Judgment:
JUDGMENT [PER A.H.JOSHI, J.]:-
1. Rule. Rule is made returnable forthwith, with the consent of parties.
2. Heard learned counsel for the respective parties.
3. By these petitions, the petitioners have challenged F.I.R. Crime No.I-81, No.I-80, No.I-83, No.I-79, No.I-82, No.I-84 and I-66 of 2011 registered with Gondi Police Station in district Jalna.
4. The prayer for quashing is based on various grounds.
5. The facts which are the basis of the petition are summarised as follows:
(a) The petitioner, is a contractor, who has secured the contract for lifting minor mineral-sand from the river-bed of Godawari, had assigned the transit permit for lifting and taking away the sand.
(b) The motor vehicles carrying the sand were suspected to carry sand in excess of the volume in terms of cubic meters than mentioned in the transport permit.
(c) In order to crystalise fact from the suspicion, the prosecuting authorities got the weighment of the vehicles done and found that the weight of sand contained in the vehicles in terms of kilograms, was in excess of the volume in terms of cubic meters mentioned in the transport permit.
(d) Allotment of sand is on the basis of volume in cubic meters and lifting is also to be done on volume component. The sand which was being transported was liable to be measured by reckoning exact volume, but was speculated on the basis of weight in terms of kilograms.
(e) In the process of investigation, the charge sheet has been filed in most of the cases accusing the applicant of the offence of theft etc. The vehicles carrying the sand have been released on bond.
6. We had queried the Investigating Officer about quotient, if any for converting weight into volume in terms of cubic meters.
7. The Investigating Officer has filed affidavit answering the query and has stated that it is not possible to arrive at the figure of exact volume in terms of cubic meters of sand taken by the accused persons, based on measurement of weight.
8. Due to release of motor vehicles carrying the sand, at present no evidence is available with the prosecution for enabling the investigating agency to measure the volume of the sand which was suspected to be in excess of the permit. Thus, the evidence as regards excess volume has ceased to exist due to act of accused in applying for return of property, and the order of release thereof.
9. Now it is obvious that it is impossible by use and aid of any known process to prove the imputation that excess volume of sand, in terms of cubic meters was taken by the accused. More over, it is admitted by the prosecution that no parameter or quotient is available for arriving at exact volume in terms of cubic meters by converting from the weight of the sand found in the vehicle.
10. In the result, it is obvious that the conclusion of trial emerging from the F.I.Rs. subject matter is bound to lead to acquittal. Every further exercise in the process of trial would be futility. We therefore see no reason to permit the F.I.Rs. and all further processes to remain on record.
11. We cannot part with this judgment without recording our concern about the casual manner in which the revenue authorities as well as Police Officer are dealing with the serious matter pertaining to smuggling/theft/illegal extraction of sand.
12. On one hand, the valuable resources of sand is being eroded exploitatively as well State Treasury is robbed. The State Government, therefore, should consider the aspect as to the remedial measures required to be taken by the State for reconsidering the manner and procedure to be adopted for measuring the sand at the time of sale by use of volume of sand in terms of cubic meters of sand. The State may have to permit due allowance i.e. percentage such as 5 to 10%, for variation in the weight due to humidity, and the sand may have to be sold on weighment basis i.e. tonnage.
13. The sale of sand by use of volume as basis leaves innumerable and voluminous loopholes. We hope and expect that the State Government should take measures, to overcome these loopholes urgently. We hope and expect that this exercise would be done expeditiously.
14. We, therefore, consider that this aspect should be brought to the notice of the Additional Chief Secretary, Revenue & Forest Department (Revenue) and he should issue appropriate direction in order to avoid further smuggling/theft etc. of the sand.
15. We direct learned Public Prosecutor to transmit copy of this order to the Principal Secretary, Home Department to enable the concerned to take suitable action corresponding to the actions by Revenue Department.
16. We, therefore, quash the F.I.R. and other proceedings furtherance thereto in terms of prayer clause (B) in all petitions. Rule is made absolute accordingly. [A. M. THIPSAY, J.] [A. H. JOSHI, J.] Dated:25/11/2011.
CRIMINAL WRIT PETITION NOS.:493, 494, 495, 496, 497, 498 and 501 : OF 2011
Date of decision: 25th NOVEMBER, 2011. For approval and signature
THE HONOURABLE SHRI JUSTICE
A. H. JOSHI
THE HONOURABLE SHRI JUSTICE
A. M. THIPSAY.
Whether Reporters of local papers ... Yes may be allowed to see the judgment? To be referred to the Reporter or not? ... Yes Whether Their Lordships wish to see ... No fair copy of the judgment?
Whether this case involves a substantial... No question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder?
Whether it is to be circulated to the ... No Civil Judges?
Whether the case involves an important ... Yes question of law and whether a copy of the judgment should be sent to Nagpur, Goa and Bombay offices?