Andhra Pradesh High Court - Amravati
Dasari Venkata Srinivasa Rao, vs State Of Andhra Pradesh, on 20 January, 2020
Author: M. Satyanarayana Murthy
Bench: M. Satyanarayana Murthy
IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI
WRIT PETITION No19540 OF 2019
% Dated 20.01.2020
#
Dasari Venkata Srinviasa Rao
Proprietor, Shanmukha Rice Traders
Shop No.24, Muslim Complex
Akividu, West Godavari District and another
..... Petitioners
Vs.
$
State of Andhra Pradesh
Rep. by its Principal Secretary
Department of Consumer Affairs
Food and Civil Supplies,
Secretariat, Velagapudi, Amaravati and two others
..Respondents
JUDGMENT PRONOUNCED ON: 20.01.2020
THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY
1. Whether Reporters of Local newspapers
may be allowed to see the Judgments?
2. Whether the copies of judgment may be marked
to Law Reporters/Journals
3. Whether Their Ladyship/Lordship wish to see
the fair copy of the Judgment?
MSM,J
WP No.19540 of 2019
2
* THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY
+ WRIT PETITION No19540 OF 2019
% Dated 20.01.2020
#
Dasari Venkata Srinviasa Rao
Proprietor, Shanmukha Rice Traders
Shop No.24, Muslim Complex
Akividu, West Godavari District and another
..... Petitioners
Vs.
$
State of Andhra Pradesh
Rep. by its Principal Secretary
Department of Consumer Affairs
Food and Civil Supplies,
Secretariat, Velagapudi, Amaravati and two others
..Respondents
! Counsel for the petitioner : M/s. Balaji Medamalli
^ Counsel for the respondent :
1. Learned Government Pleader for Civil Supplies
2. Learned Government Pleader for Home
<GIST:
> HEAD NOTE:
? Cases referred
1. AIR 1963 SC 666
2. AIR 2009 SC 3250
3. (1981) 2 SCC 45
4. (1998) 3 PLJR 911
5. AIR 1982 SC 58
MSM,J
WP No.19540 of 2019
3
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION No.19540 OF 2019
ORDER:
This writ petition is filed under Article 226 of the Constitution of India, to issue Writ of Mandamus, declaring the action of the respondent authorities in seizing 150 Quintals (50 kgs x 30 bags) of broken rice along with lorry bearing No.AP 16Y 3886, initiating proceedings under Section 6-A of the Essential Commodities Act, pursuant to the panchanama dated 06.11.2019 and also registering Crime No.282 of 2019 for the offence punishable under Section 420 of Indian Penal Code (for short 'I.P.C') and Sections 7(1) and 7(A) of the Essential Commodities Act,1955, as highly illegal, arbitrary and violative of provisions of Essential Commodities Act and Andhra Pradesh State Targeted Public Distribution System (Control) Order, 2018 (for short 'Control Order, 2018'), consequently direct the respondent authorities to release the seized stock under cover of panchanama dated 06.11.2019 and lorry bearing No.AP 16Y 3886 forthwith.
The first petitioner herein is a proprietor and trader of rice and the second respondent is the owner-cum-driver of lorry bearing No.AP 16Y 3886. Both the petitioners jointly filed this petition for the relief stated above, alleging that the first petitioner is carrying on rice business for the past seven years and the second petitioner is the owner-cum-driver of lorry bearing No.AP 16Y 3886. The broken rice purchased from various persons was sold in favour of M/s. Maruthi Poultry Farm, Khandavalli, Peravalli Mandal, as the stock of 150 Quintals was sold under a bill dated 05.11.2019 and the entire stock of 300 bags weighing 50 kgs each was loaded in the lorry bearing MSM,J WP No.19540 of 2019 4 No.AP 16Y 3886. While the lorry was on its way, the fourth respondent intercepted the vehicle and seized entire stock of broken rice along with the lorry, suspecting that this stock in transit is Public Distribution System (PDS) rice and after the seizure, rice and lorry bearing No.AP 16Y 3886 was handed over to the third respondent. The third respondent initiated proceedings under Section 6-A of Essential Commodities Act before the second respondent. Aggrieved by the same, the present writ petition is filed before this Court.
