Allowed

Kumbaro Suresh and 2 others v. The State of Telangana and another

Telangana HC13 Feb 2023CRLP/5709/2019

Case brief

AI extract

What is this about?

The High Court quashed criminal proceedings against the driver, owner, and purchaser of a lorry carrying seized PDS rice. The court held that mere transportation without evidence of diversion during distribution or prior knowledge of illegal intent does not trigger penal provisions for interrupting distribution or committing breach of trust or cheating.

What did the court decide?

The criminal petition is allowed and the proceedings in C.C.No.1703 of 2019 against the petitioners are quashed.

Kumbaro Suresh and 2 others Vs The State of Telangana… — Property and Title | Telangana HC (2023)

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HIGH COURT FOR THE^{STATE OF TELANGANA} AT HYDERABAD

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MONDAY,^{THE THIRTEENTH DAY OF FEBRUARY} TWO THOUSAND^{AND TWENTY THREE}

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PRESENT

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THE HON'BLE Dr. JUSTICE D.NAGARJUN

CRIMINAL

NO: 5709 OF 2019

Between:

Kumbaro Suresh, Sio Shiva Sharanappa^Aged 25^{years,occ.Driver of lorry} bearing No. KA 561450 R/o Masarakla^{village and Mandal DevaduggaThaluka of} Raichur District, Karnatka State

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Mohd. lqbal, S/o Moinuddin, aged 41^years, Occ.^{Owner oJ the Lorry bearing No.} KA561450 R/o Arabmohalla village of Raichur of Karnatak State

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Pole Surender, S/o Mallaiah, aged 41^years, Occ.^{Business R/o Kalwakurthy} Village and Mandl Nagarkumool District

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...pETrroNERlA8, A9 & Alo

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AND

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The State of Telangana, Rep.by its Public Prosecutor High Court ", ,11e;383*.r*,

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Yarlala Laxman Babu, S/o Ramulu Aged 39^years, Occ. Deputy Tahsildar Civil district Supply Department, Devarakonda R/ Suryapet village and Mandal, Nalgonda

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o=ro.r;sfiB?x,o*t^T,T Petition under Section 482 of Cr.P.C^praying that in the circumstances statedⁱⁿ the Memorandum of Grounds of Criminal Petition, the High Court^{may be pleasedto} Quash the Proceedings in C.C.No.1703 of²⁰¹⁹ on the file of^{JudicialFirstClass} Magistrate at Devarakonda, Nalgonda DistriCt against the^petitioners /Accused^{Nos. 8,} 9 and 10

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l.A. NO: 1 OF 2019

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Petition under Section 482 of Cr.P.C^praying that in the circumstances^{stated in} the Memorandum of Grounds of Criminal Petition, the^{High Court may be pleasedto} Stay of all and further^proceedings including appearance of the^{Petitioners/Accused} Nos. 8, 9 and 10 in C.C.No. 1703 of 2019 on the^{file of Judicial First Class Magistrate} at Devarakonda, Nalgonda District^pending disposal^{of the Criminal Petition}

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This Petition coming on for hearing, upon^perusing the^{Memorandum of Grounds} of Criminal Petition and upon hearing the arguments of^{Sri SOMAVARAPU} SATYANARAYANA,^Advocate for the Petitioners^and the^{Public Prosecutoron behalf} of the Respondent^No.1

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The Court made the following: ORDER

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HONOURABLE DR. JUSTICE D.NAGARJUN

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CRIMINAL PETITION No.57O9 of 2OL9

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ORDER:

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This petition is filed by A8 to A10 in C.C.No. L7O3 of 2Ol9 on the file of the Judicial First Class Magistrate at Devarakonda to quash the proceedings against them.

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The facts in lrrief, as per the charge sheet are as under:

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On 29.06-2018, at 2.00 p.ffi., the complainant/Deputy Tahsildar in Civil Supply department lodged a Telugu written complaint in Dindi Police Station that one Puladanda Baloji, the dealer of the fair price shop was purchasing PDS rice at low cost from the ration card holders of his village and from his neighbouring villages and stocked the rice in the house of Bojja Krishna Reddy in plastic bags. It is submitted that on 29.06.2018 at about 4.OO a.m. while the PDS rice is being loaded in a lorry bearing No.KA 56 1450, the Dindi Police apprehended the lorry and found 434 plastic bags of rice totaling to 200.8O quintals of PDS rice is being transported to other place.

