Kerala High Court
A.B.A.Dubash @ Adi Ardeshir ... vs Central Bureau Of ... on 26 April, 2022
OP(CRL.) NO. 82 OF 2021, OP(CRL.) NO. 92 OF 2021 &
CRL.REV.PET NO. 762 OF 201
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
TUESDAY, THE 26TH DAY OF APRIL 2022 / 6TH VAISAKHA, 1944
OP(CRL.) NO. 82 OF 2021
(CRL.M.P.NO.494/2015 IN CC NO.15/2006 OF THE SPECIAL JUDGE
SPE/CBI- II ERNAKULAM)
PETITIONER/S:
A.B.A.DUBASH @ ADI ARDESHIR DUBASH
S/O.LATE BOMANJI ARDESHIR DUBASH,MOUNT NAPEAN,LADY
LAXMI DAS MARG,MUMBAI-400036, RESIDENT OF
NO.3,ENNISMORE GARDENS,FLAT 1,LONDON SW7,U.K.
BY ADVS.
R.ANIL
SRI.M.SUNILKUMAR
SRI.SUJESH MENON V.B.
SRI.THOMAS ABRAHAM (NILACKAPPILLIL)
SRI.T.ANIL KUMAR
SRI.THOMAS SABU VADAKEKUT
SHRI.MAHESH BHANU S.
SMT.S.LAKSHMI SANKAR
SHRI.RESSIL LONAN
RESPONDENT/S:
CENTRAL BUREAU OF INVESTIGATION/SPE,
KOCHI,PIN-682030,REPRESENTED BY ITS PROSECUTOR.
SRI.B.RAMAN PILLAI(SR.) FOR THE PETITIONER ,
CGC,SRI.SUVIN R.MENON FOR THE RESPONDENT
THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ALONG WITH
OP(CRL)No.92 OF 2021 & CRL.R.P.No.762 of 2014 ON 6.04.2022, THE
COURT ON 26.04.2022 DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
TUESDAY, THE 26TH DAY OF APRIL 2022 / 6TH VAISAKHA, 1944
OP(CRL.) NO. 92 OF 2021
(CRL.M.P.NO.495/2015 IN CC NO.15/2006 OF THE SPECIAL JUDGE SPE/CBI-
II ERNAKULAM)
PETITIONER/S:
M/S.ARDESHIR.B.CURSETJEE AND SONS LTD.
MACKINNON MACKENZIE BUILDING, 4, SHOORJI VALLABHDAS MARG,
BALLARD ESTATE, MUMBAI-400001,
REPRESENTED BY ITS DIRECTOR, CHANDRASEKAR KRISHNAMURTHY.
BY ADVS.
B.RAMAN PILLAI (SR.)
SRI.M.SUNILKUMAR
SRI.SUJESH MENON V.B.
SRI.THOMAS ABRAHAM (NILACKAPPILLIL)
SRI.T.ANIL KUMAR
SRI.A.RAJESH
SRI.THOMAS SABU VADAKEKUT
SHRI.MAHESH BHANU S.
SMT.S.LAKSHMI SANKAR
SHRI.RESSIL LONAN
SRI.R.ANIL
RESPONDENT/S:
CENTRAL BUREAU OF INVESTIGATION/SPE
/SPE, KOCHI, PIN-682030,
REPRESENTED BY THE STANDING COUNSEL.
SRI.B.RAMAN PILLAI(SR.) FOR THE PETITIONER ,
CGC,SRI.SUVIN R.MENON FOR THE RESPONDENT
THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ALONG WITH
OP(CRL)No.82 OF 2021 & CRL.R.P.No.762 OF 2014 ON 6.04.2022, THE COURT
ON 26.04.2022 DELIVERED THE FOLLOWING:
OP(CRL.) NO. 82 OF 2021, OP(CRL.) NO. 92 OF 2021 &
CRL.REV.PET NO. 762 OF 201
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
TUESDAY, THE 26TH DAY OF APRIL 2022 / 6TH VAISAKHA, 1944
CRL.REV.PET NO. 762 OF 2014
(AGAINST THE ORDER DATED 7.3.2014 IN CRL.M.P.NO.2000/2008 IN
CC.NO.15/2006 ON THE FILE OF THE SPECIAL JUDGE (SPE/CBI) - II
ERNAKULAM)
REVISION PETITIONER/ACCUSED:
G.MOHANDAS
S/O P.GOPALAN, SIVAM, APR-6, AMBELIPADAM ROAD, VYTTILA,
COCHIN-683019.
BY ADVS.
SRI.S.RAJEEV
SRI.K.K.DHEERENDRAKRISHNAN
RESPONDENT/COMPLAINANAT/STATE:
STATE
REP. BY THE STANDING COUNCIL, CENTRAL BUREAU OF
INVESTIGATION, HIGH COURT OF KERALA, ERNAKULAM-682031
(CRIME NO.RC-13(A)/2004 DATED 27.5.2004)
CGC,SRI.SUVIN R.MENON FOR THE RESPONDENT
CGC,SRI.SUVIN R.MENON FOR THE RESPONDENT
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION
ALONG WITH OP(CRL)No.82 OF 2021 & OP(CRL)NO.92 OF 2021 ON
8.04.2022, THE COURT ON 26.04.2022 DELIVERED THE FOLLOWING:
OP(CRL.) NO. 82 OF 2021, OP(CRL.) NO. 92 OF 2021 &
CRL.REV.PET NO. 762 OF 201
4
SUNIL THOMAS, J.
