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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE SWAMIDURAI
Selvan and Others, Etc
Versus
State
Criminal Appeal Nos. 194 to 197 of 1985 and 838 to 841 of 1986
Decided On : 10-10-1990
TAMIL NADU PADDY (RESTRICTION ON MOVEMENT) ORDER, 1982 - ORDER 5(3) - SEARCH AND SEIZURE - PROVISIONS OF SECTIONS 100 AND 165 OF THE CODE OF CRIMINAL PROCEDURE, 1973 - FAILURE TO COMPLY - NOTIFICATION NOT FILED - CONVICTION AND SENTENCE SET ASIDE.
Fact of the Case:
The accused were charged with violating the Tamil Nadu Paddy (Restriction on Movement) Order, 1982, and the Tamil Nadu Essential Trade Articles (Regulation of Trade) Order, 1974, for purchasing paddy without a valid permit and attempting to transport it outside the district. The prosecution alleged that the accused had loaded paddy in their lorries and were attempting to transport it from Thanjavur District to Pudukkottai District without a permit.
Finding of the Court:
The court found that the prosecution had failed to prove that the area where the accused had procured paddy was a prohibited area, as the Notification declaring the area as such had not been filed in court. The court also found that the provisions of Section 100 and 165 of the Code of Criminal Procedure, 1973, relating to search and seizure, had not been followed, as a copy of the search list was not delivered to the accused.
Issues: 1. Whether the prosecution had proved that the area where the accused had procured paddy was a prohibited area. 2. Whether the provisions of Section 100 and 165 of the Code of Criminal Procedure, 1973, relating to search and seizure, had been followed.
Ratio Decidendi: The court held that the prosecution had failed to prove that the area where the accused had procured paddy was a prohibited area, as the Notification declaring the area as such had not been filed in court. The court also held that the provisions of Section 100 and 165 of the Code of Criminal Procedure, 1973, relating to search and seizure, had not been followed, as a copy of the search list was not delivered to the accused.
Final Decision: The court set aside the conviction and sentence imposed on the accused and ordered the refund of the fine amount, if it had been paid. The court also set aside the order of confiscation of the respective lorry and the paddy.
Criminal Appeal Nos. 194 to 197/85 are filed by the respective accused in STC Nos. 52 to 55/84. Criminal Appeal Nos. 838 to 841 of 1986 are filed by private parties/owners of respective lorry and paddy which were directed to be confiscated in STC No. 52 to 55/84 respectively by the learned Special Judge under Essential Commodities Act, Thanjavur.
2. The accused in all the above said STC Nos. 52 to 55 of 1984 were charged under Clause 3(IA) of the Tamil Nadu Paddy (Restriction on Movement) Order, 1982 and also under O.4(1) of Tamil Nadu Essential Trade Articles (Regulation of Trade) Order, 1974 punishable under S. 7(1)(ii) of the Essential Commodities Act, 1955. The accused in the above cases, as per the case of the prosecution had purchased paddy without a valid permit and also attempted to remove the paddy in the respective lorries TMS 8244, TNO 6275, TNQ 2638 and TMP 1708 from Thanjavur District limits to Pudukotai District violating the Notification, as the paddy should not be procured within that belt area. The admitted case of the prosecution is that the accused did not possess valid permit for procuring paddy.
3. The prosecution has examined P.Ws. 1 to 3 and marked as many as 22 exhibits. The accused have examined nine witnesses on their side and marked Ex.D. 1. P.W. 1 Abdul Mazeed is the Sub-Inspector of Police, Food Cell, Crime Branch, Thanjavur. P.W. 2 Jeyakumar is the Assistant in the Office of the Collector, Thanjavur and P.W. 5 Raju is the Inspector of Police, Civil Supplies, C.I.D., Thanjavur.
4. On going through the evidence, it is seen that the accused in STC Nos. 52 to 55 of 1984 had loaded 170 bags, another 170 bags 180 bags and 104 bags of paddy in the respective lorries, namely, TMS 8244, TNO 6275, TNQ 2638 and TNP 1708. The case of the prosecution is that the paddy had been loaded for transport from 16/0 k.m. within Thanjavur District border for being removed to Budukkottai District and therefore, the accused have committed the offences as stated supra. It is admitted that these, accused did not possess any valid permit. But the defence is that they did not attempt to transport paddy and therefore, they have not committed any offence.
5. Learned Special Judge has considered the evidence of the prosecution witnesses and the defence in detail and ultimately found the accused guilty of the abovesaid orders punishable under S. 7(1)(a)(ii) of the Essential Commodities Act and convicted and sentenced them to undergo rigorous imprisonment for six months under each count and also sentenced to pay a fine of Rs. 500/-each in default to undergo rigorous imprisonment for three months. Learned Special Judge also confiscated the respective lorries and also the paddy bags loaded in each of them. The accused have filed the abovesaid appeals and the respective lorry owners have filed the another set of appeals referred to above.
6. Order 4(1) of the Tamil Nadu Paddy and Rice (Regulation of Trade) Order, 1974 reads as follows:
"Subject to the provisions of Clause (3) no person shall start afresh or carry on business as a wholesaler except under and in accordance with the terms and conditions of a licence issued in this behalf by the licensing authority"
Clause (3) of the said reads as follows:
" Government may, by notification direct that all purchasers of paddy and rice in any area shall be made by, or on behalf of the Government. On such notification coming into force, purchase shall not be made by any person except as an agent on behalf of Government" *
Provided that Government may exempt any class or category of purchases from the purview of such notification subject to such conditions as may be specified "Clause 3(1) of the Tamil Nadu Paddy (Restriction on Movement) Order, 1982" *
No person shall transport, move or otherwise carry or prepare or attempt to transport, move or otherwise carry, or aid or abet in the transport, movement or otherwise carrying of paddy outside the State by road/rail or otherwis
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