Jammu & Kashmir High Court
Tarsem Raj Padha vs State And Anr. on 28 September, 2017
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
Petition u/s 561-A No.60/2013 &MP No.75/2013
Date of order:-28.09.2017
Tarsem Raj Padha V. State and anr.
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta
Appearing Counsel:
For the petitioner(s): Mr. Rahul Pant, Advocate.
For the respondent(s) Mr. S. S. Nanda, Sr. AAG.
i. Whether approved for
reporting in Press/Media : Yes/No/Optional
ii. Whether to be reported in
Digest/Journal : Yes/No
1. Through the medium of instant petition filed under Section 561-A Cr.P.C., petitioner-Tarsem Raj Padha seeks setting aside of impugned order dated 09.01.2013 passed by learned Special Judge Anti Corruption Jammu in File No.36/Challan in case titled 'State Vs. Tarsem Raj Padha and others' to the extent the charge has been ordered to be framed against the petitioner u/s5(2) of the J&K PC Act Svt. 2006 read with Sections 409, 406 and 120- B RPC.
2. Learned counsel for the petitioner stated that the petitioner was posted as Assistant Director, Consumer Affairs and Public Distribution Department, Udhampur w.e.f. July 2007 and February 2009. Petitioner retired as Assistant Director in February, 2009. That in the year 2008 an FIR No.28 of 2008 came to be registered with Police Station Crime Branch Jammu for commission of offences under Section 3/7 Essential Commodity Act read 561-A Cr.P.C. No.60 of 2013 Page 1 of 13 with 120-B RPC. Subsequently, offences under Sections 409 and 406 RPC and 5(2) Prevention of Corruption Act were added. That after completion of the investigation, challan came to be presented by the Crime Branch against ten accused persons including the petitioner. That as per challan, the story of the prosecution was that it came to know from reliable sources that some persons in connivance with the officials of the CAPD Department were indulging in illegal trade of kerosene oil on Jammu- Srinagar NHIA at Jhajjar Kotli, Manthal and Mand, which was supplied by the CAPD Department to various dealers for supply to the civilians for domestic use. It was also the information that kerosene oil was stored and sold in bulk to the truck drivers for obtaining monetary benefits. The case which was initially registered for commission of offence under Section 3/7 EC Act read with Section 120-B RPC was finally challaned under Section 5(2) of the PC Act Sct. 2006 read with Sections 3/7/8 EC Act, 409, 406 and 120-B RPC.
3. Learned counsel has stated that at the time of framing of the charge, arguments were heard at length by the learned trial Court and did not agree with the challan presented by the prosecution. Vide order dated 09.05.2011, learned trial Court framed the following issues requiring a detailed deliberation on the part of I.O. to carry the further investigation to its logical end:-
a. Who has made allocation of kerosene in the month of October 2008 to dealers/private individuals apart from accused No.1.? b. Whether accused No.1 has made any allocation of kerosene in favour of any private individual and if so when and to what extent?
c. Why sanction in terms of Section 15-A of EC Act was not obtained for prosecution of accused No.1 a retired public servant?
