Bombay High Court
Sandip S/O. Kailasappa Lakade vs The State Of Maharashtra And Anr on 9 October, 2019
Bench: T.V. Nalawade, R.G. Avachat
1 Applications 3194-3195/2019
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Criminal Application No.3194 of 2019
With
Criminal Application No.3423 of 2019
Sandip s/o Kailasappa Lakade. .. Applicant.
Versus
The State of Maharashtra
And Another. .. Respondents.
----
Shri. R.F. Totla, Advocate, for applicant.
Shri. R.D. Sanap, Additional Public Prosecutor, for
respondent No.1.
----
With
Criminal Application No.3195 of 2019
With
Criminal Application No.3422 of 2019
Sandip s/o Kailasappa Lakade. .. Applicant.
Versus
The State of Maharashtra
And Another. .. Respondents.
----
Shri. R.F. Totla, Advocate, for applicant.
Shri. R.D. Sanap, Additional Public Prosecutor, for
respondent No.1.
----
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2 Applications 3194-3195/2019
Coram: T.V. NALAWADE &
R.G. AVACHAT, JJ.
Date: 9th OCTOBER 2019
ORDER:
1) The first proceeding is filed for the relief of quashing of Crime No.161 of 2019 registered with Ghansavangi Police Station for offences punishable under sections 328,188,272,273 of the Indian Penal Code and section 59 of the Food Safety and Standards Act 2006. The second proceeding is filed for similar relief but in respect of crime registered with Purna Police Station District Parbhani at CR No.181/2019. In that case there is also offence punishable under section 120-B of the Indian Penal Code. There are more sections of Food Safety and Standards Act 2006 like sections 26,27,30 etc. The other two applications are filed for making order to refer the matters to larger bench. Heard learned counsel for the applicant and the learned Additional Public Prosecutor for admission purpose.
2) The submissions made and the record show that applicant Sandip Lakade is involved in offence of storage and distribution of Gutka in districts like Jalna and ::: Uploaded on - 11/10/2019 ::: Downloaded on - 11/10/2019 23:02:03 ::: 3 Applications 3194-3195/2019 Parbhani. In Jalna District, at Police Station Ghansavangi crime is registered and in Parbhani District offences are registered in Bori Police Station (two in number), Purna Police Station, Jintur Police Station (two in number), Nanalpeth Police Station and Malakoli Police Station. Thus as many as 8 crimes are registered against him and these crimes came to be registered from the years 2013 to 2019. In the year 2019 as many as six crimes came to be registered against him. Copy of the order dated 16-8-2019 made by this Court in Anticipatory Bail Application No.991/2019 filed for relief of anticipatory bail in Crime No.161/2019 is produced on record. The order shows that the Court refused to grant relief of anticipatory bail. It was submitted that though the order came to be passed on 16-8-2019 the applicant did not surrender before police and he is absconding. Present proceedings for relief of quashing of the First Information Reports came to be filed on 19-9-2019 and it can be said that due to rejection of relief of anticipatory bail present proceedings came to be filed. The learned counsel for the applicant was insisting for grant of interim relief and this Court asked to make out case for admission purpose.
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4 Applications 3194-3195/2019
3) The learned Additional Public Prosecutor has made available the record of the investigation which includes copies of the F.I.R. Copy of F.I.R. of Crime No. 161/2019 registered with Ghansavangi Police Station is on record and its contents are being quoted as an illustration to show the activities of the applicant. Raid was effected by police on the basis of specific information that present applicant along with one Feroz Bagwan were involved in storage of Gutka which is prohibited item in Maharashtra. During the search of the place, police found that hundreds of pouches were there and value of the pouches was around Rs.4.61 lakh. Samples came to be collected and they came to be sent to C.A. office. In other crimes also Gutka worth many lakhs of rupees came to be recovered like Rs.7 lakh, Rs.10 lakh.
4) The pouches had description that they contain Gutka and the pouches do not contain any other material. It is not disputed that manufacture, possession etc. of Gutka is prohibited in Maharashtra. Learned counsel for the applicant-accused submitted that recently in Criminal Writ Petition No.3607/2019 (Anand Ramdhani Chaurasia v. ::: Uploaded on - 11/10/2019 ::: Downloaded on - 11/10/2019 23:02:03 :::
5 Applications 3194-3195/2019 The State of Maharashtra & Others) this Court at the Principal Seat held that provisions of sections 328, 188 of the Indian Penal Code cannot be used in such cases. He submitted that in view of the said decision dated 13-9- 2019 the crimes need to be quashed at least for those offences. He alternatively submitted that as there is such decision, if this Court is of different view the matter needs to be referred to larger bench.
