Allahabad High Court
Arvind Padhi vs State Of U.P. Thru. Prin. Secy. Home Lko. on 23 January, 2023
Author: K.S. Pawar
Bench: Karunesh Singh Pawar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH In the High Court of Judicature at Allahabad Bench at Lucknow Court No. - 12 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 105 of 2023 Applicant :- Arvind Padhi Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. Counsel for Applicant :- Purnendu Chakravarty,Pranjal Jain Counsel for Opposite Party :- G.A.,Radhika Singh Connected with CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No.106 of 2023 Akhil Sarda versus State of UP. and CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No.108 of 2023 Himanshu Kumar Tiwari versus State of U.P. Hon'ble Karunesh Singh Pawar,J.
1. Three second anticipatory bail applications filed in case crime No.260 of 2018 under sections 406, 420, 467, 468, 471, 120-B I.P.C., P.S. Hussainganj, district Lucknow are before this court which involve common question of law and facts and role of the accused applicants is also more or less the same as they all are officers of United Breweries Limited (in short, UBL), hence have been heard together and are being decided by this common order.
Earlier, the applicants had filed first anticipatory bail applications which have been rejected vide orders dated 5.1.2023 on the ground that the bail applications of the applicants were not filed with the affidavit of the applicants, however, with liberty to file afresh as per Allahabad High Court Rules (Annexures 'A').
2. Heard Mr. I.B. Singh, assisted by Mr. Purnendu Chakravarty, learned counsel for the applicants, Mr. Anurag Verma, learned counsel appearing for the State of U.P. and Mr. Prashant Chandra, learned Senior Advocate, assisted by Ms. Radhika Singh, learned counsel for the complainant.
Written submission(s) produced by learned counsel for the parties are taken on record.
3. Prosecution case as per first information report is that the informant Sanjit Jaiswal and Ashok Kumar Jaiswal, licencees of F.L.2B have given information to police station Hussainganj, district Lucknow alleging that on 7.9.2018 and 11.9.2018 through MAIL, an order was placed to M/s United Breweries Limited through its Branch Manager, Sales, U.P. and Uttarakhand Akhil Sarda for three truck beer. For that, a sum of Rs.65,66,152/- through RTGS/NEFT dated 7.9.2018 and Rs.27,32,750/- through RTGS/NEFT dated 11.9.2018 was paid through the Federal Bank Limited, Cantt Road, Lucknow. It is alleged that thus a total Rs.93, 98, 902/- lacs was paid. However, the supply in lieu of the order and the payment made by the informant has not been done by Akhil Sarda till date, nor he has given any appropriate explanation regarding non-supply of the order. It is further alleged that the informant has suspicion that the accused want to usurp his money as under the Excise Rules, the order has to be supplied within 72 hours. Thus, it has been prayed that the first information report be registered against Akhil Sharda, Himanshu Tiwari and Arvind Padhi.
4. Learned Senior Counsel for the applicants has disputed the contents of the first information report. He submits that the first information report does not make any allegations against the applicants individually. The first information Report No.260 of 2018 was registered at police station Husainganj, Lucknow in which the present applications have been filed by the applicants. It is submitted that on the same date, another complaint was filed by the Manager of SICAL Logistic (third party transporter) alleging that the two trucks loaded with beer went missing and first information report No.390 of 2018 was registered at police station Badalpur, Gautambuddh Nagar against the truck drivers under sections 406, 420 I.P.C.
In the first information report No.260 of 2018, the investigating officer filed a final report (CS-1) and closed the case as the goods were re-supplied and there was no offence committed. However, on an application moved by Ashok Jaiswal against the final report to the S.P. Crime, the investigation was transferred to Crime Branch. The second charge sheet (CS No.2) was filed by Crime Branch against the three applicants and UBL under sections 406, 420, 467, 468, 471, 120-B I.P.C. It is submitted that neither the CS No.2 nor any of the statements recorded by the investigating officer allege anything against the applicants. CS No.2 and consequent summoning order dated 13.2.2019 were challenged before this court in a petition under section 482 CrPC No.2005 of 2019. Vide order dated 5.4.2019, the High Court granted interim order and ultimately quashed C.S. No.2 and consequent summoning order vide judgment and order dated 6.3.2020. It is submitted that the State of U.P. and the complainant challenged the judgment before the Supreme Court and on 11.7.2022, the Supreme Court set aside the impugned judgment of the High Court and restored the matter before the trial court.
