Orissa High Court
Manas Ranjan Mohanty vs State Of Orissa Vig on 26 October, 2015
Author: S.K. Sahoo
Bench: S. K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
BLAPL No. 3748 of 2015
Application under section 439 of the Code of Criminal Procedure,
1973.
---------------------
Manas Ranjan Mohanty ........ Petitioner
- Versus-
State of Orissa (Vig.) ........ Opp. Party
For Petitioner: - M/s. Ashok Kumar Parija
(Senior Advocate)
H.M.Dhal, S.P.Sarangi
P.K.Dash, P.P.Mohanty
For Opp.Party: - Mr. Saurjya Kanta Padhi
(Senior Advocate)
--------------------
P R E S E N T:-
THE HONOURABLE MR. JUSTICE S. K. SAHOO
........................................................................................................................
Date of Argument- 30.09.2015 Date of order- 26.10.2015
........................................................................................................................
S. K. SAHOO, J."Earth provides enough to satisfy every man's need, but not every man's greed."
- Mahatma Gandhi Richness of Odisha in mineral wealth is the divine blessings of Lord Jagannath who is the presiding deity of the 2 State. The geographical setup of the State has gifted its huge treasure of bauxite, chrome, iron ore, coal, manganese to several mineral based industries which in turn have provided employment not only to the people of this land of biodiversity but also to the people residing beyond its territory and thereby developing their economic standard. Unfortunately some greedy high ups have exploited the mother earth for years together by extracting minerals for their personal benefits and some other equally greedy and corrupt public officials have facilitated such exploitation. Finally the authorities awoke from the deep slumber of Kumbhakarna to find that there has been loss of thousand of crores rupees to government exchequer.
2. The petitioner Manas Ranjan Mohanty was the Deputy Director of Mines, Joda from 07.07.2003 to 04.07.2005 presently under suspension and he is in jail custody since 27.06.2015 in connection with Balasore Vigilance P.S. Case No. 30 dated 27.07.2013 which corresponds to V.G.R. Case No. 05 of 2013 pending in the Court of learned Special Judge (Vigilance), Keonjhar in which charge sheet has been submitted against the petitioner and others under sections 13(2) read with 13(1)(c)(d) of Prevention of Corruption Act, 1988 and sections 420, 409, 379, 468, 411 read with section 120-B of Indian Penal Code. 3
The petitioner has filed this application under section 439 Cr.P.C. for bail as his prayer for grant of bail was turned down by the learned Special Judge (Vigilance), Keonjhar vide order dated 04.07.2015.
3. On 27.07.2013 Shri M. Radhakrishna, DSP, Vigilance Cell, Cuttack lodged the First Information Report before the Superintendent of Police, Vigilance, Balasore Division, Balasore stating therein that the State Vigilance conducted an inquiry relating to illegal mining and taking of minerals by Shri Bijay Kishore Mohanty, Mining Lease Holder of Uliburu Iron Ore Mines and his power of attorney holder Shri Deepak Gupta, Director of M/s. Snehapusph Marketing Pvt. Ltd. in the mining lease area of Shri Jagdish Mishra, Uliburu Reserve Forest Area and Revenue land of village Uliburu, Barbil in the district of Keonjhar.
It is stated in the FIR that mining lease in village Uliburu was granted by the Government of Orissa, Mining and Geology Department on 07.01.1982 in favour of Shri B.K. Mohanty for a period of twenty years and the mining lease deed was executed on 13.12.1983 which was valid upto 12.12.2003 and surface right for mining operation was obtained from the Collector, Keonjhar on 20.02.1984. Shri B.K.Mohanty though filed an application on 18.11.1999 to the Government of Odisha, 4 Steel and Mines Department for surrendering his mining lease but on 14.05.2002 he submitted an application to withdraw his surrender application dated 18.11.1999 and to pass an order for reviving the lease. Again on 25.03.2003 Shri B.K. Mohanty submitted another application for surrendering the mining lease. He submitted an application for renewal of mining lease to the Government of Odisha, Steel and Mines Department through Collector, Keonjhar which was received in the office of the Collector, Keonjhar on 03.12.2003. Such an application for renewal was stated to be violating the provisions of Rule 24A (1) of the Mineral Concession Rules, 1960 (hereafter "1960 Rules") as the same was not applied as required at least twelve months before the date on which the lease was due to expire i.e. on 12.12.2003.
It is the further case of the prosecution as per the First Information Report that pending grant of renewal of mining lease, Shri B.K.Mohanty executed a registered power of attorney on 29.12.2003 for mining and trading minerals of his mines in favour of M/s. Snehapusph Marketing Pvt. Ltd. through its Director Shri Deepak Gupta who commenced the mining operation on 16.01.2004.
5
It is further stated in the FIR that the petitioner in his administrative report along with the performance report of Shri B.K.Mohanty mines submitted to the Collector, Keonjhar on 30.9.2004, though reported regarding violation of Rule 24A(1) of 1960 Rules but he in connivance with the other mining officials and others fraudulently and dishonestly allowed the lessee for mining operation since January 2004 and dispatch of iron ore even though no orders have been received from the Government regarding grant of renewal of mining lease.
It is further stated in the FIR that Shri Deepak Gupta, power of attorney holder of Shri B.K.Mohanty raised iron ore from 16.01.2004 to 16.09.2004 without the approved mining plan.
It is further stated in the FIR that another mining lease for iron ore was granted in favour of Shri Jagdish Mishra in Uliburu village on 25.08.1981 for a period of thirty years but due to want of forest clearance as well as surface right permission, the lease was not working from the date of its execution which was accordingly revoked by Government of Odisha on 10.01.1995. On 17.04.2004 Shri Jagdish Mishra executed a power of attorney duly registered in favour of M/s. Snehapusph Marketing Pvt. Ltd. represented through its Director Shri Deepak 6 Gupta to manage, arrange contractor, vehicles for effectually carrying out the mining operation and sale the minerals etc. On 25.09.2010 renewal of mining lease application was filed by Shri Deepak Gupta, power of attorney holder of Shri Jagdish Mishra and the same was rejected by the Department of Steel and Mines, Government of Odisha having no merit for consideration. Shri Jagdish Mishra fraudulently and dishonestly conducted illegal mining and stole iron ore through his power of attorney holder of Shri Deepak Gupta from his revoked mining lease area. The petitioner who was the then Deputy Director of Mines, Joda did not take any action even though he had knowledge about such illegal mining activities.
