Court No. - 49
Case :- APPLICATION U/S 482 No. - 15170 of 2020
Applicant :- Smt. Kavita And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Raghuvansh Misra Counsel for Opposite Party :- G.A.
Hon'ble Vivek Agarwal,J.
1. Heard Sri Raghuvansh Mishra, learned counsel for applicants and Sri Gambhir Singh, learned AGA for the State.
2. This application under Section 482 Cr.P.C. has been filed seeking the quashing of the chargesheet dated 24.03.2018 in Case No. 1242 of 2018 (State vs. Kavita and Another) under Sections 3/7 of Essential Commodities Act, 1955, Police Station-Nagal, District-Shaharanpur.
3. Learned counsel for applicants submits that admittedly, applicants are husband and wife. A Fair Price Shop has been allotted in the name of applicant no. 1, affairs of which are admittedly looked after by applicant no. 2 from time to time. It is submitted that applicants are not only claiming quashing of the chargesheet, but also order dated 16.11.2019 by which, non- bailable warrants have been issued against the applicants, on the ground that they were allotted a Fair Price Shop, in which, an inspection was carried out on 27.10.2017 in a matter where complaint was made on 11.10.2017, for which, Case Crime No. 373 of 2017 was registered on 03.11.2017 on a complaint made by Saurabh Kumar Goswami, Supply Inspector, Deoband.
4. It is submitted that allegations against the applicant is that during inspection, 159 rashan cards, which were forged or were pertaining to deceased persons or non-residents, were found in the Fair Price Shop, on the basis of which, subsidized foodgrain material and kerosene oil was distributed to ineligible persons.
5. Learned counsel for applicant submits that she had moved an application on 26.08.2017 before the Sub-Divisional Magistrate, Deoband, requesting him to refund her advance deposited with the State towards the cost of the material to be lifted, as her husband was ill and prayed for leave for two months, so that she may get her husband treated. In support, she has enclosed a medical illness certificate dated 01.09.2017, showing her husband to be suffering from enteric fever with B.T. malaria with effect from 26.08.2017 till date. It is submitted that thereafter, S.D.M. vide order dated 21.09.2017, permitted the applicant's leave for one month and attached the applicant's shop with that of one Smt. Monika of Village- Pathori Bakkal. Placing reliance on this document, filed along with supplementary affidavit dated 02.06.2021 as Annexure- SA1, it is submitted that applicants were on leave for a period of two months and therefore, on the date of the surprise inspection, applicant were not running the Fair Price Shop, therefore, no adverse inference can be drawn against them.
6. Applicant has also enclosed 'Khaddan Nirgaman Tak Patti' dated 25.09.2017 and 26.10.2017 to demonstrate that material was purchased and distributed by Smt. Monika and not by the applicants. Reliance is placed on Para-7 of the Circular No. 4/2019/1206/29-6-29-300 सस/03 टट.सट. dated 05th August, 2019, issued by 'Khadyan Evam Rashad Aubhag-6', to demonstrate that in Para-7 of this Circular, there is a provision for sanction of leave upto one month and during that period of leave, attaching of the Fair Price Shop to a nearby linked shop or its operation to be carried out through an authorised assistant. Reading this Circular, it is submitted that in terms of this Circular, since leave was granted to the applicants, therefore, no adverse inference can be drawn against them and thus, proceedings including chargesheet as well as non-bailable warrants, be quashed.
