Bombay High Court
Shaikh Iftekhar S/O. Abdul Rauf ... vs The State Of Maharashtra on 24 November, 2017
Bench: S.S. Shinde
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.610 OF 2017
1) Shaikh Iftekhar s/o Abdul Rauf,
Age-32 years, Occu:Business,
R/o-Bazar Peth, Kannad,
Tq-Kannad, Dist-Aurangabad,
2) Kailash s/o Appa Kale,
Age-43 years, Occu:Driver,
R/o-Kankawali Nagar,
Tq-Kannad, Dist-Aurangabad,
3) Datta s/o Kashinath Baankar,
Age-30 years, Occu:Cleaner,
R/o-Bahirgaon, Tq-Kannad,
Dist-Aurangabad,
4) Ravindra s/o Laxman Mote,
Age-25 years, Occu:Driver,
R/o-Hiwarkheda, Tq-Kannad,
Dist-Aurangabad,
5) Naseer s/o Rasheed Pathan,
Age-21 years, Occu:Cleaner,
R/o-Hiwarkheda, Tq-Kannad,
Dist-Aurangabad.
...PETITIONERS
VERSUS
1) The State of Maharashtra,
2) The Secretary, Home Department,
Government of Maharashtra,
Mantralaya, Mumbai,
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3) The Police Head Constable,
City Chowk Police Station,
Chalisgaon, Dist-Jalgaon.
...RESPONDENTS
...
Mr.D.S. Bharuka Advocate for Petitioners.
Mr. Shashibhushan P. Deshmukh, A.P.P. for
Respondent Nos. 1 to 3.
...
CORAM: S.S. SHINDE AND
MANGESH S. PATIL, JJ.
DATE OF RESERVING JUDGMENT : 15TH NOVEMBER, 2017
DATE OF PRONOUNCING JUDGMENT: 24TH NOVEMBER, 2017
JUDGMENT [PER S.S. SHINDE, J.]:
1. Rule. Rule made returnable forthwith and
heard finally with the consent of the learned
counsel appearing for the parties.
2. This Writ Petition is filed with
following substantive prayer:
"(B) The Charge-sheet bearing R.C.C. No.22/2017
pending before the Judicial Magistrate, First
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Class, Chalisgaon in respect of Crime No.3054/2016
for the offences punishable under Sections 6[4]
and Section 9 of the Public Distribution System
[Control] Order, 2001 and under Sections 3 and 7
of Essential Commodities Act, may kindly be
quashed and set aside."
3. The background facts for filing the
present Petition as disclosed in the memo of the
Petition, in brief, are as under:
A). It is the case of the Petitioners that
Petitioner No.1 is running a business in food
articles by obtaining Food Licence issued by
Licensing Authority for sale of Wheat, Jawar,
Rice, Maize etc and licence is renewed up-to the
year 2019. One Shri Poonamchand Jaganlal Agrawal
had purchased wheat, rice GRA and rice common by
tender from Food Corporation of India, Nagpur,
which is Government undertaking. Poonamchand
Agrawal stored wheat and rice in his shop and
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godown at Kannad and accordingly informed
Tahsildar, Kannad by letter dated 16th May, 2016.
It is the further case of the Petitioners that
Petitioner No.1 has purchased rice common of
F.C.I. Tender weighing 160 Quintal 40 Kilogram
vide bill No.187 dated 22nd May, 2016 from
Poonamchand Agrawal and also purchased rice common
of F.C.I. Tender weighing 200 Quintal vide bill
No.188 dated 22nd May, 2016. The Petitioners have
placed on record the copies of said bills.
B) It is the further case of the Petitioners
that Petitioner No.1 sold 158 Quintal 34 Kg. rice
of F.C.I. tender to Gurukrupa Trading Company, Kim
(Gujrat) vide Bill No.157 dated 23rd May, 2016 and
it was loaded in Truck bearing Registration No.MH-
22-2955 of which Petitioner Nos.2 and 3 were
driver and cleaner respectively. It is submitted
that Petitioner No.1 also sold rice of F.C.I.
tender weighing 158 Quintal 30 Kg. to Seeta Agro
Industries, Sanand through bill No.158 dated 23rd
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May, 2016 and loaded the same in Truck bearing
registration No.MH-21-D-9895 on which Petitioner
Nos.4 and 5 were driver and cleaner respectively.
