Gujarat High Court
Girdhari Lal Jeevandas Bhagat vs State Of Gujarat & on 27 April, 2017
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
R/CR.RA/744/2016 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL REVISION APPLICATION NO. 744 of 2016
WITH
CRIMINAL REVISION APPLICATION NO. 746 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE Z.K.SAIYED
================================================================
1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
================================================================
GIRDHARI LAL JEEVANDAS BHAGAT....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
===============================================================
Appearance:
MR PM THAKKAR FOR MR HARDIK A DAVE, ADVOCATE for the Applicant(s)
No. 1
MR RC KODEKAR, ADVOCATE for the Respondent(s) No. 2
MR NJ SHAH APP for the Respondent(s) No. 1
================================================================
CORAM: HONOURABLE MR.JUSTICE Z.K.SAIYED
Date : 27/04/2017
Page 1 of 32
HC-NIC Page 1 of 32 Created On Fri Apr 28 00:23:28 IST 2017
R/CR.RA/744/2016 CAV JUDGMENT
CAV JUDGMENT
1. These two revision applications are preferred by applicants Girdharilal Jivandas Bhagatbhai and Mohammed Firoz Hussain S/o Mohammed Jafar Hussain, under Sections 397 and 401 of the Code of Criminal Procedure, 1973, challenging the order passed by the learned Special Judge (CBI), Court No.9, Ahmedabad in CBI Case No.28/2011 passed below Exh.4 & 57 whereby their applications for discharge preferred under Section 227 of the Code of Criminal Procedure, 1973 came to be rejected by order dated 21.06.2016.
2. Both the revision applications are having similar facts and the applicants are accused of Special Case No.28/2011. Therefore, both these criminal revision applications are heard and decided together by way of a common judgement.
3. The brief facts, leading to the case are summarized as under:
(i) The CBI had, on the basis of source information, registered a case on 10.06.2009 against Mr. G.L. Bhagat (Ex-Chairman, KPT) Mr. A. Janardhana Rao, (Ex-Chairman, KPT) Mr. B.K. Macwana, Chief Engineer (I/c) KPT, Mr. K.C. Vyas, Estate Manager, KPT, Mr. Mohammed Firoz Hussain, the then Page 2 of 32 HC-NIC Page 2 of 32 Created On Fri Apr 28 00:23:28 IST 2017 R/CR.RA/744/2016 CAV JUDGMENT Estate Manager, KPT, Mr. Sukhraj Singhvi, Director of M/s. Friends Oil and Chemicals Terminal (FOCT for short), Kandla and other officers of Kandla Port Trust under Sections 120B, 420 of Indian Penal Code and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988, having allegation that there was undue favour to FOCT in the matter of allotment of land of 25000 sq.mtrs. of Kandla and subsequently in the matter of restoration of the land in the year 1994. No bids were called and no tenders were issued for allotment of the said land.
(ii) The investigation was carried on, on this aspect and the CBI filed the charge-sheet against four accused persons only, namely, Mr. G.L. Bhagat, Mr. Mohammed Firoz Hussain, Mr. Sukhraj Singhvi and Mr. B.K. Mansukhani. So far as Mr. A. Janardhana Rao, the then Chairman of KPT, Mr. K.C. Vyas, the then Estate Manager of KPT and Mr. Bhupendra Mackwana, the then Chief Engineer, KPT are concerned, they were not charge-sheeted in the charge-sheet dated 30.11.2011 filed before the Special Court.
(iii) On 29.08.1987, an application was given by Mr. B.K. Mansukhani and requested the Chairman of Kandla PortTrust for allotment of 10 Acres of land Page 3 of 32 HC-NIC Page 3 of 32 Created On Fri Apr 28 00:23:28 IST 2017 R/CR.RA/744/2016 CAV JUDGMENT for setting up Edible Oil Refinery at Kandla being partner of FOCT at Gandhidham. It has been mentioned in the said application dated 29.08.1987 that State Trading Corporation (STC for short) is at present importing the refined oil from foreign countries, which is being packed in small tins and distributed directly to the consumers from Kandla being refined Oil. STC is also importing small quantity of crude oil, which is directly dispatched by tankers. There is no refining of the oil at Kandla except small quantity of food oil. Being a company at Rajkot for refining purpose for distribution in Gujarat, therefore, STC is importing refined oil directly from foreign countries. Under such circumstances, for establishing the Refinery Oil Tank and Go-down, the land was sought for.
