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2020 DIGILAW 287 (AP)

D. v. Satyanarayana VS State Of AP

2020-04-20

CHEEKATI MANAVENDRANATH ROY

body2020
JUDGMENT : This criminal revision case is filed questioning the order dated 08-3-2019 passed in E.C. Appeal No.394 of 2018 on the file of the Sessions Judge, Krishna at Machilipatnam, whereby the appeal was dismissed confirming the order passed by the Collector, Krishna at Machilipatnam, in E.C.P. No.359/2017 and reduced the percentage of confiscation of seized stock to the Government from 50% to 25%. 2. Facts germane to dispose of this criminal revision case may briefly be stated as follows: (a) The revision petitioner is doing business in running a rice mill in the name and style “M/s. Nagalakshmi Par Boiled Rice Mill” in Mallayapalem Village of Gudivada Mandal. On 04-8-2017, the In charge Divisional Assistant Supply Officer, Gudivada, on receipt of credible information regarding unauthorised storage of Public Distribution System (PDS) rice in Nagalakshmi Par Boiled Rice Mill, Mallayapalem, Gudivada along with enforcement team inspected the premises of the said rice mill. During the course of inspection, the inspection team found the following quantity of paddy and rice in the When the inspection team questioned the revision petitioner, it is stated by him that the rice available in gunny bags is Custom Milled Rice (CMR); out of which, on delivery of qtls. 270.00 kgs of rice to Civil Supplies Corporation that the authorities have rejected the stock as it is below the FAQ specifications. When the said gunny bags are verified it is found that the said bags are stitched with the tag of “Nagalakshmi Par Boiled Rice Mill, Mallayapalem, Gudivada”. However, in respect of the rice found in polythene bags which is of qtls. 119.00 kgs, the revision petitioner did not offer any explanation and he maintained silence. Therefore, the complainant came to conclusion that the revision petitioner indulged in clandestine business of purchasing Public Distribution System (PDS) rice and delivering the same as CMR rice instead of actually milling the paddy received from the PPCs and thereby misused the corresponding quantity of paddy for pecuniary benefits and violated the conditions of Memorandum of Understanding (MoU) entered with District Manager, Andhra Pradesh State Civil Supplies Corporation Limited, Vijayawada and that the revision petitioner also cheated the Government by purchasing PDS rice under the guise of CMR activities and contravened Clause 17(A) of Andhra Pradesh State Public Distribution System (Control) Order, 2008. (b) So, the inspection team seized the said stock in the presence of the mediators under the cover of mediators’ report and handed over the same to one T.N.V. Sambasiva Rao of Sri Vasavi Rice and Floor Mill Contractors Company, Vijayawada Road, Gudivada, for safe custody under proper acknowledgment. (c) After completion of investigation, complaint under Section 6-A of the Essential Commodities Act, 1955 was filed before the Collector, Krishna District against the revision petitioner. (d) On receipt of the entire record, the Collector, Krishna District issued notice to the revision petitioner under Section 6-B of the Essential Commodities Act that the rice found in the polythene bags of qtls. 119.00 kgs is PDS rice and that the revision petitioner indulged in clandestine activity of purchasing and storing the PDS rice in his mill to polish the same and to give to the Government as CMR rice without purchasing the paddy from the farmers at market supporting price as stipulated by the Government in violation of the conditions of MoU entered with A.P. State Civil Supplies Corporation Ltd., Vijayawada, for his illegal profits. It is also stated in the notice that the revision petitioner had interrupted the process of smooth functioning of public distribution system and also failed to maintain A and B Registers and thereby contravened Clause 17(A) of Control Order, 2008 and Clauses 34(a)(b), 4(A) and 5 and Clause 16(1) of Andhra Pradesh Rice Procurement (Levy) Order, 1984 and called for the explanation of the revision petitioner. (e) Pursuant to the notice issued to the revision petitioner under Section 6-B of the Essential Commodities Act, the revision petitioner has filed his written explanation before the Collector contending that he had entered into an agreement with Civil Supplies Corporation for milling up paddy into conventional raw/boiled rice-Khariff and Rabi 2016-17 (crop year) and as per the agreement, the rice miller is entitled for the milling charges for milling the paddy as applicable for milling the paddy under custom milling as per the norms of the Government of India. Accordingly, the revision petitioner used to supply rice to the Civil Supplies Corporation. Accordingly, the revision petitioner used to supply