Ghulam
Din Buch etc. Vs. State of Jammu & Kashmir [1996] INSC 494 (3 April 1996)
Hansaria
B.L. (J) Hansaria B.L. (J) Ray, G.N. (J) Hansaria. J.
CITATION:
1996 AIR 1568 JT 1996 (4) 515 1996 SCALE (3)271
ACT:
HEAD NOTE:
The
1975 accord with Sheikh Abdullah saw a dynamic person from Ladakh coming to the
fore. He was made a Minister. He wanted to do many things for Ladakhis. One of
the projects which the Minister (Shri Sonam Narboo) wanted to get fructified
was electrification of tehsils of Leh and Kargil. The fund for the same was to
be provided by the Central Government under Rural Electrification Scheme. To
see that the scheme was implemented within time, a separate Electric
Construction Division was created at Leh. This was in February 1977. An
Executive Engineer was put in charge of the Division and he was one N.A. Salaria,
who was selected because of his dashing character which had come to light by
his getting established a generating station at Choglamsar within record time.
The electrification scheme was taken up after Shri Narboo, who was Minister for
Works, Power,Tourism and Ladakh Affairs, had toured the area from 5.6.1976 to
13.7.1976. The idea was to electrify areas around Leh first for which it was
felt that 3100 bamboo poles would be required. It was also noted that from
September onwards the fruit session starts and all available transport is
diverted to carry fruits to the plane and no transport is available for Ladakh.
This apart, food grains are required to be stored in Kashmir valley and Ladakh to cater to the
needs of the people during winter season. This being high priority ares, the
concern of the Government is to see that this work does not suffer for want of
transport vehicles.
2. It
is in the aforesaid situation and scenario that Salaria took up work in right
earnest from first week of September 1977, after the Chief Engineer, Electric
Maintenance and RE, Kashmir had toured the two tehsils from
17th to 23rd August,
1977. The work was to
arrange transport vehicles to carry required number of poles to Leh before
November, after which Ladakh region becomes virtually inaccessible. The
allegation is that the situation permitted persons in the Power Department to
take advantage of the same and a conspiracy was hatched to give contract of
transportation to such persons who showed their willingness to share the booty
with the officers. According to the prosecution, these persons included even
the highest officer of the Power Department, namely, Power Development
Commissioner and it went down to the Sectional Officer. The conspiracy came to
the notice of none else than Shri Narboo as some complaints were received by
him in November, 1977 regarding giving of contract of transportation to private
firms on per kilometer per pole basis and the poles being also of sub-standard
quality. He wanted wanted information about the same by writing a D.O. letter
to the Power Development Commissioner on 18.11.1977 followed by a reminder on
5.12.1977. After receipt of reply, the Minister asked for a report from the Chief
Engineer. On receipt of the same, he felt the matter required deeper probe and
appointed Qazi Mohd. Afzal as Enquiry Officer in December, 1977. His report was
submitted on 3.4.1978 which highlighted some serious irregularities. After
considering the report, the Government entrusted the matter for further probe
to the Anti-Corruption Organization set up under the (Jammu & Kashmir)
Prevention of Corruption Act, 2006, (hereinafter the Act). A case was
accordingly registered on 26.4.1978 and a Senior Superintendent of Police, one Shri
S.S. Ali, was entrusted with the investigation, who after completion of the
same and after obtaining sanction from the Government, submitted charge-sheet
on 10.8.1978 against 42 accused.
3. It
the trial which commenced, after discharge of one (a labourer), 65 witnesses
were examined by the prosecution and 2 by the defence. Great number of
documents were also exhibited. The trial court by its very exhaustive judgment
dated 29.9.1981, which runs into 420 pages, acquitted 11 persons including
Power Development Commissioner, Shri Ahangar and Chief Engineer, Shri Naqash;
and convicted 30 under various sections of law including section 120-B Ranbir
Penal Code and section 5(2) of the Act.
4. On
appeal being preferred, the High Court of Jammu & Kashmir acquitted 19 more
including Superintending Engineer Shri Kaul and sustained conviction of 11
persons who are the appellants in the 10 appeals at hand. Of them, 7 are
officials and 4 are contractors. The officials are : (1) Executive Engineer,
N.A. Salaria; (2) Assistant Engineer, G.D. Buch; (3-4) two employees of the
Chief Engineer's office - T.K. Kantroo and V.K. Razdan; (5-7) three officers
who had passed the poles-they being H.L. Dhar, Farooq Ahmed Zadoo and Mohd. Siddiq.
The four contractors are;
(1) Hafeezullah;
(2) Farooq
Ahmed Qurashi;
(3)
Abdul Rashid Khan; and
(4)
Peer Gulam Nabi.
5. The
appeals being by the convicted persons and there being no appeal against
acquittals either by the trial court or the High Court, it is apparent that we
have to see whether the persons ultimately convicted by the High Court had been
rightly found guilty of the charges, inter alia, of conspiracy. We have
mentioned about this aspect at the threshold because the principal charge being
of conspiracy and that too involving highest officer of the Power Department,
and he having been acquitted even by the trial court along with the Chief
Engineer, followed by acquittal of Superintending Engineer by the High Court,
we shall have to see whether the links which have been left in the chain of
conspiracy do leave a thread to piece together the actions of the convicted
appellants so as to establish a conspiracy by them.
6.
Many of the learned counsel appearing for the appellants made a grievance that
the State has allowed higher ups to remain unavailable to this Court and has
thought it fit to press the case against small fry.
