Gurpreet Singh Sabharwal vs. State Of Haryana And Anr.
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Cause title — parties, addresses and appearances
order/judgment.
CRM-M-18491-2024 2024:PHHC:057233 present regular bail pe
on in terms of provisions of Sec on 439 Cr.P.C. This is first pe
on for grant of regular bail.
The facts of the case are being taken from the reply dated 18.04.2024 filed by the concerned Deputy Superintendent of Police, which reads as follows:
“1. That there was source informa on to the effect that Government Revenue such as GST (CGST/SGST) & Royalty is being evaded by way of taking material from the mine at Ratewali, Panchkula in Trucks/Dumpers without issuing any bills and mining beyond permissible limit by M / s Tirupa Roadways Mine at village Ratewali. In order to verify the said source informa on, a team was formed who conducted Surprise Check on the site of M / s Tirupa Roadways Mine at village Ratewali on 11.05.2022. During the said check, relevant record/documents and data from the computers/desktops rela ng to bills i.e. E- Rawana bills etc. was seized. Perusal/scru ny of the said record/data collected during the said Surprise Check by the team of An Corrup on Bureau, Panchkula revealed that during the period of 06 days from 05.05.2022 to 11.05.2022, a total number of 1868 Trucks/Dumpers were found to have been taken out the material/mineral (i.e. Graval, Sand, Stone etc.) from the Mining Site of M/s Tirupa Roadway Mine. Whereas, bills men oning CGST/SGST and Royalty etc. of only 518 Trucks/Dumper were found to be issued.
That in order to further ascertain the amount of illegal extrac on of material/minerals, a survey/measurement was carried out with the help of officers/officers of HARSAC, Gurugram and the Mining DepA., Haryana, Panchkula M/s Tirupa Roadways at Ratewali, Panchkula, Haryana on 13.05.2022 at the site of Mine in presence of officers of District Mining and Department Mining & Geology, Haryana to verify as to how much volume of material has been extracted from the said river/mine. Vide report No. HARSAC/GGM/2022/203-205 dated 06.06.2022 of the Principal Scien st, HARSAC, Gurugram the total volume extracted was reported to be 17,66,079.68 MT (47.66 LTPA) which as per the terms and condi ons of tender comes out to be 5 - 6
mes more than the permissible range.
That as per clause 21 (A) of the Specific Condi ons of Environment Clearance leAer No.J-11015/75/2017-IA. II(M) dated 21.02.2020 issued to M/s Tirupa Roadways, RaAewali, Panchkula, the 2 JYOTI 2024.04.26 16:37 I attest to the accuracy and integrity of this order/judgment.
CRM-M-18491-2024 2024:PHHC:057233 permissible mining of river bed material (Boulder, Gravel and Sand) shall be limited to only 8.39 LTPA (8390000 MT) instead of requested 19 LTPA from an effec ve minable area of 24.25 Ha with a maximum minable depth of 1.33 Meters from the original ground level.
That as established, the total volume of material extracted by the owner of the firm M/s Tirupa Roadways at RaAewali, was 5-6 mes more than the permissible limit in a year. Thus, a huge loss of about Rs.35 Crores of revenue has been caused to the Government of Haryana by the owners of said firm by viola ng rules and without issuing bills of Royalty and extrac ng huge amount of material beyond the permissible range.
That in order to further ascertain the role of officers/officials of the mining department and to crack the whole conspiracy in the maAer, a detailed report was sent to the Chief Secretary, Government of Haryana, Vigilance Department, Chandigarh for registra on of criminal case under sec on 420, 379, 414 of IPC and sec on 4/21 of Mines and Mineral (Development and Regulatory) Act 1957 (MMDR Act 1957) and 13 (1) (a) r/w 13(2) of PC Act against owners of the said firm and the unknown Government servants of Mining Department Panchkula office. On receipt of permission of the Competent Authority i.e. Chief Secretary, Govt. of Haryana, Vigilance Department vide order Endorsement No. 32/12/2022-4VI dated 16.08.2022 and further order issued vide endorsement 13345/1-1/SVB(H) dated 18.08.2022 of the DG/SVB/ Haryana an FIR No.09 dated 25.08.2022, under sec on 420, 379, 414 of IPC and sec on 4/21 of Mines and Mineral (Development and Regulatory) Act 1957 (MMDR Act 1957) and 13 (2) r/w 13(1)(a) of PC Act has Been registered in the present case against the owners of the said firm and the unknown public servants of Mining Department of Panchkula and inves ga on is going on.
