Ram Niwas Tyagi And Sham Sunder vs State
2007 Latest Caselaw 1273 Del

JUDGMENT

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 liqur 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 licensee 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 under Section 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-0021 had crossed the Trade Tax Check Post at Panwadi, Mahoba, UP/MP Boarder on 25.03.2006 at 5.55AM Along with 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 Under Section 91 Cr.P.C. 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 consignment 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 under Section 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 under Section 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 in charge 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.

4. According to the prosecution, therefore, for proper and complete investigation, custodial interrogation of these two petitioners is required who are enjoying interim protection in the bail applications filed by them. It is the submission of the State that from other co-accused who were arrested and interrogated, important informations could be extracted from them. However, there is no proper cooperation from these two petitioners, though they were directed to join the investigation by this Court. Therefore, State prays that their bail applications be dismissed and interim protection withdrawn.

5. In the petition filed under Section 482 for quashing of the FIR and proceedings arising there from, the petitioners have attempted to dig holes in the prosecution story on the basis of which their attempt is to show that no case is made out under Section 13(1)(d) of the Prevention and Corruption Act read with Section 120B IPC. Following are the infirmities, according to the petitioners:

(a) It is sought to be argued that the whole story of the prosecution, the timings of the unloading and thereafter diversion of unloaded material as per the timings alleged in the manipulated edited videography is falsified by the statement of Khem Chand, truck driver of Ghanghoria Roadlines who categorically stated that the unloading was done around 3 to 4 PM at Rama Road. This has been malafide avoided to be mentioned in the two status report.

(b) It is also pleaded that statement of Ram Bujharat (driver of TATA-407 Tempo) dated 3.5.06 recorded under Section 164 Cr.P.C. is obviously a coerced testimony. The same is vague and procured. There is no reference to any charges being received for transporting the liquor to various destinations as well as his not being in possession of any paper or any entry in the diary seized. His tempo was seized on 28.4.06 and statement was recorded on 3.5.06. (This statement is part of the documents handed over by the state in the Court during the hearing of bail application of Ashok Kumar). That even the coerced statement of Ram Bhujarath recorded under Section 164 Cr.P.C. described as 'Ramu' in the set of papers supplied on 26.5.06 in the Court, is in sharp contrast with the improved version contained in the FIR inasmuch as according to the said statement, the delivery of the liquor by second truck (MP16H-0021) was made at the bond at 1 PM and unloading was done thereafter while as per FIR the tempos had left the godown with the cartons of liquor at about 11 AM.

(c) The detection of the offence committed took place on 26.3.2006. The FIR was registered on 5.4.2006 for offences under Section 13(1)(d) P.C. Act r/w. 120-B IPC and no provision of Punjab Excise Act was invoked. No interception, searches and seizures were carried out, though the offences were cognizable and alleged illegal IMFL consignment was liable for confiscation and so were the vehicle engaged in transport.

6. Since the matter is still at the investigation stage, time is not ripe for looking into these factual aspects and reappraise the evidence which has come on record in order to find out as to whether prosecution has made out the case against the accused or not, that too in the proceedings under Section 482 of the Cr.P.C. That is the matter which has to be gone into at the appropriate stage, after the charge sheet against all the accused persons are filed by the Trial Court. Therefore, at this stage these arguments do not deserve any consideration and can be argued by the petitioners at the appropriate stage before proper forum.

7. Conscience of this fact Mr. K.K. Sud, learned senior counsel appearing for the accused Shri R.N. Tyagi submitted that even if the facts as stated in the FIR are assumed to be correct, ingredients of offence under Section 13(1)(d) of the Prevention and Corruption Act are not made out and he paraphrased his submissions in support of his plea as under:

A. His first submission was that the act alleged is evasion of excise duty and, therefore, proper course was to invoke the penal provision of Punjab Excise Act, 1914. For this the action could be taken by the Excise Department and not by the Police. He referred to the scheme of Punjab Excise Act and particularly Sections 45 to 51 of that Act which pertain to searches, seizure etc and Sections 61, 64, 69 and 71 of the said Act which deal with violation of provisions of Excise Act, Rules, Notifications and the penalties provided therefore. It was thus submitted that the scheme of Punjab Excise Act would reveal that it was a complete code in itself for the purposes of dealing with matters or acts under the Act and police has no role to entrench on the powers of the Excise Officers reserved under this Act. Submission was that to obviate the provision of the special Act, the whole effort appears to have been made by the Police malafide primarily with a view to establish its supremacy over the excise department's exclusive powers by creating a mock scene. Otherwise matter of evasion of excise duty was not within the competence of police to inquire and determine the liability.

