Andhra Pradesh High Court - Amravati
Sri Nara Chandra Babu Naidu, vs The State Of Andhra Pradesh, on 10 January, 2024
THE HON'BLE SRI JUSTICE T. MALLIKARJUNA RAO
CRIMINAL PETITION No. 8756 OF 2023
O R D E R:
1. This Petitioner/A.2 has filed the present Criminal Petition invoking the provisions of Section 438 of the Code of Criminal Procedure (Cr.P.C.) seeking pre-arrest bail in the event of his arrest in connection with Crime No.19 of 2023, registered at the C.I.D., Police Station, Andhra Pradesh, Amaravati, Mangalagiri.
2. The Petitioner, along with others, stands accused in a case involving the offences punishable under Sections 120(B), 409 read with Section 34 of the Indian Penal Code, 1860 (referred to as 'IPC') and Sections 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (referred to as 'PC Act').
3. The case of the prosecution as projected in the report, dated 03.10.2023 as contained in the counter affidavits filed on behalf of the Respondent-State, which are as follows:
i. In a report dated 03.10.2023 filed by the Director of Mines and Geology, Andhra Pradesh, CID registered Crime No.19 of 2023. The report asserts that minerals falling outside the purview of Section 3(e) of the Mines and Minerals (Development and Regulation) Act, 1957 (abbreviated as the „MMDR Act') are under the exclusive regulatory authority of the Union of India. The Union is tasked with the functions of regulating mining leases, leading to consequential decisions by the State for lease grants. Regarding minerals not exclusively controlled by the Union under Section 3(e) of the MMDR Act, such as Sand, the State holds delegated powers for regulation under Section 15 of the MMDR Act.
T.M.R., J 2 Crl.P.No.8756 of 2023 ii. In line with this delegated authority, the State periodically formulates statutory rules governing the process, procedures, and limitations for mining lease grants for various minerals. Before 2014, the statutory rules for Sand mining were outlined in G.O.Ms.No.186, dated 17.12.2013. This regulation covered the extraction/disposal of stream/river sand, introducing allotment through draw of lots, and imposing obligations on the allottees.
iii. As part of a Cabinet decision, G.O.Ms.No.94 dated 28.08.2014 vested sand reaches in the State to M/s. APMDC. Subsequently, these reaches were allotted to District/Mandal Mahila Samakhyas, following recommendations supported by a Cabinet-backed committee. The sand policy underwent review in 2016 based on Cabinet Sub Committee recommendations, leading to approval and notification in G.O.Ms.No.19 dated 15.01.2016. This policy incorporated a tender-cum-e-auction process for price discovery, aiming to strike a balance between auction transparency and fixing a cap on the final sale price for infrastructure development. Thereafter, G.O.Ms.No.20 dated 15.01.2016 was issued for consequential amendment to the statutory rules. iv. However, on 04.03.2016, a Memo No.3066/M.II(1)/2016-3 signaled a shift in the sand policy, allowing "Free Sand" from 02.03.2016. G.O.Ms.No.43 dated 06.04.2016 formalized this change. Statutory amendments to Rule 9(B) were concurrently issued in G.O.Ms.No.35 dated 14.03.2016 and G.O.Ms.No.42 dated 29.03.2016, specifying penalties. The decision for "Free Sand" lacked factual and legal justification, a preparatory decision-making process, or compliance with business rules. The absence of adherence to established business protocols is evident in the lack of a proposal for a policy change, a cabinet note, or a cabinet memorandum recorded for the decision to provide sand for free. This decision, without due process, presents a clear financial detriment to the exchequer, encompassing the loss of seigniorage fees and potential auction revenues upon the allocation of sand reaches.
v. On 04.03.2016, a memorandum was issued to all District Collectors, instructing the implementation of the aforementioned decision. It is noteworthy that this directive was issued while the statutory rules and G.O.Ms.Nos.19 and 20 were still in force. The fact that these rules T.M.R., J 3 Crl.P.No.8756 of 2023 were not statutorily superseded until the issuance of G.O.Ms.No.43 dated 06.04.2016 raises concerns about potential malafide intentions. vi. Following the order dated 01.08.2016 in O.A.No.177 of 2016 issued by the Hon‟ble National Green Tribunal, Chennai, and subsequent actions by the High Court on multiple occasions, there is evident indication of the purported participation of government officials and various private individuals. They appear to have taken advantage of the "Free Sand Policy," which, under the guise of a public welfare initiative, has functioned as a mechanism for enriching a select group of private individuals. These individuals have strategically seized control of sand reaches and operations, resulting in substantial monetary gains amounting to thousands of crores, as observed by the Hon‟ble National Green Tribunal.
