- (1.) THE prayer of the petitioner is to command the respondents to release the amount deposited in Criminal Head along with the interest thereby and also to refund security money.
(2.) IT appear that case Crime No. 132 of 1981 under Sections 3/7 of the Essential Commodities ACL Police Station Kotwali, Town Azamgarh was registered on the written information of the Supply Inspec tor, Azamgarh against the petitioner, allegation inter alia, that the informant alongwith others conducted a raid at the licensed cement shop of the petitioner; that at the time of the raid the petitioner was present; that the licence was not dis played at the front portion of the shop as per the terms of the licence and thereby Term No. 1 of the licence has been vio lated; that as per the Stock Register there should have been 484 bags of cement in the godown but on its inspection 505 bags of cement were found thereby there were 21 bags of cement in excess; that even though the standard weight of the bags should have been 50 kilogrammes, after weighing weight of 5 bags was found in less and thereby the petitioner has violated the licence granted under the U. P. Weight and Measures Act and the U. P. Cement Con trol Orders, 1973 which is an offence under Section 7 of the Essential Commodities Act. The petitioner avers that the 21 bags found in excess were purchased by him for his personal use. Vide order dated 23-2-1981 the Sub-Divisional Magistrate, Azamgarh directed that the seized cement should be sold and the amount fetched should be deposited and the case against the petitioner shall proceed; against this order the petitioner came before this Court in Civil Misc. Writ Petition No. 6344 of 1981; vide interim order dated 7-5-1981 this Court directed the sale of cement bags, the cement has been sold for a sum of Rs. 14,103, 76p; finally vide order dated 11-11-1981 the said writ petition was disposed of with a direction that the amount received from the sale of cement shall be kept in criminal deposit subject to final decision in the criminal prosecution; that till to-date the police neither submitted charge-sheet nor has any proceeding been indicated; the petitioner filed an application on 20-11-1987 before the Special Judge for refund of the amount, who asked for a report from the police, but no report has been submitted and hence this writ petition. In the counter-affidavit it has been stated, inter alia, that in regard to Case Crime No. 132 of 1981 charge- sheet No. 151 dated 10-3-1981 was submitted, which was returned on 1-10-1981 as there were some infirmities; that after removing the infirmities it was sent to CO. , Nagar on 26-12-1981 but unfortunately the register of 1981 is not available with C. O. Nagar in which facts in regard to receipt of the charge-sheet or its despatch to the Court are entered that from the enquiry made from the office of the District & Sessions Judge, Azamgarh it has transpired that the charge-sheet has not reached the Court; that attempts were made to find out the second copy which despite endeavour could not be obtained and since the matter is of the year 1981, it might be possibly destroyed; that from a perusal of the first information report and the fact of submis sion of the charge-sheet it is clear that against the petitioner prima facie an of fence has been made out and that the petitioner is not entitled to the reliefs claimed for under Article 226 of the Constitution of India.
(3.) MR. A. K. Shukla, learned Counsel appearing in support of this writ petition, contended that in the facts and cir cumstances the petitioner is entitled to the reliefs claimed for. Mr. Sudhir Mehrotra, learned A. G. A. , on the other hand contended that the question as to whether the 21 bags of excess cement purchased by the petitioner for his personal use is a question which is required to be adjudicated at the trial and not by this Court at this stage of the matter under Article 226 of the Constitution of India. He further contended that the other acts stated in the first information report not having been denied, the petitioner is not entitled to the reliefs claimed for who wants to take advantage of the loss of the charge-sheet.;