The main ground urged before this Court is that the rice was taken out of the Essential Commodities Act, 1955, by way of an order passed by the Ministry of Consumer Affairs, Food and Public Distribution, Government of India in G.S.R.104(E) dated 15.02.2002 by exercising powers conferred under Section 3 of Essential Commodities Act, 1955, under Removal of (Licensing Requirements, Stock Limits and Movement Restrictions) on Specified Food Stuffs Order, 2002. The same has been extended from time to time. Therefore, there is no restriction in the movement, stocking of rice, but the fourth respondent has intercepted the vehicle and seized the entire stock and initiated proceedings apart from proceedings under Section 6-A of the Essential Commodities Act. Therefore, the very seizure of rice or broken rice under the cover of panchanama on the pretext that it is Public Distribution System (PDS) rice and also seizure of lorry bearing No.AP 16Y 3886 is illegal and arbitrary.
It is further contended that the lorry bearing No.AP 16Y 3886 is having valid permit and the driver is also having a valid license and that apart, the Government of India exempted paddy and rice from the purview of Essential Commodities Act with a liberty to the State MSM,J WP No.19540 of 2019 5 Government concerned to save any of the Control Orders which are required to be continued. Except the Rice Procurement Levy Control Order, 1984, no other control order including the Public Distribution Order, 2008 was saved. Even the present Control Order, 2018 is also not saved. Thus, there is no restriction either on the movement or on stocking of the rice, but, seized the stock and lorry, initiated criminal prosecution and so also proceedings under Section 6-A of Essential Commodities Act, erroneously and contrary to the law and requested to declare the action of the respondent authorities in seizing 150 Quintals (50 kgs x 30 bags) of broken rice along with lorry bearing No.AP 16Y 3886 and also initiating proceedings under Section 6-A of the Essential Commodities Act, pursuant to the panchanama dated 06.11.2019 and also registering Crime No.282 of 2019 for the offence punishable under Section 420 of I.P.C and Sections 7(1) and 7(A) of the Essential Commodities Act,1955, as highly illegal, arbitrary and violative of provisions of Essential Commodities Act and Control Order, 2018 and consequently to direct the respondent authorities to release the seized stock under cover of panchanama dated 06.11.2019 and lorry bearing No.AP 16Y 3886 forthwith.
At the stage of admission, Sri Balaji Medamalli, learned counsel for the petitioner vehemently contended that, when there is no restriction on movement and stocking of rice/broken rice, in view of G.S.R.104(E) dated 15.02.2002, registration of crime and initiation of proceedings, seizing the rice/broken rice and vehicle is illegal.
Whereas, learned Assistant Government Pleader for Civil supplies placed on record, written instructions dated 02.12.2019 received by him, admitting seizure of both stock and lorry bearing No.AP 16Y 3886, as the stock being transported is PDS rice. Since MSM,J WP No.19540 of 2019 6 the lorry is transporting PDS rice distributed to Below Poverty Line Cardholders in Ajjamuru and neighbouring villages of Akiveedu Mandal and in turn selling the same in bulk is nothing but illegal transportation of PDS rice from Akiveedu to the poultry farms in Khandavalli Village of Peravali Mandal, Eluru, West Godavari District. Therefore, illegal procurement and transportation of PDS rice is violative of Clauses 19 (e)(f) and 20(j) of the Control Order, 2018 and thus violated Control Order, 2018. Therefore, seizure of lorry bearing No.AP 16Y 3886 and PDS rice collected from B.P.L. cardholders is in accordance with the provisions of the Control Order, 2018, initiation of proceedings under Section 6-A of Essential Commodities Act is also in accordance with law and requested to dismiss the petition.
The undisputed facts are that, the first petitioner is transporting rice of 150 Quintals (300 bags x 50 kgs) in lorry bearing No.AP 16Y 3886, stock and lorry were seized in the mid-way while transporting to M/s. Maruthi Poultry Farm of Khandavalli Village of Peravali Mandal of West Godavari District, so also proceedings wee initiated under Section 6-A of Essential Commodities Act, Crime No.282 of 2019 on the file of Undi Police Station was registered against these petitioners. The only dispute is whether such transportation of P.D.S rice is violative of Control Order, 2018, and attracts Section 6-A of Essential Commodities Act.
Clause 19 of the Control Order, 2018 deals with Prohibition against applying for fresh/duplicate ration card or misuse of commodities. According to Sub-clause (e) of Clause 19, no person shall resort to resale the commodities drawn under Targeted Public Distribution system either with collusion of fair price shop MSM,J WP No.19540 of 2019 7 dealer/other person leading to recycling/change of quality, exchange etc. According to Sub-clause (f) of Clause 19, no purchase shall purchase rice supplied/intended for supply through Public Distribution System either from the cardholder or from the fair price shop dealer or any middle man or other source. Otherwise, such fair price shop dealer or middle man or other person involved shall be liable for criminal action and imposition of penalty as may be fixed by the competent authority.
