A.K. SIKRI, J. -
(1.) Two petitions filed under Section 482 of the Code of Criminal Procedure and two bail applications seeking anticipatory bail filed under Section 438 of the Code of Criminal Procedure arise out of the same FIR No.28 of 2006. The matter is at investigation stage though investigation is virtually complete and qua some of the accused persons, charge-sheet has also been filed during the pendency of these proceedings. Two of the accused persons, namely, Ram Niwas Tyagi and Sham Sunder want these proceedings to be quashed and they have also filed applications for anticipatory bail. Before coming to the pleas raised in support of their aforesaid petitions for quashing and grant of bail, it would be necessary to understand the case of the prosecution as per the FIR.
(2.) The facts alleged by the prosecution, in this behalf, are as under: `It is submitted that source information was received by Sh. Sukhbir Singh Inspr., Anti Corruption Branch, GNCT of Delhi on 25.03.2006, that the evasion of excise duty was being done by the attorney of a liquor bond at 56, Rama Road, Moti Nagar, New Delhi in connivance with the officials of Excise Deptt., GNCT of Delhi. The surveillance teams were mounted on 26.03.2006 at the warehouse of 5 distilleries situated at 56 Rama Road, Moti Nagar, New Delhi and for following the tempos taking liquor from warehouse to liquor shops. The surveillance teams observed that at about 11.40 A.M. one truck bearing No. MP-16A-9705 entered at 56 Rama Road, Moti Nagar, Delhi and cartons of liquor were unloaded from this truck by laborers. This truck left the premises at about 12.52 PM. At about 1 PM, another truck bearing No. MP-16H-0021 entered the above premises and cartons of liquor were unloaded from it in the said premises. This truck left at about 2.05 PM from there. It was also observed that 8 Nos. four wheeler tempos also entered the said premises between 9.45 AM to 3.30 PM and after loading the cartons of liquor, the tempos left the premises. The movement regarding entry/exit and loading/unloading of trucks/tempos were videographed from a safe distance secretly in the presence of punch witness, Sh. Suresh Chand, Craft Instructor, ITI Pus, Delhi. Thus, it is obvious that two truckloads of liquor had come to liquor warehouse 56 Rama Road, Moti Nagar, New Delhi and liquor had been sent out in 8 tempos to various shops in Delhi on 26.03.2006. One of the tempo No. DL-1L C-9559 loaded with liquor left 56 Rama Road, New Delhi at 10.43 AM and delivered 6 cartons liquor of Glasgow Distilleries to liquor shop of Delhi Tourism and Transportation Development Corporation, East Park Road, Delhi and 45 cartons of the said distilleries to the shop of M/s Kamaljeet Singh, holder L-52, liquor, license, at IX/1529 Main Market, Gandhi Market, Gandhi Nagar, Delhi, as observed by one of the surveillance teams, in the presence of the punch witness. On verification of records of the distilleries godown at 56 Rama Road, Moti Nagar, Delhi on 27-03-2006 in presence of Sh. K.K. Bhalla, Distt. Excise Officer, it was found that on 26-03-2006 only one truck No. MP-16A-9705 was entered in the stock register of M/s Glassgow Distilleries Ltd. having given the delivery of 610 cartons of liquor, whereas, there was no entry of 609 cartons of liquor delivered by truck No. MP 16-H-0021. Moreover only 6 tempos were shown to have entered the godown and transported the liquor on T.P. on 26.03.2006 from the warehouse. Thus unloading of one truckload of liquor in the bond and loading of liquor into two tempos from the bond to various vends has not been recorded in the record of the bond. When the stock of this liquor shop at IX/1529 Main Market Gandhi Nagar, Delhi was checked on 27.03.2006 in presence of Sh. K.K. Bhalla, Distt. Excise Officer, the delivery of liquor given by tempo No. DL-1L C-9559 was not found entered in stock register. It was found that the T.P. vide which