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IN THE HIGH COURT OF JUDICATURE AT PATNA
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Criminal Appeal (SJ) Nos.507,546,550 and 551 of 2011
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Against the order dated 17.3.2011 passed by the Additional
District and Sessions Judge-VI-cum-Authorised Officer, Special
Court No.2, Vigilance, Patna, in Special Case No.3 of 2010
arising out of Special Vigilance Unit Case No. 2 of 2007.
—-
1. Shiva Shankar Verma , son of Sri Ram Pal Verma, the then Secretary, Minor
Irrigation, Govt. of Bihar, Patna, resident of House No. 406, Saubhagya
Sharma Path, Rukanpura, Bailey Road, Patna-1
2. Smt. Usha Verma, wife of Shri Shiva Shankar Verma, resident of House No.
406,Saubhagya Sharma Path, Rukanpura, Bailey Road, Patna-1
… … Appellants
Versus
1. The State Of Bihar through Vigilance
2. Sri Ashok Kumar Chauhan, Principal Secretary, Vigilance Department, Govt.
of Bihar, Patna
3. Sri Janki Nandan Chaudhary, D.S.P., Special Vigilance Unit, Govt. of Bihar
through Inspector General, Vigilance, Special Vigilance Unit, Bihar
…. …. Respondents
( in Cr. Appeal No. 507 of 2011)
with
Criminal Appeal (SJ) No. 546 of 2011
Dr. Upendra Prasad Singh, son of late Rambachan Singh, resident of Professor‟s
Colony, Kankarbagh, P.S. Patrakarnagar, District Patna
…. …. Appellant
Versus
The State Of Bihar Through Vigilance
…. …. Respondent
with
Criminal Appeal (SJ) No. 550 of 2011
Ram Pal Verma @ Ram Pal, son of late Ram Sevak, Resident of Village Garha,
P.S. Nagram, District Lucknow ( U.P.)
…. …. Appellant
Versus
1. The State Of Bihar through Vigilance
2. Sri Ashok Kumar Chauhan, Principal Secretary, Vigilance Department, Govt.
of Bihar, Patna
3. Sri Janki Nandan Chaudhary, D.S.P., Special Vigilance Unit, Govt. of Bihar
through Inspector General, Vigilance, Special Vigilance Unit, Bihar
…. …. Respondents
with
Criminal Appeal (SJ) No. 551 of 2011
1. Shyam Lal Singh, son of late Ram Milan Singh, resident of Village
Dedaur,P.S.Gurbaxganj, District Rai Bareli
2. Chandra Pal Singh, son of Shri Shyam Lal Singh, resident of Village
Dedaur, P.S.Gurbaxganj, District Rai Bareli
3. Krishna Pal Singh, son of Shri Shyam Lal Singh, resident of Village
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Dedaur, P.S/.Gurbaxganj,District Rai Bareli
4. Smt. SumanVerma alis Suman Lata Verma, wife of Devendra Kumar
Verma, resident of Village Raja Ram Kapaurwa, P.S.Shivgarh, District
Rai Bareli
…. …. Appellants
Versus
1. The State of Bihar through Vigilance
2. Shri Ashok Kumar Chauhan, Principal Secretary, Vigilance Department,
Government of Bihar, Patna
3. Shri Janki Nandan Chaudhary, Dy. S.P., Special Vigilance Unit
…. …. Respondents
Appearance :
(In CR. APP (SJ) No. 507,550 and 551 of 2011)
For the Appellant/s : Shri Rana Pratap Singh, Sr. Advocate
Shri Chittaranjan Sinha, Sr. Advocate
Shri Sumat Singh, Advocate
Shri Rajeshwar Prasad, Advocate
Shri Anirban Kundu, Advocate
Shri Krishna Narayan Jha, Advopcate
Shri Sanjay Kumar Singh, Advocate
(In CR. APP (SJ) No. 546 of 2011)
For the Appellant : Shri Chandra Shekhar, Sr. Advocate
Shri Lal Babu Singh, Advocate
For the Respondents : Shri Rama Kant Sharma, Sr. Advocate
(In all the appeals) Shri Arvind Kumar, Advocate
Shri Santosh Kumar Pandey, Advocate.
PRESENT
THE HONOURABLE SHRI JUSTICE DHARNIDHAR JHA
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Dharnidhar Jha, J.- The present batch of four appeals arises out of an order passed by
the learned Additional District and Sessions Judge-cum-Authorised Officer,
Patna, on 17.3.2011 under Section 15 of the Bihar Special Courts Act, 2009, in
connection with Special Case No. 3 of 2010 arising out of Special Vigilance Unit
Case No. 2 of 2007 under Section 13(2) read with Section 13(1)(e) of the
Prevention of Corruption Act, 1988 by which the learned Authorised Officer
directed the assets belonging to appellant Shivashankar Verma worth Rs.
1,43,96,265/- be confiscated to the State of Bihar. It was further directed that
appellant Shivashankar Verma surrender or deliver possession of the assets
shown in paragraph 24 of Annexure- IV appearing at serial nos. 1 to 13 to the
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District Magistrate, Patna who was to take possession of all the movable and
immovable assets within thirty days from the date of the service of the order,
failing which the District Magistrate, Patna or the Authorised Officer was to take
possession by taking all coercive steps in view of the provision contained in
Section 18(2) of the Bihar Special Courts Act, 2009.
2. The two appellants of Cr. Appeal No. 507 of 2011, namely, Shivashankar
Verma and Smt. Usha Verma, are spouses, Shivashankar Verma on the relevant
date being the Secretary, Department of Minor Irrigation, Govt. of Bihar, Patna.
The appellant in Cr. Appeal No.546 of 2011 Dr. Upendra Prasad Singh has been
held to be an abettor by attempting to conceal the property relating to Khata No.
2, Plot No. 96, Phulwari, Alipur. Appellant Ram Pal Verma alias Ram Pal
(appellant in Cr. Appeal No. 550 of 2011) is the father of appellant Shivshankar
Verma whereas appellants Shyam Lal Singh, Chandra Pal Singh and Krishna Pal
Singh are the father-in-law and brothers-in-law of appellant Shivashankar Verma.
Appellant No. 4 Smt.Suman Verma alias Suman Lata Verma is the sister of
appellant Smt.Usha Verma, and they have equally been arrayed as persons who
connived with the appellant Shivashankar Verma in concealing the assets earned
by him which was disproportionate to his known sources of income in various
ways, as may appear from the discussions likely to be made by me while
considering the four appeals. Thus, what is admitted is that except appellant Dr.
Upendra Prasad Singh, the solitary appellant in Cr. Appeal No.546 of 2011, all
the appellants are related to each other either by blood or by marriage.
3. As appears from the statements of facts made by the learned lower court,
i.e., the Authorised Officer, Special Vigilance Unit Case No.2 of 2007 was
instituted on 3.7.2007 under Section 13(2) read with Section 13(1)(e) of the
Prevention of Corruption Act on the basis of reliable source of information that
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appellant Shivashankar Verma, Secretary, Minor Irrigation Department, Govt. of
Bihar was in possession of assets disproportionate to the known source of his
income worth Rs. 6,87,000/- in form of movable and immovable properties.
While the case was being investigated into, huge properties amassed by appellant
Shiva Shankar Verma was allegedly discovered which were quite
disproportionate to the known sources of his income.
4. It was stated by the State of Bihar in its petition under Section 13 of the
Bihar Special Courts Act, 2009( „Act‟ in short) that during search operations on
6.7.2007 in connection with the above noted case, cash of Rs. 1,64,990/- and 578
Dollars which were of the value of Rs. 24,854/-, were recovered and seized from
the house of appellant Shiva Shankar Verma, that‟s, House No.406, Saubhagya
Sharma Patha, Rukanpura, Bailey Road, Patna-1. The above recoveries were
made on 6.7.2007. Besides the above amount of cash in Indian and foreign
currencies, other articles were also found there but they were not seized in spite of
being shown in the inventory papered on the spot in presence of the family
members of the appellant Shiva Shankar Verma. Those articles were found valued
at Rs. 22,14,893/- as shown in Annexure 3 to the petition filed under Section 13
of the Act by the State of Bihar.
5. Appellant Shiva Shankar Verma was operating a bank locker bearing no.
289 in Allahabad Bank, Sheikhpura, Bailey Road, Patna and on search of the same
it was found storing gold bar weighing 1 K.G., 800 guineas and gold ornaments,
total value of which, as per the recognized Valuer, came to Rs. 80,78,596/-. In
addition to the above quantity of gold and other gold articles, Rs. 2,58,000/- in cash
was also recovered from the said locker.
6. The State of Bihar stated that appellant Shiva Shankar Verma, residing in
House no. 406, Saubhagya Sharma Path, Rukanpura, Bailey Road, Patna-1, was the
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permanent resident of Village Garha, P.S. Nagram, Tehsil Mohanlal Ganj, District
Lucknow (U.P.). His father appellant Ram Pal Verma @ Ram Pal was a farmer
holding 5.5.hectares of land, the total income from which, as per the report of
Tehsildar, Mohanlalganj was Rs. 50,000/- per annum and on computing the annual
income from 1986 to 2007 the total income of appellant Ram Pal Verma came to
Rs. 10,55,000/- from his agricultural operations over his agricultural land. It is not
denied that appellant Ram Pal Verma alias Ram Pal was earlier married to Tulsa
Devi who gave birth to appellant Shiva Shankar Verma and his sister Lajjawati
Devi whereafter she demised. Appellant Ram Pal Verma, thereafter, married
Tarabati Devi, the step mother of appellant Shiva Shankar Verma from whom
appellant Ram Pal Verma begot three sons, namely, Narendra Kumar, Satyendra
Kumar and Jitendra Kumar. Thus, appellant Shiva Shankar Verma had three
brothers and one sister. Except appellant Shiva Shanakar Verma, who was in
service, his remaining three brothers were unemployed and were dependent on the
agricultural income of their family. In addition to 5.5. hectares land, appellant Ram
Pal Verma had also in his possession 0.537 hectares of land at Village Garha and
annual income, as reported by the Tehsildar, from that land was Rs. 16,000/- and
on calculation of the above income from 1986 to 2007, he could also have an
additional annual income of Rs. 3,45,000/-.
7. The State of Bihar stated, which does not appear denied, that appellant
Ram Pal Verma was originally resident of Village Sehajadpur and he was the son
of late Ram Sevak Verma who had three other sons also. Ram Sevak Verma, the
father of appellant Ram Pal Verma, had got property from his maternal side at
Garha and that property was given to appellant Ram Pal Verma while the property
which was located at Village Sehjadpur was shared by other three brothers of
appellant Ram Pal Verma.
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8. It was stated further that appellant Shyam Lal Singh who happens to be the
father-in-law of appellant Shiva Shankar Verma, was a Gram Sevak in Rai Bareli
( U.P) and he retired from service on 31.3.1998 and his pension was Rs. 2,612/-
only in the year 2001. It has further been mentioned that Smt. Usha Verma, who is
the wife of appellant Shiva Shankar Verma and daughter of appellant Shyam Lal
Singh showed her income from shares of different companies and she had her
holdings in different companies in her name which was still being investigated into.
There was no dispute about the fact that appellant Smt. Usha Verma was the house
wife and she did not have any independent personal income and was not in a
position to invest or to purchase some shares or holdings in companies. It was
found during the investigation that during the check period starting from 1.1.1986
to 31.5.2007, as per Annexure-2 to the petition under Section 13 of the Act,
appellant Shiva Shankar Verma had spent Rs. 48,50,025.64 P. against his total
income of Rs. 50,95,056.72P. After deducting from his total income, the amount
spent by appellant Shiva Shankar Verma, his savings came to Rs. 2,45,031.08
Paise. Appellant Shiva Shankar Verma was found in possession of assets worth Rs.
