Gauhati High Court
Page No.# 1/12 vs The State Of Assam on 18 June, 2025
Page No.# 1/12
GAHC010106442025
2025:GAU-AS:8145
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./1633/2025
TANBIR YUSUF AHMED
S/O- SALAH UDDIN AHMED
R/O- HOUSE NO. 20
BISHNU RAVA PATH
BELTOLA
JYOTI PRASAD AGARWALA BYE LANE
POLICE STATION - HATIGAON
GUWAHATI - 781028
DISTRICT - KAMRUP (M)
ASSAM
VERSUS
THE STATE OF ASSAM
REPRESENTED BY THE PUBLIC PROSECUTOR
ASSAM
------------
Advocate for : MR. A M BORA
Advocate for : PP
ASSAM appearing for THE STATE OF ASSAM
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BEFORE
HONOURABLE MRS. JUSTICE MITALI THAKURIA
ORDER
18.06.2025
Heard Mr. A. M. Bora, learned Senior Counsel assisted by Mr. V. A.
Choudhury, learned counsel for the petitioner. Also heard Mr. P. Kataki, learned
Special Public Prosecutor, C.M (Vigilance) assisted by Mr. P. P. Dutta, learned
counsel for the respondent.
2. This is an application under Section 483 of the Bharatiya Nagarik Suraksha
Sanhita, 2023, seeking the grant of bail to the accused/petitioner, who was
arrested on 04.04.2025 in connection with Vigilance P.S. Case No. 08/2025,
registered under Sections 12, 13(1)(b), and 13(2) of the Prevention of
Corruption Act, 1988.
3. The scanned copy of the Trial Court record, as called for, has already been
received and the State respondent has also filed the written objection, which I
have perused the same.
4. It is submitted by the learned Senior Counsel for the petitioner, Mr. Bora,
that the entire case is based on documentary evidence. The Investigating
Officer (IO) has collected all the relevant documents during the investigation, on
the basis of which the charge sheet has been filed against the present
petitioner. The petitioner contends that, after obtaining his B.Tech degree from
NIT Silchar in 2015, he joined Infosys as an Analyst. Thereafter, he returned to
Assam and appeared for the Combined Competitive Services Examination in
2017, which he successfully cleared on 16.11.2018. Accordingly, he was
appointed to the Assam Land and Revenue Service (Junior Grade) as a Circle
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Officer and was initially posted at the Dudhnoi Revenue Circle. Subsequently, he
was transferred to the Khoomtai Revenue Circle, where he served as a Circle
Officer for a period of two years. He was then transferred to the Nagarbera
Revenue Circle on 23.02.2024 and, within a very short span, was again
transferred to the Dalgaon Revenue Circle in Darrang District. At the time of his
arrest on 04.04.2025, he was serving as the Circle Officer of the Samaguri
Revenue Circle, as per Notification No. LA&A/508721/117-A, dated 09.01.2025.
5. He further submitted that on 03.04.2025, an FIR was lodged before the
Officer-in-Charge, Vigilance Police Station, Chief Minister’s Special Vigilance Cell,
Assam, in connection with Regular Enquiry No. 07/2025 initiated at the Vigilance
Police Station, wherein, it was found that the petitioner possessed
disproportionate assets amounting to Rs. 79,42,913.06/- (Rupees seventy-nine
lakhs forty-two thousand nine hundred thirteen and six paisa) against his known
sources of income and accordingly, the case was registered being Vigilance P. S
Case No. 08/2025, under Sections 12, 13(1)(b), and 13(2) of the Prevention of
Corruption Act, 1988, and investigation commenced.
6. It is further submitted that prior to petitioner’s arrest, he was never called
for any enquiry regarding the allegations made in the FIR, and no documents
were also asked for, by the IO with regard to the allegations raised in the FIR.
