Karnataka High Court
Sri Ritesh Milapchand Jain vs The State By Central Bureau on 14 February, 2014
Author: R.B Budihal
Bench: R.B Budihal
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 14TH DAY OF FEBRUARY 2014
BEFORE
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
CRIMINAL PETITION No.7455/2013
c/w.
CRIMINAL PETITION No.7459/2013
In CRIMINAL PETITION No.7455/2013
BETWEEN:
Sri. Ritesh Milapchand Jain,
S/o. Milapchand Jain,
Aged about 34 years,
Chief Executive Officer,
Deccan Mining Syndicate
Pvt., Ltd.,
Bellary-574 212. .. PETITIONER
(By Sri. Udaya Holla, Sr. Counsel for
Sri. Manmohan P.N., Adv.)
AND:
The State by Central Bureau
Of Investigation,
Anti-Corruption Branch,
Bangalore-560 024. .. RESPONDENT
(By Sri. C.H. Jadhav, Senior Counsel and SPP)
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In CRIMINAL PETITION No.7459/2013
BETWEEN:
Rajendra Kumar Jain,
S/o. Late Sumeral Manmal Jain,
Aged about 48 years,
Managing Director,
M/S Deccan Mining
Syndicate Pvt. Ltd., Bellary,
Flat No.31,
Kalpatharu Apartments,
Madhav Nagar,
Race Course Road,
Bangalore-560 001. .. PETITIONER
(By Sri. Ashok Haranahalli, Senior Counsel)
AND:
State
By Inspector of Police,
CBI/ACB,
At Bangalore-560 032,
Represented by its
Speical Public Prosecutor. .. RESPONDENT
(By Sri. C.H. Jadhav, Senior Counsel and SPP)
These Criminal petitions are filed under Section 439 of
the Cr.P.C. praying to enlarge the petitioners on bail in R.C.
No.19-A/2011 for the offences punishable under Sections
120B, 379, 420, 427 and 447 of IPC and Section 13(2) read
with Section 13(1)(d) of P.C. Act, Section 26 of the Indian
Forest Act and Section 21 read with Section 4(1), 4(1)(A) and
23 of the Mines and Minerals (Development and Regulation)
Act, 1957.
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These petitions having been heard and reserved for
orders, coming on for pronouncement of orders, this day, the
Court made the following:
ORDER
Since these two petitions are filed in respect of the same R.C.No.19(A)/2011 and common question of law and facts are involved in both petitions, they are taken up together to dispose of them by common order.
2. These petitions are filed by the petitioners-accused Nos.3 and 1 respectively in the respective petitions under Section 439 of Cr.P.C. seeking their release on bail of the offences punishable under Sections 120B, 379, 411, 420 427, 447, 468 and 471 of IPC and Section 13(2) read with 13(1)(d) of Prevention of Corruption Act, Section 26 of the Indian Forest Act and Section 21 read with Section 4(1), 4(1)(A) and 23 of the Mines and Minerals (Development and Regulation) Act, 1957, registered in R.C. 19(A)/2011 and pending in Spl. C.C. NO.165/2013.
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3. Brief facts of the case as mentioned in both the petitions are that petitioner in Crl.P. No.7455/2013 is - accused No.3. He joined M/s. Deccan Mining Syndicate Private Limited (for short 'M/s.DMSPL') as a Manager (Logistics) in the year 2003-04 and he was in charge of the company's logistics such as obtaining permits from the DMG Office, indenting, booking rakes in railway, etc. The petitioner in Crl.P. No.7459/2013 is accused No.1. He joined as the Managing Director M/s.DMSPL on 1.5.2005. Petitioner-accused No.3 was promoted as General Manager (Logistics) in the year 2008-09 and thereafter, in the year 2011, he was elevated to the post of CEO. In fact, in the year 2011, the mining activities were closed and it is only thereafter, the petitioner-accused No.3 was elevated as the CEO of the Company. He is only an employee of the Company and he is not responsible for the acts of the Company. M/s.DMSPL was incorporated on 25.9.1991 with Sri. S.M. Jain as its Managing Director. During this period, the petitioner-accused No.1 was neither a Director nor was he in charge of the affairs of M/s. Deccan Mining Syndicate Private Limited.
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4. The Hon'ble Supreme Court vide order dated 23.9.2011 passed in Special Leave to Appeal (Civil) Nos.7366-7367/2010 directed the CBI to investigate into the illegal mining. Hence, the respondent CBI registered the case for the above said offences against the petitioners- accused Nos.3 and 1 and the other accused persons. The petitioners were arrested and they are in judicial custody. They extended full co-operation to the investigating agency through out investigation.
5. I have heard the learned Senior Counsel appearing for the petitioners-accused Nos.3 and 1 respectively and the learned Senior Counsel and Special Public Prosecutor appearing for the respondent-CBI.
6. Learned Senior Counsel for the petitioner-accused No.3, during the course of the arguments, submitted that the only allegation is that petitioner-accused No.3 transported the iron ore without obtaining the prior permission with the Director, Mines and Geology. Learned 6 Senior Counsel submitted that the petitioner-accused No.3 has already applied seeking permit and before it was granted, he transported the iron ore, but ultimately, the permit was issued as requested by him. Hence, the question of committing the alleged offence by accused No.3 does not arise at all. The learned Senior Counsel draws the attention of this Court to the order dated 3.2.2010 passed in W.P. No.35167/2009 and submitted that this Court has held that even if the materials are transported without permit and without paying royalty, the same does not amount to criminal offence and the only requirement would be payment of royalty. He further submitted that accused Nos.4, 5 and 7 have already been granted bail against whom the same allegations were made and hence, on the ground of parity also, the petitioner is entitled to be released on bail.
