THE HON'BLE SRI JUSTICE P.S.NARAYANA Crl.R.C.No.585 of 2003 23rd February, 2010 Between :- Krishnamurthy & another .. Petitioners And The State of A.P. Rep. by its Public Prosecutor, High Court of Andhra Pradesh, Hyderabad & others .. Respondents THE HON'BLE SRI JUSTICE P.S.NARAYANA Crl.R.C.No.585 of 2003 ORDER:- On 23-4-2003 while admitting the matter, this Court in Crl.M.P.No.3027/2003 made the following Order:- “After hearing the learned Counsel for the petitioners and the learned Additional Public Prosecutor for respondents 1 to 3 – State, pending Criminal Revision Case, as claimed herein, interim stay is granted.” 2. This Criminal Revision Case is filed by the revision petitioners being aggrieved of the order made in Criminal Appeal No.76/2002 on the file of the Metropolitan Sessions Judge, Hyderabad. The revision petitioners preferred the said Criminal Appeal No.76/2002 aforesaid being aggrieved of the order made in Case No.37/2001 on the file of the Chief Rationing Officer, Hyderabad, dt.10-1-2002. 3. The Counsel for revision petitioners would maintain that the learned Judge erred in not considering the ground that the dealer means a person engaged in the business and includes his respective, agent and servants or any other person acting on his behalf. The partnership was entered into in the year 1996 and the same was intimated to the Oil Company in the said year itself. According to the petitioners, there is not change of ownership and as such there was no necessity to make changes in the license. The learned Counsel also would maintain that the learned Judge erred in not considering the fact that there was no intention to mislead the respondents. Further, the learned Counsel would contend that there is no necessity to change the name of the License-holder and as such the petitioners did not request for change in the license. The learned Counsel also would maintain that the learned Judge failed to consider that the 2nd petitioner was corresponding with the Chief Rationing Officer, Hyderabad for all these years and at no point of time these Officers raised any objection in relation to the participation of the 2nd petitioner and this aspect also had not been considered in proper perspective. Further the learned Counsel would comment that the learned Judge had not considered the explanation made in this regard before the Chief Rationing Officer, Hyderabad with regard to the stocks available in the business premises of the petitioners. The learned Counsel also would further maintain that the learned Judge as well as the 3rd respondent did not consider the fact that on the date of surprise check, the petitioners received 300 cylinders in the morning at 8.00 a.m., and another 300 cylinders on the earlier day at 6.00 p.m. The inspecting team had taken into consideration the cylinders which were in the lorry at the time of inspection. In fact, those cylinders were in transit to the godown. The Counsel also would maintain that the learned Judge as well as the 3rd respondent failed to consider the fact that the petitioners require about 300 cylinders per day for regular supply and in addition that they have to supply the cylinders under Deepam Scheme. The cylinders which were available at the store room are necessary for supplying to the customers on that day. The excess cylinders were in fact in transit and as such the petitioners had not violated any conditions of the License. 4. Per contra, the learned Additional Public Prosecutor had taken this Court through the reasons which had been recorded by the learned Judge at paras 7, 8, 9 and 10 and would maintain that in the light of the convincing reasons which had been recorded by the Chief Rationing Officer, Hyderabad and also further elaborate and convincing reasons recorded by the learned Metropolitan Sessions Judge, Hyderabad while confirming the said findings, this is not a fit matter to be interfered with. 5. Heard the Counsel. 6. In the light of the submissions made by the Counsel for revision petitioners and the learned Additional Public Prosecutor, the point for consideration is whether the order under challenge in the present Criminal Revision Case made in Criminal Appeal No.76/2002 aforesaid confirming the order made by the Chief Rationing Officer, Hyderabad in Case No.37/2001 to be confirmed or to be modified or to be disturbed in the facts and circumstances of the case? 7. The Assistant Supply Officer, Circle V and Deputy Tahsildar (Enforcement), Team-I filed complaint under Section 6-A of the Essential Commodities Act (hereinafter in short referred to as ‘the Act’ for the purpose of convenience) before the Chief Rationing Officer, Hyderabad stating that a joint inspection team had conducted inspection of the