1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL WRIT PETITION NO.94 OF 2008 Baburao s/o Baswantappa Bawachkar age 48 years, Occ. Agril/business, R/o Ahmedpur, Tq. Ahmedpur, Dist. Latur. Petitioner. V E R S U S 1. The State of Maharashtra (Copy to be served on APP High Court of Bombay Bench At Aurangabad.) 2. The Police Station, Ahmedpur, Through its Police Inspector. 3- The Additional Collector, Latur.. Respondents Mr. Jayant R. Patil, Advocate for the petitioner. Mr. S. D. Kaldate, Learned APP for respondents. CORAM : SHRIHARI P. DAVARE, J. DATE : 16 TH JUNE, 2010. ORAL JUDGMENT : 1. Present petition has been filed by the petitioner under Article 227 of Constitution of India and under section 482 of Code of Criminal Procedure, requesting that order dated 23.1.2008 passed by learned Judicial Magistrate (F.C.), Ahmedpur, Dist. Latur and order passed by Additional Collector, Latur dated 24.1.2008 be quashed and set aside and police 2 authorities be directed to hand over the possession of 135 empty barrels to the petitioner. 2. It is the contention of the petitioner that one Sundar Rambhau Bhandwale, Police Inspector of Gandhi Chowk Police Station, Latur on 14.12.2007 filed a complaint against the petitioner and co-accused Sambhaji Muley, under Section 3 and 7 of the Essential Commodities Act, 1955 (herein after referred to as “the Act”) with Ahmedpur Police Station and same was registered as Crime No.3075/2007. Accordingly, the police authorities conducted search of the godown of the petitioner and seized 135 empty barrels therefrom on 15.12.2007 and petitioner came to be arrested on 22.12.2007 under the aforesaid CR No.3057/2007 and was released on bail by the Court. Thereafter, the investigating agency completed investigation and filed charge sheet bearing charge sheet No.2/2008 in the Court of Judicial Magistrate First Class, Ahmedpur. 3. Thereafter, petitioner filed an application before learned Judicial Magistrate First Class, Ahmedpur on 14.1.2008 ( Exh ‘C’ collectively ) under section 457 of Code of Criminal Procedure requesting to release 135 empty barrels taken into custody by the police personnel, police station, Ahmedpur. Learned Judicial Magistrate First Class obtained say of the prosecution on 22.1.2008 and prosecution opposed the said application. Thereafter learned Judicial Magistrate First Class passed an order on 23.1.2008 (annexed at page 3 27 of paper book) and there by rejected the said application. 4. The learned counsel for the petitioner submits that meanwhile, District Supply Officer, Latur issued a show cause notice dated 27.12.2007 to the applicant and co-accused in respect of confiscation of blue colour kerosene of 2920 liters (Exh. E). Pursuant to said notice, the petitioner and co-accused filed their say on 9.1.2008 (Exh ‘F' collectively), stating that 135 empty barrels cannot be construed as an essential commodity, and therefore, same cannot be confiscated under section 6-A of the Act. However, it is the contention of the petitioner that Additional Collector, Latur passed impugned order dated 24.1.2008 (page 33) and thereby directed to confiscate 135 empty barrels with further direction to sell the same under the auction as per rules and regulations and to remit the sale proceeds to the Government and further direction that since petitioner and co-accused had no ownership over 2920 liters of kerosene, same be confiscated to the Government and directed the District Supply Officer, Latur to take further action in that respect as per rules and regulations. Being aggrieved and dissatisfied by the impugned order passed by Judicial Magistrate F,.C., on 23.1.2008 and Additional Collector, Latur on 24.1.2008, the petitioner has filed the present petition requesting for quashment thereof. 5. The respondents herein opposed the present petition vehemently and Shyamsundar Govindrao Vasurkar, Police Inspector, 4 Ahmedpur Police Station, District Latur sworn in the affidavit-in-reply and thereby denied the averments and contentions made in the present petition. The said affidavit-in-reply recites that during the course of the investigation, some secret information was received informing the complainant that petitioner has illegally kept empty barrels for the use of storage of blue kerosene in his godown near Ahmedpur City, and therefore, respondent raided the said godown near Ahmedpur City along with two panchas and during the said raid, 135 empty barrels, which were illegally used for storage of kerosene by the petitioner were seized under CR No.3075/2007 and same was informed to the District Supply Officer. It is also the contention of the respondents that the petitioner has not claimed 2920 liters of kerosene which was seized, but only claimed 135 empty barrels used for the purpose of storage of the said kerosene without any valid licence to possess and stock the kerosene. Accordingly, respondents submit that after seizure of 2920 liters of kerosene and 135 barrels, the respondents immediately reported the matter to Additional Collector, Latur for further proceedings i.e. confiscation as provided under section 6-A of the Act and thereafter District Supply Officer, Latur issued show cause notice to the petitioner under section 6B of Essential Commodities Act on 27.12.2007 and called upon the petitioner to give explanation why 2920 liters of kerosene not be confiscated to Government and after giving sufficient opportunity to the petitioner and after hearing the parties, the Additional Collector, Latur passed an order on 24.1.2008 which is impugned in the present petition. 