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Baburao Balwant Kurubet Petitioner v. The State Of Mysore .
Legal Opinion Summary
Factual and Procedural Background
This Criminal Revision Petition challenged the judgment of the Sessions Judge, Belgaum (Criminal Appeal No. 94 of 1959), which confirmed the conviction and sentence imposed by the Judicial Magistrate First Class, Hukkeri (Criminal Case No. 543 of 1958), and which also confirmed an order confiscating the amount realised by the sale of rice bags seized from the petitioner's truck.
On 23 April 1958 a Head Constable stopped the petitioner's truck near the toll-naka of Sankeshwar and found 64 bags of rice. The Head Constable acted on information that the petitioner was transporting rice to the State of Bombay. The police seized the bags and a charge-sheet under Section 7 of the Essential Commodities Act, 1955, was preferred.
The petitioner's stated defence was that the rice (64 bags) was being taken to Nipani and that the bags belonged to two witnesses (D.W. 1 and D.W. 2). The Magistrate rejected the defence, concluded the petitioner was transporting the rice to the State of Bombay without a licence, convicted him, imposed a fine of Rs. 600 (with one month simple imprisonment in default), and directed confiscation of the money realised by sale of the rice. The Sessions Judge dismissed the appeal and confirmed the conviction, sentence and confiscation. The petitioner filed the present revision petition against that confirmation.
Legal Issues Presented
- Whether, on the facts proved in the case, the petitioner could be found guilty of the offence punishable under Section 7 of the Essential Commodities Act — specifically, whether transporting rice toward the State border (and being stopped near the border) without evidence of actual exportation out of the State amounts to an offence under Section 7.
- Whether the order of confiscation of the proceeds of sale of the seized rice should be sustained if the conviction under Section 7 cannot be supported.
Arguments of the Parties
Petitioner's Arguments (as advanced by Mr. Krishnaswami Rao)
- The lower courts were wrong to assume without basis that the truck was proceeding to the State of Bombay.
- The petitioner gave credible, unimpeached evidence that he was proceeding to Nipani and that the 64 bags belonged to D.W. 1 and D.W. 2 (the owners), and he was merely a carrier for hire.
- An important factor overlooked by the courts was that the house of D.W. 1 (Appanna), owner of 33 bags, lay beyond the toll-naka and the petitioner had been requested to take him on the way to Nipani; this could explain the vehicle's route.
- Even if the vehicle was proceeding toward the border, the petitioner had not in fact transported the rice out of Mysore State; he might have changed his mind (existence of locus penitential). Liability under Section 7 requires more than mere preparation or movement in the border direction; actual export or attempt to export must be established.
- Reliance was placed on several decisions (including State v. Narain Singh, Narayanaswami Pillai v. Emperor, and the Madras decision in re: Bavaji alias Abdul Muhammad) for the proposition that an act which is only preparation or where there was a locus penitential does not constitute a punishable attempt to export.
State's Arguments (as advanced by Mr. Shankara Chetty, Addl. Asst. Advocate-General)
- The vehicle could not, after crossing the toll-naka at Sankeshwar, proceed to Nipani; Nipani lay in the opposite direction to that in which the vehicle was proceeding.
- The courts below properly rejected the petitioner's account and found as a matter of fact that the 64 bags belonged to the petitioner, were loaded in his truck, and the vehicle was proceeding on the road that leads to the State of Bombay. Those findings of fact supported the conviction under Section 7.
