Andhra HC (Pre-Telangana)
Maimuna Begum vs The State Of Telangana, Rep.By Its Chief ... on 13 July, 2016
Author: C.V.Nagarjuna Reddy
Bench: C.V.Nagarjuna Reddy
THE HON'BLE MR JUSTICE C.V.NAGARJUNA REDDY AND THE HONBLE SRI JUSTICE G.SHYAM PRASAD s
WP Nos.7811 of 2016
13-07-2016
Maimuna Begum Petitioner
The State of Telangana, rep.by its Chief Secretary, T.S.Secretariat Buildings,
Hyderabad and others Respondents
^Counsel for the Petitioner: Sri V.H.V.R.R.Swamy
!Counsel for the respondents: GP for Home (TS)
<Gist:
>Head note:
?Cases referred:
THE HONBLE SRI JUSTICE C.V.NAGARJUNA REDDY
AND
THE HONBLE SRI JUSTICE G.SHYAM PRASAD
Writ Petition Nos.7811, 16387, 16401, 16601,
7815, 8012 & 9111 of 2016
Dated 13th July, 2016
The Court made the following:
THE HONBLE SRI JUSTICE C.V.NAGARJUNA REDDY
AND
THE HONBLE SRI JUSTICE G.SHYAM PRASAD
Writ Petition Nos.7811, 16387, 16401, 16601,
7815, 8012 & 9111 of 2016
COMMON ORDER:(per Honble Sri Justice C.V.Nagarjuna Reddy) These writ petitions raise common legal issues, besides separate but identical detention orders being challenged therein. Each of the detenus is detained under Section 3(1) and (2) of the Prevention of the Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (for short the 1980 Act).
The gravamen of the allegation on which the detenus have been detained is that they have been engaged in clandestine business of purchasing commodities meant for public distribution system by hoarding, diverting and selling the same without any licence under the A.P.State Public Distribution System (Control) Order, 2008 (hereinafter referred to as the Control Order, 2008) r/w Section 7 of the Essential Commodities Act, 1995 (for short the 1995 Act). In the grounds of detention, it is specifically alleged that the material placed before respondent No.2 revealed that the detenus have been doing illegal and clandestine business of purchasing PDS rice and other commodities from the ration cardholders and thereafter storing and selling the same to the needy people for pecuniary gain. The grounds referred to and relied upon three criminal cases against each of the detenus.
Sri V.H.V.R.R.Swamy, learned counsel for the petitioners, submitted that the main ground of detention, namely, that the detenus have been purchasing the rice meant for public distribution system from ration cardholders, even if accepted on its face value does not constitute any offence either under the 1980 Act or the 1995 Act or under the Control Order, 2008. The learned counsel further submitted that the commodity of rice in respect of which allegation of illegal purchase, storing and sale is made against the detenus is only a scheduled commodity under the Control Order, 2008 and that as the activity of the detenus referred to above does not contravene any of the provisions of the Control Order, 2008, the detenus are not liable for any penal consequences and consequently the very ground on which the detenus have been detained is unsustainable in law and the detention orders are therefore liable to be quashed.
The learned Government Pleader for Home (TS) submitted that since rice is a foodstuff within the meaning of foodstuffs included in entry (3) of the Schedule to the 1995 Act, any contravention thereof constitutes an offence. He has further submitted that as the activity of the detenus, namely, bulk purchase of rice meant for public distribution system from the cardholders and selling the same for higher prices, is de-reiling the whole public distribution system and thereby it is affecting the public order.
We have carefully considered the submissions of the learned counsel for the respective parties.
The detention orders were passed under Section 3 of the 1980 Act. Under the said provision, if a person is found acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community, he can be detained under an order to be made by the authorities referred to in the said provision. Under explanation to Section 3(1), the words acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community are explained as under:
(a) committing or instigating any person to commit any offence punishable under the Essential Commodities Act, 1955 (10 of 1955), or under any other law for the time being in force relating to the control of the production, supply or distribution of, or trade and commerce in any commodity essential to the community; or
(b) dealing in any commodity
(i) which is an essential commodity as defined in the Essential Commodities Act, 1955 (10 of 1955); or
(ii) with respect to which provisions have been made in any such other law as is referred to in clause (a), with a view to making gain in any manner which may directly or indirectly defeat or tend to defeat the provisions of that Act or other law aforesaid.
