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Jharkhand High Court · body

2014 DIGILAW 1112 (JHR)

Ajay Kumar v. State of Jharkhand through CBI

2014-11-14

R.R.PRASAD

body2014
Judgment : This application has been filed for quashing of the order dated 29.06.2010, passed by the Special Judge, CBI-cum-A.D.J.-I, Dhanbad in RC-6A/09/E, whereby and whereunder cognizance of the offences punishable under Section 120B read with Sections 420/468/471 of the Indian Penal Code and also under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 has been taken against the petitioner. 2. The case of the prosecution is that during year 2008, M/s Bokaro Steel Plant Limited (BSL) had purchased 1,69,000 MT of dolomite with silica content vide purchase order dated 30.01.2008 from M/s Dolomite Mining Corporation, Baradwar, Chhatisgard (M/s D.M.C.) at an exorbitant rate. Further, it has been alleged that M/s DMC in connivance with unknown officials of Bokaro Steel Plant and Public Analyst (M/s Superintendence Company India (P) Ltd., Katni) has dishonestly and fraudulently supplied dolomite claiming therein falsely on the basis of report of M/s Superintendence Company India (P) Ltd. the content of silica within the range of 1.5%, whereas the test, conducted by Research and Control Laboratory (R&C Lab), shows the content of silica far more than 1.5. Thus, it was alleged that the officials of Bokaro Steel Plant had dishonestly and knowingly accepted the sub-standard quality of dolomite and by abusing their official position allowed to make payment to the suppliers which caused huge loss to M/s Bokaro Steel Plant Ltd. 3. On such allegation, the case was registered and the matter was taken up for investigation. During investigation, it was found that on tender being floated for supply of dolomite, several bidders responded to it and submitted their quotations. M/s D.M.C. was found to be L-1. Accordingly, the purchase order dated 30.01.2008 for supply of 1,69,000 MT of dolomite was placed with M/s D.M.C. with stipulation on amongst others that the content of silica (SiO2) be there as 1.5%; maximum acceptable upto 2% with penalty. In response to that purchase order, M/s D.M.C. supplied 1,29,980 MT of dolomite along with purchase sample which was tested by M/s Bokaro Steel Plant Limited in R & C Lab. for determining silica content in dolomite. In response to that purchase order, M/s D.M.C. supplied 1,29,980 MT of dolomite along with purchase sample which was tested by M/s Bokaro Steel Plant Limited in R & C Lab. for determining silica content in dolomite. Upon various samples, which had been made available by the supplier when dolomite had been supplied, being tested by R & C Lab, it was found that silica content was in between 0.52% to 1.68%, whereas in the report of Public Analyst (M/s Superintendence Company India (P) Ltd.) silica has been shown 1.4% (average) and thereby it was found that the report of Public Analyst (M/s Superintendence Company India (P) Ltd.) has been manipulated. 4. During investigation, it was further found that as soon as dispatch material was received at M/s Bokaro Steel Plant Ltd., samples of it were taken and tested by R & C Lab. of M/s Bokaro Steel Plant Ltd. for determining the extent of silica content. Upon testing of said samples, it was found that the content of silica in dolomite was in between the range of 2.15% to 4.4.%. The said report was within the knowledge of the petitioner-Ajay Kumar, the then Sr. Manager (Raw Material Department), still he issued advice note to the finance department for making payment without imposing any penalty in terms of the penalty clause of the purchase order wherein it had been stipulated that the penalty at the rate of 2% for every 0.1% increase of silica be imposed in case of silica content is more than 1.5% upto 2%. Thus, it was found that M/s Bokaro Steel Plant Ltd. had made payment to M/s D.M.C. for supply of dolomite of 1,27,560.67 MT though silica content was more than 1.5% which was against the stipulation made in the purchase order. After completion of the investigation, charge-sheet was submitted against the petitioner and others upon which cognizance of the offences as aforesaid was taken against the petitioner vide order dated 29.06.2010 which is under challenge. 5. Mr. Pandey Neeraj Rai, learned counsel appearing for the petitioner, submits that the petitioner is being prosecuted on the accusation that while he was posted as Sr. 5. Mr. Pandey Neeraj Rai, learned counsel appearing for the petitioner, submits that the petitioner is being prosecuted on the accusation that while he was posted as Sr. Manager (Raw Material Department), he received dolomite, which was having silica content of more than 1.5%, still he forwarded the bills for its payment but that accusation in terms and conditions of supply order does not constitute any criminal act, as in the terms and conditions of the supply order, the petitioner on the basis of the report of Public Analyst, done at the receiving end, reporting therein that it contains more than 1.5% of silica content, is not supposed to stop payment, rather the payment can be stopped only when the Public Analyst at the end of loading point reports that it contains more than 1.5% of silica content which has never been the case of the prosecution, rather the case of the prosecution is that the Public Analyst, when did random analysis of the dolomite received at the receiving end, found that it contains more than 1.5% of silica which, as per the terms and conditions of the supply order, as has been stated above, cannot be subject matter of the prosecution and thereby the order taking cognizance being bad is fit to be set aside. 