Smt. Nirmala Meena @APPELLANT@Hash State of Rajasthan & Ors.

This anticipatory bail application under Section 438 CrPC is preferred by the petitioner apprehending her arrest in connection with FIR No.306/2017

lodged at Police Station, A.C.B. C.P.S. Jaipur for the offences punishable under Sections 13(1)(C) (D) and 13(2) of the Prevention of Corruption Act,

1988.

Earlier the anticipatory bail application of the petitioner has been rejected by the Special Judge, Sessions Judge (Anti Corruption Act), Jodhpur vide

order dated 12.01.2018.

In the above referred FIR, it is alleged that the petitioner while holding the charge of District Supply Officer (I), Jodhpur (for short 'the DSO (I)'

hereinafter) illegally demanded 35020 quintals of wheat for the purpose of distributing it to the privileged families under the National Food Security Act

by falsely showing number of 33000 families increased in Jodhpur urban area. It is alleged that after receiving 35020 quintals of wheat, the

petitioner sold the same to one Swaroop Singh Rajpurohit, owner of flour mill by making forged bills and as such she earned crores of rupees for

herself and other accused-persons by illegal means. It is further alleged that 35020 quintals of wheat was misappropriated by the petitioner and other

accused-persons and as such the State Government is put to the loss of crores of rupees.

Mr M.S.Singhvi, learned Senior Advocate assisted by his associates has argued that as a matter of fact the allegations levelled against the petitioner

are patently false as no misappropriation of wheat at all took place.

It is contended that as a matter of fact the erstwhile DSO(I), Mr Mahaveer Singh Rajpurohit had failed to distribute the allotted wheat to the needy

families in the month of August, 2015 and deliberately surrendered 35016 quintals of wheat, however, when complaints regarding non-distribution of

wheat to the needy families were made by the public at large and by the public representatives, he was transferred and the petitioner was given

additional charge of the post of DSO(I) in January, 2016. Thereafter, District Collector, Jodhpur instructed her to distribute the wheat amongst the

needy families properly. She found that around 35000 quintals wheat remain undistributed in the previous months and were surrendered, then she

wrote a letter to the Additional Food Commissioner for releasing the surrendered wheat and after receiving it, the same was reallotted to the

wholesalers for the purpose of distribution amongst the needy families.

It is argued that after allocation of the wheat to the wholesalers, the role of the District Supply Officer comes to an end and the responsibility of

proper distribution of the allocated wheat is upon the inspectors.

Learned counsel for the petitioner has urged that after allocation of the wheat to the wholesalers, if it is found that the allocated wheat has not been

distributed amongst the needy families or has not reached out to them, then also the District Supply Officer cannot be held responsible for that. Mr

Singhvi has forcefully argued that the petitioner has acted in the interest of public at large but false allegation of misappropriation of 35020 quintals of

wheat has been levelled against her without any basis.

He has also argued that as a matter of fact the allegation contained in the FIR to the effect that there was no addition of 33000 new beneficiary

families, which are entitled to get the wheat under the National Food Scheme Act, is also baseless. It is contended that as a matter of fact the number

of families increased during the period before the petitioner took additional charge of the DSO (I) and the same is evident from the lists received from

the Municipal Corporation, Jodhpur and the same had been verified by the erstwhile DSO(I). Learned counsel for the petitioner has, therefore,

submitted that it has wrongly been mentioned in the FIR that the petitioner has procured 35020 quintals of wheat by incorrectly stating that 3300

beneficiary families have increased.

