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IN THE COURT OF SH. BHARAT PARASHAR, SPECIAL JUDGE
(PC ACT) (CBI)-7, NEW DELHI DISTRICT
PATIALA HOUSE COURTS, NEW DELHI
Case ID No. 02403R0053472014
C.C. No. 04/14
RC No. 219 2012 E 0016
Branch: CBI/EO-1/EO-II, New Delhi
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors.
U/s. 120-B IPC, 409/420 IPC,
Sec. 13 (1) (c)/ 13 (1) (d) P.C. Act 1988,
120-B IPC r/w Section 409/420 IPC &
Sec. 13 (1) (c)/ 13 (1) (d) P.C. Act, 1988
Date of order on cognizance : 13.10.2014
Date of framing of charge : 14.10.2015
Date of final arguments : 08.03.2017
Date of judgment : 19.05.2017
In re:
Central Bureau of Investigation (CBI)
Vs.
(1) M/s Kamal Sponge Steel & Power Ltd.
17, Bandhavgarh Colony, Satna,
Madhya Pradesh - 485001
Through AR Sh. Ankit Gandhi (Convicted)
(2) Pawan Kumar Ahluwalia S/o
Late Dr. D.S. Ahluwalia
R/o Plot No. 1, Bandhav Garh Colony,
Satna, Madhya Pradesh (Convicted)
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 1 of 350
(3) Amit Goyal S/o Sh. N.N. Goyal
R/o H.No. 141, Vidhyut Nagar-A,
Ajmer Road, Jaipur, Rajasthan (Acquitted)
(4) Harish Chandra Gupta
S/o Late Shri Kishan Lal Gupta,
R/o 377, Sector 15-A, NOIDA-201301,
Uttar Pradesh (Convicted)
(5) K.S. Kropha
S/o Late Sh. Sukh Das Kropha
R/o Circuit House Complex,
Kenche's Trace, Laban,
Shillong-793004, Meghalaya (Convicted)
(6) K.C. Samria
S/o Sh. G.L. Samria,
R/o H. No. 81, Rabinder Nagar,
New Delhi-03 (Convicted)
APPEARANCES
Present : Ld. Senior Advocate, Sh. R.S. Cheema, Special P.P.,
alongwith, Ld. DLA, Sh. V. K. Sharma, Ld. Senior P.P.,
Sh. A.P. Singh, Ld. Senior P.P., Sh. Sanjay Kumar
and Advocate Ms. Tarannum Cheema for CBI.
Ld. Counsel Sh. Pavan Narang for A-1, M/s KSSPL
and A-2 Pawan Kumar Ahluwalia.
Ld. Counsel Sh. Sushil Bajaj for A-3 Amit Goyal,
Ld. Senior Advocate Sh. Mohit Mathur with
Ld. Counsels Sh. B.S. Mathur and Sh. Rajat Mathur for
A-4 H.C. Gupta and A-5 K.S. Kropha and Ld. Counsels
Sh. Percivel Billimoria and Sh. Vikram Singh for
A-6 K.C. Samria.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 2 of 350
JUDGEMENT
1. The present case pertains to allocation of Thesgora-B/ Rudrapuri coal block in favour of M/s Kamal Sponge Steel & Power Ltd. (hereinafter referred to as M/s KSSPL) by Ministry of Coal (MOC), Government of India.
2. Briefly stated the necessary facts of the prosecution case are as under:
In November 2006, Ministry of Coal (MOC), Government of India issued an advertisement inviting applications for allocation of 38 Coal Blocks for captive coal mining from companies engaged in generation of power, production of iron and steel and production of cement. The advertisement stated that out of 38 Coal Blocks, 15 Coal Blocks were earmarked for power sector and 23 Coal Blocks were earmarked for non-power sector i.e iron steel and cement. The companies which were registered under Indian Companies Act, 1956 were given liberty to apply for one or more of such Coal Blocks. The application form to be filled up, documents to be enclosed, coal blocks on offer or other guidelines as to how the applications shall be processed or the factors on which inter-se priority may be decided from amongst competing applicant companies were all made available on the website of MOC i.e. www.coal.nic.in. The applications were to be submitted in five copies.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 3 of 350
3. The applications were also to be accompanied with a demand draft of Rs. 10,000/- beside other documents as were asked for in the detailed guidelines. The application form also required the applicant companies to submit various details about their company or the end use project if already established by them or likely to be established by them regarding which Coal Block allocation was sought for. The companies were required to mention their turnover (in crores) of the last three preceding years beside mentioning the profit earned (in crores) in the last three years and the net worth (in crores) as on 31.03.2006. The details of the proposed end use project viz. the existing capacity, if any, alongwith proposed capacity of the project and the ultimate capacity (total) and "ROM Coal" requirement were also required to be mentioned. Various other details regarding the status of the end use project with respect to land, water, equipments, civil construction, finance etc. and also the clearances which were already obtained or were applied for were also required to be mentioned. The details of the investment already made or proposed to be made were also required to be mentioned in the application form.
4. As regard coal blocks reserved for companies engaged in non-power sector, MOC received about 674 applications from 184 companies. As regard Thesgora-B/Rudrapuri coal block 10 applications including that of M/s KSSPL were received. The application of M/s KSSPL (Accused No. 1) dated 04.01.2007 was signed by its authorised signatory/Director namely Pawan Kumar CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 4 of 350 Ahluwalia (Accused No. 2) and was submitted to MOC on 09.01.2007 [About 748 applications were received by MOC for 19 coal blocks reserved for companies engaged in power sector]. While 35th Screening Committee dealt with applications received for allotment of coal blocks reserved for companies engaged in power sector, 36th Screening Committee however considered applications for 23 coal blocks as were reserved for companies engaged in non-power sector.
5. As per the procedure provided in the guidelines for processing of applications, four copies of all the applications were sent to Administrative Ministries (Ministry of Steel in the present case), Central Mine Planning & Design Institute Limited, (CMPDIL) and the State Governments concerned where the various Coal Blocks applied for or the end use projects were situated or were proposed to be established (State of Madhya Pradesh in the present case) for their views and comments. Upon receipt of views and comments from State Governments and the Administrative Ministries etc., the applications were then referred to 36th Screening Committee. The Screening Committee as was constituted by Government of India was given the task of screening the claims of various applicant companies and to thereafter make recommendation for allotment of various Coal Blocks in favour of different eligible companies. The 36th Screening Committee thus conducted five meetings on 07.12.2007, 08.12.2007, 07.02.2008, 08.02.2008 and 03.07.2008 to consider applications qua coal blocks reserved for companies engaged in non-power sector. The Screening Committee CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 5 of 350 also gave all the applicant companies an opportunity to present their case before it beside also requiring them to fill up a feedback form, titled "Latest Status of End Use Project". The format of the feedback form was also uploaded on the website of MOC. The applicant companies were supposed to fill-up the said feedback form and were to submit the same to Screening Committee in 25 companies at the time of making presentation.
6. On 08.12.2007 one Amit Goyal (Accused No.3) who was the Chartered Accountant of A-1 M/s KSSPL appeared for presentation before the Screening Committee (However as per A-3 Amit Goyal no presentation was in fact made and no feedback form was submitted as A-2 Pawan Kumar Ahluwalia failed to turn up before the Screening Committee). Subsequently, the Screening Committee in its meeting held on 03.07.2008 recommended allocation of 23 Coal Blocks earmarked for non-power sector in favour of different applicant companies. Thesgora-B/Rudrapuri Coal Block was however recommended being allotted jointly in favour of two companies i.e. A- 1 M/s KSSPL and M/s Revati Cement Pvt. Ltd.
7. However, after some time a lot of hues and cry came to be raised in the public alleging that Coal Blocks have been allotted by Government of India not only illegally but in furtherance of a criminal conspiracy entered into by different applicant companies and the MOC officers beside the Screening Committee members. Central Vigilance Commission thus chose to look into the entire allocation process as there were large number of allegations of corruption CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 6 of 350 against the public servants involved. After examining various files of allocation of Coal Blocks, the Central Vigilance Commission made a reference to CBI to investigate into the allegations of alleged corruption by the public servants in the matter of allocation of Coal Blocks to private companies during the period 2006-2009.
8. On the basis of said reference a preliminary enquiry was instituted on 01.06.2012 by CBI with respect to allocation of various coal blocks including Thesgora-B/Rudrapuri Coal Block to A-1, M/s KSSPL. During the course of said preliminary enquiry, the CBI prima facie found an element of truth in the allegations of corruption in the allocation of impugned Coal Block to A-1 M/s KSSPL warranting further investigation. Accordingly an FIR was registered on 13.10.2012 against A-1 M/s KSSPL and others including unknown public servants for the offences punishable u/s 120B r/w Section 420 IPC and Section 13 (1) (d) r/w Section 13 (2) of the Prevention of Corruption, Act 1988. The investigation of the case was carried out by IO DSP Sanjay Dubey. However upon completion of investigation a closure report was filed in the Court stating that no offence was found to have been committed either by A-1 M/s KSSPL or by its directors or by any public servant.
9. At this stage, it will be worthwhile to mention that during the course of investigation it was however found by CBI that A-1 M/s KSSPL in its application submitted for allocation of Thesgora- B/Rudrapuri Coal Block not only furnished false information with regard to their financial strength i.e. net-worth but also as regard the CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 7 of 350 existing capacity of their end use project. It was submitted that in its application A-1 M/s KSSPL had mentioned its net-worth for the year 2004-05 and 2005-06 as Rs. 40.40 crores and Rs. 64.75 crores respectively. However, as per the documents filed by the company with the Registrar of Companies, the actual net-worth of the company for these two financial years was found to be Rs. 16.54 crores (approx.) and Rs. 26.75 crores respectively. It was also found that the company M/s KSSPL had also not filed its Audited Annual Accounts/Reports for the year 2005-06 alongwith its application even though as per the guidelines issued by MOC while inviting applications for allocation of Coal Blocks. Audited Annual Accounts/ Reports for the past three years i.e. 2005-06, 2004-05 and 2003-04 were to be filed alongwith the application. Thus, it was found that while no Annual Account/Report for the year 2005-06 was at all filed by company A-1 M/s KSSPL much less audited but even as regard the year 2004-05 also only provisional balance sheet was filed instead of the audited balance sheet. As regard the year 2003-04 the audited balance sheet of "Ahluwalia Mining Ltd." was however filed. [The name of company "Ahluwalia Mining Ltd." was subsequently changed to "Kamal Sponge Steel & Power Ltd." (KSSPL)]. The company had however also filed audited balance sheet for the year 2002-03 and 2001-2002 of "Ahluwalia Mining Ltd.".
10. It was also found during the course of investigation that the balance sheet of A-1 M/s KSSPL for the financial year 2004-2005 was signed by its Board of Directors on 01.09.2005 and was duly CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 8 of 350 audited by M/s Amit Goyal & Company, Jaipur, the Chartered Accountants. The audited balance sheet was subsequently adopted by the share holders of A-1 M/s KSSPL in their annual general meeting held on 30.09.2005 and was filed with the office of Registrar of Companies, Jaipur on 25.11.2005. As regard the balance sheet for the year 2005-2006, the same was found to have been signed by the Board of Directors on 02.09.2006 and it was also audited by M/s Amit Goyal & Company, Jaipur vide their audit report dated 02.09.2006 itself. It was subsequently adopted by the share holders of A-1 M/s KSSPL in their annual general meeting held on 30.09.2006 and was thereafter filed with the office of Registrar of Companies, Jaipur on 16/17.01.2007. It was also found that as per the audited balance sheet for the year 2005-06 the net-worth of the company as on 31.03.2006 was only Rs. 26.75 crores (approx.) and not Rs. 64.75 crores as was mentioned in their application.
11. A-2 Pawan Kumar Ahluwalia, the Director of A-1 M/s KSSPL who had signed the application of the company was thus found to have falsely stated about the net-worth of the company in the application as was submitted to MOC and he also did not attach the audited balance sheets for the past three years as was required by the guidelines issued by MOC.
12. It was also found during the course of investigation that there was discrepancy even as regard the annual production capacity of the company as mentioned in the application form at point No. 26. However, it was stated by the IO, that as per the practice being CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 9 of 350 followed by the office of "District Trade and Industry", Satna, Madhya Pradesh with whom the company used to submit their annual installed capacity statement, the annual turnover used to be calculated by considering a figure of 300 working days of any company in a given year. It was however stated that during the course of investigation it was found that the company M/s KSSPL remained in operation for 337 and 335 days respectively during the financial year 2005-2006 and 2006-2007 and thus excess production for 37 and 35 days respectively in the two financial years was also accounted for in the figures mentioned in the application. It was also stated that no logical reasoning could be found as to why a period of 300 days used to be only considered for ascertaining the annual production capacity and not the actual number of days for which the company remained under operation.
13. As regard the role of public servants involved i.e. officers of MOC, it was stated that the applications so received in MOC including that of A-1 M/s KSSPL could not be checked for their eligibility and completeness in MOC in terms of the guidelines governing allocation of coal blocks as were issued by MOC due to shortage of manpower. It was further stated in the closure report that this fact of shortage of man power and their consequent inability to check such a large number of applications so received was found to be justified. It has also been stated that even the Screening Committee members did not enquire as to whether the applications have been checked regarding their completeness or eligibility or not CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 10 of 350 as they were not concerned with the said facts. It was also found during the course of investigation that the recommendations of Screening Committee were mainly based upon the recommendations of administrative Ministry, State Governments, financial and technical capabilities of applicant companies, techno-economic feasibility of end use projects, state of preparedness to set up the end use projects etc. However it was further stated in the closure report that no minimum threshold was prescribed for eliminating/qualifying any company on any of the above said factors including net-worth or preparedness etc. It was also mentioned that in the minutes of the Screening Committee also no deliberation could be found on any of these aspects.
14. It was in these circumstances concluded by IO DSP Sanjay Dubey that no cogent evidence could come to light which could prove that any wrongful gain was caused to the accused company in allocation of impugned Coal Block. As regard submitting the aforesaid false data regarding its net-worth or production capacity, it was stated that the Ministry of Steel which was the administrative Ministry also did not consider the net-worth of the company for making their recommendation and the fact as to whether the company having existing capacity of 87,000 MTPA or 1,00,000 MTPA would not have made any difference as Ministry of Steel would have classified them in the same category. The final report also stated that during investigation no evidence could emerge to establish that task of checking of applications as regard their completeness and CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 11 of 350 eligibility was not undertaken by the officers of MOC pursuant to any criminal conspiracy with any of the applicant companies including the accused company. No offence was thus found to have been committed either by A-1 M/s KSSPL or its Directors or even by any of the public servants involved in the entire coal block allocation process.
15. However vide a detailed order dated 13.10.14, this Court disagreed with the conclusion so drawn by the CBI and ordered summoning of all the accused persons for the offences u/s 120- B/409/420 IPC. Accused H.C. Gupta (A-4) was however also summoned for the offence u/s 13 (1) (d) P.C. Act. It was further observed therein that cognizance of the offence u/s 13 (1) (d) P.C. Act could not be taken against accused K.S. Kropha and K.C. Samria for want of sanction u/s 19 P.C. Act. However subsequently on the request of prosecution the matter was referred vide order dated 30.10.2014 for further investigation to CBI u/s 173 (8) Cr.PC with the direction that during the course of further investigation CBI shall place before the Competent Sanctioning Authority, the records of the case so as to consider according of sanction u/s 19 P.C. Act to prosecute the two public servants i.e. K.S. Kropha and K.C. Samria for the offences under P.C. Act. Accordingly during the course of further investigation, CBI sent the records of the case to the competent authority. The competent authority thereafter accorded sanction u/s 19 P.C. Act to prosecute both accused K.S. Kropha and K.C. Samria for the offence u/s 13 (1) (d) P.C. Act and also for any other offences CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 12 of 350 punishable under other provisions of law in respect of the acts mentioned in the sanction order. Accordingly vide order dated 28.07.15 cognizance of the offence u/s 13 (1) (d) P.C. Act was taken against accused K.S. Kropha (A-5) and K.C. Samria (A-6) also and cognizance of the offence u/s 120-B IPC r/w S. 13 (1) (d) P.C. Act was also taken against all the accused persons.
16. After all the accused persons put in their appearance copies of the charge sheet were supplied to them. After due compliance of S. 207 Cr.PC. extensive arguments on the point of charge were heard. Subsequently vide a detailed order dated 01.10.2015 charge for various offences as mentioned in the table below were framed against the various accused persons on 14.10.2015.
CHARGES FRAMED
(I) (II)
S.No Name of accused Charges Common to all Charges
separately
framed
1 A-1 M/s KSSPL (i) 120-B IPC
(ii) u/s 120-B IPC r/w Sec. 409/420 IPC 420 IPC
and Section 13 (1) (c) and 13 (1) (d)
P.C. Act, 1988
2 A-2 Pawan Kumar (i) 120-B IPC
Ahluwalia
(ii) u/s 120-B IPC r/w Sec. 409/420 IPC 420 IPC
and Section 13 (1) (c) and 13 (1) (d)
P.C. Act, 1988
3 A-3 Amit Goyal (i)120-B IPC
(ii) u/s 120-B IPC r/w Sec. 409/420 IPC 420 IPC
and Section 13 (1) (c) and 13 (1) (d)
P.C. Act, 1988
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 13 of 350 4 A-4 H.C. Gupta (i) 120-B IPC (i) Sec. 409 IPC
(ii) u/s 120-B IPC r/w Sec. 409/420 IPC (ii) 13 (1) (c) / and Section 13 (1) (c) and 13 (1) (d) 13 (1) (d) P.C. Act, P.C. Act, 1988 1988 5 A-5 K.S. Kropha (i) 120-B IPC 13 (1) (d) P.C. Act,
(ii) u/s 120-B IPC r/w Sec. 409/420 IPC 1988 and Section 13 (1) (c) and 13 (1) (d) P.C. Act, 1988 6 A-6 K.C. Samria (i) 120-B IPC 13 (1) (d) P.C. Act,
(ii) u/s 120-B IPC r/w Sec. 409/420 IPC 1988 and Section 13 (1) (c) and 13 (1) (d) P.C. Act, 1988 All the accused persons however pleaded not guilty to the charges so framed against them and claimed trial.
17. Prosecution thereafter in order to prove its case examined 18 witnesses. Statement of accused persons were thereafter recorded u/s 313 Cr.PC. A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia however also submitted their written statements u/s 313 (5) Cr.PC. Accused persons also thereafter examined 13 witnesses in their defence. Detailed final arguments in the matter were thereafter heard as were addressed by Ld. Sr. P.P. Sh. V.K. Sharma on behalf of prosecution and by Ld. Counsel Sh. Pavan Narang for A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia. Ld. Counsel Sh. Sushil Bajaj for A-3 Amit Goyal, Ld. senior Advocate Sh. Mohit Mathur for A-4 H.C. Gupta, Ld. Counsel Sh. B.S. Mathur for A-5 K.S. Kropha and Ld. Counsel Sh. Percivel Billimoria for A-6 K.C. Samria.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 14 of 350
18. Written submissions were also filed by all the accused persons.
19. Thus in the aforesaid factual matrix before adverting further it will be worthwhile to give a brief reference of the deposition of various prosecution witnesses and defence witnesses so examined in the present trial.
PROSECUTION WITNESSES (PWs) PW No. Name and designation Deposition/Role of the witness in the of the Witness present case.
PW-1 S P Rana, Dy. SP, CBI, CBI officer who was initially entrusted with EO-II, New Delhi the preliminary enquiry No. 219 2012 E 0002 registered by CBI with respect to coal block allocation matters. He collected various files/documents from MOC during the course of PE and deposited them in Malkhana EO-I, CBI.
PW-2 S. Ramanathan, Public independent witness in whose Divisional Manager, presence various documents/files were Canara Bank, Vigilance seized by PW 1 Dy. SP S.P. Rana from the Wing, Bangluru MOC office, Shastri Bahwan.
PW-3 Prashant Ahluwalia He was one of the Directors of A-1 M/s KSSPL alongwith A-2 Pawan Kumar Ahluwalia. He identified his own signatures and that of A-2 Pawan Kumar Ahluwalia on various balance sheets and other documents of the company. He also identified signatures of A-2 Pawan Kumar Ahluwalia on various pages of application Ex.PW1/F (colly) (D-10) and stated that day to day affairs of A-1 M/s KSSPL were being dealt with by A-2 Pawan Kumar Ahluwalia only.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 15 of 350 PW-4 Ramesh Kumar Meena, During the course of investigation he Registrar of Companies provided certified copies of Memorandum Cum Official Liquidator, of Association, Articles of Association, Rajasthan, Jaipur Certificate of incorporation of A-1 company M/s KSSPL beside also providing audited balance sheets for the year 2003-04, 2004-05 and 2005-06 and other necessary forms as were filed by A-1 M/s KSSPL with their office over a period of time.
PW-5 Ram Naresh, Under He was Under Secretary, MOC during the Secretary, Ministry of period June 2009 till October 2014. He Agriculture, Govt of had handed over various documents/files India, New Delhi relating to coal block allocation matters to PW 1 Dy.SP S.P. Rana during the course of preliminary inquiry registered by CBI.
PW-6 Ved Prakash Sharma, He was also working as Section Officer Retired Section Officer, CA-1 section, Ministry of Coal from CA-1, Section, Ministry October 2007 till 30.06.2013. He was of Coal however dealing with matters relating to allocation of coal blocks to Government companies. In the year 2012 he had handed over various files/ documents of MOC to PW 1 Dy. SP S.P. Rana CBI and who seized them vide various production-
cum-receipt memos during the course of preliminary inquiry registered by CBI.
PW-7 Awadhesh Pratap Singh, He deposed about the procedure of General Manager, issuance of production certificate to any District Trade and industry by their department and that the Industries Centre, Satna, said production certificates also contained M.P. the date of commencement of production and the annual installed capacity of the unit. He also deposed about the standard criteria adopted by the department of calculating the installed capacity of any company on the basis of 300 working days in a year. He also proved certificate of commencement of production dated 16.10.2003 as issued to A-1 company M/s KSSPL for total sponge iron production capacity of the company as 57000 MTPA CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 16 of 350 and certificate dated 15.07.2005 for total sponge iron production capacity as 87000 MTPA.
PW-8 Dr. P.S. Sharma, Chief He proved the sponge iron production Chemist, Madhya capacity of A-1 M/s KSSPL as mentioned Pradesh Pollution in order of consent to establish or consent Control Board, to operate issued by their department Regional Office Rewa. under Water (Prevention & Control of Pollution), Act 1974 period of time i.e. from the year 2000 till 2013.
PW-9 Sewa Ram, Retired He deposed about the manner in which Principal Secretary, govt the applications received by Govt of MP of Madhya Pradesh from MOC seeking allocation of captive coal blocks were processed by Govt of MP. He also stated that qua Thesgora-
B/Rudrapuri Coal block, Govt of MP had recommended the name of M/s BLA Power Ltd. He also stated that during 36th Screening committee meeting held on 07.02.2008 he had handed over the recommendation letter of Govt of MP qua various coal blocks in favour of different applicant companies to Secretary Coal and Chairman Screening Committee i.e. A-4 H.C. Gupta.
PW-10 Rajneesh Mohan Singh, He proved the sanction for prosecution of
Dy. Secretary Ministry of A-5 K.S. Kropha and A-6 K.C. Samria as
Science and Technology was granted by the competent authority
GOI under section 19 PC Act, 1988.
PW-11 S. K. Mishra, Principal He attended the 36th Screening
Secretary, Public Committee meeting held on 03.07.2008
Relations Department and deposed about the nature of
and Principal Secretary discussion which took place during the
to Chief Minister, Govt. said meeting wherein final decision
of Madhya Pradesh. regarding recommendation of 36th
screening committee qua allocation of
various coal blocks in favour of different
applicant companies was taken.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 17 of 350 PW-12 Amalendu Khaamru, He alongwith three other officials of the Legal Assistant in the Office of Coal Controller, Kolkata were office of Coal Controller, deputed to MOC office, New Delhi on a Kolkatta request made by MOC for assisting in the processing of applications. He further stated that except for segregating various applications coal block wise they were not asked to do any other work much less to check the applications for their completeness and eligibility.
PW-13 V.S. Rana, Deputy He was posted as Under Secretary, Secretary, Ministry of Ministry of Coal from August 2005 till Home Affairs December 2013. He was associated with the processing of applications of various private companies received by Ministry of Coal seeking allocation of coal blocks including that of A-1 M/s KSSPL. He accordingly proved various files/ notings/ documents as were prepared in Ministry of Coal either by him or by other officers/ officials of Ministry of Coal during that period.
PW-14 Pilli Ravi Kumar, Under He was Under Secretary, MOC in the year Secretary, CPD Section, 2014. During the course of investigation of Ministry of Coal, the present case he had handed over Govt. of India various information relating to A-1 M/s KSSPL as was available in the records of MOC and had also supplied copies of various orders pertaining to grant of coal linkage to A-1 M/s KSSPL by MOC.
PW-15 R. Muralidhar, Retired He was posted as Under Secretary, DIPP, Under Secretary, Govt. of India during the period 2006-08. Department of Industrial He deposed about the manner in which Policy & Promotion applications received in DIPP from MOC (DIPP) under Ministry of were processed. He stated that in DIPP Commerce and Industry, applications of only such companies were Govt. of India. processed who were either engaged in production of cement or were proposing to establish their end use project in cement sector.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 18 of 350 PW-16 N R Dash, Executive He was posted as Director Ministry of Director, Ministry of Steel from October 2006 till October 2011 Railways and was Incharge of ID Wing i.e. Industrial Development Wing. He was associated with the processing of applications of various applicant companies including that of A-1 M/s KSSPL as were received in Ministry of Steel from Ministry of Coal for obtaining their views/ comments regarding allotment of captive coal blocks.
PW-17 Ashok Kumar Aggarwal, He had issued two certificates to company Superintendent M/s KSSPL in the year 2013 specifying (Technical) Central the total number of working days for which Excise Department, the sponge iron plant of the company Satna, M.P. worked in the year 2005-06 and in the year 2006-07.
PW-18 IO, DSP Sanjay Dubey, He was the investigating Officer of the EO-III, CBI, ND case. He deposed extensively about the investigation carried out by him and also about the collection of various documents from different authorities by him during the course of investigation.
DEFENCE WITNESSES (DWs)
DW No. Name and designation Deposition/Role of the witness in the
of the Witness present case.
DW-1 Sh. Rishan Ryntathiang He was Under Secretary CA-I and CA-III
Under Secretary CA-I Section, MOC, Govt. of India. He
and CA-III Section, produced copy of file Ex.DW1/A(colly)
Ministry of Coal, Govt. wherein the record relating to constitution
of India. of Screening Committee for dealing with
applications received for captive coal
blocks was available.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 19 of 350 DW-2 Sh. Parmanand, Officer He produced office copy of two letters on Special Duty, Office which were written by Sh. Bhaskar Kulbe, of Advisor Industry, the then Advisor, Industry, Govt of West WBIDC, Govt of West Bengal to Dr. Sabyasachi Sen, Principal Bengal, New Delhi Secretary, C&I Department, Govt of West Bengal, Kolkata. He proved the said letters as Ex.DW2/A and Ex.DW2/B.
DW-3 Arunendra Prasad He was an employee of A-1 M/s KSSPL.
Tiwari, Manager, Officer He deposed that in the plant of the in M/s Kamal Sponge company a register RG-1 (Daily Stock Steel and Power Ltd. Register) was maintained every year in the dispatch section wherein a record of daily production/sale of sponge iron or the excise duty payable thereon was maintained. He accordingly placed on record three such registers i.e. Ex. DW 3/A (colly) for the year 2005-06, Ex. DW 3/B (colly) for the year 2006-07 and Ex.
DW 3/C (colly) for the year 2007-08.
DW-4 S.K. Pandey, Retired He was the then Inspector, Central Excise Superintendent, Central Department, Bhopal, MP. He deposed Excise Department about excise audit of the industrial plant of A-1 M/s KSSPL as was conducted by Central Excise Department officials during the year 2007-08.
DW-5 Manzoor Ali Ansari, He was the then Dy. Commissioner, Joint, Commissioner, Central Excise, Satna Division, MP.
Customs (Preventive) During the course of investigation he vide Jaipur his letter dated 09.05.2013 Ex. PW 17/DX-1(D-61) had informed IO, Inspector Sanjay Dubey about the correctness of two certificates dated 12.04.2013 Ex.PW17/B (D-70) and dated 27.04.2013 Ex.PW17/C (D-71) regarding working days of the company in the year 2005-06 and in the year 2006-07 to be genuine and having been issued by the Jurisdictional Superintendent on the request of company M/s KSSPL.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 20 of 350 DW-6 B.K. Tripathi, Asstt. He was an employee of A-1 M/s KSSPL.
Incharge Marketing, He deposed that in the first week of M/s Kamal Sponge January 2007, the accounts department Steel and Power Ltd. of A-1 M/s KSSPL at Satna, M.P. handed over to him certain applications of A-1 M/s KSSPL to be submitted to MOC for allocation of captive coal blocks. He had accordingly taken them to A-2 Pawan Kumar Ahluwalia at the office of M/s Hima Ispat Ltd. at Barbil, Orissa and got them signed from A-2 Pawan Kumar Ahluwalia.
DW-7 P.S.S. Reddy, He was posted as Director, MOC from Commissioner Income December 2012 till 2013. Upon receipt of Tax, Hyderabad a request from IO Inspector Sanjay Dubey he had provided certain documents relating to coal block allocation matters as were asked for by the IO vide his letter dated 21.02.2013 Ex.PW18/N-4 (colly) (D-24).
DW-8 S.K. Shivani, Under He was posted in Mineral Resources Secretary, Mineral Department, Govt of MP from September Resources Department, 2006 till June 2015. During the course of Govt. of MP investigation on the request of IO Inspector Sanjay Dubey he had handed over copy of various documents and one original file of the department alongwith his written reply dated 10.05.2013 Ex.PW18/L-2 (colly).
DW-9 S.K. Shahi, Deputy He was posted as Director MOC from Director General, March 2013 to July 2016. During the Department of Telecom, course of investigation he had furnished GOI certain information from the records of MOC to CBI vide his letter dated 02.05.2013 Ex.PW14/C (D-27).
DW-10 K.C. Samria, A- 6 K.C. Samria examined himself as a (Accused No. 6) defence witness u/s 315 Cr.PC. In his deposition he extensively stated about his role and responsibility while being posted CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 21 of 350 in MOC and the manner in which the applications were processed or the matters which were brought to his knowledge. He also deposed about his involvement in the processing of applications in MOC stating that one set of the applications were already sent by MOC to Administrative Ministries and State Govts. concerned much before he took over the charge of CA-1 Section, MOC.
DW-11 K.S. Kropha, A-5 K.S. Kropha examined himself as a (Accused No. 5) defence witness u/s 315 Cr.PC. In his deposition he extensively deposed about the manner in which the applications received by MOC were dealt with either in MOC or by the Screening Committee. He also deposed about his role and responsibility in MOC both as Joint Secretary Coal and also as Member Convener Screening Committee. He also deposed about his unblemished career throughout his long service of 34 years.
DW-12 Harish Chandra Gupta, A-4 H.C. Gupta also examined himself as (Accused No. 4) a defence witness u/s 315 Cr.PC. In his deposition he also extensively deposed about the manner in which the applications received by MOC were dealt with either in MOC or by the Screening Committee. He also deposed extensively about his role and responsibility both as Secretary Coal and also as Chairman, Screening Committee. He also deposed about his unblemished career throughout his long service of 37 years.
DW-13 Shiv Raj Singh, He was an IAS officer of Chattisgarh Retired IAS officer, Govt Cadre. He deposed that he had attended of Chattisgarh two meetings of 36th Screening committee i.e. on 08.02.2008 and 03.07.2008 as a representative of Govt.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 22 of 350 of Chattisgarh. He extensively deposed about the manner in which the meetings of screening committee were held and also stated that in the meeting all the members present were free to air their views. He further stated that whenever qua any coal block there used to be consensus amongst the members, then A-4 H.C. Gupta, Chairman used to announce the final decision but in other cases where there used to be no such unanimity then after hearing the views of all concerned A-4 H.C. Gupta used to announce the recommendation of Screening Committee for allotment of a given coal block in favour of one or more applicant companies in accordance with the consensus which may have developed during the course of discussion. He also stated that in certain cases, some of the representations used to request that their views be specifically recorded in the proceedings. He further stated that the decision thus used to be taken by way of broad consensus.
After having briefly mentioned the deposition of various prosecution witnesses and defence witnesses as were examined during the course of trial, it will be now appropriate to briefly mention the rival contentions of both prosecution as well as that of Ld. Counsels for the accused persons. The deposition of the aforesaid prosecution and defence witnesses shall be however referred to in detail wherever required in the later part of the present judgment.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 23 of 350 Arguments on behalf of prosecution.
20. It was submitted by Ld. senior P.P. Sh. V.K. Sharma on behalf of prosecution that the facts and circumstances of the present case clearly show as to how the accused MOC officers and the other private parties involved conspired together to cheat MOC, Govt of India of the valuable nationalised natural resources of the country i.e. coal. It was submitted that admittedly the application of A-1 M/s KSSPL was submitted to MOC under the signatures of A-2 Pawan Kumar Ahluwalia and thus both the company and its director A-2 Pawan Kumar Ahluwalia were responsible for the correctness of the facts mentioned in the application. It was thus submitted that in these circumstances it was logical and legally permissible to conclude that A-2 Pawan Kumar Ahluwalia was aware of the contents mentioned in the application and that the same were consciously mentioned in the application as the day to day affairs of A-1 M/s KSSPL were being looked after by A-2 Pawan Kumar Ahluwalia only. It was also submitted that during the course of trial not only it has been conclusively established from the deposition of various prosecution witnesses that the figures of net-worth as mentioned in the application were wrong but even the accused himself has also not disputed the said fact. It was also pointed out that the factum of application of A-1 M/s KSSPL being not complete as it was not accompanied with the audited balance sheets for the past three years has also been clearly proved beside the fact that the audited balance sheets for the past three years were very much available with the company. It was further submitted that the prosecution has also CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 24 of 350 proved on record that even the figures of existing production capacity of the company mentioned in the application were also wrong. As regard the claim of A-1 M/s KSSPL that the company actually functioned for a period of more than 300 days and which claim was sought to be supported by two certificates issued by PW-17 Ashok Kumar Aggarwal, Superintendent, Excise Department, it was submitted that from the deposition of said witness it is clear that the two certificates were procured from him by A-1 M/s KSSPL solely with a view to create some false defence for the purposes of present case so as to justify the false claims made in the application.
21. It was also submitted that during the course of evidence it has been clearly proved on record that the Administrative Ministry i.e. Ministry of Steel and also the State Govt of Madhya Pradesh had relied upon the figures of net-worth as mentioned in the application. Ministry of Steel had in fact also relied upon the existing production capacity and the proposed production capacity of the end use project as was mentioned in the applications. Moreover the Screening Committee and thereby MOC had also admittedly relied upon the financial strength and techno economic feasibility of various applicant companies before allocating any coal block. It was thus submitted that A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia had dishonestly and consciously made the said false claims in order to deceive and thereby induce MOC, Govt of India to allot a coal block in favour of A- 1 M/s KSSPL. As regard A-5 K.S. Kropha it was submitted that he being Joint Secretary MOC was incharge of an independent wing CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 25 of 350 which also comprised of CA-I Section and thus under the over all supervision of Secretary Coal he was responsible for the work of his wing. As regard A-6 K.C. Samria it was submitted that he being director CA-I was acting on behalf of Secretary Coal and was responsible to ensure that no ineligible company or a company whose application was not complete is allotted a coal block.
22. As regard the role of MOC officers it was also submitted that A-4 H.C Gupta being Secretary Coal was the Administrative Head of the Ministry and his responsibility was complete and undivided. It was submitted that admittedly no inter-se priority chart or inter-se merit chart was prepared either by MOC or by the Screening committee which could have only demonstrated as to which of the applicant company was better placed as compared to other. It was however also submitted that even otherwise the application of A-1 M/s KSSPL ought not to have been put up before the screening committee at all by MOC as its application was admittedly incomplete and in terms of the guidelines issued by MOC was liable to be rejected at the initial stage itself. The question of A-1 M/s KSSPL being better placed than other applicant companies or not would not have thus come up for consideration even.
23. It was also submitted that A-4 H.C. Gupta not only as Secretary Coal but as Chairman Screening committee was clearly exercising dominion over the Nationalised natural resources of the country. He was stated to be aware that the competent authority i.e. Minister of Coal shall accord approval for allotment of various coal CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 26 of 350 blocks to different applicant companies on the basis of recommendation of screening committee only. It was thus submitted that the MOC officers were under a duty to ensure that the Nationalised natural resources of the country were distributed/allotted in an objective and transparent manner. It was submitted that the Ministry of Coal officers thus failed to observe those reasonable safeguards as were expected of them in dealing with such important nationalised natural resources and they thus not only abused their position as public servants but also acted with complete disregard to the public interest involved. It was also submitted that from the over all facts and circumstances of the case it was clearly evident that the MOC officers who have been arrayed as accused were clearly hands in glove with the company M/s KSSPL and its director A-2 Pawan Kumar Ahluwalia and A-3 Amit Goyal.
24. It was also submitted by Ld. Senior P.P. Sh. V.K. Sharma that from the facts and circumstances of the case coupled with the files of MOC and from the documents referred to by Ld. Counsel for the accused persons it is clear that the accused MOC officers were well aware that checking of applications for their eligibility and completeness has not been carried out and thus they should have undertaken such an exercise of checking the applications at least before sending the allocation letters to various allocatee companies. It was also submitted that the fact that M/s BLA Power Ltd. was called by the 36th Screening committee to make a presentation clearly show that M/s BLA Power Ltd. which subsequently expressed its interest in CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 27 of 350 establishing a cement plant also could have been considered by 36 th screening committee for allotment of a captive coal block.
25. Ld. senior P.P. Sh. V.K. Sharma further placed reliance upon the following case law in support of his submissions:
S.No. Case Title Citation
1 K. Satwant Singh V. State of Punjab (1960) 2 SCR 89
2 C.I.T, Andhra Pradesh V. M/s Taj Mahal 1971 (3) SCC 550
Hotel, Secundrabad
3 Delhi Judicial Service Association, Tis (1991) 4 SCC 406
Hazari Court, Delhi V. State of Gujarat
4 Chief Education Officer V. K.S. 2012 (2) MWN (Cr.)
Palanichamy 354
5 REG V. Hanmanta (1877) ILR 1 BOM 610
6 Common Cause, a Registered Society V. (1999) 6 SCC 667
Union of India & Ors.
7 Krishnan & Anr. Vs. Krishnaveni & Anr. 1997 (4) SCC 241
8 State through Superintendent of Police, 1999 (5) SCC 235
CBI/SIT Vs. Nalini
26. The prosecution was thus stated to have been successful in proving its case against all the accused persons for the offences for which they have been charged. All the accused persons were thus prayed to be convicted.
Arguments on behalf of A-1 M/s KSSPL.
27. As regard A-1 Ms/ KSSPL it was strongly argued by Ld. Counsel Sh. Pavan Narang that prosecution has miserably failed CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 28 of 350 to prove its case against the company at all. It was submitted that prosecution has tried to build up its case of a criminal conspiracy allegedly hatched between the private parties and the public servants involved on the basis of circumstantial evidence. It was however submitted that not only the entire chain of circumstantial evidence has not been proved by the prosecution but even various circumstances themselves have also not been proved at all much less beyond shadows of reasonable doubts. It was also submitted that the contents of various documents sought to be proved on record by the prosecution have also not been proved as per the provisions of Indian Evidence Act, 1872. It was also submitted that certain material circumstances were also not put to A-1 M/s KSSPL in the statement u/s 313 Cr.PC and thus the said circumstances cannot be read against the accused company.
28. It was also submitted by Ld. Counsel Sh. Pavan Narang that the contents of application form of A-1 M/s KSSPL seeking allotment of "Thesgora-B/Rudrapuri" Coal Block i.e. Ex.PW1/F(colly)(D-10) have not been proved by the CBI by any legally admissible evidence. It was submitted that PW-3 Prashant Ahluwalia proved only the signatures of A-2 Pawan Kumar Ahluwalia on the said application but he was admittedly not aware of the contents of the application or annexures thereof. It was submitted that prosecution has not led any evidence to prove that the wrong figures qua net-worth and production capacity as are stated to have been mentioned in the application form were made with any malafide intention and that too CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 29 of 350 on the instructions of A-2 Pawan Kumar Ahluwalia. It was submitted that no evidence has been led on record by the prosecution to show that A-3 Amit Goyal, chartered Accountant who had gone to attend the Screening committee meeting on 07.12.2007 was aware of the contents of the application form and its annexures and especially as regard the figures qua net-worth and production capacity mentioned over there much less he was part of any alleged criminal conspiracy as stated to have been hatched by the other accused persons. It was submitted that prosecution has not led any evidence on record to prove that the applications of other applicant companies or the documents annexed therewith who had applied for allocation of "Thesgora-B/Rudrapuri" Coal Block were complete or not much less the information furnished therein was true. It was also submitted that prosecution has failed to prove that there was any legal or statutory requirement of furnishing of feedback form and making of presentation by the applicant companies before the screening committee.
29. It was also submitted that no evidence has been led by the prosecution that the allocation letter issued in favour of A-1 M/s KSSPL (the valuable security as claimed by prosecution) resulted in any wrongful gain to accused company or in any wrongful loss to MOC or to any other entity. It was thus submitted by Ld. Counsel that no presumption can be drawn regarding the aforesaid circumstances either in favour of prosecution or against the accused persons.
30. It was also submitted that the complete chain of CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 30 of 350 circumstantial evidence has not been proved by the prosecution which may point a guilty finger towards the accused. It was further submitted by Ld. Counsel Sh. Pavan Narang that prosecution has also failed to prove on record that the scrutiny of applications before sending one set thereof to Administrative Ministries and State Governments was not carried out by MOC officers on account of any criminal conspiracy much less hatched with the private parties involved. It was submitted that the said exercise of scrutiny of applications for their completeness or eligibility could not be carried out as the number of applications received were too many and sufficient staff was not available with CA-I Section to carry out such an extensive exercise. It was also submitted that admittedly Sh. Sanjiv Mittal was the Director, CA-I Section, MOC when the impugned advertisement was issued or the applications were sent to State Governments and Administrative Ministry but for reasons best known to prosecution he has not been examined. It was also submitted that nothing has been brought on record to prove that the alleged misrepresentation in the application of A-1 M/s KSSPL was on account of any malafide intention or whether the said misrepresentation in fact led to deceiving the screening committee and thereby MOC in making allocation of the impugned coal block in favour of A-1 M/s KSSPL.
31. It was also submitted that Sh. S.K. Mandal who attended the screening committee meeting on 08.12.2007 as a representative of Govt of Madhya Pradesh when A-3 Amit Goyal appeared before the CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 31 of 350 screening committee was also not examined by the prosecution for reasons best known to it.
32. It was also submitted that prosecution has not led any evidence which could show that the alleged acts/deeds of the officers of MOC were not merely negligent or careless acts but were actuated with any malafide intention much less being part of a larger criminal conspiracy. It was submitted by Ld. Counsel that as per the prosecution case the MOC officers conspired with all successful applicant companies who were allotted one or the other coal block by 36th Screening Committee. It was however submitted that such a proposition is theoretically not possible nor the evidence led by the prosecution on record suggests any such inference.
33. It was also submitted by Ld. Counsel Sh. Pavan Narang that during the course of evidence it has come on record that M/s BLA Power Ltd., the company recommended by Govt of Madhya Pradesh was not eligible for allotment of Thesgora-B/Rudrapuri" Coal Block as the said coal block was reserved for non-power sector and the company M/s BLA Power Ltd. intended to establish a power project. It was also pointed out that from the files of Govt. of Madhya Pradesh available on record as Ex. PW 9/A (colly) (D-46), it is clearly evident that the next two most eligible companies were M/s KSSPL and M/s Revati Cement Pvt. Ltd. and the said two companies were unanimously jointly allotted the impugned coal block by the screening committee.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 32 of 350
34. It was submitted by Ld. Counsel that prosecution in order to prove its case is trying to draw presumptions based on conjectures and surmises and the same is not permissible under law. It was further submitted that the prosecution can also not rely upon the observations of Hon'ble Supreme Court as were made in order dated 25.08.2014 passed in the case Manohar Lal Sharma V. Union of India, (2014) 9 SCC 516 whereby Hon'ble Supreme Court declared the allocation of all coal blocks by all the 36 Screening Committees of MOC as illegal being contrary to the provisions of MMDR, Act, 1957. It was submitted that in the said case Hon'ble Supreme Court was not dealing with the issue as to whether there was any malafide intention in the actions of either the MOC officers or that of the private parties involved. It was also submitted that any reply, if submitted by the accused persons during the course of investigation either in response to a notice u/s 91 Cr.PC issued by the IO or otherwise clearly amounts to a statement u/s 161 Cr.PC and is thus hit by section 162 Cr.PC. It was thus submitted that the prosecution in the absence of any other evidence having been not led cannot rely on any such reply or information supplied by the accused persons in the said reply. It was also submitted that the documents which have not been proved by the prosecution as per the provisions of Indian Evidence Act, 1872 also cannot be relied upon. It was pointed out by Ld. Counsel that from the deposition of DW-6 B.K. Tiwari, Asst. Manager, M/s KSSPL it has come on record that he had simply carried five copies of the already filled in application forms to Orissa for obtaining the signatures of A-2 Pawan Kumar Ahluwalia and CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 33 of 350 accordingly got it signed from him. It was submitted that A-2 Pawan Kumar Ahluwalia thus had no role in filling up the information in the said application form as the said information was furnished by the concerned departments of the company and he being an authorised signatory simply signed the application form on behalf of A-1 M/s KSSPL.
35. As regard the existing capacity of the end use plant it was submitted that during the period 01.04.2006 till 31.12.2006 the plant worked for 245 days out of 275 days and thus it remained shut for about 29 days only i.e. approx 10% of the working days. It was thus submitted that the said number of working days were used to calculate the existing production capacity of the plant. It was submitted that as in the year 2006 the plant had the existing production capacity of 290 tons per day so the existing production capacity came to around one lakh tons per year. It was however reiterated that the said information of the application cannot be looked into as the contents thereof have not been proved as per law by the prosecution.
36. It was also submitted that as per the prosecution case itself after the issuance of option letter dated 05.08.2008 by MOC both M/s KSSPL and M/s Revati Cement Pvt. Ltd. entered into a joint venture agreement dated 03.09.2008 and submitted the same to MOC. It was thereafter the letter of allocation dated 21.11.2008 was issued by MOC in favour of the two companies. The two companies thereafter formed a joint venture company called "Thesgora Coal Pvt. Ltd." and CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 34 of 350 thus all subsequent communication with MOC or other pre-mining activities were undertaken by the said JV company. It was however submitted that while the JV company made substantial progress in terms of the allocation letter but on account of delays caused by the Govt. departments in granting various clearances the mining activity could not be undertaken. It was however submitted that neither the IO has investigated nor the prosecution has led any evidence to prove that any act of cheating or criminal conspiracy was committed either by the said JV company or through it by A-1 M/s KSSPL. The various pre-mining activities undertaken by the joint venture company subsequent to allocation of Thesgora-B/Rudrapuri coal block jointly to A-1 M/s KSSPL and M/s Revati Cement Pvt. Ltd. by MOC were highlighted to assert that the two companies were always ready to establish the end use plant and to undertake mining of coal.
37. It was thus submitted that prosecution has miserably failed in proving any mens-rea on the part of A-1 M/s KSSPL in furnishing any wrong information to MOC. It was also submitted that ingredients of neither the offence of cheating nor that of criminal conspiracy have been proved by the prosecution.
38. The prosecution was thus stated to have miserably failed in proving its case against A-1 M/s KSSPL beyond shadows of all reasonable doubts. A-1 M/s KSSPL was thus prayed to be acquitted.
Arguments on behalf of A-2 Pawan Kumar Ahluwalia.
39. As regard A-2 Pawan Kumar Ahluwalia the arguments CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 35 of 350 addressed by Ld. Counsel Sh. Pavan Narang proceeded almost on identical lines as that of A-1 M/s KSSPL. It was submitted by Ld. Counsel that the contents of the application of M/s KSSPL as submitted to Ministry of Coal have not been proved by the prosecution by any legally admissibly evidence. It was also submitted that prosecution has miserably failed to prove that the alleged false/wrong figures qua net-worth and production capacity as mentioned in the application form were made with any malafide intention. The essential ingredient of mens-rea in the impugned offences of cheating and criminal conspiracy was thus stated to be missing.
40. It was also submitted that as per the advertisement issued by MOC preference only was to be given to companies having minimum production capacity of one million tonne per annum (1 MTPA) and thus the companies having production capacity less than one 1 MTPA could have been also recommended for allocation of one or the other coal block. It was thus submitted that from out of all the 10 applicant companies who had applied for Thesgora B/Rudrapuri Coal block the company M/s KSSPL and M/s Revati Cement Pvt. Ltd. were the two most suitable companies and were accordingly recommended by the screening committee for allocation of the said coal block jointly. It was also submitted that prosecution has failed to bring on record any evidence to show that the claims made in the applications of other eight applicant companies were correct or not or that they were more suitably placed then A-1 M/s KSSPL.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 36 of 350
41. In the light of aforesaid submissions it was submitted that the prosecution has miserably failed to prove various circumstances beyond shadows of reasonable doubts and thus a complete chain of incriminating circumstances pointing towards the guilt of A-2 Pawan Kumar Ahluwalia does not stand proved.
42. It was also submitted that from the deposition of DW-6 B.K. Tripathi, it was clear that A-2 Pawan Kumar Ahluwalia signed the applications merely because he was the authorised signatory of the company and had no personal knowledge of the contents of the application. It was also submitted that admittedly A-2 Pawan Kumar Ahluwalia did not play any other role either in the processing of the application in MOC or subsequent thereto. It was submitted that as per the prosecution case itself A-2 Pawan Kumar Ahluwalia even did not appear before the screening committee for making any presentation or submitting any feedback form.
43. As regard various replies given by A-2 Pawn Kumar Ahluwalia during the course of investigation to the IO in response to notices u/s 91 Cr.PC it was submitted that the same at the most can amount to statement u/s 161 Cr.PC and were thus hit by section 162 Cr.PC.
44. It was also submitted by Ld. Counsel Sh. Pavan Narang that in the statement u/s 313 Cr.PC it was not put to the accused that the application in question was signed or submitted by him to MOC with an intention to deceive or cheat MOC. Various other circumstances CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 37 of 350 were also stated to have been not put to the accused in his statement u/s 313 Cr.PC. Some of such circumstances not put to A-2 Pawan Kumar Ahluwalia in his statement u/s 313 Cr.PC were highlighted such as that A-3 Amit Goyal had knowledge of the false claims made in the application or that he and A-2 Pawan Kumar Ahluwalia hatched a criminal conspiracy to cheat MOC. It was also not put that the Ministry of Coal officers did not scrutinize the applications for their completeness and eligibility on account of a criminal conspiracy hatched by them with the private parties involved. It was also pointed out that the circumstance that A-4 H.C. Gupta was having dominion over the Nationalised natural resources of the country i.e. coal was also not put to A-2 Pawan Kumar Ahluwalia in his statement u/s 313 Cr.PC.
45. As regard the wrong figures of net-worth for the year 2004-05 and 2005-06 mentioned in the application it was submitted that the same was the result of lack of knowledge of the standard accounting practices of calculating net-worth on the part of staff of the company. It was pointed out that a conceptual mistake was committed by the administrative staff of the company M/s KSSPL in deducting the current liabilities of the company for the financial year 2004-05 from the total assets as was clearly evident from the balance sheets annexed with the application. It was also submitted that admittedly MOC had not prescribed any minimum thresh-hold for net-worth and thus there could not have been any malafide intention in furnishing wrong information about the net-worth and more so when the entire CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 38 of 350 balance sheets and other relevant documents reflecting the current value of assets, liabilities and net-worth were attached with the application. It was however again reiterated that net-worth of any company was never a criteria before the screening committee in making recommendation of allocation of any coal block.
46. As regard the existing production capacity of the company it was submitted that as during the relevant period the company worked for a period of 245 days from out of 275 days and thus on the basis of the said data the production capacity of the company was calculated and the same came to be approximately 1 lac tonne per annum. It was thus submitted that there was no malafide intention in even mentioning the exiting production capacity of the company as 1 lac tonne per annum (0.1 MTPA).
47. It was also submitted that even subsequent to allocation of the impugned coal block the company M/s KSSPL had made substantial progress towards pre-mining activities through the JV company formed with M/s Revati Cement Pvt. Ltd. and the same thus goes to show that there was no malafide intention on the part of A-2 Pawan Kumar Ahluwalia in seeking allocation of a coal block in the name of A-1 M/s KSSPL.
48. In the aforesaid circumstances it was thus submitted that prosecution has miserably failed in proving the ingredients of either the offence of criminal conspiracy or that of cheating also against A-2 Pawan Kumar Ahluwalia. He was thus prayed to be acquitted.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 39 of 350
49. In support of his submissions for A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia Ld. Counsel Sh. Pavan Narang placed reliance upon the following case law:
S. Case Title Citation
No.
1 Kali Ram Vs. State of Himachal Pradesh (1973)2 SCC 808
2 Ashish Batham Vs. State of MP (2002)7 SCC 317
3 Kailash Gour and Ors.Vs. State of Assam (2012)2 SCC 34
4 Sri Rabindra Kumar Dey Vs. State of Orissa (1976)4 SCC 233
5 Prem Kumar Gulati and Anr. Vs. State of (2014)14 SCC 646
Haryana
6 L.K. Advani Vs. CBI 1997 CrLJ 2559
7 Nabi Mohamad Chand Hussain and Ors. Vs. 1980 CrLJ 860
State of Maharashtra
8 State of Kerala Vs. P. Sugathan & Anr. (2000)8 SCC 203
9 Sharad Birdhichand Sarda Vs. State of (1984) 4 SCC 116
Maharashtra
10 Hanumant Vs State of MP 1952 SCR 1091
11 C. Chenga Reddy Vs. State of A.P (1996) 10 SCC
193
12 Sunil Bharti Mittal Vs. Central Bureau of (2015) 4 SCC 609 Investigation 13 Jugeshwar Singh and Others Vs Emperor 1935 SCC Online Pat 209 14 Emperor Vs. Pir Muindin Abdul Rehman & 1944 SCC Online Anr. Sind CC 27 15 Rewati Raman Singh Vs. State 2012 ()127 DRJ 176 16 Darshan Sing Ram Kishan Singh Vs. State (1971) 2 SCC 654 of Maharashtra 17 CBI Vs. V.C.Shukla & Ors. (1998) 3 SCC 410 CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 40 of 350 18 Ramji Dayawala and Sons Vs. Invest Import (1981) 1 SCC 80 19 Sir Mohammad Yusuf & Anr Vs. D. & Anr. 1961 SCC Online Bom 5 20 Mobarik Ali Ahmed Vs. State of Bombay (1958) SCR 328 21 Subramanian Swamy Vs. A Raja (2012) 9 SCC 257 22 Ram Gopal Vs. State of Maharashtra (1972) 4 SCC 625 23 Krishna Janardhan Bhat Vs. Dattatraya G. (2008) 4 SCC 54 Hegde 24 Raj Kumar Singh @ Raju @ Batya Vs. State (2013) 5 SCC 722 of Rajasthan 25 Nar Singh Vs. State of Haryana (2015) 1 SCC 496 26 Leo Roy Frey Vs. Suppdt. Distt. Jail AIR 1958 SC 119 27 Subramanian Swamy Vs.A.Raja (2012) 9 SCC 257 28 Wolfgang Reim & Ors. Vs. State & Anr. 2012 SCC Online Del 3341 29 Mohinder Pratap Vs. The State of NCT of ILR (2013) VI Delhi Delhi 4417 30 State of Kerala Vs P. ugathan & Anr. (2000) 8 SCC 203 31 K.R. Purushothaman Vs. State of Kerala (2005) 12 SCC 631 32 V.C. Shukla Vs. State (Delhi Administrative) (1980) 2 33 CBI Vs. V.C. Shukla (1998) 3 SCC 410 34 M.M.S.T. Chidambaram Chettiar Vs. 1936 SCC Online Shanmugham Pillai Mad 414 35 S. Ram Yadav Vs. CBI & Ors. 2013 (137) DRJ 131 36 Sudheo Jha Uppal Vs. State of Bihar AIR 1957 SC 466 Arguments on behalf of A-3 Amit Goyal.
50. As regard A-3 Amit Goyal it was submitted by Ld. Counsel Sh. Sushil Bajaj that not only the prosecution has miserably failed in CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 41 of 350 proving its case against A-3 Amit Goyal beyond shadows of all reasonable doubts but even otherwise the entire allegations of prosecution are primarily based on presumptions without being supported by any legally admissible evidence. It was submitted that as per the prosecution case itself A-3 Amit Goyal was not an employee of A-1 M/s KSSPL and was only the statutory auditor of the company. The deposition of PW-3 Prashant Kumar Ahluwalia was relied upon in this regard. It was also submitted that prosecution has not led any evidence to show that A-3 Amit Goyal was in any manner associated or involved either in the preparation of application of A-1 M/s KSSPL to be submitted to MOC or in its subsequent processing before MOC. It was also submitted that in the absence of any legally admissible evidence no presumption can be drawn that A-3 Amit Goyal was aware of the contents of the application so submitted by company M/s KSSPL to MOC. It was further submitted that the only allegation against A-3 Amit Goyal is that he attended the screening committee meeting on 08.12.2007 on behalf of A-1 M/s KSSPL. In this regard it was submitted that A-3 Amit Goyal has consistently stated during the course of investigation and also during the course of present trial that A-2 Pawan Kumar Ahluwalia had asked him to accompany him to screening committee meeting as his presence might be required to answer any query if raised by the screening committee members qua the audited balance sheets of the company. It was further stated that admittedly A-2 Pawan Kumar Ahluwalia failed to reach the venue of screening committee meeting and in his absence A-3 Amit Goyal was the only person present at the meeting CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 42 of 350 venue on behalf of A-1 M/s KSSPL and thus neither any presentation was made by him nor any feedback form was submitted to the Screening Committee by him on behalf of company A-1 M/s KSSPL. It was further submitted that prosecution has not led any evidence to show that A-3 Amit Goyal made any presentation or submitted any presentation on behalf of company A-1 M/s KSSPL to the screening committee much less submitting any feedback form.
