{"id":78478,"date":"2011-08-19T00:00:00","date_gmt":"2011-08-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/dr-upendra-prasad-singh-vs-the-state-of-bihar-through-vig-on-19-august-2011"},"modified":"2018-05-01T13:36:22","modified_gmt":"2018-05-01T08:06:22","slug":"dr-upendra-prasad-singh-vs-the-state-of-bihar-through-vig-on-19-august-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/dr-upendra-prasad-singh-vs-the-state-of-bihar-through-vig-on-19-august-2011","title":{"rendered":"Dr. Upendra Prasad Singh vs The State Of Bihar Through Vig on 19 August, 2011"},"content":{"rendered":"
Patna High Court<\/div>\n
Dr. Upendra Prasad Singh vs The State Of Bihar Through Vig on 19 August, 2011<\/div>\n
Author: Dharnidhar Jha<\/div>\n
                                                                                 1\n\n\n\n\n     IN THE HIGH COURT OF JUDICATURE AT PATNA\n                  - ----\n            Criminal Appeal (SJ) Nos.507,546,550 and 551 of 2011\n                         ----\n<\/pre>\n
     Against the order dated 17.3.2011 passed by the Additional
\n     District and Sessions Judge-VI-cum-Authorised Officer, Special
\n     Court No.2, Vigilance, Patna, in Special Case No.3 of 2010
\n     arising out of Special Vigilance Unit Case No. 2 of 2007.\n<\/p>\n
                             —-\n<\/p>\n
1. Shiva Shankar Verma , son of Sri Ram Pal Verma, the then Secretary, Minor
\n     Irrigation, Govt. of Bihar, Patna, resident of House No. 406, Saubhagya
\n     Sharma Path, Rukanpura, Bailey Road, Patna-1\n<\/p>\n
2. Smt. Usha Verma, wife of Shri Shiva Shankar Verma, resident of House No.
\n     406,Saubhagya Sharma Path, Rukanpura, Bailey Road, Patna-1
\n                                          … …                Appellants
\n                                      Versus\n<\/p>\n
1. The State Of Bihar through Vigilance\n<\/p>\n
2. Sri Ashok Kumar Chauhan, Principal Secretary, Vigilance Department, Govt.
\n    of Bihar, Patna\n<\/p>\n
3. Sri Janki Nandan Chaudhary, D.S.P., Special Vigilance Unit, Govt. of Bihar
\n    through Inspector General, Vigilance, Special Vigilance Unit, Bihar
\n                                                   …. …. Respondents
\n       ( in Cr. Appeal No. 507 of 2011)
\n                                        with
\n                      Criminal Appeal (SJ) No. 546 of 2011
\nDr. Upendra Prasad Singh, son of late Rambachan Singh, resident of Professor\u201fs
\nColony, Kankarbagh, P.S. Patrakarnagar, District Patna
\n                                           …. …. Appellant
\n                                      Versus
\nThe State Of Bihar Through Vigilance
\n                                          …. …. Respondent
\n                                        with
\n                      Criminal Appeal (SJ) No. 550 of 2011
\nRam Pal Verma @ Ram Pal, son of late Ram Sevak, Resident of Village Garha,
\nP.S. Nagram, District Lucknow ( U.P.)
\n                                           …. …. Appellant
\n                                      Versus\n<\/p>\n
1. The State Of Bihar through Vigilance\n<\/p>\n
2. Sri Ashok Kumar Chauhan, Principal Secretary, Vigilance Department, Govt.
\n   of Bihar, Patna\n<\/p>\n
3. Sri Janki Nandan Chaudhary, D.S.P., Special Vigilance Unit, Govt. of Bihar
\n     through Inspector General, Vigilance, Special Vigilance Unit, Bihar
\n                                             …. …. Respondents
\n                                        with
\n                      Criminal Appeal (SJ) No. 551 of 2011\n<\/p>\n
1.       Shyam Lal Singh, son of late Ram Milan Singh, resident of Village
\n         Dedaur,P.S.Gurbaxganj, District Rai Bareli\n<\/p>\n
2.       Chandra Pal Singh, son of Shri Shyam Lal Singh, resident of Village
\n         Dedaur, P.S.Gurbaxganj, District Rai Bareli\n<\/p>\n
3.       Krishna Pal Singh, son of Shri Shyam Lal Singh, resident of Village
\n                                                                                           2<\/span><\/p>\n
              Dedaur, P.S\/.Gurbaxganj,District Rai Bareli\n<\/p>\n
       4.     Smt. SumanVerma alis Suman Lata Verma, wife of Devendra Kumar
\n              Verma, resident of Village Raja Ram Kapaurwa, P.S.Shivgarh, District
\n              Rai Bareli
\n                                               …. …. Appellants
\n                                           Versus\n<\/p>\n
      1. The State of Bihar through Vigilance\n<\/p>\n
      2. Shri Ashok Kumar Chauhan, Principal Secretary, Vigilance Department,
\n          Government of Bihar, Patna\n<\/p>\n
      3. Shri Janki Nandan Chaudhary, Dy. S.P., Special Vigilance Unit
\n                                              …. …. Respondents
\n      Appearance :\n<\/p>\n
      (In CR. APP (SJ) No. 507,550 and 551 of 2011)
\n      For the Appellant\/s : Shri Rana Pratap Singh, Sr. Advocate
\n                             Shri Chittaranjan Sinha, Sr. Advocate
\n                             Shri Sumat Singh, Advocate
\n                             Shri Rajeshwar Prasad, Advocate
\n                             Shri Anirban Kundu, Advocate
\n                             Shri Krishna Narayan Jha, Advopcate
\n                             Shri Sanjay Kumar Singh, Advocate
\n       (In CR. APP (SJ) No. 546 of 2011)
\n      For the Appellant : Shri Chandra Shekhar, Sr. Advocate
\n                             Shri Lal Babu Singh, Advocate<\/p>\n
      For the Respondents : Shri Rama Kant Sharma, Sr. Advocate
\n      (In all the appeals)  Shri Arvind Kumar, Advocate
\n                            Shri Santosh Kumar Pandey, Advocate.\n<\/p>\n
                            PRESENT
\n         THE HONOURABLE SHRI JUSTICE DHARNIDHAR JHA\n<\/p>\n
                                —-\n<\/p>\n
Dharnidhar Jha, J.- The present batch of four appeals arises out of an order passed by<\/p>\n
       the learned Additional District and Sessions Judge-cum-Authorised Officer,<\/p>\n
       Patna, on 17.3.2011 under Section 15 of the Bihar Special Courts Act, 2009, in<\/p>\n
       connection with Special Case No. 3 of 2010 arising out of Special Vigilance Unit<\/p>\n
       Case No. 2 of 2007 under Section 13(2) read with Section 13(1)(e) of the<\/p>\n
       Prevention of Corruption Act, 1988 by which the learned Authorised Officer<\/p>\n
       directed the assets belonging to appellant Shivashankar Verma worth Rs.<\/p>\n
       1,43,96,265\/- be confiscated to the State of Bihar. It was further directed that<\/p>\n
       appellant Shivashankar Verma surrender or deliver possession of the assets<\/p>\n
       shown in paragraph 24 of Annexure- IV appearing at serial nos. 1 to 13 to the
\n                                                                                      3<\/span><\/p>\n
District Magistrate, Patna who was to take possession of all the movable and<\/p>\n
immovable assets within thirty days from the date of the service of the order,<\/p>\n
failing which the District Magistrate, Patna or the Authorised Officer was to take<\/p>\n
possession by taking all coercive steps in view of the provision contained in<\/p>\n
Section 18(2) of the Bihar Special Courts Act, 2009.\n<\/p>\n
2.     The two appellants of Cr. Appeal No. 507 of 2011, namely, Shivashankar<\/p>\n
Verma and Smt. Usha Verma, are spouses, Shivashankar Verma on the relevant<\/p>\n
date being the Secretary, Department of Minor Irrigation, Govt. of Bihar, Patna.<\/p>\n
The appellant in Cr. Appeal No.546 of 2011 Dr. Upendra Prasad Singh has been<\/p>\n
held to be an abettor by attempting to conceal the property relating to Khata No.<\/p>\n
2, Plot No. 96, Phulwari, Alipur. Appellant Ram Pal Verma alias Ram Pal<\/p>\n
(appellant in Cr. Appeal No. 550 of 2011) is the father of appellant Shivshankar<\/p>\n
Verma whereas appellants Shyam Lal Singh, Chandra Pal Singh and Krishna Pal<\/p>\n
Singh are the father-in-law and brothers-in-law of appellant Shivashankar Verma.<\/p>\n
Appellant No. 4 Smt.Suman Verma alias Suman Lata Verma is the sister of<\/p>\n
appellant Smt.Usha Verma, and they have equally been arrayed as persons who<\/p>\n
connived with the appellant Shivashankar Verma in concealing the assets earned<\/p>\n
by him which was disproportionate to his known sources of income in various<\/p>\n
ways, as may appear from the discussions likely to be made by me while<\/p>\n
considering the four appeals. Thus, what is admitted is that except appellant Dr.<\/p>\n
Upendra Prasad Singh, the solitary appellant in Cr. Appeal No.546 of 2011, all<\/p>\n
the appellants are related to each other either by blood or by marriage.<\/p>\n
3.     As appears from the statements of facts made by the learned lower court,<\/p>\n
i.e., the Authorised Officer, Special Vigilance Unit Case No.2 of 2007 was<\/p>\n
instituted on 3.7.2007 under Section 13(2) read with Section 13(1)(e) of the<\/p>\n
Prevention of Corruption Act on the basis of reliable source of information that
\n                                                                                         4<\/span><\/p>\n
appellant Shivashankar Verma, Secretary, Minor Irrigation Department, Govt. of<\/p>\n
Bihar was in possession of assets disproportionate to the known source of his<\/p>\n
income worth Rs. 6,87,000\/- in form of movable and immovable properties.<\/p>\n
While the case was being investigated into, huge properties amassed by appellant<\/p>\n
Shiva   Shankar     Verma    was    allegedly   discovered    which    were    quite<\/p>\n
disproportionate to the known sources of his income.\n<\/p>\n
4.      It was stated by the State of Bihar in its petition under Section 13 of the<\/p>\n
Bihar Special Courts Act, 2009( \u201eAct\u201f in short) that during search operations on<\/p>\n
6.7.2007 in connection with the above noted case, cash of Rs. 1,64,990\/- and 578<\/p>\n
Dollars which were of the value of Rs. 24,854\/-, were recovered and seized from<\/p>\n
the house of appellant Shiva Shankar Verma, that\u201fs, House No.406, Saubhagya<\/p>\n
Sharma Patha, Rukanpura, Bailey Road, Patna-1. The above recoveries were<\/p>\n
made on 6.7.2007. Besides the above amount of cash in Indian and foreign<\/p>\n
currencies, other articles were also found there but they were not seized in spite of<\/p>\n
being shown in the inventory papered on the spot in presence of the family<\/p>\n
members of the appellant Shiva Shankar Verma. Those articles were found valued<\/p>\n
at Rs. 22,14,893\/- as shown in Annexure 3 to the petition filed under Section 13<\/p>\n
of the Act by the State of Bihar.\n<\/p>\n
5.      Appellant Shiva Shankar Verma was operating a bank locker bearing no.<\/p>\n
289 in Allahabad Bank, Sheikhpura, Bailey Road, Patna and on search of the same<\/p>\n
it was found storing gold bar weighing 1 K.G., 800 guineas and gold ornaments,<\/p>\n
total value of which, as per the recognized Valuer, came to Rs. 80,78,596\/-. In<\/p>\n
addition to the above quantity of gold and other gold articles, Rs. 2,58,000\/- in cash<\/p>\n
was also recovered from the said locker.\n<\/p>\n
6.      The State of Bihar stated that appellant Shiva Shankar Verma, residing in<\/p>\n
House no. 406, Saubhagya Sharma Path, Rukanpura, Bailey Road, Patna-1, was the
\n                                                                                     5<\/span><\/p>\n
permanent resident of Village Garha, P.S. Nagram, Tehsil Mohanlal Ganj, District<\/p>\n
Lucknow (U.P.). His father appellant Ram Pal Verma @ Ram Pal was a farmer<\/p>\n
holding 5.5.hectares of land, the total income from which, as per the report of<\/p>\n
Tehsildar, Mohanlalganj was Rs. 50,000\/- per annum and on computing the annual<\/p>\n
income from 1986 to 2007 the total income of appellant Ram Pal Verma came to<\/p>\n
Rs. 10,55,000\/- from his agricultural operations over his agricultural land. It is not<\/p>\n
denied that appellant Ram Pal Verma alias Ram Pal was earlier married to Tulsa<\/p>\n
Devi who gave birth to appellant Shiva Shankar Verma and his sister Lajjawati<\/p>\n
Devi whereafter she demised. Appellant Ram Pal Verma, thereafter, married<\/p>\n
Tarabati Devi, the step mother of appellant Shiva Shankar Verma from whom<\/p>\n
appellant Ram Pal Verma begot three sons, namely, Narendra Kumar, Satyendra<\/p>\n
Kumar and Jitendra Kumar. Thus, appellant Shiva Shankar Verma had three<\/p>\n
brothers and one sister. Except appellant Shiva Shanakar Verma, who was in<\/p>\n
service, his remaining three brothers were unemployed and were dependent on the<\/p>\n
agricultural income of their family. In addition to 5.5. hectares land, appellant Ram<\/p>\n
Pal Verma had also in his possession 0.537 hectares of land at Village Garha and<\/p>\n
annual income, as reported by the Tehsildar, from that land was Rs. 16,000\/- and<\/p>\n
on calculation of the above income from 1986 to 2007, he could also have an<\/p>\n
additional annual income of Rs. 3,45,000\/-.\n<\/p>\n
7.     The State of Bihar stated, which does not appear denied, that appellant<\/p>\n
Ram Pal Verma was originally resident of Village Sehajadpur and he was the son<\/p>\n
of late Ram Sevak Verma who had three other sons also. Ram Sevak Verma, the<\/p>\n
father of appellant Ram Pal Verma, had got property from his maternal side at<\/p>\n
Garha and that property was given to appellant Ram Pal Verma while the property<\/p>\n
which was located at Village Sehjadpur was shared by other three brothers of<\/p>\n
appellant Ram Pal Verma.\n<\/p>\n
                                                                                   6<\/span><\/p>\n
8.     It was stated further that appellant Shyam Lal Singh who happens to be the<\/p>\n
father-in-law of appellant Shiva Shankar Verma, was a Gram Sevak in Rai Bareli<\/p>\n
( U.P) and he retired from service on 31.3.1998 and his pension was Rs. 2,612\/-<\/p>\n
only in the year 2001. It has further been mentioned that Smt. Usha Verma, who is<\/p>\n
the wife of appellant Shiva Shankar Verma and daughter of appellant Shyam Lal<\/p>\n
Singh showed her income from shares of different companies and she had her<\/p>\n
holdings in different companies in her name which was still being investigated into.<\/p>\n
There was no dispute about the fact that appellant Smt. Usha Verma was the house<\/p>\n
wife and she did not have any independent personal income and was not in a<\/p>\n
position to invest or to purchase some shares or holdings in companies. It was<\/p>\n
found during the investigation that during the check period starting from 1.1.1986<\/p>\n
to 31.5.2007, as per Annexure-2 to the petition under Section 13 of the Act,<\/p>\n
appellant Shiva Shankar Verma had spent Rs. 48,50,025.64 P. against his total<\/p>\n
income of Rs. 50,95,056.72P. After deducting from his total income, the amount<\/p>\n
spent by appellant Shiva Shankar Verma, his savings came to Rs. 2,45,031.08<\/p>\n
Paise. Appellant Shiva Shankar Verma was found in possession of assets worth Rs.<\/p>\n
2,17,02765.73P. as per Annexure 3 to the petition in his name or in the names of<\/p>\n
his family members and others and after deducting the above said amount of Rs.<\/p>\n
2,45,031.08 Paise. the assets which were found disproportionate to his known<\/p>\n
sources of income which was possessed by appellant Shiva Shankar Verma was to<\/p>\n
the tune of Rs. 2,14,57,734.65Paise. The description of properties, both movable<\/p>\n
and immovable, found possessed disproportionately by appellant Shiva Shankar<\/p>\n
Verma to his known source of income was detailed in paragraph 24 of the petition<\/p>\n
filed under Section13 of the Act and it was valued at Rs. 1,43,96 265\/- which was<\/p>\n
prayed to be confiscated during the pendency of the trial of the Special Vigilance<\/p>\n
Unit Case No.2 of 2007.\n<\/p>\n