-------------------------------------
OP(Crl)No.82/2021, OP(Crl)92/2021 and Crl.R.P.No.762 of 2014
---------------------------------
Dated this the 26th day of April 2022
COMMON ORDER
The above Original Petitions are filed by accused No.11 and 10
respectively and the Crl.R.P. is filed by accused No.14, in CC No.15/2006 on
the files of the special Judge, CBI/SPE-II,Ernakulam, for offences punishable
under sections 120B read with section 420 IPC and section 13(2) read with
section 13(1)(d) of Prevention of Corruption Act.
2. The facts, as are discernible from the available records, indicate that
accused Nos.1 to 9, 12 & 13 were public servants of the Government of India,
officiating in various capacities in FACT, which is a public sector undertaking
of the Government of India. Accused No.10 is one ABC Sons & company Ltd.,
a Private Limited Company with accused No.11, as its Chairman. FACT Ltd.
had two plants in the suburbs of Cochin city, one at Udyogamandal and the
other at Ambalamedu. FACT, had a storage plant of ammonia at Willington
Island near Cochin port. Liquid ammonia that were brought by ships were
OP(CRL.) NO. 82 OF 2021, OP(CRL.) NO. 92 OF 2021 &
stored at liquid ammonia storage plant at Willington Island. It was carried to
Udyogamandal plant, using barges. A contract was entered into, with the 10 th
accused for carrying ammonia from Willington Island to the plant at
Udyogamandal for a period of ten years. The above Contract to cover a
distance of 15 k.m was entered into through an open tender.The agreed rate
for such transportation was Rs.390/- per metric ton, with 2% increase per
annum. Thus, ammonia that was imported from abroad through ship, would
be stored at Willington Island storage plant, from where it would be
transported in two barges of ABC company at the above quoted rates. While
so, pursuant to the orders of the High court of Kerala, that the ammonia plant
situated at Willington Island posed threat to the public, it was ordered to be
decommissioned. Consequently, FACT decommissioned the above storage
plant and commissioned a new ammonia plant at Udyogamandal. This
necessitated transfer of liquid ammonia from Udyogamandal plant to
Ambalamedu, which was another production unit of the FACT.
3. Since the contract with the 10 th accused for transporting from
Willington Island was subsisting, the Board of Directors of FACT resolved to
negotiate with the 10th accused for continuing with above facility for
transporting liquid ammonia in barges from Udyogamandal to Ambalamedu,
OP(CRL.) NO. 82 OF 2021, OP(CRL.) NO. 92 OF 2021 &
in variation of the original contract. Consequently, by order dated 7/7/1994 of
the CMD, Abraham Thomas, who was also arrayed as accused, but died
pending the proceedings, a committee consisting of first accused, the third
accused, 4th accused , 7th accused and 13th accused was authorized to
negotiate with the 10th accused as well as the 5 th accused. All the above
persons were the senior officers of FACT. It seems that pursuant to a series
of negotiations, a proposal was placed before FACT for awarding the
contract at a very enhanced rate. While this was under consideration, under
the direction of the Central Government it was resolved to go for a public
tender. Public tender was conducted. A committee for scrutinizing the
tender,finalising it and to make recommendations for the transportation of
liquified ammonia from Udyogamandal and Ambalamedu, was constituted.
The above committee included senior officers of FACT, some among whom
had also been the members of the earlier committee constituted by the CMD.
The above committee, after rejecting the tenders of several tenderors,
accepted the tender of the 10th accused as well as that of another tenderor,
M/s. Ocean Dredging India Ltd., Udyogamandal.
4. It was alleged by the prosecution that all the accused along with the
CMD, had entered into a conspiracy to cheat the Government of India and to
OP(CRL.) NO. 82 OF 2021, OP(CRL.) NO. 92 OF 2021 &
cause wrongful gain to the 10th accused, by accepting the tender offered by
the 10th accused at a very high rate. It was also alleged that, the new
committee acted in continuation and in tune with the decision of the earlier
committee to award contract to the 10 th accused. Even after the tendering
process, methods were allegedly adopted by the accused, to promote the 10th
accused by modifying the conditions of tender, to suit the qualifications of the
10th accused and to reject the tenders of other companies which stood
otherwise qualified. Further they accepted the tender of another benami
company of the 10th accused company. It was alleged that the above
accused, by abusing their official position as public servants, in order to
show undue favour to ABC & Sons Ltd., dishonestly prescribed one year's
experience in water transportation of liquified gas as essential for
participating in the tender, as against one year experience in water
transportation, which was originaly prescribed by the Department of
Fertilizers. The further allegation was that only 22 days time for preparation
and submission of tenders was granted, whereas designing and casting itself
of the barges to be used, would have taken few months. The committee
rejected three tenders of Great Eastern Company, Mumbai, Kerala Shipping
and Inland Navigation Corporation, (a Government of Kerala Undertaking)
OP(CRL.) NO. 82 OF 2021, OP(CRL.) NO. 92 OF 2021 &
and M/s.Goodwill Engineering Works,Pondichery, quoting lack of one year's
experience in water transport of liquified gas and rejected another tender
submitted by M/s. Ocean Dredging Ltd.,which had three years experience in
water transportation of liquified ammonia, but at the same time accepted the
tender in the name of Nafthomar Shipping Company Ltd.,which was a binami
tenderer of M/s.ABC & Sons Ltd. It was later revealed that the earnest money
deposit for the above tenderer was arranged by the 11th accused, confirming
that it was only a benami tenderer of the 10 th accused. It was further alleged
that the tender of Nafthomar Shipping company was defective also, for
various other reasons.
5. On the basis of the investigation conducted, final report was laid for
offences punishable under the provisions of the Indian Penal Code as well as
the provisions of the Prevention of Corruption Act. Pursuant to the summons,
the petitioners herein appeared and along with two other accused filed
discharge applications. By an order dated 7.3.2014 and another common
order dated 30/10/2020, all the discharge applications were dismissed.
