Smt. P.venkata Jyothirmai

1I ADSJ Court, VSP

SC No. 161/2015

IN THE COURT OF METROPOLITAN SESSIONS JUDGE

- cum - I ADDITIONAL DISTRICT & SESSIONS JUDGE - cum - SPECIAL JUDGE TO TRY THE OFFENCES UNDER PROTECTION OF

CHILDREN FROM SEXUAL OFFENCES ACT.2012 : VISAKHAPATNAM

Present: Sri S. Sasidhar Reddy

Special Judge to Try the Offences under POCSO ACT

-cum- Metropolitan Sessions Judge -cum-I Addl. District & Sessions Judge

Thursday, the 23 rd day of February, 2017.

SESSIONS CASE No.161/2015.

a)The serial number of the case:S.C.No.161/2015.

b) Date of commission of offence:14.06.2013.

c)Name of the Complainant, if any:State represented by the Inspector of Police, Paderu Police station, Visakhapatnam District.

d)Name of the accused person, his KilloRambabu@Dasu, parentage and residence, if anyS/o.Satyanarayana, aged 24 years, Kodu ST PTG, resident of Vugamgoyyi village, H/o. Lagisapalli panchayat,PaderuMandal, Visakhapatnam District.

e)Offence complained of or proved :U/ss.376(2)(f), 506 of IPC and Section 4 of POCSO Act, 2012.

f)Plea of the accused and his Accused pleaded not guilty examination, if any

This case has come up on 15.02.2016 for final hearing before me in the presence of Sri K.Prudvi Raj, learned Addl. Public Prosecutor for the State and of Sri P.Gangopadhyaya, Advocate for the accused and having this matter stood over for consideration till this day, this Court delivered the following:

J U D G M E N T

1.The Inspector of Police, Paderu Circle, Visakhapatnam District filed charge sheet against the above named accused in Crime No.59/2013 on the file of Paderu Police station, for the offences U/s.376(2)(f), 506 of Indian Penal

Code and Section 4 of Protection of Children from Sexual Offences Act, 2012 (hereinafter referred as ‘POCSO ACT’).

2.The case of the prosecution is that the accused and the victim PW-2 are related and the family of the victim and the accused are residing in nearby the 2I ADSJ Court, VSP

SC No. 161/2015

houses in the same village. On 14.06.2013 at about 10.00 p.m., the accused went to the house of PW-1 and requested her to sent PW-2 with him to purchase some goods. Though PW-1 objected, the accused took away PW-2 from the house. He took her to nearby turmeric garden and gagged her mouth and forcibly raped her. Due to the force used by the accused in penetration PW-2 suffered injuries which resulted in continuous bleeding and severe pain. The accused after committing rape, threatened PW-2 with dire consequences if she discloses the incident to anyone. Thereafter he took her to her house and he also slept in the same house during that night. As PW-2 was weeping PW-1 questioned her and also observed the bleeding, PW-2 informed about rape. On the next day i.e., on 15.06.2013 PW-2 informed the same to K.Jhansi Rani,PW-15, J.Madhavi PW-5 who had visited the village for distribution of medicines and they examined PW-2 and immediately summoned an ambulance and shifted PW-2 to Government Hospital, Paderu.

PWs-1 and 2 also informed the incident to their neighbours about the incident and upon their advise, lodged a report at Paderu Police station on 15.06.2013 at 9.00 a.m., PW-12 P.Kondala Rao, Asst. Sub Inspector-475 PW-12 registered FIR and took up investigation.

Shaik Gafoor, Inspector of police, Paderu PW-13 took up investigation and visited the scene of offence and seized broken bangle pieces under the cover of observation report and examined the witnesses LWs-1 to 11 and recorded their statements and sent the victim to Andhra Medical College,

Visakhapatnam for examination and preserved the material objects and seized the blood stained clothes and sent them to RFSL. The age determination test was also conducted and certificate was issued that PW-2 was aged about 12 years. The successor of PW-13, N.Sai PW-14 Inspector of police, Paderu

Circle, took up further investigation, arrested the accused and produced him

before the Court. After received the medical certificates and after completion

of the investigation, filed charge sheet.

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SC No. 161/2015

3.The charge sheet was taken on file as PRC No.15/2014 by the Judicial

First Class Magistrate, Paderu. The learned Magistrate after examining the

material on record had committed the case for trial before the Special

Sessions Court. The same was taken on file by this Court as SC

No.161/2015 and the accused was summoned. The accused appeared for some time, and later he did not appear and therefore, Non-bailable warrant was issued against him. Later the accused was produced before the Court on execution of NBW and the accused was remanded to custody. As the accused did not have means to engage counsel to defend his case, legal aid counsel was appointed. Accused was produced from custody and copies of documents were furnished to him under Section 207 Cr.P.C.

4.After hearing the learned Additional Public Prosecutor and the learned legal aid counsel for the accused, charges U/ss.376(2)(f) and 506 of Indian

Penal Code and Section 4 of the Protection of Children from Sexual Offences

Act, 2012 were framed, read over and explained to the accused. The accused pleaded not guilty and claimed to be tried. Accordingly, the trial schedule was fixed and trial was conducted.

5.During the course of trial, the prosecution examined PWs-1 to 16 and marked Exs.P1 to P13 and MOs-1 and 2 in support of their case.

6.After closure of the prosecution’s evidence, the evidence recorded was put to the accused U/s. 313 of Criminal Procedure Code, 1973 and he denied the entire evidence and reported no witnesses on his behalf. The case was posted for arguments and the learned Additional Public Prosecutor and the learned counsel for the accused were heard.

7.After hearing the case was posted for judgment where upon it was noticed in the evidence of witnesses that the accused is related to the victim, therefore, the offence U/s.5 of POCSO Act, aggravated penetrative assault is 4I ADSJ Court, VSP

SC No. 161/2015

attracted. Therefore, the case was reopened and after hearing the learned

Public Prosecutor and the learned counsel for the accused were heard and charge U/s.5(n) and 5(p) punishable u/s.6 of POCSO Act, 2012. Accused pleaded not guilty and the learned counsel for the accused reported that there is no need to further examination of the witnesses. Arguments were heard and case was posted for judgment.

8.The learned Additional Public Prosecutor contended that all the witnesses have categorically deposed that the accused had raped PW-2 and PW-2 supported the prosecution and deposed that the accused forced himself upon her and committed rape. This is also corroborated by the witnesses PWs-15 and 3 and medical evidence. Therefore, the prosecution has established that the accused had committed offence of penetrative assault and since the accused is related to the victim, the accused had committed aggravated penetrative assault.

9.Per contra the learned legal aid counsel for the accused contended that there is political enmity between the victims’ family and the accused and therefore, the accused was falsely implicated. The evidence is not sufficient to prove the case. Further the place where the offence took place is surrounded by houses and the cries of the victim would have been heard by the neighbours, however late in the night the offence took place. The learned counsel further contended that the Investigating Officer had violated the norms and guidelines issued by the Union government for medical examination and investigation under POCSO Act. Further the age determination test cannot be used for the reason that only where there is discrepancy in the school certificates, age determination could be done. In the present case, the victim had gone to the school and therefore age determination could not have been done.

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SC No. 161/2015

10.After hearing the learned Additional Public Prosecutor and the learned counsel for the accused and upon examining the material on record, the following points emerge for consideration:

1.Whether the victim PW-2 was aged less than 18 years as on the date of offence?

2.Whether the prosecution has established that the accused

had committed sexual intercourse with the victim girl?

3. Whether the prosecution has established beyond reasonable doubt that the accused committed rape on the victim-girl?

4. Whether the prosecution has established that the accused committed aggravated penetrative assault against the victim?

5. Whether the prosecution has established that the accused had intimidated the victim?

11. POINT NO.1 :

The prosecution in support of its case that the victim was aged less than 18 years relied upon the evidence of Dr.V.Chandra Sekhar, PW-9 and Ex.P5 age determination certificate. PW-9 deposed that as per his examination, the victim was aged 12 years as on the date of examination. In the light of this evidence it has sto be held that the victim was aged 18 years as on the date of offence. The learned counsel for the accused had contended that the age determination could only be resorted to in the absence of school certificate.

This cannot be considered as the only manner of determination of age.

Further the age determination test shows the age of the victim as 12 years.

Whatever may be margin of the error, the victim was less than 18 years as on the date of offence. Therefore, the prosecution has established that the victim was aged less than 18 years as on the date of offence.

12. POINT No.2:

Section 29 of the Protection of Children from Sexual Offences Act, 2012 reads as follows:

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SC No. 161/2015

“Presumption as to certain offences”: Where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections, 3,5,7 and Section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved”.

From the above, this Court is mandated in a prosecution for the offence U/s.5 of Protection of Children from Sexual Offences Act, 2012, to presume that the accused had committed offence until contrary is proved. The presumption is that the accused had committed the offence. The offence is defined as particular act committed against a child. The question would be whether the presumption extends only to the extent that the person being prosecuted had committed the offence or does the presumption extends to the occurrence of the offence also. The presumption was incorporated reversing the burden that is traditionally placed on the prosecution on to the accused taking into consideration the grave nature of the offence. This does not completely exonerate the prosecution from leading the evidence. But it lessens the burden of proof on the prosecution. If the presumption is extended to the occurrence of the offence also then the presumption extends even to the age of the victim as well as other ingredients of the offence. This Court is of the opinion that confining the presumption to the accused above is contrary to the language of the statute. Unlike Section 304-B of Indian Penal Code or Section 138 of Negotiable Instrument Act, 1882 where the presumption is extended as to the commission of the offence only after establishment of certain foundational facts, the statutory language U/s.29 of POCSO Act, 2012 is categorical that the Court shall presume that the accused had committed the offence without requirement of establishing any foundational facts. There is no requirement of any foundational fact being established. Therefore, this

Court shall presume that not only that the accused committed acts alleged but also the offence had taken place until contrary is proved. However, the burden on the accused is not the same as that on the prosecution. The 7I ADSJ Court, VSP

SC No. 161/2015

accused only has to show that the preponderance of the probability is that the offence had not occurred and that he had not committed the offence. This he can establish by either adducing evidence or by pointing the lacuna in the prosecution’s own evidence as held by the Hon’ble Supreme Court in

Rangappa Vs. Mohan reported in (2010) 11 SCC 441.

13.The prosecution in support of its case that the accused had had sexual intercourse with the victim, relied upon the evidence of PWs-1, 2, 3, 4, 5 and 15 as well as medical evidence of PW-10, the doctor who examined the victim and Ex.P6 preliminary report and Ex.P7 RFSL report, Ex.P8 final opinion. PW-2 the victim deposed that the accused had taken her from her house on the pretext that buying her chips and he had taken her to a turmeric garden and had forced himself upon her and raped her. That she suffered severe pain and had bled profusely and so weakened that PWs-5 and 15 who were ANMs who came to the village to distribute medicines, upon observing her condition, admitted her to hospital. PW-1 the mother of the victim observed the victim bleeding profusely and her clothes were blood stained and she was in severe pain. This evidence is further corroborated by the evidence of PW-10 the doctor who examined the victim. PW-10 issued Ex.P8 final opinion observing that there was posterior hymenal tear present. Congestion of vagina present.

Hymen not intact and that there were no external injuries. In the light of the evidence of PW-10 with the opinion of RFSL report, the blood stains on the cloths of the victim, it has to be held that the accused had sexual intercourse with the victim.

14. In the course of cross-examination, PW-10 stated that same injuries would be seen after first sexual intercourse. But she cannot say whether the intercourse was consensual or non-consensual. But the evidence is sufficient to show that sexual intercourse had occurred. In the light of the above evidence of PWs-1 and 2 and the medical evidence taken along with 8I ADSJ Court, VSP

SC No. 161/2015

presumption U/s.29 of POCSO Act, it has to be held that the prosecution has established that the accused had sexually intercourse with the victim.

15. POINT No.3:

In the light of the above discussion the victim was aged less than 18 years and that the accused had had sexual intercourse with the victim. It has to be held that the accused had committed rape. The victim was aged less than 18 years, therefore, her consent to the intercourse is irrelevant. Further the victim had deposed that she had not consented and the accused forced himself upon her, therefore, it has to be held that the prosecution has established that the accused had committed rape upon the victim PW-2.

