SURESH KUMAR KHANNA Vs. STATE OF HARYANA

JUDGEMENT

(1.) THIS is a petition filed under Section 482 of the Code of Criminal Procedure seeking the quashing of FIR No. 332 dated 23.12.1993, under Sections 409, 420, 468, 471, 120-B of the Indian Penal Code, of Section 7/13 of the Prevention of Corruption Act, 1988 (for short P.C. Act) registered at Police Station Sadar Kaithal and proceedings arising therefrom pending in the Court of Shri P.C. Gupta, Presiding Officer, Special Court, Kaithal. The impugned FIR was registered on the basis of a secret information received by Sub Inspector Devi Chand through special informer on 23.12.1993 when he along with other police officials was on patrol duty and present at Cavin Road crossing. According to the information received, firm M/s Sham Lal & Company was having many tankers for carriage of molasses from Sugar Mills, Kaithal on hire basis. The fare from Kaithal to Panipat is at Rs. 8.33 per Quintal. One Vinod Kumar of the said firm M/s Sham Lal & Co. was in league with Vijay Kumar, a clerk working at Sugar Mills, Kaithal and Om Parkash, Sales Manager, was carrying excess weight of molasses out of the premises of the Sugar Mills, Kaithal after manipulating the weight recorded in the receipt issued from the computer. A sum of Rs. 50/- per Quintal was paid to Vijay Kumar Clerk and Om Parkash, Sales Manager aforesaid. These officials of the Sugar Mills used to prepare documents showing less weight of molasses and hand over the same to the said Vinod Kumar of M/s Sham Lal & Company, Vinod Kumar used to unload the excess weight of molasses from the tankers at his godown in Rohtak. On the aforesaid date i.e. 23.12.1993, Sub Inspector Devi Chand had received information that said Vinod Kumar had loaded molasses from Sugar Mills Kaithal in the truck No. HR 12/5971 driven by one Azad Singh, truck No. HYX 5765 driven by Som Bir, Tanker No. HYO 401 driven by one Nanak, Tanker No. DL- 1G/5780 driven by one Dharam Vir and Tanker No. HYO 2596 driven by one Ajay for being unloaded at Distillery situated at Panipat. Out of the aforesaid Trucks and Tankers, Tanker No. HYO 2596 driven by Ajay was reported to be carrying correct weight of molasses whereas the remaining four tankers were carrying excess weight as against the lesser weight shown in the papers. The information also disclosed that these tankers and trucks shall proceed in the first instance to Rohtak where Vinod Kumar will unload the excess molasses at his Godown and then the vehicles carrying the correct weight of molasses as per the entries made in the paper will carry it for delivery at Panipat Distillery. The excess weight of molasses stored in the Godown by Vinod Kumar is subsequently sold in the market at a higher rate. These trucks and tankers were to proceed in the night. After registration of the case on the basis of this information, Inspector/SI Devi Chand and other police officials arranged a picket to intercept the trucks and tankers and succeeded in intercepting tankers and trucks aforesaid. The drivers of these vehicles managed to escape due to the darkness. However, Vinod Kumar aforesaid was apprehended while making his escape good. After being captured at the spot, Vinod Kumar produced the documents of all the tankers loaded with molasses. The case was duly investigated and on the completion of investigation a challan was filed against the accused. The aforesaid vehicles were got weighed. On 26.12.1993 Inspector Kuldip Singh took Vinod Kumar to Rohtak where Vinod Kumar produced some documents including the rates for lifting of molasses and power of attorney for lifting of molasses. However, molasses were not found as it was revealed that Sham Lal and Company on getting the information regarding the raid of the vehicles had removed the molasses. The drivers of the said vehicles were later on apprehended and arrested. Om Parkash Sales Manager and Vijay Kumar, Sales Clerk were also interrogated who produced the relevant record which were taken into police possession through a recovery memo. The aforesaid drivers presented their aforesaid molasses relating to their respective tankers which were also taken into police custody though recovery memos. Statement of witnesses were recorded. On 27.12.1993 record of Sugar Mills Kaithal was taken into police custody through recovery memo. On presentation of the challan, accused appeared before the concerned trial Court and were remanded to judicial custody. On 30.12.1993 accused Dharam Vir, driver of tanker No. DL-1G/5780 was arrested and molasses GP-1 Central Excise and Molasses gate pass were produced which were taken into police custody through recovery memo. Gate pass of other vehicles was also taken into police possession. The molasses concerning the case were released to the Sugar Mills Kaithal on 5.1.1994 at superdari as per orders of the Court. The tankers were also released on superdari. Accused Anil Kumar, owner of tanker No. HYO 401 was arrested and produced before the Court. The investigating Agency attempted to obtain the specimen signatures of accused Vijay Kumar, Om Parkash and Vinod Kumar who refused to give their specimen signatures. The Deputy Superintendent of Police, Headquarters Kaithal obtained permission as per the P.C. Act and thereafter he had entrusted the investigation of the S.H.O.

