Court No. - 49
Case :- APPLICATION U/S 482 No. - 26951 of 2018
Applicant :- Devnath Giri
Opposite Party :- State Of Up And Another Counsel for Applicant :- Swati Agrawal Counsel for Opposite Party :- G.A.
Hon'ble Saumitra Dayal Singh,J.
1. Supplementary affidavit filed today is taken on record.
2. Heard learned counsel for the applicant and learned A.G.A. for the State.
3. The present 482 Cr.P.C. application has been filed to quash the entire criminal proceedings of Criminal Case No.1255 of 2018 (State Vs. Devnath Giri), arising out of Case Crime No.
43 of 2018, under Section 3/7 Essential Commodities Act, 1955, Police Station-Kasimabad, District Ghazipur, pending in the court of Additional Chief Judicial Magistrate, Ghazipur.
4. Learned counsel for the applicant submits that the applicant is an old licensee since 1975 and other than the present prosecution there has been no earlier complaint against him. It is further submitted that the prosecution allegation of a valid inspection having been carried out at the place of business of the applicant is false in as much as the three independent witnesses in whose presence the said inspection is stated to have been carried out had furnished their affidavits to the District Magistrate concerned denying their presence at the time of the alleged inspection. Then it has been submitted that merely because the applicant could not produce the distribution register at the time of the alleged inspection, it cannot be said that the applicant had misappropriated the stocks of food grain found short. In this regard it has been further asserted that there is not a single complaint made by any of the villagers/ration card holders/beneficiary.
5. While the aforesaid arguments appear to be attractive in the first blush, however, this being a matter of criminal prosecution, a closer scrutiny would reveal that the present case does not warrant any interference at this stage.
6. The fact that there may have been no earlier complaint is extraneous to the specific allegation that has been levelled at present. As to the absence of any complaint by any villagers, in the first place such a factual assertion may not be immediately verified at this stage, then in any case in view of specific allegation of shortage of stock having been made in the FIR, the lack of any other independent complaint loses its relevance.
7. As to the absence of the distribution register, it is seen that it is largely undisputed at this stage that against 217 bags of wheat and 146 bags of rice that should have been found present in the stock of the applicant, there was a shortage of 47 bags of wheat and 16 bags of rice noted in the inspection. Therefore, prima- facie the ingredient of the offence alleged appear to be existing.
8. Moreover, the fact that certain affidavits may have been furnished before the District Magistrate concerned are also of little consequence in as much as admittedly the fair price shop licence of the applicant stood suspended on the same day when the FIR was lodged and though an appeal is claimed to have been filed by the applicant against the suspension order, there is no stay of the same till date. Therefore, the affidavits filed before the District Magistrate concerned which in the first place are not case diary material, do not appear to have been acted upon in the civil proceedings. In the circumstances, no interference warranted by this Court.
9. It is lastly stated by the counsel for the applicant presently bailable warrant has been issued against the applicant.
10. Having heard the learned counsel for the applicant and perused the materials brought on record, it does not appear to be a fit case to quash the impugned order. The prayer to quash the same is hereby refused, at this stage as the argument raised by learned counsel for the applicant involves factual disputes and appraisal of evidence.
11. However, looking at the nature of offence alleged and attending facts and circumstances of the case, as have been brought on record, it is directed that if the applicant appears and surrenders before the court below within 30 days from today and applies for bail, his prayer for bail shall be considered and decided in view of the settled law laid by this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgement passed by Hon'ble Supreme Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P.
12. For a period of 30 days from today, the bailable warrant issued against the applicant shall be kept in abeyance.
13. The present application stands disposed of.
Order Date :- 7.9.2018/VKG