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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
CNR No. DLND01-000411-2014
CC No. 8524/16 (Old CC No. 03/16)
RC No. 219 2012 E 0014
Branch: CBI/EO-I/New Delhi
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors.
U/s. 120-B IPC; 420 IPC; Sec 13(1)(d) (ii)/13(1)(d) (iii) P. C. ACT, 1988 &
120-B IPC r/w S. 420 IPC & Sec 13(1)(d) (ii)/13(1)(d) (iii) P. C. ACT, 1988
Date of order on cognizance : 05.02.2016
Date of framing of charge : 19.08.2016
Date of final arguments : 18.09.2018
Date of judgment : 30.11.2018
In re:
Central Bureau of Investigation (CBI)
Vs.
(1) M/s Vikash Metal & Power Ltd.
Registered office: 35, Chittranjan Avenue,
6th Floor, Kolkata - 700012, (West Bengal)
Corporate Office: 21 Hemanta Basu Sarani,
3rd Floor, Room No. 312, Kolkata -700001
(West Bengal) (Convicted)
(2) Vikash Patni
S/o Sh. Vimal Kumar Patni
R/o 227/1A, 2nd Floor, Room 2B,
AJC Bose Road, Kolkata-20 (Convicted)
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 1 of 467
(3) Anand Mallick
S/o Sh. Trilok Nath Mallick
R/o Flat No. 202, Charmes Solitaire,
Near DPS, Indirapuram,
Ghaziabad. (Convicted)
(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. Senior P.P. Sh. Sanjay Kumar, Ld. DLA
Sh. V. K. Sharma, Ld. Senior P.P. Sh. A.P. Singh,
and Ld. Advocate Ms. Tarannum Cheema for CBI.
Ld. Counsel Sh. Sougat Sinha for A-1 M/s Vikash
Metal & Power Ltd. (M/s VMPL), Ld. Counsel
Dr. Sushil Kumar Gupta for A-2 Vikash Patni,
Ld. Counsels Dr. Sushil Kumar Gupta and
Sh. Ratnesh Deo for A-3 Anand Mallick, Ld. Counsels
Sh. B.S. Mathur and Sh. Rajat Mathur for A-4 H.C.
Gupta and Ld. Counsel Sh. Rahul Tyagi for A-5 K.S.
Kropha and A-6 K.C. Samria.
JUDGEMENT
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 2 of 467 INDEX TO THE JUDGMENT S.NO HEADING PAGE NO(s) (A) Facts 7 A (i) Investigation by CBI 11 A (ii) Proceedings before the Court. 14 (B) Charges Framed 16 (C) Evidence 19 C (i) Prosecution Evidence 20 C (ii) Defence Evidence 26 (D) Arguments D (i) Arguments on behalf of Prosecution 29 D (ii) Arguments on behalf of company A-1 M/s VMPL. 33 D (iii) Arguments on behalf of A-2 Vikash Patni 34 D (iv) Arguments on behalf of A-3 Anand Mallick. 46 D (v) Arguments on behalf of A-4 H.C. Gupta. 50 D (vi) Arguments on behalf of A-5 K.S. Kropha and 60 A-6 K.C. Samria.
(E) Prelude to my discussion of the prosecution case. 75 (F) Role of private parties i.e. A-1 M/s VMPL, A-2 Vikash Patni 86 and A-3 Anand Mallick in the allocation of Moira- Madhujore Coal Block in favour of A-1 M/s VMPL by Ministry of Coal.
F (i) Actual purpose of seeking allocation of a captive coal 117 block situated in state of West Bengal by A-1 M/s VMPL.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 3 of 467 F (ii) Whether the application of M/s VMPL was complete in terms of the guidelines issued by MOC governing 119 allocation of captive coal blocks.
F (iii) Whether the company M/s VMPL mentioned inflated 146 figures of financial strength in its application.
F (iv) Whether A-1 M/s VMPL, A-2 Vikash Patni and A-3 147 Anand Mallick were aware of the factum of cancellation of allotment of 300 acres of land to A-1 M/s VMPL by BIADA.
F (v) Whether Ministry of Steel relied upon the aforesaid 154 highly inflated claims about the financial strength and capacity of the end use project made by the company M/s VMPL in its application.
F (vi) Whether the data furnished by A-1 M/s VMPL in its 160 application and the feed-back form was considered by the Screening Committee, MOC.
F (vii) Whether issuance of letter of allotment of coal block 163 amounted to delivery of property resulting in wrongful gain to A-1 M/s VMPL.
F (viii) Whether the dishonest misrepresentation continued 168 before Prime Minister as Minister of Coal and thereby cheating MOC, Government of India.
F (ix) Role of A-3 Anand Mallick. 172 F (x) Role played by A-2 Vikash Patni 179 F (xi) Role played by A-1 M/s VMPL. 186F (xii) Whether the ingredients of the offence of cheating 187 stands proved.
F (xiii) Whether the accused persons i.e. A-1 M/s VMPL, A-2 188 Vikash Patni and A-3 Anand Mallick acted in pursuance to a criminal conspiracy.
F (xiv) Conclusion 195CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 4 of 467 (G) Role of accused Ministry of Coal officers i.e. A-4 H.C. 195 Gupta, A-5 K.S. Kropha And A-6 K.C. Samria G (i) Whether the process of receiving the applications or 209 their subsequent processing in Ministry of Coal was dealt with in accordance with the Provisions of Central Secretariat Manual Of Office Procedure.
G (ii) Whether the Provisions of Manual of Office Procedure 226 were applicable to the proceedings of Screening Committee.
G (iii) Whether the guidelines issued by MOC governing 233 allocation of captive coal blocks were binding and were mandatorily to be followed by MOC officers and by the Screening Committee.
G (iv) Whether in the processing of applications in MOC 252 there was any violation of guidelines governing allocation of captive coal blocks i.e. whether the applications were checked for their eligibility and completeness or not.
G (v) Whether senior MOC officers were responsible for 262 ensuring checking of applications for their eligibility and completeness in terms of the guidelines and also whether accused MOC officers were aware of the process undertaken in MOC in processing of applications before they were considered by the Screening Committee.
G (vi) Whether there was any violation of guidelines in the 283 Screening Committee meeting.
G (vii) Whether the recommendations made by 36th 288 Screening Committee meeting were unanimous.
(a) Constitution of Screening Committee. 291 (b) Working of 36th Screening Committee 300b(i) Whether State Government of Bihar was a necessary invitee to 36th Screening Committee Meetings Or Not.
b(ii) Whether the comments of State Government of 310 Bihar were necessary to be placed before the Screening Committee.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 5 of 467 b(iii) Whose responsibility was it to ensure that notice of Screening Committee meetings is issued to all members and to also ensure that comments of all concerned are made available to the Screening Committee for its consideration.
(c) Process followed by 36th Screening Committee 325 which led to selection of A-1 M/s VMPL as a joint allocatee for allocation of Moira-Madhujore Coal Block.
(d) Significance of signing the recommendation 348 sheets by the members of Screening Committee in its meeting held on 03.07.2008 and whether it conveys unanimity.
G (viii) Processing of minutes of 36 th Screening Committee 360 meeting in Ministry of Coal and in Prime Minister Office leading to approval of the recommendations by Prime Minister as Minister of Coal.
G (ix) Whether Company A-1 M/s VMPL was recommended 370 for allocation of Moira-Madhujore Coal Block by 36 th Screening Committee only for its proposed iron and steel project at Bihar or also for its existing plant at West Bengal.
(H) Checking of applications post-approval of 396 recommendations of Screening Committee by Prime Minister as Minster of Coal.
(I) Offence of criminal misconduct i.e. u/s 13 (1) (d) P.C. Act, 403 1988.
(J) Criminal conspiracy u/s 120-B IPC 408(K) Section 409 IPC and Section 13 (1) (c) P.C. ACT, 1988 as 410 against A-4 H.C. Gupta (L) Validity of sanction u/s 19 PC Act, 1988 as accorded 412 against A-5 K.S. Kropha and A-6 K.C. Samria by the Competent Sanctioning Authority.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 6 of 467 (M) Whether sanction u/s 197 Cr. PC was required against A-4 426 H.C. Gupta, A-5 K.S. Kropha and A-6 K.C. Samria (N) Effect of Prevention of Corruption (Amendment) Act, 2018 431 on the present proceedings.
(O) Final Conclusion 461 (P) Epilogue 4631. The present case pertains to allocation of Moira and Madhujore (North and South), Raniganj, West Bengal, coal block in favour of M/s Vikash Metal and Power Ltd. (hereinafter referred to as "M/s VMPL") by Ministry of Coal (MOC), Government of India.
(A) FACTS
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 eligible to apply for one or more of such Coal Blocks. The CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 7 of 467 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 for any given coal block were all made available on the website of MOC i.e. www.coal.nic.in. The applications were to be submitted in five copies. The details filled in the application form were also to be furnished in soft copy in a CD alongwith the application.
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 prescribed format of 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 proposed to be established by them regarding which Coal Block allocation was sought for. The companies were required to mention their turnover of the last three preceding years beside mentioning the profit earned in the last three years and the net worth as on 31.03.2006. The details of the 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 was CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 8 of 467 also required to be mentioned in the application form. Further the applications were to be submitted in five copies.
4. As regard coal blocks reserved for companies engaged in non-power sector, MOC received about 674 applications from 184 companies. For Moira and Madhujore (North and South) coal block a number of companies including M/s VMPL applied for its allocation. The application of M/s VMPL (Accused No. 1) dated 11.01.2007 was signed by its authorised signatory/Director namely Anand Mallick (Accused No. 3) and was submitted to MOC on 12.01.2007. While 35th Screening Committee dealt with applications received for allotment of coal blocks reserved for companies engaged in power sector, the applications received for allocation of coal blocks reserved for end use other than power were considered by 36th Screening Committee.
5. In accordance with 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 Coal Block applied for was situated [State of West Bengal in the present case] or the end use project was situated or was proposed to be established (State of Bihar in the present case) for their views and comments. One copy of all the applications was however retained in MOC. The applications were thereafter referred to 36th Screening Committee for its consideration with comments/views of various stakeholders as were CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 9 of 467 received in MOC.
6. The Screening Committee as was constituted in MOC by Government of India was given the task of screening the applications of various applicant companies and to thereafter make recommendation for allotment of various Coal Blocks in favour of eligible companies. The 36th Screening Committee thus conducted its meetings on 7/8.12.2007, 7/8.02.2008 and 03.07.2008 to consider applications qua coal blocks reserved for companies engaged in non- power sector. The Screening Committee also gave all the applicant companies an opportunity to present their case before it beside also requiring them to fill up a feedback form, containing details of "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 copies at the time of making presentation.
7. On 07.02.2008 A-2 Vikash Patni, A-3 Anand Mallick alongwith one Ranjan Barman (PW-15) appeared on behalf of A-1 M/s VMPL for presentation before the Screening Committee and also submitted the feed-back form. 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. Moira and Madhujore (North and South) Coal Block was however recommended for being allotted jointly in favour of six companies including A-1 M/s VMPL.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 10 of 467
8. However, after some time a lot of hue 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. Central Vigilance Commission thus chose to look into the entire allocation process as there were large number of allegations of corruption 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.
A (i) INVESTIGATION BY CBI
9. 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 Moira and Madhujore (North and South) Coal Block to A-1, M/s VMPL. 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 VMPL warranting further investigation. Accordingly an FIR was registered on 13.10.2012 against A-1 M/s VMPL 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 CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 11 of 467 was thereafter carried out by IO Inspector Rajbir Singh.
10. During the course of preliminary enquiry it was found that the allotment of about 300 acres of land earlier allotted to M/s VMPL was in fact already cancelled by Bihar Industrial Area Development Authority (BIADA) vide their letter dated 21.09.07. However M/s VMPL was found to have concealed this fact of cancellation of allotment of land before the Screening Committee when they appeared for their presentation and even in the feed back form filled and submitted by them they continued to represent that 300 acres of land stand allotted to them. It was also found that the figures of turnover, profit and net-worth of the company as were mentioned in the application form was also not correct. It even did not tally with copy of the balance sheets of the company for the past 3 years as were annexed with the application. It was also found that the application of company M/s VMPL was also not complete as it had not annexed with it the project report as was mandated by the guidelines issued by MOC.
11. Subsequently during the course of investigation the company however claimed that the letter of cancellation of allotment of land issued by "BIADA" was not received by them though they admitted having received earlier letters from "BIADA" where on account of non- compliance with certain conditions the land was proposed to be cancelled by "BIADA". The investigating officer, Insp. Rajbir Singh accordingly sought to collect information regarding receipt of letter of cancellation of allotment of land sent by "BIADA" through registered CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 12 of 467 post to M/s VMPL from the concerned post office. However the post office authorities claimed inability to make available record pertaining to the postage or receipt of said letter as the record which was more than 2 years old was stated to be not available with them. During the course of investigation IO Insp. Rajbir Singh also recorded statements of various persons from Ministry of Coal and Ministry of Steel who were involved in the process of allotment of Coal Blocks and came to the conclusion that the allotment of land was neither a pre-requisite condition nor a mandatory condition for allotment of Coal Blocks. Accordingly a closure report was filed in the Court opining that the allegations either against M/s VMPL or its Directors or even against the public servants could not be substantiated during the course of investigation.
12. It was in these circumstances also concluded by IO Inspector Rajbir Singh 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 false data regarding its financial strength by the company, 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 to MOC and thus it was of no consequence to Ministry of Steel in classifying the company under any of the category as were devised by it. 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 eligibility CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 13 of 467 was not undertaken by the officers of MOC pursuant to any criminal conspiracy with any of the applicant companies including the accused company M/s VMPL. No offence was thus found to have been committed either by A-1 M/s VMPL or its Directors/officers or even by any of the public servants involved in the entire coal block allocation process.
A (ii) PROCEEDINGS BEFORE THE COURT
13. However vide a detailed order dated 15.10.2014, this Court disagreed with the conclusion so drawn by the CBI and ordered further investigation in the matter. Accordingly a supplementary final report was filed on 07.04.2015 by IO Insp. Rajbir Singh. In the said supplementary report filed u/s 173 (8) Cr.PC, the CBI changed its stand and charge-sheeted three accused persons i.e. company M/s VMPL, Vikash Patni, Managing Director of M/s VMPL, and Anand Mallick, the authorised signatory of company M/s VMPL for the offence u/s 120-B/420 IPC. As regard all other directors of the company or the public servants involved in the process of allocation of coal block to the company it was stated that no offence was found to have been committed by them.
14. The said supplementary report filed by CBI was considered by this Court vide a order dated 05.08.2015. After detailed discussion it was observed that prima facie H.C. Gupta, the then Secretary, Coal and Chairman, Screening Committee, K.S. Kropha, Joint Secretary, Coal and Member Convener, Screening Committee and K.C. Samria, CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 14 of 467 Deputy Secretary/Director, CA-I Ministry of Coal were found to have conspired with private parties involved. Offences under Section 120- B/409 IPC r/w Section 13 (1) (c)/13 (1) (d) P C Act, 1988 were found to have been committed by them. However as except for H.C. Gupta the other two public servants were still in Government service and thus congnizance of offences under P.C. Act 1988 could have been taken against them only if prior sanction u/s 19 P.C. Act, 1988 is accorded by the Competent Sanctioning Authority. Accordingly vide order dated 05.08.2015 itself, the matter was sent 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 sanctioning authority for considering according of sanction u/s 19 P.C. Act, 1988 against the two public servants. The competent sanctioning 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 punishable under other provisions of law in respect of the acts mentioned in the sanction order.
15. Thereafter vide order dated 05.02.2016 cognizance of the offence u/s 13 (1) (d) P.C. Act was taken against accused H.C. Gupta CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 15 of 467 (A-4), K.S. Kropha (A-5) and K.C. Samria (A-6) and also cognizance was taken of the offence U/S 409 IPC and of the offence U/S 13 (1)
(c) P C Act, 1988 against accused H C Gupta. Cognizance for the offence u/s 120-B/420 IPC was taken against A-1 M/s VMPL, its director Vikash Patni (A-2) and also against Anand Mallick (A-3). Cognizance was thus also taken against all the six accused persons namely company M/s Vikash Metal & Power Ltd, its Directors Vikash Patni, Anand Mallick and public servants namely H. C. Gupta, K. S. Kropha and K. C. Samria for the offences u/s 120-B/409/420 IPC read with Section 13 (1) (c)/13 (1) (d) P C Act, 1988.
(B) CHARGES FRAMED
16. Subsequently, when all the accused persons put in their appearance, copies of the charge sheet were supplied to them. After due compliance of Section 207 Cr.PC, when the matter was fixed for arguments on the point of charge, Ld. Counsels for the accused persons very fairly stated that though charges may be framed against the accused persons for the offences u/s 120-B IPC and for the offences u/s 120-B/409/420 IPC and also u/s 13 (1) (c)/13 (1) (d) P.C. Act, 1988 but they shall be demonstrating, during the course of trial, that the allegations levelled against the accused persons are completely false.
17. Accordingly, vide order dated 12.08.2016 charge for the various offences as are mentioned in the table below were framed against the accused persons on 19.08.2016.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 16 of 467 CHARGES FRAMED (I) (II) S.No Name of accused Charges Common to all Charges separately framed 1 A-1 M/s VMPL (i) 120-B IPC 420 IPC
(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 2 A-2 Vikash Patni (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 3 A-3 Anand Mallick (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 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.
18. At this stage it would be worthwhile to mention that as regard CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 17 of 467 company A-1 M/s VMPL, it was informed by Ld. Counsel Sh. Saugat Sinha that winding up orders have since been issued against the company by Hon'ble High Court of Kolkata and an official liquidator has been appointed by the Hon'ble High Court. Accordingly Ld. Counsel Sh. Sougat Sinha stated that he has been accordingly appointed by the Official Liquidator to represent and protect the interest of company M/s VMPL in the present proceedings.
19. Soon after framing of charges for various offences against the accused persons and before commencement of recording of prosecution evidence the accused persons were also called upon u/s 294 Cr.PC to admit/deny the genuineness of documents relied upon by the prosecution. The accused persons were also given an option that qua any document if they are unable to admit or deny the genuineness thereof, for want of knowledge then they may so mention against it in the remarks column in the list of documents supplied to them by the prosecution.
20. Prosecution thereafter in order to prove its case examined 22 witnesses. Examination-in-chief of three witnesses namely Sh. V.P. Sharma, Sh. Ram Naresh and Sh. K.P. Singh was however led by way of affidavit u/s 296 Cr.PC as their evidence was of formal character only. Ld. Counsels for the accused persons were thereafter given liberty to cross-examine the said three witnesses, if they intend to. However Ld. Counsels for all the accused persons chose not to cross-examine them. Thus evidence of said three witnesses CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 18 of 467 remained completely unimpeached at the altar of cross-examination. Statement of all the accused persons were thereafter recorded u/s 313 Cr.PC. A-2 Vikash Patni, A-4 H.C. Gupta and A-5 K.S. Kropha however also chose to submit their written statements u/s 313 (5) Cr.PC but the other accused persons did not file any such written statement u/s 313(5) Cr.PC despite liberty having been given to them. Accused persons however thereafter also examined seven (7) witnesses in their defence. Detailed final arguments in the matter were thereafter heard as were addressed by Ld. Sr. P.P. Sh. Sanjay Kumar on behalf of prosecution and by Ld. Counsel Sh. Sougat Sinha for A-1 M/s VMPL, Ld. Counsel Dr. Sushil Kumar Gupta for A-2 Vikash Patni, Ld. Counsels Dr. Sushil Kumar Gupta and Sh. Ratnesh Deo for A-3 Anand Mallick, Ld. Counsel Sh. Rajat Mathur for A-4 H.C. Gupta, Ld. Counsel Sh. Rahul Tyagi for A-5 K.S. Kropha and A-6 K.C. Samria.
Written submissions were also filed on behalf of all the accused persons.
(C) EVIDENCE
21. 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.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 19 of 467 C (i) PROSECUTION WITNESSES PW Name and Deposition/Role of the witness in the present case No. designation of the Witness PW-1 V.S. Rana, He was posted as Under Secretary, Ministry of Coal Deputy from August 2005 till December 2013. He was Secretary, associated with the processing of applications of Ministry of various private companies received by Ministry of Home Affairs Coal seeking allocation of coal blocks including that of A-1 M/s VMPL. 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 or documents/communications which were received by them in MOC during that period.
PW-2 Sh. Anil He was the Executive Director, BIADA in the year Kumar 2006. He deposed about the allocation of 300 acres Thakur, of land to M/s Vikash Metal and Power Ltd. by BIADA (Retired) Joint for establishing its proposed integrated steel plant. He Director, Govt. also deposed about subsequent cancellation of said of Bihar allotment of land to M/s VMPL by BIADA vide order dated 21.09.2007 on account of non-payment of cost of land and also for non-construction of boundary wall around the land by the time limit fixed by BIADA.
PW-3 Sh. Arbinda He was a public independent witness who Roy, (Retired) accompanied the CBI team in the search operation Sr. Manager carried out at the office of M/s VMPL at Hemant Basu, Vigilance, Sarani, Kolkata on 22.09.2012. He thus deposed UCO Bank about the various documents collected by CBI during the said search operation.
PW-4 Sh. Devanand In January 2007 he was posted in Darbhanga office of Dutta, BIADA and was looking after the dispatch section. He (Retired) Area had posted the cancellation order of land issued by Incharge, BIADA dated 21.09.2007 to M/s VMPL by registered BIADA post and had made necessary entry in the dispatch register. He also had pasted the postal receipt of the letter addressed to M/s VMPL in the dispatch register.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 20 of 467 PW-5 Sh. Raj Kumar He was the public independent witness who joined Handa, Dy. SP T.P. Singh of CBI in the search operation (Retired) carried out at the residence of accused Anand Mallick Head Clerk, on 22.09.2012. He thus deposed about the various Vigilance documents collected by CBI during the said search Department, operation.
SDMC PW-6 Sh. Sulpani He was the public independent witness who joined Chaudhari, CBI officers in the search operation of a flat at AJC (Retired) Sr. Bose Road, Kolkata belonging to Akash Patni, Vimal Manager, Patni and A-2 Vikash Patni as was carried out on PNB, Kolkata 22.09.2012. He thus deposed about the various documents collected by CBI during the said search operation.
PW-7 Sh.Manas In January 2007 he was posted as Assistant in the Kumar office of Coal Controller, Kolkata. He deposed that in (Retired) January 2007 he alongwith his three colleagues from Assistant from the office of Coal Controller had come to MOC Delhi the office of on the directions of his senior officers. At MOC the Coal officers told them to report at Scope Minar, Laxmi Controller, Nagar office. He further deposed that at Laxmi Nagar Kolkatta office, Sh. R.S. Negi, an official of MOC asked them to segregate the various applications already received from different applicant companies into 5 sets i.e. for CMPDIL, MOC, Ministries and State Governments. He further deposed that beside doing the aforesaid work of segregating they did not undertake any other work. He also deposed that while R.S. Negi from MOC was supervising their work, V.S. Rana (PW-1) also visited them on 2-3 occasions. He also staed that on one occasion even A-5 K.S. Kropha also met them and told them to complete the work assigned to them. He also deposed that subsequently upon completion of work he alongwith his colleagues had written a request dated 08.02.2007 for grant of honorarium of Rs. 5000/- per person and the same was given to Sh. R.S. Negi by them.
PW-8 Sh. Sumanta He was LDC in the office of Coal Controller, Kolkata.
Biswas, UDC He deposed that in July 2007, he alongwith his three from the colleagues from the office of Coal Controller had office of Coal come to MOC office, New Delhi and from there Sh.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 21 of 467 Controller, R.S. Negi and Sh. V.S. Rana had taken them to Kolkatta Scope Minar, Laxmi Nagar Office. He further stated that at Laxmi Nagar office they were asked to arrange the applications in alphabetical order and accordingly they did no other work. He also deposed that subsequently in the month of August 2007 he alongwith three other officials of the office of Coal Controller again reported at the office of MOC, New Delhi and on this occasion they were simply asked to flag the balance sheets as were available in the various applications and they accordingly did so.
PW-9 Sh. Jaish He was an officer of United Bank of India, Kaushambi Kumar Branch, Ghaziabad, UP. In February 2015 on the Bhasin, Dy. request of IO Insp. Rajbir Singh he had provided him Manager, the original account opening form and other identity United Bank documents of A-3 Anand Mallick as were available in of India the bank records with respect to saving bank account of Anand Mallick as was maintained in their bank.
PW-10 Ms. Vini She was initially posted as Director and thereafter as Mahajan, Joint Secretary in PMO from 2006 to 2008. She was Additional associated with the processing of various files in PMO Chief regarding Coal Block Allocation matters and Secretary accordingly proved the same. She also deposed that (Health), Govt. after recommendation of 36th Screening Committee of Punjab meeting were received in PMO from MOC then Principal Secretary to the PM had discussed the matter with Secretary (Coal) and Secretary (Steel) on 16.07.2008 and in which meeting it was confirmed that the proposals were based strictly on merits of the applicants, including the recommendations of the state governments where the blocks are located. She had accordingly put up a note dated 16.07.2008 in file Ex. PW 28/C (colly) (D-120) and pursuant to which Hon'ble Prime Minister Dr. Manmohan Singh as Minister (Coal) approved the recommendations of 36th Screening Committee on 17.07.2008 subject to consideration of certain issues relating to Urtan, Behraband (North) Extension and Vijay Central coal block and also that MOC may satisfy itself that there is no undue delay in development of any earlier allotted coal blocks to the allocatee companies. She further deposed that the fact as to whether CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 22 of 467 proposals were based on merit or not were however not got verified in PMO.
PW-11 Sh. Rahul He was operation head in Axis Bank, Swasthya Vihar Tyagi, Branch, Delhi. In March 2015 he had handed over to Operation CBI original account opening form of saving bank A/c Head, Axis of Anand Mallick alongwith other identity documents Bank Noida of Anand Mallick as were available in their records Branch with respect to saving bank A/C of Anand Mallick.
PW-12 Sh. N.R. He was posted as Director Ministry of Steel from Dash, October 2006 till October 2011 and was Incharge of Executive ID Wing i.e. Industrial Development Wing. He was Director, associated with the processing of applications of Railway various applicant companies including that of M/s Board, Delhi VMPL as were received in Ministry of Steel from Ministry of Coal for obtaining their views/ comments regarding allotment of captive coal blocks. Under his signatures the comments of Ministry of Steel placing various applicant companies under different categories as were devised by Ministry of Steel were communicated to Ministry of Coal. He also deposed that M/s VMPL was kept in category-VI. He also deposed that no comparative statement detailing the inter-se priority of various applicant companies was provided by MOC to the members of the Screening Committee in the meeting held on 03.07.2008.
PW-13 Sh. A Sanjay He was Under Secretary, MOC, Government of India Sahay, from November 2012 till 01.07.2015. Vide letter dated Director 26.03.2014 he had provided IO Insp. Rajbir Singh, (Personnel) copy of joint allocation letter dated 06.10.2009 issued South Delhi, by MOC qua allocation of Moira-Madhujore coal block MCD in favour of six joint allocatee companies including M/s VMPL. He also provided copy of letter dated 14.02.2014 vide which allocation of Moira-Madhujore coal block in favour of all the six joint allocatee companies was canceled by MOC. He was also associated with the proceedings which finally resulted in de-allocation of Moira-Madhujore coal block in favour of all the six joint allocatee companies.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 23 of 467 PW-14 Sh. Shashi From December 2005 till March 2011 he was posted Ranjan as Dy. Secretary/Director in DIPP. He had Kumar, IAS, accordingly attended meetings of 36 th Screening Jt. Secretary Committee in MOC including the final meeting held on in the 03.07.08. He deposed that in the said meeting he had Department of reiterated the recommendation of DIPP qua Moira- Telecommunic Madhujore coal block as were already communicated ation, Govt. of to MOC. He further deposed that 36th Screening India Committee had recommended joint allocation of Moira-Madhujore coal block in favour of six applicant companies including M/s VMPL.
PW-15 Sh. Ranjan He deposed that on 07.02.08 he had accompanied A-
Barma, 2 Vikash Patni and A-3 Anand Mallick to the Chartered Screening Committee meeting held in MOC. He Accountant deposed that at that time he had read out the presentation before the Screening Committee on behalf of M/s VMPL. He also deposed that as the presentation was in English so on the request of Vimal Kumar Patni i.e. father of A-2 Vikash Patni he had only come to the Screening Committee to read out the presentation which was in English and especially since Vikash Patni was not proficient in English. He also claimed that some feed-back form which was already filled up and signed was also brought by the other persons and was submitted to Screening Committee. He however but claimed ignorance as regard the details filled therein.
PW-16 Sh. Yogesh He was a Chartered Accountant working in a firm M/s Gupta, S. Jaykishan. The said firm was the Statutory Auditor Chartered of M/s VMPL from 2003 to 2011. He accordingly Accountant proved the audited balance sheets of M/s VMPL as were annexed with the application Ex. P-96 (Colly) (D-8) of the company submitted to MOC seeking allocation of a coal block. He also identified the balance sheets of the company M/s VMPL i.e. Ex. P- 80 (Colly) (D-87) as were collected by CBI during the course of investigation. He also identified the stamp of his firm M/s S. Jaykishan beside also identifying his own signatures and that of his partner Sh. B.K.
Newatia on the said balance sheets.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 24 of 467 PW-17 Sh. Rajkishan He was Under Secretary, DOPT, Government of India.
Vats, Under He proved the sanction u/s 19 PC Act, 1988 accorded Secretary in by the competent sanctioning authority with respect to Department of necessary prosecution of A-5 K.S. Kropha and A-6 Personnel and K.C. Samria for the offences u/s 13 (2) r/w 13 (1) (d) Training, Govt. and for any other offences punishable under other of India provisions of law in respect of said offences by the Court of Competent Jurisdiction.
PW-18 Dr. Sabya During the year 2007-08 he was Secretary, Sachi Sen, Commerce and Industries, Government of West (Retired) Bengal. He proved the various recommendations as Commissioner were sent to MOC by Government of West Bengal General Land qua allocation of coal blocks including Moira- Reforms and Madhujore coal block situated in state of West Additional Bengal. He also deposed that in the Screening Chief Committee meetings Sh. Bhaskar Khulbe, the then Secretary, Advisor Industries, Government of West Bengal had Govt of West represented the Government of West Bengal. He also Bengal. deposed that subsequent to Screening Committee meeting held on 03.07.08, Sh. Bhaskar Khulbe had written a letter dated 04.07.08, Ex. PW 18/C to K.S. Kropha, Joint Secretary, Coal mentioning therein the end use capacity of the companies in West Bengal who were recommended for allocation by the Screening Committee on 03.07.08 and requested that the share allocated to each of the said companies may be indicated so that the same may be conveyed to Commerce and Industries Department, Government of West Bengal. He further stated that in the said communication dated 04.07.08 the names of six (6) companies were mentioned but the name of M/s VMPL was not mentioned.
PW-19 IO Inspector, He was the main investigating Officer of the case. He Rajbir Singh 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.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 25 of 467 PROSECUTION WITNESSES WHOSE EVIDENCE WAS LED BY WAY OF AFFIDAVITS U/S 296 CR. PC.
S. Name and Deposition/Role of the witness in the present
No. designation of case.
the Witness
1 Ram Naresh, In the year 2012, he was working as Section Officer,
Under Secretary, CA-1 (A) Section, Ministry of Coal. He had handed
Ministry of over various documents/files relating to coal block
Agriculture, Govt allocation matters to Dy.SP S.P. Rana during the
of India, New Delhi course of preliminary inquiry registered by CBI vide
receipt memo dated 06.06.2012.
2 Ved Prakash He was working as Section Officer CA-1 (B) section,
Sharma, Retired Ministry of Coal in the year 2012. In the year 2012 he Section Officer, too had handed over various files/ documents of MOC CA-1, Section, to Dy. SP S.P. Rana CBI and who seized them vide Ministry of Coal production-cum-receipt memo dated 18.06.2012 (D-
16) during the course of preliminary inquiry No. PE 219-2012-E-0002 registered by CBI.
3 K.P. Singh, He was Incharge Malkhana, EO-1, CBI, New Delhi.
I/c Malkhana, He proved the relevant entries of the register CBI, EO-I maintained in the malkhana by him vide which various files/documents/memos were deposited with him by various CBI officers initially during the course of preliminary enquiry and subsequently during the course of investigation.
C (ii) DEFENCE WITNESSES
DW Name and Deposition/Role of the witness in the present
No. designation of case.
the Witness
DW- Inspector He was IO of another coal block allocation matter
1 Jitender Sharma, registered by CBI for allocation of a coal block to M/s
CBI, EO-I, New Grace Industries Ltd. by 34th Screening Committee of Delhi MOC. He was examined as regard statement u/s 161 Cr.PC of Sh. Prem Raj Kuar, the then Section (examined on Officer, MOC recorded by him during the course of behalf of A-5 K. investigation of the said other case. S. Kropha) CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 26 of 467 DW-2 M. R. Atrey, He was though the initial IO of the present case but Inspector, EO-I, was also associated with the preliminary enquiry CBI, New Delhi conducted by CBI prior to registration of the present case against M/s VMPL. He deposed that during the (examined on course of PE he had verified various claims made by behalf of A-3, company M/s VMPL in its application and the feed- Anand Mallick) back form and in this regard photocopies of various documents were handed over to him by Anand Mallick and Vikash Patni. After registration of the present case he had only issued the necessary authorisation in favour of different CBI officers for conducting search and seizure operation at different places.
DW-3 Ms. Saswati She was senior Manager (Legal) in Bengal Poddar, Sr. Aerotropolis Projects Ltd. at Kolkata. She was Manager (Legal), examined so as to prove that the area falling under Bengal Moira-Madhujore coal block was in fact overlapping Aerotropolis with the area acquired by Government of West Projects Ltd., Bengal for the Aerotropolis Projects. Kolkata (examined on behalf of A-2, Vikash Patni) DW-4 Arun Kumar He was Assistant Land Acquisition Officer Purba Dhar, Assistant Burdwan District, West Bengal. He had produced Land Acquisiton copy of various notifications issued by Government Officer at Purba of West Bengal u/s 4 and Section 6 of Land Burdwan District, Acquisition Act, 1894 with respect to various parcels West Bengal of land as were acquired by Government for establishing and developing an Airport at Andel (examined on District Burdwan. He also produced a chart showing behalf of A-2, comprehensively at one place the details of parcels Vikash Patni) of land which were acquired by way of various notifications u/s 4, Land Acquisition Act, 1894 by Government of West Bengal.
DW-5 Bhaskar Khulbe, He was the then Industrial Advisor, Government of Secretary PMO, West Bengal. He had attended both 35 th and 36th Govt. of India Screening Committee meetings in MOC as a (examined on representative of Government of West Bengal. He behalf of A-4 accordingly deposed about the proceedings so H.C. Gupta) conducted in the various meetings attended by him CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 27 of 467 and the final recommendation made by 36 th Screening Committee.
DW-6 Shivraj Sing, He was the then Chief Secretary, Government of Retired IAS Chattisgarh. He had attended 36th Screening officer of Committee meeting held on 03.07.08 as a Chattisgarh representative of Government of Chhattisgarh. He Cadre. accordingly deposed about the proceedings which took place in the said meeting and the final (examined on recommendations made by the Screening behalf of A-4 Committee.
H.C. Gupta) DW-7 Prem Raj Kuar He was the then Section Officer of CA-I Section, Deputy MOC. He was examined as regard his statement Secretary in recorded u/s 161 Cr.PC by DW-1 Insp. Jitender Department of Sharma during the investigation of the case Consumer registered against M/s Grace Industries Ltd. He was Affairs, Govt. of also examined as regard the scrutiny of the India application if undertaken by MOC with respect to (examined on applications received qua 34th Screening Committee. behalf of A-5 K.
S. Kropha)
22. 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 Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 28 of 467 (D) ARGUMENTS D (i) Arguments on behalf of Prosecution
23. It was vehemently argued by Ld. Sr. P.P. Sh. Sanjay Kumar that the present case is a classic example of collusion between private parties and public servants involved in the allocation process of Moira-Madhujore coal block in favour of A-1 M/s VMPL. It was submitted that not only in its application submitted to MOC, the company M/s VMPL had misrepresented about the status and stage of its progress made towards establishing the proposed integrated steel project by falsely continuing to represent that it has been alloted 300 acres of land by BIADA but it also misrepresented about its financial strength i.e. turnover, profit and net-worth by mentioning financial figures of other companies. It was also submitted that as per the guidelines governing allocation of captive coal blocks issued by MOC, the applicant company M/s VMPL was not authorised to mention the financial figures of any other company as it was neither a Special Purpose Vehicle (SPV) nor a Joint Venture company. It was also submitted that even the entire application as was submitted to MOC was completely silent that M/s VMPL was in any manner related to Impex Group of Companies much less was a company of Impex Group. It was further submitted by Ld. Sr. PP Sh. Sanjay Kumar that in fact from the records of Government of Bihar, it is apparent that M/s VMPL never intended to establish any integrated steel plant in Bihar much less in District Begusarai and had changed the very proposed end use project by representing to Government of Bihar that they now intend to establish a power plant of 2000 MW capacity.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 29 of 467 It was also submitted by Ld. Sr. P.P. that from the aforesaid facts, it is crystal clear that the applicant company M/s VMPL and its directors and officers were having guilty intention from the beginning itself to cheat MOC, Government of India and thereby obtaining allocation of a captive coal block in favour of the company. It was submitted that the company never disclosed before 36 th Screening Committee that it is no longer interested in establishing the proposed integrated steel plant.
24. As regard the role of MOC officers, it was submitted that the said officers did not ensure that the applications so received by MOC were got duly checked for their eligibility and completeness before copies thereof were sent to various stakeholders. It was submitted that from the evidence led on record by prosecution, it has been clearly established that accused MOC officers were well aware that the applications have not been so checked for their eligibility and completeness in MOC. It was also submitted that no project report was in fact filed with the application and accordingly the application of of M/s VMPL was liable to be perse rejected. It was also submitted that even if it is presumed for the sake of arguments that company M/s VMPL was entitled to use the figures of financial strength of Impex Group of companies then also the audited annual accounts/reports of the said companies were not annexed with the application and on this score also, the application was liable to be rejected in MOC itself on account of being incomplete. It was also submitted by Ld. Sr. P.P. that despite company M/s VMPL having been not recommended by the coal bearing state i.e. state of West CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 30 of 467 Bengal for allocation of any coal block much less for Moira-Madhujore coal block and at the same time Ministry of Steel had put M/s VMPL under category-VI, so there was no reason as to why the Screening Committee could have recommended the name of M/s VMPL for allocation of Moira-Madhujore coal block. It was also submitted by Ld. Sr. P.P. that despite the company M/s VMPL having applied for allocation of a coal block for its captive use in the integrated steel plant to be established in Bihar and the 36 th Screening Committee having also recommended it for allocation of Moira-Madhujore coal block for its proposed plant in Bihar but for reasons best known to the accused MOC officers, final allocation letter was issued jointly to six allocatee companies including M/s VMPL for Moira-Madhujore coal block stating that the coal block has been allocated to M/s VMPL for its proposed project at Bihar and also for its existing plant at West Bengal.
25. It was thus submitted by Ld. Sr. P.P. that the aforesaid circumstances clearly proves the existence of a criminal conspiracy amongst the accused persons. It was also submitted that here is a case where actions of accused MOC officers goes beyond the stage of carelessness, negligence and culpability in their actions is evident on the face of record.
26. In the light of aforesaid submissions, it was submitted by Ld. Sr. P.P. that the prosecution has been clearly successful in proving its case against all the six accused persons for the various charges framed against them. All the six accused persons were thus prayed to CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 31 of 467 be convicted.
27. In support of his submissions Ld. Senior P.P. placed reliance upon the following case law:
S. Title Citation No. 1 Kanak Lata Ghosh Vs Amal Kumar Ghose AIR 1970 Cal 328 2 G.H. Sridevi vs State of Mysore (1969) 19 Law Rep. 415 3 Smt. Janno devi Vs Gaja Singh 1966 All. L.J. 425 4 Ayisa beevi Vs Abboo Backer AIR 1971 Ker. 231 5 Sunil V/s. State of Haryana 2003 (2) RCR (Cri.) 314 6 Trimukh Maroti Kirkan vs State Of 2006 (1) SCC 681 Maharashtra 7 N. Vijaya @ Ameen Vs. State of Karnatka 2010 Crl. L J. 1050 8 Sardul Singh Vs. State of Haryana 2002(4) RCR (Criminal) 561 (SC) 9 C. Muniappan v. State of Tamil Nadu [(2010) 9 SCC 567] 10 State of Himachal Pradesh Vs. Krishan Lal 1987 Crl.L.J. 709, AIR Pradhan 1987 SC 773 11 M.S.Reddy Vs. State Inspector of Police 1993 Crl.L.J. 558 AP 12 Firozuddin Basheeruddin and others Vs. 2001 Crl.L.J 4215 State of Kerala 13 State to Superintendent of Police, CBI/SIT 1999 Crl.L.J. 3124 Vs. Nalini 14 Yashpal Mittal Vs. State of Punjab 1997(4) SCC 540 15 Kehar Singh and others Vs. State (Delhi 1989 Crl.L.J. 1 Administration) 16 Adnan Bilal Mulla V/s. State of Maharsthra 2006 Crl.L.J.564 17 Yogesh Sachin Jagdish Joshi Vs. State of 2008 Crl .L .J. 3872, SC Maharashtra 18 Ishwarlal Girdharilal Parekh Vs. State of AIR 1969 SC 40 Maharashtra & Ors. CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 32 of 467 19 Ram Prakash Singh Vs. State of Bihar 1998 Crl. L. J. 502 20 State of UP Vs. Lakhmi 1998 Crl.L.J. 1411 21 Gobin Saikia Vs. State of Assam 2006 Crl. L. J. 1815. 22 Prithi Singh Vs. Union of India AIR 1959 Manipur 43. 23 State Vs. K. Narasimhachary 2006 Cr. L. J. 518(Feb.) 24 Prem Prakash Vs. State of Rajasthan 1971 WLN 408 (Raj.) 25 R. V. E. Venkatachala Gounder Vs. Arulmigu 2003(4) RCR(Civil) 704. Viswesaraswami & V. P. Temple and others. 26 Channappa Vs. State 1980 Crl. L.J. 1022(Kant.) 27 Ladli Prasad Zutshi Vs. Emperor AIR 1931 All 364. 28 Rajeshwar Vs. State 1992 Crl. L. J.661(Mad) 1996 Crl. L. J. 889(SC) 29 Krishna Mochi Vs. State of Bihar 2002 (2) RCR (Criminal) 568 SC 30 Suchha Singh Vs. State of Punjab. 2003 (4) RCR (Criminal) 373 (SC). 31 Murari Lal Vs. State of M.P. 1980 Crl. L. J. 396 (SC). 32 Shyamal Ghosh Vs. State of West Bengal 2012 Crl.L.J. 3825. 33 Prithipal Singh Vs. State of Punjab (Criminal Appeal No.528 of 2009). (Decided on 04.11.2011) 34 Inspector of Police and Another Vs. 2015 (5) Scale 253 Battenapatla Venkata Ratnam and Another
D (ii) Arguments on behalf of company A-1 M/s VMPL.
28. It was submitted by Ld. Counsel Sh. Sougat Singha for A-1 M/s VMPL that the company has since gone in liquidation and an Official Liquidator has been appointed by Hon'ble High Court of Calcutta. It was accordingly submitted that throughout the present CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 33 of 467 proceedings, the company has been represented by the said Official Liquidator and whose primary job is to protect the interest of the company. It was submitted by him that in case, company A-1 M/s VMPL is held guilty of any offence whatsoever then no fine ought to be imposed upon the company and even under the law no fine can be imposed upon such a company which has since gone in liquidation.
29. In support of his submissions Ld. Counsel for A-1 M/s VMPL placed reliance on the following case law:
S. Title Citations No. 1 D.K. Kapur vs. Reserve Bank of India & Ors. Decided on 19.01.2001 2 Krishna Texport Industries Ltd. vs. DCM Limited Decided on 23.05.2008 D (iii) Arguments on behalf of A-2 Vikash Patni
30. It was submitted by Ld. Counsel Dr. Sushil Kumar Gupta on behalf of A-2 Vikash Patni that prosecution has miserably failed in proving its case for any of the offence for which charges have been framed against the accused. It was submitted that there was no misrepresentation at all qua any of the information mentioned in the application. It was rather argued that prosecution has sought to place reliance upon the incomplete documents in as much as from the evidence led on record by the prosecution itself it stands well proved that not only the Techno Economic Feasibility Report (TEFR) was CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 34 of 467 duly submitted along with the application of M/s Vikash Metal & Power Ltd but even the balance sheet of M/s Impex Ferotech was also duly annexed. While referring to the deposition of PW 12 Sh. N.R. Dash, Director, Ministry of Steel, it was submitted that while placing M/s Vikash Metal & Power Ltd under category-VI it was well to the knowledge of Ministry of Steel officers that the existing capacity of the company as was mentioned in the application as being 0.13 MT was at Purulia, West Bengal and not in Begusarai, Bihar where the proposed end use plant was to be established. It was submitted that PW-12 N.R. Dash though stated that Ministry of Steel placed company M/s VMPL under category VI since its existing and proposed capacity were not at the same place, but it was submitted that such an explanation was contrary to internal guidelines issued by Ministry of Steel itself. It was stated that as per the criteria laid down by Ministry of Steel, the company M/s VMPL ought to have been placed in category II and not in category VI.
31. Ld. Counsel also referred to the statement recorded u/s 161 Cr. PC of PW 12 N.R. Dash to highlight that the application of M/s Vikash Metal & Power Ltd was considered by Ministry of Steel while also referring to the TEFR as was attached with the application. It was thus submitted that from the aforesaid circumstances, it was clear that M/s Vikash Metal & Power Ltd had duly annexed TEFR with its application and its application was complete in terms of the guidelines issued by MOC.
32. As regard the figure of net-worth mentioned in the application CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 35 of 467 beside that of profit and turnover it was submitted that in accordance with the Accounting Standard-18 the figure of turnover and profit were mentioned as that of M/s Vikash Metal & Power Ltd and M/s Impex Ferrotech which was an associate company being managed by the same management. It was further submitted that as in accordance with Accounting Standard-18 for the purposes of calculating the net- worth the figure of associate companies could not have been considered so it was only the net-worth of M/s Vikash Metal & Power Ltd which was mentioned in the application. It was however also pointed out that the figure of net-worth of M/s Vikash Metal & Power Ltd was also mentioned on a lower side at Rs. 60 crore even though from the balance sheet attached, the figure was more than Rs. 64 crore.
33. It was thus submitted by Ld. Defence Counsel that it has clearly come on record that the application as is available in D-8 is an incomplete application and thus on the basis of said incomplete application no inference can be drawn. It was also submitted that even otherwise for drawing any conclusion from the application the same ought to have been read as a whole and not in piecemeal as is sought to be done by the prosecution.
34. It was also submitted that during the course of search operation carried out at the registered office of M/s Vikash Metal & Power Ltd, a copy of presentation was also recovered. While referring to the contents of the said presentation as is available in D-33, it was submitted that the same is the copy of presentation which was made CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 36 of 467 before the Screening Committee on behalf of M/s Vikash Metal & Power Ltd. It was pointed out that in the presentation it was stated that the existing capacity of sponge iron existed at Purulia, West Bengal. It was also submitted by Ld. Defence Counsel that as per the guidelines governing allocation of coal blocks issued by Ministry of Coal the application was also to be submitted in soft copy in a CD. While referring to a reply given by CMPDIL to CBI during the course of investigation as is available in D-44 [Ex. P-37 (colly)] it was submitted that CMPDIL had considered the details provided by the applicant companies including M/s Vikash Metal & Power Ltd as was available in a CD supplied to them. It was submitted that PW 19 IO Inspector Rajbir Singh has admitted that except collecting copies of application from Ministry of Coal he had not collected the same from any other authority be it the Ministry of Steel, State of West Bengal, State of Bihar or CMPDIL. It was thus submitted that the CD submitted by M/s Vikash Metal & Power Ltd along with the application has also not been placed on record by the prosecution. It was thus submitted that it was the claim of M/s Vikash Metal & Power Ltd that all the information/documents as were required to be filed along with the application were there in the CD be that TEFR or balance sheet of M/s Impex Ferrotech. It was thus reiterated that on the basis of incomplete document no inference at all can be drawn against the accused persons. Similarly, it was argued that no inference can even be drawn against the accused public servants as doubts have clearly emerged on record that the documents relied upon by the prosecution during the trial of the case are not complete. It was thus CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 37 of 467 submitted that accused Vikash Patni (A-2) deserves the benefit of doubt in this regard.
35. Ld. Counsel Sh. Sushil Kr. Gupta while referring to the form of feed back Ex. P-98 (Colly) also submitted that no misrepresentation was even made in the said feed back form. As regard the figures of net-woth as on 31.03.2006 or as on 31.03.2007 as were mentioned in the said feedback form it was submitted by Ld. Counsel Sh. Sushil Kr. Gupta that not only during the course of investigation PW 15 Ranjan Barma stated the calculation by which networth of the company seems to have been calculated by the company officials but also during the course of his deposition in the Court he demonstrated as to how the networth seems to have been calculated by the company and had conclusively shown that figures of networth mentioned in the feedback form were correctly mentioned by the company on the basis of said formula. It was again reiterated that while the application contained relevant figures of networth for the year 2005-06 as being Rs. 60 crores but in the feedback form networth figure was mentioned after undertaking proper calculation. It was thus submitted that there was no misrepresentation of any nature whatsoever in mentioning of networth in the feedback form.
