Pradip S/O. Gulabchand Raisoni (Jain) Vs the State of Maharashtra and Anr.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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BENCH AT AURANGABAD

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CRIMINAL APPLICATION NO.239 OF 2018

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Pradip s/o Gulabchand Raisoni (Jain),
Age-50 years, Occu:Business,
R/o-Navjivan Colony, Vaijapur,
Aurangabad.

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...APPLICANT

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 VERSUS

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1) The State of Maharashtra,
 Through the Police Inspector,
 Police Station, Vaijapur,
 Aurangabad, Dist-Aurangabad,

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2) The District Superintendent of Police, Aurangabad Rural, Dist-Aurangabad.

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...RESPONDENTS

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...

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 Mr.R.D. Sanap Advocate for Applicant.
 Mr.S.B. Joshi, A.P.P. for Respondent
 Nos.1 and 2.

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...

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CORAM: S.S. SHINDE AND

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 R.G. AVACHAT, JJ.

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DATE OF RESERVING JUDGMENT : 27TH FEBRUARY, 2019

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 DATE OF PRONOUNCING JUDGMENT: 1ST MARCH, 2019

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JUDGMENT [PER S.S. SHINDE, J.]:

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1. Rule. Rule made returnable forthwith and

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heard finally with the consent of the learned
counsel appearing for the parties.

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2.The Applicant has filed this Application
praying therein to quash and set aside the
Complaint/ First Information Report bearing No.303
of 2017 registered on 22nd July, 2017, with police
station, Vaijapur, Dist-Aurangabad, for the
offence punishable under Section 285 of the Indian
Penal Code and under Section 3 and 7 of the
Essential Commodities Act.

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3.Learned counsel appearing for the

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Applicant submits that the Applicant is wholesale
kerosene dealer having valid license to that
effect, issued by the Government of Maharashtra,

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in the year 1998. It is submitted that on 20th
July, 2017, as per routine course the Applicant
went to Yeola Road, Vaijapur for distribution of
the kerosene quota to his sub dealer/ customer as
per list, along with Mr. Pawar, authorized officer
of Tahsil Office, Vaijapur. Under the supervision
and observation of Mr. Pawar from Tahsil Office,
the Applicant was distributing the kerosene quota
which was allotted to him as per the Government
Scheme. It is submitted that, as Mr. Pawar was not

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feeling well, he went to medical shop for
purchasing medicine, and at the same time, upon
instruction of police inspector Mr. Nandedkar,
police staff of Vaijapur police station came to
the spot and the kerosene tanker and other
vehicles were seized and taken to the police
station, Vaijapur, on the allegations that the
Applicant was selling the kerosene in open market
which was for public distribution system.

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4.Learned counsel further submits that on
the very day, Mr. Pawar, authorized officer of
Tahsil Office, Vaijapur given in writing to the
Tahsildar, Vaijapur that he was with the tanker
and in his presence distribution of kerosene was
going on as per the list, but as he was not
feeling well therefore he went to the medical shop
for purchasing medicines and at that time police
came there and kerosene tanker and other vehicles
were taken to the police station, Vaijapur.
Learned counsel further submits that when
Tahsildar, Vaijapur, came to know that kerosene
tanker was seized, by letter dated 21st July, 2017,
Tahsildar, Vaijpaur informed the police inspector,
police station, Vaijapur, that as the shop of the
sub-dealer was in a narrow lane and it was not
possible to reach the tanker to the shop of sub-
dealer, therefore, the Applicant was distributing
the kerosene to the sub-dealer in open space. The

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Tahsildar, Vaijapur, further informed that the

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Applicant was distributing the kerosene as per the
relevant rules and regulations and further
directed the concerned police officer to release
the tanker. It is submitted that there is delay of
two days in lodging the First Information Report.
Learned counsel submits that the Applicant has
been falsely implicated in the crime. Learned
counsel further submits that there is no mention
intheFirstInformationReportabout
contravention of any order made under Section 3 of
the Essential Commodities Act, and therefore, in
absence of any order made under Section 3 of which
the contravention is claimed, the offence under
Section 7 of the Essential Commodities Act could
not be made out. Therefore, learned counsel
appearing for the Applicant submits that the First
Information Report deserves to be quashed.

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4.On the other hand, learned A.P.P.

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appearing for the State submits that the Applicant

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was selling kerosene in the open market which was
for public distribution system and therefore, the
police had seized the tanker and other vehicles.
Learned A.P.P., relying upon the allegations in
the F.I.R. and also statements of the witnesses
and other material collected during the course of
investigation, submits that the alleged offences
have been disclosed, which needs investigation and
therefore the Application may be rejected.

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5.We have given careful consideration to
the submissions of learned counsel appearing for
the Applicant and learned A.P.P. appearing for the
State. With their able assistance, we have perused
the grounds taken in the Application, annexures
thereto, and the investigation papers made
available for our perusal by learned A.P.P.