Learned counsel for the petitioner has further argued that as a matter of fact 35020 quintals of wheat, which was allocated by her to the wholesalers

was properly distributed and the same can be verified from the lists received from Jodhpur Sahakari Upbhokta Wholesale Bhandar Limited,

Jodhpur. It is contended that out of 35020 quintals of wheat, the petitioner had allotted 25020 quintals of wheat to the Jodhpur Sahakari Upbhokta

Wholesale Bhandar Limited, Jodhpur and 7000 and 3000 quintals of wheat were distributed to the Jodhpur Cooperative Marketing Society, Ltd.,

Panchayat Samities, Luni and Mandore and Kray Vikray Sahakari Samiti Ltd. Baori, Panchayat Samiti Baori respectively. Out of 35020 quintals of

allotted wheat, the Jodhpur Sahakari Upbhokta Wholesale Bhadar Ltd. did not lift 6132 quintals of wheat from FCI Godown and 3056 quintals of

wheat remained in its stock. It is also contended that there is no dispute about distribution of 7000 and 3000 quintals of wheat in Panchayat Samities

Luni, Mandore, and Baori respectively and rest of 15832 quintals of wheat was distributed in Jodhpur City and the same can be verified from the

lists supplied by Jodhpur Sahakari Upbhokta Wholesale Bhandar Ltd. It is contended that looking to the above calculation, not a single kilogram of

wheat has been misappropriated.

It is further argued by Mr Singhvi that this Court after hearing learned counsels for the parties concerned and the officers of the investigating agency

at length, directed the petitioner to appear before the investigating officer for interrogation while restraining her arrest, and pursuant to that, the

petitioner appeared before the investigating officer on 8 to 10 occasions and was thoroughly interrogated and looking to this fact also, there is no

requirement of custodial interrogation of the petitioner.

It is urged that the petitioner is a serving lady IAS Officer and till date cooperated with the investigating agency and there is no possibility that she may

abscond or leave the country and looking to these facts, she is entitled for the benefit of anticipatory bail.

Learned counsel for the petitioner has placed reliance on a decision of Constitutional Bench of Hon'ble Supreme Court rendered in Shri Gurbaksh

Singh Sibbia & Ors. vs. State of Punjab, (1980) 2 SCC 565. He has also placed reliance on orders of Co-ordinate Benches of this Court rendered in

Modaram & Ors. vs. State of Rajasthan, 2015(3) RLW 1840 (Raj.) and in K.K.Mathur vs. State of Rajasthan S.B.Cr.Misc. Bail Application

No.1750/2017, and 7 other connected bail applications.

Per contra, Mr Rajesh Panwar, learned Additional Advocate General has vehemently opposed this bail application and argued that the petitioner is

main accused in misappropriating 35020 quintals of wheat meant for needy and poor people and evidence of this effect is available on record.

It is argued that as a matter of fact number of beneficiary families has never increased as claimed by the petitioner. Mr Panwar has submitted that

there were instructions on the part of the Government that from September, 2015, the ration material can only be given to the beneficiary families on

new ration cards. It is contended that till August, 2015, the Municipal Corporation, Jodhpur did not provide full lists of the beneficiary families, which

are entitled to receive the ration material on the basis of new ration cards. In the absence of verified lists from the Municipal Corporation, Jodhpur in

respect of beneficiary families of Jodhpur urban area, the then DSO(I) Mr Mahaveer Singh Rajpurohit had allocated only 20% of the wheat for the

purpose of distribution of ration material to the beneficiary families in urban area, which had been verified and he also ordered that 35016 quintals of

wheat be surrendered. However, later in subsequent months, when the Office of DSO(I) was in receipt of the verified list of the beneficiary families

of Jodhpur urban area from Municipal Corporation, he ordered for allotting surrendered wheat on 21.09.2015. Learned counsel has submitted that Â

the same can be verified from the concerned note-sheet, which is now seized by the Anti Corruption Bureau.

Mr Panwar has further argued that when 35016 quintals of surrendered wheat had already been distributed by the then DSO(I), the contention of the

learned counsel for the petitioner is not believable that the petitioner wrote a letter to the Additional Food Commissioner for allotting the said

surrendered wheat and after receiving it, she had allotted the same to the wholesalers.

