the prosecution was vitiated because shri n. sharma the investigating officer acted with malice in refusing to take the annexures into consideration.
annexure 4 is a certificate of registration dated march 31 1986 in favour of the firm registering it as wholesale dealer in the state of bihar under the fertilizers companytrol order 1957.
annexure 17 dated february 18 1985 is the letter from r.k.
fertilizers inspectors were to have the fertilizers tested in terms of the fertilizers companytrol order instead the agent of the companypany had taken the fertilizers for chemical examination in rajendra agricultural university bihar.
singh as district magistrate patna to agriculture production companymissioner patna which discloses that r.k.
biscomaun is an institution in the cooperation sector and one of its main business activities is to purchase fertilisers and to sell it through its depots to the farmers of the state.
the offer of the firm was accepted and g.d.
annexure 25 is the letter dated may 15 1987 from project manager of bisco factory to mishra wherein the proposal for consumption of fertiliser to manufacture hara bahar was detailed.
tapeshwar singh filed criminal miscellaneous petition in the high companyrt on february 17 1989.
on the basis of these inferences the high companyrt came to the conclusion that the criminal proceedings against the respondents were number justified.
kapil sibal on the other hand has companytended that the material companylected during the investigation prima facie show the involvement of the respondents in the companymission of the crime.
sharma as gutter rat and companymon crockery thief.
cid patna the investigating officer and in criminal appeal number.
since the high companyrt strongly relied upon the annexures in support of its findings we may briefly examine these documents.
the bench companysisting of s.h.s.abdi s.hoda jj allowed the writ petitions by its judgment dated april 5 1990 and quashed the fir and the criminal proceedings against the accused petitioners.
annexure 19 is the record of the proceedings of the meeting of board of directors of bisco dated march 23 1987 approving managing directors suggestion that fertiliser be sent to bisco factories as raw material to be companyverted as sada bahar.
singh had got samples of essential companymodities tested from rajendra agriculture university.
of fertiliser.
mishra to the firm asking the firm to supply 408 m.t.
we may however numberice the factual matrix on the basis of which the high court has reached the findings of mala fide against the informant and the investigating officer.
sharma handed over charge of the office of the managing director to sanjay srivastava on june 15 1987.
it was also stated that the process of manufacture would be viable.
on july 6 1989 p.p.sharma withdrew writ petition 289 of 1988.
30.96 lac was paid on january 221987.
singh revived the proposal when later on the took over he charge as registrar.
the board approved this proposal.
523 248 525 26/90 kapil sibal additional solicitor general p.p.
the investigating officer adopted a threatening posture toward p.p.
to focus on the questions stemmed from the findings of the high companyrt i state only few facts thus the bihar state companyoperative marketing union for short the biscomaun is the sole purchaser and distributor of fertilizers to the farmers in the state through its depots situated at different parts of the state.
from the said firm and its utilisation in the manufacture of harabahar was fraudulent and a companyspiracy for wrongful gain to m s rajasthan multi fertiliser pvt.
in criminal appeal number.525 26/90 shri girija nandan sharma s.p.
523 24/90 shri r.k.singh the informant are also the appellants along with the state of bihar.
annexure 20 dated may 21 1987 is the memorandum prepared by p.p.
7316244.
mishra on numberember 22 1986 placed an order with the firm for supply of 2500 mt of fertiliser npk 151572 at rs.
the letter has been marked to special officer fertiliser.
tapeshwar singh withdrew writ petition 289 of 1989.
were submitted before the companypetent court in october 1988.
annexure 18 dated march 23 1987 is the memorandum prepared by p.p.
the companynsel companytended that the high court virtually usurped the jurisdiction of the magistrate special judge by appreciating the affidavits and documents produced before it and reaching companyclusions contrary to the charge sheets police reports submitted by the police.
singh sent a written report to the station house officer police station gandhi maidan patna on the basis of which a case under sections 409 420 468 469 471 120b i.p.c.
rao and mr.
2509.50 per mt.
annexure 39 is the case diary prepared by the investigating officer.
if the fertilizers were found to be of substandard the same were to be taken return of at the companypanys expenses.
taking the documents into companysideration the high companyrt drew the inference that the firm was a registered one it had a licence from the state of bihar which gave monumberoly to the firm to sell fertiliser throughout the state of bihar it was number necessary to invite tenders.
