TaxTMI 
TaxTMI 
2012 (11) TMI 953
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....vely posted as Commissioner and Superintendent of Central Excise at the relevant time. The allegations are that they were involved in obtaining illegal gratification by corrupt and illegal means from the businessmen. Further the allegations are that they had conspired to conduct an unauthorized raid at the business premises of Dalip Aggarwal and Anand Aggarwal. It was alleged that in furtherance of the conspiracy accused Hemant Gandhi had shown the premises of Aggarwals to Lallan Ojha on the evening of 27-12-2011 and it was decided to conduct a raid on the morning of 28-12-2011. In the process a team of officials of Central Excise led by accused Lallan Ojha conducted surprise raid at the godown premises of Dalip Aggarwal and Anand Aggarwal on 28-12-2011 under the overall supervision and control of accused Srivastava. Then they negotiated with Aggarwals for an illegal gratification for not taking any action and made an initial demand of Rs. 2 crore which was ultimately finalized at Rs. 60 lac. A sum of Rs. 40 lac was received in cash and a cheque of Rs. 20 lac was issued by Aggarwals as security for the remaining amount of bribe. Out of the said amount, a sum of Rs. 3 lac was paid t....
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....as also no motive of the petitioner Lallan Ojha to help a private party. He also submits that there is no document of raid to show that the money recovered was of a private party. He further submits that the goods found in the godown of Aggarwals were not amenable to excuse duty. He also submits that the telephone calls between accused persons, if any, were not authentic and no reliance could be placed upon them and such taped conversation could not be used for the purpose of conviction. In this regard he relied upon Mahabir Prasad Verma v. Dr. Surinder Kaur [(1982) 2 SCC 258]. 5. Mr. Pradeep Jain, learned counsel appearing for the petitioner A.K. Srivastava adopts all the arguments of Mr. Pahwa and in addition submits that the petitioner A.K. Srivastava being a Joint Secretary, Government of India, his arrest and prosecution was barred under Section 6A(1) of Delhi Police Establishment Act. In this regard, he relies upon Dr. R.R. Kishore v CBI [142 (2007) DLT 702]. He also submits that the petitioner Srivastava is suffering from heart ailments and has undergone treatment and was not medically fit. He also seeks his bail on medical grounds and relies upon Sharad Kumar v. CBI [....
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....umber of cases by CBI and in one of those cases, he has been convicted and he has been facing trial in other cases also. He submits that this was a case of trap and initial demand of bribe was not the requirement. The accused persons having agreed to accept the bribe money after negotiations was enough to bring their case within Section 7 and Section 13(1)(d) of PC Act in addition to other sections read with Section 120B IPC. With regard to the plea of telephonic conversation, he submits that though this tape recorded conversations may not be the basis of conviction, but in view of the existence of other sufficient evidence against the petitioners, the taped conversation could be relied upon as corroborative evidence. 8. I have heard learned counsel for the petitioners and also learned Standing Counsel for CBI and perused the record. 9. The essential ingredients of Section 7 are that (i) the person who accepts gratification should be a public servant, (ii) he should have accepted the gratification for himself and the gratification should be as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his o....
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....ized. Though the transcript of taped conversation cannot be used as a substantive piece of evidence, but having seen the transcript of the conversation that took place between the accused persons/petitioners before and after the raid, it would be prima facie seen that it was all planned to extort money from Aggarwals under the fear of raid. Further it is also gathered from the information provided by Rekha Rani, PS to Srivastava that Hemant Gandhi was frequent visitor to the office of Srivastava. In her statement she stated this fact and also that she had noted down the mobile number of Hemant Gandhi on several occasions as part of her duties. Not only that the other senior officers namely Pradeep Kumar and B. Mohan, who were working under Srivastava, had identified the voice of Srivastava in the recorded conversation, but the report of CFSL also confirmed the same. 14. The initiation of conduct of raid vests in Srivastava and Lallan Ojha. Though the demand was made by Lallan Ojha through petitioner Hemant Gandhi, but the entire raid was under the control and supervision of Srivastava. It was after raid that a payment of Rs. 2 crore was made as a bribe, but after negotiation ....
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....t. (2) Notwithstanding anything contained in sub-section (1), no such approval shall be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any gratification other than legal remuneration referred to in clause (c) of the Explanation to Section 7 of the Prevention of Corruption Act, 1988 (49 of 1988)." 16. In the case of R.R. Kishore (supra), the complainant sent a complaint dated 16-12-2004 to CBI alleging therein that he had met the petitioner/accused on 14-12-2004 and the later informed him that four members of the appropriate authority have become corrupt and were demanding Rs. 20,000/- each and, therefore, petitioner/accused demanded a sum of Rs. 80,000/- from him in two installments of Rs. 40,000/- each in two/three days. It was alleged that since the complainant did not want to pay the bribe, he made a complaint against him to CBI on 16-12-2004 at 2pm. The FIR was registered under Section 7 and the matter was entrusted to investigating officer. It was in this factual matrix that it was held that initiation and conduct of investigation on 16-12-2004 itself was in contravention of provisions of Section 6A(1....
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.... not include within its ambit the cases of disproportionate assets and also trap cases. With regard to the plea of petitioner Srivastava of medical ground, it was submitted by learned Standing Counsel for CBI that this petitioner was getting required medical treatment in Jail Hospital and as per medical report of AIIMS, his condition is normal. This fact could not be controvered by learned senior counsel for the petitioner. Be that as it may, there is no complaint of lack of proper medical treatment of petitioner A.K. Srivastava in jail hospital. There is also no reason to doubt that all kinds of medical treatment that may be required by petitioner A.K. Srivastava will be provided to him by jail authorities, as per rules. In the case of Sharad Kumar (supra) one of the grounds for grant of bail of accused Karim Morani, was on the facts of his physical condition. So far as invocation of plea of medical ground is concerned, it was all to depend upon the facts and circumstances of each case and one case cannot be a precedent for the other cases. 19. With regard to the plea of petitioner Hemant Gandhi of parity with Aggarwals, it may be noted that by any reason, role of both of th....