Advocates:
['TARDE SAMBHAJI B', 'COPY SERVED ON P P', '', 'BHARASWADKAR K P']

Cri.W.P. 1318/2021

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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

Cri.W.P. 1318/2021

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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

Cri.W.P. 1318/2021

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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

Cri.W.P. 1318/2021

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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 th