Jharkhand High Court
Madhukant Pathak vs The State Of Jharkhand Through ... on 7 July, 2017
Author: Anant Bijay Singh
Bench: Anant Bijay Singh
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
A.B.A. No. 4803 of 2016
Madhukant Pathak ...... Petitioner
Versus
The State of Jharkhand through Vigilance (ACB) ...... Opposite Party
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CORAM: HON'BLE MR. JUSTICE ANANT BIJAY SINGH
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For the Petitioner : Mr. R.S. Mazumdar, Sr. Advocate
For the A.C.B. : Mr. T.N. Verma, S.C.
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C.A.V. On 01/07/2017 Pronounced on 07/07/2017
Heard learned counsel for the petitioner and learned counsel for the
A.C.B.
The petitioner is apprehending his arrest in connection with the case
registered under Sections 420, 120B, 467, 468, 471, 109, 409, 406 of the
Indian Penal Code and Section 13(2) read with Section 13(i)(d) of the
Prevention of Corruption Act pending in the court of learned Special Judge,
Vigilance (ACB) at Ranchi. The petitioner is the treasurer of national games
association committee.
The prosecution case is based upon the written report of the informant
Shri Bholanath Singh stating therein that in 34 th National Games, the
accused persons including the petitioner by misusing their official positions
have committed several acts of misappropriation and embezzlement of public
fund by resorting to corrupt practices in connivance and conspiracy with
several other. The allegations in nutshell are that without inviting the tender,
work order was alloted and in lieu of that, no security was taken.
The orders were not given to the lowest bidders rather they were
placed with the higher bidders and on the basis of single tender, work was
alloted which violates the financial rules.
The sport materials were purchased in the higher price despite the fact
that it was available in lower price.
It is further alleged that excess payments were made towards supply of
materials. Furthermore, some of the works order have not been approved by
the competent authority and in some cases, excess payments in the shape of
mobilization advance have been made to the suppliers, so far as Madhukant
Pathak Treasurer of the State Olympic Association.
The State Government had alloted huge fund for the purpose of
construction of infrastructure and procurement of equipment for the various
events in the national games and also for hosting the national games.
The accused No. 1 to 4 by misusing their official position have
committed several acts of misappropriation and embezzlement of public fund
by resorting to corrupt practices in connivance and conspiracy with several
others.
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The instances of such corrupt practices and embezzlement of public
fund is mentioned as under:-
(i) Rs. 11 Cr. Rupees from the state coffers has been spent on erecting
high mast light facilities in the Birsa Munda Astroturf Hockey
Stadium at Morabadi, Ranchi and the work was given to Bajaj
Electricals on nominations without inviting tenders in utter violation
of financial and tender rules.
(ii) More than Rupees one crore has been shown to have been spent
in furnishing of the so called V.V.I.P launge and guest house though
neither any tender was called for nor any utilization certificate in on
record. This apart about a crore of ruppees have been withdrawn by
the accused persons showing reimbursement of domestic and
international air fares though there is no justification of such
journeys' nor any formal approval or permission was granted for such
journey.
(iii) The squash Court at Dhanbad which has also been executed
without inviting any tender, one again on the recommendation of the
NGOC and the vendor in case is not a company but a sport
association. It is perhaps the only instance where a sports facility has
been created by a sports association acting as a vendor, involving the
expenditure of Rs. 1.60 Crores of public money.
(iv) As many to hundred dozens of Dunlop tennis balls were
purchased at Rs. 990 a dozen when current price is only Rs. 550 a
dozen for tournament which will have only eight teams playing three
set matches and probably no more than 100 players in all while the
whole of Wimbledon men's singles with 128 players and as many as
125 five set matches consumes no more than 30 dozens. Besides,
while the shelf lift of tennis balls is no more than six months the 200
dozens procured above halve already been in store for a period longer
than it shelf life.
(v) Where only eight states can send participants in the games and for
track and field events, as many as more than 200 javelins were
purchased for the outstanding sum of almost above 50 lakhs at
hitherto unheard of prices. The petitioners are in possession of the
rate list of the same quality and brand of Javelin as purchased for the
national games and a comparison of the same with the amount paid
by the Association as per vouchers submitted to it would shake the
conscience of any self respecting person. Similar is the case with the
purchase of whistles bought for the national games and at prices
many times over the price at which the same whistle is available in
sports shops in Ranchi itself, markers for the throwing events which
is nothing else but the common newar, table tennis tables and balls.
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While 400 meters of Newar has been bought for the games @ Rs. 98
per metre, the same quality of Newar is available in stores at Ranchi
at Rs. 75 per Kg which easily contains more than 10 meters of newar.
Fox 40 whistles bought for the games at Rs.450 per piece is available
in sports shops in Ranchi for Rs. 95 and the same supplier which has
supplied equipments for the games in ready to supply as per
quotation given by it the same whistle for only Rs. 80.00. The same
Table Tennis of STAG company purchased at Rs. 31,500 per table for
the games has been quoted at Rs. 27,500/- by the same STAG
company as per quotation sent by e-mail on a request made on the
internet by the petitioners.
(vi) Where the tender committee found it suitable to purchase one set
of football goal posts for Rs. 68,000/- and those of hockey for Rs.
88,000/- a substitute indicator was found suitable for purchase at the
exorbitant price of Rs. 48.000 and set of high jump uprights for Rs.
56,000.
(vii) Where only a hundred hurdles would have sufficed a ludicrous
300 number of hurdles were purchased whereas 200 hurdles
purchased @ 2995 and 100 hurdles were purchased @ 3950 per piece
while each hurdle should have cost no more than a few hundred
rupees.
(viii) Where a false start indicator was 'procured' at a ridiculous price
of Rs. 32,000/-, eighty rupee whistles were bought for Rs. 450 a piece.
