Bombay High Court
Mohan Bhagat And Ors vs The State Of Maharashtra And Anr on 9 January, 2024
Author: A. S. Gadkari
Bench: A. S. Gadkari
2024:BHC-AS:1370-DB
V.A. Tikam 208- WP 861 of 2012.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION No. 861 OF 2012
1. Mr. Mohan Bhagat )
Aged 46 years, Occ: Agriculture, )
and Hotel Business, )
presently residing at Sai Prem, )
Pinty Data House, Anand Koliwada, )
Mumbra, Thane )
2. Mr. Nandu Patil )
Aged years, Occupation Agriculturist)
Residing at Gamibai Niwas, )
Opposite Hanuman Mandir, )
Kausa, Mumbra )
3. Mr. Santosh Bhoir, )
Aged years,Occupation Agriculturist )
Residing at Shree Samarth Krupa, )
Umesh Nagar, Devicha Pada, )
Dombivali (W), Thane )
4. Mr. Shailesh Patil, )
Aged years, Occ: Agriculturist )
Residing at Shree Ganesh Krupa )
Apartment, 4th Floor, Sabegaon, )
Diva (E) Taluka, Dist. Thane ) ...Petitioners
Versus
1. State of Maharashtra )
2. Senior Inspector of Police )
Mumbai Police Station ) ...Respondents
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V.A. Tikam 208- WP 861 of 2012.doc
Mr. Ketan Dabke h/f. Mr. Ranjendra Sarankar for Petitioners
Ms. Mahalakshmi Ganapathy, APP for State
CORAM : A. S. GADKARI AND
SHYAM C. CHANDAK, JJ.
RESERVED ON : 18th DECEMBER, 2023.
PRONOUNCED ON : 9th JANUARY, 2024.
JUDGMENT [PER: SHYAM C. CHANDAK, J.]
1) Present Petition is filed under Article 226 of the Constitution of
India, seeking to quash the F.I.R. being C.R. No.456 of 2011, registered with
Respondent No.2-Mumbra Police Station for the offences punishable under
Section 379 of the Indian Penal Code, 1860 read with Section 48 (7) of
Maharashtra Land Revenue Code, 1966 and under Sections 15 and 19 of
The Environment (Protection) Act,1986
2) Heard Mr. Ketan Dabke, learned Counsel for the Petitioners and
Ms. Mahalakshmi Ganapathy, APP for the State. Perused the record.
3) Record of the Petition shows that, Rule was issued on 19 th June,
2012 and further prosecution in the case was stayed until further orders.
4) The facts giving rise to this Petition are as under :
4.1) On 23rd September, 2011, First Informant-Sanjay Garud, Circle
Officer, Mumbra along with the concerned Talathi visited Survey Nos.158
V.A. Tikam 208- WP 861 of 2012.doc
and 159, Mouje Diva. During said visit they found that, an unauthorized
excavation of sand was carried out with the help of poclain machine and
suction pipes with boats. The excavated sand was collected at the spot. The
total sand was about 70 brass. The suction pipes and boats were in the
centre of pits in swamp, therefore, couple of the suction pipes along with
boats were destroyed there itself by gas cutting machine. By that time it was
dark due to evening, hence further action was completed on 24 th September,
2011. During this action, the rest two suction pipes with boats were
destroyed as above. On inquiry with the local panchas it revealed that, the
aforesaid suction pipes, boats and the sand plots were owned by the
Petitioners and others. The Survey Nos.158 and 159 are owned by Lata
Goyal and Aditya Goyal wherein Petitioner No.1 and his two brothers were
tenants. Thereafter, the First Informant lodged the report pursuant to which
the impugned F.I.R. came to be registered against the Petitioners and three
other accused persons. Hence, this Petition.
5) Learned counsel for the Petitioners submitted that, the
Petitioners are booked in the crime only on the basis of a hearsay statement.
The Survey Nos. 158 and 159 are owned by the Goyal couple in which
Petitioner No.1 is tenant. Prior to registration of the impugned F.I.R.,
Petitioner No.1 learnt that some unknown persons are illegally excavating
V.A. Tikam 208- WP 861 of 2012.doc
the sand from the said survey numbers. Therefore, Petitioner No.1 lodged
complaints with the concerned Police Authorities. However, no action was
taken thereon. At the relevant time, Petitioner No.1 was bed ridden due to
certain ailment. Hence, it was not possible for him to cultivate the said land.
There is no material showing that Petitioner No.1 and his brothers were
actually involved in the alleged illegal excavation of the sand. Thus, it is
apparent that without any legal basis, the Petitioners have been indicted in
the F.I.R. and therefore the said F.I.R. may be quashed.
6) On the other hand, learned APP vehemently submitted that,
undisputedly Petitioner No.1 and his two brothers were in occupation and
use of the said Survey Nos. 158 and 159. The Petitioners have not explained
as to how the suction pipes with boats were fixed there and illegal
excavation of the sand was committed. There was no reason for the First
Informant to lodge a report against the Petitioners. Thus, there is prima
facie case against the Petitioners.
7) From the record and the rival submissions, it is apparent that
the said Survey Nos.158 and 159 are owned by said Goyal couple in which
Petitioner No.1 is tenant. The F.I.R. shows that the suction pipes used in the
offence were fixed at a difficult place and carefully, so that, it cannot be
easily removed. Then, with the help of the suction pipes and the boats, huge
V.A. Tikam 208- WP 861 of 2012.doc
quantity of sand (70 brass) was excavated and stored at the spot.
Admittedly, the said land was under the cultivation of Petitioner No.1.
However, Petitioner No.1 has not explained as to how four suction pump sets
with boats were successfully installed in swamp 'area' of the said land
behind his back and how the huge quantity of sand was excavated and
collected there. These circumstances, in our considered view, are sufficient
to safely infer that, by consent of Petitioner No.1 the illegal sand excavaction
was carried out at the spot. Thus, the Petitioners and other accused persons
named in the F.I.R. were clearly involved in this illegal activity. Such kind of
activities are against the environment protection of which is duty of the
citizens. In the backdrop, there is a strong prima facie case against the
Petitioners of having committed the alleged offences stated in the impugned
F.I.R.
8) In view thereof, there is no substance in the Petition. As a
result, the Petition is liable to be dismissed and is accordingly, dismissed.
(SHYAM C. CHANDAK, J.) (A. S. GADKARI, J.)
