Sukh Ram-HTL Bribery Case Judgement

7/31/2019 Sukh Ram-HTL Bribery Case Judgement

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IN THE COURT OF SH. R.P.PANDEY

SPECIAL JUDGE 01 (PC ACT) CBI : ROHINI : DELHI

Corruption case No. : 3/2008

CENTRAL BUREAU OF INVESTIGATION

Vs.

1. Sukh Ram S/o Sh. Bhavdev,

Former Minister of State for

Communication, Govt. of India,

New Delhi.

2. Devinder Singh Choudhary (Since deceased)

S/o Sh. Lal Chand,

Chairman, Haryana Telecom Limited,

Kherisadh, Rohtak,

R/o 574/13, Vikas Nagar,

Sonepat Road, Rohtak.

Date of Registration of FIR : 22.11.1996

Date of Framing of Charge : 01.06.2002

FIR No. : RC-1(A)/96-ACU(V)Under Section : 120 B IPC r/w Section 13 (2) r/w

13 (1) (d) of P.C. Act 1988 and

U/s 7 and 12 of P.C. Act 1988.

Arguments

concluded on : 05.11.2011

Date of Order : 17.11.2011

CASE ID No. : 02404R0077291998

Contd....


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JUDGMENT

1. Brief facts as per the case of prosecution as given in the

charge sheet are that an FIR bearing no.RC-3(A)/96 was

registered with ACI-IV Branch of CBI against accused/Sukh Ram,

the then Minister of State for Communication {MOS(C)}, on

13.08.1996. A search warrant was obtained by Investigating

Officer (IO) of that case from the court of Sh.Dinesh Dayal,

Ld.Spl.Judge (CBI), Delhi to search the house of accused/Sukh

Ram at Shyam Khetar, Mandi (H.P.). That search warrant was

endorsed by IO in the name of Sh.B N Jha (PW-25) Dy.SP of

CBI who along with his subordinate staff reached Mandi on

14.08.1996. On reaching there, he arranged independent

witnesses, two from State Bank of India (SBI), Mandi and the third

witness from State Bank of Patiala (SBOP), Mandi. It was also

decided that the search was to be conducted at the house of the

accused in Mandi, on 16.08.96. On 15.08.1996, SP of CBI Sh.K

Contd....


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L Meena also reached Mandi in order to personally supervise the

search operation. The two witnesses, namely,S/Sh. K K Goyal

and Harish Kapoor from State Bank of India, Mandi, reported to

Mr.Jha at 6.30 a.m on 16.08.96. On 16.08.96, the search team

along with Mr.Goyal and Mr.Kapoor reached the house of the

accused at Mandi. Two persons, namely, Veer Singh and

Rampal were also present there at the house of accused/Sukh

Ram. The instant FIR No.RC-1(A)/96-ACU(V) is an off shoot of

the incriminating material which was recovered from Mandi,

house of accused/Sukh Ram and further investigation carried out

by CBI.

2. FIR No.RC-1(A)/96-ACU(V), was registered on 22-11-1996

against accused/Sukh Ram, Former Minister of State for

Communication, Govt. of India, New Delhi and his co-accused /

Devinder Singh Choudhary, Chairman, Haryana Telecom Limited,

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Rohtak u/s 120B IPC and Sec.13(2) r/w Sec.13(1)(d) and Sec.7

and 12 of the Prevention of Corruption Act, 1988 (for short PC

Act) alleging that accused/Sukh Ram, during 1995-1996, while

working as Union Minister of State for Communication {for short

MOS(C)}, being a public servant, in conspiracy with his co-

accused/Devinder Singh Choudhary, Chairman of M/s Haryana

Telecom Limited, (for short HTL) Rohtak, by corrupt or illegal

means and by abusing his official position as public servant,

caused pecuniary advantage to himself and to M/s Haryana

Telecom Limited, Rohtak, in the matter of procurement of 3.5

Lakh Conductor Kilometers (for short LCKM) of Polythene

Insulated Jelly Filled (PIJF) cables costing about Rs. 30 crores.

Accused/ Sukh Ram also obtained gratification other than legal

remunerations from Devinder Singh Choudhary (for short D S

Choudhary), Chairman of H.T.L., as a motive or reward for

showing the favour to the said firm.

Contd....
http://h.t.k/http://h.t.k/


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3. Accused/Sukh Ram joined the Council of Ministers of the Govt.

of India on 2-7-92 and functioned as Minister of State for

Communication with independent charge from 18-1-93 to

16-5-96. He was also a Member of Parliament from Mandi Lok

Sabha Constituency of Himachal Pradesh. At the time of

registration of this F.I.R he was Member of Legislative Assembly

of Himachal Pradesh. Accused/D.S.Choudhary was working as

Chairman of M/s Haryana Telecom Ltd., Rohtak (HTL) He was

also the President of PHD Chamber of Commerce & Industry,

New Delhi.

4. It is further alleged in the charge sheet that the department of

Telecom, Govt. of India, New Delhi floated tender vide tender

inquiry No.14-21/94 MMT (MMS) dtd. 30-11-1994 for

procurement of 352 lakh Conductor Kilometer (LCKM) of

Contd....
http://f.i.r/http://f.i.r/


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Polythene insulated jelly filled (PIJF) cables for Mahanagar

Telephone Nigam Limited (for short MTNL) and Department of

Telecommunication (for short DOT). The tender was opened on

24-1-1995 and there were 27 companies who submitted their

bids. S/Shri A.K. Jedhkey, ADG(ST), O.P. Bibra, ADG(MMY)

and Vijay Rajpal AD (MMY) constituted the bid opening team

and nine bids were not read out for technical reasons like want

of type approval, bid security, etc. and the bids of the remaining

18 parties including HTL were sent to Tender Evaluation

Committee (TEC) The TEC was headed by Advisor (Production)

as Chairman, while DDG(PF) was a Member and DDG (MM II)

was Member-cum-Convenor. The TEC examined various

technical and financial aspects of tender, held various

deliberations for approval of Telecom Commission and

processing of the purchase proposal.

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5. The said tender was originally for 352 LCKM but the quantity

was subsequently revised to 359.29 LCKM due to deciphering of

the size-wise quantities of the different sizes of cables in

kilometers. The required quantity of PIJF cables for the year

1995-1996 was 260 LCKM calculated at the rate of 8 CKM per

line + 10% for maintenance for 29.44 Lakh lines. The said

quantity of procurement of cable was further revised to 288.72

LCKM calculated @ 8 CKM per line + 10% for net additions of

exchange capacity by 3280940 lines. This requirement was

further enhanced by 98.43 LCKM due to additional requirement

@ 3 CKM per line for 3280974 lines making the grand total of

requirement as 387.15 LCKM.

6. Against the said requirement of 387.15 LCKM the VLF Cell had

already purchased 85 LCKM on deferred payment. Besides, the

DOT had purchased 40 LCKM and MTNL 18.56 LCKM,both on

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cash payment on ad hoc basis. Thus the total cable already

purchased was 143.56 LCKM and there was a balance

requirement of 243.59 LCKM. Out of the total requirement of

387.15 LCKM, MTNL was allocated 57.61 LCKM while DOT

was allotted 329.54 LCKM.

7. Out of 329.54 LCKM to be purchased for DOT they had already

purchased 125 LCKM (85 LCKM on deferred and 40 LCKM on

cash) and there remained a balance of 204.54 LCKM cable to

be purchased. Out of this, 89.63 LCKM was to be purchased on

cash and 114.91 LCKM on deferred payment basis, in view of

the finance available with the department.

8. Out of 57.61 LCKM to be purchased by MTNL they had already

purchased 18.56 LCKM in cash (against authorization of 18.74

LCKM i.e. 0.18 LCKM less purchased) and there remained a

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balance of 39.05 LCKM only to be purchased. Out of this 39.05

LCKM, 30.74 LCKM was to be purchased on cash and 8.31

LCKM on deferred payment, in view of the finances available with

the department.

9. The total proposed purchase on cash as per TEC was 178.93

LCKM and they had already purchased 58.56 LCKM on cash.

Thus, there remained a balance of 120.37 LCKM (178.93

58.56) to be purchased on cash. Since MTNL had purchased

0.18 LCKM less than its authorized quantity the total requirement

for purchase in cash became 120.37-0.18 = 120.19 LCKM only.

10.Sh. R.P. Hans, Dy. Director General, MM II submitted a note

dated 26-9-95 for procuring 178.93 LCKM cables on cash basis

for the year 1995-96. This recommendation was approved by

the Telecom Commission.