(ix) The cruel joke foisted by this tender committee is probably best
illustrated by the price at which a tachometer, which is nothing but a
measuring tape, was bought for Rs. 39000/-
(x) Where a Nivea football and Nivea basketball are each available for
Rs. 350 and Rs. 400 respectively, the tender committee thought it
appropriate to but them respectively at Rs. 925 and Rs. 1295 a piece.
(xi) For the event of lawn bowling, the equipments were purchased
directly at machinery rates the cost about Rs. 43 lacs, without any
tender. The resolution to such effect was passed by the Tender
Committee on 16.10.2008.
(xii) Another glaring example of the corrupt practice attached by the
accused persons shall be apparent from the fact that though all the
accused persons were fully aware that they are not a position to
organize the national game in the scheduled period November, 2009
for which they had already agreed to pay penalty of Rs. One crore to
Indian Olympic Association had dishonestly their personal gain and to
bring wrong full gain to various parties had realized Rs.
17,91,08288/- in the firm of mobilization advance.
(xiii) The accused persons in conspiracy with M/s Wiz Craft had made
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a mobilization advance at Rs. 2.59 corore and allowed the same to be
forfeited by M/s wiz craft.
(xiv) Though the responsibility of erecting video screen were upon the
contractor who had been introduced with the work of construction of
the stadium and the though the video screen were erected by the
contractor in the stadium, the accused persons in conspiracy with
each other in order to extent undue profit to M/s Omega Company
had in addition to the video screen which were already in supported
the stadium had purchased to more video screen for rates 10 crore
which was wholly unwarranted.
(xv) For the event of gymnastics, equipments were purchased in
hypothetical rates and that too in triplicate. Excess equipments have
been purchased only to extend wrongful gain to private suppliers.
(xvi) Another glaring example of the prevailing corruption in NGOC
and embezzlement of public money would be apparent from the bare
perusal of the fact that the electronic score board of absen optotech
was purchased at public rates for different event during the same
period and for same venue. For hand ball and Kabbadi, Khokho and
Net ball the electronic score board were purchased at rate Rs. 4 lacs
50 thousand whereas for the event of Tackwondo the same electronic
score board of the same make and specification has been purchased
@ Rs. 6 lacs 50 thousand from the same supplier.
(xvii) A payment of Rs. 42.54 lacs for construction of road at
Dhanbad has been made without taking any utilization certificate.
Huge amount of money has been soon fact two persons claimed to
have been employed on contractual basis without any attendance
certificate. All such payment has been shown to have been made to
fictitious person.
(xviii) Lacs of rupees have been withdrawn from the account of
NGOC through bearer cheques in the name of one S. Tirkey who is
just but a staff appointed by NGOC on a contractual basis on a
meager salary.
(xix) Rs. 1,79,11,530/- has been withdrawn as loan by the accused
no.4 who has appropriated the said money for his personal use. The
said loan has been shown in the audited account of NGOC for the
year 2008-09. This amount has never been returned. There is no
provisions for taking loan for personal purposes from the
government fund.
(xx) The bank guarantee furnished by the suppliers were allowed to
be lapsed so as the relieve the suppliers of their liability.
This besides, the accused nos. 2 to 3 (petitioner) have also defalcated
and misappropriated the grants which they have received on behalf of
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Jharkhand Olympic Association from the State Government. Some of the
instances of such defalcation as stated herein under:-
(a) Rs. 5 lakhs given to the association as a grant by the State
Government in the financial year 2002-03 in neither reflected in the
receipt and payment statement pertaining to the said year or even
the later years.
(b) Similarly, Rs.1 lakhs plus Rs. 3.65 lakhs given as grant to the
association by the State Government in the financial year 2004-05 is
not reflected in any of the audit reports.
(c) While Rs.10 lakhs given by the State Government as grant for the
preparation of the national games have been shown under the receipt
column of the National Games Account of the Association, Rs, 100,93
have been transferred to the regular account of the Association only
to be misappropriated.
(d) Under the head expenditure incurred in organizing the AGM of
the IOA on the basis that tow AGM's were held in the years 2006-07
an amount of Rs.11,30,272 and Rs.11,83,563 were shown as
expenditures incurred. However, as is manifest from the statement of
Dr. Lalit Kumar Bhanot, the Joint Secretary of the IOA that only one
AGM of the IOA was held in Jharkhand in the year 2005 which is duly
recorded in the investigation report of the DSP Ranchi in Lalpur
P.S.Case No.139 of 2009. Thus a sum of over Rs.11 lakhs was
defalcated and misappropriated by the aforesaid fraud by showing
two AGM's of the IOA having been held in Jharkhand.
(e) A perusal of bank accounts would reveal that contrary to mandate
of rule 14 permitting only one bank account, several bank accounts
were conveniently opened with the State Bank of India, Main Branch
where accused no.3 is employed to facilitate withdrawals of huge
amounts in cash by JOA. It is stated that the perusal of the entires
relating to the period 1.4.2007 to 31.3.2009 of Account No.
11049002841 shows withdrawal of huge amounts in cash including
at times huge sums like Rs. Four lakhs at one go which is against
the financial empowerment under the Rules and Regulations
conferred on accuse no. 2 to 3 put together. It is stated that the
booklet form of the rules and regulations and the version thereof
posted on the website, already referred to hereinabove and now put
out of circulation, were designed to facilitate such defalcation of
funds. It is manifest from the said statement pertaining to the
financial year 2007-08 that there are no entries attributable to
subscription fees/membership fees payable by the affiliated units.
The same corroborates the assertion made by the petitioners that to
achieve their evil designs the payment of subscription fees were
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encouraged to be made in cash so that as per convenience, chosen
affiliated units could be declared as defaulters and debarred from
participating in the AGM's in which elections were to be held.
(f) A mere perusal of the Audit statement for the financial year 2004-
05 would clearly show that they were ready on 28.04.2005 itself.
However, in order to conceal the large scale embezzlement of
government grants a false statement was deliberately made by
accuse no. 3 in course of the AGM held on 30.04.2005 i.e. only two
days thereafter that the audited statement could not be prepared on
account of the non appointment of the auditors and would be
circulated to the members within a month.
