Delhi District Court
Cbi vs . 1 Ashok Pal Panwar, (A-1) on 22 February, 2014
IN THE COURT OF MANOJ JAIN: SPECIAL JUDGE (PC ACT) (CBI)
SOUTH DISTRICT: SAKET DISTRICT COURTS
NEW DELHI
CC No. 02/2013
RC DAI-2011-A-0017
U/s 120B r/w 420/468/471/477A IPC
& 13 (2) r/w 13 (1) (d) PC Act
Unique ID No.02406R01100892013.
CBI Vs. 1 Ashok Pal Panwar, (A-1)
Son of Sh. Mangat Singh,
Resident of SF-1, Shri Krishna Apartment,
Plot No. 895/8, Near Old BDO office,
Mehrauli, New Delhi-30
2 Vinod Gupta, (A-2)
Son of Sh. L.R. Singhal,
Resident of C2/259, Janak Puri,
New Delhi-58
3 Vinod Kumar Verma @ V.K. Verma, (A-3)
Son of Late Sh. Puran Chand Verma,
Resident of A-1/23, Vijay Enclave,
Palam Dabri Road,
New Delhi-45
4 M/s Water Well drillers, (A-4)
C2/259, Janak Puri,
New Delhi-58
Date of Institution : 30.04.2013
Date of framing of charge : 22.08.2013
Date of conclusion of arguments : 11.02.2014
Date of Judgment : 22.02.2014
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Memo of Appearance
Ms. Jyotsna Sharma, Learned PP for CBI.
Sh. Sudeep Sharma, Learned Counsel for accused Ashok Pal Panwar.
Sh. R.C. Tiwari, Learned Counsel for remaining accused
JUDGMENT
VERSION OF PROSECUTION 1.0 Delhi Jal Board (DJB) came into existence in 1998. It was shouldered with the responsibility for supply of potable water and safe disposal of sewage in National Capital Territory of Delhi (NCT of Delhi). Due to growing population of Delhi, demand of water had been rising alarmingly and to bridge the gap between demand and supply, DJB was simultaneously involved in installation of tube wells to extract ground water.
1.1 For boring of fresh tube wells, permission is obtained from District Advisory Committee. However, re-boring, in place of old or defunct bore-well could be done after taking consent of Chief Engineer concerned.
1.2 Present case pertains to re-boring of one tube well situated at F- Block, near Rewari Line, Maya Puri Industrial Area, Phase-II, New Delhi. Such bore well fell within the area of South West-III. The tube-well, which was to be re-bored, was 100 metres deep and was in alluvial soil. After completing procedural formalities, the bill of quantity was ascertained and tender was floated. Bill of quantity, inter alia, also reflected requirement of providing Johnson screens.
CC No. 02/2013 CBI Vs Ashok Pal Panwar etc 2 of 36 1.3 Tender was accordingly floated and such work was eventually
awarded to accused M/s Water Well Drillers. It was a partnership firm and accused Vinod Gupta and Pramod Gupta were found to be its partners.
1.4 It is also curious to mention that previous tube-well was not touched or re-bored. Rather fresh boring was done adjacent to the old site. M/s Water Well Drillers carried out the job as per the tender and raised bill. It also claimed to have supplied and installed Johnson screen (48 metres Johnson screen having 200 mm diametre and 12 metre Johnson screen having 300 diametre). As per the strata chart, the boring was up to 102 metres and the total length of the pipe (including Johnson screen) was also 102 metres and the bail-plug was installed at the bottom of 102 metres. Payment of Rs.3,41,121/0 was accordingly released to the contractor i.e. M/s Water Well Drillers and such amount was credited in its account electronically on 01.09.2006.
1.5 After six years of such re-boring job, when admittedly such tube- well was still functioning to the optimum, a source information was received by CBI from some unknown quarters that officials of South West Division-III of Delhi Jal Board had entered into a criminal conspiracy with private contractor(s) with the object of causing undue pecuniary advantage to such contractor(s) and installation was not as per the terms of the tender and rather false and forged purchase bills were submitted by the contractor(s) and thus wrongful loss was caused to DJB.
1.6 It will be pertinent to mention here that on the basis of such FIR, various bore-wells came under scrutiny but the present case is confined to the aforesaid re-boring of tube well situated in Maya Puri Industrial Area, Phase-II.
CC No. 02/2013 CBI Vs Ashok Pal Panwar etc 3 of 36 1.7 In order to find out whether the contractor had in fact used
Johnson screen or not, services of National Geophysical Research Institute (NGRI) Hyderabad were availed. Dr. D.V. Reddy Sr. Principal Scientist from NGRI evaluated such bore-well with the help of a bore-hole camera and reported that the depth of the tube-well was 76.5 metres only and that the pipe was only till 57.5 metres which included 10 metres of MS slotted pipe. Investigation revealed that Ashok Pal Panwar, Junior Engineer of Delhi Jal Board, South West-III Division, who was site in-charge of the aforesaid Maya Puri tube-well, entered into criminal conspiracy with accused Vinod Gupta (partner of M/s Water Well Drillers) and accused Vinod Verma (employee of M/s Water Well Drillers who prepared a forged bill showing purchase of Johnson screen from one non existing company i.e. M/s Marine Time Water Supply Services). Accused Ashok Pal Panwar wrongly certified that the Johnson screen had been installed.
1.8 It will also be important to mention here that three other persons, namely, Sh. Pramod Kumar Jain, (Executive Engineer), Sh. B.D. Arya (Assistant Engineer), Sh. Hari Singh (Junior Engineer) were not sent up to face trial and their names were mentioned in column No. 12 of charge sheet. Surprisingly, not a word about them has been mentioned in the charge sheet. Their names are simply found mentioned in column No. 12.
COGNIZANCE AND CHARGES 2.0 Charge sheet was filed in the court on 30.04.2013. Taking stock of various documents and statements of witnesses, the court took cognizance against all said four accused persons i.e. Ashok Pal Panwar, Vinod Gupta, Vinod Kumar Verma and M/s Water Well Drillers and summoned them vide order dated 01.06.2013.
CC No. 02/2013 CBI Vs Ashok Pal Panwar etc 4 of 36 2.1 Arguments on charge were heard and vide order dated 22.08.2013, charges were ordered to be framed. All the four accused
persons were ordered to be charged u/s 120 B, 420, 468, 471, 477 A IPC and 13 (2) r/w 13 (1) (d) PC Act r/w 120 B IPC. Accused Ashok Pal Panwar was also substantively charged for offences u/s 477 A IPC and 13 (2) r/w 13 (1) (d) PC Act. A2 and accused firm A4 were also separately charged u/s 420 and 471 IPC. A3 V.K. Verma was also separately charged u/s 468 IPC.
2.2 All the accused pleaded not guilty and claimed trial.
2.3 The court also took recourse to section 294 Cr. PC and fortunately accused persons admitted huge chunk of documents filed by the prosecution. These were accordingly exhibited.
WITNESSES FOR CBI 3.0 Prosecution was directed to adduce evidence and examined 24 witnesses.