51. It was also pointed out that during the course of investigation no such presentation or feedback form could be collected by CBI either from A-1 M/s KSSPL or A-2 Pawan Kumar Ahluwalia or even from MOC. Even as regard the reply given by A-2 Pawan Kumar Ahluwalia Ex.PW3/R (D-63) to a notice u/s 91 Cr.PC issued by the IO during the course of investigation wherein it is stated that a power- point presentation was made on behalf of the company before the screening committee, it was submitted that the said reply having been not supported by any other oral or documentary evidence was thus clearly hit by section 162 Cr.PC and was accordingly inadmissible in evidence. It was further submitted that even A-2 Pawan Kumar Ahluwalia failed to provide copy of any such power point presentation stated to have been made before the screening committee. Referring to the deposition of PW 16 N.R. Dash, Director, Ministry of Steel who was present in the screening committee meeting on 08.12.2007 it was submitted that he also did not state anything against A-3 Amit Goyal or as regard any presentation having been made by him on behalf of A-1 M/s KSSPL. It was thus CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 43 of 350 submitted that prosecution has clearly failed to prove on record that either any presentation was made on behalf of A-1 M/s KSSPL before the screening committee or any feedback form was submitted to Screening Committee.
52. Further while relying upon the deposition of PW 13 V.S. Rana it was submitted that from his deposition it was clear that neither any record relating to presentation, if any made by A-1 M/s KSSPL or any feedback form if submitted on behalf of the company was available in MOC. It was thus submitted that no documentary evidence was even available in MOC which could show that any presentation was made by A-3 Amit Goyal before the screening committee on 08.12.2007 or any feedback form was submitted by him.
53. It was also submitted that neither prosecution has led any evidence to show that A-3 Amit Goyal had knowledge as to what all documents were required to be submitted by A-1 M/s KSSPL alongwith its application or what documents were actually annexed with its application by the company. No evidence has even been led to show that A-3 Amit Goyal had any knowledge of the contents of the application of A-1 M/s KSSPL as was submitted to MOC. It was further submitted that as per the prosecution case itself no false statement on any account whatsoever was found in the audited balance sheets of the company as were audited by A-3 Amit Goyal.
54. In the aforesaid circumstances it was submitted by Ld.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 44 of 350 Counsel Sh.Sushil Bajaj that in the absence of there being any legally admissible evidence against A-3 Amit Goyal it is crystal clear that prosecution has miserably failed in proving its case against him.
55. In support of his submissions Ld. Counsel Sh. Sushil Bajaj placed reliance upon the following case law:
S. Case Title Citation
No.
1 Kali Ram Vs. State of Himachal Pradesh (1973)2 SCC 808
2 Ashish Batham Vs. State of MP (2002)7 SCC 317
3 Kailash Gour and Ors.Vs. State of Assam (2012)2 SCC 34
4 Sri Rabindra Kumar Dey Vs. State of Orissa (1976)4 SCC 233
5 Prem Kumar Gulati and Anr. Vs. State of (2014)14 SCC 646
Haryana
6 L.K. Advani Vs. CBI 1997 CrLJ 2559
7 Nabi Mohamad Chand Hussain and Ors. 1980 CrLJ 860
Vs. State of Maharashtra
8 State of Kerala Vs. P. Sugathan & Anr. (2000)8 SCC 203
A-3 Amit Goyal was thus prayed to be acquitted.
Arguments on behalf of A-4 H.C. Gupta
56. As regard A-4 H.C. Gupta Secretary Coal and Chairman Screening Committee, it was vehemently argued by Ld. Sr. Advocate Sh. Mohit Mathur that the prosecution has miserably failed to prove its case against him by any cogent, convincing or legally admissible evidence. It was submitted that prosecution is merely trying to draw certain presumptions based on conjectures and surmises and the CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 45 of 350 same being not borne out either from the facts and circumstances of the case or from the evidence led by prosecution so the same can not be relied upon. It was also submitted that even the observations of Hon'ble Supreme Court in the order dated 25.08.2014 passed in the case Manohar Lal Sharma case (Supra), can not be relied upon as in the said matter Hon'ble Supreme Court only dealt with the legality of the process itself and not of the criminality of the person involved. It was also submitted that a purported exercise of power by a public functionary may be unlawful but need not be wrongful or criminal. It was also submitted that prosecution is duty bound to prove malice, knowledge or reckless indifference on the part of A-4 H.C. Gupta so as to bring his acts within the four corners of a criminal offence.
57. It was also submitted that in order to appreciate the role played by A-4 H.C. Gupta as Secretary, Coal or as Chairman, Screening Committee the functioning of a Ministry under Government of India needs to be seen and understood in the light of provisions of the "Central Secretariat Manual of Office Procedure" (hereinafter referred to as "Manual of Office Procedure"). The procedure as to how meeting of an inter-ministerial body or that of an inter-state body is to be conducted or the manner of recording of minutes thereof as provided in Central Secretariat Manual of Office Procedure needs to be seen and appreciated. It was also submitted that as all the acts were done by A-4 H.C. Gupta in the routine course of discharge of official business of the Ministry and that of Screening Committee, so a presumption as to the correctness of the official acts needs to be CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 46 of 350 drawn in favour of the accused under illustration (e) and (f) to Section 114 of Indian Evidence Act, 1872. It was submitted that the applications so received pursuant to advertisement issued by MOC were dealt with and processed in MOC or by the Screening Committee in accordance with the past practice and procedure being followed in MOC or by the Screening Committee. It was also submitted that certain oral statements of some prosecution witnesses sought to be relied upon by prosecution such as that of PW-11, Sh. S.K. Mishra, PW-12 Sh. Amalendu Khamaru, PW-13 Sh. V.S. Rana, PW-16 Sh. N.R. Dash and PW-18 IO DSP Sanjay Dubey can not be believed in so far as they are contrary to the official records of their respective Ministries/Departments. It was thus submitted that the correctness of the official records should be thus presumed to be in favour of accused by the Court.
58. It was also submitted that as admittedly all the acts in question were performed in the discharge of his official duties by A-4 H.C. Gupta so cognizance of none of the offences under IPC could have been taken without prior sanction u/s 197 Cr.PC.
59. As regard charge of criminal conspiracy, it was submitted that the very basic essential ingredient of meeting of minds between accused persons has not been proved by the prosecution. It has not been proved that accused had any knowledge of the acts committed by the other accused persons much less that of the private parties involved. It was also submitted that though prosecution has sought to prove the charge of criminal conspiracy i.e. u/s 120-B IPC by way of CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 47 of 350 circumstantial evidence but not only the said circumstances have not been individually proved by the prosecution beyond shadows of all reasonable doubts but the said circumstances also do not form a complete chain pointing to the guilt of accused only. It was submitted by Ld. Sr. Advocate that in order to arrive at a decision as to whether the said circumstances have been individually proved by the prosecution or not much less whether the complete chain of circumstances has been proved or not, only such evidence led by prosecution can be considered which has been legally proved as per the provisions of Indian Evidence Act, 1872.
60. As regard the testimony of PW-11 Sh. S.K. Mishra the then Secretary, Mining, Government of Madhya Pradesh who attended the final Screening Committee meeting on 03.07.08, it was submitted that the witness apparently did not state the correct facts. It was submitted that though PW-11 Sh. S.K. Mishra stated that he carried only the recommendation of Government of Madhya Pradesh as was made in favour of M/s BLA Power Ltd. with him and no other document, but, from the over all facts and circumstances of the case it was clear that PW-11 Sh. S.K. Mishra had duly gone through the file of Government of Madhya Pradesh wherein the issue of making recommendation in favour of various applicant companies was dealt with. It was also submitted that PW-11 Sh. S.K. Mishra before being transferred as Secretary, Mines was posted in the office of Chief Minister, Government of Madhya Pradesh and he had dealt with the said file when the evaluation of various applications was being done by CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 48 of 350 Government of Madhya Pradesh. It was submitted that PW-11 Sh. S.K. Mishra thus can not now claim that he had not gone through the said file before coming to attend the meeting of Screening Committee. It was also submitted that as M/s BLA Power Ltd. was admittedly not an eligible company qua "Thesgora-B/Rudrapuri" Coal Block since the said coal block was reserved for non power sector companies, so after broad discussion and deliberation in the Screening Committee, it was unanimously decided that the said coal block be jointly allocated in favour of A-1 M/s KSSPL and M/s Revati Cement Pvt. Ltd. It was pointed out that the said two companies were admittedly ranked at No. 2 and 3 after M/s BLA Power Ltd. by Government of Madhya Pradesh in their file while evaluating various applications. It was also submitted that even otherwise PW-11 Sh. S.K. Mishra did not make any objection or dissenting note either at the time of signing the recommendation sheets of 36th Screening Committee or subsequently after reaching Madhya Pradesh or even after receiving the final minutes of 36th Screening Committee. It was thus submitted that the said facts clearly goes to show that the decision to jointly allocate "Thesgora-B/Rudrapuri" Coal Block in favour of M/s KSSPL and M/s Revati Cement Pvt. Ltd. was unanimous and PW-11 Sh. S.K. Mishra was a party to the said decision. It was thus submitted that no reliance can be placed upon the oral deposition of PW-11 Sh. S.K. Mishra in so far as the same is contrary to the records of the case.
61. It was also submitted by Ld. senior Advocate Sh. Mohit CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 49 of 350 Mathur that the guidelines issued by MOC alongwith the advertisement, in fact referred to checking of applications for their eligibility and completeness and no scrutiny of the applications was to be carried out. It was thus submitted that the charge against A-4 H.C. Gupta that scrutiny of the applications was to be carried out in MOC before sending one set of the applications to the State Government and Administrative Ministries is thus not based on the guidelines issued by MOC governing allocation of coal blocks. While referring to the deposition of PW-13 Sh. V.S. Rana and PW-16 Sh. N.R. Dash, it was submitted that the completeness of the application primarily meant that it was accompanied with all the annexures as were required to be enclosed with the application in terms of the guidelines issued by MOC. Accordingly the bank draft of Rs. 10,000/- was also one such document required to be annexed with the application.
62. As regard eligibility of the applicant companies, it was submitted that as per the guidelines issued, the applicant was to be a company registered under the Indian Companies Act, 1956, and that it should be engaged in one of the end uses i.e. steel, iron, power, cement etc. It was also a requirement that the application should have been received in MOC on or before 12.01.2007. It was thus submitted that the use of the word "scrutiny" was clearly a misnomer as the said word as contrasted to "checking of applications" enormously increased the scope of work which was required to be carried out by MOC as per the guidelines. While placing strong reliance upon "Central Secretariat Manual of Office Procedure", it CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 50 of 350 was submitted by Ld. Sr. Advocate that the provisions of the said Manual of Office Procedure were required to be mandatorily followed by the public servants. It was also submitted that no work in a Ministry can be carried out merely on the basis of oral instructions and if at all oral instructions are given by any senior officer then as per the provisions of Central Secretariat Manual of Office Procedure, it is the duty of junior officer to reproduce the said oral instructions on the file and to get the said note approved from the senior officer giving such oral instructions. It was thus pointed out that the deposition of PW-13 Sh. V.S. Rana who stated that he had informed orally both to A-4 H.C. Gupta, Secretary Coal and A-5 K.S. Kropha, Joint Secretary Coal that no checking of the applications for their eligibility and completeness was carried out or that the processing of the applications in MOC by CA-I Section was carried out as per the oral instructions given by the senior officers thus can not be relied upon being contrary to the records of the case. While placing reliance upon the case T.S.R. Subramanyam and Ors. Vs. Union of India and Ors. (2013) 15 SCC 732, it was submitted that if any civil servant has acted on oral instructions or directions of anybody and has not reproduced the same on the official files for getting it approved from the said senior officer who has given oral directions/instructions then the said civil servant will be taking a risk and his oral deposition at a later stage can not be relied upon.
63. It was also submitted by Ld. senior Advocate that as provided in the Central Secretariat Manual of Office Procedure a Section in CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 51 of 350 any Ministry or Department is a basic work unit responsible for attending to items of work allotted to it and is usually headed by a Section Officer. It was also pointed out that a department is primarily responsible for formulation of policies of the Government in relation to business allocated to it and also for the execution and review of those policies. However for efficient disposal of business allotted, a department is divided into wings, divisions, branches and sections/units/cells.
64. It was thus submitted that PW-13 Sh. V.S. Rana in his deposition stated that the work relating to allocation of captive coal blocks was allotted to CA-I Section in MOC and thus after the guidelines were formulated by MOC governing allocation of coal blocks it was primarily the job of CA-I Section only to ensure that the said guidelines are duly complied with. It was submitted that a Secretary of the Ministry who primarily acts as an advisor to the Minister-in-charge and is though administrative head of the Ministry cannot be expected to personally look into the work of each and every section of the Ministry. It was submitted that A-4 H.C. Gupta as Secretary, coal was having 15 sections in his Ministry and there were various Additional Secretaries, Joint Secretaries and Directors working in MOC who were looking after the work of different sections. It was thus submitted that A-4 H.C. Gupta as Secretary can not be expected to look into the work of each officer or section in the Ministry. It was also submitted that whenever any file used to be put- up to A-4 H.C. Gupta as Secretary Coal then also he acted on the file CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 52 of 350 on the belief and presumption that the work undertaken by various officers and sections of the Ministry has been properly carried out and thus on every occasion he as Secretary, Coal could not have perused the entire file.
65. It was also submitted by Ld. senior Advocate Sh. Mohit Mathur that admittedly there is no noting in the files of MOC that senior officers were ever informed by CA-I Section that the checking of applications for their completeness and eligibility has not been carried out. It was pointed out that PW-13 Sh. V.S. Rana, Under Secretary, MOC himself has admitted that four copies of the applications were sent to concerned State Governments and Administrative Ministries after obtaining approval from him only. Admittedly the file in this regard did not travel to the desk of senior officers. It was however pointed out that on several other occasions PW-13 Sh. V.S. Rana had put up the file before senior officers but at the time of sending applications the matter was never brought to the notice of senior officers as the applications were dealt with and processed in the Ministry as per past practice and procedure being followed. It was also submitted that whenever on an earlier occasion a note was put up before A-4 H.C. Gupta as Secretary, Coal for seeking additional staff then the same was duly approved by him and thus there was no reason as to why accused would not have permitted additional staff to CA-I Section if it was brought to his knowledge that checking of applications for eligibility and completeness was not carried out due to shortage of staff. The CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 53 of 350 deposition of PW-13 Sh. V.S. Rana was thus stated to be full of contradictions and as being untrustworthy and unreliable. It was thus submitted by Ld. senior Advocate that prosecution has miserably failed to bring on record anything which could show that there was any meeting of mind between A-4 H.C. Gupta and the private parties involved or the other officers of MOC.
66. As regard consideration of application of A-1 M/s KSSPL by the Screening Committee despite it being not complete, it was submitted that only during the course of investigation of the present case it came to the notice of A-4 H.C. Gupta that the application of A-1 M/s KSSPL was not complete. Moreover as per the guidelines all the applications were to be put up before Screening Committee and MOC on its own could not have with-held any application from the Screening Committee.
67. As regard the issue of certain applicant companies having not made presentation or having not submitted the feedback form it was submitted that it was unanimously decided that irrespective of any applicant company making a presentation before the Screening Committee or not, the applications of all applicant companies were to be considered. It was also submitted that the making of presentation before the Screening Committee or the submission of the feedback form was not a requirement of the guidelines issued by MOC governing allocation of coal blocks but the only purpose was to know the latest status of development made by a company towards establishing its end use project since from the time of submission of CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 54 of 350 initial application forms considerable time had elapsed.
68. As regard the issue of post recommendation scrutiny of the applications, it was submitted by Ld. senior Advocate that the guidelines issued by MOC were completely silent about carrying out post recommendation scrutiny of the applications. Moreover after the recommendation of the Screening Committee came to be approved by the competent authority i.e. Prime Minister as Minister of Coal then the question of carrying out any scrutiny of the applications for their eligibility and completeness did not arise.
69. As regard the role of A-4 H.C. Gupta as Chairman, Screening Committee, it was submitted that except the role of holding the meeting of the Screening Committee he alongwith all other members of the Screening Committee stood on the same footing. It was pointed out that the office memorandum vide which the Screening Committee came to be constituted did not stipulate any stand-alone role of Chairman Screening Committee as different from that of other members of the Committee. While referring to the deposition of PW- 16 Sh. N.R. Dash, it was pointed out that all the decisions were arrived at by the Screening Committee after due discussion and deliberations and the same were unanimous in nature.
70. Ld. senior Advocate Sh. Mohit Mathur also referred to the applications of all the 10 applicant companies who had applied for "Thesgora-B/Rudrapuri" coal block and stated that the two companies M/s KSSPL and M/s Revati Cement Pvt. Ltd. were best placed CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 55 of 350 companies amongst all the applicant companies who could have been allotted the said coal block by the Screening Committee.
71. As regard M/s Birla Corporation Ltd. it was submitted that in the 36th Screening Committee itself the said company was recommended for allocation of another coal block i.e. "Bikram coal block". As regard M/s Prism Cement Ltd., Satna, it was submitted that the company was allocated a coal block in the 34th meeting of the Screening Committee and thus it was not considered for allocation of any coal block by the 36th Screening Committee.
72. As regard preparation of minutes of 36th Screening Committee meetings, it was submitted that the same were prepared in accordance with the provisions of manual of office procedure. It was submitted that had there been any dissent or contrary view/opinion in arriving at its final decision by the Screening Committee then the minutes would have mentioned the same. It was thus pointed out that since the final recommendations of the Screening Committee were unanimous so in the minutes no contrary views or opinion find mention.
73. It was further submitted that if the entire discussion which took place in the meeting was to be reproduced then the minutes of the meeting would have run into hundreds of pages. It was also submitted that there was no requirement under the guidelines issued by MOC to prepare any inter-se merit or comparative chart and in fact from the final recommendation arrived at by the Screening Committee CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 56 of 350 it is clear that inter-se merit was arrived at after duly taking into consideration all the relevant factors. It was also submitted that prosecution has failed to examine PW Sanjiv Mittal, Director, CA-I MOC who could have actually thrown light as to the circumstances under which applications were processed in MOC before they were sent to Administrative Ministry/State Governments/CMPDIL. It was also submitted that even no officer from PMO was examined by the prosecution and thus adverse inference ought to be drawn against prosecution that the said witnesses of MOC and PMO, if examined would not have supported the case of prosecution.
74. It was thus submitted by Ld. senior Advocate that ingredients of none of the offences be that of criminal conspiracy, or that of criminal breach of trust or of criminal misconduct under P.C. Act were made out against A-4 H.C. Gupta. He was thus prayed to be acquitted.
Arguments on behalf of A-5 K.S. Kropha.
75. As regard A-5 K.S. Kropha Ld. Counsel Sh. B.S. Mathur adopted the arguments as were addressed by Ld. senior Advocate Sh. Mohit Mathur qua A-4 H.C. Gupta. However in addition thereto it was also submitted by Ld. Counsel Sh. B.S. Mathur that though admittedly A-5 K.S. Kropha beside being Joint Secretary MOC was also Member Convener Screening Committee but there were no rules and regulations which defined the role of member convener of any such meeting. It was thus submitted that the role of A-5 K.S.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 57 of 350 Kropha in the Screening Committee was similar to that of other Screening Committee members except that he used to convene meeting of the screening committee as and when directed by A-4, H.C. Gupta who was chairman screening Committee. It was also submitted that as Joint Secretary, MOC, A-5 K.S. Kropha was having multifarious duties and thus it could not be expected of him that he should have personally supervised the working of CA-I Section even in the circumstances when no difficulty in their working was brought to his knowledge by any of his subordinate officers in MOC. It was also submitted that from the deposition of PW-13 V.S. Rana it was clear that he had made substantial improvements over his statements made u/s 161 Cr.PC both in the present case and as made by him during investigation of other coal block allocation matters and the same were clearly in order to save his own skin and were made at the behest of CBI. It was submitted that the four officials of the office of coal controller who were deputed to MOC to assist in the receiving of the applications never met A-5 K.S. Kropha and thus PW-13 V.S. Rana falsely stated that A-5 K.S. Kropha met them during the course of their stay in Delhi or told them to carry out the work of sorting of applications only.
76. Strong reliance was placed on the provisions of Central Secretariat Manual of Office Procedure to assert that it was the job of CA-I Section only to carry out the checking of applications qua their eligibility and completeness. It was submitted that in the absence of their being any positive evidence led by prosecution that A-5 K.S.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 58 of 350 Kropha was ever informed by any of his subordinate officer/official that checking of applications qua their eligibility and completeness has not been carried out so no presumption in this regard can be drawn against the accused that checking of the applications qua their eligibility and completeness was not carried out in pursuant to a criminal conspiracy much less hatched by MOC officers with the private applicant companies.
77. It was also submitted that from the deposition of various prosecution witnesses it has clearly come on record that the decision of the screening committee was unanimous in nature and thus the chairman or member convener of the screening committee can not be singularly held liable for the decision of the entire screening committee. It was also submitted that during the course of trial it has come on record that A-1 M/s KSSPL and M/s Revati Cement Pvt. Ltd. were the most suitable companies amongst all the ten applicant companies which could have been allotted Thesgora B/Rudrapuri coal block by MOC.
78. It was also submitted that even otherwise the charge of criminal conspiracy can not hold ground against A-5 K.S. Kropha in the absence of any sanction u/s 197 Cr.PC as all the acts were admittedly done by him in the discharge of his official duties.
79. However at a later stage additional written submissions were also filed jointly for A-4 H.C. Gupta and A-5 K.S. Kropha by Ld. Counsel Sh. B.S. Mathur.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 59 of 350
80. In the said additional written submissions, it was submitted that while it was the responsibility of PW-13 V.S. Rana being Branch In-charge CA-I Section and Under Secretary, MOC to deal with receipt and processing of applications but it was also submitted that CA-I Section followed the same procedure and practice in receipt of applications, checking and further processing as was followed qua the applications dealt with by 34th Screening Committee. It was submitted that whatever exercise of checking of applications was to be done at MOC as per the guidelines, the same was presumably done by CA-I Section, MOC as per the past practice and in compliance of orders of Secretary MOC dated 04.11.2006 as well as the rules and provisions of Manual of Office Procedure and the guidelines. It was also submitted that no incomplete applications used to be received at MOC and the case of A-1 M/s KSSPL appears to be a solitary exception where part of one document namely the audited balance sheets for two years were found not enclosed by the applicant company. It was further submitted that the said lacuna however came to the notice of the accused MOC officers only during the course of investigation of coal block allocation matters by the CBI. As regard eligibility of various applicant companies, it was submitted that all the applicant companies including A-1 M/s KSSPL were found to be eligible as per the eligibility criteria laid down in the guidelines. It was reiterated that CA-I Section at no point of time put up any note expressing difficulty in scrutinizing the applications for their eligibility and completeness even though for various issues CA-I Section used to put notes before the senior officers in the relevant files. It was also CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 60 of 350 submitted that in any case checking of applications was not the job of senior officers of the rank of Joint Secretary or Secretary but was that of CA-I Section of which PW-13 V.S. Rana was Branch In-charge and Sh. Sanjiv Mittal was Director. It was also submitted that PW-13 V.S. Rana, Under Secretary, MOC did not put up any note informing the higher officers regarding number of applications received or manner of processing the same including forwarding of the applications to the concerned stake holders for their views/recommendations.
81. It was thus submitted that as the applications were admittedly dispatched to Administrative Ministries/State Governments concerned and to CMPDIL under the signatures of PW-13 V.S. Rana only so both A-4 H.C. Gupta and A-5 K.S. Kropha remained under the impression that guidelines issued by MOC regarding checking of applications have been duly complied with. A number of contradictions/improvements were pointed out in the deposition of PW-13 V.S. Rana to show that his deposition was not reliable.
82. In support of their submissions Ld. senior Advocate Sh. Mohit Mathur for A-4, H.C. Gupta and Ld. Counsel Sh. B.S. Mathur for A-5, K.S. Kropha placed reliance upon the following case law:
S. Case Title Citation
No.
1. UOI Vs. Major J.S. Khanna 1972 (3) SCC 873
2. S.P. Bhatnagar Vs. State of Maharashtra 1979 (10 SCC 535)
3. S.K. Kale Vs. State of Maharashtra 1977(2) SCC 394
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 61 of 350
4. State of Maharashtra Vs. S.N. Thapa 1996 (4) SCC 659
5. C. Chenga Reddy and Ors. Vs. State of AP 1996 (10) SCC 193
6. R. Sai Bharathi Vs. J. Jayaalalitha & Ors. 2004 (2) SCC 9
7. Indira Dalal Vs State of Haryana (2015) 11 SCC 31
8. John Pandian Vs. State 2010 (14) SCC 129
9. State Vs. Nalini & Ors. (1999) 5 SCC 253
10 State of Kerala Vs. P. Sugathan (2000) 8 SCC 203
11 L.K. Gupta 2014 SCC Online Del
4036 Delhi High Court
12 Vinay Jain Vs. State 2015 (2) JCC 1427
13 Anil Maheshwari (2013) 136 DRJ 249
Delhi High court
14 K.R. Purshottaman Vs State of Kerela (2005) 12 SCC 631
15 Velji Raghavi Patel Vs. State of AIR 1965 SC 1433
Maharashtra
16 S.W. Palaniktar Vs. State of Bihar 2002 (1) SCC 241
17 Alagiri and Anr. Vs. State 1996 CrLJ 2978
18 Jiwan Dass Vs. State of Haryana 1999(2) SCC 530
19 L. Chandraiah Vs. State of A.P 2003 (12) SCC 670
20 R. Balakrishna Pillai Vs. State of Kerala 2003 (9) SCC 700
21 Radha Pisharassiar Amma Vs. State of 2007 (13) SCC 410 Kerala 22 Shreekantia Ramayya Munipalli Vs. State of AIR 1955 SC 287 Bombay 23 Amrik Singh Vs. State of Pepsu AIR 1955 SC 309 24 Matajog Dobey Vs. H.C. Bhari 1955(2) SCR 925 25 State of Madhya Pradesh Vs. Sheetla Sahai 2009 (8) SCC 617 & Ors.
26 Prof. N.K. Ganguly Vs. CBI 2016 (2) SCC 143
27 Runu Ghosh Vs. CBI 2011 SCC Online
(Delhi) 5501
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 62 of 350 28 J. Jayalalitha Vs. State MANU/TN/1423/2 001: 2002-1-LW (Crl.) 37 29 Common Cause Vs. UOI AIR 1999 SC 2979 30 A. Subair Vs. State of Kerala 2009 (6) SCC 587 31 B. Jayaraj Vs. State of Andhra Pradesh 2014 (13) SCC 55 32 P. Satyanarayana Murthy V. District 2015 (10) SCC 152 Inspector of Police, State of Andhra Pradesh 33 N. Sunkanna Vs. State of Andhra Pradesh 2016 (1) SCC 713 34 C.K. Jaffer Sharief Vs. State through CBI (2013) 1 SCC 205 35 UOI Vs. J. Ahmed (1979) 2 SCC 286 36 Abdulla Mohd. Pagarkar Vs. State (1980) 3 SCC 110 37 Surinder Kaur Vs. State of Haryana (2014) 15 SCC 109 38 C.K. Damodaran Nair Vs. Govt of India 1997 (9) SCC 477 39 A. Sivaprakash Vs State of Kerala 2016 SCC online SC 482 40 Subhash Prabat Sonvane Vs State of Gujrat (2002) 5 SCC 86 41 Narender Singh Vs. State of MP 2004 (10) SCC 699 42 Kanhai Mishra Vs. State of Bihar 2001 (3) SCC 451 43 Bipin Shanilal Panchal Vs. State of Gujrat & (2001) 3 SCC 1 Anr.
44 Rakesh Mohindra Vs. Anita Beri 2015 SCALE (12) 412 45 Ramji Dayawala & Sons (P) Ltd. VS. Invest 1981 AIR 2085 SC :
Import (1981) 1 SCC 80
46 Jamal Uddin Ahmed Vs. Abu Saleh 2003 (4) SCC 257
Najmuddin and Anr.,
47 Sarwan Singh Vs. State of Punjab AIR 1957 SC 637
48 Narender Singh and Anr. Vs. State of MP 2004 (10) SCC 699
49 Bhagirath Vs.State of Madhya Pradesh 1976 (1) SCC 233
50 Ravindra Kumar Dey Vs. State of Orissa (1976) 4 SCC 233
51 TSR Subramanian & Ors. Vs. UOI & Ors. (2013) 15 SCC 732
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 63 of 350 52 Commissioner of Police Vs. Gorhandas AIR 1952 SC 16 Bhanji 53 Mohinder Singh Gill Vs. The Chief Election AIR 1978 SC 851, Commissioner New Delhi and Ors. (1978) 1 SCC 405 54 Villianur Iyarkkai Padukappu Maiyam Vs. (2009) 7 SCC 561 Union of India 55 Jugraj Singh and Anrs. Vs. Jaswant Singh AIR 1971 SC 761, and Ors. (1970) 2 SCC 386 56 Twarku Vs. Surti AIR 1997 H.P 76 57 Kartar Singh Vs. DDA and Anr. AIR 2000 Delhi 184 58 Ashok Kumar Aggarwal Vs. CBI (2016) 227 DLT (CN B) 12
83. Prosecution was thus stated to have miserably failed in proving its case against both A-4 H.C. Gupta and A-5 K.S. Kropha. They were accordingly prayed to be acquitted.
Arguments on behalf of A-6 K.C. Samria
84. As regard A-6 K.C. Samria, the then Director, CA-I, MOC, it was submitted by Ld. Counsel Sh. Percivel Billimoria that as per the prosecution case itself accused was not posted in CA-I Section, MOC either at the time when the advertisement vide which applications were invited by MOC for allocation of captive coal blocks was issued or the applications so received were processed in CA-I Section, MOC. It was submitted that accused who was posted in CA-II Section and Vigilance Section of MOC was given additional charge of CA-I Section on 16.03.2007. It was also submitted that accused was relieved from his duties in CA-II Section and Vigilance Section on 16.07.2007 and was finally posted as Director, CA-I Section on CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 64 of 350 08.08.2007. It was further submitted that as per the prosecution case itself copies of the applications were sent to State Governments and Administrative Ministries or to CMPDIL even before 16.03.2007 i.e. the date when A-6 K.C. Samria was entrusted with the additional work of CA-I Section, MOC. It was further submitted that as per the guidelines issued by MOC itself the applications so received were to be processed by CA-I Section in as much as they were to be checked for their eligibility and completeness before being sent to various State Governments and Administrative Ministries. It was thus submitted that prosecution has not led any evidence to show that at any point of time the CA-I Section, officials/officers brought to the knowledge of A-6 K.C. Samria that the work relating to checking of applications qua eligibility and completeness has not been undertaken by them. It was in these circumstances submitted that A-6 K.C. Samria had no reason to presume that CA-I Section, MOC has not undertaken its work as was required to be done in terms of the guidelines issued by MOC. It was further submitted that in fact the job of evaluating the applications and the collating of information, its analysis much less evaluation thereof was primarily the job of Administrative Ministries and the State Governments. It was also submitted that the letters vide which applications were sent to the State Governments and Administrative Ministries and as were issued under the signatures of PW-13 Sh. V.S. Rana clearly mentioned the documents which were required to be annexed with the applications. It was thus submitted that at no point of time either before the Screening Committee meeting took place or during the course of CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 65 of 350 meeting or even subsequent thereto the Administrative Ministries or the State Governments pointed out that the documents annexed with the applications of A-1 M/s KSSPL were not complete in terms of the guidelines issued by MOC.
85. It was further submitted that admittedly A-6 K.C. Samria was not a member of the Screening Committee and his role as Director CA-I Section, MOC was only to ensure proper administrative arrangements for the Screening Committee meeting and availability of all requisite documents to the members of Screening Committee. While referring to the deposition of PW-16 N.R. Dash it was submitted that admittedly A-6 K.C. Samria was not present throughout the entire duration of meeting of Screening Committee. In these circumstances, it was submitted that even subsequent to the meeting of Screening Committee when the minutes were prepared by CA-I Section, MOC, he gave directions or information only as regard the matters which were discussed in his presence in the Screening Committee meeting. It was submitted that qua all other aspects the information and directions were given by Joint Secretary, Sh. K.S. Kropha towards preparation of minutes.
86. As regard supply of documents to members of Screening Committee, it was submitted that a chart containing the information furnished by various applicant companies was duly supplied to all the Screening Committee members. Reference in this regard was made to the deposition of PW-16 Sh. N.R. Dash who stated that in the first meeting of Screening Committee, documents were supplied to all the CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 66 of 350 members of Screening Committee. It was also pointed out that admittedly on behalf of Government of Madhya Pradesh different representatives were present in the successive Screening Committee meetings. Referring to the deposition of PW-9 Sh. Sewa Ram and PW -11 Sh. S.K. Mishra, it was pointed out that admittedly Sh. S.K. Mandal who attended the first meeting of the 36th Screening Committee meeting did not make any note in the files and also did not interact with the other representatives of the State Government of Madhya Pradesh who went to attend the successive Screening Committee meetings. It was thus submitted that on this account PW- 11 Sh. S.K. Mishra stated that in the final Screening Committee meeting no document was supplied to the members even though as per PW-16 Sh. N.R. Dash a folder containing documents was supplied to all the members of Screening Committee in the first meeting itself.
87. As regard the issue of sending copy of applications to Ministry of Power by MOC after A-6 K.C. Samria had joined CA-I Section, it was submitted that the present case pertains to coal blocks reserved for non-power sector and thus the applications relevant to the present case were sent to Administrative Ministry i.e. Ministry of Steel and to State Government of Madhya Pradesh and the same were admittedly sent prior to joining of CA-I Section by A-6 K.C. Samria.
88. As regard the application of M/s BLA Power Ltd. it was submitted that admittedly M/s BLA Power Ltd. had proposed to establish a power project and thus the said company could not have CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 67 of 350 been considered for allocation of Thesgora-B/Rudrapuri coal block which was reserved for non-power sector companies only. It was submitted that the entire issue of M/s BLA Power Ltd. was not at all relevant to the matter in issue and even prosecution has not been clear in its submissions qua the claim of said company. It was also submitted that the decision to invite all companies which had made applications for various coal blocks was made by Secretary, Coal in the meeting held on 11.05.2007 with all stake holders. As regard the request dated 10.10.2007 of M/s BLA Power Ltd., it was submitted that the same was merely forwarded to CA-I Section by A-6 K.C. Samria and no directions as such was issued to PW-13 V.S. Rana to send applications of M/s BLA Power Ltd. to Ministry of Power for their comments.
89. It was thus submitted that prosecution has miserably failed to establish the ingredients of either the offence of criminal conspiracy or that of criminal misconduct under Prevention of Corruption Act, 1988 against A-6 K.C. Samria. It was also pointed out that from the role played by A-6 K.C. Samria no inference can even be remotely drawn that he conspired either with the private parties involved or other MOC officers in order to procure allocation of Thesgora- B/Rudrapuri coal block in favour of A-1 M/s KSSPL.
A-6 K.C. Samria was thus prayed to be acquitted.
90. In support of his submissions reliance was placed on the following case law by Ld. Counsel Sh. Percivel Billimoria for A-6 K.C. Samria:
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 68 of 350 S. Case Title Citation No 1 Smt. Runu Ghosh Vs. Central Bureau of [CRL.A. 482/2002] Investigation 2 A. Subair Vs. State of Kerala [(2009) 6 SCC 587] 3 C.K. Damodaran Nair Vs. Government of India [(1997) 9 SCC 477] 4 Union of India Vs. K.K. Dawan [AIR 1993 SC 1478] 5 Union of India and Anr. Vs. Major J.S. Khanna [1972 Cr.L.J. 849] and Major I.C. Lala 6 Major S.K. Kale Vs. State of Maharashtra [1977 Cr.LJ 604;
AIR 1977 SC 822] 7 S.P. Bhatnagar and Anr. Vs. State of [1979 Crl. LJ 566] Maharashtra 8 Abdulla Mohammed Pagarkar etc. Vs. State [1980 Cr.LJ 220] (Union Territory of Goa, Daman, Diu) 9 C. Chenga Reddy & Ors. Vs. State of A.P., [1996 Cr.L.J. 3461 (SC)] 10 Bhagwan Swarup Vs. State of Maharashtra [AIR 1965 SC 682] 11 Badri Rai Vs. State [AIR 1958 SC 953] 12 Major E.G. Barsay Vs. The State of Bombay [1962 (2) SCR 195 at 228] 13 Sardar Sardul Singh Caveeshar Vs. State of [1964 (2) SCR 378] Maharashtra 14 Noor Mohammad Mohd. Yusuf Momin Vs. State [(1970) 1 SCC 696] of Maharashtra 15 Yash Pal Mittal Vs. State of Punjab [(1977) 4 SCC 540] 16 Kehar Singh and others Vs. State (Delhi [1988 (3) SCC 609] Administration) 17 State of Maharashtra and others Vs. Som Nath [1996 (4) SCC 659 Thapa and others at 668] 18 Ajay Aggarwal Vs. UOI & Ors. (1993) 3 SCC 609 19 State Represented by Inspector of Police Vs. [AIR 2009 SC 152] Saravanan and Anr., CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 69 of 350 20 State of Rajasthan Vs. Rajendra Singh [(2009) 11 SCC 106] 21 Mahendra Pratap Singh Vs. State of Uttar [(2009) 11 SCC Pradesh 334] 22 State of Rajasthan Vs. Smt. Kalki and Anr. [AIR 1981 SC 1390] 23 Syed Ibrahim Vs. State of A.P. [AIR 2006 SC 2908] 24 Arumugam Vs. State [AIR 2009 SC 331] 25 Bihari Nath Goswami Vs. Shiv Kumar Singh [(2004) 9 SCC 186] and Ors.
26 Narayan Chetanram Chaudhary and Anr. Vs. [AIR 2000 SC
State of Maharashtra 3352]
27 State of Himachal Pradesh Vs. Lekh Raj and [AIR 1999 SC
Anr., 3916]
28 State of Haryana Vs. Gurdial Singh [AIR 1974 SC
1871]
29 Vadivelu Thevar Vs. The State of Madras [AIR 1957 SC 614]
91. I have carefully perused the record.
92. Before I proceed to discuss the evidence led by the prosecution or by the accused persons, it will be worthwhile to note the often repeated observations of Hon'ble Supreme Court in a number of cases as regard circumstantial evidence or qua cases based on circumstantial evidence.
93. In the case Sharad Birdhichand Sarda (Supra) as has been referred to by Ld. Senior Advocate Sh. Mohit Mathur and Ld. Counsel Sh. B.S. Mathur for A-4 H.C. Gupta and A-5 K.S. Kropha, Hon'ble Supreme Court in Para 152, 153 and 154 as regard cases based on CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 70 of 350 circumstantial evidence observed as under:
"152. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant V. State of Madhya Pradesh1. This case has been uniformly followed and applied by this Court in a large number of later decisions up-to- date, for instance, the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh17 and Ramgopal v. State of Maharashtra 18. It may be useful to extract what Mahajan, J. has laid down in Hanumant case :
It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.
153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra19 where the following observations were made : [SCC para 19, p. 807 : SCC (Cri) p. 1047] Certainly, it is primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 71 of 350 is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendancy, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."
94. Thus in the light of aforesaid well settled principles relating to appreciation of evidence in cases based on circumstantial evidence the facts and circumstances of the present case are required to be examined. It will be seen as to what all incriminating circumstances the prosecution has been successful in proving against the accused persons. Thereafter it will be seen whether all such incriminating circumstances which stands conclusively proved on record form such a chain of incriminating evidence which unerringly points towards the guilt of accused persons only or not. In other words whether the said chain of incriminating circumstances rule out any conclusion which may be consistent with the innocence of the accused persons or not.
(I) Role of Private Parties i.e. A-1 M/s KSSPL, A-2 Pawan Kumar Ahluwalia and A-3 Amit Goyal.
95. I thus now intend to first discuss the role of private parties involved i.e. role of A-1 M/s KSSPL, A-2 Pawan Kumar Ahluwalia and CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 72 of 350 A-3 Amit Goyal in the alleged conspiracy which led to allocation of Thesgora-B/Rudrapuri coal block in favour of A-1 M/s KSSPL.
(A) Whether the application of A-1 M/s KSSPL as submitted under the signatures of A-2 Pawan Kumar Ahluwalia was incomplete in terms of the guidelines issued by MOC governing allocation of coal blocks and was thus liable to be rejected at the initial stage of processing of applications itself by MOC.
96. In order to appreciate the aforesaid issue it will be appropriate to first refer to the guidelines issued by MOC alongwith its advertisement dated 06.11.06 and as were uploaded on the website of MOC. The said guidelines were to govern allocation of captive coal blocks. The guidelines under various heads provided information inter-alia about "How to apply", "Where to apply", "Processing of application", and various other factors on which inter-se priority was to be decided.
The said guidelines as are available at page No. 73-94 in file Ex. PW 1/H (colly) (D-2) read as under:
"How to apply?
I. Application in the prescribed format (five copies) should be filled up. Please note that separate application is to be submitted for each block in case application is made for more than one block. Similarly, separate application is to be submitted in case application is made for more than one end use plant. The details in the format should be filled up in respect of the specific end use plant for which application is made. The details of experience in respect of other plants may be provided in separate sheets.
(i) If the applicant is an end user, the details of the company alongwith the relevant details of the end use CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 73 of 350 plant (for which block is being applied) are to be filled up at relevant places.
(ii) In case the applicant is a JV Mining company (consortium of end user companies) or an Independent Mining company (with firm back-to-back tie up with permitted end users) list of promoter companies or the list of companies with whom tie up for supply of coal has been finalized, quantities to be shared/supplied, and certified copies of agreement/contract etc. are to be provided. The details in respect of finances, end use plant and previous allocation of blocks i.e. SI. No. 8 to 25 and 28, 29 of the application for are to be provided in respect of all the companies with whom the supply agreement is executed. Such details may be provided on separate sheets, in the proforma as given in Form A, with suitable explanation. (Refer Form A) II The following documents should be enclosed along with the application form:
• Certificate of registration showing that the applicant is a company registered under Section-3 of the Indian Companies Act. This document should be duly signed and stamped by the Company Secretary of the Company. (1 copy) • Document showing the person/s who has/have been authorized to sign on behalf of the applicant company while dealing with any or all matters connected with allocation of the sought coal block/s for captive mining with the Government/its agencies. This document should be duly signed and stamped by the Company Secretary of the Company. (5 copies) • Certified copy of the Memorandum and Articles of Association of the applicant Company. (5 copies.) • Audited Annual Accounts/reports of last 3 years.
(5 copies) • Project report in respect of the end use plant. If the project report is appraised by a lender, the appraisal report shall also be submitted. (5 copies) • Detailed Schedule of implementation for the proposed end use project and the proposed coal mining development project including Exploration programme (in respect of regionally explored blocks) in the form of Bar Charts. (5 copies) • Scheme of disposal of unusable containing carbon obtained during mining of coal or at any stage thereafter CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 74 of 350 including washing. This scheme must include the disposal/use to which the middlings, tailings, rejects etc from the washery are proposed to be put. (5 copies) • The above details are required to be submitted in respect of all the concerned companies in case of SPV/JV or Mining company.
• Demand draft of Rs. 10,000/- in favour of PAO, Ministry of Coal payable at New Delhi • A soft copy of details, as filled in the Application Form, is also to be furnished in the specified Database Form (in MS-Excel format) in a CD along with the Application. III Applications without the above accompaniments would be treated as incomplete and shall be rejected."
(Emphasis supplied by me) "Where to Apply?
The application, in five (5) copies, is to be addressed to Sh. Sanjiv Mittal, Director (CA-I) Ministry of Coal and to be submitted in:
Coal India Limited Office Scope Minar, 5th Floor, Laxmi Nagar District Centre Delhi 110092 between 10.30 AM and 4.00 PM on any working day.
The application should reach the Ministry of Coal latest by 12th of January, 2007."
"GUIDELINES FOR ALLOCATION OF CAPTIVE BLOCKS & CONDITIONS OF ALLOTMENT THROUGH THE SCREENING COMMITTEE A. GUIDELINES
1. Applications for allocation of coal blocks for captive mining for the specified end uses shall be made to the Director (CA-I) in the Ministry of Coal in five copies. The application shall be accompanied by the following in addition to any other relevant documentation that the applicant may submit:
• Certificate of registration showing that the applicant is a company registered under Section 3 of the Indian Companies Act. This document should be duly signed and stamped by the Company Secretary of the Company. (1 copy).
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 75 of 350 • Document showing the person/s who has/have been authorised to sign on behalf of the applicant company while dealing with any or all matters connected with allocation of the sought coal block/s for captive mining with the Government/its agencies. This document should be duly signed and stamped by the Company Secretary of the Company. (5 copies) • Certified copy of the Memorandum and Articles of Association of the applicant Company. (5 Copies) • Audited Annual Accounts/reports of last 3 years (5 copies).
• Project report in respect of the end use plant . If the report is appraised by a lender, the appraised report shall also be submitted. (5 Copies) • Detailed Schedule of implementation (milestones and time-line for each milestone) for the proposed end use project and the proposed coal mining development project in the form of bar charts (5 copies). However, the overall time- frame proposed should not exceed the normative time ceiling prescribed.
• Detailed schedule of exploration (milestones and time- line for each milestone) in respect of unexplored blocks. However, the overall time-frame proposed should not exceed the normative time ceiling prescribed.
• Scheme for disposal of unusable containing carbon obtained during mining of coal or at any stage thereafter including washing. This scheme must include the disposal/use to which the middlings, tailings, fines, rejects, etc. from the washery are proposed to be put. (5 copies) • Demand draft for Rs. 10,000/- in favour of PAO, Ministry of Coal payable at New Delhi.
• A Soft Copy of details, as filled in the Application Form, is also to be furnished in the specified Database Form (in MS- Excel format) in a CD along with the Application. Applications without the above accompaniments would be treated as incomplete and shall be rejected.
2. In respect of fully explored blocks, geological data may be obtained from CMPDIL, NLC or the State agency concerned, as the case may be, on nominal charges. However, full cost of exploration and geological reports would be reimbursed to the agency concerned within six (6) weeks of date of issue of allotment letter.
3. Where only regionally explored blocks are offered for CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 76 of 350 allocation, the detailed exploration/prospecting in the said blocks shall be done by the allocatee company under the supervision of CMPDIL.
4. Replacement of linkage with coal to be produced from the allocated captive coal block can be permitted by the Screening Committee subject to safeguarding the interest of CIL and its subsidiaries.
5. Disposal of production during the development phase of the captive mine to the local CIL Subsidiaries has been allowed at a price to be determined by the Government.
6. In order to promote scientific and proper mining the larger blocks shall not be sub-blocked into smaller ones. Only natural sub-blocks will be formed.
7. Allotment of Captive blocks to consortium of group of companies.
(i) If requirement of coal by an applicant does not match with the reserves in a natural block then clubbing of requirements may be resorted to and in case a number of applicant companies form a consortium for utilisation of a block for their captive use, the same may be considered for allocation under a legally tenable arrangement.
(ii) More than one eligible and deserving companies will be allowed to do captive mining of coal by forming a joint venture coal mining company. The constituent applicant companies would hold equity in the joint venture company in proportion to their assessed requirement of coal and the coal produced would be exclusively consumed in their respective end use projects. Distribution of coal would be in proportion to their respective assessed requirements.
(iii) One or more companies (to be called leader companies) from amongst the selected, could be allowed to do mining of coal in one or more captive blocks and the other companies (to be called associate companies) would get coal from the captive block in proportion to their assessed requirements. The local Coal India subsidiary could facilitate this arrangement by taking a nominal service charge. Leader companies will deliver coal to associate companies at a transfer prices to be determined by the Central Government.
8. Mining of Coal by allottee companies The following dispensations are permitted for mining of coal from captive blocks:
(i) Any of the companies engaged in approved end-uses can itself mine coal from a captive coal block; or CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 77 of 350
(ii) A company engaged in any of the approved end-uses can mine coal from a captive block through a mining company supplying the coal on an exclusive basis from the captive coal block to the end-user company or to its subsidiary company, provided the end-user company has firm tie up with mining company for supply of coal, supported by legally binding and enforceable contract/agreement.
(iii) An independent coal/lignite mining company can also be allocated a captive block on the condition that the entire coal/lignite so mined would be transferred to an end user company(ies) for their captive consumption in the specified end uses;
Provided that the said mining company has firm back-to-back tie up with the specified end user company(ies), supported by legally binding and enforceable supply contract/agreement.
9. Inter-se priority for allocation of a block among competing applicants for a captive block may be decided as per the following guidelines:
• Status (stage) level of progress and state of
preparedness of the projects;
• Net-worth of the applicant company (or in the case
of a new SP/JV, the net-worth of their principals); • Production capacity as proposed in the application ; • Maximum recoverable reserve as proposed in the application;
• Date of commissioning of captive mine as proposed in the application;
• Date of completion of detailed exploration (in respect of unexplored blocks only) as proposed in the application; • Technical experience (in terms of existing capacities in coal/lignite mining and specified end use);
• Recommendation of the Administrative Ministry concerned;
• Recommendation of the State Government
concerned (i.e. where the captive block is
located);
• Track record and financial strength of the company.
Preference will be accorded to the power and the steel sectors. Within the power sector also, priority shall be accorded to projects with more than 500 MW capacity. Similarly, in steel sector, priority shall be given to steel plants with more than 1 CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 78 of 350 million tonne per annum capacity.
B. CONDITIONS OF ALLOTMENT
10. Upon allocation of captive coal block by the Screening Committee the applicant would submit an affidavit in the prescribed format to the effect that all coal mined from the captive block shall exclusively be used in the proposed end use project for which the said block has been allocated and that in case of any slippage in implementation of the end use project or the captive coal mine development project, as per the Schedule of implementation/bar charts submitted and agreed to by the Ministry of Coal, the said block shall be deallocated without any liability to the Government /its agencies, whatsoever.
11. The normative time limit ceilings have been provided to ensure that the coal production from the captive blocks shall commence within 36 months (42 months in case the area is in forest land) of the date of issue of letter of allocation in OC mine and in 40 months (54 months in case the area fall under forest land) from the date of said letter in UG mines.
12. In respect of an unexplored block, the allocattee company shall apply for a prospecting license within three months of the date of issue of allotment. The exploration shall be completed and geological report prepared within two years from the date of issue of prospecting license.
13. Any slippage in meeting with the above time limits, unless previously agreed to by the Screening Committee, for special reasons to recorded in writing, may lead to forfeiture of bank guarantee, or/and cancellation of allocation, previous approval under Section 5(1) of the MMDR Act, 1957 or mining lease, as the case may be.
14. The allocattee company shall be required to submit a bank guarantee equal to one year's royalty amount based on mine capacity as assessed by CMPDIL or NLC, as the case may be, and the weighted average royalty within 3 months of the date of letter of allotment. Subsequently, upon approval of the mining plan the Bank Guarantee amount will be modified based on the final peak/rated capacities of the mine.
15. 50% of the bank guarantee shall be linked to the milestones (time schedule) set for development of captive block, and the remaining 50% to the guaranteed production. The bank guarantee shall be liable to be encashed in the following eventuality:
(i) There shall be an annual review of progress achieved by CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 79 of 350 an allocattee company. In the event of lapses, if any, in the achievements vis-a-vis the milestones set for that year, a proportionate amount shall be encashed and deducted from the bank guarantee.
(ii) Once production commences, in case of any lag in the production of coal/lignite, a percentage of the bank guarantee amount will be deducted for the year. This percentage will be equal to the percentage of deficit in production for the year with respect to the rated/peak capacity of the mine, e.g., if rated/peak capacity is 100, production as per the approved mining plan for the relevant year is 50 and actual production is 35, then (50-35)/100 X 100 = 15% will lead to deduction of 15% of the original bank guarantee amount for that year. Upon exhaustion of the bank guarantee amount, the block shall be liable for de-allocation/cancellation of mining lease.
(iii) The allocatee shall ensure that the bank guarantee remains valid at all times till the mine reaches its rated capacity or till the bank guarantee is exhausted. Any lapses on this count shall lead to de-allocation/cancellation of mining lease.
16. The Company shall obtain the geological report (in respect of fully explored blocks), on payment of requisite charges, from CMPDIL, NLC or the State Government agency concerned, as the case may be, within six weeks of the date of issue of allotment letter.
17. In respect of a fully explored block, the company shall submit a mining plan for approval by the competent authority under the Central Government within six months from the date of issue of the letter of allocation.
18. In respect of an unexplored block, the mining plan shall be submitted for approval by the competent authority within two years and six months from the date of issue of the letter of allocation.
19. Mine opening permission shall be considered only after financial closure for the proposed end use project is achieved.
20. In case a captive block is offered/allocated for washing- cum-end-use all the beneficiated coal from the washery would exclusively be used in the proposed end use project of the allocatee company as approved by the Central Government and not for commercial use or otherwise. All middlings, tailings, or rejects from the washery, as the case may be, and all unusables containing carbon obtained during the mining of coal or in any process thereafter, if any, shall be used for captive consumption only by the allocattee in his proposed end use project or as per the scheme for disposal submitted by the CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 80 of 350 applicant and agreed to by the Screening Committee. In the event that disposal is allowed by the Government, the modalities of disposal of surplus coal/ middlings/ rejects, if any, would be as per the prevailing policy/ instructions of the Government at the relevant point in time and could also include handing over such surplus coal/ middlings/rejects to the local CIL subsidiary or to any person designated by it at a transfer price to be determined by the Government.
(Emphasis supplied by me) PROCESSING OF APPLICATION "The applications received in the Ministry of Coal in five copies, after being checked for eligibility and completeness, would be sent to the administrative Ministry/State Government concerned for their evaluation and recommendations. After receipt of recommendations of the administrative Ministry/State Government concerned, the Screening Committee would consider the applications and make its recommendations. Based on the recommendations of the Screening Committee, Ministry of Coal will determine the allotment."
(Emphasis supplied by me)
97. Thus from a bare perusal of the aforesaid guidelines under the heading "How to Apply" it is clear that every applicant company was required to enclose alongwith its application "Audited Annual Accounts/Reports of last 3 years (5 copies)" beside various other documents mentioned over there. It was further mentioned that the applications without the above accompaniments would be treated as incomplete and shall be rejected. Thus what is required to be seen is whether the application of A-1 M/s KSSPL was accompanied with all the documents as were required to be annexed in terms of the guidelines or not.
98. In this regard it will be worthwhile to refer to application dated CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 81 of 350 04.01.2007 Ex. PW1/F (colly) (D-10) of A-1 M/s KSSPL as was submitted to MOC on 09.01.2007 seeking allotment of Thesgora- B/Rudrapuri Coal block. Alongwith the said application various documents were annexed by the company. The "LIST OF ANNEXURES" (available at page No. 8 in D-10) as enclosed with the application mentioning details of various documents annexed read as under:
"List of Annexures.
1. Certificate of Incorporation
2. Authorisation Certificate from company
3. Memorandum & Articles of Association
4. Audited Balance sheet/Annual Accounts
5. Project Report
6. Implementation schedule of end use project & coal mining development
7. Scheme for disposal of middling & rejects
8. Bank draft.
9. Soft copy of application form in CD."
(Emphasis supplied by me)
99. Thus it is seen that various documents so annexed with the application by the company M/s KSSPL were projected to be in accordance with the guidelines issued by MOC.
100. In fact in the covering letter dated 04.01.2007 of the application (available at page 6 in D-10) also it is specifically stated that the application is being submitted in the duly filled in prescribed proforma alongwith the other requisite documents and the demand draft of Rs. 10,000/- towards processing fees. Even the cover page of Annexure IV (available at page 29 in D-10) mentions the title "AUDITED BALANCE SHEET/ANNUAL ACCOUNTS"
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 82 of 350 It is however the case of prosecution that though such a claim of having annexed all the required documents with the application has been made in the application Ex. PW 1/F (colly) (D-
10) by the company M/s KSSPL but actually all the requisite documents were not annexed. The Audited Annual Accounts/Reports for the past three years were actually not enclosed with the application. The claim so made by the company in its application or in the covering letter was thus stated to be false.
101. As per the guidelines issued by MOC governing allocation of coal blocks the company M/s KSSPL was clearly and undisputedly required to annex Audited Annual Accounts/Reports of the past three years i.e. for the year(s) 2005-06, 2004-05 and 2003-04. However a perusal of documents as annexed in Annexure-IV of the application Ex. PW 1/F (colly) (D-10) shows that while no Annual Account/Report much less audited was filed for the year 2005-06 and even as regard the year 2004-05 only provisional balance sheet as on 31.03.2005 was filed. For the year 2003-04 however the Audited Annual Account/Report as on 31.03.2004 of M/s Ahluwalia Mining Limited has been annexed. However for the year 2002-03 and 2001-02 the Audited Annual Accounts/Reports of M/s Ahluwalia Mining Ltd. have also been annexed. [Admittedly the name of M/s Ahluwalia Mining Ltd. was subsequently changed to M/s KSSPL.]
102. Thus even if company M/s KSSPL chose to file the Audited Annual Account/Report for the year 2002-03 or for the year 2001- 2002 (even though there was no requirement of filing the same) then CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 83 of 350 also it was still required to file the Audited Annual Accounts/Reports for the year(s) 2005-06 and 2004-05 as per the guidelines issued by MOC.
103. Thus on the face of it the application of A-1 M/s KSSPL was clearly incomplete as it was not accompanied with the requisite Audited Annual Accounts/Reports for the year(s) 2005-06 and 2004-
05. In fact during the course of entire trial no explanation has been furnished by A-1 M/s KSSPL as to why the Annual Account/Report for the year 2005-06 was not annexed with the application much less the Audited Annual Account/Report. As already mentioned even for the year 2004-05 only provisional balance sheet was filed. For a ready reference the Audited Annual Accounts/Reports which were required to be filed and the Annual Accounts/Reports which were actually filed by the company have been tabulated as under:
Audited Annual Accounts/Reports which were required to be filed by company M/s KSSPL and the Annual Accounts/ Reports actually filed by company M/s KSSPL with the application S. No. Year Required to be Actually filed by Whether filed as per company M/s Audited guidelines of KSSPL MOC 1 2005-06 Yes No ---
2 2004-05 Yes Only provisional No
balance sheet
filed
3 2003-04 Yes Yes Yes
4 2002-03 No Yes Yes
5 2001-02 No Yes Yes
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 84 of 350
104. My subsequent discussion would however show that even though the Audited Annual Accounts/Reports for the year(s) 2004-05 and 2005-06 were very much available with the company M/s KSSPL at the time of submission of its application to MOC but for reasons best known to it the same were not filed. In fact no reason at all has been put forth during the entire trial as to why the same were not filed. It was merely stated that the same was the result of an inadvertent mistake.
105. At this stage I may also mention that I am still not on the issue as to whether the figures of financial strength of the company i.e. its net-worth or the existing production capacity of the end use plant as mentioned in the application were correct or not. I shall be discussing the said aspects at a later stage.
