Sri. A. Navamohan Rao

IN THE COURT OF THE SESSIONS JUDGE, AT NIZAMABAD

PRESENT: Sri A.Navamohan Rao, B.A., LL.M.,

Sessions Judge, Nizamabad.

Wednesday, the 5th day of September, 2012

Crl. Appeal No.9 of 2012

Between:

Asadi Vikram, S/o. Poshetty, aged 58 years, Occ: Business, R/o. Nyalkal village of Nizamabad, at present residing at Bombay of Maharashtra State.

.. Appellant/Complainant

AND

1.Asadi Suman, S/o. Gangaram, aged 24 years, Caste: S.C. (Mala), Occ: Agrl., R/o. Nyalkal village.

2.The State through P.S. Rural, Represented by Public Prosecutor, Nizamabad Respondents

This case coming on 30th day of August, 2012, before me for final hearing in the presence of Sri J.Sudershan, Advocate for the appellant and of Sri A.Ravinder, Advocate for the Respondent No.1, and Public Prosecutor for the Respondent No.2, and having heard and having stood over for consideration, this Court delivered the following:

JUDGMENT

1. This appeal is preferred by the defacto complainant aggrieved by the acquittal Judgment in CC.No.695/2009 dated 10-1-2012 on the file of Judicial Magistrate of First Class (Special Mobile), Nizamabad.

2. The brief facts involved in the crime are that the Sub-Inspector of Police, police station Rural Nizamabad, filed charge sheet for the offence punishable U/s.379 IPC against the accused alleging that he committed theft of submersible electric motor, iron pipes, starter box and wire fixed to the bore well on the agricultural fields of defacto complainant.

The defacto complainant filed a written complaint on 4.2.2008 stating that he is the owner of agricultural lands of 3 acres 22 guntas in Sy.No.304 in the outskirts of Mopal village. The said land was given on the lease. He has been residing with his family members at 2 Crl.A.No.9/2012

Mumbai from past 30 years for business purpose and he was occasionally visited his agricultural fields. As usual, he returned to his village on 8-1-2008 and came to know that the submersible electric motor, iron pipes, starter box and wife were missing and he also came to know that his elder brother's son i.e. the accused committed the theft of material. Thereupon, the police registered the crime against the accused U/s.379 IPC and took up investigation. During the investigation, the police examined and recorded the statements of witnesses, conducted scene of offence panchanama. On 26-2-2008, the accused was apprehended and interrogated, the accused confessed about the committing of offence and in pursuance of the confession recovered the theft material under cover of panchanama in presence of panchas. Completing the investigation, charge sheet is filed.

3. The learned Addl. Judicial Magistrate of First Class, Nizamabad, took cognizance U/s.379 IPC and converted the crime file into

CC.No.538/2008. Subsequently, the case file is transferred to Judl.

Magistrate of First Class, Special Mobile Court, Nizamabad and re-

numbered as CC.No.695/2009 and the charge is framed U/s.379 IPC.

The learned Judl. Magistrate of First Class, Special Mobile Court,

Nizamabad, tried the matter and acquitted the accused. The Trial

Judge examined PW1 to PW8 out of 11 listed witnesses, and Ex.P1 to

Ex.P7 are got marked. Except the defacto complainant all other material witnesses i.e. PW2, PW3, PW4, PW5, PW7 and PW8 are turned hostile.

4. Aggrieved by the acquittal Judgment, this appeal is preferred

U/s.372 and 391 Cr.P.C. by the defacto complainant on the grounds that the Judgment under appeal is contrary tot he law against the principles of natural justice. The trial Court is not properly appreciated the evidence of prosecution witnesses and there is clear evidence against the accused for conviction.

3 Crl.A.No.9/2012

5. The prosecution is failed to produce the important witnesses and trial Court is also failed to examine the material witnesses.

6. After hearing the arguments of appellant's counsel, Public

Prosecutor and on perusal of material in the Judgment under appeal and connected record received from the trial Court, the following point arose for consideration:

1. Whether the oral and documentary evidence of prosecution is sufficient to record the conviction of accused. If so, the Judgment under appeal is not sustainable?

2. Whether the appellant is entitled for any relief?

7. POINT NO.1:

The trial Court record reveals that PW6 is the defacto complainant. His evidence is that he is residing at Bombay and he is having agricultural lands and electric submersible pump sets in the agricultural fields. He leased out the land to one P.Sailu. When he came from Bombay, he was informed by his tenant P.Sailu that electric pipes, starter and submersible electric motor were thefted.

Thereupon, he filed a police complaint basing on the information given by his tenant and neighbour land owner. Ex.P5 is the complaint. In the cross examination, he revealed that his agricultural lands were given on lease to one Sailu. But, there is no lease agreement between him and Sailu. He filed a police complaint 15 to 20 days after committal of theft. Initially, he filed complaint in English in the police station, but the police asked him to file the complaint in Telugu.

Accordingly, he filed a complaint in Telugu. He came to know through the neighbour land owners that the accused committed the theft, but he did not disclose the name of the neighbour land owners who informed about the committing of theft by the accused. He also deposed that he took the possession of record material from the Court.

4 Crl.A.No.9/2012

Ex.P5 is the written complaint filed by PW6 in which, it is mentioned that he came to know that his electric submersible current motor pipes and starter box were missing from his agricultural field and on enquiry, he came to know that the said material was committed theft by his elder brother's son i.e. the accused. In Ex.P5 also the names of the persons were not disclosed, who informed about the committing of theft by the accused. Therefore, the total evidence of PW6 (defacto complainant) and the material in the Ex.P5 written complaint is only hearsay evidence and the complaint is filed based on the information given by third parties.

According to the charge sheet PW2, PW3 and LW6-Pottolla Balu are the eye witnesses, but PW2 and PW3 are turned hostile, they did not support the prosecution case. Ex.P1 is the contradiction marked in the earlier statement of PW2 and Ex.P2 is the contradiction marked in the earlier statement of PW3. PW2 and PW3 evidence is similar and they deposed that they do not know the defacto complainant-Asadi

Vikram and they do not know about the facts of the case. They never examined by the police. The prosecution case is that PW2, PW3 and

LW6-Pottolla Balu took the pipes, submersible motor starter box in the bullock cart along with the accused from the agricultural field of defacto complainant to the house of accused. But, bot the eye witnesses PW2 and PW3 are turned hostile and LW6-Pottolla Balu is not examined by the prosecution.

