Veeravilli Kamesh Naga Venkateswararao Vs the State of A.P.

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APHC010130062009

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S

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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

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WEDNESDAY, THE THIRTEENTH DAY OF AUGUST TWO THOUSAND AND TWENTY FIVE

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PRESENT

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THE HONOURABLE SRI JUSTICE T MALLIKARJUNA RAO

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CRIMINAL REVISION CASE NO: 1829 OF 2009

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Revision filed under Sections 397 & 401 of Cr.P.C. aggrieved by the Judgment passed on dated 12.10.2009 in Crl.A.No.41 of 2009 on the file of the Court of the Principal District & Sessions Judge, Visakhapatnam cum Appellate Authority under the Essential Commodities Act, 1955.

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Between:

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Veeravilli Kamesh Naga Venkateswararao, S/o. Nageswararao, aged 34 years. Prop. Sri Veeravilli Rice Traders, D.No.20-41-5,^Jabbari Thota, Jalaripeta, Visakhapatnam.

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...Petitioner/Appellant/Respondent

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AND

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The State of Andhra Pradesh, Rep. by its Public Prosecutor, High Court of A.P., Hyderabad.

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...Respondent/Respondent/Complainant

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lA NO: 1 OF 2009 (CRLRCMP 2554 OF 2009)

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Petition fiied under Section 397 (1) of Cr.P.C., praying that in the circumstances stated in the affidavit fiied in support of the petition, the High

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ft'

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Court may be pleased to grant stay of all further proceedings pursuant to the Judgment made in Crl.A.No.41 of 2009 dated 12.10.2009 on the file of the Court of the Principal District & Sessions Judge, Visakhapatnam cum Appellate Authority under the Essential Commodities Act, 1955 preferred against the order in C.C.No.539 of 2008 CSR 5, dated 02.09.2009 on the file of the Collector Visakhapatnam pending disposal of^the above Criminal Revision Case.

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Counsel for the Petitioner: Sri T.S.B.V.Rama Reddy,^Advocate

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Counsel for the Respondent: The Public Prosecutor, High Court of A.P.

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The Court made the following order:

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,APHC010130062009

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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

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[3369]

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(Special Original Jurisdiction)

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WEDNESDAY, THE THIRTEENTH DAY OF AUGUST TWO THOUSAND AND TWENTY FIVE

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PRESENT

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THE HONOURABLE SRI JUSTICE T MALLIKARJUNA RAO

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CRIMINAL REVISION CASE NO: 1829/2009

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Between:

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1.VEERAVILLI KAMESH NAGA VENKATESWARARAO, S/0. NAGESWARARAO PROP. SRI VEERAVILLI RICE TRADERS D.NO.20-41-5, JABBARI THOTA, JALARIPETA, VISAKHAPATNAM.

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...PETITIONER

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AND

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THE STATE OF A.P., High Court of A.P., Hyderabad.

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...RESPONDENT

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Revision filed under Section 397/401 of CrPC praying that in the circumstances stated in the affidavit filed in support^{oftheCriminalRevision} Case, the High Court may be pleased to present this^Memorandum of Criminal Revision Case before this Hon'ble High Court against the Judgment made in Crl.A.No.41 of 2009 on the file of the Court of the Principal District & Sessions Judge, Visakhapatnam cum Appellate Authority^{undertheEssential} Commodities Act, 1955 dt. 12.10.2009 preferred' against the Order in C.C.No.539 of 2008 CSR 5, dated 02.09.2009

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lA NO: 1 OF 2009(CRLRCMP 2554 OF 2009

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Petition under Section 151 CPC praying that in the^{circumstancesstated} in the affidavit filed in support of the petition, the High Court may be pleased to grant a stay of all further proceedings pursuant to the Judgment made in

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Crl.A.No.41 of 2009 dt. 12.10.2009 on the file of the Court of the Principal' District & Sessions Judge, Visakhapatnam cum Appellate Authority under the Essential Commodities Act, 1955, preferred against^{theOrderinC.C.No.539} of 2008 CSR 5, dated 02.09.2009 on the file of the Collector, Visakhapatnam, pending disposal of the above criminal revision case.

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Counsel for the Petitioner:

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1.TS BVRAMA REDDY

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Counsel for the Respondent:

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1.PUBLIC PROSECUTOR

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The Court made the following ORDER:

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This Criminal Revision Case is filed against the Judgment dated 12.10.2009, passed in Criminal Appeal No.41 of 2009 by the learned District and Sessions Judge, Visakhapatnam (hereinafter referred to as 'the 1st Appellate Court'), whereby the 1®* Appellate Court partly allowed the appeal by . confirming the Order of the District Collector dated 02.09.2009, passed in C.C.No.539 of 2008, relating to confiscation; however, it modified the quantum of confiscation from 100% of the seized stock to 40% of the seized stock.