vii. Between 2016 and 2019, over 1000 illegal sand mining cases were registered in the State, with penalties amounting to Rs.40 Crores. The "Free Sand Policy" allegedly led to the division of sand reaches and mineral reserves among political functionaries of the ruling party, aiding them in gaining pecuniary benefits through illegal sand mining. viii. The issue assumes significant public importance due to the directives issued by the NGT, with no subsequent actions taken in compliance. The financial implications of the loss to the public exchequer, encompassing Seigniorage fee and other statutory fees, coupled with the exploitation of sand reserves for the apparent advantage of ruling party politicians at the relevant juncture, as disclosed in the public domain, necessitate a thorough investigation.
ix. After a thorough examination of all pertinent material and connected records, it is prima facie apparent that the state's property, comprising natural resources, entrusted to intended beneficiaries, was undertaken in violation of statutory regulations. The petitioner's repeated assertion of selective targeting of the TDP is deemed an untenable defense in light of the alleged deep conspiracy. The complaint suggests a common intention among beneficiaries of certain policy decisions to confer pecuniary advantage without public interest, using their positions as public servants. Consequently, there exists a clear context of the petitioner and other co-accused engaging in abetment, common intention, and conspiracy with both known and unknown private individuals. This collective effort is deemed to have violated the T.M.R., J 4 Crl.P.No.8756 of 2023 entrustment and meets the necessary criteria for implicating Section 409 IPC.
4. The case of the Petitioner/A.2, in brief, is that:
i. The CID Amaravati, Mangalagiri, is alleged to be operating under the influence of the state's ruling dispensation, giving a go by to its investigative neutrality. The Investigating Agency is selectively registering FIRs concerning policies of the previous regime, devoid of criminality. The present FIR, allegedly based solely on orders from the Hon‟ble National Green Tribunal, provides false reasons for the delay in registration and lacking specific mention of private entities benefiting from the 'Free Sand Policy,' containing only sweeping and self-serving allegations.
ii. The manner in which multiple FIRs are being registered defies the mandate of the Hon‟ble Supreme Court. In cases involving delays, a preliminary inquiry is mandated before FIR registration, which the CID has purportedly neglected to conduct. The CID's failure to thoroughly analyze the policy and consider other NGT orders suggests a pre-determined investigative approach.
iii. The allegations relate to decisions taken in the course of official duty, thus invoking the bar on initiating any inquiry or investigation without approval under Section 17-A of the Prevention of Corruption Act, 1988. The petitioner argues that the purported inquiry and FIR registration from 11.10.2023 are non-existent, considering the pending challenge to the issue under Section 17-A before the Hon‟ble Supreme Court. The petitioner, facing similar FIRs, expresses concern that ongoing actions are not disclosed to the Court during proceedings related to other FIRs. The delay in the FIR is falsely recorded and demonstrates the investigating agency's biased approach, aiming to harass and divert the petitioner's attention from political activities.
iv. The registration of the present FIR is a form of retaliation for raising corruption issues in sand mining within the current regime. It is claimed that FIRs are being systematically registered against the petitioner in response to the issues raised against the government. Citing the Hon‟ble Supreme Court's stance that delay in an FIR is grounds for anticipatory bail, the petitioner argues that as the Leader T.M.R., J 5 Crl.P.No.8756 of 2023 of the Opposition, with no control over relevant departments or individuals, there is no risk of influencing witnesses or tampering with evidence. The petitioner, an NSG protectee with a history of security threats, contends that no offense under Section 409 IPC or the Prevention of Corruption Act can be substantiated in the FIR, as no misappropriation of government funds is alleged.
5. Heard Sri Siddharth Agarwal, learned Senior Counsel, representing the Petitioner/A.2, and Sri S. Sriram, learned Advocate General, representing the Respondent-State. Both sides reiterated their submissions on par with the contentions presented in the petition and counter. Consequently, the contentions raised by learned counsel need not be reproduced.