PW1 is the circumstantial witness. His evidence is that the defacto complainant-Asadi Vikram possessed agricultural land to an extent of 3 acres 24 guntas in Sy.No.304 and defacto complainant is the pattedar of the said land. Except the ownership of the land of defacto complainant, no incriminating evidence is found against the accused in the evidence of PW1. In the previous statement of PW1 also there is no material against the accused.

5 Crl.A.No.9/2012

The remaining other important witnesses are PW4, PW5, PW7 and PW8. PW7 and PW8 are the panch witnesses to the scene of offence panchanama, they also turned hostile and they did not support to the scene of offence panchanama. Their evidence is that their signatures were obtained on white papers. Therefore, there is no acceptable evidence to establish that the electric motor pipes and starter box were committed theft in the field of defacto complainant.

The other important witnesses are PW4 and PW5. According to the prosecution, the theft material object were seized in presence of

PW4 and PW5 under cover of panchanama and they are the panch witnesses to the confession of accused. But, PW4 and PW5 were totally turned hostile, they did not supported the prosecution case.

Their evidence is similar that their signatures were obtained by the police when they visited the Rural Police Station. Neither any confession panchanama was conducted nor any seizure panchanama was conducted in their presence. Both the witnesses are declared hostile and permitted to cross examine by the A.P.P. During the cross examination, they denied the suggestions put by the A.P.P.

The prosecution is not examined LW6-Pottolla Balu who is the alleged eye witness and also not examined the investigating officer

LW11-G.Srinivasu.

The learned counsel for the appellant argued that none examination of investigating officer and another eye witness LW6-

Pottolla Balu is caused prejudice to the rights of appellant/defacto complainant.

8. In my opinion, none examination of investigating officer is not fatal to the case when all the examined witnesses are turned hostile and there is no incriminating material against the accused in the 6 Crl.A.No.9/2012 evidence of material witnesses including the defacto complainant. The defacto complainant's evidence is hearsay evidence. When the confession and seizure panchanama contents are not proved, there is no use to examine the investigating officer and one of the eye witness.

The majority of eye witnesses i.e. PW2 and PW3 are turned hostile.

According to the evidence of PW6 (defacto complainant), he received the alleged recovered properties from the Court, but the recovered properties are not brought to the Court during the evidence and marked as material objects. Therefore, the trial Court is rightly acquitted the accused, as there is no incriminating material against the accused. The grounds pleaded in the memorandum of appeal are not tenable. The involved facts and the oral and documentary evidence reveal that this appeal is filed only to harass the accused. Hence, I do not see any reasons to interfere in the Judgment under appeal.

9. IN THE RESULT, this Appeal is dismissed with costs of Rs.200/-.

Dictated to Personal Assistant, transcribed by her, corrected and

pronounced by me in Open Court on this the 5th day of September,

2012

Sessions Judge,

Nizamabad

7 Crl.A.No.9/2012

IN THE COURT OF THE SESSIONS JUDGE, AT NIZAMABAD

PRESENT: Sri A.Navamohan Rao, B.A., LL.M.,

Sessions Judge, Nizamabad.

Wednesday, the 5th day of September, 2012

CRL.Appeal No.9 of 2012

1 From what Court the Appeal : Judicial Magistrate of First Class, is preferred (Special Mobile), Nizamabad 2 Number of the case in that : CC No.695 of 2009 Court 3 Number of Appeal : CRL.Appeal No.9 of 2012 4 i) Name of the appellant : Asadi Vikram, S/o. Poshetty, aged 58 years, Occ: Business, R/o. Nyalkal village of Nizamabad, at present residing at Bombay of Maharashtra State.

1. Asadi Suman, S/o. Gangaram, aged 24 years, Caste: S.C. (Mala), Occ: Agrl., ii) Name of the respondents R/o. Nyalkal village.

2. The State through P.S. Rural, Represented by Public Prosecutor, Nizamabad 5 Sentence and law under : The learned Judicial Magistrate of which it was passed First Class (Special Mobile), Nizamabad, found that the accused not guilty for the offence U/sec.379 IPC, and acquitted him U/sec.248(1) Cr.P.C. The bail bonds of the accused shall stand cancelled. The unmarked case property i.e. submersible current motor, 9 iron pipes and service wire about 30 meters, which was already given for interim custody to PW6 the same shall become absolute after appeal time is over.

6 Whether confirmed, : Confirmed modified or reversed

IN THE COURT OF THE SESSIONS JUDGE, AT NIZAMABAD

PRESENT: Sri A.Navamohan Rao, B.A., LL.M.,

Sessions Judge, Nizamabad.

Wednesday, the 5th day of September, 2012

Crl. Appeal No.9 of 2012

Between:

Asadi Vikram, S/o. Poshetty, aged 58 years, Occ: Business, R/o. Nyalkal village of Nizamabad, at present residing at Bombay of Maharashtra State.

.. Appellant/Complainant

AND

1.Asadi Suman, S/o. Gangaram, aged 24 years, Caste: S.C. (Mala), Occ: Agrl., R/o. Nyalkal village.

2.The State through P.S. Rural, Represented by Public Prosecutor, Nizamabad Respondents

This case coming on 30th day of August, 2012, before me for final hearing in the presence of Sri J.Sudershan, Advocate for the appellant and of Sri A.Ravinder, Advocate for the Respondent No.1, and Public Prosecutor for the Respondent No.2, and having heard and having stood over for consideration, this Court delivered the following:

JUDGMENT

1. This appeal is preferred by the defacto complainant aggrieved by the acquittal Judgment in CC.No.695/2009 dated 10-1-2012 on the file of Judicial Magistrate of First Class (Special Mobile), Nizamabad.

