Jharkhand High Court
Tapas Kumar Lahiry @ Tapas Kumar ... vs Union Of India Through Cbi on 12 May, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. M. P. No. 3421 of 2021
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Tapas Kumar Lahiry @ Tapas Kumar Lahiri ... .... Petitioner
Versus
Union of India through CBI ... .... Opp. Party
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CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
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For the Petitioner : Mr. Indrajit Sinha, Advocate
For the CBI : Mr. P.A.S. Pati, Sr. Spl.P.P.
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C.A.V. ON 01.05.2023 PRONOUNCED ON 12 / 05/ 2023
1. The instant criminal misc. petition has been filed for quashing the entire
criminal proceeding including the order taking cognizance dated
02.12.2021 passed in R.C. Case No. 09(A) of 2017-D whereby and
whereunder, prima facie case has been found to be made out under
Section 420 of IPC and Section 13(2) read with Section 13(1)(d) of the
Prevention of Corruption Act.
2. PROSECUTION CASE
I. The accused persons (public servants) in conspiracy with M/s
Jiamusi Coal Mining Machinery Company Limited, Beijing (China)
and its Indian agent cheated M/s Bharat Coking Coal Limited,
Dhanbad during the period 2009 to 2016 by issuing supply order for
two Road Header Machines for use in coal mining activities and
making payment to the said company accepted which were not as
per the technical specification, due to which, both the machines
broke down / remained unutilized, resulting wrongful loss of Rs.
11.60 crores (approx.) to BCCL.
II. Against the specification of Road Header Machines of 1.6 M, the
said company supplied machines with overall height much more
than specified in the NIT and supply order.
III. Both the machines were not accepted by the BCCL, W.J. Area,
Moonidih, Dhanbad as they were not as per specification, but still
the accused persons accepted the machines and made 80% payment
and they tried to justify the said illegal procurement to reuse the
rejected machines instead of insisting the said firm to replace or
modify the machines at their cost. It was known to the accused
persons that the height of machines was much higher than the
available seam of coal and as such there was no way the machines
could have been put to any productive use.
IV. Accused persons failed to recommend any action against the said
company or its Indian agent, who had supplied the machines, which
were not as per the supply order and released 80% payment.
V. Road Header Machines broke down since November, 2015 and
another was with effect from 03.02.2016 due to expiry of permission
time of field trial. Thus, the accused-public servants of BCCL, firm
and others cheated the BCCL and caused wrongful loss to the tune
of Rs. 11.60 crores (approx) and corresponding wrongful gain to
themselves.
VI. The Director, Central Vigilance Commission, New Delhi vide order
No. 015/COL/051-337020 dated 17.02.2017 in exercises of powers
conferred under Section 8(1)(d) and 8(1)(h) of the C.V.C. Act, 2003
had directed the CBI to conduct an investigation into the manner of
acquisition of equipments, whose specifications were altogether
different from the tendered one, non-returning of such inappropriate
machinery, making of payment even though the machinery delivered
was not the one ordered for and other connected issues including the
role of the officers, who dealt with the issue, foreign supplier, their
Indian agent and others involved.
VII. On these materials, charge sheet was filed for offence under Section
120-B and 420 of the Indian Penal code and Section 13(2) read with
13(1)(d) of the Prevention of Corruption Act, 1988 against the
petitioner and other accused persons and accordingly, FIR R.C. Case
No. 09(A) of 2017-D was registered on 22.11.2017.
VIII. Approval from the Director General of Mines Safety, Dhanbad
regarding the machines. Road Header Machines were procured by
the officers of M/s BCCL from M/s Jiamusi Coal Mining Machinery
Company Limited, Beijing (China) and said machines did not clear
the field trial to get an approval from DGMS, Dhanbad, as a result
of which, machines remained unutilized, resulting in huge wrongful
loss to M/s BCCL and corresponding gain to M/s Jiamusi Coal
Mining Machinery Company Limited and its Indian agent.
CASE OF THE PETITIONER
3. Mr. Indrajit Sinha, learned counsel appearing for the petitioner submits
that the first global tender for the purchase of road header machine was
scrapped on 20.02.2007 as the bidders did not quote as per technical
specification.
4. The second global tender was floated on 12.02.2008 for two such
machine.