d. Was the opinion of the handwriting expert not necessary to identify the signatures/writings attributed to accused No.1 and that of the person who has issued licences and has made most of the allocations of kerosene to dealers and private individuals apart from accused No.1 in the month of October 2008?561-A Cr.P.C. No.60 of 2013 Page 2 of 13
It is further stated that after further investigation, no material whatsoever was found against the petitioner. As a matter of fact this Court may appreciate the most important aspect of the matter that initially when the challan was presented, petitioner was made accused, whereas the Tehsil Supply Officer, Udhampur namely Sh. Bansi Lal Gupta and the concerned Clerk Sh. Lekh Raj Wazir were not made accused, rather Sh. Bansi Lal Gupta the then Tehsil Supply Officer was cited as prosecution witness. Similarly, the clerk of the office of petitioner namely Sh. Lekh Raj Wazir was also cited as prosecution witness. That the supplementary challan was subsequently presented by the Senior Superintendent of Police, Crime Branch, Jammu along with the supplementary list of witnesses and it was the case of the prosecution in the supplementary challan that out of the total allocation made in the month of October, 2008, 13 had been made by the accused (petitioner herein) in his capacity as Assistant Director CAPD and rest of the allocations had been made by the Tehsil Supply Officer himself namely Sh. Bansi Lal Gupta, whereas said Sh. Bansi Lal Gupta was cited as prosecution witness. Similarly, the clerk of the office of the petitioner namely Sh. Lekh Raj Wazir was also cited as prosecution witness. At the time of presentation of challan, prosecution had mentioned that the allocations had been sent to the Forensic Science Laboratory Jammu along with specimen signatures of the petitioner and also of Tehsil Supply Officer-Sh. Bansi Lal Gupta for ascertaining the signatures and the report in this regard is still awaited. In the supplementary challan, it was also the case of the prosecution that the petitioner had made allocations in excess of the quota with the other accused officials namely Sh. Lekh Raj Wazir and Sh. Bansi Lal Gupta after hatching criminal conspiracy with kerosene oil dealers and private accused persons/individuals. That during the pendency of the case before the Court below, the report from the Forensic Science Laboratory was also received, which was placed on record by the prosecution before the consideration of the case for framing of the charge 561-A Cr.P.C. No.60 of 2013 Page 3 of 13 and it became clear from the report that not even a single allotment order had been signed by the petitioner. When the matter was considered for framing of the charge, petitioner relied upon the supplementary charge- sheet as also the report of the Forensic Science Laboratory to plead his innocence that he had not made any allotment much less the allotment in excess of quota either to the dealers or to a non-dealer. The learned trial Court without discussing the merits of the case has passed order for framing of the charge against the petitioner. The petitioner has been charge sheeted for commission of offence under Section 5(1)(d) read with 5(2) of PC Act Svt. 2006, 406, 409 and 120-B RPC. Since the charge sheet was presented for the commission of offence under Section 3/7/8 EC Act also, but no such charge was framed as sanction to prosecute the petitioner has not been granted by the competent authority.
4. Learned counsel has challenged the order impugned and the charge framed against the petitioner, inter alia, on the ground that the same are totally illegal and an abuse of process of law as on the face of it, no offence is made out against the petitioner as per the case set up by the prosecution itself. That the learned trial Court has not at all considered the relevant piece of evidence i.e. the report received from the J&K Forensic Science Laboratory, Srinagar, which categorically stated that not even a single allotment order had been signed by the petitioner. As a matter of fact, allotment orders had been issued by the Tehsil Supply Officer himself and although in the supplementary challan which was presented against the petitioner, the prosecution claimed to have obtained 13 allocations singed by the petitioner but the evidence of the FSL negated the aforesaid assertion of the prosecution also, meaning thereby that there was absolutely no evidence to connect the petitioner with the issuance of any allotment letter and once there is no allotment letter by the petitioner and there is no proof of the same before the Court, as such, there is no question of framing the charge against the petitioner for commission of offence under Section 561-A Cr.P.C. No.60 of 2013 Page 4 of 13 5(1)(2) PC Act or any other offence. That in so far as the question of conspiracy is concerned, it is not understandable as to how the charge of conspiracy has been framed against the petitioner more particularly when there is not even an iota of evidence of circumstance appearing against the petitioner connecting him with any criminal conspiracy. The challan even if is taken to be true at its face value will result in nothing but the acquittal of the petitioner. The framing of the charge as such is bad and the order impugned as also the charge sheet are liable to be quashed. That it is not understandable as to how the charge under Section 406 and 409 has been framed against the petitioner. As a matter of fact, there is total non application of mind on the part of the Court below and in a most mechanical manner without assigning any reason and without giving any gist of the facts, the charge has been framed. On this count also, the order impugned and the charge sheet are liable to be set aside.
