Gauhati High Court

Page No.# 1/13 vs The State Of Assam on 18 June, 2025

                                                                      Page No.# 1/13

GAHC010106442025




                                                                 2025:GAU-AS:8145

                            THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                             Case No. : Bail Appln./1632/2025

           MASUM YUSUF AHMED
           S/O- SALAH UDDIN AHMED,
           R/O-HOUSE NO. 20, BISHNU RAVA PATH, BELTOLA, JYOTI PRASAD
           AGARWALA BYE LANE, POLICE STATION - HATIGAON, GUWAHATI -
           781028, DISTRICT - KAMRUP (M), ASSAM



           VERSUS

           THE STATE OF ASSAM
           REPRESENTED BY THE PP, ASSAM



Advocate for the Petitioner : MS. C CHOUDHURY, MR. D GAGAI,MR. A M BORA,F. K.
AHMED,MR. V A CHOWDHURY

Advocate for the Respondent : PP, ASSAM,
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                                BEFORE
                 HONOURABLE MRS. JUSTICE MITALI THAKURIA
                                 ORDER

18.06.2025

Heard Mr. A. M. Bora, learned Senior Counsel assisted by Mr. V. A. Choudhury, learned counsel for the petitioner. Also heard Mr. P. Kataki, learned Special Public Prosecutor, C.M (Vigilance) assisted by Mr. P. P. Dutta, learned counsel for the respondent.

2. This is an application under Section 483 of BNSS, 2023 praying for grant of bail to the accused/petitioner, who has been arrested on 04.04.2025 in connection with Vigilance P. S. Case No.09/2025, registered under Sections 12, 13(1) (b), 13(2) of the Prevention of Corruption Act, 1988.

3. The scanned copy of the Trial Court record, as called for, has already been received and the State respondent has also filed the written objection, which I have perused the same.

4. It is submitted by the learned Senior Counsel for the petitioner, Mr. Bora, that the entire case is based on documentary evidence. The Investigating Officer (IO) has collected all the relevant documents during the investigation, on the basis of which the charge sheet has been filed against the present petitioner. The petitioner contends that, after obtaining his B.Tech degree from NIT Silchar in 2009, he joined Asian Paints as a Manager and served there from 2012 to 2016. Thereafter, he joined Process Maps Pvt. Ltd. in 2016. Subsequently, he returned to Assam and appeared for the Combined Competitive Services Examination in 2017, which he successfully cleared on 16.11.2018. Accordingly, he was posted as Assistant Commissioner, Bongaigaon, Page No.# 3/13

and thereafter as Assistant Commissioner, North Salmara. Subsequently, he was posted as Assistant Commissioner of Bijni from 20.05.2023 to 14.06.2023, and thereafter as Circle Officer, Bajali, with effect from 15.06.2023, vide Notification No. ECF296000/120E-E dated 14.06.2023. Further, in connection with the allegation of dual employment, the petitioner was placed under suspension on 26.02.2025, vide Notification No. AAP.13/25/7. At the time of his arrest on 04.04.2025, he was under suspension.

5. He further submitted that, on 03.04.2025, an FIR was lodged before the Officer-in-Charge, Vigilance Police Station, Chief Minister's Special Vigilance Cell, Assam, in connection with Regular Enquiry No. 09/2025 initiated at the Vigilance Police Station. It was found during the enquiry that the petitioner was in possession of disproportionate assets amounting to Rs. 4,53,46,932/- (Rupees four crore fifty-three lakhs forty-six thousand nine hundred thirty-two) against his known sources of income. Accordingly, the case was registered as Vigilance P.S. Case No. 09/2025, under Sections 12, 13(1)(b), and 13(2) of the Prevention of Corruption Act, 1988, and investigation was commenced. However, surprisingly, at the time of filing the charge sheet, the alleged disproportionate assets was stated to be Rs. 1.70 crore, without any proper explanation in the charge sheet as to how the initially assessed amount of Rs. 4.53 crore was reduced.

