Vijay Aggarwal And Dinesh ... vs The C.B.I.
1999 Latest Caselaw 206 Del

ORDER

N.G. Nandi, J.

1. In both these applications under Section 438 of the Criminal Procedure Code (hereinafter referred to as "the Code"), the applicants pray for the relief of release before arrest for the alleged offences under Section 304, 328, 272, 273, 201, 420, 120-B of Indian Penal Code read with Sections 7/16 of the Prevention of Food Adulteration Act (hereinafter referred to as "the Act").

2. The prosecution case, as revealed from the charge-sheet is that during the months of May, 1998 to August, 1998 the applicants entered into a conspiracy with an object to adulterate mustered oil by mixing it with Argemone Oil, which resulted in death of large number of people by dropsy disease; that the applicants, namely M/s.Kamal Oil Mills and Vijay Trading Company purchased argemone oil from M/s.Krishna Oil & Cotton Company, Modasa, District Sabarkantha (Gujarat), mixed it in mustard oil and sold the same in the market for consumption; that death of number of persons affected by dropsy disease in Delhi after the consumption of adulterated mustered oil, led to the registration of the FIR for the aforesaid offences, inter-alia,alleging that Smt.Sushila and Ms.Pinki, wife and daughter respectively of Shri K.K. Jha died because of consumption of the said adulterated mustard oil; that argemone oil was purchased from Modasa (Gujarat) from where it came to Kamal Oil Mills/Vijay Trading Company, who sold the same to Vikas Traders, who sold the same in the market and received by consumers; that the report under Section 173 of the Code came to be filed by the investigating agency stating therein that these two applicants are not arrested.

3. It is not disputed that proceedings under Section 82/83 of the Code have been initiated against both the applicants by the learned Metropolitan Magistrate concerned.

4. The first limb of arguments advanced by Shri P.N.Lekhi, Senior Counsel for the applicants is that the filing of charge-sheet against the accused would make no difference as far as the grant of relief under Section 438 of the Code is concerned inasmuch as the provision of Section 438 could be invoked before the arrest/surrender of the accused since the said provisions would be applicable to the stage prior to the arrest and filing of charge-sheet under Section 173 of the Code does not disentitle an accused to pray for the relief under Section 438 of the Code; that the conditions embodied in Section 437(1) of the Code are not to be read for the purpose of Section 438 of the Code; that the applicants have sufficient apprehension to believe that they would be arrested and the filing of the chargesheet strengthens further the apprehension of arrest entertained by the applicants.

In the case of Gurbaksh Singh Sibbia Etc. Vs. State of Punjab /0215/1980, it has been held that "the distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the former is granted after arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest and is therefore effective at the very moment of arrest."

In paragraph 4 the observations of Law Commission of India, in its 41st Report (Volume-I) paragraph 39.9, have been reproduced, which read :

"...... Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail.........."

In paragraph 35, it is observed that "the filing of a first information report is not a condition precedent to the exercise of the power under Section 438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an FIR is not yet filed. Anticipatory bail can be granted even after an FIR is filed, so long as the applicant has not been arrested."

There can be no disagreement with the above proposition of law enunciated by the Hon'ble Supreme Court. At the same time, it is not suggested from the said judgment that the report under Section 173 of the Code was filed before the Magistrate's Court or not, in other words, whether the investigation had concluded or not. The said judgment only refers to the grant of relief under Section 438 of the Code before arrest. In the instant case as per the report under Section 173 of the Code, the accused-applicants have been shown not arrested and it is also not disputed that proceedings under Sections 82/83 of the Code initiated.

5. Reliance is also placed on the decision in the case of Ram Sewak and Ors. Vs. State of M.P. 1979 CRL.L.J. p:1485 (M.P.) in paragraph 19 whereof the recommendations of Law Commission of India, in its 41st Report (Volume-I) paragraph 39.9, have been reproduced, which read :

"...... The necessity for granting anticipatory bail arises mainly because some times influential persons try to implicate their rivals in false case for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. In recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase. Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail."