2. The brief facts involved in the crime are that the Sub-Inspector of Police, police station Rural Nizamabad, filed charge sheet for the offence punishable U/s.379 IPC against the accused alleging that he committed theft of submersible electric motor, iron pipes, starter box and wire fixed to the bore well on the agricultural fields of defacto complainant.

The defacto complainant filed a written complaint on 4.2.2008 stating that he is the owner of agricultural lands of 3 acres 22 guntas in Sy.No.304 in the outskirts of Mopal village. The said land was given on the lease. He has been residing with his family members at 2 Crl.A.No.9/2012

Mumbai from past 30 years for business purpose and he was occasionally visited his agricultural fields. As usual, he returned to his village on 8-1-2008 and came to know that the submersible electric motor, iron pipes, starter box and wife were missing and he also came to know that his elder brother's son i.e. the accused committed the theft of material. Thereupon, the police registered the crime against the accused U/s.379 IPC and took up investigation. During the investigation, the police examined and recorded the statements of witnesses, conducted scene of offence panchanama. On 26-2-2008, the accused was apprehended and interrogated, the accused confessed about the committing of offence and in pursuance of the confession recovered the theft material under cover of panchanama in presence of panchas. Completing the investigation, charge sheet is filed.

3. The learned Addl. Judicial Magistrate of First Class, Nizamabad, took cognizance U/s.379 IPC and converted the crime file into

CC.No.538/2008. Subsequently, the case file is transferred to Judl.

Magistrate of First Class, Special Mobile Court, Nizamabad and re-

numbered as CC.No.695/2009 and the charge is framed U/s.379 IPC.

The learned Judl. Magistrate of First Class, Special Mobile Court,

Nizamabad, tried the matter and acquitted the accused. The Trial

Judge examined PW1 to PW8 out of 11 listed witnesses, and Ex.P1 to

Ex.P7 are got marked. Except the defacto complainant all other material witnesses i.e. PW2, PW3, PW4, PW5, PW7 and PW8 are turned hostile.

4. Aggrieved by the acquittal Judgment, this appeal is preferred

U/s.372 and 391 Cr.P.C. by the defacto complainant on the grounds that the Judgment under appeal is contrary tot he law against the principles of natural justice. The trial Court is not properly appreciated the evidence of prosecution witnesses and there is clear evidence against the accused for conviction.

3 Crl.A.No.9/2012

5. The prosecution is failed to produce the important witnesses and trial Court is also failed to examine the material witnesses.

6. After hearing the arguments of appellant's counsel, Public

Prosecutor and on perusal of material in the Judgment under appeal and connected record received from the trial Court, the following point arose for consideration:

1. Whether the oral and documentary evidence of prosecution is sufficient to record the conviction of accused. If so, the Judgment under appeal is not sustainable?

2. Whether the appellant is entitled for any relief?

7. POINT NO.1:

The trial Court record reveals that PW6 is the defacto complainant. His evidence is that he is residing at Bombay and he is having agricultural lands and electric submersible pump sets in the agricultural fields. He leased out the land to one P.Sailu. When he came from Bombay, he was informed by his tenant P.Sailu that electric pipes, starter and submersible electric motor were thefted.

Thereupon, he filed a police complaint basing on the information given by his tenant and neighbour land owner. Ex.P5 is the complaint. In the cross examination, he revealed that his agricultural lands were given on lease to one Sailu. But, there is no lease agreement between him and Sailu. He filed a police complaint 15 to 20 days after committal of theft. Initially, he filed complaint in English in the police station, but the police asked him to file the complaint in Telugu.

Accordingly, he filed a complaint in Telugu. He came to know through the neighbour land owners that the accused committed the theft, but he did not disclose the name of the neighbour land owners who informed about the committing of theft by the accused. He also deposed that he took the possession of record material from the Court.

4 Crl.A.No.9/2012

Ex.P5 is the written complaint filed by PW6 in which, it is mentioned that he came to know that his electric submersible current motor pipes and starter box were missing from his agricultural field and on enquiry, he came to know that the said material was committed theft by his elder brother's son i.e. the accused. In Ex.P5 also the names of the persons were not disclosed, who informed about the committing of theft by the accused. Therefore, the total evidence of PW6 (defacto complainant) and the material in the Ex.P5 written complaint is only hearsay evidence and the complaint is filed based on the information given by third parties.

According to the charge sheet PW2, PW3 and LW6-Pottolla Balu are the eye witnesses, but PW2 and PW3 are turned hostile, they did not support the prosecution case. Ex.P1 is the contradiction marked in the earlier statement of PW2 and Ex.P2 is the contradiction marked in the earlier statement of PW3. PW2 and PW3 evidence is similar and they deposed that they do not know the defacto complainant-Asadi

Vikram and they do not know about the facts of the case. They never examined by the police. The prosecution case is that PW2, PW3 and

LW6-Pottolla Balu took the pipes, submersible motor starter box in the bullock cart along with the accused from the agricultural field of defacto complainant to the house of accused. But, bot the eye witnesses PW2 and PW3 are turned hostile and LW6-Pottolla Balu is not examined by the prosecution.

PW1 is the circumstantial witness. His evidence is that the defacto complainant-Asadi Vikram possessed agricultural land to an extent of 3 acres 24 guntas in Sy.No.304 and defacto complainant is the pattedar of the said land. Except the ownership of the land of defacto complainant, no incriminating evidence is found against the accused in the evidence of PW1. In the previous statement of PW1 also there is no material against the accused.

5 Crl.A.No.9/2012

The remaining other important witnesses are PW4, PW5, PW7 and PW8. PW7 and PW8 are the panch witnesses to the scene of offence panchanama, they also turned hostile and they did not support to the scene of offence panchanama. Their evidence is that their signatures were obtained on white papers. Therefore, there is no acceptable evidence to establish that the electric motor pipes and starter box were committed theft in the field of defacto complainant.

The other important witnesses are PW4 and PW5. According to the prosecution, the theft material object were seized in presence of

PW4 and PW5 under cover of panchanama and they are the panch witnesses to the confession of accused. But, PW4 and PW5 were totally turned hostile, they did not supported the prosecution case.

