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, Special Court No.2, Vigilance, Patna, in Special Case No.3 of 2010 arising out of Special Vigilance Unit Case No. 2 of 2007. - - - - 1. Shiva Shankar Verma , son of Sri Ram Pal Verma, the then Secretary, Minor Irrigation, Govt. of Bihar, Patna, resident of House No. 406, Saubhagya Sharma Path, Rukanpura, Bailey Road, Patna-1 2. Smt. Usha Verma, wife of Shri Shiva Shankar Verma, resident of House No. 406,Saubhagya Sharma Path, Rukanpura, Bailey Road, Patna-1 … … Appellants Versus 1. The State Of Bihar through Vigilance 2. Sri Ashok Kumar Chauhan, Principal Secretary, Vigilance Department, Govt. of Bihar, Patna 3. Sri Janki Nandan Chaudhary, D.S.P., Special Vigilance Unit, Govt. of Bihar through Inspector General, Vigilance, Special Vigilance Unit, Bihar .... .... Respondents ( in Cr. Appeal No. 507 of 2011) with Criminal Appeal (SJ) No. 546 of 2011 Dr. Upendra Prasad Singh, son of late Rambachan Singh, resident of Professor‟s Colony, Kankarbagh, P.S. Patrakarnagar, District Patna .... .... Appellant Versus The State Of Bihar Through Vigilance .... .... Respondent with Criminal Appeal (SJ) No. 550 of 2011 Ram Pal Verma @ Ram Pal, son of late Ram Sevak, Resident of Village Garha, P.S. Nagram, District Lucknow ( U.P.) .... .... Appellant Versus 1. The State Of Bihar through Vigilance 2. Sri Ashok Kumar Chauhan, Principal Secretary, Vigilance Department, Govt. of Bihar, Patna 3. Sri Janki Nandan Chaudhary, D.S.P., Special Vigilance Unit, Govt. of Bihar through Inspector General, Vigilance, Special Vigilance Unit, Bihar .... .... Respondents with Criminal Appeal (SJ) No. 551 of 2011 1. Shyam Lal Singh, son of late Ram Milan Singh, resident of Village Dedaur,P.S.Gurbaxganj, District Rai Bareli 2. Chandra Pal Singh, son of Shri Shyam Lal Singh, resident of Village Dedaur, P.S.Gurbaxganj, District Rai Bareli 3. Krishna Pal Singh, son of Shri Shyam Lal Singh, resident of Village 2 Dedaur, P.S/.Gurbaxganj,District Rai Bareli 4. Smt. SumanVerma alis Suman Lata Verma, wife of Devendra Kumar Verma, resident of Village Raja Ram Kapaurwa, P.S.Shivgarh, District Rai Bareli .... .... Appellants Versus 1. The State of Bihar through Vigilance 2. Shri Ashok Kumar Chauhan, Principal Secretary, Vigilance Department, Government of Bihar, Patna 3. Shri Janki Nandan Chaudhary, Dy. S.P., Special Vigilance Unit .... .... Respondents Appearance : (In CR. APP (SJ) No. 507,550 and 551 of 2011) For the Appellant/s : Shri Rana Pratap Singh, Sr. Advocate Shri Chittaranjan Sinha, Sr. Advocate Shri Sumat Singh, Advocate Shri Rajeshwar Prasad, Advocate Shri Anirban Kundu, Advocate Shri Krishna Narayan Jha, Advopcate Shri Sanjay Kumar Singh, Advocate (In CR. APP (SJ) No. 546 of 2011) For the Appellant : Shri Chandra Shekhar, Sr. Advocate Shri Lal Babu Singh, Advocate For the Respondents : Shri Rama Kant Sharma, Sr. Advocate (In all the appeals) Shri Arvind Kumar, Advocate Shri Santosh Kumar Pandey, Advocate. P R E S E N T THE HONOURABLE SHRI JUSTICE DHARNIDHAR JHA - - - - Dharnidhar Jha, J.- The present batch of four appeals arises out of an order passed by the learned Additional District and Sessions Judge-cum-Authorised Officer, Patna, on 17.3.2011 under Section 15 of the Bihar Special Courts Act, 2009, in connection with Special Case No. 3 of 2010 arising out of Special Vigilance Unit Case No. 2 of 2007 under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988 by which the learned Authorised Officer directed the assets belonging to appellant Shivashankar Verma worth Rs. 1,43,96,265/- be confiscated to the State of Bihar. It was further directed that appellant Shivashankar Verma surrender or deliver possession of the assets shown in paragraph 24 of Annexure- IV appearing at serial nos. 1 to 13 to the 3 District Magistrate, Patna who was to take possession of all the movable and immovable assets within thirty days from the date of the service of the order, failing which the District Magistrate, Patna or the Authorised Officer was to take possession by taking all coercive steps in view of the provision contained in Section 18(2) of the Bihar Special Courts Act, 2009. 