That during inves ga on, record rela ng to execu on of mining contract executed between the Government of Haryana and M/s Tirupa Roadways and other relevant documents are obtained from the concerned which revealed that on 04.12.2018, the mining contract was executed between the Government of Haryana and M/s Tirupa Roadways through its authorized signatory Gurpreet Singh Sabarwal, the pe
oner (duly authorized by his father Sh. Lakhmir Singh bharwal as per the Power of AAorney dated 19.08.2017).” 3 JYOTI 2024.04.26 16:37 I attest to the accuracy and integrity of this order/judgment.
CRM-M-18491-2024 2024:PHHC:057233
Counsel for the pe""oner submits that the FIR was registered way back in the year 2022 and his custody was not required. However, he had approached this Court by filing a quashing pe""on which was registered as CRM-M-4430-2024 and because of that reason now without any legal ground, he was arrested and put behind bars.
Counsel for the pe""oner seeks bail on the grounds that the allega"ons of the extra excava"on based on the numbers of dumpers counted by the authority are baseless because it would also contain mud/clay cons"tu"ng the soil’s top layer as well as impuri"es. Further when the actual mineral is extracted, it ranges from 20% to 40% depending upon area, loca"on, "me, seasons etc. Thus the premises on which the prosecu"on has been made is contrary to the ground reali"es.
Pe""oner's counsel prays for bail by imposing any stringent condi"on(s) and is also voluntarily agreeable to the condi"on that "ll the conclusion of the trial, the pe""oner shall keep only one mobile number, which is men"oned in AADHAR card, if any, and within fiCeen days undertakes to disconnect all other mobile numbers. The pe""oner contends that custodial interroga"on and pre-trial incarcera"on would cause an irreversible injus"ce to the pe""oner and family.
State counsel opposes the bail by submiEng that the pe""oner has spoiled the environment and extracted minerals viola"ng the terms of license and instruc"ons issued from "me to "me. In addi"on to that, there is a viola"on of GST. He further submits that pe""on is not maintainable as pe""oner chose to file pe""on straightway before this Court and custody of pe""oner is only of 15 days in this case, which is not enough to consider his case for bail.
Given the pre-trial custody, coupled with the primafacie analysis of the nature of allega"ons, and the other factors peculiar to this case, there would be no jus"fiability for further pre-trial incarcera"on at this stage, subject to the compliance of terms and condi"ons men"oned in this order. Furthermore, the pe""oner is a first offender, and one of the relevant factors would be to provide an opportunity to course correct. Even a primafacie perusal of paragraph 2 of the bail pe""on needs considera"on for bail.
In the present case, the pe""oner chose to come straightway to this Court and has given reasons for that in para no. 3 of pe""on. Reasons for filing pe""on before this Court is that during the pendency of the quashing pe""on when pe""oner prayed for stay on proceeding/inves"ga"on, this Court permiHed him to file pe""on under Sec"on 438 CrPC. Given the explana"on, there would be no jus"fica"on to dismiss the present 4 JYOTI 2024.04.26 16:37 I attest to the accuracy and integrity of this order/judgment.
CRM-M-18491-2024 2024:PHHC:057233 pe""on only on the grounds that he has forfeited one of his rights to file a pe""on firstly to the Sessions Court. In fact by straightway coming to this Court any accused would lose one of the statutory right of geEng their bail pe""on adjudicated by the Sessions Court first. In this process such an accused, who comes straightway to this Court in exercise of the concurrent juri ic"on under Sec"on 439 CrPC would be deprived of juri ic"on of this Court under Ar"cle 227 of the Cons"tu"on of India. If an accused first files a bail pe""on before the Sessions Court and the same is rejected they s"ll have right to exercise the juri ic"on of this Court under Sec"on 439 CrPC which is also concurrent juri ic"on of this Court. Thus, in en"rety it is such an accused, who would be loser by first coming to the High Court under Sec"on 439 CrPC. If such an accused makes a concession not to claim prejudice in case of dismissal of their regular bail pe""on by High Court under Sec"on 439 CrPC then there is no reason for this Court not to entertain such pe""on when filed straightway in this Court.
Given above, the pe""oner coming and filing a pe""on straightway to this Court is also not a ground not to entertain the same or to con"nue his deten"on just for these technical reasons. An analysis of above said submissions would lead to the outcome that the pe""oner is in judicial custody from 11.04.2024. His remand is judicial not police. Thus, his current custody in a prison is not going to render any help to the inves"gator at this stage. Simply because, the custody is from 11.04.2024 i.e. only for 15 days is not a ground to deny bail to the pe""oner.
