Jharkhand High Court
Binod Kumar Singh vs The Union Of India Through The Cbi ... on 8 June, 2021
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay
IN THE HIGH COURT OF JHARKHAND AT RANCHI
A.B.A. No.2307 of 2020
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Binod Kumar Singh. .....Petitioner
Versus
The Union of India through the CBI ....Opposite Party
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Coram: THE HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
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For the Petitioner : Mr. Indrajit Sinha, Advocate
For the C.B.I. : Mr. Rohit Sinha, Advocate
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C.A.V. On 23.11.2020 Delivered on _8/06/2021
Defects, as pointed out by the office, are ignored.
2. Heard the parties.
3. The petitioner apprehends his arrest in connection with R.C. Case No. 09(A) of 2011-D registered for the offences under sections 120B and 420 of the Indian Penal Code and Section 13(2) read with section 13(1)(d) of the Prevention of Corruption Act.
4. It has been stated in the FIR that M/s Vandana Fuel Industries, Rohtas and M/s Shanti Indhan had been allotted linkage quota of coal under the Fuel Supply Agreement from BCCL, Dhanbad for compulsory utilization in their respective plants at notified price which is much less than the price of coal sold through E-auction. It has been alleged that BCCL had supplied 54100 MT and 23980 MT of coal to M/s Vandana Fuel Industries and M/s Shanti Indhan from the period July, 2008 to May, 2010 and August 2008 to April, 2010. It has further been alleged that Udayan Bhattacharya, the then General Manager (S&M)BCCL, Dhanbad signed the said Fuel Supply Agreement with the aforesaid Firms. The firms had lifted the coal quantity at a notified price under the provisions of Fuel Supply Agreement for its compulsory use in their respective plants but in effect both the Firms did not utilize the said coal quantity in their respective plants and sold the same in open market at a much higher price during the above mentioned period whereas the General Manager (S&M) BCCL, Dhanbad did not inspect/verify as per the provisions of the Fuel Supply Agreement in connivance with the Firm. On the basis of the aforesaid information, a preliminary enquiry was conducted by the CBI (ACB) Dhanbad and it was detected that Udayan Bhattacharya, the then General Manager (S&M) BCCL, Dhanbad had entered into a criminal conspiracy with M/s Vandana Fuel Industries and M/s Shanti Indhan and signed the Fuel Supply Agreements on behalf of M/s BCCL with them on 30.06.2008 and 30.7.2008 and at no point of time, Udayan Bhattacharya while functioning in the said -2- capacity inspected the premises of the said Firm to ascertain the end use of coal by them. It has also been alleged that the petitioner who is the proprietor of M/s Vandana Fuel Industries also submitted false and fake documents in support of the end use of the quantity of coal of 54100 MT for the period from July, 2008 to May, 2010 and sold the same at a premium at open market which caused a wrongful loss of Rs.2,41,22523.41 to BCCL and corresponding wrongful gain to the petitioner. Similarly, the proprietor of M/s Shanti Indhan had also submitted false documents in support of the end use of quantity 23918 MT of coal for the period from August, 2008 to April, 2010 but the same was sold in open market at a premium which caused a wrongful loss of Rs.11641095.00 to M/s BCCL and corresponding wrongful gain to the proprietor of M/s Shanti Indhan. It has been alleged that Udayan Bhattacharya did not comply with the provisions of clause 4.4 of the Fuel Supply Agreement by not inspecting the premises of the said Firms in connivance with the other accused.
5. On the basis of the aforesaid allegations, R.C. Case No. 09(A) of 2011-D was instituted.
6. It has been submitted by Mr. Indrajit Sinha, learned counsel for the petitioner, that pursuant to a query made under the Right to Information Act, 2005 with respect to any loss suffered by BCCL in the context of selling coal on notified price to industrially linked FSA consumer, information was supplied that since coal was supplied at notified prices to the consumers during the relevant period, there was no question of any profit or loss. It has been submitted that in such background fact, no loss had been sustained by BCCL as alleged. Mr. Sinha submits that BCCL was informed by the petitioner by letter dated 2.8.2010 that production in the unit had been stopped till further supply of coal from BCCL. It has been submitted that the Fuel Supply Agreement was terminated by invoking the powers under clause 15.1.5 of the agreement on account of improper utilization and the end use of the coal lifted. Mr. Sinha further submits that the termination of the agreement was on account of the purported diversion of coal, which can, at best, be construed to be breach of the terms and conditions of the agreement. He adds that the bank guarantee of Rs.50,50,000/- which was the security deposit has also been forfeited for violation of the terms of the Fuel Supply Agreement. It has been stated that the investigation has been completed and chargesheet submitted. Mr. Sinha adds that when the investigation had commenced, the unit was already closed and the Fuel Supply Agreement stood terminated. Drawing the attention of the Court to the contents of the chargesheet, it has been stated that 43% of the -3- coal lifted from BCCL was undersized coal, which was not fit for utilization in the unit. Representations were also submitted before the authority regarding size and quality of coal supplied from some collieries which did not meet the specifications and request was made to supply coal from certain other collieries named in the representation itself to augment the production. Mr. Sinha also submits that there is no allegation that the petitioner was responsible for the transportation of coal. He has also referred to some orders, passed by this Court in A.B.A. No. 1800 of 2020 and A.B.A. No.1978 of 2020 though in different cases but with the same nature of allegations.