(iv) On 20.01.1987 there was a meeting of Plot Allotment Committee. Ultimately, the Board passed a Resolution No.73 dated 31.02.1987, allotting land admeasuring 25000 sq.mtrs. As per the case of the prosecution, there are further allegations that the then Chairman of Kandla Port Trust Mr. S.K. Somaiyajulu had put the matter before the members of Plot Allotment Committee, Kandla Port Trust, Mr. B.K. Srivastava, Mr. A.K. Shah and Mr. S.S. Shah. On recommendation of the committee, the land was Page 4 of 32 HC-NIC Page 4 of 32 Created On Fri Apr 28 00:23:28 IST 2017 R/CR.RA/744/2016 CAV JUDGMENT allotted to M/s. Friends Oil and Chemicals Terminal for setting up Edible Oil Refinery at Kandla on the standard terms and conditions for 30 years lease on payment of prescribed ground rent of Rs.7.70/- per sq.mtr., subject to conditions. The allegations are to an effect that such allotment of land at the initial stage was on nomination basis and by-passed the previous procedure and no bids/tenders have been called for the allotment of the said land.
(v) It is relevant to note that on 27.03.1989, FOCT placed plan for Edible Oil Refinery, Tank and Storage Go-down before the Kandla Port Trust for its approval. However, later on, by communication dated 04.01.1990 the aforesaid FOCT had informed the Kandla Port Trust that since State Trading Corporation stopped import of oil and National Dairy Development Board (NDDB) started making trade in their tanks at Kandla, the original object was not possible, hence requested to grant for permission of using the said portion of the land for storage of Chemicals and Bonded Warehouse.
(vi) The request of the FOCT was not accepted by the Kandla Port Trust on 24.05.1990. On 27.04.1991 the allotment of plot was cancelled asking the FOCT to vacate the plot on or before 02.12.1991.
Page 5 of 32HC-NIC Page 5 of 32 Created On Fri Apr 28 00:23:28 IST 2017 R/CR.RA/744/2016 CAV JUDGMENT Against the decision of Kandla Port Trust, FOCT had approached even the Hon'ble High Court of Gujarat by way of preferring a petition, but, the said petition was found to be premature as the remedy was available under the provisions of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971. In view of this fact, the proceedings for eviction under the Public Premises Act were going on. In view of the above factual background, on 01.03.1993, one Bhupendra Macwana and Mr. B.K. Mansukhani requested to regularize the allotment of plot. The charge-sheet shows that the committee constituted by the Chairman for considering the aspect as to whether the land can be regularized in favour of FOCT. A resolution No.32 dated 29.06.1994 was passed empowering the Board to cancel the plot. On 25.01.1994, FOCT had reiterated that the party had spent lakhs of rupees for the plot and that therefore, it will be adversely affected if the plot is not regularized. Ultimately, on 30.12.1994, an order was passed by the Chairman to restore the plot qua the present applicant and thereafter the lease deed was executed.
(vii) With the above said factual background, the charge-sheet and entire papers show that due to not following the due procedure, there is a net Page 6 of 32 HC-NIC Page 6 of 32 Created On Fri Apr 28 00:23:28 IST 2017 R/CR.RA/744/2016 CAV JUDGMENT loss of Rs.3,42,500/- to Kandla Port Trust and corresponding gain to private party, hence charge u/s 13(2) read with Section 13(1)(d) of Prevention of Corruption Act read with Section 120B and 420 of the Indian Penal Code has been filed.
(viii) The advocates appearing for the applicants have made elaborate submissions. Learned advocate for applicant No.1 Mr. G.R. Bhagat had stated that even if the allegations of the charge-sheet are believed as they are, no offence is made out, much less no role is assigned to the present applicants culminating into criminality. Learned advocate for applicant No.1 has made the following submission.
(a) The proposal for allotment of plot was initiated in the year 1987 by application dated 28.09.1987 and ultimately plot was allotted on 31.12.1987 by Board Resolution No.73, while the present applicant is posted as Chairman of Kandla Port Trust from 1991 to 1996.
Applicant No.1 had nothing to do with the allotment of plot or the procedure followed thereof.
(b) The application was made for permitting the change of use of the plot from Oil Page 7 of 32 HC-NIC Page 7 of 32 Created On Fri Apr 28 00:23:28 IST 2017 R/CR.RA/744/2016 CAV JUDGMENT Refinery, Storage Tank and Go-down to the use of plot for the purpose of store and go- down. The reasons mentioned about the stoppage of import of oil by S.K. Ltd., as well as fact of National Dairy Development Board (NDDB) started directly trading by hiring their tanks at Kandla, was not found incorrect by any one.
(c)The Board Resolution No.71 dated 29.08.1993 passed u/s 21 of the Major Port Trusts Act, authorizing the Chairman to regularize the cancelled plots, was not in dispute. Allegedly such resolution was struck down by the Ministry of Shipping and road Transport and Highway Department in the year 2008 cannot be a ground as, at the relevant time when the decision of regularizing the plot was taken, there was legal authority vested in the Chairman.