16. POINT No.4:

In the light of the above discussion, it has to be he held that the prosecution has established that the accused had committed penetrative assault upon the victim. Further the evidence of prosecution witnesses is that the accused was closely related to the victim. In these circumstances, the burden laid upon the prosecution is only to establish the facts of sexual intercourse and that the offence alleged had taken place and the burden is on the accused to show and he had not committed the offence. The prosecution by its evidence was able to establish the eventual facts of the case relating to the age of the victim and the incidents of sexual intercourse. The burden is entirely on the accused, to show that he had not committed the offence. The accused did not adduce any evidence nor was he able to show anything from the evidence of the prosecution that the offence had not taken place or that he had not committed the offence. Therefore, it has to be held that the prosecution has proved its case. In those circumstances, the accused is to be held to have committed aggravated penetrative assault U/s.5(n) and 5(p) of

POCSO Act, 2012.

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SC No. 161/2015

17. POINT No.5:

PW-2 did not depose that the accused had threatened her. Therefore, the prosecution has failed to establish that the accused had criminally intimidated the victim.

18.In the result, the accused is found not guilty and he is acquitted of the charge U/s.506 of IPC. The accused is found guilty and he is convicted of the offences punishable U/ss.376(2)(f) of Indian Penal Code, 1860 and Section 5(n)&(p) punishable U/s.6 of the Protection of Children from Sexual Offences

Act, 2012.

Dictated to the Stenographer Gr-I, transcribed by him, corrected and pronounced by

me in open Court on this the 23 rd day of February, 2017.

Sd/-Sri S.Sasidhar Reddy

SPECIAL JUDGE TO TRY OFFENCES UNDER POCSO ACT

-cum– METROPOLITAN SESSIONS JUGE -cum- I ADDITIONAL DISTRICT & SESSIONS JUDGE

VISAKHAPATNAM

Hearing of accused:

Accused was heard as to the quantum of sentence. The Accused stated that he was innocent and he did not commit the offence and that he is poor and has a wife and two children dependent upon him.

The offence established against the accused is that of aggravated penetrative assault as the victim is a relative and the accused was in a position of trust. The young age of the victim and the harm inflicted upon her as shown in the medical evidence is the aggravating factor in this case. The mitigating factors is only that the accused is the sole bread winner of his family.

Having regard to the nature of the offences, the offence falls within

Section 376(2)(f) of IPC, 1860 as well as Section 5(n) & (p) of the Protection of Children from Sexual Offences Act, 2012 punishable U/s.6. The punishment prescribed U/s.6 of POCSO Act, is a minimum term of 10 (ten) years which may extend to imprisonment for life. Similar punishment is provided U/s.376(2)(f) of IPC also. Since the punishment is similar under 10I ADSJ Court, VSP

SC No. 161/2015

both the Acts, the accused is punished U/s.6 of POCSO Act, 2012. In view of the circumstances of the case, the accused is sentenced to the minimum term of 10 (ten) years of rigorous imprisonment. In view of the financial condition of the accused, no fine is imposed. The case is directed to be placed

before the District Legal Services Authority, Visakhapatnam, to determine the

compensation that can be paid to the victim under the State Victim

Compensation Scheme. The period of custody undergone by the accused

from 02.10.2014 to 22.12.2014 and from 25.08.2016 to 23.02.2017

shall be given set-off under section 428 of Criminal Procedure Code.

The accused is informed of his right to file appeal against this Judgment before the Hon'ble High Court and also of his right to seek free legal aid in the event he does not have sufficient means to file such appeal. MOs-1 and 2 shall be destroyed after appeal time is over.

Dictated to the Stenographer Gr-I, transcribed by him, corrected and pronounced by

me in open Court on this the 23 rd day of February, 2017.

Sd/-Sri S.Sasidhar Reddy

SPECIAL JUDGE TO TRY OFFENCES UNDER

PROTECTION OF CHILDREN FROM SEXUAL OFFENCES

-cum– I ADDITIONAL DISTRICT & SESSIONS JUDGE

VISAKHAPATNAM

APPENDIX OF EVIDENCE

Witness Examined For Prosecution:

PW-1: Killo Chilakamma, material witness, PW-2: victim girl; PW-3: Killo Suribabu, brother of victim; PW-4: Seedari Appalamma,neighbour’ PW-5: J.Madhavi, ANM Nurse; PW-6: Killo Seethamma, neighbor; hostile; PW-7: Lakey Kondamma, VRO, material witness; PW-8: Palasi Padmavathi, VRO, material witness; PW-9: Dr.V.chandra Sekhar, Associate professor, FSM, AMC, PW-10: Dr.P.Vijaya Sheela, Asst.Professor, KGH, Vsp. PW-11: Dr.G.Anil Babu, Civil Asst. Surgeon, Area Hospital, Paderu; PW-12: P.Kondala Rao, ASI, Paderu; PW-13: Shaik Gafoor, Inspector of police, Paderu; PW-14: N.Sai, Inspector of police, Paderu; IO PW-15: K.Jhansi Rani, ANM nurse, Kindangi Sub-center; PW-16: Kurupa Mahesh, Photographer; For Defence: - NIL- 11I ADSJ Court, VSP

SC No. 161/2015

Exhibits marked

For Prosecution:

Ex.P1 : the report given to the police; Ex.P2 : 161 Cr.P.C., statement of PW-6; Ex.P3 : scene observation report; Ex.P4 : concessional statement of accused; Ex.P5 : is the age determination certificate of victim; Ex.P6 : the preliminary report dt.19.06.2013; Ex.P7 : RFSL report; Ex.P8 : Final opinion dt.29.11.2014; Ex.P9 : potency certificate; Ex.P10: FIR in Cr.No.59/2013 of Paderu PS; Ex.P11: rough sketch; Ex.P12: letter of advise along with covering letter; Ex.P13: Alteration memo;

For defence: -NIL- Material Objects : MO-1: Gold coloured fancy dress upper with buttons and beads embroidery; MO-2: Pieces of green and black coloured glass bangles;

Sd/-Sri S.Sasidhar Reddy

SPECIAL JUDGE TO TRY OFFENCES UNDER POCSO ACT

-cum– I ADDITIONAL DISTRICT & SESSIONS JUDGE

VISAKHAPATNAM

Copies to:

1.The Hon'ble Registrar (Judicial), Hon'ble High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh;

2.The Additional Public Prosecutor, I ADSJ Court, Vsp.

3.The Accused (free copy); ---- 12I ADSJ Court, VSP

SC No. 161/2015

CALENDER & JUDGMENT

IN THE COURT OF METROPOLITAN SESSIONS JUDGE

- cum - I ADDITIONAL DISTRICT & SESSIONS JUDGE

-cum - SPECIAL JUDGE TO TRY THE OFFENCES UNDER PROTECTION

OF CHILDREN FROM SEXUAL OFFENCE: VISAKHAPATNAM

S.C.No.161/2015

(PRC No.15/2014 of Judicial First Class Magistrate, Paderu in Cr.No.59/2013 of Paderu Police Station, Visakhapatnam District)

Name of the complainantState represented by the Inspector of Police,PaderuPolicestation, Visakhapatnam District.

Name of the accused:Killo Rambabu @ Dasu, S/o. Satyanarayana, aged 24 years, KOdu ST PTG, resident of Vugamgoyyi village, H/o. Lagisapalli panchayat, Paderu Mandal, Visakhapatnam District.

Date of complaint:15.06.2013.

Date of apprehension:02.10.2014

Date of commencement of Trial:29.11.2016

Date of closure of trial:19.12.2016.

Date of Judgment:23.02.2017

Whether the accused is in jail or on In Jail from 02.10.2014 to 22.12.2014 and bailfrom 25.08.2016 to 23.02.2017.

Explanation for the delay in : Separate docket extract of PRC No.15/2014 committal courtof JFCM, Paderu is appended.

Explanation for the delay in the Sessions Court:

This case has been committed by the learned Judicial First Class Magistrate,

Paderu vide its committal Orders in PRC.No.15/2014 dt.19.12.2014. The same was received on 06.04.2015 and this Court had taken on file on 22.06.2015 and registered as SC.No.161/2015 and summons were ordered to the accused but could not be served on him and fresh summons were ordered from time to time. Finally on 28.4.2016 NBW was issued and on 25.08.2016 the accused was produced in execution of NBW and on 20.09.2016 charges U/ss.376(2)(f), 506 IPC and Section 4 of POCSO Act,2012 were framed and trial schedule was fixed and trial was conducted from 29.11.2016 to 19.12.2016 PWs-1 to 16 were examined and Exs.P1 to P13 and

MOs-1 and 2 were marked.

On completion of prosecution evidence, matter was posted for 313 Cr.P.C., examination of the accused on 22.12.2016 and accused was examined U/s.313 13I ADSJ Court, VSP

SC No. 161/2015

Cr.P.C., and reported he has witnesses on his behalf and for defence evidence posted to 29.12.2016 and on 5.1.2017 and the accused reported no defence evidence and posted for arguments to 19.1.2017. The matter underwent several adjournments for arguments and finally on 10.02.2017 it was observed that the victim is related to the accused and therefore, charge U/s.5 and 6 of POCSO Act was framed and explained the same to the accused and he pleaded not guilty and posted the matter to 15.02.2017 for further evidence if any. Counsel for accused reported no witness are required to be examined and posted for judgment to 23.02.2017

On 23.2.2017 accused produced from Central Prison. Judgment was

pronounced. In the result, the accused is found not guilty and he is acquitted of

the offence U/s.506 of IPC. The accused is found guilty and he is convicted of the offences punishable U/ss.376(2)(f) of Indian Penal Code, 1860 and Section 5(n)&(p) punishable U/s.6 of the Protection of Children from Sexual Offences Act, 2012 and is the accused is sentenced to the minimum term of 10 (ten)

years of rigorous imprisonment U/s.6 of POCSO Act, 2012. The period of

custody undergone by the accused from 02.10.2014 to 22.12.2014 and

from 25.08.2016 to 23.02.2017 shall be given set-off under section 428

of Criminal Procedure Code.The accused is informed of his right to file appeal against this Judgment before the Hon'ble High Court and also of his right to seek free legal aid in the event he does not have sufficient means to file such appeal. No witness is retained beyond three days and there is no delay. MOs-1 and 2 shall be destroyed after appeal time is over.

Sd/-Sri S.Sasidhar Reddy

METROPOLITAN SESSIONS JUDGE

-cum- I Addl. District & Sessions Judge -cum-Special Judge to try the offences Under POCSO Act: Visakhapatnam 14I ADSJ Court, VSP

SC No. 161/2015

FORM No.30

FORM OF WARRANT ON A SENTENCE OF IMPRISONMENT

(U/s. 418(1) Code of Criminal Procedure)

IN THE COURT OF SPECIAL JUDGE TO TRY OFFENCES UNDER PROTECTION OF CHILDREN FROM

SEXUAL OFFENCES ACT –cum – I ADDITIONAL DISTRICT & SESSIONS JUDGE – cum -METROPOLITAN SESSIONS JUDGE: VISAKHAPATNAM

SC No. 161/2015

To The Superintendent, Central Prison at Adavivaram, Visakhapatnam.

Whereas at the Sessions held before me on this the 23rd day of February, 2017 : Killo Rambabu accused in SC.No.161/2015 of the said sessions (Crime No.59/2013 of Paderu Police station, Visakhapatnam District) was duly convicted for the offence U/s. 376(2)(f) of IPC and Section 5(n) and (p) of POCSO Act, 2012 the accused is sentenced as follows: The accused is found not guilty and he is acquitted of the charge U/s.506 of IPC. The accused is found guilty and he is convicted of the offences punishable U/ss.376(2)(f) of Indian Penal Code, 1860 and Section 5(n)&(p) punishable U/s.6 of the Protection of Children from Sexual Offences Act, 2012 and the accused is

sentenced to the minimum term of 10 (ten) years of rigorous imprisonment

U/s.6 of POCSO Act, 2012. The period of custody undergone by the accused from 02.10.2014 to 22.12.2014

and from 25.08.2016 to 23.02.2017 shall be given set-off under section 428 of

Criminal Procedure Code.