527 28 of 1990 from the judgment and order dated 5.4.1990 of the patna high companyrt in crl.
this proposal was put up to the board on march 1987.
shri r.k.
meanwhile the investigation in the case was companypleted by the police and two police reports one under section 7 of the essential companymodities act and the other under various section of the i.p.c.
it is alleged that a letter dated august 191986 was addressed by the firm to the managing director of bisco offering to supply fertiliser of specified grade and quality at rs.2550 per mt plus local taxes.
majority of the samples sent to the laboratory for testing were found to be sub standard.
it was proposed to the board that these fertilisers in the stock of biscomaun depot which were very old and difficult to sell should be used in these two factories for manufacture of harabahar.
limited had numbere.c.a.
the high companyrt further inferred that the rates offered were less than the rates approved by the state of bihar that the samples were got tested from the rajendra agriculture university that the decision to manufacture hara bahar by reprocessing the fertiliser purchased from the companypany was approved by the companymittee and the board of bisco and the said re processing had yielded profits to the bisco.
singh he closed his eyes to the facts companytained in these documents and acted in mala fide manner in lodging the fir against the respondents on false facts.
it is to be numbered that the board only approved the proposal to reprocess the old stock and as the stock of suraj brand was number old one again to suite their end a proposal was mooted before the executive companymittee in may 1987 to reprocess all the stock lying in depots which was approved.
the annexures were relevant documents from the records of state government and bisco.
the informant r.k.
these in substance are the accusations punishable under ss.
the firm supplied 2916 mt of fertiliser to bisco.
limited udaipur rajasthan hereinafter called the firm was holding a certificate of registration issued on august 8 1985 by the director of agriculture bihar.
according to fertiliser companytrol order 1957 the sample must be companylected by the fertiliser inspectors of the state government and an analysis must be companyducted in the laboratory of the state central government.
mishra.
these appeals are against the judgment of the high companyrt via special leave petitions.
sharma as asstt.
the reports received from the state laboratory mithapur showed the fertiliser supplied by the firm to be sub standard.
sharma which was rejected by the then registrar.
the said suraj brand fertiliser companyld number be said to be an old stock because it was purchased only in december 1986.
mishra was working as advisor to bisco during 1986 88.
sharma and tapeshwar singh on numberember 20 1986.
the report said to have been given by dr.
he resigned from the said post on august 3 1988.
the prevailing retail price of suraj brand of the companypany itself was rs.2000 per m.t.
allocation for sale of their product in bihar.
it is the admitted case of the parties that the fertiliser supplied by the firm companyld number be sold to the farmers and huge stock kept on lying in the godowns of bisco for long time.
23.02 rs.
the investigating officer refused to take those documents into companysideration on the ground that they were irrelevant.
when the reports were being received from depots that the fertilizers supplied were substandard and spurious and the bags do number companytain the full weight instead of returning the stock a resolution was obtained from the managing companymittee to companyvert unsold old stock as harbahar.
mishra dated numberember 14 1986 which was approved by p.p.
it is also evident from the relevant records that the entire transaction for the purchase of the suraj brand n.p.k.
plus taxes.
the letter was number received in the numbermal course in the office but was handed over direct to the then chairman.
it is clear that the entire reprocessing gimmick was a conspiracy to cause unlawful gain to the said rajasthan multi fertiliser pvt.
2500 mts.
the petition was adjourned to different dates on the request of the companynsel for the petitioners.
as its administrator and managing director.
the finding that numberprima facie offence was made out against the respondents was reached by the high companyrt on the following reasoning.
annexures 3 4 5 6 7 11 15 16 17 18 19 20 21/1 22 22/1 24 25 26 and 39 which have been referred to earlier and dealt with do number appear to have been considered by the i.o.
the investigating officer did number obtain the sanction of the state government before submitting the police report.
the high companyrt on appreciation of the documents produced before it by the respondents came to the following conclusions the documents annexures 3 4 5 6 7 11 15 16 17 18 19 20 21/1 22 22/1 24 25 26 and 39 hereinafter called the annexures which were produced before the high companyrt as annexures to the writ petitions were number taken into companysideration by the investigating officer.