It is the case of the Petitioners that on 24th
May, 2016, while both the trucks were passing from
Chalisgaon road, near Toll Naka, police of
Chalisgaon City Chowk police station stopped both
the trucks and seized the rice and trucks only on
the suspicion that rice was of public distribution
system and did not allow the drivers and cleaners
to proceed further. The police head constable at
City Chowk Police Station, Chalisgaon registered
an offence vide Crime No.54 of 2016 for the
offences punishable under Section 6(4) and 9 of
the Public Distribution System (Control) Order,
2001 and under Sections 3 and 7 of the Essential
Commodities Act. It is the case of the Petitioner
that police investigated into the matter and
during entire investigation it was not found that
the seized rice was out of public distribution
system, still the police have filed charge-sheet
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before the J.M.F.C. Chalisgaon on 18th January,
2017 and the same was registered as R.C.C. No.22
of 2017 and the J.M.F.C. Chalisgaon passed an
order of issuing summons to the accused. Hence
this Petition is filed by the Petitioners, praying
therein to quash and set aside the said charge-
sheet.
4. Learned counsel appearing for the
Petitioners, referring to the copies of the bills,
submitted that Petitioner No.1 has purchased the
food articles including rice from one Poonamchand
Agrawal and those were sold to the traders namely,
Gurukrupa Trading Company and Seeta Agro
Industries. The rice bags were loaded in the
trucks for supply of the same to the above said
traders but the police had stopped the said trucks
alleging that the said rice bags were out of
public distribution system. It is submitted that
copies of said sale bills were handed over to both
the drivers for submitting the same to the
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purchasers. It is submitted that on application,
learned Magistrate released both the trucks and
also released the rice bags. It is further
submitted that the Petitioners filed Criminal Writ
Petition No.767 of 2016 before the High Court for
quashing the First Information Report. The said
Criminal Writ Petition came to be disposed of with
directions to the Investigating Officer to look
into the material collected during the
investigation including the documents produced by
the Petitioners, if any, and then to take
appropriate decision, whether to file the charge-
sheet or file a report under Section 169 of the
Code of Criminal Procedure. It is submitted that
the Petitioner has produced documentary evidence
including the relevant bills before the
Investigating Officer showing that the said rice
bags were not from the public distribution system.
However, the police proceeded to file the charge-
sheet without considering the documentary evidence
produced by the Petitioners.
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5. Learned counsel appearing for the
Applicants submitted that as per the provisions of
Public Distribution System (Control) Order, 2001
the police had no authority to make search and
seizure and as such the entire action of search
and seizure by police is illegal and the First
Information Report and consequent charge-sheet
lodged on the basis of said seizure is illegal and
liable to be quashed and set aside.
6. Learned counsel appearing for the
Petitioners, referring to the letter dated 20th
July, 2016 written by Tahsildar, Kannad to
District Supply Officer, Aurangabad, submitted
that, in pursuance to the offence registered
against the Petitioners regarding transportation
of rice from public distribution system, Tahsildar
Kannad has verified the stock in the Government
godowns at Kannad and Pishor and reported that
there was no difference in actual stock and the
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stock shown in the stock register and further
reported that the seized rice was neither from
Government godowns nor from fair price shops.
Learned counsel submitted that the continuation of
R.C.C. No.22 of 2017 before the J.M.F.C.
Chalisgaon is abuse of process of law and
therefore it is prayed that the charge-sheet filed
by the Chalisgaon police in Crime No.3054 of 2016
may be quashed and set aside. In support of his
submissions, learned counsel placed reliance upon
the exposition of law by the Supreme Court in the
case of Kailash Prasad Yadav and another vs. State
of Jharkhand and another1.
7. On the other hand, learned A.P.P.
appearing for the State has submitted that the
Petitioners were transporting the rice which was
from public distribution system and therefore the
police had seized the rice bags and the trucks.
After investigation, the police have filed charge-
1 (2007) 3 S.C.C. (Cri) 14
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sheet against the Petitioners. He submitted that
if the allegations in the First Information
Report, the statement of witnesses and the
material collected during the course of
investigation is considered in its entirety, the
alleged offences have been disclosed and the trial
can proceed on the basis of said material.
8. We have carefully considered submissions
of learned counsel appearing for the Petitioners,
and the learned APP appearing for the Respondents.
With their able assistance we have carefully
perused the grounds taken in the Petition,
annexures thereto, and also the other documents
placed on record. It is the case of the
Petitioners that the seized food articles were not
from the public distribution system. In support of
their contentions the Petitioners have placed on
record copies of purchase bills of food articles.
We have perused the copies of bills dated 22nd
May, 2016, which clearly show that Petitioner No.1
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has purchased the rice from one Poonamchand
Jaganlal Agrawal. The documents placed on record
clearly shows that said Poonamchand Agrawal had
purchased the food articles from Food Corporation
of India. Petitioner No.1 had purchased the food
articles from said Poonamchand Agrawal. The
Petitioners have placed on record bills of the
purchase of said food articles.