3.1 Witnesses can be classified as under:-
OFFICIALS FROM DELHI JAL BOARD PW5 Sh. Manjeet Singh Sudan, Assistant Account Officer, Delhi Jal Board PW6 Sh. Mahavir Prasad, Draftsman Grade-1, Delhi Jal Board PW9 Sh. Ashwani Kumar, Head Clerk, office of Assistant Commissioner (Water) DJB PW10 Sh. Shiv Kumar Bhardwaj, Superintending Engineer (South), Delhi Jal Board PW14 Sh. S. Naiyer Ali Najmi, Member Administration, Delhi Jal Board (sanctioning authority) PW16 Sh. Brijesh Kumar Gaur, Junior Engineer (E&M), Delhi Jal Board PW17 Sh. Ravi Kant Sharma, Senior Accounts Officer, Delhi Jal Board CC No. 02/2013 CBI Vs Ashok Pal Panwar etc 5 of 36 PW23 Sh. Vikas Rathi, Junior Engineer (Civil), Vigilance Department, DJB OTHER PRIVATE WITNESSES TO SHOW ELEMENT OF FORGERY PW2 Sh. Jawahar Lal Kathuria, Zonal Inspector, Property Tax Department PW3 Sh. Narender Kumar Vedi, representative of owner of D-98, Panchsheel Enclave. PW4 Sh. R.B. Singh, Retired Commercial Officer, Nehru Place Exchange, MTNL PW7 Sh. Durga Prasad, Manager, Bank of India.
PW8 Sh. Ashwani Goyal, acquaintance of accused Vinod Gupta. PW12 Sh. Puran Chand Joshi, UDC, DDA, CB Horticulture, official in whose presence specimen handwriting/signatures of accused Vinod Kumar Verma were taken. PW13 Sh. Prem Pal Singh, UDC, DDA, Personnel Branch-IV, Vikas Sadan, New Delhi, official in whose presence specimen handwriting/signatures of accused Vinod Kumar Verma were taken.
PW15 Sh. Altap, employee of M/s Water Well Drillers. PW18 Sh. Ravinder Kumar Sangwan, Building material & water supplier PW19 Sh. Alok Kumar Shukla, Accountant of M/s Water Well Drillers.
OTHER OFFICIALS PW20 Sh. Anoop Nagar, Regional Director, CGWB PW21 Sh. A.D. Rao, Regional Director, CGWB PW22 Sh. Sandeep Mittal, UDC, Employee State Insurance Corporation EXPERTS AND INVESTIGATING OFFICER PW1 Dr. D.V. Reddy, Senior Principal Scientist, NGRI PW11 Sh. T. Joshi, Assistant Government Examiner of Questioned Documents PW24 Sh. Jagrup Singh, I.O./Inspector, CBI CC No. 02/2013 CBI Vs Ashok Pal Panwar etc 6 of 36 STANCE OF ACCUSED
4.0 Statements of accused (s) were recorded u/s 313 Cr. PC. All the accused pleaded innocence. According to accused Ashok Pal Panwar, it was the Executive Engineer who was responsible for the entire work and as Junior Engineer, he had merely filled up the Measurement Book and all the hidden work related to steel material including pipes had been actually seen by the other two engineers i.e. Assistant Engineer and Executive Engineer above him who have neither been made accused nor cited as witnesses. It has also been claimed by him that the fact that the bore-well of Maya Puri was working even in 2012 was itself indicative of the fact that Johnson screen had been used as else the bore-well would have collapsed. Accused Ashok Pal did not choose to lead any evidence in defence.
4.1 Accused Vinod Gupta claimed that re-boring job had been done properly and the pipes were installed as per the strata chart and Johnson screen was also used. A serious doubt was raised with respect to the video footage contained in (CD Ex. P1) and it was asserted that such CD did not at all belong to Maya Puri bore-well and Dr. Reddy, who had no expertise in the field in question, had even otherwise given a wrong report.
4.2 Accused Vinod Kumar Verma also pleaded innocence and claimed that he had been falsely implicated in the matter and his signatures had been obtained forcibly during the investigation.
4.3 Accused Vinod Gupta & Vinod Verma examined three witnesses in their support i.e. DW1 Sh. V.K. Malik, DW2 Sh. Ashwani Singh and DW3 Sh. N.B. Joshi. DW1 Sh. Malik has been examined in order show that any bore-well situated in alluvial soil would not work without screen pipe and the CC No. 02/2013 CBI Vs Ashok Pal Panwar etc 7 of 36 other two defence witnesses are from Income Tax Department and they have been examined in order to demonstrate that M/s Marine Time Water Supply Services was very much in existence and thereby to drive home the point that the bill was not a forged one.
RIVAL CONTENTIONS 5.0 Ms. Sharma, Ld. Prosecutor has argued that prosecution has been able to prove its case to the hilt. She has contended that all the accused were hand in glove and caused wrongful loss to the Delhi Jal Board. According to her, terms of the contract were very clear and unambiguous and the contractor was under obligation to install Johnson screen. When the bore-well was examined by the expert from NGRI, it came to fore that Johnson screen had not, at all, been installed. She has asserted that contractor played fraud and installed pipes upto 57.5 metres only and charged for much more. She has also contended that it really did not matter much whether the bore-well was working efficiently and defence cannot be permitted to draw any advantage out of such insignificant fact. She has asserted that scientific evidence is so strong and forceful that it nails down all the accused pin-pointedly. According to her, a bogus bill was prepared by the contractor with the help of co-accused Vinod Kumar Verma and it was attempted to portray that the Johnson screen had been installed. Thus, according to her, CBI has been able to establish factum of forgery as well.
5.1 Sh. Sudeep Sharma, Ld. defence counsel for accused Ashok Pal Panwar has asserted that the bore-well in question was in alluvial soil and the fact that bore-well was found running efficiently even after more than six years of its installation is pointer to the fact that the Johnson screen had been installed. According to Mr. Sharma, if all the pipes including the Johnson CC No. 02/2013 CBI Vs Ashok Pal Panwar etc 8 of 36 screen had not been installed in such type of strata, the bore would have rather collapsed. He has also expressed his astonishment as to why the actual site engineer i.e. Executive Engineer has not been made to stand in the dock. It has been argued that being the junior most officer, Ashok Pal Panwar has been made a scapegoat. It has also been argued that the scientific evidence is liable to be discarded as the mandatory norms and procedure related to handling and preservation of electronic evidence have not been complied with and moreover the video footage does not pertain to the bore-well in question. Written arguments have also been submitted by Sh. Sudeep Sharma.
5.2 Sh. Tiwari, Ld. defence counsel for other accused persons, while also adopting the aforesaid contentions, has supplemented that there was no forgery of any nature whatsoever. According to him, M/s Marine Time Water Supply Services was a firm very much in existence and the bill in question was a genuine bill.