It is further stated in the FIR that during inquiry, it revealed from the villagers of Uliburu who were residing inside the mining lease area of Shri B.K.Mohanty that there was no mining operation of iron ore in that mining lease area but Shri Deepak Gupta was raising iron ore beyond the mining lease area of Shri B.K.Mohanty i.e. in the revoked mining lease area of Shri Jagdish Mishra and from Uliburu Reserve Forest Area adjacent to it.
It is further stated in the FIR that Shri Deepak Gupta filed monthly return showing production and dispatch of iron ore 7 during the period from 2003-04 to 2009-10 (till July 2009) from Uliburu Iron Ore Mines of Shri B.K.Mohanty though he illegally raised iron ore from the revoked mining lease area of Jagdish Mishra and Uliburu Reserve Forest as revealed during joint physical verification conducted by Vigilance and other officials from 01.07.2013 to 04.07.2013. Shri Deepak Gupta sold a quantity of 44,76,403.303 MT of iron ore which was illegally raised in the revoked mining lease area of Shri Jagdish Mishra and from Uliburu Reserve Forest to M/s. Deepak Steel and Power Ltd., Barbil during the period from 2004 to 2009 in which he was one of the Directors.
It is further stated in the First Information Report that the petitioner and other mining officials by abusing their official position and showing undue official favour to Shri B.K.Mohanty, Mining Lease Holder and Shri Jagdish Mishra, revoked Mining Lease Holder of Uliburu Iron Ore Mines and their power of attorney holder Shri Deepak Gupta and Shri Champak Gupta, Directors of M/s. Snehapusph Marketing Pvt. Ltd. fraudulently and dishonestly allowed Shri Deepak Gupta to cause illegal production of iron ore beyond the mining lease area of Shri B.K.Mohanty i.e. in the revoked mining lease area of Shri Jagdish Mishra and Uliburu Reserve Forest area and also illegally allowed 8 them for dispatch of ores falsely showing that the ore was raised from the mining lease area of Shri B.K.Mohanty and from non- forest area during the period from 2004 to 2009 and thereby caused huge loss to the Government exchequer. The quantity of iron ore illegally raised was of 47,48,826.000 MT whose prevalent market price was Rs. 839,67,11,748/- approximately.
4. During course of investigation, it was found that the petitioner as Deputy Director, Mines had recommended the entire area applied for renewal of mining lease in spite of the short comings in the renewal application as it was not made within due time as prescribed in sub-rule (1) of Rule 24A of 1960 Rules. Though in the performance report of the mines, the petitioner had mentioned that there was nil production and dispatch of iron ore from the year 1993 to 2003 and there was production of 1,38,400 MT and dispatch of 1,36,144.830 MT of iron ore during the year 2004 from Shri B.K.Mohanty mining lease area but there was no actual production in the aforesaid lease area. The investigation further revealed that the petitioner having clear knowledge that there was no extraction of iron ore from the granted mining lease area of Shri B.K.Mohanty which had expired since 12.12.2003, allowed production of the aforesaid quantity of iron ore by Shri Deepak Gupta beyond the 9 mining lease area of Shri B.K.Mohanty. It was further revealed during course of investigation that though it was the duty and responsibility of the petitioner as Dy. Director of Mines to see that all the mining and prospecting operations are carried out systematically in accordance with the 1960 Rules and also to take care and protect the minerals but the petitioner by abusing his official position dishonestly and fraudulently and in active connivance with the lease holders Shri B.K.Mohanty and Shri Jagdish Mishra as well as their power of attorney holder Shri Deepak Gupta allowed the production of iron ore illegally beyond the mining lease area of Shri B.K.Mohanty i.e. inside the lapsed mining lease area of Shri Jagdish Mishra and Uliburu Reserve Forest without condonation of delay, valid RML and without demarcation of mining lease area and S.R. area of Shri B.K.Mohanty and issued permission by creating false documents showing that the production of iron ore has been done within the mining lease area of Shri B.K.Mohanty over an area of 56.94 hectares. It was further revealed during investigation that Shri Deepak Gupta had actually raised a quantity of 65,25,741.438 MT of iron ore amounting to Rs. 1520,39,64,049.60 but he had shown 47,48,826 MT and thus suppressed the production of 17,76,915.438 MT during the period from 2004 to 2009. The 10 lessee and the power of attorney holder have cheated the government by non-payment of royalty to the tune of Rs.3,19,84,477.88 and thus the total loss comes to Rs.1523,59,48,527.48 paisa.
After submission of first charge sheet dated 31.12.2013 against the petitioner and twenty four others under sections 13(2) read with 13(l)(c)(d) of Prevention of Corruption Act, 1988 and sections 409, 379, 420, 468, 411 read with section 120-B of Indian Penal Code, the investigation was kept open under section 173 (8) Cr.P.C. to collect more evidence regarding the offences and to ascertain further details about the nature of criminal conspiracy between various accused persons and to determine the investment of the accused persons, if any, in the aforesaid conspiracy, as well as to identify other assets that might have been acquired by different accused persons out of the proceeds of the crime.
Subsequently after further investigation, second charge sheet was submitted on 24.06.2014 against four more accused persons under sections 13(2) read with 13(1)(c)(d) of Prevention of Corruption Act, 1988 and sections 420, 379, 411, 468, 409 read with section 120-B of Indian Penal Code.
