In a reference to Section 438 CrPC application for pre-arrest bail filed by 14 accused persons, the Gauhati High Court examined the FIR and case diary. The court found sufficient material indicating involvement of the accused and ordered the bail application dismissed.
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GAHC010165532020
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : AB/3301/2020
RAFIKUL ISLAM AND 13 ORS
S/O HASMAT ALI, VILL-BOGULAMARI, P.S.-KALGACHIA, DIST-BARPETA (ASSAM), PIN-781316
VERSUS
THE STATE OF ASSAM REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM
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Advocate for the Petitioner : MR. A M AHMED
Advocate for the Respondent : PP, ASSAM
BEFORE
HON’BLE MR. JUSTICE MANASH RANJAN PATHAK
ORDER
23-11-2020
Heard Mr. HRA Choudhury, learned Senior counsel assisted by Mr. A. Matin, learned counsel for the petitioners and Ms. S. Jahan, learned Additional Public Prosecutor, Assam for the State.
By this application filed under Section 438 CrPC, the petitioners, namely, 1) Rafikul Islam, 2) Taj Uddin Ahmed, 3) Latiful Islam Choudhury, 4) Taj Uddin Ahmed, 5) Hannan Choudhury, 6) Abu Taher Ahmed, 7) Jahura Begum, 8) Mazada Choudhury, 9) Ashraf Ali Ahmed, 10) Solaiman Ali Ahmed, 11) Ashraful Alom, 12) Abdus Sattar Ahmed, 13) Montu Sutradhar and 14) Innas Ali apprehending their arrest are seeking pre arrest bail in B.I.(EO) P.S. Case No. 20/2020 registered under Section 120(B)/420/406/468/471 of IPC read with Section 7 of the Essential Commodities Act, 1955.
Mr. Choudhury, learned Senior counsel for the petitioner submits that though petitioners are the Members of the Board of Director of M/S. Uttar Titapani Samabay Samity Limited, Kalgachiya, District- Barpeta, they are no way connected with the offences alleged in the said B.I.(EO) P.S. Case No. 20/2020 and it is the Secretary of the said Samabay Samity Limited alone committed the alleged crime while distributing the rice to the beneficiaries of the said Society under the National Food Security Act, 2013 and Targeted Public Distribution System.
Mr. Choudhury, learned Senior counsel further submitted that provisions of the Assam
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Cooperative Societies Act, 2007 as amended specifically provides the duties, powers and functions of the Members of the Board of Directors of such Samabay Samity under Section 38 and that of the Secretary of such Samabay Samity are provided in Section 49 of the said 2007 Act as amended. By placing the provision of Section 49 (2) of the said 2007 Act, Mr. Choudhury submits that the day-to-day management of the business of the Cooperative Society, making arrangements for various documents and records of the Society, the Chief Executive i.e., the Secretary of the Society to act on behalf of the Board of Directors of Such Society under the 2007 Act and as the relevant FIR of the case itself points its fingers to the Secretary of the Society, the Board Members of the said Society are no way connected with the case.
Further placing the provisions of Section 38 of the said 2007 Act, Mr. Choudhury, learned Senior counsel for the petitioners submits that the provisions of the relevant Section does not indicate the involvement of the petitioners i.e., the Board Members of the society with regard to the business of the Society which is required to be managed and conducted by the concerned Secretary.
For the reasons above, Mr. Choudhury, learned Senior counsel for the petitioners submits that the petitioners representing the Board of Director of said Uttar Titapani Samabay Samity Limited are entitled for their pre arrest bail in said B.I.(EO) P.S. Case No. 20/2020.
Perused the FIR of the case as well as the record of B.I.(EO) P.S. Case No. 20/2020 placed before the Court by the learned Additional Public Prosecutor, Assam.
It is seen that initially there was a preliminary enquiry by the Superintendent of Food and Civil Supplies and Consumer Affairs in the Bureau of Investigation and Economic Affairs, Assam regarding anomalies in the Uttar Titapani Samabay Samity Limited as well as with regard to violation of the provision of the Public Distribution System (Control), 2001 by the Secretary of the Society.
After the preliminary enquiry with regard to the said society, a detailed FIR was submitted by the Superintendent of Food and Civil Supplies and Consumer Affairs before the authorities of BIEO on 06.11.2020.
The FIR discloses that the Samabay Samity took a decision sometime in September,
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2018 to deduct 125 grms. of rice from every beneficiaries of the concerned Society, particularly, for the National Food Security Act card holders of the Society. The FIR also discloses that there are altogether 10770 FIC holders including 1317 AAY and 9453 PH holders and in total 48531 beneficiaries of the said Society were deprived of 60 quintals of rice in 26 months under the NFSA-2013.
The case diary placed before the Court reveals that during the investigation necessary seizures were made by preparing the seizure memos and that the portion of rice that were deducted from the 48531 beneficiaries under the NFSA during the period from September, 2018 to April, 2020 were sold in the open market, the benefits which not only went to the Members of the Board of Directors of the Society but also to some other persons for which the concerned Investigating Officer in its note specifically objected with regard to the bail of the petitioners as the accused persons involved in the case need to be investigated upon and if bail is granted to the petitioners, i.e., the Members of the Board of Directors, the investigation of the case will be hampered.
Case diary reveals sufficient incriminating materials regarding the involvement of the petitioners in said B.I.(EO) P.S. Case No. 20/2020. The same also reveals that they kept quiet and shut their eyes inspite of their knowledge with regard to the illegal action on the part of the Secretary of the Society concerned.
The case diary also reveals that the Secretary of the said Society along with its President and the Members of the Board of Directors misappropriated 55 quintals of rice per month since January, 2015 to October, 2020 for a period of 4 years 10 months for their personal gain.
The investigation of the case is yet to be completed.
Considering the materials in the case diary, placed today, the Court is of the view that it is not a fit case to grant the petitioners, the benefit of pre arrest bail in said B.I.(E.O.) P.S. Case No.20/2020.
Accordingly, this pre arrest bail application of the petitioners, namely, 1) Rafikul Islam , 2) Taj Uddin Ahmed , 3) Latiful Islam Choudhury , 4) Taj Uddin Ahmed , 5) Hannan Choudhury , 6) Abu Taher Ahmed , 7) Jahura Begum , 8) Mazada Choudhury , 9)
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Ashraf Ali Ahmed , 10) Solaiman Ali Ahmed , 11) Ashraful Alom , 12) Abdus Sattar Ahmed , 13) Montu Sutradha r and 14) Innas Ali seeking pre arrest bail in said B.I.(EO) P.S. Case No. 20/2020 stands rejected.
Return the case diary herewith.
JUDGE
Comparing Assistant
2 issues framed by the court
Whether the provision of pre-arrest bail under Section 438 CrPC should be granted to the petitioners, who are Board Members of the Uttar Titapani Samabay Samity Limited, apprehending arrest in the B.I
Whether the allegations in the FIR and the materials in the case diary regarding misappropriation of food grains sufficiently warrant refusal of pre-arrest bail.
6 provisions across 5 enactments
RAFIKUL ISLAM AND 13 ORS
THE STATE OF ASSAM REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM
MANASH RANJAN PATHAK
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
