Delhi District Court
Cbi vs . Vasant S. Bhat Etc on 10 March, 2017
IN THE COURT OF MS. ANJU BAJAJ CHANDNA,
SPECIAL JUDGE (PC ACT) (CBI)6,
PATIALA HOUSE COURT, NEW DELHI
CC No. 51/13 (Reg. No. 28/16)
RC SI8 2006 E 0007EOU.IV/CBI/New Delhi
U/s 120B r/w 420 IPC & Sec 13(2) r/w Sec 13(1)(d) of PC Act 1988.
CBI vs. Vasant S. Bhat etc
CNR No. DLND010000212009
Central Bureau of Investigation
vs
1. Vasant S. Bhat (A1),
S/o Shri Shanta Ram Bhat,
R/o House No. 21, 5th Cross, Prasanth Nagar,
Bangalore79
2. M/s Nestor Pharma Ltd (A2), the company,
Address: B24/3, Okhla Industrial Area, PhaseII, New
Delhi and 11, Western Extn. Area, Faridabad.
3. Rahul Sehgal (A3), President and Director,
M/s Nestor Pharma Ltd. New Delhi and Faridabad.
(Discharged vide Order dated 08/09/2015)
R/o B364, New Friends Colony, New Delhi.
4. Suresh Kumar Dua (A4),
S/o Late Laxman Das Dua
R/o House No. 242, Sector14, Faridabad, Haryana
RC SI8 2006 E 0007EOU.IV/CBI/New Delhi CBI vs. Vasant S. Bhat etc Page 1 of 45
5. Pradeep Choudhary (A5),
S/o Late Nanak Chand Chaudhary
R/o House No. 272, Sector14, Faridabad, Haryana.
Date of FIR : 21/08/2006
Date of filing of chargesheet: 27/04/2009
Date of cognizance : 08/07/2009
Date of framing of charge : 15/09/2015
Arguments concluded on : 02/03/2017
Date of Judgment : 10/03/2017.
Appearances
For prosecution : Sh. P.K. Dogra, Ld. Senior Public Prosecutor for CBI.
For Accused persons : Sh. Radhesh Makrandi, Ld. Counsel for A1.
Sh. Himanshu Anand Gupta, Ld. Counsel for A4.
Sh. Sudershan Rajan, Ld. Counsel for A2 and A5.
JUDGMENT
1. Accused V.S. Bhat (A1) (public servant) General Manager (procurement), Hindustan Latex Ltd (HLL); M/s Nestor Pharmaceuticals Ltd (A2) company through its Vice President, accused Suresh Kumar Dua (A4) (public servant), State Drug Controller cum licencing authority (Retd.), Govt. of Haryana and accused Pradeep Choudhary, Vice President (Institutional Sales) (A5) of M/s Nestor Pharma Ltd have been prosecuted for the offences punishable u/s 120B IPC r/w 420 IPC and section 13(2) RC SI8 2006 E 0007EOU.IV/CBI/New Delhi CBI vs. Vasant S. Bhat etc Page 2 of 45 r/w 13(1)(d) of the Prevention of Corruption Act, 1988 and substantive offences thereunder.
2. The present case was registered on the basis of complaint received from Ministry of Health and Family Welfare, Government of India, New Delhi. The matter pertains to awarding of supply contracts of pharmaceutical products under RCH projects by Hindustan Latex Limited (HLL) for the years 200102, 200203 and 200304.
3. According to prosecution, accused V.S. Bhat (A1) (public servant) posted as General Manager (Procurement) has been over all incharge of procurement in respect of RCH Projects. He was also the head of bid evaluation committee and in the capacity of public servant, VS Bhat shown undue favour to M/s Nestor Pharmaceuticals Ltd in granting supply contracts ignoring the essential requirements of bid conditions. There has been conspiracy between accused VS Bhat and M/s Nestor Pharmaceuticals Ltd and its officials in sanctioning the contracts. According to the bid conditions, requirement of WHO GMP certificate was the essential condition, which has been completely violated in the manner that supplies were made from Goa Unit which never had WHO GMP certificate with respect to RC SI8 2006 E 0007EOU.IV/CBI/New Delhi CBI vs. Vasant S. Bhat etc Page 3 of 45 MEM tablets. The supplies continued over the period years 2002 to 2004. Accused VS Bhat had accepted not only the supplies from Goa Unit but also deputed his officials for inspection and sampling of consignments at Goa Unit and thereafter also issued release orders. The bids were submitted by M/s Nestor Pharmaceuticals Limited with respect to its Faridabad unit and at no point of time, it was proposed that supplies would be made from its Goa Unit. Accused VS Bhat has been the team leader of HLL and had over all responsibility of the project.
4. The firm M/s Nestor Pharmaceuticals Ltd (A2) and its Vice President Pradeep Choudhary (A5) in conspiracy, violated the terms of contract and diverted the manufacturing activities of MEM tablets to their Goa Unit knowing that same was not WHO GMP compliant and as such did not qualify for making the supplies. It is also the prosecution case that accused Pradeep Choudhary on behalf of M/s Nestor Pharmaceuticals Ltd colluded with accused S.K Dua (A4) and fraudulently obtained WHO GMP and COPP certificates with qualification certificate dated 09/11/2001 and the said certificates were used with the bid submissions in order to obtain the contracts.
5. According to prosecution, accused S.K Dua, public RC SI8 2006 E 0007EOU.IV/CBI/New Delhi CBI vs. Vasant S. Bhat etc Page 4 of 45 servant assumed charge of licencing authority as Deputy Drug Controller in October 2001 and remained there till June 2004. He dishonestly and by abusing his official position issued COPP (Certification Of Pharmaceutical Products) no. 233/01 dated 09/11/2001 and also qualification certificate dated 09/11/2001 for MEM tablet ignoring the fact that WHO GMP certificate in respect of MEM tablet was cancelled on 28/02/2000 and manufacturing was suspended for 18 months. Accused S.K Dua was also aware of regular complaints against M/s Nestor Pharmaceuticals Ltd with respect to MEM tablets. The certificates were unauthorizedly issued without their being any application of the firm and the same were used by M/s Nestor Pharmaceuticals Ltd in the course of bid submissions to HLL for obtaining the contracts worth crores.
6. On completion of investigation, the chargesheet was submitted in the court. On consideration of complaint and contents of the chargesheet, the detailed order on charge was passed on 08/09/2015, whereby the charges were framed against above named accused persons in the following manner:
(i) Accused Vasant S. Bhat (A1) for the offences punishable u/s 120B r/w 420 IPC and Section 13(1)(d) of PC Act, 1988 and also for substantive offence u/s 13(2) r/w 13(1) RC SI8 2006 E 0007EOU.IV/CBI/New Delhi CBI vs. Vasant S. Bhat etc Page 5 of 45
(d) of PC Act, 1988.
