, does an act towards its commission, such an act need not be the penultimate act towards the commission of that offence but must be an act during the course of committing that offence." In State of Maharashtra v. Mohd. Yakub (1980) 3 Supreme Court Cases 57) the Supreme Court explained the position of law in Para.13 of the judgment as follows: "What constitutes an attempt is a mixed question of law and fact, depending largely on the circumstances of the particular case. Attempt defies a precise and exact definition. There is a distinction between 'preparation' and 'attempt', Attempt begins" where preparation ends. Attempt defies a precise and exact definition. There is a distinction between 'preparation' and 'attempt', Attempt begins" where preparation ends. Boradly speaking, all crimes which consist of the commission of affirmative acts are preceded by some covert or overt conduct which may be divided into three stages. 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 were deliberately done, and manifest a clear intention to commit the offence aimed, being reasonably proximate to the consummation of the offence. Such act must be an act during the course of committing that offence." 8. The law on the point is well settled by the various decisions of the Supreme Court. There is a thin line of distinction between preparation and attempt to commit an offence. No clear dividing line has been drawn between the two. The question whether a certain act amounts to attempt to commit a particular offence is a question of fact depending on the nature of the offence and the attendant circumstances. Preparation to commit an offence consists of devising or arranging the means necessary for the commission of the offence. These acts are remotely connected with the commission of the crime. If the overt acts already done were such that if the offender changes his mind and voluntarily gives up the idea of committing the crime, before the criminal act is carried out, the act would only amount to preparation. If the steps taken by the accused left room for a reasonable explanation that he might either of his own accord or because of fear of consequence desist from the act to be attempted he would be held to be at the stage of preparation. An attempt is direct movement towards the commission of the crime. There is greater degree of determination and the act already done is in itself evidence of the criminal intent. An attempt is direct movement towards the commission of the crime. There is greater degree of determination and the act already done is in itself evidence of the criminal intent. It is sufficient if such act or acts were deliberately done and manifest a clear intention to commit the offence aimed, being reasonably proximate to the commission of the offence. If what is done indicates beyond reasonable doubt that the end is towards which it is directed it is an attempt, otherwise it is a mere preparation. 9. Applying the general principles to the facts of this case I am inclined to hold that the appellant had only made a preparation for the commission of an offence. The rice bags were taken from the shop to Konni town. He divulged to Pw.l that be intended to sell this rice to third parties. He did not mention the names of the prospective purchasers. Pw.1 was not prepared to help the appellant in selling the rationed articles in black market. He told this fact to the appellant and then the appellant wanted to unload the rice from the jeep of Pw.1 It has also come in evidence that there was some exchange of words between the appellant and Pw,1. The details are not spoken to by Pw.1. Pw.1 concedes that the appellant wanted to unload the rice from his jeep. What the appellant had intended to do with this rice was not known to Pw. 1. Appellant admittedly went in search of some coolies to unload the bags of rice and Pw.1 took advantage of this situation and drove the vehicle to the police station. It is not known whether the appellant still entertained the idea of selling the rice to third parties. Probably, he would have returned to his shop with this rice and in my view applying the principle of locus paenititia test it could only be assumed that the appellant was only under the stage of preparation. A case of similar nature came before the Supreme Court reported in Malkiat Singh and another v. State of Punjab (1969) (2) SCR 663) The Central Government had promulgated the Punjab Paddy (Export Control) Order, 1959 prohibiting the export or attempt to export paddy from any place within the State of Punjab to any place outside the State except under a valid permit. Paddy was booked up by a firm in Punjab and was carried in a lorry driven by the first appellant. The lorry was stopped by police at a place which was 32 miles from Delhi, that is, inside the State of Punjab and the appellants and others were prosecuted and convicted under S.7 of the Essential Commodities Act However, the Supreme Court held that no offence has been committed by the appellants nor was there any attempt to commit an offence. The Supreme Court held: "As the Daddy was seized well inside the Punjab boundary, there was no export of paddy outside the State of Punjab. It was also possible that the appellants might have changed their minds at any place between the place of seizure and the State boundary. The acts of the appellant then would only constitute preparation and not an attempt to commit the offence of export, because, the test of determining whether acts constitute merely preparation and not an attempt is whether the overt acts already done are such that if the offender changes his mind and does not proceed further, the acts already done would be completely harmless." 10. In the present case the appellant has only taken the rice bags in a jeep and it does not suggest or indicate that the appellant attempted to sell the rice to 3rd parties in black market. Therefore, I hold that the conviction of the appellant under Clause.44 of the Kerala Rationing Order, 1966 read with S.7 of the Essential Commodities Act is not sustainable and I set aside the conviction and sentence. The bail bonds executed by the appellant is cancelled. The criminal appeal is allowed.