Andhra Pradesh High Court - Amravati
Mutthukuru Prameela Devi vs The Collector And Dist Magistrate on 22 January, 2024
Author: U. Durga Prasad Rao
Bench: U.Durga Prasad Rao
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IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI
(Special Original Jurisdiction)
MONDAY, THE TWENTY SECOND DAY OF JANUARY,
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE U.DURGA PRASAD RAO
HON'BLE SMT. JUSTICE KIRANMAYEE MANDAVA
WRIT PETITION NO: 23379 OF 2023
Between:
MUTTHUKURU PRAMEELA DEVI
W/o M Srinivasulu Aged about 42 years, Occ: House Hold
R/o H No 19399 Telugupeta Banaganapalle Town Nandyal District
...PETITIONER(S)
AND
1. THE COLLECTOR AND DIST MAGISTRATE
Nandyal District Nandyal.
2. The State of Andhra Pradesh
Rep by its Principal Secretary Consumer Affairs Food and Civil
Supplies CSI Department Secretariat Guntur District.
3. The Superintendent,
Central Prison, Kadapa, YSR Kadapa District.
...RESPONDENTS
The Court made the following
ORDER:(Per Hon'ble Sri Justice U. Durga Prasad Rao) In the instant writ petition filed under Article 226 of Constitution of India the petitioner who is the wife of the detenue 2 M. Srinivasulu challenges the detention order in Rc C1/1165/M/2023, dated 17.08.2023 passed by the 1st respondent and consequential approval order in G.O.Rt.No.38, dated 25.08.2023 and confirmation order in G.O.Rt.No.50, dated 16.10.2023 issued by the 2nd respondent as illegal, arbitrary and violation of article 22 of the Constitution of India and for release of the detenue.
2. The 1st respondent having considered the material placed before him showing that the detenue was involved in the following 23 crimes for the offences U/s 420 IPC and Section 7(1) of Essential Commodities Act (for short "EC Act") in 19 crimes and U/s 420 IPC in 4 crimes and having been satisfied that the detenue is a habitual black-marketer and contravened the clauses of Andhra Pradesh Scheduled Commodities Dealers (Licensing, Storage and Regulation) Order 2008 (for short "APSCD ORDER 2008") and therefore provisions of Section 3(1) and (2) of The Prevention of Blackmarketing and Maintenance of Supplies of Essential 3 Commodities Act, 1980 (for short "Act 7 of 1980") apply to him ordered his detention.
