Andhra Pradesh High Court - Amravati
M. Jyothi Majjiga Jyothi, vs The State Of Andhra Pradesh, on 29 October, 2019
Author: M.Satyanarayana Murthy
Bench: M.Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION NO.16208 OF 2019
ORDER:
The petitioner M.Jyothi @ Majjiga Jyothi filed the writ petition under Article 226 of the Constitution of India to declare the action of the respondents in seizing the stocks of the petitioner's Fair Price Shop No.1007032 situated at Eguva Gareddigari Palle, Ellutla, Gurramkonda Mandal, Chittoor District without conducting any enquiry and without issuing show cause notice as illegal, arbitrary and violative of Articles 14 and 21 of the Constitution of India and principles of natural justice and the provisions of Andhra Pradesh State Targeted Public Distribution System (Control) Order 2018 (for short "Control Order 2018"), consequently set aside the proceedings of the respondents while permitting the petitioner to run the Fair Price Shop No.1007032.
The petitioner was appointed as a Fair Price Shop dealer for the shop No.1007032 situated at Eguva Gareddigari Palle, Ellutla, Gurramkonda Mandal, Chittoor District on permanent basis by proceedings No.D.Dis.(A3)/164/Gurramkonda/32/2017 dated .03.2018 issued by the Sub-Collector, Madanapalle. On 11.06.2019, a form of authorisation was issued by the respondent No.3 and the same was extended up to 31.03.2021.
While the petitioner running Fair Price shop, respondent No.7 along with another CSDT visited the shop on 10.10.2019 at 11.00 a.m. and conducted inspection. Respondent No.7 compared the document produced by the petitioner and stock as per "e-POS"
machine, found certain variations and seized the stock, locked the MSM,J WP_16208_2019 2 shop without following provisions of the Control Order 2018. Respondent handed over the seized stock along with "e-POS"
machine, electronic scale and charger to the Village Revenue Officer of Ellutla for safe custody.
The main ground urged before this Court is that the respondent No.7 did not follow the procedure prescribed under clause 20 (n) of Control Order 2018 and no panchanama was conducted. As per Section 6 (B) of the Essential Commodities Act (for short "E.C.Act"), respondent No.7 did not issue any notice to the petitioner, as such violated principles of natural justice and provisions of Control Order 2018 and prayed to set aside the impugned order.
During hearing, Sri Y.N.Anjaneyacharyulu, learned counsel for the petitioner, contended that respondent No.7 issued proceedings in total deviation of procedure prescribed under clause 20 (n) of the Control Order 2018 and in the absence of any panchanama or mediators report at the time of inspection, the proceedings of respondent No.7 is unbelievable and on account of such violation, the proceedings of respondent No.7 are liable to be quashed.
He further contended that no notice as required under Section 6 (B) of the E.C.Act was issued by the respondent No.3 after initiation of proceedings under Section 6 (A) of the E.C.Act, but passed final order cancelling the authorisation of the petitioner and the same is illegal, arbitrary exercise of power by the respondents and requested to set aside the same.
Learned Assistant Government Pleader for Civil Supplies contended that the respondent No.7 conducted inspection and MSM,J WP_16208_2019 3 found certain variations, on account of such variations, the order impugned in this writ petition is passed and there are no merits in the petition and prayed to dismiss the writ petition.
Undisputedly, the petitioner is a Fair Price shop dealer of shop No.1007032, Eguva Gareddigari Palle, Ellutla, Gurramkonda Mandal, Chittoor District and she was appointed under general category vide proceedings No.D.Dis.(A3)/164/Gurramkonda/32/ 2017 dated .03.2018. These proceedings are sufficient to disclose that she was appointed as Fair Price Shop dealer, and her authorisation was renewed from time to time, which is in force till 31.03.2021.
It is the contention of the respondents that the proceedings were conducted strictly adhering to clause 20 (n) of the Control Order 2018, but they did not place on record any such panchanama to find out exact variation between the ground balance and balance as per e-POS machine, except the receipt dated 10.10.2019 issued by Village Revenue Officer, Ellutla, that he has taken custody of rice (10.44 quintals), Ragulu (16 kgs), Sugar (35 Kgs), Atta (5 Kgs), e-POS machine (1), Electronic Scale (1), charge (1).
These proceedings are not sufficient to conclude that the petitioner committed any illegality or irregularity in transacting business at the Fair Price Shop.
Clause 20 of Control Order 2018 deals with power of entry, inspect, search and seize the scheduled commodities, ask questions for production of documents etc. According to clause 20 (n) of Control Order 2018, provisions of Section 100 of the Code of Criminal Procedure, 1973, relating to MSM,J WP_16208_2019 4 search and seizure shall so far as may be, apply to search and seizure under this order.
Thus, the provisions of Cr.P.C. also bound to be followed while conducting search by respondent No.7.
According to Section 100 (4) of Cr.P.C. before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situated or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.
But in the present case, the respondents did not follow the procedure prescribed under Section 100 of Cr.P.C. though adherence to Section 100 of Cr.P.C. is mandatory as per clause 20
(n) of Control Order 2018.
In "M/s Shaw Wallance and Company, Madras v. State of Andhra Pradesh1" this Court held that in case, samples of fertilizers were drawn but not in the presence of mediators as contemplated in Section 100 (4) of Cr.P.C., is fatal to prosecution.
In the present case, respondent No.7 did not prepare the seizure panchanama and search was not conducted in the presence of independent mediators of the locality and violated the clause 20 (n) of the Control 2018. Violation of sub-clause (n) of clause 20 of Control Order vitiates the entire proceedings for the reason that no mediators report or panchanama was prepared in the presence of independent mediators. Thereby, the search 1 2004 (1) ALT (Crl.) 221 (A.P.) MSM,J WP_16208_2019 5 conducted by respondent No.7 is in contravention of the mandatory requirement, thereby the order passed by the Joint Collector on the basis of such illegal search and seizure vitiates entire proceedings.
It is the contention of the petitioner that no notice was issued till date as required under Section 6 (B) of the E.C.Act. In fact, no order of cancellation was passed as seen from the record. Therefore, the respondent No.3, if intends to pass any order on the basis of such search proceedings conducted by respondent No.7, respondent No.3 is directed to follow the procedure provided under Section 6 (A) and (B) of the E.C.Act. and till then the petitioner cannot be deprived from running Fair Price Shop No.1007032. Hence, search and seizure conducted by respondent No.7 are declared as illegal and arbitrary.
In the result, the writ petition is allowed declaring the action of the respondents in seizing the stocks of the petitioner's Fair Price Shop No.1007032 as illegal, arbitrary and in violation of provisions of Control Order 2018. In the absence of any suspension order, the petitioner is permitted to lift and distribute the essential commodities through Fair Price Shop No.1007032.
The miscellaneous petitions pending, if any, shall also stand closed.
_________________________________________ JUSTICE M. SATYANARAYANA MURTHY 29.10.2019 Ksp