1 Cri.Appln.No.2102/2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.2102/2010. Vishwanath s/o Dagadu Hulle Age: 42 Yrs./ occu. Business, R/o Patoda, Tq. Patoda, District Beed. - APPLICANT VERSUS The State of Maharshtra. - RESPONDENTS ***** Mr.RN Dhorde, Advocate for Applicant; Mr.BJ Sonawane, APP for State. ----- CORAM : K.U.CHANDIWAL, J. DATE : 16th June, 2011. PER COURT : 1) Heard finally. Rule made returnable forthwith, by consent of parties. 2) The applicant has urged for quashing and setting aside FIR No.24/2010, registered at Talvada police station dated 21st March,2010, to his extent. 2 Cri.Appln.No.2102/2010 3) The prosecution case is, from the river bed, unauthorizedly and in night hours, sand was lifted. The trucks loaded with sand were apprehended. The truck drivers had receipts with them, commonly called as `Permit’, which was shown to the officer, who intercepted the trucks/vehicles. These trucks, laden with sand, belonged to the applicant herein, a contractor by profession and had a valid contract from Government, which also bound him to deposit requisite revenue, if he lifts the sand or other minerals belonging to the Government, to be deposited with the revenue department. 4) Several receipts, which are part of the present criminal application, which even have been tendered to the Investigator, demonstrate that the applicant herein purchased sand on most of the occasions from Shree Construction company at Beed, Tq. Georai, District Beed, claims to have a Government Permit being No. 2009/Gaukh/Walu/Shakravi/6/4, dated 24/12/2009. 5) During the course of investigation, the drivers of the vehicles were taken in custody, said, Rajendra Mhaske, owner of Shree Constructions, was also taken in custody. Further, specimen signatures/writings were obtained by the Investigator and were sent for 3 Cri.Appln.No.2102/2010 examination to the Experts. It is curious, learned APP could not show that such specimen signatures/writing of the accused were even taken. 6) There is nothing in the investigation papers to suggest that the accused/applicant, as a contractor, had any role in lifting of sand or preparing false, fabricated Government receipts. Even if the receipts are prepared and produced for lifting of sand, credit goes to said Mhaske or his team, but, it would seldom indicate involvement of the accused/applicant. He, even, remotely cannot be branded as a conspirator. 7) The learned APP, as a last feather, has said that alternate remedy is available to seek discharge and normally this is entertained. 8) But, in the peculiar facts of the present case, when the learned APP is unable to point out from the investigation papers, any direct or indirect role of the accused/applicant in commission of offence, in illegally lifting of sand or preparing forged receipts, his prosecution would amount to abuse and persecution. 9) In the set of above facts, FIR No. 4 Cri.Appln.No.2102/2010 24/2010, referred herein above, to the extent of the accused/applicant is set aside. It is clarified, if during evidence, accused/applicant is found involved, procedure in terms of Section 319 Cr.P.C. is not clipped of. 10) Rule made absolute in aforesaid terms. (K.U.CHANDIWAL) JUDGE bdv/