According
to them if there was a conspiracy at all, the same could not have been worked
out without the connivance of at least the Chief Engineer and Superintending
Engineer. Shri Handoo, appearing for the State, felt some what uncomfortable at
the non-filing of the appeals by the State, first in the High Court and then in
this Court against the acquittals of higher-ups. But then, no appeal having
been filed, the ultimate submission was that the core of the conspiracy had not
been adversely affected by the acquittals and the evil design resulting in
causing wrongful loss to the State Exchequer by causing wrongful gain to the
contractors and themselves has to be punished. Differently put, the submission
was that the inner circle of the two concentric circles has not been damaged
because of the outer circle getting wiped out. According to Shri Handoo,
therefore, the acquittals of the higher-ups cannot per se see the acquittals of
the appellants.
7. To
appreciate the aforesaid submission, we have basically to note the key role
assigned to appellant Salaria who, according to the prosecution, was duly
supported by appellant Buch. These two according to Shri Handoo were the main
actors in the drama, which was enacted about two decades back in an area which
had not seen a conspiracy of the type at hand causing loss of lacs to the State
Exchequer, which had drawn attention even of the State Cabinet.
8. Loss
of lacs (the total loss to the State Exchequer having been estimated at
Rs.1,62,117.89) was undoubtedly of great concern two decades earlier and we can
appreciate the great consternation this case had caused in the State requiring
appointment of a senior Sessions Judge to constitute the Special Court under
the Act to try the case.
The
heroic effort made by the prosecution to bring home the guilt also speaks for
itself. The lapse of time, therefore, cannot be allowed to come to the aid up
the appellants, as has been one of the submissions on behalf of the appellants,
based on the fact of long suffering already undergone. We would, therefore,
examine the materials on record objectively without being influenced by the
hardship undergone, which could be taken note of, if need would arise, while
dealing with the question of sentence. May it be stated that we would undertake
this exercise as we are satisfied about the core of conspiracy, referred to by Shri
Handoo as inner circle of the conspiracy, having remained unaffected despite
aforesaid acquittals, as would appear from what is being state later.
9. The
first and foremost question which neeeds to be looked into is whether the acts
attributed to the appellants were at all meant to cause wrongful loss to the State
by the alleged conspiracy. Almost all the learned counsel appearing for the
appellants were at pains to convince us that the arrangement which was made
with the contractors to carry poles was not at all aimed to cause any wrongful
gain to them inasmuch as payment on the basis of per kilometer per pole was not
a new device adopted in 1977 for the first time, but that had been in vogue at
least since 1971. This apart, the rates which were agreed upon was also quite
reasonable. The same was 30 or 35 paise per k.m. per pole depending upon the
size, which is in the close neighborhood of what had been paid even in 1976 for
carving poles to Leh itself by the arrangement finalised by Shri Bassu, who was
the immediate predecessor of Salaria. Shri Handoo seriously contested this
claim and urged that per k.m. basis had been adopted for the first time in 1977
for long haulage; in earlier years this was being accepted for carrying
materials to short distances. As to the reasonableness of rates, the State's
case is that the amount agreed to be paid was almost three times of what was
being paid earlier.
10. We
would, therefore, first examine the aforesaid crucial question. We would then
see whether the giving of contract at the lowest tendered rate made any
difference.
Reasonableness
of the contractual rates.
11.
There is no dispute before us that the Road Transport Corporation (RTC)
functioning in the State of Jammu & Kashmir, which owns a fleet of
vehicles, used to charge on the basis of per truck, and not per k.m. This rate
was Rs.1400/- in the relevant year. The private transport carriers also used to
charge the same amount per truck. But then, the number of poles to be carried
by these trucks to a place like Leh used to be around 25. This made a
difference, according to the learned counsel for the appellants, as the number
of poles carried by the trucks which had been engaged by the contractors at
hand used to be even 70. Shri Handoo contended that though the number of poles
carried were more, the same did not really matter inasmuch as total cft (cubic
feet) transported was not in any significant manner more than carried by the
trucks of RTC or private transport owners because each of those trucks used to
carry about 280 cft, whereas from Statement No.2 filed by Shri Thakur it would
appear that the cft carried in the present case ranged between 200 to 300,
though in some cases it went upto 400 also. As to the contention that the rates
of carriage per pole came to 30.49 paise insofar as the transportation done by Shri
Bassu is concerned, Shri Handoo's submission was that this calculation as put
on record on behalf of the appellants is wrong. As per his contention the per
pole rate then was 9.36 paise as mentioned in the Charge-Sheet filed in the
case, a copy of which is from pages 1 to 86 of Volume I of the Paper Book
prepared by the appellants. This figure has been mentioned at page 72 of this
Volume.
12. As
to the calculation furnished on behalf of the appellants - the same being that
the rate was Rs.30.49 per pole if what was paid for the carriage to Leh in 1976
during the incumbency of Shri Dassu - we would observe that that calculation
has been arrived at by showing, inter alia, that the charge of loading and
unloading per pole at Rs.52. When Shri Thakur was questioned on this, the
learned counsel had referred us to the evidence of the Investigating Officer
(I.O.) finding place at page 230A of Volume IV. A reference to that statement
showed that the unloading charge came to Rs.18 per pole and the loading charge
to Rs.7.80. Thus the total came to about Rs.26 from stocking site to the truck.
The
learned counsel contended that this figure had to be doubled because the same
amount used to be incurred for bringing poles at the stocking site from the
forest. The I.O. had not said anything about this on his own, nor was he asked
any such question in cross-examination. However, to convince us that the figure
of Rs.26 is required to be doubled, in the written submissions filed on
21st/27th March, the learned counsel appearing for the appellants quoted the
following evidence of PW 24 Bassu:- "Expenses for loading and unloading as
well as the manual carriage from loading site and unloading site.
For
manual carriage of the poles we have to pay extra. By referring to the manual
charges I mean the lifting of poles by manual labourers from Depo site to the
truck and also their removal after unloading to the stock site.
Q/ When
you took these poles for installation from Choglamsar you again had to incur
expenses for manual carriage, loading and unloading of poles?
