Back
IN THE HIGH COURT OF GAUHATI
Rumi Kumari Phukan, J.
Subal Kanta Borah - Appellant
Vs.
Central Bureau of Investigation CBI - Respondent
Criminal Appeal No. 49 of 2015
Decided On : 04-10-2018
The Court acquitted the appellants, who were public servants and a contractor, of charges of criminal misconduct and cheating related to the laying of optical fiber cables (OFC). The Court found that the prosecution failed to prove beyond a reasonable doubt that the appellants had obtained any valuable thing or pecuniary advantage by corrupt or illegal means, or that they had abused their positions as public servants to obtain such benefits.
Fact of the Case:
The appellants were accused of conspiring to inflate the cost of OFC laying work, resulting in excess payments to the contractor. The prosecution alleged that the appellants had approved tenders at exorbitant rates, deviated from the quantity of hard and rocky soil by increasing the same much more than the quantities indicated in the tenders, and deviated from the execution of quantities of works for soft soil by decreasing the same apparently to favor the contractors.
Finding of the Court:
The Court found that the prosecution's case was based primarily on a joint inspection report prepared by the investigating officer (IO) after more than 7 years of the execution of the OFC work. The Court held that the joint inspection report was not reliable as it was prepared without proper verification and without involving the maintenance organization responsible for the OFC.
Issues: 1. Whether the prosecution had proved beyond a reasonable doubt that the appellants had obtained any valuable thing or pecuniary advantage by corrupt or illegal means, or that they had abused their positions as public servants to obtain such benefits. 2. Whether the joint inspection report prepared by the IO was reliable and could be relied upon to prove the allegations against the appellants.
Ratio Decidendi: 1. The Court held that the prosecution had failed to prove beyond a reasonable doubt that the appellants had obtained any valuable thing or pecuniary advantage by corrupt or illegal means, or that they had abused their positions as public servants to obtain such benefits. The Court noted that the prosecution's case was based primarily on a joint inspection report prepared by the IO after more than 7 years of the execution of the OFC work, and that the report was not reliable as it was prepared without proper verification and without involving the maintenance organization responsible for the OFC. 2. The Court held that the joint inspection report prepared by the IO was not reliable and could not be relied upon to prove the allegations against the appellants. The Court noted that the report was prepared without proper verification and without involving the maintenance organization responsible for the OFC.
Final Decision: The Court acquitted the appellants of all charges.
Rumi Kumari Phukan, J.
As all the appeals arose from the same judgment in special case 9/2006 they are taken up together and being disposed with this common judgment.
Heard Mr. D. S. Choudhury, learned counsel for the appellants in Crl. Appeal 39/2015; Mr. B. M. Choudhury, learned counsel for the appellants in Crl. Appeal 40/2015 & Crl. Appeal 42/2015 as well as Mr. A.M. Bora, learned counsel for the appellant in Crl. Appeal 49/2015.
Also heard Mr. S. C. Keyal, learned standing counsel, CBI.
2. During 1995-96 the Department of Telecommunications, here-in-after called DoT, Government of India, decided to provide Optical Fibre Cable (OFC) Communication link on Imphal Moreh route in the state of Manipur. A survey of the route was conducted; a Project Estimate was prepared & sanctioned. The total route length of the section is 108 kms. which was divided into 27 sub-sections of 4 kms length each. The tenders were invited and the work was executed through contractors separately for each sub-section. The terms, conditions & specifications of work are mentioned in the tender document. The agreement was executed with the successful contractors. The over-all in-charge of the work was Divisional Engineer (DE) and the Government is represented by him. The Sub-Divisional Engineer represents the Government at the site of work. The JTO supervised the day to day work at site. The measurements were recorded by JTO in MB and bills were prepared by him. The cent percent work was checked by the Site Engineer (SDE). The bills were pre-checked by JAO, passed by the DE; counter signed by the Director and paid by the concerned Accounts Officer.
3. The depth and protection of the cable was verified as per route index diagram three times immediate after execution of the work. The cable was handed over to maintenance unit, coming to an end the responsibility of the OFC officials. After completion of trenching and laying of HDPE pipes in the year 1998, the route was given for acceptance testing in the year 1999. The route was found to be satisfactory.
4. As per the survey report, as the entire sub-section fell in the hilly and rocky area it is not possible to lay the cable at the standard department and hence the RCC protection had to be given over the cable. Hence acceptance testing of the OFC route had to be done by the T&D Circle. After successful completion of acceptance testing, the route was handed over to the Eastern Telecom Region for maintenance purposes.
5. An FIR was lodged by the Inspector of Police of the CBI, Silchar on 14.09.2001 to the effect that they got a reliable information that the accused public servants and different contractors while laying optic fibre cable which was awarded by the Divisional Engineer (OFC) to different contractors during 1995-96 for execution in different subsections of the Imphal-Moreh route by paying excess amount to those contractors against approved rates and the tendered quantities of the work. The excess payments were made on account of deviations and in quantity of works and increase in the quantity of the works including unauthorized payment against some items which were not tendered.
6. It is alleged that appellants while working in their respective capacities by abusing their official position and in connivance with the other officials and the contractor/the appellant in criminal appeal 49/2015 (the appellant S. K. Borah was awarded the contract to execute the OFC laying in respect of SS 1 of Imphal Moreh route) thereby caused undue loss to the exchequer by committing the following omissions and commissions.
(1) Approval of tenders at exorbitant rates much higher than the estimated rates.
(2) Deviations in the quantity of hard and rocky soil by increasing the same much more than the quantities indicated in the tenders, certifying the execution of increased quantities and causing payments accordingly by passing the questioned bills, apparently because the rates for these items were much higher than the
AI
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
