Bangalore District Court
Cbi Acb Bangalore vs Mahesh Jayawanth Biliye on 26 October, 2024
1 Spl.CC. No. 54/2014
KABC010118422014
IN THE COURT OF LXXXI ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU (CCH 82)
Present:
Sri Santhosh Gajanan Bhat, B.A.L., LL.B.,
LXXXI Addl. City Civil & Sessions Judge,
Bengaluru City (CCH-82)
(Special Court exclusively to deal with criminal cases
related to former and elected MPs/ MLAs in the State of Karnataka)
Dated this the 24th day of October, 2024
Spl.CC. No. 54 / 2014
COMPLAINANT: State of Karnataka by CBI,
Anti Corruption Bureau,
Bengaluru
(By learned Special Public
Prosecutor)
V/s
ACCUSED: 1. Sri Mahesh J. Biliye
@ Mahesh Biliye
S/o Jayawanth Bikoro Biliye
Aged about 67 years
Deputy Port Conservator
Marine Engineer's Office,
Under Director of Ports and
Inland Water Transport,
KARWAR
2 Spl.C. No.54/2014
Also R/o : Port Quarter,
EPD-17/C1, Aligadda,
Baithkol, KARWAR.
2. M/s. Shri Lal Mahal Ltd.,
Registered Company
B-5 & 6, Bhagwan Dass
Nagar
East Punjabi Bagh
New Delhi-110 026
A2 Company represented by
Sri Khaja Ali S/o Ahamed
Sab,
aged about 44 years,
R/o L.B. Shastri Nagara,
Bengaluru-560017.
3. Sri Prem Chand Garg
S/o Sri Harnarayan Garg,
aged about 58 years,
Managing Director of
M/s. Shri Lal Mahal Ltd.,
B-5, Bhagwan Dass Nagar
East Punjabi Bagh
New Delhi-110 026
Also r/at: A-8, Bagwan Das
Nagar,
Punjabi Bagh, New Delhi-
110 026
4. Sri Sushil Kumar Valecha
S/o Kishan Chand Valecha
Aged about 65 years
Director, M/s. Shri Lal
Mahal Ltd.,
B-5, Bhagwan Dass Nagar
3 Spl.C. No.54/2014
East Punjabi Bagh
New Delhi-110 026
Also r/at: No.46, D-8,
Vikrant Apartment
Sector-13, Rohini, Delhi-110
085.
(Pardon is tendered to
accused No.4 as an
approver vide this Court
order dated 07.10.2021)
5. M/s. Shree Mallikarjun
Shipping Pvt. Ltd.,
OL of Marces building
Opp. Kadamba Bus-stand
Mundavel, Vasco-da-gama
GOA-403 802
A5 Company Represented by
Accused No.6 Sri Satish
Krishna Sail
2nd Address: Smt. Kalpana
Sail
Joint Managing Director
M/s. Shree Mallikarjun
Shipping Pvt. Ltd.,
"Mohan", NA-17, Chittakula
Sadashivagad, KARWAR.
6. Sri Satish Krishna Sail
@ Satish Sail S/o Krishna
Sail
Aged about 54 years
Managing Director
M/s. Shree Mallikarjun
Shipping Pvt. Ltd.,
R/at: "Mohan", NA-17,
Chittakula
4 Spl.C. No.54/2014
Sadashivgad, KARWAR
Date of offence During the period of 2009-
2010
Date of report of offence 15.3.2010
Name of the complainant As per the orders of Hon'ble
Supreme Court of India in W.P.
(Civil) No.562 of 2009 this case
has been registered
Date of commencement of 16.08.2022
recording of evidence
Date of closing of evidence 06.04.2024
Offences complained of U/s.120-B r/w 409, 420, 379
of IPC and Sec.7, 13(1)(c) & (d)
r/w 13(2) of P.C.Act, 1988
Opinion of the Judge Accused No.1 to 3 and 5 and 6
are found guilty
State represented by Smt. K.S.Hema, Learned Senior
Public Prosecutor
Accused defended by Sri Vishwanath Sabarad, Advocate
for A1
*****
JUDGMENT
This charge sheet has been filed by the Investigating Agency CBI/ACB/ Bengaluru against the accused persons for the offences punishable under Sec.120(B) r/w 409, 420, 379 of IPC and Sec.13(2) r/w 13(1)(c) and (d) of the Prevention of Corruption Act, 1988.
5 Spl.C. No.54/2014
2. The genesis of the above case is that as per the kind intervention of the Hon'ble Apex Court, the CBI authorities were directed to register the aforesaid case and to investigate the same. It has been contended that during the period of 2009-2010 about 88 lakh MT of iron ore was exported by 73 exporters from Belekeri Port which is termed as a seasonal port. During the relevant period, necessary permits were issued by Department of Mines of Geology ('DMG' for short) for transportation of 38 Lakh Tonnes of iron ore only. However, the data reveals of export of about 50 lakh tonnes of iron ore from the said Port was without valid permits issued by the DMG. The aforesaid aspect was brought to the kind notice of Hon'ble Apex Court by an NGO named Samaj Parivarthan Samudaya by filing necessary Writ Petition (Civil) No.562/2009. On perusal of the materials, Hon'ble Apex Court was pleased to appoint Central Empowered Committee ('CEC' for short) to 6 Spl.C. No.54/2014 look in to the issue and to submit its recommendations. The CEC had conducted thorough examination of factual aspects which were prevailing in the mining areas as well as in the Port area and had filed its report dated 27.04.2012 wherein it had recommended to conduct investigation in to the matters by recommending that the matter may be entrusted to CBI. For the purpose of convenience the CEC report which has been submitted to Hon'ble Apex Court on 5.9.2012, in sub-paragraph (iv) at page-14 is hereby extracted which reads as follows:
"The CBI may be directed to further investigate all aspects of the illegality in respect of the iron ore seized on 20.03.2010 from Belekeri Port by the Forest Department and substantial part of which is alleged to have been illegally exported. All proceedings related to the above matter investigated by the CID, Karnataka including the proceedings in Case No.189/2010 filed by them 7 Spl.C. No.54/2014 may be directed to be kept in abeyance."
3. On the basis of the recommendations, the Hon'ble Apex Court has seized upon the matter on 7.9.2012 and had passed order for comprehensive investigation by the CBI in the matters pertaining to the export of iron ore from Belekeri Port, Karnataka, during the period from 1.1.2009 to 31.5.2010 and the Hon'ble Apex Court was pleased to accept the recommendations of the CEC. Further, the Hon'ble Apex Court had accepted that the CBI shall register immediately an FIR and to investigate the case with respect to illegal extraction of about 50.79 Lakh MT of iron ore from the forest areas of Karnataka during the period 1.1.2009 to 31.5.2010. The illegal transportation of the aforesaid quantity of iron ore from the areas of extraction to the area of its export i.e., to Belekeri Port to other countries. Further, it was also observed by the Hon'ble Apex Court that the quantity of 50.79 lakh MT of iron ore which was 8 Spl.C. No.54/2014 illegally exported outside the country and over 8 lakh MT iron ore was found to be lying at Belekeri Port was actually under order of seizure by the forest authorities and the Port before it was exported, was in violation not only of different laws but under the seizure order. Hence, investigation was also ordered to be carried out with respect to illegal export of 8 lakh MT of iron ore from the order of seizure was recommended. Further, it was recommended by the CEC to hand over the investigation to CBI authorities which was accepted by the Hon'ble Apex Court and directed to institute FIRs and carry out intensive investigation. Further the Hon'ble Apex Court had made it clear that no authority or court shall entertain any challenge to CBI investigation of the case as directed by it.
4. On the basis of the registration of FIR, an intensive investigation was conducted by the CBI authorities and in the instant case a separate FIR 9 Spl.C. No.54/2014 came to be registered with respect to illegal transportation of seized iron ore from Belekeri Port in RC 17(A)/2012. On columniation of the investigation, necessary charge sheet came to be filed. It was contended in the charge sheet filed by the CBI authorities that the genesis of the case commenced on 15.3.2010 when Sri G.N.Naik, Range Forest Officer, Ankola had visited Belekeri port and had found huge quantity of iron ore stocked in side the Port area. In this regard, he had prepared a detailed panchanama and recording the proceedings had registered Forest Offence in FOC No.17/2009-10 under Sec.2(7)(b)(iv), 62 and Sec.80 of the Karnataka Forest Act, 1953 and Sec.143 and 162 of Karnataka Forest Rules, 1969 against the then Port Conservator, Belekeri Port who has been arraigned as accused No.1 herein Sri Mahesh J. Biliye as he has failed to produce valid permits or passes which were required for the transportation of iron ore at Belekeri, Port. 10 Spl.C. No.54/2014 Subsequently, on 20.03.2010 C.G.Naik, Range Forest Officer with other staff and panchas visited Belekeri port and prepared a panchanama and seizure report showing of iron ore approximately 5 lakh Mts. After the seizure, Sri C.G.Naik, the Investigation Officer in FOC Case No.17/2009-10 had handed over the seized iron ore to the Port Conservator on as-is-where-is- basis i.e., to Sri Mahesh J.Biliye vide letter No.983/2009-10 to his safe custody. The said seizure report was also submitted to the learned JMFC Court at Ankola wherein it was stated that the seized materials were in the custody of Port Conservator, which was accepted by the court and the learned Court permitted to retain the seized iron ore which was under the safe custody of Mahesh J.Bileye, Port Conservator. It is also been contended that subsequently, Sri Narendra G.Hittalamakki, the then ACF, Ankola along with Sri C.G.Naik, RFO, Ankola along with other Forest Officials and panchas visited 11 Spl.C. No.54/2014 Belekeri port on 26.3.2010 and 29.3.2010 and marked about 24 heaps of iron ore and drawn necessary panchanama. Among the iron ore heaps, which is relevant to the case on hand was the seizure of two heaps i.e., heap No.7 and 22 belonging to M/s.Sri Lal Mahal Ltd., to an extent of 24441 MT of iron ore. On the basis of the said mahazar it was contended that the accused persons had entered into criminal conspiracy among themselves and in furtherance of the same, the accused No.5 M/s.Mallikarjuna Shipping Private Limited ('SMSPL' for short) had purchased 24441 MT of seized iron ore from M/s.Sri Lal Mahal Ltd., and exported the same to China. The aforesaid act was committed with the active connivance and help of accused No.1 Mahesh J. Biliye who was working as Port Conservator at relevant point of time. It is further narrated that the stock of 24441 MT of iron ore fines were found in the premises on 20.3.2010 which was seized by the 12 Spl.C. No.54/2014 Forest Department. Further, it was identified and marked as heap No.23 during the relevant point of time. By pointing out the same, it has been submitted that accused No.2 M/s.Sri Lal Mahal Ltd., had illegally sold the iron ore to accused No.5 SMSPL, even though they had filed a writ petition before the Hon'ble High Court of Karnataka contending that the materials were seized by the Forest Department. Due to the act of the accused persons a loss of Rs.89,62,140/- was caused to the Government exchequer. Immediately, after filing of the writ petition and after exporting the iron ore with the aid and help of accused No.5 M/s,SMSPL for which accused No.6 Satish Krishna Sail was the Managing Director, the company A2-M/s.Sri Lal Mahal Ltd., had withdrawn their writ petition by filing memo wherein it was stated that they were unable to export the iron ore as Belekeri Port was closed due to monsoon. All the aforesaid activities would clearly indicate a criminal 13 Spl.C. No.54/2014 intention being entertained by the accused persons. It is also being stated that accused No.1 Mahesh J.Biliye, the Port Conservator at Belekeri Port in violation of the kind orders dt.22.3.2010 passed by the Court of JMFC, Ankola, had issued necessarily port clearance vide No.23/2010-11 to Vessel MV Mandarin Harvest and clearance No.53/2010-11 dt.4.6.2010 to Vessel M.V.Riva wind had illegally exported about 24441 MT of iron ore fines which were included in the seized iron ore belonging to M/s.Sri Lal Mahal Ltd. Due to the aforesaid act of the accused persons the offences as mentioned above was committed by the accused persons. Accordingly, charge sheet came to be filed.
5. At the inception of the case, accused No.1 Mahesh J.Biliye was secured under body warrant and he was released on regular bail on 14.1.2015. Accused No.3 Mahesh Kumar was secured under body warrant and he was released on regular bail on 14 Spl.C. No.54/2014 13.2.2015. Accused No.5 Satish Krishna Sail was secured under body warrant and he was released on regular bail on 16.6.2015. Accused No.2 and 4 are companies.
6. Further on completion of investigation, necessary charge sheet came to be filed before the competent court. My predecessor in office had taken necessary cognizance with respect to the allegations which were leveled against the accused persons. The accused persons had appeared before the court in pursuance of the summons ordered against them. My predecessor in office on perusal of the materials on record had proceeded to frame necessary charges against them on 4.8.2022. The accused No.1 was the Public servant and was also working as Port Conservator was charged for committing offences punishable under Sec.120(B) r/w 409, 420, 379 of IPC and also under Sec.13(1)(c) r/w 13(2) of P.C. Act. That apart the accused No.2, 3, 5 and 6 are charged 15 Spl.C. No.54/2014 for offences punishable under Sec.120(B) r/w 409, 420 and 379 of IPC. Since the accused have pleaded not guilty and claimed to be tried, necessary trial was fixed.
7. The prosecution in order to prove its case had examined totally 36 witnesses as PW1 to PW36 and Ex.P.1 to P.150 and Ex.D.1 and D2 were came to be marked. On completion of the evidence, the statement of the accused came to be recorded as contemplated under Sec.313 of Cr.P.C. wherein the accused have denied all the incriminating materials available against them. The accused have submitted that they do not have any defence evidence and whereas the accused No.1 has filed his written statement along with statement recorded under Sec.313 of Cr.P.C.
8. In the written statement which has been filed by accused No.1, it is stated that he had not committed any offence, nor he was entrusted with 16 Spl.C. No.54/2014 custody of alleged seized materials at Belekeri Port by the Forest Department Officials. Further, he has stated that as a dutiful officer he had corresponded with his higher authorities and had brought the illegal seizure being made by the Forest Department and also he had requested them to initiate necessary action in this regard. By pointing out to the aforesaid acts of accused No.1 sought for acquitting him.
9. During the course of arguments learned Senior Public Prosecutor has vehemently canvassed her arguments by contending that the prosecution is able to establish and prove the allegations made in the above case. The learned Senior Public Prosecutor has also filed a detailed written arguments in order to substantiate her contention. In the written arguments it has been canvassed by the prosecution in detail explaining the culmination of facts which had led to the filing of the charge sheet and also the trial. It has been stated in detail with respect to the overt act 17 Spl.C. No.54/2014 committed by each of the accused person. Learned Senior Public Prosecutor has also stated that accused No.1 Mahesh J.Bileye, Deputy Port Conservator, Belekeri Port was also holding charge of Port Conservator, had issued letter correspondence as Port Conservator of Belekeri Port on 26.3.2010 and 29.3.2010. Sri Narendra Hittalamakki, then ACF, Ankola and C.G.Naik, RFO and other Forest Officials had visited Belekeri Port and marked 24 heaps of iron ore by drawing necessary mahazar. Out of the seized iron ore, one heap belong to M/s.Sri Lal Mahal Ltd., which have been arraigned as accused No.2 wherein an extent of 24441 MT of iron ore came to be seized. The forest officials had registered a case in Forest Offence Case (FOC) No.17/2009-10 which was under
investigation and it is submitted that the M/s.Sri Lal Mahal Ltd., had stored iron ore to an extent of 24441 MT at stack No.23 during the period 21.3.2010 to 31.05.2010 and it had also brought some more iron 18 Spl.C. No.54/2014 ore and stored at Belekeri Port. The learned Senior Public Prosecutor in order to buttress her submission has pointed out that accused No.1 Mahesh J.Bileye being Port Conservator has issued port clearance No.23/2010-11 to Vessel M.V.Mandarin Harvest and clearance No.53/2010-11 dt.4.6.2010 to Vessel MV Riva Wind through which accused No.5 M/s.Shree Mallikarjuna Shipping Pvt Ltd., ('SMSPL' for short) illegally exported 24441 MT of iron ore fines which includes the seized iron ore belonging to M/s.Sri Lal Mahal Ltd., and received sale proceeds. It is also been submitted by the learned Senior Public Prosecutor that Sanction to prosecute accused No.1 was obtained under Sec.19 of the P.C.Act was in accordance with law. It is also submitted that accused No.1 Mahesh J.Bileye was working as Deputy Port Conservator, Belekeri Port coming under the Department of Port and Inland Water, for which the Government of Karnataka was the appointing 19 Spl.C. No.54/2014 authority as well as the competent authority to remove him from service. It is also been submitted that the Competent Authority by considering the materials placed before it and also by looking in to the charge sheet, had proceeded to accord necessary sanction to prosecute accused No.1 Mahesh J.Bileye which was in accordance with law. She has also pointed out to the document which indicates of according sanction to prosecute accused No.1 Mahesh J.Bileye.
10. The prosecution has also filed written submissions with respect to seizures being made by the Forest Authorities. It is the contention of the prosecution that necessary intimation with respect to seizure and also directions of the learned JMFC, Ankola with respect to entrusting the same to accused No.1 Mahesh J.Bileye was properly conveyed.
Further, the prosecution in order to buttress their contention has stated that the evidence of PW19 20 Spl.C. No.54/2014 R.Gokul who was the Deputy Conservator of Forest at Karwar Division is required to be appreciated wherein he has deposed about directing his officials to verify the lorries transporting mines to the Port. The prosecution has also submitted that the evidence of Forest Authorities i.e., PW32 G.N.Naik, PW13 Yogesh Anand Shetty, PW11 Nagesh Minnu Goankar, PW3 Mahesh Narayan Gaonkar, PW4 Ashok Ramachandra Naik, PW5-Prakash Somanaik, PW22 Arun Atmaran Pawar, PW7- Jagadish Tandel, PW6 R.Anand, and PW24-M.Ganesha when conjointly read with the documents which are produced by them would indicate about entrusting of seized iron ore to A1- Mahesh J.Bileye and an attempt being made by employees of M/s.SMSPL to meddle with the seized iron ore at Belekeri port unauthorisedly. It is also been submitted that the evidence of PW11 Nagesh M.Gaonkar who was working as Seamen at Tollgate outside the entrance of Belekeri port would clearly 21 Spl.C. No.54/2014 indicate that he had received intimation from the Forest Department which was conveyed to the Port Conservator A1 Mahesh J.Bileye and identified him along with letter at Ex.P.11. The learned Senior Public Prosecutor has also pointed out to the evidence of PW13 Yogesh Anand Shetty, who has also deposed in consonance with the evidence of PW11 Nagesh M.Gaonkar. It has been argued that the seizure report at Ex.P.11 was submitted to the learned JMFC at Ankola, which shows the particulars of the seizure of approximately 5 lakh MT of iron ore which was valued at about Rs.150 Crore.
11. The learned Senior Public Prosecutor also pointed out to the document at Ex. P.14 and Ex. P.30 which were letters addressed to the Forest Department and also the letter at Ex. P.56 which was addressed by accused No.1 Mahesh J.Bileye on 24.3.2010 directing shipping companies to follow and comply the orders of Hon'ble Court. By pointing out 22 Spl.C. No.54/2014 the same it has been submitted by the learned Senior Public Prosecutor that after instructing the companies to adhere to the rule of law, now he cannot come up with the contention that no necessary intimation was given to him with respect to seizure of iron ore at Belekeri Port.
12. That apart, the learned Senior Public Prosecutor has also pointed out to the various correspondence that were made with the Stevedores by the Port Authorities and also with the Forest Department. The learned Senior Public Prosecutor in her written argument has also submitted that the mahazar dt.15.3.2010 at Ex. P.88 was drawn by the concerned Forest Department authorities and subsequently on 20.3.2010 another mahazar came to be drawn by the Forest Department officials to measure the extent of iron ore through PW32 G.N.Naik, and also PW3 Mahesh Narayan Gaonkar and PW4 Ashok Ramachandra Naik, which would 23 Spl.C. No.54/2014 clearly indicate of existing quantity of iron ore at Belekeri port.
13. Next, the learned Senior Public Prosecutor has pointed out that the mahazar dt.26.3.2010 at Ex.P.9 had justified their contention and also mahazar dt.29.3.2010 at Ex.P.10 which were drawn were proved by the evidence of PW32 G.N.Naik and PW5 Prakash Somanna Naik. The learned Senior Public Prosecutor has also relied upon the mahazar drawn between 26.3.2010 and 29.03.2010 which had identified 24 heaps of iron ore which were measured and later on arrived at a conclusion that approximately 5 lakh MT of iron ore was illegally exported out of country. Thereafter the prosecution has relied upon another mahazar dt.2.6.2010 at Ex.P.116 wherein the allegation was leveled with respect to meddling with the stored iron ore at Belekeri Port by the officials of M/s.SMSPL and to ascertain about its veracity another mahazar was 24 Spl.C. No.54/2014 drawn on 2.6.2010 wherein it was estimated that only 2 lakh MT iron ore was available at Belekeri Port and the same was proved by the evidence of PW32 G.N.Naik, PW3 Mahesh Narayan Gaonkar, PW4 Ashok Ramachandra Naik.
14. Learned Senior Public Prosecutor has also pointed out that the mahazars dt.7.8.2010 to 9.8.2010 marked as Ex.P.12 duly proved by the evidence of PW13 Yogesh Shetty, PW6 R.Anand and PW11 Nagesh Bommaiah Gunaga. It was also submitted that the quantity of iron ore was measured using volumetric analysis method. She has also argued that they were not provided with any facilities to carry out the mahazars scientifically during the relevant point of time, the practice which was in vogue was to measure the same by using volumetric method which was being adopted by the CBI authorities also. Learned Senior Public Prosecutor has also submitted that the provisions of the 25 Spl.C. No.54/2014 Karnataka Forest Rules 1969 was properly complied and further the provision of Rule 143 clearly indicates that Forest Produce means any forest produce found in or on the margin of any public road, whether loaded in any conveyance or not, the same has to be construed as Forest produce. With respect to the overt act of accused No.5 M/s.SMSPL, she has stated that PW2-Deepak K.Waigankar has deposed before this court which would establish that accused No.1 Mahesh J.Bileye had went out of his State to furnish necessary assistance to commit irregularities by them. Further, evidence of PW22 Arun Atmaram Pawar, U.Ramachandra Naik and Jagadish Tandel who are also the signatories to Ex.P.14 were proved in accordance with law.
15. Learned Senior Public Prosecutor also pointed out that the total extent of iron ore which was prevailing at Belekeri Port would establish by her by leading evidence of PW17 Krishna Narayan Keleskar 26 Spl.C. No.54/2014 on 11.12.2023. Lastly she has pointed out to the documents through which the export activities were carried out by the accused No.5 Company M/s.SMSPL and as per the bills which are available about 24441 MT of iron ore was shipped out of the country. By pointing out the said aspects she has sought for awarding maximum punishment as contemplated in the provisions of law.
16. Sri V.Sabarad. Advocate appearing on behalf of accused No.1 has also filed written submission wherein he has contended that the prosecution has failed to establish entrustment of seized iron ore to the custody of accused No.1. Sri V.Sabarad, learned counsel has taken this court through the entire materials which is available on record and has stated that the prosecution have utterly failed to prove the entrustment. It is his contention that the documents which are at Ex.P.81, Ex.P.82 would establish the failure of the prosecution 27 Spl.C. No.54/2014 to prove the entrustment. He has also canvassed his arguments that the mahazar which were drawn by CID authorities at the time of conducting the investigation by them was also not in accordance with law. In order to pinpoint the same, he has argued that the mahazar dt.9.8.2010 the witnesses have affixed their signature only on the last page of the mahazar, whereas their signatures are not forthcoming in some of the pages. He has also pointed out that the cross- examination of PW19 R.Gokul would indicate that necessary permissions were obtained to seize the materials which were lying at Belekeri Port. That apart, he has also stated that it has been elicited during the course of evidence that the quantities which were allegedly seized could not be properly weighed and measured due to their bulkiness. However, the prosecution and also the witnesses have deposed that they had personally verified the heaps and also measured its quantity. The last limb of 28 Spl.C. No.54/2014 argument which is addressed by him was that there were no materials to convict accused No.1 who was also holding a high position in the Society by working at the Port would only bring disrepute to the institution. He has argued that the cargo allegedly stolen was to an extent of 1,92,037 MT in all the 3 cases which were pending before this court and as per the charge sheet it would indicate that the materials which were recovered was around 6 lakh MT which would indicate that the investigation was not conducted properly. Lastly it has been argued that the allegations against the has not been proved in accordance with law with respect of arrest, detention of the accused persons. Was the volumetric analysis adopted and referred by CID authorities through Investigating Officer Mr. Muddumahadevaiah was not totally sync with the story which has been put forth by the prosecution. By pointing out the aforesaid infirmities he has sought for acquitting accused No.1. 29 Spl.C. No.54/2014
17. Learned Senior counsel Sri Kiran Javali appearing on behalf of learned counsel for accused No.2 and 3, has vehemently argued that the prosecution has failed to establish that about 5 lakh MT of iron ore was available at Belekeri Port which was seized by them and which was stored at heap No.23 which belonged to Lal Mahal Ltd. He has also argued that there was no individual bifurcation of heaps at Belekeri Port. In order to buttress his submission, he has relied upon the evidence of PW.36 Biswajit Das I.O. who during the course of his cross- examination has specifically deposed that the heaps were not properly identified. Learned Senior counsel has also taken this court to the evidence of PW2 Deepak Waigankar who has clearly stated that the seized iron ore could not be distinguished. The learned Senior Counsel has pointed out that the prosecution had not examined C.G.Naik who had conducted mahazar at the inception and whereas the 30 Spl.C. No.54/2014 mahqazar marked through Sri G.N.Naik who had lodged FIR on 15.3.2010. In order to justify the contention of the proseciton, it is argued that they should have examined mahazar witnesses as per Ex.P.80A and also the witnesses to the mahazar at Ex.P.8. By pointing out the same, it is his contention that the prosecution has utterly failed to prove the mahazar.
18. That apart, learned Senior Counsel has also vehemently argued that the heaps were not properly weighed and in the mahazar it was stated about the manner in which it was weighed and the very basis on which the weight was determined was highly ridiculous wherein it was measured by using stick and ropes. It is his submission that the quantum and volume were not properly determined and established by the prosecution. He has also pointed out to the evidence of PW4 Ashok Ramachandra Naik wherein he had deposed of 31 Spl.C. No.54/2014 obtaining photographs at the time of mahazar. However, the said photographs was not produced by the CBI authorities.
19. Learned Senior Counsel after assailing the mahazar has argued that there was no clarity with respect to the total extent seized and when the same was compared with the evidence of PW6 Anand.R. who was the Port Employee, it was elicited that they had not maintained any inward and outward register. As such receiving of the intimation from the Forest Department itself was doubtful. He has also pointed out to the evidence of PW.7 Jagadish Tandel wherein he had admitted that the register was maintained and it was available at the port. By pointing out to the differences in the evidence of PW.6 and PW.7 it has been argued that the if at all the documents were maintained and available at the port then what was the reason for not recovering the same. 32 Spl.C. No.54/2014
20. Learned counsel has also referred to the evidence of PW13 Yogish Anand Shetty who in his evidence has specifically stated about the mahazar and also feigned his ignorance with respect to the extent being seized. He has pointed out to the cross- examination portion wherein PW.13 has stated that there were 56 heaps of iron ore available and by pointing out to the same, he has argued at length that the quantum itself was not properly determined.
21. Learned Senior Counsel has argued that the mahazar dt.2.5.2010 as per Ex.P.116 no samples were drawn and it was mandatory to obtain the samples of the materials which were to be recovered. It is his submission that PW11 Nagesh N.Gaonkar for the first time has spoken about the collection of samples and if so, then why it was not produced before the court.
22. Learned Senior Counsel has argued at length with respect to tendering pardon to accused 33 Spl.C. No.54/2014 No.4 Susheel Kumar Valecha. It has been argued at length that the accused No.4 Susheel Kumar Valecha was arrested on 11.3.2014 and the charge sheet was filed in the year 2013. It is his submission that after about 8 years he had turned approver and as such the judgment of Hon'ble Apex Court reported in (2011) 9 SCC 479 in the case of Mrinal Das & Ors vs State Of Tripura, wherein it was held as follows:
"41) The analysis of statement of various persons, particularly, eye-
witnesses clearly strengthen the case of PW-6, approver, in all aspects including conspiracy, planning to attack the deceased for his statement about the students' movement, actual incident, role played by the assailants and subsequent events after the gunshot till the death of the deceased Tapan Chakraborty. We are satisfied that by these statements, the prosecution has strengthened its case through PW-6 approver and there is no reason to disbelieve his version.
Reliance on the hostile witness 34 Spl.C. No.54/2014
42) In the case on hand Ganesh Kol (PW-2), Satyendra Tanti (PW-9), Ramakanta Paul (PW-10) and Prabhir Biswas (PW-12) were declared as hostile witnesses. It is settled law that corroborated part of evidence of hostile witness regarding commission of offence is admissible. The fact that the witness was declared hostile at the instance of the Public Prosecutor and he was allowed to cross-examine the witness furnishes no justification for rejecting en bloc the evidence of the witness.However, the Court has to be very careful, as prima facie, a witness who makes different statements at different times, has no regard for the truth. His evidence has to be read and considered as a whole with a view to find out whether any weight should be attached to it. The Court should be slow to act on the testimony of such a witness, normally, it should look for corroboration with other witnesses. Merely because a witness deviates from his statement made in the FIR, his evidence cannot be held to be totally unreliable. To make it clear that 35 Spl.C. No.54/2014 evidence of hostile witness can be relied upon at least up to the extent, he supported the case of prosecution.
The evidence of a person does not become effaced from the record merely because he has turned hostile and his deposition must be examined more cautiously to find out as to what extent he has supported the case of the prosecution."
23. The above judgment would clearly depict the position of law which would indicate that the tendering of pardon itself was not appropriate. That apart, he has also pointed out to the alleged infirmities in the evidence of PW.25 wherein at para-6 he has also deposed that he was placed at New Delhi and he had a team at Karwar through whom they were operating. The Investigating Agency had not identified the members nor examined them. Lastly, the learned Senior Counsel has pointed that with respect to the recoveries being made no compliance of 36 Spl.C. No.54/2014 Sec.65(B) of Evidence Act was made and as such it was not properly investigated.
24. Learned Senior Counsel has argued at length with respect to the evidence of PW.26 Muddu Mahadevaiah who has deposed about the iron ore which was available at Adani Enterprises. He has argued that with respect to accused No.2 and 3, two witnesses were examined of whom PW.29 Susheel Kumar Valecha was the approver. In fact it is his argument that the evidence of PW.25 Ashish Mujumdar clearly discloses the role of accused No.4 and as such the present accused No.3 Premchandra Garg cannot be held liable.
25. The learned Senior Counsel has also relied upon the judgment of Hon'ble Apex Court reported in (2013) 15 SCC 222 (CBI Vs. Ashok Aggarwal) wherein it has been held as under:-
19. In Saravanabhavan v. State of Madras [Saravanabhavan v. State of Madras, AIR 1966 SC 1273 : 1966 37 Spl.C. No.54/2014 Cri LJ 949] , Hidayatullah, J.
speaking for the majority of the Constitution Bench observed that the antecedents of the approver do not really make him "either a better or worse witness" but his evidence can only be accepted on its own merit and with sufficient corroboration.
20. In Prithipal Singh v. State of Punjab [(2012) 1 SCC 10 : (2012) 1 SCC (Cri) 1] , this Court considered a case where an accomplice who had not been put on trial was examined as a witness who deposed in the court after taking oath; and after considering earlier judgments particularly Rameshwar v. State of Rajasthan [1951 SCC 1213 : AIR 1952 SC 54 : 1952 Cri LJ 547] , Sarwan Singh v. State of Punjab [AIR 1957 SC 637 : 1957 Cri LJ 1014] , Suresh Chandra Bahri v. State of Bihar [1995 Supp (1) SCC 80 : 1995 SCC (Cri) 60] , K. Hashim v. State of T.N. [(2005) 1 SCC 237 : 2005 SCC (Cri) 292] and Chandran v. State of Kerala [(2011) 5 SCC 161 : (2011) 2 38 Spl.C. No.54/2014 SCC (Cri) 551] held that : (SCC p. 26, para 39 ) "39. An accomplice is a competent witness and [that] conviction can lawfully rest upon his uncorroborated testimony, yet the court is entitled to presume and may indeed be justified in presuming in the generality of cases that no reliance can be placed on the evidence of an accomplice unless the evidence is corroborated in material particulars, which means that there has to be some independent witness tending to incriminate the particular accused in the commission of the crime."
The deposition of an accomplice in a crime who had not been made an accused and put to trial can be relied upon, however, his evidence is required to be considered with care and caution.
Such a person is a competent witness as he deposes in the court after taking oath and there is no prohibition in law not to act upon 39 Spl.C. No.54/2014 his deposition without corroboration.
21. Section 114 Illustration (b) and Section 133 of the Evidence Act, 1872 provide for the same that an accomplice is a competent witness and that his testimony can be relied upon but depending upon the quality of the evidence. While Section 133 reads that "Accomplice is a competent witness and a conviction can be maintained on his evidence", Illustration (b) of Section 114 provides for presumption that "an accomplice is unworthy of credit, unless he is corroborated in material particulars". Thus, in practice conviction of a person on such evidence should not take place except under very rare and exceptional circumstances. Usually substantial corroboration is required. This provision incorporates a rule of caution to which the court must have regard. (Vide Sk. Zakir v. State of Bihar [(1983) 4 SCC 10 : 1983 SCC (Cri) 761] , Niranjan Singh v. State of 40 Spl.C. No.54/2014 Punjab [(1996) 9 SCC 98 : 1996 SCC (Cri) 939] and State of T.N. v. Suresh [(1998) 2 SCC 372 : 1998 SCC (Cri) 751] .)
22. In Bhiva Doulu Patil v.
State of Maharashtra [Bhiva Doulu Patil v. State of Maharashtra, AIR 1963 SC 599 : (1963) 1 Cri LJ 489] this Court considered the judgment in Bhuboni Sahu v. R. [(1948-49) 76 IA 147 : (1949) 62 LW 664 : AIR 1949 PC 257] wherein it has been observed as under : (Bhuboni Sahu case [(1948-49) 76 IA 147 : (1949) 62 LW 664 : AIR 1949 PC 257] , IA p.
157) "... The danger of acting on accomplice evidence is not merely that the accomplice is on his own admission a man of bad character who took part in the offence and afterwards to save himself betrayed his former associates, and who has placed himself in a position in which he can hardly fail to have a strong bias in favour of the prosecution; the real danger is that he is telling a story which in its 41 Spl.C. No.54/2014 general outline is true, and it is easy for him to work into the story matter which is untrue. He may implicate ten people in an offence, and the story may be true in all its details as to eight of them, but untrue as to the other two, whose names have been introduced because they are enemies of the approver.
This tendency to include the innocent with the guilty is
peculiarly prevalent in India, as Judges have noted on innumerable occasions, and it is very difficult for the court to guard against the danger."
23. This Court placing reliance on the above, held as under : (Bhiva Doulu Patil case [Bhiva Doulu Patil v. State of Maharashtra, AIR 1963 SC 599 : (1963) 1 Cri LJ 489] , SCC p. 601, para 7) "7. The combined effect of Sections 133 and 114, Illustration
(b) may be stated as follows :
According to the former, which is a rule of law, an accomplice is competent to give evidence and 42 Spl.C. No.54/2014 according to the latter which is a rule of practice it is almost always unsafe to convict upon his testimony alone. Therefore though the conviction of an accused on the testimony of an accomplice cannot be said to be illegal yet the courts will, as a matter of practice, not accept the evidence of such a witness without corroboration in material particulars."
24. In Jasbir Singh [Jasbir Singh v. Vipin Kumar Jaggi, (2001) 8 SCC 289 : 2001 SCC (Cri) 1525] this Court dealt with the issue observing that the Court while considering the application for tendering pardon is not to consider the possible weight of the approver's evidence even before it was given. The evidence of an approver does not differ from the evidence of any other witness except that the evidence of the approver is looked upon with more caution. The suspicion of such evidence may be removed and if the evidence of an approver is found to be trustworthy and acceptable, then the evidence 43 Spl.C. No.54/2014 might will be decisive in securing a conviction. Thus, the court while exercising such power should not assess the probative value of the possible evidence of the person seeking permission to become an approver in anticipation and wholly in the abstract .
25. The observations made in Lt. Commander Pascal Fernandes [Lt. Commander Pascal Fernandes v. State of Maharashtra, AIR 1968 SC 594 : 1968 Cri LJ 550] were sought to be construed by the learned ASG as requiring the Court to indubitably agree to the tendering of pardon if the prosecution thinks that the tender of pardon will be in the interests of a successful prosecution of the other offenders whose conviction is not easy without the approver's testimony. We do not agree since this Court was contemplating a situation where the proper course for the Judge was to ask for a statement from the prosecution and as the prosecution emphasised that it indubitably 44 Spl.C. No.54/2014 agreed to the tendering of pardon as it will be in the interests of a successful prosecution of the other offenders.
28. Section 306 CrPC is verbatim to Section 337 of the old Code. There is no change at all with respect to the power to grant pardon. More so, exercise of judicial power in relation to grant of pardon is required so as to remove any suspicion of political consideration or to ensure that the pardon is in the interest of justice (Law Commission of India, Forty-eighth Report, July 1972). The Constitution Bench in Saravanabhavan [Saravanabhavan v. State of Madras, AIR 1966 SC 1273 : 1966 Cri LJ 949] considered the issue of veracity/reliability of the evidence of an approver and not who can be made an approver or what is the role of the court while considering the application for grant of pardon.
30. The concept of public policy was explained by Lord Mansfield in Holman v. Johnson [(1775) 1 Cowp 45 Spl.C. No.54/2014 341 : 98 ER 1120] observing that the principle of public policy is : ex dolo malo non oritur actio. No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the plaintiff's own stating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the court says he has no right to be assisted. (See also Kedar Nath Motani v. Prahlad Rai [AIR 1960 SC 213] .) Public policy, though based on morality and its notions are inherently subjective, has apparently been referred to as synonymous with the policy of law or the policy of the statute. However, in modern times it has become quite distinct from that of policy of law as it has rightly been said that a just thing may not be legally right as morality and law are not co-
extensive. (Vide Murlidhar Aggarwal v. State of U.P. [(1974) 2 SCC 472 :
AIR 1974 SC 1924] and S. Khushboo 46 Spl.C. No.54/2014 v. Kanniammal [(2010) 5 SCC 600 :
(2010) 2 SCC (Cri) 1299] .)
26. By pointing out to the aforesaid aspects, it has been argued at length that the materials did not indicate of any overt act against present accused persons and hence, he has requested to acquit accused No.2 and 3.
27. On behalf of accused No.5 M/s. SMSPL being represented by its Managing Director Mr.Satish Krishna Sail-accused No.6, it is stated that the investigation itself which was conducted was erroneous in the eyes of law. Sri Murthy D.Naik, the learned Senior Counsel appearing on behalf of accused No.5 and 6 has vehemently argued that the invocation of proceedings against the present accused itself was bad in the eyes of law. It is his contention that Belekeri Port was a seasonal Port which would have closed during the period of June to September and also if it was stocking iron ore which would have 47 Spl.C. No.54/2014 consumed more 10 lakh MT of iron ore. The learned Senior Counsel has also pointed out the infirmities in the prosecution case and has argued that a huge demand was created towards iron ore in the international market and local traders and exporters had seized the opportunity to improve their illegal mining activities and also collecting the same they had planned to export to other countries by plundering the natural resources which was available in the country. By pointing out the said infirmities, the learned Senior Counsel has sought for acquittal of accused No.5 and 6.
28. The learned counsel for accused No.1 has relied upon the following decisions:-
(1) Judgment of Hon'ble Apex Court reported in 2022 (1) KarLJ 351 (Ashoo Surendranath Tewari Vs. The Deputy Superintendent of Police, EoW, CBI and another) has argued that mere exoneration of accused No.1 in departmental 48 Spl.C. No.54/2014 proceedings is required to be accepted. It is his submission that the standard of proof in a Departmental Enquiry was not so high as that of a criminal case.
Though preponderance of probability were much lesser than the standard proof which was required for convicting an accused under criminal proceedings. It must be proved that the grounds urged by them were in accordance with law.
However, no such standard of proof was produced.
(2) He has also relied upon the judgment of Hon'ble Apex Court reported in (1988) 4 SCC 302 (State of U.P. Vs. Krishna Gopal and another). The learned Senior Counsel Sri Murthy D.Naik by relying upon the said authority has contended that the court has to weigh and sift the materials available before it and though the standard was on higher probability, 49 Spl.C. No.54/2014 there was no substitute absolute standard for measuring the same.
29. That apart the learned Senior Counsel has also argued that there are no materials to indicate the exact entrustment being made to the port officer. It has been submitted by him that the mahazars which were drawn have to be considered conjointly and also the serving of the letter as contended by the prosecution upon the Port Officer with respect to seizure and making him the custodian is required to be established beyond reasonable doubt. Learned Senior Counsel has also taken this court with respect to the mahazar allegedly drawn by PW29- Muddumahadevaiah who during the course of his cross-examination has given vague reply with respect to identifying the iron ore heaps which were recovered and its quantity. The learned Senior Counsel has also taken this court with respect to the evidence of PW34 Abhay Kochrekar who was the shipping executive of 50 Spl.C. No.54/2014 M/s.SMSPL. It is his submission that based on his submission the entire case of the prosecution is relied upon wherein it is stated that the mahazars as per Ex.P.12 were drawn. However, it is his submission that the evidence of PW34 Abhay Kochrekar does not indicate of any material assistance to the case of prosecution. He has also pointed out to the infirmities which are coming out in the mahzar Ex.P.12. It is his submission that during the course of cross- examination certain admissions were obtained from him and in fact he had denied the suggestion of giving any statement at the time of panchanama before the RFO, Ankola. As per the contention of the learned Senior Counsel it has been elucidated during the course of cross-examination that the mahazar was drawn near the gate of Belekeri port. By pointing out the said infirmity it has been vehemently argued that if at all the mahazar was drawn near the gate of Belekeri port, then entire case of prosecution 51 Spl.C. No.54/2014 collapses since the case clearly indicates of drawing mahazar at Belekeri port and also seizure of iron ore heaps by the Investigating Agency. That apart he has also pointed out to the evidence of PW36 Biswajit Das who is the Investigation Officer who has categorically admitted that he does not have any idea about the quantity which was seized by the Forest Department and also he had categorically admitted that the quantity which was recovered was determined on visual observation. The learned Senior Counsel by pointing out to the cross-examination of PW4 Ashok Ramachandra Naik has submitted that the cross- examination would clearly indicate that the heaps of iron ore was not at all measured. It is his simple submission that allegedly a mahazar was drawn on 20.3.2010 by the Forest Authorities and subsequently another mahazar was drawn between 26.3.2010 and 29.3.2010. It is his contention that the procedure which was adopted at the time of drawing mahazar 52 Spl.C. No.54/2014 was not at all in accordance with settled law and in fact it was stated in the mahazar that based on visual observation the quantum of the iron ore was quantified. Thereafter, he has submitted that a complaint came to be filed by some of the Port officials that the officials of M/s.SMSPL were allegedly meddling with the iron ore stored and seized at Belekeri port. After that another mahazar came to be drawn on 2.6.2010 wherein it was noticed that the total extent of the seized iron which was available at Belekeri Port was only 2 lakh MT out of 8 lakh MT which was seized on 20.3.2010. It is his contention that unless the entire stock which was seized quantified by utilizing the scientific method or at least a valid attempt was being made by the competent authorities, it would not be appropriate to accept the contention of the prosecution that the quantum of the iron ore which was found on 2.6.2010 at the time of 53 Spl.C. No.54/2014 alleged mahazar being drawn would not be appropriate.
