( 1 ) SEC. 135a of the Customs Act which is material for our purpose reads follows:-IF a person makes preparation to export any goods in contravention of the provisions of this Act and from the circumstances of the case it may be reasonably inferred that if not prevented by circumstances independent of his will he is determined to carry out his intention to commit the offence he shall be punishable with imprisonment for a term which may extend to three years or with fine or with both". It will appear on reading sec. 135a that for making out a case under sec. 135a of the Customs Act against any person the prosecution has to establish that that person has made preparation to export any goods in contravention of the provisions of the Customs Act and further that from the circumstances of the case it can be reasonably inferred that if not prevented by circumstances independent of his will that person was determined to carry out his intention to commit the offence. It is therefore not enough for the prosecution to make out a case of mere preparation. It has further to make out a case that reason able inference can be drawn from the circumstances that if not prevented by circumstances independent of his will the said person was determined to carry out his intention to commit the offence. So far as the first aspect is concerned we can say from the evidence of Ajaypalsinh read with the statement of Mahesh Kantilal Soni. Ex. 7 recorded by the Assistant Collector of Customs that a prima facie case is made out about preparation to commit an offence of exporting silver. The Ahmedabad car was proceeding towards Sarkhej. It stopped only after it had crossed the railway crossing near Sarkhej. That road leads to Bavla and further to Saurashtra and Kutch. The bifurcation to Gandhinagar is on the Ahmedabad side of Sarkhej railway crossing. The respondents do not offer any explanation about the presence of silver in the car which was proceeding in that direction. In view of this prima facie it can be said that these respondents were taking silver towards Saurashtra or Kutch sea coast for exporting the same out of India.

( 2 ) THE learned advocate Mr. B. C. Patel for the respondents-accused drew my attention to a decision of the Supreme Court reported in Malkiat Singh v. State of Punjab A. I. R. 1970 S. C. 713 in support of his submission that no case is made out even for preparation against these two respondents. Now the Supreme Court was considering the case relating to an offence punishable under the Essential Commodities Act. Preparation to commit an offence is not made punishable under the said Act but attempt to commit is made an offence. The Supreme Court was considering the difference between attempt and preparation. Mr. Patel also drew my attention to another decision of the Supreme Court reported in Nasu Sheikh v. State of Bihar A. I. R. 1972 S. C. 1610 wherein also the question was about attempt to commit an offence punishable under the Essential Commodities Act. In that case also the Supreme Court was concerned with the question whether the act of the accused was sufficient to make out a case of attempt or mere preparation. In both the cases the Supreme Court has illustrated the difference between attempt and preparation. I fail to understand how these two decisions of the Supreme Court in any way support the contention raised by Mr. B. C. Patel because if we apply the test said down in these two decisions of the Supreme Court relied upon by Mr. Patel they on the contrary clearly show that these two respondents did make preparation for export though it cannot be said that they reached the stage of attempt to commit the offence of exporting silver. While considering the question whether the act of the appellants constituted an attempt or preparation the Supreme Court observed in the case of Malkiat Singh (supra) as follows:"the test for determining whether the act of the appellants constituted an attempt or preparation i