Moreover, while issuing the notice under Section 47 of the BNSS, in serial No. 3
of the ground for arrest, it is specifically stated that the petitioner failed to
satisfactorily explain the sources of wealth and assets that significantly
exceeded his legitimate earnings. However, the petitioner was never given any
opportunity to provide such an explanation and was unaware of any regular
enquiry being conducted against him by the IO. Nevertheless, the case was
registered, and accordingly, the petitioner was arrested on 04.04.2025 and has
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been in custody since then. As the case has already been charge-sheeted, the
present petitioner is required to prepare his defence. Hence, his bail petition
may be considered so that he can personally meet his engaged counsel to take
proper defence measures.
7. Mr. Bora raised the issue that the Principal Secretary to the Government of
Assam, Home and Political Department, vide Office Memorandum No.
PLA(V)139/2009/5-A, dated 13.11.2009, provides that “in continuation of office
Memorandum No. PLA(V)55/2003/12, dated 16.06.2004 and office
Memorandum No. PLA(V)55/2003/47, dated 19.04.2008 and after careful
examination of the existing provision and with a view to expediting the
implementation of Vigilance and Anti Corruption measures, the Governor of
Assam is pleased to order the following provision after sub para (3) of para (C)
of office Memorandum No. PLA (V)55/2003/12, dated 16.06.2004 for disposal of
regular enquiry and initiation of criminal investigation:-
(1) Notwithstanding anything contained in any provision of earlier Office Memorandum in this
regard the enquiry officer through the Directorate of Vigilance & Anti Corruption shall collect the
details of income and expenditure as well as other requirements such as assets and liabilities from the
suspect officer/employee. If the suspect officer/employee fails to respond to furnishing the required
information/statements etc. within 30 (thirty) days from the date of receipt of requisition from the
Directorate of Vigilance and Anti Corruption, the Directorate of Vigilance & Anti Corruption shall
move to the Government on the Political Department for approval to register a criminal case against
the defaulting suspect officer/employees;
Provided that the Directorate of Vigilance and Anti Corruption while seeking the required
information from the suspect officer/employee shall inter alia specify in the requisition letter that
failure to furnish the information within stipulated period shall invite the process for registration of
criminal case.
Provided further that the Directorate of Vigilance & Anti Corruption shall ensure the receipt of
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such requisition by the concerned suspect officer/employee against whom the registration of criminal
investigation is proposed.”
8. He further submitted that, as per the office Memorandum dated
13.11.2009, if the suspect officer/employee fails to respond to furnishing the
required information/statements etc. within 30 days from the date of receipt of
the requisition from the Directorate of Vigilance & Anti-Corruption, the
Directorate of Vigilance & Anti Corruption shall move the Government in the
Political Department for approval to register a criminal case against the
defaulting suspect officer/employee. However, in the instant case, the present
petitioner was never provided any opportunity to explain or to submit
documents as per the notification, even though a regular enquiry was
conducted against him before lodging the FIR. Therefore, the registration of
Vigilance P.S. Case No. 08/2025 under Sections 12, 13(1)(b), and 13(2) of the
Prevention of Corruption Act, 1988, without issuing any requisition to the
petitioner prior to registration, is illegal, arbitrary, and violative of the guidelines
enumerated in the office Memorandum dated 13.11.2009. More so, to date, the
petitioner has not received any letter from the Joint Secretary to the
Government of Assam, Personnel (A) Department, seeking any explanation or
providing any opportunity of hearing to him.
9. Mr. Bora also submitted that the instant case, has been registered only
under Section 13(1)(b) and not under Section 13(1) (a), further presumption
under Section 13 itself, is not attracted against the petitioner as the
presumption shall only be against the petitioner when the petitioner or public
servant cannot be satisfactorily account for. Here, is a case where the
opportunity itself was not given to the petitioner to satisfy the concerned
agency as to the property appropriate to his known source of income. This is a
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gross violation of the natural justice to which all the citizens under the
Constitution of India are entitled to and as such the petitioner herein submits
that it is fit case to invoke the power under Section 483 of BNSS and prays to
release the accused/petitioner on regular bail.
