Bombay High Court
Shaikh Mustafa Shaikhh Mohiuddin vs The State Of Maharashtra And Anr on 8 March, 2017
Bench: S.S. Shinde
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 492 OF 2017
1. Shri Vijay Machindra Markad
Age : 38 years, Occ : Agriculture,
R/o Miri, Tq. Pathardi,
Dist. Ahmednagar.
2. Shri Mahavir Chainsukhlal Gundecha
Age : 32 years, Occ : Trade,
R/o Miri, Tq. Pathardi,
Dist. Ahmednagar.
..APPLICANTS
VERSUS
1. The State of Maharashtra
Through its Incharge Police Inspector,
Police Station, Sonai,
Tq. Newasa, Dist. Ahmednagar.
2. Budhanand Namdev Dhandore
Age : Major, Occ : Service,
Tahsil Office, Newasa,
resident of Newasa, Tq. Newasa,
Dist. Ahmednagar.
..RESPONDENTS
...
Advocate for applicants : Mr.V.D. Sapkal
APP for Respondent/State : Mr. P.G. Borade
...
WITH
CRIMINAL APPLICATION NO. 5099 OF 2016
Shaikh Mustafa Shaikh Mohiuddin
Age : 48 years, Occ : Agriculture,
R/o Indira Nagar, Pallam,
Dist. Parbhani.
..APPLICANT
VERSUS
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1. The State of Maharashtra
Through Police Station, Palam,
Dist. Parbhani.
2. Anant Gangadhar Deshpande
Age : 58 years, Occ : Service,
R/o Tahasil office Palam,
Tq. Palam, Dist. Parbhani.
..RESPONDENTS
...
Advocate for applicant : Mr.S.J. Salunke
APP for Respondent/State : Mrs. P.V. Diggikar
...
WITH
CRIMINAL APPLICATION NO. 6038 OF 2016
1. Kadirkhan S/o Sardar Khan Pathan
Age : 39 years, Occ : Business,
R/o Pathan Mohalla, Jintur,
District : Parbhani.
2. Sayyed Mukib S/o Sayyed Hakim
Age : 35 years, Occ : Agriculture,
R/o Bamni Plot, Jintur,
Dist. Ahmednagar.
..APPLICANTS
VERSUS
1. The State of Maharashtra
Through Police Station Officer,
Police Station, Charthana,
Dist. Parbhani.
2. The Tahsildar, Jintur
Tq. Jintur, Dist. Parbhani
3. Shri Tukaram Sahadu Sugandhe
Age : Major, Occ : Service,
(Naib Tahsildar, Jintur,
Dist. Parbhani)
R/o Tahsil Office, Jintur,
District : Parbhani. ..RESPONDENTS
...
Advocate for applicants : Mr.S.S. Rathi
APP for Respondent/State : Mr. P.G. Borade
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CORAM : S.S. SHINDE &
K.K. SONAWANE, JJ.
RESERVED ON : 21st February, 2017
PRONOUNCED ON : 8th March, 2017
JUDGMENT (PER S.S. SHINDE, J)
Rule. Rule made returnable forthwith
and heard finally with the consent of the
learned counsel appearing for the parties.
2. All these applications raise one and
the same legal issue, hence are heard
together and being disposed of by this common
judgment and order.
3. By way of filing these applications,
the applicants have prayed to quash and set
aside the respective first information
reports, which are registered against them
for the offence punishable under Sections 3
and 7 of the Essential Commodities Act.
4. The brief facts in Criminal
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Application no. 492 of 2017, are as under :
(a) The complainant Budhanad Namdev
Dhandore, resident of Newasa, Tq. Newasa,
Dist. Ahmednagar lodged the complaint on 17th
October, 2016 with Sonai Police Station
alleging that on the relevant day at about
9.00 p.m. police officers of Police Station,
Sonai apprehended Tata 608 vehicle bearing
registration No. 15/AG-5209. There were 160
gunny bags of rice in the said vehicle. The
gunny bags were bearing seal of State
Government. Apparently, those gunny bags were
meant for distribution from fair price shops.
The driver and cleaner of the vehicle were
having no documents of the said goods i.e.
bills of challans. Therefore, the police
informed said fact to the Supply Officer.
Accordingly, the Supply Officer visited the
spot, verified the goods and lodged the
report that goods in the vehicle were for
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distribution under public distribution scheme
and this is a case of black marketing.
(b) After receiving the said report,
Crime bearing No.II-46 of 2016 came to be
registered with Sonai Police Station, Dist.
Ahmednagar for the offence punishable under
Sections 3 and 7 of the Essential Commodities
Act (Hereinafter referred to as "the said
Act") on 17th October, 2016.
5. The brief facts in Criminal
Application no. 6038 of 2016, are as under :
(i) Respondent No. 3 had lodged report
with Charthana Police Station, Charthana,
District Parbhani for offences punishable
under Section 3 and 7 of Essential
Commodities Act on 12th July, 2016. In the
said report he had alleged that upon
telephonic instructions from Respondent No.2,
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he had been to vicinity of village Bamni.
There he noticed in one tempo 105 bags of
rice having brand of Tajmahal. Respondent
No.3 had suspected that said rice might be
meant for Public Distribution Scheme.
Accordingly, Crime No.96/2016 was registered
with Charthana Police Station, District
Parbhani, for the offences punishable under
Sections 3 and 7 of the Essential Commodities
Act, against driver of said tempo.
Accordingly, all 105 bags of rice were seized
and kept in Government Godown.