6. In Siddharam Satlingappa Mhetre V. State of Maharashtra1, the Hon‟ble Apex Court laid down certain factors and parameters that must be considered while dealing with anticipatory bail. It further held as follows:
(i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
(ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence;
(iii) The possibility of the applicant to flee from justice;
(iv) The possibility of the accused's likelihood to repeat similar or other offences;
(v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;
(vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;
(vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, I860 the court should consider with even greater care 1 (2011) 1 SCC 694 T.M.R., J 6 Crl.P.No.8756 of 2023 and caution because overimplication in the cases is a matter of common knowledge and concern;
(viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;
(ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
(x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail. Reference may be made to another para of this judgment;
7. Learned counsel for the Petitioner relied on Gurbaksh Singh Sibbia & Ors. V. State of Punjab2, wherein, the Hon'ble Supreme Court held that:
26. We find a great deal of substance in Mr Tarkunde's submission that since denial of bail amounts to deprivation of personal liberty, the court should lean against the imposition of unnecessary restrictions on the scope of Section 438, especially when no such restrictions have been imposed by the legislature in the terms of that section. Section 438 is a procedural provision which is concerned with the personal liberty of the individual, who is entitled to the benefit of the presumption of innocence since he is not, on the date of his application for anticipatory bail, convicted of the offence in respect of which he seeks bail. .............
8. Learned counsel for the petitioner further relied on the decision in Satender Kumar Antil V. CBI3, wherein the Hon‟ble Supreme Court held that:
Economic offences (Category D)
90. What is left for us now to discuss are the economic offences.
The question for consideration is whether it should be treated as a class of its own or otherwise. This issue has already been dealt with 2 (1980) 2 SCC 565 3 (2022) 10 SCC 51 T.M.R., J 7 Crl.P.No.8756 of 2023 by this Court in P. Chidambaram v. Directorate of Enforcement [(2020) 13 SCC 791 : (2020) 4 SCC (Cri) 646] , after taking note of the earlier decisions governing the field. The gravity of the offence, the object of the Special Act, and the attending circumstances are a few of the factors to be taken note of, along with the period of sentence. After all, an economic offence cannot be classified as such, as it may involve various activities and may differ from one case to another. Therefore, it is not advisable on the part of the court to categorise all the offences into one group and deny bail on that basis. Suffice it to state that law, as laid down in the following judgments, will govern the field:
Precedents
91.P. Chidambaram v. Directorate of Enforcement, (2020) 13 SCC 791 : (2020) 4 SCC (Cri) 646] : (SCC pp. 804-805, para 23) "23. Thus, from cumulative perusal of the judgments cited on either side including the one rendered by the Constitution Bench [Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 : 1980 SCC (Cri) 465] of this Court, it could be deduced that the basic jurisprudence relating to bail remains the same inasmuch as the grant of bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial. However, while considering the same the gravity of the offence is an aspect which is required to be kept in view by the Court. The gravity for the said purpose will have to be gathered from the facts and circumstances arising in each case. Keeping in view the consequences that would befall on the society in cases of financial irregularities, it has been held that even economic offences would fall under the category of "grave offence" and in such circumstance while considering the application for bail in such matters, the Court will have to deal with the same, being sensitive to the nature of allegation made against the accused.
One of the circumstances to consider the gravity of the offence is also the term of sentence that is prescribed for the offence the accused is alleged to have committed. Such consideration with regard to the gravity of offence is a factor which is in addition to the triple test or the tripod test that would be normally applied. In that regard what is also to be kept in perspective is that even if the allegation is one of grave economic offence, it is not a rule that bail should be denied in every case since there is no such bar created in the relevant enactment passed by the legislature nor does the bail jurisprudence provide so. Therefore, the underlining conclusion is that irrespective of the nature and gravity of charge, the precedent of another case alone will not be the basis for either grant or refusal of bail though it may have a bearing on principle. But ultimately the T.M.R., J 8 Crl.P.No.8756 of 2023 consideration will have to be on case-to-case basis on the facts involved therein and securing the presence of the accused to stand trial."
9. Learned counsel for the Petitioner further relied on the decision in Sushila Aggarwal V. State (NCT of Delhi)4, wherein the Hon'ble Supreme Court held that:
"75. ......... In other words, anticipatory bail can be granted, having regard to all the circumstances, in respect of all offences. ............. Also, whether anticipatory bail should be granted, in the given facts and circumstances of any case, where the allegations relating to the commission of offences of a serious nature, with certain special conditions, is a matter of discretion to be exercised, having regard to the nature of the offences, the facts shown, the background of the applicant, the likelihood of his fleeing justice (or not fleeing justice), likelihood of cooperation or non-cooperation with the investigating agency or police, etc........."
10. Learned Special Public Prosecutor relied on the decision in Manish Sisodia V. Central Bureau of Investigation5. In support of the contention that policy decisions taken in a blatant disregard to law with a common intention to secure undue pecuniary gains are not immune to criminal law implications.
