Bombay High Court
Vikrant Chandrakant Angolkar vs The State Of Maharashtra on 10 December, 2020
Author: Sandeep K. Shinde
Bench: Sandeep K. Shinde
4.ABA St.2632-2020 & ABA St.2980-2020.odt
Shambhavi
N. Shivgan
Digitally signed by
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Shambhavi N.
Shivgan
Date: 2020.12.10
17:10:27 +0530
CRIMINAL APPELLATE JURISDICTION
Anticipatory Bail Application Stamp No. 2632 OF 2020
Vikrant Angolkar .. Applicant
Vs.
The State of Maharashtra .. Respondent
Alongwith
Anticipatory Bail Application Stamp No. 2980 OF 2020
Bhimashankar Rangnath Khade .. Applicant
Vs.
The State of Maharashtra .. Respondent
......
Mr. Sanjeev Kadam i/by Raviraj Parmane Advocate for the
Applicant in ABA St. No.2632/2020.
Ms. Anamika Malhotra, APP for State in both applications.
Mr. S.B. Talekar i/by Talekar & Associates, Advocate for the
Applicant in ABA St. No.2980/2020.
......
Najeeb 1/26
4.ABA St.2632-2020 & ABA St.2980-2020.odt
CORAM : SANDEEP K. SHINDE J.
RESERVED ON : 25TH NOVEMBER, 2020.
PRONOUNCED ON : 10TH DECEMBER, 2020
JUDGMENT :-
1 Applicants seek pre-arrest bail in connection with Crime No. 272/2020 registered with Panvel City Police Station, District Raigad, at the instance of Santosh Motiram Patil, a circle ofcer, for the alleged commission of ofence punishable under Sections 3, 7, 8, 9, 10 of the Essential Commodities Act, 1955 (E.C. Act for short) read with Sections 420, 465, 468, 470, 471, 120-B, 34 of the Indian Penal Code, 1860 and Rule 13 of the Targeted Public Distribution System (Control) Order, 2015 and Section 3 of the Benami Transaction Act, 1988.
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4.ABA St.2632-2020 & ABA St.2980-2020.odt 2 Counsel for the applicants are seeking pre-arrest bail on the two grounds; that
(a) Prosecution case, does not disclose their complicity in the crime; and
(b) Ofences under the Essential Commodities Act are "bailable".
3 At the outset, it may be stated that applicants were granted interim protection, on 2nd September, 2020, but since they did not non-cooperate in the investigation, the interim protection was vacated by the learned Sessions Judge on 15th September, 2020.
4 Facts material for just decision of the applications are as under; Applicant Vikrant Angolkar is an employee of M/s Jay Anand Food Industries, a proprietary concern of co- accused Laxman Patel. Whereas applicant Bhimashankar Khade, is commission agent, in commodity market. Ofences under E.C. Act and Targeted Public Distribution Najeeb 3/26
4.ABA St.2632-2020 & ABA St.2980-2020.odt System (Control) Order, 2015 were registered with reference to, commodity "rice", meant for Public Distribution System (PDS for short). Till date, complicity of 25 accused has surfaced in the crime, who conspired, to divert 'rice' meant for Public Distribution System and targeted population for export through various companies and clearing house agents, M/s Palak Logistics (CHA). Prosecution case is that, Laxman Patel @ Lakhan Patel @ Laxman Dharamshi Patel @ Laxmichand Patel a 'key' accused, conspired with rationing shop owners from Karnataka and other States and diverted huge quantity of rice meant for Public Distribution System for its export. Rice was found hoarded in Take Care Logistics, a Container Freight Station (CFS) at Palaspe, Raigad. In the process of diverting the rice, complicity of traders in commodity market, owners of export houses, and custom house agents has been traced and noticed. It is unfolded, in investigation that Laxman Patel has foated several benami companies / entities, either partnership frms or a proprietary concerns Najeeb 4/26
4.ABA St.2632-2020 & ABA St.2980-2020.odt through which, it is alleged he was managing his business of exporting 'rice'.
5 It may also be stated that, M/s Zenith Impex, is a partnership frm of which, Kanti Kalhotra and Ambavi Bera are partners, who are accused in this crime. It may be stated that accused Ambavi Bera and Laxman Patel are real brothers.
