Pandurang Sagun Salgaonkar v. State — 1998 DIGILAW 254 (BOM)

ORDER :- This revision application by original accused No. 9 is directed against the order dated 24th July 1996 passed by the Special Judge, Panaji, in Special Criminal Case No. 1/92. The learned Judge directed framing of charges against the accused, including accused No. 9 as he found that there was sufficient material for doing so. Accordingly, he framed charges against the accused. Accused No. 9 was charged for the offences punishable under S. 120-B, 408 read with S. 120-B of the Indian Penal Code and under S. 3 read with S. 7 of the Essential Commodities Act, 1955 read with S. 120-B of the Indian Penal Code. Feeling aggrieved thereby accused No. 9 has preferred this revision application. 2. The relevant facts giving rise to the prosecution in question may be stated in brief as fol-lows :- The Food Corporation of India has its godown at Sada. The Civil Supplies Department collects food grains from the said godown and transports and stores the same in its various godowns at Taluka places including the one at Mapusa. The work of transporting food grains from the godown from F.C.I. is done by engaging a contractor. Accused No. 10 was the transport contractor engaged by the said Department at the relevant time. Accused No. 9 was at the relevant time working as godown keeper of Mapusa. According to the prosecution the food grains brought and stored in the various godowns of the Civil Supplies Department are meant for distribution to the consumers through Fair Price Shops. On 13th January 1992, 200 bags of wheat were loaded in two trucks bearing No. GDS4966 and GDS 4669 for being carried to and stored in the godown at Mapusa. Accused No. 1 is the owner of both the trucks while accused Nos. 2, 3 and 4 are the drivers of the said trucks. It is alleged that accused No. 10 instead of carrying the said wheat bags to the godown at Mapusa, tried to carry the same to Belgaum without any valid permit for such transport. Both the trucks were intercepted on 14th January 1992 by the P.S.I. of the CID Crime Branch, Panaji. On inquiry with the occupants of the said trucks, he found that they did not have any valid permits for transport of the wheat bags out of the area of Goa. Both the trucks were intercepted on 14th January 1992 by the P.S.I. of the CID Crime Branch, Panaji. On inquiry with the occupants of the said trucks, he found that they did not have any valid permits for transport of the wheat bags out of the area of Goa. He, therefore, detained both the trucks and seized all the 200 wheat bags loaded therein. Accused Nos. 1 to 4, who were present in the said trucks were arrested and a complaint was lodged against them on the charge of making an attempt to transport the said bags illegally out of Goa without valid permit of transport. Further investigation revealed that the illegal transport of the wheat bags was done with the connivance and assistance of accused Nos. 6 to 9, who are the employees of the Civil Supplies Department. It was also revealed that these four accused had issued permits to accused No. 5, who is an owner of a Fair Price Shop, in excess of his due quota. After due investigation a charge-sheet came to be filed against 11 accused. It is necessary to point out that although accused Nos. 6 to 9 happen to be the public servants, no sanction as required by S. 15-A of the Essential Commodities Act as well as S. 197 of the Criminal Procedure Code was obtained. The same was obtained on 17th August 1994, that is, after the accused had appeared before the Court pursuant to the summonses issued to them. 3. Before framing charge, the learned Special Judge heard both the sides. After considering the submissions made by both the sides and after perusing the police papers, the learned Judge came to the conclusion that there was sufficient material to frame charges against the accused. In the present revision application I am concerned only with regard to the case against accused No. 9. The learned Judge having found that there was sufficient material even against the accused No. 9, charged him along with other accused for having committed the offences mentioned above. It is this order which is challenged in this revision application. 4. I have heard Shri Kantak, the learned advocate for the revision applicant and Shri A. P. Lawande, the learned Public Prosecutor for the State. With the help of both the learned advocates I have gone through the police papers. Shri Kantak made two submissions before me. It is this order which is challenged in this revision application. 4. I have heard Shri Kantak, the learned advocate for the revision applicant and Shri A. P. Lawande, the learned Public Prosecutor for the State. With the help of both the learned advocates I have gone through the police papers. Shri Kantak made two submissions before me. The first is that the learned Judge was in error in holding that there was sufficient material available against accused No. 9 to frame charge. The second submission is that in the absence of any sanction, the learned Judge ought not to have taken any cognizance of the alleged offences against accused No. 9. Shri Lawande, on the other hand, tried to repel both the submissions by contending that the complicity of the accused No. 9 is evident from the police papers. As regards the want of sanction, Shri Lawande pointed out that the same has been obtained before the charge was framed. In any event, according to Shri Lawande, accused No. 9 is not entitled to discharge on the count of want of sanction. 