Bangalore District Court
Cbi Acb vs Mahesh J Biliye on 26 October, 2024
1 Spl.CC. No.15/2014
KABC010136582014
IN THE COURT OF LXXXI ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU (CCH 82)
Present:
Sri Santhosh Gajanan Bhat, B.A.L., LL.B.,
LXXXI Addl. City Civil & Sessions Judge,
Bengaluru City (CCH-82)
(Special Court exclusively to deal with criminal cases
related to former and elected MPs/ MLAs in the State of
Karnataka)
Dated this the 24th day of October, 2024
Spl.CC. No. 15 / 2014
COMPLAINANT: State of Karnataka by CBI,
Anti Corruption Bureau,
Bengaluru
(Smt.K.S.Hema, learned Special
Public Prosecutor)
V/s
ACCUSED: 1. Sri Mahesh J. Biliye @
Mahesh Biliye S/o
Jayawanth Bikoro Biliye
Aged about 64 years
Deputy Port Conservator
Marine Engineer's Office
Director of Ports and Inland
Water Transport, KARWAR
2 Spl.C. No.15/2014
Also R/o : Port Quarter,
EPD-17/C1
Aligadda, Baithkol
KARWAR
2. M/s. Ashapura Minechem
Ltd.,
Jeevan Udyog Building
3rd Floor, 278, Fort Road
Mumbai-400 001
A2 Company is represented
by Company Secretary
Sachin Polke
3. Sri Chetan Shah
S/o Navnitlal Shah
Aged about 65 years
Managing Director
M/s. Ashapura Minechem
Ltd.,
Jeevan Udyog Building
3rd Floor, 278, Fort Road
Mumbai-400 001
Also R/at: No.12, Anupam
Co-Operative Society
Manora Mandir Road
Valkeshwar, Mumbai-400
006
4. M/s. Shree Mallikarjun
Shipping Pvt. Ltd.,
OL of Marces Building
Opp. Kadamba Bus-stand
Mundavel, Vasco-da-gama
Goa-403 802
Accused No.4 Company is
represented by Accused No.5
Satish Krishna Sail
5. Sri Satish Krishna Sail @
3 Spl.C. No.15/2014
Satish Sail S/o Krishna Sail
Aged about 53 years
Managing Director
M/s. Shree Mallikarjun
Shipping Pvt. Ltd.,
R/at: "Mohan", NA-17,
Chittakula
Sadashivgad
KARWAR
Date of offence During the period of 2009-
2010
Date of report of offence 15.3.2010
Name of the complainant As per the orders of Hon'ble
Supreme Court of India in W.P.
(Civil) No.562 of 2009 this case
has been registered
Date of commencement of 11.04.2022
recording of evidence
Date of closing of evidence 06.04.2024
Offences complained of U/s.120-B r/w 409, 420, 379
of IPC and Sec.13(1)(c) & (d)
r/w 13(2) of P.C.Act, 1988
Opinion of the Judge Accused No.1 to 5are found
guilty
State represented by Smt. K.S.Hema, Learned Senior
Public Prosecutor
Accused defended by Sri Vishwanath Sabarad, Advocate
for A1
Sri Jnanesh, Adv for A2 and 3
Sri Murthy Dayanand Naik,
learned Senior Counsel appearing
for Sri Ravindranath Madival, Adv
for A4 and 5
*****
4 Spl.C. No.15/2014
JUDGMENT
This charge sheet has been filed by the Investigating Agency CBI/ACB/ Bengaluru against the accused persons for the offences punishable under Sec.120(B) r/w 409, 420 of IPC and Sec.13(2) r/w 13(1)(c) and (d) of the Prevention of Corruption Act, 1988.
2. The genesis of the above case is that as per the kind intervention of the Hon'ble Apex Court, the CBI authorities were directed to register the aforesaid case and to investigate the same. It has been contended that during the period of 2009-2010 about 88 lakh MT of iron ore was exported by 73 exporters from Belekeri Port which is termed as a seasonal port. During the relevant period, necessary permits were issued by Department of Mines of Geology ('DMG' for short) for transportation of 38 Lakh Tonnes of iron ore only. However, the data reveals of export of about 50 lakh tonnes of iron ore from the said Port was 5 Spl.C. No.15/2014 without valid permits issued by the DMG. The aforesaid aspect was brought to the kind notice of Hon'ble Apex Court by an NGO named Samaj Parivarthan Samudaya by filing necessary Writ Petition (Civil) No.562/2009. On perusal of the materials, Hon'ble Apex Court was pleased to appoint Central Empowered Committee ('CEC' for short) to look in to the issue and to submit its recommendations. The CEC had conducted thorough examination of factual aspects which were prevailing in the mining areas as well as in the Port area and had filed its report dated 27.04.2012 wherein it had recommended to conduct investigation in to the matters by recommending that the matter may be entrusted to CBI. For the purpose of convenience the CEC report which has been submitted to Hon'ble Apex Court on 5.9.2012, in sub-paragraph (iv) at page-14 is hereby extracted which reads as follows:
"The CBI may be directed to further investigate all aspects of the 6 Spl.C. No.15/2014 illegality in respect of the iron ore seized on 20.03.2010 from Belekeri Port by the Forest Department and substantial part of which is alleged to have been illegally exported. All proceedings related to the above matter investigated by the CID, Karnataka including the proceedings in Case No.189/2010 filed by them may be directed to be kept in abeyance."
3. On the basis of the recommendations, the Hon'ble Apex Court has seized upon the matter on 7.9.2012 and had passed order for comprehensive investigation by the CBI in the matters pertaining to the export of iron ore from Belekeri Port, Karnataka, during the period from 1.1.2009 to 31.5.2010 and the Hon'ble Apex Court was pleased to accept the recommendations of the CEC. Further, the Hon'ble Apex Court had accepted that the CBI shall register immediately an FIR and to investigate the case with respect to illegal extraction of about 50.79 Lakh MT of 7 Spl.C. No.15/2014 iron ore from the forest areas of Karnataka during the period 1.1.2009 to 31.5.2010. The illegal transportation of the aforesaid quantity of iron ore from the areas of extraction to the area of its export i.e., to Belekeri Port to other countries. Further, it was also observed by the Hon'ble Apex Court that the quantity of 50.79 lakh MT of iron ore which was illegally exported outside the country and over 8 lakh MT iron ore was found to be lying at Belekeri Port was actually under order of seizure by the forest authorities and the Port before it was exported, was in violation not only of different laws but under the seizure order. Hence, investigation was also ordered to be carried out with respect to illegal export of 8 lakh MT of iron ore from the order of seizure was recommended. Further, it was recommended by the CEC to hand over the investigation to CBI authorities which was accepted by the Hon'ble Apex Court and directed to institute FIRs and carry out intensive 8 Spl.C. No.15/2014 investigation. Further the Hon'ble Apex Court had made it clear that no authority or court shall entertain any challenge to CBI investigation of the case as directed by it.
4. On the basis of the registration of FIR, an intensive investigation was conducted by the CBI authorities and in the instant case a separate FIR came to be registered with respect to illegal transportation of seized iron ore from Belekeri Port in RC 17(A)/2012. On columniation of the investigation, necessary charge sheet came to be filed. It was contended in the charge sheet filed by the CBI authorities that the genesis of the case commenced on 15.3.2010 when Sri G.N.Naik, Range Forest Officer, Ankola had visited Belekeri port and had found huge quantity of iron ore stocked in side the Port area. In this regard, he had prepared a detailed panchanama and recording the proceedings had registered Forest Offence in FOC No.17/2009-10 under Sec.2(7)(b)(iv), 9 Spl.C. No.15/2014 62 and Sec.80 of the Karnataka Forest Act, 1953 and Sec.143 and 162 of Karnataka Forest Rules, 1969 against the then Port Conservator, Belekeri Port who has been arraigned as accused No.1 herein Sri Mahesh J. Biliye as he has failed to produce valid permits or passes which were required for the transportation of iron ore at Belekeri, Port. Subsequently, on 20.03.2010 C.G.Naik, Range Forest Officer with other staff and panchas visited Belekeri port and prepared a panchanama and seizure report showing of iron ore approximately 5 lakh MT. After the seizure, Sri C.G.Naik, the Investigation Officer in FOC Case No.17/2009-10 had handed over the seized iron ore to the Port Conservator on as-is-where-is- basis i.e., to Sri Mahesh J.Biliye vide letter No.983/2009-10 to his safe custody. The said seizure report was also submitted to the learned JMFC Court at Ankola wherein it was stated that the seized materials were in the custody of Port Conservator, 10 Spl.C. No.15/2014 which was accepted by the court and the learned Court permitted to retain the seized iron ore which was under the safe custody of Mahesh J.Bileye, Port Conservator. It is also been contended that subsequently, Sri Narendra G.Hittalamakki, the then ACF, Ankola along with Sri C.G.Naik, RFO, Ankola along with other Forest Officials and panchas visited Belekeri port on 26.3.2010 and 29.3.2010 and marked about 24 heaps of iron ore and drawn necessary panchanama. Among the iron ore heaps, which is relevant to the case on hand was the seizure of one heap containing 17546.07 MT belonged to M/s.Ashapura Minechem Ltd (A2). On the basis of the said mahazar it was contended that the accused persons had entered into criminal conspiracy among themselves and in furtherance of the same, the accused No.4 M/s.Mallikarjuna Shipping Private Limited ('SMSPL' for short) had purchased 17546.07 MT of seized iron ore from M/s.Ashapura Minechem 11 Spl.C. No.15/2014 Ltd (A2) and exported the same to China. The aforesaid act was committed with the active connivance and help of accused No.1 Mahesh J. Biliye who was working as Port Conservator at relevant point of time. It is further narrated that the stock of 17546.07 MT of iron ore fines were found in the premises on 20.3.2010 which was seized by the Forest Department. Further, it was identified and marked as stock No.5 during the relevant point of time. By pointing out the same, it has been submitted that accused No.2 M/s.Ashapura Minechem Ltd (A2) had illegally sold the iron ore to accused No.5 SMSPL, even though they had filed a writ petition before the Hon'ble High Court of Karnataka contending that the materials were seized by the Forest Department. Due to the act of the accused persons a loss of Rs.9,05,91,988/- was caused to the Government exchequer. Immediately, after filing of the writ petition and after exporting the iron ore with the aid and help 12 Spl.C. No.15/2014 of accused No.4 SMSPL for which accused No.5 Satish Krishna Sail was the Managing Director, the company A2-M/s.Ashapura Minechem Limited had withdrawn their writ petition. All the aforesaid activities would clearly indicate a criminal intention being entertained by the accused persons. It is also being stated that accused No.1 Mahesh J.Biliye, the Port Conservator at Belekeri Port in violation of the kind orders dt.22.3.2010 passed by the Court of JMFC, Ankola, had issued necessarily port clearance vide No.45/11 dated 26.5.2010 to Vessel M.B.Columbia and had illegally exported about 44,500 MT of iron ore fines which were included the seized iron ore belonging to M/s. Ashapura Minechem Ltd (A2) and others. Due to the aforesaid act of the accused persons the offences as mentioned above was committed by the accused persons. Accordingly, charge sheet came to be filed.
13 Spl.C. No.15/2014
5. At the inception of the case, accused No.1 Mahesh J.Biliye was secured under body warrant and he was released on regular bail on 14.1.2015. Accused No.3 Chethan Shan was secured under body warrant and he was released on regular bail on 4.3.2015. Accused No.5 Satish Krishna Sail was secured under body warrant and he was released on regular bail on 17.6.2015. Accused No.2 and 4 are companies.
6. Further on completion of investigation, necessary charge sheet came to be filed before the competent court. My predecessor in office had taken necessary cognizance with respect to the allegations which were leveled against the accused persons. The accused persons had appeared before the court in pursuance of the summons ordered against them. My predecessor in office on perusal of the materials on record had proceeded to frame necessary charges against them on 31.7.2021. The accused No.1 was the 14 Spl.C. No.15/2014 Public servant and was also working as Port Conservator was charged for committing offences punishable under Sec.120(B) r/w 409, 420, 379 of IPC and also under Sec.13(1)(c) and (d) r/w 13(2) of P.C.Act. That apart the accused No.2 to 5 are charged for offences punishable under Sec.120(B) r/w 420 and 379 of IPC. Since the accused have pleaded not guilty and claimed to be tried, necessary trial was fixed.
7. The prosecution in order to prove its case had examined totally 39 witnesses as PW1 to 39 and Ex.P.1 to P.169 and Ex.D.1 came to be marked. On completion of the evidence, the statement of the accused came to be recorded as contemplated under Sec.313 of Cr.P.C. wherein the accused have denied all the incriminating materials available against them. The accused have submitted that they do not have any defence evidence and whereas the accused No.1 15 Spl.C. No.15/2014 has filed his written statement along with statement recorded under Sec.313 of Cr.P.C.
8. In the written statement which has been filed by accused No.1, it is stated that he had not committed any offence, nor he was entrusted with custody of alleged seized materials at Belekeri Port by the Forest Department Officials. Further, he has stated that as a dutiful officer he had corresponded with his higher authorities and had brought the illegal seizure being made by the Forest Department and also he had requested them to initiate necessary action in this regard. By pointing out to the aforesaid acts of accused No.1 sought for acquitting him.
9. During the course of arguments learned Senior Public Prosecutor has vehemently canvassed her arguments by contending that the prosecution are able to establish and prove the allegations made in the above case. The learned Senior Public Prosecutor has also filed a detailed written arguments in order to 16 Spl.C. No.15/2014 substantiate her contention. In the written arguments it has been canvassed by the prosecution in detail explaining the culmination of facts which had lead to the filing of the charge sheet and also the trial. It has been stated in detail with respect to the overt act committed by each of the accused person. Learned Senior Public Prosecutor has also stated that accused No.1 Mahesh J.Bileye, Deputy Port Conservator, Belekeri Port was also holding charge of Port Conservator, had issued letter correspondence as Port Conservator of Belekeri Port on 26.3.2010 and 29.3.2010. Sri Narendra Hittalamakki, then ACF, Ankola and C.G.Naik, RFO and other Forest Officials had visited Belekeri Port and marked 24 heaps of iron ore by drawing necessary mahazar. Out of the seized iron ore, one heap belong to M/s.Ashapura Minechem Ltd., which has been arraigned as accused No.2 wherein an extent of 17,546 MT of iron ore came to be seized. The forest officials had registered a case in 17 Spl.C. No.15/2014 Forest Offence Case (FOC) No.17/2009-10 which was under investigation and it is submitted that the M/s.Ashapura Minechem Ltd., had stored iron ore to an extent of 17546 MT at stack No.5 during the period 21.3.2010 to 31.05.2010 and it had also brought 11737.67 MT of iron ore and stored at Belekeri Port. The learned Senior Public Prosecutor in order to buttress her submission has pointed out that accused No.1 Mahesh J.Bileye being Port Conservator has issued port clearance vide No.45/2011 dated 26.5.2010 to vessel M.V.Columbia and M.V.Mandarin Harvest through which accused No.2 M/s.Shree Mallikarjuna Shipping Pvt Ltd., ('SMSPL' for short) illegally exported 44500 MT of iron ore fines which includes the seized iron ore belonging to M/s.Ashapura Minechem Ltd. It is also been submitted by the learned Senior Public Prosecutor that Sanction to prosecute accused No.1 was obtained under Sec.19 of the P.C.Act was in accordance with 18 Spl.C. No.15/2014 law. It is also submitted that accused No.1 Mahesh J.Bileye was working as Deputy Port Conservator, Belekeri Port coming under the Department of Port and Inland Water, for which the Government of Karnataka was the appointing authority as well as the competent authority to remove him from service. It is also been submitted that the Competent Authority by considering the materials placed before it and also by looking in to the charge sheet, had proceeded to accord necessary sanction to prosecute accused No.1 Mahesh J.Bileye which was in accordance with law. She has also pointed out to the document at Ex.P.107 which indicates of according sanction to prosecute accused No.1 Mahesh J.Bileye.
10. The prosecution has also filed written submissions with respect to seizures being made by the Forest Authorities. It is the contention of the prosecution that necessary intimation with respect to seizure and also directions of the learned JMFC, 19 Spl.C. No.15/2014 Ankola with respect to entrusting the same to accused No.1 Mahesh J.Bileye was properly conveyed. Further, the prosecution in order to buttress their contention has stated that the evidence of PW26 R.Gokul who was the Deputy Conservator of Forest at Karwar Division is required to be appreciated wherein he has deposed about directing his officials to verify the lorries transporting mines to the Port. The prosecution has also submitted that the evidence of Forest Authorities i.e., PW1-Vinay Doddamma Panth, PW3 G.N.Naik, PW4 Mohan Sukuru, PW18 Yogesh Anand Shetty, PW16 Nagesh Minnu Goankar, PW7 Mahesh Narayan Gaonkar, PW8 Ashok Ramachandra Naik, PW9- Prakash Somanaik, PW28 Arun Atmaran Pawar, PW11- Jagadish Tandel, PW10 R.Anand, and PW30-M.Ganesha when conjointly read with the documents which are produced by them would indicate about entrusting of seized iron ore to A1- Mahesh J.Bileye and an attempt being made by 20 Spl.C. No.15/2014 employees of M/s.SMSPL to meddle with the seized iron ore at Belekeri port unauthorisedly. It is also been submitted that the evidence of PW16 Nagesh M.Gaonkar who was working as Seamen at Tollgate outside the entrance of Belekeri port would clearly indicate that he had received intimation from the Forest Department which was conveyed to the Port Conservator A1 Mahesh J.Bileye and identified him along with letter at Ex.P.26. The learned Senior Public Prosecutor has also pointed out to the evidence of PW18 Yogesh Anand Shetty, who has also deposed in consonance with the evidence of PW16 Nagesh M.Gaonkar. It has been argued that the seizure report at Ex.P.35 was submitted to the learned JMFC at Ankola, which shows the particulars of the seizure of approximately 5 lakh MT of iron ore which was valued at about Rs.150 Crore.
11. The learned Senior Public Prosecutor also pointed out to the document at Ex.P.20, Ex.P.26, and 21 Spl.C. No.15/2014 Ex.P.35 which were letters addressed to the Forest Department and also the letter at Ex.P63 which was addressed by accused No.1 Mahesh J.Bileye on 24.3.2010 directing shipping companies to follow and comply the orders of Hon'ble Court. By pointing out the same it has been submitted by the learned Senior Public Prosecutor that after instructing the companies to adhere to the rule of law, now he cannot come up with the contention that no necessary intimation was given to him with respect to seizure of iron ore at Belekeri Port.
12. That apart, the learned Senior Public Prosecutor has also pointed out to the various correspondence that were made with the Stevedores by the Port Authorities and also with the Forest Department. The learned Senior Public Prosecutor in her written argument has also submitted that the mahazar dt.15.3.2010 at Ex.P.1 was drawn by the concerned Forest Department authorities and 22 Spl.C. No.15/2014 subsequently on 20.3.2010 another mahazar came to be drawn by the Forest Department officials to measure the extent of iron ore through PW3 G.N.Naik, PW4 Mohan Sukuru and also PW7 Mahesh Narayan Gaonkar and PW8 Ashok Ramachandra Naik, which would clearly indicate of existing quantity of iron ore at Belekeri port.
13. Next, the learned Senior Public Prosecutor has pointed out that the mahazar dt.26.3.2010 at Ex.P.9 had justified their contention and also mahazar dt.29.3.2010 at Ex.P.10 which were drawn were proved by the evidence of PW3 G.N.Naik, PW4- Mohan Sukuru and PW9 Prakash Somanna Naik. The learned Senior Public Prosecutor has also relied upon the mahazar drawn between 26.3.2010 and 29.03.2010 which had identified 24 heaps of iron ore which were measured and later on arrived at a conclusion that approximately 5 lakh MT of iron ore was illegally exported out of country. Thereafter the 23 Spl.C. No.15/2014 prosecution has relied upon another mahazar dt.2.6.2010 at Ex.P.139 wherein the allegation was leveled with respect to meddling with the stored iron ore at Belekeri Port by the officials of M/s.SMSPL and to ascertain about its veracity another mahazar was drawn on 2.6.2010 wherein it was estimated that only 2 lakh MT iron ore was available at Belekeri Port and the same was proved by the evidence of PW3 G.N.Naik, PW4 Mohan Sukuru, PW7 Mahesh Narayan Gaonkar, PW8 Ashok Ramachandra Naik.
14. Learned Senior Public Prosecutor has also pointed out that the mahazars dt.7.8.2010 to 9.8.2010 marked as Ex.P.11 duly proved by the evidence of PW18 Yogesh Shetty, PW10 R.Anand and PW19 Nagesh Bommaiah Gunaga. It was also submitted that the quantity of iron ore was measured using volumetric analysis method. She has also argued that they were not provided with any facilities to carry out the mahazars scientifically during the 24 Spl.C. No.15/2014 relevant point of time, the practice which was in vogue was to measure the same by using volumetric method which was being adopted by the CBI authorities also. Learned Senior Public Prosecutor has also submitted that the provisions of the Karnataka Forest Rules 1969 was properly complied and further the provision of Rule 143 clearly indicates that Forest Produce means any forest produce found in or on the margin of any public road, whether loaded in any conveyance or not, the same has to be construed as Forest produce. With respect to the overt act of accused No.4 M/s.SMSPL, she has stated that PW6-Deepak K.Waigankar has deposed before this court which would establish that accused No.1 Mahesh J.Bileye had went out of his State to furnish necessary assistance to commit irregularities by them. Further, evidence of PW28 Arun Atmaram Pawar, U.Ramachandra Naik and Jagadish Tandel 25 Spl.C. No.15/2014 who are also the signatories to Ex.P.81, were proved in accordance with law.
15. Learned Senior Public Prosecutor also pointed out that the total extent of iron ore which was prevailing at Belekeri Port would establish by her by leading evidence of PW22-Krishna Narayan Keleskar on 11.12.2023. Lastly she has pointed out to the documents through which the export activities were carried out by the accused No.4 Company M/s.SMSPL and as per the bills which are available about 44500 MT of iron ore was shipped out of the country. By pointing out the said aspects she has sought for awarding maximum punishment as contemplated in the provisions of law.
16. Sri V.Sabarad. Advocate appearing on behalf of accused No.1 has also filed written submission wherein he has contended that the prosecution has failed to establish entrustment of seized iron ore to the custody of accused No.1. Sri 26 Spl.C. No.15/2014 V.Sabarad, learned counsel has taken this court through the entire materials which is available on record and has stated that the prosecution have utterly failed to prove the entrustment. It is his contention that the documents which are at Ex.P.5, Ex.P.6 and Ex.P.40 would establish the failure of the prosecution to prove the entrustment. He has also canvassed his arguments that the mahazar which were drawn by CID authorities at the time of conducting the investigation by them was also not in accordance with law. In order to pinpoint the same, he has argued that the mahazar dt.9.8.2010 the witnesses have affixed their signature only on the last page of the mahazar, whereas their signatures are not forthcoming in some of the pages. He has also pointed out that the cross-examination of PW26 R.Gokul would indicate that necessary permissions were obtained to seize the materials which were lying at Belekeri Port. That apart, he has also stated that it 27 Spl.C. No.15/2014 has been elicited during the course of evidence that the quantities which were allegedly seized could not be properly weighed and measured due to their bulkiness. However, the prosecution and also the witnesses have deposed that they had personally verified the heaps and also measured its quantity. The last limb of argument which is addressed by him was that there were no materials to convict accused No.1 who was also holding a high position in the Society by working at the Port would only bring disrepute to the institution. He has argued that the cargo allegedly stolen was to an extent of 1,92,037 MT in all the 3 cases which were pending before this court and as per the charge sheet it would indicate that the materials which were recovered was around 6 lakh MT which would indicate that the investigation was not conducted properly. Lastly it has been argued that the allegations against the has not been proved in accordance with law with respect of arrest, detention 28 Spl.C. No.15/2014 of the accused persons. Was the volumetric analysis adopted and referred by CID authorities through Investigating Officer Mr.Muddumahadevaiah was not totally sync with the story which has been put forth by the prosecution. By pointing out the aforesaid infirmities he has sought for acquitting accused No.1.
17. On behalf of accused No.4 M/s.SMSPL being represented by its Managing Director Mr.Satish Krishna Sail-accused No.5, it is stated that the investigation itself which was conducted was erroneous in the eyes of law. Sri Murthy D.Naik, the learned Senior Counsel appearing on behalf of accused No.4 and 5 has vehemently argued that the invocation of proceedings against the present accused itself was bad in the eyes of law. It is his contention that Belekeri Port was a seasonal Port which would have closed during the period of June to September and also if it was stocking iron ore which would have consumed more 10 lakh MT of iron ore. The learned 29 Spl.C. No.15/2014 Senior Counsel has also pointed out the infirmities in the prosecution case and has argued that a huge demand was created towards iron ore in the international market and local traders and exporters had seized the opportunity to improve their illegal mining activities and also collecting the same they had planned to export to other countries by plundering the natural resources which was available in the country. By pointing out the said infirmities, the learned Senior Counsel has sought for acquittal of accused No.4 and 5.
18. The learned counsel for accused No.1 has relied upon the following decisions:-
(1) Judgment of Hon'ble Apex Court reported in 2022 (1) KarLJ 351 (Ashoo Surendranath Tewari Vs. The Deputy Superintendent of Police, EoW, CBI and another) has argued that mere exoneration of accused No.1 in departmental proceedings is required to be 30 Spl.C. No.15/2014 accepted. It is his submission that the standard of proof in a Departmental Enquiry was not so high as that of a criminal case.
Though preponderance of probability were much lesser than the standard proof which was required for convicting an accused under criminal proceedings. It must be proved that the grounds urged by them were in accordance with law.
However, no such standard of proof was produced.
(2) He has also relied upon the judgment of Hon'ble Apex Court reported in (1988) 4 SCC 302 (State of U.P. Vs. Krishna Gopal and another). The learned Senior Counsel Sri Murthy D.Naik by relying upon the said authority has contended that the court has to weigh and sift the materials available before it and though the standard was on higher probability, there was no substitute absolute standard for measuring the same. 31 Spl.C. No.15/2014
19. That apart the learned Senior Counsel has also argued that there are no materials to indicate the exact entrustment being made to the port officer. It has been submitted by him that the mahazars which were drawn have to be considered conjointly and also the serving of the letter as contended by the prosecution upon the Port Officer with respect to seizure and making him the custodian is required to be established beyond reasonable doubt. Learned Senior Counsel has also taken this court with respect to the mahazar allegedly drawn by PW31 B.S.Muddumahadevaiah who during the course of his cross-examination has given vague reply with respect to identifying the iron ore heaps which were recovered and its quantity. The learned Senior Counsel has also taken this court with respect to the evidence of PW36 Abhay Kochrekar who was the shipping executive of M/s.SMSPL. It is his submission that based on his submission the entire case of the prosecution is relied 32 Spl.C. No.15/2014 upon wherein it is stated that the mahazars as per Ex.P.11 were drawn. However, it is his submission that the evidence of PW36 Abhay Kochrekar does not indicate of any material assistance to the case of prosecution. He has also pointed out to the infirmities which are coming out in the mahzar Ex.P.1 and also at Ex.P.8. The learned Senior Counsel has taken this court to the evidence of PW4 Mohan Sukru Naik who is witness to Ex.P.7 mahazar. It is his submission that during the course of cross-examination certain admissions were obtained from him and in fact he had denied the suggestion of giving any statement at the time of panchanama before the RFO, Ankola. The portion of the statement was readover to him and it was marked as Ex.D.1. As per the contention of the learned Senior Counsel it has been elucidated during the course of cross-examination that the mahazar was drawn near the gate of Belekeri port. By pointing out the said infirmity it has been vehemently argued that 33 Spl.C. No.15/2014 if at all the mahazar was drawn near the gate of Belekeri port, then entire case of prosecution collapses since the case clearly indicates of drawing mahazar at Belekeri port and also seizure of iron ore heaps by the Investigating Agency. That apart he has also pointed out to the evidence of PW39 Biswajit Das who is the Investigation Officer who has categorically admitted that he does not have any idea about the quantity which was seized by the Forest Department and also he had categorically admitted that the quantity which was recovered was determined on visual observation. The learned Senior Counsel by pointing out to the cross-examination of PW8 Ashok Ramachandra Naik has submitted that the cross- examination would clearly indicate that the heaps of iron ore was not at all measured. It is his simple submission that allegedly a mahazar was drawn on 20.3.2010 by the Forest Authorities and subsequently another mahazar was drawn between 26.3.2010 and 34 Spl.C. No.15/2014 29.3.2010. It is his contention that the procedure which was adopted at the time of drawing mahazar was not at all in accordance with settled law and in fact it was stated in the mahazar that based on visual observation the quantum of the iron ore were quantified. Thereafter, he has submitted that a complaint came to be filed by some of the Port officials that the officials of M/s.SMSPL were allegedly meddling with the iron ore stored and seized at Belekeri port. After that another mahazar came to be drawn on 2.6.2010 wherein it was noticed that the total extent of the seized iron which was available at Belekeri Port was only 2 lakh MT out of 8 lakh MT which was seized on 20.3.2010. It is his contention that unless the entire stock which was seized quantified by utilising the scientific method or at least a valid attempt was being made by the competent authorities, it would not be appropriate to accept the contention of the prosecution that the quantum of the 35 Spl.C. No.15/2014 iron ore which was found on 2.6.2010 at the time of alleged mahazar being drawn would not be appropriate.
20. The learned Senior Counsel has also vehemently argued that in the entire case of the prosecution, no whisper has been raised against the customs authority or other persons of the forest department or any other department with respect to playing a conniving role with respect to alleged illegal export of iron ore. It is his submission that for the sake of arguments, if it is to be accepted that certain quantity of iron ore was exported illegally from Belekeri Port, then it would be obvious that the same could not have been exported without the active connivance of the customs authority. However, no fingers are pointed out against them which would once again create serious suspicion over the case of prosecution. He has argued that the court cannot arrive at any conclusion that the entire act was 36 Spl.C. No.15/2014 committed by accused M/s.SMSPL and its Managing Director Satish Krishna Sail in connivance with M/s.Ashapura Minechem Ltd. Even if it is to be accepted that the port authorities in the form of accused No.1 Mahesh J.Bileye had accorded certain permission, then also it would have been appropriate to indicate the active role played by the customs authority towards illegal export of iron ore. Admittedly, it was the customs authority who were supposed to give final clearance of exporting of any cargo from anchorage port.
21. He has also vehemently argued that the provision of Sec.379 of IPC itself is inappropriate. In fact in order to attract the rigors of Sec.379 of IPC firstly the prosecution is required to establish the basic ingredients and in the instant case no materials are brought on record to indicate that the seized products were forest produces. Further, the entire contention which is alleged in the charge sheet would 37 Spl.C. No.15/2014 indicate that certain produce were seized initially by the Forest authorities and the same was taken over subsequently by the CID and later on by the CBI authorities. However, there were no materials to indicate that the quantity of the iron ore which was seized was indeed forest produces. In order to buttress his contention he has pointed out to the evidence of PW26 R.Gokul who had admitted of not obtaining any permission from competent Court to register the FIR with respect to Forest Offences. As such the compliance of Sec.155(2) of Cr.P.C., itself was dented. It is also argued that PW38 Rajashekar has deposed of obtaining prior permission from the competent court to conduct mahazar. However, no such document were produced in this regard.
22. The learned Senior Counsel has also pointed out to invoking of the provision of Sec.420 of IPC and in order to establish the same it is his submission that the prosecution are required to 38 Spl.C. No.15/2014 establish the basic 3 ingredients. However, in the instant case, no such material has been pointed out. In order to buttress his contention he has relied upon the judgment of the Hon'ble Apex Court reported in (2022) 7 SCC 124 (Vijay Kumar Ghai and others Vs. State of West Bengal and others) wherein Hon'ble Apex Court was pleased to held as follows;
"27. Section 415 of IPC define cheating which reads as under: -
"415. Cheating. --Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat"." The essential ingredients of the offense of cheating are:
1. Deception of any person
2. (a) Fraudulently or dishonestly inducing that person- (i) to deliver any property to any person: or (ii) to consent that 39 Spl.C. No.15/2014 any person shall retain any property; or (b) intentionally inducing that person to do or omit to do anything which he would not do or omit if he were no so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body,mind,reputation or property.
28. A fraudulent or dishonest inducement is an essential ingredient of the offence. A person who dishonestly induces another person to deliver any property is liable for the offence of cheating.
29. Section 420 IPC defines cheating and dishonestly inducing delivery of property which reads as under: -
"420. Cheating and dishonestly inducing delivery of property. --Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
30. Section 420 IPC is a serious form of cheating that includes inducement (to lead or move someone to happen) in terms 40 Spl.C. No.15/2014 of delivery of property as well as valuable securities. This section is also applicable to matters where the destruction of the property is caused by the way of cheating or inducement. Punishment for cheating is provided under this section which may extend to 7 years and also makes the person liable to fine.
31. To establish the offence of Cheating in inducing the delivery of property, the following ingredients need to be proved:-
1. The representation made by the person was false.
2. The accused had prior knowledge that the representation he made was false.
3. The accused made false representation with dishonest intention in order to deceive the person to whom it was made.
4. The act where the accused induced the person to deliver the property or to perform or to abstain from any act which the person would have not done or had otherwise committed."
23. That apart he has also argued that the absence of fraudulence, dishonesty and intentional 41 Spl.C. No.15/2014 inducement would clearly debase the entire offence of cheating for which he has relied upon the judgment of Hon'ble Apex Court reported in (2023) 3 SCC 423 (Deepak Gaba and others Vs. State of Uttar Pradesh and another) wherein it was held as follows:
"14. Thus, criminal breach of trust would, inter alia, mean using or disposing of the property by a person who is entrusted with or otherwise has dominion. Such an act must not only be done dishonestly, but also in violation of any direction of law or any contract express or implied relating to carrying out the trust.
15. However, in the instant case, materials on record fail to satisfy the ingredients of Section 405 of the IPC. The complaint does not directly refer to the ingredients of Section 405 of the IPC and does not state how and in what manner, on facts, the requirements are satisfied. Pre- summoning evidence is also lacking and suffers on this account. On these aspects, the summoning order is equally quiet, albeit, it states that "a forged demand of Rs. 6,37,252.16p had been raised by JIPL, which demand is not due in terms of statements by Shubhankar P. Tomar and 42 Spl.C. No.15/2014 Sakshi Tilak Chand". A mere wrong demand or claim would not meet the conditions specified by Section 405 of the IPC in the absence of evidence to establish entrustment, dishonest misappropriation, conversion, use or disposal, which action should be in violation of any direction of law, or legal contract touching the discharge of trust. Hence, even if respondent no. 2 - complainant is of the opinion that the monetary demand or claim is incorrect and not payable, given the failure to prove the requirements of Section 405 of the IPC, an offence under the same section is not constituted. In the absence of factual allegations which satisfy the ingredients of the offence under Section 405 of the IPC, a mere dispute on monetary demand of Rs. 6,37,252.16p, does not attract criminal prosecution under Section 406 of the IPC.
16. In order to apply Section 420 of the IPC, namely cheating and dishonestly inducing delivery of property, the ingredients of Section 415 of the IPC have to be satisfied. To constitute an offence of cheating under Section 415 of the IPC, a person should be induced, either fraudulently or dishonestly, to deliver any property to any person, or consent that 43 Spl.C. No.15/2014 any person shall retain any property. The second class of acts set forth in the section is the intentional inducement of doing or omitting to do anything which the person deceived would not do or omit to do, if she were not so deceived. Thus, the sine qua non of Section 415 of the IPC is "fraudulence", "dishonesty", or "intentional inducement", and the absence of these elements would debase the offence of cheating.11 Explaining the contours, this Court in Mohd. Ibrahim and Another v. State of Bihar and Others, observed that for the offence of cheating, there should not only be cheating, but as a consequence of such cheating, the accused should also have dishonestly adduced the person deceived to deliver any property to a person; or to make, alter, or destroy, wholly or in part, a valuable security, or anything signed or sealed and which is capable of being converted into a valuable security."
24. By pointing out the aforesaid judgments, he has tried to indicate and impress upon this court that no material evidence is placed which could be construed as reliable material as laid down by the 44 Spl.C. No.15/2014 Hon'ble Apex Court in the judgment reported in 1957 SCCOnLine SC 13 (1. Vadivel Thevar 2. Chinniah Servai Vs. State of Madras). It is his submission that since the computer extracts are not supported by mandatory certificates issued under Sec.65-B of Indian Evidence Act, the same cannot be looked into by this Court.
25. That apart he has also argued that as per the provision of Sec.62-A of the Karnataka Forest Act, investigation is to be conducted by an officer not below the rank of RFO which is thoroughly violated in the instant case. Admittedly as per Ex.P.4 the FIR was registered under Forest Act. Hence, the compliance of Sec.62(A) of Karnataka Forest Act was not made. He has also pointed out to the evidence of Investigation Officer PW39 Biswajit Das. It is his submission that the evidence of I.O. would clearly indicate of investigation being conducted in a callous manner, wherein he had failed to collect any relevant materials 45 Spl.C. No.15/2014 with respect to the above case. By pointing out the aforesaid aspects he has submitted that the entire case of the prosecution does not bear any semblance towards commission of the offence by the accused persons. Unless the prosecution establishes beyond reasonable doubt that the accused No.4 M/s.SMSPL by its Managing Director accused No.5 Satish Sail had entered into a criminal conspiracy with accused No.2 M/s.Ashapura Minechem Ltd., and they in turn in furtherance of their criminal conspiracy had agreed to commit theft of seized iron ore at Belekeri Port with the able assistance and connivance of accused No.1 Mahesh J.Bileye the then Port Officer and later on exporting the same with his support and aid by accused No.4 and 5, the prosecution cannot seek for an order of conviction. It has been vehemently argued that the entrustment to the hands of Port Officer at the inception itself is not established by the prosecution and as such the accused are entitled for 46 Spl.C. No.15/2014 benefit of doubt and accordingly, he has sought for acquitting accused No.4 and 5.
26. The learned counsel for accused No.2 and 3 M/s.Ashapura Minechem Ltd., and Mr.Chethan Sha has filed written arguments in order to substantiate their contention. It has been submitted by accused No.2 and 3 that they were not involved in any offence as alleged against them. It is their contention that the accused No.2 and 3 were not the exporters, nor they had exported any iron ore from Belekeri port. It is submitted that initially around 5000 MT of iron ore belonging to them was seized at Belekeri Port without there being any materials available against them and even their application seeking for its release came to be dismissed by the JMFC court as per Ex.P.134. Being aggrieved by the same, they had preferred W.P.No.14552/2010 before the Hon'ble High Court of Karnatka As per Ex.P.100 wherein the Hon'ble High Court was pleased to pass an interim order directing 47 Spl.C. No.15/2014 the Forest and Port officers to release 17549 MT of iron ore on obtaining indemnity bond and also after satisfactory verification of documents. It is their contention that though theey had requested the Port officials to verify the same, nothing was done in this regard and even PW35 Takat Singh and PW34 Santhosh Menon have admitted about the same. After waiting for reasonable time and getting knowledge that the officials were deliberately delying the verification of documents, they had sold the materials from the Plot to M/s.SMSPL as per the invoice at Ex.P.132. Further, it has been submitted that the accused No.2 company was arraigned as accused in Cr.No.189/2010 for theft of iron ore which was challenged before the Hon'ble High Court, Circuit Bench at Dharwad in Crl.P.No.7646/2010 which was withdrawn on 3.11.2010. It has been submitted that much prior to the seizure accused No.2 company had purchased the iron ore which was reflected in 48 Spl.C. No.15/2014 Ex.P.115 and Ex.P.131 from M/s.Vaishnavi Minerals and further, it is submitted that accused No.2 and 3 were having nothing to do with the DMG permit and forest clearances and hence, the contention of the prosecution with respect committing offence under Sec.420 of IPC and under Sec.379 of IPC was not justified.
