Rajasthan High Court - Jaipur
Jagdish Singh vs State Of Rajasthan Through Pp on 20 May, 2016
Author: Mohammad Rafiq
Bench: Mohammad Rafiq
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN D.B. Criminal Appeal No.219/2016 Jagdish Singh Vs. State of Rajasthan through the Public Prosecutor Date of Order ::: 20.05.2016 Present Hon'ble Mr. Justice Mohammad Rafiq Hon'ble Mr. Justice Vijay Kumar Vyas Mr. Pradeep Chaudhary, counsel for appellant Mr. Anurag Sharma, Additional Advocate General, for the State Mr. Ashwani Kumar Sharma, counsel for National Investigation Agency #### //Reportable// By the Court:-
This appeal under Section 21(4) of the National Investigation Agency Act, 2008, has been filed by appellant Jagdish Singh challenging order dated 21.01.2016 passed by learned Sessions Judge, Jaipur Metropolitan, Jaipur, by which his application for grant of bail under Section 439 of the Code of Criminal Procedure (for short, 'the Cr.P.C.'), has been rejected.
Accused-appellant was arrested in connection with investigation of F.I.R. No.10/2015 registered against him and certain other accused on 30.12.2015 with Police Station C.I.D., Jaipur, for offence under Section 14/24 of the Atomic Energy Act, 1962, Section 379 of the Indian Penal Code and Section 3 of the Prevention of Damage to Public Property Act, 1984 (for short, 'the PDPP Act'). The F.I.R. was registered on the basis of a complaint submitted by Mr. Rama Kant Purohit, Regional Director of Atomic Minerals Directorate for Exploration and Research, Department of Atomic Energy, Jaipur. Allegation against appellant is that he was found in possession of large quantity of beryl ore, which, according to the Notification dated 18.01.2006 issued by the Atomic Energy Department, Mumbai, under Clauses (f) and (g) of sub-Section (1) of Section 2 and Section 3 of the Atomic Energy Act, 1962, in supersession of earlier Notification dated 15.03.1995 published in the Gazette Extra Ordinary dated 20.01.2006, is a 'Prescribed Substance'. His act, therefore, constituted an offence under Section 14 of the Atomic Energy Act, 1962 (for short, 'the Act of 1962').
Mr. Pradeep Chaudhary, learned counsel for appellant has argued that beryl was not included in originally notified list of Prescribed Substances provided under Section 2(1)(g) of the Act of 1962. It was for the first time that the Government of India in its Atomic Energy Department, vide Notification dated 18.01.2006, included the beryl in the list of Prescribed Substances, in which separate designated category 0A3 is provided for non nuclear Other Materials. As per category OA304 thereunder, beryl in the form of emerald and aquamarine is exempted from the category of Prescribed Substances. It is argued that beryl is a mineral, which is found in abundance in the State of Rajasthan in its Ajmer and Bhilwara districts, where large number of mines are alloted for mining of quartz or feldspar. In these mines, beryl is not found separately but it is found chipped with quartz or feldspar. Therefore, it is an incidental mineral, which is found in the mines of Quartz and Feldspar. Since it affects the purity of quartz and feldspar, it is separated by the mine owners and grinding plant owners, manually by employing labours. Beryl is most commonly used world wide in jewellery industry for making ornamental jewellery. The famous stones, like green emerald, aquamarine, goshenite, heliodor and morganite etc., which are used for making jewellery, belong to the beryl family only.
Mr. Pradeep Chaudhary, learned counsel for appellant, argued that mine owners and plant owners are by and large unaware of the wide uses of beryl and the Mining Department of the Government of Rajasthan has also not educated the mine owners or the plant owners, regarding the uses of beryl. Even the common labours employed in different mines and villages, have been collecting and selling such mineral since its value is slightly higher than quartz and feldspar. There are no purchase centers provided by the State Government for purchase of this material. Appellant Jagdish Singh is having grinding plant of quartz, feldspar etc., and is running his business in the name and style of M/s. Saroj Minerals, which is a registered firm under the Rajasthan VAT Act, 2003. Since the beryl is an incidental mineral and is found with quartz or feldspar and usually separated by such owners, certain quantity of beryl was found with the appellant.