Clause 20 of the Control Order, 2018, deals with power of entry, inspect, search and seize the scheduled commodities, ask questions for production of documents etc. According to Sub-clause
(j) of Clause 20 of the Control Order, 2018, the inspecting authorities as and when found any vehicle involved in diversion of scheduled commodities shall send a report to the concerned Transport Department Officials recommending for cancellation of driving license of the driver and goods carrier certificates of such vehicle besides seizing of scheduled commodities along with vehicle involved and file complaint under Section 6-A of Essential Commodities Act, 1955, before the District Collector/Joint Collector as the case may be and file complaint under Section 7 of Essential Commodities Act, 1955 and the provisions of Criminal Procedure Code attracts to this case before the Station House Officer concerned.
On overall consideration of this provision of Control Order, 2008, equivalent to the provisions referred above of Control Order, 2018, purchase of resale of rice supplied under Public Distribution System is an offence. Though, the movement of stocking of rice is deleted from the provisions of Essential Commodities Act, still, purchase of essential commodities i.e P.D.S rice is an offence.
MSM,J WP No.19540 of 2019 8 Therefore, initiation of proceedings for violation of Clause 19(e) & (f) by the inspecting authorities in terms of Clause 20(j) of the Control Order, 2018 cannot be declared as illegal and arbitrary.
Thus, transporting Public Distribution System Rice before it reaches the intended beneficiaries i.e. card-holders amounts to interruption of Public Distribution process under A.P. State Public Distribution System (Control) Order 2008. Similarly, purchase or resale of PDS rice is an offence under Clause 19 of the Control Order, 2019. The word 'any person' referred in Clause 19 of the Control Order, 2018 indicates every person, who purchases or resales the P.D.S. rice and such Public Distribution Process is liable for punishment under Sub-clause (f) of Clause 19 of the Control Order, 2019. At the same time, if any person contravenes any provisions of the Control Order, he/she shall be liable for punishment under Section 7 of the Act. Vide Clause 21(d) of Control Order. Any authorized fair price shop dealer or any other person who interfere with the process of distribution or abet the contravention of any of the provisions of this Order or the terms and conditions of authorization or the directions issued by the State Government, Commissioner or appointing authority, shall be prosecuted by the respective Station House Officer on receipt of report from the inspecting authority vide Clause 22(2).
Section 7 deals with penalties against a person, who contravened any of the order made under Section 3 of the Essential Commodities Act.
Section 3 of the Essential Commodities Act deals with powers to control production, supply, distribution, etc. of essential MSM,J WP No.19540 of 2019 9 commodities and it permits the Central Government to pass any control order for securing equitable distribution of essential commodities and availability of fair prices or for securing any essential commodity for the defence of India or the efficient conduct of military operations, and provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein by any order. Thus, A.P. State Public Distribution System (Control) Order, 2008 is a control order issued by the Government in exercise of power conferred under Section 3 of the Essential Commodities Act.
In any prosecution for any offence under the Essential Commodities Act which requires a culpable mental state on the part of the accused, the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution as per Section 10-C of the Essential Commodities Act. "Culpable mental state" includes intention, motive, knowledge of a fact and the belief in, or reason to believe, a fact. For the purpose of Section 10-C of the Act, a fact is said to be proved only when the Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability. Thus, the statutory presumption shall be drawn as per Section 10-C of the Act, when the petitioners are found transporting PDS rice. In the prosecution, if any, launched against them by filing Charge Sheet would give raise to a defence that he had no mens rea and in the event of his failure to rebut the presumption, the Court can presume that the petitioners/accused have committed an offence.
MSM,J WP No.19540 of 2019 10 Learned counsel for the petitioner would contend that, when no enquiry is conducted to find out whether the rice seized is a broken rice is P.D.S rice, seizure of stock and lorry for the alleged contravention of Sub-clauses (e) & (f) of Clause 19 of the Control Order, 2018, is a serious illegality, more particularly, movement of rice is removed from Section 3 of Essential Commodities Act.