36. As regard the issue of land, it was submitted by Ld. Counsel that admittedly 300 acres of land was allotted in favour of company by BAIDA. A number of correspondences in this regard were shown as having been undertaken between the company and BAIDA before allocation of said land. It was also submitted that in the CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 38 of 467 communications made by the company it was duly clarified that till the time any iron ore mine or coal mine is allotted, it will not be in a position to take any action qua allocation of land though initially a sum of Rs. 6 lacs as was demanded by BAIDA was duly deposited by the company. It was also submitted that circumstances both before and after impugned allocation of land clearly demonstrate that M/s VMPL had all good intention to establish the proposed steel project and it was always willing to undertake all necessary formalities for allocation of land only with the rider that keeping in view the market conditions it would not have been viable for the company to make any further payment to BAIDA or incur any other expenditure qua construction of boundary wall till the time an iron ore mine and coal block is allotted to it which were essential raw materials for running a sponge iron plant.
37. Ld. Counsel while referring to other communications undertaken by company with BAIDA and Department of Industries, Bihar of which BAIDA was a part, pointed that M/s VMPL had also intended to establish a power plant of 2000 MW capacity and in this regard also entered into an agreement with Bihar State Electricity Board.
38. It was further submitted that prosecution has also miserably failed in proving that company M/s VMPL and much less A-2 Vikash Patni had ever gained knowledge about cancelleation of said allotment of 300 acres of land. It was submitted that though factum of recovery of cancellation order of land issued by BAIDA during the CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 39 of 467 search operation from the corporate office of M/s VMPL is not disputed but it was also pointed out that during the course of investigation itself, it was communicated to the IO that as registered office of the company at Chittaranjan Park was under renovation so all the correspondence stood diverted to corporate office at Hemant Basusarai. It was further submitted that from mere recovery of impugned letter from inside a file containing 86 pages no knowledge can be attributed to the company or any officer/official that they gathered knowledge of any such letter issued by BAIDA cancelling allocation of land to the company. It was also submitted that even the cancellation letter mentions that if desired the company may ask for renewal of allotment of land but the company never undertook any such steps or asked for refund of Rs. 6 lacs as company did not gather any knowledge till December 2008 that land allotted has been cancelled.
39. Ld. Counsel also referred to a letter written to the Chief Minister of Bihar in the month of March 2008 by Sh. Vimal Kumar Patni, Chairman, M/s VMPL. It was submitted that soon after company gathered knowledge of cancellation of land the company took necessary steps to meet Chief Minister of Bihar so that problems being faced by the company could be addressed. It was also submitted that from the documents of the prosecution seized, it has come on record that the company was even facing law and order problems in construction of boundary wall in the impugned land even in the year 2012. It was also submitted that from the dispatch register record of BAIDA as have been proved by PW-4 Devanand Dutta, it CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 40 of 467 was clear that the said cancellation letter was sent to the registered office of the company which was under renovation and thus there was no way that the company which was operating at that time from its corporate office could have known about the same.
40. As regard knowledge of Vikash Patni about the contents mentioned in the feedback form, it was submitted that from the deposition of PW-15 Ranjan Barma, it was clear that the feedback form when it was brought to the Screening Committee meeting was already typed. It was submitted that like PW-15 Ranjan Barma, A-2 Vikash Patni had also gone to the Screening Committee meeting only for the purposes of making representation. It was thus submitted that prosecution has failed to prove any malafides on the part of A-2 Vikash Patni in making any misrepresentation to the Screening Committee.
41. It was further submitted on behalf of A-2 Vikash Patni by Ld. Counsel Dr. Sushil Kumar Gupta that prosecution has also failed to prove that any inducement was caused to Screening Committee, Ministry of Coal on account of any representation made by M/s VMPL much less on account of allotment of land, as the same was never considered as a relevant factor in recommending allocation of a coal block in favour of any applicant company. It was further submitted that during the course of cross-examination of PW 1 V.S. Rana the then Under Secretary, it has come on record that there were number of companies which were considered by the Screening Committee and even recommendations for allocation of captive coal blocks by CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 41 of 467 the Screening Committee was made in favour of certain companies which were not having any land with them. It was also submitted that from the evidence led by the prosecution, it has also come on record that the feedback form submitted by various companies were neither considered by the Screening Committee nor by the Ministry of Coal and were not even sent to PMO when the recommendations of Screening Committee were sent for approval from Prime Minister as Minister of Coal. It was thus submitted that in these circumstances it cannot be stated that the land which though was one of the factor towards showing progress made by a company towards establishing the proposed end use project was either taken into consideration or was a factor which induced Screening Committee, Ministry of Coal in making recommendation of allocation of a coal block in favour of M/s VMPL.
42. As regard another important ingredient of the offence of cheating i.e. delivery of property it was submitted that from the evidence led by the prosecution as well as by the accused persons in their defence it has clearly been established that initial offer letter issued in favour of six joint allocatee companies was defective in as much as it considered an enhanced mine capacity of 4 million tonnes of Moira Madhujore coal block instead of actual mining capacity of 2 million tonnes and as a result enhanced amount of bank guarantee was asked for by Ministry of Coal from the joint allocattee companies. It was also submitted that from the evidence led on record it has come on record that area of proposed allocatted coal block overlapped with that of the Aerotropolis Project of Government of CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 42 of 467 West Bengal and the area overlapping was to the tune of 83% of the area of coal block in question. Under the said Aerotropolis project an airport was to be established. It was submitted that from the notings on the files of Ministry of Coal i.e. in file Ex. P-10 (colly) (D-14) it is clear that till the year 2009 the issue of bank guarantee was not resolved and the issue of overlapping of area of impugned coal block with the Aerotropolis Project was also not resolved even till the time coal block in question was deallocated by Ministry of Coal in the year 2014. It was in these circumstances submitted that the issuance of any such offer letter or even any final allocation letter by Ministry of Coal on 06.10.2009 cannot be termed as "property" within the meaning of Section 420 IPC as the very letter so issued was defective and could not have been put to any use. It was submitted that the said defective offer letter or allocation letter was of no value in the hands of allocattee companies. It was also submitted that in fact no wrongful loss could have been caused to any one by not developing any such coal block by joint allocattee companies including M/s VMPL as land falling in the said coal block was acquired for the airport project and no one thus could have mined the said coal block. It was further submitted that wrongful loss was rather caused to M/s VMPL on account of misrepresentation made by officers of West Bengal in Screening Committee as on the date of final meeting of 36th Screening Committee meeting held on 03.07.2008 it was well to the knowledge of officers of Department of Industries that the land falling in Moira Madhujore Coal Block has been identified for the said Aerotropolis project and a joint venture CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 43 of 467 agreement Ex. PW 3/B (colly) in this regard was also entered into by WIMBC which is a part of Department of Industries, Government of West Bengal. Reference in this regard was made to the Deposition of DW 3 Ms. Saswati Poddar. It was thus submitted that even at the time of final Screening Committee meeting held on 03.07.2008 it could have been disclosed by the officers of Government of West Bengal who were present in the Screening Committee as members thereof that the said coal block i.e. Moira Madhujore can no longer be mined as the said land has been identified for the development of an airport.
43. In these circumstances, it was submitted that prosecution has miserably failed to prove the important ingredients of the offence of cheating against the accused persons. Even as regard the offence of criminal conspiracy while referring to the observations of Hon'ble Supreme Court in "State through Superintendent of Police, CBI/SIT Vs. Nalini", 1999 (5) SCC 235, it was submitted that under the garb of the charge of criminal conspiracy i.e. section 120-B IPC any evidence which may be admissible against some of the accused cannot be automatically read against other accused persons unless prosecution shows that the said accused was also knowingly involved with the common object of the said conspiracy and so acted in furtherance of common object of the said criminal conspiracy. Prosecution was also stated to have miserably failed in proving on record that there was any meeting of minds amongst the various accused persons which could lead to hatching of any criminal conspiracy amongst them. The charge of criminal conspiracy was CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 44 of 467 thus also stated to have been not made out against A-2 Vikash Patni and prosecution was thus stated to have miserably failed in proving its case against the accused. A-2 Vikash Patni was thus prayed to be acquitted.
44. Ld. Counsel for A-2 Vikash Patni also placed reliance on the following case law in support of his submissions.
S. Title Citations No. 1 Delhi Development Authority vs Durga Chand AIR 1973 SC 2609 Kaushish 2 Ganesh Prasad Kapoor vs State of U.P. & Ors 1986 CRL.L.J. 1607 3 G.S. Ramasami Iyer vs Emperor MANU/TN.0309/1917 4 Rabindra Kumar Dey vs State of Orissa AIR 1977 SC 170 5 Sharad Biridhichand Sarda vs State of AIR 1984 SC 1622 Maharashtra 6 L.K. Advani vs CBI 1997 CRL.L.J. 2669 7 Prem Kumar Gulati vs State of Haryana 2015 Crl.L.J. 159 8 Raj Kumar Singh @ Raju vs State of Rajasthan 2013 5 SCC 722 9 Ashish Batham vs State of M.P. AIR 2002 SC 3206 10 K.R. Purushothaman vs State of Kerala AIR 2006 SC 35 11 State of Kerala vs P. Sugathan Anr. AIR 2000 SC 3323 12 State of T.N. vs Nalini and Ors AIR 1999 SC 2640 13 M.M.S.T. Chidambaram Chettiar AIR 1938 MAD 129 14 Common Cause, A registered Society vs Union Or AIR 1999 SC 2979 India Ors 15 A.P. Narang vs CBI Crl. Rev. P. No. 397/2010 16 Wolfgang Reim Vs State 2012 (3) JCC 2042 17 Sunil Bharti Mittal vs CBI AIR 2015 SC 923 18 Manohar Lal Sharma v The Principal Secretary& W.P. (Crl.) 120/2012 Ors CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 45 of 467
D (iv) Arguments on behalf of A-3 Anand Mallick.
45. As regard A-3 Anand Mallick, it was submitted by Ld. Counsel Dr. Sushil Kumar Gupta that the only role attributed to accused Anand Mallick by the prosecution is that he acted as an authorized representative on behalf of company i.e. M/s VMPL and the application form as well as the feedback form were submitted under his signatures. In this regard it was submitted that as per the guidelines issued by Ministry of Coal governing allocation of coal blocks it was clearly mandated that the applicant company was to appoint a person authorized to sign on behalf of the applicant company while dealing with any or all matters connected with allocation of coal blocks and that the said documents should be duly signed and stamped by the company secretary of the company. It was submitted that as per the guidelines itself, in the absence of the said documents the application of the company was liable to be summarily rejected as being incomplete. It was submitted that during the course of trial, it has come on record that A-3 Anand Mallick was simply appointed as an authorized signatory on behalf of A-1 VMPL, since he was a resident of Delhi NCR and was thus readily available to deal with all the queries which may be raised by Ministry of Coal. It was thus submitted that accused Anand Mallick simply signed various documents as and when received from the company which was based in Kolkata. In these circumstances, it was submitted that the only issue which remains to be looked into is as to whether the acts of A-3 Anand Mallick were bonafide or not. It was however stated that CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 46 of 467 from the evidence led by the prosecution it can not be concluded that A-3 Anand Mallick was acting with any malafide intention or malice in undertaking any such act.
46. As regard the recovery of copy of cancellation order dated 21.09.2007 of 300 acres of land issued by BIADA with respect to the land earlier allotted to company M/s VMPL it was submitted that during the deposition of DW 2 Inspector M.R. Attrey who was associated with the preliminary enquiry registered by CBI from which the present case was registered as an offshoot it has come on record that during the course of preliminary enquiry A-3 Anand Mallick and A-2 Vikash Patni had joined enquiry on a number of occasions and had also supplied various documents to him. It was submitted that A- 3 Anand Mallick had himself gone to the office of BIADA to collect various documents as and when required by CBI and handed over the same to the CBI during the course of preliminary enquiry. It was also pointed out that admittedly a search operation was carried out by CBI after the registration of a regular case and thus recovery of copy of any such cancellation letter issued by BIADA, which was already supplied to CBI during the course of preliminary inquiry from the car of A-3 Anand Mallick in any search operation simply shows that after supplying all such documents to CBI, copies thereof were kept by A-3 Anand Mallick in his car. It was thus submitted that in these circumstances no adverse inference can be drawn as against A-3 Anand Mallick with respect to recovery of copy of any such cancellation letter issued by BIADA. Reference was also made to Section 79 IPC stating that the actions of accused stands well CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 47 of 467 covered by the provisions of Section 79 IPC as the same were undertaken by him under mistake of facts.
47. While referring to show cause notice issued by MOC as available in D-99 it was submitted that in the reply submitted by A-2 Vikash Patni it was stated on behalf of the company that the cancellation letter was sent by ordinary post. It was thus pointed out that now prosecution has led evidence to show that the letter in question was sent by BIADA by registered post and this fact goes to show that even company was not aware as to by what mode the said letter was sent by BIADA. It was thus submitted that in these circumstances no presumption can be drawn as against A-3 Anand Mallick that he was having any knowledge about cancellation of land when he sent the feedback form and submitted the same to Screening Committee, Ministry of Coal. The prosecution was thus stated to have failed to prove its case against A-3 Anand Mallick and he was thus prayed to be acquitted.
48. It was also submitted by Ld. Counsel Sh. Ratnesh Deo for A-3 Anand Mallick that the role of A-3 Anand Mallick was merely that of a post office and he signed various documents on behalf of M/s VMPL to be submitted to Ministry of Coal only because he was the authorized representative but he neither had any mandate to deal with MOC on any matter nor had any knowledge of the facts to be communicated to MOC. It was however submitted that IO had not carried out any investigation to show that A-3 Anand Mallick was in Kolkata on the day when the application or feedback form were CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 48 of 467 prepared. It was submitted that all such documents used to be received by A-3 Anand Mallick in Delhi from M/s VMPL and he simply used to forward them to MOC after signing them. As regard the factum of attending the MOC meeting at the time of presentation and submission of feedback form it was submitted that A-3 Anand Mallick attended the said meeting only under the belief that in case the authorized representative is not present then the Screening Committee may not even consider the case of VMPL and it was thus submitted that A-3 Anand Mallick except being present in the Screening Committee meeting did not play any other role. It was further submitted that after allocation of land by BIADA there is no evidence to show that A-3 Anand Mallick ever visited BIADA even till the stage of cancellation of allotment of land.
49. Ld. Counsels for A-3 Anand Mallick further placed reliance on the following case law in support of their submissions:
S. Title Citations No. 1 Rajkapoor vs Laxman AIR 1980 SC 605 2 Rakesh Omprakash Mehra & Anr vs Govt. of NCT {197 (2013) DLT 413} of Delhi and Anr. 3 State (Delhi Admn.) vs V.C. Shukla and another AIR 1980 Supreme Court 1382 4 Saju vs State of Kerala 2004 (4) Crimes 247 (SC) 5 Shripad Shivram Kulkarni vs State of Maharashtra AIR 1981 SCC 34 6 State of Orissa vs Bhagaban Barik 1987 STPL 2190 SCa CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 49 of 467 D (v) Arguments on behalf of A-4 H.C. Gupta.
50. It was submitted by Ld. Counsel Sh. Rajat Mathur that prosecution has miserably failed in proving its case against accused A-4 H.C. Gupta either for the charge of criminal conspiracy or for the charge of criminal misconduct. While referring to the note dated 04.11.2006 in D-17 in the file of Ministry of Coal, it was submitted that on account of past experience and expecting that large number of applications will be received it was decided that all such applications be received in Scope Minar, Laxmi Nagar, New Delhi. It was thus submitted that in accordance with the Provisions of Manual of Office Procedure reasons for adopting course different from the given procedure was duly recorded in the noting. It was also submitted that prosecution is primarily trying to impute the charge of conspiracy on A-4 H.C. Gupta on the ground that checking of applications for their eligibility and completeness was deliberately not got conducted despite having knowledge of the same. While referring to the deposition of PW 1 V.S. Rana the then Under Secretary, Ministry of Coal, it was submitted that the said witness is completely unreliable witness as he apparently made material improvements over his statement u/s 161 Cr. PC made before the IO during the course of investigation. It was also submitted that PW 1 V.S. Rana has stated various facts which were contrary to the written record placed and proved on record by the prosecution and thus it was submitted that no oral evidence in contravention of the written record can be held to be admissible. It was also submitted that from the evidence led by the CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 50 of 467 prosecution and especially from the deposition of PW 1 V.S. Rana it has been clearly established that to carry out checking of the applications in accordance with the guidelines issued by Ministry of Coal governing allocation of coal blocks, was the sole duty of CA-1 Section and in case any difficulty was being faced by them in complying with the said guidelines then it was mandatry for them to bring the same to the notice of senior officers by way of written noting in the file. It was submitted that the deposition of PW 1 V.S. Rana that he verbally informed the senior officers in this regard cannot be of any help to the prosecution in proving its case against the accused persons as there are number of notings available in the file where for various small matters notings have been put up by the CA-1 Section and thus there was no reason as to why for such an important deviation from the given guidelines no noting was put up. It was also submitted that from the notings available in D-17 Ex. P-13 (colly) it is clear that when the applications were to be dispatched to various stakeholders then the noting in this regard did not travel beyond the desk of PW 1 V.S. Rana and in these circumstances it cannot be inferred merely on the basis of conjectures and surmises or on the basis of oral deposition of witnesses that the senior officers of Ministry of Coal were having knowledge of even dispatch of applications much less that of applications having been sent without checking them for their completeness and eligibility. It was also submitted that PW 1 V.S. Rana in his cross-examination has admitted that the applications were to be sent to different stakeholders only after they were found to be complete in accordance with the CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 51 of 467 guidelines issued by Ministry of Coal. While also referring to the deposition of DW 7 Prem Raj Kuar beside that of PW 1 V.S. Rana, it was also submitted that CA-1 Section was not required to carry out any technical evaluation of the applications and thus the claim made by PW 1 V.S. Rana that due to lack of technical, legal and financial knowledge they were not in a position to carry out any scrutiny of the applications was clearly wrong.
51. Ld. Defence Counsel in fact while referring to the deposition of DW 1 Inspector Jitender Sharma, who was the investigating officer of another coal block allocation matter i.e. CBI vs Grace Industries Limited and Ors., stated that in the said matter it has clearly come on record that while dealing with the applications received for 34 th Screening Committee meeting the same were checked in Ministry of Coal and even two lists of applications were prepared titled "List of complete applications on first scrutiny" and "List of incomplete applications found on first scrutiny". It was thus submitted that from the deposition of PW 1 V.S. Rana it has come on record that the applications on this occasion i.e. 35 th and 36th Screening Committee were also dealt with by CA-1 Section as per the past practice. It was thus submitted that from the past practice, it is thus clear that the applications were checked on this occasion also.
52. It was also submitted that prosecution has in fact led contradictory evidence even as regard checking of applications in as much as PW 1 V.S. Rana stated that only availability of draft of Rs. 10,000/- towards processing of applications was checked beside CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 52 of 467 giving a cursory glance to the applications. It was however submitted that in the list prepared qua applications received for 34 th Screening Committee meeting names of applicant companies were mentioned in the list of incomplete applications even though the drafts of Rs. 10,000/- were very much available. It was also pointed out that PW 1 V.S. Rana in his deposition stated that no incomplete applications were received in Ministry of Coal.
53. As regard the meeting held on 11.05.2007 in Ministry of Coal, it was submitted that firstly there was no reference of the said meeting in the charges framed against the accused and secondly even from the minutes of the said meeting, if read along with the agenda note as has been placed on record by the accused persons no knowledge of the fact that applications were checked for their eligibility and completeness by the CA-1 Section can be imputed to any senior officer including A-4 H.C. Gupta. It was submitted that mere knowledge even if attributed to the accused persons that the applications have not been checked cannot per se prove meeting of any mind with the other co-accused persons so as to prove existence of any criminal conspiracy, as it was submitted that prior meeting of minds was a condition sine-qua-non for establishing the charge of criminal conspiracy. It was also submitted by Ld. Defence Counsel that the claim of PW 1 V.S. Rana that there was shortage of manpower and on account of which no checking of applications was carried out was also wrong as from the evidence led on record by the prosecution itself it is clear that number of officials from the office of coal controller were available at different point of time to CA-1 CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 53 of 467 Section, MOC to assist with the work relating to applications received by it. It was thus submitted that PW 1 V.S. Rana was now trying to introduce new facts primarily in order to save his own skin as being Under Secretary, CA-1 Section it was his duty to ensure compliance of guidelines issued by Ministry of Coal and in case of any difficulty faced by them to bring it to the notice of senior officers. It was thus submitted that in the aforesaid circumstances there is no reason to doubt the correctness/notings and other documents available in Ministry of Coal files and prosecution cannot be permitted to lead oral evidence contrary to the contents of said documentary evidence. It was submitted that prosecution cannot by way of any such oral deposition made by way of improvement and in contradiction to the written record impute any knowledge to the accused persons so as to bring home the charge of criminal conspiracy. It was also submitted that during the course of investigation of various coal block allocation matters only it has come to the knowledge of accused persons that no checking of applications for their eligibility or completeness was carried out in Ministry of Coal by CA-1 Section.
54. While referring to the observations of Hon'ble Surpeme Court in the case V.C. Shukla Vs. State, Delhi Administration (1980) 2 SCC 665, Ld. Counsel Sh. Rajat Mathur submitted that mere act of recommendation cannot amount to an act of criminal conspiracy. It was also submitted that from the deposition of PW 1 V.S. Rana it has come on record that though application of M/s VMPL was sent to State of Bihar but notice of Screening Committee meeting was not sent inadvertently and this fact came to the notice of Ministry of Coal CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 54 of 467 officers only during the course of investigation of the present case. While referring to the deposition of PW 12 N.R. Dash it was submitted that Ministry of Steel had in fact considered the existence as well as proposed end use projects of the company both at West Bengal and Bihar and even this fact was brought to the notice of Ministry of Coal officers by Ministry of Steel only. It was also pointed out from the deposition of PW 1 V.S. Rana that in the initial letter of offer, the allocation of end use plant at West Bengal was inadvertently mentioned but in the subsequent letter of allocation finally issued, the allocation of coal block for end use projects both at Bihar and West Bengal was mentioned. In the light of aforesaid circumstances, it was submitted that on account of aforesaid inadvertent mistake on the part of officers of Ministry of Coal, it cannot be concluded that there was any act of criminal conspiracy committed by them or that there was any meeting of minds between them and the private parties. It was also submitted that even the prosecution has failed to prove the complete chain of circumstances, which may go on to establish the charge of criminal conspiracy against accused H.C. Gupta.
55. It was also submitted that in the absence of any note of dissent having been expressed by any of the members of the Screening Committee much less that by representative of Government of West Bengal, it is to be presumed that they all had agreed to the decision taken in the Screening Committee and the same was taken after due deliberation and discussion and with the consent of all. It was in this light reference was also made to the deposition of DW 6 Shiv Raj Singh. Reference was also made to the CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 55 of 467 deposition of PW 12 N.R. Dash that in the meeting members were free to express their views. Ld. Counsel further submitted that in the minutes of the meeting discussion qua major discrepancies/objections were to be recorded and not the entire discussion. It was also submitted that after signing of recommendation sheets the members cannot have submitted any dissent note. In fact it was also pointed out that Government of West Bengal did not submit any dissent note even after the meeting was over and this again shows that they were in complete agreement with the decision taken in the Screening Committee. It was also pointed out that both PW 12 N.R. Dash and Sh. U.P. Singh Joint Secretary (Steel) had briefed Sh. R.S. Pandey and who thereafter participated in the meeting held at PMO qua which PW 10 Ms. Vini Mahajan has deposed to.
56. While referring to the deposition of PW 18 Sabya Sachi Sen, it was also submitted by Ld. Counsel that State Government was well within its powers to change its earlier recommendation. It was also submitted that PW 18 Sabya Sachi Sen has deposed that Sh. Bhaskar Kulbey who represented Government of West Bengal in the Screening Committee used to brief him about the proceedings of the meeting. It was also submitted that in the Screening Committee meeting only those States were invited where the coal blocks to be allotted are situated and not the states where the proposed end use projects were to be established.
57. As regard the working of 36th Screening Committee meeting, CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 56 of 467 it was further submitted by Ld. Counsel Sh. Rajat Mathur for A-4 H.C. Gupta that prosecution has failed to establish that A-4 H.C. Gupta being Chairman, Screening Committee had any overriding powers over other members of the Screening Committee or that the said members were subordinate to the Chairman. It was also submitted that the signing of recommendation sheets by various members of the Screening Committee who were representing various State Governments or Administrative Ministries clearly signifies not only their presence during the meeting but their agreement with the final decision also. Moreover, the members of Screening Committee who were concerned with the matter of M/s VMPL such as officers of Ministry of Steel or that of State Government of West Bengal can not now claim that they were not in agreement with the decision taken in the meeting as the stage of giving any dissent was at the time of signing recommendation sheets only. It was submitted that Screening Committee members can not now turn around and state that they were not in agreement with the decision of the Screening Committee especially when they failed to give any dissent note or contrary view either during the meeting or at the time of signing of the recommendation sheets. It was also submitted that from the evidence led on record by the prosecution as well as from that of DW-6 Shivraj Singh and DW-5 Bhaskar Khulbe it is clear that there was no restriction on the members to express their views during the course of meeting and all members were free to express their views. As regard the recommendation from State of Bihar, it was submitted that the IO deliberately withheld the necessary records from this Court even CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 57 of 467 though Government of Bihar had duly recommended the case of M/s VMPL for the integrated steel plant as stands reflected from the document D-30. It was further pointed out that admittedly DW-5 Bhaskar Khulbe who was representing Government of West Bengal both in 35th and 36th Screening Committee had given a dissenting note in 35th Screening Committee but as he did not give any such dissenting note in 36th Screening Committee so it has to be presumed that there was no dissent on his part qua the said decision and the decision of Screening Committee was thus a unanimous one.
58. The prosecution was thus stated to have miserably failed in proving its case qua any of the charges framed against the accused.
Accused H.C. Gupta was thus prayed to be acquitted.
59. Ld. Counsel for A-4 H.C. Gupta further placed reliance on the following case law in support of his submissions:
S. Title Citations No. 1 Chandrakant Jha vs. State (Govt. of NCT Crl. A. No.656/13 of Delhi) Dated 27.01.2016 2 Runu Ghosh vs. CBI 2011 SCC ONLINE DEL 5501 3 S.P. Bhatnagar & Ors. v. State of (1979) 1 SCC 535 Maharashtra 4 V.C. Shukla v. State, Delhi Administration (1980) 2 SCC 665 5 Kehar Singh vs. State of NCT 1988 (3) SCC 6 6 State v. Nalini (1999) 5 SCC 253 7 Arun Kumar Aggarwal v. Union of India (2014) 2 SCC 609 8 Yogesh vs. State of Maharashta 2008 (10) SCC 394 9 State of Madhya Pradesh v. Sheetla Sahai (2009) 8 SCC 619 10 P.K. Narayan v. State of Kerala (1995) 1 SCC 142 CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 58 of 467 11 Saju v. State of Kerala (2001) 1 SCC 378 12 Esher Singh v. State of A.P. (2004) 11 SCC 585 13 Ramachandran v. State of Kerala (2009) Cri LJ 168 14 Common Cause vs. Union of India (1999) 6 SCC 667 15 Nathiya vs. State 2016 (10) SCC 298 16 Subramanian Swamy v. A. Raja (2012) 9 SCC 257 17 TSR Subramanian & Ors. v. Union of India (2013) 15 SCC 732 & Ors. 18 State of Kerala v. (2000) 8 SCC 203 P. Sugathan 19 State (NCT of Delhi) v. Navjot Sandhu (2005) 11 SCC 600 20 Rajeev Kumar Goyal & Ors. v. State (2014) SCC Online Del. through CBI 4036 21 Sunil Kumar Sambhudayal Gupta v. State (2010) 13 SCC 657 of Maharashtra 22 Brij Lal & Ors. v. State of U.P. MANU/UP/0746/1988 23 Takhaji Hiraji v. Thakore Kubersing (2001) 6 SCC 145 Chamansing & Ors. 24 Harbeer Singh v. Sheeshpal (2016) 16 SCC 418 25 Ashok Vishnu Davare v. State of (2004) 9 SCC 431 Maharashtra 26 Baldev Singh v. State of Punjab (2014) 12 SCC 473 27 Commissioner of Police, Bombay vs. AIR 1952 SC 16 Gordhandas Bhanji 28 Mohinder Singh Gill vs. The Chief Election AIR 1978 SC 851 Commissioner, New Delhi & Ors. 29 Jugraj Singh & Anr. Vs. Jaswant Singh & (1970) 2 SCC 386 Ors. 30 Tawrku vs. Surti AIR 1997 HP 76 31 Kartar Singh vs. DDA & Anr. AIR 2000 Del 184 32 Govindaraju vs State (2012) 4 SCC 722 33 National Institute of Mental Health and 1992 Supp (2) SCC 481 Neuro Sciences vs. Dr. K. Kalyana Raman & Ors. 34 Dalpat Abasaheb Solunke & Ors. vs. Dr. (1990) 1 SCC 305 B.S.Mahajan & Ors. CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 59 of 467 35 C. Chenga Reddy & Ors vs. State of A.P (1996) 10 SCC 193 36 R. Sai Bharathi vs. J. Jayalalitha & Ors (2004) 2 SCC 9 37 Paramjit Singh vs. IOCL & Ors. W.P (C) No. 823/12, decided on 31.07.2017 38 Harchand Singh & Anr. vs. State of (1974) 3 SCC 397 Haryana 39 Krishan Bharti Co-operative Ltd. vs. UOI & W.P (C) No.4033/2007 Anr. 40 Grasim Industries Ltd. and Anr. v. Agarwal (2010) 1 SCC 83 Steel 41 Municipal Corp.,Greater Bombay v. P.S. AIR 1978 SC 1380 Malvenkar 42 Jose Mathew & Ors. vs._James Avirah & MANU/KE/0112/2016 Ors. 43 Saunders v. Anglia Building Society 1970(3) All ER 961) 44 Ravi Yashwant Bhior v. District Collector, AIR 2012 SC 1339 Raigad 45 Shreekantiah Ramayya Munipalli vs. State (1955) 1 SCR 1177: AIR of Bombay 1955 SC 287 46 Hori Ram Case (1939) 1 FCR159 47 Prof. N.K.Ganguly vs. CBI (2016) 2 SCC 143 48 Sanjay vs. State of Maharashtra Crl. Application (APL) No.716/16 decided on 10.04.2017 49 Matajog Dobey vs. H. C. Bhari 1955 (2) SCR 925 50 Amrik Singh vs. State of Pepsu (1955) 1 SCR 1302 51 Pawan @ Diggi Vs State Delhi High Court (DB) in Crl. Appeal No: 1297/2010 on 24.01.2014 52 Dinesh Kumar @ Kalu & Ors Vs State 2014 (145) DRJ 465 (DB) Govt. of NCT of Delhi
D (vi) Arguments on behalf of A-5 K.S. Kropha and A-6 K.C. Samria.
60. It was submitted by Ld. Counsel Sh. Rahul Tyagi for A-5 K.S.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 60 of 467 Kropha and A-6 K.C. Samria that the charges as have been framed against, the two accused persons pre-supposes certain facts in as much as that A-5 K.S. Kropha and A-6 K.C. Samria were responsible for ensuring checking of the applications received in MOC. It was submitted that from the charge of criminal conspiracy as has been framed against the accused, it is evident that certain illegal acts or acts of omission and commission have been attributed to A-5 K.S. Kropha and A-6 K.C. Samria. It was however submitted that prosecution has miserably failed to lead any evidence to show as to what such illegal acts were or what such acts of omission and commission were. It was also submitted that prosecution was duty bound to point out that any such acts alleged to have been committed by A-5 K.S. Kropha or by A-6 K.C. Samria were in violation of any provision of law. It was also submitted that in order to appreciate the role played by the public servants who were officers of MOC facing trial in the present case, it is imperative that the circumstances in which Government of India adopted the policy of allocating the coal blocks for captive use to private parties engaged in certain specific end uses be taken into consideration. In order to understand the arduous job assigned to MOC in the allocation of coal blocks reference was made to the legislative policy adopted by Government of India in early 90s. Reference was also made to Allocation of Business Rules, 1961 beside Transaction of Business Rules, 1961 notified by Government of India to show that though the job of allocation and exploration of coal blocks was assigned to MOC but the said working was closely interconnected with the working of CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 61 of 467 Ministry of Power, Ministry of Steel or DIPP as they were respectively responsible for increasing generation of power, increased production of iron and steel in the country or for increased production of cement. While referring to the provisions of Manual of Office Procedure, it was pointed out that the work relating to allocation of captive coal blocks was interdependent with other Ministries/departments of Government of India so it was in these circumstances to have an expedite decision for allocation of coal blocks that an inter-departmental body i.e. a Screening Committee was constituted. It was also submitted that as the various State Governments where different coal blocks were situated were having control over the said coal blocks under MMDR Act, 1957 so in order to protect their interest they were also roped in as members of the Screening Committee. It was thus submitted that keeping in view the said broad based inter-departmental job assigned to Screening Committee, its working needs to be understood and appreciated. It was also submitted that the working of executive wing of the Government also needs to be understood as different from the working of Courts of Law or the requirements which are looked for by Courts of Law while undertaking judicial review of an action undertaken by the executive wing. It was also submitted that while judicial review of an executive wing can be undertaken but it is only the process which can be reviewed and not the end result thereof. It was submitted that by way of judicial review the Court can not substitute its own decision in place of the decision arrived at by the executive.
61. While referring to Transaction of Allocation Rules, 1961 it was CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 62 of 467 submitted that as per para 4, if the decision of the Screening Committee was not unanimous then it was incumbent upon various other departments which were members of the said Screening Committee to refer the matter to Cabinet as in case of difference of opinion the Cabinet has been empowered to take a final decision and no decision can be taken by interdepartmental Committee. It was also submitted that from the Transaction of Allocation Rules and Transaction of Business Rules, it was clear that if the job of checking of applications was to be undertaken by CA Section and the present accused persons have been arrayed to face the present prosecution on the ground of lapses on their part in not properly supervising the functioning of said CA Section then there is no logic as to why only some of the supervisory officers have been roped in to face trial while leaving others such as Under Secretary, Section Officer and other officers of concerned CA Section. It was thus submitted that if at all the present accused persons are to be held criminally liable for any act of supervisory lapses on their part then it needs to be spelled out as to on what criteria only these officers have been singled out while leaving other officers such as Section Officer and Under Secretary of the Ministry who admittedly were the Incharge of the concerned section. Reference was also made to report of CAG on the coal block allocation matters stating that the same is instructive for understanding the finer nuances of the present matter. As regard the functioning of MOC officers, it was also submitted that from the files of MOC itself it is evident that A-5 K.S. Kropha was a part of team of officers who had proposed that instead of adopting the Screening CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 63 of 467 Committee route the competitive bidding route be adopted but the said proposal put-forth by them was rejected not only by the State Governments but even at the level of Ministry, Parliamentarians, other politicians and other Ministries.
62. It was submitted by Ld. Counsel Sh. Rahul Tyagi that the guidelines issued by MOC were only in the nature of opinion to be followed by the Screening Committee in arriving at its decision since they were not having any statutory force. Distinction was sought to be made between guidelines having statutory force and guidelines which are in the nature of departmental instructions which are only for the guidance of the officers, but have no binding force. Ld. Counsel submitted that he is taking alternative argument in the present case that though guidelines were indeed followed in their letter and spirit but in case it is found that they were not followed then his argument is that they were not compulsorily followed as they were not having any statutory force since they were not issued under Article 77 of Constitution of India i.e. in the name of President of India.
63. Ld. Counsel Sh. Rahul Tyagi while referring to a book titled "Shackleton on the law and practice of meetings" tried to differentiate between the meaning of "Committee" and "Meeting" and also highlighted various aspects as to how the proceedings of a meeting are to be conducted right from the stage of convening the meeting. Ld. Counsel also highlighted as to what all requirements are to be complied with while convening a meeting. Ld. Counsel further highlighted the difference between Member Convener and Member of CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 64 of 467 the Screening Committee and as to how minutes of a meeting are to be recorded. Ld. Counsel while referring to various minutes available in the records of the present case itself pointed out as to how minutes of various meetings held in PMO were recorded and the meeting took place. As regard allocation of Moira Madhujore coal block to M/s VMPL, Ld. Counsel referred to the recommendation made by Administrative Ministry i.e. Ministry of Steel and that by State Government of West Bengal and submitted that on account of lack of industrial development in the Country and shortage of power and there being conflicting/different views of Members of various stakeholders in the Screening Committee some consensus was sought to be arrived at by the Committee and in that process only M/s VMPL came to be accommodated for Moira Madhujore coal block. It was also submitted that the decisions of the Screening Committee were taken by a majority view and that the Chairman had no overriding power over the decision of the majority. It was also submitted that by putting their signatures on the recommendation sheets, the various members of the Screening Committee agreed to the decision so taken in the Committee. It was also submitted that the said decision after it was accepted by the Members by signing on the recommendation sheets has to be treated in law as decision of the Screening Committee and cannot be said that the final decision was taken by the Chairman. It was submitted that Chairman merely summed up the decision and did not take any independent decision.
64. It was also submitted by Ld. Defence Counsel while referring to the file of Department of Industries, Government of Bihar i.e. Ex.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 65 of 467 PW P-26 (colly) (D-30) that from the documents available in the said file, it is clear that Government of Bihar had indeed made recommendation in favour of VMPL for allocation of a coal block. It was further submitted that being an old matter a number of documents are now found to be missing from the files of different Government Departments including that of Ministry of Coal. It was thus submitted that while appreciating the role played by the accused persons vis a vis the evidence of various prosecution witnesses so examined or the witnesses examined on behalf of the defence, the Court has to keep in mind the nature of executive functioning beside the fact that number of documents are still not traceable. It was also pointed out that from the deposition of PW-12 N.R. Dash and that of PW-1 V.S. Rana it is clear that TEFR report filed by M/s VMPL was indeed available but now the same is found missing from the files of Ministry of Coal. It was also submitted by Ld. Counsel that accused is only required to show by way of preponderance of probabilities that the case put forth by prosecution is not true or correct or is not believable and thus benefit in this regard be extended to the accused. It was also submitted that the investigation carried out in this case is also not fair in as much as no investigation was at all carried out as to the fate of application of M/s VMPL which was sent to Government of Bihar by Ministry of Coal vide letter of PW-1 V.S. Rana. It was also pointed out that from the file Ex. P-26 (colly) (D-30) it is clear that the said applications were being dealt with by department of mines in Government of Bihar and not by department of Industries.
65. It was also submitted by Ld. Counsel Sh. Rahul Tyagi that CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 66 of 467 while appreciating the evidence led by the prosecution in the present case the Court must take judicial notice of the natural conduct of human beings. It was submitted that the intention of the officers dealing with coal block allocation matters at the relevant time needs to be seen and not what is now being interpreted of the said actions. It was also submitted that there may be certain errors or acts of negligence on the part of officers dealing with the impugned matters at the relevant time but by no stretch of imagination the same can be termed as culpable in nature.
66. While referring to the provisions of Manual of Office Procedure vis-a-vis evidence led by the prosecution, it was submitted that the primary job of checking of applications for their eligibility and completeness was that of CA-I Section officials and if the said action was not undertaken in MOC and the present accused persons are being tried on account of no such action having been undertaken in MOC then the officials of CA-I Section are also clearly accomplice in the said act and their deposition thus needs to be seen and appreciated keeping in view the well settled principles which governs the rules of appreciation of deposition of an accomplice. It was also submitted that prosecution has deliberately chosen to withheld the best evidence from this Court and have rather led selective evidence in various coal block matters pending trial before this Court and have also chosen to place only selective documents on record.
67. While referring to the record notes of 7 th Energy Coordination Committee, it was submitted that pursuant to the directions of PMO, CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 67 of 467 the officers of MOC including the present accused persons had undertaken the entire exercise of allocation of coal blocks and it was submitted that every minute details could not have been looked into by the senior officers of MOC who are now facing trial and it was on account of necessity and urgency of the matter that the entire exercise was undertaken with a belief that CA-I, Section will duly play their role in the process. While referring to various notings recorded by the officials of CA-I Section and other senior officers of MOC, it was submitted that the entire exercise was undertaken as per the past practice being followed and it was in case of any deviation from the well settled past practice that the matter used to be put up before senior officers for their directions and approval. It was also submitted that from the deposition of PW-1 V.S. Rana and DW-7 P.K. Kuar, it was clear that in order to save their own skin they were blatantly telling lie and their deposition does not inspire confidence at all. While referring to the charges framed against the accused persons, it was submitted that the accused persons are required to meet the case of prosecution only to the extent as has been mentioned in the charges framed against them. It was also submitted that prosecution has failed to explain as to whose duty was it, at least from amongst the present officers of MOC facing trial to ensure checking/scrutiny of applications for the purposes of their eligibility and completeness. It was further submitted that it was the duty of PW-1 V.S. Rana, Under Secretary, MOC to ensure checking of applications with the help of CA-I Section officials.
68. It was submitted by Ld. Counsel Sh. Rahul Tyagi that from a CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 68 of 467 bare perusal of the deposition of PW-1 V.S. Rana it is clear that whatever facts have been stated by him are as per the records available and not as per his memory. While pointing out various facts deposed to by PW-1 V.S. Rana it was submitted that despite certain facts having been stated by him contrary to the case of prosecution still no request was made by prosecution to challenge or to re- examine the witness and in these circumstances the said facts stands duly established. It was also submitted that PW 1 V.S. Rana who is the star witness of prosecution in almost all cases where the present accused persons are facing trial in one or the other coal block allocation matters has taken different stands in various cases qua same issues and on account of the said changing stand, it is clear that his deposition cannot be relied upon at all. It was also submitted that in the present matter PW 1 V.S. Rana never stated that he informed any of the senior officers of MOC that scrutiny/checking of applications for their eligibility and completeness has not been carried out. As regard the repeated stand taken by PW 1 V.S. Rana that various actions were undertaken by them under the guidance of senior officers it was submitted that in view of Section 68 of Evidence Act the same is clearly hearsay as prosecution has not tried to bring on record any evidence which could show that whatever was being deposed to by PW 1 V.S. Rana was direct evidence having been observed by him by one of his cognative faculties. It was also submitted that from the records of prosecution case itself it is clear that the project report though titled "TEFR" was very much available. It was pointed out that the said report was very much available with CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 69 of 467 Ministry of Steel as well as Government of Bihar and the fact that it was not available in Ministry of Coal is clearly on account of the fact that certain documents have gone missing from the files of MOC. It was also pointed out that at the time of receipt of applications acknowledgment thereof was duly given by MOC officers on a covering letters wherein details of the documents enclosed with the applications were mentioned. Copy of the said covering letter was stated to have been recovered during the course of search operation carried out at the house of co-accused Anand Mallick.
69. It was further submitted by Ld. Counsel Sh. Rahul Tyagi on behalf of A-5 K.S. Kropha and A-6 K.C. Samria that from the deposition of various prosecution witnesses and defence witnesses, it is clear that wherever certain facts have been stated by the witnesses against the case of prosecution then the said witnesses have not been confronted by the prosecution either by re-examining or by putting any suggestion. It was however submitted that on the other hand whenever such a situation has arisen qua the accused persons be it during the cross-examination of prosecution witnesses or defence witnesses then a request has always been made on behalf of accused persons to grant an opportunity to re-examine the witnesses. It was further submitted that such a request was however turned down by this Court and thus since accused has not been given a chance to confront the said witness(es) or to examine the witness(es) on the said issue so the said part of evidence of the witnesses can not be now taken into consideration. It was also submitted that even after examination of defence witnesses this Court CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 70 of 467 has chosen not to put all such adverse evidence which has come on record against the accused persons to them u/s 313 Cr.PC giving them an opportunity to explain the same and thus the said part of evidence also can not be read against the accused persons. It was also submitted that admittedly the minutes of 36 th Screening Committee were duly circulated to all the members of Screening Committee and since no objection was raised by the members of Screening Committee at that point of time so now after a lapse of 9 years they can not come around and say that the said recommendations of Screening Committee were not arrived at with their agreement or consent. Reference in this regard was also made to the factum of signing of recommendation sheets by the said members at the time of Screening Committee meeting itself and thereby signifying their acceptance/consent to the decision so taken by the Screening Committee. It was also submitted that on account of earlier experience faced by MOC officers qua the proceedings conducted with respect to 30-34 th Screening Committee it was consciously decided by MOC officers that members may be asked to sign the recommendation sheets containing the final decision of the Screening Committee meeting, in the meeting itself so that later on members may not turn around and disown the decision of the Screening Committee. It was also submitted that strangely enough the prosecution witnesses in this case have chosen to not support or reiterate the version or factum stated by them to CBI and prosecution has also not chosen to confront the said witnesses with their said statements u/s 161 Cr.PC. It was thus submitted that from the said CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 71 of 467 course of examination it is clear that prosecution was itself disbelieving the investigating agency or the investigating officer. While referring to the communications made by Ministry of Steel to MOC, it was submitted that at no point of time MOS ever conveyed to MOC that the physical verification of the applications so received by them will not be carried out by them and thus there was no reason for MOC officers to presume or assume that no such physical verification of the applications is being carried out by them. It was also submitted that from the records brought on record by way of prosecution evidence, it was clear that scrutiny of the applications qua their completeness and eligibility was indeed carried out in MOC. It was submitted that in the present matter there was no incomplete applications received by MOC and for this reason only MOS had communicated to MOC about 695 applications having been received by them and the same being complete.
70. As regard the issue of post recommendation verification to be carried out by MOC of the successful allocatee companies, it was submitted that there was no reason for MOC officers to even assume even for the sake of arguments that no such verification has earlier been carried out either by the Administrative Ministry or by the State Government as per the past practice being followed in MOC.
71. It was also submitted that A-6 K.C. Samria was not even posted in CA-I Section when the applications in question were either received in MOC or were processed or copies thereof were dispatched to various stakeholders. It was thus stated that A-6 K.C.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 72 of 467 Samria can not be held liable for any such acts of omission, if committed by CA-I Section officials.
72. It was also submitted that prosecution has clearly failed in proving that A-5 K.S. Kropha or A-6 K.C. Samria were in any manner responsible for the checking of applications for their completeness and eligibility. It was also submitted that prosecution has also failed to bring any evidence on record which could show that either A-5 K.S. Kropha or A-6 K.C. Samria were in any manner involved in any criminal conspiracy, if at all hatched by other accused persons. No evidence was at all stated to have been led which could show that there was any meeting of mind amongst the accused persons.
73. The prosecution was thus stated to have miserably failed in proving its case against A-5 K.S. Kropha and A-6 K.C. Samria. They were thus prayed to be acquitted.
74. Ld. Counsel for A-5 K.S. Kropha and A-6 K.C. Samria further placed reliance on the following case law in support of his submissions:
S. Title Citations No. 1 State of U.P. & Ors vs Johri Mal Manu/SC/0396/2004 2 State of U.P. & Ors vs Maharaja Manu/SC/0563/1989 Dharmander Prasad Singh & Ors 3 Main Pal vs State of Haryana Manu/SC/0676/2010 4 Bhagirath vs State of Madhya Pradesh Manu/SC/0091/1975 5 P.B. Desai vs State of Maharashtra & Ors Manu/SC/0937/2013 6 G.J. Fernandez vs State of Mysore & Ors Manu/SC/0050/1967 7 Chief Commercial Manager, South Central Manu/SC/7843/2007 CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 73 of 467 Railway, Secundrabad vs G.Ratnam & Ors 8 R. Sai Bharathi vs J. Jayalalitha & Ors Manu/SC/0956/2003 9 Gulf Goans Hotel Company Ltd vs Union of Manu/SC/0848/2014 India & Ors 10 Ram Singh vs Sonia & Ors Manu/SC/7109/2007 11 Harendra Narian Singh & Ors vs State of Manu/SC/0416/1991 Bihar 12 Mukhtiar Ahmed Ansari vs State (N.C.T. of Manu/SC/0309/2005 Delhi) 13 Rammi & Ors vs State of Madhya Pradesh Manu/SC/0596/1999 14 Dahyabhai Chhaganbhai Thakker vs State Manu/SC/0068/1964 of Gujrat 15 C.T. Muniappan vs The State of Madras Manu/SC/0346/1960 16 C.B.I. Hyderabad vs K. Narayana Rao Manu/SC/0774/2012 17 State of Kerala vs P. Sugathan & Ors Manu/SC/0601/2000 18 Brij Lal & Ors vs State of U.P. Manu/UP/0746/1988 19 Thulia Kali vs The State of Tamilnadu Manu/SC/0276/1972 20 Askar S/o Abdul Karim vs State of Kerala Crl.A. No. 992/2006 21 S.K. Alagh vs State of U.P. & Ors Manu/SC/7162/2008 22 Maksud Saiyed vs Stte of Gujreat & Ors Manu/SC/7923/2007 23 Laxmipat Choraria & Ors vs State of Manu/SC/0062/1967 Maharashtra 24 Mohd. Husain Umar Kochra & Ors vs K.S. Manu/SC/0123/1969 Dalipsinghji & Ors 25 Grasim Industries & Ors vs Agarwal Steel Manu/SC/1763/2009 26 The Municipal Corporation of Greater 1978 (5) TMI 125 - Bombay vs P.s. Malvenkar & Ors SUPREME COURT OF INDIA - 1978 AIR 1380 27 Jose Mathew & Ors vs James Avirah & Ors Manu/KE/0112/2016 28 Mathu vs Cherchi Manu/KE/0515/1989 29 Ravi Yashwant Bhoir vs District Collector Manu/SC/0186/2012 Raigad and Ors 30 Jayendra Saraswathi Swamigal vs State of Manu/SC/0017/2005 Tamilnadu 31 Samunder Singh & Ors vs State Manu/WB/0117/1965 CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 74 of 467 32 State through Superintendent of Police, Manu/SC/0945/1999 CBI/SIT vs Nalini & Ors 33 Major S.K. Kale vs State of Maharashtra Manu/SC/0139/1976 34 N. Narayanan Nambiar vs State of Kerala Manu/SC/0164/1962 35 R. Balakrishnan Pillai vs State of Kerala Manu/SC/0237/1996 36 CBI vs Ashok Kumar Aggarwal Manu/SC/1220/2013
(E) PRELUDE TO MY DISCUSSION OF THE PROSECUTION CASE.
