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2019 DIGILAW 654 (MAD)

E. Sivakumar v. State

2019-03-08

N.ANAND VENKATESH

body2019
ORDER: N. Anand Venkatesh, J. 1. The petitioner who was arrested and remanded to judicial custody on 25.09.2018 by the respondent police for the alleged offence in Crime No. RC 8A/2018 under Section 120-B of IPC r/w S. 7, 8, 12, 13(2) r/w 13(1) (d) of the Prevention of Corruption Act, 1988. 2. The brief case of the prosecution is that on 7th and 8th of July 2016, Income Tax Department conducted raid at the Gutkha manufacturing units of Offices and the residential premises of the partners and employees of M/s. Annamalai Industries. During the search, the Income Tax Department seized records and hand written entries revealed that the Gutkha manufacturers had regularly paid illegal gratification to the public servants of various departments. The respondent conducted search in 31 places on the strength of search warrants and seized 374 documents and 63 material objects. The further case of the prosecution is that as per the notification issued by the Government of Tamil Nadu, Health and Family Welfare Department, the Gutkha and Pan Masala are food products in which tobacco and nicotine are used as ingredients in the State of Tamil Nadu and was prohibited. The said notification came into force from 23.05.2013. Based on this notification, the Food Safety and Drug Administration Department issued circular to the Designated Officers concerned of all the Districts in Tamil Nadu. Accordingly, these Designated Officers should furnish report to the Commissioner of Food Safety and Drug Administration, as and when the Committee is convened. The Officer-in- charge of all check posts of Commercial Tax/Motor vehicles/Police etc should be informed by giving letter of communication by the Designated Officer to prevent entry of any vehicles carrying the banned food products in the State. They shall monitor this aspect especially in the initial period by utilising services of Police and Commercial Tax Officials to prevent the entry of banned products. Each Designated Officer should list out the manufacture, storage and distribution or sale places of the above banned product in their jurisdiction and educate the Food business Operators properly about the prohibition order. Even then, the Designated Officer did not take any measures for implementation of the prohibition order. When the ban order was in force during the year 2013, A4 issued licence to M/s. Annamalai Industries for manufacturing Pan Masala for the period from 18.09.2013 to 17.09.2014. Even then, the Designated Officer did not take any measures for implementation of the prohibition order. When the ban order was in force during the year 2013, A4 issued licence to M/s. Annamalai Industries for manufacturing Pan Masala for the period from 18.09.2013 to 17.09.2014. He also recorded in his hand writing in the computer generated licence that he was authorised to manufacture/process the item which is within the rules and regulations of FSSAI. He was not authorised to manufacture the banned substances, and also advised to do the periodical lab testing of the product with the NABL/Government Food Lab, whereas it is apparent that no licence could be issued for the manufacture of any product containing tobacco and nicotine under Food Safety Act. The said A4 dishonestly abusing his official position, generated the above licence issued in his handwriting 'No Nicotine No Tobacco' in the name of M/s. Annamalai Industries and signed on that as if it was issued on 18.09.2013. 3. The further case of the prosecution is that the Government of Tamil Nadu, Health and Family Welfare Department banned the manufacturing of Gutkha and Pan Masala vide notification dated 23.05.2013. Even in continuation of this ban during the year 2013, A1 to A3 along with public servants entered into criminal conspiracy for manufacturing and sale of Gutkha at Chennai and established a new firm M/s. Annamalai Industries at 3/38 B, Sothupakkam Salai, Theerthakirayan pattu village, Red hills, Chennai working through Shri. S. Vignesh as Proprietor of this Firm. However, he was employee of this firm. It is further alleged that in furtherance of conspiracy on 03.07.2013, above said A1 to A3 submitted on-line application for obtaining registration from Central Excise Department for manufacturing Excisable goods. That the main object of Notification dated 23.05.2013 issued by the Government of Tamil Nadu is that the food product i.e Pan Masala and Gutkha should not contain tobacco and nicotine whereas the petitioner accused No. 6 and Dr. Senthil Murugan (A-4) had not taken any measure for implementation of prohibition order except warning notice dated 27.06.2013 issued to M/s. Jayam Industries through accused/Petitioner. Further petitioner accused Shri E. Sivakumar (A-6) also seized Gutkha waste of 150 Kg and tobacco waste of 45 Kg from M/s. Jayam Industries on 15.07.2013. Senthil Murugan (A-4) had not taken any measure for implementation of prohibition order except