(ii) Accused M/s Nestor Pharmaceuticals Ltd (A2) and Pradeep Choudhary (A5) for the offences punishable u/s 120B r/w 420 IPC and Section 13(1)(d) of PC Act, 1988 and also for substantive offence u/s 420 IPC.
(iii) Accused Suresh Kumar Dua (A4) for the offences punishable u/s 120B r/w 420 IPC and Section 13(1)(d) of PC Act, 1988 and also for substantive offence u/s 13(2) r/w 13(1)(d) of PC Act, 1988.
All accused pleaded not guilty and claimed trial. Accused Rahul Sehgal (A3) has been discharged vide said order on charge.
7. The prosecution has examined 23 witnesses during the trial of the case. The sum and substance of the same is as follows: PW 1 Manoj Kumar Kejrewal, Under Secretary (Vigilance) in the Ministry of Health and Family Welfare, deposed about complaint Ex. PW 1/A on the basis of which the present FIR was registered by CBI against the accused persons.
PW 2 Dr. M. Ayyappan, posted as Chairman and Managing Director of HLL during the year 2009, granted RC SI8 2006 E 0007EOU.IV/CBI/New Delhi CBI vs. Vasant S. Bhat etc Page 6 of 45 sanction to prosecute accused VS Bhat vide order Ex PW2/A. PW 3 Vikas Talwar, posted as Field Level Sample Collector in Procurement Department of HLL, during the year 200304, deposed that he used to visit factories/units for the purposes of inspection and sampling on the instructions of Santosh A.K. The over all supervision was done by VS Bhat. The witness visited Goa plant of M/s Nestor Pharmaceuticals Ltd for the purposes of sampling and proved the relevant letters, records, certificates, inspection notes etc. He also identified the signatures of VS Bhat on the concerned documents.
PW 4 Pankaj Kumar, Assistant with HLL also conducted inspection and sampling during the year 200204 for sending the samples to approved government laboratories. He visited Goa and Faridabad on the instructions of his immediate senior Santosh A.K and proved the relevant letters, sample drawing reports and certification etc. PW 5 R.Y Arlekar, Assistant Drug Controller in the Directorate of Food and Drug Administration, Government of Goa, furnished attested copies of official record of M/s Nestor Pharmaceuticals Ltd bearing his signatures on every page RC SI8 2006 E 0007EOU.IV/CBI/New Delhi CBI vs. Vasant S. Bhat etc Page 7 of 45 (available in file D27 as Annexure A,B and C). The witness identified his signatures on letters dated 30/07/2002 Ex PW5/A and Ex PW5/B, whereby the record was forwarded. The witness stated that according to the record, Goa plant of M/s Nestor Pharmaceuticals Ltd was never granted WHO GMP in respect of tablets during 200105 but in respect of capsule products it was granted.
PW 6 Ramesh Chander Khatter, joined M/s Nestor Pharmaceuticals Ltd Faridabad during 1981 as Administrative Officer and retired therefrom in 2010. The witness deposed that Pradeep Choudhary was looking after government supplies under various world bank sponsored health projects. The witness testified about bid file (D10 Ex P3) but stated that he had no role to play in preparing bid documents. Sh. S.T Hathiari, Executive Director used to deal with tender documents. The witness was cross examined on behalf of CBI, during which he was confronted with his statement u/s 161 Cr.P.C Mark PW6/A. PW 7 Amit Sethi, Bio Medical Engineer in HLL during year 200105 was deputed to inspect assignment of tablets of M/s Nestor Pharmaceuticals Ltd at Faridabad and Goa RC SI8 2006 E 0007EOU.IV/CBI/New Delhi CBI vs. Vasant S. Bhat etc Page 8 of 45 Units. The samples used to be drawn in the presence of representative of the firm and the witness has further proved sample drawing reports, certification of sample, offer letters, inspection reports etc. The witness however could not say that drugs were required to be supplied from WHO GMP compliant manufacturing unit under the guidelines of the World Bank. The witness also could not say anything about failure on the part of procurement division of HLL. The witness was cross examined on behalf of CBI, during which he denied the suggestions that M/s Nestor Pharmaceuticals Ltd had not adhered to the terms of the contract or he stated so in his statement u/s 161 Cr.PC. The witness was confronted with his statement Mark PA. The witness denied the suggestion that he has been deposing falsely to favour the accused persons.
PW 8 V.A Sashidharan Nair, was posted as company secretary and Assistant General Manager (Finance) with HLL from 1997. He was also one of the member of bid evaluation committee during year 200304. According to the witness, the duty of bid evaluation committee was to evaluate the bids. The committee was having 5 or 6 members and VS Bhat was General Manager (Procurement). The report used to be signed by the committee members. The witness proved bid evaluation reports RC SI8 2006 E 0007EOU.IV/CBI/New Delhi CBI vs. Vasant S. Bhat etc Page 9 of 45 Ex P1, Ex. P5, Ex PW8/A and identified signatures of VS Bhat. The witness also deposed about bid Ex PW8/B and Ex PW8/C. The witness was cross examined on behalf of CBI during which he denied the suggestion that VS Bhat was responsible for conducting inspections, drawing samples, and releasing supplies and accordingly he was confronted with his statement recorded u/s 161 Cr.P.C Mark PX. The witness further admitted that operational part of RCH programme was totally under the control of VS Bhat.
PW 9 Alok Prakash Singh, Supervisor with HLL, Procurement Division conducted sampling of drugs at unit of M/s Nestor Pharmaceuticals Ltd situated at Goa and proved the sample drawing report Ex PW9/A, offer letter of M/s Nestor Pharmaceuticals Ltd, certificate for sampling, inspection reports etc. PW 10 Denis Moraes, Director with M/s Nestor Pharmaceuticals Ltd Goa, deposed that Goa plant was started in 1998 and drug licence was granted with respect to tablets and capsules vide Ex PW5/DA and Ex PW5/DB. The manufacturing unit of M/s Nestor Pharmaceuticals Ltd, Goa was issued scheduleM certificate by drug authority in September 2001 RC SI8 2006 E 0007EOU.IV/CBI/New Delhi CBI vs. Vasant S. Bhat etc Page 10 of 45 which means unit was observing good manufacturing practice under Drugs and Cosmetic Act. WHO GMP certificate was applied for and same was issued with respect to capsules but not with respect to tablets. The witness has no knowledge if supply was diverted to Goa unit under the contract. The witness was cross examined on behalf of prosecution, during which he was confronted with his statement recorded u/s 161 Cr.P.C Mark PA.
