1996 Supreme(SC) 720

1996(3) Supreme 301
SUPREME COURT OF INDIA
G.N. Ray and B.L. Hansaria, JJ.
Ghulam Din Buch etc. etc. -Appellants
versus
State of Jammu & Kashmir -Respondent
Criminal Appeal No. 521 of 1981
(With Crl. A. Nos. 522 to 530 of 1981)
Decided on 3-4-1996

Headnote:(i) Ranbir Penal Code-Section 120B-(J&K) Prevention of Corruption Act, 2006-Section 5(2)-Convictions under-Appeal-Project of electrifiction of tehsils of Leh and Kargil under Rural Electrification Scheme-Complaints regarding giving of contract of transportation of poles to private firms-Alleged conspiracy resulting in loss to State Exchequer and wrongful gain to State officials-Loading and unloading charges fixed were not reasonable-No efforts made by concerned officers to get Government vehicles-Notice Inviting Tender came to be issued as pre-arranged-Notice issued to selected persons-Prior understanding to share extra profits with officials by allowing carriage per pole per k.m. basis-Motive in allowing carriage of poles beyond what was strictly needed-Appellants, the then Executive Engineer and Assistant Engineer rightly convicted-Sentence of RI for two months with fine of Rs. 15,000/-.

       Held : They played key role in giving of the contracts and formed the inner circle of the conspiracy. There can also be no doubt in view of what has already been held that their actions were actuated by ill motive, and the same was not inspired to get the poles at Leh to see that the electrification scheme gets shape before winter sets in. Apart from what has already been mentioned about the tainted steps taken by them, Shri Handoo has brought to our notice another facet of the case, which was to get transported about 10,000 number of poles as against the need of about 4,700. The NIT itself had specified this number as about 6,000. (Para 23)

       Having found that the rate at which the poles were agreed to be carried were unreasonable, we read motive in allowing carriage of poles beyond what was strictly needed. The greater the number of poles carried, the higher would be amount which would become payable to the contractors because of the rate being per pole; and the high profit would benefit the appellants also. (Para 25)

       As the undertaking given to the aforesaid two contractors that they would be allowed to carry poles at the lowest tendered rates followed by how the NIT was issued and what happened thereafter, there can be no dispute that the public servants in question did abuse their position. It so deserves to be noted that clause (d) does not speak only about "corrupt or illegal means" but also takes within its fold obtaining by public servant for himself or for any other person any pecuniary advantage "otherwise" as well. (Para 26)

       Then held : It would be too harsh to award even the minimum punishment at this length of time keeping in view the hardship already undergone and the amount which the State had ultimately to lose because of the conspiracy - the same being a sum of Rs. 1,62,117.89. As about two decades have passed since the commission of the offence and as during the interregnum the appellants had undoubtedly suffered in body and mind, according to us, it is a fit case where the proviso to sub-section (2) of Section 5 of the Act should be invoked which states that for special reasons recorded in writing, the court may refrain from imposing a sentence of imprisonment or impose a sentence of imprisonment of less than one year. Though the proviso permits not to impose a sentence of imprisonment at all and confine the sentence to fine only, we do not think if present is a case where the punishment to be awarded should be only fine, as any softness in this regard could produce an undesirable result, namely, encouragement to adoption of corruption means by public servants which has indeed to be checked, and not allow to be encouraged. Keeping in view all the attending circumstances, we are of the view that a sentence of RI for two months would be adequate sentence, apart from the fine of Rs. 15,000/-. (Para 28)

       (ii) Ranbir Penal Code, 1860-Section 120-B-(J&K) Prevention of Corruption Act, 2006-Section 5(2)-Conviction under-Appeal-Project of electrification of tehsils of Leh and Kargil-Alleged conspiracy of giving of contract of transportation to non-transporters-Loss to State Exchequer-Appellants being Assistant Engineer and Sectional Officer in office of Chief Engineer-Their apparent complicity in recommending acceptance of rates, characterising the same as justified-Omission to make enquiries and having acted against accepted norms-Acquittal of Chief Engineer not challenged-Appellants rightly found guilty-Sentence of imprisonment for two months with fine of Rs. 3000/- on each of appellants.

       Held : There was no occasion for hurry at that stage inasmuch as transport of the bamboo poles had almost been completed and what remained to be done was only the payment. Secondly, the note discloses that these appellants knew that the cost of carriage per pole even as per the lowest tenders would be Rs. 144.60. This must have shocked their conscience and they must have tried to know what could have been the cost of poles were carried, not on the basis of per km. per pole, but as per truck loads. Sitting in the office of the Chief Engineer it would not have been difficult for these officers to find out the rate either of the RTC or private carriers. The omission to make these inquiries stares one at the face and so they were rightly prosecuted and ultimately convicted, because of their apparent complicity in recommending the acceptance of the rates, characterising the same as justified. (Para 38)

       (iii) Ranbir Penal Code-Section 120B-(J&K) Prevention of Corruption Act, 2006-Conviction under-Appeal-Project of electrification of tehsils of Leh and Kargil-Alleged conspiracy in giving contract of transport of poles-Role of Passing Officers-Appellants passed poles below specification inasmuch as poles below length of 20ft allowed to be transported-No financial loss on this count caused to State-Appellants liable to be acquitted.

       Held : That though these three appellants had sought to assist the carriers to cause wrongful gain to them by allowing transportation of poles below 20 feet, ultimately no financial loss on this count was caused to the State because the carriers had not been paid for poles carried by them which were below 20 feet. We are, therefore, of the view that these appellants also deserve to be acquitted, as were some of the Field Officers, who had accepted the undersized pole at the receiving point had been acquitted by the High Court. May it be mentioned that the High Court had acquitted the Field Officers mainly because of acquittal of the supplier, namely, Mustaq & Company, by the trial court against which no appeal had been filed. The High Court observed that if no offence had been committed by the supplier on this score, the persons who had received those poles cannot be faulted with. We would say the same qua these three appellants. (Para 46)

       (iv) Conspiracy-Project of electrification--Conviction of contractors-No charge of conspiracy inter-se between contractors-Close inter-relationship between these three firms and all of them had acted in concert-Non-providing of opportunity to appellant H to explain circumstances coming on record-His conviction set aside-Conviction of appellant sustained-Sentence of RI for one month. (Para 54)

       (v) Conspiracy-Project of electrification-Conspiracy of giving contract of transport to private firm-Unreasonable rates-No doubt about the involvement of firms whose tender being lowest was accepted-Conviction of partners of such firms sustained.

       Held : That the contract given to the firm of these appellants was as per pre-arranged plan and the same was given to them to enable them to earn extra profit for appropriate sharing afterwards. (Para 57)