(ii) Present applicant no.1 had
approached to Respondent No.2 with
Representation on 13th July, 2016 along with
the copy of purchase invoice. It was
specifically submitted to Respondent No.2
that he had purchased the said rice from open
market on 10th July, 2016. It was also
pointed out that the said rice has nothing to
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do with Public Distribution Scheme and
accordingly prayed for return of goods.
(iii) The Police Inspector from Charthana
Police Station had made communications on 13th
July, 2016 and 20th July, 2016 to Respondent
No.3 herein, who is informant in First
Information Report. The Police had sought
specific report from the authority, whether
the rice is meant for Public Distribution
Scheme or not.
(iv) On 2nd August, 2016, Respondent No.2
had specifically communicated to Assistant
Police Sub Inspector of Charthana Police
Station that prima facie, the goods seized
does not appear to be from Public
Distribution Scheme. Accused Govind was
arrested in the crime on 6th October, 2016 and
during his custody, it appears that he had
named present applicants. Accordingly,
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present applicants are added in the crime.
Hence this Criminal Application.
6. The brief facts in Criminal
Application no. 5099 of 2016, are as under :
(I) The informant Naib Tahasildar alleged
that, 3 licensees of the fair price shop of
village Banwas, Tq. Palam, Dist. Parbhani
have not distributed the food grains to the
card holders in September 2015 and committed
misappropriation. The accused named in the
FIR No. 3036/2015, which was registered with
Palam Police Station, were arrested on 28th
April, 2016. On the basis of their
statements in police custody, the name of
applicant is appearing in remand report being
accused.
(II) It is the case of the applicant that, he
has no nexus with the alleged offence.
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Neither he is running any fair price shop nor
the resident of the village Banwas. Even if
though the allegations in the FIR are taken
against the applicant as it is, no offence is
made out and therefore, continuation of the
criminal proceedings against the applicant on
the basis of said FIR is sheer abuse of
process of law. Hence this Criminal
Application.
7. The learned counsel appearing for
the applicants submitted that, in the First
Information Reports there is no reference
whatsoever made about breach of any order,
that has been made under section 3 of the
Essential Commodities Act, 1955. It is
submitted that unless there is breach of any
order that has been made under section 3 of
the said Act, there would be no question of
any violation of such order to result in an
offence being committed under section 7 of
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the said Act. Learned counsel submits that a
specific ground has been raised by the
applicants in the present application that as
no order has been made under section 3 of the
said Act, therefore, there was no question of
its violation. The learned counsel appearing
for the applicants placed reliance on the
exposition of law by the Supreme Court in the
case of Prakash Babu Raghuvanshi V/s State of
M.P.1, the Division Bench of Bombay High
Court bench at Nagpur in the case of Rakesh
S/o Mahendrakumar Jain V/s The State of
Maharashtra2 and in the case of Dhanraj
Anandrao Mohod and another V/s State of
Maharashtra and another3.
8. The learned Additional Public
Prosecutor appearing for respondent/State, on
the other hand, submitted that as a prima
facie case had been made out against the
1 2004 AIR SCW 5334
2 2014 All M.R. (Cri.) 3144
3 2016 (2) Bom. C.R. (Cri.) 492
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applicants, the offence under section 3 of
the said Act read with section 7 thereof has
been registered. He further submitted that
statements of various ration card holders had
also been recorded, which reveal that there
is no distribution of food grains in
accordance with the relevant provisions/
procedure, therefore, he submitted that no
case is made out to quash the F.I.R.
9. Upon hearing the learned counsel
appearing for the parties and on perusal of
the averments in the applications, annexures
thereto and original record, we are of the
opinion that, the applications deserve to be
allowed for the reasons stated hereinbelow.
10. Admittedly, in all these cases,
there is no mention of contravention of any
order made under section 3 of the said Act,
and therefore, in absence of any order made
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under section 3 of which the contravention is
claimed, the offence under section 7 could
not be made out. The Supreme Court in the
case of Prakash Babu Raghuvanshi (supra) has
taken a view that for attracting the
provisions of offence punishable section 7 of
the said Act, the order under section 3 of
the said Act is essential. The Division Bench
of the Bombay High Court at Nagpur in cases
of Rakesh Mahendrakumar Jain (supra) and
Dhanraj Anandrao Mohod (supra) has also taken
a view that, for bringing an application
under section 7 of the said Act, it is
necessary to make reference in the first
information reports to any order having been
made under section 3 of the said Act being
violated. In absence of it being shown that
there was any order made under section 3 that
had been contravened, proceedings for the
offence punishable under section 7 would not
be tenable and continuation of such
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proceedings, therefore, would amount to abuse
of process of law.
11. As already observed, in the facts of
the present cases also, there is no reference
whatsoever in the first information reports
to any order having made under section 3 of
the said Act being violated and therefore,
the proceedings for offence punishable under
section 7 would not be tenable. Therefore,
the continuation of the proceedings based
upon the said first information reports would
amount to abuse of process of law. In the
circumstances, the applications deserve to be
allowed. Hence we pass the following order :-
ORDER
(i) Criminal Application No. 492/2017 is
allowed in terms of prayer clause `B'.
(ii) Criminal Application No.5099 of 2016
is allowed in terms of prayer clause `B'.
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(iii) Criminal Application No. 6038 of
2016 is allowed in terms of prayer clause
`C'.
11. Rule made absolute in above terms.
Accordingly, all these applications stand
disposed of.
(K.K. SONAWANE, J.) (S.S. SHINDE, J.)
...
sga