6. It is further submitted that, prior to the petitioner's arrest, he was never called for any enquiry regarding the allegations made in the FIR, nor was he asked to furnish any documents by the Investigating Officer (IO) in connection with the said allegations. However, one notice was issued to the petitioner on 30.04.2025, by which time he had already been in custody for over 26 days, seeking an explanation as per the Office Memorandum. Moreover, while issuing Page No.# 4/13

the notice under Section 47 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), it was specifically recorded at Serial No. 3 of the grounds for arrest that the petitioner had failed to satisfactorily explain the sources of wealth and assets that significantly exceeded his legitimate earnings. However, the petitioner was never given any opportunity to provide such an explanation and remained unaware of any regular enquiry being conducted against him by the IO. Nevertheless, the case was registered, and the petitioner was arrested on 04.04.2025, and has remained in custody since then. As the charge sheet has already been filed, the petitioner is now required to prepare his defence. Hence, it is prayed that his bail application be considered so that he may personally meet his engaged counsel and take appropriate steps for his defence.

7. Mr. Bora raised the issue that the Principal Secretary to the Government of Assam, Home and Political Department, vide Office Memorandum No. PLA(V)139/2009/5-A, dated 13.11.2009, provides that "in continuation of office Memorandum No. PLA(V)55/2003/12, dated 16.06.2004 and office Memorandum No. PLA(V)55/2003/47, dated 19.04.2009 and after careful examination of the existing provision and with a view to expediting the implementation of Vigilance and Anti Corruption measures, the Governor of Assam is pleased to order the following provision after sub para (3) of para (C) of office Memorandum No. PLA (V)55/2003/12, dated 16.06.2004 for disposal of regular enquiry and initiation of criminal investigation:-

(1) Notwithstanding anything contained in any provision of earlier Office Memorandum in this regard the enquiry officer through the Directorate of Vigilance & Anti Corruption shall collect the details of income and expenditure as well as other requirements such as assets and liabilities from the suspect officer/employee. If the suspect officer/employee fails to respond to furnishing Page No.# 5/13

the required information/statements etc. within 30 (thirty) days from the date of receipt of requisition from the Directorate of Vigilance and Anti Corruption, the Directorate of Vigilance & Anti Corruption shall move to the Government on the Political Department for approval to register a criminal case against the defaulting suspect officer/employees;

Provided that the Directorate of Vigilance and Anti Corruption while seeking the required information from the suspect officer/employee shall inter alia specify in the requisition letter that failure to furnish the information within stipulated period shall invite the process for registration of criminal case.

Provided further that the Directorate of Vigilance & Anti Corruption shall ensure the receipt of such requisition by the concerned suspect officer/employee against whom the registration of criminal investigation is proposed."

8. He further submitted that, as per the office Memorandum dated 13.11.2009, if the suspect officer/employee fails to respond to furnishing the required information/statements etc. within 30 days from the date of receipt of the requisition from the Directorate of Vigilance & Anti-Corruption, the Directorate of Vigilance & Anti Corruption shall move the Government in the Political Department for approval to register a criminal case against the defaulting suspect officer/employee. However, in the instant case, the present petitioner was never provided any opportunity to explain or to submit documents as per the notification, even though a regular enquiry was conducted against him before lodging the FIR. Therefore, the registration of Vigilance P.S. Case No. 09/2025 under Sections 12, 13(1)(b), and 13(2) of the Prevention of Corruption Act, 1988, without issuing any requisition to the Page No.# 6/13

petitioner prior to registration, is illegal, arbitrary, and violative of the guidelines enumerated in the office Memorandum dated 13.11.2009. More so, to date, the petitioner has not received any letter from the Joint Secretary to the Government of Assam, Personnel (A) Department, seeking any explanation or providing any opportunity of hearing to him.

9. Mr. Bora also submitted that the instant case, has been registered only under Section 13(1)(b) and not under Section 13(1) (a), further presumption under Section 13 itself, is not attracted against the petitioner as the presumption shall only be against the petitioner when the petitioner or public servant cannot be satisfactorily account for. Here, is a case where the opportunity itself was not given to the petitioner to satisfy the concerned agency as to the property appropriate to his known source of income. This is a gross violation of the natural justice to which all the citizens under the Constitution of India are entitled to and as such the petitioner herein submits that it is fit case to invoke the power under Section 483 of BNSS and prays to release the accused/petitioner on regular bail.

