Bombay High Court
Kishor Bansilal Bidada And Anr vs The State Of Mah And Ors on 30 August, 2016
Bench: V.K. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 5510 OF 2011
1. Kishor s/o Bansilal Bidada,
Age 39 years, Occ. Business,
R/o. Lamjana, Taluka Ausa,
District Latur
2. Ratan Nandlal Bidada
Age 27 years, Occ. Business,
R/o. Lamjana, Taluka Ausa,
District Latur ...Applicants
versus
1. The State of Maharashtra
through P.S.O. P.S. Killari
Tq. Ausa, District Latur
2. Sachin Govind Pawar
Age 23 years, Occ. Labour
R/o. Budhoda, Tq. Ausa
District Latur
3. Sudhakar Bhagwan Jadhav
Age 26 years, Occ. Hamali,
R/o. Borfal, Tq. Ausa
District Latur
4. Kishor Eknath Kawale
(Deleted)
5. Gvoind Vishwanath Kale
(deleted)
6. Tukaram Dnyanoba Yadav
Age 28 years, Occ. Hamali,
R/o. Borfal, Tq. Ausa
District Latur
7. Ravi Sugriv Jadhav
Age 19 years, Occ. Labour
R/o. Ausa, Tq. Ausa
District Latur
8. Satish Dnyanoba Jadhav
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Age 30 years, Occ. Labour
R/o. Borfal, Tq. Ausa
District Latur ...Respondents
...
Advocate for Applicants : Mr. Sagar Killarikar Balaji L.
APP for Respondent No.1: Mr. A.R. Kale
.....
CORAM : V. K. JADHAV, J.
DATED : 30th AUGUST, 2016
ORAL JUDGMENT:-
1. Being aggrieved by the judgment and order of acquittal dated
28.3.2011, passed by the J.M.F.C. Ausa in S.T.C.C. No. 1113 of 2004
to the extent that the learned Judge has refused to pay sale proceeds of
confiscated goods to the petitioner though they are acquitted, the
applicants filed present criminal application.
2. Brief facts giving rise to the present criminal application are as
follows:-
a) On 19.5.2004, at about 2.15 p.m. a raid was conducted at
the godown of applicant No.1 at village Lamjana, in which 269
quintals of wheat amounting to Rs.2,16,800/- was seized by the
police. Accordingly, panchnama was drawn and on the basis of
report of P.S.I. Kolhe, crime No. 3012 of 2004 came to be
registered under the provisions of Sections 3 and 7 of Essential
Commodities Act, 1955. On 30.11.2005, the applicant had filed
an application before the Additional Collector, Latur contending
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therein that he is dealer and police falsely implicated him in the
said crime by attaching the said wheat bags from his godown.
However, the Additional Collector, Latur by order dated
31.1.2006 was pleased to reject the said application and further
directed the Tahsildar, Ausa to distribute the said seized 269
quintals of wheat, stored in Government godown to the card
holders under Public Distribution System and the sale proceeds
be deposited with the Government by Challan.
(b) Being aggrieved by the same, the applicant had preferred
a Revision before the Divisional Commissioner, Aurangabad
under Section 6(C) of the Essential Commodities Act.
However, the Divisional Commissioner by its order dated
3.4.2006 also rejected the said Revision. Being aggrieved by
the same, applicant No.1 has preferred an appeal before the
Minister, Food and Civil Supply and Consumer Protection,
Government of Maharashtra.
(c) Meanwhile, after due investigation, charge sheet came to
be filed before the court and the learned J.M.F.C. conducted trial
of summary criminal case No. 1113 of 2004. The prosecution
has examined in all six witnesses to substantiate the charges
levelled against the accused. Learned J.M.F.C. vide judgment
and order dated 28.3.2011, in the said case, acquitted all
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accused, including the present applicants. However, while doing
so, learned J.M.F.C. directed that the sale proceeds of
confiscated wheat shall be forfeited to the Government. Hence
this criminal application.