warning notice dated 27.06.2013 issued to M/s. Jayam Industries through accused/Petitioner. Further petitioner accused Shri E. Sivakumar (A-6) also seized Gutkha waste of 150 Kg and tobacco waste of 45 Kg from M/s. Jayam Industries on 15.07.2013. That for obtaining license under Food Safety and Standard Act, M/s. Annamalai Industries submitted on-line application for manufacture of Pan Masala on 20.08.2013 on which accused 6/Petitioner in conspiracy with A-1 to A-3 recommended for issuing license for manufacture of Pan Masala for M/s. Annamalai Industries. License was renewed from time to time on the recommendation of accused/Petitioner. Further as per allegation, Central Crime Branch (CCB), Tamil Nadu Police conducted raid at three Gutkha godowns including M/s. Annamalai Industries and handed over all these three Godowns to local police and thereafter, the local police handed over the finished Pan Masala product and Grind tobacco dust to petitioner/Shri. E. Sivakumar (A-6). The accused petitioner is required to take the sample from the seized godown but accused petitioner did not send any sample of tobacco for chemical analysis whereas he sent sample of pan Masala, betel nut and cardamom seeds on 12.06.2014 and the same were not part of seizure and obtained positive lab report dated 01.07.2014 from Food Analysis Laboratory in order to continue illegal gutkha business by private persons. The further case of the prosecution is that the petitioner/A6, used to receive bribe of Rs. 10,000/- to Rs. 25,000/- per month from A1-A3 during the relevant period and to this effect statement u/s. 164(5) Cr.PC of Shri Nandakumar, employee of A1 have been recorded. 4. The investigation has been completed and a final report has been filed before the Special Judge for CBI cases, Chennai on 02.11.2018. However, some more materials came to the attention of the respondent police and therefore, the respondent police is in the process of further investigation. 5. Mr. Nithyaesh Natraj, learned counsel appearing for the petitioner submitted that the petitioner who was working as a Food Safety Officer was performing his duty strictly in accordance with law. The learned counsel further submitted that this petitioner was called for enquiry nearly 16 times and he had attended every enquiry and had submitted his explanation and also the relevant documents. 6. The learned counsel further submitted that this petitioner was called for enquiry nearly 16 times and he had attended every enquiry and had submitted his explanation and also the relevant documents. 6. The learned counsel further submitted that immediately after the Government Order (GO) came into force on 23.05.2013, it was this petitioner who had taken steps to seize the banned tobacco products from M/s. Annamalai Industries. For this purpose, the learned counsel for the petitioner relied upon the seizure memo dated 15.07.2013 wherein, it is found that 20450 Kgs of Supari (Susceptible for Nicotine content), 19230 Kgs of Tobacco (Chewable/Carcinogenic) and 3000 Kgs of Perfumes (non permitted additives) were seized from M/s. Annamalai Industries and were transported in four lorries, in the presence of witnesses and were destroyed. For this purpose, the learned counsel also relied upon the materials showing the lorries in which the contra band was transported and also the particulars of the lorry drivers who had driven the vehicle. The learned counsel also relied upon the photographs showing the destruction of the entire contra band seized from M/s. Annamalai Industries. 7. The learned counsel further submitted that even thereafter, the petitioner conducted a raid and seized the tobacco products from M/s. Annamalai Industries and made M/s. Annamalai Industries to pay penalty before the concerned authority, which is evident from the proceedings of the Additional District Judge, Thiruvallur dated 12.05.2017. That apart, the petitioner was also instrumental in getting a conviction for A1 before the learned Judicial Magistrate II, Ponneri for an offence under Section 58, 59(i), 59(i) of Food Safety and Standard Act 2006 wherein, A1 was sentenced to pay a fine of Rs. 9,000/- in default simple imprisonment for one months U/s. 58 of the Act and sentenced to undergo imprisonment till raising of the Court and pay a fine of Rs. 9,000/- in default simple imprisonment for one month u/s. 59 (i) of the Act and a total fine of Rs. 18,000/-. 8. The learned counsel further submitted that this petitioner has already suffered incarceration for 164 days and he is being kept behind bars just because the case has become sensational and none of the other accused persons have been granted bail. 18,000/-. 8. The learned counsel further submitted that this petitioner has already suffered incarceration for 164 days and he is being kept behind bars just because the case has become sensational and none of the other accused persons have been granted bail. The learned counsel submitted that the investigation has been completed and a final report has been filed and therefore, there is no justification to keep this petitioner in jail continuously, more particularly due to the fact that prima facie materials are available to show that this petitioner has acted well within his authority and taken action against M/s. Annamalai Industries and A1. 