5 6. In paragraph No.7 of the said affidavit-in-reply, respondent stated that on 24.1.2008, the Additional Collector, Latur has informed to the petitioner that 135 barrels which were seized by deponent are auctioned and auction amount is deposited in the Government Treasury, however, in paragraph No.8 of the said affidavit-in-reply the respondent stated that as per interim order passed by this Court in this writ petition, respondent has not auctioned 135 empty barrels. 7. In view of the said two contrary statements in paragraph No.7 and 8 of the affidavit-in-reply, directions were issued to the respondent to keep the deponent present before this Court to clarify the said position. Accordingly, Shyamsundar Govindrao Vasurkar P.I. Ahmedpur Police Station, District Latur remained present before this Court and on his instruction Mr. Kaldate, learned APP for the respondents made statement that 135 empty barrels have not been auctioned so far in view of interim order passed by this Court on 11.7.2008 and said statement is accepted and taken on record. 8. Heard learned respective counsel for the parties. 9. On perusal of the pleadings and considering the rival submissions advanced by the learned respective counsel for the parties, indisputably, in pursuance to the First Information Report, lodged under CR No.3075/2007 by Sunder Bhandwale, P.I. Gandhi Chowk Police Station, Latur 6 on 14.12.2007, investigation was carried out and same was completed and charge sheet was filed before learned Judicial Magistrate Ahmedpur, and said case was numbered as 33/2008 which is pending before learned Judicial Magistrate F.C. Ahmedpur and petitioner preferred an application before said Court under section 457 of the Code of Criminal Procedure requesting for issuance of directions to in-charge Ahmedpur Police Station to deliver 135 empty barrels to the present petitioner. It is seen from the contents of the said application (Exh C collectively), more particularly paragraph No.12 thereof that the petitioner has categorically stated that he is ready to furnish indemnity bond in order to produce above barrels before the Court whenever the Court requires it and also assured to give undertaking that he shall not sale, change its colour or dispose of said barrels during the pendency of the said case. However, said application came to be rejected by learned Judicial Magistrate F.C. on 23.1.2008 with observation that no documentary evidence is produced by the applicant about the ownership of the said 135 barrels and further observing that investigation was in progress. Now admittedly, investigation has been completed and charge sheet has been filed. However, as regards ownership of the said barrels, the petitioner has produced copy of the bill issued by Rahemaniya Scrap Merchant, Jamhoor High School, Railway Station Road, Udgir, Dist. Latur dated 1.2.2007 in respect of purchase of 135 barrels @ Rs.300/-, total amounting to Rs.40,500/- at Exh ‘D’, page 29. Hence, apparently it appears that petitioner is the owner of the said 135 barrels and therefore, there is no impediment of alleged ownership of the said 7 barrels also. 10. Besides that the show cause notice dated 27.12.2007 issued by District Supply Officer is silent regarding the proposed confiscation of 135 empty barrels. However, still the impugned order passed by Additional Collector dated 24.1.2008 spell out the direction regarding confiscation of 135 empty barrels and auction sale thereof, which direction is obviously without giving opportunity to the petitioner to show cause therefor. Hence the said first part/clause of the impugned order dated 24.1.2008 passed by Additional Collector, Latur deserves to be quashed. 11. It is also material to note that in paragraph No.11 of the application dated 14.1.2008 preferred by the petitioner before learned Judicial Magistrate F.C., it is further categorically stated by the petitioner that there is no place for keeping the said barrels in the police station and said barrels are likely to be damaged since exposed to sun, air and rains. It is apparent that said 135 barrels are lying in unused condition since the date of its seizure i.e. 15.12.2007 and exposed to sun, air and rains and there is every possibility of rusting and damaging too, and therefore, also to avoid deterioration of the said barrels, it is necessary to hand over the said 135 empty barrels to the petitioner during the pendency of the STCC No.33/2008 with direction to the petitioner to give necessary undertaking that he shall not sale and/or transfer the same and shall not change the colour thereof and shall produce the same 8 before the Court as and when required which would meet the ends of justice, quashing and setting aside the impugned order passed by learned Judicial Magistrate F.C. on 23.1.2008 and also quashing and setting aside the first part of impugned order passed by Additional Collector, Latur. 12. In the result, present petition succeeds and same is allowed quashing and setting aside the impugned order dated 23.1.2008 passed by learned Judicial Magistrate First Class, Ahmedpur and also quashing and setting aside the first clause/part of the operative order passed by Additional Collector, Latur on 24.1.2008 to the extent of confiscation of 135 barrels and auction sale thereof and deposit of sale proceeds thereof to the Government, with direction to the in charge of Ahmedpur Police Station to hand over 135 empty barrels to the petitioner, after obtaining necessary indemnity bond and undertaking from the petitioner stating therein that the petitioner shall not sale, transfer the said 135 barrels to third party and shall not change its form and colour and shall not cause any damage to the said barrels and shall produce the said 135 empty barrels before the Court as and when required during the pendency of STCC No.33/2008. 13. Rule is made absolute in the aforesaid terms. ( SHRIHARI P. DAVARE, J. ) aaa/94.08 ...