7. The learned Senor counsel submitted that the offences in question are alleged to be for the period 1980 to 1999. The petitioner-accused No.3 was born on 5.7.1979 and it is nobody's case that he was working for the period 1980-1999. He joined the company only in the year 2003-04. 7 Hence, he submitted that these aspects were not at all considered by the Sessions Judge while dealing with the bail application and the Sessions Judge treated the petitioner- accused No.3 also on the same line with that application of accused No.1 and wrongly rejected the application. It is further submitted that petitioner-accused No.3 is innocent and he has not at all committed any offence and he has been falsely implicated in the case. It is submitted that it is not the magnitude of the amount said to have been involved in the case that is to be looked in to while considering the bail application, but the Court has to see the offences alleged. Learned Senior Counsel in support of his contentions relied upon the following decisions filed along with memo dated 6.1.2014:
1. (2012)1 SCC 40 - Sanjay Chandra Vs. central Bureau of Investigation
2. The order dated 23.9.2013 passed by this Court in Crl.P. No.4853/2013.
3. The order dated 23.9.2013 passed by this Court in Crl.P. No.4597/2013.8
8. Leaned Senior Counsel appearing for the petitioner-
accused No.1, during the course of the arguments, submitted that the allegation of the prosecution so far as petitioner-accused No.1 is that accused No.1 has changed the mining area and extracted mines by encroaching the area belonging to the other companies. The learned Senior Counsel submitted that on 19.5.1966, the State Government granted mining lease ML No.636 in favour of M/s. Motilal J. Boal for mining in an extent of 50 acres of land situated at Kammatheravu village, Sandul Taluk, Bellary for a period of 20 years. The State Government again on 18.10.1972 granted mining lease No.ML 1111 in favour of NMDC over an extent of 1600 acres of land in Kumaraswamy and Subbarayanahallil villages, Sandul Taluk, Bellary for a period of 30 years. The learned Senior Counsel further submitted that the State Government issued a notification dated 30.6.1980 sanctioning transfer of ML No.636 in favour of M/s. Deccan Mining Syndicate (DMC), Bellary, which was a partnership headed by S.M Jain. On 26.11.1985, M/s. Deccan Mining Syndicate surrendered an extent of 3 acres of forest land out of total extent of 50 acres comprised under 9 ML No.636. The mining lease was renewed in favour of M/s. Deccan Mining Syndicate by executing a lease deed with retrospective effect from 20.5.1986 vide ML No.2080 over an extent of 47 acres of revenue land for a period of 10 years, which was said to expire on 20.5.1996.
9. The learned Senior Counsel for petitioner-accused No.1 further submitted that on 25.9.1991, M/s. Deccan Mining Syndicate Private Limited (M/s.DMSPL) was incorporated and Sri. S.M. Jain was the Managing Director of the said Company. The learned Senior Counsel submitted that on 27.3.1998, M/s. NMDC filed W.P. No.10335/1998 seeking a direction to carryout survey of area comprised under ML No.1111 and sought for a direction to the State Government not to renew the mining lease of Deccan Mining Syndicate comprised under ML No.2080. Therefore, on 8.2.1999, the State Government executed and registered mining lease deed bearing ML No.2080A in favour of M/s.DMSPL as a second installment of first renewal over an extent of 47 acres for a further period of 10 years from 20.5.1996. On 20.4.2005, the Managing Director of 10 M/s.DMSPL Sri. S.M. Jain passed away. On 1.5.2005, Rajendra Jain i.e, petitioner-accused No.1 took over the charge as Managing Director of M/s.DMSPL. On 15.7.2006, the State Government renewed the mining lease in favour of M/s.DMSPL for a period of 20 years w.e.f. 20.5.2006 vide ML No.2525 which is said to expire on 18.5.2026.
10. The learned Senior Counsel for the petitioner accused No.1 submitted that this Court in W.P. No.10335/1998 by its order dated 31.3.2008 has upheld the renewal of the ML No.2080, 2080A and 2525 with sketches in favour of the M/s.DMSPL in respect of the modified area by specifically observing that there is no illegalities on the same and it has attained the finality. The learned Senior Counsel further submitted that the Hon'ble Supreme Court in W.P. (Civil) No.562/2011 passed an order dated 8.9.2011 with regard to certain illegal activities undertaken in Karnataka which was reflected in the report filed by the Joint Team according to the order of the Hon'ble Supreme Court dated 6.5.2011, wherein the Hon'ble Supreme Court had directed the Joint Team to conduct an investigation and 11 file report on the illegal mining activities in Karnataka. On the basis of the report filed by the Joint Team directing the CBI to conduct investigation, the Hon'ble Supreme court passed an interim order on 23.9.2011.
11. The learned Senior Counsel submitted that the CEC filed a final report before the Hon'ble Supreme Court placing ML No.2525 (modified sketch area of M/s. DMSPL) in category 'C' since the encroachment of mining pit was 12% and hence, exceeded more than 10% of the mining lease area. The CEC recommended for cancellatin of all 51 'C' category mining leases including that of M/s.DMSPL. It is submitted that Writ Petition(C) No.562/2009 was disposed of by the Hon'ble Supreme Court. All 'C' Category leasing inlcuding ML No.2525 of M/s. DMSPL have been cancelled. It has clearly held that the boundary of the lease as determined on the basis of the survey conducted by the Joint Team constituted by the Supreme Court is approved and accepted. The Hon'ble Supreme Court has declared that all the investigations carried out by the CBI shall be brought to its logical conclusion. Hence, it is submitted by the learned 12 Senior Counsel that M/s. DMSPL has already been penalized by the Hon'ble Supreme Court for illegal mining operation by cancelling ML No.2525.
12. The learned Senior Counsel submitted that the regular bail application filed by accused No.1 came to be rejected on 22.7.2013 holding that the investigation is not completed. Crl.P. No.4757/2013 filed before this Court by accused No.1 came to be withdrawn with liberty to file a fresh bail application before the lower court since the investigation came to be completed after filing of the criminal petition. On 22.11.2013, the bail application filed by accused No.1 came to be rejected with observation that the Court cannot hold that accused No.1 is not responsible for the alleged illegal mining due to the absence of any direct evidence and it is too premature to hold that such an extraction is illegal. The learned Senior Counsel further submitted that now the investigation of the case is completed and the charge sheet has been filed. The petitioner accused No.1 is in custody, since from the date of the arrest. Trial of the case may take long time and accused No.1 is ready to 13 abide by the conditions to be imposed by the Court. The learned Senior Counsel submitted that perusing the entire charge sheet materials, there is no prima facie case to show commission of the alleged offence by accused No.1. Hence, by imposing reasonable conditions, accused No.1 may be admitted to bail.
13. In support of his contentions, learned Senior Counsel appearing for the petitioner-accused No.1 relied upon the following decisions filed along with a memo dated 23.1.2014, which are as follows:
1. Order dated 28.11.2011 passed in Bail Application No.1565/2011 by the Hon'ble High Court of Delhi.
2. AIR 2012 SC 949 - Dipak Shubhashchandra Mehta vs. CBI and another.
3. Order dated 12.08.2011 passed in W.A.No.1134-35/2008 by the Hon'ble High Court of Karnataka.
14. As against this learned Special Public Prosecutor appearing for the respondent-CBI, during the course of the arguments, submitted that the investigating officer has 14 recorded the statements of witnesses during investigation.
