1. The petitioner was according to the prosecution case, found by P. W. 1, the Excise Sub-Inspector, travelling in a bus to Tranquebar carrying 165 tolas of opium which he said one Nayakar had given him at Chidambaram with instructions to meet him at Karaikal, in French Territory and give it to him. It is immaterial whether this statement to the Sub-Inspector is inadmissible because the accused stated the same thing in his written statement. He was first charged Under Section 9(a) and (b), Opium Act, and evidence was recorded. But the charge was subsequently altered to one Under Section 7 read with Section 20, Dangerous Drugs Act. The main contention in the revision petition, is that assuming the prosecution case to be true, this was not an attempt to commit an offence but a mere preparation. The village at which the accused was found in possession of the opium was Tirukadayur. This village is at some distance from Tranquebar to which the bus was proceeding from Mayavaram. Mayavaram, Tirukadayur and Tranquebar are all in British territory. In order to go to Karaikal the accused had to get down at Tranquebar which is six or seven miles from Karaikal.
2. The question of what constitutes 'attempt' Under Section 511, I. P. C. has been fully set out in Mayne's Commentary, Edn. 4, at p. 933 as follows;
Prior to the completion of a crime three stages may be passed through. First, an intention to commit the crime may be conceived. Secondly, preparation may be made for its committal. Thirdly, an attempt may be made to commit it. Of these three stages the mere forming of the intention is not punishable under the Penal Code. Nor is the preparation for an offence indictable. The law will not take notice of an intent without an act.
3. Again at p. 940 he states:
From the foregoing remarks it will appear, that to constitute an attempt, there must be an intention to commit a particular crime, a commencement of the commission, and an act done towards the commission.
4. It is clear that the matter must be decided on the facts of each particular case and in some cases the dividing line may be rather thin. In the present case I think there is no doubt that there was nothing more than a preparation. In the matter of Riasat Ali  7 Cal. 352, Queen-Empress v. R. makka  8 Mad. 5 and Queen-Empress v. Baku  24 Bom. 287 are quoted for the petitioner. On the other side are quoted Queen-Empress v Laxman  2 Bom. L.R. 286 and Queen-Empress v. Vinayak  2 Bom L. R. 304 and In the matter of R. MacCrea  15 All. 173. The two Bombay cases related to publishing seditious articles and it was argued that because the public might not read them, there was only preparation to commit an offence and no attempt but it is clear that so far as the accused was concerned the matter had passed beyond his control. One important consideration in such cases is whether there was a locus penitentiae. How far this can be stretched in favour of the accused is seen from Queen-Empress v. R. makka  8 Mad. 5 where a woman ran to a well evilently with the intention of comrniting suicide, and was stopped and it was held that this was not an attempt to commit suicide. In the matter of R. MacCrea  15 All. 173 seems to be a case which has gone far in the other direction; but even there it is stated at p. 180;
Again, the attempt once begun and a criminal act done in pursuance of it towards the commission of the act attempted, does not cease to be a criminal attempt, in my opinion, because the person committing the offence does or may repent before the attempt is completed.
5. In the present ease there was no criminal act done, unless one accepts the suggestion of the learned Public Prosecutor that being in possession of the opium is itself a criminal act. But the accused has not been charged with being in possession of opium and I think it would be altogether unfair to raise a question of fact of this sort as to whether he had opium in excess of the quantity allowed. That was not the charge against him and he had not to answer that. It seems to me that this is a very clear case where there was no attempt, even if the accused intended to transport this opium into French Territory. It was not a case of his being caught at the final stage. There are probably many passengers for instance, who embark at Calais for Dover intending to smuggle contraband articles but on their way determine either to declare them or else abandon them: such intentions are obviously not attempts to commit an offence Under Section 511.
6. Such cases are stronger than the present because the passengers have taken tickets to the very place where the intended smuggling is to take place. This is a far weaker case for the prosecution. The accused had to leave the bus at Tranquebar and then to make a journey of six or seven miles before he could get to Karaikal. It seems to me that he must be given the benefit of the doubt that he might have repented of his intention before reaching French Territory.
7. As I take this view, it seems to me unnecessary to discuss the point raised whether the prosecution had to prove that the opium was not prepared opium (as regards which there appears to be no evidence) or whether it was for the accused to prove this by way of defence. On the facts of this case and in the light of the cases quoted I allow this revision petition, and set aside the conviction. Petitioner's bail bonds will be cancelled.