In Gurbaksh Singh Sibbia v State of Punjab, 1980 (2) SCC 565, (Para 30), a Cons"tu"onal Bench of Supreme Court held that the bail decision must enter the cumula"ve effect of the variety of circumstances jus"fying the grant or refusal of bail. In Kalyan Chandra Sarkar v Rajesh Ranjan @ Pappu Yadav, 2005 (2) SCC 42, (Para 18) a three-member Bench of Supreme Court held that the persons accused of non-bailable offences are en"tled to bail if the Court concerned concludes that the prosecu"on has failed to establish a prima facie case against him, or despite the existence of a prima facie case, the Court records reasons for its sa"sfac"on for the need to release such person on bail, in the given fact situa"ons. The rejec"on of bail does not preclude filing a subsequent applica"on. The courts can release on bail, provided the circumstances then prevailing require, and a change in the fact situa"on. In State of Rajasthan v Balchand, AIR 1977 SC 2447, (Para 2 & 3), Supreme Court no"ceably illustrated that the basic rule might perhaps be tersely put as bail, not jail, except where there are circumstances sugges"ve of fleeing from jus"ce or thwar"ng the course of jus"ce or crea"ng other troubles in the shape of repea"ng offences or in"mida"ng witnesses and the like by the pe""oner who seeks enlargement on bail from the Court. It is true that the gravity of 5 JYOTI 2024.04.26 16:37 I attest to the accuracy and integrity of this order/judgment.
CRM-M-18491-2024 2024:PHHC:057233 the offence involved is likely to induce the pe""oner to avoid the course of jus"ce and must weigh when considering the ques"on of jail. So also, the heinousness of the crime. In Gudikan" Narasimhulu v Public Prosecutor, (1978) 1 SCC 240, (Para 16), Supreme Court held that the delicate light of the law favors release unless countered by the nega"ve criteria necessita"ng that course. In Prahlad Singh Bha" v NCT, Delhi, (2001) 4 SCC 280, Supreme Court highlighted one of the factors for bail to be the public or the State's immense interest and similar other considera"ons. In Dataram Singh v State of UHar Pradesh, 2018:INSC:107 [Para 7], (2018) 3 SCC 22, (Para 6), Supreme Court held that the grant or refusal of bail is en"rely within the discre"on of the judge hearing the maHer and though that discre"on is unfeHered, it must be exercised judiciously, compassionately, and in a humane manner. Also, condi"ons for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory.
The possibility of the accused influencing the inves"ga"on, tampering with evidence, in"mida"ng witnesses, and the likelihood of fleeing jus"ce, can be taken care of by imposing elabora"ve and stringent condi"ons. In Sushila Aggarwal v. State (NCT of Delhi), 2020:INSC:106 [Para 92], (2020) 5 SCC 1, Para 92, the Cons"tu"onal Bench held that unusually, subject to the evidence produced, the Courts can impose restric"ve condi"ons.
Without commen"ng on the case's merits, in the facts and circumstances peculiar to this case, and for the reasons men"oned above, the pe""oner makes a case for bail, subject to the following terms and condi"ons, which shall be over and above and irrespec"ve of the contents of the form of bail bonds in chapter XXXIII of CrPC, 1973. 15. In Madhu Tanwar and Anr. v. State of Punjab, 2023:PHHC:077618 [Para 10, 21], CRM-M-27097-2023, decided on 29-05-2023, this court observed, [10] The exponen"al growth in technology and ar"ficial intelligence has transformed iden"fica"on techniques remarkably. Voice, gait, and facial recogni"on are incredibly sophis"cated and pervasive. Impersona"on, as we know it tradi"onally, has virtually become impossible. Thus, the remedy lies that whenever a judge or an officer believes that the accused might be a flight risk or has a history of fleeing from jus"ce, then in such cases, appropriate condi"ons can be inserted that all the expenditure that shall be incurred to trace 6 JYOTI 2024.04.26 16:37 I attest to the accuracy and integrity of this order/judgment.
