Advocates:
['M P KHAJANCHI', 'APP', '', 'GOVERNMENT PLEADER', 'R-SOLE']

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR.

CRIMINAL WRIT PETITION NO. 534 OF 2019

1) Sagar s/o Vishwanath Khandre,

Aged about 74 years, Occ. - Business,

2) Vishal s/o Sagar Khandre,

Aged about 38 years, Occ. Business,

3) Sau. Sandhya w/o Sagar Khandre,

Aged about 65 years, Occ.- Business,

All Residents of B-9, Shrikrupa Building,

Shastri Nagar, Chandrapur, Tahsil and

District Chandrapur.

….

PETITIONERS

VERSUS

The State of Maharashtra,

through Police Station Officer,

Police Station, Rajura, Tahsil – Rajura,

District – Chandrapur.

…. RESPONDENT

______________________________________________________________

Mr. M.P. Khajanchi, Counsel for the petitioners,

Ms. Tajwar Khan, Addl.P.P. for the respondent.

______________________________________________________________

CORAM : ROHIT B. DEO, J.

DATED : 18

th JANUARY, 2021

ORAL JUDGMENT :

The petitioners are allegedly partners of Khandre Trading

Corporation which firm is an agent of Hindustan Petroleum (HP).

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2.

Mr. Vijaykumar Chavhan, Sub-Divisional Police Officer,

Gadchandur received secret information that Gopal Malpani is illegally

holding gas cylinders and is indulging in black marketing. Mr.

Vijaykumar Chavhan directed Mr. Khan, Assistant Police Inspector

attached with Police Station Gadchandur, to raid the business premises

of Gopal Malpani.

3.

Mr. Khan, alongwith panchas raided Malpani’s business

establishment which was located in a building situated in Ward 4,

Gadchandur, on the ground floor. The residential premises of Gopal

Malpani was situated on the first floor of the said building.

4.

Gopal Malpani’s shop was searched. Inter alia, 39 domestic gas

cylinders of HP, 28 empty domestic gas cylinders of HP, 4 commercial

gas cylinders of HP, one empty commercial gas cylinder of HP and 10

empty gas cylinders of the smaller size of HP were found stored in the

said shop. The rest of the articles were of the Indane Company, with

which the petitioners are not concerned.

5.

The Gadchandur police registered offences punishable under

Sections 3 and 7 of the Essential Commodities Act, 1955 (‘EC Act’ for

short) and Section 285 of the Indian Penal Code.

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6.

The investigating agency arraigned Gopal Malpani, the

petitioners herein and Ashok Kulmethe, the proprietor of Ballarshah

Indane Gan Agency as accused. Culmination of investigation resulted

in submission of final report under Section 173 of the Criminal

Procedure Code (‘Code’ for short).

7.

The petitioners herein preferred an application seeking discharge

(Exhibit 195 on the record of the trial Court). Discharge was sought on

the premise that the only incriminating material in the charge-sheet is

the statement of co-accused Gopal Malpani recorded under Section 27

of the Indian Evidence Act, which is inadmissible. In essence, the

contention in support of the discharge application was that even if the

entire material in the charge-sheet is holistically considered, there is no

admissible incriminatory material as would warrant a trial.

8.

The learned Magistrate rejected the application seeking

discharge, vide order dated 28-12-2017.

9.

The petitioners preferred Criminal Revision 17/2018 reiterating

that there was no material in the charge-sheet as would warrant a trial

and that the charge is groundless. An additional ground, which was

not raised before the learned Magistrate, was that neither the charge-

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sheet nor the order of the learned Magistrate reveals contravention of

any particular order.

10. The learned Sessions Judge dismissed the revision vide judgment

dated 15-3-2019.

11. The learned Sessions Judge noted that 151 commercial and

domestic gas cylinders were seized from accused Gopal Malpani. The

learned Sessions Judge further noted that the material in the charge-

sheet disclosed that the petitioners are dealer/supplier who hold the

statutory licence and supply gas cyli