30. The learned Senior Counsel has also vehemently argued that in the entire case of the prosecution, no whisper has been raised against the customs authority or other persons of the forest department or any other department with respect to playing a conniving role with respect to alleged illegal export of iron ore. It is his submission that for the sake of arguments, if it is to be accepted that certain quantity of iron ore was exported illegally from Belekeri Port, then it would be obvious that the same could not have been exported without the active connivance of the customs authority. However, no fingers are pointed out against them which would once again create serious suspicion over the case of prosecution. He has argued that the court cannot arrive at any conclusion that the entire act was committed by accused M/s. SMSPL and its Managing 54 Spl.C. No.54/2014 Director Satish Krishna Sail in connivance with M/s.Sri Lal Mahal Ltd., Even if it is to be accepted that the port authorities in the form of accused No.1 Mahesh J.Bileye had accorded certain permission, then also it would have been appropriate to indicate the active role played by the customs authority towards illegal export of iron ore. Admittedly, it was the customs authority who were supposed to give final clearance of exporting of any cargo from anchorage port.
31. He has also vehemently argued that the provision of Sec.379 of IPC itself is inappropriate. In fact in order to attract the rigors of Sec.379 of IPC firstly the prosecution is required to establish the basic ingredients and in the instant case no materials are brought on record to indicate that the seized products were forest produces. Further, the entire contention which is alleged in the charge sheet would indicate that certain produce was seized initially by 55 Spl.C. No.54/2014 the Forest authorities and the same was taken over subsequently by the CID and later on by the CBI authorities. However, there were no materials to indicate that the quantity of the iron ore which was seized was indeed forest produces. In order to buttress his contention he has pointed out to the evidence of PW19 R.Gokul who had admitted of not obtaining any permission from competent Court to register the FIR with respect to Forest Offences. As such the compliance of Sec.155(2) of Cr.P.C., itself was dented. It is also argued that PW35 Rajashekar has deposed of obtaining prior permission from the competent court to conduct mahazar. However, no such document were produced in this regard.
32. The learned Senior Counsel has also pointed out to invoking of the provision of Sec.420 of IPC and in order to establish the same it is his submission that the prosecution are required to establish the basic 3 ingredients. However, in the 56 Spl.C. No.54/2014 instant case, no such material has been pointed out. In order to buttress his contention he has relied upon the judgment of the Hon'ble Apex Court reported in (2022) 7 SCC 124 (Vijay Kumar Ghai and others Vs. State of West Bengal and others) wherein Hon'ble Apex Court was pleased to held as follows;
"27. Section 415 of IPC define cheating which reads as under: -
"415. Cheating. --Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat"." The essential ingredients of the offense of cheating are:
1. Deception of any person
2. (a) Fraudulently or dishonestly inducing that person- (i) to deliver any property to any person: or (ii) to consent that any person shall retain any property; or (b) intentionally inducing that person to do or 57 Spl.C. No.54/2014 omit to do anything which he would not do or omit if he were no so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body,mind,reputation or property.
28. A fraudulent or dishonest inducement is an essential ingredient of the offence. A person who dishonestly induces another person to deliver any property is liable for the offence of cheating.
29. Section 420 IPC defines cheating and dishonestly inducing delivery of property which reads as under: -
"420. Cheating and dishonestly inducing delivery of property. --Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
30. Section 420 IPC is a serious form of cheating that includes inducement (to lead or move someone to happen) in terms of delivery of property as well as valuable securities. This section is also applicable to 58 Spl.C. No.54/2014 matters where the destruction of the property is caused by the way of cheating or inducement. Punishment for cheating is provided under this section which may extend to 7 years and also makes the person liable to fine.
31. To establish the offence of Cheating in inducing the delivery of property, the following ingredients need to be proved:-
1. The representation made by the person was false.
2. The accused had prior knowledge that the representation he made was false.
3. The accused made false representation with dishonest intention in order to deceive the person to whom it was made.
4. The act where the accused induced the person to deliver the property or to perform or to abstain from any act which the person would have not done or had otherwise committed."
33. That apart he has also argued that the absence of fraudulence, dishonesty and intentional inducement would clearly debase the entire offence of cheating for which he has relied upon the judgment of 59 Spl.C. No.54/2014 Hon'ble Apex Court reported in (2023) 3 SCC 423 (Deepak Gaba and others Vs. State of Uttar Pradesh and another) wherein it was held as follows:
"14. Thus, criminal breach of trust would, inter alia, mean using or disposing of the property by a person who is entrusted with or otherwise has dominion. Such an act must not only be done dishonestly, but also in violation of any direction of law or any contract express or implied relating to carrying out the trust.
15. However, in the instant case, materials on record fail to satisfy the ingredients of Section 405 of the IPC. The complaint does not directly refer to the ingredients of Section 405 of the IPC and does not state how and in what manner, on facts, the requirements are satisfied. Pre- summoning evidence is also lacking and suffers on this account. On these aspects, the summoning order is equally quiet, albeit, it states that "a forged demand of Rs. 6,37,252.16p had been raised by JIPL, which demand is not due in terms of statements by Shubhankar P. Tomar and Sakshi Tilak Chand". A mere wrong demand or claim would not meet the conditions specified by Section 405 of the 60 Spl.C. No.54/2014 IPC in the absence of evidence to establish entrustment, dishonest misappropriation, conversion, use or disposal, which action should be in violation of any direction of law, or legal contract touching the discharge of trust. Hence, even if respondent no. 2 - complainant is of the opinion that the monetary demand or claim is incorrect and not payable, given the failure to prove the requirements of Section 405 of the IPC, an offence under the same section is not constituted. In the absence of factual allegations which satisfy the ingredients of the offence under Section 405 of the IPC, a mere dispute on monetary demand of Rs. 6,37,252.16p, does not attract criminal prosecution under Section 406 of the IPC.
16. In order to apply Section 420 of the IPC, namely cheating and dishonestly inducing delivery of property, the ingredients of Section 415 of the IPC have to be satisfied. To constitute an offence of cheating under Section 415 of the IPC, a person should be induced, either fraudulently or dishonestly, to deliver any property to any person, or consent that any person shall retain any property. The second class of acts set forth in the section is the intentional inducement of doing or 61 Spl.C. No.54/2014 omitting to do anything which the person deceived would not do or omit to do, if she were not so deceived. Thus, the sine qua non of Section 415 of the IPC is "fraudulence", "dishonesty", or "intentional inducement", and the absence of these elements would debase the offence of cheating.11 Explaining the contours, this Court in Mohd. Ibrahim and Another v. State of Bihar and Others, observed that for the offence of cheating, there should not only be cheating, but as a consequence of such cheating, the accused should also have dishonestly adduced the person deceived to deliver any property to a person; or to make, alter, or destroy, wholly or in part, a valuable security, or anything signed or sealed and which is capable of being converted into a valuable security."
34. By pointing out the aforesaid judgments, he has tried to indicate and impress upon this court that no material evidence is placed which could be construed as reliable material as laid down by the Hon'ble Apex Court in the judgment reported in 1957 62 Spl.C. No.54/2014 SCC OnLine SC 13 (1. Vadivel Thevar 2. Chinniah Servai Vs. State of Madras). It is his submission that since the computer extracts are not supported by mandatory certificates issued under Sec.65-B of Indian Evidence Act, the same cannot be looked into by this Court.
35. That apart he has also argued that as per the provision of Sec.62-A of the Karnataka Forest Act, investigation is to be conducted by an officer not below the rank of RFO which is thoroughly violated in the instant case. Admittedly as per Ex.P.1 the FIR was registered under Forest Act. Hence, the compliance of Sec.62(A) of Karnataka Forest Act was not made. He has also pointed out to the evidence of Investigation Officer PW38 Biswajit Das. It is his submission that the evidence of I.O. would clearly indicate of investigation being conducted in a callous manner, wherein he had failed to collect any relevant materials with respect to the above case. By pointing out the 63 Spl.C. No.54/2014 aforesaid aspects he has submitted that the entire case of the prosecution does not bear any semblance towards commission of the offence by the accused persons. Unless the prosecution establishes beyond reasonable doubt that the accused No.5 M/s.SMSPL by its Managing Director accused No.6 Satish Sail had entered into a criminal conspiracy with accused No.2 M/s.Sri Lal Mahal Ltd., and they in turn in furtherance of their criminal conspiracy had agreed to commit theft of seized iron ore at Belekeri Port with the able assistance and connivance of accused No.1 Mahesh J.Bileye the then Port Officer and later on exporting the same with his support and aid by accused No.5 and 6, the prosecution cannot seek for an order of conviction. It has been vehemently argued that the entrustment to the hands of Port Officer at the inception itself is not established by the prosecution and as such the accused are entitled for 64 Spl.C. No.54/2014 benefit of doubt and accordingly, he has sought for acquitting accused No.5 and 6.
36. Heard the argument of the learned Senior Public Prosecutor and also the learned counsel for accused persons. Perused the oral and documentary evidence on record. Now the points that arise for my consideration are:-
1)Whether the prosecution proves beyond reasonable doubt that the sanction accorded by prosecute accused No.1 Mahesh J.Biliye under the provision of the Prevention of Corruption Act is valid and proper?
2)Whether the prosecution proves beyond reasonable doubt that the accused No.1 to 3, 5 and 6 had entered into criminal conspiracy to cheat and defraud the government and in furtherance of such dishonest intention to cheat and defraud the Government, the accused No.5 M/s.SMSPL represented by accused No.6 Satish Krishna Sail had purchased iron ore heaps seized by Forest Department authorities at Belekeri Port on 15.3.2010 to the extent of 24441 MT belonging to M/s.Sri Lal Mahal Ltd., and in furtherance of the criminal conspiracy 65 Spl.C. No.54/2014 entered into between accused No.2, 3, 5 and 6, the accused No.1 had permitted them to export the same illegally and thereby committed offence punishable under Sec.120-B of IPC?
3)Whether the prosecution proves beyond reasonable doubt that accused No.1 Mahesh J.Biliye being Public Servant working as Port Conservator who was entrusted with iron ore heaps of 24441 MT iron ore fines seized by the Forest Department, which was permitted by the learned JMFC at Ankola to retain the same and in furtherance of the criminal conspiracy, he had permitted accused No.2, 3, 5 and 6 dishonestly and fraudulently misappropriate and convert and to utilise the same for their own use and thereby caused wrongful loss to the Government and committed offence punishable under Sec.409 r/w 120-B of IPC?
4)Whether the prosecution proves beyond reasonable doubt that the accused No.1 Mahesh J.Biliye being public servant and working as Port Conservator during the period of March to May 2010 at Ankola, had entered into criminal conspiracy with accused No.2, 3, 5 and 6 and permitted them to misappropriate and use the 24441 MT of iron ore fines, entrusted to him, which was illegally exported by accused No.5 and 66 Spl.C. No.54/2014 thereby committed criminal with misconduct punishable under Sec.13(1)(c) & (d) punishable under Sec.13(2) of P.C.Act?
5) Whether the prosecution proves
beyond reasonable doubt that
accused No.1 to 3, 5 and 6 in
furtherance of criminal conspiracy entered in to between them during March to May 2010, had fraudulently and dishonestly, to cheat the Government, illegally sold and exported the seized iron ore from heap No.23 weighing 24441 MT, which was exported by accused No.5 M/s.SMSPL illegally and thereby committed offence punishable under Sec. 420 r/w 120-B of IPC?
6)Whether the prosecution proves beyond reasonable doubt that accused No.1 to 3, 5 and 6 in furtherance of criminal conspiracy entered in to between them during March to May 2010, had fraudulently and dishonestly sold and exported the seized iron ore heaps of 24441 MT, which was exported by accused No.5 M/s.SMSPL illegally and thereby committed offence punishable under Sec. 379 r/w 120-B of IPC?
7) What order?
37. After hearing the argument of both the parties and on considering the oral and documentary 67 Spl.C. No.54/2014 evidence on record and also the principles of law laid down in the decisions relied on by both the parties, my findings on the above points are as hereunder:
Point No.1: In the Affirmative Point No.2: In the Affirmative Point No.3: In the Affirmative Point No.4: In the Affirmative Point No.5: In the Affirmative Point No.6: In the Affirmative Point No.7: As per final order for the following:
REASONS
38. Before adumbrating to the factual aspects of the case, it would be appropriate to appreciate the evidence which has been recorded in the above case.
39. PW1 N. Parvathi, was the Under Secretary to Government of Karnataka, who had produced the letter through which original lease agreement dt.6.3.2006, 25.8.2009 and 29.4.2010 entered between Government of Karnataka and Mr.Satish Krishna Sail, the Director of M/s.SMSPL were entered as per Ex.P.2 to 4.
68 Spl.C. No.54/2014
40. PW2 Deepak Waigankar has deposed that he was promoted as Superintendent of Ports and Inland Water Transportation at Karwar and one Mr.Ganesh was the Director of Port in the year 2010 and at that time he was working as SDC in the office of Director of Port and wherein he was called and directed to assist the Port Conservator in controlling the movements of Lorry dumping in the Port Area. He has also deposed of noticing seized iron ore near weigh bridge No.3 being removed partly and site belonged to M/s.SMSPL. During the course of cross- examination, he has deposed a letter dt.24.4.2010, 26.4.2010 and another letter of even date was given to Mr.Pawar, the present Port Conservator. Apart from that nothing much has been elicited from him.
41. PW3 Mahesh Narayana Gaonkar has deposed that on 20.3.2010 he was requested by G.N. Naik and Mohan Sukru Naik to accompany them to Belekeri Port and they had taken the measurement of 69 Spl.C. No.54/2014 the heaps of Iron ore and necessary mahazar was drawn which was read over to him, which indicated that about 5 lakh MT of iron ore was stored at the Port as per mahazar Ex.P.8. Further, it is his evidence that after about 2 ½ months, he was informed about missing of iron ore and accordingly, G.N.Naik had requested him to accompany him wherein they had once again measured the iron ore and found that it was only around 2 lakh MT and again a mahazar was drawn. During the course of cross-examination he has feigned his ignorance about the time at which they had reached the Belekeri port and he has denied the suggestion that no mahazar was drawn nor they had taken any measurement. Learned counsel for accused No.4 and 5 has extensively cross-examined him, wherein he had admitted that he had affixed signature at Ex.P.8 which was written by Mohan naik and G.N.Naik. However, he had denied the suggestion that they had arrived at conclusion of 5 lakh MT 70 Spl.C. No.54/2014 available at Belekeri Port on the basis of assumption and presumption. However, he has also admitted that he had stated in his 161 statement that Mr.G.N.Naik had approximately determined the extent of iron ore at 5 lakh MT. He has also admitted that Belekeri Port was attached to Arabian Sea and the Port consisted of other heaps of iron ore on that day, apart from one which was measured by Mr.G.N.Naik. Further, it was also admitted that there would heavy wind at Port as it was attached to Arabian Sea and has denied the suggestion of water logging in the Port.
42. PW4 Ashok Ramachandra Naik was also another mahazar witness, who has deposed about the mahazar at Ex.P.8 about reaching the Belekeri Port on 20.3.2010 at the request of G.N.Naik. He has deposed that they had measured the iron ore heaps which were to an extent of 5 lakh MT. It is his evidence that again on 2.6.2010 Mr.G.N.Naik Forester had requested them to come to Belekeri Port as the 71 Spl.C. No.54/2014 heaps of iron ore was found to be reduced and on measurement they had noticed that it was only to the extent of 2 lakh MT. During the course of cross- examination by accused No.1 nothing much was elicited. However, during the course of cross- examination by accused No.5 and 6, it was suggested that the heaps of iron ore were not weighed, for which the witness has deposed that the heaps of iron ore were circled with white powder and heaps were measured by using sticks. He has also admitted of giving evidence in connected case about 5 years back wherein he was examined in that case. Further, he has admitted the suggestion that on 2.6.2010 Mr.G.N.Naik had measured the iron ore by looking at it and he has stated that it may be around 2 lakh MT.
43. PW5 Prakash Somanaik has deposed of visiting Belekeri Port on 26.3.2010 at the request of Mr.G.N.Naik as pancha witness and when went inside he has noticed the presence of Mr.Narendra 72 Spl.C. No.54/2014 Hittalamakki, Mr.C.G.Naik and in their presence heaps of iron ore were measured by putting a circle around the heap and after the measurement was completed with respect to 7 heaps of iron ore which was calculated to be 1,43,000 MT and mahazar was drawn as per Ex.P.9. Again on 29.3.2010, he was requested to mahazar witness and another mahazar was drawn as per Ex.P.10 with respect to heaps at Sl.No.8 to 24 containing 3,57,000 MT. Nothing much was elicited during the course of cross-examination by accused No.1 and with respect to accused No.5 and 6 he has deposed that on an earlier occasion he has deposed that there about 100 heaps of iron ore and some of the lorries were loading and unloading the iron ore which were lying adjacent to each other. Further, the quantity was mentioned by measuring it approximately. It was suggested to him that the measurements were made on assumptions and presumptions for which the witness has deposed that 73 Spl.C. No.54/2014 they were weighed, but they were taped and measured.
44. PW6 R.Anand who worked as Seaman at Belekeri Port, deposed that he used to work at the toll and used to collect vehicle levy. It is his evidence that on 24.03.2010, he had received a letter from the Forest Department, for which he has affixed his signature towards receiving the same as per Ex P.11. In the month of August 2010, the staff of the Forest Department, Police Department and some other local persons had visited Belekeri Port and had conducted mahazar of the heaps of Iron Ore as per Ex.P.12. During the course of cross-examination by learned counsel for accused No.1, nothing much elicited from him. During the cross-examination by accused No.2, 3, 5 and 6 he has feigned his ignorance that whether the letter was kept in a envelop cover or not. He admits the suggestion that at tappal section they we do make entries of the letters received through tappal. 74 Spl.C. No.54/2014
45. PW7 Jagadish Tandel has deposed that he was Engine Driver in the year 2010 and was working at Belekeri Port and he was deputed during the relevant point of time and Mr.Ramachandra Naik was also working with him to look after the iron ore heaps. It is his evidence that on 26.4.2010 he had noticed officials of M/s.SMSPL loading iron ore and in spite of their directions not to load the same, but they had continued and as such it was reported to Port Conservator as per letter at Ex.P.13. Again on 28.4.2010 the same act was repeated by M/s.SMSPL who had marked afresh the iron ore heaps by chalk powder, which was again reported as per Ex.P-14. During the course of cross-examination, he has feigned his ignorance about the extent of 81,000 Sq. Mts of area was given to M/s Mallikarjuna Shipping Pvt. Ltd. He has categorically admitted the same. However, he has denied the suggestion that the employees of M/s. SMSPL had not loaded recovered 75 Spl.C. No.54/2014 iron ore at Belekeri. Apart from that nothing much was elicited from him.
46. PW8 N.Y. Sagar has deposed about the issuance of notifications for appointing C.Swamy as Port Officer and other relevant documents indicating of transferring Mahesh J.Bileye to the post of Deputy Conservator at Belekeri Port.
47. The evidence of PW9 Gouse Ali, PW10 Vinod Kumar Pandey have been conducted by following the procedure as contemplated under Sec.296 of Cr.P.C., by filing affidavit since they were only the link witnesses.
48. PW11 Nagesh N.Gaonkar who is also the worker at Belekeri Port has deposed that a vehicle levy of Rs.6/- used to be collected from lorries carrying iron ore to the Port and he used to issue receipt towards the same. He has deposed of receiving letter on 20.3.2010 from Forest Department officials and identified the same as Ex. P.25 which he handed 76 Spl.C. No.54/2014 over to accused No.1 Mahesh Biliye. It is his evidence that on the same day he had received another letter from Forest Department, for which he has issued necessary endorsement and the letter was as per Ex.P.26. He has deposed that on 7th or 8th of August 2010 some officers of CID and DMG had come to the Port to conduct mahazar and they had taken measurement of Manganese Ore which were prevailing at Belekeri Port. During the course of cross-examination nothing much elicited from him.
49. PW12 Suresh Dattur Shetty was the Director of Ports, Mangalore Port Office and has deposed that he worked as Port Conservator at Belekeri. It is his evidence that Belekeri Port consisted of 100 Acre of stacking area which the government had leased to 4 companies namely M/s Aadani Enterprises Ltd., M/s Mallikarjuna Shipping Ltd., M/s Salgoankar Mining and M/s Rajmahal Silks. He 77 Spl.C. No.54/2014 has deposed of handing over 3 volumes of documents and correspondences to the CBI authorities.
50. PW13 Yogesh Anand Shetty has deposed that in the month of October 2007 he was promoted as Deputy Port Conservator and was deputed to Belekeri Port, wherein accused No.1 was working as Deputy Port Conservator, he has deposed about the procedural aspects and the manner in which the permits will be issued. Further, it is his evidence that Mr.N.M. Gaonkar received a letter dated 20.03.2010 from Range of Forest Officer, Ankola for having handed over 5 lakhs M.T. of Iron Ore seized by the Forest Department for safe custody as per Ex.P.25. He has identified Ex.P.31 the letter addressed by Adani Enterprises about the iron ore cargo belonging to 30 exporters where 4,14,357.163 MT and he has also identified the letter addressed by M/s.SMSL on 6.5.2010 as per Ex.P.32 stating the extent of cargo belonging to 21 exporters as on 20.3.2010 was 78 Spl.C. No.54/2014 2,59,279 MT. He has also identified the letter which was received by accused No.1 as per Ex.P.33 on which it was initialed by him. He has also deposed that accused No.1 might have seen the letters and Mr.Mahesh Biliye has written letter on 23.3.2010 to Deputy Conservator of Forest, Dharwad mentioning about the earlier correspondence on 20.3.2010 and had informed about the seizure of iron ore by Forest Officials on as is where is basis. He has also identified initials made by accused No.1 Mahesh Biliye for receiving the letter. It is his evidence, they had received a letter from Forest Department with respect to seizure of the property at Ex.P.1 which was received by R.Anand by affixing his initials. He has also identified the correspondences which were made by Mr.Mahesh Biliye to the Shipping Companies to follow and adhere to the orders of the Hon'ble High Court. He has also identified the attendance register and apart from that nothing much has been elicited 79 Spl.C. No.54/2014 from him. During the course of cross-examination, he has denied the suggestion that the initials on letter at Ex.P.33 was not made by Mahesh Biliye. However, he has admitted that he was not present at the time of drawing mahazr. He has also admitted the suggestion that accused No.1 Mahesh Biliye had addressed a letter to Deputy Conservator of Forest, Karwar on 23.3.2010 stating that the seizure of iron ore will come within ambit of stevedores. He was subjected cross-examination by the learned counsel for accused No.2 to 6 and he has admitted that there were no devises available in the Port to weigh the quantity of iron ore and with respect to measuring the quantity by using Bamboo sticks and tapes, the witness has deposed that the same method was adopted by the Department of Mines of Geology. He has also identified that as per Ex.P.45 quantity of unseized materials were also mentioned and he had not personally handled the shipping bills. 80 Spl.C. No.54/2014
51. PW14 Nagesh B.Gunaga is also another mahazar witness and has deposed that on 7.8.2010 the then Tahasildar Sri, Uday Kumar Shetty had asked him to accompany Sri. Muddu Mahadevaiah, DSP, CID, Bengaluru to assist them to draw mahazar of the Iron Ore at Belekeri Port. Accordingly, he has deposed of drawing mahazar between 07.08.2010 to 09.08.2010 and has deposed that there were about 56 heaps of Iron Ore stored at the Belekeri Port. At that time, they had taken the assistance of the officials of Department of Mines and Geology, Port officials, Forest Department Officials and also the officials of M/s Sri. Mallikarjuna Shipping Pvt. Ltd., M/s Adani Enterprises, M/s Salgaonkar Mining Industries and M/s Rajmahal Silks. He has further deposed that the said officials had measured the heaps of Iron Ore by using a bamboo stick and tapes. Out of 56 heaps of Iron Ore there were totally 34 heaps of Iron Ore belonging to M/s.Adani Enterprises and 16 heaps of 81 Spl.C. No.54/2014 Iron Ore belonging to M/s.Mallikarjuna Shipping Pvt. Ltd., 4 heaps of Iron Ore belonging to M/s.Salgaonkar Mining Industry and 2 heaps of Iron Ore belonging to M/s.Rajmahal Silks. He has also identified his signature affixed to the mahazar at Ex P-12. During the course of cross-examination by accused No.2 to 6, he has deposed that he was not served with any written notice to the pancha witness and also it is his statement that in order to measure the quantity of the heaps, no devises being utilised and when it was suggested that the heaps of iron ore were measured through Bamboo sticks and tapes, the witness has deposed that no such instrument can be used to measure the such huge quantity of iron ore. Apart from that nothing much elicited.
52. PW15 Anand L.Idurkar has deposed that he has worked at customs department as UDC and during the period 2007 to 2010 he was working at Belekeri Port as Superintendent of Docks. He has 82 Spl.C. No.54/2014 deposed about the procedures with respect to arrival of cargo and its permission being accorded for export. He has identified various letter correspondence made from Department. He has also identified the shipping bills, boat notes, etc. During the course of cross- examination by the learned counsel for accused No.1 he has admitted that as per Sec.7 of Customs Act, the Port Area was notified as Customs Area and the duplicate shipping bill would be sent back after completion of export along with MATE receipt. Further, he has also stated that the Port Department will not issue no due certificate, but they will issue Port Clearance Certificate. During the course of cross- examination by accused No.1 he has admitted that they had given customs clearance since it was in accordance with law and he had not ascertained whether the iron ores were extracted from Revenue land or Forest Land. He has also admitted that he does not have accurate information with respect to 83 Spl.C. No.54/2014 the ores seized at the Port or by their department. Further, he has admitted that as per Foreign Trade Policy, the exporting of iron ore could not be banned and at that point of time the iron ore which were brought to the Port were exported. Further, he has admitted that he had stated the total extent of iron ore as on 20.3.2010 was 8.06 lakh MT.
53. PW16 M.D. Todurkar, is the Forest Department official who has deposed that he had worked as ACF during the relevant period of time and after assuming the case, the State of Karnataka has handed over the investigation to CID authority. Apart from handing over the document, no material evidence was recorded from him.
54. PW17 Krishna Narayan Kelaskar who was the Manager of M/s.SMSPL has deposed that he used to receive the vehicles with cargo, stock the vehicles and supply the stocks to the barges. At that time one Vishal Gopal Harikant (CW-47), Abhay (CW-45), Sri. 84 Spl.C. No.54/2014 Ullas Salunke and Mangaldas Kamath were also working with him. He has also deposed of receiving letter from the competent Port Officer on 29.3.2010 and it is his evidence that they were not requested to identify the iron ore heaps at Belekeri Port. However, they were given information with respect to the iron ore heaps seized at Belekeri Port as per Ex.P.38. Further, he has deposed that they had issued statement of inward and outward cargo of various companies pertaining to M/s.SMSPL, M/s.ILC Limited, M/s.Swasthik Diwakar, M/s. Sri Lakshmi Ventakeshwara Minerals, Sri. PJS Overseas Ltd., Sri. Lal Mahal Ltd., through different vessels. He has also deposed of furnishing details with respect to export of iron ore along with quantity for the period 21.3.2010 to 31.5.2010 as per Ex.P.64. During the course of cross-examination by accused No.1 he has admitted that he has stored ores belonging to the companies other than the one which were seized by Forest 85 Spl.C. No.54/2014 Authorities and he has denied the suggestion that the records furnished by them were not actual stock details. During the course of cross-examination by accused No.2, 3, 5 and 6 he has stated that they had furnished the stock details as well as inward from 14.2.2010 to 20.3.2010 and also the inward list from 21.3.2010 to 30.3.2010.
55. PW18 Vishal Gopal Harikant who was the Customs House Agent has deposed about the procedures which were being adopted by the customs authority with respect to export of materials. He has also deposed that Mr.Abhay Kochrekar was the shipping executive of M/s.SMSPL for which he was the Customs House Agent and it is his evidence that Abhay Kochrekar used to take care of MATE receipts, bills of lading, G.R.Forms, statement of facts, storage planning and draft survey reports and Mr.Satish Krishna Sail was the Chairman and Managing Director of the Company. He has also identified the 86 Spl.C. No.54/2014 hand-writing and signatures of Mr.Ullas Salunke who was the accountant, Krishna Kelaskar, who was the Manager and also Madhukar Kulkarni who was incharge of Loading and Shipping at the site of their company. It is evidence that M/s.SMSPL were the only service providers of the plot area to various companies indulged in export at Belekeri Port and he has identified the correspondence made on behalf of their company. It is his evidence that they had furnished necessary details with respect to the stock maintained by M/s.Sri Lal Mahal Ltd., which were 24441 MT. He has also identified the letters addressed to the Stevedores by the Port Conservator to adhere to the rules and regulations and also he has identified the letter dated 26.4.2010 which were addressed to M/s.SMSPL directing them not to load the stack in the Port Premises. Further he has deposed that they had furnished details with respect to the export of iron ore, statement of inward and 87 Spl.C. No.54/2014 outward cargo movement of various companies including their company. He has also identified the letter dated 28.12.2011 as per Ex.P.66 and Ex.P.66A indicating the total extent of export of iron ore from 20.3.2010 to 31.5.2010. He has specifically deposed that Mr.Satish Krishna Sail and Ullas Solanki were looking after the sales of the Company. During the course of cross-examination by accused No.1 he has deposed that accounts details were furnished by Madhukar Kulkarni and they had handed over the documents to CBI as well as CID authorities which were prepared by Madhukar Kulkarni. During the course of cross-examination by accused No.2, 3, 5 and 6, he has admitted that the Port Officials have not given any information with respect to seizure of iron ore. He has admitted that the iron ore which were brought in to the Port area were properly recorded and noted in the concerned security register. 88 Spl.C. No.54/2014
56. PW19 R.Gokul who was the Deputy Conservator of Forest has deposed that during 2009 to July 2011 initially no port activities were being carried out. However, in the month of December 2009 he had noticed several lorries plied from the National High way entering Karwar and Belekeri Port and he had suspected of huge trafficking of mining lorries. Accordingly, he had requested his officials to verify the valid documents on 7.3.2010 and at that time they had seized about 24 lorries and he noticed that they were not carrying necessary Forest Permits. It is his evidence that on 15.3.2010 their officials had visited the Ports at Karwar and Belekeri and on verifying the documents, as per Rule 162 the Port authorities had failed to produce relevant documents and accordingly, case under Forest Act came to be registered in FOC No.17/2009-10 at Belekeri Port as per Ex.P.80. Since, the offences were non-cognizable in nature, they had requested the jurisdictional court 89 Spl.C. No.54/2014 to accord permission and hence, on 18.3.2010 necessary permission came to be accorded as per Ex.P.81 and 82. He has deposed that on 20.3.2010 their officials had visited Belekeri Port and had verified whether any documents available with the Port authorities and since they had failed to produce necessary documents, the iron ore present at Belekeri Port were seized on as is where is basis by drawing necessary mahazar, which was handed over to the custody of Mahesh Bileye, who had issued necessary acknowledgment. It is his evidence that as per occular estimates, the quantity of iron ore stored was mentioned as 5 Lakh MT. He has deposed that on 24.3.2010 the then Port Conservator Mahesh J.Bileye had asked him to send the extent of seized iron ore and accordingly, their officials had visited the Port on 26.3.2010 and 29.3.2010 and marked iron ore heaps by measuring the same by circumference method and it was reported that the seized iron ore was in 24 90 Spl.C. No.54/2014 heaps. He has also deposed that on further investigation it was noticed that the actual quantity which was seized were 8,05,991 MT and 5,00,000 MT as submitted by stevedores to the Port Conservator. He has further deposed that on 12.4.2010 several applications were filed seeking for release, which were rejected and the same were challenged before the Hon'ble High Court of Karnataka. However, in the interregnum, he has read in the newspaper report that only a small portion of the seized iron ore were remaining at Belekeri Port and accordingly, he had requested the ACF to look in to the same, on which he had visited the Port on 2.6.2010 and instructed him that the news which was published was true. Accordingly, the ACF was directed to file a complaint which came to be registered as Cr.No.189/2010 as per Ex.P.83 against Port Conservator and others. He has also deposed that writ petition was filed in W.P.No15744/2010 as per Ex.P.87 and the forest 91 Spl.C. No.54/2014 authorities had not given any permission to export iron ore from the port area and another Criminal Petition was filed before the Hon'ble High Court of Karnataka, Dharwad Bench in Crl.P.No.7645/2010 wherein it was sought to quash the FIR. However, the Hon'ble High Court was pleased to dispose the criminal petition and case registered in FOC was not quashed.
57. During the course of investigation by ACF, they had collected materials with respect to List of exporters and stevedores and they had also noted that they had failed to produce any valid documents. No valid documents for having paid the Royalty towards export of mines, minerals dispatch permits and trip sheets and forest permits were produced.
58. During the course of cross-examination by accused No.1, much suggestions were made with respect to procedural aspects and seizure of 5 Lakh MT is denied. He has admitted that export permission 92 Spl.C. No.54/2014 were to be given by the Exports Authority and he has denied the suggestion that JMFC court has directed to retain the seized mines with their department itself. During the course of cross-examination by accused No.2, 3, 5 and 6 he has deposed that it was true to suggest that till reading of newspaper he had not received any complaint with respect to transportation of iron ore. Further, he has admitted that by looking in to the iron ore it cannot be ascertained whether it is a forest produce. He has also suggested that M/s.Sri Lal Mahal Ltd., had not filed any application seeking for release of iron ore before JMFC court at Ankola.
59. PW20 Yogesh S. Pal was the Manager of M/s.Cargo Links and he was also authorised Customs House Agent and he has explained about loading of cargo, collection of MATE receipts and draft survey reports from stevedores. He has deposed that in the year 2013 the CBI had enquired about CHA 93 Spl.C. No.54/2014 licence copy and also agreement between M/s.Adani Enterprises, M/s. SMSPL and he has also deposed of identifying the account ledger extract pertaining to M/s.SMSPL as per Ex.P.89 and he has deposed that as per their statement Ms.SMSPL has exported around 54766 MT of iron ore through MV Mandarin Harvest as per Ex.P.90A. He has also identified the shipping bills which were prepared by him as per Ex.P.49 and 50. During the course of cross- examination he has deposed that the exporters had furnished indemnity bond towards materials exported and they were issued in favour of Customs Department.
60. PW21 Venkatesh H.R. who was the General Manager of M/s.Adani Groups has deposed that he was required to report to the Port Head and at that time they were the Port service providers providing services to various exporters for exporting Cargo through anchorage operations. He has also deposed 94 Spl.C. No.54/2014 about the procedures which were being followed by them and has deposed that in the month of March 2010 he was instructed by the Port security guard about seizures being made in their premises. He has also deposed that as they were not knowing about the exact nature of seizure they had requested their customers to visit the Port and to identify their cargo. It is his evidence that on 15.4.2010 he had received a communication requesting to provide information with respect to stack seized and marked, name of cargo as per Ex.P.28. He has deposed that M/s.Sri Lal Mahal Ltd., as per Ex.P.31 and Ex.P.43. During the course of cross-examination by accused No.1 nothing much was elucidated from him. However, he has denied the suggestion that the leased area would be under their control and has stated that it was a Customs Notified Area which is transit storage area for export bound cargo which would be supervised and controlled by Port and Customs Officers. He has 95 Spl.C. No.54/2014 also specifically deposed that Mr.Mahesh Biliye was the Deputy Conservator of the Port and has denied the suggestion that the guarding of Ports were not the duty of Port Authorities. During the course of cross- examination by accused No.2,3,5 and 6 he has specifically stated that probably 93069.21 MT of iron ore was seized by Forest Department and has admitted that even on that day around 22778.10 MT of iron ore was lying in their leased area at Belekeri Port.
61. PW22 Arun Atmaram Pawar has deposed that he was working at Tadri Port Office and was deputed to Belekeri Port and on 8.6.2010 Regular Port Officer Mahesh Biliye was placed under suspension and in his place one Suresh Shetty was posted as Port Officer. He has deposed that on 20.3.2010 Forest Department officials had seized iron ore at Belekeri Port and they came to know about seizure on 24.3.2010. Further, he was present at 96 Spl.C. No.54/2014 Belekeri Port on 26.3.2010 when they had visited the Port to mark the seized iron ore and at that time, the employees of accused No.5 had objected it. As such he had reported to their office and accordingly, they had accompanied the place where the heaps of iron ore belonging to M/s.SMSPL were stored. Further on 26.4.2010 he came to know that the employees of M/s.SMSPL had stolen the sold iron ore, which he had got it brought to the notice of his higher authorities and since they had not taken any action, he had addressed a letter on 27.4.2010 through Post. It is his evidence that he came to know about removal of seized iron ore from Ramachandra Naik, Light Keeper and Jagadish Tandel who was the driver and he has also identified the letter which was addressed to him as per Ex.P.13, for which he has affixed his signature as per Ex.P.76. It is his evidence that again on 29.4.2010 the employees of accused No.5 were meddling with the seized iron ore at about 6.00 p.m. 97 Spl.C. No.54/2014 in the evening and also at about 11.30 a.m. on 29.4.2010 and on the basis of the oral submission he had report to the Port Conservator at Belekeri Port intimating about shortage of iron ore as per Ex.P.14. It is his evidence that on 2.6.2010 the Forest Department Authority had visited Belekeri Port and they seized iron ore kept and had on inspecting the same, they had stated that about 2 lakh MT of iron ore found which was less than the actual quantity and had prepared a mahazar for which he has not affixed his signature. During the course of cross- examination by learned counsel for accused he had admitted that accused No.5 M/s.SMSPL had obtained customs clearance for shipping the Iron Ore.
62. Later on he had identified the letters which he had addressed to Stevedores i.e., M/s Adani Enterprises, M/s Sri. Mallikarjuna Shipping Pvt. Ltd., M/s Salgaonkar Mining Industries and M/s Rajmahal Silks requesting them to follow the prescribed 98 Spl.C. No.54/2014 procedures under the Karnataka Forest Rule 1969 as per Ex.P.93. He has also deposed of sending the copy of the letter to Port Office at Karwar and also lodging a complaint before the concerned Police at Ankola Police Station on 26.4.2010. Apart from denial nothing much was elicited during the course of cross- examination by accused No.1 and during the course of cross-examination by accused No.2, 3, 5 and 6 it was suggested he was not knowing personally about the transactions. He had denied the suggestion that no incident as alleged in Ex.P.14 had taken place.
63. PW23 Siddalinga Swamy Viraktamath was the Under Secretary at Ports and Inland Water Department, has deposed about according necessary sanction to prosecute accused No.1 Mahesh Biliye. Apart from denial nothing elicited from him.
64. PW24 M.Ganesh who was the Director of Port at Karwar and he has explained the duties and functions of Port Officer, Port Conservator, and 99 Spl.C. No.54/2014 Deputy Port Conservator. He has deposed that C.Swamy was the Port Conservator at Karwar and Mahesh Biliye was the Deputy Port Conservator who was also holding charge of Port Conservator at Belekeri. He has also deposed about receiving communication from Government on 3.10.2010 directing him to verify necessary forest permit and other licences before letting in any minerals to the Port area. He has deposed of looking in to the same and again on 30.10.2010 he had issued circular to the Port authorities to adhere to the directions of the Government. He has also deposed that in the month of June-2010 he had visited Belekeri Port along with concerned Minister Sri Krishna Palemar, who had enquired the then Deputy Port Officer Mahesh Biliye with respect to missing stock, DMG permit and other licences, for which he could not give convincing answers and accordingly, he was placed under suspension. During the course of cross-examination 100 Spl.C. No.54/2014 by accused No.1 he has denied the suggestion that the job card does not indicate of imposing duty on the Port Conservator to collect DMG Permit and other documents. Further, he has denied the suggestion that the duty is not mentioned under Indian Ports Act and also as per the Job Chart. It was also suggested to him that the indemnity bonds were executed by exporters for which the witness has admitted and has deposed that even if indemnity bonds were executed, still Port Authorities were required to verify whether the materials intended to be exported were following the impugned law as directed by the Government, apart from that nothing much was elicited from him.
65. PW25 Ashish Mujumdar was the Senior General manager of M/s.Lal Mahal Ltd., has deposed that in the year 2013 he was enquired by CBI with respect to illegal purchase and sale of iron ore material and he has furnished necessary documents which were recovered under the Seizure memo 101 Spl.C. No.54/2014 Ex.P.98 and also the document was identified by him as per Ex.P.99. He has also identified the board resolution dt.30.9.2010 wherein he was authorised to look after the affairs of the company which is as per Ex.P.100. He has deposed that their company was into export of agricultural products and later on they had ventured in to export of boxite and iron ore for which he was given necessary instructions and directions by Premchand Garg and Susheel Kumar Valecha who were the Managing Director and Director of the Company. He has deposed of procuring iron ore materials on FOR basis nearly to an extent of 35400 MT of iron ore from various companies and had stored in the area belonging to M/s.SMSPL. He has deposed that he used to report about the minerals, its grade and quantity to the Directors on the basis of the information provided by his team at Karwar. He has also deposed that they were worried about the grade of the materials procured and also the quantity and 102 Spl.C. No.54/2014 since the Port was to be closed due to monsoon and also the iron ore were seized by Forest Authorities, they were thinking about the remedies available to overcome the situation and at that time, they had received call from M/s.SMSPL that they were ready to purchase iron ore materials stored in their plot area. He has deposed that the same was intimated to their Managing Director and Director, who had decided to sell the cargo to M/s.SMSPL and as such he had accompanied Susheel Kumar Valecha to Karwar to meet accused No.6 Satish Sail. After completing the trade formalities, they had prepared a draft copy which was sent through e-mail to their company and later on it was finalized by Managing Director and Director, who had sent it back to M/s.SMSPL and the same was approved by M/s.SMSPL which is as per Ex.P.7. He has also deposed that on completion of contract M/s.SMSPL had paid Rs.10 Crore through RTGS to their company and handed a post dated 103 Spl.C. No.54/2014 cheque for Rs.5 Crore in the name of their company which were as per Ex.P.71. He has deposed that a writ petition was filed before the Hon'ble High Court of Karnataka by their company for which the initiative was taken by M/s.SMSPL and later on it was dismissed. It is his evidence that they had exported iron ore through MV Riva Wind to an extent of 9000 MT and around 11497 MT through MV Mandarin Harvest and the remaining cargo of 14000 was remaining at Belekeri Port. He was not subjected to cross-examination by accused No.1. During the course of cross-examination by accused No.2 and 3 he has admitted that M/s.Sri Lal Mahal Ltd., were not the mine owners and as they were not the owners, necessary permit and other licences were required to be furnished either by mine owners or suppliers. He has also admitted that their company was not having any plot allotted at Belekeri and they had stored in the area belonging to M/s.SMSPL. He has also 104 Spl.C. No.54/2014 admitted the suggestion that the exporters had availed the services of M/s.SMSPL. He has admitted that the major decisions were being taken at their head office at Delhi. He was confronted with the statement recorded under Sec.161 of Cr.P.C., which would indicate that about 10000 MT of iron ore was exported. During the course of cross-examination by accused No.5 and 6 he has admitted that he had not read the contents of writ petition and it was signed by Mr.Pramod Seth and the instructions were given by Susheel Kumar Valecha. He has denied the suggestion of filing the writ petition voluntarily before the Hon'ble High Court and he has pointed out to Clause-10 at the Agreement entered between them at Ex.P.70 wherein it was stated that M/s.SMSPL would provide necessary legal assistance.