11. In Gurucharan Singh V. State (Delhi Admn.)6, the Hon‟ble Supreme Court observed that:
"29....... There cannot be an inexorable formula in the matter of granting bail. The facts and circumstances of each case will govern the exercise of judicial discretion in granting or cancelling bail.4
(2020) 5 SCC 1 5 2023 SCC OnLine SC 1393 6 (1978) 1 SCC 118 T.M.R., J 9 Crl.P.No.8756 of 2023
12. In Mahipal V. Rajesh7, the Hon‟ble Apex Court held that it is necessary for the Court while considering a bail application, to assess whether, based on the evidentiary record, there existed a prima facie or reasonable ground to believe that the accused has committed the crime. It is settled law that when granting bail, a detailed examination of the evidence and elaborate documentation of the case's merits has not to be undertaken. That did not mean that whilst granting bail, some reasons for prima facie concluding why bail was being granted did not have to be indicated.
13. A Court doesn't need to give elaborate reasons while granting bail, particularly when the case is at the initial stage, and the allegations of the offences by the accused would not have been crystallised as such.
14. It is settled law that while considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to free, fair and complete investigation, and there should be prevention of harassment, humiliation and unjustified detention of the accused. It is the duty of the Court to exercise its jurisdiction in the proper way to protect the personal liberty of the citizen. According to law, everyone charged with a penal offence has a right to be presumed innocent until proven guilty. The presumption of innocence is a human right. There cannot be a presumption of guilt to deprive a person of 7 (2020) 2 SCC 118 T.M.R., J 10 Crl.P.No.8756 of 2023 his liberty without an opportunity before the Court. The Court must thoroughly scrutinize the entire available record, particularly the allegations directly attributed to the accused, and assess whether these allegations are corroborated by other material and circumstances on record.
15. In light of the above settled legal principles, the rival contentions raised on behalf of both sides will be appreciated to decide the entitlement of the Petitioner to get the relief of anticipatory bail.
16. To facilitate a comprehensive understanding of the rival contentions, it is essential to briefly highlight certain admitted or uncontested facts:
(i) On 03.10.2023 at 11:00 hours, Sri V.G. Venkata Reddy, Director of Mines and Geology, submitted a written report.
Subsequently, based on this report, the Station House Officer of the Crime Investigation Department, A.P., registered a crime in Cr. No.19 of 2023 against the petitioners and others.
(ii) The Office of the Director of Mines and Geology holds the status of the competent authority under the provisions of the Mines and Minerals (Development and Regulation) Act, 1957, along with the statutory rules enacted thereunder. This authority is tasked with formulating appropriate policies to regulate the granting of mining leases for diverse mineral resources vested in the state.
(iii) Minerals falling outside the ambit of Section 3(e) are under the exclusive regulatory jurisdiction of the Union of India. The Union of India is entrusted with the responsibilities outlined in the Mines and Minerals (Development and Regulation) Act, 1957, concerning the regulation of mining leases. Decisions T.M.R., J 11 Crl.P.No.8756 of 2023 made by the Union of India in this regard serve as the basis for consequential determinations by the state in the grant of mining leases.
(iv) With respect to minor minerals, such as sand, not explicitly designated for exclusive control by the Union, the state has delegated regulatory authority under Section 15 of the MMDR Act, 1957. Before 2014, the statutory rules governing the issuance of mining leases for sand were governed by G.O.Ms.No.186, dated 17.12.2013. These rules encompassed the regulation of stream/river sand extraction and disposal, the introduction of allotment through draw of lots, and the corresponding obligations on allottees. In 2014, G.O.Ms.No.94, dated 28.08.2014, was issued as part of a cabinet decision, transferring the control of sand reaches in the state to M/s. APMDC. Subsequently, these reaches were to be allotted to District/Mandal MahilaSamakhyas. The procedures and processes, along with consequential amendments to statutory rules, were implemented following the committee's recommendations supported by the Cabinet. A corresponding statutory amendment to the rules was introduced in G.O.Ms.No.95, dated 28.08.2014, in alignment with the sand policy outlined in G.O.Ms.No.94, dated 28.08.2014.
(v) The sand policy was reviewed in 2016 based on the Cabinet Sub committee's recommendations, approved by the Cabinet, and notified in G.O.Ms.No.19, dated 15.01.2016. The policy provided for price discovery through tender-cum-E-auction process for the stated purpose of securing Sand at an affordable price. Consequential amendment to the statutory rules, consistent with the revised sand policy notified in T.M.R., J 12 Crl.P.No.8756 of 2023 G.O.Ms.No.19, dated 15.01.2016, was issued in G.O.Ms.No.20, dated 15.01.2016.
