Kamal Kumar Agarwal vs Central Bureau Of Investigation
1998 Latest Caselaw 909 Del

ORDER

D.K. Jain, J.

1. By this petition under Section 439 r/w Section 482 of the Code of Criminal Procedure (for short the Code), the petitioner seeks bail in FIR No.496/98 dated 25 August 1998, registered in PS Najafgarh, Delhi under Sections 304/328 IPC, later registered as CBI case No.RC/SIG/1998/S-0002 dated 7 September 1998 under Sections 328/304/272/273/201/120-B/420 IPC r/w 7/16 of the Prevention of Food Adulteration Act, 1954.

2. Information was received that two persons namely, Pinky, aged 14 years and Smt. Susheela, aged about 45 years, daughter and wife of one Krishan Kant Jha, resident of Ranaji Enclave, Delhi, respectively died on 24 and 25 August 1998 after consuming adulterated mustard oil, in Deen Dayal Upadhyay Hospital, Delhi and two other members of the family were still in the hospital. The mustard oil consumed is stated to have been purchased by Krishan Kant Jha from the shop of one Vinod in the same locality; the latter to have purchased it from Gupta Stores, Shalu Enterprises and S.K.

Stores. On use, it was found to be tasting bitter and thereafter on its consumption his family members started vomiting, had diarrhoea and developed swelling on legs and also started having breathlessness. It is alleged that Govind Prasad Gupta, proprietor of Shalu Enterprises, had in turn purchased the mustard oil from one Sushil and Pawan Kumar, having their factory in Vishwas Park, Uttam Nagar under the name and style of M/s.Vikas Traders; One Gurdev Raj being the proprietor of M/s. S.K. Stores also used to purchase mustard oil from the said Sushil and Pawan Kumar; Sushil and Pawan Kumar in turn used to purchase oil from various sources and a month prior to the registration of this case had purchased one tanker of oil from the petitioner, who is the proprietor of M/s.Kamal Oil Mills but when they learnt that it had affected some persons in Uttam Nagar, who had consumed the same, they sold it to National Dairy Development Board, NOIDA. It is further alleged that the petitioner, who had supplied oil also to one Rampat Oil Mills, Najafgarh, Naresh Trading Mills and Vikas Traders had taken it back from Rampat and Naresh Trading Mills, when they complained about its quality but refused to take back the same from Vikas Traders on the plea that they were purchasing oil from other sources also. The oil taken back by the petitioner from Rampat Oil Mills and Naresh Trading Mills is alleged to have been re-sold to K.S. Oil Mills and National Dairy Development Board, NOIDA.

3. The FIR, No.496/98, was registered on 25 August 1998 at PS Najafgarh but on 2 September 1998 the investigations were handed over to Crime Branch of the Police but finally the investigations were taken over by the CBI on 7 September 1998.

4. The petitioner was arrested on 27 August 1998 and was produced before the Metropolitan Magistrate on the following day and was remanded to police custody initially for three days, which was further extended by eleven days, whereafter the petitioner was sent to judicial custody and he continues to be there. On 3 September 1998, the petitioner moved an application for grant of bail before the Sessions Court; which was dismissed on 19 September 1998, mainly on the ground that: (i) during investigations the samples of mustard oil including "Pansari" brand and "Panghat" brand, manufactured by the petitioner's concern, lifted respectively from petitioner's premises and from the shop of one Mahesh Kumar, its dealer, gave positive test for Argemone oil and (ii) the matter is still at the stage of investigation. Hence this petition.

5. I have heard Mr. P.N. Lekhi, learned senior counsel for the petitioner and Mr. A.K. Dutt, learned counsel for the CBI.

6. The matter came up for hearing on 25 September 1998. It was submitted for the petitioner that four samples of loose mustard oil, lifted from the factory of the petitioner by the Food Adulteration Department had tested negative for Argemone oil, an adulterant, which is suspected to have caused death of the deceased, Pinky and some others. Though the submission was not pointedly disputed by Mr. A.K. Dutt, but it was submitted by him that on 29 August 1998 and again on 1 September 1998 some samples were also lifted by the Police from the petitioner's factory namely, Kamal Oil Mills, and the same had been sent to Shriram Laboratory in Delhi for testing but the results were awaited. Learned counsel had prayed that before a final opinion on the reports obtained by the Food Adulteration Department is formed, results from Shriram Laboratory may be awaited. The CBI was directed to collect the reports from the said Laboratory immediately. Expressing dissatisfaction over the pace of investigations by the CBI, on the submission of learned counsel for the petitioner that the theory of so called deliberate mixing of Argemone oil with mustard oil is impracticable and uneconomical, it was also directed to inform the Court on the next date i.e. 5 October 1998, as to whether oil could be extracted from Argemone seeds, if so is it available in the market, where and at what rate. The prayer by Mr. Lekhi for interim bail was however declined.

7. The information regarding Argemone oil, it was stated on 5 October 1998, could not be collected. But surprisingly Mr. Dutt stated on instructions from the IO, who was present in Court, that samples collected by the Police from the petitioner's factory on 29 August 1998 had not been sent to Shriram Laboratory for testing; samples lifted on 1 September 1998 were initially sent to the said Laboratory on 2 September 1998 but on 3 September 1998 the Laboratory was instructed by the ACP (Crimes) not to test the same and it was decided to send the same samples for quantitative analysis by the Indian Institute of Chemical Technology Hyderabad, which, though not notified as Central Food Laboratory under Section 4 of the Prevention of Food Adulteration Act, 1954, is stated to be an autonomous body under Council for Scientific and Industrial Research, funded by the Government of India, receiving references for testing of Chemicals and oils from Courts, Police and other organisations. It was stated that testing by the said Laboratory will take minimum two weeks.