In such circumstances the informant who is renowned sportsman and
also the Secretary General of the Jharkahnd Wrestling Association had filed
a public litigation before the Hon'ble Jharkhand High Court wherein the
Hon'ble Jharkhand High Court being W.P. (PIL) No. 4597 of 09, in which on
being prima facie satisfied with respect to the substance in the allegation,
the Hon'ble Court by an order dated 08.10.2009 directed the State
Government to file a counter affidavit and issued notice to the accused nos.
1 to 3 (petitioner). Pursuant to the said order dated 08.10.2009 the State
Government had requested the Accountant General for making a special
audit of the financial transactions of the national game organizing
committee and pursuant thereto an audit was conducted. Though all
the records was deliberately not made available to the audit team but in
spite thereof from the files and records available, the audit team could
detect mass scale financial irregularities and defalcation by resorting to
corrupt practices. The gist of such financial irregularities detected by the
audit team is mentioned here under:-
I. Purchase of sports equipments from other than the lowest
tendered- Loss of Rs. 1099.54 lacs and extra expenditure of Rs.
73.55 lacs due to purchase of sports equipment in excess of the
requirement.
II. Failure to renew bank guarantee of Rs. 604.72 lacs- Audit
Scrutiny Report shows that the NGOC officials have deliberately
allowed the bank guarantee of Rs. 604.72 lacs to lapse. Thus, bank
guarantees were furnished by way of security deposit.
III. Loss of Rs. 280.91 lacs due to direct allotment of catering works.
IV. (A) Loss of Government money of Rs.183.47 lacs by direct
allotment of work to other than the lower bidder.
(B) Loss of Rs.173.03 lacs due to payment of mobilization advance
without proper bank guarantee.
V. Extra expenditure of Rs.45.35 lacs due to non-placing of orders to
take different bidders.
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VI. Irregularities in tender process and undue advantage to the
contractor, causing loss of Rs.268.20 lacs.
VII. Excess payment of Rs.347.33 lacs to a private party of single
tender basis without undertaking in a market in a market survey.
VIII. Excess payment of Rs.43.41 lacs towards supply.
IX. Excess amount of Rs. 62.05 lacs in the shape of mobilization
advance.
X. Undue benefit to the bidders by paying mobilization advance loss
of interest of Rs. 108.40 lacs.
XI. Irregular payment of Rs. 110.00 lacs vide two cheques dated
15.12.2008of Rs. 50.00 lacs and 08.01.2009 of Rs. 60.00 lacs to M/s Zyrex Enterprises, Mumbai. The said company was awarded a work relating to preparation of two squash quotes at Dhanbad without any tender or agreement nor any approval was taken from any competent authority before issuing the work order. XII. Loss of government money Rs.47.21 lacs due to irregularities in the tender process.
XIII. Non-furnishing of security deposit of Rs.39.40 lacs by M/s ICATACH Communication India Ltd.
XIV. Excess payment of Rs.26.50 crores.
XV. Undue favour to the contractor by awarding work order of Rs.128.07 lacs on nomination basis, causing loss of Rs.7.84 lacs to the government.
XVI. Non-submission of security deposit of Rs.3.14 lacs by M/s Amitco Khel Centre.
XVII. Excess payment of mobilization advance of Rs.3.09 lacs. XVIII. Irregular payment of Rs.11.08 lacs.
XIX. (A) Non-adjustment of advance of Rs.183.36 lacs. (B) Unauthorized/irregular payment of Rs.76.00 lacs XX. Irregular expenditures of Rs.74.22 lacs.
XXI. (a) Irregular payment of Rs.50.00 lacs
(b) Utilization certificate wanting for Rs.42.54 lacs. XXII. Non-issuance of money receipt of Rs.98000/- and Rs.34.00 lacs, The perusal of the rates submitted by Shiv Naresh and Chadda would show that the rate submitted by M/s Chadda is almost double the rate submitted by M/s Shiv Naresh, hence this case has been lodged.
Submission of the petitioner Learned counsel for the petitioner has submitted that A.C.B has submitted final form and petitioner has cooperated in the investigation and whenever was directed to appear before A.C.B he has appeared before him and he was not arrested and there is no grievance of A.C.B he is not 8 cooperated in the investigation and petitioner is the treasurer of National Games Association Committe.
It is further submitted that it is alleged in the charge sheet that the bank guarantee furnished by the Chaddha Sport was lapsed in spite of that, it has not been renewed. Further with respect to the supply of some goods, excess payments were made to the Chaddha Sports. It is pertinent to mention herein that when the bank guarantee was lapsed, at that relevant time, the entire files and documents related to National Games were in the custody of the then Director Sports at his office and not with the petitioner. And when the files were received at NGOC the organizing Secretary intimated the parties for further renewal of their bank guarantee upon which some of them have renewed their bank guarantee and rest of them have demanded the outstanding payment for renewal of their bank guarantee.
It is also relevant to mention here that with respect to the excess payments made to Chaddha Sports, when it came to the knowledge of the petitioner, he immediately made a demand from Chadda Sports & on demand Chadda Sport asked him to adjust it from the outstanding amount.
It is also alleged that payments were made to Chadda Sports without deducting the keep back amount. It is also stated that the investigation reveals that the petitioner had been made as Treasurer of several sub committees such as Executive Board, Core Committee etc. It is pertinent to mention herein that the petitioner being the Treasurer of the N.G.O.C was made the member in several sub committees and there was no such post of Treasurer in Sub Committee. It is also stated that in the charge sheet that without inviting tender, the work order was alloted to the Computer Maintenance Corporation for I.T. And Accreditation Services. It is further alleged that without taking keep back amount, payment was made to C.M.C. It is pertinent to mention here that the State of Jharkhand has invited the tender several times and as because the Computer Maintenance Corporation was the single bidder, work was alloted to him and it was duly approved by the Executive Board at a meeting held on 21.11.2008, headed by the then Hon'ble Chief Minister as the Chairman of Executive Board. No payment amounting to Rs. 1,10,11,875 has been made to C.M.C. It is further alleged in the charge sheet that in respect of supply of medicines, M/s Savitri Pharma was awarded the work and huge amount of the medicines had been expired before the National Games and the expired medicines were returned back to M/s Savitri Pharma and due to that government has suffered loss of huge amount. With regard to that, petitioner states that although it is not the duty of the petitioner even then the petitioner intimated to M/s Savitri Pharma vide letter dated 26.02.2010 to replace the expired medicines whereupon they denied to do so and requested 9 to make the balance payment.