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11.Accused/Sukh Ram, the then Minister of State (Communication),

vide his note dated 16-7-93 had ordered the Chairman Telecom

Commission that after the finalization of every tender and before

the issue of purchase order, every case may be put up to him with

a note from the Chairman, Telecom Commission, giving summary

of the history of the case and explaining delay in time taken for

finalization of the tender. In view of these instructions the above

proposal was placed before accused/Sukh Ram, the then Minister

of State for Communication for final approval.

12.Accused/Sukh Ram, the then Minister of State for

Communication vide his note dated 30-9-95 observed that only 6

months were left for supplies to be effected during the current

financial year 1995-96 for meeting the targets but orders

proposed on some of the firms were far in excess of their

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manufacturing capacity for six months and further supplies were

also likely to be outstanding with the firms. He directed that the

allocation may be reworked out taking into account firm-wise

capacity for six months as derived from their annual capacity as

on the date of opening of the tender, supply record against last

year's allocation, supplies made till date against orders on

deferred payment and ad hoc orders placed earlier and benefit

of tax concessions, if any, which may result in saving to DOT.

13.Sh. Narender Kumar, Director MMS, in compliance to the said

directions of accused Sukh Ram, reworked the whole allocation

and put up a note dated 18.10.95 giving allocation of the

quantities of cables. As per the order of MOS(C) the allocation to

firms were restricted to their six months' capacity which

generated over flow of quantity totaling to 15.85 LCKM. Sh.

Narender Kumar proposed the re-allocation of the over flow to

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the firms having spare capacity and also to the firm giving tax

concessions (M/s Sterlite India Limited, Silvassa) to DOT. The

capacity of M/s HTL, as on 24-1-95 i.e. the date of opening of

tender was 14 LCKM. There was a back log of 2.57 LCKM from

the orders placed in 1994-95. In 1995-96 an order of 4.59

LCKM (i.e. 2.37 LCKM on deferred payment and 2.22 LCKM

on cash payment) was placed on them. Out of this total quantity

of 7.16 LCKM, M/s HTL could supply only 3.67 LCKM up to

September 1995, which was 51.26% of the orders in hand and

there was a balance of 3.49 LCKM till September, 1995. As such

Sh.Narender Kumar in his above mentioned note pointed out that

the supply position of M/s HTL was precarious and no quantity

out of over flow was recommended for allocation to this firm.

Sh.Narender Kumar proposed for allocation of 120.19 LCKM

since 58.56 LCKM was already purchased/ authorized for

purchase ( i.e. 40 LCKM by DOT and 18.56 LCKM by MTNL

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which had authorization to purchase 18.74 LCKM). This note was

finally approved by Chairman Telecom. on 24-10-95 and the file

was put up to accused/Sukh Ram, MOS(C).

14.It is further alleged as per charge sheet that Accused/Sukh Ram,

then Minister of State for Communication, vide his note dated

3-11-95 while approving the said allocation, as approved by

Telecom Commission, dishonestly and with a view to give

wrongful gain to M/s HTL enhanced the allocation quantity of

120.19 LCKM by about 10% making a total of 132.19 LCKM,

without going into the financial aspect of the purchase and also

without taking concurrence from the finance and out of this

increased quantity of 12 LCKM he made allocation of 3.5 LCKM

to HTL.

15.Thus, it is alleged that the enhancement of procurement quantity

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by 10% making further requirement of 12 LCKM was without

recommendation of the department, and without considering the

financial implication and further, its distribution was totally

arbitrary and without justification and the quantity was allotted to

the firms picked up by accused/Sukh Ram himself. It was also

against the parameters laid down by accused himself in his

previous note dated 30.9.95. Accused/Sukh Ram deliberately

ignored the proposal of the department that the supply position

of M/s HTL was precarious and the Department had not

recommended for giving it any quantity out of over flow. The cost

of so allotted 3.5 LCKM cable to M/s HTL comes to Rs. 30 crores

approximately. Thus, it is alleged that a pecuniary advantage

was wrongfully allowed by accused/Sukh Ram to M/s HTL of co-

accused/ Devinder Singh Chaudhary in this manner.

16.In view of the said allocation made by accused/Sukh Ram, M/s

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HTL was issued a letter of intent No. 203-60/94 MMS dtd.

10-11-95 for supply of 7.01 LCKM of cable which included said

3.5 LCKM. HTL was required to supply 3 LCKM to Himachal

Pradesh circle, 1.24 LCKM to Haryana circle, 2.19 LCKM to

J&K circle and 0.58 LCKM to MTNL, the supply of which had

already been made and payment received, which included supply

of said 3.5 LCKM granted by accused/Sukh Ram.

17.Central Bureau of Investigation, Special Police Establishment,

while conducting search of the house of accused/Sukh Ram

situated at Mandi (HP), during investigation of case No.

RC-3(A)/96 ACU(IV) on 16-8-96, seized cash amount of Rs.

1,16,51,520/- in the form of currency notes. Out of these Govt.

currency notes, an amount of Rs.3 lacs (600 currency notes of

Rs.500 denomination each) was recovered in an envelop along

with a visiting card in the name of aforesaid co-accused/

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Devinder Singh, President PHD Chamber of Commerce and

Industry, New Delhi, which indicated that accused/Sukh Ram

obtained the said amount of Rs. 3 Lakhs form M/s HTL of his co-

accused/ Devinder Singh Choudhary, as a motive or reward for

the aforesaid favour shown by him to the said firm.

18.It is further alleged in the charge sheet that accused/Sukh Ram

while being a public servant in his capacity as MOS(C) in

conspiracy with co-accused/ Devinder Singh Choudhary of M/s

HTL, by corrupt or illegal means or otherwise abusing his official

position as such public servant, obtained pecuniary advantage

for himself and / or to M/s HTL of accused/Devinder Singh

Chaudhary. Further accused/Sukh Ram in his said

capacity/obtained a sum of Rs. 3 Lakh as a motive or reward for

showing the favour in the aforesaid manner to M/s HTL of

accused/Devinder Singh Chaudhary, which amount was paid to

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him by accused/Devinder Singh Chaudhary. On the basis of

these facts, IO after obtaining the requisite sanction u/s 197

Cr.PC filed charge sheet. Cognizance was taken by the court.

19.Copies of documents as required U/s 207 Cr.P.C were supplied

to accused and after hearing the parties, Ld.Predecessor, vide

order dated 1-6-2002 framed a charge against accused Sukh

Ram for the offence punishable U/s 7 and 13 (1) (d) r/w Section

13 (2) of PC Act and a charge U/s 12 read with section 7 of PC

Act against his co-accused/Devinder Singh Choudhary and

further a charge U/s 120B of IPC r/w Section 7, 12 and 13 (1)(d)

r/w 13 (2) of PC Act against both the accused.

20.It is worthwhile to mention here that while framing charge vide

order on charge dated 01.06.02, ld.predecessor had observed

that investigation carried out by CBI also show that when the

Contd....
http://cr.p.c/http://cr.p.c/


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department took up further purchase of PIJF cables in April-May,

1996, it noted that supply performance of HTL upto February,

1996 was only 59.39% and the orders placed on deferred

payment basis had not been executed so far, although the

agreements were signed in the year 1995 but HTL had backed

out from the commitments made to department to supply cables

under deferred payment scheme, therefore, it was proposed by

the department that orders on HTL and two other companies,

whose supply position was not good, be placed only after timely

and successful execution of the existing orders, but

accused/Sukh Ram, the then MOS(C), vide his order dated

08.05.96 did not agree with the department and directed

immediate placement of purchase order on HTL for purchase of 4

LCKM of PIJF Cable without any plausible reason. Thus, the

accused was charged not only with respect to allocating 3.5

LCKM of additional PIJF cables vide order dated 03.11.95 but

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also for placing immediate order for purchase of 4 LCKM of PIJF

cable vide order dated 08.05.96. Both the accused pleaded not

guilty and claimed trial.

21.To prove its case prosecution examined 32 witnesses and

defence side examined 19 witnesses. After defence evidence

was closed on 14.09.09 and the matter was at the stage of final

arguments, accused/D S Choudhary expired and vide order dated

08.01.10 passed by ld.predecessor of the court proceedings qua

accused/D S Choudhary stood abated.

22.I have heard Sh.C S Sharma, Advocate, ld.Special Public

Prosecutor for CBI and Sh Sh.R N Mittal, Sr.Advocate and

Sh.Pawan Narang ld.defence counsels for accused/Sukhram and

perused the evidence on record.

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India accorded the sanction u/s 197 Cr.PC for prosecution of

accused/Sukh Ram for the said offences. The sanction order,

Ex.PW-26/A was authenticated by Sh.V K Malhotra, the then

Joint Secretary in the Ministry of Home Affairs, Government of

India.

