This article is written by Pujari Dharani. This article provides a case analysis of Malkiat Singh & Anr. vs. State of Punjab (1968) by explaining the facts of the case, the legal provisions involved, arguments from both parties and, in the end, the judgement and the court’s rationale behind such decision. The articles also provides cases where Malkiat Singh was relied upon and similar cases on the Essential Commodities Act, 1955.

This article has been published by Shashwat Kaushik.

Introduction

Any offence goes through four stages, namely, intention, preparation, attempt, and commission of the offence. Often, the first two stages are not punishable. The attempt is a stage just before the offence is committed by the offender and the same may be punishable if the legislature enacts the same in any statute. Though the preparation and attempt stages are clearly distinguished as far as the punishment is concerned, in a practical scenario, it is difficult to determine whether the acts of the accused are just a preparation or an attempt. The same issue came before the Supreme Court in the case of Malkiat Singh & Anr. vs. State of Punjab (1968). Let us look at how the court dealt with this question and decided the case.

Details of the case

1. Name of the case – Malkiat Singh & Anr. vs. State of Punjab (1968)
2. Case number: Criminal Appeal No. 186 of 1966.
3. Date of the judgement – November 8th, 1968
4. Parties of the case –
   1. Appellants: Malkiat Singh and Babu Singh
   2. Respondent: State of Punjab
5. Citation –  AIR 1970 SC 713; 1959 SCR (2) 663; 1969 SCC (1) 157
6. Court – Hon’ble Supreme Court of India
7. Provisions and statutes involved – Sections 3 and 7 of the Essential Commodities Act, 1955, and the Punjab Paddy (Export Control) Order, 1959
8. Bench – Justice V. Ramaswami, Justice J.C. Shah, and Justice A.N. Grover

Facts of the case

On October 18, 1961, Qimat Rai, on behalf of Messrs Sawan Ram Chiranji Lal, contracted to get the consignment of paddy from Makerkotla and the consignee was Messrs Devi Dayal Brij Lal, a Delhi resident. This was proved by evidence, i.e., a letter, which was alleged by the prosecution to be given by Qimat Rai to the consignee, where it was stated that Sawan Ram and Chiranji Lal were partners of Messrs.

On October 19, 1961, Malkiat Singh (appellant no. 1) drove a truck, whose number is P.N.U. 967, and the cleaner of that truck is Babu Singh (appellant no. 2). The truck was used to export 140 maunds of paddy in 75 bags; this was alleged by the prosecution to be a violation of the law. Thus, the Sub-Inspector of the Food and Supplies Department, Banarasi Lal, who was near Samalkha Barrier, which is 32 miles from Delhi, stopped the truck and took the same, along with paddy bags, into their custody. A case was lodged against the two appellants, namely, Malkiat Singh (the driver of the truck) and Babu Singh (the cleaner of the truck), the partners of Messrs Sawan Ram, Chirnaji Lal, and Qimat Rai.

Prior proceedings

The case came before the Trial Court. During the criminal proceedings, the following facts were accepted by Malkiat Singh (appellant no.1).

1. He testified that a transport company gave him the paddy bags to transport to Delhi.
2. He also stated that the transport company gave him a document stating that it was a letter, by showing the same, he would be allowed to make the said transportation of paddy bags. However, it was later found that the said letter did not possess the authority to transport but was a mere personal letter by Qimat Rai to the commission agents in Delhi.

The Trial Court convicted all five accused persons in this case and then it was appealed to the additional sessions judge to set aside the conviction of Sawan Ram and Chirnaji Lal and upheld the conviction of Qimat Rai, Malkiat Singh, and Babu Singh. The conviction of these three accused persons led to a revision petition in the High Court of Punjab, which was later dismissed on November 4, 1965.

The appellants in this case, namely, Malkiat Singh and Babu Singh, appealed this criminal case to challenge the High Court’s decision of dismissal of the case before the Supreme Court of India.

Issue raised in the case

The issue before the Supreme Court in this case that had to be resolved was:

• Whether the appellants committed any wrong as per the facts found by the lower courts?

Legal provisions involved in the case

The Supreme Court, before addressing the issues raised in this case, discussed a few relevant legal provisions under the Essential Commodities Act, 1955 (hereinafter mentioned as “the Act”) necessary for the current purpose. Those provisions are explained below.

Essential Commodities Act, 1955

Section 3(1) of Essential Commodities Act

As per Section 3(1) of the Act, the Central Government, for any of the following purposes, is allowed to regulate or prohibit the trade and commerce, including the production, supply, and distribution of any essential commodities.

1. For maintenance or increase of supplies of any essential commodity; or
2. For securing the equitable distribution of any essential commodity and also to ensure their availability at reasonable prices; or 
3. For securing any essential commodity for defending our nation India or the efficient military operations.

