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IN THE COURT OF THE VI ADDITIONAL JUDICIAL MAGISTRATE OF FIRST
CLASS :: GUNTUR
Present :: Sri. Syed Ziyauddin, I Additional Junior Civil Judge, Guntur FAC VI Additionnal Judicial Magistrate of I Class, Guntur
Thursday, this the 04th day of August, 2022.
CALENDAR CASE No.3721 of 2019
Between : State: SubInspector of Police, Pedakakani P.S., Guntur District. … Complainant
And
1. Allibilli Satyavathi w/o Late Narayana Rao, 45 years, Kapu, Winchipet, near Chuttala company, Kondameeda, Vijayawada.
2. Kesireddi Chandra Rao @ Abbairaju, s/o Rattaiah, 30 years, Kapu, Akiveedu village, Undi Mandal, West Godavari District.
3. Gandikota Naveen s/o Rama Swamy, 21 years, Uppara Deenadayal Nagar, Chinakakani, Mangalagiri mandal, Guntur District. Now residing at Eamani village, Duggirala Mandal, Guntur District. Driver of auto bearing No: AP 07
TM 6890.........Accused
This case has come up before me for final hearing on 29.07.2022 in the presence of learned Asst. Public Prosecutor for the complainant and of Sri. P.V. Anjaneyulu, advocate for the Accused and the matter having stood over for consideration till this day, the court delivered the following:
J U D G M E N T
01. The SubInspector of Police, Pedakakani P.S., Guntur District filed charge sheet against the accused in Cr.No:234/2019 for the offences punishable under
Section 420 of Indian Penal Code (herein after referred as IPC) and section 7 of
Essential Commodities Act, 1955 ( herein after referred as EC Act).
The case of the prosecution is that:
02. A1 and A2 hatched up a plan to purchase PDS rice from the ration card holders for lesser price and for selling the same for more price by cheating the people and Government. Accordingly, A1 and A2 purchased PDS rice which was distributed by the Government to the ration card holders for Rs.10/ per kg. and engaged auto bearing registration No: AP 07 TM 6890 of A3 to transport the same in the said auto to sell to the owners of fish ponds at Rs.15/ per kg. On 05.07.2019 at about 04.30 P.M. LW6/Smt. J. Anuradha, WSI of police, received about the said information. Then she alongwith mediators, LW4/G. Satyanarayana,
LW5/K. Mahesk Kumar, her staff LW1/Pogarthi Yanadi, PC 4110, LW2/Bokka
Koteswara Rao, PC 4166, LW3/G. Nagamani Kumar, HG 391 proceeded to
Gollamudi Tank Bund, Gollamudi village and apprehended A1 to A3 and seized 21 2 bags of PDS rice weighing about 7 quintals under the cover of mediatornama.
03. Basing on mediatornama dated 05.07.2019 LW6/J. Anuradha, WSI of Police, registered a case in Cr.No:234/2019 under sections 420 IPC and section 7 of EC Act.
She examined LW1/Pogarthi Yanadi, PC 4110, LW2/Bokka Koteswara Rao, PC 4166, LW3/G. Nagamani Kumar, HG 391 and recorded their statements. She has visited the scene of offence and prepared rough sketch of the scene of offence and sent A1 to A3 for Judicial Remand. She handedover the seized rice to the Deputy
Tahasildar, Civil Supplies. After completion of investigation, LW6/J. Anuradha, WSI of police, laid the charge sheet. Hence, the charge.
04. In this case one of my learned predecessors taken cognizance for the offences punishable under section 420 IPC and sections 7(1) of EC Act. against A1 to A3.
05. On appearance of A1 to A3 copies of documents were furnished to them as contemplated under section 207 of Cr.P.C.. The accused were examined under section 239 Cr.P.C., for the substance of allegations leveled against them by explaining the contents of charge sheet in Telugu for which they denied and on that charges under section u/s 420 IPC and section 7(1) of EC Act, were framed against A1 to A3 and explained the same in Telugu for which they pleaded not guilty and claimed to be tried.
06.During the course of trial, to prove this case, the prosecution examined Pws 1 to 3 and got marked Ex.P1 to Ex.P4. The learned A.P.P. has given up LW2/B.
Koteswara Rao, PC 4166, LW3/G. Nagamani Kumar, HG 391, LW4/Gummadi
Satyanarayana.
07.After closure of the prosecution evidence, the accused were examined under section 313 Cr.P.C. for the incriminating material appearing against them in the prosecution evidence by explaining the same in vernacular for which they denied the same and stated that they have no defense evidence on their behalf.
08.Heard both sides and perused the material on record.