(vi) Based on the purported review of the sand policy within two months of issuing the G.O.Ms.No.19 & 20, dated 15.01.2016, Memo No.3066/M.II (1)/2016-3, dated 04.03.2016, was issued indicating the change in the existing sand policy and permitting the extraction of "free sand" from 02.03.2016 and necessary instructions were communicated to District Collectors. G.O.Ms.No.43, dated 06.04.2016, was issued, effectuating the government's decision to provide free Sand. In the meantime, the statutory amendment to rule 9(B) was shown to have been issued in G.O.Ms.No.35, dated 14.03.2016 and G.O.Ms.No.42, dated 29.03.2016, as regards penalties to be imposed.
17. The Respondent/State contends that the free sand policy was made within two months of the earlier cabinet decision without adherence to the procedures and policy, without public interest, and prior knowledge of loss to the State exchequer. The decision does not emanate from any cabinet decision, and a memorandum for the cabinet is in the record for the decision.
18. The material placed does not explicitly disclose by giving the particulars of business rules which were not followed. However, the Cabinet resolution in the meeting held on 02.03.2016 is placed by the Respondent- State, which reads as follows:
The Secretary (Mines) presented the salient points of the proposed sand policy to the Council of Ministers for their valuable advice. The T.M.R., J 13 Crl.P.No.8756 of 2023 sand issue was discussed at length by the Council of Ministers, and the following points have emerged and been resolved as follows:
Sand shall be made available to the public without charging any fee from today, i.e., 2nd March 2016.
19. The Respondent-State further asserts that the policy underwent an abrupt change, allegedly with the clear intention of bestowing unlawful pecuniary gains upon certain individuals. The Cabinet resolution and memo No.3066/M were submitted as evidence. Memo No.3066/M-II(1)/2016-3, dated 04.03.2016, on record, indicates that the Government reviewed the sand policy initially announced in G.O.Ms.No.19, 20 Industries & Commerce Department, dated 15.01.2016. The decision was made to alter the policy, stipulating that sand would be provided to the public without fees from 02nd March 2016. Additionally, existing sand reaches with environmental clearance would be opened for free excavation and distribution within state limits. The Joint Collector was assigned the responsibility of obtaining all necessary clearances from competent authorities and notifying feasible sand-bearing areas through a designated website. Furthermore, the maintenance of ramps and access roads would be overseen by the Executive Engineer of the Panchayat Raj Department, funded either through the NREGP or the department's budget.
20. The Cabinet Resolution on Sand also addressed the strict handling of violations and emphasized rigorous oversight of sand reaches and transportation. It granted authorization to the existing Cabinet Sub T.M.R., J 14 Crl.P.No.8756 of 2023 Committee to examine and finalize the modalities of the revised sand policy, with periodic reviews scheduled.
21. Upon examination of the Cabinet Resolution and Memo No.3066/M.II(1)/2016-3, dated 04.03.2016, there is currently no prima facie evidence indicating an arbitrary change in the policy without a thorough assessment of its pros and cons. However, it is alleged by the Respondent- State that no limits on the quantities to be excavated were provided. The Cabinet Resolution and Memo No.3066/M.II(1)/2016-3, dated 04.03.2016, show that Sand quarrying in prohibited areas such as reaches where no EC permission is available or within 500 mts from bridges, culverts, groundwater structures, tube wells, drinking water bore wells, irrigation structures, State & National highways, Railway lines etc., as per APWALT Rules and EC conditions; no stocking of Sand more than the requirement for own construction is permitted.
22. The report alleges that individuals gained pecuniary benefits under the guise of the "Free Sand Policy" and that there were corrupt or illegal motives behind its implementation. However, the investigating agency has yet to collect relevant material in this regard. The report acknowledges the necessity of an investigation to determine whether the policy and its execution were influenced by corrupt and illegal means employed by decision-makers, including public servants, at the relevant juncture. The report suggests that the investigation is yet to be conducted to come to a T.M.R., J 15 Crl.P.No.8756 of 2023 prima facie conclusion that the Free Sand Policy was adopted based on corrupt and illegal means.
23. The primary objective of the Free Sand Policy is to provide assistance to economically disadvantaged families for their construction needs, albeit at a cost to the State Exchequer. A thorough examination of the Cabinet decision, corresponding Government Orders (GOs), and memos does not indicate a scheme designed to favor specific individuals, associations, or political figures associated with the ruling parties, including MLAs and others in power. Despite allegations in the report suggesting the division of sand reaches and mineral reserves among political functionaries of the ruling party, it fails to provide specific details regarding the individuals benefiting from the Free Sand Policy.
