Bola Vajreshwar Annayya Shetty vs State Of Mah And Ors
2017 Latest Caselaw 4946 Bom

                                                        Criminal W.P.No.281/2009
                                          1


              IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                               BENCH AT AURANGABAD


                 CRIMINAL WRIT PETITION NO.281 OF 2009



 Bola Vajareshwar Annayya Shetty
 Age 52 years, Occu. Business,
 R/o WALMI Quarters, Room No.4/1,
 Kanchanwadi, Aurangabad                           ...     PETITIONER
                                                   (Orig. Accused)
          VERSUS

 1.       State of Maharashtra
          through Commissioner of Police,
          Aurangabad
          (Copy served on the Public Prosecutor,
          High Court of Bombay,
          Bench at Aurangabad)

 2.       Shri B.N. Aghav,
          age major, Occu. Service,
          Assistant Police Inspector,
          Police Station, Osmanpura,
          Aurangabad

 3.       Shri Digambar s/o Shamrao Rathod,
          Age major, Occu. Service,
          Police Constable, Police Station,
          Osmanpura, Aurangabad             ...             RESPONDENTS

                                .....
 Shri Vijay Sharma, Advocate for petitioner
 Shri S.B. Pulkundwar, A.P.P. for respondent No.1./State
                                .....

                                 CORAM:       T.V. NALAWADE AND
                                              SUNIL K. KOTWAL, JJ.

                                 DATE :       24th July, 2017.


 JUDGMENT (PER SUNIL K. KOTWAL, J.) :

1. This Criminal Writ Petition is directed to quash the

Criminal W.P.No.281/2009

F.I.R. and consequent criminal proceedings bearing Crime No.II-

45/2008, dated 4/12/2008, registered at Police Station,

Osmanpura, Aurangabad for the offence punishable under

Sections 3 and 7 of the Essential Commodities Act, 1955.

Consequential relief of compensation of Rs.50,000/- from

respondent N.2 is also claimed for unlawful arrest of petitioner.

2. Facts leading to institution of this petition in brief are

that, Water and Land Management Institute (hereinafter referred

as "WALMI) is institute of Government of Maharashtra, wherein

training is imparted to the Government officers. Hostel and mess

facility is provided to the trainees. For the user of kitchen of the

miss, L.P. Gas cylinder along with regulators, pipes and gas

stoves are provided by the Institute to the firm of petitioner "Sai

Shruti Caterers", who is tender contractor to run the said mess

for the WALMI. The Institute is consumer to whom domestic L.P.

Gas cylinders have been provided by Bharat Gas Distributor. The

said domestic cylinders are the property of WALMI Institute. To

that effect, the letter dated 1/4/2002 has been issued by the

Institute. However, on 3/12/2008, respondent No.2, who is

A.P.I., Police Station, Osmanpura, Aurangabad, along with police

staff and panchas exerted raid in the mess of WALMI at about

8.30 p.m. and seized domestic L.P. Gas cylinders which were

used for cooking in the said mess. Respondent No.3 lodged

Criminal W.P.No.281/2009

report against the petitioner to Police Station, Osmanpura,

Aurangabad. In the result, abovesaid offence was registered

against the petitioner. In the result, petitioner was arrested and

he had to secure bail from Judicial Magistrate, First Class,

Aurangabad. On the application moved to District Supply Officer,

the seized cylinder and other articles were returned to the WALMI

Institute. Contention of the petitioner is that, the mess run by

WALMI Institute is an in-house activity for providing food to the

trainee Government officers and it is exclusively domestic

activity. Therefore, no criminal offence is made out against the

petitioner under the Essential Commodities Act. Accordingly,

petitioner prayed for quashment of F.I.R. and criminal

proceedings registered at Police Station, Osmanpura,

Aurangabad.

3. By filing reply affidavit, respondent No.2 opposed the

petition on the ground that the L.P. Gas cylinders were provided

only for domestic use, and petitioner cannot use those cylinders

for the purpose of cooking in the mess which is commercial

activity. The question of user of gas cylinders for commercial or

domestic purpose can be decided only at the time of trial.

4. Petitioner filed affidavit-in-rejoinder and submitted

that the seized L.P. Gas cylinders are of the WALMI Institute

Criminal W.P.No.281/2009

which is consumer and those were used for the Institute at the

instance of the Institute, and the mess run by the Institute is not

commercial activity. No food article is sold out to any third

person.

5. Learned Advocate for the petitioner has drawn our

attention towards affidavit of Shri Manoj Raghunath Awalgaonkar

who is the administrative officer of WALMI, Aurangabad, and

submitted that, in-house activity of WALMI to provide food in its

mess to the trainee officers cannot be termed as commercial

activity.

6. Learned A.P.P. for the State though tried to support

the respondents, he cannot put his thumb on any material which

indicates the seized gas cylinders were used for commercial

activity by the WALMI Institute.

7. On the other hand, affidavit submitted by the

administrative officer, WALMI is fully corroborated by copies of 6

gas cards, which indicate that, Bharat Gas Distributors has issued

these gas cards to provide 6 cylinders to WALMI for domestic

use. The in-house mess run by WALMI through contractor only

for the purpose of providing food to the Government officers

undergoing training at WALMI, cannot be termed as commercial

Criminal W.P.No.281/2009

activity. In the circumstances, no case is made out by

respondents to show that domestic gas cylinders were used by

the petitioner for commercial purpose. In the result, no offence

is made out against the petitioner under Sections 3 and 7 of the

Essential Commodities Act. We hold that, the prayer of the

petitioner to quash the F.I.R. and criminal proceedings registered

at Police Station, Osmanpura, Aurangabad deserves to be

allowed. It is informed by respondents that, during pendency of

this petition, charge sheet is filed against the petitioner before

Judicial Magistrate, First Class, Aurangabad. Therefore, the

entire criminal proceedings pending before the Judicial

Magistrate, First Class, Aurangabad deserves to be quashed.

8. However, in view of above discussed circumstances,

it cannot be said that respondents arrested the petitioner with

any malicious intention. Therefore, this is not a suitable case

wherein compensation can be awarded to the petitioner for his

detention in police custody. The prayer of the petitioner for

compensation cannot be allowed. Accordingly, we pass following

order :

ORDER

(i) Criminal Writ Petition No.281/2008 is allowed.

(ii) The F.I.R. No.45/2008, registered in Osmanpura

Criminal W.P.No.281/2009

Police Station, Aurangabad for offences punishable

under Sections 3 and 7 of the Essential Commodities

Act and the proceeding filed bearing Regular Criminal

Case No.457/2009, pending before Judicial

Magistrate, First Class, Aurangabad is quashed and

set aside.

        (iii)      Rule made absolute in those terms.




          (SUNIL K. KOTWAL)                      (T.V. NALAWADE)
              JUDGE                                    JUDGE



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