5. In compliance to the Court order dated 30.07.2013, Status Report stands filed on behalf of respondent No.2. It is stated that on the basis of evidence both oral, as well as, documentary brought on record, it has been established that during the month of October 2008, the Directorate of CA&PD Jammu placed a quantity of 3,36,000 liters of K.Oil at the disposal of then Assistant Director CA&PD, Udhampur namely (1) Tarsem Raj Padha (accused) for its further distribution to the public through concerned TSOs of his jurisdiction. But said accused in connivance and criminal conspiracy with other accused namely (2) Sham Singh S/o Jodh Ram caste Rajput R/o Tikri Tehsil & District Udhampur, K.Oil dealer Mand Udhampur, (3) Prakash Singh S/o Partap Singh caste Rajput R/o Chinas Tehsil & District Udhampur, K.Oil dealer Chinas Udhampur, (4) Mangat Ram S/o Munshi Singh caste Thakur R/o Tikri Tehsil & District Udhampur, K.Oil dealer Tikri, (5) Ajay Kumar S/o Krishen Lal caste Brahmin R/o Manthal Tehsil & District Udhampur, (6) Madan Singh S/o Mashab Singh caste Rajput R/o Chinas Tehsil & District Udhampur, (7) 561-A Cr.P.C. No.60 of 2013 Page 5 of 13 Sudesh Kumar S/o Krishan Lal caste Brahmin R/o Manwal Tehsil & District Udhampur, (8) Tej Ram S/o Durga Dass caste Brahin R/o Manthal Tehsil & District Udhampur, (9) Yog Raj S/o Dharam Chand caste Brahim R/o Salara Tehsil & District Jammu, (10) Tarun Kumar S/o Birbal caste Brahmin R/ Manthal Tehsil & District Udhampur and (12) Janak Raj S/o Tara Chand castre Brahmin R/o Tikri Tehsil & District Udhampur and in sheer abuse of official position directly issued the K.Oil to the K.Oil dealers of District Udhampur. The K.Oil had to be issued to the authorized dealers only and that too at a uniform scale of 5 liters per ration card as per the number of ration cards attached with dealer, but the said accused Assistant Director with criminal intention issued excess quantity of K.Oil to these dealers beyond the prescribed limits, so much so the K.Oil has been issued without confirmation/verification of number of families/ration cards attached with each such dealer. Out of the total quantity of 3,36,000 liters of K.Oil allocated by the Directorate CA&PD which was to be lifted from the stockists namely M/s Little Sons & Co., M/s Devi Dass Gopal Kishen, M/s Bishan Lal Som Nath, M/s Shital Singh Ishar Singh and M/s Udhampur Trading Co. the accused Tarsem Raj Padha allotted this quantity of K.Oil in his jurisdiciton on an enhanced scale to the unlicensed/licensed dealers after hatching a criminal conspiracy with them who in turn by way of hoarding and profiteering sold this K.Oil in black market and even to the truck drivers plying their vehicles upon NH1A at the exorbitant rates between Rs.20/- to Rs.24/- per litre against the subsidized procured rate of Rs.9.40/- liter for general masses thereby obtained illegal gain for themselves as well as the accused Ni.01 A/D CA&PD. The offences u/s 5(2) P.C Act 2006 r/2 section 3/7, 3/8 E.C Act and section 120/B RPC have been found committed by the accused persons. The individual responsibility of each accused has been fixed. Shri Tarseem Raj Padha S/o Shri Aasa Ram R/o W.No. 15 Patel Nagar Kathua (the then Assistant Director CA&PD Department Udhampur) being a district head of CA&PD 561-A Cr.P.C. No.60 of 2013 Page 6 of 13 Department, he was supposed to ensure fair and transparent supply and distribution of K.Oil meant for general public. It was his duty to ensure that the K.Oil is allocated by the concerned TSOs to the authorized and licensed dealers only at a uniform scale of 5 liters per ration card prescribed by the Govt. and that too after verification of number of ration cards attached with each such dealer. Instead, he hatched a criminal conspiracy with accused dealers/unauthorized persons and made such allocations that too at an enhanced scale and without updating and getting the verification made about the number of ration cards attached with such dealer and his place of operation, thereby allowing his favourite dealer/unauthorized persons to sell this K.Oil in black market, thus facilitated these persons in the illegal trade of K.Oil and thereby conferred undue pecuniary benefits upon these persons and corresponding loss to the state exchequer.