B. In any case mere police allegation of evasion of excise duty could not be a ground to resort to the provisions of the Prevention of Corruption Act and especially when no ingredients of offence under Section 13(1)(d) of the said Act were made out. In support of this plea the learned Counsel sought to draw sustenance from the following judgments:

(i) K.R. Purushothaman v. State of Kerala 2006 (1) SCC (Cri.) 686 wherein the Supreme Court observed as under:

21. To attract the provisions of Section 13(1)(d) of the Prevention of Corruption Act, a public servant should obtain for himself or for any other person any valuable thing or pecuniary advantage by corrupt or illegal means or by abusing his position as a public servant. Therefore, for convicting a person under the provisions of Section 13(1)(d) of the Prevention of Corruption Act, 1988, there must be evidence on record that the accused has obtained for himself or for any other person, any valuable thing or pecuniary advantage by corrupt or illegal means or by abusing his position as a public servant obtains for himself, or for any person, any valuable thing, or pecuniary advantage without any public interest. What we find in the present case is that there is no evidence on record to prove these facts that the appellant-accused had obtained for himself or for any other person any valuable thing or pecuniary advantage. We may clarify that the charge of conspiracy being not proved under Section 120-B IPC, the appellant-accused could not be held responsible for the act done by A-3. The prosecution has failed to prove that he has obtained for himself or for any other person any valuable thing or pecuniary advantage. Similarly, we do not find any evidence on record to convict the appellant-accused under Section 403 and 477-A IPC.

(ii) Alpana Das v. CBI 2006 VII AD (Delhi) 432 decided by this Court holding that if no valuable thing or pecuniary advantage has been derived, the provision of Section 13(1)(d) could not be attracted. The Court observed as under:

...in so far as the question of Section 13(1)(d) of the Prevention of Corruption Act, 1988 is concerned, the same clearly contemplates the deriving of some valuable thing or pecuniary advantage by the public servant either for himself or for someone else. In the present case, no valuable thing or pecuniary advantage has been derived so far to being the conduct of the petitioner under Section 13(1)(d) of the said Act. This is so even as per the facts of the prosecution case.

C. It was argued that extraneous and irrelevant facts have been detailed as culled out on the basis of trumped up investigation including mentioning of conjectures, surmises and raising presumptive arguments which are untenable.

D. Learned Counsel further submitted that no explanation in regard to the following was forthcoming which would expose the hollowness of the prosecution case:

(i) There is no explanation for illegal operation by Anti Corruption Department, in view of lack of power and jurisdiction of the police to enquire into the alleged evasion of excise duty under the law and the Delhi Excise Rules.

(ii) There is no explanation whatsoever for not registering a case under Section 61 of the Punjab Excise Act, which is a bailable offence and effecting seizures if offence was committed in the presence and sight of the police officers who also had prior information.

(iii) There is no explanation for delay of ten days in registering the FIR on 5.4.2006 regarding the alleged incident taking place on 26.3.2006.

(iv) There is a suppression of vital and material fact that on physical inspection and verification carried out by the police on 27.3.2006, no discrepancy in the stocks were found at the bond or any of the vends.

(v) That the alleged diversion is stated to be of Royal Master Liquor' but M/s. Glasgow Distilleries from whom the supply is alleged, only manufactures `Bombay special Whiskey' and 'Superman Fine Whiskey' and as such from the warehouse in question, there could be no supply by way of diversion of these brands and as such there could be no violation of conditions of Transport Permit or evasion of Excise Duty by the Bonded Warehouse as alleged.