The materials collected during investigation go to show the involvement of the petitioners-accused Nos.3 and 1 also in the commission of the alleged offences. He submitted that the other accused persons who were released on bail are the public servants and their presence can be secured without any difficulty during the course of the trial of the case. Hence, the ground of parity is not made applicable to the petitioners. He further draws the attention of this Court to the statement of the witnesses recorded by the investigating officer and submitted that the petitioners along with the other accused persons involved in illegal and unauthorized mining activities and thereby caused huge loss to the State exchequer. Hence, the learned SPP submitted that the petitioners are not entitled to be released on bail.
15. In support of his contention, the learned SPP has relied upon the decisions of the Hon'ble Supreme Court and also produced the file containing the investigation materials collected during investigation.
1. (2013)7 SCC 466 - Nimmagadda Prasad Vs. Central Bureau of Investigation 15
2. (2013)7 SCC 439 - Y.S. Jagan Mohan Reddy Vs. Central Bureau of Investigation
3. (2011)5 SCC 340 - Central Bureau of Investigation, Hyderabad Vs. B. Ramaraju and others.
In Nimmagadda Prasad's case (supra), a Division Bench of the Hon'ble Supreme Court has observed as under:
" Unfortunately, in the last few years, the country has been seeing an alarming rise in white-collar crimes, which has affected the fiber of the country's economic structure. Incontrovertibly, economic offences have serious repercussions on the development of the country as a whole. In State of Gujarat vs. Mohanlal Jitamalji Porwal and Anr. (1987) 2 SCC 364 this Court, while considering a request of the prosecution for adducing additional evidence, inter alia, observed as under:-
' 5.....The entire Community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless 16 of the consequence to the Community. A disregard for the interest of the Community can be manifested only at the cost of forfeiting the trust and faith of the Community in the system to administer justice in an even handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the national economy and national interest....' While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations. It has also to be kept in mind that for the purpose of granting bail, the Legislature has used the words "reasonable grounds for believing" instead of "the evidence"
which means the Court dealing with the grant of bail can only satisfy it as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not 17 expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt.
28) Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offence having deep rooted conspiracies and involving huge loss of public funds needs to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country.
29) Taking note of all these aspects, without expressing any opinion on the merits of the case and also with regard to the claim of the CBI and the defence, we are of the opinion that the appellant cannot be released at this stage, however, we direct the CBI to complete the investigation and file charge sheet(s) as early as possible preferably within a period of four months from today. Thereafter, the appellant is free to renew his prayer for bail before the trial Court and if any such petition is filed, the trial Court is free to consider the prayer for bail independently on its own merits without being influenced by dismissal of the present appeal.
30) With the above direction, the appeal is dismissed."
18The Hon'ble Supreme Court in Y.S. Jagan Mohan Reddy's case (supra) has held as under:
" 14) On going into all the details furnished by the CBI in the form of Status Report and the counter affidavit dated 06.05.2013 sworn by the Deputy Inspector General of Police and Chief Investigating Officer, Hyderabad, without expressing any opinion on the merits, we feel that at this stage, the release of the appellant (A-1) would hamper the investigation as it may influence the witnesses and tamper with the material evidence. Though it is pointed out by learned senior counsel for the appellant that since the appellant is in no way connected with the persons in power, we are of the view that the apprehension raised by the CBI cannot be lightly ignored considering the claim that the appellant is the ultimate beneficiary and the prime conspirator in huge monetary transactions.
15) Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offence having deep rooted conspiracies and involving huge loss of public funds needs to be 19 viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country.
16) While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations.
17) Taking note of all these facts and the huge magnitude of the case and also the request of the CBI asking for further time for completion of the investigation in filing the charge sheet(s), without expressing any opinion on the merits, we are of the opinion that the release of the appellant at this stage may hamper the investigation. However, we direct the CBI to complete the investigation and file the charge sheet(s) within a period of 4 months from today.
Thereafter, as observed in the earlier order dated 05.10.2012, the appellant is free to renew his prayer for bail before the trial Court and if any 20 such petition is filed, the trial Court is free to consider the prayer for bail independently on its own merits without being influenced by dismissal of the present appeal.
18) With the above observation, the appeal is dismissed. "
The Hon'ble Supreme Court in B. Ramaraju's case (supra), while rejecting bail granted to the respondents-accused therein, has held as under:
"Leave granted.
We have heard the learned counsel for the parties at length.
This order will dispose of all these criminal appeals filed by the Central Bureau of Investigation against the orders dated 20.7.2010 and 18.08.2010 passed by the High Court of Andhra Pradesh at Hyderabad by which the respondents herein (accused Nos.1, 2, 3, 7, 8 &
9) were granted bail.
According to the allegations of the
appellant, the respondents - accused are
involved in one of the greatest corporate scams of the commercial world. It has caused a financial storm throughout the country and the 21 world over. Lakhs of shareholders and others have been duped and the corporate credibility of the nation has received a serious setback. We are deliberately refraining from making a detailed observation regarding the conduct of the respondents - accused because the trial is still pending and we do not want the trial to be prejudiced in any manner.
Ordinarily, this Court would be slow in cancelling the bail already granted by the High Court but in the extraordinary facts and circumstances of these cases, we are of the considered view that the impugned orders passed by the High Court granting bail to the respondents, cannot be sustained in law and the same are accordingly set aside.
The respondents - accused are directed to 3 surrender on or before 10th November, 2010, otherwise the appellants shall take appropriate steps in accordance with law.
We are informed that charges have been framed on 25th October, 2010 and trial is scheduled to commence with effect from 2nd November, 2010. In these circumstances, we deem it appropriate to direct the Trial Court to take up the case on day- to-day basis and conclude the trial of this case as expeditiously as 22 possible, in any event, on or before 31st July, 2011.
The Trial Court would avoid granting any undue adjournments, unless it becomes absolutely imperative.
The Trial Court is directed to decide the case without being influenced by any observations made by the High Court or by this Court in this order. The parties are directed to examine only material and most essential witnesses and fully cooperate with the Trial Court.
The accused shall be produced before the Trial Court on time, on every date of hearing, unless exempted by the orders of the Court.
The High Court of Andhra Pradesh is requested not to transfer the notified judicial officer until the trial is concluded.
In case, the trial is not concluded for any reason before 31st July, 2011, the respondents would be at liberty to approach the Trial Court for grant of bail. We have no doubt that the concerned Court would decide the bail application, if filed, expeditiously in accordance with law. With these observations and directions these appeals are disposed of. "
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Hence, the learned SPP sought to reject the these petitions.
16. I have perused the averments made in the bail petitions and the charge sheet materials produced in the cases. I have also perused the decisions relied upon by learned Senior Counsel appearing for the petitioners-accused Nos.3 and 1 and also the learned SPP referred to supra.