Aggrieved by the above order, petitioners have approached this court.
6. Heard the learned senior counsel for the original petitioners, the
learned counsel for the revision petitioner and ASGI for CBI. Perused the
OP(CRL.) NO. 82 OF 2021, OP(CRL.) NO. 92 OF 2021 &
available records. The common order of this court in Crl.R.P.No.702/2020,
703/2020 and 704/2020 filed by other co-accused was also placed before this
court.
7. The records indicate that, the Director Board in its decision No.
318.07 had authorized the CMD to hold discussions with ABC Company.Ltd,
regarding the transportation by barge from Udyogamandal to Ambalamedu.
It seems that the Board did not consider the possibility of inviting fresh
tenders . One of the reason stated was that the original contract with ABC
company, the 10th accused, was subsisting and was to expire only in 2010.
Premature cancellation of it would have invited huge damages. The
committee conducted discussions with M/s. ABC & Sons Ltd, for several
days and arrived at certain decisions. The rate at which the committee
agreed upon was Rs.1641/- per ton. It seems that a proposal was also put
up, to have night navigation of the barges to save transportation charges. It
seems from the report that the possibility of transport during night was
discussed in several rounds of discussion with ABC Sons & company. It
was done in the background that Port Trust and Inland Waterways Authority
of India had informed that there were no statutory restrictions on night
navigation. The view of the committee was that night navigation would
OP(CRL.) NO. 82 OF 2021, OP(CRL.) NO. 92 OF 2021 &
increase the effective utilization of barges, reduce the requirement of new
barges and thereby substantially bring down the per ton transportation cost.
However, this proposal was not acceptable to ABC Sons & company Ltd.,on
the ground that hazardous chemical like ammonia cannot be transported
during night for safety reasons, since barges will have to be carefully
maneuvered through the narrow spaces between the pillars of existing
bridges, whose offsets were submerged in water and were uneven. It was
also stated that there could be lack of proper visibility in the curved portion of
the water ways. It was further stated that there was a practice among the
local fishermen, setting fishing nets in the waterways, during night, which
would hinder the free movement of the barges and may jeopardize the safe
transportation of the hazardous cargo. They also pointed out that, ports all
over the world do not permit piloting of vessels, carrying ammonia to the
harbour, after sunset.
8. While so, Central Government directed that contract shall be
awarded only by an open tender. It was directed by the Ministry to invite
competitive bids from among the experienced and reputed contractors in the
field of water transportation and to award the contract to selected bidder
following the normal tender procedure. Accordingly, it was resolved to invite
OP(CRL.) NO. 82 OF 2021, OP(CRL.) NO. 92 OF 2021 &
global tenders by publication in newspapers. A committee was thereafter
constituted by the CMD consisting of some of the accused for finalising the
tender procedure and for the scrutiny of the bids received, overseeing the
activities as finalization of the tender documents, issue of tenders, scrutiny of
the bids received and thereafter making suitable recommendations.
According to the prosecution, in the above process, several changes were
made to the tender process,rules were flouted and conditions were modified
to ensure that the 10th accused turned out to be the successful bidder.
9. A copy of the chargesheet was produced before this court by the
revision petitioners. It discloses that the specific allegation against the
accused was that the CMD conspired with accused Nos.10 and 11 and
appointed A1,A3,A4,A7 and A13 for conducting negotiation with M/s.ABC
Sons & company Ltd. It was alleged that all those accused, without calling
for records of ABC Sons & Company Ltd. accepted the capital cost and
variable cost (expenditure of repairs, maintenance, insurance charges,
wages and fuel charges), accepted the suggestions of ABC. Further, they
accepted the suggestion of the above company not to resort to night
navigation, though Cochin Port Trust and Inland Water Authority of India had
asserted that there was no ban on night navigation and IWAI had offered to
OP(CRL.) NO. 82 OF 2021, OP(CRL.) NO. 92 OF 2021 &
provide all facilities for night navigation. It was also alleged that the accused
approved Rs.17.39 crores as cost of each barge, though two barges were
purchased by ABC & Sons only about six years back, at the rate of Rs.500
Lakhs each. Further, the cost of barges quoted by yards at Goa were Rs.10
Crores and 12 Crores respectively. It was charged by the prosecution that,
hence the price offered by the company and accepted by the negotiation
committee was highly excessive. It was also alleged that road
transportation which was less costly was not recommended by the
committee. Yet another allegation against the committee was that, as the
maintenance charges for four barges, the committee accepted Rs.27.80
Crores, ,whereas the actual expenses incurred by the same company for the
entire fleet of barges and other transportation methods for seven years was
only 4.93 crores. The further allegation was that, the wages for the
employees was accepted at a higher rate than the actual wages paid during
the previous period. Prosecution has yet another allegation that an
unsolicited offer made by one Ocean Dredging India Ltd. for carrying out
operation for Rs.175 per metric ton was rejected and the same committee
accepted the offer made at a much higher rate by the 10 th accused at
Rs.1620/- per metric tons.