5. M/s Bharat Coking Coal Limited, Dhanbad initiated process for
procurement of two Road Header Machines on 14.12.2005 and a global
tender was floated by M/s BCCL on 02.06.2006 and due to non-
response by the bidder, as per the global tender/technical specification,
the said global tender was scrapped on 20.02.2007 and on certain
modification / technical specification of fresh global tender was floated
on 12.02.2008
6. The main contention on behalf of the petitioner is that once the Road
Header Machines were delivered at BCCL, Moonidih Mines, Dhanbad,
which was not as per the specification of NIT and the Chinese Company
asked the BCCL to send back the said machines, it was not financialy
viable to send the machines back to China for making the requisite
rectification in its height. Following this, the Board of Directors, BCCL
took a considered and informed decision in the matter to utilize it
instead of sending it back.
7. This has also come in the charge-sheet [at internal page-32], that the
BCCL had decided to utilise the machine in 16 seams of Moonidih
mines where the thickness of coal was in the range of 1.9 M to 2.9 M.
Out of total purchase amount of Rs.22 Crores, only Rs.11 Crores has
been paid, as such, M/s BCCL cannot be said to have suffered any
substantial loss and further Bank guarantee has already been encashed.
ARGUMENT OF CBI
8. Mr. P. A. S. Pati, learned counsel for the CBI has vehemently opposed
the prayer. It is submitted that investigation revealed that unsuitable
Road Header Machines were procured by accused officials of BCCL
from M/s Jiamusi Coal Mining Machinery Company Ltd, China and the
machines could not clear field trial to get approval from DGMS,
Dhanbad. As a result, both machines remained unutilized resulting into
huge wrongful loss to BCCL and corresponding gain to M/s Jiamusi
Coal Mining Machinery Company Ltd., China and M/s Minop
Innovative Technologies (P) Ltd., Kolkata. Both the Road Header
machines became idle or of no use to BCCL resulting in wrongful loss
of Rs.11,15,62,132/- to BCCL with corresponding wrongful gain to M/s
Jiamusi Coal Mining Machinery Company Ltd., China and M/s Minop
Innovative Technologies (P) Ltd., Kolkata due to conspiracy, criminal
misconduct and abuse of official position by the accused officials of
BCCL.
9. It is further submitted that Tapas Kumar Lahiri, the then Director
(Technical) Operation, BCCL Headquarter, Dhanbad approved the
proposal for modification of various criterias given in NIT which was
sent to him for his approval without safeguarding the interest of BCCL.
This modification was made which was beyond his official capacity and
C.M.D. was competent to make such modification. He also cleared the
draft Board agenda note for acceptance of unsuitable supplied road
header machines and got approved from BCCL, Board of Directors.
10. At the time of framing of charge, the probative value of evidence is
beyond consideration. The petitioner by abusing his official position as
Director (Technical) Operation, BCCL Headquarter, Dhanbad
dishonestly and fraudulently in approving the modification of certain
NIT clause.
ANALYSIS
11. In the present case investigation disclosed materials which shows that
undue concessions and favours were made to benefit of the supplier
Company. Some of the materials that have been arraigned against the
officers of company in extending favour to the Company are as under:
a. M/s Minop Innovative Technologies Pvt. Ltd. was permitted to
participate in the pre bid meeting although it had not disclosed the name
of the manufacturing company it was representing. After the pre bid
meeting two vital NIT clauses were modified causing undue benefit to
the accused company M/s Minop Innovative Technologies (P) Ltd
Kolkata. Last date of opening tender was extended up to 26.05.2008 and
subsequently it was further extended up to 28.07.08. M/s Minop
Innovative Technologies (P) Ltd. Kolkata signed a MOU with M/s
Jiamusi Coal Mining Machinery Company Ltd. on 25.7.2008 just before
last day of tender submission to form a consortium. The clause of global
tender and NIT did not allow the consortium to participate in the bid,
despite this M/s Minop Innovative Technologies Pvt. Ltd. was permitted
to participate in the tender process.
b. Offer and technical specifications given by the Chinese firms were not
fulfilling NIT Parameters which was liable to be rejected but the same
was accepted.
c. The offered machine was violating six major criterion given in the NIT.
