Gujarat High Court
State Of Gujarat vs Natwarlal Pitambardas Patel on 16 October, 2015
Author: A.J.Desai
Bench: A.J.Desai
R__CR.MA___6848/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR CANCELLATION OF BAIL) NO.
6848 of 2015
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STATE OF GUJARAT....Applicant Versus NATWARLAL PITAMBARDAS PATEL....Respondent ========================================================== Appearance:
MR MITESH AMIN, LD.PUBLIC PROSECUTOR for the Applicant. MR DIPEN DESAI, ADVOCATE for the Respondent No. 1 ========================================================== CORAM: HONOURABLE MR.JUSTICE A.J.DESAI Date : 16/10/2015 CAV ORDER
1. By way of the present application under Section 439(2) of the Code of Criminal Procedure, the applicant herein - State of Gujarat, through the Public Prosecutor, has challenged the judgement and order dated 06/04/2015 passed by learned 7th Additional Sessions Judge, Vadodara in Criminal Misc.Application No.612 of 2015, by which, learned Judge has exercised his discretionary power u/s.438 of the Code of Criminal Procedure and has ordered to release the respondent-accused in the event of his arrest in connection with an offence being C.R.No.II- 29 of 2015 registered with Karjan Police Station, for the offences punishable under Sections 467, 468, 471, 120(B), 114 of the Indian Penal Code read with Section 3(2)(c), 7(i)(a)(ii) & 8 of Essential Commodities Act,1955 read with Clauses 7 and 25(1) of Fertilizer (Control) Order,1985.
2. Pursuant to Notice issued by this Court, the respondent - accused has appeared and has filed an Affidavit-Page 1 of 8
HC-NIC Page 1 of 8 Created On Sat Oct 17 02:44:34 IST 2015 R__CR.MA___6848/2015 ORDER in-reply opposing grant of any relief, as prayed for by the State of Gujarat.
3. Brief facts, emerge on the record, are as under:
An Agriculture Officer on behalf of Director of Agriculture, Vadodara, lodged an FIR before Karjan Police Station on 11/03/2015 stating that one Yogendrasinh alias Jugalbhai Mansinh Solanki - accused, who was found present in his field in Survey No.50/A, Block No.185, situated at Anastu village in the out skirt of village Karjan on the way of village Padra with 3000 bags, each containing fifty kgs. Chemical fertilizers, valued at Rs.9,85,600/- unauthorisedly without any pass or permit as required under the Fertilizer (Control) Order,1985 by committing breach of provisions of Control Order,1985. It has been averred in the complaint that quantity of the unauthorised chemical fertilizer is without any pass or permit and it has been converted into technical grade Urea by process of repacking with 900 empty bags which were in possession of accused Yogendrasinh@Jugalbhai Mansinh Solanki and said chemical fertilizer was of subsidized rate which is meant for agriculture purpose is now to be used for industrial purpose. According to complainant, accused Yogendrasinh @ Jugalbhai Mansinh Solanki was found repacking chemical fertilizer in industrial bags, which would amount to an offence. It has been further averred in the complaint that in connection with this offence, to take legal action against accused as well as other connected accused and to take action for the breach of clause 7 and clause 25(1) of Fertilizer (Control) Order,1985 and under sec.3(2)(c) which is punishable under section 7(i)(a)(ii) of the Essential Page 2 of 8 HC-NIC Page 2 of 8 Created On Sat Oct 17 02:44:34 IST 2015 R__CR.MA___6848/2015 ORDER Commodities Act,1955. While submitting this complaint, complainant has produced panchnama, one empty bag of technical grade Urea Fertilizer, one empty bag of KRUBHCO Urea Fertilizer, one stitching machine, twelve Rolls of thread, loose threads etc. were found.
After the registration of FIR with Karjan Police Station, Vadodara (Rural) bearing CR No.II-29/2015, the Investigating Officer has found involvement of total eleven accused including the present opponent. Against the present opponent, who is accused no.11, on the basis of investigation offence under sec.467, 468, 471, 120(B) and 114 of Indian Penal Code are added in addition to the offences mentioned in the complaint.
Having come to know that the respondent has been involved in the offence being Chairman of Gujarat State Cooperative Marketing Federation Ltd. (hereinafter referred to as "GUJCOMASOL"), he has filed an application u/s.438 of the Code of Criminal Procedure before learned District and Sessions Judge, Vadodara and has prayed that he may be released on regular bail in the event of his arrest for the said offences. Learned Additional Sessions Judge after considering the record, exercised his power and ordered that he may be released on bail in the event of his arrest on certain terms and conditions by an order dated 06/04/2015.
4. Mr.Mitesh Amin, learned Public Prosecutor assisted by Mr.J.K.Shah, learned Additional Public Prosecutor, has vehemently submitted that learned Sessions Court has passed the impugned order in haste and ought not to have released the respondent-accused when the investigation was Page 3 of 8 HC-NIC Page 3 of 8 Created On Sat Oct 17 02:44:34 IST 2015 R__CR.MA___6848/2015 ORDER in progress. He further submits that the fertilizer, which is to be distributed to the needed agriculturist at the lesser rate, has been sold to the individuals at higher rates, in connivance with the present respondent-accused. He would further submit that co-accused namely Hasmukhbhai Patel, who is friend of respondent-accused, is directly involved in the offence of huge quantity of Urea Fertilizer has been distributed to the individuals at the higher price, though the same was meant for needy agriculturist. By taking me through the statements of witnesses namely Ankitsinh Dashrathsinh Jadeja, Dilipbhai Nagjibhai Patel, etc., he would submit that the respondent being a Chairman of GUJCOMASOL was aware and was in fact in conspiracy to sell the Urea Fertilizer to the individuals at higher rate for his personal benefits. He would further submit that being an influenced person and being a Chairman of the said Institution, he has by-pass all the bye-laws of the said Institution for his personal benefits and has committed serious crime. He would submit that Fertilizer namely Urea had been reached at the hands of the respondent-accused instead of needy agriculturist and conspiracy has been hatched by all the accused and, therefore, learned Sessions Court ought not to have released the applicant on anticipatory bail. He would submit that by process of repacking, quantity of the unauthorised chemical fertilizer has been converted into technical grade Urea, which clearly make an offence punishable under sections 467, 468, 471, 120(B), 114 of the Indian Penal Code and, therefore, learned Sessions Court ought not to have released the applicant on anticipatory bail.
