Bombay High Court
Kanhiya Madanlal Agrawal vs The State Of Mah And Anr on 7 August, 2018
Author: T.V. Nalawade
Bench: T.V. Nalawade
1 CrAppln 3600 10J
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 3600 OF 2010
Kanhiya s/o Madanlal Agrawal,
Age 36 years, Occ. Business,
R/o. Komti Galli, Hingoli, Tq. &
Dist. Hingoli. ... Applicant
(Ori. Accused )
VERSUS
1. The State of Maharashtra,
Through P.S.I. Hingoli (City)
Police Station.
2. Collector, Hingoli. ... Respondents
...
Advocate for Applicant : Mr. Pawankumar S. Agrawal.
APP for respondent No. 1/State : Mr. S. J. Salgare.
CORAM : T.V. NALAWADE &
K. L. WADANE, JJ.
RESERVED ON : 24th JULY, 2018
PRONOUNCED : 07th AUGUST, 2018.
ON
JUDGMENT ( PER K.L. WADANE, J.) :
1. Rule. Rule made returnable forthwith. With the consent of the parties, this application is taken up for final disposal. 1/7 ::: Uploaded on - 07/08/2018 ::: Downloaded on - 10/08/2018 02:03:16 :::
2 CrAppln 3600 10J
2. This application is filed by the applicant under the provisions of section 482 of the Code of Criminal Procedure for relief of quashing of first information report No. 3020/2010 dated 16.06.2010, on the basis of which offence came to be registered against the applicant under section 3 punishable under section 7 and 8 of the Essential Commodities Act,1955, and in contravention of Clause 5 and 7 of the Fertilizers (Control) Order 1985.
3. On 16.06.2010 Mr. Londhe, Police Sub-Inspector of police Station Hingoli (City) lodged complaint to the police station by alleging that on 16.06.2010 when he was present on duty at police station, one Mr. Bharat Dhale informed on telephone that DAP fertilizers from Gopal Fertilizers were being sold in black market and it was loaded in a tempo No. MH-22/342. On receipt of such information immediately Mr. Londhe rushed to the spot of incident. At about 19.15 hours he found that the aforesaid tempo was parked near godown and coolies were loading the fertilizer bags. On seeing the police persons the coolies were ran away. The villagers from village Garmal, Bhogaon, Basamba, Andheri were present there. They informed that the DAP fertilizer was not available in the market, however, it was being sold in the black market in the night time. Complainant inspected the premises and found 2/7 ::: Uploaded on - 07/08/2018 ::: Downloaded on - 10/08/2018 02:03:16 ::: 3 CrAppln 3600 10J that 14 bags of fertilizers were loaded in the tempo. The complainant enquired with the applicant/owner of the shop/godown about the purchase receipt of the fertilizers, on which the applicant informed that he has no such receipt. Therefore, 14 bags from the tempo and 298 bags from godown were seized. On the basis of the complaint lodged by the complainant offence came to be registered against the applicant as referred above.
4. We have heard the arguments of Mr. Agrawal, learned counsel for applicant and Mr. Salgare, learned APP for the respondent/State.
5. During the course of argument learned counsel for applicant submitted that the applicant was carrying business of sale and wholesale of fertilizers under the name and style "M/s. Gopal Pesticides" at Hingoli. The applicant is distributor of the fertilizers of a Coromandal Fertilizer company for Hingoli district. On 13.04.2018 the Agricultural Development Officer, Zilla Parishad, Hingoli, renewed the licence issued to the applicant for carrying the business of wholesale and retail sale of fertilizers under Fertilizer (Control) Order, 1985. On 15.06.2010 the applicant received 9 tons of DAP fertilizer from Coromandal Company through railway rack at railway station Hingoli and same was 3/7 ::: Uploaded on - 07/08/2018 ::: Downloaded on - 10/08/2018 02:03:16 ::: 4 CrAppln 3600 10J delivered through authority letter No. 134. Accordingly, the applicant also obtained permission to store the fertilizers in a temporary godown situated near Kabra Oil-mill and necessary fees for that was paid by challan.