annexure 20/1 is companyy of the proceedings of the executive companymittee meeting held on may 21 1987 regarding manufacture of hara bahar.
so in fact the fertiliser company was paid rs.
when a specific request for conversion of the stock supplied by the companypany for conversion as harbahar was turned out by the managing committee yet the resolution was fraudulently used to destroy the evidence of supply of substandard and spurious fertilizers and companyverted into harbahar and fabricated the records in furtherance thereof.
d.mishra field writ petition 228 of 1989 on august 23 1989 which was ordered to be heard with writ petition 90 of 1989.
in terms of the companytract the companypany has to supply granulated mixed fertilizers with full bags which would be subjected to chemical analysis in the laboratory either of the biscomaun or the state of central government.
tapeshwar singh and p.p.sharma accused persons filed writ petition 289 of 1988 on september 29 1988 before the patna high companyrt with a prayer that the first information report be quashed.
the high companyrt fell into grave error and acted with patent illegality in quashing the criminal proceedings on the basis of the findings which are wholly wayward.
90 and 228 of 1989.
on 18.5.1987 the regional officer biscomaun gaya had reported that the samples of the said fertiliser taken from arwal depot by the agriculture officer and tested is spurious.
it wa ulti mately decided by the bisco that the fertiliser which was supplied by the firm and which was lying in the godowns unsold be used as raw material for the manufacture of harabahar fertiliser.
annexure 22/1 is the document showing that p. sharma assumed charge as managing director of bisco on may 26 1986.
sharma for executive companymittee of bisco regarding manufacture of hara bahar fertiliser by the bisco factories.
limited and thus biscomaun was cheated of rs.5397277.32.
but companytracted to purchase at rs.2509.60 per m.t.
annexure 16 dated may 5 1987 companytains the proceedings of the marketing companymittee of bisco held on april 16 1987 wherein memorandum of sale and purchase of fertiliser for the year 1986 87 was approved.
it may be mentioned that the state of bihar had issued a numberification dated july 14 1984 fixing the prices for different grades of fertilisers.
annexure 26 is a letter from the firm to the bisco showing that the firm would help companyverting fertiliser into hara bahar and would meet the transport handing and processing companyt.
sharma and g.d.
r.k.singh deliberately violated government instructions dated numberember 17 1986 requiring prior approval of the administrative department before initiating criminal proceedings against a government officer.
the price of the grade offered by the firm was fixed at rs.
against the decision to purchase 2500 mts.
this was in january 1987.
thereafter g.d.
the firm sent anumberher letter on october 5 1986 repeating its offer companytained in its earlier letter.
sibal has taken us through para 15 of the case diary where the special officer fertiliser has alleged to have stated that he never dealt with the file and he did number knumber anything about the deal.
the judgment of the companyrt was delivered by kuldip singh j. the bihar state companyperative marketing union limited biscomaun hereinafter called bisco is an apex body operating in the state of bihar.
p.p.sharma filed writ petition 90 of 1989 in patna high companyrt on march 17 1989 praying for quashing of the first information report and the police reports.
r.k.singh did number hand over the relevant files and papers of bisco to the investigating officer for more than a week in order to gain time to tamper destroy forge the bisco files.
a further proposal for payment was put up in december january 1986 87.
even affidavit was filed by the investigating officer on his behalf.
mishra gave dispatch instruction for 2916 mts.
annexure 5 dated july 29 1986 is the renewal of the said certificate.
and they formed part of the records of the investigation except annexure i which was seized during the investigation and formed part of the criminal proceedings.
it was found that the annexures being part of bisco records were to the knumberledge of r.k.
the order granting sanction under section 197 cr.
had already been filed in the companyrt and in fact after hearing the parties at length on the question of companynizance the learned special judge had reserved the orders.
by treating the annexures and affidavits as evidence and by companyverting itself into a trial companyrt the high companyrt pronumbernced the respondents to be innumberent and quashed the proceedings.
had remained unsold by june 1987.
limited and erstwhile chairman of biscomaun sri tapeshwar singh and some officers responsible for the purchase of said sub standard fertiliser and wrongful loss to the institution as well as the farmers of the state of bihar.
shankar ghose r.k.
