Central Bureau Of Investigation vs Ram Swaroop Chandel & Ors.
2020 Latest Caselaw 2765 Del

$~1
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                    Reserved on:       10.09.2020
                                    Pronounced on:     30.09.2020

+     CRL.REV.P.1100/2019

      CENTRA L BUREAU OF INVESTIGATION          ..... Petitioner
                   Through: Mr.Anil    Grover,    SPP        with
                            Mr.Shivesh Pal Singh & Mr.Mishal
                            Vij, Advs.

                        versus

      RAM SWAROOP CHANDEL & ORS.               ..... Respondents
                  Through: Respondent no.1 in person.

      CORAM:
      HON'BLE MR. JUSTICE SURESH KUMAR KAIT

                           JUDGMENT

1. Present petition has been filed under section 397 read with section

401 Cr.P.C. on behalf of the petitioner (CBI) against the order dated

19.01.2019 passed by the learned Special Judge (PC Act), Tis Hazari

Courts, New Delhi in case titled as "CBI vs. Ram Swaroop Chandel &

Ors." in R.C. No.RC DAI 2018-A-0008, C.C. No.06/2018.

2. The present case bearing no. RC-DAI-2018-A-0008 was registered on

the basis of a source information against Sh. Ram Swaroop Chandel (A-1),

DGM (Technical), Delhi Milk Scheme, Delhi; Sh.Sudhir Khera (A-2) of

M/s Tasty Dairy Specialities Ltd.; Sh. Ashok Kumar (A-3) of M/s Aman

Dairy and unknown others under Sections 120-B IPC read with Section 7

and 12 of the Prevention of Corruption Act 1988. As per the allegations,

Ram Swaroop Chandel (A-1) who was as DGM (Technical)/Manager

Procurement, Delhi Milk Scheme, Delhi and used to supervise the

procurement of milk through various agencies/ federations in U.P., Punjab,

Haryana & Rajasthan besides local co-operative societies. The said accused

was indulging in corrupt and illegal activities in connivance with various

private parties to whom DMS has awarded contract supply of milk. Further,

as per the allegations M/s. Tasty Dairy, Specialities Limited,

owned/managed by Sh. Arpit Mehra, located at D-3, UPSIDC Industrial

Area, Jainpur, Kanpur Dehat, U.P and Aman Dairy owned/ managed by

Ashok Kumar (A-3) of Alwar are amongst two of the suppliers of milk to

Delhi Milk Scheme (DMS). It is also alleged that Sudhir Khera (A-2) was

associated with Tasty Dairy Specialities Limited and besides pursuing the

matters of Tasty Dairy Specialities Limited, he has also been regularly

liasioning on behalf of Sh. Ram Swaroop Chandel with other dairy owners

including Sh. Ashok Kumar of Aman Dairy. Sudhir Khera (A-2) has been

demanding illegal gratification for Ram Swaroop Chandel (A-1) in lieu of

acceptance of substandard milk, facilitating hassle free acceptance of milk

in DMS, getting excess supply approved for passing the pending bills and

for awarding further milk supply contract to Ashok Kumar (A-3) of M/s

Aman Dairies in the upcoming tenders of March 2018. Further, Sudhir

Khera (A-2) retained a portion of the illegal gratification so collected from

the milk suppliers for himself and balance amount of bribe was kept for

Ram Swaroop Chandel as per his demand who periodically collected the

aforesaid illegal gratification from Sudhir Khera, with whom he had official

dealings. In furtherance to the conspiracy, illegal gratification has been

provided to Sudhir Khera (A-2) by Ashok Kumar (A-3) of Aman Dairy on

27.02.2018 for making further payment to Ram Swaroop Chandel (A-1) in

Delhi. A source information was received that Sudhir Khera (A-2) is likely

to further deliver the installment of the illegal gratification collected from

Ashok Kumar (A-3) of M/s Aman Dairy to Ram Swaroop Chandel (A-1) on

27.02.2018 at evening in Moti Nagar area of Delhi.

3. After registration of the case, a team of CBI officials and independent

witnesses was constituted for laying the trap on 27.02.2018. At about 5:00

PM the trap was laid and Ram Swaroop Chandel (A-1) and Sudhir Khera

(A-2) were apprehended and arrested from Moti Nagar, New Delhi. From

the possession of Ram Swaroop Chandel (A-1), Rs.86,000/- (Rupees Eighty

Six Thousand only) were recovered and Sudhir Khera (A-2) disclosed that

he paid commission to accused Ram Swaroop Chandel after which the said

amount was seized. During interrogation, Sudhir Khera (A-2) also disclosed

that he was having some money with him as part of his commission which

he had received from Ashok Kumar (A-3). Pursuant to his disclosure, a sum

of Rs.26,500/- was recovered from his purse which amount was duly seized.

Ashok Kumar (A-3) was thereafter apprehend and he admitted having paid

Rs.1,12,500/- to Sudhir Khera (A-2) on 27.02.2018 near Naraina Industrial

Area, Delhi for further payment to Ram Swaroop Chandel (A-1) as illegal

gratification.

4. The case of the prosecution is that during the investigations, the

telephonic conversations held between the accused persons i.e. Ram

Swaroop Chandel (mobile nos. 9968275046, 9910554671 & 817635488),

Sudhir Khera (mobile nos. 9810483843 and 7683059641) and Ashok

Kumar (mobile no. 9928533501) were recorded and intercepted. According

to the prosecution, the investigations conducted so far established that Ram

Swaroop Chandel (A-1) was exerting undue pressure on Manager

(Procurement) and other staff for showing undue favours to milk tankers of

M/s Aman Dairy. As per the allegations, the conversation between Ram

Swaroop Chandel (A-1) and Ashok Kumar (A-3) shows that the former is

found advising/guiding the latter how to fill up the upcoming tender and

Ram Swaroop Chandel (A-1) has conveyed about the extension of milk

supply contract for a period of ninety days w.e.f. 01.01.2018 to Sudhir

Khera (A-2) before an order for the same was issued. Ram Swaroop

Chandel (A-1), Sudhir Khera (A-2) and Ashok Kumar (A-3) entered into

criminal conspiracy, in pursuance to which Ashok Kumar (A-3) delivered

the bribe amount of Rs.1,12,500/- to Sudhir Khera (A-2) who retained his

commission of Rs.26,500/- out of the said bribe amount and thereafter

delivered the remaining bribe amount of Rs.86,000/- to Ram Swaroop

Chandel (A-1), which was recovered during the trap proceedings from

accused persons. The case of the prosecution is that the bribe amount was

paid to Ram Swaroop Chandel (A-1) for showing undue favour to milk

suppliers i.e. M/s Aman Dairy and M/s Tasty Dairy Specialities Limited for

supply of milk to DMS and further extension of milk supply contract. Thus,

registered the present case under Section 120-B IPC read with Section

7/12/13(2) r/w 13(l)(d) of the Prevention of Corruption Act 1988 and

substantive offences thereof.

5. Learned counsel appearing on behalf of the petitioner CBI submitted

that the impugned judgment is contrary to law, evidence placed on record of

the case and there is sufficient oral and documentary evidence which is

cogent, reliable and consistent to establish the charge of offence punishable

under section 120-B IPC and section 7, 12 and 13(2) r/w 13(1) (d) of PC

Act, 1988 and substantive offences thereof against the Respondents/

accused. However, the Ld. Special judge wrongly construed the provisions

of section 13(2) r/w 13(l)(d) of PC Act, 1988, which pertain to criminal

misconduct by a public servant wherein he, by corrupt or illegal means or

by abusing his official position as a public servant or while hold office as a

public servant, obtains for himself or for any person, any valuable

thing/pecuniary advantage.