24. This Court recognizes that when a government formulates a policy, administrative bodies and authorities responsible for administrative matters implement decisions aimed at executing government policies. Even if there were administrative lapses in controlling illegal mining, the absence of material evidence may exempt policymakers from liability. Contrary to the allegations, counter-arguments and the contents of the report reveal that between 2016 and 2019, the State registered over 1000 cases of illegal sand mining, resulting in a penalty collection exceeding Rs. 40 crores. This prima facie indicates the government's efforts to combat illegal mining during that T.M.R., J 16 Crl.P.No.8756 of 2023 period, contradicting the prosecution's claim of governmental encouragement of such activities.
25. In Common Cause, A Registered Society V. Union of India and Others8, the Hon‟ble Supreme Court held that:
160. The Court also appears to have invoked the "Doctrine of Public Trust", which is a doctrine of environmental law under which the natural resources such as air, water, forest, lakes, rivers and wildlife are public properties "entrusted" to the Government for their safe and proper use and proper protection. Public Trust Law recognises that some types of natural resources are held in trust by the Government for the benefit of the public. The "Doctrine of Public Trust" has been evolved to prevent unfair dealing with or dissipation of all natural resources. This doctrine is an ancient and somewhat obscure creation of Roman and British law that has recently been discovered by environmental lawyers searching for a theory broadly applicable to environmental litigation.
X
162. The matter may be examined from another angle. X
166. Applying the principles laid down above, the petitioner does not, on becoming the Minister of State for Petroleum and Natural Gas, assume the role of a "trustee" in the real sense, nor does a "trust" come into existence in respect of the government properties. X
168. A trust contemplated by Section 405 would arise only when there is an entrustment of property or dominion over property. There has, therefore, to be a property belonging to someone which is entrusted to the person accused of the offence under Section 405.
The entrustment of property creates a trust which is only an obligation annexed to the ownership of the property and arises out of a confidence reposed and accepted by the owner. This is what has been laid in State of Gujarat v. JaswantlalNathalal [AIR 1968 SC 700 : (1968) 2 SCR 408]. In Rashmi Kumar v. Mahesh Kumar Bhada [(1997) 2 SCC 397: 1997 SCC (Cri) 415], the essential ingredients for establishing the offence of criminal breach of trust, as defined in 8 1999) 6 SCC 667 T.M.R., J 17 Crl.P.No.8756 of 2023 Section 405, have been spelt out as follows: (SCC pp. 406-07, para
13) "(i) entrusting any person with property or with any dominion over property; (ii) the person entrusted dishonestly misappropriating or converting to his own use that property; or dishonestly using or disposing of that property or wilfully suffering any other person so to do in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract made touching the discharge of such trust."
X
172. The word "property", used in Section 409 IPC, means the property which can be entrusted or over which dominion may be exercised. This Court in R.K. Dalmia v. Delhi Admn. [AIR 1962 SC 1821 : (1963) 1 SCR 253] held that the word "property", used in Section 405 IPC, has to be interpreted in a wider sense as it is not restricted by any qualification under Section 405. It was held that whether an offence defined in that section could be said to have been committed would depend not on the interpretation of the word "property" but on the fact whether that particular kind of property could be subject to the acts covered by that section. That is to say, the word "property" would cover that kind of property with respect to which the offence contemplated in that section could be committed."
26. The Petitioner contends that there is no allegation that there was any property, either entrusted or kept under the domain of the Petitioner and that he misappropriated the same in any of the modes mentioned in Sections 405 and 409 of IPC; there is no prima facie case making out an offence under section 409 of IPC against the Petitioner.
27. In light of the principles laid down in the decisions cited, it cannot be said that there is no substance in the Petitioner‟s contention. However, as the investigation is pending, at this stage, this Court is not supposed to come to a definite conclusion in this regard.
T.M.R., J 18 Crl.P.No.8756 of 2023
28. It is the submission of the learned Senior counsel for the Petitioner that the prior demand acceptance of any pecuniary advantage or valuable thing for himself or for any other person must be satisfied before attracting the offence mentioned above.
29. It is the Prosecution‟s case that the matter needs to be investigated for abuse of office by the Petitioner, loss to the state exchequer, compromise to the public interest. As the investigation is pending, this Court is not inclined to express any opinion regarding the applicability of the penal provisions and the foisting of false cases for political reasons. However, this Court is of the view that a prima facie case is yet to be established.