27. It is also been submitted that as per the kind orders of the Hon'ble Apex Court the investigation was entrusted to CBI authorities to investigate on illegal extraction of iron ore from Forest areas in the State of Karnataka and its illegal transportation. It is also been submitted that I.O. had clearly admitted in his cross-examination that he had not investigated as to the place of origination of the minerals. It their contention that they had sold the iron ore locally on as is whereis basis and it was the duty of the Port Conservator to control the same. It is also been submitted that as per Ex.P.21 letter 49 Spl.C. No.15/2014 dt.21.6.2010 the Superintendent of Customs had sent a letter to Assistant Conservator of Forest, Ankola about the legal aspects and had stated that the seizure itself was bad under the eyes of law. It is also submitted that accused No.3 being the Chairman, had never participated in the entire transaction and one Mr. Vaize Ahmed and Sharath Kumar were looking after the entire transaction which would indicate that Accused No.3 being the Chairman had not done anything either on behalf of accused No.2 company or in his personal capacity. In the absence of any document to prove the participation of accused No.3 in the entire transaction as it was admitted by the I.O. that during the course of investigation, he did not find any materials/ personal communications being made Chethan Shah, it is submited that no liability can be fastened upon him. In order to substantiate their contention, the learned counsel for accused No.2 and 3 has relied upon the judgment of 50 Spl.C. No.15/2014 the hon'ble Apex Cout reported in (A.M.Mohan Vs. the State represented by SHO and another) in SLP (Crl) No.9598/2022 dt.20.3.2024 and another judgment rendered in (2015) 4 SCC 609 (Sunil Bharati Mittal Vs. CBI) and sought for acquitting them.
28. Heard the argument of the learned Special Prosecutor and also the learned counsel for accused persons. Perused the oral and documentary evidence on record. Now the points that arise for my consideration are:-
1)Whether the prosecution proves beyond reasonable doubt that the sanction accorded by prosecute accused No.1 Mahesh J.Biliye under the provision of the Prevention of Corruption Act is valid and proper?
2)Whether the prosecution proves beyond reasonable doubt that the accused No.1 to 5 had entered into criminal conspiracy to cheat and defraud the government and in furtherance of such dishonest intention to cheat and defraud the Government, the accused No.4 M/s.SMSPL represented by accused No.5 Satish Krishna Sail had 51 Spl.C. No.15/2014 purchased iron ore heaps seized by Forest Department authorities at Belekeri Port on 15.3.2010 to the extent of 17,546 MT belonging to M/s.Ashapura Minechem Ltd., and in furtherance of the criminal conspiracy entered into between accused No.2 to Accused No.5, the accused No.1 had permitted them to export the same illegally and thereby committed offence punishable under Sec.120-B of IPC?
3)Whether the prosecution proves beyond reasonable doubt that accused No.1 Mahesh J.Biliye being Public Servant working as Port Conservator who was entrusted with iron ore heaps of 17546 MT iron ore fines seized by the Forest Department, who was permitted by the learned JMFC at Ankola to retain the same and in furtherance of the criminal conspiracy, he had permitted accused No.2 to 5 dishonestly and fraudulently misappropriate and convert and to utilise the same for their own use and thereby caused wrongful loss to the Government and committed offence punishable under Sec.409 r/w 120-B of IPC?
4)Whether the prosecution proves beyond reasonable doubt that the accused No.1 Mahesh J.Biliye being public servant and working as Port Conservator during the period of March to May 2010 at Ankola, had 52 Spl.C. No.15/2014 entered into criminal conspiracy with accused No.2 to 5 and permitted them to misappropriate and use the 17546 MT of iron ore fines, entrusted to him, which was illegally exported by accused No.5 and thereby committed criminal with misconduct punishable under Sec.13(1)(c)&(d) punishable under Sec.13(2) of P.C.Act?
5)Whether the prosecution proves beyond reasonable doubt that accused No.1 to 5 in furtherance of criminal conspiracy entered in to between them during March to May 2010, had fraudulently and dishonestly, to cheat the Government, illegally sold and exported the seized iron ore weighing 17546 MT, which was exported by accused No.4 M/s.SMSPL illegally and thereby committed offence punishable under Sec. 420 r/w 120-B of IPC?
6)Whether the prosecution proves beyond reasonable doubt that accused No.1 to 5 in furtherance of criminal conspiracy entered in to between them during March to May 2010, had fraudulently and dishonestly sold and exported the seized iron ore heaps of 17546 MT, which was exported by accused No.4 M/s.SMSPL illegally and thereby committed offence punishable under Sec. 379 r/w 120-B of IPC?53 Spl.C. No.15/2014
7)What order?
29. After hearing the argument of both the parties and on considering the oral and documentary evidence on record and also the principles of law laid down in the decisions relied on by both the parties, my findings on the above points are as hereunder:
Point No.1: In the Affirmative Point No.2: In the Affirmative Point No.3: In the Affirmative Point No.4: In the Affirmative Point No.5: In the Affirmative Point No.6: In the Affirmative Point No.7: As per final order for the following:
REASONS
30. Before adumbrating to the factual aspects of the case, it would be appropriate to appreciate the evidence which has been recorded in the above case.
31. PW1 Vinay Doddamma Panth, who was working as daily wage labourer in the office of Range Forest Officer, Ankola, has deposed that on 15.3.2010 54 Spl.C. No.15/2014 Sri. G.N.Naik, Section Forester took him to Belekeri port along with Chandrashekar Honappa Naik, daily wage labourer, Mohan Naik, Forest guard and G.N. Naik, Section Officer to Belekeri port, where they found stacking of Iron Ore and on measuring the heaps of iron ore they had prepared mahazar as per Ex.P.1. He has identified his signature. He was considered as partly hostile witness. During the course of cross-examination by learned Public Prosecutor he has admitted about the contents of the mahazar in Kannada Language. However, he denied the suggestion of meeting Mahesh Biliye, the then Port Conservator. However he had identified that Mr.G.N.Naik had enquired about the permimits and passes and has denied the suggestion that the Port Conservator was unable to produce the permits and passes with respect to the iron ore stored at Belekeri Port. Apart from that nothing much is elicited from him.
55 Spl.C. No.15/2014
32. PW2 Ekanath Narayan Jambavalikar, who was working as Sales Executive and also mahazar witness has deposed that the concerned police had obtained his signature on some document which was mahazar at Ex.P.3 and he has feigned his ignorance with respect to its contents. He was considered as hostile and nothing much is elicited from his mouth during the course of cross-examination by learned Public Prosecutor. During the course of cross- examination by learned counsel for accused No.1, the witness had admitted of visiting Dy.S.P. office and also admitted that he was present at the time of preparing mahazar and it is his specific statement that he was standing outside the Port Office.
33. PW3 Ganapathi Nagappa Naik, retired Section Forest Officer, has deposed of visiting Belekeri port on 15.3.2010 along with Mohan Sukru Naik, Panchas Chandrashekar Vannappa Naik and Vinay Doddathamma Pant and has deposed that they had 56 Spl.C. No.15/2014 found huge quantity of Iron Ore dumped inside the Port premises and on enquiry with Port Conservator Sri Mahesh Biliye about Forest Pass and permit, he was unable to produce the same and accordingly, they had conducted mahazar as per Ex.P.1 and on the basis of the same he had registered Case in Forest Case No.17/2009-10 on 15.03.2010 and handed over the case file to Sri. C.G.Naik, R.F.O. Ankola for investigation. He has further deposed that Mr.C.G.Naik had sent FIR to JMFC, Ankola, wherein permission was granted to investigate the case on 15.3.2010 and later on he had handed over the case file to C.G.Naik. He has further deposed that Mr.C.G.naik sent the FIR to JMFC, Ankola, wherein permission was granted to investigate the case and on 18.3.2010 as per Ex.P.5. Accordingly, on 20.03.2010, he had accompanied Sri. C.G. Naik, R.F.O. to Belekeri Port along with Panchas and found 24 heaps of Iron Ore dumped in the Belekeri Port and they had seized 57 Spl.C. No.15/2014 the same and handed over to Sri. Mahesh Biliye, Port Conservator, Belekeri Port for safe custody, wherein he had made an endorsement on the letter dt.20.03.2010 as per Ex P-6. He has also identified the mahazar at Ex.P.7. It is his evidence that they had estimated 5 lakhs M.T. of Iron Ore kept in heaps inside the Belekeri Port area. He has further deposed that on 26.03.2010, once again he went to Belekeri Port along with Mohan Sukra Naik and drawn Mahazar identifying heaps No.1 to 7 which were approximately containing 1,43,000 M.T. of Iron Ore and he has also deposed of drawing another mahazar as per Ex.P.8 for which necessary signature of witness were obtained and another mahazar on 29.3.2010 as per Ex.P.9. It is his evidence that on 29.03.2010 they had identified heap No.8 to 24 approximately containing about 3,57,000 M.T. of Iron Ore and had directed the Port Conservator to maintain status quo with respect to the iron ore seized. It is his evidence 58 Spl.C. No.15/2014 that they had visited Belekeri Port on 07.08.2010 and wherein measurement of the heaps was made between 07.08.2010 to 09.08.2010 as per Ex.P.10. Later on during the course of cross-examination he has admitted that Belekeri Port was under the Control of Port Conservator and he do not know whether the said place was leased out by the Government of Karnataka. He has denied the suggestion that no iron ore were identified by them. It is his evidence that they had not registered case against steve dores and he does not have personal knowledge as to who had stocked iron ore at Belekeri Port. He has also admitted that they had not mentioned height, circumference of the heaps of iron ore, but he has denied the suggestion that they had not handed over iron ore to the custody of Mahesh Biliye. He was subject to cross-examination by the learned counsel for accused No.2 and 3, wherein he has admitted that they had not received any request from higher officer 59 Spl.C. No.15/2014 to visit Belekeri Port nor they got any instruction to measure iron ore. It is his specific evidence that they had not measured the quantity of iron ore on 15.3.2010 and has deposed of registering FIR on the direction of his Senior Officer and they had not obtained any permission from the Court to conduct the mahazar. He has deposed of finding about 24 heaps of iron ore at Belekere Port on 20.3.2010 which they had seized and they had not measured each heap independently.
34. Later on PW3 was again recalled by the prosecution wherein he has deposed about drawing mahazar on 2.6.2010 as per Ex.P.178 wherein he has deposed that on extent of 2 lakh MT of iron ore was available at the time of drawing the mahazar. During the course of further cross-examination by learned counsel for accused No.2 and 3, he has admitted that the quantum was determined approximately based on 60 Spl.C. No.15/2014 the visual observation and also they had measured a tape.
35. PW4 Mohan Sukru Naik is the another Forest Department official deposed of visiting Belekeri Port on 15.3.2010 along with Sri G.N. Naik, Forester and Panchas Chandrashekar Honnappa Naik and Vinay Doddathamma Pant and when they visited Belekeri Port they found huge heaps of Iron Ore dumped inside the Port premises. Later on they had inspected the place and Mr. G.N. Naik, Forester had registered F.I.R., prepared Mahazar since there was illegal transportation of Iron Ore as per Ex P-1. When Mr.G.N. Naik enquired with regard to dumping of Iron Ore at Belekeri Port, the Port Officer has not produced any documents. I cannot say the name of Port Officer and has also deposed that the mahazar was drawn as per Ex.P.7 and they have found around 5 lakh MT of iron ore approximately at the spot and had requested the Port Officer at Belekeri to maintain 61 Spl.C. No.15/2014 status quo of the iron ore heaps. He has also deposed that again on 26.3.2010 they had visited Belekeri Port and another mahazar as per Ex.P.8 was seized wherein they had found about 1,43,000 MT of iron and once again on 29.3.2010 they had visited Belekeri Port and they had drawn another mahazar as per Ex.P.9 and Ex.P.10. He was considered as partly hostile witness and subjected to cross-examination wherein he had admitted that out of 60 heaps of iron ore, 24 heaps of iron ore were seized and marked and they have decided to handover to the custody of Mahesh Biliye, Port Conservator. Further, he has admitted that Forest Officials had registered case in FOC 17/2009-10 against Port Conservator and on 20.3.2010 he found Mr.R.Gokul, Deputy Conservator of Forest, Mr.N.G.Hittalamakki present at Belekeri Port. He was subjected to cross-examination by the learned counsel for accused persons. 62 Spl.C. No.15/2014
36. PW5 N. Parvathi, was the Under Secretary to Government of Karnataka, who had produced the letter through which original lease agreement dt.6.3.2006, 25.8.2009 and 29.4.2010 entered between Government of Karnataka and Mr.Satish Krishna Sail, the Director of M/s.SMSPL were entered as per Ex.P.13 to 15.
37. PW6 Deepak Waigankar has deposed that he was promoted as Superintendent of Ports and Inland Water Transportation at Karwar and one Mr.Ganesh was the Director of Port in the year 2010 and at that time he was working as SDC in the office of Director of Port and wherein he was called and directed to assist the Port Conservator in controlling the movements of Lorry dumping in the Port Area. He has also deposed of noticing seized iron ore near weigh bridge No.3 being removed partly and site belonged to M/s.SMSPL. During the course of cross- examination, he has deposed a letter dt.24.4.2010, 63 Spl.C. No.15/2014 26.4.2010 and another letter of even date was given to Mr.Pawar, the present Port Conservator. Apart from that nothing much has been elicited from him.
38. PW7 Mahesh Narayana Gaonkar has deposed that on 20.3.2010 he was requested by G.N. Naik and Mohan Sukru Naik had requested to accompany them to Belekeri Port and they had taken the measurement of the heaps of Iron ore and necessary mahazar was drawn which was readover to him, which indicated that about 5 lakh MT of iron ore was stored at the Port as per mahazar Ex.P.7. Further, it is his evidence that after about 2 ½ months, he was informed about missing of iron ore and accordingly, G.N.Naik had requested him to accompany him wherein they had once again measured the iron ore and found that it was only around 2 lakh MT and again a mahazar was drawn. During the course of cross-examination he has feigned his ignorance about the time at which they 64 Spl.C. No.15/2014 had reached the Belekeri port and he has denied the suggestion that no mahazar was drawn nor they had taken any measurement. Learned counsel for accused No.4 and 5 has extensively cross-examined him, wherein he had admitted that he had affixed signature at Ex.P.7 which was written by Mohan naik and G.N.Naik. However, he had denied the suggestion that they had arrived at conclusion of 5 lakh MT available at Belekeri Port on the basis of assumption and presumption. However, he has also admitted that he had stated in his 161 statement that Mr.G.N.Naik had approximately determined the extent of iron ore at 5 lakh MT. He has also admitted that Belekeri Port was attached to Arabian Sea and the Port consisted of other heaps of iron ore on that day, apart from one which was measured by Mr.G.N.Naik. Further, it was also admitted that there would heavy wind at Port as it was attached to Arabian Sea and has denied the suggestion of water logging in the Port. 65 Spl.C. No.15/2014
39. PW8 Ashok Ramachandra Naik was also another mahazar witness, who has deposed about the mahazar at Ex.P.7 about reaching the Belekeri Port on 20.3.2010 at the request of G.N.Naik. He has deposed that they had measured the iron ore heaps which were to an extent of 5 lakh MT. It is his evidence that again on 2.6.2010 Mr.G.N.Naik Forester had requested them to come to Belekeri Port as the heaps of iron ore was found to be reduced and on measurement they had noticed that it was only to the extent of 2 lakh MT. During the course of cross- examination by accused No.1 nothing much was elicited. However, during the course of cross- examination by accused No.2 and 3, it was suggested that the heaps of iron ore were not weighed, for which the witness has deposed that the heaps of iron ore were circled with white powder and heaps were measured by using sticks. He has also admitted of giving evidence in connected case about 5 years back 66 Spl.C. No.15/2014 wherein he was examined in that case. Further, he has admitted the suggestion that on 2.6.2010 Mr.G.N.Naik had measured the iron ore by looking at it and he has stated that it may be around 2 lakh MT.
40. PW9 Prakash Somanaik has deposed of visiting Belekeri Port on 26.3.2010 at the request of Mr.G.N.Naik as pancha witness and when went inside he has noticed the presence of Mr.Narendra Hittalamakki, Mr.C.G.Naik and in their presence heaps of iron ore were measured by putting a circle around the heap and after the measurement was completed with respect to 7 heaps of iron ore which was calculated to be 1,43,000 MT and mahazar was drawn as per Ex.P.8. Again on 29.3.2010, he was requested to mahazar witness and another mahazar was drawn as per Ex.P.9 with respect to heaps at Sl.No.8 to 24 containing 3,57,000 MT. Nothing much was elicited during the course of cross-examination by accused No.1 and with respect to accused No.2 he 67 Spl.C. No.15/2014 has deposed that on an earlier occasion he has deposed that there about 100 heaps of iron ore and some of the lorries were loading and unloading the iron ore which were lying adjacent to each other. Further, the quantity was mentioned by measuring it approximately. It was suggested to him that the measurements were made on assumptions and presumptions for which the witness has deposed that they were weighed, but they were taped and measured.
41. PW10 R.Anand who worked as Seaman at Belekeri Port, deposed that he used to work at the toll and used to collect vehicle levy. It is his evidence that on 24.03.2010, he had received a letter from the Forest Department, for which he has affixed his signature towards receiving the same as per Ex P.17. In the month of August 2010 the staff of the Forest Department, Police Department and some other local persons had visited Belekeri Port and had conducted 68 Spl.C. No.15/2014 mahazar of the heaps of Iron Ore as per Ex.P.11. During the course of cross-examination by learned counsel for accused No.1 and 5, nothing much elicited from him. During the cross-examination by accused No.2 he has submitted that the heaps of iron ore were not measured in his presence.
42. PW11 Jagadish Tandel has deposed that he was Engine Driver in the year 2010 and was working at Belekeri Port and he was deputed during the relevant point of time and Mr.Ramachandra Naik was also working with him to look after the iron ore heaps. It is his evidence that on 26.4.2010 he had noticed officials of M/s.SMSPL loading iron ore and in spite of their directions not to load the same, but they had continued and as such it was reported to Port Conservator as per letter at Ex.P.18. Again on 28.4.2010 the same act was repeated by M/s.SMSPL who had marked afresh the iron ore heaps by chalk powder, which was again reported as per Ex.P-19. 69 Spl.C. No.15/2014 During the course of cross-examination he has feigned his ignorance about the extent of 81,000 Sq. Mts of area was given to M/s Mallikarjuna Shipping Pvt. Ltd. He has categorically admitted the same. However, he has denied the suggestion that the employees of M/s.SMSPL had not loaded recovered iron ore at Belekeri. Apart from that nothing much was elicited from him.
43. The evidence of PW12 Vinod Kumar Pandey and PW13 Gouse Ali and PW14 Vinayak R. Naik have been conducted by following the procedure as encumpassed under Sec.296 of Cr.P.C., by filing affidavit since they were only the link witnesses.
44. PW15 N.Y. Sagar has deposed about the issuance of notifications for appointing C.Swamy as Port Officer and other relevant documents indicating of transferring Mahesh J.Bileye to the post of Deputy Conservator at Belekeri Port.
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45. PW16 Nagesh M.Gaonkar who is also the worker at Belekeri Port has deposed that a vehicle levy of Rs.6/- used to be collected from lorries carrying iron ore to the Port and he used to issue receipt towards the same. He has deposed of receiving letter on 20.3.2010 from Forest Department officials and identified the same as Ex.P.30 which he handed over to accused No.1 Mahesh Biliye. It is his evidence that on the same day he had received another letter from Forest Department, for which he has issued necessary endorsement and the letter was as per Ex.P.31. He has deposed that on 7th or 8th of August 2010 some officers of CID and DMG had come to the Port to conduct mahazar and they had taken measurement of Manganese Ore which were prevailing at Belekeri Port. During the course of cross-examination nothing much elicited from him.
46. PW17 Suresh Dattur Shetty was the Director of Ports, Mangalore Port Office and has 71 Spl.C. No.15/2014 deposed that he worked as Port Conservator at Belekeri. It is his evidence that Belekeri Port consisted of 100 Acre of stacking area which the government had leased to 4 companies namely M/s Aadani Enterprises Ltd., M/s Mallikarjuna Shipping Ltd., M/s Salgoankar Mining and M/s Rajmahal Silks. He has deposed of handing over 3 volumes of documents and correspondences to the CBI authorities.
47. PW18 Yogesh Anand Shetty has deposed that in the month of October 2007 he was promoted as Deputy Port Conservator and was deputed to Belekeri Port, wherein accused No.1 was working as Deputy Port Conservator, he has deposed about the procedural aspects and the manner in which the permits will be issued. Further, it is his evidence that Mr.N.M. Gaonkar received a letter dated 20.03.2010 from Range of Forest Officer, Ankola for having handed over 5 lakhs M.T. of Iron Ore seized by the Forest Department for safe custody as per Ex.P.30. He 72 Spl.C. No.15/2014 has also deposed that accused No.1 might have seen the letters and Mr.Mahesh Biliye has written letter on 23.3.2010 to Deputy Conservator of Forest, Dharwad mentioning about the earlier correspondence on 20.3.2010 and had informed about the seizure of iron ore by Forest Officials on as is where is basis. He has also identified initials made by accused No.1 Mahesh Biliye for receiving the letter. It is his evidence, they had received a letter from Forest Department with respect to seizure of the property at Ex.P.17 which was received by R.Anand by affixing his initials. He has also identified the correspondences which were made by Mr.Mahesh Biliye to the Shipping Companies to follow and adhere to the orders of the Hon'ble High Court. He has also identified the attendance register and apart from that nothing much has been elicited from him. During the course of cross-examination he has denied the suggestion that the initials on letter at Ex.P.40 was not made by Mahesh Biliye. However, he 73 Spl.C. No.15/2014 has admitted that he was not present at the time of drawing mahazr. He has also admitted the suggestion that accused No.1 Mahesh Biliye had addressed a letter to Deputy Conservator of Forest, Karwar on 23.3.2010 stating that the seizure of iron ore will come within ambit of stevedores. He was subjected cross-examination by the learned counsel for accused No.4 and he has admitted that there were no devises available in the Port to weigh the quantity of iron ore and with respect to measuring the quantity by using Bamboo sticks and tapes, the witness has deposed that the same method was adopted by the Department of Mines of Geology. He has also identified that as per Ex.P.49 quantity of unseized materials were also mentioned and he had not personally handled the shipping bills. During the course of cross-examination by the learned counsel for accused No.2 and 3 he has feigned his ignorance with respect to the contents of letter dated 20.3.2010 74 Spl.C. No.15/2014 as per Ex.P.31 and has also admitted that personally he does not know the reason for seizure of iron ore at Belekeri Port.
48. PW19 Nagesh B.Gunaga is also another mahazar witness and has deposed that on 7.8.2010 the then Tahasildar Sri, Uday Kumar Shetty had asked him to accompany Sri. Muddu Mahadevaiah, DSP, CID, Bengaluru to assist them to draw mahazar of the Iron Ore at Belekeri Port. Accordingly, he has deposed of drawing mahazar between 07.08.2010 to 09.08.2010 and has deposed that there were about 56 heaps of Iron Ore stored at the Belekeri Port. At that time, they had taken the assistance of the officials of Department of Mines and Geology, Port officials, Forest Department Officials and also the officials of M/s Sri. Mallikarjuna Shipping Pvt. Ltd., M/s Adani Enterprises, M/s Salgaonkar Mining Industries and M/s Rajmahal Silks. He has further deposed that the said officials had measured the heaps of Iron Ore by 75 Spl.C. No.15/2014 using a bamboo stick and tapes. Out of 56 heaps of Iron Ore there were totally 34 heaps of Iron Ore belonging to M/s.Adani Enterprises and 16 heaps of Iron Ore belonging to M/s.Mallikarjuna Shipping Pvt. Ltd., 4 heaps of Iron Ore belonging to M/s.Salgaonkar Mining Industry and 2 heaps of Iron Ore belonging to M/s.Rajmahal Silks. He has also identified his signature affixed to the mahazar at Ex P-11. During the course of cross-examination by accused No.4 and 5, he has deposed that he was not served with any written notice to the pancha witness and also it is his statement that in order to measure the quantity of the heaps, no devises being utilised and when it was suggested that the heaps of iron ore were measured through Bamboo sticks and tapes, the witness has deposed that no such instrument can be used to measure the such huge quantity of iron ore. Apart from that nothing much elicited. 76 Spl.C. No.15/2014
49. PW20 Anand L.Idurkar has deposed that he has worked at customs department as UDC and during the period 2007 to 2010 he was working at Belekeri Port as Superintendent of Docks. He has deposed about the procedures with respect to arrival of cargo and its permission being accorded for export. He has identified various letter correspondence made from Department. He has also identified the shipping bills, boat notes, etc. During the course of cross- examination by the learned counsel for accused No.1 he has admitted that as per Sec.7 of Customs Act, the Port Area was notified as Customs Area and the duplicate shipping bill would be sent back after completion of export along with MATE receipt. Further, he has also stated that the Port Department will not issue no due certificate, but they will issue Port Clearance Certificate. During the course of cross- examination by accused No.1 he has admitted that they had given customs clearance since it was in 77 Spl.C. No.15/2014 accordance with law and he had not ascertained whether the iron ores were extracted from Revenue land or Forest Land. He has also admitted that he do not have accurate information with respect to the ores seized at the Port or by their Department. Further, he has admitted that as per Foreign Trade Policy, the exporting of iron ore could not be banned and at that point of time the iron ore which were brought to the Port were exported. Further, he has admitted that he had stated the total extent of iron ore as on 20.3.2010 was 8.06 lakh MT.
50. PW21 M.D. Todurkar, is the Forest Department official who has deposed that he had worked as ACF during the relevant period of time and after assuming the case, the State of Karnataka has handed over the investigation to CID authority. Apart from handing over the document, no material evidence was recorded from him.
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51. PW22 Krishna Narayan Kelaskar who was the Manager of M/s.SMSPL has deposed that he used to receive the vehicles with cargo, stock the vehicles and supply the stocks to the barges. At that time one Vishal Gopal Harikant (CW-51), Abhay (CW-50), Sri. Ullas Salunke (CW-54) and Mangaldas Kamath were also working with him. He has also deposed of receiving letter from the competent Port Officer on 29.3.2010 and it is his evidence that they were not requested to identify the iron ore heaps at Blekeri Port. However, they were given information with respect to the iron ore heaps seized at Belekeri Port as per Ex.P.34. Further, he has deposed that they had issued statement of inward and outward cargo of various companies pertaining to M/s.SMSPL, M/s.ILC Limited, M/s.Swasthik Diwakar, M/s. Sri Lakshmi Ventakeshwara Minerals, Sri. PJS Overseas Ltd., Sri. Lal Mahal Ltd., through different vessels. He has also deposed of furnishing details with respect to export of 79 Spl.C. No.15/2014 iron ore along with quantity for the period 21.3.2010 to 31.5.2010 as per Ex.P.72 and 72(A). During the course of cross-examination by accused No.1 he has admitted that he has stored ores belonging to the companies other than the one which were seized by Forest Authorities and he has denied the suggestion that the records furnished by them were not actual stock details. During the course of cross-examination by accused No.2 and 3, he has admitted furnishing details to the CID authorities with respect to specified period of time and also he has deposed that Supervisor used to maintain records and based on the same he had prepared the report. He has also admitted the suggestion that all the exports were made on behalf of M/s.SMSPL in accordance with law. He was not subjected to cross-examination by accused No.2 and 3.
52. PW23 Vishal Gopal Harikant who was the Customs House Agent has deposed about the 80 Spl.C. No.15/2014 procedures which were being adopted by the customs authority with respect to export of materials. He has also deposed that Mr.Abhay Kochrekar was the shipping executive of M/s.SMSPL for which he was the Customs House Agent and it is his evidence that Abhay Kochrekar used to take care of MATE receipts, bills of lading, G.R.Forms, statement of facts, storage planning and draft survey reports and Mr.Satish Krishna Sail was the Chairman and Managing Director of the Company. He has also identified the hand-writing and signatures of Mr.Ullas Salunke who was the accountant, Krishna Kelaskar, who was the Manager and also Madhukar Kulkarni who was incharge of Loading and Shipping at the site of their company. It is evidence that M/s.SMSPL were the only service providers of the plot area to various companies indulged in export at Belekeri Port and he has identified the correspondence made on behalf of their company. It is his evidence that they had 81 Spl.C. No.15/2014 furnished necessary details with respect to the stock maintained by M/s.Ashapura Minechem Limited which were 17,546 MT. He has also identified the letters addressed to the Stevedores by the Port Conservator to adhere to the rules and regulations and also he has identified the letter dated 26.4.2010 which were addressed to M/s.SMSPL directing them not to load the stack in the Port Premises. Further he has deposed that they had furnished details with respect to the export of iron ore, statement of inward and outward cargo movement of various companies including their company as per Ex.P.70. He has also identified the letter dated 28.12.2011 as per Ex.P.72 indicating the total extent of export of iron ore from 20.3.2010 to 31.5.2010. He has specifically deposed that Mr.Satish Krishna Sail and Ullas Solanki were looking after the sales of the Company. During the course of cross-examination by accused No.1 he has deposed that accounts details were furnished by 82 Spl.C. No.15/2014 Madhukar Kulkarni and they had handed over the documents to CBI as well as CID authorities which were prepared by Madhukar Kulkarni. During the course of cross-examination by accused No.4 and 5, he has admitted that the Port Officials have not given any information with respect to seizure of iron ore. He has admitted that the iron ore which were brought in to the Port area were properly recorded and noted in the concerned security register.
53. PW24 Sanjay Vittal Naik who was working with M/s.Adani Enterprises deposed that he used to report to Mr.H.R.Venkatesh who was the General manager of their Company and he has deposed about the procedures which were being followed right from entering of the truck through the Port entry gate till its loading. He has deposed that in the month of March 2010 they had received a letter from Port authority with respect to closure of Port for a period of 5 days and forest officials had visited the Port Area on 83 Spl.C. No.15/2014 26.3.2010 and also on 29.3.2010. As per letter at Ex.P.69, they were advised not to load cargo. During the course of cross-examination nothing much was elucidated by accused No.1 and during the course of cross-examination by accused No.2 and 3, he has deposed that he had furnished details of the cargo as on 20.3.2010.
54. PW25 Venkatesh H.R. who was the General Manager of M/s.Adani Groups has deposed that he was required to report to the Port Head and at that time they were the Port service providers providing services to various exporters for exporting Cargo through anchorage operations. He has also deposed about the procedures which were being followed by them and has deposed that in the month of March 2010 he was instructed by the Port security guard about seizures being made in their premises. He has also deposed that as they were not knowing about the exact nature of seizure they had requested their 84 Spl.C. No.15/2014 customers to visit the Port and to identify their cargo. It is his evidence that on 15.4.2010 he had received a communication requesting to provide information with respect to stack seized and marked, name of cargo as per Ex.P.34(B). He has deposed that M/s.Ashapura Minechem were their customers and around 17000 MT of iron ore were seized and also he has deposed that from 20.3.2010 till 31.5.2010 the company had approximately brought in around 11,000 MT of iron ore and in fact they had sold entire extent of 28000 MT of iron ore to A4-M/s.SMSPL. He has also deposed that they had exported in two consignments of 11000 MT of each through M.V.Mandarin Harvest and around 14000 MT of iron ore through M.V.Columbia and remaining 2000 MT was also taken over by M/s.SMSPL. He has deposed of raising invoices to M/s.SMSPL and M/s.Ashapura Minechem as per Ex.P.84. He has also identified the documents pertaining to M/s.Ashapura Minechem 85 Spl.C. No.15/2014 Ltd. During the course of cross-examination by accused No.1 nothing much was elucidated from him. However, he has denied the suggestion that the leased area would be under their control; and has stated that it was a Customs Notified Area which is transit storage area for export bound cargos which would be supervised and controlled by Port and Customs Officers. He has also specifically deposed that Mr.Mahesh Biliye was the Deputy Conservator of the Port and has denied the suggestion that the guarding of Ports were not the duty of Port Authorities. During the course of cross-examination by accused No.2 and 3 he has specifically stated that as on 20.3.2010 the cargo was locally sold and has further deposed that it was purchased by M/s.SMSPL who had also purchased another quantity of 11000 MT. During the course of cross-examination by accused No.4 and 5 he has admitted that around 93069.21 MT of iron ore were seized by the Forest Department and out of that 86 Spl.C. No.15/2014 70291 MT were permitted to be exported by the orders of High Court. Apart from that nothing has been elucidated from him.
55. PW26 R.Gokul who was the Deputy Conservator of Forest has deposed that during 2009 to July 2011 initially no port activities were being carried out. However, in the month of December 2009 he had noticed several lorries plied from the National High way entering Karwar and Belekeri Port and he had suspected of huge trafficking of mining lorries. Accordingly, he had requested his officials to verify the valid documents on 7.3.2010 and at that time they had seized about 24 lorries and he noticed that they were not carrying necessary Forest Permits. It is his evidence that on 15.3.2010 their officials had visited the Ports at Karwar and Belekeri and on verifying the documents, as per Rule 162 the Port authorities had failed to produce relevant documents and accordingly, case under Forest Act came to be 87 Spl.C. No.15/2014 registered in FOC No.17/2009-10 at Belekeri Port as per Ex.P.4. Since, the offences were non-cognizable in nature, they had requested the jurisdictional court to accord permission and hence, on 18.3.2010 necessary permission came to be accorded as per Ex.P.5 and 6. He has deposed that on 20.3.2010 their officials had visited Belekeri Port and had verified whether any documents available with the Port authorities and since they had failed to produce necessary documents, the iron ore present at Belekeri Port were seized on as is where is basis by drawing necessary mahazar, which was handed over to the custody of Mahesh Bileye, who had issued necessary acknowledgment. It is his evidence that as per occular estimates, the quantity of iron ore stored was mentioned as 5 Lakh MT. He has deposed that on 24.3.2010 the then Port Conservator Mahesh J.Bileye had asked him to send the extent of seized iron ore and accordingly, their officials had visited the Port on 88 Spl.C. No.15/2014 26.3.2010 and 29.3.2010 and marked iron ore heaps by measuring the same by circumference method and it was reported that the seized iron ore was in 24 heaps. He has also deposed that on further investigation it was noticed that the actual quantity which was seized were 8,05,991 MT and 5,00,000 MT as submitted by stevedores to the Port Conservator. He has further deposed that on 12.4.2010 several applications were filed seeking for release, which were rejected and the same were challenged before the Hon'ble High Court of Karnataka. However, in the interregnum, he has read in the news paper report that only a small portion of the seized iron ore were remaining at Belekeri Port and accordingly, he had requested the ACF to look in to the same, on which he had visited the Port on 2.6.2010 and instructed him that the news which was published was true. Accordingly, the ACF was directed to file a complaint 89 Spl.C. No.15/2014 which came to be registered as Cr.No.189/2010 as per Ex.P.96 against Port Conservator and others.
56. During the course of investigation by ACF, they had collected materials with respect to List of exporters and stevedores and they had also noted that they had failed to produce any valid documents. No valid documents for having paid the Royalty towards export of mines, minerals dispatch permits and trip sheets and forest permits were produced. It is his evidence that some of the exporters have filed several affidavits before the Hon'ble High Court of Karnataka seeking for release of the seized iron ore and which he had identified as Ex.P.100 pertaining to M/s.Ashapura Minechem Limited. Further, he has deposed that a Crl. Petition was also filed before Hon'ble High Court of Karnataka at Dharwad Bench and seeking to quash the Fir filed in the above case, which was rejected by the Hon'ble High Court of Karnataka. He has lastly deposed that as per the 90 Spl.C. No.15/2014 reports of the Customs Authority about 40 lakh MT of iron ore were exported against 18 lakhs MT of permit being issued. During the course of cross-examination by accused No.1, much suggestions were made with respect to procedural aspects and seizure of 5 Lakh MT is denied. He has admitted that export permission were to be given by the Exports Authority and he has denied the suggestion that JMFC court has directed to retain the seized mines with their department itself. During the course of cross-examination by accused No.2, much questions were raised with respect to the permission obtained from the jurisdictional Court prior to register of Forest Offence case. Apart from that nothing much was elicited from him. During the course of cross-examination by accused No.2 and 3 it has been elucidated that the Hon'ble High Court had directed release of materials seized by the Forest Authorities. It is also been suggested to him that they had sold the iron ore in their lease hold area after the 91 Spl.C. No.15/2014 interim order of the Hon'ble High Court. The witness has deposed that even then necessary permission was required as contemplated under Sec.162 of Karnataka Forest Rules, 1969 and no clearance were issued by their Department.
57. PW27 Yogesh S. Pal was the Manager of M/s.Cargo Links and he was also authorised Customs House Agent and he has explained about loading of cargo, collection of MATE receipts and draft survey reports from stevedores. He has deposed that in the year 2013 the CBI had enquired about CHA licence copy and also agreement between M/s.Adani Enterprises, M/s. SMSPL and he has also deposed of identifying the account ledger extract pertaining to M/s.SMSPL as per Ex.P.102 and 103 and he has deposed that as per their statement Ms.SMSPL has exported around 40,000 MT and 4500 MT of iron ore through M.V.Columbia. He has also identified the shipping bills which were prepared by him as per 92 Spl.C. No.15/2014 Ex.P.54, EX 63 and EX 64. During the course of cross-examination he has deposed that the exporters had furnished indemnity bond towards materials exported and they were issued in favour of Customs Department.
58. PW28 Arun Atmaram Pawar has deposed that he was working at Tadari Port Office and was deputed to Belekeri Port and on 8.6.2010 Regular Port Officer Mahesh Biliye was placed under suspension and in his place one Suresh Shetty was posted as Port Officer. He has deposed that on 20.3.2010 Forest Department officials had seized iron ore at Belekeri Port and they came to know about seizure on 24.3.2010. Further, he was present at Belekeri Port on 26.3.2010 when they had visited the Port to mark the seized iron ore and at that time, the employees of accused No.2 had objected it. As such he had reported to their office and accordingly, they had accompanied the place where the heaps of iron 93 Spl.C. No.15/2014 ore belonging to M/s.SMSPL were stored. Further on 26.4.2010 he came to know that the employees of M/s.SMSPL had stolen the sold iron ore, which he had got it brought to the notice of his higher authorities and since they had not taken any action, he had addressed a letter on 27.4.2010 through Post. It is his evidence that he came to know about removal of seized iron ore from Ramachandra Naik, Light Keeper and Jagadish Tandel who was the driver and he has also identified the letter which was addressed to him as per Ex.P.18, for which he has affixed his signature as per Ex.P.80 and 19. It is his evidence that again on 29.4.2010 the employees of accused No.2 were meddling with the seized iron ore at about 6.00 p.m. in the evening and also at about 11.30 a.m. on 29.4.2010 and on the basis of the oral submission he had report to the Port Conservator at Belekeri Port intimating about shortage of iron ore as per Ex.P.104. It is his evidence that on 2.6.2010 the Forest 94 Spl.C. No.15/2014 Department Authority had visited Belekeri Port and they seized iron ore kept and had on inspecting the same, they had stated that about 2 lakh MT of iron ore found which was less than the actual quantity and had prepared a mahazar for which he has not affixed his signature. During the course of cross- examination by learned counsel for accused he had admitted that accused No.2 M/s.SMSPL had obtained customs clearance for shipping the Iron Ore.
59. Later on PW28 was recalled by the prosecution, wherein he had identified the letters which he had addressed to Stevedores i.e., M/s Adani Enterprises, M/s Sri. Mallikarjuna Shipping Pvt. Ltd., M/s Salgaonkar Mining Industries and M/s Rajmahal Silks requesting them to follow the prescribed procedures under the Karnataka Forest Rule 1969 as per Ex.p.83. He has also deposed of sending the copy of the letter to Port Office at Karwar and also lodging a complaint before the concerned Police at Ankola 95 Spl.C. No.15/2014 Police Station on 26.4.2010. Apart from denial nothing much was elicited during the course of cross- examination by accused No.1 and during the course of cross-examination by accused No.2 nothing much was elucidated. However, he has deposed that Ramachandra Naik and Jagadish Tandel at Belekeri port were not deputed by him, but by his higher authorities.
60. PW29 Siddalinga Swamy Viraktamath was the Under Secretary at Ports and Inland Water Department, has deposed about according necessary sanction to prosecute accused No.1 Mahesh Biliye. Apart from denial nothing elicited from him.
61. PW30 M.Ganesh who was the Director of Port at Karwar and he has explained the duties and functions of Port Officer, Port Conservator, and Deputy Port Conservator. He has deposed that C.Swamy was the Port Conservator at Karwar and Mahesh Biliye was the Deputy Port Conservator who 96 Spl.C. No.15/2014 was also holding charge of Port Conservator at Belekeri. He has also deposed about receiving communication from Government on 3.10.2010 directing him to verify necessary forest permit and other licences before letting in any minerals to the Port area. He has deposed of looking in to the same and again on 30.10.2010 he had issued circular to the Port authorities to adhere to the directions of the Government. He has also deposed that in the month of June-2010 he had visited Belekeri Port along with concerned Minister Sri Krishna Palemar, who had enquired the then Deputy Port Officer Mahesh Biliye with respect to missing stock, DMG permit and other licences, for which he could not give convincing answers and accordingly, he was placed under suspension. During the course of cross-examination by accused No.1 he has denied the suggestion that the job card does not indicate of imposing duty on the Port Conservator to collect DMG Permit and other 97 Spl.C. No.15/2014 documents. Further, he has denied the suggestion that the duty is not mentioned under Indian Ports Act and also as per the Job Chart. It was also suggested to him that the indemnity bonds were executed by exporters for which the witness has admitted and has deposed that even if indemnity bonds were executed, still Port Authorities were required to verify whether the materials intended to be exported were following the impugned law as directed by the Government, apart from that nothing much was elicited from him.
