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2017 DIGILAW 163 (ORI)

Mayadhar Panigrahi v. State of Orissa (Vig)

2017-02-14

S.K.SAHOO

body2017
JUDGMENT : S.K. Sahoo, J. The petitioner Mayadhar Panigrahi who was the Project Director of Odisha Health System Development Project (hereafter for short ‘OHSDP’) has challenged the impugned order dated 30.05.2016 passed by learned Addl. Special Judge (Vigilance), Bhubaneswar in T.R. No.42 of 2010 in rejecting the petition under section 239 of Cr.P.C. filed by the petitioner for discharge. The said case arises out of Bhubaneswar Vigilance P.S. Case No.28 of 2008 in which charge sheet has been submitted under section 13(2) read with section 13(1)(d) of the Prevention of Corruption Act, 1988 and section 420 read with section 120-B of the Indian Penal Code. 2. On 30.06.2008 Shri G.R. Mohanty, Deputy Superintendent of Police, Vigilance Cell Unit, Bhubaneswar submitted the first information report before the Superintendent of Police, Vigilance, Bhubaneswar Division, Bhubaneswar stating therein that in connection with the irregularity committed in the implementation of ‘OHSDP’, a World Bank assisted project pertaining to supply of drug and medical consumable, an inquiry was taken up and during course of inquiry, it was revealed that on 21.08.2004, the petitioner as Project Director of OHSDP invited National Competitive Bids (NCB) for forty-two types of drugs and ten types of medical consumables. In response to the notice inviting tender, sixty-four tenders were received. The tenders were placed before the Bid Evaluation Committee (BEC) consisting of Director, Health Services, Director, Medical Education and Training, Director, Family Welfare, Asst. Drug Controller, Asst. Director, EPM, Dy. Director, SDMU, Joint Director and Asst. Director of OHSDP on 22.12.2004. Out of forty-two nos. of drugs and ten nos. of medical consumables, the BEC selected twenty-four nos. of drugs and eight nos. of medical consumables. Among the rejected items, Gamma Benzene Hexa Chloride was one, as BEC found bids of all the four bidders to be non-responsive and the comparative statement of the bids for the said item was as follows:- 1. M/s. Trimurty Chemicals, Cuttack Rs.14,13,120.00 (L-1) 2. M/s. Daffodils Pharmaceuticals Ltd., Meerut Rs.46,08,000.00 (L-2) 3. M/s. Glenmark Pharmaceuticals Ltd., Nasik Rs.57,60,000.00 (L-3) 4. M/s. Nicholas Piramal India Ltd. Rs.74,84,160.00 (L-4) The file on the recommendations of BEC was sent to the Minister of Health, Orissa on 19.01.2005 for approval. M/s. Trimurty Chemicals, Cuttack Rs.14,13,120.00 (L-1) 2. M/s. Daffodils Pharmaceuticals Ltd., Meerut Rs.46,08,000.00 (L-2) 3. M/s. Glenmark Pharmaceuticals Ltd., Nasik Rs.57,60,000.00 (L-3) 4. M/s. Nicholas Piramal India Ltd. Rs.74,84,160.00 (L-4) The file on the recommendations of BEC was sent to the Minister of Health, Orissa on 19.01.2005 for approval. M/s. Glenmark Pharmaceuticals submitted a letter to the Minister of Health for consideration of their tender on the strength of documents submitted after the bid evaluation and the same letter was sent to the petitioner by the Minister of Health for consideration on 04.02.2005. In violation of the terms and conditions of the bid document, Dr. Sugat Kar, Jt. Director, OHSDP who was the Convener of the BEC has shown to have issued letters specifically to two firms namely M/s. Glenmark Pharmaceuticals Ltd. and M/s. Daffodils Pharmaceuticals Ltd. for submitting additional documents. It is further stated that the OHSDP officials cleared the matter by fabricating records in favour of M/s. Glenmark Pharmaceuticals Ltd. and the same was placed before BEC on 26.05.2005 and finally the higher rate of Rs.300/-per unit (each unit containing 20 bottles of 100 ml.) against the lowest rate of Rs.73.60 paisa per unit was approved and the order was placed with the firm M/s. Glenmark Pharmaceuticals Ltd. vide No.WC0176 5202 dtd. 21.06.2005. The firm supplied 19,200 Units (3,84,000 bottles) and received payment of Rs.59,44,370/-(the cost being Rs.57,56,058/-) as a result of which the Govt. has sustained loss of 43,46,880/-by discarding the L-1 tender in violating the norms and procedure of the rules as well as the guidelines adopted in the OHSDP purchase matters. L-1 M/s. Trimurty Chemicals was considered non-responsive due to want of WHO-GMP certificate. It is further stated in the F.I.R. that M/s. Trimurty Chemicals being an ISO 2000 GMP certificate holder had supplied 1,32,380 bottles of Gamma Benzene Hexa Chloride @ Rs.2.73 per bottle of 100 ml. total amounting to Rs.3,63,780/-to the Health Department and the officials like Director of Health Services, Orissa as well as the members of the BEC had approved the same item with much lower rate during the relevant period of 2004-05 but in the instant case, the officials incurred the huge loss of Rs.43,46,880/-to the Govt. of Orissa which is consequent wrongful gain to M/s. Glenmark Pharmaceuticals Ltd. owing to the approval of higher rate of Rs.300/-against the lower rate of Rs.73.60p per unit. of Orissa which is consequent wrongful gain to M/s. Glenmark Pharmaceuticals Ltd. owing to the approval of higher rate of Rs.300/-against the lower rate of Rs.73.60p per unit. It is stated that as per the conditions of the bid documents cited at Para 29.3 & 29.4, once non-responsive bids may not subsequently be made responsive and bid’s responsiveness is to be based on the contents of the bid itself without recourse to extrinsic evidence. It is further stated in the first information report that the petitioner as Project Director, Dr. Sugat Kar, Jt. Director, Dr. Taramani Pattnaik, Asst. Director, all of OHSDP with other public servants have approved the higher rate and have shown favour to the supplier causing a loss of Rs.43,46,880/-, entered into criminal conspiracy with M/s. Glenmark Pharmaceuticals Ltd. and have abused their official position in violation of the terms and conditions of the bid documents, rules, procedures and fabricated the records in favour of the supplier to derive pecuniary advantage. 