1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.1410 OF 2010 Shobha W/o.Balaji Potdar, Age-36 years, Occu-Business and Household, R/o.Gunjoti, Tq.Omerga, Dist. Osmanabad. APPLICANT VERSUS The State of Maharashtra RESPONDENT WITH CRIMINAL APPLICATION NO.1442 OF 2010 Sadhu @ Sahadeo Pandurang Gaikwad, Age-45 years, Occu-Agriculturist, R/o.Gunjoti, Tq.Omerga, Dist. Osmanabad. The Chairman, Vividh Karyakari Seva Sahakari Society, Shop No.1 and 2 APPLICANT Versus The State of Maharashtra RESPONDENT Mr.N.V.Gaware, learned counsel for applicants in both applications. Mr.B.V.Wagh, learned AGP for respondent State. (CORAM : A.V.POTDAR, J.) DATE : 21 st APRIL 2010 PER COURT : 2 1. By the present applications, the applicants, owner of the fair price shop, village Gunjoti, Tal.Omerga, Dist. Osmanabad and the applicant in Cri.Appl.1442/2010, the Chairman of Gunjoti Vividh Karyakari Vikas Society, have approached this Court for their release on bail in connection with CR No.184/2009, registered in Omerga Police Station, for the offence punishable u/s. 409, 420, 467, 468, 471, 34 of The IPC and Section 3,7 of The Essential Commodities Act, in which after completion of investigation, charge sheet was filed on 16/04/2010. 2. These applicants were arrested as they were surrendered before the police on 08/02/2010 and were shown as put under arrest on 12/02/2010. It appears that these applicants surrendered before police as per the directions given by the Apex Court, when these applicants alongwith others have approached the Apex Court, as their anticipatory bail applications, considering the serious nature of allegations against them, and their involvement, were rejected. 3. Considering the submissions across the bar, it appears that the racket was burst in Omerga Taluka, Dist.Osmanabad, about the black marketing of wheat stored in the Government godown and supplied to the fair price shop owners through the concerned Vividh Karyakari Societies. The food-grain to be distributed to the persons holding ration cards about above poverty line as well as below poverty line. From the record, which is made available, it reveals that the complaint came to be lodged against number of persons on 3 29/11/2009 by the District Supply Officer concerned and on the basis of which CR No.184/2009 came to be registered. It appears that before registration of offence, show cause notice appeared to be given to both these applicants on 26/08/2009 by the District Supply Officer, Dist. Osmanabad about the wheat provided to the fair price shop owner, the applicant in Cri.Appl.1410/2010, as well as to the shop run by Vividh Karyakari Vikas Society, of which the applicant in Cri.Appl.No.1442/10 is the Chairman. The Management is with the salesman who is looking after the day to day administration of the said shop and maintaining the relevant record. In response to this show cause notice dated 26/08/2009, it appears that the reply was given by both the applicants. In the said reply, they denied the allegations against them. It appears that Inquiry Committee of 5 members was constituted to inquire about the alleged allegations against applicant and number of other shop owners as well as the revenue officers, who are indulged in the said offence. During this inquiry, statement of the concerned card holders to whom the commodity was sold in the said fair price shop were recorded. Record maintained in the fair price shop as well as the society like the bill books, the inward-outward register and the entries made in the said register about distribution of the commodity i.e. wheat to the different card holders is seized. Thereafter the said offence appeared to be registered. As these applicants and others who were apprehending their arrest in connection with this offence, approached this Court for their release on anticipatory bail, but that relief was refused to them. Thereafter, they moved the Apex Court 4 and as per the directions given by the Apex Court, as the Apex Court declined to interfere in the order passed by this Court, directed these applicants and others to surrender before the police with directions that after these applicants will be surrendered, then the Lower Court to decide their bail applications expeditiously, if moved and on the basis of evidence available. It appears that because of these directions, these applicants surrendered before police on 08/02/2010, but were shown as arrested on 12/02/2010. 4. 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 these applicants and at present all the documents are with Investigation Officer, their custodial interrogation is not necessary. Considering the allegations against these applicants about scrolling as well as inter-pollution in the record maintained by them, 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 these applicants. In the premise, considering the nature of allegations against them, the offence for which they are prosecuted, are not punishable with life imprisonment or death. In the premise, it is urged, not to detain these applicants behind bars for uncertain 5 period, but to release them on bail on certain conditions, which they are ready to abide. 5. While opposing the bail application, it is urged across the bar by learned APP appearing for the State that considering the gravity of offence and even though, the seized record is in the custody of Investigation Officer, possibility can not be rulled out that if these applicants were released on bail, they may tamper the evidence of prosecution and again indulge in the similar offences, hence prayed to reject the application. 6. Considering these rival submissions across the bar, one fact is clear that considering the allegations against these applicants and even if the license were issued in their favour, on the strength of which, they are 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 these applicants, 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 these applicants. The second aspect is about tampering of evidence. Considering the nature of allegations against applicants, 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 these applicants. If there is access to the applicants to the documents in the custody of Investigation Officer, 6 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 these applicants to face the trial. Considering the fact that these applicants have roots in the society and even if released on bail, there are no chances that they will not face the trial. In the premise, case is made out to enlarge the applicants on bail, but on certain stringent conditions. In the premise, following is the order : O R D E R 1. Both these applications are hereby allowed. 2. Both the applicants be released on bail, on furnishing solvent surety in the sum of Rs.25,000/- each and on executing PR bond in the like amount. 3. After released on bail, the applicants 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. Both the applicants, 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. Both the applications stand disposed of in terms of above order. (A.V.POTDAR, J.) khs/APRIL 2010/cri.appl.1410-10