Cbi vs 1. Gurdial Singh on 1 October, 2013

[Cites 31, Cited by 0]

Delhi District Court

Cbi vs 1. Gurdial Singh on 1 October, 2013

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       IN THE COURT OF SH. J.P.S MALIK :SPECIAL   JUDGE 
               CBI03 (PC ACT):  TIS HAZARI: DELHI


Corruption Case No. 08/10
RC No. RC2(S)/96/ CBI/SCBI/ND

CBI            Vs            1.    Gurdial Singh
                                   s/o Sh. Gopal Singh
                                   Then Resident Commissioner
                                   Govt. of Tripura, 
                                   Tripura Bhawan, New Delhi
                                   Now IG CID Crime and Railways
                                   State of Gujrat, 89, 
                                   New Mental Compound
                                   Meghani Nagar, Ahmedabad
                                   R/o Bunglor No.33, Shahi Bagh, 
                                   Ahemdabad, Gujrat.

                             2.     Rasheed Masood
                                    s/o Late Sh. Kaji Masood
                                   the Then Minister of State or Health & 
                                   Family Welfare, Govt. of India, 
                                   r/o 439, Mandakini Enclave,
                                   Alkananda, New Delhi.


                             3.     Adnan Masood
                                    s/o Sh. Rashid Masood
                                   r/o 84B, Okhla, New Delhi.
                                   Permanent address: Gangoh, Saharanpur 
                                   (U.P).



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Date of Institution                   : 03.04.2003
Date of conclusion of arguments: 29.08.2013
Date of judgment                       : 19.09.2013

JUDGMENT:

1. Chargesheet has been filed against all the three accused for offences punishable U/S 120B r/w Sections 420, 468,471 IPC and Section 13(1)(d) r/w Section 13(2) of Prevention of Corruption Act, 1988. Apart from that, accused no.1, Gurdial Singh has been chargesheeted for substantive offences punishable U/S 468 IPC as well as Section 13(1)(d) r/w Section 13(2) of Prevention of Corruption Act, 1988. Accused no.2, Rasheed Masood was chargesheeted for substantive offences punishable U/S 13(1)(d) r/w Section 13(2) of Prevention of Corruption Act and accused no.3, Adnan Masood, was also chargesheeted for substantive offences punishable U/S 420 and Section 468 r/w Section 471 IPC in addition.

2. The case relates to the admission of accused no.3, Adnan Masood in the first year MBBS course in Patna CC No.08/10 2 of 85 3 Medical College, Patna, Bihar for the academic year 19901991 as a nominee of Tripura against the seat allocated by Government of India.

3. Vide order dated 25.01.2007, accused no.3, Adnan Masood was held to be a juvenile as on the date of commencement of the Juvenile Justice (Care and Protection of Children) Act, 2000, since the challan was filed only on 03.04.2003 and the proceedings commenced only thereafter. Accused no.1, Gurdial Singh was the Resident Commissioner, Govt. of Tripura in New Delhi at the relevant time. Accused no.2, Rasheed Masood was the Minister of State for Health & Family Welfare, Govt. of India, New Delhi at the relevant time.

4. As per the case of prosecution, State of Tripura was not having any medical college of its own and was being allocated MBBS and BDS seats every year from the central pool by the Ministry of Health & Family Welfare, Govt. of India in various medical colleges of the country. Apart from that, some seats were also made available to the State of Tripura by the Regional Medical College, Imphal, Manipur CC No.08/10 3 of 85 4 and the above seats were allocated to the eligible candidates on the basis of merit.

5. Every year Govt. of India in the Ministry of Health and Family Welfare used to request State/UT Govt. and other medical institutions for their contribution of MBBS/BDS seats and in turn, allocating the same to the States/UTs without medical colleges of their own and to some other specified categories. For the academic year 19901991, vide letter no. U.14014/15/90ME(UG) dated 03.05.1990 addressed to the Secretary, Ministry of Health & Family Welfare Department, Govt. of Tripura, Ministry of Health & Family Welfare, Govt. of India, allocated 16 MBBS and 2 BDS seats to the State of Tripura out of the MBBS/BDS seats contributed by different States/UTs by that time. Again, subsequent to further contribution by other States and other UTs, vide letter no. U.14014/15/90ME(UG) dated 31.07.1990 addressed to the Secretary, Health & Family Welfare Department, Govt. of Tripura, another 4 MBBS and 2 BDS seats were allocated to the State of Tripura in following colleges: CC No.08/10 4 of 85 5 MBBS seats

(i) Darbhanga Medical College, Laheriasarai, Bihar 1 seat.

(ii) Patna Medical College, Patna, Bihar 1 seat.

(iii) K.G's Medical College, Lucknow, U.P 1 seat.

(iv) Medical College Gwalior, Gwalior, M.P. 1 seat. BDS seats

(i) Government Dental College, Patna 2 seats.

Further, vide letter no. U.14014/15/90ME(UG) dated 22.08.1990, one more MBBS seat was allocated to the State of Tripura, which was in Magadh Medical College, Gaya( Bihar).

6. The Govt. of Tripura constituted Tripura Board of Joint Entrance Examination (TBJEE) in December, 1988 for selection of candidates through Joint Entrance Examination (JEE) conducted every year and nomination of the candidates for admission in MBBS/BDS courses in various medical colleges were made on the basis of merit. Criteria for deciding the eligibility of the candidates appearing at the Joint CC No.08/10 5 of 85 6 Entrance Examination were laid down in the Tripura Board of Joint Entrance Examination Regulations, 1989.

7. As per Regulation no.4 of the aforesaid Regulations, the eligibility for appearing in Joint Entrance Examination was that the applicant must be an Indian citizen and a permanent resident of Tripura in terms of memorandum No.F.28(31)rev/87 dated 12.12.1988 of the Revenue Department, Govt. of Tripura and had passed, appeared/due to appear in the year of the examination at the Higher Secondary Examination of Tripura Board of Education/Central Board of Secondary Education or equivalent and in case, the candidate is not a permanent resident of Tripura, he was eligible in case his/her parent was an officer on deputation to the Govt. of Tripura/Officer of the Central Govt. working in Tripura for a period not less than 3 years and passed Higher Secondary Examination from an Institution of Tripura etc.

8. Ministry of Health & Family Welfare, Govt. of India had also issued detailed instructions in this regard vide letter No.U14014/84/86ME(UG) dated 09.12.1986 and it was directed that only the children of (i) permanent residents CC No.08/10 6 of 85 7 of the State/UT concerned, (ii) the employees of the State/UT concerned, (iii) the employees of the Central/other State/UT Govt. on deputation to the State/UT concerned, (iv) the employees of Central/other States/UT Govt. posted in and having their HQs with the State/UT concerned will be eligible. Reservations were made for Scheduled Castes and Scheduled Tribes candidates.

9. The procedure adopted after the constitution of Tripura Board of Joint Entrance Examination for the purpose of selection of candidates in professional degree courses including MBBS and BDS courses was that on the basis of result of said examination, separate merit lists were prepared for general category, Scheduled Caste candidates and Scheduled Tribes candidate in each group i.e. EPCM (English, Physics, Chemistry and Maths) and EPCB ( English, Physics, Chemistry and Biology). All the seats available against the two groups were to be made available to TBJEE and the Board was required to recommend the names of the candidates on the basis of seniority in each category in the merit lists for nominations. The nomination letters were CC No.08/10 7 of 85 8 required to be issued by the designated authority for each group and in respect of MBBS and BDS seats, the Director of Health Services, Govt. of Tripura was the only designated authority for issuing the nomination letters and was having the prescribed proforma of the nomination letters in which nominations were issued.

10. Further, as per the case of prosecution, accused no.1, Gurdial Singh in collusion with accused no.2, Rasheed Masood and accused no.3, Adnan Masood, fraudulently and dishonestly issued nomination letter bearing No.FII(105) ET/MS/90 dated 06.08.1990 by using the prescribed proforma of Directorate of Health Services, Govt. of Tripura under his seal and signatures in favour of accused no.3, Adnan Masood for admission in the first year MBBS course in Patna Medical College, Patna, Bihar against one of the Govt. of India seats reserved for Tripura Govt., knowing fully well that neither he was competent and authorised to issue said nomination letter nor was accused no.3, Adnan Masood eligible for nomination as a nominee of Govt. of Tripura. Further allegations are that accused no.3, Adnan Masood is the son of elder brother of CC No.08/10 8 of 85 9 accused no.2, Rasheed Masood, the then Minister of State with independent charge of Ministry of Health & Family Welfare, Govt. of India. Accused no.3, Adnan Masood was a resident of U.P who had his education through out either in U.P or in Delhi. He was neither eligible to appear at the Joint Entrance Examination conducted by TBJEE in 1990 nor he had appeared at the said examination. It is alleged that it was a part of the conspiracy between accused no.1, Gurdial Singh and accused no.2, Rasheed Masood alongwith accused no.3, Adnan Masood.

11. Charge for offences punishable U/s 120B r/w Sections 420,467,468,471 IPC and Section 13(2) r/w Section 13(1)(d) of Prevention of Corruption Act was framed against accused no.1, Gurdial Singh, accused no.2, Rasheed Masood on 09.02.2007. Further, accused no.1, Gurdial Singh was also charged for substantive offences punishable Under Sections 420,467,468 and 471 IPC as well as under Section 13(1)(d) r/w Section 13(2) of Prevention of Corruption Act. Accused no.2, Rasheed Masood was further charged for substantive offences punishable U/S 13(2) r/w Section 13(1)(d) of CC No.08/10 9 of 85 10 Prevention of Corruption Act. Both the accused pleaded not guilty and claimed trial.

12. Vide order dated 10.07.2007, 5 cases being CC No. 06/10(Old case no. 2/2000), CC No.07/10 ( Old case no. 3/2000), CC No.10/10 ( Old case no.4/2000), CC No. 09/10(Old case no.23/2000) and CC No.08/10 (Old case no. 24/2000), were directed to be consolidated to the extent that evidence would be recorded in CC No. 6/10( Old case no. 2/2000), and same was to be read in all other matters.

13. Prosecution has examined 30 witnesses in order to substantiate the allegations against the accused persons.

14. PW1 Sharda Prasad, Joint Secretary in the Ministry of Labour and Employment, in February 2003, was working as Joint Secretary, CenterState in the Ministry of Home Affairs and has deposed in regard to the sanction granted to prosecute the accused Rasheed Masood(accused in CC No. 08/10, 09/10, 11/10), the then Minister of State, Independent charge, Ministry of Health and Family Welfare, Government of India. The witness has authenticated the sanction order.

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15. PW2 P.S. Pillai was working as Under Secretary in the Ministry of Home Affairs, Government of India, New Delhi and had authenticated the Sanction Order Ex. PW2/A to prosecute the accused, Gurdial Singh.