3. On the basis of such first information report, Bhubaneswar Vigilance P.S. Case No.28 of 2008 was registered under section 13(2) read with section 13(1)(d) of the Prevention of Corruption Act and sections 420/120-B of the Indian Penal Code. During course of investigation, it was found that the petitioner as the Project Director of OHSDP published World Bank funded National Competitive Bidding Tender No. WB/OHSDP/04-05/D-06 dtd. 30.08.2004 for the procurement of forty-two nos. of drugs and ten nos. of medical consumables including the alleged drug code No.D-18002 Gamma Benzene Hexa Chloride + Cetrimide with specification GBH 1% w/v + Cetrimide, strength 0.1% w/v and unit pack 100ml/Bottle, 20 bottles/Box, which was widely published through local and national news papers. In response to the said tender, four bidders had submitted their bid papers addressing to the Project Director, OHSDP for the supply of Gamma Benzene Hexa Chloride + Cetrimide. As per their quoted rates during bid opening, M/s. Trimurty Chemicals, Cuttack, M/s. Daffodils Pharmaceuticals, Meerut, M/s. Glenmark Pharmaceuticals, Mumbai and M/s. Nicolas Pharmaceuticals, Mumbai were placed as L-1, L-2, L-3 and L-4 respectively. It was also found during investigation that the petitioner formed a Bid Evaluation Committee consisting Dr. P.K. Senapati as convener and other members namely Dr. S.C. Mohapatra, DMET, Dr. B.K. Das, DFW, Dr. N.C. Samal, Asst. Drug Controller, Dr. J.C. Acharya, Jt. Director, Health Service (Medical), Dr. S. Kar, Jt. Director, OHSDP, Dr. It was also found during investigation that the petitioner formed a Bid Evaluation Committee consisting Dr. P.K. Senapati as convener and other members namely Dr. S.C. Mohapatra, DMET, Dr. B.K. Das, DFW, Dr. N.C. Samal, Asst. Drug Controller, Dr. J.C. Acharya, Jt. Director, Health Service (Medical), Dr. S. Kar, Jt. Director, OHSDP, Dr. A.K. Harichandan, Dy. Director, SDMU, Dr. Taramani Pattnaik, Asst. Director, OHSDP and Dr. L.D. Pradhan, MO O/o SDMU. On 22.12.2004 the said Committee evaluated the bids of four bidders and rejected all the four bids on the ground that they did not qualify the criteria prescribed in the World Bank Tender Condition. The Committee found that the L-1 bidder M/s. Trimurty Chemicals, Cuttack did not supply performance value of the Company, L-3 accused firm M/s. Glenmark Pharmaceutical Ltd. was rejected as it submitted Drug License for aqua cense against the requirement of Cetrimide and the L-4 firm was rejected for not furnishing performance value. As per the World Bank tender condition vide Clause nos. 29.3 & 29.4, if the bid was not found substantially responsive, it will be rejected and may not be made responsive by correction of non-conformity. After the bid evaluation was over, Sri A. G. Prasad, Dy. General Manager, Institutional Sales, M/s. Glenmark Pharmaceuticals Ltd. sent a fax message dtd. 04.02.2005 requesting therein to give chance for submitting additional document, if the tender was short of any document and to consider his bid. This letter was acknowledged by Dr. Sugat Kar and Dr. Taramani Pattnaik, Asst. Director, OHSDP on 10.02.2005. Dr. Taramani Pattnaik, Asst. Director, Dr. Sugat Kar, Joint Director and the petitioner, all of OHSDP without mentioning the World Bank tender condition recommended that M/s. Glenmark Pharmaceutical Ltd. may be asked to submit the required deficient document and may be placed before the Evaluation Committee for consideration. Dr. Sugat Kar, Joint Director, OHSDP asked M/s. Glenmark Pharmaceuticals Ltd. (L-3) to submit the manufacturing license in letter No.1302/OHSDP II-9/03-04 dt. 23.02.05. All of them intentionally did not issue any letter to L-1 firms M/s. Trimurty Chemicals, Cuttack and have discriminately shown to have issued two letters specifically to two numbers of firms instead of all the four firms. It was also found during investigation that after obtaining fresh drug license from the accused firm M/s. Glenmark Pharmaceuticals Ltd., the petitioner recommended the matter for evaluation before the same Committee. Dr. Prasanta Ku. It was also found during investigation that after obtaining fresh drug license from the accused firm M/s. Glenmark Pharmaceuticals Ltd., the petitioner recommended the matter for evaluation before the same Committee. Dr. Prasanta Ku. Senapati, Director, Health Service was the convener of the Committee and Dr. Bijayanand Mohanty, Dy. Director, SDMU along with Dr. Sugar Kar and Dr. Taramani Pattnaik were the other members of the said Committee. All of them were aware about the tender condition that accused L-3 firm cannot be considered on the basis of fresh documents. Dr. Senapati, Director, Health Service and Dr. Bijayanand Mohanty, Dy. Director, SDMU were aware that M/s. Trimurty Chemicals, Cuttack had supplied the same drug to all Govt. hospitals in the DHS Tender through SDMU having valid drug license during the relevant period. They were also aware that the same L-1 firm had offered the same drug having same specification in World Bank Tender for supply to the same govt. hospitals @ Rs.3.68 per bottle whereas the accused L-3 bidder offered Rs.15/-per bottle. Dr. Prasanta Ku. Senapati, Dr. Bijayanand Mohanty, Dr. Sugat Kar and Dr. Taramani Pattnaik having aware of the World Bank tender recommended the bid of L-3 accused firm at a higher rate. Other Committee members were not aware of the previous supply of the same drug by L-1 bidder M/s Trimurty Chemicals, Cuttack, hence were held by the Investigating Officer to be not liable. On the said recommendation of BEC, the petitioner issued the order for the procurement of 3,80,000 bottles of Gamma Benzene Hexa Chiroride + Cetrimide @ Rs.15/-per bottle from the accused firm M/s. Glenmark Pharmaceuticals Ltd., ignoring the lowest rate of L-1 bidder M/s. Trimurty Chemicals, Cuttack and thereby causing pecuniary loss of Rs.11.32 per bottle to the Government since the Government had made a loan agreement with the World Bank and was obliged to pay back the money to the World Bank. In the whole process, the petitioner approved the payment of Rs.57,60,000/-to the accused firm, as a result of which an amount of Rs.43,46,880/-was paid in excess in comparison to the rate of L-1 bidder, which was wrongful loss to the Govt. of Odisha. The investigating officer considering the facts and circumstances was of the view that prima facie case is well made out against the petitioner as well as Dr. Sugat Kar, Joint Director, Dr. Taramani Pattnaik, Asst. of Odisha. The investigating officer considering the facts and circumstances was of the view that prima facie case is well made out against the petitioner as well as Dr. Sugat Kar, Joint Director, Dr. Taramani Pattnaik, Asst. Director, all retired officers of OHSDP, Dr. Prasanta Ku. Senapati, retired Director of Health Service, Dr. Bijayananda Mohanty, retired Dy. Director, State Drug and Management Unit and Sh. A.G. Prasad, Dy. GM representing M/s. Glenmark Pharmaceutical Ltd. and accordingly, submitted charge sheet on 30.06.2010 under section 13(2) read with section 13(1)(d) of Prevention of Corruption Act, 1988 and sections 420/120-B of the Indian Penal Code. 4. The petitioner filed a petition under section 239 of Cr.P.C. for discharge before the learned Trial Court on the ground that he is not the sole authority to decide the bid of the tender and regarding the selection of medicine to be purchased for the purpose of OHSDP rather a purchase committee was formed and the World Bank norm have been complied with and after thorough scrutiny, the medicines were purchased. It was further argued that there was no deviation nor there was any criminal conspiracy and in due discharge of his public duty, the petitioner had acted in a bonafide manner. The petitioner also filed several documents with a memo regarding the principle to be observed for the selection of the bid process. The learned Trial Court on consideration of the materials on record and the documents submitted by the prosecution and the xerox copies of the documents