Bombay High Court
Devi Debashish Kolay vs The State Of Maharashtra on 3 February, 2021
Author: Prakash D. Naik
Bench: Prakash D. Naik
2-ABA-2-2021.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL ANTICIPATORY BAIL APPLICATION NO.2 OF 2021
Devi Debashish Kolay ... Applicant
Versus
The State of Maharashtra ... Respondent
.....
Mr. Edgar Braganza a/w Mr. Prathamesh Gaikwad, Advocate for the
Applicant.
Mr. A. R. Kapadnis, APP for the Respondent - State.
.....
CORAM : PRAKASH D. NAIK, J.
DATE : 3rd FEBRUARY, 2021.
PER COURT:
1. The applicant has preferred this application under
Section 438 of Cr.P.C. The applicant is apprehending arrest in
connection with C.R. No. I-575 of 2020 registered with Naya Nagar
Police Station, Dist. Thane (Rural) for offence under Section 408 of
Indian Penal Code and Sections 3 & 7 of Essential Commodities Act,
1955. The FIR was lodged on 1st December, 2020.
2. The case of the complainant is that the complainant is
being appointed as distributor for gas cylinder by Bharat Petroleum
Corporation Limited. The business is conducted by the complainant
and his wife. The applicant was working as booking clerk since 2005.
The complainant learnt that some of the staff members of
Digitally signed by
Manish Manish S. Thatte
S. Thatte Date: 2021.02.05
11:24:27 +0530
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complainant are selling gas cylinders in black market by charging
more money. To ascertain this, one person was put up as customer by
the complainant on 26th November, 2020. The order was placed for
booking cylinders. Five cylinders were purchased at the rate of
Rs.700/-. Thus, it was revealed that the cylinders from the
complainant's company were sold by charging more amount. It is
alleged that Rs. 2970/- were collected by way of extra amount. In
pursuant to registration of FIR two employees were arrested on 2 nd
December, 2020. Subsequently they were released on bail.
3. The applicant had preferred an application for
anticipatory bail before the Sessions Court which has been rejected.
4. Learned counsel for the applicant submitted that the
applicant has been falsely implicated in this case. She is not
concerned with the sale of cylinders in black market. The
complainant has animus against the applicant. The applicant had
filed N.C. complaint against the complainant on 13 th October, 2015
and 10th December, 2015. It is further submitted that the
complainant has lodged complaint against the complainant alleging
outraging her modesty. The said complaint was filed prior to
registration of present FIR i.e. on 30 th November, 2020. FIR has been
registered on the complaint of applicant under Section 354 A of
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Indian Penal Code vide C.R. No. 591 of 2020 on 11 th December,
2020. It is submitted that the entry in respect to sale of cylinders is
reflected in the register. The customer was put up by the complainant
to falsely implicate the applicant in the crime.
5. Learned APP submitted that the applicant is involved in
the offence. The entries in respect to register would indicate that late
evening several cylinders were sold by over charging to the
customers. Custodial interrogation of the applicant is necessary.
Investigation into the complaint filed by the applicant is in progress.
Statements of witnesses were recorded which indicate that the
allegations made by applicant in her complaint are not true.
6. The FIR was lodged on 1st December, 2020. One
Tayyabali Abdul Shaikh was put up as customer allegedly by
complainant to ascertain black marketing of gas cylinders. The
applicant is working with the concern of complainant since 2005.
7. The contention of the applicant is that the applicant is
concerned with five genuine transactions. The transactions which
were allegedly executed by Tayyabali are false. The complainant has
deliberately not mentioned the token numbers in the FIR. The
register is deliberately not produced by the prosecution which would
reveal that the applicant is only concerned with delivery of five
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cylinders which were fortified by genuine tokens. Two other person
R. N. Kini and Prabhakar Karbhari were arrested and subsequently
they are released on bail. It is also contended that the inspector, who
is investigating officer has no authority to investigate the crime in
accordance with Section 13(a) of the Essential Commodities Act.
Two other accused were implicated since they had supported the
complaint of applicant. Learned APP however submitted that the
applicant is the person, who has entered data and made requisite
entries in the register. Several cylinders were sold to bogus
customers. It is pertinent to note that the applicant is working with
the complainant's agency since 2005. The FIR was lodged three days
after the alleged incident. Considering the factual aspects as above,
custodial interrogation of the applicant is not necessary. She can be
directed to cooperate with the investigation. Hence, I pass following
order:
ORDER
(i) Anticipatory Bail Application No. 2 of 2021 is allowed;
(ii) In the event of arrest of the applicant in connection with in C.R. No. I-575 of 2020 registered with Naya Nagar Police Station, Dist. Thane (Rural), the applicant be released on bail on furnishing P. R. Bond in the sum of Rs.25,000/- with one or more sureties in the like amount;
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(iii) The applicant shall attend the investigating officer on
10th, 11th & 12th February, 2021.
(iv) The applicant shall cooperate with the investigation.
(v) Anticipatory Bail Application stands disposed of
accordingly.
8. This order will be digitally signed by the Private Secretary/Personal Assistant of this Court. All concerned will act on production by fax or email of a digitally signed copy of this order.
(PRAKASH D. NAIK, J.)
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