5.3 Both the sides have placed reliance on various authorities which I would advert to at appropriate places.
EVALUATION OF EVIDENCE 6.0 I have given my thoughtful consideration to the rival contentions and carefully scrutinized the entire material available on record. I have also seen the video footage of Maya Puri bore-well contained in CD (Ex. P1). The testimony led by the prosecution as well as by the defence needs to be evaluated under the following heads:-
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a) Execution of work by M/s Water Well Drillers
b) Issue of forgery
c) Responsibility and accountability on the part of DJB officials
d) Nature of strata related to Maya Puri bore-well
e) Scientific evidence-value and impact
f) Conclusion EXECUTION OF WORK BY M/S WATER WELL DRILLERS 7.0 Success of any tube-well depends upon the proper survey done at the pre-installation stage, design concepts backed up by good construction. The idea is to draw water in the most efficient and economic manner. Keeping in mind the geo-hydrology or the strata of that particular location, the assembly has to be planned properly. Such assembly may consist of blank pipes and slotted pipes. Screen can also be installed to draw clear water from the aquifer. Pea-gravels are also packed to ensure proper filtration. Screen is normally installed only at the place where there is aquifer.
7.1 As already noticed above, it was a case of re-boring. I have seen file D-3. This complete file has been exhibited as Ex. A-3. After the charges were framed, accused were called upon to admit or deny the documents filed by the prosecution and as far as this file D-3 (Ex. A-3) is concerned, none of the accused had any inhibition in admitting the correctness of the documents contained in such file. Such file indicates that there was earlier a tube-well having depth of 100 metres. at F-Block, Rewari Line, Maya Puri Industrial Area, Phase-II. It was in alluvial soil and its discharge had reduced considerably and since there was acute problem of water in that area, it was decided to have another boring close to the original site. This file also contains a plan which depicts the location of existing boring CC No. 02/2013 CBI Vs Ashok Pal Panwar etc 10 of 36 and also of the proposed boring.
7.2 Tender was floated and it is not in dispute that eventually, such work was awarded to accused M/s Water Well Drillers.
7.3 It is also not in dispute that work was executed by M/s Water Well Drillers.
7.4 Measurement Book, again, is an admitted document. It has been exhibited as Ex. A-5 (D-5). The relevant pages are from Page No. 73 to Page No. 78. As per said Measurement Book, the contractor had used 48 metres of Johnson make pipe of 200 mm diametre and 12 metres pipe of 300 mm diametre. As per the contractor M/s Water Well Drillers, pipe length was 102 metres in all i.e. 36.5 metres (housing pipe) + 6.07 metres (blind pipe) + 48 metres (Johnson pipe) + 12 metres (Johnson pipe). In this regard various documents contained in D-7 may be referred to. There is no dispute that after the job was completed, as per the documents submitted by the contractor and as per the entries maintained in Measurement Book, bill was raised and the payment was released.
7.5 M/s Water Well Drillers was a partnership concern and as per partnership deed dated 07.04.1992, accused Vinod Gupta and his brother Sh. Pramod Gupta were its partners. Accused Vinod Gupta is found to be the lawful attorney and the active partner who signed the contract on behalf of the firm. He is the one who signed on various relevant documents. As far as his brother/partner Sh. Pramod Gupta is concerned, it becomes apparent that he was never in picture and he did not sign anywhere at all. It seems me that precisely for said reason, accused Pramod Gupta was not prosecuted in the present matter. Naturally, no one can be prosecuted merely on the basis of CC No. 02/2013 CBI Vs Ashok Pal Panwar etc 11 of 36 holding such status alone. It is also to be simultaneously shown that such person was responsible for the day-to-day affairs and the business of the firm or that each and every act was carried out with his knowledge or consent. In the present case, though Pramod Gupta happens to be the partner of M/s Water Well Drillers, there was no real requirement of his also being sent up to face trial for want of any specific overt act or attribution of any knowledge on his part.
ISSUE OF FORGERY 8.0 According to CBI, M/s Water Well Drillers had not installed John- son pipe at all and in order to stake its claim regarding installation of Johnson screen, it fabricated and forged one bill. Such bill i.e. Bill No. M-225 dated 15.06.2006 is Ex. PW3/C (part of D7). It has been issued by M/s Marine Time Water Supply Services, Tube-wells Engineers and Consultants, D98, Panchsheel Enclave, New Delhi-110017.
8.1 According to prosecution, such forged bill had been prepared by accused Vinod Verma.
8.2 It will be important to mention that when statement of accused Vinod Gupta was recorded u/s 313 Cr. PC, he claimed that M/s Marine Time Water Supply Services was a partnership firm since 1986 and was in existence up to 2004 at B98, Panchsheel Enclave, New Delhi and thereafter such firm shifted to Jaina Tower-II, District Centre, Janak Puri. It was also claimed that such firm used to file ITRs on regular basis and it had four partners namely Sh. L.R. Singhal, Ms. Vidhya Devi, Ms. Renu Gupta and Sh. Deep Gupta. He also claimed that such bill was genuine bill.
CC No. 02/2013 CBI Vs Ashok Pal Panwar etc 12 of 36 8.3 It is also important to mention that Sh. L.R. Singhal happens to be the father of accused Vinod Gupta. 8.4 Interestingly, during investigation, CBI had taken specimen
handwriting of accused Vinod Kumar Verma. These are contained in S1 to S67 (D19) and all such sheets have been collectively exhibited as Ex. A12. Accused Vinod Verma did not dispute that his specimen handwriting had been taken, albeit, according to him, it was under compulsion. When these specimen handwritings were sent to CFSL for comparison with the writings appearing on said alleged forged bill Ex. PW3/C, Sh. T. Joshi opined that the writing and signatures appearing in Q35 (writing appearing in said forged bill) matched with the writing of author of S1 to S67. Thus as per Sh. T. Joshi, Scientist, CFSL, the aforesaid bill was in the handwriting of Sh. Vinod Kumar Verma. Accused Vinod Kumar Verma has baldly denied the correctness of such report.
8.5 Sh. R.C. Tiwari has, at the very outset, contended that such report is beyond the scope of consideration as the investigating agency did not approach the court for seeking formal permission for taking such specimen handwriting. In this regard, reliance has been placed upon one judgment of our own High Court cited as SAPAN HALDAR VS. STATE (2012) 191 DLT 225.
8.6 Ms. Sharma has relied upon RABINDRA KUMAR PAL @ DARA SINGH VS REPUBLIC OF INDIA (2011) 2 SCC 490 and has contended that giving of specimen handwriting by itself cannot mean to indicate that any such person was furnishing any evidence against himself and, therefore, such act cannot be equated with the terms "to be a witness". There cannot be any doubt with respect to the aforesaid proposition.
CC No. 02/2013 CBI Vs Ashok Pal Panwar etc 13 of 36 8.7 After introduction of section 311 A in Cr. PC, the Magisterial Courts have been empowered to make an order to such effect. Such
amendment came into effect from 23.06.2006 and the specimen handwriting in the present case had been taken on 21.08.2012 but without taking any permission from court.
8.8 Investigating agency should have respected the legislative intent and should have obtained formal order from the court in terms of section 311- A Cr.P.C.
