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2019 DIGILAW 366 (JK)

Ashok Kumar v. State of J&K

2019-08-02

TASHI RABSTAN

body2019
JUDGMENT : Tashi Rabstan, J. 1. The petitioner is alleged to have committed the offences punishable under sections 3/7 Essential Commodities Act and 406/407 of the Ranbir Penal Code. The offence under sections 406/407 is non-bailable. The petitioner was arrested on 28.06.2019 and since then he is in police custody. 2. Before dealing with the outcome of this petition, a brief advertence of the circumstances leading to filing of this petition is necessary. As per the prosecution story, the son of petitioner herein, who is also a co-accused in the case, is entrusted with the Government Ration Depot for supply of the same to the people of the area. On receiving information on 12.06.2019, the Assistant Superintendent of Police along with Executive Magistrate searched the private store and godown of petitioner herein and a total number of 542 sacks of flour were recovered, which included PDS flour mark sacks as well as some other filled sack of flour containing mark of some private Mills of Jammu. It is alleged that the Public Distribution Supply was being refilled in other sacks containing different marks of private Mills and then being sold in the market, thus depriving the target people of their due share of supply. So, it is alleged that the petitioner in cahoots with co-accused, who are his son and servant, had been misappropriating the Government Ration Supply. The godown as well as shop of petitioner is housed in a same building with interlinked doors. It is also alleged that electronic weighing machine and filling machine were also recovered from the godown. Accordingly, FIR No. 99/2019 was registered at Police Station Nowabad, Jammu, under Sections 406/407 of Ranbir Penal Code read with Section 3/7 of Essential Commodities Act and petitioner was arrested on 28.06.2019. He filed a bail application before the Additional Sessions Judge, Jammu on 02.07.2019, which came to be rejected on 10.07.2019. Hence, the present bail application. 3. Learned counsel appearing for petitioner has argued that the Go-down, where Government ration had been stored, did not belong to him and that petitioner was not selling Government ration from his private karyana shop, rather he has falsely been implicated in the matter. 4. Status report has been filed by respondent-State, averring therein that petitioner/accused has committed heinous offence and, therefore, does not deserve any concession. 4. Status report has been filed by respondent-State, averring therein that petitioner/accused has committed heinous offence and, therefore, does not deserve any concession. It is insisted that petitioner/accused had been purchasing flour by illegal modes from many Public Supply Distribution Centres and thereafter selling the same on market rates from his private shop. It is asserted that during investigation, a total 505 numbers of bags of PDS Atta and 78 bags of other suspicious Atta were recovered. 5. I have heard learned counsel appearing for the respective parties, considered their rival contentions and perused the file. 6. Before proceeding further, it would be relevant to reproduce relevant portion of the status report filed by respondent-State hereunder: "During the course of investigation, investigating officer along with Tehsildar Executive Magistrate, Jammu visited on spot, prepared site plan, conducted photography of place of occurrence through photographer Crime Branch, Jammu and seized below mentioned quantity of Wheat Flour (Atta): "1. PDS Atta bags of 50 KG:- 70 bags from ration store. 2. PDS Atta bags of 50 KG (printed Govt., of Punjab on the bags):- 48 bags from private Godown. 3. PDS Atta bags of 50 KG (Printed Flour Mill Bari Brahmana/Samba on the bags):- 346 bags from private Godown. 4. Atta bags of 50 KG (Printed New Flour Mill on the bags):- 48 bags from private Godown. 5. Atta bags of 50 KG (Printed Amar Flour Mill on the bags):- 30 bags from private shop. 6. PDS Atta bags of 50 KG (Printed Samba Flour Mill on the bags):- 41 bags loaded in vehicle No. JK02AC 7438". 7. From the above quoted passage of status-report filed by respondent State, it clearly transpires that only 30 Atta bags of 50 Kgs were recovered from private shop of petitioner/accused, but these bags were containing the mark of Amar Flour Mill and not PDS mark. Further, the police conducted the searches and seized the items on 12.06.2019. The investigating officer prepared the detailed investigation report on 12.07.2019, but, even after a lapse of one month, the investigating officer has failed to report as to whether 30 atta bags of 50 KG, recovered from the private karyana shop of petitioner/accused, were in fact the Public Distribution Supply which had been refilled in other bags containing the mark of Amar Flour Mill. It is also mentioned in the Status Report that the District Magistrate was requested for early disposal of seized atta, being the perishable item. Thus, once the seized atta is disposed of by the District Magistrate, then how come it would be revealed that 30 atta bags of 50 KG, recovered from the private karyana shop of petitioner/accused, were in fact the Public Distribution Supply. Status Report also reveals that Additional Director, Food Supply, Jammu, had issued 100 quintal atta during the month of June, 2019, for the Ration Depot existing in the name of Manish Gupta-ration dealer, son of petitioner herein, and the said atta/flour was to be disbursed to the actual ration card holders. Certainly 100 quintal atta/flour along with other items of Government ration cannot be stored in a single shop, for which a godown is required. Further, it is not the case of respondent-State that the actual ration card holders had made a complaint against the ration dealer, i.e., son of petitioner herein, for not supplying the Government ration meant for them nor it is the stand of investigating officer that the seized record revealed that the Government ration was not being supplied to the actual ration card holders. Once there was no complaint from the actual ration card holders nor the record seized so revealed, then how the question of misappropriation of Government ration arises. The only stand of respondent-State is that they conducted the searches on 12.06.2019 only after an information was received by the police. 