16. PW3 Ms. Amarjeet Kaur, Deputy Director General in the Ministry of Labour and Employment, Government of India, and was posted as Deputy Secretary in the Ministry of Health and Family Welfare at the relevant time till May 1991, and accused Rasheed Masood(accused in CC No.08/10, 09/10, 11/10) was the Minster of Health and Family Welfare, Government of India. The Witness has deposed in regard to forging of her signatures on a letter dated 23.11.1990, Mark A in file of case titled CBI Vs. Rajesh Madu, RC No. 296(A), chargesheet no. 14/97 in the Court of ACMM, Karkardooma Courts and certified copy of the file given Ex. PW3/A for identification.

17. PW4 is Inspector Bir Singh (Retired), was posted as SHO, P.S. Chanakya Puri in the month of February 1996. The witness has deposed in regard to the registration of a case FIR No. 31 dated 09.02.1996 U/s 420/468/471/420 IPC.

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The witness has also deposed as regard the forwarding of copy of FIR and original documents in the case to Director, CBI, New Delhi, as per the order passed by Hon'ble Assam High Court at Guwahati,(Agartala Bench). The witness has deposed as regard the FIR dated 09.02.1996 having been registered on a complaint made by Hardhan Sinha, Assistant Director, Health Services, Government of Tripura, Agartala.

18. PW5 Inspector Babbar Bhan, SHO, P.S. Chanakya Puri has proved the carbon copy of FIR No. 31/96 dated 09.02.1996, and carbon copy of the same is Ex. PW5/A.

19. PW6 B.B. Dev Verma, was the Deputy Resident Commissioner, Govt. of Tripura from 1982 till year 1992, and deposed as regard accused Gurdial Singh being Resident Commissioner, Government of Tripura, Tripura Bhawan, New Delhi, during the period 199091, and has proved the nomination letters signed by accused Gurdial Singh in favour of candidates for admission in different medical colleges against the seats allocated by Government of India, Ministry of Health and Family Welfare. The witness had also handed CC No.08/10 12 of 85 13 over documents to Inspector Richhpal Singh vide seizure memo Ex. PW6/K.

20. PW7 Sukhamoy Dey, Protocol Officer at Tripura Bhawan, New Delhi, testified that he was working in Tripura Bhawan since year 1980, and had worked as Protocol Assistant while accused Gurdial Singh was Resident Commissioner, Government of Tripura, New Delhi. The witness has identified signatures of accused Gurdial Singh on nomination letters in favour of candidates for admission in different medical colleges on the basis of allocation made by Ministry of Health and Family Welfare, Government of India for State of Tripura, for the Academic Year 199091.

21. PW8 is R.D. Shukla, Retired Sr. Assistant from office of Principal, K.G. Medical College, Lucknow, U.P. The witness has proved the signatures of Principal Dr. P.K. Mishra on letter to SP, CBI dated 14.05.1996 Ex. PW8/A. PW8 also proved the signatures of Principal V.K. Khanna on nomination letter dated 06.08.1990 pertaining to candidate Pawar Sandeep Trilok Chand(accused in CC No.09/10) Ex. PW7/A for CC No.08/10 13 of 85 14 admission in first year MBBS course for academic session 199091 as nominee of Tripura Government.

22. PW9 is Pravin Srivastava, Joint Secretary, Government of India, Ministry of Culture, deposed that in December 1997, he was posted as Secretary, Government of Tripura, Agartala and had proved the Sanction Order Ex. PW9/A to prosecute the accused Gurdial Singh, Ex. PW9/B to prosecute the accused S.R. Majumdar( since deceased) Ex Chief Minister of Tripura, and Ex. PW9/C to prosecute accused Kanshi Ram Reang, Ex Health Minister, Government of Tripura.

23. PW10, Trilok Chand is father of candidate Pawar Sandeep Trilok Chand(accused in CC no.09/10), who was admitted to K.G. Medical College, Lucknow, U.P., as a nominee of Tripura State, against reserved seats allocated to Tripura State by Ministry of Health and Family Welfare, Government of India for the Academic Year 199091.

24. PW11 is Mohd. Aftab Alam, being a clerk from Government Dental College, Patna, Bihar, and has testified as regard admission of accused Bipul Kanti Rakshit( accused in CC No.08/10 14 of 85 15 CC no.07/10) and accused Sonia ( accused in CC no.10/10) to the BDS course as nominee of Tripura against the seats allocated to Tripura State, by Ministry of Health and Family Welfare, Government of India, for admission in BDS course for the Academic year 199091.

25. PW12 is Kanwar Singh, Inspector( retired), CBI, who had gone to Government Dental College, Patna, Bihar on 30.05.1996, and had seized documents pertaining to admission of accused Sonia( accused in CC no.10/10) and accused Vipul Kanti Rakshit( accused in CC no.07/10) in BDS course for Academic Year 199091.

26. PW13 is Dr. S.S. Srivastava, in July, 1996 was posted as Principal Darbhanga Medical College, Laheriasarai, Bihar and had deposed as regard the admission of accused Ms. Geeta Banik (accused in CC no.06/10) in Darbhanga Medical College, Laheriasarai, Bihar in year 199091. The witness had also sent documents to CBI vide letter dated 11.07.1996.

27. PW14 J.N. Jha was posted as Admission Clerk in May 1997 in Patna Medical College, Patna, Bihar. PW14 has testified that accused Adnan Masood( accused in CC no.

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08/10) was admitted in Patna Medical College on 21.11.1990 against Roll No. 84 for the Academic year 199091. The witness had also proved seizure memo Ex. PW14/B vide which documents were seized by CBI on 23.05.1997. The witness has also proved letter no. U.14014/15/90ME(UG) dated 31.07.1990 received from Government of India, Ministry of Health and Family Welfare signed by Ms. Amarjeet Kaur, Deputy Secretary, Ex. PW14/C.

28. PW15 is C.L. Bhatia, and had retired as Deputy Secretary from Government of India. The witness worked in the Ministry of Health and Family Welfare, Government of India from 1968 to December, 2000. The witness worked as Desk Officer in Medical Education Desk from year 1985 to year 1991. Accused Rasheed Masood( accused in CC no. 08/10, 09/10, 11/10 ), was State Minister of Health and Family Welfare, Government of India, during year 199091. PW15 has proved letter no. U.14014/15/90ME(UG) dated 03.05.1990 signed by him Ex. PW15/B vide which 16 MBBS and 2 BDS seats were allocated to State of Tripura, and testified that copy of the same was sent to Incharge, Tripura CC No.08/10 16 of 85 17 Bhawan, New Delhi. PW15 also proved letter no. U. 14014/15/90ME(UG) dated 31.07.1990, signed by Ms. Amarjeet Kaur, Deputy Secretary, Department of Health, Ex. PW15/C, allocating 4 MBBS and 2 BDS seats to Government of Tripura. The witness also deposed as regard allocating one more MBBS seat on 22.08.1990 vide letter no. U. 14014/15/90ME(UG) dated 22.08.1990 to the Sate of Tripura, copy/endorsement of the same being Ex. PW15/D and Ex. PW15/E. PW15 also proved noting by the accused Rasheed Masood(accused in CC no.08/10, 09/10, 11/10) on Note no. 20 and Note no. 16, both signed by accused Rasheed Masood(accused in CC no.08/10, 09/10, 11/10) , being Ex. PW15/F and Ex. PW15/G.

29. PW16 is Dr. Haradhan Sinha, who retired as Assistant Director of Health Services, Government of Tripura, and has deposed in regard the procedure being adopted in the State of Tripura at the relevant time for selection of students to be nominated for admission in Medical/Engineering Colleges. PW16 also deposed as regard fraud in admission of CC No.08/10 17 of 85 18 students as nominee of Tripura Government, for the Academic Year 198990 as well as 199091, and also proved complaint Ex. PW4/C, lodged by him at P.S. Chanakaya Puri, New Delhi on 09.02.1996, as per the orders of Government of Tripura.

30. PW17 is Dr. Bikash Roy, who retired as Director of Health Services, Government of Tripura. The witness was Director of Health Services, Tripura from year 1996 to year 1998, and had proved the note Ex. PW17/M for approval for lodging FIR in the matter.

31. PW18 Darshan Singh, is father of accused Sonia( accused in CC no.10/10).

32. PW19 is Ashok Kumar Majumdar, UDC, Government of Tripura, Tripura Bhawan, Guwahati. The witness was posted as LDC in the office of Resident Commissioner, Tripura Bhawan, New Delhi from year 1990 to April 2001. Deposition of this witness remained in conclusive.

33. PW20 is Dr. Nilmoin Deb Barman, who retired CC No.08/10 18 of 85 19 as Director, Health Services, Tripura. The witness was Director of Health Services, Government of Tripura, from year 1984 to year 1991. The witness deposed that prior to year 1988, there was no written test being held for selection of the candidates to be nominated to different Medical/Engineering Colleges, and selection used to be made on the basis of the marks obtained by students in 10 +2 examination. PW20 deposed that Director, Health Services, used to issue nomination letters of selected candidates. PW20 also testified that as from year1988 to year 1992, selection used to be made on the basis of an exam conducted by Tripura Joint Entrance Examination Board. Board used to send list on the basis of merit to Director Health Services, State of Tripura, and Director, Health Services, used to nominate candidates on the basis of the merit list, so received.

34. PW21 is Sh. Rattan Chander Banik, father of accused Geeta Banik. He had deposed regarding admission of accused Geeta Banik in Darbhanga Medical College in first year MBBS Course for Academic Year 199091.

35. PW22 is Sh. S.S. Sharma, retired as Secretary CC No.08/10 19 of 85 20 to Government of India. The witness was Principal Secretary, Incharge of Health and Forest Departments, State of Tripura from December, 1989 to February 1991. The witness has testified that Director of Health Services was the authority empowered by State Government to issue nomination letters on the basis of the merit list forwarded to the Director of Health Services by Board of Entrance Examination. PW22 also testified that to his knowledge, no discretionary quota was available to anyone and no one, except the Director of Health Services, had authority to issue the nomination letters in respect of MBBS and BDS seats, during the period.

36. PW23 is Sh. Richhpal Singh, who was posted as SI, CBI, SCB, New Delhi, in year 1996. The witness has testified that after the case was transferred to CBI from P.S. Chanakya Puri, New Delhi, case RC No.2/96 was assigned to him for investigation, and he had seized certain documents during the period, he was investigating the case. The witness testified that investigation after 3 / 4 months, was handed over to Deputy Superintendent of Police, S.B. Sinha.

37. PW24 Dr. Irshad Masood( Uncle of accused CC No.08/10 20 of 85 21 Adnan Masood, accused in CC No.08/10), has testified as regard receiving of nomination letter in favour of accused Adnan Masood (accused in CC no. 08/10) for admission in first year MBBS course at his address in Roorkee, Uttarakhand.

38. PW25 Sh. S.B. Sinha, was working as Deputy Superintendent of Police in Special Crime Branch, New Delhi, during the period from 1996 to 2000. The witness has deposed as regard the receiving of investigation of the case from SI Richhpal Singh, and had done the major part of the investigation in the case.

