D.S. Govindaraju vs The State Of Ap
2021 Latest Caselaw 4700 AP

        THE HON'BLE SRI JUSTICE M.GANGA RAO

                 Writ Petition No. 9969 of 2021

ORDER:

In this writ petition, the petitioners sought a Writ of

Mandamus declaring the action of the 5th respondent in

seizing of 260 bags of rice each weighing 50 Kgs. belonging to

the 1st petitioner and the Eicher transport vehicle bearing

registration No.AP02 TA 7269 belonging to the 2nd petitioner

under the cover of panchanama/mediator report dated

01.04.2021, as being illegal, arbitrary and without any

authority of law or jurisdiction and contrary to the provisions

of the Essential Commodities Act, 1955 (for short 'the Act')

and the Andhra Pradesh State Targeted Public Distribution

System (Control) Order, 2018 (for short 'the Control Order,

2018') besides violative of the provisions of Article 14, 19(1)(g)

and 21 of the Constitution of India and consequently to set

aside the same with a direction to the respondents not to take

any action in pursuance of the illegal seizure.

2. Heard the learned counsel for the petitioners, learned

Government Pleader for Home appearing for the respondents

4 and 5 and the learned Assistant Government Pleader for

Civil Supplies appearing for the respondents 1 to 3.

3. The facts of the case are that the 1st petitioner is the

proprietor of the firm styled as 'Shankar Trading Co.' and the

2nd petitioner is the owner of the seized vehicle bearing

Registration No.AP02 TA 7269. The 5th respondent - Head

Constable of Kuderu Police Station, Ananthapuramu District

seized 260 bags of rice each weighing 50 Kgs. of the 1st

petitioner and the vehicle of the 2nd petitioner under the cover

of Mediators report dated 01.04.2021 alleging that on

receiving credible information, the vehicle was stopped on

Ananthapuramu - Bellary road on 01.04.2021 at 02.45 a.m.

within the jurisdiction of Kuderu Police Station. On seeing

them, the driver of the vehicle tried to abscond from the

scene. Then, the 5th respondent with the help of his staff,

chased him and brought him to their custody. On enquiry,

he revealed that his name was Dasari Naresh; one

Subrahmanyam @ Setty of Alumuru and Teja are his friends;

the said Teja used to purchase rice from him, convert it into

polished rice and sell it in open market for higher rates; in

this process, on 31.03.2021, he purchased rice from the

villagers of Kuderu Mandal for lesser price; and while

transporting the load to Ananthapuramu in the vehicle, they

caught hold of them. Then, on search of vehicle, it is found

that there are 260 bags of rice and the total weight of the

bags is 10,285 Kgs. Immediately, they seized the rice along

with vehicle. Based on the said mediators report, a crime was

registered as F.I.R.No.54 of 2021 of Kuderu Police Station for

the offences under Section 420 r/w 34 of I.P.C. and under

Section 7(1) of the Act. The same was informed to the

Tahsildar, Kuderu Mandal for necessary action in respect of

seized rice as per law.

4. The 3rd respondent - Joint Collector, Ananthapuramu

District and the 4th respondent - Sub-Inspector of Police,

Kuderu Police Station filed their counters on similar lines

stating that the 5th respondent seized 255 bags of rice (sic.

260 bags of rice) each containing approximately 50 Kgs.

belonging to the 1st petitioner and the vehicle bearing

Registration No.AP02 TA 7269 belonging to the 2nd petitioner

under the cover of Mahazernama dated 01.04.2021 in FIR No.

54 of 2021 of Kuderu Police Station for the offences under

Section 420 r/w 34 of I.P.C. and under Section 7(1) of the Act.

The 5th respondent, on credible information, in the absence of

the Sub-Inspector of Police who was on investigation duty in

Crime No.163 of 2019 under 'Man missing' case and the

Assistant Sub-Inspector of Police who was deputed to

Bandobust duties to prevent sand transportation, proceeded

to Ananthapuramu - Uravakonda (sic.) highway along with

constables and mediators to search the vehicles and noticed

the offending vehicle with a load of rice bags. When the driver

of the vehicle tried to skulk away, they apprehended him,

searched the vehicle and seized the stock along with vehicle

under the cover of panchanama. The same was informed to

the Tahsildar, Kuderu Mandal to take necessary action under

the provisions of the Act and the Control Order, 2018. Hence,

there is no illegality or irregularity in seizing the rice bags and

the vehicle.