11
5. The learned Special Judge, (Vigilance), Keonjhar while rejecting the bail application of the petitioner observed in its order dated 04.07.2015 that during the tenure of the petitioner as Deputy Director of Mines, Joda from 07.07.2003 to 04.07.2005, on receipt of the renewal mining lease application of Shri B.K.Mohanty in his office on 07.01.2004, he submitted his inquiry report and performance report to the Collector, Keonjhar on 30.09.2004 and in the technical report, he had reflected that there was production of iron ore of 1,38,400.830 MT and dispatch of 1,36,144 MT during the year 2004 and therefore the petitioner even before grant of RML and condonation of delay in submission of RML application filed by the lessee Shri B.K.Mohanty by the competent authority, allowed production by the lessee and his power of attorney holder from the month of January 2004, even though the lessee violated Rule 24A (1) of 1960 Rules in not filing the RML application prior to one year of the expiry of the lease, in connivance with the lessee and his power of attorney holder. The learned Court further observed that though the petitioner had received the report of Senior Inspector of Mines regarding non-existence of the boundary pillars of Shri B.K.Mohanty, Uliburu iron ore mines on 03.02.2004 but intentionally he did not act upon to demarcate 12 the area. Similarly though the petitioner received a complaint from Shri Jagdish Mishra regarding illegal mining in his mining lease area along with the common boundary of Shri B.K.Mohanty on 17.03.2004, without getting any demarcation report from Senior Surveyor of Mines, the petitioner had allowed the lessee and his power of attorney holder Shri Deepak Gupta to continue mining operation beyond the lease area. The learned Court further held that the petitioner having jurisdiction and dominion over Uliburu iron ore mines allowed illegal mining operation, in connivance with the lease holders and their power of attorney holder Shri Deepak Gupta, Haricharan Gupta and others and the mining and forest officials by abusing his official position, which resulted in production of iron ore illegally. The petitioner during his tenure had permitted production of a quantity of 35,500 MT of iron ore and removal and transportation of quantity of 3,74,600 MT of iron ore basing on false documents and certificates given by the Senior Inspector of Mines and thereby he had allowed pecuniary advantage to the lessees and their power of attorney holder. It is further observed by the learned Court that the petitioner dishonestly and fraudulently allowed the lease holders and their power of attorney holders to sell the illegally raised iron ore to M/s. Deepak Steel and Power Ltd. 13 which is a sister concern of the power of attorney holder Sri Deepak Gupta at a undervalued price and therefore due to the illegal activities of some greedy public servants and some unscrupulous entrepreneurs, the Government had sustained a loss of an amount of Rs. 1523,59,48,527.48 to its exchequer. The learned Court further observed that though vide orders dated 11.09.20014 and 22.09.2014, the petitioner was directed to personally appear before the trial Court but he did not appear in gross regard of those directions and therefore such conduct of the petitioner indicates that there was scope of his resorting to abscondance and avoiding the process of law in case of enlargement on bail.
6. Mr. Ashok Kumar Parija, Senior Advocate appearing on behalf of the petitioner emphatically contended that soon after lodging of the FIR on 27.07.2013, the Investigating Officer filed an application on 31.07.2013 before the learned Special Judge, (Vigilance), Keonjhar praying, inter alia, for a direction to issue non-bailable warrant of arrest against some of the accused persons including the petitioner which was allowed on the very same day. The petitioner challenged the order of issuance of NBWA before this Court in CRLREV No. 766 of 2013 and vide interim order dated 29.8.2013, this Court was pleased to pass an 14 order not to execute the NBWA till the next date which was being extended from time to time. It is the further contention of the learned counsel for the petitioner that the petitioner appeared before the Investigating Officer on 22.10.2013 and 04.12.2013 and he was interrogated by the Investigating Officer and he cooperated with the investigation. The learned counsel further submitted that the criminal revision application was disposed of on 05.03.1014 directing the petitioner to surrender before the learned trial Court within a period of two weeks. It is further urged that on the applications filed by the prosecution before the learned trial Court, vide order dated 26.07.2014, process was directed to be issued against the petitioner under section 82 Cr.P.C. requiring the petitioner to appear before the Court on 01.09.2014. It is further contended that the petitioner entered appearance through his counsel on 02.08.2014 and filed an application under section 205 Cr.P.C. to dispense with his personal appearance which was rejected vide order dated 22.08.2014 by the learned trial Judge.
Mr. Parija further harangued that the petitioner had neither committed any illegality nor any irregularity and he had not contravened the provisions of 1960 Rules while submitting the performance report for consideration to the Director of Mines 15 and the State Government in connection with the renewal application submitted by the mining lease holder. It was urged that since the petitioner was not the authority either to accept or reject the renewal application of the mining lease holder and since the same was within in the domain of the State Government, the petitioner cannot be saddled with any liability merely because he had forwarded the renewal application with his comments to the Collector of the District. It is the further contention of the learned counsel that 1960 Rules permits a renewal application to be made before the expiry of the period of lease. He further contends that in absence of any material to suggest that the petitioner had derived any pecuniary benefits or illegal gratification or that he was a party to the conspiracy, the provisions of Prevention of Corruption Act, 1988 and section 120-B of IPC cannot be invoked against the petitioner. Learned counsel for the petitioner further contended that since sub-rule (6) of Rule 24A of 1960 Rules provides that the lessee would be allowed to operate the lease till a decision is taken by the State Government on his renewal application; no fault can be found with the petitioner for such mining operation by the lessee. The leaned counsel further contended that though it is alleged that the occurrence took place in between 2003-04 to 2009-10, the 16 FIR was lodged against the petitioner and others on 27.07.2013 and therefore there was inordinate delay of about three years in lodging the FIR. The learned counsel further contended that the petitioner was having spinal cord problem for which he was hospitalized in Apollo Hospital, Chennai for about one and half months and he was advised to undertake physiotherapy in any specialized centre and because of his detention in judicial custody, he is not able to undertake physiotherapy which had aggravated his health condition. Winding up his submissions, learned counsel incisively implored that since there is no chance of absconding or tampering with the evidence and some of the co-accused persons have already been released either on anticipatory bail or on regular bail, the bail application of the petitioner should be favourably considered on the ground of parity and equity.
7. Learned Special counsel for Vigilance Department Mr. Saurjya Kanta Padhi, Senior Advocate on the other hand refuting petitioner's contentions and arguing conversely and launching scathing attack on the conduct of the petitioner contended that when this Hon'ble Court vide order dated 05.03.2014 disposed of CRLREV No.766 of 2013 with a direction to the petitioner to surrender before the learned Special Judge, Vigilance, Keonjhar 17 within a period of two weeks, the petitioner in blatant violation of the said order did not surrender and he was only arrested on 27.06.2015.