09. Now the point for determination is:
Whether the prosecution proved the guilt of Accused No:1 to 3 for the offences charged under sections 420 IPC and sections 7(1) of EC Act beyond reasonable doubt?
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POINT:
10. It is the case of the prosecution that A1 and A2 purchased PDS rice from white ration card holders for Rs.10/ per kg. with a view to sell the same for higher price for wrongful gain by transporting the same in auto of A3.. On knowing the same PW3 alongwith her staff PW1, LW2/B. Koteswara Rao, PC 4166, LW3/G.
Nagamani Kumar, HG 391, and mediators PW2 and LW4/Gummadi Satyanarayana proceeded to Gollamudi Tank Bund and there apprehended A1 to A3 and seized 21 bags of PDS rice weighing about 7 quintals alongwith auto bearing registration
No:AP 07 TM 6890 under the cover of mediatornama dated 05.07.2019. She has handedover the PDS rice to the Deputy Tahasildar, Civil Supplies, under Ex.P4 acknowledgment. After completion of investigation, PW3 filed the charge sheet.
11. In this case PW1 in his evidence stated that PW3 received information with regard to the illegal transportation of PDS rice and she secured the presence of mediators PW2 and LW4/G. Satyanarayana, and proceeded to Gollamudi Tank Bund and there found A1 to A3, seized 21 bags of PDS rice alongwith auto in the presence of mediators under the cover of Ex.P1 mediatornama. In his cross examination he stated that the alleged mediatornama was prepared by sitting in the police zeep and copied in the pen drive and obtained print of the same through LW3.
PW3 never wighed the alleged rice bags.
12. PW2 who alleged to be acted as mediator in his evidence stated that he,
LW4/Satyanarayana acted as mediators in this case. On 05.07.2019 he alongwith
PW3 and staff, PW1, LW2/B. Koteswara Rao, PC 4166, LW3/G. Nagamani Kumar, HG 391 proceeded to Gollamudi Tank Bund and found A1 to A3 and seized 21 bags of
PDS rice alongwith auto bearing registration No: AP 07 TM 6890 and arrested them in his presence under the cover of mediatornama. In his cross examination he stated that there are shops and residential houses in between the places at which they were present and the police station. He admitted that he is one of the accused in case relating to Pedakakani P.S., which is pending before Railway court. All the rice bags are plastic rice bags.
13. PW3 Investigation Officer in her evidence stated that on 05.07.2019 at about 4.30 P.M. she received information she received information with regard to the illegal transportation of PDS rice and secured the presence of mediators and staff and proceeded to Gollamudi Tank Bund and found A1 to A3 and seized 21 bags of 4
PDS rice weighing about 7 quintals alongwith auto under the cover of Ex.P1. She brought A1 to A3 and seizures to the police station and registered Ex.P2 FIR in
Cr.No:234/2019 under section 420 IPC and section 7 of EC Act and sent the accused for Judicial Remand. He secured the presence of PW1 and LW2/B. Koteswara Rao, PC 4166, LW3/G. Nagamani Kumar, HG 391 examined them and recorded their statements and visited the scene of offence and prepared Ex.P4 rough sketch. She also handedover the seized rice to the Deputy Tahasildar, Civil Supplies under Ex.P4 acknowledgement. After completion of investigation, she filed the charge sheet. In her cross examination she admitted that the alleged scene of offence is busy locality.
She prepared Ex.P1 in her personal laptop. She has taken print copy of Ex.P1 at the police station and obtained the signatures of mediators in the police station.
14. In the light of the above evidence unraveled from the testimony of PW1 to
PW3, now I move on to appreciate the evidence of the said witnesses, before going to that, I feel it appropriate to have a glance on the penal provisions of charges levelled against the accused.