24.To prove the sanction, prosecution examined Sh.V K Malhotra

(PW-26) who had processed the file relating to the sanction and

also authenticated the said sanction order after the Hon'ble

President of India had accorded the sanction. He has stated that

along with the said request for sanction he had received the

report of SP, CBI, calender of evidence consisting of documents

and statement of witnesses. The request was examined in the

light of SP's report, evidence made available by the CBI and after

discussion of the issue with the concerned department, Law

Ministry, etc. and after having considered all the opinions,

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sanction was accorded by Hon'ble President of India.

25.The perusal of the sanction order, Ex.PW-26/A would show that it

is quiet a detailed one. After discussing all the relevant facts in

detail in the sanction order itself, the Central Government

concluded that all the facts mentioned in the sanction order

constituted offences punishable u/s 120-B IPC; Sections 13(2) r/w

section 13(1)(d) and Sections 7 & 12 of PC Act, 1988.

26.Ld.Special Public Prosecutor has argued that no doubt the

sanction is necessary for prosecution of a public servant as it is a

safeguard against the frivolous and vexatious prosecution of a

public servant from harassment, but the sanction should not be

taken as a shield to protect a corrupt and dishonest public

servant. He has submitted that in the instant case sanction order

speaks for itself and the satisfaction of the sanctioning authority is

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India despite the fact that his opinion was available before him in

the file when the same was put up to him for sanction but he

discarded the said opinion.

28.He has further contended that when the file was re-submitted by

the Home Ministry before President for granting the sanction, no

fresh material was collected by the CBI and it without making any

further investigation, offered the comments on the same material

collected earlier. The comments dated 05.02.98 offered by Sh.S

K Upadhaya, the then DIG, CBI, which were made the basis by

the Home Ministry for re-submitting the file to the President for

according the sanction, were nothing but the repetition of the SP

report. The file was not re-submitted to Law Ministry and its

opinion was not taken again and as such there was no application

of mind by the sanctioning authority while according the sanction.

He also argued that from the sanction order, it can not be inferred

Contd....


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that the recovery of Rs.3 lacs was towards the illegal gratification

for the undue favour shown by accused to HTL in matter of

allocation of 3.5 LCKM of the cable to it and thereby to cause

undue pecuniary advantage to it. He has also argued that since

the sanction order does not mention even a word about the

second part of charge framed by the court against the accused in

respect to the allocation of 4 LCKM of the cable to HTL, therefore,

the court was not competent to frame the charge with respect to

this allegation, and consequently the trial as regards the second

allegation is vitiated. To strengthen his submission, he has relied

upon judgment cited as Gokul Chand Dwarkadas Morarka Vs.

The King, Indian Appeals, JC 1948 {(LR) Vol.LXXV} 30. He

has also alleged that the sanction is politically motivated. He also

submitted that because of change in Union Government the

President, without applying his mind, accorded the sanction when

the file was re-submitted without any fresh and further material. It

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is thus submitted by ld.defence counsel that Sh.K N Bhatt was

appointed, Additional Solicitor General of India during the tenure

of Sh.Atal Bihari Vajpai as Prime Minister, therefore, the opinion

of the said ASG dated 17.07.97 was politically motivated and was

obtained only in order to maliciously prosecute accused/Sukhram.

29.Ld.Special Public Prosecutor has countered all the points raised

by the ld.counsel for the accused and taken the court through the

evidence on record to show that the President never refused the

sanction but had only asked the Home Ministry to examine and

meet the points raised by the Law Ministry. The Hon'ble President

never asked to get the case further investigated and to bring

additional material when the file was to be re-submitted before

him for sanction. Ld.Prosecutor has vehemently refuted the

allegation that the sanction was politically motivated. According

to him when the proposal was sent for the first time to the

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President, Sh.I K Gujral was the Prime Ministry and Sh.K R

Narayanan was the President and this position did not change

when the sanction to prosecute accused/Sukh Ram was finally

accorded and, therefore, there is no justification to the accused to

assert that it was politically motivated. As regards to the framing

of the charge for allegation of allocation of 4 LCKM to HTL and

subsequent trial thereof, for this allegation, he has submitted that

the ld.predecessor of the court had taken the cognizance of the

offence punishable u/s 13(2) r/w Sec.13(1)(d) of the PC Act, 1988

in respect to allegation of allocation of 3.5 LCKM of the cable and

while examining the case for framing of charges, he found

sufficient material for yet another allegation in respect to

allocation of 4 LCKM committed in the same transaction.

According to ld.Special Public Prosecutor cognizance is taken by

the court of the offence and not of the accused or allegation.

Therefore, according to him, the court was justified and was

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competent to include the said allegation in that charge and

subsequent trial of the accused on the said allegation was valid.

To buttress his argument he has relied upon a recent judgment of

the Hon'ble Supreme Court titled as Kuldeep Sharma Vs. State

of HP, 2011 III AD (CRI) (SC) 9 para 11.

30.The contention of the ld.counsel of the accused is that the

Hon'ble President, in view of the opinion of the Law Ministry,

refused to accord the sanction when the case for sanction was

put before him for the first time.

31.To buttress his arguments, he has also relied upon judgment

cited as State of HP Vs. Nishant Sarin, Crl.Appeal No.2353 of

2010 decided by Hon'ble Supreme Court on 09.12.2010,

wherein it was laid down by Hon'ble Supreme Court that if the

sanctioning authority has once refused to sanction the

Contd....


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prosecution of accused, it can not subsequently change its

opinion and order sanction to prosecute the accused on the same

material.

32.To appreciate this point properly, it would be necessary to

examine the remarks made by the Hon'ble President on the file

when he returned it for meeting out the points raised by the Law

Ministry. The defence, in order to prove that the Hon'ble

President had refused the sanction, got the said file summoned

from the Ministry and examined Sh.Neeraj Kansal, Director,

Central State Division, Ministry of Home Affairs, New Delhi

(DW-19). The remarks made by the President when the file was

submitted before him (page no.4 of examination-in chief of DW-19

dated 31.03.09) are reproduced below;-

I have examined the papers in the Ministry of Home

Affairs, File No.10/6/97-MNG in relation to the proposed

sanction for the prosecution of Sh.Sukh Ram, former

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Minister of State for Communication. I find that the

Department of Legal Affairs in the Ministry of Law and

Justice had in its earlier observation, entertained strong

and emphatically worded reservations in the matter. It

had even gone to the extent of observing ...... the

material as brought out in the referring note falls short

of essential ingredients of the offence alleged to have

been committed by Sh.Sukh Ram, and as such, there

does not appear to be a prima facie case for grant of

the sanction for prosecution of Sh.Sukh Ram.

There is nothing on the file to show that the reservation

expressed by the Department of Legal Affairs in the

earlier stage of its examination of the case have been

addressed. Before a case for sanction is presented, itwould be necessary that all those observations are

thoroughly addressed even though it may not be

necessary to go into minute of evidence.

The case may be examined in the light of the above

and paper re-submitted.

(Emphasis supplied)Sd/

(President of India)

24.12.1997

33.On the basis of the above remark, the ld.counsel for the accused

has concluded that the Hon'ble President had refused to accord

the sanction. I am afraid that this conclusion can not be drawn by

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any stretch of imagination. If the sanctioning authority had

refused to accord the sanction, he would have rejected outrightly

the proposal of sanction. It had no reason to write that the case

be examined in the light of the aforesaid remarks and paper be

re-submitted (emphasis supplied). What the sanctioning authority

wanted was that the objections raised by the Law Ministry should

be addressed to i.e should be explained for the material collected

during the investigation and that too without going into the minute

of the evidence.

34.It would not be out of the place to mention that on the same

material which was placed before the sanctioning authority, this

court found that a prima facie case is made out for the offences

punishable u/s 120-B IPC under sections 7, 13(2) r/w Section

13(1)(d) of PC Act, 1988 and that order has become final.

Therefore, when the file was re-submitted by the Home Ministry,

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after meeting out the objections raised by the Law Ministry, then

only the Hon'ble President had accorded the sanction for

prosecution of accused/Sukh Ram. Here, it would not be out of

context to say that even Hon'ble President did not agree with the

opinion of the Law Ministry. Had he agreed with the said opinion

of the Law Ministry, he would have rejected the proposal then and

there. In that situation, he had no justification to ask the Home

Ministry to re-submit the file after meeting out the objections

raised by the Law Ministry. It may be mentioned that from the

statement of Sh.V K Malhotra (PW-26) and Sh.Neeraj Kansal

(DW-19), it is quiet clear that the sanction was never refused by

the Hon'ble President, at any stage. It may be inferred from the

aforesaid note that the sanctioning authority simply wanted

certain doubts, created by the Joint Secretary of the Law Ministry,

removed.