75. I have carefully perused the record.
76. Before I advert on to discuss the case of prosecution in the light of evidence led on record vis-a-vis the submissions of Ld. Counsels for the accused persons, it will be worthwhile to mention that the present case like other coal block allocation matters is also primarily based on circumstantial evidence. However, the said circumstances are sought to be proved by prosecution mainly from the documents be that of MOC, Screening Committee, Ministry of Steel, State Government of Bihar, State Government of West Bengal or that of company M/s VMPL itself. Thus in order to appreciate the conduct of accused public servants or that of the private parties who have been now arrayed as accused, various notings as have been recorded in the files of Government of Bihar, Government of West Bengal, files of Ministry of Steel or that of MOC beside the proceedings of the Screening Committee needs to be referred to in extensio. Thereafter only can it be examined and appreciated as to whether various incriminating circumstances stands conclusively proved against the accused persons or not. It will be also required to CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 75 of 467 be seen as to whether the said incriminating circumstances so proved form such a complete chain of evidence which is consistent only with the hypothesis of guilt of the accused persons or not. In other words whether the said incriminating circumstances are explainable on any other hypothesis consistent with the innocence of accused persons or not.
77. In this regard, it will be thus appropriate to refer to the often repeated observations of Hon'ble Supreme Court regarding cases based on circumstantial evidence. Hon'ble Supreme Court in the case Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622 in para 152, 153 and 154 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 Pradesh [1952] SCR 1091. 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 Pradesh [1969] 3, SCC 198 and Ramgopal v. State of Maharashtra AIR, 1972 SC 656. 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 CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 76 of 467 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 Maharashtra [1973] 2 SCC 793, 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 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."
78. 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 CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 77 of 467 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 point 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.
79. At this stage, I may also put a mark of caution that during the course of entire trial including at the time of addressing final arguments it has been repeatedly stated by Ld. Counsels for the accused public servants that to frame a given policy is the sole discretion of the Government of the day and the Court cannot substitute its decision/discretion over the decision/discretion exercised either by the officers of state Government of Bihar or that of Government of West Bengal or of MOC or even that of Screening Committee. Judicial review of the said decisions was thus stated to be beyond the purview of the present proceedings.
80. In this regard I may state that Ld. Counsels for the accused persons are certainly right in stating that in the present proceedings this Court can not substitute its decision/ discretion over that of officers of Government of Bihar or that of Government of West Bengal or of MOC or even that of Screening Committee, who were vested with such discretion and power to take a decision by law and also by virtue of their position. However, it will be worthwhile to mention that in the present proceedings this Court at no point of time is attempting to substitute the decision taken by any of the aforesaid authorities CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 78 of 467 and what is being examined is whether the decision taken or discretion which stood vested in the aforesaid authorities was exercised for any extraneous consideration or whether in exercise of the power so vested in them they abused their position as a public servant. Thus in the present proceedings this Court is simply examining as to whether there was any malice or malafide intention in the exercise of discretion which stood vested in these authorities or in other words whether the decision to recommend M/s VMPL for allocation of Moira Madhujore coal block by the Screening Committee and consequently the allotment of the same in favour of the company by MOC was actuated for some extraneous consideration or was taken on certain considerations which were not permissible under law. The sum and substance of the aforesaid exercise being undertaken in the present proceedings is to examine whether there exists any culpability in the exercise of discretion by the accused public servants or the decision so taken by them in favour of M/s VMPL amounts to commission of any offence for which charges have been framed against the accused public servants or not. Thus in these circumstances it can not be argued that this Court in the present proceedings can not examine the process as well as the procedure undertaken by the accused public servants which finally led to allocation of Moira-Madhujore coal block in favour of M/s VMPL. It is only after such an examination that it can be ascertained and concluded as to whether the said decision in favour of M/s VMPL or exercise of discretion by the concerned authorities was actuated by any malice or malafides or that their actions were bridled with CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 79 of 467 criminality or not. Thus at the cost of repetition it is stated that while undertaking the aforesaid exercise the question of substituting the decision taken by any of the authorities involved in any manner whatsoever does not arise.
81. In this regard, it would be also 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 ."
82. In fact the judicial review of the actions of officers of MOC or that of Screening Committee so constituted to make recommendations for allocation of various captive coal blocks in favour of different applicant companies was undertaken by Hon'ble Supreme Court in the case Manohar Lal Sharma V. Union of India, (2014) 9 SCC 516. The said exercise of judicial review undertaken by Hon'ble Supreme Court resulted in cancellation of allocation of all coal blocks as were allotted pursuant to the recommendations of all the 36 Screening Committees of MOC in favour of different applicant companies. The work of all the 36 Screening Committees were closely scrutinized by Hon'ble Supreme Court and detailed observations were made as regard their functioning. Accordingly observations made by Hon'ble Supreme Court qua 36 th Screening Committee were as under:
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 80 of 467 "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 36 th 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 36th 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 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 CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 81 of 467 from the 1st 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 32 nd 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 35th 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. . . . . .
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3. . . . . .
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4. . . . . .
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5. . . . . .
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6. . . . . .
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7. . . . . .
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8. . . . . .
. . . . .
9. . . . . .
. . . . .
22nd Meeting to 30th Meeting CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 82 of 467
10. . . . . .
. . . . .
11. . . . . .
. . . . .
12. . . . . .
. . . . .
13. . . . . .
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14. . . . . .
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15. . . . . .
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16. . . . . .
. . . . .
17. . . . . .
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18. . . . . .
. . . . .
32 Meeting to 36th Meeting nd
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 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 CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 83 of 467 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)
83. It was however 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 provisions of MMDR Act, 1957 and CMN Act, 1973.
In this regard I may clarify at the threshold itself that no conclusion as regard the criminality in the acts of persons involved in the present case is intended to be drawn on the basis of the aforesaid observations of Hon'ble Supreme Court. However, it can not be stated that the aforesaid observations of Hon'ble Supreme Court are not relevant to the facts in issue. Moreover the aforesaid observations show that the actions of officers of Government of Bihar, Government of West Bengal, Ministry of Steel, MOC or even that of Screening Committee can be subjected to judicial scrutiny. At the cost of repetition, I may however reiterate that in the present proceedings this Court shall be examining only as to whether the acts of all CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 84 of 467 persons arrayed as accused in the present case were actuated with any malice or malafides or not and thereby showing criminality in their actions or not.
84. Moreover, during the course of trial when officers of Ministry of Steel were examined by the prosecution then in their cross- examination it was even suggested to them by Ld. Counsels for the accused persons only that company M/s VMPL as was mentioned in their recommendations sent to MOC, ought to have been placed under different category from the one in which it placed by them. Thus Ld. Counsels for the accused persons themselves called upon this Court to appreciate the actions taken by the accused persons in the light of the fact that the company in question ought to have been placed in different category from the one in which it was placed by Ministry of Steel officers. Thus Ld. Counsels for the accused persons themselves called upon this Court to substitute the said decision of officers of Ministry of Steel with their own assessment of the status of companies.
Be that as it may, I shall be however dealing with the said issue in detail at a later stage of my present judgment and I intend to begin first with the role played by the private parties involved in the matter which finally led to allocation of Moira-Madhujore coal block in favour of M/s VMPL.
85. I may also mention that in accordance with the well-settled principles of criminal law various circumstances in the present case CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 85 of 467 shall be examined in the light of evidence led in this case only either by prosecution or by defence. The reiteration of aforesaid principle becomes necessary as during the course of trial including at the time of final arguments and even in the written submissions repeated attempts were made by prosecution as well as by Ld. Counsels for the accused persons to refer to evidence led in other coal block allocation matters or to conclusions drawn in judgments delivered by this Court in other coal block allocation cases beyond the extent as was permissible by law. I shall be referring to such instances in the later part of my present judgment.
(F) ROLE OF PRIVATE PARTIES i.e. A-1 M/S VMPL, A-2 VIKASH PATNI AND A-3 ANAND MALLICK IN THE ALLOCATION OF MOIRA-MADHUJORE COAL BLOCK IN FAVOUR OF A-1 M/s VMPL BY MINISTRY OF COAL.
86. The present case primarily requires examination of role played by accused private parties as well as that of the accused public servants with reference to the circumstances in which company M/s VMPL came to be allocated Moira-Madhujore coal block situated in the State of West Bengal. However I first intend to deal with the role played by the accused private parties, for the same will only facilitate in understanding the role played by accused public servants more clearly. However even to understand the role played by the accused private parties in proper perspective, certain factual aspects of the matter needs to be revisited. The said factual aspects will throw light as to the circumstances in which the application CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 86 of 467 submitted to MOC on behalf of A-1 M/s VMPL for allocation of a captive coal block was pursued by the company and what was their actual intention in obtaining allocation of any such captive coal block. It will also show as to whether there was ever any intention of the company M/s VMPL or its Directors/officers to establish any such integrated steel plant in Bihar for which allocation of a coal block was sought for by them from MOC.
87. It is the admitted case of A-1 M/s VMPL that in the year 2006 it had applied to Government of Bihar for allotment of 200 acres of land to establish an integrated steel plant in Begusarai District, Bihar. Accordingly on request of the company, BIADA had decided to allot 200 acres of land in District Begusarai Bihar to the company. In fact the State Investment Promotion Board (SIPB), Government of Bihar had also approved in principal the said proposal of the company to set up an integrated steel plant in the State. In this regard a communication dated 12.08.2006 was sent to A-3 A.K. Mallick, Business Development Manager, M/s VMPL by Department of Industries, Government of Bihar vide letter No. 1408 dated 12.08.2006 [available at page 3 in Ex. P-81 (Colly) (D-88)]. The said letter read as under:
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 87 of 467 "Government of Bihar Department of Industries (Tech. Dev.) Letter No. 1408 Dated 12-8-06 From Mahesh Prasad Director, Tech. Development, Bihar, Patna.
To A.K. Mallick Business Development Manager, Vikash Metal & Power limited.
35 Chittranjan Avenue 6th Floor Kolkata-700012. Phone-913322115115, 22116114 Fax-913322115390 Sub:- Proposal for setting an Integrated Steel Plant of Bihar.
Sir, In pursuant to your letter dated 04-08-06, your proposal was placed before State Investment promotion Board on 07-08-2006. In this Board your proposal for setting an Integrated Steel Plant has been approved in principal. You have not submitted project report. Therefore you are also requested to submit project report immediately.
This is your information and necessary action please.
Yours faithfully, Sd/-
(Mahesh Prasad) Director Technical Development Bihar, Patna."
(Emphasis supplied by me)
88. As coal and iron ore were the two important raw materials required for running a sponge iron plant so the company in order to procure iron ore for its proposed integrated steel plant had applied to Government of Orissa for grant of iron ore mine. Accordingly the CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 88 of 467 company informed Government of Bihar that they have already applied for iron and manganese ore mine to Government of Orissa on 01.03.2004 and it was requested that Government of Bihar may recommend the case of company M/s VMPL to Secretary, Department of Mines, New Delhi and also to Principal Secretary, Department of Steel and Mines, Bhubaneshwar, Orissa so that the iron and manganese ore mine applied for by the company may be approved and allotted in their favour. It was also communicated to Government of Bihar that construction of the steel industry shall be started as soon as possible. [In fact company M/s VMPL had earlier also applied to Government of Jharkhand for allotment of an iron ore mine as prior to Bihar it had proposed to establish its steel project in Jharkhand only.]
89. Accordingly based on one such communication dated 11.09.2006 [available at page 96 in Ex. P-81 (Colly) (D-88)] made by the company M/s VMPL, Sh. S. Vijayaraghwan, Industrial Development Commissioner, Department of Industry, Government of Bihar wrote a letter dated 27.09.2006 [available at page 97 in Ex. P- 81 (Colly) (D-88)] to Secretary, Department of Mines, Government of India recommending the case of company M/s VMPL for allotment of iron and manganese ore mine in Orissa. Copy of the said communication was also sent to Principal Secretary, Ministry of Steel and Mines, Government of Orissa. In the meantime company M/s VMPL however made yet another communication dated 27.09.2006 to Executive Director, BIADA requesting that in addition to 200 acres CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 89 of 467 of land which has already been applied for by the company for setting up an integrated steel plant in Bihar, the company may also be allotted an additional 100 acres of land for second phase of the project. A sum of Rs. 6 lacs was also deposited with BIADA as the booking amount @ Rs. 2000/- per acre. The said communication dated 27.09.2006 [available at page 98-99 in Ex. P-81 (Colly) (D-88)], read as under:
VIKASH METAL & POWER LIMITED
An ISO 9001 : 2000 COMPANY Regd. Office:
An Integrated Steel Plant 35, Chittaranjan Avenue, 6th Floor
Kolkata - 700012, India
Phone : +91 33 22115115, 22116114
Fax : +91 33 22115390
E-mail : Info @ Vikashmetalpower.com
Website : www.vikashmetalpower.com
Date: 27/09/06
To,
The Executive Director
Bihar Industrial Area Development Authority
Regional Office, Darbhanga
Kind Attn:- Er. Anil Kumar Thakur
Sub:- Allotment of 300 (Three Hundred) Acre land at Growth Centre Begusarai for our proposed Integrated Steel Plant.
Respected sir, As you know that our organization M/s Vikash Metal & Power Ltd has proposed to setup an Integrated Steel Plant in Bihar, for which we have applied for 200 (Two Hundred) Acre of land to BIADA. But our management has decided to acquire an additional 100 (One Hundred) Acre of land for the II phase of the project. Therefore we humbly request your kind self to allot us 300 Acres of land instead of 200 Acres for our proposed project.
In the meeting held on 19th Sept, 2006 at Patna, BIADA has instructed us to deposit Rs. 2000/- per Acre for allocation of land for our proposed project. We are enclosing herewith Draft No. 008133 dated 25/09/2006 for Rs. 6 (Six) Lacs in favour of BIADA Payable at Darbhanga as our booking money for the land for our proposed project. But we have already inform you that to run an Integrated Steel Plant the major raw materials are Iron ore and Coal. The Department of Industries CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 90 of 467 of Bihar Govt. has assured us that they will recommend our name to the Central Govt. for allocation of Iron ore and Coal Mines. On the basis of the assurance we are depositing Rs. 6 (Six) Lacs as our booking money for the allocation of land for our project. Therefore we request you to kindly allot us 300 Acre of land immediately so that we can start our Civil Work for our proposed project at the earliest. We also at the same time like to inform you that any other expenses / payments will be made by us only after the recommendation / allocation of Iron ore and Coal mines.
We also would like to bring to your kind notice that if we are not allotted any Iron ore and Coal Mines then the land we will purchase for our proposed project will be of no use. Therefore in that case we shall request you to return us the booking money of Rs. 6 (Six) Lacs which we have deposited with you and we shall shift our project to some other state.
We solicit your kind cooperation in the above mentioned matter.
Thanking you Yours faithfully For Vikash Metal & Power Ltd.
Sd/-
(Anand Mallick) Business Development Manager Encl: As above.
C.C. Industrial Development Commissioner, Patna Managing Director, BIADA"
(Emphasis supplied by me)
90. Accordingly pursuant to certain further communications entered into between BIADA and the company, land measuring 300 acres in block No. 64, Begusarai Growth Centre, Bihar was allotted in favour of M/s VMPL by BIADA. The company was however also called upon to deposit a sum of Rs. 39,15,00,000/-(Rs. Thirty Nine Crores Fifteen Lacs) for allotment of said 300 acres of land on adhoc basis. Letter for allotment dated 07.12.06 Ex. PW 2/D-2 (available at page 345 in D-4) issued by BIADA in this regard read as under: CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 91 of 467 BIHAR INDUSTRIAL AREA DEVELOPMENT AUTHORITY (A Govt. Of Bihar Undertaking) Regional Office, Bela, Darbhanga E-mail:-biadadarbhanga@rediffmail.com Phone No-06272-247505 Fax-06272-247045 No 1672 Dated 7/12/06 From, Er. Kumar Thakur Executive Director.
To, M/s Vikash Metal & Power Ltd.
Sri Vikash Patni, Managing Director 35, Chittranjan Avenue, 6th Floor.
Kolkata - 700012 Sub:- Allotment of 300 Acre of land to M/s Vikash Metal & Power Ltd. Sir, With reference to your letter No. NIL Dated 13/11/06 For allotment of land in Begusarai Growth Centre to M/s Vikash Metal & Power Ltd. M.D. Sri Vikash Patni for manufacture of Integrated Steel Plant with Power Plant Area 300 Acre of land in plot No. 64 in Begusarai Growth Centre is allotted to this unit on lease for 90 (ninety) years on the following terms and conditions:-
The unit will have to deposit a sum of Rs. 39,15,00,000/- (Rupees thirty nine Crores fifteen lacs) only for 300 Acre of land calculated @ Rs. 13,05,000/- (Rupees Thirteen lacs five thousand) only per acre on adhoc basis towards the cost of land and its development charge which may please be paid to Bihar Industrial Area Development Authority in the shape of Bank draft payable at Darbhanga. The final price of land will, however, be fixed the actual cost of the development of the land known and the unit will have to pay the difference between the adhoc rate and the rate finally determined by the Bihar Industrial Area Development Authority and they will have to execute an agreement to this effect and deposit the 1st installment @ 30% of the total value of land within the period of three months in special case as per order of the Govt.
In case the unit so desire it can deposit rest price of land other them 1st installment in 7 (Seven) equal yearly installment with 5% interest and rebate of 2% on timely payment of installment and also with penal interest @ 2% after the period of installment paid over.
Possession over the land would be delivered to the unit after deposit of 1st installment of land price, acceptance of agreement Bond and an affidavit in prescribed proforma regarding registration of Scheme as well as allotment of land. The unit will have to give preference in employment as well as in practical training to the local people of the are in their factory.
This allotment letter is valid only when SSI Registration certificate is valid. They have to pay a rent of Rs. 100/- (Rupees One hundred) only per Acre per year and maintenance charge Rs. 500/- (Rupees Five hundred) only per acre per year which will be double after 4(four) years from the date of allotment subject to review after every 20 (Twenty) Years.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 92 of 467 The allottee should deposit the 1st installment of price of land and to execute agreement bond within three month from the date of allotment, falling which the allotted land will be treated as automatically cancelled and the amount so deposited will be forfeited.
The allottee should get the land of factory shed approved within THREE MONTHS of the date of allotment for which he must submit necessary plans to the proper authority within a month from the date of taking possession of the land. The allottee will not permitted for construction of residential house or they will not use the factory premises as a residence in any case, failing which the allotted land will be cancelled.
The industrial unit should go into production or the allottee should show positive progress for the same within Six months from the date of allotment of land. Your are requested to Kindly furnish acceptance of terms of allotment, the terms of lease along with agreement bond duly executed and the Bank Draft as 1 st installment within three months.
If the amount is not deposited within 90 (Ninety) days and the unit is not started construction work within six months & production work within two years from the date of issue of allotment order, the allotment order will automatically be cancelled in both cases without any previous notice and the amount so deposited will Stand forfeited.
Yours faithfully Sd/-
Executive Director, Bihar Industrial Area Development Authority Regional Office, Darbhanga.
(Emphasis supplied by me)
91. M/s VMPL thereafter vide letter dated 13.11.2006 Ex. PW 2/C-2 (available at page 243 in D-4) requested BIADA to issue a formal letter of allotment of land in their favour as the same will facilitate them in obtaining raw material from different government departments for their integrated steel plant. The said letter dated 13.11.2006 read as under:
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 93 of 467
"VIKASH METAL & POWER LIMITED Regd. Office:
35, Chittaranjan Avenue, 6th Floor
An ISO 9001 : 2000 COMPANY Kolkata - 700012, India
Phone : +91 33 22115115, 22116114
An Integrated Steel Plant Fax : +91 33 22115390
E-mail : Info @ Vikashmetalpower.com
Website : www.vikashmetalpower.com
Dated: 13.11.2006
To
THE MANGING DIRECTOR,
Bihar Industrial Area Development Authority
Patna
Sub: Issue of allotment letter for allocation of land at Bengusarai
for our proposed Integrated Steel Plant.
Dear Sir,
Referred our meeting held on 3rd November 2006 at your good office wherein it has been discussed that BIADA will give us six months time for depositing money for allocation of land on our request for our proposed Integrated Steel Plant at Bihar. We thankful to Department of Industries, Govt. of Bihar for issuance of recommendation of allocation of Iron Ore Mines at Orissa to Ministry of Mines, Govt. of India and Development of Steel & Mines, Orissa.
In reference to above we confirm that we have a good intention to purchase land and to establish our proposed project at Bihar for which we have already deposited Rs. 6 laks as an advance to BIADA for procurement of suitable land for our proposed Project at Bihar.
It is mandatory to any Govt. Body to mention the proposed site for procurement of raw material for our proposed project. We there for request you to issue us the allocation letter for the site at Begusarai allotted to us for our proposed project to enable us to procure raw material for the proposed Integrated Steel Plant to be setup by M/s Vikash Metal & Power Ltd.
We silicate your kind cooperation in the above mentioned matter.
Thanking you Yours faithfully for M/S VIKASH METAL & POWER LTD.
Sd/-
(Anand Mallick) Business Development Manager CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 94 of 467 Encl: As above.
C.C. I.D.C Deptt of Industries, Govt. of Bihar, Executive Director, BIADA, Darbhanga"
(Emphasis supplied by me)
92. Subsequent thereto M/s VMPL applied to MOC for allotment of a coal block for captive use stating that it intends to establish an integrated steel plant (of ultimate capacity 1.1 MTPA) in Begusarai District, Bihar. The said application was submitted to MOC on 12.01.2007 and it was stated in the application that 300 acres of land has been allotted to it. However immediately thereafter M/s VMPL made yet another communication dated 31.01.2007 (i.e. within next 20 days) to the Industrial Development Commissioner, Department of Industries, Government of Bihar stating that as the chances of their obtaining iron ore mine in their favour from Government of Orissa or Government of Jharkhand are very bleak so they are not in a position to start their proposed steel industry. It was also stated that BIADA had asked them to make full payment for 300 acres of land failing which Rs. 6 lacs already deposited by the company as advance will be forfeited. It was however further stated in the said communication itself that on account of policy of Government of Bihar for permitting setting up of an integrated power plant by private sector, the company M/s VMPL now intends to establish a 2000 MW power plant. It was also stated that an application dated 19.06.2006 in this regard was already submitted to Government of Bihar but the said proposal was cancelled by the Government. Request was thus made to revive the CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 95 of 467 said application of the company. A project report of the first phase of the proposed Power Project i.e. for an integrated power plant of 2 x 250 MW capacity which will have full utilization of the land as allotted by BIADA was also submitted alongwith the letter.
93. The said communication dated 31.01.07 (Available at page 10 in Ex. P-69 (Colly) (D-76)] was submitted under the signatures of A-3 Anand Mallick, Business Development Manager, M/s VMPL and the same read as under:
"VIKASH METAL & POWER LIMITED An ISO 9001 : 2000 COMPANY Regd. Office:
35, Chittaranjan Avenue, 6th Floor An Integrated Steel Plant Kolkata - 700012, India Phone : +91 33 22115115, 22116114 Fax : +91 33 22115390 E-mail : Info @ Vikashmetalpower.com Website : www.vikashmetalpower.com Date : 31.01.2007 To, The Industrial Development Commissioner Department of Industries, Govt. of Bihar Patna Subject : Proposal for setting up a 2 x 250 MW Independent Power Project (first phase) and Power Purchase Agreement with Bihar State Electricity Board.
Respected Sir, We have proposed to set up an Integrated Steel Plant in Bihar for which State Investment Promotion Board has principally approved our proposal and we have also been allotted 300 acre of land at Begusarai by Bihar Industrial Area Development Authority.
To setup an Integrated Steel Plant the major raw material is Coal & Iron Ore, regarding Coal Block, we have applied to Ministry of Coal, Govt. of India, New Delhi and there is a possibility of getting one Coal Block in the name of our company Vikash Metal & Power Ltd. but the other raw material Iron Ore for which you were kind enough to write to the Govt. of India, the Govt. of Orissa and Govt.
of Jharkhand for allocation of one Iron Ore Mines in the name of our company, CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 96 of 467 but in spite of your serious and sincere efforts there is a very bleak chances to allocate any Iron Ore Mines in our favour. Hence without proper planning of major raw material we cannot start our proposed Steel Industry mentioned above. In reference to land allotment, BIADA has given us three months time to make full payment against 300 acre land allotted to us for which we have paid an amount of Rs. 6 Lakhs as an advance towards purchase of land to BIADA, shall be forfeited by them if we do not clear the total payment of 300 acres within three months.
Now we come to know that Govt. of Bihar has shown interest for setting up IPPS by the private sectors in Bihar. In view of above we would like to mention that we have already applied to the Govt. of Bihar for setting up 2000 MW IPP (phase wise) vide our application dated 19.06.2006 along with the requisite fees and relevant documents. But due to the Tender Process the Govt. of Bihar has cancelled our Power Project Proposal. If the Govt. of Bihar is coming up with new Power Project Policy, then we request you to please revive our earlier application dated 19.06.2006 and permit us to set up a Power Plant in Bihar and at the same time a Power Purchase Agreement should also be done with us. We are submitting herewith Project Report of the first phase of our proposed 2 x 250 MW IPP, which will have the full utilization of the land as allotted to us by BIADA and definitely there will be a generation of employment in the State of Bihar and we also assured to the State Govt., we shall commence our civil work immediately after receiving due recommendation and permission from the State Govt.
We solicit your kind cooperation in the above mentioned matter Thanking you Yours faithfully For Vikash Metal & Power Ltd.
Sd/- (Anand Mallick) Business Development Manager Encl: - As above C.C: - CMD, BSEB Director, Industry Department"
(Emphasis Supplied by me)
94. The said new proposal to establish an integrated power plant of 2000 MW was accordingly considered by BIADA. Subsequently vide communication dated 15.03.2007 Ex. PW 2/DX-2 [available at CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 97 of 467 page 110 in file Ex. P-2 (Colly) (D-3)]. Department of Industries, Government of Bihar informed to M/s VMPL that pursuant to letter dated 31.01.2007 of the company, its proposal to establish a Power Plant of capacity 2 X 250 MW at Begusarai has been approved by the State Investment Promotion Board on 12.03.2007. the said communication dated 15.03.2007 read as under:
"Government of Bihar Department of Industries (Tech. Dev.) Letter No. 517 Dated 15/3/07 4/तक०ववववध -42/07 From Mahesh Prasad Director, Tech Development Bihar, Patna To, M/s Vikash Metal & Power Ltd., 35, Chittaranjan Avenue, 6th Floor, Kolkatta- 700012.
Sub:-Proposal for setting up a 2x250 MW Independent Power Project.
Sir, In pursuant to your letter dated 31.01.2007, I am to inform you that your proposal for establishment of 2x250 MW Power Plant at Begusarai has been approved by the State Investment Promotion Board on 12.03.2007.
Thanking you, Yours faithfully, Sd/- 15/03/07 (Mahesh Prasad) Director Technical Development Bihar, Patna"
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 98 of 467
95. The company M/s VMPL thereafter made yet one more communication dated 09.04.07 to Executive Director, BIADA wherein also it stated that in the absence of proper raw material it will not be possible for them to put up the proposed integrated steel plant. It was stated that the company has accordingly decided that it shall put up a 2000 MW integrated power plant. It was also informed that the said proposal of integrated power plant has even been approved by State Investment Promotion Board, Government of Bihar on 12.03.2007. It was further stated that while coal to run the power plant will be arranged by them but in order to establish 2000 MW power plant, the company will be requiring total of 1000 acres of land. It was thus stated that in addition to 300 acres of land earlier allotted by BIADA, additional land measuring 700 acres be also allotted to the company. A request was also made to BIADA that the date of depositing money towards 300 acres of land be also extended for a period of 6 months so that in the meantime MOU may be signed with Government of Bihar and adequate quantity of coal to run the power plant may be arranged. The said communication dated 09.04.07 Ex. PW 2/E-1 [Available at page 115-114 in file Ex. P-2 (Colly) (D-3)] read as under:
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 99 of 467 VIKASH METAL & POWER LIMITED Regd. Office:
35, Chittaranjan Avenue, 6th Floor Kolkata - 700012, India An ISO 9001 : 2000 COMPANY Phone : +91 33 22115115, 22116114 Fax : +91 33 22115390 An Integrated Steel Plant E-mail : Info @ Vikashmetalpower.com Website : www.vikashmetalpower.com Date 9-04-2007 To, The Executive Director Bihar Industrial Area Development Authority Darbhanga Subject :- Allotment of 300 acre of land to M/s Vikash Metal & Power Ltd.
Ref. Letter No. 1672 Dated 7-12-06.
Dear Sir,
Referred to your letter as mentioned above we would like to bring your kind notice that 300 acre of land was allotted to us for our Proposed Integrated Steel Plant at Begusarai, Bihar. Earlier we have discussed the matter with various officials that our Proposed Integrated Steel Plant will only be viable if we were allotted Iron Ore Mines and suitable Coal Block, for which we have written several letter to the concerned officials to allot us an Iron Ore Mines so that we can establish our proposed Integrated Steel Plant in Bihar at the earliest.
Now looking in to the market scenario it would not be possible for us to put up the Proposed Integrated Steel plant without allotment of any Iron ore Mines in our favour. Therefore we have decided that we shall put up our Proposed 2000 MW IPP in Phase wise so that we can support the Bihar Government to supply with power to its people in the State. We also look like to mention that our Proposed IPP has already been given approval by SIPB (copy enclosed) and necessary Coal to run the Power Plant will be arranged by us. We have alredy been allotted 300acre of land but to put up 2000 MW Power Plant 1000 acre of land is necessary, therefore we request you to allot us a further 700 acre of land so that we can plan our Proposed Project accordingly.
Sir, We would like to make an appeal that kindly extend the date of depositing money for the land allotted to us for the further period of 6 month so that in the mean time MOU can be sign with the Government of Bihar and also we could arrange adequate quantity of Coal to run the Power Plant interruptedly. We are submitting here with the Project Report of our Proposed 2000 MW IPP for your kind perusal.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 100 of 467 We solicit your kind Co-operation in the above mentioned matter.
Thanking you Your's faithfully For Vikash Metal & Power Ltd sd/-
(Anand Mallick) Business Development manager Encl :- As above.
CC :- MD, BIADA, Patna WORKS : VILL. : PORADIHA, P.S. : SANTURI, DIST. : PURULIA, WEST BENGAL, PIN-722 153, PHONE : 03251272158/159, FAX : 03251272160 (Emphasis supplied by me)
96. At this stage it would be worthwhile to mention that in the meantime company M/s VMPL was being repeatedly called upon by BIADA to deposit the money amounting to Rs. 39,15,00,000/- towards allotment of 300 acres of land. The company was also asked to undertake construction of boundary wall on the said land by 30.06.2007.
97. One such letter dated 07.05.2007 was issued by BIADA to M/s VMPL and wherein the company was also asked to complete construction of boundary wall around 300 acres of land allotted to it by 30.06.2007. Time was also given to the company to deposit the cost of land also by 30.06.07. The letter dated 07.05.07 Ex. PW 2/F [Available at page 116 in file Ex. P-2 (Colly) (D-3)] read as under:
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 101 of 467 वबिहहार आआै दद्योवगिक कक्षेत ववकहास पहाधधकहार कक्षेतत्रीय कहायहार्यालय, दरभभगिहा ।
Email biadadarbhanga@rediffmail.com Phone No: 06272-247505 Fax- 06272-
247045 पतहाभकक- 478 वदनहाभकक- 07.05.07 पक्षेषक, अवनल ककमहार ठहाककर कहायर्या कहारत्री वनदक्षेशक।
सक्षेवहा मम, सवर्या शत्री ववकहास मक्षेटल एभ ड पहावर धल0 शत्री ववकहास पटनत्री, पबिभध वनदक्षेशक, 35 वचितरभजन एवन्यय 6 वव फ्लद्योर, कद्योलकहातहा - 700 012 ववषयक- सवर्या शत्री ववकहास मक्षेटल एभ ड पहावर धल० कद्यो गहाक्षेथ समटर, बिक्षेगिकसरहाय मम 2000 मक्षेगिहावहाट पहावर प्लहाभट कक स्थहापनहा कक्षे धलए 1000 एकड भयवम आवभटन कक्षे सभबिभध मम।
महहाशय, उपरद्योक ववषय पर कहनहा हआै वक वबियहाडहा कक्षे पत्री०सत्री०सत्री० कक बिआैठक वदनहाभक 01.05.07 धजसमम आपकक्षे पवतवनधध भत्री उपसस्थत थम आपकक्षे पररयद्योजनहा कक ववस्ततृत समत्रीकहा कक गिरर्या ।
समत्रीकद्योपरहान्त सवमवत दहारहा यह वनरर्या य धलयहा गियहा वक रकहारर्या आवभवटत ३०० एकड भयवम मम चिहारर तरफ चिहहारवदवहारत्री वनमहार्यार वदनहाभक 30.06.07 तक कर लम। रसत्री अवधध कद्यो उनकक्षे अनकरद्योध पर अवधध ववस्तहार समझहा जहायक्षेगिहा। परभतक आवभवटत भयवम पर रकहारर्या कहा भहाआैवतक स्वहावमत्व नहव महानहा जहायक्षेगिहा।
उपरद्योक अवधध तक अगिर रकहारर्या दहारहा रसकहा अनकपहालन नहव वकयहा जहातहा हआै तद्यो आवभवटत भयवम रदद कर दत्री जहायगित्री। यह भत्री वनरर्या य धलयहा गियहा वक उपरद्योक ववरर्या त अवधध कक्षे ददौरहान यवद कद्योरर्या बिडक्षे उदमत्री दहारहा उदद्योगि कक स्थहापनहा कहा आवक्षेदन पहाप हद्योतहा हआै तद्यो उनकक्षे आवक्षेदन पर ववचिहार वकयहा जहा सकतहा हआै।
अतक आप सवमवत कक्षे वनरर्या य कक्षे आलद्योक मम अवबिलम्बि कहारर्या वहारर्या शकर करम । आपकक्षे रर्या कहारर्या कद्यो वदनहाभक CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 102 of 467 30.06.07 तक आवभवटत भयवम कक रहावश जमहा करनक्षे कक अवधध ववस्तहार भत्री रस कहायहार्यालय कक्षे पहातहाभक 1672 वदनहाभक 07/12/06 कक्षे क्रम मम दत्री जहातत्री हआै।
ववश्वहासजन कहायर्या कहारत्री वनदक्षेशक।
जहापहाभकक- 478 वदनहाभकक- 07.05.07 पवतधलवपक- पभहारत्री ववकहास, वबिहहार आआै दद्योवगिक कक्षेत ववकहास पहाधधकहार, रसन्दरहा भवन, बिक्षेलत्री रद्योड, पटनहा कहाक्षे वदनहाभक 02.05.07 कद्यो पत्री०सत्री०सत्री० कक्षे अनकपहालन मम सयचिनहाथर्या एवभ आवश्यक कहारवहारर्या हक्षेतक पक्षेवषत ।
कहायर्या कहारत्री वनदक्षेशक।
(Emphasis supplied by me)
98. Thereafter vide another communication dated 15.06.07 company was again reminded that the period of deposit of requisite amount towards allocation of land or construction of boundary wall i.e. 30.06.2007 is soon going to expire and as the company has neither made any payment towards cost of land and has also not undertaken construction of boundary wall so it appears that company was no longer interested in the allotment of said land and accordingly company was issued a show cause notice as to why the period of allotment of land may not be deemed to have expired. The said communication dated 15.06.07 Ex. PW 2/F-1 [Available at page 117 in file Ex. P-2 (Colly) (D-3)] read as under:
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 103 of 467 "वबिहहार आआै दद्योवगिक कक्षेत ववकहास पहाधधकहार कक्षेतत्रीय कहायहार्यालय, दरभभगिहा ।
Email biadadarbhanga@rediffmail.com Phone No: 06272-247505 Fax- 06272-247045 पतहाभकक- 1111 / वदनहाभकक- 15.06.07 / पक्षेषक, एन०कक्षे०यहादव कहायर्या कहारत्री वनदक्षेशक (प०) सक्षेवहा मम, सवर्या शत्री ववकहास मक्षेटल एभ ड पहावर धल0 शत्री ववकहास पटनत्री, पबिभध वनदक्षेशक, 35, वचितरभजन एवन्यय 6 ठत्री फ्लद्योर, कद्योलकहातहा - 700012 ववषयक- सवर्या शत्री ववकहास मक्षेटल एभ ड पहावर धल० कद्यो गहाक्षेथ समटर, बिक्षेगिकसरहाय मम पहावर प्लहाभट कक स्थहापनहा कक्षे धलए भयवम कक्षे आवभटन कक्षे सभबिध भ मम।
महहाशय, उपरद्योक ववषय रस कहायर्या लय कक्षे पतहाभक 478 वदनहाभक 07.05.07 कहा कतृपयहा सभदभर्या करम। पत दहारहा आपकद्यो सयवचित वकयहा जहा चिककहा हआै वक रस कहायहार्यालय कक्षे पतहाभक 1672 वदनहाभक 07.12.06 दहारहा आवभवटत 300 एकड भयवम मम चिहारर चिरफ चिहहारवदवहारत्री कहा वनमहार्यार 30.06.07 तक कर लत्री जहाय आआै र रस अवधध कद्यो हत्री आपकक्षे अनकरहाक्षेध पर अवधध ववस्तहार समझत्री जहाय तथहा रसक्षे आवभवटत भयवम पर रकहारर्या कहा भहाआैवतक स्वहावमत्व नहव महानहा जहाय। पत दहारहा यह भत्री सयवचित वकयहा गियहा थहा वक उपरद्योक अवधध तक अगिर रकहारर्या दहारहा रसकहा अनकपहालन नहव वकयहा जहातहा हआै तद्यो आवभवटत भयवम रदद कर दत्री जहायगित्री। उपयकर्याक शतहार भ कक्षे अनकपहालन कक्षे सहाथ हत्री वदनहाभक 30.06.07 तक आवभवटत भयवम कक रहावश जमहा करहानक्षे कक अवधध दत्री गियत्री थत्री।
उपयकर्याक तथ्यर कहा अनकपहालन आपकक्षे स्तर सक्षे अबि तक नहव हह आ हह। स्थल वनरत्रीकर सक्षे यह भत्री स्पष हआै वक रस भयवम पर कद्योरर्या वनमहार्यार कहायर्या पहारम्भ नहव वकयहा गियहा हआै, जबिवक भयवम आवभटन कक महान्यतहा अवधध वदनहाभक 30.06.07 कद्यो समहाप हद्यो रहत्री हह। एक्षे सहा पतत्रीत हद्योतहा हआै वक आवभवटत स्थल पर पस्तहाववत प्लहाभट स्थहापनहा हक्षेतक अबि आप रच्छकक नहव हआै। अतक पत पहाप हद्योतक्षे हत्री कतृपयहा स्पष करम वक उपयकर्याक CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 104 of 467 कहारहारर सक्षे क्यर नहव भयवम आवभटन आदक्षेश कक महान्यतहा अवधध समहाप समझत्री जहाय।
ववश्वहासजन
कहायर्या कहारत्री वनदक्षेशक (प०)
जहापहाभकक- 1111 / वदनहाभकक- 15/06/07 /
पवतधलवपक- पबिभध वनदक्षेशक, वबिहहार आआै दद्योवगिक कक्षेत ववकहास पहाधधकहार, रसन्दरहा भवन, बिक्षेलत्री रद्योड, पटनहा कहाक्षे सयचिनहाथर्या एवभ हक्षेतक पक्षेवषत ।
कहायर्या कहारत्री वनदक्षेशक (प०)"
(Emphasis supplied by me)
99. Subsequently vide another communication dated 27.06.07 company M/s VMPL was informed by BIADA that if even 30% of the cost of land is not deposited by the date fixed then the allotment of land should be deemed to have been cancelled.
100. However in response to communication dated 15.06.2007 of BIADA the company M/s VMPL wrote a letter dated 28.06.07 Ex. PW 2/E-3 (D-3) to Managing Director BIADA stating that they have already applied to MOC for allotment of coal to serve their proposed power plant at Begusarai. It was also stated that a meeting of the Screening Committee has taken place on 20.06.2007 but the result thereof is still awaited. It was further stated by the company that without steady support and supply of coal the proposed power plant will be unviable. It was also stated by the company that the land which has been allotted by BIADA will only be utilized to set up the proposed power plant and no other alternate industry. Extension of CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 105 of 467 date of payment of necessary amount towards allotment of land and to construct boundary wall thereof was thus prayed for till 31.08.2007. The communication dated 28.06.2007 Ex. PW 2/E-2 [Available at page 120 in file Ex. P-2 (Colly) (D-3)] read as under:
"VIKASH METAL & POWER LIMITED Regd. Office:
35, Chittaranjan Avenue, 6th Floor
An ISO 9001 : 2000 COMPANY Kolkata - 700012, India
Phone : +91 33 22115115, 22116114
An Integrated Steel Plant Fax : +91 33 22115390
E-mail : Info @ Vikashmetalpower.com
Website : www.vikashmetalpower.com
Date : 28.06.2007
To,
The Managing Director,
Bihar Industrial Area Development Authority, Patna Subject : Proposed to set up 2 x 250MW Power Plant at Begusarai, Bihar Ref : Your letter No. 1111 dated 15.06.07 issued by your Executive Director, Regional Office, Darbhanga Respected Sir, Refere to your above mentioned letter we would like to bring to your kind notice that to setup 2 x 250MW Power Plant, the basic raw material is coal and the same has earlier informed to you in our all correspondence. For uninterrupted supply of coal, we have applied to the Ministry of Coal for allotment of coal block to serve our proposed Power Plant at Begusarai, for which Screening Committee Meeting was held on 20th June 2007 at New Delhi, and the result of the Screening Committee are still awaited.
Sir, it is needless to explain that without the steady support and supply of coal, our proposed Power Plant will be unviable. The land which has been allotted to us by BIADA will only be utilized to setup the proposed Power Plant and no other alternate industry.
Therefore, as you have mentioned in your letter to start the Boundary wall and to pay the balance amount against allotment of land to us by 30.06.2007 will not be possible for us until and unless the outcome of the screening Committee Meeting are known to us. The fate of the project is totally depending on the allotment of the coal block to us. Hopefully the result of the Screening Committee Meeting will be known by 1 st of August 2007. Therefore, we request you to kindly extend the date of payment for allotted land and also CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 106 of 467 to construct the boundary wall at our site from 30.06.07 to 31.08.07.
We solicit your kind cooperation in the above mentioned matter Thanking you For Vikash Metal & Power Ltd.
Sd/- (Anand Mallick) Business Development Manager C.C.
1. Principal Secretary, Dept of Industry, Patna
2. Executive Director, Regional Office, Darbhanga (Emphasis supplied by me)
101. The said communication was also made by A-3 Anand Mallick under his own signatures on behalf of M/s VMPL. However subsequent thereto BIADA decided not to grant any further time to the company either to make payment towards allotment of land or to construct the boundary wall and vide order dated 21.09.2007 the allotment of 300 acres of land in favour of the company was cancelled. The amount of Rs. 6 lacs earlier deposited by the company M/s VMPL as processing fee was also forfeited.
The letter dated 21.09.2007 Ex. PW 2/G [Available at page 124 in file Ex. P-2 (Colly) (D-3)] read as under:
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 107 of 467 "वबिहहार आआै दद्योवगिक कक्षेत ववकहास पहाधधकहार कक्षेतत्रीय कहायहार्यालय, दरभभगिहा ।
Email biadadarbhanga@rediffmail.com Phone No: 06272-247505 Fax- 06272-247045 कहायहार्यालय आदक्षेश सवर्या शत्री ववकहास मक्षेटल एभ ड पहावर धल० कद्यो गहाक्षेथ समटर, बिक्षेगिकसरहाय मम रन्टत्रीगक्षेटक्षेट स्टत्रील प्लहाभट तथहा पहावर प्लहाभट कक स्थहापनहा कक्षे हक्षेतक प्लहाआैट नभ० 64 सक्षे 300.00 एकड भयवम रस कहायहार्यालय कक्षे पतहाभक 1672 वदनहाभक 07.12.06 दहारहा 300 एकड भयवम आवभवटत कक गिरर्या थत्री । रकहारर्या कद्यो आवभवटत भयवम कहा पथम वकस्त कक रहावश जमहा करनक्षे हक्षेतक छक महाह कहा समय वदयहा गियहा, धजसकहा अनकपहालन रकहारर्या दहारहा नहव वकयहा गियहा । रकहारर्या कक्षे अनकरद्योध एवभ पत्री० सत्री० सत्री० कक्षे वनरर्या य वदनहाभक 21.05.2007 कक्षे वनरर्या य कक्षे आलद्योक मम रकहारर्या कद्यो आवभवटत भयवम कक्षे चिहारद्यो तरफ चिहहारवदवहारत्री कहा वनमहार्यार कहायर्या वदनहाभक 30.06. 2007 तक कर लक्षेनक्षे हक्षेतक वनदक्षेश रस कहायहार्यालय कक्षे पतहाभक 478 वदनहाभक 07.05. 2007 कक्षे दहारहा वदयहा गियहा । पकनक पतहाभक 1111 वदनहाभकक- 15.06. 2007 कक्षे दहारहा रकहारर्या कद्यो नद्योवटश दत्री गिरर्या कक वदनहाभक 30.06. 2007 तक चिहहारवदवहारत्री कहा वनमहार्यार एवभ आवभवटत भयवम कक पथम वकस्त कक रहावश जमहा कर दत्री जहाय अन्यथहा भयवम आवभटन कक महान्यतहा रदद समझत्री जहाएगित्री । रकहारर्या दहारहा उसकहा भत्री अनकपहालन नहव वकयहा गियहा एवभ अपनक्षे पत वदनहाभक 28.06.2007 एवभ फआैक्स 02.07.2007 दहारहा यह अनकरद्योध वकयहा गियहा वक उन्हम 31.08.2007 तक कक अवधध कक ववस्तहार कक जहाय। वदनहाभक 31.08.2007 कक समय अवधध बित्रीत जहानक्षे कक्षे बिहाद भत्री स्थल पर वकसत्री पकहार कक कद्योरर्या कहारर्या वहारर्या नहव कक गिरर्या । रन सभत्री तत्यर कक वववक्षेचिनहा कर वबियहाडहा मकख्यहालय कद्यो अवगित करहायहा गियहा । समत्रीकद्योपरहान्त पबिभध वनदक्षेशक वबियहाडहा दहारहा रकहारर्या कद्यो आवभवटत भयवम कद्यो रदद करनक्षे कहा आदक्षेश वदयहा गियहा सहाथ हत्री यह भत्री वनदक्षेश वदयहा गियहा वक अगिर भववष्य मम रकहारर्या कद्यो भयवम कक आवश्यकतहा हद्योनक्षे पर पकनक दबिक हारहा आवक्षेदन दक्षे सकतक्षे हआै।
तदनकसहार सवर्या शत्री ववकहास मक्षेटल एभ ड पहावर धल० कद्यो गहाक्षेथ समटर, बिक्षेगिकसरहाय मम आवभवटत 300.00 एकड भयवम रदद वकयहा जहातहा हआै। भयवम आवभटन पत मम वदयक्षे गियक्षे शतर्या कक्षे अनकसहार जमहा कक गियत्री रहावश पद्योसक्षेधसभगि फक जप कक जहातत्री हआै।
पबिभध वनदक्षेशक कक्षे आदक्षेश वदनहाभक 14.09.2007 कहायर्या कहारत्री वनदक्षेशक जहापहाभकक- 2259 / वदनहाभकक- 21-09-07 / पवतधलवपक- सवर्या शत्री ववकहास मक्षेटल एभ ड पहावर धल0]शत्री ववकहास पटनत्री, पबिभध वनदक्षेशक 35, वचितरभजन एवन्यय 6 ठत्री फ्लद्योर, कद्योलकहातहा - 700012 कहाक्षे सयचिनहाथर्या हक्षेतक पक्षेवषत । भयखभड रदद हद्यो जहानक्षे कक्षे कहारर उस पर CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 108 of 467 सस्थत सहारत्री सम्पवतयर कद्यो हटहा कर भयखभड कहा पभहार कक्षेतत्रीय पभहारत्री कद्यो ससौंप दम, अन्यथहा कहानयनत्री कहारवहारर्या कक जहायक्षेगित्री।
कहायर्या कहारत्री वनदक्षेशक
जहापहाभकक- 2259 / वदनहाभकक- 21-09-07 /
पवतधलवपक- कक्षेतत्रीय पभहारत्री गहाक्षेथ समटर, बिक्षेगिकसरहाय कद्यो सयचिनहाथर्या एवभ आवश्यक कहारर्या वहारर्या हक्षेतक पक्षेवषत । कक्षेतत्रीय पभहारत्री कद्यो वनदक्षेश वदयहा जहातहा हआै वक वक्षे उपरद्योक उलक्षेधखत आदक्षेश कक्षे अनकपहालन कद्यो सकवनसश्चित करमगिक्षे।
कहायर्या कहारत्री वनदक्षेशक
जहापहाभकक- 2259 / वदनहाभकक- 21-09-07 /
पवतधलवपक- पबिभध वनदक्षेशक, वबिहहार आआै दद्योवगिक कक्षेत ववकहास पहाधधकहार, उदद्योगि भवन, पयवर गिहागाँधत्री मआैदहान पटनहा कक सक्षेवहा मम सयचिनहाथर्या पक्षेवषत।
कहायर्या कहारत्री वनदक्षेशक"
(Emphasis supplied by me)
102. The sole purpose of mentioning the aforesaid factual aspects by way of various communications undertaken by company M/s VMPL with BIADA is that within 20 days of having applied to MOC seeking allocation of a captive coal block for establishing an integrated steel plant at Begusarai Bihar the very idea of establishing any such integrated steel plant was completely dropped by the company M/s VMPL. In these circumstances all other issues which have cropped up in the present matter such as completeness of the application submitted by company M/s VMPL in terms of the guidelines issued by MOC or the issue relating to existing capacity or proposed capacity of the end use project as was mentioned in the CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 109 of 467 application or the issue relating to financial strength of the applicant company or whether accused persons were aware or not that allotment of 300 acres of land to company M/s VMPL by BIADA was subsequently cancelled, all ceases to have any significance in so far as the role of private accused persons is concerned. [I shall be however discussing all these aspects at some length separately also at a slightly later stage of the present judgment].
