Nistar Minz, S/o Late Abraham Minz vs State Of Jharkhand And Ors

Heard, learned counsel for the petitioner and learned counsel for the Vigilance.

Petitioner has prayed for grant of anticipatory bail apprehending his arrest in Special Case No.13 of 2013 arising out of Vigilance P.S. Case No.12 of 2013 registered for the offence under Sections 420, 467, 468, 471, 409 and 120(B) of the Indian Penal Code and under Section 13(2) read with Section 13(1)(c)(d) of the Prevention of Corruption Act, 1988.

Learned counsel for the petitioner has submitted that prior to this case a Complaint Case bearing No.2 of 2009 was lodged on 20.01.2009 and pursuant to the direction issued by Special Judge/Vigilance, Ranchi under Section 156 (3) Cr.P.C., the same was registered as Vigilance P.S. Case No. 11 of 2009, corresponding to Special Case No. 15 of 2009 under Sections 406, 409, 420, 423, 424, 465 and 120B of the Indian Penal Code and Sections 11, 12, 13 and 15 of the Prevention of Corruption Act, 1988. Learned counsel for the petitioner has further submitted that on the direction of the Cabinet Vigilance, Preliminary Enquiry Case Nos.36 of 2009 and 46 of 2009 have been instituted and petitioner was directed to file his defence statement vide notice dated 07.04.2011. In compliance of the same, the petitioner has filed defence statement on 14.04.2011. Learned counsel for the petitioner has further submitted that after investigation of the Vigilance P.S. Case No. 11 of 2009, the Vigilance Investigating Officer has submitted charge-sheet vide no.2 of 2012 dated 06.01.2012 against the petitioner, Nistar Minz, the then Director, Agriculture, Jharkhand and others for purchase of seeds causing lose to the Government to the tune of Rs.2,04,73,055/- for their personal benefit though the said seeds were not recommended and approved by Birsa Krishi Vishwavidalaya and thus, the charge-sheet was submitted under Section 406 I.P.C. However, in that case the petitioner has been granted regular bail vide order dated 16.04.2012 passed in B.A. No.946 of 2012 by a co-ordinate Bench of this Court.

Learned counsel for the petitioner has further submitted that after submission of the charge-sheet no.2 of 2012 dated 06.11.2012 in connection with Vigilance P.S. Case No.11 of 2009 (Special Case No.15 of 2009), the second FIR has been lodged by the Vigilance Police Station, which has been registered as Vigilance P.S. Case No.12 of 2013 dated 04.05.2013 (Special Case No. 13 of 2013) under Sections 420, 467, 468, 471, 409 and 120B of the Indian Penal Code and under Section 13(2) read with Section 13(1)(c)(d) of the Prevention of Corruption Act, 1988 for an offence committed from the year, 2003 till date, as such for the same occurrence two FIRs have been lodged as there were two Vigilance inquires bearing Preliminary Enquiry (P.E.) No. 36 of 2009 and 43 of 2009. The present case has been filed against Nalin Soren, the then Minister of Agriculture and Sugar Development Department, Jharkhand, the present petitioner, Nistar Minz, the then Director, Agriculture, Jharkhand, Sri Umesh Gupta, the Managing Director and local Representative of M/s NCCF, Ranchi, the owner of M/s Ausul Agro Chemical, Banglore, Sri Maheshji Sethi owner of M/s Pratik Bio-Tech Company, Madhupur, Deoghar, Sri Amarnath Dalmiya for the occurrence from 2003 till date though petitioner Nistar Minz, took charge as Director, Agriculture, Jharkhand vide Government Notification bearing No. 550 dated 10.03.2007 and superannuated from the said post on 28.02.2009.

Learned counsel for the petitioner has further submitted that the proposal sent by the petitioner in the capacity of Director, Agriculture to purchase inputs from the Government agency was modified by the then Principal Secretary to the extent that in place of registered institution the inputs will be purchased from manufacturing institutions.

Learned counsel for the petitioner has further submitted that in issuing such modification by the Principal Secretary of the Department, petitioner has no role and the Principal Secretary of Department has not been made accused though the petitioner has only followed the directive issued by the Secretariat which are notified after taking approval of the then Minister and once such directive were issued to the Directorate, the petitioner being the Director of the Agriculture Department has no options but to implement the same.

