Punjab-Haryana High Court
Gurdev Singh Syan vs State Of Punjab on 15 November, 2017
Author: A.B. Chaudhari
Bench: A.B. Chaudhari
CRM-M-36763 of 2017 (O&M), CRM-M-36999 of 2017, 1
CRM-M-37135 of 2017, CRM-M-37244 of 2017,
CRM-M-36133 of 2017 AND CRM-M-36230 of 2017
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-M-36763 of 2017 (O&M)
Date of decision: November 15, 2017
Gurdev Singh Syan
.....Petitioner
Versus
State of Punjab
.....Respondent
CRM-M-36999 of 2017
Vimal Sharma
.....Petitioner
Versus
State of Punjab
.....Respondent
CRM-M-37135 of 2017
Gurinder Singh
.....Petitioner
Versus
State of Punjab
.....Respondent
CRM-M-37244 of 2017
Gulshan Nagpal
.....Petitioner
Versus
State of Punjab
.....Respondent
CRM-M-36133 of 2017
Harvinder Singh
.....Petitioner
Versus
State of Punjab
.....Respondent
CRM-M-36230 of 2017
Bajrang Lal Singla
.....Petitioner
Versus
State of Punjab
.....Respondent
CORAM: HON'BLE MR. JUSTICE A.B. CHAUDHARI
Present: - Mr. R.S. Cheema, Senior Advocate with
Mr. A.S. Cheema, Advocate
for the petitioner (in CRM-M-37135 of 2017).
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Mr. R.S. Rai, Senior Advocate with
Mr. Anurag Arora, Advocate
for the petitioner (in CRM-M-36763 of 2017).
Mr. J.S. Bedi, Senior Advocate with
Mr. S.S. Brar, Advocate
for the petitioners (in CRM-M-37244 of 2017 and
CRM-M-36230 of 2017).
Mr. P.S. Ahluwalia, Advocate
for the petitioner (in CRM-M-36999 of 2017).
Mr. D.S. Sobti, Advocate
for the petitioner (in CRM-M-36133 of 2017).
Mr. Atul Nanda, Advocate General, Punjab with
Ms. Diya Sodhi, Assistant Advocate General, Punjab.
****
A.B. CHAUDHARI, J
By this common order, all the above noted six petitions
would be disposed of.
In these petitions for anticipatory bail, the subject matter is
FIR No.10 dated 17.08.2017, registered under Sections 406, 420, 467,
468, 471, 477A, 120-B of Indian Penal Code, 1860 and Section
13(1)(d) read with Section 13(2) of Prevention of Corruption Act,
1988, at Police Station Vigilance Bureau, Flying Squad I, Punjab,
Mohali, by Shr. Varinder Singh Brar, PPS, Assistant Inspector General
of Police, Vigilance Bureau, F.S.-I, Punjab, Chandigarh against eight
accused shown in column No.7 in the FIR.
The sum and substance of the FIR in question is that
during the period of about last 7/8 years, higher authorities in the
Punjab Government, Engineers from Irrigation Department and other
officers by misusing their official position/power connived with
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Gurinder Singh contractor and indulged into allocation of works worth
`1,000/- crores to the said contractor alone that too on the rates more
than 50% of the departmental rates. The object of e-tendering was to
maintain mutual secrecy in the Department and the bidders but the
officers of the Department concerned, Engineers and all those, by
using their official power hatched criminal conspiracy with the said
contractor and gave rise to the total fraud causing severe loss to the
Government of Punjab. It is stated that pre-bid meeting was made
essential for allocation of major job works so that all the bidders in the
field be introduced to each other and their mutual deals be got struck
down and the job work may be allocated to Gurinder Singh contractor
on his desired rates by forming a cartel. In a major contract for laying
if pipes in water logged area, rules were violated in order to sideline
other A-1 Class contractors on panel of the Department in order to
throw them out of the competition and as such, the tender and its terms
and conditions were tailor-made by keeping in view and mind the
experience and annual turn-over of Gurinder Singh contractor so that
the said contractor alone who would be successful in getting all the
works. The conspiracy was made in such a manner that finally the said
contractor would alone be the successful bidder that too at higher rates,
thereby causing unjust enrichment to the contractor and causing loss to
the Government of Punjab. The officers of the Department had hatched
plan to allocate even small amounted works to Gurinder Singh
contractor by clubbing into single. Consequently, works in far off
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places in various districts and divisions were deliberately clubbed to
make one big amounted tender with a pre-planned strategy to allocate
the entire works to Gurinder Singh contractor that too on higher rates.
In some of the tenders of works having DNIT, the accused persons had
played trick deliberately by not mentioning the actual work, quantum
of work so also the required technical specifications as a result of
which, the possible proposed contractors who could have participated
were deprived of the opportunity of knowing the details of DNIT and
could not participate. All that was done with a view to ensure
allocation of works to Gurinder Singh contractor alone. The net result
of the entire unholy activities on the part of the accused persons was
that Gurinder Singh contractor whose annual turn-over was only `4.74
crores in the year 2006-2007 suddenly increased to `300 crores in
2016-2017 without any justification whatsoever. That is substantiated
by the fact that Gurinder Singh contractor gained countless movable
and immovable properties from the illegal income received as a result
of frauds, forgery etc. All the eight accused persons including the said
contractor have acted in collusion with a view to have wrongful gain to
them and cause wrongful loss to the Government of Punjab.
The Water Drainage Administration and Kandi
Administration of Irrigation Department did not provide any
information regarding funds received from the Centre in previous
years despite the same was sought repeatedly, thereby showing total
non-cooperation during investigation. Most of the works for which
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funds were received from Centre in the Water Drainage
Administration of Irrigation Department were deliberately allotted to
Gurinder Singh contractor by hatching conspiracy. During 2014-2015,
job work was `200 crores out of total project of `350 crores including
the projects belonging to water logged area that was allotted to the said
contractor with an average rate @ 10% above than CSR+SP and the
remaining small work allocated to other contractors on CSR+SP or
lesser rates.
Executive Engineer-Gulshan Nagpal was in-charge when
two works about `8 crores and `5.5 crores in 2011-2012 were
allocated to the said contractor. At that time, DNIT did not provide for
any quantum of the job works or technical specifications which were
done deliberately to favour the said contractor. In both the said works,
conditions of experience in approved Standard Bidding Document
(SBD) as per CVC guidelines were deliberately moulded and tailor-
made in order to suit Gurinder Singh contractor. In that behalf,
condition for experience of similar job work value not less than
80%was illegally changed and in its place experience of work of value
not less than 35% was substituted and the reason was that the said
contractor was having only that experience. The attendance in pre-bid
meeting was made essential in clear violation of SBD with an intention
to know the final mutual deal of contractors by violating the mutual
secrecy. As a result of this conspiracy, in pre-bid meeting for the said
two works, finally only Gurinder Singh contractor stood left as a single
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bidder and then he took full advantage of siphoning out the money of
the Government. Not only that the experience certificate of the
contractor indicate that he had done the job works worth `13.85 crores
and that he had excavated 5 lakh cubic earth work in one month, which
was ultimately found to be false and incorrect as per bills and records.
However, the said contractor made full use of the said certificate to his
benefit.
Another major project of the Division under Mr. Gulshan
Nagpal Executive Engineer was allocated to the said contractor. Mr.
Nagpal clubbed the work in such a manner that all other major
contractors except Gurinder Singh contractor became ineligible as they
could not meet with conditions of works, ratio, annual turnover in
DNIT, experience etc. and as such, single tender was made to `39.86
crores and the contractor used the experience of such work value of
`40 crores in order to bag the said major contract. Mr. Gulshan
Nagpal, Executive Engineer, Mr. Paramjit Singh Ghumman,
Superintending Engineer, Gurdev Singh Sian, Chief Engineer, were
entrusted the work, though, such villages (22 villages) were far away
situated and under various divisional offices, but since there was a
calculated move to allot the work only to Gurinder Singh contractor, a
major tender worth `75 crores was floated. However, in the tender
documents, no quantum of work was mentioned so also the technical
specifications were not clearly stated and in place of giving name of
villages in the column of place of work, District Muktsar, Faridkot and
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Fazilka were only mentioned with a view to make suppression. As a
result of this conspiracy, keeping the discrepancies, the other
contractors were deprived of participation. In violation of SBD
documents, the attendance was made compulsory at pre-bid meeting
with a specific intention and mens rea to know the details about other
prospective bidders. The officers had taken contradictory decisions in
violation of CVC and SBD so also the instructions of the committee
and so also to know the status of the contractors in relation to
particular experience of work. The Tender Overseeing Committee
(TOC) had, on 13.02.2014, enlisted conditions regarding the same
related projects, but after 7 months, on 30.09.2014 when the actual
tender was to be invited for `75 crores, the terms and conditions and in
particular condition No.3 were totally ignored from the said memo
dated 13.02.2014. Mr. Gurdev Singh Sian, Chief Engineer, the
signatory on his own acted in connivance with the said contractor and
subordinate officers and changed the terms and conditions in order to
suit the capacity and experience of that contractor. The condition
regarding 80% costs of similar work was changed to 50% costs,
bringing the experience to `38 crores instead of `60 crores contrary to
condition fixed by the Committee, CVC, with a view to bring only that
contractor. Because of the said express meet of the officers and the
contractor's conspiracy, the allocation was done at 17% rates
exceeding CSR+SP which works out to `14 crores increase and that is
the straight financial loss to the Government of Punjab.