1. Banaganapalli PS Cr.No.165/2013, dt: 11.10.2013 at 09.00 hrs U/s 420 IPC
2. Banaganapalli PS Cr.No.246/2014, dt: 11.10.2014 U/s 420 IPC and 7(1) of EC Act
3. Banaganapalli PS Cr.No.308/2014, dt: 27.11.2014 U/s 420 IPC and 7(1) of EC Act.
4. Banaganapalli PS Cr.No.228/2015, dt: 09.08.2015 U/s 420 IPC and 7(1) of EC Act
5. Banaganapalli PS Cr.No.251/2018, dt: 29.12.2015 U/s 406 IPC and 7(1) of EC Act
6. Banaganapalli PS Cr.No.282/2020, dt: 20.05.2020 U/s 420 IPC and 7(1) of EC Act
7. Owk PS Cr.No.173/2021, dt: 11.06.2021 U/s 420 r/w 34 IPC
8. Owk PS Cr.No.250/2021, dt: 13.09.2021 at 18.00 hrs U/s 420 r/w 34 IPC
9. Owk PS Cr.No.251/2021, dt: 13.09.2021 at 19.00 hrs U/s 406, 420 r/w 34 and 7(1) of EC Act.
10. Banaganapalli Ps Cr.No.252/2021, dt: 13.09.2021 at 20.00 hrs U/s 420 r/w 34 IPC
11. B. Atmakur PS Cr.No.66/2022, dt: 11.04.2022 U/s 420 IPC and Sec.7(1) of EC Act
12. Owk PS Cr.No.92/2022, dt:23.04.2022 U/s 420 IPC r/w 34 IPC.
13. Sanjamala PS Cr.No.80/2022, dt: 24.04.2022 U/s 420, 188 r/w 34 IPC and Sec. 7(1) of EC Act.
14. Sanjamala PS Cr.No.81/2022, dt: 24.04.2022 U/s 420, 188 r/w 34 IPC and Sec. 7(1) of EC Act
15. Banaganapalli PS Cr.No.151/2022, dt: 17.05.2022 U/s 420 r/w 34 IPC & 7(1) of EC Act.
16. Nandyal Taluk UPS Cr.No.175/2022, dt: 21.05.2022 u/s 420 r/w 34 IPC and Sec.7(1) of EC Act.
17. Gospadu PS Cr.No.91/2022, dt: 31.05.2022 U/s 420 IPC and Sec.7(1) of EC Act
18. Nandyal Taluk UPS Cr.No.228/2022, dt: 02.07.2022 U/s 420 r/w 34 IPC and Sec.7(1) of EC Act.
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19. Banaganapalli PS Cr.No.19/2023, dt: 20.01.2023 U/s 420 r/w 34 IPC and Sec.7(1) of EC Act.
20. Banaganapalli PS Cr.No.22/2023, dt: 22.01.2023 U/s 420 r/w 34 IPC and Sec.7(1) of EC Act.
21. Owk PS Cr.No.88/2023, dt: 05.06.2023 U/s 420 IPC and Sec. 7(1) of EC Act.
22. Allagadda Town PS Cr.No.88/2023 dt: 06.06.2023 U/s 420 r/w 34 IPC and Sec.7(1) of EC Act
23. Nandivargam PS Cr.No.61/2023, dt: 05.07.2023 U/s 420 IPC and Sec.7(1) of EC Act.
3. 1st respondent filed counter and opposed the writ petition. It is contended that the petitioner is a habitual bloc marketer engaged in the clandestine business of purchasing PD commodities (Rice) meant for public distribution system and by hoarding, diverting and selling the same without any valid license under APSCD ORDER 2008 through his associates and causing interruption to the process of supply of essential commodities to the beneficiaries and thus indulging in lawless activities which are prejudicial to the maintenance and supply of essential commodities to the community through public distribution system. It is further stated, he is also involved in criminal cases in Nandyal, Allagadda and Atmakur Sub divisions. In criminal cases of several police stations of Vijayawada city and they are all under investigation and thus the detenue is a habitual black-marketer. The detention order was 5 passed by following the rules. Since the offences were punishable under 7 years, the detenue was issued notices U/s 41A CrPC. Thus, the detaining authority has meticulously perused the material placed before him and scrupulously followed the rules and arrived at the subjective satisfaction to the effect that if such a habitual black marketer is let free, there will be an eminent possibility of his committing similar offences and causing interruption to the process of supply of essential commodities to the beneficiaries. The contention that the detenue was not so far convicted has no force because order of preventive detention can be made with or without prosecution and in anticipation or after discharge or even acquittal. Finally it is stated that the detention order was passed only to prevent him from committing further offences.
4. Heard, learned counsel for the petitioner Sri P. Nagendra Reddy and learned Special Government Pleader representing learned Additional Advocate General for respondents.
5. As can be seen, out of 23 crimes taken for consideration by the 1st respondent, in 20 cases the allegations are identical i.e., the detenue being the rice miller involved in illegal purchase of PDS 6 rice and polishing the same and transporting to different places including other States and selling them for profit and such dealing of the rice is without any license under APSCD ORDER 2008. These crimes are registered for the offences U/s 420 IPC and Section 7(1) of EC Act. That apart, in three cases i.e., in Cr.Nos.250/2021, 251/2021 of Owk PS and Crime No.252/2021 of Banaganapalli PS the detenue allegedly purchased paddy from the respective complainants and did not pay the amount and thus cheated the complainants. Those crimes were registered for the offences U/s 420 r/w 34 IPC. Considering all these crimes and having been satisfied that the detenue is a habitual black marketer engaged in clandestine business of purchasing PDS Commodities (rice) intended for public distribution system and by hoarding, diverting and selling the same without any valid license under APSCD Order 2008, the 1st respondent ordered his detention as per Section 3(1) and (2) of Act 7 of 1980.