It is also submitted that in the charge sheet that the supplier M/s Pravin Brothers was paid 30% mobilization advance instead of 20% mobilization advance.
In this regard, petitioner states that on 21.11.2008 the Executive Board, headed by the then, Hon'ble Chief Minister unanimously decided to give 30% mobilization advance to the suppliers and in compliance of the same, payments were made. Hence petitioner had no role in the decision. It is submitted that the investigation reveals that with regard to the house keeping and allied activities after consultation with the petitioner and General Secretary, the draft of tender was prepared and the tender draft does not bears the signature of any of the office bearers. In this regard, the petitioner states that the tender was drafted and floated by the director Sports as per the Memorandum of NGOC. It is further alleged in the charge sheet that for the house keeping services the lowest bidder was not given the work order rather it was placed with the highest bidder. In this regard, the petitioner states that it was alloted to the lowest bidder as per the decision of the Tender Committee. It is further alleged that on the basis of presentation, evaluation of tender is against the C.V.C guidelines. In this regard, the petitioner states that tender was drafted and floated by the Government of Jharkhand through Director Sports and the petitioner being the member of tender committee was bound to follow the conditions laid down under the tender document.
It is further submitted that in the charge sheet that after termination of the work order granted to the M/s Wiz Craft International, payment of mobilization advance was not taken back.
In this regard, the petitioner states that the N.G.OC. Had issued several letters as well as reminders to the said company for the refund of mobilization advance and it was blacklisted also and the Government of Jharkhand was advised to take appropriate legal action against him as the N.G.O.C did not have any legal cell. Moreover, M/s Wiz Craft International was given work on the basis of its participation in the tender as it was a renowned company. However, on account of postponement of national games, M/s Wiz Craft International had refused to carry out the work on extended dates and the advance amount was forfeited by him despite several negotiations and thereafter a fresh tender was invited wherein M/s Cineyug was awarded the work.
It is further stated in the charge sheet that with regard to the transport services, on the basis of single tender, Surendrra Tourist and Transport Services was awarded the work and before fixing the rate, N.G.OC, have not procured the rate chart from the Jharkhand Tourism Development Corporation.
10In this regard, the petitioner states that the Director Sports in his note sheet to the Secretary Sports had written that the Deputy Commissioner, Jamshedpur & Dhanbad had shown their inability to provide the Transport services and has suggested to procure it from outside. Furthermore, the work order was alloted on the basis of tender.
It is pertinent to mention herein that from perusal of note-sheet it would be evident that Director Sports has made a recommendation to procure the transport services through tender. It is not the duty of petitioner to persuade JTDC to take part in Tender.
It is further stated that in the charge sheet that the advance amounts paid to Surendra Tourist and Transport Services had not been taken back. In this regard, petitioner states that he being a Treasurer has made a proposal for initiating a legal action against them though he was not duty bound to do so. It is stated in the charge sheet that for the Catering Services, the highest bidder was given the work but it is pertinent to mention herein that the highest bidder i.e. Gazal Caterer has been given the catering service as it is having good services in various National Games and the lowest bidder i.e. Catering Care was a low budget catering service.
It is also relevant to point out here that huge amount payable to Gazal Caterer is still pending.
It is further submitted that in the charge sheet that even after the knowledge of postponement of the national games, payments were made to the Creative International for sanitation work but it is relevant to mention here that the payment was made to him in lieu of E.M.D of Rs. 3.00 lakh but subsequently it was refunded by him on the request of the petitioner as the Chartered Accountant pointed out to get it recovered.
It is further stated that in the charge sheet that for the work of repair and decoration of V.V.I.P Lounge and Guest House, without following the tender process, one company, namely, M/s Innovation has been awarded the work which is contrary to the financial rules.
In this regard, the petitioner states that the work order granted to M/s Innovation was initiated and recommended by the Director, Sports and it was duly approved by the then Sport Minister and the petitioner being the Treasurer has not played any role in the entire process. It is further submitted in the charge sheet that sports materials were purchased at higher price and that too in huge quantity. In this regard petitioner submits that the National Games is being regulated and controlled by the Indian Olympic Association and upon whose guidelines N.G.O.C has acted as per the National Games Manual of Indian Olympic Association and Host City Contract. The fact is that the list of sport materials and equipments along with specification such as brand name and 11 quantity were provided to the Secretary Sports, Government of Jharkhand by the Director, Indian Olympic Association which was duly approved by the concerned Minister. On the advice of the Secretary Sports tender was floated by the Director, Sports. Moreover, all the equipments and materials were purchased by the process of tender and it was duly approved by the competent Authority.
It is submitted in the charge sheet that without inviting the tender, lawn balls were purchased by one company and excess payments were made to him but it is pertinent to mention herein that since there is no suppliers of lawn bowls in India, no bidder came forward and, therefore, it was decided by the Tender Committee to procure it directly from the manufacturer. It is further stated that it is alleged in the charge sheet that Volley balls, which were purchased, were found to be duplicate/below standard. In this regard, it is relevant to mention here due to below standard materials, further payment was stopped by the Executive Board. It is further alleged in the charge sheet that without inviting the tender on the basis of nomination, ignoring the financial rules, the work order was alloted for installation of High Mast Light in the football stadium. In this regard, the petitioner states that the work relating to installation of High Mast Light was done by the Sports Department, Government of Jharkhand and the petitioner & N.G.O.C had played no role in respect of the said work. It is further submitted in the charge sheet that for opening and closing ceremony, OMEGA Company was awarded the work for installation of Score Board despite the fact that score Board of ABSEN OPTECH was available at a lower price.