5) It is not disputed that at this Seat this Court had occasion to consider the action taken by the authority against persons found in possession of Gutka both on civil side and criminal side. On civil side this Court had decided that the State has such authority and copy of that decision viz Writ Petition No.3398 of 2011 (Sanket Foods Products Pvt. Ltd. v. Union of India & Others) decided with other many matters on 23-11-2011 is produced. Then there are copies of the decisions given by the Court either by learned Single Judge or by Division Bench. In Criminal Writ petition No.830/2016 (Umraosingh Julalsingh Patil v. The State of Maharashtra & Others) decided on 10-1-2017 by a learned Single Judge this Court had held that in such ::: Uploaded on - 11/10/2019 ::: Downloaded on - 11/10/2019 23:02:03 ::: 6 Applications 3194-3195/2019 case provision of section 328 of the Indian Penal Code can be used. Criminal Application No.4353/2016 (Vasim Jamil Shaikh v. The State of Maharashtra & Another) was decided by a Division Bench on 29-11-2018 in which there was similar challenge. Such matters are now matters of Division Bench as per procedure of this Court. It was submitted in those cases that offences punishable under sections 272, 273, 328 of the Indian Penal Code cannot be inferred. This Court referred the decision given by the Hon'ble Apex Court in Criminal Application No. 1195/2018 (The State of Maharashtra & Others v. Sayyed Hasan & Others decided on 20-9-2018) and the previous decisions given by this Court like decision given in Sanket Foods Products Pvt. Ltd. already quoted and held that no relief of quashing of the F.I.R. or the proceeding can be granted. In view of the law laid down in this regard prior to the decision of Anand Chaurasia's case (date of decision 13-9- 2019) this Court holds that the provisions of the Indian Penal Code can be used in such case including the provision of section 328 of the Indian Penal Code. Learned counsel for the applicant submitted that the decision given by this Court was considered by the Court ::: Uploaded on - 11/10/2019 ::: Downloaded on - 11/10/2019 23:02:03 ::: 7 Applications 3194-3195/2019 at the Principal Seat in the case of Anand Chaurasia (cited supra) and after that, decision of aforesaid nature is given at the Principal Seat. He submitted that due to subsequent decision this Court cannot take a different view.
6) Learned counsel for the applicant has cited some cases on the point of ratio desi dendi also on the discipline which needs to be followed. He placed reliance on the observations made in the following cases.
(i) Aman Kumar v. State of Haryana (AIR 2004 SC 1497);
(ii) The State of Maharashtra v. Sayyed Hassan (AIR 2018 SC 5348);
(iii) Joseph Kurian Philip Jose v. State of Kerala (AIR 1995 SC 4);
(iv)Ganesh Pandurang Jadhao v. The State of Maharashtra (2016 Cri.L.J. 2401);
(v) Malkait Singh v. The State of Punjab ( (1969) 1 SCC 157;
(vi) Bir Bajrang Kumar v. State of Bihar (AIR 1987 SC 1345);
(vii) Sundarjas Kanyalal Bhathija v. Collector, Thane (AIR 1990 SC 261;
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8 Applications 3194-3195/2019
(viii) Vinayak Shamrao v. Moreshwar Ganesh Phade (AIR 1944 Nagpur 44);
(ix) Criminal Writ Petition No.3607/2019 (Anand Ramdhani Chaurasia v. The State of Maharashtra) decided on 13-9-2019.
7) In the case of Sundarjas Kanyalal Bhathija (cited supra) it is made clear by the Apex Court that a bench consisting of two members cannot overrule a decision given earlier in an identical case by a Division Bench. In such case, the subsequent Division Bench should move for constitution of a superior Bench if they disagree with the decision given by the previous Bench. On this point one more case of this Court can be cited. In P.I.L.No.20/2018 (Kumari Sheetal Shivkant Chavan v. The State of Maharashtra & Others) decided on 23-3-2018 this Court has considered many Apex Court cases on the discipline which needs to be there in such cases. This Court is avoiding to mention more about the matter of discipline as there is decision of a Division Bench of this Court first of the year 2018 and there were previous decisions on civil side also of this Court regarding power of the State and the offence for which person can be tried. Thus, from 2011 this Court has taken a view that ::: Uploaded on - 11/10/2019 ::: Downloaded on - 11/10/2019 23:02:03 ::: 9 Applications 3194-3195/2019 provisions of the Indian Penal Code can be used in such cases in addition to provision Food Safety & Standards Act.
8) This Court wants to stick to the previous view taken on the point involved. The applicant is not ready to submit himself to the process of law and even when relief of anticipatory bail is refused to him he has not surrendered before police. Various crimes committed by him are already quoted and he is history sheeter. In favour of such person this Court holds that no relief can be given by using powers given under section 482 of the Code of Criminal Procedure. In the result, all the applications stand rejected.
Sd/- Sd/-
(R.G. AVACHAT, J.) (T.V. NALAWADE, J.)
rsl
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