NAGENDRA SINGH Vs. STATE OF U P

JUDGEMENT

(1.) Heard Shri V.P. Srivastava, learned Senior Advocate assisted by Shri Lav Srivastava, learned counsel for the applicant, Shri Vinay Saran and Shri Anand Tiwari, learned counsel for the first informant, Barauni Kanpur Pipeline, Indian Oil Corporation and learned A.G.A. for the State.

(2.) Learned counsel for the applicant contends that the applicant has been falsely implicated for the offence relating to theft of petroleum products by making 91 meter long underground tunnel from Barauni Kanpur Pipeline of Indian Oil Corporation, going from village Kukhari, to the WELL having been constructed in the premises of the applicant situated at Village Kukhari near and across N.H.76; that the existence of tunnel from Barauni Kanpur Pipeline of Indian Oil Corporation upto the WELL so constructed inside the premises of the applicant is not disputed, but the applicant has no concern with construction of the above tunnel or WELL; that the real fact is that the premises in question of the applicant was leased out by him to co-accused Kuldeep for running Dhaba at a rent of Rs.8000/- per month on 11.12.2014 (during arguments learned counsel for the applicant provided photostat copy of the above agreement, of which typed copy is filed at Annexure 11 and the above photostat copy of rent note is kept on record and made part of the record); that the crime in question has not been committed in connivance or in conspiracy with the applicant rather it has been committed by co-accused Kuldeep without any knowledge of the applicant; that co-accused Saddam Husain has been granted bail by another Bench of this Court vide order dated 13.01.2016 passed in criminal misc. bail application no.34370 of 2015 and co-accused Dheeru Yadav @ Ranjeet Yadav has also been granted bail by the learned Special Judge (E.C. Act)/ Additional Sessions Judge, Allahabad vide order dated 11.01.2016; that no theft of petroleum products was committed by the applicant and no offence is made out against him; that the applicant is a respectable person of society and has no criminal history; that the applicant undertakes that he will not make misuse of the liberty of bail; that the applicant is in custody since 10.04.2015.