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35.Next point raised by the ld.counel for defence is that the Home

Ministry without any fresh material or further investigation by CBI

re-submitted the file before the sanctioning authority. The Home

Ministry, after the receipt of the aforesaid remarks by the

President, sent the letter Ex.PW-26/DA=Ex.PW-26/DAA along

with the said comments offered by the Law Ministry,

Ex.PW-26/DB and the opinion of Sh.K N Bhatt, the then

Additional Solicitor General of India, Mark 'X' (true copy is

compared from original during cross-examination of PW-26 on

27.07.07) and asked for its comments. Sh.S K Upadhaya, the

then DIG, CBI offered parawise comments vide his note,

Ex.PW-26/DC=Mark'C' and met all the objections of the Law

Ministry. I am not able to fathom as to how the ld.counsel for the

accused gathered the impression that the file was to be re-

submitted to the President only after the fresh material had

emerged. On the contrary, from the aforesaid remarks, it is quiet

Contd....


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34

apparent that he wanted the file to be re-submitted after meeting

out the objection raised by the Ministry. He, vide his said

remarks, had made it clear that it may not be necessary to go into

minutes of the evidence. This makes it abundantly clear that he

sought the clarification on the existing evidence.

36.It has also been argued by the ld.defence counsel that the Home

Ministry, after the receipt of comments from CBI and before re-

submitting the file to the Hon'ble President, did not send the file to

Law Ministry again for its further opinion and the sanctioning

authority without applying its mind accorded the sanction. This

argument is having no force. Nowhere, the sanctioning authority

had directed the Home Ministry that the file be re-submitted

before him only after having got examined from the Law Ministry.

Even otherwise, from perusal of evidence on record, it transpired

that this matter was examined at the level of Minister of State in

Contd....


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35

the Law Ministry, who was in agreement with the opinion of

Additional Solicitor General. Sh.Neeraj Kansal, Director, Central

State Division, Ministry of Home Affairs (DW-19) in his cross-

examination has proved the note sheet of the said file from

18.02.98 to 27.03.98 (Ex.DW-19/P1). On page 46 of the said

note sheet there is a note dated 24.02.98 recorded by Sh.R D

Kapur, Additional Secretary (Home). In the said note he has very

specifically mentioned that The Minister of State for Law &

Justice is in agreement with the opinion of the Additional Solicitor

General. This statement of the Additional Secretary in his above

said note makes it abundantly clear that after return of the file by

the President, the Home Ministry had consulted the Law Ministry

before re-submitting the case to the Hon'ble President for

according sanction u/s 197 Cr.PC. Therefore, the said contention

of the ld.defence counsel, even assuming for the sake of

argument that the Home Ministry should have consulted the Law

Contd....


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36

Ministry before re-submission of the file to the Hon'ble President,

becomes redundant.

37.It has been further contended that the sanction to prosecute

accused/Sukh Ram was politically motivated, therefore, there was

no application of mind. Sh.V K Malhotra (PW-26) who processed

and authenticated the sanction order was cross-examined in that

direction. It was suggested to this witness that the opinion of

Sh.K N Bhatt was politically motivated and was obtained to

malign and maliciously prosecute accused/Sukh Ram. This

argument appears to be imaginary and away from the facts

proved on record. Sh.Neeraj Kansal (DW-19) during his cross-

examination by ld.Special Public Prosecutor has stated that Sh.I

K Gujral was the Prime Minister and Sh.K R Narayanan was the

President when the proposal was sent for the first time to the

President to accord the sanction and that this position did not

Contd....


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38

Court had observed the giving of sanction confers jurisdiction on

the court to try the case and the judge or magistrate having

jurisdiction must try the case in the ordinary way under the Code

of Criminal Procedure. The charge need not follow the exact

terms of the sanction, though it must not relate to an offence

essentially different from that to which the sanction relates.

39.To appreciate the point it would be necessary to have a look of

Section 197 Cr.PC, 1973. It provides that no court shall take

cognizance of an offence without the sanction of the Government.

The court takes the cognizance of an offence and not of offender

or the allegation. If the sanctioning authority has accorded the

sanction in respect an offence, and if in the same transaction of

that offence for which the sanction has been accorded, some

other facts also emerge which make out the same offence, in

such a situation, in my opinion, it would not be possible for the

Contd....


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39

court to ignore that allegation. The court would be justified and

competent to frame the charge and try that allegation. Further

where sanction has been accorded for the offence of conspiracy

and there is no direct evidence for the commission of offence of

conspiracy and the commission of this offence is to be inferred

from the attending facts and circumstances including the acts

amounting to commission of the offence committed by the

accused persons, it would cover all the acts which were

committed in the same transaction. In the instant case the

sanctioning authority accorded the sanction for the offence of

conspiracy punishable u/s 120-B IPC, therefore, this court was

having the jurisdiction to frame the charge and try the accused for

the allegation of allocation of 4 LCKM to HTL as this allegation is

a part of the same transaction and does not relate to an offence

essentially different from that to which the sanction relates.

Contd....


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40

40.This issue can be viewed from a different angle also. The

general law is that the court is competent to take the cognizance

of any offence. Section 197 Cr.PC, which provides for sanction

from the competent authority without which the court can not take

cognizance of an offence against the public servant, is an

exception to this general rule. Therefore, it is necessary to keep

in mind the object of sanction. The object of sanction has been to

provide the protection to the public servant from frivolous and

vexatious prosecution. Once this aspect has been gone through

by the sanctioning authority who has accorded the sanction to

prosecute the public servant, it would mean that the prosecution

against the public servant is not frivolous and vexatious. In this

context it would be appropriate to quote the observation made by

the Hon'ble Supreme Court in the case C S Krishanamurthy Vs.

State of Karnataka, reported as II (2005) CCR 35 (SC):-

It is no doubt true that the sanction is necessary for

every prosecution of public servant, this safeguard is

Contd....


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42

471, 201, 511 and 120-B of IPC as also for offence under section

5(2) of the PC Act for preparing false muster roll no.146 only. On

those facts the Hon'ble Supreme Court did not quash the

conviction of the appellant in relation to muster roll no.230. The

relevant paragraph is extracted from the said judgment and is re-

produced as under:-

Mr.Panda, then submits that the State Government

while granting sanction has taken into account the entry

of fictitious names of casual labourers in muster role no.146 but the charge was framed in respect of muster roll

no.230 and, therefore, the conviction of the appellant is

vitiated on this ground alone. The submissions need

not detain as such. As stated earlier, the appellant has

been convicted for his role in relation to muster roll nos.

146 and 230. Admittedly, while sanctioning

prosecution, the role of appellant in relation to muster

roll no.146 has been adverted to. Therefore, hisconviction can not be held to be illegal only for the

reason that no reference was made to muster roll no.

230 in the sanction order. (Para 11)

42.In view of above discussion, it would be a futile effort to dwell on

this point any further. To conclude, the sanction order, evidence

Contd....


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43

of S/Sh.V K Malhotra and Neeraj Kansal and the documents got

proved by the prosecution and defence show that the sanction

was accorded by the Hon'ble President after applying his mind

and no fault can be found with it.

IMPLICATIONS OF ORDER DATED 16.07.1993

(Ex.PW-10/D-10) PASSED BY ACCUSED/SUKH RAM TO PUT

UP EVERY CASE TO HIM BEFORE THE ISSUANCE OF

PURCHASE ORDER.

43.Before discussing the allegations of accepting or obtaining the

gratification other than legal remuneration amounting to Rs.3 lacs

by accused/Sukh Ram from his co-accused/D S Choudhary

(since deceased) and abusing his position as public servant by

allocating additional quantity of 3.5 LCKM PIJF Cables and

directing the immediate placement of purchase order of 4 LCKM

PIJF Cables on HTL to cause pecuniary advantage to his co-

accused, it would be desirable and appropriate to discuss the

implications of the order dated 16.07.1993, Ex.PW-10/D-10

Contd....


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44

(D-53) passed by accused/Sukh Ram as Minister of State

(Communication). Accused/Sukh Ram functioned as Minister of

State (Communication) with independent charge from 18.01.93 to

16.05.96. He, in that capacity, passed the aforesaid order dated

16.07.93 that before the issue of purchase order, every case be

put to him. The relevant portion of the said order is extracted and

is reproduced hereunder:-

After the finalization of every tender and before theissue of purchase orders, every case may be put up to

me with a note from the Chairman (TC) giving summary

of the history of the case and explaining the delays in

time taken for finalization of that tender.

44.The ld.Special Public Prosecutor has submitted that real purpose

of this order dated 16.07.93 was to create an opportunity to

indulge into malpractice which shows the propensity of

accused/Sukh Ram towards commission of such offences

covered under PC Act. On the other hand, ld.counsel for the

accused has contended that this order is an innocuous order and

Contd....