2,17,02765.73P. as per Annexure 3 to the petition in his name or in the names of
his family members and others and after deducting the above said amount of Rs.
2,45,031.08 Paise. the assets which were found disproportionate to his known
sources of income which was possessed by appellant Shiva Shankar Verma was to
the tune of Rs. 2,14,57,734.65Paise. The description of properties, both movable
and immovable, found possessed disproportionately by appellant Shiva Shankar
Verma to his known source of income was detailed in paragraph 24 of the petition
filed under Section13 of the Act and it was valued at Rs. 1,43,96 265/- which was
prayed to be confiscated during the pendency of the trial of the Special Vigilance
Unit Case No.2 of 2007.
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9. As required by Section14 of the Act, on receipt of the application made
under Section 13 thereof, the Authorised Officer appointed under the Act issued
notices to the appellants calling upon them to indicate the sources of their
respective income, earnings or assets out of which or by means of which he or she
had acquired such money or properties along with the evidence on which the
appellants relied upon and to show cause as to why the properties which were
alleged to be the properties acquired by appellant Shiva Shankar Verma by means
of committing the offence under the Prevention of Corruption Act be not
confiscated to the State Government. The appellants appeared before the
Authorised Officer and filed their individual written statement of defence by way of
show cause before Special Court No.2, Vigilance, Patna who was the Authorized
Officer in the present case.
10. As regards appellants Shiva Shankar Verma and his wife Smt. Usha
Verma, they filed two applications showing their causes in response to the notices
issued to them. It was stated by appellant Shiva Shnkar Verma that before joining
the Indian Administrative Service in 1981 and being allotted Bihar Cadre, he had
joined the Sales Tax Department in the Govt. of Uttar Pradesh in the year, 1976 and
had worked in that department till 1979 whereafter he joined Indian Forest Service
under the Govt. of India and worked in Himachal Cadre of that service till 1981
prior to joining the Indian Administrative Service. Appellant Shiva Shankar Verma
based his defence on the income tax returns and other documents by which he had
disclosed to the proper authorities his income and according to that his total income
came to Rs. 88,39,217.65P. He stated that he had entered into an agreement to sell
his land for Rs. 8,10,000/- with appellant Dr. Upendra Prasad Singh and had
received the above amount after having executed an agreement to sell prior to the
search of his house. He had income from his Hindu- undivided- family- properties
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and he had filed return of that income also. Besides, he received gifts in the
marriage of his elder daughter from his family members and relatives amounting to
Rs. 3,15,000/- and also Rs. 2,20,684/- from the guests. In support of his defence of
receiving Rs. 3,354,684/- as gifts on the occasion of his daughter‟s marriage,
appellant Shiva Shankar Verma had annexed certain documents. Appellant Shiva
Shankar Verma stated that his wife appellant Smt. Usha Verma had also filed
income tax return which had been accepted by that particular department and
according to those documents, her total income during the period was Rs.
20,00,00/- approximately. In addition to the above, appellant Shiva Shankar Verma
had also earned scholarship from the Govt. of U.P. from the period August 1976 to
March 1979 and from March 1979 to August, 1981. When he was in the Indian
Forest Service, he received salary, etc., and thus his total savings came to Rs.
1,50,000/- during the check period. He submitted that Dollars which were found in
the locker of the appellant of the value of Rs. 24,854/- were his savings when he
had visited Fizi, Geneva, and Chaina officially and had saved that money out of his
official tour.
11. It appears from the first show cause filed by appellant Shiva Shankar
Verma that he has made some anomalous statement in paragraph 20 by stating that
his total income included that of his wife which came to Rs. 1,08,392.17 including
8 lacs which was kept by appellant Krishnapal Singh which had been deposited
with him for purchasing a flat in Patna and, as such, the State of Bihar had illegally
concealed about rupees 57 lacs so as to making out an offence for prosecuting him
as also to confiscate his properties.
12. As regards the expenditure which was incurred by appellant Shiva
Shankar Verma and his wife, it was stated by him that the expenditure which was
made by him on air travel was not his own expenditure, but the same had been
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incurred by the Govt. of Bihar. Similarly, there was duplication in other costs said
to be incurred by the appellant on the purchase of computer which was already
included in the inventory. In that view of the matter, it was stated by appellant
Shiva Shankar Verma that his household expenses which were valued to be 1/3 rd of
his total income was much less than he actually had incurred, as his daughters and
son were residing out side in hostels and colleges in connection with their studies.
Besides, the inventory valuation of cars and household articles had been included
on a higher side and by duplicating them. The property measuring 13.5 decimals of
land situated at Alipur had been sold and that property should not have been
included.
13. As regards the recovery of gold bars, guineas and jewelleries from his
Bank locker,, it was stated by appellant Shiva Shankar Verma and his wife that
those belonged to his father appellant Ram Pal Verma alias Ram Pal which had
been given by him to appellant Shiva Shankar Verma for keeping in safe custody
for which a registered will was also executed much prior to the search of the
locker. Some of the parts of the jewelleries belonged to appellant Smt. Ushal
Verma wife of appellant Shiva Shankar Verma which had been received by her as
stridharn property and some part of it belonged to his daughter opposite parties 1
and 2 in the court below. It was mentioned that his total ancestral land holding was
measuring 13 bighas out of which, on ten bighas pepermint, which was used in
manufacture of mentha oil was cultivated whereas on the rest of the land wheat and
other agricultural produces were also cultivated from which the average income of
his Hindu undivided family was to the tune of Rs. 4.5 lacs per annum.
14. The appellant Shiva Shankar Verma and his wife filed a supplementary
show cause and it was stated that the expenditure which had been shown incurred
by the appellants was not correct and the same was exaggerated and it was further
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mentioned that so far as the allegation of different expenses in the notice was
concerned, those were also illegal and not exact. In fact, most of the statements by
appellant Shiva Shankar Verma and his wife appellant Smt. Usha Verma were by
way of explaining the earlier statements and challenging the valuation of different
properties in the light of the value which was accepted by the Income Tax
Department which was shown by appellant Shiva Shankar Verma in his returns
filed before that department. It was stated that the valuation of the house of the
appellant had been enhanced by Rs. 1,30,000/- and further that a particular amount
of Rs. 4,67,121/- which was the balance in a particular account held by appellant
Shiva Shankar Verma in a bank, had been deliberately added to enhance his assets.
15. On the above statements, the appellant Shiva Shanker Verma and his
wife appellant Smt. Usha Verma prayed to the learned Authorised Officer to drop
the proceedings regarding confiscation of their properties.
16. Appellant Dr. Upendra Prasad Singh,, who was opposite party no. 9 in
the court below, also filed his statement of defence. He stated that he was a
qualified Medical Practitioner and was also a Professor in Patna Medical College
having retired as the Professor and Head of the Department of Pediatric Surgery in
the year 2006. He stated that besides his salary, he also ran a clinic as S.U. Nursing
Home and Infertility Research Institute, Kankarbagh, Patna and practiced till 2008
and was continuing it till date he filed his written statement of defence. His private
clinic where he practiced medicine was situated at Yogipur Chowk, Kankarbagh,
Patna. He accounted for his income by filing return and paying income tax to the
Income Tax Department and was also allotted Permanent Account Number by that
department. Appellant Dr. Upendra Prasad Singh stated that he had purchased the
land appertaining to khata no.2,Survey plot No. 96 measuring 13.5 decimals
situated at Alipore Phulwari after having paid full consideration amount to
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appellant Shiva Shankar Verma through a registered deed of sale dated 22.8.2007.
It was stated that before registering the deed of sale, the agreement to sale was
registered which was a valid and legal instrument and further that appellant Dr.
Upendra Prasad Singh was entitled as by virtue of his statutory right to purchase
the property as a citizen of India. He stated that he had paid Rs. 5,52,000/- and Rs.
2,58,000/- as payment of consideration to appellant Shivashanker Verma and, as
such, it could not be said that the documents were prepared so as to justifying an
illegal and sham transaction. It was further stated by appellant Dr. Upendra Prasad
Singh that the mutation in respect of the above noted land after its purchase by the
appellant was also ordered on 3.3.2008 in his favour and he had paid the rent and
obtained the rent receipts. On these statements of defence, appellant Dr. Upendra
Prasad Singh prayed for dropping the rule issued against him.
17. In reply to the contention of appellant Dr. Upendra Prasad Singh the State
of Bihar filed a reply controverting his claim that the agreement dated 7.3. 2007 in
respect of the sale of the above noted land in between appellant Shiva Shankar
Verma and Dr. Upendra Prasad Singh had been seized either from the house of
appellant Shiva Shankar Verma or from his locker, rather it was stated that the
same was produced in original by appellant Shiva Shankar Verma in the office of
the Special Vigilance Unit on 24.2.2010 after a lapse of about 2 ½ months of the
institution of the case. The seizure list itself shows that it was produced and then
seized. The document itself showed the involvement of appellant Dr. Upendra
Prasad Singh and, as such, he was made an accused as Dr. Upendra Prasad Singh,
who was original opposite party no. 9, in collusion with appellant Shiva Shankar
Verma had forged and fabricated the record creating false document regarding
payment of consideration amount to stave off the criminal liability of appellant
Shiva Shankar Verma. Besides, the transaction of appellants Shiva Shankar Verma
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and Dr. Upendra Prasad Singh was violative of Section 269 SS of the Income Tax
Act and, as such, the entries in the income tax return were false and that raised
sufficient reason of initiating the criminal proceedings. Besides, the agreement to
sell was prepared on a non-judicial stamp which was obtained from one Dinesh
Kumar Gupta, the Stamp Vendor and the register was not produced before the
Vigilance Department in respect of the purchase of the paper for executing an
agreement to sale which also showed that the document was illegally manufactured
to escape the criminal liability. It was contended that the statement of appellant
Shiva Shanker Verma regarding unsecured loan from someone to the tune of Rs.
4,45,000/- on 31.3.2007 and Rs. 17,47,000/- on 31.3.2008 were all concocted and
manufactured story to save himself from criminal liability.
18. Appellant Krishna Pal Singh, who is the brother-in-law( Sala) of appellant
Shiva Shankar Verma, also filed his written statement of defence as he had been
impleaded as opposite party no. 6 in the petition filed under Section13 of the Act.
He stated that he had come from his native village in Uttar Prasad to Patna for
prosecuting his studies under the guardianship of his brother-in-law and sister,
namely, Shiva Shanakar Verma and Smt. Usha Verma and he resided with them
and studied in Patna. He stated that he intended to purchase a flat in Aradhana
Enclave near Jagdeo Path, Patna and had paid Rs. 70,000/- through cheque dated
22.3.2007 and entered into an agreement with the developer in that behalf. He
received a letter dated 22.6.2007 from the developer and, accordingly, he had
arranged rupees 8 lacs from his distant uncle, named, Suryabali Singh, resident of
village Sarwan in the District of Rai Bareily and kept the same in the house of
appellant Shiva Shankar Verma so that he could make the payment to the
developer of Aradhana Enclave. The above noted amount was seized by the
Special Vigilance Unit during the raid of the house of appellant Shiva Shankar
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Verma. It was further mentioned that during the period he stayed in the house of
appellant Shiva Shankar Verma and Smt. Usha Verma in connection with his
studies, he had kept certain books and articles which had been shown seized in
paragraph 13 at Serial Nos. 1 to 29 of the seizure memo which belonged to him but
they had been shown as the properties of appellant Shiva Shankar Verma. On the
above grounds, appellant Krishna Pal Singh prayed the rule being dropped against
him.