                                                                                    7<\/span><\/p>\n
9.     As required by Section14 of the Act, on receipt of the application made<\/p>\n
under Section 13 thereof, the Authorised Officer appointed under the Act issued<\/p>\n
notices to the appellants calling upon them to indicate the        sources of their<\/p>\n
respective income, earnings or assets out of which or by means of which he or she<\/p>\n
had acquired such money or properties along with the evidence on which the<\/p>\n
appellants relied upon and to show cause as to why the properties which were<\/p>\n
alleged to be the properties acquired by appellant Shiva Shankar Verma by means<\/p>\n
of committing the offence under the Prevention of Corruption Act be not<\/p>\n
confiscated to the State Government.         The appellants appeared before the<\/p>\n
Authorised Officer and filed their individual written statement of defence by way of<\/p>\n
show cause before Special Court No.2, Vigilance, Patna who was the Authorized<\/p>\n
Officer in the present case.\n<\/p>\n
10.       As regards appellants Shiva Shankar Verma and his wife Smt. Usha<\/p>\n
Verma, they filed two applications showing their causes in response to the notices<\/p>\n
issued to them. It was stated by appellant Shiva Shnkar Verma that before joining<\/p>\n
the Indian Administrative Service in 1981 and being allotted Bihar Cadre, he had<\/p>\n
joined the Sales Tax Department in the Govt. of Uttar Pradesh in the year, 1976 and<\/p>\n
had worked in that department till 1979 whereafter he joined Indian Forest Service<\/p>\n
under the Govt. of India and worked in Himachal Cadre of that service till 1981<\/p>\n
prior to joining the Indian Administrative Service. Appellant Shiva Shankar Verma<\/p>\n
based his defence on the income tax returns and other documents by which he had<\/p>\n
disclosed to the proper authorities his income and according to that his total income<\/p>\n
came to Rs. 88,39,217.65P. He stated that he had entered into an agreement to sell<\/p>\n
his land for Rs. 8,10,000\/- with appellant Dr. Upendra Prasad Singh and had<\/p>\n
received the above amount after having executed an agreement to sell prior to the<\/p>\n
search of his house. He had income from his Hindu- undivided- family- properties
\n                                                                                     8<\/span><\/p>\n
and he had filed return of that income also. Besides, he received gifts in the<\/p>\n
marriage of his elder daughter from his family members and relatives amounting to<\/p>\n
Rs. 3,15,000\/- and also Rs. 2,20,684\/- from the guests. In support of his defence of<\/p>\n
receiving Rs. 3,354,684\/- as gifts on the occasion of his daughter\u201fs marriage,<\/p>\n
appellant Shiva Shankar Verma had annexed certain documents. Appellant Shiva<\/p>\n
Shankar Verma stated that his wife appellant Smt. Usha Verma had also filed<\/p>\n
income tax return which had been accepted by that particular department and<\/p>\n
according to those documents, her total income during the period was Rs.<\/p>\n
20,00,00\/- approximately. In addition to the above, appellant Shiva Shankar Verma<\/p>\n
had also earned scholarship from the Govt. of U.P. from the period August 1976 to<\/p>\n
March 1979 and from March 1979 to August, 1981. When he was in the Indian<\/p>\n
Forest Service, he received salary, etc., and thus his total savings came to Rs.<\/p>\n
1,50,000\/- during the check period. He submitted that Dollars which were found in<\/p>\n
the locker of the appellant of the value of Rs. 24,854\/- were his savings when he<\/p>\n
had visited Fizi, Geneva, and Chaina officially and had saved that money out of his<\/p>\n
official tour.\n<\/p>\n
11.        It appears from the first show cause filed by appellant Shiva Shankar<\/p>\n
Verma that he has made some anomalous statement in paragraph 20 by stating that<\/p>\n
his total income included that of his wife which came to Rs. 1,08,392.17 including<\/p>\n
8 lacs which was kept by appellant Krishnapal Singh which had been deposited<\/p>\n
with him for purchasing a flat in Patna and, as such, the State of Bihar had illegally<\/p>\n
concealed about rupees 57 lacs so as to making out an offence for prosecuting him<\/p>\n
as also to confiscate his properties.\n<\/p>\n
12.       As regards the expenditure which was incurred by appellant Shiva<\/p>\n
Shankar Verma and his wife, it was stated by him that the expenditure which was<\/p>\n
made by him on air travel was not his own expenditure, but the same had been
\n                                                                                   9<\/span><\/p>\n
incurred by the Govt. of Bihar. Similarly, there was duplication in other costs said<\/p>\n
to be incurred by the appellant on the purchase of computer which was already<\/p>\n
included in the inventory. In that view of the matter, it was stated by appellant<\/p>\n
Shiva Shankar Verma that his household expenses which were valued to be 1\/3 rd of<\/p>\n
his total income was much less than he actually had incurred, as his daughters and<\/p>\n
son were residing out side in hostels and colleges in connection with their studies.<\/p>\n
Besides, the inventory valuation of cars and household articles had been included<\/p>\n
on a higher side and by duplicating them. The property measuring 13.5 decimals of<\/p>\n
land situated at Alipur had been sold and that property should not have been<\/p>\n
included.\n<\/p>\n
13.         As regards the recovery of gold bars, guineas and jewelleries from his<\/p>\n
Bank locker,, it was stated by appellant Shiva Shankar Verma and his wife that<\/p>\n
those belonged to his father appellant Ram Pal Verma alias Ram Pal which had<\/p>\n
been given by him to appellant Shiva Shankar Verma for keeping in safe custody<\/p>\n
for which a registered will was also executed much prior to the search of the<\/p>\n
locker. Some of the parts of the jewelleries belonged to appellant Smt. Ushal<\/p>\n
Verma wife of appellant Shiva Shankar Verma which had been received by her as<\/p>\n
stridharn property and some part of it belonged to his daughter opposite parties 1<\/p>\n
and 2 in the court below. It was mentioned that his total ancestral land holding was<\/p>\n
measuring 13 bighas out of which, on ten bighas pepermint, which was used in<\/p>\n
manufacture of mentha oil was cultivated whereas on the rest of the land wheat and<\/p>\n
other agricultural produces were also cultivated from which the average income of<\/p>\n
his Hindu undivided family was to the tune of Rs. 4.5 lacs per annum.<\/p>\n
14.         The appellant Shiva Shankar Verma and his wife filed a supplementary<\/p>\n
show cause and it was stated that the expenditure which had been shown incurred<\/p>\n
by the appellants was not correct and the same was exaggerated and it was further
\n                                                                                    10<\/span><\/p>\n
mentioned that so far as the allegation of different expenses in the notice was<\/p>\n
concerned, those were also illegal and not exact. In fact, most of the statements by<\/p>\n
appellant Shiva Shankar Verma and his wife appellant Smt. Usha Verma were by<\/p>\n
way of explaining the earlier statements and challenging the valuation of different<\/p>\n
properties in the light of the value which was accepted by the Income Tax<\/p>\n
Department which was shown by appellant Shiva Shankar Verma in his returns<\/p>\n
filed before that department. It was stated that the valuation of the house of the<\/p>\n
appellant had been enhanced by Rs. 1,30,000\/- and further that a particular amount<\/p>\n
of Rs. 4,67,121\/- which was the balance in a particular account held by appellant<\/p>\n
Shiva Shankar Verma in a bank, had been deliberately added to enhance his assets.<\/p>\n
15.       On the above statements, the appellant Shiva Shanker Verma and his<\/p>\n
wife appellant Smt. Usha Verma prayed to the learned Authorised Officer to drop<\/p>\n
the proceedings regarding confiscation of their properties.<\/p>\n
16.       Appellant Dr. Upendra Prasad Singh,, who was opposite party no. 9 in<\/p>\n
the court below, also filed his statement of defence. He stated that he was a<\/p>\n
qualified Medical Practitioner and was also a Professor in Patna Medical College<\/p>\n
having retired as the Professor and Head of the Department of Pediatric Surgery in<\/p>\n
the year 2006. He stated that besides his salary, he also ran a clinic as S.U. Nursing<\/p>\n
Home and Infertility Research Institute, Kankarbagh, Patna and practiced till 2008<\/p>\n
and was continuing it till date he filed his written statement of defence. His private<\/p>\n
clinic where he practiced medicine was situated at Yogipur Chowk, Kankarbagh,<\/p>\n
Patna. He accounted for his income by filing return and paying income tax to the<\/p>\n
Income Tax Department and was also allotted Permanent Account Number by that<\/p>\n
department. Appellant Dr. Upendra Prasad Singh stated that he had purchased the<\/p>\n
land appertaining    to khata no.2,Survey plot No. 96 measuring 13.5 decimals<\/p>\n
situated at Alipore Phulwari after having paid full consideration amount to
\n                                                                                   11<\/span><\/p>\n
appellant Shiva Shankar Verma through a registered deed of sale dated 22.8.2007.<\/p>\n
It was stated that before registering the deed of sale, the agreement to sale was<\/p>\n
registered which was a valid and legal instrument and further that appellant Dr.<\/p>\n
Upendra Prasad Singh was entitled as by virtue of his statutory right to purchase<\/p>\n
the property as a citizen of India. He stated that he had paid Rs. 5,52,000\/- and Rs.<\/p>\n
2,58,000\/- as payment of consideration to appellant Shivashanker Verma and, as<\/p>\n
such, it could not be said that the documents were prepared so as to justifying an<\/p>\n
illegal and sham transaction. It was further stated by appellant Dr. Upendra Prasad<\/p>\n
Singh that the mutation in respect of the above noted land after its purchase by the<\/p>\n
appellant was also ordered on 3.3.2008 in his favour and he had paid the rent and<\/p>\n
obtained the rent receipts. On these statements of defence, appellant Dr. Upendra<\/p>\n
Prasad Singh prayed for dropping the rule issued against him.<\/p>\n
17.    In reply to the contention of appellant Dr. Upendra Prasad Singh the State<\/p>\n
of Bihar filed a reply controverting his claim that the agreement dated 7.3. 2007 in<\/p>\n
respect of the sale of the above noted land in between appellant Shiva Shankar<\/p>\n
Verma and Dr. Upendra Prasad Singh had been seized either from the house of<\/p>\n
appellant Shiva Shankar Verma or from his locker, rather it was stated that the<\/p>\n
same was produced in original by appellant Shiva Shankar Verma in the office of<\/p>\n
the Special Vigilance Unit on 24.2.2010 after a lapse of about 2 \u00bd months of the<\/p>\n
institution of the case. The seizure list itself shows that it was produced and then<\/p>\n
seized. The document itself showed the involvement of appellant Dr. Upendra<\/p>\n
Prasad Singh and, as such, he was made an accused as Dr. Upendra Prasad Singh,<\/p>\n
who was original opposite party no. 9, in collusion with appellant Shiva Shankar<\/p>\n
Verma had forged and fabricated the record creating false document regarding<\/p>\n
payment of consideration amount to stave off the criminal liability of appellant<\/p>\n
Shiva Shankar Verma. Besides, the transaction of appellants Shiva Shankar Verma
\n                                                                                 12<\/span><\/p>\n
and Dr. Upendra Prasad Singh was violative of Section 269 SS of the Income Tax<\/p>\n
Act and, as such, the entries in the income tax return were false and that raised<\/p>\n
sufficient reason of initiating the criminal proceedings. Besides, the agreement to<\/p>\n
sell was prepared on a non-judicial stamp which was obtained from one Dinesh<\/p>\n
Kumar Gupta, the Stamp Vendor and the register was not produced before the<\/p>\n
Vigilance Department in respect of the purchase of the paper for executing an<\/p>\n
agreement to sale which also showed that the document was illegally manufactured<\/p>\n
to escape the criminal liability. It was contended that the statement of appellant<\/p>\n
Shiva Shanker Verma regarding unsecured loan from someone to the tune of Rs.<\/p>\n
4,45,000\/- on 31.3.2007 and Rs. 17,47,000\/- on 31.3.2008 were all concocted and<\/p>\n
manufactured story to save himself from criminal liability.<\/p>\n
18.    Appellant Krishna Pal Singh, who is the brother-in-law( Sala) of appellant<\/p>\n
Shiva Shankar Verma, also filed his written statement of defence as he had been<\/p>\n
impleaded as opposite party no. 6 in the petition filed under Section13 of the Act.<\/p>\n
He stated that he had come from his native village in Uttar Prasad to Patna for<\/p>\n
prosecuting his studies under the guardianship of his brother-in-law and sister,<\/p>\n
namely, Shiva Shanakar Verma and Smt. Usha Verma and he resided with them<\/p>\n
and studied in Patna. He stated that he intended to purchase a flat in Aradhana<\/p>\n
Enclave near Jagdeo Path, Patna and had paid Rs. 70,000\/- through cheque dated<\/p>\n
22.3.2007 and entered into an agreement with the developer in that behalf. He<\/p>\n
received a letter dated 22.6.2007 from the developer and, accordingly, he had<\/p>\n
arranged rupees 8 lacs from his distant uncle, named, Suryabali Singh, resident of<\/p>\n
village Sarwan in the District of Rai Bareily and kept the same in the house of<\/p>\n
appellant Shiva Shankar Verma so that he         could make the payment to the<\/p>\n
developer of Aradhana Enclave. The above noted amount was seized by the<\/p>\n
Special Vigilance Unit during the raid of the house of appellant Shiva Shankar
\n                                                                                  13<\/span><\/p>\n
Verma. It was further mentioned that during the period he stayed in the house of<\/p>\n
appellant Shiva Shankar Verma and Smt. Usha Verma in connection with his<\/p>\n
studies, he had kept certain books and articles which had been shown seized in<\/p>\n
paragraph 13 at Serial Nos. 1 to 29 of the seizure memo which belonged to him but<\/p>\n
they had been shown as the properties of appellant Shiva Shankar Verma. On the<\/p>\n
above grounds, appellant Krishna Pal Singh prayed the rule being dropped against<\/p>\n
him.\n<\/p>\n
19.    Appellant Ram Pal Verma, appellant in Cr. Appeal No. 550 of 2011, also<\/p>\n
filed his separate show cause in which he stated that he had 9 bigha,16 viswa and 1<\/p>\n
viswansi irrigated agricultural land located at village Garha and his wife had 2<\/p>\n
bigha, 2 viswa and 10 viswansi land at the same village which had been admitted<\/p>\n
by the Special Vigilance Unit. It was stated that they used to grow paddy crops,<\/p>\n
wheat, pepermint, pulses, oil seeds and other valuable crops. He had a net income<\/p>\n
from paddy crop alone of Rs. 1,17,500. He used to get an income of Rs. 1,18,000\/-<\/p>\n
from wheat    and its straw while from the      production of pepermimt used in<\/p>\n
preparing mentha oil, he used to get Rs. 2,40,000\/-. Appellant Ram Pal Verma<\/p>\n
stated that after deducting the costs which was incurred by him, he earned total<\/p>\n
income of Rs. 4,45,000\/- per annum which was never considered by the Special<\/p>\n
Vigilance Unit which had only acted upon the report of Tehsildar which was<\/p>\n
incorrect. It was mentioned that he had inherited movable and immovable assets<\/p>\n
from his own Mausa, Nanad of Mausi and Mausi-in-law including their jewelleries.<\/p>\n