In paragraph 21, it has been observed that "it is the apprehension of any person who has reasons to believe that he may be arrested on an accusation of having committed a non-bailable offence, which has to be given due consideration and weight. If his apprehensions continue even at the stage of committal Court proceedings there is nothing in the Section which debars him from applying for an anticipatory bail in case of his apprehended commitment under custody".

6. Reliance is also placed on the decision in the case of Smt. Sheik Khasim BI Vs. The State 1986 CRL.L.J. p: 1303, wherein it is held by the Full Bench of the Andhra Pradesh High Court that "the filing of a chargesheet by the police and issuing of a warrant by the Magistrate do not put an end to the power to grant bail under S. 438(1). On the other hand, the High Court or the Court of Session has power to grant anticipatory bail under S. 438(1) to a person after the criminal court has taken cognizance of the case and has issued process viz. the warrant of arrest of that accused person."

7. As against this, it is submitted by Mr. R.N. Trivedi, learned Additional Solicitor General that once the charge-sheet is filed the remedy for the accused is to apply for regular bail under Section 439 of the Code since there is no question of his belief that he would be apprehended or arrested but it is a matter of certainty that he would be arrested since the stage of reasonable belief is over and not a stage for apprehension. In this regard, reliance is placed on the decision in the case of Saluddin Abdul Samad Shaikh Vs. State of Maharashtra /0280/1996 wherein it is observed that "....... it must be realized that when the Court of Sessions or the High Court is granting anticipatory bail, it is granted at a stage when the investigation is incomplete and, therefore, it is not informed about the nature of offence against the alleged offender. It is, therefore, necessary that such anticipatory bail orders should be of a limited duration only and ordinarily on the expiry of that duration or extended duration, the court granting anticipatory bail should leave it to the regular court to deal with the matter on an appreciation of evidence placed before it after the investigation has made progress or the chargesheet is submitted."

Reliance is also placed on the decision in the case of K.L. Verma Vs. State and Anr. /1493/1998 whereof, it is observed that "This Court further observed that anticipatory bail is granted in anticipation of arrest in non-bailable cases, but that does not mean that the regular court, which is to try the offender, is sought to be bypassed. It was, therefore, pointed out that it was necessary that such anticipatory bail orders should be of a limited duration only and ordinarily on the expiry of that duration or extended duration the court granting anticipatory bail orders should leave it to the regular court to deal with the matter on an appreciation of evidence placed before it after the investigation has made progress or the charge-sheet is submitted."

In the case of State of Andhra Pradesh Vs. Bimal Krishna Kundu and Anr. /0892/1997, it is held that "the considerations for grant of anticipatory bail are different from considerations for post-arrest bail." In paragraph 7, it is observed that "There is no indication in Section 438 of the Code for justifying a haitus to be made among non-bailable offences vivisecting those punishable with death or imprisonment for life and those others punishable with less than life imprisonment. No doubt such a classification is indicated in Section 437(1) of the Code, but that section is concerned only with post-arrest bail and not pre-arrest bail."

Thus, it will be seen from the above that as per the judgment in the case of Saluddin Abulsamad Shaikh Vs. State of Maharashtra (supra) and K.L.Verma Vs. State (supra), a stage of pre-arrest is divided into (i) investigation not making any progress, in other words merely filing F.I.R. and no much investigation taking place and (ii) after the investigation has made progress or the charge-sheet is submitted that is the stage where the regular court would step in for the purpose of grant of bail. Thus distinction between the stage before the filing of the charge-sheet and after the filing of the charge-sheet assumes importance as far as grant of bail under Section 438 and/or 439 of the Code is concerned. In the instant case admittedly the charge-sheet is filed. Both the applicants are shown not arrested. In this regard, reference may be made to charge-sheet, copy whereof is produced, wherein it is stated that "accused Dinesh Aggarwal and Vijay Kumar Aggarwal are not traceable/absconding and a non-bailable warrant of arrest may kindly be issued. Further investigation with regard to some other suspects are not traceable and allegedly participated in the crime are being pursued under the provision of law". In view of this, the decision in the case of Saluddin Abulsamad Shaikh Vs. State of Maharashtra (supra) and State of Andhra Pradesh Vs. Bimal Krishna Kundu & another (supra) would be applicable, and therefore, the present applications for the relief of release before arrest under Section 438 of the Code would not be maintainable since after the filing of the charge-sheet, the Court, for the grant of relief under Section 439 of the Code would inter- vene as the provisions of Section 438 are not meant/intended to bye pass the regular Court under Section 439 of the Code.