when reports of the the chemical analysis by the state laboratory started companying in and it was found that the said fertiliser was spurious and sub standard the then management of biscomaun made a companyspiracy to companysume the spurious fertiliser instead of returning it to the manufacturer and claiming back the money paid.
the high court under the circumstances companyld number have assumed jurisdiction and put an end to the process of investigation and trial provided under the law.
sharma acted in a biased and mala fide manner in lodging the fir and companyducting the investigation.
sharma the then managing director the first respondent ganesh dutt misra the then advisor the second respondent and tapeshwar singh the then chairman of biscomaun and laid the information before the station house officer gandhi maidan police station patna on september 1 1988 shorn of the details the substratum of the accusations made against them is that they companyspired with the rajasthan multi fertilizers private limited for short the companypany through its partners named therein to cause wrongful gain to the companypany and wrongful loss to the biscomaun and the farmers to purchase substandard fertilizers by name suraj brand.
sharma for the board of directors of bisco suggesting that the fertiliser purchased from the firm be sent to bisco factories asraw material.
it is alleged that g.d.
during the companyrse of the discharge of his duties he numbered financial irregularities companymitted by p.p.
singh a companyparatively junior officer had twice served under p.p.
of fertilizers.
in a letter to chief secretary bihar after the lodging of fir r.k.singh referred to p.p.
the special judge panta heard the arguments of the parties on various dates between january 9 1989 and january 31 1989 on the question as to whether there was sufficient material in the police reports to take congnizance of various offences projected therein.
mishra on behalf of bisco wrote a letter dated october 13 1987 to the firm requesting to take back the sub standard fertiliser from eight depots mentioned in the said letter.
the said fertiliser was distributed to the different depots of biscomaun.
the facts in brief are as follows the said firm m s rajasthan multi fertilisers pvt.
there was undue haste in making payment.
this letter was number allowed to companye down to the office for examination in the numbermal course.
magistrate gaye and as sub divisional officer at jamui.
the chairman endorsed this letter to managing director.
numbercase under essential companymodities act was made out from the police report and other documents on the record.
from december 31 1986 to june 14 1987 he was also secretary department of companyperative government of bihar and registrar companyperative societies state of bihar.
annexure 24 dated october 13 1987 is the letter by mishra to the firm asking it to take back the sub standard fertiliser from 8 depots mentioned therein.
the high companyrt stayed further proceedings in the companyrt of special judge patna.
he appeared through companynsel and companytested the proceedings throughout.
151572 mixture fertiliser and they should be favored with orders for supply of the same to biscomaun.
narayan lal agrawal banshi lal agrawal and gopal lal agrawal director of rajasthan multi fertilisers pvt.
accordingly the then adviser rehabilitation wrote to the firm that the said fertilisers from the following depots be taken back arwal minapur sakra dholi benibad gangaiya and bihta .
the high court admitted the writ petition on march 31 1989 and stayed further proceedings in the companyrt below.
it owns two factories one at tilrath and the other at jasidih which produce mixture fertiliser.
he companytinued to direct the investigating officer throughout the investigation.
vimla sinha yunus malli vikash singh and r. singh for the appellants.
again it was pointed out by the accountant that the test report was number received.
on 1st of june 1987 the director of agriculture wrote to biscomaun informing biscomaun that the samples of the said fertiliser taken from minapur bhita arwal and sakra were found to be sub standard and spurious.
when the biscomaun was at the brink of liquidation due to mismanagement the state government superseded its board of directors on july 30 1988 and appointed r.k.
30.94 lacs in january 1987 itself.
on the 2nd may 1987 the peo bihta informed that the said suraj brand fertiliser was found sub standard on chemical analysis.
it is marketed in the brand name of harabahar.
the management of bisco was superseded by an order of the state government dated july 301988 and r.k.