PW 11 Rengit Gopinathan, Contracts Engineer with HLL deposed that during 200304 HLL Procurement Division was headed by accused VS Bhat. The witness proved the sample drawing reports and connected documents and also inspection notes, supply orders, letters etc. He also deposed about bids but stated that he did not deal with the same and therefore not in a position to tell as to from where the supplies were required to be made. The witness was cross examined on behalf of CBI during which he denied that his statement was recorded u/s 161 Cr.P.C.
PW 12 Surendre Kumar Bejroi, posted as Junior Field Officer with supply division of Ministry of Health and Family Welfare, deposed that his duty was to deal with the file pertaining to procurement of drugs under RCH Project. He could RC SI8 2006 E 0007EOU.IV/CBI/New Delhi CBI vs. Vasant S. Bhat etc Page 11 of 45 not, however, tell about the procedure or the conditions of bids and qualifications thereof. The witness, however, identified his signatures on letter Ex PW12/A. During cross examination on behalf of prosecution, witness denied having got recorded statement u/s 161 Cr.P.C Mark PW12/A and Ex PW12/B and was accordingly confronted.
PW 13 Ajeet Kumar Singh, conducted the investigation of the present case and deposed about FIR Ex PW13/A. He collected records from HLL relating to procurement of pharmaceutical products and received documents and information from Smt Arundhati Kandwal and deposed about various records and letters and documents received during the investigation. He recorded statements of various witnesses u/s 161 Cr.P.C and on completion of investigation submitted the chargesheet. During cross examination IO admitted that original statements u/s 161 Cr.P.C are not available on record nor he placed on record the statement of complainant recorded u/s 161 Cr.P.C. He also admitted that seizure memos and receipt memos were not filed along with the chargesheet and only the original documents were filed. He did not seize originals of Ex PW17/A (page 5456) (D26). He did not conduct any investigation as to how Ex PW17/A was sent to M/s RC SI8 2006 E 0007EOU.IV/CBI/New Delhi CBI vs. Vasant S. Bhat etc Page 12 of 45 Nestor Pharmaceuticals Ltd. IO denied the suggestion that no documents were seized from R.M Sharma, State Drug Controller, Haryana. He further denied the suggestion that he has put on record the selective documents favouring the prosecution. He admitted that no complaint about quality of drugs supplied by M/s Nestor Pharmaceuticals Ltd under the contract was ever received.
PW 14 Ram Mohan Sharma, State Drug Controller from July 2004 to December 2011, deposed about the record Ex PW13/D, Ex PW13/E, Ex PW14/A issued under his signatures. He furnished the required information to the CBI. The witness stated that Ex PW13/F was issued under his signatures. The witness has been cross examined on behalf of accused.
PW 15 Mrs Arundhati Kandwal, has been the assistant manager (Finance) with HLL in the year 2001. She had supplied relevant record relating to RCH Project for MEM and Paracetamol tablets vide Ex PW15/A (colly). The bids were opened by tendering opening committee and she has been the part of the same as member (Finance). She deposed about bid Ex P3 submitted by M/s Nestor Pharmaceuticals Ltd and identified the signatures of other members of the committee and RC SI8 2006 E 0007EOU.IV/CBI/New Delhi CBI vs. Vasant S. Bhat etc Page 13 of 45 also that of VS Bhat. She further deposed about bid Ex P6 and about the various connected letters, supply orders, statements showing details of payments, bid evaluation reports Ex P5, Ex. P1, Ex PW8/A. The witness was also cross examined on behalf of prosecution, during which she stated that no formal statement was recorded by the IO and denied having got recorded statements during the investigation.
PW 16 Sham Lal, Assistant in the office of State Drug Controller, Panchkula, Haryana, deposed that RM Sharma was State Drug Controller during the year 2008. He does not know S.K Dua. The witness deposed about letter Ex PW13/D and attested copies of official records bearing his signatures. The witness however, could not identify signatures of accused S.K Dua.
PW 17 Mukund Lal Garg, remained posted as State Drug Controller, Haryana from April 1992 to August 2000 and proved the letter sent to M/s Nestor Pharmaceuticals Ex PW17/A. PW 18 Pehlad Singh, remained posted as Assistant in the office of State Drug Controller, Haryana and stated that RC SI8 2006 E 0007EOU.IV/CBI/New Delhi CBI vs. Vasant S. Bhat etc Page 14 of 45 S.K Dua was posted as State Drug Controller. The witness deposed about D25 (official record) and identified his notings and signatures. The witness identified signatures of S.K Dua on COPPs nos 228/01, 229/01, 230/01, 231/01, 232/01 [Ex PW18/B (colly)] and forwarding letter Ex PW18/A. The witness also identified signatures on notesheets and other records but has not been able to give definite answer about COPP no. 233/01.
PW 19 Daryao Singh Rohila, Assistant in the office of State Drug Controller, Haryana has also deposed about official records of the drug controller office and was also cross examined at length.
PW 20 Mohd Hussain Ansari, Deputy Director with Ministry of Health, Government of India, worked in Supply and Social Marketing Wing. The witness has deposed about the procedure, whereby bid evaluation reports along with recommendations were deliberated at the level of the ministry. The witness has also deposed about the concerned record, whereby approval was granted in respect of contracts in favour of M/s Nestor Pharmaceuticals Ltd.
RC SI8 2006 E 0007EOU.IV/CBI/New Delhi CBI vs. Vasant S. Bhat etc Page 15 of 45PW 21 Santosh A.K, Mechanical Engineer with HLL deposed about bid evaluation reports, sampling drawing reports, certificate of samples, offer letters etc. PW 22 Dr. Satyendra Nath Pal, remained project manager with HLL and was Executive Director (Technical) with HLL and also remained associated with RCH project of 199899. According to the witness, he does not possess complete knowledge about WHO GMP certification, its requirements and implementation thereof. The witness was cross examined on behalf of prosecution.
PW 23 R. Narayana Swamy, consultant with HLL deposed about the procedure of issuance of WHO GMP certificate and COPP. The witness further stated that he has no knowledge whether WHO GMP certificate was essential for domestic procurement. The witness has been cross examined on behalf of prosecution as well as defence.
8. All the above witnesses have also been cross examined on behalf of defence. Thereafter, prosecution evidence was closed.
RC SI8 2006 E 0007EOU.IV/CBI/New Delhi CBI vs. Vasant S. Bhat etc Page 16 of 459. Statements of accused persons were recorded u/s 313 Cr. PC separately, wherein entire incriminating evidence have been put forth in question answer form.
