Gauhati High Court
Atowar Hossain vs The State Of Assam on 6 May, 2021
Author: Soumitra Saikia
Bench: Soumitra Saikia
Page No.# 1/7
GAHC010072642021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./920/2021
ATOWAR HOSSAIN
S/O MD. SUKUR ALI
VILL- PACHIM BILASHPUR
DIST- CHIRANG
BTR (ASSAM)
PIN-783384
VERSUS
THE STATE OF ASSAM
REPRESENTED BY THE PUBLIC PROSECUTOR
ASSAM
Advocate for : MR. A M AHMED
Advocate for : PP
ASSAM appearing for THE STATE OF ASSAM
BEFORE
HONOURABLE MR. JUSTICE SOUMITRA SAIKIA
ORDER
Date : 06-05-2021 Because of Covid Pandemic situation, the Court proceedings are conducted through Video Conferencing.
2. Heard Mr. A. M. Ahmed, learned counsel for the petitioner. Also heard Mr. N. K. Kalita, learned Additional Public Page No.# 2/7 Prosecutor for the State of Assam.
3. This application under Section 439 Cr.P.C., has been filed by the petitioner, namely, Atowar Hossain, praying for regular bail. The petitioner was arrested in connection with Dhaligaon P.S. Case No. 83/2021 under Sections 379/411/34 of IPC read with Section 7 of the Essential Commodities Act, 1955 and read with Section 23 of Petroleum Act, 1934, which was registered pursuant to an FIR dated 24.03.2021
4. In the said FIR, the informant, namely, A. N. Dev, S.I. of Police, Dhaligaon Police Station, alleged that during a search made in the premises of the petitioner. The followings items were recovered:-
(1) 7(seven) numbers of blue colour plastic containers containing suspected petroleum product.
(2) 1(one) green colour plastic pipe suspected to be used for oil theft.
(3) 1(one) white colour plastic Funnel.
(4) 1(one) vehicle bearing Registration No. AS 19/B-1906 Maruti Suzuki Alto with out back seat.
(5) One Mobile Handset TECNO bearing IMEI Nos.
911656901436086, 911656901436094 with SIM No. 6901131954.
(6) 1(one) key of the vehicle bearing Registration No. AS 19/B-1906 Maruti Suzuki Alto.
5. It is alleged that during the enquiry and the search, it was found that the petroleum products which were seized, were illegally stored and that the petitioner and another Page No.# 3/7 person, namely, Md. Abdul Hoque were involved in illegal smuggling of petroleum products and oil theft. The informant alleged that the petitioner and another person, namely, Md. Abdul Hoque are a part of organized criminal gang involved in oil theft in Chirang and Bongaigaon district. On the basis of the FIR and consequential investigation made by the Police, the petitioner was arrested on 25.03.2021 and has been in judicial custody since then.
6. The learned counsel for the petitioner submits that the allegations made in the FIR are totally false and concocted. It is submitted that the petitioner is not at all involved in any illegal activity of oil theft or any smuggling petroleum products.
7. On the contrary, it is submitted by the learned counsel for the petitioner that the petitioner is a reputed farmer and also runs a small business in village Bilashpur under Dhaligaon Police Station. The petitioner owns two numbers of Tractors and Cello Machine (power pump) for his own cultivation and sometimes he used to let out his personal agricultural equipments for hire to the villagers of his village. For this purpose, the petitioner stored small quantity of diesel for use of agricultural equipments while cultivation. The learned counsel for the petitioner submits that as there is no authorized diesel or petrol outlet nearby the village area, namely, Pachim Bilashpur, the cultivators and the agriculturists Page No.# 4/7 like the petitioner face difficulties in procuring the diesel and other petroleum products necessary to run their agricultural equipments. Consequently, the petitioner stored small quantities of diesel for use in the agricultural machinery.
