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TMI Blog1976 (5) TMI 110X X X X Extracts X X X X X X X X Extracts X X X X ..... permits for the despatch of broken rice (raw, boiled) shown in their export permits ? 3. If the respondents understood what their permits meant, they could not, under the guise of these permits, transport any other kind of rice. It was their duty to abide by the terms of their permits, and to show, when proceeded against, that they did so. 4. Each permit shows : quantity permitted to be sent; the duration of the validity of the permit; the name of the consignor; the name of the station from which rice was to be despatched; the means of despatch (shown as by rail only ); the name and address of the consignee (shown as self ); the State to which the consignment was to be booked (shown as Kerala State), purpose of the consignment (shown as trade account). The permit was described as an export permit . The details mentioned above were given in a schedule, the permit was addressed to the Miller , and its operative part said : In exercise of the powers conferred under Clause 3 of the Southern States (Regulation of Export of Rice). Order, 1964 read with G.O.Ms. No. 2495 F A Dt. 17-10-1964 the Collector hereby permits the transport of rice products mentioned in the Schedu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e cases in accordance with law, after giving full opportunity to the respondents to object to the analysis which was to be carried out afresh in their presence. The District Judge did not consider the report of the Assistant Marketing Officer of Chitur, after an analysis carried out in the presence of the District Revenue Officer, to be a sufficient compliance with the requirement to give due opportunity to the respondents to show what the consignments contained. 7. It may be mentioned here that the reports upon which proceedings were commenced in respect of a very large quantity of rice had been filed by the Inspector of Police of the Vigilance Section of the Civil Supplies' Department. It was clearly mentioned in these reports that the rice which was seized by the police in the course of its transit in a number of wagons of a goods train proceeding from Andhra Pradesh to Calicut in Kerala State was not broken rice . The respondents are regular Millers whose business it is to know the varieties and the nomenclature of various types and qualities of rice. They could not, therefore, be ignorant of what was the case against them. Moreover, when the cases were actually remande ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... self incorrect. On the other hand, in answer to one of the questions in cross-examination, the Assistant Director of Marketing replied : I agree that any grain which is less than 3/4th of the whole grain is a broken. According to Serial Grading Rules, 1966, rice includes brokens, but it is classified separately. This meant that the respondents knew, and, therefore, suggested that the test applied by the Asstt. Director, Marketing that any grain less than 3/4th of the whole length was to be deemed as broken , was correct. The cross-examination was directed towards showing that, accepting this test, known to both sides, the consignment was of broken rice . 13. It is true that the Assistant Director, in his evidence, admitted that he had not actually measured a whole grain. He said that he had adopted the method of differentiation by looking at the grains with the naked eye and by picking them up with his hand using his own fingers. He also admitted that, in ten out of the 50 samples he had analysed, the percentage of brokens in the analysis conducted in 1973 was less than that of 1971 from 2 to 10% but in others it was greater. The Revenue Officer, after a careful consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the lower Court's orders, than the one I have already indicated above. Hence, with the abovementioned notification of the orders of the Revenue Officer by adding 2% for foreign matter to the amount released as equivalent of broken rice , the respondents' appeals were dismissed by the Sessions' Judge on 20th November, 1974. 16. Both sides filed revision applications. The High Court had before it two sets of Revision applications. One of these was by the State of Andhra Pradesh against that part of the order of the learned Sessions' Judge by which he held that the Revenue Officer had no jurisdiction, after the remand order, to order confiscation of the whole quantity of rice. The State claimed the price of the whole of the seized consignment. The other set of revision applications before the High Court was of the respondent millers against the affirmations of the orders of the Revenue Officer. The respondents submitted that no part of the consignment was liable to be confiscated as it was not proved that it was not broken rice. They, therefore, urged that they should get the price of the whole quantity sold. 17. The High Court also went into the history ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce is to accept that a part includes the whole, if the whole includes a part, it necessarily means that the part cannot possibly be equated with the whole. The natural, and, indeed, the only reasonably open logic would be : if the whole includes a part, nothing which is merely a part of the whole could be equated with the whole, we think that the High Court misdirected itself seriously by accepting an obviously fallacious reasoning on this question. 