39. PW26 is Sh. S.L. Mukhi, Retired Principal Scientific Officer, CFSL, New Delhi. The witness has deposed as regard examination of certain documents, and has proved his report Ex. PW25/J, submitted in the matter.

40. PW27 is Sh. Shashi Prakash, Member, Central Administrative Tribunal, Allahabad Bench, and has testified that from November 1991 to October 1992, he was posted as Commissioner, Department of Health, Government of Tripura, and was also holding the charge of Secretary to CC No.08/10 21 of 85 22 Governor, Tripura. The witness has testified as regard the procedure being adopted at that time for admission of candidates of Tripura in various medical colleges of the country, which was on the basis of Joint Entrance Examination conducted by Department of Higher Education. The witness testified that nomination of MBBS and BDS seats used to be made by Director of Health Services based upon the list received from the Directorate of Higher Education. The witness also testified as regard the matter having been brought to his notice from orders of Hon'ble High Court regarding suppression of certain number of MBBS and BDS seats and proved the letter dated 16.07.1992 received from Sh. Sudhir Sharma, Commissioner, Higher Education, Ex. PW22/A, in that regard. The witness further testified as regard administrative steps taken by him in that regard.

41. PW28 Sh. Anil Misra, was posted as Commissioner and Secretary, Health Department, Government of Tripura, in year 1995. He had deposed as regard cancellation of 9 MBBS and 3 BDS seats unauthorisedly allocated for admission in different medical CC No.08/10 22 of 85 23 colleges of the country for the Academic Year 19891990 and 199091. PW28 further deposed that only Director of Health Services, was competent to issue nomination letters to the candidates for admission in first year MBBS & BDS Course at the relevant time.

42. PW29 is Sh. Pradeep Kumar Sarkar, Lokayukt, State of Tripura, in year 199091, was posted as District & Sessions Judge, Tripura (West), and had made inquiries after having received the orders passed by Agartala Bench of Hon'ble Assam High Court at Guwahati.

43. PW30 HC Ramesh Chandra, CBI, SCIII, New Delhi, has deposed as regards the summons given to him for service of Vipin Bihari Mathur, a witness, cited by prosecution. The witness also proved the fax copy of Death Certificate Ex. PW30/D to the effect that witness Vipin Bihari Mathur had died on 04.02.2002.

44. Letter dated 06.09.1990 Ex. PA, issued by S. Chakarvorty, PA to Chief Minister, Tripura, was admitted by accused Gurdial Singh, who had admitted that said letter was handed over by him to IO on 07.02.1997 vide seizure memo CC No.08/10 23 of 85 24 Ex. PB dated 07.02.1997.

45. Accused were examined under Section 313 Cr. P.C and their statement recorded.

46. In his statement recorded U/S 313 Cr. P.C, accused Gurdial Singh, denied the allegations of any conspiracy with the coaccused or anyone else and has denied any role by him in suppression of additional 5 MBBS seats and 2 BDS seat allocated to Government of Tripura by Ministry of Health and Family Welfare, Government of India, New Delhi. Accused Gurdial Singh, further took the stand that being a Resident Commissioner, apart from liasioning between the Central Government and State of Tripura, his job was to carry out the orders of CM, Governor and the Councils of Ministers of State of Tripura. Further accused Gurdial Singh, had taken the stand that there was no gazetted notification or any other written orders laying down that only Director Health Services was empowered to issue nomination letters to the candidates for Ist year MBBS and BDS Course as nominee of Tripura. He had signed the nomination letters on the instructions and orders from the Chief Minister's office.

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The orders were carried out by him in good faith and bonafide belief following the instructions of the Chief Minister. Further, accused Gurdial Singh did not dispute the signing of nomination letter in favour of coaccused Adnan Masood for admission in first year MBBS course in Patna Medical College, Bihar for the Academic Year 199091. Accused Gurdial Singh also took the stand that allottment of seats which are allocated to State of Tripura by Central Government, Ministry of Health and Family Welfare, Government of India, was done in a transparent manner and the nomination letters were issued on the instructions and orders from the Chief Minister's office. Accused Gurdial Singh, has denied having misused his position as a public servant stating that he had obtained no gain to himself, denying any personal interest with regard to nomination of the candidates concerned. No witness was examined by the accused no.1, Gurdial Singh, in his defence.

47. In his statement recorded under Section 313 Cr. P.C, accused no.2, Rasheed Masood denied the allegations of any conspiracy with coaccused or anyone else taking the CC No.08/10 25 of 85 26 stand that his role as Health Ministry, Government of India, and he as Health Minister, was only to allocate medical seats to different States/ Union Territories, which were not having medical colleges of their own as per the requirement and need of the particular State. Accused no.2, Rasheed Masood also stated that he had not played any further role in the matter, and he had nothing to do with the nominations of the students against the seats allocated to any particular State, including Tripura. Accused Rasheed Masood, denied having misused his official position as public servant for any wrongful gain. It is also the case of the accused Rasheed Masood that there was no legal evidence against him, and the Sanction Order to prosecute him, was made without application of mind.

48. Accused Rasheed Masood has admitted the fact that coaccused Adnan Masood( since declared Juvenile) is his nephew. However, stated that his relation with family of Adnan Masood, were not cordial and that they were not even on talking terms. Accused Rasheed Masood denied any knowledge about the education, status or nomination or admission of coaccused Adnan Masood in Patna Medical CC No.08/10 26 of 85 27 College, Patna, Bihar for Academic Year 199091 in MBBS course.

49. Arguments were heard on behalf of the prosecution and the accused persons. Written submissions were also placed on record on behalf of the accused persons.

50. As per the Government of Tripura, Education Department Notification dated 07.04.1989, published in the Extraordinary Issue of Tripura Gazzeette, Tripura Board of Joint Entrance Examination, was constituted for conducting Joint Entrance Examination for admission to Engineering, Medical, Dental, Agricultural, Veterinary, and other Professional Degree Courses, against seats served for the State of Tripura including the seats of Tripura Engineering College. Eligibility for admission to the Joint Entrance Examination was prescribed in Regulation 4 of the same, which reads as under:

"4. Eligibility for admission to Examination: The applicant must be an Indian Citizen and a permanent resident of Tripura in terms of Memorandum No. F.28(31)REV/87 dated 12.12.1988 of the Revenue Department, CC No.08/10 27 of 85 28 Government of Tripura, which stipulates that the applicant or his/her parents must have stayed in Tripura for a continuous period of 10 (ten) years or more till the date of issue of the Certificate by the DM/ADM/SDO, and have passed/appeared/due to appear in the year of the examination at the Higher secondary Examination of Tripura Board of Secondary Education/Central Board of Secondary Education or equivalent with the subject in which he/she desires to appear at the Joint Entrance Examination.

In case a candidate is not a permanent Resident of Tripura but his/her parent is an Officer on deputation to the Government of Tripura/Officer of the Central Government working in Tripura and has served in Tripura for a period of 3 years or more and passed Higher Secondary Examination from an Institution of Tripura he/she is eligible for seats of Tripura Engineering College. Children of all India services Officers borne in Manipur Tripura cadre will be eligible to appear at the examination irrespective of their prior stay in Tripura".

51. PW15 C.L. Bhatia, was the Desk Officer in the Medical Education Desk of the Ministry of Health and CC No.08/10 28 of 85 29 Family Welfare, Government of India, Nirman Bhawan, New Delhi, during the period 199091, had proved the letter no. U. 14014/15/90ME(UG) dated 03.05.1990, Ex. PW15/B, according to which 16 MBBS and 2 BDS seats for admission to the first year courses, were allotted to State of Tripura by the Central Government in various medical and dental colleges mentioned therein. PW15 C.L. Bhatia, further proved letter no. U.14014/15/90ME(UG) dated 31.07.1990, Ex. PW15/C, signed by Smt. Amarjeet Kaur, Deputy Secretary, Department of Health, Government of India, vide which 4 MBBS and 2 BDS seats were allocated to the Government of Tripura. PW15 C.L. Bhatia, further proved that again vide letter no. U.14014/15/90ME(UG) dated 22.08.1990, one more seat was allocated to Government of Tripura, from Central Pool, by the Central Government in Magadh Medical College, Gaya. A spare copy and endorsement on the letter had been proved by the witness as Ex. PW15/E. Endorsement was, "delivery of 3 endorsements, original copy and office copy given to Sh. Laxman, Peon to Deputy Secretary(M) for handing it over to OSD, HFM, office CC No.08/10 29 of 85 30 copy awaited", and this endorsement was made by him on Ex. PW15/E, and endorsement has been proved as Ex. PW15/D. PW15 C.L. Bhatia, has thus proved that for the Academic Year 199091, 21 MBBS seats and 4 BDS seats for admission in Ist Year MBBS/BDS Courses from the Central Pool, were allocated to State of Tripura. PW15 C.L. Bhatia, has also proved the detailed guidelines issued by Central Government vide letter no. U14014/84/86ME(UG) dated 09.12.1986, Ex. PW15/M (Photocopy of guidelines) broadly defining eligibility conditions of the candidates, to be nominated by States/UTs against the seats allocated to them by Central Government, which were particularly for the residents of the particular State/UT, or the children of the employees working therein.

52. PW27 Shashi Prakash, was posted as Commissioner, Department of Health, Government of Tripura at Agartala during the period November 1991 to October 1992, and had testified that in July, 1992, he had received a confidential communication from Sh. Sudhir Sharma, Commissioner, Higher Education, regarding a matter under CC No.08/10 30 of 85 31 consideration of Hon'ble High Court, relating to suppression of number of MBBS and BDS seats. The letter has been proved by PW27 Shashi Prakash, as Ex. PW27/A. After some internal exercise having been done, it was found that there was a shortfall of 4 MBBS and 1 BDS seat, and in a note to Director of Health Services, had confirmed that they were having knowledge of only 22 MBBS and 2 BDS seats. Note endorsed by Sh. K.L. Roy, then Director of Health Services, Government of Tripura, has been proved by the witness as Ex. PW27/E. 4 MBBS and 1 BDS seat were not communicated to the Joint Entrance Board for nomination of the candidates and intimation was sent by the witness to Union Health Ministry, and note Ex. PW27/F in that regard has been proved.

53. PW28 Anil Misra, was posted as Commissioner and Secretary, Health Department, Government of Tripura in 1995. PW28 Anil Misra has deposed as regard note Ex. PW17/N14( Note no.14) in File No.F.11(105)ET/MS/90 Sub File III, vide which he proposed for sending all the communications to different medical colleges where 9 MBBS CC No.08/10 31 of 85 32 and 3 BDS seats were unauthorizedly allocated, cancelling the allocations and lodging of FIR. PW28 Anil Misra, also deposed that incorrect allocations were made by Sh. A.K.Roy, and Sh. Gurdial Singh, for the Academic Year 198990 and 199091 respectively. PW28 Anil Misra, also deposed that after proposals were approved by the Health and Family Welfare Minister, Tripura, he had sent the file vide his note Ex. PW17/N16, to Directorate of Health Services for further action.