66. PW26 B.S.Muddumahadevaiah was the I.O. appointed by CID authorities and has deposed that on 8.6.2010 a private complaint came to be filed before 105 Spl.C. No.54/2014 learned JMFC, Ankola by Assistant Conservator of Forests, Ankola Sub-division Sri. Narendra Hithalamakki which was registered as PCR No.55/2010 wherein the learned JMFC Court had directed to register the complaint and investigate by invoking the provision of Sec.156(3) of Cr.P.C., wherein it was stated that about that about 5 lakh MT of iron ore were stored at Belekeri Port which was seized by the Forest authorities and on the basis of the complaint was registered as FOC 17/2009-10 of which custody was handed over to the Port Conservator. It is also stated that on 6.5.2010 the Port Conservator had confirmed that the total iron ore stocks which were available 8,05,991MT and whereas on 2.6.2010 it was reported in media that the iron ore seized were exported illegally and hence, they had visited the Port on 2.6.2010 and on verifying the same, they found that majority of iron ore were missing, wherein the Forest Authorities have come to 106 Spl.C. No.54/2014 a conclusion that about 6 lakh MT of iron ore were found to be missing and only 2 lakh MT were available. As such they had registered a complaint wherein Port Conservator Mahesh Bileye was arraigned as accused person. Further, it is stated that on 8.6.2010 Mr.Narendra Hittalamakki had filed another requisition to add the provision of Sec.379 of IPC and he had also verified the 5 mahazars which were drawn on 15.3.2010, 20.3.2010, 26.3.2010, 29.3.2010 and 2.6.2010. He has also deposed of collecting necessary document with respect to export from the Arun Atmaram Pawar and on 7.8.2010 he had requested the Tahasildar, Ankola to depute his officials for the purpose of drawing mahazar at Belekeri Port. He has also requested the Department of Mines and Geology to depute their officials who were well versed with the measuring the quantity of iron ore. On 7.8.2010 at the first instance, they had visited leased area pertaining to M/s.Adani 107 Spl.C. No.54/2014 Enterprises. At that point of time, their representatives who were present shown the heaps were minerals of their company were stored. It is his evidence that there were totally 34 heaps of iron ore and he had numbered it as AC1 and after that he had visited the leased area of M/s.SMSPL who were being represented by Mr.Abhay Kocharekar who had shown 16 heaps of iron ore pertaining to their company which were uniquely marked as MC1 to MC16. It is his evidence that they had visited the area pertaining to Salgaonkar Mining Industries and also M/s Rajmahal Silks and after that they had drawn the mahazar as per Ex.P.12. He has also deposed of recovering documents from Port Officer, ILC Industries and later on 31.8.2010 he has filed requisition to the JMFC Court to arraign another 45 companies who were involved in the illegal export of iron ore. During the course of cross-examination nothing much elicited from him. 108 Spl.C. No.54/2014
67. PW27 Shivananda H.Chalavadhi who was the Police Inspector of Ankola Police Station has deposed that on 8.6.2010, he had received the copy of private complaint along with the directions issued by the JMFC court at Ankola in PCR No.54/2010 wherein it was directed to register the case and investigate the same. It is his evidence that on 8.6.2010 at about 5.10. P.m., the complainant Hittalamakki, Asst. Conservator of Forest visited the Police Station and had lodged a second complaint as per Ex P-85 stating that the 11 companies had joined together and stolen the Iron Ore which were stored at Belekeri Port. He has also deposed of obtaining permission from the JMFC Court to invoke the provision of Sec.379 of IPC.
68. PW28 Ravishankar G. Goankar, who had worked as Superintendent of Customs at Belekeri Port , during the relevant period has identified the 109 Spl.C. No.54/2014 Shipping bills and other connecting documents as per Ex.P.107.
69. PW29 Mr.Susheel Kumar Valecha who had turned approver has deposed that he had joined the Company as Financial Executive and was made as Director of the Company in the year 2005 and was looking after the banking operations of the company for about 10 years till 2015 and as Director he used to look after the banking operations of the company as well as any other job assigned to him by Premachand Garg. He has deposed of purchasing 35370 MT of iron ore from different purchasers and storing it in the plot area allotted to M/s.SMSPL and a portion of materials i.e., to an extent of 24441 came to be seized by Forest Authorities on 29.10.2010 and at that time, PW25 Ashish Mujumdar had brought a proposal that MD of M/s.SMSPL was interested to purchase the same, which was discussed with their MD Premchand Garg wherein it was directed to him 110 Spl.C. No.54/2014 to visit Karwar and to finalise the sale. It is his evidence that on his instructions they had visited Karwar on 22.4.2010 and had met Mr.Satish Sail and after discussing the terms and conditions they had returned back to Delhi on 24.4.2010 wherein PW25 had stayed back at Karwar and got the contract finalized for sale of around 35000 to 45000 MT of iron ore to M/s.SMSPL and they had received a sum of Rs.10 Crore to their company account which was later on exported by M/s.SMSPL through MV Mandarin Harvest and MV Riva Wind. It is his specific evidence that Premchand Garg , Ashish Mujumdar and SMSPL were aware of seizure and in spite of it they had sold the same. He has also deposed of filing Writ Petition in WP 15744/2010 at the instance of Mr.Satish Sail MD of M/s.SMSPL on 7.5.2010 and Mr.Pramod Seth was deputed to sign vakalath by passing Board Resolution and since no relief was granted by the Hon'ble High Court and as the iron ore 111 Spl.C. No.54/2014 was already sold, they had decided to withdraw the writ petition and accordingly, memo was filed on 16.7.2010, wherein the Hon'ble High Court had permitted them to withdraw on 3.11.2010. Accused No.1 had not cross-examined the witness. During the cross-examination by accused No.2 and 3 he has deposed that he had voluntarily surrendered before the court and was remanded to J.C. and during his custody he had filed two bail applications, which were rejected by the court. Further, he has deposed that he was admitted to bail on 12.2.2015. He has also admitted of being arraigned as accused No.4 and lateron filing discharge application which came to be rejected and after about 8 years he had decided to become an approver due to his failing health and personal reasons. He has admitted the suggestion that Mr.Premchand Garg was the MD and transactions were made in the name of the Company. During the course of cross-examination by accused 112 Spl.C. No.54/2014 No.5 and 6 he has admitted that as per his knowledge, the seizure had taken place on 29.3.2010 and he had not gone through any records to verify the same. He has also admitted that he was not party to the contract or the authorised signatory.
70. PW30 Chandrappa.N. and PW31 Mohan.J were the Police Inspectors who had assisted the I.O. of CID to conduct part investigation.
71. PW32 Ganapathi Nagappa Naik, retired Section Forest Officer, has deposed of visiting Belekeri port on 15.3.2010 along with Mohan Sukru Naik, Panchas Chandrashekar Vannappa Naik and Vinay Doddathamma Pant and has deposed that they had found huge quantity of Iron Ore dumped inside the Port premises and on enquiry with Port Conservator Sri Mahesh Biliye about Forest Pass and permit, he was unable to produce the same and accordingly, they had conducted mahazar as per Ex. P.80 and on the basis of the same he had registered Case in Forest 113 Spl.C. No.54/2014 Case No.17/2009-10 on 15.03.2010 and handed over the case file to Sri. C.G.Naik, R.F.O. Ankola for investigation. He has further deposed that Mr.C.G.Naik had sent FIR to JMFC, Ankola, wherein permission was granted to investigate the case on 15.3.2010 and later on he had handed over the case file to C.G.Naik. He has further deposed that Mr.C.G.naik sent the FIR to JMFC, Ankola, wherein permission was granted to investigate the case and on 18.3.2010 as per Ex. P.81. Accordingly, on 20.03.2010, he had accompanied Sri. C.G. Naik, R.F.O. to Belekeri Port along with Panchas and found 24 heaps of Iron Ore dumped in the Belekeri Port and they had seized the same and handed over to Sri. Mahesh Biliye, Port Conservator, Belekeri Port for safe custody, wherein he had made an endorsement on the letter dt.20.03.2010 as per Ex P-25. He has also identified the mahazar at Ex.P.8. It is his evidence that they had estimated 5 lakhs M.T. of Iron Ore kept 114 Spl.C. No.54/2014 in heaps inside the Belekeri Port area. He has further deposed that on 26.03.2010, once again he went to Belekeri Port along with Mohan Sukra Naik and drawn Mahazar identifying heaps No.1 to 7 which were approximately containing 1,43,000 M.T. of Iron Ore and he has also deposed of drawing another mahazar as per Ex.P.9 for which necessary signature of witness were obtained and another mahazar on 29.3.2010 as per Ex.P.10. It is his evidence that on 29.03.2010 they had identified heap No.8 to 24 approximately containing about 3,57,000 M.T. of Iron Ore and had directed the Port Conservator to maintain status quo with respect to the iron ore seized. It is his evidence that they had visited Belekeri Port on 07.08.2010 and wherein measurement of the heaps was made between 07.08.2010 to 09.08.2010 as per Ex.P.12. Later on during the course of cross- examination he has admitted that Belekeri Port was under the Control of Port Conservator and he do not 115 Spl.C. No.54/2014 know whether the said place was leased out by the Government of Karnataka. He has denied the suggestion that no iron ore were identified by them. It is his evidence that they had not registered case against stevedores and he does not have personal knowledge as to who had stocked iron ore at Belekeri Port. He has also admitted that they had not mentioned height, circumference of the heaps of iron ore, but he has denied the suggestion that they had not handed over iron ore to the custody of Mahesh Biliye. He was subject to cross-examination by the learned counsel for accused No.2 ,3, 5 and 6, wherein he has admitted that they had not received any request from higher officer to visit Belekeri Port nor they got any instruction to measure iron ore. It is his specific evidence that they had not measured the quantity of iron ore on 15.3.2010 and has deposed of registering FIR on the direction of his Senior Officer and they had not obtained any permission from the 116 Spl.C. No.54/2014 Court to conduct the mahazar. He has deposed of finding about 24 heaps of iron ore at Belekere Port on 20.3.2010 which they had seized and they had not measured each heap independently.
72. PW.33 Takat Singh Ranawat has deposed that he was posted as Assistant Conservator of Forests on Special Duty at Karwar Subdivision during the year 2010 and had taken up the investigation of the case, registered in FOC 17/2009-10. He has deposed several mining companies, traders, exporters of iron ore had approached their office requesting for release of iron ore seized at Belekeri Port and during his tenure several permits and its xerox copies were handed over to our office seeking for release of seized Iron Ore. He has identified the permits at Ex.P.109 pertaining to M/s.Sri Lal Mahal Ltd., and has deposed that he had serious doubt with 117 Spl.C. No.54/2014 respect to its genuineness Apart from denial nothing much was elicited from him.
73. PW34 Abhay Kochrekar has deposed that he joined as Supervisor at M/s.SMSPL and during the year 2010 he was working as Shipping Executive who was required to collect document from exporter and submit the same to Customs House Agent (CHA for short). He has deposed that he used to collect the Contracts entered between the parties, invoices and used to hand it over to the CHA. He has also identified the documents pertaining to M/s.SMSPL and also the documents which were produced to CID / CBI authorities. He has deposed that the documents at Ex.P.119 bears his signature. He has further deposed that he was called at the time of mahazar and his supervisor had shown the heaps of iron ore belonging to their company and also affixed his signature to the mahazar at Ex.P.10. During the course of cross-examination, he has admitted that he 118 Spl.C. No.54/2014 was not having personal information with respect to the stocks stored at Belekeri Port and has admitted that as he was not present at the time of mahazar, he could not say the time of which had commenced and ended. Apart from that nothing much has been elicited from him.
74. PW35 T. Rajashekar and PW36 Biswajith Das were the I.O.s who had conducted investigation and filed final report.
75. Point No.1: With respect to the aforesaid points for consideration, firstly it is required to determine whether the sanction accorded by competent authority, to prosecute accused No.1 Mahesh J.Biliye who was working as Port Conservator at that point of time is valid and proper. There is no dispute with respect to the fact that Mr.Mahesh J.Biliye was working as Port Conservator during the period 2009-10. PW.23 Siddalingaswamy Viraktamath was the Under Secretary at Port and Inland Water 119 Spl.C. No.54/2014 Department and he in his chief-examination has deposed that in the year 2013 he was contacted by CBI authorities to accord sanction to prosecute accused No.1. Along with the requisition necessary documents i.e., FIR, statement of Witness, mahazar and other details were furnished. Since, the Port Conservator at that time was coming under Port and Inland Water Department, for which the Govenment of Karnataka was the appointing authority as well as competent authority for remove him from services, he had verified the materials which were furnished by the CBI authorities. He has also deposed that necessary permission was sought to prosecute accused No.1 for the offences punishable under Sec.120B, 409 of IPC and also under various provisions of Prevention of Corruption Act. It is also been deposed by him that since materials were available from the documents which were furnished, he had placed the same before the learned Minister of 120 Spl.C. No.54/2014 the concerned Department through Prl.Secretary and after deliberating the materials, the Competent Authority were satisfied with respect to existence of prima facie materials and accordingly, sanction cane to be accorded. He has also deposed that he was competent to convey the sanction accorded to CBI for prosecuting accused No.1. It is noticed that during the course of cross-examination apart from denial nothing much was elucidated. The witness has also specifically deposed that he had prepared notes in their case files at the time of passing necessary order. The Court at the time of considering the question of sanction is required to appreciate that whether the Authority which had accorded sanction was competent and whether the authority had applied their mind with respect to according sanction. In the instant case, there is no dispute that the Government of Karnataka was the competent authority for the purpose of appointment and removal of Port 121 Spl.C. No.54/2014 Conservator which was coming under the purview of Department of Port and Inland Water Transport. As such it is to be held that the authority had every right to accord sanction. It is also noticed from records that there was deliberation being made by the competent authority prior to according of sanction.
76. By considering the aforesaid parameters with the materials available on record, it could be held that the competent authority had exercised due deligiance with respect to according sanction and hence, sanction accorded by them are valid, just and proper under the eyes of law. Hence, point No.1 is answered in the Affirmative.
77. Point No.2 to 6:- In the instant case, the case of prosecution rests upon the Mahazars which were being drawn at the inception of the case. Initially, the case had commenced upon drawing of the Mahazar on 15.03.2010 by the Forest authorities. It has been submitted by the prosecution that on 122 Spl.C. No.54/2014 15.03.2010 Sri.G.N.Nayak, Section Forester had visited Belikere Court along with Sri.Chandrashekar Naik and Forest Guard. I have also bestowed my anxious reading to the submissions made by the learned Counsel for Accused wherein it has been stated that the Mahazar cannot be relied upon for the reason that it has been registered prior to obtaining permission from the jurisdictional Court since the offences alleged at that point of time indicated of committing non-cognizable offence. In order to better appreciate the same, it would be appropriate to look into the case which was registered by the forest authorities in FOC 17/2009-10 which was under
Section 2(7)(b)(iv), 62 and 80 of Karnataka Forest Act,1963 and Section 143 and 162 of Karnataka Forest Rules. It is relevant to note at this juncture that the aforesaid provisions are non-cognizable in nature and it is also relevant to note that subsequently, necessary permission was obtained 123 Spl.C. No.54/2014 from the jurisdictional court with respect to registering the FOC. At this juncture, it would be worthwhile to appreciate the fact about the genesis which had led to filing of the above case.
78. The above case had commenced on the directions of the Hon'ble Apex Court due to filing of a writ petition before it by an NGO by name Samaja Parivarthana Samudaya in W.P.(Civil) 562/2009, wherein the Hon'ble Apex Court had directed Central Empowered Committee (hereinafter referred as CEC) to look into the issues and to submit its recommendation. In furtherance of the report furnished by CEC, the Hon'ble Apex Court had directed C.B.I. to register the case and to investigate with respect to illegality of transportation, extraction and export of Iron Ore from Belekeri Port during the period 2009-10. It is also relevant to note that the Hon'ble Apex Court had clearly specified that none of the parties shall raise any objection with respect to 124 Spl.C. No.54/2014 the competency of the Court and its jurisdiction and also it has been specifically directed by the Hon'ble Apex Court that no Court shall entertain any petition with respect to the competency of the investigation agency. The aforesaid aspect assumes relevance in the above case for the reason that the C.B.I. was entrusted with investigation as per the kind directions of the Hon'ble Apex Court. On receiving the case files, the C.B.I. had commenced investigation by registering F.I.R. in RC 13(A)/2012 to RC16(A)/2012 and had commenced with investigation. Prior to commencement of investigation the records indicates that initially a complaint was filed and registered by the forest authorities under various provisions of Forest Act. It is also relevant to note that subsequently, the forest authorities had lodged a private complaint under Section 200 of Cr.PC with respect to committing offences under Section 379 of IPC by various Companies and Accused No.1, Mahesh 125 Spl.C. No.54/2014 Bileye. It is also relevant to note that subsequently the investigation was handed over to C.I.D. constituted by the State of Karnataka and later on it was entrusted to C.B.I. authorities.
79. When the aforesaid aspects are appreciated in the backdrop of the directions of the Hon'ble Apex Court, it is noticed that prior to commencement of investigation by the C.B.I. authorities, already some sort of investigation had taken place. As already narrated supra, it indicates that initially one Mahazar was drawn on 15.03.2010 wherein the forest authorities had noticed several heaps of Iron Ore which was noted down as per the Mahazar at Exhibit P.88. It is pertinent to note that in the said Mahazar, it has been stated that they had received complaints from general public with respect to transportation of Iron Ore from Bilekere Port and hence, they had entered the same and found that Iron Ore was stored illegally and accordingly, Mahazar came to be drawn.126 Spl.C. No.54/2014
Further, it has been narrated in the Mahazar that it had been brought to the notice of the Port authorities that they were required to verify Forest Passes, Way Permits, the Port authorities had specifically stated of not verifying the same. Further, it has been narrated that since the heaps of Iron Ore were very huge in quantity, they were unable to determine its quantum and accordingly the Mahazar was drawn. It is also relevant to note that on 15.03.2010 itself a Forest Case came to be registered in FOC No.17/2009-10 as per Exhibit P.80 in the above case, wherein it has been mentioned that there is violation of the provisions of Section 143, 162 of Karnataka Forest Rules, 1969 and also the provisions of Karnataka Forest Act. Immediately thereafter, a letter was addressed as per Exhibit P.81 to the learned JMFC Court at Ankola seeking for necessary permission to investigate the case as contemplated under Section 155 of Cr.PC. It is not a case wherein the forest 127 Spl.C. No.54/2014 authorities had already commenced investigation prior to obtaining of permission from the competent jurisdictional Court. It is also noticed as per Exhibit P.6 that the learned Civil Judge and JMFC Court at Ankola had granted necessary permission and the endorsement is clearly forthcoming in the aforesaid Exhibit. It is also noticed that on 20.03.2010 once again the forest authorities had visited Bilekere Court and in the presence of PW3 Mahesh Narayana Gaonkar, PW4 Ashok Ramachandra Naik, Mahazar came to be drawn as per Exhibit P.8. It is relevant to note that the forest authorities had noticed huge quantity of Iron Ore being stored at Belekeri Port and they had approximately determined about five lakhs metric tonnes of Iron Ore for which they had determined its value at Rs.3000 per ton at Rs.150 Crores. Further, the Mahazar indicates that the said Iron Ore was huge in quantity and as such they had determined to hand it over to the Port Authorities and 128 Spl.C. No.54/2014 to obtain necessary endorsement from them. The records also indicate that the forest authorities had again drawn a Mahazar on 26.03.2010 as per Exhibit P8 to determine the quantum of the Iron Ore heaps which were stored at Belekeri Port. It is relevant to note that again the Mahazar was drawn in the presence of Ramachandra Thimmanna Naik and PW5 Prakash Soma Naik. It would be appropriate to refer to the evidence of PW3 Mahesh N. Goankar in this regard. It is his specific evidence that on 20.03.2010 they had reached the Port and approximately measured Iron Ore to an extent of 5000 M.T. as per Exhibit P.4. Further, he has deposed in his cross- examination that the measurement was measured approximately and during the course of cross- examination by the learned Counsel for Accused Nos.5 and 6, it was suggested that apart from heaps measured by Mr. G.N.Naik, there were other Iron Ore heaps at Belekeri Port. The aforesaid suggestion 129 Spl.C. No.54/2014 would clearly indicate that several huge quantities of Iron Ore was stored at Belekeri Port on that day. The evidence is corroborated if the statement of PW4 Ashok Ramachandra Naik is appreciated. He has specifically deposed that the Mahazar was written by Mohan Naik and he has feigned his ignorance about the exact place where the Iron Ores were stored at the Port. Further, during the course of cross-examination he had stated that the Iron Ore was not weighed, but it was circled with white powder and heaps were measured with a bamboo stick. With respect to the evidence of PW5 Prakash Soma Naik, who was the agent of a newspaper and an independent witness, has specifically stated that he was present at the time of drawing the Mahazar on 26.03.2010 as per Exhibit P.9. By looking into the aforesaid aspects, it could be clearly made out that the forest authorities had not commenced any investigation prior to obtaining of necessary permission from the jurisdictional Court. It 130 Spl.C. No.54/2014 is relevant to note at the cost of repetition, that initially a Mahazar as per Exhibit P.88 was drawn which is a sort of a preliminary inquiry being conducted and the necessary investigation had commenced only after obtaining necessary permission from the jurisdictional Court on 18.03.2010 and also the record indicates that a Mahazar as per Exhibit P.8 was drawn on 20.03.2010. It is relevant to note that even in the second Mahazar, the exact quantum of the Iron Ore stored was not specified. However, it was only on 26.03.2010 necessary details of the extent of Iron Ore being stored is discussed by the then investigating officer. For the sake of brevity, if the Mahazar at Exhibit P.9 is appreciated, it indicates that on 26.03.2010 they had visited the Belekeri Court and had identified various heaps of Iron Ore and in fact, it indicates that there were totally seven heaps being identified by them which were to an extent of 1,43,000 metric tonnes of Iron Ore. It is also 131 Spl.C. No.54/2014 relevant to note that it has been specifically stated in the Mahazar that it was directed to the port authorities not to permit anybody to dump Iron Ore on the identified heaps mentioned with the Mahazar. The records also indicate that another Mahazar was drawn on 29.03.2010 by the forest authorities as per Exhibit P.10 wherein they had identified Heap No.23 and had determined the extent of Iron Ore stored as 3,57,000 metric tonnes and also it has been noticed in the records that they had made the description of earlier extent of Iron Ore being stored.
80. When the aforesaid Mahazars are carefully appreciated, it would indicate that the forest authorities had indeed commenced the investigation only after obtaining necessary permission from the jurisdictional Court. As such, the submissions at Bar by the learned defence Counsels that the investigation had commenced prior to obtaining permission from the Court since the offences alleged were all non- 132 Spl.C. No.54/2014 cognizable in nature does not holds water. Even otherwise, the investigation which was carried out by the earlier investigating agency prior to entrusting the same to C.B.I. by the Hon'ble Apex Court can only be appreciated for a limited purpose. It is not that the C.B.I. is entirely relying upon the materials collected by the then investigating agency. It is also pertinent to note that the earlier investigation which was conducted by the forest authorities, C.I.D. authorities can be looked into for limited purposes only as the incident had taken place in the year 2010 and whereas, the investigation was entrusted to C.B.I. in the year 2012 by the Apex Court. Even for the C.B.I. to conduct investigation on the basis of the materials prevailing in the year 2010 would be a herculean task since majority of the Iron Ore were alleged to have been exported by the time investigation was commenced by the C.B.I. authorities. 133 Spl.C. No.54/2014
81. In this regard, the question with respect to the veracity of the investigation being conducted was questioned in Crl. Pet. No.7645/2010, Crl. Pet. No.7646/2010 and Crl.Pet. No.7673/2010 before the Hon'ble High Court of Karnataka, Circuit Bench at Dharwad wherein the Hon'ble High Court by its kind order dated 02.11.2010 had rejected the said contention. It is also relevant to note that the present Accused person was also a party in the aforesaid Criminal Petitions. In order to better appreciate the aforesaid contention, the relevant portion of the impugned order is required to be considered, wherein the Question No.2 which was raised by the Defence Counsels was answered by the Hon'ble High Court. For the sake of convenience, the questions which are raised is extracted, which reads as follows:-
(II) Whether the Forest Officer named under Section 62- A could apply for permission to the Magistrate under Section 155 (2) Cr.PC to investigate non- cognizable offences under the 134 Spl.C. No.54/2014 provisions of the Act or whether he could only be a complainant to the Police Officer, or whether the Police Officer alone is competent to apply to the Magistrate for grant of permission?
(III) In the instant case, whether permission of Magistrate was obtained before carrying out investigation in FOC 17/09-10 and FCR 189/09?
(IV) Whether the seizure effected by the Police Officer is vitiated for not obtaining prior permission to investigate, as required under Section 155 (2) of Cr.PC?
82. In this regard, necessary discussions were made by the Hon'ble High Court which is as follows:-
17. Now, we shall come to the question as to whether investigation in the instant case as commenced by the Deputy Conservator of Forest without the permission of the magistrate, vitiates the proceedings. In this regard, it is material to note that FCR 17/09-10 came to be registered on 15-3-2010 on which day the forest officer visited the port and noticed stacking of iron ore.135 Spl.C. No.54/2014
Suspecting it to be an attempt to illegally export it without the requisite permits, he registered the case.
18. Sri Ravi B. Naik and Sri Thiruvengadam, with vehemence, asserted that after registering the FIR on 15-3-2010, the forest officer had seized the ore and registered a case under Sections 2(7)(b)(iv) 62, 80 of the Forest Act and for violation of Rules 143 and 162 of the Forest Rules. Since it was done without the permission of the magistrate as required under Section 155(2), CrPC, the entire proceedings are vitiated. If what is urged is factually so, then the ground is acceptable. However, on a perusal of the records made available, it is noticed that the complainant/forest officer had applied to the jurisdictional magistrate at Ankola, in FCR 17/09-10 for grant of permission to investigate the case for the offences indicated above, as required under Section 155(2), CrPC. The magistrate passed the order on 18-3-2010, granting permission to investigate the case. In pursuance to the said order, seizure has been effected on 20-3- 2010. The seizure report at Annexure-C appended to Crl.P. 7645/10 indicates that seizure was 136 Spl.C. No.54/2014 reported to the magistrate on 20-3- 2010. Seizure, undoubtedly, is after obtaining permission to investigate the case and hence, the requirement of Section 155(2), CrPC has been met by the forest officer.
19. On facts, it is seen investigation has commenced only after permission was granted by the magistrate and hence, registration of FCR 17/09-10 is not in contravention of the provisions of the CrPC and hence, not vitiated.
20. Regarding seizure, petitioners contend that it is illegal as the ore stacked was covered with forest permit in respect of a particular quantity;
Customs clearance was also obtained. These are questions of fact to be inquired into. Petitioners have referred to the orders passed in their favour in WP 10347/10 dated 31-3-2010 and subsequent orders in the connected writ petitions to show they were permitted to lift the seized iron ore subject to executing an indemnity bond. I have perused the interim orders passed by this court in the writ petitions referred to above. They are not unconditional. The order relied by the petitions dated 31-3-2010 in WP 10347/10 is of 137 Spl.C. No.54/2014 relevance and to understand its effect, it is extracted hereunder:
'Though this court on an earlier instance had issued an interim order staying the order which is similar to the one which is produced as Annexure-J to the one which is produced as Annexure-J to this petition, the period prescribed in the said notice has expired.......
In the present case, the impugned Annexure-M dated 29-3- 2010 the document itself indicates that the exporters are permitted to load iron ore other than what has been seized by the forest authorities. Hence, an interim order in the instant case is issued directing the respondents to permit the petitioner to export iron ore regarding which clearance has been obtained from the forest authorities and in respect of which customs duty has been collected by the authorities. It is made clear that in respect of iron ore which may be stocked in the yard and in respect of the same, if there is no endorsement of forest authorities as required under Rule 162 of the Karnataka Forest Rules such stock of iron ore shall not be permitted under this interim order. Hence, export may be permitted on verification of documents and 138 Spl.C. No.54/2014 subject to the petitioner filing indemnity bond. The export permitted shall remain subject to the result of the petition and further orders to be passed.' Based on the order extracted above, similar orders have been passed in subsequent writ petitions, but it is clear from the nature of the interim order granted that petitioners were permitted to load iron ore other than what was seized by the forest authorities.
The direction issued to the respondents was to permit the petitioners to export iron ore regarding which clearance has been obtained from forest authorities and in respect of which customs duty has been collected.
Besides, other conditions enumerated in the order clarify that the iron ore seized was not permitted to be lifted/exported and in fact permission granted in respect of unseized iron ore was also subject to fulfillment of all requirements under law and the endorsement of the forest authorities under Rule 162 of the Forest Rules.
35. Based on the discussions above, points framed at paragraph no. 9 are answered as under:139 Spl.C. No.54/2014
Point no. (1) : is answered in the affirmative. By virtue of Section 62-A of the Forest Act, the forest officer above the rank of a RANGE FOREST OFFICER named in Section 62-A of the Act is equated to a police officer for the purpose of investigation of offences punishable under the provisions of the Forest Act.
Point no. (2) : Consequently, it has to be held that the forest officer referred to under Section 62-A of the Forest Act is competent to apply to the magistrate under Section 155(2), CrPC, for grant of permission to investigate non- cognizable offences under the provisions of the Forest Act. He need not apply to the jurisdictional police officer through a complaint to seek such permission form the magistrate.
Point no. (3) : In the instant case, on facts it has to be held that the forest officer investigating the case in FCR 17/09-10 and FIR 189/10 had obtained prior permission for effecting seizure of the contraband and iron ore which is the subject matter of investigation.
Point no. (4) : Consequently, it is held that the seizure effected by the investigating officer for was after taking prior permission 140 Spl.C. No.54/2014 under Section 155(2), CrPC, and hence not vitiated.
36. Based on the discussion in the foregoing paragraphs, I am constrained to discount all contentions and grounds urged by the petitioners regarding competence of forest officers to investigate offences under the Forest Act, contention regarding untenability of investigation in FCR No. 17/09-10, Crime No. 189/10 and P.C. 54/10 as devoid of merits.
All grounds urged by the petitioners seeking quashing of proceedings against them mentioned above are rejected.
83. By looking into the aforesaid aspects, it is crystal clear that the investigation which was carried out by the forest authorities are in accordance with law and no aspersions can be castigated against the foresaid authorities.
84. In the instant case, the drawing of Mahazar itself is seriously disputed and also when the allegations leveled against the accused persons are carefully appreciated, it indicates that a serious allegation U/s.379 of IPC and also entering into 141 Spl.C. No.54/2014 conspiracy for exporting the illegally dumped Iron Ore materials from Belekeri Port has been leveled. The first and foremost aspect which is leveled against the accused persons are that the Accused No.1, Mahesh J. Biliye had entered into a criminal conspiracy with M/s. SMSPL who has been arrayed as Accused No.5 and also the stevedore in the above case for which Accused No.6, S.K.Sail was the Managing Director had provided with lease hold land at Belekeri Port which was leased to him as per the Government Notification at Exhibit P3 and Exhibit P5. In short, Accused No.4 Company was the service provider who had provided for space at Belekeri Port and whereas Accused No.2, M/s.Sri Lal Mahal Ltd., had availed stevedore facility and Accused No.3 was the Representative of the said Company. After availing of the stevedore facility accused No.2 M/s.Sri Lal Mahal Ltd., had stored iron ore at Belekeri port. It is submitted that the accused No.5 Company were 142 Spl.C. No.54/2014 having the Import-Export Code (IEC in short) and as such they were having power to export the materials from the port area. It is also been contended that the Accused No.2 Company had purchased about 24441 MTs of iron ore from various vendors and had dumped the same at Belekeri port which was subsequently subjected to seizure by the forest authorities. In short, the case of prosecution is that the said seized Iron ore were illegally exported by Accused No.2 and 5 Company which is represented by Accused No.3 and 6 being the Managing Director respectively. It is also been contended that the aforesaid activities were able to be completed only with the aid and support of Accused No.1 who was the Port Conservator at that point of time.
85. In order to appreciate the aforesaid aspects, the prosecution is firstly required to prove entering into criminal conspiracy as contemplated U/s. 120-B of IPC. The provisions of Sec.120-B of Indian Penal 143 Spl.C. No.54/2014 Code clearly stipulates that whenever an act is intended to be done in a manner which is illegal or which is legal in an illegal manner, the same attracts the rigors of Sec.120-B of IPC. It is the settled principles of law that the concept of criminal conspiracy cannot be proved in normal circumstances by way of direct evidence. However, the same may be proved by indicating the circumstances which would lead to draw inference that it was not a minor irregularity but indeed it was an act of criminal conspiracy. In the instant case as noticed above, many irregularities were being committed by accused No.1 who was the Port Conservator and also it has been contended that the said act was committed only to ensure that the Iron ore which were seized by forest authorities at Belekeri port and entrusted to his custody were illegally exported and it is alleged that the said irregularities cannot be considered as minor misnomer but it was committed in furtherance of criminal conspiracy entered between other accused persons. Under the circumstances, the moot aspect which is required to be determined is whether such irregularity amounts to 144 Spl.C. No.54/2014 entering into criminal conspiracy. In this regard, the authority which has been relied upon is required to be considered which is reported in (2002) 7 SCC 334 (Mohammed Khalid Vs. State of West Bengal) wherein the Hon'ble Apex Court has held as follows:
"17. It would be appropriate to deal with the question of conspiracy. Section 120B of IPC is the provision which provides for punishment for criminal conspiracy.
Definition of 'criminal conspiracy' given in Section 120A reads as follows:
"120A-When two or more persons agree to do, or cause to be done,- (1) all illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.' The elements of a criminal conspiracy have been 145 Spl.C. No.54/2014 stated to be: (a) an object to be accomplished, (b) a plan or scheme embodying means to accomplish that object, (c) an agreement or understanding between two or more of the accused persons whereby, they become definitely committed to co-operate for the accomplishment of the object by the means embodied in the agreement, or by any effectual means, (d) in the jurisdiction where the statute required an overt act. The essence of a criminal conspiracy is the unlawful combination and ordinarily the offence is complete when the combination is framed. From this, it necessarily follows that unless the statute so requires, no overt act need be done in furtherance of the conspiracy, and that the object of the combination need not be accomplished, in order to constitute an indictable offence. Law making conspiracy a crime, is designed to curb immoderate power to do mischief which is gained by a combination of the means. The encouragement and support which co-
conspirators give to one another rendering enterprises possible which, if left to individual effort, would have been impossible, furnish the ground for visiting 146 Spl.C. No.54/2014 conspirators and abettors with condign punishment. The conspiracy is held to be continued and renewed as to all its members wherever and whenever any member of the conspiracy acts in furtherance of the common design. (See:
American Jurisprudence Vol. II Sec. 23, p. 559). For an offence punishable under section 120-
B, prosecution need not necessarily prove that the perpetrators expressly agree to do or cause to be done illegal act; the agreement may be proved by necessary implication. Offence of criminal conspiracy has its foundation in an agreement to commit an offence. A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act by unlawful means. So long as such a design rests in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act In Itself, and an act of each of the parties, promise against promise, actus contra actum, capable of being enforced, if lawful, punishable if for a criminal object or for use of criminal means.
18. No doubt in the case of conspiracy there cannot be any direct evidence. The 147 Spl.C. No.54/2014 ingredients of offence are that there should be an agreement between persons who are alleged to conspire and the said agreement should be for doing an illegal act or for doing illegal means an act which itself may not be illegal, Therefore, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both, and it is a matter of common experience that direct evidence to prove conspiracy is rarely available. Therefore, the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused."
86. On appreciating the above said dictum, it is clear that the prosecution is required to prove the circumstances under which an offence is committed which would be construed as conspiracy i.e., there should be an object to be accomplished, plan or scheme embodying means to accomplish the object, an agreement or understanding between 2 or more accused persons and in the juxtaposition where the 148 Spl.C. No.54/2014 statue is required to commit an overt act. In other words, the essence of criminal conspiracy is the unlawful combination and ordinarily the offence is complete when the combination is framed. In the instant case it requires to be considered that whether the act of Port Conservator in not preventing the export being made by Accused No.5, M/s.SMSPL and Accused No.6 Mr. S.K. Sail would amount to conspiracy. Time and again it has been held by various dictum that the criminal conspiracy is an independent offence. Further the prosecution is required to prove the same by producing necessary materials to indicate criminal misconduct on the part of the accused. In other words, the acts, which have been committed by the accused persons, should be the one, wherein the accused has to take definite steps to an agreement which they had entered upon to do an illegal act or to do an act which is legal, but with illegal means. Hence, in simple manner the 149 Spl.C. No.54/2014 concept of conspiracy can be explained if it consists following ingredients.
a) that there should be an agreement between 2 or more persons
b) that the said agreement should be for doing of an illegal act or for doing by illegal means an act which by itself may not be illegal.
When the said ingredients are established, then only the prosecution may contend that the accused persons had entertained an intention to commit an offence. At this juncture it would be appropriate to appreciate and rely upon the passage of Russell on Crimes (12th Edition a Volume No.1) which reads as follows:
"The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement between the parties. Agreement is essential. Mere knowledge, or even discussion, of the plan is not, per se enough".150 Spl.C. No.54/2014
87. It is settled principles of law that criminal conspiracy will be hatched up in darkness and will be executed for which there will not be any direct evidence. It is also relevant to appreciate that when criminal conspiracy is alleged, the same is required to be considered on the basis of the materials available on record and at times, the circumstantial evidence is also required to be looked into.
88. In the instant case, the prosecution has contended that in furtherance of the criminal conspiracy the aforesaid act was committed. It has been vehemently argued by the learned defense Counsels that no such conspiracy has been established by the prosecution. In order to appreciate the same, at the cost of repetition the entire facts that had taken place is to be recapitulated which are as follows: -
(a) 15.03.2010 - the forest officials visit Belekeri port as per the directions of R.Gokul, the then Deputy Conservator of Forest, Karwar Division.151 Spl.C. No.54/2014
(b) On the same day, the forest authorities notices that huge heaps of Iron ore was stored at Belekeri Port for which the port authorities were unable to provide with necessary documents.
(c) On the same day, FOC 17/2009-10 came to be registered for committing the forest offence.
(d) On 18.03.2010 necessary permission was obtained from the learned JMFC Court as contemplated U/s. 155(2) of Cr.PC.
(e) On 20.03.2010 once again the forest authorities had visited Belekeri port and drawn necessary Mahazar.
(f) On 24.03.2010 a letter was addressed by Port Officer, Karwar to Deputy Conservator of Forest, Karwar wherein it was requested to furnish necessary details of the Iron ore seized by the forest department and also to provide certified copies of FIR, seizure report and panchanama.152 Spl.C. No.54/2014
(g) On 25.03.2010 and on 29.03.2010 the Superintendent of Customs had informed the Port Conservator that the suspension of all operations at Karwar and Belekeri Port were to be resumed subject to non-exporting of seized materials which were not seized by forest authorities.
(h) On 26.03.2010 another Mahazar was drawn which indicated that Heap No.1 to 7 consisted of approximately 1,43,000 MTs of Iron ore.
(i) On 29.03.2010 another Mahazar was drawn which indicated that the quantum of Iron ore which was stored from Heap No.8 to 24 were around 3,57,000 MTs of Iron ore.