19. Appellant Ram Pal Verma, appellant in Cr. Appeal No. 550 of 2011, also
filed his separate show cause in which he stated that he had 9 bigha,16 viswa and 1
viswansi irrigated agricultural land located at village Garha and his wife had 2
bigha, 2 viswa and 10 viswansi land at the same village which had been admitted
by the Special Vigilance Unit. It was stated that they used to grow paddy crops,
wheat, pepermint, pulses, oil seeds and other valuable crops. He had a net income
from paddy crop alone of Rs. 1,17,500. He used to get an income of Rs. 1,18,000/-
from wheat and its straw while from the production of pepermimt used in
preparing mentha oil, he used to get Rs. 2,40,000/-. Appellant Ram Pal Verma
stated that after deducting the costs which was incurred by him, he earned total
income of Rs. 4,45,000/- per annum which was never considered by the Special
Vigilance Unit which had only acted upon the report of Tehsildar which was
incorrect. It was mentioned that he had inherited movable and immovable assets
from his own Mausa, Nanad of Mausi and Mausi-in-law including their jewelleries.
Appellant Ram Pal Verma had no faith in the banking system and, as such, he used
to purchase gold since long and this fact was disclosed by him to the Investigating
Officer of the case that he had given 1 K.G. of gold bars and 800 guineas to his son
appellant Shiva Shankar Verma for keeping the same in safe custody. He
sometimes after, executed a will dated 10.1.2007 in respect of the gold bars, but
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the prosecution deliberately concealed those facts and included the above properties
in the confiscation proceedings as properties amassed from unknown sources by
appellant Shiva Shankar Verma. Appellant Ram Pal Verma stated that he used to
purchase gold at the rate of Rs. 20/- per tola and all the gold ornaments which have
been received from his Nani, Mausi and others have been converted into gold bars
and guineas and valuation of those items was highly exaggerated by the Special
Vigilance Unit. In the light of the above statements, appellant Ram Pal Verma alias
Ram Pal also sought indulgence of the learned Authorised Officer to drop the rule
issued against him and, as such, decline to confiscate the property.
20. Appellant Shyam Lal Singh is the father father-in-law and father
respectively of appellants Shiva Shankar Verma and appellant Smt. Usha Verma.
He had also been issued a notice on confiscation of a particular property. He
appeared and filed his written statement of defence by stating that he has falsely
been implicated and there being no specific allegation against him he was not
obliged to reply to it.
21. Opposite party no. 8 before the court below, appellant Suman Lata Verma
alias Suman Verma is the sister-in-law ( Sali) of appellant Shiva Shankar Verma. In
her written statement of defence in pursuance to the show cause notice issued to her
calling upon her to show cause as to why the land situated at Ramner Moiuddinpur
measuring 1 biswa 10 dhoors i.e., 190 sq. meters which was in her possession
should not be confiscated. The above land was purchased by appellant Smt. Usha
Verma in the year 1992 after paying consideration amount of Rs. 37,247/-.
Subsequently, appellant Smt. Usha Verma gifted the property to her by a gift dated
5.4.2005 which was notarized on 20.3.2006 upon which a residential house was
also constructed but these facts were concealed by the Special Vigilance Unit.
Appellant Sumana Lata Verma alias Suman Verma, opposite party no. 8 before the
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court below, not only claimed the property but also prayed to the learned
Authorised Officer to drop the rule issued against her.
22. Appellant Chandra Pal Singh who is one of the appellants with appellant
Shyam lal Singh in Cr. Appeal No. 551 of 2001 is the brother-in-law of appellant
Shiva Shankar Verma. A notice also appears issued against him calling upon him
to show cause under Section14 of the Act and he also responded to it by stating that
he had falsely been implicated and he had no concern with any property seized by
the Special Vigilance Unit. It was stated by him that in fact, there was no specific
charge or allegation brought forward by the Special Vigilance Unit against him
and, as such, he has maliciously been implicated which requires rule issued against
him to be dropped and appellant Chandra Pal Singh be exonerated.
23. The learned court below thereafter proceeded to consider the individual
written statements of defence and considering them in the light of the rival
contentions of the parties went on to confiscate the properties which were sought to
be confiscated to the State of Bihar.
24. Shri Rana Pratap Singh and Shri Chittaranjan Sinha, both Senior counsel
appeared before me in support of the appeals. Shri Rama Kant Sharma, Senior
counsel on behalf of the Vigilance Department, appeared on behalf of the
respondents in all appeals. It was contended by the learned counsel for the
appellants that the State of Bihar had filed a petition under Section 13 of the Act
giving details of the documents maintained by various officials so as to supporting
the case of confiscation as set up by the State of Bihar. However, no witness was
produced in proof of contents of those documents and, as such, the order passed by
the learned authorised Officer was contrary to the principles of justice, specially,
when the order in question could divest someone of his properties. It was
contended that certain documents necessary for framing the defence were also not
16
supplied to the appellants and, thereby, the appellants were deeply prejudiced in
setting up their defence and making statements in that behalf as per law. It was
contended that the will executed by Ram Pal Verma alias Ram Pal, the father of
appellant Shiva Shankar Verma in respect of gold bars, guineas, etc. was not
supplied to appellant Shiva Shankar Verma on unfounded grounds that the same
was produced by him and, as such, a copy thereof could not be supplied to him. It
was contended that in order to assessing the value of the property properly, the
income tax returns were the valid basic papers which were not considered and those
were already containing proper and detailed explanations. It was contended by
reference to Section 13(2) of the Act that the affidavits, necessary to be filed has to
be more than one, because the legislature was attempting to direct all relevant
“evidence” with source and nature thereof to be placed before lthe Authorised
Officer so that even in absence of ” evidence” , as we know the term to mean, the
affidavits containing all relevant informations could be treated as evidence.
Reference was also made by learned counsel to rule 14 of the Bihar Special Courts
Rules, 2010, which requires the application to be filed under Section 13 of the Act
to contain certain particular details and sub-rule(1)(g) of Rule 14 of the Act
specifically requires the name and detailed address of persons whose affidavits
were to be furnished in support of the case. But, only one affidavit, that too very
cryptic, in support of the contents of the application was filed which was a
complete non-compliance with the provision of Sections 13 of the Act and Rule 14
of the relevant Rules. It was, as such, contended that the whole order of
confiscation passed by the court below was in derogation not only of the material
evidence but also of the requirement of the procedure set down by the provision of
the Act including the rules framed thereunder.
25. Learned Special Public Prosecutor appearing for the State and the
17
Vigilance Department was submitting that the appellant Shiva Shankar Verma did
not disclose his assets of possessing gold bars, guineas, etc., which now he states
being entrusted to him, ever in any return filed by him before the income tax
authorities and now so as to covering up his misdeeds he was making statement in
his show cause that the disclosures were made before the Income Tax Officer.
Appellant Shyam Lal Singh was averring in his written statement that he had gifted
cash to appellant Smt. Usha Verma which gift deed was forged, fabricated and
ante-dated. Opposite Paryt No. 8 Krishna Pal Singh has also attempted to explain
the same, but the same is contrary to the relevant provision of the Income Tax Act
as was held to be so by the Supreme Court in (2002) 6 S.C.C. 259 Asstt.
Director of Inspection Investigation Vs. A.B. Shanthi. It was contended that it is
clear that appellant Shiva Shnakar Verma and his wife Smt. Usha Verma had
earned properties disproportionate to their „known sources of income‟ which term
has been defined as a „source of prudence‟ as may be found from some decision of
the Supreme Curt. It was contended that any irregularity not going to the root of
the matter and not causing any prejudice to the appellants, has to be over looked.
Contention also was that special Rules have been set down by the provision of the
Act and the Rules framed thereunder and the proceedings under the Act have to be
carried out as per those procedures. The general rules of evidence or general
principles of criminal jurisprudence have no application to the special nature of the
proceedings and the order which was passed by the learned Authorised Officer.
As such, the contentions on non-application of the rules of evidence or principles of
Criminal Jurisprudence are not tenable.
26. Corruption is a phenomenon which could not be confined to any particular
period of time; it is known to exist from time immemorial, maybe that it had
existed in different forms due to the mode of indulgence into it by persons being
18
various. So far as the recent history of origin of corruption and attempt of tackling
it is concerned, it was not as enormous as we find today prior to the Second World
War. In fact, our attempt through legislation for tackling the menace existing at
different places took the legislative shape during the Second World War. It was
detected that there was corruption in ferrying the war supplies during World War II
by the railways and, as such, an executive order was promulgated sometimes in
1941 establishing Special Police Establishment with a Deputy Inspector General-
rank- Police Officer as its head to investigate instances of corruption in war and
supply departments. The activities of the Special Police Establishment were
extended to corruption in railways as they were deeply found in corruption as
regards the war supplies. The Govt. of India promulgated an Ordinance in 1942
creating Special Police Force vesting in it the powers to investigate the instances of
corruption in Govt. departments throughout India. Another Ordinance was
promulgated in 1943, which was to expire on 30th September, 1946. Therefore, in
the same year a full-fledged Act known as Delhi Special Police Establishment Act
was enacted. Corruption at its initial stage was confined mainly to the bureaucracy
which had the opportunity of dealing with a variety of such largesse in the form of
contracts, licenses and grants. Even after the War and efforts as above, corruption
continued amongst the Govt. servants. War-supply-surpluses were required to be
disposed of by them. A shortage of goods during the war necessitated imposition of
control. Some schemes were formulated which involved the disbursement of huge
sums of money which lay in the control of the public servants giving them a wide
discretion in spending those grants meant to carry out reconstruction works after
the War. These aspects of public functions lured them to glitter of wealth. These
were the reasons that Prevention of Corruption Act, 1947 was enacted by which the
provisions of Sections 161 to 165A of the Indian Penal Code were deleted. Higher
19
sentences were prescribed and special forum both of trial and investigation was
prescribed.
27. If we could go back further into the history, we could find that the Central
Bureau of Investigation was created to investigate corruption cases by virtue of
being vested with the powers to investigate the cases as per Sections 5 and 6 of the
Delhi Special Police Establishment Act. With democracy being established and
political ambitions and conflicting political or other interests getting a rise,
instances of commission of serious offences, like murder or even kidnapping, etc.,
surfaced, which had some political overtures. Some of the offences were found
committed by professional gang of criminals making it extremely difficult for the
general police force of a State to investigate such complex offences. In the above
background, the provision was made that on proposals being submitted by any
State Government and Central government having accepted such proposals,
investigation of such complex cases might be made by the Central Bureau of
Investigation. This is how the offences other than of corruption were also added up
into the kitty of the Central Bureau of Investigation for its investigation ( Please
see Lalan Prasad Singh Vs. Union of India reported in 2011(1) B.B.C.J. 41).
28. Establishment of democracy and its constitutional obligations of fulfilling
the aspirations of the people which are listed in the Constitution of India as per
Chapter on the Directive Principles of the State Policy, developmental activities
and other socially beneficial activities were undertaken in a massive way both by
the Union Government as also by different State Governments. All powers for
charting out ways and means of planning such socially beneficial schemes and to
execute them usually lied and still continue to lie in the hands of bureaucracy. Huge
public money was pumped into the implementation of such socially beneficial
schemes, as just noted above. The lust both for glittering gold and securing
20
luxurious life allured the public servants, who were mainly bureaucrats and
politicians, either to ignore or to breach rules of conduct of official business as also
the norms of their own conduct as public servants so as to indulging into
misappropriation of public fund and corruption in grant of contracts or in execution
of the schemes. One need not site examples. One could find such involvements,
both in past as also in the present day.
29. The Parliament, as such, amended Prevention of Corruption Act, 1947
by incorporating some necessary amendments in the above noted Act by Act No.
