JUDGMENT Mr. Anoop Chitkara, J. FIR No. Dated Police Station Sections 09 25.08.2022 SVB Panchkula, District State Vigilance Bureau, Panchkula, Haryana 379, 414, 420 IPC; 4/21 of Mines and Minerals (Development & Regulation) Act, 1957 and 13(2), 13(1) (a) of Prevention of Corruption Act, 1988 (120-B, 406, 409 IPC added later on) The petitioner, who is in custody from 11.4.2024 in the FIR captioned above has come up before this Court under Section 439 CrPC seeking bail. 2. In paragraph 35 of the bail petition, the accused declares that he has no criminal antecedents. 3. It would be appropriate to refer to para 3 of the bail petition, which reads as follows: 3. That the petitioner is filling the present regular bail petition directly before this Hon'ble Court in the wake of order dated 08.04.2024 passed by this Hon'ble Court in the petition bearing CRM-M-4430 of 2024 filed by the said firm for quashing of the aforesaid FIR. Even otherwise, this Hon'ble Court has concurrent jurisdiction to entertain and adjudicate the present regular bail petition in terms of provisions of Section 439 Cr.P.C. This is first petition for grant of regular bail. 4. The facts of the case are being taken from the reply dated 18.04.2024 filed by the concerned Deputy Superintendent of Police, which reads as follows: "1. That there was source information to the effect that Government Revenue such as GST (CGST/SGST) & Royalty is being evaded by way of taking material from the mine at Ratewali, Panchkula in Trucks/Dumpers without issuing any bills and mining beyond permissible limit by M/s Tirupati Roadways Mine at village Ratewali. In order to verify the said source information, a team was formed who conducted Surprise Check on the site of M/s Tirupati Roadways Mine at village Ratewali on 11.05.2022. During the said check, relevant record/documents and data from the computers/desktops relating to bills i.e. E-Rawana bills etc. was seized. Perusal/scrutiny of the said record/data collected during the said Surprise Check by the team of Anti Corruption Bureau, Panchkula revealed that during the period of 06 days from 05.05.2022 to 11.05.2022, a total number of 1868 Trucks/Dumpers were found to have been taken out the material/mineral (i.e. Graval, Sand, Stone etc.) from the Mining Site of M/s Tirupati Roadway Mine. Whereas, bills mentioning CGST/SGST and Royalty etc. of only 518 Trucks/Dumper were found to be issued. 2. Whereas, bills mentioning CGST/SGST and Royalty etc. of only 518 Trucks/Dumper were found to be issued. 2. That in order to further ascertain the amount of illegal extraction of material/minerals, a survey/measurement was carried out with the help of officers/officers of HARSAC, Gurugram and the Mining Deptt., Haryana, Panchkula M/s Tirupati Roadways at Ratewali, Panchkula, Haryana on 13.05.2022 at the site of Mine in presence of officers of District Mining and Department Mining & Geology, Haryana to verify as to how much volume of material has been extracted from the said river/mine. Vide report No. HARSAC/GGM/2022/203-205 dated 06.06.2022 of the Principal Scientist, HARSAC, Gurugram the total volume extracted was reported to be 17,66,079.68 MT (47.66 LTPA) which as per the terms and conditions of tender comes out to be 5 - 6 times more than the permissible range. 3. That as per clause 21 (A) of the Specific Conditions of Environment Clearance letter No.J-11015/75/2017-IA. II(M) dated 21.02.2020 issued to M/s Tirupati Roadways, Rattewali, Panchkula, the permissible mining of river bed material (Boulder, Gravel and Sand) shall be limited to only 8.39 LTPA (8390000 MT) instead of requested 19 LTPA from an effective minable area of 24.25 Ha with a maximum minable depth of 1.33 Meters from the original ground level. 4. That as established, the total volume of material extracted by the owner of the firm M/s Tirupati Roadways at Rattewali, was 5-6 times more than the permissible limit in a year. Thus, a huge loss of about Rs. 35 Crores of revenue has been caused to the Government of Haryana by the owners of said firm by violating rules and without issuing bills of Royalty and extracting huge amount of material beyond the permissible range. 5. That in order to further ascertain the role of officers/officials of the mining department and to crack the whole conspiracy in the matter, a detailed report was sent to the Chief Secretary, Government of Haryana, Vigilance Department, Chandigarh for registration of criminal case under section 420, 379, 414 of IPC and section 4/21 of Mines and Mineral (Development and Regulatory) Act 1957 (MMDR Act 1957) and 13 (1) (a) r/w 13(2) of PC Act against owners of the said firm and the unknown Government servants of Mining Department Panchkula office. On receipt of permission of the Competent Authority i.e. Chief Secretary, Govt. On receipt of permission of the Competent Authority i.e. Chief Secretary, Govt. of Haryana, Vigilance Department vide order Endorsement No. 32/12/2022-4VI dated 16.08.2022 and further order issued