10. He further submitted that the petitioner's earlier bail application was rejected considering the materials available in the Case Diary. However, the investigation has now been completed by the IO, and all relevant documents have been collected and seized in connection with the case. Additionally, the petitioner is currently under suspension, and hence, there is no question of tampering with official documents at this stage. Being a permanent resident of the addressed locality, there is no likelihood of the petitioner absconding, and he is willing to furnish genuine surety if granted bail. On the contrary, the petitioner undertakes to appear before the learned Trial Court on each and every date fixed, to face the trial.

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11. Mr. P. Kataki, learned Special Public Prosecutor, C.M. (Vigilance), has submitted both orally and through written objections that the learned counsel for the petitioner primarily raised the issue that Vigilance P.S. Case No. 09/2025 was registered without issuing any requisition to the accused/petitioner to explain his position regarding the allegations prior to the registration of the case. However, the office Memorandum issued under Memo No. PLA(V) 139/2009/5-A, dated 13.11.2009 by the Principal Secretary to the Government of Assam, Home and Political Department, is merely advisory in nature. Moreover, the said office Memorandum pertains to inquiries carried out by the Directorate of Vigilance & Anti-Corruption and does not have any binding effect on enquiries or investigations conducted by the Chief Minister's Special Vigilance Cell, which was created vide Notification No. HMS.94/84/11 dated 09.02.1984. The Chief Minister's Special Vigilance Cell, Assam, does not fall under the purview or jurisdiction of the Directorate of Vigilance & Anti-Corruption. It is further submitted that the office Memorandum dated 13.11.2009 cannot supersede or curtail the statutory powers of investigation into the cognizable offences vested in the investigating authority, i.e., the Chief Minister's Special Vigilance Cell, Assam as the case may be.

12. He further submitted that, prior to the arrest of the accused/petitioner, the IO conducted a preliminary enquiry and collected relevant documents from various stakeholders, including bank authorities, the Department of Personnel, and the Department of Revenue and Disaster Management, among others. The accused/petitioner was questioned on 03.04.2025 regarding the source of his substantial accumulated wealth over a relatively short period of five years but failed to provide a satisfactory explanation. Furthermore, he was interrogated on both 03.04.2025 and 04.04.2025 concerning the sources of his accumulated Page No.# 8/13

assets during the said five-year period; however, he declined to respond and did not cooperate with the investigation. Therefore, the petitioner's contention that he was not given an opportunity to explain the source of his wealth and assets is incorrect.

13. Mr. Kataki further submitted that it is the responsibility of the prosecution to establish that the accused, or any person on his behalf, was in possession of pecuniary resources or property disproportionate to his known sources of income. Once this onus is discharged by the prosecution, it becomes incumbent upon the accused to provide a satisfactory explanation for the disproportionality of the assets found in his possession. In this context, he relied on the judgment of the Hon'ble Apex Court in K. Veeraswami vs. Union of India & Ors., reported in (1991) 3 SCC 655, and specifically referred to paragraphs 72, 73, and 74 of the said judgment, which read as under:

"72. The soundness of the reasoning in Wasudeo Ramachandra Kaidalwar case (supra) has been doubted. Counsel for the appellant urged that the view taken on Section 5(3) cannot be imported to clause (e) of Section 5(1) and the decision, therefore, requires reconsideration. But we do not think that the decision requires reconsideration. It is signifi- cant to note that there is useful parallel found in Section 5(3) and clause (e) of Section 5(1). Clause (e) creates a statutory offence which must be proved by the prosecution. It is for the prosecution to prove that the accused or any person on his behalf, has been in possession of pecuniary resources or property disproportionate to his known sources of income. When that onus is discharged by the prosecution, it is for the accused to account satisfactorily for the disproportionality of the properties possessed by him. The Section makes available statutory defence which must be proved by the accused. It is a restricted defence that is accorded to the accused to account for the disproportionality of the assets over the income. But the legal burden of proof placed on the accused is not so onerous as that of the prosecution. However, it is just not throwing some doubt on the prosecution version.

