Gujarat High Court
Abhaybhai Mahipal Sinh Jain vs State Of Gujarat on 20 June, 2022
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
R/CR.MA/9218/2022 ORDER DATED: 20/06/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 9218 of 2022
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ABHAYBHAI MAHIPAL SINH JAIN
Versus
STATE OF GUJARAT
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Appearance:
MR N D NANAVATI, SR. ADVOCATE WITH MR JEET B KARIA(11991) for
the Applicant(s) No. 1,2
MR RONAK RAVAL, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 20/06/2022
ORAL ORDER
1. At the outset learned Senior Advocate M. N.D. Nanavati with learned Advocate Mr. Jeet B. Karia for the applicants would submit that so far as the applicant No.2 is concerned, the present application has become infructuous. Having regard to the same, the present application stands disposed of qua the applicant No.2, as having become infructuous.
2. Heard learned Senior Advocate Mr. N.D. Nanavati with learned Advocate Mr. Jeet B. Karia for the sole applicant i.e. applicant No.1 and learned Additional Public Prosecutor Mr. Ronak Raval on behalf of the respondent-State.
3. Rule. Learned APP Mr. Raval waives service of rule on behalf of the respondent-State.
4. By way of this application under Section 438 of the Code of Criminal Procedure, 1973, the applicant prays for being released on anticipatory bail in connection with FIR No. 11206050220130 of 2022 registered with Nandasan Police Station, District Mahesana on 04.05.2022 for offences punishable under Sections 7(1)(a)(i) and 7(1)(a)(ii) read with Section 3 of the Essential Commodities Act, 1955 and further read with Orders 7, 9 and 25 of Fertilizer (Control) Order, 1985.
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5. The allegations in the FIR being that the applicant, had used Subsidized Neem Coated Urea for industrial purpose as against Industrial Urea and whereas the allegation being that such usage had been done by the present applicant, inspite his knowledge that the material in question was subsidized material.
6. Learned Senior Advocate Mr. N.D. Nanavati for the applicant would submit that the present applicant, was never, aware of the fact that the material purchased by him was Neem Coated Subsidized Urea and not urea for industrial purpose. Learned Senior Advocate would submit that the entire material, had been purchased by the applicant, through proper channel, where invoices have been generated and consideration, had been transferred through bank. Learned Senior Advocate would submit that as such, there is little to differentiate between Technical Grade Industrial Urea and Neem Coated Subsidized Urea and whereas even in the invoices, it is clearly mentioned that material which was purchased by the present applicant was Technical Grade Urea and whereas the market price for such material, had been paid by the present applicant. Learned Senior Advocate would submit that as far as the material is concerned, even the Investigating Officers, could only arrive at a conclusion that the material in question was Neem Coated Urea, after the FSL had submitted its report. Learned Senior Advocate would submit that as such, immediately upon the present applicant coming to know of the fact that they had been sold Neem Coated Subsidized Urea, instead of Industrial Urea, on 02.05.2022 itself i.e. even prior to filing of the present FIR, the present applicant had lodged an FIR against accused Nos. 3 and 4 of the present FIR, from whom the present applicant had purchased the material in question. Learned Senior Advocate having regard to the submissions noted herein above would request that this Court may release the present applicant on anticipatory bail, and whereas learned Senior Advocate would submit that the applicant is ready and willing Page 2 of 6 Downloaded on : Mon Jun 20 21:52:09 IST 2022 R/CR.MA/9218/2022 ORDER DATED: 20/06/2022 to co-operate and join the investigation and all material which is available with the applicant, to show that the goods in question purchased by the applicant under the belief that the same was Industrial Grade Urea, would be placed before the Investigating Officers.
Learned Senior Advocate for the applicant on instructions states that the applicant is ready and willing to abide by all the conditions including imposition of conditions with regard to powers of Investigating Agency to file an application before the competent Court for his remand. Learned Senior Advocate would further submit that upon filing of such application by the Investigating Agency, the right of applicant-accused to oppose such application on merits may be kept open.