vide endorsement 13345/1-1/SVB(H) dated 18.08.2022 of the DG/SVB/Haryana an FIR No.09 dated 25.08.2022, under section 420, 379, 414 of IPC and section 4/21 of Mines and Mineral (Development and Regulatory) Act 1957 (MMDR Act 1957) and 13 (2) r/w 13(1)(a) of PC Act has Been registered in the present case against the owners of the said firm and the unknown public servants of Mining Department of Panchkula and investigation is going on. 6. That during investigation, record relating to execution of mining contract executed between the Government of Haryana and M/s Tirupati Roadways and other relevant documents are obtained from the concerned which revealed that on 04.12.2018, the mining contract was executed between the Government of Haryana and M/s Tirupati Roadways through its authorized signatory Gurpreet Singh Sabarwal, the petitioner (duly authorized by his father Sh. Lakhmir Singh bharwal as per the Power of Attorney dated 19.08.2017)." 5. Counsel for the petitioner submits that the FIR was registered way back in the year 2022 and his custody was not required. However, he had approached this Court by filing a quashing petition which was registered as CRM-M-4430-2024 and because of that reason now without any legal ground, he was arrested and put behind bars. 6. Counsel for the petitioner seeks bail on the grounds that the allegations of the extra excavation based on the numbers of dumpers counted by the authority are baseless because it would also contain mud/clay constituting the soil's top layer as well as impurities. Further when the actual mineral is extracted, it ranges from 20% to 40% depending upon area, location, time, seasons etc. Thus the premises on which the prosecution has been made is contrary to the ground realities. 7. Petitioner's counsel prays for bail by imposing any stringent condition(s) and is also voluntarily agreeable to the condition that till the conclusion of the trial, the petitioner shall keep only one mobile number, which is mentioned in AADHAR card, if any, and within fifteen days undertakes to disconnect all other mobile numbers. The petitioner contends that custodial interrogation and pre-trial incarceration would cause an irreversible injustice to the petitioner and family. 8. The petitioner contends that custodial interrogation and pre-trial incarceration would cause an irreversible injustice to the petitioner and family. 8. State counsel opposes the bail by submitting that the petitioner has spoiled the environment and extracted minerals violating the terms of license and instructions issued from time to time. In addition to that, there is a violation of GST. He further submits that petition is not maintainable as petitioner chose to file petition straightway before this Court and custody of petitioner is only of 15 days in this case, which is not enough to consider his case for bail. 9. Given the pre-trial custody, coupled with the primafacie analysis of the nature of allegations, and the other factors peculiar to this case, there would be no justifiability for further pre-trial incarceration at this stage, subject to the compliance of terms and conditions mentioned in this order. Furthermore, the petitioner is a first offender, and one of the relevant factors would be to provide an opportunity to course correct. Even a primafacie perusal of paragraph 2 of the bail petition needs consideration for bail. 10. In the present case, the petitioner chose to come straightway to this Court and has given reasons for that in para no. 3 of petition. Reasons for filing petition before this Court is that during the pendency of the quashing petition when petitioner prayed for stay on proceeding/investigation, this Court permitted him to file petition under Section 438 CrPC. Given the explanation, there would be no justification to dismiss the present petition only on the grounds that he has forfeited one of his rights to file a petition firstly to the Sessions Court. In fact by straightway coming to this Court any accused would lose one of the statutory right of getting their bail petition adjudicated by the Sessions Court first. In this process such an accused, who comes straightway to this Court in exercise of the concurrent jurisdiction under Section 439 CrPC would be deprived of jurisdiction of this Court under Article 227 of the Constitution of India. If an accused first files a bail petition before the Sessions Court and the same is rejected they still have right to exercise the jurisdiction of this Court under Section 439 CrPC which is also concurrent jurisdiction of this Court. If an accused first files a bail petition before the Sessions Court and the same is rejected they still have right to exercise the jurisdiction of this Court under Section 439 CrPC which is also concurrent jurisdiction of this Court. Thus, in entirety it is such an accused, who would be loser by first coming to the High Court under Section 439 CrPC. If such an accused makes a concession not to claim prejudice in case of dismissal of their regular bail petition by High Court under Section 439 CrPC then there is no reason for this Court not to entertain such petition when filed straightway in this Court. 