6. On the basis of the evidence collected both oral, documentary, scientific as well as circumstantial evidence brought on record during investigiation offences u/s 5(2) P.C Act Svt. 2006 r/w section 3/7, 3/8 EC Act, 409, and 406 and 120-B RPC have been found committed by the accused persons namely (1) Tarseem Raj Padha S/o Sh. Assa Ram (the then Asstt. Director CA&PD Udhampur now retired), (2) Sham Singh S/o Jodh Ram, caste Rajput R/o Tikri, Tehsil & District Udhampur, K.Oil dealer Mand Udhampur, (3) Ajay Kumar S/o Krishen Lal, caste Brahmin R/o Manthal, Tehsil & District Udhampur, (4) Madan Singh S/o Mashab Singh, caste Rajput R/o Chinas, Tehsil & District Udhampur, (5) Prakash Singh S/o Partap Singh, caste Rajput R/o Chinas, Tehsil & District Udhampur, K.Oil dealer Chinas Udhampur, (6) Mangat Ram S/o Munshi Singh, caste Thakur R/o Tikri, Tehsil & District Udhampur, K.Oil dealer Tikri, (7) Tarun Kumar S/o Birbal, caste Brahmin R/o Manthal, Tehsil & District Udhampur, (8) Sudesh Kumar S/o Krishan Lal, caste Brahmin R/o Manwal, Tehsil & District Udhampur, (9) Tej Ram S/o Durga Dass, caste Brahmin R/o Manthal, Tehsil & District Udhampur, (10) Yog Raj S/o Dharam 561-A Cr.P.C. No.60 of 2013 Page 7 of 13 Chand, caste Brahim R/o Salora, Tehsil & District Jammu, (11) Janak Raj S/o Tara Chand, caste Brahmin R/o Tikri, Tehsil & District Udhampur
7. It is further submitted that the Challan of the case was produced before the Hon'ble Court of Special Judge, Anti Corruption; Jammu on 24.11.2010 against the above mentioned (11) accused persons. The Hon'ble Court at the stage of framing of charge found some aspects of the case un- investigated and directed further investigation into the matter vide order dated 09.05.2011. The investigation was again taken up and the points raised by the Hon'ble Court were verified and investigation finalized accordingly. The investigation of the case was completed and para-wise report of the investigation conducted on the observation raised by the Hon'ble Court is submitted as under:-
(i) The 1st observation was that who had made the allocations to dealers and private individuals in the month of October 2008 apart from accused Tarsem Raj Padha. In this regard the allocations were scrutinized and found that during the month of October, 2008, 13 allocations issued vide No. 717/AD/CAPD, No. 718/AD/CAPD, No. 719/AD/CAPD, No.720/AD/CAPD, No.723/AD/CAPD, No.724/AD/CAPD, No.725/AD/CAPD, No.734/AD/CAPD, No.735/AD/CAPD, No.738/AD/CAPD, No.739/AD/CAPD, No.740/AD/CAPD, and No.753/AD/CAPD were made by the accused Tarsem Raj Padha the then AD, CA&PD, Udhampur, whereas rest of the allocations were made by accused Bansi Lal the then TSOs, Udhampur;
(ii) The 2nd observation was, whether accused Tarsem Raj Padha had made any allocation Kerosene Oil in favour of private individuals and if so when and to what extent.