54. PW22 is S.S. Sharma, who was the Principal, Secretary, Incharge of Health and Forests Department, State of Tripura from December 1989 to February 1991, and deposed that during that period, Health Department files were moving through him. PW22 S.S. Sharma, deposed that vide Note no. 18 dated 27.11.1990, in file No. F11(105)/E.T/MS/90 Volume II, ( sub file) D21, pertaining to admission for study in MBBS Course for Session 199091, which was submitted by then Special Secretary stating that SC candidate Uttam Kumar Dass, out of the list furnished by Chairman TBJEE, was nominated for the allotted seat at CC No.08/10 32 of 85 33 Darbhanga Medical College, Laheriasarai, Bihar, however, said Uttam Kumar Dass, was refused admission by the Principal on the ground that one Ms. Geeta Banik, had already been admitted against the reserved seat on the strength of nomination letter dated 10.09.1990. Note No. 18 dated 27.11.1990, has been proved by the witness as Ex. PW22/N. PW22 S.S. Sharma, has further deposed that then Special Secretary, Dr. R. Dutta , further submitted that no nomination letter was issued in favour of Ms. Geeta Banik, from Directorate of Health Services nor did she qualify nor her name was included in the merit list published by TBJEE.

55. PW22 S.S. Sharma, has also proved a note, later on scored off being Ex. PW22/O, below the note dated 12.12.1990, which was scored off subsequently, written by the Chief Minister in his own handwriting to the effect that: " As she is already admitted, she may continue". The witness has also proved note dated 27.11.1990 under signature of Sh. N.C. Singh, then Deputy Secretary of Health Department and noting being Ex. PW22/P, to the effect that Director Health had not issued any nomination in favour of Ms. Geeta Banik, CC No.08/10 33 of 85 34 further mentioning that said Ms. Geeta banik did not qualify herself in the Joint Entrance Examination, and her name was not included in the merit list of Tripura Board of Joint Entrance Examination. PW22 S.S. Sharma, also proved another noting by then Chief Minister dated 03.12.1990 vide Note no. 23, to the effect "As she is admitted, she may continue". PW22 S.S. Sharma, further proved that Note No. 35 dated 06.12.1990 by the then Chief Minister S.R. Majumdar, to the effect " As Smt. Banik already admitted, Sh. Dass may be given first priority in the next session". Signatures of then Chief Minister and Endorsement Ex. PW22/V2, has been proved by him.

56. PW20 Dr. Nilmoin Deb Barman, worked as Director, Health Services, Government of Tripura from year 1984 to year 1991. PW20 Dr. Nilmoin Deb Barman, has deposed as regard the selection of candidates of State of Tripura for nomination to the Medical and Dental Colleges seats, allocated to the State of Tripura by Central Government, and deposed that uptill 1988, there was no written test and nomination used to be made on the basis of marks obtained by CC No.08/10 34 of 85 35 the candidates in 10 +2 examination or Equivalent examination and after 1988, Tripura Joint Entrance Examination Board was constituted, and seats used to be allotted to the candidates on the basis of their position in the merit list, prepared for admission in MBBS and BDS Course. The witness has proved the notings made by Sh. R. Dutta, Special Secretary, Health, at the relevant time relating to the action taken on behalf of the department in regard to the issue in different files.

57. PW17 Bikas Roy, deposed that nomination letter used to be issued to the candidates, on the basis of the merit list, sent by TBJEE, by Director of Health Services, State of Tripura, and no, other person except the Director of Health Services, State of Tripura, was competent to nominate the students for admissions in MBBS and BDS Course against State quota seats. The witness had worked as Director Health Services, from year 1996 to year 1988. The result of Joint Entrance Examination, 1990 arranged in order of merit under signature of A.K. Misra Ex. PW17/D( copy has been proved by the witness). Separate list for General candidates, SC CC No.08/10 35 of 85 36 candidates and ST candidates for Academic year 199091 by TBJEE had also been proved by this witness. The witness also deposed as regard the cancellation of the candidature of candidates, who were given the nomination unauthorizedly by accused Gurdial Singh, and for earlier year by Sh. A.K. Roy, the then Secretary to the Chief Minister for which a separate prosecution is going on, launched by CBI.

58. The prosecution case is that 4 MBBS and 2 BDS seats allocated to State of Tripura as per letter dated 31.07.1990 Ex. PW15/C, and one MBBS seat allocated to State of Tripura vide letter dated 22.08.1990 Ex. PW15/E, were concealed from the authorities in the Health Department of Government of Tripura, and were not placed for making recommendations before Tripura Board of Joint Entrance Examination, and instead, accused Gurdial Singh made nominations in favour of noneligible candidates, not entitled to be nominated to those seats as nominee of Tripura.

59. PW7 Sukhamoy Dey, being Protocol Officer, Government of Tripura, had proved the nomination letter no. F.11(105)ET/MS/90, Ex. PW6/C dated 06.08.1990 in favour CC No.08/10 36 of 85 37 of accused no.3, Adnan Masood for admission in the first year MBBS/BDS Course in Patna Medical College, Patna for Academic year 199091. Even otherwise, nomination letter in his favour dated 06.08.1990 Ex.PW6/C under signature of accused no. 1, Gurdial Singh, is not disputed by accused no.1, Gurdial Singh.

60. The stand taken on behalf of accused no.1, Gurdial Singh is that no specific authority had been proved by the prosecution through the deposition of the witnesses to the effect that there was a particular or specific authority of the State Govt. competent to issue nomination letters to the students seeking admission in MBBS/BDS courses against the seats reserved from the Central Pool. It has been further contended that there is a complete ambiguity about the specific authority which was competent to issue nomination letter and in the circumstances, he was competent to sign the nomination letter on the instructions of the Chief Minister and other senior officers. It has been contended by the accused no.1, Gurdial Singh that as Resident Commissioner, he was bound to follow the instructions of Chief Minister, Council of CC No.08/10 37 of 85 38 Ministers and other senior officers from the State of Tripura. Further contention on behalf of accused no.1, Gurdial Singh is that no complaint has been made by any statutory authority or any individual against the nomination letter or the admission process. Further contention of accused no.1, Gurdial Singh is that there is no documentary or oral evidence on record to suggest that he had ever met the students in question or other coaccused and prosecution failed to bring prior concert or arrangement between Gurdial Singh and coaccused namely Adnan Masood or that he was in touch with other coaccused.

61. Contention on behalf of accused Rasheed Masood is that there was no evidence against him linking with any suppression of the seats allocated to the State of Tripura or any role in issuance of nomination letters to the candidates. It has been contended on behalf of accused Rasheed Masood that there had been no instructions from him to conceal the letters allocating seats to State of Tripura, from Govt. of Tripura, nor were any directions for nomination for any seat in favour of anyone.

62. As regards the contention on behalf of accused CC No.08/10 38 of 85 39 persons that Chief Minister, Tripura at that time was having the discretion and had been exercising that discretion in allocation of seats, reference in this regard has been drawn on behalf of accused no.1, Gurdial Singh to the testimony of PW17, Dr. Bikas Roy. Reference is to the cross examination of PW17, Dr. Bikas Roy, who was Director of Health Services, Govt. of Tripura from year 1996 to year 1998 and was working in the Directorate of Health Services, Tripura in the relevant year also, conducted on behalf of accused no.1, Gurdial Singh, wherein in response to a suggestion, the witness had stated that it was correct that at that point of time, the Chief Minister used to exercise his discretion for nomination/allocation of seats. However, in the same breath, the witness had stated that Chief Minister at that time had no discretionary power to nominate students for admission of MBBS/BDS courses or having any discretionary quota. The witness had also reiterated that during his cross examination, he had reiterated several times that the Chief Minister of Tripura was not having any discretionary quota at the relevant time i.e. year 19901991. Apart from the testimony of PW17, CC No.08/10 39 of 85 40 PW20 Dr. Nilmoin Deb Barman, who was Director of Health Services, Govt. of Tripura from year 1984 to year 1991, has reiterated specifically in his deposition that no one including the Chief Minister of State of Tripura or Health Minister of Central Govt. had any discretionary power to nominate the students for admission in the first year MBBS/BDS courses against the seats allocated to State of Tripura, reiterating that only Director of Health Services used to issue nomination letters to the selected candidates and the selection, was to be made as per the procedure which has been detailed in preceding paras of the judgment. PW22, S.S.Sharma, who was Principal Secretary, Incharge of Health & Forest Departments, State of Tripura from December, 1989 to February, 1991 had also deposed that it was only the Director of Health Services, the authority empowered by the State Government to issue nomination letters on the basis of merit list forwarded to the Director of Health Services by the Board of Joint Entrance Examination. PW22, S.S.Sharma further testified that to his knowledge, there was no discretionary quota available to anyone. PW27, Shashi Prakash, who was CC No.08/10 40 of 85 41 posted as Commissioner, Department of Health, Govt. of Tripura at Agartala during November, 1991 to October, 1992, also testified that to the best of his knowledge, no authority had any discretionary powers for issuing nomination letters for admission of candidates in the first year MBBS/BDS courses against the seats allotted by Central Government, Ministry of Health.

63. It was contended on behalf of accused no.1, Gurdial Singh that there was no specific bar on the Chief Minister of Tripura to use his discretionary powers in any manner. Reliance in this regard has been placed on a case decided by Hon'ble Supreme Court titled as "R. Sai Bharathi Vs J. Jayalalitha & Ors." JT 2003(9) SC 343 wherein in Para nos. 39 & 40 of the judgment, it was held by Hon'ble Supreme Court that "39. The law, which is pointed out is the code of conduct for Ministers, issued in G.O.Ms.No.1350 dated 26.07.1968 by the Govt. of Tamilnadu in the name of Governor. Para 2(b) thereof enjoins that a Minister, so long as he remains in the office, shall refrain from buying or selling to the Government, any immoveable property except where such property is compulsorily acquired by the Government in usual course.

CC No.08/10                                                                  41 of 85
                                            42

40. A perusal of the code would indicate that they lay down guidelines or norms of conduct which the Minister must observe. The rules also prescribe the authority which shall ensure compliance of the code and to whom various statements have to be furnished. The procedure to be followed is left to the discretion of that authority in case of breach of the code. That authority is the Chief Minister." It was further held by Hon'ble High Court in Para no.41 of the said judgment that: "41. In our view, the code of conduct in having a statutory force and not enforceable in a Court of law, nor having any sanction or procedure for dealing with a contravention by the Chief Minister, cannot be construed to impose a legal prohibition against the purchase of a property of the Government so as to give rise to a criminal offence punishable U/S 169 of IPC. In law, there must be a specific provision prohibiting an act to make it illegal. A code of conduct prescribed by the Government under certain notification by itself cannot be elevated to the level of law........."

64. The facts of the present case, it is respectfully submitted are totally distinct. It is not the case of the prosecution that the Chief Minister of Tripura was having any discretion and was to exercise the discretion, according to certain guidelines, provided for exercise of that discretion, same had been violated. In the case cited on behalf of accused and quoted earlier, the Minister or the Chief Minister of the CC No.08/10 42 of 85 43 State as a citizen, had the right to own and acquire the property, but while being a Minister, the code of conduct provided that they should not deal with the property belonging to Government, nor should they sell any personal property to the Government, so long they continue to be Minister, so as to ensure probity in public life.