8.9 Let me, however, find out as to on what premises, the investigating agency has concluded that such bill had been issued by a non- existent company. It tried to contact the occupants of D98, Panchsheel Enclave, New Delhi and also gathered information from MTNL as one land line No. i.e. telephone No. 6436438 was found mentioned on the bill and merely on the basis of the responses received from there, it concluded that the firm was non-existent.
8.10 I have seen the testimony of PW2 Jawahar Lal Kathuria and PW3 Narender Kumar Vedi. As per PW3 Sh. Vedi, no such firm had ever done business from said property after it was purchased by Mr. Sardana in 2004. Surprisingly, he does not know as to who was in occupation of said property prior to 2004.
8.11 Defence has examined two witnesses from Income Tax Department i.e. DW2 Ashwani Singh and DW3 N.B. Joshi and their testimony and the documents proved through them clearly indicate that M/s Marine Time Water Supply Services had been filing income tax. DW2 has deposed that as per ITR Ex. PW24/DA, the address of M/s Marine Time Water Supply CC No. 02/2013 CBI Vs Ashok Pal Panwar etc 14 of 36 Services was D-98, Panchsheel Enclave for assessment year 1999-2000, 2002-2003 and 2003-2004 and for the subsequent period the address of the assessee was of Jaina Tower-II, District Centre, Janak Puri.
8.12 During the course of the arguments, Sh. Tiwari enlightened the Court that prior to 2004, M/s Water Well Drillers was running its business from D-98, Panchsheel Enclave, New Delhi only. It was owned by father of accused Vinod Gupta. After D-98, Panchsheel Enclave was sold, M/s Water Well Drillers shifted its base to Janak Puri and some unutilized stationery having print of old address, was used even in 2006 whereas in 2006, M/s Marine Time Water Supply Services was not running business from Panchsheel Enclave and CBI without proper investigation jumped to the conclusion that the bill was forged. I also do feel that it was not the right approach. The record from Income Tax Department of previous period cannot be impeached or doubted at all.
8.13 PW4 Sh. R.B. Singh has deposed that requisite information related to said telephone was sent to CBI. As per such information Ex. PW4/A (D17), the customer application form pertaining to said telephone was not available but the name of the customer was Dr. Yashpal Gupta and such telephone was lying closed since 27.10.2004. Again, this particular document also helps the stand of defence. The previous owner Sh. Yashpal Gupta did not use the aforesaid telephone No. after the property was transferred by him. Photocopy of sale deed is also found to be contained in D13 wherein the name of the seller has been shown as Yashpal Gupta. Prosecution did not think it appropriate to examine such Sh. Yashpal Gupta. He was the best man who could have commented whether any such firm had been running its business from D-98, Panchsheel Enclave or not. CBI should not have jumped to any conclusion merely on the basis of version given by buyer. It CC No. 02/2013 CBI Vs Ashok Pal Panwar etc 15 of 36 should have contacted Income Tax Department. It should have also recorded statement of accused Vinod Gupta. It is normally seen that CBI never records statement of accused or if such statement is recorded, the same is not made part of the challan. If at all, Vinod Gupta had been questioned about such bill, he would have certainly disclosed then & there that such firm was very much in existence. Fact, however, remains that his statement is not to be seen anywhere.
8.14 Be that as it may, fact remains that it cannot be held that the bill had been issued by any non-existent company. Accused Vinod Verma was employee of accused Vinod Gupta and in that capacity even if he had filled up the bill issued by M/s Marine Time Water Supply Services which firm belonged to Sh. L.R. Singhal (father of accused Vinod Gupta), it cannot be construed that he had committed any sort of forgery while preparing the bill in his own hand. Undoubtedly, it would have been better if Vinod Gupta had examined his father or any other partner of said firm but still the record proved by Income Tax official has created a doubt and it cannot be conclusively said that such firm was non-existent one. Its though another question whether the Johnson pipes had been used or not.
RESPONSIBILITY AND ACCOUNTABILITY ON THE PART OF DJB OFFICIALS 9.0 CBI has charge sheeted Ashok Kumar Panwar of Delhi Jal Board. He is the smallest fry. He is Junior Engineer. There were two more officers above him i.e. Assistant Engineer (also known as Zonal Engineer) and Executive Engineer. Sh. B.D. Arya was posted as Assistant Engineer and Sh. Pramod Kumar Jain was posted as Executive Engineer at the CC No. 02/2013 CBI Vs Ashok Pal Panwar etc 16 of 36 relevant time and they both were also allegedly associated with the re-boring of said Maya Puri tube-well. It has not been made clear in the charge sheet as to why these two officials were spared. Though ,on the basis of the various statements recorded u/s 161 Cr. PC, it seems to me that CBI concluded that Junior Engineer was supposed to conduct 100% test check and was responsible for the entries made in Measurement Book and any Assistant Engineer was only required to conduct 50% test check and Executive Engineer was responsible for 10% test check of the total work and, therefore, being 100% responsible, only Junior Engineer has been charge sheeted.
9.1 It will be also interesting to mention here that as per case diary, it is Mr. O.P. Gaur, Executive Engineer, who was senior most engineer having supervision of Maya Puri bore-well. It is not very clear as to why his name was omitted altogether in the charge-sheet.
9.2 PW5 Sh. Manjeet Singh Sudan, Assistant Account Officer of DJB has deposed that measurement book is required to be certified 100 per cent by Junior Engineer and then Zonal Engineer records his satisfaction about the work whose checking is considered as 50 per cent of the entire work. He also claimed that it was due to the fact that being Zonal Engineer, his area of supervision was bigger than Junior Engineer because he was required to supervise more than one site at one point of time. Similarly, XEN also certifies only 10 per cent checking of the work. However, in his cross- examination, he claimed that he was not aware whether copy of work-contract also used to be given to Junior Engineer or not. He also deposed that Junior Engineer was not required to personally verify the correctness/genuineness of any bill submitted by the contractor. It is also important to mention here that when the justification for re-boring was prepared, accused Ashok Pal Panwar CC No. 02/2013 CBI Vs Ashok Pal Panwar etc 17 of 36 was not in picture at all. Rather Mr. Hari Singh (whose name has been put in column no. 12) was Junior Engineer at the time of allocation of tender.
9.3 PW10 Shiv Kumar Bhardwaj was posted as Superintending Engineer in the Delhi Jal Board and he has also deposed about the aforesaid percentage-wise supervision of Junior Engineer, Zonal Engineer and Executive Engineer. When asked whether it was not the responsibility of all three of them to check all the documents, he ducked the answer but supplemented that responsibility was there.
9.4 Interestingly, as per the Measurement Book, the most two important entries regarding installation of Johnson pipes had been signed by none other than Sh. Arya at point B. It clearly means that even Sh. B.D. Arya had confirmed that the Johnson pipes had been actually installed and if CBI was of the view that Johnson pipes had not been installed, it should have, before anyone else, sent him to face trial. Moreover, as per the work order dated 02.06.2006 as contained in D3, the work was to be done under the supervision of Zonal Engineer.