Mr Panwar has further argued that the contention raised on behalf of the petitioner that in January and March, 2016 the number of beneficiary

families was increased by 33000 is also not tenable. It is submitted that the so called letters said to have been issued by the Municipal Corporation,

Jodhpur informing the DSO(I) regarding increase in the number of beneficiary families are forged one. It is submitted that on receiving a complaint

about misappropriation of huge quantity of wheat, a team was constituted to investigate into the complaint by the Food Commissioner, Government of

Rajasthan, Jaipur consisting of Mr Gautam Chand Jain, District Supply Officer (Uparjan) and Mr Shashi Shekhar Sharma, Enforcement Officer,

Jaipur (Rural), who after detailed investigation submitted their report to the Food Commissioner on 19.06.2017, wherein it is concluded that as a matter

of fact, the petitioner has falsely stated in her letter that on account of increasing the number of beneficiary families i.e. 33000, additional wheat

weighing 35020 qunitals is required. It is submitted that in the said enquiry, it is found that the so called letters said to have been sent by the Municipal

Corporation to the DSO(I) informing it about the increase in the number of beneficiary families are forged one.

Mr Panwar has further argued that involvement of the petitioner in commission of crime is writ large from the statement of several persons recorded

during the course of investigation. Swaroop Singh Rajpurohit - co-accused confessed in his statement that the petitioner hatched a conspiracy with him

and one Suresh Upadhyaya to misappropriate the 35020 quintals of wheat received additionally at her instance.

It is further submitted that during the course of investigation, several ration dealers also gave their statements that they never received full quantity of

the wheat allotted to them and though they received less wheat but were forced to give receipt of receiving full quantity of wheat under the threat and

pressure by Swaroop Singh Rajpurohit and Suresh Upadhyaya by saying that everything is done under the instructions of the petitioner.

Mr Panwar has also argued that as a matter of fact though pursuant to the directions given by this Court on 06.02.2018, the petitioner appeared before

the investigating officer but did not cooperate with the investigation in any manner. It is submitted that whenever the petitioner was called, she came

late and did not reply to the queries raised by investigating officer in proper manner. It is further submitted that the custodial interrogation of the

petitioner is necessary to unearth the scam as there is all possibility that some higher ups may also be involved. It is also contended that petitioner in

her entire service period remain posted in Jodhpur only for a considerable long period and out of which she held the post of DSO(I) on several

occasions and looking to her proximity with Jodhpur and the influence which she carries, there is all possibility that she may influence the most of the

witnesses, who belong to Jodhpur only, if she is not arrested timely.

Learned Additional Advocate General Mr Rajesh Panwar has placed reliance on decisions of Hon'ble Supreme Court rendered in State of A.P. vs.

Bimal Krishna Kundu & Anr., (1997) 8 SC 104 and in Sudhir vs. State of Maharashtra & Anr., (2016) 1 SCC 146.

Heard learned counsels for the rival parties and carefully scrutinized the case diary as well as the material placed on record by the respective parties.

The petitioner while working as Director, Rajasthan Prachya Shodh Sansthan, Jodhpur was handed over additional charge of the post of DSO(I) in

January, 2016. On 11.02.2016, she wrote a letter to the Additional Food Commissioner, Jaipur mentioning that in Jodhpur urban area under the Food

Protection Scheme, 53% of the families are to be selected and in this process Municipal Corporation, Jodhpur is under process of re-verification of the

beneficiary families and the office receives the verified lists every month. It is further mentioned that on 19.08.2015, verified lists of 1512 families

and thereafter 7852 families were made available in the last months and the said process is being continued by the Municipal Corporation, Jodhpur

by organizing camps in various wards and, therefore, for the purpose of distributing the wheat to the consumers more wheat is required.Â

After narration of above facts, the letter states that it may be ensured that the wheat surrendered by this office vide letter dated 19.08.2015 be

reallotted additionally. Thereafter on 22.02.2016, the petitioner wrote another letter to the Food Commissioner, Jaipur stating that in Jodhpur urban

area, the number of selected families is 63000, however, now 33000 more families are also selected, therefore, there is requirement of allotment of

additional 35016 quintals of wheat, therefore, 35016 quintals of additional wheat be allotted.