49 of 1988. The definition of „Public Servant‟ which was earlier contained in the
relevant provision of the Prevention of Corruption Act, 1947, was redrafted so as to
widening the scope and ambit of its meaning and it was ensured that even those
who could not be holding any public office but were getting any public assistance
either from the Central Government or the State Government could be deemed to
be a public servant. A very simple glance of the definition of the term „Public
servant‟ contained in Section 2 (c ) of the Prevention of Corruption Act, 1988 may
testify as to how the definition was broadened to identify the public servant not
only by the post one holds, but also by the duties to be discharged. The procedure
for trial of cases by applying the Code of Criminal Procedure, 1973 was also varied
as may appear from Section 22 of the At of 1988. The Criminal Law (Amendment)
Ordinance, 1944 was also amended by Section 29 of the Prevention of Corruption
Act, 1988. The Criminal Law (Amendment) Ordinance, 1944 is the result of the
legislative attempts on forfeiture and confiscation of any property amassed by a
public servant either in his name or in anybody‟s name by committing the offence
under the Prevention of Corruption Act. The provisions are wide and effective so
much so as may appear from Sections 10,11,12 and 13of the Ordinance that the
confiscated property may not revert back to such a public servant under some
21
eventuality. The above noted Ordinance was applicable only to a few offences
which were added into the Schedule of the Ordinance and that was not fully
applicable to any person who was being prosecuted for committing an offence
under the Prevention of Corruption Act, 1988. As such, by amending the Schedule
noted above, offences under Prevention of Corruption Act, 1988 were also added
up to it.
30. However, the amendments incorporated in 1988 into the Prevention of
Corruption Act did not altogether change the trial procedure which was almost the
same as could be applicable to trial of a warrant case and that could be one of the
reasons that the pendency of corruption cases remained a bit on the higher side. It
could be appreciated if the following table is considered:
Name of Total pending Year wise particulars of pending cases under Prevention of Corruption Act, 1988.
Judgeship cases in respect
of offences
under
Prevention of
Corruption
Act, 1988
2010 2009 2008 2007 2006 2005 2004 2003 2002 2001
Before200 2 000
Muzaffarpur 1352 92 102 231 102 48 54 26 18 17 7 9 646
Patna 1570 109 145 128 164 139 59 52 44 41 26 38 625
31. It may be found from the above table that Special Courts for trial of
corruption cases have been established only in two Judgeships out of a total number
of thirty Judgeships and those are, Patna and Muzaffarpur and the total number of
2922 cases were pending up to December, 2010, which are to be tried by the
Special Courts created for trying the offences under the Prevention of Corruption
Act, 1988, ranging from 2000 to 2010 which figure included 646 and 625 such
cases of years prior to 2000 which were pending in different courts of Bihar. There
are several instances which could be had from the Registry of this Court, indicating
that the witnesses in spite of appearing before the Special Courts were not
examined and they had to go back to their respective places of posting. One hardly
22
requires to point out that the witnesses cited in the charge sheet by the
investigating agency in such cases are all public servants who are posted in
different corners of the State and they go back without deposing in courts.. There
was no timeframe anywhere in the above Act for trial of the cases. Corruption is a
prime problem of our democracy which is eating up its fabric and it is destroying
the foundation upon which the edifice of our democracy was fabricated. A handful
of persons, who may be politicians or bureaucrats, are eating up the plan money
which are to be invested in execution of any developmental or socially beneficial
schemes. As such, even the serious attempts on tackling the problem by framing
drastic legislation could not be effective. Even the provision of forfeiture of the
property by attaching it under the Ordinance of 1944 was tardy as the petition
which was to be filed either by the Central Government or by the State Government
under the Ordinance was to be tried by an Officer of the rank of District Judge as a
suit and he was required to take evidence both in support as also in the rebuttal of
the contents of the petition.
32. The above are the reasons which appear prompting the Bihar Legislature to
frame the Bihar Special Courts Act, 2009. While enacting the above legislation,
the Legislature perceived that „corruption was prevailing amongst persons holding
public office who were the public servants within the meaning of Section 2(c ) of
the Prevention of Corruption Act‟. It was also perceived that such public servants
had „accumulated vast property, disproportionate to their known sources of income
by resorting to corrupt means‟ and as such „it was obligatory for the State to
prosecute such persons involved in such corrupt practices and to confiscate their
ill-gotten assets‟. As I have just pointed out, the Legislature also felt that existing
courts of Special Judges may not be reasonably expected to bring the trials of such
cases to speedy termination and further, it was imperative for the efficient
23
functioning of the parliamentary democracy and the institutions created by or under
the Constitution of India that the aforesaid cases be tried with utmost expedition.
With the above motto, the legislature established Special Courts by enacting the
Bihar Special Courts Act, 2009 which was to be presided over by persons who
were or had been Sessions Judges or Additional Sessions Judges. Attempt was
clearly made to avoid delay in final determination of the charges brought against
persons who were to be tried for committing the offence under the Prevention of
Corruption Act, 1988. But care was also taken to eliminate any possibility of
interference with the right to fair trial of such an accused. Not only that, provisions
were also framed to confiscate the properties of such public servants if they had
been found to have amassed properties either in his name or in others name by
committing the offence under the Prevention of Corruption Act.
33. On perusal of the Act one could find that the Act is spread over IV
Chapters. Chapter I relates to definition of different terms; whereas Chapter II
relates to establishment of Special Courts and other matters relating to
cognizance of cases by the Special Courts, declaration of cases to be dealt with
under this Act with the effect of such declaration besides the jurisdiction of the
Special Courts to try cases under the Prevention of Corruption Act. Section 8 of the
Act relates to procedure and powers of Special Courts and it has provided that the
procedure of trial shall be that of a case which is known as warrant case and which
is tried by a Magistrate. But, the application of Code of Criminal Procedure and
those of the Prevention of Corruption Act, 1988 were restricted only when there
was no provision in the Act in any particular behalf. Rule making power has been
vested into the State Government by Section 24 of the Act and in exercise of that
power, the Bihar Special Court Rules, 2010( „Rules‟ in short) has been framed and
on perusal of Rule 12 of the Rules it is indicated that the trial has to be in summary
24
manner and it is further indicated by the above said Section as to how the
proceeding which is pending should be carried out by the Special Courts. Rule 15
of the Rules makes the Indian Evidence Act applicable mutatis mutandis to the trial
conducted by the Special Courts and as may appear from Section 11 of the Act, the
Special Court is completely precluded from adjourning any trial for any purpose
unless such adjournment, in the opinion of that court, is necessary in the interest of
justice and for reasons to be recorded in writing. Every Special Court has, thus not
only to assign reasons for adjourning the hearing of a case, but it has also to ensure
that the adjournment granted has to be in the interest of justice.
34. How could a reason exist to justify the adjournment of the hearing in the
interest of justice? It could be very difficult to catalogue such reasons for
adjournments justifying it in the interest of justice. But, broadly speaking, if the
non-adjournment is likely to prejudicially affect the trial or the interest of the
parties or a particular party or it was likely to hamper the right of the accused to
fair trial or if the prosecution or defence appears suffering from any handicap
beyond its control, in spite of all efforts made by it on production of evidence that
it could not produce the same due to any incident or happening again beyond the
control of the parties making it imperative to adjourn the hearing of the case then,
these or any of them could be some of the reasons in the interest of justice. Any
willful act or any designed move to stall the trial or to delay it by a party has to be
frowned at by the Court. It has always to look to the statutory time frame for
concluding the trial and must consider every attempt on seeking adjournment with
lawful disdain and in appropriate cases with heavy hand.
35. It is further indicted by Sub-section(2) to Section 11 of the Act that
Special Court has to make all endeavours to dispose of the trial of the case within a
period of one year from the date of its institution or transfer, as the case may be.
25
Thus, there is clear departure from the general procedures regarding the trial of a
warrant case as contained in the Code of Criminal Procedure as the same does not
bind any court with any particular time frame in trying warrant cases. At the same
time the procedure for trial of warrant case could not be that of a summary trial. In
my considered view, the summary procedure of trial as is envisaged by Rule 12
could not be for a period longer than one year as indicated by Section -11(2 )of the
Act, else, the provisions of Section 11 and Rule 12 may run counter to each other
and make the time frame impracticable. Further, the conflict which appears in
between Section 11 of the Act and rule-12 of the Rules may be reconciled by
pointing out that the legislature had recognized the delay which has beset the trials
of corruption cases, as may appear from the Preamble to the Act and while
adopting the procedure of Chapter XIX of the Cr. P.C. for trial of such cases, the
legislature was indeed stipulating the summary procedure by confining the trial of
such cases within the time frame of one year as per Section 11(2) of the Act. In
fact, the conflicting situation created by Section 11(2) and Rule 12 could best be
resolved by pointing out that while the procedure has always to be that for a
warrant trial, it has to be summary or abridged in point of time by being attempted
to be concluded in a year as per Section 11(2) of the Act. In case the trial spills
over a period exceeding one year, it could not have any adverse impact on it, nor it
could create a right in any party to escape the trial. But, in such an eventuality
sturdy reasons have to be assigned by the trial Judge. Similarly, de novo trial has
been done away with by Section 12 of the Act and the appellate forum has been
prescribed by Section 9 of the said Act. These are the provisions in respect of the
trial of cases which, as I have just pointed out, appear in Chapter II.
36. Chapter III of the Act is headed “Confiscation of Property.” The Chapter
contains the procedures for adjudicating the confiscation proceedings in respect of
26
properties amassed by the commission of the offence as per definition of the term
in Section 2(e) of the Act. Rules 11,12 and 14 are the relevant rules in the above
behalf. It may appear from perusal of Section 13 of the Act that the State
Government may authorise the Public Prosecutor for making an application before
the Authorised Officer for confiscation of money and other property of any person
who had held or is holding public office and is or has been a public servant, if
there was „prima facie evidence‟ giving rise to „reasons to believe‟ to the State
Government that such a public servant has committed the offence. Sub-section(2)
to Section 13 directs that an application under Section((1) has to be accompanied
by one or more affidavits stating the ground on which the belief that such person
has committed the offence is founded, the amount of money and estimated value
of other property believed to have been procured by means of commission of the
offence. The application shall also contain any other information available as to the
location for the time being of any such money and other property and shall
necessarily give other informations relevant to the context. On receipt of the
application under Section 13, which has to be as per Rule 14 and Form No. III
appended at the foot of the Rules, the Authorised Officer has to issue a notice to the
person in respect of whom the application has been made calling upon him to
indicate, within a maximum period of thirty days, the source of his income,
earnings or assets, out of which or by means of which he had acquired such money
or property, the evidence on which he relies and other relevant information and
particulars and to show cause as to why all or any of such money or property or
both, be not declared to have been acquired by means of commission of the
offence and be confiscated to the State Government. If the property is found to be
held by a person on behalf of a public servant in his name, then a notice has also to
be issued against such other person not being the public servant, as may appear
27
from Section14(2) of the Act.
37. Sub-section(3) to Section 14 of the Act reads as under:
” 14(3) Notwithstanding anything contained in sub-section(1) , the
evidence, information and particulars brought on record before the
authorized officer, by the person affected or the State Government shall be
open to be rebutted in the trial before the Special Court provided that such
rebuttal shall be confined to the trial for determination and adjudication of
guilt of the offender by the Special Court under this Act.”
On perusal of the above section what may appear is that the evidence or
information or particulars in respect of the properties sought to be confiscated
produced either by the State Government or by the person who has been served
with a notice under Sections 14(1) and (2) are the only materials to be considered
and no further evidence in rebuttal of any of the evidence, information or
particulars is to be allowed for considering the merits of the application filed under
Section 13 of the Act. Whatever rebuttal could be given, could be allowed only at
the stage of trial and that too has to be confined only to the determination and
adjudication of the guilt of the offender by the Special Court.