8. The further submission of the learned counsel for the petitioner is that the ingredients necessary for the section under which the petitioner has been booked are also not made out. In this respect the learned counsel for the petitioner submits that this Hon'ble Court by Judgment and Order dated 31st May, 2004 in B.A. No. 1152/2004 (Kailash Kumar Agarwalla Vs. State of Assam) has held that the offence committed under Section 23(1)(a) of the Petroleum Act, 1934 is punishable by simple imprisonment which may at most extend to 1(one) month and, therefore, as per the First Schedule contained in the Code of Criminal Procedure, any offence under Section 23(1)(a) of the Petroleum Act, 1934 is bailable offence.
9. The learned counsel for the petitioner, thereafter, refers to another Judgment of this Court rendered in AB No. 1205/2017 decided on 27.11.2017 (Jayanta Kr. Das Vs. State of Assam) wherein the offence alleged under Section 7 of the Essential Commodities Act, 1955 has been held to be bailable. The further submission of the learned counsel for the petitioner is that although Section 379 has been registered, the ingredients of Section 378 IPC necessary for punishment under Section Page No.# 5/7 379 is also not there. The learned counsel for the petitioner submits that as there is no allegation that the diesel found stored in his house was the property of the some other person, the ingredients of Section 378 are not made out and consequently the provisions of Section 379 are not applicable.
10. Mr. N. K. Kalita, learned Additional Public Prosecutor has produced the case diary, which was perused. The learned counsel for the parties have been heard and the pleadings on record as well as case diary produced are also perused. It is seen that a Division Bench by Order dated 27.11.2017 in the case of Jayanta Kr. Das Vs. State of Assam have already held that Section 7 of the Essential Commodities Act, 1955 to be bailable. Similarly by order dated 31 st May, 2004 in BA. No. 1152/2004 in the case of Kailash Kumar Agarwalla Vs. State of Assam, this Court has held that offences committed under Section 23(1)(a) of the Petroleum Act is punishable by simple imprisonment which may extend to 1(one) month and, therefore, the offence has been held to be bailable. It is seen upon perusal of the FIR as well as the case diary that there is no material against the petitioner to suggest that the diesel recovered from his premises has been stolen and/or that there is a complaint by any other person that the same have been wrongfully taken away from him and, therefore, the provisions of Section 378 are not attracted and consequently the ingredients for punishment under Section 379 is also not applicable on the facts of the case. The learned Additional Page No.# 6/7 Public Prosecutor also does not dispute the findings of this Court rendered in Jayanta Kr. Das Vs. State of Assam and Kailash Kumar Agarwalla Vs. State of Assam. Upon perusal of the case diary, it is seen that the petitioner during the course of investigation has also not admitted that he has committed any theft as evident from the case diary. The statement of the other witnesses were recorded are also perused. No incriminating material against the petitioner is found upon perusal of the case diary as such this Court is of the view that further detention of the petitioner in custody is not warranted. Therefore, the petitioner should be released from custody.
11. It is directed that the petitioner shall be released from custody upon furnishing a bail bond of Rs.25,000/- (Twenty Five Thousand only) with two local sureties to the satisfaction of the CJM, Chirang, Kajalgaon. The bail granted shall, however, be subject to the following conditions:-
1. The petitioner shall make himself available before the investigating officer as and when his presence is required for the purpose of further investigation of the case and shall cooperate with the investigation;
2. The petitioner shall not hamper with the investigation or tamper with the evidence of the case;
3. The petitioner shall not directly or indirectly, make Page No.# 7/7 any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer; and
4.That the petitioners shall not leave the territorial jurisdiction of the Dhaligaon Police Station, without obtaining prior written permission from the concerned Investigating Officer of the case.
12. If any of the conditions are found to be violated then the Investigating Officer shall be at liberty to seek cancellation of the bail granted to the petitioner.
13. The Bail Applications is, accordingly, allowed and disposed of.
14. Return the case diary.
JUDGE Comparing Assistant