Third charge sheet (CS No.3) came to be filed in first information report No.260 of 2018 against nine Directors and Company Secretary of UBL. This C.S.-3 was quashed by the High Court vide judgment and order dated 13.10.2022 in Criminal Misc. Petition No.72 of 2020 and no appeal has been filed.
It is further submitted that pursuance to the interim order dated 5.4.2019 of the High court, the applicants furnished personal bond of Rs.50 lacs and they were directed not to leave the country. Further the UBL deposited security of Rs. 45 lacs through Fixed Deposit.
In Case Crime No.260 of 2018, the Crime Branch filed charge sheet (CS-4) against seventeen accused persons and concluded the investigation.
The CBCID investigated the first information report No.227 (old F.I.R. No.390 of 2018). It is submitted that there is no allegation against the applicants or UBL in the said charge sheet. It is thus submitted that these are two charge sheets naming two different sets of accused persons of the same truck loss issue. The anticipatory bail application moved by the applicants before the Sessions Court after judgment dated 11.7.2022 of the Supreme Court came to be rejected vide order dated 29.10.2022 and non bailable warrants were issued by the trial court on 17.10.2022.
It is next submitted that the applicants are merely employees of UBL and have no role whatsoever in the offence alleged against them. The applicants are not beneficiaries. They have not received any money from the complainant as it was directly transferred in the account of UBL. There is no loss to the complainant and no wrongful gain to the UBL as the goods have been re-supplied to the complainant at no additional cost. The applicants have cooperated in the investigation. There is no risk of tampering of evidence. The charge sheet has been filed in other first information report also in which the applicants have not been named.
It is lastly submitted that there is no question of excise duty evasion in the present case as the excise duty was paid in advance even before the trucks were loaded to be dispatched for delivery.
5. Mr. Prashant Chandra, learned Senior Advocate, assisted by Ms. Radhika Singh, learned counsel for the complainant has vehemently opposed the applications. He has denied the contention of the applicants' counsel that UBL supplied two trucks of beer in lieu of earlier missing trucks at no additional charge. He submits that this supply was against separate order and the applicants are trying to mislead this Court.
He further raised a preliminary objection regarding maintainability of the present anticipatory bail applications and has passed on to this court certified copies of the extract of the order sheet of the trial court and submitted that since accused persons have already put in appearance through their counsel, present bail applications are not maintainable.
6. Mr. Anurag Verma, learned State Counsel has on the basis of case diary submitted that till date, neither the disappeared trucks have been recovered nor it has been established that the beer was actually despatched. It is submitted that considering the gravity of the offence and also the fact that it was not merely a case of non-supply of goods, the investigation was transferred to Crime Branch. He submits that in the charge sheet, it was found that U.B.L., Akhil Sarda, Arvind Padhi and Himanshu Tiwari prepared forged documents, did forgery with common intention as a result of which the State suffered a huge loss of excise revenue. It is submitted that during investigation, a letter dated 18.9.2018 issued by the District Excise Officer, Gautambudh Nagar was collected by the investigating officer which was addressed to the Excise Commissioner, U.P., Allahabad which indicates that BWFL-2B (Bonded Ware House Foreign Liquor-2 Beer), a bonded ware house of United Breweries Limited as well as his transporter were duty bound to deliver the consignment. The possibility of selling the consignment illegally cannot be ruled out and further this act of theirs caused loss to the excise revenue to a great extent.
He further submits that the Magistrate vide order dated 11.4.2019 directed the investigating officer to submit a detailed report regarding the loss of excise duty occasioned in the offence. The investigating officer in its report dated 17.4.2019 mentioned that the two trucks were lost in the transit and loss of excise duty to the State to the tune of nearly Rs.43,23,164/- has been caused. On this ground, the Magistrate, vide order dated 25.4.2019 has foisted security to the tune of Rs.45 lacs to be deposited by the petitioners.