OP(CRL.) NO. 82 OF 2021, OP(CRL.) NO. 92 OF 2021 &
10. It was further alleged that the tender committee had prescribed a
qualification of one year experience on water transportation of liquid ammonia
which was contrary to the suggestion given by the Ministry. It was stated
that Department of Fertilizer, Government of India, had suggested experience
in water transportation alone as the condition for qualification in the tender. It
was suggested that three tenders submitted by M/s.Great Eastern Company
Ltd.,Mumbai, M/s.Kerala Shipping and Inland Navigation Corporation, (a
Kerala Government Undertaking) and M/s.Goodwill Engineering Works,
Pondicherry were rejected, quoting lack of one year 's experience in water
transportation of liquefied gas. Committee rejected another tender submitted
by M/s.Ocean Dredging India Ltd.Udyogamandal, which had three years
experience in water transportation of liquified ammonia. There was a further
allegation that however the tender of M/s. Nafthomar Shipping and Trading
Company, which was a binami tenderer of M/s.ABC Sons, signed by one
Captain Lickhari with the earnest money deposit arranged by the 11th
accused was accepted, though the tender did not fulfill several important
conditions. It was alleged that the committee had recommended a rate of
Rs.1600/- per metric ton for barge transportation of liquified ammonia to
Ambalmedu, which was later awarded to M/s. ABC & Sons Ltd. at a rate of
OP(CRL.) NO. 82 OF 2021, OP(CRL.) NO. 92 OF 2021 &
RS.1550/- per metric ton. It was alleged that the accused thus caused
wrongful loss of minimum Rs.78.56 Crores to the FACT, and corresponding
wrongful gain to themselves.
11. Charge sheet laid by the prosecution clearly show that the
prosecution allegation has essentially two parts. Charge Nos. 1 to 7 related
to the acts done pursuant to the decision taken by the Director Board to
negotiate with the existing contractor, the 10 th accused. A committee was
constituted which consisted of some of the accused. Charges 1 to 7 related
to the misfeasance and malfeasance allegedly committed by the members of
the committee in combination with the CMD , to favour the 10 th accused.
The crux of the allegation is that in the course of the negotiation, the
committee blindly accepted the proposal made by the 10 th accused at the rate
of Rs.1620/- per ton for ten years, without verifying the records and
statements to satisfy the claim of he 10th accused. The allegation was that
there was a huge escalation of the rate from the agreed rate of Rs.390/- with
2% enhancement per year entered into in 1990, for a period of ten years.
12. The specific charges against accused No.10 and 11 are charges
No.14, 15,32 and 33. The specific charges against accused No.14 are
charges NO.36 and 37. Challenging the charges it was vehemently
OP(CRL.) NO. 82 OF 2021, OP(CRL.) NO. 92 OF 2021 &
contended by the learned senior counsel for the original petitioners that none
of the allegations set up by the prosecution against the revision petitioners
would lie. It was contended by the learned senior counsel that the final report
dated 16.12.2006, was based on an incomplete investigations. Hence
sufficient materials to constitute offences under S.120 B and 420 IPC, which
above were varied against the said accused. It was pointed out that on
30.6.2006, Investigating Officer had informed the court that to complete the
conspiracy and cheating. The investigating officer wanted to conduct
investigation in 5 foreign countries and 26 specific points. Hence before
submitting the final report no evidence could be collected. Another contention
set up was that, none of the witnesses except capt Likhari who was made an
approvior. It was further contended that all the statements of Capt Likhari
would show that tender by M/S. nanftomar was submitted pursuant to
introduction of that company and that his statement would show that A & C
company was not in any manner involved in submission of tender.
13. Regarding the allegation of inflated rate of transportation capital
costs etc. and that it was intimated to induce the members to arrive at the
reasonable bench rate of M1620, the stand of the company was that such an
argument was fallacious since no body had even dream of that FACT would
OP(CRL.) NO. 82 OF 2021, OP(CRL.) NO. 92 OF 2021 &
go for tender proceedings at any point of time for awarding the contract of
LFG Transportation. The allegations that the rates were relatively higher was
also without any basis and was essentially based on surmises. Investigating
Officer, had not questioned any Director or Officer or staff of M/s ABC
Company to find out actual expenses. However, it is pertinent to note that
Capt Likhari had given incriminating statements about M/s.ABC Company.
The rates were based by CBI on the basis of entries in papers seized from
GM of Annie Division of FACT. Again it was contended that though in the 2 nd
final report dated 17.10.2008, none of the additional document and statement
of contentions gathered, improved the prosecution case.
14. Another contention of the original petitioners was that awarding of
contract to M/S ABC was challenged in OP.No.36403/2001 and
OPNo.2375/2022. CBI investigation was sought. However, Division Bench of
this court did not grant that relief. It was also contended that granting of
pardon to the 12th accused was not proper.
15. Aggrieved by the rejection of Crl.M.P.2000/2008, the 14 th accused
has approached this court by filing Crl.R.P.No.762/2014. The above revision
petitioner was a State Government nominee to the Board of Directors of
FACT. According to him, he was implicated on the mere reason that he had
OP(CRL.) NO. 82 OF 2021, OP(CRL.) NO. 92 OF 2021 &
sent three letters inducing the Chairman and Managing Director to award
contract to ABC sons.
16. Referring to the 3 controversial letters sent on 1.4.1996,
23.,4.1996 and 11.7.1996 and produced as Annexure III series in
Crl.R.P.No.762/2014, the learned counsel vehemently contended that the
letter would show that the petitioners had made all efforts to protect the
interest of the company from huge loss. It was further contended that by
those letters he did not recommend any company, but only expressed the
anxiety regarding the loss that may be sustained, due to delay, if any, in
execution of the project. Another major contention set up by the learned
counsel for the petitioner was that in charges 36 and 37, though allegations of
Section 420 IPC and 120 IPC were attributed along with other offences, no
material to substantiate the above allegations were laid before trial court.
Another contention was that the investigating agency did not establish any
objectionable features in proposing water transportation as the mode of
transportation of materials.
17. It was contended by the petitioners that, the revision petitioners
were appointed by the CMD to negotiate with the 10 th accused, pursuant to a
decision taken by the Board of Directors. The Board of Directors, in its
OP(CRL.) NO. 82 OF 2021, OP(CRL.) NO. 92 OF 2021 &
wisdom had resolved, after considering all possible contingencies and also
that the contract with the 10th accused was subsisting and premature
termination of the contract may entail huge financial burden by way of
damages on the FACT. It was contended that after negotiation, report was
submitted to the Director Board which considered all the pros and cons,
evaluated the various factors involved and ultimately approved Rs.1620/- per
ton for a period of ten years with a further extension on mutual agreement .