Learned counsel argued that the Mining Department has only issued advisory to the mine holders regarding beryl after the registration of the F.I.R. in present case in the month of February, 2016, wherein they have been advised that if beryl is found in the mines, then it may be stored separately and sold to the Atomic Energy Department on the prescribed rate, rather than selling it in the open market. Reliance is placed on Notification No.05/(2015-2020) dated 29.04.2016, recently issued by the Government of India, Ministry of Commerce and Industry, Department of Commerce, Directorate General of Foreign Trade, in exercise of powers conferred by Section 5 and Section 14 A of the Foreign Trade (Development & Regulation) Act, 1992. In the said Notification, Beryl, in Category A304(b), in the form of Emerald, Aquamarine or cut and polished semi precious stones for use in jewellery, has been excluded from the category of 'Prescribed Substance'. It is argued that in the State of Rajasthan, Beryl is most commonly used for making jewellery and it is exported also and that the aforesaid Notification, as per widely published reports in newspapers, has been issued at the persuasion of the State Government.
Learned counsel citing a Full Bench judgment of Patna High Court in Bahadur Kora Vs. State of Bihar 2015 CRI.L.J. 2134, argued that as per ratio of aforesaid judgment, the investigation agency of the State cannot investigate into the matter and that such cases cannot be tried by the court of Sessions as per the provisions of Section 22(3) of the NIA Act. According to the law laid down in that case, the appellant should have been tried as per the normal procedure contained in the Code of Criminal Procedure. Investigation Agency of the State cannot investigate and the court of Sessions under Section 22(3) of the NIA Act cannot try even a scheduled offence according to provisions of the said Act, unless, as per the special procedure envisaged in the said Act, investigation of such cases is entrusted by the Central Government to NIA or the NIA transfers the same to the investigation agency of the State Government. The Full Bench of Patna High Court in the said case directed all the appeals filed under Section 21(4) of the NIA Act to be treated as bail applications under Section 439 of the Cr.P.C. and ordered transfer of the cases to the courts that otherwise have jurisdiction to try them. The offence alleged in this case against appellant therefore would be triable by the court of Magistrate as per the provisions of the Cr.P.C.
It is argued that the appellant is entitled to bail pending trial as he is not having any previous criminal antecedents. Even if judged from the point of view of gravity of offence also, his appeal deserves acceptance because the offence under Section 14/24 of the Indian Atomic Energy Act, 1962, is punishable with a term, which may extend up to five years imprisonment or with fine or with both, and the offence under Section 379 of the IPC is also punishable with maximum term which may extend up to three years imprisonment or with fine or with both and, offence under Section 3 of the PDPP Act is punishable with maximum term of five years imprisonment and fine. Thus, each of the three alleged offences are also punishable with fine alone. Learned counsel, in support of the argument, has relied on judgment of the Supreme Court in Arnesh Kumar Vs. State of Bihar AIR 2014 SC 2756, wherein the Supreme Court has observed that in the matters, which are punishable with imprisonment up to 7 years only, provisions of Section 41 of the Cr.P.C. must be followed and caution must be exercised in resorting to drastic power of arrest. Learned counsel argued that in the present case challan has already been filed and charges have also been framed on 20.04.2016. Appellant was arrested on 06.01.2016 and is in jail for last more than four-and-a-half months. Considering that there are total 59 prosecution witnesses, trial of the case is likely to take a long. There are no chances of appellant fleeing from justice.
Mr. Anurag Sharma, learned Additional Advocate General, appearing for the State, has submitted that ignorance in law cannot be an excuse for not following the mandatory provisions of law. He argued that the accused was found in possession of ten tonnes of beryl ore, which is used in atomic energy and only exception that is provided in the Notification dated 18.01.2006 in category 0A3 of 'other materials', is beryllium windows used for x-ray machines and gamma ray detectors and beryl in the form of emeralds or aquamarines, which is most commonly used in making of semi precious jewellery. But what has been recovered from the possession of the appellant is raw beryl. Learned Additional Advocate General submitted that investigation in the present case was carried out by Special Operation Group (SOG), a State agency, which is very much competent to investigate the offence because one of the offences for which charge-sheet has been filed is punishable under Section 14/24 of the Indian Atomic Energy Act, 1962, which Act has been included at Serial No.1 in the Schedule appended to the Act of 2008. In any case, appellant ought to have raised the question with regard to lack of jurisdiction with the Special Court before that court only, as provided for by Section 20 of the NIA Act. According to Section 20, such objection even after taking cognizance can be considered by the said court and therefore it is always open to the appellant to agitate such issue before the concerned court.