8. Further, it is a fact that the petitioner herein is neither the license holder of Ration Depot-in-question nor dealer of any essential commodity, rather it is his specific stand that the Godown-in-question does not belong to him and he has only been running a private Karyana Shop for earning his livelihood. Therefore, in these circumstances, it was incumbent on the police to clearly indicate direct nexus between the petitioner/accused and the offence committed, which the police has certainly failed. 9. In the background of the case set up it would be relevant to say that personal liberty is a very precious fundamental right enshrined in Article 21 of the Constitution of India and deprivation of liberty is a matter of grave concern. It should be curtailed only when it becomes imperative to the peculiar facts and circumstances of the case. In the background of the case set up it would be relevant to say that personal liberty is a very precious fundamental right enshrined in Article 21 of the Constitution of India and deprivation of liberty is a matter of grave concern. It should be curtailed only when it becomes imperative to the peculiar facts and circumstances of the case. When a person is arrested on the allegations of commission of non-bailable offence, two conflicting interests are pitted against each other, that is, liberty of individual involved and interest of society so as to prevent crime and punish criminal. It becomes responsibility of the courts to weigh the contrary factors. The object of detaining a person in judicial custody is to direct him to join the investigation, secure his presence at trial, he may not interfere with investigation, intimidate witnesses, tamper with evidence, flee from justice, chances of repeating the offence etc., and if this purpose can be fulfilled by putting certain conditions and securing bail bonds, it would be an ideal blending of two apparently conflicting claims. 10. A fundamental postulate of Criminal Jurisprudence is the presumption of innocence, which means a person is believed to be innocent until found guilty. Another facet of our Criminal Jurisprudence is that grant of bail is the general rule and putting a person in jail is an exception (Bail but not the jail). Grant or denial of bail is entirely the discretion of a Judge considering a case, but such discretion should be exercised judiciously and not arbitrarily. 11. While examining the scope of grant of bail, the Supreme Court in a landmark decision rendered in the case of Sanjay Chandra v. Central Bureau of Investigation 2012 (2) JKJ 131 [SC], AIR 2012 SC 830 , has held that the object of bail is neither punitive nor preventive. Deprivation of liberty must be considered a punishment unless it is required to ensure that the accused will stand his trial when called upon. It was also observed that detention in custody pending completion of trial could be a great cause of hardship. While refusing the bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail of an un-convicted person for the purpose of giving him a taste of imprisonment as a lesson. 12. While refusing the bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail of an un-convicted person for the purpose of giving him a taste of imprisonment as a lesson. 12. The petitioner is in custody since 28.06.2019. The status report reveals that the police remand of petitioner has already expired, therefore, in such circumstances and in view of above discussion, in my view no fruitful purpose would be served to keep the petitioner in jail any more during trial. 13. While considering the overall factors for detaining a person pending trial, i.e. nature and gravity of offence, severity of punishment in the event of conviction, danger of accused absconding or fleeing if released on bail, likelihood of offence being repeated, reasonable apprehension of witnesses being tampered with and the nature of offence, I am of the considered view that the petitioner is entitled to be released on bail, of course, with certain terms and conditions. 14. Viewed thus, I deem it proper to allow the bail application. Accordingly, the same is allowed on the following conditions: i. The petitioner is ordered to be enlarged on bail on his furnishing bail bond to the tune of Rs. 20,000/-. (rupees twenty thousand only) with two sureties of the like amount to the satisfaction of Investigating Officer in connection with FIR No. 99/2019 registered at Police Station Nowabad, Jammu. ii. Petitioner shall appear before the Investigating Officer as and when required. iii. Petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer when called upon to do so nor allure the witnesses or temper with the prosecution evidence. iv. Petitioner shall not leave the territorial jurisdiction of this Court without prior permission of the Court during the period his presence is required for the purposes of investigation.