65. There is nothing on record to suggest that the Chief Minister of Tripura was having any discretionary power in nomination of candidates, to the first year of MBBS/BDS courses during the year 199091.

66. In regard to the authority of the Director, Health Services to nominate the candidates for the seats allocated by Central Government as nominees of Tripura Government, it has been argued on behalf of accused persons that no specific authority for that has been proved on record by the prosecution. No notification issued by the Govt. of Tripura or any other documents have been produced. Attention was drawn on behalf of accused no.1, Gurdial Singh to the testimony of PW13, S.S.Srivastav, wherein in his cross examination, he had stated that no guidelines had been issued CC No.08/10 43 of 85 44 by Govt. of India, who further, in his cross examination conceded that no specific authority by State Government was indicated in their letters, entitling them to issue such nomination letters. Attention was also drawn to the document Ex. PW17/DX2 being note no.16 dated 29.01.1993 in file no. F1(I)COMM/HFW/92, wherein Sh. K.L.Roy, the then Director of Health Services had suggested that nomination issuing authority may be specified by a Government notification and copies of such notification be sent to concerned colleges Principals.

67. As regards the contention that no guidelines had been issued by Govt. of India in that regard, the Govt. of India was also not expected to issue any such guidelines as it was for the Govt. of Tripura to select its nominees as per the general guidelines vide letter no. U14014/84/86ME(UG) dated 09.12.1986 vide Ex.PW15/M for the seats allocated to it by the Govt. of India and to determine the authority by whom the nomination letters were to be issued. As regards, the contention that no specific authority of State Government of Tripura was indicated in their letters, the same was not CC No.08/10 44 of 85 45 required as authority to issue nomination letters has to be decided by the State Government and unless the suspicions are raised that the nomination letters are issued unauthorisedly by an authority not competent, there should be no such requirement. It was business being carried out by the State Government in its normal course, that the nomination letters issued by the competent authority, are to be respected by the Principals of the colleges when produced by the candidates. Accused no.1, Gurdial Singh himself was aware of the fact that it was the Director, Health Services, Govt. of Tripura who was competent to issue the nomination letters and that is, why a format prescribed for and used by Directorate of Health Services, Govt. of Tripura, was used by accused no.1, Gurdial Singh while issuing nomination letter Ex.PW6/C in favour of accused Adnan Masood for admission in Patna Medical College, Patna, Bihar. Apart from that, the Government of Tripura officers, who had appeared as witnesses in the case, had deposed specifically in that regard, stating that it was Director, Health Services, Govt. of Tripura, who alone was competent to issue nomination letters. Reference is CC No.08/10 45 of 85 46 particularly drawn in this regard to the deposition of PW17 Dr. Bikash Roy, who was Director of Health Services, Govt. Of Tripura from year 1996 to year 1998, PW20 Dr. Nilmoin Deb Barman, who was Director of Health Services, Govt. of Tripura from year 1984 to year 1991, PW22, S.S.Sharma, who was Principal Secretary, Incharge of Health & Forest Department, State of Tripura from December, 1989 to February, 1991 and PW28, Anil Misra, who was Commissioner and Secretary, Health Department, Govt. of Tripura in year 1995 as discussed in preceding paras. It makes no difference that any specific authority was not designated by the Govt. of Tripura to issue nomination letters, as it was a fact in common knowledge, known to all concerned, having a say in the affairs of the State of Tripura at that time. The letters allocating the seats for MBBS/BDS courses, Ex.PW15/B, Ex.PW15/C and Ex.PW15/E, were all addressed to the Secretary, Health & Family Welfare Department, Govt. of Tripura. There was a detailed procedure adopted by the Govt. of Tripura, for selection of the candidates as per the notification being known as Tripura CC No.08/10 46 of 85 47 Board of Joint Entrance Examination Regulations, 1989. Merely because a specific authority had not been designated or that same had not been communicated to accused no.1, Gurdial Singh, acting as Resident Commissioner, State of Tripura at the relevant time, does not mean that accused no.1, Gurdial Singh was also entitled to issue nomination letters for admission in MBBS/BDS courses against the seats allocated by Govt. of India in the Ministry of Health & Family Welfare to Govt. of Tripura. The testimony of PW22, S.S.Sharma and the relevant notes in the said file, clearly proves that nobody has questioned the authority of Health & Family Welfare Department, Govt. of Tripura and the authority of Director, Health Services to nominate candidates against the seats allocated by the Central Government.

68. As regards the suppression and concealment of allocation of 4 MBBS and 2 BDS seats, allocated vide letter no. U.14014/15/90ME(UG) dated 31.07.1990 Ex.PW15/C by the Ministry of Health & Family Welfare, Union of India to the Govt. of Tripura from officers of Department of Health, Directorate of Health Services and Tripura Board of Joint CC No.08/10 47 of 85 48 Entrance Examination, the contention on behalf of accused persons is that there was no suppression of the same, as there were directions by the Ministry of Health & Family Welfare, Union of India to the concerned colleges to intimate Government of India, the nominations of the students who had taken admission within 7 days, the State Governments were also requested to send the consolidated list/lists to the Ministry of Health & Family Welfare, mentioning the nomination of candidates, colleges, dates of admission. It was also claimed that there was no dispute as regard the sending of letter Ex.PW15/C as same is deemed to have been delivered to the other side, as per the General Clauses Act when the letter was addressed to the Secretary, Health, Tripura. It was also claimed that Investigating Officer did not seize the diary and receipt register of the Department of Health, Tripura Govt. to prove receipt or otherwise of the letter Ex.PW15/C. Office copy of letter dated 31.07.1990, which has been proved as Ex.PW15/C by PW15, C.L.Bhatia shows that the copy marked to Resident Commissioner, Govt. of Tripura has been received by one Shripal Singh on 30.07.1990 whereas the CC No.08/10 48 of 85 49 letter is dated 31.07.1990. Also, the letter as such, showing on the front page addressed to the Secretary, Health & Family Welfare Department, Govt. of Tripura, has been received by said Sh. ShriPal Singh on 30.07.1990 whereas the letter is dated 31.07.1990 and so, no inference can be drawn as having the letter reached the Secretary, Health & Family Welfare Department, Govt. of Tripura, as there is no proof of the letter having been dispatched at the address of Secretary, Health & Family Welfare Department at Agartala, Tripura having been received in the office of Resident Commissioner, Govt. of Tripura at New Delhi.

69. PW22, S.S.Sharma, who was Principal Secretary, Incharge of Health & Forest Department, Govt. of Tripura from December, 1989 to February, 1991 had deposed that note no.1 and note no.2 dated 17.10.1990 in file No.F11(105)/E.T/MS/90 which were exhibited as Ex.PW22/A, Director of Health Services had referred to a letter received from Principal, Darbhanga Medical College, Laheria Sarai, Bihar, regarding allotment of a MBBS seat. PW22 S.S.Sharma also deposed that vide note no.18 dated CC No.08/10 49 of 85 50 27.11.1990 in the said file, the then Spl. Secretary had submitted that a SC candidate Uttam Kumar Dass, out of the list furnished by the Chairman, TBJEE, was nominated for the seat allocated, to Darbhanga Medical College, Laheriasarai, Bihar. However, said Uttam Kumar Dass was refused admission to the College by the Principal on the ground that Ms. Gita Banik had already been admitted against the reserved seat on the strength of nomination letter dated 10.09.1990. PW22, S.S.Sharma further deposed that, the then Special Secretary further submitted that no nomination letter was issued to Ms.Gita Banik from the Directorate of Health Services nor she was qualified nor her name was included in the merit list published by TBJEE. PW22, S.S.Sharma, also proved note no.23 dated 13.12.1990 made by the then Chief Minister Ex.PW22/R to the effect "as she is admitted, she may continue". It is from the deposition of PW22, S.S.Sharma alongwith relevant notes in file No.F11(105)/E.T/MS/90, clear that Health & Family Welfare Department, Govt. of Tripura was not aware of the nomination of Ms. Gita Banik to Darbhanga Medical College, Laheria Sarai in MBBS first year CC No.08/10 50 of 85 51 course, which was the seat allocated to Govt. of Tripura as per letter dated 31.07.1990 till Uttam Kumar Dass, the candidate nominated against the seat, by Govt. of Tripura reported back that he was refused admission on the ground that another candidate for the seat namely Ms. Gita Banik had been nominated and had got admission and it was at this stage, Health & Family Welfare Department, Govt. of Tripura came to know about the nomination letters having been signed by accused no.1, Gurdial Singh as Resident Commissioner for the seats allocated to the State of Tripura by Ministry of Health & Family Welfare, Govt. of India. The contention on behalf of accused persons is only for drawing inference as regard the knowledge of the concerned officers, because of the communications regarding utilization of seats, intimations by the Principals of Colleges, which was required to be given. The letter dated 31.07.1990, Ex. PW15/C, was not dealt with by the Department of Health & Family Welfare, Govt. of Tripura and it is not the case of the accused no.1, Gurdial Singh that he had been entrusted any file relating to the selection of candidates on the basis of which he made the CC No.08/10 51 of 85 52 nominations, but it is stated that he did so, at the instructions of the Chief Minister. Thus, it is clear that the seats allocated to the State of Tripura vide letter dated 31.07.1990 Ex.PW15/C were not communicated to the Department of Health & Family Welfare, Govt. of Tripura nor they were placed before Tripura Board of Joint Entrance Examination for making recommendations as regard the candidates to be nominated.

70. Accused persons have been charge for offence punishable U/S 120B IPC r/w Sections 420/467/468/471 IPC and Section 13(2) r/w Section 13(1)(d) of Prevention of Corruption Act, 1988. Criminal conspiracy has been defined in Section 120A IPC and is made punishable under Section 120B IPC. Section 120A IPC reads as under:

S. 120A. Definition of criminal conspiracy. When two or more persons agree to do, or cause to be done, (1) An illegal act, or (2) An act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:

Provided that no agreement except an agreement to commit an offence shall amount CC No.08/10 52 of 85 53 to a criminal conspiracy unless some act besides the agreement is done by one or more partners to such agreement in pursuance thereof.

Explanation. It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.

