1. The State Government of Madhya Pradesh have filed his appeal against the order of acquittal passed by the Sessions Judge, Gwalior, dated 18th July 1966, setting aside the order of conviction passed by the Magistrate First Class, Bhander, dated 24th April 1966, convicting the accused Ramcharan under Section 7 of the Essential Commodities Act, 1955, read with Sections 3 and 4 of the Inter Zonal Wheat & Wheat Products (Movement Control) Order, 1964, and sentencing him to Rigorous Imprisonment for six months and a fine of Rs. 200/-, or, in default, to 4 months' Rigorous Imprisonment.
2. The prosecution case was this. On the night intervening between 15th and 16th May, 1965, the accused was found exporting wheat from Madhya Pradesh to Uttar Pradesh in contravention of Section 3 of the Inter Zonal Wheat & Wheat Products (Movement Control) Order, 1964. There were 9 carts laden with wheat bags landed into the 'Pat' of the Pahuj river, proceeding from Mouja Khiria-Jhansi in Madhya Pradesh, heading towards Mouja Kumhari in Uttar Pradesh. The river Pahuj is admittedly the border of the State of Madhya Pradesh and the Uttar Pradesh, and their respective boundaries would coincide at a point at the middle of the river. The wheat Inden carts were intercepted and seized. The first cart was being driven by the accused Kamcharan carrying 9 maunds ol wheat and the eighth cart containing 12 maunds of wheat by the accused Binde. Both the accused persons were tried by the Magistrate First Class, Bhander, and convicted under Section 7 of the Essential Commodities Act and sentenced to Rigorous Imprisonment for six months and to fine of Rs. 200/-. Against their conviction and sentences, the accused preferred Criminal Appeals Nos. 137 & 138 of 1966 before the Sessions Judge, Gwalior, who has allowed the said appeals and set aside their conviction and sentences holding, inter alia, that they had not contravened Section 7 of the Essential Commodities Act and/or Sections 3 and 4 of the Inter Zonal Wheat and Wheat Products (Movement Control) Order, 1964.
3. Tbe learned Sessions Judge is of the view that the carts having been intercepted and seized on this side of the river Pahuj in the State of Madhya Pradesh, had not crossed the border and, therefore, the accused had neither exported nor attempted to export wheat, in contravention of Section 3 of the Movement Control Order, and could not be convicted under Section 7 of the Essential Commodities Act. As regards the contravention of Section 4(b), the learned Judge held that the accused had a two-fold protection. In the first place, the carts had gone upto the bank of the river Pahuj from the village abadi of Mouza Kheriya Jhansi, i. e., the movement was within the same village area itself, and this is permitted under the exemption granted by Section 6, Clause (iii). In this connection, he observes:
'Village evidently would mean the area of the village as shown in Revenue records. What Section 4(b) contemplates is restriction on the movement of wheat from one village to the other and not tomovement of wheat within the same village area.'
Secondly, the accused were also protected by the exemption under Section 6, Clause (vii), if they were taking wheat with the intention of sale to Chirgaon inasmuch as the Chirgaon Mandi was the nearest market from the Zonal border area where Mouza Khiriya Jhansi is situate. The learned Judge states:
'The Mandi should be the nearest Mandi from the zonal border area. It could be within or outside the zonal border area. The object in view appears to be convenience to the villagers in the zonal border area and not to disrupt the Mandis and the commercial commitments. Therefore, even if the accused were moving grain with the intention of sale at Chirgaon, which is the nearest Mandi, Section 6(vii) protects them.'
4. Before dealing with this appeal, it would be necessary to set out a few more facts. The defence of the accused was this. The accused Binde has cultivation at mouza Lidhori in Uttar Pradesh and his threshing-floor is at mouza Kumhari also in Uttar Pradesh. The carts were seized when they were coming out of his threshing floor at mouza Kumhari, while they were on their way to Chirgaon for sale. Ramcharan was carrying Binde's wheat as he had not sown any wheat that year. Revenue records showing that Binde has lands at mouza Lidhori in Uttar Pradesh are placed on record in support of this plea. In other words, the defence plea was that the accused were carrying wheat from one place in Uttar Pradesh to another place in that State and that the seizure was not effected on this side of the river Pahuj before crossing the border into the State of Uttar Pradesh. The learned Judge has, however, disbelieved the entire defence version, and instead, accepted the prosecution case that the seizure was actually effected on this side of the river Pahuj within the State of Madhya Pradesh, i. e., the carts had not crossed the State border.