62. PW31 B.S.Muddumahadevaiah was the I.O. appointed by CID authorities and has deposed that on 8.6.2010 a private complaint came to be filed before learned JMFC, Ankola by Assistant Conservator of Forests, Ankola Sub-division Sri. Narendra Hithalamakki which was registered as PCR No.55/2010 wherein the learned JMFC Court had directed to register the complaint and investigate by invoking the provision of Sec.156(3) of Cr.P.C., 98 Spl.C. No.15/2014 wherein it was stated that about that about 5 lakh MT of iron ore were stored at Belekeri Port which was seized by the Forest authorities and on the basis of the complaint was registered as FOC 17/2009-10 of which custody was handed over to the Port Conservator. It is also stated that on 6.5.2010 the Port Conservator had confirmed that the total iron ore stocks which were available 8,05,991MT and whereas on 2.6.2010 it was reported in media that the iron ore seized were exported illegally and hence, they had visited the Port on 2.6.2010 and on verifying the same, they found that majority of iron ore were missing, wherein the Forest Authorities have come to a conclusion that about 6 lakh MT of iron ore were found to be missing and only 2 lakh MT were available. As such they had registered a complaint wherein Port Conservator Mahesh Bileye was arraigned as accused person. Further, it is stated that on 8.6.2010 Mr.Narendra Hittalamakki had filed 99 Spl.C. No.15/2014 another requisition to add the provision of Sec.379 of IPC and he had also verified the 5 mahazars which were drawn on 15.3.2010, 20.3.2010, 26.3.2010, 29.3.2010 and 2.6.2010. He has also deposed of collecting necessary document with respect to export from the PW28 Arun Atmaram Pawar and on 7.8.2010 he had requested the Tahasildar, Ankola to depute his officials for the purpose of drawing mahazar at Belekeri Port. He has also requested the Department of Mines and Geology to depute their officials who were well versed with the measuring the quantity of iron ore. On 7.8.2010 at the first instance, they had visited leased area pertaining to M/s.Adani Enterprises. At that point of time, their representatives who were present shown the heaps were minerals of their company were stored. It is his evidence that there were totally 34 heaps of iron ore and he had numbered it as AC1 and after that he had visited the leased area of M/s.SMSPL who were being 100 Spl.C. No.15/2014 represented by Mr.Abhay Kocharekar who had shown 16 heaps of iron ore pertaining to their company which were uniquely marked as MC1 to MC16. It is his evidence that they had visited the area pertaining to Salgaonkar Mining Industries and also M/s Rajmahal Silks and after that they had drawn the mahazar as per Ex.P.11. He has also deposed of recovering documents from Port Officer, ILC Industries and later on 31.8.2010 he has filed requisition to the JMFC Court to arraign another 45 companies who were involved in the illegal export of iron ore. During the course of cross-examination nothing much elicited from him.
63. PW32 Shivananda H.Chalavadhi who was the Police Inspector of Ankola Police Station has deposed that on 8.6.2010, he had received the copy of private complaint along with the directions issued by the JMFC court at Ankola in PCR No.54/2010 wherein it was directed to register the case and 101 Spl.C. No.15/2014 investigate the same. It is his evidence that on 8.6.2010 at about 5.10. P.M., the complainant Hittalamakki, Asst. Conservator of Forest visited the Police Station and had lodged a second complaint as per Ex P-97 stating that the 11 companies had joined together and stolen the Iron Ore which were stored at Belekeri Port. He has also deposed of obtaining permission from the JMFC Court to invoke the provision of Sec.379 of IPC.
64. PW33 Ravishankar G. Goankar, who had worked as Superintendent of Customs at Belekeri Port, during the relevant period has identified the Shipping bills and other connecting documents as per Ex.P.125.
65. PW34 Santosh Menon is the Deputy General manager of M/s.Ashapura Minechem Ltd, and he has identified the documents pertaining to their company. He has deposed of issuing appointment letter to Mr.Vaize Ahmed as per 102 Spl.C. No.15/2014 Ex.P.129. He has also deposed that after purchase of iron ore they had moved the same to Belekeri Port at M/s.Adani Enterprises leased area and they had locally supplied to M/s.SMSPL as per the invoices at Ex.P.132. It is his evidence that they came to know about the seizure of iron ore through e-mail addressed by M/s.Adani Enterprises on 30.3.2010 as per Ex.P.133 and prior to seizure they had discussed about selling the same to M/s.SMSPL. Further, he has deposed that he came to know about actual seizure was to an extent of 17000 MT and they had filed writ petition before the hon'ble High Court for release of the same as per Ex.P.100. He has deposed that the M/s.SMSPL had exported the cargo through MV Columbia as per Ex.P.135. He has deposed of receiving the payment through M/s.SMSPL towards sale of iron ore as per Ex.P.136. He was not subjected to cross-examination by accused No.1. During the course of Cross-examination by accused No.2 and 3 it 103 Spl.C. No.15/2014 was suggested that they had furnished documents to Port Authorities as per the directions of Hon'ble High Court and the Port Authorities had not verified the same for about 10 days and later on they had sold the materials locally. It was also elucidated that accused No.3 Chethan Shah had not participated in the entire transaction. During the course of cross-examination by accused No.4 and 5 nothing much was elucidated.
66. PW35 Takat Singh Ranawat has deposed that he was posted as Assistant Conservator of Forests on Special Duty at Karwar Subdivision during the year 2010 and had taken up the investigation of the case, registered in FOC 17/2009-10. He has deposed several mining companies, traders, exporters of iron ore had approached their office requesting for release of iron ore seized at Belekeri Port and during his tenure several permits and its xerox copies were handed over to our office seeking for release of seized Iron Ore. He has identified the permits at Ex.P.124A 104 Spl.C. No.15/2014 pertaining to M/s Ashapura Minechem. Apart from that nothing much was elicited from him by accused persons.
67. PW36 Abhay Kochrekar has deposed that he joined as Supervisor at M/s.SMSPL and during the year 2010 he was working as Shipping Executive who was required to collect document from exporter and submit the same to Customs House Agent (CHA for short). He has deposed that he used to collect the Contracts entered between the parties, invoices and used to hand it over to the CHA. He has also identified the documents pertaining to M/s.SMSPL and also the documents which were produced to CID / CBI authorities. He has deposed that the documents at Ex.P.141 bears his signature. He has further deposed that he was called at the time of mahazar and his supervisor had shown the heaps of iron ore belonging to their company and also affixed his signature to the mahazar at Ex.P.11. During the 105 Spl.C. No.15/2014 course of cross-examination, he has admitted that he was not having personal information with respect to the stocks stored at Belekeri Port and has admitted that as he was not present at the time of mahazar, he could not say the time of which had commenced and ended. Apart from that nothing much has been elicited from him.
68. PW37 K.Ravi is the Police Inspector who had assisted the I.O. of CID.
69. PW38 T. Rajashekar, PW39 Biswajith Das were the I.O.s who had conducted investigation and filed final report.
70. Point No.1: With respect to the aforesaid points for consideration, firstly it is required to determine whether the sanction accorded by competent authority, to prosecute accused No.1 Mahesh J.Biliye who was working as Port Conservator at that point of time is valid and proper. There is no dispute with respect to the fact that Mr.Mahesh 106 Spl.C. No.15/2014 J.Biliye was working as Port Conservator during the period 2009-10. PW29 Siddalingaswamy Viraktamath was the Under Secretary at Port and Inland Water Department and he in his chief-examination has deposed that in the year 2013 he was contacted by CBI authorities to accord sanction to prosecute accused No.1. Along with the requisition necessary documents i.e., FIR, statement of Witness, mahazar and other details were furnished. Since, the Port Conservator at that time was coming under Port and Inland Water Department, for which the Government of Karnataka was the appointing authority as well as competent authority for remove him from services, he had verified the materials which were furnished by the CBI authorities. He has also deposed that necessary permission was sought to prosecute accused No.1 for the offences punishable under Sec.120B, 409 of IPC and also under various provisions of Prevention of Corruption Act. It is also 107 Spl.C. No.15/2014 been deposed by him that since materials were available from the documents which were furnished, he had placed the same before the learned Minister of the concerned Department through Prl. Secretary and after deliberating the materials, the Competent Authority were satisfied with respect to existence of prima facie materials and accordingly, sanction cane to be accorded. He has also deposed that he was competent to convey the sanction accorded to CBI for prosecuting accused No.1. It is noticed that during the course of cross-examination apart from denial nothing much was elucidated. The witness has also specifically deposed that he had prepared notes in their case files at the time of passing necessary order. The Court at the time of considering the question of sanction is required to appreciate that whether the Authority which had accorded sanction was competent and whether the authority had applied their mind with respect to according sanction. In the 108 Spl.C. No.15/2014 instant case, there is no dispute that the Government of Karnataka was the competent authority for the purpose of appointment and removal of Port Conservator which was coming under the purview of Department of Port and Inland Water Transport. As such it is to be held that the authority had every right to accord sanction. It is also noticed from records that there was deliberation being made by the competent authority prior to according of sanction.
71. By considering the aforesaid parameters with the materials available on record, it could be held that the competent authority had exercised due deligiance with respect to according sanction and hence, sanction accorded by them are valid, just and proper under the eyes of law. Hence, point No.1 is answered in the affirmative.
72. Point No.2 to 6:- In the instant case, the case of prosecution rests upon the Mahazars which were being drawn at the inception of the case. 109 Spl.C. No.15/2014 Initially, the case had commenced upon drawing of the Mahazar on 15.03.2010 by the Forest authorities. It has been submitted by the prosecution that on 15.03.2010 Sri.G.N.Nayak, Section Forester had visited Belikere Court along with Sri.Chandrashekar Naik and Forest Guard. It has been deposed by PW1, Vinay Doddamma Pant that they had noticed heaps of Iron Ore lying at the port. Further, it has been stated by him that they had drawn the Mahazar as per Exhibit P1. Though PW1 was considered as hostile witness and was subjected to cross-examination by the prosecution, it is noticed that he had admitted that Accused No.1, Mahesh Biliye was the Port Conservator and also he had admitted that the Port Conservator was unable to produce permits and passes. He was also subjected to cross examination by the learned Counsel for Accused No.1 wherein he had denied the suggestion of being not present at the time of incident. I have also bestowed my anxious 110 Spl.C. No.15/2014 reading to the submissions made by the learned Counsel for Accused wherein it has been stated that the Mahazar cannot be relied upon for the reason that it has been registered prior to obtaining permission from the jurisdictional Court since the offences alleged at that point of time indicated of committing non-cognizable offence. In order to better appreciate the same, it would be appropriate to look into the case which was registered by the forest authorities in FOC 17/2009-10 which was under Section 2(7)(b)(iv), 62 and 80 of Karnataka Forest Act,1963 and Section 143 and 162 of Karnataka Forest Rules. It is relevant to note at this juncture that the aforesaid provisions are non-cognizable in nature and it is also relevant to note that subsequently, necessary permission was obtained from the jurisdictional court with respect to registering the FOC. At this juncture, it would be worthwhile to appreciate the fact about the genesis which had led to filing of the above case. 111 Spl.C. No.15/2014
73. The above case had commenced on the directions of the Hon'ble Apex Court due to filing of a writ petition before it by an NGO by name Samaja Parivarthana Samudaya in W.P.(Civil) 562/2009, wherein the Hon'ble Apex Court had directed Central Empowered Committee (hereinafter referred as CEC) to look into the issues and to submit its recommendation. In furtherance of the report furnished by CEC, the Hon'ble Apex Court had directed C.B.I. to register the case and to investigate with respect to illegality of transportation, extraction and export of Iron Ore from Belekeri Port during the period 2009-10. It is also relevant to note that the Hon'ble Apex Court had clearly specified that none of the parties shall raise any objection with respect to the competency of the Court and its jurisdiction and also it has been specifically directed by the Hon'ble Apex Court that no Court shall entertain any petition with respect to the competency of the investigation 112 Spl.C. No.15/2014 agency. The aforesaid aspect assumes relevance in the above case for the reason that the C.B.I. was entrusted with investigation as per the kind directions of the Hon'ble Apex Court. On receiving the case files, the C.B.I. had commenced investigation by registering F.I.R. in RC 13(A)/2012 to RC16(A)/2012 and had commenced with investigation. Prior to commencement of investigation the records indicates that initially a complaint was filed and registered by the forest authorities under various provisions of Forest Act. It is also relevant to note that subsequently, the forest authorities had lodged a private complaint under Section 200 of Cr.PC with respect to committing offences under Section 379 of IPC by various Companies and Accused No.1, Mahesh Bileye. It is also relevant to note that subsequently the investigation was handed over to C.I.D. constituted by the State of Karnataka and later on it was entrusted to C.B.I. authorities. 113 Spl.C. No.15/2014
74. When the aforesaid aspects are appreciated in the backdrop of the directions of the Hon'ble Apex Court, it is noticed that prior to commencement of investigation by the C.B.I. authorities, already some sort of investigation had taken place. As already narrated supra, it indicates that initially one Mahazar was drawn on 15.03.2010 wherein the forest authorities had noticed several heaps of Iron Ore which was noted down as per the Mahazar at Exhibit P-1. It is pertinent to note that in the said Mahazar, it has been stated that they had received complaints from general public with respect to transportation of Iron Ore from Bilekere Port and hence, they had entered the same and found that Iron Ore was stored illegally and accordingly, Mahazar came to be drawn. Further, it has been narrated in the Mahazar that it had been brought to the notice of the Port authorities that they were required to verify Forest Passes, Way Permits, the Port authorities had specifically stated of 114 Spl.C. No.15/2014 not verifying the same. Further, it has been narrated that since the heaps of Iron Ore were very huge in quantity, they were unable to determine its quantum and accordingly the Mahazar was drawn. It is also relevant to note that on 15.03.2010 itself a Forest Case came to be registered in FOC No.17/2009-10 as per Exhibit P-4 in the above case, wherein it has been mentioned that there is violation of the provisions of Section 143, 162 of Karnataka Forest Rules, 1969 and also the provisions of Karnataka Forest Act. Immediately thereafter, a letter was addressed as per Exhibit P-5 to the learned JMFC Court at Ankola seeking for necessary permission to investigate the case as contemplated under Section 155 of Cr.PC. It is not a case wherein the forest authorities had already commenced investigation prior to obtaining of permission from the competent jurisdictional Court. It is also noticed as per Exhibit P-6 that the learned Civil Judge and JMFC Court at Ankola had granted 115 Spl.C. No.15/2014 necessary permission and the endorsement is clearly forthcoming in the aforesaid Exhibit. It is also noticed that on 20.03.2010 once again the forest authorities had visited Bilekere Port and in the presence of PW7 Mahesh Narayana Gaonkar, PW8 Ashok Ramachandra Naik, Mahazar came to be drawn as per Exhibit P-8. It is relevant to note that the forest authorities had noticed huge quantity of Iron Ore being stored at Belekeri Port and they had approximately determined about five lakhs metric tonnes of Iron Ore for which they had determined its value at Rs.3000/tonne at Rs.150 Crores. Further, the Mahazar indicates that the said Iron Ore was huge in quantity and as such they had determined to hand it over to the Port Authorities and to obtain necessary endorsement from them. The records also indicate that the forest authorities had again drawn a Mahazar on 26.03.2010 as per Exhibit P-9 to determine the quantum of the Iron Ore heaps which 116 Spl.C. No.15/2014 were stored at Belekeri Port. It is relevant to note that again the Mahazar was drawn in the presence of Ramachandra Thimmanna Naik and PW-9 Prakash Soma Naik. It would be appropriate to refer to the evidence of PW-7 Mahesh N. Goankar in this regard. It is his specific evidence that on 20.03.2010 they had reached the Port and approximately measured Iron Ore to an extent of 5000 M.T. as per Exhibit P-8. Further, he has deposed in his cross-examination that the measurement was measured approximately and during the course of cross-examination by the learned Counsel for Accused Nos.2 and 3, it was suggested that apart from heaps measured by Mr. G.N.Naik, there were other Iron Ore heaps at Belekeri Port. The aforesaid suggestion would clearly indicate that several huge quantity of Iron Ore was stored at Belekeri Port on that day. The evidence is corroborated if the statement of PW8 Ashok Ramachandra Naik is appreciated. He has specifically 117 Spl.C. No.15/2014 deposed that the Mahazar was written by Mohan Naik and he has feigned his ignorance about the exact place where the Iron Ores were stored at the Port. Further, during the course of cross-examination he had stated that the Iron Ore was not weighted, but it was circled with white powder and heaps were measured with a bamboo stick. With respect to the evidence of PW9 Prakash Soma Naik, who was the agent of a newspaper and an independent witness, has specifically stated that he was present at the time of drawing the Mahazar on 26.03.2010 as per Exhibit P-9. By looking into the aforesaid aspects, it could be clearly made out that the forest authorities had not commenced any investigation prior to obtaining of necessary permission from the jurisdictional Court. It is relevant to note at the cost of repetition, that initially a Mahazar as per Exhibit P-1 was drawn which is a sort of a preliminary enquiry being conducted and the necessary investigation had 118 Spl.C. No.15/2014 commenced only after obtaining necessary permission from the jurisdictional Court on 18.03.2010 and also the record indicates that a Mahazar as per Exhibit P- 9 was drawn on 20.03.2010. It is relevant to note that even in the second Mahazar, the exact quantum of the Iron Ore stored was not specified. However, it was only on 26.03.2010 necessary details of the extent of Iron Ore being stored is discussed by the then investigating officer. For the sake of brevity, if the Mahazar at Exhibit P-10 is appreciated, it indicates that on 26.03.2010 they had visited the Belekeri Court and had identified various heaps of Iron Ore and in fact, it indicates that there were totally seven heaps being identified by them which were to an extent of 1,43,000 metric tonnes of Iron Ore. It is also relevant to note that it has been specifically stated in the Mahazar that it was directed to the port authorities not to permit anybody to dump Iron Ore on the identified heaps mentioned with the Mahazar. 119 Spl.C. No.15/2014 The records also indicate that another Mahazar was drawn on 29.03.2010 by the forest authorities as per Exhibit P-11 wherein they had identified Heap No.9 to 24 and had determined the extent of Iron Ore stored as 3,57,000 metric tonnes and also it has been noticed in the records that they had made the description of earlier extent of Iron Ore being stored.
75. When the aforesaid Mahazars are carefully appreciated, it would indicate that the forest authorities had indeed commenced the investigation only after obtaining necessary permission from the jurisdictional Court. As such, the submissions at Bar by the learned defence Counsels that the investigation had commenced prior to obtaining permission from the Court since the offences alleged were all non- cognizable in nature does not holds water. Even otherwise, the investigation which was carried out by the earlier investigating agency prior to entrusting the same to C.B.I. by the Hon'ble Apex Court can only be 120 Spl.C. No.15/2014 appreciated for a limited purpose. It is not that the C.B.I. is entirely relying upon the materials collected by the then investigating agency. It is also pertinent to note that the earlier investigation which was conducted by the forest authorities, C.I.D. authorities can be looked into for limited purposes only as the incident had taken place in the year 2010 and whereas, the investigation was entrusted to C.B.I. in the year 2012 by the Apex Court. Even for the C.B.I. to conduct investigation on the basis of the materials prevailing in the year 2010 would be a herculean task since majority of the Iron Ore were alleged to have been exported by the time investigation was commenced by the C.B.I. authorities.
76. In this regard, the question with respect to the veracity of the investigation being conducted was questioned in Crl. Pet. No.7645/2010, Crl. Pet. No.7646/2010 and Crl.Pet. No.7673/2010 before the Hon'ble High Court of Karnataka, Circuit Bench at 121 Spl.C. No.15/2014 Dharwad wherein the Hon'ble High Court by its kind order dated 02.11.2010 had rejected the said contention. It is also relevant to note that the present Accused person was also a party in the aforesaid Criminal Petitions. In order to better appreciate the aforesaid contention, the relevant portion of the impugned order is required to be considered, wherein the Question No.2 which was raised by the Defence Counsels was answered by the Hon'ble High Court. For the sake of convenience, the questions which are raised is extracted, which reads as follows:-
(II) Whether the Forest Officer named under Section 62-A could apply for permission to the Magistrate under Section 155 (2) Cr.PC to investigate non-
cognizable offences under the provisions of the Act or whether he could only be a complainant to the Police Officer, or whether the Police Officer alone is competent to apply to the Magistrate for grant of permission?
122 Spl.C. No.15/2014 (III) In the instant case, whether permission of Magistrate was obtained before carrying out investigation in FOC 17/09-10 and FCR 189/09?
(IV) Whether the seizure effected by the Police Officer is vitiated for not obtaining prior permission to investigate, as required under Section 155 (2) of Cr.PC?
77. In this regard, necessary discussions were made by the Hon'ble High Court which is as follows:-
17. Now, we shall come to the question as to whether investigation in the instant case as commenced by the Deputy Conservator of Forest without the permission of the magistrate, vitiates the proceedings. In this regard, it is material to note that FCR 17/09-10 came to be registered on 15-3-2010 on which day the forest officer visited the port and noticed stacking of iron ore.
Suspecting it to be an attempt to illegally export it without the requisite permits, he registered the case.
18. Sri Ravi B. Naik and Sri Thiruvengadam, with vehemence, 123 Spl.C. No.15/2014 asserted that after registering the FIR on 15-3-2010, the forest officer had seized the ore and registered a case under Sections 2(7)(b)(iv) 62, 80 of the Forest Act and for violation of Rules 143 and 162 of the Forest Rules. Since it was done without the permission of the magistrate as required under Section 155(2), CrPC, the entire proceedings are vitiated. If what is urged is factually so, then the ground is acceptable. However, on a perusal of the records made available, it is noticed that the complainant/forest officer had applied to the jurisdictional magistrate at Ankola, in FCR 17/09-10 for grant of permission to investigate the case for the offences indicated above, as required under Section 155(2), CrPC. The magistrate passed the order on 18-3-2010, granting permission to investigate the case. In pursuance to the said order, seizure has been effected on 20-3- 2010. The seizure report at Annexure-C appended to Crl.P. 7645/10 indicates that seizure was reported to the magistrate on 20-3- 2010. Seizure, undoubtedly, is after obtaining permission to investigate the case and hence, the requirement of Section 155(2), CrPC has been met by the forest officer. 124 Spl.C. No.15/2014
19. On facts, it is seen investigation has commenced only after permission was granted by the magistrate and hence, registration of FCR 17/09-10 is not in contravention of the provisions of the CrPC and hence, not vitiated.
20. Regarding seizure, petitioners contend that it is illegal as the ore stacked was covered with forest permit in respect of a particular quantity;
Customs clearance was also obtained. These are questions of fact to be inquired into. Petitioners have referred to the orders passed in their favour in WP 10347/10 dated 31-3-2010 and subsequent orders in the connected writ petitions to show they were permitted to lift the seized iron ore subject to executing an indemnity bond. I have perused the interim orders passed by this court in the writ petitions referred to above. They are not unconditional. The order relied by the petitions dated 31-3-2010 in WP 10347/10 is of relevance and to understand its effect, it is extracted hereunder:
'Though this court on an earlier instance had issued an interim order staying the order which is similar to the one which is produced as Annexure-J to the 125 Spl.C. No.15/2014 one which is produced as Annexure-J to this petition, the period prescribed in the said notice has expired.......
In the present case, the impugned Annexure-M dated 29-3- 2010 the document itself indicates that the exporters are permitted to load iron ore other than what has been seized by the forest authorities. Hence, an interim order in the instant case is issued directing the respondents to permit the petitioner to export iron ore regarding which clearance has been obtained from the forest authorities and in respect of which customs duty has been collected by the authorities. It is made clear that in respect of iron ore which may be stocked in the yard and in respect of the same, if there is no endorsement of forest authorities as required under Rule 162 of the Karnataka Forest Rules such stock of iron ore shall not be permitted under this interim order. Hence, export may be permitted on verification of documents and subject to the petitioner filing indemnity bond. The export permitted shall remain subject to the result of the petition and further orders to be passed.' 126 Spl.C. No.15/2014 Based on the order extracted above, similar orders have been passed in subsequent writ petitions, but it is clear from the nature of the interim order granted that petitioners were permitted to load iron ore other than what was seized by the forest authorities.
The direction issued to the respondents was to permit the petitioners to export iron ore regarding which clearance has been obtained from forest authorities and in respect of which customs duty has been collected.
Besides, other conditions enumerated in the order clarify that the iron ore seized was not permitted to be lifted/exported and in fact permission granted in respect of unseized iron ore was also subject to fulfillment of all requirements under law and the endorsement of the forest authorities under Rule 162 of the Forest Rules.
35. Based on the discussions above, points framed at paragraph no. 9 are answered as under:
Point no. (1) : is answered in the affirmative. By virtue of Section 62-A of the Forest Act, the forest officer above the rank of a RANGE FOREST OFFICER named in Section 62-A of the Act is equated 127 Spl.C. No.15/2014 to a police officer for the purpose of investigation of offences punishable under the provisions of the Forest Act.
Point no. (2) : Consequently, it has to be held that the forest officer referred to under Section 62-A of the Forest Act is competent to apply to the magistrate under Section 155(2), CrPC, for grant of permission to investigate non- cognizable offences under the provisions of the Forest Act. He need not apply to the jurisdictional police officer through a complaint to seek such permission form the magistrate.
Point no. (3) : In the instant case, on facts it has to be held that the forest officer investigating the case in FCR 17/09-10 and FIR 189/10 had obtained prior permission for effecting seizure of the contraband and iron ore which is the subject matter of investigation.
Point no. (4) : Consequently, it is held that the seizure effected by the investigating officer for was after taking prior permission under Section 155(2), CrPC, and hence not vitiated.
36. Based on the discussion in the foregoing paragraphs, I am constrained to discount all 128 Spl.C. No.15/2014 contentions and grounds urged by the petitioners regarding competence of forest officers to investigate offences under the Forest Act, contention regarding untenability of investigation in FCR No. 17/09-10, Crime No. 189/10 and P.C. 54/10 as devoid of merits.
All grounds urged by the petitioners seeking quashing of proceedings against them mentioned above are rejected.
78. By looking into the aforesaid aspects, it is crystal clear that the investigation which was carried out by the forest authorities are in accordance with law and no aspersions can be castigated against the foresaid authorities.
79. In the instant case, the drawing of Mahazar itself is seriously disputed and also when the allegations leveled against the accused persons are carefully appreciated, it indicates that a serious allegation U/s.379 of IPC and also entering into conspiracy for exporting the illegally dumped Iron Ore materials from Belekeri Port has been leveled. The first and foremost aspect which is leveled against the 129 Spl.C. No.15/2014 accused persons are that the Accused No.1, Mahesh J. Biliye had entered into a criminal conspiracy with M/s. SMSPL who has been arrayed as Accused No.4 and also the stevedore in the above case for which Accused No.5, S.K.Sail was the Managing Director had provided with lease hold land at Belekeri Port which was leased to him as per the Government Notification at Exhibit P14 and Exhibit P16. In short, Accused No.4 Company was the service provider who had provided for space at Belekeri Port and whereas Accused No.2, M/s.Ashapura Minechem Limited had availed stevedore facility and Accused No.3 was the Managing Director of the said Company. After availing of the stevedore facility accused No.2 M/s.Ashapura Minechem Limited had stored iron ore at Belekeri port and in fact they were not having any import and export license. It is submitted that the accused No.4 Company were having the Import-Export Code (IEC in short) and as such they were having power to export 130 Spl.C. No.15/2014 the materials from the port area. It is also been contended that the Accused No.2 Company had purchased about 17,546 MTs of iron ore from various vendors and had dumped the same at Belekeri port which was subsequently subjected to seizure by the forest authorities. In short, the case of prosecution is that the said seized Iron ore were illegally exported by Accused No.4 Company which is represented by Accused No.5 being the Managing Director. It is also been contended that the aforesaid activities were able to be completed only with the aid and support of Accused No.1 who was the Port Conservator at that point of time.
80. In order to appreciate the aforesaid aspects, the prosecution is firstly required to prove entering into criminal conspiracy as contemplated U/s. 120-B of IPC. The provisions of Sec.120-B of Indian Penal Code clearly stipulates that whenever an act is intended to be done in a manner which is illegal or 131 Spl.C. No.15/2014 which is legal in an illegal manner, the same attracts the rigors of Sec.120-B of IPC. It is the settled principles of law that the concept of criminal conspiracy cannot be proved in normal circumstances by way of direct evidence. However, the same may be proved by indicating the circumstances which would lead to draw inference that it was not a minor irregularity but indeed it was an act of criminal conspiracy. In the instant case as noticed above, many irregularities were being committed by accused No.1 who was the Port Conservator and also it has been contended that the said act was committed only to ensure that the Iron ore which were seized by forest authorities at Belekeri port and entrusted to his custody were illegally exported and it is alleged that the said irregularities cannot be considered as minor misnomer but it was committed in furtherance of criminal conspiracy entered between other accused persons. Under the circumstances, the moot aspect 132 Spl.C. No.15/2014 which is required to be determined is whether such irregularity amounts to entering into criminal conspiracy. In this regard, the authority which has been relied upon is required to be considered which is reported in (2002) 7 SCC 334 (Mohammed Khalid Vs. State of West Bengal) wherein the Hon'ble Apex Court has held as follows:
"17. It would be appropriate to deal with the question of conspiracy. Section 120B of IPC is the provision which provides for punishment for criminal conspiracy. Definition of 'criminal conspiracy' given in Section 120A reads as follows:
"120A-When two or more persons agree to do, or cause to be done,- (1) all illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy;
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.' The elements of a criminal conspiracy have been stated to be:133 Spl.C. No.15/2014
(a) an object to be accomplished,
(b) a plan or scheme embodying means to accomplish that object,
(c) an agreement or understanding between two or more of the accused persons whereby, they become definitely committed to co-operate for the accomplishment of the object by the means embodied in the agreement, or by any effectual means, (d) in the jurisdiction where the statute required an overt act. The essence of a criminal conspiracy is the unlawful combination and ordinarily the offence is complete when the combination is framed.
From this, it necessarily follows that unless the statute so requires, no overt act need be done in furtherance of the conspiracy, and that the object of the combination need not be accomplished, in order to constitute an indictable offence. Law making conspiracy a crime, is designed to curb immoderate power to do mischief which is gained by a combination of the means. The encouragement and support which co- conspirators give to one another rendering enterprises possible which, if left to individual effort, would have been impossible, furnish the ground for visiting conspirators and abettors with condign punishment. The conspiracy is held to be continued and renewed as to all its members wherever 134 Spl.C. No.15/2014 and whenever any member of the conspiracy acts in furtherance of the common design. (See:
American Jurisprudence Vol. II Sec. 23, p. 559). For an offence punishable under section 120-B, prosecution need not necessarily prove that the perpetrators expressly agree to do or cause to be done illegal act; the agreement may be proved by necessary implication. Offence of criminal conspiracy has its foundation in an agreement to commit an offence. A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act by unlawful means. So long as such a design rests in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act In Itself, and an act of each of the parties, promise against promise, actus contra actum, capable of being enforced, if lawful, punishable if for a criminal object or for use of criminal means.
18. No doubt in the case of conspiracy there cannot be any direct evidence. The ingredients of offence are that there should be an agreement between persons who are alleged to conspire and the said agreement should be for doing an illegal act or for doing illegal means an act which itself may not be illegal, Therefore, the essence of criminal conspiracy is an agreement to do an illegal act 135 Spl.C. No.15/2014 and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both, and it is a matter of common experience that direct evidence to prove conspiracy is rarely available. Therefore, the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused."
81. On appreciating the above said dictum, it is clear that the prosecution is required to prove the circumstances under which an offence is committed which would be construed as conspiracy i.e., there should be an object to be accomplished, plan or scheme embodying means to accomplish the object, an agreement or understanding between 2 or more accused persons and in the juxtaposition where the statue is required to commit an overt act. In other words, the essence of criminal conspiracy is the unlawful combination and ordinarily the offence is complete when the combination is framed. In the instant case it requires to be considered that whether the act of Port Conservator in not preventing the export being made by Accused No.4, M/s.SMSPL and 136 Spl.C. No.15/2014 Accused No.5, Mr. S.K. Sail would amount to conspiracy. Time and again it has been held by various dictums that the criminal conspiracy is an independent offence. Further the prosecution is required to prove the same by producing necessary materials to indicate criminal misconduct on the part of the accused. In other words, the acts, which have been committed by the accused persons, should be the one, wherein the accused has to take definite steps to an agreement which they had entered upon to do an illegal act or to do an act which is legal, but with illegal means. Hence, in simple manner the concept of conspiracy can be explained if it consists following ingredients.
a) that there should be an agreement between 2 or more persons
b) that the said agreement should be for doing of an illegal act or for doing by illegal means an act which by itself may not be illegal.
137 Spl.C. No.15/2014
82. When the said ingredients are established, then only the prosecution may contend that the accused persons had entertained an intention to commit an offence. At this juncture it would be appropriate to appreciate and rely upon the passage of Russell on Crimes (12th Edition a Volume No.1) which reads as follows:
"The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement between the parties.
Agreement is essential.
Mere knowledge, or even discussion, of the plan is not, per se enough".
83. It is well settled principles of law that criminal conspiracy will be hatched up in darkness and will be executed for which there will not be any direct evidence. It is also relevant to appreciate that when 138 Spl.C. No.15/2014 criminal conspiracy is alleged, the same is required to be considered on the basis of the materials available on record and at times, the circumstantial evidence is also required to be looked into.
84. In the instant case, the prosecution has contended that in furtherance of the criminal conspiracy the aforesaid act was committed. It has been vehemently argued by the learned defense Counsels that no such conspiracy has been established by the prosecution. In order to appreciate the same, at the cost of repetition the entire facts that had taken place is to be recapitulated which are as follows:-
(a) 15.03.2010 - the forest officials visit Belekeri port as per the directions of PW26, R.Gokul, the then Deputy Conservator of Forest, Karwar Division.
(b) On the same day, the forest authorities notices that huge heaps of Iron ore was stored at Belekeri Port for which the port authorities were unable to provide with necessary documents.139 Spl.C. No.15/2014
(c) On the same day, FOC 17/2009-10 came to be registered for committing the forest offence.
(d) On 18.03.2010 necessary permission was obtained from the learned JMFC Court as contemplated U/s. 155(2) of Cr.PC.
(e) On 20.03.2010 once again the forest authorities had visited Belekeri port and drawn necessary Mahazar.
(f) On 24.03.2010 a letter was addressed by Port Officer, Karwar to Deputy Conservator of Forest, Karwar , wherein it was requested to furnish necessary details of the Iron ore seized by the forest department and also to provide certified copies of FIR, seizure report and panchanama.
(g) On 25.03.2010 and on 29.03.2010, the Superintendent of Customs had informed the Port Conservator that the 140 Spl.C. No.15/2014 suspension of all operations at Karwar and Belekeri Port were to be resumed subject to non-exporting of seized materials which were not seized by forest authorities.
(h) On 26.03.2010 another Mahazar was drawn as per Exhibit P9 which indicated that Heap No.1 to 7 consisted of approximately 1,43,000 MTs of Iron ore.
(i) On 29.03.2010 another Mahazar was drawn which indicated that the quantum of Iron ore which was stored from Heap No.8 to 24 were around 3,57,000 MTs of Iron ore.
(j) On 29.03.2010 the Port Officer had addressed letter to Stevedore not to load Iron ore cargo which were seized by the forest authorities until further orders.
85. When the aforesaid incidents are carefully appreciated, it indicates that immediately after 141 Spl.C. No.15/2014 drawing of the Mahazar on 15.03.2010, no effective investigation had commenced and indeed, the investigation had commenced only after obtaining necessary permission from the learned JMFC Court on 18.03.2010 and on the basis of the same, the forest authorities had visited Belekeri Port and had drawn the Mahazar on 20.03.2010 wherein they have contended that the extent of Iron ore which were seized were approximately 5,00,000 MTs. It is relevant to note that the evidence of PW18, Mr. Yogesh Anand Shetty throws light on the aforesaid aspect. He has specifically stated in his chief examination that the seizure letter for which A1, Mahesh Bileye had initialed was identified by him which is at Exhibit P.40. The aforesaid aspect assumes importance for the reason that it has been vehemently contended that at no point of time, Accused No.1 was entrusted with the custody of the seized materials. It would be worthwhile to appreciate the same at Exhibit P-40. It 142 Spl.C. No.15/2014 clearly indicates that the Section Forester, Ankola who had seized the Iron ore had handed over to the custody of the Port authorities until further orders on as is where is basis. It has been contended that no proper entrustment of the property was made to the Port authorities. However, the evidence of PW-18 Yogesh Shetty would clearly indicate that the corresponding letter was furnished to the Port Conservator i.e. Accused No.1, Mahesh Bileye. Though the learned Senior Counsels have argued that mere dispatching a letter to the office would not amount to entrusting of the property with dominion over the same, it is required to be looked into with respect to the letter correspondences which were made by the Port Conservator thereafter. It is relevant to note that the Port Conservator, Mahesh Bileye had corresponded with the forest authorities by stating that they were not responsible towards the same and the seizure of Iron ore was not within his 143 Spl.C. No.15/2014 knowledge. However, on the basis of the same, forest authorities had sent another letter which was received by PW-10 R.Anand. PW-10 R.Anand in his evidence has specifically deposed that on 24.03.2010 he had received a letter from forest department for which he had affixed his signature and the letter as per Exhibit P-17. When the letter at Exhibit P-17 is appreciated, it indicates that the forest authorities had furnished a seizure report stating that the particulars of the property which were seized were approx. 5,00,000 MTs and the value of the same would be around Rs.150 crores. The copy itself indicates that the learned Magistrate had permitted the RFO, Ankola to retain the seized properties until further orders. As such it would indicate that the connection between the seizure of property and its entrustment is established by the prosecution. During the course of cross-examination of Pw10, it was suggested to him by the learned Counsel for Accused No.1 that he does 144 Spl.C. No.15/2014 not know the contents of the letter. In other words, the aforesaid suggestion would indicate that he had categorically admitted the receipt of the letter. I have also carefully appreciated the correspondences which were being made by the Port Conservator. For instance, the correspondence which is made by him at Exhibit P.42, wherein the Accused No.1 had directed the Stevedore to comply the order of the Court is required to be looked into. It is relevant to note that if the Accused No.1 was not entrusted with the property which are in the form of seized Iron ore, it is for him to explain why he had corresponded with the Stevedores to adhere to the directions. The subsequent correspondences also indicates that the Port Officer had requested the forest authorities to furnish details of the Iron Ore seized vide letter dated 25.03.2010 as per Exhibit P.43 and also as per Exhibit P-44. The forest authorities had furnished the FIR, Mahazar and other documents. That apart, 145 Spl.C. No.15/2014 another letter dated 15.04.2010 which was addressed by Accused No.1 to the Stevedores directing them to provide information regarding Iron ore available in the seized materials which were marked by the forest department along with their name and other details as per Exhibit P-33, also clearly indicates that Accused No.1, Mahesh Bileye was in control over the affairs of the Port. I have also bestowed my anxious reading to the document at Exhibit P-25(C) which is a letter dated 03.03.2010 addressed by Mr. M. Ganesh, the then Director of Port and Inland Water Transport which was addressed to the Port Officer at Karwar, wherein it was specifically stated that the Lorries which were carrying the Iron ore were required to provide necessary documents pertaining to its transport which were abstract of bulk permit for mining lease, Mineral Dispatch Permit and payment of royalty. It was further specified that in the event of non-production of the document, it was to be 146 Spl.C. No.15/2014 considered as illegally transported materials and was to be reported to the officials of Department of Mines and Geology. Further, another letter dated 30.03.2010 as per Exhibit P-25(A) addressed by the Office of the Director, Port and Inland Water Services, Karwar specifies that the vehicles with valid permit from the Department of DMG and Forest authorities were only to be permitted to enter the port area. Further, as per the letter dated 30.03.2010 addressed by the Director of Port and Inland Water Service as per Ex.P-25, it has been specifically stated that the lorries carrying the Iron ore were to be permitted only after verifying the Forest Pass and Permit. In the said exhibit, the other correspondences have also been marked which would clearly indicate that the Port Conservator was entrusted with the duty to verify the materials entering the Port. One such letter is dated 12.03.2010 wherein it has been specifically stated that as per Chapter III of Indian Port Act, 1908 the Port 147 Spl.C. No.15/2014 Conservator was required to ascertain all the materials entering the Port and to ensure the materials entering the Port were in accordance with law. The aforesaid aspect would clearly indicate the duty entrusted by the Director. That apart, in the last paragraph, it has been specified that the Port Conservator was required to adhere to the Rules and Regulations which were being regulated by the Government and as per D.O. letter in LOE 45 PSE 2010 dated 03.03.2010 it was mandatory to inspect all the Iron ore lorries entering the Port. The aforesaid letter was issued on 12.03.2010 i.e. prior to the seizure made by forest authorities. The aforesaid communications would clearly indicate that a duty was entrusted upon the Port officials to verify necessary permit at the time of entering the Port. Though it has been argued vehemently that, no such duty was entrusted to the Port Officers, the document speaks otherwise. Even otherwise, the document at 148 Spl.C. No.15/2014 Exhibit P-25(D) which consists of the proceedings of the meeting held on 13.04.2010 under the Chairmanship of Principal Secretary to Government, Forest, Ecology and Environment Department regarding seizure of Iron ore at Belekeri and Karwar ports is to be looked into. In the aforesaid meeting, the Secretary of Public Works Department had stated that the role of the port authorities were limited since it was Stevedores who book the shipment of the merchandise and the port authorities generally do not monitor the same to find out the source of merchandise. Further, in the said meeting, the Director Ports and Inland Water Transport had stated that, once the private agents book the shipment of Iron ore, hundreds of Trucks loaded with Iron ore would be dumped at the space provided by Stevedores and it would be difficult for the port authorities to differentiate between legally and illegally mined Iron Ore. In the said meeting, several decisions were 149 Spl.C. No.15/2014 taken and one such decision was to set up a Check Post near the entrance of the Port itself. It is rather surprising to note that in the said meeting, none of the port officials had raised any qualms that they were not required to check the veracity of the materials. If for the sake of arguments, it was to be held that the port authorities were not required to ascertain the genuineness of the materials brought into the port, then obviously the same would have been brought to the notice of the persons at the time of conducting the meeting. Even otherwise, the letters addressed by the Port Conservator on 06.05.2010 as per Exhibit P-37 to the Investigating Officer of the forest department along with letter head of Stevedores would indicate the availability of Iron ore at Belekeri Port. Lastly, the letter dated 27.10.2010 at Exhibit P- 61 the Port Officer, Karwar had informed the Stevedores that the forest department had marked the Iron Ore stacked lying inside the Belekeri Port 150 Spl.C. No.15/2014 premises as per the Mahazars dated 26.03.2010 and 29.03.2010 on as is where is basis. The communications clearly indicate that Accused No.1, Mahesh Bileye was always kept in loop. Even otherwise, the deliberations which had taken place in the meeting conducted by the Principal Secretary and subsequently, the correspondences which were made by the Director of Ports directing the concerned Port Officers to ascertain the genuineness or otherwise of the Iron ore entering Belekeri Port by verifying the Forest Pass and DMG permit which were in the form of bulk permits would clearly vindicate the case of prosecution.