(j) On 29.03.2010 the Port Officer had addressed letter to Stevedore not to load Iron ore cargo which were seized by the forest authorities until further orders.153 Spl.C. No.54/2014
89. When the aforesaid incidents are carefully appreciated, it indicates that immediately after drawing of the Mahazar on 15.03.2010, no effective investigation had commenced and indeed, the investigation had commenced only after obtaining necessary permission from the learned JMFC Court on 18.03.2010 and on the basis of the same, the forest authorities had visited Belekeri Port and had drawn the Mahazar on 20.03.2010 wherein they have contended that the extent of Iron ore which were seized were approximately 5,00,000 MTs. It is relevant to note that the evidence of PW13 Mr. Yogesh Anand Shetty throws light on the aforesaid aspect. He has specifically stated in his chief examination that the seizure letter for which A1, Mahesh Bileye had initialed was identified by him which is at Exhibit P.36. The aforesaid aspect assumes importance for the reason that it has been vehemently contended that at no point of time, Accused No.1 was entrusted 154 Spl.C. No.54/2014 with the custody of the seized materials. It would be worthwhile to appreciate the same at Exhibit P-36. It clearly indicates that the Section Forester, Ankola who had seized the Iron ore had handed over to the custody of the Port authorities until further orders on as is where is basis. It has been contended that no proper entrustment of the property was made to the Port authorities. However, the evidence of PW-13 Yogesh Shetty would clearly indicate that the corresponding letter was furnished to the Port Conservator i.e. Accused No.1, Mahesh Bileye. Though the learned Senior Counsels have argued that mere dispatching a letter to the office would not amount to entrusting of the property with dominion over the same, it is required to be looked into with respect to the letter correspondences which were made by the Port Conservator thereafter. It is relevant to note that the Port Conservator, Mahesh Bileye had corresponded with the forest authorities by stating 155 Spl.C. No.54/2014 that they were not responsible towards the same and the seizure of Iron ore was not within his knowledge. However, on the basis of the same, forest authorities had sent another letter which was received by PW-6 R.Anand. PW-6 R.Anand in his evidence has specifically deposed that on 24.03.2010 he had received a letter from forest department for which he had affixed his signature and the letter as per Exhibit P-9. When the letter at Exhibit P-9 is appreciated, it indicates that the forest authorities had furnished a seizure report stating that the particulars of the property which were seized were approx. 5,00,000 MTs and the value of the same would be around Rs.150 crores. The copy itself indicates that the learned Magistrate had permitted the RFO, Ankola to retain the seized properties until further orders. As such it would indicate that the connection between the seizure of property and its entrustment is established by the prosecution. During the course of 156 Spl.C. No.54/2014 cross-examination of PW.6 it was suggested to him by the learned Counsel for Accused No.1 that he does not know the contents of the letter. In other words, the aforesaid suggestion would indicate that he had categorically admitted the receipt of the letter. I have also carefully appreciated the correspondences which were being made by the Port Conservator. For instance, the correspondence which is made by him at Exhibit P.38 wherein the Accused No.1 had directed the Stevedore to comply the order of the Court is required to be looked into. It is relevant to note that if the Accused No.1 was not entrusted with the property which are in the form of seized Iron ore, it is for him to explain why he had corresponded with the Stevedores to adhere to the directions. The subsequent correspondences also indicates that the Port Officer had requested the forest authorities to furnish details of the Iron Ore seized vide letter dated 25.03.2010 as per Exhibit P.55. The forest authorities 157 Spl.C. No.54/2014 had furnished the FIR, Mahazar and other documents. That apart, another letter dated 15.04.2010 which was addressed by Accused No.1 to the Stevedores directing them to provide information regarding Iron ore available in the seized materials which were marked by the forest department along with their name and other details as per Exhibit P-28 also clearly indicates that Accused No.1, Mahesh Bileye was in control over the affairs of the Port. I have also bestowed my anxious reading to the document at Exhibit P-30(C) which is a letter dated 03.03.2010 addressed by Secretary to the then Director of Port and Inland Water Transport which was addressed to the Port Officer at Karwar, wherein it was specifically stated that the Lorries which were carrying the Iron ore were required to provide necessary documents pertaining to its transport which were abstract of bulk permit for mining lease, Mineral Dispatch Permit and payment of royalty. It 158 Spl.C. No.54/2014 was further specified that in the event of non- production of the document, it was to be considered as illegally transported materials and was to be reported to the officials of Department of Mines and Geology. Further, another letter dated 30.03.2010 as per Exhibit P-30(D) addressed by the Office of the Director, Port and Inland Water Services, Karwar specifies that the vehicles with valid permit from the Department of DMG and Forest authorities were only to be permitted to enter the port area. Further, as per the letter dated 30.03.2010 addressed by the Director of Port and Inland Water Service as per Ex. P-30 it has been specifically stated that the lorries carrying the Iron ore were to be permitted only after verifying the Forest Pass and Permit. In the said exhibit, the other correspondences have also been marked which would clearly indicate that the Port Conservator was entrusted with the duty to verify the materials entering the Port. One such letter is dated 12.03.2010 159 Spl.C. No.54/2014 wherein it has been specifically stated that as per Chapter III of Indian Port Act, 1908 the Port Conservator was required to ascertain all the materials entering the Port and to ensure the materials entering the Port were in accordance with law. The aforesaid aspect would clearly indicate the duty entrusted by the Director. That apart, in the last paragraph, it has been specified that the Port Conservator was required to adhere to the Rules and Regulations which were being regulated by the Government and as per D.O. letter in LOE 45 PSE 2010 dated 03.03.2010 it was mandatory to inspect all the Iron ore lorries entering the Port. The aforesaid letter was issued on 12.03.2010 i.e., prior to the seizure made by forest authorities. The aforesaid communications would clearly indicate that a duty was entrusted upon the Port officials to verify necessary permit at the time of entering the Port. Though it has been argued vehemently that, no such 160 Spl.C. No.54/2014 duty was entrusted to the Port Officers, the document speaks otherwise. Even otherwise, the document at Exhibit P-30(B) which consists of the proceedings of the meeting held on 13.04.2010 under the Chairmanship of Principal Secretary to Government, Forest, Ecology and Environment Department regarding seizure of Iron ore at Belekeri and Karwar ports is to be looked into. In the aforesaid meeting, the Secretary of Public Works Department had stated that the role of the port authorities was limited since it was Stevedores who book the shipment of the merchandise and the port authorities generally do not monitor the same to find out the source of merchandise. Further, in the said meeting, the Director Ports and Inland Water Transport had stated that, once the private agents book the shipment of Iron ore, hundreds of Trucks loaded with Iron ore would be dumped at the space provided by Stevedores and it would be difficult for the port authorities to 161 Spl.C. No.54/2014 differentiate between legally and illegally mined Iron Ore. In the said meeting, several decisions were taken and one such decision was to set up a Check Post near the entrance of the Port itself. It is rather surprising to note that in the said meeting, none of the Port officials had raised any qualms that they were not required to check the veracity of the materials. If for the sake of arguments, it was to be held that the port authorities were not required to ascertain the genuineness of the materials brought into the port, then obviously the same would have been brought to the notice of the persons at the time of conducting the meeting. Even otherwise, the letters addressed by the Port Conservator on 06.05.2010 as per Exhibit P-33 to the Investigating Officer of the forest department along with letter head of Stevedores would indicate the availability of Iron ore at Belekeri Port. Lastly, the letter dated 27.03.2010 at Exhibit P- 59 the Port Officer, Karwar had informed the 162 Spl.C. No.54/2014 Stevedores that the forest department had marked the Iron Ore stacked lying inside the Belekeri Port premises as per the Mahazars dated 26.03.2010 and 29.03.2010 on as is where is basis. The communications clearly indicate that Accused No.1, Mahesh Bileye was always kept in loop. Even otherwise, the deliberations which had taken place in the meeting conducted by the Principal Secretary and subsequently, the correspondences which were made by the Director of Ports directing the concerned Port Officers to ascertain the genuineness or otherwise of the Iron ore entering Belekeri Port by verifying the Forest Pass and DMG permit which were in the form of bulk permits would clearly vindicate the case of prosecution. I have also considered the letter addressed by Commissioner of Customs on 11.06.2010 to Chief Commissioner of Customs, Bengaluru, wherein the Customs officer while furnishing clarification to the allegations leveled by 163 Spl.C. No.54/2014 the Forest Authorities with respect to letting off the seized materials, has clearly stated that the incident had taken place due to the negligence of Accused No.1 who was the Port Conservator at relevant point of time. It is also pertinent to note that he had clearly explained that the Port conservator was required to look into the same. Even otherwise, I have bestowed my anxious reading to the other documents which have been marked in Ex P.19 and EX P.30 which consists of various correspondences that had taken place within the Department of Port and Inland Water Transport and in that a quarterly meeting was held in the month of August 2010, wherein it was stated that the Port conservator was required to verify the extent of cargo and also the necessary documents prior to entering the port area. Once again the aforesaid resolutions passed by the higher Port authorities falsifies the case of Accused No.1. 164 Spl.C. No.54/2014
90. It is also been contended that the Iron Ores which were stored at Belekeri Port were subsequently stolen. As already discussed above, at each and every step the role of Accused No.1 and also Accused No.5 Company by name M/s.SMSPL and also the role of accused No.6 being the Director of the Company would clearly indicate about the specific overt act specified against him. All the aforesaid incident is required to be considered conjointly to ascertain whether the same was committed in furtherance of a conspiracy hatched by them or in normal course which does not have any impact on the evidence of each of the witnesses.
91. At this juncture, once again the manner in which the investigation came to be entrusted is to be looked into. Investigation was entrusted to CBI authorities by the kind orders of the Hon'ble Apex Court in Samaja Parivarthana Samudaya case. Until such period of time, the investigation was either 165 Spl.C. No.54/2014 carried out by the local forest or by police authorities wherein subsequently, it was entrusted to CID officials. Only due to the kind intervention of the Hon'ble Apex Court, which on the basis of Central High-Powered Committee, the investigation came to be entrusted to CBI. When the above said incidents are conjointly read, it would indicate that all the Accused persons had joined together to export Iron ore illegally without obtaining valid documents.
92. The other aspect which is required to be considered is whether the Mahazar which was drawn on 20.03.2010 as per Exhibit P-8, and Mahazar dated 26.03.2010 and 29.03.2010 as per Exhibit P8 & P9 indicating the total extent being recovered was to an extent of 5,00,000 MTs can be accepted. The learned Counsel for Accused has vehemently argued that all the Mahazar witnesses have consistently deposed that the Iron ore materials which were recovered were by using Bamboo stocks and rope which is unheard of. 166 Spl.C. No.54/2014 In order to substantiate the same, the learned Counsel for Accused has contended that, if for instance the evidence of PW-4 Ashok Ramachandra Nayak is to be looked into, he has deposed during the course of cross-examination that the Iron ore heaps were not weighed, but they were circled with white colour powder and circled with stick. Further, it is submitted that during the course of cross- examination of PW-5 Prakash Soma Nayak, the very same answer was elucidated. However, it is pertinent to note that he had volunteered, that though the Iron ore heaps were not weighed, the same was measured by using height and circumference method. Further, the evidence of PW-14 Nagesh Bommaiah Gunaga, who was the Revenue Inspector at that time has deposed that on 07.08.2010 another Mahazar was drawn by the CID authorities which was completed on 09.08.2010 as per Exhibit P-12 and even in that the measurements were made approximately and not 167 Spl.C. No.54/2014 weighing the same. If for a moment the submission of the learned Counsels for Accused is to be accepted, then it has to be held that the quantum was not properly determined by the authorities. However, it is relevant to note that at that point of time, the forest authorities were immediately required to determine the quantum of the Iron ore which were seized. In order to determine the same, it was measured in an approximate manner by using height X circumference and also by looking into the shape of the Iron ore heap. Normally, the measurement of bulk heaps of minerals are initially determined approximately in the aforesaid manner. Even in the instant case, the very same procedure was being adopted by them. Subsequently, an attempt was made to determine the exact extent by collecting necessary materials from Stevedores who used to weigh the minerals entering the port prior to dumping the same in their lease hold area. Another aspect which assumes importance is 168 Spl.C. No.54/2014 the record submitted by the Stevedores in this regard. It is relevant to note that the Stevedores as per their Lease Agreement, necessarily charges the person availing the facility on the basis of the materials dumped in the lease hold area. In order to raise the Invoice, admittedly the Stevedores would measure exactly the extent of Iron ore being dumped in their area. Even otherwise, the evidence of PW-34 Abhay Kocharekar throws light in this regard. During the course of his cross examination, he has admitted that there were weigh bridges in their lease hold area. I have also carefully appreciated the evidence of PW.18 Vishal Gopal Harikant who has also the employee of M/s. SMSPL and has deposed that the Iron ore quantity would be measured at three Weigh Bridges installed in the port area. The aforesaid evidence would indicate that the extent shown in the Mahazar is to be compared and tallied with the extent which is shown in the details furnished by the Stevedores. 169 Spl.C. No.54/2014
93. Though it has been argued that the quantity of Iron ore was not at all mentioned at the inception of the case i.e. at the time of drawing the Mahazar as per Ex. P.88, it is relevant to note that it was only a preliminary inquiry being made by the forest authorities to ascertain whether there were any materials which would attract the rigors of the Forest Act. At the cost of repetition, another Mahazar came to be drawn on 20.03.2010 wherein the quantity of the Iron ore was determined tentatively. In other words, in the said Mahazar as per Ex. P-8 it was stated that the quantity was around 5,00,000 MTs. Further, as per the Mahazar as per Ex. P-9 which was drawn on 26.03.2010 and as per Ex. P-10 which was drawn on 29.03.2010, the quantum was determined at 5,00,000 MTs. Though a serious dispute is raised with respect to the determination of quantity as per the Mahazar at the inception, it is relevant to note that subsequently, the Port authorities had 170 Spl.C. No.54/2014 corresponded with the Stevedores as per the letter dated 15.04.2010 at Ex. P-28 to furnish necessary details of the Iron ore which were stored at Belekeri Port. Thereafter, the Port Conservator had addressed a letter to ACF, Ankola stating that he had directed the Stevedores to furnish information and the same would be communicated to him immediately after obtaining necessary information. It is relevant to note that the document at Ex. P-29(A) furnished by the Stevedore i.e M/s. SMSPL would clearly indicate the total quantity which were seized by the authorities. It is relevant to note that as per Ex. P-9 & P-10 the forest authorities had seized the Iron ore with respect to Stack No.23. In the aforesaid document, it has been stated that the quantity estimated by forest department as on 20.03.2010 was around 20000 MT with respect to stack No.23 and with respect to stack No.23 it was 24441 MT. However, it is clarified that actually the quantum which was seized was 24441 171 Spl.C. No.54/2014 MT with respect to stack No.23. It is relevant to note that the Mahazar which was drawn subsequently would clarify the necessary extent. With respect to the veracity of the said Exhibits, it would once again be worthwhile to refer to the evidence of PW-21 H R Venkatesh of M/s Adani Enterprises, who in his chief examination has deposed that their Company being stevedore was requested to furnish details with respect to the Iron ore which was seized from their area and accordingly he had obtained the details from the computer system and the same was submitted which was as per Ex 29 and further the evidence of PW-17 Krishna Narayana Kelaskar who has deposed that he had worked as Manager of M/s. SMSPL and he was required to receive the vehicles with Cargo and supply the stocks to the Barges. He has specifically deposed that the records pertaining to their business were transferred to the computer by Mr. Vishal and on 24.03.2010 they had received a communication 172 Spl.C. No.54/2014 from the Port Conservator to provide details of the seizure of Iron ore heaps. He has also identified by the letter at Ex. P-38 which was addressed to them by the Port authorities. He has deposed of furnishing necessary information with respect to seizure of Iron ore and as such they had furnished as per Ex.P-29(A) and also it is his evidence that subsequently, CBI authorities on 30.10.2013 had again requested to provide statement of inward and outward cargo details of various companies as they were Stevedores and he had collectively produced the information. It is also relevant to appreciate the evidence of PW-21 Venkatesh H.R. who has deposed that they had collected necessary details from their computer system and had furnished necessary information as per Ex. P- 29 stating that the total extent of Iron ore which was seized. He has also deposed that they had furnished party wise Iron ore stocks marked by forest department and also on the basis of the report 173 Spl.C. No.54/2014 furnished to them by various persons who had availed facilities. It would clearly indicate and corroborate with the evidence of PW21 wherein he has stated that M/s. Sri Lal Mahal Industries did not have any stock as on 31.05.2010.
94. The aforesaid aspect is required to be considered with the evidence of PW20 wherein he was deposed of furnishing the Inward and outward cargo details from 21.03.2010 to 31.05.2010. It is relevant to note that Pw.17 Vishal Gopal Harikanth had worked as Customs House Agent at M/s SMSPL and he has specifically described about the nature of his work and the records maintained by them. Further during the course of his chief examination he has deposed about the role played by A.6- Mr Sathish Krishna Sail who was the Managing Director of A-5 M/s SMSPL company. He has deposed that as per the document at EX P 66 about 10956 MT of Iron ore were brought insider the Port during the afore said 174 Spl.C. No.54/2014 period. It is relevant to note that as per the documents furnished at EX P65 the total stock which was brought inside the Port from 26.09.2009 to 20.03.2010 was 24442.50 MT of Iron ore. It is also relevant to note that in the aforesaid document it clearly depicts the total cargo which was available as on 20.03.2010. During the course of his cross examination it is relevant to note that the learned Counsel for Accused No.2 has not raised any qualms with respect to the quantum of the ore seized or any qualms with respect to the seizure being made. Though during the course of Cross examination by the learned Senior Counsel Sri Kiran Javali it was argued that the quantum of seizure is not specified, it would be profitable to look into the evidence which is led before this court. If at all the accused had any dispute with respect to the quantum or the seizure being made by the Forest authorities or with respect to the details of the quantum furnished by A5. M/s 175 Spl.C. No.54/2014 SMSPL, it should have been objected. However during the course of cross examination it was suggested to the witness that immediately after the seizure of iron ore they had not removed any marked quantum from the seized area. This would only indicate the categorical admission of Accused No.2 with respect to the seizure being made. Further with respect to furnishing of exact weight of the Iron ore it was infact suggested by Accused No.2 that there were three weighbridges in the Port area, which would also fortify the contention of stevedore of producing the quantum of seized Iron ore. In short, the document which has been furnished by the stevedore is not at all disputed by the Accused. Without objecting for the same and without laying any foundation during the course of cross examination, disputing the document at the time of arguments does not make much impact on the evidentiary value of the document. At one breath he relies upon the same and in another breath, he 176 Spl.C. No.54/2014 cannot take up a stand that the stock list furnished by M/s.SMSPL cannot be relied upon. Even for the sake of argument, if the sale invoices are to be accepted, it is required to be answered that what happened to the extent of iron ore which was seized by the Forest Authorities.
95. The cross examination made by the learned Counsel for Accused No.2 to 6 on behalf of M/s.SMSPL also indicates of categorical admissions being made by them. In other words, the aforesaid Accused persons, if they had not sold the same should have seriously disputed the marking of the document or disputed about the quantum mentioned therein. The aforesaid documents with respect to availability of the cargo was furnished by M/s SMSPL as per Ex 65 through their employees which is not seriously disputed. Further the other stevedore M/s Adani Enterprises have also furnished the documents with respect to the extent of the Iron ore which was 177 Spl.C. No.54/2014 marked by the Forest Authority. Both documents are being furnished by PW-17 Krishna Narayan Kelaskar of M/s SMSPL and PW-21 Venkatesh H R on behalf of M/s Adani Enterprises Ltd.
96. The very important question which is required to be considered at this juncture is whether the aforesaid document furnished by M/s. SMSPL can be looked into. The learned Counsel for Accused have vehemently argued that the document itself is inadmissible and no reliance can be placed on it. However, it is pertinent to note that in the instant case, it is consistently deposed by PW17 - Krishna N.Kelaskar that, the aforesaid records were maintained in their office and it was submitted to the Port authorities. It is well settled principles of law that any records which are maintained during the course of ordinary business can always be considered as an admissible document. Further, during the course of evidence of PW-21 Venkatesh H.R. he had deposed 178 Spl.C. No.54/2014 that they had maintained records in their office and in fact, they had sought for information from the Stevedores. In this regard reliance is placed on the judgment of the Hon'ble Apex court in the judgment rendered in (1998) SCC 410 (C.B.I V/s V. C. Shukla and others) wherein in a similar case, which is famously known as Jain Hawala case a similar question was posed that whether the entries made in book of accounts or loose sheets can be considered as admissible evidence as contemplated under the provisions of section 34 of the Indian Evidence Act. For the sake of profit the relevant portion is extracted which reads as follows:
17. From a plain reading of the section it is manifest that to make an entry relevant thereun-
der it must be shown that it has been made in a book, that book is a book of account and that book of account has been regularly kept in the course of business.
From the above section it is also manifest that even if the above re- 179 Spl.C. No.54/2014 quirements are fulfilled and the entry becomes admissible as rele- vant evidence, still, the statement made therein shall not alone be sufficient evidence to charge any person with liability. It is thus seen that while the first part of the section speaks of the rele-
vancy of the entry as evidence, the second part speaks, in a nega- tive way, of its evidentiary value for charging a person with a lia- bility. It will, therefore, be neces- sary for us to first ascertain whether the entries in the docu- ments, with which we are con-
cerned, fulfil the requirements of the above section so as to be ad-
missible in evidence and if this question is answered in the affir- mative then only its probative value need be assessed.
18. "Book" ordinarily means a collection of sheets of paper or other material, blank, written, or printed, fastened or bound to-
gether so as to form a material whole. Loose sheets or scraps of paper cannot be termed as "book" for they can be easily detached and replaced. In dealing with the word "book" appearing in Section 34 in Mukundram v. Dayaram [AIR 1914 Nag 44 : 10 Nag LR 44] a decision on which both sides 180 Spl.C. No.54/2014 have placed reliance, the Court observed:
"In its ordinary sense it signi- fies a collection of sheets of paper bound together in a manner which cannot be disturbed or altered except by tearing apart. The binding is of a kind which is not intended to be moveable in the sense of being un- done and put together again. A col- lection of papers in a portfolio, or clip, or strung together on a piece of twine which is intended to be untied at will, would not, in ordinary Eng- lish, be called a book. ... I think the term 'book' in Section 34 aforesaid may properly be taken to signify, or- dinarily, a collection of sheets of pa- per bound together with the inten- tion that such binding shall be per- manent and the papers used collec- tively in one volume. It is easier how- ever to say what is not a book for the purposes of Section 34, and I have no hesitation in holding that un- bound sheets of paper, in whatever quantity, though filled up with one continuous account, are not a book of account within the purview of Sec- tion 34."
We must observe that the aforesaid approach is in accord with good reasoning and we are in full agreement with it. Applying the 181 Spl.C. No.54/2014 above tests it must be held that the two spiral notebooks (MR 68/91 and MR 71/91) and the two spiral pads (MR 69/91 and MR 70/91) are "books" within the meaning of Sec- tion 34, but not the loose sheets of papers contained in the two files (MRs 72/91 and 73/91).
19. The next question is whether the above books fulfil the other requirements of Section 34 so as to be admissible in evidence. Mr Altaf Ahmed, the learned Addi- tional Solicitor General appearing for the appellant, submitted that the interpretation of the High Court that the expressions "books of account" and "business" ap-
pearing in the above section refer and relate to only such business as may exist between two persons such as a seller and purchaser, creditor and debtor, is anomalous for such a truncated view would disable law from dealing with il- licit business and situations con- nected therewith, such as the case in hand, where a conspiracy was hatched to receive money through hawala channels and other sources and to distribute it as bribes to politicians to influ- ence favourable decisions from them. According to Mr Altaf Ahmed, the expression "business" 182 Spl.C. No.54/2014 under Section 34 should receive the widest possible meaning and should be understood and con-
strued to mean and include all such efforts of people, which, by varied methods of dealing with each other are designed to im-
prove their individual economic conditions and satisfy their de- sires. He submitted that any book in which monetary transactions are recorded and reckoned would answer the description of "book of account" within the meaning of the aforesaid section. Relying upon the dictionary meanings of the above two words, namely, "business" and "account" and the interpretations given to those words by various courts of law, he submitted that the book (MR 71/91) and the connected docu-
ments would clearly prove that they were books of account main- tained in respect of the illegal business that the Jains were car- rying. His last contention on this aspect of the matter was that the transactions contained in MR 71/91 and the connected docu-
ments were an inherently credible record of the business in question and the books were maintained with such regularity as was com- patible with the nature of the business the Jain brothers were 183 Spl.C. No.54/2014 carrying and consequently those books would be admissible in evi- dence under Section 34.
21. The word "account" has been defined in Words and Phrases, Permanent Edn., Vol. I-A at pp. 336 to 338 to mean (i) a claim or demand by one person against another creating a debtor-creditor relation; (ii) a for- mal statement in detail of trans- actions between two parties aris- ing out of contracts or some fidu- ciary relation. At p. 343 of the same book the word has also been defined to mean the preparation of record or statement of transac- tions or the like; a statement and explanation of one's administra- tion or conduct in money affairs; a statement or record of financial transactions, a reckoning or com- putation; a registry of pecuniary transactions or a reckoning of money transactions; a written or printed statement of business dealing or debits and credits; or a certain class of them. It is thus seen that while the former defini- tions give the word "account" a restrictive meaning the latter give it a comprehensive meaning. Simi- larly is the above word defined, both restrictively and expan-
184 Spl.C. No.54/2014sively, in Black's Law Dictio-
nary (Sixth Edn.) to mean:
"A detailed statement of the mutual demands in the nature of debit and credit between parties, arising out of contracts or some fiduciary relation. A statement in writing, of debits and credits, or of receipts and payments; a list of items of debits and credits, with their respective dates. A state- ment of pecuniary transactions; a record or course of business deal- ings between parties; a list of statement of monetary transac- tions, such as payments, losses, sales, debits, credits, accounts payable, accounts receivable, etc., in most cases showing a balance or result of comparison between items of an opposite nature."
28. That brings us to the question whether it was "regu-
larly kept" so as to satisfy the last requirement of Section 34 to be admissible in evidence as a rel- evant fact. Mr Altaf Ahmed sub-
mitted that the above question has got to be answered keeping in view the nature of business the Jain brothers were carrying on and that when MR 71/91 is scanned in that perspective it is obvious that it was regularly 185 Spl.C. No.54/2014 kept. In refuting the above con- tentions Mr Sibal relied upon § 1550 of American Jurisprudence, Proof of Facts (Vol. 34, Second Se- ries) wherein it has been observed that not merely regularity is re- quired; the entry must have been fairly contemporaneous with the transaction entered. He also re- ferred to § 1526 of the same book which reads as under:
"The entry should have been made at or near the time of the transaction recorded -- not merely because this is necessary in order to assure a fairly accu- rate recollection of the matter, but because any trustworthy habit of making regular business records will ordinarily involve the making of the record contempora- neously. The rule fixes no precise time; each case must depend on its own circumstances."
(emphasis supplied) Mr Sibal submitted that from a cursory glance of MR 71/91 it would be apparent that the en-
tries therein were not contempo- raneously made; and, on the con- trary, they were made monthly which necessarily meant that those entries were made long af- ter the dates the purported trans- 186 Spl.C. No.54/2014 actions of receipt and disburse- ment took place.
29. What is meant by the words "regularly kept" in Section 34 came up for consideration be- fore different High Courts: and we may profitably refer to some of those decisions cited at the Bar.
In Ramchand Pitamb-
hardas v. Emperor [19 IC 534 :
(1913) 14 Cri LJ 262] it has been observed that the books are "regu- larly kept in the course of busi- ness" if they are kept in pur-
suance of some continuous and uniform practice in the current routine of the business of the par- ticular person to whom they be-
long. In Kesheo Rao v. Ganesh [ AIR 1926 Nag 407 : 95 IC 128] the Court interpreted the above words as under:
"The regularity of which Sec- tion 34 speaks cannot possibly mean that there is no mistake in the ac- counts, as that would make the sec- tion a dead letter; no accounts could be admitted in evidence till they had been proved to be absolutely correct, which is in itself an impossible task and also cannot be begun till they have been admitted in evidence. Reg- ularly or systematically means that the accounts are kept according to a 187 Spl.C. No.54/2014 set of rules or a system, whether the accountant has followed the rules or system closely or not. Nor is there anything in the section that says the system must be an elaborate or reli- able one. Both those matters, the de- gree of excellence of the system and the closeness with which it has been followed, affect the weight of the evi- dence of an entry, not its admissibil- ity. The roughest memoranda of ac- counts kept generally according to the most elementary system, though often departing from it, are admissi- ble in evidence, but would of course have no weight."
39. A conspectus of the above decisions makes it evident that even correct and authentic entries in books of account can- not without independent evidence of their trustworthiness, fix a lia- bility upon a person. Keeping in view the above principles, even if we proceed on the assumption that the entries made in MR 71/91 are correct and the entries in the other books and loose sheets (which we have already found to be not admissible in evidence un- der Section 34) are admissible un- der Section 9 of the Act to support an inference about the former's correctness still those entries would not be sufficient to charge 188 Spl.C. No.54/2014 Shri Advani and Shri Shukla with the accusations levelled against them for there is not an iota of in- dependent evidence in support thereof. In that view of the matter we need not discuss, delve into or decide upon the contention raised by Mr Altaf Ahmed in this regard. Suffice it to say that the state- ments of the four witnesses, who have admitted receipts of the pay- ments as shown against them in MR 71/91, can at best be proof of reliability of the entries so far as they are concerned and not oth-
ers. In other words, the state-
ments of the above witnesses can- not be independent evidence un- der Section 34 as against the above two respondents. So far as Shri Advani is concerned Section 34 would not come in aid of the prosecution for another reason also. According to the prosecution case itself his name finds place only in one of the loose sheets (Sheet No. 8) and not in MR 71/91. Resultantly, in view of our earlier discussion, Section 34 cannot at all be pressed into service against him.
97. The aforesaid document would clearly indicate as per the evidence of PW-17 and PW 21 that 189 Spl.C. No.54/2014 it was maintained by their office in the ordinary course of business. I have also bestowed my anxious reading to the document at Ex.P-65 and Ex P 66 which is also a stock list which was submitted to the CBI authorities, wherein the witness has identified his signature and also the inward and outward details pertaining to all the companies for which they had provided Stevedore facility is furnished by the witness. There is absolutely no dispute with respect to the fact that he was working as Manager at M/s. Adani Enterprises. During the course of cross- examination by Accused No.1, it was elucidated from him that they had given the details of the stock which were noted in their records at that point of time and they had maintained the records in their computer and the extracts were furnished to the CBI authorities. During the course of cross-examination, Accused Nos.2 to 6, it was in fact suggested that they had furnished details to CID authorities pertaining to 190 Spl.C. No.54/2014 a specified period of time. It was also suggested to him that he was not aware of the stocks and other details personally, the witness has deposed that the Supervisor used to maintain the records and they had furnished the report on its basis. It is also been stated by the witness that they used to weigh the Iron ore at Weigh Bridge itself and they had four Weigh Bridges being installed at Belekeri Port. The aforesaid elucidation would clearly support the case of prosecution than that of the Accused. It is the definite case of the prosecution that the stocks which were available and seized as on 20.03.2010 were 24441 MT at stack No.23. Though the Mahazar gives the description of the material seized in a pictorial manner, the collection of data from the company of Accused No.5 himself would fortify the case of the prosecution. In this regard, I have also carefully appreciated the statement recorded U/s. 313 of Cr.PC with respect to Accused No.5 Company and Accused 191 Spl.C. No.54/2014 No.6, Mr. S.K. Sail who was the Managing Director of the Company. In this aspect, Question No.53 was specifically put to him that, Mr.Krishna Kelaskar was working as Manager of their Company for which he has answered in the affirmative and with respect to the details of the cargo furnished, the Accused No.5 has categorically admitted the same by feigning his ignorance in this regard. It is also the settled principles of law that the suggestions made by the Defence which would go against the Accused is to be taken into account. In this regard, I have relied upon the judgment of the Hon'ble Apex Court reported in 2023 SCC Online SC 355 (Balu Sudam Khalde and another Vs. State of Maharashtra) wherein it has been held as under: -
38. Thus, from the above it is evident that the suggestion made by the defence counsel to a witness in the cross-examina-
tion if found to be incriminat-
ing in nature in any manner 192 Spl.C. No.54/2014 would definitely bind the ac-
cused and the accused cannot get away on the plea that his counsel had no implied author-
ity to make suggestions in the nature of admissions against his client.
39. Any concession or admis-
sion of a fact by a defence counsel would definitely be binding on his client, except the concession on the point of law. As a legal proposition we cannot agree with the submis-
sion canvassed on behalf of the appellants that an answer by a witness to a suggestion made by the defence counsel in the cross-examination does not de- serve any value or utility if it incriminates the accused in any manner.
40. It is a cardinal principle of criminal jurisprudence that the initial burden to establish the case against the accused be-
yond reasonable doubt rests on the prosecution. It is also an el- ementary principle of law that the prosecution has to prove its case on its own legs and can-
not derive advantage or benefit from the weakness of the de-
fence. We are not suggesting 193 Spl.C. No.54/2014 for a moment that if prosecu-
tion is unable to prove its case on its own legs then the Court can still convict an accused on the strength of the evidence in the form of reply to the sugges-
tions made by the defence counsel to a witness. Take for instance, in the present case we have reached to the conclu-
sion that the evidence of the three eyewitnesses inspires confidence and there is nothing in their evidence on the basis of which it could be said that they are unreliable witnesses. Having reached to such a con-
clusion, in our opinion, to for- tify our view we can definitely look into the suggestions made by the defence counsel to the eyewitnesses, the reply to those establishing the presence of the accused persons as well as the eyewitnesses in the night hours. To put it in other words, suggestions by itself are not sufficient to hold the accused guilty if they are incriminating in any manner or are in the form of admission in the ab-
sence of any other reliable evi- dence on record. It is true that a suggestion has no eviden-
tiary value but this proposition of law would not hold good at 194 Spl.C. No.54/2014 all times and in a given case during the course of cross-ex-
amination the defence counsel may put such a suggestion the answer to which may directly go against the accused and this is exactly what has hap-
pened in the present case.
41. The principle of law that in a criminal case, a lawyer has no implied authority to make admissions against his client during the progress of the trial would hold good only in cases where dispensation of proof by the prosecution is not permissi- ble in law. For example, it is obligatory on the part of the prosecution to prove the post mortem report by examining the doctor. The accused cannot admit the contents of the post mortem report thereby absolv-
ing the prosecution from its duty to prove the contents of the same in accordance with law by examining the doctor.
This is so because if the evi-
dence per se is inadmissible in law then a defence counsel has no authority to make it admis-
sible with his consent.
42. Therefore, we are of the opinion that suggestions made 195 Spl.C. No.54/2014 to the witness by the defence counsel and the reply to such suggestions would definitely form part of the evidence and can be relied upon by the Court along with other evidence on record to determine the guilt of the accused.
43. The main object of cross-ex- amination is to find out the truth on record and to help the Court in knowing the truth of the case. It is a matter of com-
mon experience that many a times the defence lawyers themselves get the discrepan-
cies clarified arising during the cross-examination in one paragraph and getting them-
selves contradicted in the other paragraph. The line of cross-ex- amination is always on the ba-
sis of the defence which the counsel would keep in mind to defend the accused. At this stage, we may quote with profit the observations made by a Di-
vision Bench of the Madhya Pradesh High Court in the case of Govind s/o Soneram v. State of M.P. reported in 2005 Cri LJ 1244. The Bench observed in paragraph 27 as under:
196 Spl.C. No.54/2014
27. The main object of cross-ex-
amination is to find out the truth and detection of false-
hood in human testimony. It is designed either to destroy or weaken the force of evidence a witness has already given in person or elicit something in favour of the party which he has not stated or to discredit him by showing from his past history and present demeanour that he is unworthy of credit. It should be remembered that cross-examination is a duty, a lawyer owes to his clients and is not a matter of great per-
sonal glory and fame. It should always be remembered that jus-
tice must not be defeated by im-
proper cross-examination. A lawyer owes a duty to himself that it is the most difficult art. However, he may fail in the re-
sult but fairness is one of the great elements of advocacy.
Talents and genius are not aimed at self-glorification but it should be to establish truth, to detect falsehood, to uphold right and just and to expose wrongdoings of a dishonest witness. It is the most effica-
cious test to discover the truth.
Cross-examination exposes bias, detects falsehood and 197 Spl.C. No.54/2014 shows mental and moral condi-
tion of the witnesses and whether a witness is actuated by proper motive or whether he is actuated by enmity towards his adversaries. Cross-examina- tion is commonly esteemed the severest test of an advocate's skill and perhaps it demands beyond any other of his duties exercise of his ingenuity. There is a great difficulty in conduct-
ing cross-examination with creditable skill. It is undoubt- edly a great intellectual effort. Sometimes cross-examination assumes unnecessary length, the Court has power to control the cross-examination in such cases. (See Wrottescey on cross- examination of witnesses). The Court must also ensure that cross-examination is not made a means of harassment or causing humiliation to the vic- tim of crime [See State of Pun- jab v. Gurmit Singh, 1996 SCC (Cri) 316]."
44. During the course of cross-
examination with a view to dis-
credit the witness or to estab-
lish the defence on preponder-
ance of probabilities sugges-
tions are hurled on the witness but if such suggestions, the an- 198 Spl.C. No.54/2014
swer to those incriminate the accused in any manner then the same would definitely be binding and could be taken into consideration along with other evidence on record in support of the same.
98. The aforesaid judgment aptly applies to the case on hand. The court is not placing its reliance based on the sole testimony of PW-17 and PW-21. The Court has also taken into account of the evidence of PW-18 Vishal Gopal Harikanth who has deposed that he had joined as Office Assistant of Accused No.5 Company, M/s. SMSPL and had worked from 04.11.2005 to November, 2010 and it is his specific evidence that he was processing the appointment of Customs House Agent, preparing Invoices on the basis of sale contract and also looking after correspondences. He has deposed that, Abhay Kocharekar was the Shipping Executive of the Company and A6 Mr.S.K.Sail was the Chairman and Managing Director of the Company and the entire 199 Spl.C. No.54/2014 transactions were being made at his directions and he has also deposed that their Company was the service provider who had provided plot area at Belekeri port to various Companies indulging in export business of the Ore. He has in detail explained about the procedures being carried out by the Custom House Agent and also preparation of draft survey report. The relevant evidence which is required to be looked into is the letter dated 11.06.2010 which was shown to him at Ex.P-46 for which he has deposed that the same was issued on the basis of the letter issued by PW-20 Krishna Kelaskar as per Ex.P-29(A). He has also identified by the inward details of the stock furnished by PW-34 Abhay Kocharekar. During the course of cross-examination by Accused No.1 it has been elucidated that they had Computer Operators in their Company and on the date of preparing the accounts, it was prepared by Mr. Madhukar Kulkarni. It is also been suggested during the course of cross- 200 Spl.C. No.54/2014 examination by Accused No.5 and 6 that the Iron ore which were brought into the port area were properly recorded and noted in the concerned security register and also it was suggested that the Iron ore quantity would be measured at the weigh bridge which were three in numbers in the port area. He has also admitted the suggestion that the forest authorities or the Port Officers had not weighed the Iron Ore at weigh bridge in his presence and it was suggested that A6 - Mr.S.K.Sail was not giving any directions directly to him, but he used to give directions to Mr. Madhukar Kulkarni. In other words, the aforesaid suggestion itself would demolish the case of the Accused since it is elucidated that the Iron Ores were not weighed by the port authorities which is once again contrary to the directions issued by the Director of Port and Inland Water Services as per his letter dated 12.03.2010 which is already discussed above and the negligence or acquiescence on the part of 201 Spl.C. No.54/2014 Accused No.1 would only fortify the case of prosecution with respect to entering into conspiracy. It is not the case of the Accused that, PW17 - Krishna Kelaskar and PW18 - Vishal Gopal Harikanth were not the employees of Accused No.6 Company. However, it is specifically admitted by them to be their employees and also categorical admissions are being made by them with respect to the documents furnished about inward and outward cargo stock and also the extent of cargo seized by the forest authorities. In short, even if it is contended that the Mahazar was not depicting the correct picture about the quantity of the Iron ore seized, the same is clarified by obtaining necessary documents which were being maintained by them in the ordinary course of business by the CBI investigating officer.
99. The other question which requires to be answered at this juncture itself is whether the details furnished by the Accused themselves can be relied 202 Spl.C. No.54/2014 upon when the Mahazar drawn at the earliest point of time is not depicting the exact picture. At the cost of repetition, it is relevant to note that the case had commenced by drawing a Mahazar on 15.03.2010 and registering of FOC No.17/2009-10 and later on drawing Mahazar on 20.03.2010, 26.03.2010 and 29.03.2010 by forest authorities. However, in the interregnum the investigation was entrusted to the local police by filing of a complaint by the ACF, Ankola, subsequently on noticing theft of Iron ore. Thereafter, the investigation was handed over to CID authorities and later on to CBI by the kind intervention of the Hon'ble Apex Court. On entrusting of investigation to the CBI authorities in the year 2013, the investigation had commenced by registering the FIR in RC 17A/2013 i.e., almost three years after drawing the Mahazar by the forest authorities. Under the circumstances, the Mahazar though it was drawn at the earliest point of time requires to be appreciated 203 Spl.C. No.54/2014 with the materials collected by the CBI subsequently. Admittedly, much water had flown down when the investigation was entrusted to CBI. As such the Mahazar though was a document which was in existence at the earlier point of time is required to be considered with the subsequent documents collected by the CBI.