This is to authorize and require you, the Superintendent, to receive the said accused i.e., Killo Rambabu @ Dasu, S/o.Satyanarayana, aged 24 years, Kodu ST PTG, resident of Vugamgoyyi village, H/o. Lagisapalli panchayat, Paderu Mandal, Visakhapatnam District into your custody in the jail together with this warrant and thereby safely to keep him until he shall be delivered over by you to proper authority and custody for the purpose of the undergoing the punishment as stated above under the aforesaid sentence. IThe prisoner received (Diet):

a)the diet to which the prisoner was accustomed according to his own statement:-Rice

b)the diet recommended by the sessions judge.

c)Brief reasons if rice or wheat is recommended: IIThe distance from the prisoner’s residence to the Nearest Railway/bus Station is: Km., IIIDetails of the prisoner’s properties on the person: - IV.I hereby certify that fine of Rs. /- has not been recovered:

V.Descriptive Roll:

1.Name : Killo Rambabu @ Dasu,5.Age : 24 years,

2.Father's Name :, Satyanarayana6.Sex : Male

3.Village : Vugamgoyyi, Paderu7.Marital Status:

4.Occupation : 8.Religion: Hindu

VI.Descriptive Marks:

1. A black mole on the left side of the neck;

2. A black mole on the left side of the chest; Given under my hand and the seal of the Court, this the 23 rd day of February, 2017.

SPECIAL JUDGE TO TRY OFFENCES UNDER

PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT

–cum – I ADDITIONAL DISTRICT & SESSIONS JUDGE

VISAKHAPATNAM

15I ADSJ Court, VSP

SC No. 161/2015

Hearing of Accused

IN THE COURT OF SPECIAL JUDGE TO TRY OFFENCES UNDER

PROTECTON OF CHILDREN FROM SEXUAL OFFENCES ACT

–cum – I ADDITIONAL DISTRICT & SESSIONS JUDGE – cum-METROPOLITAN SESSIONS JUDGE: VISAKHAPATNAM

S.C.No. 161/2015.

Name of the Accused No:

Killo Rambabu @ Dasu, S/o.Satyanarayana, aged 24 years, Kodu ST PTG, resident of Vugamgoyyi village, H/o. Lagisapalli panchayat, Paderu Mandal, Visakhapatnam District.

Charges U/ss.376(2)(f) of IPC and Section 5(n)& (p) of Protection of Children from Sexual Offences Act, 2012 are proved against you. Do you have anything to say with regard to quantum of sentence to be imposed on you?

Hearing of the Accused with regard to the charge U/s.376(2)(f) IPC?

Hearing of the Accused:with regard to the charge U/s.5(n)(p) of POCSO Act?

Dated 23 rd Day of February, 2017.

Spl.Judge to try Offences under Protection of Children from Sexual Offences -cum- Metropolitan Sessions Judge Visakhapatnam 16I ADSJ Court, VSP

SC No. 161/2015

Visakhapatnam,

Dated: 23.2.2017

ACKNOWLEDGMENT OF THE ACCUSED

I, Killo Rambabu @ Dasu, S/o.Satyanarayana, aged 24 years, Kodu ST PTG, resident of Vugamgoyyi village, H/o. Lagisapalli panchayat, Paderu Mandal, Visakhapatnam District. acknowledge the receipt of free copy of the Judgment in SC No.161/2015 on the file of the Hon'ble I Addl. District and

Sessions Judge, Visakhapatnam, on this day i.e.23.2.2017.

(Killo Rambabu) Accused

Visakhapatnam,

Dated: 23.2.2017

ACKNOWLEDGMENT OF THE ACCUSED

I, Killo Rambabu @ Dasu, S/o.Satyanarayana, aged 24 years, Kodu ST PTG, resident of Vugamgoyyi village, H/o. Lagisapalli panchayat, Paderu Mandal, Visakhapatnam District. acknowledge the receipt of free copy of the Judgment in SC No.161/2015 on the file of the Hon'ble I Addl. District and

Sessions Judge, Visakhapatnam, on this day i.e.23.2.2017.

(Killo Rambabu) Accused 17I ADSJ Court, VSP

SC No. 161/2015

1 PDJ Court, Vsp, Crl. Appeal Nos.25 & 26 of 2018

BEFORE THE APPELLATE AUTHORITY – CUM –

THE PRINCIPAL DISTRICT & SESSIONS JUDGE: VISAKHAPATNAM

Present: Smt.P.V.Jyothirmai

Appellate Authority-cum-

Principal District & Sessions Judge,

Monday, the 09 th day of April, 2018.

CRIMINAL APPEAL Nos.25 & 26 of 2018.

From what Court the Appeal isBefore the Court of Joint Collector, preferred.Visakhapatnam.

Number of the case in that CourtCC.No.17/2016 CSR-5, dated 30.12.2017

Number of the appealCrl.A.Nos.25 & 26 of 2018.

Name of the appellant/ appellants(Appellant in Crl.A.No.25/2018) 3 rd respondent – vehicle owner Thetala Venkata Reddy, S/o. Chella Reddy, Hindu, aged 29 years, Power of Attorney Holder of G.Sankara Rao, Prop. M/s.L:axmi Agencies and Owner of Ashok Leyland Tranker Lorry, regn.No.AP37 V 9675 (Appellant in Crl.A.No.26/2018) 1 st respondent-owner of the HSD oil. Sabbila Ramakrishna Reddy, S/o. Masthan Reddy, Hindu, aged 38 years, residing at DoorNo.55-42-8/3,Doctor’sColony, Seethammadhara, Visakhapatnam-13.

Name of the respondentThe State represented by the Public Prosecutor, Visakhapatnam. (The Assistant SupplyOfficer,PaderuDivision, Visakhapatnam).

Sentence and law under which itOrdered confiscation of 100% of seized was imposed in the Lower court.unauthorized HSD available in compartment No.2 of the Tanker lorry bearing Regn.No.AP37 V 9675 in favour of the Government besides imposition of penalty of Rs.50,000/- agaisnt the vehicle owner /3rd respondent in lieu of its confiscation. The Tahsildar, Paderu shall remit the confiscated value of the seized HSD in compartment No.1 to the 1456-CS Head of Account immediately and furnish original challan to the Court for record.

PDJ Court, Vsp, 2Crl. Appeal Nos.25 & 26 of 2018

As the 4000 ltrs of HSD available in compartment No.1 of the tanker lorry is found to be adulterated in the laboratory analysis it cannot be sold and it shall be destroyed by the Tahsildar, Paderu under cover of mediators report and furnish a report to the Court for record. The 3rd respondent and vehicle owner shall remit the penalty amount within 10 days from the date of receipt of the Order and get his vehicle released. If the 3rd respondent fails to remit the penalty amount within the time stipulated, the Tahsildar Paderu shall take action for public auction of the tanker lorry and made good the penalty amount from the higher bid amount and return the balance amount if any to the 3rd respondent under proper acknowledgment.

Whether confirmed, Reversed or modifiedIn the result, both the appeals are partly allowed, modifying the order of the learned JointCollectordated30.12.2017in C.C.No.17/2016 CSR-5, by reducing the confiscation of the seized stocks to 25% from 100% in favour of the Government. The remaining seized stock of the appellant/1st respondent shall be released subject to remittance of 25% of variation stock or value of the variation stock by the appellant/1st respondent to the government under the relevant head of account. In so far as imposition of penalty of Rs.50,000/- against the appellant/3rd respondent is concerned, it is decreased to Rs.10,000/- (Rupees ten thousand only) and the seized vehicle shall be released subject to payment of the modified fine amount.

Date of or on which presentation20.02.2018.

Date of filing20.02.2018.

Notice issued by court to appear01.03.2018

Bail bonds, if the appellants haveDoes not arise been let out on bail 3 PDJ Court, Vsp, Crl. Appeal Nos.25 & 26 of 2018

Appellant ordered to appear:03.04.2018

Date of hearing:03.04.2018

Date of judgment:09.04.2018

This appeal has come up before me on 03.04.2018 for final hearing and disposal in the presence of Sri M.K.Sitaramayya, M.S.Venkatesh, M.K.Srinivas, learned counsel for the appellant and of Sri P.S.Naidu, learned Public Prosecutor for the respondent/ State; and having heard the matter on both sides and the matter is coming up for consideration to this day, this Court delivered the following:

C O M M O N J U D G M E N T

1. Criminal Appeal No.25 of 2018.

This Criminal Appeal has been preferred by the appellant/3rd respondent Under Section 6(C) of the Essential Commodities Act,1955 against the Order dated 30.12.2017 passed by the Joint Collector,

Visakhapatnam U/s.6(A) (1) of the EC Act in CC.No.17/2016-CSR-5, by

Ordered confiscation of 100% of seized unauthorized HSD available in compartment No.2 of the Tanker lorry bearing Regn.No.AP37 V 9675 in favour of the Government besides imposition of penalty of Rs.50,000/- agaisnt the vehicle owner/3rd respondent in lieu of its confiscation, challenging the validity and correctness of the impugned Order.

2. Criminal Appeal No.26 of 2018.

This Criminal Appeal has been preferred by the appellant/1st respondent Under Section 6(C) of the Essential Commodities Act,1955 against the Order dated 30.12.2017 passed by the Joint Collector,

Visakhapatnam U/s.6(A) (1) of the EC Act in CC.No.17/2016-CSR-5, ordering destruction of 4000 ltrs., of HSD available in compartment

No.1 of the tanker lorry as it was found to be adulterated in the laboratory analysis, it cannot be sold, directing the Tahsildar, Paderu 4 PDJ Court, Vsp, Crl. Appeal Nos.25 & 26 of 2018 under cover of mediators report to implement the order and furnish a report, challenging the validity and correctness of the impugned Order.

3.For the sake of convenience the parties will be referred to as they are arrayed before the Lower Court. The appellant in Crl.A.No.25/2018 herein is the 3rd respondent, the appellant in Crl.A.No.26/2018 herein is the 1st respondent, and the respondent herein is the complainant

before the Lower Court.

4.Since both the appeals preferred against one order passed by the learned Joint Collector, this Court is of the considered view that a common order would suffice to meet the ends of justice.

5.The case of the complainant, in brief, is that the Assistant Supply

Officer, Paderu Division, Visakhapatnam District, on receipt of information from the Sub-Inspector of Police, Paderu that one oil tanker

No.AP37 V 9675 seized under the presumption that the vehicle unauthorisedly transporting the diesel and handed over at MRO’s office, Paderu, on 03.05.2016 he along with his staff conducted enquiry at MRO’s office, Paderu. On enquiry, the 1st respondent is carrying business in the name and style of Anantha Lakshi Petrol Bunk at Padmanabham and also doing road contract works with partners in

Paderu division. He purchased High Speed Diesel (HSD) in the name of four contractors each 2000 ltrs., @ 53.00 ps., from his own bunk vide cash/credit bills dt.03.05.2016 and transporting bulk quantity through lorry AP37 V 9675 and the diesel was unloaded in four places where road works are going on.

(a) On enquiry, the driver of the tanker lorry (i.e., 2nd respondent) stated that he is a temporary driver and produced cash bills and other 5 PDJ Court, Vsp, Crl. Appeal Nos.25 & 26 of 2018 supported papers given by petrol bunk owner and after conducting enquiry, it was established that the owner of bunk owner 1st respondent, transporting huge quantitites of petroleum products i.e., 8000 ltrs., of HSD for road works which is contrary to AP Petroleum

Products (Licensing & Regulation of supplies) Order, 1980 under cl.23,25,26(1) and The Motor Spirit and High Speed Diesel (Regulation of Supply, distribution and prevention of Malpractices) Orders, 2005 under Cl.3(6) and 3(7).

(b) Therefore, the inspecting officials seized 8000 ltrs., of HSD along with Tanker lorry under the cover of mediators and handed over the seized stock and lorry to Indian Oil Corporation Bunk Sri Shantisri

Service station, paderu for safe custody until further orders, duly taking samples of HSD from the Tanker lorry for laboratory analysis. After conducting tests, the Joint Director, Telangana State Forensic Science

Laboratory, Hyderabad has given report dt.22.12.2016 and opined that the Item No.1 and 2 HSD oil are substandard. Further the owner of the tanker lorry failed to obtain Form-F license for carrying the petroleum products.

Particulars of stocks seized and its value:

Sl.No.CommodityQuantity Estimated value in Rs.

1.High Speed Diesel Oil (HSD 8000 ltrs. @4,24,880-00 Oil) Rs.53.11 ps.

2.Tanker Lorry No.AP 37 V 14,00,000-00 9675 (Ashok Leyland make 1999) Total 8,24,880-00

6.Basing on the report lodged by the Assistant Supply Officer,

Paderu Division, Visakhapatnam District, proceedings under Section 6-

A(1) of the Essential Commodities Act, 1955 were initiated and the 6 PDJ Court, Vsp, Crl. Appeal Nos.25 & 26 of 2018 learned Joint collector has formulated the following charges against the respondents by issuing Show cause notice calling for their explanation:

Charge No.1: That the 1st respondent has indulged in selling huge quantity of petroleum product i.e., 8000 ltrs., of HSD on 03.05.2016 from his retail out-let of Sri Anantha Laxmi Enterprises of IOCL,

Padmanabham Village and Mandal vide cash/credit bills and transported to Paderu through AP37V 9675 for unloading the same at four places where road works are going on in contravention of provisions under Cl.23(1)(2) of the AP Petroleum Products (Licensing & Regulation of Supplies) Order, 1980.