(d) Even otherwise, the prosecution has preferred to omit the fact and in 2010 again the Shipping Ministry had found the decision of 2008 incorrect and resolution No.71 of 1993 is found to be legal one. Such vital fact is intentionally ignored by the authorities.
(e) The original purpose of establishment of Edible Oil Refinery, Storage Tank and Go-down Page 8 of 32 HC-NIC Page 8 of 32 Created On Fri Apr 28 00:23:28 IST 2017 R/CR.RA/744/2016 CAV JUDGMENT while regularizing the plot permission was granted for Storage Tank and Go-down and therefore, it cannot even be said as change in purpose.
(f) The record shows that on 27.03.1989 even the plans were submitted by FOCT for establishment of Edible Oil Refinery, Storage Tank and Go-down. Therefore, the initial intention of the party was to establish Oil Refinery, but, same was changed due to the change of circumstance.
(g) There was no Jantri price available for the Kandla Port Trust area as facts are obtained from the Stamp Duty Collector, Rajkot under the Right to Information Act. The loss averred by the authority to an extent of Rs.3,42,500/- is merely on assumption. In fact, penalty of Rs.5,50,000/- imposed on FOCT based on current ground rent Rss.11/- per sq.mtr. is calculated as per the decision of the Estate Management Committee. Merely because, certain previous figures shows that average rate amount of Rs.17.85 per sq.mtr. was received in the year 1994, cannot be made basis as this was a case of restoration of plot wherein party had already paid the original price and it was a question of Page 9 of 32 HC-NIC Page 9 of 32 Created On Fri Apr 28 00:23:28 IST 2017 R/CR.RA/744/2016 CAV JUDGMENT restoration of plot only. Even otherwise, a trivial figure is shown just to initiate a criminal case against the first accused on assumption and surmises. For reaching to the conclusion of price, no valid material has been placed.
4. Learned advocate for applicant No.2 had made the following submissions.
(i) The applicant was not part of any decision of allotment of plot initially made to the FOCT.
(ii) The applicant being Estate Officer, had given his report to Chairman on 25.11.1994, which was based on Estate Management Committee constituted by Chairman wherein Mohanlal K. Aswani, Champaklal Parekh, C.A. Bhatt, Secretary, KPT and the present applicant Firoz Hussain were members. The report was based on personal inspection on site and the unanimous decision of the Committee.
(iii) By any of the act of applicant No.2, no loss has incurred to KPT. The entire basis of alleged loss is only on surmises and presumptions.
(iv) The charge-sheet is wrongly filed on an aspect that as the report of the applicant was that there was no fresh allotment for deciding the corresponding price in the year 1994. This Page 10 of 32 HC-NIC Page 10 of 32 Created On Fri Apr 28 00:23:28 IST 2017 R/CR.RA/744/2016 CAV JUDGMENT aspect was correct and the CBI has wrongly averred that in 1986 KPT had called upon tender. The allotment of 1986 cannot be said to be fresh allotment insofar as when proposal was under
consideration in the year 1994.
5. The learned advocates for the applicants have jointly made further submissions that the evidence produced gives rise to suspicion only as distinguished from grave suspicion. The Court is within its right to decide the issue. In the present case, even if the entire charge-sheet is seen as it is, there are allegations about improper method adopted for allotment of plot in the year 1987. The present applicants are not at all concerned with such allotment as applicant No.1 was not been part of KPT while applicant No.1 had no role at all in the allotment of plot. It is further submitted that even the party had submitted its plan for approval before KPT to construct the Edible Oil Refinery, Storage Tank and Go-down on 27.03.1989. This aspect shows that there was initial intention of the party to start the refinery. Even the case of the prosecution is not to an effect that there was no change of circumstance wherein STC stopped importing crude oil as well as NDDB started storing oil in its own tank and distributing it and that way there was change of circumstance.
6. Even the present applicants are concerned, the issue is Page 11 of 32 HC-NIC Page 11 of 32 Created On Fri Apr 28 00:23:28 IST 2017 R/CR.RA/744/2016 CAV JUDGMENT about permitting restoration of plot. Restoration of plot was done wherein the original purpose of establishing the Edible Oil Refinery, Storage Tank, Go- down are concerned, the condition for permitting for storage tank and go-down was there. Later on, therefore, it can be said to be port related activity only. The entire case, in view of the prosecution also, is based on surmises and presumptions and not based on any material evidence showing loss to KPT to an extent of Rs.3,42,500/-.