the liquor was sent from the bond on 26.03.2006 by tempo No. 9559 does not include the delivery of liquor to the shop of Delhi Tourism and Transportation Development Corporation, East Park Road, Delhi and to M/s Kamaljeet Singh at IX/1529, Main Road, Gandhi Nagar, Delhi. It was also noticed that another tempo No. DL-1L B 9434 arrived there at 7.10 PM whereas its arrival in the TP was mentioned at 5 PM. During enquiry, on 27.03.2006, Sh. Khem Chand S/o Sh. Ghasi Ram R/o Vill. and P.O. Srinagar, Distt. Mahoba, UP driver of truck No. MP-16H-0021 stated that he brought 609 cartons of liquor in his truck from M/s Glassgow Distilleries Ltd. at Satna, MP to 56 Rama Road, Delhi and another truck No. MP-16A-9705 had also brought the cartons of whisky from the same distillery of MP to 56 Rama Road, Moti Nagar, Delhi. One Santosh employee of distillery was also with them and he carried back all the papers with him regarding the liquor loaded in his truck No. MP-16H-0021. He also told that his truck had reached at Maharajpur Check Post at 5.30 AM on 26.03.2006 and he paid toll tax Rs. 100/-there. As per procedure the attorney of the distillery/distributor and local licencee of liquor vend have to pay import fee/excise duty. It is evident from the above that the import fee on the one truck load of liquor from glassgow distillery in Satna, MP to bond at 56 Rama Road, Moti Nagar, Delhi and excise duty for transport of liquor from bond to various licensee liquor vends in Delhi has been evaded, causing a wrongful loss of huge amount of revenue to the State Govt. It has occurred in the presence and active connivance of Sh. R.N. Tyagi, Excise Inspector, Sh. Sham Sunder and others. Inspr. R.N. Tyagi thus abused his official position to obtain wrongful gain/pecuniary advantage to accused persons. A case has been registered u/s 13 (1)(d) Prevention of Corruption Act r/w 120B IPC, P.S. A.C. Branch, Delhi. ' It is clear from the above that according to the prosecution matter relates to evasion of the excise duty for which aforesaid modus was employed by Glasgow Distiller. According to the prosecution the officials in the Excise Department also helped/connived with the distillery ensuring the evasion and thus abused their official position to obtain wrongful pecuniary advantage. These include, among others Shri R.N.Tyagi, Excise Inspector and, therefore, case under Prevention of Corruption Act is registered invoking Section 13(1)(d) of the said Act.
(3.) Since case under the Prevention of Corruption Act (POC Act) is registered, investigation is with Anti Corruption Branch of the Police. After the registration of the case, investigation was carried out and on 15.5.2006 status report was filed by the respondent/State giving the progress of the investigation. This was updated while submitting written submissions dated 20.4.2007. As per the report action which was taken during the course of investigation, after the registration of the case, revealed as under: (a) `As per videograph taken on site and identification of accused official Sh. R.N. Tyagi and the Attorney Sh. Sham Sunder has been done by. Sh. Arvind Kumar, Suptd. Excise Department, GNCT of Delhi, Vikas Bhawan, New Delhi. It is proved that Inspr. R.N. Tyagi, officer in charge of the bond and Sh. Sham Sunder Attorney of the bond, were very much present on the spot at the time of commission of offence. It all has happened with their prior knowledge and connivance with each other. The petitioner Sh. Sham and Sh. R.N. Tyagi are fully involved in the commission of the crime on the basis of the facts and the investigation conducted so far. (b) During investigation, it has been found that truck No. MP-16-H-0021had crossed the Trade Tax Check Post at Panwadi, Mahoba, UP/MP Boarder on 25.03.2006 at 5.55AM Alongwith 609 cartons of IMFL vide gate pass No. 8992/6A and C.C. Ticket No. 1326726, as entered in their registration book No.. This truck was