IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF AUGUST 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.3048 OF 2017 BETWEEN:
SRI. CHETAN SHAH S/O NAVNITLAL SHAH AGED ABOUT 62 YEARS, MANAGING DIRECTOR M/S ASHAPURA MINECHEM LTD., JEEVAN UDY0G BUILDING, 3RD FLOOR, 278, FORT ROAD, MUMBAI 400001 ... PETITIONER (BY SRI: RAVI B.NAIK, SENIOR COUNSEL A/W SRI: K.B.MONESH KUMAR, ADVOCATE) AND CENTRAL BUREAU OF INVESTIGATION ANTI CORRUPTION BRANCH REP BY ITS SPECIAL PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BLDG, BENGALURU 560001 ... RESPONDENT (BY SRI: P PRASANNA KUMAR, SPL.PP) THIS CRL.P FILED U/S.482 CR.P.C PRAYING TO QUASH THE ORDER DATED 21.12.2016 PASSED BY XXXII ADDL. CITY CIVIL AND S.J., AND SPL. JUDGE FOR CBI CASES, BANGALORE (CCH-34) IN SPL.C.C.NO.15/2014 IN THE SAID CASE AND DISCHARGE HIM FROM THE ABOVE SAID CASE FOR OFFENCES PUNISHABLE UNDER SECTIONS 120B R/W 409,420 OF IPC AND FOR OFFENCES U/S 13(2) R/W 13(1)(C)(D) OF P.C ACT.
THIS CRL.P COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R This petition is by accused No.3 for quashing of the order dated 21.12.2016 passed by the XXXII Additional City Civil and Sessions Judge and Special Judge for CBI cases, Bangalore in Special C.C.No.15/2014. By the said order the application filed by the petitioner under sections 239 r/w. 227 of Cr.P.C. has been dismissed.
2. Heard learned Senior Counsel appearing on behalf of the petitioner/accused No.3 and the learned Special Public Prosecutor appearing for the respondent/complainant.
3. Facts of the case in brief are recapitulated as under :-
The Hon’ble Supreme Court, in W.P.(Civil) No.562/2009 filed by the NGO Samaj Parivarthana Samudaya, appointed a Central Empowered Committee (hereinafter referred to as ‘CEC’) to conduct detailed enquiry into the illegal mining activity carried out in Karnataka. The CEC submitted a detailed report before the Apex Court in part II dated 27.4.2012 and supplementary report dated 5.9.2012 about the illegal export of iron ore from Belekeri Port. On consideration of the said report by order dated 7.9.2012 the Apex Court was pleased to direct the respondent/CBI to institute FIR(s) and to investigate cases not only relating to illegal extraction of iron ore and its illegal transport but also relating to illegal transport of 8 lakh tones of iron ore found lying in the Belakeri port which was actually under the order of seizure by the Forest department. The Hon’ble Apex Court while directing the respondent/CBI to register FIRs and investigate the case(s) was pleased to further order that no authority of court shall entertain any challenge to CBI investigation of cases as directed.
4. Pursuant to the aforesaid order passed by the Hon’ble Apex Court, respondent/CBI registered a case in RC No.17A 2012 on 13.9.2012 against A1, the then Port Conservator, Bilikere port and others for the offences punishable under Section 120B r/w. Sections 406, 409, 379, 411, 477 of Indian Penal Code, Section 13(1)(c) and (d) r/w.13(2) of the Prevention of Corruption Act 1988 and Section 24 of Karnataka Forest Act, 1963 and took up investigation and after completion of investigation, a charge sheet/final report was submitted to the Court in Special C.C.No.15/2014 against five accused persons including the petitioner herein for the alleged offences punishable under Sections 120B r/w.409, 420 Indian Penal Code and under Sections 13(2) r/w.13(1)(c) and (d) of the Prevention of Corruption Act (hereinafter referred to as ‘the P.C. Act’ for brevity).
5. In the charge sheet it was alleged that during the year 2009-10, 88 lakhs of metric tones of iron ore was exported by 73 exporters form Belekeri Port. During the same period, permits were issued by the department of Mines and Geology for transporting only 38 lakhs tones, showing Belekeri as the destination. As such, about 50 lakh tones of iron ore was exported from the said port without the permits by the said department of Mines and Geology.