6. Further submitted that Ld. Special judge had failed to appreciate that

the case was filed on the basis of source information and the bribe giver is

also accused in the case. The recovery of the bribe amount, during trap from

the accused public servant Ram Swaroop Chandel, DGM(T), DMS, is not

doubtful as same is supported by the telephonic conversation produced in

the form of transcription before the Court and in the form of electronic

evidence. The reasoning of Ld. Special judge that no DA case was made out

after the house search of accused Shri Ram Swaroop Chandel, is not

sustainable and is in fact irrelevant. The Court had wrongly

rejected/disbelieved the evidence of LW-4 Shri Deepak Kumar Chaudhary,

LW-5 Shri Jitender Kumar and LW-7 Dr. Chetan Prakash, regarding the

influence exercised by Ram Swaroop Chandel (A-1) to give undue benefit

to Ashok Kumar (A-3).

7. Learned counsel for the petitioner further submitted that the recovery

of the bribe amount in presence of the independent witnesses was wrongly

disbelieved by the Court without giving the prosecution any opportunity to

produce these witnesses during trial. The disclosure and recovery of the

bribe amount was at the same time and there was no time to get voluntarily

disclosure from the accused person. The reasoning given by the Court that

no recovery was made out from Ashok Kumar (A-3) is not sustainable on

the facts and circumstances of the present case, due to the reason that he was

the bribe giver and had handed over the bribe amount to Sudhir Khera (A-

2), who was caught during the trap while delivering the bribe amount to

Ram Swaroop Chandel (A-1). The circumstances which led to non-

preparation of recovery memo on the spot have been properly explained by

the Investigating Officer in recovery memo dated 27.02.2018 as

immediately after recovery of the bribe amount, Ram Swaroop Chandel (A-

1) lost his control and started hurling abuses at the CBI team and used force

in a bid to get himself free. He was appropriately controlled by using legal

force. Since, it was a busy market place and large crowd started gathering,

hence it was not conducive to remain there, and therefore, it was decided to

leave the spot for the safety of CBI trap team and accused persons.

8. In addition to above, non-collection of CCTV footage, does not in

any way cast any doubt on prosecution evidence. The CCTV footage is only

supporting evidence. Moreover, the non-examination of known persons of

Ram Swaroop Chandel (A-1) is not fatal to the case of prosecution. But the

reasoning of the Court that no departmental enquiry/complaint was filed

against the accused person, is not sustainable and is in fact irrelevant.

9. Learned counsel submitted, that it is settled law that the Court is not

supposed to make roving enquiry at the stage of framing of charge. The

judge is not to delve into detailed evidence but it is sufficient for framing of

charge if there is strong suspicion of accused persons having committed the

crime. The same has been decided by the Hon'ble Supreme Court, in the

case of State of Bihar v. Ramesh Singh: (1977) 4 SCC 39, wherein it was

observed that at the stage of framing of charge, it is not obligatory for the

Judge to consider in any detail and weigh in a sensitive balance whether the

facts, if proved, would be incompatible with the innocence of the accused or

not. At that stage, the Court is not to see whether there is sufficient ground

for conviction of the accused or whether the trial is sure to end in his

conviction. Strong suspicion, at the initial stage of framing of charge, is

sufficient to frame the charge. The aforesaid view was also followed in the

case of State of Orissa vs. Debendra Nath Padhi: AIR 2005 SC 359.

10. While concluding arguments, learned counsel submitted that in the

present case, the evidence on record as produced by the CBI, clearly makes

out a case against the respondents under section 120-B IPC and section 7,

12 and 13(2) r/w 13(1) (d) of PC Act, 1988. However, the impugned order,

to the extent assailed in the present revision, is contrary to law as having

been passed in complete disregard of the settled legal principles and

therefore, deserves to be set aside as such.

11. On the other hand, Ram Swaroop Chandel (A-1), who had moved an

application before the Trial Court for discharge, appeared in person and

submitted that the present F.I.R. was got registered under connivance and

collusion with corrupt officials of Delhi Milk Scheme, against whom he had

raised voice for their illegal activities and financial irregularities causing

thereby financial loss to the Government of India. He has been upright and

dead honest person, at his end proceeded for appropriate actions against

such corrupt officials by way of several representations and in-fact the

accused paid price for acting as a whistle blower against ongoing

misappropriate and malafide functioning of senior officials of Delhi Milk

Scheme. Thus, he became victim of aforesaid collusion and got involved in

the present FIR without any rhyme and reason, which resulted into his arrest

and detention.

12. Regarding the allegation that respondent no.1 (A-1) was exerting

undue pressure on Manager (Procurement) and other staff for showing

undue favours to milk tankers of M/s Aman Dairy, is concerned, said

respondent has argued that as per the guidelines of Organization and the

duty assigned to him was to ensure hassle free and running of milk plant at

its maximum capacity and supply of the milk and milk products to its end

users. However, there is no incriminating evidence which would prima facie

show the undue influence over staff of the DMS for malafide intentions of

accused (A-1). Moreover, it was for the interest of the organization to get

preference of milk tankers having higher fat because of its high profitability

and that was only possible if all such tankers parked inside the central dairy

are in the knowledge of the Quality Control Staffs as well as the Weigh

Bridge Staff.

13. Insofar as the allegation that the conversation between Sudhir Khera

(A-2) and Ashok Kumar (A-3) dated 01.02.2018 shows that Sudhir Khera

(A-2) discussed with Ashok Kumar (A-3) that the two firms i.e. Tasty Dairy

and Aman Dairy had the blessings of the accused public servant.

Mr.Chandel (A-1) has argued that in the commercial organizations like

DMS and more particularly the nature of job, the accused is assigned for

required higher degree of proficiency and efficiency to evaluate the

purchases of raw materials like milk, milk products, etc. from cost point of

view and further feedback from the market and for that purpose, there is a

need of cordial relations with the suppliers/ stake holders/ vendors. He had

maintained cordial relation with all the existing milk suppliers including

Tasty Dairy and Aman Dairy without having any point of partiality within

the suppliers. He has not given any undue benefits more particularly in

context of financial benefits to M/s. Tasty Dairy and M/s. Aman Dairy

thereby causing any single loss of penny to the organization/ Government of

India. Rather, the organization (DMS) has earned more profit by way of

getting additional fat as well as saving of handling/ processing losses.

14. Insofar as the allegation that in the conversation between respondent

no.1, Ram Swaroop Chandel (A-1) and Ashok Kumar (A-3), the former is

found advising/ guiding the latter how to fill up the upcoming tender, is

concerned, Mr.Chandel argued that being in a government department, it is

essential as well as mandatory for the officer (s), who have been associated

with decision making process to guide the vendors/stake holders/suppliers to

supply milk and to actively participate in the tender process so that the

organization could get the required milk vendors/ suppliers as per the

requirement of quality milk having higher contents of Fat/SNF (Solid Not

Fat). Such type of guidance are very common in the commercial

organization(s) like DMS so that the vendors/suppliers could get

opportunity to sell their quality products and on the other hand, the

organization could get best possible quality raw materials as per its daily

requirement.

