(1) CRI. APLN. 4305.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.4305 OF 2010 1. Girish S/o Prabhakar Agrawal, Age : 51 years, Occu.: Business Agrawal Nagar, Dhule, Dist. Dhule 2. Satishkumar S/o Ramlal Agrawal, Aged : 53 years, Occu.: Business, 3228, Agra Road, Dhule, R/o Dhule, Tq. and Dist. Dhule 3. Deepak S/o Tarachand Agrawal, Aged : 40 years, Occu.: Business, R/o. Indore, Taluka and Dist. Indore, (M.P.) 8/13, Yashwant Niwas Road, Indore (M.P.) .. APPLICANTS VERSUS The State of Maharashtra Through Inspector, State Excise, Flying Squad, Old Custom House, Shahid Bhagatsingh Marg, Mumbai-32 Maharashtra State, Mumbai (Copy to be served on P.P. High Court Bombay, Bench At Aurangabad) .. RESPONDENT ..... Mr. V.J. Dixit, Sr. Advocate i/b. Mr. A.N. Nagargoje, Advocate for the Applicants Mr. B.J. Sonawane, A.P.P. for the respondent/State. ..... (2) CRI. APLN. 4305.2010 CORAM : V.R. KINGAONKAR, J. DATED : 30TH NOVEMBER, 2010 ORAL ORDER:- 1. By this Application under section 438 of the Code of Criminal Procedure, the applicants who are apparently partners in business of running Khandsari Sugar unit in the name and style as "M/s. Shrikrishna Khandsari Sugar Mills, Akkalkuwa Road, Taloda (Dist. Nandurbar) seek directions to release themselves on bail in the event of their arrest. 2. The applicants apprehend their arrest in connection with crime no. 289 of 2010 registered at State Excise Police Station, Mumbai for offences punishable under section 70, 81 and 83 of the Bombay Prohibition Act, 1949. 3. Heard learned Senior counsel Mr. Dixit for the applicants and learned A.P.P. Mr. Sonawane for the State. Perused the investigation papers. 4. It prima facie appears from the record that the license was granted for possession and sale of molasses under the conditions enumerated in the (3) CRI. APLN. 4305.2010 license, copy of which is placed on record vide exhibit "A" appended to the Application. The conditions enumerated in the license prima facie indicate that the applicants were required to store the molasses in the premises of Khandsari Sugar unit and there is a prohibition imposed for removal of the molasses in case of the quantity stated under condition no. 3(4). It appears that the applicants obtained license for sale of the molasses to certain extent. It further appears that on atleast two occasions the Special Squad of Excise Department visited the facotry unit of the applicants. The applicants were called upon to furnish returns of the stock and maintain the relevant registers. The panchanama dated 27.6.2009 purports to show that there were 21 cement tanks in the premises of the manufacturing unit of the applicants, out of which 10 were empty whereas other 11 tanks were found to contain 275 Metric Tonnes of molasses. One of the tank was completely filled with molasses of 3500 M.T. It appears that the applicants declared that in the month of April, 2009 the stock of molasses in the factory unit was only 500 M.T. whereas it was excess (4) CRI. APLN. 4305.2010 than the declared stock. The Excise Department noticed various irregularities in maintaining the stock register and other documents of Khandsari sugar unit of the applicants. It appears, no doubt, that vide order dated 17.9.2010 the applicants were allowed to sale by exporting 1000 M.T. of molasses to M/s. Som Distilleries Pvt. Ltd. at Bhopal. 5. The main allegation against the applicants is not only in respect of the irregularities committed by them in maintaining the relevant register and particularly showing less stock of molasses than the actual storage thereof, but it is in respect of the sale of molasses which is prohibited being "the viscous liquid" containing solution useful for preparation of black jaggery. It is important to notice that use of black jaggery is prohibited under the Bombay Prohibition Act, 1949 and various Government circulars issued under the said Act inasmuch as such kind of jaggery is used in manufacturing/preparing of the illicit liquor. In other words, the applicants utilised the stock of molasses for dealing in the murky business of selling the molasses which could be used for (5) CRI. APLN. 4305.2010 preparation/manufacturing of illicit country liquor that is the most objectionable charge levelled against them. It prima facie appears that license of the applicants was cancelled. However, the license seems to have been restored by the order of the Excise Minister. A copy of the said order is included in the investigation papers. Perusal of the order issued by the Minister prima facie shows distortion of certain facts and mis-application of the relevant criterion. The Minister, appears to have restored the license of the applicants on the ground that the criminal proceedings against the applicants have been stayed by this Court. The ad- interim stay granted to the criminal proceedings would not however be a ground to restore the license inasmuch as both the proceedings are of separate nature and do not operate in the same field. The Excise Department, may therefore apply for review of the said order or may take appropriate proceedings for cancellation of the license of the applicants on basis of the irregularities which are noticed in running of the Khandsari sugar unit. (6) CRI. APLN. 4305.2010 6. It appears further that the FIR was lodged at belated stage. 2024 Tonnes of black jaggery was ready in place of sugar factory under a supurtnama executed by the applicants. The Excise Department may auction stock of black jaggery and take appropriate steps for disposal thereof. The applicants, in case it is found that they have removed the stock of the black jaggery (molasses) will not be granted any liberty and the order will be revoked on Application of the State Excise Department. The State may apply for cancellation of the anticipatory bail in such event if there is illegal removal of the stock of the black jaggery. 7. Since it transpires that the offence is registered on account of the irregularities committed by the applicants and that there is restoration of the license, the arrest of the applicants is not essential for any effective investigation. It would suffice if the applicants are directed to remain personally present in the Office of the State Excise Department and to co-operate with the Investigating Officer by producing necessary record and facing the interrogation. (7) CRI. APLN. 4305.2010 8. In the result, the Application is allowed. The applicants are directed to be released on bail, in the event of their arrest, on furnishing of bail bonds in sum of Rs.25,000/- (Rs. Twenty Five Thousand) each alongwith surety bond each in the like sum on conditions enumerated below:- (I) That the applicants shall personally attend the Office of the State Excise Department at Mumbai and shall co-operate with the Investigating Officer by attending the said Office on each Tuesday and Friday between 10.00 am. to 2.00 pm. They shall actively participate during course of investigation by producing all the relevant documents and furnishing of information, as may be called upon by the Investigating Officer. (II) That, they shall not remove any stock of the molasses which is seized by the Inspector of the Flying Squad of the Excise Department and shall not tamper with any record in the context of such stock. (III) The applicants if are found to have tampered with any record or illegal removal of the (8) CRI. APLN. 4305.2010 stock of the molasses containing of the black jaggery, then the anticipatory bail granted to them will be revoked on Application of the State Excise Department if prima facie case is made out regarding such kind of illegal act of the applicants. (IV) The applicants shall furnish an undertaking that they will not indulge in any further activity of preparing molasses containing black jaggery and if such activity is continued, no further directions under section 438 of the Code of Criminal Procedure may be availed by them. (V) The State Excise Department is at liberty to take appropriate action as enumerated in the earlier part of the instant order. The applicants shall personally attend the Office of the State Excise Department, Mumbai for four weeks as per the schedule mentioned above or till filing of the chargesheet, whichever is earlier. Sd/- [V. R. KINGAONKAR, J.] arp