CRM-M-18491-2024 2024:PHHC:057233 them, shall be recovered from such person, and the State shall have a lien over their assets to make good the loss. [21] In this era when the knowledge revolu"on has just begun, to keep pace with exponen"al and unimaginable changes the technology has brought to human lives, it is only fiEng that the dependence of the accused on surety is minimized by giving alterna"ve op"ons. Furthermore, there should be no insistence to provide permanent addresses when people either do not have permanent abodes or intend to re-locate.
Given above, provided the pe""oner is not required in any other case, the pe""oner shall be released on bail in the FIR cap"oned above, in the following terms: (a). Pe""oner to furnish personal bond of Rs. Ten thousand (INR 10,000/); AND (b) To give one surety of Rs. Twenty-five thousand (INR 25,000/-), to the sa"sfac"on of the concerned court, and in case of non-availability, to any nearest Ilaqa Magistrate/duty Magistrate. Before accep"ng the surety, the concerned court must sa"sfy that if the accused fails to appear in court, then such surety can produce the accused before the court. OR (b). Pe""oner to hand over to the concerned court a fixed deposit for Rs. Ten thousand only (INR 10,000/-), with the clause of automa"c renewal of the principal and the interest rever"ng to the linked account, made in favor of the ‘Chief Judicial Magistrate’ of the concerned district, or blocking the aforesaid amount in favour of the concerned ‘Chief Judicial Magistrate’. Said fixed deposit or blocking funds can be from any of the banks where the stake of the State is more than 50% or from any of the well-established and stable private sector banks. In case the bankers are not willing to make a Fixed Deposit in such eventuality it shall be permissible for the pe""oner to prepare an account payee demand draC favouring concerned Chief Judicial Magistrate for a similar amount. (c). Such court shall have a lien over the funds un"l the case's closure or discharged by subs"tu"on, or up to the expiry of the period men"oned under S. 437-A CrPC, 1973, and at that stage, subject to the proceedings under S. 446 CrPC, the en"re amount of fixed deposit, less taxes if any, shall be endorsed/returned to the depositor. (d). The pe""oner is to also execute a bond for aHendance in the concerned court(s) as and when asked to do so. The presenta"on of the 7 JYOTI 2024.04.26 16:37 I attest to the accuracy and integrity of this order/judgment.
CRM-M-18491-2024 2024:PHHC:057233 personal bond shall be deemed acceptance of the declara"ons made in the bail pe""on and all other s"pula"ons, terms, and condi"ons of sec"on 438(2) of the Code of Criminal Procedure, 1973, and of this bail order. (e). While furnishing personal bond, the pe""oner shall men"on the following personal iden"fica"on details:
AADHAR number
Passport number, (If available), when the aHes"ng officer/court thinks appropriate or considers the accused as a flight risk.
Mobile number (If available)
E-Mail id (If available)
The pe""oner is directed not to keep more than one prepaid SIM, i.e., one pre- paid mobile phone number, "ll the conclusion of the trial; however, this restric"on is only on prepaid SIMs [mobile numbers] and not on post-paid connec"ons or landline numbers. The pe""oner must comply with this condi"on within fiCeen days of release from prison. The concerned DySP shall also direct all the telecom service providers to deac"vate all prepaid SIM cards and prepaid mobile numbers issued to the pe""oner, except the one that is men"oned as the primary number/ default number linked with the AADHAAR card and further that "ll the no objec"on from the concerned SHO, the mobile service providers shall not issue second pre-paid SIM/ mobile number in the pe""oner’s name. Since, as on date, in India, there are only four prominent mobile service providers, namely BSNL, Airtel, Vodafone-Idea, and Reliance Jio, any other telecom service provider are directed to comply with the direc"ons of the concerned Superintendent of Police/Commissioner of Police, issued in this regard and disable all prepaid mobile phone numbers issued in the name of the pe""oner, except the main number/default number linked with AADHAR, by taking such informa"on from the pe""oner’s AADHAR details or any other source, for which they shall be legally en"tled by this order. This condi"on shall con"nue "ll the comple"on of the trial or closure of the case, whichever is earlier. In Vernon v. The State of Maharashtra, 2023 INSC 655, [para 45], while gran"ng bail under Unlawful Ac"vi"es (Preven"on) Act, 2002, Supreme Court had directed imposi"on of the similar condi"on, which reads as follows, “(d) Both the appellants shall use only one Mobile Phone each, during the "me they remain on bail and shall inform the Inves"ga"ng Officer of the NIA, their respec"ve mobile 8 JYOTI 2024.04.26 16:37 I attest to the accuracy and integrity of this order/judgment.