15. With regard to the allegation that Ram Swaroop Chandel (A-1) has

conveyed about the extension of milk supply contract for a period of ninety

days w.e.f. 01.01.2018 to accused Sudhir Khera before an order for the same

was issued, it is argued that purchases of milk and other products in DMS,

are through e-procurement tendering process and in the existing system,

there was no alternative except to extend the existing tender of milk

suppliers since tender for the year 2018 (i.e. January to December) was not

finalized due to administrative reasons and it was well known fact to every

officials of DMS that extension shall be granted to all the existing milk

suppliers for the year 2018 which was not a secret or confidential matter.

9. Insofar as the allegations of conspiracy and alleged telephonic

conversation are concerned, he (A-1) argued that the search was conducted

at the spot on 27.02.2018 near Milan Cinema, Moti Nagar during which

only currency notes of Rs.4,630/- was found from his possession and the

search memo was prepared accordingly which bear the signature of

witnesses as well as the accused. However, the alleged recovery of

Rs.86,000/- from the possession of the accused is false, manufactured and

the improved version of the investigating agency since the documents

showing alleged recovery of Rs.86,000/- does not bear signature of the

accused whereas the search memo mentioning the details of Rs.4,630/- bear

the signature of the accused. Thus, two distinct and different recovery

memos for same search is negating each other more particularly for the

reason that the subsequent recovery memo find no mention of recovery of

Rs.4,630/- and the entire story false flat in the eyes of law.

10. Regarding the transcript of telephonic conversation filed along with

the charge sheet is concerned, Mr.Chandel (A-1) has argued that there is no

whisper of the demand and acceptance of money in the said transcripts. On

reading of the transcripts do not provide remote apprehension that alleged

demand and acceptance of money ever taken place and has fairly conceded

that he requested to provide good quality Milk Cake and mawa to be used in

upcoming festival of Holi at his own cost.

16. Finally argued that the present FIR along with charge sheet does not

have sufficient evidence to substantiate the offence as alleged and the

present case is based upon suspicion which miserably failed to cast

reasonable doubt against the integrity as well as alleged corrupt practice on

part of the accused R.S. Chandel (A-1). Thus, the evidence filed along with

the charge sheet, if treated as authentic, does not corroborate the alleged

offence and is insufficient for the purpose to conduct further trial.

17. I have heard arguments on behalf of the learned SPP for the CBI and

respondent in person at length and perused the impugned order and material

available on record.

18. It is not in dispute that the demand of illegal gratification is sine qua

non to constitute the offence under Section 7 of the Prevention of

Corruption Act and mere possession and recovery of currency notes from

the accused without proof of demand will not bring home the offence under

Section 7 of the Prevention of Corruption Act, unless it is proved beyond all

reasonable doubt that the accused voluntarily accepted the money knowing

it to be bribe. The demand of illegal gratification has to be specific and the

proof of demand of illegal gratification is the gravamen of the offence under

Sections 7and 13(l)(d)(i)&(ii) of the Prevention of Corruption Act, 1988 and

in absence of the same the charge under the said provisions would fail. Mere

acceptance of any amount allegedly by way of illegal gratification or

recovery thereof, dehors the proof of demand, ipso facto, would thus not be

sufficient to bring home the charge under these two sections of the Act.

19. In the case of B. Jayaraj vs. State of A.P.: (2014) 13 SCC 55, the

Hon'ble Supreme Court has observed as under:

"........7. In so far as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration reference may be made to the decision in C.M. Sharma Vs. State of A.P. and C.M. Girish Babu Vs. C.B.I.

8. In the present case, the complainant did not support the prosecution case in so far as demand by the accused is concerned. The prosecution has not examined any other witness, present at the time when the money was allegedly handed over to the accused by the complainant, to prove that the same was pursuant to any demand made by the accused. When the complainant himself had disowned what he had stated in the initial complaint (Exbt.P-11) before LW-9, and there is no other evidence to prove that the accused had made any demand, the evidence of PW-1 and the contents of Exhibit P-11 cannot be relied upon to come to the conclusion that the above material furnishes proof of the demand allegedly made by the accused. We are, therefore, inclined to hold that the learned trial court as well as the High Court was not correct in holding the demand alleged to be made by the accused as proved. The only other material available is the recovery of the tainted currency notes from the possession of the accused. In fact such possession is admitted by the accused himself. Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7. The above also will be conclusive in so far as the offence under Section 13(1)(d)(i)(ii) is concerned as in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established.

9. In so far as the presumption permissible to be drawn under Section 20 of the Act is concerned, such presumption can only be in respect of the offence under Section 7 and not the offences under Section 13(1)(d)(i)(ii) of the Act. In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Proof of acceptance of illegal

gratification can follow only if there is proof of demand. As the same is lacking in the present case the primary facts on the basis of which the legal presumption under Section 20 can be drawn are wholly absent........."

20. In the case of P. Satyanarayana Murthy vs. Distt. Insp. of Police &

Anr. in Criminal Appeal No.31 of 2009 decided on 14.09.2015, the Hon'ble

Supreme Court has observed as under:

".........19. In State of Kerala and another vs. C.P. Rao (2011) 6 SCC 450, this Court, reiterating its earlier dictum, vis-à-vis the same offences, held that mere recovery by itself, would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained.

20. In a recent enunciation by this Court to discern the imperative pre-requisites of Sections 7 and 13 of the Act, it has been underlined in B. Jayaraj (supra) in unequivocal terms, that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Sections 7 as well as 13(1)(d)(i)&(ii) of the Act. It has been propounded that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence under Sections 7 and 13 of the Act. Qua Section 20 of the Act, which permits a presumption as envisaged therein, it has been held that while it is extendable only to an offence under Section 7 and not to those under Section 13(1)(d)(i)&(ii) of the Act, it is

contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of illegal gratification, it was emphasized, could follow only if there was proof of demand. Axiomatically, it was held that in absence of proof of demand, such legal presumption under Section 20 of the Act would also not arise.

21. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i)&(ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act.

22. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 or 13 of the Act would not entail his conviction thereunder."

21. In the case of A. Subair vs. State of Kerala, the Hon'ble Supreme

Court has discussed that "while dwelling on the purport, the section 7 and

13 of the Act ruled that the prosecution has to prove the charge beyond

reasonable doubt like any other criminal offence and that the accused

should be considered to be innocent till it is established otherwise by proper

proof of demand and acceptance of illegal gratification, which are vital

ingredients necessary to be proved to proof a conviction."

22. In addition, in the case of N.Sunkanna vs. State of A.P.: (2016) 1

SCC 713, the Hon'ble Supreme Court has held as under:

"5........It is settled law that mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7, since demand of illegal gratification is sine- qua-non to constitute the said offence. The above also will be conclusive insofar as the offence under Section 13(1)(d) is concerned as in the absence of any proof of demand for illegal gratification the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established. It is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Unless there is proof of demand of illegal gratification proof of acceptance will not follow. Reference may be made to the two decisions of three- Judge Bench of this Court in B. Jayaraj vs. State of Andhra Pradesh [(2014) 13 SCC 55] and P.

Satyanarayna Murthy vs. The District Inspector of Police and another [(2015 (9) SCALE 724]."