6. In this backdrop, though several arguments are raised, the main plank of adjuration of learned counsel for the petitioner Sri P. Nagendra Reddy is that PDS Rice which also falls within the 7 general category of rice is not an essential commodity but only a scheduled commodity as per APSCD ORDER 2008 and by virtue of Notification in CCS.Ref.No.PI(3)/1831/2014, dated 09.04.2015 "paddy" and "rice" have been de-notified from the purview of said APSCD ORDER 2008 w.e.f 01.12.2014 and thereby the said order has no application to the aforesaid two commodities i.e., paddy and rice. In that view, learned counsel would emphasize, even assuming that procuration of PDS rice from the card holders and selling at higher price is a violation of the provisions of APSCD ORDER 2008, which generally is not, still by virtue of aforesaid Notification CCS.Ref.No.PI(3)/ 1831/2014, dated 09.04.2015, such activities of the detenue cannot be regarded as violation of APSCD ORDER 2008. He would further submit that except the above alleged violation, no other violation under the provisions of other laws was made out in the detention order. Learned counsel would thus strenuously argue that the detaining authority ordered detention without considering this crucial aspect and therefore the detention order per se is illegal and detenue deserved to be released.
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7. We find considerable force in the argument of learned counsel for the petitioner. As already mentioned supra, the main allegation against the detenue basing on the crimes in which he is involved is that he being a rice miller procures PDS rice from card holders and dealers and polishing the same and transporting to different places for gain without any valid license under APSCD ORDER 2008 and thus he is a habitual black marketer and commits violation of provisions of APSCD ORDER 2008.
8. It should be noted that the source of authority to order detention is U/s 3(1) and (2) of the Act 7 of 1980. 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, the authority mentioned in Section 3(1) of the Act can pass a detention order in order to prevent the detenue from committing such activities. Under explanation to Section 3(1) of the Act the expression "acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community" has been explained as follows:
"(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 9 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."
9. Now the accusation against the detenue is that he is a habitual black marketer and violated the provisions of APSCD ORDER 2008. It should be born in mind that in the impugned detention order no specific provision of APSCD ORDER 2008 was mentioned to have been violated by the detenue. Be that as it may, from the narration of the detention order the accusation can be understood as the detenue being a dealer has violated Clauses 5 and 7 enumerated in Form-B of APSCD ORDER 2008.
10. As per Clause 2(k) a 'dealer' means a person engaged in the business of purchase, movement, sale, supply, distribution or storage for sale of any of the commodities specified in the Schedule-I, whether as a wholesaler or retailer or producer or manufacturer or exporter but except importer, whether or not in 10 conjunction with any other business and includes his representatives or agent.
Then Clause 5 in Form-B states that the licensee shall not contravene the provisions of the APSCD ORDER 2008or any other Order relating to foodstuffs, or edible oilseeds or edible oils issued under the Essential Commodities Act, 1955 (Central Act 10 of 1955).
Clause 7 says that the licensee shall not. - (1) enter into any transaction involving purchase, sale or storage for sale all or any of the scheduled commodities in a speculative manner, prejudicial to the maintenance and easy availability of supplies of scheduled commodities in the market.
Schedule commodities are specified in Schedule I which includes rice (husked).
11. Thus a cumulative reading of the above provisions in APSCD ORDER 2008 would give an understanding that a dealer who obtains license to deal with scheduled commodities shall not contravene the provisions of APSCD ORDER 2008 and shall not 11 undertake transactions in Scheduled commodities in a speculative manner.
12. In the light of above understandable allegation, the notification CCS.Ref.No.PI(3)/ 1831/2014, dated 09.04.2015, a copy of which is filed by the petitioner shall be perused. The said notification is thus:
"GOVERNMENT OF ANDHRA PRADESH Office of the commissioner of Civil supplies, A.P. Hyderabad.