100. In the instant case the provision of section 379 of IPC has also been invoked by the prosecution. It is the contention of the prosecution that subsequently after drawing the mahazar by the forest authorities on 15/3/2010 and also on 20/03/2010 the quantum of iron ore stored at Belekeri port was determined by the forest authorities. It has been contented by the forest authorities that as on the date of drawing the mahazar as per Exhibit P 9 to Ex P10 the quantum of iron ore which was stored at Belekeri Port report was determined at about 5,00,000 metric ton. However, it has been contended by the forest 204 Spl.C. No.54/2014 authorities and also by the prosecution that subsequently the quantum of iron ore which was stored at Belekeri port was illegally exported by the accused process by entering into a criminal conspiracy with each other. In order to better appreciate the same, the facts that had taken place immediately after drawing the mahazar on 20/03/2010 and also on 29/3/2010 is required to be considered. Once again at the cost of repetition it is to be appreciated that immediately after completing the process of seizure on 23/3/2010 the forest authorities had handed over the custody of the seized Iron ore to the port authorities and the same has already been discussed in detail supra. Though it is seriously disputed by the learned counsel for the accused persons that there was no specific entrustment of property to the accused No.1 Mahesh J Beliye, the same is already distinguished in the earlier part of the judgment wherein the evidence of 205 Spl.C. No.54/2014 PW-6 Mr R Anand is appreciated. In his chief examination he has specifically stated that on 24/3/2010 they had received a letter from the forest department and though he did not know the contents of the same, he had a affixed his signature to the said letter which was as per Ex.P-11 and later on he had handed over to the concerned official. At this juncture it would also be appropriate to look into the evidence of PW -13 Yogesh Anand Shetty, who has deposed that he was working as Assistant Port conservator and in the year 2003 he was deputed to Belekeri Port as Assistant Port conservator. Further it is stated that on 20/03/2010 they had received a letter from Range Forest Officer, Ankola informing about the seizure of Iron ore cargo by them on as and where is basis and on the said letter he had also identified the signature of the Port office along with the rubber stamp and it is his contention that immediately after the receipt of the letter accused No. 1 had addressed a letter to the 206 Spl.C. No.54/2014 Forest Department Officials by stating that seizure of Iron ore was not within their knowledge and they were not responsible for the same and only stevedores were responsible. However, in my earlier part of judgment it has already been discussed in detail that after receipt of the letter several correspondences had taken place in the Department of Port Authorities and also it has been discussed in detail about the circular which was issued on 12/3/2010 i.e., which was prior to the seizure being made by the forest authorities. In the aforesaid letter it was specifically stated that the Port authorities were required to verify the permits, passes and other ancillary documents which are required to let in a cargo vehicle inside the port area. The other correspondence is which had taken place also clearly indicates that subsequently accused No.1 had assumed the role of custodian of the properties which were entrusted to him by the forest authorities which is also been discussed in detail supra. Immediately 207 Spl.C. No.54/2014 after the Mahazar and entrustment of the Iron ore to the port authorities, they were the custodian of the same. It is the contention of the prosecution that subsequently, after the incident the seized Iron ore was stolen by the Accused person. In order to better appreciate the same, the evidence of PW-7 Jagadish Tandel is required to be appreciated. Mr. Jagadish Tandel in his chief examination has deposed that he was deputed to look after the Iron ore heaps which were stored at Belekeri port during the period 27.03.2010 to 11.06.2010 along with one Ramachandra Nayak. It is his evidence that on 26.04.2010 they had noticed that the officials of A4. M/s. SMSPL had started to meddle with the Iron ore stored at Belekeri port. It is his contention that the same was reported to the Port Conservator as per his letter which is marked as Ex. P-13. He has also deposed that M/s. SMSPL employees were using dumpers and excavators and in fact, he had stated 208 Spl.C. No.54/2014 the vehicle number of the lorry as KA-30 8963 which was being used to transport the Iron ore to the barges. Further, he has stated about stating the vehicle number also in his representation addressed to the Port Conservator. In his further examination, he has stated that again on 28.08.2010 the employees of A5-M/s. SMSPL had started to meddle with the same and again he had intimated to the Port Conservator along with Ramachandra Nayak as per Ex. P-14. I have bestowed my anxious reading to both representations being given by the aforesaid witness. Further, in the said letter the witness has specifically described about the registration number of the dumper trucks and also, they have specifically stated about pay loader which was not having any registration number and they had also requested the Port Conservator to re-think about issuance of clearance certificate. In a way the aforesaid letter also vindicates the case of the prosecution that it was the 209 Spl.C. No.54/2014 duty of the Port Conservator to issue clearance. Repeatedly, it has been argued by the learned Counsel for accused No.1 that no duty is attributed to accused No.1 with respect to preserving and issuance of NOC to the materials which are being exported. It is repeatedly contended that the main duty of the Port Conservator is to collect necessary port clearance charges and he is not concerned about the permits or otherwise. It has been argued that since Belekeri Port is a Custom Notified Area, the provisions of Customs Act will have to be made applicable and as such the Port Conservator will not be liable for any of the alleged illegal acts. Though the said submission seems to be fashionable and attractive, when the same is appreciated with the correspondences dated 12.03.2010 which is discussed supra by the Director of Ports and Inland Water Services, Bengaluru, wherein it was directed to the Port Conservator to verify the permit and other requisite documents 210 Spl.C. No.54/2014 coupled with the evidence of PW7 - Jagadish Thandel, it would indicate that a definite duty was cast upon the Port Conservator. It is also relevant to note that as per the letter dated 28.04.2010 as per Ex.P-14, once again the act of Accused No.5 company in meddling with the seized Iron ore was reported to the higher authorities. During the course of cross-examination, it was suggested to him that several lorries used to dump the Iron ore material in the very same place where the seized Iron ore heaps were stored. In other words, the Accused is categorically admitting the seizure of Iron ore to certain extent. Further, it was suggested to him that he does not know the extent of the area which was allotted to M/s. SMSPL and he has also categorically admitted that about 81,000 Sq.Mtrs. of area was allotted to M/s. SMSPL. Further, during the course of cross examination it was elucidated from the witness that the Port Conservator used to give clearance certificate to the ships which 211 Spl.C. No.54/2014 used to come to Belekeri port. Further, he has deposed that the Port Conservator had orally directed to prevent the officials of M/s. SMSPL from loading the Iron ore at Belekeri port. Under the circumstances, the Accused No.1 cannot shrug off from his responsibility by stating that he was not responsible for taking care of the seized materials at Belekeri port. Though the witness, PW-6 - R.Anand was cross-examined with respect to the extent of area leased out to M/s. SMSPL, in my humble opinion, there cannot be much dispute with respect to the same since the lease agreement for use of port land for stacking and import/export of Iron ore and other bulk cargos at Belekeri port entered between the Port authorities who were the Lessors and M/s. SMSPL being represented by A6 - Mr. S.K.Sail is marked as Ex.P.3 which would clearly indicate that the agreement was entered for a period of 30 years commencing from 18.01.2006 and in that it is 212 Spl.C. No.54/2014 specifically stated at Sl.No.6 that the Lessee who is none other than M/s. SMSPL shall not sub-let the use of demised premises or any buildings/structures thereon to anybody and further, it has been stated that the Port authorities may revoke the lease at any time if the Lessee fails to deliver any wreck or cargo salvaged to Government and further, the Lessee was required to obtain permission, NOC, clearance certificate, etc. from the concerned competent authorities of the department of Environment, Karnataka Pollution Control Board and from any other Departments/ competent authorities prior to commencement of construction activities or carrying out any activities in the demised premises. The aforesaid clause would clearly indicate that it was the duty of the Stevedore to collect necessary documents. The clause is required to be looked into from another perspective also since a duty is cast upon the Lessee/SMSPL/Stevedore to obtain necessary 213 Spl.C. No.54/2014 clearance certificate and in the event of non-obtaining such certificate, the Lessor/Port Authorities were always empowered to look into the same. The aforesaid clauses once again vindicate the case of prosecution and defenestrate the contention of the Accused Counsels. That apart, the aforesaid lease document is also enclosed with the Schedule and also the Map which would indicate the extent of area. Though it may be argued that the aforesaid question of inquiring the extent of area leased out to M/s. SMSPL was put to PW-6- R.Anand to ascertain whether he knew whose area the act was being committed, the same requires to be answered by looking into the evidence of PW-2 - Deepak A. Waingankar. Further, in the evidence of PW-2, he has stated of addressing another letter on 29.10.2010 bringing it to the notice of the Port Conservator about the theft being committed by Accused No.5 Company. When the aforesaid document is carefully 214 Spl.C. No.54/2014 appreciated, it would clearly indicate that he had referred to his earlier correspondences and again he has specifically stated that on 29.04.2010 at about 11.30 a.m. he had verified the heap and the heap was renumbered as 5, 6 & 7 afresh and it was lesser than the earlier extent. During the course of cross examination apart from denial nothing was elucidated from him. At this juncture, the evidence of PW-2 - Deepak A. Waingankar is required to be looked into. He has stated that in the year 2010, Mr. Ganesh was the Director of Ports and Inland Water Transport and in the month of April, 2010 he was directed to assist the Port Conservator in controlling the movement of lorries and at that point of time, the Accused No.1 was the Port Conservator at Belekeri. He has also deposed that during his visit at Belekeri Port, he came to know about the seizure of Iron ore and he had also noticed that it was difficult to distinguish the seized and unseized Iron ore heaps. As such, he had 215 Spl.C. No.54/2014 addressed a letter to the Port Conservator about non- existence of marking. It is his definite evidence that heap near Weigh Bridge No.3 was being partly removed which belonged to M/s. SMSPL and further he has deposed of addressing a letter on 26.04.2010. He has also identified another letter dated 24.04.2010 as per Ex.P-6. The letter at Ex.P-17 would clearly indicate that he was reported about meddling with the seized Iron ore and in fact, he had stated that the same was brought to the notice of the Port Conservator and as per Ex.P-7 he had addressed a letter to the Port Conservator, Belekeri wherein he had directed them to take the assistance of police for protecting the same. Even the letter at Ex.P-6 addressed by him would indicate the very same fact. During the course of his cross-examination, it was suggested to him that he had created the aforesaid letter. All the aforesaid aspects only fortifies the case of prosecution that indeed the employees of Accused 216 Spl.C. No.54/2014 No.5, M/s. SMSPL being represented by A6 - Mr. S.K.Sail had meddled and stolen the Iron ore seized by the forest authorities.
101. The other interesting aspect which is required to be addressed at this juncture is whether the seizures being made by the forest authorities at the inception can be considered as valid. It is vehemently argued by the learned Counsel for the Accused that the forest authorities did not have any right or authority to enter the Belekeri port and they were not empowered to seize the same. It is the specific contention that the forest authorities were having the right only during the transit and they were empowered to seize the materials only if it indicates that the material which is being transported was a forest produce. In other words, if the minerals are extracted from revenue lands, the same would be out of the purview of the forest authorities as it cannot be construed as a forest produce. In order to appreciate 217 Spl.C. No.54/2014 the same, the evidence of PW-33 Mr. Takat Singh Ranawat is required to be appreciated. Mr.Takat Singh Ranawat who is an IFS Officer has deposed that in the year 2010 he was posted as Assistant Conservator of Forest and Officer on Special Duty at Karwar division. He has reposed of furnishing a document with permits pertaining to M/s. Sri Lal Mahal Industries as per Ex.P-109. He has deposed that he had suspected the permits which were furnished by the Accused no.2 Company since the validity of the permit was shown for the period 04.01.2010 to 02.02.2010 but whereas the Royalty was paid on 05.01.2010 which is after issuing of the permit which was not proper. During the course of cross examination by Accused Nos.4 and 5 nothing much was elucidated from him. In order to better appreciate the aforesaid aspects, it would be appropriate to look into the provisions of Section 2(7) of Forest Act, 1963 which reads as follows: - 218 Spl.C. No.54/2014
(7) "forest produce" includes,
(a) the following whether found in or brought from a forest or not, that is to say,-- timber, charcoal, caoutchouc, catechu, 1[sandalwood]1, lootikai (Capparis Mooni), wood oil, sandalwood oil, resin, 2[rubber latex, 3[x x x]3]5 natural varnish, bark, lac, mahua or ippe (Bassia latifolia) flowers and seeds, seed of Prosopis juliflora, kuth, and temburni or tupra (Diospyros Melanoxylon) leaves, rosha (Cymbopogon Martini) grass and oil and myrabolams (Terminalia Chebula, Terminalia Belerica and 4[Phyllanthus Emblica, ramapatre and shigakai)]4; and (b) the following when found in, or brought from, a forest, that is to say:-
(i) trees and leaves, flowers and fruits, and all other parts or produce not hereinbefore mentioned, of trees;
(ii) plants not being trees, (including grass, creepers, reeds and moss), and all parts or produce of such plants;
(iii) wild animals and pea fowls and skins, tusks, horns, bones, silk cocoons, honey, and wax and all other parts or produce of wild animals, pea fowls and insects; and 219 Spl.C. No.54/2014
(iv) peat, surface soil, rock, and minerals (including limestone), laterite, mineral oils, and all products of mines or quarries; and [(iva) "cocoa beans or pods, garcinia fruits, thornless bamboos, Halmaddi, Raldhupa and Kaidhupa";]
(v) such other products of forests as the State Government may, by notification, declare to be forest produce;
Further, as per Section 80 of the Act, certain presumptions are to be drawn under the Act. For the sake of benefit, the provision of Section 80 is extracted, which reads as follows: -
80. Presumption that forest produce belongs to Government. --
When in any proceedings taken under this Act or in consequence of anything done under this Act or under any other law for the time being in force, a question arises as to whether any forest produce is the property of 1964: KAR. ACT 5] Forest 397 the State Government, such produce shall be presumed to be the property of the State Government until the contrary is proved, and in case of any prosecution the burden of proving 220 Spl.C. No.54/2014 the contrary shall lie on the accused.
102. The aforesaid evidence tendered by the witness would clearly indicate the presumption which was available in favour of the Forest Authorites and since no materials were produced to indicate that it was extracted from revenue lands or otherwise under valid permit/ passes being issued, it is to be construed that the seizures which were made by the Forest authorities were proper.
103. When the aforesaid provision of law is appreciated, that whenever there arises a question that whether the produce is the property of the State Government, then it shall be presumed to be the property of the State Government unless the contrary is proved and in case of any prosecution, the burden of proving the contrary shall lie on the Accused person. In the instant case, it is contended that the materials which were seized by the forest authorities 221 Spl.C. No.54/2014 were to be construed as forest produce. However, the same is seriously disputed by the defence Counsel. However, in the absence of any material being produced by the Accused persons to indicate that the Iron Ores which were stored at Belekeri Port were transported under valid license and permits, the same is required to be construed as a foresaid produced only. That apart, as per Karnataka Forest Rule, 1969 and in particularly with Rule 162 it has been specified that no forest produce shall be booked for transport by Rail or Sea unless the same is covered by a valid pass or way permit. Further, the booking authority is required to affix their seal and note the number and date of the shipping bill on the pass or way permit. That apart, a duty is also cast upon them to report to the nearest police or foresaid authorities about forest produce not covered by a valid pass or Way Permit. At this juncture, it is relevant to note that during the course of cross examination of PW-19 R.Gokul it was 222 Spl.C. No.54/2014 categorically admitted by the Accused No.2 that they had filed writ petition before the Hon'ble High Court of Karnataka. Further, he has feigned his ignorance to the fact of export being made by Accused No.2 company. The aforesaid specific suggestions would vindicate the case of prosecution that Accused No.2, M/s Sri Lal Mahal Industries., had sold Iron ore without obtaining necessary permission. For the sake of arguments, if the forest authorities had not adhered to the kind directions of the Hon'ble High Court, nothing prevented them from taking necessary action in accordance with law. In the instant case, it was suggested by Accused No.1 that the Port Conservator was only a booking authority. If the aforesaid aspect is carefully appreciated with the evidence of PW-36 - Mr. Biswajit Das who was the investigating officer who had filed the charge sheet. It is pertinent to note that it was suggested that the port authorities were required to collect wharfage, 223 Spl.C. No.54/2014 anchorage charges and it was admitted by the witness that the Port Conservator was not having any authority to issue permission to export any material. However, he has denied the suggestion that the port authorities were not the booking authority. In this regard reliance is placed on the judgment rendered by the Hon'ble High Court of Karnataka, reported in 2010 SCC Online Kar 2298 (ILC Industries Limited -Vs- State of Karnataka) wherein it has been held as follows: -
30. Sri Thiruvengadam, learned counsel for the petitioners, has raised another legal issue with regard to repugnancy under the provisions of the Customs Act and the Karnataka Forest Act. In this regard, he would contend that iron ore is an item covered under the Union List and therefore, it is only by Parliamentary legislation its import or export or mining could be determined. He submits, as iron ore falls under Union List, it is only the Union of India which has to issue the notification regarding restraint on its export as envisaged under Section 11-I of the Customs 224 Spl.C. No.54/2014 Act. He submits, provisions of Section 62 of the Forest Act conferring power on forest officers to seize such iron ore considering it as 'forest produce' does not empower the forest officer to enter upon the area coming within the Customs Act. In other words, it is urged, as iron ore was on the precincts of the port liable for customs duty, in the absence of any notification by the Central Government under Section 11-I of the Customs Act banning its export, the forest officer cannot invoke Section 62 of the Forest Act to seize such iron ore. This is on the basis that when there is a Parliamentary legislation and State legislation, it is the Parliamentary legislation which prevails and not the State legislation. This issue has to be decided with reference to case laws.
31. As regards the legal position, it is well settled that in the case of GOVERNMENT OF ANDHRA PRADESH v. J.B. EDUCATION SOCIETY (AIR 2005 SCC 2014) the apex court held that the question of repugnancy between a parliamentary legislation and state legislation can arise in two 225 Spl.C. No.54/2014 ways. First, where legislations enacted with respect to matters in their allotted sphere overlap and conflict. Second, where the two legislations are with respect to matters in the concurrent list and there is a conflict. In both the situations, the parliamentary legislation will predominate, in the first, by virtue of non-obstnate clause in Article 246(1) of the Constitution. In the second, by reason of Section 245(1) of the Constitution. Clause (2) of Article 245 deals with a situation where the State legislation having been reserved and having obtained President's assent prevails in that state, this again is subject to the proviso that Parliament can a gain bring as legislation to override even such state legislations.
Keeping this principle in mind, we have to examine the case at hand.
32. In the instant case, FIR registered against the petitioners is for the offences punishable under Sections 2(7)(b)(iv), 62, 80 of the Forest Act and Rules 143, 162 of the Forest Rules. Section 2(7)(b)
(iv) is the defining section which defines 'forest produce'. Section 62 is a part of Chapter 9 and deals with penalties and procedures. It postulates when there is reason to 226 Spl.C. No.54/2014 believe that a forest offence has been committed in respect of any forest produce, such produce together with all tools, boats, vehicles or cattle or any other property used in committing such offence, may be seized by any forest officer or police officer. Sub- section (2) envisages any forest officer or police officer. If he has reason to believe that the vehicle has been used for transportation of forest produce in respect of which there is reason to believe that offence has been committed or is being committed, he may require the driver or other person in charge of the vehicle to stop the vehicle and cause it to remain stationary as long as it may reasonably be necessary to examine the contents of the vehicle and inspect all records relating to the goods carried which are in the possession of such driver or other person in charge of the vehicle. Therefore, this provision confers the power of seizure on the forest officer when he suspects commission of any forest offence relating to forest produce defined under Section 2(7) referred to above.
33. Sri Thiruvengadam would contend that this provision could 227 Spl.C. No.54/2014 not be invoked as the property involved is iron ore to be exported which is covered by the provision of Section 11-H and 11-I of the Customs Act and therefore, the provisions of Customs Act being a Parliamentary legislation would prevail, and not the Forest Act which is a State legislation. This proposition would have beer accepted had there been any conflict in the provisions of the two legislations. Section 11-H envisages "illegal export" means the export of any goods in contravention of the provisions of this Act or any other law for the time being in force. This means, if there is export of goods in contravention of the Forest Act, then it comes within other laws referred to in clause H. The case at hand relates to transportation of iron ore extracted from forest area and being exported without forest permits. Therefore, the provision of Section 11-H of the Customs Act is attracted.
34. Section 11-I has also been referred to by the learned counsel to contend that unless the Central Govt., by notification, specifies iron ore to be one of the goods which is likely to illegally exported, iron ore is excluded from the Act. But a 228 Spl.C. No.54/2014 reading of Section 11-I shows, 'if, having regard to the magnitude of illegal export of goods of any class or description, the Central Govt. is satisfied that it is expedient in public interest to take special measures for the purpose of checking illegal export or facilitating detection of goods which are likely to be illegally exported, it may, by notification in the official gazette, specify such goods or description.' This provision is the enabling provision which permits the Central Govt. to specify the goods for the purpose of taking the required measures for checking illegal export for facilitating detection of likely goods to be included. This provision, therefore, does not exclude applicability of Forest Act as iron ore which is a forest produce defined under Section 2(7)
(b)(iv) of the Act, with regard to which if any offence is committed, is liable to be seized under Section 62 of the Forest Act. Based on this discussion, it has to be held that there is no repugnancy in the provisions relating to seizure of iron ore in the Parliamentary legislation, i.e. Customs Act and the State legislation, i.e. Forest Act. The contention in this regard is, therefore, over-ruled.
229 Spl.C. No.54/2014
35. Based on the discussions above, points framed at paragraph no. 9 are answered as under:
Point no. (1) : is answered in the affirmative. By virtue of Section 62-A of the Forest Act, the forest officer above the rank of a RANGE FOREST OFFICER named in Section 62-A of the Act is equated to a police officer for the purpose of investigation of offences punishable under the provisions of the Forest Act.
Point no. (2) : Consequently, it has to be held that the forest officer referred to under Section 62-A of the Forest Act is competent to apply to the magistrate under Section 155(2), CrPC, for grant of permission to investigate non- cognizable offences under the provisions of the Forest Act. He need not apply to the jurisdictional police officer through a complaint to seek such permission form the magistrate.
Point no. (3) : In the instant case, on facts it has to be held that the forest officer investigating the case in FCR 17/09-10 and FIR 189/10 had obtained prior permission for effecting seizure of the contraband and iron ore which 230 Spl.C. No.54/2014 is the subject matter of investigation.
Point no. (4) : Consequently, it is held that the seizure effected by the investigating officer for was after taking prior permission under Section 155(2), CrPC, and hence not vitiated.
36. Based on the discussion in the foregoing paragraphs, I am constrained to discount all contentions and grounds urged by the petitioners regarding competence of forest officers to investigate offences under the Forest Act, contention regarding untenability of investigation in FCR No. 17/09-10, Crime No. 189/10 and P.C. 54/10 as devoid of merits.
All grounds urged by the petitioners seeking quashing of proceedings against them mentioned above are rejected.
37. In the result, Crl.P. 7645/10 seeking quashing of proceedings in FCR 17/09-10, Crl.P. 7647/10 seeking quashing of proceedings in FIR 189/90 and Crl. P. 7673/10 seeking quashing of the entire proceedings in P.C. 54/10 are dismissed. All the interim orders granted in these petitions are dissolved and there shall be no impediment to the investigating 231 Spl.C. No.54/2014 officer to proceed with the investigation.
104. Though the aforesaid judgment was discussed in my earlier part of judgment, it was with respect to the competency to register FOC case by looking into the provisions of Section 155(2) of Cr.PC. However, the aforesaid judgment is again relied upon since it has been held by the Hon'ble High Court that any seizures being made is to be construed as forest produces. Even otherwise, in the instant case no material has been produced by the Accused persons to indicate that the materials which were extracted were not the forest produces. Under the circumstances, the material which has been produced before the Court with respect to seizure is to be construed as a forest produce only.
105. Now, the other aspect which is required to be appreciated that what was the alleged amount of Iron ore which were stolen. As already discussed above and at the cost of repetition and the Mahazar 232 Spl.C. No.54/2014 and Ex.P.9 and Ex.P 10 which were drawn on 26.03.2010 and 29.03.2010 respectively, the extent of Iron ore which was seized in the instant case was approximately determined as 5,00,000 MT. It has been vehemently contended that the aforesaid Mahazar does not have any legal backing since it was drawn with assumptions and presumptions. As already discussed supra, the Court has placed reliance on the document which is furnished by PW- 17 Mr Krishna Narayan Kelaskar and also on the evidence of 18 Vishal Gopal Harikanth of M/s.SMSPL. The document at Ex. P-65 to Ex P.67 would clearly indicate the total stock which was available with respect to M/s. Sri Lal Mahal Ltd. In this background, what is required to be appreciated is the total stock which was brought in prior to seizure and as per the aforesaid letters, it would clearly indicate that the total extent of the Iron ore which were brought into Belekeri Port prior to 20.3.2010. It is noticed from the 233 Spl.C. No.54/2014 mahazar at EX P 9 and Ex P 10 that the seizures were made with respect to stack no.23. In order to clarify the same, it is required to consider the document at Ex P.65 furnished by M/s SMSPL, which would clearly indicate that the seized Iron ore was to an extent of 24441 MT of Iron ore only. Further he has clarified that the records were maintained in their office during the ordinary course of business and further it is elucidated during chief examination that Accused No.6 Mr Sathish K Sail used to give necessary information and further it is also pointed out that the said data was also furnished by PW17 Krishna Narayan Kelesakar. During the course of Cross examination by the learned Counsel for Accused No.2 no dispute is raised with respect to document at Ex P 65. All that it was suggested was that they had not removed any iron ore from the plot after seizure being affected by the Forest authorities. In other words, the said suggestion would fortify the 234 Spl.C. No.54/2014 case of the prosecution wherein it is contended that the seized Iron ore were indeed stored in the plot area of M/s SMSPL. It would be appropriate to rely upon the document in which the Accused No.2 Company had stated about the extent of seizures being made by the Forest authorities at an undisputed point of time. EX P 87 is the writ petition which was preferred by the Accused no.2 Company before the Hon'ble High Court of Karnataka in W P. No. 15744/2010 wherein it has been specifically stated in the writ petition that the Forest Authorities have seized an extent of 21000 MT of Iron ore belonging to the Accused no.2 company from heap no.23 at the plot area. Thus, the documents which have been produced by the employees of Accused no.5 M/S SMSPL is justified If for the sake of argument, the total extent of the cargo which were available as on 20.03.2010 is considered it was 24441 MT of Iron ore. Hence the court is required to consider the seized Iron ore materials 235 Spl.C. No.54/2014 available at M/s SMSPL which is clearly narrated in EX. P 65 furnished by M/s SMSPL which clearly indicates that the seized Iron Ore was to an extent of 24441 MT.
106. It is pertinent to note that as per Ex.P.65(A) to EX P 67 accused No.4 M/s. SMSPL have furnished the details of inward and outward cargo which was brought in to the port from 14.2.2010 to 20.3.2010. They have also provided the details of the cargo which was available as on 20.03.2010 and also the stock details which was available from 21.03.2010 to 31.05.2010. For the sake of benefit the chart which is furnished at Ex.P.65 is hereby extracted which is as follows:
Sl.No Party Stock as Stock From From Total balance Name on inward stock cargo cargo 20.03.10 after upto inwarded loaded 20.03.10 20.03.10 after to 21.03.10 31.05.10 1 Sale to 24442.55 10926.66 10533.44 10926.56 21460 13909 SMSPL 236 Spl.C. No.54/2014
107. The aforesaid aspect clearly indicates that the balance quantity which was available as on 20.3.2010 was 24441 MT and the aforesaid chart clearly indicates that Accused No.2 company had sold their stock in favour of A 5 Company M/s SMSPL to an extent of 24442 MT of Iron ore. For the sake of obtaining clarity in this regard the shipping bills at Ex P49 and Ex P. 50 is considered. The shipping bill at Ex.P 49 pertaining to bill No.144/10 dated 25.04.2010 which indicates of export being made by M/s SMSPL through the vessel MV Mandarine Harvest indicates that an extent of 54766 MT of Iron ore came to be exported. For the sake of arguments if it is to be presumed that the aforesaid export was made prior to meddling with the seized Iron ore the next shipping bill at Ex P 50 would clearly throw light on the aforesaid aspect. As per the said shipping bill at Bill No.169/10 an export of 51965 MT of Iron ore was made by M/s SMSPL through the vessel MV Riva 237 Spl.C. No.54/2014 Wind on 24.05.2010. The aforesaid fact would clearly indicate of export being made by M/s SMSPL and also of the fact of purchasing the same from M/s Sri Lal Mahal Industries. Aforesaid act only indicates that the inward cargo which were brought in to the Port was exported along with the seized iron ore.
108. If the aforesaid material is appreciated then the contention of accused No.2 company will be falsified. Further, it is indicating that they had stated of exporting 44500 MT of iron ore through shipping bill No.165/2010 and 170/2010 dt.14.5.2010 and 25.5.2010 respectively. That apart it is pertinent to note that the shipping bill was raised on 24.5.2010 it is relevant to note that there was no order passed by the Hon'ble High Court for release of the same.
Further, the evidence of PW.18 Vishnu Gopal Harikanth would justify the case of prosecution that the stock prior to its loading were weighed at Weigh Bridge No.3. It is also relevant to note that as per 238 Spl.C. No.54/2014 Ex.P.65 it is specifically stated that M/s.Sri Lal Mahal has not produced any forest passes or permits.
109. Once again at the cost of repetition, it is clear that the materials which were brought into the Belekeri port were all illegally extracted Iron ore and once again it is to be reminded that the presumption available U/s.80 of the Karnataka Forest Act and its corresponding Rules would justify the case of the prosecution. Another document which is furnished by M/s.SMSPL at Ex. P-65 to Ex P 67 also clarifies the total number of trucks which had brought in the Iron ore to Belekeri port from 10.03.2010 to 20.03.2010 i.e. till the date of seizure being made at Belekeri Port. All the aforesaid acts would clearly cast a serious aspersion against the manner in which the activities being carried out by M/s.SMSPL. Once again it is required to look into the lease agreement which is discussed supra, which would cast an onerous duty on the Stevedore to verify necessary materials. This 239 Spl.C. No.54/2014 clearly cast a serious doubt with respect to the manner in which the exports are being carried out by M/s.SMSPL. Another supporting factor which is required to be considered is the Shipping Bills which are marked as Ex.P-50 which would indicate about 51965 MT of Iron ore was exported through MV Riva Wind to China. At the cost of repetition once again if the total extent of Iron ore brought inside Belekeri Port from the month of February till the date of seizure on 20.03.2010 is calculated by considering the total extent which is exported and also the extent of Iron ore which were brought in during 21.03.2010 to 31.05.2010 it would unerringly point out that the seized iron ore were exported. The aforesaid aspect only indicates of export being made by M/s.SMSPL and M/s.Sri Lal Mahal Ltd., of the seized Iron.
110. At this juncture, it would be appropriate to appreciate the evidence of PW-25 Ashish Majumdar is required to be considered. He has deposed that he 240 Spl.C. No.54/2014 had worked as Senior General Manager of M/s Sri Lal Mahal Ltd., and has also deposed that Accused No. Prem Chand Garg was the Manging Director along with Mr Susheel Kumar Valeecha. It is his evidence that they had decided to venture into Iron ore business and they used to procure them mainly from local dealers on FOR basis and have further contended that they had procured nearly 35400 MT of Iron ore. He has further deposed that in the year 2010 they were worried about the quality of the Iron ore and at that time the Port was also being closed temporarily due to Mansoon and the Forest authorities had also seized their Iron ore. It is his evidence that at that time they had received a telephone call from M/s SMSPL offering to purchase the seized Iron ore at Belekeri Port and hence Mr Susheel Kumar Valeecha was sent to Karwar along with him to negotiate with Accused No.6 Sathish K Sail. It is also deposed by him that after negotiation, 241 Spl.C. No.54/2014 Accused No.6 had purchased the seized Iron ore and later on he had requested to file writ petition before the Hon'ble High Court of Karnataka on behalf of their company. The aforesaid evidence is fully corroborated with the evidence of PW 29 Susheel Kumar Valeecha who was arraigned as Accused No.4 initially and later on he was tendered pardon. It is the settled law that the court cannot easily accept the evidence of the approver and has to look for corroborating materials. In the case on hand the evidence which is tendered by him is fully corroborated. The learned Senior counsel appearing for Accused no.2 has vehemently argued that the evidence tendered by him cannot be accepted for the reason that the same is hit by inordinate delay as the charge sheet was filed in the year 2015 and whereas the pardon was tendered in the year 2021 which is almost after 8 years. In this regard I have relied upon the judgment of the Hon'ble Apex Court reported in 242 Spl.C. No.54/2014 (2011) 9 SCC 479 (Mrinal Das V State of Tripura) wherein it is held as:
32. Sections 306 and 307 of the Code read as under:
"306.Tender of pardon to ac- complice.--(1) With a view to ob- taining the evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence to which this section ap- plies, the Chief Judicial Magistrate or a Metropolitan Magistrate at any stage of the investigation or in- quiry into, or the trial of, the of- fence, and the Magistrate of the First Class inquiring into or trying the offence, at any stage of the in- quiry or trial, may tender a pardon to such person on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other per- son concerned, whether as princi- pal or abettor, in the commission thereof.
(2)*** (3) Every Magistrate who ten-
ders a pardon under sub-section (1) shall record--
(a) his reasons for so doing;
243 Spl.C. No.54/2014
(b) whether the tender was or was not accepted by the person to whom it was made, and shall, on application made by the accused, furnish him with a copy of such record free of cost.
(4) Every person accepting a tender of pardon made under sub- section (1)--
(a) shall be examined as a wit-
ness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any;
(b) shall, unless he is already on bail, be detained in custody un- til the termination of the trial.
(5) Where a person has ac-
cepted a tender of pardon made un- der sub-section (1) and has been ex- amined under sub-section (4), the Magistrate taking cognizance of the offence shall, without making any further inquiry in the case,--
(a) commit it for trial--
(i) to the Court of Session if the offence is triable exclusively by that court or if the Magistrate tak- ing cognizance is the Chief Judi- cial Magistrate;
(ii) to a Court of Special Judge appointed under the Criminal Law Amendment Act, 1952 (46 of 1952), 244 Spl.C. No.54/2014 if the offence is triable exclusively by that court;
(b) in any other case, make over the case to the Chief Judicial Magistrate who shall try the case himself.
307.Power to direct tender of pardon.--At any time after commit- ment of a case but before judgment is passed, the court to which the commitment is made may, with a view to obtaining at the trial the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, any such offence, tender a pardon on the same condition to such person."
33. The principle of tendering pardon to an accomplice is to un- ravel the truth in a grave offence so that guilt of the other accused persons concerned in commission of crime could be brought home.
The object of Section 306 of the Code of Criminal Procedure, 1973 (in short "the Code") is to allow pardon in cases where heinous of- fence is alleged to have been com- mitted by several persons so that with the aid of the evidence of the person granted pardon, the offence may be brought home to the rest.
This section empowers the Chief Judicial Magistrate or a Metropoli- 245 Spl.C. No.54/2014 tan Magistrate to tender a pardon to a person supposed to have been directly or indirectly concerned in or privy to an offence to which the section applies, at any stage of the investigation or inquiry or trial of the offence on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence. Under Section 306 of the Code, the Magistrate of the First Class is also empowered to tender pardon to an accomplice at any stage of inquiry or trial but not at the stage of investigation on condition of his making full and true disclosure of the entire cir- cumstances within his knowledge relative to the crime. Section 307 of the Code vests the court to which the commitment is made, with power to tender a pardon to an ac- complice.
34. An accomplice who has been granted pardon under Section 306 or Section 307 of the Code gets protection from prosecution. When he is called as a witness for the prosecution, he must comply with the condition of making a full and true disclosure of the whole of the circumstances within his knowl- edge concerning the offence and to every other person concerned, 246 Spl.C. No.54/2014 whether as principal or abettor, in the commission thereof and if he suppresses anything material and essential within his knowledge con- cerning the commission of crime or fails or refuses to comply with the condition on which the tender was made and the Public Prosecutor gives his certificate under Section 308 of the Code to that effect, the protection given to him can be lifted. Section 306(4) makes it clear that the person accepting a tender of pardon should be exam- ined as a witness first in the Court of the Magistrate and subsequently in the trial court. Once an accused is granted pardon under Section 306, he ceases to be an accused and becomes witness for the prose- cution.
35. Regarding the delay in tendering pardon, it is not in dis- pute that the trial commenced on 11-3-2003 with the examination of prosecution witnesses. The ap- prover, PW 6, submitted his appli- cation to become an approver on 16-6-2004 well before the judgment which was delivered on 19-4-2005. We have already quoted Section 307 of the Code which denotes that pardon can be tendered at any time after commitment of a case but before the judgment is pro-
247 Spl.C. No.54/2014
nounced. In view of the same, inas- much as the approver submitted his application well before the judgment was delivered i.e. on 19- 4-2005, the contention regarding delay on the part of PW 6 is liable to be rejected.
41. Regarding his change of mind, PW 6 explained that he be-
came perplexed by the death of Tapan Chakraborty. He further ex- plained that out of repentance, he once made an attempt to commit suicide by hanging himself at his residence in the middle of the month of March 2004. Thereafter, he decided to divulge the whole in- cident leading to the killing of Tapan Chakraborty before the court. He also asserted that he had decided to disclose the whole inci- dent voluntarily on the advise of the members of his family. He iden- tified all the accused persons in the court by name and face.
111. Even in the instant case, during the course of evidence of PW29 Susheel Kurmar Valeecha has specifically deposed that he had changed his mind due to his failing health and also for the reason that 248 Spl.C. No.54/2014 he was required to make frequent travel to Bangalore. It is not that the aforesaid person was admitted to bail on turning approver, but he was admitted to bail in the year 2017 itself and later on he had decided to become an approver. The main object behind tendering Pardon is to unravel truth and at the same time the court is not wholly relying upon his sole testimony but appreciating the same along with the evidence of PW.25 Ashish Majumdhar. Both have deposed in similar manner and have also deposed consistently with respect to filing of Writ Petition before the Hon'ble High Court.
112. At this juncture the aforesaid evidence is required to be appreciate with the fact of filing of writ petition before the Hon'ble High Court of Karnataka. As already discussed supra the copy of the writ petition which was filed by Accused No.2 company is already marked as Ex P.87 Further in the said writ proceedings the Hon'ble Chief Justice of the Hon'ble 249 Spl.C. No.54/2014 High Court of Karnataka by its kind order dt.3.11.2010 had dismissed the writ petition by holding that the petitioners were not interested to prosecute the same. At this juncture the aforesaid aspect is required to be appreciated with the evidence of PW 19 R Gokul who had filed the verifying affidavit and contested the writ petition on behalf of the forest authorities has given pictorial picture of the incidents that had taken place at that point of time. He has specifically deposed that at that time, the Accused No.2 company had also filed another Criminal Petition before the Hon'ble High court of Karnataka, Dharwad Bench to get the criminal case quashed which was declined by the Hon'ble High Court and further the only direction which was issued by the Hon'ble High court was to release the seized Iron ore on executing indemnity bond and furnishing of satisfying documents. Further he has deposed that the permits were available only to an extent of 18 Lakhs MT of 250 Spl.C. No.54/2014 Iron ore whereas the export was made to an extent of 40 lakhs MT. During his cross examination by the learned counsel for Accused no.2 it was suggested the Forest Authorities had deliberately not verified documents. During the course of cross examination, it was specifically questioned that M/s. Sri Lal Mahal Ltd had furnished the documents to the Forest authorities which was deliberately not considered by them. The said suggestion has been denied by the witness. For a moment if the date on which the writ Petition is filed is considered it was on 07.05.2010, and as per the evidence of PW.25 and PW 29 it was elucidated that the same came to be filed after they had sold the Iron ore to M/s SMSPL at the behest of Accused No.6 Mr Sathish K Sail. The aforesaid aspect would only indicate that the aforesaid Writ Petition was filed by both parties only to play fraud upon the process of law and also on Superior court, in order to get their illegal act legalized. Further during the 251 Spl.C. No.54/2014 course of chief evidence of PW 33 Mr Takath Singh Ranawat, he has deposed of suspecting the DMG permits and passes furnished by accused Company and he has also given reasons for doing so. During the course of Cross examination apart from denial nothing much is suggested to him which would again fortify the case of prosecution.
113.In fact, his evidence clearly corroborates with the statement which has been furnished by M/s.SMSPL. In his chief examination he has further deposed of purchasing Iron ore from various local dealers. During the course of cross-examination by Accused No.1 nothing much was elucidated from him. In fact, it was suggested to him of entering into agreement with M/s. SMSPL which was represented by Sri. Krishna Kelaskar. For the sake of arguments if the forest authorities had disobeyed the orders of the Hon'ble High Court, nothing prevented them from initiating contempt action against such an act. The 252 Spl.C. No.54/2014 act of M/s. SLVM., and M/s. SMSPL is to be construed as a wanton act.
ACT OF FILING FALSE PETITIONS/MAKING FALSE SUBMISSIONS BEFORE HON'BLE CONSTITUTIONAL COURTS.
114. It is relevant to note at this juncture that any person cannot take the process of law lightly and that too any process which is prevailing before the Hon'ble Constitutional Authorities in such a light manner. In this regard, in a very recent judgement rendered by the Hon'ble Apex Court, the unscrupulous act of the litigants in making false submissions before the superior courts has been severely condemned and condoned upon. In this regard, the Court has relied upon the judgement of the Hon'ble Apex Court reported in 2024 SCC Online SC 2599 (Bhagwan Singh Vs. State of U.P.) wherein it is held as:
29. To create or to assist creating false documents and to use them as genuine knowing 253 Spl.C. No.54/2014 them to be false in the Court proceedings, to falsely implicate somebody in the false proceedings filed in the name of the person who had no knowledge whatsoever about the same are the acts attributable to the offences punishable under the Bhartiya Nyaya Sanhita, 2023. They are also acts of frauds committed not only on the person sought to be falsely implicated and on the person in whose name such false proceedings are filed without his knowledge and consent, but is a fraud committed on the Courts. No Court can allow itself to be used as an instrument of fraud and no Court can allow its eyes to be closed to the fact that it is being used as an instrument of fraud. As held by this Court in V. Chandrasekaran v. Administrative Officer4 "The judicial process cannot become an instrument of oppression or abuse, or a means in the process of the court to subvert 254 Spl.C. No.54/2014 justice, for the reason that the court exercises its jurisdiction, only in furtherance of justice. The interests of justice and public interest coalesce, and therefore, they are very often one and the same. A petition or an affidavit containing a misleading and/or an inaccurate statement, only to achieve an ulterior purpose, amounts to an abuse of process of the court."
30. The matter assumes serious concern when the Advocates who are the officers of the Court are involved and when they actively participate in the ill-
motivated litigations of the unscrupulous litigants, and assist them in misusing and abusing the process of law to achieve their ulterior purposes.
31. People repose immense faith in Judiciary, and the Bar being an integral part of the Justice delivery system, has been assigned a very crucial role for preserving the independence of 255 Spl.C. No.54/2014 justice and the very democratic set up of the country. The legal profession is perceived to be essentially a service oriented, noble profession and the lawyers are perceived to be very responsible officers of the court and an important adjunct of the administration of justice. In the process of overall depletion and erosion of ethical values and degradation of the professional ethics, the instances of professional misconduct are also on rise. There is a great sanctity attached to the proceedings conducted in the court. Every Advocate putting his signatures on the Vakalatnamas and on the documents to be filed in the Courts, and every Advocate appearing for a party in the courts, particularly in the Supreme Court, the highest court of the country is presumed to have filed the proceedings and put his/her appearance with all sense of responsibility and seriousness.256 Spl.C. No.54/2014
No professional much less legal professional, is immuned from being prosecuted for his/her criminal misdeeds.
115. In the aforesaid judgment, the Hon'ble Apex Court has come down heavily upon the acts, wherein false documents are created and using them as genuine knowing fully well that they are false documents in the Court proceedings to falsify or to implicate somebody cannot be permitted. Further, the Hon'ble Apex Court has specifically held that no Court shall allow itself to be used as an instrument of fraud and no court can allow its eyes to be closed to the fact that it is being used as an instrument of fraud. The judicial process cannot be taken as a shield to abuse the process of the Court or to subvert the justice only to ensure the ill deed of the Accused will be fulfilled. Further, the interest of justice and public interest coalesce and has to be considered oftenly as one and the same. The main reason for 257 Spl.C. No.54/2014 highlighting the aforesaid aspect is only to indicate the manner in which the fraud was being played upon before the Hon'ble High Court of Karnataka. The Accused persons namely A5 - M/s.SMSPL and A6 - Mr. S.K.Sail had insisted and prevailed upon M/s. SLVM., who have been arrayed as Accused No.2 in the above case to file writ petition before the Hon'ble High Court of Karnataka of the release of seized Iron ore. Though as per the evidence, it is stated that they had exported iron ore after filing of writ petition before the Hon'ble High Court., then once again a duty is cast upon them to explain why the aforesaid writ petition was dismissed subsequently as withdrawn. Even if such a stand is taken, the same requires to be nipped at the bud since the act will be committing a fraud on the Society at large. The superior Courts are considered as the temple of justice, wherein crores of people pose their belief and faith cannot be easily left to be meddled by such unscrupulous acts. Under the 258 Spl.C. No.54/2014 circumstances, the contention of the learned Counsel for Accused No.5 is required to be rejected lock, stock and barrel.
116. That apart, Accused No.6 - Mr.S.K.Sail is also duty bound to explain that from where he had obtained Iron ore which was exported during the period 21.03.2010 to 31.05.2010 as per the documents furnished in the charge sheet. Admittedly, they have furnished necessary documents which would indicate of the total exports being made during the relevant point of time. At this juncture, it would not be out of place to note the factual position of law as indicated U/s.106 of Indian Evidence Act wherein a duty is cast upon the party to explain the facts and circumstances which are within his special knowledge. In this regard, the Court has relied upon the judgment of the Hon'ble Apex Court reported in 2023 SCC OnLine SC 1261(Balvir Singh Vs. State of Uttarkhand) wherein it has been held as follows: 259 Spl.C. No.54/2014
PRINCIPLES OF LAW GOVERNING THE APPLICABILITY OF SECTION 106 OF THE EVIDENCE ACT
33. Section 106 of the Evidence Act, states as under:
"106. Burden of proving fact especially within knowledge.-- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
Illustration
(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.