10. He further submitted that the petitioner’s earlier bail application was
rejected considering the materials available in the Case Diary. However, the
investigation has now been completed by the IO, and all relevant documents
have been collected and seized in connection with the case. Additionally, the
petitioner is currently under suspension, and hence, there is no question of
tampering with official documents at this stage. Being a permanent resident of
the addressed locality, there is no likelihood of the petitioner absconding, and he
is willing to furnish genuine surety if granted bail. On the contrary, the petitioner
undertakes to appear before the learned Trial Court on each and every date
fixed, to face the trial.
11. Mr. P. Kataki, learned Special Public Prosecutor, C.M. (Vigilance), has
submitted both orally and through written objections that the learned counsel
for the petitioner primarily raised the issue that Vigilance P.S. Case No. 08/2025
was registered without issuing any requisition to the accused/petitioner to
explain his position regarding the allegations prior to the registration of the
case. However, the office Memorandum issued under Memo No. PLA(V)
139/2009/5-A, dated 13.11.2009 by the Principal Secretary to the Government
of Assam, Home and Political Department, is merely advisory in nature.
Moreover, the said office Memorandum pertains to inquiries carried out by the
Directorate of Vigilance & Anti-Corruption and does not have any binding effect
on enquiries or investigations conducted by the Chief Minister’s Special Vigilance
Cell, which was created vide Notification No. HMS.94/84/11 dated 09.02.1984.
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The Chief Minister’s Special Vigilance Cell, Assam, does not fall under the
purview or jurisdiction of the Directorate of Vigilance & Anti-Corruption. It is
further submitted that the office Memorandum dated 13.11.2009 cannot
supersede or curtail the statutory powers of investigation into the cognizable
offences vested in the investigating authority, i.e., the Chief Minister’s Special
Vigilance Cell, Assam as the case may be.
12. He further submitted that, prior to the arrest of the accused/petitioner, the
IO conducted a preliminary enquiry and collected relevant documents from
various stakeholders, including bank authorities, the Department of Personnel,
and the Department of Revenue and Disaster Management, among others. The
accused/petitioner was questioned on 03.04.2025 regarding the source of his
substantial accumulated wealth over a relatively short period of five years but
failed to provide a satisfactory explanation. Furthermore, he was interrogated on
both 03.04.2025 and 04.04.2025 concerning the sources of his accumulated
assets during the said five-year period; however, he declined to respond and did
not cooperate with the investigation. Therefore, the petitioner’s contention that
he was not given an opportunity to explain the source of his wealth and assets
is incorrect.
13. Mr. Kataki further submitted that it is the responsibility of the prosecution
to establish that the accused, or any person on his behalf, was in possession of
pecuniary resources or property disproportionate to his known sources of
income. Once this onus is discharged by the prosecution, it becomes incumbent
upon the accused to provide a satisfactory explanation for the disproportionality
of the assets found in his possession. In this context, he relied on the judgment
of the Hon’ble Apex Court in K. Veeraswami vs. Union of India & Ors.,
reported in (1991) 3 SCC 655, and specifically referred to paragraphs 72, 73,
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and 74 of the said judgment, which read as under:
“72. The soundness of the reasoning in Wasudeo Ramachandra Kaidalwar case
(supra) has been doubted. Counsel for the appellant urged that the view taken
on Section 5(3) cannot be imported to clause (e) of Section 5(1) and the decision,
therefore, requires reconsideration. But we do not think that the decision requires
reconsideration. It is signifi- cant to note that there is useful parallel found in Section
5(3) and clause (e) of Section 5(1). Clause (e) creates a statutory offence which must
be proved by the prosecution. It is for the prosecution to prove that the accused or
any person on his behalf, has been in possession of pecuniary resources or property
disproportionate to his known sources of income. When that onus is discharged by the
prosecution, it is for the accused to account satisfactorily for the disproportionality of
the properties possessed by him. The Section makes available statutory defence which
must be proved by the accused. It is a restricted defence that is accorded to the
accused to account for the disproportionality of the assets over the income. But the
legal burden of proof placed on the accused is not so onerous as that of the
prosecution. However, it is just not throwing some doubt on the prosecution version.