6. Learned counsel for applicant further submitted that on 16.06.2010 Mr. Baburao Chavan and his brothers have each purchased 15 bags total 60 bags of DAP from the applicant vide bill 5263 to 5266. So, accordingly the applicant has issued bill in favour of the purchasers as numbered above. Learned counsel for applicant further submitted that the applicant is a licence holder and authorized to sell the fertilizers and there is no contravention of any clause of the Fertilizer (Control) Order, 1985. So also there is no contravention of provision of section 3 of the Essential Commodities Act, 1955.
7. As against this learned APP for respondent/State submits that the applicant was selling the fertilizers at odd time, therefore, the villagers/agriculturists were suspecting that fertilizers were being sold in black market.
8. We have perused the papers of investigation including the statement of witnesses namely Bharat Dhale, Madan Dhale, Balaji Pawar and others. From their statement it is seen that the DAP fertilizer 4/7 ::: Uploaded on - 07/08/2018 ::: Downloaded on - 10/08/2018 02:03:16 ::: 5 CrAppln 3600 10J was not available in the market therefore they enquired with the applicant about availability of the fertilizer DAP, the applicant told that the fertilizer is not available. However, on the same day at about 7 p.m. the villagers/agriculturists noticed that the bags of fertilizers were being loaded in the tempo and therefore they suspect that such fertilizers were being sold in black market.
9. Looking to the statement of various witnesses it appears that the information to the police station was given by the agriculturists merely on suspicion. From the record it appears that the applicant had received 9 tons fertilizers from Coromandal Company. Further it appears from the record that the four bills in favour of Baburao Chavan and others were issued regarding sale of 15 bags each at the rate of Rs. 522/- per bag. Thus, from the record it appears that the sale of the fertilizers by the applicant was under the licence issued in his favour. Furthermore, it is not seen from the record that what was the control rate at the time of incident. Furthermore, merely because the applicant has sold the fertilizers and the sale were being taken at the evening time does not mean that the said fertilizers were sold in black market. It is contended by the applicant that he is a licence holder to distribute, sale the fertilizers in Hingoli District.
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6 CrAppln 3600 10J 10 On perusal of the provision of the Fertilizer (Control) Order, 1985 or the Essential Commodities Act, no where it is defined or clarified as to the time, during which the commodities are to be sold. The first information report is registered for contravention of Clause 5 and 7 of the Fertilizer (Control) Order, 1985. Clause 5 deals with the issue of cash credit memorandum and the every dealer shall issue a cash or credit memorandum to a purchaser of a fertilizer in Form M. Copies of the cash/credit memo are placed on record and nobody has complained that the cash memo as required under clause 5 was not issued to the purchasers. Clause 7 deals with the registration of industrial dealers and authorisation of other dealers. The first information report is wrongly registered for the contravention of Clause
7. Herein the present case no such issue is involved.
11. Section 3 of the Essential Commodities Act ,1955 deals with the powers to control production, supply, distribution, etc. of essential commodities. The powers are vested in the Central Government to regulate the supply of essential commodities for securing their equitable distribution and availability at fair prices. It was nobody's complaint that the applicant had sold the fertilizers excess than the control rate. It is not clear from the record that at the relevant time what was the control 6/7 ::: Uploaded on - 07/08/2018 ::: Downloaded on - 10/08/2018 02:03:16 ::: 7 CrAppln 3600 10J rate of the fertilizer. In such circumstances, it cannot be inferred that the applicant was selling the fertilizers in black market.
12. In view of the above, we are of the opinion that the complaint is merely filed against the applicant on suspicion and prima- facie it is seen that there is no contravention of Clause 5 or 7 of the Fertilizer (Control) order 1985. Furthermore, the offence under section 3 punishable under section 7 and 8 of the Essential Commodities Act, 1955, is not even prima-facie constituted. In such circumstances the prosecution on such material cannot be allowed to be continued, as there is no contravention of any provision of the Essential Commodities Act, 1955 or any clause of the Fertilizers (Control) Order 1985. Hence, following order :
ORDER
1. The application is allowed.
2. Relief is granted in terms of prayer clause 'C'.
3. Rule is made absolute in those terms.
13. Criminal Application is disposed of.
(K. L. WADANE, J.) (T.V.NALAWADE, J.) mkd 7/7 ::: Uploaded on - 07/08/2018 ::: Downloaded on - 10/08/2018 02:03:16 :::