6. It was further alleged in the Charge Sheet that as on 20.03.2010, M/s Ashapura Minechem Ltd., (Accused No.2) had a stock of 17546.07 MT of iron ore fines in its plot which was allotted by M/s Adani Enterprises Ltd., at Belikere Port. On 26.03.2010 the officials of the Forest Department marked the Cargo of the Petitioner’s company as heap No.2 containing 17546.07 MT of iron ore. It was further alleged that between 21.03.2010 and 31.05.2010 the Petitioner’s company further brought 11737.67 MT of iron ore and dumped in their plot and sold 27995 MT of iron ore out of total stock of 29283.74 MT to Sri. Mallikarjuna Shipping Pvt. Ltd., (Accused No.4) including 17546.07 MT of iron ore which was seized by the Forest Department. It is further alleged that the above said illegal sale of seized iron ore was done with knowledge and authorization of the Petitioner herein being Managing Director of the Accused No.2 M/s Ashapura Minechem Ltd.
7. It was further alleged in the charge sheet that M/s Ashapura Minechem Ltd., (Accused No.2) issued delivery orders dated 03.05.2010 and 25.05.2010 for iron ore of 27000 MT and 1000 MT respectively in favour of Accused No.4 Sri Mallikarjuna Shipping Pvt. Ltd., and issued two invoices dated 31.05.2010 for Rs.14,04,00,000/- towards cost of 27000 MT of iron ore fines and for Rs.41,54,125/- towards cost of 995 MT of iron ore fines and received sale proceeds of Rs.7,04,00,000/- and Rs.41,75,000/- through RTGS from Sri.Mallikarjuna Shipping Pvt Ltd., exported the said iron ore to Hongkong without getting the clearance from the concerned authority.
8. It is further alleged in the charge sheet that Ashapura Minechem Ltd., the Company (Accused No.2) had filed Writ Petition No.14552/2010 seeking for a direction to Port & Forest authorities to release 17549.080 MT of iron ore, the Hon’ble High Court vide its order dated 04.05.2010 directed the Port and Forest authorities to release the said iron ore subject to satisfactory verification of the documents, however, without getting the documents verified by the Forest Department and without getting clearance sold the said iron ore to Sri.Mallikarjuna Shipping Pvt. Ltd. (Accused No.4) and later on 26.06.2010 the Petitioner’s company withdrew the said writ petition by wrongly mentioning that they could not export the iron ore from Belikere Port since it was closed due to monsoon.
9. The grievance of the petitioner is that initiation of the proceedings against the petitioner for the offences is improper, illegal and without application of mind. The petitioner Company is the bona fide purchaser and the owner of the iron ore purchased by it and the petitioner has not purchased the same in any illegal manner. The Company had purchased iron ore from various sources, from Mines in revenue as well as forest land holding valid permits from the department of Mines and Geology bearing permit No.142711, 142757, 142965 and 143087. As such, the transaction of the petitioner Company cannot be termed as illegal as alleged in the charge sheet. The Forest Department had caused seizure of the iron ore which was stocked in Belikere Port including the iron ore belonging to the petitioner-Company weighing 17.549.080 MT without conducting the mahazar. The purported seizure was in gross contravention of the Articles 2.42 and 2.42.1 of the Foreign Trade Policy of India. The petitioner-Company filed writ petition bearing No.14552/2010 before the Hon’ble High Court seeking for a direction for the Forest Department and Port Conservator to release the iron ore in favour of the petitioner-Company. Under the said circumstances, the allegations made in the charge sheet against the petitioner insofar as it relates to the offences punishable under Sections 409, 420 of Indian Penal Code are absolutely false. The nature of the transaction is not one of export, as far as accused No.3/petitioner herein is concerned, but is one of a local trade. When the Company had no interaction with regard to Port Conservator in this regard, question of Company or A3 offering any inducement to A1 or entering into conspiracy with A1 does not arise. No goods has been entrusted to A3 and as such, the allegations of breach of trust invoked against the petitioner also cannot be sustained. The petitioner company had purchased iron ore through legal channels through authenticated documents. As such, there would be no fraudulent or dishonest inducement to deliver any property so as to attract any offence under Section 420 of Indian Penal Code. On these grounds the petitioner moved an application under Sections 239 r/w.227 of Cr.P.C.