7. It is also relevant to note that till date KPT has not cancelled the allotment of plot of FOCT. Even the KPT has not started any proceedings for recovery of further amount. This aspect shows that there was no irregularity or illegality in restoring the plot. It is relevant to note that the proceeding under Public Premises (Eviction of Unauthorized Occupants) Act, 1971, was continued during the process of restoration of plot. Hence, plot could not be made available to KPT for number of years in court proceedings. Under such circumstances, in the best interest of KPT, such decision was taken. It is also not in dispute that the Board Resolution No.71 dated 28.01.1993 passed u/s 21 of the Major Port Trusts Act, empower at relevant time to consider the case of restoration of plots. The cancellation of such resolution in the year 2008 by Shipping Ministry is irrelevant as, at the relevant time there was power vested with the Chairman and Page 12 of 32 HC-NIC Page 12 of 32 Created On Fri Apr 28 00:23:28 IST 2017 R/CR.RA/744/2016 CAV JUDGMENT according to the authority of Chairman such a decision was taken.
8. The learned advocates for the applicants relied on the judgement in the case of Yogesh Vs. State of Maharashtra, reported in (2008) 10 SCC, 394 more particularly paragraph No.16 thereof, which is reproduced as under:
"16. It is trite that the words "not sufficient ground for proceeding against the accused" appearing in the section postulate exercise of judicial mind on the part of the Judge to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. However, in assessing this fact, the Judge has the power to sift and weigh the material for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine a prima facie case depends upon the facts of each case and in this regard it is neither feasible nor desirable to lay down a rule of universal application. By and large, however if two views are equally possible and the Judge is satisfied that the evidence produced before him gives rise to suspicion only as distinguished from grave suspicion, he will be fully within his right to discharge the accused. At this stage, he is not to see as to whether the trial will end in conviction or not. The broad test to be applied is whether the materials on record, if Page 13 of 32 HC-NIC Page 13 of 32 Created On Fri Apr 28 00:23:28 IST 2017 R/CR.RA/744/2016 CAV JUDGMENT unrebutted, make a conviction reasonably possible."
9. The applicants also relied upon below mentioned decisions of the Hon'ble Supreme Court dealing with somewhat identical situation:-
(1) (2013)1 SCC 205 = AIR 2013 SC 48 between C.K.Jaffer Sharief (the then Minister for Railways) Vs. State (Through CBI) wherein the Hon'ble Supreme Court has categorically held that if in the process, the rules or norms applicable were violated or the decision taken shows an extravagant display of redundance, it is the conduct and action of the appellant which may have been improper or contrary to departmental norms. But to say that the same was actuated by a dishonest intention to obtain an undue pecuniary advantage will not be correct.
That dishonest intention is the gist of the offence under section 13 (1) (d) is implicit in the words used i.e. corrupt or illegal means and abuse of position as a public servant. A similar view has also been expressed by the Hon'ble Supreme Court in M.Narayanan Nambiar Vs. State of Kerala (AIR 1963 SC 1116 :
(1963) 2 Cri. LJ 186 : 1963 Supp (2) SCR 724 while considering the provisions of Section 5 of the 1947 Act. If the totality of the materials on record indicates the above position, there is no reason to allow the prosecution to continue against the petitioner. Such continuance would be an abuse of process of court and Page 14 of 32 HC-NIC Page 14 of 32 Created On Fri Apr 28 00:23:28 IST 2017 R/CR.RA/744/2016 CAV JUDGMENT therefore it will be the plain duty of the Court to interdict the same.
(2) (2003)9 SCC 700 = AIR 2004 SC 1012 between R.Balakrishna Pillai, (the then Minister in the Kerala Government) Vs. State of Kerala, wherein the Hon'ble Supreme Court has held that in comparison to mens rea, actus reus i.e. mental element is considerable narrower and more demanding than that required for the principal offender. The distinction between mens rea and actus reus is indicated in Blackstone's Criminal Practice.
Therefore, it will have to be examined as to whether there has been 'obtainment' of a valuable thing or pecuniary advantage by the appellants for Company. The primary requisite of offence under section 5 (1)(d) of 'obtaining' any valuable thing or pecuniary advantage for any other person, in absence of any effort, initiative or request on the part of the appellants shatters the charge. To consider yet another aspect, the general principle of criminal jurisprudence is that element of mens rea and intention must accompany the culpable act conduct of the accused.
10. In view of the aforesaid facts and law, the charge framed by the court below under the Prevention of Corruption Act deserves to be quashed and set aside. Charge No.2 - Offence punishable u/s.420 and 120 B Page 15 of 32 HC-NIC Page 15 of 32 Created On Fri Apr 28 00:23:28 IST 2017 R/CR.RA/744/2016 CAV JUDGMENT of the IPC. There is no material whatsoever in entire charge sheet to establish offences alleged against the petitioners.
11. The allegations leveled against the applicant does not constitute offence punishable u/s.420 of IPC by any stretch of imagination.