Learned counsel for the petitioner has further submitted that he has taken abundant precaution, the work order has been issued to the selected companies after taking approval of the department. The companies have been selected by the purchase committee and upon approval given by the Principal Secretary such work order has been issued to the selected companies by the petitioner for supply of Micro Nutrients, Vermin Compost, Neem Pesticides, Organic Manure and Bio-Fertilizer. So far as the allegation of insecticides namely, Azardirachtin 300 PPm and 1500 Ppm of being sub-standard product is concerned, the said product is registered by the Central Insecticide Board and registration committee under Government of India, Minister of Agriculture (Department of Agriculture and Co-operation) Directorate of Plant Protection Quarantine and Storage N.H.IV Faridabad (Haryana) 121001, which is constituted under the provision of Section 9(4) of Insecticide Act, 1968.

Learned counsel for the petitioner has further submitted that with regard to the fake challan issued to show the supply of inputs are concerned, it is quite evident from Rajyadesh that Director of Agriculture has been controlling authority while the entire responsibility to implement the scheme has been bestowed upon Joint Director, Agriculture, Ranchi/Hazaribagh/Dumka under the supervision the District Agriculture Officer. The concerned officers had to make supervision and monitoring and to submit a monthly report regarding expenditure incurred by them in course of implementation as the District Agriculture Officer is Drawing and Disbursing Officer. So far the allegation of fake truck number provided in the challan is concerned the same is not conclusive and does not lead to any conclusion regarding involvement of petitioner being Director, Agriculture, Government of Jharkhand.

Learned counsel for the petitioner has further submitted that entire payments have not been made rather only part of payment has been made with respect to supply, which was dully recognized through the proper channel.

Learned counsel for the petitioner has further submitted that after superannuation of the petitioner in month of February, 2009, the present case has been lodged in the year, 2013 and he is co-operating with the investigating officer, as such he may be enlarged on anticipatory bail considering his age.

Learned counsel for the petitioner has further submitted that co-accused, Nalin Soren, the then Minister has been granted anticipatory bail by a Co-ordinate Bench of this Court vide order dated 09.10.2018 passed in A.B.A. No.2735 of 2018 which has been brought on record as Annexure to the Supplementary affidavit.

Learned counsel for the ACB (Vigilance) has vehemently argued the case and has submitted that the petitioner being Director of Agriculture for a short period from March, 2007 to February, 2009 has committed misappropriation of huge amount of Government money and has been made accused in two Vigilance Cases, which are registered as Vigilance P.S. Case No.11 of 2009 (Special Case No.15 of 2009) and the present case i.e. Vigilance P.S. Case No. 12 of 2013 (Special Case No.13 of 2013) for two different transactions. In the present case i.e. Vigilance P.S. Case No.12 of 2013, it has been alleged against the petitioner who was Director of Agriculture Department that in order to gain benefit to himself and also benefited the higher officers of the Department concerned, the petitioner being Director was Instrumental in purchase of Vermi Compost, Organic Manure and Micro Nutrients etc. from the Government fund. These purchases have been made against the provisions of the rules of the Government for illegal gain. The compost was to be purchased for Rs.5,76,61,100/-. The State of Jharkhand has prescribed that for any purchase of more than Rupees Five Crores, approval of 'Council of the Ministers' of the State is essential and the Departmental Minister is only empowered to give sanction for the purchase up to Rupees Five Crores. The petitioner has played an active role in bifurcation of plan and splitting the same is three parts i.e. (i) Rs. 2,26,48,400/-, (ii) Rs. 2,10,90,600/- and (iii) Rs.1,39,22,100/-, which was against the Resolution (Sankalp) of Government of Jharkhand vide No. Finance 4-181-2001-5703 dated 01.10.2002. Similarly during the Financial Year, 2008-2009 the said amount of Rupees Eight Crores were split up in different amounts, so that illegal purchase would be facilitated without Cabinet approval.

Learned counsel for the ACB (Vigilance) has further submitted that in course of inquiry as well as investigation of the case it was found that is scheme Nos.64, 65 and 66 dated 19.11.2007 and scheme Nos. 5, 6 and 7 dated 22.07.2008, huge Government amount has been defalcated by the petitioner and other named accused persons, during purchase of several materials in the Agriculture Department from the Government fund and several anomalies were made in the said purchase. The accused persons were instrumental in purchase of sub-standard material from the agency of their own choice against the rule of Government for illegal benefit and thereby, he misused his official position and adopted corrupt practices.