As regards the existence of conspiracy in the matter, the matter would not have seen the light, perhaps, but for the letter written by Dr. S.S.Srivastav, Principal, Darbhanga Medical College, Laheriasarai, Bihar intimating the Secretary, Health & Family Department, Govt. of Tripura, Agartala, being letter Ex.PW22/U4 about the seat allocated by Govt. of India, Ministry of Health & Family Welfare, of one MBBS seat for Tripura in Darbhanga Medical College, Laheriasarai, Bihar, vide their letter dated 31.07.1990 Ex.PW15/C. Pursuant to the letter Ex.PW22/U4, received from Dr. S.S.Srivastav, Principal Darbhanga Medical College, Director of Health Services, Govt. of Tripura nominated one Uttam Kumar Dass, a Scheduled Caste candidate against the seat in Darbhanga Medical College, Laheriasarai, Bihar vide letter dated 16.11.1990. However, said Uttam Kumar Dass CC No.08/10 53 of 85 54 was denied admission and vide letter dated 22.11.1990, Dr.S.S.Srivastav, Principal Darbhanga Medical College, intimated the Directorate of Health Services, Govt. of Tripura that they have already nominated Ms.Geeta Banik vide their letter No.F.11(105)E.T./MS/90 dated 10.09.1990 and she had been admitted on 15.09.1990. Nomination in favour of Uttam Kumar Dass was not accepted by the Darbhanga Medical College, Laheriasarai, Bihar. On return, Sh. Uttam Kumar Dass, made representation to various Govt. authorities and when nothing came out, he approached Hon'ble Assam High Court at Guwahati (Agartala Bench) and where after hearing about irregularities in making nominations, Hon'ble Assam High Court at Guwahati (Agartala Bench), vide orders dated 17.07.1991, directed an enquiry to be conducted by Sh.

P.K.Sarkar, the then District & Sessions Judge, Tripura (West) and after the enquiry report, was submitted, it came to light that various irregularities were committed for admission to MBBS/BDS seats allocated to State of Tripura for the academic year 19891990 and also year 19901991. It was after an enquiry was conducted by CBI, pursuant to the CC No.08/10 54 of 85 55 directions given by Hon'ble Assam High Court, Guwahati (Agartala Bench), vide order dated 01.02.1996, for transferring the case to CBI for investigation from P.S Chanakya Puri, New Delhi, where the FIR was initially registered, the matter had been unearthed.

71. Accused no.1, Gurdial Singh is the visible face of the conspiracy, since he was not competent to issue nomination letters, being a Resident Commissioner and his job confined only to the liasoning work between the Govt. of India and State Govt. of Tripura. It was well within knowledge of accused no.1, Gurdial Singh while signing the nomination letter Ex.PW6/C in favour of coaccused Adnan Masood, since nomination letters were issued by him on the proforma of Directorate of Health & Family Welfare Department, Govt. of Tripura. As a high ranking government officer, he cannot seek shelter that instructions were given by Chief Minister, Tripura for signing the nomination letters in favour of the candidates and he had signed the same. Letter dated 31.07.1990 Ex.PW15/C, which was addressed to the Secretary, Health & Family Welfare, Govt. of Tripura, did not CC No.08/10 55 of 85 56 reach the place and perusal of the letter Ex.PW15/C, shows that copy addressed to the Resident Commissioner, Govt. of Tripura as well as the letter itself, were both received by one Shripal Singh meaning thereby that both, the letter as well as the copy thereof, were delivered at the office of Resident Commissioner, Govt. of Tripura in New Delhi. It was also claimed on behalf of accused Gurdial Singh that he had gone by the precedent, since in the past also, nomination letter had been signed by his predecessor. When pointed out that A.K.Roy, Secretary to the then Chief Minister, Tripura, Agartala, was not his predecessor, it was contended on behalf of accused Gurdial Singh that Tripura is a small place and officers were aware of the action being taken by different branches of the government. If that be the case, accused no.1, Gurdial Singh, should also have been aware that nomination letters are being issued by Director, Health Services, Govt. of Tripura and in fact, Director Health Services had been issuing the nomination letters, but for the two cases, pertaining to the academic year 19891990 and 19901991, which were signed once by the Secretary to the Chief Minister and on another CC No.08/10 56 of 85 57 occasion, by accused no.1, Gurdial Singh, acting as Resident Commissioner, Govt. of Tripura, New Delhi. Then, there is a clinching evidence of conspiracy since endorsement to Desk Officer, Ministry of Health & Family Welfare, Government of India, of nomination letter Ex. PW6/C, in favour of accused Adnan Masood, the reference is to letter dated 03.05.1990, Ex. PW15/B, but the medical seat of Patna Medical College, Patna, was not allocated to Government of Tripura, vide letter Ex. PW15/B.

72. The next question is whether the nomination letter dated 06.08.1990 Ex.PW6/C in favour of accused Adnan Masood for admission in Patna Medical College, Patna, Bihar can be considered a forged document. Accused Gurdial Singh has been charged for the offences punishable U/S 467 as well as 468 IPC for forging nomination letter No.F. 11(105)E.T./MS/90 dated 06.08.1990. The nomination letter Ex.PW6/C has been issued on the proforma of Govt. of Tripura, Directorate of Health Services and same has been signed by accused no.1, Gurdial Singh as Resident CC No.08/10 57 of 85 58 Commissioner, Govt. of Tripura, Kautilya Marg, Chanakya Puri, New Delhi and stamp of the Resident Commissioner has been affixed. It has been contended on behalf of accused no. 1, Gurdial Singh that no forgery of any document, whatsoever is involved, as the document has been signed by accused no.1, Gurdial Singh under his own signature and stamp. Reliance in that regard has been placed on a case decided by Hon'ble Supreme Court of India titled as Mohd. Ibrahim & Ors. Vs State of Bihar & Anr. 2009 (4) Crimes 13 (SC) wherein after analysis of Section 464 of the IPC, Hon'ble Supreme Court in Para 10 of the judgment stated that Section 464 IPC shows division of false documents into three categories

1. first category is where a person dishonestly or fraudulently makes or executes a document with an intention of causing it to be believed, that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows that it was not made or executed.

2. The second category is where a person dishonestly or fraudulently, by cancellation or otherwise alters a document in any material part, without lawful authority after it has been made or executed either by CC No.08/10 58 of 85 59 himself or by any other person.

3. The third category is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not by any reason of (a) unsoundness of mind, (b) intoxication, or (c) deception practised upon him, knows the contents of the document or the nature of the alteration.

73. With due respect, it is submitted that the case law being relied upon on behalf of accused Gurdial Singh does not help his case in view of the facts of the case, since the nomination letter Ex.PW6/C in question is a document executed by accused Gurdial Singh on the proforma of Govt. of Tripura, Directorate of Health Services and anyone looking at the document, will come to the conclusion that it has been executed by the authority of the Directorate of Health Services and so, it will be a case falling under the category no.1 as analysed by Hon'ble Supreme Court in the case law being relied upon on behalf of accused no.1, Gurdial Singh.

74. On behalf of accused no.1, Gurdial Singh, it has been argued that prosecution as against him is null and void as the Sanction Order itself suffers from grave and inherent CC No.08/10 59 of 85 60 defect. The contention being raised on behalf of accused Gurdial Singh is that the sanctioning authority PW2 P.S. Pillai, in his crossexamination admitted that he did not undertake any independent inquiry with regard to the facts and figures brought by CBI. It has been further contended on behalf of accused no.1, Gurdial Singh, that The President of India, is the competent authority to grant sanction for prosecution, and no material is forthcoming to show that any steps were undertaken from the President's office to collect facts for according sanction to prosecute the accused Gurdial Singh. PW2 P.S. Pillai, was working as Under Secretary in the Ministry of Home Affairs, Government of India, and has mrely authenticated the order of the President of India according sanction, and Sanction Order Ex. PW2/A, has been proved by the witness. In his Examinationinchief, PW2 P.S. Pillai, also stated that he had also examined oral and documentary evidence in the case but PW2 P.S. Pillai, was not the sanctioning authority.

75. It has been held by Hon'ble Supreme Court in a case titled as State Vs. K. Narasimhachary AIR 2006 CC No.08/10 60 of 85 61 Supreme Court 628(1), that order of sanction was an executive action of State, having been issued in the name of the Governor, and same was authenticated in the manner specified in the Rules of Executive Business. It was further held by Hon'ble Supreme Court that since the authenticity of the order had not been questioned, it was therefore, a public document within the meaning of Section 74 of the Evidence Act, and same can be proved in terms of Sections 76 to 78 of the Evidence Act. The sanction order Ex. PW2/A, is running into 5 pages, and details of the allegations constituting the offence against accused Gurdial Singh, had been given. The order of sanction was thus issued by Government of India in discharge of its statutory functions in terms of Section 19 of the Prevention of Corruption Act, 1988 and under Section 197 of the Code of Criminal Procedure, 1973. There is no substance in the contention being raised on behalf of the accused Gurdial Singh, that prosecution against accused no.1, Gurdial Singh, was null and void.

76. Accused no.1, Gurdial Singh has been further charged for offence punishable U/S 420 IPC for the CC No.08/10 61 of 85 62 allegations that by signing the nomination letter Ex.PW6/C in favour of accused Adnan Masood for admission in MBBS course in Patna Medical College, Patna, Bihar for the academic year 19901991 unauthorisedly without any competency to sign the same for admission of the student as nominee of Tripura, had consequently caused damage/loss to bonafide residents of State of Tripura alongwith Govt. of Tripura as such. Section 420 IPC reads as under: S. 420. Cheating and dishonestly inducing delivery of property Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to 7 years, and shall also be liable to fine.

The evidence brought on record and proved on behalf of prosecution is only to the extent of signing of the nomination letter Ex.PW6/C unauthorisedly on the basis of which accused Adnan Masood had taken admission in the CC No.08/10 62 of 85 63 Patna Medical college, Patna, Bihar. However, there is no evidence on record produced on behalf of prosecution, that any inducement was ever made by accused no.1, Gurdial Singh to anyone for delivery of any property to any person or to cause wrongful gain to anyone or wrongful loss to anyone. It was a false document executed by accused no.1, Gurdial Singh and handed over to coaccused Adnan Masood and whatever inducement or representation has been made, has been made by accused Adnan Masood while seeking admission to the first year MBBS course in Patna Medical College, Patna, Bihar. So, ingredients of offence punishable U/S 420 IPC are not made out against accused no.1, Gurdial Singh.

77. Further, accused no.1, Gurdial Singh has been charged for offence punishable U/S 467 IPC. The question is whether the nomination letter Ex.PW6/C in favour of co accused Adnan Masood is a valuable security or not. Section 30 of IPC defines valuable security as : " 30. Valuable Security The words CC No.08/10 63 of 85 64 "valuable security" denote a document which is, or purports to be, a document whereby any legal right is created, extended, transferred, restricted, extinguished or released, or whereby any person acknowledges that he lies under legal liability, or has not a certain legal right."

78. The nomination letter no. F.11(105)ET/MS/90 dated 06.08.1990 Ex.PW6/C issued in favour of coaccused Adnan Masood by accused no.1, Gurdial Singh was a document on the basis of which coaccused had sought admission in Patna Medical College, Patna, Bihar, but the document itself is not creating any legal right as such nor any legal right is extended, transferred, restricted, extinguished, released nor purports to be doing that. The document also does not create any acknowledgment against a person to the effect that he lies under legal liability or does not have a certain legal right. Nomination letter Ex.PW6/C in the hands of accused Adnan Masood could be highly valuable thing entitling him to seek admission in MBBS course, but it by itself does not create, extend, transfer etc. any legal right and so, cannot be termed as a valuable security. Ingredients of offence punishable U/S 467 IPC as regards forging of a CC No.08/10 64 of 85 65 document which purports to be a valuable security etc. are not made out against accused no.1, Gurdial Singh.