A/
Yes."
12-A.
From the above quoted evidence of PW 24, it is not known how much had been paid
during his incumbency as total loading and unloading charges. It is not known
which instances the I.O. had in mind when he had stated about loading and
unloading charges. It deserves to be pointed out that the poles which had been
carried in 1977 had basically been supplied by Mustaq & Company and it was
the obligation of this fir, as per Shri Handoo, to bring the poles from the
forest to the stocking/dumping site. What is more important is that the
decision which was taken in the joint meeting held on 11.5.77 was that the
poles would be carried from Kangan and Sonmarg vide page 22 of Vol.III. Mention
has been made about this in para 69 of the charge-sheet also, which is at pages
1-86 of Volume I. But for some inexplicable reason, the stocking/dumping site
was changed and poles were carried from Waltab which resulted in additional
burden on the State exchequer. Shri Handoo made a serious grievance about this
change of site.
13.
For the aforesaid reasons, we do not accept the contention of the appellants
that loading and unloading charges when poles were carried during the
incumbency of Shri Bassu came to Rs.52. Therefore, we would not agree that the
rate of carriage per pole in 1976 was Rs.30.49. So, we accept the prosecution
case that the rates agreed to in the present case were not reasonable. This is
almost writ large on the face as the carrying charge per pole came to Rs.
144.60.
This has come out clearly in the Office Note, which starts at page 12 of Volume
IX. (This figure has been mentioned at page 13). In this context, it would be
apposite to refer to what has been stated in the impugned judgment of the High
Court at page 158 of the volume containing this judgment. It has been mentioned
therein that the payment made to the contractors showed that the same per truck
worked out to Rs.10,561.66, whereas the rates of the RTC would have been
Rs.1993.57. The same would have been even less (Rs.1839.57) if trucks of
private carrier would have been engaged.
14.
Being satisfied that the rates agreed to with the contractors were not
reasonable, let it be seen whether the higher payment was motivated or was
agreed upon to take care of the exigency of the situation. Shri Thakur strenoully
urged that implementation of the rural electrification scheme within the time
spelt out by the Minister was the need of the hour, for which purpose a dashing
character like that of Salaria was brought to the scene. The concerned persons
were duty bound to do all that could reasonably be done to carry poles to Leh
before the onset of winter season which cuts off Ladakh from the Valley for a
long period. The fruit growing season being round the corner and the need for
storing food for the winter being the prime concern of the Government, the
concerned officers had to implement the scheme before the onset of winter and
had no alternative but to engage trucks made available by the contractors as
the RTC had expressed difficulty in making the trucks available.
To
satisfy us that there was no evil design in giving the contract of carriage to
non-transport firms, it was also urged that the rates had been fixed after
tenders had been invited and the lowest tender was accepted.
15. Shri
Handoo would not like us to accept the aforesaid statements because, according
to him, large number of Government trucks could be used for the purpose if
proper approach would have been made. In this connection, he referred us to the
communication from the office of the Transport Commissioner to the
Investigating Officer (I.O.) dated 24.5.78, which is at pages 269 to 270A of
Volume VII.
It has
been mentioned therein that the State had about 4,000 trucks operating on
J&K roads only and about 400 to 800 trucks used to lie idle everyday. This
letter further informed the I.O. that no officer of the Electric Department had
approached the officer of the Transport Commissioner for arranging trucks for
the carriage of poles. The further statement was that the Minister for Ladakh
had personally contacted the writer on 5th November, 1977 stating about the urgent need of
transporting four lac liters of High Speed Diesel to Leh and despite shortage
of time they were able to complete the massive operation within three weeks. We
have also been referred by Shri Handoo to the evidence of PW 29, Shri SD Shangllo,
Executive Engineer, Mechanical Division, Srinagar, which is at page 48-49 of Volume IV that their Department was having
39 trucks in its fleet and they had received no requisition from REC Leh for
carriage of poles.
16.
The aforesaid does show that no efforts had really been made by the concerned
officers to get the Government vehicles. Shri Thakur and Shri Jain, however,
urged that before floating of tender, RTC officials had been personally
contacted by Salaria and on being stated that trucks could not be made
available "at the present time", the exigency of situation left no
alternative but to invite tenders. This information to Salaria was in the
document which is at page 256 of Volume VII. The catch, however, is that when
the signatory of this letter, Sardar Jai Singh, appeared the witness box as PW2
he deposed that on his being approached by Salaria on 15th September, 1977 what
he had really told was that there was no objection to supply of trucks but due
to earlier commitments with other departments trucks could not be supplied for
"2 to 3 days". Salaria however did not come subsequently asking for
trucks and so no trucks got supplied by the RTC. Shri Thakur contended that
this gloss put by Jai Singh does not merit acceptance, as, if that was what was
really told to Salaria, the same should have found place in the aforesaid
communication. In this context we were taken through the various questions
which were asked to Jai Singh on this aspect and which find place from pages 50
to 55 of Volume III. If the evidence of Jai Singh alone would have been on
record, we could have perhaps agreed to what was submitted by the learned
counsel for the appellants in this regard; but having noted what had been
stated by the Transport Commissioner in the afore-noted letter and what had
been the evidence of the Executive Engineer, Mechanical Division, we are of the
view that Notice Inviting Tender (NIT) came to be issued as pre-arranged, to
which aspect of the matter we shall advert now.
Issuance
of NIT and subsequent happenings.
17.
Under normal circumstances, giving of contract, following issuance of tender
notice, to the lowest tenderer cannot be regarded as objectionable in any way.
