Madras High Court
State Represented By vs M/S.Mekala Traders on 29 April, 2019
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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
[Reserved on : 28.01.2019]
[Pronounced on : 29.04.2019]
CORAM :
THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN
Crl.A(MD).No.50 of 2009
State represented by:
The District Collector cum District Magistrate at
Thoothukudi. ... Appellant
..Versus..
M/s.Mekala Traders,
No.214, Great Cotton Road,
Thoothukudi,
rep.by its Proprietrix
Mrs.S.Mekala Devi ... Respondent
PRAYER: Criminal Appeal filed under Section 378 of Cr.P.C., against the order
dated 03.07.2006 in C.A.No.115 of 2003 on the file of learned Additional District
Judge, Fast Track Court No.2, Thoothukudi.
For Appellant : M/s.M.Ananthadevi
Government Advocate (crl.side)
For Respondent : Mr.P.Subbaraj
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JUDGMENT
The State is the appellant herein.
2. This Criminal Appeal has been filed against the order dated 03.07.2006 in C.A.No.115 of 2003 on the file of learned Additional District Judge, http://www.judis.nic.in Fast Track Court No.2, Thoothukudi.
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3. The case of the prosecution is that the Revenue Divisional Officer, Tirunelveli had conducted a vehicle check on 06.01.2000 and during his inspection, he intercepted one lorry containing 10.125 M.T of Public Distribution System rice and he seized the entire 10.125 M.T of Public Distribution System rice. The Revenue Divisional Officer, Tirunelveli sent a report to the District Revenue Officer, Tirunelveli under Section 6(A) of the Essential Commodities Act 1955. During enquiry, it was ascertained that the above said rice was moved from a Godown at Ettayapuram Road, Thoothukudi Town and hence, the District Revenue Officer, Tirunelveli sent information to the Special Tahsildar (C.S), Thoothukudi to check the Godown premises.
4. On receipt of information from District Revenue Officer, Tirunelveli, the Special Tahsildar (C.S), Thoothukudi inspected the Godown on 7.1.2000 and sealed the Godown in the Managing Director, Tamil Nadu Civil Supplies Corporation Limited, Chennai has been requested to depute the Quality Control officials of Tamil Nadu Civil Supplies Corporation Limited, Chennai inspected the Godown on 23.02.2000 and issued a quality certificate to the effect that the rice stored in the Godown belongs to Public Distribution System rice. Hence, the Special Tahsildar (C.S), Thoothukudi seized the entire quantity of 28,968 Metric Ton boiled rice and handed over the same to Tamil Nadu Civil Supplies Corporation Godown on 24.02.2000.
5. Further, action has been taken under Section 6(A) of Essential http://www.judis.nic.in Commodities Act, 1955 by the Collector, Thoothukudi. After completion of enquiry, 3 the entire quantity of 28,968 M.T of boiled rice was ordered to be confiscated to the Government by the Collector, Thoothukudi vide CSI/15709/2000, dated 09.10.2000.
6. Aggrieved against the order of the Collector, the respondent herein has preferred Crl.A.No.115 of 2003 on the file of the Additional District Judge/Fast Track Court No.II, Thoothukudi and the same was allowed on 03.07.2006 and hence, this appeal had preferred by the Appellant/State.
7. Ms.M.Ananthadevi, learned Government Advocate (Crl.Side) appearing for the State has contended that the Trial Court failed to see that the respondent has misused the permission granted to him to store the discoloured rice at Door No.109/4, Ettayapuram Road, Thiruchendur towards carry out for illegal purpose and to store Public Distribution System Rice that are wrongfully obtained by her.
8. The learned counsel for the respondent/accused has submitted that it is the specific case of the respondent herein that she had purchased 1116 of metric tons of decolorized rice from Tamil Nadu Civil Supplies Corporation in an auction conducted at Madurai and Dharmapuri and further he contended 651 metric tons of boiled rice purchased in auction at Madurai and she possessed necessary license issued by Civil Supplies Department and also contended that same rice was stored in the above said godown and also she selling the rice periodically in state of Kerala as per terms of permit issued by the Government.
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9. After hearing both sides and perusing the records, the points for determination arises in this appeal is,
i) Whether the order of confiscation passed by the District Collector is sustainable in law?
ii) Whether the order passed by the Additional District Judge/Fast Track Court No.2 in the appeal is sustainable in law?