11. Given above, the petitioner coming and filing a petition straightway to this Court is also not a ground not to entertain the same or to continue his detention just for these technical reasons. An analysis of above said submissions would lead to the outcome that the petitioner is in judicial custody from 11.04.2024. His remand is judicial not police. Thus, his current custody in a prison is not going to render any help to the investigator at this stage. Simply because, the custody is from 11.04.2024 i.e. only for 15 days is not a ground to deny bail to the petitioner. 12. In Gurbaksh Singh Sibbia v. State of Punjab, 1980 (2) SCC 565 , (Para 30), a Constitutional Bench of Supreme Court held that the bail decision must enter the cumulative effect of the variety of circumstances justifying the grant or refusal of bail. In Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav, 2005 (2) SCC 42 , (Para 18) a three-member Bench of Supreme Court held that the persons accused of non-bailable offences are entitled to bail if the Court concerned concludes that the prosecution has failed to establish a prima facie case against him, or despite the existence of a prima facie case, the Court records reasons for its satisfaction for the need to release such person on bail, in the given fact situations. The rejection of bail does not preclude filing a subsequent application. The courts can release on bail, provided the circumstances then prevailing require, and a change in the fact situation. The rejection of bail does not preclude filing a subsequent application. The courts can release on bail, provided the circumstances then prevailing require, and a change in the fact situation. In State of Rajasthan v. Balchand, AIR 1977 SC 2447 , (Para 2 & 3), Supreme Court noticeably illustrated that the basic rule might perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like by the petitioner who seeks enlargement on bail from the Court. It is true that the gravity of the offence involved is likely to induce the petitioner to avoid the course of justice and must weigh when considering the question of jail. So also, the heinousness of the crime. In Gudikanti Narasimhulu v. Public Prosecutor, (1978) 1 SCC 240 , (Para 16), Supreme Court held that the delicate light of the law favors release unless countered by the negative criteria necessitating that course. In Prahlad Singh Bhati v. NCT, Delhi, (2001) 4 SCC 280 , Supreme Court highlighted one of the factors for bail to be the public or the State's immense interest and similar other considerations. In Dataram Singh v. State of Uttar Pradesh, 2018:INSC:107 [Para 7], (2018) 3 SCC 22 , (Para 6), Supreme Court held that the grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously, compassionately, and in a humane manner. Also, conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory. 13. The possibility of the accused influencing the investigation, tampering with evidence, intimidating witnesses, and the likelihood of fleeing justice, can be taken care of by imposing elaborative and stringent conditions. In Sushila Aggarwal v. State (NCT of Delhi), 2020:INSC:106 [Para 92], (2020) 5 SCC 1 , Para 92, the Constitutional Bench held that unusually, subject to the evidence produced, the Courts can impose restrictive conditions. 14. In Sushila Aggarwal v. State (NCT of Delhi), 2020:INSC:106 [Para 92], (2020) 5 SCC 1 , Para 92, the Constitutional Bench held that unusually, subject to the evidence produced, the Courts can impose restrictive conditions. 14. Without commenting on the case's merits, in the facts and circumstances peculiar to this case, and for the reasons mentioned above, the petitioner makes a case for bail, subject to the following terms and conditions, which shall be over and above and irrespective of the contents of the form of bail bonds in chapter XXXIII of CrPC, 1973. 15. In Madhu Tanwar and Anr. v. State of Punjab, 2023:PHHC:077618 [Para 10, 21], CRM-M-27097-2023, decided on 29-05-2023, this court observed [10] The exponential growth in technology and artificial intelligence has transformed identification techniques remarkably. Voice, gait, and facial recognition are incredibly sophisticated and pervasive. Impersonation, as we know it traditionally, has virtually become impossible. Thus, the remedy lies that whenever a judge or an officer believes that the accused might be a flight risk or has a history of fleeing from justice, then in such cases, appropriate conditions can be inserted that all the expenditure that shall be incurred to trace them, shall be recovered from such person, and the State shall have a lien over their assets to make good the loss. [21] In this era when the knowledge revolution has just begun, to keep pace with exponential and unimaginable changes the technology has brought to human lives, it is only fitting that the dependence of the accused on surety is minimized by giving alternative options. Furthermore, there should be no insistence to provide permanent addresses when people either do not have permanent abodes or intend to re-locate. 