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2007 DIGILAW 487 (JHR)

Md. Sayeed v. State of Bihar

2007-06-21

M.KARPAGAVINAYAGAM, N.N.TIWARI

body2007
JUDGMENT M. Karpag8 Vinayagam, CJ.-This appeal has been filed challenging the order dated 19.10.2004 passed by the Special Judge, Fodder Scam Cases, allowing the petition of the respondent-CBI making the ad interim order of attachment dated 30.8.1996 absolute. 2. The appellant no.1 was facing trial in R.C Case No. 19(A)/96-Pat. Ultimately he was convicted. Allegation is that the appellant no.1, who was a supplier of medicines to A.H.D., Bihar, defrauded the Government to the extent of Rs. 15,13,45,510/- in pursuance of the conspiracy with others from 1.12.1995 to 27.1.1996 on the basis of fake allotment letters purported to have been issued by the Director of Animal Husbandry, Government of Bihar, for purchase of medicines. It has been the further case of the prosecution that the appellant has acquired moveable and immoveable properties from the ill-gotten money in his name and in the names of his wife, children and others, other appellants, at different places by showing fake supplies to A.H.D.. It is the further case of the prosecution that the appellants purchased different properties from their unknown source of income and the first appellant alongwith others had participated in illegal act by conspiracy by showing supply of medicines when no such supply was made. 3. As there was reasonable apprehension that the appellants may dispose of the properties purchased from ill-gotten money, CBI tiled an application before the court below under section 3 of the Criminal Law (Amendment) Ordinance, 1944, to pass an order of ad interim attachment in respect of the properties detailed in Annexure-2 and also to confirm the same after enquiry. Accordingly, notices were issued to the appellants. In pursuance of the notice, the appellants also filed their show casue and evidence was adduced by the parties. Ultimately, after enquiry, Special Judge found that the order of ad interim attachment earlier passed was fit to be made absolute. Accordingly, the order has been confirmed. Against this order, this appeal has been filed. 4. The main ground urged in this appeal is that the evidence adduced by the appellants to prove that the properties have been purchased from their own source of income have not been properly dealt with by the court below. 5. Accordingly, the order has been confirmed. Against this order, this appeal has been filed. 4. The main ground urged in this appeal is that the evidence adduced by the appellants to prove that the properties have been purchased from their own source of income have not been properly dealt with by the court below. 5. On the other hand, learned counsel for C.B.I. would oppose the maintainability of this appeal on the ground that in absence of the challenge to the ad interim order of attachment, which is appealable, the party cannot file an appeal or a revision against the order passed under section 5 of the Ordinance. 6. We have carefully considered the submissions made by the parties and have gone through the records. At the outset, it shall be stated that against the order passed by the court below dated 19.10.2004, the appellants have chosen to file revision in Cr. Revision No.1166/ 2004 and the same has been admitted. Further, on noticing the stand taken by the C.B.I. through the counter being tiled that revision is not maintainable, the petitioner thought it fit to file LA. No. 378/07 for conversion of this revision into an appeal under section 11 of the Ordinance by the order dated 26.4.2007. Accordingly, this revision was treated as appeal. That is how, the matter has been numbered as Cr. Appeal No. 472/2007. 7. According to the counsel for C.B.I., right of appeal is available only under section 11 of the Ordinance. As per the said provision, an appeal can only be filed under section 4 or 6, that too the appeal would lie as against the order passed under section 8 or 9 of the Ordinance. In the present case, the ad interim order of attachment was passed under section 4 of the Ordinance. Even though the order was appellable, the same was not challenged. The final order making the ad interim order of attachment absolute was passed under section 5 of the Ordinance, which is not appellable. But, however, the appellants have chosen to file a revision and thereafter requested the Court to convert the same into an appeal. 8. About the question of maintainability raised by the counsel for the C.B.I., there is no answer given by the counsel for the appellants. But, however, the appellants have chosen to file a revision and thereafter requested the Court to convert the same into an appeal. 8. About the question of maintainability raised by the counsel for the C.B.I., there is no answer given by the counsel for the appellants. On the other hand, the appellants have elaborately referred to the other points in the written statement relating to improper appreciation of evidence made by the court below in the order dated 19.10.2004. 9. Counsel for the appellant would cite the following authorities:- AIR 1963 SC• 255, The State of West Bengal vs. S.K.Ghosh; (1992)4 SCC 45 , M.Krishna Reddy vs. State Deputy Superintendent of Police, Hyderabad, (2003)7 SCC 436 , Fatima Mohd. Amin (Smt.) (Dead) Through LRS. vs. Union of India & Anr. (2000)6 SCC 338 , State of M.P. vs. Mohanlal Soni. 10. We have gone through the impugned order. The order impugned covering about 25 pages would deal with the every aspect of the evidence available on record. All the materials on record as well as the evidence adduced by the opp. parties-appellants have been completely discussed and dealt with by the court below and it came to the conclusion that opp. parties have failed to establish that these properties have been purchased out of their own sources of income and on the other hand, there are materials to show that the properties were purchased out of ill-gotten money. Even in respect of the point relating to period of misappropriation, the court below has meticulously considered the said aspect and come to the conclusion on the basis of the materials on record that the ad interim order of attachment has to be made absolute. The authorities referred to by the appellants would not deal with the said point and as such, they do not help. 11. Hence, we do not find any merit, both on point of law as well as on facts, in this appeal, which is accordingly dismissed. Narendra Nath Tiwari, J.-I agree.