Their evidence is similar that their signatures were obtained by the police when they visited the Rural Police Station. Neither any confession panchanama was conducted nor any seizure panchanama was conducted in their presence. Both the witnesses are declared hostile and permitted to cross examine by the A.P.P. During the cross examination, they denied the suggestions put by the A.P.P.

The prosecution is not examined LW6-Pottolla Balu who is the alleged eye witness and also not examined the investigating officer

LW11-G.Srinivasu.

The learned counsel for the appellant argued that none examination of investigating officer and another eye witness LW6-

Pottolla Balu is caused prejudice to the rights of appellant/defacto complainant.

8. In my opinion, none examination of investigating officer is not fatal to the case when all the examined witnesses are turned hostile and there is no incriminating material against the accused in the 6 Crl.A.No.9/2012 evidence of material witnesses including the defacto complainant. The defacto complainant's evidence is hearsay evidence. When the confession and seizure panchanama contents are not proved, there is no use to examine the investigating officer and one of the eye witness.

The majority of eye witnesses i.e. PW2 and PW3 are turned hostile.

According to the evidence of PW6 (defacto complainant), he received the alleged recovered properties from the Court, but the recovered properties are not brought to the Court during the evidence and marked as material objects. Therefore, the trial Court is rightly acquitted the accused, as there is no incriminating material against the accused. The grounds pleaded in the memorandum of appeal are not tenable. The involved facts and the oral and documentary evidence reveal that this appeal is filed only to harass the accused. Hence, I do not see any reasons to interfere in the Judgment under appeal.

9. IN THE RESULT, this Appeal is dismissed with costs of Rs.200/-.

Dictated to Personal Assistant, transcribed by her, corrected and

pronounced by me in Open Court on this the 5th day of September,

2012

Sessions Judge,

Nizamabad

7 Crl.A.No.9/2012

IN THE COURT OF THE SESSIONS JUDGE, AT NIZAMABAD

PRESENT: Sri A.Navamohan Rao, B.A., LL.M.,

Sessions Judge, Nizamabad.

Wednesday, the 5th day of September, 2012

CRL.Appeal No.9 of 2012

1 From what Court the Appeal : Judicial Magistrate of First Class, is preferred (Special Mobile), Nizamabad 2 Number of the case in that : CC No.695 of 2009 Court 3 Number of Appeal : CRL.Appeal No.9 of 2012 4 i) Name of the appellant : Asadi Vikram, S/o. Poshetty, aged 58 years, Occ: Business, R/o. Nyalkal village of Nizamabad, at present residing at Bombay of Maharashtra State.

1. Asadi Suman, S/o. Gangaram, aged 24 years, Caste: S.C. (Mala), Occ: Agrl., ii) Name of the respondents R/o. Nyalkal village.

2. The State through P.S. Rural, Represented by Public Prosecutor, Nizamabad 5 Sentence and law under : The learned Judicial Magistrate of which it was passed First Class (Special Mobile), Nizamabad, found that the accused not guilty for the offence U/sec.379 IPC, and acquitted him U/sec.248(1) Cr.P.C. The bail bonds of the accused shall stand cancelled. The unmarked case property i.e. submersible current motor, 9 iron pipes and service wire about 30 meters, which was already given for interim custody to PW6 the same shall become absolute after appeal time is over.

6 Whether confirmed, : Confirmed modified or reversed

IN THE COURT OF SESSIONS JUDGE, AT NIZAMABAD

PRESENT: Sri A.Navamohan Rao, B.A., LL.M.,

Sessions Judge, Nizamabad.

Thursday, the 30th day of August, 2012

CRL.Appeal No.73 of 2011

Between:

Smt.M.Sridevi, W/o. Late M.Shiva Kumar, aged 41 years, Occ: Fair Price shop No.108 Dealer, R/o. H.No.3-25, R/o. Mubaraknagar, Nizamabad District. Appellant A n d

1)The Dy.Tahsildar (Enforcement) Civil Supplies, Nizamabad.

2)The Joint Collector (CS), Nizamabad.

Respondents

This case coming before me for final hearing in the presence of Sri P.Venkata Ramanaiah, Advocate for the appellant and of Public Prosecutor for the Respondents having heard and having stood over for consideration, this Court delivered the following:

JUDGMENT

1. This Appeal is preferred U/s.6-C of Essential Commodities Act aggrieved by the order of the Joint Collector in case No.CS6/640/2011 dtd: 13-8-2011 by questioning the confiscation of 100% value of seized stock.

2. The appellant/respondent is the Fair Price shop dealer, vide FPS

No.108, Mubaraknagar village of Nizamabad Mandal, the complainant is the Deputy Tahsildar, Enforcement, Nizamabad.

3. The brief facts of the case are that the Mubaraknagar villagers caught hold Smt.A.Gangamma, W/o. Gangaram, R/o. Mubaraknagar village along with 50 Kgs of PDS rice, while she was transporting and same was informed to the Tahsildar, Nizamabad, in turn, the

Tahsildar, Nizamabad gave instructions to the Deputy Tahsildar,

Enforcement, Nizamabad. Thereupon, the complainant along with

Crl.A.No.73/11 2

Food Inspector, Nizamabad Division visited the village and inspected the stock in the Fair Price shop No.108 of Mubaraknagar, conducted enquiry and found variation in the ground stock with the balance in the registers. The enquiry revealed that Smt.A.Gangamma purchased 50

Kgs of PDS rice from the shop for Rs.750/- illegally and she is not the consumer card holder. The statement of the said Gangamma was recorded and also enquired with the appellant/respondent.

4. On verification of registers and ground stock, there is variation of (-) 4.56 quintals of PDS rice. The complainant asked the reply from the appellant/respondent about the variation, but the appellant/ respondent is failed to submit proper reply. Therefore, it is found that the appellant/respondent diverted the PDS stocks instead of distributing to the cardholders. Hence, the respondent is contravened the provisions under Clause 17 (a) (b) (c), Clause 22 (IV) (V) (VI) condition 4 (i) (ii) condition 12, 14 of A.Ps. PDC Control Order, 2008.