Charge No.2: That the 1 st respondent has supplied and transported 4000 ltrs., adulterated HSD through compartment No.1 of the Tanker lorry No.AP37V 9675 on 03.05.2016 without Invoice in contravention of provisions under cl.25 and 26(1) of AP Petroleum Products (Licensing & Regulation of Supplies) Order, 1980. and U/s.3 (6) and 7 of the Motor Spirit and High Speed Diesel (Regulation of supply, distribution and prevention of Malpractices) Orders, 2005 with the active connivance of the 2 nd and 3 rd respondents,.

Charge No.3:That the 3 rd respondent being the owner of the Tanker lorry AP 37V9675 has failed to obtain registration certificate in Form-

F for transportation of petroleum products through his vehicle in contravention of provisions under cl.8(1)(2) of the AP Petroleum

Products (Licensing & Regulation of Supplies) Order, 1980.

Charge No.4: That the 2 nd and 3 rd respondents have abetted the activities of the 1 st respondent.

Charge No.5: By contravening the above the respondents are punishable under section 7 of the EC Act, 1955.

7.In the explanation submitted by the respondent, both the respondents denied all the charges and requested the Lower Authority to drop the proceedings.

7 PDJ Court, Vsp, Crl. Appeal Nos.25 & 26 of 2018

8.After receipt of the explanation from the respondents, notice was issued to them for their appearance and after hearing the respondents and upon considering the material on record, the learned Joint

Collector, passed Orders dt.30.12.2017, Ordered confiscation of 100% of seized unauthorized HSD available in compartment No.2 of the

Tanker lorry bearing Regn.No.AP37 V 9675 in favour of the Government besides imposition of penalty of Rs.50,000/- agaisnt the vehicle owner / 3rd respondent in lieu of its confiscation. The Tahsildar, Paderu shall remit the confiscated value of the seized HSD in compartment No.1 to the 1456-CS Head of Account immediately and furnish original challan to the Court for record. As the 4000 ltrs of HSD available in compartment No.1 of the tanker lorry is found to be adulterated in the laboratory analysis it cannot be sold and it shall be destroyed by the

Tahsildar, Paderu under cover of mediators report and furnish a report to the Court for record.

9.Aggrieved by the said order, the 1st and 3rd respondents, who are the appellants in Crl.A.No.26/2018 and Crl.A.No.25/2018 respectively, have come-up with these appeals, contending that the Order of learned

Joint Collector by confiscating 100% of the seized stock of 8000 ltrs.,

HSD oil relating to the 1st appellant and imposing penalty of Rs.50,000/- on the 3rd respondent by the learned Joint Collector contrary to law, weight of evidence and probabilities of the case. The learned Joint

Collector failed to consider that the 1st appellant had sold HSD oil under valid bills for unloading the same at four places as per the document

dt. 02.05.2016 seized by the inspecting authority. The analysis report

has not indicated nor opined the presence of any foreign substance in the sample so analyzed. The 1st respondent/appellant never supplied 8 PDJ Court, Vsp, Crl. Appeal Nos.25 & 26 of 2018 adulterated HSD as alleged by the inspecting authorities and the charge is not supported by any material and contents of the mediator’s report. The learned Joint Collector has not assigned any specific reasons for ordering for confiscation of 100% of 8000 lrs., of HSD is not in accordance with law.

The charges leveled against the 3rd respondent/appellant is incorrect as the appellant is having valid Form-F and there is no contravention of any control orders. As per G.O.Ms.No.17 dt.21.11.2016 F&CS, the Government has made it clear that renewal of

Form-F shall not be required and it is not mandatory. The learned Joint collector without assigning any reasons, imposed penalty of Rs.50,000/- is unjust and against the law. Thus, both the appellants requested the

Court to set aside the order of the learned Joint Collector,

Visakhapatnam by allowing the appeal.

10.On the other hand, the learned Public prosecutor appearing for the State, in toto supported the orders of the District Collector.

11.Heard both sides.

12.Now, the point that would arise for determination is:

Whether the impugned Order of learned Joint Collector, Visakhapatnam is sustainable on facts and law and whether any interference is warranted by this Court while sitting in the appeal ?

13. POINT : -

It is the main grievance of the appellant/1st respondent in

Crl.A.No.26/2018 that he sold HSD under valid bills for unloading the

same at four places where road works are going on and the inspecting officials also verified the said fact in the relevant records which were 9 PDJ Court, Vsp, Crl. Appeal Nos.25 & 26 of 2018 seized by them. The stock was purchased bonafidely by him under valid document dt.02.05.2016 from the Oil Company for road works and the allegation that the material was adulterated is denied. The analysis report has not indicated nor opined the presence of any foreign substance in the sample so analyzed. Whereas the gamut of the contention of the 3rd respondent/appellant in Crl.A.No.25/2018 is that he is not concerned with the charges 1 and 2. So far as the charge not holding Form-F License for transporting HSD oil is concerned, this respondent is having valid Form-F and as the diesel oil is sold under valid bills, the appellant/3rd respondent accepted for transporting of diesel oil for hire. They never abetted the activities of 1st respondent in any way. Due to financial problems, the appellant/respondent could nto furnish any bank guarantee and the vehicle lost its road worthiness and as per the G.O.Ms.No.17, it was made clear that renewal of Form-F shall not be required.

14.As seen from the impugned order of the leaned Joint Collector, it was observed that the 1st respondent has indulged in selling huge quantity of petroleum products of 8000 ltrs., from his retail out-let and transported to paderu on 03.05.2016 through tanker bearing No.AP37V 9675 for unloading at four places at paderu without any supply card. It was further observed that when the samples were sent to laboratory, it was found that they are adulterated. Though it was alleged that Item

No.2 is conforming to HSD as per the relevant Bureau of Indian (BIS)

Standard specifications and the Item NO.1 is not confirming to HSD with respect to density, distillation and Kinematic, viscosity on finding of the observations, no analysis report is produced to corroborate the said finding.

10 PDJ Court, Vsp, Crl. Appeal Nos.25 & 26 of 2018

15.Here it is pertinent to note that clause (g) of Section 2 of The

Andhra Pradesh Petroleum Products (Licensing & Regulation of

Supplies) Order, 1980, defines ‘ dealer’ :

Dealer’ means a person engaged in the business of purchase, or storage, sale or storage for sale of the petroleum products and includes his representative, agent and servants or any other person acting on his behalf and also hawker but does not include an Oil company’.

As seen from the record, there is no dispute about the fact that the appellant/1st respondent is an authorized Indian Oil Corporation

Dealer and he has been selling the HSD oil under valid bills and invoices. Though it was stated that the seized samples were sent to laboratory analysis, the Joint Director TSFSL, Hyderabad, sent a report dt.22.12.2016, opining that the samples sent for analysis were substandard, no analysis report find place in the record and there is no basis to come to a conclusion that item No.2 is not confirming to HSD with the specifications as required under law. So, there is no whisper in the order of the learned Joint Collector that the quality of petroleum products sold by a dealer without any invoices or bills. It is apparent on record that the seized stock is totally covered by valid bills.

16.Further as seen from the impugned order of the leaned Joint

Collector, it would reveal that the 3rd respondent/owner of the oil tanker had no Form-F license to transport the HSD oil. It is main contention of the appellant/3rd respondent that as the oil was sold by the 1st respondent under valid bills, the 3rd respondent accepted for transportation of diesel on hire. The allegation that this appellant/3rd respondent abetted the activities of 1st respondent is absolutely false 11 PDJ Court, Vsp, Crl. Appeal Nos.25 & 26 of 2018 and it does not arise. Due to financial problems, the appellant/3rd respondent could not furnish any bank guarantee and the imposition of penalty is very huge. Further, the government made it clear that renewal of Form-F shall not be required.

17.The learned counsel for the appellants submit that the learned

Joint Collector imposed heavy fine against the 3rd respondent and there is no rule enabling the learned Joint Collector to impose such huge fine and considering the socio-economic status of the appellant/3rd respondent and the facts and circumstances of the case, sought to decrease the fine amount.

18.As seen from the material on record as well as the order of the learned Joint Collector, no corroborative evidence or piece of document is produced to buttress the contention that the appellant/1st respondent has supplied petroleum products without bills and selling substandard products and the appellant/3rd respondent failed to obtain

Form-F for transportation of the petroleum products through the tanker in question. So, it is manifest from the aforesaid premises, though there is no patent irregularity or illegality in the Orders of the Joint collector, considering the facts and circumstances of the case, confiscation of 100% of the seized stock is excessive and thus, this

Court feels that it is just and reasonable to reduce the confiscation of stocks to 25% instead of 100% as imposed by the learned Joint

Collector. In so far as the imposing of penalty of Rs.50,000/- as against the 3rd respondent/appellant is concerned, this Court is of the considered view that it should be decreased to Rs.10,000/-(Rupees ten thousand), to meet the ends of justice. Thus, this point is answered accordingly.

12 PDJ Court, Vsp, Crl. Appeal Nos.25 & 26 of 2018

14.In the result, both the appeals are partly allowed, modifying the order of the learned Joint Collector dated 30.12.2017 in C.C.No.17/2016

CSR-5, by reducing the confiscation of the seized stocks to 25% from 100% in favour of the Government. The remaining seized stock of the appellant/1st respondent shall be released subject to remittance of 25% of variation stock or value of the variation stock by the appellant/1st respondent to the government under the relevant head of account. In so far as imposition of penalty of Rs.50,000/- against the appellant/3rd respondent is concerned, it is decreased to Rs.10,000/- (Rupees ten thousand only) and the seized vehicle shall be released subject to payment of the modified fine amount.

Dictated to the Stenographer Gr-I, transcribed by him, corrected and

pronounced by me in open court on this the 09 th April, 2018.

Sd/-P.V.Jyothirmai

APPELLATE AUTHORITY–cum-

PRINCIPAL DISTRICT & SESSIONS JUDGE

VISAKHAPATNAM

Copies to:

1. The Registrar (Judl.,) High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh.

2. The Joint Collector, Visakhapatnam along with entire record in CC No.17/2016-CSR5, dt.30.12.2017. ----- ///T.C.B.O.///

CHIEF ADMINISTRATIVE OFFICER

DISTRICT COURT, VISAKHAPATNAM

1 PDJ Court, Vsp, Crl. Appeal Nos.25 & 26 of 2018

BEFORE THE APPELLATE AUTHORITY – CUM –

THE PRINCIPAL DISTRICT & SESSIONS JUDGE: VISAKHAPATNAM

Present: Smt.P.V.Jyothirmai

Appellate Authority-cum-

Principal District & Sessions Judge,

Monday, the 09 th day of April, 2018.

CRIMINAL APPEAL Nos.25 & 26 of 2018.

From what Court the Appeal isBefore the Court of Joint Collector, preferred.Visakhapatnam.

Number of the case in that CourtCC.No.17/2016 CSR-5, dated 30.12.2017

Number of the appealCrl.A.Nos.25 & 26 of 2018.

Name of the appellant/ appellants(Appellant in Crl.A.No.25/2018) 3 rd respondent – vehicle owner Thetala Venkata Reddy, S/o. Chella Reddy, Hindu, aged 29 years, Power of Attorney Holder of G.Sankara Rao, Prop. M/s.L:axmi Agencies and Owner of Ashok Leyland Tranker Lorry, regn.No.AP37 V 9675 (Appellant in Crl.A.No.26/2018) 1 st respondent-owner of the HSD oil. Sabbila Ramakrishna Reddy, S/o. Masthan Reddy, Hindu, aged 38 years, residing at DoorNo.55-42-8/3,Doctor’sColony, Seethammadhara, Visakhapatnam-13.

Name of the respondentThe State represented by the Public Prosecutor, Visakhapatnam. (The Assistant SupplyOfficer,PaderuDivision, Visakhapatnam).

