DAVINDER SHARMA Vs. CENTRAL BUREAU OF INVESTIGATION

JUDGEMENT

(1.) Applicant/accused has sought indulgence of this Court for grant of bail in FIR No. RC0042022A0007 dtd. 11/5/2022 registered with Police Station CBI, ACB, Jammu for commission of offences under sec. 7 of Prevention of Corruption Act, 1988 r/w 120-B IPC on the grounds that he is a Plant Protection Officer in Agriculture Department, J&K Government and is presently posted in Directorate Office of Agriculture Department, Goli Pulli, Jammu; that he is also licensing authority under Pesticide Act for issuing license to the persons dealing in pesticides; that the complainant is pesticide supplier and has already been issued license for selling pesticides for some items and the petitioner told the complainant the formalities required in this regard and told him to complete all the formalities; that the complainant has been insisting that the petitioner should grant him permission without his completing the required formalities which was declined by the petitioner; that the complainant malafide and irked filed a false and fabricated complaint alleged before the respondent that the petitioner is demanding bribe under Prevention of Corruption Act; that the petitioner never demanded any bribe from the complainant yet the respondent along with the complainant came to the office of the petitioner and the complainant forcibly threshed something into the pocket of the petitioner and when the petitioner checked his pocket as to what has been threshed by the complainant in his pocket, the trap team of the respondent caught hold of the petitioner and immersed his hands in the solution and the petitioner has been arrested in on 11/5/2022 and is in custody of the respondent; that there is no evidence against the petitioner with respect to demand of bribe by him; that during the course of the proceedings of the application it was revealed that the complainant wanted to include 24-25 more items in his license and the accused was demanding Rs.12,000.00 from him; that the government has formulated a policy of ease of doing business reform, under these reforms any license fee has to be deposited online. The Deputy Director Central Agriculture Production Jammu vide his letter No. Agri/DAJ/Dev-30/2022-23/118-21 dtd. 6/4/2022 intimated Director Industries and Commerce in the requirement of J&K Bank credit account number to settle amount in treasury head 0410-CH under EODB. This letter was issued in pursuance to the circular No. 07-JK (GAD) of 2022 dtd. 28/1/2022 issued by Principal Secretary to Govt. GAD. The Principal Secretary to Govt Agriculture Productions and Formers Welfare Department vide Govt. Order dated 208-JK (Agri) of 2021 dtd. 2/12/2021 accorded sanction for providing end to end registration and renewal process of services in online mode wherein registration for pesticide is also one of the services. From the date of regular circular the acceptance of license fee through treasury is unacceptable. The portal of the department was not functioning as it evident from letter dtd. 6/4/2022 issued by Deputy Director and FW Jammu; that the proposed fee scheduled under ease of doing business provides that for one time license fee is Rs.7500.00 and inclusion of each products requires additional fee of Rs.500.00. As stated above the portal of the department was not functioning, therefore, the official of the department were informing the applicants that they can pay the amount in cash in the office and when the portal become functional the same will be deposited online; that the complainant malafide lodged complaint that the official of the department are demanding bribe of Rs.12,000.00. The respondent on the said complaint, constituted a trap laying team and tracked the petitioner on 12/5/2022 and arrested the accused; that the petitioner filed a bail application before the learned Special Judge Anti-Corruption, CBI Cases Jammu who vide its order dtd. 24/5/2022 dismissed the bail application on the ground that the statement of the complainant and departmental witnesses have not been recorded yet; his liberty is of paramount consideration as guaranteed under the Constitution and it would be contrary to the concept of personal liberty if any person is punished in respect of any alleged matter for which he has not been found guilty or convicted thereof; grant of bail is a rule and its refusal is an exception; he is an innocent and has not committed any offence muchless the offence whereas the CBI has charged him taking recourse to Sec. 7 of Prevention of Corruption Act 1988 r/w 120-B IPC; the allegations made against him would not constitute any offence yet the Court below has only on one singular ground declined his request for bail; his incarceration would result in violation of his right to life guaranteed to him under the Constitution of India; it is true that the society has a vital interest in grant or refusal of bail because every criminal offence is the offence against the State, but it is equally true that the order granting or refusing the bail must reflect perfect balance between the conflicting interests namely sanctity of individual liberty and the interest of the society; the fundamental principle of criminal jurisprudence is that the presumption of innocence always lies in favour of accused until he is found guilty; the seriousness of the charge is no doubt one of the considerations while considering bail applications but that is not the only test or the factor in the bail applications; generally the object of bail is to secure the presence of the accused person at the trial by reasonable amount of bail, the object of bail is neither punitive nor preventative however the deprivation of liberty must be considered a punishment, the court owe more than verbal respect to the principle that punishment begins after conviction and that every man is deemed to be innocent until duly tried and found guilty; he undertakes to abide by all the conditions imposed by the court if granted bail.