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Basing on the complaint, Lw.lg registered a case in crime No.66 of 2018 for the offence under sections 406, 42o

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IPC and Section^{7 of t]ne Essential CommoditiesAct. During the} course of investigation,^{Lw.18 examined and recordedthe} statements of^{LWs.1 to 11 and conductedscene of offence} panchanama in^{the presence of mediators/LWs.t2 and 13 and} seized the lorry^{bearingNo.KA56 1450 in the presence of} mediators/LWs.14^{and 15. After completionof investigation,} filed charge^{sheet stating that A1 to A10 have committed} offences^{punishable under Sections 406, 42O IPC and Section 7} of the Act.

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Aggrieved by the^{said cl1argesheet, the present petitionis} filed on the following^grounds:

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Even if the entire^{allegationsalleged againstthe} petitioners are taken^{into consideration, no offence is committed} by the petitioners.^{Petitioner Nos.l and2lASand A9 are the} driver and owner^{of the crime vehicle and petitioner No'3/A10 is} the^{resident of KalwakurthyVillageand he purchasedthe PDS} rice from A1 and^{therefore, the question of the petitioners} purchasing PDS rice^{from card holders does..not arise.None of} the witnesses^{speak about the petitionerspurchasing PDS rice} from the ration^{shop dealers and that the lst respondent falsely} fited the complaint^{before Dindi Police Station without enquiry'}

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There is no material to hold that the subject rice of 200.80 quintals is PDS rice and the same was purchased by the petitioners. It is stated that if the allegations of the FIR and charge sheet are accepted based on the evidence of LWs.l to 19, no offence is made out against the petitioners and that Section 7 of the Act envisages that if any person contravenes any order made under Section 3 of the Act, he shall be punished as prescribed under the said Section. Section 17A of the Act deals only with interruption in the process of distribution. The allegation levelled against the petitioners is that the petitioners and others are purchasing PDS rice from card holders. Thus, the petitioners are not interrupting in the process of distribution, as such, no offence is committed by the petitioners. The 2.d respondent is not the competent person to search and seize the stocks as per clause 17 of the A.P. Scheduled Commodities Dealers (Licensing, Storage and Regulation) Order, 2OO8. The petitioners never collected any PDS rice and they are the drivers and owners of the lorry and therefore, prayed the Court to allow the petition.

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Heard both sides and perused the record.

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Now, the point for determination is^{whetherthe charge} sheet filed in C.C.No.l7O3^{of 2019 againstthe petitionerscan} be quashed?

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Clause 17(A) of the Control^{Order, 2008,runsas under:}

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"\7lful tnterruption ln the Procesa^{of Distribution:-"No} Fair Price Shop dealer^or card^{holderor any person shallbe allowed} to cause interruption or^{ittterferewith the} Process^{of smooth} distribution of scheduled^{commoditiesunderPublicDistribution} System or other Government^{schemesat any levelright from Food} Corporation of India^{godown pointto Fair Price Shop point,till the} scheduled commodigl^reaches the^{intendedbeneliciary. Any such} attempt of interruption or^{interferingwith such process shallbe} treated as an abetment and be^{deemed to have contravened this} order, thereby committing^{an offence underSection8 of the Essential} Commodities Act, 1955.'

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On considering the above^provision, it is^{clear that once} the commodity is taken out from the^{godownand until it} reaches the fair price shop and further it is^{supplied to the} beneficiary i.e., the consumer, Do one^{shall interrupt the} process of supply of PDS rice. Interruption in the^{sense, noneof} the persons either officials or others^{are expectedto pilferage} causing disruption to the flow of^{supply so that the consumer is} not^{benefited. There are number of instances where on account} of the fact of huge difference^{of price of PDS rice to that of the} rice available in the market, the^{PDS rice is beingdiverted} without actually supplying^{to the consumers,who are below the}

poverty line.

on careful perusal of the charge sheet and the allegations ievelled against the petitioners and other accused are that the rice, which was seized, was not diverted during the process of distribution from the godown to that of the fair price shop or from fair price shop to the consumers. The accused persons have admittedll, purchased the rice from the consumers. That means the consumers have purchased the said rice from the fair price shop and instead of consuming the same, they sold the rice to the accused persons for higher price and made money. Therefore, the question arises is once rice is supplied to the consumer through public distribution system, in case if the said consumer sells the said rice to any of the persons, including the accused, whether it amounts to an offence. The same question fell for consideration before this court in w.p.No .T8LL of 2016.

