# Anshu @ Dilip Kumar & others v. State of U.P. and another

- **Citation:** (2010) 1 ILRA 360
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-04-26
- **Case number:** Application U/S 482 No. 5734 of 2010
- **Bench:** Yogendra Kumar Sangal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anshu-dilip-kumar-others-v-state-of-u-p-and-another-41482
- **Pages:** 5

## Headnote

Code
of
Criminal
Procedure-Section
482:-offence under Section 3/7 Essential
Commodities Act-bags of wheat while
1 All] Anshu @ Dilip Kumar and others V. State of U.P. and another
361
unloaded from Truck and loaded in
Tractor-157 Bags showing marks of APL
-indicates government goods-prayer for
quashing
charge-sheet
rejected-those
goods whether belongs to government or
applicate shall be subject to trail-but by
efflux of time considering permissibility
Magistrate
ought
to
have
make
arrangement in view of law laid down
Sunder Bhai Ambalal's case-application
disposed with consequential direction.

Held: Para 9

In these circumstances of the case,
taking into consideration the arguments
of parties counsel and facts of the case,
if an application of the applicants to
release the Wheat in their favour is
rejected by the trial court, there is no
illegality, invalidity and impropriety in
the orders. However, it is correct that
Wheat in the Bags is a perishable item
and some arrangements should have
been made by the trial court either by
selling the same in the open market or
by selling the same on the Government
shops and the money collected may be
deposited in the court concerned or with
the authority concern, subject to the
result
of
the
case
but
no
such
arrangements was made neither by the
trial court nor by the authorities who
seized the Wheat and kept it in the Godown of Mandi Samiti. Possibility cannot
be ruled out that by lapse of time, it may
perish. Learned counsel for the applicant
cited law 2003 (46) ACC 223 Sundar Bhai
Ambalal vs. State of Gujarat and 2008
(1) ADJ 321 Virendra Vs. State. Hon'ble
Supreme Court and this Court have given
directions about the disposal of such
type of items during pendency of the
case. It will be appropriate for the trial
court to pass necessary orders in the
light of law laid down above by the
courts
referred
above.
Learned
Magistrate
may
also
direct
the
authorities of the district concerned for
disposal of the seized Wheat according
to law and the price received be
deposited in the Court or with some
Government authority subject to the
result of the matter. Empty bags will be
kept in safe custody so that they may be
produced in the Court.
Case law discussed:
2003 (46) ACC 223, 2008 (1) ADJ 321.

## Text

360 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
the Constitution of India provides for
dispensation of inquiry in case a finding is
recorded by the disciplinary authority that
it is not possible and feasible to have an
inquiry in the circumstances of the case.
The similar provision is under the Police
Regulation which provides dispensation
of the inquiry against a person what
satisfaction has to be recorded in the
impugned order.

7. In 2008 (7) ADJ 4 Ramveer
Singh Vs. State of U.P. And Others, this
Court has taken a view in the similar fact
and circumstances that in case at the time
of appointment a caste certificate has been
filed and subsequently it was found that
the petitioner does not belong to said
caste in that circumstances without
holding a full fledged inquiry the
appointment / selection of a person cannot
be cancelled. In view of the matter the
alleged act or conduct of the petitioner
was of at the time of his appointment
while entering into services, therefore, the
same would not constitute misconduct
during the service as such order of
dismissal for alleged misconduct could
not be passed against him. In my opinion,
this submission made by the learned
counsel for the petitioner have got
substance and deserves to be accepted. I
am of the considered view that the alleged
conduct of the petitioner while entering
into service cannot be alleged to be
misconduct during service. In service law
jurisprudence both the stages are quite
distinct and distinguishable, therefore,
they should not be intermixed otherwise it
will cause serious repercussion in the
service law jurisprudence. Further, I have
a doubt in the mind that whether such
illegal appointment as alleged by the
respondent on the basis of alleged forged
certificate could be cancelled after long
lapse of 15 years from the date of
appointment of the petitioner. Further it is
admitted case of the parties that the
petitioner has not been afforded any
opportunity before passing the order
impugned dismissing the petitioner from
service.