103. Thus irrespective of the aforesaid issues, the various communications made by company A-1 M/s VMPL with BIADA speak for themselves about the malafide intention on the part of accused persons in procuring allocation of a captive coal block from MOC, Government of India in favour of the company by representing that they intend to establish an integrated steel plant in Begusarai, Bihar, whereas they had actually dropped the very idea of establishing any such plant at all. Accused persons thus knew very well that they never intend to establish any such integrated steel plant at Begusarai Bihar. From the communication dated 31.01.07 [Part of Ex. P-69 (Colly) (D-76)] as reproduced above, it is crystal clear that at around the same time when application for allocation of captive coal block was submitted to MOC by A-1 M/s VMPL, it was communicated to BIADA by it that it will not establish any such integrated steel plant and that it rather proposes to establish an integrated power plant.
104. Before adverting further it will be now worthwhile to refer to the definition of the offence of cheating as given in Section 415 IPC.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 110 of 467 "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 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."
105. In this regard, it will be also now appropriate to first 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.
106. 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, CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 111 of 467 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.
107. It was thus 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.
More over 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.
108. Thus the very act of the accused persons in pursuing with their application before 36th Screening Committee, MOC and even making a presentation on 07.02.2008 before it representing that they intend to establish an integrated steel plant clearly shows the malafide intention of the accused persons in somehow procuring the allotment of a captive coal block from MOC, Government of India. The accused persons by dishonestly representing so thereby CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 112 of 467 deceived MOC, Government of India by inducing it to believe the claims made in their application followed by their presentation and feedback form submitted to the Screening Committee to be true. The malafide intention of the accused persons is thus writ large on the face of record and there is even no requirement of drawing any inference in that regard from the circumstances which even otherwise also stands well proved on record. The facts of the present case rather presents a situation where direct evidence of malafide intention on the part of accused persons in deceiving MOC and the Screening Committee is available.
109. In fact my subsequent discussion would show that even various claims in the application Ex. P-96 (Colly) (D-8) made by the accused persons were false to the knowledge of accused persons. The same will reinforce the conclusion that there existed malafide intention on the part of accused persons in procuring allocation of a captive coal block from MOC, Government of India.
110. It will be pertinent to mention that even while seeking allotment of land from BIADA, the proposal submitted to Government of Bihar by M/s VMPL was for integrated steel project of 6,50,000 MTPA only. The application dated 11.12.2006 submitted to Bihar State Pollution Control Board, Patna [available from page 121-122 in file Ex. P-81 (Colly) (D-88)] under the signatures of A-2 Vikash Patni for obtaining NOC under Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981, clearly states the proposed production capacity of sponge iron to be CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 113 of 467 6,50,000 TPA with a captive power plant of 100 MW only. It was this NOC applied to Pollution Control Board, Bihar which was mentioned at point 24 under the heading "Clearances For the Proposed End Use Plant" in the application Ex. P-96 (Colly) (D-8) submitted to MOC by the company M/s VMPL for seeking allocation of a captive coal block. However for reasons best known to the company M/s VMPL the proposed capacity of the End Use Project i.e. the integrated steel plant was mentioned in the application as 1.1 MTPA.
Thus from the aforesaid facts it becomes clear that right from beginning the company M/s VMPL was having a malafide intention of cheating MOC, Government of India so as to procure allocation of a captive coal block by knowingly making various false and frivolous claims in its application submitted to MOC. As shall be also discussed at a later stage of the present judgment that it is for this reason only no project report of the proposed end use project was filed alongwith the application Ex. P-96 (Colly) (D-8) for no such plant of capacity 1.1 MTPA sponge iron was in fact to be established. It is for this reason only that even the Tecno Economic Feasibility Report as was found in the searches carried out during the course of investigation at the residence of Directors of company M/s VMPL speak of a sponge iron plant of 6,50,000 TPA capacity only and not a plant of 1.1 MTPA capacity.
111. Moreover from the various communications made by company M/s VMPL with BIADA itself it is clear that the company had earlier also applied to MOC for allotment of a captive coal block and CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 114 of 467 its applications were considered by the earlier Screening Committees also. However on none of the two occasions the company was able to procure allocation of a coal block in its favour. These facts however does show that company M/s VMPL and its Directors/officers were well aware of procedure undertaken in MOC or in other Administrative Ministries with respect to allocation of a captive coal block in favour of any given applicant company.
112. Be that as it may, the aforesaid facts however clearly establish the existence of malafide intention on the part of company M/s VMPL and its Directors/officers in somehow procuring allocation of a captive coal block by deceiving MOC, Government of India in making them believe the various claims of company to be true even though the accused persons knew them to be false.
113. The aforesaid circumstances also throw light on yet another issue which though I shall be discussing separately also at a slightly later stage that accused persons knew very well that on account of non-compliance with the conditions of allotment of land i.e. failure to deposit of money towards allotment of land and failure to construct boundary wall around the land, the very allotment of land is liable to be cancelled by BIADA and also that the same has been in fact cancelled. I am still not on the contention of the accused persons that the formal letter of cancellation of allotment of land i.e. letter dated 21.09.07 issued by BIADA was never received by them. However from the various communications as were exchanged between BIADA and M/s VMPL as have been reproduced earlier, it is crystal CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 115 of 467 clear that the company was well aware of all the proceedings being undertaken in BIADA regarding allotment of said 300 acres of land. In fact it can not be presumed even for the sake of arguments that after submitting letter dated 28.06.07 in response to letter dated 15.06.07 of BIADA whereby company had sought extension of time to make payment and to construct boundary wall till 31.08.2007, it never pursued the matter further with BIADA. Moreover in the communications of BIADA as were sent to M/s VMPL, it was clearly stated that allotment of land will be deemed to be cancelled, if the company failed to make the payment and construct the boundary wall by the given date. The company M/s VMPL knew very well that they have neither deposited the cost of land or even 30% thereof as was asked for by BIADA and has also not constructed the boundary wall even till 31.08.2017 and thus the allotment of land in their favour is liable to be cancelled.
114. Thus from the aforesaid circumstances, it can not be even remotely presumed that accused persons were not aware of the factum of cancellation of allotment of 300 acres of land by BIADA on account of their failure to comply with the conditions of allotment. In fact the circumstances discussed above clearly show that company M/s VMPL had neither in fact any intention to establish the integrated steel plant nor even the integrated power plant.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 116 of 467 F (i) Actual purpose of seeking allocation of a captive coal block situated in state of West Bengal by A-1 M/s VMPL.
115. A question may however arise as to for what purpose the company was then trying to obtain allocation of a coal block. Though I shall be discussing this issue in detail at a later stage also while discussing the role of accused public servants but it will be suffice to state over here that coal is an important and valuable nationalised natural resource. Thus the foremost intention as is evident from the circumstances was to get hold of such an important natural resource which is of immense importance to various industries. Furthermore. M/s VMPL was admittedly having an existing steel plant in State of West Bengal and for which it was already having a coal linkage from Eastern Coalfield Ltd. It is also a well known fact that coal which is an important raw material for steel industry, if is procured by way of coal linkage from CIL or any of its subsidiary companies, then it is costlier than the coal procured by the industry concerned from captive coal mining. However, State of West Bengal which was the coal bearing state [Moira-Madhujore coal block was situated in State of West Bengal] had not recommended M/s VMPL for allocation of any captive coal block situated in the State. As shall be discussed subsequently also, the company M/s VMPL despite having applied to MOC for allocation of a captive coal block only for its proposed integrated steel plant at Begusarai, Bihar and having been recommended for allotment of captive coal block by the Screening Committee for its plant at Bihar only was however strangely allotted the coal block by Ministry of Coal, Government of India not only for its CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 117 of 467 proposed steel plant at Begusarai in Bihar but also for its existing steel plant at West Bengal. This circumstance rather simplifies the entire puzzle in whose maze the company M/s VMPL was trying to procure allocation of a captive coal block from MOC, Government of India. The company M/s VMPL thus got allocation of a captive coal block from MOC for its West Bengal plant also even though it never applied for the same.
116. At this stage, I would also like to mention that this entire conclusion ought to have been easily reached by the investigating agency itself during the course of investigation of the present case had there been a genuine and honest investigation of the matter. As has been already observed by me in my order dated 15.10.2014 while disagreeing with the closure report filed in the present case that the final report filed by CBI was more like a plea of defence of the accused persons than the report of an investigating officer. It is only on account of such dishonest investigation where the investigating officer has chosen to turn a blind eye to the documents available before it so as to draw a conclusion which is visible to a naked eye that the duty casted upon the Court increases manifold.
In the later part of the present judgment, I shall be highlighting a number of other instances also where on account of defective investigation irrational, illogical and illegal conclusions were drawn by the Investigating agency.
117. Though the act of deceiving MOC and thereby inducing it to CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 118 of 467 allot a captive coal block in favour of company M/s VMPL stands well proved beyond shadows of all reasonable doubts against the accused private parties but I now intend to discuss various other issues also i.e. whether the application of A-1 M/s VMPL was complete in terms of guidelines issued by MOC or whether any information as was submitted to MOC either in the application form or in the feed-back form was false and was also so to the knowledge of company M/s VMPL and its officers/Directors.
F (ii) Whether the application of M/s VMPL was complete in terms of the guidelines issued by MOC governing allocation of captive coal blocks.
118. Before I advert on to discuss the aforesaid issue, it will be pertinent to first mention as to what all documents were required to be annexed with the application by accused/applicant so that any application could be termed as a complete application. The guidelines issued by MOC provided various details/information under different heads i.e. "How to Apply", "Where to Apply", "Processing of application" etc. It also provided various factors on which interse priority was to be decided and also the documents which were to be annexed with the applications and failing which applications will be rejected being incomplete. The said guidelines as are available at page No. 73-94 Ex. PW 1/D (Colly) in file Ex. P-13 (D-17) read as under:
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 119 of 467 "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:
• 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) CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 120 of 467 • 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 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."
"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."
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 121 of 467 "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).
• 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 CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 122 of 467 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 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 CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 123 of 467 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
(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;
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 124 of 467 • 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 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 CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 125 of 467 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 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 CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 126 of 467 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 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.
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)
119. Thus from a bare perusal of the aforesaid guidelines under the heading "How to Apply", it is clear that every applicant company CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 127 of 467 was required to enclose with its application a project report in respect of the end use plant. Further if the project report were appraised by a lender, then the appraisal report was also to be submitted. Five copies of such a project report alongwith appraisal report was thus required to be submitted. The audited annual accounts/reports of last three years was also required to be submitted in five copies. A soft copy of the details filled in the application form was also required to be furnished in the specified Database Form in a CD alongwith the application. It was also mentioned in the guidelines that applications without the above accompaniments would be treated as incomplete and shall be rejected.
120. It is however the case of prosecution that no project report as was required to be filed in terms of the guidelines issued by MOC, was filed by the applicant company M/s VMPL and on this account alone, the application of M/s VMPL being incomplete was liable to be rejected at the thresh-hold itself. In order to support the aforesaid averment, prosecution has relied upon the application of M/s VMPL Ex. P-96 (Colly) (D-8) to show that it was not accompanied with any project report at all.
121. On the other hand the aforesaid arguments have been vehemently opposed by Ld. Counsels for the accused persons. In fact Ld. Counsel for A-2 Vikash Patni placed strong reliance on the documents Ex. P-81 (Colly) (D-88) recovered during the course of search operation carried out at the house of accused Vikash Patni himself wherein three covering letters vide which different CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 128 of 467 applications of M/s VMPL were allegedly submitted to MOC on 12.01.2007. It was submitted that though no such covering letter is available alongwith the application Ex. P-96 (Colly) (D-8), produced and relied upon by the prosecution but the covering letters which were recovered during the search operation conducted by CBI clearly carries stamp of Coal India Ltd. alongwith corresponding number of the register in which entry of receipt of various applications were being made alongwith the signatures of an official who received the same. It was submitted that in all the three covering letters which are part of documents Ex. P-81 (Colly) (D-88), it is clearly mentioned that project report in respect of end use plant - 5 copies were being submitted alongwith the application form. Details of various other documents as were submitted alongwith the application was also mentioned in the said covering letters. It was thus submitted that from the said covering letters, it is clearly evident that project report was indeed filed by company M/s VMPL alongwith its application as was submitted to MOC. It was also submitted that from the deposition of PW-12 N.R. Dash and the recommendation sent by Ministry of steel to MOC after examining the applications received by it also it is clear that a Techno Economic Feasibility Report (TEFR) was indeed available with Ministry of Steel with respect to the end use plant to be established by M/s VMPL at Begusarai, Bihar. It was also submitted that even during the course of search operation at the premises of accused persons such a TEFR was recovered by the CBI and which fact again goes to show that the same was duly filed alongwith the application by M/s VMPL. While referring to the deposition of PW-1 CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 129 of 467 V.S. Rana, the then Under Secretary, MOC it was submitted that he in his cross-examination stated that as the applications received were voluminous in nature and thus it may be possible that while shifting the said voluminous documents/papers from Scope Minar, Laxmi Nagar to Shashtri Bhawan, the project report attached with the application may have been misplaced.
122. In the aforesaid circumstances, it was submitted by Ld. Defence Counsel that from the documents relied upon by the prosecution itself and the evidence of prosecution witnesses, it has been clearly established that a Project Report was indeed available with Ministry of Steel alongwith the application of M/s VMPL. Ministry of Steel had admittedly seen and examined the TEFR filed by the company. It was thus submitted that the application Ex. P-96 (Colly) (D-8) produced and relied upon by the prosecution was clearly an incomplete document and no reliance can thus be placed on such an incomplete document to draw any conclusion much less any adverse inference against the accused persons.
My Discussion
123. At the outset, I may state that though the arguments so put- forth by Ld. Counsels for the accused persons appears to be very forceful but a closure scrutiny of the documents of the present case and the evidence of prosecution witnesses examined will clearly show the fallacy in the said arguments.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 130 of 467
124. Admittedly the application Ex. P-96 (Colly) (D-8) was submitted by M/s VMPL in the prescribed proforma as was issued by MOC. In the said application which has been admitted to be genuine u/s 294 Cr.PC by accused Anand Mallick and is stated to be the same application which was submitted to MOC, under his signatures, the following information has been mentioned at point No. 21:
21. DPR FOR THE END USE PROJECTS Yes No
(I) DPR prepared No
(ii) If yes, whether appraised by FI
125. Thus in view of the aforesaid facts mentioned in the application form itself by the company that no Detailed Project Report (DPR) has been prepared so it is difficult to even presume as to how such a report could have been even filed with the application. In fact it has never been the case of accused persons or claim made by them at any stage of the trial that the contents of the application much less those mentioned at point No. 21 were wrong or were incorrectly mentioned. Even nothing has been mentioned much less explained that if a Project Report was indeed filed alongwith the application then why at point No. 21 of the application it was stated that DPR has not been prepared.
126. Similarly it will be now also pertinent to refer to the "Form for Feed Back" as was submitted to the Screening Committee on 07.02.08 on behalf of company M/s VMPL under the signatures of A-3 Anand Mallick and that too after more than one year of submitting the CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 131 of 467 initial application. In the said "Form for Feed Back" i.e. Ex. P-98 (Colly) (D-37) also at point No. 8, the following information was mentioned:
"8. DPR for end use projects
(i) DPR prepared: Under appraisal.
(ii) If yes, whether appraised by FI.:"
127. Thus from a bare perusal of the Form for Feed-Back also it is clear that even after 13 months of submitting the application, the detailed project report was not yet filed by the company with MOC as the same was still stated to be under appraisal with the financial institution (FI). The question which however arises for consideration is as to in what circumstances the acknowledgement of receipt of application of the company then came to be given on a letter which specifically stated that various documents mentioned over there including project report in five copies have been enclosed. [The aforesaid question arises only if it is presumed that the letter being so relied upon by the prosecution was indeed the covering letter on which receipt of application in question was given by the MOC officials.]
128. The answer to the aforesaid issue is very short and crisp and is apparent on the face of record itself. PW-1 V.S. Rana, the then Under Secretary, MOC stated that when the applications were being received at Scope Minar, Laxmi Nagar, New Delhi then no record was maintained as to how many annexures or number of pages were CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 132 of 467 annexed with the main application form. It has also come in his evidence that on the last date of receipt of applications i.e. on 12.01.2007 there was huge rush of applicant companies on account of which number of counters were created for receiving the applications. In fact a perusal of register Ex. P-11 (D-15) shows that on 12.01.2007 itself about 785 number of applications were received.
129. Thus from the aforesaid circumstances, it is clear that as the guidelines issued by MOC governing allocation of captive coal blocks were available on the website of MOC and the same specified as to what all documents are to be filed alongwith the application so the applicant company M/s VMPL was certainly aware of all the documents which were required to be annexed with the applications. Thus in order to escape the attention at the time of receipt of applications itself that any of the requisite document is missing, the details thereof were duly mentioned on the covering letter of the application in accordance with the guidelines issued by MOC. Accordingly the MOC officials gave their acknowledgement of receiving the applications on the said covering letter itself. The said conclusion appears to be a natural corollary of the overall facts and circumstances in as much as the accused persons ought to have otherwise explained as to in what circumstances it was stated in the application that no DPR has been attached and even after 13 months while submitting the feed-back form it was still stated that the DPR is under appraisal and no such DPR was admittedly filed even with the feed-back form.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 133 of 467
130. No reason worth the name has been put forth by the accused persons in this regard and I have no reason to disbelieve the details as have been filled-up in the application as regard DPR. In fact PW-1 V.S. Rana, Under Secretary, CA-1 Section, MOC in his cross- examination conducted by Ld. Counsel for A-2 Vikash Patni stated as under:
"It is correct that at the time of receipt of applications in Scope Minar, Laxmi Nagar no record was maintained as to how many annexures of number of pages were annexed with the main application form."
131. There are however other very cogent reasons also which also supports the conclusion as to why no such DPR was filed by the accused persons alongwith the application. As already discussed and demonstrated that the company M/s VMPL in fact never intended to establish any such integrated steel plant at Begusarai, Bihar. This fact also explains as to why even after expiry of 13 months of submitting the initial application no such DPR was submitted by the company and was merely stated to be under appraisal.
132. Moreover it will be also pertinent to mention that merely because such covering letters were recovered by CBI during the course of search operation carried out at the house of A-2 Vikash Patni and the same were placed on record of the present case by CBI does not imply that the authenticity of said documents stands established on record or the same have been accepted to be correct by the prosecution. Since accused persons are placing reliance upon the said documents to rest their plea of defence so the onus to prove CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 134 of 467 the same was upon them only. The facts and circumstances available on record only show that such a document was indeed recovered in the house search of accused Vikash Patni. This fact however does not prove that the documents so recovered contains correct facts only. Accordingly it was for the accused only to prove the correctness of the facts stated therein and especially when he is placing reliance upon the said documents to support his plea of defence.
133. Coming now to another limb of argument put forth by Ld. Defence Counsel that as Ministry of Steel had submitted its recommendations to MOC on the basis of TEFR as was available with it so it is clear that such a TEFR was available with Ministry of Steel. It was thus submitted that as admittedly one copy of applications was sent to Ministry of Steel by MOC only so there is no reason to presume that such a TEFR was not filed alongwith the application submitted to MOC. It was thus submitted that application Ex. P-96 (Colly) (D-8) was thus not a complete document. In this regard reliance was also placed upon the deposition of PW-1 V.S. Rana that as the applications were subsequently shifted from Scope Minar, Laxmi Nagar to MOC office, Shastri Bhawan so it may be possible that while shifting the voluminous applications some documents may have gone missing.
134. Before I advert on to discuss the aforesaid issue I may however again mention that the present case suffers from the vires of dishonest and defective investigation. As shall be evident from my subsequent discussion, no efforts seems to have been made during CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 135 of 467 the course of investigation by the IO as to in what circumstances any such TEFR came to be available with Ministry of Steel. In fact neither any such application of M/s VMPL or even any such TEFR as was allegedly available with Ministry of Steel was collected during the course of investigation. Moreover instead of putting relevant questions in this regard to the concerned witnesses, the IO in the statement u/s 161 Cr.PC of PW-12 N.R. Dash as was recorded during the course of investigation chose to show him a TEFR alongwith the application of M/s VMPL and questioned him as to on what basis various facts were stated in the recommendations of Ministry of Steel which were sent to MOC under his signatures. Admittedly one such TEFR was by then already recovered by the IO during the course of search operation carried out at the premises of the accused persons but strangely enough in the statement u/s 161 Cr.PC of PW-12 N.R. Dash there is no mention as to from where the said TEFR being shown to the witness came into the possession of IO. Even the application shown to the witness was one which was collected from MOC. No explanation has been at all put forth by the IO as to why the application available with Ministry of Steel much less the TEFR as was considered by Ministry of Steel in giving its recommendations was not collected during the course of investigation.
135. The aforesaid fact was required to be mentioned in the statement u/s 161 Cr.PC itself as a bare perusal of statement u/s 161 Cr.PC of Sh. N.R. Dash clearly show that it has been so ambiguously CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 136 of 467 recorded so as to give an impression that the TEFR being shown is the same as is already available with the application of the company M/s VMPL. It is primarily for this reason only that it has been vehemently argued on behalf of the accused persons that it was the same TEFR as was available with Ministry of Steel which was shown to the witness by the IO during the course of investigation.
Since no such application or TEFR was admittedly collected from Ministry of Steel by the IO during the course of investigation so it can not be even remotely presumed that the TEFR available with Ministry of Steel was shown to the witness when his statement u/s 161 Cr.PC was recorded.
136. There is however yet another interesting aspect of the matter. Even if it is believed that a TEFR was indeed available with Ministry of Steel with the set of application as was sent to it by Ministry of Coal then also it is beyond comprehension as to how the said TEFR was relating to the end use project referred in to the application of M/s VMPL.
137. Admittedly the application Ex. P-96 (Colly) (D-8) stated the following particulars about the proposed end use project.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 137 of 467 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 (MW)/ Quantity LINKAGE LINKAGE mtpa mtpa Grade Source .13 MTPA 86.4 F-GRADE MCL 11 EXISTING CAPACITY 12 PROPOSED CAPCITY 1 MTPA 13 ULTIMATE CAPACITY (TOTAL) 1.1 MTPA 14 ROM COAL REQUIREMENT 2.28 MTPA 15 LOCATION (District, State) BEGUSARAI, BIHAR
138. However the TEFR Ex. P-83 (Colly) (D-90) talks of a steel manufacturing project having 4 x 500 TPD sponge iron kilns only [It is the same TEFR which is being referred to by the accused persons and was also allegedly referred to by Ministry of Steel officers while making their recommendations to MOC. This very TEFR was also shown to PW N.R. Dash by IO Insp. Rajbir Singh while recording his statement u/s 161 Cr.PC]. The total capacity of said sponge iron is thus stated to be 65000 TPA only. [Further in the said TEFR the existing capacity of sponge iron plant is stated as 65000 TPA and the expansion under implementation was also stated to be 65000 TPA sponge iron. The TEFR further states the existing capacity to be in West Bengal. As regard proposed end use project at Bihar the capacity in the TEFR under the heading Executive Summary [at page 2 in Ex. P-83 (Colly) (D-90)] was mentioned as under:
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 138 of 467
12 PROPOSED PROJECT AT 4 x 500 TPD Sponge Iron Kilns
Bihar 100 MW Captive Power Plant
2,50,000 TPA Blast Furnace With
Billet Casters.
139. Though I shall be discussing various other aspects relating to the aforesaid details mentioned in the TEFR at a slightly later stage of the present judgment also but apparently, it is beyond any reason or logic as to how the TEFR Ex. P-83 (Colly) D-90 [Admittedly recovered during the course of search operation carried out at the house of accused Vikash Patni] can relate to the proposed end use project mentioned in the application form Ex. P-96 (Colly) (D-8). Nothing has been at all argued or explained in this regard during the course of entire trial on the part of accused persons as to when the capacity of the proposed end used project was mentioned in the application as 1 MTPA then how a TEFR for an end use project of proposed capacity 65000 MTPA can relate to the same. In fact a perusal of the records of the present case shows the most casual nature of functioning on the part of officers of various departments of Government of India be that of MOC or even that of Ministry of Steel. Even in the recommendations sent to MOC by Ministry of Steel under the signatures of PW-12 N. R. Dash vide OM dated 06.12.2007, the recommendations qua M/s VMPL were sent as under:
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 139 of 467 S. Name of the Inter se priority for Project capacity Coal No. company & the applied block Requirement Location Existing Proposed Capacity Total Misc.
Capacity Capacity Remarks
As per the format As per MOS's
norms (to be
commissione
d before Dec,
2010
122 Vikash Metal 1. Rajhara North Existing Proposed capacity :- 1.00 0.6 for Bihar 1.168 Category
& Power Ltd. 2. Moira-Madhujore Capacity:- mtpa at Begusarai, Bihar unit + 0.13 VI
at Begusarai, 3. Andal East 0.13 mtpa at The company has proposed for West
Bihar West Bengal to set up 4x500 TPD sponge Bengal Unit.
iron kilns and is likely to
commissioned by February,
2008.
140. It is beyond comprehension as to in what circumstances despite having noted that the proposed capacity of the plant as mentioned in the application form is 1 MTPA but still the details mentioned in TEFR for a sponge iron plant of 65000 MTPA was considered. Though it can be argued on behalf of Ministry of Steel officers that since in terms of the details mentioned in the TEFR the company M/s VMPL was meeting the criteria (internal guidelines) laid down by Ministry of Steel and accordingly in their recommendations complete details were mentioned for the information of Screening Committee be that of the application form or that of the TEFR. However even if the said explanation is accepted for the sake of arguments to be correct then also the moot question which arises for consideration is whether the said TEFR at all related to the proposed end use project as was mentioned in its application by the company. If at all Ministry of Steel was considering as to whether the given applicant company i.e. M/s VMPL proposes to achieve the desired minimum production level by the outer limit fixed by Ministry of Steel then also it ought to have seen as to whether the TEFR being CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 140 of 467 considered by them is of the same proposed end use project mentioned in the application form by the company or not. At least the TEFR ought to have mentioned the further details as to how and till what time the company intends to achieve its full capacity. No such details are there in the TEFR as the same pertained to a project of 65000 TPA capacity only. [Thus, even if it is presumed that the said TEFR was indeed filed alongwith the application then as the details mentioned in the application form did not co-relate in any manner with the annexure i.e. TEFR allegedly filed by the company, so this fact ought to have been also highlighted by Ministry of Steel in its comments sent to MOC.] Thus it is clear beyond shadows of all reasonable doubts that the TEFR being referred to by the accused persons could not have been the TEFR pertaining to the end use project mentioned in the application Ex. P-96 (Colly) (D-8), if at all any such TEFR was filed. In fact as shall be discussed at a later stage also that even the MOC officers in the Screening Committee or even later on in MOC itself also did not choose to mention the said fact and for reasons best known to them chose to ignore or conceal the said fact.
141. Thus in view of the apparent and inherent contradictions in the claims made by the accused persons, this Court has all the reasons to believe that no such TEFR was at all filed alongwith the application. In fact at this stage, I may also mention that even otherwise a TEFR is a materially different document from a " Project Report" as was required to be filed by the company in terms of the CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 141 of 467 guidelines issued by MOC.
142. A Techno Economic Feasibility Report [TEFR] determines the technical feasibility and financial viability of the project. It assess the risks associated with the project and enumerate imminent actions that are required to be taken.
On the other hand a project report is a document which gives an account of the project proposal to ascertain the prospects of the proposed plan/activity. The project report contains detailed information about land building required, manufacturing capacity per annum and the manufacturing process. Similarly Detailed Project Report (DPR) is prepared for the investment decision making approval but also for execution of the project and for preparation of plan. Detailed project report is a complete document for investment decision-making, approval and planning.
Thus the mere filing of TEFR would not have even otherwise fulfilled the requisite conditions of MOC guidelines which mandated that alongwith the application the project report be also filed.
143. In fact it has also been argued by Ld. Counsels for the accused persons that in terms of the guidelines issued by MOC, soft copy of the details mentioned in the application form were also provided in a CD. It has been submitted by Ld. Counsel for A-2 Vikash Patni that the said CD was admittedly available with CMPDIL and the same also shows details of all documents filed alongwith the CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 142 of 467 application.
However as per documents available in D-44 i.e. Ex. P- 37 (Colly) [Admitted to be genuine u/s 294 Cr.PC by accused Vikash Patni himself], the said data available in the CD was also compiled in a database by CMPDIL. In the said database also as regard the status of DPR it is specifically mentioned that no such DPR is available. The aforesaid record of CMPDIL thus again goes to support the conclusion that no such detailed project report (DPR) was at all filed alongwith the application by the company M/s VMPL. It thus can not be presumed even for the sake of arguments that the application Ex. P-96 (Colly) (D-8) relied upon by prosecution is an incomplete document. The said argument of Ld. Counsels for A-2 Vikash Patni and A-3 Anand Mallick thus does not hold ground at all.
144. At this stage, it would be also pertinent to mention that even in its communication dated 12.08.2006 [Available at page 3 in Ex. P- 81 (Colly) (D-8)], Department of Industries, Government of Bihar had while conveying to A-3 Anand Mallick, the approval of the proposal for setting an integrated steel plant had also informed that no project report has been submitted.
145. It is in the light of aforesaid discussion, if the other arguments of Ld. Counsel for accused Vikash Patni and Anand Mallick are seen that alongwith the application the audited annual accounts/reports of last three years (5 copies) of Impex Group of companies were also filed then I may again state that the said submission is even contrary CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 143 of 467 to the records relied upon by accused persons themselves. Admittedly in the application Ex. P-96 (Colly) (D-8) or even in the covering letter as has been relied upon by the accused persons there is completely no mention of Impex Group of companies being in any manner related to M/s VMPL. Even in the Memorandum of Association and Articles of Association of M/s VMPL as were annexed with the application Ex. P-96 (Colly) (D-8) there is no mention at all of Impex Group of Companies. In these circumstances it is again beyond comprehension as to how it can be presumed even for the sake of arguments that any such audited annual accounts/reports of Impex Group of Companies of which M/s VMPL is stated to be a group company was also filed alongwith the application. In fact the guidelines issued by MOC for the purposes of ascertaining interse priority amongst the competing applicant companies required details in respect of finances etc qua the promoter companies only in the cases of joint venture companies and not otherwise. Thus when M/s VMPL was never stated to be a joint venture company so the question of filing of details of finances of its promoter companies did not arise. Similarly when the application was also completely silent that M/s VMPL is a group company of M/s Impex Group of Companies so the question of filing of balance sheets of Impex Group alongwith the application did not arise.
146. Thus it is clear that it was only the audited annual reports of M/s VMPL which were annexed with the application and had there been another set of audited annual accounts/reports of Impex Group CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 144 of 467 of Companies annexed then the same would have been separately mentioned in the covering letter itself as has been relied upon by the accused persons themselves. Moreover even if it is presumed for the sake of arguments that the audited annual accounts/reports of Impex Group of Companies were filed alognwith the application then also the said reports could not have been considered or taken into consideration at all when there was no mention at all in the application that applicant company M/s VMPL was a SPV/JV or a group company of Impex Group of Companies. Thus the said reports even if filed were completely extraneous documents in so far as the claims/figures mentioned in the application form were concerned.
147. Accused persons have thus clearly failed in establishing availability of any such document(s) even for the purposes of preponderance of probabilities. On the other hand from the evidence led by the prosecution coupled with the documents proved on record it stands proved beyond shadows of all reasonable doubts that neither the project report nor the relevant documents of financial statement of applicant company A-1 M/s VMPL in support of the claims made in the application were filed on record alongwith its application Ex. P-96 (Colly) (D-8) by company M/s VMPL. It thus stands proved that the application Ex. P-96 (Colly) (D-8) submitted to MOC on behalf of A-1 M/s VMPL was an incomplete application in terms of the guidelines governing allocation of captive coal blocks issued by MOC and was thus liable to be rejected in MOC itself and was thus not to be processed further much less sending copies CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 145 of 467 thereof to Ministry of Steel, State Government of West Bengal, Bihar or to CMPDIL etc. The said application accordingly ought not to have been even put up before the Screening Committee for its consideration. [However at a later stage of the judgment while discussing the role of accused public servants I shall be again revisiting this aspect while discussing as to whether applications were at all checked in MOC for their completeness or eligibility or not.] F (iii) Whether the company M/s VMPL mentioned inflated figures of financial strength in its application.
148. In the aforesaid circumstances the entire issue boils down to only one proposition i.e. whether the details of turnover, profit and net-worth as were mentioned in the application in column 8, 9 and 10 tallied with the details of finances as were mentioned in the audited annual accounts/reports of M/s VMPL filed alongwith the application or not.
In this regard it is an undisputed case of prosecution that these figures mentioned in the application did not tally with the details of finances as were mentioned in the audited annual accounts/reports of M/s VMPL. It is the case of accused persons that the figures of financial strength as were mentioned in the application were that of Impex Group of Companies and not only of M/s VMPL.
149. Thus in view of my aforesaid discussion it stands well proved that the figures of turnover, profit and net-worth as were mentioned in CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 146 of 467 the application were highly inflated and also that neither they correlated with details mentioned in the annexures to the application nor were justifiable in terms of the guidelines issued by MOC governing allocation of captive coal blocks.
150. The sum and substance of the aforesaid discussion as regard non-filing of detailed project report or wrong mentioning of figures of financial strength of the applicant company in the application is that the company M/s VMPL dishonestly represented to MOC, Government of India that all the requisite documents have been filed alongwith the application. Similarly the company M/s VMPL misrepresented about its financial strength by mentioning highly inflated figures of its turnover, profit and net-worth and thereby making Screening Committee, MOC to believe in its higher financial capability to establish the proposed end use project. [I am not at all entering into the issue as to whether the figures of financial strength mentioned in the application tallied with that of Impex Group of Companies or not, since the same will be completely an exercise in futility especially in view of my aforesaid discussion].
F (iv) Whether A-1 M/s VMPL, A-2 Vikash Patni and A-3 Anand Mallick were aware of the factum of cancellation of allotment of 300 acres of land to A-1 M/s VMPL by BIADA.
151. There is yet another misrepresentation made by applicant company M/s VMPL before the Screening Committee. As earlier also mentioned that in the application Ex. P-96 (Colly) (D-8) submitted to MOC on 12.01.2007, it was claimed by the company that it has been CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 147 of 467 allotted 300 acres of land by BIADA. The said claim was again reiterated before the Screening Committee in the feed-back form submitted on 07.02.08. However as already discussed and demonstrated that the said allotment of 300 acres of land in favour of M/s VMPL was canceled by BIADA vide order dated 21.09.07 after the company M/s VMPL failed to deposit the cost of land and also failed to construct the boundary over the land.
152. The accused persons i.e. A-2 Vikash Patni and A-3 Anand Mallick have however claimed that at the time of presentation before the Screening Committee on 07.02.2008 they were not aware about any such order of cancellation of allotment of land issued by BIADA for they never received the same. As regard recovery of cancellation order dated 21.09.07 from their premises in the search operations carried out by CBI during the course of investigation, it was claimed that when during the course of preliminary enquiry registered by CBI, enquiry was made from them regarding this issue then the copy of order dated 21.09.07 was obtained by them from BIADA office and a copy thereof was supplied to CBI while retaining one copy with them.
My Discussion
153. In this regard I may state that I have already discussed and demonstrated at length in the earlier part of the judgment that regular correspondence was being undertaken by company M/s VMPL with BIADA seeking extension of time for depositing the cost of land and for time to construct the boundary wall. One such communication CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 148 of 467 undertaken by company M/s VMPL with BIADA was dated 28.06.2007, wherein extension of time was sought from 30.06.07 to 31.08.07. Thus as earlier also mentioned that it can not be believed even for the sake of arguments that the company M/s VMPL despite undertaking regular and repeated correspondence with BIADA so that allotment of land in its favour may not be cancelled suddenly stopped interacting with BIADA and did not care to even ascertain as to whether their request for extension of time to deposit the cost of land or request to extend the time for construction of boundary wall was accepted by BIADA or not.
154. Moreover, prosecution in order to prove its case that order dated 21.09.07 issued by BIADA for cancellation of allotment of land in favour of company M/s VMPL was indeed received by the accused persons examined PW-2 Anil Kumar Thakur, the then Executive Director, BIADA under whose signatures the order dated 21.09.07 for cancellation of allotment of land was issued. It also examined PW-4 Devanand Dutta, the official of BIADA who was posted in dispatch section of Dharbhanga office of BIADA and had actually dispatched the order dated 21.09.07 to M/s VMPL by registered post.
155. While PW-2 Anil Kumar Thakur proved various correspondence which were undertaken between BIADA and company M/s VMPL regarding allotment of land and thereafter BIADA calling upon the company to deposit the cost of land and also to construct the boundary wall. He also proved the order dated 21.09.07 Ex. PW 2/G issued to M/s VMPL under his own signatures whereby CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 149 of 467 the land allotted in favour of M/s VMPL was cancelled. Strangely enough no suggestion was even put to the said witness either on behalf of A-2 Vikash Patni or A-3 Anand Mallick that no such letter was ever received by them or by the company M/s VMPL. It was also not even suggested to him that the registered office of M/s VMPL where order dated 21.09.07 was allegedly sent was under renovation during the said period as is being now claimed by the accused persons in the present trial.
156. Similarly PW-4 Devanand Dutta deposed that order dated 21.09.07 was sent to M/s VMPL at the address "M/s VMPL, Sh. Vikash Patni, Managing Director, 35-Chittaranjan Avenue, 6 th Floor, Kolkata-700012" through registered post by him after making necessary entry in the dispatch register. He further stated that the relevant postal receipt issued in this regard by Ranipur Post office was also duly pasted in the register by him. In his cross-examination he also deposed that the said letter was not received back as undelivered. However once again no suggestion was even put to the said witness either on behalf of A-2 Vikash Patni or A-3 Anand Mallick that no such letter was ever received by the company. In fact the correctness or veracity of the dispatch register Ex. PW 4/A-1 or that of his deposition was even not questioned.
157. Moreover reference in this regard can even be made to Section 114 Indian Evidence Act, 1872. The said provision provides for presumption of existence of certain facts. It provides that the Court may presume the existence of any fact which it thinks likely to have CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 150 of 467 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. Illustration (f) to the section read as under:
"(f) That the common course of business has been followed in particular cases;"
158. It is however further mentioned in the illustration that the Court shall also have regard to such facts as the following, in considering whether such maxims do or do not apply to the particular case before it: [As regard illustration (f) reproduced above it is mentioned as under] "As to illustration (f) - The question is, whether a letter was received. It is shown to have been posted, but the usual course of the post was interrupted by disturbances."
159. Thus though the presumption of delivery of a letter by registered post is rebutable but to rebut the same is the duty of accused. Though the accused may not be required to rebut the said presumption beyond reasonable doubts and it will be sufficient if even by preponderance of probabilities he is able to demonstrate that no such letter was received by him. Unfortunately in the present case except for making a bald statement that no such letter was delivered at the registered office of the company M/s VMPL no attempt worth the name has been made to show as to in what circumstances no such letter could have been delivered at the said given address of the company. Though it was submitted that the registered office of the company was under renovation and thus no document could have CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 151 of 467 been delivered over there as the company was not operating from the said address at the given point of time but I may once again state that nothing has been brought on record which could substantiate the aforesaid claim even for the sake of preponderance of probabilities.
160. In this regard it would be also worthwhile to refer to an application of A-1 M/s VMPL as was initially submitted to BIADA for seeking allotment of 200 acres of land. The said application dated 24.09.2006 is available from page 213-216 in file Ex. P-3 (Colly) (D-4) and was submitted under the signatures of A-2 Vikash Patni. In the said application the address of correspondence i.e. "Dak Pata" is mentioned as "VIKAS METAL & POWER LTD. 35, CHITTRANJAN AVENUE, 6TH FLOOR KOLKATA-700012". Again in the personal biodata of Vikash Patni as was enclosed with the application the address of correspondence i.e. "Patrachaar Ka Pata" is mentioned as "Vikas Patni, 35, Chittranjan Avenue, 6th Floor KOLKATA, West Bengal- 700012". Moreover it is not the case of accused persons that subsequent to submission of aforesaid application for seeking allotment of land any other correspondence was made to BIADA by them intimating about the change of the said correspondence address. Even in correspondence made by company M/s VMPL with BIADA and as have been referred to in detail in the earlier part of the judgment the address mentioned on the letter heads of the company is the same address as is referred to above. Similarly various correspondence which were also sent to company M/s VMPL by BIADA were sent at the same address (Earlier referred to in detail).
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 152 of 467 All the said correspondence were also duly responded to on behalf of A-1 M/s VMPL.
161. At this stage it would be also appropriate to have a brief glance over Section 27 of General Clauses Act. The same read as under:
"27. Meaning of service by post -- Where any 2[Central Act] or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression "serve" or either of the expressions "give" or "send" or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."
162. In these circumstances it thus can not be even presumed for the sake of arguments that order of cancellation of allotment of land dated 21.09.2007 sent at the same address to M/s VMPL was not delivered or was not received by the accused persons.
163. Reference in this regard can also be made to the case(s) C.C. Alavi Haji Vs. Palapetty Muhammad and Anr. (2007) 6 SCC 555 and M/s Madan & Co. Vs. Wazir Jaivir Chand (1989) 1 SCC
264.
164. Thus in view of my aforesaid discussion, this Court is well justified in concluding that order dated 21.09.2007 whereby allotment of 300 acres of land in favour of M/s VMPL was cancelled by BIADA was duly delivered to the company. Thus keeping in view the overall CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 153 of 467 facts amd circumstances as already discussed, it is clear that the company and its officers and directors i.e. A-2 Vikash Patni who was the Managing Director and A-3 Anand Mallick, who was the Business Development Manager of the company were well aware of the factum of cancellation of allotment of 300 acres of land by BIADA upon receipt of cancellation order dated 21.09.2007 before they came to make presentation before the Screening Committee on 07.02.2008.
165. The claim of A-2 Vikash Patni and A-3 Anand Mallick that copy of cancellation order dated 27.09.2007 was recovered from their house search by CBI during the course of investigation only because they had collected it from BIADA during the course of preliminary enquiry only, does not inspire confidence even for the sake of preponderance of probabilities.
F (v) Whether Ministry of Steel relied upon the aforesaid highly inflated claims about the financial strength and capacity of the end use project made by the company M/s VMPL in its application.
166. The next question which is required to be considered is whether the claims made by company M/s VMPL as regard its financial strength i.e. turnover, profit and net-worth or the claim made qua its existing and proposed capacity were considered by Ministry of Steel in submitting its recommendation/comments/views to MOC.
167. 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 CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 154 of 467 steel considered the figures of financial strength or the claims regarding existing and proposed production capacity of the end use project as were made by the applicant companies in their applications, it will be worthwhile to first have a glance over the guidelines, Ex. PW 12/A (colly) [available at page 289-290 in file Ex. P-6 (Colly) (D-10)] so framed by Ministry of Steel.
"Guidelines to be followed for the consideration of allotment of Coal Block 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 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.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 155 of 467 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)
168. Thus from a bare perusal of the aforesaid guidelines it is clear that the eligibility criteria so devised by Ministry of Steel clearly stated that financial status of the company and the extent of financial tie-up beside a minimum of production capacity to be achieved by December 2010 shall be the relevant criteria of eligibility of applicant companies before they are put under one or the other categories so CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 156 of 467 devised by Ministry of Steel. The existing and proposed production capacity of the end use plant was thus also an important criteria adopted by Ministry of Steel in carving out various categories in which the applicant companies were categorised.
169. PW-12 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 the companies under one or the other categories the information about the existing or proposed capacity of the companies was considered as per the details mentioned in their applications. In fact on the top of office memorandum dated 06.12.2005 Ex. PW 1/H- 5 (Colly) (D-13) vide which recommendations of Ministry of Steel were sent to MOC, the following words were mentioned:
"APPLICANTS FOR CAPTIVE COAL BLOCKS (As per information provided in application form)"
170. In his cross examination as was conducted by Ld. Counsel for A-5 K.S. Kropha 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 was a relevant factor. He also stated that capacity of production of the end use project of the company was also a relevant criteria as was followed by Ministry of Steel.
171. In fact in the office memorandum dated 06.12.07, EX. PW- 1/H-5 (colly) in file Ex. P-9 (Colly) (D-13) vide which the status of various applicant companies qua different categories as were devised CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 157 of 467 by Ministry of Steel was communicated to MOC it was specifically stated 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."
172. 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-1/L (colly) in file Ex. P-7 (Colly) (D-11) 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.
173. It has been, however, submitted by Ld. Defence Counsels that PW 12 N.R. Dash in his cross-examination stated that on the basis of net worth and financial capacity Ministry of Steel did not CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 158 of 467 declare any applicant company to be not eligible for being considered under one or the other category. It was submitted that witness in fact thereafter volunteered that Ministry of Steel had not examined the net worth or financial capacity of the companies and that while putting up various applicant companies under different categories only the existing capacity or the proposed capacity of the applicant companies was considered.
174. In this regard I may state that the internal guidelines framed by Ministry of Steel for its own use for examining and assessing the claims of various applicant companies clearly talked of financial status of the companies and extent of financial tie up. It is correct that as per the said guidelines and as also stated by PW 12 N.R. Dash initially the applicant companies were to be screened qua eligibility criteria mentioned at the beginning of the said guidelines and thereafter depending upon the existing and proposed capacity of the end use plant of the applicant companies they were to be categorized under one or the other categories. Thus if the financial strength of the applicant companies was not considered by the Ministry of Steel then it can only be stated that the Ministry of Steel also ought to have laid down same eligibility criteria qua the strength of the applicant companies and by not laying down any such criteria they too violated the very spirit of the guidelines so laid down by Ministry of Steel. As shall be discussed at a subsequent stage also that even the working of Ministry of Steel with respect to coal block allocation matters was also not found to be above board. However, in this regard it would be CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 159 of 467 worthwhile to mention that even in the minutes Ex. PW 1/L (Colly) (D-
11) of 36th Screening Committee meeting, it is mentioned that Joint Secretary (Steel) Sh. U.P. Singh at the initial stage of the proceedings stated that the blocks be allotted to those companies which are genuine, technically and financially sound to take up the project and where capacity addition is expected to accomplish by the year 2010.
175. Thus from the aforesaid comments made by Joint Secretary (Steel) it is clear that the financial strength of the applicant companies was indeed a relevant criteria for Ministry of Steel beside also the existing and proposed capacity of the end use project as was mentioned by the applicant companies in their applications.
176. Thus from the aforesaid circumstances it is crystal clear that both financial status of the applicant companies as well as the capacity of the end use project were relevant factors even to Ministry of Steel while making its recommendations qua various applicant companies to MOC.
F (vi) Whether the data furnished by A-1 M/s VMPL in its application and the feed-back form was considered by the Screening Committee, MOC.
177. 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 CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 160 of 467 applicant company and also the track record and financial strength of the company shall be relevant factors.
178. However apart from the said guidelines a perusal of the minutes of 36th Screening Committee also clearly show that the information as was submitted by the applicant companies in their application form was duly 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.
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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 CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 161 of 467 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:-
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10 . . . .
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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: The capacity indicated in the application form; The capacity indicated in the MOU entered into between the applicant company and the State Govt. concerned, wherever applicable;
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 CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 162 of 467 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:
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(Emphasis supplied by me)
179. Thus from the guidelines issued by MOC and the minutes of 36th Screening Committee meeting as have been reproduced above, 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 beside also considering the presentation made by the companies before the Screening Committee and other information furnished by the companies.
F (vii) Whether issuance of letter of allotment of coal block amounted to delivery of property resulting in wrongful gain to A-1 M/s VMPL.
180. 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 CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 163 of 467 made in its orders dated 25.08.14, passed in the case Manohar Lal Sharma 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 Section 3(3)(a) of the CMN Act.
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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 CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 164 of 467 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 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 CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 165 of 467 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."
(Emphasis supplied by me)
181. Thus in view of the aforesaid observations of Hon'ble Supreme Court, the allocation letter dated 06.10.2009 Ex. PW-1/M-9 (D-14) issued by MOC in favour of accused company M/s VMPL qua allotment of Moira-Madhujore coal block clearly amounts to delivery of property i.e. rights qua valuable nationalized natural resources 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.
182. It was however also argued by Ld. Counsels for A-2 Vikash Patni that as admitted by the prosecution witnesses there was a dispute over the boundaries of Moira-Madhujore coal block as the land thereof was acquired by Government of West Bengal for setting up an Aerotropolis Airport Project. The deposition of DW-3 Ms. Saswati Poddar and DW-4 Arun Kumar Dhar were also referred to in this regard beside referring to proceedings in the file of MOC where the said issue was extensively dealt with. It was also submitted by Ld. Counsel that in fact no coal was at all extracted from the said coal block and thus no wrongful loss was caused to anyone.
