THE HON’BLE SRI JUSTICE B.N. RAO NALLA CRIMINAL REVISION CASE No.356 of 2005 ORDER: This Criminal Revision Case is filed against the judgment dated 09.12.2004 in Criminal Appeal No.168 of 2003 on the file of the Court of Session, Krishna Division at Machilipatnam whereby and wherunder the order dated 13.10.2003 in E.C.P. No.35 of 2003 on the file of the Joint Collector, Krishna, Machilipatnam, for confiscation of 100% value of the seized kerosene oil to the Government was confirmed while setting aside the penalty of Rs.10,000/- imposed on the second appellant. 2. The brief facts of the case that are necessary for disposal of the present revision are as follows: The first appellant is the IOC wholesale dealer of PDS Blue Dyed Kerosene Oil at Avanigadda. On receipt of information about diversion of PDS Blue Dyed Kerosene Oil to be delivered to IOC dealer at Avanigadda village, the Deputy Superintendent of Police, Regional Vigilance & Enforcement Office, Vijayawada along with his staff, mediators on 23.7.2003 at 18.00 hours intercepted one oil tanker bearing registration No.A.P.16 5X 7426 behind Sivalayam Street, Machilipatnam Town and noticed that the oil tanker was loaded with 12 KLs. of S.K.Oil of value of Rs.1,05,953/- at IOC Terminal, Kondapalli village on 23.7.2003 at 13.00 hours to be delivered to M/s.Shankar Agencies, Avanigadda. 3. On examination, the third appellant- driver of the oil Tanker has confessed that the fourth appellant- White K. Oil dealer, Machilipatnam gave the demand drafts and way bills on 23.07.2003 and asked to get the load of 12 KLs of PDS S.K.Oil to him at Machilipatnam. Accordingly, he got the tanker loaded with 12 KLs. of PDS S.K. Oil at Kondapalli IOC Terminal, as per the indent of M/s.Shankar Agencies, Avanigadda and transported the same to Machilipatnam. The fourth appellant has also confessed before the Inspecting staff that he had purchased 12 KLs. PDS S.K. Oil for Rs.1,44,000/- by paying Rs.38,087/- excess amount, than the invoice rate and collected the demand draft and indent from M/s.Shankar Agencies, Avanigadda and handed over the same to the third appellant and got the load of 12 KLs. of PDS Kerosene oil to Machilipatnam for selling the same to boat drivers at Machilipatnam. The petitioner in E.C.P. had concluded that the appellants were indulging in clandestine business of diverting PDS Blue Dyed Kerosene Oil into black market, contravening the provisions of Clause 3(2) of the Kerosene (Restriction on Use and Fixation of Ceiling Price) Order, 1993 and Clause 26 of A.P. Petroleum Products (L&RS) Order, 1980 read with Sections 7 and 8 of Essential Commodities Act,1955 and seized 12 KLs. of PDS Kerosene oil along with tanker bearing No.A.P. 5X7426 and requested to confiscate the entire seized stock to the Government. 4. The appellants’ explanation for diversion of the oil tanker to Machilipatnam instead of Avanigadda is that the roads connecting from Yandakuduru to the villages Lankapalli, Pushadam, Chitturpu and Daliparru of Ghantasala mandal were destroyed due to rains and the clerk of the first appellant discussed the issue with the first appellant and as such, the third appellant-driver brought the tanker to Machilipatnam with a bonafide intention to hand over the tanker to 2nd driver of the tanker, as his duty was also over and the roads for the villages proposed for distribution of kerosene oil, are very convenient roads from Machilipatanm. Therefore, the third appellant reached Sivalayam Centre of Machilipatnam on 23.7.2003 at about 5.45 pm. Then, the officials intercepted the tanker and seized the kerosene along with the tanker for route diversion only. The tanker has all required documents for transporting 12 KLs. of Kerosene oil. The fourth appellant is the friend of the first appellant and he used to provide financial help to the first appellant in doing the business. As such, the fourth respondent handed over the required demand draft for obtaining 12 KLs. of Kerosene oil from Kondapali IOC Plant to the second appellant and the second appellant handed over the same to the third appellant-driver and as such the third appellant has obtained 12 KLs. of PDS Kerosene Oil on 23.7.2003 with an intention to distribute the same in the villages. Therefore, the appellants have not done any clandestine business. 