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Another Executive Engineer, Mr. Bajrang Lal Singla
joined hands with the said contractor along with other officers in
relation to the costs of pipes and in the process, the Government of
Punjab was put to huge loss in the matter of purchase of pipes that is
more than 2.5 times of the actual market price. The works worth `100
crores of Kandi Canal Administration under Harvinder Singh and
worth `100 crores belonging to Shahpur Kandi Hydel channel also
given to him in the same manner inasmuch as tailor-made terms and
conditions were inserted by the officers in connivance with the said
contractor resulting into ineligibility of the other contractors of Punjab
State leaving Gurinder Singh contractor alone as eligible. All that was
done by breaching the secrecy of tendering and it is astonishing to note
that difference of `1 only was shown in the financial bids and in not
one, but in number of contracts.
The internal vigilance Administration of the Department
played a murky role and its role is wholly suspicious obviously to
favour the contractor and protect these officers and to suppress the sins
committed by all of them together in causing huge loss to the
Government of Punjab. Similarly is the case with the work of Banur
Wier.
After lodgment of the FIR, investigation started. All the
petitioners who have been named in the FIR have approached this
Court for grant of anticipatory bail. This Court issued notices to the
respondents and respondents accordingly, filed their respective
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detailed replies, documents etc. The petitioners were also given
opportunity to file rejoinder(s) etc. which they have accordingly, filed
along with documents. The parties have been given full opportunity to
produce all the documents and affidavits they desired. Hearing
commenced before this Court for examination of each case on its own
merits. The common facts have also been noted down along with
relevant documents.
CRM-M-36763 of 2017-Gurdev Singh Syan
Mr. R.S. Rai, learned Senior Advocate for the petitioner
(in CRM-M-36763 of 2017) made the following submissions:-
(i) The petitioner was working as Chief Engineer Drainage
only from 10.02.2014 to 31.03.2015. The project in
question had actually started after his retirement from the
Government service. The project, namely to clear the water
logging in 22 villages in District Muktsar, was allotted to
contractor-Gurinder Singh after the entire procedure was
scrupulously followed and the said contractor having been
found to be the only successful bidder. The petitioner alone
was not the authority to undertake the process of tendering
and thereafter, allocating the works to the said contractor.
On the contrary, senior and higher officers were involved
at different stages in the matter of process of tendering for
the said work falling under the Irrigation Department of
Government of Punjab. On 23.09.2014, a meeting in that
connection was presided over by the Hon'ble Chief
Minister, Punjab and specific decision was taken with
regard to the works pertaining to drainage Department and
the issue regarding work of Shahpur Kandi drainage was
deliberated and it was decided that the works could be got
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executed by calling the tenders with a condition that the
executing agencies/contractors would, in addition, do the
maintenance work for the period of 5 years after
completion of the work. Thus, the highest authority of the
State, namely Chief Minister had issued special directions
in relation to the said work and the petitioner had hardly
any role to play;
(ii) The work completed by the said contractor has not been
found fault with nor there is any remote allegation about
any lack of supervision or as the case may be on the part of
the petitioner or the Department as such in the matter of
completion or execution of work. Even the condition
regarding free maintenance for 5 years would continue to
operate till the end of 5 years. The estimated value of `75
crores went upto `115 crores due to escalation, but then,
the present petitioner had nothing to do with the said part
of escalation. The nature of the work that was allocated
was obviously of the Irrigation Department and therefore,
it is wrong to say that laying down the pipes for pumping
out the water logged area would not be the work of the
Irrigation Department. The total area for which the project
was meant to benefit was huge. At any rate, it is not even
the case of the prosecution that by payment of bribe or as
the case may be to the petitioner or others or for any
extraneous consideration, the contract came to be awarded
to the said contractor;
(iii) In so far as the principal allegation made by the
prosecution about the purchase rate for the pipes required
for the purpose of execution of the said contract, the
petitioner can hardly be roped in looking to his limited role
as Chief Engineer. As per the procedure, the quotations
were obtained by four Executive Engineers. The
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verification of the said quotations was duly made by the
concerned Superintending Engineers. Both the Executive
Engineers as well as Superintending Engineers had after
verification of the quotations certified about it and in token
thereof have also signed the certificate about the
genuineness of the quotations and the rates therein and a
certificate is also filed on record. The role of the petitioner
was to accept the said certificate and he having been
satisfied about the genuineness of the quotations obtained
and certified by four Executive Engineers and
Superintending Engineers, no act of mala fide can be
attributed to him much less any criminal angle could be
given colour by the State;
(iv) With reference to Annexure R-16 with the reply, he
submitted that the petitioner had given reply on 28.10.2014
to the letter dated 27.10.2014 (Annexure R-16) that subject
in question was already at Sr. No.3, which could be
checked and therefore, the allegations levelled in Annexure
R-16 were factually incorrect. The Advisor did not counter
the letter/reply dated 28.10.2014 of the petitioner;
(v) The allegation that 17 crores was inflated price is factually
baseless and cannot be even prima facie accepted;
(vi) In so far as the requirement of 80% in the matter of
eligibility condition is concerned, there is a clause
empowering the authority to bring down the requirement of
80% since the same made no difference, but on the
contrary more number of participants had participated in
the tender process. It is, therefore, wrong to say that there
was any move to favour the contractor as alleged by the
prosecution;
(vii) The submission made by the State that the term 'similar' in
relation to the provision of eligibility was omitted is not
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correct. The dictionary meaning of 'similar' has been
referred to by the learned Senior counsel for the petitioner
as partial resemblance only or resemblance, while the
meaning of 'identical' is used to describe a thing that is the
same as something else in all respects and doing the same
or exactly alike or exactly the same";
(viii) He then submitted that the entire prosecution allegations if
seen carefully will show that there is no specific role
attributed to the petitioner. The petitioner has retired from
service and pursuant to the interim order made by this
Court is still ready and willing to join investigation but the
prosecution is not interested in asking the petitioner to join
investigation but to put him under arrest as the change of
Government in the State of Punjab has led to the lodgment
of FIR in question and the prosecution agency wants to
take revenge against the petitioner and others. He relied on
the decision in the case of Siddharam Satilingappa
Mhetre versus State of Maharashtra and others,
2011(1) RCR (Criminal) 126, Paras 96 and 122 thereof and
prayed for confirmation of the interim order made by this
Court.
