Crl.Misc.No.M- 1421 of 2009 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh Crl.Misc.No.M- 1421 of 2009 (O&M) Date of decision: 20 .01.2009 Amresh Jain ......Petitioner Versus State through CBI, Chandigarh .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.J.S.Bedi, Advocate, for the petitioner. **** SABINA, J. Petitioner Amresh Jain has filed this petition under Section 482 of the Code of Criminal Procedure for quashing of FIR No.08 dated 21.2.2002 (Annexure P-1) registered under Section 109 of the Indian Penal Code, 13 (1) (e) read with 13(2) of the Prevention of Corruption Act, 1988 at Police Station CBI/SPE/ACB, Chandigarh, order of framing charges dated 6.6.2006 (Annexure P-2) passed by the learned Special Judge, CBI, Patiala (Punjab) and all subsequent proceedings arising in pursuance thereof. Prosecution case, in brief, as mentioned in the First Information Report (Annexure P-1) is as under:- “Information has been received from reliable sources that Shri Amresh Jain, Deputy Commissioner of Customs (CFS), Ludhiana joined service as Asstt. Commissioner on 11.10.1992. After completion of basic training he remained posted at the following places:- Crl.Misc.No.M- 1421 of 2009 (O&M) 2 (i) Asstt. Commissioner, Central Excise, Patiala (18.5.1994 to 11.7.1996) (ii) Asstt. Commissioner, Preventive, Chandigarh ( 11.7.1996 to 8.8.1997) (iii) Deputy Commissioner, Central Excise, Ludhiana (8.8.1997 to 10.11.1998) (iv) Deputy Commissioner, (AS), Amritsar (10.11.1998 to 23.6.2000) (v) Deputy Commissioner, (CFS), Ludhiana ( 23.6.2000 till date). During this period he has been indulging in corrupt activities. Shri Arun Kumar Singhal, Inspector, Central Excise (Preventive) Chandigarh-I Commissionerate, Sector 17, Chandigarh has been actively aiding/abeting Shri Amresh Jain, Dy.Commissioner in investing money acquired by corrupt means in the acquisition of built up Industrial Shed No.183, Industrial Area, Phase-II, Chandigarh measuring two kanals having acquisition value of Rs.80 lacs. The said shed was acquired by four separate general power of attorney dated 3.12.2001 in the name of accused Amresh Jain, his wife Smt.Sushma Jain, accused Arun Kumar Singhal and his mother Smt.Kanta Devi. Accused Amresh Jain has invested Rs.40 lacs in acquiring the said shed with active Crl.Misc.No.M- 1421 of 2009 (O&M) 3 connivance of accused Arun Kumar Singhal, who is also holding half share in the said shed. Further Shri Amresh Jain has invested Rs.23,000/- in Divya Shakti Shatal, Coop. Group Housing Society Ltd., Panchkula in Nov. 1998. Total pay of accused Amresh Jain = Rs. 11,45,081/- 1/3 unverifiable expenditure on (-) Rs. 3,81,693/- house hold kitchen expenses Rs. 7,63,388/- Sale process of flat in CGEHWO Sector 51, Noida in June-July (+) Rs. 5,00,000/- 2001 by accused Amresh Jain Savings of Smt.Sushma Jain w/o (+) Rs. 3,00,000/- accused Amresh Jain who is allegedly employed with M/s Atul Publicity Pvt. Ltd. Bhopal since 1996 and is getting Rs. 4,000/- _______________ per month. Total income = Rs. 15,63,388/- ________________ Total value of assets : Rs. 40,23,000/- total Income (-) Rs. 15,63,388/- ________________ Disproportionate Assets held Rs. 24,59,612/- by accused Amresh Jain ________________ Information further discloses that accused Amresh Jain has also acquired some other prime properties in and around Chandigarh with the active connivance of accused Arun Kumar Singhal. The above facts disclose commission of offence punishable under Section 109 IPC, 13 (1) (e) r/w 13 (2) PC Act, 1988. A regular case is, therefore, registered and entrusted to Shri H.R.Chopra, Deputy Superintendent Police, CBI, SPE, Chandigarh for Crl.Misc.No.M- 1421 of 2009 (O&M) 4 thorough investigation.” Learned counsel for the petitioner has submitted that the criminal proceedings initiated against the petitioner were nothing but abuse of process of law. The Sanctioning Authority, while passing the order of sanction, did not take relevant documents into consideration. A draft sanction order was produced before the Sanctioning Authority by the Central Bureau of Investigation and the sanction order was passed by the authority without application of mind as per the draft sanction order. Even the mistakes mentioned in the draft sanction order had not been corrected in the sanction order. During the course of arguments, learned counsel for the petitioner restricted his prayer that the Sanctioning Authority be directed to pass a fresh sanction order after taking into consideration the entire material on record. He has placed reliance on the decision of the Apex Court in Parkash Singh Badal and another vs. State of Punjab and others, 2007 (1) RCR (Criminal) 1, wherein it was held that law required that before the Sanctioning Authority material must be placed so that the Sanctioning Authority can apply its mind and take a decision. Whether there is an application of mind or not would depend on the facts and circumstances of each case and there may not be any generalized guidelines in that regard. Learned counsel for the petitioner has also placed reliance on the decision of Apex Court in Venkata Subbarao vs. Crl.Misc.No.M- 1421 of 2009 (O&M) 5 State, 2007 (1) RCR (Criminal) 519, wherein, it was held that where vital documents showing involvement of accused were not produced before the Sanctioning Authority, then the Sanctioning Authority did not have