23. In Sujit Biswas vs. State of Assam: (2013) 12 SCC 406, the Court has

held as under:

"The reiteration of the golden principle runs through the web of the administration of justice in criminal cases has been done. It has further been held that suspicion, however grave, cannot take the place of proof and the prosecution cannot afford to rest its case in the realm of "may be" true but has to upgrade it in the domain of "must be" true in order to steer clear of any possible surmises or conjectures. Thus, on the material on record when judged on the touch stone of legal principles adumbrated hereinabove, leave no manner of doubt that the prosecution, in the instant case, has failed to prove unequivocally, the demand of illegal gratification."

24. Undisputedly, when there is no demand by accused, mere recovery

itself could not be a ground for conviction. As far as the recovery of treated

note is concerned, if the demand is not proved beyond all reasonable doubt

recovery would be of no consequence. However, mere recovery of tainted

money, divorced from the circumstances under which it is paid, is not

sufficient to convict the accused when the substantive evidence in the case is

not reliable. Mere recovery by itself cannot prove the charge of the

prosecution against the accused in the absence of any evidence to prove the

payment of bribe or to show that the accused voluntarily accepted the money

knowing it to be illegal gratification.

25. Section 20 of the Prevention of Corruption Act, which reads as under:

"20. Presumption where public servant accepts gratification other than legal remuneration.--(1) Where, in any trial of an offence punishable under section 7 or section 11 or clause (a) or clause (b) of sub- section (1) of section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be, without consideration or for a

consideration which he knows to be inadequate. (2) Where in any trial of an offence punishable under section 12 or under clause (b) of section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7, or as the case may be, without consideration or for a consideration which he knows to be inadequate.

(3) Notwithstanding anything contained in sub-sections (1) and (2), the court may decline to draw the presumption referred to in either of the said sub-sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no interference of corruption may fairly be drawn."

26. In view of above settled principles of law, coming first to the aspect

of recorded telephonic conversations, in the case in hand, the words Mawa/

Milk Cake are being used pseudonymously for demand. The relevant

portions of the recorded conversations on which the prosecution is placing

its reliance are reproduced as under:

27. Learned Trial Court has opined that the said call cannot be read in

isolation. There is no evidence to show that the words,

were being used in the context of money/demand.

28. Accordingly, learned Trial Court was of the view that the case of the

prosecution is that the word "Milk Cake" is being pseudonymously used for

money is totally unfounded since R.S. Chandel (A-1) has specifically asked

to Sudhir Khera (A-2) in the context of milk-cake as to who is the person

who prepares the same well after which Sudhir Khera (A-2) has explained

that it has to come from Rajasthan. He further says that the demand for milk

cake is of 2 kg. It cannot, under any circumstances, be assumed to be used

pseudonymously for demand of money.

29. The Court recorded that in this conversation also the word milk-cake

cannot be assumed to be used pseudonymously for demand of money since

the accused Sudhir Khera (A-2) says that because of summer season there is

a delay of milk cake since the said milk cake has to come from village.

30. The Trial Court was of the view that again the word milk-cake cannot

be used for demand of money. The case of R.S. Chandel (A-1) that the milk-

cake was required on account of Holi festival, stand established from the

above conversation where R.S. Chandel (A-1) has not only asked for milk-

cake but also for Mawa (both milk products) and has stated that because of

Holi there should be no compromise with the same and later on he reiterated

that apart from the milk-cake he required mawa. R.S. Chandel (A-1) further

says that he needs 2 kg of mawa along with Milk Cake and Sudhir Khera

(A-2) should ensure about the availability of Mawa (milk product) in

addition of the milk-cake which should be of prepared well (Badhiya

Banaye Mawa). The court observed that how the prosecution can link this

with a demand for money.

31. Learned Trial Court observed that no demand of any kind is reflected

from the above conversation likewise other conversations are also of the

same nature.

32. The only incriminating words attributed to R.S. Chandel (A-1) are in

call No.19 dated 23.12.2017 at 18:21:49 hours as under:

33. The Trial Court interpreted the above conversation that Sudhir Khera

(A-2) is telling his wife that R.S. Chandel (A-1) was owing Rs.40,000/- to

Rs.50,000/- to him (Sudhir Khera) (not vice-versa). However, there was a

normal business transaction between Sudhir Khera (A-2) with Delhi Milk

Scheme where R.S. Chandel (A-1) was the concerned officer. Accordingly

observed, under what circumstances, this amount was being paid is not

clear. Hence, if read in context of earlier conversation it is evidence that

R.S. ChandeI (A-1) has been placing the order for milk cake and mawa of

small quantity for quite some time. This explains the background under

which R.S. Chandel (A-1) owes Rs.40,000/- to Rs.50,000/- to Sudhir Khera

(A-2). In the entire conversation Sudhir Khera (A-2) does not say that he has

paid any amount to R.S. Chandel (A-1) pursuant to any demand. Rather, he

is very clear that it is R.S. Chandel (A-1) who owes Rs.40,000/- to

Rs.50,000/- to him. Thus, there is no demand of illegal gratification by

accused R.S. Chandel (A-1) as alleged by the prosecution when as per

Sudhir Khera himself it is accused R.S. Chandel who owes him money and

not him.

34. Learned Trial Court further opined that it is evident from the

telephonic conversations as above which cannot be read in isolation and

have to be read in context inferred from the conversation preceding the use

of said words and succeeding the same. When these conversations are in

context as a whole, it is writ large that they do not suggest that the words

Milk Cake/Mawa were being used pseudonymously for money, rather the

said words are used in context of milk products. It is an admitted case of the

prosecution that there is a supply of milk products to the Delhi Milk Scheme

and it is apparent from the said conversations that R.S. Chandel (A-1)

wanted some milk product of 2 kg which Sudhir Khera (A-2) had to procure

from the market. The words used in the conversations i.e. ".....

confirm that it is regarding the preparation of milk

product and the demand is genuinely for milk cake/ Mawa. The argument of

the Ld. Special PP (before Trial Court) that the words Milk cake/ Mawa

were being pseudonymously used as money/ bribe is only a presumption.

Neither any accused has disclosed that these words were used for

consideration or money nor it has been alleged by any persons. The

presumptions have solely been drawn by the Investigating Officer without

any cogent material on record in this regard.

35. It is pertinent to mention here that search of the house of R.S. Chandel

(A-1) was conducted and nothing incriminating was recovered. Further,

there are no allegations of disproportionate assets. Had it been a case where

R.S. Chandel (A-1) was regularly receiving illegal gratification of

Rs.40,000/- to Rs.50,000/- from his co-accused and others, as alleged by the

prosecution, CBI would have unearth his disproportionate assets and would

have laid their hands on the unaccounted money which is not the present

case.

36. In addition, none of the witnesses, including the independent

witnesses Mukul and Shakti Singh and also the Trap Laying Officer have

stated in their statements recorded under Section 161 Cr.P.C. about any

demand of illegal gratification, exchange of illegal gratification and

acceptance of alleged illegal gratification and there is absolutely no evidence

on record to the effect that what transpired between R.S. Chandel (A-1) and

Sudhir Khera (A-2) at the spot of alleged incident. Moreover, there is no

witness who has alleged that the words Milk-Cake or Mawa were

pseudonymously used for demand of money or that such a demand was

made by R.S. Chandel (A-1) in lieu of favours.

