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2018 DIGILAW 1144 (GAU)

Gopal Saikia v. State of Assam

2018-08-06

HITESH KUMAR SARMA

body2018
JUDGMENT : Hitesh Kumar Sarma, J. This is an application, filed under Section 482 of the Cr.PC, seeking quashment of the GR Case No. 835/2010, and the order, dated 27.3.2012, passed by the learned Sub-Divisional Judicial Magistrate (S), Sonitpur, Tezpur, in the said case, framing charge against the accused-petitioner under Section 420 of the IPC. 2. I have heard Mr. K. Agarwal, learned senior counsel for the accused-petitioner, and Mr. B. Sarma, learned Additional Public Prosecutor, Assam, representing the State respondent. No. 3. I have also perused the petition as well as the annexures furnished therewith including the additional affidavit submitted by the petitioner. 4. The fact of the case is that the Additional Deputy Commissioner, Sonitpur, Tezpur, lodged an FIR with the Tezpur Police Station to the effect that the present accusedpetitioner/proprietor of the M/s Saikia Associates, was selling spurious Star Cement and to the effect a complaint lodged by one Samiran Gogoi was received by him. Accordingly, the allegedly spurious cement was freezed and examined through Quality Control Officer. The test report reveals that the cement bags contained 45 kgs each, which is not in accordance with the BIS specification. The seizure report as well as the Quality Control Officer Report have been furnished with the FIR. 5. On receipt of the FIR, Tezpur Police Station registered a case being Tezpur PS Case No. 426/2010, and after completion of investigation, charge-sheet was filed on 12.2.2011. The case was registered under and then charge-sheeted under Section 420 of the IPC. 6. On appearance of the accused-petitioner, after exhausting all required formalities, the learned Sub-Divisional Judicial Magistrate (S), Sonitpur, Tezpur, framed a formal charge against the accused-petitioner, under Section 420 of the IPC. Therefore, this present petition is filed for quashing the entire proceedings of the aforesaid GR Case as well as the order, dated 27.3.2010, framing charge against him. 7. On perusal of the materials on record, it is found that although in the complaint itself it has been stated that the accused-petitioner is the proprietor of M/s Saikia Associates, wherefrom the allegedly spurious cement was freezed, yet the submission made by the learned senior counsel for the accused-petitioner to the effect the accused-petitioner is not the owner of the firm, from where the allegedly spurious cement was freezed. It appears from the Annexure-2, at page-25, that the allegedly spurious cement surveyed and searched in the godown of M/s Associates Steel & Cement, and found stock of cement there, out of which 93 bags of Star Cement were freezed. Referring to the said annexure, learned senior counsel for the accused-petitioner has submitted that surveying and searching of the godown, where 93 bags of Star Cement were found, is not the same place and same firm with that of M/s Saikia Associates. Such submission of the learned senior counsel for the accused-petitioner appears to be based on materials on record indicated above, and therefore, bound to be relied upon. Further submission made by the learned senior counsel for the accused-petitioner is that whether the cement allegedly freezed was spurious or not to be decided on the basis of the report of the Quality Control Officer. 8. However the Annexure-3, at page-27, forwarding report of the Quality Control Officer, makes it clearly appear that although the report contains the weight and setting time etc, the chemical analysis thereof could not be done due to non-availability of facility in the laboratory. Therefore, the admitted position is that whether the cement in respect of which the allegation is made is spurious or not, does not appear to have been based on actual facts as the said cement could not have been said to be spurious without there being the chemical examination report to that effect. This submission made by the learned senior counsel for the accused-petitioner also found to be based on documentary evidence on record, as indicated above. 9. That being so, the principal allegation of adultaring the cement involved in this case could not be, prima-facie, established against the accused-petitioner, and therefore, there is no reason to proceed with the case as it is most unlikely to result in conviction of the accused-petitioner and would be the abuse of the process of the court. It will not be out of place to mention here that there is no offence under Section 420 of the IPC alleged and found to, prima-facie, establish on the basis of the documents placed with the record. 10. That being so, proceeding of the aforesaid GR Case, being the abuse of the process of the court, is quashed. 11. The stay order passed in this case, stands vacated. 12. 10. That being so, proceeding of the aforesaid GR Case, being the abuse of the process of the court, is quashed. 11. The stay order passed in this case, stands vacated. 12. Send down the LCR along with a copy of this judgment.