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The parties to this Criminal Revision Case will hereinafter^bereferredto as described before the District Magistrate, for the^{sakeofconvenience.}

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The brief averments of the case are that on 04.09.2008,^the District Supply Officer, Visakhapatnam (City), acting on credible^{informationabout} illegal hoarding, along with the Dy. Superintendent of Police, Vigilance and Enforcement Department, conducted a surprise inspection at Sri Veeravalli Traders, Jabbarithota, Visakhapatnam. The accused, proprietor, was found operating without a foodgrain licence, lacking bills, sales records, and stock • registers. A total of 2,794 bags (698.50 quintals)^{ofricewereseizedon-sitefor} being stored without authorization. The seized stock^was handed over to Swami Rice Traders for safe custody. A case was filed^{underSection6-Aof}

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1he Essential Commodities Act, 1955 in the Collector's Court, Visakhapatnam.

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Heard learned counsel appearing on both sides.

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In Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke & Anr\ it has been held by the Hon'ble Supreme Court as follows:

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Revisional power of the Court under Sections 397 to 401 of Cr.PC is not to be equated with that of an appeal. Unless the finding of the Court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction.

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As far as the scope of power of this Court while exercising revisionary jurisdiction under Section 397 is concerned, the Hon'ble Apex Court in Krishnan and another Versus Krishnaveni and another^,^{hasheldthatin} case Court notices that there is a failure of justice or misuse of judicial mechanism or procedure, sentence or Order is not correct, it is salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/incorrectness committed by inferior criminal Court in its judicial process or illegality or sentence or Order. The relevant para of the Judgment is reproduced as under: "8. The object of Section 483 and the purpose behind conferring the revisional power under Section 397 read with Section 401, upon the High Court is to invest continuous supervisory jurisdiction^soasto prevent miscarriage of justice or to correct irregularity of the procedure or to mete out justice. In addition, the inherent power of the High Court is preserved by Section 482. The power of the High Court, therefore, is very wide. However, the High Court must exercise such power sparingly and cautiously when the^Sessions Judge has simultaneously exercised revisional power^underSection 397(1). However, when the High Court notices that there^hasbeen

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^ 2015(3) SCC123 ^ (1997) 4 Supreme Court Case 241

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failure of justice or misuse of Judicial mechanism or procedure, sentence or Order Is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process or miscarriage^of justice or to correct irregularities/incorrectness committed by inferior criminal Court in its judicial process or illegality^ofsentence or Order."

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While exercising revisional jurisdiction, this Court is to examine the correctness, legality, and propriety of the judgment/order passed by the trial Court as well as the first appellate Court. This Court is not ordinarily required to re-examine and re-appreciate the evidence which is already appreciated by the trial Court and the appellate Court unless it is^{foundthatthereisdearnon} appreciation of the evidence already on record or appreciation^{ofinadmissible} evidence, or that finding has been recorded without any evidence on record. If there is evidence on record on the point of decision formulated by the Courts below for arriving at a conclusion of guilt, this Court is not required to enter into the records again to substitute its view in place of the view taken by the trial Court and the appellate Court.

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. 8. It is well-settled law that a revision court does not have the authority to overturn or interfere with the findings of fact made by the lower courts, except in cases where those findings are tainted by perversity or are manifestly erroneous. In other words, interference is only justified if the factual conclusions are irrational, unsupported by evidence, or clearly indicate a serious error in Judgment.

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Learned counsel for the petitioner submits that, despite recording favourable (findings in the petitioner's favour, the learned Sessions Judge erroneously directed confiscation of 40% of the seized stock, which was inconsistent with the observations made. 10. In support of the contention as mentioned earlier,^{learnedcounselfor}

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• the petitioner has relied upon the observation made by the learned Sessions Judge that there was no prior violation of the Control^{Order.Thelearned}

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Sessions Judge also points out that a new licensing regime was introduced pursuant to G.O.Ms.No.30 of 2008, issued by the Vigilance, Enforcement and Civil Supplies Department, and published in the Andhra Pradesh Gazette on 18.08.2008. It is an admitted fact that the inspection in question was conducted on 04.09.2008. The learned Sessions Judge further noted that the inspection took place within one month of the issuance of the said Government Order. He also observed that Clause (iv) of Section 3 of the G.O., clearly stipulates that a licence may be renewed if the application is submitted within one month from the date of expiry of its validity. 11. The petitioner contends that he had made all necessary preparations for obtaining or renewing the licence. Specifically, on 27.08.2008, he paid the challan for Rs.900/- in accordance with the revised Government Order, and on 01.09.2008, he obtained the requisite National Savings^{Certificateto} secure a licence under the amended A.P.Scheduled Commodities Dealers (Licensing, Storage and Regulation) Order, 2008. The learned Sessions Judge upheld this contention and, in paragraph No.6 of the Judgment,^{observedthatthe} documents filed before the District Collector, namely^the challan and the National Savings Certificate bond, clearly demonstrate.that the petitioner had made adequate preparations to obtain or renew the licence.

