ACHYUT GOGOI and ANR. vs THE STATE OF ASSAM and ANR.

1.By this petition under Section 482 CrPC, the petitioners have prayed for quashing the FIR dated 15.02.2017 and the Sivasagar P.S. Case No.

124/2017 corresponding to GR Case No. 218/2017 u/s 379 IPC and Section 7 of the Essential Commodities Act.

The brief facts of the case which may be relevant for disposal of the instant petition may be stated thus : One Shri Srimanta Borah, Sub-Inspector

of Police lodged an FIR with the Sivasagar Police Station alleging, that on 15.02.2017, at about 11.40 am, on the basis of a secret information, he

conducted raid in the premises of a godown, situated at Dwarikapar and recovered approximately 800 litres of diesel oil kept in four drums and an oil

tanker bearing No. NL-04(D)/3797 containing approximately 12,000 litres of petroleum oil. The said tanker was carrying oil from Dimapur IOC depot

to various installation sites of the ONGC, Sivasagar. He seized 800 litres of diesel with the drums, the oil tanker and also a pump set and arrested one

Achyut Gogoi, manager of the said godown and some others. It was also stated in the said FIR, that in course of enquiry, it was revealed that the

godown belonged to Prabin Gohain, the petitioner herein, which was used for illegal storage of stolen oil from the IOC tanker since last one year. It

was further alleged in the FIR that the owner of the godown used to commit theft of diesel from the oil tanker with the help of manager Achyut Gogoi

as well as the driver of the tanker and others, which were stored illegally for the purpose of selling in the market. The enquiry further revealed that the

seized tanker bearing NL04/D/3797, which was carrying oil from Dimapur to ONGC, Sivasagar entered the godown on 13.2.17 in the evening and

after downloading oil, proceeded towards oil rig centre EV-2000-3/R.S.ER on 14.2.17. But having found difference in density of the oil, the rig in

charge returned the tanker without downloading. On the basis of the said FIR, police registered Sivasagar PS Case No. 124/2017 u/s 379 IPC read

with Section 7 of the Essential Commodities Act. It is this FIR in Sivasagar PS Case No. 124/17 corresponding to GR Case No. 218/2017 which is

sought to be quashed in the instant petition.

Learned Senior Counsel, Mr. N. Dutta appearing for the petitioners and learned Addl. P.P., Ms. S. Jahan for the State were heard.

Learned Senior Counsel, Mr. Dutta, referring to illustration 3 of paragraph 102 of the celebrated decision of the Apex Court in State of Haryana

VS. Bhajanlal, reported in 1992 Supp. (1) SCC 335 contended, that the evidence collected so far in support of the case during investigation along with

the FIR, do not disclose commission of the offence either u/s 379 IPC or under Section 7 of the Essential Commodities Act. Mr. Dutta contended that

though, the godown was alleged to be illegal one, in fact, the godown was not an illegal godown and it was legal godown owned by the petitioner under

the name and style “M/s P.B. Enterpriseâ€. It was also submitted that the oil tanker seized in the present case belonged to the petitioner No. 2,

who is a registered contractor for carrying bulk POL as per the work order issued by the Indian Oil Corporation Ltd. Learned Senior Counsel also

referred to certain documents, viz., Annexure-4 to the petition, being a work order in favour of M/s P.B. Enterprise for transportation of bulk POL by

the tanker, seized in the instant case, Annexure-5, the registration certificate of the godown, M/s P.B. Enterprise, belonging to the petitioner No. 2 and

the test report of the seized diesel from the premises of the petitioners, showing that the oil collected from the premises of the petitioner met the

standard of BS-III specification of HSD, indicating that there was adulteration of the petroleum oil. Learned counsel also submitted, by referring to

Section 7 of the Petroleum Act, 1934, that no license was required for transportation or storage of limited quantities of petroleum products of Class-B,

i.e. HSD or petroleum products Class-C. Mr. Dutta contended that 800 litres of diesel found in the four drums in possession of the petitioner was

within the limit prescribed by Section 7 of the Petroleum Act, 1934, for which no license was required and as such, no offence was committed by the

petitioners.