- The State did not advance any decision that took a contrary view to the Madras decision relied upon by the petitioner.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| State v. Narain Singh (Madhya Bharat High Court) | Where a conveyance was stopped within the State (about two furlongs from border) and the place was on the way to a village within the same State, it was held that the accused had not exported the grain and could not be held to be attempting to export without a permit. | The petitioner relied on similarity of facts. The court considered this authority as supportive of the petitioner's contention that stoppage short of the border did not establish export or attempt to export. |
| Narayanaswami Pillai v. Emperor | Distinguishes 'attempt' from 'mere preparation'; whether there was an attempt is a question of fact; presence of locus penitential (possibility of changing one's mind) is important in deciding whether an act is only preparation. | The court cited the decision's observations (including examples such as Queen Empress v. Ramakka) to support the proposition that mere movement towards committing an offence may be only preparation if there existed a realistic possibility of renunciation. The court found this reasoning relevant to the case at hand. |
| Queen Empress v. Ramakka (cited in Narayanaswami Pillai) | Illustrative authority: conduct which is stopped before the commencement of the criminal act may not amount to an attempt (example given of a woman running to a well to commit suicide who was stopped). | Referred to by the courts in discussion of locus penitential and the distinction between attempt and preparation; used as an illustrative principle in assessing whether there was an attempt to export rice. |
| R. Mac Crea (cited in Narayanaswami Pillai) | Authority cited as going the other way on similar questions about attempt; used to show nuance in jurisprudence. | Mentioned by earlier courts/judges as a contrasting decision; the present court noted the existence of differing views but emphasised the reasoning it found persuasive. |
| Re: Bavaji alias Abdul Muhammad (Govinda Menon, J., Madras) | To constitute an attempt there must be intention, commencement of commission and an act done towards commission; mere intention or preparation is not punishable; locus penitential is an important consideration. | The court stated it was impressed with Govinda Menon J.'s reasoning in the Madras case and accepted that the prosecution had failed to establish an attempt to transport the rice out of the State. The court relied on these principles in allowing the revision petition. |
| A.I.R. 1932 Mad. 507 (as referred) | Referenced as earlier observations supporting the distinction between attempt and mere preparation and the role of locus penitential. | Referred to by the court as part of the chain of authorities (via Govinda Menon's reliance) that supported the view that an attempt had not been established. |
Court's Reasoning and Analysis
The court proceeded in two analytical stages that are reflected in the opinion.
- Findings of Fact: The court acknowledged the limits of revision jurisdiction on matters of fact. It accepted that it could not interfere with the lower courts' factual finding that the petitioner's defence (that the rice belonged to others and was being carried to Nipani) was not established. On that basis the court proceeded on the factual assumptions that (a) the 64 bags belonged to the petitioner, (b) they were loaded into his truck, (c) the vehicle was proceeding on a road that led towards the State of Bombay, and (d) the vehicle was stopped near Sankeshwar toll-naka by the Head Constable.
- Legal Question — Attempt versus Preparation / Actual Export Required: The central legal question was whether, on the facts so proved, the petitioner could be held guilty under Section 7 of the Essential Commodities Act. Counsel for the petitioner argued that unless the prosecution proved that the rice had in fact been transported out of the State (or at least that there was an attempt to export), the mere movement towards the border or being stopped near the toll-naka did not constitute an offence. The court considered authorities emphasising the distinction between mere preparation and an attempt, and the importance of locus penitential (the possibility of repentance or abandonment before commission).
Weighing the precedents (including the Madhya Bharat decision in State v. Narain Singh and the Madras reasoning in re: Bavaji alias Abdul Muhammad as explained through Narayanaswami Pillai v. Emperor), the court stated that it was impressed with the Madras reasoning and concluded that the prosecution had not established that the petitioner was attempting to transport the rice out of the State into the State of Bombay. On that basis the court held that the conviction could not be supported.
Holding and Implications
Revision Petition Allowed; Conviction and Sentence Set Aside.
Consequences expressly ordered by the court:
- The Criminal Revision Petition was allowed.
- The conviction and sentence passed against the petitioner were set aside.
- The order of confiscation was set aside; the money realised by the sale of the 64 bags of rice was ordered to be paid to the petitioner.
- If the fine had been paid, it was to be refunded to the petitioner.
On broader implications, the court applied existing authorities concerning the distinction between mere preparation and an attempt (and the relevance of locus penitential) to the facts of this case; the opinion did not purport to lay down a new principle beyond applying those authorities. The direct effect is the quashing of conviction, sentence and confiscation in this particular matter.
This Criminal Revision Petition is directed against the judgment of the Sessions Judge, Belgaum, in Criminal Appeal No. 94 of 1959 confirming the conviction and sentence passed against the petitioner for an offence under Section 7 of the Essential Commodities Act, by the Judicial Magistrate First Class, Hukkeri, in Criminal Case No. 543 of 1958. The learned Sessions Judge also confirmed the order passed by the learned Magistrate confiscating to the State the amount realised by the sale of the rice bags seized from the truck belonging to the petitioner.