Learned Additional Advocate General submitted that since one of the offences was the scheduled offence, the Officer-in-charge of police station concerned, as per provisions of Section 6(1) of the NIA Act, forwarded the report to the State forthwith. The State Government, as per provisions of Section 6(2) of the NIA Act further forwarded the report to the Central Government on 20.01.2016. The Central Government, as per provisions of Section 6(3) of the NIA Act, was then required to determine within fifteen days from the receipt of the said report whether the offence is scheduled offence or whether having regard to the gravity of the offence and other relevant factors, it was a fit case to be investigated by the agency. Even if the Central Government has not decided to do so, the investigation agency of the State is fully competent to continue with the investigation and file charge-sheet before the special court as per provisions of Section 6(7) of the NIA Act, which provides that till the NIA takes up of the investigation of the case, it shall be duty of the Officer-in-charge of the police station to continue with the investigation. Learned Additional Advocate General further submitted that as per Section 22(1) of the Act, the State Government is empowered to constitute one or more special courts for trial of the scheduled offence and as per Section 22(3) of the NIA Act, jurisdiction conferred by the NIA Act on special court. Unless special court is constituted by the Government under Section 21(1) of the NIA Act, such jurisdiction can be exercised by the Court of Sessions concerned.
Mr. Ashwani Kumar Sharma, learned counsel, has appeared on behalf of the NIA and submitted that he has instructions to make submissions in this matter because, what is decided herein may affect their working. He submitted that the NIA has accepted the judgment of Full Bench of Patna High Court as correct. Unless the investigation of such matter is entrusted to NIA or NIA transfers the same to the investigation agency of the State Government, the investigation agency of the State does not get the power to investigate the matter of such offence in accordance with the provisions of the NIA Act. According to learned counsel, the view taken by the Full Bench of Patna High Court in the said case that cases in which either of the eventuality does not exist, ought to be tried only the court which otherwise has jurisdiction to try them, is correct law propounded by that Court. Learned counsel argued that the Central Government not only from the report received from the State Government but also on the basis of information received from other sources as envisaged under Section 6(3) of the NIA Act, or suo motu with reference to Section 6(5) of the NIA Act, having regard to gravity of offence and other material in its possession, can entrust the investigation of any matter to the NIA. In the present case, even after receiving information, if the Central Government has not entrusted the investigation to the agency, that cannot be a reason to hold that the State agency can nevertheless proceed to investigate the matter and file charge-sheet before Special Court, as per provisions of the NIA Act. It is argued that the NIA Act provides for special procedure of investigation and trial of Scheduled offences, in deviation from what is provided for the Code. This being exception to the Rule, its provisions have to be considered strictly.
Having regard to rival submissions and taking into consideration the fact that accused-appellant has been in jail since 06.01.2016 and the maximum sentence that can be awarded for scheduled offence under Section 14/24 is for a term which can be extended up to five years or fine alone can be awarded as sentence and also for offence under Section 379 of the IPC and the maximum sentence awardable is for the term which may extend to three years, which may also be punished with fine alone, and offence under Section 3 of the PDPP Act may be punished with maximum sentence of five years and fine, and taking into consideration the fact that number of prosecution witnesses being 59, the trial is likely to take a long, we are inclined to enlarge the appellant on bail on his furnishing bail bonds of Rs.2,00,000/- with two sureties, each of Rs.1,00,000/- to the satisfaction of the court concerned.
We are, however, for the present, not dealing with the question of jurisdiction and competence of the court of Sessions to try the present matter in view of what has been provided in Section 20 of the NIA Act, which stipulates that even after taking cognizance of any offence, if a special court is of the opinion that offence is not triable by it, it shall, notwithstanding that it has no jurisdiction to try such offence, transfer the case for the trial of such offence to the court having jurisdiction under the Code of Criminal Procedure and the court, to which the case is transferred, may proceed with the trial of offence as if it has taken cognizance of the offence. That course of action appears more appropriate to us because in Bahadur Kora, supra, the judgment rendered by Full Bench of Patna High Court, investigation in all cases before that court was originally conducted by the agencies of the State Government, which filed the charge sheet in the courts of competent jurisdiction as per the provisions of Cr.P.C. Eventually all such cases were transferred to the Special Courts pursuant to interpretation placed on the provisions of N.I.A. Act by Division Bench of Patna High Court in Asif P.K. Vs. State of Bihar (2015) 1 DLJR 1015, which interpretation the learned Additional Advocate General would commend us to adopt in the present case. It was in those facts that the Patna High Court directed restoration of all such cases to the courts that otherwise have jurisdiction to try them. There was therefore no occasion for the Special Courts in those cases to examine such objection with regard to its jurisdiction under Section 20 of the NIA Act.
We therefore leave it open to the appellant to raise such objection with regard to competence and jurisdiction before the Court of Sessions concerned. If any such objection is raised, the said court shall expeditiously decide the same in accordance with the law.
Appeal accordingly stands allowed.
(Vijay Kumar Vyas) J. (Mohammad Rafiq) J. //Jaiman//10