9. Per contra, Mr. K. Srinivasan, learned Special Public Prosecutor appearing on behalf of the respondent submitted that the Commissioner of Food Safety and Drug Administration issued circular dated 28.05.2013 for the effective implementation of prohibition order by the designated officers of all the districts. As per the said circular, Pan Masala and Gutkha should not contain tobacco and nicotine and A4, who is the licensing authority and this petitioner did not take any effective steps for implementation of the prohibition. 10. The learned counsel submitted that A1 to A3 along with the accused public servant entered into a criminal conspiracy for manufacture and sale of Gutkha at Chennai and other places and a new firm in the name of M/s. Annamalai Industries was started at Redhills, Chennai. This concern submitted an application on 20.08.2013 for manufacture of Pan Masala and the said application was processed in the office of the designated officer. This petitioner knowing fully well that A1 to A3 were manufacturing Gutkha, recommended for issuing license. Pursuant to the same, A4 who is the designated officer issued a license by proceedings dated 18.09.2013 in favour of above said M/s. Annamalai Industries for the period from 18.09.2013 to 17.09.2014. 11. The learned counsel further submitted that A4 approached this Court seeking for bail in Crl. O.P. No. 26639 of 2018 and this Court by a detailed order dated 28.01.2019, dismissed the bail petition after finding that there is a prima facie evidence and a prima facie case which involves a huge scam. Similarly, the petition for bail filed by Accused No. 5 was also dismissed by this Court in Crl.O.P. No. 27220 of 2018 by an order dated 28.01.2019. 12. Similarly, the petition for bail filed by Accused No. 5 was also dismissed by this Court in Crl.O.P. No. 27220 of 2018 by an order dated 28.01.2019. 12. The learned counsel submitted that even though it is projected, as if, this petitioner has taken steps to seize the banned tobacco products, it was only made to appear that it has been destroyed and whereas in reality these products were not destroyed and the same is evident from the statement made by Shri. Nandakumar, who states that the petitioner has received illegal gratification ranging from Rs. 10,000/- to Rs. 25,000/- every month from A1 to A3 during the period from 2013-2016. The learned Special Public Prosecutor further submitted that raids were conducted during June 2014 by CCB, Tamil Nadu Police in three gutkha godowns and banned tobacco products were seized. However, this petitioner has certified on 12.06.2014 that no susceptible ingredients were found during the inspection. The learned counsel submitted that none of the goods that were seized was sent for Chemical Analysis to the Food Analysis Laboratory. Even during the period from 2014 to July 2016, the petitioner did not take any sample from the factory premises of M/s. Annamalai Industries and thereby, this petitioner had indirectly allowed the gutkha manufacturers to produce gutkha in the guise of Pan Masala. The learned counsel submitted that if this petitioner had taken effective steps to monitor the Pan Masala production at the factory premises of M/s. Annamalai Industries during the period from 2013 to 2016, the entire illegal manufacture of gutkha could have been stopped. 13. The learned special Public Prosecutor concluded his arguments stating that this gutkha business is a crime against society which has very serious consequence against the general public and that is the reason why, this Court while passing orders in WP No. 19335 of 2018 dated 26.04.2018, thought it fit to entrust the investigation to the CBI. 14. This Court has carefully considered the submissions made on either side. 15. It is true that the offence projected by the prosecution is really serious and it has a direct impact against the society. Therefore, this Court has to bear this in mind while deciding this bail petition, since the gravity of the offence and the accusation made in this case are very serious. 16. 15. It is true that the offence projected by the prosecution is really serious and it has a direct impact against the society. Therefore, this Court has to bear this in mind while deciding this bail petition, since the gravity of the offence and the accusation made in this case are very serious. 