5. Sri Harish Kumar Rasineni, learned counsel for the

petitioner, would contend that seizure of the stock and vehicle

is illegal, arbitrary and without any authority and also in

violation of the provisions of Clause 20(a) of the Control

Order, 2018. Under the said clause, Officers of the Police

Department not below the rank of the Sub-Inspector of Police

alone are competent to search and seize the stock. In support

of his contention, he placed reliance on the reported decision

in Sri Vigneswara Traders, Komerapudi Village, Sattenapalli

Mandal, Guntur District, Rep. by its Proprietor-K.gangadhara

Reddy and another Vs. Circle Inspector of Police, Porumamilla

Police Station, Kadapa District and two others1 and also

judgment of this Court in Writ Petition Nos.16240 of 2019

dated 29.10.2019 and Writ Petition No.17827 of 2019 dated

12.11.2019, wherein it is held that the police officers not

below the rank of Sub-Inspectors, within their respective

jurisdictions, are alone competent to search and seize the

stock, on the reasonable suspicion that the rice are PDS rice

as per the provisions of Clause 20(a) of the Control Order,

2018.

6. Learned Assistant Government Pleader for Civil

Supplies appearing for the respondents 1 to 3, while

(2013) 4 ALD 241

reiterating the averments of the counter, submits that as per

Mahazernama dated 01.04.2021, on reasonable suspicion

that the rice being transported in the vehicle are PDS rice, the

5th respondent along with staff seized the rice bags along with

vehicle and informed the same to the Tahsildar concerned to

take appropriate action as per the provisions of the Act and

the Control Order, 2018. Hence, the seizure could not said to

be illegal and without any authority. He further states that in

view of the interim order dated 27.05.2021, the seized stock

and the vehicle were released as per the proceedings of the 3rd

respondent to the petitioners and that no cause survives in

this writ petition for adjudication.

7. Learned Government Pleader for Home appearing for the

respondents 4 and 5 vehemently submits that the Head

Constable while acting as a Station House Officer during the

relevant period in the absence of Sub-Inspector of Police and

Assistant Sub-Inspector of Police, found that the petitioners/

accused committed cognizable offence and thereby registered

the same as Crime No.54 of 2021 under Section 420 r/w 34

I.P.C. and under Section 7(1) of the act and took up

investigation. He further submits that as contemplated under

Order 452(2) of Andhra Pradesh Police Manual (Part-I,

Volume-II 'A'), a Head Constable in-charge of an outpost or a

beat area or check post, without the intervention of the SHO,

may take action in offence under special and local

enactments, which empower the Head Constable to take

action. Further, immediately after seizure of the stock and

vehicle, the Head Constable informed the same to the

jurisdictional Executive Magistrate. Hence, no motives could

be attributed to the Head Constable and he acted bona fidely

to prevent the illegal transportation and sale of PDS rice. It is

for the competent authority under the provisions of Section

6A of the Act to decide as to whether the rice seized are PDS

rice or not based on the evidence adduced. Hence, the

seizure of the stock and the vehicle could not said to be

illegal, arbitrary and without the authority of law.

8. The possession and transportation of PDS rice is illegal

and contrary to the provisions of the Control Order, 2018 and

the provisions of the Act. But, Clause 20(a) of the Control

Order, 2018 reads as under:

"Any officer or person authorized by the State Government or by the District Collector or by Collector (Civil Supplies) the appointing authority or any officer of the Civil Supplies/other State Government departments not below the rank of Revenue Inspector/Checking Inspector/Enquiry Inspector (Civil Supplies), or any Gazetted Officer of Vigilance and Enforcement Department of the State or any officer authorized in this behalf by the State Government not below the rank of a Sub-Inspector of Police, may enter the premises of the fair price shop or any private premises where the scheduled commodities pertaining to Targeted Public Distribution system or other Government schemes are kept/positioned or found in transit and conduct inspection and seize any stocks of scheduled commodities, supply documents or books, accounts or other related document for the purpose of such inspection/seizure for contravention of the provisions of this Order, Officers of Legal Metrology Department, Team of Social Audit appointed by Commissioner of Civil Supplies

are also empowered to inspect the fair price shop premises, in regard to weights and measures."