CCS.Ref.No.PI(3)/1831/2014 Dated:09.04.2015 SUB: CS - AP Scheduled Commodity Dealers (Licensing, Storage and Regulation) Order, 2008 - Clarification on Rice and Paddy - Reg. Ref: 1. GOI.S.O No.3543 (E) dt.29.11.2013
2.Lr.No.S-11/02/2015-ECR&E, dtd: 21.01.2015 of the Deputy Secretary to the GOI, Ministry of CA, F&PD, Dept. of F&PD.
3. CCS Ref.No.PI(3)/1831/2014 dt:13.02.2015
4.Collector (CS), Prakasam Rc.No.CS1/6A/397/2014, dt.10.03.2015.
5. R/o the E.G. Dist. RMA, dt.16.03.2015.
6. CCS.Ref.No.PI(3)/1831/2014, dt:24.03.2015.
7. Lr.No.S-11/02/2015-ECR&E, dtd: 27.03.2015 of the Deputy Secretary to the GOI, Ministry of CA, F& PD, Dept. of F&PD.
*** In view of lapse of the validty of GOI S.O.No.3543(E), dt:
29.11.2013 enabling the State Govt. to include Rice and Paddy as Scheduled Commodities requiring the dealers to take license and to maintain the prescribed stock limits as per the AP Scheduled Commodities Dealers (L&SR) Order, 2008, clarification has been sought for whether the APSCD (L&SR)Order is in force beyond 30.11.2014 in respect of rice and paddy.
The GOI in letters 2nd and 7th cited, has informed that the Dept. of F & PD and Dept. of Economic Affairs did not allow the extension for S.O.No.3543(E) (for rice/paddy beyond 30.11.2014) and said that extension is not required and may be allowed to lapse and further that with the lapse of central order on stock holding limits enabling the States / UTs to fix stock limit, any order issued by the States / UTs would also ceased automatically.
In view of lapse of the GOI S.O.No.3543(E), dt: 29.11.2013, the APSCD (LS&R) Order, 2008 is not applicable in respect of "Paddy" and "Rice" from 01.12.2014.
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But the AP 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 note of the above and take action accordingly.
Sd/- B. Rajasekhar.
Commisioner of Civil Supplies To All the Collectors (CS), All DSOs' Copy to : All Collectors The Director General, Vigilance & Enforcement, A.P., Hyderabad //Attested// Sd/-
Deputy Collector (Proc) A plain reading of the above notification gives an understanding that in view of the lapse of earlier GOI S.O.No.3543 (E), dated 29.11.2013, the APSCD (LS &R) ORDER 2008 was held to be not applicable in respect of "paddy" and "rice" from 01.12.2014. The detention order in this case was passed on 17.08.2023. Therefore, as on that date, the "rice" and "paddy" were not covered by APSCD ORDER 2008. Learned Special Government Pleader could not produce any subsequent notification showing re-inclusion of paddy and rice in the fold of APSCD (LS & R) Order 2008. Unfortunately, the Detaining Authority has not considered this aspect. Therefore, we agree with the submission of 13 learned counsel for the petitioner that the detention per se is illegal and consequently the detenue deserves to be released.
13. Accordingly, the Writ Petition is allowed and the detention order in Rc.C1/1165/M/2023, dated 17.08.2023 passed by the 1st respondent - The Collector & District Magistrate, Nandyal District, is hereby set aside and the detenue namely Mutthukuru Srinivasulu @ Don Seenu @ Oil Seenu, S/o M. Ramanjineyulu is directed to be released forthwith by the respondents, if the detenue is not required in any other cases. No costs.
As a sequel, interlocutory applications pending, if any, shall stand closed.
__________________________ U. DURGA PRASAD RAO, J ___________________________ KIRANMAYEE MANDAVA, J 22.01.2024 krk 14 THE HONOURABLE SRI JUSTICE U.DURGA PRASAD RAO HON'BLE SMT. JUSTICE KIRANMAYEE MANDAVA W.P.No.23379 of 2023 22nd January, 2024 krk