IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.M.P.(M) No. 266 of 2009 Date of decision : 9.7.2009. Mukesh Sharma …Petitioner. Versus State of Himachal Pradesh . …Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? No For the Petitioner : M/s Ajay Kumar and Gurpreet Singh, Advocates. For the Respondent : Mr. A.K.Bansal, Addl. A.G. with Mr. R.P.Singh, Asstt. Advocate General. Kuldip Singh, Judge (Oral) This is a petition under Section 438 Cr.P.C. for releasing the petitioner on bail in FIR No. 3 dated 21.10.2008 under Sections 420, 467, 468, 471, 120-B, 201 IPC and Section 13(2) of Prevention of Corruption Act, registered at Police Station, SV & ACB, Una. Status report filed. Heard and perused the record. 2. The prosecution case, in brief is the Deputy Inspector General of Police, SV & ACB, Shimla-2 on the basis of inquiry report of Dy. Superintendent of Police, SV & ACB, Shimla vide letter dated 20.10.2008 directed Dy. Superintendent of Police, SV & ACB, Una for registration of the case. In these circumstances, FIR No. 3 of 2008 was registered. ______________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes. 2 3. The further case of the prosecution is that 365 metric ton of tarcoal was allocated to Himachal Pradesh Public Works Department (HPPWD) Division, Una. The Additional Executive Engineer, HPPWD Una, was to arrange 90 metric ton additional tarcoal from nodal agency Himachal Pradesh Agro Industries Corporation Ltd. (H.P.Agro). H.P.Agro had placed supply order of 3234 drums of tarcoal to Indian Oil Corporation (IOC) / Hindustan Petroleum Corporation Ltd. (HPCL) refinery Panipat for supplying the same to HPPWD Division, Una which were to be transported by M.K.Enterpries, Chandigrh as per agreement. M/s M.K.Enterprises submitted 35 G.Rs to H.P.Agro for payment of transportation charges vide which 3297 drums of tarcoal were allegedly supplied to HPPWD, Una Division. The police took into possession 27 G.Rs / invoices from HPPWD Store Jalgran, Una vide which 2482 drums of tarcoal were received. The Bin Cards were also taken into possession. As per Bin cards Ashok Kumar, Junior Engineer, incharge Store has received 2240 drums of tarcoal. As per goods receipts 2240 drums of tarcoal were received at HPPWD Store, Jalgran, Una. In Public Works Department, senior Junior Engineer is called Additional Assistant Engineer. 4. It has come in the investigation that M/s M.K.Enterprises through 35 trucks had supplied 3297 drums of tarcoal from Panipat to HPPWD Division, Una and the G.Rs/invoices were submitted to H.P.Agro, but as per bin cards (stock) of Public Works Department, Store Jalgran, Una only 2240 drums of tarcoal were received. In this way 1057 tarcoal drums were received less, but Ashok Kumar, Junior Engineer has 3 given receipt of delivery of drums to M/s M.K. Enterprises which indicates that Mukesh Sharma owner of firm M/s M.K.Enterprises and his employees in connivance with Ashok Kumar, Junior Engineer incharge, Store has pilfered 1057 drums of tarcoal and sold the same somewhere. The market value of these 1057 drums of tarcoal is Rs. 57,00,000/-. Ashok Kumar, J.E. was arrested on 2.12.2008 who during interrogation has disclosed that one employee Billa alias Harjit Pal Singh of M/s M.K.Enterpries used to pay him Rs.500/- per drum for obtaining fake receipt. He has also disclosed that for this reason he had issued fake receipts. Ashok Kumar, Junior Engineer has thus received approximately Rs.5,50,000/- bribe money. 5. It has come during investigation that vat form No. 26 of G.Rs 2236, 2265, 2165, 2662, 4154 and 4177 were not issued by Excise and Taxation Barrier, Mehatpur nor these G.Rs were entered at Mehatpur Barrier. This information was given vide letter No. 10974 of Excise and Taxation, Barrier Una. In the same manner, the Additional Assistant Excise and Taxation Commissioner, Solan vide letter dated 29.1.2008 has informed that vat forms were not issued of the aforesaid G.Rs from Baddi and Barotiwala Barriers. Harjit Singh, driver of truck No. HP-20C - 0722 has disclosed that on17.4.2008, 65 drums were unloaded at Jalgran Store Una whereas in the G.R. 95 drums were entered. The signatures of Junior Engineer, Store were obtained on G.R. which was sent to Chandigarh through courier from Tahliwal. Pradeep Kumar, driver of truck No. HP-20A 3499 has disclosed that on 16.4.2008 he loaded 90 drums of tarcoal of M/s M.K. Enterprises, Chandigarh and took them to Jalgran Store. In G.R. 95 drums were written which were five drums less. The Junior Engineer, Ashok Kumar had talked to someone at Chandigarh 4 from where the drum had come. On some G.Rs Forensic Science Laboratory had not found signatures of Junior Engineer Ashok Kumar. The petitioner is to be interrogated in this regard. The G.Rs on which signatures of Junior Engineer, Ashok Kumar were not found belong to petitioner except vehicle No.HR-56-3151. 