(1) CRI.APP. 4039.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 4039 OF 2010 Chetan S/o Hirji Cheda, Age : 43 years, Occu.: Business, R/o Trishul Bunglow, 14th Road, Near Dr. Ambedkar Garden, Chembur, Mumbai .. Applicant VERSUS The State of Maharashtra, Through Police Inspector, Police Station, Chalisgaon, Tal. Chalisgaon, District Jalgaon (Copy to be served on APP High Court of Bombay, Bench at Aurangabad) .. Respondent ... Mr. S.S. Thombre, Advocate for the Applicant Mr. N.H. Borade, APP for the respondent-State ... CORAM : V.R. KINGAONKAR, J. DATED : 18TH NOVEMBER, 2010 ORAL ORDER:- 1. By this Application, the applicant seeks direction under section 438 of the Code of Criminal Procedure. His earlier Application (Criminal Application no. 3653 of 2010) was disposed of as withdrawn. (2) CRI.APP. 4039.2010 2. The applicant apprehends arrest in connection with crime no. 250 of 2010 registered at Chalisgaon Police Station for the offence under section 465, 467, 468, 471 and 420 r/w. 34 of the Indian Penal Code and under section 3(1)(B) of the Liquified Petroleum Gas Regulation of Supply and Distribution Order, which is punishable under section 3 r/w. 7 of the Essential Commodities Act. 3. The learned Advocate for the applicant submits that the delay in lodging of the FIR speaks volumes against the prosecution. He would point out that the alleged seizure of two empty tankers was effected on 20.7.2010 yet the FIR was registered on 18.8.2010. He contends that mere seizure of the empty tankers, with which the applicant has no concern, cannot be a substantial reason to justify his arrest. The learned Advocate further submits that the applicant is likely to be humiliated due to the arrest though he is unconcerned with the alleged business of refilling of the gas cylinder. The learned APP however strongly opposes the Application. (3) CRI.APP. 4039.2010 4. The FIR purports to show that the refilling plant was being run in name and style "M/s. Saikrupa Gas Plant", at village Rohini (Tq. Chalisgaon). It prima facie appears that the applicant was running the refilling plant. It appears that somewhere in 2007, the refilling plant was closed down due to dis- continuity of the license granted in favour of the applicant. It is on basis of such dis-continuity of the license that the applicant alleges that he has no nexus with the two empty tankers seized by the Police nor he was indulged in refilling of the gas without any legal authority. According to the prosecution, the applicant was running the refilling plant though he had no license to do such business and used to fill the LPG in cylinders for the purpose of distribution. 5. What appears from the FIR is that watchman of the refilling plant was present at the site when the Police visited the premises of M/s Saikrupa Gas Plant. The watchman could not produce any document. The applicant however visited Chalisgaon in the same evening and produced two receipts which purportedly (4) CRI.APP. 4039.2010 show that the LPG in both the tankers was purchased from M/s. S.T.N. Gas Bottling Company, Pollachi, Main Road, Sundarpuram (T.N.). Thus, the recitals of the FIR prima facie show that the applicant admitted the ownership of the filling plant to justify the filling of the LPG in the two tankers on the ground that the LPG stock was purchased from the bottling plant at Pollachi (Sundarpuram). 6. The statement of Assistant Police Inspector- Ranjeet Dere prima facie shows that he visited the address of M/s. S.T.N. Gas Bottling Company which was stated to be the supplier. It was found that the address was bogus. It was noticed that the name of the proprietor of the said Company was also imaginary. No such person was found residing at the address. In other words, the proprietor and the Company were pseudonymous. 7. It is true that both the tankers were found empty when the raid was conducted. Still however, the investigation papers show that statement of the watchman of the bottling plant was recorded by the Police and he corroborated the case of the (5) CRI.APP. 4039.2010 prosecution regarding the business that was being conducted by the applicant at the bottling plant. His version shows that since about January 2010, the business of the bottling plant was re-commissioned by the applicant. His statement further prima facie shows that the applicant was dealing in refilling of LPG tankers. Added to this, statement of PW Shankar Jumnamal Dhingana reveals that the applicant canvassed for refilling business and requested the customers to obtain the refilling at the said refilling plant. It is important to notice that the Investigating Officer collected vouchers issued by the Business Manager of M/s. Saikrupa (LPG) Gas Plant to M/s. Sohil Gas Agency, which is run by PW Shankar in name of his wife. In view of these circumstances, it will have to be said that the applicant was, in fact, operating the business of the refilling plant and was doing clandestine business of selling LPG. It also appears from the record of the Municipal Toll Naka that the tankers, which were seized by the Police, were practically being plied on the road. The regular activity of egress and ingress of the tankers from the refilling plant of the applicant, (6) CRI.APP. 4039.2010 the first hand information given by his watchman, the information given by the customer i.e. PW Shankar, the absence of any LPG distributor named by the applicant or shown in the record and other circumstances would prima facie indicate that the applicant might be involved in the murky business of the distribution of the LPG which is a essential commodity and is available on subsidized basis. 8. The learned Advocate states that the statement of the watchman is recorded at subsequent stage after the tankers were found empty and at belated stage. This is not stage to sift the evidence and meticulously examine the same and therefore, the contention of the learned Advocate is unaccepted. 9. Considering the foregoing reasons and the investigation papers, the extra ordinary discretionary relief under section 438 of the Code of Criminal Procedure is unavailable to the applicant and therefore, his Application is dismissed. Sd/- [V. R. KINGAONKAR, J.] arp