It is further urged that the petitioner without grant of renewal of mining lease to the lease holder Shri B.K.Mohanty allowed him and his power of attorney holder Shri Deepak Gupta to operate the mines illegally during his tenure. In his technical report submitted in Administrative Form No-III (Mines) dated 30.04.2004, the petitioner had mentioned that the applied RML area over 56.94 hectares was held under mining lease by Shri B.K.Mohanty which was executed on 13.12.1983 and expired on 12.12.2003. The first renewal application was made by the lessee on 03.12.2003 and the delay in filing the application had not been condoned. Not only the petitioner recommended the entire area applied for renewal for mining lease in spite of the glaring short comings in the application but also he issued permission to the power of attorney holder of Shri B.K.Mohanty to remove huge quantity of iron ores from Uliburu mines. It is the further contention that even though one Jagdish Mishra submitted a letter to the petitioner wherein it was alleged that a lot of illegal mining, ore lifting and dumping was going on in the area and requested the petitioner to take action but the 18 petitioner without making any demarcation, connived with the mining officers and intentionally and dishonestly allowed illegal mining beyond the lease hold area of Shri B.K.Mohanty and in the Uliburu Reserve Forest area causing a loss to the tune of Rs.170 crores.
Mr. Padhi contended that there is strong prima facie case available against the petitioner and since due to the lackadaisical attitude of the petitioner towards the State Government, the other accused persons hatched out such a scam in joint connivance and the petitioner actively participated in the scam and the misappropriated value of iron ore was to the tune of about Rs.2000 crores, he does not deserve to be released on bail. Concluding his argument, it was submitted that the bail application of Deepak Gupta was rejected by this Court in BLAPL No.7277 of 2014 vide order dated 14.11.2014 and the case of the petitioner stands in a different footing than that of the co-accused persons who have been enlarged on bail and therefore the claim of parity and equity is totally misconceived.
8. Pondering over the rival contentions in the light of the materials available on record, the following things are apparent:-
(i) The petitioner was the Deputy Director of Mines, Joda from 07.07.2003 to 04.07.2005;19
(ii) Mining lease was granted in favour of Shri B.K.Mohanty in village Uliburu under Barbil Tahasil in Keonjhar District by the Government of Odisha, Mining and Geology Department and a deed was executed on 13.12.1983 for a period of twenty years which was valid upto 12.12.1983;
(iii) Shri B.K.Mohanty submitted the renewal mining lease application on 03.12.2003 enclosing his representation dated 24.11.2003 and a medical certificate for condonation of delay in filing RML application;
(iv) The Collector, Keonjhar sent a copy of the renewal application of Shri B.K.Mohanty to the petitioner for furnishing inquiry report and the petitioner submitted his technical inquiry report along with performance report to the Collector, Keonjhar and to the Director, Mines, Bhubaneswar on 30.04.2004;
(v) The petitioner recommended the entire area i.e. 56.94 hectares applied for renewal of mining lease in spite of the short comings in the renewal application; 20
(vi) The petitioner having clear knowledge that the renewal mining lease application was not made within due time as provided under Rule 24A(1) of 1960 Rules and no permission has been granted, allowed the production of 1,38,400 MT and dispatch of 1,36,144.830 MT of iron ore during the year 2004 by Shri Deepak Gupta beyond the mining lease area of Shri B.K.Mohanty;
(vii) On 28.12.2003 an agreement for transfer of lease was made between Shri B.K.Mohanty, Mining lease holder and M/s. Snehapusph Marketing Pvt. Ltd. represented through its Director Deepak Gupta;
(viii) One registered power of attorney was executed on 29.12.2003 for mining and trading minerals by Shri B.K.Mohanty in favour of M/s. Snehapusph Marketing Pvt. Ltd. represented through its Director Deepak Gupta;
(ix) On 29.12.2003, an amount of Rs.7,50,000/- was paid by Sri Deepak Gupta to Shri B.K.Mohanty through a cheque and it was credited into the account of Sri B.K.Mohanty;
21
(x) Mining operation commenced on 16.01.2004 by the power of attorney holder Sri Deepak Gupta and no boundary pillars were available and Sri Deepak Gupta raised iron ore from 16.01.2004 to 16.09.2004 beyond the lease area of Shri B.K.Mohanty even prior to submission and approval of IBM plan on 15.12.2004 by the IBM authority;
(xi) Though mining lease deed was executed in favour of one Jagdish Mishra in Uliburu Iron Ore mines on 28.09.1981 for a period of thirty years but due to want of forest clearance and surface right permission, the lease was not working and it was lapsed by the Government of Orissa on dated 10.01.1995. The lapsed mining lease area of Sri Jagdish Mishra was adjacent to the mining lease area of Shri B.K.Mohanty;
(xii) Though Sri Jagdish Mishra submitted a letter to the petitioner to take necessary action against illegal mining, ore lifting and dumping in the mining area but the petitioner in connivance with others dishonestly allowed illegal mining;
(xiii) Even though Sri Jagdish Mishra had no legal right to operate the mines but on 17.04.2004 he 22 executed a registered power of attorney in favour of M/s. Snehapusph Marketing Pvt. Ltd. represented through its Director, Deepak Gupta to manage the lapsed mines area at Uliburu;
(xiv) During field verification, it was revealed that illegal mining operation was held partly in the lapsed mining lease area of Sri Jagadish Mishra and partly inside Uliburu Reserve Forest by shifting the reserve forest pillars;
(xv) The joint inquiry report of Sub-Collector, Champua and Tahasildar, Barbil indicate that no mining of iron ore was done inside the lease area of Shri B.K.Mohanty and mining activities have been done completely outside the leasehold area of Shri B.K.Mohanty;
(xvi) The joint physical verification conducted on 01.07.2013 to 04.07.2013 indicates that no iron ore quarry or mining operation was found in the mining lease area of Shri B.K.Mohanty, on the other hand Sri Deepak Gupta was raising iron ore beyond the mining lease area of Shri B.K.Mohanty i.e., in the lapsed mining lease area of Sri Jagdish Mishra and from 23 Uliburu Reserve Forest Area adjacent to it;
(xvii) The the petitioner who had jurisdiction/dominion over Champua Sub-division of Keonjhar district, violating the provisions of Orissa Minerals (Prevention of Theft, Smuggling and Illegal Mining and Regulation of Possession, Storage, Trading and Transportation) Rules, 2007 (hereafter "2007 Rules") and by abusing his official position, dishonestly and fraudulently and in active connivance with other Mining Officials and lease holders as well as their power of attorney holder allowed production of iron ore illegally beyond the mining lease area of Shri B.K.Mohanty and issued permission by creating forged documents showing that the production of iron ore has been done within the mining lease area of Sri B.K. Mohanty;
(xviii) The petitioner along with other mining, forest and revenue officials, the mining lease holders, their power of attorney holder allowed M/s. Snehapusph Marketing Pvt. Ltd. represented through its Directors to illegally excavate iron ore and sold it to M/s. Deepak Steel and Power Ltd;
24
(xix) The loss to Government towards the cost of
excavated iron ore and royalty was Rs.