5. Section 12-A of the Essential Commodities Act as amended by the Essential Commodities (Special Provisions) Act, 1981 empowers the State Government to constitute Special Courts for the purpose of providiong speedy trials for the offences under the said Act. Section 12-AA deals with the offences triable by the Special Courts. Clause (f) of Section 12-AA states that all offences under the Act shall be tried in a summary way. Sub-section (2) enables the Special Court to try an offence other than an offence under the Act with which the accused will be charged at the trial. Section 12-AC states about the application of the Criminal Procedure Code to proceedings before a Special Court and in substance it states that the provisions of the Criminal Procedure Code shall apply to the proceedings before the Special Court and for the purpose of the said provisions, the Special Court shall be deemed to be a Court of Sessions and the person conducting the prosecution before the Special Court shall be deemed to be a Public Prosecutor. My object in pointing out these relevant provisions under the Essential Commodities Act is only to show that the procedure laid down by Criminal Procedure Code for trial of Sessions Cases is applicable to the present case. My object in pointing out these relevant provisions under the Essential Commodities Act is only to show that the procedure laid down by Criminal Procedure Code for trial of Sessions Cases is applicable to the present case. Section 227, Criminal Procedure Code deals with the discharge of the accused in a sessions case and it states that if upon the consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing. Section 228 states as to when charge is to be framed against the accused in a Sessions Case. In substance it lays down that if after consideration and hearing as stated in Section 227, the Judge is of the opinion that there is ground of presuming that the accused has committed an offence which is exclusively triable under the said Section, he shall frame in writing a charge against the accused. In the instant case, the learned Special Judge has framed charge against the accused including accused No. 9 which obviously means that the learned Judge is of the opinion that there is ground for presuming that accused No. 9 also has committed the alleged offences. It is in the light of these provisions, the question whether the learned Special Judge was justified in framing the charge against accused No. 9 or whether he ought to have discharged accused No. 9, is required to be considered. 6. Shri Lawande, the learned Public Prosecutor, made a reference to the decision in Superintendent and Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja, AIR 1980 SC 52 : (1979 Cri LJ 1390) wherein it was observed that the standard test which is to be applied finally before finding the accused guilty or otherwise is not exactly to be applied at the stage of Section 227 or 223. It was further observed (at page 1393; of Cri LJ) :- "At this stage, even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged, may justify the framing of charges against the accused in respect of the commission of that offence." There can be no dispute about the proposition laid down by their Lordships. However, it cannot be ignored that it is not mere suspicion, but, a suspicion founded upon materials which may lead the Judge to form a presumptive opinion as to the commission of the alleged offence. Bearing this legal position in mind, it would now be proper to turn to the factual aspect of the case in order to ascertain whether the framing of the charge against accused No. 9 was legally warranted and justified. 7. It may be noted that the prosecution in question in connection with the attempt to illegally transport 200 bags of wheat from the area of Goa State to Belgaum and the incidental illegalities committed by the other accused. As already indicated 200 bags of wheat were lifted from the godown of F.C.I. at Sada for being carried and stored in the godown of the Civil Supplies Department at Mapusa for being distributed to the consumers through the channel of the Fair Price Shops. However, instead of being carried to the godown at Mapusa, the trucks containing the said 200 bags of wheat were diverted and attempted to be taken to Belgaum without any valid permit. 8. The person responsible for making transport of the wheat bags is obviously accused No. 10, who was at the relevant time engaged as transport contractor. The police papers include the statement about the rules of transportation and distribution to P.D.S. (Public Distribution Scheme) of rice and wheat. Clause 2 of the said statement requires the transport contractor to lift the rice and wheat allocated from the F.C.I. godown at Sada and to take the same to Taluka godowns. It further states that the time limit for such transportation is roughly a fortnight as mentioned in the office work order. Clause 11 states that the transporter is not bound by contract to inform the Department about the daily movement of loaded trucks from the F.C.I. godowns to the Taluka godowns. It further states that the time limit for such transportation is roughly a fortnight as mentioned in the office work order. Clause 11 states that the transporter is not bound by contract to inform the Department about the daily movement of loaded trucks from the F.C.I. godowns to the Taluka godowns. The actual movement of the trucks as programmed by the contractor is not monitored by the Department nor it is feasible to do so. Clause 