rice to the Civil Supplies Corporation. It is stated in the explanation that the seized stock is not PDS rice and without verifying the stock that was seized and without drawing any samples from the stock and sending the same to the Analyst to ascertain whether it is PDS rice or not, proceedings are initiated against the revision petitioner in violation of the procedure contemplated in this regard. It is finally stated that the revision petitioner is not doing any clandestine business as alleged and thereby prayed to drop the proceedings initiated against him under Section 6-A of the Essential Commodities Act. (f) Not convinced with the explanation offered by the revision petitioner, the Collector, Krishna District, ordered for confiscation of 50% worth of the seized stock to the Government and the revision petitioner was directed to pay the value of the confiscated stock to the Government. (g) Aggrieved by the impugned order passed by the Collector, Krishna District, the revision petitioner preferred appeal to the Sessions Judge, Krishna District, assailing the validity of the said order. (h) The learned Sessions Judge by the impugned order held that the complainant failed to prove that the seized stock is PDS rice and also held that as per G.O.Ms.No.20, dated 21-11-2014, there is no control of movement, possession, permission etc., from one place to the other place in respect of rice and paddy. Therefore, as on the date of inspection i.e. on 30-6-2017, there is no restriction in force on storage and stock limits of rice and paddy. Therefore, Clause 17(A) of the said mill. 1. Paddy Quintals 204.00 kgs 2. Rice (in gunny bags) Quintals 383.00 kgs 3. Rice (in polythene bags) Quintals 119.00 kgs A.P. State Public Distribution System (Control) Order, 2008 is not applicable to the case on hand. However, the learned Sessions Judge held that as per the clarification issued by the Government in CCS. Ref. No.PI (3)/1831/2014, dated 09-4-2015, the Andhra Pradesh Rice Procurement (Levy) Order, 1984 is in force and action can be taken against the millers/traders for violation of the provisions of the A.P. Rice Procurement (Levy) Order and as the revision petitioner failed to maintain A and B Registers regarding the stock found in the mill at the time of inspection, relating to qtls. 119.00 kgs of rice stitched in polythene bags with the tag of “Nagalakshmi Par Boiled Rice Mill” that by virtue of the above Circular that action can be taken against the millers/traders for violation of the provisions of the A.P. Rice Procurement (Levy) Order. Therefore, the order of the Collector confiscating the seized stock and directing the revision petitioner to pay the confiscated value of the stock is valid. However, the order relating to percentage of confiscation is modified by the learned Sessions Judge reducing the same from 50% to 25%. (i) Aggrieved thereby, the present criminal revision case is preferred by the revision petitioner questioning the legality and validity of the impugned order. 3. Heard Sri P.S.P. Suresh Kumar, learned counsel for the revision petitioner and the learned Additional Public Prosecutor for the respondent/State. 4. Learned counsel for the revision petitioner would contend that qtls. 119.00 kgs of rice found in polythene bags is not PDS rice. He would submit that as per Order 6, Clauses (4), (5) and (6) of the A.P. Rice Procurement (Levy) Order, 1984, the officer concerned has to take three representative sealed samples of rice and handover one sample to the dealer or his agent and send the other two samples to the Food Grains Analytical Laboratory established by the State Government or the Food Corporation and one of the two samples has to be analyzed in the said Laboratory and the other retained therein and on receipt of the result of the analysis, within thirty days, the miller or the dealer, if disputes with the correctness of the result, shall get the other sample retained in the Laboratory re-analyzed after prior intimation to the miller or dealer. The said procedure is not followed in this case and it is not ascertained whether the rice in question is PDS rice or not. Therefore, the impugned order of the District Collector is legally unsustainable and it is erroneous and the learned Sessions Judge also found that it is not proved that the rice in question is PDS rice as per law. He would submit that the learned Sessions Judge grossly erred in holding that the revision petitioner failed to maintain the registers relating to the stock found in the rice mill and thereby contravened the provisions of the A.P. Rice Procurement (Levy) Order. He would submit that the learned Sessions Judge grossly erred in holding that the revision petitioner failed to maintain the registers relating to the stock found in the rice mill and thereby contravened the provisions of the A.P. Rice Procurement (Levy) Order. He would submit that since there is no restriction on the procurement, storage and transportation of paddy in view of G.O.Ms.No.20, dated 21-11-2014, there is no necessity for the miller or dealer to maintain any stock registers with effect from 21-11-2014 as the earlier Control Order of 2008 is no more in force as on the date of the inspection. Therefore, the learned Sessions Judge overlooked this fact and erroneously held that on account of the failure on the part of the revision petitioner in maintaining A and B Registers that the revision petitioner has violated the provisions of the A.P. Rice Procurement (Levy) Order, 1984. Therefore, the said finding is legally unsustainable and thereby prayed to allow the revision case and set aside the impugned order. 5. Per contra, learned Additional Public Prosecutor would submit that even though it is not proved that qtls. 119.00 kgs of rice found in polythene bags in the mill of the revision petitioner is PDS rice, the revision petitioner miserably failed to account for the same and explain as to how the said quantity of qtls. 119.00 kgs of rice is found in polythene bags with the tags of the name of the rice mill. He would submit that the revision petitioner also failed to maintain A and B Registers as required under Order 16, Clause (1) of the A.P. Rice Procurement (Levy) Order, 1984, which is in force as on the date of inspection and as such he has contravened the aforesaid Levy Order. Therefore, the impugned order passed by the learned Sessions Judge is perfectly sustainable under law. So, he prayed for dismissal of the revision case. 6. The material facts of the lis are absolutely not in controversy. Most of the material facts are incontrovertible facts in this case. Admittedly, when the premises of the rice mill of the revision petitioner was inspected by the In charge Divisional Assistant Supply Officer, Gudivada along with his enforcement team, qtls. 119.00 kgs of rice in polythene bags with the tag of “Nagalakshmi Par Boiled Rice Mill” was found in the premises of the mill. Admittedly, when the premises of the rice mill of the revision petitioner was inspected by the In charge Divisional Assistant Supply Officer, Gudivada along with his enforcement team, qtls. 119.00 kgs of rice in polythene bags with the tag of “Nagalakshmi Par Boiled Rice Mill” was found in the premises of the mill. The said fact is not disputed by the revision petitioner. The record shows that when the inspection team questioned him in this regard to account for the same, the revision petitioner did not account for the same and did not offer any explanation and he maintained silence. Therefore, the inspection team found that the revision petitioner who has to supply the Custom Milled Rice (CMR) to the A.P. State Civil Supplies Corporation Limited, Vijayawada, as per the MoU entered by him with the said A.P. State Civil Supplies Corporation Ltd., has cheated the Government by purchasing PDS rice under the guise of CMR activities and contravened Clause 17(A) of the A.P. State Public Distribution System (Control) Order, 2008. After the complaint was filed before the District Collector, Krishna, while issuing notice to him under Section 6-B of the Essential Commodities Act, 1955 apart from the aforesaid charge, it is also stated in the show cause notice that the revision petitioner failed to maintain A and B Registers and thereby contravened Clause 16(1) of the A.P. Rice Procurement (Levy) Order, 1984 and called for his explanation. 7. Though it is stated in the explanation that the said qtls. 119.00 kgs of rice is not PDS rice, it is not explained regarding failure to maintain A and B Registers required under the Levy Order, 1984. 8. As rightly held by the learned Sessions Judge, it is not proved that the said qtls. 119.00 kgs of rice in question is PDS rice. When the revision petitioner denied in his explanation that it is PDS rice, the burden is on the State to prove that the said rice in question is PDS rice. No steps are taken to send the said rice which was seized in the mill for chemical analysis to ascertain whether it is PDS rice or not. 9. When the revision petitioner denied in his explanation that it is PDS rice, the burden is on the State to prove that the said rice in question is PDS rice. No steps are taken to send the said rice which was seized in the mill for chemical analysis to ascertain whether it is PDS rice or not. 9. In the judgment of the Madras High Court in the case of Pazhanisamy v. State, 2015 Law Suit (Mad) 1340 relied on by the learned counsel for the revision petitioner, it is held at paragraph No.10 of the judgment as follows: “10. ... ... ... As per the evidence of P.W.2/Civil Supplies Flying Squad Special Tahsildar, he has taken sample of the seized material, however it was not sent for chemical analysis and no report has been