9. Learned counsel appearing for the
Petitioners invites our attention to the copy of
the letter dated 20th July, 2016 written by
Tahsildar, Kannad to District Supply Officer,
Aurangabad. Upon careful perusal of the said
letter, it reveals that in pursuance to the
offence registered against the Petitioners
regarding transportation of rice from public
distribution system, Tahsildar, Kannad has
verified the stock in the Government godowns at
Kannad and Pishor and reported that there was no
difference in the actual stock and the stock shown
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in the stock registers. Tahsildar, Kannad further
reported that the seized rice was neither from
Government godowns nor from fair price shops.
Thus, the Petitioners have proved valid custody of
the rice bags which were seized by the police.
10. The Supreme Court in the case of Kailash
Prasad Yadav and another vs. State of Jharkhand
and another, supra, in Para 5 and 6 held as
under:-
"5. Indisputably, confiscation of goods
and the vehicles and vessels carrying
the same amounts to deprivation of
property. Confiscation of an essential
commodity or a truck is permissible
only if the provisions of any order
made under Section 3 of the Essential
Commodities Act, 1955 (for short "the
Act") are violated. When a vehicle is
used for carrying an essential
commodity, it may be seized and
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ultimately directed to be confiscated
in terms of clause (c) of sub-section
(1) of Section 6-A of the Act.
Violation of an order made under
Section 3 of the Act, therefore, is a
precondition for passing an order of
confiscation.
6. The 2001 Order does not deal with a
matter dealing in wheat or
transportation thereof. "Fair price
shop" has been defined in clause 2(k)
of the 2001 Order to mean
"a shop, which has been licensed to
distribute essential commodities by an
order issued under Section 3 of the Act
to the ration card holders under the
Public Distribution System".
Clause 3 provides for identification of
families living below the poverty line.
Clause 4 provides for issuance of
ration cards. Clause 5 deals with scale
of issue and issue price. Clause 6
provides for the procedure for
distribution of foodgrains by Food
Corporation of India to the State
Government or their nominated agencies.
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Sub-clause (2) of clause 6 obligates
the fair price shopowners to take
delivery of stocks from authorized
nominees of the State Government to
ensure that essential commodities are
available at the fair price shop within
first week of the month for which the
allotment is made. Sub-clause (4)
thereof obligates the authority or
person who is engaged in the
distribution and handling of essential
commodities under the public
distribution system not to wilfully
indulge in substitution or adulteration
or diversion or theft of stocks from
central godowns to fair price shop
premises or at the premises of the fair
price shop. Explanation appended
thereto defines "diversion to mean
"unauthorized movement or delivery of
essential commodities released from
central godowns but not reaching the
intended beneficiaries under the Public
Distribution System".
Clause 9 provides for penalty. There is
no provision for search of a vehicle.
The power of search is confined to fair
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price shop or any premises relevant to
transaction of business of the fair
price shop. The power of such
authorities causing a search is
confined to sub-clause (3) of clause 10
of the 2001 Order to search, seize or
remove such books of accounts or stocks
of essential commodities where such
authority has reason to believe that
these have been used or will be used in
contravention of the provisions of the
Order."
11. Thus, keeping in view the exposition of
law as laid down by the Supreme Court in the case
of Kailash Prasad Yadav and another, cited supra
and taking into consideration the contents of the
First Information Report and statement of the
witnesses and other accompaniments of the charge-
sheet, we are of the considered view that even if
the allegations are read in its entirety and taken
as they are, the allegations would not attract the
ingredients of the offences under Sections 6(4)
and Section 9 of the Public Distribution System
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(Control) Order, 2001, so also under Sections 3
and 7 of the Essential Commodities Act, since the
food grains seized were validly purchased by
Petitioner No.1 and the bills in respect of the
same are placed on record. The food grains seized
were not from the Public Distribution System. As
already observed, Tahsildar, Kannad has stated
that the seized food grains were not from the
Government godowns or fair price shops. Tahsildar,
Kannad has further reported that he has verified
the stock in the Government godowns at Kannad and
Pishor and there was no difference in the actual
stock and the stock shown in the stock registers.
In that view of the matter, in our considered
view, continuation of further proceedings against
the Petitioners based upon the First Information
Report and consequential charge-sheet will be an
abuse of process of law, the chances of conviction
would be bleak and the same will be an exercise in
futility. Hence, we pass the following order:-
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O R D E R
(I) The Writ Petition is allowed in
terms of prayer clause (B) to the
Petition.
(II) Rule is made absolute in above
terms.
(III) The Writ Petition stands
disposed of, accordingly.
[MANGESH S. PATIL, J.] [S.S. SHINDE, J.]
asb/NOV17