12. For the offences punishable u/s.120 B of the IPC is concern, meeting of minds of 2 or more persons for doing or causing to be done an illegal act by illegal menas is sine qua non of criminal conspiracy.
13. For the offences punishable under IPC leveled against the government servants, the sanction u/s.197 of the IPC to prosecute is necessary even if the public servant sought to be prosecuted has retired.
14. In view of the above, the learned advocates for the applicants have made their submissions requesting to allow these revision applications by discharging the applicants from the criminal case registered against them by CBI stating that even if the case is believed as it is, no offence is made out.
15. I have heard the learned advocate for the CBI Mr. R.C. Kodekar. Mr. Kodekar has made elaborate submissions, reiterating what has been stated in the charge-sheet and tried to convince this Court that the Page 16 of 32 HC-NIC Page 16 of 32 Created On Fri Apr 28 00:23:28 IST 2017 R/CR.RA/744/2016 CAV JUDGMENT offence is made out of restoring the plot by not correctly deciding the price of the plot and by not charging the penalty amount appropriately by the authority. At the stage of discharge, the trial court is not supposed to weigh the evidence, but, has to only see that whether there is sufficient material to frame charge against the accused persons or not. The trial court has given elaborate reasons for not granting the application of the applicants, coming to the conclusion that there is material for framing charge against the accusd persons.
16. Mr. Kodekar has further made submissions that this Court is considering this matter u/s 397 and 401 of Cr.P.C., wherein the scope of considering the matter is very limited, by verifying as to whether the trial court has exercised its jurisdiction properly or not and that the evidence is not be evaluated again. Mr. Kodekar has relied on the case reported in 2005 SCC (Crimes), 415 in the case of State of Orissa Vs. Debendranath Padhi relying on the principle that no new material or document at this stage can be considered and only the charge-sheet of the prosecution can be considered to verify whether there is sufficient material or not to frame the charge. Mr. Kodekar has further relied on the case reported in (2009) 6 SCC, 364 in the case of Rumidhar to emphasize a principle that strong suspicion of complicity enough to refuse application for discharge u/s 239, 227, 245 and 482 of Cr.P.C.
Page 17 of 32HC-NIC Page 17 of 32 Created On Fri Apr 28 00:23:28 IST 2017 R/CR.RA/744/2016 CAV JUDGMENT
17. Lastly, Mr. Kodekar has relied on the latest decision of the Hon'ble Supreme Court in the case of State of Rajasthan Vs. Fateh KaranMehdu, reported in (2017) 3 SCC, 198 wherein the order of the High Court of quashing charge was reversed by the Hon'ble Supreme Court finding that there was material to frame charge against the accused persons.
18. The following important provisions of law of Major Ports Act, 1953 deserve to be considered while deciding the matter.
Section-3 of the Major Ports Act Sec.3 Constitution of Board of Trustees (1) With effect from such date as may be specified by notification in the Official Gazette, the Central Government shall cause to be constituted in respect of any major port a Board of Trustees to be called the Board of Trustees of that port, which shall consist of the following Trustees, namely: -
(a) A Chairman to be appointed by the Central Government;
(b) One Deputy Chairman or more, as the Central Government may deem fit to appoint;Page 18 of 32
HC-NIC Page 18 of 32 Created On Fri Apr 28 00:23:28 IST 2017 R/CR.RA/744/2016 CAV JUDGMENT
(c)Xxx (2) Xx (3) Xxx (4) Xxx (5) Xxx (6) Xxx Section: 5 Board to be Body Corporate Every Board constituted under this Act shall be a body corporate having perpetual succession and a common seal with power, subject to the provisions of this Act, to acquire, hold or dispose of property and may by the name by which it is constituted, sue or be sued.
Section 16: Meetings of Board (1)Xxx (2)Xxxx (3)All questions at a meeting of the Board shall be decided by a majority of the votes of the Trustees present and voting and, in the case of an equality of votes, the person presiding shall have a second or Page 19 of 32 HC-NIC Page 19 of 32 Created On Fri Apr 28 00:23:28 IST 2017 R/CR.RA/744/2016 CAV JUDGMENT casting vote.
(4)Xxxx Section 29: Transfer of assets and liabilities of Central Government, etc., to Board (1)As from the appointed day in relation to any port
(a) All property, assets and funds [and all rights to levy rates] vested in the Central Government or, as the case may be, any other authority for the purposes of the port immediately before such day, shall vest in the Board;
(b) Xxx
(c)Xxx
(d) Xxx
(e) Xxx
(f) xxx
(2)xxx
(3)xxx
Section 111: Power of Central Government to issue directions to Board (1)Without prejudice to the foregoing provisions of this Chapter, the Authority and every Board shall, in the discharge of its functions under this Act be bound by such directions on questions of policy as the Central Page 20 of 32 HC-NIC Page 20 of 32 Created On Fri Apr 28 00:23:28 IST 2017 R/CR.RA/744/2016 CAV JUDGMENT government may give in writing from time to time.