Sub-sections (1) and (2) of Section 7 of Essential Commodities Act

Violation of orders by the Central Government

As already explained above the Central Government can issue an order to regulate or prohibit trade and commerce of any essential commodity under certain conditions. The said Act also provided penalties for violation of such orders under Sub-section (1) of Section 7. The penalties provided under this clause are given below.

1. The following are the imprisonment punishments.
   1. If an order under Clause (h) or Clause (i) of Sub-section (2) of Section 3 is violated by the accused, he/she will be convicted for such violation and will be sentenced to imprisonment for a period of up to one year and will also be liable to pay a fine; and
   2. If any other order is infringed by the accused, he/she will be convicted and punished with imprisonment for a period of a minimum of three months and a maximum of seven years and shall also be liable to pay a fine.

The court adjudicating the case of violation of orders can also impose less than three months imprisonment on the convict, provided the conviction order by such court shall be a speaking order i.e., sufficient reasons for taking such decision must be provided in the judgement.

2. The property, that was used by the wrongdoer to violate the order of the Central Government, should be forfeited to the government by the wrongdoer.
3. The following forfeiture can be made at the discretion of the court.
   1. Any object used for the packaging of the property or commodity in question shall be forfeited to the government if the said commodity was found in that object; and 
   2. Any animal, vehicle, vessel or any other conveyance used for transporting the commodity shall be forfeited to the Government.

Violation of direction

As per Sub-section (4) of Section 3, the Central Government, if it thinks such an order is necessary for the maintenance and increase of production and supply of any essential commodity, can pass an order authorising a person, named “authorised controller”, to exercise control over the undertaking or contract. As per Clause (b) of Sub-section (4) of Section 3, an undertaking should be performed in conformity with any directions given by the authorised controller under the order, and the manager of that undertaking should ensure compliance with such directions. If these directions are not complied with by any person, he/she shall be punished with imprisonment for a period of a minimum of three months and up to seven years and shall also be liable to pay a fine.

The court adjudicating the case of violation of orders can also impose less than three months imprisonment on the convict, provided the conviction order by such court shall be a speaking order i.e., sufficient reasons for taking such decision must be provided in the judgement.

Section 7A of Essential Commodities Act

Section 7A was inserted into the Essential Commodities Act by the Legislative Assembly of the state of Punjab. This section confers on the competent authorities the power to forfeit the property that is used in the commission of the offence. It says that, when an offence under Section 7 is committed, the court competent to adjudicate must direct the forfeiture of all the packages in which the disputed property is found, as well as all the animals, vehicles, vessels, or other conveyances used in transporting the said property. The forfeited properties will be given to the Government.

Punjab Paddy (Export Control) Order, 1959

The Central Government passed the Punjab Paddy (Export Control) Order, 1959 on January 3rd, 1959 using its powers under Section 3 of the Essential Commodities Act, 1955.

Para 2 of this order provides a few definitions which are relevant to the current case. Those are:

• The term “export” means to take or cause to move something from the state of Punjab to any place outside the state.
• The word “paddy” means rice in husk;
• The word “State Government” refers to the Government of the State of Punjab.

Para 3 of this order imposes a prohibition on the export of the paddy, including attempt and abetment to export, unless the person obtained a permit issued by the State Government or by any authorised person on behalf of the government. However, the order provides certain exceptions from this prohibition, which are given below.

1. The paddy, which is less than five seers, is being transported as a part of the luggage of a bona fide traveller;
2. The paddy is exported by the government in its account; and
3. The paddy is exported under and in accordance with military credit notes.

Arguments raised by both parties

Arguments presented by the appellants

The counsel representing the appellants, Malkiat Singh and Babu Singh, argued that the export of paddy did not take place as the truck was stopped and seized at Samalkha Barrier which is inside the boundaries of the state of Punjab because the meaning of “export” as defined under Para 2 of the Punjab Paddy (Export Control) Order, 1959 is not fulfilled, the alleged commission of any offence or wrong by the accused persons were not made out.

Arguments presented by the respondent

The counsel argued on behalf of the respondent, the state of Punjab, submitted that not just the export of paddy, but also its attempt and abetment is prohibited under the Punjab Paddy (Export Control) Order, 1959. The respondent also contended that the appellants in the present case made an attempt to commit the offence of exporting the paddy from Punjab state to another place out of Punjab i.e., Delhi.