16. Given above, provided the petitioner is not required in any other case, the petitioner shall be released on bail in the FIR captioned above, in the following terms: (a). Petitioner to furnish personal bond of Rs. Ten thousand (INR 10,000/); AND (b) To give one surety of Rs. Twenty-five thousand (INR 25,000/-), to the satisfaction of the concerned court, and in case of non-availability, to any nearest Ilaqa Magistrate/duty Magistrate. Before accepting the surety, the concerned court must satisfy that if the accused fails to appear in court, then such surety can produce the accused before the court. OR (b). Petitioner to hand over to the concerned court a fixed deposit for Rs. Before accepting the surety, the concerned court must satisfy that if the accused fails to appear in court, then such surety can produce the accused before the court. OR (b). Petitioner to hand over to the concerned court a fixed deposit for Rs. Ten thousand only (INR 10,000/-), with the clause of automatic renewal of the principal and the interest reverting to the linked account, made in favor of the 'Chief Judicial Magistrate' of the concerned district, or blocking the aforesaid amount in favour of the concerned 'Chief Judicial Magistrate'. Said fixed deposit or blocking funds can be from any of the banks where the stake of the State is more than 50% or from any of the well-established and stable private sector banks. In case the bankers are not willing to make a Fixed Deposit in such eventuality it shall be permissible for the petitioner to prepare an account payee demand draft favouring concerned Chief Judicial Magistrate for a similar amount. (c). Such court shall have a lien over the funds until the case's closure or discharged by substitution, or up to the expiry of the period mentioned under Section 437A CrPC, 1973, and at that stage, subject to the proceedings under Section 446 CrPC, the entire amount of fixed deposit, less taxes if any, shall be endorsed/returned to the depositor. (d). The petitioner is to also execute a bond for attendance in the concerned court(s) as and when asked to do so. The presentation of the personal bond shall be deemed acceptance of the declarations made in the bail petition and all other stipulations, terms, and conditions of section 438(2) of the Code of Criminal Procedure, 1973, and of this bail order. (e). While furnishing personal bond, the petitioner shall mention the following personal identification details: 1. Aadhar number 2. Passport number, (If available), when the attesting officer/court thinks appropriate or considers the accused as a flight risk. 3. Mobile number (If available) 4. E-Mail id (If available) 17. The petitioner is directed not to keep more than one prepaid SIM, i.e., one pre-paid mobile phone number, till the conclusion of the trial; however, this restriction is only on prepaid SIMs [mobile numbers] and not on post-paid connections or landline numbers. The petitioner must comply with this condition within fifteen days of release from prison . The petitioner is directed not to keep more than one prepaid SIM, i.e., one pre-paid mobile phone number, till the conclusion of the trial; however, this restriction is only on prepaid SIMs [mobile numbers] and not on post-paid connections or landline numbers. The petitioner must comply with this condition within fifteen days of release from prison . The concerned DySP shall also direct all the telecom service providers to deactivate all prepaid SIM cards and prepaid mobile numbers issued to the petitioner, except the one that is mentioned as the primary number/default number linked with the AADHAAR card and further that till the no objection from the concerned SHO, the mobile service providers shall not issue second pre-paid SIM/mobile number in the petitioner's name. Since, as on date, in India, there are only four prominent mobile service providers, namely BSNL, Airtel, Vodafone-Idea, and Reliance Jio, any other telecom service provider are directed to comply with the directions of the concerned Superintendent of Police/Commissioner of Police, issued in this regard and disable all prepaid mobile phone numbers issued in the name of the petitioner, except the main number/default number linked with AADHAR, by taking such information from the petitioner's AADHAR details or any other source, for which they shall be legally entitled by this order. This condition shall continue till the completion of the trial or closure of the case, whichever is earlier. In Vernon v. The State of Maharashtra, 2023 INSC 655 , [para 45], while granting bail under Unlawful Activities (Prevention) Act, 2002, Supreme Court had directed imposition of the similar condition, which reads as follows, "(d) Both the appellants shall use only one Mobile Phone each, during the time they remain on bail and shall inform the Investigating Officer of the NIA, their respective mobile numbers." 