premises in Lal Bahadur Stadium where the petitioners had been conducting the business in the name of Hyderabad Gas Company on 6-7-2001 and found the 2nd petitioner actually conducting business and that physical verification of the ground stock with that of the book balance did not show any variation, but heavy storage of Liquified Petroleum Gas cylinders had been found and when counted, there were 841 full LPG cylinders of total capacity of 11,942.2 Kgs. As against the premises at door No.9-4-77, Toli Chowki shed was verified, no LPG refills were available there and thus the petitioners had contravened the provisions of the Control Orders of the Andhra Pradesh Petroleum Products (Licensing and Regulation of Supplies) Order, 1980 and the Liquefied Petroleum Gas (Regulation of Supply and Distribution) Order, 2000 and Explosives Licence and the entire available stock was seized under a panchanama. 8. A show cause notice was issued in this regard and explanation had been submitted. The Chief Rationing Officer, Hyderabad held that all charges had been proved and ordered confiscation of 15% gas content value of seized stock. Aggrieved by the same, an appeal had been preferred in Criminal Appeal No.76/2002 on the file of the Metropolitan Sessions Judge, Hyderabad. The learned Judge at para 6 specify the point for consideration is whether the order dt.10-1-2001 in Case No.37/2001 on the file of the Chief Rationing Officer, Hyderabad ordering confiscation of 15% gas content value of seized stock is liable to be set aside? The learned Judge recorded reasons at paras 7, 8, 9, 10 and 11 and ultimately dismissed the appeal. Aggrieved by the same, as already aforesaid, the present Criminal Revision Case had been preferred by the revision petitioners. It is not in controversy that on 6-7-2001 a joint inspection team had conducted inspection of the premises in question wherein the petitioners had been conducting the business of Liquefied Petroleum Gas distribution under the name M/s. Hyderabad Gas Company. It is also not in dispute that the inspecting team had seized 841 cylinders (full) and 859 (empty) of total value of 9,80,431.73p. under a panchanama in the presence of one V.Srinivas, Proprietor of M/s.Srinivas Enterprises, Gowlipura and submitted report to the Chief Rationing Officer, Hyderabad. 9. The Chief Rationing Officer, Hyderabad had specified the charges as hereunder:- Charge No.1:- The licence is granted to the agency in favour of Sri Krishna Murthy, S/o.Seetharamaiah during the year 1982. But at the time of check on 6-7-2001 in the absence of the proprietor, one Sri Easwar Rao, S/o.P.Rama Rao introducing himself as partner is conducting the business. The issue of induction of partner/partners is neither brought to the notice of the licensing authority nor fresh licence obtained. According to condition No.12 of the licence issued under APPP (L&RS) Order, 1980 the licence shall not be transferred to any other person by the person to whom it is issued and in case of change in the ownership by transfer, lease or otherwise a fresh licence, shall be application by the person who had acquired such ownership. When the licence is originally granted to one individual even in case of induction of partners a fresh licence is needed. Running of the agency by partner/partners is a violation of condition 12 of the licence read with clause 3(1) of the APPP (L&RS) Order, 1980. Charge No.2:- According to condition (4) of the licence issued under the APPP (L&RS) Order, 1980 read with clause 4(2) of the said order the licencee is required to send “C” form returns to the licensing authority about the stocks, receipts, sales and deliveries and balance every month so as to reach within 5 days after the closure of the month. During the check on 6-7-2001 by the complainant the respondents failed to submit the return for the month of May and June, 2001 to the licensing authority. Non-submission of the “C” form returns is a violation of condition 4 of the licence issued under the APPP (L&RS) Order, 1980. Charge No.3:- The respondent No.1 is permitted to store 8000 Kgs of LPG in godown at D.No.9-4-77, Yousuftekdi, Toli Chowki, Shaikpet, Nampally, Hyderabad and 300 Kgs. At 24,L.B.Stadium, Hyderabad by the Explosive Department. But on the date of check on 6-7-2001 by the complainant there was NIL stock at D.No.9-4-77, Yousuf Tekdi, toil Chowki, Shaikpet, Nampally, Hyderabad and 11,942.2 kgs (841 full cylinders of dometic gas of 14.2 Kgs., each) at 24, L.B.Stadium, Hyderabad where the agency was permitted to store only 300 Kgs. Of LPG by the Explosive Department which the agency violated for their personal benefit ignoring the safety measures. At the time of issue of licence under the APPP (L&RS) Order, 1980 and subsequent requests for inclusion/deletion of storage points the Explosive Department’s permission is insisted, keeping in view the public safety. As the respondent violated the storage limit by keeping stock far above the permissible limits by the Explosive Department in respect of LPG., they have violated condition No.5 and 11 of the licence issued under the APPP (L&RS) Order 1980 and also clause 2(p) and 4(c) of the LPG (RS&D) Order, 2000. 