E. Insofar as alleged role of the petitioner R.N. Tyagi is concerned the learned Counsel submitted that the petitioner was posted by the Excise department at the bonded warehouse of Glasgow Distilleries Limited situated in the basement of 56, Rama Road where four other bonded warehouses were located. The scope of duties/responsibilities of Excise Inspectors, as assigned vide circular No. F. No. F10/2001-02/IMFL/Ex/12020-80 dated 22.9.2004, was limited to checking/verifying/tallying the stocks as per Permits and to ensure that no goods which are not duty paid are stocked in the bonded warehouse and further that all the goods stocked therein are entered in L-1 Register. It is submitted that the Excise Inspector is not responsible for any act of the owner of the warehouse or his employees, outside the precincts of the warehouse. The petitioner was not required to deal with the goods which were not of the manufacturer at whose warehouse he was posted nor was he to deal with goods not covered by the Import Permit for being brought to the Bonded Warehouse of the manufacturer. Even otherwise from 5.4.06, the entire records of the Excise at the bonded warehouse (including stock and L-1 register) were available in the office and copies furnished to the A.C. Branch by the successors of the petitioner, while most of the Transport Permits and Import Permits were seized by the police on 27.3.06 and other records were also scrutinized by way of inspection and thus no offence is made out.

F. It was also submitted that the alleged claim of videography is extremely doubtful in as much as liquor warehouse was in the basement having bonds of five distilleries. The place where the trucks were allegedly seen by the police party before loading and after unloading, had intervening buildings and offices and similarly the police party was alleged to be in ambush on the other end of the road beyond the entry gate of the bonded warehouse and they could not have seen the operation of loading and unloading. Learned Counsel went to the extent of suggesting that it could have been a trick videography and its originality and authenticity was wholly doubtful. The modus adopted, namely, resorting to videography of the alleged incident is also questioned by learned Counsel by submitting that primary function of the police is prevention and detection of crime. Duties of Police Officer are provided under the various provisions of the Police Act,1861 as well as Delhi Police Act. Instead of apprehending the culprits, if such a thing had happened at all, the police allowed the same to happen and vediographed. It could not be a function of the police as it amounted to allowing the crime to take place rather than preventing the same.

8. At the end, submission was made that even when the matter was at investigation stage this Court could still consider the material collected during on going investigation, in view of the judgment of the Supreme Court in the case of State of West Bengal v. Swapan Kumar Guha and nip the mischief in the bud without allowing the illegality to compound and, therefore, it was a fit case to exercise powers under Section 482 Cr.P.C. as it fell within the parameters of the judgment in the case of State of Haryana and Ors. v. Bhajan Lal and Ors. 1992 Suppl (1) SCC 335.

9. Mr. I.U. Khan learned senior counsel along with Mr. Vikas Arora who made submissions on behalf of Shri Sham Sunder adopted the aforesaid arguments of Mr. K.K. Sud, Senior Advocate. It was additionally submitted that insofar as Sham Sunder is concerned, his duty was to simply receive delivery of cartons sent by the distillery and then the custody of the same is being taken by the excise officials. As and when the permit of Excise duty paid is received by the warehouse then the consignment is sent to the vendor against the aforesaid permit under the supervision and control of Excise Inspector who is permanently stationed at the godown. Not a single bottle of liquor can be taken out from the warehouse without the permission/approval of the Excise Inspector. As far as Mr. Sham Sunder is concerned, he was discharging his function as a Storekeeper of the bonded warehouse and that everything is being kept under the control and surveillance of the Excise Department. Neither Mr. Sham Sunder nor the bonded warehouse are supposed to pay any Excise Duty, inasmuch as it is either paid by the distillery/manufacturer or by the concerned retailer. It was further submitted that in any case it was a fit case for grant of anticipatory bail as in all probability, the Investigating Agency shall not be able to frame a case against the petitioner for any of the offence punishable under the POC Act. The petitioner being a private person, there will not be any applicability of any provision of the POC Act on him. Since it was a case of no evidence and there was no material available with the police, they preferred not to register the case or arrest any of the persons on the day of alleged incident. Mr. Sham Sunder and others have already joined the investigation and extended full cooperation to them and that no recovery is to be affected either from the petitioner or anywhere from the bonded warehouse. He also submitted that it was not a fit case where there was any necessity for custodial interrogation and referred to various judgments wherein the Courts highlighted that only under compelled and grave circumstances such custodial interrogation is necessary and it was not permissible for the police to arrest in a routine manner on a mere allegation of commission of an offence made against a person.