The petitioner was found transporting 64 bags of rice in his truck on 23rd of April 1958 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. It is on that information he was lying in wait for the petitioner near the toll-naka and immediately the truck came near the toll-naka he stopped the vehicle and found 64 bags of rice in it. After necessary formalities the bags of rice were seized and a charge-sheet for an offence punishable under Section 7 of the Essential Commodities. Act, 1955 was placed against the petitioner in the court of the Judicial Magistrate First Class, Hukkeri the defence of the petitioner was that he was transporting these 64 bags of rice to Nipani and that those bags belonged to D.Ws 1 and 2 examined, by him. The learned Magistrate did not accept the defence of the petitioner. He held that the version given by the petitioner that he was proceeding to Nipani and intended to unload the bags of rice at Nipani was false. The learned Magistrate held further that the indications were that the petitioner was transporting 64 bags of rice to the State of Bombay without a licence and had thereby infringed Section 7 of the Essential Commodities Act, 1955. The learned Magistrate convicted the petitioner and sentenced him to pay a fine of Rs. 600 and in default of the payment of fine to suffer simple imprisonment for one month. The learned Magistrate further directed that the amount realised by the sale of 64 bags of rice seized by the Police should be confiscated to the Government. The petitioner preferred an appeal against his conviction and the order of confiscation to the Sessions Judge, Belgaum, in Criminal Appeal No. 94 of 1959. The learned Sessions Judge dismissed the appeal. It is against this judgment confirming the conviction and sentence passed against the petitioner and also the order directing the confiscation of the amount realised by the sale of 64 bags of rice that the present revision petition has been filed by the petitioner.
It is contended by Mr. Krishnaswami Rao, the learned counsel for the petitioner, that the courts below were entirely wrong in assuming without any basis that the truck in which the bags of rice were being carried was proceeding to the State of Bombay. He urged that the courts below were entirely wrong in rejecting the unimpeachable evidence adduced by the petitioner to establish that he was taking the bags of rice to Nipani and that they belonged to D.Ws 1 and 2 examined by him. It was urged that the courts below had failed to notice one important factor in arriving at the conclusion that these 64 bags of rice were intended to be transported to the State of Bombay, that is, that the house of D.W 1 Appanna, who was the owner of 33 bags of rice which had been loaded in the truck, is situated beyond the toll-naka and that according to the petitioner D.W 1 Appanna had requested him to take him from his house on his way to Nipani and it is for that reason the petitioner was proceeding towards the house of D.W 1 Appanna. There is some doubt as to whether the house of D.W 1 Appanna is beyond the toll-naka or not. No doubt one of the prosecution witnesses has admitted the fact that the house of D.W 1 Appanna is beyond the toll-naka but as to whether if one proceeds towards the house of D.W 1 Appanna he can reach the road leading to Nipani is not made clear by him. It is contended by Mr. Shankara Chetty, the learned Addl. Asst. Advocate-General for the State, that it was not possible for the vehicle to go to Nipani after crossing the toll-naka at Sankeshwar. According to him Nipani lies in the opposite direction and not in the direction in which the vehicle was proceeding. The courts below have rejected the contention of the petitioner that the bags of rice in question belonged to D.Ws 1 and 2 and that the petitioner was only a carrier for hire and that he was actually carrying the bags of rice to Nipani. This is a finding of fact. Whatever be the force in the contention of Mr. Krishnaswamy Rao, I am afraid sitting on the revision side I cannot interfere with this finding of fact. Therefore, we must proceed on the basis that 64 bags of rice belonged to the petitioner; that he had loaded them into his truck and was proceeding in the road that leads to the State of Bombay; that the vehicle was stopped near Sankeshwar toll-naka by the Head Constable who was on duty near the place and that the defence of the petitioner that he was taking these bags of rice to Nipani has not been established.
