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2024 DIGILAW 654 (BOM)

State of Maharashtra v. Roshan Shirodkar @ Ghonya

2024-06-11

A.S.GADKARI, SHYAM C.CHANDAK

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JUDGMENT A.S. Gadkari, J. - The State has preferred present Appeal under Section 12 of the Maharashtra Control of Organized Crime Act, 1999 (for short, "MCOC Act") impugning Order dated 11th February 2021 passed below Exh.42 in MCOC Spl. Case No. 01/2019 @ 13/2019 @ 309/2020 to the extent of clause No. (2) of the operative part of the said Order, by which the learned Judge of the trial Court has discharged the Respondents from the offences punishable under Sections 3 read with 7 of The Essential Commodities Act, 1955 (for short, "E.C. Act") read with Clause - 3(4)(5)(6) and Clause-4 of Motor Spirit High Speed Diesel (Regulation of Supply, Distribution and Prevention of Malpractice) Order, 2005 (for short, "Diesel Order 2005"). By the same Order, the trial Court has directed that, the charge be framed against the Respondents under Sections 120-B, 285, 387, 506 read with 34 of Indian Penal Code (for short, "I.PC.") and under Sections 3(1)(ii), 3(2) and 3(4) of MCOC Act, on the next date. 2. Heard Mr. Mule, learned Special Public Prosecutor for Appellant, Ms. Vora, learned Advocate for Respondent Nos. 1 to 3, 5, 6 & 8 to 11 and Mr. Deshpande, learned Advocate for Respondent No.7. Despite service, none appears for Respondent No.4. Perused entire record. 3. Record indicates that, Mr. Hemraj G. Borse, Police Sub-Inspector, then attached to Yellow Gate Police Station, Mumbai had filed C.R. No. 20 of 2018 on 20th September 2018 under Sections 285 read with 34 of I.PC. and under Sections 3, 7(2) of E.C. Act. 3.1. The prosecution case in brief is that, when the informant and other police personnel were on patrolling duty on 18th September 2018 in the high seas, under their jurisdiction, they noticed a boat in the interior part of the sea. The said boat was having name 'Barkat' written on it. It was a fishing boat. No person was found manning the said boat. The patrolling party inspected the said boat and found that, no person is present therein. During inspection of the said boat, the police personnel found two cans of 35 liters each filled with diesel and in the engine room they noticed about 40 liters of diesel stored therein. 3.2 After conducting preliminary inquiry, the said crime bearing C.R. No. 20 of 2018, dated 20th September 2018 registered with Yellow Gate Police Station, Mumbai. 3.3. During inspection of the said boat, the police personnel found two cans of 35 liters each filled with diesel and in the engine room they noticed about 40 liters of diesel stored therein. 3.2 After conducting preliminary inquiry, the said crime bearing C.R. No. 20 of 2018, dated 20th September 2018 registered with Yellow Gate Police Station, Mumbai. 3.3. During the course of investigation, it was revealed that, the Organized Crime Syndicate headed by Mr. Rajkishor Gunnidhi Das @ Raju Pandit (Org. A. No.3) and the Respondents being its members are indulging into smuggling of diesel. It is their modus operandi that, said Syndicate used to purchase diesel for paltry/petty amount from the international or national large size barges and/or ships anchored in the high seas, which was reserved storage for it and used to sale it at higher price to fishermen/dealers/boats etc. by lobbing and by use of violence and/or threatening to the said persons for compelling them to purchase it at higher rate, to gain pecuniary benefits from it. The Chemical Analysis Report received from Central Forensic Science Laboratory, Kalina duly supported the case of the prosecution that, the chemical seized from the said boat 'Barkat' was infact diesel. To the said crime, after getting necessary prior approval the provisions of MCOC Act are applied. 3.4. After completion of investigation the Commissioner of Police, Brihanmumbai accorded sanction on 31st December 2018 under Section 23(2) of MCOC Act and thereafter Chargesheet under Sections 387, 506, 285, 120-B read with 34 of I.PC.; under Sections 3, 7(1)(a)(ii) of E.C. Act, Diesel Order, 2005 and under Sections 3(1)(ii), 3(2), 3(4) of MCOC Act and supplementary chargesheet is also filed. 3.5. Respondent No.1 (Org. A. No.9) thereafter filed an Application below Exh.42 under Section 227 of Criminal Procedure Code (for short, "Cr.PC.") seeking his discharge from the said case. 4. As noted earlier, the trial Court by its impugned Order dated 11th February 2021 has partly allowed the said application and has discharged the Respondents from the offences punishable under Sections 3 read with 7 of E.C. Act, read with Clause 3(4)(5)(6) and Clause-4 of Diesel Order 2005. 5. Mr. Mule, learned Special 1.1. submitted that, the trial Court has committed an error while discharging the Respondents from the provisions of the said Act. 5. Mr. Mule, learned Special 1.1. submitted that, the trial Court has committed an error while discharging the Respondents from the provisions of the said Act. He submitted that, the trial Court has not assigned any reason for discharging the Respondents from the said provisions of E.C. Act. That, though the trial Court has held that there is material to frame charge under the provisions of I.PC. and MCOC Act, has committed an error in discharging the Respondents from the provisions of E.C. Act. The trial Court has not recorded detailed reasoning while allowing the prayer of the Respondents from discharging them, under the provisions of E.C. Act. That, from a bare perusal of F.I.R., it can be seen that the ingredients of Section 3 of E.C. Act are very much stated in it. That, diesel and petrol are essential commodities and its use, supply and distribution is regulated by the Government and therefore the finding recorded by the trial Court that the F.I.R. does not disclose any existence of any specific Order is completely without application of judicious mind. That, the accused No.3 (Respondent No.4 herein) is the head of the Organized Crime Syndicate, who is indulging into smuggling of diesel, threatening small boat owners and/or its consumers to purchase diesel from the said Syndicate for their pecuniary benefit. He submitted that, the trial Court therefore has committed an error in discharging the Respondents from the application of provisions of E.C. Act. He submitted that, the prosecution may, if permitted would now produce on record the said Diesel Order 2005. That, it is the procedural lacuna and therefore it may be permitted to be cured with, at any stage. He therefore prayed that, the impugned Order to the extent of Clause No. (2) of operative part may be set aside by allowing the Appeal. 