8. The second limb of arguments advanced by Mr. Lekhi is that Section 29 of the Prevention of Food Adulteration Act (hereinafter referred to as "the Act") has repealed the provisions of any other law and that provisions of I.P.C. could not have been invoked against the applicants; that this has been treated as a special case by invoking provisions of Indian Penal Code and there is nothing exceptional in this case for invoking provisions of Indian Penal Code and the provisions of Section 25 of the Act only could have been invoked. As against this, Mr.Trivedi has submitted that the Act is an amending and consolidating Act and complete Code and that the provisions of Section 29 of the Act in no manner affect the provisions of Indian Penal Code; that the application of Indian Penal Code or any other Act will depend upon the facts and the prosecution if under more than one Acts is permissible then one can be tried under more than one Acts if the facts attract the offence punishable under different Acts; that Section 328 IPC is attracted in the present case. In this regard, reliance is placed on the decision in the case of The Sales Tax Officer, Banaras and Ors. Vs. Kanhaiya Lal Makund Lal Saraf /0129/1958 paragraph 17 whereof reads:

"(17)As was observed by Lord Herschell in the Bank of England v. Vagliano Brothers, 1891 AC 107 at p.144 :

"I think the proper course is in the first instance to examine the language of the Statute and to ask what is its natural meaning uninfluenced by any considerations derived from the previous state of the law, and not to start with enquiring how the law previously stood, and then, assuming that it was probably intended to leave it unaltered, to see if the words of the enactment will bear an interpretation in conformity with this view."

"If a Statute, intended to embody in a code a particular branch of the law, is to be treated in this fashion, it appears to me that its utility will be almost entirely destroyed, and the very object with which it was enacted will be frustrated. The purpose of such a statute surely was that on any point specifically dealt with by it, the law should be ascertained by interpreting the language asked instead of, as before, by roaming over a vast number of authorities in order to discover what the law was, extracting it by a minute critical examination of the prior decision........".

Reliance is also placed on the decision in the case of The Union of India Vs. The Mohindra Supply Co. /0004/1961:

"In dealing with the interpretation of the Indian Succession Act, 1865 the Privy Council in Narendra Nath Sircar V. Kamlabasini Desai, 23 Ind App 18, observed that a code must be construed according to the natural meaning of the language used and not on the presumption that it was intended to leave the existing law unaltered. The Judicial Committee approved of the observations of Lord Herschell in Bank of England Vs. Vagiliano Brothers, 1891 A C 107, to the following effect :

"I think ...... the proper course is in the first instance to examine the language of the statute and to ask what is its natural meaning, uninfluenced by any considerations derived from the previous state of the law, and not to start with inquiring how the law previously stood, and then, assuming that it was probably intended to leave it unaltered, to see if the words of the enactment will bear an interpretation in conformity with this view. If a statute, intended to embody in a code a particular branch of the law, is to be treated in this fashion, it appears to me that its utility will be almost entirely destroyed, and the very object with which it was enacted will be frustrated. The purpose of such a statute surely was that on any point specifically dealt with by it, the law should be ascertained by interpreting the language used instead of, as before, by roaming over a vast number of authorities in order to discover what the law was, extracting it by a minute critical examination of the prior decisions.....".

