MOHAN T. KHANDELWAL Vs. STATE

JUDGEMENT

(1.) THIS is an application under Section 438 Criminal Procedure Code. Few facts may be stated thus:

(2.) POLICE had received secret information that the accused who holds a licence for storing of kerosene has illegally stored large quantity of blue kerosene at the dhaba and godown which is owned by him. Police had also received an information that the applicant accused sells the kerosene in black market to the owners and drivers of the truck, autorikhaw for being mixed in the petrol and diesel. Upon such information having been received Police Inspector Dhopkar along with policemen carried out raid at the dhaba. It is alleged that at the time of raid 4900 Kilolitres and 25 Kilo Lts kerosene was found stored in the barrels, plastic cans and bottles etc. It was immediately seized on the spot. It is alleged that sons of the present applicant who were present there ran away from the spot. P.I. Dhopkar seized those articles on the spot and lodged the report. Offence under Section 3 read with Section 7 of the Essential Commodities Act has been registered against the present applicant. He, therefore, apprehends arrest. I have heard the learned counsel for the applicant and the State. Learned counsel for the applicant contended that the raid that is carried out by Dhopkar is itself in contravention of the notification issued by the Government of Maharashtra. He submitted that the investigation has been handed over to P. S. I. Chavhan as can be seen from the contents of the F. I. R. and, therefore, accused should in fact be released on bail. He relied on a decision of this Court in Laxmikant Shankarlal Sarda Vs. State of Maharashtra and another 2002(2) Maharashtra Law Journal 471. This Court has held that if a raid is carried by a person who is below the rank of P. I. the said raid is illegal and therefore there should be no difficulty in granting anticipatory bail to the accused in such cases. Ratio of this case cannot be applied to the case at hand. The simple reason is that the raid was carried out by an officer of a rank of P. I. and he has seized the entire articles and had lodged the report. Therefore, it is obvious that the entire raid was carried out by a person of a rank of Police Officer and in no case therefore raid that was carried out by the P. I. can said to be illegal. Case of Laxmikant has no bearing on the case at hand. Learned counsel submitted that the applicant holds a licence and therefore in no case it could be said that he has illegally stored the kerosene. There is primafacie no evidence that the applicant has however sold the kerosene to anybody. It may be mentioned here that the affidavit filed by the prosecution clearly goes to show that applicant was entitled to store 1060 Kilolitre but the quantity of 4900 kilolitre was found which is much larger than what is permitted to be stored. Further it is brought to my notice by the learned counsel that the licence that has been granted to the applicant was in respect of some different premises and this particular kerosene was found at a place for which there was no licence. It is submitted that kerosene can be stored only at a place for which licence has been granted. Obviously in this particular case the licence was not for storing kerosene in dhaba or godown near dhaba.

(3.) SESSIONS Judge dealing with the regular bail may not be influenced by what has been observed and he may arrive at his own conclusion.