Bajirao Mathaji Gatkal vs The State Of Mah & Ors
2017 Latest Caselaw 7616 Bom

                                     1          WP No.96-2006.Jud.odt

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     BENCH AT AURANGABAD

               CRIMINAL WRIT PETITION NO.96 OF 2006

     Bajirao Mathaji Gatkal,
     Age - 60 years, Occu. Business,
     R/o Pachod, Taluka Paithan,
     District Aurangabad.                ...       Petitioner

             Versus

     1)      The State of Maharashtra,

     2)      The Police Sub-Inspector, 
             Local Crime Branch, Aurangabad,
             the Complainant of Crime No.II-41/05
             of Pachod Police Station,
             dated 11.11.2005.

     3)      The I.O. of Crime No.II-41/05
             of Pachod Police Station,
             dated 11.11.2005.

     4)      The Addl. Collector, 
             Aurangabad.

     5)      Bhanudas Devrao Lokare,
             Age - 40 years, Occu. Agriculturist,
             R/o Nath Nagar, Paithan,
             District. Aurangabad.       ...      Respondents

                                    ...
             Mr. Hemantkumar Pawar, Advocate for Petitioner
             Mr. S.J.Salgare, APP for Respondent-State
                                    ...

                               CORAM :  T.V.NALAWADE AND
                                        S.M.GAVHANE, JJ.

DATED : 27th September, 2017

JUDGMENT :-

1. The petition is filed to challenge the decision of the

Learned Additional Session Judge, Aurangabad in

Criminal Revision Application No.261 of 2005, by which,

the order made by learned Judicial Magistrate (First Class)

of granting interim custody of goods, essential

commodities, food grains meant for distribution under

Public Distribution System is set aside by the Sessions

Court. A relief is claimed to set aside the order made by

Collector of auction sale of the food grains. Relief is

claimed for quashing and setting aside the FIR given by

the public servant under the provisions of Essential

Commodities Act. Both the sides are heard.

2. The petitioner is a private businessman, dealing in

food grains. 839 Quintals of wheat and 262 Quintals of

rice came to be recovered from his godown on the

information that these food grains were meant for public

distribution System and they were illegally taken out of

that system for selling the food grain in the black market.

After the seizure, F.I.R. came to be filed and the crime at

CR. No.41 of 2005 came to be registered in Pachod Police

Station, for the offences punishable under Sections 3 and

7 of the Essential Commodities Act. Due to seizure of the

goods, application was moved under Section 457 of the

Criminal Procedure Code by the petitioner in the Court of

learned J.M.F.C. It appears that the learned J.M.F.C.

made the order of interim custody in favour of petitioner,

as it was not pointed out to the learned J.M.F.C. that

proceeding for confiscation under the provisions of the

same Act were started before competent authority i.e.

Collector on 16.11.2005, before making of the order by

learned J.M.F.C.

3. Due to aforesaid circumstances, the State

Challenged the order of interim custody made by learned

J.M.F.C. by filing aforesaid Revision. In view of the

provisions of Essential Commodities Act and the power

vested with the authority, the Collector under the said Act

and also the restrictions on the power of the learned

J.M.F.C. imposed by the same Act to make such interim

order, the Revision came to be allowed. In view of the said

provisions like Section 6-A etc. of the Essential Commodity

Act, it can be said that after starting of the confiscation

proceeding there was no power with the learned J.M.F.C.

to make the order of interim custody. Subjective

satisfaction of the competent authority in this regard is

necessary and only at the end of the trial of the case some

powers are again there to the criminal Court. Thus, the

order made by learned J.M.F.C. was illegal and that is

rightly set aside by the learned Sessions Court.

4. It is not disputed that the competent authority

issued notice to the present petitioner and after giving an

opportunity to the present petitioner, the order of

confiscation came to be passed. Under the provisions of

the same Act the order of confiscation can be challenged

in Sessions Court but the present proceeding does not

show that the said order was challenged by filing

appropriate proceeding, like an appeal in the Sessions

Court. Thus, it can be said that appropriate proceeding

ought to have been filed by the present petitioner in the

Sessions Court, but instead of doing that the order made

by Sessions Court in Criminal Revision is challenged in

the present proceeding. For the single reason, interference

is not possible in the order made by learned Judge of

Sessions Court.

5. So far as the relief claimed for quashing of F.I.R. is

concerned, it can not be said that there is no sufficient

material for going ahead with the investigation. Learned

APP submitted that after making investigation even

charge-sheet came to be filed in the said crime. Thus, it

cannot be said that false allegations are made or that

there is nothing against the petitioner on the basis of

which prosecution can be launched. Due to this

circumstances, this Court holds that the FIR cannot be

quashed.

6. In the result, petition stands dismissed. Rule stands

discharged. Interim relief, if any, granted is vacated.

          (S.M.GAVHANE, J.)                     (T.V.NALAWADE, J.)

                                        ...


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