1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application [ABA] No. 244 of 2011 (Nasir Ahmad Nisar Ahmad Vs. State of Maharashtra) Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. Mr. J.B. Kasat, Advocate for the applicant. Mr. D.B. Patel, A.P.P. for the State/non-applicant. CORAM : M. N. GILANI, J. DATE : 20 th JULY, 2011. Heard. This is an application filed under Section 438 of the Code of Criminal Procedure for issuing directions to release the applicant on bail in the event of his arrest in Crime No. 3048/2011, registered with Police Station Badnera, District Amravati, for the offences punishable under Section 3 read with Section 7 of the Essential Commodities Act, 1955. On 15/06/2011 at 06:45 a.m., Police Inspector Aane, attached to Police Station Badnera, received an information that in the field, falling within the limits of village Gram Pala Shivar, kerosene oil was illegally stored. He along with panchas and police staff visited the spot. He noticed Maruti Van bearing no. MH-20/B/2816 standing near the farm house. One Arif Khan was found removing kerosene oil cans from the Maruti Van and was storing in the 2 farm house. During interrogation, the name of the present applicant was surfaced. Through the statement of the owner of the field, the name of the applicant was revealed. The reply filed by the learned APP points out that the van used in the crime was also possessed by the applicant. Thus prima- facie case of possession and storing the kerosene oil, measuring 440 liters, is made out against the applicant. The provision of Clause-3 of the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993 is attracted. Keeping kerosene oil, measuring more than 400 litres in the farm house cannot be for a personal use. Mr. Kasat, the learned counsel for the applicant, contended that the police custody of the applicant is not at all necessary. He would abide by the condition, if any, imposed by this Court. The applicant has deep root in the society. Whereas, the learned APP points out that one more crime bearing no. 3026/2001 under the provision of the Essential Commodities Act, has been registered against the applicant. The learned counsel for the applicant relied upon the decision in case of Siddharam Satlingappa Mhetre Vs. State of Maharashtra and others, reported in (2011) 1 Supreme Court Cases 694. Their Lordships of Supreme Court 3 by referring to the report of the National Police Commission observed that, ‘According to the Report of the National Police Commission, when the power of arrest is grossly abused and clearly violates the personal liberty of the people, as enshrined under Article 21 of the Constitution, then the courts need to take serious notice of it. When conviction rate is admittedly less than 10%, then the police should be slow in arresting the accused. The courts considering the bail application should try to maintain fine balance between the societal interest vis-a-vis personal liberty while adhering to the fundamental principle of criminal jurisprudence that the accused is presumed to be innocent till he is found guilty by the competent court’. In the case (supra) Their Lordships of the Supreme Court has laid down the parameters to be taken into consideration while dealing with the anticipatory bail. One of the parameters is a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused. It is also laid down that the Court shall consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant. The discretion vested in the Court under Section 438 of the Code of Criminal Procedure is to be exercised 4 with care and depending upon the facts and circumstances justifying its exercise. In the present case, the applicant has been charged for dealing with kerosene oil, which is meant for distribution to the needy persons below poverty line. For effective and proper investigation, custodial interrogation is necessary. In that light of the matter, I do not find any merit in this application. The application is rejected. JUDGE *sdw