CRM-M-36230 of 2017-Bajrang Lal Singla and
CRM-M-37244 of 2017-Gulshan Nagpal
Mr. J.S. Bedi, learned Senior Advocate for the petitioners
(in CRM-M-36230 of 2017 and CRM-M-37244 of 2017) made the
following submissions:-
(i) The petitioner-Bajrang Lal Singla was working as
Executive Engineer, Headquarters while the petitioner-
Gulshan Nagpal was working as Executive Engineer
(Field) and was posted at Giddarbaha from November
2010 to March 2014 and, thereafter, from July 2014 till
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date. The process of e-tendering in the subject matter was
undertaken at the behest of the Hon'ble Chief Minister of
the State of Punjab. The project related to the clearance of
water logging in 22 villages in District Muktsar and the
contract was ultimately allotted to the contractor Gurinder
Singh. None of these two petitioners were the authority to
undertake the process and on the contrary, the senior
higher officers were involved at different stages in the
matter of e-tendering and allotment of work in the
Irrigation Department of the Government of Punjab. The
Hon'ble Chief Minister in the meeting dated 23.09.2014
had ordered specific decision to be taken in relation to the
Department and the follow up was accordingly, made as
per the decision made by these higher authorities. Both the
petitioners have nothing to do with the actual allotment of
contract to the contractor Gurinder Singh. To repeat, the
highest authority of the State and the other authorities had
issued special directions and both the petitioners did not
have any role to play much less material role except for
making the clerical work of obtaining quotations and then
certifying the same;
(ii) In so far as the eligibility conditions of the contract in
question are concerned, the same were duly seen by the
higher in-charge officer and it is only thereafter, the e-
tenders were opened and allotments were made. Both the
petitioners did not have anything to do with the verification
and applicability of the eligibility conditions imposed in
the tendering documents. It is, therefore, wrong on the part
of the prosecution to put any blame on the present
petitioners who were not involved at that stage. The
allegation that the conditions in the DNIT were altered to
suit the said contractor are again false and baseless
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inasmuch as there is no evidence to that effect against the
petitioners looking to the status that was held by the
petitioners. The allegation regarding consolidation of
various divisions and districts to bring in one tender is
again unconcerned with the present petitioners inasmuch as
the decision to have a joint tender was itself taken in the
aforesaid meeting that was held under the auspices of the
Hon'ble Chief Minister. At any rate, the conditions in the
documents could be well be amended in order to enlarge
the scope of the contractors participating and therefore, it
cannot be said that there was any malpractice or criminal
intention on the part of any of the petitioners. The said
contractor was the lowest and as such, the contract was
bound to be allocated to the said contractor, which was
done;
(iii) The estimates for purchase of pipes from the market were
to be collected by the concerned Junior Engineers and Sub-
Divisional Officers by name Sudesh Kumar, Shashi
Bhadara and Amar Gupta. They had collected the
quotations from the market, but surprisingly, they have not
been made accused in the FIR in question. The quotations
collected by them were thereafter, certified by the
Executive Engineer-Kulwinder Singh, Sanjiv Gupta and
Pawan Kapoor after due verification and were thereafter,
placed before the petitioners who were ultimately placed
before the Chief Engineer who approved them. None of the
Executive Engineers above stated have been made accused
in the FIR. The petitioners had only verified and sent the
quotations to the Chief Engineer who ultimately approved
it. The prosecution has been selective in making the
persons as accused in the present FIR as stated above. The
persons namely Junior Engineers and Executive Engineers
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have not been made accused in the FIR. The action is mala
fide and only because of the change in the Government.
Inviting my attention to the replication filed by Bajrang Lal
Singla, learned Senior counsel contended that the
comparative chart, if carefully perused, does not indicate
anything which could be said to be objectionable;
(iv) In so far as the acquisition of the pipes is concerned, he
submitted that rates were given by the manufacturers,
namely Gwalior Polypipes Limited and Rex Polyextrusion
Ltd. and after that comparative rates were prepared which
were accordingly, forwarded;
(v) Continuing the argument for the petitioner-Gulshan
Nagpal, Mr. Bedi contended that the allegation about the
clubbing of the contract into single to suit the tailor-made
conditions for the contractor have no concern with the
present petitioner-Gulshan Nagpal as essentially, the same
was not done by the petitioner-Gulshan Nagpal. He then
submitted that the allegations made by the prosecution
about the receipt of amount of 16 and odd crores rupees by
the contractor are wholly incorrect as the said amount was
received by the contractor for number of pump houses upto
75 which were installed for the project. According to him,
the said amount was not received towards maintenance for
5 years as per the tender conditions. The amounts were not
received for maintenance of pipes and at any rate, the
estimate itself was revised upto `115 crores by the
Government from `75 crores. Mr. Bedi, then contended
that in so far as the quotations obtained from Jain Pipes are
concerned, the petitioners have no concern therewith as
quotations were not obtained by the petitioners. The
allegation about the forgery about the quotations of Jain
Pipes do not relate to the petitioners;
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(vi) The prosecution's allegation that Gulshan Nagpal had
supplied information about the contracts and also
unofficially communicated the tender information to the
contractor are incorrect and at any rate, the same would
make no difference assuming the prosecution allegations
are taken at face value. According to him, petitioner-
Gulshan Nagpal cannot be accused of sharing the secret
information of the Department regarding contracts and
therefore, all the allegations to that effect made by the State
are not substantiated. Learned Senior counsel then
contended that both the petitioners have not at all been
called by the prosecution agency for interrogation or for
joining investigation, though, both the petitioners are ready
to join investigation. The prosecution agency is not
interested in interrogation but is only interested in making
the arrest, which cannot be justified. He then contended
that at any rate, the entire case of the prosecution is based
on documentary evidence, which are in their storage and
therefore, custody of the petitioners is not at all required.
The reason is, any disclosure made by the petitioners
would obviously lead to the documentary evidence, which
is in their possession. He then submitted that the petitioners
are ready and willing to join investigation and therefore,
the interim order deserves to be confirmed.
CRM-M-36133 of 2017-Harvinder Singh
Mr. D.S. Sobti, learned counsel for the petitioner (in CRM-
M-36133 of 2017) made the following submissions:-
(i) The petitioner was working as Chief Engineer with the
Irrigation Department of the Government of Punjab and
retired in April 2015. He was working as such from
December 2010 to 30.04.2015 as Chief Engineer. The
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prosecution allegations pertain to Shahpur Kandi Hydel
Construction Canal in the District of Pathankot. In so far as
the petitioner is concerned, the allegations about making
pre-bid meeting compulsory are nowhere concerned as the
said meeting was not attended by the petitioner at all. He
then submitted that even otherwise, no fault can be found
out with the said meeting as the object thereof was to
explain the conditions to the participants and clarify the
doubts, if any. At any rate, the pre-bid meeting was made
compulsory by the committee and as such, the petitioner
cannot be blamed for the said alleged irregularity;
(ii) The petitioner cannot be held responsible for the alleged
breach of CVC guidelines or alleged breach of conditions
provided for eligibility by the contractors. He then
contended that the allegations pertaining to the e-mails or
calls do not relate to the petitioner at all. The lowering of
the eligibility conditions from 80% in fact, was made to
increase the participation of the contractors and therefore,
it is wrong to suggest that the same was done to favour
Gurinder Singh contractor. In relation to the laying of pipes
in the water logged area is concerned, the same was laid
from March 2014 to April 2016 with 414 kms of the pipes.
The rates of pies were collected from the open market by
the concerned Executive Engineers, Superintending
Engineers and Junior Engineers upon their certification
about the quotations and the rates therein, the further
process of approval was undertaken. The petitioner cannot
be blamed, if at all there was omission on the part of the
subordinate employees;
(iii) Attention of this Court was drawn by the learned counsel
for the petitioner in relation to the inquiry report (Annexure
P-2) that was made, wherein, the petitioner was exonerated
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from the subject matter and therefore, in the wake of
vigilance having exonerated the petitioner and the reply
(Annexure P-17) that was given by the petitioner, there
was absolutely no reason for the Government to lodge FIR
against the petitioner;
(iv) In so far as the alleged forgery of tender related to Jain
Irrigation System Ltd. quotation is concerned, the learned
counsel for the petitioner vehemently contended that the
charge itself is false and bogus. The alleged statement of
the officer of Jain Irrigation System Ltd. that he had never
given the quotation is again false. If the document is
carefully seen it shows that it was downloaded. It cannot
have a signature as it is an attachment with the document.
The rates quoted in the said quotation were never inflated.
The petitioner acted bona-fidely. The State Government
has made statement for Kamakar Singh for continuation of
interim order for 4 weeks. The petitioner is also entitled to
the relief on parity. The petitioner has not committed any
offence. The petitioner is ready to join investigation, but
the investigating agency is not interested in allowing him
to join investigation. Since after the interim order was
passed by this Court granting ad interim anticipatory bail,
the petitioner was never called for interrogation, which
itself shows that the agency is not at all serious about the
investigation, but it is out of revenge, the petitioner is
being hounded. The petitioner is still ready and willing to
join investigation. Hence, interim order made by this Court
needs to be made absolute by confirming the interim order.
CRM-M-36999 of 2017-Vimal Sharma
Mr. P.S. Ahluwalia, learned counsel for the petitioner (in
CRM-M-36999 of 2017) made the following submissions:-
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(i) The petitioner-Vimal Sharma was actually posted as
Supervisor at Hoshiarpur and was never posted at
Chandigarh where all the activities in relation to the
alleged allegations in the FIR have been made. The
petitioner is nowhere concerned with the alleged crime in
question as he is a Class-III employee and did not have any
capacity or status to decide the award of tender or the
execution thereof. He was simply working as a Supervisor
and has nothing to do with the e-tendering or allotment of
tenders to the contractor. Since his Headquarters was at
Hoshiarpur, he was merely supposed to supervise the work
being undertaken at the project places;
(ii) The allegation that he had repeated talks with the said
contractor and his employee Rakesh are of no consequence
as the petitioner being a supervisor was bound to interact
with them in the matter of execution of the work for
numbers of years. There is nothing wrong even if the
petitioner had made calls or received calls from the said
contractor or his employee Rakesh. The statement that the
petitioner had never worked made in the application for
anticipatory bail before the trial Court need not be viewed
as any evidence of complicity of the petitioner as the same
could be out of poor drafting of the application.