86. It is also been contended that the Iron Ores which were stored at Belekeri Port were subsequently stolen. As already discussed above, at each and every step the role of Accused No.1 and also Accused No.4 Company by name M/s.SMSPL and also the role of accused No.5 being the Director of the Company 151 Spl.C. No.15/2014 would clearly indicate about the specific overt act specified against him. All the aforesaid incident is required to be considered conjointly to ascertain whether the same was committed in furtherance of a conspiracy hatched by them or in normal course which does not have any impact on the evidence of each of the witnesses.
87. At this juncture, once again the manner in which the investigation came to be entrusted is to be looked into. Investigation was entrusted to CBI authorities by the kind orders of the Hon'ble Apex Court in Samaja Parivarthana Samudaya case. Until such period of time, the investigation was either carried out by the local forest or by police authorities wherein subsequently, it was entrusted to CID officials. Only due to the intervention of the Hon'ble Apex Court, which on the basis of Central High- Powered Committee, the investigation came to be entrusted to CBI. When the above said incidents are 152 Spl.C. No.15/2014 conjointly read, it would indicate that all the Accused persons had joined together to export Iron ore illegally without obtaining valid documents.
88. The other aspect which is required to be considered is whether the Mahazar which was drawn on 20.03.2010 as per Exhibit P-8, and Mahazar dated 26.03.2010 and 29.03.2010 as per Exhibit P9 & P10 indicating the total extent being recovered was to an extent of 5,00,000 MTs can be accepted. The learned Counsel for Accused has vehemently argued that all the Mahazar witnesses have consistently deposed that the Iron ore materials which were recovered were by using Bamboo stocks and rope which is unheard of. In order to substantiate the same, the learned Counsel for Accused has contended that, if for instance the evidence of PW-8 Ashok Ramachandra Nayak is to be looked into, he has deposed during the course of cross-examination that the Iron ore heaps were not weighed, but they were circled with white 153 Spl.C. No.15/2014 colour powder and circled with stick. Further, it is submitted that during the course of cross- examination of PW-9 Prakash Soma Nayak, the very same answer was elucidated. However, it is pertinent to note that he had volunteered, that though the Iron ore heaps were not weighed, the same was measured by using height and circumference method. Further, the evidence of PW-19 Nagesh Bommaiah Gunaga, who was the Revenue Inspector at that time has deposed that on 07.08.2010 another Mahazar was drawn by the CID authorities which was completed on 09.08.2010 as per Exhibit P-11 and even in that the measurements were made approximately and not weighing the same. If for a moment the submission of the learned Counsels for Accused is to be accepted, then it has to be held that the quantum was not properly determined by the authorities. However, it is relevant to note that at that point of time, the forest authorities were immediately required to determine 154 Spl.C. No.15/2014 the quantum of the Iron ore which were seized. In order to determine the same, it was measured in a approximate manner by using height x circumference and also by looking into the shape of the Iron ore heap. Normally, the measurement of bulk heaps of minerals are initially determined approximately in the aforesaid manner. Even in the instant case, the very same procedure was being adopted by them. Subsequently, an attempt was made to determine the exact extent by collecting necessary materials from Stevedores who used to weigh the minerals entering the port prior to dumping the same in their lease hold area. Another aspect which assumes importance is the record submitted by the Stevedores in this regard. It is relevant to note that the Stevedores as per their Lease Agreement, necessarily charges the person availing the facility on the basis of the materials dumped in the lease hold area. In order to raise the Invoice, admittedly the Stevedores would measure 155 Spl.C. No.15/2014 exactly the extent of Iron ore being dumped in their area. Even otherwise, the evidence of PW-36 Abhay Kocharekar throws light in this regard. During the course of his cross examination, he has admitted that there were weigh bridges in their lease hold area. I have also carefully appreciated the evidence of P-23 Vishal Gopal Harikant who has also the employee of M/s.SMSPL and has deposed that the Iron ore quantity would be measured at three Weigh Bridges installed in the port area. The aforesaid evidence would indicate that the extent shown in the Mahazar is to be compared and tallied with the extent which is shown in the details furnished by the Stevedores.
89. Though it has been argued that the quantity of Iron ore was not at all mentioned at the inception of the case i.e. at the time of drawing the Mahazar as per Ex.P1, it is relevant to note that it was only a preliminary inquiry being made by the forest authorities to ascertain whether there were any 156 Spl.C. No.15/2014 materials which would attract the rigors of the Forest Act. At the cost of repetition, another Mahazar came to be drawn on 20.03.2010 wherein the quantity of the Iron ore was determined tentatively. In other words, in the said Mahazar as per Ex.P-8, it was stated that the quantity was around 5,00,000 MTs. Further, as per the Mahazar as per Ex.P-9, which was drawn on 26.03.2010 and as per Ex.P-10, which was drawn on 29.03.2010, the quantum was determined at 5,00,000 MTs. Though a serious dispute is raised with respect to the determination of quantity as per the Mahazar at the inception, it is relevant to note that subsequently, the Port authorities had corresponded with the Stevedores as per the letter dated 15.04.2010 at Ex.P-33 to furnish necessary details of the Iron ore which were stored at Belekeri Port. Thereafter, the Port Conservator had addressed a letter to ACF, Ankola stating that he had directed the Stevedores to furnish information and the same 157 Spl.C. No.15/2014 would be communicated to him immediately after obtaining necessary information. It is relevant to note that the document at Ex. P-34(B) furnished by the Stevedore i.e M/s. Adani Enterprises Limited would clearly indicate the total quantity which were seized by the authorities. It is relevant to note that as per Ex.P-9 & P-10, the forest authorities had seized the Iron ore with respect to Stack No.2. It is relevant to note that the name of the party which has been furnished is M/s.Ashapura Minechem Limited. In the aforesaid document, it has been stated that the quantity estimated by forest department as on 20.03.2010 was around 17,546 MTs. It is relevant to note that the Mahazar which was drawn subsequently would clarify the necessary extent. With respect to the veracity of the said Exhibits, it would once again be worthwhile to refer to the evidence of PW-22 Krishna Narayana Kelaskar who has deposed that he had worked as Manager of M/s.SMSPL and he was 158 Spl.C. No.15/2014 required to receive the vehicles with Cargo and supply the stocks to the Barges. He has specifically deposed that the records pertaining to their business were transferred to the computer by Mr. Vishal and on 24.03.2010 they had received a communication from the Port Conservator to provide details of the seizure of Iron ore heaps. He has also identified by the letter at Ex.P-42 which was addressed to them by the Port authorities. He has deposed of furnishing necessary information with respect to seizure of Iron ore and as such they had furnished as per Ex.P-34 and also it is his evidence that subsequently, CBI authorities on 30.10.2013 had again requested to provide statement of inward and outward cargo details of various companies as they were Stevedores and he had collectively produced the information. It is also relevant to appreciate the evidence of PW-25 Venkatesh H.R. who has deposed that they had collected necessary details from their computer 159 Spl.C. No.15/2014 system and had furnished necessary information as per Ex.P-35 stating that the total extent of Iron ore which was seized was 17,546.07 MT of Iron ore. He has also deposed that they had furnished party wise Iron ore stocks marked by forest department and also on the basis of the report furnished to them by various persons who had availed facilities. It was consolidated as the aforesaid quantum as per Ex.P-47 and even they had furnished non-seized Iron ore stock of various companies as per Ex.P-48. It is pertinent to note that M/s. Ashapura Minechem Limited did not figure in the non-seized cargo by the forest department. He has also deposed that roughly around 11,000 MT of Iron ore was brought in by Accused No.2 company from 20.03.2010 to 331.05.2010 wherein they had sold the entire extent to M/s.SMSPL and in order to justify the same, he has stated of raising the Invoices as per Ex.P-84. On perusal of the aforesaid document, it would indicate 160 Spl.C. No.15/2014 that they had raised the Invoice with M/s.SMSPL for 54,053 MT of Iron ore. In other words, it is required to note that M/s. SMSPL being the exporters had purchased various quantities of Iron ore from different traders. In that event, it would fortify the case of prosecution. He has also furnished the document as per Ex.P-86 which would give the description with respect to the party wise cargo of the materials seized which was in the form of email communication. The aforesaid letter though was opposed to be marked, would indicate that correspondences had taken place and based on the same, Invoices came to be raised for the aforesaid quantity. Another document at Ex.P-93 which is a letter addressed by M/s. Asharapura Minechem to M/s.Adani Enterprises indicates that it was delivery order in favour of M/s.SMSPL indicating that the quantity which was being sold was 27,000 MT and further in the said document, the procedure of 161 Spl.C. No.15/2014 determining the weight is shown as "As per weigh bridge". It is also been stated in the document that the transfer was to be effected as "Direct from Seller's plot, buyer to move from seller plot to vessel". It is relevant to note that during the course of cross examination, the learned Counsel for Accused No.2, M/s.Ashapura Minechem has not disputed about the quantum or the letter being marked through the witness. The cross examination made by the learned Counsel for Accused No.4 and 5 on behalf of M/s.SMSPL also indicates of categorical admissions being made by them. In other words, the aforesaid Accused persons, if they had not sold the same should have seriously disputed the marking of the document or disputed about the quantum mentioned therein. The admission being made by them that they had sold 27,000 MT of Iron ore in favour of M/s.SMSPL by Accused No.2 company once again casts burden upon both parties to explain when the 162 Spl.C. No.15/2014 aforesaid quantities were brought inside the port area. It is relevant to note that as on the date of seizure, on 20.03.2010 admittedly 17,546 MT of Iron ore came to be seized and as per the evidence of PW- 25 Venkatesh H.R. the Accused No.2 Company had brought in only an extent of 11,000 MT during the period 20.03.2010 to 31.05.2010.
90. The very important question which is required to be considered at this juncture is whether the aforesaid document furnished by M/s.SMSPL can be looked into. The learned Counsel for Accused have vehemently argued that the document itself is inadmissible and no reliance can be placed on it. However, it is pertinent to note that in the instant case, it is consistently deposed by PW22 - Krishna N.Kelaskar that, the aforesaid records were maintained in their office and it was submitted to the Port authorities. It is well settled principles of law that any records which are maintained during the 163 Spl.C. No.15/2014 course of ordinary business can always be considered as an admissible document. Further, during the course of evidence of PW-25 Venkatesh H.R. he had deposed that they had maintained records in their office and in fact, they had sought for information from the Stevedores. In this regard reliance is placed on the judgment of the Hon'ble Apex court in the judgment rendered in (1998) SCC 410 ( C.B.I V/s V. C. Shukla and others) wherein in a similar case, which is famously known as Jain Hawala case a similar question was posed that whether the entries made in book of accounts or loose sheets can be considered as admissible evidence as contemplated under the provisions of section 34 of the Indian Evidence Act. For the sake of profit the relevant portion is extracted which reads as follows:
17. From a plain reading of the section it is manifest that to make an entry relevant thereunder it must be shown that it has been made in a book, that book is a book of account and that book of 164 Spl.C. No.15/2014 account has been regularly kept in the course of business. From the above section it is also manifest that even if the above require-
ments are fulfilled and the entry becomes admissible as relevant ev- idence, still, the statement made therein shall not alone be suffi- cient evidence to charge any per- son with liability. It is thus seen that while the first part of the sec- tion speaks of the relevancy of the entry as evidence, the second part speaks, in a negative way, of its evidentiary value for charging a person with a liability. It will, therefore, be necessary for us to first ascertain whether the entries in the documents, with which we are concerned, fulfil the require- ments of the above section so as to be admissible in evidence and if this question is answered in the affirmative then only its probative value need be assessed.
18. "Book" ordinarily means a col- lection of sheets of paper or other material, blank, written, or printed, fastened or bound to-
gether so as to form a material whole. Loose sheets or scraps of paper cannot be termed as "book"
for they can be easily detached and replaced. In dealing with the word "book" appearing in Section 34 in Mukundram v. Dayaram [AIR 1914 Nag 44 : 10 Nag LR 44] a de-
cision on which both sides have placed reliance, the Court ob-
served:
"In its ordinary sense it signifies a collection of sheets of paper bound together in a manner which can-165 Spl.C. No.15/2014
not be disturbed or altered except by tearing apart. The binding is of a kind which is not intended to be moveable in the sense of being un- done and put together again. A collection of papers in a portfolio, or clip, or strung together on a piece of twine which is intended to be untied at will, would not, in or- dinary English, be called a book. ... I think the term 'book' in Sec- tion 34 aforesaid may properly be taken to signify, ordinarily, a col- lection of sheets of paper bound to- gether with the intention that such binding shall be permanent and the papers used collectively in one volume. It is easier however to say what is not a book for the pur- poses of Section 34, and I have no hesitation in holding that un- bound sheets of paper, in whatever quantity, though filled up with one continuous account, are not a book of account within the purview of Section 34.
We must observe that the afore- said approach is in accord with good reasoning and we are in full agreement with it. Applying the above tests it must be held that the two spiral notebooks (MR 68/91 and MR 71/91) and the two spiral pads (MR 69/91 and MR 70/91) are "books" within the meaning of Section 34, but not the loose sheets of papers contained in the two files (MRs 72/91 and 73/91).
19. The next question is whether the above books fulfil the other re- quirements of Section 34 so as to be admissible in evidence. Mr Altaf 166 Spl.C. No.15/2014 Ahmed, the learned Additional So- licitor General appearing for the appellant, submitted that the in- terpretation of the High Court that the expressions "books of account"
and "business" appearing in the above section refer and relate to only such business as may exist between two persons such as a seller and purchaser, creditor and debtor, is anomalous for such a truncated view would disable law from dealing with illicit business and situations connected there- with, such as the case in hand, where a conspiracy was hatched to receive money through hawala channels and other sources and to distribute it as bribes to politicians to influ- ence favourable decisions from them. According to Mr Altaf Ahmed, the expression "business" under Section 34 should receive the widest possible meaning and should be understood and con-
strued to mean and include all such efforts of people, which, by varied methods of dealing with each other are designed to improve their individual economic condi- tions and satisfy their desires. He submitted that any book in which monetary transactions are recorded and reckoned would an-
swer the description of "book of account" within the meaning of the aforesaid section. Relying upon the dictionary meanings of the above two words, namely, "business" and "account" and the interpretations given to those words by various courts of law, he submitted that the book (MR 71/91) and the connected documents 167 Spl.C. No.15/2014 would clearly prove that they were books of account maintained in re- spect of the illegal business that the Jains were carrying. His last contention on this aspect of the matter was that the transactions contained in MR 71/91 and the connected documents were an in-
herently credible record of the business in question and the books were maintained with such regu-
larity as was compatible with the nature of the business the Jain brothers were carrying and conse- quently those books would be ad-
missible in evidence under Section
34.
21. The word "account" has been defined in Words and Phrases, Per- manent Edn., Vol. I-A at pp. 336 to 338 to mean (i) a claim or demand by one person against another cre- ating a debtor-creditor relation; (ii) a formal statement in detail of transactions between two parties arising out of contracts or some fiduciary relation. At p. 343 of the same book the word has also been defined to mean the preparation of record or statement of transac-
tions or the like; a statement and explanation of one's administra- tion or conduct in money affairs; a statement or record of financial transactions, a reckoning or com- putation; a registry of pecuniary transactions or a reckoning of money transactions; a written or printed statement of business deal- ing or debits and credits; or a cer- tain class of them. It is thus seen that while the former definitions give the word "account" a restric- tive meaning the latter give it a 168 Spl.C. No.15/2014 comprehensive meaning. Similarly is the above word defined, both re- strictively and expansively, in Black's Law Dictionary (Sixth Edn.) to mean:
"A detailed statement of the mu- tual demands in the nature of debit and credit between parties, arising out of contracts or some fiduciary relation. A statement in writing, of debits and credits, or of receipts and payments; a list of items of debits and credits, with their respective dates. A statement of pecuniary transactions; a record or course of business deal- ings between parties; a list of statement of monetary transac- tions, such as payments, losses, sales, debits, credits, accounts payable, accounts receivable, etc., in most cases showing a balance or result of comparison between items of an opposite nature."
28. That brings us to the question whether it was "regularly kept" so as to satisfy the last requirement of Section 34 to be admissible in evidence as a relevant fact. Mr Altaf Ahmed submitted that the above question has got to be an-
swered keeping in view the nature of business the Jain brothers were carrying on and that when MR 71/91 is scanned in that perspec- tive it is obvious that it was regu- larly kept. In refuting the above contentions Mr Sibal relied upon § 1550 of American Jurisprudence, Proof of Facts (Vol. 34, Second Se- ries) wherein it has been observed that not merely regularity is re- quired; the entry must have been 169 Spl.C. No.15/2014 fairly contemporaneous with the transaction entered. He also re- ferred to § 1526 of the same book which reads as under:
"The entry should have been made at or near the time of the transac- tion recorded -- not merely be- cause this is necessary in order to assure a fairly accurate recollec- tion of the matter, but because any trustworthy habit of making regu- lar business records will ordinar- ily involve the making of the record contemporaneously. The rule fixes no precise time; each case must depend on its own cir- cumstances."
(emphasis supplied) Mr Sibal submitted that from a cursory glance of MR 71/91 it would be apparent that the entries therein were not contemporane-
ously made; and, on the contrary, they were made monthly which necessarily meant that those en- tries were made long after the dates the purported transactions of receipt and disbursement took place.
29. What is meant by the words "regularly kept" in Section 34 came up for consideration before different High Courts: and we may profitably refer to some of those decisions cited at the Bar. In Ram-
chand Pitambhardas v. Em-
peror [19 IC 534 : (1913) 14 Cri LJ 262] it has been observed that the books are "regularly kept in the course of business" if they are kept in pursuance of some continu- ous and uniform practice in the 170 Spl.C. No.15/2014 current routine of the business of the particular person to whom they belong. In Kesheo Rao v. Ganesh [AIR 1926 Nag 407 :
95 IC 128] the Court interpreted the above words as under:
"The regularity of which Section 34 speaks cannot possibly mean that there is no mistake in the ac- counts, as that would make the section a dead letter; no accounts could be admitted in evidence till they had been proved to be abso- lutely correct, which is in itself an impossible task and also cannot be begun till they have been admit- ted in evidence. Regularly or sys- tematically means that the ac- counts are kept according to a set of rules or a system, whether the accountant has followed the rules or system closely or not. Nor is there anything in the section that says the system must be an elabo- rate or reliable one. Both those matters, the degree of excellence of the system and the closeness with which it has been followed, affect the weight of the evidence of an entry, not its admissibility. The roughest memoranda of accounts kept generally according to the most elementary system, though often departing from it, are admis- sible in evidence, but would of course have no weight."
39. A conspectus of the above deci- sions makes it evident that even correct and authentic entries in books of account cannot without independent evidence of their trustworthiness, fix a liability upon a person. Keeping in view the 171 Spl.C. No.15/2014 above principles, even if we pro- ceed on the assumption that the entries made in MR 71/91 are cor-
rect and the entries in the other books and loose sheets (which we have already found to be not ad-
missible in evidence under Section
34) are admissible under Section 9 of the Act to support an inference about the former's correctness still those entries would not be suffi- cient to charge Shri Advani and Shri Shukla with the accusations levelled against them for there is not an iota of independent evi-
dence in support thereof. In that view of the matter we need not dis- cuss, delve into or decide upon the contention raised by Mr Altaf Ahmed in this regard. Suffice it to say that the statements of the four witnesses, who have admitted re- ceipts of the payments as shown against them in MR 71/91, can at best be proof of reliability of the entries so far as they are con-
cerned and not others. In other words, the statements of the above witnesses cannot be independent evidence under Section 34 as against the above two respon-
dents. So far as Shri Advani is concerned Section 34 would not come in aid of the prosecution for another reason also. According to the prosecution case itself his name finds place only in one of the loose sheets (Sheet No. 8) and not in MR 71/91. Resultantly, in view of our earlier discussion, Section 34 cannot at all be pressed into service against him.
172 Spl.C. No.15/2014
91. The aforesaid document would clearly indicate as per the evidence of PW-25, that it was maintained by their office in the ordinary course of business. I have also bestowed my anxious reading to the document at Ex.P-84 which is also a stock list which was submitted to the CBI authorities, wherein the witness has identified his signature and also the inward and outward details pertaining to all the companies for which they had provided Stevedore facility is furnished by the witness. There is absolutely no dispute with respect to the fact that he was working as Manager at M/s. Adani Enterprises. During the course of cross-examination by Accused No.1, it was elucidated from him that they had given the details of the stock which were noted in their records at that point of time and they had maintained the records in their computer and the extracts were furnished to the CBI authorities. During the course of cross-examination, Accused Nos.4 and 5, it was in 173 Spl.C. No.15/2014 fact suggested that they had furnished details to CID authorities pertaining to a specified period of time. It was also suggested to him that he was not aware of the stocks and other details personally, the witness has deposed that the Supervisor used to maintain the records and they had furnished the report on its basis. It is also been stated by the witness that they used to weigh the Iron ore at Weigh Bridge itself and they had four Weigh Bridges being installed at Belekeri Port. The aforesaid elucidation would clearly support the case of prosecution than that of the Accused. It is the definite case of the prosecution that the stocks which were available and seized as on 20.03.2010 were 17,546 MT at stack No.2. Though the Mahazar gives the description of the material seized in a pictorial manner, the collection of data from the company of Accused No.2 himself would fortify the case of the prosecution. In this regard, I have also carefully appreciated the statement 174 Spl.C. No.15/2014 recorded U/s. 313 of Cr.PC with respect to Accused No.2 Company and Accused No.5, Mr. S.K. Sail who was the Managing Director of the Company. In this aspect, Question No.80 was specifically put to him that, Mr.Vishal Gopal Harikanth was working as Manager of their Company for which he has answered in the affirmative and with respect to the details of the cargo furnished, the Accused No.5 has categorically admitted the same by feigning his ignorance in this regard. It is also the settled principles of law that the suggestions made by the Defence which would go against the Accused is to be taken into account. In this regard, I have relied upon the judgment of the Hon'ble Apex Court reported in 2023 SCC Online SC 355 (Balu Sudam Khalde and another Vs. State of Maharashtra) wherein it has been held as under:-
38. Thus, from the above it is evi-
dent that the suggestion made by the defence counsel to a witness in the cross-examination if found 175 Spl.C. No.15/2014 to be incriminating in nature in any manner would definitely bind the accused and the accused can-
not get away on the plea that his counsel had no implied authority to make suggestions in the nature of admissions against his client.
39. Any concession or admission of a fact by a defence counsel would definitely be binding on his client, except the concession on the point of law. As a legal propo- sition we cannot agree with the submission canvassed on behalf of the appellants that an answer by a witness to a suggestion made by the defence counsel in the cross-examination does not de-
serve any value or utility if it in- criminates the accused in any manner.
40. It is a cardinal principle of criminal jurisprudence that the initial burden to establish the case against the accused beyond reasonable doubt rests on the prosecution. It is also an elemen- tary principle of law that the prosecution has to prove its case on its own legs and cannot derive advantage or benefit from the weakness of the defence. We are not suggesting for a moment that if prosecution is unable to prove its case on its own legs then the Court can still convict an accused on the strength of the evidence in the form of reply to the sugges-
tions made by the defence counsel to a witness. Take for instance, in the present case we have reached to the conclusion that the evi-
dence of the three eyewitnesses 176 Spl.C. No.15/2014 inspires confidence and there is nothing in their evidence on the basis of which it could be said that they are unreliable wit-
nesses. Having reached to such a conclusion, in our opinion, to for- tify our view we can definitely look into the suggestions made by the defence counsel to the eyewit- nesses, the reply to those estab- lishing the presence of the ac-
cused persons as well as the eye-
witnesses in the night hours. To put it in other words, suggestions by itself are not sufficient to hold the accused guilty if they are in- criminating in any manner or are in the form of admission in the absence of any other reliable evi- dence on record. It is true that a suggestion has no evidentiary value but this proposition of law would not hold good at all times and in a given case during the course of cross-examination the defence counsel may put such a suggestion the answer to which may directly go against the ac-
cused and this is exactly what has happened in the present case.
41. The principle of law that in a criminal case, a lawyer has no implied authority to make admis- sions against his client during the progress of the trial would hold good only in cases where dis- pensation of proof by the prosecu- tion is not permissible in law. For example, it is obligatory on the part of the prosecution to prove the post mortem report by examin- ing the doctor. The accused can-
not admit the contents of the post mortem report thereby absolving 177 Spl.C. No.15/2014 the prosecution from its duty to prove the contents of the same in accordance with law by examin-
ing the doctor. This is so because if the evidence per se is inadmis- sible in law then a defence coun- sel has no authority to make it admissible with his consent.
42. Therefore, we are of the opin- ion that suggestions made to the witness by the defence counsel and the reply to such suggestions would definitely form part of the evidence and can be relied upon by the Court along with other evi- dence on record to determine the guilt of the accused.
43. The main object of cross-exam- ination is to find out the truth on record and to help the Court in knowing the truth of the case. It is a matter of common experience that many a times the defence lawyers themselves get the dis-
crepancies clarified arising dur- ing the cross-examination in one paragraph and getting themselves contradicted in the other para-
graph. The line of cross-examina- tion is always on the basis of the defence which the counsel would keep in mind to defend the ac-
cused. At this stage, we may quote with profit the observations made by a Division Bench of the Madhya Pradesh High Court in the case of Govind s/o Son-
eram v. State of M.P. reported in 2005 Cri LJ 1244. The Bench observed in paragraph 27 as un- der:
178 Spl.C. No.15/2014
27. The main object of cross-exam-
ination is to find out the truth and detection of falsehood in hu- man testimony. It is designed ei- ther to destroy or weaken the force of evidence a witness has al- ready given in person or elicit something in favour of the party which he has not stated or to dis-
credit him by showing from his past history and present de-
meanour that he is unworthy of credit. It should be remembered that cross-examination is a duty, a lawyer owes to his clients and is not a matter of great personal glory and fame. It should always be remembered that justice must not be defeated by improper cross- examination. A lawyer owes a duty to himself that it is the most difficult art. However, he may fail in the result but fairness is one of the great elements of advocacy.
Talents and genius are not aimed at self-glorification but it should be to establish truth, to detect falsehood, to uphold right and just and to expose wrongdoings of a dishonest witness. It is the most efficacious test to discover the truth. Cross-examination exposes bias, detects falsehood and shows mental and moral condition of the witnesses and whether a witness is actuated by proper motive or whether he is actuated by enmity towards his adversaries. Cross-ex- amination is commonly esteemed the severest test of an advocate's skill and perhaps it demands be-
yond any other of his duties exer- cise of his ingenuity. There is a great difficulty in conducting cross-examination with creditable 179 Spl.C. No.15/2014 skill. It is undoubtedly a great in- tellectual effort. Sometimes cross- examination assumes unneces-
sary length, the Court has power to control the cross-examination in such cases. (See Wrottescey on cross-examination of witnesses). The Court must also ensure that cross-examination is not made a means of harassment or causing humiliation to the victim of crime [See State of Punjab v. Gurmit Singh, 1996 SCC (Cri) 316]."
44. During the course of cross-ex- amination with a view to dis-
credit the witness or to establish the defence on preponderance of probabilities suggestions are hurled on the witness but if such suggestions, the answer to those incriminate the accused in any manner then the same would defi-
nitely be binding and could be taken into consideration along with other evidence on record in support of the same.
92. The aforesaid judgment aptly applies to the case on hand. The court is not placing its reliance based on the sole testimony of PW-22 and PW-25. The Court has also taken into account of the evidence of PW-23 Vishal Gopal Harikanth who has deposed that he had joined as Office Assistant of Accused No.2 Company, M/s. SMSPL and had worked from 180 Spl.C. No.15/2014 04.11.2005 to November, 2010 and it is his specific evidence that he was processing the appointment of Customs House Agent, preparing Invoices on the basis of sale contract and also looking after correspondences. He has deposed that, CW-50 - Abhay Kocharekar was the Shipping Executive of the Company and A5 Mr.S.K.Sail was the Chairman and Managing Director of the Company and the entire transactions were being made at his directions and he has also deposed that their Company was the service provider who had provided plot area at Belekeri port to various Companies indulging in export business of the Ore. He has in detail explained about the procedures being carried out by the Custom House Agent and also preparation of draft survey report. The relevant evidence which is required to be looked into is the letter dated 11.06.2010 which was shown to him at Ex.P-79 for which he has deposed that the same was issued on the basis of the letter issued by 181 Spl.C. No.15/2014 PW-22 Krishna Kelaskar as per Ex.P-34(A). He has also identified by the inward details of the stock furnished by PW-22 Abhay Kocharekar as per Ex.P-
70. During the course of cross-examination by Accused No.1 it has been elucidated that they had Computer Operators in their Company and on the date of preparing the accounts, it was prepared by Mr. Madhukar Kulkarni. It is also been suggested during the course of cross-examination by Accused No.4 and 5 that the Iron ore which were brought into the port area were properly recorded and noted in the concerned security register and also it was suggested that the Iron ore quantity would be measured at the weigh bridge which were three in numbers in the port area. He has also admitted the suggestion that the forest authorities or the Port Officers had not weighed the Iron Ore at weigh bridge in his presence and it was suggested that A5 - Mr.S.K.Sail was not giving any directions directly to him, but he used to give 182 Spl.C. No.15/2014 directions to Mr. Madhukar Kulkarni. In other words, the aforesaid suggestion itself would demolish the case of the Accused since it is elucidated that the Iron Ores were not weighed by the port authorities which is once again contrary to the directions issued by the Director of Port and Inland Water Services as per his letter dated 12.03.2010 which is already discussed above and the negligence or acquiescence on the part of Accused No.1 would only fortify the case of prosecution with respect to entering into conspiracy. It is not the case of the Accused that, PW22 - Krishna Kelaskar and PW23 - Vishal Gopal Harikanth were not the employees of Accused No.4 Company. However, it is specifically admitted by them to be their employees and also categorical admissions are being made by them with respect to the documents furnished about inward and outward cargo stock and also the extent of cargo seized by the forest authorities. In short, even if it is contended that the 183 Spl.C. No.15/2014 Mahazar was not depicting the correct picture about the quantity of the Iron ore seized, the same is clarified by obtaining necessary documents which were being maintained by them in the ordinary course of business by the CBI investigating officer.
93. The other question which requires to be answered at this juncture itself is whether the details furnished by the Accused themselves can be relied upon when the Mahazar drawn at the earliest point of time is not depicting the exact picture. At the cost of repetition, it is relevant to note that the case had commenced by drawing a Mahazar on 15.03.2010 and registering of FOC No.17/2009-10 and later on drawing Mahazar on 20.03.2010, 26.03.2010 and 29.03.2010 by forest authorities. However, in the interregnum the investigation was entrusted to the local police by filing of a complaint by the ACF, Ankola, subsequently on noticing theft of Iron ore. Thereafter, the investigation was handed over to CID 184 Spl.C. No.15/2014 authorities and later on to CBI by the kind intervention of the Hon'ble Apex Court. On entrusting of investigation to the CBI authorities in the year 2013, the investigation had commenced by registering the FIR in RC 17A/2013 i.e. almost three years after drawing the Mahazar by the forest authorities. Under the circumstances, the Mahazar though it was drawn at the earliest point of time requires to be appreciated with the materials collected by the CBI subsequently. Admittedly, much water had flown down when the investigation was entrusted to CBI. As such the Mahazar though was a document which was in existence at the earlier point of time is required to be considered with the subsequent documents collected by the CBI.
94. In the instant case the provision of section 379 of IPC has also been invoked by the prosecution. It is the contention of the prosecution that subsequently after drawing the mahazar by the forest 185 Spl.C. No.15/2014 authorities on 15/3/2010 and also on 20/03/2010 the quantum of iron ore stored at Belekeri port was determined by the forest authorities. It has been contented by the forest authorities that as on the date of drawing the mahazar as per Exhibit P 8 to Ex P10 the quantum of iron ore which was stored at Belekeri Port report was determined at about 5,00,000 metric ton. However, it has been contended by the forest authorities and also by the prosecution that subsequently the quantum of iron ore which was stored at Belekeri port was illegally exported by the accused process by entering into a criminal conspiracy with each other. In order to better appreciate the same, the facts that had taken place immediately after drawing the mahazar on 20/03/2010 and also on 29/3/2010 is required to be considered. Once again at the cost of repetition it is to be appreciated that immediately after completing the process of seizure on 23/2/1010 the forest 186 Spl.C. No.15/2014 authorities had handed over the custody of the seized Iron ore to the port authorities and the same has already been discussed in detail supra. Though it is seriously disputed by the learned counsel for the accused persons that there was no specific entrustment of property to the accused No.1 Mahesh J Beliye, the same is already distinguished in the earlier part of the judgment wherein the evidence of PW-10 Mr R Anand is appreciated. In his chief examination he has specifically stated that on 24/3/2010 they had received a letter from the forest department and though he did not know the contents of the same, he had a affixed his signature to the said letter which was as per Ex.P-17 and later on he had handed over to the concerned official. At this juncture it would also be appropriate to look into the evidence of PW 18 Yogesh Anand Shetty, who has deposed that he was working as Assistant Port conservator and in the year 2003 he was deputed to Belekeri Port as 187 Spl.C. No.15/2014 Assistant Port conservator. Further it is stated that on 20/03/2010 they had received a letter from Range Forest Officer, Ankola informing about the seizure of Iron ore cargo by them on as and where is basis and the said letter was marked as EX P-40 and on the said letter he had also identified the signature of the Port office along with the rubber stamp and it is his contention that immediately after the receipt of the letter accused No.1 had addressed a letter to the Forest Department Officials by stating that seizure of Iron ore was not within their knowledge and they were not responsible for the same and only stevedores were responsible. However, in my earlier part of judgment it has already been discussed in detail that after receipt of the letter several correspondences had taken place in the Department of Port Authorities and also it has been discussed in detail about the circular which was issued on 12/3/2010 i.e., which was prior to the seizure being made by the forest authorities. in the 188 Spl.C. No.15/2014 aforesaid letter it was specifically stated that the Port authorities were required to verify the permits, passes and other ancillary documents which are required to let in a cargo vehicle inside the port area. The other correspondence is which had taken place also clearly indicates that subsequently accused No.1 had assumed the role of custodian of the properties which were entrusted to him by the forest authorities which is also been discussed in detail supra. Immediately after the Mahazar and entrustment of the Iron ore to the port authorities, they were the custodian of the same. It is the contention of the prosecution that subsequently, after the incident the seized Iron ore was stolen by the Accused person. In order to better appreciate the same, the evidence of PW-11 Jagadish Tandel is required to be appreciated. Mr. Jagadish Tandel in his chief examination has deposed that he was deputed to look after the Iron ore heaps which were stored at Belekeri port during the period 189 Spl.C. No.15/2014 27.03.2010 to 11.06.2010 along with one Ramachandra Nayak. It is his evidence that on 26.04.2010 they had noticed that the officials of A4, M/s. SMSPL had started to meddle with the Iron ore stored at Belekeri port. It is his contention that the same was reported to the Port Conservator as per his letter which is marked as Ex.P-18. He has also deposed that M/s.SMSPL employees were using dumpers and excavators and in fact, he had stated the vehicle number of the lorry as KA-30 8963 which was being used to transport the Iron ore to the barges. Further, he has stated about stating the vehicle number also in his representation addressed to the Port Conservator. In his further examination, he has stated that again on 28.08.2010 the employees of A4, M/s.SMSPL had started to meddle with the same and again he had intimated to the Port Conservator along with Ramachandra Nayak as per Ex.P-19. I have bestowed my anxious reading to both 190 Spl.C. No.15/2014 representations being given by the aforesaid witness. Further, in the said letter the witness has specifically described about the registration number of the dumper trucks and also, they have specifically stated about pay loader which was not having any registration number and they had also requested the Port Conservator to re-think about issuance of clearance certificate. In a way the aforesaid letter also vindicates the case of the prosecution that it was the duty of the Port Conservator to issue clearance. Repeatedly, it has been argued by the learned Counsel for accused No.1 that no duty is attributed to accused No.1 with respect to preserving and issuance of NOC to the materials which are being exported. It is repeatedly contended that the main duty of the Port Conservator is to collect necessary port clearance charges and he is not concerned about the permits or otherwise. It has been argued that since Belekeri Port is a Custom Notified Area, the provisions of Customs 191 Spl.C. No.15/2014 Act will have to be made applicable and as such the Port Conservator will not be liable for any of the alleged illegal acts. Though the said submission seems to be correct at the first instance, when the same is appreciated with the correspondences dated 12.03.2010 which is discussed supra by the Director of Ports and Inland Water Services, Bengaluru, wherein it was directed to the Port Conservator to verify the permit and other requisite documents coupled with the evidence of PW11 - Jagadish Thandel, it would indicate that a definite duty was casted upon the Port Conservator. It is also relevant to note that as per the letter dated 28.04.2010 as per Ex.P-19, once again the act of Accused No.2 company in meddling with the seized Iron ore was reported to the higher authorities. During the course of cross- examination, it was suggested to him that several lorries used to dump the Iron ore material in the very same place where the seized Iron ore heaps were 192 Spl.C. No.15/2014 stored. In other words, the Accused is categorically admitting the seizure of Iron ore to certain extent. Further, it was suggested to him that he does not know the extent of the area which was allotted to M/s. SMSPL and he has also categorically admitted that about 81,000 Sq.Mtrs. of area was allotted to M/s. SMSPL. Further, during the course of cross examination it was elucidated from the witness that the Port Conservator used to give clearance certificate to the ships which used to come to Belekeri port. Further, he has deposed that the Port Conservator had orally directed to prevent the officials of M/s. SMSPL from loading the Iron ore at Belekeri port. Under the circumstances, the Accused No.1 cannot shrug off from his responsibility by stating that he was not responsible for taking care of the seized materials at Belekeri port. Though the witness, PW-10
- R.Anand was cross-examined with respect to the extent of area leased out to M/s. SMSPL, in my 193 Spl.C. No.15/2014 humble opinion, there cannot be much dispute with respect to the same since the lease agreement for use of port land for stacking and import/export of Iron ore and other bulk cargos at Belekeri port entered between the Port authorities who were the Lessors and M/s. SMSPL being represented by A5 - Mr. S.K.Sail is marked as Ex.P14 which would clearly indicate that the agreement was entered for a period of 30 years commencing from 18.01.2006 and in that it is specifically stated at Sl.No.6 that the Lessee who is none other than M/s. SMSPL shall not sub-let the use of demised premises or any buildings/structures thereon to anybody and further, it has been stated that the Port authorities may revoke the lease at any time if the Lessee fails to deliver any wreck or cargo salvaged to Government and further, the Lessee was required to obtain permission, NOC, clearance certificate, etc. from the concerned competent authorities of the department of Environment, 194 Spl.C. No.15/2014 Karnataka Pollution Control Board and from any other Departments/ competent authorities prior to commencement of construction activities or carrying out any activities in the demised premises. The aforesaid clause would clearly indicate that it was the duty of the Stevedore to collect necessary documents. The clause is required to be looked into from another perspective also since a duty is casted upon the Lessee/SMSPL/Stevedore to obtain necessary clearance certificate and in the event of non-obtaining such certificate, the Lessor/Port Authorities were always empowered to look into the same. The aforesaid clauses once again vindicates the case of prosecution and defenestrate the contention of the Accused Counsels. That apart, the aforesaid lease document is also enclosed with the Schedule and also the Map which would indicate the extent of area. Though it may be argued that the aforesaid question of enquiring the extent of area leased out to M/s. 195 Spl.C. No.15/2014 SMSPL was put to PW10 - R.Anand to ascertain whether he knew whose area the act was being committed, the same requires to be answered by looking into the evidence of PW6 - Deepak A. Waingankar. Further, in the evidence of PW10, he has stated of addressing another letter on 29.10.2010 bringing it to the notice of the Port Conservator about the theft being committed by Accused No.4 Company. When the aforesaid document at Ex.P-19 is carefully appreciated, it would clearly indicate that he had referred to his earlier correspondences and again he has specifically stated that on 29.04.2010 at about 11.30 a.m. he had verified the heap and the heap was renumbered as 5, 6 & 7 afresh and it was lesser than the earlier extent. During the course of cross examination apart from denial nothing was elucidated from him. At this juncture, the evidence of PW6 - Deepak A. Waingankar is required to be looked into. He has stated that in the year 2010, Mr. Ganesh was 196 Spl.C. No.15/2014 the Director of Ports and Inland Water Transport and in the month of April, 2010 he was directed to assist the Port Conservator in controlling the movement of lorries and at that point of time, the Accused No.1 was the Port Conservator at Belekeri. He has also deposed that during his visit at Belekeri Port, he came to know about the seizure of Iron ore and he had also noticed that it was difficult to distinguish the seized and unseized Iron ore heaps. As such, he had addressed a letter to the Port Conservator about non- existence of marking. It is his definite evidence that heap near Weigh Bridge No.3 was being partly removed which belonged to M/s. SMSPL and further he has deposed of addressing a letter on 26.04.2010. He has also identified another letter dated 24.04.2010 as per Ex.P-149. The letter at Ex.P-149 would clearly indicate that he was reported about meddling with the seized Iron ore and in fact, he had stated that the same was brought to the notice of the Port 197 Spl.C. No.15/2014 Conservator and as per Ex.P150 he had addressed a letter to the Port Conservator, Belekeri wherein he had directed them to take the assistance of police for protecting the same. Even the letter at Ex.P-149 addressed by him would indicate the very same fact. During the course of his cross-examination, it was suggested to him that he had created the aforesaid letter. All the aforesaid aspects only fortifies the case of prosecution that indeed the employees of Accused No.4, M/s. SMSPL being represented by A5 - Mr. S.K.Sail had meddled and stolen the Iron ore seized by the forest authorities.
