SURENDRA AGRAWAL Vs. CENTRAL BUREAU OF INVESTIGATION

JUDGEMENT

(1.) Present application has been filed with the prayer to quash the charge sheet no. 01 of 2016 dated 12.1.2016 as well as the entire proceedings of case no. 2 of 2016, arising out of RC-2(E)/2004/EOW-I/DLI (C.B.I. vs. Sri Bankey Bihari Chemicals Private Limited and others), under Section 120-B read with Sections 420, 467, 468, 471 IPC and 7 and 9 of Essential Commodities Act read with Clause 3(iv) and (v) of Naptha (Acquisition, Sale, Storage and Prevention of Use in Automobile) Order, 2000 pending before Special Judicial Magistrate, C.B.I., Ghaziabad and also the cognizance order dated 02.02.2016 and further to stay further proceedings of the aforesaid case.

(2.) Heard Shri G.S. Chaturvedi, learned Senior Advocate assisted by Shri Rajiv Lochan Shukla, leanred counsel for the applicants and Shri Gyan Prakash, learned Senior Advocate assisted by Shri Sanjay Kumar Yadav, learned counsel appearing for the C.B.I.

(3.) It was submitted by the learned Senior Counsel appearing for the applicants that no prima facie case is made out against the applicants. Order taking cognizance on the charge sheet is illegal and without application of judicial mind. Referring to documents annexed with the application as well as the affidavits it was further submitted that there is no breach of any Control Order. Applicants purchased Naphtha after paying the consideration amount and duties/Taxes imposed upon by the Government. It was next contended that the applicants had licence for storage of Naphtha and for manufacturing the industrial solvent. Time to time competent authorities have also taken samples from the Unit of the applicants and certified the process. End use certificates have also been issued by the D.S.O., Moradabad. At this juncture, learned Senior Counsel referred to annxure No. 6 of the application and further submitted that allegations leveled in this regard in the charge sheet against the applicants are false. It was next contended that there was no requirement to obtain end use certificate from the firms to which industrial solvent had been sold. It was also submitted that there was no prohibition regarding import of Naphtha, as is clear from the affidavit submitted by the C.B.I. in the Gujarat High Court. F.I.R. lodged in the State of U.P. and investigation done in lieu thereof is contrary to law and is nullity. Since there was no consent of the State of U.P. on the day of lodging the F.I.R. and the investigation started in lieu thereof, therefore, also the entire proceeding of the aforesaid criminal case is nothing but an abuse of process of law. Learned Senior Counsel appearing for the applicants referred the date of F.I.R. i.e. 21.02.2004 lodged at Delhi and the date of Notification i.e. 31/5/2004 issued by the Central Government regarding the application of Delhi Special Police Establishment Act, 1946 in the State of U. P. for the cases of Essential Commodities Act and further submitted that mandatory requirements have not been followed. Concerned Magistrate ought to have taken into consideration at the time of taking cognizance the legal mandate required under Section 6 of the Delhi Police Special Establishment Act, 1946 but it failed in doing so. Learned counsel for the applicants also placed reliance on the state of U.P. amendment in Section 11 of the Essential Commodities Act and further submitted that mandatory requirement of Section 11 of the Essential Commodities Act through State of U.P. Amendment have not been followed. Thus, proceedings of the aforesaid criminal case on the aforesaid grounds can also not continue. At this juncture, learned Senior Counsel placed reliance on the law laid by Hon'ble Supreme Court in the case of State of Punjab Vs. Davinder Pal Singh Bhullar and others, AIR 2012 SC 364 and further submitted that as per the provisions of Naptha (Acquisition, Sale, Storage and Prevention of Use in Automobile) Order, 2000 and Solvent, Raffinate and Slop (Acquisition, Sale, Storage and Prevention of Use in Automobiles) Order, 2000 there was no requirement for obtaining end use certificate at the level of applicants. Aforesaid Control Order "Solvent, Raffinate and Slop (Acquisition, Sale, Storage and Prevention of Use in Automobiles) Order, 2000" was amended subsequently and was made applicable since 01.01.2002, therefore, also the proceeding of the aforesaid criminal case is abuse of process of law. Referring to the documents annexed with the application and supplementary affidavits it was further submitted that documents annexed with-it have not been controverted and vague reply has been given in the counter affidavit. End use certificate annexed with the application was issued by government authority. Since no specific reply has been made by the C.B.I., the aforesaid documents can be relied upon at this stage.