10. On perusal of the records that produced before this Court, it is seen that the Special Tahsildar for Civil Supplies had checked the appellant's godown at 109, Ettaiyapuram, Thoothukudi and on suspicion sealed the godown on 07.01.2000. Then, he informed the Commissioner for Civil Supplies at Chennai to send for vigilance squad to inspect the goods stocked in the sealed premises on 23.02.2000 the vigilance squad visited the sealed premises and in the presence of Special Tahsildar (Civil Supplies) the boiled rice stored was analyzed and reported that the stock belongs to category of Public Distribution System Rice.
11. Thereupon Enquiry under 6(A) of Essential Commodities Act was conducted and the enquiry authority, the Collector had passed order of confiscation of the stock.
12. It appears from the records that necessary notice was sent and http://www.judis.nic.in the husband of the respondent herein appeared before the District Collector and 5 contended that the seized stocks were not PDS Rice and further stated that she had purchased 1116 Metric tone of discoloured rice from the Tamil Nadu Civil Supplies Corporation in the auction conducted at Madurai and Dharmapuri. The rice purchased by her in auction from Madurai was 651 metric tones of boiled rice with necessary license from the Civil Supplies Department. She had used Door No.109 of Ettaiyapuram Road, Thoothukudi as an additional godown. She had transported about 187 metric tone of boiled discoloured Rice from Madurai Civil Supplies Corporation to the Thoothukudi additional godown. She is also contended that she is processing and upgrading the decoloured rice and is periodically selling it at Kerala State. On 07.01.2000, she was having 33 metric ton of processed and upgraded boiled rice in her godown.
13. Based upon the above submissions, the learned counsel for the respondent herein as stated that the search and seizure of the premises on 7.1.00 and seizure on 24.02.2000 are unlawful.
14. With regard to the contention of the respondent that decoloured rice auctioned by the Civil Supplies Corporation is not the protect of the farmers. Furthermore, the license of the respondent with regard to the purchase of 1116 metric tons of decoloured rice from the Tamil Nadu Civil Supplies Corporation in the auction conducted at Madurai and Dharmapuri. Furthermore, the holding of license for the purchase of boiled rice from the Civil Supplies Department were also been not disputed.
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15. It is the suggestive case of the respondent that she had transported about 1.87 metric tons of boiled coloured rice from Madurai Civil Supplies Corporation to the Thoothukudi Additional Godown and she was processing the same and upgrading the decoloured rice in a periodical manner. Thereafter, selling at Kerala State.
16. According to the learned Government Advocate (Crl.Side), the District Collector made his decision based upon the Vigilance Report that the disputed rice belonged to variety of PDS rice and the corresponding order is found at Page No.17 of the Government files. In the said report, it is mentioned that discoloured rice purchased in auction at Madurai was containing 20% of discolouration.
17. It appears from the lower Court records that the suggestive case of the respondent and the undisputed position that the respondent is holding a license to purchase the decoloured rice from the Tamil Nadu Civil Supplies Corporation and also he is in the process of converting the same by boiling and processing. Thereafter, upgrading the decoloured rice for selling in the Kerala State is accepted.
18. Taking into consideration the stand taken by the respondent/owner, the lower Appellate Court has given a finding that in view of the http://www.judis.nic.in undisputed position that the respondent is having a valid license issued by the State 7 to purchase the dis-coloured rice from Civil Supplies Corporation and having necessary license for processing the said rice after upgradation and had processed to sell it in the other State (since sale is banned only in the State of Tamil Nadu) has accepted the stand of respondent.
19. Furthermore, the lower Appellate Court has come to the conclusion that as the respondent has processed the decoloured rice purchased from the Civil Supplies Corporation. Subsequently, upgraded by boiling a decoloured rice and such a explanation coupled with statistics furnished by him (in the objection statement filed before the District Collector) as to the quantum of discoloured, she has purchased from the Civil Supplies Corporation at Madurai to Dharmapuri and number of the quantim of rice already sold and the quantum of rice now kept in [Godown], the Additional District Judge has taken note of the same had accepted the explanation offered by the respondent herein and allowed the appeal.
20. Now, the point for consideration in this appeal is whether the order of confiscation passed by the District Collector is in accordance with law?.