In the case at hand, however, issuance of NIT was as per pre-arranged plan, as
already mentioned. We have said so because the same came to be issued, not in
the wake of denial, even if there was any, by the RTC official to make their
vehicles available. That tenders would be invited had been stated even by
8.9.77 by Much to appellants Hafeezullah and Qurashi. The letter of Much of 8th
September addressed to Salaria, which is at pages 50 and 51 of Volume X,
mentioned that the former had negotiated with M/s. Arfa Electrical Company
(which is the name of the concern of appellant Hafizullah) and M/s Farooq Ahmed
Qurashi and they had accepted to carry poles from Srinagar Valley to Kargil and
Leh on the condition that the rates of carriage charges could be those which
would be found lowest after floating tender. Much further stated in the letter
that the firms had been advised to start the carriage of poles: of course, the
charges to be paid would be known after receipt of tender to be floated in this
regard. There is thus nothing to doubt that a decision had been taken with the
consent of Salaria to float tenders even by 8th September. The contact with the
RTC official at Srinagar was on 15th and the obtaining of
the aforesaid letter from Jai Singh may, therefore, just be a ruse for issuance
of the NIT. What has made the matter worse for the appellants is that a copy of
NIT was sent even to M/s Khan Electric and General Stores, the firm of
appellants Abdul Rashid Khan and Peer Gulam Nabi, whose tender was ultimately
accepted, which, apparently was not a firm engaged in the business of
transport.
18. Shri
Handoo, therefore, rightly submitted that an understanding had been arrived at
between these firms/persons and the tender exercise was a camouflage. This
conclusion gets fortified when it is noted that though according to the
officials, tenders had been received from some transport carriers, to wit, Sopore
Transport Workers' Union, in fact it was not so. This has transpired from the
evidence of PWs 21 and 22, who were the Manager and President respectively of
the Sopore Transport Workers' Union. Both of
them stated that their Society had not submitted any tender and the one which
was said to have been filed in its name had really not emanated from their office.
Even
the seal put in the tender was not theirs and the tender had not been signed by
any authorised person. Shri Thakur urged that the tender might have been signed
by the Accountant, who was in employment at Srinagar Branch, as admitted by PW
22 had stated that the Accountant was not authorised to submit quotations. We
are inclined to think that similar must have been the position qua some other
transporters who had purportedly submitted tenders. Shri Handoo further
contended that the NIT had been issued to selected persons as would appear from
the evidence of PW 19 (at page 220 of Volume II) to the effect that his firm
had not received any tender notice. The firm of this witness, named Diamond
Motors, was a leading transporter of Srinagar as about 100 trucks were attached to his firm.
19. At
this stage we may indicate that the firms styled as Arfa Electrical Company and
Khan Electrical and General Stores are closely knit, as would appear from the
evidence of DW 1 Farooq Uddin, who stated about his being a partner in the firm
of Arfa Electrical Company, alongwith Hafeezullah. Though he stated in the
examination-in-chief that his firm had nothing to do with the firm of Khan
Electric and General Stores, from the statements made by him in
cross-examination it appeared that Arfa Electrical Company was not running a
shop and that firm had no headquarter. He further stated that Hafeezullah used
to run his father's shop named Khan Electric and General Stores and
correspondence for Arfa Electrical used to be from the shop of Khan Electric.
He further admitted that Afra Electrical had no registration with the Sales Tax
Department. Even the bill-head of Khan Electric and General Stores was used by Arfa
Electrical after erasing the name of the former and overwriting name of the
latter. These statements do show the inter relationship and closeness of Arfa
Electrical Company and Khan Electric and General Stores.
20 The
above is not all inasmuch as there is material on record to show that Qurashi
is related to Hafeezullah being a son of his father's brother-in-law. This
would definitely indicate that Qurashi too had acted in concert with Hafeezullah.
21.
The aforesaid facts leave no doubt in our mind that the exercise of issuing the
NIT and accepting the tender of Khan Electric and General Stores were parts of
pre-arranged plan.
We
have reasons to believe that the lowest amounts tendered were also those about
which there had been a meeting of mind between the tenderer and appellants Salaria
and Buch, if not others. We are inclined to think so because it is not
believable that without such an understanding, Arfa Electrical and the firm of Qurashi
would have undertaken the work of transport even before the NIT was issued.
They must have done so, on being told what the lowest rates would be, at least,
could be. There is much merit in the submission of Shri Handoo that the
non-transporters were brought in the picture even when firms of transporters
were known to exist and there was no dearth of trucks proved by the fact that
the three contractors could arrange 132 trucks within a short span of 8.9.77 to
7.11.77, only because of some prior understanding with them to share the extra
profits with the officials. And this extra profit was ensured by allowing
carriage per pole per k.m. basis, though the contractors themselves engaged
trucks on lumpsum basis. (This figure was given as Rs.8000/- by DW 1). So,
everything pieces well; all acted concertedly to allow wrongful gain to the
contractors on the understanding that the booty would be appropriately shared.
22.
Having come to the aforesaid conclusion which does make out a case of
conspiracy to cause wrongful loss to the State, let it be seen whether the
appellants herein were the conspirators; and, if so, whether the charges
against them have been brought home in accordance with law. We propose to
examine this qua each of the appellants separately. We would first take up the
case of the two persons, who had played the key role in the conspiracy
according to the prosecution.
They
are appellants N.A. Salaria, the then Executive Engineer; and G.D. Buch, the
then Assistant Engineer.
Appellants
N.A. Salaria and G.D.Buch (Criminal Appeal Nos.521 and 530/1981)
23.
There is no doubt, in view of what has been stated above, that they played key role
in giving of the contracts and formed the inner circle of the conspiracy. There
can also be no doubt in view of what has already been held that their actions
were actuated by ill motive, and the same was not inspired to get the poles at Leh
to see that the electrification scheme gets shape before winter sets in.
Apart
from what has already been mentioned about the tainted steps taken by them, Shri
Handoo has brought to our notice another facet of the case, which was to get
transported about 10,000 number of poles as against the need of about 4,700.