16. This Court must also keep in mind the guidelines given by the Hon'ble Supreme Court in Sanjay Chandra Vs. CBI reported in 2012-1-L.W. (Crl) 46 : (2012) 1 SCC 40 , wherein it has been held as follows: “37. The principles, which the Court must consider while granting or declining bail, have been culled out by this Court in Prahlad Singh Bhati v. NCT, Delhi, (2001) 4 SCC 280 : 2001 SCC (Cri) 674 thus: (SCC pp. 284-85, para 8) “8. The jurisdiction to grant bail has to be exercised on the basis of well-settled principles having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail, the court has to keep in mind the nature of accusations, the nature of [the] evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the legislature has used the words 'reasonable grounds for believing' instead of 'the evidence' which means the court dealing with the grant of bail can only satisfy it (sic itself) as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt.” 38. In State of U.P. v. Amarmani Tripathi, (2005) 8 SCC 21 : 2005 SCC (Cri) 1960 (2) this Court held as under: “18. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt.” 38. In State of U.P. v. Amarmani Tripathi, (2005) 8 SCC 21 : 2005 SCC (Cri) 1960 (2) this Court held as under: “18. It is well settled that the matters to be considered in an application for bail are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail, see Prahlad Singh Bhati v. NCT, Delhi (2001) 4 SCC 280 : 2001 SCC (Cri) 674 and Gurcharan Singh v. State (Delhi Admn.) (1978) 1 SCC 118 :1978 SCC (Cri) 41 : AIR 1978 SC 179 . While a vague allegation that the accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused. We may also refer to the following principles relating to grant or refusal of bail stated in Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528 : 2004 SCC (Cri) 1977 : (SCC pp. 535-36, para 11) '11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are: (a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence. (b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant. (c) Prima facie satisfaction of the court in support of the charge. 22. While a detailed examination of the evidence is to be avoided while considering the question of bail, to ensure that there is no prejudging and no prejudice, a brief examination to be satisfied about the existence or otherwise of a prima facie case is necessary.” 17. The sum and substance of the charge against this petitioner is that this petitioner in his capacity as a Food Safety Officer had recommended the issuance of license to M/s. Annamalai Industries to manufacture Pan Masala, fully knowing well that A1 to A3 were manufacturing gutkha in the guise of Pan Masala. It is stated by the prosecution that from the year 2014 to 2016, this petitioner did not take any sample from the factory premises of M/s. Annamalai Industries and he had allowed the gutkha manufacturers to produce gutkha in the guise of Pan Masala. For this purpose, the petitioner is said to have received illegal gratification from the accused persons as per the statement of Shri. Nanda Kumar which was recorded under Section 164 Cr.PC by the Magistrate. It is further alleged that this petitioner even though has created records as if, the banned tobacco products were seized from the factory premises and destroyed the same. It was only made to appear so and actually this petitioner had returned back the materials of the accused persons. 18. The learned counsel for the petitioner brought to the notice of this Court the steps taken by this petitioner in the year 2013, immediately after the circular was issued to various departments by the Commissioner of Food Safety. The Seizure memo produced before this Court reveals the fact that 20450 Kgs of Supari (Susceptible for Nicotine content), 19230 Kgs of Tobacco (Chewable/Carcinogenic) and 3000 Kgs of Perfumes (non permitted additives) were seized from M/s. Annamalai Industries and was loaded in the vehicles for the purpose of destruction. The Seizure memo produced before this Court reveals the fact that 20450 Kgs of Supari (Susceptible for Nicotine content), 19230 Kgs of Tobacco (Chewable/Carcinogenic) and 3000 Kgs of Perfumes (non permitted additives) were seized from M/s. Annamalai Industries and was loaded in the vehicles for the purpose of destruction. The particulars of the lorries in which it was loaded and the witnesses in whose presence it was done is also found in the said seizure memo. 19. It can also be seen that samples have been taken from M/s. Annamalai Industries and has been sent for Chemical analysis before the Food Analysis Laboratory during the year 2014. It can also be seen that this petitioner had taken steps against M/s. Annamalai Industries and A1, which resulted in levy of penalty by the Additional District Judge, Thiruvallur and conviction and sentence by learned Judicial Magistrate II, Ponneri. 20. The prosecution is heavily relying upon the statement of Shri. Nandakumar recorded under 164 of Cr.PC. This person is an employee who was working under A1, who had categorically stated about the various illegal gratification paid to the public servants for the purpose of continuing the manufacture of gutkha products and insofar as this petitioner is concerned, he categorically states that this petitioner was paid every month between Rs. 10,000/- to Rs. 25,000/- as illegal gratification. 