Learned Assistant Government Pleader for Home contended that when the crime is registered under Section 420 of I.P.C., proof of possession of PDS rice is sufficient and the Court can conclude that it is only for wrongful gain. In support of his contention, he placed reliance on a judgment of the Apex Court rendered in Tulsi Ram v. State of U.P1, wherein it is held that it was not necessary to prove that there occurred wrongful gain and wrongful loss; establishment of one of them either wrongful gain or wrongful loss is sufficient to convict the accused for the offence of cheating.
Learned Assistant Government Pleader for Home further contended that when the petitioner sought for quashing of proceedings at the threshold i.e. proceedings initiated under Section 6-A of the Essential Commodities Act and Crime No.282 of 2019, instead of release of P.D.S. rice and lorry bearing No.AP 16Y 3886 which was transporting the alleged P.D.S rice stock, the Court has to exercise its discretionary power sparingly keeping in mind various principles laid down by the Apex Court and in support of this contention, he placed reliance on a judgment reported in Chunduru Siva Ram Krishna and Another. v. Peddi Ravindra Babu and Another2, where the Apex Court held that when at an initial stage a 1 AIR 1963 SC 666 2 AIR 2009 SC 3250 MSM,J WP No.19540 of 2019 11 prosecution is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made in the complaint filed prima facie establish the offence. But at this stage, the principle laid down in the above said judgment is not relevant to the present facts of the case.
Learned Assistant Government Pleader for Home placed reliance on K. Janardhan Pillai and another v. Union of India and others3 to contend that rice being transported is recycled PDS rice and it is food stuff within the definition of section 2 (a) (v) of the Central Act and the Apex Court defined the food stuff as follows:
"'Foodstuffs' in the wider sense as including all articles of food which may be consumed by human beings after processing. It is in this wider sense that the said term has been understood by Indian Courts as can be seen from some of the decisions to which the Court shall presently refer."
Having regard to the history of legislation relating to foodstuffs dealt with above and the object of the Central Act which regulates the production, supply and distribution of essential commodities amongst the poverty-stricken Indian people, the expression 'foodstuffs' should be given a wider meaning as including even raw materials which ultimately result in edible articles. Any interpretation that may be given in this case should not be governed by its consequence on the impugned Order but in the light of the importance of the Central Act in the context of the national economy. A narrow interpretation may result in the exclusion of several articles from the purview of the Central Act although nobody has entertained any doubt so far about their being essential commodities. Further, in the said judgment, the Apex court held that, it is well known that the 3 (1981) 2 SCC 45 MSM,J WP No.19540 of 2019 12 food eaten by human beings consists of cereals like wheats rice of other coarse grains, pulses, oilseeds, vegetables, sugar, fruits and nuts, animal foodstuffs and sea food like meat, beef, mutton and fish and dairy products like milk, butter, eggs etc. According to Webster's Third New International Dictionary, the word 'food' means fodder' also. One of the meaning of the word 'food' given in that Dictionary is 'material consisting of carbohydrates, proteins and supplementary substances (as minerals, vitamins) that is taken or absorbed into the body of an organism in order to sustain growth, repair, and all vital processes and to furnish energy for all activity of the organism'. In the same Dictionary 'foodstuff' is defined as 'a substance with food value' and 'the raw material of food before or after processing'. One of the usages of the said word is given as 'a bountiful crop of cereal foodstuffs'. Therefore, 'foodstuff' need not necessarily mean only the final food product which is consumed. It also includes raw food articles which may after processing be used as food by human beings.
By relying on the above judgment, learned Assistant Government Pleader for Civil Supplies contended that the petitioners found transporting recycled PDS rice, which is food stuff and also comes within the definition of 'Food Stuff'. Thereby, transporting such food stuff is nothing but contravention of A.P. State Public Distribution System (Control) Order, 2018. Same principle was laid down by the Patna High Court in Raj Kiran Das v. The State of Bihar & Another4.
Finally, it is contended by the learned Assistant Government Pleader for Home that, when it is alleged that the petitioners 4 (1998) 3 PLJR 911 MSM,J WP No.19540 of 2019 13 contravened a particular control order, which is in force and covered by the Essential Commodities Act, they have to comply with the same and failure to comply with the specific control order would amount to an offence and in support of his contention he placed reliance on a judgment of the Apex Court rendered in State of Bihar v. Gulab Chand Prasad5, wherein the accused violated the statutory order covering Soda ash, which is in force by then, and the dealer violated Clauses 3 and 4 of the Order. When the accused approached the Court to quash the proceedings, High Court quashed the complaint, but the matter carried to the Supreme Court. The Supreme Court made a serious comment that it is unwise to ignore the existence of a subsisting order and to dispose of a proceeding as if no such order was there and set aside the order of High Court quashing the complaint.