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In w.P.No.78L1 of 2o16 and batch, a Division Bench of this court, while dealing with similar issue, has held as under:

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"A careful reading of the above re-produced Clause shows that the same is attracted if a fair price shop dealer or cardholder or any person causes interruption or interferes with the smooth distribution of scheduled commodities under the public distribution system or other Gbvernment schemes at any level right from the Food corporation of India godown to the fair price shop point, till the scheduled commodity reaches the intended beneficiary. From the u,equivocar plain 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 i.e., cardf,olders. f"he l.orri"io., does not comprehend Ty *tirity ,.i",irg to any commodity falling under the Contro-l o.J".,' i6dA o.r". it reaches the

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cardholder. There^{is no whisper eitherin the detention orderor} in the grounds of^{detentionthat any of the detenus is} interrupiing the smooth^{functioningof thescheduled} .or.,*oditi"" from^{the FCI godownpoint till it reaches intended} beneficiary. On the^{contrary,the wholeallegation against- the} detenus is ttrat^{they have been purchasing the PDSricefrom} the cardholders.^{Therefore, this activity ofthe detenus} completely falls^{outside Clause17(A) of the ControlOrder,} 2008. once there^{is no prohibitionon such activity either} under the 1995 Act^{or under the Control Order, 2008 which} undisputedly is the^{only order thatgoverns distribution and} control of rice meant^{for public distribution system,the} detenus cannot be accused^{of committing any offence. As the} respondents failed to^{show thatthe detenus have contravened} thJprovisions of any^{other Control Order framed under Section} 3 of the 1995 Act, the alleged^{activities of the detenus are not} liable for any penal action.^{Once their activities do not} constitute an offence under^{law, their prcventivedetention} uncler the provisions of the^{1980 Act cannotbe sustained.}

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Hence, the impugned orders^{of detention are set aside} and consequently the^{detenusshall be forthwithreleasedfrom} jail. The writ petitions are accordingly allowed."

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In addition to the above,^{so far as the petitionersare} concerned, petitioner No.l is^{the driver of the lorry,whereas} petitioner No.2 is the owner of the lorry^{and petitioner No.3is} the purchaser of the riie.^{The question is whether thesethree} persons are in any way involved in the^offence.

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So far as petitioner No.l^{is concerned,he is the driver of} the lorry bearing No.I(A 56^{1450 consisting of PDS rice. It is not} the case of the^{prosecutionthat petitioner No.1 being the driver,} petitioner No.2 being the owner of^{the lorryare aware of the fact} that the lorry was being^{hired for transporting the rice supplied} by the Government through^{pubtic distribution system.}

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Merely, providing a lorry by A2 on hire basis being driven by petitioner No.1 for transporting the rice, the petitioners cannot be found fault.

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Further, nothing is mentioned on the bags of the rice to show that the said rice was distributed by the Government under public distribution scheme for concessional price. The rice, which was seized, is not different from the rice which is available in the open market. There is no difference between the rice, which is available in the market and also the rice, which is being supplied to the consumers by the Government under the public distribution scheme for concessional price. None of the card holders, who has received the rice and sold it were either made as accused or the witness. statement of none of the card holders is recorded to show that they sold the rice purchased from the fair price shop .through the accused persons. There is no complaint from any corner against the ac'cused alleging that they are transporting pDS rice. There is no allegation against the dealer of the fair price shop that he has instead of selling the rice to the card holders/beneficiaries has diverted into the black money and sold them to the accused persons. Transportation of rice from one place to another place is not controiled. Therefore, there is no materiar that the rice,

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which was seized is supplied to the fair price shop by the Government. It cannot be said that the petitioners, who were transporting PDS rice in the lorry bearing No.KA 56 145O are also liable to answer the charge along with other accused. Therefore, as long as there is material to show that petitioner Nos.1 and 2 are aware of the fact that the lorry was hired for the purpose of transporting PDS rice and that transporting of PDS rice is illegal, they cannot be fastened with the criminal liability along with the other accused.

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Similarly, petitioner No.3/A10 is the person, who purchased PDS rice from A1. Purchase of rice is not an offence. It is alleged that petitioner No.3/A1O has purchased the PDS rice. Mens rea is required in order to fasten the criminal liability. The prosecution is expected to place the record before the Court that petitioner No.3/A10 is aware of the fact that he has purchased the rice, which is supplied to consumers through public distribution system through fair price shops. Further, the rice, which was seized is not from the possession of petitioner No.3/A1O.