filed by the petitioner in support of his petition has been pleased to hold that the petitioner had taken the help of documents filed on his behalf to disbelieve the prosecution case and contents of such documents were to be considered strictly during trial when the petitioner would enter into his defence and as strict proof is required to prove the contents of such documents, therefore, it was not possible on his part to act on those documents filed by the petitioner and taking into account the dictum laid down by Hon’ble Supreme Court in case of State of Himachal Pradesh Vs. Krishanlal reported in AIR 1987 SC 773, the learned Trial Court rejected the petition filed by the petitioner under section 239 of Cr.P.C. 5. Learned counsel for the petitioner Mr. Krishanlal reported in AIR 1987 SC 773, the learned Trial Court rejected the petition filed by the petitioner under section 239 of Cr.P.C. 5. Learned counsel for the petitioner Mr. D.P. Dhal contended that the prosecution case that the petitioner in contravention of Government instructions constituted a new Bid Evaluation Committee (BEC) is completely false and baseless. The Government had constituted the BEC for procurement of drugs and medical consumables by OHSDP, wherein the Joint Director, OHSDP was the Convener. The Government had also constituted a technical committee for procurement of drugs and medical consumables for all Government Hospitals in the State by State Drugs Management Unit (SDMU) as the drugs and medical consumables for the hospital under OHSDP are procured through SDMU for the Government of Odisha. The members of BEC for OHSDP and Technical Committee (SDMU) were invited by the Joint Director, OHSDP for evaluation of the bids of OHSDP. It was contended that though Financial Advisor was a member of the BEC but he remained absent on the relevant date for the reasons best known to him. It is contended by Mr. Dhal that as per Clause 29.2 of the Bid document, the purchaser may waive any minor infirmity, non-conformity or irregularity in a bid that does not constitute a material deviation, provided such waiver does not prejudice or affect the relative ranking of any bidder. He contended that the bidder M/s. Glenmark Pharmaceuticals Ltd. represented to the Hon’ble Minister, Health to give them a chance to submit the wanting document and the Minister forwarded their application to the petitioner for consideration. Though previously all the four bids were rejected on the recommendation of BEC and the same was approved by the Government on 22.02.2005 but after getting the application of the above bidder with marginal orders of the Minister on it, the matter was reopened and the Government order was taken on the note of the petitioner to ask the L-2 and L-3 bidder (in connection with minor deficiency/infirmity which does not constitute a material deviation) to submit their documents and no such offer was given to the L-1 and L-4 as they were substantially non-responsible bidders having material deviation. It is contended that on previous occasion during procurement of ARV Injection, Government had also waived such minor deficiency and asked for the additional documents from the non-responsive bidders having minor deficiencies. It is contended that on previous occasion during procurement of ARV Injection, Government had also waived such minor deficiency and asked for the additional documents from the non-responsive bidders having minor deficiencies. With regard to the wrong and misleading note-sheet of the petitioner, the learned counsel for the petitioner contended that the word “they” has been used for M/s. Glenmark Pharmaceuticals Ltd. as it is a private limited company and it is always plural. It is clearly mentioned in the last line to ask the L-2 bidder along with the applicant (L-3 bidder) to submit wanting documents. The recommendation of the BEC was approved by the Principal Secretary to Government, H and F.W. Department and also by the Minister, Health. It is contended that provisions of World Bank tender conditions were earlier pointed out to the Government in case of procurement of ARV Injection which are available in the note sheet of Joint Director, OHSDP and note of the petitioner dtd. 18.01.2005 and note sheet page 31 and 33/N of the same file which was not verified during investigation. It is contended that the Hon’ble Minister, Health vide his Order dtd. 01.02.2005 at page 34/N of the same file passed orders to obtain additional documents on performance of non-responsive bidders with minor deviation and therefore, there was no need to repeat the same in subsequent procurement. Neither the Joint Director, OHSDP nor the member of BEC who are all technical persons have mentioned about provisions in paragraphs-29.3 and 29.4 of the bid document in the proceedings of BEC sent to the petitioner. The members of BEC of OHSDP and Technical Committee of SDMU are all technical persons and they must have verified all the tender conditions before recommending a bid as the lowest responsive bid. The file was put up before the petitioner on 28.05.2005 by Joint Director, OHSDP, as OHSDP Project period was to be closed in the month of March 2006. The petitioner submitted the file to the Govt. on the same day i.e. 28.05.2005. It is contended that there was no question of showing any favour to any bidder nor there was any criminal intention on the part of the petitioner to conspire with any bidder. As L-1 and L-4 were substantially non-responsive bidders having material deviation, Government Order was taken to ask the L-2 and L-3 to submit their wanting documents as they had minor deficiencies. As L-1 and L-4 were substantially non-responsive bidders having material deviation, Government Order was taken to ask the L-2 and L-3 to submit their wanting documents as they had minor deficiencies. Learned counsel for the petitioner contended that the L-1 Bidder M/s. Trimurti Chemicals, Cuttack was a non-responsive bidder as they do not have WHO-GMP Certification as per World Bank guidelines and therefore, the calculation of so-called loss to the Government by comparing the rates quoted by the non-responsive L-1 bidder with the rate quoted by the lowest responsive bidder confirming to World Bank norms and approved by the Govt. is nothing but fanciful and without any just and proper cause. It is further contended that the World Bank post Review Team and the Auditor, A.G., Odisha had verified/audited the procurement of Gamma Benzene Hexa Chloride by OHSDP through the NCB Tender and raised no objection which would be clear from Annexure-11 and 12. It was contended that the World Bank had also reimbursed their proportionate share to State Government. It is contended that no favour was shown to M/s. Glenmark Pharmaceuticals Pvt. Ltd. who was L-3 and M/s. Trimurty Chemicals who was L-1 might have supplied the same medicine earlier but that was under DHS not under NCB floated by the World Bank. When the company had no basic criteria to qualify for the tender, calculating the loss basing upon the offer given by the said Company is nothing but an attempt to harass the Government officials like the petitioner who have done their duty to the best of their ability and for which the sponsoring authority has accepted the same and the audit conducted by the A.G. Odisha has also approved the same. Learned counsel contended that basing upon the representation of M/s. Trimurti Chemicals (L-1 bidder), a reference was made to the World Bank but the World Bank clarified that the WHOGMP Certification is the minimum requirement for tender to become responsive. The learned counsel for the petitioner placed reliance in the cases of Rukmini Narvekar Vs. Vijaya Sardekar reported in (2008) 41 OCrR(SC) 853 and Rajiv Thapper Vs. Madanlal reported in (2013) 3 SCC 330 . It is contended that submission of chargesheet against the petitioner is a total non-application of mind by the investigating officer and it is a fit case to discharge the petitioner and therefore, the impugned order should be quashed. 