The NIT itself had specified this number as about 6,000.
24. Shri
Thakur, learned senior counsel who appeared for Buch, contended that the total
requirement for 1976-77 came to about 12,400; and as during Bassu's period only
about 2,000 poles could be carried, no motive could be ascribed if 10,000 poles
were transported during the period in question.
25. We
would have accepted the submission of Shri Thakur, but having found that the
rate at which the poles were agreed to be carried were unreasonable, we read
motive in allowing carriage of poles beyond what was strictly needed.
The
greater the number of poles carried, the higher would be amount which would
become payable to the contractors because of the rate being per pole; and the
high profit would benefit the appellants also.
26.
Nothing further remains to be said to come to the conclusion that these
appellants were rightly found quilty of the charges, which qua them were
commission of offences under section 5(2) of the Act and 120-B/ 109/116/119 Ranbir
Penal Code. At this stage we say something about the submission made by Shri Jethmalani,
who had appeared for two of the contractors namely Hafizullah and Farooq Ahmed Qurashi,
that the charge having only mentioned about section 5(2) was not quite explicit
inasmuch as it did not spell out which particular misconduct specified in
sub-section (1) of section 5 was being attributed. The learned counsel further
submitted that of all the four types of misconducts taken care of by
sub-section (1) in its four clauses, it is the one mentioned in clause (do
which could apply, which speaks of abuse of the position by a public servant by
"corrupt or illegal means". The contention as to this clause was that
no corrupt or illegal means had been adopted by the public servants because the
contract had been given following invitation to submit tenders which is a known
and legal mode of giving contracts; it was in also not a corrupt means.
There
is no force in this contention, as the undertaking given to the aforesaid two
contractors that they would be allowed to carry poles at the lowest tendered
rates followed by how the NIT was issued and what happened thereafter, there
can be no dispute that the public servants in question did abuse their
position. It so deserves to be noted that clause (d) does not speak only about
"corrupt or illegal means" but also takes within its fold obtaining
by public servant for himself or for any other person any pecuniary advantage
"otherwise" as well. We, therefore, do not find any infirmity in the
charges as framed.
27.
So, we uphold the conviction as awarded against these appellants. Coming to the
question of sentence, we have noted that section 5(2) of the Act has stated
that the punishment shall not be less than one vear's imprisonment but may
extend to seven years. The trial court, being satisfied about the need of
deterrent punishment had awarded imprisonment for four years and a fine of
Rs.25,000/-. The High Court has, however, reduced the sentence to two years and
fine too has been reduced to Rs.15,000/-, despite of having noted that evil of
corruption had of late assumed menacing proportion and was the deadliest enemy
of a free civilised society.
28.
According to us, it would be too harsh to award even the minimum punishment at
this length of time keeping in view the hardship already undergone and the
amount which the State had ultimately to lose because of the conspiracy - the
same being a sum of Rs.1,62,117.89. As about two decades have passed since the
commission of the offence and as during the interregnum the appellants had
undoubtedly suffered in body and mind, according to us, it is a fit case where
the proviso to sub-section (2) of section 5 of the Act should be invoked which
states that for special reasons recorded in writing, the court may refrain from
imposing a sentence of imprisonment or impose a sentence of imprisonment of
less than one year. Though the proviso permits not to impose a sentence of
imprisonment at all and confine the sentence to fine only, we do not think if
present is a case where the punishment to be awarded should be only fine, as
any softness in this regard could produce an undesirable result, namely,
encouragement to adoption of corruption means by public servants which has
indeed to be checked, and not allow to be encouraged. Keeping in view all the
attending circumstances, we are of the view that a sentence of RI for two
months would be adequate sentence, apart from the fine of Rs.15,000/-. On
failure to pay the fine, each of the appellants would suffer imprisonment for
two months.
29. Crl.
Appeal Nos. 521 and 530 of 1981 therefore, stand dismissed, subject to the
aforesaid modification in sentence.
Appellants
T.K. Kantroo and V.K. Razdan (Criminal Appeal Nos.523 and 526/1981)
30.
These appellants were working at the relevant time as Assistant Engineer and
Sectional Officer in the office of the Chief Engineer and, according to the
prosecution, they had affected cost analysis and had justified the proposal
which had been submitted by appellant Salaria to the Chief Engineer seeking his
approval to the rates tendered by khan Electric and General Stores.
31.
What had happened was that after the bills had been submitted by the
contractors for payment, an objection was raised by the Accountant relating to
non-approval of the contract by the Chief Engineer. This needed clearance of
the Chief Engineer for which purpose Salaria addressed a communication on
4.10.1977 to the Chief Engineer (a copy of which is at pp.10 and 11 of Volume
IX) seeking his approval to the tender rates in question. In the memo of the
aforesaid date, which was endorsed to the Chief Engineer Salaria had mentioned
in its margin (and this endorsement, according to Shri Handoo, is not to be
found in the original of the letter) stating, inter alia, that the tender rates
were as per the Superintending Engineer Memo dated 27.5.1975, a copy of which
was also enclosed. After receipt of this letter on 22nd October, the Chief
Engineer desired processing of the matter. The file was endorsed to Assistant
Engineer Kantroo by Technical PA to the Chief Engineer on 22nd itself; and Kantroo,
in turn endorsed the letter to Razdan on 24th.
32. An
office note running into 3 and 1/2 pages was prepared by Razdan on 25th which
came to be signed by Kantroo also on that date The Technical PA to the Chief
Engineer submitted the office note on the same date to the Chief Engineer. The
Chief Engineer, however, found that the standing procedure regulating
invitation of the tenders and processing the case thereafter had not ben
followed strictly due to extreme urgency involved as stated by the Executive
Engineer. The Chief Engineer in his note, asked the Superintending Engineer to
get the case processed at his level and to obtain the observation of FA
(Financial Adviser) and to get the agenda put up thereafter by the Executive
Engineer for discussing and deciding in a committee of the Superintending
Engineer, Executive Engineer, FA and CAO (or his representative) and himself
within a week.