10. Though I have noted the contentions of learned Counsel for the petitioners in extenso, I feel that it is not necessary to deal with these contentions exhaustively and in minute details at this stage. As pointed out above, FIR is registered and matter is at investigation stage. Charge sheet in respect of accused persons has not even been filed so far. According to the prosecution some informations which were required from these two petitioners is not forthcoming which is delaying the completion of investigation and filing of the charge sheet. Be that as it may, it is always proper that such submissions are made at the time when arguments are addressed on framing of the charge before the Trial Court after the filing of the charge sheet and summoning of the accused persons. Tendency to rush to the courts even at the investigation stage and filing petition under Section 482 of the Criminal Procedure Code for quashing of the proceedings is to be deprecated. It is not to say that Courts have no power or that the Courts cannot exercise power under Section 482 of the Cr.P.C. at all. However, it is only in rare cases covered by the parameters laid down by the Supreme Court in Bhajan Lal Case (Supra) that would justify the invocation of such provision.

11. I do not think that it is a case where allegation made in the FIR taken at their face value, do not prima facie constitute an offence under Section 13(1)(d) of the Prevention and Corruption Act read with Section 120B of IPC. I am also of the opinion that it is not a case where allegation in the FIR do not disclose a cognizable offence. I am, therefore, proceeding to discuss the matter only from the touchstone of the aforesaid principles. Reason is obvious. As I feel that it is not a case for interference at this stage, any detailed scrutiny of the respective contentions and observations thereon by me may prejudice either party which this Court should avoid, inasmuch as the petitioners shall have their chance to argue these contentions requiring appropriate consideration thereof by the learned Trial Court.

12. As per the prosecution case matter relates to evasion of excise duty in connivance with Mr. Tyagi, Excise Inspector. What is alleged is that he ensured evasion of the excise duty for some pecuniary advantage/gain. Role of the petitioner Mr. Tyagi in the whole episode, which as per the prosecution is videographed is described in the status report. The case which is set up by the prosecution is that Mr. Tyagi being the Excise Inspector, allowed the same to happen in return for some pecuniary gain. As per the prosecution accused Ram Niwas Tyagi, Excise Inspector has committed an offence under Section 13(1)(d) POC Act by abusing his official position as public servant by omitting to enter into the records a truck which unloaded huge amounts of liquor at the Bond by which excise duty was evaded and wrongful gain/pecuniary advantage was obtained for the Distiller, retailers and for other accused persons. That due to his active omission and commission in connivance with the petitioner Sh. Sham Sunder, the State has been put to a wrongful loss, which runs into lakhs of rupees. The accused Ram Niwas Tyagi, Excise Inspector was posted at the liquor warehouse at 56 Rama Road, Moti Nagar, Delhi as the officer in charge of bonded warehouse. As per circular of the office of Commissioner, Excise, Entertainment and Luxury Tax, GNCT of Delhi issued vide letter No. 12020-80 dated 22.9.2004 all the operations of the bond were under his supervision and control, as officer in charge of the bond. By allowing truck-bearing No. MP-16 H-0021 to unload its Indian Made Foreign Liquor, 609 cartons at the Bonded warehouse of M/s. Glasgow Distilleries Ltd. At 56 Rama Road, Moti Nagar, Delhi on 26.3.2006 and deliberately and in connivance with co accused Sham Sunder, Attorney of Glasgow Distillery, not entering the stock, as per rules, he has provided wrongful gain/pecuniary advantage to the distillery/retailers by evading various taxes on the same. The above stated truck was unloaded in the presence of accused Ram Niwas Tyagi, Excise Inspector which has been videographed by surveillance team and witnessed by the punch witnesses. Further, this unaccounted liquor, equal to one truck load Indian Made Foreign Liquor was dispatched to various retailers in tempos from the bond, the same day. This has also been videographed and witnessed by punch witness. The allegation is that the Petitioner Shri R.N. Tyagi, Excise Inspector, was officer in charge of the Bond posted there to prevent the illegal activities. Instead of doing his duty, he actually connived with the petitioner Sh. Sham Sunder and indulged in illegal activities resulting into the wrongful gain to the accused persons and wrongful loss to the State. Section 13(1)(d) of the Prevention and Corruption Act is in the following terms:

13. Criminal misconduct by a public servant- (1) A public servant is said to commit the offence of criminal misconduct-

(a)...

(b)...

