(In the matter of application under Articles 226 and 227 of the Constitution of v. State of Orissa
Case Details
AFR HIGH COURT OF ORISSA, CUTTACK CRLMP No.1238 of 2018 (In the matter of application under Articles 226 and 227 of the Constitution of India) SmtGeeta Devi Agarwal and others … Petitioners Versus State of Orissa … Opposite Party For Petitioners : Mr. B.S. Tripathy, Advocate For Opposite Party : Mr.Karunakar Gaya, Additional Standing Counsel PRESENT THE HONOURABLE SHRI JUSTICE S.K. PANIGRAHI Date of Hearing: 09.02.2022 Date of judgment:18.02.2022 S. K. Panigrahi, J. 1. These petitions under Articles-226 and 227 of The Constitution of India have been filed with a prayer to quash the criminal proceedings emanating from Case No. 2 (C) CC No. 07 of 2011, for the alleged commission of offenses under Sections-4(1), 4(1A,)21(1) and 23 of the Mines and Minerals (Development & Regulation) Act, 1957 and Under Rules 3, 6, 12(3), 12(4) and 18 of the Orissa Minerals (Prevention of theft, Smuggling and illegal mining and Regulation of Possession, Storage, Trading and Transportation) Rules, 2007, which is pending in the Court of learned J.M.F.C, Kujanga. // 2 // 2. Shorn of unnecessary details, the facts of the present matter are as follows: i. In pursuance to the letter of The Mining Officer, Cuttack dated 02.12.2020, a truck bearing registration No. OR-05W-0779 was seized on 03.12.2010.The said truck belonged to Sri. Trupti Ranjan Das. The seizure was made on the ground of using fake transit passes for the transportation of iron ores from the stockyard at Manguli, Cuttack belonging to M/S Gananayak and Co, to M/S GNG Exports at Paradip Port. ii. Confiscation proceedings against the seized trucks were initiated vide C.P. Case No.69/2010, for the offence enumerated under the ambit of Sec. 23(C) of M&M(DR) Act.,1957.Another, FIR No. 5 dated-02.02.2011 was lodged on the strength of a complaint filed by DDM, Jajpur road at Paradip Marine Police Station, against
Legal Reasoning
Sri. Trupti Ranjan Das and M/S Gananayak and Co. iii. On verification of records by the State level Enforcement Squad and the Mining Squad of Mining office, Jajpur road and Mining office of Cuttack, it was found that the 125 fake transit passes out of Form-G books were used by M/S Gananayak and Co , for the illegal transportation of iron ore fines to the tune of 1842.640 MT valued at Rs.22,92,244/- (approx.).An F.I.R was lodged before the IIC, Tangi Police Station vide P.S. Case No.7/2011 against accused M/S Gananayak. & Co. and its Proprietor Sajan Kumar Joshi and Page 2 of 27 // 3 // Vivek Kumar Joshi, corresponding to G.R. Case No.60/2011, pending before learned SDJM(S), Cuttack. iv. A complaint case, 2(c) C.C. No.7/2011 was lodged in the Learned Court of JMFC (P), Kujang by the DDM, Jajpur road against Gajanan Agrawal (Dead) along with the petitioners No.1 to 3 , making them jointly and severally liable or the acts of Sri. Trupti Ranjan Das. The petitioners are the partners in the firm of M/S GNG Exports. The learned JMFC(P), Kujanga took cognizance of the offenses against the present petitioners U/s.21(c) of MMDR Act, and under Rule-18 of OM Rules, 2007 and issued Summons. In the said complaint case, it has been prayed to confiscate the6000 MT (approx) of iron ore fines stored at Paradip port of M/S GNG Exports. v. A brief background study of M/S GNG Exports reveals that, it is a registered firm based in West Bengal involved in exporting iron ore fines since 1993. From the year of 2008 they started exporting iron ore fines from the ports of Paradip, Odisha. They were granted the license for storing iron ore fines at Paradip port area vide License No. 13595. The validity of the said license was bracketed in the period between 06.12.2008 and 05.12.2010. An application for renewal was filed on 02.12.2010. However, it got rejected under Rule-6 of Orissa Mineral Rules, 2007, due to the non-production of mandatory information. Page 3 of 27 // 4 // 3. Learned Counsel for the petitioners Shri Bhabani Shankar Tripathy vehemently submits that the learned J.M.F.C, Kujanga, has taken cognizance of the complaint case 2(c) C.C. No.7/201 without verifying the genuineness of the allegation. The petitioner had moved this court on an earlier occasion vide WPCRL No.197/2011 for quashing the said complaint case, but the court was not inclined to interfere with the proceeding of the court below at that point in time since the investigation of the case was underway. However, the court had dismissed the petition with an observation to move the court at a subsequent stage of the proceeding. Further, the investigation is now complete and the charged sheet has already been submitted. It is clearly evinced out in the charge sheet that the transit passes were issued by M/S Gananayak and Co for the vehicle bearing Regd. No.OR-05W-0779, which belonged belonged to Sri Trupti Ranjan Das. Prima Facie evidence to bring in charges under Sections-420, 468, 471 and 34 of IPC, against the Sajjan Kumar Joshi, the proprietor of M/S Gananayak and Co. have been found. The charge sheet has been filed against Kumar Joshi, the proprietor of M/S Gananayak and Co. However, no incriminating evidence is found against the petitioners or M/S GNG Exports so as to sustain the complaint case. Furthermore, the Mining Officer, Cuttack had lodged an FIR before the lIC, Tangi Police , Cuttack in Tangi P.S. Case No.7/2011 dt.09.11.2010 corresponding to G.R. Case No.60/2011 pending before the court of learned SDJM(S), Cuttack, with specific allegations against M/s. Gananayak & Co. for Page 4 of 27 // 5 // forging 121 Transit Passes which were used for transporting Iron Ore Fines. The Deputy Director Mines, Jajpur Road had deliberately and willfully suppressed the aforesaid facts and filed the aforesaid case in furtherance of the motive to harass and humiliate the petitioners by arraying them in multiple criminal proceedings. Continuing with such proceedings will be nothing but the blatant abuse of the process of law. No case against M/S GNG Exports is made out since they were bona fide purchasers of iron ores from M/S Gananayak and Co., and were under the impression that the transit passes were valid and not forged. Moreover, as the exporter M/S GNG Exporters had very little means of determining the genuineness of the transit passes. 4. Learned Counsel for petitioners also submitted that the complaint case suffers from technical laches. He placed reliance on the case of Neelu Chopra vs. Bharati1, wherein the Hon’ble apex court held that : “ 5.In order to lodge a proper complaint, mere mention of the sections and the language of those sections is not be all and end of the matter. What is required to be brought to the notice of the court is the particulars of the offence committed by each and every accused and the role played by each and every accused in committing of that offence.”. Again, in the case of Asoke Basak V. Maharastra2, the Hon’ble Supreme court observed that, it would be difficult to hold that a complaint, even ex facie, discloses the commission of an offence by the accused in the absence of any specific averment demonstrating the role of the accused. Perusal of the make complaint would it crystal clear that the allegations made in the