6 On 1st August, 2020, Santosh Motiram Patil, circle ofcer, acting on the information received from API Kadbane, visited the, Take Care Logistics' godown, where they had noticed labourers were repacking the rice from the jute bags into the white and yellow polythene bags depicting logo of "Asian Rice". Precisely 2220 bags containing rice of 50 KG each were found and seized. The rice, found in polythene bags and gunny bags was meant for distribution to targeted population. 652 yellow polythene bags (Asian Rice); 295 white polythene bags and Najeeb 5/26
4.ABA St.2632-2020 & ABA St.2980-2020.odt 1273 jute bags with print Food Corporation of India (Government of Punjab and Haryana) containing rice weighing around 1.10 Lacs Kg was seized. Seizure panchanama was drawn in the presence independent Panchas, whereafter the subject crime was registered. 7 Before I proceed to narrate facts, unfolded in the investigation, it may be stated that, M/s Take Care Logistics is 'CFS' i.e. Container Freight Station at Palaspe, District Raigad. 'Palak Logistics' is CHA i.e. Custom House Agent a clearing and forwarding agents of M/s Take Care Logistics. One, Ashok, is owner of Palak Logistics and Vinay Mange, is a person authorized who does work of clearing and forwarding on behalf of Palak Logistics. Both are accused herein.
8 It is prosecution case that Pramod Sawant, Manager of M/s Take Care Logistics who was present, when raid was conducted, informed the raiding party, that Iqbal Najeeb 6/26
4.ABA St.2632-2020 & ABA St.2980-2020.odt Kazi (co-accused) is owner of this 'CFS' and movement of goods stored in the Container Freight Station, is subject to control of custom authorities and/ or CHA. Pramod Sawant informed the raiding party, that one Bhimshankar Khade (co-accused in A.B.A. 2980/2020), a commission agent with Agricultural Produce Market Committee (APMC for short), Barshi, procures/ collects rice meant for distribution to targeted population and sells to Laxman Patel. He disclosed, that 2220 rice bags were stored in the godown of Take Care Logistics being CFS, as per shipping bill check list no. 4078881, for export, through M/s Jindatt Industries, Ahmedabad. Mr. Jitendra Mehta, is director of Jindatt Industries. He is a wanted accused. Pramod Sawant further disclosed that after bringing the rice in the Take Care Logistics, (Container Freight Station), permission was sought for repacking the rice from gunny bags to polythene bags. It appears, Mr. Dharmendra Kumar Custom Superintendent, granted the permission on 25 th July, 2020. A statement of Customs Superintendent, suggests the Najeeb 7/26
4.ABA St.2632-2020 & ABA St.2980-2020.odt permission for repacking rice facts was manipulated by inserting to shipping bills viz. 4088467 dated 25 th July, 2020 and 4078881. His statement also suggests that 110 metric tone rice was brought in godwon of the Take Care Logistics as per shipping bill 4078881. It is disclosed in the investigation that the rice brought in the 'CFS' vide shipping no. 4078881 initially was in the name of Jindatt Industries but later endorsed in the name of K.T. exports at the instance of Laxman Patel. One Anshul Jain (co-accused) is director of K.T. exports.
9 It is unfolded in the investigation, that the rice stored in the Container Freight Station was brought from Karnataka by 'drivers', Patil and Udhad, who in the statements disclosed that they had loaded 1012 rice bags in two trucks on 23rd - 24th July, 2020 at Taluka Moralgi, District Belgaon, Karnataka, on instructions by Bua Salgare (wanted accused). Their statements show that they were instructed, to unload the rice bags at Take Care Logistics Najeeb 8/26
4.ABA St.2632-2020 & ABA St.2980-2020.odt and were handed over invoices of M/s Ravi Traders and M/s M.B. Hebally and Sons dated 24th July, 2020 issued in the name of M/s Jay Anand Food Industries. It may be stated that Jay Anand Food Industries is a proprietary concern, of Laxman Patel and applicant Vikrant Angolkar is employee of M/s Jay Anand Food Industries. Therefore, statements of two drivers suggest on 23rd - 24th July, 2020, they transported rice from Karnataka and unloaded 1012 jute bags containing rice at Take Care Logistics (CFS) at the instance of M/s Jay Anand Industries a proprietary concern of key accused Laxman Patel.