8. This shows that the progress in the investigations has been tardy and the approach of the CBI in a matter of grave national concern is rather casual. However, the fact remains that as of now the matter is under investigation, which still is not complete.

9. It is submitted by Mr. Lekhi that even if the allegations against the petitioner are taken on their face value, none of offences under which he is charged, are attracted; there is not an iota of evidence to show that the alleged mustard oil with toxic impurities, hazardous to the public health were supplied by the petitioner; at best the Argemone oil might have got mixed accidently with the mustard oil, which was filtered and processed in petitioner's factory, without petitioner's knowledge, entitling him to immunity under Section 80 IPC; that the petitioner has been thoroughly interrogated during the period of his police remand for about 15 days and is no longer required for custodial interrogation; his factory is lying sealed, samples have been collected and the records have been seized by the Police and, therefore, there is no possibility of his tampering with the evidence or interfering with the investigations; the petitioner has a well established business, he has property in Delhi, where his other family members are also residing and therefore there cannot be any cause to suspect that he will abscond and flee from justice. It is alleged that the petitioner has been made scapegoat for the apathy of the Food Adulteration Department in not checking mustard oil being sold in the market. It is also asserted that the Laboratory at Hyderabad where the samples have been sent for testing, is not a Central Food Laboratory within the meaning of Section 4 of the Prevention of Food Adulteration Act. It is, thus, pleaded that the petitioner, who is in incarceration since 27 August 1998, deserves to be enlarged on bail.

10. The application is resisted by learned counsel for the CBI primarily on the grounds that : (i) the petitioner is involved in very serious crime for which he can be sentenced to life imprisonment (ii) some of the employees of the petitioners are absconding with the result that they could not be examined and (iii) investigations are still incomplete as test reports are yet to be received and if the petitioner is released on bail he would interfere with investigations.

11. The principles governing the question of bail to an accused at the pre-trial stage are well settled. Broadly speaking, the factors to be taken into consideration are the nature and the gravity of the offence; the character of the evidence, the circumstances which are peculiar to the accused; the reasonable possibility of the presence of the accused not being secured at the trial i.e. likelihood of the accused fleeing from justice and the reasonable apprehension of evidence being tampered with by him, larger interest of the public or the State etc.(See: State(Through Deputy Commissioner of Police, Special Branch, Delhi) Vs. Jaspal Singh Gill - .

12. It is a matter of common knowledge that consumption of adulterated mustard oil has resulted in several casualties and sufferings. The case set up against the petitioner, in brief, is that for personal profit he has been manufacturing, selling and distributing mustard oil mixed with Argemone oil, scientifically termed as "Argemone Mexicana", a poisonous substance, when taken internally can produce oedema of legs, breathlessness, slight enlargement of liver and occasional diarrhoea. It was from one of petitioner's spelt-out outlets, that oil was purchased by Krishan Kant Jha, consumption of which resulted in deaths of his two close relations in the hospital and sufferings of some other relations. Adulteration of eatables, for profit or otherwise, is unfortunately rampant in the country. It is a heinous crime against the society and humanity. Undoubtedly, the nature of offence, the petitioner is accused of, is by any standard very serious. He is sought to be prosecuted under Sections 328/304/272/273/201/120-B/120 IPC r/w Sections 7 and 16 of Prevention of Food Adulteration Act, 1954.

13. It is true that bail should not be withheld by way of punishment and also that, as submitted by Mr. Lekhi, the petitioner has been interrogated in police custody but it is pointed out by learned counsel for the CBI that three of his employees, stated to be concerned with actual working of the petitioners factory, perhaps privy to the crime, are absconding. Their interrogation may provide primary evidence and/or important clues. There are serious allegations against the petitioner that tankers of mustard oil, which were returned to him by his retailers, namely, Rampat and Naresh, on receipt of complaint, had been supplied by him to National Dairy Development Board. Again the test reports about Chemical examination of the sampled oil, if found positive for Argemone, would be an important link in the proof of case against the petitioner. The process of investigation is yet incomplete. It is yet to be investigated as to whether it is the nefarious handiwork of only the manufacturer of mustard oil, like the petitioner, or the traders/middlemen have also played some part in the unscrupulous pursuit for a quick buck, affecting more than thousand people and claiming around fifty lives, which is no less than a mass murder.

14. As it is, it is neither possible nor desirable at this pre-trial stage to evaluate if there is sufficient evidence pointing to the guilt of the accused or whether the offences with which the petitioner is charged are attracted or not. Even otherwise it will not be proper to record any finding on the contentions urged by Mr. Lekhi. Any finding either way, including on the question whether the petitioner is entitled to immunity under Section 80 IPC, is likely to cause prejudice to one of the parties. The enlargement of the petitioner on bail at this juncture may possibly lead to tampering with evidence and thus, thwarting the course of justice. Therefore, bearing in mind the nature of accusations against the petitioner and the investigations being yet incomplete, I do not feel persuaded to enlarge him on bail at the present stage.

15. Before parting, I feel it necessary to reiterate that since personal liberty of a person is too precious a value of our Constitutional system, recognised under Article 21 of the Constitution, it is bounden duty of an investigating agency, CBI in this case, to see that the investigative process is rightly directed and all steps necessary for completing the process are taken expeditiously and pursued diligently. Central Bureau of Investigation is the prime investigating agency of the country and should avoid giving an impression that its working is dilatory or lop-sided. I am constrained to observe that investigations made by the CBI in the case so far appear to be not only slipshod and perfunctory but directionless, requiring serious consideration at the top level.

16. In the result, the petition is dismissed.