Therefore the complainant seized the ground balance of PDS rice 123.50 quintals and also seized 293 Liters of kerosene oil along with the registers. The seized stock was given to the custody of Village

Revenue Officer, Mubaraknagar, Nizamabad and filed a complaint

before the Civil Supply Collector, Nizamabad. The learned Civil Supply

Collector, Nizamabad, heard the arguments of both sides, and passed the impugned order by confiscating 100% value of the seized stock.

5. Aggrieved by the impugned order, this memorandum of appeal is preferred on the grounds that the order under appeal is not sustainable and the Joint Collector is failed to consider the explanation of the appellant/respondent, dtd: 30-7-2011.

Crl.A.No.73/11 3

6. In fact 70 Kgs of rice supplied to one Konduru Gangamani, aged 60 years, against the card No. YAP 1812108-A002 but on the date of supply of rice, the said card holder Gangamani forgotten to bring ration card and she assured that she will bring the ration card later.

As such, the supplied rice entries were not made in the register and not signed on the ration card.

It is further contention is that the appellant/respondent and her family members are also cardholders vide card No.WAP 1812108-

A0168 of the same shop No.108, Mubaraknagar and her family members took the allotted rice of 40 Kgs. But the entries are not made in the sales register. Therefore, the distributed rice is 1.10 quintals and if the same is considered, the stock is within the permissible variation i.e. 1.5% shortage. Thus, the appellant/ respondent prayed to set aside the order of confiscation.

7. After considering material in the case file received from the Joint

Collector’s Office and hearing the arguments of the appellant/respondent’s counsel and Public Prosecutor, the following points arose for consideration:

i) Whether the order under appeal dated 13-8-2011 is unjustified and un-sustainable under law?

ii)Whether the appellant/respondent is entitled for any relief?

8. Point No.1:

The record reveals that the complainant recorded the statement of A.Gangamma from whom 50 Kgs PDS rice is seized. According to the statement of A.Gangamma, she is not the cardholder to receive the PDS rice and she purchased 50 Kgs rice from the respondent for

Rs.750/-. The record also reveals that the appellant/respondent submitted her written statement dated 19.7.2011 that she supplied 50

Kgs rice for Rs.750/- on her household card and her family members

Crl.A.No.73/11 4

are entitled for 50 Kgs rice per month. It is also further submitted that Sarpanch of the village is receiving 50 Kgs rice, 30 Liters kerosene in every month without any payment. She also admitted in her written statement that she is not made entry in the registers for supplied rice. The appellant/respondent also signed on the seizure

Panchanama. The record also further reveal that after receiving notice from the Joint Collector’s Office, the appellant/respondent filed her written request, dtd: 30-7-2011 that from last four years, she has been running the Fair Price Shop without any complaints, the village

Sarpanch Kyatam Hanmandlu is given the complaint as she refused to supply rice, kerosene and sugar on free of costs and requested to excuse as first mistake. Therefore, in the statement of appellant/respondent before the Tahsildar and before the Joint

Collector, she admitted that without making entry in the register, she supplied 50 Kgs rice to a non-card holder by receiving the amount.

The grounds pleaded in the appeal are contrary to her earlier written statement filed before the Tahsildar and Joint Collector. On perusal of material seized register pertains to rice the card bearing

No.WAP1812108 A0168 stands on the name of Mara Shiv Kumar, who is the husband of appellant/respondent herein. The card status is 20

Kgs, family members are 5 in number. There are no entries about the supply on said card. The appellant/respondent took a plea that in the appeal that the said card allotted quantity is 40 Kgs, which is incorrect and status of card is only 20 Kgs. Therefore, it is clear from the record that the appellant/respondent is failed to maintain the Fair Price shop records properly and there is variation of stock in comparison of stock registers, variation is more than permissible limits. Therefore, the learned Joint Collector is rightly held that the appellant/respondent is indulged in diversion of PDS rice commodities in contravention of

Crl.A.No.73/11 5

Clause 17 (b) (c), 22 (iv) (v) (vi) of the APS PDS (Control) Order 2008 and condition 4 (i) (ii) 12 and 14 of Authorization.

9. Coming to the confiscation of material:

The Joint Collector confiscated the total seized stock, which is available in the Fair Price shop on the date of inspection i.e. 123.50

Kgs PDS rice and 293 liters of kerosene oil. In fact, there is no variation about the kerosene oil. Therefore, seizure of kerosene oil and confiscation of kerosene oil is without any base and unjustified, as there is no variation of stock in the kerosene oil. Therefore, the confiscation order pertains to seizure of kerosene oil is improper and not sustainable. Therefore, the order of Joint Collector pertains to confiscation of seizure of kerosene oil quantity 293 liters is unjustified.

The confiscation order pertains to seized PDS rice is justified.

10. Point No.2:

In view of the finding given in Point No.1, the order of confiscation of PDS rice 123.50 Kgs is justified, which is confirmed.

The order of Joint Collector pertains to confiscation of seizure and value of kerosene oil 293 liters is un-justified, which is set aside.

11. In the result, this appeal is partly allowed, by setting aside the confiscation order pertains to confiscation of value of the kerosene oil of 293 liters. The order under appeal pertains to seizure of confiscation of the value of PDS rice 123.50 Kgs is confirmed.

No costs.

Dictated to Personal Assistant, transcribed by her, corrected and

pronounced by me in Open Court on this the 30th day of August, 2012.

Sessions Judge,

Nizamabad.

Crl.A.No.73/11 6

IN THE COURT OF SESSIONS JUDGE, AT NIZAMABAD

PRESENT: Sri A.Navamohan Rao, B.A., LL.M.,

Sessions Judge, Nizamabad.

Thursday, the 30th day of August, 2012

CRL.Appeal No.73 of 2011

1 From what Court the : The Joint Collector, Nizamabad Appeal is preferred 2 Number of the case in that : CS6/640/2011 Court 3 Number of Appeal : Crl. Appeal No.73 of 2011 4 i) Name of the appellant : Smt.M.Sridevi, W/o. Late M.Shiva Kumar, aged 41 years, Occ: Fair Price shop No.108 Dealer, R/o. H.No.3-25, R/o. Mubaraknagar, Nizamabad District ii) Name of the respondents 1 The Dy. Tahsildar (Enforcement), Civil Supplies, Nizamabad. 2 The Joint Collector (CS), Nizamabad.

