JUDGMENT 1. - This application under Section 439 of the Code of Criminal Procedure has been preferred by accused Paras Jain, who was arrested on 08.12.2013 during investigation in F.I.R. No.526/2013, registered on 07.12.2013 by the Anti Corruption Bureau for offence under Sections 7, 8, 9, 10, 11, 12, 13 (1)(a), (d), 13(2) & 14 of the Prevention of Corruption Act, 1988 read with Sections 119, 120, 116, 201, 213, 214, 217, 218, 272, 273, 308, 328, 420, 467, 468, 471, 474, 482, 483, 485, 486, 487, 488, 120-B IPC, Section 63 of the Copy Right Act, 1957, Section 102 read with Sections 103 and 104 of the Trade mark Act, 1999, and Section 66D of the Information Technology Act, 2000. He applied for regular bail, which was dismissed by the order dated 16.12.2013 of the Court of Special Judge, Prevention of Corruption Act Cases, No.1, Jaipur. 2. Shri S.S. Hora, learned counsel for the petitioner, has argued that entire case against the petitioner is based on his telephonic conversation with one Dinesh Singhal and that Dinesh Singhal used to supply 'Nakli Deshi Ghee' for onward sale in nearby areas of Jaipur and Jhunjhunu Districts. There is no material on record to show involvement of the petitioner in any of the offence mentioned in the FIR. The petitioner was not involved in manufacturing of such 'Nakli Deshi Ghee'. There is nothing unusual in the packets of Nova Ghee being seized from the petitioner's business premise run in the name and style of M/s Raj Agencies, as the petitioner was a dealer of Nova Ghee for last eight years. The petitioner has produced bills of M/s. Sterling Agro Industries Limited in the name of M/s. Raj Agencies showing continuous purchases for the last five years. The invoices of the said manufacturers of the current financial year i.e. 01.04.2013 till 05.12.2013 have also been produced on record. The Ghee recovered from the premise of the petitioner is absolutely genuine product of Nova. The petitioner has been issued a license by the Department of Medical & Health Services, to deal in this commodity. Copy of the license has been produced on the record. The police, without obtaining any report from the analyst, has proceeded to arrest the petitioner. One out of three mobile phones alleged to be connected with the petitioner, in fact does not belong to him. Copy of the license has been produced on the record. The police, without obtaining any report from the analyst, has proceeded to arrest the petitioner. One out of three mobile phones alleged to be connected with the petitioner, in fact does not belong to him. Despite police custody of five days, nothing has been recovered at his instance or from any place in and around Jaipur and Jhunjhunu districts. No transaction has been proved as to whom the petitioner supplied the alleged 'Nakli Deshi Ghee'. 3. Entire FIR is a rolled up FIR and suffers from misjoinder of charges as well as accused persons. Petitioner has been seriously prejudice from numerous allegations mentioned in the FIR. 4. It is argued that the Investigating Officer, who filed challan against the petitioner, has indiscriminately alleged the offence against the petitioner in as many as 24 Sections of the Indian Penal Code out of which only Sections 308, 328, 420, 467 and 468 of the IPC are non-bailable. 5. None of the offences under the provisions of the Information Technology Act, Copy Right Act, Trade Mark Act are made out against him, which in any case are bailable. The offences under Sections 119 to 273 of the Indian Penal Code do not apply to the petitioner. The prosecution has mechanically added the offences of Sections 308 and 328 of the IPC without there being any averment in the FIR of anybody getting injured. It is argued that the offence under Section 420 IPC is not at all made out as none has been named as the one who has been cheated in the charge-sheet and by whom. Section 420 of the IPC cannot be pressed into service when the allegation has been made under special enactment i.e. Trade Mark Act. The allegation of forgery is also not made out as no false document has been prepared nor it has been specified as to which document is forged. The offence relating to Sections 482 to 488 of the IPC are not made out against the petitioner, which in any case are bailable. No report of the sample obtained from petitioner has been filed with the challan showing the same was misbranded. The petitioner has no connection with any of the offences of Prevention of Corruption Act said to have been made out against certain public servants. No report of the sample obtained from petitioner has been filed with the challan showing the same was misbranded. The petitioner has no connection with any of the offences of Prevention of Corruption Act said to have been made out against certain public servants. There is no inter linkage or connectivity of allegation against the petitioner and with what happened between Dinesh Singhal and other accused. The requirement of Section 223 of the CrPC is not satisfied. 