5. On the other hand, Mr.Dipen Desai, learned Page 4 of 8 HC-NIC Page 4 of 8 Created On Sat Oct 17 02:44:34 IST 2015 R__CR.MA___6848/2015 ORDER advocate appearing for the respondent-accused has vehemently opposed this application and submitted that the respondent has been wrongly involved in the offence with ulterior motive since the respondent is a political leader, who has respectable position in the society. He would submit that the respondent was not named in the FIR. However, the Investigating Officer has deliberately recorded the statements of the witnesses and co-accused, so as to arraign him as a conspirator, who indirectly involved the respondent with an offence only on the ground that he is Chairman of GUJCOMASOL, which is carrying on its activities for the benefits of agriculturist of the State of Gujarat. He would submit that the statements, which have been relied upon by the applicant- State of Gujarat, do not support the case of the prosecution, as alleged in the FIR that he is Conspirator in the offence. By taking me through the various orders passed in various litigations by different Courts and Co-operative Tribunal as well as High Court, he would submit that there is deliberate intention of Investigating Agency to harass the respondent-accused. By taking me through the Affidavit-in- reply, he would submit that in past also such FIR has been registered against the respondent, however, the same has been challenged by way of filing petition under Section 482 of the Code of Criminal Procedure before this Court and the said petition has been entertained by this Court and stay has been granted against further investigation. He would submit that learned Sessions Court has dealt with the case in detailed and, thereafter exercised his power under section 438 of the Code of Criminal Procedure, which does not call for any interference unless there is mistake in exercising the power so far as bail is concerned. Further, it is not the case of the Page 5 of 8 HC-NIC Page 5 of 8 Created On Sat Oct 17 02:44:34 IST 2015 R__CR.MA___6848/2015 ORDER applicant- State that the respondent has committed breach of any of the conditions imposed by learned Sessions Court imposed upon him while releasing him on anticipatory bail in the month of April,2015. He has relied upon several decisions.
6. I have heard learned advocates appearing on behalf of the respective parties and perused the papers of investigation. It is an undisputed fact that the respondent is a Chairman of GUJCOMASOL, who is carrying on various activities for the benefits of the farmers in the State of Gujarat. The members of the Federation are performing different types of activities including fertilizer. Being a Chairman of such Institution, he is not expected to watch all the daily activities of the Federation i.e. distribution of fertilizer, etc. and, therefore, it is dangerous to accept the submission made by the applicant-State of Gujarat that the respondent-accused is a conspirator. Statements of above referred witnesses do not directly involve the present respondent, however, suggest that one of the witnesses know the respondent-accused as a close friend of co-accused.
7. I have also gone through the impugned order passed by learned Additional Sessions Judge, which is an exhaustive one. It appears that learned Sessions Judge has dealt with each aspects of the matter and, thereafter, exercised his power u/s.438 of the Code of Criminal Procedure, therefore, in my opinion, does not call for any interference of this Court. It is not the case of the applicant- State that the respondent has committed breach of any of the conditions imposed by learned Sessions Court.
8. Considering the parameters laid down by the Page 6 of 8 HC-NIC Page 6 of 8 Created On Sat Oct 17 02:44:34 IST 2015 R__CR.MA___6848/2015 ORDER Honb'le Apex Court in the case of Bhagirathsinh Judeja v. State of Gujarat [AIR 1984 SC 372] and Dolatram v. State of Haryana [1995 SCC (Cri.) 237] for exercise of powers under Section 439(2) of the Code, it cannot be said that other than legal consideration weighed with the learned Additional Sessions Judge for exercising powers and keeping in mind law laid down by the Honb'le Apex Court in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra & Ors. reported in [(2011)1 SCC 694], the respondent - accused is granted anticipatory bail which do not make out a case for this Court to exercise powers under Section 439(2) of the Code of Criminal Procedure.
9. Considering the ratio laid down by the Hon'ble Apex Court in various decisions, powers of the learned Appellate Court are different than granting the same. In case of Dolatram and others V/s. State of Haryana, reported at 1995(1) SCC 439, Hon'ble Supreme Court has held that bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial. Therefore, I am of the opinion that when the respondent- original accused has been released on anticipatory bail and has not committed any breach of conditions imposed by the court, there are no reasons to exercise my power under section 439(2) of the Code of Criminal Procedure and cancel the regular bail granted in favour of respondent - original accused.
10. In view of the above, the present application is Page 7 of 8 HC-NIC Page 7 of 8 Created On Sat Oct 17 02:44:34 IST 2015 R__CR.MA___6848/2015 ORDER meritless and the same deserves to be dismissed and is accordingly dismissed. Notice is discharged.
[A.J.DESAI, J.] *dipti Page 8 of 8 HC-NIC Page 8 of 8 Created On Sat Oct 17 02:44:34 IST 2015