5 Sentence & law under : U/s 6-A of the E.C. Act the learned which it was passed Joint Collector, Nizamabad ordered for confiscation of 100% of the excess stock of rice, kerosene, and sugar in favour of the government.

6 Whether confirmed, : Modified modified or reversed.

IN THE COURT OF SESSIONS JUDGE, AT NIZAMABAD

PRESENT: Sri A.Navamohan Rao, B.A., LL.M.,

Sessions Judge, Nizamabad.

Thursday, the 30th day of August, 2012

CRL.Appeal No.73 of 2011

Between:

Smt.M.Sridevi, W/o. Late M.Shiva Kumar, aged 41 years, Occ: Fair Price shop No.108 Dealer, R/o. H.No.3-25, R/o. Mubaraknagar, Nizamabad District. Appellant A n d

1)The Dy.Tahsildar (Enforcement) Civil Supplies, Nizamabad.

2)The Joint Collector (CS), Nizamabad.

Respondents

This case coming before me for final hearing in the presence of Sri P.Venkata Ramanaiah, Advocate for the appellant and of Public Prosecutor for the Respondents having heard and having stood over for consideration, this Court delivered the following:

JUDGMENT

1. This Appeal is preferred U/s.6-C of Essential Commodities Act aggrieved by the order of the Joint Collector in case No.CS6/640/2011 dtd: 13-8-2011 by questioning the confiscation of 100% value of seized stock.

2. The appellant/respondent is the Fair Price shop dealer, vide FPS

No.108, Mubaraknagar village of Nizamabad Mandal, the complainant is the Deputy Tahsildar, Enforcement, Nizamabad.

3. The brief facts of the case are that the Mubaraknagar villagers caught hold Smt.A.Gangamma, W/o. Gangaram, R/o. Mubaraknagar village along with 50 Kgs of PDS rice, while she was transporting and same was informed to the Tahsildar, Nizamabad, in turn, the

Tahsildar, Nizamabad gave instructions to the Deputy Tahsildar,

Enforcement, Nizamabad. Thereupon, the complainant along with

Crl.A.No.73/11 2

Food Inspector, Nizamabad Division visited the village and inspected the stock in the Fair Price shop No.108 of Mubaraknagar, conducted enquiry and found variation in the ground stock with the balance in the registers. The enquiry revealed that Smt.A.Gangamma purchased 50

Kgs of PDS rice from the shop for Rs.750/- illegally and she is not the consumer card holder. The statement of the said Gangamma was recorded and also enquired with the appellant/respondent.

4. On verification of registers and ground stock, there is variation of (-) 4.56 quintals of PDS rice. The complainant asked the reply from the appellant/respondent about the variation, but the appellant/ respondent is failed to submit proper reply. Therefore, it is found that the appellant/respondent diverted the PDS stocks instead of distributing to the cardholders. Hence, the respondent is contravened the provisions under Clause 17 (a) (b) (c), Clause 22 (IV) (V) (VI) condition 4 (i) (ii) condition 12, 14 of A.Ps. PDC Control Order, 2008.

Therefore the complainant seized the ground balance of PDS rice 123.50 quintals and also seized 293 Liters of kerosene oil along with the registers. The seized stock was given to the custody of Village

Revenue Officer, Mubaraknagar, Nizamabad and filed a complaint

before the Civil Supply Collector, Nizamabad. The learned Civil Supply

Collector, Nizamabad, heard the arguments of both sides, and passed the impugned order by confiscating 100% value of the seized stock.

5. Aggrieved by the impugned order, this memorandum of appeal is preferred on the grounds that the order under appeal is not sustainable and the Joint Collector is failed to consider the explanation of the appellant/respondent, dtd: 30-7-2011.

Crl.A.No.73/11 3

6. In fact 70 Kgs of rice supplied to one Konduru Gangamani, aged 60 years, against the card No. YAP 1812108-A002 but on the date of supply of rice, the said card holder Gangamani forgotten to bring ration card and she assured that she will bring the ration card later.

As such, the supplied rice entries were not made in the register and not signed on the ration card.

It is further contention is that the appellant/respondent and her family members are also cardholders vide card No.WAP 1812108-

A0168 of the same shop No.108, Mubaraknagar and her family members took the allotted rice of 40 Kgs. But the entries are not made in the sales register. Therefore, the distributed rice is 1.10 quintals and if the same is considered, the stock is within the permissible variation i.e. 1.5% shortage. Thus, the appellant/ respondent prayed to set aside the order of confiscation.

7. After considering material in the case file received from the Joint

Collector’s Office and hearing the arguments of the appellant/respondent’s counsel and Public Prosecutor, the following points arose for consideration:

i) Whether the order under appeal dated 13-8-2011 is unjustified and un-sustainable under law?

ii)Whether the appellant/respondent is entitled for any relief?

8. Point No.1:

The record reveals that the complainant recorded the statement of A.Gangamma from whom 50 Kgs PDS rice is seized. According to the statement of A.Gangamma, she is not the cardholder to receive the PDS rice and she purchased 50 Kgs rice from the respondent for

Rs.750/-. The record also reveals that the appellant/respondent submitted her written statement dated 19.7.2011 that she supplied 50

Kgs rice for Rs.750/- on her household card and her family members

Crl.A.No.73/11 4

are entitled for 50 Kgs rice per month. It is also further submitted that Sarpanch of the village is receiving 50 Kgs rice, 30 Liters kerosene in every month without any payment. She also admitted in her written statement that she is not made entry in the registers for supplied rice. The appellant/respondent also signed on the seizure

Panchanama. The record also further reveal that after receiving notice from the Joint Collector’s Office, the appellant/respondent filed her written request, dtd: 30-7-2011 that from last four years, she has been running the Fair Price Shop without any complaints, the village

Sarpanch Kyatam Hanmandlu is given the complaint as she refused to supply rice, kerosene and sugar on free of costs and requested to excuse as first mistake. Therefore, in the statement of appellant/respondent before the Tahsildar and before the Joint

Collector, she admitted that without making entry in the register, she supplied 50 Kgs rice to a non-card holder by receiving the amount.