20. The High Court said : By merely establishing that the goods are not broken rice, no offence or contravention is committed. It must further be established that the goods are rice in which case only there will be contravention of the control orders as the rice millers were not exporting the goods under permits issued for export of rice. Having regard to the uncertainty as to what the balance material other than the brokens contained in the samples, it is not possible to say with any assurance that the rice millers have contravened the control orders by attempting to export rice. It went on to add : It may be said that having regard to the circumstances of the case it is reasonable to assume that the rice millers have delib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the Court with regard to it. But suffice it to say that the fact remains that those two officers certified the materials to be broken rice. 22. A surprising conclusion of the High Court, which conflicts with the earlier conclusion that there was an attempted transport of rice which would contravene the Regulation order, was stated as follows by the High Court : The rice millers were having the permits for exporting BROKEN RICE and they were not having any permits for exporting RICE. Even assuming that the goods which the rice millers were transporting were not broken rice, it is not enough, to prove the contravention, to show that the goods they were transporting were not broken rice. It must be proved that the goods which the rice millers were exporting were rice for which they have no permits. If the goods which the rice millers were transporting could neither be said to be broken rice nor rice, there would be no contravention in either of which case no permits will be necessary under the control orders. The consequences of the contravention of the control orders being penal in nature, the rice millers cannot be penalised by confiscating the goods on uncertain ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ared that they had deliberately mixed whole rice with broken rice, because, unlike the situation in Andhra Prdesh, broken rice sells at a higher price in Kerala than it does in Andhra Pradesh. If this had been the correct state of affairs, it would have been reasonable for the Millers to transport broken rice to Kerala, where it fetches a higher price, and keep whole rice which sells at a higher price in Andhra Pradesh, for sale in their own State. 28. Apart from this obvious flaw in the reasoning of the High Court, it is difficult to understand how the High Court could act on such an assumption about relative prices. It thought it could take judicial notice of such a state of prevailing prices of rice in the two States. It was certainly not a fact commonly or generally known to people that broken rice fetches a much higher price in Kerala than even whole rice. Such as assertion has to be proved to be correct. It was unreasonable to assume that, even if that was so, the millers of Andhra Pradesh would be so anxious to cheat the purchasers in Kerala as to deliberately mix some whole rice with broken rice instead of selling the whole rice in Andhra Pradesh and broken rice in Keral ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgrains and oilseeds as applicable to the descriptions of rice and broken rice. These terms, as used in the Hand-book, must have been well understood by the Millers. The Foreword to the Hand-Book says that it contains instructions based on practice followed in this country for many years by the Directorate of Marketing and Inspection. The Hand-Book is an official publication. It could be looked into to find out the accepted practice and tests employed by the Assistant Director. As already observed, the Assistant Director was cross-examined on matters contained in the Hand-Book. It was not suggested to him that the Hand-Book did not contain correct information. 33. At page 8 of this Hand-book, we find : Broken Rice --In addition to the classes mentioned above broken rice forms a class by itself as it is a bye-product of rice milling. It has been classified into two groups, viz., fine brokens and common brokens. Fine brokens cover the brokens of long slender and scented varieties of rice and common brokens over the rest . At page 6, we find : Brokens.--Brokens shall include pieces of rice kernels which are less than 3/4th of the whole kernel. Pieces smaller than l/4th of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by Mr. Sachin Chaudhari, on behalf of the Millers, is that no rice in the course of Milling can really remain whole or unbroken in the sense that the whole length of it will be preserved. He contended that, in that sense, every grain must be broken to some extent. If that be the correct position, we think that the test laid down in the Hand-book on Grading of Foodgrains and Oilseeds, issued by the Directorate of Marketing and Inspection, compiled by the Ministry of Agriculture of the Govt. of India, is based on sound knowledge of what actually happens to grains of rice in the course of milling. 37. Still another argument was that it is impossible to determine with the naked eye whether a gram of rice was above or below 3/4th its normal length. We think that this would not be a difficult task at all for an expert in the line as an Asstt. Director of Marketing could be deemed to be. Indeed, even with his naked eye, any person can make out, by looking at the two ends of a grain, how much of a grain of rice appears to be broken. As we know, a grain of rice is thicker in the middle and toppers at each end. It is not like a cylinder with a uniform diameter throughout. From its s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Of course, these different percentages may lead to the inference that some broken rice had been deliberately introduced unevenly between rice found in different bags. But, once the principle is accepted that it is only the rice not covered by the permits which, under the orders of the Court, was to be confiscated, these variations do introduce an element of difficulty in determining precisely what that amount was. Section 6A of the Act, however, says that the Revenue officer (who exercised the powers of the Collector), if satisfied that there has been a contravention of the order , that is to say, the Control Order, may order the confiscation of the essential commodities seized . It is arguable that the power is there to confiscate whatever essential commodity may have been seized for the purposes of proceeding against the person who has contravened the Control Order, yet, it cannot be denied that this power is discretionary. 41. Therefore, we do not propose to interfere with the order of the learned Sessions' Judge, to the effect that, as the Revenue Officer's order releasing the seized rice to the extent of about 12% had become final, it should not be interfered wit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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