:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL WRIT PETITION NO.119 OF 2007 WRIT PETITION NO.119 OF 2007 WRIT PETITION NO.119 OF 2007 1. Roshan Trilokchand Gothi R/o 3 Samrat Apartment, Ashwin Sector, CIDCO, Nashik 2. Deoram Hari Avhad R/o At & Post- Paste, Tal. Sinnar, Dist. Nashik ..... Petitioners V/s 1. Kisan Walzade, Supply Inspector office of Tahsildar, Sinnar, Dist. Nashik. 2. The Inspector of Police, Sinnar Police Station. 3. The State of Maharashtra ...Respondents. Mr.M.S. Mohite for the Petitioners. Mr.P.S. Hingorani,APP for the respondents. CORAM CORAM CORAM : SRI R.M.S. KHANDEPARKAR AND : SRI R.M.S. KHANDEPARKAR AND : SRI R.M.S. KHANDEPARKAR AND SRI SRI SRI A.A. SAYED, JJ. A.A. SAYED, JJ. A.A. SAYED, JJ. DATE DATE DATE : 14TH FEBRUARY, 2008 : 14TH FEBRUARY, 2008 : 14TH FEBRUARY, 2008 ORAL JUDGMENT (PER R.M.S. KHANDEPARKAR J.) 1. On the last date of hearing, we had heard at length the Advocate for the petitioners as well as learned APP at length. In fact, as the learned APP wanted to submit further submissions the matter was adjourned to this date. However, the learned APP states that he has no further submissions to make in the matter. :2: 2. The present petitioners are seeking to quash CR.No. II-41/2004 registered at Sinnar Police Station, Nashik on various grounds. 3. The petitioners are the partners of the partnership firm namely M/s Shivambika Enterprises engaged in the business of distillation of Naptha and solvents used in the manufacture of petroleum products. The required licence for the purpose is obtained from the office of Collector, Nashik and they are duly registered with the State Sales Tax Department as well as Central Sales Tax Department and had been submitting their sales tax returns. They had also submitted the required End Use Certificate on a quarterly basis to the competent authority in relation of Naptha required by them. The said Naptha was being purchased by them from various dealers and importers and information in that regard was duly furnished to all the competent authorities. It is the case of the petitioners that in these circumstances, the FIR which has been registered under section 3 and 7 of the Essential Commodities Act is thoroughly unwarranted. :3: 4. It is the case of the petitioners that impugned FIR has been registered only because there were some instructions received by the complainant to lodge such FIR and without there being any offence committed by petitioners. It is their further case that the stock and supply register could not be produced for perusal of the Inspector, when he had visited the firm’s office because it was sent to the Chartered Accountant’s office for the purpose of preparation of Annual Returns. However, the copies thereof were immediately made available for the perusal of the concerned authorities. The petitioners had required necessary Naptha licence renewed from time to time. All the necessary copies of the documents including the End Use Certificates were duly furnished to the concerned authorities and the proof thereof was produced before the inspecting authorities as also in relation to other certificates. The petitioner company had been totally exempted from the payment of Sales Tax during the relevant period and there was no occasion for evading sales tax and the documents pertaining to that were also made available to the concerned :4: authorities. According to the petitioner, the impugned FIR and consequential investigation is clearly to cause unnecessary harassment to the petitioners. 5. The respondents on the other hand, in their affidavit in reply, have stated that on 3-5-2002 and 12.8.2002 the petitioners company had supplied the goods to certain companies out of Maharashtra State and the said fact is required to be investigated. It is also stated that the modes operandi in such type of crime is that though goods are transported from State of Maharashtra and they do not reach to the destination but the goods are removed somewhere along the highway. Since the companies or firms are situated out of Maharashtra State such as Kerala, Andhra Pradesh, Pandechery, Goa and Jamshedpur the team has been sent to verify whether those companies were existing during the relevant period from 3-5-2002 to 12.8.2002 and whether they had received the goods sent by the petitioners. There is also a general statement in the affidavit that save as expressly admitted therein and save the matters of the record, each and every allegations in the :5: petition should be deemed to have been specifically and emphatically denied unless the same has been otherwise dealt with or traversed in the affidavit. 