106. As regard the Annual Accounts/Reports of the company for the aforesaid two year(s), prosecution examined PW 4 Rakesh Kumar Meena, ROC cum official liquidator, Jaipur, Rajasthan. During the course of investigation he had provided various documents of M/s KSSPL including the Audited Annual Accounts/Reports as were submitted by the company for the year 2003-04, 2004-05 and 2005- 06 with the office of ROC, Jaipur. From the said record which now stands proved on record it is clear that the Audited Annual Accounts/Reports of the company M/s KSSPL for the year 2004-05 was filed with ROC on 25.11.2005. The Audited Annual Accounts/Reports for the year 2005-06 was though uploaded by the company on the website of Ministry of Corporate Affairs on CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 85 of 350 16/17.01.2007 but the same was approved and accepted by the company in its AGM held on 30.09.2006.
107. A perusal of form-23 AC Ex. PW 3/D (colly) for the year 2005- 06 as was filed by company M/s KSSPL with ROC shows that the annual accounts of the company for the year 2005-06 was prepared, audited and placed before AGM on 30.09.06. A-2 Pawan Kumar Ahluwalia uploaded said form-23 AC on the website of Ministry of Corporate Affairs under his own digital signatures. Alongwith the said form-23 AC a notice earlier issued for holding AGM of the company on 30.09.2006 alongwith agenda of the meeting was also annexed. In the agenda it was stated that the AGM has been called to receive, consider and adopt the audited balance sheet as on 31.03.2006 and the profit and loss account for the year ended on the date and the reports of the directors and auditors thereon. Form-23 AC further states that the AGM as mentioned above was held on 30.09.2006.
108. Similarly, the record of ROC, Jaipur shows that the Audited Annual Accounts of the company M/s Ahluwalia Mining Private Limited for the year 2004-05 were duly signed on 01.09.2005.
109. Thus from the said documents of ROC which clearly stands proved on record, [(All documents are part of Ex. PW 4/C and PW 4/D) (D-38)] it is crystal clear that well before the date of submission of application of A-1 M/s KSSPL, Ex.PW1/F (colly) (D-10) to Ministry of Coal i.e. as on 09.01.2007 seeking allocation of Thesgora- B/Rudrapuri coal block, Audited Annual Accounts/Reports for the year CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 86 of 350 2005-06 and of the year 2004-05 of the company were very much available with it.
110. However on behalf of both A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia it has been only submitted that inadvertently the provisional balance sheet for the year 2004-05 instead of Audited balance sheet was filed by the staff of the company with the application. It was also stated that the wrong figures of financial strength i.e of net-worth as on 31.03.2006 mentioned in the application Ex. PW 1/F (colly) (D-10) was primarily on account of a conceptual mistake committed by the staff of the company in calculating the net-worth from the balance sheets.
As mentioned earlier, I shall be discussing this issue of wrong figures of financial strength of the company at a later stage of the present judgment.
111. What is however important to note is that no explanation at all of any nature whatsoever has been furnished as to why the Audited Annual Accounts/Reports for the year 2005-06 or for the year 2004-05 were not filed even though the same were available with the company as on the date of submission of application to MOC. As regard the plea of inadvertent mistake, A-2 Pawan Kumar Ahluwalia stated that the application in question was prepared by different departments of the company and he merely signed it being the authorised signatory of the company. He thus claimed complete ignorance both as regard the contents of the application or the CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 87 of 350 documents annexed with it. He stated the non-filing of Audited Annual Accounts/Reports of the year 2004-05 and 2005-06 purely on account of an inadvertent error of the staff of the company.
112. However in my considered opinion the explanation of inadvertent mistake of the staff of company as regard filing of only provisional balance sheet for the year 2004-05 or in not filing of any Annual Account/Report for the year 2005-06 much less Audited, is a very feeble attempt being made by A-2 Pawan Kumar Ahluwalia so as to shrug off his responsibility.
113. A-2 Pawan Kumar Ahluwalia in order to prove his plea of defence that he was not aware of the contents of the application, examined one of his employee DW-6 B.K. Tripathi. This witness stated that in the year 2006-07 he was working as Asst. Manager Marketing in M/s KSSPL. He further stated that in the first week of January 2007 at the asking of Accounts Department of the company he had carried five sets of applications alongwith one set of documents from Satna to Barbil, Orissa for getting the applications signed from Sh. Pawan Kumar Ahluwalia. He further stated that after reaching the office of Sh. Pawan Kumar Ahluwalia at the office of M/s Hima Ispat Ltd. at Barbil one of the staff member collected the said set of documents from him for preparing photocopies thereof and stated that he already knows the purpose of his visit. He also then told him to go inside and get the applications signed form Sh. Pawan Kumar Ahluwalia.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 88 of 350
114. He further stated that when he presented the applications to Sh. Pawan Kumar Ahluwalia, Orissa then Sh. Pawan Kumar Ahluwalia asked him as to whether the applications have been correctly and properly filled and to which he claimed ignorance. He further deposed that Sh. Pawan Kumar Ahluwalia then talked to someone at Satna office on telephone and thereafter signed the applications. DW-6 B.K. Tripathi however claimed ignorance about the conversation which A-2 Pawan Kumar Ahluwalia had with Satna office or with whom he talked to.
115. However no evidence has been led on record either by A-1 M/s KSSPL or by A-2 Pawan Kumar Ahluwalia as to who actually prepared the applications or as to why the concerned person did not annexe the Audited Annual Accounts/Reports for the said two years despite being available with the company. Certainly onus to prove the said plea of defence even by preponderance of probability was upon the accused persons as the same was asserted by them only. Strangely enough no one from the Satna office of the company M/s KSSPL was examined who could claim and explain as to under what circumstances the application in question was filled in or as to why certain requisite documents even though available with the company were not annexed with the application.
116. At this stage I may mention as a mark of caution that though no benefit to prosecution is sought to be given on account of any weakness of defence but it is only being shown that accused persons have failed to prove even by preponderance of probabilities their CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 89 of 350 claim of inadvertence regarding non-filing of requisite documents despite being available with the company M/s KSSPL and as regard other misrepresentations made in the application.
117. Prosecution was in fact only required to prove that the application Ex. PW 1/F (colly) (D-10) of A-1 M/s KSSPL was signed and submitted to MOC under the signatures of its authorised signatory/director A-2 Pawan Kumar Ahluwalia. However it will be worthwhile to point out that accused persons themselves have also not disputed the said fact. Rather their own witness DW-6 B.K. Tripathi deposed that A-2 Pawan Kumar Ahluwalia before signing the application made enquiry from him as to whether the applications have been correctly and properly filled or not and when he claimed ignorance in this regard then A-2 Pawan Kumar Ahluwalia also made enquiry from his Satna office in this regard and thereafter only he signed the applications.
118. However as already mentioned no evidence has been led on record by A-2 Pawan Kumar Ahluwalia as to what conversation he had with Satna office or which employee(s) of company M/s KSSPL prepared the application or in other words whose inadvertent mistake it was in not enclosing all the requisite documents even though available with the company. The fact however remains that even if the deposition of DW-6 B.K. Tripathi is believed to be true then also it stands proved on record that A-2 Pawan Kumar Ahluwalia signed the application only after being satisfied that the same has been correctly and properly filled.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 90 of 350
119. Thus at the cost of repetition it may be stated that once the prosecution discharged its burden of proving that application Ex. PW 1/F (colly) (D-10) of A-1 M/s KSSPL seeking allocation of Thesgora- B/Rudrapuri coal block was signed and submitted to MOC under the signatures of A-2 Pawan Kumar Ahluwalia then it was only for A-2 Pawan Kumar Ahluwalia to prove at least by preponderance of probability his claim that he was having no knowledge of the documents annexed with the application or that of the contents of the application. Even A-1 M/s KSSPL has also not made any claim disowning its responsibility towards the incomplete application submitted on its behalf by its officers/directors to MOC.
120. Thus in my considered opinion prosecution has been completely successful in proving the circumstance that the application Ex. PW 1/F (colly) (D-10) of A-1 M/s KSSPL was signed and submitted to MOC under the signatures of A-2 Pawan Kumar Ahluwalia. It also stands proved on record that before signing the application A-2 Pawan Kumar Ahluwalia satisfied himself that the application has been correctly and properly filled. Moreover A-2 Pawan Kumar Ahluwalia being the authorised signatory and director of A-1 M/s KSSPL can not even otherwise disown his responsibility in this regard. In these circumstances, it will be thus completely legal and logical to conclude that A-2 Pawan Kumar Ahluwalia signed the application of A-1 M/s KSSPL having full knowledge of the contents of the application and also of the annexures enclosed. On the other hand both A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia have CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 91 of 350 completely failed in raising any shadow of doubt about the said claim of prosecution or any evidence led by prosecution in support thereof which may lead me to disbelieve the case of prosecution in that regard.
121. Thus it stands clearly proved on record that the application of A-1 M/s KSSPL as submitted to MOC seeking allocation of Thesgora- B/Rudrapuri Coal block was incomplete as it was not accompanied with the requisite documents i.e. the Audited Annual Accounts/Reports for the years 2005-06 and 2004-05. Thus in terms of the guidelines of MOC the application of A-1 M/s KSSPL was per- se liable to be rejected being incomplete even before copies thereof were sent either to Ministry of Steel or to State Government of Madhya Pradesh or to CMPDIL.
122. At this stage I would also like to deal with the contention of Ld. Counsel Sh. Pavan Narang that the prosecution has though proved the signatures of A-2 Pawan Kumar Ahluwalia on the application Ex. PW1/F(colly) (D-10) but the contents thereof have not been proved.
123. PW-3 Prashant Ahluwalia who was brother of A-2 Pawan Kumar Ahluwalia and was also a director of A-1 M/s KSSPL identified signatures of A-2 Pawan Kumar Ahluwalia on the application Ex. PW 1/F (Colly) (D-10) and various annexures thereof. He also stated that A-1 M/s KSSPL had also applied to Ministry of Coal (MOC) for allotment of a coal block. The said witness was not at all cross-
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 92 of 350 examined on behalf of either the company A-1, M/s KSSPL or A-2 Pawan Kumar Ahluwalia. In fact the correctness of his deposition or that of the documents exhibited by him including the application, Ex. PW 1/F (colly) (D-10) was not at all questioned by any of the accused persons.
124. In the aforesaid circumstances the submission of Ld. Counsel for accused that even though the application has been exhibited by the prosecution but the contents thereof have not been proved is certainly not tenable. The prosecution in my considered opinion has even otherwise been clearly successful in proving and establishing on record that application Ex. PW 1/F (colly)(D-10) was the application which was submitted by A-1 M/s KSSPL to MOC. On the other hand, if the application Ex. PW 1/F (colly)(D-10) was not the same application which was submitted by A-1 M/s KSSPL to MOC then after discharge of its burden by prosecution as above the onus shifts upon accused as to what other contents different from that of Ex. PW 1/F (colly) were either mentioned in their application or what other documents were annexed with the application as was submitted by them to MOC. As a mark of caution I may however mention that onus to prove that application Ex. PW 1/F (colly) (D-10) was the application of A-1 M/s KSSPL as was submitted to MOC is in no way being shifted upon the accused persons from prosecution but it is only when prosecution has discharged its burden beyond shadows of all reasonable doubts and proved that application Ex. PW 1/F (colly) (D-
10) is the same application of A-1 M/s KSSPL as was submitted to CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 93 of 350 MOC then if the accused intends to question the correctness of the contents of the application Ex. PW 1/F (Colly) (D-10) than at least he needs to assert/show as to what were the contents of the application as was submitted by them to MOC and in what respect they were different from the one as are mentioned in application Ex. PW 1/F (colly) (D-10).
125. Prosecution in fact also examined PW-1 Dy. SP S.P. Rana, CBI who had collected the application of M/s KSSPL, Ex. PW 1/F (colly) (D-10) from MOC. He clearly stated that the application Ex. PW 1/F (colly) (D-10) was collected by him from MOC after it was produced by PW-5, Sh. Ram Naresh Section officer, CA-I Section, MOC and that too in the presence of two public independent witnesses namely Vishal Tarar and Ayodhya Prasad. However, neither during the course of examination-in-chief of PW-1 Dy. SP S.P. Rana the exhibition of the said application Ex. PW 1/F (Colly) (D-10) was objected to by Ld. Counsel for accused nor in the cross examination of the witness as was carried out by Ld. Counsels for the accused persons the identity or correctness of the application in question was disputed. It was only suggested to the witness that CBI had on its own collected all the files/documents from the office of MOC and later on while sitting at the CBI office prepared various memos and obtained signatures of different persons on the said memos. PW-1 Dy. SP S.P. Rana, however stated the said suggestions to be wrong. What is however important to note is that though Ld. Counsel tried to question the authenticity of the seizure CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 94 of 350 memo(s) prepared by the witness but the correctness of the documents/files including that of application Ex.PW1/F (Colly) was not disputed. Similarly PW 5 Ram Naresh, Section Officer, MOC also stated that various files/documents including the application of M/s KSSPL Ex.PW1/F (colly) (D-10) was produced by him before Dy. SP S.P. Rana and who seized the same vide memo Ex. PW1/E (D-82). In his cross-examination also as conducted by Ld. Defence Counsel for A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia, he stated that document Ex.PW1/F (colly) (D-10) was available in his section only when he handed over the same to CBI. Once again the said witness was also neither suggested nor put any question disputing the correctness of the application Ex.PW1/F (colly)(D-10). However he was also suggested that the documents/files were already collected by CBI from MOC and that he subsequently signed the seizure memos at CBI office. Witness however denied the said suggestion stating it to be false.
126. Moreover in the overall facts and circumstances of the case, knowledge as to the contents of their application can be exclusively to accused applicant company i.e. A-1 M/s KSSPL and its director A- 2 Pawan Kumar Ahluwalia only as the application was submitted under his signatures. Thus u/s 106 Indian Evidence Act, 1872 the accused persons were liable to discharge the said burden of proof especially when the prosecution has first discharged its burden of proving that Ex. PW 1/F (colly) (D-10) is the application of M/s KSSPL as was submitted to MOC and the same was collected from the CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 95 of 350 authority with whom the same was supposed to be available in the routine course of performance of official acts in MOC. Moreover nothing has been alleged as to in what context or manner the contents of application Ex. PW 1/F (colly) (D-10) were different from the application submitted by company M/s KSSPL to MOC, if Ex. PW 1/F (colly) (D-10) is not the same application. Moreover even in their statement recorded u/s 313 Cr.PC both A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia when asked about the application Ex. PW 1/F (colly) (D-10) to be the one as was submitted by M/s KSSPL to MOC, simply answered it as a "matter of record".
Thus in my considered opinion the contention of Ld. Counsel for A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia that the prosecution has only proved the application Ex. PW 1/F (colly) (D-10) but not the contents thereof is completely misplaced being devoid of any legal or logical basis.
127. Be that as it may, the contents of the application Ex. PW1/F (colly) (D-10) can now certainly be referred to in order to see whether A-1 M/s KSSPL made any false claim in its application either qua its net-worth or its existing production capacity of sponge iron or not. The fact that the application of company M/s KSSPL was incomplete has already been discussed and demonstrated above. Certainly in the absence of Audited Annual Accounts/Reports for the year(s) 2005-06 and 2004-05, the application Ex. PW1/F (colly) (D-10) of company M/s KSSPL was clearly incomplete and was accordingly liable to be rejected at the initial stage of processing of the CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 96 of 350 applications itself in accordance with the guidelines issued by MOC .
(B) Whether A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia misrepresented the figures of financial strength i.e. net-worth of the company M/s KSSPL in the application Ex. PW 1/F (colly) (D-10).
128. As regard the figures of financial strength i.e. net-worth as mentioned in the application form at Point no. 10 it has been claimed by the prosecution that the figures mentioned in the application were clearly wrong. The information mentioned in this regard at point nos. 8, 9 and 10 in the application Ex. PW1/F (colly) (D-10) read as under:
03-04 04-05 05-06
8. TURNOVER IN THE LAST 3 YEARS (in Crores) 22.87 57.33 52.54
9. PROFIT IN LAST 3 YEARS (in Crores) 3.00 1.02 1.64
10. NETWORTH (as on 31.03.06) (in Crores) 40.40 64.75
129. Ld. Counsel Sh. Pavan Narang for A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia has however submitted that the discrepancy in the said figures of net-worth mentioned in the application arose on account of some bonafide accounting mistakes committed by the staff in as much as while calculating the net-worth of the company, the staff instead of applying the formula
(i) Net-worth = Share capital as per + reserves and surplus audited accounts applied the formula
(ii) net-worth = (fixed assets + current assets)
- current liabilities Total assets.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 97 of 350
130. It was argued by Ld. Counsel Sh. Pavan Narang that if the net-worth of the company is calculated as per the above formula mentioned at (ii) then the figures mentioned in the application form could clearly be culled out from the Annual Accounts/Reports of the company. It was also submitted by Ld. Counsel that the aforesaid mistake in the application form was a bonafide mistake and there was no malafide intention or malice in mentioning the said figures.
131. While I shall be discussing at a later stage as to what could be the motive in mentioning the highly inflated figures of its net-worth by the company or whether there was any malafide intention on the part of company M/s KSSPL in mentioning the same or not but for the purposes of present discussion it is suffice to state that A-1 M/s KSSPL was clearly found to have mentioned wrong figures as regard its net-worth in the application. In fact both A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia have also not disputed the aforesaid fact except stating that it was the result of an inadvertent mistake. However in this regard, I may mention that despite having an accounts department in the company M/s KSSPL as deposed to by DW-3 Arunendra Prasad Tiwari and DW-6 B.K. Tripathi, both employees of A-1 M/s KSSPL, no one was examined from the accounts department who could even remotely claim or explain that the said figures were mentioned wrongly by him by applying a wrong formula. In fact the issue of mentioning of wrong figures in the application appears to be directly related to non-filing of Audited Annual Accounts/Reports for the year 2005-06 and 2004-05. When CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 98 of 350 the Audited Annual Accounts/Reports for the year 2005-06 and 2004- 05 were admittedly not filed then the question of cross-checking the said figures mentioned in the application either in MOC or in Ministry of Steel or by the officers of Government of Madhya Pradesh does not arise at all. Thus the claim of A-1 M/s KSSPL that if checked the figures mentioned in the application or the factum of wrong formula having been applied in calculating the net-worth would have become clearly evident from the audited balance sheets itself also losses its all significance as no such audited balance sheets were filed alongwith the application either for the year 2005-06 or for the year 2004-05. In the application only the net-worth of the company as on 31.03.2006 was to be mentioned. Thus the Audited Annual Accounts/Reports for the year 2005-06 was the most important document to be filed. Thus it will not be even wrong to state that the Audited Annual Accounts/Reports especially for the year 2005-06 was not filed with the application despite being available with the company M/s KSSPL only with a view to even defeat any attempt if ever made by any authority to cross-check the figure of net-worth as mentioned in the application from the Audited Annual Accounts/Reports, if attached.
132. Moreover as shall be discussed at a later stage also the property being sought for by the company was an important nationalised natural resource i.e. coal of the country and coal was equally crucial as an important raw material to be used by the company M/s KSSPL in its day to day operations and for its future expansion. However the company M/s KSSPL and its CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 99 of 350 officers/directors seems to have dealt with the entire matter in the most casual manner as if they were sure to obtain allocation of a coal block in all eventualities and that the submission of application or other documents by them to MOC was merely a formality. (This conclusion will stand further fortified when at a later stage the role played by accused MOC officers in the coal block allocation process shall be examined).
133. The fact however remains that the figures of financial strength i.e. net-worth as on 31.03.2006 as mentioned in the application Ex. PW 1/F (colly) (D-10) were not only wrong but were also highly inflated.
(C) Whether A-1 M/s KSSPL misrepresented about the existing and the proposed production capacity of its end use project.
134. In the application Ex. PW1/F (colly) (D-10) the existing, proposed and ultimate capacity of the end use project was mentioned as follows:
III PROPOSED END USE (PROJECT) POWER/IRON & STEEL/SPONGE IRON/CEMENT.
(Tick the main end use project, associate end use not to be indicated) Capacity of end use plant LINKAGE LINKAGE LINKAGE Quantity POWER SPONGE mtpa Grade Source MW MW Mtpa WHGB THERMAL 11 EXISTING 10 0.1 0.21936 E/F Korba, Rigarh CAPACITY (SECL, Bilaspur) CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 100 of 350 12 PROPOSED 40 50 0.5 CAPACITY 13 ULTIMATE 50 50 0.6 CAPACITY (TOTAL) 14 ROM COAL 2 MTY REQUIREM ENT 15 LOCATION SAGMA, SATNA (M.P) (District, State)
135. Thus the existing capacity of the end use project was stated as one lac tonne per annum (0.1 MTPA). The prosecution has alleged that the company M/s KSSPL had misrepresented about the said existing production capacity also in as much as in various other documents submitted by the company to different authorities the existing production capacity of the company was never stated to be more than 87000 tonne per annum. On the other hand Ld. Counsel Sh. Pavan Narang has sought to explain the figure of one lac tonne per annum by stating that as the company M/s KSSPL worked for 337 days and 335 days during the financial years 2005-06 and 2006- 07 respectively so the production capacity came to be about one lac tonne per annum. It was further stated that as MOC had not specified any minimum production capacity of the end use project so mentioning of the said figure in no way was relevant to the Screening Committee in making recommendation for allocation of a coal block in favour of A-1 M/s KSSPL. It was also submitted that even otherwise the said capacity was mentioned as the existing installed production capacity of the company and not the actual sponge iron produced by the company in the relevant years.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 101 of 350
136. However, in order to appreciate the aforesaid issue in the light of rival claims made by the prosecution and the accused persons, it will be worthwhile to refer to the company profile of M/s KSSPL as was mentioned in the project report enclosed as annexure-V to the application Ex. PW 1/F (Colly) (D-10).
137. In the said company profile it has been mentioned in Section-I, Chapter-2, Para-1 [at page 96 in Ex. PW 1/F (colly) (D-10)] that the company at present is producing about one lac tonne of sponge iron and is having a linkage of 1,39,600 tonne of coal per annum from M/s SECL. It has been further stated that in second phase i.e. in the year 2007, 2 lacs tonne sponge iron will be added and thereby making a total capacity of 3 lac tonnes by the end of 2007. It is further mentioned that in the third phase another kiln of 2 lac tonnes of sponge iron plant shall be set up. In the fourth phase it is stated that additional sponge iron plant of one lac tonne will be set up by 2010.
138. Thus what has been claimed in the project report is that the company M/s KSSPL is at present producing one lac tonne of sponge iron. The said assertion thus clearly belies the claim being now made that in the application, only the existing production capacity has been mentioned as being 0.1 MTPA (One lac tonne per annum) and not the actual sponge iron being produced by the company.
139. However apart from the aforesaid falsity in the claim of the accused persons that the capacity 0.1 MTPA as mentioned in the CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 102 of 350 application is the existing installed production capacity and not the actual sponge iron being produced, it will be worthwhile to examine as to whether the company was even having the actual installed production capacity of sponge iron to the tune of 0.1 MTPA also or not.
140. In this regard, it will be worthwhile to refer to various documents/applications as were submitted by company M/s KSSPL to various authorities at different points of time. From the said documents, it is clearly evident that the claims made by the company M/s KSSPL in its various applications made either to Madhya Pradesh Pollution Control Board or to Trade & Industries Center, Government of Madhya Pradesh or to Excise Department clearly contradicted the claim of the company as have been made in its application Ex. PW 1/F (Colly) (D-10) submitted to MOC regarding its existing production capacity. Even the claim being made now that the actual installed capacity of the company was 0.1 MTPA also stands falsified.
141. PW 8 Dr. P.S. Sharma who was Chief Chemist, Madhya Pradesh Pollution Control Board (MPPCB) was examined by the prosecution in this regard. During the course of investigation he had produced before the IO various applications submitted by A-1 M/s KSSPL for obtaining consent orders u/s 25/26 of Water (Prevention and Control of Pollution) Act, 1974 and u/s 21 of Air (Prevention and Control of Pollution) Act, 1981 beside also producing various consent orders so issued by the Pollution Control Board. All CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 103 of 350 such applications and consent orders in original were seized by IO DSP Sanjay Dubey vide production and receipt memo Ex. PW 8/A (D-49). The documents so seized vide the said memo read as under:
"PRODUCTION & RECEIPT MEMO 1 Case No. & Date : CBI Rc 219 22012 E 0016 CBI EO-I/EO-II, dated 13.10.2012 2 Date & Place of receipt : 05.02.2013 at O/o CBI, EOU-V, EO-II Branch, New Delhi 3 By whom Production and : Shri P.S. Sharma S/o Shri R.S.
handed over Sharma, working as Scientist,
Regional Office, Madhya Pradesh
Pollution Control Board (MPPCB),
Satna, Madhya Pradesh.
4 By whom received : Sanjay Dubey
5 Description of :
documents received on
production
a. Application dated 17.01.2000 submitted by Kamal
Sponge & Steel, Satna for consent u/s 25/26 of the Water (Prevention & Control of Pollution),Act 1974. b. Letter dated 20.01.2000 issued by Regional Office, MPPCB to Kamal Sponge & Steel, Satna.
c. Reply of Kamal Sponge & Steel, Satna dated 21.10.2000 to Regional Officer, MPPCB, Satna. d. Consent of MPPCB dated 10.07.2001 issued u/s 25/26 of the Water (Prevention & Control of Pollution), Act 1974. e. Application dated 17.01.2000 submitted by Kamal Sponge & Steel for consent u/s 21 of the Air (Prevention & Control of Pollution), Act 1981.
f. Consent of MPPCB dated 10.07.2001 issued u/s 21 of the Air (Prevention & Control of Pollution), Act 1981. g. Consent of MPPCB dated 05.04.2004 issued u/s 25/26 of the Water (Prevention & Control of Pollution),Act 1974. h. Consent of MPPCB dated 05.04.2004 issued u/s 21 of the Air (Prevention & Control of Pollution),Act 1981. i. Application dated 01.07.2006 submitted by M/s Kamal Sponge, Steel & Power Ltd., Satna for renewal of consent of Air & Water Pollution.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 104 of 350 j. Renewal of consent of MPPCB dated 04.12.2006 issued u/s 21 of the Air (Prevention & Control of Pollution), Act 1981. k. Renewal of consent of MPPCB dated 04.12.2006 issued u/s 25/26 of the Water (Prevention & Control of Pollution),Act 1974.
l. Application dated 19.03.2007 submitted by M/s Kamal Sponge, Steel & Power Ltd., Satna for renewal of consent of Air and Water Pollution.
m. Renewal of consent of MPPCB dated 07.09.2007 issued u/s 21 of the Air (Prevention & Control of Pollution),Act 1981. n. Renewal of consent of MPPCB dated 07.09.2007 issued u/s 25/26 of the Water (Prevention & Control of Pollution),Act 1974.
o. Form D dated 09.08.2012 as submitted online by M/s Kamal Sponge, Steel & Power Ltd. Satna for renewal of consent u/s 25/26 of the Water (Prevention & Control of Pollution),Act 1974.
p. Form 1 dated 09.08.2012 as submitted online by M/s Kamal Sponge, Steel & Power Ltd. Satna for renewal of consent u/s 21 of the Air (Prevention & Control of Pollution),Act 1981.
q. Renewal of consent of MPPCB dated 20.09.2012 issued u/s 21 of the Air (Prevention & Control of Pollution),Act 1981. r. Renewal of consent of MPPCB dated 20.09.2012 u/s 25/26 of the Water (Prevention & Control of Pollution),Act 1974. (All the above-mentioned documents are in original).
Handed over by Taken Over By
(Shri P.S. Sharma) (SANJAY DUBEY)
Scientist, Regional Office, INSPECTOR OF POLICE
MP Pollution Control Board, Satna, CBI/EOU.V/NEW DELHI
Madhya Pradesh Satna."
142. From a bare perusal of the aforesaid documents it is crystal clear that vide orders dated 20.09.2012, Ex. PW 8/Q (available at pages 139-142 in D-50) and Ex. PW 8/Q-1 (available at pages 143- 144 in D-50) Madhya Pradesh Pollution Control Board in reference to the online application dated 16.08.2012 of company M/s KSSPL, renewed the consent of Pollution Board both u/s 21 Air (Prevention & CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 105 of 350 Control of Pollution) Act, 1981 and u/s 25/26 Water (Prevention & Control of Pollution) Act, 1974 for a total production capacity of 290 tonnes per day sponge iron. The two consent orders were issued for the period 01.09.2012 to 31.08.2013. Similarly it was found that vide letter dated 19.03.07 Ex. PW8/M (colly) the company M/s KSSPL had sought renewal of consent (Air and water) qua sponge iron for existing production capacity of 290 TPD (87000 tonnes per annum). The pollution control board accordingly renewed the consent so issued to company M/s KSSPL vide order dated 07.09.07 Ex. PW 8/N-1 for the period 01.09.2007 to 31.08.2008.
143. At this stage it will be worthwhile to mention that when various documents as above were collected by the IO from Madhya Pradesh Pollution Control Board then PW-8 Dr. P.S Sharma alongwith Dr. R.S. Parihar, the then Regional officer Satna Regional office also prepared a chart on the basis of said documents mentioning therein the production capacity of M/s KSSPL during different time period and the dates when various consent certificates were issued by the department to M/s KSSPL. The said chart bearing signatures of PW 8 Dr. P.S Sharma and that of Dr. R.S. Parihar was submitted to IO vide letter dated 04.02.13 Ex.PW8/B (colly)(D-48). The said chart is thus a ready and convenient reproduction of the relevant facts of various applications submitted by M/s KSSPL to Madhya Pradesh Pollution Control Board at different points of time seeking issuance or renewal of consent orders under Water & Air Acts as above and the consequent orders issued by the Pollution Control Board.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 106 of 350
144. For a ready reference the said chart which is part of Ex. PW 8/B (colly) (D-48) has been reproduced hereunder:
मे सर् सर्र कमल स्पं ज स्टील एण्ड पावर िलिमटे ड सर्गमा सर्तना को जारी सर्म्मित एवं नवीनीकरण उत्पादन क्षमता सर्िहित की जानकारी क. उद्योग द्वारा सर्म्मित एवं नवीनीकरण सर्म्मित/नवीनीकरण अविध उत्पादन क्षमता उद्योग जल/वायु िरमाकर प्राप्त आवेदन जारी िदनांक (जल/वायु) (जल/वायु) द्वारा सर्म्मित/ िदनांक प्रस्तुत नवीनीक आवेदन रण पत्रों पत्रों मे मे फ्लैग फ्लैग नं.
नम्बर 1 17.1.2000 1417 िदनांक 10.7.2001 29.10.2000 सर्े 28.10.2001 27000 टी.पी.ए. ए ए 2 21.10.2000 1415 िदनांक 10.7.2001 29.10.2000 सर्े 28.10.2001 27000 टी.पी.ए. बी-1 बी-1 3 17.7.2001 1404 िदनांक 23.7.2003 29.10.2001 सर्े 28.10.2003 27000 टी.पी.ए. बी-2 बी-2 4 05.3.2002 1405 िदनांक 23.7.2003 29.10.2001 सर्े 28.10.2003 27000 टी.पी.ए. बी बी 5 िनल 214 िदनांक 30.1.2004 29.10.2003 सर्े 28.10.2004 27000 टी.पी.ए. सर्ी सर्ी 6 22.1.2004 5708,5706 िदनांक 01.9.2004 सर्े 31.8.2005 290 टी.पी.डी. डी डी 05.4.2004 7 04.7.2005 17838, 17840 िदनांक 01.9.2005 सर्े 31.8.2006 290 टी.पी.डी. ई ई 21.9.2005 8 01.7.2006 9263,9265 िदनांक 01.9.2006 सर्े 31.8.2007 290 टी.पी.डी. एफ एफ 04.12.2006 9 19.3.2007 7068,7070 िदनांक 01.9.2007 सर्े 31.8.2008 290 टी.पी.डी. जी जी 07.9.2009 10 11.4.2008 5292,5294 िदनांक 01.9.2008 सर्े 31.8.2009 290 टी.पी.डी. एच एच 30.6.2008 11 23.6.2009 10966,10968 िदनांक 01.9.2009 सर्े 31.8.2010 290 टी.पी.डी. आई आई 18.12.2009 12 12.7.2010 9475, 9477 िदनांक 01.9.2010 सर्े 31.8.2011 290 टी.पी.डी. जे जे 08.10.2010 13 17.8.2011 882,884 िदनांक 01.9.2011 सर्े 31.8.2012 290 टी.पी.डी. के के 09.2.2012 14 09.8.2012 7052,7054 िदनांक 01.9.2012 सर्े 31.8.2013 290 टी.पी.डी. एल एल 20.9.2012
-Sd-
क्षेत्रीय अिधकारी, म. प्र. प्रदूषण िनयंत्रण बोडर सर्तना(म.प्र) CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 107 of 350 खतरनाक अिधिनयम अं त गर त जारी प्रािधकार िववरण क. उद्योग द्वारा प्राप्त प्रािधकार जारी िदनांक प्रािधकार अविध िरमाकर आवेदन िदनांक 1 19.9.2006 765 िदनांक 29.3.2007 25.4.2003 सर्े 24.4.2005 फ्लैग (एम) 2 14.5.2010 1704 िदनांक 05.7.2010 25.4.2005 सर्े 24.4.2010 फ्लैग (एन) 3 20.8.2010 2239 िदनांक 20.12.2011 25.4.2010 सर्े 24.4.2015 फ्लैग (ओ)
-Sd-
क्षेत्रीय अिधकारी, म. प्र. प्रदषू ण िनयंत्रण बोडर सर्तना(म.प्र)
145. Thus from the various documents of MPPCB the information whereof has been collated in the chart reproduced above it is clear that from 17.01.2000 till 30.01.04 the production capacity of the company M/s KSSPL was 27000 TPA of sponge iron. Thereafter from 22.01.04 till 31.08.13 the production capacity of the company continued to remain 290 TPD. [The said figure of 290 TPD amounts to 87000 MTPA by multiplying the figure of daily production capacity with a figure of 300 working days in a year i.e 290 X 300 = 87000 MTPA. I shall be however discussing at a later stage as to how the multiplying factor is applied as 300 for calculating production capacity of any industry].
146. Thus from the aforesaid documents itself it is clear that the company M/s KSSPL on its own never claimed its production capacity of sponge iron as more than 87000 Tonne Per Annum. However, prosecution also examined PW 7 A.P Singh who was CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 108 of 350 General Manager District Trade and Industries Center, Satna under Department of Commerce and Industries, Govt. of Madhya Pradesh. He submitted that every industry registered with their department is required to obtain a production certificate from their department. In this regard the company has to apply to their department by way of an application enclosing therewith various no objection certificates/permissions obtained from other departments such as Pollution Control Board, Local Gram Panchayat, Department of Sales Tax etc. He further stated that the applicant company is also required to enclose a list of the plant machinery installed so as to justify the capacity of the industry and the date of commencement of production. He further stated that their department accordingly carries out inspection of the industrial plant and after completion of all necessary formalities the production certificate is issued to the industry concerned. He further stated that in the production certificate the date of commencement of production and the capacity thereof is mentioned. He also stated that the capacity of the industry as mentioned on the production certificate is mentioned on annual basis and the standard criteria adopted by the department to calculate the said capacity on annual basis was to multiply the existing production capacity per day with 300 working days in a year. During the course of investigation this witness also handed over to IO Dy. SP Sanjay Dubey, the original file of their department regarding the production certificates issued to A-1 M/s KSSPL at different points of time. The said file was duly proved on record and was exhibited as Ex. PW7/B (Colly) (D-53). He also proved an application dated 28.08.2003 CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 109 of 350 submitted by A-1 M/s KSSPL to their department seeking issuance of production certificate. Alongwith the said certificate the company had enclosed various documents such as :
"a. Copy of Memorandum and Article of Association b. Copy of Acknowledge from S.I.A.
c. Copy of long term coal linkage from CIL d. Copy of list of plant and machinery purchase for new kiln e. Copy of sanction letter from MPSEB f. Copy of MPST/CST registration certificate g. Copy of Central Excise Registration Certificate h. List of raw material and incidental goods"
147. The witness further stated that pursuant to receipt of said application he himself carried out an inspection of the industrial plant of the company on 09.10.03 and during the course of inspection he found the existing annual production capacity of the plant to be 57000 MTPA. He further stated that the original production capacity of the plant was 27000 MTPA and 30000 MTPA capacity was subsequently added and thus at the time of inspection the production capacity of the plant was 57000 MTPA. He further stated that the original partial production of the plant started on 28.10.2000 and the final target of 27000 MTPA production capacity was achieved on 28.12.2000. The expanded production thereafter started from 19.07.2003. The witness further pointed out that alongwith its application the company M/s KSSPL had also enclosed copy of acknowledgement of submission of I.E.M. (Industrial Entrepreneurship Memorandum) as is required to be submitted by every company with Ministry of Commerce and Industry, Govt. of India. It was submitted that in the said CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 110 of 350 acknowledgement of memorandum which is issued by the Ministry of Commerce and Industry, Govt of India on the basis of Memorandum submitted by the company the existing production capacity of sponge iron was stated as 27000 tonne with proposed capacity as 60000 tonne and total capacity as 87000 tonne.
148. The company alongwith its application seeking issuance of Production Certificate had also annexed two orders both issued by MOC, Govt. of India dated 07.11.2001 and 01.07.2003 regarding grant of coal linkage to the company. Vide order dated 07.11.2001, the company was granted coal linkage for a capacity of 27000 tonne per annum sponge iron. Vide order dated 01.07.2003, the company was granted coal linkage for additional 30000 tonne per annum sponge iron capacity (expanded capacity). PW-7 A.P. Singh further stated that the third kiln installed by the company was having an annual production capacity of 30000 tonnes per annum i.e. @ 100 tonne daily. The company M/s KSSPL was thus issued certificate of commencement of production of sponge iron for a total capacity of 57000 metric tonne per annum on 16.10.2003. The said certificate clearly mentioned the original capacity of the company as on 28.10.2000 to be 27000 MT (Metric Tonne) and as on 19.07.2003, the expanded capacity to be 30000 MT with total capacity being 57000 MT.
149. PW-7 A.P. Singh further stated that subsequently vide application dated 28.03.2005 the company M/s KSSPL applied to their department seeking production certificate qua expanded CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 111 of 350 capacity stating that fourth kiln has also been installed by them and the same has started commercial production w.e.f 15.03.2005. The said application was also enclosed with various documents viz.
"a. Copy of Memorandum and Article of Association b. Copy of Acknowledge from S.I.A.
c. Copy of long term coal linkage from CIL d. Copy of list of plant and machinery purchase for new kiln e. Copy of sanction letter from MPSEB f. Copy of MPST/CST registration certificate g. Copy of Central Excise Registration Certificate h. List of raw material and incidental goods."
150. After the said application was processed in the department then an inspection of the industrial plant of the company was carried out by Sh. R.K. Singh Assistant Manager and who submitted his report dated 05.07.2005 Ex. PW 7/H (D-53). During the course of inspection the original production capacity of the plant qua sponge iron being 57000 MTPA was found to have been expanded by another 30000 MTPA and thus the total existing capacity of the plant was found to be 87000 MTPA. Accordingly a production certificate dated 15.07.2005 Ex. PW 7/J (D-53) was issued to company M/s KSSPL by District Trade and Industries Centre, Govt. of M.P. for a total capacity of 87000 MTPA sponge iron.
151. However in the cross-examination of this witness as was carried out by Ld. Counsel for A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia, he was asked as to on what basis the production capacity of the plant was calculated on the basis of 300 working days. In reply thereto PW-7 A.P. Singh stated that though there were no written CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 112 of 350 guidelines or rules/regulations in this regard but quite a few years back a standard format was received in their department from Directorate of Industries, Govt. of Madhya Pradesh with respect to final/permanent registration of small scale industries. In the said format the production capacity of any plant was asked for on the basis of 25 working days in a month and 8 hours per day per shift. He thus stated that on the basis of said standard format a practice developed over a period of time and which ultimately became an established norm that the production capacity of any industry, be it small, medium or large, established in the state of Madhya Pradesh shall be calculated on the basis of 25 X 12= 300 working days in a year. He further stated that the said practice was in fact adopted by all concerned in the state of Madhya Pradesh and even the Chartered Accountants who used to prepare project reports qua various kinds of industries for submission to Govt. departments also adopted the said norm of 300 working days in a year. The said witness was though put a suggestion by Ld. Defence Counsel that an industry engaged in production of steel runs through out the year for all three shifts per day except for shutting down for yearly maintenance purposes but the witness stated that beside shutting down for yearly maintenance purposes the industry also shuts down depending upon the market conditions. He further stated that subject to all other conditions being suitable the industry engaged in production of steel runs throughout the year on all days.
152. The said witness was however subsequently put a Court question as to whether any industry engaged in production of sponge CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 113 of 350 iron/steel or in production of any other product submits information to the department of industries whenever it shuts down for any period either for maintenance purposes or on account of any market condition or still on any other account be it a holiday etc. The witness however stated that no such information is given to their department by any industry.
153. Thus from the deposition of PW-7 A.P. Singh and that of PW- 8 Dr. P.S. Sharma coupled with various documents placed and proved on record by them it is crystal clear that the company M/s KSSPL had itself never claimed its total production capacity to be more than 87000 MTPA at any point of time. It is also clearly evident that the company M/s KSSPL itself calculated its production capacity on the basis of 300 working days in a year and thus multiplied its per day production capacity of 290 tonne per day with a factor of 300 days i.e. 290 X 300 = 87000 MTPA. Moreover in the cross- examination of none of the two witnesses, the veracity or correctness of the documents proved on record by them was disputed. In these circumstances, an important question which arises for consideration is as to why the claim regarding existing capacity to be one lac tonne per annum was made in the application of A-1 M/s KSSPL as was submitted to MOC under the signatures of A-2 Pawan Kumar Ahluwalia.
154. In fact during the course of trial the effort of A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia has been consistently to show that the existing production capacity of the company was about 1 lakh CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 114 of 350 tonne per annum since the company functioned on more than 300 days in the relevant years. During the course of investigation the accused persons even produced two certificates issued by PW-17 Ashok Kumar Aggarwal, Superintendent (Technical), Central Excise Department, Satna, M.P. showing that the sponge iron plant of the company M/s KSSPL worked for more than 300 days in the year(s) 2005-06 and 2006-07. The said two certificates Ex. PW 17/B (D-70) and Ex. PW 17/C (D-71) read as under:
(Ex. PW 17/B) (D-70) "TO WHOM SOEVER IT MAY CONCERN This is to certify that the Sponge Iron Plant of M/s Kamal Sponge Steel & Power Ltd , Satna, was in operation for 245 days during the period from 1st April, 2006 to 31st December, 2006. This certificate is issued after verification of excise records i.e. R.G.I of the company.
Sd/-
12.04.2013 Superintendent Central Excise, Range II Satna (M.P.)"
(Ex. PW 17/C) (D-71) "TO WHOMSOEVER IT MAY CONCERN This is to certify that, on verification of Production records maintained under Rule 10 of the Central Excise Rules 2002 by the company, it is found that the plant of M/s Kamal Sponge Steel & Power Ltd., Satna (M.P) was in operation for 337 days during the Financial Year 2005-06 and 335 days during the Financial Year 2006-07.
This Certificate is issued on the request made by the Company M/s Kamal Sponge Steel & Power Ltd, Satna (M.P.) Sd/-
22.04.2013 Superintendent Central Excise, Range II Satna (M.P.)"
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 115 of 350
155. On the basis of the aforesaid two certificates, it was submitted by Ld. Defence Counsel that if the total per day capacity of the kilns installed by the company is multiplied by 335 days for the year 2006- 07 and 337 days for the year 2005-06, then the approximate existing production capacity comes to around 1 lakh tonne per annum.
156. Thus if the aforesaid argument of A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia as duly supported by two certificates Ex. PW 17/B and Ex. PW 17/C is believed then certainly not much can be read against the company for having made a claim in the application that the existing production capacity of the company was one lac tonne per annum. In case of 335 and 337 working days in a given year the total production capacity of the company with capacity of 290 TPD would certainly be more than 97000 MTPA.
157. However the situation is actually not so and as shall be clear from my subsequent discussion that the two certificates Ex. PW 17/B and Ex. PW 17/C clearly seems to have been got issued from PW-17 Ashok Kumar Aggarwal with a view to create a false plea of defence for A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia both during the course of investigation and trial.
158. If the two certificates Ex. PW 17/B dated 12.04.2013 and Ex. PW 17/C dated 22.04.2013 are seen in the circumstances under which the same came to be issued then it will be crystal clear that during the course of investigation serious efforts were made by the accused persons so as to cover up their acts of misrepresentation CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 116 of 350 made in their application Ex. PW 1/F (Colly). Even otherwise, I may state that from the documents of Madhya Pradesh State Pollution Control Board and that of Department of Trade and Commerce as stands proved on record, it is clear that company itself also never considered its existing production capacity to be more than 87000 MTPA. [290 tonne per day X 300 days = 87000 MTPA].
The company at all times submitted its application to various departments considering 300 working days in a year.
Circumstances in which certificate Ex. PW 17/B (D-70) dated 12.04.2013 and Certificate Ex. PW 17/C (D-71) dated 22.04.2013 were issued by PW-17 Ashok Kumar Aggarwal.
159. During the course of investigation of the present case, PW-17 Ashok Kumar Aggarwal had produced before the IO, the original "Annual installed capacity statement" of A-1 M/s KSSPL, Satna dated 06.11.2008, 27.04.2012 and 03.05.2012 as were submitted by company M/s KSSPL in ER-7 form with the Excise Department. The said ER-7 forms were collected by IO Insp. Sanjay Dubey vide production and receipt memo Ex. PW 17/A (colly) (D-59). Moreover ER-7 form dated 06.11.2008 was also put to DW-3, Arunendra Prasad by Ld. Sr. P.P. in his cross examination and the same has been proved on record as Ex. DW-3/PX-1. In the said ER-7 form titled "Annual Installed Capacity Statement" the annual production capacity of sponge iron of the company M/s KSSPL was mentioned as 87000 MT. However PW-17 Ashok Kumar Aggarwal stated in his deposition that during the time when investigation of the present case was in CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 117 of 350 progress he had issued two certificates indicating the number of working days during the two financial years i.e. 2005-06 and 2006-07. Upon being shown the two certificates Ex. PW 17/B and Ex. PW 17/C he identified the same having been issued by him. As regard the circumstances in which the said certificates were issued by him he stated that some representative of A-1 M/s KSSPL had approached him stating that some iron ore racks of the company had got stuck in Orissa and the company required the said certificates for the two financial years to get the said iron ore racks released. He thus stated that in the said circumstances he issued the two certificates. He further stated that the representative of the company M/s KSSPL had brought alongwith him, the production cum dispatch register maintained by the company for the said two financial years.
160. However in his cross-examination as conducted by Ld. Counsel for A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia, he stated that there was no requirement for any manufacturer to inform the excise department on daily basis, if there is no production in his plant/industry on any given day. He also stated that while assessing the monthly returns filed by a manufacturer, the particulars mentioned therein are not cross-checked with the register maintained by the manufacturer at its plant site.
161. The aforesaid witness i.e. PW-17 Ashok Kumar Aggarwal was however thereafter extensively examined by the Court under Section 165 Indian Evidence Act, 1872. In response to the questions so put to him by the Court he admitted that in ER-1 form submitted by M/s CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 118 of 350 KSSPL with excise department on monthly basis, the production of the goods carried out in a given month, its quantity, dispatched quantity, value of the goods dispatched, duty payable on the said goods etc. is mentioned by the company. He also admitted that in the registers produced by the representative of A-1 M/s KSSPL on the basis of which the two certificates Ex. PW 17/B and Ex. PW 17/C were issued by him, similar particulars regarding the goods produced or dispatched or duty payable on the said goods was mentioned.
162. He also admitted that the correctness of all such figures as were mentioned in the two registers thus could have been got cross- checked from the ER-1 forms already filed by company M/s KSSPL with the excise department. However upon being asked as to whether he cross-checked the entries in the two registers with the ER-1 forms of the company, the witness stated that as the record related to ER-1 forms was voluminous so comparison thereof would have taken 1-2 days and thus on account of urgency expressed by the representative of A-1 M/s KSSPL that in the absence of the two certificates they are not in a position to procure iron ore, he did not cross-check the entries made in the register with ER-1 forms. He however also admitted that neither in the applications submitted by M/s KSSPL seeking issuance of said two certificates nor in the said two certificates issued by him any such facts relating to release of iron ore racks were mentioned.
163. I have deliberately reproduced a major portion of the deposition of PW-17 Ashok Kumar Aggarwal as from a bare perusal CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 119 of 350 of his deposition and from the circumstances in which the two certificates Ex. PW 17/B and Ex. PW 17/C have been issued by him, it is clear that the same was a feeble attempt on the part of company M/s KSSPL towards creating a false plea of defence. Certainly the conduct of PW-17 Ashok Kumar Aggarwal in issuing the two certificates Ex. PW 17/B and Ex. PW 17/C is also not above board. The explanation furnished by him that the two certificates were issued on the request of a representative of A-1 M/s KSSPL on the ground that some iron ore racks of the company have got stuck in Orissa and the two certificates are required for getting the iron ore racks released is per-se vague and completely unbelievable. Moreover neither any such request was made in the application by the company nor any such ground of issuing the two certificates is mentioned in the said certificates. Thus apart from the conduct of company M/s KSSPL in procuring the two certificates, the conduct of PW-17 Ashok Kumar Aggarwal is also more daring and blatant in as much as he stated in his deposition that though prior to issuing certificate dated 12.04.2013 Ex. PW 17/B, he was not aware that any investigation was being conducted in the present matter by CBI but before issuing the second certificate dated 22.04.2013 i.e. Ex. PW 17/C he was aware that investigation in the present matter was being carried out by CBI. Apparently there could not have been any correlation for getting any iron ore racks of company M/s KSSPL released in the year 2013 with the two certificates certifying the total number of working days for which the company M/s KSSPL worked during the financial years 2005-06 and 2006-07. Moreover in the cross-examination of this CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 120 of 350 witness neither A-1 M/s KSSPL nor A-2 Pawan Kumar Ahluwalia furnished any explanation worth the name as to for what purpose the two certificates were got issued by them from PW-17 Ashok Kumar Aggarwal or what reason was spelled out by them to him for getting the two certificates issued. However in the written submissions filed on behalf of the two accused persons as well as in their statements u/s 313 Cr.PC, it has been stated that the two certificates were obtained from PW-17 Ashok Kumar Aggarwal as IO PW-18 Dy. SP Sanjay Dubey told them to produce evidence of actual number of working days during the said two years. Had it been so then apart from the fact that such a reason ought to have been mentioned in the applications submitted to PW-17 Ashok Kumar Aggarwal for obtaining the said two certificates, the said reason at least ought to have been put to the witness in his cross-examination. It can not be even remotely believed that no reason at all was disclosed either in writing or even orally to PW-17 Ashok Kumar Aggarwal while getting the two certificates issued. The fact however remains that no prudent person can even remotely believe the reason put forth by PW-17 Ashok Kumar Aggarwal for issuing the two certificates except that he tried to help A-1, company M/s KSSPL and A-2 Pawan Kumar Ahluwalia in creating a false plea of defence.
164. It is in the light of aforesaid facts and circumstances that the deposition of DW-3 Arunendra Prasad Tiwari, Assistant Clerk, Marketing Division, Dispatch Section, M/s KSSPL needs to be seen.
165. DW-3 Arunendra Prasad Tiwari deposed that in the dispatch CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 121 of 350 section of the company a register called RG-1 (Daily stock register) is maintained. He accordingly identified three registers Ex. DW 3/A (colly). Ex. DW 3/B (colly) and Ex. DW 3/C (colly) to be three such registers maintained by the company for the year(s) 2005-06, 2006- 07 and 2007-08 respectively. He also stated that the said three registers were maintained by him and he identified his signatures/initials over there. He also deposed that every year audit inspection of the said registers was carried out by the officials of Central Excise Department and at the time of inspection they put an endorsement to that effect on the registers under their signatures. He also stated that the monthly excise returns submitted in Form ER-1 to the Central Excise Department are submitted by the company on the basis of said registers only.
166. However in his cross-examination as conducted by Ld Sr. P.P. Sh. V.K. Sharma, he stated that the daily production figures as are mentioned in the register were used to be given by production department of the company to him and he had no personal knowledge about the actual production undertaken by the company on any given day. He also claimed ignorance about the installed production capacity of sponge iron in the company. He also claimed ignorance as to when the audit inspection qua the entries in the three registers was carried out or as to who were the officers of Excise Department who signed the said registers as the registers were not signed by them in his presence. He also stated that the audit inspection is carried out in the Accounts Department.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 122 of 350
167. In his further cross-examination, the witness was also shown form ER-7 dated 06.11.2008 titled "Annual Installed Capacity Statement" Ex. DW3/PX-1 as was filed by company M/s KSSPL with Excise Department. He though stated that the said form was signed by him but claimed ignorance about the contents of the form. He further stated that he signed the said form at the instance of officers of Accounts Department of the company. In the said ER-7 Form, the annual installed capacity of the company was stated as 87000 MTPA.
168. Moreover for reasons best known to the accused persons the said registers were not at all shown to PW-17 Ashok Kumar Aggarwal in his cross-examination as to whether the two certificates Ex. PW 17/B and Ex. PW 17/C were issued by him on the basis of said registers or not. In fact PW-17 Ashok Kumar Aggarwal denied that the Excise Department is required to carry out regular physical inspection of the plant/industry of any given manufacturer so as to ensure that there is no violation of excise duty payable. He though stated that surprise inspections are carried out by the department but denied that there were any rules/regulations which mandated that inspection of any manufacturer's site is necessarily to be carried out by the department at least once every year.
169. Thus it is crystal clear that neither the deposition of DW-3 Arunendra Prasad Tiwari inspires confidence nor the two certificates Ex. PW 17/B and Ex. PW 17/C issued by PW-17 Ashok Kumar Aggarwal can be given any credence.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 123 of 350
170. Company M/s KSSPL however also examined DW-4 S.K. Pandey, the then Inspector (Audit) Central Excise Department. He deposed that he alongwith his other colleagues from the office of Central Excise Department had carried out excise audit of the company M/s KSSPL. He stated that at the time of inspection they had inspected RG-1 register Ex. DW 3/C (colly) for the year 2007-08 and as a token thereof made an endorsement with their signatures on the first page of the register. He further stated that at the time of audit inspection they also checked the official record maintained by the company beside the said RG-I register. However in his cross- examination as conducted by Ld. Sr. P.P. Sh. V.K. Sharma he stated that putting of signatures on RG-1 register at the time of any such inspection was not part of any rules and regulations or circulars of Excise Department but the same were undertaken as a part of practice being followed by the officers of the Excise Department.
171. DW-4 S.K. Pandey was in fact examined by A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia in order to substantiate their claim of total number of working days in the year 2007-08. However as already mentioned for reasons best known to the accused persons, the said three RG-1 registers were never put to PW-17 Ashok Kumar Aggarwal who had admittedly issued certificates Ex. PW 17/B and Ex. PW 17/C. The said witness only could have stated as to whether the two certificates were issued by him after seeing the said RG-1 registers i.e. Ex. DW 3/A, Ex. DW 3/B and Ex. DW 3/C respectively for the years 2005-06, 2006-07 and 2007-08 or not. Thus in these CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 124 of 350 circumstances the deposition of DW-4 S.K. Pandey looses all its significance in as much as it does not stand proved on record that the two certificates Ex. PW 17/B and Ex. PW 17/C were issued on the basis of the aforesaid three RG-1 registers or not. Moreover, as discussed above at length the two certificates Ex. PW 17/B and Ex. PW 17/C seems to have been issued solely with a view to create a false plea of defence in favour of company A-1, M/s KSSPL and A-2 Pawan Kumar Ahluwalia.
172. At this stage, I am refraining from commenting as to the reasons why the investigating agency chose to buy such a lame excuse or turned a blind eye to the circumstances under which the two certificates were issued since in my initial orders rejecting the closure report filed by CBI, I have already dealt with the said aspect. The fact however remains that the two certificates Ex. PW 17/B and Ex. PW 17/C issued by PW-17 Ashok Kumar Aggarwal are documents created solely with a view to create a false plea of defence in order to justify the false claim of existing production capacity made in the application of A-1 M/s KSSPL as submitted to MOC under the signatures of A-2 Pawan Kumar Ahluwalia.
173. Moreover no explanation at all has been put-forth by either A-1 M/s KSSPL or A-2 Pawan Kumar Ahluwalia as to under what circumstances the annual installed capacity was stated to be 87000 MTPA in various documents/applications submitted to different Government departments during the relevant period of time i.e. both prior to and after submission of application Ex. PW 1/F (colly) (D-10) CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 125 of 350 to MOC. There is also no explanation as to whether at any point of time the said claims made by A-1 M/s KSSPL before different authorities regarding its annual installed capacity as initially being 27000 MTPA and thereafter having been expanded to 57000 MTPA or even to 87000 MTPA was sought to be corrected by the company much less in the year 2013 when the two certificates Ex. PW 17/B and Ex. PW 17/C were got issued from excise department.
174. Thus from the aforesaid discussion, it is crystal clear that A-1 M/s KSSPL deliberately chose to mention inflated figures of existing production capacity of its end use project in application Ex. PW 1/F (colly) (D-10) submitted to MOC under the signatures of A-2 Pawan Kumar Ahluwalia.
175. It thus stands proved beyond shadows of all reasonable doubts that the company M/s KSSPL with-held the Audited Annual Accounts/Reports for the year 2005-06 and 2004-05 despite the same being available with it at the time of filing of application before MOC. It also stands proved beyond shadows of all reasonable doubts that the company not only made highly inflated claims about its financial strength i.e. net-worth and also grossly misrepresented about its existing production capacity. At this stage I may also mention that company M/s KSSPL had in fact even furnished highly inflated claims of its future production capacity also even though it had no intention to do so or to achieve such targets in future.
176. The failure of the company in achieving post-allocation CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 126 of 350 milestones clearly suggests so. Though at this stage I may mention that Ld. Counsel for A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia has tried to present the post allocation activities undertaken by the company emphasizing that company M/s KSSPL was sincere in mining the coal block allotted to it and to expand the capacity of its sponge iron plant. However the fact remains that even in the year 2012-13, the production capacity of the company remained only 87000 MTPA. Thus it is clear that the company M/s KSSPL even grossly failed in achieving other targets of production of sponge iron also as were claimed either in the main application or in the project report annexed thereto i.e. achieving 0.3 MTPA till the end of 2007 or adding 2 lac tonne capacity of sponge iron production in the third phase or adding another capacity of one lac tonne sponge iron in the fourth phase by the year 2010 and thereby achieving the ultimate total capacity of 0.6 MTPA (6 lac tonne per annum) by the year 2010.
(D) Whether A-1 M/s KSSPL dishonestly withheld the requisite documents from MOC and it also dishonestly made misrepresentations in its application.