7 of the said statement refers to the duty of the godown keeper and it states that once the godown keeper receives the transported quota of rice and wheat, he has to make an entry in his register and submit by post daily reports on arrivals and issue of foodgrains to the Head Office. It is further seen that on 2nd January 1992 the Deputy Director of Civil Supplies had issued a letter to accused No. 10 in connection with the storage programmed of rice and wheat for Jaunary 1992 in the North Zone. By the said letter he was directed to lift from the F.C.I. Depot at Sada specified quantity of rice and wheat for being transported and stored in the godown of the Civil Supplies Department. The letter shown that so far as the godown at Mapusa is concerned, accused No. 10 was directed to transport 400 metric tons of wheat and 500 metric tons of rice from the F.C.I. Deport at Sada and store the same in the godown at Mapusa. The letter directed him to ensure that the total quantity of rice and wheat earmarked for lifting and transportation to various godowns was lifted and transported positively on 20th January 1992. The letter also states that half of the quantity should be lifted on or before 15th January 1992. It will be thus seen that it was the duty of accused No. 10 as the transport contractor to take delivery of the bags of wheat and the requisite quota from the F.C.I. Depot at Sada and transport the same to the godown of Civil Supplies Department Mapusa. It is in accordance with the said direction that accused No. 10 appears to have taken delivery of 200 bags of wheat. He was supposed to carry the same to the godown of Civil Supplies Department at Mapusa and store the same there for public distribution through Fair Price Shops. It is in accordance with the said direction that accused No. 10 appears to have taken delivery of 200 bags of wheat. He was supposed to carry the same to the godown of Civil Supplies Department at Mapusa and store the same there for public distribution through Fair Price Shops. However, he acted mischievously and dishonestly inasmuch as he did not carry the said wheat bags to the godowns of Civil Supplies Department at Mapusa but illegally tried to transport them to Belgaum. So far as the charge of conspiracy under Section 120-B of Indian Penal Code is concerned, the allegation is that accused No. 9 along with other accused had agreed with each other to do or cause to be done an illegal act, namely, transport 200 bags of wheat meant for public distribution at Mapusa, outside Goa and in pursuance of the agreement to do "some acts". It is material to note that accused No. 9 who was at the relevant time the godown keeper at Mapusa did not receive the said 200 bags of wheat. As pointed out above the said 200 bags of wheat were directly diverted towards Belgaum after they were loaded in the two trucks from the F.C.I. Depot. Therefore, the question of accused No. 9 agreeing with the other accused, particularly accused No. 10, did not arise. The matter would have been different if accused No. 9 had made a false entry in the register of the godown showing receipt of 200 bags of wheat and allowed the truck drivers to carry the same elsewhere. The police papers do not show as to how and in what manner accused No. 9 could be said to have agreed with the alleged attempt of illegal transportation of wheat bags outside Goa. Since accused No. 9 did not receive in his custody or take charge of the said 200 bags of wheat, there was no entrustment as contemplated by Section 408 of the Indian Penal Code. In order to make out a case for the charge of criminal breach of trust, it is necessary first to show that the accused was entrusted with the property which is allaged to have been misappropriated. In the instant case, the facts stated above do not show that accused No. 9 was in any way entrusted with 200 bags of wheat. In the instant case, the facts stated above do not show that accused No. 9 was in any way entrusted with 200 bags of wheat. Therefore, it is not possible to form an opinion that there is a ground for presuming that accused No. 9 has committed criminal breach of trust by transporting the said 200 bags of wheat. It will thus be seen in the light of the facts stated above that it cannot be said that there is sufficient material against accused No. 9 for framing charge for the offences under Section 120-B, 408 read with Section 120-B and also under Section 3 read with Section 7 of the Essential Commodities Act read with Section 120-B of the Indian Penal Code. 9. Shri Lawande, the learned Public Prosecutor, submitted that accused No. 9 had joined hands with accused Nos. 6, 7 and 8 in issuing permit to accused No. 5 in excess of his admissible quota of wheat. It is, however, not known how this act is concerned with the alleged illegal transportation of 200 bags of wheat. Moreover the evidence collected by the police does not show that accused No. 9 was responsible or had anything to do with the issuance of permits. In this connection reference may be made to the statement of Narayan Bhaskar Narvekar, who at the relevant time, was working as Mamlatdar of Bardez Taluka. His statement shows that issue of permits is done by the Sub-Inspectors of Civil Supplies Department and that one Mr. Bhat and one Mr. Bandodkar were dealing with the issue of permits while accused No. 9 was only incharge of the godown at Mapusa. The question whether any excess permit was issued in favour of accused No. 5, who is the owner of a Fair Price Shop, does not appear to have any connection with the 200 bags of wheat which were attempted to be transported outside Goa. The submission made by Shri Lawande is, therefore, devoid of any substance. 