2. The two appellants of Cr. Appeal No. 507 of 2011, namely, Shivashankar Verma and Smt. Usha Verma, are spouses, Shivashankar Verma on the relevant date being the Secretary, Department of Minor Irrigation, Govt. of Bihar, Patna. The appellant in Cr. Appeal No.546 of 2011 Dr. Upendra Prasad Singh has been held to be an abettor by attempting to conceal the property relating to Khata No. 2, Plot No. 96, Phulwari, Alipur. Appellant Ram Pal Verma alias Ram Pal (appellant in Cr. Appeal No. 550 of 2011) is the father of appellant Shivshankar Verma whereas appellants Shyam Lal Singh, Chandra Pal Singh and Krishna Pal Singh are the father-in-law and brothers-in-law of appellant Shivashankar Verma. Appellant No. 4 Smt.Suman Verma alias Suman Lata Verma is the sister of appellant Smt.Usha Verma, and they have equally been arrayed as persons who connived with the appellant Shivashankar Verma in concealing the assets earned by him which was disproportionate to his known sources of income in various ways, as may appear from the discussions likely to be made by me while considering the four appeals. Thus, what is admitted is that except appellant Dr. Upendra Prasad Singh, the solitary appellant in Cr. Appeal No.546 of 2011, all the appellants are related to each other either by blood or by marriage. 3. As appears from the statements of facts made by the learned lower court, i.e., the Authorised Officer, Special Vigilance Unit Case No.2 of 2007 was instituted on 3.7.2007 under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act on the basis of reliable source of information that 4 appellant Shivashankar Verma, Secretary, Minor Irrigation Department, Govt. of Bihar was in possession of assets disproportionate to the known source of his income worth Rs. 6,87,000/- in form of movable and immovable properties. While the case was being investigated into, huge properties amassed by appellant Shiva Shankar Verma was allegedly discovered which were quite disproportionate to the known sources of his income. 4. It was stated by the State of Bihar in its petition under Section 13 of the Bihar Special Courts Act, 2009( „Act‟ in short) that during search operations on 6.7.2007 in connection with the above noted case, cash of Rs. 1,64,990/- and 578 Dollars which were of the value of Rs. 24,854/-, were recovered and seized from the house of appellant Shiva Shankar Verma, that‟s, House No.406, Saubhagya Sharma Patha, Rukanpura, Bailey Road, Patna-1. The above recoveries were made on 6.7.2007. Besides the above amount of cash in Indian and foreign currencies, other articles were also found there but they were not seized in spite of being shown in the inventory papered on the spot in presence of the family members of the appellant Shiva Shankar Verma. Those articles were found valued at Rs. 22,14,893/- as shown in Annexure 3 to the petition filed under Section 13 of the Act by the State of Bihar. 5. Appellant Shiva Shankar Verma was operating a bank locker bearing no. 289 in Allahabad Bank, Sheikhpura, Bailey Road, Patna and on search of the same it was found storing gold bar weighing 1 K.G., 800 guineas and gold ornaments, total value of which, as per the recognized Valuer, came to Rs. 80,78,596/-. In addition to the above quantity of gold and other gold articles, Rs. 2,58,000/- in cash was also recovered from the said locker. 6. The State of Bihar stated that appellant Shiva Shankar Verma, residing in House no. 406, Saubhagya Sharma Path, Rukanpura, Bailey Road, Patna-1, was the 5 permanent resident of Village Garha, P.S. Nagram, Tehsil Mohanlal Ganj, District Lucknow (U.P.). His father appellant Ram Pal Verma @ Ram Pal was a farmer holding 5.5.hectares of land, the total income from which, as per the report of Tehsildar, Mohanlalganj was Rs. 50,000/- per annum and on computing the annual income from 1986 to 2007 the total income of appellant Ram Pal Verma came to Rs. 10,55,000/- from his agricultural operations over his agricultural land. It is not denied that appellant Ram Pal Verma alias Ram Pal was earlier married to Tulsa Devi who gave birth to appellant Shiva Shankar Verma and his sister Lajjawati Devi whereafter she demised. Appellant Ram Pal Verma, thereafter, married Tarabati Devi, the step mother of appellant Shiva Shankar Verma from whom appellant Ram Pal Verma begot three sons, namely, Narendra Kumar, Satyendra Kumar and Jitendra Kumar. Thus, appellant Shiva Shankar Verma had three brothers and one sister. Except appellant Shiva Shanakar Verma, who was in service, his remaining three brothers were unemployed and were dependent on the agricultural income of their family. In addition to 5.5. hectares land, appellant Ram Pal Verma had also in his possession 0.537 hectares of land at Village Garha and annual income, as reported by the Tehsildar, from that land was Rs. 16,000/- and on calculation of the above income from 1986 to 2007, he could also have an additional annual income of Rs. 3,45,000/-. 7. The State of Bihar stated, which does not appear denied, that appellant Ram Pal Verma was originally resident of Village Sehajadpur and he was the son of late Ram Sevak Verma who had three other sons also. Ram Sevak Verma, the father of appellant Ram Pal Verma, had got property from his maternal side at Garha and that property was given to appellant Ram Pal Verma while the property which was located at Village Sehjadpur was shared by other three brothers of appellant Ram Pal Verma. 