21. According to Mrs.M.Ananthadevi, learned Government Advocate (Crl.Side), the District Collector made his decision based upon the vigilance report that the disputed rice belonged to the variety of PDS rice and corresponding order is found at page No.17 of the files.
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22. On a perusal of the said vigilance report, it is seen that the decoloured rice purchased in an auction at Madurai was contained 20% of decolouration. On analysing of the disputed samples, which were taken from the Godown of the respondent, quality control official has given a clear report on calculating and assessing that the disputed rice belongs to PDS rice, it does not belongs to decoloured rice category.
23. On a perusal of the lower Court records, it is seen that the respondent has projected a suggestive case that they have holding proper licence to purchase the discoloured rice from the Tamil Nadu Civil Supplies Corporation and thereupon converting the same by boiling and processing, subsequently upgrading the decoloured rice and selling in the State of Kerala.
24. It is further seen that the respondent has also filed an explanation on the above lines along with statistics furnished by him in the objection statement filed before the District Collector as to the quantum that was purchased from the Civil Supplies Corporation at Madurai and Dharmapuri and the quantum of rice already sold and the quantum of rice now kept in the Godown which was seized by the Collector, Thookudi District. The lower Appellate Court has accepted the explanation (viz., the suggestive case that) what was seized is only the upgraded decoloured rice said to have been purchased by the respondent from the Civil Supplies Corporation under proper license.
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25. But it is to be stated that the report of analyst is to the effect that the rice seized from the Godown of the respondent containing 6% of the decolouration which was not disputed by the respondent owner in the manner known to law. It is seen from the proceedings of the District Collector that the Special Tahsildar, Civil Supplies Corporation has inspected the Godown of the respondent and found that there were 468 boiled rice bags weighing 28.968 metric tonnes and also raw rice of 67.660 metric tonnes.
26. In order to ascertain whether the rice is the decoloured rice (viz.,) that was taken on lender by the respondent with the Tamil Nadu Civil Supplies Corporation (or) rice is of the PDS variety, the Civil Supplies Corporation was addressed to send the quality control team. Accordingly, the Assistant Manager, Quality Control, Tamil Nadu Civil Supplies Commercial Corporation has inspected the Godown of the respondent and found that the raw rice stored in the Godown are tendered rice (viz.,) rice taken on tender from the Civil Supplies Corporation. However, the boiled rice stored in the Godown are of the quality of the PDS rice and accordingly, given a certificate to that effect. Based upon the quality certificate issued by the Quality Assistant-Control Manager of Civil Supplies Corporation on 23.02.2000, the said extent of boiled rice measuring 468 bags to the tune of 28.968 metric tonnes were seized by the Special Tahsildar under the receipt 3439.
27. It remains to be stated that during the proceedings before the District Collector under the Essential Commodities Act, the Assistant Manager, http://www.judis.nic.in (Quality Control) Civil Supplies Commercial Corporation was examined as a second 10 witness and he had clearly deposed about the inspection and also found that there are 28.968 metric tonnes of boiled rice and 67.660 metric tonnes of raw rice and the boiled rice are not tendered rice as claimed by the respondent-owner, while those rice are of PDS variety. Based upon the report given by the quality controller, total extent of 28.968 metric tonnes have been seized.
28. Furthermore, according to the statement of respondent owner, she has taken the boiled rice from Madurai Zone of the Civil Supplies Corporation. According to her, she has taken the rice in an auction from the Civil Supplies Corporation Zone at Madurai and Dharmapuri, to the extent of 1116.807 metric tonnes. Out of which, from Madurai Zone, she has taken 654.356 as boiled rice and from Dharmapuri Zone, she has taken 462.451 metric tonnes of raw rice. Out of which, she has moved 187.600 metric tonnes of boiled rice from Madurai Zone and 67.660 metric tonnes of raw rice from Dharmapuri Zone. The District Collector, who has held the enquiry based upon the statistics provided by the respondent owner as well as the quantity of rice seized under seizure mahazar, has found that though the respondent owner claimed to have purchased 187.600 metric tonnes of boiled rice from Madurai Zone and out of which, she is said to have transported to Kerala State after upgrading 153.750 metric tonnes. But as per the seizure that was seized from the Godown of the respondent, 33.850 metric tonnes of boiled rice ought to have been in the Godown. On the contrary, only 28.968 metric tonnes of boiled rice alone was present in the Godown and further held the statistics furnished by the respondent does not tally with actual stock in the godown and accordingly on both http://www.judis.nic.in grounds disbelieved the version of suggestive case. On re-appreciation of evidence 11 on record, this Court finds that there is no valid ground to reject the finding of the District Collector/Appellant and hence, the said finding is hereby restored.
