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2015 DIGILAW 300 (BOM)

Chandansingh v. State of Maharashtra

2015-02-02

S.B.SHUKRE

body2015
JUDGMENT : S.B. Shukre, J. 1. Heard. Admit. 2. Heard finally by consent. 3. The facts giving rise to filing of the application are as under: "(i) On 5th September, 2012, Gadchandur Police raided house of one Abhay Munot and found eight commercial empty gas cylinders, four domestic empty gas cylinders, one filled domestic gas cylinder and six gas regulators in his house, for which possession, said Abhay Munot could not account for. At the time of raid. Gadchandur Police also noticed one vehicle parked near the house of said Abhay Munot and this vehicle was found to be loaded with forty four empty gas cylinders. Upon inquiry, it was revealed that the vehicle belonged to the present applicant and the present applicant used to store some cylinders in the house of said Abhay Munot with a view to distribute them at premium in the black market. The investigation disclosed that the present applicant was an authorized distributor for the gas cylinders of Bharat Petroleum Corporation Limited and Hindusthan Petroleum Corporation Limited and ran his agency under the name and style as, "Nootan Gas Agency". The investigation further disclosed that there was one more person, who was the other authorized gas distributor who also used to supply the cylinders to said Abhay Munot with a view to distribute them at high premium in the black market. Thus, it was found that the offence punishable under Section 7 read with Section 3 of the Essential Commodities Act, 1955 was committed in the matter and accordingly, crime was registered against the main accused, Abhay Munot. The driver of the vehicle which was loaded with forty four empty gas cylinders and which was found parked near the house of the main accused together with present applicant, the proprietor of Nootan Gas Agency and one more person, the proprietor of another Gas Agency were also roped in by the Police on the charge of abetment of commission of offence punishable under Section 7 read with Section 3 of the Essential Commodities Act. (ii) After completion of the investigation, charge sheet came to be filed against all afore stated four accused persons in the Court of Judicial Magistrate, First Class, Rajura, District Chandrapur. Said Abhay Munot is accused No. 1, while present applicant is accused No. 3. The driver of the vehicle, Shrawan Bobde, is accused No. 2. (ii) After completion of the investigation, charge sheet came to be filed against all afore stated four accused persons in the Court of Judicial Magistrate, First Class, Rajura, District Chandrapur. Said Abhay Munot is accused No. 1, while present applicant is accused No. 3. The driver of the vehicle, Shrawan Bobde, is accused No. 2. Present applicant filed an application under Section 239 of the Cr.P.C. for his discharge from the case on the ground that no order made under Section 3 of the Essential Commodities Act, 1955 has been produced on record by Gadchandur Police and as per the settled law, the present applicant could not be made an accused in such a case. The application, however, was rejected by the learned Magistrate by his order passed on 6.5.2014. The challenge made to it by the present applicant before the revisional Court was also dismissed by the revisional Court, the Court of Additional Sessions Judge, Chandrapur by it's order passed on 30th September, 2014." 4. Being aggrieved by the same, the applicant is before this Court in the present application filed under Section 482 of the Cr.P.C. 5. According to the learned counsel for the applicant, continuation of proceedings against the present applicant would be an abuse of process of law as in absence of order passed under Section 3 of the Essential Commodities Act, 1955 offence punishable under Section 7is not made out. According to the learned Additional Public Prosecutor for the State, although the charge sheet nowhere refers to contravention of any order passed under Section 3 of the said Act, there is sufficient material for proceeding further against the present applicant which can be seen from the order of the Additional Sessions Judge dated 30th September, 2014, which adequately deals with the same. 6. It is not in dispute that along with the charge sheet, the prosecution has not produced on record the order made by the competent authority under Section 3 of the Essential Commodities Act, 1955. The offence punishable under Section 7 is about contravention of any order made under Section 3 of the Essential Commodities act. In the instant case, neither the F.I.R. nor the charge sheet anywhere refers to any order made under Section 3of the said Act and its contravention having been committed by the present applicant. The offence punishable under Section 7 is about contravention of any order made under Section 3 of the Essential Commodities act. In the instant case, neither the F.I.R. nor the charge sheet anywhere refers to any order made under Section 3of the said Act and its contravention having been committed by the present applicant. In the case of Prakash Babu Raghuvanshi v. State of M.P., reported in 2004 ALL MR (Cri) 3473 (S.C.), it has been held by the Hon'ble Apex Court that for attracting Section 7 of the Act, contravention of any order made under Section 3 is essential. This law has been followed by the Division Bench of this Court in the case of Rakesh s/o. Mahendrakumar Jain v. The State of Maharashtra, reported in 2014 ALL MR (Cri) 3144. As no order made under Section 3 of the said Act has been produced on record nor is there any mention either in the F.I.R. or in the charge sheet about the contravention of a particular order passed under Section 3 of the said Act, it would have to be held that there is no sufficient ground for proceeding against the present applicant for the charge made against him. In such a situation, the present applicant would have to be discharged. This aspect of the matter has not at all been considered by the Courts below and, therefore, I am of the view that the orders impugned herein are against the settled provisions of law and as such cannot be sustained. 7. In the result, I find that the present applicant, who is accused No. 3 in Crime No. 3037/2012, registered by Police Station Gadchandur, deserves to be discharged from the case. 8. The application is allowed. 9. The present applicant is discharged from the case. The application is disposed of in these terms.