IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.1318 OF 2021 Shahid s/o Ismail Shaikh Age 37 years, Occu. Business, R/o Gandharvnagari, Moshi, Tq. Haveli, Dist. Pune … PETITIONER VERSUS

1. The State of Maharashtra, through M.I.D.C. Police Station, Ahmednagar (Copy to be served on Public Prosecutor, High Court of Judicature of Bombay, Bench at Aurangabad)

2. Gorakh s/o Maruti Valve, Age 53 years, Occu. Service, R/o Sarola Kasar, Tq. Nagar, Dist. Ahmednagar. … RESPONDENTS .......

Mr. S.B. Tarde, Advocate for petitioner Mr. S.P. Sonpawale, A.P.P. for respondent No.1.

Mr. K.P. Bharaswarkar, Advocate for respondent No.2 ....…

CORAM : R. G. AVACHAT, J.

Date of reserving order : 24th February, 2022 Date of pronouncing order : 23rd August, 2022 O R D E R :

The challenge in this Criminal Writ Petition is to the order dated 4/10/2021, passed by learned Additional Sessions Judge, Ahmednagar on application Exh.60 in Sessions Case No.84/2020. The petitioner herein had moved the said application for discharge. The learned Additional Sessions Judge has rejected the same. Hence the present Criminal Writ Petition.

2. A crime vide C.R. No.713/2019 was registered with M.I.D.C. Police Station, Ahmednagar for offence punishable under Sections 396, 120(B), 341, 412, 201 of the Indian Penal Code. On investigation of the crime, the charge sheet came to be filed. The learned Judicial Magistrate, First Class committed the case to the Court of Sessions. It is the case of the prosecution that, accused No.1 to 6 committed dacoity with murder. A truck carrying 1000 gunny bags containing milk powder manufactured by “Sonai Indapur Doodh Dairy and Milk Powder Ltd.” was intercepted by accused No.1 to 6. The driver of the truck was murdered. The 1000 bags of milk powder were sold to the present applicant. Accused No.1 Dilip made a statement, disclosing to have sold 1000 bags of milk powder to the applicant herein. He led the investigating officer to the godown of the applicant, wherefrom 1000 bags containing milk powder of a particular description “Sonai Indapur Doodh Dairy and Milk Powder Ltd.” came to be seized. The applicant, therefore, has been made accused in the case.

3. The learned counsel for the petitioner would submit that, the petitioner has been falsely implicated. All the papers of investigation would indicate the petitioner to have not played any role in the crime in question. There is not a single witness to state anything incriminating against the petitioner. It was only pursuant to the statement made by co- accused the petitioner came to be roped in. Statement of co- accused is inadmissible in evidence. The recovery panchanama made pursuant to the disclosure statement by accused Dilip does not bear the petitioner’s signature. The same indicates the petitioner was not present when it was drawn and seizure was made. There is no material to indicate the petitioner was in possession or control of the godown premises wherefrom the milk powder came to be seized. According to learned counsel, the trial Court has overlooked this aspect of the matter. The learned counsel has relied on the judgment of this Court in case of Ramesh Lilaram Lohana Vs. The Sr. Police Inspector & Anr. reported in 2020 ALL MR (Cri) 2305.

4. The learned A.P.P. would, on the other hand, submit that, there is material to indicate the petitioner’s prima facie involvement in the offence in question. The learned Additional Sessions Judge has rightly rejected the application. According to learned A.P.P., no interference with the order impugned herein is warranted.

5. Chapter XVIII of the Code of Criminal Procedure speaks of trial before the Court of Sessions. Section 227 thereof reads thus :

"227. Discharge :- If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding agai