Judgement in Malkiat Singh & Anr. vs. State of Punjab (1968)

The Supreme Court, on the grounds of no substance, rejected the arguments made by the respondents that the appellants attempted to commit the prohibited act of exporting paddy to Delhi. The court held that the case is not of an attempt, but a mere preparation, i.e., arrangement of means and measures necessary for the commission of the offence, which is distinct from that of an attempt, i.e., a direct movement, after preparation is made, towards the commission of an offence. Thus, the Supreme Court set aside the conviction and sentence given to the appellants under the charges of Section 7 of the Essential Commodities Act, 1955, as the provision punishes only the attempt or abetment to contravene the order, not its preparation. The court also acquitted Qimat Rai and set aside the trial Magistrate’s order of forfeiture of 75 bags of paddy and the truck. The court further directed the refund of fines, if paid by any of the convicted persons.

Rationale behind the judgement

No export of paddy

The Supreme Court, while answering to the question raised before it, put forth the undisputed facts, which are:

1. The truck in question, which was carrying the paddy, was stopped at Samalkha Barrier (32 miles away from Delhi). 
2. The Delhi-Punjab boundary was approximately 18 miles away from Delhi.

The court found that the paddy is not exported as per the above-mentioned undisputed facts evidently prove that the paddy is not transported outside of the boundary of the Punjab state. The truck in question was seized at Samalkha buried which is within the state of Punjab. Therefore, the paddy is said not to be exported as per the definition of “export” given in Para 2(a) of the Punjab Paddy (Export Control) Order, 1959.

The accused’s act is merely a preparation, not an attempt

The court provided the following two requirements to hold a person liable for an attempt to commit an offence.

1. The accused have the intention to commit an offence; and
2. The accused did something in furtherance of such intention, which constitutes an actus reus of criminal attempt.

The court further observed that which act is sufficient to constitute actus reus is a question of law and the same is difficult to answer as it is a prerequisite to distinguish the preparatory acts from the attempt to commit an offence. The example given by the court to understand this concept is: A person’s act of buying a matchbox can prove that the person has an intention to commit arson; however, such an act does not constitute an attempt, rather it is just a preparation to commit arson. It is not an attempt even if that person approached a haystack with an intention to set a fire to it. However, if the person lights a match near the haystack and extinguishes the same due to fear of being watched, such an act amounts to an attempt to commit an offence by the accused. In this light, the court provided the definition of “attempt” as per Sir James Stephen in his Digest of Criminal Law. He stated that an attempt is “an act done with intent to commit that crime, and forming part of a series of acts which would constitute its actual commission if it were not interrupted. The point at which such a series of acts begins cannot be defined, but depends upon the circumstances of each particular case.”

The court provided a test to determine whether an overt act of an accused constitutes an attempt or preparation. The test is whether the acts of the accused were completely harmless if the accused decides to not commit any offence and does not proceed with the intended series of acts. Applying this test to the present case, the court assumed that the accused persons, i.e., the appellants, may have received a warning by the authorities that they do not have the license to export the paddy in question and, knowing the same, the appellants may have decided, when they were somewhere in between Samalkha Barrier and the Delhi-Punjab boundary, to not transport it to Delhi.

Cases where Malkiat Singh & Anr. vs. State of Punjab (1968) was referred

State of West Bengal and Ors. vs. Muzaffar Ahamed Rather and Ors. (2022)

In the case of State of West Bengal and Ors. vs. Muzaffar Ahamed Rather and Ors. (2022), the Calcutta High Court reviewed the death sentence of the appellants who were involved in the offence of waging war against the State and, thus, were convicted under various provisions of the Indian Penal Code, 1860 (hereinafter mentioned as “IPC”), the Explosive Substances Act, 1884 and the Foreigners Act, 1946.

The High Court examined the individual circumstances of the appellants and then referred to the Malkiat Singh case to distinguish the acts of “preparation” from “attempt”. Thus, the Court concluded that the evidence did not support an attempt to wage war.

Therefore, the court acquitted the appellants from the serious charges and upheld the conviction under Section 121A of the IPC for which they were sentenced to 10 years of rigorous imprisonment and also imposed fine, besides additional sentences for the charges under the Foreigners Act, 1946.

Arup Kumar Sarkar vs. The State of West Bengal and Ors. (2023)

In the case of Arup Kumar Sarkar vs. The State of West Bengal and Ors. (2023), the Calcutta High Court dealt with the appellant’s conviction under Sections 8 and 12 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter mentioned as “POCSO Act) and Section 354 of the IPC. The issue before the court was whether his conviction was justified. The court found no evidence of the false allegation because of the victim’s consistent and firm testimony as well as the lack of any hostile relationship between the appellant and the witnesses.

The court referred to the Malkiat Singh case to explain the legal concept of “attempt” and, thus, concluded that the acts of the appellant proved his sexual intent and constituted an attempt to commit an offence under Section 7 of the POCSO Act. Therefore, the Calcutta High Court upheld the conviction of the appellant under Section 8 read with Section 18 of the POCSO Act and sentenced them to rigorous imprisonment for a period of 2 years and 6 months and imposed a fine of Rs. 5,000, with an additional imprisonment in the case of default of payment of fine.