Appellant Ram Pal Verma had no faith in the banking system and, as such, he used<\/p>\n
to purchase gold since long and this fact was disclosed by him to the Investigating<\/p>\n
Officer of the case that he had given 1 K.G. of gold bars and 800 guineas to his son<\/p>\n
appellant Shiva Shankar Verma for keeping the same in safe custody. He<\/p>\n
sometimes after, executed a will dated 10.1.2007 in respect of the gold bars, but
\n                                                                                  14<\/span><\/p>\n
the prosecution deliberately concealed those facts and included the above properties<\/p>\n
in the confiscation proceedings as properties amassed from unknown sources by<\/p>\n
appellant Shiva Shankar Verma. Appellant Ram Pal Verma stated that he used to<\/p>\n
purchase gold at the rate of Rs. 20\/- per tola and all the gold ornaments which have<\/p>\n
been received from his Nani, Mausi and others have been converted into gold bars<\/p>\n
and guineas and valuation of those items was highly exaggerated by the Special<\/p>\n
Vigilance Unit. In the light of the above statements, appellant Ram Pal Verma alias<\/p>\n
Ram Pal also sought indulgence of the learned Authorised Officer to drop the rule<\/p>\n
issued against him and, as such, decline to confiscate the property.<\/p>\n
20.     Appellant Shyam Lal Singh is the father father-in-law and father<\/p>\n
respectively of appellants Shiva Shankar Verma and appellant Smt. Usha Verma.<\/p>\n
He had also been issued a notice on confiscation of a particular property. He<\/p>\n
appeared and filed his written statement of defence by stating that he has falsely<\/p>\n
been implicated and there being no specific allegation against him he was not<\/p>\n
obliged to reply to it.\n<\/p>\n
21.     Opposite party no. 8 before the court below, appellant Suman Lata Verma<\/p>\n
alias Suman Verma is the sister-in-law ( Sali) of appellant Shiva Shankar Verma. In<\/p>\n
her written statement of defence in pursuance to the show cause notice issued to her<\/p>\n
calling upon her to show cause as to why the land situated at Ramner Moiuddinpur<\/p>\n
measuring 1 biswa 10 dhoors i.e., 190 sq. meters which was in her possession<\/p>\n
should not be confiscated. The above land was purchased by appellant Smt. Usha<\/p>\n
Verma in the year 1992 after paying consideration amount of Rs. 37,247\/-.<\/p>\n
Subsequently, appellant Smt. Usha Verma gifted the property to her by a gift dated<\/p>\n
5.4.2005 which was notarized on 20.3.2006 upon which a residential house was<\/p>\n
also constructed but these facts were concealed by the Special Vigilance Unit.<\/p>\n
Appellant Sumana Lata Verma alias Suman Verma, opposite party no. 8 before the
\n                                                                                  15<\/span><\/p>\n
court below, not only claimed the property but also prayed to the learned<\/p>\n
Authorised Officer to drop the rule issued against her.\n<\/p>\n
22.    Appellant Chandra Pal Singh who is one of the appellants with appellant<\/p>\n
Shyam lal Singh in Cr. Appeal No. 551 of 2001 is the brother-in-law of appellant<\/p>\n
Shiva Shankar Verma. A notice also appears issued against him calling upon him<\/p>\n
to show cause under Section14 of the Act and he also responded to it by stating that<\/p>\n
he had falsely been implicated and he had no concern with any property seized by<\/p>\n
the Special Vigilance Unit. It was stated by him that in fact, there was no specific<\/p>\n
charge or allegation brought forward by the Special Vigilance Unit against him<\/p>\n
and, as such, he has maliciously been implicated which requires rule issued against<\/p>\n
him to be dropped and appellant Chandra Pal Singh be exonerated.<\/p>\n
23.    The learned court below thereafter proceeded to consider the individual<\/p>\n
written statements of defence and considering them in the light of the rival<\/p>\n
contentions of the parties went on to confiscate the properties which were sought to<\/p>\n
be confiscated to the State of Bihar.\n<\/p>\n
24.    Shri Rana Pratap Singh and Shri Chittaranjan Sinha, both Senior counsel<\/p>\n
appeared before me in support of the appeals. Shri Rama Kant Sharma, Senior<\/p>\n
counsel on behalf of the Vigilance Department, appeared          on behalf of the<\/p>\n
respondents in all appeals.     It was contended by the learned counsel for the<\/p>\n
appellants that the State of Bihar had filed a petition under Section 13 of the Act<\/p>\n
giving details of the documents maintained by various officials so as to supporting<\/p>\n
the case of confiscation as set up by the State of Bihar. However, no witness was<\/p>\n
produced in proof of contents of those documents and, as such, the order passed by<\/p>\n
the learned authorised Officer was contrary to the principles of justice, specially,<\/p>\n
when the order in question could divest someone of his properties. It was<\/p>\n
contended that certain documents necessary for framing the defence were also not
\n                                                                                     16<\/span><\/p>\n
supplied to the appellants and, thereby, the appellants were deeply prejudiced in<\/p>\n
setting up their defence and making statements in that behalf as per law. It was<\/p>\n
contended that the will executed by Ram Pal Verma alias Ram Pal, the father of<\/p>\n
appellant Shiva Shankar Verma in respect of gold bars, guineas, etc. was not<\/p>\n
supplied to appellant Shiva Shankar Verma on unfounded grounds that the same<\/p>\n
was produced by him and, as such, a copy thereof could not be supplied to him. It<\/p>\n
was contended that in order to assessing the value of the property properly, the<\/p>\n
income tax returns were the valid basic papers which were not considered and those<\/p>\n
were already containing proper and detailed explanations. It was contended by<\/p>\n
reference to Section 13(2) of the Act that the affidavits, necessary to be filed has to<\/p>\n
be more than one, because the legislature was attempting to direct all relevant<\/p>\n
“evidence” with source and nature thereof to be placed before lthe Authorised<\/p>\n
Officer so that even in absence of ” evidence” , as we know the term to mean, the<\/p>\n
affidavits containing all relevant informations could be treated as evidence.<\/p>\n
Reference was also made by learned counsel to rule 14 of the Bihar Special Courts<\/p>\n
Rules, 2010, which requires the application to be filed under Section 13 of the Act<\/p>\n
to contain certain particular details and sub-rule(1)(g) of Rule 14 of the Act<\/p>\n
specifically requires the name and detailed address of persons whose affidavits<\/p>\n
were to be furnished in support of the case. But, only one affidavit, that too very<\/p>\n
cryptic, in support of the contents of the application was filed which was a<\/p>\n
complete non-compliance with the provision of Sections 13 of the Act and Rule 14<\/p>\n
of the relevant Rules. It was, as such, contended that the whole order of<\/p>\n
confiscation passed by the court below was in derogation not only of the material<\/p>\n
evidence but also of the requirement of the procedure set down by the provision of<\/p>\n
the Act including the rules framed thereunder.\n<\/p>\n
25.      Learned Special Public Prosecutor appearing for the State and the
\n                                                                                   17<\/span><\/p>\n
Vigilance Department was submitting that the appellant Shiva Shankar Verma did<\/p>\n
not disclose his assets of possessing gold bars, guineas, etc., which now he states<\/p>\n
being entrusted to him, ever in any return filed by him before the income tax<\/p>\n
authorities and now so as to covering up his misdeeds he was making statement in<\/p>\n
his show cause that the disclosures were made before the Income Tax Officer.<\/p>\n
Appellant Shyam Lal Singh was averring in his written statement that he had gifted<\/p>\n
cash to appellant Smt. Usha Verma which gift deed was forged, fabricated and<\/p>\n
ante-dated. Opposite Paryt No. 8 Krishna Pal Singh has also attempted to explain<\/p>\n
the same, but the same is contrary to the relevant provision of the Income Tax Act<\/p>\n
as was held to be so by the Supreme Court in (2002) 6 S.C.C. 259 Asstt.<\/p>\n
Director of Inspection Investigation Vs. A.B. Shanthi. It was contended that it is<\/p>\n
clear   that appellant Shiva Shnakar Verma and his wife Smt. Usha Verma had<\/p>\n
earned properties disproportionate to their \u201eknown sources of income\u201f which term<\/p>\n
has been defined as a \u201esource of prudence\u201f as may be found from some decision of<\/p>\n
the Supreme Curt. It was contended that any irregularity not going to the root of<\/p>\n
the matter and not causing any prejudice to the appellants, has to be over looked.<\/p>\n
Contention also was that special Rules have been set down by the provision of the<\/p>\n
Act and the Rules framed thereunder and the proceedings under the Act have to be<\/p>\n
carried out as per those procedures. The general rules of evidence or general<\/p>\n
principles of criminal jurisprudence have no application to the special nature of the<\/p>\n
proceedings and the order which was passed by the learned        Authorised Officer.<\/p>\n
As such, the contentions on non-application of the rules of evidence or principles of<\/p>\n
Criminal Jurisprudence are not tenable.\n<\/p>\n
26.     Corruption is a phenomenon which could not be confined to any particular<\/p>\n
period of time; it is known to exist from time immemorial, maybe that it had<\/p>\n
existed in different forms due to the mode of indulgence into it by persons being
\n                                                                                    18<\/span><\/p>\n
various. So far as the recent history of origin of corruption and attempt of tackling<\/p>\n
it is concerned, it was not as enormous as we find today prior to the Second World<\/p>\n
War. In fact, our attempt through legislation for tackling the menace existing at<\/p>\n
different places took the legislative shape during the Second World War. It was<\/p>\n
detected that there was corruption in ferrying the war supplies during World War II<\/p>\n
by the railways and, as such, an executive order was promulgated sometimes in<\/p>\n
1941 establishing Special Police Establishment with a Deputy Inspector General-<\/p>\n
rank- Police Officer as its head to investigate instances of corruption in war and<\/p>\n
supply departments. The activities of the Special Police Establishment were<\/p>\n
extended to corruption in railways as they were deeply found in corruption as<\/p>\n
regards the war supplies. The Govt. of India promulgated an Ordinance in 1942<\/p>\n
creating Special Police Force vesting in it the powers to investigate the instances of<\/p>\n
corruption in Govt. departments throughout India. Another Ordinance was<\/p>\n
promulgated in 1943, which was to expire on 30th September, 1946. Therefore, in<\/p>\n
the same year a full-fledged Act known as Delhi Special Police Establishment Act<\/p>\n
was enacted. Corruption at its initial stage was confined mainly to the bureaucracy<\/p>\n
which had the opportunity of dealing with a variety of such largesse in the form of<\/p>\n
contracts, licenses and grants. Even after the War and efforts as above, corruption<\/p>\n
continued amongst the Govt. servants. War-supply-surpluses were required to be<\/p>\n
disposed of by them. A shortage of goods during the war necessitated imposition of<\/p>\n
control. Some schemes were formulated which involved the disbursement of huge<\/p>\n
sums of money which lay in the control of the public servants giving them a wide<\/p>\n
discretion in spending those grants meant to carry out reconstruction works after<\/p>\n
the War. These aspects of public functions lured them to glitter of wealth. These<\/p>\n
were the reasons that Prevention of Corruption Act, 1947 was enacted by which the<\/p>\n
provisions of Sections 161 to 165A of the Indian Penal Code were deleted. Higher
\n                                                                                   19<\/span><\/p>\n
sentences were prescribed and special forum both of trial and investigation was<\/p>\n
prescribed.\n<\/p>\n
27.     If we could go back further into the history, we could find that the Central<\/p>\n
Bureau of Investigation was created to investigate corruption cases by virtue of<\/p>\n
being vested with the powers to investigate the cases as per Sections 5 and 6 of the<\/p>\n
Delhi Special Police Establishment Act. With democracy being established and<\/p>\n
political ambitions and    conflicting political or other interests getting a rise,<\/p>\n
instances of commission of serious offences, like murder or even kidnapping, etc.,<\/p>\n
surfaced, which had some political overtures. Some of the offences were found<\/p>\n
committed by professional gang of criminals making it extremely difficult for the<\/p>\n
general police force of a State to investigate such complex offences. In the above<\/p>\n
background, the provision was made that on proposals being submitted by any<\/p>\n
State Government and Central government having accepted such proposals,<\/p>\n
investigation of such complex cases might be made by the Central Bureau of<\/p>\n
Investigation. This is how the offences other than of corruption were also added up<\/p>\n
into the kitty of the Central Bureau of Investigation for its investigation ( Please<\/p>\n
see Lalan Prasad Singh Vs. Union of India reported in 2011(1) B.B.C.J. 41).<\/p>\n
28.    Establishment of democracy and its constitutional obligations of fulfilling<\/p>\n
the aspirations of the people which are listed in the Constitution of India as per<\/p>\n
Chapter on the Directive Principles of the State Policy, developmental activities<\/p>\n
and other socially beneficial activities were undertaken in a massive way both by<\/p>\n
the Union Government as also by different State Governments. All powers for<\/p>\n
charting out ways and means of planning such socially beneficial schemes and to<\/p>\n
execute them usually lied and still continue to lie in the hands of bureaucracy. Huge<\/p>\n
public money was pumped into the implementation of such socially beneficial<\/p>\n
schemes, as just noted above. The lust both for glittering gold and securing
\n                                                                                      20<\/span><\/p>\n
luxurious life allured the public servants, who were mainly bureaucrats and<\/p>\n
politicians, either to ignore or to breach rules of conduct of official business as also<\/p>\n
the norms of their own conduct as public servants so as to indulging into<\/p>\n
misappropriation of public fund and corruption in grant of contracts or in execution<\/p>\n
of the schemes. One need not site examples. One could find such involvements,<\/p>\n
both in past as also in the present day.\n<\/p>\n
29.        The Parliament, as such, amended Prevention of Corruption Act, 1947<\/p>\n
by incorporating some necessary amendments in the above noted Act by Act No.<\/p>\n
49 of 1988. The definition of \u201ePublic Servant\u201f which was earlier contained in the<\/p>\n
relevant provision of the Prevention of Corruption Act, 1947, was redrafted so as to<\/p>\n
widening the scope and ambit of its meaning and it was ensured that even those<\/p>\n
who could not be holding any public office but were getting any public assistance<\/p>\n
either from the Central Government or the State Government could be deemed to<\/p>\n
be a public servant. A very simple glance of the definition of the term \u201ePublic<\/p>\n