Learned counsel for the ACB (Vigilance) has further submitted that during investigation it was revealed that M/s Pratik Bio-Tech Company, Madhupur, Deoghar has supplied Vermi Compost and Pesticides without quality test of material prior to supply nor the same was in accordance with the Fertilizer Control order. The Vermi Compost supplied by the said firm was of sub-standard. A large scale of embezzlement of Government fund has been made in connivance with these officers including the petitioner who was Director, Agriculture at the relevant time by producing fake challan/bills to facilitate payments. M/s Pratik Bio-teck Company, Madhupur, Deoghar has raised bills regarding supply of Vermi Compost in thousand tones, which were either not supplied or supplied in very lesser quantity than claimed. Not only this, the vehicles shown for transportation of Vermi Compost as claimed by the supplier are actually not by truck, but the same has been certified by the concerned District Transport Officer to be Motorcycle or Maruti car. Even fake registration numbers have been mentioned, whose owners have denied the same. Several numbers which were shown in challans are found to be of motorcycle and maruti car.

Learned counsel for the ACB (Vigilance) has cited some of the examples i.e. 114 bags (57 quintals) of Vermi Compost was transported by truck No. JH02C-2121 as per the challan but on verification the same was found to be registration number of a Maruti Car. Similarly with regard to challan no. P.B.C./444/08-09 dated 12.01.2009, the same was also found to be of a Maruti Car. Similarly with respect to the vehicle no.JH02B-1738 shown as truck in challan no. P.B.C./433/08-09, which was found to be of motorcycle. Even the vehicle number of truck JH15ZC-0152 was shown in the challan no.P.B.V./310C/08-09 dated 04.12.2008 as truck but as per the report of the District Transport Officer, no such vehicle has been registered bearing Registration No. JH15ZC-0152. Another example has been quoted where the owner of the vehicle bearing Registration No. JH01W-6266 and JH01T-2187, Sri Mahesh Prasad has categorically stated before the investigating officer that both of his trucks were not hired by M/s Pratik Bio-teck Company, Madhupur, Deoghar for transportation of Vermi Compost from Madhupur (Deoghar) to Giridih, Pirtand Block and Ranchi, Raniya and Torpa Block. Similarly the owner of truck No.JH01J-4099, Bhibhuti Bhushan Singh and owner of truck no.JH01V-7827, Sri Vijay Yadav and owner of truck no.JH01T-7995, Sri Umesh Jaiswal have also stated before the investigating officer that their trucks have never been hired by M/s Pratik Bio-Tec Company, Madhupur, Deoghar for transportation of Vermi Compost.

Learned counsel for the ACB (Vigilance) has further submitted that this petitioner cannot be absolved from his responsibility that unqualified suppliers have supplied sub-standard materials without proper verification and a sum of Rs.494 Lakhs and 461.81 Lakhs have been withdrawn and payments have been made to the suppliers causing wrongful loss to the Government in several crores.

Learned counsel for the ACB (Vigilance) has thus, submitted that both the F.I.Rs. are with respect to two different offence committed by the petitioner with regard to purchase of seeds and with regard to purchase of manure respectively.

Learned counsel for the ACB (Vigilance) has further submitted that the then Principal Secretary, Agriculture Department, Mr. A. K. Sarkar was not instrumental rather in supply order regarding purchase of agricultural equipment, Vermi Compost, Micro Nutrients etc., this petitioner, Mr. Nistar Minz being the Director, Agriculture Department was instrumental and the entire purchase order have been made and the same has been passed at his own level. Unqualified suppliers have supplied sub-standard materials and without proper verification, a huge amount has been withdrawn and payments have been made to the suppliers causing wrongful loss in several crores of rupees in contravention of the Letter No.3/Krishi Rajya Yojna/06/2008-05, Ranchi dated 22.04.2008 issued vide Memo No.5, dated 22.04.2008.

Learned counsel for the ACB (Vigilance) has further submitted that the Agriculture Minister has been granted privilege of anticipatory bail on the ground that he has directed that the said "Expression of interest" be cancelled and a fresh "Expression of interest" be published as per the aforesaid Rajyadesh, as mentioned in Para-29 of the said order dated 09.10.2018 passed in A.B.A. No.2735 of 2018 by a Co-ordinate Bench of this Court, but in the present case, file was routed in contrary to the direction issued by the Hon'ble Minister. The petitioner being the Director of the Agriculture Department has played active role in connivance with his subordinates and managed to forward note-sheet against the order of the Hon'ble Minister, as such, the petitioner does not deserve to be enlarged on anticipatory bail, as he is accused in two Vigilance cases namely of Vigilance P.S. Case No.11 of 2009 and the present case i.e. Vigilance P.S. Case No.12 of 2013.

Having heard learned counsel for the petitioner, Mr. Rajiv Sinha assisted by Mr. Ajit Kumar, Advocate and Mr. T. N. Verma, learned counsel for the Vigilance and perused the materials brought on record.

From perusal of the same, it appears that three fold allegations are levelled against the petitioner being Director of the Agriculture, (i) the correction in the 'Expression of Interest' by adding some clause, particularly Clause No.10 (ii) with regard to supply of inferior material and (iii) with regard to illegality in payment of the amount to the fake suppliers.