Similar cases on the Essential Commodities Act, 1955

Union of India & Ors. vs. Peerulal & Ors. (1995)

In this case, a jeep was stopped by customs officers on March 2, 1983, because it was carrying smuggled goods allegedly meant to transport them to Pakistan. The occupants of the jeep admitted the fact that the goods were loaded from the garage of Peerulal, the respondent, in Jodhpur and were intended for smuggling. A show cause notice dated June 18, 1983, which was issued by the Assistant Collector, Customs and Central Excise, Jodhpur, under Section 124 of the Customs Act, 1962, served against Peerulal and also on several other individuals. 

Peerulal and other individuals challenged the said show cause notice which was issued within the powers of the customs officer. The learned Single-Judge Court had quashed the show cause notice that was issued against Peerulal and had directed the restoration of seized goods and refund of money from the sale of certain items. The Union of India filed an appeal to the Rajasthan High Court against the judgement of a learned Single-Judge Court.

The High Court, while addressing the issues, referred to the case of Malkiat Singh vs. State of Punjab to differentiate between preparation and attempt in criminal law. In Malkiat Singh, the Supreme Court held that merely preparing for an illegal act does not constitute an attempt to commit the crime. The High Court noted that the learned Single-Judge Court had relied on this precedent and held that the acts of Peerulal amounted to preparation, not an attempt to smuggle. However, the Rajasthan High Court found that there was sufficient material in the show cause notice, including admissions from Peerulal and other individuals, indicating that the goods were intended for smuggling to Pakistan. The High Court,  thus, held that the customs officers had reasonable grounds to issue the show cause notice and proceed with adjudication and, thus, reversed the decision of the Single-Judge Court.

Shri Debdas Adhikary & Dinabandhu Adhikary vs. Commissioner of Customs (Prev.) (2007)

In this case, the vehicle of the appellants was stopped by the Border Security Force (BSF) at a place that is 2 km away from the Indo-Bangladesh border, which was identified to be not within a customs-notified area as per the submissions made by the appellants. The issue that came before the Customs, Excise, and Gold Tribunal, Calcutta was whether the location, where the vehicle in question was stopped, was within a notified customs area under Section 7 of the Customs Act, 1962, and whether the appellants’ acts constituted an “attempt” to export goods, or were merely a preparation to export.

The tribunal referred to the case of Malkiat Singh vs. State of Punjab to differentiate between “preparation” and “attempt” in the context of criminal law. The Supreme Court in Malkiat Singh clarified that the ‘preparation’ involves arranging means for committing an offence, whereas an ‘attempt’ includes direct actions towards committing the offence. In the present case, the tribunal found no evidence that the appellants’ acts went beyond preparation as the vehicle was not found in a notified customs area and there was no concrete evidence of an attempt to export. Therefore, the Customs, Excise, and Gold Tribunal set aside the impugned order and ruled in favour of the appellants.

State of Himachal Pradesh vs. Yub Raj (2021)

In the case of State of Himachal Pradesh vs. Yub Raj (2021), the High Court of Himachal Pradesh heard an appeal challenging the acquittal of Yub Raj, the respondent, by the lower court. Yub Raj was initially convicted for allegedly violating the provisions of the Indian Forest Act, 1927 by loading timber without a permit by competent authorities. The prosecution argued that the act of loading constituted a violation under Section 42 of the Indian Forest Act, 1927.

The High Court referred to the principles provided in Malkiat Singh vs. State of Punjab to distinguish between preparation and attempt in criminal law and noted that the prosecution failed to establish an attempt to transport timber beyond the state boundary. The court observed that the mere loading of timber, without evidence of transportation, does not constitute an offence under the law and, thus, upheld the acquittal of Yub Raj.

Conclusion

The state of Punjab in 1959 notified that the export of paddy to another place outside of Punjab, including its attempt and abetment, were punishable acts. The state of Punjab alleged that the accused persons in the case of Malkiat Singh & Anr. vs. State of Punjab (1968) attempted the export and sought the court to punish them. The question to be resolved by the Supreme Court in the instant case is whether the accused person’s acts constitute an attempt or just a preparation to export. The court, in its judgement, clearly distinguished the both by providing definitions, explanations, and examples and, then, held that the truck was stopped at Samalkha Barrier and not proceeding further constitutes that preparation to export the paddy was made by the appellants, but not its attempt. The appellants, therefore, were set free of charges.

References

• https://main.sci.gov.in/jonew/judis/1917.pdf