Gauhati High Court
Brigadier (Retd.) D A Chansarkar vs State (C.B.I.) on 29 August, 2017
Author: Paran Kumar Phukan
Bench: Paran Kumar Phukan
1
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM, AND ARUNACHAL PRADESH)
Crim inal Appeal No.38 of 2005
Brigadier(Retd.) D.A. Chansarkar,
Son of Late Anant Chansarkar,
Resident of 6 Saraswati Layout,
Dindayal Nagar, Nagpur,
Pin-440022.
(Presently residing at Paltan Bazar,
P.O- Guwahati
District- Kamrup, Assam)
....Appellant
-versus-
Central Bureau of Investigation (C.B.I.)
....R espondent
By Advocates
For the Appellant: Mr. J.C. Gaur, Adv.
For the Respondent: Mr. S. C. Keyal
Crim inal Appeal No.39 of 2005
Col. Ravi Kumar Khanna(Retd.), Son of Jaichand Khanna, Resident of House No.45, Sector-37 Arun Vihar, Noida-201303 in the State of Uttar Pradesh.
....Appellant
-versus-
Central Bureau of Investigation (C.B.I.) ....R espondent By Advocates For the Appellant: Mr. P. Katakey, Adv.
For the Respondent: Mr. S. C. Keyal Crim inal Appeal No.42 of 2005
1) Md. Ayub, Son of Late Sheikh Mohd. Faroque, Resident of M.G.Road, Machkhowa, Under Bharalumukh Police Station, Of Guwahati city in the district of Kamrup, Assam.
2) Abdul Khallaque, Son of Late Abdul Razzak, Resident of S.S. Road, Lakhtokia, Crl. A. No.38 of 2005 Crl. A. No.39 of 2005 Crl.A. No. 42 of 2005 2 Under Panbazar P.S. of Guwahati In the district of Kamrup, Assam.
....Appellants
-versus-
Central Bureau of Investigation (C.B.I.) ....R espondent By Advocates For the Appellants: Z. Kamar, Adv.
For the Respondent: Mr. S.C. Keyal
BEFORE
HON'BLE MR. JUSTICE PARAN KUMAR PHUKAN
Date of hearing : 30-05-2017
Date of judgment : 29-08-2017
JUDGMENT AND ORDER (CAV)
These 3 (three) appeals are preferred against the judgment and order dated 29.12.2004, passed by the learned Special Judge, (CBI), Guwahati Assam in Special Case No.66/2004 convicting the accused appellant Brig. D.A. Chansarkar and Col. R.K. Khanna under Section 120B/420 and under Section 13(1) (d) read with Section 13(2) of the Prevention of Corruption Act, and the other two appellants under Section 120B/420/468/471/465 of the IPC and sentencing them to various terms of imprisonment and fine with default clauses.
2. The case against the accused appellants came to be registered by the Superintendent of Police, ACU-1 New Delhi on the basis of source information received by them to the effect that the accused appellant No. 1 an 2 (A1 and A2) who were posted as Deputy Director, Supply and Transport (DDST) 101 Area Headquarter, Shillong and Commanding Officer, Advance Base Supply Depot Crl. A. No.38 of 2005 Crl. A. No.39 of 2005 Crl.A. No. 42 of 2005 3 (ABSD), Guwahati respectively in collusion with the other appellants (A3, A4 and A5) who were army suppliers, by corrupt and illegal means, defrauded the army by purchasing/supplying huge quantity of sub-standard butter at exorbitant prices. On completion of investigation CBI submitted charge sheet against the accused appellants A1 and A2 under Section 120B/420 and Section 5(2) read with Section 5(1) (d) of the P.C. Act, 1947 and under Section 420/468/471 of the IPC against the suppliers Mohammad Ali (since deceased), Md. A. Khalleque and Md. Ayub (A3, A4 and A5 respectively) and forwarded them to face trial before the court.
3. Learned Special Judge, CBI framed charges against the appellant A1, A2 under Section 120B/420 of the IPC and section 13(2), read with Section 13(1) (d) of the P.C. Act and under Section 120/420/468/465/471 of the IPC against the other 3 appellants A3, A4 and A5. The appellants pleaded not guilty to the charges. The appellant Md. Ali (A4) died during the pendency of the trial and the case came to be abated against him.
4. The sum and substance of the prosecution case is that during the period from May, 1984 to May 1985 the appellants A1 and A2 entered into a criminal conspiracy with the other accused appellant A3, A4 and A5 to purchase butter for the army units at a very exorbitant price, which they were not authorized to do as it was a centrally procured item. The butter supplied was found to be unfit for human consumption. The entire procedure was done in total violation of the existing circulars by the competent authorities for illegal gain.
5. The accused appellant A1 and A2 admitted having purchased the butter from the other appellants but denied that it was procured at exorbitant price and Crl. A. No.38 of 2005 Crl. A. No.39 of 2005 Crl.A. No. 42 of 2005 4 according to them they followed all the rules and procedures. They also pleaded that under compelling circumstances the purchase was made at competitive price that too after inviting quotations. The other appellants who were the suppliers denied having supplied inferior quality butter and according to them since they were the lowest bidder, orders were placed with them to supply the butter.
6. Heard Mr. J.C. Gaur, learned counsel for the appellant in Crl. A.No.38/2005, Mr. P. Katakey, learned counsel for the appellant in Crl.A.No.39/2005 and Mr. Z. Kamar, learned counsel for the appellants in Crl.A.No.42/2005. Also heard Mr. S. C. Keyal, learned counsel for the CBI.