PROVIDED that the Authority or the Board, as the case may be, shall be given opportunity to express its views before any direction is given under this sub-section.
(2)The decision of the Central Government whether a question is one of policy or not shall be final.
Section 121: Protection of acts done in good faith:- No suit or other legal proceeding shall lie [against the Authority, a Board or any member] or employee thereof in respect of anything which is in good faith done or intended to be done under this Act or any rule or regulation made thereunder, or for any damage sustained by any vessel in consequence of any defect in any of the moorings, hawsers or other things belonging to or under the control of the Board.
Section 52 : It is to be noted that Section 52 has been omitted by Laws Amendment Act, 1997 with effect from 09.01.1997. At the relevant time Section 52 was existing. In view of the enactment Section 52 existing as on that reads as under:
52. Prior sanction of Central Government to rates and conditions: - Every scale of rates and every statement of conditions framed by a Board Page 21 of 32 HC-NIC Page 21 of 32 Created On Fri Apr 28 00:23:28 IST 2017 R/CR.RA/744/2016 CAV JUDGMENT under the foregoing provisions of this Chapter shall be submitted to the Central Government for sanction and shall have effect when so sanctioned and published by the Board in the Official Gazette.
After amendment of the Major Ports Act, Tariff Authority for major port was constituted under Chapter VA of the Act in the year 1997 consisting of Sections 47A to 47H and Section 52 was repealed.
A conjoint reading of all these provisions shows that there is constitution of Board of Trustees wherein Board has power to dispose of property u/s 5 and Board has power to pass resolution u/s 16(3) with majority. The Board has power to dispose of its property u/s 5. It is also relevant to note that powers u/s 111 of the Central Government are only to issue directions relating to policy matter. Under such circumstances there are vesting of powers about the disposal of property available to the Board.
While exercising such powers three resolutions were passed by the Board being Resolution No.73 dated 31.12.1987, Resolution No.71 dated 28.01.1993, delegating powers to Chairman to compound, regularize, breach through penalty and resolution No.32 dated 29.06.1994 delegating power to Chairman to compound, regularize, breach through penalty. Under such circumstance, indisputably the Major Ports Act provides at the relevant time, powers for disposal Page 22 of 32 HC-NIC Page 22 of 32 Created On Fri Apr 28 00:23:28 IST 2017 R/CR.RA/744/2016 CAV JUDGMENT of the property vested to the major ports, by fixing price of land. In view of this legal fact, regularization of plot by Chairman through delegated power of Kandla Port Trust was within the ambit and power of Chairman.
From the record it seems that land FOR were approved by Ministry of Shipping before creation of Tariff Authority for Major Port and accordingly, as per the approval of Ministry of Shipping, penalty of Rs.11/- per sq.mtr. approved by the Government in the month of July, 1994 was charged for restoration in December, 1994. It is to be noted that there is nothing on record about any other price of TAMP notification. One more vital aspect which requires consideration is Section 121, which gives immunity against legal proceedings of filing of suit or legal proceedings, wherein various Board Resolutions passed by the Kandla Port Trust are implemented by the present applicant. Under such circumstances, for implementation of Board Resolution protection u/s 121 of the Major Ports Act would be available to the implementing authority. With the above referred legal provisions, the further facts of the present case deserves to be evaluated.
19. Before deciding the entire issue, I would like to rely upon certain principles settled by the Hon'ble Supreme Court.
The following decisions make the picture clear:-
Page 23 of 32HC-NIC Page 23 of 32 Created On Fri Apr 28 00:23:28 IST 2017 R/CR.RA/744/2016 CAV JUDGMENT (1) AIR 2009 SC (Supp) 1744 between State of M.P. Vs. Sheetla Sahai and Ors. wherein the Hon'ble Supreme Court has held that each one of Respondents, public servants including retirees were found to be performing his official duties - Sanction for their prosecution u/s.197 is required to be obtained.
(2) AIR 2008 Supreme Court 1992 between Anjani Kumar Vs. State of Bihar and Anr. wherein the Hon'ble Supreme Court has held that if on facts, it is prima facie found that the act or omission for which the accused was charged had reasonable connection with discharge of his duty then it must be held to be official to which applicability of section 197 cannot be disputed. Continuance of proceedings against appellant by prosecution-Would amount to abuse of process of law. The Law Commission in its 41st Report in paragraph 15.123 while dealing with Section 197, as it then stood, observed "it appears to us that protection under the section is needed as much after retirement of the public servant as before retirement.