9.5 This system of percentage wise responsibility is completely ridiculous, meaningless and absurd. Senior officers are meant for supervision. They draw bigger purse but when it comes to owning up of any responsibility, they are seen passing buck to their subordinates. Moreover, with respect to such hidden and important items like pipes etc, the job of checking and cross checking is required to be done by all the three engineers. All three of them should have been treated equally by CBI.
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NATURE OF STRATA RELATED TO MAYA PURI BORE-WELL
10.0 Broadly speaking, the strata can be of two types i.e. Soft or
loose which is commonly known as alluvial and second is hard known as rocky strata. For the purpose of installing any tube-well, boring is required to be done. Naturally, the type of boring is as per the nature of strata. A bore- well machine, which may be good enough for carrying out the boring job in any alluvial soil, may not do even a bit in rocky strata.
10.1 The underground water is available at varied depths in Delhi. If the terrain is rocky, the water may be found at a deeper place but in alluvial soil, one may strike water early. Whenever, any boring is done in alluvial soil, casing is sine qua non. Without casing, any such tube-well or bore-well will not survive. It would rather collapse. It is because the alluvial soil is loose in nature and it would, if there is no casing, fill up the boring. However, in rocky strata, there is insignificant chance of any such collapse of bore-well even if there is no casing.
10.2 In any bore-well, pipes/casing are installed as per the local requirements. Since the water is available at some distance from the surface, normally, blank casing is used from surface till the point the water is available. Thereafter, slotted pipes or screen pipes are used. Water percolate inside the casing through these filtration points and various types of particles remain blocked outside.
10.3 Here I would also like to mention that entrance of water from aquifer to inside of boring is possible in both type of screens i.e. Johnson screen and MS slotted screen. Only difference is that Johnson screen has fine filtration process and it does not even let the sand come inside the casing CC No. 02/2013 CBI Vs Ashok Pal Panwar etc 19 of 36 whereas in MS slotted pipes, holes being bigger, some particles can also percolate in.
10.4 In the present case, as per the terms of contract, contractor was required to install 52 metres of Johnson screen. 40 metres of such Johnson screen was to be of 200 mm diametre and 12 metres such screen was to be of 300 mm diametre.
10.5 The task of re-boring was in alluvial soil even as per the tender documents. It would be also appropriate to have a look on the bill of quantity. As per such bill of quantity, there was requirement of boring of 95 metres in the loose/filled up ordinary soil/hard soil but excluding the boring in ordinary rock and hard rock strata. There was also provision of 5 metres of boring in rocky strata. Thus, out of the total re-boring depth of 100 metres, 95 metres of the re-boring was to be made in loose/alluvial soil and 5 metres was to be made in rocky strata 10.6 PW10 Shiv Kumar Bhardwaj has also admitted that there was every chance that any bore in alluvial soil, without casing pipe, would collapse. He also admitted that tube-well of Maya Puri was in alluvial soil and there was provision of only 5 per cent of rocky strata which may or may not in continuity.
10.7 PW15 Altap is though an employee of M/s Water Well Drillers yet as prosecution witness, he has admitted in his cross-examination that any bore would collapse if the pipe was not installed upto the last portion of the boring. He also deposed that pea-gravels are put from the top which naturally reach the last level of the boring. He also claimed that if the pipe was not put upto the last point of the boring then all such gravels would automatically CC No. 02/2013 CBI Vs Ashok Pal Panwar etc 20 of 36 block the bore and may eventually close the bore. His such answer is naturally very logical.
10.8 Another prosecution witness i.e. PW20 Sh. Anoop Nagar has also admitted in his cross-examination that casing was required if bore is to be done in alluvial soil and in case no casing was done in any such bore- well/tube-well installed in alluvial soil, such bore-well would collapse. He also deposed that casing was of two types and strainer type of casing used to be put in those portions where there is chance of water seeping in /percolating in. He also deposed that depending on the type of hydro geology of the area, casing would be perforated or non-perforated.
10.9 PW23 Vikas Rathi, Junior Engineer was present at the time of inspection carried out by Dr. Reddy. Court question was asked whether he was able to asses during such inspection that there was any sort of irregularity in the installation of tube-well. However, he responded that it was not his part of the job and his job was to get the assembly removed. Fact, however, remains that even he admitted that in alluvial soil, bore would not work unless the casing was done and there was possibility of corrosion of casing if tube-well was in industrial area. He also admitted that there can be moss formation in bore particularly in alluvial soil and the depth of the bore could stand reduced with the passage of time due to sedimentation. He also categorically admitted in his cross-examination that it was not possible for any bore-well installed in alluvial soil to work when the boring was upto 100 mtrs but the casing was upto 40 metres from top. He rather volunteered that casing would be upto the deeper level but perhaps such casing might not be visible.
CC No. 02/2013 CBI Vs Ashok Pal Panwar etc 21 of 36 10.10 I made an attempt to find out as to on what basis DJB had come
to the conclusion that top 95 metres of the strata was loose or alluvial in nature. It proved to be futile. Fact remains that it happens to be an admitted case of DJB and CBI that as per the terms & conditions of the tender, bill of quantity and justification report, nature of strata was alluvial.
SCIENTIFIC EVIDENCE-VALUE AND IMPACT 11.0 There was source information with CBI.
11.1 It was learnt that officials of DJB had entered into a criminal conspiracy with private contractor M/s Water Well Drillers and there was either no installation or incomplete installation and the entire payment was got released on the basis of false entries appearing in Measurement Book and on the basis of false and forged documents submitted by the contractor. FIR was accordingly registered on 13.09.2011.
11.2 It was also mentioned in the FIR that Johnson pipe was 5-6 times costlier than the ordinary pipe. It was also alleged in the FIR that contractor had used substandard pipes which resulted in muddy water coming out from such tube-well. Accordingly, FIR was registered and investigation was entrusted to Insp. Jagrup Singh by SP Sh. Ganesh Verma.
11.3 Such site was initially inspected on 27.03.2012. Inspection report has been proved as Ex. PW22/B (part of D-8) and the tube-well was found running. In order to find out whether the contractor M/s Water Well Drillers had, in fact, installed the Johnson screen or not, expertise of Dr. D.V. Reddy, Scientist, National Geophysical Research Institute (NGRI) was pressed into service. He has experience in groundwater studies in different CC No. 02/2013 CBI Vs Ashok Pal Panwar etc 22 of 36 hydro-geologic environs and used simple methodology to assess the depth of the well and the nature of casing used. Camera known as bore-hole camera was put inside the bore. It had provision for lighting and also audio and video recording and could go 300 metres deep and such camera used to be connected with monitor on the ground surface and whatever image/footage used to be captured by such camera, could be seen on such monitor. Wherever necessary, voice recording could also be made with respect to the depth or any other related information.
