In Fertico Marketing and Investment Pvt Ltd vs CBI Supreme Court Bench of Justice AM Khanwilkar and Justice BR Gavai said that if prior consent has not been obtained from the State Government u/s 6 of Delhi Special Police Establishment Act,1946.
Supreme Court held it would not vitiate the investigation unless illegality in the investigation can be shown to have caused a miscarriage of justice or prejudice to the accused.
In this case CBI conducted a joint surprise raid at the factory of Fertico Marketing and Investment Pvt Ltd, and it was discovered that the coal purchased under the FSA was sold in the black market.
CBI during raid also discovered that black marketing was done in connivance with the unknown government officials, which led to a loss of Rs. 36.28 crore to the Central Government.
CBI registered An FIR against Mr Anil Kumar Agarwal, Director company. Booked him U/S 420 and 120B of Indian Penal Code and U/S 13(2) r/w Section 13(1)(d) of Prevention of Corruption Act. The FIR was also registered against unknown officials of District Industries Centre, Chandauli.
During the course of the investigation, the CBI found that Ram Ji Singh, the then General Manager of DIC and Yogendra Nath Pandey, Asst. Manager, DIC were also in the commission of the crime.
It was further revealed that these two individuals had abused their official positions to further the cause of the erring company.
Petitioner Advocated submitted to the Supreme Court that the CBI had not taken consent from the Central Government as mentioned in Section 6 of DSPE Act. Therefore it had no powers to conduct the investigation according to the provisions of Section 6 of the DSPE Act, and as no prior consent was taken, the whole investigation was vitiated.
It was further submitted that an offence u/s 120B of IPC r/w Section 13(1)(d) od Prevention of Corruption Act could not be sustained unless there is a meeting of minds between the private individuals and the public servants and as such, the FIR could not be registered.
Hence, an investigation in a matter which concerns the conspiracy between a public servant and private individual cannot be conducted unless prior consent is taken.
Suprme Court observed although Section 5 of DPSE enables the Central Government to extend the jurisdiction and powers of Members of DSPE beyond Union Territories of a State and the same is not permissible unless the State grants consent for extension within the area of the state.
Supreme Court after going through all the facts denied to interfere with the findings of lower Court concerning not obtaining prior consent u/s 6 of the DSPE Act.