servant\u201f contained in Section 2 (c ) of the Prevention of Corruption Act, 1988 may<\/p>\n
testify as to how the definition was broadened to identify the public servant not<\/p>\n
only by the post one holds, but also by the duties to be discharged. The procedure<\/p>\n
for trial of cases by applying the Code of Criminal Procedure, 1973 was also varied<\/p>\n
as may appear from Section 22 of the At of 1988. The Criminal Law (Amendment)<\/p>\n
Ordinance, 1944 was also amended by Section 29 of the Prevention of Corruption<\/p>\n
Act, 1988. The Criminal Law (Amendment) Ordinance, 1944 is the result of the<\/p>\n
legislative attempts on forfeiture and confiscation of any property amassed by a<\/p>\n
public servant either in his name or in anybody\u201fs name by committing the offence<\/p>\n
under the Prevention of Corruption Act. The provisions are wide and effective so<\/p>\n
much so as may appear from Sections 10,11,12 and 13of the Ordinance that the<\/p>\n
confiscated property may not revert back to such a public servant under some
\n                                                                                                                                 21<\/span><\/p>\n
                 eventuality. The above noted Ordinance was applicable only to a few offences<\/p>\n
                 which were added into the Schedule of the Ordinance and that was not fully<\/p>\n
                 applicable to any person who was being prosecuted for committing an offence<\/p>\n
                 under the Prevention of Corruption Act, 1988. As such, by amending the Schedule<\/p>\n
                 noted above, offences under Prevention of Corruption Act, 1988 were also added<\/p>\n
                 up to it.\n<\/p>\n
                 30.      However, the amendments incorporated in 1988 into the Prevention of<\/p>\n
                 Corruption Act did not altogether change the trial procedure which was almost the<\/p>\n
                 same as could be applicable to trial of a warrant case and that could be one of the<\/p>\n
                 reasons that the pendency of corruption cases remained a bit on the higher side. It<\/p>\n
                 could be appreciated if the following table is considered:\n<\/p>\n
   Name     of   Total pending       Year wise particulars of pending cases under Prevention of Corruption Act, 1988.\n<\/p>\n
Judgeship        cases in respect\n                 of     offences\n                 under\n                 Prevention of\n                 Corruption\n                 Act, 1988\n                                     2010   2009    2008    2007    2006    2005    2004    2003    2002    2001\n                                                                                                        Before200       2 000\nMuzaffarpur      1352                 92 102 231 102 48 54 26 18                  17    7       9       646\nPatna            1570                 109 145 128 164 139 59 52 44                41    26      38      625\n<\/pre>\n
                 31.                It may be found from the above table that Special Courts for trial of<\/p>\n
                 corruption cases have been established only in two Judgeships out of a total number<\/p>\n
                 of thirty Judgeships and those are, Patna and Muzaffarpur and the total number of<\/p>\n
                 2922 cases were pending up to December, 2010, which are to be tried by the<\/p>\n
                 Special Courts created for trying the offences under the Prevention of Corruption<\/p>\n
                 Act, 1988, ranging from 2000 to 2010 which figure included 646 and 625 such<\/p>\n
                 cases of years prior to 2000 which were pending in different courts of Bihar. There<\/p>\n
                 are several instances which could be had from the Registry of this Court, indicating<\/p>\n
                 that the witnesses in spite of appearing before the Special Courts were not<\/p>\n
                 examined and they had to go back to their respective places of posting. One hardly
\n                                                                                     22<\/span><\/p>\n
requires to point out that the witnesses cited in the charge sheet by the<\/p>\n
investigating agency in such cases are all public servants who are posted in<\/p>\n
different corners of the State and they go back without deposing in courts.. There<\/p>\n
was no timeframe anywhere in the above Act for trial of the cases. Corruption is a<\/p>\n
prime problem of our democracy which is eating up its fabric and it is destroying<\/p>\n
the foundation upon which the edifice of our democracy was fabricated. A handful<\/p>\n
of persons, who may be politicians or bureaucrats, are eating up the plan money<\/p>\n
which are to be invested in execution of any developmental or socially beneficial<\/p>\n
schemes. As such, even the serious attempts on tackling the problem by framing<\/p>\n
drastic legislation could not be effective. Even the provision of forfeiture of the<\/p>\n
property by attaching it under the Ordinance of 1944 was tardy as the petition<\/p>\n
which was to be filed either by the Central Government or by the State Government<\/p>\n
under the Ordinance was to be tried by an Officer of the rank of District Judge as a<\/p>\n
suit and he was required to take evidence both in support as also in the rebuttal of<\/p>\n
the contents of the petition.\n<\/p>\n
32.     The above are the reasons which appear prompting the Bihar Legislature to<\/p>\n
frame the Bihar Special Courts Act, 2009. While enacting the above legislation,<\/p>\n
the Legislature perceived that \u201ecorruption was prevailing amongst persons holding<\/p>\n
public office who were the public servants within the meaning of Section 2(c ) of<\/p>\n
the Prevention of Corruption Act\u201f. It was also perceived that such public servants<\/p>\n
had \u201eaccumulated vast property, disproportionate to their known sources of income<\/p>\n
by resorting to corrupt means\u201f and as such \u201eit was obligatory for the State to<\/p>\n
prosecute such persons involved in such corrupt practices and to confiscate their<\/p>\n
ill-gotten assets\u201f. As I have just pointed out, the Legislature also felt that existing<\/p>\n
courts of Special Judges may not be reasonably expected to bring the trials of such<\/p>\n
cases to speedy termination and further, it was imperative for the efficient
\n                                                                                     23<\/span><\/p>\n
functioning of the parliamentary democracy and the institutions created by or under<\/p>\n
the Constitution of India that the aforesaid cases be tried with utmost expedition.<\/p>\n
With the above motto, the legislature established Special Courts by enacting the<\/p>\n
Bihar Special Courts Act, 2009 which was to be presided over by persons who<\/p>\n
were or had been Sessions Judges or Additional Sessions Judges. Attempt was<\/p>\n
clearly made to avoid delay in final determination of the charges brought against<\/p>\n
persons who were to be tried for committing the offence under the Prevention of<\/p>\n
Corruption Act, 1988. But care was also taken to eliminate any possibility of<\/p>\n
interference with the right to fair trial of such an accused. Not only that, provisions<\/p>\n
were also framed to confiscate the properties of such public servants if they had<\/p>\n
been found to have amassed properties either in his name or        in others name by<\/p>\n
committing the offence under the Prevention of Corruption Act.<\/p>\n
33.          On perusal of the Act one could find that the Act is spread over IV<\/p>\n
Chapters. Chapter I relates to definition of different terms; whereas Chapter II<\/p>\n
relates to    establishment of Special Courts and          other matters relating to<\/p>\n
cognizance of cases by the Special Courts, declaration of cases to be dealt with<\/p>\n
under this Act with the effect of such declaration besides the jurisdiction of the<\/p>\n
Special Courts to try cases under the Prevention of Corruption Act. Section 8 of the<\/p>\n
Act relates to procedure and powers of Special Courts and it has provided that the<\/p>\n
procedure of trial shall be that of a case which is known as warrant case and which<\/p>\n
is tried by a Magistrate. But, the application of Code of Criminal Procedure and<\/p>\n
those of the Prevention of Corruption Act, 1988 were restricted only when there<\/p>\n
was no provision in the Act in any particular behalf. Rule making power has been<\/p>\n
vested into the State Government by Section 24 of the Act and in exercise of that<\/p>\n
power, the Bihar Special Court Rules, 2010( \u201eRules\u201f in short) has been framed and<\/p>\n
on perusal of Rule 12 of the Rules it is indicated that the trial has to be in summary
\n                                                                                     24<\/span><\/p>\n
manner and it is further indicated by the above said Section as to how the<\/p>\n
proceeding which is pending should be carried out by the Special Courts. Rule 15<\/p>\n
of the Rules makes the Indian Evidence Act applicable mutatis mutandis to the trial<\/p>\n
conducted by the Special Courts and as may appear from Section 11 of the Act, the<\/p>\n
Special Court is completely precluded from adjourning any trial for any purpose<\/p>\n
unless such adjournment, in the opinion of that court, is necessary in the interest of<\/p>\n
justice and for reasons to be recorded in writing. Every Special Court has, thus not<\/p>\n
only to assign reasons for adjourning the hearing of a case, but it has also to ensure<\/p>\n
that the adjournment granted has to be in the interest of justice.<\/p>\n
34.       How could a reason exist to justify the adjournment of the hearing in the<\/p>\n
interest of justice?   It could be very difficult to catalogue such reasons for<\/p>\n
adjournments justifying it in the interest of justice. But, broadly speaking, if the<\/p>\n
non-adjournment is likely to prejudicially affect the trial or the interest of the<\/p>\n
parties or a particular party or it was likely to hamper the right of the accused to<\/p>\n
fair trial or if the prosecution or defence appears suffering from any handicap<\/p>\n
beyond its control, in spite of all efforts made by it on production of evidence that<\/p>\n
it could not produce the same due to any incident or happening again beyond the<\/p>\n
control of the parties making it imperative to adjourn the hearing of the case then,<\/p>\n
these or any of them could be some of the reasons in the interest of justice. Any<\/p>\n
willful act or any designed move to stall the trial or to delay it by a party has to be<\/p>\n
frowned at by the Court. It has always to look to the statutory time frame for<\/p>\n
concluding the trial and must consider every attempt on seeking adjournment with<\/p>\n
lawful disdain and in appropriate cases with heavy hand.\n<\/p>\n
35.          It is further indicted by Sub-section(2) to Section 11 of the Act that<\/p>\n
Special Court has to make all endeavours to dispose of the trial of the case within a<\/p>\n
period of one year from the date of its institution or transfer, as the case may be.
\n                                                                                   25<\/span><\/p>\n
Thus, there is clear departure from the general procedures regarding the trial of a<\/p>\n
warrant case as contained in the Code of Criminal Procedure as the same does not<\/p>\n
bind any court with any particular time frame in trying warrant cases. At the same<\/p>\n
time the procedure for trial of warrant case could not be that of a summary trial. In<\/p>\n
my considered view, the summary procedure of trial as is envisaged by Rule 12<\/p>\n
could not be for a period longer than one year as indicated by Section -11(2 )of the<\/p>\n
Act, else, the provisions of Section 11 and Rule 12 may run counter to each other<\/p>\n
and make the time frame impracticable. Further, the conflict which appears in<\/p>\n
between Section 11 of the Act and rule-12 of the Rules may be reconciled by<\/p>\n
pointing out that the legislature had recognized the delay which has beset the trials<\/p>\n
of corruption cases, as may appear from the Preamble to the Act and while<\/p>\n
adopting the procedure of Chapter XIX of the Cr. P.C. for trial of such cases, the<\/p>\n
legislature was indeed stipulating the summary procedure by confining the trial of<\/p>\n
such cases within the time frame of one year as per Section 11(2) of the Act. In<\/p>\n
fact, the conflicting situation created by Section 11(2) and Rule 12 could best be<\/p>\n
resolved by pointing out that while the procedure has always to be that for a<\/p>\n
warrant trial, it has to be summary or abridged in point of time by being attempted<\/p>\n
to be concluded in a year as per Section 11(2) of the Act. In case the trial spills<\/p>\n
over a period exceeding one year, it could not have any adverse impact on it, nor it<\/p>\n
could create a right in any party to escape the trial. But, in such an eventuality<\/p>\n
sturdy reasons have to be assigned by the trial Judge. Similarly, de novo trial has<\/p>\n
been done away with by Section 12 of the Act and the appellate forum has been<\/p>\n
prescribed by Section 9 of the said Act. These are the provisions in respect of the<\/p>\n
trial of cases which, as I have just pointed out, appear in Chapter II.<\/p>\n
36.      Chapter III of the Act is headed “Confiscation of Property.” The Chapter<\/p>\n
contains the procedures for adjudicating the confiscation proceedings in respect of
\n                                                                                    26<\/span><\/p>\n
properties amassed by the commission of the offence as per definition of the term<\/p>\n
in Section 2(e) of the Act. Rules 11,12 and 14 are the relevant rules in the above<\/p>\n
behalf. It may appear from perusal of Section 13 of the Act that the State<\/p>\n
Government may authorise the Public Prosecutor for making an application before<\/p>\n
the Authorised Officer for confiscation of money and other property of any person<\/p>\n
who had held or is holding public office and is or has been a public servant, if<\/p>\n
there was \u201eprima facie evidence\u201f giving rise to \u201ereasons to believe\u201f to the State<\/p>\n
Government that such a public servant has committed the offence. Sub-section(2)<\/p>\n
to Section 13 directs that an application under Section((1) has to be accompanied<\/p>\n
by one or more affidavits stating the ground on which the belief that such person<\/p>\n
has committed the offence is founded, the amount of money and estimated value<\/p>\n
of other property believed to have been procured by means of commission of the<\/p>\n
offence. The application shall also contain any other information available as to the<\/p>\n
location for the time being of any such money and other property and shall<\/p>\n
necessarily give other informations relevant to the context. On receipt of the<\/p>\n
application under Section 13, which has to be as per Rule 14 and Form No. III<\/p>\n
appended at the foot of the Rules, the Authorised Officer has to issue a notice to the<\/p>\n
person in respect of whom the application has been made calling upon him to<\/p>\n
indicate, within a maximum period of thirty days,        the source of his income,<\/p>\n
earnings or assets, out of which or by means of which he had acquired such money<\/p>\n
or property, the evidence on which he relies and other relevant information and<\/p>\n
particulars and to show cause as to why all or any of such money or property or<\/p>\n