6. The impugned FIR is dated 16th of July, 2005 states that during the period from 3rd May, 2002 to 12th August, 2002 the petitioner company had imported Naptha which was being used for manufacture of petroleum products. However, the petitioner company did not get said licence renewed from the office of Collector within time prescribed for such renewal. Since the company is involved in mis-utilisation of Naptha during the said period, there were instructions to lodge the complaint on inspection of the documents like Bill file, Voucher number, Invoice Challan file, etc. of the petitioner company as well as End Use Certificate dated 6th January, 2003 which were not submitted to the Collector’s office within time. As regards the import of Naptha, the stock register as well as sale register though were not available for perusal at the time of inspection and therefore, it could not be gone through and hence it is not known whether during the relevant period the Chemical petroleum products were imported or not by :6: the company. Bills have been prepared in support of sale of the products but the tax has not been paid. As per the survey conducted by the Maharashtra State Level Samittee as per instructions received from the higher authority it was necessary to lodge the complaint against the petitioner company under Section 3 and 7 of the Essential Commodities Act, and hence the FIR came to the filed. 7. Referring to the said FIR it was sought to be submitted on behalf of the petitioners that the allegations about the non renewal of the licence is patently false. The documents which are placed on record along with the FIR disclose that the licence was renewed for the relevant period on payment of necessary licence renewal amount along with the late fee and fine and the same was accepted by the concerned authorities without any reservation and accordingly renewal was granted. Attention was drawn to the annexure which indeed discloses that towards the renewal fee the petitioners had paid Rs. 500/- and towards late fee Rs. 7100/- by a challan dated 15th June, 2001 and the licence was renewed upto 31st December, 2003. The period referred to is from 3rd :7: May, 2002 to 12th August, 2002. Obviously the said period is beyond 15-2-2001 and prior to 31st December, 2003. Consequently, apparently the allegations in the FIR about the renewal of licence beyond the said period is totally incorrect as rightly sought to be contended on behalf of the petitioners. Besides there is a categorical statement to that effect in the petition and though the respondents have filed affidavit-in-reply and sought to make a vague denial of each and every statement in the petition, there is no specific denial to this fact. 8. It is then sought to be contended on behalf of the petitioners that as regards the allegation of failure to pay sales tax, the petitioners company for the relevant time was totally exempted from payment of sales tax. The petitioners have in fact made a categorical statement in the petition to the effect that the Deputy Commissioner of Sales tax by a certificate dated 16th September, 2001 had exempted the petitioners firm from payment of sales tax to the extent of 110% of the investment of the firm in fixed assets which was to the extent of Rs.67,53,100/- till :8: 15th August,2009. The relevant certificates are also produced along with the petition. In the counter affidavit there is complete silence about this categorical statement in the petition. Even in the FIR which is part of the wild allegations about the evasion of sales tax, there is no reference to any amount of the sales tax as such or any amount which was liable to be paid to the sales tax but mere allegation that there was a failure on the part of the petitioners to pay such tax, nor any other basic details which are required to be disclosed in support of such allegations are mentioned in the complaint. In such circumstances, when there is a challenge to the FIR with specific assertion that the petitioners were totally exempted from payment of sales tax during the relevant period and the affidavit of the respondents nowhere discloses the details in that regard nor they dispute the claim of the petitioners with reasonable disclosure of the fact which would raise doubt about genuineness of the claim of the petitioners regarding the total exemption from the payment of sales tax during the relevant time. As already observed above, the affidavit of the respondents in that regard is totally silent. The :9: respondents have also not placed any material to suggest that the complainant at the time of lodging the complaint having any material with the complainant to disclose evasion of sales tax by the petitioners. 