10. The written explanation submitted also had been considered and reasons in elaboration had been recorded and ultimately the Chief Rationing Officer, Hyderabad after going through the entire material available on record and after examining the written explanation in detail and after hearing the arguments of both the parties and taking into consideration all the aspects of the case and in particular the past track record of the respondents, the said Officer was inclined to confiscate 15% of the stocks seized in favour of the Government to meet the ends of justice. The learned Metropolitan Sessions Judge, Hyderabad had referred to the 1st charge at para 8, 2nd charge at para 9 and 3rd charge at para 10 and further recorded reasons in detail affirming the reasons which had been recorded by the Chief Rationing Officer, Hyderabad. These specific charges already had been referred to above. In response to the show cause notice issued, in the affidavit filed by the 1st petitioner before the Chief Rationing Officer, Hyderabad, it was stated that the 1st petitioner is the licence-holder and he had taken the 2nd petitioner as working partner by virtue of a partnership deed and since then the 2nd petitioner had been corresponding with the concerned Officers. Thus, there is no change of ownership as such and hence there is no necessity to apply for fresh licence and hence he had not violated condition No.12 of the licence read with clause 3(1) of the A.P.P.P. (L&RS) Order, 1980. The 1st petitioner was the only licence-holder and he had inducted the 2nd petitioner as partner in the year 1996 under regular partnership deed dt.1-4-96. In pursuance thereof, the petitioners had entered into fresh agreement with the Oil Company on 14-10-1996. Thus, there is no change of ownership of the business, there is no need to enter into any fresh agreement with the Oil Company also. In fact, there has been qualitative change in the status and nature of ownership from that of proprietorship to a partnership. The licence was originally issued in favour of the 1st petitioner as a sole proprietor. Once the ownership had been transferred to the partnership concern, comprising both the petitioners, and a fresh agreement was also entered into by the said partnership firm with the Oil Company as far back as in the year 1996 itself, there is absolutely no reason or justification as to why the petitioners had not intimated the same to the licencing authority, the Chief Rationing Officer, Hyderabad and sought incorporation of the change in the licence. Further relating to 2nd charge, the failure to submit the Form-C, the 1st petitioner had stated in his reply affidavit that the returns for the month of June was ready even on 6-7-2001 but could not be submitted in view of the surprise check on that day and that it was submitted on 10-7-2001. The Chief Rationing Officer, Hyderabad in his order observed that Form-C returns are required to be filed so as to reach the licensing authority before 75h of succeeding month. It is not in dispute that Form-C returns for the month of June was in fact submitted on 10-7-2001. The inspection was conducted on 6-7-2001. By that date, the due date had not expired. Hence, it cannot be said that the petitioners had contravened any conditions of licence in the matter of submission of Form-C returns for the month of June. Thus, as far as this finding is concerned, the learned Metropolitan Sessions Judge, Hyderabad came to the conclusion that the Chief Rationing Officer, Hyderabad erred in coming to the conclusion that the charge had been proved and ultimately came to the conclusion that the said finding cannot be confirmed. 