The Legislature has advisedly used the expression "satisfactorily account". The emphasis must be on the word "satisfactorily". That means the accused has to satisfy the court that his explanation is worthy of acceptance. The burden of proof placed on the accused is an evidential burden though not a persuasive burden. The accused Page No.# 9/13

however, could discharge that burden of proof "on the balance of probabilities" either from the evidence of the prosecution and/or evidence from the defence.

73. This procedure may be contrary to the well known principle of criminal jurisprudence laid down in Woolmington v. Director of Public Prosecution, [1935] A.C. 462 that the burden-of proof is always on the prosecution and never shifts to the accused person. But Parliament is competent to place the burden on certain aspects on the accused as well and partic- ularly in matters "specially within his knowledge". (Section 106 of the Evidence Act). Adroitly, as observed in Swamy case (at 469) and reiterated in Wasudeo case (at 683), the prosecution cannot, in the very nature of things, be expected to know the affairs of a public servant found in possession of resources of property disproportionate to his known sources of income. It is for him to explain. Such a statute placing burden on the accused cannot be regarded as unrea- sonable, unjust or unfair. Nor it can be regarded as contrary to Article 21 of the Constitution as contended for the appellant. It may be noted that the principle re- affirmed in Woolmington case is not a universal rule to be followed in every case. The principle is applied in the absence of statutory provision to the contrary. (See the observations of Lord Templeman and Lord Griffiths in Rig. v. Hunt, [1986] 3 WLR 1115 at 1118 and 1129).

74. Counsel for the appellant however, submitted that there is no law prohibiting a public servant having in his possession assets disproportionate to his known sources of income and such possession becomes an offence of criminal misconduct only when the accused is unable to account for it. Counsel seems to be focusing too much only on one part of clause (e) of Section 5(1). The first part of clause (e) of Section 5(1) as seen earlier relates to the proof of assets possessed by the public servant. When the prosecution proves that the public servant possesses assets disproportionate to his known sources of income the offence of criminal misconduct is attributed to the public servant. However, it is open to the public servant to satisfactorily account for such disproportionality of assets. But that is not the same thing to state that there is no offence till the public servant is able to account for the excess of assets. If one possesses assets beyond his legitimate means, it goes with- out saying that the excess is out of ill-gotten gain. The assets are not drawn like nitrogen from the air. It has to be acquired for which means are necessary. It is for the public servant to prove the source of income or the means by which he acquired the assets. That is the substance of clause (e) of Section 5(1)."

14. Further, to substantiate the plea concerning the supervisory nature of the memorandum, he also placed reliance on the judgment of the Hon'ble Apex Court in State of Haryana vs. Mahender Singh & Ors., reported in (2008) Page No.# 10/13

13 SCC 606, and emphasized on paragraph 39 of the said judgment, which reads as under:

"39. It is now well-settled that any guidelines which do not have any statutory flavour are merely advisory in nature. They cannot have the force of a statute. They are subservient to the legislative Act and the statutory rules. [See Maharao Sahib Shri Bhim Singhji v. Union of India and Others (1981) 1 SCC 166, J.R. Raghupathy and Others v. State of A.P. and Others (1988) 4 SCC 364 and Narendra Kumar Maheshwari v. Union of India 1990 (Supp) SCC 440].

15. In this regard, Mr. Bora, learned Senior Counsel, submitted that why the petitioner was served with a notice only for providing an explanation if the memorandum is to be considered advisory in nature. He further submitted that although the onus lies with the prosecution, no notice was issued in connection with any regular enquiry conducted by the prosecution prior to the registration of the case against the petitioner. Accordingly, he contended that the petitioner was not afforded any opportunity to offer an explanation regarding the alleged disproportionate assets and properties in his possession.