37. It is also pertinent to mention here that there is no material on record

whatsoever even to show prima facie that the accused R.S. Chandel had put

any undue influence over the staff of Delhi Milk Scheme as alleged. In fact,

the present case is totally based upon the telephonic conversations between

the accused persons. Further, the loss to the institution (Delhi Milk Scheme)

has not been alleged nor quantified, nor it is the case of the prosecution that

the Delhi Milk Scheme has suffered any loss on account of any act of the

accused R.S. Chandel. In fact, there is nothing to even prima facie show that

the accused R.S. Chandel has given any undue benefits more particularly in

context of financial benefits to M/s. Tasty Dairy and M/s. Aman Dairy.

38. Case of the prosecution is that when R.S. Chandel (A-1) and Sudhir

Khera (A-2) were apprehended, an amount of Rs.86,000/-. was recovered

from R.S. Chandel (A-1) and a sum of Rs.26,500/- was recovered from

Sudhir Khera (A-2) which is highly incriminating qua them. The Recovery

Memo dated 27.02.2018 (D-3) and the statements of witnesses Shakti Singh

(PW-1), Mukul (PW-2) and TLO Inspector Harish Chander (PW23), the

above evidence i.e. the alleged disclosure of Sudhir Khera (A-2) is

inadmissible in evidence being hit by the provisions of Section 27 of Indian

Evidence Act, having been made in police custody.

39. As per the provisions of Section 27 of Evidence Act, which is in the

nature of a proviso to Section 26 of the Act, to the extent it is relevant, when

any fact is deposed to as discovered in consequence of information received

from a person accused of any offence, in the custody of a police officer, so

much of such information, whether it amounts to a confession or not, as

relates distinctly to the fact thereby discovered, may be proved. Thus, the

requirement of law is that before the fact discovered in consequence of an

information received from an accused is allowed to be proved, he (accused)

needs to be in the custody of a police officer.

40. Section 3 of the Indian Evidence Act explains the meaning of the

word Fact. It provides that a fact means and includes:

i. Anything, state of things, or relation of things, or capable of

being perceived by the senses,

ii. Any mental condition of which any person is conscious.

41. It further provides five illustrations as to what would constitute a fact

which are as under:

a. That there are certain objects arranged in a certain order in a

certain place, is a fact;

b. That a man heard or saw something, is a fact;

c. That a man said certain words, is a fact;

d. That a man holds a certain opinion, has a certain intention, acts in

good faith, or fraudulently, or uses a particular word in a particular

sense, or is or was at a specified time conscious of a particular

sensation, is a fact'

e. That a man has a certain reputation, is a fact.

42. Accordingly, learned Trial Court was of the view that a co-joint

reading of Section 3 and Section 27 of Evidence Act would apply that as

much of the statement as would relate to the discovery of fact connected

with the accused would be admissible in evidence. The discovery of the fact

is not only the discovery of the articles but also the discovery of the fact that

the articles were kept by a particular accused at a particular place because in

principle there is no difference between the statement made by the accused

to the effect that "I will show you the person to whom I have given the

articles" and the statement that "I will show you the place where I have kept

the articles".

43. The Hon'ble Supreme Court in the case of K. Chinnaswamy Reddy

vs. State of A.P.: AIR 1962 SC 1788 had exhaustively discussed the scope

and ambit of Section 27 of the Evidence Act and had considered the

question as to whether the statement of the accused to the effect that "he had

hidden them (the ornaments)" and "would point out the place", where they

were, is wholly admissible in evidence under Section 27 or only that part of

it is admissible where he stated that he would point out the place but not that

part where he stated that he had hidden the ornaments.

44. Now coming to the present case, it is not disputed that after

registration of the case, a team of CBI officials was constituted for laying

the trap on 27.02.2018 and pursuant to the information received from the

source, the trap team reached near Milan Cinema, Moti Nagar, Delhi. R.S.

Chandel (A-1) arrived there in his Maruti SX-4 bearing No. DL.8CQ-0899

and, Sudhir Khera (A-2) reached in a Swift Dzire bearing No. DL-lCS-8326.

Both the accused then came out of their vehicles and after talking for some

time they started walking towards car No. DL-8C0-0899 and sat inside the

car. After 10-15 minutes the said car started on and Sudhir Khera gestured

to come out of the car on which TLO challenged Sudhir Khera (A-2) who

disclosed that he had paid commission to R.S. Chandel (A-1). Thereafter

R.S. Chandel (A-1) was directed to come out of the car and both the accused

were apprehended and during the search of accused R.S. Chandel, a bunch

of currency notes i.e. Rs.86,000/- were recovered from the left side pocket

of Nehru Jacket worn by the accused R.S. Chandel. During interrogation

Sudhir Khera (A-2) disclosed that he was also having some money with him

as part of his commission as received from Ashok Kumar (A-3) of Aman

Dairy. Pursuant to the same, the search of Sudhir Khera (A-2) was

conducted and from the right side back pocket of the worn pants of Sudhir

Khera (A-2) a brown leather purse was recovered which was containing a

sum of Rs.26,500/. which Sudhir Khera (A-2) disclosed as his commission.

On the basis of the disclosure of Sudhir Khera (A-2), Ashok Kumar (A-3)

was arrested from Alwar, Rajasthan.

45. Learned counsel for CBI has also placed his reliance upon the

statements of the various witnesses recorded under Section 161 Cr.P.C.

including the statements of independent witnesses namely Mukul and Shakti

Singh; the recorded telephonic conversation of the accused persons and the

recovery memos prepared by the Investigating Officer.

46. Insofar as Ashok Kumar (A-3) is concerned, it is not disputed that he

was arrested from Alwar, Rajasthan and no recovery was effected from him.

Regarding, R.S. Chandel (A-l), it is the case of the prosecution that search of

R.S. Chandel (A-l) was conducted at the spot on 27.02.2018 near Milan

Cinema, Moti Nagar and during the personal search only currency notes of

Rs.4,630/- was recovered from his possession and accordingly a search

memo was prepared which bears the signature of witnesses as well as R.S.

Chandel (A-l). However, the recovery memo relating to alleged recovery of

Rs.86,000/- from R.S. Chandel (A-l) does not bear his signatures and

admittedly this recovery memo was prepared by the Investigating Officer in

his office but not at the spot. Two distinct and different recovery memos for

same search which negates each other, particularly so because the

subsequent recovery memo find no mention of recovery of Rs.4,630/- and

the entire story falls flat in the eyes of law.

47. So far as Sudhir Khera (A-2) is concerned, it is the case of the

prosecution that search of Sudhir Khera (A-2) was conducted at the spot on

27.02.2018 near Milan Cinema, Moti Nagar and during his personal search

only Rs.140/- was recovered from his possession and accordingly a search

memo was prepared which bears the signature of witnesses as well as Sudhir

Khera (A-2). It is also the case of the prosecution that the alleged recovery

of Rs.26,500/- was effected from the right side back pocket of the pants of

Sudhir Khera (A-2). However, the recovery memo relating to alleged

recovery of Rs.26,500/- from the Sudhir Khera (A-2) do not bear his

signatures and only bear the signatures of the trap team.

48. The question which now arises is why the recovery memo was not

prepared at the spot and explanation of the prosecution is that R.S. Chandel

(A-1) had become violent. If this was so, then under the given

circumstances, the videography of the proceedings could have been

conducted or some independent witnesses who gathered at the spot, should

have been joined which is not the case of prosecution. Moreover, any CCTV

Footage were not obtained by the Investigating Officer to prove the recovery

proceedings.

