The Hon’ble Sri Justice C.V.Nagarjuna Reddy Writ Petition No.37905 of 2014 Dated 17.12.2014 Between:
Morampudi Satyanarayana And The State of A.P., rep. by its Prl.Secretary Civil Supplies Dept., Hyderabad and 3 others.
…Petitioner …Respondents Counsel for the petitioner: Mr.MPVNV.Sastry Counsel for respondent Nos.1 to 3: GP for Civil Supplies (AP) The Court made the following:
Order:
This Writ Petition is filed for a Mandamus to declare the action of the respondents in registering the case under Section 7 (1) (A) [appears to have been wrongly mentioned as 7 (A) (1)] of the Essential Commodities Act, 1955 (for short ‘the Act’), and seizing 259 bags of PDS rice along with the lorry bearing registration No.AP 16 TV 6879, on 09-11-2014, as illegal and arbitrary.
The petitioner claims to be the owner of the aforementioned lorry, which was intercepted and seized by respondent No.4 along with the Deputy Tahsildar and Village Revenue Officer concerned on 09.11.2014, on the suspicion that 259 bags of rice, which is meant for Public Distribution System, is being transported by it illegally. Following the said seizure, Crime No.345 of 2014 was registered for the offences punishable under Sections 420 and 406 read with Section 34 of the Indian Penal Code, 1860 (IPC) and Section 7 (A) (1) of the Act, against the petitioner, the lorry driver and another person, who is stated to be the labourer for loading and unloading the stocks of rice in the lorry. Respondent No.4 has filed a remand report before the Additional Judicial Magistrate of First Class, Nuzividu, on 10.11.2014. The petitioner has filed this Writ Petition questioning the said seizure and registration of the criminal case.
The main plea of the petitioner is that as rice is not an essential commodity, the provisions of the Act could not have been invoked and that therefore, the very seizure itself is without jurisdiction.
On 09-12-2014, when the case was taken up for admission, it came to light that not only a criminal case was registered, but also, respondent No.2 has initiated proceedings under Section 6-A of the Act. This Court has, therefore, adjourned the case to enable the learned Government Pleader for Civil Supplies (AP) to address the Court on the jurisdiction of respondent No.2 to initiate proceedings under Section 6-A of the Act as rice was not an essential commodity.
Today, at the hearing, the learned Counsel for the petitioner has advanced his submission based on the plea taken by the petitioner in his affidavit that the seizure of rice along with the lorry is without jurisdiction as rice is not an essential commodity. In support of his submission, the learned Counsel has placed reliance on a judgment of this Court in Sri Sai Traders rep. by its Proprietor vs. Assistant Supply Officer, Circle- I, Vijayawada[1].
Per contra, the learned Government Pleader for Civil Supplies (AP) submitted that though rice is not an essential commodity, it is nevertheless a scheduled commodity and that therefore, the seizure of rice along with the lorry is within the jurisdiction of the respondents. He has further sought to justify the initiation of proceedings under Section 6-A of the Act on the ground that the seized rice is meant for Public Distribution System and that its transportation was in violation of the provisions of the Andhra Pradesh State Public Distribution System (Control) Order, 2008 (for short ‘the Control Order’).
I have carefully considered the respective submissions of the learned Counsel for the parties.
As regards the seizure of rice along with the lorry and registration of the Criminal Case, Clause 16 of the Control Order authorizes such seizure. It is apt to reproduce Clause 16 (i) hereunder:
“16. Power of entry, inspect, search and seize stocks of scheduled commodities, ask questions for production of documents etc.
(i) Any officer or person authorized by the Government or by the Collector or by the appointing authority or any officer of the Revenue or Civil Supplies department not below the rank of Revenue Inspector/Checking Inspector/Enquiry Inspector (Civil Supplies), Deputy Tahsildar (Civil Supplies)/Grain Purchasing Assistant/Deputy Tahsildar (Revenue) or any Gazetted Officer of Vigilance and Enforcement Department, Andhra Pradesh, Hyderabad, or any officer authorized in the behalf by the State Government not below the rank of a Sub-Inspector of Police or a team of not less than three members of the Mandal/Village (Gram Panchayat) level Food Advisory Committee may enter the premises of the fair price shop/nominated retailer/hawker or any private premises where the scheduled commodities pertaining to Public Distribution System or other Government Schemes are positioned or found in transit and conduct inspection and seize any stocks of scheduled commodities, supply documents or books, accounts or other related document for the purpose of such inspection/seizure for contravention of the provisions of this order: Officers of Legal Metrology Department are also empowered to inspect the Fair Price Shop/nominated retailer/hawker premises, in regard to weights and measures.