directed by the said check post to pass through Trade Tax Check Post at Maharajpur, Distt. Ghaziabad, UP, as instructed to the driver Sh. Khem Chand S/o Shri Ghasi Ram R/o Srinagar of Jagdamba Road Carrier, Katni, with Cartons of IMFL vide Sl. No, 1001 to the registration book No.3. The truck No. MP-16H-0021 crossed the Trade Tax Check Post at Maharajpur, Distt. Ghaziabad UP with IMFL vide Sl. No. 1106 dated 26.03.2006 or registration Book No.4, Maharajpur Check Post under the directions of Panwadi Check Post. The Toll Tax receipt of Rs. 100/ dated 26.03.2006 of the authorized contractor of Municipal Corporation of Delhi at Maharajpur Border also confirms that the said truck crossed Maharajpur Check Post into the jurisdiction of Delhi on 26.03.2006 at 5.30 AM. (c) A team of ACB officials was sent to Satna in MP to verify the records of the distillery about the dispatch liquor, export verification certificate, bills etc. However, the distillery was found closed and no responsible staff was found present (except; one Asstt. Manager) there to join the investigation, nor the record were available for verification. The Asstt. Manager claimed ignorance of the relevant record and stated that they were with the Manager. The team also made search for the truck No. MP-16H-0021, which also could not be traced. Even the transporter and Distillery owners were not available for the investigation. Notices u/s 91 Cr.Pc. have been given to relative/staff to supply the information about the distillery and the truck. The distillery in charge, transporter had left the office/ residence and was not traceable. (d) On further investigation, from Sales Tax Check Post at Mohaba (Banda Distt.) in UP at UP/MP Border, it is established from the records of Trade Tax Department at the time of arrival of truck No. MP-16H-0021 with the REGULATIONignment on 25.03.2006 at sales Tax Check Post Mohaba at UP/MP Border, that this truck was carrying 609 cartons of Indian Made Foreign Liquor, which consisted of Bombay Special and Superman Whisky. The Distillery challan, carried by the truck, whose copy with driver submitted to the Sales Tax Authorities shows the cost of one case of IMFL as Rs. 256,85/- and total cost as Rs. 156425.86/-. The delivery challan has been issued by Glasgow Distilleries, Satna, MP. It is clearly established from records that the IMFL 609 cartons, started from Glasgow Distillery and the destination was Glasgow Distillery, 56, Najafgarh Road (Rama Road) Delhi. (e) (In Crl. M.C. No. 2446/06, inadvertently it has been mentioned as Royal Master whisky in place of Superman). It is thus established beyond doubt that the truck No. MP-16H-0021 brought 609 carton of liquor (Bombay Special and Superman whisky) from Glasgow Distillery, Satna, MP to 56, Rama Road, Nazafgarh Road, Delhi with was unloaded at the warehouse but not brought on record and dispatched to various liquor shops in Delhi. (f) Teams were sent to residence of Sh. Sham Sunder at Rajouri Garden in Delhi and Model Town, Ferozpur in Punjab. His house in Rajouri Garden, Delhi was found locked and neither he nor his family members were traceable. Efforts to trace him at his hometown, at Model Town in Ferozpur in Punjab also proved futile, as he was not available there as well. However, notice has been served u/s 160 Cr.Pc. upon him to appear before the investigation officer for 24.05.2006 in Anti Corruption Branch, Delhi. (g) Efforts were also made to arrest Excise Inspr. R.N. Tyagi, posted as officer in charge of liquor warehouse at 56, Rama Road, Moti Nagar, Delhi. Notices dated 12.04.2006 and 17.04.2006 were issued to Sh. R.N. Tyagi, Ex.Inspector through the senior officers of Excise Department and notices dated 20.04.2006 and 25.04.2006, 6.5.2006 and 9.5.2006 through his family members at his native home but he did not join the investigation of the case. (h) Non-bailable warrant in respect of Sh. R.N. Tyagi, Excise Inspector