As per the provisions of above clause, the Civil Supplies

officers and any person authorized by the State Government

or by the District Collector or by Collector (Civil Supplies) are

competent to search and seize on reasonable suspicion that

the rice being transported are PDS rice. But, in respect of

police officers concerned, only the police officer not below the

rank of Sub-Inspector of Police is alone competent to search

and seize the stocks, etc.

9. This Court, while dealing with the similar provision

under Clause 17(1) of the Andhra Pradesh Scheduled

Commodities Dealers (Licensing, Storage and Regulation)

Order, 2008 in the case of Sri Vigneswara Traders (1 supra),

which is para materia or identical to Clause 20(a) of the

Control Order, 2018, held that certain officers of different

departments are empowered inter alia to seize the stocks and

as regards the Police department, it is the officers not below

the rank of Sub-Inspectors, within their respective

jurisdictions, are alone competent to search and seize the

stock to find out as to whether the rice being stored or

transported are PDS rice in contravention of the provisions of

the Control Order.

10. Following the said decision (1 supra), this Court allowed

Writ Petition No.19041 of 2019 dated 27.11.2019 by setting

aside the search and seizure under mediator report dated

04.11.2019 therein, declaring them as illegal and without

authority of law. The respondents therein are also directed to

release the stock and the vehicle to the petitioners therein.

11. In view of the above discussion and submissions of the

learned counsel, this Court found that the provisions of

Clause 20(a) of the Control Order, 2018 empower only the

police officer not below the rank of Sub-Inspector of the

jurisdictional police station as competent to search and seize

the stock on a reasonable suspicion that the stock being

stored or transported are PDS rice. On such seizure,

immediately he has to inform to the concerned officers to take

appropriate action as per the provisions of the Control Order,

2018 and under the provisions of the Act.

12. This Court is not persuaded to accept the contentions of

the learned Government Pleader for Home and the learned

Assistant Government Pleader for Civil Supplies that the

Head Constable, In-charge of the Police Station, is empowered

to search and seize the stock and vehicle on reasonable

suspicion that the PDS rice are being transported. The

further contention of the learned Government Pleader for

Home that Order 452(2) of Andhra Pradesh Police Manual

empowers the Head Constable in-charge of an outpost or a

beat area or check post, without the intervention of the SHO,

may take action in offence under special and local

enactments. But, the Head Constable is not specifically

authorized or empowered to deal with the PDS stock.

13. The learned Government Pleader for Home also

contended that as per the provisions of Section 102 Cr.P.C.,

any police office may seize any property which may be found

under circumstances which create suspicion of the

commission of any offence. But, such police officer, if

subordinate to the officer in charge of a police station, shall

forthwith report the seizure to that officer. Therefore, such

power could not be taken away by the provisions of the

Control Order, 2018. However, learned counsel for the

petitioner states that the Code of Criminal Procedure is a

general procedure Code, whereas Control Order, 2018 is

passed exercising the power under the provisions of Section 3

of the Act, which is a special enactment and it overrides the

general provisions and the police officers below the rank of

Sub-Inspector of Police are not empowered to search and

seize the essential commodities. Hence, the contention of the

learned Government Pleader for Home is unsustainable under

law.

14. Following the decision in the case of Sri Vigneswara

Traders (1 supra) and the order passed in Writ Petition

No.19041 of 2019 dated 27.11.2019, this Court is not

persuaded to take any different stand to that of the above

decisions. Hence, the seizure of stock and vehicle by the 5th

respondent under Mahazarnama dated 01.04.2021 is

declared as illegal, arbitrary and without authority of law and

consequently the same is set aside.

15. Accordingly, the Writ Petition is allowed. The interim

order passed in I.A.No.1 of 2021 dated 27.05.2021 holds good

and thereby the vacate petition i.e., I.A.No.2 of 2021 is

dismissed. No order as to costs.

16. Miscellaneous Petitions, if any, pending in this writ

petition shall stand closed.

___________________________ JUSTICE M.GANGA RAO

-11-2021 anr

THE HON'BLE SRI JUSTICE M.GANGA RAO

Writ Petition No. 9969 of 2021

-11-2021

Anr