6. Mr. Vijaya Sardekar reported in (2008) 41 OCrR(SC) 853 and Rajiv Thapper Vs. Madanlal reported in (2013) 3 SCC 330 . It is contended that submission of chargesheet against the petitioner is a total non-application of mind by the investigating officer and it is a fit case to discharge the petitioner and therefore, the impugned order should be quashed. 6. Mr. Sangram Das, learned Standing Counsel for the Vigilance Department on the other hand contended that the petitioner in contravention of the Government instructions constituted a Bid Evaluation Committee which did not include the Financial Advisor as a member of the Committee. The Bid Evaluation Committee evaluated the bids of all the four bidders and rejected all of them on the ground that they did not qualify the criteria prescribed in the World Bank tender conditions. The Committee found that L-1 bidder M/s. Trimurti Chemicals, Cuttack did not furnish WHO-GMP Certificate as per World Bank guideline, L-2 bidder M/s. Daffodils Pharmaceuticals Ltd. did not having performance value of the Company, L-3 accused firm M/s. Glenmark Pharmaceutical Ltd. submitted drug license for aqua cense against the requirement of submitting drug license with respect to Gamma Benzene Hexa Chloride + Cetrimide and L-4 firm M/s. Nicholas Piramal India Ltd. did not furnish performance value and accordingly, the decision of the Committee was communicated to the Government. Learned Standing Counsel for the Vigilance Department placed Clause 29.4 of the World Bank tender conditions and contended that once the bidder was declared non-responsive, it cannot be made responsive at the subsequent stage. The relevant clause is quoted herein below:- “29.4. If a bid is not substantially responsive, it will be rejected by the Purchaser and may not subsequently be made responsive by the Bidder by correction of the non-conformity. The Purchaser’s determination of a bid’s responsiveness is to be based on the contents of the bid itself without recourse to extrinsic evidence.” It is further contended that ‘minor irregularity’ as appears in Para 29.2 cannot and shall not be equated with the same meaning of ‘material deviation’ as appears in Para 29.3. After the bid evaluation was over, Mr. A.G. Prasad, the Deputy General Manager of M/s. Glenmark Pharmaceutical Ltd. sent a fax message dtd. After the bid evaluation was over, Mr. A.G. Prasad, the Deputy General Manager of M/s. Glenmark Pharmaceutical Ltd. sent a fax message dtd. 04.02.2005 to the Hon’ble Minister of Health & Family Welfare requesting therein to give them a chance for submitting additional document, if it was short of any document and to consider his bid. On 05.02.2005 the Hon’ble Minister, Health & Family Welfare returned the file to the petitioner enclosing the Fax message dtd. 04.02.2005 for consideration. It is contended that the Hon’ble Minister did not pass any specific order on the body of the letter dtd. 04.02.2005 either to consider in favour of the non-responsive (L-3) firm or to ask the said Company to submit fresh documents. On 21.02.2005 Dr. Taramani Patnaik, A.D., OHSDP gave the noting in the file as follows:- “M/s. Glenmark Pharmaceutical Ltd., who has represented to the Hon’ble Minister of Health & Family Welfare for consideration of supply of Gamma Benzene Hexa Chloride + Cetrimide, may also be asked to submit required deficient document and may be placed before Committee for consideration.” Dr. Sugat Kar, Joint Director forwarded the file to the petitioner on the same day. According to the learned Standing Counsel, the petitioner gave wrong & misleading note which was as follows:- “As per marginal orders of the Hon’ble Minister, H & FW on the representation of M/s. Glenmark Pharmaceutical Ltd. at 378/C, they have been asked to submit their required documents for procurement of Gamma Benzene Hexa Chloride + Cetrimide. For this, all the four firms have been declared non-responsive for not giving manufacturing licence and other documents in support of their performance. We may also ask for documents from L-2 firm to place before the Bid Evaluation Committee again. For order.” It is contended that the word “they” as used by the petitioner in the above note sheet goes to show that as if he had suggested to ask all the non-responsive firms to submit the required documents for procurement of Gamma Benzene Hexa Chloride + Cetrimide and with that observation, he sent the file to the Hon’ble Minister, Health & Family Welfare, Odisha through the Principal Secretary to Government, Health and Family Welfare and as per the proposal of the petitioner, it was approved. Again as per note sheet dated 28.05.2005 of the petitioner, the following wrong and misleading views were mentioned by him. Again as per note sheet dated 28.05.2005 of the petitioner, the following wrong and misleading views were mentioned by him. “………As Gamma Benzene Hexa Chloride + Cetrimide is an essential drug, required for all the Hospitals, the Bid Evaluation Committee revaluated the bids after submission of additional documents by all the bidders.” It is emphatically contended that from the above note sheet of the petitioner, it shows that he had mentioned that all the bidders submitted additional documents which the 2nd Bid Evaluation committee revaluated even though no such letter was issued to L-1 firm M/s. Trimurty Chemicals, Cuttack and discriminately two letters were issued to two numbers of firms instead of all the four firms. According to the learned Standing Counsel, the note sheet was not only erroneous but an instance which shows that the petitioner abusing his position showed favour to the private firm M/s. Glenmark Pharmaceuticals Ltd. to derive pecuniary benefits. According to the learned Standing Counsel, the note sheet of the petitioner was misleading and contrary to the spirit of the order of the Hon’ble Minister, Health & Family Welfare, Odisha. From the words used by the petitioner in the above note sheet, such as “as per order of Hon’ble Minister, H & FW”, it transpires as if the Hon’ble Minister, Health & Family Welfare, Odisha