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It is evident that the new licensing system was introduced pursuant to • G.O.Ms.No.30 of 2008, published in the Andhra Pradesh Gazette on 18.08.2008. The material on record indicates that a licence could be renewed if the application was submitted within one month after the expiry of its validity period. The record further confirms that the petitioner applied for renewal of the licence within the permissible period from the date of issuance of the G.O. In view of the above, this Court is of the view that the charge against the petitioner for failing to obtain a licence from the licensing authority is unsustainable, particularly as the inspection took place within one month of the G.O.'s publication. Accordingly, and as rightly contended by the learned

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counsel for the petitioner, the learned Sessions Judge ought not to have ordered confiscation of 40% of the seized stock.

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On the other hand, the petitioner has placed reliance on the Judgment in Nathulal V. State of Madhya Pradesh^, wherein the Hon’ble Supreme Court held that;

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I have no doubt that an offence under Section 7 of the Essential Commodities Act, 10 of 1955 for breach of Section 3 of the Madhya Pradesh Foodgrains Dealers Licensing Order, 1958 necessarily involves a guilty mind as an ingredient of the offence. In terms. Section 3 of the Order, prohibits every person from carrying on business as a dealer except under and In accordance^withtheterms and conditions of a licence issued In that behalf by the Licensing authority. A dealer is defined by Section 2(a) of the Order as meaning a person engaged in the business of purchase, sale or storage for sale, of any one or more of the foodgrains^inquantityof one hundred maunds or more at any one time whether^onone'sown account or in partnership or in association with any other person or as a commission agent or arhatiya, and whether or notⁱⁿ conjunction with any other business. By Sub-section (8) of Section 3 a presumption is raised that "any person who stores any^foodgrainsin quantity of one hundred maunds or more at any one time^shall, unless the contrary is proved, be deemed to store the foodgrains for the purposes of sale." The Order prohibits every person from carrying on business as a dealer othenA/ise than in^{accordancewith} the terms and conditions of the licence, and a dealer is a person who carries on business of purchase, sale or storage for^saleoffood- grains in excess of the specified quantities. For the^{contraventionof} such a prohibition to be an offence, mens rea is necessary^condition. 14. This Court is of the view that the above principle is equally applicable in assessing the bona fides of the defence put forth by^{theconcernedtrader,} who applied for a licence by remitting the challan^{withinthestipulatedperiod.} Notably, even before the expiry of the one-month stipulated period, the authorities proceeded to inspect the premises and ordered^confiscation of 100% of the seized stock on the ground that a licence^{hadnotbeenobtained.}

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® MANU/SC/0384/1965

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Applying the principles laid down by the Hon’ble Supreme^Courtinthe decision as mentioned earlier, this Court is of the^{viewthattheactofthe} petitioner appears to be bona fide, for the reasons stated above. Consequently, the Order of 100% confiscation passed by the District Collector, as well as the Order of 40% confiscation passed by the learned Sessions Judge, as the case may be, are hereby declared^void.

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Apart from the above, in view of the categorical finding^ofthelearned Sessions Judge that there was no violation of the Control Order, the Order directing the confiscation of 40% of the seized stock^{standsvitiatedand} is legally unsustainable. At this juncture, it is appropriate to refer to the observations made by the composite High Court of Andhra Pradesh in Kyasa Narayana V. the State of A.P^, wherein it was held^that;

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8 What can be confiscated is the variation of the stock or the value thereof but not the entire stock that is found in the possession of the mill. However, in the present case,^thefactsand circumstances show that there was no violation of the Control Order, 2008. Consequently, the very Order of confiscation^of30%ofthe seized stock or 10% of the seized stock, as the case may be, is void. Accordingly, the Criminal Revision case is allowed.^{Theconfiscation} order of the learned Principal Sessions Judge, Karimnagar, is set aside. The petitioner is entitled to the entire seized^{stockorthevalue} thereof

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Upon analysis of both the oral and documentary evidence, it is evident that the appreciation thereof by the learned Sessions Judge and the learned District Collector was markedly superficial and unreasonable. As^such,the impugned Judgment, which has resulted in a miscarriage of justice, cannot be sustained in view of the settled principles of law^{discussedearlier.}

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In view of the foregoing discussion, the Criminal Revision case is allowed. The impugned Judgment in Crl.A.No.41 of 2009,^{dated12.10.2009,} passed by the learned District and Sessions Judge, Visakhapatnam, as well as the Order passed by the District Collector, Visakhapatnam, are hereby set .

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'' l/IANU/AP/0633/2013

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aside. The petitioner is entitled to the entire seized stock or, in the alternative,' to its value, and is consequently entitled to a refund of the amount, if any, deposited in lieu of the confiscation.

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Interim orders, if any, granted earlier shall stand vacated, and all pending miscellaneous petitions, if any, shall stand^closed.

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Sd/- M RAMESH BABU DEPUTY REGISTRAR

//TRUE COPY//

SECTION OFFICER

To,

The Principal District and Section Judge-cum-Appellate Authority under the Essential Commodities Act, 1955, Visakhapatnam, Visakhapatnam District, (with records if any)

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