The biggest deviation was the overall height of the machine which was
2.5 M against the maximum prescribed height of 1.6 M in the NIT.
Despite the defects in the tender bid the price bid was opened of M/s
Jiamusi Coal Mining Machinery Company Ltd.
d. It was mentioned in the supply order that machines would be dispatched
from China only after approval of the machine drawing by BCCL. In
furtherance of criminal conspiracy to show undue favour to M/s Jiamusi
Coal Mining Machinery Company Ltd., accused officers of the BCCL
enclosed the unapproved and disputed machine drawing submitted by
M/s Jiamusi Coal Mining Machinery Company Ltd, along with its offer,
in the supply order. As per this machine drawing, overall height of
machine was 2.5 m. The requirement as per NIT was 1.6 m (+/- 5%
variation) only. The NIT had the provision that in case any inspected
tested machine failed to confirm to the specifications, the purchaser may
reject them and the supplier shall either replace the rejected machine and
make alternative regiment to meet specification requirements "free of
cost" to the purchaser.
e. The clause in the NIT, for inspection/tests to be conducted on the
premises of the supplier at point of delivery and/or at the goods of final
destination was also dropped from the supply order.
f. No action was recommended against the supplier Company or its Indian
agent who had supplied the machines which were not as per the supply
order.
g. The required DGMS approvals were not obtained before their operation
in the mines.
h. The payment clause of NIT stipulated that for imported supply, 80%
value of each equipment and accessory would be paid only against letter
of Credit and equipment should be accompanied with relevant dispatch
documents including inspection certificate could be along with
inspection certificate of CIL/BCCL. But in the supply order the said
condition was not incorporated.
i. The accused companies had no safety approvals from the Director
General Mines Safety (DGMS), regarding this machine.
12. Petitioner is facing prosecution, inter alia, for the offence of criminal
conspiracy with other officers to favour the supplier Company. In the
teeth of the above materials, it cannot be said that the charges are
groundless. There are specific allegations against this petitioner that he
dishonestly approved the proposal for modification of various criteria
given in the NIT that were sent to him for his approval without
safeguarding the interest of BCCL. After commission of the two Road
header machines at Moonidih Mines an inspection was conducted by the
officers of the BCCL on 6.12.2011 was submitted a report that height of
the supplied machine was different from the specifications of supply
order and as such they were not in a position to accept the machines.
One of the inspecting officer A.K Dutta, stated during investigation that
he had informed the matter of height of the machine to this petitioner
and other officers but he was pressurized by them to accept the machine.
Considering the above discussed materials, the plea of the petitioner
that there were no sufficient grounds against him, cannot be
countenanced. The definition of Section 13 (2)(d) of the P.C Act is wide
enough to bring within its sweep, the acts of the public servant by
corrupt or illegal means, obtains for himself or for any other person any
valuable thing or pecuniary advantage; or by abusing his position as
public servant, obtains for himself or for any other person any valuable
thing or pecuniary advantage. It has been held in State of Odisha VS
Pratima Mohanty :2022 0 AIR(SC) 41:
At the outset, it is required to be noted that by the impugned
judgment and order the High Court in exercise of its powers under
Section 482 Cr.P.C. has quashed the criminal proceedings for the
offences under Section 13(2) read with Section 13(1)(d) of the act
and Section 420 read with Section 120B IPC. From the impugned
judgment and order passed by the High Court, it appears that the
High Court has entered into the merits of the allegations and has
conducted the mini-trial by weighing the evidence in detail which,
as such, as observed and held by this Court in a catena of decisions
is wholly impermissible. As held by this Court in the case of State
of Haryana And Ors. vs Ch. Bhajan Lal And Ors., AIR 1992 SC
604, the powers under Section 482 Cr.P.C. could be exercised
either to prevent an abuse of process of any court and/or otherwise
to secure the ends of justice. In the said decision this Court had
carved out the exceptions to the general rule that normally in
exercise of powers under Section 482 Cr.P.C. the criminal
proceedings/FIR should not be quashed.
Under the aforesaid facts and circumstance of the case and
the reasons discussed above, the Criminal Miscellaneous Petition
stands dismissed.
Pending I.A., if any, stands disposed of.
(Gautam Kumar Choudhary, J.)
Jharkhand High Court, Ranchi
Dated the 12th May, 2023
AFR / AKT/Sandeep/Anit