11.4 I have seen the testimony of PW2 Dr. D.V. Reddy who has deposed about the procedure of evaluation of depth of the well and about the type of casing. His report also contains details about the procedure applied and tools used. He deposed that CBI had written a letter to Director, NGRI for inspection of various tube-wells and he was accordingly deputed by the Director to carry out such inspection. He visited tube-well of Maya Puri Phase-II on 29.06.2012. Officials from Central Ground Water Board (CGWB) and official from CBI were also present there. He deposed that when the inspection was carried out, as per the footage received from the camera and with the help of graduated cable, casing of 300 mm blank pipe was noticed upto the depth of 47.25 metres from ground and from 47.25 metres to 57.5 metres, there was MS slotted pipe and after 57.5 metres, he did not notice any pipe at all. He proved his report as Ex. PW1/D. 11.5 Following chart would show the difference about the casing details between the strata chart prepared by the contractor M/s Water Well Drillers and observations as per the video footage received through bore-hole camera:-
CC No. 02/2013 CBI Vs Ashok Pal Panwar etc 23 of 36
Casing details as per Lengths Casing details as per Length Time slot
strata chart Dr. Reddy
300 mm blank pipe 36.6 m 300 mm blank pipe 47.25 m 0-6:03 min
300 mm slotted pipe 6.07 m 200 mm MS slotted 47.25-57.5
pipe m
200 mm Johnson type 48.0 m No pipe blank/slotted
slotted pipe after 57.5 m
200 mm blank pipe 12.0 m
11.6 No light has been thrown as to what exactly was meant by time
slot and whether such time slot was for the entire inspection or for the blank pipe only.
11.7 Video footage pertaining to Maya Puri bore-well was transferred to CD. Dr. Reddy has also deposed in his cross-examination that such recording was immediately transferred to his laptop and then he prepared a CD subsequently in his laboratory. He, however, failed to supply the date when such CD was prepared by him.
11.8 Such CD has been proved as Ex. P-1. It was also run at the time of recording of evidence of Dr. Reddy. It was, inter alia, containing one file in MP4 format having size of 80,250 KB. Total length of such footage is of about 11½ minutes duration. As per such video footage and as per Dr. Reddy, there was blank pipe upto 47.25 metres It was 300 mm blank pipe and thereafter there was reduction and the subsequent pipe was 200 mm MS slotted pipe. The water was noticed at the depth of 42.70 metres and there was no pipe after 57.5 metres. As per Dr. Reddy, he could see the boring of the earth upto the depth of 75.6 metres and thereafter there was no boring at all either.
CC No. 02/2013 CBI Vs Ashok Pal Panwar etc 24 of 36 11.9 Defence has come up with twin-argument. Firstly, according to
them, manner of handling of electronic evidence is totally inappropriate and prejudicial to the defence and, therefore, CD as well as the report of Dr. Reddy are liable to be thrown to dustbin. In alternate, it has been argued that even if this footage is seen and believed, it would become crystal clear that such video footage cannot be of Maya Puri tube-well as it is not possible for any tube-well installed in alluvial soil to survive for such a long duration without any casing. It has been argued that such tube-well was very much working and if there was no pipe of any nature whatsoever after 57.5 metres, there was no possibility of such boring to be in existence at all.
11.10 I have already noticed above that case of CBI is very specific. The re-boring job was meant for alluvial soil and even as per Dr. Reddy, casing is must in alluvial soil.
11.11 If it is assumed that CD (Ex. P-1) pertains to Maya Puri bore- well, the position becomes complex and mystifying. Such bore-well is still functioning. The bore-well is in alluvial soil and as per the video footage, as elaborated and described by Dr. Reddy, there was no casing after 57.5 metres. It is difficult for any bore-well in alluvial soil to survive & exist without casing. Either the footage is not of Maya Puri site or the Court has not been properly apprised about the nature of strata of Maya Puri bore-well.
11.12 Needless to say that the entire case of the prosecution depends upon the video footage contained in CD (Ex. P-1) and observations made by Dr. Reddy. Such CD was played and replayed during the course of the trial and final arguments. It also shows that there was initially some hiccup with the camera as the video went blank. Video footage then started from 3.01 CC No. 02/2013 CBI Vs Ashok Pal Panwar etc 25 of 36 minutes onwards. According to such CD, water level was noticed at the depth of 42.70 metres and there was reduction of pipe at the depth of 47.25 metres Report of Dr. Reddy and his deposition before the Court is very clear. According to him, he noticed blank pipe upto the depth of 47.25 metres He noticed slotted pipe from 47.25 metres to 57.5 metres However, his such observation is not in sync with the video footage. When I saw the video footage, it was clearly visibly that a different type of pipe, perhaps the slotted pipe, was there after 36 metres or so . This can be easily deciphered from the pattern appearing in the inner wall of the pipe. I am not able to assess as to why Dr. Reddy did not notice such apparent pattern and rather reported that the slotted pipe was visible only after 47.25 metres This indicates that perhaps everything is not okay with the graduated cable as well. Camera was also somewhat faulty as per the video footage. Dr. Reddy, in cross- examination, also admitted that there was some mistake in his report.
11.13 Dr. Reddy had been summoned by CBI at the spot for a very specific purpose. He was to comment about the length of the casing and the type of casing. There was a provision of audio recording at the time of inspection through bore-well camera. Dr. Reddy is heard declaring about the various levels of depths reached, striking of water level etc. Nowhere did he whisper that the casing could be seen only upto a particular level? Nowhere did he whisper that top portion of the casing was blank casing and that from a particular level, casing was of slotted nature? He was able to see the video images with the help of palm top and laptop and it is really not explicable as to why he did not make such crucial comments about the casing and the nature of casing then and there.
11.14 As per his profile, he is M.Sc. (Geology) and M.Sc. (Tech) Hydrology. He has also done Doctorate in Groundwater Investigations from CC No. 02/2013 CBI Vs Ashok Pal Panwar etc 26 of 36 NGRI and is involved in groundwater studies. In the present case, however, the Court does not have the benefit of having any sort of technical assistance from him with respect to his aforesaid specialized qualifications. In the present case, he merely viewed the image from the bore-hole camera and gave his comments. He merely claimed that he did not see any casing after 57.5 metres Naturally, if there is no casing then there has to be the typical characteristics of the strata. He could have easily commented that he was able to see the geological strata with its unique features like fractures, fissures or caving etc. It becomes important because he is also found claiming in the video footage that there was a 'joint' at the level of 57.75 metres 'Joint' would naturally indicate that there was another length of pipe below that point of joint. Joint is used for joining two pipes. Which is such pipe? However, he tried to negate the impact of word "joint" by deposing before the Court that his choice of word was not proper. He should have been very specific in his comments and report and should have also elaborated about the nature of strata if at all he was sure that there was no casing below 57.75 metres Moreover, he seems to be unsure and hesitant. According to him, 76.5 metres 'looked to be the end'. He should have been very specific. There is no scope of any surmises, conjectures or guess work in a criminal trial. Moreover, bail-plug is normally welded where the casing ends. Such bail-plug acts as a lid for the bottom most point. Such lid does not let anything enter inside the pipe. Dr. Reddy did not notice any bail-plug which can also mean that perhaps he did not reach the last point. Thus, the observation given by Dr. Reddy seem confined to the video footage and not at all backed up with any scientific analysis.