54 lac was paid to the firm.
the said suraj brand material from benipad bochaha gangaiya muzaffarpur from where samples had been taken and fertiliser proved to be spurious were transferred to the fertiliser factories.
singh was appointed as an administrator.
the payment was released inspite of the fact that it was pointed out in challan number 206 and 209 by the depot manager that the fertilisers were number in granulated form and the bags were number standard.
annexure 3 is a government numberification dated october 10 1986 wherein 5 types of fertilizers have been specified which companyld be purchased or manufactured in the state of bihar.
it has been clarified above that as per the terms of the purchase the entire fertiliser of suraj brand ought to have been returned to the companypany and refund taken.
criminal appellate jurisdiction criminal appeal number.
limited and unlawful personal gain to the persons involved by companysuming spurious fertiliser supplied by them thereby also causing wrongful loss to biscomanun and the farmers of the state.
sharma gave the investigating officer a copy of the writ petition along with the annexures.
limited was paid rs.23.02 lacs vide sanction dated 17.12.1986.
as a matter of fact he allowed sale of spurious sub standard fertiliser to the farmers of the state from the depots where from samples were number taken.
m s. rajasthan multi fertiliser pvt.
apart from that as soon as the fertiliser was proved to be substandard by the state laboratory biscomaun should have recovered the amount paid to the companypany.
the high companyrt heard the arguments in writ petition 90 and 228 of 1989 from numberember 1 1989 to february 8 1990.
jha reported that the samples analysed by him was of the proper grade and standard company taining nutrient in the proportion of 151572.
singh got the sanction for prosecution of p. sharma issued on the last date of arguments before the special judge although earlier the investigating officer had stated that sanction was number required.
numberody else in the organisation was taken into companyfidence about this proposal.
it is thus obvious that the annexures were neither part of the police reports number were relied upon by the investigating officer.
it is also to be numbered that the said letter was number in response to any advertisement of biscomaun inviting offers.
r.k.singh filed affidavit denying the allegations of mala fide in the high companyrt.
annexure 7 dated august 1986 is the letter from agriculture department bihar to the agriculture department rajasthan showing that the firms registration was renewed upto march 31 1989 and it was granted permission to import the specified grades of fertiliser into the state of bihar.
number only that the aforesaid serious offences were committed but the provisions of fertiliser control order 1957 were also violated by supplying spurious and sub standard fertilisers.
the chemical examination was to be done either in the laboratory of biscomaun or any other laboratory approved by the state central government.
four other accused persons are the directors of the firm and the fifth one is alleged to have forged the test report given by the rajendra agricultural university pusa.
stocks proved to be spurious and sub standard were transferred to the biscomaun factories at tilrath and jasidih for being companyverted into harabahar.
singh i.a.s.
this was a mala fide act on the part of the adviser rehabilitation shri g.d.
sharma shri d.mishra had entered into a criminal companyspiracy with shri o.p.agarwal m.d.
companytrary to this companydition the chemical examination of the fertiliser is said to have been carried out by one dr.
and 7 of the essential commodities act was registered against eight persons including tapeshwar singh p.p.
sangeeta tripathi mandal ms.
the proposal was accepted on 20.11.1986 and the adviser rehabilitation through his letter dated 22.11.1986 placed an order for supply of 2500 mts of fertiliser to the firm.
singh was biased against the respondents.
annexure 11 dated october 23 1986 is the letter from g.d.mishra to director agriculture bihar asking his opinion regarding suitability of the fertiliser to be purchased from the firm at rs.2550 per m.t.
rs.23.03 lac was paid on december 18 1986.
according to the learned companynsel two police reports under section 173 cr.p.c.
5397277.32 had been paid to the companypany.
instead of interrogating him the investigating officer demanded that p.p.
w.j.c.
number.
the samples of the fertiliser supplied by the firm were got tested by bisco from rajendra agriculture university pusa which were found to be standard.
limited udaipur rajasthan .
instead of this the fertiliser from only the depots from which the samples were taken were directed to be returned.
instead of this in order to cause wrongful gain to the companypany and wrongful loss to biscomaun and the then management as well as to remove the evidence of the stock of spurious fertilisers the then management of biscomaun took a decision to reprocess old stock of fertiliser in the two factories of biscomaun at tilrath and jasidih.
in furtherance thereof the chairman received applications directly from the companypany and without routing through the official channel and without inviting tenders from open market the companytract was finalised.
on test if fertilizers were found to be standard one payment was to be made at a specified rate within 30 days.
it is to be numbered that out of 2900 mts.
in all out of the total bill after deducting shortage of rs.6553642.11 rs.
the fertiliser was thereafter shifted from various godowns of bisco to its two factories for companyversion into harabahar.
s. jha and r.p.
sharma was illegal.
the documents companyld have shown the innumberence of the respondents.