8. In view of aforesaid fact, I am of
the view that the order impugned dated
22.02.2008 cannot be sustained and the
same is hereby quashed. In the result the
writ
petition
is
allowed,
and
the
respondents are directed to reinstate the
petitioner with all the benefits of service
with full salary as well as seniority from
the date of dismissal till the date of
reinstatement. Further, it is provided that
the respondents will pay arrears of salary
to the petitioner within two months from
the date of production of certified copy of
the order.
No order as to costs.
----------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.04.2010

BEFORE
THE HON'BLE YOGENDRA KUMAR SANGAL, J.

Application U/S 482 No. 5734 of 2010

Anshu @ Dilip Kumar & others ...Applicants
Versus
State of U.P. and another ...Opposite Party

Counsel for the Applicant:
Sri S.P. Giri

Counsel for the Opposite Party:
G. A.

Code
of
Criminal
Procedure-Section
482:-offence under Section 3/7 Essential
Commodities Act-bags of wheat while
1 All] Anshu @ Dilip Kumar and others V. State of U.P. and another
361
unloaded from Truck and loaded in
Tractor-157 Bags showing marks of APL
-indicates government goods-prayer for
quashing
charge-sheet
rejected-those
goods whether belongs to government or
applicate shall be subject to trail-but by
efflux of time considering permissibility
Magistrate
ought
to
have
make
arrangement in view of law laid down
Sunder Bhai Ambalal's case-application
disposed with consequential direction.

Held: Para 9

In these circumstances of the case,
taking into consideration the arguments
of parties counsel and facts of the case,
if an application of the applicants to
release the Wheat in their favour is
rejected by the trial court, there is no
illegality, invalidity and impropriety in
the orders. However, it is correct that
Wheat in the Bags is a perishable item
and some arrangements should have
been made by the trial court either by
selling the same in the open market or
by selling the same on the Government
shops and the money collected may be
deposited in the court concerned or with
the authority concern, subject to the
result
of
the
case
but
no
such
arrangements was made neither by the
trial court nor by the authorities who
seized the Wheat and kept it in the Godown of Mandi Samiti. Possibility cannot
be ruled out that by lapse of time, it may
perish. Learned counsel for the applicant
cited law 2003 (46) ACC 223 Sundar Bhai
Ambalal vs. State of Gujarat and 2008
(1) ADJ 321 Virendra Vs. State. Hon'ble
Supreme Court and this Court have given
directions about the disposal of such
type of items during pendency of the
case. It will be appropriate for the trial
court to pass necessary orders in the
light of law laid down above by the
courts
referred
above.
Learned
Magistrate
may
also
direct
the
authorities of the district concerned for
disposal of the seized Wheat according
to law and the price received be
deposited in the Court or with some
Government authority subject to the
result of the matter. Empty bags will be
kept in safe custody so that they may be
produced in the Court.
Case law discussed:
2003 (46) ACC 223, 2008 (1) ADJ 321.

(Delivered by Hon'ble Yogendra Kumar
Sangal, J.)

1. This is an application under
Section 482 Cr.P.C. to quash the order
dated 27.01.2010 passed by ACJM,
Anoopshahar, district Bulandsahar and
charge-sheet submitted in the trial court in
Case Crime No. 422 of 2009 under
Section 3/7 Essential Commodities Act,
P.S. Dibai, district Bulandsahar and also
prayed to pass an appropriate order for
releasing the Wheat seized by the
authorities in favour of the applicants
against the deposit the appropriate wheat
amount subject to the decision of the case.

2. Heard learned counsel for the
applicants learned AGA for the State and
perused the record.

3. As per prosecution case, on the
information of the informant a Raid was
arranged by the authorities of the State
Government in company of the Police
Persons and they found that on the Road
in front of the Bus Stand, two vehicles
Tractor Trolly and Mini Truck loaded
with Bags were standing there. Informant
towards that and moved the place. Both
the vehicles were checked. In the Mini
Truck No. UP81 Y9804, two persons
Shashi Kumar and Ompal were sitting and
on inquiry they gave their names and
address. On further inquiry, they stated
that Bags containing Wheat are loaded in
the Truck but they failed to give the
detail, to whom these Bags belong. 11
Bags containing Wheat were there and on
the Bags APL mark (above poverty line)
362 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
was affixed which was a Government
property. On the other Vehicle i.e. Tractor
Trolly, two other persons Manoj Kumar
and Anshu were seated and they also
given their names and addresses and on
inquiry they stated that Wheat is there in
the Bags loaded in the Trolly. These bags
were in No. 157 and on the bags mark
APL as above was affixed showing that
those were also Government Property. All
the four persons failed to give detail from
where they bring the Wheat. They were
taken into custody the vehicles and Wheat
bags were seized and brought at Mandi,
Dibai where the Wheat was given in the
Supurdagi of Incharge of Mandi Samiti
and memo was prepared accordingly.
Accused and vehicle brought at police
station and report was lodged against
them. Accused persons get them released
on bail. After investigation, charge-sheet
was submitted against them for their trial.

