Bombay High Court
Nareshbhai S/O Revabhai Patel vs The State Of Maharashtra, Thr. ... on 3 September, 2021
Bench: V. G. Joshi
Order 0309aba484.21
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION [ABA] NO. 484/2021.
Nareshbhai Revabhai Patel
-VERSUS-
The State of Maharashtra, through P.S.O. Kelwad, Nagpur Rural, Nagpur.
CRIMINAL APPLICATION [ABA] NO. 486/2021.
Akhirajbhai Motibhai Patel
-VERSUS-
The State of Maharashtra, through P.S.O. Kelwad, Nagpur Rural, Nagpur.
CRIMINAL APPLICATION [ABA] NO. 494/2021.
Bharatbhai Pashabhai Patel
-VERSUS-
The State of Maharashtra, through P.S.O. Kelwad, Nagpur Rural, Nagpur.
CRIMINAL APPLICATION [ABA] NO. 534/2021.
Anoop Singh Chattar Singh Bhati
-VERSUS-
The State of Maharashtra, through P.S.O. Kelwad, Nagpur Rural, Nagpur.
CRIMINAL APPLICATION [ABA] NO. 345/2021.
Sohil Abdul Taslim Sheikh
-VERSUS-
The State of Maharashtra, through P.S.O. Chandrapur.
Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders
or directions and Registrar's orders.
Shri Anil Mardikar, Senior Advocate with Shri R.V. Gahilot, Advocate for
Applicants in ABA Nos. 484 & 486 of 2021.
Shri A.A. Dhawas, Advocate for Applicants in ABA Nos. 494 & 534 of
2021.
Shri M.V. Rai, Advocate for the Applicant in ABA No.345 of 2021.
Shri M.K. Pathan, A.P.P. for the Non-applicant.
CORAM : VINAY JOSHI, J.
DATE : SEPTEMBER 03, 2021.
Heard.
2. First four bail applications i.e. A.B.A. Nos.484,
486, 494 and 534 of 2021 arise out of one and same crime,
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i.e. Crime No.94/2021 registered with the Non-applicant
Kelwad Police Station, Nagpur Rural, District Nagpur for
offence punishable under Sections 420 read with Section 34
of the Indian Penal Code, Sections 2, 7, 8, 15 and of the
Environmental (Protection) Act, Sections 10, 11, 12, 13 and
14 of the Maharashtra Cotton Seed Act, 2009, Rule 10 of the
Maharashtra Cotton Seed Rules and Sections 8, 9, 10,11, 12,
13 and 14 of the Seeds Act, 1968. The fifth and last bail
application i.e. A.B.A.No. 345/2021 arise out of Crime
No.271/2021 registered with the non-applicant therein -
Chandrapur Police Station for the offence punishable under
Section 420 of the Indian Penal Code, Sections 15 of the
Environmental (Protection) Act, Sections 3 and 7 of the
Essential Commodity Act, Section 10 of the Maharashtra
Cotton Seed Act 2009, Rules 7 to 14 of the Maharashtra
Cotton Seed Rules.
Both the crimes are relating to similar offence, as
well as all the submissions canvassed are some what similar,
therefore, for the sake of convenience, all applications are
taken up together for hearing and disposed of by this
common order.
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3. All applicants prayed for grant pre-arrest
protection by claiming innocence, false implication and
inadequacy of material. Moreover, technical objection about
the maintainability of the prosecution launched at the
instance of police report, has been questioned. It is also
submitted that since the stock of prohibited seeds was already
seized, there is no need for custodial interrogation.
4. The State has resisted all applications by filing
separate reply-affidavits. It is contended that applicants are
the preparators of crime. With conscious knowledge, they
have caused to transport prohibited cotton seeds. Applicants
have posed that the seeds are of permitted quality, however,
by misbranding prohibited seeds in huge quantity were
manufactured and sent for distribution in the State of
Maharashtra. Applicants are indulging into manufacturing,
supply, transportation and sale of the prohibited HTBT
cotton seeds. Custodial interrogation is necessary to find out
the production unit, remaining stock of banned seeds, and
information about the other accused, if any. In order to
unfold the racket indulging into hazardous activities,
interrogation is necessary. Considering the seriousness of the
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offence and vast magnitude of distribution and sale of the
prohibited seeds, State has prayed for rejection of all
applications.