In this regard, the petitioner stated that the work was awarded to the said company by the Tender Committee wherein Organizing Secretary-1 brought a list from President, IOA to procure Omega Equipment.
It is further submitted that in the charge sheet that excess sports materials were purchased without any requirement. In this regard, the petitioner states that the purchase of sport equipment were made by the Government of Jharkhand as per the guidelines of the Indian Olympic Association and they were retained by themselves in their custody which is still lying with them.
It is also pertinent to mention herein that in the meeting held under the Chairmanship of Chief Secretary, it was advised by him to purchase the sports equipments as per approved specification of International and National Sports Federations and it was also advised not to compromise with the quality of goods. It is further submitted that in the charge sheet that the petitioner has made a request letter for supply of the materials relating to Athletics Warm up track. In this regard, the petitioner states that the petitioner being a International Technical Official of athletics has 12 made a request which was duly approved by the competent authority.
Learned counsel for the petitioner further submitted that other co- accused namely, Sayed Matloob Hashmi and Prakash Chandra Mishra have been granted regular bail by a co-ordinate Bench of this Court in B.A. No. 1305 of 2015 with B.A. No. 2405 of 2015 vide order dated 21.05.2015.
Learned counsel for the petitioner while referring to the order passed in B.A. No. 1305 of 2015 with B.A. No. 2405 of 2015 has submitted the court has held as follows.:-
Having heard learned counsels for both sides, I find that though there is allegation of putting to State Exchequer to the wrongful loss of Rs. 28,39,09,000/- due to the alleged financial irregularities committed by the petitioners, but the petitioners case is that whatever expenses were made they were made only upon the approval of the Executive Board of the National Games Organizing Committee, constituted under the guidelines of the Indian Olympic Association. I also find from the allegations leveled against the petitioners that though there is allegation of placing the orders with the higher bidders ignoring the lowest bidder, but in most of the cases there is no finding by the vigilance that the material supplied or the services provided were not worth the price paid.
In my considered view, in organizing the National Games, the prestige of the State was at stake and the time was also running out, and in such situation there may be valid reasons for not strictly adhering to the financial norms, for which the petitioners alone cannot be held responsible, as the decision were taken by the Executive Board of the National Games Organising Committee. The quality of the materials purchased or the quality of the services provided had to be given paramount consideration in such event and one cannot expect that the orders shall be placed to the lowest bidders only. In order to make out the criminal offences, there has to be the finding that the quality of the materials/services of the lowest bidders were exactly the same, which were procured by paying the higher price, which finding is not there in most of the cases discussed in the memo of evidence. Though in some cases it was found, such as in the case of supply of volleyballs that they were duplicate and sub-standard, but the case of the petitioners is that no payment was made to the supplier and there is no denial to this fact. Similarly, in the matter of construction of squash courts, perhaps the company to which the order was placed was the only right choice, being perhaps the only company having the required expertise. Similarly, though it is alleged that the ambulances were purchased at almost double the price than they were purchased in the National Games held in Assam, but there is nothing in the record to show that the ambulance purchased in the National Games in Jharkhand were having the same medical and other facilities, as in those purchased during the National Games held at Assam, or they were actually of the higher standard or not. It is not the case of the State Vigilance that the materials purchased paying high prices, were not worth the price paid for them, or that the sports items purchased were below the standard of Olympic games. Last but not the least, there may be allegation of not strictly following the financial rules, but there is no allegation against the petitioners that there was any personal wrongful gain to them in the entire transaction. This apart, the investigation of the case is complete and the charge-sheet has already been submitted, but the 13 cognizance has not yet been taken against the petitioners.
Learned counsel for the petitioner further relied the judgment of the Hon'ble Supreme Court in the case of State of Madhya Pradesh Vrs. Sheetla Sahai and Ors. reported in (2009) 8 SCC 617 which reads as follows:-
E. Penal Code, 1860- S. 120-A-Criminal conspiracy- When becomes actionable-proof of-Held, criminal thoughts must be put into action in the form of concrete agreement-Offences, held further, can be proved also through circumstantial evidence- In the instant case where upon consideration of entire material respondents had rendered their independent opinions and made recommendations, held, there was neither criminal misconduct nor was there may material to establish that criminal conspiracy had been hatched-Prevention of Corruption Act, 1988, at best petitioner is role as he has entered into criminal conspiracy and other co-accused have been granted regular bail and investigation is completed and trial will take some time and petitioner has cooperated in the investigation and he never been arrested, hence petitioner deserve the privilege of anticipatory bail.
and submitted that in the facts and circumstances and stated above and taking into consideration that the petitioner is being treasurer of the National Games Association Committee has limited role and decision making process and investigation has been completed and petitioner was not arrested during course of investigation and he has cooperated during investigation and he has appeared before the A.C.B and further other co- accused have been granted regular bail in view of the judgment of State of Madhya Pradesh Vrs. Sheetla Sahai and Ors (Supra), petitioner deserve the privilege of anticipatory bail. Submission of Anti Corruption Bureau Learned counsel for the A.C.B has also filed the counter affidavit and referred to several paras which is reads as under:-
It is further stated that in para 6 of the HCC clearly states that the SOA and the Government shall be jointly and severely liable for all commitments entered by any or all of them concerning the organization of the game and shall assume, jointly and severally the entire financial liability for the organization of the game. All the agreement entered into between the SOA and the government relating to or having any effect upon their financial liability with respect to the games, including the manner in which they share any consideration, surplus or loss relating to the games, shall be submitted to the JOA executive council for approval.