(3.) Learned counsel for the first informant, Barauni Kanpur Pipeline, Indian Oil Corporation and learned A.G.A. for the State vehemently opposed the prayer of bail and contended that the crime in question is not a mere theft rather is an organized crime committed with complete planning and preparations by applicant, the white collared person in connivance and conspiracy with co-accused Kuldeep; that in such type of crimes even in absence of any evidence of direct and specific role, the conspirator is equally liable; that the modus operandi of accused/ applicant as well as using of local tools and pipes etc. and intercepting the main petroleum pipeline of high velocity for committing theft in hazardous manner, which could have resulted into extremely serious consequences; that the highly velocity pipeline in operation at a high measure as high as 60 kg per square metre with huge quantity of highly inflammable liquid petroleum product between its upstream and downstream walls is 23,10,000 litres which is equivalent to 192 tankers of 1200 litres capacity; that even if the valves are closed promptly, in case of a minor leakage of such huge amount of 23,10,000 litres liquid petroleum of velocity, could have burst out within minutes over very wide area causing unmanageable fire, engulfing and converting the entire area and several villages around it into a fire ball of such high temperature that would melt any kind of metal (vehicles, metallic structures including iron beams girders, pipes and other articles) within seconds and turn the entire surrounding into a pile of fuming ashes with complete causalities of entire population, cattle, birds etc. in the area; that the site plan and report filed at Annexure 3 with the bail application shows that after making a hole in the Barauni Kanpur Supply Pipeline, a 91 meter long underground tunnel was made across the Allahabad - Manda - Mirzapur Road N.H.-76 upto the premises of the applicant, inside which a 12 feet deep WELL with diameter 4 x 4.5 square feet was constructed, in which there was a 3 feet long bamboo ladder of 7 bars kept inside the WELL and upon entering into the WELL through above bamboo ladder, it was found that there is an underground tunnel of diameter of 3 x 2.5 square feet towards North across the National Highway upto Barauni Kanpur Supply Pipeline and inside the tunnel flexible pipes, electric wires and exhaust fan etc. were duly fitted; that the WELL was constructed inside the 24 x 14.5 square feet room and for covering the WELL an iron sheet of 51 x 55 square inches was used, which was covered with green coloured mat; that in the tunnel, several volves etc. and various equipments, pipes etc. were found to have been fitted by accused persons; that the photographs of the WELL and tunnel in question have been filed with the counter affidavit, which show the seriousness of the matter pertaining to theft of extremely costly and highly inflammable petroleum products in well planned as well as hazardous manner; that the digging of tunnel and pipeline as well as construction of 91 metre long underground tunnel and a big WELL in the premises of applicant may not be possible overnight, without the help of J.C.B. Machines or other electrical equipments in connivance and conspiracy of applicant; that the premises in question in which the above WELL was constructed and upto which WELL, the 91 metre long tunnel from Barauni Kanpur Supply Pipeline was brought across the road, exclusively belongs to the applicant and continuous theft of crude oil (High Speed Diesel) was committed by the applicant and his associates repeatedly on various dates from 16.02.2015 to 18.03.2015 and crude oil/ High Speed Diesel worth more than Rs.1 crores was stolen in dangerous and hazardous manner; that due to above theft of crude oil by the applicant, the pressure in the Barauni Kanpur Pipeline was found to have gone down from time to time, upon which this the matter was enquired into, upon which continuous committal of theft of crude oil/ High Speed Diesel by the applicant and his associates in well organized, planned as well as dangerous and hazardous manner come to the light; that it is absolutely wrong to say that the premises in question was let out by the applicant to Kuldeep at a rent of Rs.8000/- per month; that the agreement of rent at Annexure 11 (of which photostat copy has been produced during hearing) has been forged for making a false ground for obtaining bail; that the photostat copy of the above agreement filed today shows that the above agreement has been executed on 11.12.2014 through notary public on Rs.100/- non-judicial stamp paper through which the premises in question was allegedly let out to Kuldeep for running hotel (Dhaba) at a rent of Rs.8000/- per month; that it is pertinent to note that in terms 6 and 8 of the above rent agreement it has been specifically mentioned that the tenant shall not make any alternation in the walls of house, except making the Chulha-bhatti or fitting of pipe for supply of water and that he will not carry any other activity in the hotel except the business of hotel (Dhaba), else the landlord will be entitled to get the tenant evicted; that through the above rent agreement, the premises is alleged to have been let out for a period of three years; that as per settled law no premises can be let out for a period of one year or more without a registered rent agreement and so also the above alleged agreement of tenancy is forged and inadmissible in evidence; that it is absolutely wrong to say that the alleged tenant Kuldeep, the co-accused made payment of one month rent to the applicant by depositing the same in his account on 13.02.2015 as mentioned in the supplementary affidavit dated 25.02.2016 in para 3 with Annexure 1, copy of passbook, showing such two deposits of Rs.5000/- and Rs.3000/- on 13.02.2015; that there is no rent receipt or counterfoil thereof to show the alleged payment of rent; that there is no whisper as to when the payment of first month was in fact made by Kuldeep and received by applicant; that there can be no reason with tenant to deposit rent of Rs.8000/- in two parts of Rs.5000/- and Rs.3000/- on one and the same date; that the above deposits on 13.02.2015 appear to have been made by applicant himself through his own men and not by co-accused/ tenant Kuldeep towards alleged payment of rent just to misguide the court and obtain bail; that it is highly improbable that the applicant, who resides in the village near the premises in question, and even otherwise, remained unaware of plenty of truck loads of earth being excavated, at least over several weeks from his premises and plenty of building material brought to his premises for construction of 91 meter long underground tunnel across National Highway upto Barauni Kanpur Supply Pipeline as well as 12 feet deep WELL as against no activity relating to Dhaba at all in the premises, which was allegedly let out for Dhaba; that no Haryana Dhaba ever run over the premises in question and had some hungry person approached the Dhaba for Lunch or Dinner, he would have been served the petroleum product instead of Lunch or Dinner; that Annexure 10 filed with bail application shows that the visiting card of alleged 'Haryana Dhaba' carries the name and mobile number of applicant on left top corner while that of alleged tenant and co-accused Kuldeep on right top corner with details of availability of pure and tasteful food at Bampur Fatak, Mirzapur Road, Haryana Dhaba, Mirzapur with facility of bathing and getting fresh; that above visiting card shows that the applicant is partner and has been hand in gloves with co-accused Kuldeep; that it may not be possible that since letting out of the premises allegedly in the month of December, 2014 despite there being no activity of Dhaba for a period of four months, rather mysterious activities of excavation of earth and bringing of huge building material as mentioned above as well as of construction of tunnel and WELL, the applicant was unaware and did not take any action for eviction of the tenant despite a clear breach of terms no.6 and 8 of the rent agreement; that the offence committed is extremely serious and grievous; that as per provisions of Petroleum and Minerals Pipelines Act, 1962 as amended upto date, offence under Sections 15(2) & 15(4) and Section 16 of Petroleum and Minerals Pipelines Act, 1962, the offence is punishable with rigorous imprisonment for a period not less than 10 years, which may extend to imprisonment for life or death; that co-accused Saddam Husain and Dheeru Yadav, were only tanker drivers and their case is clearly distinguishable from the case of the applicant.; that the applicant is a white collared criminal and if released on bail, will misuse the liberty of bail and tamper with prosecution evidence and possibility of his absconding may not be ruled out.