11.15 Moreover, I cannot be oblivious of the fact that installation was done in 2006 and the bore-hole camera was put inside the tube-well after six years i.e. in the year 2012. The pump was working and the water was CC No. 02/2013 CBI Vs Ashok Pal Panwar etc 27 of 36 available at approximately 42 metres of depth and, therefore, below that level, there can be number of chemical changes due to continuous presence of water, moss formation etc. Even as per CBI, such tube-well is situated in industrial area of Maya Puri and the effluents coming from industries can be highly toxic which can cause quick corrosion.
11.16 These pipes were admittedly of metal and, therefore, chances of corrosion are always there. Tube wells generally stop working and collapse due to problems associated with conventional metal pipes which are prone to corrosion and encrustation. Due to corrosion, the strainer screens and slotted pipes can get damaged easily and the sand particles can enter inside along with the water. Even blank pipes can get corroded and rusty with passage of time and water fetched through such pipes can get contaminated and toxic. Due to encrustation, pipe diametre as well as effective area of the screen reduces and hence tube well can become unserviceable. I am not sure whether Delhi Jal Board is still continuing with metal pipes or not but it is high time to switch over to non-metallic pipes because the metal itself can prove to be toxic and can convert drinkable water into non-potable. There is additional danger coming from effluents and wastes. PW20 Sh. Anoop Nagar has admitted that there was possibility of corrosion of casing depending upon the deposit of effluents coming from such industries and mixing up with the soil and water. He also claimed that depending upon the type and volume of the effluents, it may corrode the casing partially or even completely in case acids were part of such effluents.
11.17 CD (Ex. P-1) also contains the footage of various other tube- wells. Though, presently the Court is not concerned with such other tube- wells but out of curiosity, I had seen the footage of such other tube-wells and particularly of two tube-wells of Khajan Basti. Dr. Reddy was able to assess CC No. 02/2013 CBI Vs Ashok Pal Panwar etc 28 of 36 that these tube-wells were fitted with Johnson type screen. However, the type of screen was not distinctively and peculiarly visible and evident to me, at least.
11.18 Due to lapse of six years and due to the fact that there was continuous presence of water in the bore in question, I am of the view that it cannot be deciphered conclusively that Johnson screen pipes had not at all been installed. The mesh or slots of Johnson pipe are very thin and fine and if there is moss formation or corrosion, it may not be possible for camera to find out the nature of pipe or even the fact whether pipe is there or not. Moreover, bore hole camera was lowered in a very hasty manner. The movement was very fast and jerky. Dr. Reddy is also found saying so in footage. The person holding camera should have lowered the camera very slowly and should have also additionally focused on the various important points and joints in order to be doubly sure about the nature of the casing. Nothing of that sort was done. Rather within approximately seven minutes, entire inspection was carried out. It was a case of serious nature and the job was required to be done with much more patience and precision.
11.19 It will not be out of place to mention here that after the arguments were concluded, I called for the case diary. IO-Insp. Jagrup Singh produced the same. It was noticed that during course of the investigation, IO had written letters to Director, IIT, Delhi and also to Regional Director, Central Ground Water Authority (CGWA) and their assistance was sought in order to find out whether it was possible to extract the underground re-bored pipes and whether any device was available to ascertain the depth of the boring and whether it was possible to take the photographs of such underground pipes. However, they expressed their inability to render any assistance to CBI and accordingly CBI had to rely upon the expertise of NGRI. Such case CC No. 02/2013 CBI Vs Ashok Pal Panwar etc 29 of 36 diary also contains one e-mail sent by Dr. Reddy on 02.07.2012 in which he, inter alia, claimed that though all the bore-wells were under pumping condition, water was not clear (highly turbid) in all the bore-wells and due to such turbidity, he might not be able to give clear boundaries between casing and slotted portion but broadly, their position and lengths could be assessed. He also claimed in his such e-mail that there was camera failure.
11.20 As per site inspection memo dated 29.06.2012, CBI team and Dr. Reddy had visited Maya Puri bore-well at 9.25 PM and the inspection was concluded at 9.40 PM. When I noticed the properties of MP4 file, the same indicated that this file was modified on 29.06.2012 at 21:35. Much more time should have been devoted to this all important task.
11.21 Defence has raised the issue of admissibility of the report due to the non-compliance of mandatory requirements of law. My attention has been drawn towards various provisions contained under Information Technology Act 2000 as well as to Section 65B of Indian Evidence Act. Reliance has also been placed upon BRIJ KISHORE VS. STATE (CRL. APPEAL NO. 927/2008, DELHI HIGH COURT, DOD: 10.05.2010). To counter the same, learned Prosecutor has relied upon the STATE VS. NAVJOT SANDHU (2005) 11 SCC 600 ( better known as Parliament attack case), VODAFONE ESSAR LTD. VS. RAJU SOOD 2010 (4) BOM CR and RAVI KANT SHARMA VS. STATE (CRL. APPEAL NO. 357/2008, DELHI HIGH COURT, DOD: 12.10.2011). According to her, scientific evidence cannot be overlooked casually and need to be treated as correct and genuine unless the same is contradicted by bringing convincing material on record by defence. She has argued that irrespective of the compliance of Section 65B of Indian Evidence Act, there is no bar in adducing secondary evidence. She has also argued that even otherwise hard-disc contained in laptop or palm top cannot CC No. 02/2013 CBI Vs Ashok Pal Panwar etc 30 of 36 be termed as a document as it cannot be perceived by the human senses.
11.22 Let me, however, not fall into this question at all. Electronic evidence is naturally a different kind of species altogether. To me, on most of the occasions, electronic evidence is neither primary evidence nor perfect secondary evidence in the conventional way. It is rather deemed evidence. Ideally, Dr. Reddy should have attached some sort of certificate along with the report in order to show that all the statutory requirements as provided under Section 65B Indian Evidence Act were met but I would go to the extent of commenting that even if such certificate was there, it would not have served the purpose of prosecution in view of the facts already discussed above.
11.23 Dr. Reddy has, in his report, mentioned about the geographical position of the Maya Puri by giving longitude and latitude values. These val- ues were cross-checked by the court from Internet and undoubtedly these happen to be of Maya Puri Phase-II, Industrial Area. Learned Prosecutor has stated that such fact, in itself, indicates that bore-well examined by Dr. Reddy was of Maya Puri Phase-II only and, therefore, report cannot be doubted and there is no chance of mixing up the report with any other tube-well as pro- claimed by defence. I would only like to supplement here that it would have been better if at the time of actual inspection, Dr. Reddy had made utterances about the vital details regarding length of casing and type of casing and simul- taneously, compact disc was also handed over to the investigating agency, then and there. After all, accused Ashok Pal Panwar was also present at the spot at that time and his signatures on such vital document containing such crucial observations and also on the compact disc would have given a strong boost to the case of prosecution and would have also averted the allegation of any tampering. Moreover, such compact disc should have been, as a safe- guard, sent to forensic laboratory in order to have corroboration that there CC No. 02/2013 CBI Vs Ashok Pal Panwar etc 31 of 36 was no editing and that file was in complete continuity. I have already ob- served above that even otherwise the footage is not very clear. Before putting bore-hole camera inside the bore, IO should have, in the same footage, captured the outside view simply to demonstrate that the bore-well was in fact of Maya Puri Phase-II, Industrial Area and not of any other area/site. Nothing of that sort was done. The manner of lowering down the camera is pathetic. There is no focus on vital points. There is also turbidity in the water and in such a situation, it may not be a good idea to convict anyone merely on the basis of such video footage.
