Bombay High Court
Age 35 Years vs The State Of Maharashtra on 25 November, 2011
Bench: A. H. Joshi, A.M. Thipsay
1
CRIMINAL WRIT PETITION NO.:493/2011 GROUP
IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT
AURANGABAD
APPELLATE SIDE, CRIMINAL JURISDICTION
CRIMINAL WRIT PETITION NO.493, 494, 495, 496, 497, 498 and
501 : OF 2011
***
CRIMINAL WRIT PETITION NO.: 493 OF 2011
Ashish Jagdishprasad Sharma
Age 35 years, Occ. Business
R/o B-9, Giri Tara Arcade,
Shivaji Nagar, Aurangabad. ..Petitioner
Versus
1. The State of Maharashtra
2. The Police Station Incharge
Police Station, Gondi, Taluka
Ambad, District Jalna.
3. Bhanudas Wamanrao Pimple
Police Constable,
Office of Superintendent
of Police, Jalna. ..Respondents
WITH
CRIMINAL WRIT PETITION NO.494 OF 2011
Ashish Jagdishprasad Sharma
Age 35 years, Occ. Business
R/o B-9, Giri Tara Arcade,
Shivaji Nagar, Aurangabad. ..Petitioner
Versus
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2
CRIMINAL WRIT PETITION NO.:493/2011 GROUP
1. The State of Maharashtra
2. The Police Station Incharge
Police Station, Gondi, Taluka
Ambad, District Jalna.
3. Sachin Kamalaji Fad,
Police Head Constable,
Office of Superintendent
of Police, Jalna. ..Respondents
WITH
CRIMINAL WRIT PETITION NO.495 OF 2011
Ashish Jagdishprasad Sharma
Age 35 years, Occ. Business
R/o B-9, Giri Tara Arcade,
Shivaji Nagar, Aurangabad. ..Petitioner
Versus
1. The State of Maharashtra
2. The Police Station Incharge
Police Station, Gondi, Taluka
Ambad, District Jalna.
3. Shivaji Kisanrao Potare,
Police Head Constable,
Office of Superintendent
of Police, Jalna. ..Respondents
WITH
CRIMINAL WRIT PETITION NO.496 OF 2011
Ashish Jagdishprasad Sharma
Age 35 years, Occ. Business
R/o B-9, Giri Tara Arcade,
Shivaji Nagar, Aurangabad. ..Petitioner
Versus
1. The State of Maharashtra
2. The Police Station Incharge
Police Station, Gondi, Taluka
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3
CRIMINAL WRIT PETITION NO.:493/2011 GROUP
Ambad, District Jalna.
3. Devidas Ruplal Pawar,
Police Sub Inspector,
Special Squad,
Office of Superintendent
of Police, Jalna. ..Respondents
WITH
CRIMINAL WRIT PETITION NO.497 OF 2011
Ashish Jagdishprasad Sharma
Age 35 years, Occ. Business
R/o B-9, Giri Tara Arcade,
Shivaji Nagar, Aurangabad. ..Petitioner
Versus
1. The State of Maharashtra
2. The Police Station Incharge
Police Station, Gondi, Taluka
Ambad, District Jalna.
3. Bhagwat Bapurao Harischandre,
Police Head Constable,
Office of Superintendent
of Police, Jalna. ..Respondents
WITH
CRIMINAL WRIT PETITION NO.498 OF 2011
Ashish Jagdishprasad Sharma
Age 35 years, Occ. Business
R/o B-9, Giri Tara Arcade,
Shivaji Nagar, Aurangabad. ..Petitioner
Versus
1. The State of Maharashtra
2. The Police Station Incharge
Police Station, Gondi, Taluka
Ambad, District Jalna.
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4
CRIMINAL WRIT PETITION NO.:493/2011 GROUP
3. Vitthal Laxman Solunke,
Police Head Constable,
Office of Superintendent
of Police, Jalna. ..Respondents
WITH
CRIMINAL WRIT PETITION NO.501 OF 2011
Ashish Jagdishprasad Sharma
Age 35 years, Occ. Business
R/o B-9, Giri Tara Arcade,
Shivaji Nagar, Aurangabad. ..Petitioner
Versus
1. The State of Maharashtra
2. The Police Station Incharge
Police Station, Gondi, Taluka
Ambad, District Jalna.
3. Shaikh Raheboddin Shaikh
Ekramoddin, Circle Officer,
Ambad, Tahsil Office, Ambad
District Jalna. ..Respondents
...
Shri Amol N.Kakade, Advocate for petitioners
Shri D.V.Tele, APP for respondent Nos.1 and 2
Respondent No.3 in W.P. Nos.493, 494, 497, 498 and
501 - Served and
Respondent No.3 in W.P. Nos.495, 496 of 2011 -
Unserved.
***
CORAM: A. H. JOSHI AND
A. M. THIPSAY, JJ.
DATED:- 25th NOVEMBER, 2011.
JUDGMENT [PER A.H.JOSHI, J.]:-
1. Rule. Rule is made returnable forthwith, with
the consent of parties.
CRIMINAL WRIT PETITION NO.:493/2011 GROUP
2. Heard learned counsel for the respective
parties.
3. By these petitions, the petitioners have
challenged F.I.R. Crime No.I-81, No.I-80, No.I-83,
No.I-79, No.I-82, No.I-84 and I-66 of 2011
registered with Gondi Police Station in district
Jalna.