CRM-M-18491-2024 2024:PHHC:057233 numbers.”
The pe""oner shall not influence, browbeat, pressurize, make any inducement, threat, or promise, directly or indirectly, to the witnesses, the Police officials, or any other person acquainted with the facts and the circumstances of the case, to dissuade them from disclosing such facts to the Police, or the Court, or to tamper with the evidence.
During the trial's pendency, if the pe""oner repeats or commits any offence where the sentence prescribed is more than seven years or violates any condi"on as s"pulated in this order, it shall always be permissible to the respondent to apply for cancella"on of this bail. It shall further be open for any inves"ga"ng agency to bring it to the no"ce of the Court seized of the subsequent applica"on that the accused was earlier cau"oned not to indulge in criminal ac"vi"es. Otherwise, the bail bonds shall remain in force throughout the trial and aCer that in Sec"on 437-A of the Cr.P.C., if not canceled due to non-appearance or breach of condi"ons.
The condi"ons men"oned above imposed by this Court are to endeavour that the accused does not repeat the offence and to provide an opportunity to the vic"m to consider legal remedies for recovery of the amount. In Mohammed Zubair v. State of NCT of Delhi, 2022:INSC:735 [Para 28], Writ Pe""on (Criminal) No 279 of 2022, Para 29, decided on July 20, 2022, A Three-Judge bench of Hon’ble Supreme Court holds that “The bail condi"ons imposed by the Court must not only have a nexus to the purpose that they seek to serve but must also be propor"onal to the purpose of imposing them. The courts while imposing bail condi"ons must balance the liberty of the accused and the necessity of a fair trial. While doing so, condi"ons that would result in the depriva"on of rights and liber"es must be eschewed.”
Any Advocate for the pe""oner and the Officer in whose presence the pe""oner puts signatures on personal bonds shall explain all condi"ons of this bail order in any language that the pe""oner understands.
If the pe""oner finds the bond amount beyond social and financial reach, it may be brought to the no"ce of this Court for appropriate reduc"on. Further, if the pe""oner finds bail condi"on(s) as viola"ng fundamental, human, or other rights, or causing difficulty due to any situa"on, then for modifica"on of such term(s), the pe""oner may file a reasoned applica"on before this Court, and aCer taking cognizance, even to the Court taking cognizance or the trial Court, as the case may be, and such Court shall also 9 JYOTI 2024.04.26 16:37 I attest to the accuracy and integrity of this order/judgment.
CRM-M-18491-2024 2024:PHHC:057233 be competent to modify or delete any condi"on.
This order does not, in any manner, limit or restrict the rights of the Police or the inves"ga"ng agency from further inves"ga"on as per law.
In case the Inves"gator/Officer-In-Charge of the concerned Police Sta"on arraigns another sec"on of any penal offence in this FIR, and if the new sec"on prescribes maximum sentence which is not greater than the sec"ons men"oned above, then this bail order shall be deemed to have also been passed for the newly added sec"on(s). However, suppose the newly inserted sec"ons prescribe a sentence exceeding the maximum sentence prescribed in the sec"ons men"oned above, then, in that case, the Inves"gator/Officer-In-Charge shall give the pe""oner no"ce of a minimum of seven days providing an opportunity to avail the remedies available in law.
Any observa"on made hereinabove is neither an expression of opinion on the merits of the case nor shall the trial Court advert to these comments.
In return for the protec"on from incarcera"on, the Court believes that the accused shall also reciprocate through desirable behavior.
The SHO of the concerned police sta"on or the inves"ga"ng officer shall arrange to send a copy of this order, preferably a soC copy, to the complainant and the vic"m, without any delay. If the vic"m(s) no"ce any viola"on of this order, they may inform the SHO of the concerned police sta"on, the trial court, or even this court.
There would be no need for a cer fied copy of this order for furnishing bonds, and any Advocate for the Pe
oner can download this order along with case status from the official web page of this Court and aAest it to be a. In case the aAes ng officer wants to verify the authen city, such an officer can also verify its authen city and may download and use the downloaded copy for aAes ng bonds. Pe..on allowed in aforesaid terms. All pending applica"ons, if any, stand disposed. (ANOOP CHITKARA) JUDGE 26.04.2024 Jyo"-II Whether speaking/reasoned: Yes Whether reportable: Yes. 10 JYOTI 2024.04.26 16:37 I attest to the accuracy and integrity of this order/judgment.
Reproduced from the public record of the Punjab and Haryana High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.