We shall proceed for the purpose of these cases that the rice being a foodstuff is an essential commodity. The question then is whether mere purchase of rice meant for public distribution system from the cardholders unauthorisedly for making unjust enrichment amounts to contravention of any of the provisions of the 1995 Act or the Control Order, 2008.
Section 7 of the 1995 Act deals with penalties. This provision envisages that if any person contravenes any order made under Section 3 of the 1995 Act, he shall be punished as prescribed under the said provision. Therefore, for a person to attract penal consequences, he is found to have contravened any of the orders made under Section 3 of the 1995 Act. The Control Order, 2008 is an Order which was made by the State in exercise of the power conferred on it by Section 3 r/w Section 5 of the 1995 Act. If the detenus carry on any of their activities in contravention of any of the Clauses of the Control Order, 2008 such activities attract penal consequences as prescribed under Section 7 of the 1995 Act.
Clause 17 of the Control Order, 2008 envisages penalties for possessing cards, making false entries or diverting stock. The learned Government Pleader conceded that the said Clause applies to fair price shop dealers, nominated retailers and hawkers and therefore the same has no application to the detenus who do not fall in any of these categories.
The only other Clause on which the learned Government Pleader placed reliance is Clause 17(A) of the Control Order, 2008 which reads as under:
17.(A) Interruption in the process of Distribution:- No Fair Price Shop dealer or card holder or any person shall be allowed to cause interruption or interfere with the process of smooth distribution of scheduled commodities under Public Distribution system or other Government schemes at any level right from Food Corporation of India godown point to Fair Price Shop point, till the scheduled commodity reaches the intended beneficiary. Any such attempt of interruption or interfering with such process shall be treated as an abetment and be deemed to have contravened this order, thereby committing an offence under Section 8 of the Essential Commodities Act, 1955.
A careful reading of the above re-produced Clause shows that the same is attracted if a fair price shop dealer or cardholder or any person causes interruption or interferes with the smooth distribution of scheduled commodities under the public distribution system or other Government schemes at any level right from the Food Corporation of India godown to the fair price shop point, till the scheduled commodity reaches the intended beneficiary. From the unequivocal plain language of this provision, it is clear that it gets attracted when there is interruption of food grains from the stage of FCI godown till it reaches the end beneficiary i.e., cardholders. The provision does not comprehend any activity relating to any commodity falling under the Control Order, 2008 once it reaches the cardholder. There is no whisper either in the detention order or in the grounds of detention that any of the detenus is interrupting the smooth functioning of the scheduled commodities from the FCI godown point till it reaches intended beneficiary. On the contrary, the whole allegation against the detenus is that they have been purchasing the PDS rice from the cardholders. Therefore, this activity of the detenus completely falls outside Clause 17(A) of the Control Order, 2008. Once there is no prohibition on such activity either under the 1995 Act or under the Control Order, 2008 which undisputedly is the only Order that governs distribution and control of rice meant for public distribution system, the detenus cannot be accused of committing any offence. As the respondents failed to show that the detenus have contravened the provisions of any other Control Order framed under Section 3 of the 1995 Act, the alleged activities of the detenus are not liable for any penal action. Once their activities do not constitute an offence under law, their preventive detention under the provisions of the 1980 Act cannot be sustained.
Hence, the impugned orders of detention are set aside and consequently the detenus shall be forthwith released from jail. The writ petitions are accordingly allowed.
As a sequel to disposal of the writ petitions, the pending interlocutory applications shall stand disposed of as infructuous.
C.V.NAGARJUNA REDDY, J
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G.SHYAM PRASAD, J 13th July, 2016