(b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him."
34. Section 106 of the Evidence Act referred to above provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. The word "especially" means facts that are pre-eminently or exceptionally within the knowledge of the accused. The ordinary rule that applies to the criminal trials that the onus lies on the prosecution to prove the guilt of the accused is not in any way modified by the rule of facts 260 Spl.C. No.54/2014 embodied in Section 106 of the Evidence Act. Section 106 of the Evidence Act is an exception to Section 101 of the Evidence Act. Section 101 with its illustration (a) lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible or at any rate disproportionately difficult for the prosecution to establish the facts which are, "especially within the knowledge of the accused and which, he can prove without difficulty or inconvenience".
35. In Shambhu Nath Mehra v. The State of Ajmer, AIR 1956 SC 404, this Court while considering the word "especially" employed in Section 106 of the Evidence Act speaking through Vivian Bose, J., observed as under:
"11. ... The word "especially"
stresses that. It means facts that are pre-eminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know 261 Spl.C. No.54/2014 better than he whether he did or did not.
It is evident that that cannot be the intention & the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the burden lies on an accused person to show that he did not commit the crime for which he is tried. These cases are Attygalle v. The King, AIR 1936 PC 169 (AIR V
23) (A) and Seneviratne v. R, [1936] 3 All ER 36 at p. 49 (B)."
36. The aforesaid decision of Shambhu Nath (supra) has been referred to and relied upon in Nagendra Sah v. State of Bihar, (2021) 10 SCC 725, wherein this Court observed as under:
"22. Thus, Section 106 of the Evidence Act will apply to those cases where the prosecution has succeeded in establishing the facts from which a reasonable inference can be drawn regarding the existence of certain other facts which are within the special knowledge of the accused. When the accused fails to offer proper explanation about the existence of said other facts, the court can always draw an appropriate inference.
23. When a case is resting on circumstantial evidence, if the 262 Spl.C. No.54/2014 accused fails to offer a reasonable explanation in discharge of burden placed on him by virtue of Section 106 of the Evidence Act, such a failure may provide an additional link to the chain of circumstances. In a case governed by circumstantial evidence, if the chain of circumstances which is required to be established by the prosecution is not established, the failure of the accused to discharge the burden under Section 106 of the Evidence Act is not relevant at all. When the chain is not complete, falsity of the defence is no ground to convict the accused."
(Emphasis supplied)
37. In Tulshiram Sahadu Suryawanshi v. State of Maharashtra, (2012) 10 SCC 373, this Court observed as under:
"23. It is settled law that presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above position is strengthened in view of Section 114 of the Evidence Act, 1872. It 263 Spl.C. No.54/2014 empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process, the courts shall have regard to the common course of natural events, human conduct, etc. in addition to the facts of the case. In these circumstances, the principles embodied in Section 106 of the Evidence Act can also be utilised. We make it clear that this section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but it would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference. It is useful to quote the following observation in State of W.B. v. Mir Mohammad Omar [(2000) 8 SCC 382 : 2000 SCC (Cri) 1516] :
(SCC p. 393, para 38)
"38. Vivian Bose, J., had observed that Section 106 of the Evidence Act is designed to meet certain exceptional cases in which it would be impossible for the 264 Spl.C. No.54/2014 prosecution to establish certain facts which are particularly within the knowledge of the accused. In Shambu Nath Mehra v. State of Ajmer [AIR 1956 SC 404 :
1956 Cri LJ 794] the learned Judge has stated the legal principle thus : (AIR p. 406, para
11) '11. This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult for the prosecution to establish facts which are "especially"
within the knowledge of the accused and which he could prove without difficulty or inconvenience.
The word "especially"
stresses that. It means facts that are pre-eminently or exceptionally within his knowledge.'"
(Emphasis supplied)
38. In Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681, this Court was considering a similar case of homicidal death in the confines of the house. The 265 Spl.C. No.54/2014 following observations are considered relevant in the facts of the present case:
"14. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecutions [[1944] A.C. 315 : [1944] 2 All ER 13 (HL)] -- quoted with approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh [(2003) 11 SCC 271 : 2004 SCC (Cri) 135].) The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable 266 Spl.C. No.54/2014 of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads:
"(b) A is charged with travelling on a railway without ticket. The burden of proving that he had a ticket is on him."
15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering 267 Spl.C. No.54/2014 no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation.
Xxxxxxxxx
22. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. ..."
(Emphasis supplied)
39. The question of burden of proof, where some facts are within the personal knowledge of the accused, was examined by this Court in the case of State of W.B. v. Mir Mohammad Omar, (2000) 8 SCC
382. In this case, the assailants forcibly dragged the deceased from 268 Spl.C. No.54/2014 the house where he was taking shelter on account of the fear of the accused, and took him away at about 2 : 30 in the night. The next day in the morning, his mangled body was found lying in the hospital. The trial court convicted the accused under Section 364, read with Section 34 of the IPC, and sentenced them to ten years rigorous imprisonment. The accused preferred an appeal against their conviction before the High Court and the State also filed an appeal challenging the acquittal of the accused for the charge of murder. The accused had not given any explanation as to what happened to the deceased after he was abducted by them. The Sessions Judge, after referring to the law on circumstantial evidence, had observed that there was a missing link in the chain of evidence after the deceased was last seen together with the accused persons, and the discovery of the dead body in the hospital, and concluded that the prosecution had failed to establish the charge of murder against the accused persons beyond any reasonable doubt. This Court took note of the provisions of Section 106 of the Evidence Act, and laid down the following principles in paras 31 to 34 of the report:
"31. The pristine rule that the burden of proof is on the 269 Spl.C. No.54/2014 prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would be the major beneficiaries and the society would be the casualty.
32. In this case, when the prosecution succeeded in establishing the afore-narrated circumstances, the court has to presume the existence of certain facts. Presumption is a course recognised by the law for the court to rely on in conditions such as this.
33. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved 270 Spl.C. No.54/2014 facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process the court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case.
34. When it is proved to the satisfaction of the Court that Mahesh was abducted by the accused and they took him out of that area, the accused alone knew what happened to him until he was with them. If he was found murdered within a short time after the abduction the permitted reasoning process would enable the Court to draw the presumption that the accused have murdered him. Such inference can be disrupted if the accused would tell the Court what else happened to Mahesh at least until he was in their custody."
(Emphasis supplied) 271 Spl.C. No.54/2014
117. The Hon'ble Apex Court while explaining the requirements under Sec.106 of Indian Evidence Act has held that under certain circumstances the Pristine Rule of proving beyond reasonable doubt on the prosecution can be deviated at certain time. And the said rule is required to be fossilized to ascertain whether such a burden can be imposed upon the accused. In the instant case, the aforesaid fact was within the knowledge of accused person and the said burden cannot be castigated upon the prosecution. In the above case, the accused has not explained such circumstances, which was within his knowledge and the same can be taken as circumstances which would fortify the case of prosecution.
118. The only inference which can be drawn from the aforesaid acts of Accused No.2, M/s.Sri Lal Mahal Ltd and Accused No.5 M/s.SMSPL is that they had meddled with the heaps of Iron ore which were seized by the forest authorities as per their Mahazar 272 Spl.C. No.54/2014 dated Ex.P-9 and Ex.P-10 on 26.03.2010 and 29.03.2010 and even the letter addressed by PW6 - Anand is fully justified and proved by the prosecution. The only unerring inference which can be drawn from the aforesaid aspect is that the Accused No.2 Company had sold. the seized extent of 24441 MT of Iron ore to M/s SMSPL who had purchased the same and tried in vain to get it legalized by filing writ Petition through Accused No.2 company itself and later on had got it exported. The document which had been furnished would clearly indicate that the Accused No.5 company had not purchased any materials to an extent of 24441 MT from any other companies. Hence, the prosecution has clearly established that Accused persons i.e. A2 - M/s. Sri Lal Mahal Limited., and A4 - M/s.SMSPL with the directions of its M.D., A6 - Mr. S.K.Sail and Accused No.3 Mr Prem Chand Garg had stolen the Iron ore which was handed over to the custody of A1 - Mahesh 273 Spl.C. No.54/2014 J. Bileye and accordingly, they have committed an offence punishable U/s. 379 IPC and also the materials clearly indicates that had committed an offence punishable U/s. 420 IPC.
119. The learned Counsel for Accused has vehemently argued that the provision of Section 420 IPC is not at all applicable to the facts and circumstances of the above case. It is their contention that in order to attract the rigors of Section 420 IPC, there should be an element of cheating, wherein a person dishonestly induces the person deceived to deliver the property to any person or to make other to destroy the whole or any part of the valuable security.
120.I have also bestowed my anxious reading to the authorities relied upon by the learned Senior counsel Sri Murthy D Nayak who in his all fairness as usual has submitted that the basic ingredients of section 420 of IPC itself is not established by the prosecution. In order to butters his submission, he 274 Spl.C. No.54/2014 has relied upon the judgment of the Hon'ble Apex court reported in (2022)7 SCC 124 (Vijay Kumar Ghai Vs. State of West Bengal) wherein it is held as:
32. A fraudulent or dishon-
est inducement is an essential ingredient of the offence. A per- son who dishonestly induces an-
other person to deliver any property is liable for the offence of cheating.
33. Section 420IPC defines "cheating and dishonestly in-
ducing delivery of property"
which reads as under:
"420. Cheating and dishon-
estly inducing delivery of prop-
erty.--Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is 275 Spl.C. No.54/2014 capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
34. Section 420IPC is a seri-
ous form of cheating that in-
cludes inducement (to lead or move someone to happen) in terms of delivery of property as well as valuable securities. This section is also applicable to matters where the destruction of the property is caused by the way of cheating or inducement.
Punishment for cheating is pro- vided under this section which may extend to 7 years and also makes the person liable to fine.
35. To establish the offence of cheating in inducing the de-
livery of property, the following ingredients need to be proved:
276 Spl.C. No.54/2014
(i) The representation made by the person was false.
(ii) The accused had prior knowledge that the representa-
tion he made was false.
(iii) The accused made false representation with dishonest intention in order to deceive the person to whom it was made.
(iv) The act where the ac-
cused induced the person to de-
liver the property or to perform or to abstain from any act which the person would have not done or had otherwise com-
mitted.
121. The learned Senior Counsel has also relied upon the judgment of the Hon'ble Apex court reported in (2023)3 SCC 423 (Deepak Gaba V State of U P) wherein it has been held as
18. In order to apply Sec-
tion 420IPC, namely, cheating and dishonestly inducing deliv- 277 Spl.C. No.54/2014 ery of property, the ingredients of Section 415IPC have to be satisfied. To constitute an of- fence of cheating under Section 415IPC, a person should be in-
duced, either fraudulently or dishonestly, to deliver any property to any person, or con-
sent that any person shall re-
tain any property. The second class of acts set forth in the section is the intentional in-
ducement of doing or omitting to do anything which the per-
son deceived would not do or omit to do, if she were not so deceived. Thus, the sine qua non of Section 415IPC is "fraudulence", "dishonesty", or "intentional inducement", and the absence of these elements would debase the offence of cheating. [Iridium India Tele-
com Ltd. v. Motorola Inc., (2011) 1 SCC 74 : (2010) 3 SCC (Cri) 1201] 278 Spl.C. No.54/2014 19. Explaining the con- tours, this Court in Mohd. Ibrahim v. State of Bi- har [Mohd. Ibrahim v. State of Bihar, (2009) 8 SCC 751 : (2009) 3 SCC (Cri) 929. This Court, in this case, has cau-
tioned that the ratio should not be misunderstood, to record the clarification, which in the present case, in our opinion, is not of any avail and help to Re-
spondent 2 complainant. We re-
spectfully concur with the clar- ification as well as the ratio ex- plaining Sections 415, 464, etc. IPC.] , observed that for the of- fence of cheating, there should not only be cheating, but as a consequence of such cheating, the accused should also have dishonestly adduced the person deceived to deliver any prop-
erty to a person; or to make, al-
ter, or destroy, wholly or in part, a valuable security, or 279 Spl.C. No.54/2014 any++++++++++++thing signed or sealed and which is capable of being converted into a valu-
able security.
122. The juxtaposition of the aforesaid dictum can be summarized in short as follows: -
a) Deception of any person
b) Fraudulently or dishonestly inducing any person to deliver any property
c) To consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit.
123.If the aforesaid ingredients are applied to the case on hand, firstly the prosecution is required to prove that there was an fraudulent intention at the inception of the case. Time and again it has been held by the Hon'ble Apex Court that, an intention to cheat and defraud should be in existence right from the beginning. In order to better appreciate the same, once again, at the cost of repetition, the evidence 280 Spl.C. No.54/2014 requires to be revisited. The provision of Sec.420 would clearly stipulate that mere misrepresentation of the fact would not be sufficient and it is a sine-qua- non that accused who entertained the mala-fide intention from the beginning itself. Further, the Hon'ble Apex Court in another occasion has held that, in order to prove the dishonest intention, it would be possible always to insist upon direct evidence. However, reasonable inferences can be drawn from the circumstances which are prevailing. In this regard, the judgment of the Hon'ble Apex Court, reported in (2005) 9 SCC 15 (Devender Kumar Singla Vs. Baldev Krishan Singla) wherein it is held by the Hon'ble Apex court as follows:
8. As was observed by this Court in Shivanarayan Kabra v. State of Madras [AIR 1967 SC 986 : 1967 Cri LJ 946] it is not necessary that a false pretence should be made in express words by the accused. It may be inferred from all the circum-281 Spl.C. No.54/2014
stances including the conduct of the accused in obtaining the property. In the true nature of things, it is not always possible to prove dishonest intention by any direct evidence. It can be proved by a number of circum-
stances from which a reason-
able inference can be drawn.
9. On the proved facts it is seen that a cheque was handed over to the complainant and in the receipt it was stated that the shares have been received.
The High Court has referred to this factual position and drawn a conclusion that the receipt (Ext. PW 3/B) which was admit-
tedly executed by accused De-
vender clearly states that the shares had been transferred.
The mere fact that the cheque was filled in by the complainant is not sufficient to take away the effect of the statement in the receipt. The plea that it was an advance receipt does not ap-
pear to have been even agitated before the courts below.
10. Significantly, there was no suggestion to the com-
282 Spl.C. No.54/2014
plainant (PW 3) that the shares had not been delivered.
124. The aforesaid judgment clearly lays down the criteria that in order to attract the rigors of Section 420 IPC, there must be an element of cheating and defrauding which had commenced right from the inception. Once again when the materials are re-visited, it would clearly indicate that Accused No.4 - M/s.SMSPL being represented by A5 - Mr. S.K.Sail and M/s Sri Lal Mahal Ltd, were fully aware of the seizure that had taken place on 20.03.2010. Even for the sake of arguments if it is to be presumed that the alleged seizure was not in accordance with law, nothing prevented them from knocking the doors of the Hon'ble Court wherein they themselves had approached and in fact, they had misguided the Court by making submission that still the seized materials lie at Belekeri port and without obtaining necessary permission from forest authorities, they had sold the same. The act of committing fraud and cheating could 283 Spl.C. No.54/2014 be readily ascertained from the conduct of the parties. Even otherwise, the Port Conservator at that point of time, Mr. Mahesh J. Bileye was fully aware of the seizure that had taken place at Belekeri port. It is pertinent to note that on 07.08.2010 in the presence of the DMG officials and also the Stevedores another Mahazar was drawn which would indicate that only 2,00,000 MT of Iron ore was available at the Port and the remaining extent was exported. The learned Counsel for Accused No.5 and 6 have not seriously disputed about the presence of their representatives at the time of drawing the Mahazar as per Ex.P12. All the aforesaid acts would only indicate of a situation that the Accused persons had indeed joined together and conspired to cheat and defraud the Government, wherein Accused No.1 - Mahesh G. Bileye who was entrusted with the seized materials had permitted the other Accused persons to meddle with the same and 284 Spl.C. No.54/2014 in fact, he had permitted them to export the seized materials.
125. At this juncture, it would be appropriate to consider what exactly amounts to an act which would be brought within the purview of Section 409 IPC. The provision of Section 409 clearly indicates that there must be a entrustment of property to a public servant in the normal course of business and the said public servant in the way of his business should commit criminal breach of trust. What amounts to criminal breach of trust has been succinctly explained U/s. 405 IPC wherein it states that when a person is entrusted with a property or within his dominion, dishonestly misappropriates or converts to his own use that property or dishonestly uses or disposes that property in violation of any direction of law prescribing the mode in which such trust is to be discharged commits breach of trust. In other words, 285 Spl.C. No.54/2014 what could be construed for attracting the provision of Section 409 of IPC could be culled out as follows: -
a) Person entrusted with property should be a public servant
b) He should be entrusted with property
c) The property should be entrusted in the way of his business
d) The public servant commits breach of trust
126.When the aforesaid aspect is appreciated to the case on hand, it indicates that Mehesh J. Bileye was a public servant at the time of entrusting the property to him on 20.03.2010 and also communicating to him on 24.03.2010. Though it is vehemently argued that he could not have been entrusted with the property for the reason that he was arrayed as Accused in FOC 17/2009-10, the same does not seems to be correct position of law. In fact, it is the settled position of law that the property can be entrusted after drawing the Mahazar to any 286 Spl.C. No.54/2014 respectable member of the locality. In this regard, it would be appropriate to rely upon the Karnataka Forest Manual wherein the procedure has been narrated with respect to drawing of mahazar. The drawing of mahazar is stated as follows: -
68. Drawing up of a Mahazar- (1) Immediately the commission of forest offences detected by any Forest or Police Officers, he shall cause a panchanama or mahazar to be drawn in the presence of such persons, as are available at or near the scene of the offence. If no such person other than Forest Officers are available, at or near the scene of the offence, the panchanama or mahazar can be drawn in their presence itself. If the knowledge of an offence is obtained from the report of 287 Spl.C. No.54/2014 an informer any Forest Officer may be informed, shall either himself proceed at once to the place or depute any of the sub-
ordinate to take similar
action."
127. The aforesaid aspect would clearly
stipulate the conditions which is required to be followed and even otherwise if it is considered that the procedure adopted was an irregular one, the question which is to be looked into is whether the same vitiates the proceedings. In this regard, I have relied upon the authoritative judgment of the Hon'ble Apex Court reported in (2024) 7 SCC 23 (Shento Varghese Vs. Julfikar Hussen and others) wherein it is held as follows: -
20. It is now too well settled that delay in registration of FIR is no ground for quashing of the FIR itself. [Ravinder Kumar v. State of Punjab, (2001) 7 SCC 690: 2001 SCC (Cri) 1384] It follows as a 288 Spl.C. No.54/2014 corollary that if delay in registration of FIR is no ground to quash the FIR, then delay in forwarding such FIR to the Magistrate can also afford no ground for nullification of the FIR. In fact, this Court has gone to the extent of holding that unless serious prejudice is demonstrated to have been suffered as against the accused, mere delay in sending the FIR to the Magistrate by itself will not have any deteriorating effect on the case of the prosecution. [Ravinder Kumar v. State of Punjab, (2001) 7 SCC 690: 2001 SCC (Cri) 1384] If prejudice is demonstrated and the prosecution fails to explain the delay, then, at best, the effect of such delay would only be to render the date and time of lodging the FIR suspect and nothing more.
[Bhajan Singh v. State of Haryana, (2011) 7 SCC 421:
(2011) 3 SCC (Cri) 241: 2011 INSC 422] Drawing from this analogy, the delay in reporting the seizure to the Magistrate may, subject to proof of prejudice, at best, 289 Spl.C. No.54/2014 dent the veracity of the prosecution case vis-à-vis the date, time and occasion for seizure of the property. Since the proof of prejudice on the part of the accused and the explanation for delay on the part of the prosecution can only be demonstrated at trial, the effect of non-
compliance becomes an issue to be adjudicated at the time of appreciation of evidence.
Moreover, this Court has consistently held that even illegalities in the investigation (including illegality in search and seizures) is no ground for setting aside the investigation in toto [H.N. Rishbud & Inder Singh v.
State (Delhi Admn.), (1954) 2 SCC 934] .
21. In the background of the aforesaid discussion, therefore, the line of precedents which have taken the position that "seizure orders" are vitiated for delay in compliance with the reporting obligation are declared to be manifestly erroneous and are accordingly, overruled. The 290 Spl.C. No.54/2014 relevant question to be determined was not whether the duty of the police to report the seizure to the Magistrate is mandatory or directory. Instead, what ought to have been inquired into was whether the exercise of the seizure power was subjected to compliance of reporting obligation, as illustrated in Section 105- EcrPC.
23. The meaning of the word "forthwith" as used in Section 102(3) has not received judicial construction by this Court. However, this Court has examined the scope and contours of this expression as it was used under the Maintenance of Internal Security Act, 1971;
the Preventive Detention Act, 1950; Section 157(1)CrPC;
and the Gujarat Prevention of Anti-Social Activities Act, 1985 in Sk. Salim v. State of W.B. [Sk. Salim v. State of W.B., (1975) 1 SCC 653, paras 10 & 11 : 1975 SCC (Cri) 290] , Alla China Apparao v. State of A.P. [Alla China Apparao v. State of A.P., (2002) 8 SCC 440, para 291 Spl.C. No.54/2014 9 : 2003 SCC (Cri) 87] and Navalshankar Ishwarlal Dave v. State of Gujarat [Navalshankar Ishwarlal Dave v. State of Gujarat, 1993 Supp (3) SCC 754, para 9 : 1993 SCC (Cri) 1126] .
24. This Court, in Rao Mahmood Ahmad Khan v.
Ranbir Singh [Rao Mahmood Ahmad Khan v. Ranbir Singh, 1995 Supp (4) SCC 275] , has held that the word "forthwith" is synonymous with the word "immediately", which means with all reasonable quickness. When a statute requires something to be done "forthwith" or "immediately" or even "instantly", it should probably be understood as allowing a reasonable time for doing it [Bidya Deb Barma v. DM, Tripura, 1968 SCC OnLine SC 82] .
25. The expression "forthwith" has been defined in Black's Law Dictionary, 10th Edn., as under:
292 Spl.C. No.54/2014"Forthwith, adv. (14c) 1.
Immediately; without delay.
2. Directly; promptly; within a reasonable time under the circumstances; with all convenient dispatch."
Wharton's Law Lexicon, 17th Edn. describes "forthwith" as extracted:
Forthwith, when a defendant is ordered to plead forthwith, he must plead within twenty- four hours. When a statute or rule of Court requires an act to be done "forthwith", it means that the act is to be done within a reasonable time having regard to the object of the provision and the circumstances of the case [Southam, In re, ex p Lamb [Southam, In re, ex p Lamb, (1881) 19 Ch D 169: 2 Chit Arch Prac, 14th Edn.] ].
26. From the discussion made above, it would emerge that the expression "forthwith" means "as soon as may be", "with reasonable speed and expedition", "with a sense of urgency", and 293 Spl.C. No.54/2014 "without any unnecessary delay". In other words, it would mean as soon as possible, judged in the context of the object sought to be achieved or accomplished.
27. We are of the considered view that the said expression must receive a reasonable construction and in giving such construction, regard must be had to the nature of the act or thing to be performed and the prevailing circumstances of the case.
When it is not the mandate of the law that the act should be done within a fixed time, it would mean that the act must be done within a reasonable time. It all depends upon the circumstances that may unfold in a given case and there cannot be a straitjacket formula prescribed in this regard. In that sense, the interpretation of the word "forthwith" would depend upon the terrain in which it travels and would take its colour depending upon the prevailing circumstances which can be variable.
294 Spl.C. No.54/2014
28. Therefore, in deciding whether the police officer has properly discharged his obligation under Section 102(3) CrPC, the Magistrate would have to, firstly, examine whether the seizure was reported forthwith. In doing so, it ought to have regard to the interpretation of the expression, "forthwith" as discussed above. If it finds that the report was not sent forthwith, then it must examine whether there is any explanation offered in support of the delay. If the Magistrate finds that the delay has been properly explained, it would leave the matter at that. However, if it finds that there is no reasonable explanation for the delay or that the official has acted with deliberate disregard/wanton negligence, then it may direct for appropriate departmental action to be initiated against such erring official. We once again reiterate that the act of seizure would not get vitiated by virtue of such delay, as discussed in detail hereinabove.
295 Spl.C. No.54/2014
128. In the aforesaid judgment it has been specifically held by the Hon'ble Apex Court that mere irregularity will not vitiate the entire proceedings.
129.The Court has also considered the provision of Section 409 IPC to ascertain whether disposal of property in violation of direction of law would amount to committing the offence. In the instant case, it is to be considered that Accused No.1 was entrusted with the property and thereafter, he had kept quiet and ensured that the officials of A5 - M/s.SMSPL had meddled with the same and later on he had permitted them to get it exported. At the cost of repetition, the letter dated 12.03.2010 addressed by the Director of Port and Inland Water Department clearly stipulates and casts a specific duty on the Port Conservator to check and verify the documents pertaining to the materials which is required to be exported. At the cost of repetition, the Port Conservator though has made an attempt to shrug off from his 296 Spl.C. No.54/2014 responsibilities, had corresponded with the Stevedores and also the forest authorities at the inception to furnish and provide necessary details of the extent of seizure being made by them. If at all he was not entrusted with the domain over the property, then there was no necessity for him to seek clarifications from any such persons. Even otherwise, if the submission of the learned Counsel for Accused No.1 is to be accepted that the Port Conservator is only duty bound to collect the wharfage, anchorage charges, then on what premises he had corresponded with them. The Court also placed its reliance on the proceedings which was carried out by the Government of Karnataka as per Ex. P-28 on 13.04.2010. In the said meeting, it was resolved that necessary directions should be given to verify the goods entering the Belekeri port. Even otherwise, the communication of the letter at Ex. P-26 would clearly indicate that a positive duty was entrusted upon the 297 Spl.C. No.54/2014 Accused No.1. Further, the letter correspondences addressed by the Port Conservator to the Assistant Conservator of Forest, Ankola and later on correspondences at Ex. P-25 and subsequent correspondences made by him calling upon the Stevedores to furnish the exact extent of Iron ores stored and seized would indicate that he was entrusted with certain duties. In this regard, the Court has relied upon the judgement of the Hon'ble Apex Court reported in (2009) 8 SCC 1 (Sudhir Shanthilal Mehta Vs. CBI) wherein it is held as:
100. Even if the words "directions of law" are to be given literal meaning, it would include a direction issued by the authorities in exercise of their statutory power as also the power of supervision. We have opined heretobefore that it has been accepted at the Bar that both the RBI circulars as also the Manual of UCO Bank were binding on the authorities.298 Spl.C. No.54/2014
130. Further, the Court has also relied upon the judgment of the Hon'ble Apex Court reported in (2004) 13 SCC 217 (N.Bhargavan Pillai Vs. State of Kerala) wherein it has been held as
13. It is fairly well-settled position in law that actual mode of entrustment or misappropriation is not to be proved by the prosecution. Once entrustment is proved, it is for the accused to prove as to how the property entrusted was dealt with. In Jiwan Dass case [(1999) 2 SCC 530: 1999 SCC (Cri) 288] the factual position was entirely different. It was held that the undertaking given in that case could not be held to be confession or admission. In the present case, the factual scenario as noticed by the trial court and the High Court is different. It was not only on the basis of the undertaking that the conviction was recorded, but the other evidence on record also unerringly proved entrustment.
Therefore, it was for the accused to prove as to how the property entrusted with him was dealt with. No material was placed in 299 Spl.C. No.54/2014 that regard. Therefore, the courts below correctly held entrustment to have been proved. The concurrent findings of fact recorded by the courts below relating to entrustment and misappropriation in our view are well merited and fully justified on the basis of evidence on record and do not suffer from any perversity or patent error of law to warrant interference.
131. The aforesaid case aptly applies to the above case and at the cost of repetition, it is pertinent to note that the prosecution has proved the entrustment of the property and as such it would be the burden of the accused to explain that entrustment would not be applicable to him. Under the circumstances, the prosecution has established their case beyond reasonable doubt as against Accused No.1 - Mahesh J. Beleya that he had committed an offence punishable U/s. 409 read with Section 120B IPC.
300 Spl.C. No.54/2014
132. Now with respect to the allegations of Sec.13(2) r/w 13 (1)(c)and (d) of Prevention of Corruption Act 1988, the main allegation as noticed above is leveled against accused No.1 that he being the public servant had committed a criminal misconduct as he had dishonestly and fraudulently misappropriated or otherwise conferred the property entrusted to him by allowing the other person to do meddle with the same and as per Sec. 13(d) the relevant portion which is applicable is extracted for the sake of convenience which reads as Sec.13 (1)(d)
(ii) and (iii).
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage ; or
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advan-
tage without any public in-
terest;
301 Spl.C. No.54/2014
133. As could be noticed, the Accused No.1 was a public servant as on the date of seizure and further, he had permitted Accused No.2 to 6 to meddle with the seized property, due to which they were able to export the same and under the circumstances, the provision of the Prevention of Corruption Act is aptly applicable. I have also carefully appreciated that whether the act of the Accused No.1 can be construed as a misconduct.
134. What amounts to misconduct has been explained in the judgment rendered by the Hon'ble Apex Court reported in (2009)8 SCC 617 (State of M.P. v. Sheetla Sahai) wherein it is held as:
46. In Inspector Prem Chand v. Govt. of NCT of Delhi [(2007) 4 SCC 566 : (2007) 2 SCC (L&S) 58 : 2007 AIR SCW 2532] this Court observed: (SCC pp. 570-71, paras 10-11) 302 Spl.C. No.54/2014 "10. In State of Pun- jab v. Ram Singh [(1992) 4 SCC 54 : 1992 SCC (L&S) 793 : (1992) 21 ATC 435] it was stated: (SCC pp. 57-58, para 5) '5. Misconduct has been de-
fined in Black's Law Dictionary, 6th Edn., at p. 999, thus:
"Misconduct.--A transgres- sion of some established and def- inite rule of action, a forbidden act, a dereliction from duty, un- lawful behavior, willful in char- acter, improper or wrong behav- ior; its synonyms are misde- meanor, misdeed, misbehavior, delinquency, impropriety, mis- management, offense, but not negligence or carelessness."
Misconduct in office has
been defined as:
"Misconduct in office.--Any
unlawful behavior by a public of- ficer in relation to the duties of his office, willful in character. Term embraces acts which the office holder had no right to per- form, acts performed improp-303 Spl.C. No.54/2014
erly, and failure to act in the face of an affirmative duty to act."'
11. In P. Ramanatha Aiyar's Law Lexicon, 3rd Edn., at p. 3027, the term 'misconduct' has been defined as under:
'Misconduct. --The term "misconduct" implies a wrongful intention, and not a mere error of judgment.
*** Misconduct is not necessar- ily the same thing as conduct in- volving moral turpitude.
The word "misconduct" is a relative term, and has to be con- strued with reference to the sub- ject-matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being, con- strued. "Misconduct" literally means wrong conduct or im-
proper conduct.' 304 Spl.C. No.54/2014 (See also Bharat Petroleum Corpn. Ltd. v. T.K. Raju [(2006) 3 SCC 143: 2006 SCC (L&S) 480] .)"
47. Even under the Act, an offence cannot be said to have been committed only because the public servant has obtained ei- ther for himself or for any other person any pecuniary advan-
tage. He must do so by abusing his position as a public servant or holding office as a public ser- vant. In the latter category of cases, absence of any public in- terest is a sine qua non. The ma-
terials brought on record do not suggest in any manner whatso-
ever that Respondents 1 to 7 ei-
ther had abused their position or had obtained pecuniary ad-
vantage for Respondents 8, 9 and 10, which was without any public interest.
135. As per the said dictum the misconduct can be construed as not a mere error in judgment but an intentional act. The act of the Accused No.1 cannot be construed as a minor misnomer which would be construed as a misconduct. But indeed, it is an act 305 Spl.C. No.54/2014 which has to be considered as the one which would attract the rigors of Section 13(2) read with Section 13(1)(c) and Section 13(1)(d) of Prevention of Corruption Act which the prosecution has successfully established.
136. That apart, the Court has also considered the submissions made by the learned Counsel for Accused with respect to registration of the F.I.R. It has been vehemently argued by the learned Counsel for Accused that no separate FIRs can be registered with respect to very same offence. It is their contention that as per the kind directions of the Hon'ble Apex Court, the case for investigation came to be entrusted to the CBI authorities. It has been argued that the Hon'ble Apex Court had directed the CBI to investigate with respect to illegal extraction, transportation and export Iron ore across the State of Karnataka. In the instant case, it is contended that the Iron ore which was dumped at Belekeri port was 306 Spl.C. No.54/2014 illegally exported. However, in order to justify the same, it has been submitted that the CBI had registered different FIRs commencing from RC 15(A)/2013 to RC 17(A)/2013. By pointing out the same, it has been argued that length that for offences which would construe as a single consequential one, a single FIR is to be registered. However, by registering the FIRs separately, the prosecution has caused grave injustice to the parties. In order to clarify the aforesaid aspect, the learned prosecutor has relied upon the judgment of the Hon'ble Apex Court reported in (2009) 1 SCC 441 (Nirmal Singh Kahlon Vs. State of Punjab) wherein it has been held as follows: -
44. The second FIR lodged by the Central Bureau of Investiga-
tion (CBI), however, was on a wider canvass. It was lodged after holding a detailed prelim- inary inquiry. CBI collected a large number of materials. It had also recorded the state-
307 Spl.C. No.54/2014ments of a large number of per-
sons. Whereas the first FIR dated 14-6-2002, thus, con-
tained the misdeeds of individ- uals, the second one depicts a crime committed in the course of the selection process of pan- chayat secretaries involving a large number of officers.
46. The second FIR dated 26-6- 2003 enumerates as many as fifteen categories of irregulari- ties committed by various per-
sons involved in the said selec- tion process. Responsibility has not only been fixed upon the appellant but also upon Shri Mandeep Singh, Shri C.L. Pre-
mmy, Shri J.S. Kesar, Shri Joginder Singh as also the then Additional Deputy Commission- ers of Bhatinda, Ropar and Muktsar. The number of ac-
cused who were involved as per preliminary report of CBI were as many as fourteen.
47. The first FIR pointed out of- fences under Sections 420, 467, 468, 120-B of the Penal Code and Sections 13(1)(d), (e) and 13(2) of the Prevention of 308 Spl.C. No.54/2014 Corruption Act but no allega-
tion of conspiracy was made. In the second FIR dated 26-6- 2003, the persons involved were not only the then Minister but also the then Director, the then Division Deputy Director, the then Deputy Directors, the then Additional Deputy Com-
missioners, the then Block De-
velopment Officers, etc.
48. It is in the aforementioned factual backdrop, the order of the High Court dated 31-10- 2002 assumes significance. By reason of the said order, the State Government was given two options viz.:
(i) to make further investigation by removing all those names in the report from their respective offices so as to ensure that fur-
ther inquiry was not influenced by any of those officers; or
(ii) to order a CBI probe into the entire scandal involving the ap- pointment of panchayat secre-
taries.
309 Spl.C. No.54/2014
49. It is in the aforementioned situation the State Government had taken a decision to hand over the investigation of the scandal involving selection of panchayat secretaries to CBI.
50. An offence committed by an individual or two and an of-
fence disclosed in a scandal in- volving a large number of offi-
cers from the lowest category to the highest category is dis-
tinct and different. In the first FIR although the provision of Section 120-B of the Penal Code was mentioned, no allegation of conspiracy had been made.
As indicated hereinbefore, it centered round a large number of acts of omissions and com-
missions on the part of the ap-
pellant Kahlon alone, as would be evident from the following:
"... By misusing his powers, he has made wrong appointments for his benefit and the deserv- ing candidates were over-
looked. By doing this ex-Rural Development and Panchayats Minister has committed crime under Sections 420, 467, 468, 310 Spl.C. No.54/2014 120-B IPC and Sections 13(1)(d),
(e) read with Section 13(2) of the Prevention of Corruption Act...."
51. In the aforementioned cir-
cumstances, the decision of this Court in Ram Lal Narang v. State (Delhi Admn.) [(1979) 2 SCC 322: 1979 SCC (Cri) 479] assumes signifi- cance. This Court therein was concerned with two FIRs; both lodged by the Central Bureau of Investigation. The first one con- tained allegation against two persons viz. Malik and Mehra under Section 120-B of the Pe-
nal Code read with Sections 406 and 420 IPC thereof wherein CBI filed a charge-
sheet. Later on, however, some subsequent events emerged re-
sulting in lodging the FIR not only against Malik and Mehra but also against Narang and his two brothers. This Court opined: (SCC pp. 331-32, paras 11-12) "11. ... The offences alleged in the first case were Section 120- B read with Section 420 and 311 Spl.C. No.54/2014 Section 406 IPC, while the of-
fences alleged in the second case were Section 120-B read with Section 411 IPC and Sec-
tion 25 of the Antiquities and Art Treasures Act, 1972. It is true that the Antiquities and Art Treasures Act had not yet come into force on the date when the FIR was registered. It is also true that Omi Narang and Manu Narang were not ex-
tradited for the offence under the Antiquities and Art Trea-
sures Act, and, therefore, they could not be tried for that of-
fence in India. But the question whether any of the accused may be tried for a contraven-
tion of the Antiquities and Art Treasures Act or under the cor-
responding provision of the ear- lier Act is really irrelevant in deciding whether the two con-
spiracies are one and the same.
The trite argument that a court takes cognizance of offences and not offenders was also ad-
vanced. This argument is again of no relevance in determining the question whether the two conspiracies which were taken cognizance of by the Ambala and the Delhi Courts were the 312 Spl.C. No.54/2014 same in substance. The ques-
tion is not whether the nature and character of the conspir-
acy has changed by the mere inclusion of a few more conspir- ators as accused or by the addi-
tion of one more among the ob-
jects of the conspiracy. The question is whether the two conspiracies are in substance and truth the same. Where the conspiracy discovered later is found to cover a much larger canvas with broader ramifica-
tions, it cannot be equated with the earlier conspiracy which covered a smaller field of nar-
rower dimensions. We are clear, in the present case, that the conspiracies which are the subject-matter of the two cases cannot be said to be identical though the conspiracy which is the subject-matter of the first case may, perhaps, be said to have turned out to be part of the conspiracy which is the subject-matter of the second case. As we mentioned earlier, when investigation commenced in FIR RC 4 of 1976, apart from the circumstance that the prop- erty involved was the same, the link between the conspiracy to 313 Spl.C. No.54/2014 cheat and to misappropriate and the conspiracy to dispose of the stolen property was not known.
12. The further connected ques- tions arising for consideration are, what was the duty of the police on discovering that the conspiracy, which was the sub-
ject-matter of the earlier case, was part of a larger conspir-
acy, whether the police acted without jurisdiction in investi- gating or in continuing to in-
vestigate into the case and whether the Delhi Court acted illegally in taking cognizance of the case?"
52. It may be true that in both the FIRs Kahlon was named. He was considered to be the prime accused. But it is one thing to say that he acted in his individ- ual capacity and it is another thing to say that he conspired with a large number of persons to facilitate commission of crime by him as a result whereof all of them had made unlawful gains.314 Spl.C. No.54/2014
53. Even in Ram Lal Narang [(1979) 2 SCC 322: 1979 SCC (Cri) 479] we have seen that two of the accused viz. Mehra and Malik, were com-
mon. When two conspiracies are alleged; one is larger than the other, there may be some common factors but the nature of offence would differ. An of- fence committed would not be judged by mere mentioning of the sections but the mode and manner in which the same was committed as also the nature thereof.
54. Strong reliance has been placed by Mr Rao on T.T. Antony [(2001) 6 SCC 181: 2001 SCC (Cri) 1048] and Kari Choud-
hary [(2002) 1 SCC 714: 2002 SCC (Cri) 269]. In T.T. Antony [(2001) 6 SCC 181: 2001 SCC (Cri) 1048] the first FIR was lodged in 1994; another FIR was lodged three years thereafter on the selfsame cause of action. Ram Lal Narang [(1979) 2 SCC 322: 1979 SCC (Cri) 479] in the said fact situation was distinguished on facts, opining: (T.T. Antony 315 Spl.C. No.54/2014 case [(2001) 6 SCC 181: 2001 SCC (Cri) 1048], p. 198, para
21) "21. ... This Court indicated that the real question was whether the two conspiracies were in truth and substance the same and held that the con-
spiracies in the two cases were not identical. It appears to us that the Court did not repel the contention of the appellant re- garding the illegality of the second FIR and the investiga-
tion based thereon being viti-
ated, but on facts found that the two FIRs in truth and sub-
stance were different -- the first was a smaller conspiracy and the second was a larger conspiracy as it turned out eventually."
137. Further in another judgment which is relied upon by the prosecution is required to be considered, wherein it has been held in the case of (2013)6 SCC 348 (Amitbhai Anilchandra Shah v. CBI) wherein it has been held as:
316 Spl.C. No.54/2014
Legal aspects as to permissibil- ity/impermissibility of second FIR
36. Now, let us consider the le-
gal aspects raised by the peti-
tioner Amit Shah as well as CBI. The factual details which we have discussed in the earlier paragraphs show that right from the inception of entrust-
ment of investigation to CBI by order dated 12-1-2010 [(2010) 2 SCC 200: (2010) 2 SCC (Cri) 1006] till filing of the charge- sheet dated 4-9-2012, this Court has also treated the alleged fake encounter of Tulsiram Pra- japati to be an outcome of one single conspiracy alleged to have been hatched in November 2005 which ultimately culmi-
nated in 2006. In such circum-
stances, the filing of the second FIR and a fresh charge-sheet for the same is contrary to the pro-
visions of the Code suggesting that the petitioner was not be-
ing investigated, prosecuted and tried "in accordance with law".
37. This Court has consistently laid down the law on the issue interpreting the Code, that a second FIR in respect of an of-
fence or different offences com- 317 Spl.C. No.54/2014 mitted in the course of the same transaction is not only imper-
missible but it violates Article 21 of the Constitution. In T.T. Antony [(2001) 6 SCC 181: 2001 SCC (Cri) 1048] , this Court has categorically held that registra- tion of second FIR (which is not a cross-case) is violative of Arti- cle 21 of the Constitution. The following conclusion in paras 19, 20 and 27 of that judgment are relevant which read as un- der: (SCC pp. 196-97 & 200) "19. The scheme of CrPC is that an officer in charge of a police station has to commence inves-
tigation as provided in Section 156 or 157 CrPC on the basis of entry of the first information re- port, on coming to know of the commission of a cognizable of-
fence. On completion of investi- gation and on the basis of the evidence collected, he has to form an opinion under Section 169 or 170 CrPC, as the case may be, and forward his report to the Magistrate concerned un- der Section 173(2) CrPC. How-
ever, even after filing such a re- port, if he comes into posses-
sion of further information or material, he need not register a fresh FIR; he is empowered to make further investigation, nor- mally with the leave of the 318 Spl.C. No.54/2014 court, and where during further investigation he collects further evidence, oral or documentary, he is obliged to forward the same with one or more further reports; this is the import of sub-section (8) of Section 173 CrPC.