183. In this regard, I may state that the issue regarding overlapping of boundaries of Moira-Madhujore coal block with that of Aerotropolis Airport Project was indeed discussed in MOC but as is CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 166 of 467 evident from the files of MOC that the said issue was duly settled over there by excluding certain area of Moira-Madhujore coal block and in lieu thereof by adding some addiontal area to it. The said modifications of the boundaries of Moira-Madhujore coal block was subsequently also approved by the Prime Minister as Minister of Coal while approving the recommendations made by 36 th Screening Committee [Reference in this regard may be made to ID note dated 21.07.2008 Ex. PW 1/M-3 (D-13) of Sh. Ashish Gupta, Director PMO vide which approval of recommendations of 36 th Screening Committee by Prime Minister as Minister of Coal was conveyed to MOC.] Moreover neither DW-3 Ms. Saswati Poddar nor DW-4 Arun Kumar Dhar stated anything which could show that any land falling under Moira-Madhujore coal block was acquired by Government of West Bengal for Aerotropolis Airport Project. Apart from the aforesaid facts and circumstances it will be worthwhile to point out that the very issuance of allocation letter in favour of A-1 M/s VMPL by MOC in fact amounted to delivery of property. It is not the case of accused persons that upon finding that it was not feasible to mine the said Moira-Madhujore coal block on account of land falling under it having been acquired by Government of West Bengal for the Aerotropolis Airport Project, they surrendered the said allotment of coal block back to MOC. In this regard it would be also worthwhile to refer to certain other observations of Hon'ble Supreme Court in the case Manohar Lal Sharma case (Supra) wherein it was stated 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 CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 167 of 467 caused to the applicant companies. The right to obtain prospecting license or mining lease of the coal mine was admittedly dependent upon the issuance of allocation letter only. Thus the allocation letter conferred a valuable right in favour of the allottee i.e. A-1 M/s VMPL and was certainly a property within the meaning of the offence of cheating.
F (viii) Whether the dishonest misrepresentation continued before Prime Minister as Minister of Coal and thereby cheating MOC, Government of India.
184. 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.
185. 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 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 CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 168 of 467 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 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.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 169 of 467
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 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 CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 170 of 467 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)
186. Thus on similar lines in the present case also, it is clear that the dishonest misrepresentation as were made by the accused persons before the Screening Committee continued even before Prime Minister as Minister of Coal also 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 CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 171 of 467 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.)
187. At this stage before proceeding further it will be now worthwhile to discuss the role played by the three accused persons i.e. A-1 M/s VMPL, A-2 Vikash Patni and A-3 Anand Mallick.
I shall be however first discussing the role played by A-3 Anand Mallick.
F (ix) Role of A-3 Anand Mallick.
188. It has been the consistent stand of accused Anand Mallick that he merely acted as an Authorized Representative of company M/s VMPL on account of the fact that he was a resident of Delhi NCR area and as the company M/s VMPL was based in Kolkata so it could not have deputed an employee from Kolkata to interact with MOC on every ocassion whenever need arose. It was also submitted that the application forms or the feed back form submitted by accused Anand Mallick with MOC were already filled up in Kolkata before he received them in Delhi. As regard his presence before the Screening CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 172 of 467 Committee at the time of presentation on 07.02.08, it was submitted that he accompanied co-accused Vikash Patni and PW-15 Ranjan Barma only because he was the authorised representative of the company M/s VMPL and his presence was required as per the guidelines issued by MOC governing allocation of captive coal blocks.
189. It has also been argued that no other evidence has been brought on record by the prosecution which could show that accused Anand Mallick in any manner ever conspired with other accused persons so as to procure allocation of a captive coal block in favour of company M/s VMPL from MOC or that accused Anand Mallick was aware of any mis-representation made in the application form on behalf of M/s VMPL or even in the feed-back form or in the presentation made before the Screening Committee. It has also been submitted that accused Anand Mallick had no knowledge of the fact that allotment of 300 acres of land in favour of M/s VMPL has since been canceled by BIADA. As regard recovery of copy of cancellation letter qua allotment of land from his possession during the course of search operation carried out by CBI, it has been submitted that when during the course of preliminary enquiry registered by CBI this fact came to the knowledge of accused Anand Mallick then he himself had obtained the copy of the said cancellation order from the office of BIADA and provided it to IO and in this process only the copy of the said order was available with him which was subsequently recovered by CBI during the course of search operation. It has thus been submitted that as prosecution has clearly failed in proving that CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 173 of 467 accused Anand Mallick had any malafide intention in merely signing the application form or feed-back form so the charge of cheating or that of criminal conspiracy cannot hold ground against him.
My Discussion
190. At the outset, I may state that none of the aforesaid contentions of accused Anand Mallick hold ground at all. As has been discussed and demonstrated above all the correspondence on behalf of company M/s VMPL with different departments of Government of Bihar including BIADA was primarily undertaken by accused Anand Mallick under his own signatures only. In these circumstances the averment that accused Anand Mallick was appointed as an Authorized Representative by company M/s VMPL only because he was available in Delhi and the company was based in Kolkata, does not hold ground at all. A-3 Anand Mallick clearly had played an active role as Business Development Manager of the company M/s VMPL, not only in the allotment of land to M/s VMPL by BIADA but subsequently also when BIADA initiated the proceedings to cancel the said allotment of land. Thus the active role played by accused Anand Mallick in the affairs of M/s VMPL relating to various aspects towards establishing its end use plant and also in the process of procuring allocation of a captive coal block from MOC in favour of A-1 M/s VMPL stands well proved on record.
191. Moreover, accused Anand Mallick admittedly also appeared before the Screening Committee at the time of presentation and CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 174 of 467 submitted the feed-back form on behalf of the company. As earlier also discussed accused Anand Mallick was in fact the signatory of various communications vide which BIADA was informed that the company M/s VMPL no longer intends to establish the proposed integrated steel plant and in its place intends to establish a 2000 MW power plant. Thus the claim of accused Anand Mallick that he was not aware that any false fact has been mentioned either in the feed-back form or in the presentation made before the Screening Committee also does not hold ground. Despite knowing fully well that the company has since dropped the idea of establishing the integrated steel plant and has rather decided to establish a 2000 MW power plant, the feed-back form was still submitted to Screening Committee by accused Anand Mallick under his own signatures stating that steps are being taken to establish the integrated steel plant. Similarly, presentation was also made in the presence of accused Anand Mallick on behalf of company M/s VMPL that it is proceeding ahead with establishing the proposed integrated steel plant even though he knew fully well that company M/s VMPL do not intend to establish any such plant.
192. Moreover, irrespective of the fact as to whether accused Anand Mallick had any knowledge or not that figures of turnover, profit and net-worth of company M/s VMPL have been wrongly mentioned in the application form, but he certainly cannot claim ignorance about the total number of annexures or the descriptions thereof filed along with the application form as was submitted under CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 175 of 467 his signatures. As already discussed and demonstrated above, no project report was filed along with the application even though on the alleged covering letter of the application, it was mentioned that project report has been filed and receipt of application was accordingly obtained on the said covering letter from the officials posted at Scope Minar, Laxmi Nagar who were receiving the applications. This act again goes to establish the very malafide intention from the beginning on the part of accused persons in misleading MOC, Government of India so as to deceive it and thereby induce it to allocate a captive coal block in favour of company M/s VMPL.
193. Moreover the claim of accused Anand Mallick that copy of cancellation order of 300 acres of land issued by BIADA was recovered from his possession during the course of search operation only because during the course of preliminary enquiry registered by CBI he himself had procured copy of the said order from BIADA and had supplied it to CBI while also retaining a copy thereof in the said process does not per se appears to be carrying any force. The reasons for the same are ample and clear.
From the various communications undertaken on behalf of company M/s VMPL with BIADA as have been reproduced above and have also been discussed in detail, it is clear that company M/s VMPL was well aware that the allotment of land in their favour is liable to be cancelled by BIADA as company has failed to comply with the twin conditions i.e. making payment for the land by 30.06.2007 CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 176 of 467 and to also construct boundary wall around the land and failing which allotment of land will be canceled. Receipt of communication dated 07.05.2007 in this regard from BIADA has not been disputed by the accused persons. Subsequently, vide another communication dated 15.06.2007 whose receipt has also not been disputed on behalf of the company, it was clearly specified by BIADA that as no steps have been taken either to make the payment of the land or to construct the boundary wall and which conditions were to be fulfilled by 30.06.2007 so it appears that company was not inclined to establish the proposed project at the given land and thus the company was asked as to why the allotment of land should not be deemed to have come to an end. In fact, the company M/s VMPL had thereafter responded to BIADA vide another communication dated 28.06.2007 under the signatures of accused Anand Mallick only seeking extension of time to make payment and to construct boundary wall till 31.08.2007. However, the cancellation order issued by BIADA on 21.09.2007 further shows that even till 31.08.2007 no such steps were taken by the company i.e. either to make the payment of the land or to construct the boundary wall. Admittedly no further extension of time in this regard was even sought by the company M/s VMPL from BIADA.
194. The aforesaid circumstances thus clearly shows that matter in this regard was being regularly followed up by the company M/s VMPL with BIADA and it thus cannot be presumed even for the sake of arguments that after 28.06.2007 company M/s VMPL stopped pursuing the matter with BIADA. The issue that the letter dated CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 177 of 467 21.09.07 qua cancellation of allotment of land was sent by BIADA to the registered office of company by registered post has also been already dealt by me. It has come in the evidence of PW 4 Sh. Devanand Dutta, Official of BIADA that after the said letter was posted in the routine course of their duty, the same was not received back. Nothing has been shown by the accused persons which could even remotely suggest that the said letter was never delivered at the registered office of company M/s VMPL. More so all the communications sent by BIADA prior to order dated 21.09.07 were also at the same address and it has not been disputed at all that any such communication was not received by them. In fact all such correspondence were duly responded to by the company. Thus in these circumstances it can not be presumed even for the sake of arguments that order dated 21.09.07 was not delivered at the office address of company A-1 M/s VMPL.
195. No evidence has even been brought on record by accused Anand Mallick to show that during the course of preliminary enquiry he had gone to the office of BIADA to collect the copy of said cancellation order to be supplied to the Enquiry Officer. Moreover, even if it is presumed that such a copy of letter was supplied by accused Anand Mallick to the Enquiry Officer, who was conducting preliminary enquiry then also this fact does not show that the said letter was earlier not received by accused Anand Mallick or was not to his knowledge in the year 2007-08.
196. In view of my aforesaid discussion, I am thus of the CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 178 of 467 considered opinion that prosecution has been completely successful in proving various overt acts on the part of accused Anand Mallick to show that not only he was actively involved in the affairs of company M/s VMPL especially as regard the coal block allocation process but he too was having the malafide intention right from the beginning so as to mislead MOC, Government of India so as to procure allocation of a captive coal block in favour of company M/s VMPL.
F (x) Role played by A-2 Vikash Patni
197. As regard the role played by A-2 Vikash Patni, Ld. Counsel Dr. Sushil Kumar Gupta vehemently argued that in the facts and circumstances of the case, no offence whatsoever is made out against any of the accused persons much less against A-2 Vikash Patni. It was submitted that A-2 Vikash Patni had no role to play in the entire matter and keeping in view the principle of "alter ego" as was explained by Hon'ble Supreme Court in the case Sunil Bharti Mittal Vs. Central Bureau of Investigation, (2015) 4 SCC 609, no liability of any nature whatsoever can be attributed upon him. It was also argued by Ld. Defence Counsel that prosecution has miserably failed to prove that application of A-1 M/s VMPL was incomplete in any manner and also that the figures of turnover, profit or net-worth mentioned in the application were wrong. It was submitted that during the course of trial, it has been established on record by the accused persons that document Ex. P-96 (Colly) (D-8) i.e. the application of M/s VMPL as has been produced and relied upon by CBI is not a complete document and thus no conclusion much less any adverse CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 179 of 467 inference can be drawn against the accused persons on the basis of such an incomplete document. It was also submitted that admittedly as per the case of prosecution itself the application in question was submitted to MOC under the signatures of A-3 Anand Mallick who was the Business Development Manager of the company. It was further stated that A-2 Vikash Patni was merely looking after the plant operation of the company at Purulia, West Bengal and thus had no role to play in the day to day working of the company. Even as regard the presentation made before the Screening Committee on 07.02.2018, it was submitted that A-2 Vikash Patni had merely accompanied PW-15 Sh. Ranjan Barma to the Screening Committee meeting who admittedly had made the presentation and at that time A-3 Anand Mallick, the authorised representative of the company was duly present. It was thus submitted by Ld. Defence Counsel that in the absence of any overt or covert act on the part of A-2 Vikash Patni, no liability of any nature whatsoever can be attributed upon him.
My Discussion
198. At the outset, I may state that the issues relating to non-filing of project report alongwith the application or the audited annual accounts/reports of Impex Group of Companies alongwith the application submitted to MOC on 12.01.2007 have already been dealt with by me in the earlier part of present judgement. It has also been concluded that not only the application of M/s VMPL as was submitted to MOC was incomplete in terms of the guidelines issued by MOC governing allocation of captive coal blocks but even the CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 180 of 467 figures of turnover, profit and net-worth mentioned in the application did not tally with the balance sheets of M/s VMPL which were annexed with the application. It has also been discussed at length that in the application it was no where disclosed that applicant company M/s VMPL was either a SPV or a group company of Impex Group of Companies. It has also been discussed that in the feed- back form submitted under the signatures of A-3 Anand Mallick at the time of presentation before the Screening Committee, the factum of allocation of 300 acres of land by Government of Bihar was wrongly mentioned as by that time the said allotment of land was already cancelled by BIADA. It has also been concluded that the company had knowledge that vide order dated 21.09.07 the allotment of 300 acres of land in its favour has since been canceled by BIADA. In these circumstances, I do not intend to revisit those issues over here again and I propose to confine my discussion to the role played by A-2 Vikash Patni only.
199. As regard the concept of vicarious liability, I may state that Ld. Counsel for A-2 Vikash Patni is certainly right that the Managing Director of a Company can not be simplicitor held liable for any acts committed by the company or any of its officers unless evidence of some overt or covert act attributable to the said Managing Director comes on record. In these circumstances what is now required to be seen is as to whether prosecution has been successful in proving on record any such overt or covert act attributable to A-2 Vikash Patni which may make him liable for any of the offence committed by A-1 CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 181 of 467 M/s VMPL or A-3 Anand Mallick, the Business Development Manager of the company.
200. In this regard it would be worthwhile to refer to an application dated 24.08.2006 submitted on behalf of company M/s VMPL to BIADA seeking allocation of 200 acres of land for its integrated steel plant. The said application as is available from page 213-216 in file Ex. P-3 (Colly) (D-4) was admittedly submitted under the signatures of Vikash Patni himself. It is pursuant to the said application only that 200 acres of land was initially allotted by BIADA in district Begusarai Bihar. Subsequently on another request of company M/s VMPL though submitted under the signatures of A-3 Anand Mallick another 100 acres of land was allotted to the company by BIADA. Thereafter all the subsequent correspondence which were undertaken by BIADA with the company M/s VMPL were also addressed to Vikash Patni, the Managing Director of the company. The said communications were sent at the same address which was furnished by A-2 Vikash Patni in his initial application dated 24.08.2006 and the same were duly responded to by the company. A-3 Anand Mallick had thereafter made various correspondence with BIADA on behalf of M/s VMPL under his signatures. Thus from the aforesaid circumstances, it is clear that A-2 Vikash Patni himself was actively involved in the allotment of land in favour of company M/s VMPL from BIADA. Apart from the aforesaid circumstances we have also on record the documents recovered during the course of search operation from the house of Vikash Patni. The said documents contains copies of CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 182 of 467 various press clippings. All the said documents have been admitted to be genuine u/s 294 Cr.PC by A-2 Vikash Patni and certainly can be referred to by this Court. In the said documents there are some press-clipping with photographs and from a bare perusal of the same it is clear that the MOU entered into between M/s VMPL and Bihar Electricity Board (BEB) in connection with Integrated Power Plant to be set up at Begusarai, Bihar was signed on behalf of M/s VMPL by A-2 Vikash Patni only. It has been also already discussed that after initially proposing to set up an integrated steel plant, the company M/s VMPL had instead proposed to establish an integrated power plant on the same very land which was allotted to it by BIADA. It was in this regard that a MOU was entered into by M/s VMPL with Bihar Electricity Board.
This circumstance thus once again shows the active involvement of A-2 Vikash Patni in establishing the end use plant of M/s VMPL at Begusarai, Bihar.
201. I have also already discussed and demonstrated that the order dated 21.09.2007 vide which allotment of 300 acres of land in favour of M/s VMPL was cancelled by BIADA was also addressed to A-2 Vikash Patni and was posted at the same address which was mentioned as correspondence address in the application dated 24.08.2006 submitted by A-2 Vikash Patni to BIADA. I have also concluded that there is no reason to disbelieve that A-1 or its officers or directors were not having knowledge that allotment of 300 acres of land has since been cancelled by BIADA.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 183 of 467
202. Moreover from the fact that MOU with Bihar Electricity Board in connection with establishing the power project at Begusarai, Bihar on the same land which was earlier allotted to be the company M/s VMPL by BIADA for establishing the integrated steel plant was signed by A-2 Vikash Patni himself so he knew very well that the company is no longer establishing the integrated steel plant, qua which presentation was being made before the Screening Committee or whose details were being mentioned in the feed back form submitted to Screening Committee. This fact in itself establishes the existence of malafide intention on the part of A-2 Vikash Patni in deceiving MOC, Government of India so as to procure allocation of a captive coal block.
203. Thus if in these circumstances the presence of A-2 Vikash Patni at the time of presentation in the Screening Committee meeting is considered then it is found that in the feed-back form submitted to Screening Committee on 07.02.08 on behalf of A-1 M/s VMPL it was wrongly claimed that 300 acres of land stands allotted in favour of company and it was well to the knowledge of A-2 Vikash Patni that the said allotment of land has since been cancelled by BIADA. Thus the active and overt acts on behalf of A-2 Vikash Patni in the coal block allocation process on behalf of company M/s VMPL are writ large on the face of the record. The argument put-forth in this regard by Ld. Counsels for accused that the presentation was made by PW- 15 Ranjan Barman and that A-2 Vikash Patni had no role to play in the presentation or submission of feed-back form also does not hold CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 184 of 467 ground as in his deposition PW-15 Ranjan Barman clearly stated that he had gone to the Screening Committee meeting on the request of Vimal Kumar Patni, who was father of A-2 Vikash Patni and to only read the presentation in English as A-2 Vikash Patni himself was not proficient in English. Strangely enough no question or suggestion disputing the aforesaid deposition of the said witness was put to him in his cross-examination on behalf of A-2 Vikash Patni. In these circumstances there is no reason to even doubt the deposition of PW- 15 Ranjan Barman in this regard.
204. From my aforesaid discussion it is thus crystal clear that A-2 Vikash Patni is not being arrayed as accused or tried or being held liable on the basis of principle of alter ego or on the basis of vicarious liability but prosecution in my considered view has been clearly successful in proving on record cogent and convincing evidence to show that A-2 Vikash Patni was not only consistently involved in the affairs of M/s VMPL but was also actively involved in procuring allocation of a captive coal block from MOC Government of India in favour of M/s VMPL.
205. However before parting away with the present issue, I may state that during the course of investigation no efforts seems to have been made to collect other evidence of the company A-1 M/s VMPL such as the board resolution passed in the meetings of Board of Directors which would have certainly thrown light as to various other aspects and especially as regard the knowledge of all these aspects to the company and its other officers/directors.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 185 of 467 F (xi) Role played by A-1 M/s VMPL.
206. From the aforesaid extensive discussion of the prosecution case, it is crystal clear that both A-2 Vikash Patni who was the Managing Director of A-1 M/s VMPL and A-3 Anand Mallick who was the Business Development Manager of the company were clearly acting on behalf of company i.e. A-1 M/s VMPL so as to deceive MOC Government of India so as to procure allocation of a captive coal block in favour of company M/s VMPL. In other words the company M/s VMPL was acting through the said two persons in making various representations either before different authorities in state of Bihar or before MOC so as to procure allocation of a captive coal block in its favour. However Ld. Counsel Sh. Sougat Sinha submitted that as company M/s VMPL has already gone in liquidation and pursuant to filing of a winding-up petition before Hon'ble High Court of Calcutta, an Official Liquidator has been appointed. It has been thus pointed out that the official status of A-1 M/s VMPL is no longer the same status as was there at the time of submitting the application to MOC for seeking allocation of a captive coal block. It has thus been submitted that in these circumstances the company A- 1 M/s VMPL ought not to be convicted for any offence, if made out on the basis of acts of A-2 Vikash Patni and A-3 Anand Mallick committed at the time of seeking allocation of captive coal block from MOC, Government of India, in favour of the company.
My Discussion CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 186 of 467
207. In this regard, I may state that what is being looked into in the present judgment is as to what all acts were committed by the various parties involved in the present matter at the relevant time and what was the effect thereof. Thus if on account of the said acts company M/s VMPL is held guilty for any offence whatsoever then the various submissions as have been made by Ld. Counsel Sh. Sougat Sinha on behalf of Official Liquidator would be relevant and considered only at the time of hearing on the point of sentence and not at this stage i.e. when the quantum of punishment will be decided. At the cost of repetition, I may thus state that since various acts of misrepresentation were made on behalf of A-1 M/s VMPL by A-2 Vikash Patni and A-3 Anand Mallick so it can not be stated that the company M/s VMPL is in any manner sought to be burdened with any form of vicarious liability.
F (xii) Whether the ingredients of the offence of cheating stands proved.
208. Thus from the aforesaid discussion, it is clear beyond shadows of any reasonable doubts that all the three accused namely A-1 M/s VMPL, A-2 Vikash Patni and A-3 Anand Mallick dishonestly misrepresented to 36th Screening Committee about its various claims such as its intention to establish an integrated steel plant at Begusarai, Bihar beside also presenting a higher status/stage of preparation towards establishing the end use project and thereby induced it to make a recommendation in favour of A-1 M/s VMPL for allocation of Moira-Madhujore coal block. It also stands well proved CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 187 of 467 that MOC, Government of India was thereby deceived and was induced to approve allocation of Moira-Madhujore coal block i.e. a valuable security in favour of A-1 M/s VMPL for its captive use.
209. The very ingredients of the offence of cheating i.e. u/s 420 IPC thus stands proved against all the three accused i.e. A-1 M/s VMPL, A-2 M/s Vikash Patni and A-3 Anand Mallick.
F (xiii) Whether the accused persons i.e. A-1 M/s VMPL, A-2 Vikash Patni And A-3 Anand Mallick acted in pursuance to a criminal conspiracy.
210. Having come to the conclusion that all the three accused persons i.e. A-1 M/s VMPL, A-2 Vikash Patni and A-3 Anand Mallick cheated MOC, Government of India in order to procure allocation of Moira-Madhujore coal block in favour of A-1 M/s VMPL, the next issue to be considered is whether such acts of cheating were committed by all the three accused persons in pursuance to a criminal conspiracy hatched by them or not.
211. 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 CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 188 of 467 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 three accused persons i.e. A-1 M/s VMPL, A-2 Vikash Patni and A-3 Anand Mallick much less with the other accused MOC officers.
212. 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 observations have been consistently followed in all the cases till date.
213. 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 CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 189 of 467 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. 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 CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 190 of 467 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". 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 CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 191 of 467 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."
214. Thus, undoubtedly direct evidence qua offence of criminal conspiracy is hard to come up but the same is to be ascertained from the overall facts and circumstances of a given case.
215. Coming now to the facts of the present case, it will be pertinent to mention that the factum of submission of application Ex. P-96 (Colly) (D-8) of A-1 M/s VMPL seeking allocation of Moira- Madhujore coal block under the signatures of its authorised signatory i.e. A-3 Anand Mallick stands well proved. The presence of A-2 Vikash Patni and A-3 Anand Mallick at the time of presentation before the Screening Committee on 07.02.2008 has also been cogently established. The submission of feed-back form at that time CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 192 of 467 under the signatures of A-3 Anand Mallick also stands well proved on record. It has also been clearly established in the earlier part of present judgment that the company A-1 M/s VMPL never had any intention to establish the proposed integrated steel plant and it was also to its knowledge that the allotment of 300 acres of land in favour of M/s VMPL has been cancelled by BIADA vide order dated 21.09.2007. It has been also well established and concluded that both A-2 Vikash Patni, Managing Director of A-1 M/s VMPL and A-3 Anand Mallick, Business Development Manager of the company had knowledge of both the aforesaid aspects. Thus when despite having such a knowledge the accused persons i.e. A-2 Vikash Patni and A-3 Anand Mallick continued to pursue further with their application submitted on behalf of A-1 M/s VMPL before the Screening Committee, MOC, Government of India for seeking allocation of a captive coal block, the said acts per-se shows the existence of an agreement amongst them so as to procure allocation of a captive coal block from MOC, Government of India in favour of A-1 M/s VMPL at any cost whatsoever. The object to procure the allocation of said captive coal block from MOC has also been discussed by me in as much as the company wanted to divert coal produced from the said coal block to its existing sponge iron plant at Purulia West Bengal and especially because Government of West Bengal was not in favour of allocation of any coal block situated in the State of West Bengal in favour of M/s VMPL. It is also apparent from the facts and circumstances of the case that company M/s VMPL had earlier also applied for allocation of a captive coal block before MOC and their CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 193 of 467 application was in fact also considered by 34 th and 35th Screening Committee but it remained unsuccessful. The object of mentioning all such details of the proposed end use project was to somehow meet the criteria laid down by Ministry of Steel regarding proposed sponge iron capacity to be achieved and thereby obtaining allotment of a captive coal block from MOC, Government of India.
216. The issue regarding mentioning of inflated claims qua financial strength of the company in the application has also been already discussed by me and it was well to the knowledge of accused persons that in terms of the guidelines issued by MOC governing allocation of captive coal blocks, it was not permissible to mention the figures of financial strength of any group company as the company M/s VMPL was neither a special purpose vehicle (SPV) nor a joint venture company constituted by any other company or companies. Moreover in the application it was no where mentioned that company M/s VMPL is a part of Impex Group of Companies. Thus from the aforesaid facts and circumstances, we have a case where there is no requirement of even drawing any inference about the existence of a criminal conspiracy amongst the accused persons as the said meeting of mind or existence of an agreement which is a sine-qua- non for a criminal conspiracy to exist is 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 VMPL, A-2 Vikash Patni and A-3 Anand Mallick.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 194 of 467 F (xiv) Conclusion
217. From the aforesaid discussion it is thus clear that prosecution has been successful in proving its case against all the three accused persons namely A-1 M/s VMPL; A-2 Vikash Patni and A-3 Anand Mallick for the offence of criminal conspiracy i.e. u/s 120-B IPC and also for the offence of cheating i.e. u/s 420 IPC beside also for the offence u/s 120-B/420 IPC and I accordingly hold them guilty of the said offences and convict them thereunder.
(G) Role of accused Ministry of Coal officers i.e. A-4 H.C. Gupta, A-5 K.S. Kropha and A-6 K.C. Samria
218. After having discussed the role played by the private parties involved i.e. A-1 M/s VMPL, A-2 Vikash Patni and A-3 Anand Mallick in the entire coal block allocation process which led to allocation of Moira-Madhujore coal block in favour of A-1 M/s VMPL, I shall be now discussing the role played by accused MOC 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. In order to appreciate the role of these officers of MOC either in their capacity respectively as Secretary Coal and Chairman Screening Committee; Joint Secretary Coal and Member Convener, Screening Committee or Director CA-I Section, MOC, it will be important to first delineate the role which was played by them in the entire coal block allocation process. Thereafter it will be seen as to whether various acts of omission or commission as have been CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 195 of 467 attributed to them by the prosecution stands proved or not and what is the cumulative effect of such proved acts of omission and commission qua each of the three accused persons.
219. Admittedly an advertisement inviting applications for allotment 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 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 CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 196 of 467 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.
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.
220. Though the purpose of framing all such guidelines by MOC or the effect thereof shall be discussed by me at a later stage of the present 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 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 is also required to be seen as to whose responsibility was it to comply with the said guidelines and whether any such duty was assigned to any particular officer/official or a given section in MOC. It also needs to be seen as to whether the applications were actually checked for their completeness and eligibility in MOC as was required under the guidelines and, if yes, CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 197 of 467 whether the applications which were found to be incomplete in terms of the said guidelines were actually rejected or not as was required under the guidelines. In other words whether incomplete applications were also to be considered by the screening committee instead of getting them 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.
221. 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 officers was their conscious and intentional act and also whether the same was in pursuance of any criminal conspiracy hatched by them with other co-accused persons or not. It is thereafter only can it be examined as to whether the acts of omission and commission as stands proved against the MOC officers amount to criminal misconduct under the Prevention of Corruption Act, 1988 or not.
222. In order to appreciate the aforesaid issues comprehensively, it will be appropriate to once again have a brief glance over the relevant portion of the guidelines so issued by MOC. (The entire set of guidelines have though already been reproduced in the earlier part of the present judgment).
223. The procedure to apply for allocation of a coal block was provided as under:
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 198 of 467 "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:
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 CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 199 of 467 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)
224. The place where the applications were to be submitted and the person to whom the same were to be addressed was provided as under:
"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)
225. As regard the procedure for processing of the applications, the following guidelines were also put up on the website:
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 200 of 467 "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)
226. Further for ascertaining the 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.
Preference will be accorded to the power and the steel sectors.
Within the power sector also, priority shall be accorded to CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 201 of 467 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)
227. It has been however vehemently argued by Ld. Counsel Sh. Rahul Tyagi for A-5 K.S. Kropha and A-6 K.C. Samria and by Ld. Counsel Sh. Rajat Mathur for A-4 H.C. Gupta that it was the sole responsibility of CA-1 Section, MOC to ensure compliance with the said guidelines. Reference in this regard was also made to the deposition of PW-1 V.S. Rana who stated that it was the responsibility of CA-I Section to comply with the said guidelines. It was also 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 of MOC 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 also stated that he 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 CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 202 of 467 Procedure. His claim of having given 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 as Ministry of Coal was, 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 unless anything was specifically brought to his knowledge. 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.
228. 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 CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 203 of 467 officers. It was thus submitted that had CA-1 Section officers/officials brought to their knowledge any such difficulty being faced by them in complying with the guidelines then certainly additional staff would have been arranged for or other necessary steps would have been taken.
229. It was also submitted that working of a Ministry in Central government is governed strictly by Central Secretariat Manual of Office Procedure (herein-after referred to as "Manual of Office Procedure). It was argued that the provisions of Manual of Office Procedure were mandatory to be followed by all officers and officials in the Ministry. It was accordingly submitted that Manual of Office Procedure required that oral instructions if given by any senior officer should be reduced into writing by the officer/official receiving them and should be got confirmed from the officer giving such oral instructions. It was thus argued that any oral statement being now made by PW-1 V.S. Rana, the then Under Secretary, MOC contrary to the written record ought not be relied upon.
230. It was also submitted that even minutes of the meetings of 36th Screening Committee were recorded in accordance with para 54 (4) (c) of the Manual of Office Procedure. It was also submitted that common minutes of all the 5 sittings of 36 th Screening Committee as were held on 7/8.12.2007, 7/8.02.2008 and 03.07.2008 were recorded since the said five sittings can not be construed as separate meetings of Screening Committee warranting recording of separate minutes of the meetings immediately thereafter. It was submitted that CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 204 of 467 primarily the discussion which 36th Screening Committee undertook spanned over 5 sittings and thus there was no requirement in law to record separate minutes of each of the sittings immediately after its conclusion and more so when the final recommendations were made by the Screening Committee in its meeting held on 03.07.08 only. Beside placing reliance on para 54 (4) (c) of Manual of Office Procedure, reference was also made to a book titled "Shackleton on the Law and Practice of Meetings". In fact reference to the said book was also made qua various other aspects also i.e. as regard the role of Chairman or that of Member Convener, the quorum required for the meeting or the procedure in which a meeting as that of Screening Committee ought to be held or as to how minutes of a meeting ought to be recorded.
231. As regard the claim of PW-1 V.S. Rana that CA-I Section officials were not having the required technical, legal or financial knowledge to check the applications, it was submitted that they were not required to examine the documents annexed so as to carry out an analysis of the same and they were only required to check as to whether total number of documents as were required to be annexed with the applications in terms of the guidelines were there or not. It was also submitted that to examine the documents annexed with the applications was the job of Administrative Ministries and State Governments. Reference in this regard was made to the minutes of 14th and 18th Screening Committee meetings. It was submitted that even though the said decisions were not part of guidelines issued by CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 205 of 467 MOC but were otherwise being followed in practice by all concerned.
232. As regard the allegation of prosecution that the minutes were silent as to the reason for which M/s VMPL was recommended for allocation of a coal block or as to why other applicant companies who too had applied for allocation of Moira-Madhujore coal block were not recommended, it was submitted that as the decision of the Screening Committee was unanimous so only essence of outcome of the deliberations was recorded. It was submitted that MOC officers/officials were bound to strictly follow the provisions of Manual of Office Procedure an in case of any deviance, the concerned officer/official was required to record reasons for the same in accordance with para 30 of Manual of Office Procedure titled "Deviation from Normal Procedure of Rules". Ld. Counsel for accused public servants also argued that the senior officers of MOC who are now facing trial were in fact never informed by any officer/official of MOC much less by those of CA-1 Section that the applications have not been checked for their eligibility and completeness. It was submitted that in fact from the deposition of PW-1 V.S. Rana, it is clear that CA-1 Section followed the past practice in the processing of applications. While referring to deposition of DW-2 M.R. Attrey and DW-7 Prem Raj Kuar it was submitted that at the time of 34 th Screening Committee the applications were clearly checked for their completeness and thus there is no reason to presume now that the applications received qua 36th Screening Committee were not checked for their completeness.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 206 of 467
233. As regard A-6 K.C. Samria it was submitted by Ld. Counsel Sh. Rahul Tyagi that he was given additional charge of CA-1 Section only on 16.03.2007 and by which date copies of applications were already sent to Administrative Ministries/State Governments concerned and also to CMPDIL. It was submitted that from 16.03.2007 till April 2007 A-6 K.C. Samria was having charge of other sections also and was finally posted to CA section only in the month of May 2007.
234. 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 -1 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-1 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-1 V.S. Rana or by 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.
235. On the other hand it has been vehemently argued by Ld. Sr. CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 207 of 467 P.P. that PW-1 V.S. Rana has repeatedly stated that provisions of Manual of Office Procedure were not strictly followed in the routine day to day functioning of the Ministry. It was submitted that when various proceedings which admittedly took place in MOC are seen in the light of notings recorded in the file then it is seen that the provisions of Manual of Office Procedure were not strictly followed in the routine day to day functioning. Even as regard the recording of minutes of various meetings of 36th Screening Committee, it was submitted that admittedly separate minutes were recorded qua various sittings of 34th Screening Committee in MOC and more so when 34th Screening Committee was also headed by A-4 H.C. Gupta only with A-5 K.S. Kropha as Member Convener thereof. Ld. Senior P.P. also placed on record certified copy of the deposition of accused public servants as was recorded u/s 315 Cr.PC in another coal block allocation matter pertaining to 36 th Screening Committee meeting itself and as has since been decided by this Court i.e. CBI Vs. M/s KSSPL, to show that in the said trial accused public servants themselves admitted in their deposition that the applications were not checked for their eligibility and completeness in MOC, even though they did claim that they were never informed at the relevant time about the same by any officer/official of CA-1 Section.
236. Before I embark on any discussion qua any of the issues so raised by Ld. Defence Counsels or by Ld. Sr. P.P, I may mention over here that whether the deposition of accused public servants recorded u/s 315 Cr.PC during the trial of another case since decided by this CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 208 of 467 Court can be now referred to or not in the present case will be considered at the time when the relevant issue will come-up for discussion. Thus I would like to place on record a note of caution that in the subsequent part of the judgment the issue as to what all documents relied upon either by prosecution or by defence can be referred to in the present proceedings shall be duly kept in mind and any such documents referred to by any of the parties will be considered purely on the basis of their relevancy, admissibility and proof in accordance with the provisions of Indian Evidence Act, 1872.
I now deem it appropriate to first deal with the primary issue as to whether applications so received in MOC were contemplated to be dealt with under the provisions of Manual of Office Procedure and if yes then to what extent the provisions thereof were followed. The applicability of the said provisions to the Screening Committee proceedings shall also be seen and examined.
G (i) Whether the process of receiving the applications or their subsequent processing in Ministry of Coal was dealt with in accordance with the provisions of Central Secretariat Manual of Office Procedure.
237. As earlier mentioned all during the entire trial Ld. Counsels for the accused MOC officers placed lot of emphasis upon the applicability of provisions of Manual of Office Procedure in the working of Ministry of Coal and Screening Committee. It was vehemently argued that the working of a Ministry in Central Government has to be strictly undertaken in accordance with the CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 209 of 467 provisions of Manual of Office Procedure. It was submitted that if any action was undertaken in violation of provisions of Manual of Office Procedure then not only said official/officer is liable to explain reasons for such a deviation/violation but also as to why specific reasons were not recorded in the file for the same. It was also submitted that in the light of provisions of Manual of Office Procedure, no oral evidence contrary to the written records should be held to be admissible.
238. The issue of applicability of provisions of Manual of Office Procedure to the coal block allocation process assumes all the more importance since PW-1 V.S. Rana, the then Under Secretary, MOC stated that in day to day functioning of the Ministry, the provisions of Manual of Office Procedure are not strictly followed. It thus becomes important to see that if the Manual of Office Procedure was applicable then whether in routine day to day functioning, the provisions thereof were strictly followed or not.
239. As regard the applicability of Manual of Office Procedure to the 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.
240. In this regard before proceeding further to examine the CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 210 of 467 applicability of Manual of Office Procedure to the day to day routine functioning of a Ministry in Government of India. 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.
"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"
241. 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 CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 211 of 467 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 office. Chapter XVIII provides for miscellaneous provisions.
242. From the aforesaid scheme of different chapters, it is thus clear that the Manual of Office Procedure beside 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.
243. 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 required to be first seen as to whether the applications so invited by way of advertisement can be termed as "Written Communication" as contemplated under the "Manual of Office Procedure".
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 212 of 467
244. 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 Methods of Delivery". The said list of written communications and their methods of delivery as is generally used by a department talks of letter, Demi-official letter, office memorandum, inter-departmental note as forms of written communications 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. The form of various such written communications have also been explained in Para 50 itself. 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 is mentioned in the definition of "Dak" in para 1 (14) of the Manual of Office Procedure. Even though the definition of "Dak" as given in Para 1 (14) is inclusive in nature but even if the ordinary meaning of "Dak" is seen then also it is found that applications so received in MOC in response to advertisement can not be termed as "Dak". The word "Dak" as ordinarily understood and CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 213 of 467 as has been defined in "Collins" Dictionary or in "Merriam Webster" Dictionary is a system of mail delivery or passenger transport by relays of bearers or horses stationed at intervals along a route. Moreover Para 1 of Manual of Office Procedure wherein definition of various terms used in the Manual of Office Procedure has been provided starts as under:
"Special meanings - Special meanings to be attached to some of the terms used in the Manual are given below:-"
245. Thus it is clear that the word "Dak" has been used in the Manual not only as a means of communication but also as a form of communication. In this regard it would thus also take its colour from various other forms of communications as are mentioned in the definition given in para 1 (14) itself.
Thus from the aforesaid discussion it is clear that applications seeking allocation of captive coal blocks received in response to advertisement issued by MOC can not be termed as "Dak".
246. However not only from the aforesaid discussion, it is clear that applications so invited by MOC can not be termed as "Dak" as contemplated under the Manual of Office Procedure but 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 CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 214 of 467 it would have been an ideal situation if at least the other subsequent proceedings relating to coal block allocation process as were carried out in MOC after receipt of applications would have been carried out strictly as per the provisions of Manual of Office Procedure. My subsequent discussion would however show that even subsequent proceedings were also never dealt with strictly as per the provisions of Manual of Office Procedure even by senior officers of MOC (including accused public servants). The provisions of the Manual of Office Procedure prescribing Procedure and Rules in the routine working of Ministry of Coal were in fact observed more in breach.
247. At this stage, I may however make a mark of caution though at the cost of repetition that I am not at all suggesting that Manual of Office Procedure is not required to be followed in working of any Ministry of Central Government but what is being examined over here is the claim made by PW 1 V.S. Rana that in practical day to day functioning provisions of Manual of Office Procedure were not mandatorily followed. At the same time, the claim of accused public servants that the Manual of Office Procedure was required to be mandatorily followed even in routine functioning is also being examined and also that no oral evidence ought to be entertained firstly which is contrary to written record and secondly in those situations where there ought to be written noting/endorsement in accordance with provisions of Manual of Office Procedure and when no such noting/endorsement exists on record.
248. Thus in order to examine as to whether provisions of Manual CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 215 of 467 of Office Procedure were followed in routine day to day functioning of MOC or not, it would be worthwhile to point out a noting dated 07.05.2007 (D-17) recorded by a dealing assistant of CA-I Section. The said noting was duly forwarded by Sh. R.N. Singh the then Section Officer, CA-I Section on 07.05.2007 itself to PW-1 V.S. Rana the then Under Secretary and who further forwarded the same to A-6 K.C. Samria, the then Dy. Secretary CA-1 Section again on 07.05.07 itself. The said noting available at note sheet page 20 in note sheet pages Ex. PW 1/N (Colly) in file Ex. P-13 (Colly) (D-17) read as under:
"As directed by DS (CA-I) over inter-com that a meeting of the Screening Committee has been proposed to to be held under the Chairmanship of Secretary (Coal) on 11.05.2007 at 10.30 A.M. in his Chamber. It has further been directed to issue notice to M/Power/M/Steel/M/Commerce & Industry (DIPP)/CIL/CMPDIL. Accordingly, a draft notice is put up for approval.
DFA
sd/- sd/-
(Dealing Assistant) (R.N. Singh)
7/5/07
sd/-
US (CA-I) (V.S. Rana)
07/05/2007
sd/-
DS (CA-I) (K.C. Samria)
07/05/07
sd/-
US (CA-I) (V.S. Rana)
07/05/2007
SO (CA-I)"
249. Thus the aforesaid noting clearly shows that Dy. Secretary CA-1 K.C. Samria on inter-com had directed CA-1 Section that a CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 216 of 467 meeting of the Screening Committee has been proposed to be held under the Chairmanship of Secretary (Coal) on 11.05.2007 at 10.30 A.M. in his Chamber. Notices were accordingly directed to be issued to some of the members of Screening Committee as are mentioned in the aforesaid noting. These facts thus show that Dy. Secretary had given direct instructions to CA-1 Section on inter-com and in the process he by-passed Under Secretary, CA-1 Sh. V.S. Rana.
Moreover, when the file was put up with the aforesaid noting by CA-1 Section then A-6 K.C. Samria, the then Dy. Secretary approved the said noting including the draft notices to be issued to members of Screening Committee at his own level. There is at all no explanation in the entire file as to who first of all decided that a Screening Committee meeting be held on 11.05.2007. The purpose of calling such a meeting of Screening Committee is also not mentioned in any of the notings in the files of MOC. Moreover when such a meeting was decided to be held in the chamber of Secretary, Coal himself then it is quite obvious that consent of the officer concerned i.e. Secretary Coal, who incidentally was also Chairman of the Screening Committee must have been also obtained. Moreover as per the submissions made by Ld. Counsel Sh. Rahul Tyagi for A-5 K.S. Kropha while the role of Chairman of a meeting was to ensure that meeting takes place in an orderly and efficient manner in accordance with all necessary rules and regulations, the role of convener of a meeting was to typically convene a meeting i.e. "causes to come together". It was thus the duty of the Convener to get the notices issued and take all other necessary steps for holding of the meeting.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 217 of 467 It was however also argued by Ld. Defence Counsel that role of a convener ends as soon as the meeting gets convened and thereafter, the Chairman takes over.
250. Thus from the submissions of Ld. Defence Counsel himself, it was the job of Member Convener of Screening Committee i.e. A-5 K.S. Kropha to convene the said meeting. Certainly he could have convened the said meeting only after taking prior approval of the Chairman i.e. of Secretary Coal. Incidentally there is no noting or endorsement in the entire file of MOC which could show that any such prior approval was sought from Chairman Screening Committee i.e. Secretary Coal either to convene such a meeting or even as regard the venue of the meeting that the same be held in his office chamber only. There is again no noting as to for what purpose the said meeting was decided to be convened.
251. At this stage before proceeding further, it would be appropriate to deal with yet one other argument of Ld. Counsels for the accused persons that as per para 5 (9) (c) Manual of Office Procedure a Director/Deputy Secretary was entitled to take orders of the Joint Secretary/Secretary in more important cases either orally or by submission of papers. In fact attention of PW-1 V.S. Rana, the then Under Secretary, MOC was drawn to aforesaid para of Manual of Office Procedure in his cross-examination by Ld. Counsels for accused public servants to point out that an Under Secretary was not entitled to take any oral directions from his senior officers whereas a Director/Deputy Director was permitted to take any such oral CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 218 of 467 directions in his discretion.
252. Before I advert on to deal with the aforesaid argument, it would be worthwhile to refer to the functions of various levels of functionaries i.e. Secretary, Special Secretary/Additional Secretary/Joint Secretary; Director/Deputy Secretary and an Under Secretary as have been mentioned in para 5 (9) of the Manual of Office Procedure. Para 5 (9) of the Manual of Office Procedure inter- alia read as under:
"(5) Department -
. .. . . . .
. .. . . . .
. .. . . . .
. .. . . . .
(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 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, in charge 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.
(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 CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 219 of 467 be able to dispose of the majority of cases coming up to 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 dispatch 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."
253. Thus in the light of aforesaid provisions even if it is presumed for the sake of arguments that A-6 K.C. Samria being the Deputy Secretary had taken oral instructions from Joint Secretary, K.S. Kropha or from Secretary, H.C. Gupta that such a meeting is to be convened then as per Manual of Office Procedure itself and as per the consistent arguments of Ld. defence Counsels themselves such oral instructions ought to have been reduced into writing and got confirmed from the officer(s) concerned i.e. from the officer(s) who gave such instructions. However as already mentioned above the file after it was put up with a noting by Sh. R.N. Singh dealing hand of CA-I Section with draft notices to be sent to certain members of the Screening Committee never travelled beyond the desk of A-6 K.C. Samaria and the draft notices were approved by him only. Thus admittedly such directions as were reduced into writing by the dealing hand in CA-I Section were never got confirmed by A-6 K.C. Samria by putting up the file to any of the senior officers i.e. either to A-5 K.S. Kropha or to A-4 H.C. Gupta. Thus even if any oral directions are presumed to have been given either by A-4 H.C. Gupta or by A-5 K.S.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 220 of 467 Kropha for holding of Screening Committee meeting on 11.05.2007 then also it was the bounden duty of A-6 K.C. Samria to get them approved from the said senior officer(s). However A-6 K.C. Samria chose to further pass on oral instructions to CA-I Section and when the concerned dealing hand in the CA-I Section reduced those instructions into writing then A-6 K.C. Samria did not think it appropriate to send the file to senior officer(s) for getting the oral instructions confirmed. In fact Para 54 (4) of the Manual of Office Procedure which deals with inter-departmental meetings states that no such meeting will normally be convened except under the orders of an officer below the level of Joint Secretary.
254. At this stage, I may mention that though from the factum of subsequent participation in the meeting by A-4 H.C. Gupta and A-5 K. S. Kropha and consequent recording of minutes of the meeting held on 11.05.2007, it can not be disputed that they did not consent to holding of such a meeting but what is being examined over here is whether provisions of Manual of Office Procedure were strictly followed in MOC or not. The entire exercise being undertaken at present is only to examine as to whether PW-1 V.S. Rana rightly claimed that in routine day to day functioning the provisions of Manual of Office Procedure were not mandatorily followed. In fact the aforesaid actions of accused public servants in summoning such a Screening Committee meeting rather goes to suggest that even qua important matters i.e. even as regard summoning of Screening Committee meeting also the provisions of Manual of Office Procedure CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 221 of 467 were not followed.
255. There is yet another important aspect qua the holding of meeting of Screening Committee on 11.05.2007.
Though the said meeting is stated to be a meeting of the Screening Committee but strangely enough and for reasons best known to the accused public servants only, in the said meeting none of the State Government representatives were called. Admittedly various state Government representatives were Members of Screening Committee and once again there is nothing in the file of MOC as to why representatives of State Governments were not called for in the said meeting or who took the said decision to not to invite them. The noting of Sh. R.N. Singh clearly says that notice have been directed to be issued to Ministry of Power/Ministry of Steel/Ministry of Commerce (DIPP), CIL and to CMPDIL.
256. Apart from the aforesaid circumstances there is yet another instance regarding meeting held on 11.05.2007, wherein provisions of Manual of Office Procedure were apparently not complied with.
257. It has been the claim of accused public servants during the course of trial that agenda of meeting held on 11.05.2007 was duly prepared and circulated to the members of Screening Committee. While referring to the deposition of PW-11 N.R. Dash it was pointed out that such an agenda was though not available in the files of MOC but was certainly available in the files of Ministry of Steel.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 222 of 467 Though, at this stage I am not entering into any discussion as regard the contents of said agenda or as to in what circumstances the same came to be available in the files of Ministry of Steel but the only point being highlighted over here is that the entire notings in the files of MOC are completely silent as regard preparation of any such agenda. Even the office memorandum dated 07.05.2007 Ex. PW-1/N1 sent to Members of Screening Committee pursuant to approval given by A-6 K.C. Samria calling upon them to attend the Screening Committee meeting to be held on 11.05.2007 is also completely silent that any such agenda note is being sent either along with the office memorandum or that the same will be sent subsequently. There is no noting or office memorandum available either in the files of MOC or in the files of Ministry of Steel which could show that any such agenda note of the meeting was indeed sent by MOC.
258. Though Ld. Counsels for the accused persons have tried to argue that all the files of MOC have not been supplied to them and thus, it cannot be concluded that there does not exist any file where such an agenda was prepared. The aforesaid bald argument though has been repeatedly taken up by the accused persons simply with a view to create doubts about the veracity of prosecution case by stating that complete record has not been produced but I may state that from the sequence of various notings as are available in different files of MOC and especially when they are considered in chronological order, then it is clear that no file of MOC pertaining to CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 223 of 467 period under discussion over here is missing.
