Bombay High Court
Satish @ Raju Chokhelal Gupta vs The State Of Maharashtra Thr. ... on 11 January, 2021
Bench: Z.A. Haq, Amit B. Borkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPLICATION (APL) NO.555 OF 2018
APPLICANT: Satish @ Raju Chokhelal Gupta,
Aged about : 43 years,
Occ. : Business, R/o Sharda Nagar,
Amravati, Tq. and District : Amravati.
VERSUS
NON-APPLICANT: The State of Maharashtra,
Through D.G.P. Buldana &
Police Station Officer, Shivaji Nagar,
Khamgaon, Taluka-Khamgaon,
District - Buldana.
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Shri V. R. Deshpande, Advocate for applicant.
Shri S. D. Sirpurkar, Additional Public Prosecutor for non-
applicant.
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CORAM: Z.A. HAQ & AMIT B. BORKAR, JJ.
DATED : 11/01/2021.
ORAL JUDGMENT : (PER AMIT B. BORKAR, J.)
1. By this application under Section 482 of the Code
of Criminal Procedure, the applicant has challenged the
registration of the First Information Report No.107/2018
registered with the non-applicant - Police Station for the offences
punishable under Sections 3(2)(d) and 7 of the Essential
Commodities Act, 1955. (for short "the Act of 1955").
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2. The First Information Report came to be registered
against the applicant with the allegations that the wheat meant for
government distribution scheme was illegally transported for
selling it in black market. On 27/03/2018, truck owned by the
Appellant and another truck owned by Food Corporation of India
were found on National Highways. An inspection of both the
trucks was carried out. On the inspection of the vehicle, it was
revealed that the truck owned by the applicant was carrying wheat
to be distributed under the Antyodaya Scheme. It was also alleged
that 22 plastic bags having name of Madhya Pradesh State, Civil
Supplies Corporation Ltd. were found in the said truck. The First
Information Report was, therefore, registered against the Manager
of the Godown of Food Corporation of India, the transport
contractor and the driver under the provisions of Section 3(2)(3)
and Section 7 of the Act of 1955.
3. The applicant has, therefore, filed present
application challenging the registration of the First Information
Report. Shri V. R. Deshpande, learned advocate of the applicant
submitted that the prosecution has not been able to place on
record the copy of the order of which the breach is alleged in the
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First Information Report and therefore, the First Information
Report needs to be quashed and set aside. He further submitted
that the weight of wheat in the truck owned by the applicant on a
day prior to date of the registration of First Information Report
was the same. Therefore, he submitted that there is no transfer of
wheat from the truck owned by the Food Corporation of India to
the adjoining truck owned by the Applicant. He, therefore,
submitted that in the above circumstances, the prosecution against
the applicant cannot be continued.
4. The non-applicant has filed reply and stated that on
information received by the non-applicant - Police Station, the
officials of the non-applicant - Police Station reached the said spot
and caught driver of the truck of the applicant and the adjoining
truck owned by Food Corporation of India red-handed while they
were illegally trading essential commodities i.e. wheat. The
concerned Revenue Officer, therefore, lodged a complaint in the
form of First Information Report. It is stated in the reply that the
driver has admitted sale of essential commodities i.e. wheat to the
accused No.2. It is further stated in the reply that the investigation
is still under progress and after completion of investigation, if no
material is found against the applicant, he may not be prosecuted.
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It is, therefore, prayed that the present application deserves to be
quashed and set aside.
5. We have carefully considered the contents of the
First Information Report and the other material produced by the
applicant on record. We have also perused the reply filed by the
non-applicant. The submission on behalf of the applicant is that
the copy of the order contravention of which has been alleged in
the First Information Report for invoking the offences punishable
under Section 7 had not been placed on record. In our view, Full
Bench of this Court in Criminal Application (APL) No.731/2015
has categorically held that it is not necessary to mention a
particular provision or order issued under Section 3 of the Act of
1955 and non-mention of such order in the First Information
Report is not sufficient to quash the First Information Report. The
Full Bench of this Court in para No.23 of the said Judgment has
held as under :-
"23. In view of the above, the question referred for
consideration stated in paragraph-1 is answered in the negative
and it is held that mere non-mention of a particular provision of
an "Order" or "Order" issued under section 3 of the Act of 1955,
by itself is not sufficient to quash and set aside an FIR. It is held
that the State would be entitled to demonstrate before a Court
that an order issued under section 3 of the Act of 1955, indeed
exists and that there is contravention of clauses thereof, leading
to offence under section 7 of the Act of 1955. With these
observations the reference is disposed of. The applications shall
now be placed before the appropriate Bench for disposal".
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6. In our view, para No.23 of the judgment of Full
Bench of this Court squarely covers the contention raised on
behalf of the applicant. If the prosecution is not able to prove its
case by producing the copy of order, contravention of which led to
registration of the First Information Report, the Trial Court will
have to decide said issue on merits at the time of trial.
7. The second contention of the applicant is based
which was in reply to letter dated 27/03/2018 issued by the
Tahsildar, Khamgaon wherein Transport Manager, Buldhana,
Branch Khamgaon has communicated to the Tahsildar, Khamgaon
that the weight of the truck of the applicant was same on a day
prior to registration of the First Information Report and on the
date of First Information Report. In our view, the said letter does
not bear any date. It is not disputed by the Applicant that the
person who had written the letter at Page No.17 is co-accused
alongwith the present applicant. The said letter had been issued
by him after he was roped in as accused No.2 in the First
Information Report which is impugned in the present application.
Therefore, it will not be safe to rely upon the said letter for the
purpose of quashing the First Information Report registered
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against the applicant. It is for the prosecution to explain the
consequences of the said letter, if in the trial, said letter is duly
proved.
8. Since in the present application, the applicant has
not been able to prima facie prove that the First Information
Report does not disclose ingredients of the offence punishable
under Section 7 of the Act of 1955, it is not proper to quash the
First Information Report at this stage. On the reply filed by the
non-applicant, it is stated that if the prosecution is not able to get
the material in support of their case in the trial, the Applicant may
not be prosecuted and will not have to face the trial.
9. Taking into consideration the aforesaid
circumstances, we are of the view that at the threshold, the First
Information Report against the applicant, need not be quashed.
10. We, therefore, pass the following order :-
ORDER
The criminal application is dismissed in the above
terms.
[
JUDGE JUDGE
Choulwar