95. The other interesting aspect which is required to be addressed at this juncture is whether the seizures being made by the forest authorities at the inception can be considered as valid. It is vehemently argued by the learned Counsel for the Accused that the forest authorities did not have any right or authority to enter the Belekeri port and they 198 Spl.C. No.15/2014 were not empowered to seize the same. It is the specific contention that the forest authorities were having the right only during the transit and they were empowered to seize the materials only if it indicates that the material which is being transported was a forest produce. In other words, if the minerals are extracted from revenue lands, the same would be out of the purview of the forest authorities as it cannot be construed as a forest produce. In order to appreciate the same, the evidence of PW35 Mr. Takat Singh Ranawat is required to be appreciated. Mr. Takat Singh Ranawat who is an IFS Officer has reposed that in the year 2010 he was posted as Assistant Conservator of Forest and Officer on Special Duty at Karwar division. He has deposed of furnishing a documents with permits pertaining to M/s. PJS Overseas Limited as per Ex.P-124(A). During the course of cross examination by Accused Nos.4 and 5 nothing much was elucidated to him. However, during 199 Spl.C. No.15/2014 the course of cross examination made by Accused No.2 and 3 it was suggested to him that A2 Company had furnished documents to their office as per the directions of the Hon'ble High Court of Karnataka and he has admitted of not verifying the documents personally. He has feigned his ignorance about the fact of transportation being made by M/s.Ashapura Minechem Limited. In order to better appreciate the aforesaid aspects, it would be appropriate to look into the provisions of Section 2(7) of Forest Act, 1963 which reads as follows:-
(7) "forest produce" includes,--
(a) the following whether found in or brought from a forest or not, that is to say,-- timber, charcoal, caoutchouc, catechu, 1[sandalwood]1, lootikai (Capparis Mooni), wood oil, sandalwood oil, resin, 2[rubber latex, 3[x x x]3]5 natural varnish, bark, lac, mahua or ippe (Bassia latifolia) flowers and seeds, seed of Prosopis juliflora, kuth, and temburni or tupra (Diospyros Melanoxylon) leaves, rosha (Cymbopogon Martini) grass and oil and myrabolams (Terminalia Chebula, Terminalia Belerica and 4[Phyllanthus Emblica, 200 Spl.C. No.15/2014 ramapatre and shigakai)]4; and
(b) the following when found in, or brought from, a forest, that is to say:-
(i) trees and leaves, flowers and fruits, and all other parts or produce not hereinbefore mentioned, of trees;
(ii) plants not being trees, (including grass, creepers, reeds and moss), and all parts or produce of such plants;
(iii) wild animals and pea fowls and skins, tusks, horns, bones, silk cocoons, honey, and wax and all other parts or produce of wild animals, pea fowls and insects; and
(iv) peat, surface soil, rock, and minerals (including limestone), laterite, mineral oils, and all products of mines or quarries;
and [(iva) "cocoa beans or pods, garcinia fruits, thornless bamboos, Halmaddi, Raldhupa and Kaidhupa";]
(v) such other products of forests as the State Government may, by notification, declare to be forest produce;
96. Further, as per Section 80 of the Act, certain presumptions are to be drawn under the Act. For the sake of benefit, the provision of Section 80 is extracted, which reads as follows:-
80. Presumption that forest produce belongs to Government.201 Spl.C. No.15/2014
-- When in any proceedings taken under this Act or in consequence of anything done under this Act or under any other law for the time being in force, a question arises as to whether any forest produce is the property of 1964: KAR. ACT 5] Forest 397 the State Government, such produce shall be presumed to be the property of the State Government until the contrary is proved, and in case of any prosecution the burden of proving the contrary shall lie on the accused.
97. When the aforesaid provision of law is appreciated, that whenever there arises a question that whether the produce is the property of the State Government, then it shall be presumed to be the property of the State Government unless the contrary is proved and in case of any prosecution, the burden of proving the contrary shall lie on the Accused person. In the instant case, it is contended that the materials which were seized by the forest authorities were to be construed as forest produce. However, the same is seriously disputed by the defence Counsel. However, in the absence of any material being 202 Spl.C. No.15/2014 produced by the Accused persons to indicate that the Iron Ores which were stored at Belekeri Port were transported under valid license and permits, the same is required to be construed as a foresaid produced only. That apart, as per Karnataka Forest Rule, 1969 and in particularly with Rule 162 it has been specified that no forest produce shall be booked for transport by Rail or Sea unless the same is covered by a valid pass or way permit. Further, the booking authority is required to affix their seal and note the number and date of the shipping bill on the pass or way permit. That apart, a duty is also cast upon them to report to the nearest police or foresaid authorities about forest produce not covered by a valid pass or Way Permit. At this juncture, it is relevant to note that during the course of cross examination of PW-26 R.Gokul it was categorically admitted by the Accused No.2 that they had obtained interim order from the Hon'ble High Court of Karnataka with a directions to the forest 203 Spl.C. No.15/2014 authorities to get the seized materials released on production of relevant documents. Further, it was suggested that since the forest authorities had not verified the documents and as Belekeri port being seasonal port was getting closed on 31.05.2010, they had sold the seized materials to M/s.SMSPL. The aforesaid specific suggestions would vindicate the case of prosecute that Accused No.2, M/s. Ashapura Minechem had sold Iron ore without obtaining necessary permission. For the sake of arguments, if the forest authorities had not adhered to the kind directions of the Hon'ble High Court, nothing prevented them from taking necessary action in accordance with law. In the instant case, it was suggested by Accused No.1 that the Port Conservator was only a booking authority. If the aforesaid aspect is carefully appreciated with the evidence of PW39 - Mr. Biswajit Das who was the investigating officer who had filed the charge sheet. It is pertinent to note that 204 Spl.C. No.15/2014 it was suggested that the port authorities were required to collect wharfage, anchorage charges and it was admitted by the witness that the Port Conservator was not having any authority to issue permission to export any material. However, he has denied the suggestion that the port authorities were not the booking authority. In this regard reliance is placed on the judgment rendered by the Hon'ble High Court of Karnataka, reported in 2010 SCC Online Kar 2298 (ILC Industries Limited -Vs- State of Karnataka) wherein it has been held as follows:-
30. Sri Thiruvengadam, learned counsel for the petitioners, has raised another legal issue with regard to repugnancy under the provisions of the Customs Act and the Karnataka Forest Act.
In this regard, he would contend that iron ore is an item covered under the Union List and therefore, it is only by Parliamentary legislation its import or export or mining could be determined. He submits, as iron ore falls under Union List, it is only the Union of India which has to issue the notification regarding restraint on its export as envisaged under Section 11-I of the 205 Spl.C. No.15/2014 Customs Act. He submits, provisions of Section 62 of the Forest Act conferring power on forest officers to seize such iron ore considering it as 'forest produce' does not empower the forest officer to enter upon the area coming within the Customs Act. In other words, it is urged, as iron ore was on the precincts of the port liable for customs duty, in the absence of any notification by the Central Government under Section 11-I of the Customs Act banning its export, the forest officer cannot invoke Section 62 of the Forest Act to seize such iron ore. This is on the basis that when there is a Parliamentary legislation and State legislation, it is the Parliamentary legislation which prevails and not the State legislation. This issue has to be decided with reference to case laws.
31. As regards the legal position, it is well settled that in the case of GOVERNMENT OF ANDHRA PRADESH v. J.B. EDUCATION SOCIETY (AIR 2005 SCC 2014) the apex court held that the question of repugnancy between a parliamentary legislation and state legislation can arise in two ways. First, where legislations enacted with respect to matters in their allotted sphere overlap and conflict. Second, where the two legislations are with respect to matters in the concurrent list and there is a conflict. In both the situations, the 206 Spl.C. No.15/2014 parliamentary legislation will predominate, in the first, by virtue of non-obstnate clause in Article 246(1) of the Constitution. In the second, by reason of Section 245(1) of the Constitution. Clause (2) of Article 245 deals with a situation where the State legislation having been reserved and having obtained President's assent prevails in that state, this again is subject to the proviso that Parliament can a gain bring as legislation to override even such state legislations. Keeping this principle in mind, we have to examine the case at hand.
32. In the instant case, FIR registered against the petitioners is for the offences punishable under Sections 2(7)
(b)(iv), 62, 80 of the Forest Act and Rules 143, 162 of the Forest Rules. Section 2(7)(b)(iv) is the defining section which defines 'forest produce'. Section 62 is a part of Chapter 9 and deals with penalties and procedures. It postulates when there is reason to believe that a forest offence has been committed in respect of any forest produce, such produce together with all tools, boats, vehicles or cattle or any other property used in committing such offence, may be seized by any forest officer or police officer. Sub-section (2) envisages any forest officer or police officer. If he has reason to believe that the vehicle has been used for transportation of 207 Spl.C. No.15/2014 forest produce in respect of which there is reason to believe that offence has been committed or is being committed, he may require the driver or other person in charge of the vehicle to stop the vehicle and cause it to remain stationary as long as it may reasonably be necessary to examine the contents of the vehicle and inspect all records relating to the goods carried which are in the possession of such driver or other person in charge of the vehicle.
Therefore, this provision confers the power of seizure on the forest officer when he suspects commission of any forest offence relating to forest produce defined under Section 2(7) referred to above.
33. Sri Thiruvengadam would contend that this provision could not be invoked as the property involved is iron ore to be exported which is covered by the provision of Section 11-H and 11-I of the Customs Act and therefore, the provisions of Customs Act being a Parliamentary legislation would prevail, and not the Forest Act which is a State legislation. This proposition would have beer accepted had there been any conflict in the provisions of the two legislations. Section 11-H envisages "illegal export" means the export of any goods in contravention of the provisions of this Act or any other law for the time being in 208 Spl.C. No.15/2014 force. This means, if there is export of goods in contravention of the Forest Act, then it comes within other laws referred to in clause H. The case at hand relates to transportation of iron ore extracted from forest area and being exported without forest permits. Therefore, the provision of Section 11-H of the Customs Act is attracted.
34. Section 11-I has also been referred to by the learned counsel to contend that unless the Central Govt., by notification, specifies iron ore to be one of the goods which is likely to illegally exported, iron ore is excluded from the Act.
But a reading of Section 11-I shows, 'if, having regard to the magnitude of illegal export of goods of any class or description, the Central Govt. is satisfied that it is expedient in public interest to take special measures for the purpose of checking illegal export or facilitating detection of goods which are likely to be illegally exported, it may, by notification in the official gazette, specify such goods or description.' This provision is the enabling provision which permits the Central Govt. to specify the goods for the purpose of taking the required measures for checking illegal export for facilitating detection of likely goods to be included.
This provision, therefore, does not exclude applicability of Forest Act as iron ore which is 209 Spl.C. No.15/2014 a forest produce defined under Section 2(7)(b)(iv) of the Act, with regard to which if any offence is committed, is liable to be seized under Section 62 of the Forest Act. Based on this discussion, it has to be held that there is no repugnancy in the provisions relating to seizure of iron ore in the Parliamentary legislation, i.e. Customs Act and the State legislation, i.e. Forest Act. The contention in this regard is, therefore, over-ruled.
35. Based on the discussions above, points framed at paragraph no. 9 are answered as under:
Point no. (1) : is answered in the affirmative. By virtue of Section 62-A of the Forest Act, the forest officer above the rank of a RANGE FOREST OFFICER named in Section 62-A of the Act is equated to a police officer for the purpose of investigation of offences punishable under the provisions of the Forest Act.
Point no. (2) : Consequently, it has to be held that the forest officer referred to under Section 62-A of the Forest Act is competent to apply to the magistrate under Section 155(2), CrPC, for grant of permission to investigate non- cognizable offences under the provisions of the Forest Act. He need not apply to the jurisdictional police officer through a complaint to seek such permission form the magistrate.210 Spl.C. No.15/2014
Point no. (3) : In the instant case, on facts it has to be held that the forest officer investigating the case in FCR 17/09-10 and FIR 189/10 had obtained prior permission for effecting seizure of the contraband and iron ore which is the subject matter of investigation.
Point no. (4) : Consequently, it is held that the seizure effected by the investigating officer for was after taking prior permission under Section 155(2), CrPC, and hence not vitiated.
36. Based on the discussion in the foregoing paragraphs, I am constrained to discount all contentions and grounds urged by the petitioners regarding competence of forest officers to investigate offences under the Forest Act, contention regarding untenability of investigation in FCR No. 17/09-
10, Crime No. 189/10 and P.C. 54/10 as devoid of merits. All grounds urged by the petitioners seeking quashing of proceedings against them mentioned above are rejected.
37. In the result, Crl.P. 7645/10 seeking quashing of proceedings in FCR 17/09-10, Crl.P. 7647/10 seeking quashing of proceedings in FIR 189/90 and Crl. P. 7673/10 seeking quashing of the entire proceedings in P.C. 54/10 are dismissed. All the interim orders granted in these petitions are dissolved and there shall be no impediment to 211 Spl.C. No.15/2014 the investigating officer to proceed with the investigation.
98. Though the aforesaid judgment was discussed in my earlier part of judgment, it was with respect to the competency to register FOC case by looking into the provisions of Section 155(2) of Cr.PC. However, the aforesaid judgment is again relied upon since it has been held by the Hon'ble High Court that any seizures being made is to be construed as forest produces. Even otherwise, in the instant case no material has been produced by the Accused persons to indicate that the materials which were extracted were not the forest produces. Under the circumstances, the material which has been produced before the Court with respect to seizure is to be construed as a forest produce only.
99. Now, the other aspect which is required to be appreciated that what is the alleged amount of Iron ore which were stolen. As already discussed above and at the cost of repetition and the Mahazar and 212 Spl.C. No.15/2014 Ex.P9 and Ex.P10 which were drawn on 26.03.2010 and 29.03.2010 respectively, the extent of Iron ore which was seized in the instant case was approximately determined as 5,00,000 MT. It has been vehemently contended that the aforesaid Mahazar does not have any legal backing since it was drawn with assumptions and presumptions. As already discussed supra, the Court has placed reliance on the document which is furnished by PW- 25 of M/s. Adani Enterprises. The document at Ex.P- 35 would clearly indicate the total stock which was available with respect to M/s. Ashapura Minechem Limited. In this background, what is required to be appreciated is the total stock which was brought in prior to seizure and as per the aforesaid letters, it would clearly indicate that the total extent of the Iron ore which were brought into Belekeri Port were 17,546. In other words, the inward details which is furnished commencing from 13.01.2010 to 213 Spl.C. No.15/2014 20.03.2010 clearly indicates of the aforesaid stock and further, as per Ex.P-35 the Accused No.2 Company themselves have given a statistics to the investigating agency the aforesaid aspect. Further, as per Ex.P-169 dated 25.05.2010 which is addressed by M/s. SMSPL to the Port Conservator at Belekeri port, it has been specifically stated that the Vessel MV Columbia was loaded from their jetty with 44,500 MT of cargo which belong to M/s.SMSPL and the said cargo was not seized by forest department. The aforesaid letter is required to be considered with the document at Ex.P-62. In the aforesaid documents, the cargo details of M/s.Ashapura Minechem Limited has been furnished which is extracted as follows:-
Cargo details of M/s.Ashapura Minechem Limited:
Sl. Party Stock as Stock From From Total Bal No Name on inward stock up cargo cargo . 20.3.2010 after to inwarde loaded anc
21.3.10 20.3.2010 d after C+D to 21.3.10 e 31.5.10 A B C D E 1 Sale 0 27995 0 27967 27967 28 to SMSP L 214 Spl.C. No.15/2014
100. In the aforesaid exhibit itself, the details of the Iron ore which were purchased by M/s.Ashapura Minechem is mentioned in detail which is commencing right from 13.01.2010 to 04.05.2010 which also includes the number of trips involved and the vehicle numbers which had carried the same to Belekeri port. The aforesaid document would unerringly point out that the trucks which had carried the Iron ore to Belekeri port were not consisting of any forest passes or trip sheets with permit number being issued by the Department of Mines and Geology. Once again at the cost of repetition, it is clear that the materials which were brought into the Belekeri port were all illegally extracted Iron ore and once again it is to be reminded that the presumption available U/s. 80 of the Karnataka Forest Act and its corresponding Rules would justify the case of the prosecution. Another document which is furnished by M/s.SMSPL at Ex.P- 215 Spl.C. No.15/2014 169 also clarifies the total number of trucks which had brought in the Iron ore to Belekeri port from 21.02.2010 to 20.03.2010 i.e. till the date of seizure being made at Belekeri Port. All the aforesaid acts would clearly cast a serious aspersion against the manner in which the activities being carried out by M/s.SMSPL. Once again it is required to look into the lease agreement which is discussed supra, which would cast an onerous duty on the Stevedore to verify necessary materials. As per Ex.P-62, it is clarified by M/s.SMSPL that the quantity of Iron ore stocked between the date of agreement to 20.03.2010 pertaining to M/s. M/s.Ashapura Minechem was 17,546 and the quantity of Iron ore stacked between 21.03.2010 to 31.05.2010 was 27,967 MT. In other words, at the end of the season, on 31.05.2010 the stock of M/s.Ashapura Minechem if it was not stolen should be around 42,000 MT. However, as per their own list as per Ex.P-62 is that an extent of 28 MT of 216 Spl.C. No.15/2014 Iron ore was remaining as on 31.05.2010. This clearly cast a serious doubt with respect to the manner in which the exports are being carried out by M/s.SMSPL. Another supporting factor which is required to be considered is the Shipping Bills which are marked as Ex.P-53 and P-54 which would indicate about 54,766 MT of Iron ore was exported through MV Mandarin Harvest to China and as per the another shipping Invoice dated 14.05.2010 around 40,000 MT was exported to China through MV Columbia. The aforesaid aspect only indicates of purchases being made by M/s.SMSPL of the seized Iron ore belonging to M/s.Ashapura Minechem. It is relevant to note that M/s.Ashapura Minechem had not exported any Iron ore by themselves, but they had sold it to M/s.SMSPL.
101. At this juncture, it would be appropriate to appreciate the evidence of PW-34 Santhosh Menon who was the Deputy General Manager of 217 Spl.C. No.15/2014 M/s.Ashapura Minechem who in his chief- examination had stated that in the year 2010 Accused No.3 - Chethan Sha was the Managing Director and has deposed of purchasing the Iron ore as per Ex.P- 130, Ex.P-131, Ex.P-132, totally to an extent of 27,995 MT. It is his evidence that on 30.03.2010 as per Ex.P-133, they came to know that about 5,000 MT of Iron ore was seized and of late they came to know that the total extent was 17,000 MT and accordingly, they had filed writ petition before the Hon'ble High Court of Karnataka as per Ex.P-100. He has deposed that they had handed over the documents to port authorities on 30.04.2010 as per Ex.P-135 and had sold the same to M/s. SMSPL. During the course of cross examination by Accused Nos.2 and 3 Company, it was elucidated that they had sold the materials locally after obtaining the orders from the Hon'ble High Court and during the course of cross-examination by Accused Nos.4 and 5 218 Spl.C. No.15/2014 it was suggested that as per the interim order passed by the Hon'ble High Court, the Port Officer was to release 17,000 MT of Iron ore if proper documents were furnished. When the aforesaid evidence is appreciated with the evidence of PW-35 - Mr. Thakat Singh Ranawat, it indicates that a suggestion was by Accused No.2 and 3 Company that they had produced documents. However, the witness had deposed that there were discrepancies in the documents since the same were issued to M/s.SB Minerals for extracting Iron ore from Sandur and during the course of transit, it was to be pass through 7-8 Check Posts. However, the documents produced was not indicating the Iron ore being checked in any intermediary check post. This evidence is required to be appreciated with the evidence of PW-26 R.Gokula who was the Deputy Conservator of Forest. During the course of his cross examination, he has specifically deposed that he does not remember whether A2 Company had given all 219 Spl.C. No.15/2014 relevant documents and it was suggested to him that the Company had sold the Iron ore locally after obtaining the interim order. However, the witness has deposed that, even then it was required for them to obtain necessary clearance as per Section 162 of Karnataka Forest Rules, 1969. When the witness has specifically deposed about not issuing clearance, the onus is on the Accused to produce materials in this regard. The Court has also appreciated the transactions that had taken place with respect to sale of Iron ore and the amount credited to the account would clearly indicate that in fact, Ex.P-142 clearly reflects about the amount being credited to the account of Accused No.2 Company.
102.In fact, his evidence clearly corroborates with the statement which has been furnished by M/s.SMSPL at Ex.P 62. In his chief examination he has further deposed of purchasing Iron ore from various local dealers. During the course of cross- 220 Spl.C. No.15/2014 examination by Accused No.1 nothing much was elucidated from himIn fact, it was suggested to him of entering into agreement with M/s. SMSPL which was represented by Sri. Krishna Kelaskar. Apart from that, nothing was elucidated from him. The aforesaid aspect is required to be appreciated with the evidence of PW34 - Santhosh Menon who has deposed about the purchased made by A2 Company. It is his evidence that they had filed a writ petition before the Hon'ble High Court of Karnataka with respect to release of seized cargo. During the course of cross examination by Accused No.2 and 3, it is suggested that as per the interim order of the Hon'ble High Court, they had sold the Iron ore. The aforesaid aspect requires to be appreciated in the background of the writ petition which was filed before the Hon'ble High Court of Karnataka. The copy of the writ petition was marked as Ex.P-100 which indicates that W.P.No.14552/2010 was pertaining to the above case. 221 Spl.C. No.15/2014 In the aforesaid writ petition, M/s.Ashapura Minechem were the petitioners who had filed the same against DCF, Karwar and others for the release of seized Iron ore material at Belekeri port. In the aforesaid writ petition at para No.19 the grounds which has been urged indicates that the aforesaid company had disputed the seizing of 17,549 MT of Iron ore at Belekeri port which they claimed to be belonging to M/s.Ashapura Minechem. Several grounds were urged in the aforesaid writ petition and also the affidavit which is annexed to the writ petition has been verified by Mr. Vaize Ahmed who describes himself to be the Coordinator of M/s. Ashapura Minechem Ltd., At the cost of repetition, it is pertinent to note that PW34 - Mr. Santosh Menon has specifically admitted that M/s.Ashapura Minechem had appointed Mr. Vaize Ahmed as his authorised person to represent their Company. It is also relevant to note that when the Company had filed the writ 222 Spl.C. No.15/2014 petition before the Hon'ble High Court of Karnataka, wherein an interim order was granted, wherein the Respondent No.2 and 3 and the Commissioner of Customs at Mangaluru were directed not to permit the petitioners to export Iron ore on 09.07.2010, it indicates that the Hon'ble High Court had specifically directed to retain the seized Iron ore until further orders. Thereafter, on 04.05.2010 an interim order came to be passed to release the Iron ore to an extent of 17,549 MT on executing an Indemnity Bond and after satisfying/verification of documents. The suggestions which has been made by the Accused Counsel clearly indicates that though the documents were not produced to the satisfaction of the authorities, they had sold the same and in fact, the suggestions would indicate that as the forest officials had not passed any orders immediately on production of documents, they had sold the same. For the sake of arguments if the forest authorities had disobeyed 223 Spl.C. No.15/2014 the orders of the Hon'ble High Court, nothing prevented them from initiating contempt action against such an act. The act of M/s.Ashapura Minechem and M/s. SMSPL is to be construed as a wanton act.
ACT OF FILING FALSE PETITIONS/MAKING FALSE SUBMISSIONS BEFORE HON'BLE CONSTITUTIONAL COURTS.
103. It is relevant to note at this juncture that any person cannot take the process of law lightly and that too any process which is prevailing before the Hon'ble Constitutional Authorities in such a light manner. In this regard, in a very recent judgement rendered by the Hon'ble Apex Court, the unscrupulous act of the litigants in making false submissions before the superior courts has been severely condemned and condoned upon. In this regard, the Court has relied upon the judgement of the Hon'ble Apex Court reported in 2024 SCC Online 224 Spl.C. No.15/2014 SC 2599 (Bhagwan Singh Vs. State of U.P.) wherein it is held as:
29. To create or to assist creating false documents and to use them as genuine knowing them to be false in the Court proceedings, to falsely implicate somebody in the false proceedings filed in the name of the person who had no knowledge whatsoever about the same are the acts attributable to the offences punishable under the Bhartiya Nyaya Sanhita, 2023. They are also acts of frauds committed not only on the person sought to be falsely implicated and on the person in whose name such false proceedings are filed without his knowledge and consent, but is a fraud committed on the Courts. No Court can allow itself to be used as an instrument of fraud and no Court can allow its eyes to be closed to the fact that it is being used as an instrument of fraud. As held by this Court in V. Chandrasekaran v. Administrat ive Officer4 "The judicial process cannot become an instrument of oppression or abuse, or a means in the process of the court to subvert justice, for the reason that the court exercises its jurisdiction, only in furtherance of justice. The interests of justice and public interest coalesce, and therefore, they 225 Spl.C. No.15/2014 are very often one and the same. A petition or an affidavit containing a misleading and/or an inaccurate statement, only to achieve an ulterior purpose, amounts to an abuse of process of the court."
30. The matter assumes serious concern when the Advocates who are the officers of the Court are involved and when they actively participate in the ill-motivated litigations of the unscrupulous litigants, and assist them in misusing and abusing the process of law to achieve their ulterior purposes.
31. People repose immense faith in Judiciary, and the Bar being an integral part of the Justice delivery system, has been assigned a very crucial role for preserving the independence of justice and the very democratic set up of the country. The legal profession is perceived to be essentially a service oriented, noble profession and the lawyers are perceived to be very responsible officers of the court and an important adjunct of the administration of justice. In the process of overall depletion and erosion of ethical values and degradation of the professional ethics, the instances of professional misconduct are also on rise. There is a great sanctity attached to the proceedings conducted in the court. Every Advocate putting his signatures on the Vakalatnamas and on the documents to be filed in the 226 Spl.C. No.15/2014 Courts, and every Advocate appearing for a party in the courts, particularly in the Supreme Court, the highest court of the country is presumed to have filed the proceedings and put his/her appearance with all sense of responsibility and seriousness.
No professional much less legal professional, is immuned from being prosecuted for his/her criminal misdeeds.
104. In the aforesaid judgement, the Hon'ble Apex Court has come down heavily upon the acts, wherein false documents are created and using them as genuine knowing fully well that they are false documents in the Court proceedings to falsify or to implicate somebody cannot be permitted. Further, the Hon'ble Apex Court has specifically held that no Court shall allow itself to be used as an instrument of fraud and no court can allow its eyes to be closed to the fact that it is being used as an instrument of fraud. The judicial process cannot be taken as a shield to abuse the process of the Court or to subvert the justice only to ensure the ill deed of the Accused 227 Spl.C. No.15/2014 will be fulfilled. Further, the interest of justice and public interest coalesce and has to be considered oftenly as one and the same. The main reason for highlighting the aforesaid aspect is only to indicate the manner in which the fraud was being played upon before the Hon'ble High Court of Karnataka. The Accused persons namely A4 - M/s.SMSPL and A5 - Mr. S.K.Sail had insisted and prevailed upon M/s.Ashapura Minechem who have been arrayed as Accused No.2 in the above case to file writ petition before the Hon'ble High Court of Karnataka of the release of seized Iron ore. Though as per the evidence of PW-34 - Mr. Santhosh Menon, it is stated that they had sold the Iron ore on obtaining the interim order from the Hon'ble High Court, then once again a duty is casted upon them to explain why the aforesaid writ petition was dismissed subsequently as withdrawn. It is further contended the learned Counsel for Accused No.2 - M/s.Ashapura Minechem that the title of the 228 Spl.C. No.15/2014 party had already passed on to Accused No.2 Company immediately on its sale as per Section 20 of the Sale of Goods Act. In order to butters his submission, he has relied upon the judgement of the Hon'ble Apex Court reported in (2017) 8 SCC 220 (Arihant Udyog Vs. State of Rajasthan and others) wherein it is held as follows:-
19. Section 20 deals with a situation where specific goods are in a deliverable state. In that case property in goods passes to the buyer when the contract is made, even when time of payment of the price or the time of delivery of the goods or both is postponed. In order that Section 20 is attracted, two conditions have to be fulfilled: (i) the contract of sale is for specific goods which are in a deliverable state; and (ii) the contract is an unconditional contract. If these two conditions are satisfied, Section 20 becomes applicable (see Shalimar Chemical Works Ltd. [Agricultural Market Committee v. Shalimar Chemical Works Ltd., (1997) 5 SCC 516] ).
20. However, Section 21 is exception to Section 20 which states that where there is a contract for sale of specific goods and the seller is bound to do something to the goods for 229 Spl.C. No.15/2014 the purpose of putting them into a deliverable state, the property does not pass until such a thing is done and the buyer has notice thereof.
Likewise, Section 22 carves out another exception and mentions that even when the specific goods are in a deliverable state but the seller is bound to weigh, measure, test or do some other act or thing with reference to the goods for the purpose of ascertaining the price, the property does not pass until such act or thing is done and the buyer has notice thereof.
22. A conjoint reading of the aforesaid provisions makes it clear that title in goods is transferred from the seller to the buyer only on the sale of goods. As to when such a sale fructifies and the property passes is to be ascertained from the intention of the parties having regard to the terms of the contract. If no such intention can be gathered from the terms of the contract, the property in goods passes where the goods are in a deliverable state and there is unconditional contract for sale of specific goods.
105. Though in the aforesaid judgment, it has been held by the Hon'ble Apex Court that the title passes to the purchaser and the seller cannot be held liable for the acts that has taken place subsequently, 230 Spl.C. No.15/2014 in the instant case it is not established that the sale had taken place much prior to the seizure. As already discussed supra, when the parties themselves submit before the Hon'ble High Court by filing writ petition that the materials seized at Belekeri Port to an extent of 17,546 MT belongs to them, they cannot take a divergent contention subsequently by stating that they had taken the process of Court for a ride. Even if such a stand is taken, the same requires to be nipped at the bud since the act will be committing a fraud on the Society at large. The superior Courts are considered as the temple of justice, wherein crores of people pose their belief and faith cannot be easily left to be meddled by such unscrupulous acts. Under the circumstances, the contention of the learned Counsel for Accused No.4 is require to be rejected lock, stock and barrel.
106. That apart, Accused No.5 - Mr.S.K.Sail is also duty bound to explain that from where he had 231 Spl.C. No.15/2014 obtained 44,500 MT of Iron ore which was exported during the period 21.03.2010 to 31.05.2010 as per the documents furnished in the charge sheet. Admittedly, they have furnished necessary documents at Ex.P-62 which would indicate of the total exports being made during the relevant point of time. At this juncture, it would not be out of place to note the factual position of law as indicated U/s.106 of Indian Evidence Act wherein a duty is cast upon the party to explain the facts and circumstances which are within his special knowledge. In this regard, the Court has relied upon the judgment of the Hon'ble Apex Court reported in 2023 SCC OnLine SC 1261(Balvir Singh Vs. State of Uttarkhand) wherein it has been held as follows:
PRINCIPLES OF LAW GOVERNING THE APPLICABILITY OF SECTION 106 OF THE EVIDENCE ACT
33. Section 106 of the Evidence Act, states as under:232 Spl.C. No.15/2014
"106. Burden of proving fact especially within knowledge.-- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
Illustration
(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.
(b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him."
34. Section 106 of the Evidence Act referred to above provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. The word "especially" means facts that are pre- eminently or exceptionally within the knowledge of the accused. The ordinary rule that applies to the criminal trials that the onus lies on the prosecution to prove the guilt of the accused is not in any way modified by the rule of facts embodied in Section 106 of the Evidence Act. Section 106 of the Evidence Act is 233 Spl.C. No.15/2014 an exception to Section 101 of the Evidence Act. Section 101 with its illustration (a) lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible or at any rate disproportionately difficult for the prosecution to establish the facts which are, "especially within the knowledge of the accused and which, he can prove without difficulty or inconvenience".
35. In Shambhu Nath Mehra v.
The State of Ajmer, AIR 1956 SC 404, this Court while considering the word "especially" employed in Section 106 of the Evidence Act speaking through Vivian Bose, J., observed as under:
"11. ... The word "especially"
stresses that. It means facts that are pre-eminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit 234 Spl.C. No.15/2014 the murder because who could know better than he whether he did or did not.
It is evident that that cannot be the intention & the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the burden lies on an accused person to show that he did not commit the crime for which he is tried. These cases are Attygalle v. The King, AIR 1936 PC 169 (AIR V 23) (A) and Seneviratne v. R, [1936] 3 All ER 36 at p. 49 (B)."
36. The aforesaid decision of Shambhu Nath (supra) has been referred to and relied upon in Nagendra Sah v. State of Bihar, (2021) 10 SCC 725, wherein this Court observed as under:
"22. Thus, Section 106 of the Evidence Act will apply to those cases where the prosecution has succeeded in establishing the facts from which a reasonable inference can be drawn regarding the existence of certain other facts which are within the special knowledge of the accused.
When the accused fails to offer
proper explanation about the
235 Spl.C. No.15/2014
existence of said other facts, the court can always draw an appropriate inference.
23. When a case is resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of burden placed on him by virtue of Section 106 of the Evidence Act, such a failure may provide an additional link to the chain of circumstances. In a case governed by circumstantial evidence, if the chain of circumstances which is required to be established by the prosecution is not established, the failure of the accused to discharge the burden under Section 106 of the Evidence Act is not relevant at all. When the chain is not complete, falsity of the defence is no ground to convict the accused."
(Emphasis supplied)
37. In Tulshiram Sahadu Suryawanshi v. State of Maharashtra, (2012) 10 SCC 373, this Court observed as under:
"23. It is settled law that presumption of fact is a rule in law 236 Spl.C. No.15/2014 of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above position is strengthened in view of Section 114 of the Evidence Act, 1872. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process, the courts shall have regard to the common course of natural events, human conduct, etc. in addition to the facts of the case. In these circumstances, the principles embodied in Section 106 of the Evidence Act can also be utilised. We make it clear that this section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but it would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his 237 Spl.C. No.15/2014 special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference. It is useful to quote the following observation in State of W.B. v. Mir Mohammad Omar [(2000) 8 SCC 382 : 2000 SCC (Cri) 1516] : (SCC p. 393, para 38)
"38. Vivian Bose, J., had observed that Section 106 of the Evidence Act is designed to meet certain exceptional cases in which it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused. In Shambu Nath Mehra v. State of Ajmer [AIR 1956 SC 404 : 1956 Cri LJ 794] the learned Judge has stated the legal principle thus : (AIR p. 406, para 11) '11. This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult for the 238 Spl.C. No.15/2014 prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience.
The word "especially" stresses that. It means facts that are pre- eminently or exceptionally within his knowledge.'"
(Emphasis supplied)
38. In Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681, this Court was considering a similar case of homicidal death in the confines of the house. The following observations are considered relevant in the facts of the present case:
"14. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the courts. A Judge does not preside over a 239 Spl.C. No.15/2014 criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecutions [[1944] A.C. 315 : [1944] 2 All ER 13 (HL)] -- quoted with approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh [(2003) 11 SCC 271 : 2004 SCC (Cri) 135].) The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads:
"(b) A is charged with travelling on a railway without ticket. The 240 Spl.C. No.15/2014 burden of proving that he had a ticket is on him."
15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation.
Xxxxxxxxx
22. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in 241 Spl.C. No.15/2014 leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. ..."
(Emphasis supplied)
39. The question of burden of proof, where some facts are within the personal knowledge of the accused, was examined by this Court in the case of State of W.B. v. Mir Mohammad Omar, (2000) 8 SCC 382. In this case, the assailants forcibly dragged the deceased from the house where he was taking shelter on account of the fear of the accused, and took him away at about 2 :
30 in the night. The next day in the morning, his mangled body was found lying in the hospital. The trial court convicted the accused under Section 364, read with Section 34 of the IPC, and sentenced them to ten years rigorous 242 Spl.C. No.15/2014 imprisonment. The accused preferred an appeal against their conviction before the High Court and the State also filed an appeal challenging the acquittal of the accused for the charge of murder.
The accused had not given any explanation as to what happened to the deceased after he was abducted by them.
The Sessions Judge, after referring to the law on circumstantial evidence, had observed that there was a missing link in the chain of evidence after the deceased was last seen together with the accused persons, and the discovery of the dead body in the hospital, and concluded that the prosecution had failed to establish the charge of murder against the accused persons beyond any reasonable doubt. This Court took note of the provisions of Section 106 of the Evidence Act, and laid down the following principles in paras 31 to 34 of the report:
"31. The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien 243 Spl.C. No.15/2014 to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would be the major beneficiaries and the society would be the casualty.
32. In this case, when the prosecution succeeded in establishing the afore-narrated circumstances, the court has to presume the existence of certain facts. Presumption is a course recognised by the law for the court to rely on in conditions such as this.
33. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above principle has 244 Spl.C. No.15/2014 gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process the court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case.
34. When it is proved to the satisfaction of the Court that Mahesh was abducted by the accused and they took him out of that area, the accused alone knew what happened to him until he was with them. If he was found murdered within a short time after the abduction the permitted reasoning process would enable the Court to draw the presumption that the accused have murdered him. Such inference can be disrupted if the accused would tell the Court what else happened to Mahesh at least until he was in their custody."
(Emphasis supplied) 245 Spl.C. No.15/2014
107. The Hon'ble Apex Court while explaining the requirements under Sec.106 of Indian Evidence Act has held that under certain circumstances the Pristine Rule of proving beyond reasonable doubt on the prosecution can be deviated at certain time. And the said rule is required to be fossilized to ascertain whether such a burden can be imposed upon the accused. In the instant case, the aforesaid fact was within the knowledge of accused person and the said burden cannot be castigated upon the prosecution. In the above case, the accused has not explained such circumstances, which was within his knowledge and the same can be taken as circumstances which would fortify the case of prosecution.
108. The only inference which can be drawn from the aforesaid acts of Accused No.2, M/s.Ashapura Minechem and Accused No.3, M/s.SMSPL is that they had meddled with the heaps of Iron ore which were seized by the forest authorities 246 Spl.C. No.15/2014 as per their Mahazar dated Ex.P-9 and Ex.P-10 on 26.03.2010 and 29.03.2010 and even the letter addressed by PW10 - Anand as per Ex.P-18 and Ex.P- 19 are fully justified and proved by the prosecution. The only unerring inference which can be drawn from the aforesaid aspect is that the Accused No.2 Company had sold the seized extent of 17,546 MT of Iron ore in favour of A4 - M/s. SMSPL, who had exported the same through the Vessel - MV Columbia and MV Manderine Harvest along with other Iron ore which they had purchased. The document which had been furnished would clearly indicate that the Accused No.4 company had not purchased any materials to an extent of 17,546 MT from any other companies. Hence, the prosecution has clearly established that Accused persons i.e. A2 - M/s.Ashapura Minechem and A4 - M/s.SMSPL with the directions of its M.D., A5 - Mr. S.K.Sail had stolen the Iron ore which was handed over to the custody of 247 Spl.C. No.15/2014 A1 - Mahesh J. Bileye and accordingly, they have committed an offence punishable U/s. 379 IPC and also the materials clearly indicates that had committed an offence punishable U/s. 420 IPC.
109. The learned Counsel for Accused has vehemently argued that the provision of Section 420 IPC is not at all applicable to the facts and circumstances of the above case. It is their contention that in order to attract the rigors of Section 420 IPC, there should be an element of cheating, wherein a person dishonestly induces the person deceived to deliver the property to any person or to make other to destroy the whole or any part of the valuable security.
110.I have also bestowed my anxious reading to the authorities relied upon by the learned Senior counsel Sri Murthy D Nayak who in his all fairness as usual has submitted that the basic ingredients of section 420 of IPC itself is not established by the prosecution. In order to butters his submission he 248 Spl.C. No.15/2014 has relied upon the judgment of the Hon'ble Apex court reported in (2022)7 SCC 124 (Vijay Kumar Ghai Vs. State of West Bengal) wherein it is held as:
32. A fraudulent or dishonest inducement is an essential in-
gredient of the offence. A per-
son who dishonestly induces an-
other person to deliver any property is liable for the offence of cheating.
33. Section 420IPC defines "cheating and dishonestly in-
ducing delivery of property"
which reads as under:
"420. Cheating and dishonestly inducing delivery of property.-- Whoever cheats and thereby dis- honestly induces the person de- ceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being con- verted into a valuable security, shall be punished with impris- onment of either description for a term which may extend to seven years, and shall also be liable to fine."249 Spl.C. No.15/2014
34. Section 420IPC is a serious form of cheating that includes inducement (to lead or move someone to happen) in terms of delivery of property as well as valuable securities. This section is also applicable to matters where the destruction of the property is caused by the way of cheating or inducement. Pun- ishment for cheating is pro-
vided under this section which may extend to 7 years and also makes the person liable to fine.
35. To establish the offence of cheating in inducing the deliv-
ery of property, the following in- gredients need to be proved:
(i) The representation made by the person was false.
(ii) The accused had prior knowledge that the representa-
tion he made was false.
(iii) The accused made false rep- resentation with dishonest in-
tention in order to deceive the person to whom it was made.
(iv) The act where the accused induced the person to deliver the property or to perform or to 250 Spl.C. No.15/2014 abstain from any act which the person would have not done or had otherwise committed.
111. The learned Senior Counsel has also relied upon the judgment of the Hon'ble Apex court reported in (2023)3 SCC 423 ( Deepak Gaba V State of U P) wherein it has been held as
18. In order to apply Section 420IPC, namely, cheating and dishonestly inducing delivery of property, the ingredients of Sec- tion 415IPC have to be satisfied. To constitute an offence of cheating under Section 415IPC, a person should be induced, ei-
ther fraudulently or dishon-
estly, to deliver any property to any person, or consent that any person shall retain any prop-
erty. The second class of acts set forth in the section is the in- tentional inducement of doing or omitting to do anything which the person deceived would not do or omit to do, if she were not so deceived. Thus, the sine qua non of Section 415IPC is "fraudulence", "dis-
honesty", or "intentional in-
ducement", and the absence of these elements would debase the offence of cheating. [Iridium India Telecom Ltd. v. Motorola 251 Spl.C. No.15/2014 Inc., (2011) 1 SCC 74 : (2010) 3 SCC (Cri) 1201]
19. Explaining the contours, this Court in Mohd.
Ibrahim v. State of Bihar [Mohd.
Ibrahim v. State of Bihar, (2009) 8 SCC 751 : (2009) 3 SCC (Cri)
929. This Court, in this case, has cautioned that the ratio should not be misunderstood, to record the clarification, which in the present case, in our opin-
ion, is not of any avail and help to Respondent 2 complainant.
We respectfully concur with the clarification as well as the ra-
tio explaining Sections 415, 464, etc. IPC.] , observed that for the offence of cheating, there should not only be cheat-
ing, but as a consequence of such cheating, the accused should also have dishonestly adduced the person deceived to deliver any property to a per-
son; or to make, alter, or de-
stroy, wholly or in part, a valu-
able security, or anything signed or sealed and which is capable of being converted into a valuable security.
112. The juxtaposition of the aforesaid dictum can be summarized in short as follows:-
a) Deception of any person 252 Spl.C. No.15/2014
b) Fraudulently or dishonestly inducing any person to deliver any property
c) To consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit.
113.If the aforesaid ingredients are applied to the case on hand, firstly the prosecution is required to prove that there was an fraudulent intention at the inception of the case. Time and again it has been held by the Hon'ble Apex Court that, an intention to cheat and defraud should be in existence right from the beginning. In order to better appreciate the same, once again, at the cost of repetition, the evidence requires to be revisited. The provision of Sec.420 would clearly stipulate that mere misrepresentation of the fact would not be sufficient and it is a sine-qua- non that accused who entertained the mala-fide intention from the beginning itself. Further, the Hon'ble Apex Court in another occasion has held that, in order to prove the dishonest intention, it would be possible always to insist upon direct evidence. 253 Spl.C. No.15/2014 However, reasonable inferences can be drawn from the circumstances which are prevailing. In this regard, the judgment of the Hon'ble Apex Court, reported in (2005) 9 SCC 15 (Devender Kumar Singla Vs. Baldev Krishan Singla) wherein it is held by the Hon'ble Apex court as follows:
8. As was observed by this Court in Shivanarayan Kabra v. State of Madras [AIR 1967 SC 986 :
1967 Cri LJ 946] it is not neces- sary that a false pretence should be made in express words by the accused. It may be inferred from all the circum- stances including the conduct of the accused in obtaining the property. In the true nature of things, it is not always possible to prove dishonest intention by any direct evidence. It can be proved by a number of circum-
stances from which a reason-
able inference can be drawn.
9. On the proved facts it is seen that a cheque was handed over to the complainant and in the receipt it was stated that the shares have been received. The High Court has referred to this factual position and drawn a 254 Spl.C. No.15/2014 conclusion that the receipt (Ext.
PW 3/B) which was admittedly executed by accused Devender clearly states that the shares had been transferred. The mere fact that the cheque was filled in by the complainant is not sufficient to take away the ef-
fect of the statement in the re-
ceipt. The plea that it was an advance receipt does not ap-
pear to have been even agitated before the courts below.
10. Significantly, there was no suggestion to the complainant (PW 3) that the shares had not been delivered.
114. The aforesaid judgment clearly lays down the criteria that in order to attract the rigors of Section 420 IPC, there must be an element of cheating and defrauding which had commenced right from the inception. Once again when the materials are re-visited, it would clearly indicate that Accused No.4 - M/s.SMSPL being represented by A5 - Mr. S.K.Sail and M/s.Ashapura Minechem were fully aware of the seizure that had taken place on 20.03.2010. Even for the sake of arguments if it is to 255 Spl.C. No.15/2014 be presumed that the alleged seizure were not in accordance with law, nothing prevented them from knocking the doors of the Hon'ble Court wherein they themselves had approached and in fact, they had misguided the Court by making submission that still the seized materials lies at Belekeri port and without obtaining necessary permission from forest authorities, they had sold the same. The act of committing fraud and cheating could be readily ascertained from the conduct of the parties. Even otherwise, the Port Conservator at that point of time, Mr. Mahesh J. Bileye was fully aware of the seizure that had taken place at Belekeri port. It is pertinent to note that on 07.08.2010 in the presence of the DMJ officials and also the Stevedores another Mahazar was drawn which would indicate that only 2,00,000 MT of Iron ore was available at the Port and the remaining extent was exported. The learned Counsel for Accused No.4 and 5 have not seriously 256 Spl.C. No.15/2014 disputed about the presence of their representatives at the time of drawing the Mahazar as per Ex.P11. All the aforesaid acts would only indicate of a situation that the Accused persons had indeed joined together and conspired to cheat and defraud the Government, wherein Accused No.1 - Mahesh G. Bileye who was entrusted with the seized materials had permitted the other Accused persons to meddle with the same and in fact, he had permitted them to export the seized materials.
115. At this juncture, it would be appropriate to consider what exactly amounts to an act which would be brought within the purview of Section 409 IPC. The provision of Section 409 clearly indicates that there must be a entrustment of property to a public servant in the normal course of business and the said public servant in the way of his business should commit criminal breach of trust. What amounts to criminal breach of trust has been succinctly explained 257 Spl.C. No.15/2014 U/s. 405 IPC wherein it states that when a person is entrusted with a property or within his dominion, dishonestly misappropriates or converts to his own use that property or dishonestly uses or disposes that property in violation of any direction of law prescribing the mode in which such trust is to be discharged commits breach of trust. In other words, what could be construed for attracting the provision of Section 409 of IPC could be culled out as follows:-
a) Person entrusted with property should be a public servant
b) He should be entrusted with property
c) The property should be entrusted in the way of his business
d) The public servant commits breach of trust
116. When the aforesaid aspect is appreciated to the case on hand, it indicates that Mahesh J. Bileye was a public servant at the time of entrusting the property to him on 20.03.2010 and also 258 Spl.C. No.15/2014 communicating to him on 24.03.2010. Though it is vehemently argued that he could not have been entrusted with the property for the reason that he was arrayed as Accused in FOC 17/2009-10, the same does not seems to be correct position of law. In fact, it is the settled position of law that the property can be entrusted after drawing the Mahazar to any respectable member of the locality.
117.In fact, it is the settled position of law that the property can be entrusted after drawing the Mahazar to any respectable member of the locality. In this regard, it would be appropriate to rely upon the Karnataka Forest Manual wherein the procedure has been narrated with respect to drawing of mahazar. The drawing of mahazar is stated as follows: -
68. Drawing up of a Mahazar- (1) Immediately the commission of forest offences detected by any Forest or Police Officers, he shall cause a panchanama or mahazar to be drawn in the presence of such 259 Spl.C. No.15/2014 persons, as are available at or near the scene of the offence. If no such person other than Forest Officers are available, at or near the scene of the offence, the panchanama or mahazar can be drawn in their presence itself. If the knowledge of an offence is obtained from the report of an informer any Forest Officer may be informed, shall either himself proceed at once to the place or depute any of the sub-ordinate to take similar action."
118. The aforesaid aspect would clearly stipulate the conditions which is required to be followed and even otherwise if it is considered that the procedure adopted was an irregular one, the question which is to be looked into is whether the same vitiates the proceedings. In this regard, I have relied upon the authoritative judgment of the Hon'ble Apex Court reported in (2024) 7 SCC 23 (Shento Varghese Vs. Julfikar Hussen and others) wherein it is held as follows: -
260 Spl.C. No.15/2014
20. It is now too well settled that delay in registration of FIR is no ground for quashing of the FIR itself. [Ravinder Kumar v. State of Punjab, (2001) 7 SCC 690: 2001 SCC (Cri) 1384] It follows as a corollary that if delay in registration of FIR is no ground to quash the FIR, then delay in forwarding such FIR to the Magistrate can also afford no ground for nullification of the FIR.
In fact, this Court has gone to the extent of holding that unless serious prejudice is demonstrated to have been suffered as against the accused, mere delay in sending the FIR to the Magistrate by itself will not have any deteriorating effect on the case of the prosecution. [Ravinder Kumar v. State of Punjab, (2001) 7 SCC 690:
2001 SCC (Cri) 1384] If prejudice is demonstrated and the prosecution fails to explain the delay, then, at best, the effect of such delay would only be to render the date and time of lodging the FIR suspect and nothing more. [Bhajan Singh v. State of Haryana, (2011) 7 SCC 421: (2011) 3 SCC (Cri) 241: 2011 INSC 422] Drawing from this analogy, the delay in reporting the seizure to the Magistrate may, subject to proof of prejudice, at best, dent the veracity of the 261 Spl.C. No.15/2014 prosecution case vis-à-vis the date, time and occasion for seizure of the property. Since the proof of prejudice on the part of the accused and the explanation for delay on the part of the prosecution can only be demonstrated at trial, the effect of non-compliance becomes an issue to be adjudicated at the time of appreciation of evidence. Moreover, this Court has consistently held that even illegalities in the investigation (including illegality in search and seizures) is no ground for setting aside the investigation in toto [H.N. Rishbud & Inder Singh v. State (Delhi Admn.), (1954) 2 SCC 934] .
21. In the background of the aforesaid discussion, therefore, the line of precedents which have taken the position that "seizure orders" are vitiated for delay in compliance with the reporting obligation are declared to be manifestly erroneous and are accordingly, overruled. The relevant question to be determined was not whether the duty of the police to report the seizure to the Magistrate is mandatory or directory. Instead, what ought to have been inquired into was whether the exercise of the seizure 262 Spl.C. No.15/2014 power was subjected to compliance of reporting obligation, as illustrated in Section 105-EcrPC.
23. The meaning of the word "forthwith" as used in Section 102(3) has not received judicial construction by this Court.
However, this Court has examined the scope and contours of this expression as it was used under the Maintenance of Internal Security Act, 1971; the Preventive Detention Act, 1950; Section 157(1)CrPC; and the Gujarat Prevention of Anti-Social Activities Act, 1985 in Sk. Salim v. State of W.B. [Sk. Salim v. State of W.B., (1975) 1 SCC 653, paras 10 & 11 :
1975 SCC (Cri) 290] , Alla China Apparao v. State of A.P. [Alla China Apparao v. State of A.P., (2002) 8 SCC 440, para 9 : 2003 SCC (Cri) 87] and Navalshankar Ishwarlal Dave v. State of Gujarat [Navalshankar Ishwarlal Dave v. State of Gujarat, 1993 Supp (3) SCC 754, para 9 : 1993 SCC (Cri) 1126] .
24. This Court, in Rao Mahmood Ahmad Khan v. Ranbir Singh [Rao Mahmood Ahmad Khan v. Ranbir Singh, 1995 Supp (4) SCC 275] , has held that the word 263 Spl.C. No.15/2014 "forthwith" is synonymous with the word "immediately", which means with all reasonable quickness.
When a statute requires something to be done "forthwith" or "immediately" or even "instantly", it should probably be understood as allowing a reasonable time for doing it [Bidya Deb Barma v. DM, Tripura, 1968 SCC OnLine SC 82] .
25. The expression "forthwith"
has been defined in Black's Law Dictionary, 10th Edn., as under:
"Forthwith, adv. (14c) 1. Immediately; without delay. 2.
Directly; promptly; within a reasonable time under the
circumstances; with all convenient dispatch."
Wharton's Law Lexicon, 17th Edn. describes "forthwith" as extracted:
Forthwith, when a defendant is ordered to plead forthwith, he must plead within twenty-four hours. When a statute or rule of Court requires an act to be done "forthwith", it means that the act is to be done within a reasonable time having regard to the object of 264 Spl.C. No.15/2014 the provision and the circumstances of the case [Southam, In re, ex p Lamb [Southam, In re, ex p Lamb, (1881) 19 Ch D 169: 2 Chit Arch Prac, 14th Edn.] ].
26. From the discussion made above, it would emerge that the expression "forthwith" means "as soon as may be", "with reasonable speed and expedition", "with a sense of urgency", and "without any unnecessary delay". In other words, it would mean as soon as possible, judged in the context of the object sought to be achieved or accomplished.
27. We are of the considered view that the said expression must receive a reasonable construction and in giving such construction, regard must be had to the nature of the act or thing to be performed and the prevailing circumstances of the case. When it is not the mandate of the law that the act should be done within a fixed time, it would mean that the act must be done within a reasonable time. It all depends upon the circumstances that may unfold in a given case and there cannot be a straitjacket formula prescribed in 265 Spl.C. No.15/2014 this regard. In that sense, the interpretation of the word "forthwith" would depend upon the terrain in which it travels and would take its colour depending upon the prevailing circumstances which can be variable.
28. Therefore, in deciding whether the police officer has properly discharged his obligation under Section 102(3) CrPC, the Magistrate would have to, firstly, examine whether the seizure was reported forthwith. In doing so, it ought to have regard to the interpretation of the expression, "forthwith" as discussed above. If it finds that the report was not sent forthwith, then it must examine whether there is any explanation offered in support of the delay. If the Magistrate finds that the delay has been properly explained, it would leave the matter at that. However, if it finds that there is no reasonable explanation for the delay or that the official has acted with deliberate disregard/wanton negligence, then it may direct for appropriate departmental action to be initiated against such erring official. We once again reiterate that the act of seizure would not 266 Spl.C. No.15/2014 get vitiated by virtue of such delay, as discussed in detail hereinabove.
119. In the aforesaid judgment it has been specifically held by the Hon'ble Apex Court that mere irregularity will not vitiate the entire proceedings.
120.The Court has also considered the provision of Section 409 IPC to ascertain whether disposal of property in violation of direction of law would amount to committing the offence. In the instant case, it is to be considered that Accused No.1 was entrusted with the property and thereafter, he had kept quite and ensured that the officials of A4 - M/s.SMSPL had meddled with the same and later on he had permitted them to get it exported. At the cost of repetition, the letter dated 12.03.2010 addressed by the Director of Port and Inland Water Department clearly stipulates and casts a specific duty on the Port Conservator to check and verify the documents pertaining to the materials which is required to be exported. At the cost of repetition, the Port Conservator though has 267 Spl.C. No.15/2014 made an attempt to shrug off from his responsibilities, had corresponded with the Stevedores and also the forest authorities at the inception to furnish and provide necessary details of the extent of seizure being made by them. If at all he was not entrusted with the domain over the property, then there was no necessity for him to seek clarifications from any such persons. Even otherwise, if the submission of the learned Counsel for Accused No.1 is to be accepted that the Port Conservator is only duty bound to collect the wharfage, anchorage charges, then on what premises he had corresponded with them. The Court also placed its reliance on the proceedings which was carried out by the Government of Karnataka as per Ex.P-25(A) on 13.04.2010. In the said meeting, it was resolved that necessary directions should be given to verify the goods entering the Belekeri port. Even otherwise, the communication of the letter at Ex.P-25 would clearly 268 Spl.C. No.15/2014 indicate that a positive duty was entrusted upon the Accused No.1. Further, the letter correspondences addressed by the Port Conservator to the Assistant Conservator of Forest, Ankola and later on correspondences at Ex.P-18 and subsequent correspondences made by him calling upon the Stevedores to furnish the exact extent of Iron ores stored and seized would indicate that he was entrusted with certain duties. In this regard, the Court has relied upon the judgment of the Hon'ble Apex Court reported in (2009) 8 SCC 1 (Sudhir Shanthilal Mehta Vs. CBI) wherein it is held as
100. Even if the words "directions of law" are to be given literal meaning, it would include a direction issued by the authorities in exercise of their statutory power as also the power of supervision. We have opined heretobefore that it has been accepted at the Bar that both the RBI circulars as also the Manual of UCO Bank were binding on the authorities.
269 Spl.C. No.15/2014
121.Further, the Court has also relied upon the judgement of the Hon'ble Apex Court reported in (2004) 13 SCC 217 (N.Bhargavan Pillai Vs. State of Kerala) wherein it has been held as
13. It is fairly well-settled position in law that actual mode of entrustment or misappropriation is not to be proved by the prosecution. Once entrustment is proved, it is for the accused to prove as to how the property entrusted was dealt with. In Jiwan Dass case [(1999) 2 SCC 530 : 1999 SCC (Cri) 288] the factual position was entirely different. It was held that the undertaking given in that case could not be held to be confession or admission. In the present case, the factual scenario as noticed by the trial court and the High Court is different. It was not only on the basis of the undertaking that the conviction was recorded, but the other evidence on record also unerringly proved entrustment. Therefore, it was for the accused 270 Spl.C. No.15/2014 to prove as to how the property entrusted with him was dealt with. No material was placed in that regard. Therefore, the courts below correctly held entrustment to have been proved. The concurrent findings of fact recorded by the courts below relating to entrustment and misappropriation in our view are well merited and fully justified on the basis of evidence on record and do not suffer from any perversity or patent error of law to warrant interference.
122. The aforesaid case aptly applies to the above case and at the cost of repetition, it is pertinent to note that the prosecution has proved the entrustment of the property and as such it would be the burden of the accused to explain that entrustment would not be applicable to him. Under the circumstances, the prosecution has established their case beyond reasonable doubt as against Accused No.1 - Mahesh J. Beleya that he had committed an offence punishable U/s. 409 read with Section 120B 271 Spl.C. No.15/2014 IPC. Further, with respect to the allegation of committing an offence U/s. 13(2) and U/s. 13(1)(c) and 13(1)(d) of Prevention of Corruption Act, 1988.
123.Now with respect to the allegations of Sec.13(2) r/w 13 (1)(c)and (d) of Prevention of Corruption Act 1988, the main allegation as noticed above is leveled against accused No.1 that he being the public servant had committed a criminal mis- conduct as he had dishonestly and fraudulently misappropriated or otherwise conferred the property entrusted to him by allowing the other person to do meddle with the same and as per Sec. 13(d) the relevant portion which is applicable is extracted for the sake of convenience which reads as Sec.13 (1)(d)
(ii) and (iii).
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage ; or 272 Spl.C. No.15/2014
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advan-
tage without any public in-
terest;
124. As could be noticed, the Accused No.1 was a public servant as on the date of seizure and further, he had permitted Accused No.2 to 5 to meddle with the seized property, due to which they were able to export the same and under the circumstances, the provision of the Prevention of Corruption Act is aptly applicable. I have also carefully appreciated that whether the act of the Accused No.1 can be construed as a misconduct.
125. What amounts to misconduct has been explained in the judgment rendered by the Hon'ble Apex Court reported in (2009)8 SCC 617 (State of M.P. v. Sheetla Sahai) wherein it is held as:
46. In Inspector Prem Chand v. Govt. of NCT of Delhi [(2007) 4 SCC 566 :
(2007) 2 SCC (L&S) 58 :
2007 AIR SCW 2532] this 273 Spl.C. No.15/2014 Court observed: (SCC pp.
570-71, paras 10-11) "10. In State of Pun-
jab v. Ram Singh [(1992) 4 SCC 54 : 1992 SCC (L&S) 793 : (1992) 21 ATC 435] it was stated: (SCC pp. 57-58, para 5) '5. Misconduct has been de-
fined in Black's Law Dictio-
nary, 6th Edn., at p. 999, thus:
"Misconduct.--A transgres- sion of some established and definite rule of action, a forbidden act, a derelic- tion from duty, unlawful be- havior, willful in character, improper or wrong behavior; its synonyms are misde-
meanor, misdeed, misbehav- ior, delinquency, impropri- ety, mismanagement, of-
fense, but not negligence or carelessness."
Misconduct in office has been defined as:
"Misconduct in office.--Any unlawful behavior by a pub- lic officer in relation to the 274 Spl.C. No.15/2014 duties of his office, willful in character. Term em-
braces acts which the office holder had no right to per- form, acts performed im-
properly, and failure to act in the face of an affirmative duty to act." '
11. In P. Ramanatha Aiyar's Law Lexicon, 3rd Edn., at p. 3027, the term 'misconduct' has been defined as under:
'Misconduct.--The term "misconduct" implies a wrongful intention, and not a mere error of judgment.
*** Misconduct is not necessar- ily the same thing as con-
duct involving moral turpi- tude.
The word "misconduct" is a relative term, and has to be construed with reference to the subject-matter and the context wherein the term oc- curs, having regard to the scope of the Act or statute which is being, construed. "Misconduct" literally means wrong conduct or im- proper conduct.' 275 Spl.C. No.15/2014 (See also Bharat Petroleum Corpn. Ltd. v. T.K. Raju [(2006) 3 SCC 143 :
2006 SCC (L&S) 480] .)"
47. Even under the Act, an offence cannot be said to have been committed only because the public servant has obtained either for him- self or for any other person any pecuniary advantage. He must do so by abusing his position as a public ser- vant or holding office as a public servant. In the latter category of cases, absence of any public interest is a sine qua non. The materials brought on record do not suggest in any manner whatsoever that Respon-
dents 1 to 7 either had abused their position or had obtained pecuniary advan- tage for Respondents 8, 9 and 10, which was without any public interest.
126. As per the said dictum the misconduct can be construed as not a mere error in judgment but an intentional act. The act of the Accused No.1 cannot be construed as a minor misnomer which would be construed as a misconduct. But indeed it is 276 Spl.C. No.15/2014 an act which has to be considered as the one which would attract the rigors of Section 13(2) read with Section 13(1)(c) and Section 13(1)(d) of Prevention of Corruption Act which the prosecution have successfully established.
127. That apart, the Court has also considered the submissions made by the learned Counsel for Accused with respect to registration of the F.I.R. It has been vehemently argued by the learned Counsel for Accused that no separate FIRs can be registered with respect to very same offence. It is their contention that as per the kind directions of the Hon'ble Apex Court, the case for investigation came to be entrusted to the CBI authorities. It has been argued that the Hon'ble Apex Court had directed the CBI to investigate with respect to illegal extraction, transportation and export Iron ore across the State of Karnataka. In the instant case, it is contended that the Iron ore which was dumped at Belekeri port was 277 Spl.C. No.15/2014 illegally exported. However, in order to justify the same, it has been submitted that the CBI had registered different FIRs commencing from RC 15(A)/2013 to RC 17(A)/2013. By pointing out the same, it has been argued that length that for offences which would construe as a single consequential one, a single FIR is to be registered. However, by registering the FIRs separately, the prosecution has caused grave injustice to the parties. In order to clarify the aforesaid aspect, the learned prosecutor has relied upon the judgment of the Hon'ble Apex Court reported in (2009) 1 SCC 441 (Nirmal Singh Kahlon Vs. State of Punjab) wherein it has been held as follows:-
44. The second FIR lodged by the Central Bureau of Investiga-
tion (CBI), however, was on a wider canvass. It was lodged af-
ter holding a detailed prelimi-
nary inquiry. CBI collected a large number of materials. It had also recorded the state-
ments of a large number of per-
sons. Whereas the first FIR 278 Spl.C. No.15/2014 dated 14-6-2002, thus, con-
tained the misdeeds of individu- als, the second one depicts a crime committed in the course of the selection process of pan-
chayat secretaries involving a large number of officers.
46. The second FIR dated 26-6- 2003 enumerates as many as fifteen categories of irregulari- ties committed by various per-
sons involved in the said selec-
tion process. Responsibility has not only been fixed upon the ap-
pellant but also upon Shri Man-
deep Singh, Shri C.L. Premmy, Shri J.S. Kesar, Shri Joginder Singh as also the then Addi-
tional Deputy Commissioners of Bhatinda, Ropar and Muktsar.
The number of accused who were involved as per prelimi-
nary report of CBI were as many as fourteen.
47. The first FIR pointed out of-
fences under Sections 420, 467, 468, 120-B of the Penal Code and Sections 13(1)(d), (e) and 13(2) of the Prevention of Cor-
ruption Act but no allegation of conspiracy was made. In the second FIR dated 26-6-2003, the persons involved were not only the then Minister but also the then Director, the then Division 279 Spl.C. No.15/2014 Deputy Director, the then Deputy Directors, the then Addi- tional Deputy Commissioners, the then Block Development Of-
ficers, etc.
48. It is in the aforementioned factual backdrop, the order of the High Court dated 31-10- 2002 assumes significance. By reason of the said order, the State Government was given two options viz.:
(i) to make further investigation by removing all those names in the report from their respective offices so as to ensure that fur-
ther inquiry was not influenced by any of those officers; or
(ii) to order a CBI probe into the entire scandal involving the ap- pointment of panchayat secre-
taries.
49. It is in the aforementioned situation the State Government had taken a decision to hand over the investigation of the scandal involving selection of panchayat secretaries to CBI.
50. An offence committed by an individual or two and an of-
280 Spl.C. No.15/2014fence disclosed in a scandal in-
volving a large number of offi-
cers from the lowest category to the highest category is distinct and different. In the first FIR although the provision of Sec-
tion 120-B of the Penal Code was mentioned, no allegation of conspiracy had been made. As indicated hereinbefore, it cen- tered round a large number of acts of omissions and commis-
sions on the part of the appel-
lant Kahlon alone, as would be evident from the following:
"... By misusing his powers, he has made wrong appointments for his benefit and the deserv- ing candidates were overlooked. By doing this ex-Rural Develop- ment and Panchayats Minister has committed crime under Sec- tions 420, 467, 468, 120-B IPC and Sections 13(1)(d), (e) read with Section 13(2) of the Preven- tion of Corruption Act...."
51. In the aforementioned cir-
cumstances, the decision of this Court in Ram Lal Narang v. State (Delhi Admn.) [(1979) 2 SCC 322 : 1979 SCC (Cri) 479] assumes signifi-
cance. This Court therein was concerned with two FIRs; both lodged by the Central Bureau of 281 Spl.C. No.15/2014 Investigation. The first one con- tained allegations against two persons viz. Malik and Mehra under Section 120-B of the Pe-
nal Code read with Sections 406 and 420 IPC thereof wherein CBI filed a charge-
sheet. Later on, however, some subsequent events emerged re-
sulting in lodging the FIR not only against Malik and Mehra but also against Narang and his two brothers. This Court opined:
(SCC pp. 331-32, paras 11-12) "11. ... The offences alleged in the first case were Section 120-
B read with Section 420 and Section 406 IPC, while the of-
fences alleged in the second case were Section 120-B read with Section 411 IPC and Sec-
tion 25 of the Antiquities and Art Treasures Act, 1972. It is true that the Antiquities and Art Treasures Act had not yet come into force on the date when the FIR was registered. It is also true that Omi Narang and Manu Narang were not ex-
tradited for the offence under the Antiquities and Art Trea-
sures Act, and, therefore, they could not be tried for that of-
fence in India. But the question whether any of the accused may be tried for a contravention of the Antiquities and Art Trea-
282 Spl.C. No.15/2014sures Act or under the corre-
sponding provision of the ear-
lier Act is really irrelevant in deciding whether the two con-
spiracies are one and the same.
The trite argument that a court takes cognizance of offences and not offenders was also ad-
vanced. This argument is again of no relevance in determining the question whether the two conspiracies which were taken cognizance of by the Ambala and the Delhi Courts were the same in substance. The ques-
tion is not whether the nature and character of the conspiracy has changed by the mere inclu-
sion of a few more conspirators as accused or by the addition of one more among the objects of the conspiracy. The question is whether the two conspiracies are in substance and truth the same. Where the conspiracy dis-
covered later is found to cover a much larger canvas with broader ramifications, it cannot be equated with the earlier con-
spiracy which covered a smaller field of narrower dimensions.
We are clear, in the present case, that the conspiracies which are the subject-matter of the two cases cannot be said to be identical though the conspir- acy which is the subject-matter of the first case may, perhaps, 283 Spl.C. No.15/2014 be said to have turned out to be part of the conspiracy which is the subject-matter of the second case. As we mentioned earlier, when investigation commenced in FIR RC 4 of 1976, apart from the circumstance that the prop-
erty involved was the same, the link between the conspiracy to cheat and to misappropriate and the conspiracy to dispose of the stolen property was not known.
12. The further connected ques-
tions arising for consideration are, what was the duty of the police on discovering that the conspiracy, which was the sub-
ject-matter of the earlier case, was part of a larger conspiracy, whether the police acted with-
out jurisdiction in investigating or in continuing to investigate into the case and whether the Delhi Court acted illegally in taking cognizance of the case?"
52. It may be true that in both the FIRs Kahlon was named. He was considered to be the prime accused. But, it is one thing to say that he acted in his individ- ual capacity and it is another thing to say that he conspired with a large number of persons to facilitate commission of 284 Spl.C. No.15/2014 crime by him as a result whereof all of them had made unlawful gains.
53. Even in Ram Lal Narang [(1979) 2 SCC 322 :
1979 SCC (Cri) 479] we have seen that two of the accused viz. Mehra and Malik, were com- mon. When two conspiracies are alleged; one is larger than the other, there may be some com-
mon factors but the nature of offence would differ. An offence committed would not be judged by mere mentioning of the sec- tions but the mode and manner in which the same was commit-
ted as also the nature thereof.
54. Strong reliance has been placed by Mr Rao on T.T. Antony [(2001) 6 SCC 181 : 2001 SCC (Cri) 1048] and Kari Choud-
hary [(2002) 1 SCC 714 : 2002 SCC (Cri) 269] . In T.T. Antony [(2001) 6 SCC 181 : 2001 SCC (Cri) 1048] the first FIR was lodged in 1994; another FIR was lodged three years there-
after on the selfsame cause of action. Ram Lal Narang [(1979) 2 SCC 322 : 1979 SCC (Cri) 479] in the said fact situation was distinguished on facts, opining:
(T.T. Antony case [(2001) 6 SCC 285 Spl.C. No.15/2014 181 : 2001 SCC (Cri) 1048] , p.
198, para 21) "21. ... This Court indicated that the real question was whether the two conspiracies were in truth and substance the same and held that the conspir-
acies in the two cases were not identical. It appears to us that the Court did not repel the con-
tention of the appellant regard- ing the illegality of the second FIR and the investigation based thereon being vitiated, but on facts found that the two FIRs in truth and substance were differ- ent -- the first was a smaller conspiracy and the second was a larger conspiracy as it turned out eventually."
128.Further in another judgment which is relied upon by the prosecution is required to be considered, wherein it has been held in the case of (2013)6 SCC 348 (Amitbhai Anilchandra Shah v. CBI ) wherein it has been held as :
Legal aspects as to permissibil- ity/impermissibility of second FIR 286 Spl.C. No.15/2014
36. Now, let us consider the le-
gal aspects raised by the peti-
tioner Amit Shah as well as CBI. The factual details which we have discussed in the earlier paragraphs show that right from the inception of entrust-
ment of investigation to CBI by order dated 12-1-2010 [(2010) 2 SCC 200 : (2010) 2 SCC (Cri) 1006] till filing of the charge-
sheet dated 4-9-2012, this Court has also treated the alleged fake encounter of Tulsiram Pra-
japati to be an outcome of one single conspiracy alleged to have been hatched in November 2005 which ultimately culmi-
nated in 2006. In such circum-
stances, the filing of the second FIR and a fresh charge-sheet for the same is contrary to the pro-
visions of the Code suggesting that the petitioner was not be-
ing investigated, prosecuted and tried "in accordance with law".
37. This Court has consistently laid down the law on the issue interpreting the Code, that a second FIR in respect of an of-
fence or different offences com- mitted in the course of the same transaction is not only imper-
missible but it violates Article 21 of the Constitution. In T.T. Antony [(2001) 6 SCC 181 : 2001 287 Spl.C. No.15/2014 SCC (Cri) 1048] , this Court has categorically held that registra- tion of second FIR (which is not a cross-case) is violative of Arti- cle 21 of the Constitution. The following conclusion in paras 19, 20 and 27 of that judgment are relevant which read as un- der : (SCC pp. 196-97 & 200) "19. The scheme of CrPC is that an officer in charge of a police station has to commence inves-
tigation as provided in Section 156 or 157 CrPC on the basis of entry of the first information re- port, on coming to know of the commission of a cognizable of-
fence. On completion of investi- gation and on the basis of the evidence collected, he has to form an opinion under Section 169 or 170 CrPC, as the case may be, and forward his report to the Magistrate concerned un- der Section 173(2) CrPC. How-
ever, even after filing such a re- port, if he comes into posses-
sion of further information or material, he need not register a fresh FIR; he is empowered to make further investigation, nor- mally with the leave of the court, and where during further investigation he collects further evidence, oral or documentary, he is obliged to forward the same with one or more further 288 Spl.C. No.15/2014 reports; this is the import of sub-section (8) of Section 173 CrPC.
20. From the above discussion it follows that under the scheme of the provisions of Sections 154, 155, 156, 157, 162, 169, 170 and 173 CrPC only the ear-
liest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154 CrPC. Thus there can be no sec-
ond FIR and consequently there can be no fresh investigation on receipt of every subsequent in-
formation in respect of the same cognizable offence or the same occurrence or incident giv- ing rise to one or more cogniz-
able offences. On receipt of in-
formation about a cognizable offence or an incident giving rise to a cognizable offence or offences and on entering the FIR in the station house diary, the officer in charge of a police station has to investigate not merely the cognizable offence reported in the FIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and file one or more reports as provided in Section 173 CrPC.
289 Spl.C. No.15/2014
***
27. A just balance between the fundamental rights of the citi-
zens under Articles 19 and 21 of the Constitution and the ex-
pansive power of the police to investigate a cognizable offence has to be struck by the court.
There cannot be any contro-
versy that sub-section (8) of Sec- tion 173 CrPC empowers the po-
lice to make further investiga-
tion, obtain further evidence (both oral and documentary) and forward a further report or reports to the Magistrate.
In Narang case [Ram Lal Narang v. State (Delhi Admn.), (1979) 2 SCC 322 : 1979 SCC (Cri) 479] it was, however, ob-
served that it would be appro-
priate to conduct further inves- tigation with the permission of the court. However, the sweep-
ing power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable of-
fences, consequent upon filing of successive FIRs whether be-
fore or after filing the final re- port under Section 173(2) CrPC.
It would clearly be beyond the purview of Sections 154 and 156 CrPC, nay, a case of abuse 290 Spl.C. No.15/2014 of the statutory power of inves-
tigation in a given case. In our view a case of fresh investiga-
tion based on the second or suc-
cessive FIRs, not being a counter-case, filed in connec-
tion with the same or connected cognizable offence alleged to have been committed in the course of the same transaction and in respect of which pur-
suant to the first FIR either in-
vestigation is under way or fi-
nal report under Section 173(2) has been forwarded to the Mag-
istrate, may be a fit case for ex-
ercise of power under Section 482 CrPC or under Articles 226/227 of the Constitution."
The above referred declaration of law by this Court has never been diluted in any subsequent judicial pronouncements even while carving out exceptions.
