LAWS(BOM)-2002-9-110

OLLALA KAMLAKAR LACHAIH Vs. STATE OF MAHARASHTRA

Decided On September 19, 2002
OLLALA KAMLAKAR LACHAIH Appellant
V/S
STATE OF MAHARASHTRA Respondents

JUDGEMENT

(1.) THESE petitions arise out of the same F. I. R. which is a subject matter of challenge in both the petitions and as such the petitions were heard together and are being disposed of by common order. We shall first refer briefly to the facts in these petitions.

(2.) IN Criminal Writ Petition No. 247/02, the petitioners case is that the F. I. R. does not disclose any offence against them and that there is no material to show that they are involved in any sort of terrorist activities and as such they seek quashing of the prosecution of the petitioners under Prevention of Terrorism Act, 2002 (hereinafter referred as POTA ). According to the petitioners, petitioner No. 1 is an investing partner and petitioner No. 2 has working knowledge of business of Tendu leaves. Both the petitioners are Tendu Leave Contractors. Petitioner No. 1 is also a registered P. W. D. Contractor. Petitioner No. 1 had applied to the Government for permission to collect Tendu Leaves and after complying with the necessary formalities entered into an agreement with the Forest Department of State of Maharashtra for collection of Tendu Leaves. According to the petitioners, they had entered into a contract with A. A. Nayeem-Bidi Contractor who purchases Tendu Leaves and supplies it to other Bidi Factories. The petitioners were running out of fund and as such they were paid Rs. 8 lacs as advance for supplying Tendu Leaves by the said Bidi Contractor A. A. Nayeem who is the petitioner in other Writ Petition No. 255/02. Out of the said amount of Rs. 8 lacs, a sum of Rs. 5. 5 lacs was seized by the Police at Ballarshah on 28-5-2002 from the Vehicle parked in front of Hotel Arjun. At the time of seizure, the driver of the vehicle was present but the petitioners were away. According to the petitioners, they came to know about the registration of the F. I. R. and as such they surrendered before the Additional Superintendent of Police on 4-6-2002. According to the petitioners, the names of the petitioners do not figure anywhere in the F. I. R. lodged by Bapu Reddy. The petitioners had, therefore, sought a writ of Habeas Corpus as also for quashing and setting aside the prosecution of the petitioners for the offence under sections 366, 367 of the Indian Penal Code and Arms Act and under the provisions of POTA. The prayer for Habeas Corpus has not been pressed.

(3.) IN Criminal Writ Petition No. 255/2002, the petitioner has referred the contents of the F. I. R. in various paragraphs of the petition. According to the petitioner, he was called by respondent No. 3 on 12-6-2002 for the purpose of investigation and he was arrested for the offence under sections 363, 368, 143, 146, 147, 148, 149 and 121 of the Indian Penal Code read with section 3 (25) of the Arms Act under section 3 (3) of POTA. According to the petitioner, he is not, in any manner, involved in the matter and the petitioner is at the most a victim of the crime and can never be associated in the crime. According to the petitioner, there are no allegations whatsoever for even the remotest possible involvement; that a sum of Rs. 8 lacs was advanced by the petitioner to the Unit Contractors viz. Khawaja Moiddin and Kamlakar (petitioners in Criminal Writ Petition No. 247/02), it was a business transaction between two contractors and at any rate other than what has been scribed in the receipt "annexure C" the petitioner is not aware for what purpose the amount was borrowed by the said Unit Contractors; that assuming but without admitting that the money was allegedly passed on to Bakanna Naxalite gang by the Unit Contractors viz. M/s. Khawaja Moiddin and Kamlakar, the same can not amount to voluntary contribution or assistance rendered by the petitioner when there is nothing on record to infer that he had any knowledge that M/s. Bapu Reddy and Narendra Reddy were kidnapped by the gang of Naxalits. It is also urged by the petitioner that the Government is not able to control the Naxalite activities and if at all somebody is required to part with money in order to protect himself and submits to extortion by the Naxalites, same can not be construed as abetting the activities of the Naxalites and, therefore, no offence under section 3 (3) of POTA is made out. The petitioner, therefore, prays for quashing of registration of Crime No. 27/02 of Police Station, Sironcha, District Gadchiroli.