1. Six persons were proceeded against under Rules 68(4), 118 of the Jammu & Kashmir Defence Rules in the Court of the Addl. District Magistral's Kathua, who after trial convicted all the six persons to six months' rigorous imprisonment and to a fine of Rs. 100/- each. On appeal, the learned Sessions Judge Jammu acquitted two accused person; by name, Chhaju Ram and Babu Ram, but maintained the conviction of the other four accused and reduced their sentence of imprisonment to the one already undergone. The learned Sessions Judge also remitted, the sentence of fine in regard to Dharam Singh. As regards the remaining three accused, the learned Sessions Judge maintained their sentence of fine and he also maintained the order with regard to confiscation and forfeiture of ghee.
2. The facts of the case, as found by the learned Sessions Judge are3 that the accused persons with a view to smuggle out of the State certain quantity of ghee in contravention of the orders prohibiting export of this commodity, carried 64 tins of ghee in a truck No. J & K 1803 towards Jammu side and unloaded them at a place 8 or 9 miles from Lakhanpur towards Jammu side. There the tins were kept hidden underneath some bushes growing around. The finding further is that at about 4 O'clock in the morning of 15th Katik 2008 an empty military vehicle was seen coming from the Easantpur canal road and going towards Jammu side. Dewan Jia Lal Deputy Superintendent Customs who saw the military truck going towards Jammu side, suspected that this truck might be used for smuggling out ghee. Dewan Jia Lal, believing that the truck might return back with the tins of ghee, blocked the road with the idea that the vehicle carrying the ghee if at all it comes, would not be able to proceed further. In the meanwhile information was carried to Dewan Jia Lal that a number of tens of ghee that were kept hidden underneath the bushes at a distance; of 8 or 0 miles towards Jammu side were being loaded on a military truck. After same time at about 5-30 A.M. ho saw that a military truck was coming at every high speed from Jammu side which in spite of signal being given, did not stop, but proceeded further and only stopped when it found its way blocked. The result was that the truck was brought back to Lakhanpur wherefrom 64 tins of ghee were recovered. complaint was lodged against the accused persons with the above result.
3. So far as the facts found in the case are concerned, there can be no dispute. But the question is as to whether these facts constitute an offence under Rule 68/118 of the Defence Rules. Rule 68 of the Defence Rules lays down that
taking out of the State any goods the export of which has been stopped is an offence punishable under Sub-rule (4) of the same rule.
Now export of ghee has been stopped under the Ghee Control Order of 1999. Under Rule 118 of the Jammu and Kashmir Defence Rules any person who attempts to contravene the provisions of Rule 68 or any other defence rule shall also be deemed to have contravened that provision. Now in this case we find that the ghee was not taken out of the State, and as such the offence of exporting cannot be said to have been committed. It is, however, argued that the action of the accused persons comes within the mischief of Rule 118 of the Jammu and Kashmir Defence Rules which makes an attempt at contravention punishable. The question then arises as to whether the action of the accused persons comes within the purview of the definition of an attempt.
In this behalf I might with advantage quote from a judgment of mine reported as - Mt. Nooi Bihi v. State AIR 1952 J & K 55(A) wherein I have held that
Before the commission of an offence, an accused has got to go through three preliminary stages: first that of intention to commit the offence, secondly preparation to commit and thirdly, attempt to commit it. Mere intention to commit an offence is not punishable. Nor is the preparation to commit it. It is only when the preparation merges itself in attempt that the act becomes punishable by law.
4. The learned Assistant Advocate General argues that this action of the accused persons was clear attempt on their part to commit an offence under Rule. 68, I am afraid I cannot agree with him. The accused may have an intention in commit an offence of exporting ghee out of the State territory, but, as already stated, mere intention is not punishable at law.
5. Then we have found that the accused persons were apprehended very far away from the Ravi Bridge, by crossing over which they would have reached the Punjab territory. They had not attempted to cross the border or even the bridge, & as such their going towards the bridge was merely a preparation to cross the bridge. Before they had reached the bridge, the possibility cannot be excluded that the accused might have repented of their intention and changed their mind and never attempted to curry the ghee across the forbidden line. Under these circumstances the accused are clearly entitled to benefit of doubt.
6. In - Narayanaswami Pillai v. Emperor AIR 1932 Mad 507 (B) the accused was found travelling In a bus to Tranquebar carrying 165 tolas of opium which somebody had given to him at Chidambaram with instructions to meet him at a place in French Territory and to give it to him. The accused in this case was charged under Section 7 read with Section 20, Dangerous Drugs Act. In this case it was held by Walsh J. that 'there was no attempt to commit the crime but more preparation for its committal.'
The learned Judge in the concluding portion of his judgment states that
It seems to me that he (accused) must be given the benefit of doubt that he might have repented of his intention before reaching the French Territory.
7. This case is quite on all fours with the present case. The accused persons along with the ghee were apprehended in the State territory and not a step was taken by them towards crossing the border. The case would have been however, different if they were apprehended while crossing the border.
8. I, therefore, have no hesitation in extending the benefit of doubt to the accused persons. I accept this Revision application and order that the accused persons be acquitted. Fine if paid, must be refunded. The order of forfeiture of ghee is also set aside.