Shaikh Yunus S/O. Shaikh Ajijdada ... vs The State Of Maharashtra
2017 Latest Caselaw 7298 Bom

                                                              3869.17crapln.odt
                                           1


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

                     CRIMINAL APPLICATION NO.3869 OF 2017


          1. Shaikh Yunus s/o Shaikh Ajijdada,
          age 35 years, occu. Business,
          r/o Koli Bodkha, Tq. Paithan,
          District Aurangabad. 

          2. Dinesh s/o Haribhau Bagade,
          age 36 years, occu. Business,
          r/o Pachod, Tq. Paithan,
          District Aurangabad.           ... PETITIONERS.

                           VERSUS

          The State of Maharashtra.              ... RESPONDENT. 

                                        ...
                   Advocate for petitioners : Mr.D.S. Bharuka.
                  APP for the respondent / State : Mr.K.S. Patil.
                                        ...
                                        CORAM : V.L. ACHLIYA, J. 

                       JUDGMENT RESERVED ON :  06.09. 2017. 
                     JUDGMENT PRONOUNCED ON :  19.09. 2017. 

          JUDGMENT:

Rule. Rule, made returnable forthwith. By

consent, heard finally at the stage of admission.

2. By present application filed under section 482 of

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the Code of Criminal Procedure the petitioners herein

have challenged the order dated 10 th April, 2017 passed

by the Collector Aurangabad. By the impugned order

the Collector has directed to release the Truck in

question in favour of the petitioner No.1 on furnishing

Bank guarantee in the sum to the extent of 50% of

estimated value of the Truck. By the same order the

learned Collector, Aurangabad has ordered the sale of

rice seized, by public auction and deposit sale proceeds

in the Account of State Government. Being aggrieved,

the petitioners have preferred this application.

3. Before adverting to appreciate the submissions

advanced, it is useful to consider few facts leading to

filing of present application. On 20th July, 2016, on

receipt of information from its sources that the rice

meant for distribution through public distribution

system is being taken to Gujarat for sale in open

market in a Truck bearing registration No. MH-20-CT-

1579, the officer in charge of the Police Station, MIDC

CIDCO, Aurangabad intercepted the said Truck in

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squestion. Driver and Cleaner of said truck failed to

provide satisfactory answer to query made to them.

Hence, the truck was brought to police station and the

offence under section 3 and 7 of the Essential

Commodities Act, came to be registered against

petitioners Nos. 1 and 2 and two other persons. The

goods i.e. Rice lying in the trucks was unloaded in the

Government godown. Petitioner No.1 who claims to be

owner of the truck, filed application under section 457

of the Code of Criminal Procedure before the Court of

Sessions at Aurangabad for interim custody of said

Truck. Learned Additional Sessions Judge, Aurangabad

vide order dated 31.8.2016 rejected the application by

observing that under the provision of the Essential

Commodities Act, 1955 the Collector alone holds an

authority to release the vehicle in question. Being

aggrieved, petitioner approached to Collector,

Aurangabad, seeking custody of truck. Learned

Collector passed the order as referred above. Being

aggrieved, the petitioners have preferred this

application.

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4. Heard the learned counsel for petitioner and APP

for State. Perused the impugned orders and affidavit in

reply filed by Investigating Officer as well as officer from

Civil Supplies Department.

5. In nutshell, it is the contention of the petitioners

that no offence punishable under Section 3 r/w section

7 of the Essential Commodities Act is committed on

their part and prosecution lodged against them is gross

abuse of process of law. The goods i.e. rice seized by

the Investigating Officer was purchased by petitioner

No.2 in the name of his business concern "Hari Om

Traders" from Jai Anand Food Industries, MIDC, Dhule.

The goods was purchased on 19.7.2016. While the said

goods being in process of transportation to Gujrat, the

Investigating Officer intercepted the truck on suspicion

that the truck was carrying subsidized food grain

meant for distribution through public distribution

system. After registration of offence, the Investigating

Officer conducted the investigation. No incriminating

evidence found against them to prosecute under section

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3 read with section 7 of Essential Commodities Act.