3. Learned counsel for the applicants submits that the prosecution
has examined in all six witnesses to substantiate the charges levelled
against them. All accused, including the present applicants, came to be
acquitted on the ground that the prosecution could not prove that the
said wheat bags belong to the Government and secondly, there is
contravention of any order in respect of food grains i.e. wheat, passed
by the Government under the provisions of Section 3 of Essential
Commodities Act. Even though the seizure panchnama is not proved
as the panch witnesses turned hostile, however, the prosecution has
examined the complainant P.S.I. Dhondiba Kolhe and police constables,
who were members of raiding party. The prosecution has duly proved
the contents of complaint and compliant is accordingly marked Exh.75
before the trial court. The complainant P.S.I. Kolhe, even in his
evidence before the court, on oath, has deposed that the said wheat
bags came to be seized from the godown of present applicant No.1 His
evidence on oath is duly corroborated by the contents of complaint
Exh.75. The approach of the trial court is erroneous and learned Judge
of the trial court has forfeited the said amount of sale proceeds to the
Government only for the reason that the prosecution has failed to prove
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the seizure panchnama before the trial court. In view of provisions of
clause (c) of sub-section (3) of Section 6-A of Essential Commodities
Act, particularly in the State amendment, in the trial, if person concerned
is acquitted in the prosecution instituted for contravention of the order in
respect of which an order of confiscation has been made, the sale
proceeds of such food grains shall be paid to the owner or the person
from whom it is seized. Even though in confiscation proceeding the
applicant could not prove his case to the satisfaction of the authorities,
however, as per the prosecution evidence itself, in this case, the fact
remains that the said quantity of food grains is seized from the
possession of the present applicant No.1.
4. Learned A.P.P. submits that seizure panchnama is not proved
before the trial court and therefore, it is not clear from whose
possession the said wheat bags came to be seized. Learned A.P.P.
submits that the applicants and other accused persons even suggested
the complainant P.S.I. Kolhe and other members of his raiding party
that no such godown is in existence and that nothing was seized from
the possession of the applicants and other accused persons. Learned
A.P.P. submits that the trial court has therefore, rightly forfeited the sale
proceeds. No interference is required. There is no substance in the writ
petition and same is liable to be dismissed.
5. On careful perusal of record and proceedings, it appears that
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seizure panchnama is not duly proved, as submitted by learned A.P.P.
The prosecution has examined P.S.I. Kolhe as P.W.4 and he has
deposed that on the date of incident, he had received information that
present applicant No.1 was in possession of certain quantity of wheat
and he intends to sale the said food grains in black market. He has
further deposed that alongwith the raiding staff, he went to the godown
of applicant No.1, where applicant No.1 was present alongwith other
accused persons, who were labourers. He has further deposed that
accordingly said quantity of wheat, kept in jute bags, was seized from
the possession of applicant No.1 under seizure panchnama and he
lodged the report against applicants and those 6 labourers. The
complaint thus is duly proved and marked at Exh.75. The complaint
corroborates his version before the court. Even the members of raiding
party i.e. constables have also deposed in the similar manner. Though
the applicant No.1 could not prove his title to the said food grains when
the confiscation proceedings were going on, however, the fact remains
that, he had opposed the said confiscation proceedings by producing
certain receipts before the authorities. Furthermore, it is clear from the
prosecution evidence that the said wheat bags came to be seized from
the possession of applicant No.1 from his godown.
6. In Section 6-A of Essential Commodities Act 1955, most
particularly sub-section (3), which reads as under:-
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"6-A. Confiscation of essential commodity.- (1) .......
(2) .....
(3) Where any essential commodity is sold as aforesaid, the
sale proceeds thereof, after deduction of the expenses of any
such sale, or auction or other incidental expenses relating
thereto, shall -
(a) where no order of confiscation is ultimately passed
by the Collector,
(b) where an order passed on appeal under sub-section
(1) of section 6-C so requires, or
(c) where in a prosecution instituted for the
contravention of the order in respect of which an order of
confiscation has been made under this section, the person
concerned is acquitted, be paid to the owner or the person from
whom it is seized."
7. In view of provisions of Section (3) clause (c), quoted above, it is
clear that if the essential commodity is sold as per the directions given
by the authority, who has passed the confiscation order, the sale
proceeds thereof, after deduction of the expenses of such sale, or
auction or other incidental expenses relating therein, shall in terms of
clause (c) when a prosecution instituted for the contravention of the
order in respect of which the said order of confiscation has been made
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under this section and the persons concerned is acquitted, the said sale
proceeds be paid to the owner or person from whom it is seized. The
applicant No.1 is acquitted for the charges levelled against him on the
ground that the prosecution failed to prove that the said wheat bags
belong to the Government and secondly on the ground that there is no
contravention of any order passed under Section 3 of Essential
Commodities Act. The learned Judge ought to have paid the said
amount of sale proceeds of confiscated goods as per the provisions of
Section 6-A (3) (c) (Maharashtra State Amendment) of Essential
Commodities Act, 1955 to applicant No.1.
8. In the light of above, criminal application is allowed in terms of
prayer clause "A" and disposed of.
( V. K. JADHAV, J.)
rlj/
