1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.1761 OF 2010 Kamlakar Govindrao Nikam, Age-39 years, Occu-Business, R/o.Nagral (Gunjoti), Tq.Omerga, Dist. Osmanabad PETITIONER VERSUS The State of Maharashtra, High Court of Judicature, Bombay, at Aurangabad. RESPONDENT Mr.N.V.Gaware, learned counsel for petitioner. Mr.B.V.Wagh, learned AGP for respondent State (CORAM : A.V.POTDAR, J.) DATE : 06/05/2010 PER COURT : 1. By the present application, the applicant has approached this Court for his release in connection with CR No.184/2009, registered in Omerga Police Station, Dist. Osmanabad, for the alleged offence punishable u/s. 409, 420,467, 468, 471, 34 of IPC, and u/s. 3, 7 of The Essential Commodities Act. 2. This is the second round of litigation, as the applicant has earlier approached this Court for anticipatory bail alongwith some 2 other applicants, which application was rejected by this Court, hence the applicant and others have approached the Apex Court wherein, their application was rejected with a direction to surrender before the Trial Court and then the Trial Court to decide their application as expeditiously as possible. In view of these directions, it appears that the applicant herein has surrendered before the learned J.M.F.C. Omerga on 08/02/2010, but was shown as arrested and taken in custody on 12/02/2010. In this case, after completion of investigation, charge sheet was filed on 16/04/2010. 3. It is not under dispute that the applicant is the fair price shop owner and running the said shop at village Nagral, Tal.Omerga, Dist. Osmanabad. He is one of the accused in connection with CR No. 184/2009, registered in Omerga Police Station of Dist. Osmanabad, which offence was registered in connection with racket of black- marketing of food grains stored in the Government Godown was bursted. During the inquiry, statements of the concerned public servant attached to the office of Revenue Department, certain fair price shop owners, the Chairman and the employees working in Vividh Karyakari Societies, to whom the food grains were allotted for distribution to the card holders under above poverty line as well as below poverty line were recorded. 4. It is not disputed that the relevant record was seized from the shop of the present applicant, who is running the fair price shop as well as the statement of the card holders were also recorded during 3 the course of investigation. At this juncture, it is not necessary to to into the investigation of the matter, whether in reality those card holders have received the food-grains as stated by them in their statement before police during the course of investigation or not. 5. It is urged across the bar that as now the investigation is over and charge sheet is filed in the Court of J.M.F.C.Omerga on 16/04/2010, and the case is registered as RCC No.38/2010, and as the case is based on documents and all the relevant record is seized from the custody of this applicant and at present all the documents are with Investigation Officer, their custodial interrogation is not necessary. Considering the allegations against this applicant about scrolling as well as inter-pollution in the record maintained by him, those documents are in the custody of Investigation Officer. The statement of the card holders were recorded. Whether these card holders have received the commodity as shown in the record or not i.e. to be tested at the time of trial on the basis of documents collected and seized from the custody of the applicant. In the premise, considering the nature of allegations against him, the offence for which he is prosecuted, are not punishable with life imprisonment or death. In the premise, it is urged, not to detain the applicant behind bars for uncertain period, but to release him on bail on certain conditions, which he is ready to abide. 7. While opposing the bail application, it is urged across the bar by learned APP appearing for the State that considering the gravity of 4 offence and even though, the seized record is in the custody of Investigation Officer, possibility can not be rulled out that if the applicant was released on bail, he may tamper the evidence of prosecution and again indulge in the similar offences, hence prayed to reject the application. 8. Considering these rival submissions across the bar, one fact is clear that considering the allegations against this applicant and even if the license was issued in his favour, on the strength of which,he is running the fair price shop, in law this license can not be continued, but i.e. the prerogative of the District Supply Officer that considering the nature of allegations against the applicant, whether to continue the license or not, but inspite of these type of allegations, the license is continued. It is to be read in between the lines, but there are no chances of similar type of indulgence at the hands of this applicant. The second aspect is about tampering of evidence. Considering the nature of allegations against applicant, the entire case of the prosecution is based on the documents which are in the custody of Investigation Officer, to which there is no access to the applicant. If there is access to the applicant to the documents in the custody of Investigation Officer, again it is a question about the integrity of Investigation officer, for which at least at this stage, it is not proper on the part of this Court to criticize and comment a single word. Last thing is about availability of the applicant to face the trial. Considering the fact that the applicant has roots in the society and even if released on bail, there are no chances that he will not face the 5 trial. In the premise, case is made out to enlarge the applicant on bail, but on certain stringent conditions. In the premise, following is the order : O R D E R 1. Application is allowed. 2. The applicant be released on bail, on furnishing solvent surety in the sum of Rs.25,000/- and on executing PR bond in the like amount. 3. After released on bail, the applicant not to contact with the prosecution witnesses. In case, if it is noticed by the Investigation Officer, he can apply u/s. 439(2) of The Cr.P.C. for cancellation of bail. 4. The applicant not to leave the local jurisdiction of Omerga Police Station without previous permission in writing from J.M.F.C.Omerga or the concerned Investigation Officer. 5. Application stands disposed of accordingly. (A.V.POTDAR) JUDGE khs/MAY 2010/cri.appl.1761-10