Though no direct allocation was made by the accused Tarsem Raj Padha to private individuals, but the 561-A Cr.P.C. No.60 of 2013 Page 8 of 13 investigation has revealed that vide allocation No.719/AD/CAPD and No.724/AD/CAPD, the accused Tarsem Raj Padha had issued access Kerosene Oil dealers, whereas vide allocation No.720/AD/CAPD, the Kerosene Oil was supplied in favour of Shekher Chander a non-
existing Kerosene Oil dealer of Mand, Udhampur;
(iii) The 3rd observation was that why sanction in terms of section 15-A of EC Act was not obtained for prosecution of the accused officials. Accordingly, the Sanction in terms of Section 15-A of EC Act has been obtained from concerned District Magistrate.
8. It is submitted that after completion of investigation the supplementary Challan (charge-sheet) was produced before Court on 28.12.2011 against two more accused persons namely Bansi Lal Gupta, the then TSO Udhampur and Lekh Raj, the then clerk in the office of AD CA&PD Udhampur and Court below had framed charges against all the accused including Tarsem Raj Padha.
9. Heard learned counsel for the parties and gone through the contents of the petition as well as objections meticulously. I have also considered the law on the subject.
10. Present is a petition against the order on charge. As per law Special Judge is required to consider the record of the case and the documents thereof and find out if there is any sufficient ground for proceeding. If on consideration of the documents and hearing the parties, the Court finds that there is a ground for presuming that an offence has been committed, it would proceed with the trial after framing of charge; the scope of the remedy available to the Petitioner under 561-A cr.p.c is limited and this Court can interfere only if uncontroverted allegations taken on their face value show that no offence is made out or there is an abuse of the process of the Court.
561-A Cr.P.C. No.60 of 2013 Page 9 of 1311. This Court in exercise of its power under this section would not act as a Court of Appeal and hear every error of law. Even every error of law need not be corrected in this petition, So long as the error of law can be corrected during the trial, it should not be resorted to in a petition under 561-A Cr.P.C. At the stage of charge this Court cannot hold a mini trial. As held in N.Ramakrishna Ayyar through legal heirs Vs. State of Andhra Pradesh (2008) 17 SCC 83 and Hem Chand v. State of Jharkhand (2008) 5 SCC 113 at this stage the Court will not delve deep into the matter for the purpose of appreciating the evidence and the stage to weigh the evidence would be when the entire evidence is brought on record.
12. In present case, perusal of charge-sheet framed by Court below, would reveal that allegations against petitioner is that he being a public servant as Assistant Director CA&PD Udhampur conspired with other accused and facilitated the supply of K.oil in excess quota to which dealers were entitled and also facilitated the supply of K.oil to accused, who were not entitled to supply of K.oil, as they were not authorized dealers to keep quota of k.oil. Accordingly Court has framed charges under section 5(1)(d) r/w 5(2) of J&K P.C. Act and 406/409/120-B RPC.
13. The ground taken that trial Court has not at all considered the relevant piece of evidence i.e. the report received from the J&K Forensic Science Laboratory, Srinagar, which categorically stated that not even a single allotment order had been signed by the petitioner, is not tenable because it is petitioner's case that he remained posted as Assistant Director, Consumer Affairs and Public Distribution Department, Udhampur w.e.f. July 2007 and February 2009; the allegations in charge sheet are also pertaining to this period. The FSL report is not substantial piece of evidence; the conclusion arrived at by expert in FSL report is a relevant fact in criminal trial.
561-A Cr.P.C. No.60 of 2013 Page 10 of 1314. Further, there is specific finding of investigating officer that allocations were scrutinized and found that during the month of October, 2008, 13 allocations issued vide Nos.717/AD/CAPD, 718/AD/CAPD, 719/AD/CAPD, 720/AD/CAPD, 723/AD/CAPD, 724/AD/CAPD, 725/AD/CAPD, 734/AD/CAPD, 735/AD/CAPD, 738/AD/CAPD, 739/AD/CAPD, 740/AD/CAPD and 753/AD/CAPD were made by the accused Tarsem Raj Padha the then AD, CA&PD, Udhampur; I/O has further held that vide allocation No.719/AD/CAPD and No.724/AD/CAPD, the accused Tarsem Raj Padha had issued access Kerosene Oil dealers, whereas vide allocation No.720/AD/CAPD, the Kerosene Oil was supplied in favour of Shekher Chander a non-existing Kerosene Oil dealer of Mand, Udhampur. Being Assistant Director, Consumer Affairs and Public Distribution Department, Udhampur, petitioner was supposed to fair distribution of K.Oil to consumer through TSO @ 5 liters per ration card holder ; but he himself after bypassing the TSO directly allotted the K.Oil at enhanced rate to favorite dealer/ unauthorized persons after hatching the conspiracy with them ; who in turn sold the same in black market. There is detail of record of allotment of K.Oil made by petitioner to these dealers.