The Legislature has advisedly used the expression “satisfactorily account”. The
emphasis must be on the word “satisfactorily”. That means the accused has to satisfy
the court that his explanation is worthy of acceptance. The burden of proof placed on
the accused is an evidential burden though not a persuasive burden. The accused
however, could discharge that burden of proof “on the balance of probabilities” either
from the evidence of the prosecution and/or evidence from the defence.
73. This procedure may be contrary to the well known principle of criminal
jurisprudence laid down in Woolmington v. Director of Public Prosecution, [1935] A.C.
462 that the burden-of proof is always on the prosecution and never shifts to the
accused person. But Parliament is competent to place the burden on certain aspects
on the accused as well and partic- ularly in matters “specially within his knowledge”.
(Section 106 of the Evidence Act). Adroitly, as observed in Swamy case (at 469) and
reiterated in Wasudeo case (at 683), the prosecution cannot, in the very nature of
things, be expected to know the affairs of a public servant found in possession of
resources of property disproportionate to his known sources of income. It is for him to
explain. Such a statute placing burden on the accused cannot be regarded as unrea-
sonable, unjust or unfair. Nor it can be regarded as contrary to Article 21 of the
Constitution as contended for the appellant. It may be noted that the principle re-
affirmed in Woolmington case is not a universal rule to be followed in every case. The
principle is applied in the absence of statutory provision to the contrary. (See the
observations of Lord Templeman and Lord Griffiths in Rig. v. Hunt, [1986] 3 WLR 1115
at 1118 and 1129).
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74. Counsel for the appellant however, submitted that there is no law prohibiting a
public servant having in his possession assets disproportionate to his known sources of
income and such possession becomes an offence of criminal misconduct only when the
accused is unable to account for it. Counsel seems to be focusing too much only on
one part of clause (e) of Section 5(1). The first part of clause (e) of Section 5(1) as
seen earlier relates to the proof of assets possessed by the public servant. When the
prosecution proves that the public servant possesses assets disproportionate to his
known sources of income the offence of criminal misconduct is attributed to the public
servant. However, it is open to the public servant to satisfactorily account for such
disproportionality of assets. But that is not the same thing to state that there is no
offence till the public servant is able to account for the excess of assets. If one
possesses assets beyond his legitimate means, it goes with- out saying that the excess
is out of ill-gotten gain. The assets are not drawn like nitrogen from the air. It has to
be acquired for which means are necessary. It is for the public servant to prove the
source of income or the means by which he acquired the assets. That is the substance
of clause (e) of Section 5(1).”
14. Further, to substantiate the plea concerning the supervisory nature of the
memorandum, he also placed reliance on the judgment of the Hon’ble Apex
Court in State of Haryana vs. Mahender Singh & Ors., reported in (2007)
13 SCC 606, and emphasized on paragraph 39 of the said judgment, which
reads as under:
“39. It is now well-settled that any guidelines which do not have any statutory
flavour are merely advisory in nature. They cannot have the force of a statute. They
are subservient to the legislative Act and the statutory rules. [See Maharao Sahib Shri
Bhim Singhji v. Union of India and Others (1981) 1 SCC 166, J.R. Raghupathy and
Others v. State of A.P. and Others (1988) 4 SCC 364 and Narendra Kumar Maheshwari
v. Union of India 1990 (Supp) SCC 440].
15. In this regard, Mr. Bora, learned Senior Counsel, submitted that why the
petitioner was served with a notice only for providing an explanation if the
memorandum is to be considered advisory in nature. He further submitted that
although the onus lies with the prosecution, no notice was issued in connection
with any regular enquiry conducted by the prosecution prior to the registration
of the case against the petitioner. Accordingly, he contended that the petitioner
Page No.# 10/12was not afforded any opportunity to offer an explanation regarding the alleged
disproportionate assets and properties in his possession.