It is further observed that "the court in interpreting a statute must therefore proceed without seeking to add words which are not to be found in the statute, nor is it permissible in interpreting a statute which codifies a branch of the law to start with the assumption that it was not intended to alter the pre-existing law; nor to add words which are not to be found in the statute, or "for which authority is not found in the statute". But we do not propose to dispose of the argument merely on these general considerations. In our view, even the legislative history viewed in the light of the dictum of the Privy Council in Hurrish Chunder's case, 10 Ind App 4 does not afford any adequate justification for departing from the plain and apparent intendment of the statute."

9. The above discussion would suggest that the provisions of Indian Penal Code are in no manner affected by Section 29 of the Act, as sought to be argued on behalf of the applicants and if the offence is punishable under the provisions of two different Acts, then it would be open to invoke the provisions of the Acts, which are attracted in a given case.

10. As far as he merits of the case are concerned, for applicant Vijay it has been argued by Mr.Lekhi that applicant Vijay did not play any role and that there is no question of conspiracy inasmuch as Vijay is a computer engineer having a computer center and the business of Vijay Trading is nominally in his name and that nothing incriminating against applicant Vijay is found in course of the search; that no further investigation is needed since charge-sheet is filed and according to charge-sheet, further investigation is only required about other suspected persons; that there is no question of Vijay fleeing from the process of law and that all accused persons except the present two applicants have been released on bail.

For applicant Dinesh, it is submitted that he is the brother of applicant Vijay and was trading in the name of Kamal Oil Mill and that tanker No.DIL-3044 was sold to NDDB, NOIDA, by Kamal Aggarwal through Vijay Trading Company as per the allegations in the charge-sheet. Referring to mustard oil tanker analysis report, copy whereof is at page 34, it has been submitted that the mustard oil in tanker No.DIL-3044 suggests the test for argemone in the negative.

11. It has been argued by Mr.Trivedi that the effect of consumption of mustard oil is mirage with argemone; that it will be a matter of proof as to why Shariya was imported by the applicant when he is a manufacturer of mustard oil only and the petitioners are not the manufacturers of any allied product for which argemone was required. All these is a matter of proof, which could be at the trial.

The prosecution has relied on the statement of applicant Dinesh, which suggests that 32 packages of each of the brand referred to in the statement were weighed and all the packages were found in excess of 200 to 500 gms.

12. Copy of the report of Inspector on application for registration suggests the signatures of Sales Tax Inspector as well as Vijay Aggarwal for Vijay Trading Co. Copies of Sales Tax Returns for the years 1995-96, 1996-97 and 1997-98 bear the signatures of applicant Vijay as the proprietor of the concern. Copy of Form ST-11 contains the signatures of applicant Vijay Aggarwal as proprietor of Vijay Trading Co. Copy of Form-I under the Central Sales-tax (Delhi) Rules, 1957 also contains the signatures of applicant Vijay as the proprietor of Vijay Trading Co. Schedules A, B, C and D in the Audit Reports under Section 44AB of the Income-tax Act, 1961 by Sudhir Aggarwal, Chartered Accountant bear the signatures of applicant Vijay Aggarwal as proprietor of Vijay Trading Company. The information supplied by Vijaya Bank to the investigating agency relate to the transactions in current Account No.3486 of Vijay Trading Company from 1.1.1998 till 19.11.1998. It suggests the receipts and payments relating to the Vijay Trading Co. running into lakhs of Rupees. Copies of the pay-in slips and the copies of the cheques suggest the receipt in and payment from the aforesaid account of Vijay Trading Co. The copies of number of cheques have been produced, which bear the signatures of applicant Vijay Aggarwal as proprietor of Vijay Trading Company. It also appears that a request was made to Vijaya Bank for opening of current account in the name of Vijay Trading Co. and necessary instructions and the vouchers suggesting the deposit for opening of current account with specimen signatures, bear the signatures of applicant Vijay. The letter of proprietorship given to Vijaya Bank Ltd. also bears the signatures of applicant Vijay Aggarwal as proprietor of Vijay Trading Company. All these would, for the present limited purpose, suggest the concern of applicant Vijay Aggarwal with the business of Vijay Trading Company, which would, in my opinion, dispel the submissions advanced in this regard by the counsel for the applicant.