38. This prohibition appears applicable not only to the evidence or material
on which the application has been filed, but also to the reply and the connected
evidence produced in support thereof by the public servant. The prohibition as
noted is confined to the proceedings arising out of the filing of an application under
Section 13 of the Act and that too only before the Authorized Officer. It is never
applicable to a trial to be conducted or being conducted before the Special Court.
One has always to remember that trial has to be before the Special Court as per
provisions of Chapter-II of the Act, and the proceedings under Chapter-III has to be
before the Authorized Officers and the two jurisdictions and their nature are quite
different from each other. The two fora have distinct and separate judicial identity
with varied functions guided by different procedures; one has to try the accusation
28
of commission of the „offence‟ as defined by Section 2(e) of the Act, while the
other, that‟s the Authorised Offier, has to adjudicate the proceeding arising out of
the application under Section13 under the special procedures of Chapter-III of the
Act.
39. Thus, the consideration of evidence/materials relevant for the adjudication of
the proceedings of confiscation in respect of the properties gets confined to the
evidence and materials placed through the application and those to be placed or
already placed through the reply to the notice to show cause by a public servant or
any other person who has been called upon in that behalf. No evidence in rebuttal
of the statements and supporting evidence or materials is permitted by Section
14(3) of the Act and, as may appear, the adjudication of the application under
Section 13 has to be made on materials/evidence, etc. as indicated by Section 14(1)
of the Act. There is one exception and that too appears not permitting rebuttal
evidence to be adduced by any party to the proceedings. In case the valuation of
properties as proposed by the State Government is contested by the delinquent
public servant, in that case the Authorised Officer may take assistance of such
State Government agency or Central Government agency or any other Officer or
person technically qualified to give his opinion on such a matter, as he may deem
fit and proper. In such a case, the report or statements of such persons as are
indicated by Rule-11(g) may be considered in the light of the relevant provisions of
the Indian Evidence Act, else, there is no application of the Indian Evidence Act to
confiscation proceedings. The rationale behind the exclusion of rules of evidence in
such proceedings, in my view, is that in cases of the present category, the petition
under Section 13 of the Act has necessarily to be based on facts arising out of the
documents or material evidence which may be had from the possession of the
delinquent public servant on account of the seizure of the same by the investigating
29
agency or due to the production of them by the Officer himself. Moreover, it has to
be merely a “proceedings” under the Act and not a trial. In fact, the Criminal Law(
Amendment) Ordinance, 1944 was also not contemplating it as „ trial‟ of a suit,
rather it was mere „investigation.‟ and in that case the rebuttal evidence to be led
could simply create anomalous and unjust situation.
40. After having considered the contents of the application and those of the
show cause, if any, submitted or filed in response to the notice issued under Section
14 of the Act and considering the material which may be produced before him, the
Authorised Officer has to give a reasonable opportunity of being heard and has
to record the finding whether or not any money or property has been acquired
illegally as appears directed by Section 15 of the Act. In case the Authorised
Officer is satisfied that any part of the money or property or both was acquired by
commission of the offence and the other part of it was not by that manner by the
delinquent public servant, then he has to direct that the money or property or both
so amassed by the public servant shall stand confiscated to the State of Bihar free
from all encumbrances. However, the proviso appended to sub-section(3) of
Section 15 of the Act indicates that if the delinquent public servant deposited the
market price of the property with the Authorised Officer, the property shall not be
confiscated. In case of any Company being confiscated, it may be deemed that the
Company stands transferred to the State Government. As may appear from sub-
section(5) of Section 15 of the Act, the proceeding for confiscation under Chapter
II has to be concluded within a maximum period of six months to be reckoned
from the date of service of notice under Section 14(1) of the Act. Subject to the
order in appeal, any order of confiscation shall be final and shall not be questioned
in any court of law as may appear from the provision of Section 15 of the Act.
41. Section 16 of the Act declares any transfer of money or property after
30
issuance of notice under Section 14 of the Act as null and void and in case of an
order under Section 15 of the Act such property or money shall also stand
confiscated to the State of Bihar. The power to take possession is vested in the
State Government by virtue of Section 18 of the Act and the appellate forum has
been prescribed under Section 17 of the Act. That provision also prescribes the
maximum period of hearing and disposal of the appeal by the High Court within six
months from the date of filing of the appeal as may appear from Section 17(3) of
the Act.
42. Rules framed by the State Government by exercising its power under
Section 24 of the Act are also relevant for the present purpose The Authorised
Officer has to be nominated by the State Government in consultation with the High
Court and he has necessarily to be a member of the . Bihar Superior Judicial
Service( Senior Branch), who is or has been a Sessions Judge or an Additional
Sessions Judge. He has also been declared as a public servant as per Rule 10 of
the Rules and he has, while considering the application under Section 13 of the Act
read with Rule 14 of the Rules, to follow summary procedure. On a glance of
Rule 11 one could find that different timeframes have been set down for conducting
the confiscation proceedings. The delinquent public servant has to appear to file his
statement in defence within thirty days in the first instance, further period of fifteen
days may be given to him in the maximum at the second instance fo presenting his
statement of defence before the Authorised Officer. In case the public servant does
not file his statement of defence within the prescribed period which could be forty
five days in maximum by virtue of Rules 11(b) and (c), the Authorised Officer may
pass an appropriate order and thus, conclude the proceeding. If the public servant
files his statement of defence, the Authorised Officer has to hand over a copy of the
same to the Public Prosecutor and he may also reply to the contents thereof but
31
not beyond the period of thirty days given to him in two installments as may appear
from Rule 11( e) and (f) of the Rules. If the public servant contests the valuation of
the property, in that case, Rule (g) empowers the Authorised Officer to seek
assistance of State Government agency or Central Government agency or any other
Officer or technically qualified person in reconciling the contest and thereafter he
has to consider the statement of defence of the public servant, reply of the Public
Prosecutor and report of the expert, if any, for adjudicating the proceeding of
confiscation. But, at any rate and by all means, the proceeding, has to be concluded
from the date of service of notice within the period of six months. The Authorised
Officer, thereafter, has to proceed to confiscate the property in accordance with
section 15 of the Act.
43. The above are the relevant provisions concerning the adjudication by
the Authorised Officer of an application presented before him by the Public
Prosecutor at the request of the State Government. I did have a proper glance of
them so that some of the issues raised by the learned counsel for the appellants
could properly and adequately be scrutinized and thrashed, specially, in respect of
application of the rules of Evidence Act to such proceedings. At the same time, I
deem it necessary to consider the scope and ambit of the provisions of Sections 13
and 14 of the Act and contextually the relevant Rules, which were the subject
matter of submissions of the learned counsel for the appellants, before I took up the
factual aspects of the appeal for my scrutiny.
44. Section 13 of the Act states that the State Government should have ”
reasons to believe” on the basis of ” prima facie evidence” that any public servant,
present or past, had committed the offence and thereby had amassed money or
property or both either in his name or in any others‟ name. ” Offence” means, as
per Section 2(e) of the Act, an offence of criminal misconduct which attracts
32
application of Section13(1)(e) of the Act( that‟s the Prevention of Corruption Act,
1985), either independently or in combination with any other provision of the Act
or any of the provisions of Indian Penal Code. Thus, the primary question could be
as to what maybe the “prima facie evidence” indicating to the State Government
the existence of „reasons to believe‟ regarding the commission of the „offence‟ by a
public servant, either serving or past, so as to ordering the filing of a proper
application under Section 13 of the Act. Neither the Code of Criminal Procedure
nor the Prevention of Corruption Act and not even the Evidence Act has defined
the term „ prima facie evidence‟. In fact, the judgments of the Supreme Court or of
this Court do also not exactly define ” prima facie evidence”. However, there are a
few decisions of the Supreme Court indicating as to what could be the meaning of ”
prima facie case”. One such decision was rendered by the Supreme Court in the
Case of The Management of the Bangalore Woollen Cotton and Silk Mills, Co.,
Ltd. Vs. B.Dassappa reported in AIR 1960 S C 1352. In that case the scope and
ambit of Section 33 of the Industrial Disputes Act, 1947 was being considered for
finding out the existence of “prima facie case.” After considering the facts of the
case, the Apex Court happened to consider the existence of “prima facie case” so as
to justifying termination of the services of the employee. Their Lordships were
placing reliance upon their earlier decision in Martin Burn Ltd. Vs. R.N.
Banerjee reported in AIR 1958 S.C.79 and was extracting the observation of the
Court appearing at page 85 of the report in Martin Burtn. I am tempted to extract
the relevant part of paragraph 9 of the decision reported in AIR 1960 S.C 1352
which is as under:
” The Labour Appellate Tribunal had to determine on these
materials whether a prima facie case had been made out by the
applicant for the termination of the respondent‟s service. A prima
facie case does not mean a case proved to the hilt, but a case
which can be said to be established if the evidence which is led in
33support of the same were believed. While determining whether a
prima facie case had been made out, the relevant consideration is
whether on the evidence led it was possible to arrive at the
conclusion in question and not whether that was the only
conclusion which could be arrived at on that evidence.”
Thus, what may follow from the above observations of the Apex Court while
propounding the meaning of „prima facie case‟ is that if the evidence which was led
in support of the same was not such as is required for proving a case to the hilt, but
if it could be such as to making the particular proposition also probable, then that
evidence could be said to be prima facie evidence. Prima facie evidence may not be
that evidence, in other words, which establishes a proposition or answers a question
of fact beyond the shadow of all reasonable doubts, rather, simply raises a strong
probability, which may be rebutted in due course, which convinces the mind of a
reasonable person about the probability of existence of a thing or a fact, if no
rebuttal to that proposition of facts is made. It is the evidence different from that
which has to establish a fact or proposition to the hilt or beyond shadow of doubt.
Thus, the “prima facie evidence” which is required for constituting the “reasons to
believe” has never to be such as could require the application of rules of evidence
contained in the Indian Evidence Act for acting upon it, rather could be mere facts
alleged or appearing from the admitted or acceptable documents which could raise
a probability making some one to believe the existence of such facts or proposition
of facts as regards an indictment or accusation of any other sorts.
45. Thus, what I conclude as regards the term „prima facie evidence‟ is that if
the evidence, left un-rebutted, probabilises the indictment or accusation or
proposition made or asserted through a set of facts, then it is prima facie evidence.
This appears more reasonable a view to be taken in the present context as the
„prima facie evidence‟ to generate the „reasons to believe‟ a its appears in the same
section 13, is further qualified by the condition which appears in Section 14(3) of
34
the Act which does not permit receiving or adducing any rebuttal evidence as
regards adjudication of the application to be filed or already filed under Section 13
of the Act. The rebuttal evidence is permissible only on indictment or accusation of
committing the offence under the Prevention of Corruption Act and has to be
tested during the trial by taking evidence as is permitted to be taken by Rule 15 of
the rules framed under the Act. Thus, what appears to me is that the Authorised
Officer cannot go beyond the evidence/materials which could be placed before him
as annexures on affidavit which could be sworn as required under Section 13 of the
Act. The reason which appears to me- and I have pointed it out at some earlier
stage of the present judgment- is that the most of the evidence or materials could be
such which could be coming either from the possession of the delinquent public
servant or to which he could be a party making it unnecessary to seek the
observance of the rules of the Evidence Act on proof of fact pointing to the alleged
amassing of ill-earned assets. Further, which I find about the nature of documents
on acquisition of properties by a delinquent public servant is that most of them or
may be all of them could be admissible itself under any of the provisions of the
Evidence Act.
