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CR.MA/9716/2011 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 9716 of 2011
=========================================================
JETHANAND
KHEMCHAND LUHANA - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================================
Appearance
:
MR
SIRAJ R GORI for
Applicant
Ms.
Manisha L. Shah, APP, for respondent
No.1
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 19/07/2011 ORAL ORDER
This
application is filed under Section 438 of the Code of Criminal
Procedure in connection with first information report registered at
CR No.II-110 of 2011 with Godhra Town “A” Division
Police Station, Godhra for the offences punishable under Section 7
of the Essential Commodities Act and Sections 2, 6(4), 7(3) and 7 of
P.D.S. (Control) Order, 2011.
The
learned counsel for the applicant submits that the basic allegation
against the applicant is of committing offence under the Essential
Commodities Act, Rules, Regulations and Control Order made
thereunder and the registered ration cards allotted to the rationing
shop, as shown, are not tallying with the ‘on-line’ voters’ list
and, on the basis of short-fall, the Authority has presumed that
the essential commodities for the last 36 months are divested or
sold contrary to the provisions of the law. It is further submitted
that the ration card is issued by the Mamlatdar and the Competent
Authority of the Food and Civil Supplies Department of the State of
Gujarat and the applicant has no control over it. That, once such
ration cards are allotted, necessary action is to be taken at the
end of the owner of the rationing shop and the commodities so
distributed will be entered into the ration cards as well as the
bill register and the stock will be shown accordingly in the
register of the stock which will also indicate purchase as well as
sale of the essential commodities. That, the criteria for issuance
of ration cards and registration of voters are different and no
presumption or assumption can be drawn on the basis of names of
ration-card holders and those registered with ‘on-line’ registration
of the voters. Besides, the complaint was registered on or around
20th June 2011 onwards and the alleged stock of essential
commodities have been seized. That, the applicant is available for
investigation, but custodial interrogation in such type of case is
not necessary. The applicant is a permanent resident and has
property in Godhra and will not flee from justice. In view of the
above, the applicant may be granted anticipatory bail.
Ms.
Manisha Shah, learned APP, submits that to find out the true persons
who are holding ration cards and distributed essential commodities
as per the register maintained by the ration-shop owner and other
details, custodial interrogation of the applicant is necessary. It
is further submitted that in the case of divesting of a huge stock
of essential commodities, powers under Section 438 of the Code
cannot be exercised.
Having
heard learned counsel for the parties and overall consideration of
allegations, perusal of the papers, provisions of the Act, Rules and
Regulations and conditions of the licence, prima-facie, except a
bare version in the complaint about not tallying or matching of
ration-card holders with the voter’s list, complaint and police
papers at this stage reveal the amount calculated of essential
commodities distributed for the last 36 months, therefore, custodial
interrogation is not necessary since the Competent Authority under
the Act is conferred with powers to take action in accordance with
law including seizure of stock of commodities, all registers,
ration-cards, bills and even suspension of licence and further
action if deemed fit.
Considering
the above, at this stage, I am inclined to grant anticipatory bail
to the applicant. This Court has also taken into consideration the
law laid down by the Apex Court in the case of Siddharam
Satlingappa Mhetre v. State of Maharashtra & Ors. Reported in
[2011]1 SCC 694, wherein the Apex Court reiterated the law
laid down by the Constitutional Bench in the case of Shri
Gurubaksh Singh Sibbia & Ors. Reported in [1980]2 SCC 565.
Learned
counsel for the parties do not press for further reasoned order.
In
the result, this application is allowed by directing that in the
event of the applicant herein being arrested pursuant to FIR being
first information report registered at CR No.II-110 of 2011 with
Godhra Town “A” Division Police Station, Godhra the
applicant shall be released on bail on furnishing a bond of
Rs.10,000/- (Rupees Ten Thousand only) with one surety of like
amount on following conditions :-
[a] shall
cooperate with the investigation and make himself available for
interrogation whenever required.
[b] shall
remain present at concerned Police Station on 29.7.2011 between
11:00 am to 2:00 pm:
[c] shall
not hamper the investigation in any manner nor shall directly or
indirectly make any inducement, threat or promise to any witness so
as to dissuade them from disclosing such facts to the Court or to any
Police Officer;
[d] shall
at the time of execution of bond, furnish the address to the
Investigating Officer and the Court concerned and shall not change
the residence till the final disposal of the case or till further
orders;
[e]
will not leave India without the permission of the Court and, if is
holding a Passport, shall surrender the same before the trial Court
immediately
[f] It
would be open to the Investigating Officer to file an application for
remand, if he considers it just and proper and the concerned
Magistrate would decide it on merits.
[g] despite
this order, it would be open for the Investigating Agency to apply to
the competent Magistrate, for police remand of the applicant. The
applicant shall remain present before the learned Magistrate on the
first date of hearing of such application and on all subsequent
occasions, as may be directed by the learned Magistrate. This would
be sufficient to treat the accused in the judicial custody for the
purpose of entertaining application of the prosecution for police
remand. This is, however, without prejudice to the right of the
accused to seek stay against an order of remand, if ultimately
granted, and the power of the learned Magistrate to consider such a
request in accordance with law. It is clarified that the applicant,
even if, remanded to the police custody, upon completion of such
period of police remand, shall be set free immediately, subject to
other conditions of this anticipatory bail order.
The
observations made in this order are only for the purpose of exercise
of powers under Section 438 of the Code and shall have no bearing on
any other proceedings pending before any Court or Forum or Authority.
Rule made absolute. Application is disposed of accordingly. Direct
service is permitted.
(ANANT
S. DAVE, J.)
[swamy]
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