10 It is argued by learned APP that the invoices found in the investigation were manufactured and forged by accused in an attempt to project that the 'rice' found in godown was purchased from legitimate source. In support of this submission, prosecutor, brought to my notice, invoices of M/s Dhanlaxmi Trading Company, Barshi. These invoices were in the name of M/s Zenith Impex, Khopoli, Najeeb 9/26
4.ABA St.2632-2020 & ABA St.2980-2020.odt dated 25th July, 2020, for rice sold thereunder. It appears from the invoices that one Dhanraj Mule (co-accused) who claims to be owner of M/s Dhanlaxmi Trading Company, had supplied 2220 bags of rice 50 KG each to M/s Zenith Impex on 25th - 26th July, 2020, through commission agent, Bhimashankar Khade (applicant before this Court). Invoices show address of Dhanlaxmi Trading Company was "Laxmi Sopan Market, Jamgaon Road, Barshi Dist. Solapur". . Be that as it may, in connection with the supply of rice by Dhanlaxmi Trading Company to Zenith Impex, ofcer has recorded a statement of a truck owner in whose truck 'rice' was transported. His statement shows one Rajesh Kilche (co-accused) wanted to transport wheat from village Indi in Karnataka to Palaspe at Dist. Raigad. However, instead transporting wheat, rice was transported and rice bags were unloaded at Take Care Logistics, Dist. Raigad. He disclosed in statement that one unknown person at the instance of, Rajesh Kilche handed over invoices of M/s Najeeb 10/26
4.ABA St.2632-2020 & ABA St.2980-2020.odt Dhanlaxmi Trading Company to driver of the truck en-route at Palaspe at Village Temborni, Dist. Solapur. Statement further shows Dhanraj Mule (co-accused) proprietor of Dhanlaxmi Trading Company, handed over to him cess paid certifcate issued by the APMC, Barshi in respect of rice transported by him from Karnataka to Dist. Raigad. However, on verifcation, APMC, Barshi rejected the certifcate and stated that no such, cess paid certifcate was issued to M/s Dhanlaxmi Trading Company. It is further unfolded in the investigation that M/s Dhanlaxmi Trading Company had no business set up, at Laxmi Sopan Market Yard, Barshi. Address disclosed in the invoices, when inquired into, the Chariman of Laxmi Sopan Market, informed that no frm in the name of Dhanlaxmi Trading Company has establishment, in Laxmi Sopan Market Yard. This information was sought in exercise of provision of Section 91 of the Code of Criminal Procedure, 1973. Thus primary evaluation of the evidence suggests invoices of Dhanlaxmi Trading Company, Ravi Traders and M/s M.B. Najeeb 11/26
4.ABA St.2632-2020 & ABA St.2980-2020.odt Hebally and Sons were manufactured to project that the rice horded and stocked in the Take Care Logistics (CFS) was purchased from a legitimate source. Equally it suggests Khade (applicant) and Dhanraj Mule, had actively participated in the process of diverting rice from Public Distribution System (PDS) to open market. 11 In the course of investigation, 800 empty jute bags were found in the premises of Zenith Impex. When enquired, Mr. Vikrant Angolkar (applicant) disclosed that, these bags were purchased from Prakash Duseja, dealer in plastic and gunny bags. However, Prakash Duseja denied this fact, in his statement under Section 164 of Cr.P.C., but stated, he had issued back-dated bill no.432, as required by Zenith Impex.