18. The petitioner shall not influence, browbeat, pressurize, make any inducement, threat, or promise, directly or indirectly, to the witnesses, the Police officials, or any other person acquainted with the facts and the circumstances of the case, to dissuade them from disclosing such facts to the Police, or the Court, or to tamper with the evidence. 19. During the trial's pendency, if the petitioner repeats or commits any offence where the sentence prescribed is more than seven years or violates any condition as stipulated in this order, it shall always be permissible to the respondent to apply for cancellation of this bail. 19. During the trial's pendency, if the petitioner repeats or commits any offence where the sentence prescribed is more than seven years or violates any condition as stipulated in this order, it shall always be permissible to the respondent to apply for cancellation of this bail. It shall further be open for any investigating agency to bring it to the notice of the Court seized of the subsequent application that the accused was earlier cautioned not to indulge in criminal activities. Otherwise, the bail bonds shall remain in force throughout the trial and after that in Section 437A of the Cr.P.C., if not cancelled due to non-appearance or breach of conditions. 20. The conditions mentioned above imposed by this Court are to endeavour that the accused does not repeat the offence and to provide an opportunity to the victim to consider legal remedies for recovery of the amount. In Mohammed Zubair v. State of NCT of Delhi, 2022:INSC:735 [Para 28], Writ Petition (Criminal) No 279 of 2022, Para 29, decided on July 20, 2022, A Three-Judge bench of Hon'ble Supreme Court holds that "The bail conditions imposed by the Court must not only have a nexus to the purpose that they seek to serve but must also be proportional to the purpose of imposing them. The courts while imposing bail conditions must balance the liberty of the accused and the necessity of a fair trial. While doing so, conditions that would result in the deprivation of rights and liberties must be eschewed." 21. Any Advocate for the petitioner and the Officer in whose presence the petitioner puts signatures on personal bonds shall explain all conditions of this bail order in any language that the petitioner understands. 22. If the petitioner finds the bond amount beyond social and financial reach, it may be brought to the notice of this Court for appropriate reduction. Further, if the petitioner finds bail condition(s) as violating fundamental, human, or other rights, or causing difficulty due to any situation, then for modification of such term(s), the petitioner may file a reasoned application before this Court, and after taking cognizance, even to the Court taking cognizance or the trial Court, as the case may be, and such Court shall also be competent to modify or delete any condition. 23. 23. This order does not, in any manner, limit or restrict the rights of the Police or the investigating agency from further investigation as per law. 24. In case the Investigator/Officer-In-Charge of the concerned Police Station arraigns another section of any penal offence in this FIR, and if the new section prescribes maximum sentence which is not greater than the sections mentioned above, then this bail order shall be deemed to have also been passed for the newly added section(s). However, suppose the newly inserted sections prescribe a sentence exceeding the maximum sentence prescribed in the sections mentioned above, then, in that case, the Investigator/Officer-In-Charge shall give the petitioner notice of a minimum of seven days providing an opportunity to avail the remedies available in law. 25. Any observation made hereinabove is neither an expression of opinion on the merits of the case nor shall the trial Court advert to these comments. 26. In return for the protection from incarceration, the Court believes that the accused shall also reciprocate through desirable behaviour. 27. The SHO of the concerned police station or the investigating officer shall arrange to send a copy of this order, preferably a soL copy, to the complainant and the victim, without any delay. If the victim(s) notice any violation of this order, they may inform the SHO of the concerned police station, the trial court, or even this court. 28. There would be no need for a certified copy of this order for furnishing bonds, and any Advocate for the Petitioner can download this order along with case status from the official web page of this Court and attest it to be a true copy. In case the attesting officer wants to verify the authenticity, such an officer can also verify its authenticity and may download and use the downloaded copy for attesting bonds. Petition allowed in aforesaid terms. All pending applications, if any, stand disposed.