The grounds pleaded in the appeal are contrary to her earlier written statement filed before the Tahsildar and Joint Collector. On perusal of material seized register pertains to rice the card bearing

No.WAP1812108 A0168 stands on the name of Mara Shiv Kumar, who is the husband of appellant/respondent herein. The card status is 20

Kgs, family members are 5 in number. There are no entries about the supply on said card. The appellant/respondent took a plea that in the appeal that the said card allotted quantity is 40 Kgs, which is incorrect and status of card is only 20 Kgs. Therefore, it is clear from the record that the appellant/respondent is failed to maintain the Fair Price shop records properly and there is variation of stock in comparison of stock registers, variation is more than permissible limits. Therefore, the learned Joint Collector is rightly held that the appellant/respondent is indulged in diversion of PDS rice commodities in contravention of

Crl.A.No.73/11 5

Clause 17 (b) (c), 22 (iv) (v) (vi) of the APS PDS (Control) Order 2008 and condition 4 (i) (ii) 12 and 14 of Authorization.

9. Coming to the confiscation of material:

The Joint Collector confiscated the total seized stock, which is available in the Fair Price shop on the date of inspection i.e. 123.50

Kgs PDS rice and 293 liters of kerosene oil. In fact, there is no variation about the kerosene oil. Therefore, seizure of kerosene oil and confiscation of kerosene oil is without any base and unjustified, as there is no variation of stock in the kerosene oil. Therefore, the confiscation order pertains to seizure of kerosene oil is improper and not sustainable. Therefore, the order of Joint Collector pertains to confiscation of seizure of kerosene oil quantity 293 liters is unjustified.

The confiscation order pertains to seized PDS rice is justified.

10. Point No.2:

In view of the finding given in Point No.1, the order of confiscation of PDS rice 123.50 Kgs is justified, which is confirmed.

The order of Joint Collector pertains to confiscation of seizure and value of kerosene oil 293 liters is un-justified, which is set aside.

11. In the result, this appeal is partly allowed, by setting aside the confiscation order pertains to confiscation of value of the kerosene oil of 293 liters. The order under appeal pertains to seizure of confiscation of the value of PDS rice 123.50 Kgs is confirmed.

No costs.

Dictated to Personal Assistant, transcribed by her, corrected and

pronounced by me in Open Court on this the 30th day of August, 2012.

Sessions Judge,

Nizamabad.

Crl.A.No.73/11 6

IN THE COURT OF SESSIONS JUDGE, AT NIZAMABAD

PRESENT: Sri A.Navamohan Rao, B.A., LL.M.,

Sessions Judge, Nizamabad.

Thursday, the 30th day of August, 2012

CRL.Appeal No.73 of 2011

1 From what Court the : The Joint Collector, Nizamabad Appeal is preferred 2 Number of the case in that : CS6/640/2011 Court 3 Number of Appeal : Crl. Appeal No.73 of 2011 4 i) Name of the appellant : Smt.M.Sridevi, W/o. Late M.Shiva Kumar, aged 41 years, Occ: Fair Price shop No.108 Dealer, R/o. H.No.3-25, R/o. Mubaraknagar, Nizamabad District ii) Name of the respondents 1 The Dy. Tahsildar (Enforcement), Civil Supplies, Nizamabad. 2 The Joint Collector (CS), Nizamabad.

5 Sentence & law under : U/s 6-A of the E.C. Act the learned which it was passed Joint Collector, Nizamabad ordered for confiscation of 100% of the excess stock of rice, kerosene, and sugar in favour of the government.

6 Whether confirmed, : Modified modified or reversed.

IN THE COURT OF SESSIONS JUDGE, AT NIZAMABAD

PRESENT: Sri A.Navamohan Rao, B.A., LL.M.,

Sessions Judge, Nizamabad.

Thursday, the 6th day of September, 2012

CRL.Appeal No.85 of 2011

Between:

1.Laxmi Narayana, Manager, Indur Vanitha Super Bazar, Dealer F.P. Shop No.53, Nizamabad Urban, Nizamabad.

2.Kishan @ Krishna, S/o. Narayan Rao, age 36 years, Occ: Private Service, R/o. Nizamabad.

k... Appellants

A n d

1)The Dy. Tahsildar (Enforcement) Civil Supplies, Nizamabad.

2)The Joint Collector (CS), Nizamabad.

.. Respondents

This case coming before me for final hearing in the presence of Sri Akula Suresh, Advocate for the appellants and of Public Prosecutor

for the Respondents, and having heard and having stood over for

consideration, this Court delivered the following:

JUDGMENT

1. This appeal filed U/s.6-C of Essential Commodities Act aggrieved by the 100% confiscation order in case No.CS6/484/2011, dated 27-8- 2011 on the file of the Joint Collector, Nizamabad.

2. The brief case is that the appellant is the Fair Price Shop dealer shop No.53, situated at Shivajinagar, Nizamabad Urban on the name of Indur Vanitha Super Bazar and its Manager is Laxmi Narayana. The

Dy.Tahsildar, Enforcement received credible information that the shop has been running by A.Kishan on cell phone No.9849074701 at about 11.30 a.m., on 13-5-2011 and the said Kishan informed that he is working as daily wages as Helper appointed by the dealer. But the said A.Kishan obtained identity card from the Revenue Divisional

Office, Nizamabad on the name of Binami dealer. The Manager, Indur

Vanitha Super Bazar, Nizamabad, has informed that he has no knowledge about obtaining identity card by A.Kishan directly from the

Revenue Divisional Officer, Nizamabad. Immediately, inspected the shop, verified the stock registers, distribution registers and ground stock and found 0.21 quintals excess PDS rice. When the variation is 2 Crl.A.No.85/2011 questioned with Kishan, he has no proper and satisfactory reply. The cardholders came to the shop during enquiry and informed that

A.Kishan is not distributing kerosene oil from last six months and also informed that commodities were not distributing properly and shop was not opening prescribed timings. On verification of previous sales registers, it is found that forged signatures of cardholders were obtained for the distribution of kerosene oil, thereby the dealer contravened the Clause 17 (a) (b) (c), 19 Annex-I, Para 2 (1) (a), 22

(iii) (iv) (v) of APSPDS (C) Order 2008 and condition 4 (i) (ii), 8, 10 and 12 of the authorization. The Dy. Tahsildar seized the ground balance stock and filed the complaint before the Joint Collector,

Nizamabad, in turn, the Joint Collector confiscated the value of seized commodities after hearing both sides and verified the seized records.