7. Mr. Rohit Sinha, learned counsel appearing for the C.B.I, while referring to the chargesheet, has submitted that the petitioner does not deserve the privilege of anticipatory bail. Replying to the contentions made by the learned counsel for the petitioner regarding some of the similarly situated co- accused having been granted anticipatory bail, submission has been advanced that their cases were on an entirely different footing. Mr. Rohit Sinha submits that it is wrong to say that the petitioner was not responsible for transportation of coal as it is the consumers who hired the transporters. Regarding the representations submitted by the petitioner with respect to supply of poor quality of coal is concerned, Mr. Sinha submits that those documents are not part of the police papers. He submits that the petitioner could have very well submitted such documents to the CBI. Mr. Sinha adds that notices were sent to the petitioner for production of documents showing end use of coal lifted during the relevant period but no documents were submitted which indicates that the coal was misused and sold in the open market.
8. Mr. Indrajit Sinha, in reply, submits that the purported loss suffered by the BCCL is purely speculative and infact the information under the Right to Information Act, 2005 clearly demonstrates that no loss was caused to BCCL. It has been submitted that there has been no conspiracy as alleged by the CBI.
9. The chargesheet filed by the CBI reveals certain irregularities which have been committed by the Firm. The petitioner has been arrayed as an accused on the basis of he being the proprietor of M/s Vandana Fuel Industries, Rohtas. In course of investigation, it was detected that some of the vehicles whose registration numbers were mentioned in the sale registers were motorcycles, scooters, cars etc. which were incapable of lifting and transporting coal. It was also detected that no fuel was used for processing of the raw coal in the oven which according to the investigating agency establishes that the raw coal was sold in the open market on premium. The CBI in order to substantiate such allegations has also relied on the electrical connections -4- taken in the name of Shri Jai Mangal Singh which is 1 KW load, which was only for lighting purposes and no production could be carried out with such limited load. Mr. Indrajit Sinha in course of his argument has pointed out that Shri Jai Mangal Singh is the father of the petitioner and if the electrical connection was in the name of his father, the same was merely an error. The findings of the investigation do reveal some contradictions with respect to the end use of the raw coal by the Firm of the petitioner. On the basis of the sale and dispatch register submitted by the Firm, a chart was prepared by the then Chief Manager (Sales), BCCL, Dhanbad, which reveals that the Firms had sold 57% finished coal in the open market by utilizing the same in the plant and 43% of the coal was sold in the open market showing it to be undersized. Some of the representations brought on record does indicate that the petitioner has raised his grievance regarding supply of undersized and poor quality of coal on several occasions even specifying the name of the collieries from where if the coal is supplied the same shall augment the production in the Firm of the petitioner.
10. Apart from what has been stated above the information received under the Right to Information Act, 2005 does not indicate any loss suffered by the BCCL. On account of the irregularities purportedly committed by the Firm, the Fuel Supply Agreement has been terminated and the bank guarantee, which was by way of a security deposit, had also been forfeited. Such facts and circumstances, enumerated above, does warrant grant of anticipatory bail to the petitioner.
11. Accordingly, the petitioner, named above, is directed to surrender in the court below within a period of four weeks from today and on his surrender/arrest, he will be enlarged on bail, on furnishing bail bond of Rs.10,000/- ( Ten thousand only) with two sureties of the like amount each to the satisfaction of learned Sub Divisional Judicial Magistrate cum Special Judicial Magistrate, CBI, Dhanbad in connection with R.C. Case No. 09(A) of 2011-D, subject to the conditions as laid down under Section 438(2) of the Code of Criminal Procedure.
12. This application stands allowed.
( Rongon Mukhopadhyay, J) Rakesh/-