6. Mukesh Sharma has stated that Billa alias Harjit Pal Singh never worked with him whereas the agreement of Mukesh Sharma with H.P.Agro indicates signatures of one Harjit Pal Singh as witness. Mukesh Sharma was asked to join investigation through his Advocate on 24.6.2009 and 3.7.2009 but he did not join the investigation. Mukesh Sharma and Harjit Pal Singh alias Billa are not joining and co-operating in the investigation. A request has been made for dismissing the bail petition. 7. The learned counsel for the petitioner has submitted that the petitioner has committed no offence. He has been falsely implicated. All the alleged G.Rs were received by Ashok Kumar, Junior Engineer which indicate that transporter had supplied the tarcoal drum. In case after the delivery of tarcoal drums some shortage of drums is found in the stores, then petitioner cannot be made liable for the same. He has submitted that the entire case of the prosecution is documents based and almost all documents have been taken into possession by the police during investigation. The custodial interrogation of the petitioner is not necessary. The petitioner will join the investigation as per directions of this Court. The petitioner is ready to furnish bail bonds as per direction of this Court. He has submitted that no purpose will be served by arresting the petitioner. The petitioner has filed application along with affidavit dated 6.7.2009 alleging therein that Excise and Taxation Officer, Baddi 5 has confirmed certain vat declaration form Nos. which indicates that the truck had crossed the barriers. In the affidavit it has been stated that the E.T.O., Baddi had even confirmed that vide letter dated 30.6.2009 of Excise and Multi Purpose Barrier, Barotiwala, three declaration forms were despatched to concerned authority. The petitioner has already submitted these vat numbers to Superintendent of Police, Una. The reply affidavit dated 7.7.2009 was filed by the respondent and it has been stated therein that 35 G.Rs bears the signatures of Junior Engineer, HPPWD, Una, but signatures on all the G.Rs do not tally with the signatures of Junior Engineer, out of 35 G.Rs, signatures on 13 G.Rs are not of Junior Engineer. It has been stated that six G.Rs were not entered at Multi Purpose Barrier, Mehatpur. 8. The learned Additional Advocate General has opposed the bail application on the grounds that the petitioner in connivance with employees of HPPWD, has caused wrongful gain to himself and wrongful loss of the public money by preparing fake documents. The petitioner as transporter has supplied 1057 less tarcoal drums which has caused loss of Rs.57,00,000/- to the State exchequer. The custodial interrogation of the petitioner is necessary in order to find out the truth, it has to be ascertained where 1057 drums had gone and to whom 1057 drums of tarcoal were sold by petitioner in connivance with employees of HPPWD. The petitioner is not co-operating in the investigation. Billa alias Harjit Pal Singh witness of the agreement and the person who was instrumental in giving bribes to the employees of HPPWD is not available. The petitioner has falsely taken the stand that he does not know Billa alias Harjit Pal Singh. The learned Additional Advocate General has prayed for dismissal of the bail application. 6 9. I have considered the rival contentions of the learned counsel for the parties. The allegations of the prosecution is that 1057 tarcoal drums were short supplied by petitioner who was transporter appointed by nodal agency H.P.Agro for supplying tarcoal drums to consignee HPPWD. The market value of 1057 drums comes to Rs.57,00,000/-. At this stage in all 35 G.Rs are involved. As per the prosecution, atleast on 13 G.Rs the signatures of Ashok Kumar, Junior Engineer are not there as per the report of handwriting expert. The petitioner is seeking bail under Section 438 Cr.P.C. It has been orally submitted on behalf of the respondent on the basis of instructions received that at other places also within Himachal Pradesh there are allegations of short supply of tarcoal drums by the petitioner. In the facts and circumstances of the case, I am of the opinion that petitioner at this stage is not entitled to bail under Section 438 Cr.P.C., resultantly, the application is dismissed. 10. The observations made in this order is for disposal of this application only and the same shall not be treated as expression of opinion on the merits of the case. Cr.M.P. No.204 of 2009 and Cr.M.P.No.403 of 2009. Infructuous. July 9, 2009. ( Kuldip Singh ) (GR) Judge.