177. After having concluded that there were clear misrepresentations and false claims made in the application form submitted on behalf of A-1 M/s KSSPL, the next issue to be considered is whether the said misrepresentations or false claims were made dishonestly. In this regard it needs to be examined as to why company M/s KSSPL chose to with-held any documents or misrepresented about its net-worth or about its existing production capacity or future projected capacity of the end use project. Certainly CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 127 of 350 the reasons thereof can not be proved by prosecution by way of any direct evidence, for the same can be exclusively to the knowledge of accused persons only. However the intention thereof has to be gathered from the attending circumstances only and that too from only such circumstances which stands well proved on record. It is well settled that guilty intention in committing any given act is always in the mind of the offender and prosecution can not be expected to lead any direct evidence qua it. However the only effort which prosecution can make in this regard is to prove on record various circumstances from which it may be legally and logically inferred that company M/s KSSPL had deliberately with-held documents from MOC despite the same being available with it and also that it dishonestly misrepresented about its net-worth and existing production capacity. Thus the object to be achieved by the company and the means adopted by it in achieving the said object becomes important.
178. As discussed above the prosecution has clearly been successful in proving on record that the Audited Annual Accounts/Reports of the company M/s KSSPL for the year 2004-05 and 2005-06 were very much available with the company as on 09.01.2007 i.e. when the application Ex. PW 1/F (colly) (D-10) was submitted by it to MOC the same were not filed in MOC alongwith the application. Except for stating that it was an inadvertent mistake on the part of staff of the company no other explanation worth the name has been put forward either by A-1 M/s KSSPL or by A-2 Pawan CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 128 of 350 Kumar Ahluwalia. However the said explanation has also been shown as a feeble plea of defence raised by the accused and which is highly unbelievable. My subsequent discussion will in fact further show that the aforesaid acts of non-filing of requisite documents and making highly inflated claims regarding net-worth and existing or proposed sponge iron capacity were conscious acts of the accused persons and can in no way be termed as inadvertent acts.
179. However before proceeding further I may state that in drawing the aforesaid conclusion neither I have presumed the existence of any fact till now nor I intend to proceed further on the basis of presumptions. Effort is being made to draw all such conclusions on the basis of only such facts and circumstances as stands proved on record by legally admissible evidence. I am also not at all suggesting that the burden was upon the accused persons to prove their innocence.
180. The aforesaid note of caution is being made consciously as all through the trial and final arguments it was being repeatedly argued on behalf of the accused persons that Court may not draw any conclusions merely on the basis of presumptions even though no legally sustainable and admissible evidence is led by the prosecution to discharge its burden of proving the guilt of accused persons beyond shadows of all reasonable doubts.
181. Thus in these circumstances before adverting further as to what could be the reason of such misrepresentation or withholding of CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 129 of 350 documents, it would be worthwhile to have a glance over the definition of the word "dishonestly" as given in Section 24 IPC.
Section 24 IPC defines the word "dishonestly" as under:
"24. "Dishonestly". - Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing "dishonestly"."
However, in order to arrive at a finding in this regard it will be important to first see as to what could have been the purpose of making such a false representation or with-holding of documents by the accused persons. Admittedly MOC while inviting applications by way of an advertisement had also advertised the guidelines vide which inter-se priority for allocation of a block among competing applicants for a captive block may be decided by the Screening Committee. The said guidelines relating to inter-se priority read as under:
"9. Inter-se priority for allocation of a block among competing applicants for a captive block may be decided as per the following guidelines:
• Status (stage) level of progress and state of
preparedness of the projects;
• Net-worth of the applicant company (or in the case of
a new SP/JV, the net-worth of their principals); • Production capacity as proposed in the application ; • Maximum recoverable reserve as proposed in the application;
• Date of commissioning of captive mine as proposed in the application;
• Date of completion of detailed exploration (in respect of unexplored blocks only) as proposed in the application; • Technical experience (in terms of existing capacities in coal/lignite mining and specified end use);
• Recommendation of the Administrative Ministry CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 130 of 350 concerned;
• Recommendation of the State Government concerned (i.e. where the captive block is located);
• Track record and financial strength of the company. Preference will be accorded to the power and the steel sectors. Within the power sector also, priority shall be accorded to projects with more than 500 MW capacity. Similarly, in steel sector, priority shall be given to steel plants with more than 1 million tonne per annum capacity."
(Emphasis supplied by me)
182. The very first guideline shows that the status (stage), level of progress and state of preparedness of the projects will be one of the factors to be considered by the Screening Committee. The guidelines also says that the track record and financial strength of the company shall also be a relevant consideration beside the production capacity as proposed in the application.
183. Moreover as per the implementation schedule of the end use project and development of coal mine as was enclosed with the application Ex. PW 1/F (colly) (D-10) the development of both was to be undertaken simultaneously. Certainly all such activities would have required huge investment and thus the net-worth of the applicant companies or the track record or financial strength of the companies gains material importance. Accordingly various factors as were chalked out by MOC to govern the allocation of coal blocks to different applicant companies were thus closely related to each other. Moreover the basic factors i.e. the net worth of the applicant company or the track record or financial strength of the company clearly had a direct co-relation with the status (stage), level of progress and state of preparedness of the projects.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 131 of 350
184. The aforesaid circumstances thus clearly explains as to what prompted the accused persons to present highly inflated claims with respect to their status (stage), level of progress and state of preparedness of the projects both as regard the existing or the proposed production capacity or to withhold the Audited Annual Accounts/Reports for the year 2005-06 and 2004-05. If at all the claim of net-worth as on 31.03.06 was to be cross-checked then the same would have been possible only if the Audited Annual Accounts/Reports for the year 2005-06 would have been filed by the company M/s KSSPL alongwith its application.
185. Thus from the aforesaid circumstances it is clear that the sole intention of both A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia was to present A-1 M/s KSPPL as better placed/prepared in terms of status (stage) level of progress and state of preparedness of the projects by showing higher production capacity, both existing as well as proposed. The track record and financial strength of the company was also presented as sound and capable enough to undertake future expansion of the end use project or in mining of the coal block which may be allotted. A picture was also sought to be painted about the future expansion plan of the company and its techno-economic capability to do so and thereby present itself as a major bonafide player in the field of production of sponge iron. The end result of all the aforesaid activities so undertaken by A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia was clearly to cause wrongful gain to themselves by procuring allocation of a coal block in favour of CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 132 of 350 A-1 M/s KSSPL.
186. Thus from my aforesaid discussion it stands proved beyond shadows of all reasonable doubts that A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia with-held the Audited Annual Accounts/Reports for the year 2005-06 and 2004-05 from MOC dishonestly. It also stands proved beyond shadows of all reasonable doubts that highly inflated claims regarding its net-worth and the existing and proposed sponge iron production capacity of sponge iron of A-1 M/s KSSPL were made in the application dishonestly with a view to cause wrongful gain to A-1 M/s KSSPL.
187. At this stage, I would also like to deal briefly with one other submission of Ld. Counsel Sh. Pavan Narang for A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia that had there been any malafide intention in inflating the existing or future proposed production capacity targets then in accordance with the priority criteria benchmark fixed by MOC that in steel sector companies having production capacity to the tune of 1 MTPA (One Million Tonne Per Annum) shall be given preference, the company would have mentioned at least its proposed production capacity as 1 MTPA.
188. Though on the face of it the argument appears to be attractive but on a deeper thought the fallacy in the argument becomes evident. Certainly there was no restriction if any company chose to mention its proposed ultimate production capacity as 1 MTPA if not the existing capacity itself. However in such an eventuality the figures of financial CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 133 of 350 strength would have been required to be equally inflated. The proposed total investment required would have grown manifold. Similarly the requirement of land and other factors would have grown exponentially high. The requirement of seeking various clearances from different Government departments would have also arisen. There would have been also a requirement of putting in a new project report to show such a proposed plant and keeping in view the resources available with the company such as land, finance etc. the preparation of any such report could not have been possible. There could have been another important issue of non-matching of the coal reserves as available in the impugned coal block with the requirement of the company if it was to produce 1 MTPA of sponge iron.
189. However at this stage, I may mention that all the aforesaid reasons as mentioned above may appear to be presumptive in nature but the same have been so coined only because Ld. Counsel for accused persons themselves are calling upon this Court to venture into such an exercise to analyse as to why company M/s KSSPL did not mention its proposed ultimate capacity as 1 MTPA. Certainly the reasons thereof must be to the knowledge of accused persons only but it can be said with certainty that mere non-mentioning of its proposed ultimate production capacity of sponge iron as 1 MTPA does not have any effect of any nature whatsoever on the conclusions arrived at by this Court in the earlier part of present judgment. Moreover the issue being considered over here is whether A-1 M/s KSSPL made highly inflated claims in its application CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 134 of 350 dishonestly or not.
(E) Whether both Ministry of Steel and State Government of Madhya Pradesh relied upon the aforesaid highly inflated claims made by the company M/s KSSPL in its application believing them to be true, while submitting their comments/views/recommendation to MOC.
190. The next question which is required to be considered is whether the claims made by company M/s KSSPL as regard its financial strength i.e. net-worth or as regard its existing or proposed production capacity of its end use project were considered by State Govt of Madhya Pradesh and by Ministry of Steel in making its recommendation or submitting its comments/views to MOC. Subsequently it will be also required to be seen as to whether the screening committee and thereby MOC, Govt of India considered the said information as given in the application form in arriving at its final decision.
(i) State Government of Madhya Pradesh
191. PW 9 Sewa Ram, the then Secretary Mines, Government of Madhya Pradesh had attended two meetings of 36 th Screening committee meetings as were held on 07.02.2008 and 08.02.2008. In his deposition he stated that when various applications were received by Government of Madhya Pradesh from MOC for submitting its comments/views/recommendations then an empowered committee headed by Chief Secretary of the State with Secretary Industry, Secretary Mines, Secretary Energy and Secretary Finance as CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 135 of 350 members was constituted. He further stated that on the basis of recommendation of the said empowered committee the Chief Minister of the State made recommendations to MOC for various coal blocks in favour of different applicant companies. Accordingly the recommendations as were made by Government of Madhya Pradesh were duly communicated by him to Sh. H.C. Gupta during the course of meeting held on 07.02.08 itself. He thus stated that qua Thesgora- B/ Rudrapuri Coal block, Government of Madhya Pradesh had recommended the name of M/s BLA Power Ltd. In his cross examination this witness stated that the empowered committee duly chalked out the criteria on the basis of which recommendations were to be made and the said criteria was duly reproduced in the file by Sh. S.K. Mandal, Addl. Secretary Mines. He further stated that based on the said criteria a sub committee comprising of Additional Secretary, Sh. S.K. Mandal alongwith Director Mines and General Manager, State Mining Corporation, examined all the applications and accordingly assigned points for different factors to all the applicant companies. As regard Thesgora-B/Rudrapuri Coal Block 85 points were thus assigned to M/s BLA Power Ltd., whereas 84 points were assigned to M/s Rewati Cement Pvt. Ltd. and 82 points were assigned to A-1 M/s KSSPL. In his cross-examination as conducted on behalf of A-6 K.C Samria this witness however stated it to be correct that while considering the financial status of the applicant companies their net-worth was also considered. He further volunteered that the information as was available in the application form was considered. In his further cross-examination as carried out CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 136 of 350 by Ld. Counsel for A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia he stated that the sub committee comprising of Mr. S.K. Mandal had gone through all the applications and had thereafter prepared detailed charts on the basis of information mentioned in the applications. He also stated it to be correct that in the said charts the turnover of the applicant companies for the financial year 2003-04, 2004-05 and 2005-06 was mentioned beside the proposed investments to be made by the companies. He also stated it to be correct that in the said charts prepared by the sub committee the net- worth of the applicant companies as on 31.03.06 was mentioned and that of A-1 M/s KSSPL was mentioned as 64.75 crores. [ The said figure was undisputedly picked up from the application of A-1 M/s KSSPL Ex.PW1/F (Colly)(D-10)].
192. It was also pointed out to the witness in his cross-examination that in the note dated 02.11.2007 of Sh. S.K. Mandal points were assigned to various applicant companies on the basis of their financial position. The relevant portion of the note dated 02.11.07 [available at note sheet page 23-25 in note sheet pages Ex. PW 9/B (colly) in file Ex. PW 9/A (colly) (D-46)] which read as follows was also pointed out to the witness:
"3. Company ki Vittiya Stithi 1. 100 crore tak 05 2. 101 se 500 crore tak 15
3. 500 crore se adhik 20"
193. It was also put to the witness by Ld. Counsel for A-1 M/s CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 137 of 350 KSSPL and A-2 Pawan Kumar Ahluwalia that in order to assess the "Vittiya Stithi" of a company it was not only the net-worth of the company which was considered but many other factors were also relevant in this regard such as any tie-up for loan, if made by the company or any other financial arrangements or resources made available by the company. It was further put to the witness that in the note dated 06.02.2008 recorded by him on pages 30-35 in note sheet pages Ex.PW9/B (colly) in file Ex.PW9/A (colly) (D-46) it was stated that the "Vittiya Stithi" was assessed on the basis of turnover of the applicant companies for the year 2005-06.
194. Ld. Counsel Sh. Pavan Narang has however submitted that the purpose of referring to different slabs of "Vittiya Stithi" of a company as was done by the sub-committee was only in order to show that irrespective of the wrong figures of financial strength i.e. net-worth mentioned in the application the points as were assigned to M/s KSSPL would have remained the same even if actual figures would have been mentioned in the application.
195. I may however state that the issue being considered over here at this stage is whether the figures related to financial strength of the applicant company as mentioned in the application were considered by Govt of MP in making its recommendation to MOC or not. (I shall be separately dealing with the issue of grant of points under different slabs at a slightly later stage in the light of fact as to whether the application of M/s KSSPL being incomplete and liable to be rejected at the initial stage itself, was to be at all even received by CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 138 of 350 State Government of Madhya Pradesh much less considered]. However from the deposition of PW 9 Sewa Ram coupled with the notes as prepared by the sub committee and by the empowered committee in file Ex.PW9/A (Colly) (D-46) it is crystal clear that the figure of net-worth was a relevant factor duly considered by Government of Madhya Pradesh in making its recommendation to MOC. Thus it again stands cogently established that withholding of Audited Annual Accounts/Reports for the year 2005-06 and 2004-05 beside mentioning highly inflated figures of net-worth or existing or proposed production capacity are not only acts of dishonest concealment of facts but also that of dishonest misrepresentation of facts solely with a view to obtain wrongful gain to A-1 M/s KSSPL.
196. Moreover if the argument of Ld. Counsel Sh. Pavan Narang that if actual figures of net-worth would have been mentioned in the application form then also points assigned to M/s KSSPL would not have been different is considered then the same will primarily amount to overlooking the fact that the application of M/s KSSPL was in fact per-se liable to be rejected being incomplete in terms of guidelines issued by MOC governing allocation of coal blocks. In these circumstances, the question of assigning any points qua any factor whatsoever would not have arisen at all.
197. Thus from the aforesaid discussion it stands clearly proved that the figures of financial strength i.e. net-worth of the company were not only relevant but were also duly considered by State Government of Madhya Pradesh in sending its CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 139 of 350 recommendations to MOC.
(ii) Ministry of Steel.
198. Ministry of steel had admittedly placed various applicant companies under different categories on the basis of its own internal guidelines. In order to appreciate the issue as to whether Ministry of steel considered the figures of financial strength as mentioned in the applications by the applicant companies or the existing and proposed production capacity of the end use project, it will be worthwhile to first reproduce the guidelines so framed by Ministry of Steel.
"Guidelines to be followed for the consideration of allotment of Coal Block [available at page 288-290 in file Ex. PW 13/J-2 (Colly) (D-4A) • 0.3mT (million metric Ton) or more capacity of production of sponge iron either existing or proposed up to December, 2010. • 0.5mT (million metric Ton) or more capacity of production of pig iron either existing or proposed up to December, 2010. • Background of the company-whether associated with steel, sponge, iron, pig iron or mining activity. • Financial status of the company and the extent of financial tie up.
• Coal washery should be envisaged in the project. • Capacity of the company to quickly undertake development of coal mines based on experiance or any credible effective steps.
2. While the above criteria will determine eligibility, following priorities may be considered for allocation of coal blocks up to 50% satisfaction level which are mentioned below:-
Category I: Companies having existing eligible capacity (0.3 mT or 0.5 mT as the case may be)
(a) No coal linkage, no captive coal block.
(b) Partial coal linkage, no captive coal block.(c) With coal linkage, no captive coal block.
Category II: Companies having existing capacity less than eligible capacity (0.3 mT or 0.5 mT as the case may be) but CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 140 of 350 their proposed expansion capacity which is likely to be commissioned by Dec, 2010 will enable them to have eligible capacity.
(a) No coal linkage, no captive coal block.
(b) Partial coal linkage, no captive coal block.
(c) With coal linkage, no captive coal block.
Category III: Any group of companies or consortium whose individual existing capacities are ineligible, make a viable joint venture and which joint venture enables it to have eligible capacity and the application is submitted in the name of joint venture.
(a) No coal linkage, no captive coal block.
(b) Partial coal linkage, no captive coal block.
(c) With coal linkage, no captive coal block.
Category IV: Companies having existing eligible capacity (0.3 mT or 0.5 mT as the case may be)
(a) No coal linkage, captive coal block with less than 50% satisfaction level.
(b) Partial coal linkage, captive coal block with less than 50% satisfaction level.
Category V: Companies having existing capacity less than eligible capacity (0.3 mT or 0.5 mT as the case may be) but their proposed expansion capacity which is likely to be commissioned by Dec, 2010 will enable them to have eligible capacity.
(a) No coal linkage, captive coal block with less than 50% satisfaction level.
(b) Partial coal linkage, captive coal block with less than 50% satisfaction level.
Category VI: Companies having no existing capacity, but proposes eligible capacity to be commissioned by December, 2010.
Category VII: Any group of companies or consortium which forms a Joint Venture and such Joint Venture has Ineligible existing capacity but proposed expansion capacity of the Joint Venture enables it to have eligible capacity and the application is submitted in the name of Joint Venture."
(Emphasis supplied by me)
199. Thus from a bare perusal of the aforesaid guidelines it is clear that before putting various applicant companies under different CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 141 of 350 categories the eligibility criteria so devised by Ministry of Steel clearly stated that Financial status of the company and the extent of financial tie-up shall be a relevant criteria of eligibility of applicant companies before they are put under one or the other category so devised by Ministry of Steel. The existing and proposed production capacity of the end use plant was also an important criteria adopted by Ministry of Steel in carving out various categories in which the applicant companies were categorised.
200. PW 16 N.R. Dash, Director, Ministry of Steel was the Incharge ID-Wing where the applications received in Ministry of Steel from MOC were examined. In his deposition he stated that while placing various applicant companies under different categories the information so required was picked up from the applications of the companies only.
201. In his cross examination as conducted by Ld. Counsel for A-6 K.C. Samria he admitted it to be correct that in the guidelines framed by Ministry of Steel for its internal use the financial status of the company and the extent of financial tie-up were relevant factors. He also stated that capacity of the end use project of the company was an important criteria followed by Ministry of Steel. In his cross- examination as conducted by Ld. Counsel for A-1 company M/s KSSPL and A-2 Pawan Kumar Ahluwalia he admitted it to be correct that as per the criteria adopted by Ministry of Steel for sponge iron the applicant company was to achieve 0.3 MT capacity by December 2010, if not already having the same as existing capacity. In fact in CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 142 of 350 the office memorandum dated 06.12.07, EX. PW13/J-1 in file Ex. PW13/C (colly) (D-5A) vide which the status of various applicant companies qua different categories as devised by Ministry of Steel was communicated to MOC it was specifically stated by Ministry of Steel in para 6 as under:
"6.0 The Screening Committee may like to discuss and consider on the following parameters:-
(i) Progress made in respect of the steel capacity projects for which the application for coal block has been submitted.
(ii) Potential and credibility of the applicants in setting
up capacity addition in steel sector.
(iii) Efforts made towards development of natural resources
allocated earlier."
(Emphasis supplied by me)
202. Thus from the aforesaid observations made by Ministry of Steel also it is clear that it was very much concerned with the potential and credibility of the applicants in setting up capacity addition in steel sector. The progress made qua the end use project or efforts made towards development of natural resources earlier allocated were also stated to be relevant factors which the screening committee may like to consider so as to facilitate the projected growth of domestic steel capacity. In fact a perusal of minutes Ex. PW 13/L (colly) of 36th Screening Committee also shows that during the meeting held on 03.07.2008, Joint Secretary, Ministry of Steel stated that blocks be allocated to those companies which are genuine, technically and financially sound to take up the project and where capacity addition is expected to be accomplished by the year 2010.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 143 of 350
203. Thus from the aforesaid circumstances it is crystal clear that both financial status of the applicant companies as well as the existing and projected capacity of the end use project were relevant factors even to Ministry of Steel while making its recommendations qua various applicant companies to MOC.
204. It is in the light of aforesaid circumstances that the other contentions of Ld. Counsel for A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia are required to be seen especially as regard the category in which A-1 M/s KSSPL was placed by Ministry of Steel or as to under what circumstances no presentation was stated to have been made before the screening committee or no feedback form was submitted on behalf of A-1 M/s KSSPL.
205. In the cross-examination of PW 16 N.R. Dash it was suggested by Ld. Counsel A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia that since A-1 M/s KSSPL was already having coal linkage so its category under the guidelines issued by Ministry of Steel ought to have been II (b) and not II (a). However as already discussed while referring to the guidelines issued by MOC governing allocation of coal blocks the application of A-1 M/s KSSPL ought to have been rejected at the thresh-hold itself by MOC and thus the very question of sending the application of A-1 M/s KSSPL to Ministry of Steel for its recommendation/comments would not have arisen. The question of placing the company either under category II (a) or II (b) or under any other category would not have arisen at all. Moreover if the subsequent conduct of the company after allocation of impugned coal CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 144 of 350 block is seen then it is found that even till the year 2012 the existing production capacity of the company continued to remain 87000 tonnes per day [290 TPD]. The claim made by it in its application and also in the project report annexed with the application regarding its proposed capacity was also thus never achieved. As earlier also pointed out that in the project report forming part of application Ex. PW 1/F (colly) (D-10) it was stated that at present the company is having existing production capacity of one lac tonne per annum and that in the year 2007 another capacity of 2 lac tonne per annum shall be added or that in the 3 rd phase yet another sponge iron production capacity of 2 lac tonne will be added with yet another one lac tonne production capacity in the year 2010. Thus as per the guidelines adopted by Ministry of Steel the company M/s KSSPL failed to achieve any of its projected targets. In fact this failure of A-1 M/s KSSPL in not able to achieve its projected targets also seems to explain the reason as to why A-2 Pawan Kumar Ahluwalia chose not to appear before the Screening Committee for making presentation or for submitting feedback form also titled "Latest Status of End Use Project".
(F) Whether any presentation was made before the Screening Committee on behalf of A-1 M/s KSSPL and whether any feedback form was submitted.
206. As is the admitted and undisputed case that all the applications in response to advertisement issued by MOC in November 2006 were received latest by 12.01.2007 only and the 36 th Screening Committee met for the first time on 07.12.2007. Thus on CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 145 of 350 account of such a long gap in considering the applications it was decided that all the applicant companies shall be called upon to make a presentation qua the proposed end use project and shall also submit a feedback form titled as under:
"Form for feedback"
(Latest status of end use project)
207. The purpose as is reflected from the title itself was to give the applicant companies a chance to update their information as was submitted earlier in their applications. At the same time, it would have served as a guiding factor to the Screening Committee also in making its recommendations in a more objective manner by having with it the latest status/stage of progress made by the applicant companies towards establishing their end use project.
208. The blank format of the said form for feedback was uploaded on the website of MOC and the applicant companies were to download it and after filling it were to submit the same to the Screening committee alongwith 25 copies thereof to be supplied to all the members of screening committee at the time of making presentation. A schedule for all the applicant companies as per which they were to appear before the screening committee to make presentation and submit feedback form was also uploaded on the website of MOC. As per the said schedule M/s KSSPL was to make a presentation before the screening committee in its meeting held on 08.12.2007. Thus as on 08.12.2007 beside making presentation about its end use project the company was also supposed to submit CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 146 of 350 the filled up feedback form mentioning therein the "Latest Status of End Use Project".
209. Thus if the progress which was proposed to be made by the company towards achieving its projected targets till the year 2007 as were mentioned in the project report forming part of its application are seen then as on 08.12.2007 the company would have been required to explain as to in what manner the projected target of 3 lac tonne per annum is going to be achieved in another 23 days time i.e. till 31.12.2007. The progress made by the company towards achieving the said target and thereafter other targets of achieving 0.6 MTPA by December 2010 would have been required to be explained. However as earlier also discussed that A-1 M/s KSSPL could not exceed its production capacity target beyond 87000 MTPA even in the year 2012 so it is clear that the company could not have achieved its target of 0.3 MTPA in 2007 much less to add another 0.2 MTPA capacity in third phase and thereafter to reach the final ultimate capacity of 0.6 MTPA by December 2010.
210. It is in these circumstances the observations of Ministry of Steel as were made in its office memorandum dated 06.12.2007 Ex. PW 13/J-1 (D-5A) would have become immediately relevant. As earlier also mentioned Ministry of Steel had stated in the said office memorandum that the Screening Committee may like to discuss and consider the progress made in respect of the steel capacity projects for which the application for coal block has been submitted. The said observations/pointers would have immediately stood attracted being CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 147 of 350 relevant to the issue. There is also nothing on record to show that company M/s KSSPL had made any efforts to at least meet the eligibility criteria of Ministry of Steel i.e. to achieve production capacity of 0.3 MTPA of sponge iron by December 2010 much less its own projected capacity of 0.6 MTPA by December 2010. The observations made by Joint Secretary, Steel during the Screening Committee meeting held on 03.07.2008 that those companies may be discouraged who are not expected to set up the projected capacities based on their track record also shows as to how much importance was being attached to the latest status/stage of progress made towards establishing the end use project.
211. Moreover, the issue as to whether a presentation was made before the screening committee on behalf of A-1 M/s KSSPL as claimed by prosecution needs to be seen from two different stand points.
During the course of investigation A-2 Pawan Kumar Ahluwalia submitted a reply Ex. PW 3/R (colly) dated 07.01.2013 to a notice u/s 91 Cr.PC stating that only a power point presentation was made on behalf of the company before the screening committee but neither any hard copy of presentation nor any feedback form was submitted. He however further stated that the said power point presentation was also not traceable with the company due to lapse of time. At the same time during the course of investigation copy of no such presentation if made by A-1 M/s KSSPL or feedback form, if submitted by the company could be made available to the CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 148 of 350 investigating agency even by MOC (In fact during the course of investigation of various coal block allocation matters number of record of MOC was found to be missing. CBI in fact also registered a Preliminary Enquiry in this regard also). Thus in these circumstances, it was stated by Ld. Senior P.P. Sh. V.K. Sharma that the investigating agency was left with no other option but to rely on the said reply of A- 2 Pawan Kumar Ahluwalia only to prove that a power point presentation was indeed made on behalf of A-1 M/s KSSPL by A-3 Amit Goyal. However not only A-3 Amit Goyal on the other hand denied having made any such presentation before the Screening Committee but it has also been argued that any reply submitted by A-2 Pawan Kumar Ahluwalia in response to a notice u/s 91 Cr.PC issued by the IO during the course of investigation was inadmissible in evidence being hit by section 162 Cr.PC as the said reply is in the nature of a statement u/s 161 Cr.PC only. It was also submitted that even otherwise the said reply being in the nature of a statement of an accused without recovery of any fact or thing in pursuance thereto can not be read against another co-accused.
212. In this regard I may state that Ld. Counsel for accused persons are certainly right that such a reply if given by a witness or suspect during the course of investigation in response to a notice u/s 91 Cr.PC is certainly inadmissible in evidence being hit by section 162 Cr.PC. Such a reply if received by investigating officer can at the most serve as a guide or indicator to the investigating officer as to whether the investigation being carried on by him is proceeding in the right direction or not and also what other aspects of investigation are CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 149 of 350 left out or are required to be looked into by him. Certainly on the basis of such a reply if the investigating officer is able to collect some other piece of legally admissible evidence then the said reply can certainly be referred to as indicative of the circumstances in which the investigating officer proceeded to investigate various aspects of any such given case or to collect any piece of evidence.
213. Coming back to the case in hand I may state that as neither the presentation nor the feedback form if any submitted by company M/s KSSPL was available in the records of MOC nor could be found in possession of accused persons during the course of search operation carried out by CBI and the accused persons have now turned around stating that no such presentation was made before the screening committee so this court certainly cannot rely upon any admission made in this regard by A-2 Pawan Kumar Ahluwalia in his reply to notice u/s 91 Cr.PC issued by IO during the course of investigation.
214. However in this regard it will be worthwhile to note the answers given by A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia to question no. 204 in their statements u/s 313 Cr.PC relating to presentation made by A-1 M/s KSSPL before the Screening Committee.
Question no. 204 and the answers of the two accused persons read as under:
"Q. 204 It is further in evidence against you that in reply dated 07.01.2013, part of Ex. PW-3/R (colly) submitted by accused company M/s KSSPL under the signatures of accused Pawan Kumar Ahluwalia as Director/authorised signatory of M/s KSSPL it was stated in para 5 & 6 that ".....A power point CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 150 of 350 presentation from the computer was made to the Screening Committee. However the same is not traceable with the Company due to lapse of time" and "the Chartered Accountant of the Company Sh. Amit Goyal went to attend the Screening Committee meeting on 08.12.2008 as replacement of accused Pawan Kumar Ahluwalia who due to some personal commitment could not go". What have you to say? A-1 M/s KSSPL Ans. It is matter of record.
A-2 Pawan Kumar Ahluwalia Ans. This information was provided to the IO based on the inputs provided by the officers of M/s KSSPL, when I had asked them about the said details. This was done as I had personally not attended the Screening Committee meetings."
215. Thus from the aforesaid nature of answers given in response to question no. 204 so put to A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia in their statements u/s 313 Cr.PC it is clear that the factum of submission of reply Ex. PW3/R (colly) (D-63) by A-1 M/s KSSPL under the signatures of A-2 Pawan Kumar Ahluwalia has not been denied. However the same is now being assailed during the course of final arguments by Ld. Counsel Sh. Pavan Narang on the ground that the said reply is inadmissible in evidence being hit by section 162 Cr.PC. As already mentioned the said position of law is not being disputed even though in the statement u/s 313 Cr.PC there is an admission of such a reply having been submitted by A-2 Pawan Kumar Ahluwalia in response to notice u/s 91 Cr.PC Ex.PW18/O (D-
62) served upon him during the course of investigation.
216. However as shall be evident from my subsequent discussion of the prosecution evidence and the evidence led by the accused persons in their defence that the accused persons are consistently CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 151 of 350 changing their stand in this regard during the course of trial. It was in this context that the answers given by the accused persons in their statement u/s 313 Cr.PC were highlighted as above.
217. PW 13 V.S. Rana Under Secretary, MOC stated in his examination-in-chief that when the applicant companies were called upon to attend the screening committee meeting to make presentation in accordance with the schedule uploaded on the website of MOC then they were also required to submit a filled in feedback form after downloading the proforma thereof from the website of MOC. He further stated that the applicant companies were at liberty to make presentations either by way of hard copy or by way of soft copy or both. He thereafter went on to prove the attendance sheet Ex. PW13/K-1 as available in file Ex. PW 13/B (Colly) (D-4A) of the meeting held on 08.12.2007. He also stated that all the representatives of applicant companies who had come to make presentations signed on attendance sheets. However in his cross- examination as conducted by Ld. Counsel for A-1 M/s KSSPL and A- 2 Pawan Kumar Ahluwalia neither any question nor any suggestion was put that no presentation on behalf of A-1 M/s KSSPL was made. On the other hand in his cross examination as conducted by Ld. Counsel for A-3 Amit Goyal it was however highlighted that the witness has made improvement over his statement u/s 161 Cr.PC made to the IO as regard downloading of feedback form from the website of MOC or the requirement of submitting 25 copies thereof to the screening committee by the applicant companies. He was also CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 152 of 350 extensively cross examined as to the sequence in which representatives of various applicant companies signed the attendance sheet. He was also asked to point out documents if any from which it could be ascertained that any presentation was made on behalf of A-1 M/s KSSPL or any feedback form was submitted on behalf of the company. The witness however claimed his inability to point out any such documents even though similar records qua other applicant companies was available in the files of MOC. An inference was thus sought to be drawn from the aforesaid series of questions that no presentation was made on behalf of A-1 M/s KSSPL and also that no feedback form was submitted.
218. PW 16 N.R. Dash, Director, Ministry of Steel attended the meetings of 36th screening committee alongwith Joint Secretary Steel Sh. U.P. Singh. He also stated that in the initial three meetings held on 07/08.12.07 and 07.02.2008 various applicant companies had made their presentations. He also stated that the representatives of the applicant companies also used to supply a copy of the presentation so made by them alongwith copy of feed-back form to the members of screening committee. Again in his cross-examination as conducted on behalf of A-1 M/s KSSPL or A-2 Pawan Kumar Ahluwalia neither any question nor any suggestion was put that no such presentation was made on behalf of A-1 M/s KSSPL or that no feed-back form was submitted. On behalf of A-3 Amit Goyal also no question at all was put to the said witness.
219. Apart from the aforesaid nature of evidence led by the CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 153 of 350 prosecution it will be also worthwhile to refer to the deposition of DW- 10 K.C. Samria and DW-11 KS Kropha when they both entered the witness box as defence witnesses u/s 315 Cr.PC.
220. DW-10 K.C. Samria in his examination- in-chief stated that hard copies of the power point presentations made by the applicant companies and the feed-back forms submitted by them were circulated to the members of Screening Committee at the time of presentation itself as were provided by the applicant companies. This witness beside being cross-examined by Ld. Sr. PP Sh. V.K. Sharma was also cross examined by Ld. Counsel for A-1 M/s KSSPL. However in his said cross examination as conducted by Ld. Counsel for A-1 M/s KSSPL neither any question nor any suggestion was put that no presentation was made on behalf of A-1 M/s KSSPL or that no feed-back form was submitted by the company.
221. As regard the deposition of DW 11 K.S. Kropha I deem it appropriate to reproduce the relevant portion of his examination-in- chief as under :
"All the applicant companies were invited to make a presentation before the Committee on the 7 th and 8th December, 2007 and 7th February, 2008. Records show that a representative of M/s KSSPL, namely, Sh. Amit Goyal had recorded his attendance during those days. It is logical to presume that Sh. Amit Goyal must have been heard by the committee. There was no other reason for him to come and mark his attendance."
(Emphasis supplied by me)
222. However for reasons best known to other co-accused CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 154 of 350 persons, DW 11 K.S. Kropha was not at all cross-examined on behalf of any of them much less on behalf of A-1 M/s KSSPL, A-2 Pawan Kumar Ahluwalia or A-3 Amit Goyal. It will be also worthwhile to mention that while examination-in-chief of both DW-10 K.C. Samria and DW-11 K.S. Kropha was recorded on 19.08.16 itself but they were cross-examined on 03.09.2016 only. Thus while Ld. Counsel for A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia chose to cross examine DW-10 K.C. Samria on 03.09.2016 itself but he did not prefer to cross examine DW-11 K.S. Kropha.
223. At this stage it will be also worthwhile to note the response given by A-3 Amit Goyal A-4 H.C Gupta, A-5 K.S. Kropha and A-6 K.C. Samria to question no. 204 in their statements u/s 313 Cr.PC as regard the issue of making presentation by A-1 M/s KSSPL before the Screening Committee:
"Q. 204 It is further in evidence against you that in reply dated 07.01.2013, part of Ex. PW-3/R (colly) submitted by accused company M/s KSSPL under the signatures of accused Pawan Kumar Ahluwalia as Director/authorised signatory of M/s KSSPL it was stated in para 5 & 6 that ".....A power point presentation from the computer was made to the Screening Committee. However the same is not traceable with the Company due to lapse of time" and "the Chartered Accountant of the Company Sh. Amit Goyal went to attend the Screening Committee meeting on 08.12.2008 as replacement of accused Pawan Kumar Ahluwalia who due to some personal commitment could not go". What have you to say?
A-3 Amit Goyal Ans. While it is correct that Sh. Pawan Kumar Ahluwalia's letter contains that portion of his letter which has been quoted in the question under reply, the contents of the same are not correct. I did appear before the Screening Committee but not as a replacement for Sh. Pawan Kumar Ahluwalia nor did I appear CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 155 of 350 before the Screening Committee as a representative of the company. I had been requested by Sh. Pawan Kumar Ahluwalia to accompany him in the said meeting and to carry with me the copies of the relevant Audit reports prepared by me so that I may answer any queries that the Screening Committee may have with respect to those Audit reports only. Sh. Pawan Kumar Ahluwalia could not attend the meeting owing to certain unforeseen circumstances and I informed the Screening Committee of the same. At that point I was asked to leave. My interaction with the Screening Committee barely lasted two minutes and during that time no queries of whatsoever nature regarding the company were put to me by the members of the Screening Committee. My engagement with M/s KSSPL has always been of a professional nature and I have never been a representative or an authorized representative of the company and there is no evidence to support any such assertion. The letter referred to in the question under reply does not suggest that any presentation was made by me in any event on that day and I affirmatively submit that no presentation, power point or otherwise was made by me on that date.
A-4 H.C. Gupta.
Ans. It is a matter of record, but most applicant companies had made power point presentations before the Screening Committee.
A-5 K.S. Kropha.
Ans. It is a matter of record. but most applicant companies had made power point presentations before the Screening Committee.
A-6 K.C Samria.
Ans. It is matter of record."
224. The purpose of referring to the aforesaid nature of evidence led by prosecution or by the accused persons coupled with the responses given by the accused persons in their statements u/s 313 Cr.PC was to only show the inconsistent and contradictory stands taken by both A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia as regard the issue whether any presentation was made before the Screening Committee on behalf of A-1 M/s KSSPL or not. It is not CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 156 of 350 that in a criminal trial an accused is not permitted to take multiple plea of defence but what is important to see is whether the said multiple plea of defence being taken by an accused on any given issue are self contradictory or inconsistent in nature or not.
225. However at this stage I may mention as a mark of caution that I am not trying to extend any benefit to prosecution on account of any such weaknesses of defence but the only point sought to be drawn home is that at-least A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia could have produced the concerned officer of A-1 M/s KSSPL who had conveyed the information to A-2 Pawan Kumar Ahluwalia that a power point presentation was made on behalf of the company before the screening committee. The said officer could have only explained as to in what circumstances he came to convey such an information to A-2 Pawan Kumar Ahluwalia or how he himself acquired such a knowledge.
226. Coming back to the issue under consideration, I may state that the present coal block allocation matters are such which are primarily based on documentary nature of evidence and in a number of cases like the case in hand the private parties and officers of MOC were prima facie found to be hands in glove in allocation of various coal blocks. It is in this light the circumstances relating to missing of number of records from MOC relating to coal block allocation matters needs to be seen and appreciated. It is in these circumstances only the various plea of defence taken by the accused persons needs to be appreciated. However I may again reiterate that I am still not CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 157 of 350 drawing any conclusion based on the said reply Ex.PW3/R (Colly) given by A-1 M/s KSSPL under the signatures of A-2 Pawan Kumar Ahluwalia during the course of investigation.
227. This Court is thus left with no other option but to believe the stand being now taken by A-1 M/s KSSPL, A-2 Pawan Kumar Ahluwalia and A-3 Amit Goyal that no presentation was made on that day on behalf of company M/s KSSPL before the screening committee and also no feedback form was submitted. However in these circumstances various other questions crops-up for consideration. Admittedly company M/s KSSPL was called upon to make presentation before the Screening Committee on 08.12.2007 and as claimed by the accused persons themselves A-2 Pawan Kumar Ahluwalia was to himself appear before the screening committee alongwith A-3 Amit Goyal but due to certain unavoidable circumstances could not attend the Screening Committee meeting even though A-3 Amit Goyal reached the meeting venue.
228. It is also the consistent and admitted stand of A-3 Amit Goyal that he was asked by A-2 Pawan Kumar Ahluwalia to accompany him to the screening committee meeting in order to answer any questions if raised regarding the audited reports of the company. It is also the case of A-3 Amit Goyal that while he reached the meeting venue on 08.12.2007 but for some unavoidable reasons A-2 Pawan Kumar Ahluwalia could not reach. This fact has not been disputed even by A- 2 Pawan Kumar Ahluwalia.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 158 of 350
229. In the aforesaid circumstances it will be thus quite logical to infer that the presentation which was to be made before the Screening Committee on 08.12.2007 must have been prepared prior to it in the company M/s KSSPL. Similarly the feedback form which was to be submitted in 25 copies must have been prepared in the company prior to 08.12.2007. It was primarily for this reason only that A-2 Pawan Kumar Ahluwalia in his reply to notice u/s 91 Cr.PC stated that the power point presentation was made but the same was not available. As regard feedback form, it was only stated that no feedback form was submitted. Nothing has been stated even now during the course of trial as to whether presentation and feedback form were prepared by A-1 M/s KSSPL or not. At the cost of repetition, I may state that as A-1 M/s KSSPL was scheduled to make presentation before the Screening Committee on 08.12.2007 so keeping in view the natural course of conduct of public and private business, the Court can certainly presume the existence of some of such facts as are likely to have happened i.e. the company M/s KSSPL must have prepared the presentation and the feedback form to be submitted to the Screening Committee before the date of meeting of Screening Committee i.e. 08.12.2007. However neither A- 1 M/s KSSPL nor A-2 Pawan Kumar Ahluwalia have stated anything as to what was mentioned either in the feedback form or in the presentation as were prepared in the company. These are facts of such a nature which can be exclusively to the knowledge of accused persons only and the prosecution could not have led any evidence in this regard. Thus it will be again logical to infer that while preparing CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 159 of 350 the presentation or while filling up the feedback form the earlier discrepancies/misrepresentations made in the application Ex. PW 1/F (colly) (D-10) must have come to the notice of A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia. However a second plea of there being again inadvertence in preparing the presentation or the feedback form would be hard to even put forth much less to believe. In the alternative, if those misrepresentations as were there in the initial application form had come to their notice then it was the bounden duty of both A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia to point out the said mistakes in the initial application to the Screening Committee or at least to MOC, if not on 08.12.2007, i.e. on the date of presentation but at least on some other later date. It was primarily for this reason that factum of making presentation before the Screening Committee or submission of feedback form is being repeatedly denied and even copies thereof in the records of A-1 M/s KSSPL are also stated to be not traceable.
230. On the other hand if the said discrepancies/ misrepresentations were being still carried in the feedback form and presentation then the fact remains that the impugned misrepresentations or act of withholding of requisite documents containing relevant facts by A-1, M/s KSSPL and A-2 Pawan Kumar Ahluwalia continued till the stage of final allocation of coal block by MOC. In fact in the absence of presentation and feedback form having been not submitted to the Screening Committee, the impugned misrepresentations in the initial application and the act of CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 160 of 350 withholding of requisite documents continued till the stage of final allocation of coal block by MOC.
231. Thus from my aforesaid discussion it is clear that the evidence regarding presentation or feedback from which must have been available with the company A-1 M/s KSSPL has not been produced as it would have been unfavourable to the accused company A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia. As already mentioned the contents of the presentation and the feedback form which was to be submitted to the Screening Committee on that day, had A-2 Pawan Kumar Ahluwalia reached the meeting venue, could be exclusively to the knowledge of A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia only. They thus did not produce any evidence qua the contents thereof only because the same would have been unfavourable to them.
232. In this regard it would be worthwhile to mention certain observations of Hon'ble Supreme Court as were made in Para 24 in the case Kali Ram Vs. State of Himachal Pradesh (Supra).
"24. Leaving aside the cases of statutory presumptions, the onus is upon the prosecution to prove the different ingredients of the offence and unless it discharges that onus, the prosecution cannot succeed. The court may, of course, presume, as mentioned in section 114 of the Indian Evidence Act, the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business. in their relation to the facts of the particular case. The illustrations mentioned in that section, though taken from different spheres of human activity, are not exhaustive. They are based upon human experience and have to be applied in the context of the facts of CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 161 of 350 each case. The illustrations are merely examples of circumstances in which certain presumptions may be made. Other presumptions of a similar kind in similar circumstances can be made under the provisions of the section itself Whether or not a presumption can be drawn under the section in a particular case depends ultimately upon the facts and circumstances of each case. No hard and fast rule can be laid down. Human behaviour is so complex that room must be left for play in the joints. It is not possible to formulate a series of exact propositions and confine human behaviour within straitjackets. The raw material here is far too complex to be susceptible of precise and exact propositions for exactness here is a fake."
233. At this stage I may also mention that the issue whether by appearing before the screening committee on behalf of A-1 M/s KSSPL, A-3 Amit Goyal became a part of criminal conspiracy, if any hatched by the other accused persons or not shall be discussed by me at a later stage of the present judgment. Moreover while discussing the role of accused MOC officers as regard the nature of minutes recorded by them I shall be again reverting back to the issue of presentation having been not made or feedback form not submitted by A-1 M/s KSSPL.
(G) Whether the data furnished by A-1 M/s KSSPL was considered by the Screening Committee, MOC.
234. As already mentioned the guidelines issued by MOC governing allocation of captive coal blocks clearly stated that for deciding the inter-se priority of various competing applicants for allocation of a captive coal block, the status (stage) level of progress and state of preparedness of the projects beside net-worth of the applicant company and also the track record and financial strength of the company shall be relevant factors.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 162 of 350
235. However apart from the said guidelines a perusal of the minutes of 36th Screening Committee also clearly show that the information as submitted by the applicant companies in their application form was considered. Though I shall be referring to the minutes of 36th Screening Committee at length at a later stage of the judgment while discussing the role of accused MOC officers in the entire coal block allocation process but it would be worthwhile to refer to certain relevant portion of the said minutes over here. The same read as under:
"MINUTES OF THE 36TH MEETING OF THE SCREENING COMMITTEE HELD ON 7TH-8TH December, 2007, 7th-8th February, 2008 and 3rd JULY, 2008 IN NEW DELHI TO CONSIDER ALLOCATION OF 23 COAL BLOCKS EARMAKRD FOR NON-POWER SECTOR.
1. . . . . . .
2. . . . . . .
3. . . . . . .
4. . . . . . .
5. . . . . . .
. . . . . .
. . . . . .
6. Some of the companies did not appear for presentation despite the notices issued to them through individual letters, as well as through the Ministry's web-site. However, their applications were also considered by the Screening Committee as per the information submitted by them in their application forms.
7. . . . . . .
. . . . . .
. . . . . .
8. (i) The Chairman then invited the Joint Secretary, Ministry of Steel to brief the members about the rationale followed by the Ministry of Steel for evaluating the applications relating to sponge iron, pig iron and steel project. The Joint Secretary, MOS explained that the present capacity of steel production in the country is around 60 MT and the Ministry of Steel is projecting a capacity expansion of 6% to 7% in the immediate future.
Therefore, the blocks be allocated to those companies which are genuine, technically and financially sound to take up the project CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 163 of 350 and where capacity addition is expected to be accomplished by the year 2010. These companies need to be encouraged with assured supply of coal as raw material and those who are not expected to set up the projected capacities based on their track record etc. should be discouraged. Allocation of coal block to smaller players though desirable, but keeping in view their technical and financial constraints, it would be difficult for them to get the block developed in a time bound manner. He suggested that the requirement of small producers, which are genuine, should be met through linkages granted from CIL subsidiaries. He further stated that priority for allocation of coking coal blocks may be determined in the following order:-
. . . . . .
. . . . . .
. . . . . .
9 . . . .
. . . .
10 . . . .
. . . .
11 . . . .
. . . .
12 . . . .
. . . .
13. The Screening Committee, thereafter, deliberated at length over the information furnished by the applicant companies in the application forms, during the presentations and subsequently. The committee also took into consideration the views/comments of the Ministry of Steel, Department of Industrial Policy and Promotion, State Governments concerned, guidelines laid down for allocation of coal blocks, and other factors as mentioned in paragraphs 8 to 12 above. As regards inter-se distribution of shares among the joint allocattees, it was decided by the Committee that capacity of end-use projects shall be determined as follows:
i) The capacity indicated in the application form;
ii) The capacity indicated in the MOU entered into between the applicant company and the State Govt. concerned, wherever applicable;
iii) The realistic capacity addition likely to materialize by the year 2010, as assessed by the nodal Ministry/ Department concerned;
14. Based on the data furnished by the applicants, and the feedback received from the State Governments, the Ministry of Steel and Department of Industrial Policy and Promotion, the Committee assessed the applications having regard to matters such as techno-economic feasibility of end-use project, status of CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 164 of 350 preparedness to set up the end-use project, past track record in execution of projects, financial and technical capabilities of applicant companies, recommendations of the State Governments and the Administrative Ministries concerned etc. The Screening Committee, accordingly, decided to recommend for allocation of coal blocks in the manner as follows: . . . . .
. . . . .
. . . . ."
(Emphasis supplied by me)
236. Thus from the guidelines issued by MOC and the minutes of 36th Screening Committee meetings, it is crystal clear that the Screening Committee while making its recommendations relied heavily on the information furnished by the applicant companies in their application forms and especially the production capacity of the plant and financial capability of the applicant companies.
(H) Whether the misrepresentations made by the company M/s KSSPL or withholding/concealment of requisite documents from MOC had the effect of deceiving MOC, Government of India.
& (I) Whether issuance of letter of allotment of coal block amounted to delivery of property resulting in wrongful gain to A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia.
237. Before adverting further it will be worthwhile to refer to the definition of the offence of cheating as given in Section 415 IPC.
"415. Cheating.--Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 165 of 350 would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".
Explanation.--A dishonest concealment of facts is a deception within the meaning of this section."
238. In this regard, it will be now first appropriate to consider as to what is the meaning of the phrase "deceiving any person" as has been used in the definition of cheating as provided in Section 415 IPC.
239. In the case Swami Dhirendra Brahamchari Vs. Shailendra Bhushan, 1995 Cr. L.J. 1810 (Delhi), Hon'ble Delhi High Court while dealing with the word deceiving as used in Section 415 IPC, observed that generally speaking "deceiving" is to lead into error by causing a person to believe what is false or to disbelieve what is true and such deception may be by words or by conduct. A fraudulent representation can be made directly or indirectly.
Hon'ble Allahabad High Court in the case P.M. Natrajan Vs. Krishna Chandra Gupta, 1975 Cr. L.J. 899 (All.) explained the word "deceive" as indicating inculcating of one so that he takes the false as true, the unreal as existent, the spurious as genuine.
Hon'ble Supreme Court in the case Ellerman & Bucknall Steamship Co. Ltd. vs Sha Misrimal Bherajee, AIR 1966 SC 1892, explained "deceit" as a false statement of a fact made by a person knowingly or recklessly with the intent that it shall be acted upon by another who does act upon it and thereby suffers damage.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 166 of 350
240. It was stated that in all such cases of deception, the object of the deceiver is fraudulent. He intends to acquire or retain wrongful possession of that to which some other person has a better claim. Thus where a person parted away with a property while acting on such a representation of an accused believing in the truth thereof, it clearly amounts to deceiving the person. However, it is also important that the person practicing the deceit knows or has reason to believe the said representation to be false. Though in the true nature of things, it is not always possible to prove dishonest intention by direct evidence. It can be however proved by number of circumstances only from which a reasonable inference can be drawn.
Further the explanation to Section 415 IPC i.e. cheating states that a dishonest concealment of facts is a deception within the meaning of this section.
241. Coming to the case in hand it will be suffice to state and as already discussed at length the prosecution has been successful in proving beyond shadows of all reasonable doubts that both A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia had knowledge that all the requisite documents as were required to be filed with the application in terms of the guidelines issued by MOC governing allocation of coal blocks were not filed. It also stands well proved that in the application of A-1 M/s KSSPL as was submitted to MOC under the signatures of A-2 Pawan Kumar Ahluwalia highly inflated claims of net-worth and existing or proposed capacity of the end use plant were made.
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242. The sole plea of defence as put forward by A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia that the aforesaid acts of not filing the complete requisite documents or mentioning of wrong figures in the application were the result of inadvertent mistake on the part of the staff of the company was also found to be without any substance worth the name even. Even for the purposes of preponderance of probability the accused persons could not substantiate it. It was clearly insufficient to even raise any shadow of doubt over the credible convincing and reliable nature of evidence led by the prosecution. In fact in the overall facts and circumstances of the case the said plea of defence does not even appeal to any legal or logical reasoning in any manner whatsoever. Thus in the overall facts and circumstances of the case as already discussed at length this Court while having regard to common course of events of public and private business believes in the existence of all such facts and considers them as proved.
Moreover the fact that the company despite having opportunities over a period of about one and a half years when the applications were processed in MOC chose not to rectify the said mistakes but rather chose to also not attend the Screening Committee meeting to make a presentation or to submit a feedback form so that the initial misrepresentations may continue to hold ground clearly shows that all such acts of omission and commission of A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia were part of a well planned strategy to deceive MOC by making it to believe all such CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 168 of 350 false claims to be true and rely upon them and thereby to induce it to allot a coal block in favour of A-1, M/s KSSPL.
243. Another important issue raised by Ld. Counsels for accused persons was that mere issuance of allotment letter can not amount to delivery of any property as mentioned in Section 420 IPC. In this regard, the observations of Hon'ble Supreme Court of India as were made in its orders dated 25.08.14, passed in the Manohar Lal case (Supra) in para 61, 69, 70 and 71, will be worth referring to.
"61. There seems to be no doubt to us that allocation letter is not merely an identification exercise as is sought to be made out by the learned Attorney General. From the position explained by the concerned State Governments, it is clear that the allocation letter by the Central Government creates and confers a very valuable right upon the allottee. We are unable to accept the submission of the learned Attorney General that allocation letter is not bankable. As a matter of fact, the allocation letter by the Central Government leaves practically or apparently nothing for the State Government to decide save and except to carry out the formality of processing the application and for execution of the lease deed with the beneficiary selected by the Central Government. Though, the legal regime under the 1957 Act imposes responsibility and statutory obligation upon the State Government to recommend or not to recommend to the Central Government grant of prospecting license or mining lease for the coal mines, but once the letter allocating a coal block is issued by the Central Government, the statutory role of the State Government is reduced to completion of processual formalities only. As noticed earlier, the declaration under Section 1A of the CMN Act does not take away the power of the State under Section 10(3) of the 1957 Act. It is so because the declaration under Section 1A of the CMN Act is in addition to the declaration made under Section 2 of the 1957 Act and not in its derogation. 1957 Act continues to apply with the same rigour in the matter of grant of prospecting license or mining lease of coal mines but the eligibility of persons who can carry out coal mining operations is restricted to the persons specified in CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 169 of 350 Section 3(3)(a) of the CMN Act.
. . . . . .
. . . . . .
. . . . . .
69. Assuming that the Central Government has competence to make allocation of coal blocks, the next question is, whether such allocation confers any valuable right amounting to grant of largesse? Learned Attorney General argues that allocation of coal blocks does not amount to grant of largesse since it is only the first statutory step. According to him, the question whether the allocation amounts to grant of largesse must be appreciated not from the perspective whether allocation confers any rights upon the allocatee but whether allocation amounts to conferment of largesse upon the allocatee. An allocatee, learned Attorney General submits, does not get right to win or mine the coal on allocation and, therefore, an allocation letter does not result in windfall gain for the allocatee. He submits that diverse steps, as provided in Rules 22A, 22B, and 22(5) of the 1960 Rules and the other statutory requirements, have to be followed and ultimately the grant of prospecting license in relation to unexplored coal blocks or grant of mining lease with regard to explored blocks entitles the allocatee/licensee/lessee to win or mine the coal.
70. We are unable to accept the submission of the learned Attorney General that allocation of coal block does not amount to grant of largesse. It is true that allocation letter by itself does not authorize the allottee to win or mine the coal but nevertheless the allocation letter does confer a very important right upon the allottee to apply for grant of prospecting license or mining lease. As a matter of fact, it is admitted by the interveners that allocation letter issued by the Central Government provides rights to the allottees for obtaining the coal mines leases for their end-use plants. The banks, financial institutions, land acquisition authorities, revenue authorities and various other entities and so also the State Governments, who ultimately grant prospecting license or mining lease, as the case may be, act on the basis of the letter of allocation issued by the Central Government. As noticed earlier, the allocation of coal block by the Central Government results in the selection of beneficiary which entitles the beneficiary to get the prospecting license and/or mining lease from the State Government. Obviously, allocation of a coal CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 170 of 350 block amounts to grant of largesse.
71. Learned Attorney General accepted the position that in the absence of allocation letter, even the eligible person under Section 3(3) of the CMN Act cannot apply to the State Government for grant of prospecting license or mining lease. The right to obtain prospecting license or mining lease of the coal mine admittedly is dependant upon the allocation letter. The allocation letter, therefore, confers a valuable right in favour of the allottee. Obviously, therefore, such allocation has to meet the twin constitutional tests, one, the distribution of natural resources that vest in the State is to sub-serve the common good and, two, the allocation is not violative of Article
14."
244. Thus in view of the aforesaid observations of Hon'ble Supreme Court, the allocation letter issued by MOC in favour of accused company M/s KSSPL clearly amounts to delivering of property i.e. rights qua valuable and natural resource of the country. It amounts to grant of largesse. The letter of allocation was thus a valuable security in itself much less a document which was capable of being converted into a valuable security.
245. It was also argued by Ld. Counsels for the accused persons that no wrongful gain was caused to the accused persons by the said allotment of coal block as no coal was at all extracted and thus no wrongful loss was caused to anyone. In this regard it will be suffice to state and as also observed by Hon'ble Supreme Court in Manohar Lal Sharma case (Supra) that allocation of coal blocks amounted to grant of largesse in favour of applicant companies and thus it cannot be stated that no wrongful gain was caused to the applicant companies. The observations of Hon'ble Supreme Court in the said case in para 70 and 71 (as reproduced above) will be worth referring CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 171 of 350 to.
246. In so far as loss which occurred to the nation as a whole it will be suffice to state that had coal been extracted if the coal block was allocated to a genuine and deserving company in an objective manner then it would have certainly added to the infrastructural development of the country. This in itself has resulted in wrongful loss to the country in its economic development and the said loss is difficult to be accounted for in terms of money. Thus it is again a fallacious argument that no wrongful loss or gain has been caused on account of allocation of said coal block to A-1 M/s KSSPL.
(J) Whether the dishonest misrepresentation continued before Prime Minister as Minister Of Coal and thereby cheating MOC, Government of India.
247. In this regard it will be also worthwhile to refer to certain observations of Hon'ble Supreme Court in the case Kanumukkala Krishnamurthy @ Kaza Krishnhamurthy Vs. State of Andhara Pradesh, AIR 1965 SC 333. The issue involved in the said case and the present case in hand are almost similar.