9. It is then sought to be contended on behalf of the petitioner that as regards non production of stock register and sales register, necessary copies thereof were made available for the perusal of the Inspector immediately on demand with further explanation that original stock register and sales register were with Chartered Accountant in order to prepare manual returns to be filed. Here again there is no specific denial of the said explanation submitted by the petitioners. There is no denial of the fact that the copies of the said registers were made available. In these circumstances, apparently, these allegations in the FIR are also totally false. 10. The petitioners are also justified in contending that FIR seems to have been lodged merely because there is direction to that effect from the higher authorities without even ascertaining as to :10: whether there is any sufficient material to support the allegations made in the FIR. The respondents in the course of argument have produced the copy of the letter dated 7th July, 2005 and addressed to the Tahasildar Sinnar in relation to various companies. Clause 3 of the said letter refers to certain illegalities having been committed by the companies named in the said letter which includes the petitioner company. However, the said letter also states that it was necessary for the concerned authorities to enquire into the said allegations about the illegalities committed by the companies named in the said letter. On ascertaining whether such illegalities have been committed by the companies, if necessary, action was required to be taken under section 3 and 7 of the Essential Commodities Act. In fact, last but one part of the said letter is clear in that respect. It clearly states that the Tahasildar was required to enquire into the said allegations and ascertain whether the companies were really involved in the commission of illegality and if found so, it was to be prosecuted under section 3 and 7 of the Essential Commodities Act. However, admittedly without bothering to :11: enquire into the said allegations and without ascertaining the truthfulness of the allegation made therein the respondent had chosen to lodge the FIR. 11. The impugned FIR as rightly submitted on behalf of the petitioners in the fact and circumstances of the case do not disclose any offence under sections 3 and 7 of the Essential Commodities Act and hence petitioners are justified in seeking to quash the said FIR. 12. For the reasons recorded above therefore, the petition succeeds. The impugned FIR is, therefore, quashed and set aside. The rule is made absolute in above terms. No order as to costs." (R.M.S.KHANDEPARKAR,J) (R.M.S.KHANDEPARKAR,J) (R.M.S.KHANDEPARKAR,J) ( A.A. SAYED, J.) A.A. SAYED, J.) A.A. SAYED, J.) :12: :13: IN THE HIGH COURT OF JUDICATURE AT BOMBAY :14: APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL WRIT PETITION NO.119 OF 2007 WRIT PETITION NO.119 OF 2007 WRIT PETITION NO.119 OF 2007 1. Roshan Trilokchand Gothi R/o 3 Samrat Apartment, Ashwin Sector, CIDCO, Nashik 2. Deoram Hari Avhad R/o At & Post- Paste, Tal. Sinnar, Dist. Nashik ..... Petitioners V/s 1. Kisan Walzade, Supply Inspector office of Tahsildar, Sinnar, Dist. Nashik. 2. The Inspector of Police, Sinnar Police Station. 3.The State of Maharashtra ...Respondents. Mr.M.S. Mohite for the Petitioners. Mr.P.S. Hingorani,APP for the respondents. CORAM CORAM CORAM : SRI R.M.S. KHANDEPARKAR AND : SRI R.M.S. KHANDEPARKAR AND : SRI R.M.S. KHANDEPARKAR AND :15: SRI SRI SRI A.A. SAYED, JJ. A.A. SAYED, JJ. A.A. SAYED, JJ. DATE DATE DATE : 14TH FEBRUARY, 2008 : 14TH FEBRUARY, 2008 : 14TH FEBRUARY, 2008 P.C. . For the reasons recorded separately in the oral judgment, the following order is passed. "The petition succeeds. The impugned FIR is, therefore, quashed and set aside. The rule is made absolute in above terms. No order as to costs." (R.M.S.KHANDEPARKAR,J) (R.M.S.KHANDEPARKAR,J) (R.M.S.KHANDEPARKAR,J) ( A.A. SAYED, J.) A.A. SAYED, J.) A.A. SAYED, J.)