10. In his statement recorded u/s 313 Cr. PC, accused VS Bhat (A1) stated that V. Ashok Kumar was procurement head during the year 200304; contents of FIR are false; orders were placed, notification awards were issued, supply orders were issued on the directions of Ministry of Health. He further stated that Ex PW15/B (D22) is signed by Deputy Director Supplies. He could not have overruled the decision of the ministry and approval of notification of the award were conveyed to M/s Nestor Pharmaceuticals Ltd. Bills were processed by the finance department. WHO GMP certificate is required for the export/import of drugs and not for domestic supplies. He also stated that he never abused his powers as a public servant and discharged his duties diligently within the frame work of law. The members of the bid evaluation committee were experts in their respective fields and would examine the bids in their respective fields of specialization. He had not over ruled the respective decisions of the specialists/members. The bid evaluation reports were then sent to the Ministry. In the Ministry, the bids were evaluated and scrutinized at two levels, firstly, RC SI8 2006 E 0007EOU.IV/CBI/New Delhi CBI vs. Vasant S. Bhat etc Page 17 of 45 Social Supply Marketing Division consisting of Director (SSM), Joint Director (SSM), Deputy Director (SSM) and Assistant Director (SSM) and thereafter, documents used to be sent to another committee called tender purchase committee consisting of Joint Secretary/Additional Secretary as head and other members like Joint Secretary (Procurement), Deputy Commissioner, Director (SSM) and Deputy Director (SSM). The ministry could reject or accept the recommendations of the bid evaluation committee or call for clarifications. Ministry was the final authority to approve or reject award of tender and neither HLL nor its employees had any power to over rule the decision of the ministry. Ministry had approved grant of award to Nestor Pharmaceutical Limited, New Delhi. Excise exemptions were granted by the ministry for manufacture of some items from Goa Unit of M/s Nestor Pharmaceutical Limited. The excise exemption certificates were issued by Joint Secretary, Ministry of Health & Family Welfare to Excise Commissioner, Goa favouring Nestor Pharmaceuticals, Goa. The DGM/Procurement Specialist, HLL sent the personnel for inspection and sampling of each and every batch of drugs manufactured at Goa. After the receipt of favourable reports from government approved labs, Nestor, Goa was directed to dispatch supplies. The payments RC SI8 2006 E 0007EOU.IV/CBI/New Delhi CBI vs. Vasant S. Bhat etc Page 18 of 45 were made by Finance Division of HLL after completion of supplies and processing of bills. The inspections and samples were conducted as per Standard Operating Procedures of HLL. The supplies were accepted only when the same were found to be of the requisite quality and quantity. There is no complaint from anywhere with respect to quality or quantity and no wrongful loss or wrongful gain has occurred to anyone or the government. A departmental inquiry was also conducted in regard to the same allegations and he was honourably exonerated of all the charges which was accepted by the CVC and Ministry of Health & Family Welfare and thereafter he was given all his retirement benefits (referred to Mark Ex PW11/D1). Accused pleaded false implication.
11. In his statement recorded u/s 313 Cr. PC, accused Pradeep Choudhary (A5) for himself as well as for M/s Nestor Pharmaceuticals Limited (A2) stated that contents of FIR are false; Ministry approved award of contract to M/s Nestor Pharmaceuticals and that WHO GMP certificate is required for the export/import of drugs and not for domestic supplies; listed items of COPPs have been deliberately concealed by the prosecution. Order sheets pertaining to COPP/qualification forms have deliberately not filed; the approval at page no. 206 RC SI8 2006 E 0007EOU.IV/CBI/New Delhi CBI vs. Vasant S. Bhat etc Page 19 of 45 of D25 does not pertain to issuance of qualification forms and COPPs; Original records were missing and incomplete. Original documents were not produced before the court; Originals of statements u/s 161 Cr.P.C have not been placed on record deliberately. He also stated that all allegations contained in the present case are baseless and false. The contracts were rightly awarded to M/s Nestor Pharmaceutical Limited. No forged or fabricated documents were filed along with the bids. All documents were submitted as per the terms and conditions of the contract. No tender condition was violated. Tenders were not evaluated on the basis of COPP as same was not a requisite condition of the tender. No wrongful loss or wrongful gain was caused to anybody. No favour /undue favour was done to M/s Nestor Pharmaceuticals. The ministry had approved the award of contracts and had also issued excise exemption certificates after going through all the documents following the rules and procedures for manufacture of some items at Goa. The tender was awarded as per law and procedure by the ministry. The witnesses have deposed on the basis of incomplete and missing records. The WHO GMP was required only for international bidders participating in India and not for domestic bidders. Accused has pleaded innocence and false implication.
RC SI8 2006 E 0007EOU.IV/CBI/New Delhi CBI vs. Vasant S. Bhat etc Page 20 of 4512. In his statement recorded u/s 313 Cr. PC, accused S.K Dua (A4) stated that he never abused his powers as a public servant or otherwise at any point of time. He always discharged his duties diligently and strictly within the bounds of law. All the allegations contained in the present case are baseless and false. Accused pleaded innocence.
13. All accused preferred not to lead evidence in their defence.
14. I have heard Sh. P.K. Dogra, Ld. Senior PP for CBI, Sh. Radhesh Makrandi, Ld. Counsel for accused VS Bhat (A1), Sh. Sudershan Rajan, Ld. Counsel for accused M/s Nestor Pharmaceuticals Ltd (A2) and Pradeep Choudhary (A5) and Sh. Himanshu Anand Gupta, ld counsel for accused S.K. Dua (A4) and examined the record and also gone through the written submissions filed on behalf of defence along with relied upon judgments.
15. The first charge against accused VS Bhat (A1), M/s Nestor Pharmaceuticals Ltd (A2) and its Vice President Pradeep Choudhary (A5), has been that they all agreed to do illegal act by entering into conspiracy and public servant VS Bhat favoured RC SI8 2006 E 0007EOU.IV/CBI/New Delhi CBI vs. Vasant S. Bhat etc Page 21 of 45 M/s Nestor Pharmaceuticals Ltd by permitting supplies from Goa Unit of M/s Nestor Pharmaceuticals despite the fact that same was not WHO GMP compliant.
16. It is argued on behalf of prosecution that compliance to bid conditions in the light of which the contracts were executed, has been the responsibility of successful bidder. In the present case, M/s Nestor Pharmaceuticals Ltd submitted bids with documents of Faridabad unit as also the same has been WHOGMP compliant, however, supplies under the contracts were made from Goa unit in violation. Team leader accused VS Bhat colluded with M/s Nestor Pharmaceutical Ltd to allow drawing of samples from Goa unit and also by accepting supplies therefrom.
