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4.5.15 He denied the suggestion that CBI conducted investigation of RC No.4(E)/2003 in the manner of investigation of a DA case which was not at all the subject matter of said RC. He also denied that the investigation was misdirected in the said matter at the behest of Sanjay Awasthi­SP CBI. When it was asked to him why this complaint was forwarded by him to his own SP and kept in his branch although generally such DA complaints are referred to Anti Corruption Unit (ACU) of CBI, to this he replied that it was not always necessary that all DA/PC Act cases to be dealt with by ACU branch only. When it was suggested to him that this case was thereafter transferred to ACU­III, when Senior Officers came to know that it was intentionally kept in his branch, to this he stated that it is not in his knowledge as to why this case was registered in EOU­VII branch and then transferred to ACU­III, but volunteered that there was no bar on registration of DA cases in EOW, for example case of Sh.Ashok Aggarwal. He denied the suggestion that he had knowledge about complaints dated 09.03.01 and 01.05.01 made by accused Virendra Singh against Sh.Sanjay Awasthi when he was working as Assistant Director under him, to the Senior Officers of Enforcement Directorate and the copy of the same was handed over to him by accused Virendra Singh. 4.5.16 Ld. defence counsel has submitted that Sh.Sanjay Awasthi, IRS was earlier working under accused Virendra Singh in Directorate of Enforcement as Assistant Director, against whom accused Virendra Singh as his superior i.e Dy.Director had already made two complaints to the Directorate of Enforcement for initiating disciplinary proceedings. Thereafter when Sh.Sanjay Awasthi managed his deputation to CBI as SP, he started wrecking vengeance by getting registered a false case against him which was first registered as Preliminary Enquiry (PE) on source information, as aforesaid, which was investigated by Mr.K.C.Joshi and on the basis of which the FIR bearing RC No.4(E)/2003 was registered but CBI has subsequently filed closure report which was ultimately accepted by Special Judge, CBI, Patiala House Court. He has submitted that the search warrant obtained by CBI in RC No.4(E)/2003 was endorsed to an Inspector by Sh.Ramnish, the then DSP, who was IO in RC No.4(E) against Virendra Singh, but it was deliberately got executed by Mr.Awasthi through Sh.K.C.Joshi, Addl.SP, who had made preliminary enquiry of earlier case against Virendra Singh, only in order to slap a false DA case (present RC) under the garb of executing search warrant of earlier case in which ultimately the CBI had to file closure report. 4.5.17 The ld.defence counsel has submitted that after joining CBI on deputation, Sh.Awasthi had also got slapped a DA case against his another colleague Mr.Deepak Chauhan, who was working as Asstt.Enforcement Officer in E.D., who had challenged the said RC No.SI 8/2001/E0006 dated 11.09.01 before Hon'ble High Court vide Crl.W.P.No.991/02 on the ground of malafide of Sh.Awasthi, which petition was subsequently dismissed as not pressed, vide order dated 31.07.03, when CBI informed to the Hon'ble High Court that a closure report has been filed in the said RC.

4.5.18 He has submitted that even the requisite permission under Section 6A of Delhi Special Police Establishment Act, 1946 (in short DSPE Act) was not obtained by the CBI although the said amendment to DSPE Act had already came into force w.e.f. 11.09.13 i.e. before the registration of RC of this case i.e. 14.10.03 on the basis of complaint dated 13.10.03 made by Sh.Ramnish. He has submitted that subsequently investigation of this DA case was handed over to Sh.K C Joshi, Addl.SP, who was the same officer who had conducted PE of previous case against accused/Virendra Singh. The instant RC 5(E)/2003 was registered without any PE and Sh.K C Joshi initiated investigation without obtaining the mandatory permission as required under Section 6A of DSPE Act. He has thus submitted that illegal inventory was prepared by K.C.Joshi in connivance with then SP, CBI Sh.Sanjay Awasthi who had grudge with his ex boss accused/Virendra Singh as Virendra Singh had made two corruption complaints against him to the ED when Sh.Sanjay Awasthi was posted under him as Assistant Director. He has drawn attention of the court to an application filed by him u/s 91 Cr.PC dated 29.07.11 for producing order u/s 6A of DSPE Act, if any, by CBI and in reply thereof CBI submitted that since RC No.5(E) was off­shoot of RC No.4(E) registered on 02.07.03 i.e the date before coming into force of Sec.6A., therefore, there was no requirement of any such permission. In my view, this DA case is entirely different and independent from previous RC 4(E) and hence it can not be called as an off­shoot of the RC. In my opinion, CBI has violated the mandatory provisions of Sec.6A of DSPE Act which could entitle accused to seek relief of quashing case against him at the initial stage, but after trial, it would be hyper technical to reject the case of CBI on this short ground. 4.5.19 He has relied upon a Judgment of Hon'ble Supreme Court in Babubhai Vs. State of Gujarat & Others 2011(1) ACR 496 (SC) wherein Hon'ble Supreme Court has observed that the concept of fair investigation and fair trial are concomitant to preservation of fundamental right of accused under Article 21 of Constitution of India.