7. Initiating the argument Mr. Gaur, learned counsel for A1 submits that A1 joined as DGST, 101 Area Headquarter, Shillong on 31.03.1984 and after joining his new assignment he found that though butter and some other articles were centrally procured articles but those were allowed to be purchased by ABSD, Guwahati for distribution in army units operating in North Eastern Region and this was done with the consent of DGST, Shillong. After his joining he continued the earlier practice and he was oblivious of the procedures followed by A2 as such there is no question of any criminal conspiracy by him to procure butter at exorbitant price. Mr. Katakey, learned counsel for the appellant A2 contends that there is no violation of the Rules and procedures while purchasing the butter for the army units and as ordered by A1 who was the DGST at the relevant time articles were purchased after following due procedures. The orders were placed with the appellants M/S M.K. Enterprise as per recommendation of the Board constituted for the purpose and as such no illegality was committed. The learned counsel Mr. Z. Kamar appearing for the A3 and A5 argued that being food Crl. A. No.38 of 2005 Crl. A. No.39 of 2005 Crl.A. No. 42 of 2005 5 suppliers they supplied the butter as ordered and they offered to supply best quality of butter (Polson) and quoted lowest prices and as such, their bid was accepted and there is no complaint from the authorities that butter was sub- standard and they had no mechanism to know the quality of the butter inside the tins supplied by them. No criminal liability can be attributed to them for supplying the butter to the army unit as per the terms and conditions of the NIT.
8. Advancing further Mr. Gaur, argued that the lowest rate for butter tin as disclosed by the prosecution witnesses including the representatives of the manufacturer of Amul and Polson butter was at Rs.43.75/kg, 45.45/kg and 47.50/kg and if local taxes and other charges are added to these rates and 10% is added to it then the concluding rate will be much higher than the rates at which the butter tins were purchased by ABSD, Guwahati. Consequently, the accusations of causing loss to the Government of India, Ministry of Defence is nothing but a hypothesis for which criminal liability cannot be attributed to any person. By referring to the evidence of representatives of Amul butter it is further argued that in the year 1984 there was shortage of butter due to Asian Games in Delhi. Inviting my attention to the evidence of the representatives of the Amul, learned counsel contends that the manufacturer has not specified whether the rates of Rs.41.35/kg and 42.50/kg in 1984 and 47.50/kg and 47.30/kg in 1985 was quoted for paper packed quality or tinned quality of butter and the difference between the two would be about Rs.10/kg which is apparent from the evidence of the suppliers of Dimapur and Silchar depots.
9. It is argued on behalf of A2 that the butter was supplied in sealed tins and he had no knowledge that those were sub-standard as no specific complaint Crl. A. No.38 of 2005 Crl. A. No.39 of 2005 Crl.A. No. 42 of 2005 6 was received by him after the tins were sent to different units. The manufacturer of the butter was Polson which is a reputed company and he never doubted the quality of the product inside the tins. It is argued on behalf of A3 and A5 that they also had no knowledge regarding the quality of butter inside the tins and since the company was a reputed one they did not have suspicion regarding the quality. When the matter was brought to their notice they expressed their desire to take back the sub-standard butter. Moreover, it is argued that the butters are to be kept in freezer and if not kept property there is likelihood of deterioration of the quality for which they cannot be held liable.
10. The next limb of argument advanced by Mr. Gaur, learned counsel for the appellant A1 is that MGASC Eastern Command Headquarters, Kolkata accorded ex post facto approval to the supply orders after going through the documents and letters, messages in this regard were issued by MGASC and DDST in its turn issued sanction letters to other store depots in N.E. Region according sanction and approval for local purchase of butter tins. However, the purported letters, messages were not produced during the trial of the case and during the pendency of the appeal an application under Section 294 read with Section 311 of the Code of Criminal Procedure was filed before this court. Accordingly court also issued notice to the prosecution but no objection has been filed and this court passed an order to the effect that the petition shall be considered at the time of final hearing of the appeal. Mr. Gaur, learned counsel contends that if the procedural irregularities occurring while purchasing/procuring butter locally is the criteria or benchmark then most of the prosecution witnesses and officials of the army have committed offence by violating the provisions of ECO-7/66 Exhibit- Crl. A. No.38 of 2005 Crl. A. No.39 of 2005 Crl.A. No. 42 of 2005 7
221. Mr. Gaur, strenuously submits that irregularities perse cannot be a ground to attribute criminal liability to a public servant. Knowingly or unknowingly the officials/public servants commit genuine mistakes without any ill motive and for such acts they cannot be prosecuted for criminal offences. Butter was essential at that time for the army units and since there was scarcity of the same due to Asian Games, the appellants decided to procure butter from the local market and even if there was some procedural irregularities that would not be a ground to attribute criminal liability to the officers who were otherwise discharging their duties honestly without any blemish in their service career.
11. It is also contended that ex post facto approval was given by MGASC Eastern Command Headquarters, Kolkata to purchase butter after going through all the relevant documents and had there been any illegality committed or the rates were exorbitant approval would not have been given. It is also contended by Mr. Gaur that at the instance of PW 56 a court of enquiry was held regarding the accusations but the court of enquiry was closed at the behest of some vested interest as A1 was likely to be exonerated during the enquiry.