15. In this way, there are sufficient materials to frame charges against the petitioner. At the time of framing of charge, there should be grounds for presuming that accused has committed offence. Court at this stage has not to appreciate the facts, which are required to be appreciated at final stage of criminal case.
16. A Constitution Bench of Apex Court in case titled 'Dr. Subramanian Swamy Vs. Director, Central Bureau of Investigation & Anr.' with 'Centre for Public Interest Litigation Vs. Union of India' decided on 6 May, 2014 in WRIT PETITION (CIVIL) NO. 38 of 1997 reported in AIR 2004 SC 2140, has held as under:-
561-A Cr.P.C. No.60 of 2013 Page 11 of 13"70. Office of public power cannot be the workshop of personal gain. The probity in public life is of great importance. How can two public servants against whom there are allegations of corruption or graft or bribe- taking or criminal misconduct under the PC Act, 1988 can be made to be treated differently because one happens to be a junior officer and the other, a senior decision maker.
71. Corruption is an enemy of nation and tracking down corrupt public servant, howsoever high he may be, and punishing such person is a necessary mandate under the PC Act, 1988. The status or position of public servant does not qualify such public servant from exemption from equal treatment. The decision making power does not segregate corrupt officers into two classes as they are common crime doers and have to be tracked down by the same process of inquiry and investigation.
73. The PC Act, 1988 is a special statute and its preamble shows that it has been enacted to consolidate and amend the law relating to the prevention of corruption and for the matters connected therewith. It is intended to make the corruption laws more effective by widening their coverage and by strengthening the provisions. It came to be enacted because Prevention of Corruption Act, 1947 as amended from time to time was inadequate to deal with the offences of corruption effectively. The new Act now seeks to provide for speedy trial of offences punishable under the Act in public interest as the legislature had become aware of corruption amongst the public servants.
74. Corruption corrodes the moral fabric of the society and corruption by public servants not only leads to corrosion of the moral fabric of the society but also harmful to the national economy and national interest, as the persons occupying high posts in the Government by misusing their power due to corruption can cause considerable damage to the national economy, national interest and image of the country."
17. An attitude to abuse the official position to extend favour in lieu of benefit is a crime against the collective and an abomination to the basic principle of democracy, for it erodes the faith of the people in the system. It creates an incurable concavity in the Rule of Law. The corruption laws have been made intended to eradicate corruption and provide deterrent punishment when criminal culpability is proven. Thus, the allegations levelled against the petitioner clearly come under the purview of offences mentioned under sections 5(2) of the PC Act Svt. 2006 read with Sections 3/7/8 EC Act & 409, 406 and 120-B RPC.
18. It is not the case of petitioner that there is some inherent legal bar engrafted in criminal procedure or corruption Laws in framing of charges by Court 561-A Cr.P.C. No.60 of 2013 Page 12 of 13 below against the petitioner. In view of above, there is no legal infirmity of law in framing the charge. This petition is, thus, dismissed.
19. There are ten other accused along with petitioner, who are enjoying stay of proceeding since 20.3.2013. Hence, Court below shall expedite the trial. Copy of this order be sent to Court below for information.
( Sanjay Kumar Gupta ) Judge Jammu 28.09.2017 Narinder 561-A Cr.P.C. No.60 of 2013 Page 13 of 13