5. Agricultural Officer namely Chandrakant
Wankhede lodged report on 27.05.2021 regarding the
occurrence in Crime No.94/2021. Whereas in Crime
No.271/2021 the report was lodged by the Agricultural
Officer - Prashant Madavi. The officers claim to be authorized
persons under the Seeds Act, Cotton Seeds Act and Rules
framed thereunder. In respect of Crime No.94/2021, it is
stated that on 26.05.2021 on receipt of secret information,
regarding illegal transportation of prohibited HTBT Cotton
seeds in huge quantity, the police intercepted a container
bearing registration No. MH-40-N-495. Stock in huge
quantity of banned HTBT cotton seeds was recovered and
seized. From said vehicle total 11,100 seed packets worth
Rs.1,05,13,700/- came to be seized. After seizure, samples
were drawn in presence of panch witness and were
forwarded to the Public Analyst for examination. The
complaint bears reference of violation of various provisions of
Cotton Seed Act and Environmental Protection Act.
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In respect of Crime No.271/2021, on receipt of
secret information on 01.05.2021, regarding illegal storing of
prohibited HTBT Cotton seeds in huge quantity, the police
searched one house and found stock in huge quantity of
banned HTBT cotton seeds worth Rs.68,81,160/-, which
came to be seized. After seizure, samples were drawn in
presence of panch witness and were forwarded to the
Chemical Analyst for examination. In this matter also, the
complaint bears reference of violation of various provisions of
Cotton Seed Act and Environmental Protection Act.
6. Heard learned Senior Counsel alongwith other
respective Counsel for applicants and learned A.P.P. for the
non-applicant State. Perused case papers. At the inception,
the learned Senior Counsel and learned Counsel appearing
for respective applicants have seriously questioned the
maintainability of the prosecution launched by the police
officer. In this regard, reference is made to the provisions of
Section 9 of the Environmental Protection Act 1986, Section
15 of the Cotton Seeds Act 2009 and Rule 23[a] of the Seeds
Rules, 1968. It is argued that there is complete bar for Court
to take cognizance of the offence, except for a complaint
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made in writing by an authorized person. Moreover, it is
submitted that under Rule 23[a] of the Rules, a Seed
Inspector is authorized to launch proceedings, after following
the prescribed procedure. In support of said contention,
reliance is placed on the decision in case of Korra Srinivas
Rao s/o Krishnamurthy .vrs. State of Maharashtra and others
- 2002 [4] Mh.L.J. 368. In the said case, this Court has
observed that on a complaint of farmer regarding failure of
crop due to defective quality of seed, the Seed Inspector can
only launch prosecution after detailed investigation, but,
police authorities cannot investigate. To respond the
submission, the learned A.P.P. would submit that the ratio
would apply only in cases where complaints are made by
farmers regarding defective quality of seeds.
7. Applicants would submit that in case of violation
of provisions of the Maharashtra Cotton Seeds Act, 2009 a
complaint must be lodged by the authorized officer. In
support of said contention, reliance is placed on following
decisions - (1) Maharashtra Hybrid Seeds Company Ltd. and
another .vrs. The State of Maharashtra - Criminal Application
No.4402/2013 decided on 03.03.2015, (2) Maharashtra
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Hybrid Seeds Company Ltd. and another .vrs. The State of
Maharashtra - Criminal Application No.346/2015 decided on
07.04.2016, (3) Maharashtra Hybrid Seeds Company Ltd. and
another .vrs. The State of Maharashtra - Criminal Application
No.5256/2013 decided on 15.09.2014 and (4) Maharashtra
Hybrid Seeds Company Ltd. and another .vrs. The State of
Maharashtra and others - Criminal Application No.232/2013
decided on 16.01.2015. Moreover, reliance is also placed on
the decision in cases of (1) Vilas Rambhau Majrikar .vrs. State
of Maharashtra - Criminal Application No.1173/2010 decided
on 22.06.2015 and (2) M/s. Ajeet Seeds Ltd. .vrs. State of
Maharashtra and another - Criminal Application
No.803/2018 decided on 27.03.2019, to impress that the
prosecution is maintainable only on filing of a private
complaint.
8. On the other hand, the learned A.P.P. has
straneously argued that the bar would not apply, since
prosecution is also under the provisions of the Indian Penal
Code. He would submit that there is no bar for
simultaneous prosecution under the Indian Penal Code along
with other enactments. To support said contention, reliance
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is placed on the decision of the Hon'ble Supreme Court in
case of State of Maharashtra and another .vrs. Sayyed Hassan
Sayyed Subhan and others. 2018 AIR (SC) 5348. The
learned A.P.P. would submit that the Supreme Court had an
occasion to consider the parimateria provision contained in
Section 22 of the Mines and Minerals Act, relating to
cognizance of offence. Placing reliance on the decision of
Hon'ble Supreme Court in case of State (NCT of Delhi) .vrs.