Nevertheless this Court is entitled to find out the real
intention in the matter rather than giving importance to a
statement made in the application for anticipatory bail
before the trial Court. He, then submitted that the petitioner
being a Class-III employee should not be harassed. The
petitioner is ready to join investigation. However, the
investigating machinery has not interrogated the petitioner
nor is ready to join him in the investigation. Therefore, the
interim order made in favour of the petitioner deserves to
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be confirmed as the petitioner has committed no crime he
being a Class-III employee. He, therefore, prayed for grant
of anticipatory bail.
CRM-M-37135 of 2017-Gurinder Singh
The petitioner-Gurinder Singh is the contractor who seeks
anticipatory bail in FIR in question.
At the outset, there is a preliminary objection raised by Mr.
Atul Nanda, learned Advocate General, Punjab stating that the
petitioner had earlier approached this Court by way of CRM-M-28263
of 2017, decided on 09.08.2017. That petition was dismissed by this
Court for the reasons stated in the said order. Referring to the reasons
recorded by the Coordinate Bench of this Court in the said order, he
submitted that the Court accepted the submission made by the State
that in case, prayer for 7 days notice was allowed, the petitioner would
not cooperate with the inquiry officer, which would hamper the
inquiry/investigation. According to the learned Advocate General,
since the order was not challenged in the higher Court, the said finding
would bind this Court and consequently, the present petition for
anticipatory bail would not be maintainable. He also contended that the
factum of filing of the petition and the said order has not been
disclosed in the present petition and therefore, there is a suppression
which ought to result into dismissal. He cited several decisions.
Per contra, Mr. R.S. Cheema, learned Senior counsel for
the petitioner-Gurinder Singh submitted that the order by the
Coordinate Bench of this Court was made in a petition in which relief
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was sought for 7 days prior notice and admittedly, at that stage, no FIR
was registered. He, further submitted that the finding is that if 7 days
prior notice was permitted, the petitioner would not cooperate with the
inquiry officer. That is not relevant to the present matter.
Having heard learned counsel for the rival parties on the
preliminary objections raised by the learned Advocate General and
upon perusal of the said order dated 09.08.2017 and the nature of the
said petition, at the outset, I find that at that stage, no FIR was
registered and the petition was limited to claiming 7 days prior notice
before arresting him. As against that the present petition is for grant of
anticipatory bail upon registration of the FIR, namely FIR No.10 dated
17.08.2017. I, therefore, find that the preliminary objection raised by
the learned Advocate General cannot be accepted. The non-reference
to the said petition and the order dated 09.08.2017 made by this Court,
in the present petition, consequently would make no difference and
would not amount to suppression of material facts. None of the cited
decisions are therefore, relevant. Hence, this Court proceeds to deal
with these matters on merits.
Mr. R.S. Cheema, learned Senior counsel for the petitioner
(in CRM-M-37135 of 2017) made the following submissions:-
(i) The FIR in question lodged by the State of Punjab is out
and out an exercise of mala fide nature and because of the
change in the Government in Punjab. The petitioner-
contractor has been targeted merely because he worked as
a Contractor during the regime of the earlier Government.
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The political fight between the earlier Government and the
present Government should not result into harassment to
the present petitioner who has been working as a
Contractor without any blemish. There is no complaint
about the quality of his work even in the present FIR and
therefore, the allegations made by the prosecution are only
on the basis of figment of imagination. According to him,
the persons who have been made accused including the
present petitioner in the FIR have been selectively made
and, though, other persons are also allegedly involved in
the works, many of them have not been made accused in
the present FIR. No expert committee was ever constituted
to find out the quality of the work done. Accountant
General had made an audit, but there is no objection made
about payment/excess payment or any criminality in the
tendering or execution of work or regarding payment made
to the contractor. The State has not taken any steps to
blacklist the contractor. The substance of the allegations
made in the FIR mostly pertain to civil wrong and no
criminality as such is involved;
(ii) Learned Senior counsel then contended that from 2007 to
2017 for the last 10 years, the petitioner-contractor was
awarded almost 150 works, which he completed and out of
them, 9 works have been picked up for the present actions;
(iii) The Special Chief Secretary to Government of Punjab in
fact, held an inquiry in the matter and had made
recommendation, on 26.05.2017 that everything was
inquired into and no abnormal, irregular or criminal act
was found in the contracts in respect of which FIR has
been lodged. Despite the said inquiry having been held and
finding recorded by the Special Chief Secretary to
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Government of Punjab, the present FIR came to be lodged
only out of spite;
(iv) In so far as the process of award of contracts under the
tenders are concerned, the entire procedure was
transparently followed, namely of e-tendering and the
lowest bidder, namely the petitioner was found to be
eligible contractor for the benefit of the State and
accordingly, contracts were awarded to the petitioner as per
CSR/Departmental rates and CVC guidelines in the matter.
The last CSR was revised in the year 2014. There is no
allegation about any excess payment qua the petitioner. In
so far as the pipes required for laying under the ground for
making way for the water logged area is concerned, the
petitioner-contractor had purchased pipes from the
Government, which were lying with the Government,
worth `1 crores and it is not that, pipes which were suitable
were not utilized. Large numbers of pipes were in
dilapidated condition as stated in the letter itself and
obviously, such pipes could not have been utilized for
laying under the ground which could have spoiled the
quality of the work;
(v) The petitioner was fully eligible to bid for the tender and
the allegation about the tailor-made conditions by the
officers of the Department are all false and baseless.
Similarly the allegations about the clubbing of the
contracts into single for allegedly benefiting the petitioner-
contractor are also false and misleading. On the contrary as
ordered by the Hon'ble Chief Minister, joint common
tender was the method to be adopted for tendering;
(vi) The allegations that pre-bid meetings could not have been
held, does not per se result into criminal liability as such.
At any rate, pre-bid meetings were for the benefit of the
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State and for explaining to the contractors participating in
the process. The conditions in the tender documents could
be modified or deleted and there was no straightjacket
formula as such even by CVC;
(vii) The allegations by the State that heavy cash was withdrawn
in April 2017 in the sum of almost `61 crores from the
Bank have no relevance whatsoever in the present matter.
The allegations that e-bid can also be managed are again
baseless and making a single bid is no act of criminality for
which anybody could be prosecuted in the manner that is
being sought to be done. The exchange of e-mails with the
officers is an act in the routine course and nothing
suspicious can be said about it. Even assuming as per the
allegations any excess amount was claimed or paid to the
contractor that by itself would not lead to any criminality
and alternative remedy could be adopted rather than
criminal investigation;
(viii) Learned Senior counsel then contended that even the
petitioner had given several items at very lower rates and
therefore, it cannot be said looking to the nature of
business transactions that there was any criminal
conspiracy as alleged;
(ix) In so far as the price of pipes is concerned, the same is
because of repeated change in the market conditions and
the rising prices of 'Rasin', which is raw material for
manufacturing of pipes. The petitioner is ready to join
investigation but the investigating agency has not at all
bothered to call the petitioner for investigation. The
investigating agency does not want to investigate in real
sense but wants the petitioner arrested. That is the only
object for which the opposition is being made by the State.
The custody of the petitioner as such is not at all necessary
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all the more so because entire documentary evidence is
with the State and its machinery. Finally, Mr. Cheema
prayed for confirmation of ad interim order made by this
Court.