obtained from the laboratory to prove that the seized material is PDS rice. So, once the charge is specific that the accused persons were transporting PDS rice, it is duty of the prosecution to prove the same. However, the prosecution has miserably failed to examine the witness and mark any documents to show that the rice seized is PDS rice.” 10. In another judgment relied on by the learned counsel for the revision petitioner of the Madras High Court in the case of S.Angammal v. The Inspector of Police, CSCID, Erode, Crl.R.C. No.966/2019, dt.30-11-2016 also, it is held at paragraph No.9 of the judgment as follows: “ ... ... ... it is the burden of the prosecution to establish that the 2nd respondent purchased or procured thee seized rice bags on the basis of family cards. As far as the case on hand is concerned, it is seen that the prosecution has miserably failed to establish the said first and foremost requirement to attract the provision of Clause 6(4) of the Order and there is absolutely no material or evidence available on record indicate or to establish that the 2nd respondent purchased the said rice bags on the basis of family cards.” 11. The ratio laid down in the aforesaid two judgments squarely applies to the present facts of the case also. In the instant case also, though it is the specific case of the prosecution that qtls. The ratio laid down in the aforesaid two judgments squarely applies to the present facts of the case also. In the instant case also, though it is the specific case of the prosecution that qtls. 119.00 kgs of rice found in the premises of the mill at the time of inspection is PDS rice and the revision petitioner indulged in clandestine business of purchasing PDS rice and delivering the same as CMR rice instead of actually milling the paddy received from PPCs, despite the fact that the revision petitioner denied the said fact that it is PDS rice, the prosecution miserably failed to substantiate its version that the said rice in question is PDS rice. Therefore, the learned Sessions Judge arrived at a right conclusion in this regard and recorded a correct finding to that effect. 12. The other judgment relied on by the learned counsel for the revision petitioner in the case of A.Seshagiri Rao v. Commissioner of Civil Supplies (Appeals), 2003(3) ALT 724 of the High Court of Andhra Pradesh is distinguishable on facts and not applicable to the facts of the present case. In that case, as it was found that there was no violation of any Control Order in respect of the seized stock and confiscated, the High Court of Andhra Pradesh held that the confiscation is not valid. It is pertinent to note here that it is held in the said judgment, the stock that was found to be transported outside the State was accounted and the accounted stock of the mill cannot be seized. At paragraph No.22 of the said judgment, it is held that the seizure of the accounted stocks in question from the mills of the petitioners is illegal and the same cannot be confiscated. 13. In the instant case, the stock that was seized in the mill is not an accounted stock and the revision petitioner miserably failed to account for the same. Therefore, the seizure is valid. 14. Now, the seminal question that falls for consideration in this revision case is: Whether the revision petitioner has violated Clause 16(1) of the A.P. Rice Procurement (Levy) Order, 1984 or not? 15. Therefore, the seizure is valid. 14. Now, the seminal question that falls for consideration in this revision case is: Whether the revision petitioner has violated Clause 16(1) of the A.P. Rice Procurement (Levy) Order, 1984 or not? 15. A perusal of Clause (1) of the said Levy Order makes it manifest that every miller or dealer is under an obligation to maintain A and B Registers as specified in Schedule IX, duly indicating the total transactions right from purchase of paddy, paddy milled, levy rice delivered out of milling/rice acquired and sale of levy free rice during the day. Clause (2) thereof indicates that he shall furnish a fortnightly return containing an abstract of the above accounts for fortnightly periods ending on the 15th and the last date of every calendar month to the Collector exercising jurisdiction in the area so as to reach the latter within 5 days of the close of the fortnight. It is significant to note here that admittedly, the revision petitioner did not maintain any such A and B Registers as required under Order 16, Clause (1) of the Levy Order. In fact, he did not offer any explanation at the time of inspection when he was questioned in this regard as to how the said rice of qtls. 119.00 kgs with the tag of his rice mill is available in the said rice mill at the time of the inspection. Even subsequently also, he did not offer any acceptable and lawful explanation in this regard. It is pertinent to note here that as