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45

no oblique motive can be attributed to the accused when he

passed this order. According to him this order (Ex.PW-10/D-10)

shows the anxiety of the accused about the difficulties faced by

the field staff due to the delayed supplies of the equipments and

that the contents of this order does not make out commission of

any offence by the accused. According to him, this order was a

policy decision which the accused, as a Minister, was competent

to pass. He has further contended that accused was not the only

Minister who passed such an order and that even prior to this, his

predecessors had also passed such orders. In order to buttress

his contention he has relied upon Annexure11.1 at page 55 of the

Telecom Commission Manual, Ex.PW-1/D-1 (D-43) wherein an

earlier Minister of State (Communication) laid down certain

guidelines which were to be followed in connection with the

distribution of the quantity of the stocks to be purchased through

the tenders.

Contd....


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46

45.The contention of the ld.defence counsel is not at all tenable. At

first glance the order dated 16.07.93 (Ex.PW-10/D-10) appears to

be innocuous and one can gather an impression that it was

passed to bring efficiency in the working of department and to

redress the grievances of field officers who had been complaining

about the delay in the supply of equipments and materials which

hampered the development of Telecom facilities. In his

(accused's) view the important parameter which used to cause

the said situation was the abnormal delays in finalizing the

tenders at headquarters. But perusal of the subsequent events

and the statement of witness Sh.R K Takker (PW-2) would falsify

the contention of the defence. The expeditious finalization of the

tender was only a pretext as the same delay in finalization of the

tenders continued even thereafter. It transpires that by passing

this order, accused/Sukh Ram created an opportunity to indulge

Contd....


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47

in corruption and to extend undue favour to the parties with

oblique motive. In the case at hand, as is apparent from the

Notice Inviting Tender (hereinafter mentioned as NIT) Ex.PW-1/1

(page 124/C in D-5) and the statement of PW-1/Sh.Om Parkash

Bibra, the NIT for procurement of 352 LCKM of PIJF Cables for

two years i.e. 1995-96 and 1996-97 was issued on 30.11.94 but it

was not finalized even upto October 1995 as is clear from the

notings dated 30.09.95 (Ex.PW-2/8) and 03.11.95 (Ex.PW-2/9)

and the Letters of Intent were issued by the department only on

10.11.95 for the supply of cables against this tender. The

accused did not enquire or got enquired into the causes for such

an inordinate delay in finalization of the tender and as to the

officers who were responsible for it. Failure on his part to take

notice of this delay leads to irresistible conclusion that the said

order, Ex.PW-10/D-10 was not passed by him to streamline

working of the department for expeditious finalization of the

Contd....


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48

tender but it was passed with an oblique motive to cause undue

favour by abusing his position as public servant thereby causing

undue pecuniary advantage to himself and/or to other persons.

Moreover, the job of a Minister was to formulate the policies for

efficient workings and not to indulge in such matters as putting up

every purchase order to him before it was issued. In this regard

the statement of Sh.R K Takkar, the then Chairman of Telecom

Commission (PW-2) is material. The relevant portion of the

statement of sh.R K Takkar (PW-2) is re-produced hereunder for

better appreciation of this issue:-

It is correct that MOS (C) is above the Commission. It is

correct that the Minister had the power to take decision

under the Transaction of Business Rules, 1961.

Que.Is it correct that as per Government of India

(Transaction of Business) Rules, 1961, the Minister was

fully competent to take decision as far as Ministry was

concerned and it is to be treated as decision of Cabinet.

Ans.The Executive Order by the Government of India

setting up Telecom Commission did not envisage any role

for MOS (C) in the purchase of stores, etc. When Sukh

Contd....


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49

Ram joined as MOS (C) he issued an order that supply

orders should be placed with his prior approval. Strictly

speaking, the order passed by him was contrary to

the order issued by the Government of India in

respect of Telecom Commission. Department of

Telecommunication was organized in a different

manner than other departments when TelecomCommission was set up, its relationship vis-a-vis---

the Minister were defined in the order whereby it was

set up and the role of the Minister was confined to lay

down policies and issuing directions on

policies. (emphasis supplied) (Pages 11 & 12 of cross-

examination of PW-2 dated 01.07.02 before lunch break).

46.This answer was given by the witness in his cross-examination

and this fact was not refuted by the accused by putting any

suggestion to the witness to the contrary. It is noteworthy that

this document, Ex.PW-10/D-10 was got proved by the defence in

the cross-examination, therefore, the accused can not escape

from its ensuing consequences.

ALLEGATION RELATING TO THE ALLOCATION OF 3.5 LCKM

BY THE ACCUSED TO M/s HARYANA TELECOM LIMITED

47.As per prosecution case the accused/Sukhram is alleged to has

Contd....


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50

committed the offences under the Indian Penal Code and the

Prevention Corruption Act, 1988 in respect to Tender No.

14-21/94-MMT(MMS) dated 30.11.1994. The relevant orders

passed by accused/Sukh Ram which make out the commission of

the said offences are dated 30.09.95 and 03.11.95. It would be

proper to mention the relevant facts which would facilitate us to

understand the implication and intricacies in the case which would

crop up from time to time while analyzing the facts and

appreciating the evidence which has emerged during the trial of

the case.

48.The Department of Telecommunications of Ministry of

Communication, Government of India floated the tender vide

Tender Enquiry No.14-21/94-MMT (MMS) dated 30.11.94 for the

procurement of 352 LCKM of PIJF Cables for MTNL and DOT for

the years 1995-96 and 1996-97. Initially the date of receipt of the

Contd....


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51

tenders and their opening date was fixed as 19.01.95 but the

same was extended to 24.01.1995.

49.The procedure for the procurement of the cables was that on

receipt requirements of cables from different circles of DOT, a NIT

used to be prepared, issued and published in the newspapers. In

response to same, the tender bids were required to be submitted

within the stipulated period of time as given in NIT. A committee

used to be constituted by the department to open the bids

received in response to NIT and the bids were opened in the

presence of all the members of the Committee as well as in the

presence of all the bidders (Ex.PW-1/1 NIT at pages 176/C and

177/C of D-5, PW-1 and PW-5, pages 1 of examination-in-

chief).

50.Accordingly a Bid Opening Committee comprising of 1.Sh.A K

Contd....


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52

Jedhke, ADG (ST) (PW-5); 2.Sh.O P Bibra, ADG (MMY) (PW-1)

and 3.Sh.Vijay Rajpal, AD (MMY) was constituted (PW-5/A K

Jedhke page 1 of examination-in chief and Ex.PW-1/3 Bid

Opening Minutes placed at page 10/C of D-5).

51.In response to the above NIT as many as 27 bids were received

from different parties which also included the bid from M/s

Haryana Telecom Ltd. (HTL). Out of these 27 bids, only 18 bids

were considered eligible and the remaining 9 bids were not taken

into consideration for various reasons which have been assigned

in the Bid Opening Minutes. Bid Opening Minutes, Ex.PW-1/2

was prepared by the Bid Opening Committee and the same was

signed by all the members of the committee. Copy of Bid

Opening Minutes was sent to Tender Evaluation Committee along

with the bids of 18 parties including the bid of HTL {PW-1 and

PW-5, page 1 of examination-in chief of both the witnesses

Contd....


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53

and Ex.PW-1/2 (list of bids at page 10/C to 12/C of D-5) and

Ex.PW-1/3 (Bid Opening Minutes at page 10/C to 13/C of

D-5)}.

52.A Tender Evaluation Committee (in short TEC) comprising of

1.Sh.D B Sehgal, Advisor (P) as Chairman; 2.Smt.Shaukat Ara

Tirmizi, DDG (PF) and 3.Sh.Arun Kumar, DDG (MM-II) as

members was constituted with the approval of Member (F) and

Member (P). These bids of eighteen parties were examined by

the said committee. It submitted its report, Ex.PW-2/D-6 which

was signed by all the members (PW-5 and PW-6 and Ex.2/D-6

Tender Evaluation Committee Report placed at pages from

1/C to 9/C of D-5).

53.TEC held a number of meetings. TEC while evaluating the bids

considered the commercial aspect, pricing, budgetary provisions

Contd....


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54

and requirement of the department (Ms.Shaukat Ara Trimizi,

PW-6). It first examined the rates which were inclusive of all

taxes and levies. Thereafter, they calculated bidding of the

vendors as L.1, L.2 and onwards. L.1 was considered as lowest

tenderer and as per the terms and conditions of the tender 20% to

50% of the quantity was to be allocated to the lowest bidder. If

the allocation, after applying this criteria, exceeded the installed

capacity of the vendor as determined by the Telecom Engineering

Center, the TEC restricted allocation to the vendor to its installed

capacity. However, since vendor may not be in a position to

supply the cables as per its installed capacity, the performance of

the vendor during last six months was seen. In order to arrive at

its annual capacity, the TEC doubled the figures which were

worked out on the basis of six months performance. In case

installed capacity of the firm exceeded its performance, it was

restricted to the performance of the firm.

