1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.4257 OF 2009 Sanjay S/o.Digambarrao Warkad, Age-35 years, Occu-Service as Naib, Tahsildar (Election), R/o.Omerga, Taluka Omerga, Dist. Osmanabad APPLICANT VERSUS The State of Maharashtra, Through the Police Station, Omerga, Taluka Omerga, Dist. Osmanabad RESPONDENT Mr.P.M.Shah, Learned Senior Counsel, with Mr.Mukul Kulkarni, learned counsel for applicant. Mr.N.B.Khandare, learned Public Prosecutor for respondent State. WITH CRIMINAL APPLICATION NO.4261 OF 2009 Uttam S/o.Eknathrao Mudiraj, Age-39 years, Occu-Service Working, As Awwal Karkoon, Omerga, R/o.Govt.Quarter, Omerga, Dist. Osmanabad APPLICANT VERSUS The State of Maharashtra, Through the Police Station, Omerga, Taluka Omerga, Dist. Osmanabad RESPONDENT 2 Mr.R.N.Dhorde, h/f. Mr.S.P.Shah, learned counsel for applicant. Mr.N.B.Khandare, learned public prosecutor for respondent (CORAM : A.V.POTDAR, J.) DATE : 08/01/2010 PER COURT : 1. These two applications are moved by the Additional Supply Officer, Nayab Tahsildar, Omerga who was holding additional charge of Supply Officer during the period 24/03/2009 to 12/06/2009 and the applicant in 4261/2009, who was holding charge of godown keeper at Omerga, for their release on anticipatory bail in the event of their arrest in CR No.184/2009, registered in Omerga Police Station for an offence punishable u/s. 409, 420, 467, 468, 471 r/w. 34 of IPC and u/s. 3 and 7 of The Essential Commodities Act. 2. Heard learned senior counsel Shri.P.M.Shah for applicant in Cri.Appl.no.4257/2009 and also heard learned counsel Shri.Dhorde for applicant in application no.4261/2009. Also heard learned Public Prosecutor appearing for the State. Perused the papers of investigation till carried out. 3. It appears that this offence came to be registered on the report of Naib Tahsildar, Omerga vide his complaint dated 21/11/2009 about the allegations of mis-appropriation of wheat from the government godown during the period of May 2009 and June 2009. 3 4. It is submitted across the bar that it is not under dispute that applicant in Cri,Appl.No.4257/2009 was working as Naib Tahsildar at Omerga and was also holding additional charge of Supply Officer during the said period. It is alleged that he was on leave during the period 21/05/2009 to 31/05/2009. According to learned counsel appearing for this applicant, code of conduct was enforced during the period 24/04/2009 to 16/05/2009. During the course of submissions across the bar, learned senior counsel appearing for the applicant in Cri.Appl.4257/2009 as well as learned counsel appearing for applicant in Cri.Appl.4261/2009 gave the procedure about how to submit the requisition about demand of the food grains to be supplied to the license holders of the fair price shop and how the quantity to be disbursed and distributed by the office of Additional Tahsildar, Supply. During the course of submissions across the bar, the GR dated 23/01/2008 was placed in my hand, wherein the detailed procedure was provided about how the requisition/demand to be submitted in the office of Supply Officer, how this submitted demand to be scrutinized by the Village Scrutiny Committee and how this demand to be approved and later on how the permit is to be prepared. This procedure as given in the GR dated 23/01/2008 is not under dispute at all by the parties concerned. According to learned counsel appearing for the applicant Naib Tahsildar as well as the Godown Keeper drawn my attention towards the fact that during this period, it is the allegation that approximately 3900 quintile wheat was misappropriated at the hands of these government officials of which the price for the wheat taken out from 4 the government godown during the period of May 2009 was in the sum of Rs.54,72,627/- and during the period of June 2009, it is 43,39,670/-. Details of the chart are annexed at page no.70 and page no.91 alongwith the application 4261/2009 submitted by the applicant Godown Keeper. 5. During the course of submissions across the bar, it is tried to urge by both these counsels that so far as the commodity of wheat which was removed from the government godown during this period, the price is already deposited as, as per the procedure, unless the price is deposited by way of challan in the government treasury, no permit is issued to take away these articles from the government godown. In the premise, as entire documents are in the custody of Investigation Officer as well as the price is already deposited as per the government record, the custody of these government officials is not required for custodial interrogation and hence they be released on anticipatory bail. It is also submitted that both these officials are under suspicion. So far as the head quarter of the applicant in Application No.4257/2009 is concerned, is at Osmabad and so far as the applicant in Application No.4261/2009 is concerned, is at Bhoom. They are ready to co-operate with the Investigation Agency and ready to attend the police station whenever required on requisite demand at the hands of concerned Investigation Officer. 