6 8. It was stated further that appellant Shyam Lal Singh who happens to be the father-in-law of appellant Shiva Shankar Verma, was a Gram Sevak in Rai Bareli ( U.P) and he retired from service on 31.3.1998 and his pension was Rs. 2,612/- only in the year 2001. It has further been mentioned that Smt. Usha Verma, who is the wife of appellant Shiva Shankar Verma and daughter of appellant Shyam Lal Singh showed her income from shares of different companies and she had her holdings in different companies in her name which was still being investigated into. There was no dispute about the fact that appellant Smt. Usha Verma was the house wife and she did not have any independent personal income and was not in a position to invest or to purchase some shares or holdings in companies. It was found during the investigation that during the check period starting from 1.1.1986 to 31.5.2007, as per Annexure-2 to the petition under Section 13 of the Act, appellant Shiva Shankar Verma had spent Rs. 48,50,025.64 P. against his total income of Rs. 50,95,056.72P. After deducting from his total income, the amount spent by appellant Shiva Shankar Verma, his savings came to Rs. 2,45,031.08 Paise. Appellant Shiva Shankar Verma was found in possession of assets worth Rs. 2,17,02765.73P. as per Annexure 3 to the petition in his name or in the names of his family members and others and after deducting the above said amount of Rs. 2,45,031.08 Paise. the assets which were found disproportionate to his known sources of income which was possessed by appellant Shiva Shankar Verma was to the tune of Rs. 2,14,57,734.65Paise. The description of properties, both movable and immovable, found possessed disproportionately by appellant Shiva Shankar Verma to his known source of income was detailed in paragraph 24 of the petition filed under Section13 of the Act and it was valued at Rs. 1,43,96 265/- which was prayed to be confiscated during the pendency of the trial of the Special Vigilance Unit Case No.2 of 2007. 7 9. As required by Section14 of the Act, on receipt of the application made under Section 13 thereof, the Authorised Officer appointed under the Act issued notices to the appellants calling upon them to indicate the sources of their respective income, earnings or assets out of which or by means of which he or she had acquired such money or properties along with the evidence on which the appellants relied upon and to show cause as to why the properties which were alleged to be the properties acquired by appellant Shiva Shankar Verma by means of committing the offence under the Prevention of Corruption Act be not confiscated to the State Government. The appellants appeared before the Authorised Officer and filed their individual written statement of defence by way of show cause before Special Court No.2, Vigilance, Patna who was the Authorized Officer in the present case. 10. As regards appellants Shiva Shankar Verma and his wife Smt. Usha Verma, they filed two applications showing their causes in response to the notices issued to them. It was stated by appellant Shiva Shnkar Verma that before joining the Indian Administrative Service in 1981 and being allotted Bihar Cadre, he had joined the Sales Tax Department in the Govt. of Uttar Pradesh in the year, 1976 and had worked in that department till 1979 whereafter he joined Indian Forest Service under the Govt. of India and worked in Himachal Cadre of that service till 1981 prior to joining the Indian Administrative Service. Appellant Shiva Shankar Verma based his defence on the income tax returns and other documents by which he had disclosed to the proper authorities his income and according to that his total income came to Rs. 88,39,217.65P. He stated that he had entered into an agreement to sell his land for Rs. 8,10,000/- with appellant Dr. Upendra Prasad Singh and had received the above amount after having executed an agreement to sell prior to the search of his house. He had income from his Hindu- undivided- family- properties 8 and he had filed return of that income also. Besides, he received gifts in the marriage of his elder daughter from his family members and relatives amounting to Rs. 3,15,000/- and also Rs. 2,20,684/- from the guests. In support of his defence of receiving Rs. 3,354,684/- as gifts on the occasion of his daughter‟s marriage, appellant Shiva Shankar Verma had annexed certain documents. Appellant Shiva Shankar Verma stated that his wife appellant Smt. Usha Verma had also filed income tax return which had been accepted by that