Contd....


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55

54.The TEC after applying the said guidelines, gave its

recommendation to the competent authority regarding the

quantities to be allocated to various bidders (Pages 1 & 2 of

examination-in chief of PW-10). The TEC Report, Ex.PW-2/D-6

also mentions in detail the guiding factors which were kept in its

mind by the TEC members while recommending the allocation of

cables to each vendor. The same have been mentioned in para 5

under the caption 'Allocation of Quantities.' The relevant portion is

reproduced below:-

5.3 Final Allocation:

(ii) As per para 5 of Section IV of the bid document, order

for 20%-50% of the tendered quantity may be placed on

the technically and commercially responsive bidder whose

price is determined as the lowest but subject to the

manufacturing capacity as ascertained by the purchase.

The manufacturing capacity of the various bidders as

ascertained by the Telecom Engineering Center is given in

Contd....


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56

Annexure VI. However, it is seen that in the past some of

the manufacturers have not been able to supply the full

quantity ordered on them even though their rated

manufacturing capacity was higher. The TEC is,

therefore, of the opinion that for determining the realistic

manufacturing capacity of each bidder, twice its best

performance during the last 6 months period (i.e.October,

1994 to March, 1995) may be taken into

consideration. (Ex.PW-2/D-6, Page 5/C of D-5).

55.The tender as stated above was floated for 352 LCKM, however,

while deciphering the size-wise quantities of different size of

cables in KMs as approved and included in the bid document, the

total LCKM was worked out to 359.29 LCKM. The TEC

recommended the allocation of 178.93 LCKM for the year

1995-96 and 179.05 for 1996-97 to the bidders whose bids were

forwarded to it.

Contd....


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58

(Ex.PW-2/D-7 at page 76/C of D-5) of the TEC Report. Finally,

the TEC in its report, Ex.PW-2/D-6 (placed at page 8/C of D-5)

recommended the allocation of 9.64 LCKM for the year 1995-96

and 17.96 LCKM for the year 1996-97 to HTL.

57.At this stage, it would be pertinent to discuss the manufacturing

capacity of HTL as it is having its relevance in substantiating the

first allegation of abusing the power by accused/Sukh Ram as

public servant in causing undue pecuniary advantage to HTL by

allocating an additional quantity of 3.5 LCKM cables to it. It is

evident from Annexure VI dated 06.03.95, Ex.PW-2/D-5 (placed

at page 25/C of D-5) of the TEC Report which mentions the

production/manufacturing capacity of PIJF Cables manufacturers.

The manufacturing capacity of HTL was 14 LCKM on the date of

opening of tender but it was increased to 24 LCKM in view of the

letter dated 01.06.95 (Ex.PW-28/D-2 at page 26/C of D-20) from

Contd....


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59

Telecommunication Engineering Center to M/s HTL in response

to the letter dated 25.04.95 of the firm. The relevant portion of

the said letter dated 01.06.95 is re-produced below:-

With the addition of these machines the manufacturing

capacity of M/s Haryana Telecom Limited, Rohtak is

considered adequate to manufacture 24 LCKM of PIJF

Cables per annum.

58.Thus, the capacity of M/s HTL to manufacture on the date of

opening of the tender i.e on 24.01.95 was only 14 LCKM and its

capacity to manufacture increased to 24 LCKM from 01.06.95.

59.The report submitted by the TEC was processed in file no.

203-60/94/MMS (Ex.PW-5/1). Since the acceptance of the report

would have taken considerable time, therefore, ad-hoc

procurement of 58.56 LCKM cables was authorized to Telecom

circles and MTNL against cash. Thereafter, there remained the

Contd....


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60

balance of 120.37 LCKM (178.93 LCKM as recommended by

TEC for 1995-96 58.56 LCKM) to be purchased on cash. Since

MTNL had purchased 0.18 LCKM less than its authorized

quantity, therefore, the total requirement for purchase in cash

came down to 120.19 LCKM.

60.It may be mentioned here that the purchase of quantity of 359.29

LCKM against the said tender, as recommended by TEC for the

years 1995-96 and 1996-97 was approved by Member (F),

Member (P) and Chairman Telecom Commission vide their

noting, Ex.PW-2/D-3, PW-13/3 and PW-2/2 respectively (placed

at D-5 at pages 7/N and 10/N). Sh.Joseph, Member (Finance) in

his said note, Ex.PW-2/D-3 (page 7/N of D-5) has categorically

mentioned that recommendation made by TEC for two years was

approved. It reads as follows:-

Contd....


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61

Prices and supplier wise allocation (for two years) as

recommended by TEC approved. Quantity to be procured

in 1995-96 as proposed at P.6 ante.

61.The Member (P) and Chairman of Telecom Commission

concurred with this approval vide said Ex.PW-13/3 and PW-2/2.

Further, the note dated 19.09.95 (Ex.PW-13/D-6 placed at page

11/N of D-5) recorded by Sh.R P Hans also shows that the action

for procurement of only 178.93 LCKM for the year 1995-96, as

recommended by TEC and approved by Member (P), Member (F)

and Chairman Telecom Commission was initiated and processed.

The said note is also reproduced below:-

The case was discussed in the TC Meeting on 15.09.95

pending decision regarding utilization of additional funds

likely to be available on account of license fee from

cellular/basic services---- by private operators, we may

take action for procurement of 178.93 LCKM of PIJF

cables in cash as approved on P/P(5N-9N). Please put up

with supplier-wise-circle-wise details proposed for

placement of POs.

Contd....


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62

62.Accordingly, a chart mentioning the proposed supplier-wise and

circle-wise allocation for the total of 178.93 LCKM cables was

prepared. This allocation included the quantity of 54.74 LCKM

which, on being authorized by the Telecom Communication, was

purchased from these suppliers by different Telecom Circles on

ad-hoc basis against cash. The chart Ex.PW-14/6 was placed in

the file Ex.PW-5/1 (D-5 at page 161/C). Sh.R P Hans, vide his

note dated 26.09.95, Ex.PW-2/D-4 (in D-5 at page 13/N) placed

the proposal before MOS (C) (the accused) for approval of

allocation of the aforesaid quantity i.e. 178.93 LCKM to the

suppliers as approved by the TEC and different Telecom Circles.

63.The accused was not satisfied with the aforesaid proposal for

allocation of 178.93 LCKM of the cables for the year 1995-96 to

those suppliers as their capacity and performance was not taken

Contd....


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63

into account. He returned the file without approval with a

direction to put up the file after working out the allocation to the

suppliers according to the parameters detailed by him in his note

dated 30.09.95, Ex.PW-2/8 (D-5 placed at page 14/N). Since

this order is one of the aforesaid two orders passed by the

accused which facilitated him in alleged commission of offence,

therefore, it is being reproduced hereunder:-

From the perusal of the preceding notes, it has been

observed that the allocation of 178.93 LCKM for the year

1995-96 has been proposed without taking into account

the capacity and performance of the manufacturers.

Barely six months are left now for the supplies to be

effected within the current financial year so as to fulfill this

year's targets, but orders proposed on some firms are far

in excess of their capacity for six months. Further,

supplies are also likely to be pending with the firms from

earlier orders placed in this year. The allocation,

therefore, has to be worked out taking into account firm

wise capacity as on date of opening of the tender, supply

record against last year's allocation, supplies made till

date against orders on deferred payment and ad-hoc

orders placed earlier this year and benefits of tax

Contd....


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64

concession, if any, which is likely to result in savings for

DOT.

The performance of HCL as per statement placed on the

file has not been satisfactory. So they may be given the

quantity as proposed by TEC. The case may please be

put up to me within a week after working out firm wise re-

distribution, taking into account the above facts.

Signature

(Sukhram)

30/9

(emphasis supplied)

64.It would be pertinent to mention here that co-accused/D S

Choudhary had assumed the charge as Chairman of HTL from

September, 1995 as is shown by document no.45 (admitted

document) which is a certified copy of the resolution dated

05.09.95 passed by Board of Directors of M/s HTL. By this

resolution, accused/D S Choudhary was elected as Chairman of

M/s HTL. It has been submitted by ld.Special Public Prosecutor

that due to proximity of accused/Sukh Ram with co-accused/D S

Choudhary, who had by then become Chairman of HTL,

Contd....


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65

accused/Sukh Ram started giving undue dividends in the matter

of allocation of cables to M/s HTL.