6. Learned counsel for petitioner contended that it

was expected on the part of the Investigating Officer to

have verified the information furnished by the

petitioners before taking such drastic penal action. At

least before registering offence the Investigating Officer

should have verified the factual position. It is

contended that the entire action on the part of the

Investigating Officer is per se illegal, arbitrary and

colourable exercise of powers as a Police Officer. He

submitted that there is no iota of evidence to prosecute

the petitioners for offence punishable under section 3

read with section 7 of the Essential Commodities Act.

In support of submission advanced learned counsel has

referred and relied on decision of Apex Court in the

case of Kailash Prasad Yadav And Another Vs.

State of Jharkhand And Another reported in (2007)

3 SCC (Cri) 14 and Division Bench Judgment of this

Court in case of Dhanraj s/o Anandrao Mohod &

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Anr. Vs. The State of Maharashtra and Anr. (2016

ALL MR (Cri) 2208).

7. Learned APP has fairly conceded that there is no

evidence to show that good seized was meant for

distribution through Public Distribution System. He

submitted that there was no ill intention on the part of

investigating officer in seizing the goods. He submitted

that investigating officer in his say filed before learned

Collector has given no objection to release the truck to

it's owner.

8. If we consider the overall controversy then the

core question involved is whether there is any prima

facie evidence to show that the goods seized was meant

for distribution through public distribution system and

accused were found to be indulged into act of illegally

transporting such subsidized commodity for sale in the

open market. Since the petitioner No.2 has taken a

specific stand that the food article seized is not a

subsidized goods meant for distribution through public

distribution system, but same was purchased by him in

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the course of his business and he possesses licence to

carry such business and also produced documents of

purchase of goods before Investigating Officer. The

Investigating Officer as well as the officer from the

District Food and Civil Supply were directed to file

affidavits.

9. In the affidavit filed, the investigating officer has

categorically admitted that during the course of

investigation they have cross checked the information

supplied by the petitioners about purchase and

transportation of the goods. During the course of

investigation, it was revealed that said rice was

purchased by petitioner from Jai Anand Food

Industries, Plot No.G-30, Avdhan, MIDC Dhule. The

investigating officer recorded statement of Manager of

the said Firm. He has confirmed that rice in question

was sold to Hari Om Traders at Pachod, Taluka Pachod,

District Aurangabad vide Invoice No.37 dated

19.07.2016 (wrongly mentioned as 18.07.2016 in the

affidavit) and the same was loaded in the Truck

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bearing No. MH-18-M-9428 i.e. the truck in question.

The contents of para No.8 of additional affidavit dated

29.8.2017 filed by the investigating officer, read as

under :-

'' 8. I say and submit that, initially when the truck was passing on the Cambridge school by pass based upon the statement of the driver and the cleaner and based upon the receipts from Hari Om Traders, Pachod which was recovered from the driver, the Investigating Officer visited the merchant namely Hari Om Traders, Pachod. I say and submit that, in the investigation and from the information received from the Hari Om Trader, it was revealed that the said food grain rice were originally brought from the Jai Anand Food Industry, Avdhan, MIDC, Dhule. I say and submit that, accordingly the Investigating Officer visited the Jai Anand Industries, Dhule. I say and submit that, the statement of manager of Jai Anand Industry, Dhule was recorded by the Investigating Officer. According to his statement, food grain rice was sold to Hari Om Traders, Pachod on 18.10.2016 by invoice no.37. The goods were loaded in a truck bearing No.MH-18-M-9428. I say and submit that, the said details of the inward and outward is not available with him. I say and submit that, the copy of the said statement dated 18.10.2016 is annexed herewith and marked as EXHIBIT R-1."