11.24 I cannot be oblivious of the fact that when CD was played, in the initial part of the footage, Dr. Reddy is found claiming that camera was not functioning properly (camera kuchh garbar kara raha hai). He claimed that there was reduction in size from 300 mm to 200 mm but surprisingly, he did not notice any connector or welding. It beats my imagination how there was reduction of diametre without there being any connector or welding. It also indicates that camera could not capture the basic details at all.
11.25 Dr. Reddy has been claimed to be an expert but I have already made mention above that he has only given that description of video footage as is visible to naked eyes. He has not done any scientific analysis of any nature whatsoever. As per Section 45 of Indian Evidence Act, opinion of any person having specialized qualification is relevant but fact remains that Dr. Reddy has not demonstrated any special skill at all. Undoubtedly, he is found having knowledge about the hydro-geology but in the present case, his utterances are merely based on images. These images can be interpreted by any other ordinary man as well and, therefore, it would be hard to treat and rely on him as an expert in the present context at least. Moreover, opinion of any such expert is only a relevant fact. Such opinion is advisory in nature. Dr. CC No. 02/2013 CBI Vs Ashok Pal Panwar etc 32 of 36 Reddy has not, as mentioned above, furnished any scientific criteria which may be backing up his opinion and conclusion. In such a peculiar backdrop, his opinion does not really seem to be self-sufficient CONCLUSION 12.0 The technology has advanced a lot. With the help of basic and commonly download-able software, it is virtually a child's play to edit any such clip. Any clip can be split into two and any two separate clips can be merged in one with complete precision. It may not be possible for naked eyes to detect any such splitting or merger. In such a situation, therefore, it was desirable to have sent such CD to forensic laboratory to exclude any possibility of any tampering. Electronic evidence is required to be handled with utmost care and caution. There should not be any chance of causing any sort of prejudice to the accused due to inept handling of electronic evidence. Dr. Reddy had sent the CD to Insp. Jagrup Singh in loose cover. Such CD was not received by the Court in any sealed envelope directly from Dr. Reddy and, therefore, also it was very important to have a forensic opinion with respect to the authenticity of contents of such MP4 file and positive evidence to the fact that there was no tampering with the contents or that contents had not been edited in any manner whatsoever.
12.1 Method adopted by CBI was novel albeit requisite safeguards should have been taken while capturing the footage electronically. Moreover, there can be various other types of tests to ascertain about the presence of metal in such bore. No other test has been conducted by CBI. It is quite possible that due to strong moss formation, pipe was not visible and perhaps the metal detector would have reflected the presence of metal even below 57.50 metres CC No. 02/2013 CBI Vs Ashok Pal Panwar etc 33 of 36 12.2 PW10 Shiv Kumar Bhardwaj has deposed that alluvial soil was mixture of sand and clay. He also admitted that soil, which used to be taken out from the bore, was required to be preserved as mentioned in BOQ. It remains a very significant aspect of the case. As per the BOQ, the contractor must have preserved strata of different layers and these must have been handed over to Delhi Jal Board for storing up.
12.3 BOQ clearly indicates the following requirements mentioned at serial no. 11 & 12:-
S. Description of Items Qty. Rate Unit Amount
No.
11 Preservation of sample of strata of the 15.00 7.50 Each 112.50
bore hole in wide mouth glass jar
collected from different reaches as per
direction of E-in-charge.
12 Taking water samples from different 1.00 30.00 Each 30.00
depth of water level after continuous
bailing put for 6 hrs and filling the same
in 500 ml. bottles and getting it tested
from Mpl. Lab. (testing will be done
departmentally) free of cost).
12.4 I do not know whether lapse on this score is intentional or
otherwise but these preserved jars containing strata have been kept aloof from judicial scrutiny. It would have been very handy to see and assess nature of strata and, therefore, I am compelled to draw adverse inference against prosecution for withholding such evidence.
12.5 I also cannot be oblivious of the fact that such tube-well was situated in an open area. Insp. Jagrup Singh has admitted in his cross-
CC No. 02/2013 CBI Vs Ashok Pal Panwar etc 34 of 36 examination that such tube-well was in open. He did not notice any
chowkidar (watchman) when he had gone to such tube-well for inspection. It was imperative for prosecution to have at least satisfied the Court that there was no chance of anyone interfering with such tube-well. After all, it was property of Delhi Jal Board but it seems that such tube-well was accessible to one and sundry. Surprisingly, investigating officer even does not know the difference between MS slotted pipe and Johnson pipe as admitted by him in his cross-examination. Concerned Zonal Engineer and Executive Engineer were not cited as witnesses. They have neither been made accused. IO also claimed that he did not verify whether strata extracted during the boring process was lying preserved with DJB or not. He also did not collect any document to show as to what type of strata was there in Maya Puri. Rather he volunteered that such strata was shown as alluvial soil in the contract. He did not verify about the existence of firm of M/s Marine Time Water Supply Services from the office of Income Tax and jumped to wrong conclusion in haste and out of sheer enthusiasm albeit misplaced one. Case of the prosecution is that the Johnson pipes are costlier than MS slotted pipes and there was wrongful loss to Delhi Jal Board as cheaper/ substandard pipes had been installed. Again, fact remains that there is no evidence on record to substantiate such assertion. No prosecution witness has apprised the Court about the price of normal pipe, MS slotted pipe and Johnson pipe.
12.6 Prosecution has also miserably failed to demonstrate any fact or circumstance which may indicate any sort of meeting of mind amongst all the four accused persons. Since it is a case of conspiracy, prosecution was under obligation to prove such element of conspiracy either by direct evidence or by inference but there is nothing on record to infer any sort of nexus or conspiracy. Merely because accused Ashok Pal Panwar was Junior Engineer, it cannot be automatically and robotically inferred that he was CC No. 02/2013 CBI Vs Ashok Pal Panwar etc 35 of 36 acting in league with his co-accused.
12.7 In view of my foregoing discussion, I am inclined to grant benefit of doubt to all the accused persons and acquit them of all the charges levelled against them in the present case.
12.8 Their bail bonds are cancelled. Previous sureties are discharged.
12.9 All the accused are simultaneously directed to submit Bonds u/s 437A Cr.P.C. in sum of Rs. 25,000/- each with one surety of like amount.
12.10 Ahlmad is directed to paginate and book-mark for digitization purpose.
12.11 File be consigned to Record Room.
Announced in the open Court On this 22nd day of February of 2014.
(MANOJ JAIN)
Special Judge (PC Act) (CBI)
South Distt: Saket Courts: New Delhi
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