Assailing the registration of the case u/s 7 of the Essential Commodities Act. Learned Senior Counsel, Mr. Dutta submits that the FIR did not

disclose as to which control order was violated by the petitioners, as there was no material showing commission of offence u/s 7 of the E.C. Act. Mr.

Dutta submitted that in the face of all those documents referred to above, more particularly, the work order Annexure-4 showing that the seized

tanker belonged to the petitioner and he was an authorized transporter of the POL, Annexure- 5, the registration certificate of the godown as well as

Annexure â€" A, the test report, submitted by the quality control department of the IOC, showing that there was no adulteration in the petroleum

products, the allegation of theft made in the FIR cannot stand and therefore, the FIR as well the proceeding in the Sivasagar P.S. Case No. 124/17

deserves to be quashed.

Refuting the submission of the learned Sr. counsel for the petitioners, learned Addl. P.P., Ms. S. Jahan contended, that while exercising inherent

power to quash a criminal proceeding at the initial state, the High Court cannot look into the defence materials, nor can it scrutinize the veracity of the

allegations and the High Court has to go by the plain allegations made in the FIR. To buttress her submission, learned Addl. P.P. placed reliance on

the following decisions of the Apex Court :- Dinesh Bhai Chandu Bhai Patel and Ors.-VS- State of Gujarat (2018) Cr.L.R.(SC) 54.

In Dinesh Bhai Chandu Bhai Patel (supra), the Apex Court dealing with the scope of the inherent power for quashing the FIR and the criminal

proceeding at the stage of investigation held at para 30, 31 and 32 as under :-

The High Court, in our view, failed to see the extent of its jurisdiction, which it possesses to exercise while examining the legality of any FIR

complaining commission of several cognizable offences by accused persons. In order to examine as to whether the factual contents of the FIR

disclose any prima facie cognizable offences or not, the High Court cannot act like an investigating agency and nor can exercise the powers like an

appellate court. The question, in our opinion, was required to be examined keeping in view the contents of the FIR and prima facie material, if any,

requiring no proof.

At this stage, the High Court could not appreciate the evidence nor could draw its own inferences from the contents of the FIR and the material

relied on. It was more so when the material relied on was disputed by the complainants and vice-versa. In such a situation, it becomes the job of the

investigating authority at such stage to probe and then of the Court to examine the questions once the charge sheet is filed along with such material as

to how far and to what extent reliance can be placed on such material.

In our considered opinion, once the Court finds that the FIR does disclose prima facie commission of any cognizable offence, it should stay its hand

and allow the investigating machinery to step in to initiate the prove to unearth the crime in accordance with the procedure prescribed in the Code.

The submission of the learned counsel, Mr. Dutta, referring to the documents, as indicated above, which were also found to have been produced

before the investigating officer, that in view of those documents, the allegations of theft or the godown being illegally run by the petitioners cannot

stand, prima facie appears to be preponderous, inasmuch as, those documents tend to suggest that the tanker seized in the instant case belonged to the

petitioners and the petitioner also had license for the godown and that no license needed for transportation or storage of certain quantity of POL. The

question still remains alive, as to whether in the exercise of power u/s 482 CrPC, the High Court can embark upon a roving enquiry as to merit of the

allegations made in the FIR, more particularly, when the investigation is going on and it is yet to reach its logical conclusion. No doubt, the document

referred to by the learned counsel for the petitioners may have the potential to exonerate the petitioner from the allegations of running illegal godown

or the offence of theft as alleged against him, if on final consideration the materials relied by the petitioners stand. It is the function of the trial court to

scrutinize the materials relied by the accused petitioner in his defence once the report is submitted u/s 173 of the Code of Criminal Procedure by the

investigating agency after completing the investigation. High Court cannot usurp the power and function of the trial court/Magistrate. There was also

allegation in the FIR regarding commission of offence u/s 7 of the Essential Commodities Act. The contention of Mr. Dutta as regards the allegation

of committing offence u/s 7 of the E.C. Act, was that there was no material showing as to which control authority was violated. In my considered

view, this argument does not hold water, because of the settled principle that High Court, while exercising inherent power cannot scrutinize the

allegations to trace out whether offence alleged would ultimately be proved, or whether there were materials or evidence to prove the offence.