11. While answering charge No.3, the learned Metropolitan Sessions Judge, Hyderabad, after recording reasons in detail at para 10, confirmed the same. Charge No.3 related to the storing of 841 LPG cylinders full of total capacity of 11,942.02 kgs., in the business premises in question. The Inspecting Team found that the book balance was tallying with the ground balance which was 841 cylinders refills and 18 empty and there was no variation. However, the total quantity of goods comprised in 841 cylinders was of a volume of 11,942.2 kgs., which is in far excess of permitted capacity of 300 kgs., under the licence. It is not in controversy that the petitioners have regular storage godown in door No.9-4-77, Tolichowki, Shaikpet, Hyderabad, with a permitted capacity of 8000. As seen from the panchanama and inspection report, the inspecting team had inspected the permitted storage point at Toli Chowki and found no LPG cylinders there. The other particulars in the explanation also had been referred to. In fact, the learned Metropolitan Sessions Judge, Hyderabad, while confirming the findings of the Chief Rationing Officer, Hyderabad relating to charge No.3 observed as hereunder:- “It is not a case where the regular authorized godown was full with stock and so there was no space to accommodate the extra cylinders received in the Deepam Scheme and therefore they had to be stored in the business premises at Lalbahadur stadium. It is to be noted that the Inspecting team on physical verification at the authorized godown in Toli Chowki found not a single cylinder was kept there. All these cylinders pertaining to the regular business of the appellants and those received under the Deepam Scheme were stored in the business premises at Lalbahadur stadium only. There is absolutely no reason as to why the appellants have not taken steps to see that the stocks received from the Oil Company are delivered at the authorized godown in Toli Chowki. As can be verified from the invoices and other documents, it is clear that petitioner has taking delivery and effecting distribution from the business premises in Lalbahadur stadium only. Keeping the permitted storage point at Toli Chowki totally vacant and storing the entire stock at the business premises in Lalbahadur stadium has absolutely no justification. Admittedly, the business premises at Lalbahadur stadium is in the heart of the city surrounded by commercial complexes. Unauthorized storing of such a huge quantity of 11,942.2 kgs., of LPG in the business place at Lalbahadur stadium is potentially hazardous to the public safety and endangers public health and life. May be the appellants have received the extra stock from the Oil company in the course of implementation of ‘Deepam scheme’ sponsored by the Government but, when they have a regular authorized godown at Toli Chowki, Hyderabad, they are not justified in receiving the stock at the business premises in Lalbahadur stadium and keeping them in unsafe and insecure conditions far in excess of the permitted capacity and keeping the godown at Toli Chowki totally vacant. By such unjustified conduct, the appellants have certainly violated the conditions of licence and therefore contravened the provisions of the A.P.P.P. (L&RS) Order, 1980 and Crl.2(p) and 4(c) of LPG (RS & D) Order, 2000. The finding of the learned Chief Rationing Officer, Hyderabad holding the said charge as proved is therefore not liable to be set aside.” 12. Thus the learned Metropolitan Sessions Judge, Hyderabad came to the conclusion that the findings recorded by the Chief Rationing Officer, Hyderabad relating to charge Nos.1 to 3 to be affirmed but however as far as the findings recorded by the Chief Rationing Officer, Hyderabad in relation to charge No.2 being unsustainable, the same to be disturbed. In the light of the peculiar facts and circumstances and especially the nature of the stand taken in the explanation by the 1st petitioner and also in view of the fact that the Appellate Court – the learned Metropolitan Sessions Judge, Hyderabad was not inclined to confirm the findings of the Chief Rationing Officer, Hyderabad relating to charge No.2, the confiscation of 15% of the gas content value of the seized stock being on higher side, the same is modified to 10%. Accordingly, the order is hereby modified limiting the confiscation to an extent of 10% of the gas content value of the seized stocks instead of 15% as directed by the Chief Rationing Officer, Hyderabad which had been confirmed by the learned Metropolitan Sessions Judge, Hyderabad as already aforesaid. 13. The discretion in exercise of revisional jurisdiction should be exercised within the four corners of Section 397 of the Criminal Procedure Code whenever there has been miscarriage of justice in whatever manner. But however the revisional jurisdiction should not be lightly exercised and it cannot be invoked as of right. However, when the discretion was not exercised in accordance with law, may be that this Court while exercising revisional jurisdiction can rectify the same in accordance with law. 14. Accordingly, the order is hereby modified limiting the confiscation to an extent of 10% only as aforesaid and accordingly, the Criminal Revision Case is partly allowed to the extent indicated above. _____________________ Justice P.S.Narayana 23rd February, 2010 smr