(c)...

d) if he,-

(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest;....

I am, therefore, of the view that at this stage investigation cannot be thrown out accepting the plea that he can not be charged under the POC Act.

13. Insofar as Sham Sunder is concerned, allegation is that two connived with him. It is also mentioned that Sham Sunder is the holder of power of attorney on behalf of Shri Sushil Kedia, former Director M/s. Glasgow Distilleries Ltd. As per the said power of attorney he is given vast powers to deal with all the Departments in the Excise Office. He is also authorised to apply for, obtain, sign, renew, arrange for various license/permits/pass and such like documents required under provision of Punjab Excise Act 1914. He is also authorised to collect payments through cheques/DD EVCs from the concerned departments.

Therefore, he is not simply a small time employee of the said distillery as projected by him. The prosecution alleges that Shri Sham Sunder was obtaining Import Permit from the Excise Department, Govt. of Delhi for import of liquor from the Glasgow Distilleries, Santa to Warehouse at Delhi. He was also responsible for maintaining the record of the liquor received from the Distillery and its dispatch to the liquor vends in Delhi. As per the Excise Manual, as soon as the liquor consignment is received, the licensee (accused Shyam Sunder, in this case) shall inform the Area Excise Inspector (Ram Niwas Tyagi in this case) and the District Excise Officer. The area Excise Inspector shall verify the consignment with reference to the export pass issued by the exporting State and the import permit given to the licensee by Excise Office Delhi. Any discrepancy found therein will be brought to the notice of the District Excise Officer. Some specimen samples should also be drawn and got tested. During the search of the Glasgow Distillery Warehouse at 56, Rama Road, Moti Nagar, Delhi, it was found that original records pertaining to the receipt of liquor from the Distillery and dispatch of liquor from Warehouse to liquor vends were missing from the Warehouse. Shri Ganpati Rai, Excise Inspector posted at the Bond now, told that Bonded Warehouse of M/s. Glasgow Distillery Ltd. Is closed since 22.4.2006. There is no original record of March, 2006 of M/s. Glasgow Distillery Ltd. Sh. Shyam Sunder, Attorney and Sh. R.N. Tyagi Excise Inspector can tell about this record of the bond. Investigating Officer has to recover the record from Shri Shyam Sunder and Sh. R.N. Tyagi. It is alleged that Shyam Sunder is the main conduit between distillery owner and officials of excise department, namely Sh. R.N. Tyagi and others with whose connivance and active participation large amount of excise duty evasion is taking place thereby obtaining pecuniary advantage to the distillery owner and other accused persons.

14. On the basis of these allegations it cannot be said that even if Sham Sunder is not a government employee he can be charged under Section 120B of the IPC along with Shri Tyagi.

15. Some of the discrepancies which are pointed out by the petitioner are sought to be explained by the prosecution including the delay of 10 days in lodging the FIR as well as non-arrest of the two petitioners. As per the prosecution R.N. Tyagi/Sham Sunder and Sh. Khushal Singh were not arrested on 26.3.2006 and IMFL was not seized on 26.3.2006 because an Excise mafia was to be unearthed.

16. It is stated at the cost of repetition that these are the questions which could conveniently be gone by the learned Trial Court at the time of considering the question of framing of charge.

17. The upshot of the aforesaid discussion is that Crl. M.C. Nos. 2788 and 2446 of 2006 fail and are accordingly dismissed.

18. Insofar bail applications of the two petitioners are concerned, Mr. Tyagi was given interim protection. Mr. Tyagi was asked to cooperate with I.O. by joining the investigation. Most of other accused persons were arrested and after interrogation given bail subsequently. In the case of these two petitioners as per the status report filed, the prosecution states that the two petitioners have not disclosed anything about the crime i.e. holding and unholding of IMFL from the truck at bonded ware house in Delhi and they have also not handed over the relevant documents such as stock register, 11 register etc. Taking into the totality of the circumstances, I feel that in a case like this the petitioners be not granted anticipatory bail. In the case of State v. Anil Sharma 1997 SCC (Cr.) 1039 the Supreme Court observed:

We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation oriented than questioning a suspect who is well ensconced with a favorable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring may useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulted by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The court has to be presume that responsible police offices would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders.

19. I, therefore, dismiss the bail applications of the petitioners as well.