and Sh. Sham Sunder were obtained from the Hon`ble Court of Sh. Sunil Gaur, Spl, Judge, ACB, Delhi. (i) Tempo No. DL-1LC-9559 by which the IMFL was transported to M/s Kamaljeet Wine Shop, L-52 Gandhi Nagar, Delhi has been impounded in the case. The driver of this tempo Sh. Ram Bhujarat @ Ramu has clearly stated u/s 164 Cr.Pc. to have transported the IMFL from 56 Rama Road, Moti Nagar to Gandhi Nagar, Delhi and DTTDC Wine Shop, East Part Road, Karol Bagh, New Delhi. The staff on duty at DTTDC shop has been arrested. (j) As regards unloading of Royal Master liquor at M/s Kamaljeet Singh, Gandhi Nagar, Delhi, investigation are being carried out to ascertain, its supplier, location of warehouse in Delhi, and so on. Efforts will be made to trace its source, legality and investigated to logical end. (k) One accused Sh. Ashok Kumar, who was manager of M/s Kamaljeet Wine Shop at 52, Gandhi Nagar, Delhi has been arrested on 01.05.2006. (l) The search warrant of M/s Glassgow Distilleries,. Satna, MP has been obtained from the Hon`ble Court of Sh. Sunil Gaur, Spl. Judge, ACB, Delhi, for searching relevant record. A team of officials was sent to Satna for further investigation. (m) Shri Sham Sunder and Sh. R.N. Tyagi were present at the Warehouse on 26.03.2006 at the time loading of tempo No. DL-1LC-9559, which was found to be not recorded into the record of Warehouse. The transportation of liquor by this tempo has also not been found were checked on 27.03.2006. Presence of Shri Sham Sunder and Sh. R.N. Tyagi is seen in the videograph recorded by the Surveillance team on 26.03.2006 and he has been identified in the video film by Sh. Arvind Kumar, Suptd. Excise Department, GNCT of Delhi, Vikas Bhawan, New Delhi. There is, thus, no doubt that Shri Sham Sunder and Sh. R.N. Tyagi were present on the spot and fully involved in the smuggling of liquor, causing wrongful pecuniary advantage to himself and others and wrongful loss to the state. (n) The Excise Department, Govt. of Delhi vide their letter No. F.10 (1439)EX/IMFL/2005-06/1446 dated 15.05.2006 have confirmed that Excise Duty to the tune of Rs. 3,89,151/- was chargeable on 609 cartons of liquor which has been evaded. Thus the Excise Department, Govt. of Delhi has suffered a wrongful loss to the extent of Rs. 3,89,151/- towards Excise Duty on account of non- recording of one truck load of liquor at Warehouse on 26.03.2006 and its unaccounted transportation to the liquor vends. (o) Further, District Excise Officer (IMFL), Excise Deptt, Govt. of Delhi has intimated vide their office letter No. F.10 (1439)EX/IMFL /2005-06/1591 Dated 22.05.2006 that Value Added Tax department has also suffered a loss of Rs. 1.09 lakhs towards the Value Added Tax payable to Govt. of Delhi by the Warehouse and the liquor vends together. (p) Sh. Khushal Singh, Constable Delhi Excise, Sh. Bharat Kumar Soni incharge wine shop DTTDC, Karol Bagh, Sh. Sanjay Nagar IInd in charge wine shop DTTDC, Karol Bagh and Sh. Ashok Kr. Manager Kamaljeet Wine Shop Gandhi Nagar have been arrested in this case and are on bail. (q) Bail applications of Sh. Uday Singh Dhruvey Asstt. Distt. Excise Officer Satna MP, Sh. Rajender Singh Constable Excise Office Satna MP, Sh. Kamal Jeet Singh owner wine shop Gandhi Nagar Delhi, Sh. Sanjeev Aggarwal Director M/s Glasgow Distilleries Ltd. , Sh. R.N. Tyagi Excise Inspr. Delhi and Sh. Sham Sunder Attorney M/s Glasgow Distilleries Ltd. have been rejected by the Court of Sh. Sunil Gaur Spl. Judge Tis Hazari Delhi after due considerations. (r) Sh. Sham Sunder Attorney Glasgow Distilleries Ltd. in Delhi and Sh.R.N. Tyagi Excise Inspr. Delhi have joined the investigation under the direction of Hon`ble Court. But they have not disclosed any thing about the crime. That is loading and unloading of IMFL from the truck at bonded ware house in Delhi. They have also not handed over the relevant documents such as stock register, L-1 register etc.';