Sanjay - (2014) 9 SCC 772, he would contend that despite
such provision under a special statute, there is no complete
bar for taking action by the police for the offences under the
Indian Penal Code.
9. I do not deem it necessary to deal with these
submissions at the stage of deciding anticipatory bail
applications. The applicant in Criminal Application No.
534/2021 has already approached to this Court for quashing
of the proceedings by filing Criminal Application
No.598/2021, which is pending for adjudication. Prima facie,
it would suffice to say that different provisions for taking
cognizance would apply for the action initiated under various
Acts. However, in case at hand the action is also initiated
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under the provisions of the Indian Penal Code. Moreover,
complainants have claimed that they are authorized officers
to file report. At this preliminary stage, said material is
sufficient to decide applicants' entitlement for pre-arrest bail
on the basis of factual aspect only.
10. The applicant - Nareshbhai Patel (ABA
No.484/2021), claims that he is doing separate Ginning and
Pressing business, which has no concern with Vishwas Agro
Tech. According to him, the co-accused Akherajbhai Patel is
the sole proprietor of a different concern having similar
name. In short, he denies his nexus with Vishwas Agro Tech,
who has dispatched the prohibited stock of seeds.
It is submitted on behalf of applicant - Akherajbhai
(ABA No.486/2021), that he is engaged in the business of
sale of cotton. It is submitted that the seized seeds were
manufactured by one Narmada Sagar Agro Seeds Ltd. His
proprietary concern - Vishwas Agro Tech was only marketing
the seeds in the State of Maharashtra. It is further submitted
by applicants - Akherajbhai and Nareshbhai, that though
huge stock of seeds was seized, however, Vishwas Agro Tech
has sold only 300 bags to one Omkar Krushi Kendra,
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Bhadrawati. They have no concern with the remaining seized
stock. These applicants have produced registration certificate
of Vishwas Agro Tech, a proprietary concern in the name of
Akherajbhai Patel. Likewise another registration certificate in
the name of the same firm Vishwas Agro Tech, was produced,
which shows that both Akherjbhai and Nareshbhai are
partners. Prima facie, it appears that on different address
both applicants were jointly doing the business from same
establishment by using similar name. Perusal of case diary
also indicate that both applicants are concerned with Vishwas
Agro Tech, which is also a seed manufacturing unit.
11. Applicants have also produced invoice in the name
of Vishwas Agro Tech, which bears reference that it is a Seed
Production and Marketing concern, therefore, their prima
facie involvement is evident. The report of the Public Analyst
dated 14.06.2020, was received by the investigating officer.
The result of the examination is that the seized material was
banned, being detrimental to soil and environment. The
seized material is known as "HTBT" quality, which is
prohibited one. The percentage was found to be positive.
Apart from the technicalities, it would suffice to say that as
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per the Public Analyst report, the seeds seized by the police in
huge quantity, were totally prohibited and harmful for use. It
would have adverse impact on the environment. It reveals
from the papers that BT and HTBT cotton seeds are
prohibited by the Central Government due to its health
hazardous contents to the farmers and loss of fertility to land
by its use.
12. Applicant Bharatbhai (ABA No.494/2021), would
submit that he has no concern with the alleged seizure. Due
to similarity of his name with "Bade Bharatbhai", he is falsely
implicated in the present case. It reveals from the case
papers that the applicant Bharatbhai was having nexus with
applicants - Akherajbhai and Nareshbhai. He has send the
prohibited seeds through applicant Anoopsingh Bhati for sale.
The police have collected call details of Bharatbhai to show
that while the goods were being transported, he was
continuously in touch with the co-accused Anoopsingh.
13. Applicant Anoopsingh Bhati (ABANo. 534/2021),
claims to be a mere transporter of goods. It is his contention
that he has no concern with the prohibited goods. Prima facie
it is revealed from the police papers that he was knowing the
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nature of goods and was continuously monitoring the goods
while in voyage. Moreover, call details, as referred above
also shows that the applicant Anoopsingh was also monitoring
the transportation of goods with conscious knowledge.
14. The learned A.P.P. has submitted that while the
applicant Anoopsingh was on interim bail, as a condition of
bail, he was directed to attend the police station to facilitate
investigation. Pertinent to note that the prosecution has
specifically raised a grievance that the applicant Anoopsingh
never attended the police station, nor had cooperated in the
investigation. It is also brought to the notice of the Court,
that under the pretext of hospitalization, the applicant
Anoopsingh avoided to attend police station, however, on
enquiry it was found that he was never hospitalized for any
treatment in the hospital. Certainly this conduct on the part
of this applicant assumes significance.