248. In the said case accused Kanumukkala Krishnamurthy had applied for appointment of Assistant Surgeon in Madras Medical Services in pursuant to notification published by Madras Public Service Commission inviting applications. However, later on, it was found that the accused had misrepresented himself by impersonating as some other person and also misrepresented about his parentage CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 172 of 350 and place of birth. It was also found that accused was not even holding minimum educational qualification i.e. degree of MBBS and thus he misled the Public Service Commission Authorities to believe the said misrepresentation to be true. Upon final conviction of the accused for the offence U/S 419 IPC i.e. cheating by impersonation by Hon'ble High Court of Madras, the accused challenged his conviction before Hon'ble Supreme Court by way of Special Leave Petition. The issue as to whether by way of said case of misrepresentation/impersonation, the accused deceived Government of Madras or not came up for consideration. While discussing various aspects of the offence of cheating and thereby that of cheating by impersonation, the observations made by Hon'ble Supreme Court will be worth referring to:
"11. The only other question to determine now is whether the appellant deceived the Government of Madras and dishonestly induced it to deliver something in the form of salary to the appellant. It is urged that the appointment to the post lay with the Government and not with the Service Commission and that 'the Government would not have appointed him to the post in the Medical Service if it had not believed that the appellant possessed the necessary qualifications which, in his case, would be a degree of M.B., B.S., and that such a belief was entertained by the Government on account of the deception practised by the appellant in misrepresenting in his application that he held such a degree. On the other hand, it is contended for the appellant that the delivery of 'property' is to be by the person deceived, in view of the language of Section 415 I.P.C., and that the person deceived, if any, was the Service Commission and not the Government, the application containing the misrepresentation having been made to the Service Commission and not to the Government.
12. We accept the contention for the respondent. The appointments to the Medical Services are made by Government. The Service Commission simply selected the candidates and recommends their names to Government for CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 173 of 350 appointment. This is clear from letter Exhibit P. 47 from the Secretary to the Service Commission to the Surgeon-General with the Government of Madras. The letter refers to the enclosing of a list containing the names and other particulars of the candidates who were successful at the examination, their names being arranged in order of merit. It refers to the relaxing of a certain rule in view of the paucity of candidates and states that they may be appointed, if necessary, pending receipt of the certificate of physical fitness and a further communication from the commission.
13. This is also clear from the provisions of the Government of India Act, 1935. Section 241 provided that appointments in connection with the affairs of a Province will be made by the Governor of the Province. Sub-Section (1) of Section 266 makes it a duty of the Provincial Public Service Commission to conduct examinations for appointments to the Services of a Province. Clause (a) of sub-s. (3) provides that the Provincial Public Service Commission shall be consulted on all matters relating to methods of recruitment to civil services and for civil posts and cl. (b) provides that it shall be consulted on the principles to be followed in making appointments to civil services and posts and on the suitability of candidates for such appointments. The Public Service Commission is constituted in pursuance of the provisions of Section 264. It is thus a statutory body and independent of the Government. This aspect of a Public Service Commission was emphasized in State of U.P. v. Manbodhan Lal Srivastava when considering the corresponding provisions of Article 320 of the Constitution. This Court said:
"Once, relevant regulations have been made, they are meant to be followed in letter and in spirit and it goes without saying that consultation with the Commission on all disciplinary matters affecting a public servant has been specifically provided for in order, first, to give an assurance to the Services that a wholly independent body, not directly concerned with the making of orders adversely affecting public servants, has considered the action proposed to be taken against a particular public servant, with an open mind; and, secondly, to afford the Government unbiased advice and opinion on matters vitally affecting the morale of public services".
It is in view of these provisions that the Public Service Commission invites applications for appointment to the various posts under the Government and subsequently makes a selection out of the candidates for appointment to those posts. The selection may be after holding a written examination or after interviewing candidates or after doing both. Names of the CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 174 of 350 candidates selected are arranged in order of merit and forwarded to the Government. The Government is expected, as a rule, to make appointments to the posts from out of the list, in the same order. It has, however, discretion not to appoint any part of the persons so selected and securing a place in the order of merit which would have ordinarily led to his appointment.
14. Any representation made in an application for appointments is really a representation made to the Government, the appointing authority, and not only to the Public Service Commission to which the application is presented and which has to deal with that application in the first instance. up to the stage ,of selection. The object of the applicant was to secure an appointment and not merely to deceive the Public Service Commission and sit at the examination or to appear at the interview. The deception was practised for that purpose and therefore there seems to be no good reason for holding that the deception came to an end once the Service Commission was deceived and had taken action on it as a result of the deception. A false representation in an application to the Service Commission continues and persists to be so till the application is considered by the final authority responsible for making the appointments and must therefore be deemed to be made to that final authority as well. In the instant case, when the recommendation of the Service Commission was sent to the Government, the qualifications of the recommended candidates, including the fact that the appellant had passed the M.B.,B.S. examination were mentioned. The Government therefore believed that the appellant possessed the degree of M.B.B.S., that as the Service Commission had scrutinized the application in that regard and had satisfied itself that the appellant possessed that degree. The consequence of that is that the Government were led to believe that fact, which thus became a false representation.
We are therefore of opinion that the appellant's mis- representation to the Service Commission continued and persisted till the final stage of the Government passing an order of appointment and that therefore the Government itself was deceived by the misrepresentation he had made in his application presented to the Service Commission."
(Emphasis supplied by me)
249. Thus it is clear that the dishonest misrepresentation as were CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 175 of 350 made by the accused persons before the Screening Committee continued even before Prime Minister as Minister of Coal when he approved the recommendation of Screening Committee. The Screening Committee was admittedly constituted to deal with all applications received for allotment of various coal blocks and to make its recommendation thereafter. The Prime Minister as Minister of Coal was thus to act upon the said recommendation only. Accordingly the dishonest misrepresentation made before the Screening Committee continued even before the Prime Minister as Minister of Coal when he approved the recommendations of the Screening Committee. (However whether the accused MOC officers were acting in pursuance of any conspiracy with the private parties involved and thereby facilitated them in continuing with their misrepresentations even before Minister of Coal or not shall be discussed by me at a later stage of the present judgment.) (K) Whether the ingredients of the offence of cheating stands proved.
250. As already discussed above the various ingredients of the offence of cheating coupled with delivery of property stands proved beyond shadows of all reasonable doubts as against A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia. They thus clearly deceived MOC, Government of India on the basis of dishonest misrepresentations made in the application and by dishonestly with-holding documents as were available with them so as to induce MOC, Government of India to allocate Thesgora-B/Rudrapuri coal block in favour of A-1 M/s CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 176 of 350 KSSPL. Ministry of Coal, Government of India thus clearly stood cheated on account of the aforesaid dishonest acts of accused persons namely A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia resulting in allotment of "Thesgora-B/Rudrapuri Coal Block" in favour of company A-1 M/s KSSPL. The offence of cheating i.e. u/s 420 IPC thus clearly stands proved beyond shadows of all reasonable doubts as against A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia.
251. Before proceeding further, I would also like to deal with one other submission of Ld. Counsel Sh. Pavan Narang for A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia that as all the necessary facts and different heads of charges such as that of cheating or of criminal conspiracy were not put to the accused persons in their statements u/s 313 Cr.PC so the said heads of charges can not be invoked against A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia. It was submitted by Ld. Counsel that the two accused persons were never put any question in their statements recorded u/s 313 Cr. PC that they had entered into any criminal conspiracy with other accused persons or that they had conspired to cheat Ministry of Coal, Government of India. It was thus submitted that as no such questions were put to accused persons in their statements recorded u/s 313 Cr. PC so the charges for the offence u/s 420 IPC or that of criminal conspiracy u/s 120 IPC cannot be invoked against them.
252. At the outset, I may state that aforesaid submission of Ld.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 177 of 350 Counsel for A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia is completely not tenable. In this regard, it will be appropriate to first have a glance over Section 313 Cr. PC.
313. Power to examine the accused - (1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court-
(a) may at any stage, without previously warning the accused put such questions to him as the Court considers necessary;
(b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case:
Provided that in a summons- case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b). (2) No oath shall be administered to the accused when he is examined under sub- section (1).
(3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them.
(4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed.
1[(5) The Court may take help of Prosecutor and Defence Counsel in preparing relevant questions which are to be put to the accused and the Court may permit filing of written statement by the accused as sufficient compliance of this section.]"
253. Thus from a bare perusal of section 313 Cr.PC, it is clear that objective of examining an accused u/s 313 Cr.PC is to enable him to explain any circumstance appearing in the evidence against him. Section 313 (1) (b) Cr.PC further states that after the witnesses for the prosecution have been examined and before he is called on for his defence, the Court shall question the accused generally on the case. Thus it is crystal clear that u/s 313 Cr.PC, the Court is only CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 178 of 350 required to question the accused generally on the case and it is only the circumstances appearing in the evidence against him which are to be put to him to furnish any explanation. The law does not require that the specific heads of charges framed against the accused persons ought to be put to the accused persons in their statements u/s 313 Cr.PC. Apart from the aforesaid circumstances the two accused persons i.e. A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia also chose to file their written statements u/s 313 (5) Cr.PC after their statements u/s 313 Cr.PC were recorded.
254. A bare perusal of Section 313 (5) Cr.PC shows that filing of written statement by the accused shall amount to compliance of the said section i.e. Section 313 Cr.PC. Thus the contention of Ld. Counsel for A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia that the charge of criminal conspiracy i.e. u/s 120-B IPC or that of cheating i.e. u/s 420 IPC cannot be invoked against the accused persons does not hold ground at all.
(L) Whether the accused persons i.e. A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia acted in pursuance to a criminal conspiracy.
255. Having come to the conclusion that both A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia cheated MOC, Government of India in order to procure allocation of Thesgora-B/Rudrapuri Coal Block in favour of A-1 M/s KSSPL, the next issue to be considered is whether such acts of cheating were committed by the two accused persons in pursuance to a criminal conspiracy hatched by them or not.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 179 of 350
256. It has been vehemently argued by Ld. Counsels for the accused persons that in order to establish the charge of criminal conspiracy, the prosecution is required to prove that an agreement was entered into by the accused persons either for doing of an illegal act or for doing by illegal means an act which by itself may not be illegal. It was submitted that a few bits here and a few bits there cannot be relied upon by the prosecution in order to prove the charge of criminal conspiracy. It was submitted that even if no direct evidence may be available and the charge of criminal conspiracy is sought to be proved by way of circumstantial evidence then also each of the circumstance leading to such a conclusion must be independently explained and proved and the said circumstances should not be explainable on any other hypothesis or in other words should not lead to any other conclusion much less consistent with the innocence of accused persons. It was thus submitted that prosecution has miserably failed in proving existence of any agreement between the two accused persons i.e. A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia much less with A-3 Amit Goyal or with the other accused MOC officers.
257. In order to appreciate the aforesaid submissions of Ld. Counsels for the accused persons vis-a-vis the case of prosecution, it will be appropriate to refer to the often quoted observations of Hon'ble Supreme Court as regard the offence of criminal conspiracy as were made in the case "State through Superintendent of Police, CBI/SIT Vs. Nalini", 1999 (5) SCC 235. The said CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 180 of 350 observations have been consistently followed in all the cases till date.
258. In the said case, Hon'ble Supreme Court summarized the broad principles governing the law of conspiracy as under:
"591. Some of the broad principles governing the law of conspiracy may be summarized though, as the name implies, a summary cannot be exhaustive of the principles. Under Section 120A IPC offence of criminal conspiracy is committed when two or more persons agree to do or cause to be done an illegal act or legal act by illegal means. When it is legal act by illegal means overt act is necessary. Offence of criminal conspiracy is exception to the general law where intent alone does not constitute crime. It is intention to commit crime and joining hands with persons having the same intention. Not only the intention but there has to be agreement to carry out the object of the intention, which is an offence. The question for consideration in a case is did all the accused had the intention and did they agree that the crime be committed. It would not be enough for the offence of conspiracy when some of the accused merely entertained a wish, howsoever, horrendous it may be, that offence be committed.
Acts subsequent to the achieving of object of conspiracy may tend to prove that a particular accused was party to the conspiracy. Once the object of conspiracy has been achieved, any subsequent act, which may be unlawful, would not make the accused a part of the conspiracy like giving shelter to an absconder.
Conspiracy is hatched in private or in secrecy. It is rarely possible to establish a conspiracy by direct evidence. Usually, both the existence of the conspiracy and its objects have to be inferred from the circumstances and the conduct of the accused.
Conspirators may, for example, be enrolled in a chain - A enrolling B, B enrolling C, and so on; and all will be members of a single conspiracy if they so intend and agree, even though each member knows only the person who enrolled him and the person whom he enrolls. There may be a kind of umbrella- spoke enrollment, where a single person at the center doing the enrolling and all the other members being unknown to each other, though they know that there are to be other members.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 181 of 350 These are theories and in practice it may be difficult to tell whether the conspiracy in a particular case falls into which category. It may, however, even overlap. But then there has to be present mutual interest. Persons may be members of single conspiracy even though each is ignorant of the identity of many others who may have diverse role to play. It is not a part of the crime of conspiracy that all the conspirators need to agree to play the same or an active role.
When two or more persons agree to commit a crime of conspiracy, then regardless of making or considering any plans for its commission, and despite the fact that no step is taken by any such person to carry out their common purpose, a crime is committed by each and every one who joins in the agreement. There has thus to be two conspirators and there may be more than that. To prove the charge of conspiracy it is not necessary that intended crime was committed or not. If committed it may further help prosecution to prove the charge of conspiracy. It is not necessary that all conspirators should agree to the common purpose at the same time. They may join with other conspirators at any time before the consummation of the intended objective, and all are equally responsible. What part each conspirator is to play may not be known to everyone or the fact as to when a conspirator joined the conspiracy and when he left.
A charge of conspiracy may prejudice the accused because it is forced them into a joint trial and the court may consider the entire mass of evidence against every accused. Prosecution has to produce evidence not only to show that each of the accused has knowledge of object of conspiracy but also of the agreement. In the charge of conspiracy court has to guard itself against the danger of unfairness to the accused. Introduction of evidence against some may result in the conviction of all, which is to be avoided. By means of evidence in conspiracy, which is otherwise inadmissible in the trial of any other substantive offence prosecution tries to implicate the accused not only in the conspiracy itself but also in the substantive crime of the alleged conspirators. There is always difficulty in tracing the precise contribution of each member of the conspiracy but then there has to be cogent and convincing evidence against each one of the accused charged with the offence of conspiracy. As observed by Judge Learned Hand that "this distinction is important today when many prosecutors seek to sweep within the dragnet of conspiracy all those who have been associated in any degree whatever with the main offenders".
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 182 of 350 As stated above it is the unlawful agreement and not its accomplishment, which is the gist or essence of the crime of conspiracy. Offence of criminal conspiracy is complete even though there is no agreement as to the means by which the purpose is to be accomplished. It is the unlawful agreement, which is the graham of the crime of conspiracy. The unlawful agreement which amounts to a conspiracy need not be formal or express, but may be inherent in and inferred from the circumstances, especially declarations, acts, and conduct of the conspirators. The agreement need not be entered into by all the parties to it at the same time, but may be reached by successive actions evidencing their joining of the conspiracy. It has been said that a criminal conspiracy is a partnership in crime, and that there is in each conspiracy a joint or mutual agency for the prosecution of a common plan. Thus, if two or more persons enter into a conspiracy, any act done by any of them pursuant to the agreement is in contemplation of law, the act of each of them and they are jointly responsible therefore. This means that everything said, written or done by any of the conspirators in execution or furtherance of the common purpose is deemed to have been said, done, or written by each of them. And this joint responsibility extends not only to what is done by any of the conspirators pursuant to the original agreement but also to collateral acts incident to and growing out of the original purpose. A conspirator is not responsible, however, for acts done by a co-conspirator after termination of the conspiracy. The joinder of a conspiracy by a new member does not create a new conspiracy nor does it change the status of the other conspirators, and the mere fact that conspirators individually or in groups perform different tasks to a common end does not split up a conspiracy into several different conspiracies.
A man may join a conspiracy by word or by deed. However, criminal responsibility for a conspiracy requires more than a merely passive attitude towards an existing conspiracy. One who commits an overt act with knowledge of the conspiracy is guilty. And one who tacitly consents to the object of a conspiracy and goes along with other conspirators, actually standing by while the others put the conspiracy into effect, is guilty though he intends to take no active part in the crime."
259. Thus, undoubtedly direct evidence qua offence of criminal conspiracy is hard to come up but the same is to be ascertained from CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 183 of 350 the overall facts and circumstances of a given case.
260. Coming now to the facts of the present case, it will be pertinent to mention that factum of submission of application Ex. PW 1/F (colly) (D-10) of A-1 M/s KSSPL under the signatures of its authorized signatory/director i.e. A-2 Pawan Kumar Ahluwalia stands well proved. As also already discussed at length, A-2 Pawan Kumar Ahluwalia cannot disown his responsibility of furnishing correct facts in the application and in also filing of all necessary requisite documents along with the application. It has also been discussed at length that the act of withholding of requisite documents was a conscious and dishonest act. Similarly, it has also been established that wrong claims about the financial strength of A-1 M/s KSSPL i.e. about its net-worth and also about its existing installed production capacity or highly inflated claims regarding the projected capacity of the company were also made dishonestly by A-2 Pawan Kumar Ahluwalia. Thus, it does not require any further discussion that A-2 Pawan Kumar Ahluwalia, who admittedly was looking after the day to day affairs of the company had cheated Ministry of Coal, Government of India on the basis of various dishonest claims made in the application and also by dishonestly withholding requisite documents from Ministry of Coal despite the same being available with the company in order to obtain wrongful gain in favour of A-1 M/s KSSPL. From the deposition of PW-3 Prashant Ahluwalia, it is also clearly evident that A-1 M/s KSSPL was a closely held family company. Thus in view of my aforesaid discussion, company A-1 M/s KSSPL CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 184 of 350 cannot disassociate itself from the acts of A-2 Pawan Kumar Ahluwalia for he was acting on behalf of the company being its director and authorised signatory towards the coal block allocation matters of the company. The existence of common agreement between the two is thus writ large on the face of record. The offence of criminal conspiracy i.e. u/s 120-B IPC, thus, clearly stands proved beyond shadows of all reasonable doubts as against A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia. [The role of A-3 Amit Goyal shall be however discussed at a slightly later stage.]
261. At this stage, I would also like to mention that Ld. Counsel Sh. Pavan Narang for A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia also argued that cognizance of the offence of criminal conspiracy as taken by this court against the accused persons was bad in law as no consent in writing of the State Government or District Magistrate for the initiation of proceedings in accordance with Section 196 (2) Cr. PC was obtained.
262. However, from a bare perusal of Section 196 (2) Cr. PC, it is clear that aforesaid submission is completely devoid of any merits. Clearly in view of the aforesaid discussion of the facts and circumstances of the case it stands conclusively proved that a criminal conspiracy was hatched between A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia for the offence of cheating MOC, Government of India and thereby inducing it to allot a captive coal block in favour of A-1 M/s KSSPL. Thus clearly it is not a criminal CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 185 of 350 conspiracy for the simplicitor offence of cheating but is a criminal conspiracy for the offence of cheating coupled with delivery of property i.e. u/s 420 IPC. Moreover the offence of cheating i.e. u/s 420 IPC is punishable with imprisonment for a period which may extend upto 7 years and fine. Thus, a bare perusal of Section 196(2) Cr. PC shows that where the offence of criminal conspiracy is for an offence punishable with rigorous imprisonment for a term of two years or upwards, then no sanction of State Government or that of the District Magistrate is required for the initiation of the proceedings.
A-3 Amit Goyal
263. In order to appreciate the role played by A-3 Amit Goyal in the entire matter, it would be appropriate to first delineate the various circumstances from which prosecution intends to bring home the charge of cheating and criminal conspiracy against him.
It has been proved that A-3 Amit Goyal was the statutory auditor of company A-1 M/s KSSPL. It has also been proved that he appeared before the Screening Committee on 08.12.2007 on behalf of A-1 M/s KSSPL and accordingly signed the attendance sheet at the meeting venue as a representative of A-1 M/s KSSPL.
264. However apart from the aforesaid circumstances, no other circumstance could be conclusively proved against him. As already discussed at length, it could not be proved by the prosecution by any legally admissible evidence that on 08.12.2007, A-3 Amit Goyal made any presentation before the Screening Committee on behalf of A-1 CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 186 of 350 M/s KSSPL. It also could not be proved conclusively that A-3 Amit Goyal had any knowledge of the contents of the application Ex. PW 1/F (colly) (D-10) much less that he was aware that A-1 M/s KSSPL has made misrepresentation about its financial strength in the application.
265. On the contrary, it stands proved on record that A-3 Amit Goyal was though the statutory auditor of A-1 M/s KSSPL but was not an employee of the company. It is also not the case of prosecution that there was any falsity in the audited balance sheets of A-1 M/s KSSPL as were audited by A-3 Amit Goyal, though it is certainly a different matter that A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia did not file the said audited reports alongwith their application in order to support the false claims as were made in their application submitted to MOC seeking allocation of a captive coal block. However no other evidence be it direct or circumstantial has been led on record by the prosecution which could even remotely show that A- 3 Amit Goyal was in any manner a party to the conspiracy hatched by A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia to cheat MOC, Government of India so as to induce it to allocate a captive coal block in favour of A-1 M/s KSSPL.
266. Thus in view of the aforesaid facts and circumstances coupled with the nature of evidence led by prosecution as regard the role played by A-3 Amit Goyal, I am of the considered opinion that prosecution has miserably failed in proving its case against A-3 Amit Goyal beyond shadows of all reasonable doubts. The charge of CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 187 of 350 cheating i.e. u/s 420 IPC or that of criminal conspiracy i.e. u/s 120-B IPC as framed against him thus does not stands proved.
I accordingly giving benefit of doubt to A-3 Amit Goyal hereby acquit him of all the charges as framed against him in the present matter.
(II) Role of Ministry of Coal officers i.e. A-4 H.C. Gupta, A-5 K.S. Kropha and A-6 K.C. Samria
267. After having discussed the role played by the private parties involved i.e. A-1 M/s KSSPL, A-2 Pawan Kumar Ahluwalia and A-3 Amit Goyal in the entire coal block allocation process which led to allocation of Thesgora-B/Rudrapuri coal block in favour of A-1 M/s KSSPL, I shall be now discussing the role played by Ministry of Coal officers i.e. A-4 H.C. Gupta, A-5 K.S. Kropha and A-6 K.C. Samria in the said coal block allocation process.
268. In order to appreciate the role of officers of MOC either in their capacity as Secretary Coal, Joint Secretary Coal or Director CA-I Section, MOC or as Chairman and Member Convener of the Screening Committee, it will be important to first delineate the role which was played by them in the entire coal block allocation process. Thereafter the effect of all such acts of omission or commission which have been attributed to them by the prosecution in the entire coal block allocation process leading to allocation of Thesgora- B/Rudrapuri coal block to A-1 M/s KSSPL shall be seen.
269. Admittedly an advertisement inviting applications for allotment CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 188 of 350 of captive coal blocks reserved for power sector or other end users was issued by MOC after approval in this regard was given by Secretary, Ministry of Coal i.e. A-4 H.C. Gupta. The guidelines governing allocation of all such captive coal blocks were also approved and uploaded on the website of MOC with the approval of A-4 H.C. Gupta. The period during which the applications were to be received by MOC was also decided with the approval of Secretary Coal. The guidelines under the title "Where to apply" clearly provided all the details regarding the person to whom the applications in five copies were to be addressed or the place where the applications were to be submitted. The guidelines under the title "How to apply" further provided for all the details and necessary information regarding the documents which were required to be enclosed with the application. It was also provided therein that without the said enclosures the applications would be treated as incomplete and shall be rejected. Further the guidelines under the title "Guidelines for allocation of captive blocks and conditions of allotment through the screening committee" inter-alia mentioned various factors on the basis of which inter-se priority for allocation of a coal block among competing applicants for a captive block may be decided. It again provided the details of the documents which were to be annexed with the application beside stating that an applicant may file any other document, it may choose to submit. The guidelines under the title "Processing of application" specified the manner in which the applications received in MOC were to be dealt with by it.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 189 of 350 In fact the file on all the aforesaid occasions also passed through the desk of Joint Secretary, Coal, i.e. A-5 K.S. Kropha before A-4, H.C. Gupta as Secretary Coal accorded his approval to various matters mentioned above.
270. Though I shall be discussing the purpose of framing all such guidelines by MOC governing allocation of captive coal blocks at a slightly later stage of my judgment but at this stage it will be worthwhile to mention the various questions which this Court needs to answer while examining the role played by the accused MOC officers. The first and foremost question which needs to be answered is whether the aforesaid guidelines were binding upon both MOC and screening committee. If yes, whether the same were followed and if not then qua what aspects the same were not followed. The role and responsibility of A-4 H.C. Gupta, A-5 K.S. Kropha and A-6 K.C. Samria towards ensuring compliance with the said guidelines also needs to be thereafter examined. It also needs to be seen as to whether applications which were found to be incomplete in terms of the said guidelines were actually rejected or not or in other words whether incomplete applications were also to be considered by the screening committee instead of getting rejected at the initial stage itself in the MOC. The effect of non-compliance with the guidelines on the coal block allocation process will also be required to be seen.
271. Apart from the aforesaid questions other important issues which needs to be examined by this Court are, whether non- compliance with the guidelines to any extent by the accused MOC CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 190 of 350 officers were their conscious and intentional acts and also whether the same were in pursuance of any criminal conspiracy hatched by them with other co-accused persons or not.
272. In order to appreciate the aforesaid issues comprehensively, it will be appropriate to reproduce relevant portions of the guidelines once again over here. (The entire set of guidelines have though already been reproduced in the earlier part of the present judgment).
"How to apply?
I. Application in the prescribed format (five copies) should be filled up. Please note that separate application is to be submitted for each block in case application is made for more than one block. Similarly, separate application is to be submitted in case application is made for more than one end use plant. The details in the format should be filled up in respect of the specific end use plant for which application is made. The details of experience in respect of other plants may be provided in separate sheets.
(i) If the applicant is an end user, the details of the company alongwith the relevant details of the end use plant (for which block is being applied) are to be filled up at relevant places.
(ii) In case the applicant is a JV Mining company (consortium of end user companies) or an Independent Mining company (with firm back-to-back tie up with permitted end users) list of promoter companies or the list of companies with whom tie up for supply of coal has been finalized, quantities to be shared/supplied, and certified copies of agreement/contract etc. are to be provided. The details in respect of finances, end use plant and previous allocation of blocks i.e. SI. No. 8 to 25 and 28, 29 of the application for are to be provided in respect of all the companies with whom the supply agreement is executed. Such details may be provided on separate sheets, in the proforma as given in Form A, with suitable explanation. (Refer Form A) II The following documents should be enclosed along with the application form:
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 191 of 350 • Certificate of registration showing that the applicant is a company registered under Section-3 of the Indian Companies Act. This document should be duly signed and stamped by the Company Secretary of the Company. (1 copy) • Certified copy of the Memorandum and Articles of Association of the applicant Company. (5 copies.) • Audited Annual Accounts/reports of last 3 years.
(5 copies) • Project report in respect of the end use plant. If the project report is appraised by a lender, the appraisal report shall also be submitted. (5 copies) • Detailed Schedule of implementation for the proposed end use project and the proposed coal mining development project including Exploration programme (in respect of regionally explored blocks) in the form of Bar Charts. (5 copies) • Scheme of disposal of unuseables containing carbon obtained during mining of coal or at any stage thereafter including washing. This scheme must include the disposal/use to which the middlings, tailings, rejects etc from the washery are proposed to be put. (5 copies) • The above details are required to be submitted in respect of all the concerned companies in case of SPV/JV or Mining company.
• Demand draft of Rs. 10,000/- in favour of PAO, Ministry of Coal payable at New Delhi III Applications without the above accompaniments would be treated as incomplete and shall be rejected."
(Emphasis supplied by me)
273. As regard the procedure for processing the applications, the following guidelines were also put up on the website:
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 192 of 350 "PROCESSING OF APPLICATION The applications received in the Ministry of Coal in five copies, after being checked for eligibility and completeness, would be sent to the administrative Ministry/State Government concerned for their evaluation and recommendations. After receipt of recommendations of the administrative Ministry/State Government concerned, the Screening Committee would consider the applications and make its recommendations. Based on the recommendations of the Screening Committee, Ministry of Coal will determine the allotment."
(Emphasis supplied by me)
274. Further for ascertaining interse priority of various applicants for allocation of Coal Blocks for captive use, the following guidelines were uploaded on the website:
"9. Inter-se priority for allocation of a coal block among competing applicants for a captive block may be decided as per the following guidelines:
• Status (stage) level of progress and state of preparedness of the projects;
• net-worth of the applicant company (or in the case of a new SP/JV, the net-worth of their principles); • Production capacity as proposed in the application; • Maximum recoverable reserve as proposed in the application; • Date of commissioning of captive mine as proposed in the application;
• Date of completion of detailed exploration (in respect of unexplored blocks only) as proposed in the application; • Technical experience (in terms of existing capacities in coal/lignite mining and specified end use); • Recommendation of the Administrative Ministry concerned;
• Recommendation of the State Government concerned (i.e. where the captive block is located); • Track record and financial strength of the company .
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 193 of 350 Preference will be accorded to the power and the steel sectors. Within the power sector also, priority shall be accorded to projects with more than 500MW capacity. Similarly, in steel sector, priority shall be given to steel plants with more than 1 million tonne per annum capacity."
(Emphasis supplied by me)
275. It has been strenuously argued by Ld. Sr. Advocate Sh. Mohit Mathur for A-4 H.C. Gupta and Ld. Counsel Sh. B.S. Mathur for A-5 K.S. Kropha that as per "Central Secretariat Manual of Office Procedure", it was the sole responsibility of CA-I Section, MOC to ensure compliance with the said guidelines. It was submitted that admittedly no written note was ever put up by CA-I Section to any of the senior officers stating that the guidelines so issued by MOC could not be complied with. It was thus submitted that as no such note was put up by CA-I Section so there was no way in which Joint Secretary Coal, K.S. Kropha or Secretary Coal, H.C. Gupta could have known that the guidelines so issued regarding processing of applications received in MOC have not been complied with. It was further submitted that though PW-13 V.S. Rana stated in his deposition in Court that he had verbally informed the senior officers including A-4 H.C. Gupta and A-5 K.S. Kropha that the applications have not been checked for their completeness and eligibility due to shortage of manpower and lack of expertise on the part of officials of CA-I Section but he admittedly did not reproduce the said verbal information given by him in the files of MOC much less getting the same confirmed from the senior officers in accordance with the provisions of Manual of Office Procedure. His claim of having given CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 194 of 350 verbal information to senior officers was thus stated to be highly unbelievable and rather simply an attempt to cover up his acts of omission and commission. It was also submitted that Secretary Coal was though administrative head of the Ministry but in such a vast Ministry he was having 15 Sections working under him and thus he could not have been expected to look into the detailed working of each and every section. Similarly as regard Joint Secretary, Coal it was stated that he too was having work of various wings/sections under him and thus unless specific information is submitted to him by any given section about difficulties being faced by them in complying with the directions issued such as in complying with guidelines issued in the present case, there was no way in which the senior officers of MOC could have known that CA-I Section officials have not complied with the guidelines or that it was difficult for them to comply with the guidelines. It was also submitted that in the routine functioning of Govt. of India the senior officers such as Secretary, or Joint Secretary, in a Ministry works on the basis of trust and belief that the officers of every section under them must have performed their duties properly.
276. It was also submitted that whenever a request was put up by CA-I Section officials seeking services of additional staff from the office of Coal Controller or Coal India Ltd. (hereinafter referred to as "CIL"), the said request was immediately acceded to by the senior officers. It was thus submitted that had CA-1 Section officers/officials brought to their knowledge any such difficulty being faced by them in CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 195 of 350 complying with the guidelines then certainly additional staff would have been arranged for or other necessary steps would have been taken.
277. As regard applicability and requirement of complying with the provisions of Manual of Office Procedure, it was submitted that even the minutes of meetings of 36 th screening committee were recorded in accordance with Para 54 (4) (c) of the Manual of Office Procedure. As regard the allegation of prosecution that the minutes were silent as to the reasons for which A-1 M/s KSSPL was recommended for allocation of a coal block and as to why the name of M/s BLA Power Ltd. a company recommended by State Government of Madhya Pradesh was not recommended, it was submitted that as the decision of the screening committee was unanimous so only essence and outcome of the deliberations was recorded. It was thus submitted that the MOC officers/officials were bound to strictly follow the provisions of Manual of Office Procedure and in case of any deviance the concerned officer/official was required to record reasons for the same in accordance with para 30 of the Manual of Office Procedure titled "Deviation from Normal Procedures or Rules".
278. Similarly Ld. Counsel Sh. Percivel Billimoria for A-6 K.C. Samria also stated that A-6 K.C. Samria was never informed by anyone that the applications have not been checked for their eligibility and completeness. It was also submitted that in fact A-6 K.C. Samria was given additional charge of CA-I Section on 16.03.2007 only and by which date various copies of applications were already sent to CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 196 of 350 Administrative Ministries/State Governments concerned and to CMPDIL. It was further submitted that even from 16.03.2007 till May 2007 A-6 K.C. Samria was having charge of other sections also and he was finally posted to CA-I Section in the month of May 2007 only.
279. In fact the whole emphasis of all the three accused persons namely A-4 H.C. Gupta , A-5 K.S. Kropha and A-6 K.C. Samria, was that it was PW -13 V.S. Rana, Under Secretary, MOC and the officials of CA-I Section working under him who were primarily responsible for ensuring compliance with the guidelines issued by MOC. It was also pointed out that while sending copies of the applications to Administrative Ministries/State Governments or to CMPDIL the relevant file was never put up before the senior officers by PW-13 V.S. Rana even though for other innocuous matters such as procuring locks and trunks or for making transportation arrangements the file was put up to the level of Joint Secretary, Coal. It was thus asserted that unless the issue of non-compliance with the guidelines was brought to the notice of senior officers of MOC by PW-13 V.S. Rana or by the other officials of CA-I, Section there was no way that the accused MOC officers could have known that the guidelines governing allocation of coal blocks have not been complied with.
280. In the light of aforesaid nature of detailed submissions made by Ld. Counsels for the accused persons laying great emphasis on the applicability of the provisions of Manual of Office Procedure to the entire coal block allocation process adopted by MOC it becomes important for this Court to first see as to whether applications so CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 197 of 350 invited by MOC for allocation of captive coal blocks were even contemplated to be dealt with as per the provisions of Manual of Office Procedure or not. It also needs to be examined thereafter as to whether the subsequent processing of applications after they were received in MOC or other related issues thereof were dealt with as per the provisions of Manual of Office Procedure or not. It is only thereafter can it be seen and examined as to what extent the provisions thereof were not complied with or in what manner or under what circumstances.
(A) Whether the receiving of applications or their subsequent processing in MOC was contemplated to be dealt with under the Central Secretariat Manual of Office Procedure.
281. As regard the applicability of Central Secretariat Manual of Office Procedure to the routine working of a Ministry in Central Government it would be suffice to state that the Manual of Office Procedure certainly forms the back-bone of process management in the Central Secretariat. As mentioned in the introduction part of the manual in Chapter-I itself the very purpose of introducing such a manual by the Central Government is to attempt to balance the conflicting consideration of speed and priority.
282. In this regard it would be appropriate to first have a brief glance of the scheme of various chapters in which the Manual of Office Procedure has been divided and also the nature of issues which it intends to address.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 198 of 350 "Central Secretariat Manual of Office Procedure, Twelfth Edition, May 2003 The Manual has been divided into 18 chapters titled as follows:
CHAPTER I - Introduction
CHAPTER II - Definitions
CHAPTER III - Machinery of Government
CHAPTER IV - Dal-Receipt, Registration and
Distribution
CHAPTER V - Receipts-Submission and Diarisation
CHAPTER VI - Action on Receipts
CHAPTER VII - Handling of Receipts under Desk
Officer System
CHAPTER VIII - Forms and Procedure of
Communication
CHAPTER IX - Drafting of Communications
CHAPTER X - Issue of Drafts
CHAPTER XI - File Numbering System
CHAPTER XII - Records Management
CHAPTER XIII - Security of Official Information and
Documents
CHAPTER XIV - Checks on Delays
CHAPTER XV - Inspections
CHAPTER XVI - Office Automation
CHAPTER XVII - Electronically Supported Office
Procedure System
CHAPTER XVIII - Miscellaneous"
283. Thus from a bare perusal of the titles of various chapters, it is clear that Chapter-I provides for introduction and Chapter II provides definition of various terms used in the Manual. Chapter III mentions the machinery of government vide which the functions of government are discharged. Chapter IV to VII, primarily deals with Dak, its Receipt and the Processing thereof. Chapter VIII deals with Forms and Procedure of Communication and Chapter IX and X deals with Drafting of Communications and Issue of Drafts. Chapter XI to XVII primarily deals with maintenance of files and other records in the CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 199 of 350 office. Chapter XVIII provides for miscellaneous provisions.
284. From the aforesaid scheme of different chapters, it is thus clear that the Manual of Office Procedure besides dealing with issues relating to drafting of communications and issue of drafts, maintenance of files and other records primarily deals with Dak its Receipt and its processing thereof. In these circumstances, it will be thus important to briefly note the definition of the word "Dak" and "Receipt" as provided in Para 1 in Chapter II titled "DEFINITIONS"
1 (14) "Dak" includes every type of written communication such as letter, telegram, interdepartmental note, file, fax, e- mail, wireless message which is received, whether by post or otherwise, in any department for its consideration.
1 (47) "Receipt" means Dak after it has been received by the concerned section/officer.
285. Thus keeping in view the aforesaid definition of "Dak" it will be important to first analyze as to whether the applications so received by MOC seeking allotment of captive coal blocks in response to advertisement issued by it can be termed as "Dak" as defined under the "Manual of Office Procedure". In this regard it will be thus required to be seen as to whether the applications so received can be termed as "Written Communication" as contemplated under the "Manual of Office Procedure".
286. Chapter VIII of the "Manual of Office Procedure" provides for Forms and Procedures of Communication. Para 50 of the said Chapter provides for "Forms of Written Communications and CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 200 of 350 Methods of Delivery". The said list of written communications and their method of delivery as is generally used by a department talks of letter, Demi-official letter, office memorandum, inter-departmental note as forms of written communication and telegram, fax/telex, registered post/registered AD, speed post, office order, order, notification, resolution, press-communique/ note, endorsement, circular, advertisement and e-mail as methods of delivery of written communications. Para 51 further talks of telephonic communications. The remaining para(s) of Chapter VIII deals with communications between inter-department or intra-department etc. Apparently the applications so received in response to advertisement issued by MOC inviting applications for allotment of captive coal blocks can neither be termed as letter, Demi official letter, office memorandum, inter-departmental note etc. so as to term the said applications as written communication as contemplated either in Para 50 titled "Forms of Written Communications and Methods of Delivery" or as mentioned in the definition of "Dak" in para 1 (14) of the Manual of Office Procedure.
287. It is thus clear that applications so invited by MOC can not be termed as "Dak" as contemplated under the Manual of Office Procedure. In fact from various other circumstances also it is clear that even MOC itself never intended or even contemplated to consider or deal with such applications as "Dak" as per the provisions of Manual of Office Procedure and were never actually dealt with by it as such. Certainly it would have been an ideal situation if at least CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 201 of 350 the other subsequent proceedings carried out in MOC after receipt of applications would have been as per the provisions of Manual of Office Procedure. My subsequent discussion would however show that even senior officers of MOC also never dealt with all such matters strictly as per the provisions of Manual of Office Procedure. The provisions of the Manual of Office Procedure prescribing Procedure and Rules were observed more in breach.
288. Para 12 in Chapter IV titled "Dak, Receipt, Registration and Distribution" provides that during office hours the entire Dak of the department including those addressed to Ministers/officers by name, will be received in the central registry/Information and Facilitation Counters (IFC). Where however immediate/important dak addressed to Ministers/officers by name is sent through Special Messenger directly to the addressees themselves, it will be received by them or their personal staff. The chapter further provides for dak if received after office hours or through other mode of communications such as fax or e-mails etc.
289. Thus in these circumstances, it will be pertinent to mention that the guidelines governing allocation of coal blocks specifically provided the name of the officer to whom the applications were to be addressed and the place where the same were to be submitted. The said guidelines titled "Where to apply" read as under:
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 202 of 350 "Where to Apply?
The application, in five (5) copies, is to be addressed to Sh. Sanjiv Mittal, Director (CA-I) Ministry of Coal and to be submitted in:
Coal India Limited Office Scope Minar, 5th Floor, Laxmi Nagar District Centre Delhi 110092 between 10.30 AM and 4.00 PM on any working day.
The application should reach the Ministry of Coal latest by 12th of January, 2007."
(Emphasis supplied by me)
290. The files of MOC are however completely silent as to why the applications which were to be received only during office hours were not directed to be received in the Central Registry/IFC of MOC in accordance with para 12 of Manual of Office Procedure. Moreover it also can not be stated that the applications being so received over a period of about two (2) months were of such a nature as can be termed as immediate/important dak addressed to Ministers/officers as contemplated in Para 12 Chapter IV of the Manual of Office Procedure. Even otherwise the applications even if addressed to Sh. Sanjiv Mittal, Director (CA-I) were never received either by him personally or by his personal staff. Thus if the applications were to be dealt with under the Manual of Office Procedure much less considering them to be dak then either they ought to have been received in the Central Registry/IFC or if any deviance from the provisions of Manual of Office Procedure was intended then reasons for deviance ought to have been recorded as per para 30 of Manual CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 203 of 350 of Office Procedure.
291. Ld. Counsel for A-4 H.C. Gupta and A-5 K.S. Kropha all through the trial and especially while cross-examining PW-13 V.S. Rana, Under Secretary, MOC placed strong reliance on the provisions of para 30 titled "Deviation from normal procedures or rules" to emphasise that in case of any deviance from the provisions of Manual of Office Procedure the authority concern was supposed to record reasons for the same in writing.
Para 30 of Manual of Office Procedure read as under:
"Deviation from normal procedures or rules - In every case where a major or minor infraction, other than trivial, of the existing procedures or rules, is sought to be made, it shall be the responsibility of the decision making authority to ensure that reasons are recorded in writing, justifying such a deviation from the rules or procedures."
292. Clearly as per para 12 of the Manual of Office Procedure the entire dak was to be received during office hours in the Central registry/IFC. Thus even if it is presumed for the sake of arguments that the applications so invited by MOC were considered as dak to be dealt with as per the provisions of Manual of Office Procedure then as already mentioned if A-4 H.C. Gupta being Secretary Coal approved the guidelines titled "Where to apply" specifying the place where applications being so invited were to be received and the said place was undisputedly not the Central Registry/IFC of MOC so the same clearly amounted to a major deviation from the provisions of Manual of Office Procedure. In these circumstances as per the provisions of Para 30 as reproduced above, A-4 H.C. Gupta while approving the CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 204 of 350 guidelines titled "Where to apply" ought to have either recorded the reasons himself or ought to have ensured that reasons are recorded in writing justifying deviation from the provisions of Manual of Office Procedure. In fact file for getting the guidelines approved was also routed through the desk of A-5 K.S. Kropha, Joint Secretary, Coal. He was also thus duty bound to follow the mandate of para 30 of the Manual of Office Procedure.
293. Moreover, in the overall facts and circumstances of the case, it can not be even remotely presumed that A-4 H.C. Gupta or A-5 K.S. Kropha who were senior Government servants were ignorant of the provisions of Manual of Office Procedure. It is also not the case of accused persons that they forgot to record reasons or to ensure that reasons are recorded for any such major deviance from the provisions of Manual of Office Procedure. In fact in the cross- examination of PW-13 V.S. Rana it was put to him that qua 34th Screening Committee applications were first received in the room of Joint Secretary, Coal and not in CA-I, Section. He stated the said fact to be correct. This fact again goes to suggest that even when applications were to be received in Shastri Bhawan office of MOC then also they were not received in the Central Registry/IFC suggesting thereby that procedure as prescribed in the Manual of Office Procedure was never intended to be followed. As already mentioned there is no noting or office order in the files of MOC providing reasons as to why the procedure given in the Manual of Office Procedure be it qua major or minor infraction is not being CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 205 of 350 followed.
294. The only irresistible conclusion which thus arises from the overall facts and circumstances of the case is that the applications being so invited by MOC were never contemplated as "Dak" to be dealt with under the provisions of Manual of Office Procedure. In fact my later discussion would show that even the subsequent proceedings thereof were also never carried out strictly as per the provisions of Manual of Office Procedure. At this stage I may also mention that a perusal of the files of MOC rather shows that the provisions of Manual of Office Procedure were never strictly adhered to even qua such issues which could and ought to have been dealt with as per the provisions of Manual of Office Procedure.
295. PW-13 V.S. Rana, Under Secretary, MOC when in his cross- examination was confronted with various provisions of Manual of Office Procedure, also stated that in the routine course of functioning all provisions of the Manual of Office Procedure are not followed at all times. It was however emphatically put on behalf of A-4 H.C. Gupta and A-5 K.S. Kropha that the provisions of Manual of Office Procedure were mandatorily to be followed. In fact A-4 H.C. Gupta also examined himself as a defence witness u/s 315 Cr.PC as DW-12 and in his examination-in-chief even stated that if the provisions of Manual of Office Procedure are not followed then the officer concerned becomes liable for action. I shall be however highlighting various other instances also where apparently the provisions of Manual of Office Procedure were not followed even by the accused CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 206 of 350 MOC officers even subsequent to receiving the applications as above and the files of MOC are completely silent as to the reasons for not complying with the provisions thereof.
296. In fact as will be evident from my subsequent discussion, it would not be a wrong statement if it is said that the entire working of MOC with relation to allocation of captive coal blocks was completely adhoc and casual in nature. There are various acts of omission and commission on the part of A-4 H.C. Gupta, A-5 K.S. Kropha and A-6 K.C. Samria which clearly supports the said conclusion. Though at a later stage of the present judgment, I shall be also demonstrating that not only all such acts of omission and commission committed by the accused MOC officers were conscious and deliberate but can be clearly attributed to their attitude of "WHO CARES". In fact they acted as if they were completely oblivious to the likely and probable consequences of their acts despite knowing that the matter being handled by them was of utmost importance for the industrial development of the country.
297. Admittedly guidelines were issued by MOC as regard the manner in which the applications were to be dealt with or the place where they shall be received or how they shall be processed. The said guidelines were issued and uploaded on the website of MOC not only to inform the public at large as to in what manner the applications are to be submitted or what documents were required to be annexed with the application and how the applications will be dealt with in MOC but it also regulated the exercise of discretion regarding CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 207 of 350 the procedure to be followed in allocation of captive coal blocks by MOC and the Screening Committee. I may however mention that even the procedure mandated by the said guidelines was also not followed in processing of the applications much less the provisions of Manual of Office Procedure. The intention of MOC officers in not dealing with the applications as per the provisions of Manual of Office Procedure is however also writ large on the face of record from the manner in which the minutes of various meetings of 36 th screening committee have been recorded. Though I shall be dealing with the larger issue of contents of the minutes of 36th Screening Committee meetings at a later stage but it will be worthwhile to mention over here that admittedly no minutes of the first four (4) Screening Committee meetings held on 07.12.2007, 08.12.2007, 07.02.2008 and 08/02.2008 were separately recorded much less immediately after the said meetings were concluded. Admittedly common minutes of all the five meetings of 36 th screening committee i.e. meetings held on 07/08.12.2007 and 07/08.02.2008 and 03.07.2008 were recorded after the final meeting was concluded on 03.07.2008. However as per Para 54 (4) (c) of Manual of Office Procedure, a record of discussion of inter-departmental meetings ought to have been prepared immediately after the meeting and circulated to the other departments concerned setting out the conclusions reached and indicating the department or departments responsible for taking further action on each conclusion.
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298. At this stage it will be worthwhile to reproduce para 54 (4) of Manual of Office Procedure. The same read as under:
54. Inter-departmental consultation -
(1) Inter-departmental consultation may take the form of inter-departmental notes, inter-departmental meetings or oral discussions.
(2) In making written inter-departmental references, the following points should be observed:
(a) . . . .
(b) . . . .
(c) . . . .
(d) . . . .
(i) . . . .
(ii) . . . .
(3) (a) . . . .
(i) . . . .
(ii) . . . .
(b) . . . .
(c) . . . .
(4) Inter-departmental meetings may be held where it is necessary to elicit the opinion of other departments on important cases and arrive at a decision within a limited time. No such meeting will normally be convened except under the orders of an officer not below the level of Joint Secretary. In respect of such meetings, it will be ensured that:
(a) the representatives attending the meeting are officers who can take decisions on behalf of their departments;
(b) an agenda setting up clearly the points for discussion is prepared and sent alongwith the proposal for holding the meeting, allowing adequate time for the representatives of other departments to prepare themselves for the meeting; and
(c) a record of discussions is prepared immediately after the meeting and circulated to the other departments concerned, setting out the conclusions reached and indicating the department or departments responsible for CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 209 of 350 taking further action on each conclusion.
(5) . . . .
(a) . . . .
(b) . . . .
(c) . . . .
(d) . . . .
. . . .
(6) . . . .
(7) . . . .
(8) . . . ."
(Emphasis supplied by me)
299. In fact Ld. Counsels for accused persons have argued that the minutes have been recorded as per Para 54 (4) (c) of the Manual of Office Procedure. Both DW-11 K.S. Kropha and DW-12 H.C. Gupta stated in their examination-in-chief that the minutes of 36 th Screening Committee meetings were prepared in accordance with Para 54 (4)
(c) of Central Secretariat Manual of Office Procedure. However no explanation worth the name has been put forward by them as to why the provisions of Para 54 (4) (c) were not followed by recording the minutes of meetings held on 07.12.2007, 08.12.2007, 07.02.2008 and 08.02.2008 immediately after the respective meetings were over. This fact again goes to suggest that Ministry of Coal never dealt with the applications so received for allotment of captive coal blocks strictly as per the provisions of Manual of Office Procedure. If it is presumed otherwise, then as mentioned above there is no explanation or reasons recorded in the files of MOC as to why the provisions of Manual of Office Procedure regarding immediate preparation of record of discussion of each inter-departmental CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 210 of 350 meeting was not adhered to. In fact in the meeting held on 08.02.2008 a decision was admittedly taken to seek information from CMPDIL whose representative was also a member of screening committee to furnish information about the available geological reserves or the extractable reserves in the various coal blocks kept for allocation. Thus as per Para 54 (4) (c), the record of discussions to be prepared immediately after the meeting was to also mention about the conclusions reached and indicating the department or departments responsible for taking further action on each conclusion.
300. In view of my aforesaid discussion, I am thus of the considered opinion that though one may say that the applications so invited by MOC for allotment of captive coal blocks ought to have been dealt as per the provisions of Manual of Office Procedure but neither the applications were actually contemplated to be dealt with under the provisions of Manual of Office Procedure nor their subsequent processing was ever undertaken strictly as per the Manual of Office Procedure. In fact my subsequent discussion will further substantiate the aforesaid conclusion that neither the receipt nor processing of applications was dealt with by MOC as per the provisions of Manual of Office Procedure.
(B) Whether the guidelines issued by MOC were binding and were mandatorily to be followed by MOC officers and by the Screening Committee.
301. In 1993 when the Coal Mines (Nationalisation) Act, 1973 was amended so as to provide for allocation of captive coal blocks to CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 211 of 350 companies in private sector also who were engaged in specified end uses, an inter-departmental body called the "Screening Committee" was constituted in MOC to screen all such proposals as may be received in MOC seeking allocation of captive coal blocks. Beside MOC which was the Nodal Ministry, various other Administrative Ministries such as Ministry of Steel, Power or Department of Industrial Promotion and Policy beside various State Governments where coal blocks which were proposed to be allocated were situated or the states where the proposed end use project was to be situated were members of Screening Committee. Central Mine Planning & Design Institute Limited, (CMPDIL), Coal India Ltd. (CIL) and its other subsidiary companies were also part of the Screening Committee. The purpose was to have views of all concern at one single platform so as to not only expedite the coal block allocation process but to also have a body which may screen the proposals in an objective and transparent manner. Thus the various Screening Committees started laying down its own procedures to screen the proposals and to make its recommendations in an objective and transparent manner.
302. Though initially no advertisement used to be issued by MOC for inviting applications for allocation of captive coal blocks but the 34th Screening Committee issued on advertisement in the year 2005 inviting applications for allocation of captive coal blocks. The past practice and procedure as used to be followed by the earlier Screening Committees were also compiled at one place and with suitable additions/modifications, guidelines were issued to govern the CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 212 of 350 coal block allocation process. Similarly at the time of 35 th and 36th Screening Committee also applications were invited by way of an advertisement. After making suitable modifications in the earlier guidelines issued and beside incorporating the recommendations of 7th Energy Co-ordination Committee headed by Prime Minister and as were communicated to MOC vide office Memorandum Ex. PW 13/H (colly) (D-2) fresh guidelines governing allocation of captive coal blocks were issued by MOC.
303. Thus in the aforesaid facts and circumstances it is clear that these guidelines were issued by MOC not only to control and regulate the discretion to be exercised by MOC officers in the coal block allocation process but also that of the Screening Committee. The guidelines purportedly provided the mechanism to implement the provisions of Mine and Minerals Act, 1957 and that of Coal Mines (Nationalisation) Act, 1973 as it stood amended in 1993. (However Hon'ble Supreme Court has observed in its order dated 25.08.2014 passed in Manohar Lal Sharma case (Supra) that the procedure adopted by MOC or the Screening Committee was in contravention of the provisions of Mine and Minerals Act, 1957 that it does not find support even from CMN Act, 1973. Hon'ble Supreme Court however proceeded to consider and examine the actions of MOC and that of Screening Committee assuming that Central Government had powers to allot coal blocks under Mine and Minerals Act, 1957 and CMN Act, 1973). Similarly in the case in hand also the task before this Court is to examine the various acts of omission and commission CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 213 of 350 of accused MOC officers as were undertaken by them in the coal block allocation process which led to allocation of Thesgora- B/Rudrapuri coal block in favour of A-1 M/s KSSPL. The said exercise is thus being undertaken assuming that Central Government had powers to allocate the various coal blocks. In other words what is required to be seen is whether the rules/regulations or procedure as were devised by Ministry of Coal for allocating captive coal blocks were adhered to by the accused MOC officers or not. If not, than reasons thereof and their intention in not doing so.
304. Thus from my aforesaid discussion, it is clear that the guidelines so framed and issued by MOC itself were having binding force. In fact it is not even the case of any of the accused persons that the guidelines were not having any binding force. It was rather argued by Ld. Counsels for the accused persons that the guidelines were duly followed by the Screening Committee even for ascertaining the inter-se priority of the applicant companies. As earlier mentioned guidelines governing allocation of captive coal blocks were issued not only to inform the public about the process which shall be adopted by MOC in allocating various captive coal blocks to different applicant companies but the guidelines also regulated the exercise of discretion by MOC officers and by the Screening Committee in the coal block allocation process.
305. Thus it is clear that the guidelines as were issued by MOC as part of advertisement Ex. PW 13/F (colly) (D-2) were having binding force and were mandatorily to be followed both by MOC and the CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 214 of 350 Screening Committee.
(C) Whether the applications received in MOC were checked for eligibility and completeness in accordance with the guidelines issued by MOC governing allocation of captive coal blocks.
306. After having discussed that the applications so received in MOC were never dealt with strictly as per the provisions of Manual of Office Procedure, it needs to be seen now as to in what manner the applications were actually dealt with by MOC.
307. PW-13 V.S. Rana, Under Secretary, MOC specifically stated that the applications so received were never checked in MOC for their completeness and eligibility at any point of time much less before sending copies thereof to Administrative Ministries/State Governments or to CMPDIL. This fact has even been not disputed by the accused persons. It is also an undisputed fact that as per the guidelines titled "Processing of Application", the applications received in the Ministry of Coal in five copies after being checked for eligibility and completeness were to be sent to the Administrative Ministries/State Government concerned for their evaluation and recommendations.
308. The three accused MOC officers i.e. A-4 H.C. Gupta, A-5 K.S. Kropha and A-6 K.C. Samria, however stated that during the course of investigation of present coal block allocation matters and more specifically during the trial of present case only they came to know that the applications so received in MOC were not checked by CA-I, CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 215 of 350 Section, MOC before copies thereof were sent to Administrative Ministries/State Governments concerned or to CMPDIL. They however took a consistent stand during the entire trial that it was the responsibility of officials of CA-I Section only to comply with the said guidelines. It was also stated by them that at no point of time CA-I Section officials brought to their notice that the guidelines qua checking of applications for completeness or eligibility have not been complied with. It was submitted that in none of the files of MOC any written note was ever made by CA-I Section officials which could show that the senior officers were informed about non-compliance of guidelines as above. It was thus submitted that there was no other way in which the accused persons i.e. the senior officers of MOC could have known that the guidelines have not been complied with in MOC.
309. Though I shall be dealing with the aforesaid issues at length at a slightly later stage of the present judgment but the fact remains that the applications so received in MOC were never checked for their completeness and eligibility at any point of time much less before sending copies of the applications to Administrative Ministries/State Governments concerned or to CMPDIL.
310. As regard the role of Screening Committee in complying with the guidelines so issued, it would be suffice to state at this stage that the minutes of 36th Screening Committee does not show that the Screening Committee followed the guidelines qua ascertaining the interse priority of the competing applicants. However I shall be CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 216 of 350 discussing the said issue at length at a slightly later stage of the present judgment.
311. Thus from my aforesaid discussion, it stands well proved on record that the guidelines issued by MOC qua checking of applications for their completeness and eligibility were not complied with at any point of time during the entire coal block allocation process much less before sending them to Administrative Ministries/State Governments concerned.
(D) Whether A-4 H.C. Gupta, A-5 K.S. Kropha and A-6 K.C. Samria were aware that applications have not been checked for completeness and eligibility in terms of the guidelines.
