THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl. R.C.No.1499 of 2005 Date: .11.2011 Between: Jonnala Venkateswara Rao … Petitioner AND State of A.P., rep.by its Public Prosecutor, High Court of A.P., Hyderabad. … Respondent THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl. R.C. No.1499 of 2005 ORDER: The sole revision petitioner is the appellant in C.M.A.No.30 of 2001 on the file of the Principal Sessions Judge, Eluru. He was allegedly found to be in possession of 236 quintals of swarna variety of paddy in 472 bags valuing ` 1,18,000/- when the Vigilance Department surprised the house-cum-godown of the petitioner. Considering that the petitioner contravened the provisions of the Clause (3) of the Andhra Pradesh Prevention of Hoarding of Food Grains Order, 1973 (the Control Order 1973, for short) and Clauses 3 and 4 of the Andhra Pradesh Scheduled Commodities Dealers (Licensing & Distribution) Order, 1982 (the Control Order 1982, for short), the learned Joint Collector, Eluru ordered the confiscation of 100% of the seized stock. In the appeal preferred by the revision petitioner, the learned Principal Sessions Judge upheld the finding of the learned Joint Collector that the revision petitioner contravened the provisions of the Control Orders but deemed it appropriate to reduce the quantum of confiscation from 100% to 50%. Not satisfied with the same, the petitioner preferred the present revision. 2. The petitioner is said to be a farmer by himself. The Vigilance Officials conducted the raid on his house situate at Vakapalli village, Ganapavaram Mandal, West Godavari District on 07.07.2000. Admittedly, 236 quintals of swarna variety of paddy in 472 bags was found at the house of the petitioner. The Vigilance Department considered that the petitioner was doing commission business and was dealing with clandestine business in paddy without proper licence. Consequently, proceedings under Section 6A of the Essential Commodities Act (the Act, for short) were initiated. The Joint Collector, Eluru ordered the confiscation of 100% of the seized stock. 3. Sri Polisetti Radhakrishna, learned counsel for the petitioner contended that the stock found at the house of the petitioner belongs to various farmers of the village and that as they did not find it convenient to store the same, they preserved the stock in the house of the revision petitioner. The learned counsel for the revision petitioner submitted that the revision petitioner obtained the certificate from the Village Administrative Officer as early as 08.07.2000 i.e., on the very next date after the raid pointing out that the stock did not belong to the revision petitioner. 4. Neither the learned Joint Collector nor the learned Principal Sessions Judge accepted the Village Administrative Officer’s Certificate. They considered that the certificate of the Village Administrative Officer, obtained after the raid is of no value. I am afraid that this approach is not correct. It is the case of the petitioner that it became necessary for the petitioner to obtain the certificate from the Village Administrative Officer as the confiscation was on the ground that the property belonged to the revision petitioner. In view of the certificate of the Village Administrative Officer, it is not difficult to assume that the stock did not belong to the revision petitioner, but was stored by the farmers in the house of the revision petitioner. This assumption is fortified by the claim petition on 18.01.2001 by various farmers. In view of the certificate of the Village Administrative Officer and the claim petition, I conclude that the revision petitioner was not the owner of the stock found at his house. 5. However, the fundamental question is whether the revision petitioner committed contravention of the provisions of the Control Orders or not. 6. No one is entitled to stock food grains beyond the limit provided by the Control Orders without licence. Admittedly, the petitioner did not possess any licence to maintain food grains stock at his house. It is indeed the case of the petitioner that the stock did not belong to him. Storing the stock in his house without proper licence is indeed violation of the provisions of the Control Orders. I, therefore, conclude that the petitioner is prima facie found to possess stock of 236 quintals of paddy without proper licence. 7. The learned counsel for the revision petitioner, however, contended that mere possession of stock of paddy is not tantamount to contravention of the provisions of the Control Orders and that it should be established that the stock was for the clandestine business of the revision petitioner. The learned counsel for the petitioner placed reliance upon the decisions of the High Court in this context. 8. In Samudrala Venkateswar Rao v. Government of India[1], a single Judge of this Court held that when the dealer was not shown to be indulging in clandestine business, confiscation of the entire stock is not proper. Similar view was expressed by another single Judge of this Court in Dilip Kumar v. State[2], where it was observed that in the absence of a finding that the dealer was indulging in clandestine purchase or sale of essential commodities, confiscation could not be ordered. It was clarified that confiscation on mere ground that there was variation between book balance and ground stock was not sustainable. On the strength of these two decisions, Sri P. Radkha Krishna, learned counsel for the revision petitioner contended that the confiscation recorded by the learned Joint Collector and confirmed by the Principal Sessions Judge is not sustainable. I have no reason to differ from the view expressed by this Court in the above two cases. The prosecution should establish that the dealer was indulging in clandestine business. It may be noticed that the petitioner was charged for violation of the Clause (3) of the Control Order 1973 and Clauses 3 & 4 of the Control Order 1982. Both of them relate to indulging in hoarding unauthorizedly and indulging in clandestine business. In response to the show cause notice by the Joint Collector, the petitioner herein claimed that the stock belonged to seven farmers and that he was not indulging any clandestine business. I agree with the contention of the learned counsel for the revision petitioner that albeit it was established that the petitioner was in possession of huge stock of 236 quintals of swarna variety of paddy, the prosecution unfortunately failed to show that the petitioner was indulging in clandestine purchase or sale of essential commodities. In view of Section 7 of the Act and Control Orders 1973 and 1982, unless it is shown that the dealer or possessor of the stock was indulging in clandestine business of essential commodities, proceedings u/s.6-A of the Act and confiscation of the stock would be improper. The confiscation in the present case, consequently, is liable to be set aside, as there was no evidence that the petitioner was indulging in clandestine business. The learned Joint Collector and the learned Sessions Judge erred in considering and issuing a finding specifically regarding the clandestine business by the revision petitioner. Those orders are liable to be set aside for the reasons mentioned above. 9. The Criminal Revision Case, consequently, is allowed. Confiscation of the seized stock is found to be incorrect and is set aside. The State shall refund the seized stock or the value thereof to the revision petitioner. ________________ K.G. SHANKAR, J Date: .11.2011 Isn [1] 2002 (6) ALD 389 [2] 2004 (1) ALD (Crl.) 360 (AP)