21. The test reports that have been filed before this Court by the petitioner in the year 2014 shows as if, the nicotine content was absent in the sample taken from the factory. However, when the raid was conducted by CCB, Tamil Nadu at the gutkha godowns belonging to M/s. Annamalai Industries and the finished Pan Masala was seized, this petitioner on 12.06.2014 had obtained the surety bond and handed over the entire seized items to M/s. Annamalai Industries. Instead of sending samples from the contra band seized and hand over by the Central Crime Branch police, this petitioner had sent Pan Masala, betel nut and cardamom seeds which is said to have been taken as samples during the inspection carried out by the Food Safety Officer on 12.06.2014 and this petitioner has obtained test reports to the effect that the above said products did not contain Nicotine. This Court is bewildered as to why this petitioner instead of sending samples from the contra band seized by the police, chose to send samples independently on 12.06.2014. This Court is bewildered as to why this petitioner instead of sending samples from the contra band seized by the police, chose to send samples independently on 12.06.2014. This act of the petitioner raises a very strong suspicion about the involvement of the petitioner in the crime. This has been clearly explained by the respondent in the Counter filed before this Court at Paragraph No. 9(i), 9(j) and 9(k). 22. Yet another important aspect to which the attention of this Court has been drawn is that, even though the petitioner is said to have seized the finished products on 28.02.2014, as mentioned above, surprisingly, no samples were taken and sent for analysis and the products were straight away alleged to have been destroyed. It is not known as to why, the petitioner resorted to destroy the entire products without obtaining the report by taking samples from the seized products. The seizure and the destruction has happened on the same day. 23. It is seen that Shri. Nandakumar has given a statement that on 05.03.2014, Commercial Tax Officials, Chennai sealed the factory premises of M/s. Annamalai Industries stating that they were doing illegal Gutkha business using tobacco and other banned items and also evaded the taxes. Thereafter, Shri. A.V. Madhava Rao (A-1) requested the petitioner/Shri Sivakumar (A-6), Food Safety Officer to prepare forged documents as if tobacco and other materials were seized and destroyed prior to sealing of the factory. Accordingly, the petitioner/Shri Sivakumar (A-6) along with Shri Murugan, another Food Safety Officer, Gummidipoondi, Tiruvallur District, who was working under the Supervision of Dr. Senthil Murugan (A-4), prepared the forged documents/proceedings, as if huge quantity of tobacco, Supari and perfumes were seized from M/s. Annamalai Industries on 28.02.2014 and the same was destroyed on 28.02.2014 itself. Subsequently, the said proceedings were submitted to the Commercial Tax official who removed the seal of the factory premises of M/s. Annamalai Industries. 24. It is also seen that even though the seizure of the entire products and the distribution of the same is said to have happened in 2014, this petitioner did not take any legal action against A1 to A3 till July 2016. The income tax department conducted a raid at the factory premises of M/s. Annamalai Industries on 08.07.2016. 24. It is also seen that even though the seizure of the entire products and the distribution of the same is said to have happened in 2014, this petitioner did not take any legal action against A1 to A3 till July 2016. The income tax department conducted a raid at the factory premises of M/s. Annamalai Industries on 08.07.2016. It is only after this raid, the petitioner has taken samples on 09.09.2016 and sent the same for Chemical analysis and thereafter launches prosecution, which ultimately ended up in conviction in the year 2017. It is indeed a mystery as to why no such action was taken between July 2014 to July 2016. A combined reading of the entire materials that are available on record, prima facie establishes the involvement of this petitioner in the entire conspiracy with the other accused persons. 25. It is now submitted that the respondent is in the process of further investigation in order to unravel some more materials in this case. 26. It is a settled law that bail is the rule and jail is the exception. However, in a case of this nature, this Court has to necessarily keep in mind the larger public interest that is involved. Even though at the stage of granting bail, a detailed examination of evidence and elaborate documents on the merit of the case need not be undertaken, there is a need to indicate in such orders, reasons for prima facie concluding why bail is being granted, more particularly, where the accused is charged of having committed a serious offence. 27. In the instant case, taking into consideration the gravity of offence, the public interest involved, the materials so far collected by the investigating agency and the further investigation that is going on in this case, this Court does not find any ground to grant bail to the petitioner and accordingly, this Criminal Original Petition is dismissed.