directed the petitioner to ask M/s. Glenmark Pharmaceuticals Ltd. to submit the required documents for procurement of Gamma Benzene Hexa Chloride + Cetrimide for which he wrote the same in the sheet. The petitioner should have considered the letter dated 04.02.2005 of M/s. Glenmark Pharmaceuticals Ltd. in accordance with the terms and conditions of the tender. It is contended that while giving his views in the note sheet of the file in consideration of the said the letter dated 04.02.2005, he ought not to have omitted to mention about restrictions imposed in Clause nos. 29.3 and 29.4 of the World Bank tender conditions and that he should have mentioned that once the bid is found substantially non-responsive, the same may not be subsequently made responsive at the instance of bidder by correction of the non-conformity. It is submitted that in the bid in question, guidelines: procurement under IBRD loans and IDA credits: January 2001 is applicable. It is submitted that in the bid in question, guidelines: procurement under IBRD loans and IDA credits: January 2001 is applicable. Under the heading of International Competitive Bidding relating to clarity of bidding documents, Clause 2.18 states that all prospective bidders shall be provided the same information, and shall be assured of equal opportunities to obtain additional information on a timely basis. Similarly under the heading of examination of bids, as per Clause 2.47, it is mentioned that if a bid is not substantially responsive, that is, it contains material deviations from or reservations to the terms, conditions and specifications in the bidding documents, it shall not be considered further. The bidder shall not be permitted to correct or withdraw material deviations or reservations once bids have been opened. It is contended that the petitioner did not point out the price of Rs.14,13,120/-as quoted by M/s. Trimurty Chemicals, Cuttack was Rs.43,46,880/-less than the quoted price of M/s. Glenmark Pharmaceutical Ltd. On the other hand, when the petitioner was of opinion to reopen the case of rejected tenderers even in contravention of Clause 29.4, he should have equally afforded opportunity to the L-1 bidder M/s. Trimurty Chemicals, Cuttack and L-4 firm M/s. Nicolas Pharmaceuticals, Mumbai. The adoption of pick and choose method in the matter of tender in favour of M/s. Glenmark Pharmaceutical Ltd. discriminated the other tenderers. The petitioner and Dr. Sugat Kar, Joint Director, all of OHSDP, without mentioning the above World Bank tender conditions recommended that M/s. Glenmark Pharmaceutical Ltd. may be asked to submit required deficient document and may be placed before the Evaluation Committee for consideration. It is contended that on 22.02.2005, the file was resubmitted to the Hon’ble Minister, Health & Family Welfare, Odisha and on the same day the Hon’ble Minister approved the same mentioning “as proposed”. After approval, as per letter no.1302/OHSDP II-9/03-04, dated 23.02.2005, Dr. Sugat Kar, Joint Director, OHSDP asked M/s. Glenmark Pharmaceuticals Ltd. (L-3) to submit the manufacturing licence and accordingly M/s. Glenmark Pharmaceuticals Ltd. submitted its manufacturing licence on 24.02.2005. According to the learned Standing Counsel, no letter was issued to other tenderers even to the lowest tenderer M/s. Trimurty Chemicals, Cuttack and though a letter vide no. Sugat Kar, Joint Director, OHSDP asked M/s. Glenmark Pharmaceuticals Ltd. (L-3) to submit the manufacturing licence and accordingly M/s. Glenmark Pharmaceuticals Ltd. submitted its manufacturing licence on 24.02.2005. According to the learned Standing Counsel, no letter was issued to other tenderers even to the lowest tenderer M/s. Trimurty Chemicals, Cuttack and though a letter vide no. 1342/OHSDP II-9/03-04, dated 24.02.2005 is shown to have been issued to M/s. Daffodils Pharmaceuticals Ltd. (L-2) to submit the performance certificate, yet no reference of such letter is found from the dispatch record. After collection of fresh drug licence from the co-accused firm M/s. Glenmark Pharmaceuticals Ltd., the petitioner recommended the matter for evaluation before the same BEC for the second time. Although the members of the BEC were aware of tender condition that co-accused firm M/s. Glenmark Pharmaceuticals Ltd. (L-3) cannot be considered on the basis of fresh documents, yet they considered the tender of the ineligible tender as per their decision dated 26.05.2005 which they had rejected earlier on 22.12.2004. It is contended that both Dr. Senapati, DHS and Dr. Bijayananda Mohanty, Dy. Director, SDMU were aware that M/s. Trimurty Chemicals, Cuttack had earlier supplied the same drug to all the Government Hospitals in the DHS tender through SDMU having valid drug licence during the relevant period. They were also aware that the same L-1 firm had offered the same drug having same specification in the World Bank tender for supply to the same Government Hospitals @ Rs.3.68/-per bottle whereas the accused L-3 bidder offered @ Rs.15/-per bottle. Despite being aware of World Bank tender conditions, Dr. Prasant Kumar Senapati, Dr. Bijayananda Mohanty, Dr. Sougat Kar and Dr. Taramani Patnaik recommended the bid of L-3 accused firm at a higher rate. Learned counsel submitted that the letter no.9929, dated 17.09.2009 of Dy. Director indicates that Gamma Benzene Hexa Chloride 1% w/v + Cetrimide 0.1% w/v was purchased during 2003-04 through Director, Health Service Tender Procedure vide SDMU/03-04-DMC-001. The said tender was floated solely for the procurement of GBH 1% w/v + C 0.1% w/v (Gamma Benzene Hexa Chloride + Cetrimide). The evaluation was held in presence of team of officers namely DHS, DMET, DFW, DC, FA -cum-CAO, Health Directorate, DD, SDMU, SMO, CDS, BBSR and MO, SDMU. The bidder found satisfying all the tender conditions was selected as responsive L-1. The evaluation was held in presence of team of officers namely DHS, DMET, DFW, DC, FA -cum-CAO, Health Directorate, DD, SDMU, SMO, CDS, BBSR and MO, SDMU. The bidder found satisfying all the tender conditions was selected as responsive L-1. In the aforesaid evaluation, M/s. Trimurty Chemicals Industries, Cuttack was found to be L-1. Accordingly, the order for supply of GBH 1%, w/v + Cetrimide 0.1% w/v was awarded to M/s. Trimurty Chemicals industries, Cuttack who had supplied 3,06,820 quantities during the period from 01.01.2003 to 31.12.2006 to different warehouses of the State and at no point the quality of drugs supplied by the said firm was questionable. According to Mr. Das, when M/s. Trimurty Chemicals Industries, Cuttack had supplied same quality of medicine in the past and in the present tender, he had quoted lesser price than the price quoted by M/s. Glenmark Pharmaceutical Ltd., the petitioner while illegally giving opportunity to one of the non-responsive bidder for higher rate should have taken reasonable care to maintain transparency by providing same opportunity to the L-1 bidder M/s. Trimurty Chemical Industries, Cuttack. It is contended that on the recommendation