20. From the above discussion it follows that under the scheme of the provisions of Sections 154, 155, 156, 157, 162, 169, 170 and 173 CrPC only the ear-
liest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154 CrPC. Thus, there can be no sec-
ond FIR and consequently there can be no fresh investigation on receipt of every subsequent in- formation in respect of the same cognizable offence or the same occurrence or incident giv- ing rise to one or more cogniz-
able offences. On receipt of in- formation about a cognizable offence or an incident giving rise to a cognizable offence or offences and on entering the FIR in the station house diary, the officer in charge of a police station has to investigate not merely the cognizable offence reported in the FIR but also other connected offences found to have been committed in the 319 Spl.C. No.54/2014 course of the same transaction or the same occurrence and file one or more reports as provided in Section 173 CrPC.
***
27. A just balance between the fundamental rights of the citi- zens under Articles 19 and 21 of the Constitution and the ex-
pansive power of the police to investigate a cognizable offence has to be struck by the court.
There cannot be any contro-
versy that sub-section (8) of Sec- tion 173 CrPC empowers the po-
lice to make further investiga- tion, obtain further evidence (both oral and documentary) and forward a further report or reports to the Magistrate.
In Narang case [Ram Lal Narang v. State (Delhi Admn.), (1979) 2 SCC 322: 1979 SCC (Cri) 479] it was, however, ob-
served that it would be appro-
priate to conduct further inves- tigation with the permission of the court. However, the sweep-
ing power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable of-
fences, consequent upon filing 320 Spl.C. No.54/2014 of successive FIRs whether be-
fore or after filing the final re- port under Section 173(2) CrPC. It would clearly be beyond the purview of Sections 154 and 156 CrPC, nay, a case of abuse of the statutory power of inves- tigation in a given case. In our view a case of fresh investiga-
tion based on the second or suc-
cessive FIRs, not being a counter-case, filed in connec- tion with the same or connected cognizable offence alleged to have been committed in the course of the same transaction and in respect of which pur-
suant to the first FIR either in- vestigation is under way or fi-
nal report under Section 173(2) has been forwarded to the Mag-
istrate, may be a fit case for ex- ercise of power under Section 482 CrPC or under Articles 226/227 of the Constitution."
The above referred declaration of law by this Court has never been diluted in any subsequent judicial pronouncements even while carving out exceptions.
38. Mr Raval, learned ASG, by referring T.T. Antony [(2001) 6 SCC 181: 2001 SCC (Cri) 1048] submitted that the said princi- ples are not applicable and rele- 321 Spl.C. No.54/2014 vant to the facts and circum-
stances of this case as the said judgment laid down the ratio that there cannot be two FIRs relating to the same offence or occurrence. The learned ASG further pointed out that in the present case, there are two dis- tinct incidents/occurrences, inasmuch as one being the con-
spiracy relating to the murder of Sohrabuddin with the help of Tulsiram Prajapati and the other being the conspiracy to murder Tulsiram Prajapati -- a potential witness to the earlier conspiracy to murder Sohrabud- din. We are unable to accept the claim of the learned ASG. As a matter of fact, the aforesaid proposition of law making reg-
istration of fresh FIR impermis- sible and violative of Article 21 of the Constitution is reiterated and reaffirmed in the following subsequent decisions of this Court : (1) Upkar Singh v. Ved Prakash [(2004) 13 SCC 292 :
2005 SCC (Cri) 211] , (2) Babub- hai v. State of Gujarat [(2010) 12 SCC 254 : (2011) 1 SCC (Cri) 336] , (3) Chirra Shivraj v. State of A.P. [(2010) 14 SCC 444 :
(2011) 3 SCC (Cri) 757 : AIR 2011 SC 604] , and (4) C. Mu-
niappan v. State of T.N. [(2010) 9 SCC 567 : (2010) 3 SCC (Cri) 1402] In C. Muniappan [(2010) 9 322 Spl.C. No.54/2014 SCC 567 : (2010) 3 SCC (Cri) 1402] this Court explained the "consequence test" i.e. if an of- fence forming part of the sec-
ond FIR arises as a consequence of the offence alleged in the first FIR then offences covered by both the FIRs are the same and, accordingly, the second FIR will be impermissible in law. In other words, the of-
fences covered in both the FIRs shall have to be treated as a part of the first FIR.
43. In Babulal [(1937-38) 65 IA 158: AIR 1938 PC 130], the Privy Council has held that: (IA p. 176) "... if several persons conspire to commit offences, and commit overt acts in pursuance of the conspiracy (a circumstance which makes the act of one the act of each and all the conspir-
ators), these acts are committed in the course of the same trans-
action, which embraces the con- spiracy and the acts done under it. The common concert and agreement which constitute the conspiracy serve to unify the acts done in pursuance of it."
323 Spl.C. No.54/2014
44. In Swamirathnam [AIR 1957 SC 340: 1957 Cri LJ 422] , the following conclusion in para 7 is relevant : (AIR p. 344) "7. On behalf of the appellant Abu Bucker, it was contended that there has been misjoinder of charges on the ground that several conspiracies, distinct from each other, had been lumped together and tried at one trial. The advocate for Swamirathnam, however, did not put forward this submis-
sion. We have examined the charge carefully and find no ground for accepting the con-
tention raised. The charge, as framed, discloses one single conspiracy, although spread over several years. There was only one object of the conspir-
acy and that was to cheat mem-
bers of the public. The fact that in the course of years others joined the conspiracy or that several incidents of cheating took place in pursuance of the conspiracy did not change the conspiracy and did not split up a single conspiracy into several conspiracies. It was suggested that although the modus operandi may have been the same, the several instances of cheating were not part of the same transaction. Reliance was 324 Spl.C. No.54/2014 placed on the case of Sharpurji Sorabji v. Emperor [AIR 1936 Bom 154] , and on the case of Choragudi Venkatadri v. Em-
peror [ILR (1910) 33 Mad 502] .
These cases are not in point. In the Bombay case, no charge of conspiracy had been framed and the decision in the Madras case was given before Section 120-B was introduced into the Penal Code. In the present case, the instances of cheating were in pursuance of the conspiracy and were therefore parts of the same transaction."
45. In Kandimalla Subba-
iah [AIR 1961 SC 1241: (1961) 2 Cri LJ 302] this Court held that where the alleged offence have been committed in the course of the same transaction, the limi- tation placed by Section 234(1) CrPC, 1898 cannot operate.
52.Ram Lal Narang [Ram Lal Narang v. State (Delhi Admn.), (1979) 2 SCC 322 : 1979 SCC (Cri) 479] was cited to be an au-
thority carving out an exception to the general rule that there cannot be a second FIR in re-
spect of the same offence. This Court, in the said decision, held that a second FIR would lie in an event when pursuant to the 325 Spl.C. No.54/2014 investigation in the first FIR, a larger conspiracy is disclosed, which was not part of the first FIR. In the case on hand, while entrusting the investigation of the case relating to the killing of Sohrabuddin and Kausarbi to CBI, this Court, by order dated 12-1-2010 [(2010) 2 SCC 200 :
(2010) 2 SCC (Cri) 1006] , ex-
pressed a suspicion that Tul-
siram Prajapati could have been killed because he was an eye-
witness to the killings of Sohrabuddin and Kausarbi.
138. I have bestowed my anxious reading to the contentions which has been urged by both parties. In my humble opinion, the judgment of the Hon'ble Apex court clearly indicates that no two separate FIR can be registered on the basis of same transaction or cause of action. In the instant case, it pertains to larger conspiracy and as pointed out by the prosecution, the offence which is alleged against some of the accused persons are pertaining to illegal extraction of iron ore which cannot be clubbed with the illegal transportation of iron ore and at the same time, the question of illegal export of Iron ore cannot 326 Spl.C. No.54/2014 be clubbed and considered. It is relevant to note that in the instant case the stevedore or the service provider is M/s. SMSPL, however the allegations which is leveled against them are of illegal selling of seized Iron ore from Belekeri port and in all the cases, the Accused company was M/s SMSPL which was being represented by its M. D Mr. Sathish Krishna Sail. Further the sale of Iron ore was being made on different dates and also its export was carried out on different dates through different vessels. Under the circumstances the contention of the Accused persons in this regard cannot be accepted.
139. The learned Senior counsel for Accused has relied upon another judgment of the Hon'ble Apex court reported in the case (1988)4 SCC 302 (State of U.P. V Krishna Gopal and Another) wherein it is held as:
25. A person has, no doubt, a profound right not to be con-
victed of an offence which is not 327 Spl.C. No.54/2014 established by the evidential standard of proof beyond reason- able doubt. Though this stan-
dard is a higher standard, there is, however, no absolute stan-
dard. What degree of probability amounts to "proof" is an exer-
cise particular to each case. Re- ferring to the interdependence of evidence and the confirmation of one piece of evidence by another a learned Author says [ See:"The Mathematics of Proof-II" :
Glanville Williams : Criminal Law Review, 1979, by Sweet and Maxwell, p. 340 (342)] :
"The simple multiplication rule does not apply if the sepa- rate pieces of evidence are de- pendent. Two events are depen- dent when they tend to occur to- gether, and the evidence of such events may also be said to be de- pendent. In a criminal case, dif- ferent pieces of evidence di- rected to establishing that the defendant did the prohibited act with the specified state of mind are generally dependent. A juror may feel doubt whether to credit an alleged confession, and doubt whether to infer guilt from the 328 Spl.C. No.54/2014 fact that the defendant fled from justice. But since it is gen- erally guilty rather than inno- cent people who make confes- sions, and guilty rather than in- nocent people who run away, the two doubts are not to be multi- plied together. The one piece of evidence may confirm the other."
Doubts would be called rea-
sonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an over-emotional response. Doubts must be actual and sub-
stantial doubts as to the guilt of the accused person arising from the evidence, or from the lack of it, as opposed to mere vague ap-
prehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case.
26. The concepts of proba-
bility, and the degrees of it, can- not obviously be expressed in terms of units to be mathemati-
329 Spl.C. No.54/2014
cally enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjec- tive element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust com-
mon sense and, ultimately, on the trained intuitions of the Judge. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, unin-
formed legitimisation of triviali- ties would make a mockery of administration of criminal jus- tice.
140. There cannot be any qualms with respect to the ratio laid down in the aforesaid judgment. Though it has been vehemently argued that the manner of investigation which is conducted by the CBI is not befitting to their stature, it is to be kept in mind about the peculiar facts and circumstance which had transpired in the above case. At the cost of repetition, it is to be considered that initially, the investigation 330 Spl.C. No.54/2014 had commenced when the FIR came to be registered by Forest authorities and subsequently the investigation came to be handed over to jurisdictional police station at Ankola. In this regard the evidence of PW-27 Shivanand H Chalawadi is required to be appreciated. In his chief examination he has deposed that on 08.06.2010 he had received the copy of the directions issued by the jurisdictional JMFC court at Ankola in PCR No.54/2010 wherein it was directed to him to investigate the case and to file the report. It is relevant to note that at that point of time the main allegations were leveled only against Accused No.1 the Port conservator Mr Mahesh J Bileye and accordingly FIR came to be registered as Ex P-106 in Cr.No.159/2010. In his further evidence he has deposed that subsequently another complaint was lodged by Mr Narendra Hitalmakki requesting to include the name of 11 companies who were involved in theft of Iron ore and at this juncture the case takes 331 Spl.C. No.54/2014 a different turn and after that the investigation was entrusted to CID authorities which was later on entrusted to CBI as per the kind directions of the Hon'ble Apex Court. The facts which have transpired is certainly very peculiar in nature and the investigation was entrusted to CBI in the year 2013. Admittedly, the incident of theft of seized Iron ore at Balekeri port had taken place in the year 2010 and the investigation was taken up by CBI in the year 2013. It is also relevant to note that the Belekeri port is a seasonal port and it would be closed during the Mansoon period. Hence, it would not be appropriate to expect from the subsequent investigation agency to once again draw mahazar as contended by the learned defence counsels. As such the entire materials which are collected by the investigating agency is required to be considered with a pragmatic approach. The records speak volumes for the acts committed by the parties. Though learned Senior 332 Spl.C. No.54/2014 Counsel has vehemently argued that the prosecution has relied upon the computer extracts at majority of times to prove the alleged transactions that had taken place, it is also required to be appreciated that the said documents were furnished by the Accused themselves and they were in fact marked without there being any objection and in fact they have also admitted of issuing of the afore said documents. The court is solely not relying upon the documents which are produced by the Accused persons but the same is considered with the mahazars which were drawn in the year 2010 to ascertain and unearth the reality.
141. I have also bestowed upon the submission made by the learned Counsel for Accused No.1, wherein it is submitted that the Accused No.1 Mr. Mahesh J Bileye has been exonerated in the Departmental Enquiry initiated and it is submitted that when the accused is exonerated in the Departmental enquiry based on very same of facts 333 Spl.C. No.54/2014 and circumstances, his criminal proceedings cannot be sustained. The learned Counsel for accused has placed reliance on the judgment rendered by the Hon'ble Apex court reported in the case of (2020)9 SCC 636 (Ashoo Surendranath Tewari V The Deputy Superintendent of Police, EOW, CBI and Another) wherein it is held as:
11. In Radheshyam Kejri-
wal v. State of W.B. [Rad-
heshyam Kejriwal v. State of
W.B., (2011) 3 SCC 581 : (2011) 2 SCC (Cri) 721] , this Court held as follows: (SCC pp. 594-96, paras 26, 29 & 31) "26. We may observe that the standard of proof in a crimi-
nal case is much higher than that of the adjudication proceed- ings. The Enforcement Direc-
torate has not been able to prove its case in the adjudication pro- ceedings and the appellant has been exonerated on the same al-
legation. The appellant is facing trial in the criminal case. There- fore, in our opinion, the determi- 334 Spl.C. No.54/2014 nation of facts in the adjudica- tion proceedings cannot be said to be irrelevant in the criminal case. In B.N. Kashyap [B.N. Kashyap v. Crown, 1944 SCC On-
Line Lah 46 : AIR 1945 Lah 23] the Full Bench had not consid-
ered the effect of a finding of fact in a civil case over the crim- inal cases and that will be evi-
dent from the following passage of the said judgment: (SCC On-
Line Lah: AIR p. 27) '... I must, however, say that in answering the question, I have only referred to civil cases where the actions are in per-
sonam and not those where the proceedings or actions are in rem. Whether a finding of fact arrived at in such proceedings or actions would be relevant in criminal cases, it is unnecessary for me to decide in this case.
When that question arises for determination, the provisions of Section 41 of the Evidence Act, will have to be carefully exam-
ined.' *** 335 Spl.C. No.54/2014
29. We do not have the slightest hesitation in accepting the broad submission of Mr Mal-
hotra that the finding in an ad-
judication proceeding is not binding in the proceeding for criminal prosecution. A person held liable to pay penalty in ad- judication proceedings cannot necessarily be held guilty in a criminal trial. Adjudication pro- ceedings are decided on the ba-
sis of preponderance of evidence of a little higher degree whereas in a criminal case the entire bur- den to prove beyond all reason-
able doubt lies on the prosecu-
tion.
***
31. It is trite that the stan-
dard of proof required in crimi- nal proceedings is higher than that required before the adjudi- cating authority and in case the accused is exonerated before the adjudicating authority whether his prosecution on the same set of facts can be allowed or not is the precise question which falls for determination in this case." 336 Spl.C. No.54/2014
12. After referring to vari-
ous judgments, this Court then culled out the ratio of those deci- sions in para 38 as follows:
(Radheshyam Kejriwal case [Rad-
heshyam Kejriwal v. State of W.B., (2011) 3 SCC 581: (2011) 2 SCC (Cri) 721] , SCC p. 598) "38. The ratio which can be culled out from these decisions can broadly be stated as follows:
(i) Adjudication proceedings and criminal prosecution can be launched simultaneously;
(ii) Decision in adjudication proceedings is not necessary be-
fore initiating criminal prosecu- tion;
(iii) Adjudication proceed-
ings and criminal proceedings are independent in nature to each other;
(iv) The finding against the person facing prosecution in the adjudication proceedings is not 337 Spl.C. No.54/2014 binding on the proceeding for criminal prosecution;
(v) Adjudication proceedings by the Enforcement Directorate is not prosecution by a compe-
tent court of law to attract the provisions of Article 20(2) of the Constitution or Section 300 of the Code of Criminal Procedure;
(vi) The finding in the adju-
dication proceedings in favour of the person facing trial for identi- cal violation will depend upon the nature of finding. If the ex- oneration in adjudication pro- ceedings is on technical ground and not on merit, prosecution may continue; and
(vii) In case of exoneration, however, on merits where the al- legation is found to be not sus-
tainable at all and the person held innocent, criminal prosecu- tion on the same set of facts and circumstances cannot be allowed to continue, the underlying prin- ciple being the higher standard of proof in criminal cases."
338 Spl.C. No.54/2014
142. There can be no qualms with respect to the ratio laid down by the Hon'ble Apex court but the conclusion which is drawn by the Hon'ble Apex court is required to be appreciated. In the aforesaid judgment the Hon'ble Apex court has clearly held that there cannot be any bar to initiate Departmental proceedings as well as criminal proceeding. Further it has been held that if exoneration of the person facing trial for identical violation will depend on nature of finding and at conclusion it has been held by the Hon'ble Apex court that the yardstick would be to judge as to whether the allegation in the adjudication proceedings and the proceedings of prosecution are identical in nature. In this regard, I have also considered the document which has been furnished by the Accused No.1 with respect to the orders passed in the adjudication proceedings before the Government. It is relevant to note that in those proceedings it was held that the act of Accused No.1 339 Spl.C. No.54/2014 in issuing clearance certificate was as per the provisions of section 43 of Indian Ports Act, 1908. However, the documents don't indicate that whether the witnesses who were examined were one and the same. At the cost of repetition, it is relevant to note that criminal proceedings were initiated not only for issuance of port clearance by Accused No.1 but for entering into larger conspiracy with another accused person. At the cost of repetition, it is relevant to note that it is the definite case of the prosecution that he in furtherance of conspiracy had issued port clearance of the seized Iron Ore materials which were entrusted to his custody. Though it is argued that he was not entrusted with the domain over the seized materials, it has been negated and held in favour of the prosecution of establishing the fact of entrustment of the property. Under the circumstances the contention of the accused No.1 in this regard cannot be accepted. Further the court has relied upon 340 Spl.C. No.54/2014 the judgment of the Hon'ble High court of Karnataka rendered in State by Karnataka Lokayuktha V T Manjunath in Crl.R.P. No.422/2018 decided on 26.7.2024 it has been held as:
18. The Apex Court also an observation is made in paragraph 9 that the continuance of the trial was not on the very same evidence as what weighed with the authorities in exonerating the employee in the departmental proceedings. This fact, also appears not to have been considered by the High Court in its correct perspective. In the case on hand also, departmental enquiry is different with regard to misconduct.
But in the case on hand, there is a criminal misconduct making demand and acceptance of bribe amount. Hence, having considered the material available on record, it needs to comes to the conclusion that the principles laid down in the case of ASHOO SURENDRANATH TEWARI is not applicable to the facts of the case on hand when there is an evidence of conversation with regard to demand and acceptance of bribe amount of Rs.15,000/- through accused No.2. When the criminal misconduct has been alleged against a Government employee who is discharging the duty as a public servant, demanded the amount illegally and raid was 341 Spl.C. No.54/2014 conducted and material discloses regarding demand and acceptance of the same, it needs trial and even exonerating him in Departmental Enquiry will not come in the way of continuing the trial against the petitioner/accused No1. Hence, I do not find any merit in the petition filed by the petitioner/accused No1. Even though, questioning of giving liberty to proceed further against accused No.1/petitioner, no grounds are made out even for setting aside the order of giving liberty to proceed against him in accordance with law. I have already pointed out that the question of giving liberty also does not arise when sanction is accorded by the Competent Authority in terms of the Notification dated 11.02.2010 which has been extracted above which confers on the Transport Commissioner to accord the sanction in view of the order of the Government. Hence, the order impugned is liable to be set aside and the Trial Court has to proceed further against the accused Nos.1 and 2 in accordance with law.
143. Last but not the least, I have bestowed my anxious reading to the fact that Accused No.2 company was being represented by its authorized representative and the Accused No.3 Prem Chand Garg. It is alleged that he was the one who was 342 Spl.C. No.54/2014 involved in the affairs of the company. In this regard it would be worthwhile to consider the relevant provisions of law with respect to Body Corporate. Companies are considered as legal persons. As per the provisions of Section 11 of Indian Penal Code, the inclusive definition of the word 'Person' can be traced. A person includes Company, or Association or Body of person whether incorporated or not. The provisions of Section 305 of Cr.P.C provides for the procedure to be adopted when Company or Registered Society is an accused. The main aspect which is required to be considered with respect to the act committed by or on behalf of the company is that not only he was holding vital or important post in the company or the Body Corporate at the time of committing of offence, but also, he was in-charge of and was at helm of affairs of the company. The concept of 'alter ego' of the company. In this regard reliance is placed on the judgment of the Hon'ble Apex Court reported in 343 Spl.C. No.54/2014 (2015) 4 SCC 609 in the case of (Sunil Bharathi Mittal V C.B.I) wherein it is held as:
(ii) Principle of "alter ego", as applied
37. The moot question is whether the aforesaid proposition, to proceed against the appellants is backed by law? In order to find the answer, let us scan through the case law that was cited during the arguments.
38. First case which needs to be discussed is Iridium India [Iridium India Telecom Ltd. v. Motorola Inc., (2011) 1 SCC 74 :
(2010) 3 SCC (Cri) 1201] . Before we discuss the facts of this case, it would be relevant to point out that the question as to whether a company could be prosecuted for an offence which requires mens rea had been earlier referred to in a Constitution Bench of five Judges in Standard Chartered Bank v. Directorate of Enforcement [(2005) 4 SCC 530 : 2005 SCC (Cri) 961] . The Constitution Bench had held that a company can be prosecuted and convicted for an offence which requires a minimum sentence of imprisonment. In para 8 of the judgment, the Constitution Bench clarified that the Bench is not 344 Spl.C. No.54/2014 expressing any opinion on the question whether a corporation could be attributed with requisite mens rea to prove the guilt. Para 8 reads as under : (SCC p. 542) "8. ... It is only in a case requiring mens rea, a question arises whether a corporation could be attributed with requisite mens rea to prove the guilt. But as we are not concerned with this question in these proceedings, we do not express any opinion on that issue."
39. In Iridium India [Iridium India Telecom Ltd. v. Motorola Inc., (2011) 1 SCC 74 : (2010) 3 SCC (Cri) 1201] , the aforesaid question fell directly for consideration, namely, whether a company could be prosecuted for an offence which requires mens rea and discussed this aspect at length, taking note of the law that prevails in America and England on this issue. For our benefit, we will reproduce paras 59-64 herein :
(SCC pp. 98-100) "59. The courts in England have emphatically rejected the notion that a body corporate could not commit a criminal offence which was an outcome of an act of will needing a particular state of mind. The aforesaid notion has been rejected by adopting the doctrine of attribution 345 Spl.C. No.54/2014 and imputation. In other words, the criminal intent of the 'alter ego' of the company/body corporate i.e. the person or group of persons that guide the business of the company, would be imputed to the corporation.
60. It may be appropriate at this stage to notice the observations made by MacNaghten, J. in Director of Public Prosecutions v. Kent and Sussex Contractors Ltd. [1944 KB 146 : (1944) 1 All ER 119 (DC)] : (KB p.
156) A body corporate is a "person"
to whom, amongst the various attributes it may have, there should be imputed the attribute of a mind capable of knowing and forming an intention--indeed it is much too late in the day to suggest the contrary. It can only know or form an intention through its human agents, but circumstances may be such that the knowledge of the agent must be imputed to the body corporate. Counsel for the respondents says that, although a body corporate may be capable of having an intention, it is not capable of having a criminal intention. In this particular case the intention was the intention to deceive. If, as in this case, the responsible agent of a body 346 Spl.C. No.54/2014 corporate puts forward a document knowing it to be false and intending that it should deceive, I apprehend, according to the authorities that Viscount Caldecote, L.C.J., has cited, his knowledge and intention must be imputed to the body corporate.
61. The principle has been reiterated by Lord Denning in Bolton (H.L.)(Engg.) Co. Ltd. v. T.J. Graham & Sons Ltd. [(1957) 1 QB 159 : (1956) 3 WLR 804 : (1956) 3 All ER 624 (CA)] in the following words : (QB p. 172) A company may in many ways be likened to a human body. They have a brain and a nerve centre which controls what they do. They also have hands which hold the tools and act in accordance with directions from the centre. Some of the people in the company are mere servants and agents who are nothing more than hands to do the work and cannot be said to represent the mind or will. Others are Directors and managers who represent the directing mind and will of the company, and control what they do. The state of mind of these managers is the state of mind of the company and is treated by the law as such. So you will find that in cases where the law requires personal fault as a condition of liability in tort, the fault of the manager will be the 347 Spl.C. No.54/2014 personal fault of the company. That is made clear in Lord Haldane's speech in Lennard's Carrying Co.
Ltd. [1915 AC 705 : (1914-15) All ER Rep 280 (HL)] (AC at pp. 713 & 714). So also in the criminal law, in cases where the law requires a guilty mind as a condition of a criminal offence, the guilty mind of the Directors or the managers will render the company themselves guilty.
62. The aforesaid principle has been firmly established in England since the decision of the House of Lords in Tesco Supermarkets Ltd. v. Nattrass [1972 AC 153 : (1971) 2 WLR 1166 : (1971) 2 All ER 127 (HL)] . In stating the principle of corporate liability for criminal offences, Lord Reid made the following statement of law : (AC p. 170 E-G) 'I must start by considering the nature of the personality which by a fiction the law attributes to a corporation. A living person has a mind which can have knowledge or intention or be negligent and he has hands to carry out his intentions. A corporation has none of these : it must act through living persons, though not always one or the same person. Then the person who acts is not speaking or acting for the company. He is acting as 348 Spl.C. No.54/2014 the company and his mind which directs his acts is the mind of the company. There is no question of the company being vicariously liable. He is not acting as a servant, representative, agent or delegate. He is an embodiment of the company or, one could say, he hears and speaks through the persona of the company, within his appropriate sphere, and his mind is the mind of the company. If it is a guilty mind then that guilt is the guilt of the company. It must be a question of law whether, once the facts have been ascertained, a person in doing particular things is to be regarded as the company or merely as the company's servant or agent. In that case any liability of the company can only be a statutory or vicarious liability.'
63. From the above it becomes evident that a corporation is virtually in the same position as any individual and may be convicted of common law as well as statutory offences including those requiring mens rea. The criminal liability of a corporation would arise when an offence is committed in relation to the business of the corporation by a person or body of persons in control of its affairs. In such circumstances, it would be necessary to ascertain that the degree and control of the person or body of 349 Spl.C. No.54/2014 persons is so intense that a corporation may be said to think and act through the person or the body of persons. The position of law on this issue in Canada is almost the same. Mens rea is attributed to corporations on the principle of 'alter ego' of the company.
64. So far as India is concerned, the legal position has been clearly stated by the Constitution Bench judgment of this Court in Standard Chartered Bank v. Directorate of Enforcement [(2005) 4 SCC 530 : 2005 SCC (Cri) 961] . On a detailed consideration of the entire body of case laws in this country as well as other jurisdictions, it has been observed as follows : (SCC p. 541, para
6) '6. There is no dispute that a company is liable to be prosecuted and punished for criminal offences. Although there are earlier authorities to the effect that corporations cannot commit a crime, the generally accepted modern rule is that except for such crimes as a corporation is held incapable of committing by reason of the fact that they involve personal malicious intent, a corporation may be subject to indictment or other criminal process, although the criminal act is committed through its agents.'" 350 Spl.C. No.54/2014
40. It is abundantly clear from the above that the principle which is laid down is to the effect that the criminal intent of the "alter ego" of the company, that is the personal group of persons that guide the business of the company, would be imputed to the company/corporation. The legal proposition that is laid down in the aforesaid judgment in Iridium India case [Iridium India Telecom Ltd. v. Motorola Inc., (2011) 1 SCC 74 : (2010) 3 SCC (Cri) 1201] is that if the person or group of persons who control the affairs of the company commit an offence with a criminal intent, their criminality can be imputed to the company as well as they are "alter ego" of the company.
41. In the present case, however, this principle is applied in an exactly reverse scenario. Here, company is the accused person and the learned Special Magistrate has observed in the impugned order that since the appellants represent the directing mind and will of each company, their state of mind is the state of mind of the company and, therefore, on this premise, acts of the company are attributed and imputed to the appellants. It is difficult to accept it as the correct principle of law. As demonstrated hereinafter, this proposition would run contrary to the 351 Spl.C. No.54/2014 principle of vicarious liability detailing the circumstances under which a Director of a company can be held liable.
(iii) Circumstances when Director/person in charge of the affairs of the company can also be prosecuted, when the company is an accused person
42. No doubt, a corporate entity is an artificial person which acts through its officers, Directors, Managing Director, Chairman, etc. If such a company commits an offence involving mens rea, it would normally be the intent and action of that individual who would act on behalf of the company. It would be more so, when the criminal act is that of conspiracy. However, at the same time, it is the cardinal principle of criminal jurisprudence that there is no vicarious liability unless the statute specifically provides so.
45. This very principle is elaborated in various other judgments. We have already taken note of Maharashtra State Electricity Distribution Co. Ltd. [Maharashtra State Electricity Distribution Co. Ltd. v. Datar Switchgear Ltd., (2010) 10 SCC 479 : (2011) 1 SCC (Cri) 68] 352 Spl.C. No.54/2014 and S.K. Alagh [S.K. Alagh v. State of U.P., (2008) 5 SCC 662 : (2008) 2 SCC (Cri) 686] . A few other judgments reiterating this principle are the following:
45.1.Jethsur Surangbhai v. State of Gujarat [1984 Supp SCC 207 : 1984 SCC (Cri) 474] :
(SCC pp. 210-11, para 9) "9. ... With due respect what the High Court seems to have missed is that in a case like this where there was serious defalcation of the properties of the Sangh, unless the prosecution proved that there was a close cohesion and collusion between all the accused which formed the subject-matter of a conspiracy, it would be difficult to prove the dual charges particularly against the appellant (A-1). The charge of conspiracy having failed, the most material and integral part of the prosecution story against the appellant disappears. The only ground on the basis of which the High Court has convicted him is that as he was the Chairman of the Managing Committee, he must be held to be vicariously liable for any order given or misappropriation committed by the other accused. The High Court, however, has not referred to the concept of vicarious liability but the findings of the High Court seem to indicate that this was the central 353 Spl.C. No.54/2014 idea in the mind of the High Court for convicting the appellant. In a criminal case of such a serious nature mens rea cannot be excluded and once the charge of conspiracy failed the onus lay on the prosecution to prove affirmatively that the appellant was directly and personally connected with acts or omissions pertaining to Items 2, 3 and 4. It is conceded by Mr Phadke that no such direct evidence is forthcoming and he tried to argue that as the appellant was Chairman of the Sangh and used to sign papers and approve various tenders, even as a matter of routine he should have acted with care and caution and his negligence would be a positive proof of his intention to commit the offence. We are however unable to agree with this somewhat broad statement of the law. In the absence of a charge of conspiracy the mere fact that the appellant happened to be the Chairman of the Committee would not make him criminally liable in a vicarious sense for Items 2 to 4. There is no evidence either direct or circumstantial to show that apart from approving the purchase of fertilisers he knew that the firms from which the fertilisers were purchased did not exist. Similar is the case with the other two items.
Indeed, if the Chairman was to be 354 Spl.C. No.54/2014 made liable then all members of the Committee viz. Tahsildar and other nominated members, would be equally liable because all of them participated in the deliberations of the meetings of the Committee, a conclusion which has not even been suggested by the prosecution. As Chairman of the Sangh the appellant had to deal with a large variety of matters and it would not be humanly possible for him to analyse and go into the details of every small matter in order to find out whether there has been any criminal breach of trust. In fact, the hero of the entire show seems to be A-3 who had so stage-
managed the drama as to shield his guilt and bring the appellant in the forefront. But that by itself would not be conclusive evidence against the appellant. There is nothing to show that A-3 had either directly or indirectly informed the appellant regarding the illegal purchase of fertilisers or the missing of the five oil engines which came to light much later during the course of the audit. Far from proving the intention the prosecution has failed to prove that the appellant had any knowledge of defalcation of Items 2 to 4. In fact, so far as Item 3 is concerned, even Mr Phadke 355 Spl.C. No.54/2014 conceded that there is no direct evidence to connect the appellant."
(emphasis supplied)
144. When the aforesaid principles are applied to the case on hand, it indicates that the materials in the charge sheet indicates of involvement of Accused No.3 Prem Chand Garg. Further the court has also considered the submission made by the learned Senior counsel in this regard. It is his submission that the evidence of PW.29 Susheel Kumar Valeecha cannot be relied upon and in fact, if the court accepts his evidence, then the evidence would point out his role rather than that of Accused No.3 Prem Chand Garg. Though the said submission seems to be fashionable, the court has appreciated the evidence of PW.25 Ashish Majumdhar in this regard. As already discussed supra, it has been rendered in the Chief examination that the Accused No.3 was worried about the quality of the material which was purchased by the company and also they were worried for the 356 Spl.C. No.54/2014 reason that due to advent of Mansoon, the Port was going to be closed by the end of May and further the materials were all seized by the Forest Authorities. Further he has narrated that at that time they had received the call from M/s SMSPL with an offer to purchase the same. In furtherance of the same, they had sent Mr. Ashish Majhumdhar and PW.29 Susheel Kumar Valeecha to negotiate and finally they had arrived at consensus. The evidence clearly indicates that the Accused No.3 being the Managing Director along with PW.29 Susheel Kumar Valeecha had arrived at a conclusion to sell the seized Iron ore. It is of common sense that the seized materials by the Forest Authorities cannot be subjected to sale unless the attachment/seizure order is modified. In the instant case the act of Accused No.3 Prem Chand Garg giving consent for sale of seized materials to A6 Sathish K Sail would clearly indicate the existence of criminal intention on their part. That apart they had 357 Spl.C. No.54/2014 ventured to file a writ Petition before the Hon'ble High Court suppressing the real facts, and have sought for release of the seized materials and later on the writ petition was dismissed for non prosecution after sale being effected and also being exported. The court has also considered the conduct of Accused No.3 during the course of trial. At the fag end of the trial, it was brought to the notice of the court that the company was under liquidation. If the company was under
Liquidation, then the Company could not have been represented by its Authorized officer. In fact, Vakalath was also filed on behalf of the Official Liquidator, who had later on withdrawn the same. It is relevant to note that the Liquidation proceedings were initiated and further it is astonishing to note that the very same Accused Person through his representative had filed a Writ Petition before the Hon'ble High court of Karnataka in W.P, 15187/2024 wherein the order of tendering Pardon was challenged for the second time 358 Spl.C. No.54/2014 before the Hon'ble High court. The Hon'ble High Court by its kind order dated 01/08/2024 was pleased to dismiss the same, holding that the order passed by the Hon'ble High Court in the earlier Criminal Petition No. 1152/2022 doesn't call for interference. It is curious to note that in the aforesaid writ Petition Accused No.3 had filed the same in his individual capacity but had not brought to the notice of the Liquidation proceedings which was allegedly initiated.
It is made clear that the liquidation proceedings are not applicable to the above case and the filing of the Writ Petition is only referred to indicate the conduct of the party wherein he would approach the court by suppressing facts and circumstances, which is not appreciable. The very conduct itself requires to be depreciated and nobody can be permitted to play fraud upon the process of law and that too before the Superior Constitutional Guardians. All the aforesaid evidence would only indicate with respect to casting 359 Spl.C. No.54/2014 aspersion on their evidence. Under the circumstances, the accused No.3 and 6 are to be made personally liable for commission of the offence.
EPILOGUE
145.Before it is to say 'usque ad finem' it would be appropriate to recall the manner in which the above case came in to lime light. At this juncture, it is required to note that the aforesaid case came to registered as per the kind intervention of the Hon'ble Apex Court which is considered as guardian and champion of Constitutional rights of the citizenry and also due to the active intervention of Samaja Parivarthana Samudaya which had filed a Special leave Petition before the Hon'ble Apex Court. It would not be out of context to place appreciation to the learned Senior Public Prosecutor Smt.K.S.Hema and her team who had rendered assistance in the above case in conducting the trial and also it would be worth to place appreciation to the manner in which 360 Spl.C. No.54/2014 the able assistance was rendered by the learned Senior Counsels Sri Hasmath Pasha, Sri Murthy D.Naik and Sri Kiran Javali who had co-operated for the sesquipedalian trial with their limpid examination and submissions with lot of perspicacity in the above case. It would be apposite to state the wordings of the Hon'ble Apex Court as narrated in (2014) 2 SCC 532 (Manohar Lal Sharma Vs. Principal Secretary) wherein it is stated as
36. In 350 B.C.E., Aristotle suggested in Politics that to protect the treasury from being defrauded, let all money be issued openly in front of the whole city, and let copies of the accounts be deposited in various wards. What Aristotle said centuries back may not be practicable today but for successful working of the democracy it is essential that public revenues are not defrauded and public servants do not indulge in bribery and corruption and if they do, the allegations of corruption are inquired into fairly, properly and promptly and those who are guilty are brought to book.
361 Spl.C. No.54/2014All the aforesaid act clearly points out towards the act committed by the accused persons and in fact it is a serious fraud played upon the Government ex- chequer which is successfully proved beyond rea- sonable doubt by the prosecution. Accordingly, I an- swer points No.2 to 6 for consideration in the Affir- mative.
146. Point No.7: From the discussion made herein above, it is clear that the accused No.1 Mahesh J.Biliye, Accused No.2 M/s Sri Lal Mahal Ltd., accused No.3 Premchand Garg, accused No.5 M/s.Shri Mallikarjuna Shipping Pvt Ltd., and accused No.6 Sri Satish Krishna Sail, are held to be guilty and I proceed to pass the following:
ORDER Acting under Sec.235(2) of Cr.P.C., the Accused No.1 Mahesh J.Biliye, Accused No.2 M/s Sri Lal Mahal Ltd., Accused No.3 Premchand Garg, accused No.5 M/s.Shri Mallikarjuna Shipping Pvt Ltd., and accused No.6 Sri Satish Krishna Sail are held guilty 362 Spl.C. No.54/2014 for the offences punishable under Sec.120- B, 420, 379 of IPC and further accused No.1 Mahesh J.Biliye is held guilty for committing offences punishable under Sec.409 r/w 120B of IPC and under Sec.13(2) r/w 13(1)
(c) and (d) of the Prevention of Corruption of Act, 1988.
The bail bonds executed by the accused persons and the surety bonds shall stand canceled.
(Dictated to the Stenographer Grade-I, part of the judgment dictated directly on computer, transcribed and typed by him, revised and corrected by me and then pronounced in the Open Court on this the 24th day of October, 2024) (SANTHOSH GAJANAN BHAT) LXXXI Addl. City Civil & Sessions Judge, Bengaluru City (CCH-82) (Special Court exclusively to deal with criminal cases related to former and elected MPs/ MLAs in the State of Karnataka) 363 Spl.C. No.54/2014 ORDER REGARDING QUANTUM OF SENTENCE
1. Heard the Learned Senior Public Prosecutor on behalf of CBI authorities and also the Learned Counsel for accused persons.
2. The Learned Senior Public Prosecutor has vehemently argued that in the instant case, the Accused No.1 Mahesh J Bileya who was the Port Conservator had entered into criminal Conspiracy with other accused persons and in furtherance of the same, he had conspired with them and had ensured that the seized Iron Ore at Belekeri Port came to be exported. It is also submitted by the Learned Senior Public Prosecutor that due to the act of the Accused persons loss has been caused to the Government exchequer. Further it is submitted by her that in the instant case the Accused Company with the connivance of Accused no.1 the then Port Conservator had exported Iron ore to an extent of Rs.89,62,140/- Further she has relied upon the judgment of the 364 Spl.C. No.54/2014 Hon'ble Apex court reported in (2003) 3 SCC 641 ( Ram Narayan Popli V C.B.I.) wherein it is held as:
380. The offences in these cases were not of the conventional or traditional type. The ultimate objective was to use public money in a carefully planned manner for personal use with no right to do it.
381. Funds of the public bodies were utilized as if they were private funds.
There was no legitimacy in the transactions. Huge funds running into hundreds of crores of MUL, a government company, were diverted and all the accused persons concerned A-1, A-3 and A-5 played dubious roles in these illegitimate transactions.
Their acts had serious repercussions on the economic system of the country, and the magnitude of financial impact involved in the present appeal is only the tip of the iceberg.
There were several connected cases and interestingly some of the prosecution witnesses in the present case are stated to be accused in those 365 Spl.C. No.54/2014 cases. That itself explains the thread of self-
perseverance running through their testimony.
Therefore, the need to pierce the facadial smokescreen to unravel the truth to lift the veil so that the apparent, which is not real, can be avoided. The proverbial red herrings are to be ignored, to find out the guilt of the accused.
382. The cause of the community deserves better treatment at the hands of the court in the discharge of its judicial functions.
The community or the State is not a persona non grata whose cause may be treated with disdain. The entire community is aggrieved if economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of the moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the community. A disregard for 366 Spl.C. No.54/2014 the interest of the community can be manifested only at the cost of forfeiting the trust and faith of the community in the system to administer justice in an even-handed manner without fear of criticism from the quarters which view white-collar crimes with a permissive eye, unmindful of the damage done to the national economy and national interest, as was aptly stated in State of Gujarat v. Mohanlal Jitamalji Porwal [(1987) 2 SCC 364 : 1987 SCC (Cri) 364 : AIR 1987 SC 1321] .
383. Unfortunately in the last few years, the country has seen an alarming rise in white-collar crimes which has affected the fibre of the country's economic structure. These cases are nothing but private gain at the cost of the public, and lead to economic disaster.
3. By relying upon the same, the Learned Senior Public Prosecutor has requested the court to award maximum punishment and also suitable fine 367 Spl.C. No.54/2014 so as to enumerate the loss caused to the Government Exchequer.
4. Per contra, the learned counsel for Accused No.1 Mahesh Bileya, Sri Vishwanath Sabarad has vehemently argued that the role of the Accused No.1 as could be discerned from the judgment is very minimal and the main allegations which is leveled against him is that he has aided and supported the other accused persons to commit the offence and there are no materials to indicate that he had made illegal or unlawful gain through the entire proceedings. Further he has submitted that the accused is aged about 65 years and he is suffering from various health ailments and has also undergone one year of imprisonment as under trial prisoner and hence he has requested to take a lenient view.