ARGUMENTS BY RESPONDENT-STATE-LEARNED
ADVOCATE GENERAL, PUNJAB
Mr. Atul Nanda, learned Advocate General for Punjab
addressed his arguments in reply to all the above petitions. He made
following submissions:-
(i) Merely because this Court had made an interim orders
granting ad interim anticipatory bail on the first date of
hearing, it cannot be said that the petitioners can be
allowed to take advantage thereof at the time of final
adjudication. The ad interim orders were opposed by him,
but then there was no material before the Court on the very
first date on affidavit from the State of Punjab and
therefore, in the absence of any reply/affidavit, this Court
had made ad interim orders. But that does not mean that ad
interim orders were made on merits of the matters and
therefore, the petitioners cannot seek any advantage
therefrom. He then submitted that the nature of the
evidence allegedly being of documentary in the custody of
the Government cannot be a ground for claiming
anticipatory bail as such. Even oral evidence is required to
be collected. As a matter of fact, according to him, the
prosecution is yet to get large number of documents
because of non-cooperation of the concerned employees
including some of the petitioners also. Since enough
evidence has been found at this stage, only the petitioners
have been named as accused persons. The objection that
others have not been named as accused persons cannot be
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considered as during the course of investigation, those who
are found in complicity would also be made accused, but
such a ground is not available to the petitioners. Similarly
taking advantage of the ad interim orders without having
on record any reply/affidavit of the Government and
making a statement that the petitioners have not been
interrogated by the investigating agency is also
misconceived as according to the prosecution, without the
custody of the petitioners, it is wholly impossible to make
any effective and fruitful investigation as most of the
evidence is in the knowledge of the petitioners namely
documentary as well as oral. The information on the
documents will also be required to be elicited from them
which they are not going to disclose without their custodial
interrogation;
(ii) It is a well settled legal position that the detailed discussion
of the evidence on merits in the matter of anticipatory bail
should be avoided as the Court would only find out
whether there is a prima facie case or not. In so far as
economic offences or the offence under the Prevention of
Corruption Act are concerned, those offences are class by
themselves and are required to be dealt with considering
the fact that such offences affect the public money. The
angle of conspiracy between the conspirators and in this
case, the higher officers of the Government hand in hand
with the contractor cannot be pieced together unless
custodial interrogation is permitted. According to him, the
existence of conspiracy is only within the knowledge of
accused persons and cannot be revealed unless they are
subjected to custodial interrogation. In the present case,
according to him, prima facie, the state exchequer has been
put to huge losses in crores but then the process of
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investigation is such that the quantum of the losses caused
because of the corrupt practices and conspiracies can be
found only when the investigation progresses with the
custodial interrogation of the concerned accused persons;
Broadly speaking according to learned Advocate
General evidence to show that every time conditions were
tailor-made to award the contract only to Gurinder Singh is
prima facie proved by the prosecution. That other possible
contractors who could participate were thus, forbidden by
higher officers of the Irrigation Department in connivance
with the contractor Gurinder Singh. The e-mails shared by
Gulshan Nagpal with the contractor and his agents clearly
reveal that well in advance the entire secret information
about the preparation of the conditions in tender notice etc.
were being monitored by the contractor Gurinder Singh.
Even the DNIT of works were being drafted and finalized
by the contractor Gurinder Singh along with Bajrang Lal
Singla, the other accused which is evident from Annexure
R-1 with the affidavit filed by the State in CRM-M-36763
of 2017. Mr. Nagpal even issued work experience
certificates for the contractor fakely showing the build
work capacity of the contractor. Huge violations of PWD
Code Rules were made vide Paras 32 and 33 of the said
affidavit. Tailor-made conditions were inserted in the
tenders in violation of the rules and instructions as detailed
in reply Para 37(C)(c). Mr. Gurdev Singh Syan was the
party to TOC document himself who violated the
guidelines in order that the work was finally allotted to
Gurinder Singh only. The trio of Mr. Gurdev Singh Syan,
Mr. Gulshan Nagpal and Mr. Bajrang Lal Singla the higher
officers of the Irrigation Department worked together in
connivance with the contractor for all these years ensuring
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that the contracts were only awarded to Gurinder Singh
contractor. During the tenure of Gurinder Singh Syan
works more than `200 crores were allotted to the
contractor Gurinder Singh while during the tenure of
Harvinder Singh, Chief Engineer, contracts of more than
`350 crores were allotted to Gurinder Singh. He then
submitted that Gulshan Nagpal and Bajrang Lal Singla
shared the entire internal secret information even before
the finalization of tender and the difference which would
be indicated in the tender and accordingly, as per those
instructions and information, the contractor filed his bid
which was nothing but a clear conspiracy in connivance
with requisite mens rea to have all the contracts won by
Gurinder Singh contractor only and then to have him
benefitted at the cost of public money in multiple times
profit which contractor was not at all entitled to and thus,
the contractor has practically looted the public exchequer
or public money of the Government of Punjab in
conspiracy with these higher officers;
(iii) Inviting my attention to the CVC guidelines, which were
read over to the Court, he submitted that the same were
adopted by the TOC committee and Gurdev Singh Syan
was the member of the committee, who signed the minutes.
He then submitted that the word 'similar' was dropped from
the relevant tender documents prescribing terms and
conditions or eligibility and was not defined. The entire
exercise of the officers who are some of the petitioners was
done to make tailor-made conditions for suiting the
eligibility of the contractor. The conditions in the tender
documents were drafted and crafted in such a manner that
Gurinder Singh contractor alone would be ultimately
successful in bidding the contract by keeping away the
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other participant contractors who would not be able to
satisfy the requisite conditions. There was change of the
conditions deliberately made with the criminal intention to
make Gurinder Singh as the only contractor who would
then get the contracts in collusion and in conspiracy with
the officers who are the petitioners before this Court;
(iv) The trio as aforesaid had in tandem clubbed the works
from various divisions and districts making a single
contract with a definite criminal intention to see that the
contracts are awarded only to Gurinder Singh. By clubbing
the contracts from various divisions and districts which are
at far off places, i.e. more than 80 kms, for which the other
contractors could have bid in the first place were deprived
of. Secondly, the rates given by Gurinder Singh contractor
were such that huge losses in crores were caused to the
State. There was a criminal intention in clubbing into
single tender which is evident from the fact and it was fully
within the knowledge of the contractors and officers that
Gurinder Singh alone would not be able to complete the
huge work at far off places but would sublet the contracts
to others. According to him that had actually happened and
what is clear from the records is that without any
permission or in the absence of any permissive clause in
the contract, Gurinder Singh contractor engaged sub-
contractors at the rates ranging from 35-50% less than for
which he had won the contracts. In other words for
whatever price the contracts were awarded to Gurinder
Singh, the State was put to losses ranging from 30-50%
had the tender not been clubbed into single tender. The
statements of some sub-contractors have been recorded by
the Investigating agency. According to learned Advocate
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General, this is itself sufficient to deny the relief of grant of
anticipatory bail;
(v) The bungling in the purchase of pipes and payment thereof
made by the Government of Punjab to the contractor is
extremely serious. All the above three officers as well as
the fourth officer Harvinder Singh, Chief Engineer
conspired with the contractor and consequently, the rate
that was given for the purchase of pipes was 2-2.5% more
than the actual market rate. Learned Advocate General has
taken me through various documents of quotations and
correspondence etc. to which reference would be made at
appropriate stage. The rates that were given by these
officers to other contractors only seven months back was at
the rates lesser by 2-2.5 times. In the State of Haryana
when the same pipes were supplied by the same company,
namely Rex Polyextrusion Ltd., the rate was lesser by 2-
2.5 times. By no stretch of imagination, it could be said
that the officers were not knowing the rates in the market.
However, there was a criminal intention to suppress the
same in order that huge rate is given to the contractor
which must be for extraneous consideration and no other
inference is possible;
(vi) In so far as Harvinder Singh, Chief Engineer is concerned,
during his tenure, contracts worth more than `350 crores
were allotted to the contractor. Kandi area 85% works were
allotted to only Gurinder Singh. He got approved the price
of pipes more than `40 crores which was 1.2-1.25 more
than the rates given in the common schedule and market
rates;
(vii) In Shahpur Kandi Hydel Channel works total costs was
`100 crores. What is strange according to the learned
Advocate General is that in total 24 items, the difference
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that was shown was only `1 in 10 items with the
competing bidders. In other words, Gurinder Singh
contractor won all those contracts of those items by
showing the difference of `1 only. That was done with the
criminal intention to maneuver the entire tender process for
passing ultimate benefit only to Gurinder Singh contractor
and all these officers were fully involved in the conspiracy.
