Criminal Application No.2 of 2017

21st March, 2017.

Petitioner Counsel: Mr. S.J. SALUNKE
Respondent Counsel: Mr. M.M. NERLIKAR

Cases Cited:
Prakash Babu Raghuvanshi Vs. State of M.P., 2004 ALL MR (Cri) 3473 (S.C.)=2004 AIR SCW 5334 [Para 4,7]
Rakesh S/o Mahendrakumar Jain Vs. The State of Maharashtra, 2014 ALL MR (Cri) 3144 [Para 4,7]
Dhanraj Anandrao Mohod and another Vs. State of Maharashtra and another, 2016 ALL MR (Cri) 2208=2016(2) Bom. C.R. (Cri.) 492 [Para 4,7]

JUDGMENT

S. S. SHINDE, J. :- Rule. Rule made returnable forthwith and heard finally with the consent of the learned counsel appearing for the parties.

2. By way of filing this application, the applicant has prayed to quash and set aside the first information report No.3031/2016, which is registered against him with Police Station, Ambad for the offence punishable under Sections 3 and 7 of the Essential Commodities Act.

3. The brief facts, leading to file the present Criminal Application, are as under :

(a) The informant is the Police Inspector attached with Police Station Ambad, Dist. Jalna. He received the information that, the commodities of public distribution system are getting transported for black marketing. Accordingly the police persons made necessary arrangements to seize the said commodities. Thereafter, they gave signal to stop the vehicle, which was driven by the applicant. Thereafter, they made necessary enquiry with the applicant and on enquiry, the applicant stated that, the commodities i.e. wheat and sugar which are in tempo, are of the fair price shop.

(b) The police seized the commodities worth of Rs. 33,500/with tempo. On information of respondent No.2, the crime came to be registered with Police Station, Ambad, Dist.Jalna, for the offence punishable under sections 3 and 7 of the Essential Commodities Act, 1955 (Hereinafter referred to as "the said Act").

(c) The applicant is not running any fair price shop. Even none of his family member is licensee of any fair price shop. The alleged tempo is belonging to one Durgadas Devidas Dharphal, R/o Ganpati Galli, Ambad. The applicant is the driver and running the tempo as per directions of his employer. He was neither aware about the nature of food grains nor involved himself in black marketing and as per say of his employer, he carried the food grains to Ambad.

4. The learned counsel appearing for the applicant submitted that, in the First Information Report there is no reference whatsoever made about breach of any order, that has been made under section 3 of the Essential Commodities Act, 1955. It is submitted that unless there is breach of any order that has been made under section 3 of the said Act, there would be no question of any violation of such order to result in an offence being committed under section 7 of the said Act. Learned counsel submits that a specific ground has been raised by the applicant in the present application that as no order has been made under section 3 of the said Act, therefore, there was no question of its violation. The learned counsel appearing for the applicant placed reliance on the exposition of law by the Supreme Court in the case of Prakash Babu Raghuvanshi V/s State of M.P., 2004 AIR SCW 5334 : [2004 ALL MR (Cri) 3473 (S.C.)], the Division Bench of Bombay High Court bench at Nagpur in the case of Rakesh S/o Mahendrakumar Jain V/s The State of Maharashtra, 2014 ALL MR (Cri) 3144 and in the case of Dhanraj Anandrao Mohod and another V/s State of Maharashtra and another, 2016(2) Bom. C.R. (Cri.) 492 : [2016 ALL MR (Cri) 2208].

5. The learned Additional Public Prosecutor appearing for respondent/State, on the other hand, submitted that as a prima facie case had been made out against the applicant, the offence under section 3 of the said Act read with section 7 thereof has been registered, therefore, he submits that, the application for quashing F.I.R. may not be entertained.

6. Upon hearing the learned counsel appearing for the parties and on perusal of the averments in the application, annexures thereto and original record, we are of the opinion that, the application deserves to be allowed for reasons stated hereinbelow.

7. Admittedly, in this case, there is no mention of contravention of any order made under section 3 of the said Act, and therefore, in absence of any order made under section 3 of which the contravention is claimed, the offence under section 7 could not be made out. The Supreme Court in the case of Prakash Babu Raghuvanshi [2004 ALL MR (Cri) 3473 (S.C.)] (supra) has taken a view that for attracting the provisions of offence punishable under section 7 of the said Act, the order under section 3 of the said Act is essential. The Division Bench of the Bombay High Court at Nagpur in cases of Rakesh Mahendrakumar Jain (supra) and Dhanraj Anandrao Mohod [2016 ALL MR (Cri) 2208] (supra) has also taken a view that, for bringing an application under section 7 of the said Act, it is necessary to make reference in the first information report to any order having been made under section 3 of the said Act being violated. In absence of it being shown that there was any order made under section 3 that had been contravened, proceedings for the offence punishable under section 7 would not be tenable and continuation of such proceedings, therefore, would amount to abuse of process of law.

8. As already observed, in the facts of the present case also, there is no reference whatsoever in the first information report to any order having made under section 3 of the said Act being violated and therefore, the proceedings for offence punishable under section 7 would not be tenable. Therefore, the continuation of the proceedings based upon the said first information report would amount to abuse of process of law. In the circumstances, the application deserves to be allowed. Hence we pass the following order:

ORDER

(i) The Application is allowed in terms of prayer clause 'B' and the same stands disposed of accordingly.

(ii) Rule made absolute in above terms.

Application allowed.