46. It appears reasonable more so to do inasmuch as the proceedings of
adjudicating the petition under Section 13 of the Act by an the order under Section
15 of the Act, is not a trial as it used to be earlier under the Criminal Law
(Amendment) Ordinance, 1944 and prior to coming into force of the present Act of
2010. It is somewhere around an enquiry for satisfying the judicial conscience so as
to finding out as to what could be the „reasons to believe‟ regarding existence of
circumstances or grounds indicating as if the disproportionate assets amassed by
such a delinquent public servant might have been earned by virtue of commission
of the offence as defined by Section 2(e) of the Act. The term „reasons to believe‟
35
have to be found out from such materials or evidence which could be brought on
record through affidavit which is the most formal procedure of placing evidence to
satisfy the judicial conscience as regards drawing satisfaction relating to
appearance of reasons for believing the above proposition of facts or indictment
against a public servant. I may note that the tendering of „prima facie evidence‟ on
affidavit to establish „reasons to believe‟ as required by Section 13 of the Act may
not be an isolated and solitary legislative provision; one may find other instances
also in other legislations. Section 5 of the Criminal Law( Amendment) Ordinance,
1944 speaks of taking evidence of parties during the investigation held by the
District Judge, on the petition filed under Section 3 of the Ordinance seeking
attachment of the properties similarly amassed by a public servant as is to be dealt
with under Section 13 of the Act. Section 5 of the Ordinance, 1944 directs the
taking of evidence as per mode of receiving evidence in a suit under the C.P.C. It
hardly requires to be noted that Order 18 Rule-4 C.P.C. permits taking evidence on
affidavit. Further, a proceeding under Section 13 of the Act, virtually, is an
indictment on the character of a public servant, present or past, and the enquiry
under the proceeding is in reality to satisfy, prima facie, about the existence of
supporting evidence. As such, the evidence is virtually on the credentials or the
character of a public servant. It is not that the instance of permitting evidence on
affidavit on the character or credentials of a public servant could not be found
anywhere in the annals of Criminal Law. It is contained in the Code of Criminal
Procedure in Section 295, to be exact.
47. The word „believe‟ does indicate towards some certainty and does not
partake of „suspicion‟ or „fanciful belief‟ as regards the existence of a particular
fact or thing. But, in the present or in any other case no reasonable person could
simply believe the existence of the accusation or indictment through proposed facts
36
unless there are supporting reasons which are necessary to come out from the prima
facie evidence. Thus, even if the thing may not be certain as regards proof to the
hilt. But, the evidence or material brought on record by the State Government
through affidavits should satisfactorily raise a probability of the accusation or
indictment being sustained in case the evidence is not rebutted. It is then only that
case a complete case of „reasons to believe‟ could be made out. This is how I have
perceived the two terms, I have discussed herein and this is how, I think, the
Authorised Officer should proceed to adjudicate an application under Section13 of
the Act.
48. The above discussion takes care of the submission of Shri Singh that
Rules of evidence have not been followed. I have already pointed out that the trial
procedure is differently contained both in the Act and in the Rules and the
procedure for adjudicating an application under Section 13 of the Act has
differently been charted out by laying down provisions of Chapter III of the Act as
also the relevant Rules framed in that behalf. Those provisions relating to the
proceeding of that particular Chapter-III does not permit of taking evidence as per
the Indian Evidence Act, and its application mutatis mutandis, as I have noted
somewhere in the earlier part of the present judgment, is confined to the trial of the
offence by the Special Court as per Rule 15 of the Act. It is true that that particular
Rule 15 also speaks of the application of Indian Evidence Act mutatis mutandis
also to the proceedings before the Authorised Officer, but in my considered view-
and that I have already expressed in some earlier part of the present judgment-
those rules of evidence be applicable only when the dispute is raised by the
delinquent public servant regarding valuation of the properties which could have
been made by the State Government for filing a petition under Section 13 of the
Act and that too when the Authorised Officer had decided to seek the assistance
37
of any Technical Expert, etc. as per the provision of Rule 11( g) of the Rules, else,
the Indian Evidence Act could never be applied to such proceedings. In case even
of a technical expert being asked to assist the Authorized Officer as per Rule 11(g),
as may appear from Section-15 of the Act, the consideration has to be only of his
report. I am of the opinion that in such a case, the report may be tendered on
affidavit and no application of the rules of Evidence Act has to be made strictly.
49. The next submission of Shri Rana Pratap Singh and Shri Chittaranjan
Sinha, Senior Counsel appearing on behalf of the appellants was that the
Authorised Officer, in spite of being requested through petitions filed before him,
specially by the two appellants Shivshankar Verma and Smt. Usha Verma for
supply of copies of relevant documents, rejected the prayer and directed the
appellants merely to have a glance of the documents. The petitions filed by
appellants Shivashankar Verma and Smt. Usha Verma appear at pages 59 and 65 of
File C of the lower court records which have been received by this Court. Through
the above petitions the appellants were making prayer for supply of copies of
seizure memos, different documents including those relating to operation of Bank
accounts besides the copies of treasury statements relating to payment of salary to
appellant Shivashankar Verma. Some of the documents, as may appear from
perusal of the petition filed before the Authorised Officer on 29.11.2010, were
Cheque Books and counterfoils of slips of different documents, may be the Cheque
Books or payment orders. Besides, the seizure was also of diary acknowledging the
receipt of gifts, etc. and copy of passport of the two appellants. The other petition
filed on 22.11.2010 in the court below was seeking copies of the Travelling
Allowance bills, pay bills and other such documents, like, the house building
advance which was granted to appellant Shivashankar Verma by the State
Government as also the valuation report. In addition to the above, the documents,
38
copies of which were sought by appellant Shivashankar Verma, related to the
seizure of electric and telephone bills, showing expenditures incurred by the
appellant in respect of those bills, besides the documents of investment in various
schemes or portfolios made by the two appellants. Some of the documents seized
were copies of drafts showing the payment of tuition fees and other expenditures to
the various educational institutions where the appellants had sent their son or
daughters for education. Likewise, the documents relating to other payments to the
appellants on account of availing leave travel concession as also those relating to
his General Provident Fund and reimbursements of different entitlements were also
sought for.
50. After having gone through the two petitions what I find is that most of
those documents were seized from the house of the appellants and seizure memos
were prepared. The formalities of conducting the search and seizing the documents
besides some of the properties were all carried out in presence of either of the two
appellants and a copy of the same was handed over to either of the appellants who
was present at that particular time. Even, the locker was unlocked in presence of the
appellant Shivashankar Verma as appears from the memorandum prepared in that
behalf and he was duly supplied copies of those documents. The documents were,
as such, recovered from the possession of the appellant and he cannot say that those
were evidence adduced by the State to jump a surprise upon the appellants,
specially, appellant Shivashankar Verma. Not only that, the agreement to sell the
land at Alipur,Phulwari to appellant Dr. Upendra Prasad Singh appears produced
by present appellant Shivashankar Verma. The will which was allegedly created by
the father of appellant Shivashankar Verma allegedly entrusting to him the gold
bars, guineas, etc. for safe custody also appears produced by him and, accordingly,
the production-cum- seizure memo was prepared which is duly available on the
39
record as per the description given in the petition under Section 13 of the Act. In
the light of the above position, in my considered view, there was no requirement
for the court to supply copies of those documents as those were the documents
which were directly in the knowledge and possession of appellant Shivashankar
Verma and he could be said to be well acquainted with the contents of those
documents. Moreover, principles of hearing the appellants on the adjudication of
the petition under Section 13 of the Act appears not violated as the appellants were
duly heard and, were, in spite of being fully acquainted with the contents of the
documents as also about the transactions they related to, allowed by the Authorized
Officer to have a glance of the documents, I have already noted, the appellants had
witnessed the seizure himself or themselves and had been handed over the copies of
each and every seizure memo as is shown by the original copy of the documents
which I have personally perused while perusing the entire lower court records
which runs into almost above seven hundred pages of hand written or typed
sheets of documents. Moreover, mere allegation of the principles of natural justice
being violated due to non-supply of the copies of the documents have been made,
without showing as to what prejudice was caused to the appellant. In fact, the
appellants appear answering all allegations made in the petition under Section 13 of
the Act. If there was no prejudice caused due to the violation of the rules of natural
justice, the mere violation had no impact on the result of the order and the same
cannot on that account be set aside.
51. Shri Singh was also contending that no document was produced in proof of
the statements of facts as were made in the petition filed under Section 13 of the
Act and the learned Authorized Officer passed the order without there being any
evidence before him and that was contrary to the principles of natural justice,
specially, when his order could divest the appellants of their rightful properties.
40
The above contention has already been answered by me just now in the previous
paragraph. I have with me the whole lower court records of Special Case No.3 of
2010 arising out of Special Vigilance Unit Case No.2 of 2007 and I have gone
through each and every page of the documents which were seized by the Vigilance
Unit and produced during the hearing of the petition under Section 13 of the Act by
the State on affidavit. I find that the learned Authorized Officer considered those
documents while passing the impugned order. As such, the principle of natural
justice does not appear violated or not observed. The catalogue of evidence was
duly placed before the Authorized Officer by fully describing them as different
annexures to the petitions and the original of those documents appear properly
placed on affidavit by the Public Prosecutor for perusal of the Authorized Officer
so that proper adjudication was made by the Authorised Officer on that petition.
The learned Authorized Officer has passed a very detailed order and when one
considers the order passed by him one could find that he has taken up each and
every asset which was found or alleged as acquired disproportionately to the known
sources of income of appellant Shivashankar Verma or which has been alleged to
be held by someone else on his behalf and after considering the relevant
documents and after assigning proper reasons the learned Authorized Officer had
gone on to hold that those were assets which were disproportionate to the known
sources of income of appellant Shivashankar Verma and were, as such, liable to be
confiscated.
52. The appellants have a right of hearing, as may appear from Section 15 of
the Act. If one scrutinizes the impugned order for finding out as to whether the
appellants had really been afforded the reasonable opportunity of being heard, then
one could find that there could not be any circumstance appearing from the whole
record of the case as also from the order impugned herein which could indicate that
41
there was any infringement on the right of the appellants of being heard by
snatching from them the opportunity in that behalf. The Vigilance Cell also appears
sending letters to the appellants calling upon them to explain the accusation and
those documents have also been brought on record and some of the records, like,
the wills created in favour of either appellant Shivashankar Verma or his wife Smt.
Usha Verma by their relatives like, grand father or father of the two appellants,
have been found to be fictitious and doubtful documents or fabricated to create a
defence. One such will dated 6.7.2006 executed by Shyamlal Singh, father of
appellant Usha Verma was executed on a stamp which had been issued much after
the date 6.7.2006 of execution of the deed. The stamp was reported issued by the
Treasury, Rai Bariely on 17.8.2006, that‟s more than a month after the date of
execution of the deed. This is proved by documents D-66 and D-67, available at
pages 84 and 85 of the bunch of documentary evidence which are report in
response to the queries of the Investigating Officer of the case submitted by the
concerned Treasury Officer, Rai Bareily( U.P.)
53. Thus, what I find is that the contention that the appellants were not
afforded proper opportunity of being heard appears of no substance.