33.
The aforesaid shows the extreme hurry in which the matter was dealt by the
appellants Kantroo and Razdan. A perusal of the office note, which is at pages
12 to 15 of volume IX, shows that they regarded the accepted tender rates as
justified solely because of the approval by the Superintending Engineer, REST
(Rural Electrification and Sub-Trans) Circle of the carriage rates in 5/75
ranging between 51 to 75 per km. per pole. (This document is at page 99 of
Volume VII).
34. Shri
Handoo contended that the complicity of these two appellants is apparent from
the fact that they had confined their attention only to the one time approval
given by the aforesaid Superintending Engineer without at all trying to know as
to under what circumstances the rates were approved and, what is more, without
trying to know what were the other accepted mode of carrying poles and what
were the rates thereof.
35. Shri
Sushil Kumar, learned senior counsel appearing for these appellants, submitted
that no other data or material was available in the office of the Chief
Engineer, and so, the appellants confined their attention to the rate about
which mention had been made in the communication of the Executive Engineer.
That no other material was available in the office of the Chief Engineer is the
evidence of PW.1 who was the Inquiry Officer. PW.26 who was the Technical PA to
the Chief Engineer and, last but not the least, the IO, PW.65, also deposed the
same.
36.
The further submission of Shri Sushil kumar was that if these appellants had
omitted to make any further inquiry, about which the observation of the trial
court was that they did not "conduct research", the same did not
really show any guilty mind, though that could be a case of negligence for
which departmental action may be merited but not a criminal prosecution. In
this connection our attention was invited to the recommendation of the Inquiry
Officer stating that these appellants have to "explain their negligence in
not traving to ascertain and apprise the Chief Engineer of the vital
information appertaining to the carriage rates at which poles had been carried
to Ladakh by .........."(Page 105 of Volume V).
37. To
support him on the legal submission, we have been referred to Abdulla Mohammed Pagarkar
vs. State(Union Territory of Goa, Daman & Diu), (1980) 3 SCC 110. That was
also a case where the appellants had been convicted, inter alia, under
Prevention of Corruption Act. While setting aside the conviction and ordering
for acquittal of the appellants, this Court observed in paragraph 24, to which
our attention is invited in particular, that if the appellants proceeded to
execute the work in flagrant disregard of the relevant rules of the General
Financial Rules and even of ordinary norms of procedural behaviour of
Government officials and contractors in the matter of execution of work
undertaken by the government such disregard had not been shown to amount to any
of the offences for which the appellants convicted. The submission, therefore,
was that we may not read ingredients of any of the offences for which the
appellants have been convicted merely because of their not having made some
enquiries and having acted against accepted norms.
38. We
have found it difficult to agree with Shri Sushil Kumar because a perusal of
the aforementioned office note clearly shows two things. First, the extreme
hurry in which the assigned work was completed, as the file came to Razdan on
24th October and was sent back on 25th, after the same had been examined, not
only by him, but Kantroo also. There was no occasion for hurry at that stage
inasmuch as transport of the bamboo poles had almost been completed and what
remained to be done was only the payment. Secondly, the note discloses the
these appellants knew that the cost of carriage per pole even as per the lowest
tenders would be Rs.144.60. This must have shocked their conscience and they
must have tried to know what could have been the cost of poles were carried,
not on the basis of per km. per pole, but as per truck loads. Sitting in the
office of the Chief Engineer it would not have been difficult for these
officers to find out the rate either of the RTC or private carriers.
The
omission to make these inquiries stares one at the face and so they were
rightly prosecuted the ultimately convicted, because of their apparent
complicity in recommending the acceptance of the rates, characterizing the same
as justified.
39. Shri
Sushil Kumar advanced yet another submission. He urged that the acquittal of
the Chief Engineer by the trial court and of the Superintending Engineer by the
High Court show that these courts had not read any criminal intent in the role
they had played in the matter; and the same view is merited qua the two
appellants. We do not propose to examine the justification or otherwise of the
acquittals, because of there being no appeal against acquittals before us. It
would be enough to point out that the Chief Engineer had been acquitted as the
trial court took the view that Salaria was interested in keeping the Chief
Engineer in dark about salient features of the contract, because of which it
was stated that the Chief Engineer could not be a conspirator.
As to
the acquittal of the Superintending Engineer what the High Court stated was
that he had neither been informed about the floating of tenders on 17.9.1977,
nor was taken into confidence when tenders were opened on 27.9.1977. Even a
copy of the NIT had not been sent to him. This apart, the High Court has
referred to a communication addressed by the Superintending Engineer to Salaria
in which the former asked the latter as to why poles were not carried by RTC
trucks and why the carriage contractors had been introduced. We do not propose
to dilate further.
40.
We, therefore, conclude by stating that the two appellants were rightly found guilty.
As to the substantive sentence awarded on them, we would reduce the same to RI
for one month, as we have sentenced the main culprits to imprisonment for two
months. The fine of Rs.3,000/- on each of the appellants is left unaltered. In
default of payment of fine, each of them would undergo imprisonment for one
month.
41.
Criminal Appeal Nos.523 and 526 of 1981 are, therefore, dismissed, subject to
the aforesaid modification in sentence.
Appellants
H.L.Dhar,F.A. Zadoo and Mohd.Siddiq (Criminal Appeal Nos. 522,528 and 529 of
1981)
42.
