1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application (ABA) No.216/2011 ( Ghanshyam Thakurdas Rathi ..Vs.. State of Maharashtra, through PS.O., P.S. Washim, Tq. and Distt. Washim ) Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. Mr. A.S. Mardikar & Mr. D.I. Jain, Advs. for applicant. Mr. N.R. Rode, A.P.P. for respondent/State. CORAM : M.N. GILANI, J. DATED : 30.6.2011. 1. This is an application under section 438 of the Criminal Procedure Code for directions to release the applicant on bail in the event of his arrest in Crime No. 3067/2011, registered with the police station Washim for the offences punishable under sections 3, 6 and 7 of the Essential Commodities Act read with Clauses 6, 7 and 3(3) of the Fertilizer (Control) Order, 1985. 2. The applicant is a Proprietor of M/s. Krushi Samruddhi who deals in business of selling fertilizers. During the period from 26/5/2011 to 27/5/2011 he sold fertilizers including Urea, Super Danedar to the various farmers. On the night of 28/5/2011 a truck loaded with 200 bags of Urea was intercepted by the Agriculture Officer, Washim. Then F.I.R. was lodged and on that basis the aforesaid crime came to be registered. It is alleged in the F.I.R. that on 23/5/2011 200 bags of Urea were loaded in a truck and were being transported to Swami Agro Agencies, Kalamnuri, Distt. Hingoli. 3. It is the case of the applicant that 200 bags of Urea found in the truck 2 bearing Registration No.MH-31 M-4656 were in fact sold from his shop to various agriculturists and not to Swami Agro Agencies, Kalamnuri. He had issued bills in favour of those agriculturists. The agriculturists loaded the fertilizers in the truck and were carrying to their destinations. After seizure all these agriculturists have moved the Court for release of the fertilizers on supratnama by producing the purchase memo. It is, therefore, submitted that no offence as alleged is made out. 4. Learned counsel for the applicant also invited my attention to the provisions of section 3 of the Fertilizer (Control) Order, 1985. According to him, there is no whisper that it was sold for the price exceeding the maximum price or rate fixed and the alleged act does not fall in any of the clauses of section 3 of said Order. According to him, he possesses all the documents like stock register, bill book etc. to show his innocence. He has therefore, prayed for directions to release the applicant on bail in the event of his arrest in the aforesaid crime. 5. Learned A.P.P. resisted this application by contending that the offences alleged to have been committed fall under the provisions of Essential Commodities Act. The fact that fertilizers were being dispatched to Swami Agro Agencies and not to the agriculturists as claimed by the applicant, speaks volumes. If at all any cash memos are issued by the applicant in favour of the agriculturists, as claimed by him, they are fake in the sense that fertilizer was never sold to them but they were being dispatched to Swami Agro Agencies, Kalamnuri. Investigation is in progress. Thus the discretions of granting anticipatory bail in favour of the applicant who is involved in such nature of offences cannot be exercised. 6. Learned A.P.P. produced case diary for my perusal. 7. The F.I.R. was lodged on the midnight intervening 28/5/2011 and 29/5/2011 by Pralhad Khandare, Agriculture Officer and Quality Control Inspector. 3 In the F.I.R. it is averred that on the midnight intervening on 28/5/2011 and 29/5/2011 he received a secret information that at the distance of three kilometers from the town Washim a truck loaded with fertilizer Urea (Ujwalla) is standing. In pursuance to this the truck bearing No.MH-31 M-4656 was intercepted. It was loaded with 200 bags of Urea (10 Metric Ton). The driver of the truck produced the transport memo (bilty) dated 23/5/2011 showing that the goods were loaded by the applicant and those were destined for Swami Agro Agencies, Kalamnuri. Therefore, it was seized and then F.I.R. was lodged. The transport memo is prepared by Darbar Transport Company, Amravati. It bears the name of driver of the truck. Place of origin is shown as Amravati. It was to be delivered at Kalamnuri to Swami Agro Agencies, Kalamnuri. Consignors name is shown as Krushi Samruddhi Agency, Amravati. The weight is shown as 10 metric ton. In the coloumn of number of articles the figure “200 bags” is written. 8. Statement of Sheikh Munir Sheikh Abdul has been recorded. He stated that on 28/5/2011 he was supposed to carry the truck towards Washim. For getting some load, he contacted Darbar Transport. Owner of Krushi Samruddhi Agencies, Amravati engaged his truck for transporting 200 bags of Urea to Swami Agro Agencies, Kalamnuri, Distt. Hingoli. According to him, 200 bags of Urea were loaded from the godown of Krushi Samruddhi Agencies, Amravati. Then the transport memo was prepared. On 28/5/2011 at 5 p.m. he started for the said destination. When he reached near Washim check post, his truck went out of order. While truck was being repaired Agriculture Officers came and raided the truck. 9. In the light of the aforesaid statement, if the case of the applicant is to be believed, it would, at this stage, amount to discarding the statement of the driver. 4 His statement that on 28/5/2011 his truck was loaded and he was carrying it to Kalamnuri, Distt. Hingoli is supported with circumstances like the time of interception and place where it was intercepted. The Transporters are only concerned with the consignor, consignee and with their freight charges. The fact that the applicant has prepared bills in the name of Agriculturists, does not, at this stage and particularly in the light of the evidence discussed above would substantiate his defence. To set right the record it is necessary to prepare the bills in the name of Agriculturists. 10. The contention, of learned counsel for the applicant that no clause of section 3 of the Fertilizers (Control) Order, 1985 is attracted, has no force. This is for the reason that the applicant has put forth a specific case that the fertilizer loaded in the truck was in fact sold to the Agriculturists under cash memos/invoices. Whereas, prima facie, it appears otherwise. It was being transported to Swami Agro Agencies, Kalamnuri, Distt. Hingoli without there being any cash or credit memo. The presumption would be that in the days of shortage this was being done to earn extra profit. Even otherwise also the Dealer has to issue cash memos or credit memos as provided under Rule 5 of the said order. 11. Considering the nature of accusations and particularly offence being under the Essential Commodities Act, I do not find it fit, to grant anticipatory bail to the applicant. 12. Application is rejected. JUDGE Tambaskar.