Sentence and law under which itOrdered confiscation of 100% of seized was imposed in the Lower court.unauthorized HSD available in compartment No.2 of the Tanker lorry bearing Regn.No.AP37 V 9675 in favour of the Government besides imposition of penalty of Rs.50,000/- agaisnt the vehicle owner /3rd respondent in lieu of its confiscation. The Tahsildar, Paderu shall remit the confiscated value of the seized HSD in compartment No.1 to the 1456-CS Head of Account immediately and furnish original challan to the Court for record.

PDJ Court, Vsp, 2Crl. Appeal Nos.25 & 26 of 2018

As the 4000 ltrs of HSD available in compartment No.1 of the tanker lorry is found to be adulterated in the laboratory analysis it cannot be sold and it shall be destroyed by the Tahsildar, Paderu under cover of mediators report and furnish a report to the Court for record. The 3rd respondent and vehicle owner shall remit the penalty amount within 10 days from the date of receipt of the Order and get his vehicle released. If the 3rd respondent fails to remit the penalty amount within the time stipulated, the Tahsildar Paderu shall take action for public auction of the tanker lorry and made good the penalty amount from the higher bid amount and return the balance amount if any to the 3rd respondent under proper acknowledgment.

Whether confirmed, Reversed or modifiedIn the result, both the appeals are partly allowed, modifying the order of the learned JointCollectordated30.12.2017in C.C.No.17/2016 CSR-5, by reducing the confiscation of the seized stocks to 25% from 100% in favour of the Government. The remaining seized stock of the appellant/1st respondent shall be released subject to remittance of 25% of variation stock or value of the variation stock by the appellant/1st respondent to the government under the relevant head of account. In so far as imposition of penalty of Rs.50,000/- against the appellant/3rd respondent is concerned, it is decreased to Rs.10,000/- (Rupees ten thousand only) and the seized vehicle shall be released subject to payment of the modified fine amount.

Date of or on which presentation20.02.2018.

Date of filing20.02.2018.

Notice issued by court to appear01.03.2018

Bail bonds, if the appellants haveDoes not arise been let out on bail 3 PDJ Court, Vsp, Crl. Appeal Nos.25 & 26 of 2018

Appellant ordered to appear:03.04.2018

Date of hearing:03.04.2018

Date of judgment:09.04.2018

This appeal has come up before me on 03.04.2018 for final hearing and disposal in the presence of Sri M.K.Sitaramayya, M.S.Venkatesh, M.K.Srinivas, learned counsel for the appellant and of Sri P.S.Naidu, learned Public Prosecutor for the respondent/ State; and having heard the matter on both sides and the matter is coming up for consideration to this day, this Court delivered the following:

C O M M O N J U D G M E N T

1. Criminal Appeal No.25 of 2018.

This Criminal Appeal has been preferred by the appellant/3rd respondent Under Section 6(C) of the Essential Commodities Act,1955 against the Order dated 30.12.2017 passed by the Joint Collector,

Visakhapatnam U/s.6(A) (1) of the EC Act in CC.No.17/2016-CSR-5, by

Ordered confiscation of 100% of seized unauthorized HSD available in compartment No.2 of the Tanker lorry bearing Regn.No.AP37 V 9675 in favour of the Government besides imposition of penalty of Rs.50,000/- agaisnt the vehicle owner/3rd respondent in lieu of its confiscation, challenging the validity and correctness of the impugned Order.

2. Criminal Appeal No.26 of 2018.

This Criminal Appeal has been preferred by the appellant/1st respondent Under Section 6(C) of the Essential Commodities Act,1955 against the Order dated 30.12.2017 passed by the Joint Collector,

Visakhapatnam U/s.6(A) (1) of the EC Act in CC.No.17/2016-CSR-5, ordering destruction of 4000 ltrs., of HSD available in compartment

No.1 of the tanker lorry as it was found to be adulterated in the laboratory analysis, it cannot be sold, directing the Tahsildar, Paderu 4 PDJ Court, Vsp, Crl. Appeal Nos.25 & 26 of 2018 under cover of mediators report to implement the order and furnish a report, challenging the validity and correctness of the impugned Order.

3.For the sake of convenience the parties will be referred to as they are arrayed before the Lower Court. The appellant in Crl.A.No.25/2018 herein is the 3rd respondent, the appellant in Crl.A.No.26/2018 herein is the 1st respondent, and the respondent herein is the complainant

before the Lower Court.

4.Since both the appeals preferred against one order passed by the learned Joint Collector, this Court is of the considered view that a common order would suffice to meet the ends of justice.

5.The case of the complainant, in brief, is that the Assistant Supply

Officer, Paderu Division, Visakhapatnam District, on receipt of information from the Sub-Inspector of Police, Paderu that one oil tanker

No.AP37 V 9675 seized under the presumption that the vehicle unauthorisedly transporting the diesel and handed over at MRO’s office, Paderu, on 03.05.2016 he along with his staff conducted enquiry at MRO’s office, Paderu. On enquiry, the 1st respondent is carrying business in the name and style of Anantha Lakshi Petrol Bunk at Padmanabham and also doing road contract works with partners in

Paderu division. He purchased High Speed Diesel (HSD) in the name of four contractors each 2000 ltrs., @ 53.00 ps., from his own bunk vide cash/credit bills dt.03.05.2016 and transporting bulk quantity through lorry AP37 V 9675 and the diesel was unloaded in four places where road works are going on.

(a) On enquiry, the driver of the tanker lorry (i.e., 2nd respondent) stated that he is a temporary driver and produced cash bills and other 5 PDJ Court, Vsp, Crl. Appeal Nos.25 & 26 of 2018 supported papers given by petrol bunk owner and after conducting enquiry, it was established that the owner of bunk owner 1st respondent, transporting huge quantitites of petroleum products i.e., 8000 ltrs., of HSD for road works which is contrary to AP Petroleum

Products (Licensing & Regulation of supplies) Order, 1980 under cl.23,25,26(1) and The Motor Spirit and High Speed Diesel (Regulation of Supply, distribution and prevention of Malpractices) Orders, 2005 under Cl.3(6) and 3(7).

(b) Therefore, the inspecting officials seized 8000 ltrs., of HSD along with Tanker lorry under the cover of mediators and handed over the seized stock and lorry to Indian Oil Corporation Bunk Sri Shantisri

Service station, paderu for safe custody until further orders, duly taking samples of HSD from the Tanker lorry for laboratory analysis. After conducting tests, the Joint Director, Telangana State Forensic Science

Laboratory, Hyderabad has given report dt.22.12.2016 and opined that the Item No.1 and 2 HSD oil are substandard. Further the owner of the tanker lorry failed to obtain Form-F license for carrying the petroleum products.

Particulars of stocks seized and its value:

Sl.No.CommodityQuantity Estimated value in Rs.

1.High Speed Diesel Oil (HSD 8000 ltrs. @4,24,880-00 Oil) Rs.53.11 ps.

2.Tanker Lorry No.AP 37 V 14,00,000-00 9675 (Ashok Leyland make 1999) Total 8,24,880-00

6.Basing on the report lodged by the Assistant Supply Officer,

Paderu Division, Visakhapatnam District, proceedings under Section 6-

A(1) of the Essential Commodities Act, 1955 were initiated and the 6 PDJ Court, Vsp, Crl. Appeal Nos.25 & 26 of 2018 learned Joint collector has formulated the following charges against the respondents by issuing Show cause notice calling for their explanation:

Charge No.1: That the 1st respondent has indulged in selling huge quantity of petroleum product i.e., 8000 ltrs., of HSD on 03.05.2016 from his retail out-let of Sri Anantha Laxmi Enterprises of IOCL,

Padmanabham Village and Mandal vide cash/credit bills and transported to Paderu through AP37V 9675 for unloading the same at four places where road works are going on in contravention of provisions under Cl.23(1)(2) of the AP Petroleum Products (Licensing & Regulation of Supplies) Order, 1980.

Charge No.2: That the 1 st respondent has supplied and transported 4000 ltrs., adulterated HSD through compartment No.1 of the Tanker lorry No.AP37V 9675 on 03.05.2016 without Invoice in contravention of provisions under cl.25 and 26(1) of AP Petroleum Products (Licensing & Regulation of Supplies) Order, 1980. and U/s.3 (6) and 7 of the Motor Spirit and High Speed Diesel (Regulation of supply, distribution and prevention of Malpractices) Orders, 2005 with the active connivance of the 2 nd and 3 rd respondents,.

Charge No.3:That the 3 rd respondent being the owner of the Tanker lorry AP 37V9675 has failed to obtain registration certificate in Form-

F for transportation of petroleum products through his vehicle in contravention of provisions under cl.8(1)(2) of the AP Petroleum

Products (Licensing & Regulation of Supplies) Order, 1980.

Charge No.4: That the 2 nd and 3 rd respondents have abetted the activities of the 1 st respondent.

Charge No.5: By contravening the above the respondents are punishable under section 7 of the EC Act, 1955.

7.In the explanation submitted by the respondent, both the respondents denied all the charges and requested the Lower Authority to drop the proceedings.

7 PDJ Court, Vsp, Crl. Appeal Nos.25 & 26 of 2018

8.After receipt of the explanation from the respondents, notice was issued to them for their appearance and after hearing the respondents and upon considering the material on record, the learned Joint

Collector, passed Orders dt.30.12.2017, Ordered confiscation of 100% of seized unauthorized HSD available in compartment No.2 of the

Tanker lorry bearing Regn.No.AP37 V 9675 in favour of the Government besides imposition of penalty of Rs.50,000/- agaisnt the vehicle owner / 3rd respondent in lieu of its confiscation. The Tahsildar, Paderu shall remit the confiscated value of the seized HSD in compartment No.1 to the 1456-CS Head of Account immediately and furnish original challan to the Court for record. As the 4000 ltrs of HSD available in compartment No.1 of the tanker lorry is found to be adulterated in the laboratory analysis it cannot be sold and it shall be destroyed by the

Tahsildar, Paderu under cover of mediators report and furnish a report to the Court for record.

9.Aggrieved by the said order, the 1st and 3rd respondents, who are the appellants in Crl.A.No.26/2018 and Crl.A.No.25/2018 respectively, have come-up with these appeals, contending that the Order of learned

Joint Collector by confiscating 100% of the seized stock of 8000 ltrs.,

HSD oil relating to the 1st appellant and imposing penalty of Rs.50,000/- on the 3rd respondent by the learned Joint Collector contrary to law, weight of evidence and probabilities of the case. The learned Joint

Collector failed to consider that the 1st appellant had sold HSD oil under valid bills for unloading the same at four places as per the document

dt. 02.05.2016 seized by the inspecting authority. The analysis report

has not indicated nor opined the presence of any foreign substance in the sample so analyzed. The 1st respondent/appellant never supplied 8 PDJ Court, Vsp, Crl. Appeal Nos.25 & 26 of 2018 adulterated HSD as alleged by the inspecting authorities and the charge is not supported by any material and contents of the mediator’s report. The learned Joint Collector has not assigned any specific reasons for ordering for confiscation of 100% of 8000 lrs., of HSD is not in accordance with law.

The charges leveled against the 3rd respondent/appellant is incorrect as the appellant is having valid Form-F and there is no contravention of any control orders. As per G.O.Ms.No.17 dt.21.11.2016 F&CS, the Government has made it clear that renewal of

Form-F shall not be required and it is not mandatory. The learned Joint collector without assigning any reasons, imposed penalty of Rs.50,000/- is unjust and against the law. Thus, both the appellants requested the

Court to set aside the order of the learned Joint Collector,

Visakhapatnam by allowing the appeal.

10.On the other hand, the learned Public prosecutor appearing for the State, in toto supported the orders of the District Collector.

11.Heard both sides.

12.Now, the point that would arise for determination is:

Whether the impugned Order of learned Joint Collector, Visakhapatnam is sustainable on facts and law and whether any interference is warranted by this Court while sitting in the appeal ?

13. POINT : -

It is the main grievance of the appellant/1st respondent in

Crl.A.No.26/2018 that he sold HSD under valid bills for unloading the

same at four places where road works are going on and the inspecting officials also verified the said fact in the relevant records which were 9 PDJ Court, Vsp, Crl. Appeal Nos.25 & 26 of 2018 seized by them. The stock was purchased bonafidely by him under valid document dt.02.05.2016 from the Oil Company for road works and the allegation that the material was adulterated is denied. The analysis report has not indicated nor opined the presence of any foreign substance in the sample so analyzed. Whereas the gamut of the contention of the 3rd respondent/appellant in Crl.A.No.25/2018 is that he is not concerned with the charges 1 and 2. So far as the charge not holding Form-F License for transporting HSD oil is concerned, this respondent is having valid Form-F and as the diesel oil is sold under valid bills, the appellant/3rd respondent accepted for transporting of diesel oil for hire. They never abetted the activities of 1st respondent in any way. Due to financial problems, the appellant/respondent could nto furnish any bank guarantee and the vehicle lost its road worthiness and as per the G.O.Ms.No.17, it was made clear that renewal of Form-F shall not be required.