That although it is case if criminal conspiracy and abetment, the facts of this case is giving rise to a irresistible inference than an agreement existed between the parties for looting the government money. Similarly intention to aid in the commission of crime is gist of abetment. It is worth mentioning here that the individual role of the accused petitioner is 14 submitted in para-5f.
That vide notification No. 884 dated 19/04/2008 the government of Jharkhand Constituted a tender committee to procure important goods and services. This notification categorically states that the tender should be processed in prescribed manner. In other words the financial rules of the government of Jharkhand were to be followed. The very fact that this tender committee was formed as a result of a formal government notification implies that the proceedings of this tender committee were to follow the state financial rules. The accused petitioner is also member of this special committee which is meant for purchasing materials etc. That the note sheet of file No. 3/national games culture 11/08 is also evident of the fact that the State Government Rules were being followed in the files pertaining to national games.
That the Indian Olympic Association sent a list of sports goods to be purchased to the department of sports, government of Jharkhand vide letter No. JOA/34th NG/Sports and electronic equipment dated 17/04/2008. This list Olympic association for use during 34th National Games 2008 to be held in Ranchi, Jamshedpur and Dhanbad. This list included the names of the sports equipments quantity as well as the approved brand name.
That a global tender bearing No.-NG/1 was floated by the NGCO on 05/05/2008. The terms and conditions mentioned in the tender are very explicit but does not mention of mobilization advances.
That the financial bid was opened on 26/06/2008 the comparative chart as prepared and put up before the tender committee on 16/10/2008 i.e. after a period of 4 months. The tender was finalized on the same date. This time gap not been justified anywhere in the file.
That the audit report of AG, Jharkhand bearing memo No. IR No-OAD- NC-241/2009-10 points out the financial year irregularities to the amount of INR 28,38,09,000/- as detailed below:-
Sl. No. Heading Remarks of AG Extra Total 1 Aquatics/Swimmin M/s Shiv Naresh 49,87,000/-
g(Imported) had submitted the
bid for the entire
package which
were the same as
recommended by
the IOA but the
order was placed to
Gem International
(L.2) without
recording any
reason
2 Badminton Purchased was 1,11,27,000/-
(Imported items) placed to the L2
bidder M/s Shiv
Naresh and not M/S
15
Khalsa which was
the LI bidder.
Violation of CVC
guideline has been
pointed out.
3 Weightlifting Items against Sl 8,24,000/-
(Imported) No. 7 to 14 were
not branded and
M/s Shiv Naresh
was not LI bidder
for these items.
4 I.Athletic NGCO decide to 30,56,000/-
(Imported items) buy OMEGA brand
from Gem
International at a
higher price, further
no NIT was
published for
procurement of
starting block with
lane Mike and
photo finish
Camera with start
gun. Despite this
the same was
included in the
order placed to M/S
gem international
ii. Video matrix It was further 7,24,91,000/-
colour score board observed that order
with replay facility for video matrix
start system and score board was
video screen on given to L2 bidder
line basis i.e. M/s gem
international
5 Basketball Work order given 15,03,000/-
(Imported) to L2 bidder
without any
recorded reason
6 Wrestling Work order not 13,10,000/-
(imported items given to II bidder
electronic screen without any
board) recorded reason
7 Men's Set imported Work order was not 4,85,000/-
given to L1 bidder
without any
recorded reason
8 Sonshou(Imported Work order was not 31,98,000/-
items) given to L1 bidder
without any
recorded reason
9 Sanshou Work order was not 33,17,000/-
(Indigenous) given to L1 bidder
without any
recorded
10 Tennis (Imported Work order was 16,33,000
items) given to L2 bidder
without any
recorded reason
16
11 Total Camera Negotiation was 5,38,000/-
(Imported items) done with all 3
bidder violating the
CVC guidelines.
Work order was
given to L2 bidder
without any
recorded reason
12 Excess purchase Tender was floated 73,55,000
for 140 items
however order was
placed for 160
items without any
recorded reason
Total 11,18,24,000/- 11,18,24,000/-
Failure to renew bank guarantee of INR 6,04,72,000/-
Sl No. Name of Company Amount renewed Total Loss 1 M/s gem International 4,75,92,000/-
2 M/s Chadda Sports 88,92,928/-
3 M/s Shiv Naresh 2,18,67,471/-
International Pvt. Ltd.
4 M/s CMC Ltd. 1,04,69,453/-
Total 6,04,72,000/- 6,16,56,000/-
Loss due to irregular 2,80,91,000/- 8,97,47,00/-
allotment on catering
service work. Work
order was not given to
L1 bidder. Tender
evaluation on the basis
of CD presentation
containing 50% of the
total marks in not only a
very subjective matter
and also prone to
manipulation and fraud
but also against all
norms of transparency
Loss of government 1,83,47,000/- 10,80,94,000/-
money due to
irregularities allotment
of work order to other
then lowest bidder LI
5 Loss due to payment of 1,73,03,000/- 12,53,97,000/-
mobilization advance
without proper bank
guarantee Mobilization
advance was not
mentioned in the NIT.
No interest was charged
on the mobilization
Advance
Extra Expenditure due to
not placing order on LI
bidder
Irregularities in tender 2,68,20,000/- 15,67,52,000/-
17
process and undue
advantage to the
Contractor
Excess payment to a 3,47,33,000/- 19,14,85,000/-
private party on single
tender basis without
undertaking any market
survey Transport
Excess payment to a 43,41,000/- 19,58,26,000/-
supplier to M/s Chadda
Sport Ltd.
Excess payment in the 62,05,000/- 20,20,31,000/-
shape of mobilization
advance
Undue benefit to the 1,08,42,000/- 21,28,73,000/-
bidder by paying
mobilization advance-
loss of interest
Irregular payment 1,10,00,000/- 22,38,73,000/-
Squash Court. Work
order tender and
agreement prior approval
was taken. No security
deposited was taken.
Second advance was
granted without
obtaining utilization
certificate
Loss of Govt money due 47,21,000/- 22,85,94,000/-
to irregularities in tender
procedure.