per the clarification issued by way of Circular by the Commissioner of Civil Supplies, A.P., Hyderabad in CCS Ref. No.PI(3)/1831/2014, dated 09-4-2015, which is referred at paragraph No.17 of the impugned order by the learned Sessions Judge, it is clearly stated that the said A.P. Rice Procurement (Levy) Order, 1984 is in force and action can be taken against the millers/traders for violation of the provisions of the Levy Order. For better appreciation, the same is extracted hereunder: “But the Andhra Pradesh Rice Procurement (Levy) Order, 1984 is in force and action can be taken against the millers/traders for violation of the provisions of levy order. All the Collectors (CS)/DSOs and other Licensing Authorities, shall take notice of the above and take action accordingly.” 16. For better appreciation, the same is extracted hereunder: “But the Andhra Pradesh Rice Procurement (Levy) Order, 1984 is in force and action can be taken against the millers/traders for violation of the provisions of levy order. All the Collectors (CS)/DSOs and other Licensing Authorities, shall take notice of the above and take action accordingly.” 16. Therefore, when the said Levy Order of 1984 has been in force as on the date of the inspection and the Collectors are empowered to take action for violation of the provisions of the said Levy Order, since the revision petitioner admittedly did not maintain any such A and B Registers as required under Order 16 of the said Levy Order it is a clear case of violation of the provisions of the said Levy Order. At this juncture, it is relevant to note that even in the notice issued to the revision petitioner calling for his explanation before initiating the proceedings by the Collector, it is clearly stated in it that the revision petitioner failed to maintain A and B Registers and thereby contravened Clause 16(1) of the A.P. Rice Procurement (Levy) Order, 1984 and called for his explanation. Therefore, as the revision petitioner clearly violated the said Levy Order as he failed to maintain A and B Registers as required under the aforesaid Levy Order, he has violated the provisions of the said Levy Order and thereby rendered himself liable for confiscation of the said seized stock. 17. The contention of the learned counsel for the revision petitioner that as the control over the movement, procurement and storage of rice is lifted as on the date of inspection that there is no necessity or legal obligation on the revision petitioner to maintain A and B Registers as per the Levy Order of 1984 and as such he did not follow any such provisions of the Levy Order cannot be countenanced. In the clarificatory Circular issued above on behalf of the Government, it is clearly stated that the said A.P. Rice Procurement (Levy) Order, 1984 is in force and action is to be taken by the concerned for violating the clauses of the provisions of the said Levy Order. It is further directed that the Collectors and other concerned shall take action for violation of the provisions of the said Levy Order. It is further directed that the Collectors and other concerned shall take action for violation of the provisions of the said Levy Order. Therefore, when the said Levy Order is in force as on the date of inspection and one of the Orders of the said Levy Order regarding the maintenance of A and B Registers is violated, certainly the revision petitioner is liable for appropriate action for violating the provisions of the said Levy Order. 18. Lifting of control over the movement, procurement and storage of rice has nothing to do with the maintenance of A and B registers as required under Levy Order, 1984. It does not dispense with the requirement of maintaining A and B registers as per Levy Order, 1984. Despite the fact that control over movement, procurement and storage of rice is lifted, legal obligation to maintain A and B registers as per Clause 16(1) of Levy Order, 1984, as clarified by the Government in its Circular referred supra still subsists. Violation of the same makes the concerned liable for appropriate action. 19. Therefore, the learned Sessions Judge arrived at a right conclusion and recorded a finding that the revision petitioner has contravened the provisions of the Levy Order of 1984 as he failed to maintain the registers as required under the said Order and to account for the said qtls. 119.00 kgs of rice found in his rice mill. The learned Sessions Judge also has taken note of the fact that the revision petitioner did not commit any such acts of violation previously and has taken a lenient view and also reduced the percentage of confiscation from 50% to 25%. Therefore, the impugned order is perfectly sustainable under law and it warrants no interference in this revision case. 20. In the result, the criminal revision case is dismissed. Pending applications, if any, shall stand closed.