In the present case, though, the movement of rice is removed from Section 3 of the Essential Commodities Act, but still, the Control Order, 2018 controls such resale and purchase of PDS rice either directly from dealer or middlemen or the cardholders and prescribed penalties besides criminal prosecution against the person against who flouted Clause 19 of the Control Order, 2018. But, the allegations made in the mediators report and F.I.R in Crime No.282 of 2019 are suffice to conclude prima facie that the petitioners contravened Sub-clauses (e) & (f) of Clause 19 of the Control Order, 2018, which is penal in nature, such person who interrupted public distribution is liable for prosecution as per Clause 19(f), 21(d) and 22(2) of the Control Order, 2018.
5 AIR 1982 SC 58 MSM,J WP No.19540 of 2019 14 The allegations made in the F.I.R discloses commission of an offence and when the officials under the Control Order, 2018 intercepted the vehicle and found transporting PDS rice in contravention of Sub-clauses (e) & (f) of Clause 19 of the Control Order, 2018, by exercising power under Article 19(f), 21(d) and 22(2) of the Control Order, 2018, the same cannot be said to be an illegality. If, the prosecution is able to prove that the PDS rice was diverted to the black market or otherwise in contravention of Sub- clauses (e) & (f) of Clause 19 of the Control Order, 2018, by producing satisfactory evidence that the rice being transported was PDS rice, the prosecution may succeed unless presumption under Section 10(c) of Essential Commodities Act is rebutted. Therefore, mere release of the rice i.e. ordinary rice in the movement of rice in the public market would not enure any benefit to transport PDS rice by purchase or resale in contravention of Sub-clauses (e) & (f) of Clause 19 of the Control Order, 2018. Therefore, initiation of criminal prosecution against these petitioners vide Crime No.282 of 2019 and proceedings under Section 6-A of the Essential Commodities Act for seizure of PDS rice stock allegedly found being transported and the lorry, exercising power under Section 6-A of Essential Commodities Act cannot be said to be a serious illegality and therefore, I am unable to accept the contention of the learned counsel for the petitioners, while upholding the contention of the learned Assistant Government Pleader for Civil Supplies holding that there is prima facie material that these petitioners contravened Sub-clauses (e) & (f) of Clause 19 of the Control Order, 2018, as seizure of both rice stock and lorry is in consonance with the power conferred by Clause 20 of the Control Order, 2018, subject to establishing that the stock seized is PDS rice purchased from the MSM,J WP No.19540 of 2019 15 cardholders or middlemen or from the fair price shop dealer(s). Such question would arise only during trial, but not at this stage. Therefore, on any of the grounds, more particularly, that movement and stocking of rice is outside the purview of Section 3 of Essential Commodities Act, the proceedings initiated against these petitioners, both criminal and proceedings under Section 6-A of Essential Commodities Act cannot be set-aside and if the petitioner is entitled to claim interim custody of the rice stock of the vehicle, the petitioners are at liberty to file appropriate application under Sub- Section (2) of Section 6-A of Essential Commodities Act before the Joint Collector, where Section 6-A of Essential Commodities are pending or before the jurisdictional Magistrate before whom the lorry and stock is seized is produced by the authorities concerned in connection with Crime No.282 of 2019 by filing an application under Section 451 of Cr.P.C and on filing such application either before the Joint Collector under Sub-section (2) of Section 6-A of Essential Commodities Act or before the jurisdictional Magistrate, the same shall be disposed of in accordance with law, within a week from the date of filing such application.
On overall consideration of the entire material on record, I find no ground to quash the proceedings in Crime No.282 of 2019 on the file of Undi Police Station, West Godavari District or proceedings initiated before the Joint Collector under Section 6-A of the Essential Commodities Act and also do not find any ground to release both the stock and lorry bearing No.AP 16Y 3886. Consequently, the writ petition is liable to be dismissed, as it is devoid of merits, leaving it open to the petitioners to take appropriate steps, as discussed above.
MSM,J WP No.19540 of 2019 16 In the result, writ petition is dismissed. No costs. Consequently, miscellaneous petitions pending if any, shall stand dismissed.
__________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date:20.01.2020 sp