65.In compliance to the above order dated 30.09.95, the department

worked out the re-distribution to each vendor in accordance with

the parameters given by the accused. For re-distribution of the

said quantity, a detailed chart, Ex.PW-5/6 (at page 194/C of D-5)

was prepared. Following are the columns of the chart:

(1)Sl.No. (2) Name of the vendor (3) Quantity ordered

(LCKM) in 1994-95 (4) Quantity supplied (LCKM) in

1994-95 (5) % of supply (6) Backlog from 94-95 (7)

Quantity ordered (LCKM) during 1995-96 under deferred

payment (8) Quantity ordered (LCKM) during 1995-96

against cash payment (9) Total quantity ordered (6+7+8)

(10) Quantity supplied from April to September, 1995 (11)

% of the quantity ordered (12) Balance quantity (9-10) (13)

Installed capacity for 12 months at the time of opening of

tender (14) Installed capacity for 6 months at the time of

opening of tender (15) Allocation as per recommendation

of TEC for balance quantity of 120.19 LCKM (16) Overflow

i.e (12+15)-(14), (17) Distribution of overflow (18) Revised

allocation after distribution of overflow.

Contd....


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66.The position of M/s HTL is given below:-

1 2 3 4 5 (%) 6 7 8 9 10 11 (%) 12 13 14 15 16 17 18

13 HTL 9.68 7.11 73.45 2.57 2.37 2.22 7.16 3.67 51.26 3.49 14 7.00 7.42 3.91 0.00 3.51

67.This chart, Ex.PW-5/6 was placed in the file which is at page

194/C of D-5.

68.Sh.Narendra Kumar (PW-14) while giving out the details as to

how the re-distribution had been worked out, recorded the note

dated 18.10.95, Ex.PW-2/D-1 (Page 15/N and 16/N of D-5). In

this note Sh.Narendra Kumar had pointed out that the supply

position of M/s HTL and M/s HCL remained precarious.

Therefore, it was proposed not to award any overflow on them.

The chart and this proposal in file Ex.PW-5/1 (D-5) was submitted

to the accused/Sukh Ram for approval.

Contd....


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67

69.The accused as Minister of Communication vide his order dated

03.11.95, Ex.PW-2/9 (placed at page 17/N of D-5) approved this

proposal which was put up to him but he increased the total

quantity of 120.19 LCKM by 10% to 132.19 LCKM. The reason

given by the accused for this increase was that with that criteria

certain vendors have been adversely affected. Therefore, he

passed the order that the increased quantity of 12 LCKM may, in

view of their performance and effective distribution of overflow, be

distributed amongst five vendors viz. M/s TCL, M/s FINOLEX, M/s

RPG, M/s UBL and M/s HTL. The Minister (accused) by this

order gave 3.5 LCKM to M/s HTL, out of this increased quantity.

Since the prosecution has alleged that there was no justification

to the accused for the allocation of extra quantity of 3.5 LCKM to

M/s HTL especially when its supply position was precarious and it

was not fulfilling its previous commitments and this allocation of

the extra quantity was to cause pecuniary advantage to his co-

Contd....


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68

accused and/or to himself by abusing his official position as a

public servant, therefore, the said order is reproduced, as under:-

It has been observed that SIIL has been proposed

allocation of 11.28 LCKM in the distribution of the total

overflow of 15.85 LCKM. With a view to be fair with the

firms which have been affected by the application of

criteria detailed in the preceding notes, the total quantity of

120.19 LCKM may be increased by about 10% to 132.19

LCKM. The increased quantity of 12 LCKM may,

therefore, be distributed amongst the following firms in

view of their performance and effective distribution of theoverflow:-

LCKM

TCL 1.0

FINOLEX 4.0

RPG 2.0

UBL 1.5

HTL 3.5

TOTAL 12.0

The proposal submitted is approved with above

modification.

The total quantity required for the revised targets and

additional cable required for maintenance and planning

purpose is 387 LCKM. After issue of this order as

Contd....


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69

approved, action may be taken for procurement of balance

quantity, the allocation for which may be worked out early

and put to me by 30th

November, 1995 for approval.

Signature

03/11/95

(SUKH RAM)

70.The said order passed by the accused was complied with by the

department immediately. Accordingly, a Letter of Intent,

Ex.PW-5/10 (placed at page 235/C of D-5) for procurement of a

quantity of 9.23 LCKM (2.22 LCKM ad-hoc purchase + 3.51

LCKM recommended by the department + 3.5 which was

increased by the accused) of cables was issued to M/s HTL.

71.It has been submitted by the prosecution that Sh.R P Hans in the

note dated 26.09.95, Ex.PW-2/D-4 recorded that because of

revised requirement, a total quantity of 387.15 LCKM was worked

out for the year 1995-96 for procurement. He also noted that

TEC had recommended that 173.93 LCKM might be purchased

on cash basis for 1995-96 and this proposal had been approved

Contd....


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70

by Member (P), Member (F) and Chairman (TC). As desired by

the Chairman (TC) he put up this note along with chart

(Ex.PW-14/6 placed at page 161/C of D-5) showing supplier

wise allocation of this quantity placed before the accused for

approval. The accused did not approve the allocation of 178.93

LCKM to the various vendors as proposed by the department. He

was of the view that the department, in its said proposal, had not

taken the realistic view in the allocation of the cable to various

vendors, which had been done without taking into consideration

their capacity to supply the quantity allocated to them, especially

when only six months had been left in the said financial year to

purchase the said quantity of cable. Therefore, he passed the

order dated 30.09.95, Ex.PW-2/8.

72.According to prosecution, the Minister (accused) in his note had

laid much stress to find out the capacity of the vendors to supply

Contd....


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71

the cable within the stipulated period of six months, therefore, he

laid down the parameters/formula to be adopted to find out the

capacity of each vendor to supply the cable. The accused in

cross-examination of the witnesses have tried to elicit from them

that despite the fact that there was no basic difference in formula

adopted by both the TEC and the parameters set by the accused

to find out the capacity of the vendors to supply the cables, the

department could have managed to propose lesser quantity for

allocation to HTL than what was proposed by TEC. The

Ld.Special Public Prosecutor has submitted that there were

certain differences between the criterions/parameters adopted by

TEC and the parameters as laid down by the accused, which

resulted in the allocation of lesser quantity to HTL. Following

were the main differences:-

i)TEC, in order to find out the capacity of each vendor to

manufacture, had taken into consideration the

manufacturing capacity of each vendor as mentioned in

Contd....


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72

the details given in Annexure VI (Ex.PW-2/D-5 placed at

page 25/C of D-5) to the TEC report issued by

Telecommunication and Engineering Center dated

06.03.95. It may be mentioned here that manufacturing

capacity of M/s HTL, on the date of opening of the tender,

was 14.00 LCKM but was increased to 24.00 LCKM from

01.06.95, and similarly in the case of M/s Bhagyanagar

Metals Ltd. (BML) it was 9.30 but increased to 16 LCKM

from 27.03.95 (Ex.PW-2/D-5 placed at page 25/C of D-5).

The TEC while allocating the quantities of cables to

various vendors took into consideration their enhanced

manufacturing capacity only which had increased in

between the dates of opening of tenders and finalization of

tenders by it, whereas the accused had directed the

department to take into account the manufacturingcapacity of each vendor which was in existence as on the

date of opening the tenders i.e. 24.01.95.

ii)TEC, in determining the yearly manufacturing capacity of

each vendor, calculated the same on the basis of twice of

its best performance during the last six months from

October, 1994 to March, 1995, while the department in

working out the allocation to be made to various vendors,as per aforesaid order of the accused, took into account

the supply performance of the vendors during the first six

months of 1995-96 i.e from 01.04.95 to 30.09.95.

iii)TEC worked out the allocation of cable to each vendor

for the year 1995-96 on the basis of the supplies made by

them in the last six months of 1994-95 against the tender

of the last year on cash payment, while as per the said

order of the accused, the department, in order to work out

Contd....


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73

the allocation of cable for the remaining six months, had

taken into account the supply record of each vendor

against last year's allocation and supplies made till date

i.e. 30.09.95 against the orders on deferred payment and

ad-hoc orders placed earlier in the year. Here, it may be

pointed out that the department, in order to ascertain the

supply position of each vendor, took into consideration the

supplies made by the vendors against the deferred

payments only on the said order of the accused.

73.Therefore, the parameters adopted by TEC and the department

as per the orders of the accused were different, therefore, the

results were bound to be different due to the facts as mentioned

above in detail. It may be mentioned that said parameters were

applied not only to M/s HTL but to other vendors also in order to

find out their realistic capacity to supply the cables within the

stipulated time of six months.

74.It has been submitted by the ld.Special Public Prosecutor that the

note dated 30.09.95 seems to be very innocuous and at first

Contd....