any occasion to apply its mind to the entire materials on record and in that view of the matter, the sanction was vitiated and conviction of the appellant was set aside. Learned counsel for the petitioner has further placed reliance on the decision of the Apex Court in Mohd. Iqbal Ahmad vs. State of Andhra Pradesh, AIR 1979 SC 677, wherein it was held that it was incumbent on the prosecution to prove that a valid sanction had been granted by the Sanctioning Authority after it was satisfied that a case for sanction has been made out constituting the offence. Learned counsel for the petitioner, during the course of arguments, has also made reference to the Annexures attached with the writ petition to substantiate his submission that the Sanctioning Authority had failed to apply its mind, while passing the sanction order. In the present case, the FIR has been registered against the petitioner on the allegations that he was having property disproportionate to his assets. The total income of the petitioner, during the check period i.e. from 11.10.1992 to 27.2.2002, was found to be Rs.20,98,263/-, whereas, the investigation, inter alia, revealed that the petitioner had incurred an expenditure of Crl.Misc.No.M- 1421 of 2009 (O&M) 6 Rs.8,85,261/- in his own name during the check period and he had acquired assets worth Rs.1,09,36,282/- in his own name. Investigation also revealed that during the search conducted in this case, Rs.53 lacs were recovered from a bank locker maintained at Punjab National Bank, Rampur (UP) in the name of the petitioner and his father. The said locker, after it was opened on 14.2.1998, had already been operated by the petitioner. Investigation further revealed that 42 Govt. currency notes packets amounting to Rs.28.50 lacs bore stamped bank slips of various banks of Ludhiana and nearby places where the accused was posted since the year 2000. Investigation also revealed that cash of Rs.13.50 lacs and jewellery valuing Rs.1,18,603/- were recovered from locker No.296 maintained at Punjab National Bank, City Branch in the joint name of the petitioner and his parents. A sum of Rs.10.50 lacs were also recovered from the bank locker maintained by the petitioner and his wife with Bank of Punjab, Karol Bagh, New Delhi. The total income of Sushma Jain, wife of the petitioner, from 1997 to 2002 was Rs.12,83,650/-. She incurred expenditure of Rs.2,14,093/- during the check period in her name and acquired assets worth Rs.51,66,149/-. Investigation further disclosed that Sushma Jain has 50% share in Industrial Area, Phase II, Chandigarh in plot measuring two kanals. Cash worth Rs. 17 lacs and gold jewellery worth Rs.2,96,178/- were recovered from bank locker No.546 maintained in Punjab National Crl.Misc.No.M- 1421 of 2009 (O&M) 7 Bank, City Branch, Rampur (UP), which was in the joint name of Sushma Jain and the petitioner. The said locker had also been operated by the accused on four occasions after it was opened. Minor daughter of the petitioner also acquired assets worth Rs.16,87,848/- during the check period, although she had no resources of her own. Challan in this case has been presented and charge was framed against the petitioner on 6.6.2002. Now the case is pending for prosecution evidence. Sh.R.C.Dhankar, Sanctioning Authority, has been examined as PW-1. His statement is annexed as Annexures P-1 and P-10. A question, which was posed to PW-1 during cross-examination, as well as its reply are reproduced herein- below:- “Q: Can you deny the fact that the sanction order issued in this case, is ditto copy of the draft sanction order sent by the CBI to your department without any addition or deletion? A: The draft sanction order is processed by our department and wherever changes are required, those are carried out. However, if the contents of the draft sanction order are found to be correct and acceptable to the Sanctioning Authority, then it is signed as such.” A draft sanction order and sanction order are annexed as Annexures P-11 and P-12 respectively. Whether the sanction order Crl.Misc.No.M- 1421 of 2009 (O&M) 8 has been passed with due application of mind or not and what is its effect, would more appropriately be gone into and considered during trial. At this stage, it is not proper for this Court to examine the testimony of PW-1 to find out whether the sanction order has been passed with due application of mind or not. The petitioner by way of this petition has sought quashing of the FIR. He did not challenge the sanction order when it was passed by the Sanctioning Authority. There is no quarrel with the proposition of law settled vide the judgments relied upon by the learned counsel for the petitioner but the same fail to advance the case of the petitioner as they are on different facts. Each case is based on its own facts. In the present case the petitioner, during investigation of the case, was found to be in possession of assets much more than his known source of income. The Sanctioning Authority, after going through the draft sanction order and the relevant material produced before it, has granted sanction for prosecution of the petitioner. The trial is going on. At this stage, no case is made out for quashing of the FIR. Hence, there is no force in the contentions raised by the learned counsel for the petitioner. Accordingly, this petition is dismissed. (SABINA) JUDGE January 20, 2009 anita