In response to the letter dated 22.02.2016, the Additional Food Commissioner, Jaipur vide letter dated 25.02.2016 allotted additional wheat weighing

35020 quintals. After receiving 35020 quintals of wheat, the petitioner vide order dated 03.03.2016 allotted 25020 of wheat to Jodhpur Sahakari

Upbhokta Wholesale Bhandar for Jodhpur City, 7000 quintals of wheat was allotted to Jodhpur Co-operative Marketing Society Ltd., Panchayat

Samiti Luni and Mandore and 3000 quintals of wheat to Kriya Vikriya Sahakari Samiti Ltd., Panchayat Samiti Baori.

The petitioner has raised two pleas; firstly the wheat weighing 35016 quintals demanded by her vide letter dated 22.02.2016 is the wheat, which was

surrendered by the erstwhile DSO(I) Mr Mahaveer Singh Rajpurohit in August, 2015 and secondly, the number of the beneficiary families in Jodhpur

urban area has increased by 33000 and for those increased beneficiary families, the additional wheat weighing 35016 quintals was demanded.

It is difficult to comprehend that if the number of the beneficiary families has increased by 33000 in addition to the 63000 beneficiary families already

existed, how the additional wheat of 35016 quintals surrendered in August, 2015 could be demanded. On the other hand, if the petitioner demanded

reallotment of 35016 quintals of wheat surrendered in the month of August, 2015, then there was no question of demanding 35016 quintals of wheat in

the name of addition of beneficiary families vide letter dated 22.02.2016. In my opinion, both the pleas of the petitioner cannot run together and either

of pleas is unacceptable.

Moreover, the erstwhile DSO Mr Mahaveer Singh Rajpurohit in his statement recorded under section 161 CrPC has categorically stated, on the basis

of record, that the wheat which was surrendered in August, 2015 was later on allotted in the month of September, 2015.

Apart from that, from the record, it appears that in January to June, 2015, the total allotment of the wheat for whole Jodhpur District was 10098 metric

ton, thereafter in August and September, 2015, it was 10945 metric ton, in October, November and December, 2015, it was 10640 metric ton, in

January, 2016 total allotment of wheat was 10640 metric ton, whereas in February, 2016, it was 10540 metric ton, in March, 2016, it was 10568 metric

ton initially but later on, additional 350 metric ton (30520 quintals) of wheat was allotted and thereafter in April, May, June, July and August, 2016 the

total allotment of wheat was 10572 metric ton.

Looking to the above facts, a question comes in mind that had there been increase in the number of beneficiary families in August, 2015 by 33000 or

thereafter, it might have been reflected in quantity of allotment of wheat in the months running from September, 2015 onwards, however, no such

increase was reflected and it is a matter of investigation that how and under what circumstances a huge quantity of 35000 quintals of wheat was

additionally demanded by the petitioner.

The investigating agency seriously disputed about the claim of the petitioner of increasing in the number of beneficiary families by 33000 and looking to

the quantity of allotment in the above referred months, suspicion of the investigating agency regarding false increase in the number of the beneficiary

families cannot be said to be unfounded.

Interestingly, the petitioner had asked for additional allotment of 35016 quintals of wheat in the name of increase in the number of beneficiary families

by 33000 in Jodhpur urban area, however, vide letter dated 03.03.2016, she allotted 10000 quintals of wheat to the rural area, falling in Panchayat

Samities Luni, Mandore and Baori and if it is assumed to be correct that there was increase of 33000 beneficiary families in Jodhpur urban area, it

would be difficult to understand that what was the logic to allot 10000 quintals of wheat to the beneficiary families of rural areas when the same was

demanded for urban area. The only explanation offered by the petitioner during the course of interrogation is this that since the Panchayat Samities,

Luni, Mandore and Baori fall within the jurisdiction of DSO(I) she had rightly allotted 10000 quintals of wheat to that area but I feel that the same is

not convincing and there would be force in the contention of the investigating agency that the claim of the petitioner regarding increase in the

number of beneficiary families in Jodhpur urban area by 33000 is doubtful.