6. As against this, Mr. Mokhtar Khan, learned counsel for the CBI, submits that the petitioner had made recommendation for payment of dolomite which was supplied though it contained silica more than 1.5% whereas in other case, he made recommendation for imposing penalty when silica content was found more than 1.5% in dolomite. 7. It was further submitted that upon supply of dolomite when several samples, taken, were tested by R & C Lab. at Bokaro, content of silica was found in between the range 2.15% to 4.4%, knowledge of which the petitioner was having, still he did not impose any penalty though in terms of clause of supply order, the petitioner should have imposed the penalty. 8. In context of the submission, one needs to take notice of the relevant stipulation which has been made in the purchase order. One of such clauses relates to sample and analysis which reads as follows:- “i. Sampling & analysis shall be conducted at loading point by Public Analysts from the panel given by the purchaser. Cost of sampling & analysis to be born by the seller. One of such clauses relates to sample and analysis which reads as follows:- “i. Sampling & analysis shall be conducted at loading point by Public Analysts from the panel given by the purchaser. Cost of sampling & analysis to be born by the seller. ii. The purchaser will reserve the right to conduct periodic checks of sampling & analysis being done at loading point. Sampling & analysis shall be done as per Indian Standards. One composite sample shall be drawn for each lot upto 250 MT or less or 5 wagons or less, prior to the loading of wagons, for carrying out analysis as per PO specification. iii. The samples drawn shall be divided into three parts and sealed separately. The first part shall be taken by Public Analyst to conduct analysis, which will be considered final unless recourse is taken to Umpire Analysis. The second part will be sent to the purchaser by the seller, for carrying out test at their end. The third part will be preserved in the safe custody of Public Analyst for 90 days from the date of drawing of sample for Umpire Analyst. iv. There will be random check of material on receipt at Bokaro Steel Plant. Such check will be done in presence of Public Analyst and result of such check will be discussed with them. The result of such check will not be considered for rejection or stoppage of payment. v. However, in the event of continuous run of unsatisfactory report at Plant level checking and analysis and/or in case of adverse report of periodic checks being done at loading point, the PO will be short closed, based on the recommendation given by Indenting Department. One of the clauses is relating to the payment terms which reads as follows:- Payment Terms:- (A) For Materials :- 100% payment will be made within 30 (thirty) days after satisfactory receipt of material at SAIL/Bokaro Steel Plant. Another clause speaks about the specification and penalty:- Specification : CaO : 28 to 32% Minimum MgO : 20% Minimum SiO2 : 1.5% Maximum Penalty : SiO2 : 1.5% and up to 2%, penalty @ 2% for every 0.1% increase or part thereof. 9. Another clause speaks about the specification and penalty:- Specification : CaO : 28 to 32% Minimum MgO : 20% Minimum SiO2 : 1.5% Maximum Penalty : SiO2 : 1.5% and up to 2%, penalty @ 2% for every 0.1% increase or part thereof. 9. Learned counsel by referring to one of the clauses, mentioned above, relating to the random check at the receiving end, submits that the result of random check even if shows the content of silica more than 1.5%, the payment cannot be stopped nor the materials supplied can be rejected but the fact, which has emerged out during investigation, is that the dolomite was supplied with sample of it and also with report of the Public Analyst (M/s Superintendence Company India (P) Ltd.) showing content of silica less than 1.5%, but when the said sample, which had been sent along with the material supplied, was tested at the receiving end at Bokaro, content of silica was found in between 0.52 to 1.68%. However, when sample was collected from the material supplied and was tested by R & C Lab., content of silica was found 2.15% to 4.4%, whereas as per specification, the maximum content of silica should have been 1.5% though it was acceptable if the dolomite contains upto 2% but again as per stipulation made in the purchase order, if the content of silica exceeds 1.5% then the penalty was to be imposed which in the present case was not imposed even the petitioner, as per the case of the CBI, had knowledge that the report shows that the content of silica is within the range of 2.15% to 4.4%. 10. In that event, the submission, advanced on behalf of the petitioner to the effect that even if the report of the analyst at the receiving end shows silica content more than 1.5% payment was never required to be stopped nor penalty was to be imposed, is accepted, it shall render the aforesaid clause mentioned above as nugatory. Therefore, the proposition, which has been advanced on behalf of the petitioner, is not acceptable. 11. Under the circumstances, I do not find any illegality with the impugned order. Hence, this application stands dismissed. 12. However, before parting with this order, it be observed that any observation made hereinabove for the purpose of disposal of this case shall not be prejudicial to the case of the petitioner. 11. Under the circumstances, I do not find any illegality with the impugned order. Hence, this application stands dismissed. 12. However, before parting with this order, it be observed that any observation made hereinabove for the purpose of disposal of this case shall not be prejudicial to the case of the petitioner. Application dismissed.