The alleged role of these appellants was that they had passed poles below
specification inasmuch as poles below the length of 20 feet were allowed to be
transported. There is no dispute that the contract was to transport poles whose
length was required to be between 20 feet to 30 feet. This has its importance
because poles of smaller size would not have the required girth which would
affect their strength and they would not be able to withstand the normal wear
and tear. Of the aforesaid appellants, Dhar was a Sectional Officer in the
Power Development Department, Zadoo a Store- keeper cum Clerk and Siddiq a
Junior Clerk engaged on work charged basis. Their defence was that as poles
below the length of 20 feet had been transported earlier, they had permitted
the same this time as well, not knowing that the contract was to carry poles of
20 feet and above. This defence has to be rejected for two reasons:
(1) It
cannot be believed that the Passing Officers would not know about the size of
poles to be transported; and
(2) it
is the case of appellant Buch that he had informed about the size of the poles
to be accepted.
43.
The High Court has strongly criticized the role of the Passing Officers by
stating that had they not been parties to the conspiracy, the entire conspiracy
would have flopped and the carriage contractors could not have carried such a
great number of poles in such short span of time and could not have earned so
much.
44. Shri
Agarwal, learned senior counsel appearing for these appellants, contended that
even if it were to be accepted that these officers were informed about the
contract being to carry poles of 20 feet and above, the poles below 20 feet
carried were small in number and the percentage of the pole so carried was in
the neighborhood of what has been done earlier. From Statement No.4 filed in
the case by Shri Thakur, it appears that even RTC trucks and private carriers,
who too were supposed to carry poles of the length of 20 feet and above, had
transported some poles below 20 feet, whose percentage came to 20.9, whereas
the percentage of such poles transported by the three carriers contractors was
21.3.
45. We
have also found from the judgment of the High Court that the contractors had
billed for those poles only which were of 20 feet and above. This is admitted
by Shri Handoo and is apparent from the bills submitted by the carriers which
are on record. To bring home this point, it would be enough to refer to the
bill of Arfa Electrical Company which is at page 286 of Volume XII. The total
number of poles for which bill was submitted comes to 822, of which 647 were
between 20 feet to 26 feet and the remaining 175 between 27 to 30. In all,
however, the contractor had carried 1125 poles, as mentioned at page 75 of the
High Court's judgment.
There
is no dispute that similar is the situation as regards the two other carriers.
46. It
thus appears that though these three appellants had sought to assist the
carriers to cause wrongful gain to them by allowing transportation of poles
below 20 feet, ultimately no financial loss on this court was caused to the
State because the carriers had not been paid for poles carried by them which
were below 20 feet. We are, therefore, of the view that these appellants also
deserve to be acquitted, as were some of the Field Officers, who had accepted
the under- sized pole at the receiving point had been acquitted by the High
Court. May it be mentioned that the High Court had acquitted the Field Officers
mainly because of acquittal of the supplier, namely, Mustaq & Company, by
the trial court against which no appeal had been filed. The High Court observed
that if no offence had been committed by the supplier on this score, the
persons who had received those poles cannot be faulted with. We would say the
same qua these three appellants.
47.
Criminal Appeal Nos.522,528 and 529 of 1981 are, therefore, allowed by setting
aside the conviction of the appellants and by ordering their acquittal.
Appellants
Hafeezullah and F.A. Qurashi (Criminal Appeal Nos. 524 and 525 of 1981)
48.
These are the contractors who had been approached by Buch and had started
transportation work from 18.9.77 - the date of the issuance of the NIT being
17.9.77. Appellant Qurashi had executed the work from 18th for 6 days and had
transported 1038 poles. Appellant Hafizullah started transportation work from
24th September and this continued till 29th, during which period 1125 poles
were carried.
49. Shri
Jethmalani, learned senior counsel appearing for these appellants, contended
that there were some legal infirmities in their conviction. He first stated in
this regard that the charges framed against them being one of conspiracy with
accused 5 and 6 (who are appellants Salaria and Buch) and through them with
accused 1 to 4 (who were the Power Development Commissioner, the Chief
Engineer, the Superintendent Engineer and Technical PA to the Power Development
Officer), and accused 1 to 4 having been acquitted, the charge of conspiracy
against these appellants has to fail on this count alone. Further leaf of this
argument was that there being no charge of conspiracy inter- se among the three
contract carriers, even if there was some conspiracy between accused Rashid
Khan and P. Gulam Nabi, who were the partners of the firm of Khan Electric and
General Stores, no illegal act at all was committed by these appellants, as
after all what hey had agreed to do was to transport poles at the rate to be
found lowest on tender being floated. It was also contended that there was
wrong use of section 10 of the Evidence Act because there is no evidence alliunde
about these appellants having "conspired together" with others in
which case alone section 10 becomes operative. Final flaw mentioned was that
the circumstances which had come on record against these appellants had not
been put to them in their examination under section 313 Cr.P.C., because of
which the circumstances have to be excluded from consideration, as held by this
Court in Sharad Birdhichand v. State of Maharashtra, 1984 (4) SCC 116.
50. It
is no doubt correct that accused 1 to 4 were acquitted but accused 5 and 6 were
not; and we too have upheld their conviction. Though the charge stated about
ultimate conspiracy with accused 1 to 4, the same was alleged through accused 5
and 6. We have already dealt as to what is the effect of acquittal of accused 1
to 4 on the charge of conspiracy, and it has been pointed out that the
acquittal did not affect the inner circle of the conspiracy which remained
intact inasmuch as appellants Salaria and Buch are comprehended in that circle.
51. As
to there having been no charge of conspiracy inter- se between the three
contractors, the same is not material because of our finding that there was
close inter- relationship between the three firms and all of them had acted in
concert. The submission about non-applicability of section 10 of the Evidence
Act, therefore, fails. So, it is not necessary to advert to what was held in
this regard in Natwarlal Sakarlal v. State of Bombay, 1963 Bombay Law Reporter
660 to which we were referred by Shri Jethmalani to support his submission
relating to section 10 of the Evidence Act.