17. The allegations made against petitioners-accused Nos.3 and 1 and the other accused persons are that there have been shift of various areas that were originally granted in favour of M/s.DMSPL and the area that was rented at the time of second installment of first renewal of the mining lease No.2850A in favour of DMS is illegal and contrary to the mining activity. The mining lease areas constituted offence of illegal mining. It is also alleged by the prosecution that the transport permit/mineral dispatch permits to a quantity of 1,47,095 MTs and 11,070 MTs of iron ore had been obtained by accused No.3 in the above case on 7.9.2007. The charge against the petitioners-accused Nos.3 24 and 1 along with other accused persons has been filed. As per the charge at Annexure-1 it is mentioned as under:
" That Sri. Rajendra Kumar Jain (A-1), M/S Deccan Mining Syndicate Pvt. Ltd., (M/S DMSPL)(A-2), represented by its MD Shri Rajendra Kumar Jain, Shri Rithesh Milapchand Jain (A-3), CEO of M/S Deccan Mining Syndicate Pvt. Ltd., Bellary, Smt. Shamim Bhanu (A-4) the then Secretary of Commerce and Industries, Govt. of Karnataka, Bangalore, Shri Viswanathan (A-5) the then Principal Secretary, Department of Commerce and Industries, Govt. of Karnataka, Bangalore, Shri S.P. Raju (A-6), the then Deputy Director, Mines and Geology, Hospet, Govt. of Karnataka and Shri Ramakant. Y. Hullur (A-7) the then Circle Inspector of Police, Sandur Police station were parties to a criminal conspiracy hatched at Bangalore, Bellary, Hospet and other places in Karnataka during the period 1980-2010 to commit the offences of criminal conspiracy, cheating, theft of iron ore, changing the boundaries, criminal misconduct by the abuse of official position and in pursuance of the said conspiracy M/s DMSPL(A-2) represented by A-1 and A-3 has done illegal mining outside its lease area, and the accused public servants Smt. 25 Shameem Bhanu (A-4), Shri Viswanathan (A-5), Shri S.P. Raju (A-6), and Shri Ramakant Y. Hullur (A-7) fraudulently and dishonestly facilitated this illegal mining by way of illegally renewing the mining lease by changing the original sketch, issuing mineral dispatch permits without verifying the stocks and by not taking any action on the complaints preferred by M/S NMDC, by abusing their official position by corrupt or illegal means. By the above illegal iron ore mining, the state exchequer had suffered a wrongful loss to the tune of Rs.1232.395 Crores and corresponding wrongful gain to the accused persons. The aforesaid allegations are based on the following facts and circumstances. "
18. I have perused the order dated 31.3.2008 passed by this Court in W.P No.10335/1998 clubbed with W.P No.19766/2005 (GM-MM/S). W.P No.10335/1998 has been filed by National Mineral Development Corporation Ltd. against the State of Karnataka and three others. The relevant paragraphs of the said order reads as under:
" 2. M/s. National Mineral Development Corporation Ltd ('NMDC' for short)- the petitioner in W.P.No.10335/1998 though 26 initially had questioned the notification dated 29.1.1999 renewing the mining lease No.2080 in favour of M/s.Deccan Mining Syndicate Pvt. Ltd ('DMS' for short), has thereafter amended the petition to question the subsequent notification dated 13.6.2006 in renewing the mining lease in favour of DMS for 20 years from 20.5.2006. The grievance of NMDC is that the renewal made by shifting the original mining area would encroach on the area leased to NMDC under mining lease No.1111 dated 18.10.1972 which according to NMDC encircles the land leased to M/s.M.J.Boal in M.L.No.636 and thereafter transferred to DMS. According to them, though DMS are entitled to only 47 acres as per the initial lease and even though the subsequent renewal is to the extent of 47 acres, the renewal made by shifting the area from its original location is not sustainable. However, while challenging the same, they have chosen to go whole hog to contend that the renewal itself is contrary to Section 8(3) of the Mines and Minerals (Development & Regulation) Act ['the MM (D & R) Act' for short] read with Rule 24 of the said Rules.
23. For all the above said reasons, since the conclusion is that the lease of NMDC in 27 M.L.No.1111 cannot encircle the lease of DMS in M.L.No.636, 2080, 2080A and the present renewal, the prayer sought in W. P. No.10335/98 to quash the notification dated 13.6.2006 cannot be granted nor can the subsequent lease deed dated 15.7.2006 be declared as illegal. Similarly, the notification dated 04.04.2005 impugned in W.P.No.19766/05 need not be quashed in its entirety. However, it is to be clarified that sanction accorded for the first renewal in favour of NMDC for Iron ore over 647.50 hectares (1600 acres) is upheld, but not as per the sketch appended thereto. The sketch shall however be redrawn after measuring the extent of 1600 acres starting from the point 'A' at the end point of ML of M/s. SM & IO near Hari Shankar Temple."
19. It is also necessary to refer to order dated 3.2.2010 passed by the Division Bench of this Court in W.P. No.35167/2009 (GM-MM/S). The said petition is filed by M/s. MSPL Limited, a company registered under the provisions of the Companies Act, 1956 against the State of Karnataka and four others. Para No.10 of the said order reads as under:
28
10. Though we have held above that the petitioner company is entitled to transport the mined ore, to that extent they are entitled to be issued the MDPs, the only question which requires to be examined by the Director before issuing further direction is to determine the actual amount of royalty payable by the petitioner as on today and thereafter to take further action in the matter. No doubt, the learned senior counsel for the petitioner contended that the payment of the royalty is admitted in the affidavit of the Deputy Director but such admission is with reference to the quantity for which application was made.
However when there is allegation that excess quantity than what was permitted was transported, in respect of that there should be determination with regard to quantity and royalty thereon. That being the position, at this stage we do not find it fit to direct the 2nd respondent to issue the MDPs to the petitioner. However, we direct that the Deputy Director shall place all the materials based on which the claim has been made with regard to the royalty payable in respect of the iron ore which has already been despatched by the petitioner, before the Director. The Director shall thereafter provide opportunity to the petitioner and on 29 verifying the documents relating to the quantities despatched with reference to the railway receipts, arrive at a decision as to whether any royalty as claimed by the Deputy Director based on the documents is payable by the petitioner. Thereafter, the Director shall pass appropriate orders in this regard, that is to say, if any amount towards royalty is determined by the Director as payable by the petitioner, the Director shall direct the petitioner company to pay the same if it is in excess of the amount said to be held as advance or such other additional directions may be issued towards issue of MDP.