Provided that the members of Food Advisory Committee at Mandal and Village Gram Panchayat, not less than three members may conduct enquiry on the performance of the fair price shop/nominated retailer/hawker and furnish a detailed report to the disciplinary authority for initiating disciplinary action.”
From the clause referred to above, it is clear that the authorized officer is entitled to enter, inspect, search and seize the stocks available not only in the premises of the fair price shop/nominated retailer/hawker but also in any private premises where the scheduled commodities pertaining to distribution system or other government scheme are positioned or found in transit. Undoubtedly, rice is a scheduled commodity under the Control Order and if such commodity is found anywhere and there is reason to believe that contravention of any of the provisions of the Control Order has taken place, the authorized person can seize the same.
Section 7 of the Act prescribed various penalties for contravention of the provisions of the Control Orders made under Section 3 of the Act. But Section 7 makes this aspect very clear. It reads, ‘if any person contravenes any order made under Section 3 ”
In the instant case, the allegation on which the rice along with the lorry was seized is that the rice meant for Public Distribution System was being illicitly transported. Therefore, it is incorrect for the petitioner to plead that respondent Nos.3 and 4 had no jurisdiction to seize the rice along with the lorry. In my opinion, respondent Nos.3 and 4 are not only empowered to seize but they are also under the obligation to institute a criminal case for the alleged contravention.
As regards the initiation of proceedings under Section 6-A of the Act, Sub-Section (1) of Section 6-A reads as under:
“Where any [essential commodity is seized] in pursuance of an order made under Section 3 in relation thereto. [a report of such seizure shall, without unreasonable delay, be made to] the Collector of the district or the Presidency town in which such essential commodity is seized and whether or not a prosecution is instituted for the contravention of such order, the Collector, [may, if he thinks it expedient so to do, direct the essential commodity so seized to be produced for inspection before him, and if he is satisfied] that there has been a contravention of the order may order confiscation of—
(a) the essential commodity so seized;
(b) any package, covering or receptacle in which such essential commodity is found; and
(c) any animal, vehicle, vessel or other conveyance used in carrying such essential commodity:] The words ‘essential commodity’ used in sub-section (1) are significant. Section 2 (a) defined the ‘essential commodity’ as the commodities specified in the schedule.
This Court in Sri Sai Traders (cited supra) discussed this position in detail and held as under:
“12. According to the respondents, it is the public distribution system rice, which is found to be transported and/or in the possession of the petitioners; therefore, they are at liberty to invoke the criminal proceedings even against public distribution system rice when it is diverted elsewhere with the connivance of the fair price shop dealers. But that itself does not permit the respondents to invoke the provisions of the Essential Commodities Act. As per Clause 16 of the Control Order, 2001 rice is only a scheduled commodity, but not an essential commodity to invoke the provisions of the Act. Therefore, the impugned action of the respondents in invoking the provisions of Section 6-A of the Act and seizing the rice of the petitioners is without any authority of law and as such, insofar as invoking the provisions of Section 6-A of the Act is concerned, it is arbitrary and illegal. May be, seizure is justified since prima facie it is the contention of the respondents that the rice seized is meant for public distribution system and it cannot be permitted to do away with the welfare scheme meant for the card holders. As such, the authorities are directed to take appropriate action as per law.”
The learned Government Pleader submitted that rice falls within the expression “food stuffs” mentioned in Clause (3) of the Schedule under the Act and that the judgment in Sri Sai Traders (cited supra) requires reconsideration. I am unable to accept this submission because the judgment in Sri Sai Traders (cited supra) attained finality. Therefore, in the interests of judicial propriety, I find no option other than following the ratio in that judgment. Liberty is, however, left with the State to agitate this issue before the appropriate legal forum.
For the above-mentioned reasons, the relief claimed by the petitioner to declare the seizure of the rice and the lorry cannot, therefore, be granted. Respondent Nos.3 and 4 are directed to produce the seized rice and the lorry before the jurisdictional Magistrate within one week from the date of receipt of this order. On such production, the petitioner is entitled to move the jurisdictional magistrate seeking release of the seized lorry. The proceedings, initiated under Section 6-A of the Act, are quashed as without jurisdiction.
The Writ Petition is, accordingly, allowed to the extent indicated above.
As a sequel to disposal of the Writ Petition, WPMP.No.47414 of 2014, filed by the petitioner for interim relief, is disposed of as infructuous.
(C.V.Nagarjuna Reddy, J)
Dt: 17th December, 2014
LUR
[1] 2006 (4) ALT 758