The protection afforded by the section would be rendered illusory if it were open to a private person harbouring a grievance to wait until the public servant ceased to hold his official position, and then to lodge a complaint. The ultimate justification for the protection conferred by Section 197 is the public interest in seeing that official acts do not lead to needless or Page 24 of 32 HC-NIC Page 24 of 32 Created On Fri Apr 28 00:23:28 IST 2017 R/CR.RA/744/2016 CAV JUDGMENT vexatious prosecution. It should be left to the Government to determine from that point of view the question of the pendency of prosecuting any public servant."
(3) (2003)9 SCC 700 between R.Balakrishna Pillai Vs. State of Kerala wherein the Hon'ble Supreme Court has held that the general principle of criminal jurisprudence is that element of mens-rea and intention must accompany the culpable act or conduct of the accused. The accused must have the mental state or degree of fault at the relevant time. It may of course differ from crime to crime according to the definition thereof. The matter of degrees may also differ. That is to say, generally the mental state and the criminal act must coincident. The criminal act may be one which may be intended by the wrongdoer. It is well known that mere intention is not punishable except when it is accompanied by an act or conduct of commission or omission on the part of the accused. Situation varies in respect of different kinds of crimes as in some of them even negligence or careless act may constitute an offence or there may be cases of presumptions and putting the accused to proof to the contrary. Looking to the definition of the crime in the case in hand, namely, clause (d) of sub-section (1) of section 5 of the Act, it is necessary that the act must have been done illegally abusing his position as a public servant for obtaining benefit, pecuniary or Page 25 of 32 HC-NIC Page 25 of 32 Created On Fri Apr 28 00:23:28 IST 2017 R/CR.RA/744/2016 CAV JUDGMENT otherwise, for himself or for someone else. This is an offence which would require an intention to accompany the act. The element of mental state would be necessary to do a conscious act to get the required result of pecuniary advantages or to obtain any valuable thing, even if it is for someone else, then too element of mental state must be there at the relevant time. But the element of mens rea and intention is totally lacking in the instant case.
(4) In AIR 1977 SC 2018 between State of Bihar Vs. Rameshsingh wherein though the Supreme Court is dealing with the section 227 and 228 of the Code practically it is not against the petitioner when it is held that if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in the cross examination or rebutted by the defence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceedings with the trial. Therefore, the decision in cited case is purely based upon the facts of that case only thereby, it cannot be said that in any case there cannot be an order of discharge at all.
(5) AIR 1986 2 SCC 716 between R.C.Nayak Vs. A.R.Antulay & Another wherein the Hon'ble Supreme Court while dealing with the subject held on facts that prima facie case is made out. Therefore, Page 26 of 32 HC-NIC Page 26 of 32 Created On Fri Apr 28 00:23:28 IST 2017 R/CR.RA/744/2016 CAV JUDGMENT what is held is on facts and thereby, it is not a case which confirms that in any case accused cannot be discharged at all. The Court has also considered the ingredients of cheating and act by the public servant more particularly on administrative side, presumption under the Prevention of Corruption Act can be drawn against the accused only when there is evidence regarding acceptance of valuable thing by him.
(6) AIR 1977 SC 1489 State of Karnataka Vs. L.Muniswami & Others, wherein the Hon'ble Supreme Court has while dealing with the subject held that the Sessions Court being seized of the case has jurisdiction to frame proper charges as the facts may justify or circumstance may warrant and thereby, it was held that when there was no material on record on the basis of which the Court can reasonably come to conclusion that accused were in any manner connected with the fact to meet with an end of the justice the proceeding against the accused was quashed.
(7) In AIR 1997 2 SCC 699 between Depot Manager, Andhra Pradesh State of Road Transportation Corporation Vs. Moh.Yousuf Miya and Others wherein the Hon'ble Supreme Court has held that each case requires to be considered on its own facts and circumstances.
Page 27 of 32HC-NIC Page 27 of 32 Created On Fri Apr 28 00:23:28 IST 2017 R/CR.RA/744/2016 CAV JUDGMENT
20. I have heard both the sides and considered the facts as well as law on the subject matter. Certain facts are uncontroverted in the matter, which are enumerated hereunder.
a) Applicant No.1 who is a retired IAS Officer had joined as Chairman of KPT from the year 1991 to 30.03.1996 with a period of extension. Applicant No.1 and applicant No.2 both had no concern at all in allotment of plot of 25000 sq.mtrs., to FOCT, which has been done in the year 1987-88, as described hereinabove. Applicant No.1 was not in the service of KPT at the relevant time while applicant No.2 was not concerned with the allotment at the relevant time.