20. It is further necessary to refer to judgment of the Hon'ble Supreme Court passed in W.P (Civil) No.562/2009 dated 18.4.2013. The relevant portion of the said judgment reads as under:
" 5. We may now proceed to notice the relevant part of the two Reports of the CEC dated 3.2.2012 and 13.3.2012, as referred to hereinabove.
'IV. CLASSIFICATION OF LEASES IN
DIFFERENT CATEGORIES ON THE BASIS OF
THE LEVEL OF ILLEGALITIES FOUND
27. xxxxx
30
28. xxxxx
29. xxxxx
30. The "Category-C" comprises of leases
wherein (i) the illegal mining by way of (a) mining pits outside the sanctioned lease area have been found to be more than 10% of the lease area and/or (b) over burden/waste dumps outside the sanctioned lease areas have been found to be more than 15% of the lease areas and/or (ii) the leases found to be involved in flagrant violation of the Forest (Conservation) Act and/or found to be involved in illegal mining in other lease areas. The number of such leases comes to 49.
RECOMMENDATIONS (as modified by CEC by its Report dated 13.3.2012. Items 1 to IV of the Report dated 3.2.2012 stood replaced by Items A to I of the Report dated 13.3.2012 which are reproduced below along with Items V to XIV of the initial Report dated 3.2.2012)."
Item Nos.VI and VII of sub-para 30 reads as under:
" (VI) In respect of the mining leases falling in 'CATEGORY-C' (details are given at annexure-R-
11 to this Report) it is recommended that (a) such leases should be directed to be 31 cancelled/determined on account of these leases having been found to be involved in substantial illegal mining outside the sanctioned lease areas
(b) the entire sale proceeds of the existing stock of the iron ore of these leases should be retained by the Monitoring Committee and (c) the implementation of the R&R Plan should be at the cost of the lessee;
(VII) the area of the mining leases falling in the 'Category-C', after cancellation of the mining leases may be directed to be allotted/assigned through a transparent process of bidding to the highest bidder (s) from amongst the end users. The floor price for this purpose should be fixed on the basis of the market value of the permissible annual production of the iron ore during the period of the agreements/lease period. The iron ore produced from such mines should be used for captive use only and no sale/export will be permissible. The detailed schemes in this regard should be prepared and implemented after obtaining the permission of this Hon'ble Court."
So also para 39 of the said judgment is as under:
" We make it clear that we have not understood the above statement as an admission on the part of the Federation and it 32 is on a consideration of the totality of the facts placed before us that we accept the findings of the survey conducted by the Joint Team constituted by the orders of this Court and the boundaries of each of the leases determined on that basis. We further direct that in supersession of all orders either of the authorities of the State or Courts, as may be, the boundaries of leases fixed by the Joint Team will henceforth be the boundaries of each of the leases who will have the benefit of the lease area as determined by the Joint Team. All proceedings pending in any court with regard to boundaries of the leases involved in the present proceeding shall stand adjudicated by means of present order and no such question would be opened for re-examination by any body or authority."
21. The Hon'ble Supreme Court passed an order in Petitions for Spl. Leave to appeal to the Nos.7366-7367/2010 dated 23.9.2011. The relevant paragraphs are as under:
" (ii) The report of CEC shows that serious illegalities have taken place in respect of mining lease No. 2434 of M/s. Associated Mining Company ("M/s. AMC" for short). The Report shows serious illegalities having taken place in 33 respect of said mining lease by way of illegal grant of renewal of boundary pillars being completely different from the sanctioned lease sketch and quantity of iron ore shown to have been produced and dispatched from the mining lease being far in excess of the quantity that could have been physically produced and dispatched from the mining lease area. Besides illegalities having taken place in respect of the mining lease, as indicated above, other illegalities having taken place in respect of the mining lease, as indicated above, other illegalities are also enumerated in the said Report (see paras 8, 9 and 10 of the Report).
Such illegalities are also referred to in the Report dated 27.07.2011 of the Karnataka Lokayuktha.
On going through the Report of CEC, this Court prima facie is satisfied that at the relevant time there existed linkages between the alleged illegal mining in Bellary reserved forest falling in District Anantpur in Andhra Pradesh and the above mentioned illegalities in Bellary District of Karnataka. It appears from the Report that amongst various illegalities, one of the cited illegalities is that the material illegally extracted by M/s AMC was routed (transported) to the nearest Port in Vishakapatnam through District Anantpur in Andhra Pradesh. For this reason, 34 we want investigations into above alleged illegalities to be carried out by CBI.
On the next date of hearing, we also want to know from CBI the status of its investigations which CBI has undertaken in respect of a mining company, M/s. Oblapuram Mining Company Private Limited in Andhra Pradesh vide FIR No. RC 17A/2009-CBI (Hyderabad).
(iii) Vide the said Report of CEC, it is further pointed out to this court that massive illegal mining by a third party was being done in mining lease No. 1111 of M/s. NMDC. That, despite various complaints to the numerous authorities in the state of Karnataka by M/s. NMDC no steps were taken to prevent that third party from resorting to massive illegal mining in mining lease No. 1111 or M/s. NMDC till this court banned mining. These complaints were made against the third party, namely, M/s. Deccan Mining Syindicate ("DMS" for short) for encroaching into M/s. NMDC's mining lease area. Event the complaint lodged by M/s. NMDC against M/S. DMC to the Police Circle Inspector, Sandur on 10.07.2009 was interpolated (See Annexure R-1 to the Report being letter dated 15.09.2011 by M/s. NMDC Limited to CEC). We also want CBI to investigate the above illegalities 35 including encroachment by M/s. Deccan Mining Syndicate in the area leased out to M/s. NMDC.
In this order we have indicated broadly the scope of investigations to be carried out by CBI. There are number of other instances of illegal mining which are referred to in the Report of the Lokayukta. To begin with, we have focused on the alleged illegalities undertaken by these two companies. As and when reports are submitted by CEC alleging similar illegal mining activities and other illegalities committed by other companies, we shall look into those reports separately. Thus, further directions will be given from time to time by this Court.
(iv) CEC as well as the Joint Team have received a number of representations from the respective lease holders against the findings of the Joint Team. We hereby permit to consider these representations after hearing the parties. The findings of CEC in this regard thereafter should be placed before this court for appropriate directions.
Place the matter on 30th September, 2011 for consideration of the application to be filed by the State of Karnataka. "
22. I have further perused the decision relied upon by the learned Senior Counsel for petitioner-accused No.1 in 36 Bail Application No.1565/2011 dated 28.11.2011 passed by High Court of Delhi. The relevant paragraphs of the said judgment read as under:
25. I do not consider it necessary to refer to these judgments though, I have gone through the relevant pages cited during the course of submissions on account of the fact that I have already taken a view hereinabove that this Court being subordinate to the Supreme Court is bound by the order passed by the Apex Court in the facts of this very case. It will not be proper for this Court to dissect the order minutely and then try to make a distinction, so far as the case of the petitioner is concerned, when on the face of it there is none.