5. The court had also afforded an opportunity to Accused No.1 to make his submission 368 Spl.C. No.54/2014 with respect to quantum of sentence and he has submitted in par with the submission of his counsel.
6. The learned Senior counsel Sri Murthy D Nayak appearing on behalf of Sri V.N.N advocate for Accused No. 5 M/S SMSPL and Accused No.6 Sathish Krishna Sail has argued that minimum sentence may be imposed upon Accused No.6 who is also the sitting MLA and has submitted that he is suffering from various health ailments and also has requested the court to take into account that the accused is not having any criminal antecedent since he is having chronic Liver problem, he has requested the court to take a lenient view.
7. Further Accused No.6 Satish Krishna Sail has submitted to the court that he has two daughter of which one is still a student and his wife is also suffering from chronic health disorder and has submitted medical records in order to butters his 369 Spl.C. No.54/2014 contention. Further he has also requested to consider his benevolent act a people's representative.
8. The learned Senior Counsel Sri Kiran Javali on behalf of the learned counsel appearing for Accused No.2 M/S Sri Lal Mahal Ltd., being represented by its representative and accused No.3 Sri Premchand Garg, has submitted that the company is not blacklisted nor any criminal antecedents are attributed against the company. It is submitted that if fine were to be imposed on accused No.2 Company, the same may be imposed on accused No.3 also. He has also submitted that the condition of accused No.3 is not good and he requires assistance even for his daily activities as he has suffered fracture of spinal chord. Even otherwise, his health condition was in bad state and even the accused No.3 has reiterated the same. Hence they have requested the court to take lenient view and impose minimum sentence. 370 Spl.C. No.54/2014
9. Heard the parties and the accused have reiterated the submissions of their counsels and the point that requires to be considered is what would be the appropriate sentence that could be imposed on the accused persons.
10. Time and again, it has been reiterated by the Hon'ble Apex Court that in the matters pertaining to awarding sentence, the court should be cautious and sift and weigh the factors which are relevant for arriving at a just conclusion. It is also the cardinal principle of law that the nature and gravity of the crime is important than the criminality. The court at the time of passing an order on quantum of sentence has to look in to the materials in a different manner than that of the appreciating evidence for passing of judgment. The court is not against the criminal but against the criminal act and at the time of considering the quantum of sentence, the court is required to look in to the manner in which the crime is committed. 371 Spl.C. No.54/2014 There are no specific legislation with respect to passing of quantum of sentence. However, the parameter which is required to be considered is based on the case laws which are required to be looked in to. Apart from that the Hon'ble Apex Court has also held that at the time of passing of sentence, an exercise has to be made by the court by pointing the aggravating and mitigating factors and balance has to be secured in order to appreciate the appropriate sentence that could be imposed upon the parties. In the aforesaid authorities, the Hon'ble Apex Court has also held that the economic offences have to be considered as a class apart, which cannot be equated with any other ordinary criminal case. Though the allegations may not look severe, in terms of physical harm being made, at the same time, the matters pertaining to economic offences would have a deep socioeconomic effect on the society at large. By keeping the same in mind, I have bestowed my 372 Spl.C. No.54/2014 anxious reading to the submissions made by the Learned Counsel for the accused, Ld. Public Prosecutor and also the submissions of the accused persons. What could be the criteria for imposing just and appropriate sentence is laid down by the Hon'ble Apex court in the judgment rendered in (2022) 7 SCC 628 (Jaswinder Singh V Navjot Singh Sidhu) wherein it is held as:
25. We would like to deliberate a little more in detail on the necessity of maintaining a reasonable proportion between the seriousness of the crime and the punishment. While a disproportionately severe sentence ought not to be passed, simultaneously it also does not clothe the law courts to award a sentence which would be manifestly inadequate, having due regard to the nature of the offence, since an inadequate sentence would fail to produce a deterrent effect on the society at large.
Punishments are awarded not because of the fact that it has to be an eye for an eye 373 Spl.C. No.54/2014 or a tooth for a tooth, rather having its due impact on the society; while undue harshness is not required but inadequate punishment may lead to sufferance of the community at large. [Jai Kumar v. State of M.P., (1999) 5 SCC 1 : 1999 SCC (Cri) 638]
26. An important aspect to be kept in mind is that any undue sympathy to impose inadequate sentence would do more harm to justice system and undermine the public confidence in the efficacy of law. The society cannot long endure under serious threats and if the courts do not protect the injured, the injured would then resort to private vengeance and, therefore, it is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed.
[Sumer Singh v. Surajbhan Singh, (2014) 7 SCC 323 :
(2014) 3 SCC (Cri) 184] It has, thus, been observed that the punishment to be awarded for a crime must not be irrelevant but it 374 Spl.C. No.54/2014 should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated.
[Ravji v. State of Rajasthan, (1996) 2 SCC 175 : 1996 SCC (Cri) 225]
27. A three-Judge Bench of this Court in State of Karnataka v. Krishnappa [St ate of Karnataka v. Krishnappa, (2000) 4 SCC 75 : 2000 SCC (Cri) 755] while discussing the purpose of imposition of adequate sentence opined in para 18 that : (SCC p. 83) "18. ... Protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing an appropriate sentence."
28. The sentencing philosophy for an offence has a social goal that the sentence has to be based on the principle that the accused must realise that the crime committed by him has not only created a dent in his life but also a concavity in the social fabric. [Shyam Narain v. State (NCT of Delhi), (2013) 7 SCC 77 :
375 Spl.C. No.54/2014
(2013) 3 SCC (Cri) 1] While opportunity to reform has to be kept in mind, the principle of proportionality also has to be equally kept in mind.
29. Criminal jurisprudence with the passage of time has laid emphasis on victimology, which fundamentally is a perception of a trial from the viewpoint of the criminal as well as the victim. Both are viewed in the social context and, thus, victim's rights have to be equally protected [Rattiram v. State of M.P., (2012) 4 SCC 516: (2012) 2 SCC (Cri) 481] . It would be useful to rely on the observations of this Court in Gopal Singh v. State of Uttarakhand [Gopal Singh v. State of Uttarakhand, (2013) 7 SCC 545 : (2013) 3 SCC (Cri) 608] that just punishment is the collective cry of the society and while collective cry has to be kept uppermost in mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. Thus, 376 Spl.C. No.54/2014 the principle of just punishment is the bedrock of sentencing in respect of a criminal offence. No doubt there cannot be a straitjacket formula nor a solvable theory in mathematical exactitude.
An offender cannot be allowed to be treated with leniency solely on the ground of discretion vested in a court. Similarly, in Alister Anthony Pareira v. State of Maharashtra [Alister Anthony Pareira v. State of Maharashtra, (2012) 2 SCC 648 : (2012) 1 SCC (Civ) 848 :
(2012) 1 SCC (Cri) 953 : AIR 2012 SC 3802] , the twin objective of the sentencing policy to be kept in mind was emphasised as deterrence and correction and, thus, principle of proportionality in sentencing a convict were held to be well entrenched in the criminal jurisprudence.
30. We may also take note of the recent judgment of this Court decided by a three-Judge Bench on 18-4- 2022 in Jagjeet Singh v. Ashish Mishra [Jagjeet 377 Spl.C. No.54/2014 Singh v. Ashish Mishra, (2022) 9 SCC 321 : 2022 SCC OnLine SC 453] albeit, on the issue of bail. It emphasised the victim's right to be heard. What is relevant for us to note is that the victim being the de facto sufferer of a crime had no participation in the adjudicatory process. The current ethos of criminal justice dispensation to prevent and punish crime had surreptitiously turned its back on the victim. No doubt in the present case at every stage the victim has been heard and the present application is also by the victim. The near and dear ones whether as guardians or legal heirs are required to be treated as victims. It was, thus, observed in SCC para 22 as under:
"22. It cannot be gainsaid that the right of a victim under the amended CrPC are substantive, enforceable, and are another facet of human rights. The victim's right, therefore, cannot be termed or construed restrictively like a brutum fulmen. We reiterate that these rights are totally 378 Spl.C. No.54/2014 independent, incomparable, and are not accessory or auxiliary to those of the State under the CrPC. The presence of "State" in the proceedings, therefore, does not tantamount to according a hearing to a "victim" of the crime."
31. In the similar vein in Criminal Appeal No. 579 of 2022 titled State of Rajasthan v. Banwari Lal [State of Rajasthan v. Banwari Lal, (2022) 12 SCC 166 : 2022 SCC OnLine SC 428] , this Court has again frowned upon the tendency of courts to reduce the sentence to the period already undergone.
An earlier judgment of this Court in Soman v. State of Kerala [Soman v. State of Kerala, (2013) 11 SCC 382 :
(2012) 4 SCC (Cri) 1] was referred to, more specifically para 27, which reads as under : (Soman case [Soman v. State of Kerala, (2013) 11 SCC 382 :
(2012) 4 SCC (Cri) 1] , SCC p.
393) "27.1. Courts ought to base sentencing decisions on various different rationales 379 Spl.C. No.54/2014
-- most prominent amongst which would be proportionality and deterrence.
27.2. The question of consequences of criminal action can be relevant from both a proportionality and deterrence standpoint.
27.3. Insofar as proportionality is concerned, the sentence must be commensurate with the seriousness or gravity of the offence.
27.4. One of the factors relevant for judging seriousness of the offence is the consequences resulting from it.
27.5. Unintended consequences/harm may still be properly attributed to the offender if they were reasonably foreseeable. In case of illicit and underground manufacture of liquor, the chances of toxicity are so high that not only its manufacturer but the distributor and the retail vendor would know its likely risks to the consumer.
Hence, even though any 380 Spl.C. No.54/2014 harm to the consumer might not be directly intended, some aggravated culpability must attach if the consumer suffers some grievous hurt or dies as result of consuming the spurious liquor."
37. In a nutshell, the aspects of sentencing and victimology are reflected in the following ancient wisdom:
It means : The person dispensing justice as per Dharmashastra should prescribe a penance appropriate to the age, the time and strength of the sinner, the penance being such that he may not lose his life and yet he may be purified. A penance causing distress should not be prescribed.
11. The court has also taken into account of the submissions made by the learned counsel for accused that the accused persons are suffering from 381 Spl.C. No.54/2014 various health ailments and also they were appearing before the court for a long period of time. It is their contention that since they were made to under the sword of punishment for more than a decade, a lenient view may be taken. However, I have relied upon the judgment of the Hon'ble Apex Court with respect to considering the fact of imposing lesser sentence on the ground of long pendency of the matter. In this regard, the judgment of the Hon'ble Apex Court reported in (2003) 8 SCC 13 (State of M.P. Vs. Ghanshyam Singh) wherein it is held as follows:
10. The crucial question which needs to be decided is the proper sentence and merely because of lapse of time, whether the accused is to be waived from undergoing it. It is to be noted that the sentences prescribed for offences relatable to Section 304 Part I are imprisonment for life or up to a period of 10 years. It is true that no minimum sentence has been prescribed. The sentences can be compared with prescription of similar sentences and other provisions like Section 326 IPC 382 Spl.C. No.54/2014 and Section 307 IPC when hurt is caused. Section 304 Part I is a species of homicidal death.
It is statutorily described as culpable homicide though not amounting to murder as defined under IPC. Taking note of the purpose for which a sentence is imposed, it cannot be laid down as a rule of universal application that a long passage of time in all cases would justify minimal sentence. Long pendency of a matter by itself could not justify lesser sentence.
11. The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a cross-cultural conflict where living law must find an answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence.
Therefore, law as a cornerstone of the edifice of 383 Spl.C. No.54/2014 "order" should meet the challenges confronting the society. Friedman in his Law in Changing Society stated that, "State of criminal law continues to be -- as it should be -- a decisive reflection of social consciousness of society." Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. By deft modulation sentencing process has to be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. For instance, a murder committed due to deep-
seated mutual and personal rivalry may not call for penalty of death. But an organised crime or mass murder of innocent people would call for imposition of death sentence as deterrence.
In Mahesh v. State of M.P. [(1987) 3 SCC 80 : 1987 SCC (Cri) 379 : (1987) 2 SCR 710] 384 Spl.C. No.54/2014 this Court while refusing to reduce the death sentence observed thus : (SCC p. 82, para 6) It will be a mockery of justice to permit the accused to escape the extreme penalty of law when faced with such evidence and such cruel acts.
To give the lesser punishment for the accused would be to render the justicing system of the country suspect. The common man will lose faith in courts. In such cases, he understands and appreciates the language of deterrence more than the reformative jargon.
12. Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc. This position was illuminatingly stated by this Court in Sevaka Perumal v.
State of T.N. [(1991) 3 SCC 471 : 1991 SCC (Cri) 724 : AIR 1991 SC 1463] 385 Spl.C. No.54/2014
13. Criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion to the Judge in arriving at a sentence in each case, presumably to permit sentences that reflect more subtle considerations of culpability that are raised by the special facts of each case.
Judges, in essence, affirm that punishment ought always to fit the crime; yet in practice sentences are determined largely by other considerations. Sometimes it is the correctional needs of the perpetrator that are offered to justify a sentence, sometimes the desirability of keeping him out of circulation, and sometimes even the tragic results of his crime. Inevitably, these considerations cause a departure from just deserts as the basis of punishment and create cases of apparent injustice that are serious and widespread.
14. Proportion between crime and punishment is a goal respected in principle, and in spite of errant notions, it remains a strong influence in the determination of sentences. The practice of punishing all serious crimes 386 Spl.C. No.54/2014 with equal severity is now unknown in civilized societies, but such a radical departure from the principle of proportionality has disappeared from the law only in recent times. Even now for a single grave infraction drastic sentences are imposed.
Anything less than a penalty of greatest severity for any serious crime is thought then to be a measure of toleration that is unwarranted and unwise. But in fact, quite apart from those considerations that make punishment unjustifiable when it is out of proportion to the crime, uniformly disproportionate punishment has some very undesirable practical consequences.
12. In the aforesaid judgment the Hon'ble Apex Court has clearly held that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society do not endure such threats. Once again at the cost of repetition, it is to be recalled that the above case was a classic case 387 Spl.C. No.54/2014 wherein blatant violation of law and procedures were made by mighty and powerful people and only due to the kind intervention of the Hon'ble Apex Court the investigation was ordered and the magnanimity of the economic crime came to light. It would not be out of context to mention about the report furnished by the then Hon'ble Lokayukta in this regard wherein he had opined that the magnanimity of the crime committed was a serious threat to nations economic independence. At any stretch of imagination a minute deviation towards the integrity and economic independence of the Nation cannot be tolerated and it has to be severely punished so as to cause a deterrent. I am also fortified in this regard by the judgment rendered by the Hon'ble Apex Court in (2006) 10 SCC 673 (Siddarama and others Vs. State of Karnataka) wherein it is held as follows:-
9. Law regulates social interests, arbitrates conflicting claims and demands. Undoubtedly, there 388 Spl.C. No.54/2014 is a cross-cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Friedman in his Law in Changing Society stated that, "State of criminal law continues to be -- as it should be--a decisive reflection of social consciousness of society".
Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be.
The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, and all other attending circumstances are relevant facts which would enter into the area of consideration.
10. Undue sympathy to impose inadequate sentence would do more harm to the justice system, to undermine the 389 Spl.C. No.54/2014 public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed, etc. This position was illuminatingly stated by this Court in Sevaka Perumal v.
State of T.N. [(1991) 3 SCC 471 : 1991 SCC (Cri) 724 : AIR 1991 SC 1463]
12. Proportion between crime and punishment is a goal respected in principle, and in spite of errant notions, it remains a strong influence in the determination of sentences. The practice of punishing all serious crimes with equal severity is now unknown in civilised societies, but such a radical departure from the principle of proportionality has disappeared from the law only in recent times. Even now for a single grave infraction drastic sentences are imposed.
Anything less than a penalty of greatest severity for any serious crime is thought then to be a measure of toleration that is unwarranted and unwise. But in fact, quite apart from those 390 Spl.C. No.54/2014 considerations that make punishment unjustifiable when it is out of proportion to the crime, uniformly disproportionate punishment has some very undesirable practical consequences.
13. After giving due consideration to the facts and circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the court. Such act of balancing is indeed a difficult task. It has been very aptly indicated in Dennis Councle McGautha v.
State of California [402 US 183 : 28 L Ed 2d 711 (1971)] that no formula of a foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. In the absence of any foolproof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration 391 Spl.C. No.54/2014 of the gravity of crime, the discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably distinguished.
14. The object should be to protect the society and to deter the criminal in achieving the avowed object to law by imposing appropriate sentence. It is expected that the courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be.
15. Imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime e.g. where it relates to offences relating to narcotic drugs or psychotropic substances which have great impact not only on the health fabric but also on the social order and public interest, cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing meagre sentences or taking too sympathetic view merely on account of lapse of time or personal inconveniences in respect of 392 Spl.C. No.54/2014 such offences will be resultwise counterproductive in the long run and against societal interest which needs to be cared for and strengthened by a string of deterrence inbuilt in the sentencing system.
13. By relying upon the aforesaid authorities the Court is required to prepare a chart consisting of aggravating and mitigating circumstances. The following aggravating factors can be noticed in the instant case.
14. Aggravating Factors:
1. The accused No.1 Mahesh J.Biliye being the Port Conservator and accused Satish Krishna Sail being the elected representative of the people are required uphold the faith and public trust and accused No.1 has failed to discharge his duty and has entered into a criminal conspiracy with other accused persons to 393 Spl.C. No.54/2014 cheat and defraud the Government exchequer.
2. The accused No.1 who was entrusted with the domain of the public property had failed in discharge of his public duty and due to his act, the other accused persons had got themselves enriched unlawfully.
3. The accused persons in furtherance of criminal conspiracy had exported minerals belonging to the State which is the property of public at large and the act of exporting the same, causes huge loss to the people at large.
4. The act of accused persons erodes the faith and belief of general public in the financial transaction.
5. If any lenient view is to be taken, the act would further erode the faith and may 394 Spl.C. No.54/2014 lead to draw an inference that the economic offences would be dealt liberally.
15. Mitigating Factors:
a. The accused persons are not habitual offenders.
b. The accused persons could not have any criminal antecedents.
c. The accused persons had to take care of their family and they are suffering from various ailments.
d. The accused persons are having deep roots in the society and had enjoyed good reputation in the society.
16. By looking into the aforesaid aggravating and mitigating factors and also on consideration of the materials which has been produced before the Court, it indicates that the act of accused persons could be construed as a economic offence which leads to economy of the nation. Further, the maxim 395 Spl.C. No.54/2014 "Nullum crimen sine lege" which means, the principle of legality in the rule of construing criminal statute is to be in favour of citizens and also the approach towards the social welfare. The important aspect of socio-economic offence is to be emphasized with the gravity of the harm caused to the society and also the nature of the offences themselves. In many instances, the gravity of the offence cannot be easily deciphered and same requires to be considered in a manner which would indicate the mode of execution in secrecy by shrewd and snollygoster person with sophisticated means. Time and again, it has been held by the Hon'ble Apex Court that the cry of the victim is also to be appreciated at the time of imposing punishment. In the instant case, the society at large is to be considered as the main victim due to the fraudulent act of the accused person. I have bestowed my anxious reading to the judgment of the Hon'ble Apex Court reported in (2012) SCC 384 (State 396 Spl.C. No.54/2014 of Maharashtra through CBI Vs. Balakrishna Dattatreya Kumbar) wherein, Hon'ble Apex Court has held as follows:
"The aforesaid order is
therefore, certainly not
sustainable in law if examined in light of the aforementioned judgments of this Court.
Corruption is not only a punishable offence but also undermines human rights, indirectly violating them, and systematic corruption, is a human rights' violation in itself, as it leads to systematic economic crimes. Thus, in the aforesaid backdrop, the High Court should not have passed the said order of suspension of sentence in a case involving corruption. It was certainly not the case where damage if done, could not be undone as the employee/respondent if ultimately succeeds, could claim all consequential benefits. The submission made on behalf of the respondent, that this Court should not interfere with the impugned order at such a belated stage, has no merit for the reason that this Court, vide order dated 9.7.2009 has already stayed the operation of the said impugned order."
397 Spl.C. No.54/2014
17. When the said principles are applied to the facts of the case on hand, it indicates that accused persons entered into a criminal conspiracy which is punishable under Section 120-B of IPC to cheat and defraud the State. In the instant case, it is noticed that all the accused persons had conspired with each other and they had also filed writ petitions before the Hon'ble High Court of Karnataka and in many instances, they had also obtained interim order wherein the Hon'ble High Court by its kind order had directed for release of seized iron ore subject to producing valid documents. However, in many cases prior to obtaining of interim order, the export was being carried out of the seized materials and in some cases even though permission was not accorded by the Forest Authorities, without adhering to the rule of law, export was being made in cavalier manner, with serious disdain towards the rule of law. In my humble opinion, filing false petitions and making a false claim 398 Spl.C. No.54/2014 before the Superior Constitutional authorities would only add towards their unacceptable conduct. It is to be kept in mind of the apt quote of Lord Denning wherein it is stated as "Be ye never so high, the law is above you".
18. Though the accused persons at this juncture claim to be suffering from various ailments, the same will not be a mitigating factor. In this regard, the court has relied upon the judgment of Hon'ble Apex Court reported in AIR 1996 SC 361 (A. Wati Ao vs The State Of Manipur), wherein it has been held as follows:
"This takes us to the question of the sentence. A perusal of the trial court's judgment shows that the sentence of imprisonment till rising of the court was awarded because of : (1) the appellant being a senior IAS Officer and holding of different high posts, which showed that he is a very respectable person; (2) the appellant having a number of dependents; (3) the certainty of 399 Spl.C. No.54/2014 appellant's losing his job and requiring him to earn a living for himself and his family members; (4) the present being first offence committed by him; and (5) the spectre of the incident hanging on his head for about half a decade.
According to us, none of these factors (except the last, to some extent) make out a case for awarding sentence less than the minimum prescribed by the aforesaid Act - the same being imprisonment for one year. The fact that the appellant is a senior IAS Officer really requires a serious view of the matter to be taken, instead of soft dealing. The fact that he has a number of dependents and is going to lose his job are irrelevant considerations inasmuch as in almost every case a person found guilty would have dependents and if he be a public servant, he would lose his job. The present being the first offence is also an irrelevant consideration.
Though the delay has some relevance, but as in cases of the present nature, investigation itself takes time and then the trial is prolonged, because of the type of evidence to be adduced and number of the witnesses to be examined, we do not think that the fact of delay of about 400 Spl.C. No.54/2014 five years could have been a ground to award the sentence of imprisonment till rising of the court, which really makes a mockery of the whole exercise. We, however, think that the delay does require some reduction from the minimum prescribed; and on the facts of this case, ends of justice would be met, according to us, if at this length of time, pursuant to notice of enhancement issued by this Court, a sentence of imprisonment for six months is awarded."
19. In the above said judgment, Hon'ble Apex Court has held that the conviction of IAS Officer charged with misuse of office could not be let of leniently since it would give an wrong message to the society at large. Even in the instant case, the act of the accused persons are to be viewed seriously. Under the circumstances, the act of misconduct against accused No.1 would be viewed seriously. By considering the said aspect, it is crystal clear that the court cannot take lenient view towards the act committed by accused No.1 and it has to be strictly 401 Spl.C. No.54/2014 viewed as contemplated under Section 13(1)(d) R/w. Sec.13(2) of the Prevention of Corruption Act. The act of other accused persons in a way squarely makes an attempt to bleed the economic condition of the country and also the act of showing disregard to the orders of the Hon'ble High Court and filing false vexatious petitions under false premises would only aggravate the factors against them. Last but not the lease the court has also taken in to account of the submissions made by the learned counsel for accused No.1 wherein it has requested the court that a sympathetic view may be against him for the reason that he is only a retired employee, who cannot be equated in par with the might of the companies who have been involved in the offence. Be that as it may, but when the allegation of conspiracy is leveled against all the accused persons, there cannot be any room to segregate and fix the quantum individually. Hence, the court had accepted the loss which shown 402 Spl.C. No.54/2014 by the Investigating Officer in the Charge sheet. Before parting it would be appropriate to quote the apt wordings of the Center of Governance, which reminds ourselves about what the Mahabharath says:-
"Dharmo Rakshati Rakshitaha"
which means the law and morality sustain the world. Accordingly, I proceed to pass the following;
ORDER
The accused No.1 Sri.Mahesh
J.Biliye, accused No.2 M/s.Sri Lal Mahal Ltd., accused No.3 Sri Premchand Garg, accused No.5 M/s.Sri Mallikarjuna Shipping Pvt Ltd., accused No.6 Sri Satish Krishna Sail are hereby convicted for the offence under Section 120-B of IPC., and accused No.1, accused No.3 and 6 are hereby sentenced to undergo Rigorous Imprisonment for a period of FIVE years and imposed with a fine of Rs.20,000/- each (Rupees Twenty Thousand only) and in default of payment of fine, they shall 403 Spl.C. No.54/2014 undergo a Simple Imprisonment for a period of ONE month. (Accused No.2 and Accused No.5 are companies which is legal entity and hence, the representative cannot be sentenced for corporeal punishment) Further, accused No.2 and accused No.5 company are hereby sentenced to pay a fine of Rs.20,000/- each.
The accused No.1 Sri.Mahesh J.Biliye, accused No.2 M/s.Sri Lal Mahal Ltd., accused No.3 Sri Premchand Garg, accused No.5 M/s.Sri Mallikarjuna Shipping Pvt Ltd., accused No.6 Sri Satish Krishna Sail are hereby convicted for the offence punishable under Section 420 of IPC and accused No.1, 3 and 6 are sentenced to undergo a Rigorous Imprisonment for a period of Seven years and imposed with a fine of Rs.90,00,000/- (Rupees Ninety Lakhs Only) to be paid jointly with accused No.2 and 5 Companies and in default of payment of fine by accused No.1, 3 and 6 they shall undergo a Simple Imprisonment for a 404 Spl.C. No.54/2014 period of ONE year. (Accused No.2 and Accused No.5 are companies which is legal entity and hence, the representative cannot be sentenced for corporeal punishment). However, accused No.2 and 5 Company shall be liable to pay fine jointly and severally with other accused persons for the aforesaid offence.
The accused No.1 Sri. Mahesh J.Biliye is hereby convicted for the offence punishable under Section 13(1)(c) & (d) R/w. Sec.13(2) of Prevention of Corruption Act and sentenced to undergo Rigorous Imprisonment for a period of THREE years and with a fine of Rs.50,000/- (Rupees Fifty Thousand only) and in default of payment of fine, he shall undergo Simple Imprisonment for a period of ONE year.
The accused No.1 Mahesh J.Biliye is hereby convicted for the offence punishable under Section 409 of IPC and sentenced to undergo Rigorous Imprisonment for a period of SEVEN years and fine of Rs.50,000/- each (Rupees Fifty Thousand only) and in default of payment 405 Spl.C. No.54/2014 of fine, he is sentenced to undergo Simple Imprisonment for a period of SIX months.
The accused No.1 Sri.Mahesh J.Biliye, accused No.2 M/s.Sri Lal Mahal Ltd., accused No.3 Sri Premchand Garg, accused No.5 M/s.Sri Mallikarjuna Shipping Pvt Ltd., accused No.6 Sri Satish Krishna Sail are hereby convicted for the offence punishable under Section 379 r/w 120B of IPC and accused No.1,3 and 6 are sentenced to undergo a Rigorous Imprisonment for a period of Three years and imposed with a fine of Rs.20,000/- each (Rupees Twenty Thousand Only) and in default of payment of fine, they shall undergo a Simple Imprisonment for a period of ONE year. (Accused No.2 and Accused No.5 are companies which is legal entity and hence, the representative cannot be sentenced for corporeal punishment). However, accused No.2 and 4 Company shall be liable to pay fine above mentioned sum of Rs.20,000/- each.
The sentences ordered shall run concurrently and accused Nos.1,3 and 6 406 Spl.C. No.54/2014 shall be entitled for the period of set off as contemplated under Section 428 of Cr.P.C., for the period of detention they have already undergone, if any as Under Trial Prisoners in the above case.
Acting under Section 357(A) of Cr.P.C., suitable compensation requires to be ordered to the victim i.e., the State and hence, the entire amount shall be ordered to be forfeited to the State.
Office is hereby directed to furnish the copy of the Judgments to the accused Nos.1 to 3, 5 and 6 forthwith.
The bail bonds and surety bonds executed by the accused Nos.1, 3 and 6 shall stand cancelled.
(Dictated to Stenographer Grade-I, transcribed by him, revised and corrected by me and then pronounced in open court on 26th day of October, 2024) (SANTHOSH GAJANAN BHAT) LXXXI Addl. City Civil & Sessions Judge, Bengaluru City (CCH-82) (Special Court exclusively to deal with criminal cases related to former and elected MPs/ MLAs in the State of Karnataka) 407 Spl.C. No.54/2014 ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PROSECUTION PW1 Parvathi.N. PW2 Deepak A.W. PW3 Mohan Sukru Naik PW4 Ashok Ramachandra Naik PW5 Deepak A.Waigankar PW6 R.Anand PW7 Jagadish Thandel PW8 N.Y.Sagar PW9 Gouse Ali PW10 Vinod Kumar Pandey PW11 Nagesh M.Gaonkar PW12 Suresh D.Shetty PW13 Yogesh Anand Shetty PW14 Nagesh Bommaiah Gunaga PW15 Anand L.Idurkar PW16 M.D.Thodurkar PW17 Krishna Narayan Kelaskar PW18 Vishal Gopal Harikant PW19 Gokul.R PW20 Yogesh S.Pal PW21 Venkatesh H.R. PW22 Arun Atmaram Pawar PW23 Siddalinga Swamy Viraktamath PW24 M.Ganesh PW25 Ashish Mujumdar PW26 B.S.Muddumahadevaiah PW27 Shivanand H.Chalavadi PW28 Ravishankar PW29 Susheel Kumar Valecha PW30 Chandrappa PW31 Mohan PW32 G.N.Naik PW33 Takath Singh Pw34 Abhay A. Kocharekar 408 Spl.C. No.54/2014 PW35 Rajashekar.T. PW36 Biswajit LIST OF DOCUMENTS MARKED ON BEHALF OF PROSECUTION Ex.P.1 Letter dated 22/11/2012 Ex.P.2 Lease agreement dated 06/03/2006 Ex.P.3 Lease agreement dated 25/08/2009 Ex.P.4 Lease agreement dated 29/04/2010 Ex.P.5 Letter dt 26/4/10 Ex P.5(A) C/c of letter dt 26/4/10 Ex.P.6 Letter dt 24/4/10 Ex P.6(A) C/c of letter dt 24/4/10 Ex P.7 Letter dt. 26/4/10 Ex P.7(A) C/c of letter dt 26/4/10 Ex P.8 Mahazar dt 20/3/10 Ex P.8(a) Signature of PW-3 Ex P.8(b) Signature of PW-4 Ex P.9 Mahazar dt 29/3/10 Ex P.9(a) Signature of PW-5 Ex. P.10 Mahazar 29/3/10 Ex P.10(a) Signature of PW-5 Ex P.11 Seizure report dt 20/3/10 Ex P.12 Mahazar dated 07/08/2010 Ex P.13 Letter dt 26/4/10 to Port Conservator 409 Spl.C. No.54/2014 Ex P.14 Letter dt 28/4/10 Ex P.15 Notification dated 26/03/2003 Ex P.16 Department order dt 4/4/03 Ex P.17 Department order 29/5/03 Ex P.18 Seizure memo dt 27/5/03 Ex P.19 Letter dated 16/08/2010 Ex P.20 Letter dated 15/10/2012 Ex P.21 Annexure 'B' to the letter dt 15/10/12 of Superintendent of Customs Belekeri Ex P.21(A) Letter dated 24/3/10 Ex P.21(B) Letter dated 22/3/10 Ex P.21( C) Letter dated 25/3/10 Ex P.21(D) Letter dated 25/3/10 Ex P.21(E) Letter dated 29/3/10 Ex P.21(F) Letter dated 28/4/10 to M/s SMSPL Ltd., Ex P.21(G) Letter dated 28/4/10 to Assistant conservator Ex P.22 Shipping bills from 20/03/2010 to 31/05/2010 Ex P.23 Annexure 'D' dt 15/10/12 Ex P.24 Annexure 'E' Ex P.25 Letter dt 20/3/10 Ex P.26 Letter dt 20/3/10 to Port Conservator Ex P.27 Seizure memo dt 11/10/12 Ex P.28 Letter dt 15/4/10 Ex P.29 Letter dt 16/4/10 410 Spl.C. No.54/2014 Ex P.29(A) Shree Mallikarjuna Shipping Letter dt 16/4/10 Ex P.29(B) M/s Adani Enterprises Ltd dt 15/4/10 Ex P.30 Letter dt 30/3/10 to Port Officer Ex P.30(B) Proceedings held on 13/4/10 Ex P.30(C ) Letter dt 3/3/10 Ex P.30(D) Letter dt 3/3/10 Ex P.30(E) Circular dt 30/3/10 Ex P.31 M/s Adani Enterprises ltd letter dt 3/5/2010 to Port Conservator Ex P.32 M/s SMSPL letter dt 6/5/10 to Port Conservator Ex P.33 Letter dt 6/5/10 to I.O. Assistant Conservator of Forest Ex P.34 Letter of Salgonkar Mining Pvt Ltd., Ex P.35 Letter dt 6/5/10 Ex P.36 Letter dt 20/3/10 to Port Conservator Ex P.37 Letter dt 24/3/10 to Deputy Conservator Ex P.38 Letter dt 24/3/10 by Port Conservator Ex P.39 Letter dt 25/3/10 by Port Conservator Ex P.40 Letter dt 29/3/10 by Range Forest Officer Ex P.41 Letter dt 30/3/10 to Superintendent of Customs Ex P.42 Letter dt 29/3/10 by Port Conservator Ex P.43 Letter M/s Adani Enterprises Ltd dt 7/6/10 Ex P.44 Letter of M/s Adani Enterprises Ltd., dt 11/6/10 Ex P.45 Letter of M/s Rajmahal Silks letter dt 15/6/10 Ex P.46 M/S SMSPL letter dt 11/6/10 Ex P.47 M/s Salgoankar Mining Pvt Ltd., letter dt 411 Spl.C. No.54/2014 11/6/10 Ex P.48 Attendance Book Ex P.49 Shipping Bill Ex P.50 Shipping Bill Ex P.51 Export application dt 3/7/10 Ex P.52 Clearance dt 31/5/10 given by Port Officer Ex P.53 Office of the Assistant Commissioner of Customs, Karwar dt 29/3/10 Ex P.54 Office of the Superintendent of Customs dt 29/3/10 Ex P.55 Letter dt 25/3/10 Ex P.56 Letter dated 27/3/10 Ex P.57 Office of the Superintendent of Customs dt 21/6/10 Ex P.58 Port clearance Ex P.58(A) Port Clearance Ex P.59 Invoice dt 24/5/10 Ex P.60 Form No.1 Boat Note Ex P.61 Boat Note pertaining to Shipping bill No.169/2010 Ex P.62 Letter dt 3/8/13 to Addl. Superintendent of P Ex P.62(a) Signature of PW-16 Ex P.62(A) C/c of letter dt 3/8/13 to Addl. Superintendent of Police Ex P.63 Letter dt 29/3/10 by Port Officer, Karwar Ex P.64 M/s SMSPL letter dt 30/10/13 Ex P.64(A) True copy of Ex P-64 Ex P.65 M/s SMSPL letter dt 28/12/11 412 Spl.C. No.54/2014 Ex P.65(A) Inward-outward stock of M/s Lal Mahal Ltd., Ex P.66 M/s SMSPL letter dt 28/12/11 Ex P.66(A) Details of vessel wise Iron Ore exporter from 20/3/10 to 31/5/10 Ex P.67 M/s SMSPL letter dt 26/10/03 Ex P.68 M/s SMSPL letter dt 2/8/10 Ex P.69 Contract for shipment of Iron Ore through Belekeri Port Ex P.69(A) C/c of Contract for shipment of Iron Ore through Belekeri Port Ex P.70 Contract sale & purchase of Iron Ore Ex P.70(A) C/c of Contract sale & purchase of Iron Ore Ex P.71 Invoice dt 29/4/10 Ex P.71(A) C/c of Invoice dt 29/4/10 Ex P.72 Contract shipment of Iron Ore through Belekeri Port Ex P.73 Form No.1 details about each lorry load which stacked as on 20/3/10 Ex P.74 Form No.2 vessel wise Iron Ore export details of exporter from 20/3/10 to 31/5/10 Ex P.75 Contact between M/s SMSPL and M/s MSH Ltd., dated 12/5/10 Ex P.76 Letter dt 26/4/10 to SMSPL Ex P.77 Letter dt 29/4/10 by M/s SMSPL Ex P.78 Office of the Superintendent of Customs House, Belekeri dt 25/3/10 Ex P.79 Letter by M/s SMSPL dt 6/5/10 Ex P.80 FIR dt 15/3/10 Ex P.80(A) Mahazar dated 15.03.2010 Ex P.81 Letter from Range Forest Officer, Ankola dt 18/3/10 Ex P.82 Letter dt 18/3/10 413 Spl.C. No.54/2014 Ex P.83 FIR dt 8/6/10 Ex P.84 Letter dt 7/6/10 by IO & Assistant Conservator of Forest Ankola Ex P.85 Complaint dated 8/6/10 Ex P.86 Letter dt 6/4/10 from Deputy Conservator of Forest Ex P.87 Attested copy of W.P. No. 15744/16 Ex P.88 Seizure memo dt 8/7/13 Ex P.89 C/c of ledger account Ex P.90 Export statement of cargo shipment Ex P.90(A) C/c of Export Statement of Cargo Shipment Ex P.90(B) Relevant portion sub marked in Ex P-90.
Ex P.91 Statement of Account
Ex P.92 Export clearance of M/s SMSPL Cargolinks dt
7/6/10
Ex P.93 Letter to M/s Adani Enterprises, SMSPL, Rajmal
Silks Etc dt 3/4/10
Ex P.94 CBI seizure memo dt 27/8/13
Ex P.95 Mahazar dt 3/7/10
Ex P.96 Letter dt 2/6/10 to the Port Officer, Karwar
Ex P.97 Proceedings of the Govt. of Karnataka
Ex P.97(a) Signature of PW-23
Ex P.98 Job Chart (marked through PW-24)
Ex P.98 Seizure memo dated 21/09/2013 (marked
through PW-25)
Ex P.98(a) Signature of PW-25
Ex P.99 Letter dated 20/10/2010 by M/s SMSPL
Ex P.100 Certified copy of an extract from the minutes
Shri LAL Mahal Ltd.,
414 Spl.C. No.54/2014
Ex P.101 Mahazar dt 3/7/10
Ex P.102 Mahazar dt 10/8/10
Ex P.103 Letter to Lal Mahal Ltd., dt 29/6/2010
Ex P.104 Letter to M/s SMSPL dt 29/6/10
Ex P.105 Letter to the Registrar of Companies dt
31/12/10
Ex P.106 Report of seizing of property dated 03/06/2010
Ex P.107 Documents pertaining to shipping bill
Ex P.108 Mahazar dated 29.07.2012
Ex P.108(a) Signature of PW-16 Ex P.108(A) C/c of Ex P-108 Ex P.109 DMG Permit Ex P.110 Letter dated 30/04/2010 Ex P.111 M/s Lal Mahal Ltd letter dt 23/7/13 Ex P.112 Letter dt 18/6/11, 17/2/11, 25/5/11 & 18/6/11 to Registrar of companies Ex P.113 Document pertaining to M/s Sri. Lal Mahal Ltd., Ex P.114 Letter dt 2/6/11 to General Manager, Axis Bank along with documents Ex P.115 Documents received from the Port authorities Ex P.116 Mahazar dt 2/6/10 Ex P.117 Letter dt 27/5/10 Ex P.118 Memorandum of Articles of Association Ex P.119 Production memo dt 22/8/13 Ex P.120 Seizure memo dt 17/8/13 Ex P.121 Appointment letter as shipping executive of PW-
34.
415 Spl.C. No.54/2014
Ex P.122 Axis Bank Transaction details
Ex P.123 Letter by Saraswat Bank Ltd to I.O. CBI
Ex P.124 Account opening form
Ex P.125 Seizure memo dt 29/1/14
Ex P.126 Panchanama dt 10/8/10
Ex P.127 Proceedings drawn in RC 17(A)/12 dt 15/3/14
Ex P.127(a) Signature of PW-35 Ex P.128 Report submitted by CFSL, Hyderabad dated 08.02.2018 Ex P.129 FIR dated 13.09.2012 Ex P.130 C/c of W.P.562/2009 Ex P.131 C/c of reports Ex P.132 Official orders deputing Port Staffs Ex P.133 Letter dated 28.12.2012 along with charge sheet filed by CID authorities Ex P.134 Seizure memo dated 31.05.2013 Ex P.135 Letter dated 05.10.2012 Ex P.136 Collected documents from Rajesh G Pawar Ex P.137 Collected documents from Superintendent of Customs Ex P.138 Letter dated 03.10.2012 to CID, Bengaluru Ex P.139 Letter dated 15.11.2013 to Marcons Shipping Pvt. Ltd., Ex P.140 Letter dated 30.03.2010 to Port Conservator Ex P.141 Production memo dated 06.09.2013 Ex P.142 Letter dated 04.09.2013 Ex P.143 Letter dated 09.12.2013 issued by Axis Bank Ex P.144 Letter dated 20.09.2013 by M/s Shree Lal 416 Spl.C. No.54/2014 Mahal Ltd., Ex P.145 Seizure memo dated 23.09.2010 Ex P.146 Letter dated 11.10.2013 Ex P.147 Memorandum of Association and Article along with ROC documents Ex P.148 Documents furnished by M/s SMSPL Ex P.149 True copy of the documents issued by Cargo Links Ex P.150 Appointment letter of Krishna Kelaskar Ex P.151 Letter dated 02.08.2010 Ex P.152 Letter dated 26.04.2010 Ex P.153 Letter dated 12.01.2011 issued by M/s SMSPL LIST OF WITNESSES EXAMINED ON BEHALF OF ACCUSED: NIL LIST OF WITNESSES DOCUMENTS MARKED ON BEHALF OF ACCUSED Ex.D.1 Witness Statement of P.W.3 LIST OF MATERIAL OBJECTS :
M.O. 1 Hard Disk
M.O. 2 Hard Disk
M.O. 3 Hard Disk
M.O. 4 Hard Disk
(SANTHOSH GAJANAN BHAT)
LXXXI Addl. City Civil & Sessions Judge, Bengaluru City (CCH-82) (Special Court exclusively to deal with criminal cases related to former and elected MPs/ MLAs in the State of Karnataka) Digitally signed by SANTHOSHGAJANANABHAT SANTHOSHGAJANANABHAT Date: 2024.10.29 12:05:47 +0530