52.
This leaves for consideration the submission that the circumstances coming on
record were not put to the appellants when they were examined under section 313
Cr.P.C. for which reason the circumstances have to be excluded from
consideration. In support of this submission Shri Jethmalani read out to us the
questions asked to Hafeezullah, which (alongwith his answers) are at page 283
of Volume II and read as below:- "Q. It has transpired in evidence that
without having anything to do with Arfa Electrical Co. Red-Cross- Srinagar you
have submitted a bill for Arfa Electrical Co., which was originally shown to be
a bill on behalf of khan Electrical and General Stores? A/ I am a partner of Arfa
with one Farooq Ahmed Zargar. The bill was given for typing and the typist
committed a mistake, which was corrected by hand. The bill was due because of
the arrangement made by me and my partner with ECD Leh on 8.9.77.
Q/
Further that Farooq Ahmed Qurashi S/O your Father's Brothter- in-Law had
submitted quotation in response to NIT issued by Xen. ECD Leh as proprietor of Arfa
Elec. Co. with which you had no connections? A/ That is not correct. The quotation
Ex PW3/10 which I have seen today was signed by my partner Farooq Ahmed Zargar
and bears the signature of said Farooq Ahmed Zarqar and not of Farooq Ahmed Qureshi.
Q/ Why
you are being prosecuted? A/ I do not know.
Q/ Why
the witness are deposing against you? A/ No witness has deposed anything
against me.
Q/ Would
you like to lead (sic, make) any other submission? A/ I am innocent.
Q/ Would
you like to lead any defence? A/ Yes."
53.
The aforesaid does show that Hafeezullah was not asked, in any form, about his
having entered into conspiracy with anybody. He was not even asked that the
rates at which poles were carried by him were unreasonable or high. As these
allegations/circumstances are the crux of the prosecution case insofar as he is
concerned, the non-providing of opportunity to him to explain the same has
rendered his conviction unsustainable. We, therefore, accept his appeal and
order for his acquittal.
54.
Insofar as appellant Qurashi is concerned, a perusal of his examination under
313 (at pages 280 to 282 of Vol.II), however, shows that the facts which
emerged against him were put to him to enable him to explain the same. The law,
therefore, would not require us to exclude the circumstances brought on record
against him. His conviction, therefore, has to be sustained as we are satisfied
about his complicity. But then, keeping in view the sentence which we have
awarded on the principal accused, namely, Salaria and Buch, we would reduce his
sentence to RI for one month. Fine of Rs.20,000/- as awarded by the High Court
is left unchanged. In default of payment of fine, the appellant would suffer
imprisonment for two months.
55.
Criminal Appeal No.524/81 is, therefore, allowed. But Criminal Appeal No.525/81
is dismissed, subject to the aforesaid modification in sentence.
Appellants
A.R. Khan and P. Gulam Nabi (Criminal Appeal No.527 of 1981)
56.
These appellants are the partners of Khan Electrical and General Stores. It is
this firm whose tender being the lowest was accepted on 27.9.1977 in the wake of
issuance of NIT on 17.9.1977.
57. In
view of all that has been stated above there is nothing to doubt about their
involvement in the matter. Shri Thakur, appearing for these appellants also,
made no independent submission relating to them. All that he had urged was to
bring out our notice the circumstances under which their firm was given the
contract and how the contract having been given at the lowest tendered rates
was not tainted. We have expressed our opinion on these submissions while
dealing with the case of Salaria and Buch. We may not repeat the same. We may
only point out that from what has been stated above we are satisfied that the
contract given to the firm of these appellants was as per pre-arranged plan and
the same was given to them to enable them to earn extra profit for appropriate
sharing afterwards.
58. We
are, therefore, satisfied that they were rightly found guilty both by the trial
court and the High Court. As to their substantive sentence, we would reduce the
same to RI for one month keeping in view the sentence we have awarded on
appellants Salaria and Buch, and what we have done regarding the sentence of
appellants Kantroo and Razdan. We would, however, leave the sentence of fine as
awarded which is a sum of Rs.22,000/- on each unaltered. In default of payment
of fine, each of them would suffer imprisonment for two months.
59.
Criminal Appeal No.527/81 is, therefore, dismissed, subject to the aforesaid
modification in sentence.
Conclusions
60. We
may sum up our conclusions. These are:
(1)
Conviction of appellants N.A. Salaria and G.D. Buch is upheld. Their
substantive sentence is, however, reduced to RI for two months. Fine of Rs.15,000/-
as awarded by the High Court, is left unaltered. In default of payment of fine,
each of these appellants would undergo imprisonment for two months.
(2)
Conviction of appellants T.K. Kantroo and V.K. Rajdan has been confirmed. Their
substantive sentence has, however, been reduced to RI for one month. Fine of
Rs.3,000/- as awarded by the High Court is left unaltered. In default of
payment of fine, each of the appellants would undergo imprisonment for one
month.
(3)
Conviction of appellants H.L. Dhar, F.A. Zadoo and Mohd. Siddiq has been set
aside and they have been acquitted.
(4)
Conviction of appellant Hafeezullah has been set aside and he too stands
acquitted.
(5)
Conviction of appellant FA Qurashi is confirmed. His substantive sentence has,
however, been reduced to RI for one month. Fine of Rs.20,000/- as awarded by
the High Court is left unaltered. In default of payment of fine, this appellant
would suffer imprisonment for two months.
(6)
Conviction of appellants A.R. Khan and P. Gulam Nabi has been confirmed. Their
substantive sentence has, however, been reduced to RI for one month. Fine of
Rs.20,000/- as awarded by the High Court is left unaltered. In default of
payment of fine, each of the appellants would suffer imprisonment for two
months.
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