312. As already mentioned A-4 H.C. Gupta, Secretary Coal, A-5 K.S. Kropha, Joint Secretary Coal and A-6 K.C. Samria, Director, CA- I Section, MOC all through the entire trial and also at the stage of final arguments claimed that at no point of time they were informed by PW-13 V.S. Rana or by other officials of CA-I Section that the applications have not been checked for their eligibility and completeness. It was submitted that no note was put in any of the MOC files by CA-I Section officials which could show that the factum of applications having been not checked for their completeness and eligibility was brought to the notice of senior officers at any point of time. It was also submitted that though PW-13 V.S. Rana, Under Secretary, CA-I Section, MOC stated that he had informed verbally to both A-4 H.C. Gupta and A-5 K.S. Kropha that checking of applications has not been carried out but the same was clearly found CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 217 of 350 to be an improvement made by him over his earlier statement u/s 161 Cr.PC made to IO and that too in order to escape away from his own liability. While relying upon the provisions of Manual of Office Procedure, it was asserted that in case any such verbal information was given by PW-13 V.S. Rana, then he ought to have recorded the same in the files at least at some later point of time and got the same confirmed from the senior officers. It was thus submitted that as no such note regarding verbal information having been given to senior officers was ever recorded in the files of MOC so not only PW-13 V.S. Rana is now introducing a new case but is in fact making an effort to save his own skin since being Under Secretary, CA-I Section, it was his responsibility to ensure that the guidelines issued by MOC are duly complied with. It was also submitted that admittedly copies of the applications were sent to concerned State Governments and to Administrative Ministries under the signatures of PW-13 V.S. Rana himself and at that time the file was not put up before the senior officers seeking their approval even though for other innocuous matters such as procuring locks or trunks or for making transportation arrangements for sending the applications to different entities as above, the file was put up to the senior officers. A-6 K.C. Samria even stated that he was given the additional charge of CA-I, Section only on 16.03.2007 and by that time copies of applications were already sent to Administrative Ministries/State Governments or to CMPDIL.
313. In this regard, I may mention at the thresh-hold itself that from the manner in which the applications have been dealt with in MOC, it CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 218 of 350 is clearly apparent that the work of Ministry of Coal as regard allocation of captive coal blocks has been completely arbitrary and adhoc in nature. Rules, regulations or procedures seems to have been given a complete go by. As shall be evident from my subsequent discussion, the accused MOC officers seems to have worked in the most casual and arbitrary manner despite the fact that they were senior officers of the rank of Secretary, Government of India, Joint Secretary and Deputy Secretary and were dealing with the allocation of important Nationalised natural resources of the country i.e. coal. The fact that the then Prime Minister of the country Dr. Manmohan Singh thought it appropriate to retain the charge of Ministry of Coal with himself only, clearly shows as to how important the work of said Ministry was. The fact that 7 th Energy Co-ordination Committee headed by Prime Minister with a view to give energy and infrastructure matters in the country a push, directed MOC to expedite allocation of captive coal blocks again shows the important and crucial nature of work which was to be discharged by MOC for the overall infrastructural development of the country.
314. In this regard even the observations of Hon'ble Supreme Court as made in its order dated 25.08.2014 in the case Manohar Lal Sharma case (Supra) in Para 1 would be worth referring to.
Para 1 of the said order dated 25.08.2014 read as under:
"1. Coal is king and paramount Lord of industry is an old saying in the industrial world. Industrial greatness has been built up on coal by many countries. In India, coal is the most important indigenous energy resource and remains the dominant fuel for power generation and many industrial applications. A number of CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 219 of 350 major industrial sectors including iron and steel production depend on coal as a source of energy. The cement industry is also a major coal user. Coal's potential as a feedstock for producing liquid transport fuels is huge in India. Coal can help significant economic growth. India's energy future and prosperity are integrally dependant upon mining and using its most abundant, affordable and dependant energy supply - which is coal. Coal is extremely important element in the industrial life of developing India. In power, iron and steel, coal is used as an input and in cement, coal is used both as fuel and an input. It is no exaggeration that coal is regarded by many as the black diamond."
315. The manner in which the applications have been either processed in MOC or have been subsequently dealt with by the Screening Committee which was headed again by Secretary, Coal, A- 4 H.C. Gupta as Chairman with A-5, K.S. Kropha, Joint Secretary, Coal as its member Convener in fact speaks volume about the arbitrary exercise of powers/discretion by the Government officers involved without even caring slightly for the rules/regulations or procedure to be followed. All through the entire trial while placing reliance upon various provisions of Manual of Office Procedure, it was the constant and consistent effort of all three officers of MOC arrayed as accused that the junior officers/officials in MOC did not work as per the provisions of Manual of Office Procedure. It was also submitted that it was the sole responsibility of officers/officials of CA-I Section, MOC only to ensure due compliance with the guidelines issued by MOC. The effort was also made to show that till the time matters were not brought to the notice of senior officers they could not have known about the nitty-gritty of the procedure undertaken by CA-I Section in dealing with the applications so received.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 220 of 350
316. Though I have already demonstrated that MOC neither contemplated to deal with the applications so received in accordance with the provisions of Manual Of Office Procedure nor it so dealt with them but even otherwise if the said Manual of Office Procedure is presumed to be held applicable then also the senior officers themselves did not care to adhere to the said provisions. Non- compliance with provisions of para 54 (4) (c) of Manual of Office Procedure regarding recording of minutes of inter-departmental meetings immediately after the meeting is over has already been discussed at length. The contention that as per Manual of Office Procedure reasons for non-compliance with the provisions thereof were to be recorded by the officers concerned as per para 30 titled "Deviation from Normal Procedure or Rules" has also been dealt with. It was also argued by the accused MOC officers that the decision making authority who deviates from the existing procedure or rules is responsible to record reasons justifying for any such deviation from the rules or procedures. However neither A-4 H.C. Gupta nor A-5 K.S. Kropha or even A-6 K.C. Samria cared to record any reasons in the files as to why para 54 (4) (c) of Manual of Office Procedure was not complied with qua recording the minutes of the Screening Committee meetings held on 07.12.2007, 08.12.2007, 07.02.2008 and 08.02.2008 immediately after the meetings were over. Similarly no reasons were recorded as to why the applications were not directed to be received in Central Registry/IFC, MOC.
317. However I shall be further discussing now from the records of CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 221 of 350 the present case itself i.e. from the files of MOC only that the three accused senior officers of MOC i.e. A-4 H.C. Gupta, A-5 K.S. Kropha and A-6 K.C. Samria did not follow the provisions of Manual of Office Procedure on other aspects also. The files of MOC not only show that all the three officers were well aware of the manner in which the applications were dealt with in MOC but also that they were conscious of the need to carry out scrutiny of the applications in accordance with the guidelines so issued but they chose to ignore the same for reasons best known to them. Various notings in the files of MOC were referred to extensively by Ld. Counsels for A-4 H.C. Gupta, A-5 K.S. Kropha and A-6 K.C. Samria to show that only such facts came to their knowledge as were put in writing by the officers of CA-I, Section. It was asserted by both A-4 H.C. Gupta and A-5 K.S. Kropha that as they were looking after the work of a number of wings and sections in the Ministry so they could not be expected to look into the detailed working of each section or wing of the Ministry.
318. However in order to show that all the three accused persons i.e. A-4 H.C. Gupta, A-5 K.S. Kropha and A-6 K.C. Samria were well aware of the fact that before sending copies of applications to Administrative Ministries/State Governments concerned, the applications have not been checked for their eligibility and completeness in MOC, it would be apt to refer to the minutes of a meeting held on 11.05.2007 in MOC under the chairmanship of Secretary Coal, i.e. A-4 H.C. Gupta. Both A-5 K.S. Kropha and A-6 K.C. Samria were also present in the said meeting.
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319. The files of MOC show that a meeting with representatives of Nodal Administrative Ministries represented in the Screening Committee and with representatives of various other organizations such as CMPDIL, CIL etc who were also members of Screening Committee was held in MOC on 11.05.2007. The said meeting took place even prior to considering the applications so received either for allocation of coal blocks reserved for power sector or for blocks reserved for other end users by 35th or 36th Screening Committee. The minutes of the said meeting held under the Chairmanship of A-4 H.C. Gupta, Secretary, Coal clearly demonstrates that all the three accused persons i.e. A-4 H.C. Gupta, A-5 K.S. Kropha and A-6 K.C. Samria were aware of the action taken so far on the applications beside other details of the applications. The said minutes were put to PW-13 V.S. Rana by Ld. Counsel for A-4 H.C. Gupta and A-5 K.S. Kropha in his cross-examination only and the said minutes accordingly stands proved and exhibited as Ex. PW 13/DX-16 (colly) [In file Ex. PW 1/H-1 (Colly) (D-9)]. The said meeting was attended by representatives of Nodal Ministries i.e. Ministry of Power, Ministry of Steel, DIPP and by the representatives of CIL, Coal Controller Organization and CMPDIL. The officers of MOC namely A-5 K.S. Kropha and A-6 K.C. Samria were also present alongwith Sh. P.R. Mandal, Advisor (P), MOC.
320. Before I advert on to discuss the contents of the said minutes, it will be worthwhile to reproduce the said minutes alongwith attendance sheet thereof of the officers who attended the said CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 223 of 350 meeting:
"Minutes of Meeting held under the chairmanship of Secretary (Coal) with the representatives of Nodal Ministries represented in the Screening Committee, representatives of CIL, Coal Controller's Organisation and CMPDIL.
A meeting was convened on 11th May 2007 at 10:30 AM in the office chamber of Secretary (Coal) with the representatives of Nodal Administrative Ministries represented in the Screening Committee, representatives of CIL, Coal Controller's Organization and CMPDIL to discuss the modalities for scrutiny and evaluation of applications received for allocation of 38 coal blocks for captive use. List of participants is attached as Annexure.
Opening the discussion, Secretary (coal) gave brief account of the process followed, the guidelines notified for allocation of captive coal blocks in this round, details of applications received, and action taken so far on the applications. He pointed out that as against 740 applications received during the last round of allocation of captive blocks, the number of applications received for 38 blocks this time is 1,422, which is almost double the applications received on the last occasion. The representative of CMPDIL informed that in terms of applicant companies, the number would be around 344. Going by the past experience, the exercise is anticipated to be far more cumbersome in case personal audience is given to each applicant. Also, in order to determine the most eligible applicant, it needs to be considered whether a set of more specific bench mark criteria, in conformity with the broad parameters indicated in the guidelines, could be evolved against which the eligibility of applicants could be measured based on information furnished in the application forms. He also sought the views of the members on whether based on such criteria, non serious applicants could be filtered in the first round of scrutiny, leaving only the more serious contenders who only could be called for personal hearing. This would ensure more objective and critical evaluation of the competing applicants. The conventional way of calling each applicant would be extremely time consuming and it may take a long time for the Screening Committee to complete the exercise and make its recommendation.
The Advisor, Ministry of Power stated that they had CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 224 of 350 already suggested broad guidelines for evaluation of applications based on which scrutiny can be made. Secretary(coal) observed that it would not serve the purpose as the parameters suggested are of very general nature and not very specific, against which the applicants could be evaluated.
The Joint Secretary, Department of Industrial Policy and Promotion, Ministry of Steel suggested that parameters such as minimum capacity of end use plant, minimum net-worth, preparedness of the project etc. could be considered as criteria for initial scrutiny and short-listing. The Director, Ministry of Steel also endorsed this suggestion.
Some of the members expressed concern that the action of the Screening Committee in eliminating some applicants based on net-worth criteria alone may be challenged in Courts on the ground that it could be only one of the factors and not the sole factor to be taken into account while determining the eligibility of the applicants. Such elimination may, therefore, be challenged on the ground of equality of opportunity.
After detailed deliberations, it was agreed that the respective Administrative Ministries would examine this issue further and suggest some criteria based on specific parameters to determine the inter-se priority amongst the applicants from the respective sectors i.e. power, iron & steel and cement. This may be furnished to the Ministry of Coal on priority. Thereafter, if necessary, another meeting would be convened to discuss the matter further. In the meantime, CMPDIL will carry out an exercise to identify the applicant companies that have minimum net-worth of 20% of the investment required for projected capacities of end use plants."
(Emphasis supplied by me) "List of participants in the Screening Committee meeting held on 11th May 2007 at 10:30 AM in the office Chamber of Secretary (Coal).
Ministry of Coal
(i) Sh. H.C. Gupta, Secretary
(ii) Sh.K.S. Kropha, Joint Secretary, Ministry of Coal.
(iii) Sh. P.R. Mandal, Advisor (P).
(iv) Sh.K.C. Samria, Deputy Secretary, Ministry of Coal. Ministry of Steel
(i) Sh. N.R. Dash, Director Coal India Limited CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 225 of 350
(i) Sh. N.C. Jha, Director (Tech.).
Coal Controller Organization
(i) Sh. An. Saha, Coal Controller.
(ii) Sh. A.Panda, Director.
Coal mine Planning and Design Institute.
(i) Sh.S.Chaudhuri,
(ii) Sh. A.K. Wahi, GM, ES, CMPDIL."
321. It will be also worthwhile to mention at this stage that in the same file at page No. 105-106 the draft minutes of the said meeting are available in which certain corrections have been made by hand. The said draft minutes were put to DW-12 H.C. Gupta (When he examined himself in his defence u/s 315 Cr.PC) by Ld. Sr. P.P. Sh. V.K. Sharma in his cross-examination and he stated that the said draft minutes carries corrections in the hand of A-5 K.S. Kropha. In fact an endorsement dated 30.05.2007 in the hand of A-5 K.S. Kropha at note sheet page 23 in file Ex. PW 1/H (colly) (D-2) also supports the aforesaid fact. The said draft minutes as above are available in file Ex. PW 1/H-1 (colly) (D-9) and have been exhibited as Ex. DW 12/PX-7.
322. However from a bare perusal of the minutes Ex. PW-13/DX- 16 (colly) of the meeting held on 11.05.2007, it is clearly evident that Secretary Coal, i.e. A-4 H.C. Gupta while opening the discussion not only gave brief account of the process followed and the guidelines notified for allocation of captive coal blocks in this round, but also stated about details of applications received, and action taken so far on the applications. He also pointed out that as against 740 applications received during the last round of allocation of captive CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 226 of 350 blocks the number of applications received for 38 blocks, this time was 1422 i.e. double the number of applications received on the last occasion. The minutes however further talks of the discussion held amongst the members about the procedure or modalities to be adopted so as to determine the most eligible applicant. The issue of laying down specific benchmark criteria in conformity with the broad parameters indicated in the guidelines was also discussed. The need to have an objective and critical evaluation of the competing applicants was also stressed upon. The meeting however finally concluded with the decision that the respective Administrative Ministries would examine and suggest some criteria based on specific parameters to determine the inter-se priority of the various applicant companies. At the end of the minutes it is also mentioned that in the meantime, CMPDIL will carry out an exercise to identify the applicant companies that have minimum net-worth of 20% of the investment required for projected capacities of end use plants. In this regard it will be also worthwhile to have a glance over the last paragraph of the draft minutes of the said meeting which have also been proved on record as Ex. DW 12/PX-7 [available at page 105- 106 in file Ex. PW 1/H-1 (colly) (D-9)]. The last para of draft minutes Ex. DW 12/PX-7 read as under:
"It was further suggested by Secretary (Coal) that 20% of the investment required for projected capacities of end-use plants may be accepted as a bench mark criteria for first round of scrutiny. However, at the end it was decided that nodal Ministries to come forward with their suggestion in this regard in respect of applications concerning their sector."
(Emphasis supplied by me) CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 227 of 350
323. I shall be reverting back to the said draft minutes again at a later stage of my present judgment while further discussing the manner in which applications were dealt with either by Screening Committee or in MOC.
324. However the purpose of reproducing and referring to the minutes of meeting held on 11.05.2007 Ex. PW 13/DX-16 (colly) at this stage is only to show the falsity in the claim made by the accused MOC officers that at no point of time the facts regarding total number of applications received in MOC or the manner of their processing or the details of the applications or the action taken so far on the applications were brought to their knowledge by CA-I, Section officers/officials. In fact in the note sheet pages of the files of MOC I have been unable to find any noting where the total number of applications so received or the manner in which they were processed or any other details of the applications were specifically mentioned at least till the date of aforesaid meeting i.e. till 11.05.2007. Even in the cross-examination of PW-13 V.S. Rana in response to a question put to him, he stated that no note was put up by CA-I, Section as to how many applications in all were received either for power sector or for non-power sector coal blocks. Thus in these circumstances when the minutes of aforesaid meeting held on 11.05.2007 Ex. PW 13/DX-16 (colly) have been relied upon by the accused MOC officers themselves then it was for them to explain only as to in what manner they came to know about the total number of applications so received or the action taken so far on the applications. The minutes says that CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 228 of 350 Secretary Coal also gave a brief account of details of applications received. The onus in this regard thus again remained on A-4 H.C. Gupta only as to what details of the applications were to his knowledge which were shared by him with the other members of the Screening Committee present in the said meeting. Moreover as per the attendance sheet of the officers who attended the said meeting, all the three accused persons i.e. A-4 H.C. Gupta, A-5 K.S. Kropha and A-6 K.C. Samria were present from MOC beside Sh. P.R. Mandal, Advisor (P). The role of Sh. P.R. Mandal, Advisor (P) in the entire coal block allocation process has neither been asserted to by the prosecution nor the accused persons have ascribed any role or any knowledge of the process to him. Moreover the presence of PW- 13 V.S. Rana or any other officer of CA-I Section in the meeting can not be presumed as the attendance sheet is silent in this regard. Had it been so the attendance of such other officers of MOC would have been there in the attendance sheet in the same manner in which it was there in the attendance sheets of various meetings of 36th Screening Committee even though A-6 K.C. Samria and PW-13 V.S. Rana were admittedly not members thereof. Even otherwise, if the presence of said officers/officials of CA-I, Section is presumed in the said meeting then also the only irresistible conclusion which arises from the overall facts and circumstances is that the senior officers of MOC were informed at least on the day of meeting held on 11.05.2007, if not before by the officers/officials of CA-I, Section about the total number of applications received and action taken so far on the applications or other details of the applications. Thus the CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 229 of 350 three accused senior officers of MOC can not claim that they were not aware of the details of the applications received or total number of applications received or the action taken on the applications so far, at least as on 11.05.2007 if not before thereto. Certainly when nothing has been stated by the three accused MOC officers as to what all knowledge they had about the details of the applications or the action taken on the applications till 11.05.2007 much less the source from whom they came to know about all such details so it will be completely logical and legal to presume that all the three accused MOC officers had knowledge that the applications have not been checked for their eligibility and completeness in accordance with the guidelines issued by MOC governing allocation of coal blocks before copies thereof were sent to Administrative Ministries/State Governments or to CMPDIL. Otherwise the accused MOC officers ought to have stated as to what facts relating to action taken so far on the applications was shared by them with other members of Screening Committee in the meeting held on 11.05.2007. These facts certainly can be to the exclusive knowledge of accused MOC officers only and thus they ought to have disclosed about the same more so when the said minutes Ex. PW 13/DX-16 (colly) have been relied upon by them only.
325. However, at this stage, I may make a note of caution that I am not trying to draw any conclusion merely based on the weaknesses of the defence but I am simply trying to reinforce my conclusion which is borne out from the files of MOC itself that the CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 230 of 350 applications so received in MOC were neither contemplated to be dealt with as per the provisions of Central Secretariat Manual of Office Procedure nor were ever dealt with as per the said provisions. There is admittedly no noting in any of the files of MOC from which any details of the applications so received in MOC or total number of applications so received or the manner in which they have been dealt with in MOC could be ascertained. Admittedly all the three accused senior MOC officers also did not put any noting in the files of MOC even after 11.05.2007 as to how and from whom they came to know about the total number of applications received, details of applications so received or the action taken so far on the applications much less to question CA-I, Section officers/officials as to for what reasons the guidelines qua checking of applications for eligibility and completeness were not complied with.
326. The aforesaid facts and circumstances not only goes to suggest that the working of MOC was completely adhoc in nature but also is a strong indicator of the malafide intention of the accused MOC officers who despite having acquired knowledge that the guidelines governing coal block allocation process have not been complied still chose to keep mum and probably because the same facilitated them in exercising their discretion in the coal block allocation process as per their whims and fancies. Arbitrary functioning and consequently lack of objectivity and transparency in the exercise of discretion seemed to be the order of day in MOC without any attention being paid to the rule of law.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 231 of 350
327. At the cost of repetition, I may mention that from my aforesaid discussion, it stands conclusively proved that all the three MOC officers i.e. A-4 H.C. Gupta, A-5 K.S. Kropha and A-6 K.C. Samria irrespective of the volume of work being handled by them were well aware of the total number of applications received or the details of the applications or the manner in which the applications were dealt with in MOC. As regard the exact date when the three officers came to know about said non-compliance with the guidelines, it can be well stated that at least as on 11.05.2007 all the three senior officers of MOC i.e. A-4 H.C. Gupta, A-5 K.S. Kropha and A-6 K.C. Samria had acquired the said knowledge, if not before. Though I may mention that keeping in view the nature of functioning of MOC at least as regard coal block allocation process it is difficult to believe that the three accused MOC officers were not aware about all such details of applications or the manner in which they have been dealt with even prior to 11.05.2007.
328. Thus the only irresistible conclusion which arises in the overall facts and circumstances as discussed above is that all the three senior officers of MOC i.e. A-4 H.C. Gupta, A-5 K.S. Kropha and A-6 K.C. Samria at least as on 11.05.2007 were well aware that the applications have not been checked for their completeness and eligibility in terms of the guidelines governing allocation of coal blocks. The said conclusion in no way can be stated to be based on any presumptions much less on conjectures and surmises.
329. There is yet another aspect of the matter. From the facts and CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 232 of 350 circumstances which stands proved on record it is also clear that the applications received even qua 34th and 35th Screening Committee were also never checked for their eligibility and completeness. Non- compliance with the guidelines governing allocation of coal blocks thus seems to be an accepted norm in MOC and that too with complete knowledge of the three accused MOC officers.
330. In his cross-examination, PW-13 V.S. Rana in response to a question put to him on behalf of A-4 H.C. Gupta and A-5 K.S. Kropha, stated as under:
"The procedure with respect to application received for 36th Screening Committee followed in MOC right upto the time when the applications were put up before the Screening Committee for consideration was the same which was followed as regard the applications received for 34th or 35th Screening Committee.
331. Similarly both A-4 H.C. Gupta and A-5 K.S. Kropha in their examination-in-chief when examined as DW-12 and DW-11 respectively also stated that the CA-I, Section undertook the scrutiny of the applications as per their understanding and as per the past practice. Admittedly both A-4 H.C. Gupta and A-5 K.S. Kropha were respectively the Chairman and Member Convener of 34th Screening Committee and 35th Screening Committee also. Thus to state that the applications were dealt with as per the past practice clearly leads to only two conclusions. Firstly the applications were not even checked in MOC for their completeness and eligibility even at the time of 34th Screening Committee and 35th Screening Committee and this fact was well to the notice of both A-4 H.C. Gupta and A-5 CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 233 of 350 K.S. Kropha and for this reason only it was stated by them in their examination-in-chief that the applications on this occasion also i.e. at the time of 36th Screening Committee were dealt with by CA-I, Section as per their understanding and as per the past practice.
332. On the other hand, if both A-4 H.C. Gupta and A-5 K.S. Kropha claims that even at the time of 34th and 35th Screening Committee also they were not aware as to in what manner the applications were dealt with by CA-I, Section then such a claim being made even after final allocation of various coal blocks having been made by 34th and 35th Screening Committee to different applicant companies clearly fortifies my earlier conclusion that the entire process of allocation of captive coal blocks as was undertaken in MOC was completely arbitrary and that too without paying any heed to the rules and regulations or guidelines governing such allocation of captive coal blocks. In these circumstances also it was for A-4 H.C. Gupta and A-5 K.S. Kropha to explain as to in what context they stated in their examination-in-chief as recorded u/s 315 Cr.PC or it was put to PW-13 V.S. Rana in his cross-examination on their behalf that CA-I, Section undertook scrutiny of the applications as per their understanding and as per the past practice. They ought to have explained as to what understanding of CA-I, Section or past practice they were referring to qua the scrutiny of applications.
333. Thus in either of the two situations, it was for A-4 H.C. Gupta and A-5 K.S. Kropha only to spell out their knowledge about the understanding of CA-I, Section in scrutinizing the applications or their CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 234 of 350 knowledge qua the past practice.
334. From my aforesaid discussion it thus stands reinforced that all the three accused MOC officers i.e. A-4 H.C. Gupta, A-5 K.S. Kropha and A-6 K.C. Samria were well aware at least as on 11.05.2007 that the applications have not been checked in MOC for their completeness and eligibility.
(E) Whether the three accused MOC officers i.e. A-4 H.C. Gupta, A-5 K.S. Kropha and A-6 K.C. Samria were responsible for ensuring compliance with the guidelines issued by MOC governing allocation of coal blocks.
335. In the light of my aforesaid discussion the next issue which is required to be examined is as to whether A-4 H.C. Gupta, A-5 K.S. Kropha and A-6 K.C. Samria were responsible to ensure compliance with the guidelines issued by MOC governing allocation of captive coal blocks. As earlier also mentioned it has been the consistent stand of all the three accused MOC officers that it was the sole responsibility of CA-I, Section officers/officials to comply with the said guidelines and in case they were finding it difficult to comply with the said guidelines they ought to have brought the said facts in writing to the notice of senior officers.
336. In this regard it will be worthwhile to mention that PW-13 V.S. Rana in his cross-examination stated that it was the job of CA-I, Section, MOC to receive the applications and to thereafter process them. Even otherwise since coal block allocation matters were admittedly being dealt with by CA-I, Section in MOC so it was CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 235 of 350 certainly the said section which was to remain associated with all the stages of coal block allocation process as were undertaken in MOC. However the issue of ensuring compliance with the guidelines in MOC needs to be seen on a broader platform keeping in view the importance of matter being dealt with and also as to what all steps were required to be undertaken in this regard. It also needs to be seen as to whether the senior officers of MOC who not only approved the guidelines as above but were also involved in the entire coal block allocation process either as officers of MOC or as Chairman and Member Convener of Screening Committee were even conscious of the consequences which may result in case the guidelines are not complied with especially as regard checking of applications for their completeness and eligibility or still whether they deliberately abdicated their responsibility in this regard so as to benefit certain given applicant companies. It also needs to be seen whether the senior officers of MOC were even alive to the voluminous nature of task involved in checking of applications or whether CA-I, Section officers/officials were capable and competent to undertake any such checking of applications as was envisaged in the guidelines.
337. In this regard, it will be worthwhile to mention that PW-13 V.S. Rana, Under Secretary, CA-I, Section MOC stated in his deposition that beside him there was one other Section Officer and two Dealing Assistants working in CA-I, Section. However irrespective of the strength of officials/officers posted in CA-I, Section and before I advert on to the issue as to who all were responsible for complying CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 236 of 350 with the guidelines so issued by MOC governing allocation of coal blocks, I am unable to restrain myself from observing that if the contentions of A-4 H.C. Gupta, A-5 K.S. Kropha and A-6 K.C. Samria are to be believed then the issue of complying with the guidelines qua the allocation of important Nationalised natural resources of the country i.e. coal which was essential for the overall industrial development of the country and had a great monetary value in the market was left to the mercy of LDC, UDC or a Section Officer or even to the level of an Under Secretary of the Ministry. All the three senior officers who were members of Indian Administrative Service have completely disowned their responsibility in the matter by stating that once the guidelines were approved and issued by them then it was the sole responsibility of the concerned section i.e. the lowest rung of the Ministry to comply with the said guidelines. They have taken a categorical stand that till the time matters were not brought to their notice by their subordinates that the guidelines have not been complied with neither the said facts came to their knowledge nor they had any reason to believe that the guidelines have not been complied with or more specifically that the applications have not been checked for their eligibility and completeness before sending copies thereof to the Administrative Ministries or to State Governments or to CMPDIL. However as I have already discussed and demonstrated in the earlier part of present judgment that from the minutes of meeting held on 11.05.2007 it is crystal clear that all the three senior officers of MOC i.e. A-4 H.C. Gupta, A-5 K.S. Kropha and A-6 K.C. Samria were well aware of the manner in which the applications have been dealt with CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 237 of 350 till then by MOC and they were also conscious of the requirement to scrutinize and evaluate applications in an objective manner so that non-serious applicants could be filtered out. Thus even if it is presumed for the sake of arguments that it was the sole responsibility of CA-I, Section to comply with the said guidelines then also when the action taken so far on the applications as on 11.05.2007 had come to the knowledge of all the three senior officers then at least they ought to have raised a red flag as to why the guidelines have not been complied with in letter and spirit. Their silence in this regard or omission to act even after the meeting held on 11.05.2007 clearly reinforces the irresistible inference/conclusion that all the three accused officers of MOC deliberately and consciously ignored the issue of compliance with the guidelines i.e. to ensure that the applications are checked for their completeness and eligibility at least after 11.05.2007. One copy of the applications was admittedly available with MOC. It is in these circumstances, if the claim of A-4 H.C. Gupta and A-5 K.S. Kropha as made in their examination-in- chief as DW-12 and DW-11 respectively that CA-I, Section undertook the scrutiny of the applications as per their understanding and as per the past practice is seen then it is found that even at the time of 34th and 35th Screening Committee meetings also no such checking of applications for their completeness and eligibility was undertaken by MOC. PW-13 V.S. Rana also in his cross-examination clearly stated that the process adopted by CA-I, Section, MOC for processing various applications received for allotment of different coal blocks with respect to 36th Screening Committee was the same which was CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 238 of 350 adopted by CA-I, Section with respect to applications received qua 34th and 35th Screening Committee. He also stated that even as regard applications dealt with by 34th and 35th Screening Committee no scrutiny of applications qua their completeness and eligibility was carried out. He thus categorically stated that the applications dealt with by 36th Screening Committee were also not checked for their eligibility and completeness in MOC.
338. In the aforesaid facts and circumstances, it is thus clear that even if the responsibility to comply with the guidelines qua checking of applications for eligibility and completeness is presumed to be that of CA-I Section then also it was equally the responsibility of the senior officers of MOC i.e. A-4 H.C. Gupta, A-5 K.S. Kropha and A-6 K.C. Samria to ensure that the applications are duly got checked for their completeness and eligibility in MOC if not before 11.05.2007 then at least after the meeting held on 11.05.2007. Admittedly one copy of applications was still available with MOC. As already discussed that at least on the day of meeting held on 11.05.2007 all the three accused MOC officers were aware as to how the applications have been dealt with so far in MOC.
339. In fact as regard the deposition of PW-13 V.S. Rana, it has been argued that he is trying to introduce new facts over and above his earlier statement u/s 161 Cr.PC made to IO by stating that oral information was given to senior officers of MOC that applications have not been checked for their completeness and eligibility. It was submitted that PW-13 V.S. Rana was now making improvements CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 239 of 350 solely with a view to save his own skin as being Under Secretary, CA- I, Section, it was his responsibility only to comply with the guidelines or in case of any difficulty being faced in complying with the guidelines, then to bring the relevant facts to the notice of senior officers in writing and which act he clearly failed to do. His testimony was thus stated to be completely unreliable.
340. In this regard it will be worthwhile to reiterate that there is admittedly no written note in the files of MOC prior to 11.05.2007 from which it may be even slightly inferred as to how the applications so received have been dealt with in MOC. There is also no note prior to 11.05.2007 in which total number of applications received might have been mentioned. Similarly there is no note mentioning any details of the applications so received by MOC. In these circumstances when A-4 H.C. Gupta admittedly in the meeting held on 11.05.2007 talked about the details of the applications or the total number of applications received or the process followed or the action taken so far i.e. till 11.05.2007 on the applications, so it was incumbent upon A-4 H.C. Gupta only to furnish details of the information as was shared by him in the meeting or the source and mode of receiving the said information by him. Thus in the absence of any written note in the files of MOC it has thus to be presumed that the said information was provided to him and to A-5 K.S. Kropha who too was also present in the said meeting alongwith A-6 K.C. Samria, orally by CA-I, Section officers/officials only.
341. In these circumstances when PW-13 V.S. Rana stated that he CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 240 of 350 had orally informed both A-4 H.C. Gupta and A-5 K.S. Kropha that applications have not been checked for their completeness or eligibility then he certainly appears to be stating true and correct facts. Moreover as already discussed and demonstrated above that even after receipt of applications the provisions of Manual of Office Procedure were hardly followed or adhered to in MOC. Also when admittedly none of the three senior officers of MOC raised any objection as to why the guidelines have not been followed than it is clear that it was an accepted practice in MOC from the time of 34th and 35th Screening Committee that before sending one copy of the applications to Administrative Ministries/State Governments or to CMPDIL the applications were not to be checked for their eligibility and completeness even though the guidelines issued by MOC itself mandated so.
342. Thus as there was no practice or mechanism put in place in MOC regarding checking of applications in terms of the guidelines from the time of 34th Screening Committee itself so no efforts were made at any level of officers/officials in MOC to ensure checking of applications for their completeness and eligibility in terms of the guidelines even at the time of 35th or 36 th Screening Committee also. It was for this reason only that there is no noting in any of the files of MOC mentioning that the applications have not been checked for their completeness and eligibility even though for various other issues, be it trivial or not there are notings in the files. Thus rightly or wrongly since the line of action to this extent of dealing with the CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 241 of 350 applications was clear to CA-I, Section officers/officials so in accordance with para 5 (9) (f) of Manual of Office Procedure the drafts were put up without much noting by CA-I, Section officials.
343. In these circumstances even if it is presumed for the sake of arguments that till 11.05.2007 it was the sole responsibility of PW-13 V.S. Rana, Under Secretary, CA-I Section, MOC or that of other officials of CA-I, Section to undertake checking of applications for their completeness and eligibility or to put up a note to the senior officers in the files of MOC regarding non-compliance with the guidelines then as discussed and demonstrated above at least after 11.05.2007 it was the duty of A-4 H.C. Gupta, A-5 K.S. Kropha and A- 6 K.C. Samria to ensure due compliance with the guidelines in both letter and spirit. Moreover if after 34th Screening Committee it was to the knowledge of A-4 H.C. Gupta and A-5 K.S. Kropha that CA-I, Section is not capable enough to carry out checking of applications for their eligibility and completeness then some proper mechanism ought to have been provided for in the guidelines framed qua 35th and 36th Screening Committee to ensure that the applications are duly checked for their eligibility and completeness in MOC. Again after 35th Screening Committee the three accused MOC officers could have put into place such a mechanism in MOC to ensure that applications are checked for their eligibility and completeness.
344. Thus it is clear from the aforesaid facts and circumstances that there has been complete abdication of duties by the three accused MOC officers. The accused MOC officers acted in the most CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 242 of 350 arbitrary manner and that too without paying any heed to the rules, regulations or procedures governing allocation of captive coal blocks. Their conduct in not ensuring compliance with the guidelines at least after 11.05.2007 clearly shows that their all such acts were conscious and deliberate. However my subsequent discussion while examining the other acts of omission and commission as were undertaken by the three accused MOC officers in the later part of coal block allocation process which finally led to allocation of Thesgora- B/Rudrapuri coal block in favour of A-1 M/s KSSPL will further fortify the aforesaid conclusion. The accused MOC officers thus so acted as if they were completely oblivious of the consequences of not complying with the guidelines governing allocation of captive coal blocks i.e. the consequences of not ensuring that the applications are checked for their eligibility and completeness.
(F) Consequences of not checking the applications for their eligibility and completeness in terms of the guidelines.
345. While discussing the role of private parties i.e. of A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia, I have already demonstrated that the application of A-1 M/s KSSPL was liable to be rejected at the initial stage being incomplete as it was not accompanied with all the required documents as mandated by the guidelines issued by MOC governing allocation of coal blocks.
346. DW-12 H.C. Gupta in his cross-examination as conducted by Ld. Sr. P.P. Sh. V.K. Sharma also admitted that the application of A-1 M/s KSSPL in the absence of requisite documents having been not CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 243 of 350 enclosed with it was incomplete and thus ought to have been rejected. He however stated that he came to know about this fact only during the investigation of the present case and more clearly during the course of present trial. Similar has been the stand of A-5 K.S. Kropha and A-6 K.C. Samria in their respective deposition when they entered the witness box as defence witnesses u/s 315 Cr.PC.
347. However A-4 H.C. Gupta also took a very strange stand in his deposition as DW-12 when he stated that irrespective of an applicant company being eligible or not his application was to be placed before the Screening Committee. He however further stated that recommendation for allocation of a coal block was in fact to be made in favour of most eligible company. A-5 K.S. Kropha also in his deposition as DW-11 denied the suggestion that in the Screening Committee the applications of only such applicant companies were to be placed for consideration whose applications were found to be complete and the applicants being eligible. He in fact further went on to state voluntarily that as per his understanding of the guidelines under the title "Processing of Application" all the applications received by MOC whether they were complete or not were to be sent to Administrative Ministries/State Governments for their evaluation and recommendations and upon receipt of their recommendations all the applications were to be put up before the Screening Committee for its consideration. Similarly A-6 K.C. Samria as DW-10 also denied the suggestion that incomplete applications or applications of companies which were not eligible ought not to have been placed before the CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 244 of 350 Screening Committee. He also stated that it was the sole prerogative of Screening Committee to consider the applications of various applicant companies and to look into the aspect as to whether any given applicant company was an eligible company or not as per the guidelines issued by MOC for allotment of a captive coal block. As regard the completeness of any given application, he further stated that regardless of the said fact all the applications were to be placed before the Screening Committee for its consideration.
348. Before adverting further, I may however state that in view of the aforesaid nature of interpretation being now put to the guidelines governing allocation of coal blocks by the accused senior officers of MOC who in fact were actively involved in the entire coal block allocation process including the process vide which the said guidelines came to be framed and approved, it will be apt to refer to certain observations of Hon'ble Supreme Court as were made while dealing with the principle of "Contemporanea Expositio" in its order dated 25.08.2014 in Manohar Lal Sharma case (Supra) "67. In Desh Bandhu Gupta 11, this Court has dealt with the principle of Contemporanea Expositio. While doing so, this Court referred to Crawford on Statutory Construction (1940 ed.) and the two decisions of the Calcutta High Court in Baleshwar Bagarti12 and Mathura Mohan Saha13 and culled out the legal position in para 9 (page 572 of the Report) as under: "9. It may be stated that it was not disputed before us that these two documents which came into existence almost simultaneously with the issuance of the notification could be looked at for finding out the true intention of the Government in issuing the notification in question, particularly in regard to the manner in which outstanding transactions were to be closed or liquidated. The principle of contemporanea expositio CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 245 of 350 (interpreting a statute or any other document by reference to the exposition it has received from contemporary authority) can be invoked though the same will not always be decisive of the question of construction (Maxwell 12th ed.p. 268). In Crawford on Statutory Construction (1940 ed.) in para 219 (at pp. 393-
395) it has been stated that administrative construction (i.e. contemporaneous construction placed by administrative or executive officers charged with executing a statute) generally should be clearly wrong before it is overturned; such a construction, commonly referred to as practical construction, although not controlling, is nevertheless entitled to considerable weight; it is highly persuasive. In Baleshwar Bagarti v. Bhagirathi Dass [ILR 35 Cal 701 at 713] the principle, which was reiterated in Mathura Mohan Saha v. Ram Kumar Saha [ILR 43 Cal 790 : AIR 1916 Cal 136] has been stated by Mookerjee, J., thus:
'It is a well settled principle of interpretation that courts in construing a statute will give much weight to the interpretation put upon it, at the time of its enactment and since, by those whose duty it has been to construe, execute and apply it..... I do not suggest for a moment that such interpretation has by any means a controlling effect upon the courts; such interpretation may, if occasion arises, have to be disregarded for cogent and persuasive reasons, and in a clear case of error, a court would without hesitation refuse to follow such construction.
. . . .
. . . .
. . . ."
(Emphasis supplied by me)
349. Hon'ble Supreme Court thereafter went on to further observe that in view of the aforesaid consistent view an interpretation to the statute received from contemporary authority is not binding upon the Courts and may have to be disregarded if such interpretation by the contemporary authority is clearly wrong.
350. It has been however also argued by Ld. Counsels for the CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 246 of 350 accused MOC officers that as the guidelines so framed by MOC were not having any statutory force so the interpretation as understood and put to them by the officers concerned should prevail over any other view.
351. In this regard I may however state that not only such an argument is riddled with inconsistency but even otherwise such an interpretation appeals neither to logic nor can be stated as a meaning which could be assigned to the guidelines by a reasonably prudent person.
352. Firstly, the aforesaid observations of Hon'ble Supreme Court qua the principles of "Contemporanea Expositio", as is reflected in the observations itself will hold ground also qua the guidelines in question irrespective of the fact whether the guidelines were having any statutory force or not. Moreover, as already discussed the guidelines were framed in order to implement the provisions of Mines and Minerals (Development and Regulation) Act, 1957 (herein-after referred to as MMDR Act) and that of Coal Mines (Nationalisation) Act, 1973 (herein-after referred to as 'CMN Act') and were having binding force both upon MOC officers as well as on the Screening Committee. Moreover it is not the case of anyone at all during the trial that guidelines were not having any binding force. On the other hand, it was rather argued by the accused persons that the guidelines were followed even for ascertaining the inter-se priority of the applicant companies during the Screening Committee meeting held on 03.07.2008.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 247 of 350 In fact the guidelines were framed admittedly to control and regulate the discretion to be exercised by MOC officers and the Screening Committee in recommending allocation of captive coal blocks.
353. Secondly, if the interpretation as is being given by the MOC officers is accepted then the very purpose of framing of the guidelines shall stand defeated. If application of none of the companies was to be rejected despite being incomplete or the company being ineligible or in other words applications of all companies were to be put up before the Screening Committee irrespective of the fact as to whether they were eligible or not or their applications were complete or not then no purpose would have been served by carrying out their checking qua completeness or eligibility. Certainly no purpose could have been served by placing applications of any such companies before the Screening Committee for the said company(ies) could not have been recommended for allocation of any coal block. The very purpose of mentioning the words in the guidelines that applications without the requisite documents shall be rejected would loose their meaning and purpose.
354. It was also argued by Ld. Counsels for A-4 H.C. Gupta and A- 5 K.S. Kropha and by Ld. Counsel for A-6 K.C. Samria that State Governments concerned and Administrative Ministries were suppose to carry out detailed evaluation of the claims made by the applicant companies by carrying out techno-economic appraisal of the companies. However a bare perusal of minutes of meeting held on CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 248 of 350 11.05.2007 Ex. PW 13/DX-16 (colly) clearly shows that the Administrative Ministries were not carrying out any detailed scrutiny or evaluation of the applications so sent to them. Subsequently from the recommendations so received from the Administrative Ministries also it was evident that no such checking of applications for completeness or eligibility has been carried out by them. In fact Ministry of Steel in its communication dated 06.12.2007 Ex. PW 13/J- 1 (colly) in file Ex. PW 13/C (colly) (D-5A) clearly called upon the Screening Committee to consider the potential and credibility of the applicants in setting up capacity addition in steel sector or progress made in respect of the steel capacity projects. The minutes of 36th Screening Committee Ex. PW 13/L (colly) (D-6A) also clearly shows that even during the course of Screening Committee meeting it was clear that the Administrative Ministries have not carried out any detailed scrutiny of applications much less verifying the claims made in the applications.
355. Thus, it was clear to the accused MOC officers that no checking of applications for their eligibility and completeness has been carried out by the Administrative Ministries to whom applications were sent for their comments/recommendations. It is thus crystal clear that the applications in accordance with the guidelines issued were to be checked for their completeness and eligibility by MOC only. It is also clear that in terms of the guidelines the applications of all such companies as were incomplete or the applicants being ineligible were to be rejected at the initial stage itself and were not to CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 249 of 350 be even sent to Administrative Ministries/State Governments or to CMPDIL much less placing them before the Screening Committee. Moreover, as already discussed and demonstrated that in terms of the guidelines, the application Ex. PW 1/F (colly) (D-10) of A-1, M/s KSSPL was clearly incomplete as it was not accompanied with all the requisite documents as were asked for by MOC. The application of the company was thus liable to be rejected at the initial stage itself being incomplete as per the mandate of the guidelines.
356. Thus, it will be completely fallacious to state that all the applications even if anyone of them or more was incomplete in terms of the guidelines were to be put up before the Screening Committee. The said plea of defence thus clearly seems to have been put forward only because on account of non-checking of the applications for their completeness and eligibility in MOC, the application of A-1, M/s KSSPL instead of getting rejected at the initial stage itself being incomplete came to be placed before the Screening Committee for consideration and in fact was even recommended by the Screening Committee for allocation of a coal block. The claim that all the applications whether they were complete or not or even if the said applicant companies were eligible or not, were to be put up before the Screening Committee for consideration is thus clearly an attempt to cover-up the acts of omission and commission on the part of accused MOC officers in not ensuring that the applications are checked for their completeness and eligibility.
357. Thus from the overall facts and circumstances of the case CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 250 of 350 and the manner in which the applications were dealt with in MOC, it will be entirely logical to infer and conclude that the accused MOC officers consciously and deliberately ignored compliance with the guidelines and that too without caring for the consequences which were likely to occur in case application of any company which is liable to be rejected being incomplete or company being ineligible on any factor, is processed further and is put at par with the applications of such other companies who were not only eligible but their applications were also complete, in as much as all the necessary documents asked for by MOC were duly annexed with the application. In fact the intention of accused MOC officers in doing so appear to be to keep the field open at the stage of initial scrutiny by not ruling out any applicant company from the zone of consideration of the Screening Committee. The subsequent events rather shows that in the Screening Committee the application of A-1 M/s KSSPL was not only considered but was also recommended for allocation of a captive coal block by A-4 H.C. Gupta.
358. At this stage, I may also deal with yet one other submission of Ld. Counsel for A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia that prosecution has not proved on record that the applications of other companies who had applied for allocation of Thesgora-B/Rudrapuri coal block were complete or that those companies were eligible for allotment of a captive coal block.
359. However in this regard it would be suffice to state that the aforesaid submission of Ld. Defence Counsel is based on a fallacious CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 251 of 350 assumption. If the checking of applications for their eligibility and completeness would have been undertaken in terms of the guidelines then not only the application of A-1 M/s KSSPL but also that of all such other companies whose applications would have been found to be incomplete or ineligible would have stood rejected. Thus applications of only such companies would have been placed before the Screening Committee whose applications would have been found to be complete or eligible. Yet another fallacy in the submission of Ld. Defence Counsel is that even if applications of all the applicant companies for any given coal block would have stood rejected, had checking of applications for eligibility and completeness undertaken in MOC, then also there was no compulsion either upon MOC or upon the Screening Committee to compulsorily allocate the said given coal block to one or the other applicant company. In such an eventuality the said coal block would have remain unallocated.
360. In fact the aforesaid circumstances in itself takes care of a number of other arguments put forth by Ld. Counsel for A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia that A-1 M/s KSSPL was the most suitable and appropriate applicant company to be recommended by the Screening Committee. It was submitted by him that as per the guidelines laid down by Ministry of Steel, though for its internal use, the company M/s KSSPL ought to have been placed under category II(b) and not under II(a) as the company M/s KSSPL was already having a coal linkage. In order to bring home the fact that A-1 M/s KSSPL was the most suitable company alongwith M/s Revati CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 252 of 350 Cement Pvt. Ltd. to be recommended for allotment of Thesgora- B/Rudrapuri coal block a comparative analysis of the application of A- 1 M/s KSSPL with that of other applicant companies who had applied for Thesgora-B/Rudrapuri coal block was also attempted by Ld. Counsels for the accused persons during the course of cross- examination of prosecution witnesses and in the deposition of defence witnesses.
361. However the said contentions of Ld. Counsels for the accused persons does not hold ground at all since the application of A-1 M/s KSSPL was liable to be rejected at the initial stage itself in MOC being incomplete. Had it been done so, the question of it being one of the most suitable company would not have arisen at all. Similarly the issue of change of its category by Ministry of Steel would not have come into picture at all, for the application of A-1 M/s KSSPL would not have been even sent to Ministry of Steel for examination by MOC. The question of any comparison of the claims made in the application by A-1 M/s KSSPL with that of other applicant companies would not have arisen at all.
362. Ld. Counsels for the accused MOC officers also placed strong reliance upon the description of duties of various levels of officers in a Ministry under Central Government as mentioned in the Manual of Office Procedure. Though I have already held that the applications received in MOC were never dealt strictly as per the provisions of Manual of Office Procedure and in fact the provisions were observed more in breach but still in order to appreciate the role CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 253 of 350 and responsibilities of various levels of officers in a Ministry under Central Government it will be appropriate to refer to the same as are mentioned in the Manual of Office Procedure. Para 5 in Chapter III titled "Machinery of Government" provides for the function of department and various levels of functionaries as under:
Chapter III Machinery of Government
1. . . . . .
. . . . .
2. . . . . .
. . . . .
3. . . . . .
. . . . .
4. . . . . .
. . . . .
5. Department -
(1) A department is responsible for formulation of policies of the government in relation to business allocated to it and also for the execution and review of those policies. (2) For the efficient disposal of business allotted to it, a department is divided into wings, divisions, branches and sections.
(3) A department is normally headed by a secretary to the Government of India who acts as the administrative head of the department and principal adviser of the Minister on all matters of policy and administration within the department. (4) The work in a department is normally divided into wings with a Special Secretary/Additional Secretary/Joint Secretary in charge of each wing. Such a functionary is normally vested with the maximum measure of independent functioning and responsibility in respect of the business falling within his wing subject, to the overall responsibility of the Secretary for the administration of the department as a whole.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 254 of 350 (5) A wing normally comprises a number of divisions each functioning under the charge of an officer of the level of Director/Joint Director/Deputy Secretary. A division may have several branches each under the charge of an Under Secretary or equivalent officer.
(6) A section is generally the lowest organisational unit in a department with a well-defined area of work. It normally consists of assistants and clerks supervised by a Section Officer. Initial handling of cases (including noting and drafting) is generally done by, assistants and clerks who are also known as the dealing hands.
(7) While the above represents the commonly adopted pattern of organisation of a department, there are certain variations, the most notable among them being the desk officer system. In this system the work of a department at the lowest level is organised into distinct functional desks each manned by two desk functionaries of appropriate ranks e.g. Under Secretary or Section Officer. Each desk functionary handles the cases himself and is provided adequate stenographic and clerical assistance.
(8) The other notable variation is the Integrated Headquarters of Ministry of Defence where, the Vice Chiefs of Staff, the Principal Staff Officers of the concerned branches and other appropriate authorities, exercise the powers delegated by the Raksha Mantri through he various Branches and the Directorates of the Integrated Headquarters of the Ministry of Defence.
(9) Functions of various levels of functionaries :
(a) Secretary - A Secretary to the Government of India is the administrative head of the Ministry or Department. He is the principal adviser of the Minister on all matters of policy and administration within his Ministry/Department, and his responsibility is complete and undivided.
(b) Special Secretary/Additional Secretary/Joint Secretary - When the volume of work in a Ministry exceeds the manageable charge of a Secretary one or more wings may be established with Special Secretary/Additional Secretary/Joint Secretary, incharge of each wing. Such a functionary is entrusted with the maximum measure of independent functioning and responsibility in respect of all business falling within his wing subject, to the general responsibility of the Secretary for the administration of the wing as a whole.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 255 of 350
(c) Director/Deputy Secretary - Director /Deputy Secretary is an officer who acts on behalf of the Secretary. He holds charge of a Secretariat Division and is responsible for the disposal of Government business dealt within the Division under his charge. He should, ordinarily be able to dispose of the majority of cases coming upto him on his own. He should use his discretion in taking orders of the Joint Secretary/Secretary on more important cases, either orally or by submission of papers.
(d) Under Secretary - An Under Secretary is in charge of the Branch in a Ministry consisting of two or more Sections and in respect thereto exercises control both in regard to the despatch of business and maintenance of discipline. Work comes to him from the sections under his charge. As Branch Officer he disposes of as many cases as possible at his own level but he takes the orders of Deputy Secretary or higher Officers on important cases.
(e) Section Officer -
A. General Duties -
(i) Distribution of work among the staff as evenly as possible;
(ii) Training, helping and advising the staff;
(iii) Management and co-ordination of the work;
(iv) Maintenance of order and discipline in the section;
(v) Maintenance of a list of residential addresses of the Staff.
B. Responsibilities relating to Dak -
(i) to go through the receipts;
(ii) to submit receipts which should be seen by the Branch Officer or higher officers at the dak stage;
(iii) to keep a watch on any hold-up in the movement of dak; and
(iv) to scrutinize the section diary once a week to know that it is being properly maintained.
C. Responsibilities relating to issue of draft -
(i) to see that all corrections have been made in the draft before it is marked for issue;
(ii) to indicate whether a clean copy of the draft is necessary;
(iii) to indicate the number of spare copies required;
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 256 of 350
(iv) to check whether all enclosures are attached;
(v) to indicate priority marking;
(vi) to indicate mode of despatch.
D. Responsibility of efficient and expeditious disposal of work and checks on delays -
(i) to keep a note of important receipts with a view to watching the progress of action;
(ii) to ensure timely submission of arrear and other returns;
(iii) to undertake inspection of Assistants' table to ensure that no paper of file has been overlooked;
(iv) to ensure that cases are not held up at any stage;
(v) to go through the list of periodical returns every week and take suitable action on items requiring attention during next week.
E. Independent disposal of cases -
He should take independently action of the following types -
(i) issuing reminders;
(ii) obtaining or supplying factual information of a non- classified nature;
(iii) any other action which a Section Officer is authorized to take independently.
F. Duties in respect of recording and indexing -
(i) to approve the recording of files and their classification;
(ii) to review the recorded file before destruction;
(iii) to order and supervise periodic weeding of unwanted spare copies;
(iv) ensuring proper maintenance of registers required to be maintained in the section;
(v) Ensuring proper maintenance of reference books, Office Orders etc. and keep them up-to-date;
(vi) Ensuring neatness and tidiness in the Section;
(vii) Dealing with important and complicated cases himself;
(viii) Ensuring strict compliance with Departmental Security Instructions.
(f) Assistant/Upper Division Clerk - He works under the orders and supervision of the Section Officer and is CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 257 of 350 responsible for the work entrusted to him. Where the line of action on a case is clear or clear instructions have been given by the Branch Officer or higher officers, he should put up a draft without much noting. In other cases he will put up a note keeping in view the following points :-
(i) to see whether all facts open to check have been correctly stated;
(ii) to point out any mistakes or incorrect statement of the facts;
(iii) to draw attention, where necessary, to precedents or Rules and Regulations on the subject;
(iv) to put up the Guard file, if necessary, and supply other relevant facts and figures;
(v) to bring out clearly the question under consideration and suggest a course of action wherever possible.
(g)Private Secretary/PersonalAssistant/Stenographer
- He will keep the officer free from routine nature of work by mailing correspondence, filing papers, making appointments, arranging meeting and collecting information so as to give the officer more time to devote himself to the work in which he has specialised. The Personal Assistant will maintain the confidentiality and secrecy of confidential and secret papers entrusted to him. He will exercise his skill in human relations and be cordial with the persons who come in contact with his boss officially or who are helpful to his boss or who have dealings with the boss as professional persons. Some of the more specific functions are enumerated below :-
(i) taking dictation in shorthand and its transcription in the best manner possible;.
(ii) fixing up of appointments and if necessary canceling them;
(iii) screening the telephone calls and the visitors in a tactful manner;
(iv) keeping an accurate list of engagements, meetings etc. and reminding the officer sufficiently in advance for keeping them up;
(v) maintaining, in proper order, the papers required to be retained by the Officer;
(vi) keeping a note of the movement of files, seen by his officer and other officers, if necessary;
(vii) destroying by burning the stenographic record of the confidential and secret letters after they have been typed and issued;
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 258 of 350
(viii) carrying out the corrections to the officer's reference books and making fair copies of draft demi-official letters to be signed by the officer;
(ix) generally assisting him in such a manner as he may direct and at the same time, he must avoid the temptation of abrogating to himself the authority of his boss.
(h) Lower Division Clerk - Lower Division Clerks are ordinarily entrusted with work of routine nature, for example - registration of Dak, maintenance of Section Diary, File Register, File Movement Register, Indexing and Recording, typing, comparing, despatch, preparation of arrears and other statements, supervision of correction of reference books and submission of routine and simple drafts etc."
(Emphasis supplied by me)
363. Thus from a bare perusal of Para 5 (a), it is clear that a Secretary to the Government of India is not only the Administrative Head of the Ministry or Department but he is also the Principal Advisor of the Minister on all matters of policy and administration within his Ministry/Department. It has been further provided that the responsibility of the Secretary shall be complete and undivided. Similarly while describing the functions of Special Secretary/Joint Secretary, it has been stated that though such a functionary is entrusted with the maximum measures of independent functioning and responsibility in respect of all business falling within his wings but it is further stated that the same shall be subject to the general responsibility of the Secretary for the administration of the wing as a whole. As regard Director/Deputy Director, it has been provided that he is an officer who acts on behalf of the Secretary. It has also been stated that he should use his discretion in taking orders of Joint Secretary/Secretary on more important cases, either orally or by CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 259 of 350 submission of papers. Similarly, in the functions of Assistant/Upper Divisional Clerk as provided in the Manual of Office Procedure, it has been stated that though he works under the orders and supervision of the Section Officer and is responsible for the work entrusted to him but where the line of action on a case is clear or clear instructions have been given by the branch officer or higher officer he should put up a draft without much noting. In other cases he is supposed to put up a note keeping in view various points such as, whether all facts open to check have been correctly stated; to point out any mistakes or incorrect statement of the facts; to draw attention, where necessary, to precedents or Rules and Regulations on the subject; to put up the Guard file, if necessary, and supply other relevant facts and figures and to bring out clearly the question under consideration and suggest a course of action wherever possible etc.
364. Though as regard the responsibility of Secretary which has been stated to be complete and undivided, DW-12 H.C. Gupta stated that on account of volume of work handled by a Secretary, in a Ministry, the Secretary thereof can not be expected to look into the detailed working of each and every section of the Ministry. It was further stated that senior officers in a Ministry work on the basis of trust and belief that each section must have completed his work properly. He further stated that as number of files used to come before him everyday so the system functions on the basis of trust and the contribution of all concern towards final decision.