The crux of the contention of the learned counsel for the revision petitioners
was that the negotiation committee could not be fastened with any criminal
liability on a mere allegation that they had favoured the 10 th accused.The
specific contention was that decision to negotiate with the 10 th accused for
continuation of the contract on fresh terms, in the light of the changed
circumstances, was taken consciously by the Board of Directors. The
Negotiation Committee was only authorized to negotiate and to arrive at a
negotiated rate. The matter was again placed before the Director Board
which was competent to take decision. Viewing from this angle, when the
ultimate decision was to be taken by the Director Board, no criminal liability
can be fastened on the negotiation committee on the mere ground that they
had omitted to take into consideration of few parameters, which according to
OP(CRL.) NO. 82 OF 2021, OP(CRL.) NO. 92 OF 2021 &
the prosecution were relevant, unless there are materials to establish criminal
conspiracy among the parties.
18. The specific allegation of the prosecution was that, an international
bid was not adopted, pursuant to a conspiracy among all the accused. It was
also charged by the prosecution that had an international tender been
floated, it would have resulted in more competitive offers. There cannot be
any dispute that the original contract for a sum of Rs.390/- per ton with an
annual escalation at the rate of 2% would have continued till 2000, if the
contract had continued. Due to the decommissioning of the ammonia plant
at Willington Island, FACT was constrained to seek alternative arrangements.
It is also on record that various proposals were mooted by FACT to
commission the ammonia plant at Udyogamandal in March 1997 and
necessarily a new arrangement for transportation to Ambalamedu had to be
eventually looked into. It was also contended by the learned counsel for
accuse, that the possibility of an international tender was considered by the
Board of Directors and rejected. The allegation that the negotiation
committee did not consider the possibility of night travel which would have
considerably reduced the rate and saved huge amount, was not correct . It
was considered by the Director Board and found to be not feasible. The
OP(CRL.) NO. 82 OF 2021, OP(CRL.) NO. 92 OF 2021 &
allegation that alternative modes of transportation was not considered by the
negotiation committee was also not correct, in the light of the fact that it was
beyond the scope of the negotiation committee to suggest for alternative
method of transportation, when they were authorized only to negotiate on
the rates for transportation of ammonia in barges in a different route. The
further allegation was that pursuant to the conspiracy, an unsolicited offer
made by M/s.Ocean Dredging was rejected by the negotiation committee,
though they had offered a lesser rate.
19. It seems that the scope of an international tender was considered
by the Director Board. However, the committee for cogent resons decided to
proceed with negotiation . It was also contended that alternate methods of
transportation was also considered by the Director Board. It is pertinent to
note that even from 1990 onwards, liquid ammonia was being transported
through barges, though road access was still available. Transportation by rail
was not possible, since the Udyogamandal plant did not have rail
accessibility. The alternate mode was considered by the Board of Directors
and rejected on the specific reason that road transport will not be permitted
even for Naphtha. Hence, none of the above alternate modes could be
thought of. It was contended by the learned counsel for the petitioner that
OP(CRL.) NO. 82 OF 2021, OP(CRL.) NO. 92 OF 2021 &
night travel was also considered by the committee at the time of negotiation
and placed before the Director Board at point No. 9.0, which had considered
it. The committee had discussed with ABC & Sons Company to consider
night navigation, as Cochin Port Trust and Inland Waterways Authority of
India had informed that there was no statutory restriction on the night
navigation. It was suggested by the committee that the night navigation
would increase the effective utilization of barges and reduce the requirement
of new barges thereby bringing down the per ton transportation charge
substantially.
20. However, the above proposal was rejected by ABC company
stating that hazardous cargo like ammonia could not be recommended for
night navigation on safety consideration. Barges will have to be carefully
maneuvered through narrow spaces between pillars of the existing bridges
which were stated to be sub merged and uneven. There was lack of proper
visibility at the curved portions of the waterways. Another hitch was that the
fisherman in that area had a practice of setting fishing nets in the waterway
during night, hindering the movement of barges. This was reported by the
committee as evident from the common order of this court in
Crl.R.P.No.702/2020 and other cases. This was considered by the Director
OP(CRL.) NO. 82 OF 2021, OP(CRL.) NO. 92 OF 2021 &
Board in detail and accepted, as evident from the above common order.
21. The prosecution has the specific case that the various para meters
which were placed by the 10 th accused for claiming a huge escalation in
rates were accepted by the negotiation committee without any basis.
Prosecution alleged that escalation in rates proposed by the 10 th accused
under several heads were sought to justify the total claim of Rs.1620/- per
ton. The specific allegation of the prosecution was that, had the records of
the company been called for and the expenses incurred by the company
under the corresponding heads during the previous period counter checked,
it could have been established that their claims were highly inflated and
exorbitant increase was sought without any basis. No doubt, there is a huge
escalation of price from Rs. 390/- with 2% enhancement originally entered
into, which would have continued, had the contract been in force till its
original expiry year of 2000, to an enhanced rate of Rs.1620/- per ton for a
further period. The question whether all the data suggested by the 10 th
accused were accepted blindly by the committee, whether there were any
latches on the part of the committee in not requiring the 10 th accused to
produce documentary materials to substitute their claim for enhanced rate on
various grounds or whether those parameters were not taken into
OP(CRL.) NO. 82 OF 2021, OP(CRL.) NO. 92 OF 2021 &
consideration purposefully pursuant to a conspiracy are matters of evidence.