Non furnishing of 39,40,000/- 23,25,34,000/-
security deposit money
by M/S i-CATCH
communication India
Ltd
Excess payment to M/S 26,50,000/- 23,51,84,000/-
Creative International
Undue favour to 7,84,000/- 23,59,68,000/-
contractor by awarding
work order of INR
128.07 lakhs on
nomination basis causing
loss to the government.
Non submission of 3,14,000/- 23,62,82,000/-
security deposit by M/s
Amit Co. Khel Center
Excess payment of 3,09,000/- 23,65,91,000/-
mobilization advance
(medical equipment)
Irregular payment (daily 11,08,000/- 23,76,99,000/-
wages)
Non adjustment of 1,83,36,000/- 25,60,35,000/-
Advance (Cash
back/payment to M/s Air
Travel burea, New Delhi
Unauthorized/Irregular 76,00,000/- 26,36,35,000/-
18
payment (M/S Superior
Furniture)
Irregular Expenditure 74,22,000/- 27,10,57,000/-
(Medical Equipment)
Irregular payment (to 50,00,000/- 27,60,57,000/-
IOA)
Utilization Certificate 42,54,000/- 28,54,000/-
wanting
Non issue of money 98,000/-
receipt for 34,00,000/-
Total 34,8,000/- 28,38,09,000/-
It may be mentioned here that this public fund money which required at most care in spending in all the petitioner has indulged in criminal misconduct and abused the official position. That the memo of evidence prepared and submitted in the special vigilance court, Ranchi is very illustrative and exhaustive which runs into 38 points. All these points have been mention in detail in the case diary. The main points of evidence found against the petitioners are as below:-
Sri Ghanshyam Rajgari CA of Singh Mukherjee Associate Ranchi while auditing the files of the national games has pointed out more than 10 financial irregularities which consist of-
- Non renewal of bank gurantees.
- Extra payment to M/S Chadda Sports.
- Full 100% payment to M/s Chadda Sports for supply of goods. - without keeping back 15% higher bidder given work order for volunteer work to I catch communication.
- Payment done without keeping security deposit.
- Work order given without tender process for IT and accreditation services.
- Reduction of keep back amount, etc. That most of the medicines purchased for the games had already expired during the games, due to negligence of office bearers of NGOC including the petitioner.
That squash court was prepared by M/S Zyrex Enterprises, Mumbai which was paid Rs. 110 lakh as advance. The work was issued without tender and agreement. No approval/recommendation from higher authority was taken before issuing the work order. No security deposit was received though the party was required to furnish SD @ of 10%. The second advance was given without obtaining the utilization certificate of the first advance.
That M/S Praveen Brothers were granted free 30% Mobilization advance in place of the standard 20%. In spite of a written information with regard to the purchase rat of ambulances, no negotiation was made. Further the 5 year work experience pre requisite was relaxed. Ambulances were 19 bought at a higher rate.
That irregularity in opening and closing ceremony. The mobilization advance given to M/S Wizcraft as the bank guarantees had lapsed.
That irregularity in transport services. Work order was given in spire of single bidder. Marked rates were not verified from Jharkhand Tourism department. The value difference was to the tune of Rs. 347.33 lakh.
That irregularity in catering service. Tender was decided on the basis of cost and concept presentation. Work was not given to L1 resulting in financial loss of 280.91 lakh.
That irregularity in signage work. Mobilization advance was paid without checking the work done. Mobilization advance, as per tender conditions, was to be paid after furnishing security deposit of 10% of the value of work order and 50% of the value of work order was to be paid after the completion of all works.
That irregularity in Accreditation work. Work alloted on single tender. Bank guarantee were not renewed.
That irregularity in sanitation work. 30% Mobilization advance paid is place of 15%. Ranchi municipality was not consulted. Two successive mobilization advance were paid in spite of knowledge of the postponement of game and moreover Creative International had not even started the work.
That irregularity in VVIP Lounge and Guest House Work. Work order was given to a private company at Rs. 128.07 lakh without following normal tender procedure and without taking approval from Executive Board.
That irregularity in purchase of sports goods. Same as mentioned in para 2(1) above.
That irregularity in Volunteer Management. Marking was done on the basis of CD presentation due to which LI in cost was not given the work. Additional volunteers were deployed without approval of the tender committee.
That irregularity in purchase of Godrej furniture. Furniture worth Rs. 31,95,509/- was bought without tender and without approval of the NGOC Executive Board.
That irregularity in purchase of Volleyballs. The IOA list had mentioned NIVIA volleyballs as the approved brand but MIKASA volleyballs were purchased which were found to be duplicate and sub standard.
That irregularity in Air travel.
That irregularity in contract of tour and travel. On perusal of file pertaining to Gangotri Tour and Travel, tender documents were found unsigned by any member of the tender committee. There is no evidence of publication of tender in the file. Two luxury vehicles were sent to Delhi for eight days, four cars were deployed for GTCC members, two cars to DTO and one car was deployed to the transport committee but no approval has 20 been taken from any authority.
That irregularity in tender of sports goods. The irregularity in purchase of high mast light. High Mast light worth Rs. 6,92,33,651/- and 2,94,00,209/- were purchased for Mohrabadi football ground and Birsa Munda Hockey stadium from M/s Bajaj Electricals, Mumbai, Work order was given without tender on the basis of nomination. Financial Rule 245 was not followed as no approval was taken by the Cabinet in this regard.
That purchase of goods more than required. On perusal of NGOC file No. NGOC/T8 pertaining to bill payment of equipments, it was found that there was no co relation between the order place and the requirement.
M/s Chadda Sports:- The order was placed by the petitioner (Director NGOC) Vide letter No. 08 dated 01.11.2008 to M/s Chadda Sports worth Rs. 8,89,29,286/-. The following deviation was noticed which did not have any appropriate authority:-
Sl. Package Items Order given Requirement Remarks No. 1 Kayaking & Floating 9 1 8 extra ordered Canoeing platform 112 Ft (India) 8ft.
