The petitioner has filed this Public Interest Litigation as he felt that inspite of large scale corruption, there is no proper investigation in the High Speed Diesel (HSD) scam involving officers and employees of the Government and Government Undertakings. The petitioner was not able to understand the attitude of the investigating agency as to why the culprits are not dealt with in accordance with the Criminal Procedure Code, 1973.
In view of the large scale scam, public exchequer has suffered a lot and some persons by committing offences have enriched themselves. It appears that Investigating Officer during his investigation found that the factories supplied with HSD infact are not in existence. Some of them are fake and existing on paper only.
It is reported to us that there is large scale scam. It is pointed out to us that the industrial units which were allotted HSD quota for getting HSD on concessional rates were required to fulfill the requirement and formalities and submit certain documents such as Sales Tax Registration Certificate under the State Sales Tax as well as Central Sales Tax Act, Explosive Licence, No Objection Certificate of Pollution Control Board and other particulars of the firm, its officials, owners/signatories etc. On receipt of the application, Oil Companies were granting adhoc allotment for trial run of the factory. During the trial run, inspection of plant and machinery was required to be carried out by Technical Evaluation Committee (TEC) of the Oil Companies. It is only after the TEC issues a certificate about the capacity of consumption and storage etc. regular allocation of HSD is to be granted. Thus, first adhoc quota is granted, and after inspection of the TEC and its report, regular quota is to be granted, and not before that. Even the quota was required to be fixed by the said Committee on the basis of inspection. It is pointed out to us that out of the total 50 firms/persons lifting HSD, only 6 firms/persons have been allotted quota of HSD by the TEC. The TEC allotted only 1 such firm/person in Gujarat, and 5 in Maharshtra. However, during the investigation it has been revealed that nearly 50 such firms/persons were lifting HSD without allocation by the TEC. It is also pointed out to us that even the aforesaid six firms/persons were not utilizing the HSD for their own manufacturing use and were diverting the same in the open market for their illegal gains. It is also stated that even these six firms/persons have closed the manufacturing activities since many years. Thus, at concessional rates, in the name of fake firms, quota of HSD was lifted and the State is deprived of huge amount. From the investigation it appears that there is fraud to the tune of Rs.100 Crores during 1997 to 2000. After calculations by the CBI, we are told that the amount has increased from 100 Crores to 150 Crores of Rupees, and this figure may go higher after thorough investigation.
It appears to us that the investigating officer of the CBI is not given a free hand in the investigation. Chapter XII of the Cr.P.C. refers to information to police and their power to investigate. When a cognizable offence has been committed, the offence is required to be investigated by the Investigating Officer of the concerned Police Station. Procedure is prescribed for investigating. Sec. 165 empowers the police officer to carry out search if he has a reasonable ground for believing the anything necessary for the purpose of investigation into any offence which he is authorised to investigate may be found in any place within the limits of the police station of which he is in charge or to which he is attached. Search is required to be conducted in person. The police officer may ask another officer to carry out the search. Section 156 of the Cr.P.C. empowers the police officer to investigate cognizable case. He is also entitled to arrest a person against whom there is reasonable belief that he is involved in the offence which is cognizable.
In the instant case, grievance made by the petitioner is that despite unearthing the racket, the investigating officer has become quiet after some stage, and the investigation is not proceeding in the way it ought to proceed.
Grievance made by the Investigating Officer is that despite writing letters to Commissioner of Sales Tax, Ahmedabad, specifically mentioning in the summons that under section 91 of the Cr. P.C. certain documents are required, the same are not produced. On behalf of the State, Mr. Oza, learned Government Pleader submitted that certain documents have been furnished. It is directed that the Commissioner of Sales Tax shall satisfy the Investigating Officer that the documents which he has produced are the documents as mentioned in the letter and he shall see that a proper and authorised officer appears before the Investigating Officer with all necessary documents. If the Investigating Officer calls for further documents, it will be the bounden duty of the State and its officers to assist the Investigating Officer by remaining present and by producing the documents as may be required for investigation. It is directed that the Sales Tax Department shall give all assistance and co-operation to the investigating officer.
It is further stated that out of 105 persons, only 43 persons have attended before the Investigating Officer and the remaining are not co-operating. In the report it is submitted that officers of certain Government Companies and officers of the Government are not appearing before the Investigating Officer despite the messages which were sent by hand or by fax or by Registered AD. There are persons other than Government servants and working in the Companies engaged in business. There are some officers, who, despite issuing notice under section 160 of the Code, are not attending before the Investigating Officer. Thus, it is clear to us that the persons whose names are referred to in the Annexure are wilfully not co-operating with the investigating officer. If such is the situation, if the arms of the investigating officer are tied down, he may not be in a position to investigate. Some may leave the territory and some, who are in the Government offices, may play mischief with the Government records as a result of which further fraud may not be detected and the person concerned may try to destroy the evidence. It is under this circumstances it is directed that the investigating officer shall not be restrained by any agency when he is investigating a cognizable offence involving huge amount. It is required to be noted that the police officer investigating a cognizable offence can arrest the person. He has to exercise his discretion in arresting the person. The discretion given to him by the legislature cannot be controlled by any other agency - even his superior officer. If the person is investigating, then it is for that person to carry out the investigation in accordance with the provisions contained in the Cr. P.C., and no outside force can control the power of investigation unless the powers are exercised arbitrarily or are abused. Here it is not the case that the Investigating Officer is not investigating the offence in accordance with law. According to the investigating agency, there is sufficient material to arrest offenders. It would be for him to book the offender and to do the needful in the matter. He shall report to this Court further progress in the investigation.
S.O. to 27th September 2000.
( B.C. PATEL, J. ) csm./(P.B. MAJMUDAR, J.)