3. Aggrieved by the order of Joint Collector, Nizamabad, this memorandum of appeal is preferred on the ground that the order under appeal is against to the procedure and law and the order is contrary to the Panchanama. According to the Panchanama, the variation is excess 0.21 quintals, whereas, in the order under appeal, it is shown less 5.68 quintals. But the seized material is correctly shown 1.72 quintals of PDS and AAY rice.

4. The appellants' further contention is that in fact Panchanama is not conducted and report is false, the allegations against the dealer that the dealer is diverting the commodities is false and without any evidence. It is further contended that the respondent No.2 Kishan is a daily wages employee appointed by the Indur Vanitha Super Bazar as

Helper. The inspecting authorities obtained the signatures on the

Panchanama without conducting Panchanama at the shop. In the order under appeal it is mentioned that 5.68 quintals of rice found less, but whereas, in the Panchanama quantity is different which tallying, it shows that the respondent No.2 Joint Collector has not 3 Crl.A.No.85/2011 verified the records properly and order is passed without applying mind. In the memorandum of appeal, the variation in the

Panchanama and variation in the order under appeal are shown as follows:

AS PER THE PANCHANAMA

Sl. Commodity O.B. Receipts Total Distribution Ground Variation No. Balance 1 PDS rice 0.36 52.4o 52.76 18.12 34.85 (+) 0.21 2 AAY rice – 5.25 5.25 1.4o 3.85 – 3 Sugar 0.oo 1.72 1.72 0.oo 1.72 – 4 K.Oil – – – – – – 5 P.Oil – – – – – – 6 AP.Rice – – – – – –

AS PER THE ORDER

Sl. Commodity O.B. Receipts Total Distribution SR Book Ground Variation No. Balance Balance 1 PDS rice 0.36 52.4o 52.76 13.28 39.48 2 AAY rice 0.oo 5.25 5.25 0.35 4.9 38.7o (-) 5.68 Total 0.36 57.65 58.01 13.63 44.38 38.7 (-) 5.68 3 Sugar 0.oo 1.72 1.72 0.oo 1.72 0

It is further contended that the shop is connected to the Indur

Vanitha Super Bazar Society and a false case is booked against the appellant on the instigation of the persons, who having ill eyes on the shop. Prayed to set aside the order under appeal.

5. Heard the arguments of appellants' counsel and Public

Prosecutor and perused the record received from the Office of Joint

Collector. On perusal of record, it is apparent that there is a variation of stock mentioned in the complaint and in the order under appeal. In the complaint and in the Panchanama, the variation is shown excess of 0.21 quintals, whereas, in the order under appeal, it is mentioned variation is less 5.68 quintals. As per the Panchanama and check memo contents, the variation is excess of 0.21 quintals and no material is collected to show that the commodities were diverted from the shop without distributing to the cardholders. The record reveal 4 Crl.A.No.85/2011 that some of the cardholders statements were recorded in which they deposed that less quantity of rice and kerosene was distributed them, though as per the register the allotment is more. But the authorities are not seized the essential commodities cards for comparison.

Therefore, the simply recording statements of consumers is not sufficient unless their statements are supported with documentary evidence. The excess stock is only 0.21 quintals, out of the total quantity of 52.76 quintals. It is not even 0.5% variation. The said variation is less than the permissible variation under Rule 24 of A.P.

State Public Distribution System (Control) Order, 2008. Therefore, the seizure of ground balance of 38.70 quintals of rice and 1.72 quintals of sugar is unjustified, in fact there is no variation in the sugar stock.

Moreover, the quantity of commodities shown in the order under appeal and seized Panchanama are contrary to each other. Therefore, the order under appeal is unjustified. Hence, the order under appeal is set aside as the variation is very less quantity within the permissible variation.

6. In the result, this Appeal is allowed. The order under appeal in case No.CS6/484/2011, dated 27-8-2011 is set aside. The value of the seized commodities shall be refunded to the appellant after appeal time. If there are any other allegations about the obtaining identity card on Binami name and any other contravention of rules, the Civil

Supplies Authorities are at liberty to take criminal action and cancellation of licence of Fair Price Shop No.53 etc.

No costs.

Dictated to Personal Assistant, transcribed by her, corrected and

pronounced by me in Open Court on this the 6th day of September,

2012.

Sessions Judge,

Nizamabad.

5

Crl.A.No.85/11

IN THE COURT OF SESSIONS JUDGE, AT NIZAMABAD

PRESENT: Sri A.Navamohan Rao, B.A.,LL.M.,

Sessions Judge, Nizamabad.

Thursday, the 6th day of September, 2012

CRL.Appeal No.85 of 2011

1 From what Court the : The District Collector, Appeal is preferred Nizamabad 2 Number of the case in that : CS6/484/2011 Court 3 Number of Appeal : Crl. Appeal No.85 of 2011 4 i) Name of the appellant : 1. Laxmi Narayana, Manager, Indur Vanitha Super Bazar, Dealer F.P. Shop No.53, Nizamabad Urban, Nizamabad.

2. Kishan @ Krishna, S/o. Narayan Rao, age 36 years, Occ: Private Service, R/o. Nizamabad.

1 The Dy. Tahsildar (Enforcement) Civil Supplies, Nizamabad.

2 The Joint Collector (CS), Nizamabad. 5 Sentence & law under : U/s 6-A of the E.C. Act the which it was passed learned District Collector, Nizamabad ordered for confiscation of 100% of the excess stock of rice and sugar in favour of the government.

6 Whether confirmed, : Modified modified or reversed.