As far as applicant Dinesh Aggarwal is concerned, in the charge-sheet it has been alleged that accused Dinesh Aggarwal was the Managing Director of the business of M/s. Kamal Oil Mill and Refinery, 33/9, Bawana Road, Samaipur, Delhi and was also looking after the affairs of the Mill. Charge sheet contains the allegation that co-accused Maheshkumar Maganlal Shah used to purchase Argemone (Akharva/Satyanashi/Darudi) on cheap rate of Rs. 7/- per Kg. from various persons and thereafter used to manufacture argemone oil in his factory and same was supplied to various purchasers including Vijay Trading Co. and Kamal Oil Mill. The allegation is also to the effect that accused Dinesh Aggarwal, having knowledge that the said oil was contaminated and have resulted in spread of epidemic dropsy, had sold the same to M/s. K.S. Consupro India Private Limited, Delhi, who sold this oil in tins with labels of Tamul Brand to M/s. S.M. Enterprises, Guwahati and sample tested by P.F.A. at Guwahati showed positive results about argemone.

The copy of report of PFA at Guwahati has been placed for perusal, which suggests the result about argemone as positive.

13. The statement of Joshi Indravadan Narmadashanker, Clerk serving in Krishna Oil Mill & Cotton Co., Modasa (Gujarat), under Section 164 of the code has also been referred to by the respondent-CBI. It is stated therein that "Our mill sold between May 1998 and June 1998 2.5 tankers of Akharva oil and 1.5 tanker of Shariya oil to M/s.Vijay Trading Co., Delhi and bills for both these oils in Form No.45 K, despatch papers have been made of Shariya oil only; that both these oils are used in manufacturing soaps; that Akharva oil is costlier by approximately Rs.10/- than Shariya oil and Akharva seeds are costlier by about Re.1/- to 1.50 than Shariya seeds. The Akharva seeds attract 4% sales tax whereas on Shariya seeds there is no sales tax. Because of this Akharva is sold as Shariya; that local people here (Modasa, Gujarat) know Akharva as "Darudi" (Argemone) and in Rajasthan as "Satyanashi".

14. It need hardly be said that the evidence collected in course of investigation has not to be seen in detail for the purpose of Section 439 of the Code and more-so for the purpose of Section 438 of the Code. The allegations have to be prima-facie looked into and while granting the relief of bail be it under Section 438 or 439 of the Code, the act alleged has to be considered keeping in view the gravity of offence, the effect on the society, economy of the State, public health etc.

15. Apart from what has been observed above it may be seen that the charge-sheet, as pointed out above, suggests that both the applicants are absconding/not traceable and non-bailable warrants have been prayed against them. It is also not in dispute that the proceedings under Section 82/83 of the Code have been initiated. It needs no emphasis that one of the considerations for grant of relief under Section 438 of the Code is whether the accused is likely to misuse the liberty of bail. Leaving aside for a moment the non-maintainability of the application under Section 438 of the Code after the filing of the charge-sheet, the petitioners would not be entitled to the relief of bail under Section 438 of the Code as they are absconding/not traceable and proceedings initiated under Section 82/83 of the Code suggesting that during the period of investigation, the applicants did not make themselves available for interrogation/ investigation.

16. The above discussion would reveal that applicants Vijay Aggarwal and Dinesh Aggarwal for more than one reason are not entitled to relief of release before arrest under Section 438 of the Code.

17. None of the above observations shall be construed to mean an expression of opinion on the merits of the questions involved and the above observations are limited only for the present limited purpose. The application for grant of bail under Section 439 of the Code, if filed by the applicants, shall be considered by the court concerned strictly on merits and decided in accordance with law uninfluenced by the observations made in this order.

18. In the result, both the applications are dismissed. Interim order dated 27.1.1999 stands vacated.