10. In its earlier affidavit filed on 24.8.2017, the

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Investigating Officer has stated in para nos.5, 6, 7, 8

and 9 as under:

"5. The deponent say and submit that, on suspicious that, the said food grains (rice) were being carried, the deponent say and submit that, one Sk. Hakim Sk. Yakub who was the Driver on the said Truck and one Dattatraya Hatgal - Cleaner were also apprehended on the spot. The seizure panchanama was drawn. The Truck was also seized. The copy of seizure panchanama is annexed herewith and marked as Exh.R-1.

6. The deponent say and submit that, the Grain Merchant receipt of one Hari Om Traders was seized from the Driver. The copies of said receipts are annexed herewith and marked as Exh.R-2 collectively. The deponent say and submit that, the said receipts was from Hari Om Traders and Commission Agent, Pachod. The said receipt was dt.20.7.2016.

7. The deponent say and submit that, the statements of Police Constable who had accompanied during the patrolling are also recorded. The copies of statements of Police Head Constable Sanjay Mundale and Police Constable Vikrant Pawar are annexed herewith and marked as Exh.R-3 collectively. The deponent say and submit that, thereafter, immediately letters were given to the District Food Supply Department for ascertaining whether the seized rice was of public distribution system. The copy of said letter dt.21.7.2016 is annexed herewith and marked as Exh.R-4.

9. The deponent say and submit that, the food grains (rice) was referred to the Maharashtra

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State Public Health Services, Regional Public Health Laboratory, Aurangabad wherein the samples which were sent for analysis, the remarks of the same are as follows:

"The above submitted samples Ex-A and B conform to the standards of Rice as per Food Safety Standards (Food Products and Food Additives) Regulations 2011."

11. In the affidavit filed by official from District

Supply Office, it is clearly stated that the goods seized

not meant for distribution through public distribution

system. Para 8 of affidavit dated 29.8.2017 reads, as

under:

"8. The deponent says and submits that the opinion given by Food Grains Distribution Officer is annexed herewith and marked as EXHIBIT R-2. As r this letter prima facie the rice is not pertaining to public distribution system on the face value of rice.

Hence this affidavit."

12. Thus, if we consider the overall case of the

prosecution as against petitioners in the light of the

affidavits filed by the Investigating Officer as well as the

official from District Supply Office, there is no prima

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facie evidence to remotely suggest that the goods in

question meant for distribution through public

distribution system. So also there is no prima facie

evidence to show that the petitioners have violated any

order issued u/s 3 of the Essential Commodities Act.

Even in the FIR as well as the charge-sheet filed, there

is no reference as to violation of any order issued under

the provisions of section 3 of the Essential Commodities

Act. The goods was seized merely on suspicion that

subsidized food article meant for distribution through

public distribution system being illegally transported

for sale in the open market in violation of the provisions

of the Essential Commodities Act. During the course of

investigation, the Investigating Officer has cross

checked the information supplied by petitioner Nos.1

and 2 which was found to be correct.

13. Mr. Bharuka, learned Counsel for the petitioners

has referred and relied upon the decision of the Apex

Court in case of Kailash Prasad Yadav and another

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Vs State of Jharkhand and another1, wherein the

Apex Court has categorically held that the order of

confiscation to be made u/s 6-A of the Essential

Commodities Act can be passed only after reaching to a

clear finding as to violation of the order made u/s 3 of

the Essential Commodities Act. It is held that a valid

seizure is a sine qua non for passing an order of

confiscation of property. It is pointed out that neither

in the FIR nor the charge-sheet filed, there is reference

of violation of any order made u/s 3 of the Essential

Commodities Act. It is further pointed out that there is

no iota of evidence to show that the commodity seized

was meant for distribution through public distribution

system. In the light of overall facts of the case, the

learned Counsel submits that in absence of any

finding on the part of the learned Collector that the

commodity seized was meant for distribution through

public distribution system, the entire action on the part

of the District Collector is vitiated in law and the

impugned order passed by the learned Collector to

1 (2007) 3 SCC (Cri) 14;

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auction the goods and to credit the sale proceeds in the

Government account liable to be set aside.