14.As seen from the impugned order of the leaned Joint Collector, it was observed that the 1st respondent has indulged in selling huge quantity of petroleum products of 8000 ltrs., from his retail out-let and transported to paderu on 03.05.2016 through tanker bearing No.AP37V 9675 for unloading at four places at paderu without any supply card. It was further observed that when the samples were sent to laboratory, it was found that they are adulterated. Though it was alleged that Item

No.2 is conforming to HSD as per the relevant Bureau of Indian (BIS)

Standard specifications and the Item NO.1 is not confirming to HSD with respect to density, distillation and Kinematic, viscosity on finding of the observations, no analysis report is produced to corroborate the said finding.

10 PDJ Court, Vsp, Crl. Appeal Nos.25 & 26 of 2018

15.Here it is pertinent to note that clause (g) of Section 2 of The

Andhra Pradesh Petroleum Products (Licensing & Regulation of

Supplies) Order, 1980, defines ‘ dealer’ :

Dealer’ means a person engaged in the business of purchase, or storage, sale or storage for sale of the petroleum products and includes his representative, agent and servants or any other person acting on his behalf and also hawker but does not include an Oil company’.

As seen from the record, there is no dispute about the fact that the appellant/1st respondent is an authorized Indian Oil Corporation

Dealer and he has been selling the HSD oil under valid bills and invoices. Though it was stated that the seized samples were sent to laboratory analysis, the Joint Director TSFSL, Hyderabad, sent a report dt.22.12.2016, opining that the samples sent for analysis were substandard, no analysis report find place in the record and there is no basis to come to a conclusion that item No.2 is not confirming to HSD with the specifications as required under law. So, there is no whisper in the order of the learned Joint Collector that the quality of petroleum products sold by a dealer without any invoices or bills. It is apparent on record that the seized stock is totally covered by valid bills.

16.Further as seen from the impugned order of the leaned Joint

Collector, it would reveal that the 3rd respondent/owner of the oil tanker had no Form-F license to transport the HSD oil. It is main contention of the appellant/3rd respondent that as the oil was sold by the 1st respondent under valid bills, the 3rd respondent accepted for transportation of diesel on hire. The allegation that this appellant/3rd respondent abetted the activities of 1st respondent is absolutely false 11 PDJ Court, Vsp, Crl. Appeal Nos.25 & 26 of 2018 and it does not arise. Due to financial problems, the appellant/3rd respondent could not furnish any bank guarantee and the imposition of penalty is very huge. Further, the government made it clear that renewal of Form-F shall not be required.

17.The learned counsel for the appellants submit that the learned

Joint Collector imposed heavy fine against the 3rd respondent and there is no rule enabling the learned Joint Collector to impose such huge fine and considering the socio-economic status of the appellant/3rd respondent and the facts and circumstances of the case, sought to decrease the fine amount.

18.As seen from the material on record as well as the order of the learned Joint Collector, no corroborative evidence or piece of document is produced to buttress the contention that the appellant/1st respondent has supplied petroleum products without bills and selling substandard products and the appellant/3rd respondent failed to obtain

Form-F for transportation of the petroleum products through the tanker in question. So, it is manifest from the aforesaid premises, though there is no patent irregularity or illegality in the Orders of the Joint collector, considering the facts and circumstances of the case, confiscation of 100% of the seized stock is excessive and thus, this

Court feels that it is just and reasonable to reduce the confiscation of stocks to 25% instead of 100% as imposed by the learned Joint

Collector. In so far as the imposing of penalty of Rs.50,000/- as against the 3rd respondent/appellant is concerned, this Court is of the considered view that it should be decreased to Rs.10,000/-(Rupees ten thousand), to meet the ends of justice. Thus, this point is answered accordingly.

12 PDJ Court, Vsp, Crl. Appeal Nos.25 & 26 of 2018

14.In the result, both the appeals are partly allowed, modifying the order of the learned Joint Collector dated 30.12.2017 in C.C.No.17/2016

CSR-5, by reducing the confiscation of the seized stocks to 25% from 100% in favour of the Government. The remaining seized stock of the appellant/1st respondent shall be released subject to remittance of 25% of variation stock or value of the variation stock by the appellant/1st respondent to the government under the relevant head of account. In so far as imposition of penalty of Rs.50,000/- against the appellant/3rd respondent is concerned, it is decreased to Rs.10,000/- (Rupees ten thousand only) and the seized vehicle shall be released subject to payment of the modified fine amount.

Dictated to the Stenographer Gr-I, transcribed by him, corrected and

pronounced by me in open court on this the 09 th April, 2018.

Sd/-P.V.Jyothirmai

APPELLATE AUTHORITY–cum-

PRINCIPAL DISTRICT & SESSIONS JUDGE

VISAKHAPATNAM

Copies to:

1. The Registrar (Judl.,) High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh.

2. The Joint Collector, Visakhapatnam along with entire record in CC No.17/2016-CSR5, dt.30.12.2017. ----- ///T.C.B.O.///

CHIEF ADMINISTRATIVE OFFICER

DISTRICT COURT, VISAKHAPATNAM

1 PDSJ Court, Vsp

Crl.A.No.38/2018

BEFORE THE APPELLATE AUTHORITY – CUM –

THE PRINCIPAL DISTRICT & SESSIONS JUDGE: VISAKHAPATNAM

Present: Smt.P.V.Jyothirmai

Appellate Authority-cum-

Principal District & Sessions Judge,

Tuesday, the 10 th day of April, 2018.

CRIMINAL APPEAL No.38/2018.

From what Court the Appeal isBefore the Court of Joint Collector, Visakhapatnam. preferred.

Number of the case in that CourtSR No.159/2014-CSC1, dated 04.02.2017.

Number of the appealCrl.A.No.38/2018.

Name of the appellant/ appellantsP.Jagannadha Rao, Hindu, aged 50 years, Dealer of FP Shop No.31, Dondaparthy Area, Circle-II, Visakhapatnam City.

Name of the respondentThe State represented by the Public Prosecutor, Visakhapatnam. (The Assistant supply Officer, Circle-II, Visakhapatnam City).

Sentence and law under which it wasOrdered for confiscation of 100% of the seized stock imposed in the Lower court.in favour of the Government. The seized vehicle i.e., Mahendra Jenio NO.AP 31 TB 3212 was released on Bank Guarantee for Rs.40,000/- equivalent to the value of goods seized for Rs.39,000/-. Taking into lenient view fine imposed with a penalty of Rs.4,000/- in view of the confiscation of the vehicle i.e., Mahendra Jenio No.AP 31 TB 3212 to Government under section 6(A) of the EC Act, 1955.

Whether confirmed, Reversed orIn the result, the appeal is allowed-in-part, modifying modifiedthe Order in SR.No.159/2014-CSC-1 dt.04.02.2017 by the Joint Collector, Visakhapatnam, by confiscating 30% of the variation stock or value of the variation stock from the appellant FP Shop after deducting the allowable variations in conformity with Clause No.24 of A.P.S.P.D.S. (Control) Orders, 2008. The remaining seized stock shall be released subject to remittance of 30% on the variation stock or value of the variation stock by the appellant to the government under the relevant head of account.

Date of or on which presentation16.03.2018.

Date of filing16.03.2018

Notice issued by court to appear28.03.2019

Bail bonds, if the appellants have beenDoes not arise let out on bail

Appellant ordered to appear04.04.2018.

Date of hearing04.04.2018

Date of judgment10.04.2018.

2 PDSJ Court, Vsp

Crl.A.No.38/2018

This appeal has come up before me on 04.04.2018 for final hearing and disposal in the presence of Sri M.K.Sitaramayya, M.S.Venkatesh, M.K.Srinivas, learned counsel for the appellant and of Sri P.S.Naidu, learned Public Prosecutor for the respondent/ State; and upon perusing the proceedings and upon hearing both sides and after duly considering the same, this Court delivered the following:

J U D G M E N T

1. This Criminal Appeal has been preferred by the appellant/ 1st respondent

Under Section 6(C) of the Essential Commodities Act,1955 against the Order

dated 04.02.2017 passed by the Joint Collector, Visakhapatnam U/s.6(A) (1) of

the EC Act in SR.No.159/2014-CSC-1, in so far as confiscation of 100% of seized stock in favour of the Government is concerned, challenging the validity and correctness of the impugned Order.

2.For the sake of convenience the parties will be referred to as they are arrayed before the Lower Court. The appellant herein is the 1st respondent and the respondent herein is the complainant before the Lower Court.

3.The case of the complainant in brief is that (a) on receipt of reliable information about storage of PDS commodities unauthorizedly at the FP Shop

No.31 at Lalithanagar, and diverting the PDS commodities into black market, on 29.05.2014 the Assistant Supply Officer, Circle-II, along with other inspecting officials and mediators, inspected the FP Shop of 1st respondent and found four persons in the shop who are exchanging rice from FCI stencilled bags to plastic bags by loading into goods vehicle No.AP31 TB 3212. On enquiry, who is standing in the FP shop stated that as the original dealer of FP

Shop physically handicapped person, requested him to look after the business on his behalf and the allotment of stock of essential commodities orders for the month of June, 2014 were not yet received. The Inspecting officials verified the stock available in the FP Shop and found the following variations:

Excess quantity : of 94.12 Qntls., of PDS rice.

(b) The Inspection officials alleged that when enquired with one of the persons who are loading the rice bags, i.e., 2nd respondent stated that he came to an agreement with Borra Jagannadham, prop,. Kirana shop at Nathavalasa village of Vizayanagaram District to sell PDS rice and in that process of delivering the rice he engaged four khalisis at Poorna market. The inspection officials found 67 bags of rice from FCI Jute gunnies transferred to plastic bags, out of 67 3 PDSJ Court, Vsp

Crl.A.No.38/2018

bags, 39 plastic bags are loaded in the vehicle and the remaining 28 plastic bags still available in the FP Shop along with other FCI marked jute bags.

(c) The inspection officials further alleged that on enquiry with the owner of the vehicle i.e., 3rd respondent, he stated that the 2nd respondent contacted him to arrange vehicle to transport the rice bags from the FP Shop to Nathavalasa village. Therefore, the 1st respondent dealer has indulged in doing business with PDS Rice clandestinely by storing the same in his premises and diverting

PDS stock into black market, thereby violated clause 17(a)(b), 17(A) and 19 of the A.P.State Public Distribution System (Control) Order, 2008 r/w.2(1)(a) of the Annexure to the said control order and also violated condition Nos.6,10,12 and 14 of the authorization. Hence, the Asst. Supply Officer, seized the following stock under the cover of mediator’s report and handed over to

Smt.B.Kalavathi, FP Shop dealer No.31, Dondaparthi area, Visakhapatnam and seized the Van No.AP31 TB 3212 handed over to the Station House officer, 4th

Town PS, Visakhapatnam for safe custody.

Particulars of stock seized:

Quantity of Value of the Sl.No. Name of the Commodity stocks seized (Kgs) stock(Rs.)

1. PDS Rice (FCI Stensilled bags) 123 @ 50 kgs., 6150-00 61.50 Qtls.

2.PDS Rice (In Plastic Bags) 67 @ 50 kgs., 3350-00 33.50 Qtls.

3.Empty Jute Gunny bags67 @ Rs.11.00737-00

4.Empty Plastic bags 210-00

5.Stitching machine 1200-00 Total 10,447-00

6.Mahendra Juno Van AP31TB 321213,00,000-00 Total Value of seized stock and vehicle 3,10,447-00

4.Basing on the report of the complainant, the learned Joint Collector has taken the case on file U/s. 6-A of Essential Commodities Act and issued Show

Cause notice to the appellant U/s.6-B(1) of Essential Commodities Act,1955 and framed the charges against the 1st respondent that the 1st respondent has contravened the provisions under Clause 17(a) and (b), 17(A), 19 of the AP

State Public Distribution System (Control), Order R/w.paragraph 2 (1)(a) of the

Annexure, to the control order and condition Nos.6,10,12 and 14 of

Authorization issued to him with the active connivance of the 2nd and 3rd respondents, who abetted the 1st respondent.