30. Upon examination of the report, it is evident that the Respondent- State has not gathered any direct or circumstantial evidence supporting the allegation of a conspiracy to defraud the State Exchequer through the introduction of the Free Sand Policy. The Free Sand Policy, as per the report, essentially aligns with social policy objectives, seeking to provide sand to the public without levying any fees, consistent with the directive principles of state policy.
31. The primary reliance of the Respondent-State is on the Order dated 04.04.2019 from the Principal Bench of the Honorable National Green Tribunal in Original Application No.935 of 2015. The order notes the occurrence of illegal mining in violation of tribunal directives, highlighting the failure of the State to take action, either by default or through the actions of T.M.R., J 19 Crl.P.No.8756 of 2023 certain state functionaries who require identification and appropriate action. The order emphasizes the identification and accountability of individuals engaged in illegal mining, restoration of environmental damage on the "polluter pays principle," and directs the State of Andhra Pradesh to deposit an interim amount of Rs.100 crores with the CPCB within one month for subsequent recovery from the responsible parties, including colluding erring officers.
32. The examination of the orders does not indicate that illegal mining activity took place as a direct consequence of the Free Sand Policy. It remains the responsibility of the authorities to ensure the policy's implementation without facilitating illegal mining.
33. The failure of the implementing authority should not be attributed to the policymakers. It appears that despite the filing of numerous cases, illegal mining could not be effectively curbed, and as such, the Free Sand Policy cannot be held solely responsible for such lapses.
34. The record reveals that the Petitioner/A.2 was remanded to judicial custody on 10.09.2023 in Cr. No.29 of 2021 at the CID Police Station, Amaravati, Andhra Pradesh. Interim bail on medical grounds was granted to the Petitioner as per the Orders in I.A.Nos.1 & 3 of 2023 in Crl.P.No.7951 of 2023 on 31.10.2023, and this interim bail was made absolute per Order dated 20.11.2023. It is noteworthy that the AP CID Police registered this T.M.R., J 20 Crl.P.No.8756 of 2023 crime on 01.11.2023. The explanation provided for the delay is outlined in col.No.8 of F.I.R.No.19 of 2023 is as follows:
While examining the previous Sand policy documents for inviting the tenders, the complainant learned about the facts narrated in the report and, thereby, submitted the report.
35. The Respondent-State does not contest that it reviewed the Sand Policy after a change in government in 2019. When an elected government introduces a policy decision, such as the Free Sand Policy, it is within the purview of a succeeding government, elected through a democratic process, to reassess and potentially revise the policy based on the principles outlined in their election manifesto. Consequently, the previous decision made by the erstwhile government can be duly reviewed by the subsequent government.
36. In State of T.N. v. National South Indian River Interlinking Agriculturist Assn9., the Hon‟ble Supreme Court held that:
12. The respondent has placed reliance on BALCO Employees' Union v. Union of India [BALCO Employees' Union v. Union of India, (2002) 2 SCC 333]. A Constitution Bench considered a challenge to the decision of the Union of India to disinvest and transfer 51% shares of Bharat Aluminium Company Limited. Rejecting the challenge, it was observed that the wisdom of economic policies is not subject to judicial review (SCC pp. 381-82, paras 92-93) "92. In a democracy, it is the prerogative of each elected Government to follow its own policy. Often, a change in Government may result in a shift in focus or change in economic policies. Any such change may adversely affect some vested interests. Unless any illegality is committed in the execution of the policy or the same is contrary to law or mala fide, a decision bringing about change cannot per se be interfered with by the Court.9
(2021) 15 SCC 534 T.M.R., J 21 Crl.P.No.8756 of 2023
93. Wisdom and advisability of economic policies are ordinarily not amenable to judicial review unless it can be demonstrated that the policy is contrary to any statutory provision or the Constitution. In other words, it is not for the courts to consider the relative merits of different economic policies and consider whether a wiser or better one can be evolved. For testing the correctness of a policy, the appropriate forum is Parliament and not the courts. Here, the policy was tested, and the motion was defeated in the Lok Sabha on 1-3-2001."
37. The Respondent-State has not asserted that it only initiated a review of the Free Sand Policy following the registration of the case in F.I.R.No.19 of 2023. The Petitioner's concern is the registration of this case immediately after his release on interim bail, specifically on 31.10.2023. Despite any potential merits of a decision made by the earlier government for the benefit of the public and society at large, the report from the Director of the Mining and Geology Department highlights instances of illegal mining, as noted by the National Green Tribunal. Even if there were lapses in policy implementation, the report does not elucidate how policymakers could be held accountable.
