DEEPAK GUPTA Vs. STATE OF ORISSA

JUDGEMENT

(1.) Whether right to speedy trial which flows from Article 21 of the Constitution of India is a remote control in the hands of prosecution prosecuting an accused in a criminal case, so that it can take the trial speedily whenever it desires and slow it down to create frightening moments for the accused to carry an impression that he is fighting an endless battle? Can an accused be left to become a puppet in the hands of the prosecuting agency? Will the trial Court remain as a silent spectator when either from the side of the prosecution or accused, dillydallying or shilly-shallying attitude is adopted for some oblique purposes? These are the package of questions with which the petitioner Deepak Gupta has knocked at the portals of this Court for the sixth time seeking for bail after his earlier five unsuccessful attempts before this Court and also twice before the Hon'ble Supreme Court.

(2.) The accusation against the petitioner in a nut shell is that he was the Director of M/s. Snehapusph Marketing Private Ltd. as well as of M/s. Deepak Steel and Power Ltd. A registered Power of Attorney was executed on 29.12.2003 by Sri B.K. Mohanty mining lease holder of Uliburu Iron Ore Mines in favour of M/s. Snehapusph Marketing Private Ltd. duly represented by the petitioner for conducting mining operation in the ML area of B.K. Mohanty located at Uliburu village over an area of 56.94 Ha. Another Power of Attorney was also executed by co-accused Sri Jagdish Mishra in favour of M/s. Snehapusph Marketing Private Ltd. duly represented by the petitioner on 17.04.2004 to manage his mines. After becoming the Power of Attorney holder of Sri B.K. Mohanty and also getting the Power of Attorney from Sri Jagdish Mishra, the petitioner having full knowledge about the Uliburu iron ore mines area, started excavating iron ore from the lapsed mining lease of Sri Jagdish Mishra which is adjacent to the ML area of Sri B.K. Mohanty and Uliburu reserve forest. During the period from 2004 to 2009, the petitioner stated to have dishonestly and fraudulently misappropriated Rs.1523,59,48,527.48 paisa by conducting illegal mining of iron ore in the lapsed ML area of Sri Jagdish Mishra and Uliburu Reserve Forest by entering into criminal conspiracy with the public servants of Mining Department, Forest Department and Revenue Department and thereby obtained pecuniary advantage to himself and causing equivalent loss to the Government exchequer. Though the petitioner in connivance with other coaccused persons illegally excavated a quantity of 65,25,741.438 MT of iron ore amounting to Rs.1520,39,64,049.60 but they had declared production of only 47,48,826 MT and thus suppressed the production of 17,76,915.438 MT during the period 2004 to 2009. The first charge sheet was submitted on 31.12.2013 and the final charge sheet was submitted on 24.06.2014.

(3.) Mr. Santosh Kumar Mund, learned counsel appearing for the petitioner argued that after rejection of the last bail application by this Court on 07.08.2019 in BLAPL No. 1053 of 2019, the evidence of one Debadutta Suranjita (P.W.18) who was working as Under Secretary, Steel and Mines, Secretariat, Govt. of Odisha has been recorded on 03.10.2019 and she stated in her cross-examination that the outstanding dues against the lessee upto 31.12.2012 was Rs.3,42,486/- and that the loss sustained by the State is the loss of royalty due to illegal mining. According to Mr. Mund, in view of the evidence of P.W.18, the prosecution case that the loss sustained to the State Exchequer was more than one thousand five hundred crores is absolutely unfounded and wholly misconceived. It is further argued that in the charge sheet dated 24.06.2014, it is mentioned that a sum of Rs.13,17,59,863/- has been debited from the two accounts of the lessee B.K. Mohanty to the Govt. accounts towards payment of royalty and other taxes during the period from 2004 to 2010 and therefore, there can be no question of loss of revenue to the State. It is further argued that as per the case of the prosecution, mining was done as per the mining plan approved by the Indian Bureau of Mines and in the charge sheet, it is mentioned that the petitioner who was the Power of Attorney holder of B.K. Mohanty had submitted mining plan and scheme of mining to Indian Bureau of Mines, Bhubaneswar which was approved by Regional Controller of Mines on 15.12.2004, 14.09.2007 and 05.08.2009. Investigation further revealed that the officials of Indian Bureau of Mines have conducted the MCDR inspections of the mines on various occasions and as per the prescribed law and procedure, it is mandatory on their part to examine and report as to whether the mining was performed in accordance with the terms of the lease deed. Though it is alleged that officers of IBM were negligent but for their negligence, the petitioner is in custody for seven years. It is further argued that similar allegation of illegal mining was found by the Central Empowered Committee (CEC) appointed by the Hon'ble Supreme Court and the amount in case of others was much more than what is alleged in this case, but all of them have not been prosecuted criminally, whereas the petitioner has been singled out and is kept in judicial custody for so many years. Apart from the penalty, the petitioner has been subjected to three more criminal cases, besides this case for the same cause of action, whereas the Hon'ble Supreme Court did not even direct investigation in the other cases of illegal mining. He further argued that the charge under section 409 of the Indian Penal Code because of which the petitioner has been denied bail is frivolous and totally misconceived. He emphatically contended that this Court has twice directed to the learned trial Court for expeditious trial with examination of material witnesses in BLAPL Nos.854 of 2015 and 1053 of 2019 but in spite of such direction, during the period of more than three years of framing of charge, the evidence of only twenty five witnesses have been recorded so far and therefore, it would be travesty of justice to keep the petitioner in custody for any longer period. According to Mr. Mund, the prosecution is deliberately flouting the orders of this Court repeatedly and therefore, the State has no right to oppose the application for bail as the detention has already become pretrial punishment. He further argued that the petitioner has deep roots in the society, with his business interests and he is a permanent resident of Barbil and he is neither a flight risk (having surrendered his passport to the investigating agency) nor has he been shown to have any propensity to tamper with evidence or influence any witnesses apart from the fact that the evidence are mostly documentary in nature which have already been seized by the Vigilance police and submitted in the trial court. His properties and properties of his family members including bank accounts, business concerns and factory to the tune of Rs.386 crores have been attached under the Criminal Law Amendment Ordinance, 1944. He further argued that by reason of his continued incarceration, the petitioner is unable to instruct his lawyers properly and thereby unable to effectively defend himself, in violation of his right to fair trial under Article 21 of the Constitution of India. Placing reliance in the case of P. Chidambaram -Vrs.- Directorate of Enforcement,2020 77 OCR 383 (SC), it is contended that since there is no chance of absconding of the petitioner or tampering with the evidence and he has also not flouted the terms and condition of interim bail granted by this Court in I.A. No.268 of 2020, the bail application deserves favourable consideration.