{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.4145 OF 2009 Nitin s/o Laxman Pokale & Another APPLICANTS VERSUS The State of Maharashtra RESPONDENT ....... Mr.N.V.Gaware, Advocate for applicants Mr.N.B.Patil, APP for the State ....... [CORAM : A.V.POTDAR, J.] DATE: 7th December 2009 PER COURT: 1. By the present application, the applicants have approached this Court for their release on anticipatory bail in the event of their arrest in connection with CR No.90/2009 registered with Paithan police station for an offence punishable u/s 379 of the IPC and u/s 21 (1) (2) (3) (4) of the Minor Mineral Act. 2. Heard learned counsel for the applicants followed by the submissions of the learned APP. Perused the papers of investigation carried out till today. 3. Learned counsel for applicants has urged that so far as the present applicants are concerned, they have nothing to do with the illegal excavation of sand from the Godavari riverbed where the JCB, owned by the present applicant was found. It appears that the sand was found in the bucket of the JCB owned by the {2} applicants, which was found in the riverbed Godavari and also found 20 brass sand stored at some other place. No probable explanation is coming forth as to how the JCB owned by the applicants, was found at the spot. 4. It is tried to be urged, by pointing out a letter received from Vaidyanath-Sant Eknath Sakhar Udyog, Paithan, that the said JCB was given on rental basis to the said Sugar Factory for construction of road. There is nothing on record as to where the construction of road was going on and whether the same is adjacent to the Govadari riverbed, where the JCB was found and how the JCB was found in the riverbed. 5. In absence of any probable explanation, as to how the JCB, owned by the applicants, reached in the Godavari Riverbed, from where it was seized while illegally excavating sand, it cannot be said that the applicant, who are owners of the said JCB, are nowhere connected with the said sand theft. In the premise no case is made out to use discretion u/s 438 of the Criminal Procedure Code. 6. In the result, the application, which is sans merits, stands rejected. [A.V.POTDAR, J.] drp/criapln4145-09