4. Three separate applications were
moved by Anshu alias Dilip Kumar, Dhan
Singh and Mahendra Singh claiming that
Wheat belongs to them and prayed to
release the Wheat in their favour. Anshu
claimed 16 bags his own and Dhan Singh
claimed 67 Bags and rest bags were said
by the applicant Mahendra Singh. After
giving opportunity of hearing, all the
three
applicants'
applications
were
rejected by trial court. Aggrieved by these
orders, this application has been filed by
all the three applicants.

5. Record shows that copy of the
application of the applicant Anshu alias
Dilip Kumar moved before the trial court
is annexed at Page 15 and 16 while copy
of the application of Dhan Singh is at
Page 17 and 18. Copy of the application
moved on behalf of Mahendra Singh was
not filed to the reason best known to the
applicants. Copy of the order passed on
the application of Mahendra by the trial
court is at Page 19 and 20 and
21A(certified copies) while copy of the
order passed on the application of Anshu
is at page No. 21 B and 21 C (certified
copy) and photocopy at Page 21. Copy of
the order rejecting the application of Dhan
Singh has not been filed on behalf of the
applicants. This shows that to the reason
best known to the applicants required
papers of decided case were not filed on
the record.

6. How the investigation was
completed and what were the statements
of the witnesses under Sections 161
Cr.P.C. are also not made available on
behalf of the applicants. It is also not clear
from the record that when the applications
for release of the case property were
rejected by the trial court, why the
Appeal/Revision was not filed before the
appropriate authorities/court and why
directly the applicants have approached
this court by the present Application
under Section 482 Cr.P.C.

7. Learned counsel for the applicants
during the course of arguments has also
not pressed the prayer to quash the
charge-sheet. He argued that without
giving
sufficient
reasons,
arbitrarily,
learned trial court has rejected the
applications of the applicants to release
the Wheat in their favour. It was further
argued that Wheat was a perishable
commidity and it was the duty of the trial
court that if the court was not intending to
release the Wheat in their favour at least,
some arrangements should have been
made so that seized commodity could not
be damaged due to lapse of time. Learned
AGA argued that Wheat recovered was
seized taking that it was the Government
1 All] Anshu @ Dilip Kumar and others V. State of U.P. and another
363
property
and
applicants
were
not
authorized for its possession without any
license or authority. They failed to give
any sufficient explanation how and why
this Government property was in their
possession and under what authority, they
were keeping it. However, learned AGA
conceded that learned trial court should
have made some order to avoid the
damage of the commodity due to lapse of
time.

8. Learned counsel for the applicants
argued that the Wheat was not a
Government property. They intending to
sell it at market price in the Mandi so the
Wheat was being transported on the hired
vehicle Mini Truck but due to some
mechanical defects, it was not possible
that Truck may reach the Mandi. Tractor
Trolly was arranged. When the raid was
arranged and the Wheat was seized the
bags were being loaded in the Tractor
Trolly from the Mini Truck to bring the
same for the above said purpose. It was
further argued by the learned counsel for
the applicants that Wheat was not filled in
the Bags having mark of APL but these
were
in
SADA
bags
which
were
purchased by them from the market. Out
of the three applicants, only one Anshu
alias Dilip Kumar was present when the
Wheat was seized. Four persons were
arrested by the authorities from the spot.
Why Anshu alias Dilip Kumar have not
given the above details of ownership to
the authorities, it is not sufficiently
explained on behalf of the applicants. All
the three applicants, claimed that they are
agriculturists and the Wheat in the Bags
was produced of their fields but no copy
of Khasra and Khautani showing their
land in the area was filed on behalf of the
applicants. Only Anshu has given some
detail and rest of the two applicants have
not given any detail of Plot No. of their
land, from where they have hired the Mini
Truck, who is the owner of the Truck.
Similarly, to whom The Tractor Trolly
belongs and why this Tractor and Trolly
was not having registration number, it is
also not explained on behalf of the
applicants. When the Tractor Trolly was
handed over to the Police at the Police
Station, anybody approached to the court
to get released them, it is also not clear
from the record and learned counsel for
the applicants also could not explain the
same during the course of arguments. No
receipt of hiring Truck and Tractor Trolly
also filed on behalf of the applicants.
Mahendra Singh and Dhan Singh are not
joined in the charge-sheet as the accused
Anshu was charge-sheeted by the Police.
How he has claimed his bail in the matter
and what was the order of his release on
bail, neither copy of the bail application
nor the release order has been filed.