7. This application has been vehemently opposed by learned Additional Public Prosecutor Mr. Raval appearing on behalf of the respondent-State, who would submit that while it is being submitted by the applicant that the material purchased by him was Technical Grade Urea but the fact remains, more particularly after FSL examination that the material was found to be Neem Coated Urea, which was only to be used for the benefit of the farmers, being sold at a subsidized rates. Learned APP would further submit that as such, the invoices also reflect that the present applicant was beneficiary of the transaction in question, more particularly the applicant having purchased the Technical Grade Urea, at the rate of Rs.61/- per Kilogram whereas the present material had been purchased by the applicant at Rs.50/- per Kilogram as well as Rs. 47/- per Kilogram. Learned APP would submit that the applicant cannot now take a stand that the material was purchased by the applicant under an impression that it was Technical Grade Urea and not Neem Coated Subsidized Urea. Learned APP would submit that in this view of the matter, this Court may not release the present applicant on anticipatory bail, more particularly custodial interrogation of Page 3 of 6 Downloaded on : Mon Jun 20 21:52:09 IST 2022 R/CR.MA/9218/2022 ORDER DATED: 20/06/2022 the applicant being required.
8. Heard learned Advocates for the parties, who have not submitted anything else.
9. This Court has taken the following aspects into consideration :
[1] That the applicant had purchased the material in question, through normal mode of business i.e. by generating invoices and having made the payment through bank channels .
[2] It also appears that from the report tendered by the learned APP in support of his submission that the applicant had purchased the material in question at a lesser price, that the price of the material appears to be fluctuating inasmuch as at some point of time, the price of the material was Rs. 50 per Kilogram and also later on, the same had decreased to Rs. 47 per Kilogram.
[3] That the material in question was purchased by the applicant clearly as Technical Grade Urea and whereas upon the applicant coming to know of the fraud in question, had immediately filed an FIR against accused Nos. 3 and 4 of the present FIR, more particularly the FIR being filed by the present applicant being earlier in point of time then the present FIR in question.
[4] That the contention on the part of the applicant that there is very little different between Neem Coated Subsidized Urea and the Technical Grade Urea, more particularly since prima facie it appears that even the Investigating Officers, could not identify the same and it is only after the FSL report that the present FIR had been filed.Page 4 of 6 Downloaded on : Mon Jun 20 21:52:09 IST 2022
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[5] The fact that there are no antecedents against the present
applicant of being involved in any offence herein before, more particularly in any offence of the like nature.
[6] The fact of applicant being ready and willing to co-operate with the investigation.
10. In this view of the matter and considering the law laid down by the Hon'ble Apex Court in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra and Ors. reported in (2011)1 SCC 694, this Court is inclined to consider this application.
11. In the result, the present application is allowed by directing that in the event of applicant No.1 herein being arrested pursuant to the FIR No. 11206050220130 of 2022 registered with Nandasan Police Station, District Mahesana, the applicant No. 1 shall be released on bail on furnishing a personal bond of Rs.25,000/- (Rupees Twenty Five Thousand only) with one surety of like amount, on the following conditions :
(a) shall cooperate with the investigation and make himself available for interrogation whenever required;
(b) shall remain present at the concerned Police Station on 21.06.2022 between 11:00 a.m. and 2:00 p.m.;
(c) shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the fact of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;
(d) shall not obstruct or hamper the police investigation and not to play mischief with the evidence collected or yet to be collected by the Police;
(e) shall at the time of execution of bond, furnish the address to
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the Investigating Officer and the Court concerned and shall not change his residence till the final disposal of the case or till further orders;
(f) shall not leave India without the permission of the Court and, if having passports shall surrender the same before the Trial Court within a week.
12. Despite this order, it would be open for the Investigating Agency to file an application for police remand of the applicant to the competent Magistrate, if he thinks it just and proper and learned Magistrate would decide it on merits. The applicant shall remain present before the learned Magistrate on the first date of hearing of such application and on all subsequent occasions, as may be directed by the learned Magistrate. This would be sufficient to treat the accused in the judicial custody for the purpose of entertaining application of the prosecution for police remand. This is, however, without prejudice to the right of the accused to seek stay against an order of remand, if ultimately granted, and the power of the learned Magistrate to consider such a request in accordance with law. It is clarified that the applicant, even if, remanded to the police custody, upon completion of such period of police remand, shall be set free immediately, subject to other conditions of this anticipatory bail order.
13. At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court while enlarging the applicant on bail. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
(NIKHIL S. KARIEL,J) BDSONGARA Page 6 of 6 Downloaded on : Mon Jun 20 21:52:09 IST 2022