29. Yet another point is that apart from the discrepancies in the quantum of rice moved from Madurai and Kerala, this Court is of the considered view that the certificate issued by the Assistant Manager, Quality Control of the Tamil Nadu Civil Supplies Corporation with regard to the boiled rice and raw rice assumes significance.
30. The quality controller, who has given a certificate and was examined as witness No.2, has categorically stated that raw rice that was kept in the Godown is a tendered rice while the boiled rice is not of the PDS variety and the said finding of the quality certificate issued by the competent person on expert evidence was not challenged and the same remains unquestioned. It remains to be stated that even as per the version of the respondent, the quality of the PDS rice is 6% and the respondent/owner has not demonstrated as to the possibility of making 20% of discolouration tender rice into 6% of the discolouration rice of the PDS rice and the same has not been probalized by the respondent. Thus, this Court finds that the respondent/owner has failed to probalize the suggestive case.
31. In the absence of any positive evidence to the effect that the discoloured rice of 20% can be upgraded to discolouration. The said plea of the suggestive case of the defence cannot be accepted. At this juncture, it remains to http://www.judis.nic.in be stated that the quality controller, witness No.2, has no axis to grind against the 12 respondent/owner and the certification of the sample was done on the very same date in the presence of the representative of the respondent/owner also assumes significance. Further, the Assistant Manager, quality controller has conducted the enquiry in all fairness and held that the raw rice that was found in the Godown of the respondent is coloured tender rice. However, in respect of the boiled rice, he has certified it as one of a PDS variety category and thus, the certificate of the quality controller assumes significance and this Court is of the considered view that in view of the said certificate issued by the Assistant Manager, quality controller, witness No.2, who has taken the sample and conducted the test and issued the certificate in all fairness, as discussed supra, and the said finding of the witness remains unchallenged in cross-examination and hence, this Court finds that the appellant/revenue has discharged the initial burden upon it to demonstrate before the Court that what was seized is PDS variety and therefore, the burden now shifted on to the respondent/owner to show and demonstrate that what was seized in the Godown was originally a decoloured tendered rice taken on tender by him and by the process of upgrading and polishing 20% of discolouration was converted into 6% of the quality is upon the person who claims so viz., respondent. Thus, the onus of proof is upon the owner to discharge the said plea in the manner known to law. However, to the dismay, there was no positive evidence on the side of the owner to show that by the alleged process of upgrading and polishing 20% of discolouration rice can be converted into 6% of discolouration was not proved and nor even any evidence has been let in and thus, this Court holds that the respondent/owner has miserably failed to probablise the suggestive case. http://www.judis.nic.in 13
32. Consequently, the respondent/owner has not discharged the onus of proof upon her shoulder to probablise the case and in view of the finding in the preceding paragraphs, the revenue has demonstrated that what was seized in the respondent's Godown is a PDS rice holds good. Consequently, the order of confiscation passed by the District Collector is held to be proper and it does not warrant any interference and hence, this Court is of the considered view that the trial Court has committed an error in supplementing his opinion dehors the report of the expert opinion of the quality control without any positive evidence in this regard by the respondent/owner and hence, the said finding of the lower Appellate Court that what was seized is a tender rice is hereby stands vacated and as discussed supra, it is held that what was the seizure is only PDS rice and the possession of PDS rice for recirculation is against the law and hence, the order passed by the District Collector is restored and both the points are answered accordingly.
33. Accordingly, this Criminal Appeal is allowed and the order dated 03.07.2006 passed by the learned Additional District Judge, Fast Track Court No.2, Thoothukudi, in C.A.No.115 of 2003, is set aside. The order of confiscation passed by the District Collector, Thoothukudi, is restored.
29.04.2019 nvi To http://www.judis.nic.in The Additional District Judge, Fast Track Court No.2, Thoothukudi. 14
RMT.TEEKAA RAMAN,J., nvi Judgment in Crl.A.(MD) No.50 of 2009 29.04.2019 http://www.judis.nic.in