6. Per Contra, Ms. Vora, learned Advocate appearing for Respondent Nos.1 to 3, 5, 6 & 8 to 11 vehemently opposed the Appeal and submitted that, as a matter of fact the prosecution has not placed on record the said Diesel Order 2005 and in its absence, the provisions of E.C. Act cannot be applied to the present crime. 6. Per Contra, Ms. Vora, learned Advocate appearing for Respondent Nos.1 to 3, 5, 6 & 8 to 11 vehemently opposed the Appeal and submitted that, as a matter of fact the prosecution has not placed on record the said Diesel Order 2005 and in its absence, the provisions of E.C. Act cannot be applied to the present crime. She submitted that, permitting the prosecution now to produce on record the said Diesel Order 2005 would amount to wiping out from the record the earlier proceedings and exposes the accused to further trial, which affords the prosecution an opportunity to rectify the infirmities disclosed in earlier trial/proceedings and should not be ordinarily countenanced. That, the prosecution cannot be permitted to produce evidence at such a belated stage, as it is contrary to the mandate of law. In support of her contention she relied on a decision of the Hon'ble Supreme Court in the case of Ukha Kolhe Vs. The State of Maharashtra, reported in 1963(2) Cri.L.J. 418. She submitted that, the trial Court has not discharged the Respondents from the stringent provisions of MCOC Act and the Respondents are bound to face the said trial for the charges, which would be framed by the trial Court under the said provisions. She submitted that, there are no merits in the Appeal and it may be dismissed. 6.1. Mr. Deshpande, learned Advocate for Respondent No.7 adopted the arguments of learned Advocate Ms. Vora and further submitted that, the F.I.R. itself is silent about the fact of any such Diesel Order 2005 in existence, though it is made applicable to the present crime. He also joined the issue with the learned Advocate for other Respondents on the points of not annexing/supplying copy of the said Diesel Order 2005 along with chargesheet. He therefore prayed that, the Appeal may be dismissed. 7. Perusal of record clearly indicates that, the prosecution has not annexed and/or supplied copy of the said Diesel Order 2005 along with chargesheet to the accused persons. It is the most vital and important document for framing a charge under the provisions of E.C. Act. Whether there was restriction imposed by the Government in storage of the said quantity of diesel found on the boat 'Barkat' can only be ascertained from the said Diesel Order 2005. It is the most vital and important document for framing a charge under the provisions of E.C. Act. Whether there was restriction imposed by the Government in storage of the said quantity of diesel found on the boat 'Barkat' can only be ascertained from the said Diesel Order 2005. According to us, the prosecution has conveniently not annexed the said Diesel Order 2005 along with the chargesheet, as the diesel found on the said boat Barkat may be within the legally permissible limits of storage. 8. Section 173 of Cr.PC. specifies for Report of Police Officer on completion of investigation. Sub-section 1 states that, every investigation under this Chapter (i.e. Chapter XII) shall be completed without unnecessary delay. Sub-section 5 of Section 173 of Cr.PC. reads as under :- "When such report is in respect of a case to which section 170 applies, the police officer shall forward to the Magistrate along with the report - a. all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation; b. the statements recorded under section 161 of all the persons whom the prosecution proposes to examine as its witnesses. " 9. Section 207 of Cr.PC. mandates supply to the accused of copy of Police Report and other documents. It specifies the documents, which specifies about supply of Police Report and other documents to be furnished to the accused free of cost. 10. As noted earlier, the prosecution has not annexed/supplied along with chargesheet the Diesel Order 2005. At the stage of Section 207 of Cr.PC. also the prosecution did not take any efforts to rectify the said error or lacunae and therefore at this stage, it has become a legal infirmity and at such a belated stage, it now cannot be cured. At the time of consideration of the application filed by accused under Section 227 of Cr.PC. and precisely on the date of filing of the said application for discharge, there was no material on record to even remotely infer that, the diesel seized from the said boat 'Barkat' was infact a controlled commodity under the said Diesel Order 2005. 11. At the time of consideration of the application filed by accused under Section 227 of Cr.PC. and precisely on the date of filing of the said application for discharge, there was no material on record to even remotely infer that, the diesel seized from the said boat 'Barkat' was infact a controlled commodity under the said Diesel Order 2005. 11. After receipt of copy of Final Report along with necessary documents, on which the prosecution has placed reliance, certain rights have been accrued in favour of the accused and those rights at this stage cannot be impaired with or wiped out. The production of the said Order before the trial Court at such a belated stage would amount to wiping out the earlier proceedings and creating new prosecution case for the accused. 12. The trial Court in its impugned Order dated 11th February 2021 has rightly taken into consideration the necessary aspects of the case and has discharged the Respondents from the offences punishable under the provisions of E.C. Act read with Diesel Order 2005. 13. After perusing entire record, we are of the considered view that there are no merits in the Appeal and is accordingly dismissed.