6. It is contended that daughter of the petitioner is suffering from Refractory Seizure and Paediatric Epilepsy and occupational. There is nobody to take care of his daughter, who requires continued medical care and attention. The petitioner's family is comprising of his wife, mentally ill daughter and old aged parents. 7. It is argued that in the telephonic conversation, the petitioner and Dinesh Singhal are shown talking to each other loosely. Telephonic conversation or the transcription thereof cannot be used as a substantive evidence. It can be used only as a corroborative evidence, and therefore it has no evidentiary value. None of those conversations proves the alleged offences. The voice obtaining in the telephonic conversations cannot be linked to the petitioner. 8. Learned counsel for the petitioner has, relying on the judgment of the Supreme Court in Amrit Singh v. State of Punjab, (2006) 12 SCC 79 , argued that the accused could not be compelled to give voice sample as he cannot be made a witness against himself against his wishes. This question in any case was referred to the Larger Bench by the Supreme Court in Ritesh Sinha v. State of U.P., (2013) 2 SCC 357 . Learned counsel therefore argued that refusal of the petitioner to give sample cannot be read against him. 9. Learned counsel for the petitioner has relied on judgment of the Supreme Court in Jeewan Kumar Raut and Another v. Central Bureau of Investigation, (2009) 7 SCC 526 , especially the observations made in Paras 19 to 26 of the report and argued that the Food Act being a special Act, if a special statute lays down special procedures, the same would prevail over the provisions of the Cr.P.C., and any other enactment. 10. 10. It is argued that the safeguards mentioned in the prevention of Food Adulteration Act and the Food Safety and Standards Act, 2006 (for short, 'the Food Act') for taking samples, sending the same to designated laboratory etc., have not been adhered to. 11. If at all any offence is made out, it was only under Section 59 of the Food Act, where-for the safeguards provided under the Act in Sections 42 and 47 of the Act have not been followed. Even if it were to be presumed to be a case of misbranded food product against the petitioner, offence under Section 89 of the Food Act carries the maximum punishment of six months and the petitioner is in jail for last more than four-and-a-half months. According to parameters laid down by the Constitution Bench of the Supreme Court in Gurbaksh Singh v. State of Punjab, AIR 1980 SC 1632 , especially in Para 27 of the report and Sanjay Chandra v. C.B.I., (2012) 1 SCC 40 , when the charge-sheet has been filed, there is no reason why the bail should not be granted to the petitioner. 12. It is therefore prayed that the petitioner be released on bail. 13. Shri Anurag Sharma, learned Additional Advocate General appearing for the State, has argued that the petitioner is involved in a criminal conspiracy with Dinesh Singhal and other accused for manufacturing of 'Nakli Deshi Ghee' and supply thereof to the areas in and around the Jaipur and Jhunjhunu districts. Learned Additional Advocate General, in this connection, referred to number of transcriptions of telephonic conversations between the petitioner and Dinesh Singhal on their telephone/cellphone. He referred to telephonic conversation between them on as many as 142 occasions on 02.09.2013, 23.09.2013, 06.11.2013, 07.11.2013, 08.11.2013, 18.11.2013, 06.12.2013. In particular, he referred to conversation dated 06.11.2013 to argue that the petitioner was heard enquiring about the rates of different brands of 'Nakli Deshi Ghee' in code word 'K.M.S.', which if decoded would mean Krishna, Mahan, Sampriti, which are the reputed brands of 'deshi ghee'. Dinesh Singhal was heard saying that this brand is available with him. On the following day i.e. 07.11.2013, the petitioner is heard giving order for supply of 25 tins of Sampriti brand. On 08.11.2013, petitioner is again heard saying that he was supplying this product ('Nakli Deshi Ghee') manufactured by Dinesh Singhal through two parties in Jhunjhunu. Dinesh Singhal was heard saying that this brand is available with him. On the following day i.e. 07.11.2013, the petitioner is heard