(2.) THE Presiding Officer, Special Court, Kaithal framed charge sheet against the accused persons including the petitioner Suresh Kumar Khanna on 4.11.1996 and the proceedings are pending in that Court.

(3.) A copy of the molasses Transport pass was annexed with the petition as Annexure P5. The petitioner seeks the quashing of the impugned FIR and the proceedings flowing therefrom on the grounds, inter-alia, that the investigation of the case was to be conducted by the Deputy Superintendent of Police but in the instant case the Deputy Supdt. of Police did not conduct the investigation himself. The contention of the petitioner is that the investigation was initially started by the Inspector, CIA Staff Kaithal, namely, Kuldeep Singh and thereafter it was conducted by Sub Inspector Mam Chand. This was done in violation of Section 17 of the P.C. Act which required the investigation to be conducted by Deputy Superintendent of Police. The Deputy Supdt. of Police (Headquarters) moved an application before Additional Chief Judicial Magistrate, Kaithal on 9.2.1994 contending that the Deputy Supdt. of Police Amir Singh due to heavy load of work was not in a position to conduct the enquiry and sought the orders in this regard from the Court. The learned Additional Chief Judicial Magistrate, Kaithal passed an order dated 9.2.1994 allowing the investigation of the case to be taken over by Shri Sube Singh, Inspector/S.H.O., P.S. Sadar Kaithal. A copy of the order passed by Additional Chief Judicial Magistrate, Kaithal is annexed with the petition as Annexure P6. The other ground urged is that the petitioner was not named in the impugned F.I.R. and even in the report filed by the Investigating Officer under Section 173 Cr.P.C. on 10.3.1994, copy Annexure P4. It was also contended that none of the witnesses disclosed commission of any offence by the petitioner. The matter pertains to M/s Sham Lal and Company which was plying tankers for the purpose of carrying molasses from the Sugar Mills Kaithal to the Panipat Distillery. The allegations were against the said firm M/s Sham Lal and Company acting in connivance with the workers appointed in the Sugar Mills at Kaithal. It was contended that there was no evidence on record regarding short supply of molasses to the Distillery. The accounts were tallied at the Sugar Mills Kaithal and at the destination point i.e. Panipat Distillery. These two Agencies are absent from the challan put up in this case. The petitioner contended further that the sanction for prosecution was granted by the Excise and Taxation Commissioner Haryana which is not in accordance with law. The Excise and Taxation Commissioner has not applied his mind to the facts of the case at the time when he accorded sanction for the prosecution of the petitioner. The petitioner contended that there is no material on record which could warrant prosecution and conviction of the petitioner in this case. It was also contended that there was no evidence to connect the petitioner for his liability for the commission of offence punishable under Section 120-B of Indian Penal Code. The petitioner referred to various judgments in the petition for placing reliance regarding his prayer of the quashment of the F.I.R. The order of the Presiding Officer, Special Court framing charges against the petitioner has also been assailed as being based on no material on record.