7. Learned AGA, in his turn, submits that applicant, after filing of the petition, has submitted as many as three supplementary affidavits. First supplementary affidavit was filed on 09.06.2021, enclosing therewith order passed by S.D.O., Deoband and copy of 'Tak Patti Pushtika'. Second one was filed on 26.06.2021, enclosing therewith copy of statements of witnesses and copy of affidavit. Third one was filed on 16.07.2021 again enclosing copy of statements of witnesses and copy of affidavits, as were filed along with the earlier affidavit, filed on 26.06.2021. It is further submitted that applicant again filed some documents on 16.07.2021, as were filed by him earlier on 09.06.2021. It is pointed out that affidavit dated 09.06.2021, does not bear any seal of a Notary Public or Oath Commissioner, authorised to authenticate the affidavit. Similarly, supplementary affidavit dated 26.06.2021 too does not bear any seal of the Notary Public. Even, affidavit dated 16.07.2021 also does not bear any seal or signature of the deponent. It is further pointed out that neither any date has been given on which applicants had resumed the work of their Fair Price Shop or any other document to show that their leave of absence was extended by the competent authority even after 21.10.2017, inasmuch as, leave was sanctioned only for a period of one month vide order dated 21.09.2017 whereas inspection had taken on 27.10.2017 and FIR was lodged on 03.11.2017.
8. Pointing out these inaccuracies and also the fact that applicant has not produced any document on record to demonstrate, as to from where they obtained 'Tak Patti Pushtika', a document which is issued by the 'Kendra Prabhari' S.M.I./M.I, it is pointed out that at the stage of filing of the chargesheet, none of these materials are required to be examined.
9. After hearing learned counsel for the parties and going through the record, it is evident that Circular dated 05th August, 2019, has no retrospective application, therefore, applicants reliance on a Government Circular of 05th August, 2019, is misplaced. Secondly, as is evident from the document annexed as Annexure-SA1, an order passed by the S.D.M., Deoband that leave was sanctioned only for a period of one month, which came to an end on 21.10.2017. Therefore, onus is on the applicants to demonstrates that either their leave was extended or their shop was suspended, but this burden has not been discharged by the applicants. Thirdly, law in regard to quashing of the chargesheet is crystal clear in case of State of Haryana and Others vs. Bhajan Lal and Others, 1992 Supl. (1) SCC 335 as well as in case of International Advanced Research Centre For Powder Matallurgy and New Materials (ARCI) and others Vs. Nimra Cerglass Technic Private Limited and another, (2016) 1 SCC 348. It is also settled position that at the stage of summoning, defence of the accused cannot be looked into and therefore, affidavits filed by the applicants as Annexure-SA2 twice along with two different affidavits are of no use to the applicants. Applicants have failed to make out any case for quashing of the chargesheet, as they have filed to prove either malafide or existence of any of the grounds enumerated in Para-102 of the judgment in Bhajan Lal and Others (supra).
10. As far as issuance of non-bailable warrants are concerned, it is evident that cognizance was taken against the applicants on 17.05.2018 despite issuance of summons, they were absent on 03.07.2018, 17.09.2018, 28.11.2018, 18.03.2019, 28.05.2019, 19.07.2019. When on each of the last three dates, summons were issued and then on 27.09.2019 when again summons were issued for 16.11.2019 and thereafter, non-bailable warrants have been issued on 16.11.2019, which cannot be faulted with. In fact, applicants having knowledge of the facts of the case, has chosen to either not to appear before the court below seeking cancellation of non-bailable warrants nor has appeared to argue on discharge application, but has directly approached this court.
11. Firstly, defence, as raised by the applicants, is prima facie not made out in the case, inasmuch as, applicants, as has been mentioned above, has failed to make out a case for quashing of the chargesheet. Secondly, non-bailable warrants have been issued due to continuous absence of the applicant before the court below and as applicant had failed to make out a case as to how several forged, expired or invalid rashan cards were found in their possession, for the present I am of the opinion that no ground is made out to quash the proceedings in exercise of inherent jurisdiction of this Court. In case of Taramani Parakh vs. State of M.P. and Others; (2015) 11 SCC 260, it is held by the Supreme Court that if reading of the complaint, it cannot be said that if the allegations are taken as proof, no case is made out, then High Court should not exercise its inherent powers to quash the proceedings. Applicants have failed to substantiate that allegations are vague, then there is no ground for quashing of the chargesheet and the subsequent proceedings as it is matter of trial where parties will be free to adduce evidence as to whether applicants were running Fair Price Shop on the said date or the shop was still attached with some other agency. Therefore, petition fails and is dismissed.
Order Date :- 30.7.2021 Vikram/-A