1523,59,48,527.48 paisa;
(xx) The first charge sheet was submitted on
21.12.2003 against the petitioner and 24 others and the second charge sheet was submitted on 24.06.2014 against four persons.
9. The relevant provision under Rule 24A of 1960 Rules is quoted herein below:-
"24A. Renewal of Mining Lease- (1) An application for the renewal of a mining lease shall be made to the State Government in Form J, at least twelve months before the date on which the lease is due to expire, through such officer or authority as the State Government may specify in this behalf.
xx xx xx (6) If an application for renewal of a mining lease made within the time referred to in sub-rule (1) is not disposed of by the State Government before the date of expiry of the lease, the period of that lease shall be deemed to have been extended by a further period till the State Government passes order thereon. "
25
On a plain reading of the abovementioned two sub-
rules (1) and (6) indicate that only when the renewal application is filed at least twelve months before the date of expiry of the lease, even if the said application is not disposed of by the State Government before the date of expiry of the lease, till the State Government passes an order thereon, the period of the lease shall be deemed to have been extended till that date.
The legislature is quite competent to enact a deeming provision for the purpose of assuming the existence of a fact which does not really exist. A deeming provision is an admission of the non-existence of the fact deemed. A deeming fiction has its own significance and created by the legislature to achieve a purpose. When a statute creates a legal fiction saying that something shall be deemed to have been done which in fact and truth has not been done, the Court has to examine and ascertain as to for what purpose and between which persons such a statutory fiction is to be resorted to and thereafter, the Courts have to give full effect to such a statutory fiction and it has to be carried to its logical conclusion. Legal fiction should not be extended beyond the scope thereof or beyond the language by which it is created. A deeming provision cannot be pushed too far so as to result in an anomalous or absurd position. Stretching 26 the consequences beyond what logically flows amounts to an illegitimate extension of the purpose of the legal fiction. The deeming provision in sub-rule (6) creates a legal fiction of extension of lease period only for the purpose of 1960 Rules in favour of the lessee after the date of expiry of the lease.
In the present case, Shri B.K.Mohanty filed the renewal of mining lease application before the competent authority i.e., Steel and Mines Department, Government of Orissa through Collector, Keonjhar on 03.12.2003 along with a representation dated 24.11.2003 and medical certificate for condonation of delay. Since the lease deed was executed in favour of Sri B.K. Mohanty on 13.12.1983 for a period of twenty years, the working of mines was valid upto 12.12.2003 and therefore it is apparent that the renewal of mining lease application dated 03.12.2003 was not within the period stipulated under Rule 24A (1) of 1960 Rules and therefore the question of deemed extension as provided in sub-rule (6) does not arise.
Sub-rule (10) of Rule 24A of 1960 Rules empowers the State Government to condone the delay in making an application for renewal of mining lease after the time limit prescribed in sub- rule (1) but such an application has to be made before the expiry 27 of the lease. Though in the present case, the lessee Shri B.K.Mohanty filed an application for condonation of delay to Principal Secretary, Department of Steel and Mines on 24.11.2003 but the delay had not been condoned.
In view of the statutory bar under Rule 24A of 1960 Rules, any mining activity after 12.12.2003 without proper renewal mining lease application in the leasehold area of Shri B.K.Mohanty is per se illegal. In view of the shortcomings in the renewal application of mining lease, the question of deemed extension of the lease period as provided in sub-rule (6) of Rule 24A of 1960 Rules does not arise.
It is the contention of the learned counsel for the petitioner that since the renewal application was not within the time prescribed under Rule 24A(1) of 1960 Rules but it was supported by an application for condonation of delay which was made before the expiry of the lease and it is only the State Government who can either condone it or reject it, even if the State Government condones the delay on a subsequent date after the expiry of the lease period then also the renewal application shall remain valid. According to the learned counsel, till a decision is taken on the application for condonation of 28 delay, it cannot be said that no renewal of mining lease application pending with the State Government and therefore till such time the renewal of mining lease application was pending, the lessee would be entitled to raise iron ore because of the deeming fiction contained in sub-rule (6) of Rule 24A of 1960 Rules. It is further contended that since during the tenure of the petitioner as Deputy Director of Mines, Joda, the renewal application of the lessee remained pending, the lessee or his power of attorney holder was entitled to operate the mines under the deeming fiction.
The contention raised is wholly fallacious. From vetting and revisiting the relevant provisions, it is apparent that if the renewal application for mining lease is made beyond the prescribed period as mentioned in sub-rule (1) supported by a delay condonation application, the deeming provision of extension of the lease period as provided under sub-rule (6) of 1960 Rules will not be attracted. It will be attracted only when the application for renewal of mining lease is made at least twelve months before the date on which the lease is due to expire and such application is not disposed of before the expiry of the lease by the State Government.
29
I am also of the prima facie view that the execution of registered power of attorney by Shri B.K.Mohanty on 29.12.2003 for mining and trading minerals in favour of M/s. Snehapusph Marketing Pvt. Ltd. represented through its Director Shri Deepak Gupta was also not proper as the same was made after the lease period which ended on 12.12.2003 and by then there was no valid application for renewal of mining lease by the lessee before the State Government.