26. Seen in the light of the observations passed by the Apex Court in the aforesaid cases, I feel that it is not open to this Court to differentiate in the facts of Sanjay Chandra's case (supra) and the present case by invoking Section 409 IPC or Section 120 B IPC and say since the said offence carries life imprisonment, therefore, the benefit of the said judgment on the basis of parity cannot be extended to the petitioners. On the contrary, I feel that the case of the petitioners stands on a better footing because the offence of which they are charged 37 carries punishment of only five years in contrast to seven years which were imposable in the case of others.
27. The next point, which arises for consideration of the bail applications of the petitioners, is whether they will flee from the processes of law or they will be available for the purpose of facing the trial. As a matter of fact, it has never been the case of the prosecuting agency/CBI that so far as the petitioners are concerned, they are likely to flee from the processes of law. Almost all the accused persons have roots in the society, though living in different parts of the country with varied interest, therefore, there is no chances of their fleeing from the processes of law. In any case, their movements can be regulated by imposing conditions by the Supreme Court.
28. So far as the next ground on which the benefit of bail could have been denied to the petitioners is on account of the likelihood of the petitioners, tampering with the evidence or creating conditions, which are not conducive to the holding of a fair trial. Every petitioner says that the grant of bail to him will not create any impediment in the holding of a free and fair trial and that he would be available at all times to submit to the custody to the Court as and when 38 called upon to do so. Similarly, in a given case, the prosecuting agency may not raise this objection or make a positive statement as has been done in the present case that it has no objection to the grant of bail to the accused persons.
29. I feel that though such a concession granted by the prosecuting agency may be a very relevant and important factor to grant bail but I do not feel that the Court is bound to accept such a statement blindly. The Court is expected to exercise its own judgment and to see if there is any likelihood or chances of tampering with the evidence. This is because the Court has a constitutional duty to uphold the "law" and it is well possible in a given case there may be various extraneous considerations, which may have prompted the prosecuting agency to give such a concession, which need not be gone into detail herein in this case. No doubt, the petitioners are influential or moneyed persons having extensive clout political or otherwise but I have examined the list of witnesses qua each of the accused persons, which was supplied by each of the learned senior counsel. A perusal of the list of witnesses shows that these witnesses are generally proving the documents of banking transaction or otherwise to show the movement 39 of money transactions from D.B.Reality/ D.B.Dynamic to Kusegaon to Cine yug and finally to Kalaignar T.V. and the reverse.
Meaning thereby that most of the evidence against the petitioners is documentary evidence and there is in my view no prima facie evidence or likelihood, which may persuade the Court to doubt that the petitioners have proclivities or reason to believe that they will create condition, which may not be conducive to hold the free and fare trial. Further, Mr.Mohan Parasaran, learned ASG appearing for the CBI has clearly taken the stand in the Court below, as well as before this Court that they have no objection in case the petitioners are released on bail as they do not apprehend that the petitioners will tamper with the evidence and that they have no objection to the grant of bail to the petitioners. There for on account of this consideration, bail cannot be denied to the petitioners."
23. In another decision, in case of DIPAK SHUBHASHCHANDRA MEHTA VS. CBI AND ANOTHER reported in AIR 2012 SC 949, the Hon'ble Supreme Court at 18 and 19 and 20 of the judgment has observed as under: 40
18) The Court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail, a detailed examination of evidence and elaborate documentation of the merits of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted, particularly, where the accused is charged of having committed a serious offence. The Court granting bail has to consider, among other circumstances, the factors such as a) the nature of accusation and severity of punishment in case of conviction and the nature of supporting evidence; b) reasonable apprehension of tampering with the witness or apprehension of threat to the complainant and; c) prima facie satisfaction of the court in support of the charge. In addition to the same, the Court while considering a petition for grant of bail in a non- bailable offence apart from the seriousness of the offence, likelihood of the accused fleeing from justice and tampering with the prosecution witnesses, have to be noted. Considering the present scenario and there is no possibility of commencement of trial in the near future and also of the fact that the appellant is in custody from 31.03.2010, except the period of interim 41 bail, i.e. from 15.09.2011 to 30.11.2011, we hold that it is not a fit case to fix any outer limit taking note of the materials collected by the prosecution. This Court has repeatedly held that when the undertrial prisoners are detained in jail custody to an indefinite period, Article 21 of the Constitution is violated. As posed in the Sanjay Chandra's case (supra) we are also asking the same question i.e. whether the speedy trial is possible in the present case for the reasons mentioned above.
19) As observed earlier, we are conscious of the fact that the present appellant along with the others are charged with economic offences of huge magnitude. At the same time, we cannot lose sight of the fact that though the Investigating Agency has completed the investigation and submitted the charge sheet including additional charge sheet, the fact remains that the necessary charges have not been framed, therefore, the presence of the appellant in custody may not be necessary for further investigation. In view of the same, considering the health condition as supported by the documents including the certificate of the Medical Officer, Central Jail Dispensary, we are of the view that the appellant is entitled to an order of bail pending trial on stringent 42 conditions in order to safe guard the interest of the CBI.
20) In the light of what is stated above, the appellant is ordered to be released on bail on executing a bond with two solvent sureties, each in a sum of Rs. 5 lakhs to the satisfaction of the Special Judge, CBI, Ahmedabad on the following conditions:
i) the appellant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him to disclose such facts to the Court or to any other authority.
ii) the appellant shall remain present before the Court on the dates fixed for hearing of the case, for any reason due to unavoidable circumstances for remaining absent he has to give intimation to the Court and also to the concerned officer of CBI and make a proper application that he may be permitted to be present through counsel; iii) the appellant shall surrender his passport, if any, if not already surrendered and in case if he is not a holder of the same, he shall file an affidavit;
iv) In case he has already surrendered the Passport before the Special Judge, CBI, that fact should be supported by an affidavit.43
v) liberty is given to the CBI to make an appropriate application for modification/ recalling the present order passed by us, if the appellant violates any of the conditions imposed by this Court.