17. It is contended on behalf of accused V.S Bhat (A1) that although he has been team leader but his functions were mainly supervisory in nature and many officials of HLL were involved in the project and decision making process. The bids were evaluated independently by separate committee and there is no evidence that he influenced the members or his decision prevailed over the others. The final authority to grant approval rested with the Ministry of Health and Family Welfare and there RC SI8 2006 E 0007EOU.IV/CBI/New Delhi CBI vs. Vasant S. Bhat etc Page 22 of 45 is no irregularity in the process of bid evaluation or grant of contracts. It is also submitted that even after his suspension, the project was taken over by Sh. V. Ashok Kumar and he continued with the same practice by allowing sampling and inspection from Goa unit.
18. It is submitted on behalf of M/s Nestor Pharmaceutical Ltd (A2) and accused Pradeep Choudhary (A5) that there has been no specific condition or undertaking either in the bid documents or in the contracts that supply of drugs/tablets would be made exclusively from Faridabad unit. The Goa unit of M/s Nestor Pharmaceutical was granted schedule M licence, which itself is evidence of adopting goods manufacturing practice by the unit. There has been no extra qualification required for getting WHO GMP certificate and eligibility conditions for obtaining scheduleM licence as well as for WHO GMP certificate were the same. It has also been contended that in M/s Rohit Drugs and Ors vs The State and Ors., AIR 2002 J & K 127, court has given specific findings that requirement of WHO GMP certificate is not statutorily mandatory.
19. It is also argued that M/s Nestor Pharmaceuticals Ltd RC SI8 2006 E 0007EOU.IV/CBI/New Delhi CBI vs. Vasant S. Bhat etc Page 23 of 45 has participated in the tender as a composite company from its head office at Delhi. In the financial statements, i.e. balance sheets submitted by M/s Nestor Pharmaceuticals Ltd, sales turnover of both plants (Faridabad and Goa) are included. The requirement of WHOGMP has always been for international purposes and not for domestic supplies as evident from the circular Mark PW 5/DF dated 01/03/2004. There has been total compliance to the Drugs and Cosmetics Act and Rules. The excise exemptions were also granted by the concerned ministry with respect to the supplies from Goa vide Ex. PW 10/DA. There is no evidence of short or substandard supplies under the contract and therefore, no wrongful loss has been caused under the contract. There is no evidence that by making supplies from Goa undue profits have resulted to M/s Nestor Pharmaceuticals Ltd.
20. The point that falls for determination is whether accused VS Bhat has misused his official position by accepting supplies from Goa unit of M/s Nestor Pharmaceuticals Ltd despite the fact that same was not WHO GMP compliant.
21. It is essential to understand the procedure whereby the contracts were awarded. It is evident that HLL has been RC SI8 2006 E 0007EOU.IV/CBI/New Delhi CBI vs. Vasant S. Bhat etc Page 24 of 45 nominated as procurement agency on behalf of Ministry of Health and Family Welfare, for pharmaceutical products under the RCH IV, V and VI projects. It is further evident from documents that accused VS Bhat has been nominated as team leader. The procedure has been deposed by PW 20 Mohd. Hussain Ansari, who has been Deputy Director in the Ministry of Health, Government of India. According to the statement of this witness, the bids were invited through advertisement and bidding process used to be handled by HLL. The bid evaluation reports along with recommendations used to be submitted to the SSM division of the ministry and thereafter tender purchase committee consisting of Joint Secretary/Addl. Secretary as head used to scrutinize the recommendations and then grant approval. Thereafter, letters used to be issued to procurement agency approving the recommendations for placement of contracts.
22. It is established on evidence that bids were evaluated by bid evaluation committee consisting of various officers of HLL. In the present case, the bids relating to RCH project for the years 2001, 2002, 2003 were evaluated and vide reports Ex. PW 8/A, Ex. P5, Ex. P7 and Ex. P1, recommendations in favour of M/s Nestor Pharmaceuticals Ltd were made for MEM and RC SI8 2006 E 0007EOU.IV/CBI/New Delhi CBI vs. Vasant S. Bhat etc Page 25 of 45 Paracetamol tablets. This exercise involved scrutiny of voluminous documents and consultations on various aspects. The members of bid evaluation committee possessed expertise in different fields and contributed to deliberations accordingly. So far as exercise of bid evaluations is concerned, it was done by specific committee involving various officials and experts of HLL. The recommendations were then approved at the level of ministry by SSM division and Tender purchase committee. It is clear that responsibility towards recommendations cannot be fixed on any individual. Accused VS Bhat has been one of the many officials although was named as team leader. His functions were broadly supervisory and decisions were not individually taken by him.
23. As per ITB (Instructions to Bidder), SectionIII, Clause 13.3 (c) for RCH 20012002 and Clause 7.1 (d) for RCH 2002 to 2004, [Ex. PW 15/A (colly)], which reads as follows: 13.3 (c) and 7.1 (d) The documentary evidence of the Bidder's qualifications to perform the Contract if its bid is accepted, shall establish to the Purchaser's satisfaction that the Bidder: "has received a satisfactory GMP inspection certificate, which should be valid on the date of the bid opening, in line with the WHO certification RC SI8 2006 E 0007EOU.IV/CBI/New Delhi CBI vs. Vasant S. Bhat etc Page 26 of 45 scheme on pharmaceuticals moving in International Commerce from the regulatory authority (RA) in the country of manufacture of the goods or has been certified by the competent authority of a member country of the Pharmaceuticals Inspection Convention (PIC), and has demonstrated compliance with the quality standards during the past two years prior to bid submission; In case the validity of the WHO GMP Certificate is upto the bid opening date, an undertaking shall also be submitted by the bidder that they have applied for renewal of WHO GMP Certificate at the time of submitting their bid."
and also on examination of the bid evaluation reports, it is clear that WHOGMP certificate was required for being successful for the project.
24. Coming to the testimony of prosecution witnesses, it is evident from the statements of PW 3 Vikas Talwar, PW 4 Pankaj, PW 7 Amit Sethi and PW 9 Alok Prakash Singh Kumar as well as the documents proved by these witnesses that under the contracts, supply of MEM and Paracetamol tablets were made from Goa unit of M/s Nestor Pharmaceuticals Ltd. It is also clear that approval for inspections as well as for sampling of consignment has been in the knowledge of accused VS Bhat as he has been counter signing the offer letters received from M/s Nestor Pharmaceuticals Ltd for the purpose. The sample drawing reports were also submitted to VS Bhat and he signed the same.