The question for consideration is, whether on the facts proved in the case, the petitioner can be found guilty of the offence punishable under Sec. 7 of the Essential Commodities Act. It is urged by Mr. Krishnaswami Rao, the learned counsel for the petitioner, that even assuming for the sake of arguments the petitioner was actually transporting these bags of rice in contravention of Sec. 7 of the Essential Commodities Act, the act of the petitioner cannot amount to an offence inasmuch as he has not actually transported the bags of rice out of Mysore State. In other words his contention is that it is quite possible for the petitioner to have changed his mind and as a good citizen brought back the bags of rice to the State of Mysore. It is admitted that the border of the State of Bombay is about a mile away from the toll-naka at Sankeshwar. It is, therefore, urged by Mr. Krishnaswamy Rao that because the vehicle was proceeding in the direction of the state of Bombay and was stopped at the toll-naka at Sankeswar it cannot be presumed that the petitioner would have proceeded towards Gadhingalaj side and entered the State of Bombay and that until and unless it is established that the petitioner had in contravention of the provisions of Sec. 7 of the Essential Commodities Act, in fact transported them out of the State, he cannot be held liable under Sec. 7 of the Essential Commodities Act. In support of this contention Mr. Krishnaswami Rao relied upon the decisions of the several High Courts. In The State v. Narain Singh(1) a division Bench of the Madhya Bharat High Court dealing with a case somewhat similar to the one before me observed as follows.:—
“From the evidence of the prosecution witnesses themselves, it is clear that the cart in which the respondents were carrying wheat and jawar was stopped by the authorities at a place in the Madhya Bharat itself and that this place which was at a distance of about two furlongs from the border of the Central Provinces was also on the way to Karnodia Basoda a village situated in the Madbya Bharat itself. It is clear from this evidence that the accused had not exported the food grain to Central Provinces. It cannot be held from this evidence that the accused were attempting to export without a permit the wheat and jawar which was in their cart.”
It was strenuously contended by Mr. Krishnaswami Rao that the facts in the instant case are similar to the facts established in the case that was before their Lordships of the Madhya Bharat High Court and that the tests applied by their Lordships in that case should be applied in this case and it should be held that the prosecution had failed to establish that the petitioner was exporting the bags of rice to the State of Bombay. The next decision on which reliance was placed is one in Narayanaswami Pillai v. Emperor(2), wherein Walsh, J., dealing with a case in which a person was found carrying opium in contravention of the provisions of the Dangerous Drugs Act, held that the question whether there was attempt to commit a crime or whether there was only ‘preparation’ for its committal is a question of fact which must be decided on the facts of each case. In the course of his judgment the learned Judge made the following pertinent observations:—
“In the present case I think there is no doubt that there was nothing more than a preparation…One important consideration is such case is whether there was a locus penitential…How far this can be stretched in favour of the accused is seen from Queen Empress v. Ramakka where a woman ran to a well evidently with the intention of committing suicide and was stopped and it was held that this was not an attempt to commit suicide. In the matter of R. Mac Crea seems to be a case which has gone for in the other direction; but even there it is stated at p. 180:
‘Again the attempt once began 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’.
It is on the basis that in that case there was likelihood of the petitioner changing his mind and was not transporting the opium. His Lordship allowed the revision petition and acquitted him. Govinda Menon, J. (as he then was) in re: Bavaji alias Abdul Muhammad, dealing with a case failing under Sec. 7(i) of the Essential Supplies (Temporary Powers) Act, observed as follows:—
“In order to constitute an attempt to commit on offence there must first, of all be an intention to commit the crime, a commencement of the commission and an act done towards the commission. Neither the mere forming of the intention to commit the crime nor the mere preparation for an offence is punishable. The dividing lines 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 is to be decided on the facts of each particular case. One important consideration in such case is whether there was a locus penitential.”
In arriving at this conclusion his Lordship relied upon the observations referred to above in A.I.R 1932 Mad. 507. In the case before His Lordship, as in this case, it was proved by the prosecution that four carts carrying paddy were found near a river flowing between the Tanjore and the Trichinopoly Districts and at a distance of six furlongs from the Bank and near a place used as a cart track to proceed to Trichinopoly District. It is on the basis that he was transporting paddy to Trichinopoly District the prosecution placed a charge-sheet against the petitioner in that case and he was convicted by the Addl. First Class Magistrate, Kumbakonam. The conviction and sentence passed against the petitioner were confirmed in appeal by the Sessions Judge, West Tanjore. Govinda Menon J. allowed the petition holding that it is quite possible that the four carts were, intended to go to Kumbakonam to deliver the paddy as suggested by the accused. Mr. Shankar Chetty, the learned Additional Assistant Advocate-General appearing for the State, has not been able to cite any decision before me which has taken a contrary view. I am impressed with the reasons adopted by His Lordship in the Madras case. I am of the opinion that the prosecution had failed to establish that the petitioner was attempting to transport these 64 bags of rice from out of this State into the State of Bombay. The conviction of the petitioner cannot be supported and is liable to be set aside.
In the result, therefore, for the reasons stated above this Criminal Revision Petition is allowed. The conviction and sentence passed against the petitioner are set aside. The order of confiscation passed also is set aside and the money realised by the sale of these bags of rice is ordered to be paid to the petitioner. The fine amount, if paid, shall be refunded to the petitioner.
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