54. Shri Singh was challenging the admissibility of records, like, D 66, D 67 or
any other correspondences entered into by the Investigating officer and the Special
Vigilance Unit so as to verifying the correctness of a document or a fact. The same
criticism was levelled as regards the reports of the Tehsildar regarding the claim of
the appellants about possessing landed properties through the father of appellant
Shivashankar Verma. The relevant reports appear at pages 58( D 55) 63 (D 56), 68
and 69( D. 57) besides the relevant record, i.e., Cadastral Survey Khatian which is
maintained by the Revenue Department in the State of U.P. I want simply to point
out that the correspondences were entered into by the public servants, like, the
42
Investigating officers who were in the rank of Dy. Superintendent or
Superintendent of Special Vigilance Unit with the Tehsildar of Mohanlal Ganj in
the district of Lucknow. Those correspondences along with the relevant letters
issued by Shri S.C. Tiwary, the Superintendent of Police, Special Vigilance Unit,
the earlier Investigating Officer of the relevant case which appear at different
pages, like, page 47, 51 and 61 are the records of the discharge of public functions
by the public servant and the corresponding responses by the Tehsildar, which I
have just noted, appearing at different pages in the form of document(D) were also
records of the discharge of the functioning of Tehsildar and, as such, they have to
be held to be admissible documents under Section 35 of the Evidence Act even if
the same were not proved. This reason I assign only to answer the contention of
learned counsel on the use of admissible document. Moreover, it hardly requires to
be pointed out that adjudication of an application under Sectin13 of the Act has to
be made only in the light of the prima facie evidence which is required to be
tendered on affidavit. The contents of the petition and the documents which were
presented before the Authorized Officer have been verified by swearing the
affidavit by Shri Jankinandan Chaudhary who was the Deputy Superintendent of
Special Vigilance Unit and one of the Investigating Officers of the case and it has
been submitted by him that the statements in the application under Section13 of the
Act were on the basis of records/documents/evidence submitted or being submitted
in the court, i.e., before the Authorized Officer which were connected with the
Special Vigilance Case and, further, that they were genuine documents which were
being filed before the Court.. It is true that the above affidavit does not speak
individually of a particular document and its contents, but when genuine and
original documents were tendered through the affidavit and its contents were also
testified through the said affidavit which might be in one line or in a couple of
43
lines, then compliance of producing prima facie evidence required by Section 13 of
the Act on production of evidence on affidavit or affidavits appears satisfactory.
The learned Authorized Officer has considered the documents which were placed
in original and are still available on the lower court records which I have myself
perused so as to examining the above contentions of the learned Senior Counsel
appearing on behalf of the appellants.
55. The learned Authorized Officer has taken up each and every accusation of
acquiring disproportionate asset and has gone on to hold by considering the
relevant evidence available to him in the light of the statements of defence
presented by the appellant Shivashankar Verma and other appellants that the
particular assets either in the form of money or in any other form were acquired by
the appellants Shivashankar Verma which was disproportionate to his known
source of income. The findings have been recorded by the learned Authorized
Officer in his own way by considering the evidence available on record. I want to
scrutinized a few of them so as to satisfying myself as to whether the adjudication
was correctly made as per requirement of law, specially, Section 15 of the Act.
56. Coming to the petition and the allegation of acquiring assets
disproportionately to the known sources of income of appellant Shivashankar
Verma, the allegations have been quantified in paragraph 20 of the petition by
stating, after calculating in the earlier paragraphs, that the total income received
from the known sources of income of appellant Shivashankar Verma and after
deducting from the same the expenditures which he could have incurred out of the
total income of Rs. 50,95,056.72 Paise it could be said that the likely savings was
Rs. 2,45,031.08 Paise. However, the assets which were found in possession of the
appellant was of the value of Rs. 2,17,02,657.37 Paise which has been detailed in
the attached annexure-3 to the petition and, as such, the disproportionate assets
44
came to Rs. 2,14,57,734.65 Paise. Some of the assets which were not verifiable
physically was of the value of Rs. 2,09,66,312/- as is indicated in Paragraph 22 of
the petition. What, therefore, appears stated is that the total discovered assets of the
appellant stood at Rs. 5,24,24,046.65 Paise, almost half of which has not been
verified till the filing of the application for confiscation of the assets. So far as the
explanation submitted by appellant Shivashankar Verma before the Special
Vigilance Unit was concerned, he was not denying or disclaiming the assets alleged
acquired by him, he was only explaining the acquisition and was explaining the
recovery of Rs. 16,49,910/- in cash from his house as also from his locker in
Allahabad Bank, Sheikhpura, Branch, Patna. Besides, Rs. 2,58,000/- the above
locker was found storing gold bars weighing 1 K.G., 800 guineas and jewelleries
of gold the value of which was Rs. 80,78,596/-. So far as the recovery of Rs.
16,49,910/- is concerned, it was stated by the appellant Shivashankar Verma that he
had sold his land situated at Alipur Phulwari which is shown as the asset of the
appellant at Serial No. 7 of paragraph 24 of the petition for valuable consideration
of Rs. 8,10,000/- and had received the consideration amount in cash from appellant
Dr. Upendra Prasad Singh and in token thereof the appellant had already entered
into an agreement to sell the property as per deed of agreement to sell dated
7.3.2007. He had received the total consideration money in two instalments as may
appear from the original deed marked D 75 at page 223 of Volume III of the
documents presented before the Authorized Officer. The first instalment in the form
of Rs. 2,58,000/- received on the day the deed was executed, i.e.,7.3.2007 and the
last instalment of Rs. 5,52,000/- was paid to appellant Shivashankar Verma on
4.7.2007 by appellant Dr. Upendra Prasad Singh.
57. There are many circumstances to reject the plea of the above payment and
receipt of a total amount of Rs. 8,10,000/- as the full consideration money of the
45
property which has been described at Serial No. 7 in paragraphh 24 of the petition
under Section 13 of the Act which pertains to Khata No.2, Survey Plot No. 96
measluring 13.5 decimals at Alipur Phulwari. The learned Authorized Officer has
noted that appellant Dr. Upendra Prasad Singh was simply the name lender and the
document D/75 the agreement to sell was a subsequently prepared document which
was brought into existence during the course of investigation of the present case. It
has further been noted as a circumstance to reject the plea that appellant Dr.
Upendra Prasad Singh had not disclosed as to what was the source from which he
advanced the money to purchase the above property from appellant Shivashankar
Verma. In addition to the reason which has been assigned by the learned
Authorised Officer, what I see after perusing the document D/75 which was
presented by the appellant Shivashankar Verma before the Special Vigilance Unit
during the course of investigation of the case when he was asked to explain the
possession of Rs. 19,07,910/- is that the document does not contain any statement
which is generally made in such documents as to what was the date or the point of
time on which the agreement was reached between the parties for sale and purchase
of that particular property. Not only that, if it is accepted for the sake of argument
that the sale or purchase was agreed and accordingly, the document was brought
into existence on 7.3.2007 which is the date appearing under signatures of different
persons including the two appellants, namely, Shivashankar Verma and Dr.
Upendra Prasad Singh then one does not understand as to why the stamp paper for
creation of the document D/75 was purchased as back as on 24.11.2006. It also
does not appear from the recital of that particular document that any negotiations
were earlier gone into prior to fixing the deal and finalizing it. Not only that, one of
the most significant features of such document is that a recital is made at the end of
the document that the document has been scribed on a particular day and date of a
46
particular month and year, but there is no such indication in the document.
Likewise, three sheets of the document are signed only by appellant Shivashankar
Verma and appellant Upendra Prasad Singh has signed the last page of the
document which also does not indicate as to why it was like that. The other
circumstance upon which the agreement to sell the property by appellant
Shivashankar Verma to appellant Upendra Prasad Singh has to be rejected is duly
identified by the learned Authorized Officer. The Special Vigilance Unit verified
the claim of sale and purchase of the stamp paper bearing no. A-580080 from the
Stamp Vendor to appellant Dr. Upendra Prasad Singh. As per Rules, the Sale
Register in respect of sold stamp of every year has to be produced before the
Collector or any other Authorized Officer for verification and checking. But, it was
found that the Stamp Vendor, namely, Dinesh Kumar Gupta, had not produced the
Register showing the sale of the stamp not only of the year 2006 but also of the
years 2007 to 2009 and that he was presenting his book on sale of the stamp in the
year 2010. Thus, there was a probability that the stamp was purchased only in the
year 2010 so as to creating a false document for supporting an equally false
statement of defence so as to escaping the criminal liabilities. In that view, I
uphold the finding of the lower court that the deed which has been described as the
document D/75 was prepared subsequently after recovery of the money so as to
explaining the illegal possession of it by appellant Shivashanakar Verma as regards
recovery of Rs. 8,10,000/- out of the total mount of Rs. 16,49,910/-.
58. The other part of the above noted recovered amount has been explained by
appellant Shivashankar verma by stating that Rs. 8,00,000/- was handed over to
him by his brother-in-law, i.e., appellant Krishna Pal Singh who had finalized the
purchase of a Flat in Aradhna Enclave, Jagdeo Path, Bailey Road, Patna and had
paid Rs. 70,000/- by a cheque dated 22.3.2007. The builders were asking for the
47
payment of further price of the Flat and as such Krishna Pal Singh( appellant in
Cr.Appeal No. 551 of 2011) had borrowed Rs. 8,00,000/- from his distant uncle,
namely, Suryabali Singh who had given to him liquid cash of Rs. 8,00,000/- by
handing over the said amount to appellant Shivashankar Verma for safe keeping
but in the meantime, the raid was conducted and the amount was recovered. The
learned Judge has rightly held that if the amount was borrowed as a loan, it was
required to be shown to be paid either by a bank draft or a cheque issued by
Suryabali Singh who is said to have given the money on loan. But, it was not like
that. Not only that, no evidence has been produced to show as to how the said
Suryabali Singh had got that much of money for being given to appellant Krishna
Pal Singh. I see another circumstance to reject the defence of the appellant. It is
stated by Krishnapal Singh and appellant Shivashankar Verma tht Krtishnapal
Singh Was employed in the Airtel at an annual package of Rs. 8,00,000/- or so. In
that view he could have obtained legitimate housing loan from any banking
organization, easily to secure his acquisition of the flat. In the above background, it
was rightly held by the learned Authorized Officer that Rs. 8,00000/- was also the
money belonging to appellant Shivashankar Verma.
59. Besides the above two explanations, appellant Shivashankar Verma
submitted in his statement of defence that the remaining amount of Rs. 5, 35, 684/-
out of the total of Rs. 19,07,910/- which was recovered either from his house or his
locker was received as gift on the occasion of marriage of Dr. Rashmi Verma, his
daughter. The above plea has been rejected by the learned Authorized Officer in
want of satisfactory, supporting material. In my considered view a public servant
might have friends and relatives, but even if he is as popular as one may claim
himself to be, it would never fetch in gift hard cash to the tune of Rs. 5,35,684/- on
the occasion of the marriage of one‟s daughter. This is one reason upon which the
48
whole defence appears misplaced.