RC SI8 2006 E 0007EOU.IV/CBI/New Delhi CBI vs. Vasant S. Bhat etc Page 27 of 45It is not disputed and also stands established that Goa plant of M/s Nestor Pharmaceuticals Ltd was not having WHOGMP certificate with respect to MEM or Paracetamol tablets. It is clearly stated by PW10 Denis Moraes and PW5 R.Y. Arlekar that although application for WHO GMP was made but same was never granted in respect of tablets and was only granted with respect to capsules.
25. However, contrary evidence is also appearing on record since important witness from HLL PW7 Amit Sethi denied the prosecution suggestions during his examination that M/s Nestor Pharmaceutical Ltd has not adhered to the terms of contract with respect to supplies or that supply of drugs were required to be made only from WHO GMP complaint manufacturing unit. The witness specifically denied that this amounted to serious misconduct on the part of supplier or that it was duty of procurement agency i.e. HLL to ensure compliance of world bank conditions in their totality. PW 8 V.A. Sashidharan Nair, who has been the member of bid evaluation committee at the level of HLL deposed that bids were evaluated by various members of the committee and he signed the same on the basis of recommendations made by rest of the members. The witness also denied the suggestions that supplies from non complaint RC SI8 2006 E 0007EOU.IV/CBI/New Delhi CBI vs. Vasant S. Bhat etc Page 28 of 45 unit was to be taken as gross misconduct and cheating on the part of supplier as well as officials. PW 9 Alok Prakash, Supervisor with HLL asserted that during his tenure he did not came across any evidence of product failure on the part of M/s Nestor Pharmaceuticals Ltd. PW 11 Rengit Gopinathan also denied the suggestions that supplies made from Goa unit were incorrect or should not have been allowed. PW 12 Surendre Kumar Bijroi also denied that breach of guidelines amounted to serious misconduct on the part of supplier or failure of duty on the part of procurement agency. PW 15 Mrs. Arundhati Kandwal, Assistant Manager (Finance) with HLL have also not stated anything incriminating with respect to the supplies made from Goa unit.
26. PW 22 Dr. Satyendra Nath Pal, who has been at the top job of HLL, being Executive Director (Technical) has denied the prosecution suggestion that supplies were wrongly made from Goa unit by M/s Nestor Pharmaceuticals Ltd against the contracts.
27. The witnesses have also deposed in a categorical manner particularly PW23 R. Narayana Swamy, PW5 R.Y. Aerlekar, PW10 Denis Moraes that WHO GMP was required for RC SI8 2006 E 0007EOU.IV/CBI/New Delhi CBI vs. Vasant S. Bhat etc Page 29 of 45 international procurement/export purposes only. Circular relied upon by the defence Mark 5/DF issued by Drug Controller General also says that WHO GMP is required only for international commerce and not for domestic market although the date of issue is 01/03/2004 i.e. after the start of the projects.
28. Moreover, even if it is assumed that supplies were made from Goa unit in violation to the terms of bids and contracts, the question arises as to whether it amounts to offence of cheating punishable under section 420 IPC.
29. The offence of cheating as defined under section 415 IPC is as follows: Cheating:Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".
Explanation A dishonest concealment of facts is a deception within the meaning of this section.
RC SI8 2006 E 0007EOU.IV/CBI/New Delhi CBI vs. Vasant S. Bhat etc Page 30 of 4530. The essential ingredients to attract section 420 IPC are:
(i) cheating;
(ii) dishonest inducement to deliver property or to make, alter or destroy any valuable security or anything which is sealed or is capable of being converted into a valuable security;
(iii) mens rea of the accused at the time of making the inducement.
(iv) causing damage or harm to person or property.
31. It is inbuilt in section 415 IPC that there has to be dishonest intention from the very beginning, which is sine qua non to hold the accused guilty for commission of the said offence.
32. According to well settled legal position, breach of procedure without involving any fraud or deception cannot amount to cheating. In the case, Union of India vs J.S Khanna, 1972 CrLJ 849 (SC), where two military officers were charged with manipulations in placing supply orders with a firm, of RC SI8 2006 E 0007EOU.IV/CBI/New Delhi CBI vs. Vasant S. Bhat etc Page 31 of 45 obtaining supplies even before orders in relation to them were placed, and in some cases, even before issuing quotations inquiries as required by the relevant rules, and also that they paid exorbitant prices for those materials, that the quotations were opened contrary to the rules without keeping a second officer present, the procedure might not be in accord with the rules, but a breach of that procedure does not mean fraud or any other criminality. It was possible that the goods might have been required immediately in the emergency, which was then prevailing, and an officer might find it difficult if not impossible, to go through the routine which was possible and desirable in peace time. Spot inquiries and purchases following them, might have been considered expedient depending upon the degree of urgency with which particular spare parts were needed. No inference of fraud could, therefore, be drawn from the fact of spot inquiries.
33. Also, where there is no allegation of the complainants being put to wrongful loss, there cannot be any cheating. In the case, Subrata Saha vs State of Bihar, [(1990) 1 Crimes 8 (Pat)], the allegation was that the accused, an Asstt. Accounts Officer, Bokaro Steel Plant entered into a criminal conspiracy with others and allotted various items of steel RC SI8 2006 E 0007EOU.IV/CBI/New Delhi CBI vs. Vasant S. Bhat etc Page 32 of 45 materials to a nonexisting firm. It was further alleged that supply was made on the basis of fictitious Essentiality Certificate. There was no allegation that any wrongful loss was caused to the Bokaro Steel Plant or the petitioner had derived any benefit. There was also no evidence to show what price was prevalent at the time of occurrence in the open market and in what manner. In this perspective, the case under Section 420 IPC was quashed by the High Court.
34. Coming to the case in hand, there is no cogent evidence as to how far the conditions were observed for strict compliance as no official witness from HLL has categorically stated that such deviations are unusual or were allowed in this particular case only. There is no evidence that all terms of the bid conditions were followed in its absolute letter and spirit and even slight deviation would invite termination of contract or action against the bidder. The crucial witnesses of HLL have categorically denied that supplies from Goa were highly irregular or amounted to gross misconduct or failure of duty on the part of procurement agency. The witnesses have even disputed their statements recorded u/s 161 Cr. PC. This creates strong doubt about the manner of investigation conducted by the Investigating Officer.