both, be not declared to have been acquired by means of commission of the<\/p>\n
offence and be confiscated to the State Government. If the property is found to be<\/p>\n
held by a person on behalf of a public servant in his name, then a notice has also to<\/p>\n
be issued against such other person not being the public servant, as may appear
\n                                                                                    27<\/span><\/p>\n
from Section14(2) of the Act.\n<\/p>\n
37.      Sub-section(3) to Section 14 of the Act reads as under:\n<\/p>\n
             ” 14(3) Notwithstanding anything contained in sub-section(1) , the
\n       evidence, information and particulars brought on record before the
\n       authorized officer, by the person affected or the State Government shall be
\n       open to be rebutted in the trial before the Special Court provided that such
\n       rebuttal shall be confined to the trial for determination and adjudication of
\n       guilt of the offender by the Special Court under this Act.”\n<\/p><\/blockquote>\n
On perusal of the above section what may appear is that the evidence or<\/p>\n
information or particulars in respect of the properties sought to be confiscated<\/p>\n
produced either by the State Government or by the person who has been served<\/p>\n
with a notice under Sections 14(1) and (2) are the only materials to be considered<\/p>\n
and no further evidence in rebuttal of any of the          evidence, information or<\/p>\n
particulars is to be allowed for considering the merits of the application filed under<\/p>\n
Section 13 of the Act. Whatever rebuttal could be given, could be allowed only at<\/p>\n
the stage of trial and that too has to be confined only to the determination and<\/p>\n
adjudication of the guilt of the offender by the Special Court.<\/p>\n
38.       This prohibition appears applicable not only to the evidence or material<\/p>\n
on which the application has been filed, but also to the reply and the connected<\/p>\n
evidence produced in support thereof by the public servant. The prohibition as<\/p>\n
noted is confined to the proceedings arising out of the filing of an application under<\/p>\n
Section 13 of the Act and that too only before the Authorized Officer. It is never<\/p>\n
applicable to a trial to be conducted or being conducted before the Special Court.<\/p>\n
One has always to remember that trial has to be before the Special Court as per<\/p>\n
provisions of Chapter-II of the Act, and the proceedings under Chapter-III has to be<\/p>\n
before the Authorized Officers and the two jurisdictions and their nature are quite<\/p>\n
different from each other. The two fora have distinct and separate judicial identity<\/p>\n
with varied functions guided by different procedures; one has to try the accusation
\n                                                                                   28<\/span><\/p>\n
of commission of the \u201eoffence\u201f as defined by Section 2(e) of the Act, while the<\/p>\n
other, that\u201fs the Authorised Offier, has to adjudicate the proceeding arising out of<\/p>\n
the application under Section13 under the special procedures of Chapter-III of the<\/p>\n
Act.\n<\/p>\n
39.    Thus, the consideration of evidence\/materials relevant for the adjudication of<\/p>\n
the proceedings of confiscation in respect of the properties gets confined to the<\/p>\n
evidence and materials placed through the application and those to be placed or<\/p>\n
already placed through the reply to the notice to show cause by a public servant or<\/p>\n
any other person who has been called upon in that behalf. No evidence in rebuttal<\/p>\n
of the statements and supporting evidence or materials is permitted by Section<\/p>\n
14(3) of the Act and, as may appear, the adjudication of the application under<\/p>\n
Section 13 has to be made on materials\/evidence, etc. as indicated by Section 14(1)<\/p>\n
of the Act. There is one exception and that too appears not permitting rebuttal<\/p>\n
evidence to be adduced by any party to the proceedings. In case the valuation of<\/p>\n
properties as proposed by the State Government is contested by the delinquent<\/p>\n
public servant, in that case the Authorised Officer may take assistance of such<\/p>\n
State Government agency or Central Government agency or any other Officer or<\/p>\n
person technically qualified to give his opinion on such a matter, as he may deem<\/p>\n
fit and proper. In such a case, the report or statements of such persons as are<\/p>\n
indicated by Rule-11(g) may be considered in the light of the relevant provisions of<\/p>\n
the Indian Evidence Act, else, there is no application of the Indian Evidence Act to<\/p>\n
confiscation proceedings. The rationale behind the exclusion of rules of evidence in<\/p>\n
such proceedings, in my view, is that in cases of the present category, the petition<\/p>\n
under Section 13 of the Act has necessarily to be based on facts arising out of the<\/p>\n
documents or material evidence which may be had from the possession of the<\/p>\n
delinquent public servant on account of the seizure of the same by the investigating
\n                                                                                   29<\/span><\/p>\n
agency or due to the production of them by the Officer himself. Moreover, it has to<\/p>\n
be merely a “proceedings” under the Act and not a trial. In fact, the Criminal Law(<\/p>\n
Amendment) Ordinance, 1944 was also not contemplating it as \u201e trial\u201f of a suit,<\/p>\n
rather it was mere \u201einvestigation.\u201f and in that case the rebuttal evidence to be led<\/p>\n
could simply create anomalous and unjust situation.\n<\/p>\n
40.       After having considered the contents of the application and those of the<\/p>\n
show cause, if any, submitted or filed in response to the notice issued under Section<\/p>\n
14 of the Act and considering the material which may be produced before him, the<\/p>\n
Authorised Officer has to give a reasonable opportunity of being heard and       has<\/p>\n
to record the finding whether or not any money or property has been acquired<\/p>\n
illegally as appears directed by Section 15 of the Act. In case the Authorised<\/p>\n
Officer is satisfied that any part of the money or property or both was acquired by<\/p>\n
commission of the offence and the other part of it was not by that manner by the<\/p>\n
delinquent public servant, then he has to direct that the money or property or both<\/p>\n
so amassed by the public servant shall stand confiscated to the State of Bihar free<\/p>\n
from all encumbrances. However, the proviso appended to sub-section(3) of<\/p>\n
Section 15 of the Act indicates that if the delinquent public servant deposited the<\/p>\n
market price of the property with the Authorised Officer, the property shall not be<\/p>\n
confiscated. In case of any Company being confiscated, it may be deemed that the<\/p>\n
Company stands transferred to the State Government. As may appear from sub-<\/p>\n
section(5) of Section 15 of the Act, the proceeding for confiscation under Chapter<\/p>\n
II has to be concluded within a maximum period of six months to be reckoned<\/p>\n
from the date of service of notice under Section 14(1) of the Act. Subject to the<\/p>\n
order in appeal, any order of confiscation shall be final and shall not be questioned<\/p>\n
in any court of law as may appear from the provision of Section 15 of the Act.<\/p>\n
41.      Section 16 of the Act declares any transfer of money or property after
\n                                                                                      30<\/span><\/p>\n
issuance of notice under Section 14 of the Act as null and void and in case of an<\/p>\n
order under Section 15 of the Act such property or money              shall also stand<\/p>\n
confiscated to the State of Bihar. The power to take possession is vested in the<\/p>\n
State Government by virtue of Section 18 of the Act and the appellate forum has<\/p>\n
been prescribed under Section 17 of the Act. That provision also prescribes the<\/p>\n
maximum period of hearing and disposal of the appeal by the High Court within six<\/p>\n
months from the date of filing of the appeal as may appear from Section 17(3) of<\/p>\n
the Act.\n<\/p>\n
42.         Rules framed by the State Government by exercising its power under<\/p>\n
Section 24 of the Act are also relevant for the present purpose The Authorised<\/p>\n
Officer has to be nominated by the State Government in consultation with the High<\/p>\n
Court and he has necessarily to be a member of the . Bihar Superior Judicial<\/p>\n
Service( Senior Branch), who is or has been a Sessions Judge or an Additional<\/p>\n
Sessions Judge. He has also been declared as a public servant as per Rule 10 of<\/p>\n
the Rules and he has, while considering the application under Section 13 of the Act<\/p>\n
read with Rule 14 of the Rules, to follow summary procedure. On a glance of<\/p>\n
Rule 11 one could find that different timeframes have been set down for conducting<\/p>\n
the confiscation proceedings. The delinquent public servant has to appear to file his<\/p>\n
statement in defence within thirty days in the first instance, further period of fifteen<\/p>\n
days may be given to him in the maximum at the second instance fo presenting his<\/p>\n
statement of defence before the Authorised Officer. In case the public servant does<\/p>\n
not file his statement of defence within the prescribed period which could be forty<\/p>\n
five days in maximum by virtue of Rules 11(b) and (c), the Authorised Officer may<\/p>\n
pass an appropriate order and thus, conclude the proceeding. If the public servant<\/p>\n
files his statement of defence, the Authorised Officer has to hand over a copy of the<\/p>\n
same to the Public Prosecutor and he may also reply to the contents thereof but
\n                                                                                    31<\/span><\/p>\n
not beyond the period of thirty days given to him in two installments as may appear<\/p>\n
from Rule 11( e) and (f) of the Rules. If the public servant contests the valuation of<\/p>\n
the property, in that case, Rule (g) empowers the Authorised Officer to seek<\/p>\n
assistance of State Government agency or Central Government agency or any other<\/p>\n
Officer or technically qualified person in reconciling the contest and thereafter he<\/p>\n
has to consider the statement of defence of the public servant, reply of the Public<\/p>\n
Prosecutor and report of the expert, if any, for adjudicating the proceeding of<\/p>\n
confiscation. But, at any rate and by all means, the proceeding, has to be concluded<\/p>\n
from the date of service of notice within the period of six months. The Authorised<\/p>\n
Officer, thereafter, has to proceed to confiscate the property in accordance with<\/p>\n
section 15 of the Act.\n<\/p>\n
43.        The above are the relevant provisions concerning the adjudication by<\/p>\n
the Authorised Officer of an application presented before him by the Public<\/p>\n
Prosecutor at the request of the State Government. I did have a proper glance of<\/p>\n
them so that some of the issues raised by the learned counsel for the appellants<\/p>\n
could properly and adequately be scrutinized and thrashed, specially, in respect of<\/p>\n
application of the rules of Evidence Act to such proceedings. At the same time, I<\/p>\n
deem it necessary to consider the scope and ambit of the provisions of Sections 13<\/p>\n
and 14 of the Act and contextually the relevant Rules, which were the subject<\/p>\n
matter of submissions of the learned counsel for the appellants, before I took up the<\/p>\n
factual aspects of the appeal for my scrutiny.\n<\/p>\n
44.           Section 13 of the Act states that the State Government should have ”<\/p>\n
reasons to believe” on the basis of ” prima facie evidence” that any public servant,<\/p>\n
present or past, had committed the offence and thereby had amassed money or<\/p>\n
property or both either in his name or in any others\u201f name. ” Offence” means, as<\/p>\n
per Section 2(e) of the Act, an offence of criminal misconduct which attracts
\n                                                                                  32<\/span><\/p>\n
application of Section13(1)(e) of the Act( that\u201fs the Prevention of Corruption Act,<\/p>\n
1985), either independently or in combination with any other provision of the Act<\/p>\n
or any of the provisions of Indian Penal Code. Thus, the primary question could be<\/p>\n
as to what maybe the “prima facie evidence” indicating to the State Government<\/p>\n
the existence of \u201ereasons to believe\u201f regarding the commission of the \u201eoffence\u201f by a<\/p>\n
public servant, either serving or past, so as to ordering the filing of a proper<\/p>\n
application under Section 13 of the Act. Neither the Code of Criminal Procedure<\/p>\n
nor the Prevention of Corruption Act and not even the Evidence Act has defined<\/p>\n
the term \u201e prima facie evidence\u201f. In fact, the judgments of the Supreme Court or of<\/p>\n
this Court do also not exactly define ” prima facie evidence”. However, there are a<\/p>\n
few decisions of the Supreme Court indicating as to what could be the meaning of ”<\/p>\n
prima facie case”. One such decision was rendered by the Supreme Court in the<\/p>\n
Case of The Management of the Bangalore Woollen Cotton and Silk Mills, Co.,<\/p>\n
Ltd. Vs. B.Dassappa reported in AIR 1960 S C 1352. In that case the scope and<\/p>\n
ambit of Section 33 of the Industrial Disputes Act, 1947 was being considered for<\/p>\n
finding out the existence of “prima facie case.” After considering the facts of the<\/p>\n
case, the Apex Court happened to consider the existence of “prima facie case” so as<\/p>\n
to justifying termination of the services of the employee. Their Lordships were<\/p>\n
placing reliance upon their earlier decision in Martin Burn Ltd. Vs. R.N.<\/p>\n
Banerjee reported in AIR 1958 S.C.79 and was extracting the observation of the<\/p>\n
Court appearing at page 85 of the report in Martin Burtn. I am tempted to extract<\/p>\n
the relevant part of paragraph 9 of the decision reported in AIR 1960 S.C 1352<\/p>\n
which is as under:\n<\/p>\n
                ” The Labour Appellate Tribunal had to determine on these
\n                materials whether a prima facie case had been made out by the
\n                applicant for the termination of the respondent\u201fs service. A prima
\n                facie case does not mean a case proved to the hilt, but a case
\n                which can be said to be established if the evidence which is led in
\n                                                                                    33<\/span><\/p>\n
                 support of the same were believed. While determining whether a
\n                 prima facie case had been made out, the relevant consideration is
\n                 whether on the evidence led it was possible to arrive at the
\n                 conclusion in question and not whether that was the only
\n                 conclusion which could be arrived at on that evidence.”\n<\/p><\/blockquote>\n
 Thus, what may follow from the above observations of the Apex Court while<\/p>\n
propounding the meaning of \u201eprima facie case\u201f is that if the evidence which was led<\/p>\n
in support of the same was not such as is required for proving a case to the hilt, but<\/p>\n
if it could be such as to making the particular proposition also probable, then that<\/p>\n
evidence could be said to be prima facie evidence. Prima facie evidence may not be<\/p>\n