giving order for supply of 25 tins of Sampriti brand. On 08.11.2013, petitioner is again heard saying that he was supplying this product ('Nakli Deshi Ghee') manufactured by Dinesh Singhal through two parties in Jhunjhunu. Again in their conversation that took place on 18.11.2013 the petitioner was heard enquiring from Dinesh Singhal whether he (Dinesh Singhal) was directly supplying the same goods to some other party in the areas assigned to him at the rate of Rs. 1850/-, which was denied by Dinesh. Petitioner thereupon stated that such goods were being supplied through some broker. Then Dinesh admitted having supplied certain material to one Subhash. It was thereupon that the petitioner told him that one party at Jhunjhunu had informed the petitioner about supply of such material at lesser rate. The petitioner gave order for 25 tins of 'Nakli Deshi Ghee' to Dinesh Singhal. In the conversation that took place on 06.12.2013, the petitioner enquired from Dinesh Singhal about 'Nakli Deshi Ghee' with brand name Lord Krishna and also enquired whether it was product of Dinesh Singhal. When Dinesh responded positively, the petitioner enquires about the rate and also whether packaging of this brand was identical to the packaging of original Krishna brand. Dinesh then is heard assuring him that it was exactly identical to that of original Krishna brand. The petitioner then enquired whether Dinesh could give him dealership. Dinesh then asked him as to for which area he would like dealership. The petitioner gave his option for Jodhpur. Dinesh then agreed to this. 14. Learned Additional Advocate General therefore submitted that even if the petitioner was a genuine dealer of Nova Ghee, he was also taking advantage of that situation by supplying huge quantity of 'Nakli Deshi Ghee' in the market thereby retaining larger profits. It is argued that the ghee supplied by the accused was injurious to the health of general public. 14. Learned Additional Advocate General therefore submitted that even if the petitioner was a genuine dealer of Nova Ghee, he was also taking advantage of that situation by supplying huge quantity of 'Nakli Deshi Ghee' in the market thereby retaining larger profits. It is argued that the ghee supplied by the accused was injurious to the health of general public. Reference in this connection is made to the report of the Medical Board of the S.M.S. Hospital, Jaipur, dated 28.03.2014, to the effect that Diacetyl chemical used in preparation of 'Nakli Deshi Ghee' could cause serious ailment of lungs leading to fixed obstructive interstitial lung disease and shortness of breaths and also burning sensation of throat, nose and various kind of skin disease, headache, vomiting, temperature etc. In this connection, learned Additional Advocate General also referred to various literatures to highlight ill effects of Diacetyl, a butter flavor chemical, used in making 'Nakli Deshi Ghee'. 15. Learned Additional Advocate General argued that the case that was investigated by the Anti Corruption Bureau was not mere a case of manufacturing and sale of 'Nakli Deshi Ghee', but also of the connivance of large number of public servants in this racket. The Food Safety Officers of Food Department possibly would not have proceeded against all these public servants. Had the Bureau shared all the information with different Food Safety Officers, long drawn efforts to nab such a big racket would have been frustrated. The samples drawn from different places have been got tested from the Public Health Laboratories, approved for the purpose under Section 49 of the Food Act. While some of the reports have been filed with the charge-sheet, some reports are about to be filed in the court with the supplementary charge-sheet. Many of the samples including the ones recovered and seized from the business premise of the petitioner, have been found to be substandard as per report of the Laboratory. 16. Learned Additional Advocate General submitted that the provisions of the Code of Criminal Procedure are not completely excluded even when the prosecution is launched under the Food Act. Many of the samples including the ones recovered and seized from the business premise of the petitioner, have been found to be substandard as per report of the Laboratory. 