79. Accused no.1, Gurdial Singh has also been charged for offence punishable U/S 471 IPC to the effect that while issuing the nomination letter Ex.PW6/C in favour of accused Adnan Masood, accused no.1, Gurdial Singh used a genuine document, to wit, the nomination letter Ex.PW6/C knowing or having reason to believe the same to be a false or forged document. There is no evidence on record brought by prosecution to prove the said charge against accused no.1, Gurdial Singh.

80. Accused no.1, Gurdial Singh has been further charged for offence punishable U/S 13(2) of the Prevention of Corruption Act, 1988 r/w Section 13(1)(d) of Prevention of Corruption Act, 1988 charging him of criminal misconduct, being a public servant and thereby causing pecuniary advantage to himself or to coaccused Adnan Masood.

Section 13(1)(d) of Prevention of Corruption Act reads as under: CC No.08/10 65 of 85 66 " (d) if he,

(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or

81. There is evidence on the record that accused no.1, Gurdial Singh was not competent or authorised to issue nomination letter no. F.11(105)ET/MS/90 dated 06.08.1990, Ex.PW6/C, in favour of coaccused Adnan Masood and by adopting corrupt means, he issued a nomination letter in favour of accused and thus, obtained for coaccused Adnan Masood, a valuable thing in the form of nomination letter by abusing his position as a public servant. As opined earlier, nomination letter Ex.PW6/C cannot be termed as a valuable security, but it is a valuable thing, a very valuable thing, in the hands of Adnan Masood entitling him to obtain admission in CC No.08/10 66 of 85 67 Patna Medical College, Patna, Bihar and in fact, he got himself admitted in the said college on the basis of that. Thus, the ingredients of offence punishable U/S 13(2) of Prevention of Corruption Act r/w Section 13(1)(d) of Prevention of Corruption Act, 1988 are made out against accused no.1, Gurdial Singh.

82. As regards involvement of accused no.2, Rasheed Masood in the conspiracy, the evidence on the record is that coaccused Adnan Masood who has since been declared juvenile and his case transferred to the Juvenile Justice Board vide order dated 25.01.2007, was a nephew of accused Rasheed Masood, being son of his elder brother, Sh. Rashid Masood. Nomination letter Ex.PW6/C in his favour was issued by accused no.1, Gurdial Singh, being the Resident Commissioner of Govt. of Tripura, vide letter No.F.11(105) E.T./MS/90 dated 06.08.1990, for admission to first year MBBS course in Patna Medical College, Patna, Bihar in reference to the seats allocated to the State of Tripura by Ministry of Health & Family Welfare vide letter dated 03.05.1990 Ex.PW15/B. On behalf of accused no.2, Rasheed CC No.08/10 67 of 85 68 Masood, reliance has been placed on a case decided by Hon'ble Supreme Court of India titled as Sanjiv Kumar Vs State of HP (1999) 2 SCC 288 wherein it was held that "in absence of evidence to establish the agreement between accused Sanjiv Kumar and accused Kamlesh, the mere fact that Sanjiv Kumar was the nephew of Kamlesh was held to be not sufficient to lead to the inference of conspiracy. It was further held by Hon'ble Supreme Court that association of Sanjiv Kumar with Kamlesh being a relation is not enough to establish that both of them entered into a conspiracy. It was a case of circumstantial evidence wherein accused Sanjiv Kumar was seen in the company of the deceased in his house when the deceased was alone and thereafter, seen leaving the place of occurrence with a knife in his hand immediately after the occurrence. There was evidence establishing that Sanjiv Kumar with blood stained clothes on his person reached the house of the witness and requested her to bring a set of clothes from the house of coaccused. It was held by Hon'ble Supreme Court that recovery of blood stained clothes from the house of coaccused and reports of chemical examiner and serologist indicating presence of human blood on those clothes for which no explanation was offered by Sanjiv Kumar. The chain of circumstances were complete, but in regard to coaccused Kamlesh, it was held that in the absence of evidence to establish agreement between Sanjiv Kumar and Kamlesh to CC No.08/10 68 of 85 69 commit the murder, mere fact that Sanjiv was nephew of Kamlesh was held to be not sufficient to lead to an inference of conspiracy."

83. Coaccused Adnan Masood, was nominated to the Ist Year MBBS Course in Patna Medical College, Patna, vide nomination letter dated 06.08.1990, Ex. PW6/C, issued by accused no.1, Gurdial Singh. It has been contended on behalf of accused Rasheed Masood, that prosecution has failed to prove the conspiracy or abuse of the position by him, in getting the nomination letter issued in favour of accused Adnan Masood. Accused Rasheed Masood, is accused in 3 connected matters being CC No. 08/10, 09/10 and 11/10, all titled as CBI Vs. Gurdial Singh and others. In the present case, the accused, the candidate nominated for admission to Ist year MBBS Course at Patna Medical College, Patna, Bihar, as nominee of State of Tripura, for year 199091, was Adnan Masood, whose case has since been transferred to Juvenile Justice Board, vide order dated 25.01.2007. Adnan Masood, was issued the nomination letter Ex. PW6/C, by coaccused Gurdial Singh. In CC no. 09/10, the candidate was accused CC No.08/10 69 of 85 70 Pawar Sandeep Trilok Chand. In CC No. 11/10, the candidate was accused Sachidanand Dwivedi, who was nominated to Ist Year MBBS Course in Magadh Medical College, Gaya, Bihar, vide nomination letter Ex. PW6/A, under signature of co accused Gurdial Singh, for the Academic Year 199091. There are 6 connected matters arising out of RC No. 2 (S)/96, and as per the case of the prosecution, accused Rasheed Masood, was interested in 3 candidates namely Sachidanand, Adnan Masood and Pawar Sandeep Trilok Chand. Adnan Masood, was a nephew of accused Rasheed Masood. It was claimed on behalf of accused Rasheed Masood, that he was not having cordial relations with family of accused Adnan Masood. However, the documents goes to prove to the contrary. In CC No. 09/10, nomination letter Ex. PW6/E, in favour of accused Pawar Sandeep Trilok Chand, bears the photograph of the candidate and same has been attested by Sh. S.C. Sharma, the Additional Private Secretary, Minister of State, Health and Family Welfare, Government of India. The attested copies of certain documents belonging to Pawar Sandeep Trilok Chand, were also seized by CBI vide Memo Ex. PW25/P on CC No.08/10 70 of 85 71 22.01.1997, and same are also attested by Sh. S.C. Sharma, the Additional Private Secretary, Minister for Health and Family Welfare, Government of India. The documents are attested on 31.07.1990, the date on which the letter Ex.PW15/C was issued by Ministry of Health and Family Welfare, Govt. of India, allocating medical seats to Govt. of Tripura. Similarly, the nomination letter Ex. PW6/C, in favour of coaccused Adnan Masood, in the present case, also bears his photograph affixed thereon. Said photograph is attested by Sh. Ram Kumar Vashisth, Assistant Personal Secretary to the Ministry of Health and Family Welfare, Government of India. Nomination letter is dated 06.08.1990 issued by accused Gurdial Singh, in favour of accused Adnan Masood. Also certain documents seized from the office of Resident Commissioner, Government of Tripura, at New Delhi by CBI on 02.01.1997 vide Ex. PW25/P, being the attested copies of the documents belonging to Adnan Masood, were also found to have been attested by Sh. Ram Kumar Vashisth, Assistant Personal Secretary to the Health and Family Welfare, State Minister, Government of India. Further, CC No.08/10 71 of 85 72 nomination letter Ex. PW6/A, issued by accused no.1, Gurdial Singh, in favour of accused Sachidanand ( In CC No. 11/10) also bears his photograph affixed thereon and the said photograph has been attested by Sh. P.C. Chawla, Private Secretary to the President of AIIMS, Ministry of Health and Family Welfare, New Delhi, and it is the Union Health Minister, who is the President of AIIMS, Exofficio, accused Rasheed Masood, being the Minister for State having independent charge of Ministry of Health and Family Welfare, at the relevant time. All these have to be seen in the light of the deposition of PW15 C.L. Bhatia, who had proved that vide letter dated 22.08.1990, one seat was allotted to Government of Tripura from the Central Pool in Magadh Medical College, Gaya, Bihar, against the seat the accused Sachidanand( accused in CC No. 11/10) was nominated and the witness had made an endorsement on the margin of unsigned copy of the letter "Original copy, 3 endorsements and o/c ( office copy) given to Sh. Laxman, Peon to DSM ( Dy. Secretary, (M) for handing it to OSD to HFM ( Hon'ble Health Minister), o/c awaited". These facts need to be CC No.08/10 72 of 85 73 evaluated in the light of provisions of Section 10 of the Indian Evidence Act which reads as under: " S.10. Things said or done by conspirator in reference to common design - Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by anyone of such persons in reference to their common intention, after the time when such intention was first entertained by anyone of them, is a relevant fact as against each of the persons believed to so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it."

84. Coaccused Adnan Masood, apart from being the nephew of accused Rasheed Masood, had also taken advantage of the nomination letter Ex.PW6/C issued in his favour by coaccused Gurdial Singh, acting as Resident Commissioner, Govt. of Tripura, New Delhi, as a nominee of State of Tripura. It is also to be kept in mind that vide letter dated 03.05.1990 Ex.PW15/B, 16 MBBS and 2 BDS seats were allocated to the State of Tripura and the Patna medical college, Patna, Bihar seat was not included in the MBBS seats CC No.08/10 73 of 85 74 allocated to the State of Tripura vide letter dated 03.05.1990 Ex.PW15/B. In the endorsement to the Desk Officer, Govt. of India, reference is to the letter dated 03.05.1990 showing clear conspiracy and concealment of letter dated 31.07.1990 Ex.PW15/C. It cannot also be lost sight of that in a connected matter, being the case of CBI Vs Gurdial Singh, CC No. 11//10, wherein accused Sachidanand was the candidate nominated for a MBBS seat in Magadh Medical College, Gaya, Bihar, vide nomination letter Ex.PW6/A, one seat was specifically and additionally allocated to the Govt. of Tripura, by accused Rasheed Masood taking the initiative himself and accused no.1, Gurdial Singh issuing the nomination letter in his favour on 05.09.1990. Contention was made on behalf of accused Rasheed Masood that he was not having good relations with the family of accused Adnan Masood and that Adnan Masood, who was studying in Jamia Milia Islamia Institution at that time, was residing in a hostel instead of residing with accused Rasheed Masood and had given his address for correspondence being that of his another uncle named Dr. Irshad Masood residing in Roorkee, U.P. These CC No.08/10 74 of 85 75 are nothing, but pre emptory steps being taken to avoid detection of conspiracy, accused Gurdial Singh, acting hand in glove with accused Rasheed Masood.