of bid evaluation committee, the petitioner issued the order for procurement of 3,80,000 bottles of Gamma Benzene Hexa Chloride + Cetrimide @ Rs.15/-per bottle from the accused firm namely M/s. Glenmark Pharmaceutical Ltd. ignoring the lower rate of L-1 bidder namely M/s. Trimurty Chemicals, Cuttack, causing pecuniary loss of Rs.43,46,880/- to the Government of Odisha. He placed reliance in the cases of State of Orissa Vs. Debendra Nath Padhi reported in (2005) 30 OCrR(SC) 177 and Hem Chand Vs. State of Jharkhand reported in (2008) 40 OCrR(SC) 272 and urged that there are sufficient materials to proceed against the petitioner and the impugned order cannot be faulted with. 7. Law is well settled that when the Court considers the charge against the accused to be groundless which means without any basis or foundation, the accused can be discharged under section 239 of Cr.P.C. For arriving at such a conclusion, the Court has to consider the police report, the documents sent with it under section 173 of Cr.P.C. The Court can also make examination of the accused if it is necessary. Opportunity of hearing has to be provided to both the prosecution and the accused at that stage. Opportunity of hearing has to be provided to both the prosecution and the accused at that stage. The truth, veracity and effect of the materials proposed to be adduced by the prosecution during trial is not to be meticulously adjudged. The likelihood of the accused in succeeding to establish his probable defence cannot be a ground for his discharge. In case of State of Orissa Vs. Debendra Nath Padhi reported in (2005) 30 OCrR(SC) 177, it is held as follows:- “7. Similarly, in respect of warrant cases triable by Magistrates, instituted on a police report, Sections 239 and 240 of the Code are the relevant statutory provisions. Section 239 requires the Magistrate, to consider 'the police report and the documents sent with it under Section 173 and, if necessary, examine the accused and after giving accused an opportunity of being heard, if the Magistrate considers the charge against the accused to be groundless, the accused is liable to be discharged by recording reasons thereof. 8. What is to the meaning of the expression 'the record of the case' as used in Section 227 of the Code. Though the word 'case' is not defined in the Code but Section 209 throws light on the interpretation to be placed on the said word. Section 209 which deals with the commitment of case to Court of Session when offence is triable exclusively by it, inter alia, provides that when it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall commit 'the case' to the Court of Session and send to that Court 'the record of the case' and the document and articles, if any, which are to be produced in evidence and notify the Public Prosecutor of the commitment of the case to the Court of Session. It is evident that the record of the case and documents submitted therewith as postulated in Section 227 relate to the case and the documents referred in Section 209. That is the plain meaning of Section 227 read with Section 209 of the Code. No provision in the Code grants to the accused any right to file any material or document at the stage of framing of charge. That right is granted only at the stage of the trial. xx xxxx xx 16. That is the plain meaning of Section 227 read with Section 209 of the Code. No provision in the Code grants to the accused any right to file any material or document at the stage of framing of charge. That right is granted only at the stage of the trial. xx xxxx xx 16. All the decisions, when they hold that there can only be limited evaluation of materials and documents on record and sifting of evidence to prima facie find out whether sufficient ground exists or not for the purpose of proceeding further with the trial, have so held with reference to materials and documents produced by the prosecution and not the accused. The decisions proceed on the basis of settled legal position that the material as produced by the prosecution alone is to be considered and not the one produced by the accused. The latter aspect relating to the accused though has not been specifically stated, yet it is implicit in the decisions. It seems to have not been specifically so stated as it was taken to be well settled proposition. This aspect, however, has been adverted to in State Anti-Corruption Bureau, Hyderabad and Anr. v. P. Suryaprakasam 1999 SCC (Crl.) 373 where considering the scope of Sections 239 and 240 of the Code it was held that at the time of framing of charge, what the trial Court is required to, and can consider are only the police report referred to under Section 173 of the Code and the documents sent with it. The only right the accused has at that stage is of being heard and nothing beyond that (emphasis supplied). The judgment of the High Court quashing the proceedings by looking into the documents filed by the accused in support of his claim that no case was made out against him even before the trial had commenced was reversed by this Court. It may be noticed here that learned counsel for the parties addressed the arguments on the basis that the principles applicable would be same -whether the case be under Sections 227 and 228 or under Sections 239 and 240 of the Code. xx xx xx xx 18……The scheme of the Code and object with which Section 227 was incorporated and Sections 207 and 207(A) omitted have already been noticed. Further, at the stage of framing of charge, roving and fishing inquiry is impermissible. xx xx xx xx 18……The scheme of the Code and object with which Section 227 was incorporated and Sections 207 and 207(A) omitted have already been noticed. Further, at the stage of framing of charge, roving and fishing inquiry is impermissible. If the contention of the accused is accepted, there would be a mini trial at the stage of framing of charge. That would defeat the object of the Code. It is well-settled that at the stage of framing of charge the defence of the accused cannot be put forth. The acceptance of the contention of the learned counsel for the accused would mean permitting the accused to adduce his defence at the stage of framing of charge and for examination thereof at that stage which is against the criminal jurisprudence. By way of illustration, it may be noted that the plea of alibi taken by the accused may have to be examined at the stage of framing of charge if the contention of the accused is accepted despite the well settled proposition that it is for the accused to lead evidence at the trial to sustain such a plea. The accused would be entitled to produce materials and documents in proof of such a plea at the stage of framing of the charge, in case we accept the contention put forth on behalf of the accused. That has never been the intention of the law well settled for over one hundred years now. It is in this light that the provision about hearing the submissions of the accused as postulated by Section 227 is to be understood. It only means hearing the submissions of the accused