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74

glance it appears to be an outburst of a Minister who was feeling

so much worried as to how this much of quantity (178.93 as

recommended by TEC and the rest of the quantity which had

been increased because of enhanced target) could be procured

within such a short period of six months. He has submitted that in

his note there appeared a sense of frustration on the part of

accused/Sukh Ram with the working of his department which,

without taking into account the past performance of the vendors,

recommended for the allocation of that much quantity of cable for

supply, which they were not capable to accomplish and that was

why the accused had ordered the department to work out the

quantity to be re-allocated to the each vendor according to their

performance. The last line of his note would show his anguish on

this issue as if he wanted the department to allocate that much of

quantity to the vendors which they were in a actual position to

supply. The Ld.Special Public Prosecutor has argued that

Contd....


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75

however, the future events would show that this order which, on

its face, appeared to be innocuous, was passed with an oblique

motive and to put the vendors in a sense of fear and doubt that

they might not get even that quantity which they otherwise could

have got and thus by this order he opened a floodgate for the

unscrupulous vendors to approach him to cause them undue

advantage for consideration.

75.As discussed above, the department worked out the quantity to

be allocated to all the vendors in accordance with the

parameters/guidelines set out by the accused and prepared a

chart in a tabular form which is Ex.PW-5/6 and placed in the file

(Ex.PW-5/1) at page 194/C (D-5). Sh.Narendra Kumar, while

submitting the chart, in his note dated 18.10.95, Ex.PW-5/7 noted

that 'the supply position of M/s HTL and M/s HCL remain

precarious.'

Contd....


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76

76.The ld.Special Public Prosecutor has argued that if procurement

of cable, as seen from the note dated 30.09.95, was the urgent

need of the hour which was hovering in the mind of accused

when he passed said order, then why accused, despite knowing

the precarious supply position of M/s HTL which was apparent

from the said chart and the note of Sh.Narendra Kumar, allocated

a quantity of 3.5 LCKM to M/s HTL in addition to the proposed

allocation of 3.51 LCKM to it by the department?

77.He has further argued that the accused, vide his note dated

03.11.95 marked as Ex.PW-2/9, in place of allocating the

quantities as proposed by the department to various vendors in

order to accomplish the object or urgent supply of the cables,

increased the total quantity by 10% from 120.19 LCKM to 132.19

LCKM and thus, one fails to comprehend as to how the said

Contd....


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77

increase in quantity would have facilitated the accused in getting

quick supply within the period of six months. He has submitted

that on the contrary this order would have further delayed the

supply of the cables as by this order accused increased the

allocation of cable to the vendor whose track record of supply was

very poor.

78.He has further submitted that there was no need for the accused

to increase the quantity of 120.19 LCKM by 10% and thus it is

difficult to understand as to how this step in increasing the

quantity would have helped the department in achieving the target

of supply of cables as recommended by the TEC for the year

1995-96 as also the enhanced quantity. The reason for this

increase which was given by accused in his words was 'with a

view to be fair with the firms which have been affected by the

application of the criteria detailed in the preceding note, the total

Contd....


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78

quantity of 120.19 LCKM may be increased by about 10% to

132.19 LCKM. The so increased quantity of 12 LCKM may,

therefore, be distributed in view of their performance and

effective distribution of the overflow.' (emphasis given). This is a

flimsy ground in view of poor supply performance by M/s HTL.

79.The evidence recorded during trial suggest absolutely a different

reason for recording the note dated 03.11.95. Ld.counsel for the

defence while cross-examining Sh.A K Jhedke (PW-5) elicited

from him that if the percentage of supply is calculated on the

basis of actual orders placed on HTL by 30.09.95, the percentage

given in the chart would be incorrect. It is wrong to suggest that

somehow the accused came to know the mistakes which we

committed while preparing Ex.PW-5/6 and vide his note dated

03.11.95, Ex.PW-2/9, he recorded the minutes to partially correct

that mistake (page 11 of cross-examination dated 10.07.02).

Contd....


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79

This suggestion suggests that the reason for increase in the

quantity and allocation of additional quantity of 3.5 LCKM to M/s

HTL by the accused was not that the injustice had been caused to

M/s HTL because of the criteria laid down by the accused. In fact

no injustice was caused to M/s HTL in allocating a quantity of

3.51 by the department on the basis of its performance. On the

contrary, it (HTL) got undue pecuniary advantage from the order

dated 03.11.95 passed by the accused.

80.Accused/Sukh Ram has come up with an absolutely different

version in his statement u/s 313 Cr.PC. In reply to the question

no.32, he has stated 'that the cable manufacturers supplying the

cable had no market outside the Department of

Telecommunication. Therefore, a policy was adopted so that no

cable manufacturer had to close down its manufacturing business

for the proportionate distribution of the overflow amongst all to

Contd....


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80

ensure that all manufacturers could get their share of business

and avoid any closing down of their manufacturing business.' The

Ld.Special Public Prosecutor has argued that if it was the object

of the accused behind the said order to increase the quantity,

then there was no justification for the accused to lay down the

guidelines in his order dated 30.09.95 which was to affect M/s

HTL adversely. He further submitted that if this was real object, it

would have been mentioned in the said order dated 03.11.95.

81.In this regard court can not loose sight as to what the accused

said in statement u/s 313 Cr.PC. In reply to the question no.174,

he has stated that 'I acted on and with the aid and advice of the

officials of my department and not taking decision on my own.'

But the record does not support his assertion. On the contrary,

he acted much against the advice of the department. The

department had pointed out the precarious supply position of M/s

Contd....


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81

HTL. Had he acted on the advice of the department he would

have allocated only 3.51 LCKM, as suggested by the department,

in view of supply position of M/s HTL and the additional quantity

of 3.5 LCKM, would not have been allocated to it.

82.The accused, before passing the order dated 03.11.95, whereby

he increased the quantity by 10% did not consult even Sh.R K

Takkar, Chairman of Telecom Commission nor he got its financial

implication examined. This fact is evident from statement of Sh.R

K Takkar, which he gave when he was examined in court as

PW-2. According to this witness ideally the quantity should not

have been increased and if increased it should have been

distributed on pro-rata basis amongst all the approved bidders.

To a question put by the court as to whether extra quantity could

have been allocated to a vendor beyond his assessed capacity,

he replied that no quantity should have been allocated to any

Contd....


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vendor beyond his assessed capacity to supply.

83.It has been argued by ld.counsel for accused/Sukh Ram that no

fault can be found with the order of the accused as M/s HTL was

adversely affected party because of the criteria laid down by

accused in his order dated 30.09.96 (Ex.PW-2/8). He has

advanced his submission based on the reasoning that TEC had

allocated a quantity of 9.64 LCKM but by adopting the parameter

set out in his said order dated 30.09.95, the department worked

out only a quantity of 3.51 LCKM and, therefore, the accused, in

order to compensate the loss to be suffered by this vendor, being

an affected party, allocated an additional quantity of 3.5 LCKM, so

that this vendor could get the allocation of a total quantity of 9.23

LCKM (2.22 LCKM against ad-hoc purchase + 3.51 LCKM

recommended by the department + 3.5 LCKM additional quantity

allocated by the accused = 9.23 LCKM). According to the

Contd....


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83

ld.counsel for accused that M/s HTL still remained in a loss of

0.41 LCKM. One fails to understand as to how this argument of

ld.counsel for the defence would help him in rebutting the

contention of the prosecution and the charge framed by this court

that by passing the order dated 03.11.95 the accused, being a

public servant, committed criminal misconduct by obtaining

pecuniary advantage for M/s Haryana Telecom Limited by corrupt

or illegal means, or by abusing his position as a public servant by

additional allocation of 3.5 LCKM of PIJF cables to M/s HTL.

84.The Ld.Special Public Prosecutor has then submitted that

assuming the submission of ld.counsel for the defence as correct

one for the sake of argument, there were a number of other

vendors also who were adversely affected by the criteria laid

down by the accused but there was no increase in their allocation

of cables which was worked out by the department. He has

Contd....


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drawn attention of the court that Sh.R P Hans (PW-28), in his

cross-examination dated 27.09.06 at page 3, has stated that

'based on the criteria given by the Minister the revised allocation

was reduced in respect of certain firms as compared to the

allocation recommended to them by the TEC. The firms are M/s

TTL; TCL; CMI; UPCOM; BML; HTL; TRACO, BEOL and

DELTON, as is evident from Ex.PW-5/6' (194/C of D-5). But

none of them except M/s HTL and M/s TCL were benefited.

Therefore, I am of the view that the contention of the ld.counsel

for defence that the accused allocated additional quantity of 3.5

LCKM PIJF Cables to M/s HTL as it was the affected vendor and

so he wanted to compensate it, has no force.

85.The ld.counsel for the defence has further argued that it was the

condition of the tender, Ex.PW-1/1 as contained in Section IV

para 5 that order for 20-50% of the tendered quantity may be

Contd....


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Documents

Sukh Ram-HTL Bribery Case Judgement