4 PDSJ Court, Vsp

Crl.A.No.38/2018

5.The appellant/ 1st respondent filed his explanation to the show-cause notice issued by the Joint Collector, denying the averments made therein denying all the charges levelled against him and requested the Lower

Authority to drop the proceedings.

6.After hearing both sides and on perusal of the material on record, the learned Joint Collector found the 1st respondent contravened the provisions of

AP State Public Distribution System(Control) Orders, 2008 and ordered for confiscation of 100% of the seized stocks in favour of the Government U/s.6A of the EC Act.

7. Aggrieved by the impugned order of the Joint Collector the appellant preferred the present appeal contending that the order for confiscation of 100% of stock seized from the appellant is contrary to law, weight of evidence and probabilities of the case. The learned Joint Collector has not given any cogent reasons for ordering 100% of the seized stock from the FP Shop of the appellant except mentioning that the appellant is conducting the business in violation of the control orders. The learned Joint Collector failed to consider that the importing stock does not belongs to the appellant. The order of confiscation of 100% of the seized stock is quite erroneous and not based on any logical conclusions. The contents of the mediator’s report are not reflecting true and correct facts. The appellant has not violated any of the conditions of control orders. The appellant is under suspension for no fault of him for the last three and half years which is more than any other punishment.

The learned Joint Collector has not complied the provisions of clause 24 of

APPDS Order, 2008 and erroneously gave findings for confiscation of entire seized stock. The learned Joint collector failed to notice that the monthly allotment to the FP Shop of appellant is 44.28 qtls., and he cannot store 94.12 qtls. Of rice and the appellant is running the FP Shop for the last two decades without any remark and he being a physically handicaped person, taking assistance of a clerk for better and proper distribution of commodities. The appellant is concerned only 88 kgs., of rice and 3 kgs., of sugar which is available in the shop at the time of inspection. There is no variation in the shop and he never violated any of the control orders and conditions of the 5 PDSJ Court, Vsp

Crl.A.No.38/2018

authorization and requested the Court to allow the appeal by setting aside the impugned Order of the Joint Collector and sought for release of the entire seized stock.

8.On the other hand, the learned Public Prosecutor supported the Order of the learned Joint Collector and sought for dismissal of the Appeal.

9. Heard both the Counsel. Perused the material on record.

10. Now the point that would emerge for determination is :

Whether the impugned Order of learned Joint Collector, Visakhapatnam is sustainable on facts and law and whether any interference is warranted by this Court while sitting in the appeal ?

11.P O I N T:

There is no dispute that on 29.05.2017 the Assistant Supply Officer,

Circle-II along with inspecting officials inspected the Fair Price shop of the appellant and verified the records and the stock available and found variation in book balance and ground stock and seized entire stocks available under the cover of mediators report and handed over the same to one of the FP Shop

Dealers for safe custody.

12.The main grievance of the appellant in the present case is that there is no violation of APSPDS (Control) Order, 2008. There is no complaint from the card holders to the effect that the stock was not delivered to them. The appellant has been maintaining the records and distributing the essential commodities to the card-holders as per their entitlement. The appellant is not concerned with the stock of rice said to be seized in the vehicle as well as the vehicle and other items and he is only concerned with 88 kgs., of rice and 3 kgs., of sugar which is available in his FP Shop at the time of inspection. The charge of initiating action U/s.7 of EC Act, is different and distinct from action

U/s.6-A of EC Act and thus, requesting the Court to allow the appeal by setting aside the Order of the lower authority.

13. As seen from the Order of the learned Joint Collector, it was observed that the appellant/ 1st respondent dealer conducting business in violation to the authorization condition and thus, ordered for confiscation of 100% stock seized. The learned counsel for the appellant would submit that the appellant is nothing to do with the alleged stock available in the vehicle at the time of 6 PDSJ Court, Vsp

Crl.A.No.38/2018

inspection and they are only concerned with 88 kgs., of rice and 3 kgs., of rice available in the shop which is in accordance with the registers. So, confiscation of 100% seized stock is not justifiable. Further, the inspection was conducted in the month of May, 2017 and the appellant has not received the alllotted stock of that month and hence, the alleged variation found by the inspection official is incorrect and thus, prays to allow the appeal. Per contra, the learned Public Prosecutor submitted that the mediator’s report is very clear to the point that the appellant was in possession of extra-stock for doing business in black market. So, the confiscation of 100% of seized stock is just and reasonable.

14.A perusal of the impugned order shows that there are no complaints against the appellant from the card holders Be that as it may, if there is any irregularities found, the confiscation of entire stock cannot be ordered, which can only be ordered in respect of the variable stock after allowing the allowable variation as per clause 24 of Andhra Pradesh State Public

Distribution System ( Control) Order, 2008.In view of the sub-clause (i) of clause 24 of A.P. State Public Distribution System (Control) Order, 2008, this

Court is of the opinion that the seizure of the stock should be in accordance with the said clause.

15.In the case betwee “Chilukuri Balaji Groundnut decortication Mill,

Anakapalli Visakhapatnam Vs. State of Andhra Pradesh and another 1

the Hon'ble High Court of A.P. Held as follows :

“Confiscation can be ordered in respect of the variation portion of the seized stock alone. The petitioner is not liable to offer explanation in respect of the quantity of stocks, which is found in accordance with the accounts. He is liable for not accounting for the variation portion of the stock. Consequently, confiscation can be ordered only in respect of the value of the variation portion of the stock.”

16. The facts of the above decision is squarely applicable to the facts of the present case. Therefore, seizure of entire stock and confiscation can only be ordered in respect of the variable stock after allowing the allowable variation as per clause 24 of Andhra Pradesh State Public Distribution System ( Control)

Order, 2008, which reads as follows :

12013 (2) ALD (Crl.) 545 (A.P.).

7 PDSJ Court, Vsp

Crl.A.No.38/2018

“No prosecution shall be launched in certain types of mistakes/ lapses /omission/ irregularities indicated below ( which are illustrative and not exhaustive) against the FP shop dealers, nominated retailers/ Hawkers. However, administrative section can be initiated under Essential Commodities Act, 1955. In case these mistakes/ lapses/ omissions/ irregularities are found to be repetitive and there are reasons to believe that they are deliberate, appropriate action including launching of prosecution may be considered at the discretion of the competent authority.

(i) minor variation in respect of single commodity upto 1.5% may be allowed taking into consideration of transactions of one month.”

(ii) mistake in mathematical totaling, clerical and accounting errors in the maintenance of prescribed registers.

In view of the above said sub-clause (i) of clause 24 of A.P. State Public

Distribution System (Control) Order, 2008, this Court is of the opinion that the seizure of the stock should be in accordance with the above said clause.

17.Be that as it may, as already discussed supra, the confiscation has to be done after deducting the allowable variation and the remaining unexplained stock which is in variation shall be confiscated. As seen from the record, nothing has been done in compliance of the provisions of control Order.

Further no corroborative evidence or piece of document is produced to buttress the contention that the appellant indulged in committing irregularities in maintenance of accounts of FP Shop properly and diverted the

PDS stocks into black market in contravention for the provisions under AP.State

Public Distribution System (Control) Order, 2008. There is no occasion to complain against appellant from the cardholders of FP Shop regarding conducting of business and distribution of commodities against the prescribed procedure and in violation of A.P.S.Public Distribution System (Control) Order, 2008.

18.Considering the facts and circumstances of the case, as there is no record to show that the appellant herein found to be repetitive and faced any case earlier, the seizure of entire stock is not justifiable and its confiscation of 100% of stock in which variations found can be decreased and in that view of the matter, interference of this Court is very much warranted in the present case. Accordingly, the point is answered in favour of the appellant.

19.In the result, the appeal is allowed-in-part, modifying the Order in

SR.No.159/2014-CSC-1 dt.04.02.2017 by the Joint Collector, Visakhapatnam, by confiscating 30% of the variation stock or value of the variation stock from the appellant FP Shop after deducting the allowable variations in conformity with 8 PDSJ Court, Vsp

Crl.A.No.38/2018

Clause No.24 of A.P.S.P.D.S. (Control) Orders, 2008. The remaining seized stock shall be released subject to remittance of 30% on the variation stock or value of the variation stock by the appellant to the government under the relevant head of account.

Typed to my dictation by the Stenographer Gr-I, corrected and pronounced by me in open Court, this the 10 th day of April, 2018.

Sd/-P.V.Jyothirmai

APPELLATE AUTHORITY–cum-

PRINCIPAL DISTRICT & SESSIONS JUDGE

VISAKHAPATNAM

Copies to:

1. The Registrar (Judl.,) High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh.

2. The Joint Collector, Visakhapatnam along with entire record in SR No.159/2014-CSC1, dt.04.02.2017. ----- ///C.T.B.O.///

CHIEF ADMINISTRATIVE OFFICER

DISTRICT COURT, VISAKHAPATNAM

PDSJ Court, Vsp. Crl. Appeal No.34/2018.

BEFORE THE APPELLATE AUTHORITY – CUM –

THE PRINCIPAL DISTRICT & SESSIONS JUDGE: VISAKHAPATNAM

Present: Smt.P.V.Jyothirmai

Appellate Authority-cum-

Principal District & Sessions Judge,

Monday, the 09 th day of April, 2018.

CRIMINAL APPEAL No.34 /2018.

From what Court the Appeal isBefore the Court of Joint Collector, Visakhapatnam. preferred.

Number of the case in that CourtCC.No.23/2017 CSR-5, dated 27.01.2018.

Number of the appealCrl.A.No.34/2018.

Name of the appellant/ appellantsSmt.Reddi Manga, W/o. Satyanarayana, Hindu, aged 50 years, Permanent FP Shop Dealer No.0307016, Thimiram village and Incharge FP Shop dealer to FP Shop No.0307029, Kaligotla Village of Devarapalli Mandal, Visakhapatnam District.

Name of the respondentThe State represented by the Public Prosecutor, Visakhapatnam. (The Dy. Tahsildar(CS),K.KotapaduMandal, Visakhapatnam ).

Sentence and law under which it wasOrder for confiscation of 100% of the seized stock imposed in the Lower court.in which variations were found in favour of the Government. The Tahsildar, Devarapalli is directed to remit the value of confiscated amount into Govt. Account i.e., 1456-Civil supplies head of Account immediately and furnish original challan to this Court for record. The RDO Anakapalli shall take action for changing of the 1st respondent from Incharge dealership to the FP No.0307029 and keep another eligible dealer to this FP Shop as Incharge dealer immediately.

Whether confirmed, Reversed orIn the result, the appeal is allowed in-part, modifiedmodifying the Order in CC.No.23/2017-CSR-5 dt.27.01.2018 by the Joint Collector, Visakhapatnam, by confiscating 30% of the variation stock or value of the variation stock in both the permanent FP Shop No.0307016 and Incharge FP Shop No.0307029 after deducting the allowable variations in conformitywithClauseNo.24of A.P.S.P.D.S.Control Orders, 2008. The remaining seized stock in both the FP Shops, shall be released subject to remittance of 30% of variation stock or value of the variation stock by the appellant to the government under the relevant head of account.

Date of or on which presentation08.03.2018.

Date of filing08.03.2018.

Notice issued by court to appear20.03.2018

Bail bonds, if the appellants haveDoes not arise been let out on bail 2 PDJ Court, Vsp, Crl. Appeal No.34/2018

Appellant ordered to appear:03.04.2018

Date of hearing:03.04.2018

Date of judgment:09.04.2018

This appeal has come up before me on 03.04.2018 for final hearing and disposal in the presence of Sri M.K.Sitaramayya, M.S.Venkatesh, M.K.Srinivas, learned counsel for the appellant and of Sri P.S.Naidu, learned Public Prosecutor for the respondent/ State; and having heard the matter on both sides and the matter is coming up for consideration to this day, this Court delivered the following:

J U D G M E N T

1. This Criminal Appeal has been preferred by the appellant Under

Section 6(C) of the Essential Commodities Act,1955 against the Order

dated 27.01.2018 passed by the Joint Collector, Visakhapatnam U/s.6(A)

(1) of the EC Act in CC.No.55/2015-CSR-5, by confiscating 100% of stock seized in which variations are found from both the Fair Price Shops to the

Government, challenging the validity and correctness of the impugned

Order.

2.For the sake of convenience the parties will be referred to as they are arrayed before the Lower Court. The appellant herein is the 1st respondent and the respondent herein is the complainant before the Lower

Court.