From perusal of the same, it appears that the note-sheet brought on record by way of supplementary affidavit shows that the "Expression of Interest" was published according to the direction of the Hon'ble Minister and the necessary amendments were incorporated by the Department which originates from the level of Accountant, Section Officer and routed through Directorate and the Principal Secretary of the Department before taking final approval by the Minister.

In the present case, the Principal Secretary and the other officers who have dealt the file, such as, Section Officer and Accountant and the Principal Secretary, have not been arrayed as an accused rather only the Hon'ble Minister and the petitioner (Director of Agriculture) has been arrayed as an accused. It appears that as per 'Rajyadesh' no.65, Scheme was under the control of the Director, Agriculture and the payment has to be made on the basis of certification issued by the Joint Director and District Agriculture Officer with respect to the concerned Districts. Nowhere it has been argued by the learned counsel for the A.C.B. that till date, any of the District Agriculture Officer or Joint Director have been made an accused. Even if fake supply orders are taken note, then Director sitting in the Directorate cannot, doubt the document forwarded by the District Agriculture Officer and Joint Director, who have not been arrayed as an accused in this case. Director was thus, compelled to release the fund as certification of supply for the same which has been issued in favour of the suppliers by the District Agriculture Officer and Joint Director, who have not been made accused.

After hearing the learned counsel for the parties and from perusal of the records, subsequently during Vigilance enquiry, it transpires that the vehicle used by the suppliers are either fake, fictitious or non-existence before the Regional Transport Authority. In some cases, registration number of scooter, maruti car have been found instead of truck and in some of the cases, the registration numbers are fake. Even the owners of some of the vehicles whose registration number has been used as the vehicle for supply, have categorically denied that their vehicles have never been taken for supply of goods, but once the District Agriculture Officer who receives such supply of goods, gives such certification regarding supply of the same and the same is also attested by the Joint Director, who have not been arrayed as an accused, as such, the Director cannot be fastened with entire liability.

From perusal of the same, it appears that entire investigation has been done in a perfunctory manner by taking the statement of present Director, Agriculture, Jata Shankar Chaudhary in Para-160 of case diary, who has not whispered a single line that how this petitioner being the then Director of Agriculture has acted in contravention of any Government circular/ letter in connivance with the suppliers. After going through the entire records, the learned counsel for the A.C.B. has failed to point out that any case has been instituted against the petitioner with regard to disproportionate asset which is the basis of allegation made in the First Information Report. It appears that this petitioner was already taken into custody in connection with Vigilance case No.11 of 2009 in which he has been granted regular bail. He is co-operating with the investigating officer and there is no allegation that this petitioner has not co-operated with the investigating officer.

This Court has also verified the fact from the counsel for the A.C.B. who has submitted that the entire amount has not been disbursed and only Rs.1,67,23,000/- approximately has been disbursed and the Department has not taken any step for recovery of the same against the erring officer till date and none of the District Agriculture Officer has been made as an accused except the petitioner who was the Director of Agriculture, as the investigation continues for more than six years though the preliminary enquiry was instituted in the year 2009.

Under the aforesaid circumstances, when the Principal Secretary of the Department and other officers including the Joint Director, District Agriculture Officer, Account Officer and Section Officer have not been arrayed as an accused in the present case which has been instituted in the year 2013 and till date in the year 2019, as submitted by both the parties it is a fit case where the petitioner deserves to be enlarged on anticipatory bail when Hon'ble Minister has already been enlarged on anticipatory bail by a co-ordinate Banch of this Court.

Accordingly, the petitioner is directed to enlarged on anticipatory bail since the co-accused, Minister has already been granted anticipatory bail by a Co-ordinate bench of this Court which has not been assailed by the A.C.B. before the competent court of law, as such, the petitioner is also entitled for grant anticipatory bail.

Accordingly, petitioner named above is directed to be released on anticipatory bail in the event of his surrender/arrest withing four weeks from today, on furnishing bail bonds of Rs. 1,00,000/- (Rupees One Lakh) with two sureties of like amount each to the satisfaction of learned Special Judge, Vigilance, Ranchi in connection with Special Case No.13 of 2013, arising out of Vigilance P.S. Case No. 12 of 2013, subject to the conditions as laid down under Section 438(2) Cr.P.C. and subject to the condition that one of the bailors must be government servant and one of them must be close/blood relative and subject to further condition that petitioner as well as his bailors shall furnish their mobile numbers and they shall not change their mobile numbers as well as residential address without prior permission of learned trial court.