12. Before adverting the submissions advanced by the learned counsel for the parties it is necessary to have an overview of the Rules and Procedures for purchasing/procurement of butter and other items as provided under the instructions for local purchases contained in Appendix 'A' to Eastern Command Order or ECO 7/66 which takes care of matters from A to Z relating to purchase of 'Central Purchase Articles' marked as Exhibit-221. This document, admittedly is the binding procedure to be followed for local purchase by any army unit. The Crl. A. No.38 of 2005 Crl. A. No.39 of 2005 Crl.A. No. 42 of 2005 8 provisions of the Exhibit-221 having a bearing on the matters in dispute in the instant case are reproduced below:--
"2. The circumstances under which local purchase may be made are as under-
(a) Central Purchase Supplies:
(i) When ordered by Army H.Q.
(j) When the stock of central purchase articles and its substitutes has been exhausted and there is delay in stocks arriving from central sources or in an emergency. In such cases minimum requirement will be purchased. Prior sanction of BASC(DST, if possible) should be obtained.
3.Local purchase of central purchase articles of food stuffs should , as far as possible, be made from CSD(I). If these are not available with CSD(I) as non-availability certificate will be obtained from them before purchases are made direct from the trade. Items of animal rations are purchased from trade. When purchases are made from the trade it should be ensured that such purchases are made at competitive rates from authorized dealers, standard firms or individual wholesale dealers dealing with these items. If the wholesale dealer are reluctant to give supplies on credit against supply order (IAFZ-2135) and the services of a middleman are necessary, every effort will be made to ensure maximum competition.
4. All purchases will be made at the prevailing market rates. When this is not practicable, purchases may be made at competitive rates which will not exceed the prevailing market rates by more than 10 percent. If due to exceptional circumstances this also is not possible, purchases may be made at the lowest rate available, provided prior approval of BASC is obtained as to the rates to be paid. In such cases, a certificate to that effect will be furnished by the Officer making the purchases. However, these restrictions will not apply to purchases made, at the risk and expenses of defaulting contractors in accordance with the terms and conditions. LOCAL MARKET RATES:-
2. In order to ensure that local purchases are effected at most economical and competitive rates and also to ensure that the conditions mentioned in Para 4 above are fulfilled. It is essential that local market rates of the item(s) under purchase conforming to ASC specification are available with the Officers effecting the purchase. For this purpose the officer m aking the purchases w ill request the OC Station to detail a Board of Officers to obtain the local m arket rates of the item (s) conform ing to ASC specification. OC Station, if and w hen possible, w ill arrange for a representative of Cantonm ent Crl. A. No.38 of 2005 Crl. A. No.39 of 2005 Crl.A. No. 42 of 2005 9 Ex ecutive Authorities to be associated w ith such enquiries. The rates so obtained w ill be authenticated by the OC Station in the Station Orders and form basis for local purchases."
13. The prosecution to prove the charges examined as many as 58 witnesses out of which 24 numbers of witnesses are Army Officials, 8 numbers of witnesses are Bank Officials and 9 numbers of witnesses are private individuals. That apart, 8 numbers of witnesses have been examined from the Postal and Sale Tax Department. One government examiner on question documents and one witness of the sanctioning authority have been examined and 3 numbers of witnesses also examined from the CBI.
14. In the impugned judgment, the learned Special Judge has elaborately discussed the entire evidence of the prosecution witnesses which needs no further proliferation and I am only referring those pieces of evidence necessary to decide the questions raised in the appeal. The Army Officials mainly deposed as to the manner in which local purchase of articles like rice, dal, atta, ghee and butter etc., are made and the evidence of these set of witnesses established that usually the above mentioned articles are procured centrally by the central office known as CDS. In case of shortage of any item in the Army unit such article can be purchased locally after obtaining sanction from the DDST. For purchasing of such articles locally quotations are floated and those quotations splited up as per financial power of the Commandant. In the present case evidence on record reveals that Board was duly constituted for the purpose and quotations were invited and the bid offered by the appellants M/S M.K. Traders were accepted being the lowest. It was sought to be proved by the prosecution that butter was purchased at exorbitant price of Rs.52/kg though at the relevant time it hovered Crl. A. No.38 of 2005 Crl. A. No.39 of 2005 Crl.A. No. 42 of 2005 10 between Rs.41 - 47. There is evidence on record to show that at the relevant time butter was easily available in Assam and the market price never exceeded Rs.41 to 47. The defence contention is that A3 and A5 purchased butter @ Rs.49/kg at Patna and that too from the manufacturer company itself and as such there is no question of purchasing butter at a price lower than the price at which they purchased the butter in question. With the addition of 10% which is allowed by the Circular (Exhibit-221) and after inclusion of cost of freight etc., the amount at which A3 and A5 supplied the butter cannot be said to be exorbitant. The learned Trial Judge relying on the testimony of Pw-25 and also the other materials placed before him came to the finding that there was no shortage of butter in Assam at the relevant time and all the reputed companies agreed to supply the army butter not only on credit but at a very competitive low and concessional price as well. By referring to the evidence of Pw-25 the trial court has held that though the appellants purchased the butter @ Rs.41/kg it was supplied at an exorbitant price of Rs.52/- per kg.