On behalf of the State authorities it
has been claimed that the Wheat belongs
to the Government while the applicants
are claiming their own. It has to be
decided by the evidence to be adduced in
this regard, but no such evidence was
made available on behalf of the applicants
to show that the Wheat contained in the
Bags is their own property.

9.. In these circumstances of the case,
taking into consideration the arguments of
parties counsel and facts of the case, if an
application of the applicants to release the
Wheat in their favour is rejected by the trial
court, there is no illegality, invalidity and
impropriety in the orders. However, it is
correct that Wheat in the Bags is a
perishable item and some arrangements
should have been made by the trial court
either by selling the same in the open
364 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
market or by selling the same on the
Government shops and the money collected
may be deposited in the court concerned or
with the authority concern, subject to the
result of the case but no such arrangements
was made neither by the trial court nor by
the authorities who seized the Wheat and
kept it in the Go-down of Mandi Samiti.
Possibility cannot be ruled out that by lapse
of time, it may perish. Learned counsel for
the applicant cited law 2003 (46) ACC 223
Sundar Bhai Ambalal vs. State of Gujarat
and 2008 (1) ADJ 321 Virendra Vs. State.
Hon'ble Supreme Court and this Court
have given directions about the disposal of
such type of items during pendency of the
case. It will be appropriate for the trial court
to pass necessary orders in the light of law
laid down above by the courts referred
above. Learned Magistrate may also direct
the authorities of the district concerned for
disposal of the seized Wheat according to
law and the price received be deposited in
the Court or with some Government
authority subject to the result of the matter.
Empty bags will be kept in safe custody so
that they may be produced in the Court.

10. With the observation made
above, the application is disposed of.

11. Copy of the order be sent to the
trial court for immediate compliance.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.04.2010

BEFORE
THE HON'BLE SHRI KANT TRIPATHI, J.

Criminal Misc. Application No. 11363 of 2010

Dau Dayal

...Applicant
Versus
State of U.P. & another ...Opposite Party
Counsel for the Applicant:
Sri K.K. Dwivedi

Counsel for the Opposite Party:
Govt. Advocate

Code of Criminal Procedure Code-Section
111-Noitce on printed proforma-without
application of judicial mind-substance of
information not disclosed-held-illegalquashed with liberty to issue fresh notice
in accordance with law.

Held: Para 8

In my opinion, if the apprehension of
breach of peace was in regard to the
possession of the land, the appropriate
course for the Executive Magistrate was
to initiate a proceeding under section
145 of the Code instead of proceeding
under section 107/116 of the Code. The
satisfaction recorded by the Magistrate
in
the
notice
in
regard
to
the
apprehension of breach of peace was
already printed and only gaps have been
filled up, therefore, the satisfaction was
not recorded after application of the
mind to the facts of the case.
Case law discussed:
[1993(3) ACC page 146], [1993(30) ACC page
227].

(Delivered by Hon'ble Shri Kant Tripathi, J.)

1. Heard learned counsel for the
applicant and the learned AGA and
perused the record.

2. This is a petition under section
482 of the Code of Criminal Procedure (in
short "the Code") to quash the notice
dated
21.12.2009
issued
by
the
respondent no. 2 under section 111 of the
Code.

3. The main ground for challenging
the notice is that the learned Executive
Magistrate has issued the notice on a