Harvinder Singh Chief Engineer, who certified the
quotations of Jain Irrigation System Ltd., which have now
been found to be a forgery. He submitted that the officer of
the rank of Chief Engineer indulging in forgery regarding
quotations is something which is painful. The statement of
concerned officer of the company has been recorded who
denied the issuance of quotations. Not only that during the
course of hearing when the name of the said officer of the
company was referred to this Court to that effect, Gurinder
Singh contractor made a WhatsApp call and practically
threatened him for giving statement under Section 161 of
Code of Criminal Procedure, 1973 to the Investigating
agency. The statement has been recorded again and placed
before this Court in a sealed cover. One G.S. Bains who
was working as Junior Engineer with the Irrigation
Department and retired on 31.08.2007 is brother-in-law of
Harvinder Singh and this Mr. G.S. Bains has been working
with Gurinder Singh contractor and the correspondence of
e-mail shows that it was he who was in contact with all
these officers for clubbing the information regarding
tenders etc. There are huge monetary transactions between
Gurinder Singh contractor and said Mr. G.S. Bains. But
then all other details can be collected by the Investigating
agency only if the custodial interrogation of all these
officers is allowed to be made. Otherwise it would not be
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possible to elicit or collect any further evidence in the
matter;
(viii) The submission that no inquiry should be made by the
vigilance bureau because the Special Chief Secretary to
Government of Punjab had written a D.O. letter to Chief
Secretary, Punjab that such vigilance inquiry would be
waste of time is again suppressing the entire investigation
as the report in the said earlier inquiry made by committee
comprising of three departmental officials. Thus, higher
departmental officers themselves conducted the inquiry
and this is clear that everything was all right. The entire
report of the engineers as well as role of the Special Chief
Secretary is highly suspicious and the intention appears to
be that the truth should not come out;
(ix) None of the petitioners are entitled to grant of anticipatory
bail since all of them and the contractor have been active in
obstructing the investigation. When the vigilance asked for
the records and documents from Irrigation Department, the
concerned higher officer wrote back a letter and refused to
hand over files to vigilance which itself shows the
influence that is still exercised by all these petitioners.
There is every likelihood of petitioners and the contractor
removing, damaging and destroying the evidence presently
available with the Department of Irrigation, if they are
allowed to be at large. Not only that the contractor and all
these officers in tandem planned a huge protest by the
engineers of the Irrigation Department of Punjab
condemning the investigation by vigilance and threatening
the Government and it's agencies in that behalf. There is
evidence on record in the form of e-mails that the present
petitioners as well as Gurinder Singh contractor have again
conspired together to obstruct the investigation by
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vigilance bureau and accordingly, e-mails were exchanged.
Pursuant to their plan, huge protests were raised in the state
of Punjab by irrigation engineers. Learned Advocate
General has shown me the correspondence as well as the
newspapers, photographers and reports about the protest;
(x) Gurinder Singh contractor is the master-mind in the entire
scam. He is the ultimate beneficiary to receive all profits
out of unjust enrichment allowed by the officers of the
Government. As on date, many of his employees have been
hiding after filing of FIR. The CCTV discs at his residence
have gone missing. Gurinder Singh contractor is the person
who was fully responsible in making the loot of the
Government money;
(xi) In so far as the petitioner-Vimal Sharma is concerned,
learned Advocate General submitted that, though, he was
Class-III employee supervisor his role is equally dubious
and no sympathy can be shown to him. He submitted that
the petitioner-Vimal Sharma was posted at Hoshiarpur to
look after the work. However, without obtaining any
permission from the Department to remain away from the
Headquarters, namely Hoshiarpur, he stayed at Chandigarh
and practically worked as if he was the employee of
Gurinder Singh contractor in his office at Chandigarh day
in and day out and was a part of the entire conspiracy along
with the superior officers with Gurinder Singh contractor.
He took a stand before the Sessions Court in his plea for
anticipatory bail that he had never worked with Gurinder
Singh, but in this Court he has changed the stand by
indicating that he had worked with Gurinder Singh
contractor and exchanged number of calls. However,
evidence collected by the agency now shows that in fact,
Vimal Sharma was taking salary from the Punjab
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Government and was working in the office of Gurinder
Singh contractor when he was supposed to be at site in
Hoshiarpur district. Clearly, therefore, he was a part and
parcel of the conspirators as aforesaid. Mr. Nanda cited
certain decisions which would be, if necessary, referred at
appropriate time;
(xii) Concluding, learned Advocate General, Punjab argued that
it is a fact that the petitioners have been putting spokes in
the smooth conduct of investigation and looking to the
entire conduct of the petitioners, none of them deserve the
relief of anticipatory bail. He finally prayed for dismissal
of all these petitions for grant of anticipatory bail.
CONSIDERATION
At the outset, submissions made by learned Advocate
General for the State of Punjab that none of the petitioners would be
entitled to take benefit of the ad interim anticipatory bail orders made
by this Court on the very first day of hearing to contend that the
petitioners were not called for joining the investigation and that,
therefore, the agency is not interested in real investigation and that
therefore, the ad interim orders should be made absolute, will have to
be accepted. The first reason is that the said ad interim anticipatory
bail was vehemently opposed by the learned Advocate General. But
then there was nothing before this Court in the form of affidavit/reply
from the State and declining of grant ad interim orders could have
made these petitions infructuous. The petitioners cannot be allowed to
take advantage of the said fact or the further alleged fact that they were
not called upon to join investigation. The ad interim order was made
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by this Court not on merits or after hearing both the sides or after
considering entire record and therefore, in my opinion, the contention
raised by learned Advocate General must be upheld. The submission
made by learned counsel for the petitioners that the nature of evidence
in the present FIR being of documentary nature and that the same is in
the custody of the Government and therefore, the custodial
interrogation of the petitioners is not necessary, cannot be accepted.
This Court will have to find out whether there is prima facie case
against the petitioners either by oral evidence or by documentary
evidence and thereafter, decide these matters on their own merits.
Assuming that the nature of evidence is of documentary nature is no
ground to claim that the petitioners would be automatically entitled to
grant of anticipatory bail. The next submission that was made by
learned counsel for the petitioners is that only the present accused
persons have been named in the FIR when there are other engineers
and the Government servants who appeared to have also signed
numbers of certificates and documents and that action of the
Government in being selective is mala fide and therefore, the Court
should protect the petitioners. Upon perusal of the averments in all
these petitions, I find that the averments relating to mala fides on facts
are not specific and pointed nor any specific person has been made as a
party to these petitions to contend about malice in fact. In the absence
of requisite material on record to that effect, it is not possible to
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assume or raise suspicion about malice in fact. The contentions as
above are thus, disposed of.
It is true that it is a trite law that while dealing with the
petitions for grant of anticipatory bail, a detailed discussion about the
evidence on merits should be avoided and the Court is required to find
out whether there is prima facie case or not. It is also true that in the
present scenario related to economic offences and particularly, the
offences relating to the public money in the Government Departments
under the Prevention of Corruption Act, the Court cannot adopt the
routine approach. The first allegation made by the prosecution in its
affidavit/reply along with large numbers of documents is that the
petitioners-Gurdev Singh Syan, Bajrang Lal Singla, Gulshan Nagpal,
Harvinder Singh in conspiracy with the contractor-Gurinder Singh for
the numbers of years adopted a modus operandi by making tailor-made
conditions in the tender suitable to Gurinder Singh contractor only
with the criminal intention that almost all the contracts are awarded to
him at the cost of leaking the secret information even before the terms
and conditions were being finalized. The counsel for the petitioners in
all these petitions as well as learned Advocate General as to the alleged
tailor-made conditions have advanced the submissions before this
Court with reference to numbers of documents, namely, SBD, CVC,
DNIT, PWD guidelines and so on and so forth. The precise allegation
is that these Government servants/Chief Engineers used to share the
sensitive information to Gurinder Singh contractor (for the sake of
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brevity hereinafter referred to as 'contractor') in the matter of
preparation of terms and conditions of tender, the nature of works, the
possible experience and eligibility conditions and not only that the
contractor and his associates having been fed with the information
used to amend the terms and conditions as per their suitability and
requirement and accordingly, used to send them back to the officers.
The final result of unholy coordination was that almost all the
contracts barring a few were bagged by the said contractor.
Per contra, learned counsel for the petitioners have
submitted that the said allegation is completely false and baseless in
that there is no variation or any deliberate change of terms and
conditions or eligibility etc. from any of the documents including SBD
or the CVC guidelines. At any rate, according to counsel for the
petitioners, the CVC guidelines are guidelines and in the best interest
of the organization, the petitioners had a discussion to make some
changes in the terms and conditions with a view that the participation
of the contractors increase rather than decreasing the same.
According to learned counsel for the Advocate General,
the changes made by these officers were materially different and the
only intention was to see that all the contracts are awarded to the said
contractor. That is why the word 'similar' work inserted in the CVC
guidelines was deliberately omitted and the tender notice did not
contain specification with a deliberate view to forbid the other
contractors for coming into the race.
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I have gone through the office memorandum dated
17.12.2002 issued by CVC with the assistance of the learned counsel
for the rival parties. The perusal of the entire record and huge
documents do show that the petitioners-officers had changed the terms
and conditions of eligibility etc. in violation of the CVC guidelines and
in violation of the terms and conditions set out by the technical
advisory committee to which Gurdev Singh Syan himself was a party.