The basis of the contention of the learned ASG was that prosecution was
essentially relying on the materials gathered by the CBI to prove conspiracy
However, criminal liability can be fastened on the committee constituted for
the purpose of negotiation only if the following factors are established by the
prosecution; a)whether the committee was merely authorised to negotiate on
the rates but were also authorised to consider the feasibility of awarding the
contract to 10th accused? b). Whether the committee accepted the rates
offered without any materials to substantiate it, with the malafide intention to
help the 10th accused? c). Whether the action of committee members were
actuated by motives or were pursuant to a conspiracy with 10 th and 11th
accused ?. d). Whether the action of the subsequent committee in accepting
the tender of the 10th accused, after disqualifying other qualified tenderer was
in continuation of the action of the earlier negotiation committee and
pursuant to conspiracy entered into by all of them?
22. However, whether the remaining parameters which were not
considered and which formed part of the charge No.1 and whether it was a
mere negligence or whether it was purposefully omitted to be considered are
matters to be established heavily by the prosecution. Only then criminal
OP(CRL.) NO. 82 OF 2021, OP(CRL.) NO. 92 OF 2021 &
liability can be fastened on the accused. Merely because the petitioners had
entered into negotiation and had omitted to consider certain parameters or
facts or relevant materials by itself cannot fasten criminal liability on the
revision petitioners, unless the prosecution succeeds in establishing that it
was done as a part of larger conspiracy. It seems that the court below did not
consider the discharge application of the petitioners in the above perspective.
23. An offer of M/s.Ocean Dredging India was specifically rejected by
the Director Board after considering the fact that it was only a unsolicited offer
and the negotiation was an internal affair of the FACT. It was also mentioned
that the above company was floated by a former employee of the 10 th
accused. Hence,the liability of rejecting the application cannot be fastened
on the members of the negotiation committee.
24.The second part of the allegation which formed part of the subject
matter of charge No.8 onwards relate to the global tender floated by FACT. It
seems that a direction was issued by the Ministry to call for competitive bids
from experienced and reputed contractors in the field of water transportation
and award the contract to the party selected after following the normal tender
procedure. The allegation of the prosecution was that in the above tender a
new condition "previous experience of one year in transporting liquified
OP(CRL.) NO. 82 OF 2021, OP(CRL.) NO. 92 OF 2021 &
ammonia"which was not directed to be incorporated by the Ministry was
added at some point of time. It was alleged that this was specifically intended
to ensure that only the 10 th accused remained in the fray. The prosecution
has a contention that a committee was constituted by the CMD which
included the negotiation committee members as well as several other new
members. It was alleged by the prosecution that the new committee also
continued with the attempt made by the earlier committee to help and to
ensure that the 10th accused turned out to be the only bidder. Though the
tender was expected to be floated internationally, it was published only in few
Indian newspapers. It was further alleged that, though altogether ten
companies including the 10th accused had participated in the tender. Except
M/s. Nafthomar Company, all other companies were disqualified. Nafthomar
Shipping and Trading Company was a binami tender of the 10 th accused. All
other tenders were disqualified by the committee for one reason or other. It
was specifically alleged that three tenderers of major players viz.Great
Eastern Company, Mumbai, Kerala Shipping and Inland Navigation
Corporation, (a Government of Kerala Undertaking) and M/s. Goodwill
Engineering Works, Pondicherry, were rejected on the ground that they did
not have one year experience in water transportation of liquified gas. It was
OP(CRL.) NO. 82 OF 2021, OP(CRL.) NO. 92 OF 2021 &
also alleged that the tender of M/s.Ocean Dredging India Ltd.,
Udyogamandal, a company floated by a person who had three year
experience in water transportation of liquified ammonia was not accepted,
though the tender of allegedly benami company of the 10 th accused was
accepted. It was later proved that the earnest money for the above company
was arranged by the 11th accused, the managing director of the 10 the
accused company. There is a specific allegation that the tender of
M/s.Nafthomar company was defective also.
25. It seems that out of the ten companies, only three companies were
found to be qualified which included M/s.Nafthomar Shipping and Trading
Company. It seems to have been a decision taken by the committee
unanimously. It seems that for rejection of the tenders submitted by each of
the other companies, reasons have been given by the committee.
26.The contention of the learned counsel for the revision petitioners
was that,contrary to the allegation, the tender was an international tender
and publication was effected in Khaleej Times on 10/6/1996. It was also
stated that the matter was taken up by Indian Embassy at the Netherlands,
which ensured that copy of the advertisement was published in the
newspapers in that country and gave sufficient publicity. Accordingly, suitable
OP(CRL.) NO. 82 OF 2021, OP(CRL.) NO. 92 OF 2021 &
publicity was directed to be given in Holland through the Indian Embassy.
According to the revision petitioners, this ensured that it was a global tender,
though confined to UAE and the Netherlands.
27 .Whether this was sufficient and whether the reason stated by the
committee in its wisdom are sufficient for rejection of the remaining tenders
and whether it was purposefully done by the committee pursuant to a
conspiracy with the 10th accused are matters of evidence. Definitely to fasten
criminal liability on the committee of members, and also on the 14 th
accused,higher degree of evidence is required. The prosecution can
establish the liability only if the conspiracy angle is also proved. It seems
that the court below has not specifically considered whether prima facie
materials establishing conspiracy have been placed by prosecution.