5. For a proper appreciation of the questions involved in the appeal, it would be convenient to set out the relevant provisions. Sections 3, 4 and 6 of the Inter Zonal Wheat and Wheat Products (Movement Control) Order, 1964, read thus:--
'3. Prohibition of export and import of wheat and wheat products --
(1) No person shall export or attempt to export or abet the export of wheat or any wheat product except under and in accordance with a permit issued by the Central Government or by the Government of the State from which such wheat or wheat product is to be exported or by an officer authorised in that behalf by the Central Government or, as the case may be, by the Government of that State.
4. Restriction on the movement of wheat or wheat products to or within zonal border area -- No person shall move, attempt to move or abet the movement of wheat or any wheat product ---
(a) to any place in the zonal border area from any place outside that area; or
(b) from any place in the zonal border area to any other place in that area, except under and in accordance with a permit issued by the State Government having jurisdiction in this behalf or by an officer authorised in that behalf by that Government.
6. Exemption -- Nothing contained in Clause 4 or Clause 5 shall apply to the movement of wheat or any wheat product, as the case may be --
(iii) Within the same town or village in the zonal border area or in the external border area; or
(vii) from a village in the zonal border area or in the external border area to the nearest grain market (mandi) for the purpose of sale, whether such market is within or outside any such area.
6. We are satisfied that the learned Sessions Judge has failed to apply the provisions of Section 3 of the Inter Zonal Wheat and Wheat Products (Movement Control) Order, 1964. As per Section 3, the export or attempt to export wheat, out of the State of Madhya Pradesh except as provided therein, is totally prohibited The word, 'export', is denned in Section 2(a), to mean, 'to take or cause to be taken by any means whatsoever, out of any place within a Zone to a place outside it.' The word 'zone' means, by reason of Section 2 (g), 'any part of the territorial Units of India consisting of a State or States or Union territories or any portion of any Union territory as specified in, the schedule annexed to this Order'. The State of Madhya Pradesh has been specified in the Schedule as 'zone III', while the State of Uttar Pradesh is zone II.
It is noteworthy that not only the actual taking of wheat from out of any place within a zone to a place outside, but also attempting or abetting such export, is an offence. In dealing with this aspect, the learned Judge has observed that the sandy part of the river Pahuj being within the area of mouza KhiriaJhansi, the carts had not actually crossed the border as they were still on this side of the river in the State of Madhya Pradesh, and, therefore, the accused had not exported the wheat outside that State, but he has fallen into an error in assuming that the accused had not attempted to export the wheat across the border. In our view the action of the accused was clearly an attempt to export, and it did not fall under any of the exemptions mentioned in Section 3, and, there-fore, their conviction for the offence of contravening Section 3 of the Inter Zonal Wheat and Wheat Products (Movement Control) Order, 1964, should have been upheld.
7. From the evidence of the prosecution witnesses It is clear that the carts in which the accused were carrying wheat, were stopped by the authorities at a place within the State of Madhya Pradesh itself. i.e.. on this side of the Pahuj river, i.e., before they had actually cross ed the border of the State, The question is, whether there was an attempt to commit a crime or whether there was only 'preparation' for it. The dividing line between a mere preparation and an attempt to commit a crime may be rather thin in some cases and the question, whether there has been an attempt or only a preparation to commit it has to be decided on the facts of each particular case.
8. In the State of Madhya Bharat v. Narayan Singh. AIR 1953 Madh Bha 216 the Madhya Bharat High Court, while dealing with this question, were apparently of the view that merely because seizure was at a place two furlongs from the border of the Central Provinces that, by itself, was not sufficient to infer that the accused there were attempting to export grain without a permit The learned Judges were dealing with a case of which the facts were entirely dissimilar to those of the one before us. In Narayansingh's case. AIR 1953 Madh Bha 216 it was proved by the prosecution evidence that the seizure was effected while the carts were on their way to Karondiya Basoda in the State of Madhya Bharat itself, although it was at a distance of two furlongs from the border of the Central Provinces. From these circumstances, it was held that it could not be inferred that the accused were attempting to export without permit because they might be taking the wheat to Karondiya Basoda in Madhya Bharat. That, however, is not the case here. The carts were seized after they had crossed the river bank of Pahuj into the river-bed itself, while they were nearing the border between the two Stales. Although the carts were on the river-bed, on this side of the river Pahuj within the State of Madhya Pradesh, nevertheless, they were actually seized while they were proceeding towards the State boundary, and it can hardly be denied that the seizure was effected while the accused were attempting to export the wheat from a place within Zone III to a place outside It. The Mysore High Court in Baburao Balwant v. State of Mysore, 1962 (1) Cri LJ 830 (Mys) followed that decision without noticing its distinguishing features. We are unable to apply the dictum that in all cases theact of taking wheat-laden carts towards the State border, is merely, a 'preparation', for the eventual export, and not an attempt, which is a crime, in furtherance of it. Where is the question of any locus poenitentiae in a case like this, where the prevention of export is not due to any volition on the part of the accused but is on account of an extraneous cause, namely the seizure of grain.