10. Adverting at this juncture to the role played by the petitioner in the entire episode, it appears that during the period from 07.07.2003 to 04.07.2005 when he was posted as Deputy Director of Mines, Joda, the Collector, Keonjhar after receipt of the renewal mining lease application from Shri B.K.Mohanty on 03.12.2003, forwarded a copy of such application to the petitioner as well as D.F.O., Keonjhar and Tahasildar, Barbil vide letter dated 05.01.2004 for furnishing their enquiry report.
The petitioner submitted his technical enquiry report along with performance report of mines to the Collector, Keonjhar and to the Director of Mines, Bhubaneswar on 30.04.2004. In the technical report, even though the petitioner had mentioned that the first renewal application filed by the 30 lessee was not within due time as per Rule 24A(1) of 1960 Rules, in spite of that the petitioner recommended the entire mining area of 56.94 hectares for grant of such renewal.
Similarly, in the performance report of the mines, the petitioner mentioned that there was nil production and dispatch of iron ore from the year 1993 to 2003 and during the year 2004, there was production of 1,38,400 MT and dispatch of 1,36,144.830 of MT of iron from Shri B.K.Mohanty mining lease area but there was no actual production in that lease area.
It prima facie appears that the petitioner was having clear knowledge that there was no extraction of iron ore from the granted mining lease area of Shri B.K.Mohanty which had expired since 12.12.2003 but he allowed production of 1,38,400 of MT of iron ore by Shri Deepak Gupta beyond the mining lease area of Shri B.K.Mohanty.
It further appears that as per 2007 Rules, the petitioner had the jurisdiction and dominion over Champua Sub-division of Keonjhar District and over all the minerals excepting precious and semi-precious stone and it was his duty and responsibility to see that all the mining and prospecting operations are carried on systematically in accordance with 1960 Rules and to take care 31 and protect the minerals under his jurisdiction. It further appears that the petitioner had prima facie failed in his duty and he had violated the provisions of 1960 Rules and 2007 Rules by abusing his official position dishonestly and fraudulently. Prima facie it appears that the petitioner had acted in connivance with the lease holders and their power of attorney holder and thereby allowed production of iron ore illegally beyond his mining lease area i.e. inside the lapsed mining area of Sri Jagadish Mishra as well as Uliburu Reserve Forest Area and he issued permission on the forged documents created showing that the production of iron ore had been done within the mining lease area of B.K.Mohanty. It further appears that even though Senior Inspector of Mines, Joda Shri Subash Chandra Barik on 03.02.2004 reported that mining operation had commenced on 16.01.2004 by power of attroney holder Shri Deepak Gupta and he suggested for demarcation of mining lease area and for location of boundary pillars, on receipt of such report, the petitioner did not take any effective steps for demarcation of the boundary area nor did he take any steps for location of the M.L. pillars. The petitioner seems to have intentionally and dishonestly allowed the power of attorney holder of Shri B.K.Mohanty to conduct the mining operation that to beyond the 32 mining lease area of Shri B.K.Mohanty and issued permissions for dispatch of iron ores.
The materials available on record further indicates that the petitioner and other mining, forest and revenue officials allowed M/s. Snehapusph Marketing Pvt. Ltd. represented by Shri Deepak Gupta and Champak Gupta to illegally excavate iron ore which caused pecuniary advantage to the lessee and its power of attorney holder to the tune of Rs. 839,67,11,748.00 causing loss of equivalent amount to the Government. It further appears that the lessee and the Power of Attorney holder in connivance with the petitioner and other mining, forest and revenue Officials committed theft of iron ore amounting to Rs.680,72,52,301.60. The total loss to the Government exchequer towards the cost of iron ore is Rs. 1520,39,64,049.60. Similarly for non-payment of royalty by the lessee and the power of attorney holder, the Government sustained loss of Rs.3,19,84,477.88 and thus the total loss comes to Rs.1523,59,48,527.48.
11. The learned counsel for the petitioner contended that some of the co-accused persons have already been released on bail by this Court either under section 438 Cr.P.C. or under 33 section 439 Cr.P.C. and therefore the bail application of the petitioner may be favourably considered on the ground of parity and equity.
It appears that one of the co-accused namely, Krutibash Giri who was the Revenue Inspector has been granted bail in an application under section 438 Cr.P.C. in BLAPL No. 21477 of 2013 vide order dated 18.09.2013. No reason has been assigned for grant of bail to such accused.
Similarly accused Rabindra Mahanta who was a Forester approached this Court in an application under section 438 Cr.P.C. vide BLAPL No. 21476 of 2013 and he was granted bail vide order dated 18.09.2013 but no reason has been mentioned in the bail order for grant of such bail.
Accused Rabindra Narayan Sahoo who was a Ex-
Director of Mines and was the Director of Mines from 25.07.2006 to 16.09.2009 approached this Court in an application under section 438 Cr.P.C. vide BLAPL No. 14477 of 2014 and vide order dated in 19.11.2014, taking note of the fact that the said accused had already retired from Government service and was not chargesheeted at the first instance but subsequently supplementary charge sheet was filed against him, taking into 34 account absence of any direct evidence against him so far as illegal mining activities from the Uliburu Reserve Forest Area is concerned and also taking note of his age and health condition that he had undergone brain tumor operation and was having optic atrophy in the right eye, anticipatory bail was granted in his favour.
Accused Bijay Kishore Mohanty, the lease holder filed an application under section 439 Cr.P.C. vide BLAPL No. 21237 of 2013 and vide order dated 27.8.2013, taking note of his period of detention and different ailments including the heart problem with which he was suffering and also progress of investigation, he was granted bail.
Accused Satyabrata Rout who was the Ex-Inspector of Mines filed an application under section 439 Cr.P.C. before this Court vide BLAPL No. 14292 of 2014 and vide order dated 18.8.2015, taking note of his period of detention for about one and half years and also absence of any chance of absconding or tampering with the prosecution evidence and taking note of no objection from the learned counsel appearing for the Vigilance Department for release of such accused, bail was granted. 35
12. The law relating to bail in case of economic offences is more or less settled in view of the decisions of the Hon'ble Supreme Court in case of Y.S. Jagan Mohan Reddy -vrs.- CBI reported in (2013) 55 Orissa Criminal Reports (SC) 825, State of Gujurat -vrs.- Mohan Lal Jitamalji Porwal reported in AIR 1987 SC 1321 and Nimmagadda Prasad - vrs.- CBI reported in (2013) 7 Supreme Court Cases 466.