Section 420 IPC and section 7(1) of EC Act, 1955 reads as follows:
Sec.420 of IPC : Cheating and dishonestly inducing delivery of property.— Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Sec. 7 of Essential Commodities Act, 1955 (1) If any person contravenes any order made under section 3,—
(a) he shall be punishable,—
(i) in the case of an order made with reference to clause (h) or clause (i) of sub section (2) of that section, with imprisonment for a term which may extend to one year and shall also be liable to fine, and
(ii) in the case of any other order, with imprisonment for a term which shall not be less than three months but which may extend to seven years and shall also be liable to fine: Provided that the court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than three months;
(b) any property in respect of which the order has been contravened shall be forfeited to the Government;
(c) any package, covering or receptacle in which the property is found and any animal, vehicle, vessel or other conveyance used in carrying the commodity shall, if the court so orders, be forfeited to the Government. (2) If any person to whom a direction is given under clause (b) of subsection (4) of section 3 fails to comply with the direction, he shall be punishable with imprisonment for a term which shall not be less than three months but which may extend to seven 5 years and shall also be liable to fine:Provided that the court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than three months. (2A) If any person convicted of an offence under subclause (ii) of clause (a) of sub section (1) or under subsection (2) is again convicted of an offence under the same provision, he shall be punishable with imprisonment for the second and for every subsequent offence for a term which shall not be less than six months but which may extend to seven years and shall also be liable to fine:Provided that the court may, for any adequate and special reasons to be mentioned in the judgment impose a sentence of imprisonment for a term of less than six months. (2B) For the purposes of subsections (1), (2) and (2A), the fact that an offence under subclause (ii) of clause (a) of subsection (1) or under subsection (2) has caused no substantial harm to the general public or to any individual, shall be an adequate and special reason for awarding a sentence of imprisonment for a term of less than three months, or six months, as the case may be. (3) Where a person having been convicted of an offence under subsection (1) is again convicted of an offence under that subsection for contravention of an order in respect of an essential commodity, the court by which such person is convicted shall, in addition to any penalty which may be imposed on him under that subsection, by order, direct that that person shall not carry on any business in that essential commodity for such period, not being less than six months, as may be specified by the court in the order. '
15. The learned A.P.P. for prosecution argued that the prosecution examined PW1 to PW3 and got exhibited Ex.P1 to Ex.P4 documents were marked on behalf of the prosecution case and proved it's case and requested the court to convict the accused according to law.
16. The learned defense counsel argued that the prosecution failed to prove the guilt of the accused beyond reasonable doubt and requested the court to acquit the accused.
17. On perusal of the Ex.P1 mediatornama reveals that on 05.07.2019 at about 04.30 P.M. PW3 received information about illegal transportation of PDS rice she proceeded alongwith mediators and staff and arrested A1 to A3 and seized 21 bags of PDS rice weighing about 7 quintals alongwith auto bearing registration No: AP 07
TM 6890 and recorded confession of A1 to A3 in which they stated A1 and A2 purchased PDS rice from the white ration card holders for lesser price and engaged auto to transport the same and to sell for higher price and while doing so, the police caught hold of the said rice. On the confession of A1 to A3 the said rice was seized from the possession of the accused under the cover of mediatornama in the presence of PW2 and another and later the said rice was handedover to the Revenue officials under proper acknowledgement.
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18. When coming to the evidence of PW1 who is the Police constable, and who said to have been participated in the alleged raid stated in his cross examination that the alleged scene of offence situated at Gollamudi Tank Bund and the police conducted vehicular checking at that place.
19. PW2 who acted as mediator in this case admitted in his cross examination that there were several shops and residential houses near the alleged scene of offence.
20. In this regard PW3 who is the Investigation Officer who investigated the case she stated in her evidence that the scene of offence is busy locality.
21. Thus, it is clear from the evidence of PW3/Investigation Officer and
PW1/Police Constable who participated in the raid that though the scene of offence is busy locality having shops and residential houses and having presence of public at the time of alleged seizure they did not invite from the public to act as mediator for the seizure of the said rice from the auto as contemplated by the provisions of section 100(4) Cr.P.C..
22. There is no whisper in the evidence of PW1/Police Constable and
PW3/Investigation officer that they enquired the ownership particulars of said auto from which the alleged seizure of rice was made. Hence, there is no evidence or material document to show that A3 is the owner of the said auto from which the suspected rice was seized.
23. ` Further more their evidence is silent with regard to the lifting of samples from the rice bags and sending the same to the technical analyst to confirm that the said rice seized from the possession of A1 to A3 was PDS rice and collected from the ration card holders. Moreover PW3 in her evidence stated that she obtained signatures of mediators on Ex.P1 in the police station. This evidence of PW3 creates a doubt over the case of the prosecution.
24. The first and foremost ingredient that is to be proved by the prosecution for the offence under section 7(1) of EC Act is that the suspected rice seized from the possession of A1 is PDS rice meant for distribution to the people of below poverty line. But, no steps taken by the Investigation Agency to prove the suspected rice said to have been seized from the possession of the accused is PDS rice.
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25. The only step taken by the Investigation agency is that securing the presence of mediators and confirming that the said rice was PDS rice. In this regard, PW3/SI of police admitted that except the confession of A1 to A3, there is no proof to say that the alleged rice is PDS rice. There is nothing forthcoming either from the evidence of Investigation Officer/PW3 or from the mediator/PW2, Mahesh Kumar that how they came to opinion that the alleged rice is PDS rice. They even did not divulge the material particulars of how and in what process they distinguished the said rice is PDS rice and and PW3 being the Investigation Officer failed to distinguishing the said rice is PDS rice and confirm the same as PDS rice with the help of Civil Supplies Department people.