particular department and according to those documents, her total income during the period was Rs. 20,00,00/- approximately. In addition to the above, appellant Shiva Shankar Verma had also earned scholarship from the Govt. of U.P. from the period August 1976 to March 1979 and from March 1979 to August, 1981. When he was in the Indian Forest Service, he received salary, etc., and thus his total savings came to Rs. 1,50,000/- during the check period. He submitted that Dollars which were found in the locker of the appellant of the value of Rs. 24,854/- were his savings when he had visited Fizi, Geneva, and Chaina officially and had saved that money out of his official tour. 11. It appears from the first show cause filed by appellant Shiva Shankar Verma that he has made some anomalous statement in paragraph 20 by stating that his total income included that of his wife which came to Rs. 1,08,392.17 including 8 lacs which was kept by appellant Krishnapal Singh which had been deposited with him for purchasing a flat in Patna and, as such, the State of Bihar had illegally concealed about rupees 57 lacs so as to making out an offence for prosecuting him as also to confiscate his properties. 12. As regards the expenditure which was incurred by appellant Shiva Shankar Verma and his wife, it was stated by him that the expenditure which was made by him on air travel was not his own expenditure, but the same had been 9 incurred by the Govt. of Bihar. Similarly, there was duplication in other costs said to be incurred by the appellant on the purchase of computer which was already included in the inventory. In that view of the matter, it was stated by appellant Shiva Shankar Verma that his household expenses which were valued to be 1/3rd of his total income was much less than he actually had incurred, as his daughters and son were residing out side in hostels and colleges in connection with their studies. Besides, the inventory valuation of cars and household articles had been included on a higher side and by duplicating them. The property measuring 13.5 decimals of land situated at Alipur had been sold and that property should not have been included. 13. As regards the recovery of gold bars, guineas and jewelleries from his Bank locker,, it was stated by appellant Shiva Shankar Verma and his wife that those belonged to his father appellant Ram Pal Verma alias Ram Pal which had been given by him to appellant Shiva Shankar Verma for keeping in safe custody for which a registered will was also executed much prior to the search of the locker. Some of the parts of the jewelleries belonged to appellant Smt. Ushal Verma wife of appellant Shiva Shankar Verma which had been received by her as stridharn property and some part of it belonged to his daughter opposite parties 1 and 2 in the court below. It was mentioned that his total ancestral land holding was measuring 13 bighas out of which, on ten bighas pepermint, which was used in manufacture of mentha oil was cultivated whereas on the rest of the land wheat and other agricultural produces were also cultivated from which the average income of his Hindu undivided family was to the tune of Rs. 4.5 lacs per annum. 14. The appellant Shiva Shankar Verma and his wife filed a supplementary show cause and it was stated that the expenditure which had been shown incurred by the appellants was not correct and the same was exaggerated and it was further 10 mentioned that so far as the allegation of different expenses in the notice was concerned, those were also illegal and not exact. In fact, most of the statements by appellant Shiva Shankar Verma and his wife appellant Smt. Usha Verma were by way of explaining the earlier statements and challenging the valuation of different properties in the light of the value which was accepted by the Income Tax Department which was shown by appellant Shiva Shankar Verma in his returns filed before that department. It was stated that the valuation of the house of the appellant had been enhanced by Rs. 1,30,000/- and further that a particular amount of Rs. 4,67,121/- which was the balance in a particular account held by appellant Shiva Shankar Verma in a bank, had been deliberately added to enhance his assets. 15. On the above statements, the appellant Shiva Shanker Verma and his wife appellant Smt. Usha Verma prayed to the learned Authorised Officer to drop the proceedings regarding confiscation of their properties. 