60. In order to explaining his assets which have been alleged disproportionate
to his known sources of income, the appellant Shivashankar Verma has stated that
his wife appellant Usha Verma received as gift an amount of Rs. 2,00000/- from
one Dr. Ila Tripathi by two cheques which are described in D1 which is available at
Serial no. 3 of Volume I of the documents. The explanation as furnished by
appellants Shivashankar Verma and his wife is that the gift by Dr. Tripathi was out
of love and affection she was having for appellant Usha Verma and it was to help
the two appellants out at the time of construction of their house, as may appear
from the replies submitted by appellant Shivashankar Verma in response to letter
no. FN Addl. DIT(Inv.) AD/3/97-98/0285 dated 12.9.1997 by which investigation
had been started against the appellant Shivashankar Verma on some unexplained
income and calculation of tax. The appellant Verma was pointing out that Dr. Ila
Tripathi who was working in B.B.C., London, was visiting Patna regularly and her
son was also a medical student who was also staying in Patna and due to affection
towards his wife, i.e., appellant Usha Verma, when she learnt that the appellants
were constructing a house in Patna, she( Dr. Ila Tripathi) gifted the amount to her
to help the appellants in the house construction. The original letter by which the
two cheques bearing No. 544494 dated 17.1.1996 and 544964 dated 23.1.1996
were sent does speak of gifting a consolidated amount of Rs. 2,00000/- by the two
cheques each of the valuation of Rs. 1,00,000/- out of love and affection to
appellant Usha Verma. But, it is completely silent on the gift of amount to help the
appellants out of the financial constraints in construction of their house. Likewise,
when it came to explaining the recovery of 1 K.G. of gold bars, 800 guineas and
jewelleries, the total weight of which was 9 K.Gs. 218 grams appellant
Shivashankar verma was submitting in his defence that his father was an
49
agriculturist who had sufficient landed properties at his paternal house and the
agricultural produce thereof was utilized by his father appellant Rampal Verma for
purchasing gold which was at the relevant time costing Rs. 20/- per Bhari. The
Special Vigilance Unit was seeking informations about the properties owned by
appellant Ram Pal Verma from the Tehsildar of Mohanlalganj and it was reported
that appellant Ram Pal Verma had 2.288 hectares of land at village Garha, the total
income from which from the year 1986 to 2007 could be Rs. 10,55,000/- It was
further reported that Tarabati Devi, the 2nd wife of appellant Ram Pal Verma and
step mother of appellant Shivashankar Verma, was also owning land in the same
village measuring 0.537 hectares and the total income of Tarabati Devi out of that
land right from 1986 to 2007 was calculated at Rs. 3,45,000/-. It has to be noted
that appellant Shivashankar Verma had three more brothers, namely, Narendra
Kumar, Satyendra Kumar and Jitendra and one sister, Lajjabati being married to
one Dhirendra Kumar Singh. Appellant Shivashankar Verma was the only
employed person, his other brothers were unemployed and they were dependent
wholly upon the agricultural produce for meeting out their needs and other costs
including the cost carrying out the agricultural operations. In that view, it could be
very difficult for any farmer of such a meager amount on account of property of
such a small holding that he would be purchasing 1 K.G. gold bars, 800 guineas
which is claimed donated by appellant Ram Pal Verma by his will which has been
presented by appellant Shivashankar Verma before the Investigating Officer of the
case and for that the receipt-cum-seizure memo was prepared on 1.4.2010 which
appears at page 227 of the documents along with a copy of the will which was
allegedly scribed by appellant Ram Pal Verma. The seizure memo in respect of the
recovery of the gold from the locker of appellant Shivashankar Verma appears at
page 28 of Volume-III of the documents as D.46 and the description of the gold
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bars has been indicated in that seizure memo D.46. It is noted that the gold bars
were manufactured by ARGOR, HERAEYS, Switzerland bearing no. G27892. I
find from the statements made by appellant Ram Pal Verma in his will which was
produced by appellant Shivashankar Verma before the investigating agency that he
claimed to have purchased the gold ornaments and other gold items and prior to
handing the gold-bars and guineas, he melted them to create gold-bars and
thereafter handed the gold bars and guineas to Shivshankar verma which was quite
ahead of the seizure of the property or the execution of the will on 10.1.2007. The
seizure of the gold bars was made on 19.7.2007. The will is a document which has
been typed on a plain paper and was notarized before the Notary Public. The
learned Authorised Officer has observed that there is no case of appellant
Shivashankar Verma or his father that appellant Ram Pal Verma that he had ever
gone to Switzerland to purchase gold bars. In fact, it is admitted by appellant
Shivashankar Verma that he had visited Switzerland sometimes in the year 2005.
The learned Authorised Officer has rightly rejected the defence of the appellant
Shivashankar Verma on that ground besides other grounds. The very ground of
purchasing gold bars which was made in Switzerland by appellant Ram Pal Verma
appears fictitious and an after thought. Likewise, the will in respect thereof also
appears antedated. I do not see any fallacy in the finding of the learned Authorised
Officer while he was rejecting the defence statements of the appellants.
61. In order to justify the recovery of money or finding the same, the appellants
were taking pleas of having received gifts from the grand father of appellant
Shivashankar Verma but the investigation has revealed that his grand father was
separated from appellant Ram Pal Verma long back and had no reasons nor the
income to gift an amount of Rs. 1,50,000/- by the deed of gift dated 6.7.2006
which D.68 appearing at page 87 of Volume-III of the documents.
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62. It may be pointed out that the grand father of the appellant Shivashankar
Verma, namely, Ram Sevak Verma had no independent source of income. He did
not even have the landed properties as per report of the Revenue Officials and, as
such, there was every possibility that the appellant had utilized his own illegally
amassed money in creating the deed of gift D.I(IX) which is available at page 10
of Volume-I of the documents. Curiously enough, the date of purchase of the stamp
is so cryptic as it is not possible to pick the same out and it is indicated as if it had
been sold on 21.5.1998 but after quite some application I could find out that the
very stamp paper could have been purchased on 13.1.2001 much after the execution
of the will. This record further creates a probability in respect of the statements
made in the application under Section 13 of the Act that the assets which were
unearthed during the course of investigation might have been obtained by appellant
Shivashankar Verma by commission of an offence under the Prevention of
Corruption Act.
63. Besides, the conduct of the appellant does not behove of a public servant.
The appellant obtained a loan for purchasing a car but he did not utilize the
sanctioned amount to finance the purchase of the Maruti vehicle and he was asked
to explain the above conduct of his by the State Government. In addition to all the
above, being the Class I Officer and in the rank of Secretary of a Department of
the State Government,, he was not hesitating in creating the document D 68 by
antedating it as may appear from the will executed by his father-in-law, namely,
appellant Shyam Lal Singh which is available at page 87 of Volume-III of the
documents as it was found out as may appear from D.66 and D.67 which are
available at pages 84 to 86 of the same Volume-III of documents that the stamp on
which the deed of gift in favour of appellant Usha Verma was scribed showing a
gift of an amount of Rs. 1,50,000/- had been purchased on 17.8.2006 from Stamp
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Vendor Kamlesh Kumar Gupta. The date of sale of the stamp was shown on it as
19.5.2006. This is the solitary reason that I have doubted all the gift deeds which
have been prepared either showing the receipt of money or property or transfer of
the same as in the case of transfer of a piece of a land by appellant Usha Verma in
favour of Smt. Suman Lata Verma, her sister. Those were all fabricated records to
cover up the misdeeds of appellant Shivashankar Verma and, thereby, to mislead a
Judge not to speak of misleading the investigating agency.
64. The learned Authorised Officer has dealt all these aspects himself in his
own way in different paragraphs of his order by picking out the items from the
petition filed under Section 13 of the Act before him and has further gone on to
consider other assets, like finding of NSC or documents of other investments in the
name of either of the two appellants, namely, Shivashankar Verma or Usha Verma.
The learned Authorized Officer has rightly held that appellant Shivashankar Verma
was operating many Bank Accounts in different Banks. There were balances lying
in those Accounts but there is no explanation as to how those amounts were
obtained by the appellants so as to creating those deposits.
65. There is no dispute that Smt. Usha Verma wife of appellant
Shivashankar Verma was a house wife; she did not have any individual income.
Her father was a lowly paid Gram Sevak whose pension was of Rs. 2612/- only.
But, all on a sudden she was showing her own income and was, thus filing her
individual income tax returns. Not only that, her income started multiplying so
much so that she was purchasing shares and debentures in various Companies
besides making investments of higher values in different high yielding portfolios.
She had multiple bank accounts in many nationalized banks and her children were
studying in a medical institute where the fees, etc. were in lacs annually. She filed
statements of receipts, returns from shares, etc. held by her regularly. This meteoric
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financial rise of Smt. Usha Verma is mind boggling and defies reasons which might
have been placed by her or her husband either before the learned Authorized
Officer or before the Income Tax Authorities. This unsavory rise of Smt.Verma
from a penniless lady to a lady of sound financial position, while on the one hand,
explains as to how corruption multiplies, on the other hand it exhibits the demerit
of the submission on the income of appellants being sanctified due to filing of tax
returns by them. One has always to remind oneself that tax returns do not sanctify
and legalize illegally earned money. Tax returns are instruments only in respect of
the receipts in a financial year which may be subject to assessment of tax to be
paid. Moreover, the appellant Shivashankar Verma has received notice from the
Income Tax Department questioning his statements which only castigates his claim
of solemnity of his statements of defence that his returns sanctified his acquisition.
I have spoken about the meteoric financial arise of Smt.Verma. There could
not be any further example of it than the deed of gift notarized by her in favour of
her sister Smt. Sumanlata Verma in respect of the land situated at Ramner-
Moiuddinpur measuring 01 Biswa 10 dhurs. Her appears a case of pauper to fat-
purse, multiplying due mainly to the misdeeds of her bureaucrat husband.
66. On consideration of the reasons which have been assigned by the learned
Authorised Officer for directing the confiscation of the properties, I find that those
were completely borne out of the facts and documents stated or presented by the
sides and the order impugned herein does not suffer from any infirmity or illegality,
as a result of which these appeals appear of no merit and the same are dismissed.
67. However, while perusing the records seized by the Special Vigilance Unit
during the course of investigation of the case, I came across the documents which
appears as D2(V), D2(VI), D2(VII), D2(VIII), D2(IX) and D2(X). The document
D2(V) is in respect of purchase of silver, utensils, gold and jewelleries, of the
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value of Rs. 3,41,805/- and there was no explanation from the appellant
Shivashankar Verma in that behalf. Likewise, the documents D2(VI) to D2(X) are
documents which were recovered from the possession of appellants Shivashankar
Verma which show cash receipt of Rs. 70,00,000/-( seventy lacs) was allegedly
issued on account of receipt of the above amount on different dates by M/S Atlanta
Pumps, Pvt. Ltd., Budha Colony, East Boring Canal Road, Patna with its Head
Office at No. 487, D1 and D2, 4th Cage, Peenyl Industrial Area, Bangalore. The
Special Vigilance Unit has alleged that these were investments made by the
appellant Shivashankar Verma in the above Firm and the return was by way of
payment of interest. It hardly requires to be pointed out that the Investigating
Agency has not only to investigate the facts alleged but if it comes during the
investigation of the case of the present nature but if there was any money trail, then
the investigating agency has to investigate that trail and has to recover the money
also. The invested money may not be recovered as the money may not be lying at
any particular place on account of its pumping into the financial circulations in the
industries or other financial institutions. Still, it was desirable that the Special
Vigilance Unit could have questioned the persons, specially one Kailash Chand
Chaudhary who was signing the receipts by arresting him and obtaining his remand
for questioning.
68. While I was going through the documents which were filed by the Special
Vigilance Unit in support of the application filed under Section 13 of the Act, I
could always have an inkling that such deeper complicity of a public servant in
commission of the offence could not have been secret; it must have been in the
knowledge of all concerned. Every effort appears made by all concerned to create
evidence and, thereby, put a shield around the appellant Shivashankar Verma to
lend authenticity to all his acquisitions, as appears from documents showing
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receipts of informations and thereby to record the investment or acquisition which
were submitted to different authorities by the appellants. The Special Vigilance
Unit also appears soft upon appellant Shivashankar Verma as it does not appear to
have investigated the huge investment of Rs. 70,00,000/- in M/S Atlanta Pumps,
Pvt. Ltd. The Court desires that it should be investigated further if it has not been
done.
69. Apart from the above, this Court feels that whatever was recorded or
unearthed may only be the tip of the iceberg; treasures amassed by corrupt means
could be huge. As such, it is highly desirable that the investigation be expedited
and further informations be gathered at the earliest for being placed before the
Authorized Officer, specially, when the investigating agency has itself stated that
some assets of Smt. Verma and Shivashankar Verma were still being investigated
into.( Please see paragraph 22 of the petition under Section 13 of the Act).
( Dharnidhar Jha, J.)
Patna High Court
The 19th August, 2011
Kanth/A.F.R.