259. In fact from a perusal of file Ex P-13 (Colly) (D-17) of MOC which contains the notings regarding the process followed towards issuance of advertisement for inviting applications and the subsequent proceedings regarding summoning of Screening Committee meetings, it is clear that whenever any agenda was to be prepared for a proposed Screening Committee meeting then appropriate notings were recorded in the same file itself by the concerned officials. Thus it can not be even presumed for the sake of arguments that while noting regarding holding of Screening Committee meeting to be held on 11.05.2007 and consequent issuance of notice to members of Screening Committee was recorded in this file only i.e. in file Ex. P-13 (Colly) (D-17) but for preparation of agenda of the meeting the relevant noting must have been put in some other file.
260. Thus, once again there is a situation where there is no noting in the files of MOC which could show that while summoning the meeting of Screening Committee on 11.05.2007 any agenda thereof was prepared. Moreover even if it is presumed that such an agenda was indeed prepared then there is no noting in the files of MOC as to who prepared the said agenda or who approved the same. Yet again the notice of the meeting sent to members of Screening Committee is also completely silent that any such agenda of meeting is being enclosed along with the notice or is being separately sent. There is again no noting or office memorandum available in the files of MOC CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 224 of 467 or even in the files of Ministry of Steel which could show that such an agenda was sent by MOC. In fact Para 54 (4) (b) of the Manual of Office Procedure which talks about inter-departmental meetings states that it will be ensured that 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 meetings.
261. Thus, even if it is presumed for the sake of arguments that such an agenda was indeed sent by MOC and on account of which the same was found in the files of Ministry of Steel but still the proceedings in the files of MOC as discussed above conclusively establish that the provisions of Manual of Office Procedure were not followed in even important matters in MOC much less in routine day to day functioning and that too by accused public servants themselves also.
262. I have thus no reason to doubt the claim made by PW 1 V.S. Rana that the provisions of Manual of Office Procedure were not mandatorily followed in routine day to day functioning in the Ministry or that at times certain matters were taken up for consideration on verbal directions only or verbal instructions given by senior officers used to be followed. I have also thus no reason to believe the claim of accused public servants that the proceedings relating to coal block allocation matters were conducted strictly in accordance with the provisions of Manual of Office Procedure only.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 225 of 467 In fact during the course of subsequent discussion I shall be highlighting various other instances also where the provisions of Manual of Office Procedure were again not followed even by the senior officers of MOC.
263. For these reasons only, the argument of Ld. Counsels for accused public servants that oral deposition of the witnesses where written record ought to be there in accordance with Manual of Office Procedure and especially where no such written record exists be not considered, clearly does not hold ground. However it will be correct to state that if any oral deposition which is contrary to the written record is sought to be put forth, then it will not be appropriate to rely upon the said oral deposition unless there is a reason to doubt the correctness of the written record. Thus, at the cost of repetition I may state that if no written record exists on any aspect then oral deposition of the witnesses pertaining to the said event or aspect can always be considered and if found reliable and credible then the same can always be relied upon.
G (ii) Whether the provisions of Manual of Office Procedure were applicable to the proceedings of Screening Committee.
264. As regard the recording of minutes of various meetings of 36 th Screening Committee as were held on 7/8.12.2007, 7/8.02.2008 and 03.07.2008, it has been argued by Ld. Counsels for the accused public servants that all such meetings were in fact in the nature of extended sittings of 36th Screening Committee and as they were all part of one common meeting so their minutes were recorded in CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 226 of 467 common after the conclusion of final meeting held on 03.07.08 i.e. when the final recommendations of the Screening Committee were arrived at. As regard the contents of the minutes it was argued that the same have been recorded in accordance with the provisions of Section 54 (4) (c) of Manual of Office Procedure and as all the decisions so taken were unanimous so instead of recording detailed reasons for the same, the essence and outcome of the deliberations was only recorded.
265. Ld. Sr. P.P. Sh. Sanjay Kumar has however strongly opposed the said contention stating that the minutes recorded by accused MOC officers are so cryptic and vague that nothing is ascertainable as to on what basis recommendation in favour of any company including M/s VMPL was made. It was submitted that the minutes ought to have disclosed not only the reasons for which the Screening Committee arrived at any given decision but it also ought to have mentioned the views/opinion expressed by various members during the course of discussion in the meeting. It was also pointed out that at the time of 34th Screening Committee with which A-4 H.C. Gupta and A-5 K.S. Kropha were associated, separate minutes were recorded with respect to each sitting of the Committee.
My Discussion
266. Before I advert on to discuss this limb of argument put-forth by Ld. Counsels for the accused public servants, it would be worthwhile to have a brief glance over para 54 of Manual of Office Procedure. The same read as under:
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 227 of 467 "Forms and Procedure of Communication.
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) Inter-departmental references will normally be made under the directions of an officer not below the rank of Under Secretary or as may be provided by the departmental instructions.
(b) The points on which the opinion of other departments is sought or which it is desired to bring to their notice should be clearly stated.
(c) Where possible, the drafts of the orders proposed to be issued may also be shown to the departments sought to be consulted.
(d) When it is necessary to consult more than one department on a case, such consultation may be effected simultaneously by self-contained inter-departmental notes unless:
(i) it involves copying of a large number of documents available on the file; or
(ii) the need for consulting the second Department would arise only after the views of the first have become available.
(3) (a) When such a reference requires concurrence of one or more Ministries under the Government of India (Transaction of Business) Rules, the following further points should be observed:
(i) The originating Ministry should invariably prescribe a time-limit when calling for comments or concurrence from other Ministries.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 228 of 467
(ii) In case any of the Ministries so consulted is not in a position to send its comments/concurrence within the prescribed time-limit, it should write back promptly, in any case before the prescribed time-limit, and indicate the additional time they would require for furnishing their final reply.
(b) When such a reference does not require such concurrence under the Rules, the originating Ministry need not wait for the comments of other Ministry beyond the prescribed time-limit, and it should feel free to go ahead with its scheme/proposal without waiting any longer.
(c) The initiating Ministry should always feel free to recall its file from another Ministry, to which such a reference has been made on a file, if such a course is required to be adopted for expediting the process of decision making in the case. Such a decision to recall a file should be taken at a level not lower than that of a Branch Officer in the originating Ministry.
(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 along with 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 taking further action on each conclusion.
(5) On occasions it may be necessary to have oral discussions (including teleconferencing or video conferencing) with officers of CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 229 of 467 other departments, e.g., when:
(a) a preliminary discussion between the officers of the departments concerned is likely to help in the disposal of the case;
(b) it is desirable to reach a preliminary agreement before proceeding further in the matter;
(c) inter-departmental noting reveals a difference of opinion between two or more departments; or
(d) it is proposed to seek only information or advice of the department to be consulted.
The result of such oral consultation should be recorded in a single note on the file by the officer of the department to which the case belongs. The note will state clearly the conclusions reached and the reasons thereof. A copy of the note will also be sent to the departments consulted in order that they have a record of the conclusions reached.
(6) Reopening of decisions arrived at after proper inter- departmental consultations should normally be avoided. In case adequate grounds exist for re-opening of such issues, it should be settled after a quick re-assessment.
(7) In case two or more departments persist with their respective view points leading to a deadlock or impasse, such issues should be sorted out by raising the level of consideration to a forum like the Committee of Secretaries headed by the Cabinet Secretary or to the level of Ministers concerned, to arrive at a quick decision without continuing with protracted correspondence/discussions among the disputing departments.
(8) Nodal Ministries/Departments, which render advice to various departments and do so through different Divisions, will ensure that the views expressed by them at inter-departmental discussions are consistent, and they are not found deviating from their views on different occasions. The expression of conflicting views by the different Divisions of the same department during such inter-departmental discussions should be discouraged."
(Emphasis supplied by me) CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 230 of 467
267. As the title of para 54 shows that the same pertains to Inter- departmental consultation so it will be appropriate to refer to the definition of the word "Department" as is mentioned in para 1 (16) of Manual of Office Procedure. The same will provide an idea as to what is meant by an inter-departmental meeting.
Para 1 (16) of Manual of Office Procedure read as under:
"1(16) 'Department' means any of the ministries, departments, secretariats and offices mentioned in the First Schedule to the Government of India (Allocation of Business) Rules."
268. In this light if first schedule to the Government of India (Allocation of Business) Rules, 1961 is referred to then it is found that State Governments or any Department/Ministries of State Governments are not mentioned over there. In these circumstances the inter-departmental consultation referred to in para 54 can thus pertain to only such consultations in which various Ministries, Departments, Secretariats and offices of Central Government as have been referred to in first schedule of the Allocation of Business Rules, 1961 are involved. Certainly, if the State Governments are also involved in such consultation then such a consultation will become not only an inter-departmental consultation but also inter- governmental consultation. In fact it has been the case of accused public servants themselves and rightly so that the Screening Committee was an inter-ministerial/inter-governmental body. Thus to the meetings of such a body, the provisions of para 54 of Manual of Procedure can certainly not apply for the same pertains to only inter-
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 231 of 467 departmental consultations. In fact a careful perusal of the Manual of Office Procedure further shows that the same is primarily meant to apply to the functioning of various Ministries/Department, offices, Secretariats of Central Government and not to the functioning of a body whose structure is not only inter-departmental but also inter- governmental.
269. Thus while provisions of Manual of Office Procedure may be held to be applicable to the functioning of MOC but it can not be presumed that the same were applicable to the functioning of Screening Committee also.
270. Be that as it may the question which however arises in these circumstances is as to how the Screening Committee ought to have functioned or what procedure ought to have been followed by it. It will be also required to be examined as to how the minutes of 36 th Screening Committee meetings ought to have been recorded.
271. This issue in fact brings us to the next important aspect of the matter i.e. the purpose and effect of guidelines governing allocation of captive coal blocks as were issued by MOC. My subsequent discussion will thus show as to what was the purpose of issuing the said guidelines and whether the said guidelines were binding upon MOC and Screening Committee or not.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 232 of 467 G (iii) Whether the guidelines issued by MOC governing allocation of captive coal blocks were binding and were mandatorily to be followed by MOC officers and by the Screening Committee.
272. In 1993 when the Coal Mines (Nationalisation) Act, 1973 was amended so as to provide for allocation of captive coal blocks to companies in private sector also, who were engaged in specified end uses, an inter-departmental/inter-governmental 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, Ministry of Power or Department of Industrial Promotion and Policy, 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.
273. Though initially no advertisement used to be issued by MOC CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 233 of 467 for inviting applications for allocation of captive coal blocks but the 34th Screening Committee issued an advertisement in the year 2005 inviting applications for allocation of captive coal blocks. The past practices 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 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 I.D. note of PMO dated 25.07.2006 Ex. PW 1/A (Colly) (D-43), fresh guidelines governing allocation of captive coal blocks were issued by MOC. Thus these guidelines issued at the time of inviting applications in November 2006 were to govern the allocation of captive coal blocks by 35 th and 36th Screening Committees. In the cross-examination of PW-1 V.S. Rana he admitted as correct a suggestion put to him by Ld. Defence Counsel that applications received in pursuant to advertisement issued by MOC in November 2006 were to be governed by the guidelines as were issued alongwith the advertisement in 2006 only and that the guidelines issued in 2003 were not applicable. Subsequently in response to a Court question put to him under section 165 Indian Evidence Act, he again reiterated the said fact.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 234 of 467
274. It has been however vehemently argued by Ld. Counsels for the accused public servants that as the guidelines issued by MOC were not issued under any Act, rules or regulations having any statutory backing or force and were not even published in the Gazette or authenticated in the manner required by law for giving the guidelines force of law so the said guidelines which were only in the nature of administrative guidelines/instructions issued by MOC did not cast any legal duty. It was thus argued that since the said guidelines did not have any binding force of law so any act of omission or in contravention of such instructions/guidelines does not become illegal per se unless the same also contravened some law, making such act or omission illegal. [It was however also argued by Ld. Defence Counsel as an alternative argument that actually no violation of guidelines actually took place. I shall be however dealing with the said issue separately at a later stage.]
275. In support of his aforesaid submissions that guidelines issued by MOC were not binding Ld. Defence Counsel placed reliance on the following cases:
(1) G.J. Fernandez vs. State of Mysore [MANU/SC/0050/1967] (2) Chief Commercial Manager, South Central Railway, Secunderabad vs. G. Ratnam [MANU/SC/7843/2007] (3) R. Sai Bharathi V. J. Jayalalitha and Ors. MANU/ SC/ 0956/ 2003 (4) Gulf Goans Hotels Company Ltd. Vs. Union of India [MANU/SC/0848/2014] CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 235 of 467 My Discussion
276. Before I advert on to discuss the aforesaid issue, it would be pertinent to mention that though the said guidelines were issued by MOC purportedly to provide a mechanism to implement the provisions of Mine and Minerals Act, 1957 and that of Coal Mines Nationalisation Act, 1973 (herein-after referred to as CMN Act, 1973) as it stood amended in the year 1993 but in its order dated 25.08.14 Hon'ble Supreme Court observed that the procedure adopted by MOC and by Screening Committee was not in accordance with the provisions of aforesaid Acts. However Hon'ble Supreme Court in the said order proceeded further to consider various acts undertaken by MOC and the Screening Committee in the allocation of various captive coal blocks assuming that Central Government has powers to allot captive coal blocks under Mines and Minerals Act, 1957 and CMN Act, 1973. Thus the exercise being undertaken by this Court in the present proceedings is also primarily confined to examination of various acts of omission and commission of accused MOC officers as were undertaken by them in the coal block allocation process which led to allocation of Moira Madhujore coal block in favour of M/s VMPL, with the assumption that the Central Government was acting under the two Acts believing bonafidely that it has power to so act. Thus what is required to be seen in the present proceedings is whether the rules/regulations or procedures as were devised by MOC for allocating captive coal blocks were adhered to by the accused MOC officers and by the Screening Committee and if not, then CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 236 of 467 reasons thereof and the intention in not doing so. However it is certainly true that before proceeding to examine the aforesaid aspects it also needs to be seen as to whether the guidelines so issued by MOC governing allocation of captive coal blocks were binding in nature or not, for only then the issue relating to any violation of the guidelines can be more appropriately examined. The said exercise will only thereafter lead to examination of the issue as to whether any culpability can be attributed to the accused MOC officers for any violation of said guidelines or not.
277. As earlier also mentioned the very purpose of issuance of guidelines by MOC so as to govern allocation of captive coal blocks and their subsequent uploading on the website of MOC was to bring them to the notice of public at large. A bare reading of said guidelines [as have been earlier reproduced] shows that the same not only controlled but also regulated the exercise of discretion by MOC and the Screening Committee in allocation of captive coal blocks. The purpose was also to inform the public at large as to how the allocation of captive coal blocks shall be made by MOC.
278. In this regard it will be worthwhile to first refer to some observations of Hon'ble Supreme Court in cases where Government was dealing with private persons in matters relating to award of contracts, grant of largesse etc. In the case Erusian Equipment and Chemicals Ltd. Vs. State of West Bengal (1975) 1 SCC 70, it was observed by Hon'ble CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 237 of 467 Supreme Court as under:
"When the Government is trading with the public, 'the democratic form of Government demands equality and absence of arbitrariness and discrimination in such transactions'. The activities of the Government have a public element and, therefore, there should be fairness and equality. The State need not enter into any contract with anyone, but if it does so, it must do so fairly without discrimination and without unfair procedure."
(Emphasis supplied by me)
279. The aforesaid observations were again approved by Hon'ble Supreme Court in the case Ramana Dayaram Shetty Vs. International Airport Authority of India 1979 (3) SCC 489 as under:
"This proposition would hold good in all cases of dealing by the Government with the public, where the interest sought to be protected is a privilege. It must, therefore, be taken to be the law that where the Government is dealing with the public, whether by way of giving jobs or entering into contracts or issuing quotas or licences or granting other forms of largess, the Government cannot act arbitrarily at its sweet will and, like a private individual, deal with any person it pleases, but its action must be in conformity with standard or norms which is not arbitrary, irrational or irrelevant."
(Emphasis supplied by me)
280. In Kasturi Lal Lakshmi Reddy Vs. State of J&K, 1980 4 SCC 1, Hon'ble Supreme Court while again referring to Ramana Dayaram Shetty case (Supra) further observed as under:
"10. It was pointed out by this Court in "Ramana Dayaram Shetty v. International Airport Authority of India [1979 (3) SCC 489] that with the growth of the welfare state, new forms of property in the shape of Government largess are developing, since the Government is increasingly assuming the role of regulator and CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 238 of 467 dispenser of social services and provider of a large number of benefits including jobs, contracts, licences, quotas, mineral rights etc. There is increasing expansion of the magnitude and range of Governmental functions, as we move closer to the welfare state, and the result is that more and more of our wealth consists of these new forms of property. Some of these forms of wealth may be in the nature of legal rights but the large majority of them are in the nature of privileges. The law has however not been slow to recognise the importance of this new kind of wealth and the need to protect individual interest in it and with that end in view, it has developed new forms of protection. Some interests in Government largess, formerly regarded as privileges, have been recognised as rights, while others have been given legal protection not only by forging procedural safeguards but also by confining, structuring and checking Government discretion in the matter of grant of such largess. The discretion of the government has been held to be not unlimited in that the Government cannot give largess in its arbitrary discretion or at its sweet will or on such terms as it chooses in its absolute discretion. There are two limitations imposed by law which structure and control the discretion of the government in this behalf. The first is in regard to the terms on which largess may be granted and the other, in regard to the persons who may be recipients of such largess.
11. So far as the first limitation is concerned, it flows directly from the thesis that, unlike a private individual, the State cannot act as it pleases in the matter of giving largess. Though ordinarily a private individual would be guided by economic considerations of self-gain in any action taken by him, it is always open to him under the law to act contrary to his self-interest or to oblige another in entering into a contract or dealing with his property. But the government is not free to act as it likes in granting largess such as awarding a contract or selling or leasing out its property. Whatever be its activity, the government is still the government and is, subject to restraints inherent in its position in a democratic society. The constitutional power conferred on the government cannot be exercised by it arbitrarily or capriciously or in an unprincipled manner; it has to be exercised for the public good. Every activity of the government has a public element in it and it must therefore, be informed with reason and guided by public interest. Every action taken by the government must be in public interest; the government cannot act arbitrarily and without reason and if it does, its action would be liable to be invalidated.
If the government awards a contract or leases out or otherwise deals with its property or grants any other largess, it would be CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 239 of 467 liable to be tested for its validity on the touch-stone of reasonableness and public interest and if it fails to satisfy either test, it would be unconstitutional and invalid.
12. Now what is the test of reasonableness which has to be applied in order to determine the validity of governmental action. It is undoubtedly true, as pointed out by Patanjali Shastri, J. in State of Madras v. V.G. Rau,[1952] SCR 597 that in forming his own conception of what is reasonable, in all the circumstances of a given case, it is inevitable that the social philosophy and the scale of values of the judge participating in the decision, would play an important part, but even so, the test of reasonableness is not a wholly subjective test and its contours are fairly indicated by the Constitution. The concept of reasonableness in fact pervades the entire constitutional scheme. The interaction of Articles 14, 19 and 21 analysed by this Court in Maneka Gandhi v. Union of India[1978] 2 SCR 621 clearly demonstrated that the requirement of reasonableness runs like a golden thread through the entire fabric of fundamental rights and, as several decisions of this Court show, this concept of reasonableness finds its positive manifestation and expression in the lofty ideal of social and economic justice which inspires and animates the directive principles. It has been laid down by this Court in E.P.
Royappa v. State of Tamil Nadu [1974] 2 SCR 348, and Maneka Gandhi case that Article 14 strikes at arbitrariness in State action and since the principle of reasonableness and rationality, which is legally as well as philosophically an essential element of equality or non-arbitrariness, is protected by this article, it must characterise every governmental action, whether it be under the authority of law or in exercise of executive power without making of law. So also the concept of reasonableness runs through the totality of Article 19 and requires that restrictions on the freedoms of the citizen, in order to be permissible, must at the best be reasonable. Similarly Article 21 in the full plenitude of its activist magnitude as discovered by Maneka Gandhi case, insists that no one shall be deprived of his life or personal liberty except in accordance with procedure established by law and such procedure must be reasonable, fair and just. The Directive Principles concretise and give shape to the concept of reasonableness envisaged in Articles 14, 19 and 21 and other Articles enumerating the fundamental rights. By defining the national aims and the constitutional goals, they setforth the standards or norms of reasonableness which must guide and animate governmental action. Any action taken by the Government with a view to giving effect to any one or more of CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 240 of 467 the Directive Principles would ordinarily, subject to any constitutional or legal inhibitions or other over-riding considerations, qualify for being regarded as reasonable, while an action which is inconsistent with or runs counter to a directive principle would prima facie incur the reproach of being unreasonable.
13. So also the concept of public interest must as far as possible receive its orientation from the directive principles. What according to the founding fathers constitutes the plainest requirement of public interest is set out in the directive principles and they embody par excellence the constitutional concept of public interest. If, therefore, any governmental action is calculated to implement or give effect to a directive principle, it would ordinarily, subject to any other overriding considerations, be informed with public interest.
14. Where any governmental action fails to satisfy the test of reasonableness and public interest discussed above and is found to be wanting in the quality of reasonableness or lacking in the element of public interest, it would be liable to be struck down as invalid. It must follow as a necessary corollary from this proposition that the Government cannot act in a manner which would benefit a private party at the cost of the State; such an action would be both unreasonable and contrary to public interest. The government, therefore, cannot, for example, give a contract or sell or lease out its property for a consideration less than the highest that can be obtained for it, unless of course there are other considerations which render it reasonable and in public interest to do so. Such considerations may be that some directive principle is sought to be advanced or implemented or that the contract or the property is given not with a view to earning revenue but for the purpose of carrying out a welfare scheme for the benefit of a particular group or section of people deserving it or that the person who has offered a higher consideration is not otherwise fit to be given the contract or the property. We have referred to these considerations to only illustratively, for there may be an infinite variety of considerations which may have to be taken into account by the government in formulating its policies and it is on a total evaluation of various considerations which have weighed with the government in taking a particular action, that the Court would have to decide whether the action of the government is reasonable and in public interest. But one basic principle which must guide the Court in arriving at its determination on this question is that there is always a presumption that the governmental action is CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 241 of 467 reasonable and in public interest and it is for the party challenging its validity to show that it is wanting in reasonableness or is not informed with public interest. This burden is a heavy one and it has to be discharged to the satisfaction of the Court by proper and adequate material. The Court cannot lightly assume that the action taken by the government is unreasonable or without public interest because, as we said above, there are a large number of policy considerations which must necessarily weigh with the government in taking action and therefore the Court would not strike down governmental action as invalid on this ground, unless it is clearly satisfied that the action is unreasonable or not in public interest. But where it is so satisfied, it would be the plainest duty of the Court under the Constitution to invalidate the governmental action. This is one of the most important functions of the Court and also one of the most essential for preservation of the rule of law. It is imperative in a democracy governed by the rule of law that governmental action must be kept within the limits of the law if there is any transgression the Court must be ready to condemn it. It is a matter of historical experience that there is a tendency in every government to assume more and more powers and since it is not an uncommon phenomenon in some countries that the legislative check is getting diluted, it is left to the Court as the only other reviewing authority under the Constitution to be increasingly vigilant to ensure observance with the rule of law and in this task, the court must not flinch or falter. It may be pointed out that this ground of invalidity, namely, that the governmental action is unreasonable or lacking in the quality of public interest, is different from that of mala- fides though it may, in a given case, furnish evidence of mala-fides.
15. The second limitation on the discretion of the government in grant of largess is in regard to the persons to whom such largess may be granted. It is now well settled as a result of the decision of this Court in Ramana D. Shetty v. International Airport Authority of India that the government is not free like an ordinary individual, in selecting the recipients for its largess and it cannot choose to deal with any person it pleases in its absolute and unfettered discretion. The law is now well established that the Government need not deal with anyone but if it does so, it must do so fairly without discrimination and without unfair procedure. Where the Government is dealing with the public, whether by way of giving jobs or entering into contracts or granting other forms of largess the government cannot act arbitrarily at its, sweet will and, like a private individual, deal with any person it pleases, but its action must be CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 242 of 467 in conformity with some standard or norm which is not arbitrary, irrational or irrelevant. The governmental action must not be arbitrary or capricious, but must be based on some principle which meets the test of reason and relevance. This rule was enunciated by the Court as a rule of administrative law and it was also validated by the Court as an emanation flowing directly from the doctrine of equality embodied in Article 14. The Court referred to the activist magnitude of Article 14 as evolved in E. P. Royappa v. State of Tamil Nadu and Maneka Gandhi case and observed that it must follow as a necessary corollary from the principle of equality enshrined in Article 14 that though the State is entitled to refuse to enter into relationship with anyone, yet if it does so, it cannot arbitrarily choose any person it likes for entering into such relationship and discriminate between persons similarly circumstanced, but it must act in conformity with some standard or principle which meets the test of reasonableness and non-
discrimination and any departure from such standard or principle would be invalid unless it can be supported or justified on some rational and non-discriminatory ground. (SCC p. 512, para 21) This decision has reaffirmed the principle of reasonableness and non-arbitrariness in governmental action which lies at the core of our entire constitutional scheme and structure."
(Emphasis supplied by me)
281. In Food Corpn. of India Vs. Kamdhenu Cattle Feed Industries (1993) 1 SCC 71, Justice J.S. Verma speaking for the Bench observed as under: (SCC p. 76, paras 7 and 8) "In contractual sphere as in all other State actions, the State and all its instrumentalities have to conform to Article 14 of the Constitution of which non-arbitrariness is a significant facet. There is no unfettered discretion in public law. A public authority possesses powers only to use them for public good. This imposes the duty to act fairly and to adopt a procedure which is `fairplay in action'. Due observance of this obligation as a part of good administration raises a reasonable or legitimate expectation in every citizen to be treated fairly in his interaction with the State and its instrumentalities, with this element forming a necessary component of the decision making process in all State actions. To satisfy this CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 243 of 467 requirement of non-arbitrariness in a State action, it is, therefore, necessary to consider and give due weight to the reasonable or legitimate expectations of the persons likely to be affected by the decision or else that unfairness in the exercise of the power may amount to an abuse or excess of power apart from affecting the bona fides of the decision in a given case. The decision so made would be exposed to challenge on the ground of arbitrariness. Rule of law does not completely eliminate discretion in the exercise of power, as it is unrealistic, but provides for control of its exercise by judicial review.
12. The mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirement of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness, a necessary concomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision making process. Whether the expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case. Whenever the question arises, it is to be determined not according to the claimant's perception but in larger public interest wherein other more important considerations may outweigh what would otherwise have been the legitimate expectation of the claimant.
A bona fide decision of the public authority reached in this manner would satisfy the requirement of non-arbitrariness and withstand judicial scrutiny. The doctrine of legitimate expectation gets assimilated in the rule of law and operates in our legal system in this manner and to this extent."
(Emphasis supplied by me)
282. In Navjyoti Coop. Group Housing Society Vs. Union of India AIR 1993 SC 155 Hon'ble Supreme Court held as under:
"In the aforesaid facts, the Group Housing Societies were entitled to 'legitimate expectation' of following consistent past practice in the matter of allotment, even though they may not have any legal right in private law to receive such treatment. The existence of 'legitimate expectation' may have a number of CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 244 of 467 different consequences and one of such consequences is that the authority ought not to act to defeat the 'legitimate expectation' without some overriding reason of public policy to justify its doing so. In a case of 'legitimate expectation' if the authority proposes to defeat a person's 'legitimate expectation' it should afford him an opportunity to make representations in the matter. In this connection reference may be made to the discussions on 'legitimate expectation' at page 151 of Volume 1(1) of Halsbury's Laws of England - Fourth Edition (Re-issue). We may also refer to a decision of the House of Lords in Council of Civil Service Union v. Minister for the Civil Service. It has been held in the said decision that an aggrieved person was entitled to judicial review if he could show that a decision of the public authority affected him of some benefit or advantage which in the past he had been permitted to enjoy and which he legitimately expected to be permitted to continue to enjoy either until he was given reasons for withdrawal and the opportunity to comment on such reasons.
It may be indicated here that the doctrine of 'legitimate expectation' imposes in essence a duty on public authority to act fairly by taking into consideration all relevant factors relating to such 'legitimate expectation'. Within the conspectus of fair dealing in case of 'legitimate expectation', the reasonable opportunities to make representation by the parties likely to be affected by any change of consistent past policy, come in. We, have not been shown any compelling reasons taken into consideration by the Central Government to make a departure from the existing policy of allotment with reference to seniority in Registration by introducing a new guideline."
283. In the case Sudhir Shantilal Mehta Vs. CBI (2009) 8 SCC 1, while dealing with certain directions issued by RBI to public sector banks, Hon'ble Supreme Court observed as under:
67. It is one thing to say that any circular letter issued by the Reserve Bank of India being not within the public domain would not be law but it would be another thing to say that it did not contain any direction of law so as to attract the liability in terms of Section 405 of the Penal Code. Lawful directions were issued by the Reserve Bank of India. The circular letter was meant for all scheduled banks. The authorities and/or officers running the affairs of the scheduled banks therefore were aware thereof. If it CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 245 of 467 is binding on the banks, it would be binding on the officers.
68. Any act of omission or commission on the part of any authority of the Bank would amount to acting in violation of any direction of law. A direction of law need not be a law made by the Parliament or a Legislature; it may be made by an authority having the power therefor; the law could be a subordinate legislation, a notification or even a custom.
(Emphasis supplied by me)
284. In the case Rajiv Kumar Vs. State of U.P. (2017) 8 SCC 791, Hon'ble Supreme Court observed as under:
"On appreciation of evidence and materials on record, both the trial court and the High Court recorded concurrent findings that the appellants acted in clear abuse of position, Plot No.27 in the developed Sector-14A was converted from guest house to 'residential' and in violation of the norms and circulars, the same was allotted to the appellant to gain pecuniary advantage to him (Rajiv Kumar). The concurrent findings recorded by the courts below are well balanced and we do not find any reason warranting interference."
(Emphasis supplied by me)
285. At this stage, it would be however pertinent to mention once again that in the present proceedings this Court is not carrying out any judicial review of the actions be that of MOC officers or that of the Screening Committee. What is being examined is whether the actions of accused public servants i.e. that of MOC officers involved in the process of allocation of Moira-Madhujore coal block in favour of company M/s VMPL had any element of malafide intention i.e. whether there was any culpability in the said actions or not. In the case Sudhir Shantilal Mehta (Supra), Hon'ble Supreme Court while CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 246 of 467 examining the actions of certain bank officers who acted in violation of guidelines issued by RBI also dealt with the issue of criminal liability of the officers and interalia observed as under in para 64:
"The act of criminal breach of trust per se may involve a civil wrong but a breach of trust with an ingredient of mens rea would give rise to a criminal prosecution as well."
286. It is in the light of aforesaid well settled proposition of law that it needs to be seen as to whether the guidelines issued by MOC governing allocation of captive coal blocks were binding upon the MOC officers and also upon the Screening Committee or not. As earlier also mentioned, the guidelines so issued by MOC and as were also uploaded on the website of MOC for information of the public at large were clearly issued to regulate the exercise of discretion by the MOC officers and that of the Screening Committee in the matter of allocation of captive coal blocks. The purpose was to rule out any element of arbitrariness in the said exercise of discretion. The said guidelines undisputedly provided the logical and reasoned steps as to how the MOC officers and the Screening Committee shall undertake the decision making process vide which allocation of captive coal blocks in favour of private applicant companies will be made. Yet another important purpose of issuance of guidelines was also to inform the public at large as to how the exercise of allocation of captive coal blocks shall be undertaken and that the discretion of Ministry of Coal or that of Screening Committee was not unfettered. It was thus represented to the public at large that MOC will undertake the said exercise fairly without discrimination and by following a fair CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 247 of 467 procedure.
287. At this stage, it would be now also worthwhile to refer to the following case law as were relied upon by Ld. Counsels for the accused public servants while arguing that the guidelines so issued by MOC were not binding as they did not have the force of law.
(1) G.J. Fernandez vs. State of Mysore [MANU/SC/0050/1967] (2) Chief Commercial Manager, South Central Railway, Secunderabad vs. G. Ratnam [MANU/SC/7843/2007] (3) R. Sai Bharathi V. J. Jayalalitha and Ors. MANU/ SC/ 0956/ 2003 (4) Gulf Goans Hotels Company Ltd. Vs. Union of India [MANU/SC/0848/2014] A bare perusal of the aforesaid case law(s) however shows that in all these matters the enforcement of the guidelines or regulations issued by the Department were sought by a third person claiming himself to be either a victim or a person affected by the decision of the public servants concerned. It is in that context Hon'ble Supreme Court observed that since the said guidelines did not have the force of law so no right vest in a third party to seek enforcement of said guidelines and regulations. However at the same time, Hon'ble Supreme Court also observed that the department concerned may however initiate departmental proceedings against its officers responsible for following the said guidelines or to act in accordance with the said guidelines, if there is any act of omission or neglect to comply with the said guidelines.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 248 of 467
288. From the aforesaid observations, it is thus clear that in so far as the officers of the department which issued those guidelines are concerned they were clearly bound to follow the said guidelines. The said officers can always be punished by the Government or department concerned for violation of the said guidelines by them. It is altogether a different matter that such a violation of the guidelines may in a given case entails initiation of departmental enquiry only but at the same time the violation of said guidelines in a given case may also show existence of mensrea on the part of public servants concerned and in which case penal action may also be initiated against them.
289. Thus in the light of aforesaid circumstances, I may state that in so far as the guidelines issued by MOC governing allocation of captive coal blocks are concerned, the same though may not be termed as law under Article 13 of the Constitution of India but were clearly binding upon the accused MOC officers. It does not lie in the mouth of accused MOC officers to say that we were not bound by the said guidelines since they did not have the force of law. The said guidelines clearly sought to control the exercise of discretion by MOC and of the Screening Committee in disbursing the larges i.e. allocation of nationalized natural resources (Coal) of the country by way of allocation of captive coal blocks and it was represented by MOC to the public at large as to how the applications are to be submitted or how the same will be dealt with by MOC and by the Screening Committee. It clearly casted a mandatory duty upon the CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 249 of 467 accused public servants to act in accordance with the said guidelines. By no stretch of imagination, the accused MOC officers can claim that even though the guidelines were issued by them intimating the public at large as to how captive coal blocks shall be allocated but while exercising the said discretion they were not bound to follow the said guidelines. In fact the said guidelines in no way took away the discretion either from the MOC officers or from the Screening Committee but simply regulated the exercise of such discretion so vested in them, lest their actions may venture into the arena of unreasonableness, arbitrariness or in any sort of illegality.
290. The guidelines clearly mandated certain eligibility conditions and certain requirements to be fulfilled by the applicant companies, failing which, it was mentioned in the guidelines itself that the applications will be rejected. It was also clarified in the guidelines itself as to in what manner the interse priority of various competing applicant companies who have applied for any given coal block shall be arrived at. In fact mentioning of these very factors in the guidelines were the prime reasons for various applicant companies to inflate their various claims so as to show a better status/stage of preparedness qua their proposed end use project. A legitimate expectation thus arose in the mind of various applicant companies that their applications will be considered objectively and in a transparent manner in accordance with the guidelines so issued by MOC. In these circumstances it can not be claimed by accused MOC officers that they were not bound by the guidelines so issued by MOC CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 250 of 467 governing allocation of captive coal blocks and as were also uploaded on the website of MOC.
291. One may however argue that the doctrine of legitimate expectation is a principle of Administrative Law having no application in the present proceedings. However, it would be worthwhile to clarify that in so far as the issue raised by Ld. Counsels for the accused persons that the guidelines were not having any binding force of law is concerned, the matter certainly fell exclusively in the domain of Administrative Law and to that extent while examining the said issue it is completely justified that the doctrine of legitimate expectation is held to be applicable.
292. Thus having concluded that the guidelines so issued by MOC were binding upon the MOC officers as well as upon the Screening Committee, I shall now proceed further to examine as to whether there was any violation of the guidelines in the processing of applications in MOC i.e. whether the applications were checked for their eligibility and completeness or not. It shall also be examined as to whether accused MOC officers were aware of the process undertaken in MOC regarding processing of applications before the same were considered by the Screening Committee. If the answer to the aforesaid question is in affirmative then it will be examined as to whether the said violation entails any culpability on the part of accused MOC officers or not.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 251 of 467 G (iv) Whether in the processing of applications in MOC there was any violation of guidelines governing allocation of captive coal blocks i.e. whether the applications were checked for their eligibility and completeness or not.
293. As earlier also mentioned the guidelines issued by MOC clearly mandated under the title "Processing of application" that the applications received in MOC in five copies after being checked for their eligibility and completeness would be sent to the Administrative Ministries and State Governments concerned for their evaluation and recommendation. The guidelines also specified certain documents which were required to be annexed by every applicant company alongwith its applications. It was also stated that applications without the said accompaniments would be treated as incomplete and shall be rejected. Thus in the light of aforesaid nature of guidelines, it becomes clear that before copies of the applications were to be sent to administrative Ministries/State Governments, the same were required to be checked in MOC as regard their completeness and eligibility. As regard eligibility, the primary requirement for every applicant was that it should be a company registered under Indian Companies Act. The second requirement of being eligible was that the company should be engaged either in generation of power or production of iron or steel or in production of cement. After any applicant company qualified this first stage of eligibility its application was required to be checked for completeness. As earlier also mentioned for an application to be complete in accordance with guidelines all the documents as were specified in the guidelines CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 252 of 467 ought to have been annexed with the application.
294. It is qua this aspect of checking that there has been considerable dispute all through the trial. PW-1 V.S. Rana though initially stated that the applications were checked for their completeness but subsequently stated that only a cursory glance was given to the applications. However, subsequently during the course of his cross-examination he stated that only the availability of processing fee i.e. demand draft of Rs. 10,000/- was checked. Similar was the claim of DW-7 Prem Raj Kuar the then Section Officer, CA-I Section, MOC who was examined in his defence by A-5 K.S. Kropha. In his examination-in-chief he stated that at the time of receiving of applications, the names of the companies, their address, the name of coal blocks applied for, the state where the said coal blocks were situated beside the availability of draft of Rs. 10,000/- with date of issuance of draft were only checked. He also stated that the aforesaid details were also recorded in a register and it was also checked as to whether the applications have been submitted in five sets or not. He also deposed that subsequently the applications were segregated state-wise, end use-wise and administrative Ministry-wise. To a specific leading question put to him in his examination-in-chief by Ld. Counsel Sh. Rahul Tyagi for A-5 K.S. Kropha (as was permitted by the Court) he specifically stated that CA-I Section had at no point of time checked the completeness and eligibility of the applications so received. Subsequently in his cross-examination as was conducted by Ld. Counsel for A-4 H.C. Gupta, he again stated that it was not CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 253 of 467 checked as to whether the applications so received were accompanied with all the documents as were required to be annexed in terms of the guidelines issued by MOC or not. He however stated that in each of the applications the applicants had stated that all the documents have been enclosed by them with their applications.
295. In this regard reference was however made by Ld. Sr. P.P. Sh. Sanjay Kumar to various communications sent by MOC to different State Governments/ Administrative Ministries and to CMPDIL enclosing therewith copies of various applications concerning them. It was pointed out that in all such communications it was clearly mentioned that the applications alongwith documents (wherever submitted by applicant) may be examined and comments thereon may be furnished to the Ministry by 31.03.2007. [Some such communications which were identically worded and referred to by Ld. Sr. P.P. are Ex. PW 1/G-1; Ex. PW 1/G-2; Ex. PW 1/G-3; Ex. PW 1/G-4 and Ex. PW 1/G-5 [All communications are available in file Ex. P-13 (Colly) (D-17) except that Ex. PW 1/G-5 is part of file Ex. P-14 (Colly) (D-18)] and vide these communications, copy of applications were sent to State Government of West Bengal, CMPDIL, State Government of Bihar, DIPP and Ministry of Steel respectively.] For a ready reference one such letter vide which copy of various applications were sent to State Government of West Bengal Ex. PW 1/G-1 [At page 183 in file Ex. P-13 (Colly) (D-17)] has been reproduced here under:
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 254 of 467 No. 13016/65/2006-CA-I Government of India Ministry of Coal .......
New Delhi, dated 19th February, 2007.
28th To Chief Secretary, Govt. of West Bengal Kolkata Subject:- Application for allocation of coal blocks in response to advertisement published through newspaper.
Sir, I am directed to forward herewith applications received for allocation of captive coal blocks(s) for meeting the requirement of end-use plants for manufacture of iron/cement/generation of power. A list giving the names of the applicants and the blocks/s sought is enclosed. As per guidelines issued by Ministry of Coal, each applications are required be accompanied with documents:-
i) Application form in the prescribed format.
ii) Certificate of registration of the company.
iii) Documents showing the person/s who has/have been authorized
to sing on behalf of the applicant company.
iv) Certified copy of the Memorandum and Articles of Association of
the applicant company.
v) Audited Annual Accounts/reports of the last 3 years.
vi) Project report in respect of the end use plant.
vii) Detailed schedule of implementation for the proposed end use
project and the proposed coal mining development projects.
2. Applications alongwith documents mentioned above (wherever submitted by applicant) may be examined and comments thereon may please be furnished to this Ministry by 31.3.2007 Yours faithfully, Sd/-
(V.S. Rana) o/c Under Secretary to the Govt. of India.
Encl: As above - 4 Boxes."
(Emphasis supplied by me)
296. It has been thus argued by Ld. Sr. P.P. Sh. Sanjay Kumar that had the applications been checked for their completeness in MOC before copies thereof were sent to State Governments and CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 255 of 467 Administrative Ministries then it would not have been written by PW-1 V.S. Rana in his communication to various State Governments and to Administrative Ministries that the applications alongwith documents mentioned above wherever submitted by applicant company may be examined.
297. Ld. Sr. P.P. also pointed out that in one other case pertaining to 36th Screening Committee itself titled CBI Vs. M/s KSSPL & Ors. which has since been decided by this Court vide judgment dated 19.05.2017, these very accused MOC officers had themselves stated in their deposition u/s 315 Cr.PC that the applications were not checked for their eligibility and completeness in MOC. Though they had also claimed that at the relevant time, it was never brought to their notice that the applications have not been checked for their eligibility and completeness in terms of the guidelines issued by MOC.
298. On the other hand Ld. defence Counsels for accused MOC officers beside relying upon the deposition of PW-1 V.S. Rana also relied upon the deposition of PW-12 N.R. Dash stating that when the comments of Ministry of Steel were sent to MOC qua various applicant companies then in the said communication dated 06.12.07 itself it was stated that 696 complete applications were received from MOC. It was thus submitted that from the over all facts and circumstances of the case and the deposition of the witnesses it is thus clear that the applications were indeed checked for their completeness and eligibility and mistake, if any in checking of the CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 256 of 467 applications was primarily on account of mistake of CA-I section officials only.
299. Ld. Defence Counsels also referred to certain statements u/s 161 Cr.PC of MOC officials as were recorded by CBI during the course of investigation of other coal block allocation matters that at the time of 34th Screening Committee meeting the applications so received in MOC were checked for their completeness in MOC itself before copies thereof were sent to various stakeholders. It was thus submitted that as the witnesses have stated that the process followed in MOC at the time of 35th and 36th Screening Committee was also stated to be as per the past practice so it must be taken that the applications were indeed checked for their completeness in MOC itself before copies thereof were sent to various stakeholders.
My Discussion
300. Certainly PW-1 V.S. Rana initially stated in his deposition that the applications were checked for their eligibility and completeness but at a later stage of his deposition itself, he qualified the said statement by stating that only the availability of demand draft of Rs. 10,000/- towards processing fee was checked. It is however also true that the words mentioned in the communications such as Ex. PW- 1/G-1, Ex. PW-1/G-2, Ex. PW-1/G-3, Ex. PW-1/G-4 and Ex. PW 1/G-5 vide which copies of applications were sent to various stakeholders, it was stated that the documents, wherever submitted by the applicant company may be checked, does goes to suggest CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 257 of 467 that the applications have not yet been checked for their eligibility and completeness. On the other hand PW-12 N.R. Dash however did state in his communication dated 06.12.07 that 696 complete applications were received from MOC and the same were examined and comments of Ministry of Steel were being accordingly provided to MOC. At the same time DW-7 Prem Raj Kuar however stated that the applications were not checked in MOC for their eligibility and completeness.
301. Thus in view of the aforesaid nature of deposition of various prosecution witnesses coupled with that of DW-7 Prem Raj Kuar, examined on behalf of A-5 K.S. Kropha himself, the only course of action left before this Court is to test the veracity of the claims so made by the various witnesses in the light of documentary evidence available on record.
302. As already discussed and demonstrated while discussing the role of private parties, the applicant company M/s VMPL had not annexed the audited annual accounts/reports of M/s Impex Group of Companies alongwith its application even though the financial strength of Impex Group was mentioned in the application. At the same time it has also been discussed and concluded that alongwith the application no project report in respect of proposed end use plant was annexed by the company M/s VMPL as was required to be annexed in terms of the guidelines issued by MOC. Thus it has been clearly established and concluded in the earlier part of the judgment that the application of A-1 M/s VMPL was incomplete in terms of the CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 258 of 467 guidelines issued by MOC. Thus as per the guidelines, the application of A-1 M/s VMPL was per-se liable to be rejected in MOC itself being incomplete. However for reasons best known to MOC officers, the application of M/s VMPL was not rejected, if at all any checking of the applications for their completeness was carried out before copies thereof were sent to various stakeholders. It is in these circumstances, the deposition of PW-1 V.S. Rana or of PW-12 N.R. Dash or that of DW-7 Prem Raj Kuar needs to be examined.
303. The foremost question which however arises for consideration is as to whose duty was it to check the applications for their eligibility and completeness. Once again Ld. Counsels for the accused public servants have relied upon the deposition of PW-1 V.S. Rana who stated in his deposition that it was the responsibility of CA-I Section to check the applications for their eligibility and completeness. They have also claimed that CA-I Section officials never brought to their knowledge that the applications have not been checked for their eligibility or completeness.
304. Certainly the accused persons are right that it was the responsibility of CA-I Section to check the applications for their eligibility and completeness but this aspect needs to be viewed from yet another angle also i.e. in the light of provisons of Manual of Office Procedure.
305. As earlier also mentioned all through the entire trial the accused public servants have heavily relied upon the provisions of CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 259 of 467 Manual of Office Procedure stating that the same were required to be mandatorily followed. Though I have also already discussed and demonstrated at length in the earlier part of the present judgment that it would have been an ideal situation if the working of MOC in dealing with the applications post their receipt was in accordance with provisions of Manual of Office Procedure but unfortunately it was not so. I have also discussed in detail that PW-1 V.S. Rana was right in saying that in routine day to day functioning, the procedure was not mandatorily followed. I have also demonstrated that even accused MOC officers themselves had not followed the provisions of Manual of Office Procedure not only in their routine day to day functioning but even with regard to important matters such as calling of Screening Committee meeting. The present circumstance regarding checking of applications for their completeness and eligibility is yet another instance where the provisions of Manual of Office Procedure were once again not followed by senior MOC officers.
306. Admittedly the guidelines issued by MOC under the title "Where to apply", clearly specified that the applications should be addressed to Sh. Sanjeev Mittal, Director, CA-I. Thus if the claim of Ld. Counsels for accused MOC officers is presumed to be true that receipt of applications itself and their subsequent processing ought to have been dealt with under the Manual of Office Procedure then since the applications were specifically addressed in the name of Director, CA-I so there ought to be specific orders by him to CA-I Section directing them to carry out processing of the applications in CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 260 of 467 accordance with the guidelines. However once again the files of MOC are completely silent in this regard. What has been argued on behalf of accused public servants and as has been admitted by PW-1 V.S. Rana also that since CA-I Section was dealing with coal block allocation matters so the applications were to be processed by them only. However the point being emphasized over here is that neither the guidelines specified as to who shall carry out checking of applications once they are received in MOC nor any order has been subsequently passed in the files of MOC that it shall be the responsibility of CA-I Section, MOC. Thus it is yet another instance where the provisions of Manual of Office Procedure have not been complied with by senior MOC officers themselves.
307. The sum and substance of the aforesaid discussion is that even if it is presumed for the sake of arguments that in terms of the guidelines applications were checked for their eligibility and completeness in MOC before copies thereof were sent to various stakeholders then also the said exercise was not properly carried out. The application of A-1 M/s VMPL was clearly incomplete and ought to have been rejected at the initial stage itself in accordance with the guidelines issued and approved by MOC. These circumstances thus once again show as to how casual and perfunctory was the working of MOC at all levels in the coal block allocation process.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 261 of 467 G (v) Whether senior MOC officers were responsible for ensuring checking of applications for their eligibility and completeness in terms of the guidelines and also whether accused MOC officers were aware of the process undertaken in MOC in processing of applications before they were considered by the Screening Committee.
308. Irrespective of the carelessness and negligence, if any, shown by the officials of CA-I Section in carrying out the checking of applications for their eligibility and completeness, if at all any such exercise was undertaken (Though CA-I Section officials have denied having carried out any such exercise at all) then also can it be claimed by senior MOC officers that they were in no way responsible for ensuring compliance with the guidelines issued by them. Though PW-1 V.S. Rana has claimed that the senior officers of MOC were verbally informed by them that no checking of applications has been carried out qua their eligibility and completeness but the accused MOC officers have categorically denied having received any such oral information/intimation from PW-1 V.S. Rana. The sole ground on which they have rested their aforesaid argument is once again the provisions of Manual of Office Procedure which states that oral communication, if any made should be duly reduced into writing and should be got approved from the concerned officers.
309. However I have already discussed and demonstrated at length that provisions of Manual of Office Procedure were not followed in routine day to day functioning in MOC. Moreover my subsequent discussion will also show that on 11.05.2007 when a CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 262 of 467 meeting of Screening Committee was called in the office chamber of Secretary, Coal then at least on that day, if not before the senior MOC officers acquired knowledge as to what all steps have been taken in MOC till then qua processing of applications. A bare perusal of the minutes of said meeting clearly proves the said fact beyond any reasonable doubt.