that evidence, in other words, which establishes a proposition or answers a question<\/p>\n
of fact beyond the shadow of all reasonable doubts, rather, simply raises a strong<\/p>\n
probability, which may be rebutted in due course, which convinces the mind of a<\/p>\n
reasonable person about the probability of existence of a thing or a fact, if no<\/p>\n
rebuttal to that proposition of facts is made. It is the evidence different from that<\/p>\n
which has to establish a fact or proposition to the hilt or beyond shadow of doubt.<\/p>\n
Thus, the “prima facie evidence” which is required for constituting the “reasons to<\/p>\n
believe” has never to be such as could require the application of rules of evidence<\/p>\n
contained in the Indian Evidence Act for acting upon it, rather could be mere facts<\/p>\n
alleged or appearing from the admitted or acceptable documents which could raise<\/p>\n
a probability making some one to believe the existence of such facts or proposition<\/p>\n
of facts as regards an indictment or accusation of any other sorts.<\/p>\n
45.     Thus, what I conclude as regards the term \u201eprima facie evidence\u201f is that if<\/p>\n
the evidence, left un-rebutted, probabilises the indictment or accusation or<\/p>\n
proposition made or asserted through a set of facts, then it is prima facie evidence.<\/p>\n
This appears more reasonable a view to be taken in the present context as the<\/p>\n
\u201eprima facie evidence\u201f to generate the \u201ereasons to believe\u201f a its appears in the same<\/p>\n
section 13, is further qualified by the condition which appears in Section 14(3) of
\n                                                                                   34<\/span><\/p>\n
the Act which does not permit receiving or adducing any rebuttal evidence as<\/p>\n
regards adjudication of the application to be filed or already filed under Section 13<\/p>\n
of the Act. The rebuttal evidence is permissible only on indictment or accusation of<\/p>\n
committing the offence under the Prevention of Corruption Act         and has to be<\/p>\n
tested during the trial by taking evidence as is permitted to be taken by Rule 15 of<\/p>\n
the rules framed under the Act. Thus, what appears to me is that the Authorised<\/p>\n
Officer cannot go beyond the evidence\/materials which could be placed before him<\/p>\n
as annexures on affidavit which could be sworn as required under Section 13 of the<\/p>\n
Act. The reason which appears to me- and I have pointed it out at some earlier<\/p>\n
stage of the present judgment- is that the most of the evidence or materials could be<\/p>\n
such which could be coming either from the possession of the delinquent public<\/p>\n
servant or to which he could be a party making it unnecessary to seek the<\/p>\n
observance of the rules of the Evidence Act on proof of fact pointing to the alleged<\/p>\n
amassing of ill-earned assets. Further, which I find about the nature of documents<\/p>\n
on acquisition of properties by a delinquent public servant is that most of them or<\/p>\n
may be all of them could be admissible itself under any of the provisions of the<\/p>\n
Evidence Act.\n<\/p>\n
46.           It appears reasonable more so to do inasmuch as the proceedings of<\/p>\n
adjudicating the petition under Section 13 of the Act by an the order under Section<\/p>\n
15 of the Act, is not a trial as it used to be earlier under the Criminal Law<\/p>\n
(Amendment) Ordinance, 1944 and prior to coming into force of the present Act of<\/p>\n
2010. It is somewhere around an enquiry for satisfying the judicial conscience so as<\/p>\n
to finding out as to what could be the \u201ereasons to believe\u201f regarding existence of<\/p>\n
circumstances or grounds indicating as if the disproportionate assets amassed by<\/p>\n
such a delinquent public servant might have been earned by virtue of commission<\/p>\n
of the offence as defined by Section 2(e) of the Act. The term \u201ereasons to believe\u201f
\n                                                                                  35<\/span><\/p>\n
have to be found out from such materials or evidence which could be brought on<\/p>\n
record through affidavit which is the most formal procedure of placing evidence to<\/p>\n
satisfy the judicial conscience as regards drawing satisfaction relating to<\/p>\n
appearance of reasons for believing the above proposition of facts or indictment<\/p>\n
against a public servant. I may note that the tendering of \u201eprima facie evidence\u201f on<\/p>\n
affidavit to establish \u201ereasons to believe\u201f as required by Section 13 of the Act may<\/p>\n
not be an isolated and solitary legislative provision; one may find other instances<\/p>\n
also in other legislations. Section 5 of the Criminal Law( Amendment) Ordinance,<\/p>\n
1944 speaks of taking evidence of parties during the investigation held by the<\/p>\n
District Judge, on the petition filed under Section 3 of the Ordinance seeking<\/p>\n
attachment of the properties similarly amassed by a public servant as is to be dealt<\/p>\n
with under Section 13 of the Act. Section 5 of the Ordinance, 1944 directs the<\/p>\n
taking of evidence as per mode of receiving evidence in a suit under the C.P.C. It<\/p>\n
hardly requires to be noted that Order 18 Rule-4 C.P.C. permits taking evidence on<\/p>\n
affidavit. Further, a proceeding under Section 13 of the Act, virtually, is an<\/p>\n
indictment on the character of a public servant, present or past, and the enquiry<\/p>\n
under the proceeding is in reality to satisfy, prima facie, about the existence of<\/p>\n
supporting evidence. As such, the evidence is virtually on the credentials or the<\/p>\n
character of a public servant. It is not that the instance of permitting evidence on<\/p>\n
affidavit on the character or credentials of a public servant could not be found<\/p>\n
anywhere in the annals of Criminal Law. It is contained in the Code of Criminal<\/p>\n
Procedure in Section 295, to be exact.\n<\/p>\n
47.       The word \u201ebelieve\u201f does indicate towards some certainty and does not<\/p>\n
partake of \u201esuspicion\u201f or \u201efanciful belief\u201f as regards the existence of a particular<\/p>\n
fact or thing. But, in the present or in any other case no reasonable person could<\/p>\n
simply believe the existence of the accusation or indictment through proposed facts
\n                                                                                     36<\/span><\/p>\n
unless there are supporting reasons which are necessary to come out from the prima<\/p>\n
facie evidence. Thus, even if the thing may not be certain as regards proof to the<\/p>\n
hilt. But, the evidence or material brought on record by the State Government<\/p>\n
through affidavits should satisfactorily raise a probability of the accusation or<\/p>\n
indictment being sustained in case the evidence is not rebutted. It is then only that<\/p>\n
case a complete case of \u201ereasons to believe\u201f could be made out. This is how I have<\/p>\n
perceived the two terms, I have discussed herein and this is how, I think, the<\/p>\n
Authorised Officer should proceed to adjudicate an application under Section13 of<\/p>\n
the Act.\n<\/p>\n
48.          The above discussion takes care of the submission of Shri Singh that<\/p>\n
Rules of evidence have not been followed. I have already pointed out that the trial<\/p>\n
procedure is differently contained both in the Act and in the Rules and the<\/p>\n
procedure for adjudicating an application under Section 13 of the Act              has<\/p>\n
differently been charted out by laying down provisions of Chapter III of the Act as<\/p>\n
also the relevant Rules framed in that behalf. Those provisions relating to the<\/p>\n
proceeding of that particular Chapter-III does not permit of taking evidence as per<\/p>\n
the Indian Evidence Act, and its application mutatis mutandis, as I have noted<\/p>\n
somewhere in the earlier part of the present judgment, is confined to the trial of the<\/p>\n
offence by the Special Court as per Rule 15 of the Act. It is true that that particular<\/p>\n
Rule 15 also speaks of the application of Indian Evidence Act mutatis mutandis<\/p>\n
also to the proceedings before the Authorised Officer, but in my considered view-<\/p>\n
and that I have already expressed in some earlier part of the present judgment-<\/p>\n
those rules of evidence be applicable only when the dispute is raised by the<\/p>\n
delinquent public servant regarding valuation of the properties which could have<\/p>\n
been made by the State Government for filing a petition under Section 13 of the<\/p>\n
Act and that too when the Authorised Officer had decided to seek the assistance
\n                                                                                      37<\/span><\/p>\n
of any Technical Expert, etc. as per the provision of Rule 11( g) of the Rules, else,<\/p>\n
the Indian Evidence Act could never be applied to such proceedings. In case even<\/p>\n
of a technical expert being asked to assist the Authorized Officer as per Rule 11(g),<\/p>\n
as may appear from Section-15 of the Act, the consideration has to be only of his<\/p>\n
report. I am of the opinion that in such a case, the report may be tendered on<\/p>\n
affidavit and no application of the rules of Evidence Act has to be made strictly.<\/p>\n
49.       The next submission of Shri Rana Pratap Singh and Shri Chittaranjan<\/p>\n
Sinha, Senior Counsel appearing on behalf of the appellants was that the<\/p>\n
Authorised Officer, in spite of being requested through petitions filed before him,<\/p>\n
specially by the two appellants Shivshankar Verma and Smt. Usha Verma for<\/p>\n
supply of copies of relevant documents, rejected the prayer and directed the<\/p>\n
appellants merely to have a glance of the        documents. The petitions filed by<\/p>\n
appellants Shivashankar Verma and Smt. Usha Verma appear at pages 59 and 65 of<\/p>\n
File C of the lower court records which have been received by this Court. Through<\/p>\n
the above petitions the appellants were making prayer for supply of copies of<\/p>\n
seizure memos, different documents including those relating to operation of Bank<\/p>\n
accounts besides the copies of treasury statements relating to payment of salary to<\/p>\n
appellant Shivashankar Verma. Some of the documents, as may appear from<\/p>\n
perusal of the petition filed before the Authorised Officer on 29.11.2010, were<\/p>\n
Cheque Books and counterfoils of slips of different documents, may be the Cheque<\/p>\n
Books or payment orders. Besides, the seizure was also of diary acknowledging the<\/p>\n
receipt of gifts, etc. and copy of passport of the two appellants. The other petition<\/p>\n
filed on 22.11.2010 in the court below was seeking copies of the Travelling<\/p>\n
Allowance bills, pay bills and other such documents, like, the house building<\/p>\n
advance which was granted to appellant Shivashankar Verma by the State<\/p>\n
Government as also the valuation report. In addition to the above, the documents,
\n                                                                                   38<\/span><\/p>\n
copies of which were sought by appellant Shivashankar Verma, related to the<\/p>\n
seizure of electric and telephone bills, showing expenditures incurred by the<\/p>\n
appellant in respect of those bills, besides the documents of investment in various<\/p>\n
schemes or portfolios made by the two appellants. Some of the documents seized<\/p>\n
were copies of drafts showing the payment of tuition fees and other expenditures to<\/p>\n
the various educational institutions where the appellants had sent their son or<\/p>\n
daughters for education. Likewise, the documents relating to other payments to the<\/p>\n
appellants on account of availing leave travel concession as also those relating to<\/p>\n
his General Provident Fund and reimbursements of different entitlements were also<\/p>\n
sought for.\n<\/p>\n
50.       After having gone through the two petitions what I find is that most of<\/p>\n
those documents were seized from the house of the appellants and seizure memos<\/p>\n
were prepared. The formalities of conducting the search and seizing the documents<\/p>\n
besides some of the properties were all carried out in presence of either of the two<\/p>\n
appellants and a copy of the same was handed over to either of the appellants who<\/p>\n
was present at that particular time. Even, the locker was unlocked in presence of the<\/p>\n
appellant Shivashankar Verma as appears from the memorandum prepared in that<\/p>\n
behalf and he was duly supplied copies of those documents. The documents were,<\/p>\n
as such, recovered from the possession of the appellant and he cannot say that those<\/p>\n
were evidence adduced by the State to jump a surprise upon the appellants,<\/p>\n
specially, appellant Shivashankar Verma. Not only that, the agreement to sell the<\/p>\n
land at Alipur,Phulwari to appellant Dr. Upendra Prasad Singh appears produced<\/p>\n
by present appellant Shivashankar Verma. The will which was allegedly created by<\/p>\n
the father of appellant Shivashankar Verma allegedly entrusting to him the gold<\/p>\n
bars, guineas, etc. for safe custody also appears produced by him and, accordingly,<\/p>\n
the production-cum- seizure memo was prepared which is duly available on the
\n                                                                                    39<\/span><\/p>\n
record as per the description given in the petition under Section 13 of the Act. In<\/p>\n
the light of the above position, in my considered view, there was no requirement<\/p>\n
for the court to supply copies of those documents as those were the documents<\/p>\n
which were directly in the knowledge and possession of appellant Shivashankar<\/p>\n
Verma and he could be said to be well acquainted with the contents of those<\/p>\n
documents. Moreover, principles of hearing the appellants on the adjudication of<\/p>\n
the petition under Section 13 of the Act appears not violated as the appellants were<\/p>\n
duly heard and, were, in spite of being fully acquainted with the contents of the<\/p>\n
documents as also about the transactions they related to, allowed by the Authorized<\/p>\n
Officer to have a glance of the documents, I have already noted, the appellants had<\/p>\n
witnessed the seizure himself or themselves and had been handed over the copies of<\/p>\n
each and every seizure memo as is shown by the original copy of the documents<\/p>\n
which I have personally perused while perusing the entire lower court records<\/p>\n
which runs into almost above seven hundred pages of hand written or typed<\/p>\n
sheets of documents. Moreover, mere allegation of the principles of natural justice<\/p>\n
being violated due to non-supply of the copies of the documents have been made,<\/p>\n
without showing as to what prejudice was caused to the appellant. In fact, the<\/p>\n
appellants appear answering all allegations made in the petition under Section 13 of<\/p>\n
the Act. If there was no prejudice caused due to the violation of the rules of natural<\/p>\n
justice, the mere violation had no impact on the result of the order and the same<\/p>\n
cannot on that account be set aside.\n<\/p>\n
51.     Shri Singh was also contending that no document was produced in proof of<\/p>\n
the statements of facts as were made in the petition filed under Section 13 of the<\/p>\n
Act and the learned Authorized Officer passed the order without there being any<\/p>\n
evidence before him and that was contrary to the principles of natural justice,<\/p>\n
specially, when his order could divest the appellants of their rightful properties.