24. In the decision relied upon by the learned Senior Counsel petitioner-accused No.3 of the judgment of the Hon'ble Supreme Court in case of SANJAY CHANDRA VS. CENTRAL BUREAU OF INVESTIGATION reported in (2012) 1 SCC 40, the Apex Court has held as under:
Coming back to the facts of the present case, both the Courts have refused the request for grant of bail on two grounds :- The primary ground is that offence alleged against the accused persons is very serious involving deep rooted planning in which, huge financial loss is caused to the State exchequer ; the secondary ground is that the possibility of the accused persons tempering with the witnesses. In the present case, the charge is that of cheating and dishonestly inducing delivery of property, forgery for the purpose of cheating using as genuine a forged document. The punishment of the offence is punishment for a term which may extend to seven years. It is, no doubt, true that 44 the nature of the charge may be relevant, but at the same time, the punishment to which the party may be liable, if convicted, also bears upon the issue. Therefore, in determining whether to grant bail, both the seriousness of the charge and the severity of the punishment should be taken into consideration. The grant or refusal to grant bail lies within the discretion of the Court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the Court, whether before or after conviction, to assure that he will submit to the jurisdiction of the Court and be in attendance thereon whenever his presence is required. This Court in Gurcharan Singh and Ors. Vs. State AIR 1978 SC 179 observed that two paramount considerations, while considering petition for grant of bail in non- bailable offence, apart from the seriousness of the offence, are the likelihood of the accused 45 fleeing from justice and his tampering with the prosecution witnesses. Both of them relate to ensure of the fair trial of the case. Though, this aspect is dealt by the High Court in its impugned order, in our view, the same is not convincing.
26) When the undertrial prisoners are detained in jail custody to an indefinite period, Article 21 of the Constitution is violated. Every person, detained or arrested, is entitled to speedy trial, the question is : whether the same is possible in the present case. There are seventeen accused persons. Statement of the witnesses runs to several hundred pages and the documents on which reliance is placed by the prosecution, is voluminous. The trial may take considerable time and it looks to us that the appellants, who are in jail, have to remain in jail longer than the period of detention, had they been convicted. It is not in the interest of justice that accused should be in jail for an indefinite period. No doubt, the offence alleged against the appellants is a serious one in terms of alleged huge loss to the State exchequer, that, by itself, should not deter us from enlarging the appellants on bail when there is no serious contention of the respondent that the accused, if released on bail, would interfere with the trial 46 or tamper with evidence. We do not see any good reason to detain the accused in custody, that too, after the completion of the investigation and filing of the charge-sheet. This Court, in the case of State of Kerala Vs. Raneef (2011) 1 SCC 784, has stated :-
"15. In deciding bail applications an important factor which should certainly be taken into consideration by the court is the delay in concluding the trial. Often this takes several years, and if the accused is denied bail but is ultimately acquitted, who will restore so many years of his life spent in custody? Is Article 21 of the Constitution, which is the most basic of all the fundamental rights in our Constitution, not violated in such a case? Of course this is not the only factor, but it is certainly one of the important factors in deciding whether to grant bail. In the present case the respondent has already spent 66 days in custody (as stated in Para 2 of his counter-affidavit), and we see no reason why he should be denied bail. A doctor incarcerated for a long period may end up like Dr. Manette in Charles Dicken's novel A Tale of Two Cities, who forgot his profession and even his name in the Bastille."
27) In 'Bihar Fodder Scam', this Court, taking into consideration the seriousness of the 47 charges alleged and the maximum sentence of imprisonment that could be imposed including the fact that the appellants were in jail for a period more than six months as on the date of passing of the order, was of the view that the further detention of the appellants as pre-trial prisoners would not serve any purpose.
28) We are conscious of the fact that the accused are charged with economic offences of huge magnitude. We are also conscious of the fact that the offences alleged, if proved, may jeopardize the economy of the country. At the same time, we cannot lose sight of the fact that the investigating agency has already completed investigation and the charge sheet is already filed before the Special Judge, CBI, New Delhi. Therefore, their presence in the custody may not be necessary for further investigation. We are of the view that the appellants are entitled to the grant of bail pending trial on stringent conditions in order to ally the apprehension expressed by CBI.
29) In the view we have taken, it may not be necessary to refer and discuss other issues canvassed by the learned counsel for the parties and the case laws relied on in support of their respective contentions. We clarify that we have not expressed any opinion regarding the 48 other legal issues canvassed by learned counsel for the parties.
25. I have perused the statements of the witnesses recorded by the CBI during investigation. Perusing the statement of witnesses namely, N. Panduranga (witness-5), Bora Vidya Sagar (witness-6), Bunkal Raghavendra (witness-
7), Karthik (witness-12), Shiva Prasad (witness-28), B.N. Shankar (witness-37), V. Lakshmi Narayana (witness-3), N.K. Nanda (witness-24), P.Venugopal (witness-23), Surendra Prabhu (witness-92) and Hanumantappa Yellappa Thurai (witness-79). Perusal of the said statement of the witnesses and the documents, which were collected during investigation, would indicate the involvement of R.K. Jain- accused No.1 and Ritesh Milapchand Jain-accused No.3 in illegal mining activities, manhandling of NMDC official by M/s. DMSPL, transportation of illegally extracted iron ore through fraudulent permits by M/s. DMPSL and illegal mining by M/s. DMSPL, illegal mining and imposition of penalty on M/s.DMSPL, use of political influence not to entertain the complaint against illegal mining, illegally 49 renewing of the mining lease in 1999 with a renewed sketch and even mining beyond the renewal till the order passed by the Hon'ble Supreme Court. Therefore, perusing the material on record, it goes to show that the Joint Team had conducted survey by scientific methods in the area as directed by the Hon'ble Supreme Court and submitted its report wherein it is stated that illegal mining activities were carried on by the NMDC as well as M/s.DMSPL companies. Considering the encroachments coming under the 'C' category, as reported by the Central Empowered Committee, the Hon'ble Supreme Court observed that NMDC as well as M/s.DMSPL companies are carrying on the illegal mining activities and accordingly, cancelled the mining lease of the said companies.
26. The petitioner-accused No.1, in his petition, has mentioned that because of illegal mining activities, the Supreme Court has cancelled the mining lease and that itself is a punishment to the company. The petitioners accused Nos.3 and 1 have contended that this Court has already considered the aspect of alleged encroachment and 50 transportation of iron ore without there being transport permit and ultimately, held that no such encroachment has taken place and also there is no transportation of iron ore illegally. In this regard, I have already referred to the decision of the Hon'ble Supreme Court rendered in W.P. (Civil) No.562/2011 dated 18.4.2013. In para 39 of the said judgment, it has been observed that the boundaries fixed by the Central Empowered Committee is to be considered as final and the matter need not be agitated before any Courts and all the previous orders passed by the Courts or any other authorities subject to the order of the Hon'ble Supreme Court. Ultimately, the order passed by the Hon'ble Supreme Court shall prevail. Therefore, the petitioners now again cannot contend that there is no illegal mining activities carried on by the companies. The petitioners accused Nos.3 and 1 also cannot contended that they are innocent and no prima facie materials have been placed by the prosecution to show that they have committed alleged offence.