310. As earlier also discussed, a meeting of the Screening Committee though comprising of representatives of Administrative Ministries and that of CIL/CMPDIL officers only took place in the office chamber of Secretary Coal i.e. A-4 H.C. Gupta on 11.05.2007. [The representatives of State Governments were admittedly not invited to the said meeting.] However before I advert on to discuss the contents of the minutes of said meeting, it will be worthwhile to reproduce the said minutes alognwith attendance sheet of the officers who attended the said meeting.
The minutes Ex. PW 1/N-3 (Colly) (D-18) of Screening Committee meeting held on 11.05.2007, read as under:-
"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 CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 263 of 467 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 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 CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 264 of 467 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."
"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
(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."
(Emphasis supplied by me)
311. However in the same file at page number 105-106, the draft minutes Ex. PW1/N-2 of the said meeting are also available in which CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 265 of 467 certain corrections were admittedly made in his own hand by A-5 K.S. Kropha.
312. A bare perusal of the final approved minutes Ex. PW-1/N-3 (colly) (D-18) of the meeting held on 11.05.2007 shows that Secretary Coal, i.e. A-4 H.C. Gupta while opening the discussion in the meeting 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 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 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 CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 266 of 467 investment required for projected capacities of end use plants. It is also clear from the minutes that the sole thrust of the entire discussion in the meeting was to put in place a transparent and objective mechanism qua allocation of captive coal blocks. In fact during the course of present trial also it has been the consistent stand of accused MOC officers that all through the entire process in MOC they have been insisting for putting in place a transparent and objective mechanism. However as my subsequent discussion will show that in fact no heed was paid either to transparency or to objectivity in the entire coal block allocation process by the accused MOC officers and especially while choosing to recommend M/s VMPL for allocation of a captive coal block.
313. However the purpose of reproducing and referring to the minutes of meeting held on 11.05.2007 Ex. PW 1/N-3 (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. It is only the minutes Ex. PW 1/N-3 (Colly) of the meeting held on 11.05.2007 which for the first time speaks about it. The minutes also CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 267 of 467 says that Secretary Coal also gave a brief account of details of applications received. The onus thus remained on accused MOC officers only to show as to how and in what manner the information regarding total number of applications received or details thereof came to their knowledge and which were shared by them with the other members of the Screening Committee present in the said meeting. Clearly as per the attendance sheet of the officers who attended the said meeting, all the three accused public servants 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) in the said meeting. The role of Sh. P.R. Mandal, Advisor (P) in the entire coal block allocation process has been however neither 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-1 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-1 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 CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 268 of 467 about the total number of applications received and action taken so far on the applications or other details of the applications. Thus the three accused MOC officers 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 on any date prior thereto.
314. On the other hand the three accused MOC officers have rather claimed that the meeting held on 11.05.2007 went as per the agenda of the meeting, copy of which has been found in the files of Ministry of Steel. In the cross-examination of PW-1 V.S. Rana, the copy of one such agenda note Ex. PW 1/DX-7 was put to him by Ld. Counsel for accused MOC officers. However as already mentioned and discussed at length that no such agenda note was found in the files of MOC and even the office memorandum dated 07.05.2007 Ex. PW 1/N-1 (D-18) whereby various members of Screening Committee were invited to attend the meeting of Screening Committee on 11.05.2007, was also completely silent that any such agenda note is either being enclosed with the notice or will be subsequently sent. In fact there is no mention at all of any agenda note in the said office memorandum. Similarly it was also found that even in the Ministry of Steel files there was no noting or communication from MOC which could show that any agenda note has been received from MOC with respect to meeting held on 11.05.2007.
315. Thus, in the absence of written record regarding preparation of any such agenda note for the meeting held on 11.05.2007 and its CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 269 of 467 non-availability in the files of MOC and the office memorandum dated 07.05.07 vide which members were invited for the meeting being completely silent about any such agenda note being enclosed or to be sent separately so no presumption can be raised as to the preparation or availability of any such agenda note. In fact no question at all was asked from PW-12 N.R. Dash in his cross- examination on behalf of accused MOC officers regarding the circumstances in which such an agenda note came to be available in the files of Ministry of Steel.
316. In this regard, I may however also mention that even if it is presumed that such an agenda note was prepared in MOC for the Screening Committee meeting to be held on 11.05.2007 then there is also no noting in the files of MOC which could show as to who initiated the process of preparation of said agenda note. PW-1 V.S. Rana has claimed complete ignorance in this regard when he was extensively cross-examined by Ld. Defence Counsel regarding the preparation of any such agenda note. It is also not evident from the files of MOC as to on whose instructions the said agenda note was prepared or who approved the final agenda note in MOC. As already mentioned the meeting dated 11.05.2007 of the Screening Committee was not proposed by CA-I Section and the note dated 07.05.07 in this regard was put up by CA-I Section on the telephonic instructions of A-6 K.C. Samria, Director, CA-I only. Thus it can not be presumed by any stretch of imagination that CA-I Section on its own could have prepared any such agenda note. Moreover even if such CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 270 of 467 an agenda note is presumed to have been prepared by CA-I Section officials then also the purpose of calling the said meeting must have been told to them by the accused MOC officers only. The senior officers of MOC must have told officials of CA-I Section as to what all matters are to be incorporated in the agenda note. Thus these circumstances further show that accused MOC officers did undertake deliberations with CA-I Section officials regarding the process undertaken till then or is to be undertaken further with respect to the applications so received in MOC. This aspect also shows that even though there is no written note in the files of MOC as to how many applications in all were received but the said fact was verbally brought to the knowledge of accused MOC officers by CA-I Section officials. PW-1 V.S. Rana, Under Secretary, CA-1 Section has however categorically stated in his cross-examination that course of action to be undertaken pursuant to receipt of applications was decided in a meeting held in the office of Joint Secretary, Coal. He stated that all further actions were thus taken in accordance with the directions given in the said meeting. Though Ld. Defence counsels denied that any such meeting ever took place primarily on the ground that neither any noting nor any minutes of any such meeting exists on record but PW-1 V.S. Rana reiterated his earlier stand that no record is usually kept or prepared of such internal meetings. I have also no reason to doubt the aforesaid claim of PW-1 V.S. Rana especially in view of the nature of functioning of MOC as has been discussed and demonstrated at length in the earlier part of the judgment. Not only it is difficult to presume that the entire matter relating to receiving of CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 271 of 467 applications and their subsequent processing in MOC was being dealt exclusively at the level of CA-I Section or by PW-1 V.S Rana, Under Secretary, CA-I Section only or that neither Secretary, Coal, nor Joint Secretary, Coal or even Director CA-I in whose name the applications were received were not aware of the steps being taken in MOC in this regard. On the other hand if that was the situation than it is all the more strange that none of the three senior MOC officers took care to even ascertain as to what all steps are being taken by CA-I Section in this regard.
317. My aforesaid conclusion further gets fortified from the noting dated 20/12/06 at note sheet page 6 in MOC file Ex. P-13 (Colly) (D-
17) which read as under:
"As instructed, we may send request to office of Coal Controller for deputing at least four officials for collecting information. This is in accordance with decision taken by Competent authority during the finalisation of course of action for receiving application.
US (CA) Sd/-
R.N.Singh
20/12/06
Sd/-
V.S. Rana
SO (CA-I)
20/12/2006"
(Emphasis supplied by me)
318. PW-1 V.S. Rana was in fact extensively cross-examined on behalf of accused public servants including as regard aforesaid CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 272 of 467 noting dated 20.12.2006. He however stated that the word "competent authority" referred to in the note dated 20.12.2006 referred to Joint Secretary, Coal. He also stated that though as per Manual of office Procedure the note dated 20.12.2006 should have travelled to the desk of concerned officer who gave the instructions but he reiterated that in routine day to day functioning provisions of Manual of Office Procedure were not mandatorily followed. He also stated that note dated 20.12.2006 did not travel upward from his desk as there were directions for urgent action. I have also no reason to doubt the correctness of the said noting being of the contemporary period and recorded in the routine course of discharge of official duties by officials of CA-I Section.
319. In fact there is one more communication available in file Ex. P-37 (Colly) (D-44) of CMPDIL dated 11.04.2007 addressed to Sh. A.K. Wahi, General Manager, CMPDIL and sent by Sh. R.N. Singh, Section Officer, CA-I Section, MOC wherein there is again reference to discussions held in the chamber of Sh. K.S. Kropha, Joint Secretary (Coal). The contents of the letter shows that the discussion being referred to was with respect to processing of applications only or the course of action to be adopted.
The said letter dated 11.04.2007 (available at page 5 of D-44) read as under:
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 273 of 467 "No. 13016/65/2006-CA-I Government of India Ministry of Coal ......
New Delhi, the 11th April, 2007 To Shri A.K. Wahi, General Manager (ES), C.M.P.D.I.L., Gondwana Place, Kanke Road - 834008.
Sir, As per the discussion held in the Chamber of Shri K.S. Kropha, Jt. Secretary (Coal), I am sending application forms (block-wise) and CDs received from the applicants who have applied for allocation of coal blocks in power sector for preparation of the data base. The application forms in respect of steel and other (block-wise) alongwith CDs will be sent soon.
Yours faithfully, Sd/-
(R.N. Singh) Section Officer"
320. Thus from the aforesaid circumstances it is clear that discussion did take place in MOC involving senior officers so as to decide the course of action qua the applications being received in MOC or their subsequent processing.
321. It has been however argued that A-6 K.C. Samria was assigned the charge of CA-I Section in March 2007 only and the applications were already sent to various stakeholders in the month CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 274 of 467 of February 2007 itself i.e. during the tenure of the then Director CA- 1, Sh. Sanjeev Mittal and thus A-6 K.C. Samria, can not be held liable for the same.
I find myself in complete agreement with the said submission and certainly no liability is being fixed upon A-6 K.C. Samria for the period during which he was not holding the charge of CA-I Section.
322. Be that as it may, I now proceed further with the assumption that it was the responsibility of CA-I Section to carry out the checking of applications qua their eligibility and completeness. A question however needs to be kept in mind that as the applications were received in the name of Director, CA-I, so even though he may not be expected to carry out checking of applications himself qua their eligibility and completeness but can he disown his responsibility of even ensuring compliance with the guidelines by CA-I Section. In my considered opinion, the answer to the same is a big "NO".
Moreover we have a situation where A-6 K.C. Samria despite being Deputy Secretary/Director CA-I Section (at least from the month of March 2007 onwards) has completely washed off his hands from the entire process by simply stating that as the applications were already dispatched to various stakeholders in February 2007 itself and he took over the charge of CA-I Section in March 2007 so he was not in any manner responsible for the checking of applications in MOC for their eligibility and completeness.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 275 of 467
323. This certainly can not be the situation. In fact the files of MOC shows that applications to Ministry of Power were subsequently sent i.e. during the period when A-6 K.C. Samria was holding the charge of CA-I Section. The record also shows that A-6 K.C. Samria was also regularly involved even otherwise with CA-I Section in making requests to the office of Coal Controller or to CIL to depute certain officials with respect to coal block allocation process. In the cross- examination of PW-1 V.S. Rana as was carried out on behalf of A-4 H.C. Gupta some such letters were put to him by Ld. Defence Counsel. A letter dated 02.08.2007 Ex. PW 1/DX-12 was thus found to have been issued under the signatures of A-6 K.C. Samria to CIL requesting for deputing two financial experts for scrutinizing financial details of applicant companies. Yet another letter dated 02.08.2007 Ex. PW 1/DX-13 was sent to Coal Controller by A-6 K.C. Samria under his own signatures requesting for making available services of four officials for scrutinizing applications. PW-1 V.S. Rana in his cross-examination further stated that yet one other letter dated 31.05.2007 Ex. PW 1/DX-9 was though sent by him under his own signatures to the Coal Controller requesting to depute three officials with respect to Screening Committee meeting proposed to be held in the third week of June 2007 but pointed out that the said letter was sent by him pursuant to the telephonic discussions which A-6 K.C. Samria had with the office of Coal Controller and the said discussion was duly referred to by him in his said communication itself.
324. PW-1 V. S. Rana also deposed that when in the month of CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 276 of 467 January/February 2007 certain officials of the office of Coal Controller had come to MOC to assist in the process then before their initial stay of 10 days was about to expire, A-5 K.S. Kropha, Joint Secretary, Coal had visited them at Scope Minar, Laxmi Nagar where they were carrying out segregation work i.e. segregating the applications state- wise, end-use-wise, Administrative Ministry-wise etc and he told them to extend their stay in Delhi as the work assigned to them was not yet completed. In fact PW-7 Manas Kumar De, Assistant of the office of Coal Controller, Kolkata who was amongst the four officials carrying out the segregation work also deposed so and thereby corroborated the deposition of PW-1 V.S. Rana in this regard. In fact PW-7 Manas Kumar De also referred to an application dated 08.02.2007 Ex. PW 7/A [available at page 113 in file Ex. P-14 (Colly) (D-18)] singed by him and his three colleagues making request for grant of honorarium for the strenuous work carried out by them. In the said application also it was stated by them that they had to return to Calcutta on 01.02.2007, but as the work had not been completed, so Sh. K.S. Kropha, Joint Secretary, MOC directed them to stay until the work is finished.
325. The aforesaid facts and various communications of the contemporary period referred to above clearly indicate that both A-5 K.S. Kropha and A-6 K.C. Samria were regularly involved in the processing of applications in MOC alongwith CA-I Section officials. As mentioned A-6 K.C. Samria had himself written a letter dated 02.08.2007 Ex. PW 1/DX-13 to Coal Controller seeking services of CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 277 of 467 four officials for scrutinizing applications for coal blocks earmarked for allocation through the Screening Committee. Thus if A-6 K.C. Samria claims he was not aware of the process undertaken by CA-I Section as regard processing of applications than what nature of scrutiny of applications was proposed to be got carried out from the officials of the office of Coal Controller. Admittedly one set of all applications was still available in MOC even though other four sets were already dispatched to various stakeholders. Thus as A-6 K.C. Samria has not put-forth any explanation with respect to the said letter(s) even for the purposes of pre-ponderance of probability so there is no reason as to why this Court should ascribe any other meaning to the words "Scrutiny of applications" except that the applications were to be scrutinized in terms of the guidelines only. Moreover, if it is argued that the guidelines did not state anything regarding scrutiny of applications and that it only speaks of checking of applications or that the words "scrutiny" and "checking" have different meanings with respect to applications received in MOC than again it was for A-6 K.C. Samria only to explain as to what was the meaning of the word "Scrutiny" as was mentioned by him in his communication Ex. PW 1/DX-13. Thus in the absence of no explanation coming forth in this regard, this Court has no reason to assign any other meaning to the use of said word other than what has been stated above.
326. Similarly the communication dated 08.02.2007 Ex. PW 7/A written by the officials of the office of Coal Controller also clearly shows that A-5 K.S. Kropha was indeed aware of the work being CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 278 of 467 carried out by the said officials. There is no reason to doubt the deposition of either PW-7 Manas Kumar De or that of PW-1 V.S. Rana that A-5 K.S. Kropha had met the said officials during their stay in Delhi. Even though in the cross-examination of PW-7 Manas Kumar De, it was suggested to him by Ld. Counsel for A-5 K.S. Kropha that he never met them during their stay in Delhi but the witness stated the said suggestion to be wrong. However the correctness or genuineness of communication dated 08.02.2007 Ex. PW 7/A written by the said witness alongwith his three other colleagues was neither disputed nor it was even suggested to be a false document. In these circumstances, I have thus no reason to doubt the deposition of PW-7 Manas Kumar De or that of PW-1 V.S. Rana in this regard. PW-7 Manas Kumar De also stated that no one ever asked them to scrutinize the applications for checking their eligibility and completeness.
327. In the aforesaid circumstances it thus can not be even presumed for the sake of arguments that A-5 K.S. Kropha despite having met the said officials and asking them to complete the work assigned to them before leaving Delhi was not aware as to what nature of work they were carrying out. It is also thus a natural corollary that A-5 K.S. Kropha was also aware of the process undertaken by CA-I Section towards processing of applications before they were sent to various stakeholders. I have also already observed that there is no reason to doubt the claim of PW-1 V.S. Rana that course of action to be adopted qua the applications CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 279 of 467 received in MOC was decided in a meeting held in the office chamber of A-5 K.S. Kropha, Joint Secretary (Coal). The other communication referred earlier also corroborated the factum of discussion having taken place in the office chamber of A-5 K.S. Kropha in this regard. The knowledge on the part of A-6 K.C. Samria about the process undertaken by CA-I Section has also been well established.
328. Moreover the whole intention of providing for checking of applications for their eligibility and completeness in the guidelines was only to ensure that undeserving applicant companies should be weeded out at the initial stage itself. Moreover if for any reason, the said exercise could not be undertaken before the various sets of applications were sent to various stakeholders then also there was no bar that the applications could not be checked subsequently for their eligibility and completeness. As shall be discussed at a later stage also the Screening Committee in order to achieve the objective of ensuring transparency and objectivity in the coal block allocation process also introduced the concept of presentations to be made by the applicant companies before the Screening Committee even though the guidelines were silent as regard the concept of any such representation to be made before the Screening Committee. Thus as is evident from the overall facts and circumstances of the case that A- 6 K.C. Samria was well aware of the process undertaken in MOC qua the applications received so the said exercise of checking of applications could have been very well undertaken even at a subsequent stage, since one copy of all applications was still CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 280 of 467 available with MOC.
329. At this stage, I may also mention that in view of the aforesaid extensive discussion of the overall facts and circumstances of the case nothing much hinges on the words "696 complete applications were received by this Ministry" as were mentioned by PW-12 N.R. Dash in the office memorandum of Ministry of Steel dated 06.12.2007 Ex. PW 1/H-5 (Colly) (D-13). As the application of A-1 M/s VMPL was clearly incomplete so there was no reason as to how the said application could have been found to be complete by Ministry of Steel. In fact at a later stage of the present judgment, I shall be also discussing that even the TEFR available with Ministry of Steel and on the basis of which it had sent its recommendations/views to Ministry of Coal vide office memorandum dated 06.12.07 Ex. PW 1/H-5 (Colly) did not actually pertain to the same end use project to which the application in question pertained to. Moreover in the examination of PW-12 N.R. Dash, no question was asked in this regard by either the prosecution or the defence and thus when the application of A-1 M/s VMPL has been found to be incomplete, so no purpose will be served by assigning any explanation or reason to the use of said words by him in the office memorandum Ex. PW 1/H-5 (Colly). The said fact is actually not in conformity with the actual status of the application of A- 1 M/s VMPL and thus is a wrong statement of fact and cannot be given much credence. In fact my subsequent discussion would also show that even the working in Ministry of Steel with respect to coal block allocation process was also not completely above board.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 281 of 467
330. However in the absence of there being a proper investigation it will be a matter of pure inferences only as to whether the working of these Ministries involved in allocation of captive coal blocks was so adhoc and arbitrary in almost all matters or it was only qua coal block allocation matters only as influential and rich/resourceful persons were involved. I however do not wish to enter into the said realm of imagination as there is no evidence available on record to support the aforesaid inference.
331. From my aforesaid discussion, it is thus clear that the accused MOC officers not only had all the knowledge of the process being undertaken in MOC by the time 36 th Screening Committee meetings were held but they deliberately or for reasons best known to them chose to either ignore such violation of guidelines or deliberately kept silence.
332. At this stage, I may also mention that none of the aforesaid conclusions are based on any inference or conjectures or surmises but are the only natural corollary emerging from the records of the case when examined in the light of arguments put-forth by Ld. defence counsels. The aforesaid circumstances also clearly demonstrate that provisions of Manual of Office Procedure were not followed even in important matters of MOC much less in routine day to day functioning. It thus does not lie in the mouth of accused MOC officers to claim that the entire working of MOC at least with respect to coal block allocation matters took place in accordance with the provisions of Manual of Office Procedure or that the oral deposition of CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 282 of 467 PW-1 V.S. Rana or that of DW-7 Prem Raj Kuar qua which no written record exists, be not considered at all. On the other hand, the accused MOC officers are themselves repeatedly calling upon this Court to believe their oral claims to be true and correct qua different aspects even though they are not supported by any written record of the relevant time which in fact ought to be there if provisions of Manual of Office Procedure were mandatorily followed. Certainly the accused MOC officers cannot blow both hot and cold.
333. In fact as has been earlier demonstrated by this Court and as will be further discussed in the subsequent part of the judgment also, the entire working of MOC has been perfunctory and the rules have been observed more in breach.
G (vi) Whether there was any violation of guidelines in the Screening Committee meeting.
334. The minutes of the meeting held on 11.05.2007 also refers to the requirement of arriving at the interse priority amongst the competing applicant companies for any given coal block but strangely enough these guidelines were also not followed when M/s VMPL was subsequently recommended for allocation of a captive coal block. The minutes of meeting held on 11.05.2007 or that of subsequent meetings of Screening Committee or the files of MOC does not show that accused MOC officers despite being aware of the need for having such a transparency and objectivity in the coal block allocation process put in place such a mechanism or took any steps which could facilitate the Screening Committee in arriving at such a decision CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 283 of 467 objectively and with complete transparency. The accused MOC officers being officers of nodal Ministry can not say that it was for the Screening Committee to decide the mechanism or the procedure to be followed, since being the Chairman and Member Convener of the Screening Committee respectively, it was the bounden duty of A-4 H.C. Gupta and A-5 K.S. Kropha to ensure due compliance with the guidelines earlier approved and issued by them for governing allocation of captive coal blocks. It is not the case of anyone that while framing any such guidelines the MOC undertook some consultative process either with the State Governments or with the Administrative Ministries. It may be true that on every occasion whenever the guidelines were framed and approved in MOC then they might have been guided by the procedure adopted by the earlier Screening Committees but the fact remains that on none of the occasions before finalizing the guidelines, the Administrative Ministries or State Governments were ever consulted in any manner.
335. In these circumstances, if once again the composition and purpose of constituting Screening Committee is referred to, then it is clear that while allocation of captive coal blocks in the country was the subject matter of MOC but since it impacted the work of other Ministries and State Governments so in order to expedite the process and to obtain the views of all concern at one place, the Screening Committee was constituted by MOC, Government of India.
336. Thus as is evident from the deposition of PW-12 N.R. Dash, PW-14 Shashi Ranjan Kumar, DW-5 Bhaskar Khulbe and DW-6 CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 284 of 467 Shivraj Singh, they had simply put-forward the views, comments/recommendations of their respective organisations and which recommendations were in fact already communicated to MOC before the Screening Committee meeting took place. Thus even if it is presumed for the sake of arguments that after putting before the Screening Committee their views/comments, the various members of Screening Committee did participate in the discussion so that the final decision of the Screening Committee may be arrived at but still the responsibility to ensure due compliance with the guidelines issued by MOC rests solely with A-4 H.C. Gupta, who not only was Secretary, Coal but was also Chairman, Screening Committee and with A-5 K.S. Kropha who was Joint Secretary Coal, and was also the Member Convener, Screening Committee.
337. Though both the aforesaid officers have now claimed that all the guidelines including interse priority guidelines were duly complied with before the final recommendations of the Screening Committee were arrived at but I shall be demonstrating at a slightly later stage of the present judgment that no heed at all was paid to any of the guidelines much less the guidelines specifying the procedure for arriving at the interse priority amongst the competing applicant companies for any given coal block.
338. The minutes Ex. PW 1/L (Colly) of 36 th Screening Committee are not only completely silent in this regard but are so cryptic that nothing is ascertainable as to what procedure was followed to ascertain the interse priority amongst the competing applicants for CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 285 of 467 any given coal block as to on what basis any given applicant company was selected or other companies were not selected. This is thus yet another aspect qua which accused persons are calling upon this Court to believe their oral submissions even in the absence of any written record and more importantly when written record ought to have been prepared by them showing the basis of their decision or the procedure followed by them while dealing with such an important nationalised natural resource having immense monetary value and importance for the industrial development of the country. The accused MOC officers can not say that they were not supposed to record the procedure or reasons as to why from out of the various applicant companies some companies only have been selected. The absence of reasons in this regard and especially in view of the overall facts and circumstances of the present case as discussed above clearly speak volumes not only about the arbitrary functioning of MOC officers but also about their brazenness in doing so, caring the least for the rule of law. The bald argument that the decision taken by them can not be questioned in the present proceedings or can not be subjected to judicial review in the present proceedings, again I may say is a brazen argument.
339. In order to ascertain the existence of element of culpability or mensrea or guilty intention in the acts of omissions and commission of accused public servants, all such aspects are required to be taken into consideration. As shall be further discussed, all the witnesses examined either by the prosecution or by the defence have stated CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 286 of 467 that no interse priority chart or interese merit chart was provided to them in the Screening Committee meeting held on 03.07.2008. On the other hand accused MOC officers have claimed that as there was no requirement to prepare any such interse priority chart or interse merit chart in the guidelines so no fault can be found on their part on this ground.
I may however state that in fact there was no requirement of mentioning in the guidelines that any interse merit chart or interse priority chart shall be prepared, for the same would have been the part of process which was required to be adopted in achieving the goals mentioned in the guidelines. The guidelines admittedly contained the goals which were required to be achieved and not the means thereof. Even otherwise if the argument put-forth by Ld. Counsels for the accused persons is considered then also when the said guidelines in question were prepared and approved by accused MOC officers themselves then keeping in view their vast experience on the administrative side and being senior officers of Indian Administrative Service, it was expected of them to also provide in the guidelines as to how the said goals will be achieved or what shall be the process or procedure to be followed. On the other hand they should have thought of some procedure vide which the guidelines so framed by them would have been implemented. Thus once again accused MOC officers can not try to eke out any benefit from their own follies.
340. In fact from the proceedings of Screening Committee and CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 287 of 467 which shall be discussed at length at a slightly later stage of the judgment it is apparent that the most important part of the guidelines which were required to be complied with by the Screening Committee i.e. to ascertain the interse priority from amongst the competing applicant companies was not at all followed or complied with.
341. The aforesaid discussion thus brings us to the next issue as to how the decision of recommending A-1 M/s VMPL for allocation of a coal block was arrived at in the Screening Committee meeting held on 03.07.08. The claim of accused MOC officers that all the decisions of the Screening Committee and especially as regard A-1 M/s VMPL as were taken in the Screening Committee meeting held on 03.07.2008 were unanimous will also be required to be examined.
G (vii) Whether the recommendations made by 36 th Screening Committee meeting were unanimous.
342. It has been the constant and consistent stand of accused public servants 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 recommendations 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 outcome of the deliberations was only recorded. As regard non-mentioning of reasons for choosing one or the other company from amongst many applicant companies for any given coal block in the minutes of the meeting, it was submitted CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 288 of 467 that had any 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-5 Bhaskar Khulbe and DW-6 Shivraj Singh, it was submitted that admittedly during the course of Screening Committee meeting all the members were free to air their views and there was no restriction on anyone to give any contrary or conflicting view/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. The recommendation of the Screening Committee were thus stated to be unanimous.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 289 of 467
343. On the other hand Ld. Sr. P.P. Sh. Sanjay Kumar while referring to the deposition of DW-5 Bhaskar Khulbe and DW-6 Shiv Raj Singh submitted that the defence witnesses themselves stated that all the recommendations were not unanimous. He also pointed out that the meeting as per the minutes thereof started at 3 PM and as stated by defence witnesses lasted for about 1 ½ hour only. It was thus submitted that in such a short span of time when admittedly various members of the Committee including A-4 H.C. Gupta, the Chairman of the Committee made some general remarks then it was not only highly improbable but also impossible for the Screening Committee to have a discussion about 674 applications of 184 applicant companies with respect to 23 coal blocks under consideration and that too qua all the factors as are mentioned in para 14 of the minutes. It was also submitted by Ld. Sr. P.P. that as the minutes of the meeting were admittedly prepared later on in MOC and were also not sent for confirmation to members of Screening Committee before they were put up for approval before the Prime Minister as Minister of Coal so there was no occasion for anyone to point out any discrepancy in the minutes or to raise any objection. The recommendations made by the Screening Committee were thus stated to be not unanimous.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 290 of 467 My Discussion
344. In order to appreciate the aforesaid issue, it will be worthwhile to once again revisit and understand the constitution and composition of Screening Committee and its working. The composition of Screening Committee when examined in relation to its mandate and actual working will help in understanding as to how the working of Screening Committee was supposed to have taken place. It will also help in appreciating the contentions of Ld. Counsels for accused public servants as regard the process followed in the 36 th Screening Committee meeting for arriving at its recommendations.
(a) Constitution of Screening Committee.
345. As earlier also mentioned, 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 State Governments CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 291 of 467 where the coal blocks proposed to be allocated, were situated or that of the state Governments where the end use plant was established or was proposed to be established were also equally important. The views of CMPDIL or CIL or its other subsidiary companies were also 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 qua any coal block, if previously allocated to it.
346. However before proceeding further it will be also appropriate to discuss briefly as to how the business of Government of India is carried out.
The business of the Government of India is disposed of at various levels within the Ministries/Departments in terms of the Government of India (Allocation of Business) Rules, 1961 [herein- after referred to as "AoB Rules, 1961"] by, or under the general or special directions of the Minister-in-charge. However, the government of India (Transaction of Business) Rules, 1961, [herein-after referred to as "ToB Rules, 1961"], stipulate that such disposal of business is subject to the provisions relating to consultation with other Ministries/Departments, approval of the Prime Minister, the Cabinet and its Committees and the President. Accordingly, while a significant portion of the Government business gets disposed of at the departmental level, certain cases, or class of cases that are important from the national perspective, require approval of the Cabinet or one of the Committees of the Cabinet.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 292 of 467
347. Both AoB Rules, 1961 and ToB Rules, 1961 have been framed under Article 77 (3) of the Constitution of India. The first schedule to the AoB Rules, 1961 specifies the Ministries, Departments, Officers and Secretariats while the second schedule lists out the business allocated to different Ministries/Departments of the Government of India. The cases that require approval of the Cabinet, are indicated in the second schedule, and those requiring approval of the Committees of the Cabinet are indicated in the first schedule to the ToB Rules, 1961.
One such illustrative case which is required to be placed before the Cabinet is "Cases in which a difference of opinion arises between two or more Ministries and a Cabinet decision is desired".
348. Thus if any action even though it may concern any given Department or Ministry in terms of AoB Rules, 1961 but if it also impacts the business of other departments or Ministries or even that of any State Government than before any such matter is processed further for approval by the concerned department/Ministry [Nodal Ministry/Department] than it is imperative that concurrence of such other Departments/Ministries or State Governments is also obtained. However in the event of such concurrence not being possible, the views of the differing Departments are to be appropriately included in the minutes of any such consultative meeting or note prepared consequent thereto on the basis of which approval from the competent authority concerned, be it Minister-in-charge or Cabinet or any of its Committees is being sought. Such minutes or notes should CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 293 of 467 thus reflect the views of the Departments concerned and should also not be paraphrased in a manner that may not correctly reflect the view/point of the consulted department.
349. Thus procedurally under the ToB Rules, 1961, the Minister-in- charge of the Department would be within his right to bring the matters before the Cabinet in all cases of difference of opinion between Ministries whose business is impacted. However, in all cases of differences between Ministries, it is incumbent upon the sponsoring Ministry to honestly reflect the views/comments of the consulted Ministries/Departments alongwith their counter views, if any. The sponsoring department/Ministry ought not to cursorily brush aside the views of the consulted departments/Ministries. This is all the more important and required before the Minister-in-charge of the concerned Ministry may take an objective view as to whether the matter needs to be placed before the Cabinet or any of its Committees or not.
350. Moreover under Rule 11 of the ToB Rules, 1961 it is the responsibility of the Secretary of the Ministry/Department to ensure that the requisite rules/regulations/procedures/processes etc. are duly observed while disposing of the business of the Department.
351. It is in the light of aforesaid rules that not only the minutes of 36th Screening Committee ought to have been recorded but the liability of accused MOC officers and especially that of A-4 H.C. Gupta, Secretary Coal is to be viewed and assessed.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 294 of 467
352. It is in pursuance to the aforesaid rules that Government of India constituted such an inter-departmental/inter-governmental 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 to make recommendations for allocation of various coal blocks in favour of different applicant companies in an objective and transparent manner. Admittedly the allocation of captive coal blocks to various private companies engaged in different end use projects impacted the business/functioning of various other Ministries/Departments and also that of State Governments.
353. It was in order to achieve the said objective only that MOC framed detailed guidelines and also brought them to the notice of public at large informing them 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.
354. 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 and that too in consultation with all concerned Departments/Ministries and State Governments 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 CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 295 of 467 sending one copy to CMPDIL. One copy of all the applications was however retained in MOC. Thus one set of applications of all such companies which were either having an existing steel plant or sponge iron plant or were proposing to establish a steel or 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 either having an existing power plant or 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 having an existing cement plant or who were proposing to establish an end use project in cement sector. Copy of their applications was sent only to DIPP for comments/views and not to Ministry of Power or Steel. On similar lines, one copy of the applications was sent to only those State Governments where any given coal block was situated whose allocation was being sought by any given company or to state where existing end use plant of the company qua which allocation of a coal block was sought, was situated or any such 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 only and not to all State Governments or Administrative Ministries who were members of Screening Committee. However one copy of all applications was also sent to CMPDIL for its comments. In fact CMPDIL was also asked to make a compilation of all the information furnished by the applicant companies in their application forms and as was also there in soft CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 296 of 467 copy in the CD submitted by the applicant companies alongwith their applications.
355. Thus from the aforesaid circumstances it is clear that in the Screening Committee meetings, representatives of all the State Governments were not concerned with the application of any such company who was neither applying for any coal block situated in their state nor was proposing to have its end use project in their State. Admittedly applications of all the companies were not even sent to all the State Governments. Similarly a given Administrative Ministry was also not concerned with the applications of all such companies who were neither engaged nor were proposing to engage in any end use project relating to their Ministry. A natural consequence of the aforesaid scheme of arrangement was that the representatives of State Governments or Administrative Ministries in the Screening Committee meeting were not having any knowledge of the claims of any such applicant companies whose applications were not sent to them by MOC qua any factor much less as regard their financial strength or their technical capabilities or progress made by them towards establishing their end use project. They were also not aware of the recommendations/views of other State Governments or Administrative Ministries as regard various applicant companies for any given coal block, since the views/comments of all State Governments and Administrative Ministries were though available with MOC but were not circulated or exchanged amongst all the members. Thus the state Government representatives were CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 297 of 467 accordingly not concerned with the recommendations made by the Screening Committee qua any coal block in favour of any applicant company as long as the said coal block was not situated in their state or the proposed end use project of the applicant company being recommended was not being established in their State. Similarly the representatives of Administrative Ministry(ies) were not concerned with any such recommendation as long as the end use project for which any coal block was recommended for allocation did not pertain to their Ministry.
356. If in the aforesaid circumstances the constitution and working of Screening Committee is seen and visualized then it emerges out as an irresistible and inevitable conclusion that the Screening Committee was though constituted as a large broad based Inter- Departmental and Inter-Governmental 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 meeting 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 company being the representatives of Nodal Ministry. Thus in any such discussion qua any given coal block, the views of representatives of the state Government where the coal block in question was situated were also important. Representatives of other CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 298 of 467 State Governments could participate only with respect to the claim of such applicant companies who intended to establish their end use project in their state. Similarly representatives of an 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 project relating to the said Administrative Ministry.
357. The deposition of DW-6 Shiv Raj Singh, who participated in the Screening Committee meeting held on 03.07.08 clearly supports the aforesaid conclusion. 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 the accused persons that the decisions made in the Screening Committee were unanimous in nature and especially because while signing the recommendation sheets the various members of Screening Committee did not raise any objection. Thus 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.
358. It is in the light of aforesaid nature of constitution of Screening Committee that the working of 36th Screening Committee needs to be CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 299 of 467 discussed and analysed.
(b) Working of 36th Screening Committee
359. Having discussed the composition of Screening Committee and its mandate or objective to be achieved, it will be now worthwhile to discuss the actual working of 36 th Screening Committee and that too with reference to its final meeting held on 03.07.08. I may also mention that my further discussion shall be primarily confined to the recommendation made by 36th Screening Committee in favour of A-1 M/s VMPL with respect to allocation of Moira-Madhujore coal block situated in the State of West Bengal, qua which the present case pertains to.
360. As regard discussion pertaining to allocation of Moira- Madhujore coal block the concerned parties in 36 th Screening Committee would have been thus the representatives of Ministry of Coal, representatives of Ministry of Steel, i.e. the Administrative Ministry for iron and steel projects, representatives of DIPP i.e. the administrative Ministry for cement projects, representative of Government of West Bengal where Moira-Madhujore coal block was situated and representatives of such State Governments where various applicant companies seeking allocation of Moira-Madhujore coal block were proposing to have their end use project for which allocation of captive coal block was sought. Accordingly representative of State of Bihar where the proposed integrated steel plant was to be established by A-1 M/s VMPL would have been an CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 300 of 467 important entity whose comments/views would have mattered and especially when the said company was finally recommended by the Screening Committee for allocation of a coal block for its proposed end use project situated in Bihar only. In fact minutes Ex. PW 1/L (Colly) (D-11) of 36th Screening Committee in para 14 mentions that while making recommendations the Screening Committee took into consideration the techno-economic feasibility of end use project, and also the status of preparedness to set up the end use project beside various other factors mentioned over there.
Certainly for ascertaining the techno-economic feasibility the project report of the proposed end use project would have been required and as regard status of preparedness to set up the end use project, the report/views/comments of the State Government where the end use project in question is proposed to be established. Undisputedly as regard the application of A-1 M/s VMPL, the end use project was proposed to be established in State of Bihar.
As regard technical aspects, the inputs of representatives of CIL and CMPDIL would have been also relevant.
361. Having so identified the concerned stakeholders whose views would have mattered in the discussion/deliberations of 36 th Screening Committee in arriving at a proper decision qua the companies to whom Moira-Madhujore coal block could be recommended for allocation, it will be now pertinent to discuss and analyse from the various documents placed and proved on record coupled with the CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 301 of 467 deposition of various prosecution and defence witnesses as to the manner in which 36th Screening Committee arrived at its recommendation to recommend A-1 M/s VMPL as one of the six joint allocatee company for Moira-Madhujore coal block.
362. However before adverting further it also needs to be seen as to whether representative of State Government of Bihar was present in the Screening Committee meeting held on 03.07.2008 or not. Undisputedly to none of the meetings of 36 th Screening Committee, much less in the final meeting held on 03.07.08 where the recommendations of 36th Screening Committee were arrived at, the representative of State of Bihar was invited by MOC. Not only the files of MOC supports the aforesaid fact but PW-1 V.S. Rana, the then Under Secretary, MOC also states so. However the reason as to why representative of State Government of Bihar was never invited to attend any of the said meetings is not at all ascertainable from the files of MOC. Even no explanation has come forth during the course of entire trial as to why representative of Government of Bihar was not invited to any of the 36th Screening Committee meetings. The accused MOC officers have also not put-forth any explanation or reason in this regard much less any plausible reason except that it was for CA-1 Section officials led by PW-1 V.S. Rana to explain the same. It would be however pertinent to mention at this stage that one copy of application of A-1 M/s VMPL was however admittedly sent to Government of Bihar for seeking its comments/views vide letter dated 19/28.02.2007 Ex. PW 1/G-3 (D-17).
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 302 of 467
363. Ld. Counsels for the accused persons have rather referred to the deposition of PW-19 Insp. Rajbir Singh pointing out that in his cross-examination he stated that representative of State Government of Bihar was present in the Screening Committee meeting held on 03.07.08. He also stated that Sh. U.P. Singh, the then Joint Secretary, Ministry of Steel had told him during the course of investigation that probably in the year 2007, Sh. Phool Singh, the then Secretary Industries, Government of Bihar had attended some meeting of Screening Committee. It was thus submitted by Ld. Counsel for A-2 Vikash Patni that since vide letter dated 19.06.2007 Ex. PW 19/DX-5 [available at page 36 in file Ex. P-27 (Colly) (D-31)] Sh. Phool Singh on behalf of Government of Bihar had recommended allocation of a coal block in favour of M/s VMPL so it is clear that the claim of company M/s VMPL was duly supported by State Government of Bihar.
364. However before I discuss the issue as to whether representative of State Government of Bihar was present in the Screening Committee meeting held on 03.07.2008 or not or whether State Government of Bihar had supported the application of company M/s VMPL for allocation of a captive coal block so as to establish the proposed integrated steel plant or not, it will be appropriate to first refer to the relevant portion of the statement u/s 161 Cr.PC of Sh. U.P. Singh the then Joint Secretary, Ministry of Steel and the consequent investigation carried out by IO Insp. Rajbir Singh.
The relevant portion of the statement u/s 161 Cr.PC dated CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 303 of 467 15.04.2013 of Sh. U.P. Singh recorded by IO Insp. Rajbir Singh during the course of investigation read as under:
"Question: Whether representative from Government of Bihar attended the 36th Screening Committee meeting?
Answer. As I recall, Sh. Phool Singh, the then Commissioner & Secretary, Deptt. of Mines & Geology, Govt. of Bihar in the month of December 2007 (not remembered the exact date) as representative of the State of Bihar attended the 36 th Screening Committee meeting and suggested for allocation of a suitable coal block to the company M/s Vikash Metal and Power Ltd. He suggested that since the proposal for investment of this company is in the State of Bihar so the case may be considered and this is view of Govt. of Bihar to attract larger volume of Investment in State of Bihar. Normally the SC meetings were attended by the representative of State Govt. where the Coal Block located. There was no coal block in state of Bihar and Sh. Phool Singh was my senior officer in Bihar cadre. I know him since a long time."
365. Thus even though in his statement u/s 161 Cr.PC Sh. U.P. Singh stated that probably in December 2007, Sh. Phool Singh as a representative of Bihar had attended the Screening Committee meeting and had even suggested allocation of a suitable coal block in favour of M/s VMPL but Insp. Rajbir Singh while being cross- examined as PW-19 during the trial of present case also stated that when he examined Sh. Phool Singh in this regard then he had claimed ignorance as to whether he attended any such meeting or not and rather asked him to point out any attendance sheet, if signed by him. PW-19 Insp. Rajbir Singh also stated that though he had recorded statement of Sh. Phool Singh u/s 161 Cr.PC in this regard but the same was not filed in the Court alongwith report u/s 173 Cr.PC as he did not find it to be relevant.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 304 of 467
366. Strangely enough Insp. Rajbir Singh did not investigate the said issue regarding presence of representative of State Government of Bihar in any of the 36 th Screening Committee meeting any further or I may state that he deliberately chose to overlook the said issue as he neither placed on record the said statement u/s 161 Cr.PC of Sh. Phool Singh as part of his report u/s 173 Cr.PC nor he mentioned the fact that in none of the attendance sheets of 36 th Screening Committee meetings the name of Sh. Phool Singh was mentioned. In fact during the course of present trial also it is not the stand of anyone that Sh. Phool Singh, Secretary Industries Government of Bihar or any other officer of Government of Bihar was actually present in any of the meetings of 36th Screening Committee much less in the final meeting held on 03.07.08.
367. It is purely on the basis of lopsided investigation carried out by IO, Insp. Rajbir Singh and vague answers given by him in his deposition in the Court that Ld. Counsels for the accused MOC officers are trying to eke out benefit by arguing that as per prosecution witnesses, representative of State Government of Bihar was present in the Screening Committee meeting. No doubt not only the investigation conducted by IO Insp. Rajbir Singh as earlier also mentioned has not been above board but also his deposition in the Court in this regard is also not very forthcoming but what is important to note is that the argument being put-forth now on behalf of accused MOC officers is contrary to the records of the case i.e. the files of Ministry of Coal as stands proved on record. IO Inspector Rajbir CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 305 of 467 Singh has not cared to point out in his final report that in none of the two meetings of 36th Screening Committee held in the month of December, 2007 any discussion qua the claims of applicant companies took place as in both the meetings held on 07/08.12.2007, the representatives of various applicant companies merely made their presentations before the Screening Committee. More over company M/s VMPL admittedly made its presentation on 07.02.2008 only and not in the month of December 2007. IO Inspector Rajbir Singh thus did not even try to investigate the said issue at all much less faithfully or honestly. This again appears to be an act constituting dishonest and defective investigation with a view to file a closure report and thereby in the process helping the accused persons in getting absolved of all the charges.
368. At this stage, I may however also mention that Ld. Counsel Sh. Sushil Kumar Gupta for A-2 Vikash Patni has vehemently argued that recommendation of Government of Bihar in favour of M/s VMPL was indeed sent to MOC vide letter dated 19.06.07 Ex. PW 19/DX-5 [available at page 36 in file Ex. P-27 (Colly) (D-31)] under the signatures of Sh. Phool Singh, the then Secretary Industries, Govt of Bihar. A bare perusal of said letter dated 19.06.2007 Ex. PW 19/DX-5 sent by Sh. Phool Singh, Commissioner & Secretary, Department of Mines and Geology show that the said recommendation was only qua the proposed power project of capacity 2 X 250 MW to be established by M/s VMPL in the state of Bihar and not qua the proposed integrated steel plant which was being considered by 36 th Screening CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 306 of 467 Committee. The said recommendation letter was accordingly qua the proceedings relating to 35th Screening Committee which was dealing with issues relating to allotment of coal blocks reserved for power sector and not qua 36 th Screening Committee which was dealing with allocation of coal blocks reserved for other end uses i.e. iron, steel/cement. It was for this reason only that the said letter was sent by Sh. Phool Singh on 19.06.2007 as 35 th Screening Committee was scheduled to meet on 20.06.2007 to consider various applications qua coal blocks reserved for power sector. In the earlier part of the judgment, I have however already discussed at length that A-1 M/s VMPL had in fact dropped the very proposal of establishing the integrated steel plant and had instead proposed to establish an integral power plant.
The fact thus remains that in 36 th Screening Committee no representative of Government of Bihar was present. The attendance sheets of 36 th Screening Committee clearly supports the said fact. At this stage it would be worthwhile to mention that alongwith the letter Ex. PW 1/G-3 (D-17) sent to Government of Bihar by MOC, applications of M/s VMPL as were received for allocation of a coal block for their proposed power project to be established in Jharkhand and in Bihar and another set of application for their proposed integrated steel plant to be also set up in Bihar were also sent.
[In fact at a later stage of the present judgment, I shall be also discussing that M/s VMPL had in fact been pursuing various CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 307 of 467 applications with MOC for allocation of captive coal blocks by initially stating that they intend to establish an integrated steel plant in State of Jharkhand or another application stating that they intend to establish an integrated power plant in State of Jharkhand/Bihar. Subsequently the company submitted yet another application whereby it represented that they intend to establish an integrated steel plant in State of Bihar. Accordingly the claim of M/s VMPL for various such projects came up for consideration before 34 th Screening Committee, 35th Screening Committee and as well as before 36th Screening Committee for one or the other such project(s). However in 34th Screening Committee and 35th Screening Committee, the company could not succeed but they were successful in obtaining recommendation for allocation of a captive coal block for their proposed integrated steel plant in State of Bihar from 36 th Screening Committee. In fact the aforesaid circumstances also explains the casual manner in which the application in the present matter was submitted by M/s VMPL by annexing documents pertaining to one or the other project with their present application simply with a view to fulfill the requirement of annexing the necessary/required documents with the applications lest the application may be rejected at the threshold itself for want of complete documents. There were documents annexed with the application in question over here like bar charts which did not co-relate with the claims made in the application. The company and its officers/directors were clearly well versed with the procedure being followed in MOC regarding allocation of captive coal blocks and thus simply exploited the same CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 308 of 467 to their benefit].
369. Thus in the aforesaid circumstances when the copy of application of M/s VMPL as was considered by 36 th Screening Committee was sent to State of Bihar for their comments then it is beyond comprehension as to why no notice of 36 th Screening Committee meetings was thereafter sent to Government of Bihar for attending its various meetings. It is also beyond comprehension as to why no comments of Government of Bihar were insisted upon by MOC if the same were not received till the time meetings were proposed to be held or even subsequently by 36 th Screening Committee when during the course of meeting it must have come to their notice that neither any representative of Government of Bihar is present nor any comments/views have been received.
The attendance sheets of officers participating in various meetings of 36th Screening Committee clearly support the fact that in none of the meetings any representative of State Government of Bihar was present.
370. In this regard, I may also mention that all through the entire trial, the sole emphasis of the accused public servants has been that it was the sole responsibility of CA-I Section officials and that of PW-1 V.S. Rana, the then Under Secretary CA-I Section to ensure that proper steps for convening the meeting are taken. It has been stated to be their duty only to send notices to all members of the Screening Committee and to send reminders, if comments from any stake CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 309 of 467 holders were not received till the time meetings were scheduled to be held. In fact it was also sought to be argued that from the composition of Screening Committee as was approved by Minister of Coal, Government of India, it was only the coal bearing states whose comments were relevant and not of the states where the proposed end used project was to be established if the same is different from the coal bearing state.
371. Before proceeding further it will be thus appropriate to first discuss as to whether State Government of Bihar was a necessary invitee to 36th Screening Committee meetings or also whether comments of Government of Bihar were required to be placed before the Screening Committee for its consideration.
b (i) Whether State Government of Bihar was a necessary invitee to 36th Screening Committee meetings.
b (ii) Whether the comments of State Government of Bihar were necessary to be placed before the Screening Committee.
b (iii) Whose responsibility was it to ensure that notice of Screening Committee meetings is issued to all members and to also ensure that comments of all concerned are made available to the Screening Committee for its consideration.
The discussion qua all the aforesaid issues is proposed to be carried out together as all the three issues are inter-connected and the discussion qua them will overlap.