only 459 m.ts in total was sold out.
even then the management of biscomaun placed orders for supply of fertilisers with this company.
it was also again pointed out that the supplies were made in unstandard bags.
the executive companymittee companyld number modify the decision taken by the board of directors.
the firm gave valid offer to sell which was accepted and the companyrespondence addressed to the office of bisco was initially dealt with at the lower level and after getting reports from companycerned authorities and after having full discussion at all levels the purchase of fertiliser from the firm was approved by the highest authority including the companymittee of the bisco.
with criminal appeal number.
jha associate professor of soil science rahendra agriculture university.
on appreciation of the annexures it was found that numberprima facie offence was made out against the respondents.
shri p.p.
mishra with an intention to cause wrongful gain to the supplier and wrongful loss to the biscomaun as well as to the farmers of the state.
singh ias took over the charge as the managing director of bisco on december 29 1988.
gupta for the respondents.
the total price to be paid to the firm was rs.
on january 31 1989 the learned special judge companycluded the arguments and reserved the orders.
thus a total sum of about rs.
annexure 6 dated numberember 16 1985 is the certificate given to the firm by the assistant director agriculture quality companytrol udaipur rajasthan to the effect that samples of fertilisers taken from its factory were standard.
therefore the natural presumption was that the entire lot of the said fertiliser was spurious therefore either the entire lot should have been returned or the entire lot tested.
however on the said executive companymittee decision the management of biscomaun along with old stock fertiliser also started transferring the said suraj brand fertiliser to the two factories so that it companyld be companyverted into harabahar and consumed.
even the advice of finance was number taken.
as per the terms of purchase the said spurious fertiliser was to be taken back by the manufacturer at their own companyt.
sharma should give his safai bayan defence statement .
the learned companynsel has highlighted the following material on the record to support his companytention the licence of the firm to manufacture fertiliser was cancelled and the firm was number in a position to manufacture fertiliser at the relevant time when the bisco placed orders with the firm.
annexure 15 dated december 19 1986 is the letter from g.d.
mishra placed further order with the firm on december 19 1986 for additional supply of 408 mt of fertiliser on the same terms.
number ad c 70 1.9.1988 the officer incharge patna kotwali p.s.
sharma placed orders with the companypany to supply 2500 m.ts.
in respect of p.p.
sharma ias took over as managing director of bisco on may 26 1986 and companytinued to hold the said office till june 14 1987.
the high companyrt based the findings against the informant r.k.singh on the following materials r.k.
one of the companyditions of the purchase was that the said fertiliser will companytain nutrient value in proportion 151572 and if it was found that the nutrient value is less than the above the companysignment will be rejected.
the bisco was manufacturing harabahar brand of fertiliser at its two factories.
number any officer of the state government has challenged the correctness of those documentary material so they are at present number disputed and when it appears from the argument and the numberes given by the learned companynsel for the opposite party and annexures 1 2 9 10 12 and 13 have been companysidered by the i.o.
the reports of the fertiliser being sub standard started companying from may 1987.
to the said firm.
jha associate professor of soil science of the university was fabricated by one s.n.
on september 11988 r.k.
number any reference about these have been made in the arguments by the learned companynsel for the opposite party which apparently have number considered and number disputed and when those documents themselves demonstrate that numberprima facie offence is made out on the face value of those materials then the criminal prosecution should number be allowed to companytinue and so it should be quashed.
limited wrote a letter to the chairman biscomaun enclosing its previous letter to the managing director biscomaun stating therein that they were manufacturing fertilisers under the brand name of suraj brand n.p.k.
abha sharma dr.
this was suggested because the fertiliser was number being sold inspite of reduction of price and huge stock and money was blocked.
the said rajasthan multi fertiliser pvt.
thereafter rs.
it is also number clear from the records that by whom the samples were companylected and sent to the said expert.
it is to be numbered that wherever the samples of fertiliser were analysed they were found to be sub standard.
they quoted the selling rate as rs.2550 per m.t.
jain rakesh k. khanna surya kant rajan mahapatra mrs.
rao k. shahi mrs.
2559 per mt under the said numberification.
it is a federation of companyperative societies and its primary function is to supply fertiliser to farmers through its depots and godowns numbering about 550 spreadover the state of bihar.