49. Insofar as Ram Swaroop Chandel (A-1) is concerned, the case of the

prosecution is based on the alleged recovery of Rs.86,000/- from his

possession on 27.02.2018 at the spot in Moti Nagar area and the alleged

disclosure of Sudhir Khera (A-2) that he had paid the said amount to R.S.

Chandel (A-1) as commission which disclosure statement was admittedly

recorded after the recovery of the said amount, in the CBI office after he had

been taken into custody by the CBI. Insofar as Sudhir Khera (A-2) is

concerned, the case of the CBI is based on the recovery of Rs.26,500/- from

Sudhir Khera (A-2) which as per the disclosure statement of Sudhir Khera

(A-2) was the commission retained by him.

50. In view of above case of prosecution, there is absolutely no evidence

on record even prima facie about the demand of illegal gratification,

acceptance of illegal gratification and even to say that the recovered

amounts were part of illegal gratification, if any. This being the background,

assuming that there is a recovery of currency notes from R.S. Chandel (A-1)

and Sudhir Khera (A-2), the only other evidence on record is the disclosure

statements of the accused which were recorded later on and the only

corroborative evidence is their recorded telephonic conversion. There is no

identification of voice in respect of the accused but even if it is taken as

truth, it does not show any demand of illegal gratification. The disclosure

statements of accused which succeeds the recovery, are inadmissible in

evidence and cannot be the basis of framing of charge. This Court in a

similar case of Roshan Lai Saini vs. C.B.I.: 2011 (1) JCC 102 has observed

that the statement of accused after apprehension to the effect that he had

accepted the money on the directions of the co-accused, was in-admissible

in evidence being the confessional statement made in the presence of a

police officer.

51. Moreover, the Hon'ble Supreme Court in the case of Vijay Thakur vs.

State of Himachal Pradesh: 2014 STPL(Web) 624 SC held that "... what is

important is discovery of the material object at the disclosure of the accused

but such disclosure alone would not automatically lead to the conclusion

that the offence was also committed by the accused What is admissible u/s

27 of the Act (Evidence Act) is the information leading to discovery and not

any opinion formed on it by the prosecution. It is settled position of law that

Suspicion, however strong, cannot take the character of proof...".

52. It is evident from the record that R.S. Chandel (A-1) and Sudhir

Khera (A-2) were apprehended at the spot whereas Ashok Kumar (A-3) was

not apprehend from the spot. As per the case of the prosecution and

allegations in the FIR, Ashok Kumar (A-3) is the person who gave money to

Sudhir Khera (A-2) a private person and not a public servant. However, the

Trial Court noted that there is no evidence of Ashok Kumar (A-3) having

handed over the money to Sudhir Khera (A-2) or Sudhir Khera (A-2)

handing over the same to R.S. Chandel (A-1). Further noted that there is no

hand wash, or any recovery of any amount from the accused which is the

normal procedure the CBI adopts in such cases and everything in the present

case is attributed to an unknown "source" and according to that "source"

Sudhir Khera (A-2) used to collect money for R.S. Chandel (A-1) and these

persons were only apprehended at the alleged place of occurrence of the

offence. Moreover, there is no investigations and evidence to even prima

facie substantiate the allegations made by the unknown source and entire

case is based upon assumptions.

53. The Trial Court further observed that there is no separate disclosure

statement of the accused recorded. Rather, the recovery memo which is only

signed by the member of the raiding team, do not bear the signatures of the

accused or of any independent private persons and it is this recovery memo

which contain a narrative paragraph with regard to the disclosure. Be that as

it may, even if the narration of the recovery memo is taken to be correct, the

said disclosure is pursuant to the alleged recovery of Rs.86,000/- from R.S.

Chandel (A-1) and Rs.26,500/- from Sudhir Khera (A-2) which had already

been effected. Therefore, even if the allegations and the averments of the

prosecution are taken to be correct on their face value, the said disclosure

statement made by the accused while in police custody which is subsequent

to the alleged recovery, is hit by Section 27 of Evidence Act and is clearly

inadmissible in evidence.

54. It is pertinent to mention here that as per the allegations, R.S. Chandel

(A-1) being the DGM (Technical) was showing undue influence to show

special favours to M/s. Aman Dairy causing loss to the organization (Delhi

Milk Scheme). However, case of the prosecution is that there was a loss to

the organisation on account of special favours shown by R.S. Chandel (A-1)

to certain dairies. In this regard, it was necessary to the prosecution to prima

facie show, first that there were special flavours shown by the accused R.S.

Chandel; secondly to whom those special favours were shown and lastly that

there was a financial loss caused to the organization i.e. Delhi Milk Scheme.

However, it is nowhere alleged or shown in the entire charge-sheet that there

was any loss to the organization (Delhi Milk Scheme). Assuming the

allegations made by the prosecution that special favours were shown by R.S.

Chandel (A-1) to certain handpicked Dairies, the Investigating Officer ought

to have collected the evidence relating to loss to the organization which has

not been done. Merely because there was interactions between certain

officials of the organization and milk suppliers, there can be no presumption

or assumption of any undue benefits. The said benefits, if any, to the

detriment of other suppliers or to the interest of the organization ought to

have been investigated and shown, which has not been done. On the

contrary, as a DGM (Technical), it was necessary for R.S. Chandel (A-1) to

maintain cordial relation with all the existing milk suppliers which would

include Tasty Dairy and Aman Dairy. The aspect of partiality has neither

been alleged nor prima facie brought on record. It is not disputed that as per

the guidelines of Organization and the duty assigned to R.S. Chandel (A-1),

he was required to ensure hassle free and running of milk plant at its

maximum capacity and supply of the milk and milk products to its end

users. Admittedly, in a commercial organizations, more particularly an

organization involved in supply of milk and milk products, a high degree of

proficiency and efficiency to evaluate the purchases of raw materials like

milk, milk products, etc. from cost point of view, the nature of job assigned

to R.S. Chandel (A-1) required constant feedback from the market and a

need of cordial relations with the suppliers/ stake holders/ vendors.

55. In addition to above, there is also nothing on record to show that R.S.

Chandel (A-1) had given any undue financial benefits to M/s Tasty Dairy

and M/s. Aman Dairy thereby causing any loss to the organization (Delhi

Milk Scheme) or the Government.

56. It is pertinent to mention here that as per the case of CBI, R.S.

Chandel (A-1) had put undue influence over the staff of Delhi Milk Scheme

in order to favour the co-accused i.e. Sudhir Khera (A-2) and Ashok Kumar

(A-3). In this regard, the CBI has placed his reliance upon the statements of

Sh. Deepak Kumar Chaudhary, DGM (Admn. General Manager, Delhi Milk

Scheme and Sh. Jitendra Kumar, IC Manager, Procurement/ Security

Officer Delhi Milk Scheme, recorded on 23.03.2018 under Section 161

Cr.P.C. However, both these witnesses have cited an incident dated

29.01.2018 at 9:30 PM when the DGM (T) i.e. R.S. Chandel (A-1) had

directed him to take the tankers of three milk suppliers i.e. MCC Renuwal

Dairy, Shree Gopala Dairy and Aman Dairy, inside Central Dairy despite

the fact that they were informed two days ago for not sending their milk

tankers in Delhi Milk Scheme. The witness Jitendra Kumar further stated

that he discussed the matter with General Manager, DMS telephonically

who directed him not to do any undue favour to any milk supplier out of

turn, after which he informed the same to DGM (T) i.e. R.S. Chandel (A-1)

who threatened him (witness Jitendra Kumar) and forced him to take the

tankers inside the Central Dairy. It is also alleged that R.S. Chandel (A-1)

had communicated to Sudhir Khera (A-2) about the extension of contract

even before its decision which reflects their malafidies and is incriminating

qua them.