12 Thus the available evidence suggests and discloses a large conspiracy was hatched by the accused under the leadership of Laxman Patel for diverting the 'rice' Najeeb 12/26
4.ABA St.2632-2020 & ABA St.2980-2020.odt meant for the public distribution to open market with the active assistance of co-accused. Evidence prima facie, shows before the registration of the subject crime Laxman Patel through his employees and with the active assistance of other export houses exported 2076 metric ton rice to various countries like Algeria, UAE, Kenya, statement of employee of Y.K. Logistics says so. Herein Zenith Impex is closely held company of Jay Anand Food Industries inasmuch as one of the partners of Zenith Impex is the brother of Laxman Patel. Applicant herein is an employee of Laxman Patel, working for several companies/ entities and closely held companies of Laxman Patel. Though, it is argued that applicant is innocent and just works at the command of Laxman Patel, fact remains he is close associates of Laxman Patel and manages business of Zenith Impex, Jay Anand Food Industries. It may be stated, all the companies have their ofces situated at Kalyan. It also appears that applicant Vikrant Angolkar did not respond to notice under Section 41 (a) of the Code of Criminal Najeeb 13/26
4.ABA St.2632-2020 & ABA St.2980-2020.odt Procedure, 1973 and thus the pre-arrest interim protection was withdrawn by the Sessions Court. There are four cases registered against the applicant under the Essential Commodities Act vide Crime No. 274/2020, 145/2020, 146/2020 and 147/2020.
13 So far as the applicant Bhimashankar Khade, is concerned, it may be stated that prima facie, his complicity in the process of collecting the rice in huge quantity from various rations shop from Karnataka and other State has surfaced. On primary evaluation of the evidence shows he was active in collecting the rice with the help of Rajesh Kilche and used to sell it to Laxman Patel. So far as present crime is concerned, it is contended that he is a commission agent and had paid market cess while purchasing the rice allegedly supplied to Zenith Impex. However on verifcation APMC rejected the certifcate, thus it appears certifcate was manufactured to project, rice was purchased from open market. Call Details Record (CDR) also show he was in Najeeb 14/26
4.ABA St.2632-2020 & ABA St.2980-2020.odt constant touch with Laxman Patel and Dhanraj Mule. There are three cases registered against Khade; one under Indian Penal Code, 1860 i.e. Crime No. 10/2011; and two cases under Essential Commodities Act. It may also be stated that 16 cases are registered against Laxman Patel, a key person under the provision of Essential Commodities Act. 14 Thus, in consideration of the facts of the case, prima facie, the ofence is in the nature of 'economic ofence'. Material, prima facie shows, applicants' complicity. In my view to unearth the material evidence their custodial interrogation cannot be denied to State. It may be stated that key accused Laxman Patel and many other, are keeping themselves away from the process law. 15 Learned counsel for applicants next submitted that ofences under the Essential Commodities Act, 1955 are bailable. In support of these submissions, they have relied on following Amendments Act;
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4.ABA St.2632-2020 & ABA St.2980-2020.odt
(i) Essential Commodities (second amendment) Act, 1967
(ii) Essential Commodities (amendment) Act, 1974
(iii) Repealing and Amending Act, 1978
(iv) Essential Commodities (Special Provisions) Act, 1981 and the judgment of the High Court of Gauhati in the case of Jayant Kumar Vs. State of Asam.
16 I have perused the aforesaid acts and the cited judgment. Let me note changes and amendments brought in Section 10-A of the Essential Commodities Act.
(i) The Essential Commodities (Second Amendment) Act, 1967 has inserted Section 10-A . It reads as under;
"10-A. Ofences to be cognizable and bailable -
Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (5 of 1898), every ofence punishable under this Act shall be "cognizable and bailable."
(emphasis supplied).
(ii) The Essential Commodities (Amendment) Act, 1974 containing Sections 2 to 14 further, amended, Section 10-A Najeeb 16/26
4.ABA St.2632-2020 & ABA St.2980-2020.odt and the words "and bailable" were omitted. It came into efect on 22nd June, 1974.
Statement of Objects and Reasons for amendment were "The hoarders, black-marketeers are playing hell with the lives of millions of people in the country by violating the provisions of the Essential Commodities Act, 1955.
These man-eaters are too cunning and always escape through the lacunae in the law. Even in case when they are caught red-handed, they get immediate bail even form the Police Ofcer and try to tamper with evidence and foil the process of investigation. So, the administration of justice is reduced to a farce.
These undesirable and anti-social elements should be sternly dealt with.
To achieve the very object of the Act, to secure efective administration of justice to ensure a free and fair investigation, it is necessary that such persons should not be released on bail.