He has invited attention of the court towards various extracts of the case diary, i.e. SCD which reports of fictitious truck and driving licence; SCD 26 which is a report of District Excise Officer, Gautam Budh Nagar; SCD 28 - details required by the investigating officer for verification of import, permit of beer excise duty upon sale of beer; SCD 30 - details required by the investigating officer were not submitted by the company; SCD 32 relates to non-cooperation of the accused persons pointed out by the investigating officer.
7. In these anticipatory bail applications, this Court is concerned only to the prayer made by the applicants' counsel as regards grant of bail; as also the maintainability of the said applications in view of the preliminary objections raised by Mr. Prashant Chandra, learned Senior Advocate appearing for the complainant.
8. As regards maintainability of the anticipatory bail applications, it is admitted case of the parties that the learned counsel have filed vakalatnama(s) before the trial court.
Learned counsel for the respondents has submitted that since by filing vakalatnama, the applicants have appeared through counsel, therefore, the bail applications are liable to be dismissed on this ground alone. In support of his contention, learned counsel relied on judgment dated 21.1.2022 in Ramesh versus State through Dy. RFO, Hosur Section Criimnal Petition No.9975 of 2021 of Karnataka High Court.
9. Per contra, learned counsel for the applicants submits that the vakalatnama (s) were filed only for the purpose of obtaining certified copies of the order prior to the interim order granted by the High Court in favour of the applicants in the petition under Section 482 CrPC No.2005 of 2018 and only thereafter petition under section 482 CrPC was filed. He submits that this will not mean that the applicants have put in appearance before the trial Court. This is an exercise which has to be done in every single case in the High Court as while filing petitions, certified copy of the first information report is must to be enclosed.
10. Judgment in the case of Ramesh (supra) is distinguishable on facts as in that case, the accused was served with summons, appeared through his counsel and sought exemption by filing application under section 205 CrPC which was allowed by the trial court, yet the accused remained absent on 6.10.20211. Then non-bailable warrant was issued against the accused.
11. In the case in hand, the facts are quite distinct. Every applicant for filing application under section 439 CrPC, 438 CrPC or under section 482 CrPC, 483 CrPC has to file certified copy of the first information report and the impugned order of the trial court as per the procedure communicated vide D.O. Letter No.17054 of 2015 dated 1.8.2015 of Senior Registrar of this Court.
12. During course of hearing, some certified copies of the orders passed by the trial court have been given to the court which are taken on record. A perusal of the said orders reveals that vakalatnama(s) were filed by the accused persons through their counsel only. They have not submitted themselves into actual physical custody. Vakalatnamas were filed only for the purpose of obtaining certified copies through their counsel. They have not participated in any effective hearing before the trial court.
Besides, the accused applicants prior to the interim order dated 5.4.2019 passed in 482 CrPC No.2005 of 2019 (supra) had filed vakalatnama for obtaining certified copies of certain orders which are mandatory for filing application under section 438 CrPC as per Do letter of the Senior Registrar, referred to above. One of the accused, namely Himansu Tiwari has also filed application for deferment of hearing through his counsel on the pretext that the petition under section 482 CrPC filed on their behalf is pending before this court. This application was dismissed as not maintainable vide order dated 15.4.2019 of the trial court and later on, the accused persons have deposited adequate security before the trial court by filing personal bond of Rs.50 lacs and have appeared personally in the month of May, 2019. Relevant part of the interim order dated 5.4.2019 is reproduced as under :
"Till that time, no coercive action will be taken against the applicants, subject to condition for deposit of adequate security regarding allegations of tax evasion, if any, fixed by the Court below within a week from today. It is also provided that applicants will not leave the country without permission of the Court below. "
Thus, prior to the interim order granted by this Court, it cannot be said that they have participated in the trial or have been taken into custody by the trial court. After the interim order was passed, which was conditional and the condition was to deposit adequate security., they had appeared and filed personal bond as directed by the trial court, in compliance of the interim order passed by this court. Thus, filing of the personal bond and appearance of the accused after the interim order was in compliance of the interim order. Therefore, it cannot be said that the accused persons have been taken into actual physical custody and any act done by the accused after the interim order was on account of the interim order and as such, it will not disentitle them from moving application under section 438 CrPC. Thus, the objection raised by learned counsel for the complainant is rejected.