85. Accused Rasheed Masood, has been further charged for offence punishable under Section 13 (2) of the Prevention of Corruption Act, 1988 r/w Section 13 (1) (d) of the Prevention of Corruption Act, 1988, on the ground that he being a public servant, being Minister for State, independent charge, Ministry of Health and Family Welfare, Government of India, in the year 1990, committed criminal misconduct in obtaining a nomination letter for Adnan Masood (since declared juvenile) for admission to Patna Medical College, Patna, Bihar. It was claimed on behalf of the accused Rasheed Masood that despite the fact that Adnan Masood was a nephew of accused Rasheed Masood, the two families were not having cordial relations, and for that reason Adnan Masood, had given the address of another uncle residing in Roorkee, Uttarakhand. It was claimed on behalf of the accused Adnan Masood, that he was not having any role to play in allocation of MBBS seat to coaccused Adnan CC No.08/10 75 of 85 76 Masood. However, perusal of nomination letter Ex. PW6/C, shows that the photograph affixed on the nomination letter is attested by Sh. Ram Kumar Vashisth, Assistant Personal Secretary to the State Minister for Health and Family Welfare, Government of India, the Minister being accused Rasheed Masood. Though the witness Sh. Ram Kumar Vashisth, has not been examined in the case on behalf of the prosecution, but nomination letter Ex. PW6/C and photograph attested thereon, is not disputed on behalf of accused no.1, Gurdial Singh. Claim of accused Rasheed Masood, of not having cordial relations with family of accused Adnan Masood, is nothing but a smoke screen created to avoid detection of the conspiracy and the role played by accused Rasheed Masood, in nomination of accused Adnan Masood, for an MBBS seat at Patna Medical College, Patna, Bihar through accused Gurdial Singh, and it is also clear that in the copy sent to Desk Officer, Government of India, reference is to a letter dated 03.05.1990, whereas no MBBS seat at Patna Medical College, Patna, Bihar, was allocated to State of Tripura by Government of India, vide letter dated 03.05.1990.

CC No.08/10                                                         76 of 85
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86. Section 13 (1) (d) of the Prevention of corruption Act reads as follows:

" (d) if he,

(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or"

87. Thus, by resorting to corrupt means, accused Rasheed Masood, being a public servant at the relevant time obtained for coaccused Adnan Masood, valuable thing in the form of nomination letter Ex. PW6/C, for admission in Ist year MBBS Course at Patna Medical College, Patna, Bihar by abusing his position as a public servant. Thus, ingredients of offence punishable under Section 13 (2) of Prevention of Corruption Act r/w Section 13 (1) (d) of Prevention of CC No.08/10 77 of 85 78 Corruption Act, 1988, are made out against accused Rasheed Masood.

88. In view of above discussions, it is held that prosecution has been able to prove its case against accused no. 1, Gurdial Singh for the charge for offence punishable U/S 120B IPC r/w Section 420, 468 IPC and Section 13(2) r/w Section 13(1)(d) of Prevention of Corruption Act, 1988. Prosecution has been further able to prove its case for the charge for the offence punishable U/S 468 IPC and for the offence punishable U/S 13(2) r/w Section 13(1)(d) of Prevention of Corruption Act, 1988, beyond reasonable doubt. But prosecution has failed to prove its case against Accused no.1, Gurdial Singh for the offence punishable under Section U/S 420 IPC as well as U/S 467 and 471 IPC.

89. Prosecution has also been able to prove its case against accused no.3, Rasheed Masood for the charge for offence punishable U/S 120B IPC r/w Sections 420, 468 IPC and Section 13(2) r/w Section 13(1)(d) of Prevention of Corruption Act, 1988 and also for the charge for offence punishable U/S 13(2) r/w Section 13(1)(d) of Prevention of CC No.08/10 78 of 85 79 Corruption Act, 1988.

90. Accordingly, accused no.1, Gurdial Singh, is held guilty and convicted for the offence punishable U/S 120B IPC r/w Sections 420, 468 IPC and Section 13(2) r/w Section 13(1)(d) of Prevention of Corruption Act, 1988. Further, he is held guilty and convicted for the offence punishable U/S 468 IPC and also held guilty and convicted for the offence punishable U/S 13(2) r/w Section 13(1)(d) of Prevention of Corruption Act, 1988. However, he is acquitted of the charge U/S 420 IPC as well as U/S 467 and 471 IPC.

91. Accused no.3, Rasheed Masood is held guilty and convicted for the offence punishable U/S 120B r/w Section 420, 468 IPC and Section 13(2) r/w Section 13(1)(d) of Prevention of Corruption Act, 1988. Further, accused no.3, Rasheed Masood is held guilty and convicted for the offence punishable U/S 13(2) r/w Section 13(1)(d) of Prevention of Corruption Act, 1988.

Announced in open court                       (J P S MALIK) 
On 19.09. 2013                                       SPECIAL JUDGE
                                             CBI03 (P C ACT)/ DELHI

CC No.08/10                                                              79 of 85
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IN THE COURT OF SH. J.P.S MALIK :SPECIAL JUDGE CBI03 (PC ACT): TIS HAZARI: DELHI Corruption Case No. 08/10 RC No. RC2(S)/96/ CBI/SCBI/ND CBI Vs 1. Gurdial Singh s/o Sh. Gopal Singh Then Resident Commissioner Govt. of Tripura, Tripura Bhawan, New Delhi Now IG CID Crime and Railways State of Gujrat, 89, New Mental Compound Meghani Nagar, Ahmedabad R/o Bunglor No.33, Shahi Bagh, Ahemdabad, Gujrat.

2. Rasheed Masood s/o Late Sh. Kaji Masood the Then Minister of State or Health & Family Welfare, Govt. of India, r/o 439, Mandakini Enclave, Alkananda, New Delhi.

ORDER ON SENTENCE:

1. Both the convicts, Gurdial Singh and Rasheed Masood, were heard on point of sentence.

2. Convict Gurdial Singh, has been held guilty for offence punishable under Section 120B IPC r/w Sections 420, 468 CC No.08/10 80 of 85 81 IPC and Section 13 (2) r/w Section 13 (1) (d) of Prevention of Corruption Act, as well as for substantive offences punishable under Section 468 IPC and Section 13 (2) r/w Section 13 (1) (d) of Prevention of Corruption Act.

3. Convict Rasheed Masood, has been held guilty for offence punishable under Section 120B IPC r/w Sections 420, 468 IPC and Section 13 (2) r/w Section 13 (1) (d) of Prevention of Corruption Act, as well as for substantive offences punishable under Section 13 (2) r/w Section 13 (1)

(d) of Prevention of Corruption Act.

4. On behalf of convict Gurdial Singh, it is submitted by Ld. Counsel appearing for him that he is a retired IPS Officer, had served the country honestly and at present is aged 69 years having various ailments. It is also submitted that convict Gurdial Singh was earlier in Indian Army having taken part in 1971 War. It is requested that a lenient view be taken.

5. On behalf of convict Rasheed Masood, it is submitted by Ld. Defence Counsel that convict Rasheed Massod is aged about 67 years, having a medical history suffering from various ailments including serious coronary and heart CC No.08/10 81 of 85 82 problems. Medical record has been placed on record. It is argued that it is a fit case of convict being enlarged on probation and reliance in this regard has been placed on various decisions by Hon'ble Supreme Court as well as different Hon'ble High Courts, notably being N.M. Parthasarathy Vs. The State by S.P.E. Crimes II1992 (1) 528=1992 Cri. L. J 1284, Joginder Singh Vs. The State of Punjab, 1980 Cr. L.J. 1218 and State of Karnataka Vs. Muddappa 1999 SCC ( Crl.) 1046

6. However, in view of recent judgment of Hon'ble Supreme Court in case titled as Shyam Lal Verma Vs. Central Bureau of Investigation, Hon'ble Supreme Court has held that granting relief under the Probation of Offenders Act, it is not permissible since Section 7 as well as Section 13 of the Prevention of Corruption Act provides for a minimum sentence of 6 months and one year respectively. Hon'ble Supreme Court has also referred to in a judgment and earlier decision of Hon'ble Supreme Court being 2004(4) SCC 590 State through S.P New Delhi vs. Ratan Lal Arora. So, the relief under the Probation of Offenders Act or that under CC No.08/10 82 of 85 83 Section 360 IPC is not available to the convict Rasheed Masood.

7. On behalf of prosecution, submissions were made by Sh. V. N. Ojha, Spl. PP for CBI as well as Sh. Brajesh Shukl, Sr. PP for CBI, and they argued for a severe punishment, consecutive in nature in view of the fact that deserving students of Far East have been denied their due by the person who were entrusted to work for their betterment.

8. In view of the circumstances of the case where the deserving students of State of Tripura were fraudulently denied of their due entitlements in Medical/Dental College pursuant to a conspiracy, taking a lenient view shall be a case of misplaced sympathy with the wrongdoers.

9. Accordingly, convict Gurdial Singh is sentenced to undergo RI for 4 years and a fine of Rs.10,000/ for offence punishable under Section 120B IPC r/w Section 420,468 IPC and Section 13 (2) r/w Section 13 (1) (d) of Prevention of Corruption Act.

Further convict Gurdial Singh is sentenced to undergo RI for 4 years and a fine of Rs.10,000/ for offence punishable CC No.08/10 83 of 85 84 under Section 468 IPC.

Further convict Gurdial Singh is sentenced to undergo RI for 4 years and a fine of Rs.10,000/ for offence punishable under Section 13 (2) r/w Section 13 (1) (d) of Prevention of Corruption Act.

Substantive sentence awarded under different Sections of different Acts shall run concurrently. This is one of the 6 connected cases being CC No. 6/10, 7/10, 8/10, 9/10, 10/10 and 11/10 arising out of same RC no.RC2(S)/96/ CBI/SCB I/ND, and so it is directed that the substantive sentence awarded in all complaint cases shall run concurrently.

10. Accordingly, convict Rasheed Masood, is sentenced to undergo RI for 4 years and a fine of Rs.10,000/ for offence punishable under Section 120B IPC r/w Section 420,468 IPC and Section 13 (2) r/w Section 13 (1) (d) of Prevention of Corruption Act.

Further convict Rasheed Masood, is sentenced to undergo RI for 4 years and a fine of Rs.10,000/ for offence punishable under Section 13 (2) r/w Section 13 (1) (d) of Prevention of Corruption Act.

CC No.08/10                                                               84 of 85
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Substantive sentence awarded under different Sections of different Acts shall run concurrently. This is one of the 6 connected cases being CC No. 6/10, 7/10, 8/10, 9/10, 10/10 and 11/10 arising out of same RC no.RC2(S)/96/ CBI/SCB I/ND, and convict Rasheed Masood is convicted in three cases and so, it is directed that the substantive sentence awarded in three complaint cases shall run concurrently.

Announced in open court                       (J P S MALIK) 
On 01.10.2013                                       SPECIAL JUDGE
                                          CBI03 (P C ACT)/ DELHI           




CC No.08/10                                                         85 of 85

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Delhi District Court

Cbi vs 1. Gurdial Singh on 1 October, 2013