3.The case of the complainant in brief is that on receipt of reliable information that the dealer of FP Shop No.0307016 and in-charge dealer to

FP Shop No.0307029 at Kaligotla village, Devarapalli, is not conducting the business properly and not issuing essential commodities to the cardholders, on 08.06.2017 the Dy.Tahsildar (CS) K.Kotapadu along with

Vigilance and Enforcement officials inspected the Fair Price shop of the respondent and found that the clerk of the respondent transacting the business. On verification of records and registers, physical stock available at the time of inspection with the closing balance as per the records, they found the following variations in FP Shop No. 0307016:

Lesser quantity of 145 kgs., of PDS, MDM Rice.

3 PDJ Court, Vsp, Crl. Appeal No.34/2018

(b) Thereafter the inspection officials found that the respondent was kept

Incharge to the FP shop No.0307029 at Koligotla village, Devarapalli village and found the following variations:

Lesser quantity of 1425 kgs., of PDS Rice, 42.500 kgs., of Sugar and 133 liters of Kerosene.

The inspecting officials having found that the permanent dealer of FP Shop and also being Incharge Dealer is indulging in doing clandestine trade for illegal profit and also not maintaining true and correct accounts of the business with an intention to divert the stock to black market in violation of

APSPDS Control order, they seized the available stock of FP Shop

No.0307016 and Incharge FP Shop No.0307029 in the presence of mediators under the cover of mediators report and handed over to sreenadhu Venkata Rao, FP Shop No.0307028 Boilakinthada village,

Devarapalli for safe custody.

(c) When enquired about the variations in the stocks in the FP Shop

No. 16, the appellant did not give proper reasons for variations. Therefore, the Inspecting authority found that the respondent/appellant dealer of FP

Shop No.16 and 29 conducting business operation in violation of Clause 17(a)(b)(c), 22(viii) of APSPDS control Order, 2008 and seized entire available stock under the cover of mediators report are as follows:

(a) Stocks seized at FP Shop No.0307016 of Thimiram village. Quantity of Seized value Sl.No. Name of the Commodity stocks seized in kgs. (In Rupees)

1.PDS Rice1719 1719-00

2.MDM Rice 81 Free of cost Total 1719-00

(b) Stocks seized at FP Shop No.0307029 Kaligotla village. Quantity of Seized value Sl.No. Name of the Commodity stocks seized in kgs. (In Rupees)

1.PDS Rice1259 1259.00

2.MDM rice 241Free of cost

3.Sugar 3 40.50

4.K.Oil5 liters 95.00 Total 1,395.00 4 PDJ Court, Vsp, Crl. Appeal No.34/2018

4.Basing on the report of the complainant, the learned Joint Collector has taken the case on file U/s. 6-A of Essential Commodities Act and issued

Show Cause notice to the appellant U/s.6-B(1) of Essential Commodities

Act,1955 and framed the following charges :

Charge No.1 :That the respondent of FP Shop No.0307016 of Thimiram village and Incharge FP shop dealer No.0307029 of Kaligotla village, Devarapalli Mandal, is not maintaining true and correct accounts of the business transactions and also the variations in the stocks shows that the dealer without issuing in the ECs to the Cardholders is accumulating the stocks with an intention to divert the same to black market at a later date. When the complainant along with Vigilance and Enforcement Officials inspected the FP Shop No.0307016 and Incharge FP Shop No.0307029 on 08.06.2017 found the following variations:

In FP Shop No.0307016 : Lesser quantity of 145 kgs., of PDS, MDM Rice. In FP Shop No.0307029: Lesser quantity of 1425 kgs., of PDS Rice, 42.500 kgs., of Sugar and 133 liters of Kerosene.

The detection of variations in stocks shows that the respondent dealer has indulged in committing irregularities in maintenance of her FP Shop by making fictitious entries and not maintaining true and correct accounts thereby contravened provisions under Clause 22(viii) and 17(a)(b)(c) of the APSPDS(Control)Order, 2008.

Charge No.2: By contravening the above the respondent is punishable under section 7 of the EC Act, 1955.

5. The appellant herein did not file her explanation to the show cause notice issued by the Joint Collector.

6.After hearing both sides and on perusal of the material on record, the learned Joint Collector found the respondent guilty of contravention of provisions of AP State Public Distribution System(Control) Orders, 2008 and ordered for confiscation of entire stocks seized in the permanent FP Shop as well as in the Incharge FP Shop, in favour of the Government U/s. 6A of the EC Act.

7. Aggrieved by the impugned order of the Joint Collector the appellant preferred the present appeal, contending that the order of the Joint

Collector is contrary to law, weight of evidence and probabilities of the case. The learned Joint Collector ought to have release entire stock instead of confiscating 100% seized stock from the FP Shop of appellant. The learned Joint Collector has not taken into consideration of the mediators 5 PDJ Court, Vsp, Crl. Appeal No.34/2018 report which does not reflecting the true and correct facts and the confiscation is to be in consonance with the alleged variation found the stock, which is not explained in the Order. There is no variation in the stock alleged to be found lesser in the FP Shop of appellant. The Appellant is distributing the commodities to the Cardholders as per their entitlement in accordance with the government norms without any remark for the last 20 years and considering the antecedents of the appellant, he was kept

Incharge of the FP Shop No.0307029. The authorities noted down random figures without conducting weighment of physically available stock and for that reason only the particulars of weighment, no of bags, weight of each bag are not noted in the mediators report. The appellant has not violated any of the provisions of APSPDS(control) Order, 2008 and requested the

Court to allow the appeal by setting aside the impugned Order of the Joint

Collector and sought for release of the entire seized stock.

8.On the other hand, the learned Public Prosecutor supported the

Order of the learned Joint Collector and sought for dismissal of the Appeal.

9. Heard both the Counsel. Perused the material on record.

10. Now the point that would emerge for determination is :

Whether the impugned Order of learned Joint Collector, Visakhapatnam is sustainable on facts and law and whether any interference is warranted by this Court while sitting in the appeal ?

11.POINT:

There is no dispute that on 08.06.2017 the Deputy Tahsildar (Civil

Supplies), K.Kotapaud along with other inspecting officials, intercepted the

FP Shop of respondent/appellant and also the Incharge FP Shop, verified the records and stocks available in both the shops, found variation of stock between book balance and ground stock in Shop No.0307016 and Incharge

FP Shop No.0307029 and seized entire stocks available in both the shops under the cover of mediators report and handed over the same to one of the FP Shop Dealer for safe custody.

6 PDJ Court, Vsp, Crl. Appeal No.34/2018

12.The main grievance of the appellant in the present case is that the

Inspecting authorities have not conducted the process of weighment of available stock and not considered the physical available stock in both the

FP Shops, for the reason that no particulars of weighment are mentioned in the mediator’s report dt.08.06.2017, if such procedure is followed, number of bags, weighment of each bag are described and there is no violation of APSPDS (Control) Order, 2008. The Inspecting officers only relying on random figures without verifying the stock properly have arrived the variation, the variations found are not correct.

13.As can be seen from the Order of the learned Joint Collector would go to show that the respondent has failed to maintain the records and as such, there is variation of lesser quantity of 145 kgs., PDS rice in FP Shop

No.0307016 and 1425 kgs., of Rice, 42.5 kgs., of sugar and 5 liters of kerosone in FP Shp No.0307029 and the variations are beyond permissible limits. Further, a perusal of the impugned order, would go to show that minor variations were found only in the permanent FP Shop of the appellant No.0307016 i.e., lesser quantity of 62 (145-83) kgs., of PDS Rice.

So, after deducting the allowable variation from the variation stock, if any quantity found excess or lesser, then only proportionate portion of the stock shall be ordered for confiscation to the State but not entire seized stock.

14.The learned Public prosecutor would submit that the authorities after deducting the allowable variations of the stock, ordered confiscation as the appellant could not give proper explanation for the remaining variations and confiscation of entire seized stock is correct.

15.In a case between “Chilukuri Balaji Groundnut decortication

Mill, Anakapalli Visakhapatnam Vs. State of Andhra Pradesh and

another 1 the Hon'ble High Court of A.P. Held as follows :

“ Confiscation can be ordered in respect of the variation portion of the seized stock alone. The petitioner is not liable to 12013 (2) ALD (Crl.) 545 (A.P.).

7 PDJ Court, Vsp, Crl. Appeal No.34/2018 offer explanation in respect of the quantity of stocks, which is found in accordance with the accounts. He is liable for not accounting for the variation portion of the stock. Consequently, confiscation can be ordered only in respect of the value of the variation portion of the stock.”

16. The facts of the above decisions are squarely applicable to the facts of the present case. Therefore, confiscation of entire stock cannot be ordered, which can only be ordered in respect of the variable stock after allowing the allowable variation as per clause 24 of Andhra Pradesh State

Public Distribution System ( Control) Order, 2008, which reads as follows :

“No prosecution shall be launched in certain types of mistakes/ lapses /omission/ irregularities indicated below ( which are illustrative and not exhaustive) against the FP shop dealers, nominated retailers/ Hawkers. However, administrative section can be initiated under Essential Commodities Act, 1955. In case these mistakes/ lapses/ omissions/ irregularities are found to be repetitive and there are reasons to believe that they are deliberate, appropriate action including launching of prosecution may be considered at the discretion of the competent authority.

(i) minor variation in respect of single commodity upto 1.5% may be allowed taking into consideration of transactions of one month.”

(ii) mistake in mathematical totaling, clerical and accounting errors in the maintenance of prescribed registers.

In view of the above said sub-clause (i) of clause 24 of A.P. State

Public Distribution System (Control) Order, 2008, this Court is of the opinion that the seizure of the stock should be in accordance with the above said clause. If such is the case, the variation found after allowing the permissible variation in the permanent FP Shop No.0307016 comes to 62 kgs., of PDS Rice, whereas in so far as Incharge FP Shop

No. 0307029 is concerned, it comes to 1287 kgs., (1425-138) of

PDS Rice, 128 liters (133-5) in kerosene. A perusal of the Order of the lower Authority would go to show that though the exercise was made in compliance of Cl.24 of the APSPDS (Control) Order, 2008, the authorities without deducting the permissible limits of variation, ordered for 8 PDJ Court, Vsp, Crl. Appeal No.34/2018 confiscation of entire stock in both the FP Shops. Therefore, the Order of the learned Joint Collector is unsustainable in so far as ordering confiscation of 100% of seized stock in which variations found is concerned. With regard to the change of Incharge dealership to the 1st respondent with another eligible dealer, it is the discretion of the appointing authority in accordance with the procedure as contemplated under law.

17.As seen from the material on record as well as the order of the learned Joint Collector, no corroborative evidence or piece of document is produced to buttress the contention that the appellant diverting the essential commodities into open market without actually issuing to the cardholders registered in the shop. As the Civil supplies authorities satisfied with the maintenance of both the FP shops by the respondent since many years and she has been successfully maintaining the FP shops without any complaint either from the card holders or public. There is no occasion to complain against appellant from the cardholders of respective

FP Shops regarding conducting of business in violation of A.P.S.Public

Distribution System (Control) Order, 2008.

18.Considering the facts and circumstances of the case, as there is no record to show that the appellant herein faced any case earlier, confiscation of entire seized stock is not justifiable. Accordingly, the point is answered in favour of the appellant.

19. In the result, the appeal is allowed in-part, modifying the Order in

CC.No.23/2017-CSR-5 dt.27.01.2018 by the Joint Collector, Visakhapatnam,

by confiscating 30% of the variation stock or value of the variation stock in both the permanent FP Shop No.0307016 and Incharge FP Shop

No.0307029 after deducting the allowable variations in conformity with

Clause No.24 of A.P.S.P.D.S.Control Orders, 2008. The remaining seized 9 PDJ Court, Vsp, Crl. Appeal No.34/2018 stock in both the FP Shops, shall be released subject to remittance of 30% of variation stock or value of the variation stock by the appellant to the government under the relevant head of account.

Typed to my dictation by the Stenographer Gr-I, corrected and pronounced by me in open Court, this the 09 th day of April, 2018.

Sd/-.P.V.Jyothirmai

APPELLATE AUTHORITY–cum-

PRINCIPAL DISTRICT & SESSIONS JUDGE

VISAKHAPATNAM

Copies to:

1. The Registrar (Judl.,) High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh.

2. The Joint Collector, Visakhapatnam along with entire record in CC No.23/2017-CSR5, dt.27.01.2018. ----- ///TRUE COPY//

APPELLATE AUTHORITY–cum-

PRINCIPAL DISTRICT & SESSIONS JUDGE

VISAKHAPATNAM