Hence it is necessary to make every ofence under this Act non-bailable." (emphasis supplied) Najeeb 17/26
4.ABA St.2632-2020 & ABA St.2980-2020.odt
(iii) In 1978 Parliament, enacted Repealing and Amendment Act, 1978 (38 of 1978) to repeal certain enactments and to amend certain other enactments.
In terms of Section 2 of the Repealing and Amendment Act, 1978; the enactments specifed in the First Schedule were repealed to the extent mentioned in the fourth column thereof. Under frst schedule, several enactments were repealed including the Essential Commodities (Amendment) Act, 1974 (Section 2 to 12 and 14). Section 4 of the Repealing and Amendment Act, 1978 reads as under ;
" SECTION 04 : SAVINGS "
"The repeal by this Act of any enactment shall not afect any other enactment in which the repealed enactment has been applied, incorporated or referred to: and this Act shall not afect the validity, invalidity, efect or consequences of anything already done or sufered, or any right, title, obligation or liability already acquired, accrued or incurred or any remedy or proceeding in respect thereof, or any release or discharge of or from any debt, penalty, obli-gation, liability, claim or demand, Najeeb 18/26
4.ABA St.2632-2020 & ABA St.2980-2020.odt or any indemnity already granted, or the proof of any past act or thing' nor shall this act afect any principle or rule of law, or established jurisdiction, from or course of pleading, practice or procedure, or existing usage, custom privilege, restriction, exemption, ofce or appointment, notwithstanding that the same respectively may have been in any manner afrmed or recognised or derived by, in or form any enactment hereby repeated: nor shall the repeal by this Act of any enactment revive or restore any jurisdiction, ofce, custom, liability, right, title,privilege, restriction, exemption, usage, practice, procedure or other matter or thing not now existing or in force.
(iv) In the year 1987, the Essential Commodities (Special Provisions) Act, 1981 was enacted to make certain special provisions by way of amendments to the Essential Commodities, 1955 for a temporary period initially for fve years and thereafter 10 years more for dealing more efectively with persons indulging in hoarding and black marketing of and profteering in, essential commodities and with the evil of vicious infationary prices of such commodities. This act of 1981 amended Section 10-A of the principal act and ofences under the principal act were Najeeb 19/26
4.ABA St.2632-2020 & ABA St.2980-2020.odt made "cognizable and non-bailable". This temporary act was in force for 15 years i.e. till 1997.
17 Thus, on plain reading of the aforesaid amendment and Repealing and Amending Act and temporary act of 1981, the following position emerges;
(i) That since 1967 till 21st June, 1974, ofences under the Essential Commodities Act, 1955 were cognizable and bailable. (emphasis supplied)
(ii) That since 22nd June, 1974 onwards in view of the omission of words "And Bailable" in view of the Essential Commodities Act, 1974, ofences under the Essential Commodities Act were "Cognizable". It follows that the ofence committed under the Essential Commodities Act punishable with imprisonment for three years and upwards but not more than seven years, it would be non-bailable and ofence punishable with imprisonment less than three years or with fne only, would be a bailable once, in terms of the First Schedule Part II of the Code of Criminal Procedure, Najeeb 20/26
4.ABA St.2632-2020 & ABA St.2980-2020.odt 1973.
(iii) In 1978, Repealing and Amending Act, 1978, repealed the Essential Commodities (Amendment) Act, 1974; to the extent Sections 2 to 12 and Section 14. 18 It is, therefore, argued that Repealing Act had repealed only Sections 2 to 12 and 14 of the Essential Commodities (Amendment) Act, 1974 and not entire Act. Thus, what sought to be argued is that, provisions of Section 6A of the General Clauses Act, cannot be applied to the facts of the case. Submission is that, repeal as above did not afect parent Act, i.e., Essential Commodities Act as it stood prior to 22nd June, 1974. Thus, submitted, Section 10A of the Essential Commodities Act as it was prior to coming into force Essential Commodities (Amendment) Act, 1974 stood revived, which says ofences punishable under the Essential Commodities Act shall be' "cognizable and bailable". The counsel in support of their contention strongly relied on the judgment of the High Court in Jayant Najeeb 21/26
4.ABA St.2632-2020 & ABA St.2980-2020.odt Kumar (Supra).