RC SI8 2006 E 0007EOU.IV/CBI/New Delhi CBI vs. Vasant S. Bhat etc Page 33 of 4535. It is further important to consider the testimony of PW 5 R.Y. Arlekar according to which in the event of manufacturing unit complying good manufacturing practice, it is granted ScheduleM licence under the Drug and Cosmetic Act, 1940 and rules. There is no term WHOGMP under Drug and Cosmetics Act. The testimony of PW 9 Alok Prakash Singh further strengthens the stand of defence as he stated that sampling is done for the purpose of quantity and quality to be tested by the laboratory. The inspection note is released only after getting the positive report of laboratory and release of inspection note means that quality and quantity of pharmaceutical products has been up to the prescribed standard. The witness had visited both the plants / units of M/s Nestor Pharmaceuticals Ltd situated at Faridabad and Goa and he found Goa unit better in terms of manufacturing, technology and infrastructure.
36. In the case of M/s Rohit Drugs and Ors vs The State and Ors., AIR 2002 J & K 127, the question before the court was that whether petitioner should be allowed to participate in the tender process in the absence of WHO GMP certificate, when it was one of the condition of the tender. The RC SI8 2006 E 0007EOU.IV/CBI/New Delhi CBI vs. Vasant S. Bhat etc Page 34 of 45 Hon'ble Judge held that in the event of manufacturing unit having schedule M licence, it would be deemed to be confirming to all those conditions which are termed as Good Manufacturing Practice. The guidelines given by the World Health Organization are replica of the conditions as contained in schedule M and the licencee would be deemed to be adhering to the Good Manufacturing Practices as indicated in the Schedule M and further licencee need not to have any other certificate. It has also been held that there has been no statutory provision requiring the possession of a Good Manufacturing Practice certificate. Therefore, to say that a Good Manufacturing Practice (WHOGMP) certificate is sine qua non for a concern if it wants to participate in any exercise initiated by the State in the tender process would not be a correct way of looking at the matter.
37. Admittedly, the Goa unit of M/s Nestor Pharmaceuticals Ltd was granted ScheduleM certification by Drug Authority Goa in September 2001. It has also come in evidence of prosecution witnesses that there has been no product failure on the part of M/s Nestor Pharmaceuticals Ltd. PW 13 IO Ajeet Kumar Singh has also admitted that no complaints with respect to quality and quantity was received. In view of above evidence, it is clear that there has been no RC SI8 2006 E 0007EOU.IV/CBI/New Delhi CBI vs. Vasant S. Bhat etc Page 35 of 45 material deviation beyond the ambit of the contract particularly when there is a provision of assignment under the contract.
38. Although, in the present case bids contained documents of Faridabad unit, there has been no express or specific condition or undertaking that supplies would be made from Faridabad manufacturing unit exclusively.
39. The excise exemptions (Ex. PW 10/DA) were granted with the approval of Ministry of Health and Family Welfare which allowed M/s Nestor Pharmaceuticals Ltd to make supplies of MEM tablets under the contract from its Goa unit and the exemption certificates have been signed not only by VS Bhat but also by his Senior Chairman cum Managing Director of HLL and also by other concerned officers. In this way, the selective prosecution of VS Bhat is not acceptable for issuance of such certificates. It is also important to note that even at the level of ministry, no objection was raised while allowing such exemptions relating to the contracts. Supply orders Mark PW 11/A to PW 11/V have been addressed to M/s Nestor Pharmaceuticals Ltd, 24, Barakhamba Road, New Delhi without specifying the unit from where the supplies were to be made.
RC SI8 2006 E 0007EOU.IV/CBI/New Delhi CBI vs. Vasant S. Bhat etc Page 36 of 4540. The timely performance of such contracts is also an essential element to be complied with by the successful bidder so that project does not suffer. The public interest is involved in such projects. The basis purpose of the contracts has been served properly. Even there is a provision of assignment under the contracts with prior permission of the purchaser vide Section IV (General Conditions of Contract), clause 20 of Instructions to Bidders, [Ex. PW 15/A (colly)], as follows:
20. Assignment.
21.1 The Supplier shall not assign, in whole or in part, its obligations to perform under this Contract, except with the Purchaser's prior written consent.
41. M/s Nestor Pharmaceuticals has not assigned any responsibility under the contract but only made supplies from its different unit situated at Goa. In these circumstances, no criminality can be attached to this particularly in view of communication already sent to HLL as well as to Ministry of Health and Family Welfare about the sampling and excise exemptions with respect to Goa unit. It is further important to note that there is no evidence of short or substandard supplies showing any detriment to the project in question. The complaint Ex. PW 1/A, which is the basis of the present RC mentions that RC SI8 2006 E 0007EOU.IV/CBI/New Delhi CBI vs. Vasant S. Bhat etc Page 37 of 45 substandard quality pharmaceuticals were supplied by the firm as well as there was short supply of the drugs but PW 1 complainant has failed to state about the complaints so received with respect to drugs. No documentary or oral evidence is brought on record to substantiate the allegations of substandard and short supply. It is also admitted by PW 13 Investigating Officer that he did not come across any complaint about the supplies made under the contracts. It is, therefore, clear that there has been no complaint about quantity or quality of the drugs which have been supplied from Goa unit and therefore, the ingredient of causing damage or harm is not fulfilled to complete the offence of cheating. In the circumstances, dishonest intention/mens rea is not discernible from the facts of the present case.
42. The second charge against accused M/s Nestor Pharmaceuticals Ltd (A2) and S.K. Dua (A4) has been that in pursuance of the conspiracy, S.K. Dua, the then Deputy State Drug Controller, Haryana, issued COPP No. 233/01 dated 09/11/2001 relating to MEM tablets (D10 page 69) and qualification form dated 09/11/2001 (D10 page 65) unauthorizedly and same were used by M/s Nestor Pharmaceuticals Ltd in the bid submissions.
RC SI8 2006 E 0007EOU.IV/CBI/New Delhi CBI vs. Vasant S. Bhat etc Page 38 of 4543. Arguing on behalf of S.K Dua, ld counsel has submitted that witnesses have not categorically stated that complete office record has been brought to establish non issuance of COPP no. 233/01 dated 09/11/2001 and also qualification certificate of the same date. It is admitted case of prosecution that on 09/11/2001 itself WHO GMP certificate was issued by accused S.K Dua vide Ex PW19/F and if it is true, there was no reason or occasion for S.K Dua to unauthorizedly issue COPP as it could also have been issued by following due rules and procedures. Accused S.K Dua got retired and therefore he had no control over the records of the office. None of the official witnesses have owned their statements allegedly recorded u/s 161 Cr.P.C despite that they have been confronted by the prosecutor. The witnesses have also deposed the manner in which the record was kept in the office and it is clear that there was every possibility that record was lost.