27. The statement of witnesses recorded by the investigating officer during investigation about which I have referred in the previous paragraphs also goes to show that 51 there are illegal mining activities carried out by the aforesaid companies in disregard to the terms and conditions of the mining lease agreement and mining ore has been transported in disregard to the terms and conditions of the transport permit. The statement of witnesses recorded by the investigating officer during investigation further goes to show that even though many complaints were lodged complaining that NMDC has encroached into mining area of M/s.DMPSL and M/s. DMSPL also has encroached into the mining area of NMMDC, no action has been taken by the concerned police in spite of many complaints. This has been observed by the Hon'ble Supreme Court while considering the report of the Central Empowered Committee.
28. The statement of witnesses further goes to show that the petitioners accused Nos.3 and 1 in collusion with the other accused persons have submitted wrong sketch and obtained permission for transportation of iron ore and also to extract mining ore in the area. They were all having conspiracy to cause wrongful loss to the State Exchequer and wrongful gain to themselves. Perusal of the charge sheet materials would go to show that because of the illegal 52 mining activities carried on by the petitioners in conspiracy with the other accused persons, there is wrongful loss to an extent of Rs.1232.395 Crores to the State exchequer. As I have already observed that after considering the report of the Central Empowered Committee as well as Joint Team constituted as per the order of the Hon'ble Supreme Court, it has been clearly held that the illegal mining activities are carried on by the petitioners. Therefore, the contention of the petitioners-accused Nos.3 and 1 that they have recently joined the company and they have not at all involved in such illegal activities cannot be accepted at all when there prima facie materials placed by the prosecution by way of documents and also the statement of witnesses recorded during investigation.
29. The statement of witnesses further goes to show that even the petitioners manhandled the NMDC officials in getting the mining lease agreement and also getting transport permits. It is noticed in the statement of witnesses that because of the petitioners having the political influence, they managed that the police should not take action on the complaints made against the NMDC as well as M/s. DMSPL. 53 It supports the contention of the prosecution that the petitioners-accused NOs.3 and 1 are powerful persons having political influence and if they are released on bail, they will tamper the prosecution witnesses.
30. Regarding the contention of the petitioner accused No.1 that he is suffering form the ailments, I have perused the document produced at Annexure-N dated 11.3.2011. It states that urea breath test or H-Pylori Detection done, result - "2" and H-Pylori - positive. The document at Annexure-N1 dated 25.4.2013 is with reference to Cervical spondylosis, impaired blood glucose profile, grade L fatty liver and over weight. The Doctor has advised for reduction of weight, regular exercise, low fat/high fibre, diabetic diet, follow up neurosurgical advice. The natures of ailments as stated in the said documents would indicate that the petitioner-accused No.1 can get treatment through the prison dispensary and he can have exercise in the prison premises as they are not so serious. The documents produced regarding ailments cannot be a sole ground for releasing the petitioner-accused No.1 on bail. 54
31. I have also perused the documents produced by the petitioner-accused No.3 to show about his date of birth and also about his performance certified by the companies. Those documents will not help the petitioner-accused No.3 at this stage when there is prima facie materials placed by the investigating officer to show his involvement that he has transported iron ore even without obtaining the transport permit and also in excess of the quantity. Thereby, he has caused huge loss to the State Exchequer by making unlawful gain for himself.
32. The contention of the petitioners in W.P. No.10335/1998 is that renewal of mining lease agreement is in accordance with law. Looking to the order passed in the said writ petition, the sketch produced by the petitioners in the said case was not accepted by this Court and this Court had directed for conducting survey to ascertain the boundary marks. This also goes to show and supports the case of the prosecution that the illegal mining activates were carried on beyond the boundaries which were stated in the mining lease agreement.
55
33. The petitioners-accused Nos.3 and 1 have contended that accused Nos.4, 5 and 7 were released on bail and on the ground of parity, they are also entitled to be released on bail. I have perused the materials which prima facie shows that the petitioners-accused Nos.3 and 1 were working at the site and extracted the iron ore and transported the quantity of iron ore in violation of the terms and conditions of the mining lease agreement and transport permits. With regard to the accused Nos.4, 5 and 7, they are the public servants and the allegation against them is that they conspired in collusion with the petitioners herein and recommended for renewal of mining lease agreement by furnishing the wrong sketch and they are not the persons who are connected with the companies either NMDC or M/s.DMSPL to carry out the actual mining activities at the spot. Therefore, considering the factual aspects, the present petitioners cannot be placed on the same footing as that of accused Nos.4, 5 and 7. Therefore, the ground of parity is not at all applicable to the petitioners-accused Nos.3 and 1.
34. Considering the materials placed on record and as there is prima facie case made out by the prosecution that 56 the petitioners-accused Nos.3 and 1 had managed with the police in keeping all the complaints pending without taking any further action in the matter, it is clear that the petitioners are highly influential persons and there is every force in the contention of the prosecution that if the petitioners-accused Nos.3 and 1 are released on bail, they will definitely tamper prosecution witnesses and they will come in the way of the trial of the case.
35. With regard to the decisions relied on by the learned Senior Counsel for the petitioners-accused Nos.3 and 1 and the principles enunciated in those decisions, I have already made reference to those decisions in the earlier paragraphs of this order. The facts and circumstances of the present cases discussed above and the facts and circumstances in the reported decisions relied on by the Senior Counsel for the petitioners accused Nos.3 and 1 in the cases are not exactly one and the same. The application of principles of law is always having reference to the facts involved in a particular case. It has been observed by the Hon'ble Supreme Court in the catena of decisions that each case is to be deiced on its own merits. Therefore, the 57 decisions relied upon by the learned Senior Counsel for the petitioners will not come to the aid and assistance of the petitioners for their release on bail. Therefore, looking to the seriousness of the charge leveled against the petitioners, the maximum punishment which entail the conviction, the magnitude of the amount involved in the case, the possibility of petitioners-accused Nos.3 and 1 influencing the prosecution witnesses and tampering with the prosecution witnesses, the character of the petitioners and reasonable possibility of securing them at the time of trial, larger interest of the public and the prima facie case, so considering all these aspects, I am of the opinion that these cases are not the fit cases to exercise discretion in favour of the petitioners accused Nos.3 and 1 to release them on bail.
The petitions are therefore rejected.
Sd/-
JUDGE Cs/-