57. It is note out of place to observe that both these witnesses are the

officials of Delhi Milk Scheme and the tone and tenor of their statements

recorded by the Investigating Officer shows that they had certain differences

with R.S. Chandel (A-1) on issues relating to supply. Firstly, assuming

there were organizational issues relating to functioning of an officer and

decisions taken thereof, unless there is cogent evidence of such decisions

being backed by financial considerations and illegal gains, then how

criminality can be attached to the same. Secondly, assuming that an

influence had been exerted upon them, these officials (one of whom is of an

equivalent rank) would have certainly disclosed the same or at-least made a

complaint before their senior officers, which is not the case. The

Investigating Officer has failed to place on record any material to confirm

that these officers had reported the incident dated 29.01.2018 to their senior

officers in writing either at the relevant time or even later after the arrest of

the accused. Obviously, they would not have waited till 23.03.2018 to make

these kind of statements for the first time before the CBI. Hence, the said

statements which were recorded by the Investigating Officer much after the

incident and the possibility of the witnesses being tutored only to create

evidence against the accused, is not all that unfounded. Thirdly, coming to

the issue relating to extension of existing contract, it is evident from the

statement of these witnesses that the contract in question had been finalized

and awarded through an e-tendering process. There are no allegations

whatsoever of any inequality in the same. It is admitted by all the

departmental witnesses that till the finalization of fresh e-tender for

procurement of mixed milk/cow milk/ concentrated skimmed milk for the

year 2018, the agreement with the existing supplier is bound to be extended

as per the normal practice. Hence, the extension being a routine issue and

having been given as per existing practice, nothing incriminating can be

attributed to R.S. Chandel (A-1) having informed the suppliers of such

extension.

58. With regard to the witnesses from Delhi Milk Scheme, certain favours

being done by R.S. Chandel (A-1) to selected diaries, however, hardly any

favours has been stated and for all the decisions taken by the DGM (T) i.e.

R.S. Chandel with regard to the tankers being taken inside the central dairy

were stopped by the Security officer on account of mismatch in registration

number plate, R.S. Chandel (A-1) was fully competent to do so in his

official capacity as DGM (T) to have directed their entry.

59. It is not in dispute that on 27.01.2017, R.S. Chandel (A-1) had issued

a warning to M/s. Aman Dairy after which an undertaking was received for

not repeating the said mistake regarding mismatch of registration number

plates. These are small incidents which take place in routine and do not

reflect any misconduct on behalf of R.S. Chandel (A-1). Rather, the decision

taken by him on day to day basis is in the interest of the organization and he

is competent to take such decisions. Even otherwise, Jitendra Kumar has

himself stated that R.S. Chandel directed him not only to take the tankers of

M/s. Aman Dairy but also the milk tankers of MCC Renuwal Dairy and

Shree Gopala Dairy. This reflects that there was no special treatment given

to M/s. Aman Dairy as alleged by the prosecution.

60. It is evident from the statement of witness Dr. Chetan Prakash, Senior

Analyst, Delhi Milk Scheme that he had objected to the acceptance of the

milk tankers as the milk was not upto the mark. However, the said

allegations are against Varun Kumar Nigam and Mohan Lal Biarwa and not

directly against R.S. Chandel (A-1). He has shown these persons Varun

Kumar and Mohan Lal Baira (both not arrayed as accused) as

representatives of R.S. Chandel (A-1). On this aspect, learned Trial Court

observed that the investigations are totally silent and there is nothing to

show that Varun Kumar Nigam and Mohan Lal Bairwa were acting at the

behest of R.S. Chandel. Rather, on the contrary there is a specific instruction

in the handwriting of R.S. Chandel (A-1) dated 13.12.2016 wherein he has

mentioned that "the tanker if not as per the standard it must be re-checked

by SM/ AM level officer in the night....". (Reference in this regard is made to

the statement of Dr.Chetak Prakash recorded under Section 161 Cr.P.C.).

This confirms that officially the officers of SM/ AM level were competent

to check the quality control. Even otherwise, this issue directly concerns

departmental policy and cannot be termed as a misconduct as attributed to

R.S. Chandel (A-1).

61. In addition, the witness Jitendra Kumar, Manager (Procurement) has

clearly stated in his statement under Section 161 Cr.P.C. that he is not aware

of the movement/ illegal activities of Sudhir Khera (A-2) of Tasty Dairy

specialities Ltd. and Ashok Kumar (A-3) of Aman Dairy plant in DMS

premises and their contact with R.S. Chandel (A-1) with them. Hence, his

statement does not incriminate the accused persons.

62. Admittedly, there is no complaint against the R.S. Chandel (A-1) in

the department nor any departmental inquiry has been initiated against him

on the aspects discussed above. Assuming that all what has been stated by

the officials of the Delhi Milk Scheme is correct, at the best these are

allegations of irregularities where the department could have proceeded

which the department has chosen not to do so. Then how these statements

and allegations could incriminate R.S. Chandel (A-1) under the Prevention

of Corruption Act that too when the demand of illegal gratification has not

been proved.

63. The Hon'ble Supreme Court in the case of Manjeet Singh Khera Vs.

State of Maharashtra: 2013 (9) SCC 276 held as under:

"........8. The Court also noticed that seizure of large number of documents in the course of investigation of a criminal case is a common feature. After completion of the process of investigation and before submission of the report to the Court under Section 173 Cr.P.C, a fair amount of application of mind on the part of the investigating agency is inbuilt in the process. These documents would fall in two categories: one, which supports the prosecution case and other which supports the accused. At this stage, duty is cast on the investigating officer to evaluate the two sets of documents and materials collected and, if required, to exonerate the accused at that stage itself. However, many times it so happens that the investigating officer ignores the part of seized documents which favour the accused and forwards to the Court only those documents which supports the prosecution. If such a situation is pointed out by the accused and those documents which were supporting the accused and have not been forwarded and are not on the record of the Court, whether the prosecution would have to supply those documents when the accused person demands them? The Court did not answer this question specifically stating that the said question did not arise in the said case. In that case, the documents were forwarded to the Court under Section 173(5) Cr.P.C. but were not relied upon by the prosecution and the accused wanted copies/inspection of those documents. This Court held that it was incumbent upon the trial court to supply the copies of these documents to the accused as that entitlement was a facet of just, fair and transparent investigation/trial and constituted an inalienable attribute of the process of a fair trial which Article 21 of the Constitution guarantees to every accused. We would

like to reproduce the following portion of the said judgment discussing this aspect:

"21.The issue that has emerged before us is, therefore, somewhat larger than what has been projected by the State and what has been dealt with by the High Court. The question arising would no longer be one of compliance or non- compliance with the provisions of Section 207 Cr.P.C. and would travel beyond the confines of the strict language of the provisions of Cr.P.C. and touch upon the larger doctrine of a free and fair trial that has been painstakingly built up by the courts on a purposive interpretation of Article 21 of the Constitution. It is not the stage of making of the request; the efflux of time that has occurred or the prior conduct of the accused that is material. What is of significance is if in a given situation the accused comes to the court contending that some papers forwarded to the court by the investigating agency have not been exhibited by the prosecution as the same favours the accused the court must concede a right to the accused to have an access to the said documents, if so claimed. This, according to us, is the core issue in the case which must be answered affirmatively. In this regard, we would like to be specific in saying that we find it difficult to agree with the view taken by the High Court that the accused must be made to await the conclusion of the trial to test the plea of prejudice that he may have raised. Such a plea must be answered at the earliest and certainly before the conclusion of the trial, even though it may be raised by the accused belatedly. This is how the scales of justice in our criminal jurisprudence have to be balanced."