15. The investigation paper reveals that the police
team has visited Vishwas Agro Tech. It was learnt that
Vishwas Agro Tech was run by Akherajbhai and Nareshbhai
as a partnership concern. Carbon copies of bills were also
seized from Vishwas Agro Tech. Learned A.P.P. has
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submitted that while transporting the goods, fabricated
receipts [bilty] was prepared posing that the goods were of
spinach seeds. It is pointed out that wrappers of the pouches
contain name of Vishwas Agro Tech, as a marketing agency.
16. As regards to Criminal Application No.345/2021,
it is the prosecution case that on receipt of secret information,
police raided the premises of the applicant. During search,
huge quantity of packets containing prohibited HTBT cotton
seeds were seized. Moreover, the police also found loose
stock of prohibited cotton seeds stored in bags. The entire
prohibited seeds were worth Rs.68,81,160/-. During
investigation police recorded statement of owner of the
premises from which it is revealed that the applicant took the
said premises on rental basis and had stored the goods.
Moreover, it was revealed that the applicant was packing the
loose seeds into packets. The said material prima facie
indicates the complicity of applicant regarding his specific
role of storing prohibited goods in huge quantity. Not only
packed material was found, but, prohibited goods were found
in loose quantity, which is serious one. The investigation is
needed to trace the origin of the manufacture of the goods
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and about its distribution. The applicant would be only in a
position to divulge those during the course of investigation.
17. Learned Senior Counsel appearing for applicants
would submit that mere seizure of prohibited articles does
not amount to an offence of cheating. In order to specify the
essential ingredients to constitute an offence of cheating,
reliance is placed on the decision of Hon'ble Supreme Court
in case of Mohammed Ibrahim and others .vrs. State of Bihar
and others (2009) 8 SCC 751. As against this, the learned
A.P.P. by placing reliance on the judgment of Hon'ble
Supreme Court in case of Rajesh Bajaj .vrs. State NCT of Delhi
and others - 1999 AIR (SC) 1216, would submit that from
the very deceptive intention of applicants, the offence of
cheating would attract. It is also submitted that the offences
punishable under Sections 468 and 471 of the Indian Penal
Code would also attract.
18. Prima facie it is evident that a huge stock of
prohibited seeds came to be seized. From the public analyst
report, it is evident that seized seeds was the prohibited
HTBT cotton seed having herbicide tolerant and their
germination percentage was also not as per the approved
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standards. It is revealed that there was misprinting about the
quality. Though it was not complained by any farmer,
however, the fraudulent and dishonest intention can be
gathered from the act itself. Seizure of huge stock prima facie
indicates that it was being transported for distribution and
sale. The said act may amount to an conscious attempt of
cheating.
19. Besides that, wrappers were produced before the
trial Court as well as brought to this Court for inspection to
show that with deceitful means, it was labeled as an approved
quality. It is undeniable that HTBT cotton seeds are
dangerous and hazardous. Prima facie the report of public
analyst affirms about the banned quality. Holding licence for
sale of approved quality goods and sale of prohibited articles
under the guise of approved licence, are two different aspect.
There are allegations that the wrappers have also been
misprinted to deceive buyers. Prima facie it reveals that the
banned seeds having impact on the farming sector, has been
brought in the State obviously for sale. The investigation is
needed in various dimensions like its production unit, modus
operandi, seizure of remaining stock, seizure of
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manufacturing material, connection of other accused in
supplying prohibited goods etc. custodial interrogation would
only reveal about ownership of remaining seized stock. In
case of like nature, the investigation is necessary from various
angles, which cannot be predicted at this stage. Certainly by
custodial interrogation of applicants, the investigating agency
would be in position to reach to the truth. Considering the
calculated act of manufacturing and distributing banned
seeds for monetary gain, protection cannot be granted. The
alleged act is having far reaching effect on the health,
environment and farming sector. Therefore, judicial
discretion can not be exercised in such serious cases. In view
of that, all applications stand rejected.
20. At this stage, the learned Counsel for applicants
prays for continuation of interim protection so as to enable
them to approach the Hon'ble Supreme Court. Interim
protection to continue for a period of two weeks from today.
Needless to mention that the same shall automatically cease
to operate thereafter.
JUDGE
Rgd.