Floating 12 1 11 extra ordered
platform 6'8''
(8ft
Floating 10 1 9 extra ordered
platform (80ft
8ft. Ht 9"
3 Athletics Javlin 600 gm 12 8 4 extra ordered
(imported)
80mts.
Sl. Package Items Rate of value Correct value Remarks
No. (Rs.) (Rs.)
1 Rowing(importe Boat Racks 44,54,100/- 2,96,940/- 41,57,160/- paid
d) extra, it requires
recovery from
the supplier
2 Wushu (Indian) Gum Sheild 35000/- 3,500/- 31,500/- Extra
stated in the
order
M/s Shiv Naresh:- Agreement was signed on 17.11.2008 and order was placed on 31.10.2008 vide letter no. 08 the same date and letter no. 63 on 10.11.2008 by the Director NGOC worth Rs. 21,96,67,352/-. The following deviation was observation did not have any appropriate authority:-
Sl. Package Name of goods Order given Requirement Remarks No. 1 Judo (Indian) Electronic Stop 12 6 06 extra ordered & Go Watch 3 Boxing(importe Boxing 100 60 40 extra ordered
d) gloves(Red) Boxing Boxing gloves 100 60 40 extra ordered 21 (imported) (blue) Boxing Head guard 60 40 20 extra ordered (imported) small Boxing Head guard 80 40 40 extra ordered (imported) medium Boxing Head guard 60 40 20 extra ordered (imported) large 4 Fencing All Weapon 6 3 03 extra ordered (imported) scoring machine Electronic 48 36 12 extra ordered weapon Non electrical 36 24 12 extra ordered weapons Piste Electronic 6 3 03 extra ordered Mask Electronic 18 12 06 extra ordered Customer 18 12 06 extra ordered Electronic Gloves 48 36 12 extra ordered Breast Protector 48 36 12 extra ordered Spare wt. Paints 30 20 10 extra ordered Tool kit 6 3 03 extra ordered complete Fancing shoes 36 24 12 extra ordered 5 Taekwondo Stop Watches 12 6 06 extra ordered (imported) Whistles 16 8 08 extra ordered Similar deviation was found in order placed to M/s Amitco Khel Center pertaining to Javlins, Khalsa Gymnastics works with regard to iron Hammer and other items.
The witness of stadium managers at mega sports complex, Hotwar noted under section 161 Cr.P.C. has also revealed a large quantity of sports goods are still lying in sealed packs unused.
It is therefore, proved that the petitioner has acted in connivance with the supplier has ordered for goods more than that required.
That irregularity in purchase of Lawn Ball equipments:- No tender was floated and equipments were bought at a much higher rate than that purchased for the last national games held in Assam.
That irregularity in purchase of Kayaking and Canoeing (imported):-
M/S Shiv Naresh was declared the L1 bidder but the order was placed to M/S Chadda Sports, thus incurring a loss of Rs. 14,08,574/- to the government.
That irregularity in purchase of Super Furniture Chair:- There is a discrepancy in the no. of chairs. Further no signature is found in the tender documents. There is no approval taken from the departmental minister or the Chief Minister before placing of order. The quality of the chairs was 22 found to be inferior by the Executive Engineer, Special works Division on being asked to inspect. Chemical Grouting was found to be less which led to inflexibility of the installed chairs.
That irregularity in purchase of sports goods:- The amount spent in purchasing sports goods for the 33rd National Games in Assam was Rs. 19,01,88,635/-. The amount totaled by Lodha Patel Badhwa & Company, Charted Accountant was 67,72,45,445/- for the 34 th National Games held in Ranchi, Jamshedpur, and Dhanbad. But file no. NGOC-44/08 on page No. 34 has put this figure to 73,20,31,192/- for the 34 th National Games held in Ranchi, Jamshedpur and Dhanbad.
Sl. No. Venue/Assessment Amolunt Spent (Rs.) 1 33rd National Games in Assam 19,01,88,635/- 2 Lodha Patel Badhwa & Company. 67,72,45,445/-
Charted Accountant for the 34th National Games 3 File No. NGOC-44/08 on page no. 73,20,31,192/-
34 for the 34th National games That irregularity in purchase of Table Tennis balls:-
According to the requirement of the Association 50 dozen Table Tennis balls were used for the number of games and participants. The NGOC has bought altogether 700 dozen balls which are still lying in the stadium unused.
That irregularity in purchase of Omega Score Board:-
In spite of having a qualified bidder for the approved item, the tender committee decided to purchase Omega brand Score board from Gem International, which was not the L1 bidder. This incurred an extra cost of Rs. 2,50,27,620/-.
That irregularity in purchase of Newar:-
Newar was bought at Rs. 10/- per meter at Assam. For the 34 th National Games it was bought at Rs. 98/- per meter.
That the charge sheet has already been submitted against the petitioner bearing C.S. no. 30/16 dated 16.04.2016 under Sections 406/409/420/467/468/471/477(A)/120(b)/109 of the I.P.C and Section 13(2) read with Section 13(1)(c)(d) of the P.C. Act, 1988 and cognizance has been taken. It is further submitted that other co-accused have been granted regular bail in B.A. No. 1305 of 2015 with B.A. No. 2405 of 2015 and petitioner seeking anticipatory bail and in the view of the gravity of the offence and financial irregularity committed by the petitioner, hence he does not deserve the privilege of anticipatory bail.
After hearing the learned counsel for the parties and going through the nature of allegations against the petitioner who is the treasurer of the National Games Association Committee and mis appropriated of the 23 government fund along with other co-accused and A.C.B has been investigated this case and final form has been submitted against the petitioner and cognizance has been taken and other co-accused have been granted regular bail and this is the case of anticipatory bail and in view of the nature of the allegation so I am not inclined to grant anticipatory bail to the petitioner. Accordingly, the prayer for anticipatory bail of the petitioner is hereby rejected.
(Anant Bijay Singh, J.) Satayendra/