16. Mr. Kataki, learned Special Public Prosecutor has submitted that the petitioner will have the opportunity to rebut the prosecution's case during the trial by producing reliable and admissible evidence. Moreover, as the case is still under investigation, considering the facts and circumstances, the magnitude of the offence committed by the accused/petitioner, and the materials collected so far, it is not a fit case to grant bail at this stage. Further, he submitted that several witnesses, including subordinate staff of the accused/petitioner and some of his relatives, are yet to be examined, and there is every chance of evidence being hampered or tampered with. Hence, the petitioner should not be granted bail at this stage. Additionally, the petitioner is technically proficient and familiar with the functioning of the e-Dharitree portal and website, and may potentially manipulate any undiscovered assets. Thus, he raised an objection to Page No.# 11/13

granting bail to the accused/petitioner.

17. After hearing the submissions made by the learned counsels for both sides, it is seen that an earlier bail application filed by the accused/petitioner was rejected vide order dated 06.05.2025 in Bail Application No. 1227/2025, upon perusal of the case diary and consideration of the incriminating materials available against the petitioner. The present petition has been filed after submission of the charge sheet, primarily on the ground that the petitioner was not given an opportunity to provide a satisfactory explanation regarding the allegation of possessing disproportionate assets.

18. Mr. Bora, learned counsel for the petitioner, has raised the issue of non- service of notice and the alleged denial of an opportunity to respond during the course of the regular enquiry conducted by the department. He referred to the Office Memorandum dated 13.11.2009, which stipulates that the Directorate of Vigilance & Anti-Corruption must provide sufficient opportunity to the suspect officer/employee to offer an explanation. He submitted that a requisition letter should have been issued to the officer concerned and that only upon failure to furnish a satisfactory response could criminal proceedings be initiated. This raises the question as to whether the initiation of a criminal proceeding is barred in the absence of compliance with the procedure laid down in the office Memorandum.

19. Now the question arises as to whether such criminal proceeding is barred without following the guideline of office memorandum. As per service jurisprudence and various decisions of the Hon'ble Apex Court as well as the High Court's has held that there is no legal impediment to conduct criminal and departmental proceedings concurrently. They operate under different standards of proof, however under certain circumstances, the departmental proceeding Page No.# 12/13

may be considered for stay by the court, if it is shown that the criminal trial would be seriously prejudice by the departmental enquiry and not otherwise. It is also to be taken note of that the acquittal in criminal proceedings does not automatically bar Departmental Proceedings as because the degree of proof required or to be established is of different state. Reference in this regard can be made in case of the Capt. M. Paul Anthony vs. Bharat Gold Mines Ltd. & Anr., reported in (1999) 3 SCC 679. Criminal offence is against the State at large as the crime is against the society. In such circumstances can any Government Department Notification bars criminal proceeding to cognizable offence? Should the Department Head wait till completion of Preliminary Enquiry before lodging FIR, when there is prima facie material of commission of criminal offence? The answer is simply 'No'.

20. Moreover, criminal proceedings operate in a separate domain and are distinct from departmental proceedings. In the present case, a charge sheet has already been filed, indicating prima facie involvement of the petitioner in large- scale misappropriation and corrupt practices, including the alleged siphoning of substantial public funds, which directly impacts society.

21. Given the nature and gravity of the offence, and in view of the fact that several subordinate staff members, who are likely to be witnesses may be susceptible to influence, the possibility of tampering with evidence cannot be ruled out at this stage. This is further supported by the statements of witnesses recorded under Section 183 of BNSS. Although the case is also based on documentary evidence, some of which has already been collected by the IO, the apprehension raised by the learned Special Public Prosecutor regarding possible manipulation of such documents cannot be dismissed at this stage, particularly considering the petitioner's technical expertise and familiarity with the e-

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Dharitree portal/website.

22. In view of the foregoing discussion, and taking into account the nature and seriousness of the alleged offence, as well as the likelihood of tampering with evidence or influencing witnesses, this Court is of the considered opinion that granting bail to the accused/petitioner at this stage is not justified. Accordingly, the prayer for bail is hereby rejected.