10. Shri Lawande then pointed out that Road Pass Book which was supposed to be with the transport contractor was found in the custody of accused No. 9. In this respect he relied upon the concerned attachment panchanama. The submission made by Shri Lawande is, therefore, devoid of any substance. 10. Shri Lawande then pointed out that Road Pass Book which was supposed to be with the transport contractor was found in the custody of accused No. 9. In this respect he relied upon the concerned attachment panchanama. The said panchanama is to the effect that at the instance of accused No. 11 search of godown at Mapusa was taken and a road pass book in the name of accused No. 10 was recovered and seized. The police statement does not make it clear as to how and in what manner the said road pass book was concerned with the transport of 200 bags of wheat. It is not the prosecution case that accused No. 9 issued certain passes to accused No. 10 to enable him to transport the said wheat bags outside Goa. In the absence of any such evidence, reliance on the said panchanama will be of no consequent. 11. The learned Special Judge has not taken into consideration this position. He has ignored the fact that there is absolutely no material to connect accused No. 9 with the alleged illegal transport of 200 bags of wheat. Despite this position, he has observed, "I find that it cannot be said at this juncture that there is no material against accused No. 9." He has not pointed out any specific material against accused No. 9 which has a bearing with the alleged illegal transport of wheat bags. The material relied upon by him for the purpose of framing charge against accused No. 9 has no bearing or connection with the transport of the concerned bags of wheat. It is, therefore, not possible to agree with the learned Special Judge. Consequently the impugned order insofar as it relates to framing of charge against the accused No. 9 is concerned, is totally illegal, improper and incorrect and as such the same cannot be maintained. The result, is that the revision application will have to be allowed and the impugned order will have to be set aside by discharging accused No. 9. 12. Coming to the second submission of Shri Kantak, it is in connection with the sanction which is required under Section 15-A of the Essential Commodities Act and under Section 227 of the Criminal Procedure Code. It is not disputed before me that so far as accused Nos. 12. Coming to the second submission of Shri Kantak, it is in connection with the sanction which is required under Section 15-A of the Essential Commodities Act and under Section 227 of the Criminal Procedure Code. It is not disputed before me that so far as accused Nos. 6 to 9 are concerned, such a sanction is necessary before the Court takes cognizance of the offence in question against them. In the instant case, no such sanction was obtained when the charge sheet was filed on 24th March 1992. Admittedly the sanction was obtained on 17th August 1994, that is, much later after the accused had appeared before the Court in pursuance to the summones issued to them. Shri Kantak relied upon the decisions in Ram Kumar v. State of Haryana, reported in 1987 Cri LJ 703 : ( AIR 1987 SC 735 ) and Pritam Singh v. Delhi Administration, 1987 Cri LJ 872 and submitted before me that cognizance of the alleged offence against accused No. 9 in the absence of valid requisite sanction is illegal. Shri Lawande, the learned Public Prosecutor, on the other hand, contended that sanction was obtained before the charge was framed. He further submitted that want of sanction does not entitle the accused to discharge. The learned Judge has dealt with the question of want of sanction and pointed out that the prosecition has already obtained the sanction from the Government Authorities and the case is at the inception, that is, not even charge has been framed against the accused who had merely appeared before the Court. The impugned order was passed on 24th July 1996 and pursuant to the same charge came to be framed against the accused. I am further told that trial against the accused has not yet started. I have considered the submissions made by both the learned advocates on the question of sanction and I, however, feel that so far as accused No. 9 is concerned the finding will be only of academic interest. Since this revision application is being allowed, the question as to whether the sanction dated 17th August 1994 would be valid or not will be of no consequence. On the contrary, if I make any observations on the question of the validity or otherwise of the said sanction, the prosecution or accused Nos. Since this revision application is being allowed, the question as to whether the sanction dated 17th August 1994 would be valid or not will be of no consequence. On the contrary, if I make any observations on the question of the validity or otherwise of the said sanction, the prosecution or accused Nos. 6, 7 and 8 are likely to be prejudiced by the said observation as the trial is yet to begin. I, therefore, think it proper not to touch the said question and allow the same to be agitated before the learned Special Judge. 13. In the result, the revision application is allowed. The impugned order dated 24th July 1996 insofar as it relates to accused No. 9 is hereby quashed and set aside. Accused No. 9 is discharged. Revision allowed.