5. The learned Joint Collector after taking into consideration the facts and circumstances of the case held that appellants 1 to 4 indulged in clandestine business of diversion of PDS Blue Dyed Kerosene Oil, and ordered for confiscation of 100% value of the seized kerosene oil to the Government and an amount of Rs.10,000/- was levied as penalty on the second appellant. 6. Aggrieved by the order of the learned Joint Collector, the appellants filed the E.C. Appeal on the file of the Court of Session, Krishna Division, at Machilipatnam and the learned Sessions Judge after taking into consideration the facts and circumstances of the case, has confirmed the order to the extent of confiscation of 100% value of the seized kerosene oil to the Government while setting aside the penalty of Rs.10,000/- imposed on the second appellant. 7. Heard the learned counsel for the appellants and the learned Public Prosecutor for the respondent. 8. The first appellant is the Indian Oil Corporation PDS Kerosene Oil Wholesale Dealer,Aaanigadda. The second appellant is the owner of the oil tanker bearing No.A.P.5X 7426, Bandarkota, Machilipatnam. The third appellant is the driver of the said tanker and the fourth appellant is White Kerosene Parallel Marketer at Machilipatnam. On 23.07.2003, the first appellant got loaded 12 KLs of PDS Kerosene Oil from Kondapalli filling station near Vijayawada with the tanker of the second appellant which was to be delivered to IOC dealer at Avanigadda village, but the third appellant-driver of the Tanker instead of going to Avanigadda, directly took the tanker to Machilipatnam. The distribution points of the first appellant are at Movva, Mopidevi and Ghantasala Mandals. The Deputy Superintendent of Police, Regional Vigilance and Enforcement Office, intercepted the said tanker at Machilipatnan on 23.7.2003 at 6.00 p.m. behind Sivalayam Street, Machilipatnam town. 9. This court has gone through the entire record placed before it. No doubt, there are lapses on the part of the appellants, particularly in not approaching the concerned Mandal Revenue Officer with regard to distribution of kerosene oil, entering the stock particulars in the relevant register and the villages proposed for distribution of Kerosene oil etc. But the explanation offered by the appellants for diversion of the oil tanker to Machilipatnanm is that the roads connecting from Yandakuduru to the villages Lankapalli, Pushadam, Chitturpu and Daliparru of Ghantasala Mandal were destroyed due to rains and the clerk of the first appellant discussed the issue with the first appellant and then the third appellant-driver brought the tanker to Machilipatnam with a bonafide intention to hand over the tanker to the 2nd driver of the tanker as his duty was also over and the roads for the villages proposed for distribution of Kerosene oil are very convenient roads from Machilipatnam. In view of the above explanation, this court is of the considered view that confiscation of 100% value of the seized kerosene oil to the Government ordered by the learned Joint Collector as confirmed by the learned Sessions Judge is not justified particularly in view of the fact that the oil tanker was diverted to Machilipatnam due to bad condition of roads. Hence, this court is inclined to reduce the confiscation from 100% value of the seized kerosene oil to the Government to 30%. 10. Further, it is seen that the tanker of the second appellant which was seized, was released on furnishing of a bank guarantee for Rs.32,000/- being 30% value of the seized kerosene oil. But there is no record to show that the second appellant involved in the business. Therefore, the bank guarantee is to be discharged. 11. In the result, the Criminal Revision Case is allowed-in-part reducing the confiscation from 100% value of the seized kerosene oil to the Government to 30%. The bank guarantee given by the second appellant is discharged. _______________ B.N.RAO NALLA,J -06-2010 Stp