b) On 27.03.1989, M/s. Friends Oil and Chemicals
Terminal had submitted its plan for
establishment of Edible Oil Refinery, Storage Tank and Go-down to the KPT for its approval. However later on, by letter dated 24.09.1990 change of use of plot was sought for storage of chemicals and for bonded ware house due to change of circumstance as State Trading Corporation had stopped importing oil and NDDB started direct trading of oil and therefore, requirement of oil refinery did not exist. This change of circumstance is not disputed by the prosecution or it is not in dispute thereof and Page 28 of 32 HC-NIC Page 28 of 32 Created On Fri Apr 28 00:23:28 IST 2017 R/CR.RA/744/2016 CAV JUDGMENT even initial application for sanction of plant for oil refinery is also not in dispute in the case of prosecution.
c) The aspect of restoration of cancelled and/or disputed plots are concerned, KPT had passed resolution No.71 dated 28.01.1993 u/s 21 of the Major Port Trusts Act, authorizing the Chairman for considering such cases of restoration. Even there was resolution No.32 dated 26.09.1994 passed by KPT authorizing the Chairman to regularize the plots. It is the case of the prosecution that Resolution NO.71 was struck down by the Shipping Ministry vide letter dated 30.01.2008. In view of this fact, at the time of consideration of regularization of plot, which has been regularized on an application preferred by FOCT dated 01.03.1993 and regularized on 13.12.1994, the Chairman was authorized and empowered to do so.
d) Even if the contention of prosecution that vide letter dated 30.01.2008 passed by the Ministry of Shipping, resolution No.71 of 1993 was struck down, again that it was reversed by letter dated 13.07.2010 and such fact cannot be considered at the stage of discharge of accused, then also admittedly, upto 2008 Board Resolution No.71 of 1993 was in vogue and the Chairman was Page 29 of 32 HC-NIC Page 29 of 32 Created On Fri Apr 28 00:23:28 IST 2017 R/CR.RA/744/2016 CAV JUDGMENT empowered to regularize all cancelled plots.
e) If the entire prosecution case is seen as it is, there is no material indicating the exact price of the plots, which are to be regularized. The material relied upon by the prosecution of bidding process @ Rs.17.85 per sq.mtrs. received in the year 1993 was of fresh allotment and not in the case of restoration of plots, which are cancelled to the original party, wherein original party has already paid the original price of the plot at the time of allotment of plot.
f) The alleged act of permitting for laying down two pipe line of 8 mm. diameter instead of one pipe line to FOCT by applicant No.2 Mohammed Firoz Hussain also does not show any financial loss to KPT. No material thereof is placed on record.
21. In view of these undisputed facts, as per the principle laid down by the Hon'ble Supreme court in the case of C.K. Jaffer sharief (supra), even in the process of restoration of plots, the rules or norms applicable were violated or the decision taken shows an extravagant display of redundance, it is the conduct and action of the appellant which may have been improper or contrary to departmental norms. But to say that the same was actuated by a dishonest intention to obtain an undue pecuniary advantage will not be correct. That dishonest intention is the gist of Page 30 of 32 HC-NIC Page 30 of 32 Created On Fri Apr 28 00:23:28 IST 2017 R/CR.RA/744/2016 CAV JUDGMENT the offence under section 13 (1) (d).
22. In view of the above settled principles by the Hon'ble Supreme Court, if the case is critically evaluated, the KPT has not preferred to cancel the allotment of plot, nor it has initiated any proceedings for recovering the excess amount. Even the department has never preferred to initiate any departmental proceedings against the present applicants. There is no material to show that there was dishonest intention in regularizing the plot for pecuniary gain of applicants or of the other accused persons. In my view, even there is no material to show that there was offence u/s 420 and 120B of the Indian Penal Code.
23. I have gone through the bunch of charge-sheet produced before the Court. In my view, there is no material to frame charge as alleged in the charge- sheet. Under such circumstances, it is a fit case to discharge the accused persons at this stage.
In view of the above facts, even if the submissions of the learned Special Public Prosecutor for CBI that there is limited scope for considering this revision application, is accepted, in my view, the threadbare reading of the charge-sheet also does not disclose any criminality or having sufficient material to frame charge against the accused persons. In the Page 31 of 32 HC-NIC Page 31 of 32 Created On Fri Apr 28 00:23:28 IST 2017 R/CR.RA/744/2016 CAV JUDGMENT circumstance, the revision applications therefore, deserve to be allowed and same are allowed and the present applicants are hereby directed to be discharged from CBI Special Case No.28 of 2011, pending in the court of learned Special Judge, CBI, Ahmedabad. Rule is made absolute to the aforesaid extent.
(Z.K.SAIYED, J.) YNVYAS Page 32 of 32 HC-NIC Page 32 of 32 Created On Fri Apr 28 00:23:28 IST 2017