As it is not possible to refer to each and every piece of documentary
evidence to burden the present order, but then prima facie, this Court
finds that all the petitioners had worked together for making unjust
enrichment of the contractor by creating a condition that the major
contracts are awarded to the contractor and all other contractors are
kept away. That is not the only issue, but what is seen is that as a
result, all these acts of the petitioners together, the State was straight
away put to loss to the extent of around 35 to 50% of the contracts. To
support this finding what I find is that the contractor obviously having
no capacity to execute himself the entire huge work ultimately sublet
the work to the local contractors on his own and obviously with active
connivance with the petitioners who are petitioners before this Court.
This is averred in Para 37(A)(f) of the affidavit by the State of Punjab
in CRM-M-36763 of 2017, which I quote hereunder:-
"37(A)(f) There is evidence on record to suggest
subletting of works by Gurinder Singh contractor and
silence of Gulshan Nagpal over it, as proof of his
connivance with Gurinder Singh, contractor. Thus,
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custodial interrogation of Gulshan Nagpal and Gurinder
Singh contractor are required to ascertain total instances
of such unauthorized instances of subletting of works by
the main contractor, done with connivance of accused
department officials."
The statements of some of the contractors have been
recorded by the Investigating agency as argued before me and it is seen
that the said contractors had performed the work for the contractor
Gurinder Singh at a rate lesser by 35-50% of the rates allotted to
Gurinder Singh and received by him. In my opinion, this is a very
strong evidence to show that by making a conspiracy to put all the
other contractors who ultimately worked as sub-contractors for
Gurinder Singh, the Government was straight-away put to monetary
loss ranging from 35-50%. Had the Government officers and the
contractors not acted in collusion and allowed sub-contractors also to
participate in the process without making tailor-made conditions
suitable for the contractor-Gurinder Singh, all these contractors who
had ultimately performed the work for contractor Gurinder Singh at the
said lesser rate of 35-50% would have actually worked. In my opinion,
this fall out ultimately is a strong evidence of the allegation of the
prosecution that the terms and conditions and eligibility conditions
were so tailor-made that all other contractors would be away and
Gurinder Singh would be able to receive all the contracts. To obtain
the contracts at higher rates, in conspiracy with the petitioners-officers
at 35-50% rates from the Government and thereafter, without any
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permission from the Government and in connivance with the aforesaid
officers subletting the work to other contractors reveals a clear-cut
criminal intention, mens rea and a large part of conspiracy. Some
statements of sub-contractors have been recorded. It cannot be said
that none of the petitioners-officers who are before me in these
petitions never knew about the work being performed by sub-
contractors engaged by the contractor-Gurinder Singh. But as
preplanned, they did not object nor complained to the Government. On
the contrary, they deliberately allowed it to happen under their nose
obviously, i.e. with a requisite criminal intention. They knew that
contractor would not do himself. Thus, it is prima facie proved that the
works were allotted to Gurinder Singh contractor at highly inflated
rates 35-50% higher causing straight loss to the public money in the
State of Punjab. It in this fallout background evidence, it would not be
necessary for me to enter into niceties pointed by counsel for both the
parties about the violation/compliance/amendments in the tender
documents as per CVC/PWD guidelines. The reason is that the
evidence as discussed by me above, prima facie shows substance in the
contention raised by the State about making tailor-made conditions etc.
It is very much essential to record the statements of all the sub-
contractors.
Learned Advocate General, Punjab further contended that
all the sub-contractors are afraid of recording of their statements,
though, some of them have recorded their statements because the
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petitioners are influential persons with means to prevent them from
cooperating in the investigation and that is why until and unless
custodial interrogation of all the petitioners is made, the list of entire
sub-contractors who have worked as above and received payments in
the manner indicated above from the contractor would not be
available. Hence, it is necessary to have custodial interrogation of all
the petitioners. I find much substance in the contention raised by
learned Advocate General.
The next prosecution allegation is that 52 different works
were clubbed into single tender with a view to allow the said single
tender only to the contractor that too at huge rates and in that 308
works orders were issued. In that connection, the following allegations
are made in Para 37(A)(m) of the affidavit by the State of Punjab in
CRM-M-36763 of 2017:-
"37(A)(m) Similar in a work tender of Rs.39 crores (final
cost) initially 52 different project estimates were sent to
the Technical Advisor to Chief Minister for vetting.
Thereafter all of a sudden, by clubbing all these works, a
single tender was floated on 25.04.2012 and it was allotted
to the accused Gurinder Singh, contractor as a single
bidder at rates which were 15% above departmental rates.
Thereafter, as this work comprised of many small, different
and unique works which were clubbed with each other,
308 different work orders were issued to Gurinder Singh
contractor for this work, thus depicting extent of
clubbing........."
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It is not in dispute that the work was spread over to 22
villages at far off places falling in different divisions and districts. It is
also not in dispute that there are various contractors in these divisions
and district in the State of Punjab. In the ordinary course, the
contractors existing in these areas would have been the best to perform
the work obviously at lower price had those 52 different works not
been clubbed into single tender. On the contrary looking to the area
falling under the project, which is a very long area covering around
444 kms and 600+ kms of pipes for laying the pipes underground, a
single contractor would not be in a position to perform the work
himself and by no stretch of imagination, it could be said that the
petitioners-officers in these petitions did not have any inkling or
knowledge about it. On the contrary, knowing fully well that
contractor was bound to engage local sub-contractors, these officers
joined hands with the contractor as a part of the conspiracy. The net
result as stated earlier was that the contractor Gurinder Singh had to
engage the very same sub-contractors. These sub-contractors were paid
lesser by 35-50% out of 100% amount collected by the contractor.
Thus, all the petitioners systematically worked in tandem to cause
straight loss to the Government between 35-50%.
The exchange of e-mails, correspondences between
Gulshan Nagpal and G.S. Bains about the preliminary draft and final
draft is produced as Annexure R-2 with the affidavit filed by the State
of Punjab in CRM-M-36763 of 2017. I have carefully perused the said
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documents, which is not in dispute. The e-mail was made from the
personal I.D of Gulshan Nagpal to official I.D., on 23.09.2014
addressed to G.S. Bains. It would be appropriate to reproduce the said
Annexure R-2 which is as under:-
"Gulshan Nagpal <[email protected]> Tue, Sep 23, 2014 at 10:10 AM
To: "[email protected]" <[email protected]>
Regards
Gulshan Nagpal
Being forwarded message:
From: Bains <[email protected]>
Dated: 13 September 2014 11:11:00 am GMT+5:30
To: "[email protected]" <[email protected]>
Subject: FINAL DISCUSSED DRAFT SUB SURFACE 09.09.14 (Changed)
Ready For tender Document from our side.
Sent from my iPad
FINAL DISCUSSED DRAFT SUB SURFACE 09.09.14 (Change).pdf
866K
______________________________________________________________________
DCD Gidderbaha <[email protected]> Tue, Sep 23, 2014 at 10:17 AM
To: jaspaulgarg11 <[email protected]>
[Quoted text hidden]
Sent from my iPad
FINAL DISCUSSED DRAFT SUB SURFACE 09.09.14 (Change).pdf
"
866K.
It is clear therefrom that the information about the tender of
13.09.2014 etc., preliminary draft, final draft etc. was shared by the
Chief Engineer Gulshan Nagpal and in consultation with G.S. Bains
working with Gurinder Singh contractor, the same was finalized. The
information given seven days before the tender by Gulshan Nagpal and
preparation of draft as per the need of the contractor, in my opinion is
a very serious breach of trust on the part of a Government servant who
appear to have mortgaged all their loyalties, which is clear from the
reading of the above document. This is an evidence of fact that the
contractor and all these officers were in a pre-planned conspiracy. The
State has produced Annexure R-1 with its affidavit filed in CRM-M-
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36763 of 2017, which runs into several pages which is the data
regarding Bajrang Lal Singla exchanging e-mails with Gurinder Singh
contractor from his personal e-mail I.D. to Bajrang Lal Singla posted
at Headquarter. I have perused the entire chart (Annexure R-1) and I
find that Bajrang Lal Singla had sent all the sensitive information to
Gurinder Singh contractor about the internal meetings of the
committees or TOC and the agenda that was to be taken up in those
meetings in respect of the subject matter. A perusal of the said
document shows that Bajrang Lal Singla also shared the dates which
were proposed from time to time for meetings etc. He even leaked the
turn-over of other contractors to him which is the secret information
with the Department. He also shared the draft of tender notice and
conditions and so also is the case with Gulshan Nagpal, details of
whose e-mails are given at Pages 47-48 of the affidavit filed by the
State of Punjab in CRM-M-36763 of 2017. It is thus, clear that Bajrang
Lal Singla and Gulshan Nagpal both were working for the benefit of
the contractor rather than Government. There are numbers of call
details, produced at Page 49 of the said affidavit, between Rakesh,
Gulshan Nagpal, Gurinder Singh, Balrang Lal Singla, Paramjit Singh
and Vimal Sharma. The required details about e-mails and the call
details etc. can only be found out by the custodial interrogation of the
petitioners separately and together. Therefore, the custodial
interrogation is most essential.
