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Kittanna Rai Vs. the State of Mysore - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Judge
Reported in1970CriLJ1190
AppellantKittanna Rai
RespondentThe State of Mysore
Excerpt:
.....even if the prosecution evidence is accepted, at worst, it only shows that there was preparation to commit an offence, but not an attempt to commit an offence. sri mandagi argues that in a case like that, the question of preparation or attempt to commit an offence does not arise. sub-clause (4) of the proviso to that section clearly states that 'nothing contained herein shall apply to transport of rice within the same town or village in the border area. 7. there is also considerable force in the contention of sri suvarna that even if the prosecution evidence is accepted, it would best show that there was only preparation to commit an offence and not an attempt to commit an offence. a, 188 of 66 reported in short notes, page 6 of the mysore law journal part dated 23-1-1969, their..........about 5,30 a.m., when p. w. 3. the assistant sub-inspector of food mobile squad was patrolling the border area, he found the accused in a locality called kemmethadka, transporting about 30 kgs. of boiled rice in a gunny bag. he asked the accused whether he had a permit to transport the rice to kerala state. as the accused did not possess any permit to transport the rice, he seized the same under the yadast exhibit p-3 in the presence of p. w. 2 gopala krishna rao, a panch witness.3. it has been contended by sri suvarna, learned counsel appearing on behalf of the petitioner, that the prosecution has not proved that the accused had committed any offence under section 3-a of the southern (regulation of export of rice) order, which will be hereinafter referred to as the order. it is argued.....
Judgment:
ORDER

M. Santhosh, J.

1. The petitioner before this Court was the accused in Summary Trial Case No. 828 of 1967 in the Court of the Judicial First Class Magistrate, Puttur, South Kanara. The petitioner has been convicted of an offence under Section 3-A of the Southern States (Regulation of Export of Rice) Order, 1964, read with Section 7 (1) (a) (ii) of the Essential Commodities Act, and sentenced to pay a fine of Rs. 75, in default to undergo S. I. for three weeks. In this revision, he challenges the legality and correctness of the said conviction and sentence passed on him.

2. The prosecution case is that on 8-10-67 at about 5,30 A.M., when P. W. 3. the Assistant Sub-Inspector of Food Mobile Squad was patrolling the border area, he found the accused in a locality called Kemmethadka, transporting about 30 Kgs. of boiled rice in a gunny bag. He asked the accused whether he had a permit to transport the rice to Kerala State. As the accused did not possess any permit to transport the rice, he seized the same under the Yadast Exhibit P-3 in the presence of P. W. 2 Gopala Krishna Rao, a Panch witness.

3. It has been contended by Sri Suvarna, learned Counsel appearing on behalf of the petitioner, that the prosecution has not proved that the accused had committed any offence under Section 3-A of the Southern (Regulation of Export of Rice) Order, which will be hereinafter referred to as the order. It is argued that the prosecution has not proved that the accused transported the rice from any place in the border area to any place outside the border area; nor has the prosecution proved that the accused transported rice from any place inside the village or town in the border area, to any place outside the village or town, in the border area. It is stressed that under the 4th proviso to Section 3-A, it would be an offence only if rice is transported from inside a village or town in the border area to any place outside the village or town, or from; one village or town to another village or town in the border area. It is contended that the prosecution evidence does not show that the accused transported the rice from one town to another town or from inside the town to any place outside the town. The accused was caught in the village of Kemmethadaka. The prosecution has not let in any evidence to show that the accused was taking the rice from Kemmethadka to any other village or town. Sri Suvarna also contends that even if the prosecution evidence is accepted, at worst, it only shows that there was preparation to commit an offence, but not an attempt to commit an offence. Sri Suvarna has strongly relied on a decision of this Court in Baburao Balwant Kurubet v. State of Mysore 1961-39 Mys LJ 742 : 1962 (1) Cri LJ 830 in support of his said contention. He has also relied on a decision of the Supreme Court in Malkiat Singh v. State of Punjab Cr. A. 186/66 reported in Short Notes of Supreme Court cases in Mysore Law Journal Part dated 23-1-1969 at page 6.

4. It is contended by Sri Mandagi, learned Counsel appearing on behalf of the State, that moving with rice within the border area, it is itself an offence. If a person is found in the border area carrying rice, it would amount to an offence under Section 3-A of the Order. Sri Mandagi argues that in a case like that, the question of preparation or attempt to commit an offence does not arise. It is also stressed by Sri Mandagi that the decision of this Court in 1961 Mys L J 742 : (1962 (1) Cri L J 830) was rendered not under the present Order; but, it is argued that Section 3-A of the Order makes a departure from the earlier Orders with regard to transport of rice. It is further argued that it is for the accused to make out that his case falls within one of the clauses in the proviso to Section 3-A.