38. Mr Raval, learned ASG, by referring T.T. Antony [(2001) 6 SCC 181 : 2001 SCC (Cri) 1048] submitted that the said princi-
ples are not applicable and rele- vant to the facts and circum-
stances of this case as the said judgment laid down the ratio that there cannot be two FIRs relating to the same offence or occurrence. The learned ASG 291 Spl.C. No.15/2014 further pointed out that in the present case, there are two dis-
tinct incidents/occurrences, inasmuch as one being the con-
spiracy relating to the murder of Sohrabuddin with the help of Tulsiram Prajapati and the other being the conspiracy to murder Tulsiram Prajapati -- a potential witness to the earlier conspiracy to murder Sohrabud-
din. We are unable to accept the claim of the learned ASG. As a matter of fact, the aforesaid proposition of law making reg-
istration of fresh FIR impermis- sible and violative of Article 21 of the Constitution is reiterated and reaffirmed in the following subsequent decisions of this Court : (1) Upkar Singh v. Ved Prakash [(2004) 13 SCC 292 :
2005 SCC (Cri) 211] , (2) Babub- hai v. State of Gujarat [(2010) 12 SCC 254 : (2011) 1 SCC (Cri) 336] , (3) Chirra Shivraj v. State of A.P. [(2010) 14 SCC 444 :
(2011) 3 SCC (Cri) 757 : AIR 2011 SC 604] , and (4) C. Mu-
niappan v. State of T.N. [(2010) 9 SCC 567 : (2010) 3 SCC (Cri) 1402] In C. Muniappan [(2010) 9 SCC 567 : (2010) 3 SCC (Cri) 1402] this Court explained the "consequence test" i.e. if an of- fence forming part of the sec-
ond FIR arises as a consequence of the offence alleged in the 292 Spl.C. No.15/2014 first FIR then offences covered by both the FIRs are the same and, accordingly, the second FIR will be impermissible in law. In other words, the of-
fences covered in both the FIRs shall have to be treated as a part of the first FIR.
43. In Babulal [(1937-38) 65 IA 158 : AIR 1938 PC 130] , the Privy Council has held that : (IA p. 176) "... if several persons conspire to commit offences, and commit overt acts in pursuance of the conspiracy (a circumstance which makes the act of one the act of each and all the conspir-
ators), these acts are committed in the course of the same trans-
action, which embraces the con-
spiracy and the acts done under it. The common concert and agreement which constitute the conspiracy serve to unify the acts done in pursuance of it."
44. In Swamirathnam [AIR 1957 SC 340 : 1957 Cri LJ 422] , the following conclusion in para 7 is relevant : (AIR p. 344) "7. On behalf of the appellant Abu Bucker it was contended 293 Spl.C. No.15/2014 that there has been misjoinder of charges on the ground that several conspiracies, distinct from each other, had been lumped together and tried at one trial. The advocate for Swamirathnam, however, did not put forward this submis-
sion. We have examined the charge carefully and find no ground for accepting the con-
tention raised. The charge, as framed, discloses one single conspiracy, although spread over several years. There was only one object of the conspir-
acy and that was to cheat mem-
bers of the public. The fact that in the course of years others joined the conspiracy or that several incidents of cheating took place in pursuance of the conspiracy did not change the conspiracy and did not split up a single conspiracy into several conspiracies. It was suggested that although the modus operandi may have been the same, the several instances of cheating were not part of the same transaction. Reliance was placed on the case of Sharpurji Sorabji v. Emperor [AIR 1936 Bom 154] , and on the case of Choragudi Venkatadri v. Em-
peror [ILR (1910) 33 Mad 502] .
These cases are not in point. In the Bombay case, no charge of 294 Spl.C. No.15/2014 conspiracy had been framed and the decision in the Madras case was given before Section 120-B was introduced into the Penal Code. In the present case, the instances of cheating were in pursuance of the conspiracy and were therefore parts of the same transaction."
45. In Kandimalla Subba-
iah [AIR 1961 SC 1241 : (1961) 2 Cri LJ 302] this Court held that where the alleged offence have been committed in the course of the same transaction, the limitation placed by Section 234(1) CrPC, 1898 cannot oper-
ate.
52.Ram Lal Narang [Ram Lal Narang v. State (Delhi Admn.), (1979) 2 SCC 322 : 1979 SCC (Cri) 479] was cited to be an au-
thority carving out an exception to the general rule that there cannot be a second FIR in re-
spect of the same offence. This Court, in the said decision, held that a second FIR would lie in an event when pursuant to the investigation in the first FIR, a larger conspiracy is disclosed, which was not part of the first FIR. In the case on hand, while entrusting the investigation of the case relating to the killing 295 Spl.C. No.15/2014 of Sohrabuddin and Kausarbi to CBI, this Court, by order dated 12-1-2010 [(2010) 2 SCC 200 :
(2010) 2 SCC (Cri) 1006] , ex-
pressed a suspicion that Tul-
siram Prajapati could have been killed because he was an eye-
witness to the killings of Sohrabuddin and Kausarbi.
129. I have bestowed my anxious reading to the contentions which has been urged by both parties. In my humble opinion, the judgment of the Hon'ble Apex court clearly indicates that no two separate FIR can be registered on the basis of same transaction or cause of action. In the instant case, it pertains to larger conspiracy and as pointed out by the prosecution, the offence which is alleged against some of the accused persons are pertaining to illegal extraction of iron ore which cannot be clubbed with the illegal transportation of iron ore and at the same time, the question of illegal export of Iron ore cannot be clubbed and considered. It is relevant to note that in the instant case the stevedore or the service 296 Spl.C. No.15/2014 provider is M/ SMSPL, however the allegations which is leveled against them are of illegal selling of seized Iron ore from Belekeri port and in all the cases, the Accused company was M/ SMSPL which was being represented by its M. D Mr. Sathish Krishna Sail. Further the sale of Iron ore was being made on different dates and also its export was carried out on different dates through different vessels. Under the circumstances the contention of the Accused persons in this regard cannot be accepted.
130. The learned Senior counsel for Accused has relied upon another judgment of the Hon'ble Apex court reported in the case (1988)4 SCC 302 ( State of U.P. V Krishna Gopal and Another) wherein it is held as:
25. A person has, no doubt, a profound right not to be con-
victed of an offence which is not established by the eviden-
tial standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute 297 Spl.C. No.15/2014 standard. What degree of prob-
ability amounts to "proof" is an exercise particular to each case. Referring to the interde-
pendence of evidence and the confirmation of one piece of evi- dence by another a learned Au-
thor says [ See:"The Mathemat-
ics of Proof-II" : Glanville Williams : Criminal Law Re-
view, 1979, by Sweet and Max-
well, p. 340 (342)] :
"The simple multiplication rule does not apply if the separate pieces of evidence are depen- dent. Two events are dependent when they tend to occur to- gether, and the evidence of such events may also be said to be dependent. In a criminal case, different pieces of evidence di- rected to establishing that the defendant did the prohibited act with the specified state of mind are generally dependent. A juror may feel doubt whether to credit an alleged confession, and doubt whether to infer guilt from the fact that the defen- dant fled from justice. But since it is generally guilty rather than innocent people who make confessions, and guilty rather than innocent people who run away, the two doubts are not to be multiplied together. The one 298 Spl.C. No.15/2014 piece of evidence may confirm the other."
Doubts would be called reason-
able if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an over-emotional re-
sponse. Doubts must be actual and substantial doubts as to the guilt of the accused person arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case.
26. The concepts of probability, and the degrees of it, cannot ob-
viously be expressed in terms of units to be mathematically enu-
merated as to how many of such units constitute proof be-
yond reasonable doubt. There is an unmistakable subjective ele- ment in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust com-
mon sense and, ultimately, on 299 Spl.C. No.15/2014 the trained intuitions of the Judge. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, unin-
formed legitimisation of triviali- ties would make a mockery of administration of criminal jus- tice.
131. There cannot be any qualms with respect to the ratio laid down in the aforesaid judgment. Though it has been vehemently argued that the manner of investigation which is conducted by the CBI is not befitting to their stature, it is to be kept in mind about the peculiar facts and circumstance which had transpired in the above case. At the cost of repetition, it is to be considered that initially, the investigation had commenced when the FIR came to be registered by Forest authorities and subsequently the investigation came to be handed over to jurisdictional police station at Ankola. In this regard the evidence of PW-32 Shivanand H Chalawadi is required to be appreciated. In his chief examination he has deposed that on 08.06.2010 he had received the copy of the 300 Spl.C. No.15/2014 directions issued by the jurisdictional JMFC court at Ankola in PCR No.54/2010 wherein it was directed to him to investigate the case and to file the report. It is relevant to note that at that point of time the main allegations were levelled only against Accused No.1 the Port conservator Mr Mahesh J Bileye and accordingly FIR came to be registered as Ex P-96 in Cr No.159/2010. In his further evidence he has deposed that subsequently another complaint was lodged by Mr Narendra Hitalmakki requesting to include the name of 11 companies who were involved in theft of Iron ore and at this juncture the case takes a different turn and after that the investigation was entrusted to CID authorities which was later on entrusted to CBI as per the kind directions of the Hon'ble Apex Court. The facts which has transpired is certainly very peculiar in nature and the investigation was entrusted to CBI in the year 2013. Admittedly, the incident of theft of seized Iron ore at Balekeri port 301 Spl.C. No.15/2014 had taken place in the year 2010 and the investigation was taken up by CBI in the year 2013. It is also relevant to note that the Belekeri port is a seasonal port and it would be closed during the Mansoon period. Hence, it would not be appropriate to expect from the subsequent investigation agency to once again draw mahazar as contended by the learned defence counsels. As such the entire materials which are collected by the investigating agency is required to be considered with a pragmatic approach. The records speak volumes for the acts committed by the parties. Though learned Senior Counsel has vehemently argued that the prosecution has relied upon the computer extracts at majority of times to prove the alleged transactions that had taken place, it is also required to be appreciated that the said documents were furnished by the Accused themselves and they were in fact marked without there being any objection and in fact they have also 302 Spl.C. No.15/2014 admitted of issuing of the afore said documents. The court is solely not relying upon the documents which are produced by the Accused persons but the same is considered with the mahazars which were drawn in the year 2010 to ascertain and unearth the reality.
132.I have also bestowed upon the submission made by the learned Counsel for Accused No.1, wherein it is submitted that the Accused No.1 Mr. Mahesh J Bileye has been exonerated in the Departmental Enquiry initiated and it is submitted that when the accused is exonerated in the Departmental enquiry based on very same of facts and circumstances, his criminal proceedings cannot be sustained. The learned Counsel for accused has placed reliance on the judgment rendered by the Hon'ble Apex court reported in the case of (2020)9 SCC 636 ( Ashoo Surendranath Tewari V The Deputy Superintendent of Police, EOW, CBI and Another) wherein it is held as:
303 Spl.C. No.15/2014
11. In Radheshyam Kejri-
wal v. State of W.B. [Rad-
heshyam Kejriwal v. State of W.B., (2011) 3 SCC 581 : (2011) 2 SCC (Cri) 721] , this Court held as follows: (SCC pp. 594-96, paras 26, 29 & 31) "26. We may observe that the standard of proof in a criminal case is much higher than that of the adjudication proceedings.
The Enforcement Directorate has not been able to prove its case in the adjudication pro-
ceedings and the appellant has been exonerated on the same al-
legation. The appellant is fac-
ing trial in the criminal case.
Therefore, in our opinion, the determination of facts in the adjudication proceedings can-
not be said to be irrelevant in the criminal case. In B.N. Kashyap [B.N. Kashyap v. Crown, 1944 SCC OnLine Lah 46 : AIR 1945 Lah 23] the Full Bench had not con-
sidered the effect of a finding of fact in a civil case over the criminal cases and that will be evident from the following pas-
sage of the said judgment: (SCC OnLine Lah: AIR p. 27) '... I must, however, say that in answering the question, I have 304 Spl.C. No.15/2014 only referred to civil cases where the actions are in per-
sonam and not those where the proceedings or actions are in rem. Whether a finding of fact arrived at in such proceedings or actions would be relevant in criminal cases, it is unneces-
sary for me to decide in this case. When that question arises for determination, the provi-
sions of Section 41 of the Evi-
dence Act, will have to be care-
fully examined.' ***
29. We do not have the slightest hesitation in accepting the broad submission of Mr Malho-
tra that the finding in an adju-
dication proceeding is not bind- ing in the proceeding for crimi-
nal prosecution. A person held liable to pay penalty in adjudi-
cation proceedings cannot nec-
essarily be held guilty in a criminal trial. Adjudication pro- ceedings are decided on the ba-
sis of preponderance of evi-
dence of a little higher degree whereas in a criminal case the entire burden to prove beyond all reasonable doubt lies on the prosecution.
*** 305 Spl.C. No.15/2014
31. It is trite that the standard of proof required in criminal proceedings is higher than that required before the adjudicat-
ing authority and in case the accused is exonerated before the adjudicating authority whether his prosecution on the same set of facts can be allowed or not is the precise question which falls for determination in this case."
12. After referring to various judgments, this Court then culled out the ratio of those de-
cisions in para 38 as follows:
(Radheshyam Kejriwal case [Radheshyam Kejri-
wal v. State of W.B., (2011) 3 SCC 581 : (2011) 2 SCC (Cri) 721] , SCC p. 598) "38. The ratio which can be culled out from these decisions can broadly be stated as fol-
lows:
(i) Adjudication proceedings and criminal prosecution can be launched simultaneously;
(ii) Decision in adjudication pro-
ceedings is not necessary before initiating criminal prosecution; 306 Spl.C. No.15/2014
(iii) Adjudication proceedings and criminal proceedings are independent in nature to each other;
(iv) The finding against the per- son facing prosecution in the adjudication proceedings is not binding on the proceeding for criminal prosecution;
(v) Adjudication proceedings by the Enforcement Directorate is not prosecution by a competent court of law to attract the provi- sions of Article 20(2) of the Con- stitution or Section 300 of the Code of Criminal Procedure;
(vi) The finding in the adjudica- tion proceedings in favour of the person facing trial for iden- tical violation will depend upon the nature of finding. If the ex-
oneration in adjudication pro-
ceedings is on technical ground and not on merit, prosecution may continue; and
(vii) In case of exoneration, how- ever, on merits where the alle-
gation is found to be not sus-
tainable at all and the person held innocent, criminal prosecu- tion on the same set of facts and circumstances cannot be al-
307 Spl.C. No.15/2014
lowed to continue, the underly-
ing principle being the higher standard of proof in criminal cases."
133. There can be no qualms with respect to the ratio laid down by the Hon'ble Apex court but the conclusion which is drawn by the Hon'ble Apex court is required to be appreciated. In the aforesaid judgment the Hon'ble Apex court has clearly held that there cannot be any bar to initiate Departmental proceedings as well as criminal proceeding. Further it has been held that if exoneration of the person facing trial for identical violation will depend on nature of finding and at conclusion it has been held by the Hon'ble Apex court that the yardstick would be to judge as to whether the allegation in the adjudication proceedings and the proceedings of prosecution are identical in nature. In this regard, I have also considered the document which has been furnished by the Accused No.1 with respect to the orders passed in the adjudication proceedings before the 308 Spl.C. No.15/2014 Government. It is relevant to note that in those proceedings it was held that the act of Accused No.1 in issuing clearance certificate was as per the provisions of section 43 of Indian Ports Act, 1908. However the documents doesn't indicate that whether the witnesses who were examined were one and the same. At the cost of repetition it is relevant to note that criminal proceedings were initiated not only for issuance of port clearance by Accused No.1 but for entering into larger conspiracy with other accused person. At the cost of repetition, it is relevant to note that it is the definite case of the prosecution that he in furtherance of conspiracy had issued port clearance of the seized Iron Ore materials which were entrusted to his custody. Though it is argued that he was not entrusted with the domain over the seized materials, it has been negated and held in favour of the prosecution of establishing the fact of entrustment of the property. Under the circumstances 309 Spl.C. No.15/2014 the contention of the accused No.1 in this regard cannot be accepted. Further the court has relied upon the judgment of the Hon'ble High court of Karnataka rendered in State by Karnataka Lokayuktha V T Manjunath in Crl.R.P. No.422/2018 decided on 26.7.2024 it has been held as:
18. The Apex Court also an ob-
servation is made in para-
graph 9 that the continuance of the trial was not on the very same evidence as what weighed with the authorities in exonerating the employee in the departmental proceedings.
This fact, also appears not to have been considered by the High Court in its correct per-
spective. In the case on hand also, departmental enquiry is different with regard to mis-
conduct. But in the case on hand, there is a criminal mis-
conduct making demand and acceptance of bribe amount.
Hence, having considered the material available on record, it needs to comes to the con-
clusion that the principles laid down in the case of ASHOO SURENDRANATH TEWARI is 310 Spl.C. No.15/2014 not applicable to the facts of the case on hand when there is an evidence of conversation with regard to demand and ac-
ceptance of bribe amount of Rs.15,000/- through accused No.2. When the criminal mis-
conduct has been alleged against a Government em-
ployee who is discharging the duty as a public servant, de-
manded the amount illegally and raid was conducted and material discloses regarding demand and acceptance of the same, it needs trial and even exonerating him in Departmen-
tal Enquiry will not come in the way of continuing the trial against the petitioner/accused No1. Hence, I do not find any merit in the petition filed by the petitioner/accused No1.
Even though, questioning of giving liberty to proceed fur-
ther against accused No.1/peti- tioner, no grounds are made out even for setting aside the order of giving liberty to pro-
ceed against him in accor-
dance with law. I have already pointed out that the question of giving liberty also does not arise when sanction is ac-
corded by the Competent Au-
thority in terms of the Notifi-
311 Spl.C. No.15/2014
cation dated 11.02.2010 which has been extracted above which confers on the Transport Commissioner to ac-
cord the sanction in view of the order of the Government.
Hence, the order impugned is liable to be set aside and the Trial Court has to proceed fur-
ther against the accused Nos.1 and 2 in accordance with law.
134. All the aforesaid act clearly points out towards the act committed by the accused persons and in fact it is a serious fraud played upon the Government exchequer which is successfully proved beyond reasonable doubt by the prosecution.
135. Last but not the least, I have bestowed my anxious reading to the fact that Accused No.2 company was being represented by its Managing Director Mr Chethan Shah. It is alleged that he was the one who was involved in the affairs of the company. In this regard it would be worthwhile to consider the relevant provisions of law with respect to Body Corporate. Companies are considered as legal 312 Spl.C. No.15/2014 persons. As per the provisions of Section 11 of Indian Penal Code, the inclusive definition of the word 'Person' can be traced. A person includes Company, or Association or Body of person whether incorporated or not. The provisions of Section 305 of Cr.P.C provides for the procedure to be adopted when Company or Registered Society is an accused. The main aspect which is required to be considered with respect to the act committed by or on behalf of the company is that not only he was holding vital or important post in the company or the Body Corporate at the time of committing of offence, but also, he was in-charge of and was at helm of affairs of the company. The concept of 'alter ego' of the company. In this regard reliance is placed on the judgment of the Hon'ble Apex Court reported in (2015) 4 SCC 609 in the case of (Sunil Bharathi Mittal V C.B.I) wherein it is held as:
313 Spl.C. No.15/2014
(ii) Principle of "alter ego", as applied
37. The moot question is whether the aforesaid proposition, to proceed against the appellants is backed by law? In order to find the answer, let us scan through the case law that was cited during the arguments.
38. First case which needs to be discussed is Iridium India [Iridium India Telecom Ltd. v. Motorola Inc., (2011) 1 SCC 74 : (2010) 3 SCC (Cri) 1201] . Before we discuss the facts of this case, it would be relevant to point out that the question as to whether a company could be prosecuted for an offence which requires mens rea had been earlier referred to in a Constitution Bench of five Judges in Standard Chartered Bank v. Directorate of Enforcement [(2005) 4 SCC 530 : 2005 SCC (Cri) 961] . The Constitution Bench had held that a company can be prosecuted and convicted for an offence which requires a minimum sentence of imprisonment. In para 8 of the judgment, the Constitution Bench clarified that the Bench is not expressing any opinion on the question whether a corporation could be attributed with requisite mens rea to prove the guilt. Para 8 reads as under : (SCC p. 542) 314 Spl.C. No.15/2014 "8. ... It is only in a case requiring mens rea, a question arises whether a corporation could be attributed with requisite mens rea to prove the guilt. But as we are not concerned with this question in these proceedings, we do not express any opinion on that issue."
39. In Iridium India [Iridium India Telecom Ltd. v. Motorola Inc., (2011) 1 SCC 74 : (2010) 3 SCC (Cri) 1201] , the aforesaid question fell directly for consideration, namely, whether a company could be prosecuted for an offence which requires mens rea and discussed this aspect at length, taking note of the law that prevails in America and England on this issue. For our benefit, we will reproduce paras 59-64 herein : (SCC pp. 98-100) "59. The courts in England have emphatically rejected the notion that a body corporate could not commit a criminal offence which was an outcome of an act of will needing a particular state of mind. The aforesaid notion has been rejected by adopting the doctrine of attribution and imputation. In other words, the criminal intent of the 'alter ego' of the company/body corporate i.e. the person or group of persons that guide 315 Spl.C. No.15/2014 the business of the company, would be imputed to the corporation.
60. It may be appropriate at this stage to notice the observations made by MacNaghten, J. in Director of Public Prosecutions v. Kent and Sussex Contractors Ltd. [1944 KB 146 : (1944) 1 All ER 119 (DC)] : (KB p.
156) A body corporate is a "person" to whom, amongst the various attributes it may have, there should be imputed the attribute of a mind capable of knowing and forming an intention--indeed it is much too late in the day to suggest the contrary. It can only know or form an intention through its human agents, but circumstances may be such that the knowledge of the agent must be imputed to the body corporate.
Counsel for the respondents says that, although a body corporate may be capable of having an intention, it is not capable of having a criminal intention. In this particular case the intention was the intention to deceive. If, as in this case, the responsible agent of a body corporate puts forward a document knowing it to be false and intending that it should deceive, I apprehend, according to the authorities that Viscount Caldecote, L.C.J., has cited, 316 Spl.C. No.15/2014 his knowledge and intention must be imputed to the body corporate.
61. The principle has been reiterated by Lord Denning in Bolton (H.L.) (Engg.) Co. Ltd. v. T.J. Graham & Sons Ltd. [(1957) 1 QB 159 : (1956) 3 WLR 804 : (1956) 3 All ER 624 (CA)] in the following words : (QB p.
172) A company may in many ways be likened to a human body. They have a brain and a nerve centre which controls what they do. They also have hands which hold the tools and act in accordance with directions from the centre. Some of the people in the company are mere servants and agents who are nothing more than hands to do the work and cannot be said to represent the mind or will. Others are Directors and managers who represent the directing mind and will of the company, and control what they do. The state of mind of these managers is the state of mind of the company and is treated by the law as such. So you will find that in cases where the law requires personal fault as a condition of liability in tort, the fault of the manager will be the personal fault of the company. That is made clear in 317 Spl.C. No.15/2014 Lord Haldane's speech in Lennard's Carrying Co. Ltd. v. Asiatic Petroleum Co. Ltd. [1915 AC 705 : (1914-15) All ER Rep 280 (HL)] (AC at pp. 713 &
714). So also in the criminal law, in cases where the law requires a guilty mind as a condition of a criminal offence, the guilty mind of the Directors or the managers will render the company themselves guilty.
62. The aforesaid principle has been firmly established in England since the decision of the House of Lords in Tesco Supermarkets Ltd. v. Nattrass [1972 AC 153 : (1971) 2 WLR 1166 : (1971) 2 All ER 127 (HL)] . In stating the principle of corporate liability for criminal offences, Lord Reid made the following statement of law : (AC p. 170 E-G) 'I must start by considering the nature of the personality which by a fiction the law attributes to a corporation. A living person has a mind which can have knowledge or intention or be negligent and he has hands to carry out his intentions. A corporation has none of these : it must act through living persons, though not always one or the same person. Then the person who acts is not speaking or acting for the company. He is acting as the 318 Spl.C. No.15/2014 company and his mind which directs his acts is the mind of the company. There is no question of the company being vicariously liable. He is not acting as a servant, representative, agent or delegate. He is an embodiment of the company or, one could say, he hears and speaks through the persona of the company, within his appropriate sphere, and his mind is the mind of the company. If it is a guilty mind then that guilt is the guilt of the company. It must be a question of law whether, once the facts have been ascertained, a person in doing particular things is to be regarded as the company or merely as the company's servant or agent. In that case any liability of the company can only be a statutory or vicarious liability.'
63. From the above it becomes evident that a corporation is virtually in the same position as any individual and may be convicted of common law as well as statutory offences including those requiring mens rea. The criminal liability of a corporation would arise when an offence is committed in relation to the business of the corporation by a person or body of persons in control of its affairs. In such circumstances, it would be necessary to ascertain that 319 Spl.C. No.15/2014 the degree and control of the person or body of persons is so intense that a corporation may be said to think and act through the person or the body of persons. The position of law on this issue in Canada is almost the same. Mens rea is attributed to corporations on the principle of 'alter ego' of the company.
64. So far as India is concerned, the legal position has been clearly stated by the Constitution Bench judgment of this Court in Standard Chartered Bank v. Directorate of Enforcement [(2005) 4 SCC 530 : 2005 SCC (Cri) 961] . On a detailed consideration of the entire body of case laws in this country as well as other jurisdictions, it has been observed as follows : (SCC p. 541, para 6) '6. There is no dispute that a company is liable to be prosecuted and punished for criminal offences. Although there are earlier authorities to the effect that corporations cannot commit a crime, the generally accepted modern rule is that except for such crimes as a corporation is held incapable of committing by reason of the fact that they involve personal malicious intent, a corporation may be subject to indictment or other criminal process, 320 Spl.C. No.15/2014 although the criminal act is committed through its agents.'"
40. It is abundantly clear from the above that the principle which is laid down is to the effect that the criminal intent of the "alter ego" of the company, that is the personal group of persons that guide the business of the company, would be imputed to the company/corporation. The legal proposition that is laid down in the aforesaid judgment in Iridium India case [Iridium India Telecom Ltd. v. Motorola Inc., (2011) 1 SCC 74 : (2010) 3 SCC (Cri) 1201] is that if the person or group of persons who control the affairs of the company commit an offence with a criminal intent, their criminality can be imputed to the company as well as they are "alter ego" of the company.
41. In the present case, however, this principle is applied in an exactly reverse scenario. Here, company is the accused person and the learned Special Magistrate has observed in the impugned order that since the appellants represent the directing mind and will of each company, their state of mind is the state of mind of the company and, therefore, on this premise, acts of the company are attributed and imputed to the appellants. It is difficult to accept it 321 Spl.C. No.15/2014 as the correct principle of law. As demonstrated hereinafter, this proposition would run contrary to the principle of vicarious liability detailing the circumstances under which a Director of a company can be held liable.
(iii) Circumstances when Director/person in charge of the affairs of the company can also be prosecuted, when the company is an accused person
42. No doubt, a corporate entity is an artificial person which acts through its officers, Directors, Managing Director, Chairman, etc. If such a company commits an offence involving mens rea, it would normally be the intent and action of that individual who would act on behalf of the company. It would be more so, when the criminal act is that of conspiracy. However, at the same time, it is the cardinal principle of criminal jurisprudence that there is no vicarious liability unless the statute specifically provides so.
45. This very principle is elaborated in various other judgments. We have already taken note of Maharashtra State Electricity Distribution Co. Ltd. [Maharashtra State Electricity Distribution Co. Ltd. v. Datar 322 Spl.C. No.15/2014 Switchgear Ltd., (2010) 10 SCC 479 :
(2011) 1 SCC (Cri) 68] and S.K. Alagh [S.K. Alagh v. State of U.P., (2008) 5 SCC 662 : (2008) 2 SCC (Cri) 686] . A few other judgments reiterating this principle are the following:
45.1.Jethsur Surangbhai v. State of Gujarat [1984 Supp SCC 207 : 1984 SCC (Cri) 474] : (SCC pp. 210-11, para
9) "9. ... With due respect what the High Court seems to have missed is that in a case like this where there was serious defalcation of the properties of the Sangh, unless the prosecution proved that there was a close cohesion and collusion between all the accused which formed the subject-matter of a conspiracy, it would be difficult to prove the dual charges particularly against the appellant (A-1). The charge of conspiracy having failed, the most material and integral part of the prosecution story against the appellant disappears. The only ground on the basis of which the High Court has convicted him is that as he was the Chairman of the Managing Committee, he must be held to be vicariously liable for any order given or misappropriation committed by the other accused. The 323 Spl.C. No.15/2014 High Court, however, has not referred to the concept of vicarious liability but the findings of the High Court seem to indicate that this was the central idea in the mind of the High Court for convicting the appellant. In a criminal case of such a serious nature mens rea cannot be excluded and once the charge of conspiracy failed the onus lay on the prosecution to prove affirmatively that the appellant was directly and personally connected with acts or omissions pertaining to Items 2, 3 and 4. It is conceded by Mr Phadke that no such direct evidence is forthcoming and he tried to argue that as the appellant was Chairman of the Sangh and used to sign papers and approve various tenders, even as a matter of routine he should have acted with care and caution and his negligence would be a positive proof of his intention to commit the offence. We are however unable to agree with this somewhat broad statement of the law. In the absence of a charge of conspiracy the mere fact that the appellant happened to be the Chairman of the Committee would not make him criminally liable in a vicarious sense for Items 2 to 4.
There is no evidence either direct or circumstantial to show that apart from approving the purchase of 324 Spl.C. No.15/2014 fertilisers he knew that the firms from which the fertilisers were purchased did not exist. Similar is the case with the other two items. Indeed, if the Chairman was to be made liable then all members of the Committee viz. Tahsildar and other nominated members, would be equally liable because all of them participated in the deliberations of the meetings of the Committee, a conclusion which has not even been suggested by the prosecution. As Chairman of the Sangh the appellant had to deal with a large variety of matters and it would not be humanly possible for him to analyse and go into the details of every small matter in order to find out whether there has been any criminal breach of trust. In fact, the hero of the entire show seems to be A-3 who had so stage-managed the drama as to shield his guilt and bring the appellant in the forefront. But that by itself would not be conclusive evidence against the appellant. There is nothing to show that A-3 had either directly or indirectly informed the appellant regarding the illegal purchase of fertilisers or the missing of the five oil engines which came to light much later during the course of the audit. Far from proving the intention the prosecution has failed 325 Spl.C. No.15/2014 to prove that the appellant had any knowledge of defalcation of Items 2 to 4. In fact, so far as Item 3 is concerned, even Mr Phadke conceded that there is no direct evidence to connect the appellant."
(emphasis supplied)
136. When the aforesaid principles are applied to the case on hand, it indicates that the materials in the charge sheet indicates of involvement of Accused No.3 Mr. Chetha Shah. Further I have also relied upon the evidence of PW34 Santhosh Menon who was the Deputy General Manager of A2 Company and has deposed that they came to know about the seizure of iron ore and prior to that they were having negotiations to sell the same. In the instant case, it is noticed that after seizure being made, a writ petition was filed and even they had obtained interim order. It is also relevant to note that it is suggested during the course of cross-examination to PW35 Takath Singh Ranawath that the forest Authorities had intentionally not verified the documents which were furnished by 326 Spl.C. No.15/2014 them. If the said submission is to be accepted at its face value, again the Accused themselves have to explain that why they had not once again knocked the doors of the court for violating the kind interim orders of the Hon'ble High Court. It is also relevant note that the suggestion made to the witness indicates that they had sold the iron ore without obtaining approval from the competent authorities. The afore said acts are required to be depreciated, which is nothing but playing fraud upon the court. Hence, the Accused No.3 should also be made liable for the illegal act of the selling Iron ore from the seized materials at Balekeri port. The very conduct itself requires to be depreciated and nobody can be permitted to play fraud upon the process of law and that too before the Superior Constitutional Guardians. All the aforesaid evidence would only indicate with respect to casting aspersion on their evidence. Under the 327 Spl.C. No.15/2014 circumstances, the accused No.3 and 6 are to be made personally liable for commission of the offence.
EPILOGUE
137.Before it is to say 'usque ad finem' it would be appropriate to recall the manner in which the above case came in to lime light. At this juncture, it is required to note that the aforesaid case came to registered as per the kind intervention of the Hon'ble Apex Court which is considered as guardian and champion of Constitutional rights of the citizenry and also due to the active intervention of Samaja Parivarthana Samudaya which had filed a Special leave Petition before the Hon'ble Apex Court. It would not be out of context to place appreciation to the learned Senior Public Prosecutor Smt.K.S.Hema and her team who had rendered assistance in the above case in conducting the trial and also it would be worth to place appreciation to the manner in which the able assistance was rendered by the learned 328 Spl.C. No.15/2014 Senior Counsels Sri Hasmath Pasha, Sri Murthy D.Naik and Sri Kiran Javali who had co-operated for the sesquipedalian trial with their limpid examination and submissions with lot of perspicacity in the above case. It would be apposite to state the wordings of the Hon'ble Apex Court as narrated in (2014) 2 SCC 532 (Manohar Lal Sharma Vs. Principal Secretary) wherein it is stated as
36. In 350 B.C.E., Aristotle suggested in Politics that to protect the treasury from being defrauded, let all money be issued openly in front of the whole city, and let copies of the accounts be deposited in various wards. What Aristotle said centuries back may not be practicable today but for successful working of the democracy it is essential that public revenues are not defrauded and public servants do not indulge in bribery and corruption and if they do, the allegations of corruption are inquired into fairly, properly and promptly and those who are guilty are brought to book.
329 Spl.C. No.15/2014
138. All the aforesaid act clearly points out towards the act committed by the accused persons and in fact it is a serious fraud played upon the Government exchequer which is successfully proved beyond reasonable doubt by the prosecution. Accordingly, I answer points for consideration in the Affirmative.
139. Point No.7: From the discussion made herein above, it is clear that the accused No.1 Mahesh J.Biliye, Accused No.2 M/s Ashapura Minechem Ltd., accused No.3 Chethan Shah, accused No.4 M/s.Shri Mallikarjuna Shipping Pvt Ltd., and accused No.5 Sri Satish Krishna Sail, are held to be guilty and I proceed to pass the following:
ORDER Acting under Sec.235(2) of Cr.P.C., the accused No.1 Mahesh J.Biliye, Accused No.2 M/s Ashapura Minechem Ltd., accused No.3 Chethan Shah, accused No.4 M/s.Shri Mallikarjuna Shipping Pvt Ltd., and accused 330 Spl.C. No.15/2014 No.5 Sri Satish Krishna Sail are held guilty for the offences punishable under Sec.120- B, 420, 379 of IPC and further accused No.1 Mahesh J.Biliye is held guilty for committing offences punishable under Sec.409 r/w 120B of IPC and under Sec.13(2) r/w 13(1)
(c) and (d) of the Prevention of Corruption of Act, 1988.
The bail bonds executed by the accused persons and the surety bonds shall stand cancelled.
(Dictated to the Stenographer Grade-I, part of the judgment dictated directly on computer, transcribed and typed by him, revised and corrected by me and then pronounced in the Open Court on this the 24th day of October, 2024) (SANTHOSH GAJANAN BHAT) LXXXI Addl. City Civil & Sessions Judge, Bengaluru City (CCH-82) (Special Court exclusively to deal with criminal cases related to former and elected MPs/ MLAs in the State of Karnataka) 331 Spl.C. No.15/2014 ORDER REGARDING QUANTUM OF SENTENCE
1. Heard the Learned Senior Public Prosecutor on behalf of CBI authorities and also the Learned Counsel for accused persons.
2. The Learned Senior Public Prosecutor has vehemently argued that in the instant case, the Accused No.1 Mahesh J Bileya who was the Port Conservator had entered into criminal Conspiracy with other accused persons and in furtherance of the same, he had conspired with them and had ensured that the seized Iron Ore at Belekeri Port came to be exported. It is also submitted by the Learned Senior Public Prosecutor that due to the act of the Accused persons loss has been caused to the Government exchequer. Further it is submitted by her that in the instant case the Accused Company with the connivance of Accused no.1 the then Port Conservator 332 Spl.C. No.15/2014 had exported Iron ore to an extent of Rs.9,05,99,988,/- Further she has relied upon the judgment of the Hon'ble Apex court reported in (2003) 3 SCC 641 ( Ram Narayan Popli V C.B.I.) wherein it is held as:
380. The offences in these cases were not of the conventional or traditional type. The ultimate objective was to use public money in a carefully planned manner for personal use with no right to do it.
381. Funds of the public bodies were utilized as if they were private funds.
There was no legitimacy in the transactions. Huge funds running into hundreds of crores of MUL, a government company, were diverted and all the accused persons concerned A-1, A-3 and A-5 played dubious roles in these illegitimate transactions.
Their acts had serious repercussions on the economic system of the country, and the magnitude of financial impact involved in the present appeal is only the tip of the iceberg.
333 Spl.C. No.15/2014There were several connected cases and interestingly some of the prosecution witnesses in the present case are stated to be accused in those cases. That itself explains the thread of self-
perseverance running through their testimony.
Therefore, the need to pierce the facadial smokescreen to unravel the truth to lift the veil so that the apparent, which is not real, can be avoided. The proverbial red herrings are to be ignored, to find out the guilt of the accused.
382. The cause of the community deserves better treatment at the hands of the court in the discharge of its judicial functions.
The community or the State is not a persona non grata whose cause may be treated with disdain. The entire community is aggrieved if economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of the moment upon passions being aroused. An economic offence is committed with 334 Spl.C. No.15/2014 cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the community. A disregard for the interest of the community can be manifested only at the cost of forfeiting the trust and faith of the community in the system to administer justice in an even-handed manner without fear of criticism from the quarters which view white-collar crimes with a permissive eye, unmindful of the damage done to the national economy and national interest, as was aptly stated in State of Gujarat v. Mohanlal Jitamalji Porwal [(1987) 2 SCC 364 : 1987 SCC (Cri) 364 : AIR 1987 SC 1321] .
383. Unfortunately in the last few years, the country has seen an alarming rise in white-collar crimes which has affected the fibre of the country's economic structure. These cases are nothing but private gain at the cost of the public, and lead to economic disaster.
335 Spl.C. No.15/2014
3. By relying upon the same, the Learned Senior Public Prosecutor has requested the court to award maximum punishment and also suitable fine so as to enumerate the loss caused to the Government Exchequer.
4. Per contra, the learned counsel for Accused No.1 Mahesh Bileya, Sri Vishwanath Sabarad has vehemently argued that the role of the Accused No.1 as could be discerned from the judgment is very minimal and the main allegations which is leveled against him is that he has aided and supported the other accused persons to commit the offence and there are no materials to indicate that he had made illegal or unlawful gain through the entire proceedings. Further he has submitted that the accused is aged about 65 years and he is suffering from various health ailments and has also undergone one year of imprisonment as under trial prisoner and hence he has requested to take a lenient view. 336 Spl.C. No.15/2014
5. The court had also afforded an opportunity to Accused No.1 to make his submission with respect to quantum of sentence and he has submitted in par with the submission of his counsel.
6. The learned Senior counsel Sri Murthy D Nayak appearing on behalf of Sri V.N.N advocate for Accused No. 4 M/S SMSPL and Accused No.5 Sathish Krishna Sail has argued that minimum sentence may be imposed upon Accused No.5 who is also the sitting MLA and has submitted that he is suffering from various health ailments and also has requested the court to take into account that the accused is not having any criminal antecedent since he is having chronic Liver problem, he has requested the court to take a lenient view.
7. Further Accused No.5 Satish Krishna Sail has submitted to the court that he has two daughter of which one is still a student and his wife is also suffering from chronic health disorder and has 337 Spl.C. No.15/2014 submitted medical records in order to butters his contention. Further he has also requested to consider his benevolent act a people's representative.
8. The Accused No.2 M/S Ashapura Minechem Pvt Ltd., being represented by its representative has submitted that the company is not blacklisted nor any criminal antecedents are attributed against the company and they are having branches in various countries and several employees are directly depending for their livelihood. Hence they have requested the court to take lenient view and impose minimum sentence. Further on behalf of accused No.3 it is submitted that he is mining business for the last 25 years, wherein they are having base in 8 to 10 countries. The accused No.3 himself has submitted that he had transacted in good faith and more than 4000 people were on his company's pay roll. In the event of passing harsh 338 Spl.C. No.15/2014 sentence the same would effect his company at large and has requested the Court to show leniency.
9. Heard the parties and the accused have reiterated the submissions of their counsels and the point that requires to be considered is what would be the appropriate sentence that could be imposed on the accused persons.