(2.) Respondent/CBI per-contra, by filing the objections has opposed the bail on the grounds, that case FIR No. RC0042022A0007 dtd. 11/5/2022registered with Police Station CBI, ACB, Jammu for commission of offences under sec. 7 of Prevention of Corruption Act, 1988 r/w 120-B IPC on the basis of complaint dtd. 10/5/2022 lodged by one Nand Kishore S/o Yash Paul Sharma, R/o Ward No. 12 Shiv Nagar, R. S. Pura for demand of bribe of Rs.15,000.00 by the accused Devinder Sharma, Plant Protection Officer and Rajinder Kumar, Field Assistant, both working in the office of Directorate of Agriculture, Jammu for approval of application of the complainant for addition of pesticide products of different firms in the license of his cooperative society M/s Deva Batala Agriculture Cooperative Ltd.; on receipt of the complaint, the verification thereof was carried out by Sh. Sanjay Kumar, SI wherein the demand of bribe by both the accused Davinder Sharma, Plant Protection Officer and Rajinder Kumar, Field Assistant from the complainant was confirmed pursuant to which a trap was laid and accused person namely Davinder Sharma, who had entered into criminal conspiracy with accused Rajinder Kumar, was caught red-handed while accepting bribe of Rs.12,000.00 from the complainant whereby, the said accused persons were arrested on 11/5/2022 and taken into custody after following all the legal procedure;

(3.) Sh. M. K. Bhardwaj Ld. Sr. Counsel for petitioner/accused while advancing the case of petitioner/accused for grant of bail, has strenuously articulated arguments, that as per the allegations against petitioner/accused, on 11/5/2022 the CBI laid a trap and arrested the petitioner/accused for accepting bribe money of Rs.12,000.00 which was recovered from him and after completion of his CBI custody is presently lying-in judicial custody and is not required for any further investigation. It is argued, that the petitioner/accused has neither accepted any bribe money nor the same has been recovered from him during the alleged trap. It is vehemently argued, that the fundamental principle of criminal jurisprudence is that the presumption of innocence always lies in favour of the accused until proved and found guilty, and keeping the petitioner/accused in judicial custody in further incarceration will amount to inflicting pre-trial punishment which is against the principle of criminal jurisprudence, no special provisions for bail are provided in the Prevention of Corruption Act and the bail application of petitioner/accused is to be governed under the provisions of Sec. 437 CrPC, the "bail is rule" and "jail is exception."It is moreso argued, that the personal liberty as enshrined in the Constitution of India is of paramount importance which should not be deprived, petitioner/accused cannot be kept in detention for an indefinite period only upon the belief/mere apprehension that he will tamper with the prosecution evidence which cannot be expected as all the witnesses of the case are the officials of the CBI Department and none can expect that they will be influenced by petitioner/accused, in bail application the general principle is that the object of bail is to secure appearance of the accused person at his trial by reasonable amount of bail and deprivation of liberty must be considered a punishment, the court owe more than verbal respect to the principle that punishment begins after conviction and that every accused is deemed to be innocent until duly tried and found guilty. To buttress his arguments, ld. senior counsel has relied upon the decisions of (i)Sanjay Chandra-Appellant versus Central Bureau of Investigation-Respondent (2012) 1 Supreme Court Cases 40, (ii) 2007 Supreme (J&K) 48 (Mohd. Razak and Anr.-Appellant Versus State of J&K & Anr.-Respondent), (iii) judgment/order of J&K High Court rendered in Bail App No. 16/2020 (Rajesh Kumar-Applicant vs. Union Territory of Jammu and Kashmir-Non-applicant)&(iv) judgment/order of J&K High Court rendered in Bail App No. 174/2020 (Umesh Kumar-Petitioner(s) vs Incharge Police Station CBI and anr.-Respondent(s).