Seeking transfer of the investigation related to the alleged Nagrik Apurti Nigam (NAN) scam in Chhattisgarh, the Enforcement Directorate (ED) told the Supreme Court on Monday that “a sitting judge of the High Court was in touch with constitutional authorities who were helping the accused”.
Two senior IAS officers, Anil Tuteja and Alok Shukla, are among those charged in the alleged multi-crore NAN scam which emerged in 2015, during the previous BJP government in Chhattisgarh. A probe was launched following allegations of corruption in the public distribution system — NAN is the agency in charge of distribution and procurement of foodgrains.
“Please go through the material. If this comes out in public domain, it might shake people’s faith in the system because of individuals involved… A sitting judge of the High Court was in touch with constitutional authorities who were helping the accused… Would Your Lordships like to make it public,” Solicitor General Tushar Mehta, who was appearing for the ED, told a bench led by Chief Justice of India U U Lalit, as the counsel for the state government took objection to submission of material in a sealed cover.
Senior Advocate Mukul Rohatgi, appearing for the respondents, said a judge was not above the law.
Mehta said he was leaving the decision to the court, adding, “I will not oppose if it is to be made public”. He said the ED had material which showed that the prime accused in the case “were in touch with a constitutional functionary through an intermediary before being granted anticipatory bail” in the corruption cases against them.
“It has emerged that a senior functionary of the government of Chhattisgarh” is “actively involved in weakening of the predicate offence, i.e. case of corruption, against both the prime accused during the trial” and the accused “continues to occupy senior administrative position in the present government and continues to look after General Administration Department,” he said.
Listing other charges, including tampering of documents, influencing witnesses, and intimidation of the officer who granted sanction for prosecution of the accused, Mehta said: “When I (ED) realised” that two of the accused “were in close contact with the two constitutional functionaries who played a role in grant of anticipatory bail and I (ED) came to know they are preparing typed statements of the witnesses to be filed, I (ED) moved this court”.
The SC issued notice in December 2021, but the matter did not come up for hearing after that though he had mentioned it “not less than six times” and filed written notes “not less than 10 times” saying the trial was proceeding and the matter was getting infructuous, said Mehta.
Countering the submissions, Rohatgi said: “You have read this out to prejudice my case. But you don’t file the material. This is not material which can be kept back from me if you are going to rely on it”. He said there are SC judgements against adopting the sealed cover procedure.
Senior Advocate Kapil Sibal said the chargesheet in the case was filed when the BJP government was in power in the state, and no fresh investigation was conducted under the Congress government. He said if the ED files material in sealed cover, the state would also like to place on record some evidence relating to 2011.
Allowing the two sides to place the material before it, the bench, also comprising Justices S Ravindra Bhat and Ajay Rastogi, said: “In case we find the material can be made public, we will certainly give the copies to the other side. At this point of time, it appears that the submission was made that the investigation needs to be transferred and this court issued notice in November 2021. We are in the month of September which means 10 months have gone by. So therefore in our view, before we allow the trial to conclude, at least we must apply our mind whether we accept or not accept this submission.”
The court added: “We are not saying, at this stage, anything about the trial being suspended, transferred etc, but… before the trial concludes and the judgement is delivered, we must at least make an attempt to see whether there is any substance in what the other side is saying and whether it requires any consideration”.
Appearing for an intervenor, Advocate Prashant Bhushan said the “investigation leaves much to be desired” and asked for the probe to be transferred to an independent agency and monitored by a competent court.
The SC will hear the matter next on September 26.
The alleged multi-crore NAN scam had emerged in 2015, during the previous BJP government in Chhattisgarh, when civil society and the Opposition had raised allegations of corruption in the public distribution system. Rice millers and agents were alleged to have paid kickbacks to officials to allow substandard rice to be distributed through the state’s PDS.
The government had then started a probe by the Anti-Corruption Bureau (ACB) and Economic Offences Wing (EOW). Senior IAS officers Anil Tuteja and Alok Shukla were among those charged in the alleged scam. While Shukla was then the NAN chairman, Tuteja was its managing director.
Within days of the Congress coming to power in December 2018, Chief Minister Bhupesh Baghel announced the formation of an SIT. Shukla and Tuteja, who were absconding after the chargesheet was filed, applied for anticipatory bail and were appointed in the government. While Shukla, who was due to retire, got an extension and is posted as principal secretary in various departments including education and skill development, Tuteja is joint secretary in the commerce and industries department.
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In August 2020, the Chhattisgarh High Court granted them anticipatory bail, which the ED has now challenged in the SC. In its petition, the ED has said that “both these prime accused persons wield substantial political and administrative power and are very close to the Hon’ble Chief Minister, State of Chhattisgarh.”
In its affidavit to the Supreme Court in September 2021, the ED had said it had “cogent evidence” that the current government helped the two main accused by putting pressure on officials investigating the case and “sharing the relevant and confidential information of investigation carried on by EOW/ACB with the prime accused and navigating investigation/report by the SIT as per desires of both the prime accused”.