15. On going through the evidence of Pw-25, I have noticed that though he claims to have sold the butter to Abdul Khalleque @ Rs.41/kg but he admitted that in response to Exhibit-95 letter written by Headquarter, Army Commandant, Kolkata he quoted the rate of Polson butter @ Rs.49/kg and if huge quantity is purchased they agreed to reduce the price by Rs.4/kg. His evidence also reveals that though they had a plan to supply butter sold by them to the purchaser at their doorstep and the price quoted by him included everything including the cost of freight but from his evidence it cannot be discerned that they also decided to supply butter at the doorstep in all the States. Admittedly, Pw-25 was the Crl. A. No.38 of 2005 Crl. A. No.39 of 2005 Crl.A. No. 42 of 2005 11 Director of Polson Private Ltd., of Patna and it cannot be said with certainty, from his evidence that the company agreed to supply butter in Assam without charging the cost of freight and other incidental expenses. Obviously, the supplier after purchasing butter at Patna is to carry the same to Guwahati and after the cost of freight and other incidental expenses are added the price of butter supplied in Guwahati will be much more than in Patna. It also cannot be discerned from the evidence of Pw-25 as to whether he quoted the price at Rs.49/kg for supplying the same at Guwahati or at Patna.
16. The prosecution also made a feeble attempt through the evidence of some other businessmen, to prove that the market price of butter was much lower than the price at which the supplier appellants supplied butter to the army.
But it appears from the evidence that the price was fluctuating at the relevant time. Pw-11, Pw-22 and Pw-34 are Army suppliers. According to Pw-11 he supplied butter to Panitola depot. He quoted price of Rs.50/kg. Pw-22 quoted price of Rs.49/kg for supplying butter to the army at Silchar. Pw-34 quoted price of Rs.45/kg for supplying butter at Dimapur. Similarly, from the evidence of Pw- 14 who was the Depot Manager of Gujarat Cooperative Society, it appears that rate of butter was fluctuating and though the initial rate was 396.95/ carton in 1994 it was subsequently enhanced to 455.70/ carton in February, 1985.
17. What crystallizes from the evidence is that the price of butter was not fixed and it was fluctuating and the suppliers supplied butter to army at different rates in different places.
18. That apart, admittedly, quotations are invited by the Board constituted for the purpose and those are even opened by the Board members and comparative Crl. A. No.38 of 2005 Crl. A. No.39 of 2005 Crl.A. No. 42 of 2005 12 statement are also prepared by the Board. The Board also recommend the price at which butter is to be purchased. A1 and A2 had no significant role to play in such matters and actions are taken by them as per recommendation of the Board. It was none of their business to go to the market and verify. The supplier appellants offered lowest bid and that was accepted by the Board and even if the price was on the higher side, criminal liability under such facts and circumstances cannot be attributed to the appellants A1 and A2. The suppliers are also not expected to supply butter to the army at the price at which they purchased butter from the manufacturer and obviously they would quote the price keeping the margin of profit for which they cannot be held criminally liable.
19. The next question which comes for consideration is as to whether the supplier appellants submitted quotations in the name of fictitious and non- existent firms. The prosecution left no stone unturned to prove that the appellants A3 and A5 submitted quotations in the name of fictitious firms. They have examined postal peons Pw-2, Pw-3 and Pw-4 to prove that the registered letters were sought to be delivered to the addressees M/s MT Enterprise and M/s MK Traders in Fancy Bazar and Lakhtokia respectively. But the letters could not be delivered as the postal peons could not locate the firms at Fancy Bazar and Lakhtokia. Needless to say that Fancy Bazar and Lakhtokia are big areas having several beats and it is not conclusively established that postal peons visited all the beats in Fancy Bazar and Lakhtokia to deliver the registered letters to the firms. The prosecution also examined Pw-5, Pw-6 Tax officials and they also could not find the names of M/s MK Traders and M/S Abdul Sattar and Co. in their offence record. Pw-7 Excise Officer testified that the name of the firm M/s Crl. A. No.38 of 2005 Crl. A. No.39 of 2005 Crl.A. No. 42 of 2005 13 Maqbul was not found in their office record. However it is admitted by Pw-5 that some firms may deal with business of taxable goods without their knowledge. Pw-7 Excise Officer admitted that he was adducing evidence from his memory and as such it is not conclusive from his evidence that the aforesaid firm is non- existent.Pw-10 army supplier Md. Saifullaha denied his signatures in the various quotations in the name of his firms M/s Md. Saifullaha and he also denied that any of his staff member put signatures in the quotations. But there is also no conclusive evidence that the accused appellants put their signatures in those quotations submitted on behalf of M/s Md. Saifullaha.
20. Moreover, a firm is an entity under which business is transacted and it is not compulsory for the firm to have a separate office to prove its physical existence. The proprietor of the firm can transact business, in the name of the firm from his place of abode also. Any individual can open a firm to transact business in the name of a firm and it is not even compulsorily required to be registered with the Registrar of Firms or with Tax and Excise authorities. Only trade licence is required to be obtained from the competent authority to transact business in the name of the firm and the licensing authority can take action if there is any breach thereof. Similarly, for failure of the firm to clear taxes the Taxing department is only competent to proceed against the firm according to their own procedure and statutes. In the present case, in all probability the postal peons were looking for offices of the firms which they were unable to locate which cannot be a ground to hold that the firms were non-existent. Similarly, non-availability of the names of the firms with Tax and Excise department cannot be a ground to hold that the firms were not existing. Crl. A. No.38 of 2005 Crl. A. No.39 of 2005 Crl.A. No. 42 of 2005 14
21. Defence contention is that the appellants suppliers put their own signatures in the tender document and quotations and no forgery was committed by them and they did not fabricate any document. The questioned documents were sent to the expert for examination and opinion. The handwriting expert, Pw-42 confirmed that handwriting of the appellants were similar to the handwriting found in the questioned documents which fortifies the defence version. Moreover, it is for the departmental authorities (here the Board) to verify the credentials of the bidders and they should have insisted for production of requisite certificates such as, income tax clearance certificate, sale tax clearance, trade licence etc. It is not known from the evidence on record, as to whether the aforesaid documents were produced before the Board by the bidders taking part in the bids. The Board was constituted with officers of various ranks drawn from different army units and the Board is responsible for inviting quotations, opening quotations, preparing the comparative statement and thereafter recommend the name of the firm or the individual who is found responsive and quoted the lowest bid.
