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2017 Supreme(Gau) 1165
IN THE HIGH COURT OF GAUHATI
Paran Kumar Phukan, J.
D.A. Chansarkar and Ors. - Appellants
Vs.
Central Bureau of Investigation (C.B.I.) - Respondent
Criminal Appeal Nos. 38, 39 and 42 of 2005
Decided On : 29-08-2017
For the Appellant : J.C. Gaur
For the Respondents: S.C. Keyal
Headnote:
Indian Penal Code, 1860 –Section 120, 420, 468, 471 and 465 – Criminal Procedure Code, 1973 – Section 311, 294, 313, 215 and 464 – Power of – CBI – Pleaded not Guilty – Prosecution Case – Case against accused appellants came to be registered by the Superintendent of Police, ACU-1 New Delhi on basis of source information received by them to effect that accused appellant who were posted as Deputy Director, Supply and Transport Area Headquarter, Shillong and Commanding Officer, Advance Base Supply Depot respectively in collusion with other appellants who were army suppliers by corrupt and illegal means defrauded army by purchasing/supplying huge quantity of sub-standard butter at exorbitant prices – Held, Learned counsel appellants also argued by referring to judgment of Apex court to contend that where two views of a story appear to be probable one that was contended by accused should be accepted – Contended that suspicion, however, grave cannot be a substitute for proof – Arguments cannot be thrown out of consideration – Present case though prosecution alleged accused appellants violated codal provision but the appellants have offered explanation for each of circumstances appearing against them – Although they are suspected to have been involved but it is well settled that suspicion is not a substitute for proof explanations offered by them cannot be brushed aside and rejected – Appeal allowed.
Paran Kumar Phukan, J.
1. These 3 (three) appeals are preferred against the judgment and order dated 29.12.2004, passed by the learned Special Judge, (CBI), Guwahati Assam in Special Case No. 66/2004 convicting the accused appellant Brig. D.A. Chansarkar and Col. R.K. Khanna under Section 120B/420 and under Section 13(1) (d) read with Section 13(2) of the Prevention of Corruption Act, and the other two appellants under Section 120B/420/468/471/465 of the IPC and sentencing them to various terms of imprisonment and fine with default clauses.
2. The case against the accused appellants came to be registered by the Superintendent of Police, ACU-1 New Delhi on the basis of source information received by them to the effect that the accused appellant No. 1 an 2 (A1 and A2) who were posted as Deputy Director, Supply and Transport (DDST) 101 Area Headquarter, Shillong and Commanding Officer, Advance Base Supply Depot (ABSD), Guwahati respectively in collusion with the other appellants (A3, A4 and A5) who were army suppliers, by corrupt and illegal means, defrauded the army by purchasing/supplying huge quantity of sub-standard butter at exorbitant prices. On completion of investigation CBI submitted charge sheet against the accused appellants A1 and A2 under Section 120B/420 and Section 5(2) read with Section 5(1) (d) of the P.C. Act, 1947 and under Section 420/468/471 of the IPC against the suppliers Mohammad Ali (since deceased), Md. A. Khalleque and Md. Ayub (A3, A4 and A5 respectively) and forwarded them to face trial before the court.
3. Learned Special Judge, CBI framed charges against the appellant A1, A2 under Section 120B/420 of the IPC and section 13(2), read with Section 13(1) (d) of the P.C. Act and under Section 120/420/468/465/471 of the IPC against the other 3 appellants A3, A4 and A5. The appellants pleaded not guilty to the charges. The appellant Md. Ali (A4) died during the pendency of the trial and the case came to be abated against him.
4. The sum and substance of the prosecution case is that during the period from May, 1984 to May 1985 the appellants A1 and A2 entered into a criminal conspiracy with the other accused appellant A3, A4 and A5 to purchase butter for the army units at a very exorbitant price, which they were not authorized to do as it was a centrally procured item. The butter supplied was found to be unfit for human consumption. The entire procedure was done in total violation of the existing circulars by the competent authorities for illegal gain.
5. The accused appellant A1 and A2 admitted having purchased the butter from the other appellants but denied that it was procured at exorbitant price and according to them they followed all the rules and procedures. They also pleaded that under compelling circumstances the purchase was made at competitive price that too after inviting quotations. The other appellants who were the suppliers denied having supplied inferior quality butter and according to them since they were the lowest bidder, orders were placed with them to supply the butter.
6. Heard Mr. J.C. Gaur, learned counsel for the appellant in Crl. A. No. 38/2005, Mr. P. Katakey, learned counsel for the appellant in Crl.A. No. 39/2005 and Mr. Z. Kamar, learned counsel for the appellants in Crl.A. No. 42/2005. Also heard Mr. S.C. Keyal, learned counsel for the CBI.
7. Initiating the argument Mr. Gaur, learned counsel for A1 submits that A1 joined as DGST, 101 Area Headquarter, Shillong on 31.03.1984 and after joining his new assignment he found that though butter and some other articles were centrally procured articles but those were allowed to be purchased by ABSD, Guwahati for distribution in army units operating in North Eastern Region and this was done with the consent of DGST, Shillong. After his joining he continued the earlier practice and he was oblivious of the procedures followed by A2 as such there is no question of any criminal conspiracy by him to procure butter at exorbitant price. Mr.