It is the settled principle of law, that while considering the matter of quashing an FIR or a complaint at the threshold, court has to go by the plain and

uncontroverted allegations made in the FIR or complaint. If the allegations made in the FIR taken at their face value and accepted in its entirety

makes out prima facie any offence, the High court should not exercise the inherent power to quash the proceeding.

Learned counsel, Mr. Dutta, as indicated above, relied on clause 3 to paragraph 102 of the judgment of the Apex Court in Bhajanlal’s case to

impress upon this Court that the evidence so far collected disclosing that no offence was committed, the proceeding should not be allowed to continue.

Let me reproduce the clause 3 of paragraph 102 of the Bajanlal case : -

“whether the uncontroverted allegation made in the FIR or complaint and the evidence collected in support of the same do not disclose the

commission of any offence and make out a case against the accused, the High Court should exercise the power u/s 482 CrPC.â€​

In the instant case, as indicated above, going by the allegations made in the FIR, it is difficult to hold that no offence at all was made out. The

purport of the clause-3 appears to be that when the FIR or the complaint and the evidence collected in support thereof do not make out or disclose

commission of any offence, the proceeding should be quashed. In the present case, though, the materials referred to by the petitioners, as indicated

above, if duly proved, may exonerate the petitioner from some of the allegations made in the FIR, but for that the FIR cannot be said to have not

disclosed any offence. This apart, as indicated above, the FIR does not contain only the allegation of theft, there are also allegation of other offence,

for which investigating agency should be given the freedom to go into the whole gamut of the allegations and to reach a conclusion. Therefore, this

Court is of the view, that pre-emption of the investigation at this stage, is likely to run counter to the basic object of the inherent power, i.e., securing

ends of justice.

The Apex Court in Dinesh Bhai Chandu Bhai Patel (supra) clearly held that once the court finds that the FIR does disclose prima facie any

cognizable offence, it should stay its hand and allow the investigation machinery to continue with the probe to unearth the crime in accordance with the

procedure prescribed in the Code.

Thus, having regard to the scope of interference with the criminal proceeding at the threshold in the exercise of power u/s 482 CrPC and the

allegations made in the FIR, as indicated above, and also that the investigation is yet to reach its logical conclusion, this Court is of the view, that the

investigating agency should be given the freedom to take the investigation to its logical conclusion.

One has to bear in mind that quashing of a criminal proceeding u/s 482 CrPC is not a routine procedure. The Apex Court has been sounding note

of caution time and again that the power to quash a criminal proceeding should be exercised in exceptional cases only to secure ends of justice or to

prevent the abuse of process of the court. It would suffice to quote here the paragraph 103 from Bhanjanlal's case, where the Apex Court observed

as under :-

“We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised sparingly and with

circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or

genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary

jurisdiction on the court to act according to its whim or caprice.â€​

Thus, upon consideration the allegations made in the FIR and having regard to the scope of interference with the criminal proceeding u/s 482 of

the CrPC at the threshold, as well as the ratio laid down by the Apex Court in Dinesh Bhai Chandu Bhai Patel's case, this Court is unable to concur

with the submission of the learned Sr. counsel, Mr. Dutta to quash the criminal proceeding in the instant case.

For the reason stated above, the instant criminal petition is found devoid of merit and dismissed accordingly.

Send back the LCR, if any.