22. In the instant case, prosecution relied on a number of circumstances to show that the accused appellants committed offence of criminal conspiracy. The circumstances relied on are (i) the appellants violated circular vide Exbt.221 which is not only mandatory but also takes care of all from A to Z of the matter relating to supply of articles to the army; (ii) the accused appellants purchased/supplied butter to the army at a very exorbitant price; (iii) the butter so supplied was sub-standard and unfit for human consumption; (iv) the appellants A1 and A2 purchased butter in huge quantity when there was not Crl. A. No.38 of 2005 Crl. A. No.39 of 2005 Crl.A. No. 42 of 2005 15 necessity for purchasing such huge quantity; (v) the butter was procured from non-existent firms; (vi) the supply orders were splitted up so as to bring such order of supply within the official power of A2; (vii) the accused appellants, A1 in particular centralized the process of purchase of centrally purchased articles and authorized only A2 to purchase those articles locally for distributing the same to the army units operating in North Easters Region; (viii) the appellant A2 purchased articles without obtaining non-availability certificate from CDS.
23. Mr. S.C.Keyal, learned Standing counsel for the CBI strenuously contends by referring to the evidence on record that the circumstances from which conclusion of guilt of the appellants are to be drawn have been fully proved and those are conclusive in nature and only consistent with the hypothesis of the guilt of the appellants and totally inconsistent with their innocence. The circumstances taken together have established that the appellants committed the crimes and the prosecution has been able to prove the charges beyond all reasonable doubt.
24. In controversion, learned counsel appearing for the appellants argued that though there was some departmental lapses, yet any dishonest intention on their part could not be shown and none of the circumstances relied upon by the prosecution could be construed as incriminating and are of conclusive nature. All the circumstances put together would not lead to the conclusion that the said circumstances are compatible only with the hypothesis of guilt of the appellants and wholly incompatible with their innocence.
25. In the backdrop of the aforesaid contentions, I have once again perused the evidence as well as the materials placed before me.
Crl. A. No.38 of 2005Crl. A. No.39 of 2005 Crl.A. No. 42 of 2005 16
26. Prosecution placed before the court the circular which governs the local purchase of "Centrally Purchased Articles" which unmistakably evinces that the circular Appendix-'A' ECO-7/66 marked as Exhibit-221 strictly prohibits the army units from purchasing articles which are procured centrally. However, some relaxation has been provided by the circular itself and in case of emergency army units are permitted to purchase those items locally on fulfilling certain conditions and that too, after obtaining approval from the higher authorities. It is to be ensured that the purchase is made at competitive rates and in any case it will not exceed the prevailing market rate of more than 10%.
27. In the present case, it transpires that prior approval was not taken before purchasing the materials but ex-post-facto approval was obtained from MGASC, Eastern Command Headquarters, Kolkata. The appellant A1 who was posted as DGST, Eastern Command, Shillong at the relevant time was an officer in the rank of Brigadier and after receiving requisition from various army units in North Eastern Region instructed the appellant A2 an officer in the rank of Colonel to purchase butter locally. Evidence also discloses that instead of purchasing minimum quantity of butter as provided under Exhibit-221, it was decided to purchase huge quantity of butter. It was sought to be proved by the prosecution through the evidence of Pw-21, Pw-26, Pw-29, Pw-30 and Pw-38 that huge quantity of butter was purchased and sometimes consignment of butter so purchased was so big that surplus butter from such units was to be transferred to some other units, only to be rejected, consignee units themselves burdened with huge quantity of surplus butter. Defence contention is that butter was purchased only after receiving demands from various army units operating in Crl. A. No.38 of 2005 Crl. A. No.39 of 2005 Crl.A. No. 42 of 2005 17 North Eastern Region and as such, there was no violation of the circular, Exhibit-221. It is found from the record that during the period from May, 1984 to May, 1985 total quantity of butter purchased was 31.5 M.T., by A2. What emerges from the evidence is that no prior assessment regarding requirement was made before placing orders and from a perusal of the evidence on record it cannot be inferred that the quantity of butter purchased was in conformity with circular, Exhibit-221 which prescribed minimum quantity to be purchased in case of emergency only.