28. An appreciation of the above facts show that, though the original
petitioners are sought to be implicated in the criminal offence on the alleged
conspircy entered into between accused Nos. 10 and 11 on one side and
other accused in the opposite side whether they had any criminal intention or
whether the acts done by them amounts to criminal conspiracy or was a
bona fide mistake, are matter which require cogent evidence. Same applies in
the case of accused NO.14. I feel that the court below while considering the
OP(CRL.) NO. 82 OF 2021, OP(CRL.) NO. 92 OF 2021 &
discharge applications of the original petitioners herein though have
specifically referred to few inferences in para 32, but it has not adverted to
the points raised in paras 16 to 26. In the case of the impugned order in
Crl.R.P.No.762/2014 also, court has not entered into the above. This has to
be evaluated in the light of the materials placed by the prosecution, however,
within the requirements of a discharge application. Since the entire materials
produced by the prosecution have not been made available, I am inclined to
set aside the impugned order. The impugned order in original petition is
composite one, dismissing all the discharge applications. Hence, the entire
order stands set aside. Impugned order in Crl.M.P.No.2000/2008 also stands
set aside. I am inclined to remand the matter for reconsideration of all
discharge applications already filed by the petitioners, in the light of the
materials placed. Considering the entire facts, court below shall take up
discharge applications without delay, at the earliest. With these observations,
original petitions and revision petition are allowed .
Sd/-
SUNIL THOMAS,Judge
dpk
OP(CRL.) NO. 82 OF 2021, OP(CRL.) NO. 92 OF 2021 &
APPENDIXOF OP(CRL.) 82/2021
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE FIR REGISTERED AS R.C.NO.13
(A)OF 2004(KER)DATED 27.05.2004 BY THE
CBI,KOCHI.
EXHIBIT P2 TRUE COPY OF THE FINAL REPORT DATED
16.12.2006 FILED BEFORE THE COURT OF THE
SPECIAL JUDGE SPE/CBI-II,ERNAKULAM REGISTERED
AS C.C.NO.15/2006.
EXHIBIT P3 TRUE COPY OF THE FINAL REPORT/CHARGE SHEET
NO.01/NICN/08/KER DATED 17.10.2008 FILED
BEFORE THE COURT AS A FRESH CHARGE SHEET.
EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED 21.05.1997 OF
THIS HON'BLE COURT IN O.P.NO.14761 OF 1996.
EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 18.12.2003 OF
THIS HON'BLE HIGH COURT IN O.P.NO.36403 OF
2001 AND O.P.NO.2375 OF 2002.
EXHIBIT P6 TRUE COPY OF THE WRITTEN STATEMENT WITH
AFFIDAVIT DATED 14.06.2007 FILED BY THE
PETITIONER AS DEFENDANT NO.3 IN O.S.NO.42 OF
2007 BEFORE THE SUBORDINATE JUDGES
COURT,NORTH PARAVUR
EXHIBIT P7 TRUE COPY OF THE VARIOUS STATEMENTS OF
CAPT.LIKHARI.
EXHIBIT P8 TRUE COPY OF THE LETTER DATED 10.02.1995
ISSUED BY THE PETITIONER'S GENERAL
MANAGER(SHIPPING)TO THE NAUTICAL ADVISOR OF
THE GOVERNMENT OF INDIA.
EXHIBIT P9 TRUE COPY OF THE LETTER DATED 13.02.1995
ISSUED BY THE PETITIONER'S GENERAL
MANAGER(SHIPPING)TO THE NAUTICAL ADVISOR OF
THE GOVERNMENT OF INDIA TO THE PETITIONER.
OP(CRL.) NO. 82 OF 2021, OP(CRL.) NO. 92 OF 2021 &
EXHIBIT P10 TRUE COPY OF THE WATER WAY NOTICE NO.1/1999
DATED 04.10.1999 ISSUED BY THE DIRECTOR OF
INLAND WATERWAYS AUTHORITY OF
INDIA(IWAI)UNDER THE MINISTRY OF SURFACE
TRANSPORT.
EXHIBIT P11 TRUE COPY OF THE WATER WAY NOTICE NO.4/2004
DATED 01.03.2004 ISSUED BY THE DIRECTOR OF
INLAND WATERWAYS AUTHORITY OF
INDIA(IWAI)UNDER THE MINISTRY OF SURFACE
TRANSPORT.
EXHIBIT P12 TRUE COPY OF THE LIST OF DOCUMENTS EXHIBITED
BY THE PETITIONER BEFORE THE HON'BLE
MR.JUSTICE K.T.THOMAS IN THE ARBITRATION
PROCEEDINGS.
EXHIBIT P13 TRUE COPY OF THE ORDER DATED 05.11.2012 OF
THE ARBITRATOR.
EXHIBIT P14 TRUE COPY OF THE ORDER DATED 12.04.2013 OF
THE DISTRICT JUDGE IN O.P.NO.1115/2012 FILED
BY FACT BEFORE THE DISTRICT COURT,ERNAKULAM
EXHIBIT P15 TRUE COPY OF THE ORDER DATED 03.12.2013
PASSED BY THIS HON'BLE COURT IN O.P.
(C)NO.3339/2013 FILED BY FACT.
EXHIBIT P16 TRUE COPY OF THE ORDER DATED 17.12.2013
PASSED BY THE HON'BLE SUPREME COURT OF INDIA
SLP(C)NO.038012/2013 FILED BY FACT.
EXHIBIT P17 TRUE COPY OF THE AWARD DATED 01.01.2014
PASSED BY HON'BLE MR.JUSTICE K.T.THOMAS.
EXHIBIT P18 TRUE COPY OF THE PROCEEDINGS IN
C.C.NO.15/2006.
EXHIBIT P19 TRUE COPY OF THE DISCHARGE PETITION IN
CRL.M.P.NO.494/2015 DATED 02.07.2015 FILED BY
THE PETITIONER IN C.C.NO.15/2006.