14. In my view, the decision in the case of Kailash

Prasad Yadav and another (supra) is squarely

applicable in the light of facts and circumstances of the

instant case. In the instant case, there is categorical

admission on the part of the Investigating Officer as

well as officers from Civil Supply that there is no

evidence to show that the goods in question was meant

for distribution through public distribution system. So

also there is no violation of any order issued under the

provisions of section 3 of the Essential Commodities

Act mentioned in the F.I.R. In this view, the impugned

order 10.04.2017 passed by learned Collector,

Aurangabad as well as the order dated 31.8.2016

passed by learned Additional Sessions Judge-8,

Aurangabad dated 31.8.2016 deserves to be set aside.

15. Mr. Bharuka, learned Counsel for petitioners

further referred and relied upon the decision of the

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Division Bench of this Court in the case of Dhanraj s/o

Anandrao Mohod & Anr. Vs. The State of

Maharashtra & Anr. wherein, the Division Bench of

this Court has categorically held that in order to bring

section 7 into action, it is essential to show violation of

order made in exercise of powers under Section 3 of

the Essential Commodities Act on the part of accused.

In absence of reference in the FIR as to violation of any

order made u/s 3 of the Essential Commodities Act,

the proceeding filed u/s 7 of the Essential Commodities

Act is liable to be set aside. In my view, the decision in

the case of Dhanraj Mohod (Supra) is squarely

applicable to present case. The facts of the case in

hand are more or less identical to the facts of the case

referred. In para 5 of the judgment the court has

observed, thus:

"5. The present case stands on a better footing inasmuch as there is no reference whatsoever in the First Information Report to any order having been made under Section 3 of the said Act being violated. The specific averments made by the applicants in paragraph 4 of the application have not been specifically controverted. In that view of the matter, in

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absence of it being shown that there was any order made under Section 3 of the said Act that had been contravened, the proceedings for an offence punishable under Section 7 of the said Act would not be tenable. The continuation of these proceedings therefore would amount to an abuse of the process of law. In view of aforesaid, the application is allowed in terms of prayer clause (a) thereof with no order as to costs."

16. Thus, considering the overall facts of the case, the

admitted position emerges from the affidavit filed by the

Investigating Officer as well as the official from District

Supply Officer, Aurangabad that there is no evidence to

show that the goods in question were transported in

violation of any order issued under the provisions of

Section 3 of the Essential Commodities Act. In this

view, the impugned orders are liable to be set aside as

there is no prima facie material to show that the

accused have acted in violation of any order issued

under the prsovisions of section 3 of the Essential

Commodities Act. In absence of prima facie evidence to

show violation of any provision of Essential

Commodities Act, no bar operates u/s 6-E of the

Essential Commodities Act to entertain the application

seeking interim custody of the vehicle as well as the

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goods seized by Sessions Court. In this view, I am

inclined to allow the application and pass the following

order :

: ORDER :

i) The impugned order dated 10.04.2017 passed by the Collector, Aurangabad and the order dated 31.08.2016 passed by the Additional Sessions Judge-8, Aurangabad below Exh.1 in CRI.M.A. No.190/2016 are set aside.

ii) Petitioners are granted liberty to make appropriate application seeking custody of the vehicle as well as goods before the court concerned where charge-sheet is filed and proceeding is pending.

iii) In case, such application is made, the Court concerned is directed to decide the application as expeditiously as possible, within two weeks from the date of filing of such application. The application be decided on its own merit.

(iv) It is clarified that the observations made as above are made for limited purpose of deciding the present application and same shall not be treated as finding recorded by this Court as to

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merit of the case.

v) Rule made absolute in the above terms. Application stands disposed of in above terms.

( V.L. ACHLIYA, J. )

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