38. The mere fact that the earlier government belonged to a different political dispensation than the present one does not warrant suspicion unless there is prima facie evidence supporting such skepticism. This Court recognizes that an unexplained delay of three-and-a-half years, as evident in the present case, can be a valid consideration for granting anticipatory bail T.M.R., J 22 Crl.P.No.8756 of 2023 to the Petitioner, aligning with observations in the case of State of Punjab v. Davinder Pal Singh Bhullar10.
39. In Siddharam Satlingappa Mhetre case as referred to supra, the Hon‟ble Apex further held as follows:
113. Arrest should be the last option, and it should be restricted to those exceptional cases where arresting the accused is imperative based on the facts and circumstances of that case. The Court must carefully examine the entire available record, particularly the allegations directly attributed to the accused, which are corroborated by other material and circumstances on record.
40. The existence of the power to arrest is one thing; the justification for exercising it is quite another. Apart from the power to arrest, the police officers must be able to justify the reasons. No arrest can be made in a routine manner on a mere allegation of the commission of an offence made against a person. It would be prudent and wise for a police officer that no arrest is made without reasonable satisfaction reached after some investigation as to the genuineness of the allegation. (In this regard, a reference can be made to Arnesh Kumar V. State of Bihar.11)
41. This Court views the power to authorise detention as a very solemn function. It affects the liberty and freedom of citizens and needs to be exercised with great care and caution. The attitude to arrest first and then proceed with the rest is despicable. It has become a handy tool for police officers who lack sensitivity or act with oblique motives. 10
(2011) 14 SCC 770 11 (2014) 8 SCC 273 T.M.R., J 23 Crl.P.No.8756 of 2023
42. Notably, the petitioner presently holds the position of the opposition leader and lacks direct or indirect control over the concerned department. There is no reasonable apprehension that the petitioner may influence witnesses or tamper with the evidence. The petitioner highlights that even in the remand report filed by the same investigation agency in Cr.No.29 of 2021, it is explicitly acknowledged that the petitioner is not a flight risk, and the petitioner is afforded Z+ security by the National Security Guards (NSG) under the Central Government's auspices. Despite the alleged offenses occurring from 2015 to 2019, during the petitioner's tenure as Chief Minister, there is no indication that any documents pertaining to the Free Sand Policy have been tampered with. Granting anticipatory bail to the petitioner would not impede the ongoing investigation, given that the relevant documents are already in the custody of the current government. Considering the nature of accusation made against the Petitioner, this Court finds no force in the Respondent‟s contention that the custodial interrogation of the Petitioner is required to conduct further investigation.
43. No material has been presented to demonstrate that the petitioner personally benefited from the Free Sand Policy decision or conferred any advantage to individuals, associations or political figures associated with the ruling parties including MLAs and others in powers as alleged. The contents of the report suggest a need to collect prima facie evidence to establish the petitioner's commission of the alleged offence. After careful consideration of T.M.R., J 24 Crl.P.No.8756 of 2023 the material, this Court is satisfied that reasonable grounds exist to grant anticipatory bail.
44. As a result, the petition is allowed by granting anticipatory bail to the petitioner subject to his surrender before the Investigating Officer concerned within one (1) week from today. On such surrender, the petitioner/accused shall be released on bail on his furnishing a personal bond for Rs.1,00,000/- (Rupees One Lakh Only) with two sureties for a like sum each to the satisfaction of the concerned Investigating officer. Upon his release, the Petitioner is mandated to adhere to the following conditions:
(a) The Petitioner is required to appear before the Investigating Officer whenever his presence is necessary, with a minimum of 48 hours' notice provided for his appearance.
(b) The Petitioner shall cooperate with the investigation, and he shall make himself available for interrogation by a police officer as and when required, and he shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case to dissuade his from disclosing such facts to the Court or any police officer.
(c) The Petitioner should abstain from making any public comments related to this case.
45. It is explicitly clarified that the observations made in this order are preliminary and pertain solely to the decision on the present application without indicating a stance on the case's merits. The Investigating Agency is T.M.R., J 25 Crl.P.No.8756 of 2023 affirmed to have the freedom to investigate without being influenced by the observations in this Order.
As a sequel, miscellaneous petitions pending, if any, in this criminal petition shall stand closed.
______________________________ JUSTICE T. MALLIKARJUNA RAO Date: 10.01.2024 MS/SAK T.M.R., J 26 Crl.P.No.8756 of 2023 THE HON'BLE SRI JUSTICE T. MALLIKARJUNA RAO CRIMINAL PETITION No.8756 OF 2023 Date: 10.01.2024 SAK