16. Learned Additional Advocate General submitted that the provisions of the Code of Criminal Procedure are not completely excluded even when the prosecution is launched under the Food Act. Reference in this connection is made to sub-section (5) of Section 38 of the Food Act, which provides that the Food Safety Officer shall, in exercise of powers of entry upon, and inspection of any place under this section, follow, as far as may be, the provisions of the Code of Criminal Procedure, relating to the search or inspection of a place by a police officer executing a search warrant. Reference is also made to Section 41(2) of the Food Act, which provides that save as in this Act otherwise expressly provided, provisions of the Code of Criminal Procedure, relating to search, seizure, summon, investigation and prosecution, shall apply, as far as may be, to all action taken by the Food Safety Officer. 17. Learned Additional Advocate General referred to Section 26 of the General Clauses Act, 1897, which provides that where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to punished twice for the same offence. It is argued that this provision read along with Section 4(3) of the Prevention of Corruption Act, explains why the offences of Prevention of Corruption Act have been allowed to be tried jointly with the offences in other enactments, as per the provisions of the Code of Criminal Procedure. 18. I have considered the rival submissions and perused the material on record. 19. 18. I have considered the rival submissions and perused the material on record. 19. Although this court, in fairness to the learned counsel appearing on either side, has extensively noted their arguments, as each of them painstakingly argued at length to present their viewpoint, but at the same time, it would be, in the opinion of this court, premature to examine and decide all or any of the issues raised by them for the purpose of finding out, whether or not, alleged offences are made out, whether Anti Corruption Bureau has the competence to investigate the charge under the Food Act, whether the petitioner can be made accused on the allegation of complicity with principal accused Dinesh Singhal or for that matter ingredients of Section 120-B are satisfied, whether the non-bailable offences especially under Sections 308, 328, 420, 467 and 468 of the Indian Penal Code, are prima-facie made out on the evidence collected by the prosecution. This court also does not deem it appropriate to presently decide the question whether the Food Act would be special law or the Prevention of Corruption Act would be the special law for the present purpose. All these issues shall have to be considered by the Special Court when the charges are framed. 20. Even in the cited judgment of Sanjay Chandra, supra, the prosecution opposed the prayer for grant of bail on the ground that co-accused Sharad Kumar [Sharad Kumar v. CBI, (2012) 1 SCC 65 ] was declined bail, and there was no reason or change in the circumstances to take a different view. The Supreme Court rejected the argument holding that co-accused Sharad Kumar had approached the Supreme Court before framing of the charges by the trial court and now the charges have been framed and trial has commenced, therefore, the argument that there was no change in the circumstances was rejected while granting bail to petitioner Sanjay Chandra, supra. Relevant discussion in this regard is made in Para 19 of the report. 21. All the afore-noted arguments can be raised by the petitioner at the stage of framing of the charge as their consideration in greater detail by this court and finding on merits, one way or the other, may prejudice the case of either party. Relevant discussion in this regard is made in Para 19 of the report. 21. All the afore-noted arguments can be raised by the petitioner at the stage of framing of the charge as their consideration in greater detail by this court and finding on merits, one way or the other, may prejudice the case of either party. Considering therefore the totality of the circumstances, nature of allegations vis-a-vis prima-facie evidence and the fact that the charges have yet not been framed, this court at this stage is not inclined to enlarge the petitioner on bail and therefore, the bail application is dismissed. 22. The Court of Special Judge, Anti Corruption Act cases, No.1, Jaipur, is however directed to examine and consider all the afore-noted arguments while framing of the charges. The petitioner would thereafter be entitled to again apply for bail before the trial court itself and that court would be entitled to consider the bail application of the petitioner and pass appropriate order of granting or refusing the bail by independent application of mind without taking any influence from rejection of the present application by this court, depending on the charges are that ultimately framed. 23. This bail application is accordingly disposed of.Bail application dismissed. *******