HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL REVISION CASE NO.1860 OF 2009 DATE:30.08.2010 Between: Suresh Kumar Jain and 2 others …… Petitioners. And: State of AP., rep. by its PP., High Court of AP., Hyderabad and another …..Respondents HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL REVISION CASE NO.1860 OF 2009 ORDER: 1. This revision petition is filed questioning judgment dated 31.07.2009 passed by the Principal Sessions Judge, East Godavari, Rajahmundry in Criminal Appeal No.252 of 2008 confirming order dated 05.08.2008 passed by the Collector, East Godavari District, Kakinada in Ref.V10/CS/91/2008, but altering confiscation of the seized stock from 15% to 5% under Section 6-C of the Essential Commodities Act. 2. The petitioners 1 to 3 are Managing Director, Deputy Director and Supervisor in M/s. L.M.J. International Limited, Kolkatta at Kakinada who is rice exporter. Allegations against the petitioners are: 1) that their company being a dealer, is supposed to purchase levy free rice only and that the company purchased rice stocks from different rice millers who mill levy to the Government and that the company did not produce any records that purchases are from out of levy free rice and that therefore there is contravention of Clauses 3 and 4 of the A.P. Rice Procurement (levy) Order, 1984; and 2) that dealers/millers are under obligation to deliver levy rice to Food Corporation of India to the extent of 75% and thereafter will become eligible to sell 25% of levy free rice within the State or outside the State and that the dealer shall specify in the sale invoice that the said rice is levy free rice and mark copy of sale invoice to the Collector for record and that it was not done by the petitioners’ company contravening condition 15 of G.O.Ms.No.38 dated 24.09.2007 of Consumer Affairs, Food and Civil Supplies (CS-I) Department. 3. The 2nd petitioner filed explanation on behalf of all the petitioners to the show-cause notice issued by the Collector contending that they have purchased 5,476.300 MTs of Par Boiled Rice during the period from 21.01.2008 to 30.01.2008 and subsequently obtained no objection letters or levy free declaration letters from the millers confirming that the rice supplies to the petitioners’ company is out of their levy free eligibility of the stocks closing as on 30.09.2007 and that therefore, they have not violated Clauses 3 and 4 of the Control Order and that G.O.Ms.No.5 dated 06.02.2008 was passed subsequent to purchase of rice by the petitioners’ company and that G.O.Ms.No.38 dated 24.09.2007 is not applicable to the petitioners as they are exporters and not local dealers or rice millers. 4. The Collector came to the conclusion that the petitioners are dealers and are supposed to inform all the purchases and sales to the Collector invariably and that since they have failed to submit the transactions made by them to the Collector, the charges against the petitioners are proved. As against that order of the Collector, the petitioners filed appeal before the Principal Sessions Judge, East Godavari, Rajahmundry. In the appeal, the lower appellate court confirmed findings of the Collector. 5. Both the authorities below came to the conclusion that the appellants’ company is a dealer basing on G.S.R.No.490 (E) dated 16.06.2003 amending G.S.R.No.104(E) dated 15.02.2002 redefining ‘dealer’ as follows: “means any person engaged in the business of purchase, movement, sale, supply, distribution, or storage for sale of any commodities specified in Clause-3 whether as a wholesaler or retailer or producer or manufacturer or exporter or importer whether or not in conjunction with any other business and includes his representatives or agent but does not include a producer or a manufacturer or importer or exporter of sugar”. Since there is no dispute about the petitioners’ company being an exporter, it automatically falls within the definition of ‘dealer’. 6. It is contended that the petitioners’ company got an export order to supply 50,000 MTs of rice to Bangladesh Government as per notification No.60(RE-2007)/2004-2009 dated 06.12.2007 issued by the Director General of Foreign Trade, Ministry of Commerce, New Delhi. Though the petitioners’ company being an exporter, in view of G.S.R.No.104(E) redefining a ‘dealer’ in the above manner, the exporter is bound by the Andhra Pradesh Rice Procurement (Levy) Order, 1984. In G.O.Ms.No.38 CA, F and CS Department dated 24.09.2007 issued under Clauses 3 and 4 of the above Control Order, rice millers as well as dealers shall deliver 75% of rice derived out of total paddy milled to Food Corporation of India under mill levy. Subsequently, G.O.Ms.No.5 of the same department dated 05.02.2008 was issued to the same effect reiterating G.O.Ms.No.38 and para-6 of G.O.Ms.No.5 reads as follows: “6. All the exporters who have obtained necessary orders from Govt. of India shall obtain clearance from the Commissioner of Civil Supplies, A.P., Hyderabad for purchase of rice from the rice millers/traders of A.P. who have achieved 25% of Levy free eligibility only on delivery of 75% of levy rice to Food Corporation of India by filing affidavit for the quantity of rice to be purchased from the rice millers/traders of Andhra Pradesh for export to be purchased from the rice millers/traders of Andhra Pradesh for export to foreign countries so that levy rice is not exported in the guise of levy free rice.” Thus, exporter being one who comes within the definition of ‘dealer as per G.S.R.No.490(E), is liable to ensure that he exports rice which is within 25% limit of levy free rice. Consequently, irrespective of G.O.Ms.No.5, the petitioners’ company is liable to maintain registers, sale invoices, declarations etc. as if it is a ‘dealer’ and submit copies of sale invoices to the Collector under Condition No.15 of G.O.Ms.No.38 dated 24.09.2007 before transporting the rice for export. Factually, both the authorities below have consistently found that the petitioners’ company did not comply with requirements of law in respect of which charges were framed by the Collector. Therefore, this court finds that both the authorities below have rightly found that the petitioners’ company contravened Clauses 3 and 4 of the above Control Order and also G.O.Ms.No.38. 7. The Collector was considerate and ordered confiscation of only 15% of the seized stock. The appellate authority i.e., the Principal Sessions Judge took further lenient view as the violations are technical in nature and limited the confiscation to only 5% of the seized stock instead of 15% of the stock. I do not find any circumstances to be further lenient towards the petitioners’ company in this revision petition. 8. In the result, the revision petition is dismissed. __________________________________ SAMUDRALA GOVINDARAJULU,J. Date:30.08.2010. Gk. HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL REVISION CASE NO.1860 OF 2009 Date:30.08.2010 Gk.