S.W. Puranik, J.
1. The applicant in Criminal Application No. 224 of 1981 is accused with the offence under section 7(3) of Essential Commodities Act read with Clauses 8 and 15 of the Maharashtra Cement (Licensing and Control) Order, 1973 of the State of Maharashtra. The prosecution alleges that on 19-3-1980, the Police Investigating Officer of Lakadganj Police Station, Nagpur got information that the applicant accused is in wrongful possession of cement stock in contravention of the provisions of the Maharashtra Cement (Licensing and Control) Order, 1973, hereinafter referred to as the 'Cement Control Order' for the sake of brevity, and therefore, an offence is committed by the applicant under the Essential Commodities Act. The Investigating Officer, therefore, conducted a raid on one room which the applicant had taken on rent from on Nilkanth for stocking the cement. The raid was conducted in the presence of Panchas and it was found that 741/2 bags of cement were lying there in the name of the accused.
2. The applicant accused was also interrogated by the Investigating Officer. He informed the Investigating Officer that he had secured a valid permit for the cement quota for construction of his own house and the said 741/2 bags of cement was the balance out of the same cement quota allotted to him.
3. The Investigating Officer also recorded the statements of Nilkanth in whose room the said stock was found. Nilkanth disclosed that the applicant-accused had taken a room from his premises on rent to stock the cement. He also informed that the said cement was being utilised for the construction of the applicant's house which was still incomplete.
4. The applicant-accused also handed over the receipts of purchase of the said cement stock from authorised dealers. The Investigating Officer, however, completed the investigation at this stage and filed the charge-sheet in question.
5. The applicant-accused contends that the entire criminal proceedings started against him vide Crime No. 587/81 under section 7(3) of Essential commodities Act by the Police Station, Lakadganj are liable to be quashed as it amounts to abuse of process of law. He also contended that no offence is disclosed even admitting all the investigation, papers and documents as correct. Shri R.D. Chaudhari, the learned Counsel for the applicant pointed out that the provisions of Clauses 8 and 15 of Cement Control Order have not been contravened by the applicant at all and as such the proceedings are liable to be quashed.
6. Shri Garud, Assistant Government Pleader for State contested the say of the applicant and pointed out that the applicant has reproduced Clauses 8 and 15 of the Cement Control Order but has not referred to the amended Clause 8. He also pointed out to the general conditions of the permit which say that after the completion of the construction of the house, the applicant is duty bound to report to the Licensing Authority about the same and hen is also duty bound to report whether he has any balance of cement bags in stock and further that in case such balance is left over, the same is liable to be transferred at the instance of the Licensing Authority. Shri Garud also submitted that on interrogation from the accused, the Investigating Officer learnt that the construction of the house of the applicant was completed in 1978, and therefore, he ought to have reported this matter to the Licensing Authorities within 3 months thereof. Shri Garud contended that the applicant has prima facie contravened the provisions of Cement Control Order and hence liable for prosecution.
7. With the assistance of the Counsel for both parties, this Court was persuaded to go through the first information report and the police statement of Nilkanth recorded during investigation. Shri Nilkanth is an independent person on whom the prosecution relies. He states in his statement that the construction of the house of the applicant is still incomplete and the cement bags are being utilised for the said construction. Shri Garud led emphasis on the first information report wherein the Investigating Officer says that the accused informed him that the stock is out of the stock used for the construction of the house in 1978. In my opinion, this allegation in the first information report made by the Investigating Officer cannot be made use of at this stage. The Investigating Officer must collect independent material to show that the construction is in fact complete and that the applicant/accused had defaulted in not reporting the completion of work and holding of balance stock in his custody. No such material has been collected. It is also seen that the applicant-accused had handed over all the purchase receipts of the said cement from authorised cement dealers. The Investigating Officer has not carried out any investigation to find out whether the said receipts are bona fide; whether the said receipts are from authorised cement dealers and whether the construction work for which the cement was released was incomplete or complete. In the light of these circumstances no offence can be said to have been prima facie brought to the notice of the Court under Clauses 8 and 15 of the Cement Control Order and hence the proceedings are not liable to be proceeded on the basis of such a charge-sheet. Hence the following order.
8. Criminal Application No. 224 of 1981 is allowed. The criminal proceedings started against the applicant/accused before J.M.F.C. 3rd Court, Nagpur, in Criminal Case No. 587/81 State v. Santdas are hereby quashed. The applicant be discharged from the said proceedings forthwith.
9. Criminal Revision Application No. 81/81 preferred by the applicant was regarding his prayer for exemption from personal appearance. Since Criminal Application No. 224/81 is allowed and the proceedings are quashed the revision does not survive and is disposed of without any order. His bail, bonds shall stand discharged. Cash security if deposited be released to the applicant.