11. So far as the second issue is concerned, in peculiar facts of this case, it will be apt to take note of the observation of the Supreme Court which has been made while deciding Criminal Appeal No.840 of 2022 vide order dated 11.7.2022. Relevant paras 7.3 and 7.4 of the judgment are extracted below :
" 7.3 The High Court has quashed the criminal proceedings by observing that there was no loss to the Excise Department. However, the High Court has not at all appreciated the allegations of the larger conspiracy. The FIR need not be an encyclopedia (See Satpal vs. Haryana, (2018) 6 SCC 110 Para 7).
7.4 Even otherwise, it is required to be noted that the allegation of missing of two trucks was the beginning of the investigation and when during the investigation it was alleged that earlier also a number of trucks were missing transporting contraband goods, the FIR should not have been restricted to missing of the two trucks only and return of on the goods thereafter. The High Court has not at all appreciated and/or considered the allegation of the larger conspiracy and that both the FIRs/criminal cases are interconnected and part of the main conspiracy which is very serious if found to be true. We however refrain from making any further observations as at this stage of proceedings as we are at the stage of deciding the application under Section 482 Cr.P.C. only and as the trial of both the cases have yet to take place. Therefore, we refrain from making any further observations which may affect the case of the either of the parties. Suffice it to say and mention that in the facts and circumstances of the case the High Court has committed a grave/serious error in quashing and setting aside the criminal proceedings arising out of Criminal Case No.5694 of 2019 and Case Crime No.260 of 2018 PS lodged under Section 406, registered at PS - Husainganj, District - Lucknow."
A perusal of the aforesaid judgment shows that the Supreme Court has noted the fact that during investigation, it was alleged that earlier also, a number of trucks were missing, transporting contraband goods and the first information report should not have been restricted to the missing of two trucks only. It has been further observed that both the first information reports are interconnected and part of the main conspiracy which is very serious if found to be true.
12. In the backdrop of this observation made by the Supreme Court, coupled with the fact that on a query being made to the State counsel Mr. Anurag Verma as to whether in past, some trucks have disappeared, he has admitted the fact that the evidence has come in the case diary that earlier also, on more than a dozen occasions, the trucks of beer in the same manner have disappeared. The investigating officer in SCD-30 has sought information from the accused persons on seven points so as to correctly assess the excise revenue loss to the State, however, the company has not given any information. Only a vague reply has been received by him.
It has further come in SCD-32 that the transporter provides the truck to UBL and with the connivance of the accused, the transporters forged trucks, drivers, forged driving licence and forged number plates have been done. In the aforesaid SCD 32 dated 27.6.2019, he has concluded that the accused persons have not cooperated in the investigation.
This court has also taken note of the order dated 25.4.2019 which was passed by the Magistrate on the report dated 17.4.2019 of the investigating officer that loss of excise duty to the tune of Rs.43,23,164/- has been caused, although no conclusive opinion has been given by the Magistrate, however, in the light of the order passed by the High Court earlier, the trial court has taken security to the tune of Rs.45 lacs to be deposited by them. Thus, from SCD-18, report of fictitious truck and driving licence is evident. Likewise, from SCD 26, it is evident that recommendation has been made to blacklist SICAL.
13. On another query by the Court, Mr. Anurag Verma, learned counsel for the State has apprised the court that the investigation is closed and no further investigation is underway. Although, he admits that earlier also, a number of trucks have gone missing in such manner, coupled with the observations of the Supreme Court in para 7.4. (supra), it is quite shocking that the State Government has closed the investigation without tracing the earlier missing trucks as also it has clearly come in the police report. The investigating officer ought to have moved application before the trial court seeking permission for further investigation and thereafter should have proceeded to unearth the larger conspiracy and the main conspiracy as observed by the Supreme Court. Accordingly, for these reasons stated hereinabove as also keeping in view the report dated 27.6.2019 of the investigating officer in SCD-32 that the accused persons have not cooperated in the investigation, I am not inclined to enlarge the applicants on anticipatory bail as the applicants being the officers of the United Breweries Limited, though resigned recently, may try to influence not only the further investigation, if made but also they may misuse the liberty, if any granted by the Court, during the pendency of trial.
14. The anticipatory bail applications are, thus, rejected.
(K.S. Pawar, J) Order Date :- 23.1.2023 kkb/