10. In the course of argument learned Senior Counsel has canvassed his submission on two issues; firstly, it is contended that the CBI had no jurisdiction to investigate into the export or transportation of iron ore less than 50,000 MT. The second contention urged by the learned Senior Counsel is that in respect of the same offence, a second charge sheet was filed in Special C.C.No.15/2014 which is not tenable in the eye of law. Submission of the learned counsel is that the SIT having investigated into the very same offence and having laid charge sheet in C.C.No.189/2010, the submission of the second charge sheet is violative of Article 20 of the Constitution of India. In support of his argument, learned Senior Counsel has placed reliance on the decision of the Hon’ble Supreme Court of India in the case of Anju Chaudary – vs – State of Uttar Pradesh and Another reported in (2013) 6 Supreme Court Cases 384.
11. Respondent-CBI has filed a detailed statement of objection disputing the contentions raised by the petitioner. The learned counsel for the respondent referred to the very charge sheet submitted by the CBI in R.C.No.17A of 2012 and has pointed out that the FIR was registered pursuant to the orders of the Hon’ble Supreme court of India dated 7.9.2012 in W.P.(C) No.562/2009. Relevant portion of the said order reads as under :-
“It may be noted at this stage that out of the aforesaid quantity of 50.79 lakh MTs which got illegally exported outside the country, over 8 lakhs MTs iron ore, found lying at Belekeri Port was actually under orders of seizure by the Forest Department authorities and the Court before it was exported in violation not only of different laws but in teeth of the seizure order. The investigation of the case of illegal export over 8 lakh MT iron ore while it was under the order of seizure is recommended at paragraph (IV) at page 14.
As recommended in the report of the CEC the CBI should institute FIR(s) as suggested in sub paragraphs (I) and (IV) at pages 12 and 14 respectively of the report and carry out thorough and intensive investigation including, if so required, custodial interrogation of any accused.
At the same time, the CBI should also conduct preliminary inquiry as suggested in the report of the CEC in sub-paragraphs (II) and (III) at pages 13 and 14 respectively.
Last copies of the CEC reports dated April 27, 2012 and September 5, 2012, be given to the CBI that may form the basic material for institution of FIR(s). It will be open to the CBI to refer to the other reports of the CEO on the issue submitted earlier.
Pursuant to the institution of the FIR(s) by the CBI as directed above, further proceedings in case No.189/2010 investigated by the CB, CID, Karnataka, shall remain stayed. The CID, Karnataka shall hand over all records in regard to that case to the CBI/ All Authorities and Agencies of the Government, including the Income Tax Department shall extent full cooperation to the CBI in its investigation.
It will be open to the CBI to take into account the reports of the Lokayukta as well.
A preliminary report of the investigation should be submitted to the Court within six weeks from today.
If the CBI needs any clarification it will be open to it to approach to this Court in the matter.
It is made clear that no authority or Court shall entertain any challenge to the CBI’s investigation of the case(s) as directed by this Court.
12. Further in the objection statement, learned counsel has referred to the relevant documents collected by CID to show the active involvement of the petitioner in the alleged offences. According to respondent, petitioner herein being the Managing Director of accused No.2 – Company had stacked its iron ore in the premises of M/s. Adani Enterprises Ltd., at Belekeri Port. The order passed by learned Magistrate indicated that the said stocks were actually under seizure and in the custody of learned Magistrate, but the petitioner herein sold the same. It is the further contention of respondent that accused No.1/Port Conservator was entrusted with the dominion over the property in his official capacity by order of JMFC., Ankola, but he in conspiracy with other accused deliberately permitted the accused to illegally export the iron ore which was under order of seizure. The second respondent has referred to the relevant shipping bills and other documents produced along with the charge sheet which reveal that the alleged acts were committed by petitioner herein in conspiracy with other accused and accordingly lifted and shipped the iron ore. In the course of argument, learned counsel has referred to the relevant evidence collected by C.I.D.
in proof of each of the accusations made against petitioner in respect of the offences charged against him. He further contended that after shipping and exporting seized iron ore, accused No.2 withdrew Writ Petition No.14552/2010, thereby establishing the complicity of petitioner in the alleged offence and thus submitted that the learned Magistrate has rightly dismissed the application filed by petitioner under section 239 Cr.P.C., sought to dismiss the petition.