16. Mr. Kataki, learned Special Public Prosecutor has submitted that the
petitioner will have the opportunity to rebut the prosecution’s case during the
trial by producing reliable and admissible evidence. Moreover, as the case is still
under investigation, considering the facts and circumstances, the magnitude of
the offence committed by the accused/petitioner, and the materials collected so
far, it is not a fit case to grant bail at this stage. Further, he submitted that
several witnesses, including subordinate staff of the accused/petitioner and
some of his relatives, are yet to be examined, and there is every chance of
evidence being hampered or tampered with. Hence, the petitioner should not be
granted bail at this stage. Additionally, the petitioner is technically proficient and
familiar with the functioning of the e-Dharitree portal and website, and may
potentially manipulate any undiscovered assets. Thus, he raised an objection to
granting bail to the accused/petitioner.
17. After hearing the submissions made by the learned counsels for both sides,
it is seen that an earlier bail application filed by the accused/petitioner was
rejected vide order dated 06.05.2025 in Bail Application No. 1228/2025, upon
perusal of the case diary and consideration of the incriminating materials
available against the petitioner. The present petition has been filed after
submission of the charge sheet, primarily on the ground that the petitioner was
not given an opportunity to provide a satisfactory explanation regarding the
allegation of possessing disproportionate assets.
18. Mr. Bora, learned counsel for the petitioner, has raised the issue of non-
service of notice and the alleged denial of an opportunity to respond during the
course of the regular enquiry conducted by the department. He referred to the
Page No.# 11/12Office Memorandum dated 13.11.2009, which stipulates that the Directorate of
Vigilance & Anti-Corruption must provide sufficient opportunity to the suspect
officer/employee to offer an explanation. He submitted that a requisition letter
should have been issued to the officer concerned and that only upon failure to
furnish a satisfactory response could criminal proceedings be initiated. This
raises the question as to whether the initiation of a criminal proceeding is barred
in the absence of compliance with the procedure laid down in the office
Memorandum.
19. Now the question arises as to whether such criminal proceeding is barred
without following the guideline of office memorandum. As per service
jurisprudence and various decisions of the Hon’ble Apex Court as well as the
High Court’s has held that there is no legal impediment to conduct criminal and
departmental proceedings concurrently. They operate under different standards
of proof, however under certain circumstances, the departmental proceeding
may be considered for stay by the court, if it is shown that the criminal trial
would be seriously prejudice by the departmental enquiry and not otherwise. It
is also to be taken note of that the acquittal in criminal proceedings does not
automatically bar Departmental Proceedings as because the degree of proof
required or to be established is of different state. Reference in this regard can
be made in case of the Capt. M. Paul Anthony vs. Bharat Gold Mines Ltd.
& Anr., reported in (1999) 3 SCC 679. Criminal offence is against the State at
large as the crime is against the society. In such circumstances can any
Government Department Notification bars criminal proceeding to cognizable
offence? Should the Department Head wait till completion of Preliminary Enquiry
before lodging FIR, when there is prima facie material of commission of criminal
offence? The answer is simply ‘No’.
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20. Moreover, criminal proceedings operate in a separate domain and are
distinct from departmental proceedings. In the present case, a charge sheet has
already been filed, indicating prima facie involvement of the petitioner in large-
scale misappropriation and corrupt practices, including the alleged siphoning of
substantial public funds, which directly impacts society.
21. Given the nature and gravity of the offence, and in view of the fact that
several subordinate staff members, who are likely to be witnesses may be
susceptible to influence, the possibility of tampering with evidence cannot be
ruled out at this stage. This is further supported by the statements of witnesses
recorded under Section 183 of BNSS. Although the case is also based on
documentary evidence, some of which has already been collected by the IO, the
apprehension raised by the learned Special Public Prosecutor regarding possible
manipulation of such documents cannot be dismissed at this stage, particularly
considering the petitioner’s technical expertise and familiarity with the e-
Dharitree portal/website.
22. In view of the foregoing discussion, and taking into account the nature and
seriousness of the alleged offence, as well as the likelihood of tampering with
evidence or influencing witnesses, this Court is of the considered opinion that
granting bail to the accused/petitioner at this stage is not justified. Accordingly,
the prayer for bail is hereby rejected.
23. In light of the above observation, this bail application stands disposed of.
JUDGE
Comparing Assistant