on the record of the case as filed by the prosecution and documents submitted therewith and nothing more. The expression 'hearing the submissions of the accused' cannot mean opportunity to file material to be granted to the accused and thereby changing the settled law. At the state of framing of charge hearing the submissions of the accused has to be confined to the material produced by the police. xx xx xx xx 23. As a result of aforesaid discussion, in our view, clearly the law is that at the time of framing charge or taking cognizance the accused has no right to produce any material. xx xx xx xx 23. As a result of aforesaid discussion, in our view, clearly the law is that at the time of framing charge or taking cognizance the accused has no right to produce any material. Satish Mehra's case holding that the Trial Court has powers to consider even materials which accused may produce at the stage of Section 227 of the Code has not been correctly decided. xx xxxx xx 29. Regarding the argument of accused having to face the trial despite being in a position to produce material of unimpeachable character of sterling quality, the width of the powers of the High Court under Section 482 of the Code and Article 226 of Constitution of India is unlimited where under in the interests of justice the High Court can make such orders as may be necessary to prevent abuse of the process of any Court or otherwise to secure the ends of justice within the parameters laid down in Bhajan Lal's case.” In the case of Hem Chand Vs. State of Jharkhand reported in (2008) 40 OCR (SC) 272, it is held as follows:- “8. It is beyond any doubt or dispute that at the stage of framing of charge, the Court will not weigh the evidence. The stage for appreciating the evidence for the purpose of arriving at a conclusion as to whether the prosecution was able to bring home the charge against the accused or not would arise only after all the evidences are brought on records at the trial. 9. It is one thing to say that on the basis of the admitted documents, the appellant was in a position to show that the charges could not have been framed against him, but it is another thing to say that for the said purpose he could rely upon some documents whereupon the prosecution would not rely upon. xx xx xx xx 12. The learned counsel for the CBI is, thus correct in his submission that what has been refused to be looked into by the learned Special Judge related the documents filed by the appellant along with his application for discharge. The Court at the stage of framing charge exercises a limited jurisdiction. It would only have to see as to whether a prima facie case has been made out. The Court at the stage of framing charge exercises a limited jurisdiction. It would only have to see as to whether a prima facie case has been made out. Whether a case of probable conviction for commission of an offence has been made out on the basis of the materials found during investigation should be the concern of the Court. It, at that stage, would not delve deep into the matter for the purpose of appreciation of evidence. It would ordinarily not consider as to whether the accused would be able to establish his defence, if any.” In the case of Rukmini Narvekar Vs. Vijaya Satarkekar and others reported in (2008) 41 OCrR(SC) 853, it is held as follows:- “9. In my view, therefore, there is no scope for the accused to produce any evidence in support of the submissions made on his behalf at the stage of framing of charge and only such materials as are indicated in Section 227 Cr.P.C can be taken into consideration by the learned Magistrate at that stage. However, in a proceeding taken therefrom under Section 482 Cr.P.C, the Court is free to consider material that may be produced on behalf of the accused to arrive at a decision whether the charge as framed could be maintained. This, in my view, appears to be the intention of the legislature in wording Sections 227 and 228 the way in which they have been worded and as explained in Debendra Nath Padhi case by the larger Bench therein to which the very same question had been referred. xx xx xx xx 28(17)……Thus in our opinion, while it is true that ordinarily defence material cannot be looked into by the Court while framing of the charge in view of D.N. Padhi’s case, there may be some very rare and exceptional cases where some defence material when shown to the trial Court would convincingly demonstrate that the prosecution version is totally absurd or preposterous, and in such very rare cases, the defence material can be looked into by the Court at the time of framing of the charges or taking cognizance. 29(18). 29(18). In our opinion, therefore, it cannot be said as an absolute proposition that under no circumstances can the Court look into the material produced by the defence at the time of framing of the charges, though this should be done in very rare cases i.e. where the defence produces some material which convincingly demonstrates that the whole prosecution case is totally absurd or totally concocted. We agree with Sri Lalit that in some very rare cases the Court is justified in looking into the material produced by the defence at the time of framing of the charges, if such material convincingly establishes that the whole prosecution version is totally absurd, preposterous and concocted.” In the case of Rajiv Thapar Vs. Madan Lal Kapoor reported in (2013) 3 SCC 330 , it is held as follows:- “28. The High Court, in exercise of its jurisdiction under Section 482 Cr.P.C., must make a just and rightful choice. This is not a stage of evaluating the truthfulness or otherwise of the allegations levelled by the prosecution/ complainant against the accused. Likewise, it is not a stage for determining how weighty the defences raised on behalf of the accused are. Even if the accused is successful in showing some suspicion or doubt, in the allegations levelled by the prosecution/complainant, it would be impermissible to discharge the accused before trial. This is so because it would result in giving finality to the accusations levelled by the prosecution/complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same. The converse is, however, not true, because even if trial is proceeded with, the accused is not subjected to any irreparable consequences. The accused would still be in a position to succeed by establishing his defences by producing evidence in accordance with law. There is an endless list of judgments rendered by this Court declaring the legal position that in a case where the prosecution/complainant has levelled allegations bringing out all ingredients of the charge(s) levelled, and have placed material before the Court, prima facie evidencing the truthfulness of the allegations levelled, trial must be held. 29. There is an endless list of judgments rendered by this Court declaring the legal position that in a case where the prosecution/complainant has levelled allegations bringing out all ingredients of the charge(s) levelled, and have placed material before the Court, prima facie evidencing the truthfulness of the allegations levelled, trial must be held. 29. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 of the Code of Criminal Procedure, if it chooses to quash the initiation of the prosecution against an accused, at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 Cr.P.C., at the stages referred to hereinabove, would have far reaching consequences inasmuch as it would negate the prosecution's/complainant's case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 Cr.P.C., the High Court has to be fully satisfied that the material produced by the accused is such that would lead to the conclusion that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/ complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 Cr.p.C. to quash such criminal proceedings, for that would prevent abuse of process of the Court, and secure the ends of justice. 30. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 Cr.p.C. to quash such criminal proceedings, for that would prevent abuse of process of the Court, and secure the ends of justice. 30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashment raised by an accused by invoking the power vested in the High Court under Section 482 Cr.P.C.: 30.1. Step one: whether the material relied upon by the accused is sound, reasonable, and indubitable i.e. the material is of sterling and impeccable quality? 30.2. Step two, whether the material relied upon by the accused would rule out the assertions contained in the charges levelled against the accused i.e. the material is sufficient to reject and overrule the factual assertions contained in the complaint i.e. the material is such as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false? 30.3. Step three: whether the material relied upon by the accused has not been refuted by the prosecution/complainant; and/or the material is such that it cannot be justifiably refuted by the prosecution/complainant? 30.4. Step four: whether proceeding with the trial would result in an abuse of process of the Court, and would not serve the ends of justice? 30.5. If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal proceedings, in exercise of power vested in it under Section 482 Cr.P.C. Such exercise of power, besides doing justice to the accused, would save precious Court time, which would otherwise be wasted in holding such a trial (as well as proceedings arising therefrom) specially when, it is clear that the same would not conclude in the conviction of the accused.” 8. In view of the aforesaid citations placed by the respective parties, it is apparent that while challenging the proceeding at the stage of framing of charge, in rare and exceptional cases, if the accused produces materials before the High Court which is based on sound, reasonable and indubitable facts and cannot be justifiably refuted by the prosecution and which are of sterling and impeccable quality or on the basis of admitted document which would rule out and displace the assertions contained in the charges levelled against him, in order to prevent abuse of process of the Court and to secure the ends of justice, the High Court even at the stage of section 239 of Cr.P.C. can take into account such materials. However, the High Court at that stage should not enter into appreciation of evidence to verify if the defence plea can be established by the accused or not. In this case apart from the role of the petitioner in constituting a Bid Evaluation Committee in an illegal manner violating the instructions of the Government, the accusations have been levelled regarding flouting the conditions of the World Bank tender. Whether after rejecting the bids of all the four bidders, opportunity of submitting additional documents could have been given only to two firms out of the four is also another relevant aspect which needs adjudication. There are accusations that transparency was not maintained and equal opportunity was not provided to all the tenderers when the matter was placed in the 2nd bid Evaluation Committee. The placement of wrong and misleading note sheet by the petitioner along with non-placement of the quotation price of L-1 who had earlier supplied the same medicine has also been highlighted by the prosecution. There is accusation that there was deliberate withdrawal of relevant information relating to the restrictions in the World Bank tender conditions while placing the note sheet The allegation of wrongful loss to the Government to the tune of Rs.43,46,880/-(rupees forty three lakhs forty six thousand eight hundred eighty only) by way of criminal conspiracy along with other co-accused persons are to be adjudicated. All the documents upon which the petitioner has relied upon for making out a case of discharge were produced before the Deputy Superintendent of Police, Vigilance Department on 09.09.2008. All the documents upon which the petitioner has relied upon for making out a case of discharge were produced before the Deputy Superintendent of Police, Vigilance Department on 09.09.2008. According to the prosecution, those documents were seized, verified and considered and some of the documents have also been reflected in the charge sheet. Adverting carefully to the contentions raised by the respective parties and on perusal of the case records produced by the prosecution and the documents placed by the petitioner, I am of the humble view that it is very difficult to come to a finding at this stage that the documents placed by the petitioner displace the assertions contained in the charges levelled against him and demonstrate that the prosecution version is totally absurd or preposterous. It is not one of such rare and exceptional case where relying on the documents produced by the petitioner, it can be said that the continuance of the proceeding against the petitioner before the Trial Court would amount to abuse of process of the Court and the same would not be in the ends of justice. Needless to say the ocular testimony and the documentary evidence which would be produced by the respective parties at the time of trial would be considered by the learned Trial Court to arrive at a conclusion as to whether there has been wrongful loss to the Government of Odisha or not and if so, whether the role of the petitioner has got any nexus with such loss and whether there was criminal conspiracy between the accused persons whereby deliberate favouritism was shown to one of the firms. In view of the above analysis, I am of the view that the impugned order passed by the learned Trial Court in rejecting the petition for discharge does not suffer from any illegality, infirmity or perversity and therefore, I am not inclined to interfere with the same. Accordingly, the revision petition being devoid of merits, stands dismissed. It is made clear that this Court has not expressed any opinion on the merits of the case. The learned Trial Court is free to assess the evidence which would come on record and decide the guilt or otherwise of the petitioner while pronouncing the judgment.