64. Emphasizing the need to place all the relevant documents i.e. the ones

that favour the prosecution and those favouring the accused on record the

Rajasthan High Court in the case of Neelesh Jain vs. State of Rajasthan:

2006 CriLJ 2151 held that:

"15. At times, the prosecution has used the loophole in the law, in the garb of using the power and Section 173 of the Code, to withhold those documents, which weaken their case against the accused. However, such a free exercise of power is against the spirit of the Code. Once a person has been accused of the commission of an offence, it is for the investigating agency to discover if in fact the offence has been committed by the said offender or by someone else. Like an archeologist, the investigator must brush layers of evidence to reach the truth. But in his endeavor to book the accused, he cannot collect one- sided evidence and present it to the court. For the investigating agency has to be impartial in its investigation. Moreover, the prosecutor cannot convert himself into a persecutor by submitting one side of the investigation and by withholding relevant portion that would favor the accused person. Neither the investigating agency, nor the prosecution is supposed to merely claim, "Ashwatham maro," without informing the Court as to who has died, the Man or the elephant.

16. In case the prosecution is permitted to withhold vital evidence from the court, the unscrupulous prosecution would be permitted to keep the Court in the dark. The law does not permit the prosecution to play fowl with the Court. Like any party before the Court, the prosecution, too, must come to the court with clean hands. If information is withheld from the Court, then adverse inference should be drawn against the prosecution. Such an inference flows legally from Section 114 of the Evidence Act."

65. Thus, it is settled law that the Investigating Officer cannot collect one

sided evidence by withholding relevant evidence that would favour the

accused.

66. Accordingly, learned Trial Court observed that there is nothing which

could prompt the court from looking into the documents of the defence

particularly when the said documents have not been collected by the

investigating agency and the aspects so highlighted therein find

confirmation from the statements of official witnesses recorded by the

Investigating Officer under Section 161 Cr.P.C.

67. The Trial Court noted that R.S. Chandel (A-1) has placed his reliance

upon the internal noting No.A-12001/1/2017/ Proc/ DMS) and also on the

Office Order dated 24.03.2017 issued by Sh. D.K. Chaudhary. Copies of

both these documents were supplied to the Ld. Senior Public Prosecutor and

to the Investigating Officer despite which they neither admitted nor denied

the same. Accordingly observed, it is evident from the internal noting No.A-

12001/1/2017/ Proc/ DMS that various complaints were being received from

different milk suppliers/ societies regarding irregularities during quality

testing of milk tanker, acceptance of petty amount for rejecting or not

rejecting any milk tanker, difference in measurement of FAT% and SNF%,

which were placed before the General Manager concerned who keeping in

view the perishable nature of the time and in the public interest had tried his

best to remedy the situation so that the interest of the organization does not

suffer as that would directly impact on public health. The General Manager

Sh. D.K. Chaudhary, had then issued an Office Order dated 24.03.2017

which reads as under:

".....In supersession of above letter of even no. dated 23.03.2017, it is hereby order that the rejection of the milk tanker will be done by the Sr. regular staff of QCL instead of contractual staff. In order to ensure the fair and transparent testing procedures it has been decided that if the quality of the milk tanker is deviating from the acceptable norms/ standards in such cases the resampling of such milk tankers will be done by a team of 2-3 officers one each from Processing (Section Manager/ Shift Manager) & OCL under DGM (T) supervision and this team will take final decision of acceptance/ rejection of such milk tanker on the basis of testing report of re- sample of the concern milk tanker. The gate pass of rejected tanker will also be issued only by the regular employee of DMS on duty at that time......"

68. The above Office Order which has not been disputed, confirms that

R.S. Chandel (A-1) was specifically nominated officer to supervise and take

a final decision of acceptance/ rejection of milk tankers. He was also well

within his jurisdiction to decide as to which milk tanker is to be taken inside

the Central Dairy and which is to be rejected. However, said Office Order

dated 24.03.2017 does not form a part of the record. Since the accused

having placed his reliance on it and the prosecution not being disputed the

same, the Court observed that fair investigation and a fair trial to the accused

is a constitutional mandate and the same cannot be violated and it is open to

the Court, in the interest of justice, to look into these documents at this

stage.

69. Regarding the allegations that Ram Swaroop Chandel (A-1) has

conveyed about the extension of milk supply contract for a period of ninety

days w.e.f. 01.01.2018 to accused Sudhir Khera before an order for the same

was issued. However, fact remains that the entire purchases of milk and

milk products are through e-procurement tendering process to which there is

no rebuttal. There is nothing on record to show that the fresh tender for the

year 2018 (January to December) had been finalized and therefore, under the

given circumstances, there was no alternative except to extend the existing

tender of milk suppliers for the year 2018 a fact which would have been

known to every officials of DMS not being a secret or confidential matter.

In the past, extension of tenders has been granted in same manner many

times so that the continuous supply of milk and milk products on daily basis

as per the requirement of milk sellers is ensured and daily demand of

consumers is fulfilled without any fail. Thus, it was the responsibility of the

accused to arrange the required quantity of raw milk from the milk

suppliers/ vendors and hence, it was informed to the various milk suppliers

including Sudhir Khera (A-2) about the extension after the approval of the

General Manager, DMS.

70. As argued by R.S. Chandel (A-1) that he had been a whistle blower

and had raised voice against the irregularities in the organization including

embezzlement of funds causing loss to the organization by the senior

officials of the organization including quality control Lab, procurement of

raw milk and several correspondences were made by the accused wherein

the information of misappropriation of funds of the organization by such

officials were conveyed to the Joint Secretary/CVO, Animal Husbandry

Commissioner and Secretary in connection of HRA, TPT Allowance, Milk

Procurement, etc. for appropriate action and recovery of amount from such

persons, admittedly complaints are still pending disposal before the superior

authorities. In this regard, there is nothing on record to show that any

departmental action had been initiated against R.S. Chandel (A-1).

71. In view of above facts discussed, the settled law is that if the

prosecution witnesses presumed to be true, without any cross examination,

still conviction cannot be awarded to the accused, then deserves for

discharge, as the case in hand is.

72. Accordingly, I am of the view that there is no illegality and perversity

in the impugned order except the observation made by the Trial Court that if

in the facts and circumstances, two views are possible, then the benefit of

doubt must be given to the accused. Whereas, settled law is otherwise at the

stage of discharge. The said view is applicable after full trial as held in Sujit

Biswas (supra), but not at the stage of charge.

73. Finding no merit in the present petition, the same is, accordingly,

dismissed with no orders as to costs.

74. Pending application, if any, also stands disposed of.

75. The order be uploaded on the website forthwith.

(SURESH KUMAR KAIT) JUDGE SEPTEMBER 30, 2020 ab