Economic offences are considered grave offences as it affects the economy of the country as a whole and such offences having deep rooted conspiracy and involving huge loss of public fund are to be viewed seriously. Economic offence is committed with cool calculation and deliberate design solely with an eye on personal profit regardless of the consequence to the community. In such type of offences, while granting bail, the Court has to keep in mind, inter alia, the larger interest of public and State. The nature and seriousness of an economic offence and its impact on the society are always important considerations in such a case and those aspects must squarely be dealt with by the Court while passing an order on bail applications.
No doubt at the stage of granting bail, detailed examination of evidence and elaborate discussions on merits of 36 the case need not be taken but the order must reflect the reasons for arriving at a prima facie conclusion as to why bail was being granted particularly when the accused-petitioner is charged with economic offences. Discretion should be used in a proper and judicious manner and the Court must take note of the nature of accusation, the nature of supporting evidence, the severity of punishment in case of conviction, reasonable apprehension of tampering with the evidence, criminal antecedents etc. Bail should not be denied merely because the sentiments of the community are against the accused. The purpose of bail law is not punitive but preventive. It is not to be denied merely because there is a prima facie case which requires trial of the issue of guilt or innocence. Its purpose is to secure attendance of the accused at the trial and non interference with a fair and speedy trial. Even if there is a prima facie case for a possible conviction, bail must be granted unless there is reasonable evidence before the Court that the accused will abscond or destroy evidence or tamper with witnesses to frustrate the trial. Mere allegation to that effect by the prosecution not supported by credible evidence is not enough. 37
In case of Preeti Bhatia -v- Republic of India reported in (2015) 61 Orissa Criminal Reports 131: 2015 (1) Orissa Law Reviews 662, it is held as follows: -
"7...... ...... Parity cannot be the sole ground for grant of bail. It is one of the grounds for consideration of the question of bail. There is no absolute hidebound rule that bail must necessarily be granted to the co-accused, where another co- accused has been granted bail. Even at the stage of subsequent bail application when the bail application of the co-accused whose bail had been earlier rejected is allowed and co-accused is released on bail, even then also the Court has to satisfy itself that, on consideration of more materials placed, further developments in the investigations or otherwise and other different considerations, there are sufficient grounds for releasing the applicant on bail. If on careful scrutiny in a given case, it transpires that the case of the applicant before the Court is identically similar to the accused on facts and circumstances who has been bailed out, then the desirability of consistency will require that such an accused should also be released on bail. A Judge is not bound to grant bail to an accused on the ground of parity even where the order granting bail to an identically placed co-accused contains no cogent reasons or if the same has been passed in flagrant 38 violation of well settled principle of law and ignores to take into consideration the relevant facts essential for granting bail. Such an order can never form the basis for a claim of parity. It will be open to the Judge to reject the bail application of the applicant before him as no Judge is obliged to pass orders against his conscience merely to maintain consistency. The grant of bail is not a mechanical act. Merely because some of the co-accused, whom similar role has been ascribed, has been released on bail earlier and State has not moved the higher Court against the order in question for cancellation, the power of the Court cannot be fettered to act against conscience."
Turning to the core issue regarding claim of parity, I find that no reasons have been assigned in the orders granting bail to co-accused Krutibas Giri and Rabindra Mohanta. The other co-accused persons namely Rabindra Narayan Sahoo, Bijay Kishore Mohanty and Satyabrata Mohanty have been granted bail either taking into account their period of detention, health condition or nature of materials available against them.
On an overall analysis of the materials available on record against the petitioner, I am of the view that his case is not identically similar to the co-accused on facts and circumstances and he stands in a different footing than the co- 39 accused persons who have been enlarged on bail and therefore the claim of parity and equity as advanced by the learned counsel for the petitioner is not accepted and accordingly the same is rejected.
13. Embarking upon the assertion that there is no material that the petitioner entered into criminal conspiracy with other co- accused persons, I am of the view that in a case of this nature, it is very difficult to find direct evidence to establish criminal conspiracy. The conduct of the petitioner at the relevant point of time when he was holding such an important post are to be taken note of for drawing inference of commission of criminal conspiracy.
In case of Baliya @ Bal Kishan -Vrs. State of Madhya Pradesh reported in (2012) 9 Supreme Court cases 696, the Hon'ble Supreme Court has held as follows:-
"17. The offence of criminal conspiracy has its foundation in an agreement to commit an offence or to achieve a lawful object through unlawful means. Such a conspiracy would rarely be hatched in the open and, therefore, direct evidence to establish the same may not be always forthcoming. Proof or otherwise of such conspiracy is a matter of inference and the Court drawing such inference much consider whether the basic 40 facts i.e. circumstances from which the inference is to be drawn have been proved beyond all reasonable doubt, and thereafter, whether from such proved and established circumstances no other conclusion except that the accused had agreed to commit an offence can be drawn. Naturally, in evaluating the proved circumstances for the purposes of drawing any inference adverse to the accused, the benefit of any doubt that may creep in must go to the accused."
14. The learned counsel for the petitioner placed reliance in case of R.Sai Bharathi -v- J. Jayalalitha reported in (2004) 2 Supreme Court Cases 9, wherein it is held as follows:-
"53. The next charge we have to deal with is one arising under section 409 IPC. Criminal breach of trust has been defined under section 405 IPC. For the offence of criminal breach of trust by a public servant, the punishment is provided under section 409 IPC.
xx xx xx It cannot be said that a public servant who holds a particular portfolio and has an element of supervisory control in certain matters, has a dominion over the property so as to exercise any legal incidents attached to the right of ownership. Therefore, there was no entrustment of the said properties and it cannot be said that A-1 had dominion over the said properties either as the 41 Chief Minister or as the Minister or Industries and in any case, the evidence does not establish the ingredient of dishonest disposal or conversion of property for personal use. Thus the charge under the aforesaid section is also not established as rightly held by the High Court."
