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2023 DIGILAW 1069 (JHR)

Asabbar Sk. @ Asabber Sk. v. State of Jharkhand

2023-08-24

PRADEEP KUMAR SRIVASTAVA

body2023
ORDER : Heard learned counsel for the parties. 2. Apprehending their arrest in connection with Pakur(M) P.S. Case No. 240 of 2022 instituted under Sections 379, 414 and 34 of the Indian Penal Code and Section 30(ii) of Coal Mines Act and Section 33 of Indian Forest Act, the petitioners have moved this Court for grant of privilege of anticipatory bail. 3. Both anticipatory bail applications are arising out of same FIR and taken together for hearing. 4. The FIR was lodged by Rajdeo Pandey, ASI, Pakur (M) P.S. alleging inter alia that on 28.09.2022 at about 9:50 p.m., the informant and other police patrolling party went to night patrolling and on 29.09.2022 at about 3:30 am, received secret information that a tractor loaded with coal was moving towards Kashila More Bir, Gopalpur going to West Bengal. For verification of information, the informant and other police personnels reached at the said place and saw a tractor was coming but the driver of the tractor seeing the police personnels, left the vehicle and fled away taking advantage of darkness. It is further alleged that the tractor bearing Chasis No.BWRSJ1144110S3, Engine No.3102NL24A1134652F33 (Sonalika DI-42RX Blue Color) loaded with 25 quintal coal was seized and seizure list was prepared and FIR was registered against the owner and driver of the seized tractor and trailer along with coal. 5. Learned counsel for the petitioners has submitted that the petitioner Asabbar Sk @ Asabber Sk is owner and petitioner-Najmi Sk. @ Najmi Shekh @ Najmi is driver of the seized vehicle. It is further submitted that petitioners are innocent and have committed no offence as alleged in the FIR. Petitioners have no concern with alleged seized coal and have no concern with such business. No incriminating articles have been recovered from the seized tractors and they have no criminal antecedents. Petitioners undertake to co-operate with the investigation of the case. Hence, the petitioners may be extended the privilege of anticipatory bail. 6. Petitioners have no concern with alleged seized coal and have no concern with such business. No incriminating articles have been recovered from the seized tractors and they have no criminal antecedents. Petitioners undertake to co-operate with the investigation of the case. Hence, the petitioners may be extended the privilege of anticipatory bail. 6. Learned Addl.P.P appearing for the State opposes the prayer for anticipatory bail of the petitioners and submits that in spite of protection from arrest extended by this Court and issuance of notice under Section 41(A) of Cr.PC, four times by the concerned Investigating Officer of this case since the month of January to August, 2023, petitioners are not appearing before the concerned Investigating Officer and have not co-operated with the investigation and during raid conducted by police in the aforesaid period at their house, they were found absconding and not available for interrogation. on several dates. There is requirement of custodial interrogation with the petitioners for thorough investigation of the case. The alleged vehicle is involved in this case without displaying registration number was purposely used in illegal business of coal and seized at the very odd time, while transporting 25 quintal coal. There is no reasonable explanation on behalf of the petitioner as to why they are not co-operating with the investigation and absconding from their house. Theft of coal and other minerals is rampant in the State causing huge revenue loss. Hence, petitioner may not be extended privilege of anticipatory bail. 7. For better appreciation provision of under Section 41(A) of Cr.PC is extracted as under:- [41-A. Notice of appearance before police officer- (1) [The police officer shall], in all cases where the arrest of a person is not required under the provisions of sub-section (1) of section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice. (2) where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice. (2) where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice. (3) where such person complied and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officers is of the opinion that he ought to be arrested. [(4) where such person, at any time, fails to comply with the terms of the notice4 or is unwilling to identify himself, the police officer may, subjected to such orders as may have been passed by a competent Court in this behalf, arrest him for the offence mentioned in the notice.] 8. It appears that there are sufficient prima facie materials showing involvement of present petitioners in illegal transportation of coal and profiteering through its sale causing irreparable loss to the Government Exchequer. It is quite astonishing that in spite of extending protection from arrest vide order dated 12.01.2023 with specific direction by this Court to join the investigation and co-operate the same, the petitioners did not turn up before the concerned Investigating Officer to co-operate in the investigation of the case in spite of receipt of notice on 19.01.2023, 04.02.2023, 22.05.2023 and 14.08.2023. They are absconding from their home at the time of police raid. None of notices were complied and even no response to the notices through registered post ever made. It clearly indicates that petitioners have no desire to co-operate in investigation of the case It further appears that the supplementary affidavit was filed by petitioners on direction of this Court showing the registration number of the vehicle, which was being plied without displaying registration number. Petitioner(owner) has filed supplementary affidavit showing the registration number of the seized tractor and also filed a notarised agreement of lease for one year with petitioner No.2(driver) which was never pleased and produced at the time of filing of original application showing any lease was executed in favour of the driver. It further appears that the petitioner-driver Najmi Sk. @ Najmi Shekh @ Najmi in A.B.A. No.10710 of 2022, has not admitted about execution of any lease entered into between the owner and driver through an agreement, rather he admits that he was acting on instruction of the owner of the vehicle. 9. It further appears that the petitioner-driver Najmi Sk. @ Najmi Shekh @ Najmi in A.B.A. No.10710 of 2022, has not admitted about execution of any lease entered into between the owner and driver through an agreement, rather he admits that he was acting on instruction of the owner of the vehicle. 9. Considering the facts and circumstances of this case, the nature of allegation against petitioners coupled with materials available on record, I am of the considered view that petitioners, who are willfully not co-operating in the investigation of the case in compliance of notice issued under Section 41(A) of Cr.P.C, in spite of grant of protection from arrest, are not entitled for anticipatory bail. 10. Accordingly, prayer for anticipatory bail of petitioners is hereby rejected. Interim protection from arrest of petitioners is also stands vacated.