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The story about obtaining of quotations for pipes by all
these officers is again shocking in the sense that the rates of the pipes
of the prescribed size etc. were obtained from Rex Polyextrusion Ltd.
company in March 2014 by Haryana Government; for example at the
rate of `425/- per meter and by Gurdev Singh Syan himself in Febrary
2014 at the rate of `690/- per meter, but the same Gurdev Singh Syan
sanctioned the rate of the same pipes for the contractor at the rate of
`1100/- per meter. The State has also found out the actual
purchase/bills/details of the contractor, which shows that the contractor
purchased the same at `491.09 per meter during 2015-2016. It would
be appropriate to produce the chart placed before the Court by the
respondent-State, which is as under:-
"Size of PVC Rate per meter Rate per meter Rate per meter Maximum Length of
Perforrated in Haryana rate taken in taken in 75 purchase rate pipes used
Corrugated contract dated another Crore Estimate per meter by
Pipe March, 2014 estimate for (Present cost Gurinder
similar sub 115 Crore) in Singh,
These rates surface work October, 2014 Contractor,
are used to allotted to (Sanctioned by during 2015,
indicate Ashok Kumar Gurdev Singh 2016 (Based
prevailing in Feb, 2014 Syan, CE) on actual
market rates (Sanction by purchase bills,
at that time Gurdev Singh all bills
Syan, CE) available)
Field
178/200mm 425 690 1100 491.09 5516 Meter
144/160mm 275 418 794 331.44 2193 Meter
(pipes as long
as 12 km are
still lying in
stock)
72/80mm 59 85 160 64.85 49557 Meter"
Thus, all this clearly shows that the petitioners-officers
deliberately and with criminal intention allowed the contractor to have
unjust enrichment at the excess rate of `608.91 per meter (`1100 -
`491.09). That is also true in respect of other items mentioned in the
above chart. In my opinion, this evidence which has not been denied is
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tell-telling about the offences committed by the petitioners. The
submission that the rate of pipes depends upon the market condition
and rising of price of 'Rasin' which is a petroleum product and
therefore, there is variation in the market about the rates, is wholly
misconceived and falsified by the fact that the rates at which the pipes
were purchased by the contractor have also been given in the above
chart, namely `491.09 per meter, `331.24 per meter and `64.85 per
meter for respective items as against the amount collected in the sum
of `1100 per meter, `794 per meter and `160 per meter for respective
items. The three engineers Gurdev Singh Syan, Bajrang Lal Singla and
Gulshan Nagpal are fully involved in the aforesaid activity.
In so far as Chief Engineer Harvinder Singh is concerned,
similar is the position and is clear from the chart produced before this
Court. Because of his conduct, loss of about `8 crores stood caused to
the State of Punjab as the price list of Jain Irrigation System from 2013
(Annexure R-26 page 199 with the affidavit filed by the State in CRM-
M-36763 of 2017) shows that the rates were too low than the approved
and paid to Gurinder Singh. In this connection, it is serious to note that
the petitioner-Harvinder Singh even went to the extent of committing
forgery inasmuch as he purportedly produced on record the rates from
Jain Irrigation System Ltd. which now, during investigation, has
revealed that those quotations from Jain Irrigation System Ltd.
produced by him are all forged and fabricated. The officer from Jain
Irrigation System Ltd. has written accordingly, to the investigating
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agency that the company never issues quotations in the format created
by Harvinder Singh. I have perused the statement of the officer of the
Jain Irrigation System Ltd. During the course of hearing, after this
Court was shown the statement of the said officer, learned Advocate
General submitted that Gurinder Singh contractor made a WhatsApp
call to the officer of said company and asked as to why he gave
statement to the Investigating agency. The officer, accordingly,
reported to the police and statement has been kept in record in a sealed
cover.
There is evidence on record in the form of photographs,
news of newspapers showing that the huge protest by Irrigation
Department engineers against the investigation by the vigilance bureau
were made vociferously vide Annexure R-19 with the said affidavit.
Bajrang Lal Singla has even shared e-mail with Gurinder Singh
contractor vide Annexure R-20 with the said affidavit regarding the
protest against alleged harassment by Amarinder's Vigilance Bureau.
It is Bajrang Lal Singla and Gurinder Singh who planned protest
against the vigilance bureau for making investigation. Apart from that
the State has placed on record a letter dated 21.08.2017 (Annexure R-
18 with the said affidavit). It is better to reproduce the said letter on
record:-
"Regarding aforesaid subject, your office had sought record of
7 no. works on priority, from that this office had sent record of
4 no. works (S. No.2,4,5 and 7) to you, S.No. 2's record vide
letter No.2294/2drainage dated 28.07.2017, S. No.4's record
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vide letter No.2384/2drainage dated 03.08.2017, S.No.5's
record vide no.2296/2drainage dated 28.07.2017 and S.No.7's
record vide letter no.2295/2drainage dated 28.07.2017 was
sent. Record of 4 no. works, sought on priority, was not sent
because joint action committee comprising PSE-1, Diploma
Engineers Association, AMIE Association, Engineering
drawing staff association. Ministerial staff association and
Revenue Patwari Association, as per the discussion in a
meeting after meeting with Principal Secretary/Irrigation, had
informed this office vide letter No.3/Special/Chandigarh dated
26.07.2017 that record of only 4 number works be sent.
Therefore as per that the record of 4 nos. works was sent by
this office to you. ................."
Perusal of the said letter shows that the Chief Engineer
(Drainage) of the Irrigation Department acting allegedly on the joint
action committee of the Government servants, i.e. the Engineers,
Ministerial staff etc. informed the vigilance bureau that out of records
sought by the vigilance bureau, only four should be send to the bureau.
Thus, he has refused to give records to the vigilance bureau. In my
opinion, the aforesaid letter as well as the protest managed by the
petitioners is a clear attempt to prohibit the vigilance bureau and put
pressure on the Government not to make investigation. This is nothing
but tampering with the prosecution evidence and destructive of rule of
law. With the aforesaid letter coupled with the said protest, I am
convinced that unless the custodial interrogation is made, nothing
fruitful will come out.
In so far as Vimal Sharma Class-III supervisor is
concerned, he initially stated that he did not work for Gurinder Singh
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contractor and that he had nothing to do with his office at Chandigarh
because he was posted at Hoshiarpur. However, the Investigating
agency has recorded statements of some of the witnesses which show
that Vimal Sharma was everyday sitting in the office of Gurinder
Singh contractor at Chandigarh and did not stay at Headquarters at
Hoshiarpur where the work was going on. In other words, the
petitioner-Vimal Sharma was taking salary from the Government of
Punjab and was working for Gurinder Singh contractor in his office at
Chandigarh without obtaining any permission to leave his
Headquarters at Hoshiarpur. He worked in tandem with Rakesh, the
employee of Gurinder Singh contractor. He knows each and every
point of the conspirary. The person with such a dishonest conduct
cannot be extended the benefit of anticipatory bail.
As to citations placed before me by the learned counsel for
both sides, I need not refer them as there can be no dispute about the
propositions of law propounded by the Supreme Court, and in fact I
have followed the law laid down.
To sum up this Court is convinced that there is prima facie
evidence against all the petitioners and huge evidence is required to be
collected by the Investigating agency and that is possible only if the
custodial interrogation is allowed and not otherwise. The plea for grant
of anticipatory bail made by all the petitioners, therefore, will have to
be turned down. In the result, I make the following order:-
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CRM-M-37135 of 2017, CRM-M-37244 of 2017,
CRM-M-36133 of 2017 AND CRM-M-36230 of 2017
ORDER
(i) All these petitions, i.e. CRM-M-36763 of 2017 preferred by Gurdev Singh Syan, CRM-M-36999 of 2017 preferred by Vimal Sharma, CRM-M-37135 of 2017 preferred by Gurinder Singh, CRM-M-37244 of 2017 preferred by Gulshan Nagpal, CRM-M-36133 of 2017 preferred by Harvinder Singh and CRM-M-36230 of 2017 preferred by Bajrang Lal Singla for grant of anticipatory bail are dismissed;
(ii) Ad interim orders made by this Court in all these petitions are vacated.
(A.B. CHAUDHARI) JUDGE November 15, 2017 mahavir Whether speaking/ reasoned: Yes/No Whether Reportable: Yes/No 50 of 50 ::: Downloaded on - 16-11-2017 05:48:44 :::