6. During the course of submissions across the bar, while opposing these bail applications, it is urged by the Learned Public 5 Prosecutor, appearing for State by projecting his submissions on the basis of record, which is collected during the course of investigation, which indicate that under the scheme to provide the food grains to the fair price shop owners, it is under different categories i.e. B.P.L. i.e. below poverty line, A.P.L. i.e. above poverty line, Antyodaya and Annapurna. So far as the requisition/demand to be submitted by the fair price shop owners i.e. license holders in which shop these food grains were to be sold collected from the government godown or kept for sale to the card holders who are holding the respective cards like the card holders of BPL, card holders of APL or card holders of Antyodaya and the card holders of Annapurna as the case may be. It is projected across the bar by placing the Magnipatra/requisition on record and by pointing out that the shop owner to place specific demand under each of the category. It is brought to my notice that so far as the jurisdiction of these officers are concerned, it comes under the Supply Office of Omerga which includes 31 villages and 74 shops. My attention is drawn towards the requisition book wherein in none of the requisition, there is demand by these license holders demanding the quota of wheat under category APL but at the bottom, there is sanction of wheat under the category of the APL. Other than these 2 applicants, the Supply Officer and the Godown Keeper, there is one more government officer whose designation is Awwal Karkun who is not an applicant before this Court also to play a prominent role. Because on the basis of this demand received, it is to be scrutinized by the Village Scrutiny Committee by considering that the actual quota for the previous month was disbursed by these license 6 holder shop keepers and on satisfaction, this demand to be accepted or approved. It is projected across the bar that in none of the demand letter, there is demand by these shop keepers to provide wheat under the APL scheme. At the same time, my attention is drawn towards the permits which were under the signatures of the applicant in application no.4257/2009 who suppose to sign the permit and one copy of that permit remain in the office of applicant in Cri.Appl.4257/2009. Another copy goes to godown keeper, the applicant in Cri.Appl.4261/2009 and the third copy remain with the person, who is lifting the quota i.e. the concerned person holding the license of fair price shop or the person who was authorized by this fair price shop owner. It is also brought to my notice that while lifting this quota, a register is maintained in the godown wherein at the time of lifting quota by the fair price shop owner, he has to put his signature in that register or if he has deputed any person to lift the quota on his behalf, then the said deputed person has also to put his signature in the said register. Also before lifting this quota, the price of this commodity to be lifted to be deposited by Challan in the Government treasury. The challans which were collected during the investigation till carried out from the treasury concerned were placed in my hand for my perusal. Also the register maintained in which specimen signatures of the license of fair price shop keeper or their authorized persons is also produced before me for my perusal. It is brought to my notice by bringing the random challans that the signature of the authorized person or the concerned shop keeper are not matching with each other. According to learned public 7 prosecutor that these specimen signatures to be work like the specimen signatures which are maintained in the bank to control and conduct the transactions in the bank. 7. According to learned Public Prosecutor, considering these documents collected during the inquiry, it is necessary that when the wheat came out of the godown which is under the control of the applicant in Cri.Appl.4261/2009 and for which the permit is issued under the signature of the applicant in Cri.Appl.4257/2009. Then if the license holders have not demanded a lifted wheat under the APL category, their custodial interrogation is necessary to find out where these goods have gone as there was no demand placed by these shop keepers for supply and distribution of these food grains. 8. Considering these submissions across the bar, one fact is clear that even though the goods came out from the government godown on depositing the price of the goods by way of challan in the government treasury, it itself is not suffice that as the consideration of the goods which were came out from the government godown is deposited with the government that will not reduce the liability of these government officers . At the same time, the fact is clear from the copy of the demand book produced before this Court that none of the shop keeper has demanded wheat under the APL scheme. It is also to be noted that the wheat came out of the government godown under the permit which is signed by the applicant in Cri.Appl.No. 4257/2009, at the same time the Challan and the signature found on 8 the challan do not tally each other with the register maintained in the office of godown keeper . In the premise, this is not a case where the Court can exercise the discretion to release these applicants u/s. 438 of Cr.P.C. in the event of their arrest to release them on anticipatory bail. Considering the huge quantity of the government food grains misappropriated, which was under the control of these 2 officers, these applications sans any merit and deserves to be rejected. Hence order – Both these applications stand rejected. 9. After the order is dictated, learned Senior Counsel has requested to continue the protection granted in favour of these applicants for further period of 2 weeks. As these applicants were enjoying the liberty of interim protection, protection extended for further period of 2 weeks. (A.V.POTDAR, J.) khs/JAN 2010/cri.appl.4257-09