28. However, evidence reveals that the entire quantity of butter was not procured at a time and orders were issued to the supplier from time to time. According to Pw-1 Gur Kripal Singh, who was the Deputy Commander of ABSD at the relevant time, if there was shortage of any article, such article can be purchased locally and for that purpose quotations are invited and such quotations are split as per financial power of the Commandant. Notice inviting quotations are displayed in the notice board and after receipt of the same, quotations are kept in a locked box, key of which is retained by Deputy Commandant. From his evidence I do not find any substantial deviation from the circular, Exhibit-221 except the quantity His evidence reveals that MGASC, Kolkata is the head office for Eastern Command in the matters of supply of articles and Commandant Eastern Command, DDST, Headquarter, Shillong is under MGASC. Evidence of Pw-19 shows that he was the Presiding Officer of the Board constituted for the purpose and from his evidence, it appears that the procedures were duly followed and connected files were duly maintained by the Board and some of the files were even produced during the trial. Crl. A. No.38 of 2005 Crl. A. No.39 of 2005 Crl.A. No. 42 of 2005 18
29. When articles are sought to be procured it is the duty of the officers connected with the procurement, before placing the orders, to make assessment of the quantity of the article to be purchased. In the present case from the evidence on record it cannot be discerned that any prior assessment was made. However, the evidence discloses that requisitions were received by the DDST, Shillong from different army units requesting for butter pursuant to which it was decided to procure butter locally. It also found from the evidence that huge consignment of butter was sent to some units which the units were unable to consume due to which excess butter tins were allocated to other units. On an overall assessment of the evidence it can be said with some degree of certainty that the quantity of butter procured was not in conformity with the Circular Exhibit-221. May be it was an error of judgment or an act of indiscretion, but from that alone dishonest intention cannot be inferred. Reverting back to the evidence I have found that A1 joined in his new assignment in Shillong in March, 1984. He being the DDST was the person responsible for maintaining the essential supplies to the various units in the North Eastern Region. Butter which is essential for army was scarce at that time due to Asian Games in Delhi. Prior to his joining army units used to purchase butter locally according to their requirement. Defence argued that since Guwahati is the only city in NE Region, he thought that butter would be cheaper in Guwahati and due to this reason he restricted the army units from procuring butter locally and instead asked A2 to do the job for the entire region. There was no ill motive on his part and his only fault was his inability to assess the actual requirement and decided to procure butter for the entire region. Moreover, there is no evidence that butter tins were not consumed and destroyed. No doubt complaints were received by the Crl. A. No.38 of 2005 Crl. A. No.39 of 2005 Crl.A. No. 42 of 2005 19 appellants regarding quality and though the samples of butter was not sent to food analyst of Central Food Laboratory for examination but from the evidence on record particularly, the evidence of Pw-9 Sudhir Kr. Seni, Wing Commander, Pw-21 GPS Mehra, Administrative Officer, Panitola, Pw-30 Major S.Kr. Sarma, Pw-38 A. Nimbulkar, Commanding Officer, supply depot, Silchar, Pw-51 Arabinda Kr. Rai, Squadron Leader it emerges that the quality of butter received by the units in which they were posted was inferior and unfit for human consumption. There was leakage in some tins of the butter from which foul smell was emanating. When the appellant A2 received complaints regarding the quality, he even asked to return the tins with a view to return the same to the suppliers. Pw-51 even calculated the quantity of butter which was found unfit for human consumption and he worked out the damage at Rs.8065.05 against 194.86 kg of butter. Butter was sought to be tested in the Central Food Laboratory and letter to that effect was also issued in response to which CFL asked for previous laboratory report, but despite repeated communications made, the composite Food Laboratory could not furnish the report.
30. It is argued that since the butter has not been examined in the laboratory the same cannot be said to be unfit for human consumption but the argument is found to be devoid of any substance. Even a common man can say after consuming the butter and smelling it about the quality of the same, no further testing is necessary. In the present case some of the army officials found the butter unfit for human consumption and there was foul smell emanating from the tins which were leaking. The evidence of the army officials amply proved that some of the butter tins supplied were not fit for human consumption. Crl. A. No.38 of 2005 Crl. A. No.39 of 2005 Crl.A. No. 42 of 2005 20
31. Now the question is whether the appellants knew that the butter was not fit for human consumption. Admittedly, the butter tins were received by ABSD. It is argued that since it was supplied in sealed tins, they had no knowledge that those were sub standard as no specific complain was received by ABSD after the tins were sent to different units. They have no reason to doubt the quality because the manufacturer was Polson. The suppliers were also under the impression that since the butter was supplied by Polson the same would be of good quality. They were totally unaware of the quality inside the tins and they were even willing to take back the tins which were found leaking. From the evidence on record it cannot be said with certainty that the appellants had knowledge that the butter tins were not fit for human consumption. The appellant A2 even asked the officers to return the tins found damaged so that the same could be returned to the suppliers. Moreover, appellants were senior army officials in the rank of Brigadier and Colonel and it is unbelievable that they would enter into conspiracy with the other appellants to procure rotten butter for the army units for consumption.
32. Another circumstance, relied upon by the prosecution is that the appellant A2 during that period had sent money to his other family members through demand draft. On going through the evidence of Pw-32 Anik Kr. Gupta and Pw- 48 H.S. Agarwal both bank officials it appears that draft for Rs.8,000/-, Rs.7,000/- and Rs.5000/- and other draft of small denominations were sent from Maligaon branch of the SBI, to the family members of the appellant A2 residing in Delhi. There is no evidence that he was incapable of sending the amounts to his family members. The amounts involved were also not big enough to raise any Crl. A. No.38 of 2005 Crl. A. No.39 of 2005 Crl.A. No. 42 of 2005 21 doubt regarding his financial capacity to send the amounts to his family members including his wife and children. The officer was posted in Guwahati at the relevant time leaving his family at RK Puram at Delhi and it was not unusual for him to send the money to his family members through drafts. In his statement recorded under Section 313 CrPC the accused appellant admitted having sent Rs.7,000/- which was drawn on SBI Silpukhuri branch. Prosecution is unable to connect this amount with the payments purportedly made to the supplier appellants for supply of butter tins. For sending of such small amounts to his family members criminal liability cannot be attributed to him unless it is proved affirmatively that such amounts were received by him for placing the supply orders with the suppliers.