OP(CRL.) NO. 82 OF 2021, OP(CRL.) NO. 92 OF 2021 &
EXHIBIT P20 TRUE COPY OF THE COMMON ORDER DATED
30.10.2020 IN CRL.M.P.NO.495/2015 IN
C.C.NO.15/2006.
OP(CRL.) NO. 82 OF 2021, OP(CRL.) NO. 92 OF 2021 &
APPENDIX OF OP(CRL.) 92/2021
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE FIR REGISTERED AS RC NO. 13A
OF 2004 (KER) DATED 27/05/2004 BY THE CBI,
KOCHI.
EXHIBIT P2 TRUE COPY OF THE FINAL REPORT DATED
16.12.2006 FILED BEFORE THE COURT OF THE
SPECIAL JUDGE SPE/CBI-II, ERNAKULAM
REGISTERED AS CC NO. 15/2006.
EXHIBIT P3 TRUE COPY OF THE FINAL REPORT/CHARGE SHEET
NO.01/NICN.08/KER DATED 17/10/2008 FILED
BEFORE THE COURT AS A FRESH CHARGE SHEET.
EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED 21.05.1997 OF
THIS HON'BLE COURT IN OP NO. 14761 OF 1996.
EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 18/12/2003 OF
THIS HON'BLE HIGH COURT IN OP NO.36403 OF
2001 AND OP NO. 2375 OF 2002.
EXHIBIT P6 TRUE COPY OF THE WRITTEN STATEMENT WITH
AFFIDAVIT DATED 14.06.2007 FILED BY THE
PETITIONER AS DEFENDANT NO.3 IN OS NO. 42 OF
2007 BEFORE THE SUBORDINATE JUDGES COURT,
NORTH PARAVUR.
EXHIBIT P7 TRUE COPY OF THE VARIOUS STATEMENTS OF
CAPT.LIKHARI.
EXHIBIT P8 TRUE COPY OF THE LETTER DATED 10.02.1995
ISSUED BY THE PETITIONER'S GENERAL
MANAGER(SHIPPING) TO THE NAUTICAL ADVISOR OF
THE GOVERNMENT OF INDIA.
EXHIBIT P9 TRUE COPY OF THE LETTER DATED 13.02.1995
ISSUED BY THE CAPT. S.S. NAPHADE, NAUTICAL
ADVISOR OF THE GOVERNMENT OF INDIA TO THE
PETITIONER.
OP(CRL.) NO. 82 OF 2021, OP(CRL.) NO. 92 OF 2021 &
EXHIBIT P10 TRUE COPY OF THE WATER WAY NOTICE NO. 1/1999
DATED 04.10.1999 ISSUED BY THE DIRECTOR OF
INLAND WATERWAYS AUTHORITY OF INDIA (IWAI)
UNDER THE MINISTRY OF SURFACE TRANSPORT.
EXHIBIT P11 TRUE COPY OF THE WATER WAY NOTICE NO. 4/2004
DATED 01.03.2004 ISSUED BY THE DIRECTOR OF
INLAND WATERWAYS AUTHORITY OF INDIA(IWAI)
UNDER THE MINISTRY OF SURFACE TRANSPORT.
EXHIBIT P12 TRUE COPY OF THE LIST OF DOCUMENTS EXHIBITED
BY THE PETITIONER BEFORE THE HON'BLE
MR.JUSTICE K T THOMAS IN THE ARBITRATION
PROCEEDINGS.
EXHIBIT P13 TRUE COPY OF THE ORDER DATED 05.11.2012 OF
THE ARBITRATOR.
EXHIBIT P14 TRUE COPY OF THE ORDER DATED 12.04.2013 OF
THE DISTRICT JUDGE IN OP NO. 1115/2012 FILED
BY FACT BEFORE THE DISTRICT COURT, ERNAKULAM.
EXHIBIT P15 TRUE COPY OF THE ORDER DATED 03.12.2013
PASSED BY THIS HON'BLE COURT IN OP(C) NO.
3339/2013 FILED BY FACT.
EXHIBIT P16 TRUE COPY OF THE ORDER DATED 17/12/2013
PASSED BY THE HON'BLE SUPREME COURT OF INDIA
IN SLP(C) NO. 038012/2013 FILED BY FACT.
EXHIBIT P17 TRUE COPY OF THE AWARD DATED 01.01.2014
PASSED BY HON'BLE MR.JUSTICE K T THOMAS.
EXHIBIT P18 TRUE COPY OF THE PROCEEDINGS IN CC NO.
15/2006.
EXHIBIT P19 TRUE COPY OF THE DISCHARGE PETITION IN CRL MP
NO. 495/2015 DATED 02.07.2015 FILED BY THE
PETITIONER IN CC NO. 15/2006.
OP(CRL.) NO. 82 OF 2021, OP(CRL.) NO. 92 OF 2021 &
EXHIBIT P20 TRUE COPY OF THE COMMON ORDER DATED
30.10.2020 IN CRL MP NO.495/2015 IN CC NO.
15/2006.
OP(CRL.) NO. 82 OF 2021, OP(CRL.) NO. 92 OF 2021 &
APPENDIX OF CRL.REV.PET.NO.762 OF 2014
PETITIONER'S/S EXHIBITS:
ANNEXURE I COPY OF THE PETITION SUBMITTED UNDER SECTION
173(8) CR.P.C BY THE INVESTIGATING AGENCY.
ANNEXURE II COPY OF THE ORDER 28.08.2008 IN
CRL.M.P.NO.1442/2008 IN CC.NO.15/2006 PASSED
BY THE SPECIAL JUDGE (SPE/CBI)II, ERNAKULAM.
ANNEXURE III SERIES COPY EACH OF THE LETTER DATED 01.04.1996,
23.04.1996 AND 11.07.1996.
