TMI Blog2012 (11) TMI 953X X X X Extracts X X X X X X X X Extracts X X X X ..... al of the Central Government were not applicable. The petitioners A.K. Srivastava and Lallan Ojha are senior officers of the Central Excise Department. Most of the witnesses who have been cited by the prosecution are officials of their department and some of the officials cited as witnesses are their juniors and subordinates. It is every likelihood that in case they are released on bail, they would be able to influence the witnesses. This is presumably because of this apprehension that the prosecution has chosen to get the statements of two drivers and one Superintendent recorded under Section 164 Cr.PC before the Magistrate. The apprehension of CBI in this regard seems to be well founded in the given facts and position of these two petitioners. The pleas that the petitioners are in custody for about three months now and the charge-sheet has been filed are also no ground to admit them on bail. - bail applications dismissed. - 341, 344 and 282 of 2012 - - - Dated:- 11-4-2012 - M.L. Mehta, J. REPRESENTED BY : S/Shri Vikas Pahwa, Sr. Advocate, Abhas Mishra, S. Mishra, Dr. Ashutosh, B. Badrinath and A.K. Dubey, Advocates, for the Petitioner. S/Shri P.K. Sharma, Standin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ese accused persons to each other and they were in constant touch with each other after they held a meeting on 27-12-2011. During investigation, statements of drivers of Lallan Ojha and that of Hemant Gandhi were recorded under Section 164 Cr.PC and they both confirmed that the packet containing Rs. 3 lac belonged to accused Lallan Ojha and was given by the driver of accused Hemant Gandhi to the driver of Ojha. The said amount was found to be Rs. 2,96,500/-. It is stated that the difference in the amount is due to shortage of currency notes in the packet. During investigation, statement of Superintendent, Central Excise Mr. S.K. Singh, who also formed part of the raiding team, was recorded under Section 164 Cr.PC. He also stated the raid to be unauthorized and conducted by Lallan Ojha at the instance of A.K. Srivastava. He also stated having received a sum of Rs. 20 lac from Anand Aggarwal on the directions of Lalaj Ojha and later on having given the same to Hemant Gandhi for delivering the same to Srivastava. Statement of one Mahender Kapur was also recorded under Section 164 Cr.PC. He admitted business relations with Hemant Gandhi and that he had lent Rs. 9 lac to Hemant Gandhi a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he conspiracy hatched by three accused persons, an illegal raid was conducted by Ojha under the control and supervision of Dr. A.K. Srivastava. After the raid, a bargain was struck for Rs. 60 lac by accused/petitioner Hemant Gandhi and a sum of Rs. 40 lac in cash and cheque of Rs. 20 lac was also received by them from Aggarwals through Hemant Gandhi. He also submits that 96 telephone calls were made by the accused persons to each other which show not only the conspiracy and active involvement of all of them, but their modus operandi of receiving illegal gratification. He submits that from the statements of two drivers of petitioners Ojha and Gandhi and that of Mr. S.K. Singh, Superintendent, the factum of receipt of bribe money is also established. With regard to pleas raised by petitioner Dr. A.K. Srivastava, he submits that Section 6A(1) was not applicable since it was a trap case and thus within the ambit of sub-section (2) thereof. He submits that since the petitioner Srivastava got admitted himself in the hospital immediately after arrest of other two accused persons from the spot, his arrest at a later date would be nothing but as a consequence of the trap. He submits that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... self or for any other person. 11. In Section 13(1)(d), the word used is obtained . The Apex Court in the case of C.K. Damodaran Nair v. Govt. of India [(1997) 9 SCC 477] had the occasion to consider the word obtained used in Section 5 of PC Act, 1947, which is now Section 13(l)(d) of the Act of 1988. It was held in para 12 thus : 12. The position will, however, be different so far as an offence under Section 5(1)(d) read with Section 5(2) of the Act is concerned. For such an offence prosecution has to prove that the accused obtained the valuable thing or pecuniary advantage by corrupt or illegal means or by otherwise abusing his position as a public servant and that too without the aid of the statutory presumption under Section 4(1) of the Act as it is available only in respect of offences under Section 5(1) (a) and (b) - and not under Section 5(1)(c), (d) or (e) of the Act. Obtain means to secure or gain (something) as the result of request or effort (Shorter Oxford Dictionary). In case of obtainment the initiative vests in the person who receives and in that context a demand or request from him will be a primary requisite for an offence under Section 5(1)(d) of the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 13(1)(d) qua the petitioners Srivastava and Ojha. There is no reason to disbelieve the statement of driver of petitioner Hemant Gandhi who had given the money to driver of Lallan Ojha at his instructions. There is also no reason to disbelieve the statement of Mr. S.K. Singh, recorded under Section 164 Cr.PC, who was a member of the raiding party and witnessed the entire incident. He was also paid Rs. 20 lac by Aggarwals at the instance of Ojha and had later at his instructions delivered the said money to Hemant Gandhi for Srivastava. Similarly, there was also no reason to disbelieve the statement of Mahender Kapur under Section 164 Cr.PC who was a friend of Hemant Gandhi and had received Rs. 7.5 lac from him as towards repayment of his loan and later on got recovered Rs. 6 lac of the said amount from a person to whom he had given the same. 15. With regard to petitioner A.K. Srivastava, a plea was also raised by learned counsel Mr. Jain that his prosecution was barred under Section 6A(1) of Delhi Police Establishment Act in the absence of approval from the Central Government. In this regard, reliance was placed on the case of R.R. Kishore (surpa) Section 6A of Delhi Special ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner on the spot, Section 6A(2) was held to be not applicable. 17. It would be seen that the facts in the instant case are entirely different and distinguishable from the case of R.R. Kishore (supra). The two accused persons namely Lallan Ojha and Hemant Gandhi were arrested on the spot, whereas accused Srivastava immediately got himself admitted in the hospital and thus could not be arrested. When his condition became normal, he was arrested. The arrest of Srivastava would be nothing but extension of trap arrest. Prima facie Section 6A(2) was attracted and this being a non obstante section, provisions of sub-section (1) mandating approval of the Central Government were not applicable. The objectives of Section 6A(1) was to provide protection to the officers of the rank of Joint Secretary and above who is or has been a decision maker level officer. However, where the accusation of corruption was based on direct evidence and it did not require for inference to be drawn depending upon the decision making process, there was no rationale to classify them differently and giving protection. In other words, if the accusation of bribery was supported by direct evidence of acceptan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is extraneous for consideration of bail applications and that rather goes against the petitioners in having raided the premises and taken illegal gratification despite knowing that the goods were not amenable to excise duty. 20. The petitioners A.K. Srivastava and Lallan Ojha are senior officers of the Central Excise Department. Most of the witnesses who have been cited by the prosecution are officials of their department and some of the officials cited as witnesses are their juniors and subordinates. It is every likelihood that in case they are released on bail, they would be able to influence the witnesses. This is presumably because of this apprehension that the prosecution has chosen to get the statements of two drivers and one Superintendent recorded under Section 164 Cr.PC before the Magistrate. The apprehension of CBI in this regard seems to be well founded in the given facts and position of these two petitioners. 21. The pleas that the petitioners are in custody for about three months now and the charge-sheet has been filed are also no ground to admit them on bail. This Court in Mukesh Jain v. CBI [2010 (1) AD (Delhi) 443 held as under : 9. It is true that the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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