365. In order to better appreciate the aforesaid submissions of A-4 CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 260 of 350 H.C. Gupta, it will be worthwhile to once again revisit the circumstances in which the decision to allot captive coal blocks to private companies engaged in certain specified end uses was taken by the Central Government or the consequent guidelines governing allocation of coal blocks were issued. On account of acute scarcity of coal in the country, the Coal Mines (Nationalisation) Act, 1973 was amended in the year 1993 and thereafter provision was made for allocation of coal blocks to private companies engaged in specified end uses for their captive use. Admittedly the 7th Energy Co- ordination Committee in order to avoid undue delay also directed MOC to expedite the process of allocation of captive coal blocks and pursuant to which the advertisement in question was issued in November 2006 alongwith guidelines as above. The important question which however arises is whether any instructions were issued at any point of time by Ministry of Coal as to in what manner the guidelines shall be complied with or by whom. As already demonstrated above the applications were neither contemplated nor were dealt or processed strictly as per the provisions of Manual of Office Procedure. However an important issue to be kept in mind while appreciating all these aspects is that the issue being dealt with by MOC was of immense importance in which large business houses were expressing great interest. The pride of place which coal as an important raw material had, was also not unknown to the MOC officers. However the guidelines issued by MOC provided for various conditions which the applicant companies were to comply with or what all documents were required to be annexed with the applications CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 261 of 350 or what shall be the consequences if any of the said document(s) are not annexed, were completely silent as regard any implementation mechanism. Nothing was mentioned in the guidelines as to who shall be responsible for ensuring compliance with the guidelines or as to in what manner or by what mechanism the guidelines shall be complied with. It was thus imperative for the authorities approving the said guidelines to have given a thought as to how large number of applications which were expected to be received shall be dealt with. PW-13 V.S. Rana in his cross-examination stated that with respect to deciding modalities of allocation of coal blocks, the competent authority was Secretary Coal. As is evident from the records and the experience of 34th Screening Committee which A-4 H.C. Gupta and A-5 K.S. Kropha admittedly had, it is clear that the senior officers of MOC were well aware that large number of applications are likely to be received in response to the advertisement. They were also aware that applications will be voluminous in nature. From the minutes of the meeting held on 11.05.2007 Ex. PW 13/DX-16 (colly), it is clear that in the last round of allocation of captive coal blocks, 734 applications were received by MOC. The said fact was undisputedly to the knowledge of accused persons as A-4 H.C. Gupta and A-5 K.S. Kropha were Chairman and Member Convener, respectively, of 34th Screening Committee also. The said Committee had thus dealt with 734 applications. Moreover it was for this reason only that the place of receipt of applications was fixed at Coal India Limited office, Laxmi Nagar as not only large number of applications were expected to be received but also because the applications to be so received were CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 262 of 350 bound to be bulky in nature. It is for this reason only that certain officials from the office of Coal Controller, Kolkata as deposed to by PW-12 Amlendu Khamru were called to assist CA-I, Section officials in sorting out the applications. Even PW-13 V.S. Rana admitted in his cross-examination that due to paucity of space the applications were received only at Laxmi Nagar office of CIL and were never received at Shastri Bhawan office of MOC.
366. Thus in these circumstances it will be completely permissible for this Court to presume keeping in view the routine course of transaction of business in MOC that the senior officers thereof must have been aware as to the tedious and voluminous nature of work which will be required to be put for checking of applications for their eligibility and completeness in terms of the guidelines issued. As already mentioned such a knowledge can certainly be attributed to A-4 H.C. Gupta and A-5 K.S. Kropha primarily on account of their past experience of handling quite a large number of applications i.e. about 734 applications received qua 34th Screening Committee. Moreover after 34th Screening Committee and prior to the present meeting of 36th Screening Committee these very officers were also involved with the recommendation of various applicant companies qua different coal blocks reserved for power sector as the same were dealt with by 35th Screening Committee. At that time also about 700 applications were dealt with by 35th Screening Committee.
367. Thus if in the aforesaid circumstances, senior officers of MOC dare to claim that they were not aware as to in what manner the CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 263 of 350 applications received qua 34th or 35th Screening Committee meeting were dealt with by MOC then without any further discussion it can be stated that the conduct of accused MOC officers be it in their capacity as MOC officers or as Chairman and Member Convener of various Screening Committees is shrouded with suspicion and is not free from doubts. Their actions are thus certainly not above board. In fact from the overall facts and circumstances of the case as discussed above coupled with various acts of omission and commission of the accused MOC officers, it is clear that it is not simplicitor a case where they were oblivious of the likely consequences of their acts of omission and commission but they deliberately ignored the guidelines so as to ensure that all applications whether complete or not or applicant companies being eligible for allotment of captive coal blocks or not are considered by the Screening Committee as the same would facilitate arbitrary exercise of discretion vested in them in the coal block allocation process. The intention was certainly clear in as much as they wanted to favour any applicant company as they may choose to at a subsequent stage.
368. The only purpose of discussing the aforesaid circumstances was to highlight that the task of checking of applications for their completeness and eligibility in terms of the guidelines was a tedious and cumbersome task. Thus the senior officers of MOC despite being aware of the aforesaid nature of work involved chose to not issue any directions or instructions at the time of approving the guidelines as to whose responsibility will it be to comply with the said guidelines or as CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 264 of 350 to in what manner the same will be complied with. In fact the senior officers of MOC admittedly did not even care to enquire even at a later stage as to whether the guidelines qua checking of applications for completeness or eligibility have been complied with or not. Their consistent stand that unless the officers/officials of CA-I, Section had brought to their notice any difficulty, if faced by them in this regard, they were not supposed to look into the same has already been found to be not tenable or as being completely devoid of any merits.
369. Thus in view of my aforesaid discussion, I am of the considered opinion that A-4 H.C. Gupta being Secretary Coal can not shirk off his complete and undivided responsibility as mentioned in Manual of Office Procedure by merely stating that as Secretary Coal he can not be expected to look into the detailed working of each and every section. Similarly A-5 K.S. Kropha, Joint Secretary Coal or A-6 K.C. Samria, Director, CA-I, Section, also can not absolve themselves of their responsibilities with respect to coal block allocation process by stating that they were having work of other sections/wings of MOC also to look after. Moreover A-4 H.C. Gupta was aware that Ministry of Coal will allot various coal blocks based on the recommendations of Screening Committee only. Also as Secretary Coal, A-4 H.C. Gupta was not only the administrative head of the Ministry but was also the principle advisor of the Minister on all matters of policy and administration within his Ministry. Thus as the file containing recommendation of Screening Committee was to put up to Prime Minister as Minister of Coal so his responsibility all the more was CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 265 of 350 more onerous in ensuring that complete and correct facts are placed before him. However at a later stage I shall also discuss that MOC officers even with-held information from PMO that the guidelines governing of allocation of coal blocks have not been complied with either in MOC or in the Screening Committee.
370. While A-5 K.S. Kropha was associated with the entire coal block allocation process with A-4 H.C. Gupta from beginning but from March 2007 onwards even A-6 K.C. Samria was also associated with the said allocation process. In fact PW-12 Amalendu Khamru, the official of the office of Coal Controller who had come to assist CA-I, Section officials in processing of applications clearly stated that they were asked to only sort out the applications in five different boxes after putting serial numbers on them and they were never asked to check the applications for their eligibility and completeness. He also stated that A-5 K.S. Kropha had visited them when they were so carrying out the sorting work and had told them that we must first complete the sorting work before going back to our office at Kolkata. He further stated that on the asking of A-5 K.S. Kropha they extended their stay in Delhi beyond the initial period of 10 days. PW- 13 V.S. Rana also corroborated his testimony in this regard stating that A-5 K.S. Kropha was not only initially informed about the arrival of said four officials from the office of Coal Controller but later on he also visited them at Laxmi Nagar office.
371. At this stage as a mark of caution, I may mention that I am not trying to draw any presumption regarding the role and CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 266 of 350 responsibility of senior officers of MOC on the basis of conjectures and surmises. In fact all the inferences/conclusions being drawn by me are clearly borne out from the overall facts and circumstances of the case as stands proved on record.
372. Thus in view of my aforesaid discussion, the responsibility to comply with the guidelines issued by MOC governing allocation of coal blocks can not be solely attributed to CA-I, Section officers/officials. In fact even if the arguments put forth by Ld. Counsels for the three MOC officers are accepted that it was the responsibility of CA-I, Section officers/officials to carry out the actual physical work of checking the applications but even then the same was to be carried out under the supervision of senior officers of MOC only. The said supervision also can not be left at the level of Under Secretary, by simply stating that while sending one set of applications to State Governments concerned or to Administrative Ministries he did not care to put up the file to senior officers even though the file was put up to the senior officers on other innocuous matters such as procuring 130 locks and trunks or for making transport arrangements. In this regard, I may simply state that since the applications in MOC were being dealt with in the same manner as were handled on earlier occasions so as per Manual of Office Procedure where the line of action on a case is clear then without much noting, the file was to be put up. Thus since the line of action on sending one set of applications to State Governments concerned or to Administrative Ministries or to CMPDIL was clear in as much as on earlier occasions CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 267 of 350 also the applications were dealt with in the similar manner so the noting in that regard ended at the level of Under Secretary, V.S. Rana (PW-13). The Manual of Office Procedure clearly states that an Under Secretary as branch officer disposes of as many cases as possible. In fact while approving the said note on 19.02.2007, PW-13 V.S. Rana also made an endorsement that "Issue to only those states for which applications are ready". Thus if in the aforesaid circumstances the arguments of senior officers of MOC are considered that it was the sole responsibility of PW-13 V.S. Rana as under Secretary and Branch Incharge of CA-I, Section to ensure compliance with the guidelines then vide his aforesaid noting one can say that he had also put a mark of caution to his subordinates that applications be sent to only those states for which applications are ready. Thus the final responsibility will then rest somewhere with the Section Officer or even on the two dealing Assistants under him who in fact had put up the note dated 19.02.2007 as available at note-sheet page 10 in file Ex. PW 1/H (colly) (D-2) of MOC stating that applications received for allocation of 39 coal blocks are ready to dispatch.
373. Thus if in the overall facts and circumstances of the case coupled with the detailed nature of guidelines issued governing allocation of such important Nationalised natural resources of the country, the responsibility of checking the applications for their completeness and eligibility is left at the level of a dealing assistant of the rank of LDC or UDC in one section of the Ministry then the senior officers of MOC certainly failed grossly in not only supervising the CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 268 of 350 functioning of the officers below them but also in not putting in place a system comprising of responsible officers/officials who could have ensured compliance with the guidelines. In fact as stands reflected from the subsequent events which took place in the coal block allocation process the acts of accused senior officers of MOC in not ensuring compliance with the guidelines was also part of a well planned strategy to keep the field open so that during Screening Committee meetings they may exercise their discretion in favour of any applicant company, they may choose to. As regard the issue that the file regarding arrangement of 130 big size trunks and transport arrangements to be made by CIL for carrying the applications was put up to the level of Joint Secretary, Coal K.S. Kropha, it would be suffice to state that since the procurement of big size trunks or making of transportation arrangements can not be stated to be part of a routine nature of working of a Ministry and also the said issue involved financial implications qua purchase of big size trunks or for making transportation arrangements and that too to be made by another department i.e. CIL so in those circumstances one can reasonably infer that file was put up to the level of Joint Secretary for necessary approval. If that be not so then at least the Director through whom the file moved to the desk of Joint Secretary could have always approved the note at his own level without forwarding it to the desk of Joint Secretary. One may however say that as mentioned on the said note sheet page 9 the concerned Director CA- I, Section was on election duty and thus the file was put up before the Link Director and he thus could not have approved the note at his CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 269 of 350 own level. The aforesaid submission however may not hold ground at all for various reasons. Firstly the link Director was also an officer of MOC and there can not be an order or direction issued to any such link Officer that he will not take any final decision at his level being a link officer. The Manual of Office Procedure also does not say so. Secondly the Link Director while forwarding the file to Joint Secretary specifically made an endorsement "May kindly see before issue". He was thus conscious of the matter which he was forwarding to Joint Secretary and he thus put a note of caution for the Joint Secretary.
374. At this stage, I may however mention that in the present case what is being examined is the role played by the three accused MOC officers in the coal block allocation process in as much as whether the same constitutes any criminal offence or not. The role and responsibility of either PW-13 V.S. Rana or that of other officials of CA-I, Section is being referred only to the extent as is necessary to appreciate the role played by the three accused MOC officers.
375. Apart from the aforesaid circumstances, I may also state that both DW-10 K.C. Samria and DW-11 K.S. Kropha stated in their deposition that to scrutinize the applications for their eligibility was the job of Screening Committee. If that be so then the record of MOC is completely silent as to whether the Screening Committee ever scrutinized the applications for their eligibility or not. The two accused persons themselves highlighted the said eligibility conditions viz. the applicant should be a registered company or that it should be engaged in one or the other end uses i.e. generation of power, CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 270 of 350 production of iron and steel or cement. Yet another eligibility condition was that the applications ought to be received in MOC by the last date i.e. 12.01.2007. Though there are certain issues dealt with in the files of MOC, where clarifications were sought from Secretary Coal as to whether last date of receipt of applications in the light of request made by certain applicant companies be extended or not. However there is no noting in any of the MOC files as to whether any enquiry was made at any point of time either by the senior MOC officers or by the Screening Committee regarding checking of applications for their completeness or that the eligibility of the applicant companies was checked or not. One may refer back to the guidelines titled "Processing of Application" wherein it has been clearly provided that the applications so received shall be checked for their completeness and eligibility. Thus if the applications were to be checked for eligibility by the Screening Committee as deposed to by DW-10 K.C. Samria and DW-11 K.S. Kropha and as per the consistent stand of all three accused MOC officers, the applications were to be checked for completeness by CA-I, Section then the guidelines were completely silent in this regard. In such a situation the guidelines ought to have stated under "Processing of Application" itself that while the applications will be checked for completeness by CA-I, Section but qua eligibility the applications will be scrutinized by the Screening Committee.
376. However in view of the aforesaid nature of stand taken by both DW 10 K.C. Samria and DW-11 K.S. Kropha in their deposition it CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 271 of 350 would be difficult to presume or conclude that to check the applications for their completeness and eligibility in terms of the guidelines titled "Processing of Application" was the sole responsibility of officers/officials of CA-I, Section only.
377. The important question which however arises for consideration is as to why the MOC despite being headed by a senior and well experienced IAS officer or having other senior Indian Administrative Service officers looking after the work of important sections/Wings in MOC relating to coal block allocation matters and despite being aware of the important nature of work being dealt with by them chose to put an adhoc system to deal with the applications so received by MOC seeking allocation of captive coal blocks. The answer in the overall facts and circumstances appears to be only that the aforesaid attitude of accused MOC officers towards the coal block allocation process was part of a well designed strategy by them to keep the field open so that they may exercise their discretion at a later stage in favour of any applicant company they may choose to.
378. However in this regard if one was to say that it was due to inefficiency or incapability of the officers at the helm of affairs in MOC as was submitted by Ld. Counsels for the accused persons then this Court would seriously not believe the said claim. Though during the course of final arguments or rather during the course of trial it used to be repeatedly urged by Ld. Counsels for accused MOC officers that all these lacunas in different coal block allocation matters may be the result of inefficiency or incapability of the officers of MOC but there CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 272 of 350 was no criminal element involved in their said action.
379. However in the overall facts and circumstances of the case as discussed above coupled with the vast experience which the three accused MOC officers were having at their command, it can not be stated by any stretch of imagination that the aforesaid casual and adhoc nature of arrangement put in place in MOC to deal with coal block allocation matters was on account of inefficiency or incapability of the senior officers of MOC. However, it will not be wrong to say if the attitude of senior MOC officers in dealing with the coal block allocation matters is termed as that of "WHO CARES".
380. Moreover as earlier also discussed, by not undertaking any such checking of applications for their completeness and eligibility the field was sought to be kept open by MOC officers whereby none of the applicant companies will ever be ruled out either on the ground that their application is not complete in terms of the guidelines issued by MOC or that they were not eligible for allocation of a captive coal block and thereafter in the Screening Committee they will have an open field to arbitrarily exercise their discretion in favour of any applicant company. In fact from a perusal of the minutes of 36th Screening Committee Ex. 13/L (colly) (D-6A) it is clear that objectivity and transparency were two alien concepts to the working of Screening Committee. As admitted by both DW-11 K.S. Kropha and DW-12 H.C. Gupta, the minutes Ex. 13/L (colly) of 36th Screening Committee meeting were completely silent as to on what ground A-1 M/s KSSPL was recommended for allocation of a coal block or M/s CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 273 of 350 BLA power Ltd. i.e. the company which was recommended by Government of Madhya Pradesh was not recommended. Nothing can even be ascertained from the minutes as to why other applicant companies who had applied for Thesgora-B/ Rudrapuri coal block were not recommended for allocation of the said coal block. Similar is the situation with respect to recommendation made by 36th Screening Committee even qua other coal blocks in favour of other applicant companies.
381. During the course of trial Ld. Counsels for the accused persons though tried to point out various factors on which the other applicant companies who had applied for Thesgora-B/ Rudrapuri coal block could not have been recommended for allocation of the said coal block or as to why A-1 M/s KSSPL alongwith M/s Revati Cement Pvt. Ltd. were the only two most appropriate companies who could be recommended by Screening Committee for joint allocation of Thesgora-B/ Rudrapuri coal block. It was also submitted that since Thesgora-B/ Rudrapuri coal block was reserved for non-power sector so M/s BLA Power Ltd. who intended to establish a power project could not have been recommended for the said coal block.
382. However in this regard it would be suffice to state that even if all the aforesaid arguments being now put forth during trial by Ld. Counsels for the accused persons are considered as correct then also the fact remains that the minutes of 36th Screening Committee are completely silent in this regard. It is no where ascertainable from the records as to what prevented 36th Screening Committee in CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 274 of 350 recording the reasons as to why M/s BLA Power Ltd. though recommended by Government of Madhya Pradesh was not being recommended by the Screening Committee for Thesgora-B/ Rudrapuri coal block or as to why from amongst 10 applicant companies A-1, M/s KSSPL and M/s Revati Cement Pvt. Ltd. are only being recommended. Though the MOC officers have now argued that all relevant factors for deciding inter-se priority were duly taken into consideration but as is reflected from the minutes Ex. PW 13/L (colly). The said fact is no where ascertainable. DW-12 H.C. Gupta however further stated that whenever there used to be unanimity qua any coal block then as Chairman A-4 H.C. Gupta he used to announce the recommendation of the Screening Committee but where there used to be no such unanimity then the decision used to be arrived at by way of broad consensus. It was however claimed by A-4 H.C. Gupta and A-5 K.S. Kropha, that the detailed reasons were not mentioned in the minutes as all the members of the Screening Committee were at unanimity qua all the recommendations. However DW-13 Shivraj Singh who was present in the 36th Screening Committee meeting as a representative of Government of Jharkhand categorically stated that in cases where there used to be no unanimity then Chairman Screening Committee used to announce recommendation of Screening Committee after hearing the views of all and such recommendations used to be on the basis of broad consensus which used to develop during the course of discussion. Thus from the deposition of DW-13 Shivraj Singh, a witness examined by A-4 H.C. Gupta, only it is clear that there were certain recommendations of CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 275 of 350 Screening Committee which were based on broad consensus only as emerged during the course of discussion but the said recommendations strictly speaking were not unanimous in nature. However a bare perusal of minutes Ex. PW 13/L (colly) (D-6A) of 36th Screening Committee meeting shows that nothing is ascertainable as to which of such recommendations of Screening Committee were not unanimous or were simply based on broad consensus. In fact the word "unanimous" or there being unanimity in the recommendations so made is completely missing from the minutes.
383. At this stage it would be pertinent to reproduce the minutes Ex. PW 13/L (colly) (D-6A) of 36th Screening Committee meeting as the same will give a clear and better understanding of the nature of proceedings which took place in the various meetings of 36th Screening Committee. (As already mentioned common minutes of all 5 meetings of 36th Screening Committee were prepared after the last meeting as was held on 03.07.2008) "MINUTES OF THE 36TH MEETING OF THE SCREENING COMMITTEE HELD ON 7TH-8TH DECEMBER 2007, 7TH-8TH FEBRUARY 2008 AND 3RD JULY 2008 IN NEW DELHI TO CONSIDER ALLOCATION OF 23 COAL BLOCKS EARMARKED FOR NON-POWER SECTOR **** The 36th meeting of the Screening Committee for screening applications submitted by the applicants for allocation of coal blocks earmarked for allocation to specified end-uses other than power was held on the 7 th-8th December 2007 and 7th February, 2008. The Secretary (Coal) gave the background relating to advertisement, total 674 applications were submitted by 184 companies for allocation of coal blocks earmarked for non-power sector. Some companies had applied for more than one block and some had submitted more than one application for a single block for different end-use plants located at different CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 276 of 350 locations. The applications of the companies were sent to the Central Ministries of Steel, Commerce and Industry (Department of Industrial Policy and Promotion) etc and the concerned States where the blocks are located and also to the States where the proposed end use projects are located, for their comments. He pointed out that in exercise to screen the proposals and advised the members to take note of minute details of each application, for taking collective decision. He further drew the attention of the Committee members to the guidelines (which are displayed on the website of the Ministry) on the matter of allocation of coal blocks notified along with the officer notice. It was also explained that the inter-se priority among the applicants for allocation of coal blocks is to be determined on the basis of the criteria of suitability of the block to the requirement of the end use plant, techno-economic viability of the project, level of progress is setting up of the end- use project by the applicants, track record and financial strength of the company, recommendations of the Administrative Ministry and the State Governments concerned etc. It was decided that all the applicants would be given an opportunity to present their case one by one and thereafter the Committee would discuss and make it s recommendation in respect of each block. In case an applicant has applied for more than one block, he would make his presentation for all the applied blocks together.
2. Accordingly, the Committee screened the proposals of the applicants on three days i.e. on 7th and 8th December 2007 and 7th February 2008. The applicant companies were invited int eh alphabetical order to make their presentation with regard to information given in the application form and to clarify points, if any, raised by the members. The list of members of the Screening Committee that attended the meeting is placed at Annexure-I. The list of the representatives of the applicant, companies that appeared before the Committee is given at Annexure-II.
3. The committee met again on 8th February, 2008 to finalise its recommendation. However, there were some differences of opinion amount the Committee members with regard to accommodation of prospective allocatees in coal blocks based on mine capacity or minable reserves. Accordingly, a decision was taken to get the mine capacity and reserves reassessed by CMPDIL. The report received from CMPDIL was circulated to the members of the Committee for their comments. The members had taken note of the revised details of reserves etc. for giving their views.
4. The 23 coal blocks (4 coking and 19 non-coking) under CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 277 of 350 consideration were - Urtan, Beharaband North Extn., Tandsi-III & Tandsi-III extn., Urtan North (coking blocks), Macherkunds, Rajhara North (Central & Eastern), Moira-Madhujore (North & South), Datima, Bhaskarpara, Kudari, Bikram, Vijay Central, Rajgamar Dipside (South of Phulakdih Nala), Kesla North, Gondkhari, Kappa & Extn. Dahegaon-Makardhokra-IV, Bander, Hurilong, Hutar Sector C, Rajgamar Dispside (Deavnara), Tehsgora-B/Rudrapuri and Andal East (Non Coking blocks). The status of geological reserves of 23 blocks is given at Annexure-III, the mine capacities and extractable reserves of b locks are only tentative. Some blocks are either partially explored or only regionally explored. The share of quantities among the joint allocatees shall remain in the same proportion subsequent to exploration, formulation of GR and approval of mining plan.
5. The details of each applicant company in respect of core business, proposed capacity of end-use plant, location etc. as per the application forms are given at Annexure-IV.
6. Some of the companies did not appear for presentation despite the notices issued to them through individual letters, as well as through the Ministry's web-site. However, their applications were also considered by the Screening Committee as per the information submitted by them in their application forms.
7. In the meeting of the Screening Committee convened on rd 3 July 2008, the Secretary (coal) informed the members that there were a few issues which need to be brought to the notice of the Committee. The were as follows:-
i) Representations were received from some companies, which were not able to present their case due to delay in receipt of notice, to be considered in the meeting. The following companies have made the representation:
• M/s Shanno Business • M/s Shanti GD Ispat • M/s Special Blasts Limited • M/s Eastern Steel and Power Limited Though the notices were issued individually and was also placed in the Ministry's Website, however, keeping in view the request made by the above companies, the information submitted by them was placed before the Screening Committee for consideration of their cases also, along with the others.
ii) Modification in the boundaries of Moira Modhujore and Behraband North Extn. Coal blocks offered for allocation;
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 278 of 350
(iii) SECL and CMPDIL have intimated that the reserves in the Kudri block have been exhausted. Therefore, it may not be considered for allocation.
The Screening Committee took note of the information submitted by the above companies for consideration and also change in the status of blocks offered for allocation.
8. (i) The Chairman then invited the Joint Secretary, Ministry of Steel to brief the members about the rationale followed by the Ministry of Steel for evaluating the applications relating to sponge iron, pig iron and steel projects. The Joint Secretary, MoS explained that the present capacity of steel production in the country is around 60 MT and the Ministry of Steel is projecting a capacity expansion of 6% to 7% int eh immediate future. Therefore, the blocks be allocated to those companies which are genuine, technically and financially sound to take up the project and where capacity addition is expected to be accomplished by the year 2010. These companies need to be encouraged with assured supply of coal as raw material and those who are not expected to set up the projected capacities based on their track record etc. should be discouraged. Allocation of coal block to smaller players though desirable, but keeping in view their technical and financial constraints, it would be difficult for them to get the block developed in a time bound manner. He suggested that the requirement of small producers, which are genuine, should be met through linkages granted from CIL subsidiaries. He further stated that priority for allocation of coking coal blocks may be determined in the following order:-
I. To those companies which have integrated steel plants without any coking coal block;
II. To those companies which are opting for blast furnace route, and the end use plants are likely to be commissioned by 2010; III. To those big companies, which are yet to commission their plants, but are opting for blast furnace route;
IV. Stand-alone pig iron producers supplying foundry grade pig iron may not be considered for coking coal blocks.
(ii) It was further suggested that for cling coal blocks, companies with minimum capacity of 0.5 MTPA and for non- coking coal blocks, DRI plants with minimum capacity of 0.3 MTPA be given priority in view of scarcity of resource, it was suggested that ceiling of maximum end use plant capacity of 2 MTPA for coking coal blocks (coal requirement 2 MTPA) and 1.2 MTPS for non-coking coal blocks (Coal requirement 1.96 MTPS) be imposed to ensure equitable distribution of CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 279 of 350 resources. This has been arrived at by multiplying the minimum capacity by a factor of 4 (four) and keeping in view that maximum applicants have applied for plant capacities in range of 0.3-1.0 MTPA (for DRI route) and 0.5-1.5 MTPS (for Blast Furnace route).
9. Representative of DIPP observed that since hardly any blocks were allocated to cement plants in the past this sector should get a higher share in this round, as large number of established companies have applied for coal blocks. He further advised that preference may accorded to cement plants with minimum capacity of 2 MTPA.
10. Chief Secretary Government of Chhattisgarh expressed the view that as per the past trends, major players have been getting the coal blocks but the smaller players are not getting coal blocks for the reason of smaller capacity and weaker financial strength compared to major players. For this reason, they are finding it difficult to compete with those bigger companies which are enjoying assured raw material at a lower coast for captive iron ore and coal mines. Therefore he suggested that the interest of smaller players may be taken care of by allocating coal blocks to consortium formed by these companies. The representative from the State Governments reiterated that location of end-use project within the coal bearing State and a Memorandum of Understanding (MOU) with that State Government should e the main consideration for allocation of coal blocks. The Chairman observed that while the views expressed by the State Governments would be given due weightage, these cannot be accepted as the sole basis or a mandatory qualifying prerequisite for allocation of coal blocks. This would not be in conformity with the guidelines laid down for allocation of coal blocks. There are many other factors which would have to be taken into account before the Screening Committee makes its recommendations. Coal is a national resource, and needs to be tapped optimally to sub-serve the economic interest of the whole country. However, he assured the representatives of the State Govts. That the Committee would take into consideration the interests of State Govts. As well.
11. The Screening Committee suggested that in case of allocation to consortium companies, it should be ensured that consortium is a well defined entity in terms of equity participation by the member units. It was, therefore, decided that thorough verification be made about the consortium in terms of number of participants, equity participation, end use capacity, coal requirement etc. before the allocation of coal CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 280 of 350 block to consortium company is made.
12. After detailed deliberations the parameters suggested by the Ministry of Steel and Department of Industrial Policy and Promotion, were agreed to. It was also accepted that an upper cap on projected capacity should be placed in order to secure more equitable distribution of limited resources. Therefore, ceiling of 1.2 MTPA for DRI, 2 MTPA for Steel and 4 MTPA for cement were agreed upon. It was also decided that in case companies have been allocated blocks in the past for the same project, then reserves allocated for such blocks may be adjusted while assessing the total requirement and share of coal of such companies.
13. The Screening Committee, thereafter, deliberated at length over the information furnished by the applicant companies in the application forms, during the presentations and subsequently. The Committee also took into consideration the views/'comments of Ministry of Steel, Department of Industrial Policy and Promotion, State Governments concerned, guidelines laid down for allocation of coal blocks, and other factors as mentioned in paragraphs 8 to 12 above, as regards inter-se distribution of shares among the joint allocattees, it was decided by the Committee that capacity of end-use projects shall be determined as follows:
i) The capacity indicated in the application form;
ii) The capacity indicated in the MoU entered into between the applicant company and the State Govt. concerned, wherever applicable;
iii) The realistic capacity addition likely to materialize by the year 2010, as assessed by the nodal Ministry/Department concerned;
Whichever is the lowest.
14. Based on the data furnished by the applicants, and the feedback received from the State Governments, the Ministry of Steel and Department of Industrial Policy and Promotion, the Committee assessed the applications having regard to matters such as techno-economic feasibility of end-use project, status of preparedness to set up the end-use project, past track record in execution of projects, financial and technical capabilities of applicant companies, recommendations of the State Governments and the Administrative Ministries concerned etc. the Screening Committee, accordingly decided to recommend for allocation of coal blocks in the manner as follows:
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 281 of 350 S. State Name of Geological Tentative Mine Name of End Use Location Share No. the Block Reserves Extractable Capacity Company Plant Reserves Capacity (in MTPA) 1 2 3 4 5 6 7 8 9 10 BLOCKS EARMARKED FOR PIG IRON (Coking coal) 1 2
3...
BLOCKS EARMARKED FOR OTHER END USES - NON COKING COAL 1 2
3....
15. A signed copy of the recommendations of the Screening Committee is placed at 'Annexure-V'.
The meeting ended with a vote of thanks to the Chair."
384. Thus the minutes Ex. PW 13/L (colly) as reproduced above clearly shows that the same are completely sketchy in nature and are also completely silent about any discussion which is stated to have taken place during the meeting qua allocation of various coal blocks. Moreover if the claim of accused persons that as all the decisions of the Screening Committee were unanimous so the details of the discussion which took place were not mentioned is believed even for the sake of arguments, then also the minutes Ex. PW 13/L (colly) are also silent even about this fact. The word "unanimous" or the phrase that the decision of Screening Committee were arrived at with unanimity of all members present are completely missing from the minutes. It is in these circumstances, it will be worthwhile to once again refer to the observations of Hon'ble Supreme Court as were made in the order dated 25.08.2014 in Manohar Lal Sharma case (Supra) as regard the nature of minutes of 36th Screening Committee.
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154. To sum up, the entire allocation of coal block as per recommendations made by the Screening Committee from 14.07.1993 in 36 meetings and the allocation through the Government dispensation route suffers from the vice of arbitrariness and legal flaws. The Screening Committee has never been consistent, it has not been transparent, there is no proper application of mind, it has acted on no material in many cases, relevant factors have seldom been its guiding factors, there was no transparency and guidelines have seldom guided it. On many occasions, guidelines have been honoured more in their breach. There was no objective criteria, nay, no criteria for evaluation of comparative merits. The approach had been ad- hoc and casual. There was no fair and transparent procedure, all resulting in unfair distribution of the national wealth. Common good and public interest have, thus, suffered heavily. Hence, the allocation of coal blocks based on the recommendations made in all the 36 meetings of the Screening Committee is illegal. "
(Emphasis supplied by me)
385. The question which next arises for consideration in these circumstances is that if no such scrutiny or review of the process so undertaken by MOC in allocating various coal blocks for captive use to different applicant companies was carried out in the Courts then whether the record of MOC or even that of Screening Committee reflects that there was objectivity and transparency in the entire coal block allocation process. The answer is a big "No". The accused MOC officers can not claim that even though the minutes Ex. PW 13/L (colly) are silent about reasons for recommending allocation of any coal block in favour of any given applicant company but if someone would have questioned them then they would have explained the said reasons or basis of their decision. Such a claim, if made would not be even worth considering.
386. Thus if such important nationalised natural resources of the CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 283 of 350 country are dealt with in such a vague and arbitrary manner then the accused MOC officers can not ever complain, if their actions are subject of judicial scrutiny either with a view to assess whether their actions constitute any civil wrong or the same were actuated with any malice or malafide intention. The coal block allocation process which finally led to allocation of Thesgora-B/Rudapuri coal block in favour of A-1 M/s KSSPL was clearly handled by MOC officers both in MOC as well as in Screening Committee as if their actions can never be subject of any such judicial scrutiny. On the other hand no such judicial scrutiny can be possible if from the entire process it is not ascertainable as to what prevailed either in MOC or in the Screening Committee which led to making of recommendations for allocation of various coal blocks in favour of different applicant companies. The reasons will then have to be gathered from the overall facts and circumstances and especially from the manner in which the entire issue of coal block allocation has been dealt with by Ministry of Coal officers. Their intention in so handling or dealing with such an important matter involving large public interest will also be gathered from all such circumstances only.
387. At this stage, it would be apt to refer to the following passage of Justice Holmes in United States Vs. Wurzbach 1930 (280) US
396.
"Whenever the law draws a line there will be cases very near each other on opposite sides. The precise course of the line may be uncertain, but no one can come near it without knowing that he does so, if he thinks, and if he does so it is familiar to the criminal law to make him take the risk."
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388. At this stage, it would be also worthwhile to mention that since the guidelines were laid down by MOC itself to govern the allocation of captive coal blocks to various applicant companies so it was equally binding upon the MOC as it was on the applicant companies. Thus the applications were to be submitted by applicant companies in accordance with the said guidelines and the method of processing of applications in MOC was also spelled out in the said guidelines with a view to inform the public at large as to how MOC proposes to deal with their applications or in other words as to how MOC proposes to allocate the Nationalised natural resources of the country i.e. coal. Thus undoubtedly the said guidelines were equally binding mandatorily upon both MOC and the Screening Committee. It also need not be re-emphasized that the entire issue involved great public interest as the property involved i.e. coal was an important raw material for the industrial development of the country. Major industrial houses of the country were having interest in the allocation of said captive coal blocks.
389. In fact at a later stage, I shall be also discussing that apart from the issue that applications were not checked for their completeness and eligibility as mandated by the guidelines, even the subsequent part of the guidelines which talked of various factors on which inter-se priority from amongst competing applicant companies was to be arrived at was also not followed. Thus from the over all facts and circumstances of the case it is clear that irrespective of the claim of accused MOC officers that PW-13 V.S. Rana, Under CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 285 of 350 Secretary, MOC, is now improving upon his earlier statements made to the IO in order to save his own skin, they themselves i.e. the accused MOC officers are also now furnishing various reasons or explanations for non-compliance with the guidelines only with a view to cover their follies as committed by them in the entire coal block allocation process. Undoubtedly as contrasted to PW-13 V.S. Rana who is a prosecution witness the three MOC officers i.e. A-4 H.C. Gupta, A-5 K.S. Kropha and A-6 K.C. Samria being accused are entitled to take as many plea(s) of defence as may be permissible to them under the law. However as is evident from my aforesaid discussion, none of the said plea of defence taken by the accused persons is either cogent, convincing or reliable even for the sake of preponderance of probability in as much as they have miserably failed in making any dent in the evidence led by prosecution to prove various circumstances.
(G) Whether the recommendation of 36th Screening Committee were unanimous in nature.
390. It has been the constant and consistent stand of A-4 H.C. Gupta and A-5 K.S. Kropha that during the Screening Committee meeting held on 03.07.2008 detailed discussion were held qua the claim of each of the applicant company when the issue of allocation of various coal blocks were individually taken up. It was also submitted that since the recommendation of Screening Committee were unanimous in nature so in accordance with the letter and spirit of Para 54 (4) (c) of Manual of Office Procedure the essence of CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 286 of 350 outcome of the deliberations was duly recorded. As regard non- mentioning of reasons for choosing one or the other company from amongst many applicant companies for any given coal block it was submitted that had such detailed discussion was to be mentioned then the minutes would have run into hundreds of pages. While referring to the deposition of various prosecution witnesses as well as that of DW-13 Shivraj Singh, it was submitted that all the members were free to air their views and there was no restriction on anyone to give any contrary or conflicting opinion. It was also submitted that at the conclusion of the meeting held on 03.07.2008 recommendation sheets containing final decision of the Screening Committee were prepared and all the members so present duly signed the said recommendation sheets without recording any objection or dissenting views. It was also submitted that even subsequent to the Screening Committee meeting held on 03.07.2008, no objections were received from either Administrative Ministries or from the State Governments concerned or from any other member of Screening Committee regarding the final recommendations so arrived at by the Screening Committee. It was also submitted that in the minutes itself, it is clearly mentioned in para 14 that the Committee assessed the applications having regard to matters such as techno-economic feasibility of end use project, status of preparedness to set up the end use project, past track record in execution of project, financial and technical capabilities of applicant companies, recommendations of the State Governments and the Administrative Ministries concerned etc. CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 287 of 350
391. However before I advert on to discuss the circumstances under which the 36th Screening Committee appears to have made its recommendations, it would be appropriate to first discuss the nature and purpose of constitution of Screening Committee. Admittedly the Screening Committee was constituted with a view to expedite the captive coal block allocation process. While MOC was the Nodal Ministry for allocation of coal blocks but the views of Administrative Ministries such as Ministry of Power, Ministry of Steel, DIPP were important as the coal blocks were proposed to be allocated to those companies who were engaged in either generation of power or production of iron and steel or cement. Thus as the end use projects pertained to the jurisdiction of said other Administrative Ministries so their views were certainly important in considering the issue of allocation of various coal blocks to different applicant companies engaged in production of one or the other end use products. Similarly the views of the State Governments where either the coal blocks proposed to be allotted or the existing or proposed end use plant was established/to be established were equally important. Similarly the views of CMPDIL or CIL or its other subsidiary companies were important from the point of view of obtaining technical details of the coal blocks proposed to be allocated or the progress made by any applicant company, if previously allocated any coal block. An effort was thus made by Government of India to constitute such an inter- departmental body called Screening Committee so as to screen the proposals of various applicant companies by obtaining views/comments of all concerned at one single place and thereafter CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 288 of 350 to make recommendation for allocation of various coal blocks in favour of different applicant companies in an objective and transparent manner. It was in order to achieve the said objective only that MOC framed detailed guidelines and brought them to the notice of the public at large as to in what manner the applications will be received in MOC or in what manner they shall be processed or how the inter-se priority amongst various applicant companies for any given coal block shall be decided.
392. Thus keeping in view the aforesaid objective for which the Screening Committee came to be constituted i.e. to screen the proposals received for captive mining in an objective and transparent manner, all the applicants were directed to submit their applications in five copies. Four copies thereof were accordingly sent to concerned Administrative Ministry(ies) and to the concerned State Government(s) beside also sending one copy to CMPDIL. One copy of the application was however retained in MOC. Thus one set of applications of all such companies which were either having an existing steel plant or were proposing to establish a sponge iron plant was sent to Ministry of Steel and not to Ministry of Power. Similarly one set of applications of all such companies who were proposing to establish a power project was sent to Ministry of power and not to Ministry of Steel or to any other Administrative Ministry. Similar was the situation qua the applications of companies proposing to establish an end use project in cement sector. Copy of their application was sent only to DIPP for comments and not to Ministry of Power or Steel.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 289 of 350 On similar lines, one copy of the applications was sent to only those State Governments where any given coal block was situated qua which applications were submitted by the company(ies) or their existing end use plant was situated or any end use plant was proposed to be established. In this manner the copy of applications of all the applicant companies was sent only to concerned State Governments and to concerned Administrative Ministries and not to all State Governments or Administrative Ministries who were members of Screening Committee.
393. Thus from the aforesaid circumstances it is clear that in the Screening Committee meetings, representative of any given State Government was not concerned with application of any such company who was neither applying for any coal block situated in the said state nor was proposing to have its end use project in the said State. Admittedly application of any such company was not even sent to those states. Similarly the Administrative Ministries were also not concerned with the applications of all such companies who were neither engaged nor were proposing to engage in any end use product relating to their Ministry. A natural consequence of the aforesaid scheme of arrangement was that such state governments or Administrative Ministries were neither having any knowledge of the claims of the applicant companies qua any factor much less their financial strength or their technical capabilities or progress made by them towards establishing their end use project nor they were concerned as to for which coal block any such given applicant CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 290 of 350 company is being recommended as long as the said coal block is not situated in their state.
394. If in the aforesaid circumstances the constitution and working of Screening Committee is seen and visualized then it emerges out as an irresistible conclusion that the Screening Committee was though constituted as a large broad based inter-departmental committee but in its actual functioning it was working as a conglomeration of various small Screening Committees. Thus in its actual working whenever discussion qua any given coal block used to take place in the Screening Committee then applications of only those companies who had applied for the allocation of said coal block used to be considered. Officers of MOC however used to participate in the discussion qua every coal block and also qua each of the applicant companies being the representatives of Nodal Ministry. On the other hand representatives of only such State Governments used to participate in the discussion in whose states either the given coal block under discussion was situated or the applicant companies being considered were proposing to have their end use project in their state. Similarly representative of any Administrative Ministry used to participate in the discussion only qua such companies who were either already engaged or were proposing to engage in an end use product relating to the said Administrative Ministry. It is important to understand the aforesaid working of Screening Committee since it will help in better understanding the claim raised by Ld. Counsels for accused persons that the decisions made in the Screening CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 291 of 350 Committee were unanimous in nature as while signing the recommendation sheets the various members of Screening Committee did not raise any objection. However from the aforesaid nature of working of Screening Committee it becomes crystal clear that in the discussion which took place in the Screening Committee meeting held on 03.07.2008 qua any given coal block and while considering applications of various applicant companies who had applied for the said coal block under discussion only members of such smaller Screening Committee would have participated and none else. Thus representative of Ministry of Steel could have given his opinion or views only qua such companies who were either having any existing sponge iron or steel plant or were proposing to establish any such plant. Similarly representative of DIPP could have given his views/comments only qua such companies who were either having any existing cement plant or were proposing to establish any such cement plant. Similarly as Thesgora-B/Rudrapuri coal block was situated in the state of Madhya Pradesh so the representative of the state of Madhya Pradesh would have been interested in the discussion qua each of the applicant companies who were seeking allocation of Thesgora-B/Rudrapuri coal block situated in their state. The representative of all other State Governments would be interested in the discussion only if any, of the applicant company seeking allocation of Thesgora-B/Rudrapuri coal block was either having any existing end use project or is proposing to establish its end use project in their state. Thus other members of the Screening Committee would have no concern with any such discussion for they CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 292 of 350 were neither having any information about the applicant companies or about their proposed end use project nor any information qua the coal block under discussion for it was not situated in their state. Admittedly applications of all such companies were not even sent to them by MOC.
395. Thus if in the light of these circumstances the signing of various recommendation sheets are seen at the end of the meeting held on 03.07.2008 then it is found that all the members of the Screening Committee present have signed recommendation sheets qua each of the coal blocks irrespective of the fact whether the said coal block was situated in their state or not or the companies recommended for allocation were having any existing end use project or were proposing to establish their end use project in their state or not. Similarly representative of all Administrative Ministries signed the recommendation sheets irrespective of the fact as to whether the recommended companies were either engaged or were proposing to engage in any end use product relating to their Ministry or not. Thus the factum of signing of said recommendation sheets can at the most signify that such a decision was taken in the Screening Committee meeting on that day but in no way the signing of said recommendation sheets by all members present can signify that the said decisions were unanimous in nature. It is in these circumstances only that the contention that none of the Screening Committee members while signing the recommendation sheets did not raise any objection needs to be seen and appreciated.
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396. In this regard it would be now worthwhile to refer to the deposition of PW-11 S.K. Mishra who as Secretary Mineral Resources Department, Government of Madhya Pradesh had attended Screening Committee meeting held on 03.07.2008. He stated that when he went to attend the Screening Committee meeting then he was carrying alongwith him copy of the recommendation which was earlier sent by Government of Madhya Pradesh to MOC qua various coal blocks situated in the state. He denied that at that time he was carrying the entire file of Government of Madhya Pradesh with him. He further stated that during the course of Screening Committee meeting various coal blocks were taken up for discussion in seriatum. He however stated that at the time of discussion qua Thesgora-B coal block he reiterated recommendation of Government of Madhya Pradesh as was made in favour of M/s BLA Power Ltd. but stated that after discussion as was evident from para 10 of the minutes of the meeting it was decided that the recommendation of state Government of Madhya Pradesh can not be accepted. He also stated that discussion qua Thesgora-B coal block took place between him and MOC officers i.e. H.C. Gupta, Secretary Coal, K.S. Kropha, Joint Secretary Coal and K.C. Samria, Director, MOC. He however claimed ignorance as to whether representative of the Administrative Ministry participated in the discussion or not. He also stated that while he signed the attendance sheet at the beginning of the meeting but later on when the recommendation of the meeting were finalised then he signed the recommendation sheets only as a token of participating in the CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 294 of 350 meeting. However in his cross-examination he denied the suggestion that during the Screening Committee meeting the net-worth of various applicant companies or status of end use project or the techno economic feasibility report or the financial status of the applicant companies was discussed. He also claimed ignorance as to whether any comprehensive appraisal of applicant companies was sent to Screening Committee by the Administrative Ministries or not as he stated that no such document was supplied to him. He also denied the suggestion that the decision of the Screening Committee was unanimous. In his cross-examination this witness also denied the suggestion that he was competent to take any decision in the Screening Committee meeting either on behalf of his department or on behalf of Government of Madhya Pradesh as he stated that he was deputed only to communicate the decision i.e. recommendation already made by Government of Madhya Pradesh. He also denied having given any merit list of various applicant companies to the Screening Committee on the basis of any points assigned to them by Government of Madhya Pradesh. He also specifically stated that the final decision of the Screening Committee qua Thesgora-B coal block was not with his consent. He also denied that he did not record any objections in the recommendation sheet while putting his signatures over there only because the decision of the Screening Committee was unanimous.
397. At this stage, I would like to mention that it is the claim of the accused persons that PW-11 S.K. Mishra had come to attend the CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 295 of 350 Screening Committee meeting on 03.07.2008 carrying alongwith him the entire file of Government of Madhya Pradesh wherein detailed chart assigning different marks to various applicant companies was available. It is also their claim that as Thesgora-B/Rudrapuri coal block was reserved for non-power sector companies and M/s BLA Power Ltd. was proposing to establish a power project so it could not have been recommended for the said coal block and accordingly the next two best placed companies as per the chart available in the file of Government of Madhya Pradesh i.e. M/s Revati Cement Pvt. Ltd. and A-1 M/s KSSPL were recommended jointly for Thesgora- B/Rudrapuri coal block. Though as already mentioned PW-11 S.K. Mishra has categorically denied the suggestion that while coming to attend the Screening Committee meeting he was carrying alongwith him the entire file of Government of Madhya Pradesh but even if it is presumed for the sake of arguments that PW-11 S.K. Mishra was indeed carrying the entire file with him then also the minutes of 36th Screening Committee meeting Ex. PW 13/L (colly) are completely silent as to the reasons for which M/s BLA Power Ltd. was not recommended or as to why M/s Revati Cement Pvt. Ltd. or A-1 M/s KSSPL were recommended. The minutes are also silent that status of next two most suitable companies was ascertained not only as per the criteria adopted by State Government of Madhya Pradesh but also from the file of Government of Madhya Pradesh as was available with PW-11 S.K. Mishra. It is not in dispute that the application of M/s BLA Power Ltd. was sent to Government of Madhya Pradesh for its views/comments by MOC only. It is also not in dispute that M/s BLA CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 296 of 350 Power Ltd. appeared before 36th Screening Committee which was constituted to screen proposals of non-power sector companies only. It is also not in dispute that M/s BLA Power Ltd. also made a presentation before the Screening Committee. Though the circumstances in which M/s BLA Power Ltd. came to be invited for presentation before 36th Screening Committee meeting are also not beyond the shadows of suspicion. There is on record a letter written by M/s BLA Power Ltd. dated 10.10.2007 Ex. PW 13/O (At page 153 in D-9) addressed to A-6 K.C. Samria. In the said letter M/s BLA Power Ltd. had requested A-6 K.C. Samria while making a reference to a meeting which its Managing Director Sh. Anup Aggarwalla had with A-6 K.C. Samria on 08.10.2007, that their application may be sent to Ministry of Power for their views. There is however also available on record, one typed note dated 08.10.2007 (available at page 152 in D-9). In the note it is stated that from out of 38 coal blocks earmarked by Ministry of Coal for allocation, 15 have been specifically earmarked for power sector. From out of remaining 23 coal blocks 4 blocks are earmarked for pig iron producers. As regard other 19 coal blocks it was stated that they were earmarked for "other". It was thus stated that it would be proper for MOC to allot these 19 blocks to power generating companies also as they were not specifically earmarked for any category of end users. Though it is not ascertainable from the said note as to who prepared it but the said note was marked by A-6 K.C. Samria to Under Secretary, CA-I, Section (PW-13 V.S. Rana) on 08.10.2007 itself with an endorsement as follows:
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 297 of 350 "If this is true than we need to send these applications to MOP for their comments."
398. Though the notings in the MOC file shows that a proposal thereafter mooted for sending application of such companies to Ministry of Power was turned down by the then Minister of State for Coal, Sh. Dasari Narayan Rao after both A-4 H.C. Gupta and A-5 K.S. Kropha proposed that these coal blocks reserved for "other" shall be considered only for companies engaged in such end use other than power. However despite such a refusal by Minister of State for Coal admittedly M/s BLA Power Ltd. was invited to make a presentation before 36th Screening Committee and its representative i.e. Sh. Anup Aggarwalla, Managing Director did appear to make presentation before the 36th Screening Committee.
399. Thus the circumstances in which M/s BLA Power Ltd. came to be invited for making presentation before the 36th Screening Committee which was constituted to consider applications of only such companies who were not engaged in generation of power is also a strong indicator not only of the casual manner in which the coal block allocation process was handled in MOC but also raises fingers of suspicion upon the conduct of MOC officers in handling of the entire coal block allocation process.
400. Be that as it may, the fact remains that the application of M/s BLA Power Ltd. was sent to Government of Madhya Pradesh by MOC and after considering various factors, Government of Madhya Pradesh recommended the said company for allocation of Thesgora-
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 298 of 350 B/Rudrapuri coal block. The company M/s BLA Power Ltd. was thereafter also invited by MOC to appear before 36th Screening Committee and to make a presentation and submit a feedback form and the company duly complied with the same. Thus in these circumstances even if the claim of MOC officers that since M/s BLA Power Ltd. was proposing to establish a power project and Thesgora-B/Rudrapuri coal block was reserved for non-power sector companies so it could not have been recommended for the said coal block is accepted as a true and correct reason then also the least which could have been done was to mention these very reasons in the minutes of the meeting. It could have been explained in the minutes itself as to under what circumstances the application of M/s BLA Power Ltd. was sent to Government of Madhya Pradesh or under what circumstances the said company was invited to make presentation before the Screening Committee even though 36th Screening Committee was considering the applications qua only such coal blocks as were reserved for non-power sector companies. Similarly if as per the claim of accused MOC officers, the merits of next two best placed companies i.e. M/s Revati Cement Pvt. Ltd. and A-1 M/s KSSPL were pointed out by PW-11 S. K. Mishra only then again for reasons best known to the accused persons minutes Ex. PW 13/L (colly) are completely silent in this regard. In fact the minutes of 36th Screening Committee as have been reproduced above are so casual and cryptic in nature in as much as nothing is ascertainable as to on what factors any given applicant company as compared to other applicant companies was recommended for CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 299 of 350 allocation of any given coal block by the Screening Committee. It is also not ascertainable from the minutes as to whether the methodology adopted by Government of Madhya Pradesh in assigning various points to different applicant companies as referred to in their files was also considered or not by the Screening Committee members or only the final points as were assigned to various applicant companies were only considered. It is also not ascertainable from the minutes as to in what manner the various factors which were to govern the inter-se priority of the applicant companies and as were mentioned in the guidelines governing allocation of coal blocks issued by MOC were considered.
401. Apart from the aforesaid circumstances, it will be also worthwhile to mention that in the minutes of meeting held on 11.05.2007, it was decided that CMPDIL will carry out an exercise to identify the applicant companies that have minimum net-worth of 20% of the investment required for projected capacity of end use projects. In fact from the draft minutes Ex. DW 12/PX-7 of the said meeting it is clear that Secretary Coal (i.e. A-4 H.C. Gupta) had himself suggested that 20% of the investment required for projected capacities of end use plants may be accepted as a bench mark criteria for first point of scrutiny. However irrespective of the fact as to whether A-4 H.C. Gupta so proposed or not (since in the final approved minutes Ex. PW 13/DX-16 it is not mentioned that this suggestion was proposed by Secretary, Coal, H.C. Gupta) the fact remains that in the meeting held on 11.05.2007 CMPDIL was directed to prepare a chart so as to CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 300 of 350 identify the applicant companies that were having minimum net-worth of 20% of the investment required for projected capacity of end use project. Once again the minutes of 36th Screening Committee Ex. PW 13/L (colly) are completely silent as to whether any such chart was prepared and submitted by CMPDIL or not and if submitted then whether the same was taken into consideration or not. As regard application Ex. PW 1/F (colly) (D-10) of A-1 M/s KSSPL it is clearly evident that for its ultimate capacity of 0.6 MTPA the total proposed investment was stated as Rs. 600 crores. Thus even if the highly inflated claim of A-1 M/s KSSPL regarding its net-worth as on 31.03.2006 i.e. Rs. 64.75 crores is considered then also the company was well short of having 20% minimum net-worth of the investment required for the proposed ultimate capacity of its end use project. Even the highly inflated figure of net-worth of the company was only about 11% of the proposed investment figure of Rs. 600 crores as mentioned in the application itself.
402. I am still not on the issue that the actual net-worth of A-1 M/s KSSPL as already discussed in the earlier part of judgment was much below Rs. 64.75 crores. What is however important to note is that even the said wrongly mentioned figure did not fulfill the criteria as decided by Screening Committee in its meeting held on 11.05.2007 for the first stage of scrutiny.
403. However even if it is argued that CMPDIL was merely asked to prepare a chart and the said criteria was never followed by Screening Committee then in those circumstances it was imperative CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 301 of 350 that if such a fact was mentioned in the initial meeting held on 11.05.2007 wherein all the members of Screening Committee except the State Government representatives were present then a reference ought to have been made in the final minutes Ex. PW 13/L (colly) as to whether such a criteria is being followed or not coupled with reasons for the said decision.
404. The aforesaid various aspects of the entire coal block allocation process are being simply highlighted by referring to various documents which stand conclusively proved on record beside also from the deposition of prosecution witnesses and that of defence witnesses only with a view to show that neither the minutes of meetings of 36th Screening Committee which was admittedly an inter-departmental body were drawn up in accordance with para 54 (4) (c) of Manual of Office Procedure nor they speak of any reason whatsoever for the decision taken during the meeting. Nothing is ascertainable from the minutes as to what factors prevailed with the Screening Committee in recommending one company for allocation of any given coal block as compared to other applicant companies who were also interested in the allocation of said coal block in their favour. Moreover as earlier mentioned the minutes Ex. PW 13/L (colly) are completely silent as to whether the recommendation of Screening Committee were unanimous or were by way of broad consensus. Thus in the overall facts and circumstances as discussed above it can not be presumed that the final recommendations of 36th Screening Committee were unanimous in nature.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 302 of 350
405. At this stage I also deem it appropriate to mention that while this Court has neither got any jurisdiction nor any intention to review the policy laid down by the government of the day which may govern the process of allocation of captive coal blocks to private applicant companies as the same is the exclusive prerogative of the government and lies within their exclusive jurisdiction. It is for the government only to decide as to on what factors or in what manner the Nationalised natural resources of the country will be better distributed and to whom the same shall be allocated. However the important issue to be taken care of is that once a policy has been laid down by the Government in this regard and the executive branch of the Government is directed to implement the same then it can never be claimed that such action of the executive wing can not be subjected to judicial scrutiny. While every action of the executive can be the subject matter of judicial scrutiny unless specifically barred by statute or law framed in this regard but the Court does raise question marks over any such decision so taken by the executive wing if it is found that the same is ultra vires to the guidelines or policy as may be decided by the Government. Thus if such a decision is per-se illegal or is dehors the guidelines or policy laid down governing exercise of such discretion then the Courts of law will be well within their jurisdiction to carry out judicial scrutiny of any such decision or the process of arriving at any such decision. It is in fact this very exercise which was undertaken by Hon'ble Supreme Court vide its detailed order dated 25.08.2014 passed in the case Manohar Lal Sharma case (Supra), consequently resulting in cancellation of all CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 303 of 350 such coal blocks allocated by all the 36 Screening Committees of MOC. Hon'ble Supreme Court made detailed observations about the working of all 36 Screening Committees and the minutes recorded by them. Similar observations were recorded by Hon'ble Supreme Court as regard the minutes of 36th Screening Committee also. The same read as under:
"149. In the 36th meeting, which was held on 07.12.2007-08.12.2007, 07.02.2008-08.02.2008 and 03.07.2008, the Screening Committee considered allocation of 23 coal blocks earmarked for non-power sector. For these 23 coal blocks earmarked for non-power sector, 674 applications were submitted by 184 companies for allocation. Some companies had applied for more than one block and some had submitted more than one application for single block for different end use plants located at different locations. The geological reserve of 23 blocks## was noted by the Screening Committee. The minutes of the 36th meeting show that the Committee decided to recommend blocks earmarked for pig iron (coking coal) jointly to two or more than two companies and nineteen blocks earmarked for other end- uses/non-cooking coal were recommended for allocation to single companies as well as jointly to two or more companies. The minutes of 36 th meeting do not contain the particulars showing consideration of each application. There is no assessment of comparative merits of the applicants who were selected for recommendation. The minutes do not disclose how and in what manner the selected companies meet the norms fixed for inter se priority. Many of the selected companies were neither recommended by the State Government nor by the Administrative Ministry. Some of them were recommended by the State Government but not recommended by the Administrative Ministry while one of them was not recommended by the State Government but recommended by the Administrative Ministry. For Rajhara North (Central & Eastern) coal block, Vini Iron & Steel Udyog Ltd. had no recommendation by the State Government or by the Administrative Ministry. Similarly, for Thesgora-B/Rudrapuri coal block, Revati Cement P. Ltd. did not have recommendation either from the State Government or from the Administrative Ministry. As regards Tandsi-III and Tandsi-III (Extn.), Mideast Integrated Steels Ltd. did not have recommendation from the CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 304 of 350 State Government. Similarly, as regards Thesgora-B/Rudrapuri, Kamal Sponge Steel & Power Limited had no recommendation from the State Government. As regards Moira Madhujore coal block, Ramswarup Lohh Udyog Ltd. had no recommendation from the Administrative Ministry.