26. There is scientific method lying with quality control department of FCI to distinguish the general market rice and subsidy rice but the prosecution has failed to obtain report from the quality control department of FCI to show that the seized rice was PDS rice.
27. When the rice is Commodity easily available in the open market for price, just because the accused No:1 to 3 having possession of 21 bags of PDS rice does not attract the charge under section 7(1) of EC Act unless it is proved that the suspected rice is PDS rice which is distinguishable from the general market price.
28. Here, the prosecution miserably failed to establish that the suspected rice said to have been seized from the possession of the accused is PDS rice nor collected samples from the rice bags nor send the same to the quality control analyst of Food
Corporation of India or Technical analyst of District Supply Department.
29. In such circumstances, it cannot be said that the A1 to A3 who are having in possession of PDS rice and illicitly transporting the same for selling it for higher price for wrongful gain. The Investigation Agency did not enquire any ration card holder from whom accused purchased the said rice for selling the same at higher price dishonestly and fraudulently.
30. In such circumstances, it cannot be said that the accused have committed the offence of cheating by diverting the PDS rice to the open market to sell the same to the customers at higher price for wrongful gain.
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31. At this juncture, I would like to quote a decision reported in 2016(2) ALD
(crl.) 684 in a case between Maimuna Begum Vs. State of Telangana and others
wherein it was held;
“ A careful reading of the above reproduced Clause shows that the same is
attracted if a fair price shop dealer or cardholders or any person causes
interruption or interfere with the smooth distribution of scheduled commodities
under the public distribution system or other Government schemes at any level
right from the Food Corporation of India godowns to the fair price shop point,
till the scheduled commodity reaches the intended beneficiary. From the
unequivocal plan language of this provision, it is clear that it gets attracted
when there is interruption of food grains from the stage of FCI godown till it
reaches the end beneficiary ie., cardholders. The provision does not
comprehend any activity relating to any commodity falling under the Control
Order, 2008 once it reaches the card holder. There is no grounds of detention
that any of the deternus is interrupting the smooth functioning of the scheduled
commodities from the FCI godowns point till it reaches intended beneficiary. On
the contrary, the whole allegation against the detenus is that they have been
purchasing the PDS rice from the cardholders. Therefore, this activity of the
deternus completely falls outside Clause 17(A) of the Control Order, 2008. Once
there is no prohibition on such activity either under the 1995 Act or under the
Control Order, 2008 which undisputedly is the only Order that governs
distribution and control rice meant for public distribution system, the deternus
cannot be accused of committing any offence. As the respondents failed to show
that the deternus have contravened the provisions of any other Control Order
framed under Section 3 of the 1995 Act, the alleged activities of the deternus are not liable for any penal action. Once their activities do not constitute an offence
under law, their preventive detention under the provisions of the 1980 Act
cannot be sustained.” .
.From the above decision it is clear that when once the rice was reached to the ration card holders and later it was collected that from the ration card holders it cannot be said that it was controversial under section 3&5 of EC Act and thereby the accused have committed the offence under section 7(1) of EC Act.
32. The APTPDS control Order, 2016 at large discussed the schedule mentioned committee after it reaches the beneficiaries even if found to have issued under the public distribution system is found in the hands of persons who are no way connected with the Public Distribution System, if it is also not found that the essential commodities had been negative from the point of issue by the Government till it reaches the hands of the beneficiaries, but a suspicion to the fact that the said essential commodities have been found in the hands of the 3rd parties after it has reached into the hands of the beneficiaries, no liability or contravention can be attributed to the said essential commodity and as such the person in whose possession it was allegedly found.
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33. Any such movement of such essential commodities after it has reached the hands of the beneficiaries would not be amounted for any violation of the said order.
Thus, no offence of what so ever can be attributed to the said acts.
34. Further here in this case, except mere allegation that the said rice said to have been seized from the possession of the accused No:1 to A3 is suspected to be public distribution system rice, no evidence has been put forth by the Investigation agency to show that the said rice belongs to PDS rice and the movement of rice has been diverted by the accused from the point of issue by the Government till it reaches beneficiaries. The only allegation that was revealed against the accusd is that A1 and A2 collected the said rice from the beneficiaries of PDS rice system i.e.,
Ration Card Holders and transporting in the auto of A3 for the purpose of selling the same at higher price. Thus, as discussed above and in view of the decision referred and APTPDS, 2016 the act of the accused even if it is assumed that they collected the rice from the ration card holders and going to sell the same for higher price, it does not come under the purview of section 7(1) of EC Act to attract charge.