33. Learned CBI counsel made strenuous submissions to convince me that splitting of the supply orders were done to bring the orders within the financial power of A2. A1 only authorised A 2 to purchase butter locally for the army units in North Eastern Region which was intentionally done for wrongful gain. He also submits that non availability certificate was not obtained from CDS before purchasing butter locally.
34. Opposing the contentions learned counsel for the appellants A1 and A2 argued that the procedure of splitting supply orders to bring the orders under the financial power of the disbursing officer was done to expedite the process of procurement without causing any pecuniary loss to the ex-chequer and the procedure is in vogue in the departments. Learned counsel also argued that it was the prerogative of the DDST to decide to whom the authority is to be given to procure items locally and his decision cannot be called in question. It is also Crl. A. No.38 of 2005 Crl. A. No.39 of 2005 Crl.A. No. 42 of 2005 22 argued that there was scarcity of the butter due Asian Games which compelled A1 to procure butter urgently and therefore, non availability certificate was not obtained from CDS before purchase.
35. It is an admitted position that supply orders for entire quantity was not placed at a time and different orders were issued for different quantities. In many government departments such procedure is in vogue which is usually followed to bring the orders within the financial power of the officer concerned, although, such a procedure cannot be approved, but this is the ground reality which cannot be ignored. Departmental authority should restrict such procedure being followed and issue necessary directions to the officers concerned not to resort to such practice which is likely to open avenues for corruption.
36. In the present case also such a procedure was being followed. In my considered view it was a procedural lapse for which no criminal liability could be attributed. Moreover, ex post facto approval was given by higher authority to the procurement orders and the bills were also approved. There is no evidence that authorities raised any objection in the matter. The same analogy can also be applied for inability of A2 to obtain non-availability certificate from CDS before procurement. Scarcity of butter at that time due to Asian Games might have prompted the officers A1 and A2 to procure butter urgently.
37. On a critical analysis of the entire evidence on record, oral as well as documentary though I have noticed some departure from the usual procedure and the circular Exhibit-221 but I am of the view that it is impossible to doubt the bonafide of the appellants. The entire charges against the appellants rested on circumstantial evidence and the prosecution has failed to prove that the Crl. A. No.38 of 2005 Crl. A. No.39 of 2005 Crl.A. No. 42 of 2005 23 circumstances were such as can be explained only on one hypothesis, namely, that the accused was guilty. Before a presumption against the appellants could be raised, it must be proved that they knew that other suppliers would have charged lesser amounts for the butter so purchased. Though the official of the Polson company claims to have sold the butter to the appellant suppliers at Rs.41/kg but it appears from the correspondence with the army that he was ready to supply butter at Rs.49/kg. But there is no evidence that he agreed to supply the butter on credit basis. The suppliers in the instant case were lowest bidders and they were approved by the Board constituted for the purpose and it was the duty of the Board members to look into these aspects. For their indiscretion the appellants A1 and A2 cannot be saddled with criminal liability.
38. Learned counsel for the accused appellants strongly urged that the prosecution has utterly failed to bring home the charges against the accused persons and the trial court has committed manifest illegality by recording their conviction. It was argued that there was no violation of circular Exhibit-221 by the army officials A1 and A2 and even assuming that there was some non- compliance here and there, there was no dishonest intention on the part of the A1 and A2 and this aspect was totally ignored by the learned Special Judge while recording their conviction.
39. Learned Standing counsel for the CBI on the other hand, submitted that there was blatant violation of the circular by the army officials and the proved circumstances established that the appellants A1 and A2 intentionally purchased huge quantity of rotten butter unfit for human consumption at an exorbitant price for wrongful gain for themselves and for wrongful loss to the Government. Crl. A. No.38 of 2005 Crl. A. No.39 of 2005 Crl.A. No. 42 of 2005 24
40. Adverting to the facts of the case, it has already been noticed that the allegation against the appellants A1 and A2 is that they had purchased huge quantity of butter from the appellants A3 and A5 at an exorbitant price. The appellants A1 and A2 admitted having purchased the butter, but denied the accusations and according to them the butter was purchased as it was scarce at that time due to Asian Games as per requirement of the army units located in North Eastern Region. They had no knowledge that the butter tins were unfit for human consumption and they even asked for returning the damaged butter tins which clearly demonstrates that they had no dishonest intention to defraud the Government. Board was duly constituted and the official decision was taken by the Board and they followed the recommendation of the Board for which they cannot be held liable. For mere departure from the circular Exhibit-221 they cannot be held to have abused their official position and intentionally caused any pecuniary loss to the State ex-chequer or wrongful gain for themselves.