\n                                                                                 40<\/span><\/p>\n
The above contention has already been answered by me just now in the previous<\/p>\n
paragraph. I have with me the whole lower court records of Special Case No.3 of<\/p>\n
2010 arising out of Special Vigilance Unit Case No.2 of 2007 and I have gone<\/p>\n
through each and every page of the documents which were seized by the Vigilance<\/p>\n
Unit and produced during the hearing of the petition under Section 13 of the Act by<\/p>\n
the State on affidavit. I find that the learned Authorized Officer considered those<\/p>\n
documents while passing the impugned order. As such, the principle of natural<\/p>\n
justice does not appear violated or not observed. The catalogue of evidence was<\/p>\n
duly placed before the Authorized Officer by fully describing them as different<\/p>\n
annexures to the petitions and the original of those documents appear properly<\/p>\n
placed on affidavit by the Public Prosecutor for perusal of the Authorized Officer<\/p>\n
so that proper adjudication was made by the Authorised Officer on that petition.<\/p>\n
The learned Authorized Officer has passed a very detailed order and when one<\/p>\n
considers the order passed by him one could find that he has taken up each and<\/p>\n
every asset which was found or alleged as acquired disproportionately to the known<\/p>\n
sources of income of appellant Shivashankar Verma or which has been alleged to<\/p>\n
be held by someone else on his behalf and after considering the relevant<\/p>\n
documents and after assigning proper reasons the learned Authorized Officer had<\/p>\n
gone on to hold that those were assets which were disproportionate to the known<\/p>\n
sources of income of appellant Shivashankar Verma and were, as such, liable to be<\/p>\n
confiscated.\n<\/p>\n
52.       The appellants have a right of hearing, as may appear from Section 15 of<\/p>\n
the Act. If one scrutinizes the impugned order for finding out as to whether the<\/p>\n
appellants had really been afforded the reasonable opportunity of being heard, then<\/p>\n
one could find that there could not be any circumstance appearing from the whole<\/p>\n
record of the case as also from the order impugned herein which could indicate that
\n                                                                                   41<\/span><\/p>\n
there was any infringement on the right of the appellants of being heard by<\/p>\n
snatching from them the opportunity in that behalf. The Vigilance Cell also appears<\/p>\n
sending letters to the appellants calling upon them to explain the accusation and<\/p>\n
those documents have also been brought on record and some of the records, like,<\/p>\n
the wills created in favour of either appellant Shivashankar Verma or his wife Smt.<\/p>\n
Usha Verma by their relatives like, grand father or father of the two appellants,<\/p>\n
have been found to be fictitious and doubtful documents or fabricated to create a<\/p>\n
defence. One such will dated 6.7.2006 executed by Shyamlal Singh, father of<\/p>\n
appellant Usha Verma was executed on a stamp which had been issued much after<\/p>\n
the date 6.7.2006 of execution of the deed. The stamp was reported issued by the<\/p>\n
Treasury, Rai Bariely on 17.8.2006, that\u201fs more than a month after the date of<\/p>\n
execution of the deed. This is proved by documents D-66 and D-67, available at<\/p>\n
pages 84 and 85 of the bunch of documentary evidence which are report in<\/p>\n
response to the queries of the Investigating Officer of the case submitted by the<\/p>\n
concerned Treasury Officer, Rai Bareily( U.P.)<\/p>\n
53.         Thus, what I find is that the contention that the appellants were not<\/p>\n
afforded proper opportunity of being heard appears of no substance.<\/p>\n
54.     Shri Singh was challenging the admissibility of records, like, D 66, D 67 or<\/p>\n
any other correspondences entered into by the Investigating officer and the Special<\/p>\n
Vigilance Unit so as to verifying the correctness of a document or a fact. The same<\/p>\n
criticism was levelled as regards the reports of the Tehsildar regarding the claim of<\/p>\n
the appellants about possessing landed properties through the father of appellant<\/p>\n
Shivashankar Verma. The relevant reports appear at pages 58( D 55) 63 (D 56), 68<\/p>\n
and 69( D. 57) besides the relevant record, i.e., Cadastral Survey Khatian which is<\/p>\n
maintained by the Revenue Department in the State of U.P. I want simply to point<\/p>\n
out that the correspondences were entered into by the public servants, like, the
\n                                                                                  42<\/span><\/p>\n
Investigating officers who were in the rank of Dy. Superintendent or<\/p>\n
Superintendent of Special Vigilance Unit with the Tehsildar of Mohanlal Ganj in<\/p>\n
the district of Lucknow. Those correspondences along with the relevant letters<\/p>\n
issued by Shri S.C. Tiwary, the Superintendent of Police, Special Vigilance Unit,<\/p>\n
the earlier Investigating Officer of the relevant case which appear at different<\/p>\n
pages, like, page 47, 51 and 61 are the records of the discharge of public functions<\/p>\n
by the public servant and the corresponding responses by the Tehsildar, which I<\/p>\n
have just noted, appearing at different pages in the form of document(D) were also<\/p>\n
records of the discharge of the functioning of Tehsildar and, as such, they have to<\/p>\n
be held to be admissible documents under Section 35 of the Evidence Act even if<\/p>\n
the same were not proved. This reason I assign only to answer the contention of<\/p>\n
learned counsel on the use of admissible document. Moreover, it hardly requires to<\/p>\n
be pointed out that adjudication of an application under Sectin13 of the Act has to<\/p>\n
be made only in the light of the prima facie evidence which is required to be<\/p>\n
tendered on affidavit. The contents of the petition and the documents which were<\/p>\n
presented   before the Authorized Officer have been verified by swearing the<\/p>\n
affidavit by Shri Jankinandan Chaudhary who was the Deputy Superintendent of<\/p>\n
Special Vigilance Unit and one of the Investigating Officers of the case and it has<\/p>\n
been submitted by him that the statements in the application under Section13 of the<\/p>\n
Act were on the basis of records\/documents\/evidence submitted or being submitted<\/p>\n
in the court, i.e., before the Authorized Officer which were connected with the<\/p>\n
Special Vigilance Case and, further, that they were genuine documents which were<\/p>\n
being filed before the Court.. It is true that the above affidavit does not speak<\/p>\n
individually of a particular document and its contents, but when genuine and<\/p>\n
original documents were tendered through the affidavit and its contents were also<\/p>\n
testified through the said affidavit which might be in one line or in a couple of
\n                                                                                   43<\/span><\/p>\n
lines, then compliance of producing prima facie evidence required by Section 13 of<\/p>\n
the Act on production of evidence on affidavit or affidavits appears satisfactory.<\/p>\n
The learned Authorized Officer has considered the documents which were placed<\/p>\n
in original and are still available on the lower court records which I have myself<\/p>\n
perused so as to examining the above contentions of the learned Senior Counsel<\/p>\n
appearing on behalf of the appellants.\n<\/p>\n
55.      The learned Authorized Officer has taken up each and every accusation of<\/p>\n
acquiring disproportionate asset and has gone on to hold by considering the<\/p>\n
relevant evidence available to him in the light of the statements of defence<\/p>\n
presented by the appellant Shivashankar Verma and other appellants that the<\/p>\n
particular assets either in the form of money or in any other form were acquired by<\/p>\n
the appellants Shivashankar Verma which was disproportionate to his known<\/p>\n
source of income. The findings have been recorded by the learned Authorized<\/p>\n
Officer in his own way by considering the evidence available on record. I want to<\/p>\n
scrutinized a few of them so as to satisfying myself as to whether the adjudication<\/p>\n
was correctly made as per requirement of law, specially, Section 15 of the Act.<\/p>\n
56.          Coming to the petition and the allegation of acquiring assets<\/p>\n
disproportionately to the known sources of income of appellant Shivashankar<\/p>\n
Verma, the allegations have been quantified in paragraph 20 of the petition by<\/p>\n
stating, after calculating in the earlier paragraphs, that the total income received<\/p>\n
from the known sources of income of appellant Shivashankar Verma and after<\/p>\n
deducting from the same the expenditures which he could have incurred out of the<\/p>\n
total income of Rs. 50,95,056.72 Paise it could be said that the likely savings was<\/p>\n
Rs. 2,45,031.08 Paise. However, the assets which were found in possession of the<\/p>\n
appellant was of the value of Rs. 2,17,02,657.37 Paise which has been detailed in<\/p>\n
the attached annexure-3 to the petition and, as such, the disproportionate assets
\n                                                                                       44<\/span><\/p>\n
came to Rs. 2,14,57,734.65 Paise. Some of the assets which were not verifiable<\/p>\n
physically was of the value of Rs. 2,09,66,312\/- as is indicated in Paragraph 22 of<\/p>\n
the petition. What, therefore, appears stated is that the total discovered assets of the<\/p>\n
appellant stood at Rs. 5,24,24,046.65 Paise, almost half of which has not been<\/p>\n
verified till the filing of the application for confiscation of the assets. So far as the<\/p>\n
explanation submitted by appellant Shivashankar Verma before the Special<\/p>\n
Vigilance Unit was concerned, he was not denying or disclaiming the assets alleged<\/p>\n
acquired by him, he was only explaining the acquisition and was explaining the<\/p>\n
recovery of Rs. 16,49,910\/- in cash from his house as also from his locker in<\/p>\n
Allahabad Bank, Sheikhpura, Branch, Patna. Besides, Rs. 2,58,000\/- the above<\/p>\n
locker was found storing gold bars weighing 1 K.G., 800 guineas and jewelleries<\/p>\n
of gold the value of which was Rs. 80,78,596\/-. So far as the recovery of Rs.<\/p>\n
16,49,910\/- is concerned, it was stated by the appellant Shivashankar Verma that he<\/p>\n
had sold his land situated at Alipur Phulwari which is shown as the asset of the<\/p>\n
appellant at Serial No. 7 of paragraph 24 of the petition for valuable consideration<\/p>\n
of Rs. 8,10,000\/- and had received the consideration amount in cash from appellant<\/p>\n
Dr. Upendra Prasad Singh and in token thereof the appellant had already entered<\/p>\n
into an agreement to sell the property as per deed of agreement to sell dated<\/p>\n
7.3.2007. He had received the total consideration money in two instalments as may<\/p>\n
appear from the original deed marked D 75 at page 223 of Volume III of the<\/p>\n
documents presented before the Authorized Officer. The first instalment in the form<\/p>\n
of Rs. 2,58,000\/- received on the day the deed was executed, i.e.,7.3.2007 and the<\/p>\n
last instalment of Rs. 5,52,000\/- was paid to appellant Shivashankar Verma on<\/p>\n
4.7.2007 by appellant Dr. Upendra Prasad Singh.\n<\/p>\n
57.       There are many circumstances to reject the plea of the above payment and<\/p>\n
receipt of a total amount of Rs. 8,10,000\/- as the full consideration money of the
\n                                                                                      45<\/span><\/p>\n
property which has been described at Serial No. 7 in paragraphh 24 of the petition<\/p>\n
under Section 13 of the Act which pertains to Khata No.2, Survey Plot No. 96<\/p>\n
measluring 13.5 decimals at Alipur Phulwari. The learned Authorized Officer has<\/p>\n
noted that appellant Dr. Upendra Prasad Singh was simply the name lender and the<\/p>\n
document D\/75 the agreement to sell was a subsequently prepared document which<\/p>\n
was brought into existence during the course of investigation of the present case. It<\/p>\n
has further been noted as a circumstance to reject the plea that appellant Dr.<\/p>\n
Upendra Prasad Singh had not disclosed as to what was the source from which he<\/p>\n
advanced the money to purchase the above property from appellant Shivashankar<\/p>\n
Verma. In addition to the reason which has been assigned by the learned<\/p>\n
Authorised Officer, what I      see after perusing the document D\/75 which was<\/p>\n
presented by the appellant Shivashankar Verma before the Special Vigilance Unit<\/p>\n
during the course of investigation of the case when he was asked to explain the<\/p>\n
possession of Rs. 19,07,910\/- is that the document does not contain any statement<\/p>\n
which is generally made in such documents as to what was the date or the point of<\/p>\n
time on which the agreement was reached between the parties for sale and purchase<\/p>\n
of that particular property. Not only that, if it is accepted for the sake of argument<\/p>\n
that the sale or purchase was agreed and accordingly, the document was brought<\/p>\n
into existence on 7.3.2007 which is the date appearing under signatures of different<\/p>\n
persons including the two appellants, namely, Shivashankar Verma and Dr.<\/p>\n
Upendra Prasad Singh then one does not understand as to why the stamp paper for<\/p>\n
creation of the document D\/75 was purchased as back as on 24.11.2006. It also<\/p>\n
does not appear from the recital of that particular document that any negotiations<\/p>\n
were earlier gone into prior to fixing the deal and finalizing it. Not only that, one of<\/p>\n
the most significant features of such document is that a recital is made at the end of<\/p>\n
the document that the document has been scribed on a particular day and date of a
\n                                                                                  46<\/span><\/p>\n
particular month and year, but there is no such indication        in the document.<\/p>\n
Likewise, three sheets of the document are signed only by appellant Shivashankar<\/p>\n
Verma and appellant Upendra Prasad Singh has signed the last page of the<\/p>\n
document which also does not indicate as to why it was like that. The other<\/p>\n
circumstance upon which the agreement to sell the property by appellant<\/p>\n
Shivashankar Verma to appellant Upendra Prasad Singh has to be rejected is duly<\/p>\n
identified by the learned Authorized Officer. The Special Vigilance Unit verified<\/p>\n
the claim of sale and purchase of the stamp paper bearing no. A-580080 from the<\/p>\n
Stamp Vendor to appellant Dr. Upendra Prasad Singh. As per Rules, the Sale<\/p>\n
Register in respect of sold stamp of every year has to be produced before the<\/p>\n
Collector or any other Authorized Officer for verification and checking. But, it was<\/p>\n
found that the Stamp Vendor, namely, Dinesh Kumar Gupta, had not produced the<\/p>\n
Register showing the sale of the stamp not only of the year 2006 but also of the<\/p>\n
years 2007 to 2009 and that he was presenting his book on sale of the stamp in the<\/p>\n
year 2010. Thus, there was a probability that the stamp was purchased only in the<\/p>\n
year 2010 so as to creating a false document for supporting an equally false<\/p>\n
statement of defence so as to escaping the criminal liabilities. In that view, I<\/p>\n
uphold the finding of the lower court that the deed which has been described as the<\/p>\n
document D\/75 was prepared subsequently after recovery of the money so as to<\/p>\n
explaining the illegal possession of it by appellant Shivashanakar Verma as regards<\/p>\n
recovery of Rs. 8,10,000\/- out of the total mount of Rs. 16,49,910\/-.<\/p>\n
58.    The other part of the above noted recovered amount has been explained by<\/p>\n
appellant Shivashankar verma by stating that Rs. 8,00,000\/- was handed over to<\/p>\n
him by his brother-in-law, i.e., appellant Krishna Pal Singh who had finalized the<\/p>\n
purchase of a Flat in Aradhna Enclave, Jagdeo Path, Bailey Road, Patna and had<\/p>\n
paid Rs. 70,000\/- by a cheque dated 22.3.2007. The builders were asking for the
\n                                                                                     47<\/span><\/p>\n
payment of further price of the Flat and as such Krishna Pal Singh( appellant in<\/p>\n
Cr.Appeal No. 551 of 2011) had borrowed Rs. 8,00,000\/- from his distant uncle,<\/p>\n
namely, Suryabali Singh who had given to him liquid cash of Rs. 8,00,000\/- by<\/p>\n
handing over the said amount to appellant Shivashankar Verma for safe keeping<\/p>\n
but in the meantime, the raid was conducted and the amount was recovered. The<\/p>\n
learned Judge has rightly held that if the amount was borrowed as a loan, it was<\/p>\n
required to be shown to be paid either by a bank draft or a cheque issued by<\/p>\n
Suryabali Singh who is said to have given the money on loan. But, it was not like<\/p>\n
that. Not only that, no evidence has been produced to show as to how the said<\/p>\n
Suryabali Singh had got that much of money for being given to appellant Krishna<\/p>\n
Pal Singh. I see another circumstance to reject the defence of the appellant. It is<\/p>\n
stated by Krishnapal Singh and appellant Shivashankar Verma tht Krtishnapal<\/p>\n
Singh Was employed in the Airtel at an annual package of Rs. 8,00,000\/- or so. In<\/p>\n
that view he could have obtained legitimate housing loan from any banking<\/p>\n
organization, easily to secure his acquisition of the flat. In the above background, it<\/p>\n
was rightly held by the learned Authorized Officer that Rs. 8,00000\/- was also the<\/p>\n
money belonging to appellant Shivashankar Verma.\n<\/p>\n
59.          Besides the above two explanations, appellant Shivashankar Verma<\/p>\n
submitted in his statement of defence that the remaining amount of Rs. 5, 35, 684\/-<\/p>\n
out of the total of Rs. 19,07,910\/- which was recovered either from his house or his<\/p>\n
locker was received as gift on the occasion of marriage of Dr. Rashmi Verma, his<\/p>\n
daughter. The above plea has been rejected by the learned Authorized Officer in<\/p>\n
want of satisfactory, supporting material. In my considered view a public servant<\/p>\n
might have friends and relatives, but even if he is as popular as one may claim<\/p>\n
himself to be, it would never fetch in gift hard cash to the tune of Rs. 5,35,684\/- on<\/p>\n
the occasion of the marriage of one\u201fs daughter. This is one reason upon which the
\n                                                                                   48<\/span><\/p>\n
whole defence appears misplaced.\n<\/p>\n
60.     In order to explaining his assets which have been alleged disproportionate<\/p>\n
to his known sources of income, the appellant Shivashankar Verma has stated that<\/p>\n
his wife appellant Usha Verma received as gift an amount of Rs. 2,00000\/- from<\/p>\n
one Dr. Ila Tripathi by two cheques which are described in D1 which is available at<\/p>\n
Serial no. 3 of Volume I of the documents. The explanation as furnished by<\/p>\n
appellants Shivashankar Verma and his wife is that the gift by Dr. Tripathi was out<\/p>\n
of love and affection she was having for appellant Usha Verma and it was to help<\/p>\n
the two appellants out at the time of construction of their house, as may appear<\/p>\n
from the replies submitted by appellant Shivashankar Verma in response to letter<\/p>\n
no. FN Addl. DIT(Inv.) AD\/3\/97-98\/0285 dated 12.9.1997 by which investigation<\/p>\n
had been started against the appellant Shivashankar Verma on some unexplained<\/p>\n
income and calculation of tax. The appellant Verma was pointing out that Dr. Ila<\/p>\n
Tripathi who was working in B.B.C., London, was visiting Patna regularly and her<\/p>\n
son was also a medical student who was also staying in Patna and due to affection<\/p>\n
towards his wife, i.e., appellant Usha Verma, when she learnt that the appellants<\/p>\n
were constructing a house in Patna, she( Dr. Ila Tripathi) gifted the amount to her<\/p>\n
to help the appellants in the house construction. The original letter by which the<\/p>\n
two cheques bearing No. 544494 dated 17.1.1996 and 544964 dated 23.1.1996<\/p>\n
were sent does speak of gifting a consolidated amount of Rs. 2,00000\/- by the two<\/p>\n
cheques each of the valuation of Rs. 1,00,000\/- out of love and affection to<\/p>\n
appellant Usha Verma. But, it is completely silent on the gift of amount to help the<\/p>\n
appellants out of the financial constraints in construction of their house. Likewise,<\/p>\n
when it came to explaining the recovery of 1 K.G. of gold bars, 800 guineas and<\/p>\n
jewelleries, the total weight of which was 9 K.Gs. 218 grams appellant<\/p>\n
Shivashankar verma was submitting in his defence that his father was an
\n                                                                                    49<\/span><\/p>\n
agriculturist who had sufficient landed properties at his paternal house and the<\/p>\n
agricultural produce thereof was utilized by his father appellant Rampal Verma for<\/p>\n
purchasing gold which was at the relevant time costing Rs. 20\/- per Bhari. The<\/p>\n
Special Vigilance Unit was seeking informations about the properties owned by<\/p>\n
appellant Ram Pal Verma from the Tehsildar of Mohanlalganj and it was reported<\/p>\n
that appellant Ram Pal Verma had 2.288 hectares of land at village Garha, the total<\/p>\n
income from which from the year 1986 to 2007 could be Rs. 10,55,000\/- It was<\/p>\n
further reported that Tarabati Devi, the 2nd wife of appellant Ram Pal Verma and<\/p>\n
step mother of appellant Shivashankar Verma, was also owning land in the same<\/p>\n
village measuring 0.537 hectares and the total income of Tarabati Devi out of that<\/p>\n
land right from 1986 to 2007 was calculated at Rs. 3,45,000\/-. It has to be noted<\/p>\n
that appellant Shivashankar Verma had three more brothers, namely, Narendra<\/p>\n
Kumar, Satyendra Kumar and Jitendra and one sister, Lajjabati being married to<\/p>\n
one Dhirendra Kumar Singh. Appellant Shivashankar Verma was the only<\/p>\n
employed person, his other brothers were unemployed and they were dependent<\/p>\n
wholly upon the agricultural produce for meeting out their needs and other costs<\/p>\n
including the cost carrying out the agricultural operations. In that view, it could be<\/p>\n
very difficult for any farmer of such a meager amount on account of property of<\/p>\n
such a small holding that he would be purchasing 1 K.G. gold bars, 800 guineas<\/p>\n
which is claimed donated by appellant Ram Pal Verma by his will which has been<\/p>\n
presented by appellant Shivashankar Verma before the Investigating Officer of the<\/p>\n
case and for that the receipt-cum-seizure memo was prepared on 1.4.2010 which<\/p>\n
appears at page 227 of the documents along with a copy of the will which was<\/p>\n
allegedly scribed by appellant Ram Pal Verma. The seizure memo in respect of the<\/p>\n
recovery of the gold from the locker of appellant Shivashankar Verma appears at<\/p>\n
page 28 of Volume-III of the documents as D.46 and the description of the gold
\n                                                                                   50<\/span><\/p>\n
bars has been indicated in that seizure memo D.46. It is noted that the gold bars<\/p>\n
were manufactured by ARGOR, HERAEYS, Switzerland bearing no. G27892. I<\/p>\n
find from the statements made by appellant Ram Pal Verma in his will which was<\/p>\n
produced by appellant Shivashankar Verma before the investigating agency that he<\/p>\n
claimed to have purchased the gold ornaments and other gold items and prior to<\/p>\n
handing the gold-bars and guineas, he melted them to create gold-bars and<\/p>\n
thereafter handed the gold bars and guineas to Shivshankar verma which was quite<\/p>\n
ahead of the seizure of the property or the execution of the will on 10.1.2007. The<\/p>\n
seizure of the gold bars was made on 19.7.2007. The will is a document which has<\/p>\n
been typed on a plain paper and was notarized before the Notary Public. The<\/p>\n
learned Authorised Officer has observed that there is no case of appellant<\/p>\n
Shivashankar Verma or his father that appellant Ram Pal Verma that he had ever<\/p>\n
gone to Switzerland to purchase gold bars. In fact, it is admitted by appellant<\/p>\n
Shivashankar Verma that he had visited Switzerland sometimes in the year 2005.<\/p>\n
The learned Authorised Officer has rightly rejected the defence of the appellant<\/p>\n
Shivashankar Verma on that ground besides other grounds. The very ground of<\/p>\n
purchasing gold bars which was made in Switzerland by appellant Ram Pal Verma<\/p>\n
appears fictitious and an after thought. Likewise, the will in respect thereof also<\/p>\n
appears antedated. I do not see any fallacy in the finding of the learned Authorised<\/p>\n
Officer while he was rejecting the defence statements of the appellants.<\/p>\n
61.     In order to justify the recovery of money or finding the same, the appellants<\/p>\n
were taking pleas of having received gifts from the grand father of appellant<\/p>\n
Shivashankar Verma but the investigation has revealed that his grand father was<\/p>\n
separated from appellant Ram Pal Verma long back and had no reasons nor the<\/p>\n
income to gift an amount of Rs. 1,50,000\/- by the deed of gift dated 6.7.2006<\/p>\n
which D.68 appearing at page 87 of Volume-III of the documents.
