Bombay High Court
Bhagwan S/O Namdeo Dawkhar vs The State Of Maharashtra And Anr on 21 March, 2017
Bench: S.S. Shinde
2.17appln(1)
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 2 OF 2017
Bhagwan S/o Namdeo Dawkhar
Age : 33 years, Occ : Driver,
R/o Bhiwandi Bodkha, Tq. Ambad,
Dist. Jalna.
..APPLICANT
VERSUS
1. The State of Maharashtra
Through Police Station, Ambad,
Dist. Jalna.
2. Rameshwar S/o Bhagujirao Khanal
Age : 43 years, Occ : Service,
R/o Police Station, Ambad,
Dist. Jalna.
..RESPONDENTS
...
Advocate for applicant : Mr.S.J. Salunke
APP for Respondent/State : Mr. M.M. Nerlikar
...
CORAM : S.S. SHINDE &
K.K. SONAWANE, JJ.
DATE : 21st 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. By way of filing this application,
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the applicant has prayed to quash and set
aside the first information report
No.3031/2016, which is registered against him
with Police Station, Ambad for the offence
punishable under Sections 3 and 7 of the
Essential Commodities Act.
3. The brief facts, leading to file the
present Criminal Application, are as under :
(a) The informant is the Police Inspector
attached with Police Station Ambad, Dist.
Jalna. He received the information that, the
commodities of public distribution system are
getting transported for black marketing.
Accordingly the police persons made necessary
arrangements to seize the said commodities.
Thereafter, they gave signal to stop the
vehicle, which was driven by the applicant.
Thereafter, they made necessary enquiry with
the applicant and on enquiry, the applicant
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stated that, the commodities i.e. wheat and
sugar which are in tempo, are of the fair
price shop.
(b) The police seized the commodities worth
of Rs. 33,500/- with tempo. On information
of respondent No.2, the crime came to be
registered with Police Station, Ambad,
Dist.Jalna, for the offence punishable under
sections 3 and 7 of the Essential Commodities
Act, 1955(Hereinafter referred to as "the
said Act").
(c) The applicant is not running any fair
price shop. Even none of his family member
is licensee of any fair price shop. The
alleged tempo is belonging to one Durgadas
Devidas Dharphal, R/o Ganpati Galli, Ambad.
The applicant is the driver and running the
tempo as per directions of his employer. He
was neither aware about the nature of food
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grains nor involved himself in black
marketing and as per say of his employer, he
carried the food grains to Ambad.
4. The learned counsel appearing for
the applicant submitted that, in the First
Information Report 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
the said Act. Learned counsel submits that a
specific ground has been raised by the
applicant 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
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for the applicant 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.
5. 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
applicant, the offence under section 3 of the
said Act read with section 7 thereof has been
registered, therefore, he submits that, the
application for quashing F.I.R. may not be
entertained.
1 2004 AIR SCW 5334
2 2014 All M.R. (Cri.) 3144
3 2016 (2) Bom. C.R. (Cri.) 492
2.17appln(1)
6. Upon hearing the learned counsel
appearing for the parties and on perusal of
the averments in the application, annexures
thereto and original record, we are of the
opinion that, the application deserves to be
allowed for the reasons stated hereinbelow.
7. Admittedly, in this case, 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 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 under
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
2.17appln(1)
(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 report 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
proceedings, therefore, would amount to abuse
of process of law.
8. As already observed, in the facts of
the present case also, there is no reference
whatsoever in the first information report 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,
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the continuation of the proceedings based
upon the said first information report would
amount to abuse of process of law. In the
circumstances, the application deserves to be
allowed. Hence we pass the following order :-
ORDER
(i) The Application is allowed in terms
of prayer clause `B' and the same stands
disposed of accordingly.
(ii) Rule made absolute in above terms.
(K.K. SONAWANE, J.) (S.S. SHINDE, J.)
...
sga