16. Appellant Dr. Upendra Prasad Singh,, who was opposite party no. 9 in the court below, also filed his statement of defence. He stated that he was a qualified Medical Practitioner and was also a Professor in Patna Medical College having retired as the Professor and Head of the Department of Pediatric Surgery in the year 2006. He stated that besides his salary, he also ran a clinic as S.U. Nursing Home and Infertility Research Institute, Kankarbagh, Patna and practiced till 2008 and was continuing it till date he filed his written statement of defence. His private clinic where he practiced medicine was situated at Yogipur Chowk, Kankarbagh, Patna. He accounted for his income by filing return and paying income tax to the Income Tax Department and was also allotted Permanent Account Number by that department. Appellant Dr. Upendra Prasad Singh stated that he had purchased the land appertaining to khata no.2,Survey plot No. 96 measuring 13.5 decimals situated at Alipore Phulwari after having paid full consideration amount to 11 appellant Shiva Shankar Verma through a registered deed of sale dated 22.8.2007. It was stated that before registering the deed of sale, the agreement to sale was registered which was a valid and legal instrument and further that appellant Dr. Upendra Prasad Singh was entitled as by virtue of his statutory right to purchase the property as a citizen of India. He stated that he had paid Rs. 5,52,000/- and Rs. 2,58,000/- as payment of consideration to appellant Shivashanker Verma and, as such, it could not be said that the documents were prepared so as to justifying an illegal and sham transaction. It was further stated by appellant Dr. Upendra Prasad Singh that the mutation in respect of the above noted land after its purchase by the appellant was also ordered on 3.3.2008 in his favour and he had paid the rent and obtained the rent receipts. On these statements of defence, appellant Dr. Upendra Prasad Singh prayed for dropping the rule issued against him. 17. In reply to the contention of appellant Dr. Upendra Prasad Singh the State of Bihar filed a reply controverting his claim that the agreement dated 7.3. 2007 in respect of the sale of the above noted land in between appellant Shiva Shankar Verma and Dr. Upendra Prasad Singh had been seized either from the house of appellant Shiva Shankar Verma or from his locker, rather it was stated that the same was produced in original by appellant Shiva Shankar Verma in the office of the Special Vigilance Unit on 24.2.2010 after a lapse of about 2 ½ months of the institution of the case. The seizure list itself shows that it was produced and then seized. The document itself showed the involvement of appellant Dr. Upendra Prasad Singh and, as such, he was made an accused as Dr. Upendra Prasad Singh, who was original opposite party no. 9, in collusion with appellant Shiva Shankar Verma had forged and fabricated the record creating false document regarding payment of consideration amount to stave off the criminal liability of appellant Shiva Shankar Verma. Besides, the transaction of appellants Shiva Shankar Verma 12 and Dr. Upendra Prasad Singh was violative of Section 269 SS of the Income Tax Act and, as such, the entries in the income tax return were false and that raised sufficient reason of initiating the criminal proceedings. Besides, the agreement to sell was prepared on a non-judicial stamp which was obtained from one Dinesh Kumar Gupta, the Stamp Vendor and the register was not produced before the Vigilance Department in respect of the purchase of the paper for executing an agreement to sale which also showed that the document was illegally manufactured to escape the criminal liability. It was contended that the statement of appellant Shiva Shanker Verma regarding unsecured loan from someone to the tune of Rs. 4,45,000/- on 31.3.2007 and Rs. 17,47,000/- on 31.3.2008 were all concocted and manufactured story to save himself from criminal liability. 18. Appellant Krishna Pal Singh, who is the brother-in-law( Sala) of appellant Shiva Shankar Verma, also filed his written statement of defence as he had been impleaded as opposite party no. 6 in the petition filed under Section13 of the Act. He stated that he had come from his native village in Uttar Prasad to Patna for prosecuting his studies under the guardianship of his brother-in-law and sister, namely, Shiva Shanakar Verma and Smt. Usha Verma and he resided with them and studied in Patna. He stated that he intended to purchase a flat in Aradhana Enclave near Jagdeo Path, Patna and had paid Rs. 70,000/- through cheque dated 22.3.2007 and entered into an agreement with the developer in that behalf. He received a letter dated 22.6.2007 from the developer and, accordingly, he had arranged rupees 8 lacs from his distant uncle, named, Suryabali Singh, resident of village Sarwan in the District of Rai Bareily and kept the same in the house of appellant Shiva Shankar Verma so that he could make the payment to