13. I have bestowed my careful attention to the contentions raised by petitioner and have scrutinized the impugned order passed by learned Special Judge which speaks for itself that learned Special Judge has considered the relevant documents and the material produced by the Investigating Agency and having formed the opinion that the material produced along with the charge sheet prima facie disclosed the complicity of the petitioner in the alleged offences and there was sufficient material to proceed against petitioner, found it proper to dismiss the petition.
14. The first and principal contention urged by learned counsel for petitioner that in respect of the same offences, second charge sheet was filed in Spl.C.C.No.15/2014 and therefore, the trial based on the charge sheet laid in R.C.No.17A/2012 is not tenable was not canvassed before the Trial Court. A reading of the impugned order reveals that petitioner claimed discharge on the ground that the material produced along with the charge sheet did not prima facie disclose the involvement of petitioner in the alleged offences and that he has been falsely implicated in the alleged offences.
15. I have gone through the application filed by petitioner under Section 227 of Cr.P.C. Petitioner did not seek for discharge on the ground of a second FIR as contended before this Court. Even though the learned Senior Counsel appearing for petitioner has vehemently argued with reference to the decided case law that second FIR in respect of the same offence is not legally tenable, yet, petitioner has not produced the copy of the FIR in Spl.C.C.No.15/2014 to support his contention that in respect of the very same offence, a second FIR has been submitted. In the absence of any such material, solely based on the oral submission of learned counsel for petitioner, petitioner cannot be discharged. Mere contention urged by learned Senior Counsel cannot be a ground to quash the proceedings or to set aside the well considered order passed by learned Special Judge. Even otherwise the law is well settled that, in order to examine the impact of one or more FIRs, court has to rationalize the facts and circumstances of each case and then apply the test of “sameness” to find out whether both FIRs relate to the same incident and to the same occurrence or the part of the same transaction or relate completely to two distinct occurrences. As held in the very same decision relied on by the learned Senior Counsel in ANJU CHAUDHARY vs. STATE OF UTTAR PRADESH & Another, (2013) 6 SCC 384, “If the answer falls in the first category, the second FIR may be liable to be quashed. However, in case the contrary is proved, whether the version of the second FIR is different and they are in respect of two different incidents/ crimes, the second FIR is permissible, this is the view expressed by this Court in BABUBHAI vs. STATE OF GUJARAT, (2010) 12 SCC 254. This position of law, therefore, makes it clear that merely on the basis of the contention urged by petitioner or his counsels, the case of the prosecution cannot be thrown out nor petitioner can be discharged of the offences based on the said plea unless it is shown that both FIRs relate to the same incident and to the same occurrence. Petitioner having failed to produce two FIRs and having failed to establish that the alleged FIR in Spl.C.C. No.15/2014 arise out of the same incident or in respect of the same transaction, the said plea is liable to be rejected.
16. In the instant case, even assuming that there are two FIRs as contended by learned Senior Counsel, undisputedly, the case has been registered based on the orders passed by the Hon’ble Supreme Court in W.P. (Civil) No.562/2009 which is extracted above. Under the said circumstances, if for any reason there are two FIRs or multiple FIR in respect of same offences, the said plea can be canvassed by petitioner in the said proceedings, but cannot seek to quash the proceedings on that score in the instant case. Therefore, viewed from any angle, I do not find any justifiable ground to accept the contention urged by the learned Senior Counsel in this regard. As a result, this plea is also rejected.
17. Coming to the second contention urged by learned Senior Counsel that the CBI had no jurisdiction to investigate into the export or transportation of iron ore less than 50,000 MT is concerned, even this plea was not set up before the Trial Court seeking discharge under section 227 of Cr.P.C. Undeniably, investigation was taken up by the CBI pursuant to the orders passed by the Hon’ble Supreme Court. I have already extracted the order in the preceding part of the order. Therefore, even this plea cannot be a ground to quash the impugned proceedings or to discharge the petitioner of the alleged offences. As a result, both the contentions urged by the learned Senior Counsel are liable to be rejected and are accordingly rejected.
Consequently, the petition is dismissed.
Sd/- JUDGE Rs Bss