4. The prayer for quashing is based on various
grounds.
5. The facts which are the basis of the petition
are summarised as follows:
(a) The petitioner, is a contractor, who has
secured the contract for lifting minor
mineral-sand from the river-bed of Godawari,
had assigned the transit permit for lifting
and taking away the sand.
(b) The motor vehicles carrying the sand were
suspected to carry sand in excess of the
volume in terms of cubic meters than
mentioned in the transport permit.
CRIMINAL WRIT PETITION NO.:493/2011 GROUP
(c) In order to crystalise fact from the
suspicion, the prosecuting authorities got
the weighment of the vehicles done and found
that the weight of sand contained in the
vehicles in terms of kilograms, was in excess
of the volume in terms of cubic meters
mentioned in the transport permit.
(d) Allotment of sand is on the basis of
volume in cubic meters and lifting is also to
be done on volume component. The sand which
was being transported was liable to be
measured by reckoning exact volume, but was
speculated on the basis of weight in terms of
kilograms.
(e) In the process of investigation, the
charge sheet has been filed in most of the
cases accusing the applicant of the offence of
theft etc. The vehicles carrying the sand
have been released on bond.
6. We had queried the Investigating Officer about
quotient, if any for converting weight into volume
in terms of cubic meters.
7. The Investigating Officer has filed affidavit
answering the query and has stated that it is not
possible to arrive at the figure of exact volume in
terms of cubic meters of sand taken by the accused
CRIMINAL WRIT PETITION NO.:493/2011 GROUP
persons, based on measurement of weight.
8. Due to release of motor vehicles carrying the
sand, at present no evidence is available with the
prosecution for enabling the investigating agency
to measure the volume of the sand which was
suspected to be in excess of the permit. Thus, the
evidence as regards excess volume has ceased to
exist due to act of accused in applying for return
of property, and the order of release thereof.
9. Now it is obvious that it is impossible by use
and aid of any known process to prove the
imputation that excess volume of sand, in terms of
cubic meters was taken by the accused. More over,
it is admitted by the prosecution that no parameter
or quotient is available for arriving at exact
volume in terms of cubic meters by converting from
the weight of the sand found in the vehicle.
10. In the result, it is obvious that the
conclusion of trial emerging from the F.I.Rs.
CRIMINAL WRIT PETITION NO.:493/2011 GROUP
subject matter is bound to lead to acquittal.
Every further exercise in the process of trial
would be futility. We therefore see no reason to
permit the F.I.Rs. and all further processes to
remain on record.
11. We cannot part with this judgment without
recording our concern about the casual manner in
which the revenue authorities as well as Police
Officer are dealing with the serious matter
pertaining to smuggling/theft/illegal extraction of
sand.
12. On one hand, the valuable resources of sand is
being eroded exploitatively as well State Treasury
is robbed. The State Government, therefore, should
consider the aspect as to the remedial measures
required to be taken by the State for reconsidering
the manner and procedure to be adopted for
measuring the sand at the time of sale by use of
volume of sand in terms of cubic meters of sand.
The State may have to permit due allowance i.e.
percentage such as 5 to 10%, for variation in the
weight due to humidity, and the sand may have to be
CRIMINAL WRIT PETITION NO.:493/2011 GROUP
sold on weighment basis i.e. tonnage.
13. The sale of sand by use of volume as basis
leaves innumerable and voluminous loopholes. We
hope and expect that the State Government should
take measures, to overcome these loopholes
urgently. We hope and expect that this exercise
would be done expeditiously.
14. We, therefore, consider that this aspect
should be brought to the notice of the Additional
Chief Secretary, Revenue & Forest Department
(Revenue) and he should issue appropriate direction
in order to avoid further smuggling/theft etc. of
the sand.
15. We direct learned Public Prosecutor to
transmit copy of this order to the Principal
Secretary, Home Department to enable the concerned
to take suitable action corresponding to the
actions by Revenue Department.
16. We, therefore, quash the F.I.R. and other
CRIMINAL WRIT PETITION NO.:493/2011 GROUP
proceedings furtherance thereto in terms of prayer
clause (B) in all petitions.
Rule is made absolute accordingly.
[A. M. THIPSAY, J.] [A. H. JOSHI, J.]
Dated:25/11/2011.
ans/493group
CRIMINAL WRIT PETITION NO.:493/2011 GROUP
CRIMINAL WRIT PETITION NOS.:493, 494, 495, 496, 497, 498 and
501 : OF 2011
Date of decision: 25th NOVEMBER, 2011.
For approval and signature
THE HONOURABLE SHRI JUSTICE
A. H. JOSHI
THE HONOURABLE SHRI JUSTICE
A. M. THIPSAY.
Whether Reporters of local papers ... Yes
may be allowed to see the judgment?
To be referred to the Reporter or not? ... Yes
Whether Their Lordships wish to see ... No
fair copy of the judgment?
Whether this case involves a substantial... No
question of law as to the interpretation
of the Constitution of India, 1950, or any
order made thereunder?
Whether it is to be circulated to the ... No
Civil Judges?
Whether the case involves an important ... Yes
question of law and whether a copy of
the judgment should be sent to Nagpur,
Goa and Bombay offices?
[G. F. ANSARI]
PRIVATE SECRETARY TO THE
HONOURABLE JUDGE