9. The matter came up for consideration before a Special Bench of three Judges of the Orissa High Court in State of Orissa v. Hari Charan. AIR 1950 Ori 114 (SB) and their Lordships held that where the thing done is such, as if not prevented by any extraneous cause, would fructify into commission of an offence, it would amount to an 'attempt' to commit the offence. In somewhat similar circumstances, a person travelling from Puri to Howrah in train with new doth weighing 14 Ibs which was seized Inside the compartment as part of his personal luggage, was held guilty of having attempted to transport cloth, in breach of the restrictions. During the course of their judgment, their Lordships have adverted to all the authorities on the subject, and we would respectfully follow the view expressed by them, for the reasons stated. A similar view has also been taken by that Court in the King v. Tustipada Mandal. AIR 1951 Ori 284 where under like circumstances a person was held guilty of attempting to transport cattle in breach of Clause 3 of the Orissa Live Stock (Control of Movement and Transactions) Order, 1947. Similarly, in Vaikuntham Jaganadharo v. State of Orissa AIR 1952 Ori 164, a lorry laden with rice was seized 28 miles from the Madras border, and it was held to be a clear case of attempt to transport rice without a proper permit from the authorities. The mere possibility that before the lorry crossed the Orissa border, the accused might have changed his mind and thrown away the rice somewhere in Orissa, was held not sufficient to indicate that the act complained of was still in preparatory stage and had not ripened into an attempt to commit the offence. Now. Section 3 of the Movement Control Order makes an attempt to move or transport wheat without a permit as good an offence as the completed acts of movement or transport from inside the (State to a place outside. We would, accordingly, hold the accused guilty of having contravened Section 3 of the Inter Zonal Wheat and Wheat Products (Movement Control) Order, 1964.
10. As regards the contravention of Section 4(b) of the Movement Control Order, 1964, we are clearly of the view that the learned Judge is not right in holding that the taking of Wheat-laden carts to river Pahuj, resulted in movement of wheat within the same village area and thus protected under Section 6 (vii), or, that the movement of grain with the intention of sale to Chirgaon which is the nearest Mandi from the Zonal border area, was covered by the exemption under Section 6 (vii). The provisions contained in Clauses (iii) and (vii) of Section 6 are not attracted to the present case.
Clause (iii) applies when the movement of wheat is within the same town or village in the Zonal border area. In the instant case, the movement was not within the village but was an attempt to export wheat outside the Zonal border area. As per Section 4, all movement of wheat within the Zonal border area is restricted subject to the exceptions in Section 6. The act of the accused was clearly an attempt with the clear intention to export wheat outside the zone which was in contravention of Section 3 of the Movement Control Order as well Section 4 thereof. Clause (iii) would apply where the movement is from one place in the village to another, i.e., within the same village area, where such movement, is necessary for purposes of sale or consumption therein. But, the exemption under Clause (iii) obviously has no application to a case like this where the movement was towards a place outside the village area.
Clause (vii) has no application to the statutory bar against export of food grains created by Section 3. The view taken by the learned Judge that the exemption under Clause (vii) permits the movement of wheat to an area outside the Zonal border area in furtherance of commercial commitment. if accepted, would defeat the very purpose of creating the Food Zones in the country and the placing of restrictions on export and movement of essential commodities. Clause (vii! does not permit movement of grain from one State to another. The Mandi as contemplated by Clause (vii) must be within the same Zone itself and not outside it. The interpretation placed by the learned Judge on the above clause, is against the plain meaning of the words used, and defeats the very object Of the Essential Commodities Act, 1955, and cannot, therefore, be accepted.
11. The result is that the appeal succeeds and is allowed. The order of acquittal passed by the learned Sessions Judge is set aside, and, the accused is convicted under Section 7 of the Essential Commodities Act, 1955, for having attempted to export wheat in contravention of Sections 3 and 4 of the Inter Zonal Wheat and Wheat Products (Movement Control) Order. 1964. Looking to the circumstance that nearly three years have passed since the commission of the offence and the fact that we are settingaside an order of acquittal, we would refrain from maintaining the sentence passed by the Magistrate First Class, Bhander, and would, instead, modify the same to the period already undergone. The sentence of fine of Rs. 200/-, or, in default Rigorous Imprisonment for four months, is, however, maintained. We would also direct that the wheat seized from the accused or, its sale proceeds, shall stand forfeited to the State Government of Madhya Pradesh.