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6.Admittedly, the Applicant is wholesale
kerosene dealer possessing valid license issued by

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the Government of Maharashtra, for purchase, sale
and storage of kerosene. It is the case of the
Applicant that as per the procedure, he was
distributing the kerosene to the sub-dealers under
the supervision of R.B. Pawar, Senior Clerk of
Tahsil Office, Vaijapur, who was authorized
officer. As said Mr. Pawar was not feeling well,
he went to nearby medical shop for purchasing
medicine and at that time police visited the spot
and seized the tanker containing kerosene and
other vehicles on the allegation that the
Applicant was selling the said kerosene in open
market which was meant for public distribution
system. We have perused the letter dated 20th July,
2017, issued by Tahsildar, Vaijapur to the Police
Inspector, police station, Vaijapur, which is at
Exhibit-C to the compilation of the Application.
It is specifically stated in the said letter that
the Applicant was distributing the kerosene as per

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the relevant rules and procedure, under the

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supervision of Mr. Pawar, an authorized officer
from Tahsil office, Vaijapur. It is further
mentioned in the said letter that, as said Pawar
was not feeling well, he went to nearby medicine
shop for purchasing medicine at which time police
visited the said spot and seized the tanker and
other vehicles on the allegation that the
Applicant was selling the kerosene in open market
which was for public distribution system. In the
said letter, Tahsildar has directed the concerned
police officer to release the said kerosene tanker

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forthwith, to avoid inconvenience to the poor
beneficiaries.

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7.Upon perusal of the entire material

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placed on record, and in particular, contents of
the First Information Report, admittedly there is
no mention about contravention of any order made
under Section 3 of the Essential Commodities Act,
and therefore, in absence of any order made under

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Section 3 of the Act of which contravention is
claimed, the offence under Section 7 of the
Essential Commodities Act cannot be made out. At
this juncture, it would be useful to refer the
observations made by the Division Bench of the
Bombay High Court, Bench at Aurangabad (CORAM:
S.S. SHINDE & K.K. SONAWANE, JJ.), in the case of
Shri Vijay Machindra Markad and others vs. the
State of Maharashtra and others in Criminal
Application No.492 of 2017 and other connected
Applications, decided on 8th March, 2017. In Para
10 of the said Judgment, it is observed that:

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“10. Admittedly, in all these cases, there
is no mention of contravention of any order
made under section 3 of the said Act, and
therefore, in absence of any order made
under section of which the contravention is
claimed, the offence under section 7 could
not be made out. The Supreme Court in the
case of Prakash Babu Raghuvanshi (supra) has
taken a view that for attracting the
provisions of offence punishable section 7

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of the said Act, the order under section 3
of the said Act is essential. The Division
Bench of the Bombay High Court at Nagpur in
cases of Rakesh Mahendrakumar Jain (supra)
and Dhanraj Anandrao Mohod (supra) has also
taken a view that, for bringing an
application under section 7 of the said Act,
it is necessary to make reference in the
first information reports to any order
having been made under section 3 of the said
Act being violated. In absence of it being
shown that there was any order made under
section 3 that had been contravened,
proceedings for the offence punishable under
section 7 would not be tenable and
continuation of such proceedings, therefore,
would amount to abuse of process of law.”

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8.In the facts of the present case also,

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there is no reference whatsoever in the First
Information Report to any order having made under
Section 3 of the Essential Commodities Act being
violated and therefore the proceedings for offence
punishable under Section 7 of the Essential
Commodities Act would not be tenable.

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9.Further, after taking into consideration

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the contents of the First Information Report,
statement of the witnesses and other investigation
papers, we are of the considered view that even if
the allegations are read in its entirety and taken
as it is, the allegations would not attract the
ingredients of the offence under Section 285 of
the Indian Penal Code, and Section 3 and 7 of the
Essential Commodities Act, since the documents
placed on record clearly shows that the
Applicant was distributing the kerosene to the
sub-dealers as per the relevant rules and
procedure laid down in that behalf, under valid
license. In that view of the matter, in our
consideredview, continuation of further

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proceedings against the Applicant based upon the
First Information Report, would be an abuse of
process of law, the chances of conviction would be

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bleak and the same would be an exercise in

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futility. Hence, we pass following order:

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O R D E R

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(I) The Criminal Application is allowed

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in terms of Prayer Clause “B)”, to the
extent of present Applicant only.

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(II) Rule is made absolute in above

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terms. The Criminal Application stands

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disposed of, accordingly.

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[R.G. AVACHAT, J.] [S.S. SHINDE, J.]

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asb/FEB19

Pradip S/O. Gulabchand Raisoni (Jain) v. the State of Maharashtra and Anr.

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Pradip S/O. Gulabchand Raisoni (Jain) v. the State of Maharashtra and Anr.

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