\n                                                                                       51<\/span><\/p>\n
62.       It may be pointed out that the grand father of the appellant Shivashankar<\/p>\n
Verma, namely, Ram Sevak Verma had no independent source of income. He did<\/p>\n
not even have the landed properties as per report of the Revenue Officials and, as<\/p>\n
such, there was every possibility that the appellant had utilized his own illegally<\/p>\n
amassed money in creating the deed of gift D.I(IX) which is available at page 10<\/p>\n
of Volume-I of the documents. Curiously enough, the date of purchase of the stamp<\/p>\n
is so cryptic as it is not possible to pick the same out and it is indicated as if it had<\/p>\n
been sold on 21.5.1998 but after quite some application I could find out that the<\/p>\n
very stamp paper could have been purchased on 13.1.2001 much after the execution<\/p>\n
of the will. This record further creates a probability in respect of the statements<\/p>\n
made in the application under Section 13 of the Act that the assets which were<\/p>\n
unearthed during the course of investigation might have been obtained by appellant<\/p>\n
Shivashankar Verma by commission of an offence under the Prevention of<\/p>\n
Corruption Act.\n<\/p>\n
63.    Besides, the conduct of the appellant does not behove of a public servant.<\/p>\n
The appellant obtained a loan for purchasing a car but he did not utilize the<\/p>\n
sanctioned amount to finance the purchase of the Maruti vehicle and he was asked<\/p>\n
to explain the above conduct of his by the State Government. In addition to all the<\/p>\n
above, being the Class I Officer and in the rank of Secretary of a Department of<\/p>\n
the State Government,, he was not hesitating in creating the document D 68 by<\/p>\n
antedating it as may appear from the will executed by his father-in-law, namely,<\/p>\n
appellant Shyam Lal Singh which is available at page 87 of Volume-III of the<\/p>\n
documents as it was found out as may appear from D.66 and D.67 which are<\/p>\n
available at pages 84 to 86 of the same Volume-III of documents that the stamp on<\/p>\n
which the deed of gift in favour of appellant Usha Verma was scribed showing a<\/p>\n
gift of an amount of Rs. 1,50,000\/- had been purchased on 17.8.2006 from Stamp
\n                                                                                    52<\/span><\/p>\n
Vendor Kamlesh Kumar Gupta. The date of sale of the stamp was shown on it as<\/p>\n
19.5.2006. This is the solitary reason that I have doubted all the gift deeds which<\/p>\n
have been prepared either showing the receipt of money or property or transfer of<\/p>\n
the same as in the case of transfer of a piece of a land by appellant Usha Verma in<\/p>\n
favour of Smt. Suman Lata Verma, her sister. Those were all fabricated records to<\/p>\n
cover up the misdeeds of appellant Shivashankar Verma and, thereby, to mislead a<\/p>\n
Judge not to speak of misleading the investigating agency.\n<\/p>\n
64.       The learned Authorised Officer has dealt all these aspects himself in his<\/p>\n
own way in different paragraphs of his order by picking out the items from the<\/p>\n
petition filed under Section 13 of the Act before him and has further gone on to<\/p>\n
consider other assets, like finding of NSC or documents of other investments in the<\/p>\n
name of either of the two appellants, namely, Shivashankar Verma or Usha Verma.<\/p>\n
The learned Authorized Officer has rightly held that appellant Shivashankar Verma<\/p>\n
was operating many Bank Accounts in different Banks. There were balances lying<\/p>\n
in those Accounts but there is no explanation as to how those amounts were<\/p>\n
obtained by the appellants so as to creating those deposits.<\/p>\n
65.               There is no dispute that Smt. Usha Verma wife of appellant<\/p>\n
Shivashankar Verma was a house wife; she did not have any individual income.<\/p>\n
Her father was a lowly paid Gram Sevak whose pension was of Rs. 2612\/- only.<\/p>\n
But, all on a sudden she was showing her own income and was, thus filing her<\/p>\n
individual income tax returns. Not only that, her income started multiplying so<\/p>\n
much so that she was purchasing shares and debentures in various Companies<\/p>\n
besides making investments of higher values in different high yielding portfolios.<\/p>\n
She had multiple bank accounts in many nationalized banks and her children were<\/p>\n
studying in a medical institute where the fees, etc. were in lacs annually. She filed<\/p>\n
statements of receipts, returns from shares, etc. held by her regularly. This meteoric
\n                                                                                     53<\/span><\/p>\n
financial rise of Smt. Usha Verma is mind boggling and defies reasons which might<\/p>\n
have been placed by her or her husband either before the learned Authorized<\/p>\n
Officer or before the Income Tax Authorities. This unsavory rise of Smt.Verma<\/p>\n
from a penniless lady to a lady of sound financial position, while on the one hand,<\/p>\n
explains as to how corruption multiplies, on the other hand it exhibits the demerit<\/p>\n
of the submission on the income of appellants being sanctified due to filing of tax<\/p>\n
returns by them. One has always to remind oneself that tax returns do not sanctify<\/p>\n
and legalize illegally earned money. Tax returns are instruments only in respect of<\/p>\n
the receipts in a financial year which may be subject to assessment of tax to be<\/p>\n
paid. Moreover, the appellant Shivashankar Verma has received notice from the<\/p>\n
Income Tax Department questioning his statements which only castigates his claim<\/p>\n
of solemnity of his statements of defence that his returns sanctified his acquisition.<\/p>\n
        I have spoken about the meteoric financial arise of Smt.Verma. There could<\/p>\n
not be any further example of it than the deed of gift notarized by her in favour of<\/p>\n
her sister Smt. Sumanlata Verma in respect of the land situated at Ramner-<\/p>\n
Moiuddinpur measuring 01 Biswa 10 dhurs. Her appears a case of pauper to fat-<\/p>\n
purse, multiplying due mainly to the misdeeds of her bureaucrat husband.<\/p>\n
66.        On consideration of the reasons which have been assigned by the learned<\/p>\n
Authorised Officer for directing the confiscation of the properties, I find that those<\/p>\n
were completely borne out of the facts and documents stated or presented by the<\/p>\n
sides and the order impugned herein does not suffer from any infirmity or illegality,<\/p>\n
as a result of which these appeals appear of no merit and the same are dismissed.<\/p>\n
67.      However, while perusing the records seized by the Special Vigilance Unit<\/p>\n
during the course of investigation of the case, I came across the documents which<\/p>\n
appears as D2(V), D2(VI), D2(VII), D2(VIII), D2(IX) and D2(X). The document<\/p>\n
D2(V) is in respect of purchase of silver, utensils, gold and jewelleries, of the
\n                                                                                    54<\/span><\/p>\n
value of    Rs. 3,41,805\/- and there was no explanation          from the appellant<\/p>\n
Shivashankar Verma in that behalf. Likewise, the documents D2(VI) to D2(X) are<\/p>\n
documents which were recovered from the possession of appellants Shivashankar<\/p>\n
Verma which show cash receipt of Rs. 70,00,000\/-( seventy lacs) was allegedly<\/p>\n
issued on account of receipt of the above amount on different dates by M\/S Atlanta<\/p>\n
Pumps, Pvt. Ltd., Budha Colony, East Boring Canal Road, Patna with its Head<\/p>\n
Office at No. 487, D1 and D2, 4th Cage, Peenyl Industrial Area, Bangalore. The<\/p>\n
Special Vigilance Unit has alleged that these were investments made by the<\/p>\n
appellant Shivashankar Verma in the above Firm and the return was by way of<\/p>\n
payment of interest. It hardly requires to be pointed out that the Investigating<\/p>\n
Agency has not only to investigate the facts alleged but if it comes during the<\/p>\n
investigation of the case of the present nature but if there was any money trail, then<\/p>\n
the investigating agency has to investigate that trail and has to recover the money<\/p>\n
also. The invested money may not be recovered as the money may not be lying at<\/p>\n
any particular place on account of its pumping into the financial circulations in the<\/p>\n
industries or other financial institutions. Still, it was desirable that the Special<\/p>\n
Vigilance Unit could have questioned the persons, specially one Kailash Chand<\/p>\n
Chaudhary who was signing the receipts by arresting him and obtaining his remand<\/p>\n
for questioning.\n<\/p>\n
68.      While I was going through the documents which were filed by the Special<\/p>\n
Vigilance Unit in support of the application filed under Section 13 of the Act, I<\/p>\n
could always have an inkling that such deeper complicity of a public servant in<\/p>\n
commission of the offence could not have been secret; it must have been in the<\/p>\n
knowledge of all concerned. Every effort appears made by all concerned to create<\/p>\n
evidence and, thereby, put a shield around the appellant Shivashankar Verma to<\/p>\n
lend authenticity to all his acquisitions, as appears from documents showing
\n                                                                                         55<\/span><\/p>\n
      receipts of informations and thereby to record the investment or acquisition which<\/p>\n
      were submitted to different authorities by the appellants. The Special Vigilance<\/p>\n
      Unit also appears soft upon appellant Shivashankar Verma as it does not appear to<\/p>\n
      have investigated the huge investment of Rs. 70,00,000\/- in M\/S Atlanta Pumps,<\/p>\n
      Pvt. Ltd. The Court desires that it should be investigated further if it has not been<\/p>\n
      done.\n<\/p>\n
      69.         Apart from the above, this Court feels that whatever was recorded or<\/p>\n
      unearthed may only be the tip of the iceberg; treasures amassed by corrupt means<\/p>\n
      could be huge. As such, it is highly desirable that the investigation be expedited<\/p>\n
      and further informations be gathered at the earliest for being placed before the<\/p>\n
      Authorized Officer, specially, when the investigating agency has itself stated that<\/p>\n
      some assets of Smt. Verma and Shivashankar Verma were still being investigated<\/p>\n
      into.( Please see paragraph 22 of the petition under Section 13 of the Act).<\/p>\n
                                                       ( Dharnidhar Jha, J.)<\/p>\n
Patna High Court
\nThe 19th August, 2011
\nKanth\/A.F.R.<\/p>\n","protected":false},"excerpt":{"rendered":"
Patna High Court Dr. Upendra Prasad Singh vs The State Of Bihar Through Vig on 19 August, 2011 Author: Dharnidhar Jha 1 IN THE HIGH COURT OF JUDICATURE AT PATNA – —- Criminal Appeal (SJ) Nos.507,546,550 and 551 of 2011 —- Against the order dated 17.3.2011 passed by the Additional District and Sessions Judge-VI-cum-Authorised Officer, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,26],"tags":[],"class_list":["post-78478","post","type-post","status-publish","format-standard","hentry","category-high-court","category-patna-high-court"],"yoast_head":"\nDr. Upendra Prasad Singh vs The State Of Bihar Through Vig on 19 August, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/dr-upendra-prasad-singh-vs-the-state-of-bihar-through-vig-on-19-august-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Dr. Upendra Prasad Singh vs The State Of Bihar Through Vig on 19 August, 2011 - 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