44. On this issue, evidence of PW 18 Pehlad Singh is important. He has been working as Assistant in the office of State Drug Controller, Haryana but the witness controverted the version of prosecution and failed to support the claim of the prosecution. PW 18 was crossexamined by Ld. Senior PP for RC SI8 2006 E 0007EOU.IV/CBI/New Delhi CBI vs. Vasant S. Bhat etc Page 39 of 45 CBI, during which he was confronted with his statement recorded u/s 161 Cr. PC but the witness remained firm on his testimony and did not clearly state as to whether COPP No. 233/01 dated 09/11/2001 was issued unauthorizedly or the same bears the signatures of accused S.K. Dua. PW18 identified signatures of S.K. Dua on forwarding letter dated 09/11/2001 Ex. PW 18/A and also on COPPs Ex. PW 18/B (colly) bearing Nos. 228/01 to 232/01. The official file was also brought by the witness and it is admitted that while making application, the pharmaceutical firm used to enclose the list in respect of which the certificates were applied. It is further admitted that list is not available in the file along with the letter of M/s Nestor Pharmaceuticals Ltd. On being specifically questioned as to whether M/s Nestor Pharmaceuticals Ltd had applied for COPP and Capacity and Qualification Certificate in respect of MEM tablets vide application dated 07/11/2001, the witness answered that he is not able to find out these facts on checking the official records. He specifically denied the suggestion that alleged certificate (COPP) bearing no. 233/01 bears signatures of S.K. Dua. During crossexamination on behalf of defence, PW 18 admitted that applications of M/s Nestor Pharmaceuticals Ltd dated 06/11/2001 and 07/11/2001 were not handed over to RC SI8 2006 E 0007EOU.IV/CBI/New Delhi CBI vs. Vasant S. Bhat etc Page 40 of 45 CBI, although, same were available in the original record Ex. PW 18/DA (colly). He further admitted that records were not properly arranged and no register was separately maintained with respect to issuance of certificates. The witness even could not tell as to whether the record was kept year wise and even no computerization had taken place during that time. He admitted that he does not possess complete knowledge of entire record of issuance of certificates and there is possibility that some other record is available.
45. PW 19 is another important witness from the office of State Drug Controller and although, he has identified the signatures of S.K. Dua on the official documents (D25) but failed to identify the signatures of S.K. Dua on COPP No. 233/01 in a definite manner, even though, the witness admitted that no such certificate is available in the record. The witness was cross examined on behalf of prosecution, during which he denied the suggestion that COPP No. 233/01 was issued unauthorizedly by S.K. Dua. The witness even went to the extent of saying that certificates must have been issued in some other file. New file used to be opened if the main file was in correspondence. The witness denied having got recorded statement u/s 161 Cr. PC. He admitted that due to acute shortage of space, records were RC SI8 2006 E 0007EOU.IV/CBI/New Delhi CBI vs. Vasant S. Bhat etc Page 41 of 45 kept in open corridor and there was every possibility of records being damaged during the shifting.
46. On examining the above depositions as well as the record produced D25 and Ex. PW 18/DA, I am of the opinion that prosecution has failed to bring strong and convincing evidence to establish that COPP bearing no. 233/01 and qualification cum performance certificate, both dated 09/11/2001 were not officially issued by State Drug Controller, Haryana.
47. To prove the criminal charge, character of evidence must be flawless, leaving no scope of any other inference or interpretation. Firstly, the official witnesses have not identified the signatures of S.K. Dua on the alleged certificates and secondly the documents were not sent for scientific examination to reach to the conclusion that S.K. Dua is the person who signed the documents. It is evident on perusal of Ex. PW 18/DA (colly) and also the official file D25 that M/s Nestor Pharmaceuticals Ltd applied for various COPPs and qualification certificates vide applications dated 06/11/2001 and 07/11/2001. The list of requisite items in respect of which certificates were applied is annexed but same was not seized by RC SI8 2006 E 0007EOU.IV/CBI/New Delhi CBI vs. Vasant S. Bhat etc Page 42 of 45 the IO during the investigation. No list is available with the application dated 07/11/2001. The witnesses have admitted that records were not properly arranged and no separate register was maintained with respect to issuance of certificates and disowned their statements u/s 161 Cr. PC. All this creates doubt about the genuineness of the claim of the prosecution that COPP bearing no. 233/01 and the qualification certificate dated 09/11/2001 were unauthorizedly issued.
48. It is admitted case of prosecution that COPPs No. 228/01 to 232/01 Ex. PW 18/B and WHOGMP certificate Ex. PW 19/F were issued on 09/11/2001 on the application of M/s Nestor Pharmaceuticals Ltd properly. If these certificates were issued in a proper manner, there was no occasion for State Drug Controller to issue one certificate unauthorizedly. Applications (Ex. PW 18/DA) shows that firm has been applying for requisite certificates specifically mentioning about the tender floated by HLL in order to enable it to participate in the tender and on the basis of the application, certificates were issued. There is no material to suggest that COPP with respect to MEM tablets was applied for in 2001 or that it was declined. Witnesses have not been confident in their depositions rather admitted that records were not arranged properly and there might be a situation that RC SI8 2006 E 0007EOU.IV/CBI/New Delhi CBI vs. Vasant S. Bhat etc Page 43 of 45 vide some other file certificates were issued. Despite cross examination, prosecution has failed to elicit anything favourable to establish that the certificates have been forged and fabricated. In the face of such inconsistent evidence, I conclude that prosecution has failed to prove the charge of issuance of certificates unauthorizedly on the part of S.K. Dua (A4).
49. In the light of above findings, I hold that prosecution has failed to prove misuse of official position by accused VS Bhat or accused S.K. Dua or submission of unauthorizedly issued COPP and qualification certificate by M/s Nestor Pharmaceuticals Ltd for getting the contracts or committing the offence of cheating by making supplies from its Goa unit. Also there is no evidence indicating conspiracy between accused VS Bhat and M/s Nestor Pharmaceuticals Ltd or between S.K. Dua and M/s Nestor Pharmaceuticals Ltd for any illegal purpose.
50. The case of prosecution fails on all counts. Accordingly, all the accused persons are acquitted of all the charges. Their original bail bonds are cancelled and previous sureties are discharged.
RC SI8 2006 E 0007EOU.IV/CBI/New Delhi CBI vs. Vasant S. Bhat etc Page 44 of 4551. Ahlmad is directed to page and bookmark the file so as to enable digitization of the entire record.
52. File be consigned to record room.
(Anju Bajaj Chandna) Announced in open court Special Judge (PCAct)(CBI)6, today i.e., 10/03/2017 Patiala House Court, New Delhi RC SI8 2006 E 0007EOU.IV/CBI/New Delhi CBI vs. Vasant S. Bhat etc Page 45 of 45