5. According to Section 3-A, no person shall transport, attempt to transport or abet the transport of rice (a) to any place in the border area from any place outside that area; or (b) from any place in the border area to any place in that area, Before the accused can be convicted for contravention of the said provision of 3. 3-A, the prosecution has to prove that the accused transported or attempted to transport rice to any place outside that area. There is no evidence let in by the prosecution to prove that the accused transported the said rice from any place in the border area to any place outside that area, Sri Mandagi has not been able to show that the prosecution has let in any evidence with regard to this, With regard to Clause (b) of Section 3-A, the prosecution has to prove that the accused transported rice from any place in the border area to any other place in that area, The prosecution evidence only shows that the accused was found carrying 30 Kgs. of boiled rice in Kemmethadka without any permit. The prosecution has not let in any evidence to show that the accused had transported the rice from any place in the border area to any other place in that area, There is considerable force in the contention of Sri Suvarna that transporting rice within the same town or village in the border area is not an offence under Section 3-A. Sub-clause (4) of the proviso to that section clearly states that 'nothing contained herein shall apply to transport of rice within the same town or village in the border area.'

6. The finding given by the learned Magistrate in paragraph 7 of the judgment is as follows:

It is clear from the evidence of P. W. 2 and P. W. 3 that the accused was found carrying 30 Kgs, of boiled rice on 8.10-1967 at about 5.30 A. M., in the locality called Kemmethadka in Nettanige Moodnur village. It is proved by the prosecution witnesses that the locality Kemmethadka is at a distance of about six fur-longs from Kerala State border and as such, it comes within belt area. Therefore, there are sufficient materials on the record to think that the accused was carrying SO Kgs. of boiled rice in the locality called Kemmethadka which is a belt area.

From the said finding of the learned Magistrate, it is clear that he was under the impression that mere carrying of 30 Kgs. of boiled rice within the belt area constitutes an offence under Section 3-A of the Order. As has been pointed out earlier, it is necessary for the prosecution to prove that the accused transported or attempted to transport rice from any place in the border area to any other place in that area. Moving within the same town or village in the border area, as per Sub-clause (4) of the proviso, would not amount to an offence under Section 3-A of the Order.

7. There is also considerable force in the contention of Sri Suvarna that even if the prosecution evidence is accepted, it would best show that there was only preparation to commit an offence and not an attempt to commit an offence. In 1961 Mys L J 742 : (1962 (1) Cr L J 830)-Hombe Gowda J., (as he then was), has-laid down that in a case where the petitioner was found transporting bags of rice in his truck and the said truck was; stopped near the Toll Naka, about a mile away from the border of the State of Bombay, and the petitioner was prosecuted, as in the instant case under Section 7 of the Essential Commodities Act, the petitioner could not be found guilty of an offence under that section inasmuch as. he did not actually transport the bags of rice out of Mysore State. Simply because the vehicle was proceeding in the direction of Bombay State, it could not be presumed that the petitioner would have entered the State of Bombay. In the said case, the petitioner was transporting 64 bags of rice in his truck when the same was stopped by the Head Constable near the Toll Naka of Sankeshwar. The Head! Constable had information to the effect that the petitioner was transporting rice to the State of Bombay. Because, of this, information, he was lying in wait near the Toll Naka and immediately when the truck came near the Toll Naka, he stopped the vehicle and found 64 bags of rice and seized the same. His Lordship held that on the facts proved in the case, it would amount only to preparation and not an attempt to commit an offence under Section 7 of the Essential Commodities Act, The conviction of the petitioner was therefore set aside.

8. In Cr. A, 188 of 66 reported in Short Notes, Page 6 of the Mysore Law Journal Part dated 23-1-1969, their Lordships of the Supreme Court held that where a truck loaded with paddy which was driven by the accused was seized well inside the boundary of the State, it does not amount to an attempt to export of paddy within the Punjab Paddy Export Control Order. It was merely a preparation on the part of the accused.

9. I am therefore of opinion that, from the evidence on record, it cannot be said that the accused had attempted to commit the offence and that the prosecution evidence, even if accepted, would only show that there was preparation to commit the offence.

10. After going through the evidence in the case, I am of opinion that the prosecution has not proved by satisfactory evidence the charge against the accused, and therefore, the conviction and sentence passed on him have to be set aside.

11. In the result, I allow this revision petition and set aside the conviction and sentence passed on the petitioner by the learned Judicial First Class Magistrate, Puttur. The fine amount, if already paid, shall be refunded to him. The order of confiscation of the rice to the State will stand, as the petitioner's case is that he was not carrying the said rice with him on the morning in question.


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