150. From the above discussion, it is clear that 21 coal blocks stood allocated to private companies in pursuance of Screening Committee's recommendations during the period from the 1 st meeting held on 14.07.1993 till the 21 st meeting held on 19.08.2003. For the period from 04.11.2003 (22 nd meeting) to 18.10.2005 (30th meeting) in pursuance of Screening Committee's recommendations, 26 coal blocks stood allocated to private companies. Following 32nd meeting held on 29.06.2006/30.06.2006 till the 34 th meeting on 07.09.2006/08.09.2006, in pursuance of the recommendations made by the Screening Committee, two coking coal blocks were allocated to private companies and twelve non-coking coal blocks were allocated to private companies. In pursuance of the recommendations made by the Screening Committee in 35 th and 36th meetings, 33 coal blocks were allocated to private companies. Some of the coal block allocations made to the private companies have been de-allocated from time to time. For consideration of legality and validity of allocations made to such companies, it is not necessary to deal with de-allocation aspect. It needs no emphasis that assuming that the Central Government had power of allocation of coal blocks yet such power should have been exercised in a fair, transparent and non- arbitrary manner. However, the allocation of coal blocks to the private companies pursuant to the recommendations made by the Screening Committee in 36 meetings suffers from diverse infirmities and flaws which may be summarized as follows: 1st Meeting to 21st Meeting
1.. . . . .
. . . . .
2. . . . . .
. . . . .
3. . . . . .
. . . . .
4. . . . . .
. . . . .
5. . . . . .
. . . . .
6. . . . . .
. . . . .
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 305 of 350
7. . . . . .
. . . . .
8. . . . . .
. . . . .
9. . . . . .
. . . . .
22nd Meeting to 30th Meeting
10. . . . . .
. . . . .
11. . . . . .
. . . . .
12. . . . . .
. . . . .
13. . . . . .
. . . . .
14. . . . . .
. . . . .
15. . . . . .
. . . . .
16. . . . . .
. . . . .
17. . . . . .
. . . . .
18. . . . . .
. . . . .
32nd Meeting to 36th Meeting
19. . . . . .
. . . . .
20. . . . . .
. . . . .
21. . . . . .
22. The minutes of the 36th meeting do not contain the particulars showing consideration of each application for allocation of 23 coal blocks earmarked for non-power sector. There is nothing in the minutes to indicate how and in what manner the selected companies meet the norms fixed for inter se priority. Many of the selected companies were neither recommended by the State Government nor by the Administrative Ministry. Some of them were recommended by the State Government but not recommended by the Administrative Ministry while one of them was not recommended by the State Government but recommended by the Administrative Ministry. Many companies which had failed to secure allocations earlier yet they were recommended. The Screening Committee failed to consider CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 306 of 350 capability and capacity of the applicant in implementing the projects.
151. The entire exercise of allocation through Screening Committee route thus appears to suffer from the vice of arbitrariness and not following any objective criteria in determining as to who is to be selected or who is not to be selected. There is no evaluation of merit and no inter se comparison of the applicants. No chart of evaluation was prepared. The determination of the Screening Committee is apparently subjective as the minutes of the Screening Committee meetings do not show that selection was made after proper assessment. The project preparedness, track record etc., of the applicant company were not objectively kept in view."
(Emphasis supplied by me)
406. Though it was argued by Ld. Counsels for the accused persons that the observations made by Hon'ble Supreme court in the said order dated 25.08.2014 can not be referred to by this Court in the present proceedings as Hon'ble Supreme court in the said matter never dealt with the issue of criminality of the persons involved and had only discussed the manner in which various coal blocks were allocated to different applicant companies in contravention of MMDR Act, 1957 and CMN Act 1973. In this regard it would be suffice to state that the aforesaid observations of Hon'ble Supreme Court either qua the importance of coal towards industrial development of the country or as regard nature of minutes recorded by 36th Screening Committee meeting or even as regard the lack of objectivity and transparency in the working of Screening Committee are being referred to only show that the conclusions arrived at by this Court on the basis of evidence led in the present trial coupled with documents which stands conclusively proved on record, are not based on presumptions much less on conjectures and surmises. It is only the CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 307 of 350 process of Screening Committee which was analysed and discussed by Hon'ble Supreme Court which is being referred to over here. No conclusion is however being drawn as regard the criminality of the persons involved on the basis of any such observations of Hon'ble Supreme Court as were made in the said order dated 25.08.2014.
407. Thus from the aforesaid discussion it is clear that the manner in which the Screening Committee functioned or dealt with the issue of allocation of various coal blocks and as is reflected from the minutes Ex. PW 13/L (colly), the recommendations even qua Thesgora-B/Rudrapuri coal block in favour of A-1 M/s KSSPL were not based on any objective or transparent criteria. No such elements are discernible either from the minutes of 36th Screening Committee meetings or from the files of MOC. In fact Ld. Counsels for the accused persons are now trying to present various reasons for the decision taken by them and are now calling upon this Court to read all such reasons as inherent in the said minutes and that too after carrying out a detailed comparative analysis of applications of various applicant companies who had applied for allocation of Thesgora- B/Rudrapuri coal block including that of A-1 M/s KSSPL. In this regard I may once again state that to carry out such a comparative analysis now is primarily based on a misconception. As already discussed at length and demonstrated that the application of A-1 M/s KSSPL was bound to be rejected at the initial stage itself being incomplete and thus it ought not to have been sent either to Administrative Ministry i.e Ministry of Steel or to State Government of CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 308 of 350 Madhya Pradesh much less placed before the Screening Committee. Had MOC officers been vigilant enough then the question of considering application of A-1 M/s KSSPL for allocation of any coal block much less Thesgora-B/Rudrapuri coal block would not have arisen at all. This Court thus does not find any necessity to undertake any such comparative analysis of applications of various applicant companies who had applied for Thesgora-B/Rudrapuri coal block. Even otherwise as already mentioned such a comparative analysis with reasons thereof ought to have been mentioned in the minutes Ex. PW 13/L (colly) itself. It can not be stated by anyone that reasons would have been disclosed later on to all such authorities who would have questioned the correctness of their decision. As already mentioned the minutes in themselves are cryptic in nature and does not disclose any reasons which prevailed with the Screening Committee in making recommendation for any given coal block in favour of any company much less in favour of A-1 M/s KSSPL.
408. It is for this reason only that in the earlier part of my judgment also I have observed that on account of such nature of acts of omission and commission directly attributable to accused MOC officers, the application of A-1 M/s KSSPL despite being incomplete came to be placed before the Screening Committee and the same was not only considered but was even recommended for allocation of a coal block. It is in this light the claim made by A-4 H.C. Gupta and A-5 K.S. Kropha that irrespective of the applications being complete or not, all the applications were to be placed before Screening CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 309 of 350 Committee, needs to be seen and appreciated. The said claim as earlier also stated is clearly an attempt to cover up their initial acts of omission and commission in not ensuring that the applications were duly checked for their eligibility and completeness in accordance with the guidelines issued by MOC or in ensuring that such applications which were not complete in terms of the guidelines issued by MOC ought to have been rejected and should not have been placed before the Screening Committee.
409. Thus at the cost of repetition, it may be stated that the various acts of omission and commission as are attributable to the accused MOC officers clearly show that they so acted consciously and deliberately as part of a well designed scheme of things. In fact the subsequent conduct of MOC officers while sending recommendation of Screening Committee to Prime Minister as Minister of Coal and thereafter at post-approval stage i.e. after the recommendations of Screening Committee were approved by Prime Minister as Minister of Coal further supports the aforesaid conclusion.
(H) Checking of applications post-approval of recommendations of Screening Committee by Prime Minister as Minster of Coal.
410. It was pointed by Ld. Counsels for the accused persons that in the order dated 13.10.2014, this Court while disagreeing with the final conclusion arrived at by the CBI to close the case observed that even in the selection of Lower Divisional Clerks in Government of India where number of applicants is usually too large, the scrutiny or CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 310 of 350 verification of their testimonials/certificates may not be though carried out at the initial stage i.e. before permitting them to appear in the written examination but certainly at a subsequent stage when the selection process is over but prior to issuance of appointment letters, the testimonials/certificates of the selected/short listed candidates are checked. The purpose is only to ensure that no candidate may get appointment on the basis of fictitious documents and at least their claims as made in their application be cross-checked and verified from their certificates. It was however submitted by Ld. Counsels for the accused persons that the said analogy as is sought to be drawn by this Court does not apply to the facts and circumstances of the present case. It was submitted that admittedly MOC had issued specific guidelines governing allocation of captive coal blocks and the said guidelines were completely silent about any such scrutiny or checking of applications post approval of recommendation of Screening Committee by the Prime Minister as Minister of Coal. It was thus submitted that introduction of any such criteria now at this stage of the matter is certainly not permissible under the law and no liability in this regard can be now fixed upon the accused persons.
411. Though on the face of it the submissions made by Ld. Counsels for the accused MOC officers appears to be attractive and well founded but if the overall facts and circumstances of the case are seen coupled with the manner in which the guidelines have been tweaked or not followed at all by accused MOC officers then it will be found that the analogy sought to be drawn by this Court at the initial CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 311 of 350 stage itself while rejecting the closure report filed by CBI applies with full force to the facts and circumstances of the present case. The reasons are ample and clear.
412. Admittedly the purpose of checking the applications for their eligibility and completeness as mentioned in the guidelines was only to ensure that application of no such company which is either not eligible or whose application is not complete is considered by MOC much less by the Administrative Ministries or the State Governments or the Screening Committee. The intention was clear and apparent that all such applications should be rejected at the initial stage of the process itself. It is in these circumstances the reasons adduced by the accused persons on account of which checking of applications could not be carried out need to be appreciated. It was submitted that as the applications were too many i.e. more than 1400 applications and there was acute shortage of staff in CA-I, Section and also due to lack of technical knowledge of the matters, CA-I, Section could not carry out the checking of the applications which were even otherwise voluminous in nature. Apart from such an explanation coming on record from the mouth of PW-13 V.S. Rana, it also now stands well proved that the present three accused persons who were senior officers of MOC i.e. A-4 H.C. Gupta, A-5 K.S. Kropha and A-6 K.C. Samria were well aware of the process which was undertaken qua the applications in MOC till 11.05.2007. As already discussed the three accused MOC officers can not now claim that they were not aware of the manner in which the applications were dealt with in CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 312 of 350 MOC. The guidelines as were issued by MOC governing allocation of captive coal blocks were also admittedly to the knowledge of all the three accused MOC officers. Thus even though it was to the knowledge of the three accused MOC officers that the guidelines issued by MOC governing allocation of coal blocks have not been followed in as much as the applications have not been checked for their eligibility and completeness but they still also did not initiate any action at that stage to ensure compliance with the guidelines titled "Processing of Application". It is in these circumstances it becomes important to note that in the guidelines itself it was stated that after the Screening Committee would make its recommendation then on the basis of recommendation of the Screening Committee, Ministry of Coal will determine the allotment. However while forwarding the file to Prime Minister as Minister of Coal for approval of the recommendation of the Screening Committee, it was no where mentioned by any of the MOC officers much less by A-4 H.C. Gupta that the applications have not been checked for their eligibility and completeness. There was thus no reason in the facts and circumstances of the case for the Prime Minister as Minister of Coal to presume that the guidelines issued have not been complied with. It is not only apparent from the record but it is certainly permissible to draw a presumption in the overall facts and circumstances of the case that Prime Minister as Minister of Coal proceeded to consider the recommendation of the Screening Committee on the assumption that the applications must have been checked in MOC for their eligibility and completeness or that the guidelines must have been CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 313 of 350 duly followed even by the Screening Committee. Thus if in the aforesaid facts and circumstances, the contention of Ld. Counsels for the accused persons is considered that the guidelines were silent as regard post approval checking or scrutiny of the applications for their eligibility and completeness then it will be worth mentioning that the MOC officers have all through the coal block allocation process have rather chosen to act as per their own whims and fancies and even beyond the purview of guidelines. A clear example of such an act on their part was in calling upon each of the applicant company for a presentation before the Screening Committee and to also ask them to submit a feedback form titled "Latest Status of End Use Project".
413. Before proceeding further, I may state as a mark of caution that I am not questioning the justification for such a decision of MOC in calling upon the companies to make a presentation before the Screening Committee or to submit a feedback form titled "Latest Status of End Use Project" as the same may be a step to ensure better appreciation of claims made by applicant companies or to ensure more objectivity and transparency in the matter. However the issue which is under consideration now is whether the guidelines issued by MOC provided for any such mechanism for calling upon the applicant companies to make presentation before the Screening Committee and to also submit a feedback form titled "Latest Status of End Use Project" or not. The answer in this regard is a clear "NO". In fact the minutes Ex. PW 13/DX-16 of meeting held on 11.05.2007 itself shows such a concern on the part of MOC officers. The MOC CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 314 of 350 officers as members of Screening Committee were conscious of this fact that the guidelines issued by MOC were completely silent as regard any provision of making presentation by applicant companies or submission of any feedback form. It is primarily for this reason only that the 36th Screening Committee even proceeded to consider applications of those companies which had not appeared before the Screening Committee to make any presentation or to submit any feedback form. (The issue as to whether the application of A-1 M/s KSSPL could have been considered by the Screening Committee even when the company as per its own claim had not made any presentation before the Screening Committee or no feedback form was submitted by it shall be separately dealt with by me).
414. Thus in view of my aforesaid discussion, it is clear that the guidelines issued by MOC were though the guiding factors as per which the allocation of captive coal blocks was to be made by MOC but MOC officers certainly deviated from the said guidelines as and when deemed necessary by them. Thus it was in these circumstances observed by this Court that applications of the few selected companies who were finally recommended by the Screening Committee for allocation of various coal blocks and which recommendations were approved by Minister of Coal could have been checked at least before the issuance of allocation letters in order to ensure that the applications of such companies were complete or that they were eligible for allocation of a captive coal block. Thus in my considered opinion the checking of applications CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 315 of 350 even at the stage of post-approval of recommendation of Screening Committee by Prime Minister as Minister of Coal for their eligibility and completeness would have not only ensured a greater degree of objectivity and transparency in the entire coal block allocation process but it would have also ensured that the important Nationalised natural resources of the country i.e. coal does not go into the hands of any ineligible company or a company whose application was incomplete in terms of the guidelines issued by MOC governing allocation of coal blocks.
415. At this stage, I may also mention that by suggesting the aforesaid course of action which any reasonable and prudent person who is saddled with responsibility to protect larger public interest in the allocation of important Nationalised natural resources of the country would have taken. I am not at all laying down any new methodology or policy directions which ought to have governed the allocation of captive coal blocks. It is only that if the MOC officers found complying with the guidelines issued by MOC governing allocation of captive coal blocks a difficult preposition at the initial stage of the process and if they were acting bonafide and in good faith then keeping in mind the important nature of task being performed by them the checking of applications for their eligibility and completeness as was required to be carried out at the initial stage itself could have been done at least prior to issuance of allocation letters to the selected companies. Thus this Court is not trying to introduce any new guidelines in the already issued guidelines of MOC CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 316 of 350 but the methodology as stated above would have not only facilitated due compliance with the guidelines issued by MOC but would have also taken care of various other constraints such as shortage of staff etc. in complying with the guidelines at the initial stage itself. Moreover as mentioned above the MOC officers introduced various other steps in the process of allocation of coal blocks and which steps were certainly not provided for in the guidelines.
416. Thus once again it can not be stated or believed that due to inefficiency or incompetence of the accused MOC officers the applications could not be checked for eligibility and completeness. The overall facts and circumstances are rather strongly suggestive or indicative of existence of malafide intention on the part of accused MOC officers in procuring/obtaining allocation of a captive coal block in favour of A-1 M/s KSSPL by abusing their position and the said act has also been done by them with complete disregard to public interest much less without public interest.
(I) Circumstances in which recommendation for allocation of Thesgora-B/Rudrapuri coal block was made in favour of A-1 M/s KSSPL by 36th Screening Committee.
417. As regard the proceedings of 36th Screening Committee meeting wherein the recommendations were made for Thesgora- B/Rudrapuri coal block in favour of A-1 M/s KSSPL, it will be pertinent to mention that as per A-1 M/s KSSPL, A-2 Pawan Kumar Ahluwalia and A-3 Amit Goyal, no presentation was made before the Screening Committee on 08.12.2007 and also no feedback form was submitted CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 317 of 350 on behalf of A-1 M/s KSSPL to the Screening Committee. The minutes of 36th Screening Committee though mentions that some companies were not able to present their case due to delay in receipt of notice. Names of four such companies who so represented to MOC are M/s Shanno Business, M/s Shanti GD Ispat, M/s Special Blasts Limited and M/s Eastern Steel and Power Limited. The said four companies however sent their respective updated information to MOC. The said information so submitted by the said four companies was accordingly placed before the Screening Committee for consideration. The minutes however in para 6 also states that some of the companies did not appear for presentation despite notices issued to them through individual letters as well as through MOC website. However the applications of such companies were also considered by the Screening Committee as per the information submitted by them in their application forms. In para 13 and 14 of the minutes Ex. PW 13/L (colly) the various factors which were taken into consideration by the Screening Committee in arriving at its decision are mentioned as follows:
"13. The Screening Committee, thereafter, deliberated at length over the information furnished by the applicant companies in the application forms, during the presentations and subsequently. The Committee also took into consideration the views/'comments of Ministry of Steel, Department of Industrial Policy and Promotion, State Governments concerned, guidelines laid down for allocation of coal blocks, and other factors as mentioned in paragraphs 8 to 12 above, as regards inter-se distribution of shares among the joint allocattees, it was decided by the Committee that capacity of end-use projects shall be determined as follows:
i) The capacity indicated in the application form;
ii) The capacity indicated in the MoU entered into between CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 318 of 350 the applicant company and the State Govt. concerned, wherever applicable;
iii) The realistic capacity addition likely to materialize by the year 2010, as assessed by the nodal Ministry/Department concerned;
Whichever is the lowest.
14. Based on the data furnished by the applicants, and the feedback received from the State Governments, the Ministry of Steel and Department of Industrial Policy and Promotion, the Committee assessed the applications having regard to matters such as techno-economic feasibility of end-use project, status of preparedness to set up the end-use project, past track record in execution of projects, financial and technical capabilities of applicant companies, recommendations of the State Governments and the Administrative Ministries concerned etc. the Screening Committee, accordingly decided to recommend for allocation of coal blocks in the manner as follows:"
S. State Name of Geological Tentative Mine Name of End Use Location Share
No. the Block Reserves Extractable Capacity Company Plant
Reserves Capacity
(in MTPA)
1 2 3 4 5 6 7 8 9 10
BLOCKS EARMARKED FOR PIG IRON (Coking coal)
1
2
3...
BLOCKS EARMARKED FOR OTHER END USES - NON COKING COAL 1 2
3....
418. Moreover various notings in the files of MOC shows that the applications of all such companies who did not appear to make presentation before the Screening Committee were also considered as it was observed by the senior officers of MOC that making of presentations and submission of feedback forms was not a mandatory requirement as per the guidelines issued by MOC governing allocation of captive coal blocks.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 319 of 350
419. Though one may say that since the guidelines issued by MOC did not provide for any mechanism whereby each applicant company was to be called upon to make a presentation before the Screening Committee or to submit any feedback form titled "Latest Status of End Use Project" but as earlier also mentioned the said exercise was decided upon by MOC officers in consultation with other members of Screening Committee so as to have latest update on the information furnished by the applicant companies in their respective application forms. Since considerable period had elapsed from the time the applications were invited by MOC so it was thought just and appropriate that applicant companies may be permitted to submit latest status of their end use projects.
420. Thus as earlier also mentioned the intention to adopt such a practice was to achieve the ultimate goal of screening the applications in an objective and transparent manner. The final aim being to ensure that the important Nationalised natural resources of the country i.e coal are distributed or allocated in an objective and transparent manner lest the same may go into the hands of any unscrupulous company.
421. Thus if in the light of aforesaid objectives the proceedings of 36th Screening Committee and especially as were held in its meeting held on 03.07.2008 which stands reflected from the minutes Ex. PW 13/L (colly) are seen then it is found that for reasons best known to the MOC officers who finally prepared the minutes in MOC, not only the ultimate objectives which were to be achieved were lost CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 320 of 350 somewhere but even the process of reaching those objectives became hazy and shrouded with grave shadows of doubts. A perusal of the minutes of the meeting held on 11.05.2007 Ex. PW 13/DX-16 (colly) clearly shows that one of the concern of MOC officers as well as representatives of other members of Screening Committee present was to filter out non-serious applicants. It was mentioned in the said minutes that if the non-serious applicants are filtered out then the same would ensure more objective and critical evaluation of the competent applicants. It is however entirely a different matter that later on it was decided that instead of filtering out non-serious applicants at the initial stage by laying down certain bench mark criteria in conformity with the broad parameters indicated in the guidelines, it would be advisable that all applicants be called for personal hearing. The purpose of referring to the aforesaid minutes of meeting held on 11.05.2007 repeatedly is to emphasise that though all applicant companies were decided to be called upon for making a presentation before the Screening Committee in order to avoid any legal challenge to the process at a later stage by any such applicant company who may not be called for making presentation before the Screening Committee but the ultimate objective to filter out non- serious applicants still remained to be achieved.
422. Thus if in the light of aforesaid objective to be achieved and the process adopted for achieving the said objective, the minutes of 36th Screening Committee Ex. PW 13/L (colly) are seen then it is found that applications of all such applicant companies who chose to CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 321 of 350 appear before the Screening Committee and made presentation before it while also submitting the feedback form titled "Latest Status of End Use Project" was considered alongwith applications of all such other companies who despite service of notice chose not to make any presentation before the Screening Committee and also did not submit any feedback form titled "Latest Status of End Use Project". What could have been a better criteria then this to filter out non-serious applicants. Even if the process of calling upon the applicant companies to make a presentation before the Screening Committee and to submit a feedback form titled "Latest Status of End Use Plant" is not read into the guidelines issued by MOC governing allocation of coal blocks then also a right to give personal hearing to each of the applicant companies by the Screening Committee has to be read as inbuilt in the entire process of allocation of captive coal blocks. It needs to be hammered repeatedly that the matter being dealt with by MOC and the Screening Committee was allocation of important Nationalised natural resources of the country i.e. coal which was crucial for the infrastructural development of the country. It need not be emphasised that during such process the Screening Committee keeping in view the principles of natural justice thought it appropriate to give personal hearing to all the applicant companies even though the said procedure was alien to the guidelines. The said principles of natural justice are thus to be necessarily read as inbuilt or inherent in the guidelines itself. However on the other hand, the proceedings of 36th Screening Committee meeting shows that a company which as per its own claim did not make any presentation and also did not CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 322 of 350 submit any feedback form clarifying the latest status of its end use project was not only considered by the Screening Committee but was even recommended for allocation of a captive coal block. It is the claim of A-3 Amit Goyal himself that he had gone to Screening Committee meeting venue only at the insistence of A-2 Pawan Kumar Ahluwalia in order to answer any query, if raised, by the Screening Committee members regarding the audited balance sheets which he was carrying with him. It is also his case and not disputed even by A- 2 Pawan Kumar Ahluwalia that due to certain unavoidable circumstances A-2 Pawan Kumar Ahluwalia could not appear before the Screening Committee and thus A-3 Amit Goyal who was not even an employee of the company A-1 M/s KSSPL but was only its Statutory Auditor entered the meeting hall and just informed about the inability of A-2 Pawan Kumar Ahluwalia in not being able to appear before the Screening Committee.
423. Strangely enough the accused MOC officers have though stated that if some representative of A-1 M/s KSSPL had appeared before the Screening Committee and his attendance has been marked in the attendance sheets kept at the meeting venue then he must have made the presentation. However neither the records of MOC nor the minutes of 36th Screening Committee Ex. PW 13/L (colly), states as to which of the applicant companies did not appear to make presentation or to submit feedback form. The minutes are completely silent as to whether anyone appeared on behalf of A-1 M/s KSSPL or expressed his inability to make any presentation as the CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 323 of 350 authorised representative of the company could not appear due to certain unavoidable circumstances.
424. Be that as it may, as no record of any presentation, if made by A-1 M/s KSSPL or feedback form, if submitted to the Screening Committee is available and the accused persons themselves are also claiming that neither any presentation was made nor any feedback form was submitted on behalf of A-1 M/s KSSPL to 36th Screening Committee so I proceed to consider the matter further with the assumption that no presentation was made on behalf of A-1 M/s KSSPL and no feedback form was even submitted on behalf of the company. Thus in these circumstances it becomes important to note that if such a company can not be classified as a non-serious applicant company then which other kind of company, the Screening Committee was looking for to classify them as non-serious applicants. It is a classic example of an applicant company which neither made any presentation before the Screening Committee nor it submitted any feedback form despite notice having been served upon it. It is also not the case like the four other companies whose names find mention in para 7 of the minutes Ex. PW 13/L (colly) who had subsequently sent their representations to MOC and the same were circulated to all the members of the Screening Committee for their information by MOC. Thus we have an applicant company like A-1 M/s KSSPL which admittedly as per the claim of accused persons neither made any presentation before the Screening Committee nor submitted any feedback form and even subsequent thereto did not try CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 324 of 350 to send its presentation and feedback form to MOC at a later stage so that it could be circulated to all the Screening Committee members but still the application of said company was not only considered by the Screening Committee but was also recommended for allocation of a captive coal block.
425. At this stage, it will be important to mention that in para 13 of the minutes, the Screening Committee in determining the capacity of end use projects took into consideration the following factors:
(i) The capacity indicated in the application form.
(ii) The capacity indicated in the MoU entered into between the applicant company and the State Govt. concerned, wherever applicable;
(iii) The realistic capacity addition likely to materialize by the year 2010, as assessed by the nodal Ministry/Department concerned.
426. Similarly in para 14, it is stated that the Screening Committee assessed the applications having regard to matters such as techno- economic feasibility of end-use project, status of preparedness to set up the end-use project, past track record in execution of projects, financial and technical capabilities of applicant companies, recommendations of the State Governments and the Administrative Ministries concerned etc.
427. Thus even if the aforesaid factors were considered by the Screening Committee then it is found that in the absence of no presentation having been made by A-1 M/s KSSPL and no feedback form having been submitted, the realistic capacity addition likely to CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 325 of 350 materialize by the year 2010 of A-1 M/s KSSPL in the light of capacity indicated in the application form or claims made in this regard in the application form could not have been assessed by the Screening Committee in an objective and transparent manner.
428. As earlier discussed, one of the likely reason for not making presentation before the Screening Committee and non-submission of feedback form by A-1 M/s KSSPL was that in its initial application form Ex. PW 1/F (colly) (D-10), it was claimed that by the year 2007, the total production capacity of sponge iron of the company shall be 0.3 MTPA. Thus if the company was to make presentation on 08.12.2007 i.e. just 23 days before the end of year 2007 and to also submit the latest status of its end use project then it would have been required to explain the delay in attaining the milestones as indicated in its application. The record as discussed above further shows that even in the year 2012 the installed capacity of sponge iron of A-1 M/s KSSPL was not more than 87000 tonnes per annum. Thus if the company A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia had made its presentation before the Screening Committee or submitted the feedback form titled "Latest Status of End Use Project" then it would have either repeated the misrepresentations made in the application form regarding net-worth of the company and also as regard production capacity of sponge iron or in the alternative any correction if made in the said claims would have affected its chances of seeking allocation of a captive coal block as status/stage level of progress made and state of preparedness of the projects coupled with track CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 326 of 350 record and financial strength of the company were relevant factors for the Screening Committee to arrive at inter-se priority from amongst various applicant companies.
429. Moreover the minutes are completely silent as to in what manner the interse priority of various applicant companies were assessed or considered by the Screening Committee. Admittedly no such interse priority chart or interse merit chart was prepared or supplied to the members of the Screening Committee. The argument that if all such things would have been mentioned in the minutes then the minutes would have run into hundreds of pages, in my considered opinion is not even worth considering especially keeping in view the importance of matter being dealt with by the Screening Committee. The minutes as mentioned above are not only silent about the discussion which took place in the Screening Committee meeting but they does not even mention the factors on the basis of which any such interse priority or interse merit of the applicant companies was arrived at.
430. Thus from the aforesaid circumstances, it is clear that there was no criteria followed by 36th Screening Committee much less a discernible criteria followed by it in making its recommendation for allocation of Thesgora-B/Rudrapuri coal block in favour of A-1 M/s KSSPL. The manner in which A-1 M/s KSSPL has been recommended for allocation of a coal block despite its application being incomplete and it having not appeared before the Screening Committee to make any presentation or to submit feedback form CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 327 of 350 clearly shows as to how much arbitrary was the functioning of Screening Committee. I have also clearly discussed at length that the decision in the Screening Committee qua Thesgora-B/Rudrapuri coal block was primarily that of chairman i.e. A-4 H.C. Gupta. PW-11 S.K. Mishra has clearly stated that the final decision was not with his consent. It has also been shown that the mere signing of final recommendation sheets was not indicative of any unanimity amongst the Screening Committee members towards the final recommendations. The same were merely indicative of the fact that such decisions were finally taken by the Screening Committee on that day. Moreover in the overall scheme of things in which the entire matter of allocation of captive coal blocks was handled by MOC it is clearly evident that once the Screening Committee meetings were over than there was nothing left either for the concerned State Governments or for the Administrative Ministries to express their resentment or to raise any objections to the final recommendations of the Screening Committee. In fact the record also shows that the final minutes of 36th Screening Committee were subsequently prepared and finalised in MOC. All the three accused MOC officers were associated in the preparation, finalisation and approval of the said minutes. It is also not disputed that the said minutes were never sent to various members of Screening Committee for confirmation before they were sent to Prime Minister as Minister of Coal for approval. The recommendation of 36th Screening Committee thus came to be approved by Prime Minister as Minister of Coal. The said approval with certain observations of Prime Minister as Minister of Coal qua CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 328 of 350 some coal blocks [The said observations did not pertain either to Thesgora-B/Rudrapuri coal block or to company M/s KSSPL] were conveyed to MOC vide PMO note dated 21.07.2008 Ex. P-11. Thereafter the various notings in the files of MOC i.e Ex. PW 13/D (colly) (D-6A) clearly shows that MOC proceeded ahead to issue option/offer letters to joint allocattee companies and allocation letters to single allocatee companies. The fact however remains that no attention in the meantime was given to ensure that the final minutes, if not draft minutes, are sent to various members of Screening Committee. The option/offer letter was issued to A-1 M/s KSSPL and M/s Revati Cement Pvt. Ltd. on 05.08.2008. The purpose of referring to the aforesaid proceedings is only to highlight that there was in fact no occasion for either the State Governments or to the Administrative Ministries subsequent to the Screening Committee meeting held on 03.07.2008 to raise any objection. They could not have even known that the views expressed by them or difference of opinion as stated by them during the Screening Committee meeting will not find mention in the minutes.
431. Thus if in the light of aforesaid circumstances, coupled with the actual manner in which Screening Committee functioned as small Committees concerned with individual coal blocks then it is clearly apparent that it was primarily the decision of accused MOC officers led by A-4 H.C. Gupta. PW-11 S.K. Mishra clearly stated that in the discussion which took place qua Thesgora-B/Rudrapuri coal block in the Screening Committee he and the three MOC officers i.e. A-4 H.C.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 329 of 350 Gupta, A-5 K.S. Kropha and A-6 K.C. Samria only participated. He however claimed inability to recall as to whether representative of Administrative Ministry participated in the discussion or not. He also stated that the final decision was not unanimous as it was not with his consent. It has also been already discussed at length that the minutes Ex. PW 13/L (colly) of 36th Screening Committee are also completely silent as to whether the final recommendations were with unanimity of all members present or not. It has also been discussed that while sending the file containing recommendations of Screening Committee to Prime Minister as Minister of Coal for approval nothing was mentioned that the guidelines issued by MOC governing allocation of coal blocks have not been followed even though the said fact was to the knowledge of accused MOC officers. It has also been discussed that even subsequent to approval of recommendation of Screening Committee by Prime Minister as Minister of Coal no effort was still made by accused MOC officers to ensure that at least the applications of selected companies which were only 47 in number are checked for their completeness and eligibility. It has also been discussed at length that the task of checking the applications of only selected companies would have been much easier then to check the applications of about 674 companies which were considered by 36th Screening Committee.
432. Thus from the overall facts and circumstances of the case, as discussed above it stands proved beyond shadows of all reasonable doubts that the three accused MOC officers acted in pursuance to a CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 330 of 350 well-designed scheme of things in which they did not ensure that the applications are checked for eligibility and completeness in terms of the guidelines so that applications which are not complete or are not eligible are rejected and are thus not placed before the Screening Committee. The intention was to keep the field open so that in the Screening Committee they may exercise the discretion vested in them in favour of any applicant company they may choose to. Again during the Screening Committee meeting also it was not disclosed to the other members of Screening Committee that the applications have not been checked for eligibility and completeness in MOC. No efforts were even made during the Screening Committee meeting to ensure that the guidelines regarding deciding of inter-se priority from amongst competing applicants are complied with. They also with-held all these aspects of non-compliance with the guidelines from Prime Minister as Minister of Coal knowing fully well that he as Minister of Coal and thereby incharge Ministry of Coal will proceed to approve allocation of various coal blocks on the basis of recommendation of Screening Committee only.
433. At this stage it will be apt to refer to Halsbury's Laws of England, (Fourth Edition) 11 (1) Criminal Law, Evidence and Procedure which talks about omission as under:
"Undoubtedly the criminal law imposes no obligation on person to act so as to prevent the occurrence of harm or wrongdoing.
Save in exceptional circumstances omission to act in a particular way will give rise to criminal liability only where a duty so to act arises at common law or is imposed by statute. Where a person, with the requisite mens rea, by his conduct brings CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 331 of 350 about the actus reus of a crime, he commits that crime, and conduct in this sense includes acts of omission as well as commission. It is unnecessary to characterise the act immediately causing harm as one of commission or omission if that act forms part of a course of conduct undertaken by a person. If the course of conduct is such that other persons, or possibly the property of other persons, are harmed by its performance, the accused will be criminally liable in respect of his acts, whether they are of commission or omission."
434. Thus the various acts of omission and commission as committed by the accused MOC officers clearly shows that they were acting in cahoot with A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia in order to procure allocation of Thesgora-B/Rudrapuri coal block in favour of A-1 M/s KSSPL. They clearly used their position as public servant in a manner in which it was not intended to be used. As earlier also mentioned no direct evidence is usually available to prove meeting of minds or existence of any agreement amongst the accused persons so as to prove the charge of criminal conspiracy but the same has to be ascertained from the attending circumstances which stands proved on record. From the broad principles governing the law of conspiracy as summarized by Hon'ble Screening Committee in the Nalini Case (Supra) as reproduced above, it is clear that the MOC officers clearly acted in order to favour A-1 M/s KSSPL so as to obtain allocation of captive coal block in its favour. It is on account of these factors only that in the earlier part of my judgment I had observed that the applications were so submitted by A-1 M/s KSSPL under the signatures of A-2 Pawan Kumar Ahluwalia that submission of application was a mere formality as they were sure to obtain allocation of a captive coal block. Similarly accused MOC CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 332 of 350 officers left no stone unturned in helping A-1 M/s KSSPL in procuring allocation of a captive coal block from MOC, Government of India. In order to assist the private parties so involved the accused MOC officers clearly helped them at every stage of the entire coal block allocation process in procuring allocation of a captive coal block. Thus the offence of criminal conspiracy i.e. u/s 120-B IPC is clearly made out against the three accused MOC persons alongwith as against A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia.
435. At this stage I would also like to deal with one other submission of Ld. Senior Advocate Sh. Mohit Mathur for A-4 H.C. Gupta that the guidelines issued by Ministry of Coal under the title "Processing of Application" merely provided for checking of applications for their completeness and eligibility but this Court has rather called upon the accused MOC Officers to explain as to why scrutiny of the applications was not undertaken in Ministry of Coal so as to check whether the applications were complete and whether the applicant companies were eligible for allocation of a captive coal block or not. It was submitted by Ld. senior Advocate that the word "scrutiny" connotes a much broader sphere then mere "checking" of applications.
436. At the outset, I may however state that certainly the guidelines issued by Ministry of Coal governing allocation of captive coal blocks mentions about checking of applications for their eligibility and completeness only before copies thereof were sent to Administrative Ministry/State Government or to CMPDIL. However CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 333 of 350 not only during the course of trial the words "checking" and "scrutiny" have been interchangeably used by the Court but even the accused persons themselves also while cross-examining the prosecution witnesses or while leading their defence evidence so used the words. The important question which however arises is whether while using the words "checking" and "scrutiny" interchangeably, the role of MOC officers or their area of work or their role and responsibility have not been sought to be increased from what was required to be done for checking of applications to what may be required for scrutiny of applications as claimed by Ld. senior Advocate. Accused persons have also all through faced the trial after understanding that they have been charged for not ensuring compliance with guidelines i.e. as to why applications were not checked for their completeness and eligibility in terms of the guidelines issued by MOC governing allocation of coal blocks. Also nothing has been asserted at all as to in what manner the accused persons have been prejudiced during the course of trial by use of words "scrutiny" and "checking" of applications interchangeably.
CONCLUSION
437. Thus moving ahead it is in the light of aforesaid circumstances it needs to be examined as to ingredients of which of the offences for which charges have been framed against all the accused persons stands proved.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 334 of 350 Section 420 IPC and Section 120-B IPC as against A-1 M/s KSSPL, A-2 Pawan Kumar Ahluwalia and A-3 Amit Goyal.
438. It has already been discussed at length and concluded that ingredients of the offence of cheating i.e. u/s 420 IPC stands proved beyond shadows of all reasonable doubts against A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia. It has also been already discussed and concluded that both A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia hatched a criminal conspiracy to cheat MOC, Government of India, so as to induce it to allot a captive coal block in favour of A-1 M/s KSSPL. Charge for the offences u/s 120-B IPC, 420 IPC and for the offence u/s 120-B/420 IPC thus clearly stands proved against A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia beyond shadows of all reasonable doubts. Both the accused persons accordingly stand convicted for the said offences.
439. However as against A-3 Amit Goyal also it has been already mentioned that even though his conduct does not appears to be beyond doubt but in my considered opinion the circumstances so proved on record by the prosecution are not so conclusive as may point unerringly towards the guilt of the accused only. In other words it can not be stated that the circumstances proved against him are not explainable on a hypothesis which may be consistent with the innocence of the accused. A-3 Amit Goyal is accordingly acquitted of the offence u/s 420 IPC as well as of the offence u/s 120-B IPC and also for all other charges framed against him.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 335 of 350 Section 409 IPC and Section 13 (1) (c) P.C. Act, 1988 as against A-4 H.C. Gupta
440. As regard A-4 H.C. Gupta, who was Secretary Coal as well as Chairman Screening Committee, I may state that though in his dual capacity as above he was controlling the affairs of both MOC as well as Screening Committee but it can not be stated that he was exercising any dominion over the coal blocks to be allocated by MOC. Undoubtedly in terms of the guidelines issued by MOC governing allocation of coal blocks A-4 H.C. Gupta and other MOC officers were well aware that based on the recommendations of the Screening Committee, the MOC will allocate coal blocks and as discussed above while forwarding the recommendations of Screening Committee to Prime Minister as Minister of Coal, it was no where disclosed by the accused MOC officers that the guidelines either qua checking of applications for their eligibility and completeness in MOC or qua ascertaining interse priority of applicant companies in Screening Committee have not been followed. They thus certainly exploited this situation by abusing their offices as already discussed above at length in order to procure allocation of Thesgora- B/Rudrapuri coal block in favour of A-1 M/s KSSPL by also withholding all material information regarding non-compliance with the guidelines from Prime Minister as Minister of Coal.
However the prosecution has been unable to prove that A-4 H.C. Gupta was exercising any dominion/control over the said coal blocks or that the said nationalised natural resources of the CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 336 of 350 country were entrusted to him in any manner. Certainly A-4 H.C. Gupta alongwith A-5 K.S. Kropha and A-6 K.C. Samria were playing major roles in the coal block allocation process and by their acts of omission and commission they did assist A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia in procuring allocation of Thesgora- B/Rudrapuri coal block from MOC, Government of India on the basis of false claims/misrepresentations and submitting incomplete application which was liable to be rejected at the initial stage itself. However as the basic essential ingredient of the offence of criminal breach of trust by a public servant i.e. of section 409 IPC or that of the offence of criminal misconduct by a public servant u/s 13 (1) (c) P.C. Act, 1988, that the public servant concerned must have been either entrusted with the property in question or he must be having dominion/control over the property in question does not stand proved as regard A-4 H.C. Gupta vis-a-vis the coal blocks to be allocated by MOC, Government of India so the issue whether the other ingredients of the two offences stand proved or not need not be gone through. Accordingly charge for the offence u/s 409 IPC and offence u/s 13 (1)
(c) P.C. Act, 1988 does not stand proved against A-4 H.C. Gupta.
Accordingly A-4 H.C. Gupta is acquitted of the offence u/s 409 IPC and of the offence u/s 13 (1) (c) P.C. Act, 1988.
Section 13 (1) (d) P.C. Act, 1988
441. Before proceeding to analyse the charge for the offence u/s 13 (1) (d) P.C. Act, 1988 as framed against the three accused MOC officers, it will be pertinent to first have a glance over the said section.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 337 of 350 Section 13 (1) (d) P.C. Act 1988 read as under:
"13. Criminal misconduct by a public servant.-- (1) A public servant is said to commit the offence of criminal misconduct,-
(a)......
(b)......
(c)......
(d) if he,-
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) While holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest;
or
(e)......."
442. Apparently offence u/s 13 (1) (d) (i) P.C. Act, 1988, shall stand attracted only if it is proved by the prosecution that the public servant involved committed the offence of criminal misconduct by using any illegal or corrupt means. However neither there is any allegation of prosecution nor any such evidence available on record which may show that any of the three MOC officers obtained allocation of Thesgora-B/Rudrapuri coal block in favour of A-1 M/s KSSPL by any corrupt or illegal means as have been contemplated in section 13 (1)
(d) (i) P.C. Act, 1988. There could have been number of reasons to accused MOC officers for so acting in favour of A-1 M/s KSSPL but the same must be exclusively to the knowledge of accused persons only and this Court in the absence of any evidence led on record in this regard can not draw any presumption much less on conjectures CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 338 of 350 and surmises.
443. However as regard 13 (1) (d) (ii) P.C. Act, 1988, prosecution is required to prove only that in order to obtain either for himself or for any other person any valuable thing or pecuniary advantage, the public servant abused his position. Thus as is evident from my aforesaid discussion, it is clear that the three accused MOC officers clearly abused their position as public servant in order to obtain for A- 1 M/s KSSPL allocation of Thesgora-B/Rudrapuri coal block. The circumstances of the case as discussed above clearly shows the existence of malafide intention on the part of accused MOC officers in not ensuring compliance with the guidelines issued by MOC governing allocation of coal blocks. It also stands conclusively proved that the accused MOC officers deliberately ignored compliance with the guidelines so that none of the applications stand rejected either on account of being incomplete or on account of the fact that the applicant company was not eligible. The aforesaid non-compliance with the guidelines clearly paved the way for them to exercise their discretion in the Screening Committee in favour of any company which they may choose to. Again during the Screening Committee meeting also it has been conclusively proved that the final recommendation in favour of A-1 M/s KSSPL qua allocation of Thesgora-B/Rudrapuri coal block was not unanimous in nature. It is thus clear that the accused MOC officers used their position as officers of MOC in a manner in which it was not intended to.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 339 of 350
444. Thus from the overall facts and circumstances as discussed above it is crystal clear that the accused MOC officers i.e. A-4 H.C. Gupta, A-5 K.S. Kropha and A-6 K.C. Samria abused their position as public servants in order to obtain allocation of Thesgora-B/Rudrapuri coal block in favour of A-1 M/s KSSPL. They are thus clearly guilty of committing the offence u/s 13 (1)
(d) (ii) as punishable u/s 13 (2) P.C. Act, 1988 and accordingly stands convicted thereunder.
445. As regard offence u/s 13 (1) (d) (iii) P.C. Act 1988 not much discussion is required as it is clear that the accused MOC officers acted with complete disregard to public interest in obtaining allocation of Thesgora-B/Rudrapuri coal block in favour of A-1 M/s KSSPL much less without any public interest. As a mark of caution, I may mention over here that while considering as to whether the offence u/s 13 (1)
(d) (iii) P.C. Act 1988 is made out or not against the three accused MOC officers the issue of there being requirement of any mens rea or guilty intention on the part of accused public servants ceases to have any significance as the guilty intention of the accused MOC officers in the entire matter stands well proved beyond shadows of all reasonable doubts.
446. Certainly neither it has been argued nor it can be said that in the process of allocation of captive coal blocks no public interest was involved. Thus on account of manifest disregard to the guidelines governing allocation of captive coal blocks and that too with malafide intention by abusing their position as a public servant the accused CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 340 of 350 MOC officers completely acted without public interest so involved. Thus offence u/s 13 (1) (d) (iii) P.C. Act 1988 r/w Section 13 (2) P.C. Act, 1988 is also clearly made out against the three accused MOC officers beside offence u/s 13 (1) (d) (ii) P.C. Act, 1988 as already mentioned. The three accused MOC officers thus stands convicted for.
Section 120-B IPC r/w sections 420/409 IPC and Section 13(1)
(c)/13(1)(d) of Prevention of Corruption Act, 1988.
447. In view of my aforesaid discussion, when A-4 H.C. Gupta has already been acquitted of the substantive offence u/s 409 IPC and section 13(1) (c) Prevention of Corruption Act, 1988 so the charge for the offence u/s 120B IPC r/w section 409 IPC and 13(1) (c) of Prevention of Corruption Act, 1988 also does not hold ground against all the accused persons.
448. At the same time, as A-4 H.C. Gupta, A-5 K.S. Kropha and A-6 K.C. Samaria have been held guilty of the offences u/s 13 (1) (d)
(ii) and 13(1) (d) (iii) Prevention of Corruption Act, 1988, and accused company A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia have been held guilty of the offence u/s 420 IPC so all the accused persons i.e. A-1 M/s KSSPL, A-2 Pawan Kumar Ahluwalia, A-4 H.C. Gupta, A-5 K.S. Kropha and A-6 K.C. Samria also stands convicted for the offences u/s 120B IPC r/w section 420 IPC and section 13 (1) (d) (ii)/ 13 (1) (d) (iii) Prevention of Corruption Act, 1988.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 341 of 350 Sanction u/s 197 Cr. PC.
449. Before parting away with the present judgment, I may also mention that Ld. Counsel for the accused MOC Officers had vehemently argued that since all the acts as have been attributed to the accused MOC Officers in the entire coal block allocation process were done in the discharge of their official duties so cognizance of the offences u/s 409 IPC and section 120-B IPC against them was clearly bad in law.
450. However, before proceeding to discuss the aforesaid issue, I may mention that I had consciously not dealt with the present issue at an earlier stage of the judgment as I first intended to examine as to which offence(s) under IPC the prosecution may succeed in proving against the accused persons. However as now charge for the offence u/s 409 IPC does not stands proved against A-4 H.C. Gupta so the issue of grant of sanction u/s 197 Cr. PC qua the said offence need not be gone into. We are thus left only with the offence of criminal conspiracy i.e. u/s 120-B IPC as against the three Ministry of Coal Officers for whom it has been argued that sanction for prosecution u/s 197 Cr. PC is a sine qua non for taking cognizance. In this regard I may mention that the present issue can be viewed from two different stand points. Firstly, as discussed above the various acts of omission and commission as were committed by the accused public servants cannot be stated to have been committed by them while acting or purporting to act in the discharge of their official duties. In fact it was their position as public servant which provided them an occasion to CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 342 of 350 enter into a criminal conspiracy with the private parties involved but it cannot be stated that they so acted either in the discharge of their official duties or in the purported discharge of their official duties. Moreover, in the case Rajib Ranjan & Ors vs R. Vijay Kumar, (2015) 1 SCC 513 and Inspector of Police & Anr. Vs Battenapatla Venkata Ratnam &Anr., C.A. No. 129 of 2013 (SC), it has been categorically held by Hon'ble Supreme Court that when a public servant enters into a criminal conspiracy or indulges in criminal misconduct, such misdemeanour on his part is not to be treated as an act in discharge of his official duties and therefore, provisions of Section 197 Cr. PC will not be attracted. Reference in this regard can also be had to K. Satwant Singh vs State of Punjab, 1960 (2) SCR 89; Amrik Singh vs State of Pepsu, 1955 (1)SCR 1302 and Om Prakash Gupta vs State of U.P., 1957 SCR 423.
451. There is, however, yet another aspect of the present matter. Since the role attributed to the accused public servants in the entire criminal conspiracy is clearly traceable to the offences u/s 13 (1) (d)
(ii)/13 (1) (d) (iii) P.C. Act, 1988 so for any conspiracy to commit any such offence under Prevention of Corruption Act, 1988, no sanction u/s 197 Cr. PC can be held to be required. Certainly, for a substantive offence thereof under Prevention of Corruption Act, 1988, sanction u/s 19 Prevention of Corruption Act, 1988 is required. Admittedly, the said sanction u/s 19 of Prevention of Corruption Act, 1988 is available on record as against A-5 K.S. Kropha and A-6 K.C. Samaria. The said sanction order also states that the competent sanctioning authority CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 343 of 350 has accorded the sanction for prosecution of the two accused public servants for the offence u/s 13(1)(d) Prevention of Corruption Act, 1988 and for any other offences punishable under other provisions of law in respect of the said acts. Further as A-4 H.C. Gupta has since retired from Government service so no sanction u/s 19 PC Act, 1988 was required for taking cognizance of the offences under Prevention of Corruption Act,1988 against him. Consequently no sanction u/s 197 Cr. PC is even required for the offence of criminal conspiracy to commit any offence under Prevention of Corruption Act, 1988 qua him or the other accused MOC officers.
452. Ld. Counsels for the public servants while relying upon the case N. K. Ganguly Vs. CBI (2015) SCC On-line SC 1205 however strongly argued that for the acts allegedly committed by the accused public servants no cognizance of the offences under IPC can be taken without a prior sanction u/s 197 Cr.PC. However, I may observe that in the N. K. Ganguly case (Supra), Hon'ble Supreme Court has primarily reiterated the basic principle of law that for an act which is alleged to have been committed in discharge of official duty by accused the previous sanction u/s 197 Cr PC is a pre-requisite condition. However with utmost respect I may state that the said principle is not applicable to the facts and circumstances of the present case in as much as the various acts of omission and commission committed by the public servants and as discussed in the present judgement can not be said to have been committed by the accused MOC officers in the discharge of their official duties. As CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 344 of 350 already discussed above the facts of the present case clearly show that A-4 H.C. Gupta, A-5 K.S. Kropha and A-6 K.C. Samria entered into a criminal conspiracy with company A-1 M/s KSSPL and its director A-2 Pawan Kumar Ahluwalia so as to procure allotment of a coal block in favour of A-1 M/s KSSPL. Thus the said acts of entering into a criminal conspiracy to commit offence of criminal misconduct as defined under Prevention of Corruption Act, 1988 cannot be deemed to have been done in discharge of their official duty by the accused MOC officers. It is altogether a different matter that the position of the accused persons either as Secretary, Coal and as Chairman, Screening Committee or as Joint Secretary MOC and Member Convener Screening Committee or as Dy. Secretary/Director CA-I Section, Ministry of Coal provided them an opportunity to so enter into a criminal conspiracy with the private persons. However, I may again reiterate that the acts as stands proved against the accused public servants i.e. A-4 H. C. Gupta, A-5 K.S. Kropha and A-6 K.C. Samria are such that if questioned they cannot claim that they were acting in the discharge of their official duties.
453. Thus, in view of my aforesaid discussion, it is clear that there is no requirement of sanction u/s 197 Cr. PC in the present matter.
454. The final conclusion as drawn by me herein above qua various charges as framed against different accused persons may be now summarized as follows:
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 345 of 350 CHARGES FRAMED S. Name of (I) (II) Final Decision No accused Charges Common to all Charges separately framed 1 M/s Kamal (i) 120-B IPC 420 IPC Convicted for the Sponge Steel offence u/s 120-B & Power Ltd., (ii) u/s 120-B IPC r/w Sec. IPC; 420 IPC; 120-
(through AR 409/420 IPC and Section B IPC r/w 420 IPC
Ankit Gandhi) 13 (1) (c) and 13 (1) (d) P.C. and section 13(1)
Act, 1988 (d)(ii)/13(1)(d)(iii)
P.C. Act, 1988.
Acquitted for the
offence u/s 120-B
IPC r/w S. 409 IPC
and Section 13 (1)
(c) P.C. Act, 1988
2 Pawan Kumar (i) 120-B IPC 420 IPC Convicted for the
Ahluwalia. offence u/s
(ii) u/s 120-B IPC r/w Sec. 120-B IPC; 420
409/420 IPC and Section IPC; 120B r/w 420
13 (1) (c) and 13 (1) (d) P.C. IPC and section
Act, 1988 13(1)(d)(ii)/13(1)(d)
(iii) P.C. Act, 1988.
Acquitted for the
offence u/s 120-B
IPC r/w S. 409 IPC
and Section 13 (1)
(c) P.C. Act, 1988
3 Amit Goyal. (i)120-B IPC 420 IPC Acquitted for all
offences
(ii) u/s 120-B IPC r/w Sec.
409/420 IPC and Section
13 (1) (c) and 13 (1) (d) P.C.
Act, 1988
4 H.C. Gupta. (i) 120-B IPC (i) Sec. 409 Convicted for the
IPC offence u/s 120-B
(ii) u/s 120-B IPC r/w Sec. IPC; section 13(1)
409/420 IPC and Section (ii) 13 (1) (d)(ii) and 13(1)(d)
13 (1) (c) and 13 (1) (d) P.C. (c) / 13 (iii) P.C. Act, 1988;
Act, 1988 (1) (d) P.C. 120B r/w 420 IPC
Act, 1988 and section 13(1)
(d)(ii)/13(1)(d)(iii)
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 346 of 350
P.C. Act, 1988.
Acquitted for the
offences u/s 409
IPC and section
13(1)(c) P.C. Act,
1988.
5 Kuljit Singh (i) 120-B IPC 13 (1) (d) Convicted for the
Kropha. P.C. Act, offence u/s 120B
(ii) u/s 120-B IPC r/w Sec. 1988 IPC; section 13(1)
409/420 IPC and Section (d)(ii) and 13(1)(d)
13 (1) (c) and 13 (1) (d) P.C. (iii) P.C. Act, 1988;
Act, 1988 120-B r/w 420 IPC
and section 13(1)
(d)(ii)/13(1)(d)(iii)
P.C. Act, 1988.
Acquitted for the
offences u/s 409
IPC and section
13(1)(c) P.C. Act,
1988.
6 Kailash (i) 120-B IPC 13 (1) (d) Convicted for the
Chand P.C. Act, offence u/s 120-B
Samaria. (ii) u/s 120-B IPC r/w Sec. 1988 IPC; section 13(1)
409/420 IPC and Section (d)(ii) and 13(1)(d)
13 (1) (c) and 13 (1) (d) P.C. (iii) P.C. Act,
Act, 1988 1988;120B r/w 420
IPC and section
13(1)(d)(ii)/13(1)(d)
(iii) P.C. Act, 1988.
Acquitted for the
offences u/s 409
IPC and section
13(1)(c) P.C. Act,
1988.
ANNOUNCED IN THE OPEN COURT (BHARAT PARASHAR)
TODAY ON 19.05.2017 SPECIAL JUDGE, (PC ACT)
CBI-07, NEW DELHI DISTRICT
PATIALA HOUSE COURTS
NEW DELHI
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 347 of 350
CC No. 04/14
RC No. 219 2012 E 0016, Branch : CBI/EO-I/New Delhi CBI vs M/s Kamal Sponge Steel & Power Ltd.
U/s 120-B, r/w Sec. 409/420 IPC, & S. 13(1)(c)/13(1)(d) P.C. Act, 1988.
19/05/2017.
Present: Ld. DLA Sh. V.K. Sharma, Ld. Senior PP Sh. A.P.
Singh, Ld. Senior PP Sh. Sanjay Kumar and Advocate Ms. Tarannum Cheema for CBI alongwith IO Dy. SP Sanjay Dubey.
Sh. Ankit Gandhi, AR of accused no. 1 company M/s KSSPL is present in person.
Accused P.K. Ahluwalia (A-2), Amit Goyal (A-3), H.C. Gupta (A-4), K.S. Kropha (A-5) and K.C.
Samria (A-6) are present in person.
Sh. Pawan Narang, Ld. Counsel for A-1 and A-2.
Sh. Sushil Bajaj, Ld. Counsel for A-3.
Sh. B.S. Mathur, Ld. Counsel for A-4 and A-5.
Sh. Vikram Singh, Ld. Counsel for A-6.
Vide my separate judgment of today's date, accused company M/s KSSPL (A-1), Pawan Kumar Ahluwalia (A-2), H.C. Gupta (A-4), K.S. Kropha (A-5) and K.C. Samria (A-6) have been convicted for the offence u/s 120B IPC.
Accused company M/s KSSPL (A-1) and Pawan Kumar Ahluwalia (A-2) have also been convicted for the offence u/s 420 IPC.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 348 of 350 Accused H.C. Gupta (A-4) has also been convicted for the offences u/s 13(1)(d)(ii) and 13(1)(d)(iii) of Prevention of Corruption Act, 1988. However, he has been acquitted for the offences u/s 409 IPC and section 13(1)(c) of Prevention of Corruption Act, 1988.
Accused K.S. Kropha (A-5) and K.C. Samria (A-6) have also been convicted for the offences u/s 13(1)(d)(ii) and 13(1)(d)(iii) of Prevention of Corruption Act, 1988.
All the five accused persons i.e. accused company M/s KSSPL (A-1), Pawan Kumar Ahluwalia (A-2), H.C. Gupta (A-4), K.S. Kropha (A-5) and K.C. Samria (A-6) also stands convicted for the offences u/s 120B IPC r/w section 420 IPC and section 13(1)(d)
(ii)/13(1)(d)(iii) of Prevention of Corruption Act, 1988.
Accused Amit Goyal (A-3) is, however, acquitted of all charges. He has been directed to furnish a personal bond in the sum of Rs. 1,00,000/- with one surety in the like amount u/s 437A Cr. PC and he has been directed to appear before the higher Court as and when such Court issues notice in respect of any appeal or petition filed against the judgment of this Court.
Bail bond u/s 437A Cr. PC has been furnished and accepted.
At this stage, Ld. Counsel Sh. B.S. Mathur for convict H.C. Gupta and convict K.S. Kropha and Ld. Counsel Sh. Pawan Narang for convict company M/s KSSPL and convict Pawan Kumar Ahluwalia and Ld. Counsel Sh. Vikram Singh for convict K.C. Samria have submitted that they intend to address arguments on the point of sentence today itself. It was, however, told to them that if they wish to CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 349 of 350 argue on the point of sentence on some other day then the matter can be adjourned but Ld. Counsels stated that they wish to argue today itself. Accordingly, arguments on the point of sentence have been heard as were addressed by Ld. Counsels for all the convict persons and by Ld. DLA for prosecution.
Put up for orders on the point of sentence on 22/05/2017 at 02.15 pm. (Bharat Parashar) Special Judge (PC Act) CBI-07, New Delhi District, Patiala House Courts, 19/05/2017.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 350 of 350