During the course of interrogation, co-accused Swaroop Singh Rajpurohit confessed that he and Suresh Upadhyaya, transporter hatched a conspiracy

with the petitioner to misappropriate 35020 quintals of wheat, additionally allotted for Jodhpur urban area. The investigating agency has also recorded

statements of several Ration Dealers, who have specifically stated that they were in receipt of less quantity of wheat than the allotted wheat and

were forced to give the receipt of full quantity of wheat under pressure by the co-accused Swaroop Singh Rajpurohit and Suresh Upadhyaya in the

name of the petitioner.

It is also to be noticed that Additional Food Commissioner has allotted 35020 quintals of wheat simply on a letter without verifying that the number of

beneficiary families has increased by 33000 or not. This fact is required to be investigated.

The enquiry report prepared by Mr Gautam Chand Jain, District Supply Officer (Uparjan) and Mr Shashi Shekhar Sharma, Enforcement Officer,

Jaipur (Rural) also suggests that there was no increase in the number of beneficiary families to the tune of 33000 and the letters shown by the

petitioner in support of her claim of increase in the number of beneficiary families sent by the Municipal Corporation, Jodhpur are not believable.

I agree with the contention of the investigating agency that the matter requires a deep investigation to unearth the scam in which several higher ups

may also be involved.

Hon'ble Supreme Court in Shri Gurbaksh Singh Sibbia & Ors. vs. State of Punjab (supra) has held that the relief of anticipatory bail cannot be said

to be barred merely for the reason that allegations are related to the economic offences or corruption. There is no denial to the above proposition of

law and the investigating agency is also not claiming that since the allegation against the petitioner is of corruption, she is not entitled for anticipatory

bail but the investigating agency is claiming that to unearth the whole scam, the custodial interrogation of the petitioner is required because she did not

reveal the truth during the course of interrogation, which she joined as per the directions of this Court.

So far as the orders passed by this Court in Modaram & Ors. vs. State of Rajasthan and K.K.Mathur vs. State of Rajasthan (supra) are

concerned, suffice it to say that in the matter of accepting or dismissing the plea of anticipatory bail, facts involved in each case are to be examinedÂ

and the bail orders passed in any other case, on the basis of the facts and circumstances of that case, cannot be treated as legal precedent.

The Hon'ble Supreme Court in State of A.P. vs. Bimal Krishna Kundu & Anr. and in Sudhir vs. State of Maharashtra & Anr. has declined to

extend the benefit of pre arrest bail to the accused-persons after taking into consideration the allegations of corruption and misappropriation of public

funds. I am of the opinion that no straightjacket formula can be laid for grant or refusal of anticipatory bail and the application for anticipatory bail is to

be decided on the basis of available facts in each case.

Looking to the allegation of misappropriation of 35020 quintals of wheat, meant for needy, poor and deprived section of society which includes women

and children, amounting to crores of rupees against her and looking to the fact that the same was allotted on the demand of the petitioner and

distributed by her, at this stage, it cannot be concluded that there is no involvement of the petitioner in commission of crime. In the absence of

custodial interrogation of the petitioner, there is all possibility that investigation into the allegations levelled in the FIR No.306/2017 lodged at Police

Station, A.C.B. C.P.S. Jaipur may be hampered or stalled. Hence, I am not inclined to extend the benefit of anticipatory bail to the petitioner.

Consequently, the instant anticipatory bail application filed by the petitioner under section 438 CrPC is dismissed. However, the investigating officer is

directed to always interrogate the petitioner in custody in the presence of a lady police officer.