4.5.29 The evidentiary value and sanctity is attached to observation memo in DA cases only because the same is prepared with the consent of the public servant and/or his wife but in this case wife of accused Virendra Singh, namely, accused Smt.Rashmi Singh was admittedly bed ridden and not in position to speak or tell the value, year and mode of acquisition of any articles available in their house and accused Virendra Singh was admittedly at Goa i.e. place of his posting. Therefore, it cannot be said that the value of the items and year of acquisition as mentioned in observation memo Ex.PW.29/B is as per the consent of accused. 4.5.30 Further, it is admitted case that on very next day i.e. on 09.07.03 the CBI again conducted a search at the house of accused Virendra, on which date, he was available there but on that date the inventory prepared as per the observation memo Ex.PW. 29/B was not got confirmed from him because only he would have been in a position to tell the mode, year of acquisition and value of the items found at his residence on the date of search. Although, there is no credible evidence to the effect that it was Sh.Jagpal Singh, who had told CBI about the price and the year of acquisition of various items as per Ex.PW.29/B but even if it is presumed that CBI team had noted down these informations as per information supplied to it by Sh.Jagpal Singh, the same cannot be taken as correct as admittedly Sh.Jagpal Singh was residing separately from accused Virendra Singh in different locality and he cannot be presumed to have the information about various items as mentioned in observation memo.

8.11.1 ­ Item No.17­ Rs.6,79,821/­ has been taken as house hold expenditure of accused Virendra Singh calculated on the basis of rd 1/3 of his gross salary of Rs.20,39,464/­. This entry has been seriously disputed by the accused persons. It is worthwhile to note that no witness has been examined by the prosecution in respect of expenditure of this much amount or estimation thereof and , therefore, there was no occasion for the court to put to the accused this assumption as an incriminating fact u/s 313 of Cr.PC. 8.11.2 Ld. Public Prosecutor has relied upon an observation of Hon'ble Supreme Court in Sajjan Singh Vs. State of Punjab AIR 1964 SC 464 to urge that it is settled position of law to take 1/3 of rd the income of accused as house hold expenditure. He has submitted that it is as per the normal practice followed by CBI in rd every DA case that 1/3 of the salary earned by the accused public servant during the check period, is taken as his house hold expenditure and accordingly, the CBI has taken Rs.6,79,821/­ as rd house hold expenditure being 1/3 of gross salary of accused Virendra Singh which comes to Rs.20,39,464/­. He has submitted that even if it is conceded that one­third of the net pay and allowances received by accused Virendra Singh (i.e. Rs. 15,80,208/­) has to be taken as basis for calculating the figure, it would come to Rs.5,26,736/­. Ld.public prosecutor has thus submitted that at the minimum, such expenditure could be rd considered as 1/3 of net salary which comes to Rs.5,26,736/­. He has submitted that one cannot live without spending anything on his food and clothing, etc. 8.11.3 On the other hand, Ld. defence counsel has submitted that this figure of Rs.5,26,736/­ cannot be taken as amount actually spent by accused on their household expenses for the reasons that it is the admitted case of prosecution that both accused persons hail from agrarian background and they have the benefit of availing cereals, pulses, edible oil and vegetables from their village. He has drawn attention of the court to Ex.PW.29/B (D.86) which is observation memo in which at Serial No.75 'misc. grocery items, ghee, oils etc. have been estimated as Rs.3,000/­ and at item No. 229 it is mentioned that one (big size) drum, full of wheat, was also found. He has submitted that no house hold in the metro cities keeps wheat or flour more than 5­10 kgs and only the persons having the agricultural background store a big drum full of wheat, which shows that the family of accused was supplied the wheat from their village.