Moreover, the Investigation agency even did not examine any ration card holders from whom the accused said to have been procured the rice nor the customer or any one to whom he sell the same at higher price.
35. Thus, it failed to establish the offence under section 7(1) of the EC Act, mere possession of rice is not enough to constitute the offence. The prosecution has further to show that the said rice which was seized from the possession of the accused belongs to PDS rice and they diverted the same from the issuance by the
Government before it reaches to the beneficiaries for the purpose of wrongful gain.
Admittedly, the said rice was kept in the white plastic bags even as per the contents of Ex.P1 mediatornama and no gunny bags provided by the Food
Corporation of India or the seals of District Civil Supplies Department or AP State
Civil Supplies corporation was found on the said bags and further more no steps taken by the Investigating officer by drawing the samples and send the same to Civil
Supply Department in order to ascertain whether the said rice belongs to PDS rice or not. Therefore, the single isolate act of having possession of 21 bags of PDS rice bags would not make a person liable for the offence under section 7(1) of EC Act unless it is established that the said rice is PDS rice and meant for poor and before reaching the beneficiaries it has been diverted by the Accused.
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36. Therefore, in view of the above discussion, viewed from any angle the prosecution failed to establish the charges for the offences punishable under section 420 IPC and section 7(1) of EC Act against Accused No:1 to A3 beyond reasonable doubt.
37. In the result, A1 to A3 are found not guilty for the offences punishable u/sec.420 IPC and sections 7(1) of EC Act and they are acquitted u/sec.248(1)
Cr.P.C. The bail bonds of A1 to A3 shall be in force for 6 (six) months under section 437(A) of Cr.P.C., since no property is produced before this court as such no property order can be passed.
Dictated to the Stenographer, transcribed by him, corrected and pronounced
by me in open Court, this the 04th day of August, 2022.
I ADDL. JUNIOR CIVIL JUDGE,
FAC VI ADDL. JUDICIAL MAGISTRATE OF I CLASS,
GUNTUR
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For the Prosecution :For the Defence : P.W.1: Pogarthi Yanadi, PC 4110. P.W.2: Kommu Mahesh Kumar PW3: Smt. J. Anuradha, W SI of police.
EXHIBITS MARKED
For the Prosecution : Ex.P1 Mediatornama dated 05.07.2019 Ex.P2 FIR in Cr.No:234/2019 Ex.P3: Rough Sketch Ex.P4: acknowledgement. For the Defence : NIL.
I AJCJ/GNT. FAC VI AJFCM/GNT.
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FORM No.72
CALENDAR AND JUDGMENT
District of Guntur Calendar of cases tried by the VI Additional Judicial Magistrate of I Class, Guntur Judgment in Calendar Case No.3721 of 2019 Nature of Offence :: U/s.420 of Indian Penal Code and section 7 of EC Act Date of Judgment :: 04.08.2022 Report of ApprehenCommence Date of Release Closure Sentence or Offencecomplai sion of ment remandon bailof trialorder nantaccusedof trial 05.07.1905.07.1905.07.19 06.07.1912.07.1921.07.202227.07.2204.08.2022
Explanation for the delay: No delay Judgment in Calendar Case No.3721 of 2019 On the file of the VI Additional Judicial Magistrate of I Class, Guntur. Between State: SubInspector of Police, Pedakakani Police Station, … Complainant
And
Name of Father's AgeReligion Calling Residence Mandal accused name
1. Allibilli Satyavathi w/o Late Narayana Rao, 45 years, Kapu, Winchipet, near Chuttala company, Kondameeda, Vijayawada.
2. Kesireddi Chandra Rao @ Abbairaju, s/o Rattaiah, 30 years, Kapu, Akiveedu village, Undi Mandal, West Godavari District.
3. Gandikota Naveen s/o Rama Swamy, 21 years, Uppara Deenadayal Nagar, Chinakakani, Mangalagiri mandal, Guntur District. Now residing at Eamani village, Duggirala Mandal, Guntur District. Driver of auto bearing No: AP 07 TM 6890
FINDING: not guilty
IN THE RESULT, Accused No:1 to 3 are found not guilty for the offences punishable under Section 420 IPC and section 7(1) of EC Act and they are acquitted under section 248(1) Cr.P.C.. The bail bonds of A1 to A3 shall be force for a period of 6 ( six) months under section 437(A) of Code of Criminal Procedure. Since no property is produced before this court as such no property order can be passed.
I Additional Junior Civil Judge, FAC VI Additional Judicial Magistrate of
I Class, Guntur.