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Even according to the prosecution, on 24.06.2018, A1 to A5 have sold away 2OO quintals of PDS rice to petitioner

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No'3/Al0 for rvrongful gain in the same crime vehicre beronging to petitioner No.2/Ag, who is the owner of the vehicle being driven by petitioner No. r/Ag, who is the driver of the vehicle. It is alleged further that again about 20o.g0 quintals of rice in 434 while colour bags were being loaded in the crime vehicle in order to transport the same to petitioner No.3 /ALo. 200.g0 quintals of pDS rice, which was aregedly sord to petitioner No'3/A10 0n 24.06.201g was not seized by the police. Therefore, there is no record that on earrier occasion i.e., on 24'06.2019, A1 to A5 have sold 200.g0 quintals of pDs rice to petitioner No.3/A10. If at alr the said rice is sord to petitioner No'3/Alo, the police could have seized the said rice as welr. Further, in respect of the a,egation that the rice, which was seized' was being loaded in the lorry in order to suppry to petitioner No.3/A10, there is also no. record. petitioner No'3/A10 was not physica,y present when the rice was seized. Police have not filed any record to show that there was a transaction between A1 to A5 0n the one hand and petitioner No'3 0n the other hand to purchase the pDS rice. There is no record to show whether petitioner No.3/A10 used to suppry or sell the rice ro others. Therefore, except *re confessional

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statement of A1 to A7, there is no material connecting^to petitioner No.3/A10.

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The petitioners/A8 to A10 are also charge^sheetedwith the offence under Sections 406 and^42O IPC. Section^{406 reads} as under:

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"4A6. Punishment for criminal breach of trust.Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or wrth fine, or with both."

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In order to fasten the liability under Section 4O6 IPC, the prosecution is expected to place the material before the Court that the petitioners were entrusted with the same property and that the said property was misused by the petitioners. Admittedly, even according to the prosecution, the petitioners were never entrusted with any propert5r by anybody, including the Government. If at all the dealer of the fair price shop is involved in this case to some extent he cannot be fastened with 'the liability on the ground that the PDS rice, which is entrusted to him for distribution among the rightful persons as per the ration cards, is diverted to other persons and sold it in black money for higher price. The ration shop dealer is not an accused in this case. Even to consider remotely that the petitioners also conspired along with him and thereby the

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criminal liability can also be fasrened to this petitioner alleging that they have committed the offence with common intention. Therefore, as long as there are no allegations that any propert5r or valuable securit5r has been entrusted tc the petitioners, the question that the petitioners are misusing the property, which was allegedly entrusted does not arise. Therefore, there are no ingredients at all to remotery think that the petitioners have committed the offence under Section 406 IpC.

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The other offence alleged against the petitioners is under Section 42O IPC, which runs as under:

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"42O.. Cheating and dishonestly inducing delivery of property, - Whoever cheats and thereb! dishonesfly induces the person deceived to d.eliver an! property to any person, or to make, alter or destroy thl whole or any part of a valuable security, o, "rr5rihing which is signed or sealed, and which is capabre of u.in! converted into a valuable security, shall be punished with imprisonment of either description for a teim which may extend to seven ye€Lrs, and shal also be liable to fine."

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In order to fasten the riability under Section 42o lpc also, the prosecution is expected to place a strong prima facie material to conclude that the petitioners from the inception with dishonest intention has deceived the person, who was put to loss.

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In the case on hand,^{there is no complaint from any of the} sufferers or any of^{the persons allegingthat he was deceivedby} the petitioners on account^{of their act of being transporting the} PDS rice. It is not the^{case of the prosecutionthat the PDS rice,} which is supposed to be reached^{the beneficiaries, was diverted} in the.middle to the black^{market without distributingto the} needy persons and thereby the^{persons, who are expectedto} receive the same, have made a complaint^{that they were denied} the benefit of getting the PDS rice. It is^{also not the case that} the petitioners have deceived anybody in the^{process of alleged} transporting of PDS rice. As per the^prosecution version,^on coming to know that A1 to A5 have collected the^{PDS rice from} various persons, who purchased the rice under^public distribution system have stored the said rice in the^houseof Bojja Krishna Reddy. The police have visited the^premisesand found that the said rice bags were beihg loaded into the^crime vehicle. Therefore, even if the entire version of the^prosecution is expected to be true and correct, there is not even^an ingredient which attracts the^provision under Section^{42O lPC.}

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2I. Therefore, in view of the above, no case is^madeout against the petitiongrs^z orrd therefore, continuation^of proceedings will amount to abuse of process of law.

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In the result, the criminal petition is allowed and^the proceedings in C.C.No.1703 of 2Ol9 on the file of the Judicial First Class Magistrate at Devarakonda,^{against the} petitioners/A8 to A10 are hereby^quashed.

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Miscellaneous applications, if^{any, shall stand closed}

sd/- v.

ASSISTANT REGI

//TRUE COPY//

FFICER

To,

The Judicial First clg-s-9 Magistrate at Devarakonda, Nalgonda District.

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The Station House Officer, Dindi Police Station, Dindi 3. Two CCs to the^{public plsspfutor,} High Court for the State of Telangana. TOUTI 4. One CC to Sri Somavarapu Satyanarayana, Advo0cate(OpUC)^" 5. Two CD Copies

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HIGH COURT

DNR,J

DATED i 1310212023