19 I disagree with the submission of the learned counsel for the applicants and the ratio laid down in the judgment of the High Court of Gauhati.
. Hon'ble Apex Court in the case of Jethanand Betab v. State of Delhi AIR 1960 SC 89 has elaborated the object of Repealing and Amending Act in terms that the main object of the repealing Act is only to strike out the unnecessary Acts and excise dead matter from the statute and further observed thus, case of Repealing and Amending Act directly falls within four corners of Section 6A of the General Clauses Act, 1897. As by way of the Amending Act of 1949, text of the Act of 1933 were amended by insertion of Section 6A, therein repeal of the Amending Act by 1952 Act did not afect the continuance of Amendment Act by the enactment was repealed.
. It is settled law that in regard to the repeal of Najeeb 22/26
4.ABA St.2632-2020 & ABA St.2980-2020.odt Amending Act under Section 6-A of the General Clauses Act, the amendment already efected in the original Act is not repealed unless there is contrary intention, express or implied in the Repealing Act.
. The question, therefore, falls for consideration is whether the repeal of Sections 2 to 12 and 14 of the Essential Commodities (Amendment) Act, 1974 by Repealing and Amending Act, 1978 shall afect the amendments already brought into the main Act. . In my view, provisions of Section 6-A of the General Clauses Act answers this question in negative subject to condition that there being nothing in the intendment of the Repealing Act to the contrary. I have perused Section 4 Saving clauses of Repealing and Amending Act, 1978 (reproduced hereinabove), which infact does not suggest contrary intention.
. In the case of Sahdevan v. R Kesavan Nair AIR 1973 Kerala 136, it is observed purpose of amending Act " The purpose of an amending Act, as observed by TC Raghavan J in Raman Najeeb 23/26
4.ABA St.2632-2020 & ABA St.2980-2020.odt Sahdevan v R Kesavan Nair, is to plant the necessary amendments in the parent or the main Act, and once such planting has been efected, the planting Act (the amending Act) having served its purpose, need not remain any more to tend the plant, as it were; the plant has taken root in the main Act, and thereafter, the amending Act has only to be repealed: If an amending Act is so repealed by a repealing Act, the repeal does not afect the plant, the amendment having been already planted in the main Act."
20 In the case in hand since 1967 till 21 st June, 1974, ofences under the Essential Commodities Act were cognizable and bailable. However, Essential Commodities (Amendment) Act, 1974 duly incorporated by 'omission' of words "And Bailable". Therefore, even though Sections 2 to 14 of the Amendment Act, 1974 are repealed the, omissions thereunder made already in the amended Act shall continue to be in operation subject to condition " unless a diferent intention appears" in the Act that has repealed Amendment Act. In other words, omission of words "Non bailable" by Amendment Act 1974, which Act has been repealed by 1978 Act, would not ipso-facto restore the provisions of Najeeb 24/26
4.ABA St.2632-2020 & ABA St.2980-2020.odt Section 10A of the Parent Act, i.e., Essential Commodities Act, as it stood prior to Amendment Act, 1974 came into force unless such omitted are incorporated in the Parent Act by the Legislation. Thus, taking into consideration facts of the case and the law laid down by the Apex Court and other High Courts, I hold that repeal of Sections 2 to 14 including Section 7 which amended Section 10A of the Essential Commodities Act though repealed in 1978 by Repealing and Amending Act shall not afect amendments already brought into the main Act. Resultantly, position as it stands today that ofences under the Essential Commodities Act are cognizable and whether bailable or not but whether such ofences are bailable or not would be subject to provisions of Part II of the First Schedule of the Code of Criminal Procedure, 1973.
21 In the case in hand ofences allegedly committed would fall under Section 7(1)(a)(ii) punishable upto seven years and, therefore, cognizable and non-bailable. In Najeeb 25/26
4.ABA St.2632-2020 & ABA St.2980-2020.odt consideration of the facts of the case and for the reasons stated hereinabove both the applications are rejected.
(SANDEEP K. SHINDE, J.) Najeeb 26/26