Learned counsel for the petitioner further placed reliance in case of C.K. Jaffer Sharief -v- State reported in (2013) 1 SCC 205, wherein it is held as follows:-
"17.......If in the process, the rules or norms applicable were violated or the decision taken shows an extravagant display of redundance, it is the conduct and action of the appellant which may have been improper or contrary to departmental norms. But to say that the same was actuated by a dishonest intention to obtain an undue pecuniary advantage will not be correct. That dishonest intention is the gist of the offence under Section 13 (1) (d) is implicit in the words used i.e. corrupt or illegal means and abuse of position as a public servant. A similar view has also been expressed by this Court in M. Narayanan Nambiar -v- State of Kerala reported in AIR 1963 SC 1116 while considering the provisions of Section 5 of the 1947."
15. After bestowing my anxious, painstaking, careful consideration to the tactical and enthralling contentions raised at 42 the Bar and on perusal of the case laws cited, it is prima facie apparent that the petitioner during his tenure as Dy. Director of Mines, Joda from 07.07.2003 to 04.07.2005 allowed Sri Deepak Gupta, power of attorney holder of Shri B.K.Mohanty and Sri Jagdish Mishra to operate the mines illegally even though there was no proper renewal application of mining lease filed by lease holder Shri B.K.Mohanty in accordance with 1960 Rules and even though mining lease granted in favour of Jagdish Mishra was lapsed by the Government of Odisha vide Government Proceeding No.379 dated 10.01.1995 and he had no legal right to operate the mines. It is also prima facie apparent that the recommendation of the petitioner for grant of entire area applied for renewal of mining lease by Shri B.K.Mohanty in spite of the glaring short comings in the RML application and the statutory bar under Rule 24A of 1960 Rules and issuance of permission by the petitioner to M/s. B.K.Mohanty to remove huge amount of iron ores from Uliburu Mines by letters dated 05.02.2004 and 05.06.2004 clearly raises accusing fingers at the petitioner that he was hand in glove not only with the lease holders but also with their power of attorney holder. The materials available on record also prima facie reveal that the illegal mining activities were going on beyond the leasehold area of Shri B.K.Mohanty, 43 that is partly in the lapsed mining lease area of Sri Jagdish Mishra and partly inside Uliburu Reserve Forest. A strong prima facie case is available against the petitioner to show that he along with the mining, forest, revenue officials, the mining lease holders and their power of attorney holder allowed M/s. Snehapusph Marketing Pvt. Ltd., represented through its Directors, Sri Deepak Gupta and Champak Gupta to illegally excavate iron ore and then dispatched/sold it to M/s. Deepak Steel and Power Ltd. and thereby there was pecuniary advantage to the lessees and their power of attorney holder and there was equivalent loss to the Government to the tune of more than Rs.1523 crores. The petitioner was holding an important post and the mining scam was done in the area under his jurisdiction and he had been entrusted with the valuable mining properties of the State and it was his duty and responsibility to see that all the mining and prospecting operations are carried on systematically in accordance with 1960 Rules and 2007 Rules and he was duty bound to take care and protect the minerals under his jurisdiction. It prima facie appears that the petitioner had abused his official position dishonestly and fraudulently and in active connivance with the lease holders, their power of attorney holder as well as the other mining, forest and revenue 44 officials allowed the production of iron ore illegally and also issued permission by creating false documents showing that the production of iron ore has been done within the mining lease area of Shri B.K.Mohanty. In the performance report of the mining of Shri B.K.Mohanty, the petitioner had mentioned that there was nil production and dispatch of iron ore from the year 1993 to 2003 but there was production of 1,38,400 MT and dispatch of 1,36,144.830 MT of iron ore during the year 2004 which prima facie establishes that in spite of defective application for the renewal of mining lease, the petitioner had allowed the lessee Sri B.K. Mohanty through its power of attorney holder to extract and dispatch the iron ore without acceptance of the representation of the lessee for condonation of delay in submission of RML application and without grant of RML. It is also evident that in spite of the report of Senior Inspector of Mines, Joda regarding illegal mining operation, the petitioner did not take any effective steps for demarcation of the boundary of mining lease area and location of mining lease M.L. pillars.
I am of the prima facie view that during the tenure of the petitioner as Deputy Director of Mines, Joda, illegal and unauthorized mining operation could not have been successful, had the petitioner discharged his duties faithfully and honestly. 45 Neither the iron ore would have been extracted nor would the same have been dispatched without the permission of the petitioner. The involvement of the petitioner in the deep rooted conspiracy in the economic offences involving huge loss to Government exchequer is prima facie apparent.
The conduct of the petitioner in deliberately flouting the order of this Court dated 05.03.2014 passed in CRLREV No.766 of 2013 in not surrendering before the learned Special Judge, Vigilance Keonjhar within a period of two weeks clearly reveals that the petitioner has no due regards to the orders of this Court.
The petitioner is a very influential person and since the trial is going to commence, once he is released on bail, the chance of tampering with the evidence cannot be ruled out.
Without detailed examination of evidence and elaborate discussion on merit of the case but considering the nature and seriousness of accusation and its impact on the society, the severity of punishment in case of conviction, reasonable apprehension of tampering with the evidence and availability of prima facie materials against the petitioner regarding his involvement in the commission of offences, I am of the view that even though some of the co-accused persons have been released on bail but taking into account the larger interest of public and 46 State, the criminal conspiracy involved in the case so also misappropriation of huge amount of public money and substantial loss to the Government exchequer, it would not be proper to release the petitioner on bail.
Before parting, I would humbly say that corrupted public officials block the progress of the nation. Their mindsets are inclined more towards their personal benefits than the welfare of the society. The power hankering and greedy individuals forget that one day they are to depart from this materialistic world empty handed and their kith and kin are to face the wrath of scornful remarks of the people.
Accordingly, the bail application sans merit and hence stands rejected.
..............................
S.K. Sahoo, J.
Orissa High Court, Cuttack The 26th October, 2015/Pravakar