41. Confronted with a similar situation, The Apex Court, in the case of C. Chenga Reddy vs State of A.P. reported in (1996) 10 SCC 193, in paragraph 22 of the judgment has observed as follows:---
"On a careful consideration of the material on the record, we are of the opinion that though the prosecution has established that the appellants have committed not only codal violations but also irregularities by ignoring various circulars and departmental orders issued from time to time in the matter of allotment of work of jungle clearance on nomination basis and have committed departmental lapse yet. None of the circumstances relied upon by the prosecution are of any conclusive nature and all the circumstances put together do not lead to the irresistible conclusion that the said circumstances are compatible only with the hypothesis of the guilt of the appellant and wholly incompatible with their innocence. In Abdulla Mohammed Pagarkar v. State (Union Territory of Goa, Daman and Diu), [1980] 3 SCC 110, under somewhat similar circumstances this Court opined that mere disregard of relevant provisions of the Financial Code as well as ordinary norms of procedural behaviour of government officials and con-tractors, without conclusively establishing, beyond a reasonable doubt, the guilt of the Crl. A. No.38 of 2005 Crl. A. No.39 of 2005 Crl.A. No. 42 of 2005 25 concerned officials and contractors, may give rise to a strong suspicion but that cannot be held to establish the guilt of the accused. The established circumstances in this case also do not establish criminality of the appellants beyond the realm of suspicion and, in our opinion, the approach of the trial court and the High Court to the requirements of proof in relation to a criminal charge was not proper. That because of the actions of the appellants in breach of codal provisions, instructions and procedural safeguards, the Stale may have suffered financially, particularly by allotment of work on nomination basis without inviting tenders, but those acts of omission and commission by themselves do not establish the commission of criminal offences alleged against them."
42. In the instant case also there might have been some departure from the circular by the accused appellants while purchasing butter, but mere violation of the circular without dishonest intention cannot be a ground to hold them criminally liable.
43. In C.K . Jaffer Sharief vs State (Through CBI) reported in (2013) 1 SCC 205 the Apex Court while handing down the order has observed by referring to criminal law by K. D. Gaur as follows:---
"Criminal guilt would attach to a man for violation of criminal law. However, the rule is not absolute and is subject to limitations indicated in the Latin maxim, actus non facit reum, nisi mens sit rea. It signified that there can be no crime without a guilty mind. To make a person criminally accountable, it must be proved that an act, which is forbidden by law, has been caused by his conduct, and that the conduct was accompanied by a legally blameworthy attitude of mind. Thus, there are two components of every crime, a physical element and a mental element, usually called actus reus and mens rea respectively."
44. Having regard to the above observations and having considered the evidence in its entirety I am hesitant to attribute dishonest intention on the part of the accused appellants while purchasing butter.
45. Another grievance of the defence is that the charges framed against the accused appellants were defective. During the trial charges were framed under Section 120B/420/468/465/471 of the IPC against the accused appellants A3 and Crl. A. No.38 of 2005 Crl. A. No.39 of 2005 Crl.A. No. 42 of 2005 26 A5 and separate charges were framed against the accused appellants Brigadier D.A Chansarkar (A1) and Colonel R.K. Khanna (A2) under Section 120B/420 of the IPC and also under Section 13(2) read with 13(1)(d) of the Prevention of Corruption Act. It submitted that no charges of criminal conspiracy under Section 120B of the IPC have been framed jointly against all the accused appellants and in the absence of joint charges of conspiracy the appellants A3 and A5 could not have been tried by the court of Special Judge as envisaged under Section 4 of the Prevention of Corruption Act, 1988 and the entire trial got vitiated. The learned Trial Judge has addressed this contention adequately in his impugned judgment by observing that such defects in charge would not cause any harm to the trial of the case inasmuch as it is a case where public and private persons are jointly tried and the offence which they were tried for were committed in the course of same transactions and that the very compartmentalized approach to the allegations levelled against the accused persons is neither desirable nor permissible. Learned Trial Judge further observed that provisions of Section 215/464 CrPC as well as Section 19(3) of the Prevention of Corruption Act clearly postulates that mere error/defect in the charge would not derail the trial unless such defects/errors has resulted prejudice being caused to the accused. Since no prejudice was shown to have been caused in the present case to the accused appellants, the trial would not vitiate. There is no reason to differ with the opinion rendered by the Trial Judge regarding the defects in the charge.
46. Learned counsel for the appellants also argued by referring to the judgment of the Apex court in Vikram jit Singh Alias Vicky vs. State of Punjab (2006) 12 SCC 306, to contend that where two views of a story Crl. A. No.38 of 2005 Crl. A. No.39 of 2005 Crl.A. No. 42 of 2005 27 appear to be probable, the one that was contended by the accused should be accepted. It is further contended that suspicion, however, grave may be, cannot be a substitute for proof. Arguments cannot be thrown out of consideration. In the present case though the prosecution alleged that the accused appellants violated codal provision but the appellants have offered explanation for each of the circumstances appearing against them. Although they are suspected to have been involved but it is well settled that suspicion is not a substitute for proof. The explanations offered by them cannot be brushed aside and rejected in limine.
47. From all my discussions above and the reasons aforementioned, I allow the appeals preferred by the appellants by setting aside the conviction recorded by the learned Special Judge, CBI, Assam.
48. Consequently, the accused appellants are acquitted and set at liberty forthwith. Bail bond, if any, stands discharged.
49. Send down the LCR forthwith.
JUDGE Rupam Crl. A. No.38 of 2005 Crl. A. No.39 of 2005 Crl.A. No. 42 of 2005