10. Time and again, it has been reiterated by the Hon'ble Apex Court that in the matters pertaining to awarding sentence, the court should be cautious and sift and weigh the factors which are relevant for arriving at a just conclusion. It is also the cardinal principle of law that the nature and gravity of the crime is important than the criminality. The court at the time of passing an order on quantum of sentence has to look in to the materials in a different manner than that of the appreciating evidence for passing of judgment. The court is not against the criminal but against the criminal act and at the time of considering 339 Spl.C. No.15/2014 the quantum of sentence, the court is required to look in to the manner in which the crime is committed. There are no specific legislation with respect to passing of quantum of sentence. However, the parameter which is required to be considered is based on the case laws which are required to be looked in to. Apart from that the Hon'ble Apex Court has also held that at the time of passing of sentence, an exercise has to be made by the court by pointing the aggravating and mitigating factors and balance has to be secured in order to appreciate the appropriate sentence that could be imposed upon the parties. In the aforesaid authorities, the Hon'ble Apex Court has also held that the economic offences have to be considered as a class apart, which cannot be equated with any other ordinary criminal case. Though the allegations may not look severe, in terms of physical harm being made, at the same time, the matters pertaining to economic offences would have a deep 340 Spl.C. No.15/2014 socioeconomic effect on the society at large. By keeping the same in mind, I have bestowed my anxious reading to the submissions made by the Learned Counsel for the accused, Ld. Public Prosecutor and also the submissions of the accused persons. What could be the criteria for imposing just and appropriate sentence is laid down by the Hon'ble Apex court in the judgment rendered in (2022) 7 SCC 628 (Jaswinder Singh V Navjot Singh Sidhu) wherein it is held as:
25. We would like to deliberate a little more in detail on the necessity of maintaining a reasonable proportion between the seriousness of the crime and the punishment. While a disproportionately severe sentence ought not to be passed, simultaneously it also does not clothe the law courts to award a sentence which would be manifestly inadequate, having due regard to the nature of the offence, since an inadequate sentence would fail to produce a deterrent effect 341 Spl.C. No.15/2014 on the society at large.
Punishments are awarded not because of the fact that it has to be an eye for an eye or a tooth for a tooth, rather having its due impact on the society; while undue harshness is not required but inadequate punishment may lead to sufferance of the community at large. [Jai Kumar v. State of M.P., (1999) 5 SCC 1 : 1999 SCC (Cri) 638]
26. An important aspect to be kept in mind is that any undue sympathy to impose inadequate sentence would do more harm to justice system and undermine the public confidence in the efficacy of law. The society cannot long endure under serious threats and if the courts do not protect the injured, the injured would then resort to private vengeance and, therefore, it is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed.
[Sumer Singh v. Surajbhan Singh, (2014) 7 SCC 323 :
(2014) 3 SCC (Cri) 184] It 342 Spl.C. No.15/2014 has, thus, been observed that the punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated.
[Ravji v. State of Rajasthan, (1996) 2 SCC 175 : 1996 SCC (Cri) 225]
27. A three-Judge Bench of this Court in State of Karnataka v. Krishnappa [St ate of Karnataka v. Krishnappa, (2000) 4 SCC 75 : 2000 SCC (Cri) 755] while discussing the purpose of imposition of adequate sentence opined in para 18 that : (SCC p. 83) "18. ... Protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing an appropriate sentence."
28. The sentencing philosophy for an offence has a social goal that the sentence has to be based on the principle that the accused must realise that the crime committed by him has not only created a dent in his life but also a 343 Spl.C. No.15/2014 concavity in the social fabric. [Shyam Narain v. State (NCT of Delhi), (2013) 7 SCC 77 :
(2013) 3 SCC (Cri) 1] While opportunity to reform has to be kept in mind, the principle of proportionality also has to be equally kept in mind.
29. Criminal jurisprudence with the passage of time has laid emphasis on victimology, which fundamentally is a perception of a trial from the viewpoint of the criminal as well as the victim. Both are viewed in the social context and, thus, victim's rights have to be equally protected [Rattiram v. State of M.P., (2012) 4 SCC 516: (2012) 2 SCC (Cri) 481] . It would be useful to rely on the observations of this Court in Gopal Singh v. State of Uttarakhand [Gopal Singh v. State of Uttarakhand, (2013) 7 SCC 545 : (2013) 3 SCC (Cri) 608] that just punishment is the collective cry of the society and while collective cry has to be kept uppermost in mind, simultaneously the 344 Spl.C. No.15/2014 principle of proportionality between the crime and punishment cannot be totally brushed aside. Thus, the principle of just punishment is the bedrock of sentencing in respect of a criminal offence. No doubt there cannot be a straitjacket formula nor a solvable theory in mathematical exactitude.
An offender cannot be allowed to be treated with leniency solely on the ground of discretion vested in a court. Similarly, in Alister Anthony Pareira v. State of Maharashtra [Alister Anthony Pareira v. State of Maharashtra, (2012) 2 SCC 648 : (2012) 1 SCC (Civ) 848 :
(2012) 1 SCC (Cri) 953 : AIR 2012 SC 3802] , the twin objective of the sentencing policy to be kept in mind was emphasised as deterrence and correction and, thus, principle of proportionality in sentencing a convict were held to be well entrenched in the criminal jurisprudence.
30. We may also take note of the recent judgment of this Court decided by a 345 Spl.C. No.15/2014 three-Judge Bench on 18-4- 2022 in Jagjeet Singh v. Ashish Mishra [Jagjeet Singh v. Ashish Mishra, (2022) 9 SCC 321 : 2022 SCC OnLine SC 453] albeit, on the issue of bail. It emphasised the victim's right to be heard. What is relevant for us to note is that the victim being the de facto sufferer of a crime had no participation in the adjudicatory process. The current ethos of criminal justice dispensation to prevent and punish crime had surreptitiously turned its back on the victim. No doubt in the present case at every stage the victim has been heard and the present application is also by the victim. The near and dear ones whether as guardians or legal heirs are required to be treated as victims. It was, thus, observed in SCC para 22 as under:
"22. It cannot be gainsaid that the right of a victim under the amended CrPC are substantive, enforceable, and are another facet of human rights. The victim's right, therefore, cannot be 346 Spl.C. No.15/2014 termed or construed restrictively like a brutum fulmen. We reiterate that these rights are totally independent, incomparable, and are not accessory or auxiliary to those of the State under the CrPC. The presence of "State" in the proceedings, therefore, does not tantamount to according a hearing to a "victim" of the crime."
31. In the similar vein in Criminal Appeal No. 579 of 2022 titled State of Rajasthan v. Banwari Lal [State of Rajasthan v. Banwari Lal, (2022) 12 SCC 166 : 2022 SCC OnLine SC 428] , this Court has again frowned upon the tendency of courts to reduce the sentence to the period already undergone.
An earlier judgment of this Court in Soman v. State of Kerala [Soman v. State of Kerala, (2013) 11 SCC 382 :
(2012) 4 SCC (Cri) 1] was referred to, more specifically para 27, which reads as under : (Soman case [Soman v. State of Kerala, (2013) 11 SCC 382 :
(2012) 4 SCC (Cri) 1] , SCC p.
393) 347 Spl.C. No.15/2014 "27.1. Courts ought to base sentencing decisions on various different rationales
-- most prominent amongst which would be proportionality and deterrence.
27.2. The question of consequences of criminal action can be relevant from both a proportionality and deterrence standpoint.
27.3. Insofar as proportionality is concerned, the sentence must be commensurate with the seriousness or gravity of the offence.
27.4. One of the factors relevant for judging seriousness of the offence is the consequences resulting from it.
27.5. Unintended consequences/harm may still be properly attributed to the offender if they were reasonably foreseeable. In case of illicit and underground manufacture of liquor, the chances of toxicity are so high that not only its manufacturer but 348 Spl.C. No.15/2014 the distributor and the retail vendor would know its likely risks to the consumer.
Hence, even though any harm to the consumer might not be directly intended, some aggravated culpability must attach if the consumer suffers some grievous hurt or dies as result of consuming the spurious liquor."
37. In a nutshell, the aspects of sentencing and victimology are reflected in the following ancient wisdom:
It means : The person dispensing justice as per Dharmashastra should prescribe a penance appropriate to the age, the time and strength of the sinner, the penance being such that he may not lose his life and yet he may be purified. A penance causing distress should not be prescribed.
349 Spl.C. No.15/2014
11. The court has also taken into account of the submissions made by the learned counsel for accused that the accused persons are suffering from various health ailments and also they were appearing before the court for a long period of time. It is their contention that since they were made to under the sword of punishment for more than a decade, a lenient view may be taken. However, I have relied upon the judgment of the Hon'ble Apex Court with respect to considering the fact of imposing lesser sentence on the ground of long pendency of the matter. In this regard, the judgment of the Hon'ble Apex Court reported in (2003) 8 SCC 13 (State of M.P. Vs. Ghanshyam Singh) wherein it is held as follows:
10. The crucial question which needs to be decided is the proper sentence and merely because of lapse of time, whether the accused is to be waived from undergoing it. It is to be noted that the sentences prescribed for offences relatable to Section 304 Part I are imprisonment for life or up to a period of 10 350 Spl.C. No.15/2014 years. It is true that no minimum sentence has been prescribed. The sentences can be compared with prescription of similar sentences and other provisions like Section 326 IPC and Section 307 IPC when hurt is caused. Section 304 Part I is a species of homicidal death.
It is statutorily described as culpable homicide though not amounting to murder as defined under IPC. Taking note of the purpose for which a sentence is imposed, it cannot be laid down as a rule of universal application that a long passage of time in all cases would justify minimal sentence. Long pendency of a matter by itself could not justify lesser sentence.
11. The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a cross-cultural conflict where living law must find an answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out 351 Spl.C. No.15/2014 criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence.
Therefore, law as a cornerstone of the edifice of "order" should meet the challenges confronting the society. Friedman in his Law in Changing Society stated that, "State of criminal law continues to be -- as it should be -- a decisive reflection of social consciousness of society." Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. By deft modulation sentencing process has to be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. For instance, a murder committed due to deep-
seated mutual and personal rivalry may not call for penalty of death. But an organised crime or mass 352 Spl.C. No.15/2014 murder of innocent people would call for imposition of death sentence as deterrence.
In Mahesh v. State of M.P. [(1987) 3 SCC 80 : 1987 SCC (Cri) 379 : (1987) 2 SCR 710] this Court while refusing to reduce the death sentence observed thus : (SCC p. 82, para 6) It will be a mockery of justice to permit the accused to escape the extreme penalty of law when faced with such evidence and such cruel acts.
To give the lesser punishment for the accused would be to render the justicing system of the country suspect. The common man will lose faith in courts. In such cases, he understands and appreciates the language of deterrence more than the reformative jargon.
12. Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc. This position was 353 Spl.C. No.15/2014 illuminatingly stated by this Court in Sevaka Perumal v.
State of T.N. [(1991) 3 SCC 471 : 1991 SCC (Cri) 724 : AIR 1991 SC 1463]
13. Criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion to the Judge in arriving at a sentence in each case, presumably to permit sentences that reflect more subtle considerations of culpability that are raised by the special facts of each case.
Judges, in essence, affirm that punishment ought always to fit the crime; yet in practice sentences are determined largely by other considerations. Sometimes it is the correctional needs of the perpetrator that are offered to justify a sentence, sometimes the desirability of keeping him out of circulation, and sometimes even the tragic results of his crime. Inevitably, these considerations cause a departure from just deserts as the basis of punishment and create cases of apparent injustice that are serious and widespread.
14. Proportion between crime and punishment is a goal respected in principle, and in 354 Spl.C. No.15/2014 spite of errant notions, it remains a strong influence in the determination of sentences. The practice of punishing all serious crimes with equal severity is now unknown in civilized societies, but such a radical departure from the principle of proportionality has disappeared from the law only in recent times. Even now for a single grave infraction drastic sentences are imposed.
Anything less than a penalty of greatest severity for any serious crime is thought then to be a measure of toleration that is unwarranted and unwise. But in fact, quite apart from those considerations that make punishment unjustifiable when it is out of proportion to the crime, uniformly disproportionate punishment has some very undesirable practical consequences.
12. In the aforesaid judgment the Hon'ble Apex Court has clearly held that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society do not endure such 355 Spl.C. No.15/2014 threats. Once again at the cost of repetition, it is to be recalled that the above case was a classic case wherein blatant violation of law and procedures were made by mighty and powerful people and only due to the kind intervention of the Hon'ble Apex Court the investigation was ordered and the magnanimity of the economic crime came to light. It would not be out of context to mention about the report furnished by the then Hon'ble Lokayukta in this regard wherein he had opined that the magnanimity of the crime committed was a serious threat to nations economic independence. At any stretch of imagination a minute deviation towards the integrity and economic independence of the Nation cannot be tolerated and it has to be severely punished so as to cause a deterrent. I am also fortified in this regard by the judgment rendered by the Hon'ble Apex Court in (2006) 10 SCC 673 (Siddarama and others Vs. State of Karnataka) wherein it is held as follows:- 356 Spl.C. No.15/2014
9. Law regulates social interests, arbitrates conflicting claims and demands. Undoubtedly, there is a cross-cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Friedman in his Law in Changing Society stated that, "State of criminal law continues to be -- as it should be--a decisive reflection of social consciousness of society".
Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be.
The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, and all other attending circumstances are relevant facts which would enter into the area of consideration.
357 Spl.C. No.15/2014
10. Undue sympathy to impose inadequate sentence would do more harm to the justice system, to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed, etc. This position was illuminatingly stated by this Court in Sevaka Perumal v.
State of T.N. [(1991) 3 SCC 471 : 1991 SCC (Cri) 724 : AIR 1991 SC 1463]
12. Proportion between crime and punishment is a goal respected in principle, and in spite of errant notions, it remains a strong influence in the determination of sentences. The practice of punishing all serious crimes with equal severity is now unknown in civilised societies, but such a radical departure from the principle of proportionality has disappeared from the law only in recent times. Even now for a single grave infraction drastic sentences are imposed.
Anything less than a penalty of greatest severity for any serious crime is thought then 358 Spl.C. No.15/2014 to be a measure of toleration that is unwarranted and unwise. But in fact, quite apart from those considerations that make punishment unjustifiable when it is out of proportion to the crime, uniformly disproportionate punishment has some very undesirable practical consequences.
13. After giving due consideration to the facts and circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the court. Such act of balancing is indeed a difficult task. It has been very aptly indicated in Dennis Councle McGautha v.
State of California [402 US 183 : 28 L Ed 2d 711 (1971)] that no formula of a foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. In the absence of any foolproof formula which may provide 359 Spl.C. No.15/2014 any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of the gravity of crime, the discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably distinguished.
14. The object should be to protect the society and to deter the criminal in achieving the avowed object to law by imposing appropriate sentence. It is expected that the courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be.
15. Imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime e.g. where it relates to offences relating to narcotic drugs or psychotropic substances which have great impact not only on the health fabric but also on the social order and public interest, cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing meagre sentences 360 Spl.C. No.15/2014 or taking too sympathetic view merely on account of lapse of time or personal inconveniences in respect of such offences will be resultwise counterproductive in the long run and against societal interest which needs to be cared for and strengthened by a string of deterrence inbuilt in the sentencing system.
13. By relying upon the aforesaid authorities the Court is required to prepare a chart consisting of aggravating and mitigating circumstances. The following aggravating factors can be noticed in the instant case.
14. Aggravating Factors:
1. The accused No.1 Mahesh J.Biliye being the Port Conservator and accused Satish Krishna Sail being the elected representative of the people are required uphold the faith and public trust and accused No.1 has failed to discharge his 361 Spl.C. No.15/2014 duty and has entered into a criminal conspiracy with other accused persons to cheat and defraud the Government exchequer.
2. The accused No.1 who was entrusted with the domain of the public property had failed in discharge of his public duty and due to his act, the other accused persons had got themselves enriched unlawfully.
3. The accused persons in furtherance of criminal conspiracy had exported minerals belonging to the State which is the property of public at large and the act of exporting the same, causes huge loss to the people at large.
4. The act of accused persons erodes the faith and belief of general public in the financial transaction.362 Spl.C. No.15/2014
5. If any lenient view is to be taken, the act would further erode the faith and may lead to draw an inference that the economic offences would be dealt liberally.
15. Mitigating Factors:
a. The accused persons are not habitual offenders.
b. The accused persons could not have any criminal antecedents.
c. The accused persons had to take care of their family and they are suffering from various ailments.
d. The accused persons are having deep roots in the society and had enjoyed good reputation in the society.
16. By looking into the aforesaid aggravating and mitigating factors and also on consideration of the materials which has been produced before the Court, it indicates that the act of accused persons could be construed as a economic offence which leads to economy of the nation. Further, the maxim 363 Spl.C. No.15/2014 "Nullum crimen sine lege" which means, the principle of legality in the rule of construing criminal statute is to be in favour of citizens and also the approach towards the social welfare. The important aspect of socio-economic offence is to be emphasized with the gravity of the harm caused to the society and also the nature of the offences themselves. In many instances, the gravity of the offence cannot be easily deciphered and same requires to be considered in a manner which would indicate the mode of execution in secrecy by shrewd and snollygoster person with sophisticated means. Time and again, it has been held by the Hon'ble Apex Court that the cry of the victim is also to be appreciated at the time of imposing punishment. In the instant case, the society at large is to be considered as the main victim due to the fraudulent act of the accused person. I have bestowed my anxious reading to the judgment of the Hon'ble Apex Court reported in (2012) SCC 384 (State 364 Spl.C. No.15/2014 of Maharashtra through CBI Vs. Balakrishna Dattatreya Kumbar) wherein, Hon'ble Apex Court has held as follows:
"The aforesaid order is
therefore, certainly not
sustainable in law if examined in light of the aforementioned judgments of this Court.
Corruption is not only a punishable offence but also undermines human rights, indirectly violating them, and systematic corruption, is a human rights' violation in itself, as it leads to systematic economic crimes. Thus, in the aforesaid backdrop, the High Court should not have passed the said order of suspension of sentence in a case involving corruption. It was certainly not the case where damage if done, could not be undone as the employee/respondent if ultimately succeeds, could claim all consequential benefits. The submission made on behalf of the respondent, that this Court should not interfere with the impugned order at such a belated stage, has no merit for the reason that this Court, vide order dated 9.7.2009 has already stayed the operation of the said impugned order."
365 Spl.C. No.15/2014
17. When the said principles are applied to the facts of the case on hand, it indicates that accused persons entered into a criminal conspiracy which is punishable under Section 120-B of IPC to cheat and defraud the State. In the instant case, it is noticed that all the accused persons had conspired with each other and they had also filed writ petitions before the Hon'ble High Court of Karnataka and in many instances, they had also obtained interim order wherein the Hon'ble High Court by its kind order had directed for release of seized iron ore subject to producing valid documents. However, in many cases prior to obtaining of interim order, the export was being carried out of the seized materials and in some cases even though permission was not accorded by the Forest Authorities, without adhering to the rule of law, export was being made in cavalier manner, with serious disdain towards the rule of law. In my humble opinion, filing false petitions and making a false claim 366 Spl.C. No.15/2014 before the Superior Constitutional authorities would only add towards their unacceptable conduct. It is to be kept in mind of the apt quote of Lord Denning wherein it is stated as "Be ye never so high, the law is above you".
18. Though the accused persons at this juncture claim to be suffering from various ailments, the same will not be a mitigating factor. In this regard, the court has relied upon the judgment of Hon'ble Apex Court reported in AIR 1996 SC 361 (A. Wati Ao vs The State Of Manipur), wherein it has been held as follows:
"This takes us to the question of the sentence. A perusal of the trial court's judgment shows that the sentence of imprisonment till rising of the court was awarded because of : (1) the appellant being a senior IAS Officer and holding of different high posts, which showed that he is a very respectable person; (2) the appellant having a number of dependents; (3) the certainty of 367 Spl.C. No.15/2014 appellant's losing his job and requiring him to earn a living for himself and his family members; (4) the present being first offence committed by him; and (5) the spectre of the incident hanging on his head for about half a decade.
According to us, none of these factors (except the last, to some extent) make out a case for awarding sentence less than the minimum prescribed by the aforesaid Act - the same being imprisonment for one year. The fact that the appellant is a senior IAS Officer really requires a serious view of the matter to be taken, instead of soft dealing. The fact that he has a number of dependents and is going to lose his job are irrelevant considerations inasmuch as in almost every case a person found guilty would have dependents and if he be a public servant, he would lose his job. The present being the first offence is also an irrelevant consideration.
Though the delay has some relevance, but as in cases of the present nature, investigation itself takes time and then the trial is prolonged, because of the type of evidence to be adduced and number of the witnesses to be examined, we do not think that the fact of delay of about 368 Spl.C. No.15/2014 five years could have been a ground to award the sentence of imprisonment till rising of the court, which really makes a mockery of the whole exercise. We, however, think that the delay does require some reduction from the minimum prescribed; and on the facts of this case, ends of justice would be met, according to us, if at this length of time, pursuant to notice of enhancement issued by this Court, a sentence of imprisonment for six months is awarded."
19. In the above said judgment, Hon'ble Apex Court has held that the conviction of IAS Officer charged with misuse of office could not be let of leniently since it would give an wrong message to the society at large. Even in the instant case, the act of the accused persons are to be viewed seriously. Under the circumstances, the act of misconduct against accused No.1 would be viewed seriously. By considering the said aspect, it is crystal clear that the court cannot take lenient view towards the act committed by accused No.1 and it has to be strictly 369 Spl.C. No.15/2014 viewed as contemplated under Section 13(1)(d) R/w. Sec.13(2) of the Prevention of Corruption Act. The act of other accused persons in a way squarely makes an attempt to bleed the economic condition of the country and also the act of showing disregard to the orders of the Hon'ble High Court and filing false vexatious petitions under false premises would only aggravate the factors against them. Last but not the lease the court has also taken in to account of the submissions made by the learned counsel for accused No.1 wherein it has requested the court that a sympathetic view may be against him for the reason that he is only a retired employee, who cannot be equated in par with the might of the companies who have been involved in the offence. Be that as it may, but when the allegation of conspiracy is leveled against all the accused persons, there cannot be any room to segregate and fix the quantum individually. Hence, the court had accepted the loss which shown 370 Spl.C. No.15/2014 by the Investigating Officer in the Charge sheet. Before parting it would be appropriate to quote the apt wordings of the Center of Governance, which reminds ourselves about what the Mahabharath says:-
"Dharmo Rakshati Rakshitaha"
which means the law and morality sustain the world. Accordingly, I proceed to pass the following;
ORDER
The accused No.1 Sri.Mahesh
J.Biliye, accused No.2 M/s.Ashapura Minechem Pvt Ltd., accused No.3 Sri Chethan Shah, accused No.4 M/s.Sri Mallikarjuna Shipping Pvt Ltd., accused No.5 Sri Satish Krishna Sail are hereby convicted for the offence under Section 120-B of IPC., and accused No.1, accused No.3 and 5 are hereby sentenced to undergo Rigorous Imprisonment for a period of FIVE years and imposed with a fine of Rs.20,000/- each (Rupees Twenty Thousand only) and in default of payment of fine, they shall undergo a Simple Imprisonment for a period of ONE month. (Accused No.2 and Accused No.4 are companies which is legal entity and hence, 371 Spl.C. No.15/2014 the representative cannot be sentenced for corporeal punishment) Further, accused No.2 and accused No.4 company are hereby sentenced to pay a fine of Rs.20,000/- each.
The accused No.1 Sri.Mahesh J.Biliye, accused No.2 M/s.Ashapura
Minechem Pvt Ltd., accused No.3 Sri Chethan Shah, accused No.4 M/s.Sri Mallikarjuna Shipping Pvt Ltd., accused No.5 Sri Satish Krishna Sail are hereby convicted for the offence punishable under Section 420 of IPC and accused No.1, 3 and 5 are sentenced to undergo a Rigorous Imprisonment for a period of Seven years and imposed with a fine of Rs.9,06,00,000/- (Rupees Nine Crores Six Lakhs Only) to be paid jointly with accused No.2 and 4 Companies and in default of payment of fine, they shall undergo a Simple Imprisonment for a period of ONE year. (Accused No.2 and Accused No.4 are companies which is legal entity and hence, the representative cannot be sentenced for corporeal punishment). However, accused No.2 and 372 Spl.C. No.15/2014 4 Company shall be liable to pay fine jointly and severally with other accused persons for the aforesaid offence.
The accused No.1 Sri. Mahesh J.Biliye is hereby convicted for the offence punishable under Section 13(1)(c) & (d) R/w. Sec.13(2) of Prevention of Corruption Act and sentenced to undergo Rigorous Imprisonment for a period of THREE years and with a fine of Rs.50,000/- (Rupees Fifty Thousand only) and in default of payment of fine, he shall undergo Simple Imprisonment for a period of ONE year.
The accused No.1 Mahesh J.Biliye is hereby convicted for the offence punishable under Section 409 of IPC and sentenced to undergo Rigorous Imprisonment for a period of SEVEN years and fine of Rs.50,000/- each (Rupees Fifty Thousand only) and in default of payment of fine, he is sentenced to undergo Simple Imprisonment for a period of SIX months. 373 Spl.C. No.15/2014 The accused No.1 Sri.Mahesh J.Biliye, accused No.2 M/s.Ashapura Minechem Pvt Ltd., accused No.3 Sri Chethan Shah, accused No.4 M/s.Sri Mallikarjuna Shipping Pvt Ltd., accused No.5 Sri Satish Krishna Sail are hereby convicted for the offence punishable under Section 379 r/w 120B of IPC and accused No.1,3 and 5 are sentenced to undergo a Rigorous Imprisonment for a period of Three years and imposed with a fine of Rs.20,000/- each (Rupees Twenty Thousand Only) and in default of payment of fine, they shall undergo a Simple Imprisonment for a period of ONE year. (Accused No.2 and Accused No.4 are companies which is legal entity and hence, the representative cannot be sentenced for corporeal punishment). However, accused No.2 and 4 Company shall be liable to pay fine above mentioned sum of Rs.20,000/- each.
The sentences ordered shall run concurrently and accused Nos.1,3 and 5 shall be entitled for the period of set off as contemplated under Section 428 of Cr.P.C., 374 Spl.C. No.15/2014 for the period of detention they have already undergone, if any as Under Trial Prisoners in the above case.
Acting under Section 357(A) of Cr.P.C., suitable compensation requires to be ordered to the victim i.e., the State and hence, the entire amount shall be ordered to be forfeited to the State.
Office is hereby directed to furnish the copy of the Judgments to the accused Nos.1 to 5 forthwith.
The bail bonds and surety bonds executed by the accused Nos.1 to 5 shall stand cancelled.
(Dictated to Stenographer Grade-I, transcribed by him, revised and corrected by me and then pronounced in open court on 26th day of October, 2024) (SANTHOSH GAJANAN BHAT) LXXXI Addl. City Civil & Sessions Judge, Bengaluru City (CCH-82) (Special Court exclusively to deal with criminal cases related to former and elected MPs/ MLAs in the State of Karnataka) 375 Spl.C. No.15/2014 ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PROSECUTION:-
PW1 Vinay Doddamma Panth PW2 Ekanath Narayan Jambavalikar PW3 Ganapathi Nagappa Naik PW4 Mohan Sukru Naik PW5 Parvathi.N. PW6 Deepak A.Waigankar PW7 Mahesh Narayan Gaonkar PW8 Ashok Ramachandra Naik PW9 Prakash Soma Naik PW10 R.Anand PW11 Jagadish Thandel PW12 Vinod Kumar Pandey PW13 Gouse Ali PW14 Vinayak R.Naik PW15 N.Y.Sagar PW16 Nagesh M.Gaonkar PW17 Suresh D.Shetty PW18 Yogesh Anand Shetty PW19 Nagesh Bommaiah Gunaga PW20 Anand L.Idurkar PW21 M.D.Thodurkar
PW22 Krishna Narayan Kelaskar PW23 Vishal Gopal Harikant PW24 Sanjay Vittal Naik PW25 Venkatesh H.R. PW26 Gokul.R PW27 Yogesh S.Pal PW28 Arun Atmaram Pawar PW29 Siddalinga Swamy Viraktamath PW30 M.Ganesh PW31 B.S.Muddumahadevaiah PW32 Shivanand H.Chalavadi PW33 Ravishankar PW34 Santhosh Menon 376 Spl.C. No.15/2014 PW35 Takath Singh PW36 Abhay A. Kocharekar PW37 Ravi.K PW38 Rajashekar.T. PW39 Biswajit List of Exhibits marked on behalf of prosecution:-
Ex.P.1 C/c of Mahazar dated 15.03.2010 Ex P.1(a) Signature of PW-1 Ex.P.2 Witness statement of PW.1 Ex.P.3 Panchanama dated 03.07.2010 Ex.P.4 Mahazar dtd.15.03.2010 Ex P.4(a) Signature of PW-3 Ex.P.5 C/c of FIR Ex.P.6 Letter dtd.18.03.2010 Ex.P.7 Letter endorsement dt 20.03.2010.
Ex.P.8 C/c of Mahazar dated 20.03.2010
Ex.P.9 C/c of Mahazar dated 26.03.2010
Ex.P.9(a) Signature
Ex.P.10 Mahazar dated 29.03.2010
Ex.P.11 Mahazar dated 07.08.2010
Ex.P.12 Witness statement of PW.4
Ex.P.13 True copy lease agreement
dtd.03.04.2006
Ex.P.14 True copy lease agreement dated
06.03.2006
Ex.P.15 True copy lease agreement dated
377 Spl.C. No.15/2014
03.09.2009
Ex.P.16 Lease agreement dated 12.05.2010
Ex.P.17 Letter dated 24.03.2010
Ex.P.18 Letter dated 26.04.2010
Ex.P.19- Letter dated 28.04.2010
Ex.P.20 Annexure 'A' (16 pages) letter
dtd.15.10.2012
Ex.P.21 (73 sheets) Annexure 'B' seizure of Iron
ore
Ex.P.22 List of shipping bills period 20.03.2010 to
31.05.2010
Ex.P.23 Covering letter as Annexure 'E'
Ex.P.24 Seizure memo dtd.26.03.2003
Ex.P.25 Proceedings dtd.13.04.2010 with all
enclosures
Ex.P.25(a) Letter dt 30.03.2010 Ex P.25(b) Letter dt 03.03.2010 Ex P.25(c) Letter dt 03.03.2010 Ex.P.26 Seizure memo dtd.02.04.2013 Ex.P.27 C/c of notification dtd.26.03.2003 Ex.P.28 Departmental order dtd.04.04.2003 Ex.P.29 Departmental order dtd.29.05.2003 Ex.P.30 C/c of letter dtd.20.03.2010 Ex.P.31 C/c of letter to A1 from Forest Dept., 378 Spl.C. No.15/2014 Ex.P.32 Seizure memo (Certified copy) Ex.P.33 C/c of letter dtd.15.04.2010 Ex.P.34 C/c of letter dtd.16.04.2010 Ex P.34(A) Letter dt 16.04.2010 issued by M/s SMSPL Ex P-34(B) Letter dtd.15.04.2010 Ex.P.35 Letter dtd.03.05.2010 Ex.P.36 Letter dtd.06.05.2010 Ex.P.37 Letter dated 06.05.2010 Ex.P.38 Shipping bills Salqaocar minining Ltd. Ex.P.39 Letter to Port Conservator, department of Water Transport Ex.P.40 Letter to Port Conservator from Forest Range Officer dt 28.03.2010 Ex.P.41 Letter dtd.24.03.2010 to DCF Karwar Ex.P.42 Letter dtd.24.03.2010 to M/s Adani Ent, etc Ex.P.43 Letter dtd.25.03.2010 to Range Forest Officer Ex.P.44 Letter dtd.29.03.2010 Ex.P.45 Letter dtd.30.03.2010 to Superintendent of Customs Ex.P.46 Letter dtd.29.03.2010 to M/s Adani Ent., etc., Ex.P.47 Letter by Adani Ent.,dtd.07.06.2010 379 Spl.C. No.15/2014 Ex.P.48 Letter by Adani Ent.,dtd.11.06.2010 Ex.P.49 Letter by Rajmahal Silks dtd.15.06.2010 Ex.P.50 Letter by Mallikarjun Shipping dtd.11.06.2010 Ex.P.51 Letter by Salgaocav mining dtd.11.06.2010 Ex.P.52 Attendance from 2006 to 2011 Ex.P.53 Shipping bills dtd.22.04.2010 Ex.P.54 Shipping bills dtd.14.05.2010 Ex.P.55 Export application dtd.21.06.2010 Ex.P.56 Certificate of Port clearance dtd.
24.04.2010 Ex.P.57 Certificate of Port clearance dtd.
26.05.2010 Ex P.58 Letter dated 29/3/2010 Ex P.59 Letter dated 29/3/2010 issued by Superintendent of Customs to Port Conservator.
Ex P.60 Letter issued by Superintendent of Customs to M/s Aadhani Enterprises dt 25.03.2010 Ex P.61 Letter dated 27/3/10 issued by Port Officer, Karwar Ex P.62 Certified copy of letter dated 21/6/2010 to Assistant Conservator of Forest 380 Spl.C. No.15/2014 Ex P.63 Shipping bill No.170/2010 dt 25/5/2010 Ex P.64 Duplicate copy of the shipping bill in 144/2010 dt 22/4/2010 Ex P.65 Boat Notes Ex P.66 Boat barges pertaining to shipping bill No.165/2010.
Ex P.67 Shipping bills 170/10 3 in numbers Ex P.68 Letter to CBI authorities dt 3/8/13 Ex P.68(A) C/c of Ex P-68 Ex P-68(a) Signature of PW-21 Ex P.69 Letter dt 29/3/10 in LND/CR-36-2009-10 Ex P.70 Covering letter letter dated 30.10.2013 along with the statements.
Ex P.71 Letter pertaining to stocks dt 28.11.2011 Ex P.71(a) Signature of PW-22 Ex P.72 Letter dt 28/12/11 inward details from 21/3/2010 to 31/5/2010 Ex P.72(A) Notarized copy of Ex P-72. Ex P.73 Details of export of Iron ore along with quantity period 21/3/10 to 31/5/10 letter dt 28/12/11 Ex P.74 Certified copy of the contract Ex P.75 Certified copy of appointment letter to M/s SMSPL Ex P.76 Certified copy of authorization letter dt 381 Spl.C. No.15/2014 2/8/10 Ex P.77 Board Resolutions dt 30/1/04 Ex P.78 Cargo details of Ashapura Mines and its extract Ex P.79 Certified copy of letter dt 11/6/2010 Ex P.80 Letter dt 26/4/10 received by PW23 to M/s SMSPL directing not to load the stack lying in the Port premises Ex P.81 Letter dt 29/4/10 to Port Officer, Karwar Ex P.82 Letter dt 25/3/10 issued by Superintendent of Customs Ex P.83 Correspondence made by the Port Conservator which was in continuation of earlier letter & the present dt 3/4/10 Ex P.83(a) Letter dt 15/4/10 information with respect to 11 stack of customer Ex P-84 Invoices to M/s SMSPL & also to M/s Ashapura Minechem Ltd., & M/s SB Logistics.
Ex P.85 Letter dt 18/9/13 consist of PW25 Ex P.85(a) Signature Ex P.86 Details of customers & e-mail addresses etc., dated 17.11.2012 Ex P.87 Letter dt 11/5/13 with respect to party wise cargo & seized 382 Spl.C. No.15/2014 Ex P.88 Letter dt 21/12/13 with respect to furnishing service invoice Ex P.89 Letter dt 3/7/10 to CID authorities by PW-25 collectively Ex P.90 Document handed over to CID authorities dt 16/11/10 Ex P.91 Letter dt 14/8/13 regarding to day wise cargo arrival & loading from the beginning of season Ex P.92 Letter dt 14/5/10 by M/s SMSPL Ex P.93 Attested copy M/s Ashapura Minechem Ltd 3/2/10 Ex P.94 Contract M/s Ashapura Minechem Ltd., and it consist of PW-25 signature Ex P.95 Article of association & memorandum of association & other documents of PW25 company Ex P.96 Certified copy of FIR No.189 dt 8/6/10 Ankola Uttarkannada Ex P.96(A) C/c of Ex P-96 Ex P.97 Complaint copy 7/6/10 Ex P.98 Complaint copy 8/6/10 Ex P.99 Letter dt 6/4/10 Ex P.100 Certified copy of WP 14552 Ex P.100(A) C/c of WP 14552 383 Spl.C. No.15/2014 Ex P.101 Seizure memo dt 08.07.2013 Ex P.102 Ledger account pertaining to M/s SMSPL collectively Ex P.103 Cargo Shipment Ex P.103(A) Portion of statement made in Ex P-103 Ex P.103(B) -//-
Ex P.104 Letter dated 26.04.2010 Ex P.105 Seizure memo dated 27.08.2013. Ex P.106 Letter to the Port Officer Karwar on 2/6/10 Ex P.107 Proceedings of Government Ex P.107(a) Signature of PW-29 Ex P.108 Job Chart Ex P.109 PF 92/10, Mahazar dt.10/8/10 Ex P.110 Notice dt 29/6/10 to M/s AML Ex P.110(a) Signature of PW-29 Ex P.111 Letter dt.15/4/10 to PW31 Ex P.112 Letter dt 22/9/10 Ex P.113 Letter dt 9/12/10 to M/s Ashapura Minechem Ltd., Ex P.114 Accounts extracts Ex P.115 Letter dt 12/1/11 Ex P.116 Reminder dt 11/1/11 & 19/1/11 & 8/2/11 to furnish details 384 Spl.C. No.15/2014 Ex P.117 Letter dt 3/2/11 Ex P.118 Letter dt 1/3/11 to Registrar of Companies Gujarath to furnish details pertaining to M/s Adani Enterprises. Ex P.119 Furtherance of the same necessary details Ex P.120 Letter dt 29/11/10 reminder to the Manager of M/s Ashapura Minechem Ex P.121 Letter dt 1/12/10 details from M/s Ashapura Minechme Ltd., Ex P.122 Letter dt 9/2/11 pertaining to the company from the Registrar Ex P.123 Letter dt 20/10/10 to the DD of Department of Mines & Geology Ex P.124 DMG Permit, Forest pass pertaining to the Company Ex P.124(A) C/c of Ex P-124 Ex P.124(B) Certified copy of permit Ex P.125 Certified copy of documents pertaining to the shipping bills Ex P.126 Import export code & other documents collectively Ex P.127 Board Resolution dt 1/4/10 authorizing PW34 to represent Ex P.128 Appointment letter Ex P.129 Appointment letter of Mr. Vaize Ahmed 385 Spl.C. No.15/2014 Ex P.130 Attested copy of the purchase order pertaining to M/s Vaishnavi Minerals Ex P.131 6 invoices Ex P.132 Invoices Ex P.133 E-mail communication Ex P.134 Applications & other documents U/sec.455, 457 of IPC Ex P.135 Forest permit & DMG trip sheet Ex P.136 Account statement & proof of RTGS Ex P.137 Mahazar dt 30/7/12 Ex P.137(A) Certified copy of the mahazar dt 30/7/12 Ex P.138 Covering letter dt 30/4/10 Ex P.139 Mahazar 2/6/10 Ex P.140 Document dt 27/5/10 furnished by Forest authorities Ex P.141 Seizure memo dated 17.08.2013 Ex P.142 Axis Bank account opening firm Ex P.143 Mahazar dt 10/8/10 Ex P.144 FIR Ex P.145 W.P.No.562/09 Ex P.146 Central Empowered Committee Report dt 27/4/12 Ex P.147 Department Order Ex P.148 Letter dt 24/4/10 386 Spl.C. No.15/2014 Ex P.149 Letter dt 26/4/10 Ex P.150 Letter dt 26/4/10 Ex P.151 Entire records, FIR, Chargesheet, PF, Mahazar Ex P.152 Seizure memo dt 31.05.2013 Ex P.153 Letter to Inspector of Police, CBI, Bengaluru dt 5/10/12 Ex P.154 Seizure memo dt 8/8/13 Ex P.155 Letter to Addl. SP, CBI, Bengaluru dt 7/8/13 Ex P-156 Letter dt 3/10/12 Ex P-157 Marcons Shipping Pvt Ltd dt 15.11.2013 Ex P-158 Letter dt 30/3/10 Ex P-159 Production memo dt 06.09.2013 Ex P-160 M/s SMSPL letter dt 4/9/13 Ex P-161 M/s SMSPL letter dt 2/8/10 Ex P-162 M/s SMSPL Memorandum & Articles of Association Ex P-163 Letter dt 11/10/13 Ex P-164 Seizure memo dt 19/7/13 Ex P-165 Seizure memo dt 11/11/13 Ex P-166 Letter dt 11/11/13 Ex P-167 M/s SMSPL letter dt 12/1/11 Ex P-168 Seizure memo dt 26/6/13 387 Spl.C. No.15/2014 Ex P-169 M/s SMSPL Ltd., dt 25/5/2010 List of witnesses examined on behalf of accused; Nil List of documents got marked on behalf of accused:
Ex.D.1 Witness Statement of P.W.4 Material objects: Nil (SANTHOSH GAJANAN BHAT) LXXXI Addl. City Civil & Sessions Judge, Bengaluru City (CCH-82) (Special Court exclusively to deal with criminal cases related to former and elected MPs/ MLAs in the State of Karnataka) Digitally signed by SANTHOSHGAJANANABHAT SANTHOSHGAJANANABHAT Date: 2024.10.29 12:01:06 +0530