372. However in order to appreciate the aforesaid issues it will be proper to first refer to the order specifying composition of Screening CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 310 of 467 Committee as was uploaded on the website of MOC in November 2006, alongwith the advertisement inviting applications for 35 th and 36th Screening Committee. The same read as under:
COMPOSITION OF THE SCREENING COMMITTEE
1. Secretary, Ministry of Coal Chairman
2. Joint Secretary (Coal), Ministry of Coal Member-
Convener
3. Adviser (Projects), Ministry of Coal Member
4. Joint Secretary (LA), Ministry of Coal Member
5. Representative of Ministry of Railways, New Delhi. Member
6. Representative of Ministry of Power, New Delhi Member
7. Representative of Concerned State Govt. Member
8. Director (Technical), CIL, Kolkata Member
9. Chairman - cum - Managing Director, CMPDIL, Ranchi Member
10. CMD of concerned subsidiary company of CIL/NLC Member
11. Representatives of Ministry of Steel Member
12. Representatives of Department of Industrial Policy & Member Promotion (Ministry of Industry)
13. Representative of Ministry of Environment and Forest Member (Emphasis supplied by me)
373. Thus the aforesaid composition of Screening Committee merely states that representative of concerned state Government shall be a member of the Screening Committee. It no where qualifies that representatives of the coal bearing states i.e. where coal block in question are situated shall only be the member of the Screening Committee. This issue gets further clarified if one refers to the guidelines pertaining to interse priority amongst the competing CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 311 of 467 applicants as were issued by MOC. Para 9 of the guidelines mentions the various factors on the basis of which interse priority among the competing applicants was to be decided.
Para 9 of the guidelines 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 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)
374. Thus from the aforesaid guidelines it is clear that while the state government where the proposed end use project is to be CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 312 of 467 established shall be a member of the Screening Committee but in cases where it is not the same state where the coal block in question is situated then for deciding the interse priority, the recommendations of the coal bearing state shall only be relevant. In this regard one may argue that if such an interpretation is adopted then all states of the country ought to have been members of the Screening Committee, for a given applicant company may choose to establish its end use project in any state other than the coal bearing State.
375. Theoretically the aforesaid argument is completely true but in actual working it was not so. It is a matter of common knowledge that coal blocks in the country are situated only in very few states which in fact are even called mineral rich states. Thus on account of simple business/commercial prudence, any company desirous of seeking allocation of a captive coal block would like to establish its proposed end use project either in the same coal bearing state or at the most in the nearest state, for otherwise the transportation cost of coal itself will make the project financially unviable. However even otherwise the copies of applications received in MOC were sent to different stakeholders only after they were first segregated, block-wise, state- wise and end use wise. Admittedly such an exercise was undertaken in MOC after receipt of applications. The deposition of both PW-1 V.S. Rana and that of PW-7 Manas Kumar, the official of the office of Coal Controller clearly renders support to the aforesaid fact. Thus the segregation of applications must have given a clear picture to the MOC officers as to comments/views of which states were relevant or CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 313 of 467 are required to be called for even if they are not the coal bearing states. It would have been clear to them as to in which states the various applicant companies are proposing to establish their end use projects. In fact it was for this reason only in the guidelines containing composition of Screening Committee instead of mentioning names of any of the state governments, the following words were only mentioned:
"Representative of concerned State Govt."
376. Moreover if it was not so then there was no reason as to why one set of application of M/s VMPL seeking allocation of Moira- Madhujore coal block situated in the state of West Bengal but proposing to establish its end use project in State of Bihar, was sent to Government of Bihar vide letter Ex. PW-1/G-3 by MOC for seeking their comments. Even one set of applications of some companies was also sent to Government of Haryana, Punjab and to Government of Uttar Pradesh as the companies had proposed to establish their end use project in the said States. Undisputedly State of Haryana or Punjab or even Uttar Pradesh were not the coal bearing states.
377. In fact the opening para of minutes of 36 th Screening Committee Ex. PW 1/L (Colly) (D-11) also states that the applications of the companies were also sent to the concerned states where the blocks are located and also to the states where the proposed end use projects are located for their comments.
378. Even note dated 16.07.2008 of Sh. Ashish Gupta, Director, CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 314 of 467 PMO [available from page 52/N to 58/N in file Ex. P-34 (Colly) (D-41)] on the basis of which recommendations made by 36 th Screening Committee were processed in PMO and were finally approved by Prime Minister as Minister of Coal also states that the applications were also sent to states where the proposed end use projects would be located.
Thus it is crystal clear that the comments of the State Government where the end use project is proposed to be established were important even if it is presumed that actual presence of representative of such a state was not required or mandated in the Screening Committee.
379. Moreover in the light of aforesaid facts and circumstances even if it is presumed for the sake of arguments that all these acts qua convening of the Screening Committee meeting or for ensuring comments from all stakeholders was the job of CA-1 Section officials of MOC and that of PW-1 V.S. Rana, the then Under Secretary, CA-I Section but still the question which arises for consideration is whether during the course of any of the five meetings of 36 th Screening Committee either A-4 H.C. Gupta who was Secretary Coal/Chairman Screening Committee or A-5 K.S. Kropha, the then Joint Secretary Coal/Member Convener, Screening Committee or even A-6 K.C. Samria, the then Director, CA-1 ever questioned the CA-I officials/officers as to why no representative from Government of Bihar is present or as to why no comments from Government of Bihar have been received. This aspect becomes all the more important CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 315 of 467 since during 35th Screening Committee meeting when coal blocks reserved for power sector were discussed and all the present three accused public servants were also present, than it has been argued that State of Bihar which again was not a coal bearing state and was only the state where proposed end use project i.e. power plant was to be established by M/s VMPL, was duly represented and even its comments were received vide letter dated 19.06.07 under the signatures of Sh. Phool Singh, the then Secretary Industries, Government of Bihar.
380. Coming now to the issue as to whose responsibility was it to ensure that notice of the Screening Committee meeting is sent to all members of the Committee and also that comments of all concerned are available before the Screening Committee, it will be worthwhile to mention that in the written submissions filed by Ld. Counsel for accused public servants, the role of convener of a meeting while referring to "Shackleton on the Law and Practice of Meetings" has been mentioned as under:
34. Convener :
34.1 As per Shackleton, convening means "causes to come together". In relation to the convening two important aspects will be considered: the notice and the business proposed to be carried through (agenda). (5-01 on p.41) 34.2 Therefore, convener would, logically, mean the person who "causes to come together".
34.3 The limited role of the convener was to get the notices issued, take steps for holding of the meetings. His role ends as soon as the meeting gets convened and thereafter, the chairman takes over.
(Emphasis supplied by me) CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 316 of 467
381. The written submissions filed by Ld. Defence Counsel further read as under:
34.4 There are no complaints or testimonies that notices were not sent on time or that the members were denied from attending the meetings or that the meetings were not held properly. 34.5 The role or functions of a Member-Convener has not been defined or laid down in the notification constituting the Screening Committee nor has it been specified/ outlines in the Guidelines of MOC. Therefore, the term has to be necessarily construed and constructed in reference to its ordinary dictionary meaning. Dictionaries define the term "Convener" as a person who is required to call people to a meeting. An illustrative list is given below:
a A person whose job it is to call people together for meetings of a committee (Oxford English Dictionary);
b A person who arranges meetings for an official group of people (Cambridge Business English Dictionary);
c A person who convenes or chairs a meeting, committee especially one specifically elected to do so (Dictionary.com);
d The member of a group whose duty it is to convene meetings (The Free Dictionary Thesaurus); e A person who convenes or chairs a meeting, committee, etc, especially one who is specifically elected to do so (Collins English Dictionary).
34.6 Thus, the limited function of a Convener is to call, arrange or chair the meetings of the committee or group (if no separate chairman is appointed) of which he/ she may be the convener. This is precisely what the Appellant had done, without assuming or arrogating any of the functions or powers of the Screening Committee to himself.
34.7 It is also necessary not to confuse the role and functions of a Convener with that of a Secretary. These are distinctly different, as per the ordinary dictionary meaning. The Oxford Living Dictionary defines the term 'secretary' as an official of a society or other organization who conducts its correspondence and keeps its records."
(Emphasis supplied by me) CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 317 of 467
382. Thus from the aforesaid submissions itself, it is clear that it was the role of the convener to get the notices issued and take steps for holding of the meetings. Accordingly it was the responsibility of A- 5 K.S. Kropha who was member convener of the meeting to get the notices issued to all members and take steps for holding of the meetings. However as A-5 K.S. Kropha was a senior officer of the rank of Joint Secretary so obviously such steps would have been taken by his subordinates but he being the member convener can not escape his responsibility of ensuring that notice of the meeting is issued to all concerned and that all proper steps for holding of the meeting are taken. It was certainly his responsibility to ensure that all concerned are duly invited to attend the meeting. The minutes also ought to have accordingly mentioned as to which of the essential members are not present or whose comments have not been received.
383. Moreover a perusal of note dated 14.11.2007 at note sheet page 10 in file Ex. P-7 (Colly) (D-11) shows that while sending the notices to members of Screening Committee qua initial meetings of 36th Screening Committee to be held on 07/08-12-2008 the file with draft notices to be so issued by CA-I Section moved through the desks of A-6 K.C. Samria and that of A-5 K.S. Kropha. Though for the subsequent meetings held on 07/08-02-2008 the notices were sent to members of Screening Committee with the approval being given by PW-1 V.S. Rana only and the file in this regard did not move up. However at the time of sending notices to members of Screening CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 318 of 467 Committee for the final meeting to be held on 03/07/2008, the file with draft notices as were put up by CA-I Section went upto the desk of A- 6 K.C. Samria and after his approval was returned back to CA-I Section.
384. Thus A-5 K.S. Kropha being the member convener clearly failed to perform his duty in ensuring that notices are sent to all concerned for the meeting but even during the course of meeting he did not point out as to why representative of Government of Bihar was not present and that even no comments/views from Bihar Government have been received. Admittedly the Screening Committee was a small Committee comprising of only about 15/16 members and thus it would not have been difficult to notice that State Government of Bihar is not present. This would have also become apparent since M/s VMPL in his application had stated the location of its proposed end use project as Bihar only and the said company was finally recommended for allocation of a captive coal block by the Screening Committee for its end use project in Bihar only. A-6 K.C. Samria also thus can not escape from his responsibility in this regard and more so when he was not only Director CA-I Section but in so far as taking steps towards calling of Screening Committee meeting he can not divest himself from A-5 K.S. Kropha who was Joint Secretary, Coal and who was to act through him only while executing all such steps. In fact the position of A-6 K.C. Samria was very crucial in as much as he was not only to supervise the processing of applications as was being undertaken in MOC and to not only keep CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 319 of 467 senior officers abreast of all developments but to also execute their directions. At the cost of repetition it may be stated that as all the applications so received in MOC were addressed in the name of office occupied by A-6 K.C. Samria, even though at an earlier point of time some other officer was occupying the same.
In fact if the arguments of A-6 K.C. Samria are to be believed then except for acting as a post office and that he owed no responsibility of any nature whatsoever. As regard processing of applications in MOC he has tried to shift entire blame to CA-I Section and to PW-1 V.S. Rana, Under Secretary, CA-I Section while divesting himself of all responsibility in this regard despite being Director CA-I and his officer being the addressee in all applications. On the other hand in so far as the proceedings of Screening Committee are concerned he has again divested him of all responsibilities stating that since he was not a member of the Screening Committee and for the said proceedings it is A-5 K.S. Kropha and A-4 H.C. Gupta who may be responsible. This argument of A-6 K.C. Samria is also to be considered in the light of fact that he admittedly was present all through the meetings of Screening Committee and his name finds mention in the attendance sheets of all meetings of 36th Screening Committee.
385. In fact the records of the files of Government of Bihar also shows that qua 35th Screening Committee proceedings wherein applications received in MOC for allotment of caol blocks reserved for power sector were considered, then communication qua the CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 320 of 467 application of M/s VMPL with respect to their proposed Integrated Power Plant to be established at Begusarai in Bihar on the said 300 acres of land itself were undertaken.
386. The file Ex. P-27 (Colly) of Department of Mines and Geology, Government of Bihar as is available in D-31 shows that on 27.08.2007, Sh. Narayan Murti, Deputy Secretary, Government of Bihar had written a letter to A-6 K.C. Samria intimating about the status of progress made by M/s VMPL towards setting up its power project. The said status was provided by Government of Bihar in response to a letter dated 02.08.2007 bearing No. 38011/1/2007/CA-I sent under the signatures of A-6 K.C. Samria himself seeking such a status of applicant companies for consideration by 35 th Screening Committee.
387. The aforesaid fact gains material importance as the said communication also talked about the same 300 acres of land allotted to M/s VMPL and on that occasion a power plant was proposed to be allocated over there. Similarly the letter dated 19.06.07 Ex. PW 19/DX-5 (D-31) written by Sh. Phool Singh, Commissioner & Secretary, Department of Mines and Geology also talked of M/s VMPL intending to establish a Power Project of capacity 2 X 250 MW at Begusarai Bihar itself. Thus when after few months the application of M/s VMPL again came up for consideration before 36 th Screening Committee qua their proposal to set up an integrated steel plant at Begusarai Bihar itself on 300 acres of land allotted to it then it would have certainly put the three accused MOC officers on guard as they CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 321 of 467 all three were present at the time of 35 th Screening Committee meetings also.
388. It is in these circumstances the absence of representatives of Stage of Bihar in the 36th Screening Committee meetings, having been not invited by MOC and even not insisting for comments of State of Bihar does raises eye brows as to the actual intention of accused MOC officers. Thus in order to appreciate the role played by all three accused MOC officers, a comprehensive view has to be taken of the working of these officers in the entire coal block allocation process. It can not be lost sight of that they were dealing with important nationalised natural resources of the country i.e. coal, which was having high monetary value in the market. Coal was one of the most important raw material required for the industrial growth of the country.
This fact also shows that while considering the application of company M/s VMPL for allocation of a captive coal block the Screening Committee did not consider the recommendation of state of Bihar at all as none was available. The averment in para 14 of the minutes Ex. PW 1/L (Colly) that while making its recommendations the Screening Committee took into consideration the status of preparedness of the applicant companies towards setting up the end use project was thus clearly not considered while making recommendation in favour of M/s VMPL. Since the status of preparedness of M/s VMPL towards setting up the end use project could have been ascertained only from the comments of Government CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 322 of 467 of Bihar and neither any such comments were received from Government of Bihar nor any representative was present in the Screening Committee meeting. The conduct of A-4 H.C. Gupta also thus assumes significance in the entire process and more so in the light of minutes of the meeting finally approved by him.
389. Thus from the aforesaid circumstances it becomes clear that one of the important stake holder i.e. State of Bihar whose comments/views would have thrown valuable light as to the claim of M/s VMPL in seeking allocation of a captive coal block was consciously left out of the 36th Screening Committee deliberations for reasons best known to accused MOC officers only. The falsity in the minutes Ex. PW 1/L (Colly) as regard the basis of recommendations in favour of M/s VMPL also stands writ large on the face of record.
390. At this stage before proceeding further, I may also put a mark of caution that while there may be various acts of omission and commission attributable to CA-I Section officials or even to PW-1 V.S. Rana, the then Under Secretary, MOC which may even make them culpable in a given situation/proceeding but in the present trial what is being examined now is the role played by the present three accused public servants i.e. A-4 H.C. Gupta, the then Secretary Coal/Chairman Screening Committee, A-5 K.S. Kropha, Joint Secretary, MOC/Member Convener, Screening Committee and A-6 K.C. Samria, the then Director, CA-1 Section, MOC. No evidence has however come on record which could suggest that CA-I Section or PW-1 V.S. Rana were hands in glove with the senior officers of MOC CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 323 of 467 in any manner. Thus my discussion and analysis of the evidence led in the present case will primarily remain confined to the role played by these three accused public servants only. It is however true that these three accused public servants can not be held vicariously liable for any act of omission or commission attributable to other officials/officers of MOC and can be held liable only for such acts of omission as are directly attributable to them. However at the same time an accused can not claim that since the role of other persons is not being looked into so his role also should not be looked into.
391. The absence of representative of State of Bihar in the 36 th Screening Committee meeting assumes all the more importance especially in view of the fact that the allotment of 300 acres of land earlier made in favour of M/s VMPL by BIADA was cancelled much before 07.02.2008 i.e. the date when presentation was made by M/s VMPL and the Form for Feed Back was submitted by it to 36 th Screening Committee. Had representative of state Government of Bihar been invited to the 36 th Screening Committee meetings as were held on 07/02/2008 or on 03/07/2008 or comments from state of Bihar insisted upon then there was no reason as to how M/s VMPL could have continued to misrepresent before the Screening Committee about its status/stage of preparedness towards establishing the proposed end use project.
The aforesaid facts and circumstances certainly throws light as to the nature of functioning of MOC officers and that of 36 th Screening Committee and also as regard the process adopted by the CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 324 of 467 Screening Committee in arriving at its recommendations.
392. I now propose to deal with the circumstances in which as per accused public servants the Screening Committee allegedly arrived at its recommendation for allocation of Moira-Madhujore coal block in favour of M/s VMPL.
(c) Process followed by 36th Screening Committee which led to selection of A-1 M/s VMPL as a joint allocatee for allocation of Moira-Madhujore coal block.
393. DW-6 Shivraj Singh, the then Chief Secretary, Government of Chhattisgarh had represented State Government of Chhattisgarh in 36th Screening Committee meeting held on 03.07.08. He was examined as a defence witness by A-4 H.C. Gupta, the then Secretary, Coal and Chairman Screening Committee in his defence. In his examination-in-chief DW-6 Shivraj Singh deposed as under:
"Thereafter, coal blocks up for allocation were taken up state wise followed by block by block discussion. Whenever any particular coal block came up for discussion then first of all representative of Ministry of Steel was asked to state as to which applicant companies as per them were suitable for allocation of said coal block. Similar views were asked from representative of DIPP. Thereafter, representative of the state government where the coal block under consideration was located was also asked to state as to which of the applicant companies as per them should be allocated the given coal block. Thereafter, Member Convener of the meeting namely Sh.
K.S. Kropha Joint Secretary Coal used to be asked as to whether he had any comments to offer. After consulting the aforesaid four representatives then the Chairman used to generally ask other members present as to whether they had any comments to offer in the matter. If there was a unanimity regarding any given applicant company(ies) for being recommended for allocation of the given coal block then the CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 325 of 467 Chairman used to announce the same as the final decision of the meeting. If there was difference of views then further discussion used to take place and thereafter the final decision used to be taken on broad consensus which again used to be announced by the Chairman."
394. Thus if the aforesaid process of discussion undertaken in the meeting as has been stated by DW-6 Shivraj Singh in examination-in- chief is considered to be the actual process undertaken in the meeting then various question-marks arises as regard the role played by the accused public servants in the Screening Committee meeting. An analysis of the aforesaid process allegedly adopted by 36 th Screening Committee is quite instructive as to how the name of M/s VMPL could have come up for discussion and was finally recommended for allocation of Moira-Madhujore coal block.
395. In this regard it will be important to first discuss the role played by representative of State government of West Bengal. Admittedly the name of M/s VMPL was not recommended to MOC by State Government of West Bengal for allotment of any coal block situated in State of West Bengal much less qua Moira-Madhujore coal block. In fact DW-5 Bhaskar Khulbe, (Advisor) Industries, Government of West Bengal [He was examined as a defence witness by A-4 H.C. Gupta] who was present in 36th Screening Committee meeting held on 03.07.2008 as a representative of State Government of West Bengal stated that in the meeting he had reiterated the recommendations already made by Government of West Bengal to MOC qua coal blocks situated in the state. Thus it is clear that DW-5 Bhaskar Khulbe representative of state of West Bengal himself had CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 326 of 467 not recommended the name of M/s VMPL. In fact it is not even the case of accused public servants that DW-5 Bhaskar Khulbe had himself recommended or even proposed the name of M/s VMPL for allocation of any coal block much less for allocation of Moira- Madhujore coal block.
396. During the course of his examination-in-chief, DW-5 Bhaskar Khulbe was put the following question by Ld. Counsel for A-4 H.C. Gupta to which he answered as under:
Q I put it to you that you sought the Chairman's approval to go out of the meeting to consult on phone Sh. Sabyasachi Sen, Principal Secretary, Commerce and Industries, Government of West Bengal in order to consult Sh. Sabyasachi Sen qua recommendation in favour of M/s VMPL and three other companies for Moira Madhujore coal block by replacing JAS Infrastructure (Abhijit) with VMPL in the recommendation of Government of West Bengal in line with the recommendation of line ministries.
A I did go out of the meeting but in order to apprise Sh. Sabyasachi Sen on phone that out of recommendation in favour of three companies as made by Government of West Bengal earlier to MOC in writing, recommendation qua JAS Infrastructure (Abhijit) was not being accepted but it is wrong to suggest that I went out to consult Sh. Sabyasachi Sen qua the companies being replaced in place of JAS Infrastructure (Abhijit).
(Emphasis supplied by me) PW-18 Sabya Sachi Sen however claimed ignorance about having received any such call from DW-5 Bhaskar Khulbe in this regard. However even if it is presumed for the sake of arguments that DW-5 Bhaskar Khulbe did seek approval of PW-18 Sh. Sabya Sachi Sen qua allocation of Moira-Madhujore coal block in favour of M/s CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 327 of 467 VMPL then also this circumstance leads to only one logical conclusion that the name of M/s VMPL was at least not proposed by him in the meeting of Screening Committee. The suggestion put to him on behalf of accused persons can at the most suggest that he went out to seek approval from his senior qua M/s VMPL only upon finding that the Screening Committee is inclined to recommend M/s VMPL for allocation of Moira-Madhujore coal block.
397. The purpose of mentioning the aforesaid facts is only to demonstrate that in the Screening Committee meeting held on 03.07.08 representative of Government of West Bengal had himself not proposed the name of M/s VMPL for allocation of Moira- Madhujore coal block.
398. Similarly PW-14 Sh. Shashi Ranjan Kumar, Deputy Secretary/Director DIPP stated in his deposition that in the Screening Committee meeting he had reiterated the recommendations of DIPP as were already sent to MOC. He also stated that as regard Moira- Madhujore coal block M/s Lafarge India Pvt. Ltd. was recommended by DIPP for its proposed cement project. His testimony to this effect has remained uncontroverted. Thus irrespective of the fact whether M/s Lafarge India Pvt. Ltd. was a deserving applicant company for allocation of Moira-Madhujore coal block or not, it is clear that PW-14 Sh. Shashi Ranjan Kumar also had not recommended the name of M/s VMPL for allotment of any coal block much less qua Moira- Madhujore coal block in the Screening Committee meeting. Once again it is also not the case of even accused public servants that CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 328 of 467 representative of DIPP recommended or proposed the name of A-1 M/s VMPL for allotment of any coal block.
399. In these circumstances one is left with only two other stake holders i.e. MOC being the Nodal Ministry and Ministry of Steel which was the concerned administrative Ministry qua steel projects. Admittedly the views of CIL or CMPDIL would have been relevant only qua the technical aspects and thus their views are not at all relevant over here for the purpose of present discussion, even if any views were expressed by them. Moreover the views, if any expressed by them in the meeting are neither reflected in the minutes of the meeting nor from any subsequent noting in the files of MOC.
400. Further from the deposition of DW-6 Sh. Shivraj Singh, it can be safely inferred that the representative of Ministry of Steel must have been first asked about his views. Admittedly M/s VMPL was placed under category-VI by Ministry of Steel in terms of its recommendations sent to MOC vide OM dated 06.12.07 Ex. PW-1/H- 5 [available from page 830-855 in file Ex. P-9 (Colly) (D-13)]. At the same time it is also an undisputed case that in all 29 companies who were proposing to establish steel project had applied for allocation of Moira-Madhujore coal block and out of them eight companies were placed in higher categories by Ministry of Steel than that of M/s VMPL. In these circumstances it could not have been possible at the first place for representative of Ministry of Steel to propose the name of M/s VMPL for allocation of Moira-Madhujore coal block when there were eight other companies already placed by them in higher CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 329 of 467 categories than that of M/s VMPL.
401. DW-6 Shivraj Singh also stated that after the views of Administrative Ministries and that of State Governments were sought then Joint Secretary, Coal/Member Convener Screening Committee, Sh. K.S. Kropha, used to be asked as to whether he has any comments to offer. Thus even if it is presumed for the sake of arguments that name of M/s VMPL was proposed by representative of Ministry of Steel for allocation of Moira-Madhujore coal block then also the necessary and logical corollary which follows is that upon being asked to offer his comments, Member Convener, Sh. K.S. Kropha who was also a Member of the Screening Committee and was representing MOC i.e. the nodal Ministry was duty bound to raise a query as to why the name of a company which has been placed under Category-VI by Ministry of Steel is being proposed and more- so when eight other companies are already available in higher categories as recommended by Ministry of Steel itself. Even if it is stated that Sh. K.S. Kropha was not competent to raise a query but than at least while offering his comments to the Screening Committee he was expected to point out to the Screening Committee that in the Ministry of Steel recommendations sent to MOC there are eight (8) other applicant companies placed in higher categories than company M/s VMPL. Moreover apart from representatives of Ministry of Steel, only the officers of MOC could have pointed out the aforesaid fact before the Screening Committee as the recommendations sent by Ministry of Steel to MOC were admittedly available in the Screening CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 330 of 467 Committee either with Ministry of Steel officers or with Ministry of Coal officers only. It has specifically come on record that the recommendations of Administrative Ministries as were sent to MOC were not supplied to other members of Screening Committee.
402. Thus if such a comment was not offered by A-5 K.S. Kropha Joint Secretary, MOC then it was for him to explain only as to the circumstances in which he chose not to make such a comment or to disclose the said information to the Screening Committee. In fact the minutes of 36th Screening Committee are otherwise completely silent in this regard. No question or suggestion was even put in this regard either to DW-5 Bhaskar Khulbe or to DW-6 Shivraj Singh or to PW-12 Sh. N.R. Dash or even to PW-14 Shashi Ranjan Kumar who all were admittedly present in the Screening Committee meeting, that any such comment was offered by Joint Secretary Coal, Sh. K.S. Kropha.
403. The other side of aforesaid circumstances is that even Ministry of Steel representative had also not proposed the name of M/s VMPL for allocation of Moira-Madhujore coal block and it was MOC officers themselves only who proposed the name of M/s VMPL for allocation of Moira-Madhujore coal block. PW-12 Sh. N.R. Dash who was present alongwith Sh. U.P. Singh, the then Joint Secretary, Ministry of Steel also stated in his deposition that Ministry of Steel had only reiterated its recommendation in the Screening Committee meeting as were already sent by them to MOC. No question or suggestion was even put to the said witness that the name of M/s VMPL was proposed by representative of Ministry of Steel in the CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 331 of 467 Screening Committee meeting.
404. Thus the aforesaid conclusion about the probable course of action in which the discussion qua A-1 M/s VMPL to be recommended for Moira-Madhujore coal block must have gone in the Screening Committee meeting held on 03.07.08, appears to be the only logical conclusion arising from the evidence led on record both by the prosecution and the accused persons. An attempt has only been made by the Court to reconstruct the sequence of events which could have taken place in the Screening Committee meeting held on 03.07.08, if at all any discussion/deliberation took place over there. Moreover the sequence of events so charted is also based on the deposition of DW-6 Shivraj Singh, who was representing State of Chattishgarh in the Screening Committee and was examined as a defence witness by A-5 K.S. Kropha himself. Further more as the minutes of meeting are completely silent as to who actually proposed the name of M/s VMPL so from the aforesaid deduction of logical steps, it stands well established that the name of M/s VMPL could have been proposed only by MOC officers present in the Screening Committee meeting and by none else. At the cost of repetition, I may also state that if K.S. Kropha, Joint Secretary, Coal/Member Convener of the Screening Committee had not opposed the name of M/s VMPL by disclosing complete and correct information before the Screening Committee, then even if the same was proposed by any other member of the Screening Committee then also the same is illustrative of yet another instance of abdication of his duty by him.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 332 of 467 Similar is the role played by A-4 H.C. Gupta who was chairing the meeting. Thus if a company whose name was neither recommended by the state government where the coal block in question was situated i.e. by State Government of West Bengal nor by DIPP and the Ministry of Steel which was the concerned Administrative Ministry had chosen to place M/s VMPL in category-VI while placing eight other companies in higher categories, then it was incumbent upon the MOC officers i.e. A-4 H.C. Gupta and A-5 K.S. Kropha who were the Chairman and Member Convener of the Screening Committee respectively to at least put the things in right prospective during the course of deliberations itself. Moreover it was least expected of them that if recommendation in favour of any company is being made then reasons thereof are duly mentioned in the minutes so that the competent authority ie. Minister of Coal would have known the actual facts or circumstances in which recommendation in favour of such a company was made. Moreover since the function being discharged by the Screening Committee was of utmost public importance and pertained to allocation of important nationalized natural resources of the country so due objectivity and transparency was required to be maintained in the entire process so that the reasons for recommending such a company for allocation of a captive coal block are apparent from the face of record.
Thus irrespective of the fact as to whether separate minutes of all five meetings of 36 th Screening Committee ought to have been recorded or not, the fact remains that the minutes so CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 333 of 467 recorded ought to have disclosed the process adopted by the Screening Committee in arriving at its recommendations in favour of certain companies or as to why other companies have not been selected. The two elements of objectivity and transparency qua which it has been claimed that accused MOC officers were repeatedly insisting upon in MOC were the first casualty when the occasion demanded the same from them. Even if their earlier proposal to do away with the Screening Committee route was not accepted and they were thus compelled to continue to follow the Screening Committee route only then the least they could have done was to ensure complete transparency and objectivity in the entire process. The best course to do so would have been to strictly follow the guidelines and to record reasons for their every action. Consequently the minutes of the meeting would have disclosed very fairly the entire process followed or the reasons as to why certain companies were chosen to be recommended as compared to the claims of other applicant companies.
Moreover the fact that M/s VMPL which was so recommended was found to be having the least prepared status towards setting up the proposed end use project as the very land alloted to it by BIADA was already cancelled and was even found to have misrepresented in its application as regard its financial strength and existing and proposed capacity, so grave doubts does arise about the conduct of accused MOC officers in the entire process or as regard the reasons, if any for selecting M/s VMPL over the other CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 334 of 467 competing applicant companies.
At this stage, I would also like to mention that if for any given coal block none of the applicant company(ies) was found to be suitable then there was no compulsion upon the Screening Committee to compulsorily make recommendation for allotment of said coal block in favour of one or the other applicant company(ies).
405. At this stage, it will be also appropriate to deal with yet one other argument put-forth by the accused persons and especially as was argued on behalf of A-5 K.S. Kropha and A-6 K.C. Samria that on account of the existing capacity of sponge iron plant of company M/s VMPL, even though in West Bengal, the company ought to have been placed in category-II and not in category-VI as was done by Ministry of Steel.
406. However PW-12 N.R. Dash in whose cross-examination the said suggestion was put by Ld. Counsel for accused public servants strongly refuted the said claim by stating that in accordance with the criteria adopted by Ministry of Steel, both the existing as well as the proposed capacity of the end use project ought to have been at the same place. Thus as regard M/s VMPL, it was stated by him that as the existing capacity of the company was at West Bengal whereas the proposed end use project was to be established in Bihar so Ministry of Steel while categorizing the company as per their criteria did not consider the existing capacity at West Bengal and consequently placed the company in category-VI.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 335 of 467
407. Ld. Counsels for the accused public servants however disputed the said claim of PW-12 N.R. Dash and stated that the company M/s VMPL was wrongly placed in category-VI by Ministry of Steel and it ought to have been placed in category-II.
408. In this regard I may however state that the aforesaid argument as regard the category in which M/s VMPL ought to have been placed by Ministry of Steel is completely irrelevant for the simple reason that during the Screening Committee meeting held on 03.07.08 no such discussion at all took place. It is not the case of anyone that in the Screening Committee meeting any such issue arose or was discussed at all. Even if the argument put-forth by Ld. Counsels for the accused public servants is presumed to be correct then also any such realisation now during the course of trial is of no consequence at all. What is being examined in the present proceedings is as to on what considerations M/s VMPL came to be recommended for allocation of a captive coal block. The question which thus arises for consideration is whether in the Screening Committee meeting held on 03.07.08 this fact was pointed out to representative of Ministry of Steel or not. Since it is not the case of anyone that this issue was raised in the Screening Committee meeting itself much less discussed and deliberated upon so it can not be even remotely presumed that recommendation in favour of M/s VMPL for allocation of a captive coal block was made after realising the aforesaid alleged mistake in the recommendations made by Ministry of Steel. Once again the minutes of the meeting which is the CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 336 of 467 only written record available in this regard of the contemporary period is completely silent qua this aspect. No presumption can thus be drawn that even though not recorded in the minutes but such discussion did take place in the meeting or that any such discussion must have taken place.
409. In these circumstances there does not arise any need to examine as to whether M/s VMPL ought to have been placed in category VI or category II. However, I may state that the issue regarding existing plant of A-1 M/s VMPL at West Bengal will also arise for consideration at a slightly later stage when it will be discussed as to for which plant of the company, the Screening Committee had recommended allocation of a captive coal block. Moreover by calling upon this Court to consider the categorisation of the company under one or the other category(ies) as were devised by Ministry of Steel, the accused MOC officers are primarily asking this Court to consider their oral claim which is not supported by any written record and when especially such written record ought to have existed if at all any such discussion had taken place in the Screening Committee meeting.
410. Be that as it may from the records of the case and the overall facts and circumstances of the case as discussed above, it cannot be even presumed for the sake of arguments that in the Screening Committee meeting any discussion qua the categorisation of A-1 M/s VMPL in terms of the categories devised by Ministry of Steel at all took place.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 337 of 467
411. At this stage it would be now also worthwhile to briefly discuss the status of various companies who had applied for allocation of Moira-Madhujore coal block before the 36th Screening Committee.
412. Total number of applicant companies qua whom Ministry of Steel had sent the detailed status and categorisation vide Office Memorandum dated 06.12.2007 Ex. PW 1/H-5 (Colly) was 125. The said companies had applied for various coal blocks situated in different States. Out of them Thirty-One (31) companies were placed under "NIL" Category. Forty-Nine (49) companies were placed under category VI. Forty-Five (45) companies were however placed in the five other categories i.e. from Category I-V.
413. However, before proceeding further it will be appropriate to once again reproduce over here for a ready reference, the various categories as were devised by Ministry of Steel. The said criteria as was communicated to MOC by PW 12 N.R. Dash vide Office Memorandum dated 14.12.2007 Ex. PW 12/A (Colly) [available from page 289 to 290 in file Ex. P-6 (colly) (D-10)] read as under:
"Guidelines to be followed for the consideration of allotment of coal block.
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.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 338 of 467 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 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.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 339 of 467
(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."
414. While placing the applicant companies under one or the other category, Ministry of Steel had however considered the information furnished in their applications by the applicant companies only. As regard Moira-Madhujore Coal Block Twenty-Nine (29) companies had in fact applied. Out of them Eight (8) companies were placed by Ministry of Steel in category I-V. Nineteen (19) companies including M/s VMPL were however placed in Category VI. The remaining two companies were however not assigned any category.
415. On the other hand, DIPP vide Office Memorandum dated 16.05.2007 Ex. PW 14/A (colly) [available from page 1A to 37 in file Ex. P-6 (colly) (D-10)] had recommended fifteen (15) companies for allocation of one or the other coal block from out of ninety-five (95) applicant companies belonging to cement sector as were received by it from MOC. As regard Mora-Madhujore Coal block M/s Lafarge India Pvt. Ltd was recommended by DIPP.
416. Coming now to the total recommendations made by 36 th CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 340 of 467 Screening Committee in its meeting held on 03.07.2008 for various coal blocks including Moira-Madhujure Coal block it will be pertinent to mention that for 23 coal blocks which were under consideration Thirty-Eight (38) companies in all were recommended. Out of them Twenty-Six (26) companies so recommended were engaged in Iron & Steel sector and the other Twelve (12) companies were engaged in Cement sector.
417. Further from out of Twenty-Six (26) companies engaged in iron and steel sector so recommended by 36 th Screening Committee, Fifteen (15) companies were from out of Forty-Five (45) companies which were placed in category I-V by Ministry of Steel. Eight (8) companies were from out of Forty-Nine (49) Companies placed in Category VI by Ministry of Steel. Three (3) Companies were however recommended from out of Thirty-One (31) Companies placed under category "NIL" by Ministry of Steel i.e. companies who were assigned no category.
418. As regard Twelve (12) Cement companies which were recommended for allocation by 36th Screening Committee ten (10) companies were from out of those Fifteen (15) companies which were recommended by DIPP also. However, Two (2) other companies so recommended by the Screening Committee were in fact not recommended by DIPP for allocation of any coal block. The remaining five (5) companies though recommended by DIPP were however not recommended for allocation of any coal block by the 36 th Screening Committee.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 341 of 467
419. As regard Moira-Madhujore Coal block Six (6) companies were in fact recommended by the Screening Committee for joint allocation. From out of the six companies so recommended namely (1) Ramsarup Lohh Udyog, (2) Adhunik Corporation Ltd, (3) Uttam Galva Steels Ltd, (4) Howrah Gases Ltd, (5) Vikash Metal & Power Ltd and (6) ACC Ltd, five (5) companies were engaged in Iron & Steel sector and One (1) company was engaged in Cement sector. From out of five (5) companies engaged in Iron & Steel Sector, three (3) companies were from out of those companies which were placed under category VI by Ministry of Steel. One other company i.e. Ramsarup Lohh Udyog recommended by the Screening Committee was however placed under "NIL" category by Ministry of Steel. The fifth company recommended by the Screening Committee was placed in category II by Ministry of Steel.
420. Thus from out of Twenty-Nine (29) companies which had applied for Moira-Madhujore Coal block, Twenty-Four (24) companies were not recommended by the Screening Committee for allocation of any coal block. Moreover as earlier also mentioned from out of eight (8) companies which were placed in Category I-V by Ministry of Steel only two (2) companies were recommended for allocation of one or the other coal block i.e. one for Moira-Madhujore coal block and the other for some other coal block. There were Three (3) other companies who had though applied for Moira-Madhujore coal block but were recommended for allocation of some other coal block by the Screening Committee.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 342 of 467
421. For a ready reference the aforesaid detailed facts have been tabulated as under also:
A) Recommendations made by Ministry of Steel to MOC vide Office Memorandum Ex. PW 1/H-5 (colly) (D-13).
1 Total number of companies 125(i) Total number of companies placed under category I-V 45
(ii) Total number of companies placed under category VI 49
(iii) Total number of companies placed under category 31 "NIL"
Total 125B) Recommendations made by D.I.P.P. to MOC vide Office Memorandum Ex. PW 14/A (colly) (D-10).
1 Total number of applications received by D.I.P.P qua 95 cement sector 2 Total number of companies recommended 15 C) Total Recommendations made by 36 th Screening Committee with respect to 23 Coal Blocks in terms of Minutes Ex. PW 1/L (colly) (D-11).
1 Total Recommendations made 38 companies
(i) Total number of companies engaged in Iron & Steel 26
sector
(ii) Total number of companies engaged in cement sector 12
Total 38
D) Bifurcation of 26 companies engaged in Iron & Steel sector as were recommended for allocation of captive coal blocks by 36 th Screening Committee vis-a-vis the recommendations of Ministry of Steel.
1 Companies under category I-V 15 2 Companies under category VI 8CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 343 of 467 3 Companies under category "NIL" 3 Total 26 E) Bifurcation of 12 companies engaged in cement sector as were recommended for allocation of captive coal blocks by 36 th Screening Committee vis-a-vis the recommendations of D.I.P.P.
1 Companies recommended by D.I.P.P 10 2 Companies not recommended by D.I.P.P 2F) Status of applicant companies engaged in Iron and Steel sector who applied for allocation of Moira Madhujore Coal Block.
1 Total companies applied 29 (i) Companies placed in category I-V 8 (ii) Companies placed in category VI 19 (iii) Companies placed in category "NIL" 22 Companies from category I-V recommended by 36 th 1 Screening Committee for allocation of Moira Madhujore coal block 3 Companies who were recommended for other coal 4 blocks 4 Companies not recommended for allocation of any 24 coal block G) Status of six companies who were recommended for joint allocation of Moira Madhujore coal block by 36 th Screening Committee vis-a-vis recommendations of Ministry of Steel and that of D.I.P.P.
1 M/s Howrah Gases Ltd Category - II (Ministry of Steel) 2 M/s Adhunik Corporation Ltd Category - VI (Ministry of Steel) 3 M/s Uttam Galva Steels Ltd Category - VI (Ministry of Steel) 4 M/s Vikash Metal & Power Ltd Category - VI (Ministry of Steel) 5 M/s Ramsarup Lohh Udyog Ltd Category - NIL (Ministry of Steel) 6 M/s ACC Ltd Recommended for Kesla/Rajhara Coal Block by D.I.P.P. and not for Moira Madhujore coal block.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 344 of 467
422. The whole purpose of carrying out the aforesaid extensive analysis is only to highlight that though there appears to have been conscious decision by the Screening Committee of selecting some companies and eliminating others but neither the Minutes of Screening Committee nor any subsequent noting in the files of MOC throws any light at all as to the reasons or process adopted for selecting some companies and not selecting others. The purpose of the entire exercise is not to either suggest or to substitute the decision of the Screening Committee qua any company in any manner but to only highlight that in the entire process of coal block allocation the twin concepts of objectivity and transparency were completely thrown to wind. Nothing is ascertainable from the record as to on what basis the inter-se priority or inter-se merit was arrived at from amongst the various competing applicant companies who had applied for allocation of Moira-Madhujore coal block. The proceedings of Screening Committee or that of MOC are completely silent in this regard.
423. It is in these circumstances, the submissions of Ld. Counsels for accused public servants that if the reasons for selecting some companies for being recommended for allocation of coal blocks or for not selecting the others were to be recorded in the minutes itself then the same would have run into hundreds of pages, certainly appears to be a lame excuse so as to cover up their arbitrary and malafide acts of exercise of discretion.
424. When the aforesaid selection of some companies and CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 345 of 467 elimination of others is seen in the light of deposition of DW-5 Bhaskar Khulbe and that of DW-6 Shivraj Singh then it is found that in the Screening Committee meeting held on 03.07.08, the Screening Committee within a time period of about 1 ½ hour arrived at its recommendations while discussing about 674 applications and that too for 23 coal blocks. The said meeting undisputedly started at 3 PM. In fact while suggesting the date of Screening Committee to be held on 03.07.08, A-4 H.C. Gupta also indicated the time of proposed meeting as 3 PM [At note sheet page 32 in file Ex. P-7 (Colly) (D-11)]. The attendance sheet of officers who participated in the meeting held on 03.07.08 also stated the meeting time as 3 PM. It is in these circumstances, difficult to believe as to how the Screening Committee deliberated on the information furnished by various applicant companies and also on various factors as are mentioned in the minutes of 36th Screening Committee meetings.
At this stage, it would be worthwhile to refer to the relevant portion of the minutes Ex. PW 1/L (Colly) (D-11) over here:
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: The capacity indicated in the application form;
The capacity indicated in the MOU entered into between the CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 346 of 467 applicant company and the State Govt. concerned, wherever applicable;
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 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)
425. It is in the aforesaid circumstances being repeatedly emphasized that the minutes Ex. PW 1/L (Colly) (D-11) of 36 th Screening Committee do not reflect any reasons much less any process on the basis of which the committee arrived at its recommendations. In fact it was only the main application of each company as was submitted in the prescribed format which was part of the agenda note. The various supporting documents are no where shown to have been considered by the Screening Committee. In fact at a slightly later stage I shall be also discussing and demonstrating that a perusal of the application of M/s VMPL would have also indicated to the MOC officers that the applications have not been checked for their completeness and eligibility.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 347 of 467
426. It is thus crystal clear that the guidelines issued by MOC for ascertaining inter se priority from amongst the competing applicants were not at all followed. The over all facts and circumstances as mentioned above thus clearly points to only one irresistible conclusion that the accused MOC officers whose duty was it to ensure compliance with the guidelines did not do so only because they wanted to extend some undue benefit to certain companies and that too as against the public interest. They thus clearly abused their position as such.
427. At this stage I may again mention that the aforesaid sequence of events relating to proceedings of the Screening Committee have been deduced not by way of any presumption or assumption but are the necessary and natural corollary emerging out from the evidence led by the prosecution as well as by the accused persons themselves.
(d) Significance of signing the recommendation sheets by the members of Screening Committee in its meeting held on 03.07.2008 and whether it conveys unanimity.
428. It has been also strongly argued by Ld. Counsels for the accused public servants that the very factum of signing of recommendation sheets by the members of Screening Committee at the conclusion of the meeting held on 03.07.08 clearly shows that they all were in agreement with the recommendations so made by the Screening Committee on that date. It was also argued that since CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 348 of 467 none of the members made any dissent note on the recommendation sheets so the same also shows that all the decisions taken in the Screening Committee meeting were unanimous and all the members had consented to the same.
My Discussion
429. At the outset, I may state that the aforesaid argument though appears to be forceful but is completely not tenable especially in view of my earlier discussion wherein it has been concluded that qua discussion pertaining to any coal block situated in a given state, it was only the representative of the said coal bearing state and the state where the proposed end use project was to be established who were only concerned with the discussion and not the representatives of all state Governments. Representatives of MOC were common factors in discussion of all coal blocks under consideration as Ministry of Coal was the Nodal Ministry. Further if the applicant companies who had applied for allocation of any given coal block were proposing to establish iron/sponge iron/steel project then Ministry of Steel representative was also the concerned member and in case any company seeking allocation of the said coal block was proposing to establish a cement project then representative of DIPP was also a concerned member to the discussion. Representatives of CIL and CMPDIL were admittedly concerned only with the technical aspect of the matter. However the representatives of none of the other State Governments or that of Ministry of Power were in any manner concerned with the said discussion. In these circumstances if despite CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 349 of 467 the aforesaid admitted position, all the members of the Screening Committee were asked to put their signatures on the recommendation sheets qua all coal blocks then in no way the factum of signing the recommendation sheets can signify either their consent or unanimity in the decision of the Screening Committee.
430. DW-6 Shivraj Singh in fact stated in his deposition that apart from making a general statement in the beginning of the meeting held on 03.07.08, he had offered his comments qua the coal blocks situated in the State of Chhattisgarh only. He further stated that as he was not concerned with the coal blocks situated in other states as long as none of the applicant companies seeking allocation of any such coal block had proposed to establish its end use project in State of Chattisgarh so no comments were offered by him in the discussion qua other coal blocks. Admittedly copies of applications of various applicant companies were not sent to all members of the Screening Committee. DW-6 also deposed that during the course of Screening Committee meeting he had also gone out to have tea etc for about 30 minutes and similarly some other members had also gone out of the meeting hall. Thus from the aforesaid circumstances, it is clear that when all the members present had not participated in the discussion qua each of the coal block under consideration or qua each of the applicant company then it can not be concluded by any stretch of imagination that mere signing of recommendation sheets at the end of meeting signifies that all decisions were taken with unanimity or that all the members were in agreement with the decisions so taken.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 350 of 467
431. The aforesaid conclusion further gets fortified when it is found that even the five recommendation sheets prepared in the meeting held on 03.07.2008 were not signed by all the members present. In the cross-examination of DW-6 Sh. Shivraj Singh it has been demonstrated by Ld. Sr. P.P. that while the recommendation sheet with respect to coal blocks situated in the state of Madhya Pradesh was signed by 16 members of the Screening Committee but the recommendation sheet with respect to coal blocks situated in the state of Jharkhand was signed only by 14 members. Similarly the recommendation sheet with respect to coal blocks situated in the state of Maharashtra was also found to have been signed by 14 members only. On the other hand the recommendation sheet with respect to coal blocks situated in the state of West Bengal was signed by 15 members. Strangely enough the recommendation sheet with respect to coal blocks situated in the state of Chhattisgarh was found to have been signed only by 13 members of the Screening Committee. It was also found that none of the five recommendation sheets as above were signed by representatives of MOC i.e. neither by A-4 H.C. Gupta, who also was the Chairman of the Screening Committee nor by A-5 K.S. Kropha who was the Member Convener of the Screening Committee.
The aforesaid facts not only demonstrate as to how casual and perfunctory was the functioning of Screening Committee but it also reinforces the conclusion that as the various recommendation sheets were not signed by all the members present CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 351 of 467 including MOC officers so by no stretch of imagination can it be concluded that signing of recommendation sheets in any manner conveyed that all the decisions of the Screening Committee were taken with unanimity.
432. The factum of non-signing of recommendation sheets either by A-4 H.C. Gupta, Chairman, Screening Committee or by A-5 K.S. Kropha, Member Convener, Screening Committee much less by any other representative of MOC also takes away the very ground beneath yet another argument put-forth by Ld. Counsels for accused public servants that in the Screening Committee meeting, A-4 H.C. Gupta, and A-5 K.S. Kropha, despite being Chairman, Screening Committee and Member Convener, Screening Committee, respectively, were having no special powers or status and were like any other member of Screening Committee only.
Had it been so then there was no reason as to why both A-4 H.C. Gupta and A-5 K.S. Kropha, did not sign the recommendation sheets qua any of the coal blocks situated in any state. In fact the overall facts and circumstances suggest that MOC being the Nodal Ministry with respect to allocation of coal blocks situated in the country was in fact having a special status in the entire process. Even though the purpose of constituting the Screening Committee was to know the views of all stakeholders at one single platform and thereafter to expedite the entire process but irrespective of the aforesaid purpose for which Screening Committee was constituted, it is clear that the MOC Officers were enjoying a special CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 352 of 467 status in the meeting being representatives of the nodal Ministry.
Moreover was it not the duty of A-4 H.C. Gupta being Chairman of the meeting and of A-5 K.S. Kropha, being the Member- Convener to ensure that the proceedings of Screening Committee takes place in accordance with all rules and regulations and that the guidelines regulating the exercise of discretion by Screening Committee are duly followed and complied with. It has also come on record that the various recommendation sheets were filled by A-6 K.C. Samria himself before members signed them so A-6 K.C. Samria can not disown his responsibility towards ensuring that the recommendation sheets are duly signed by all members present including that of MOC. Since applications were received in the name of Director CA-I Section so A-6 K.C. Samria being an officer of MOC holding a responsible position in MOC and rather forming a crucial link in the chain connecting MOC and the Screening Committee so he can not simply disown his responsibility by shifting his responsibility qua the working of Screening Committee upon A-4 H.C. Gupta and A- 5 K.S. Kropha and in MOC upon CA-I Section officials. His role was distinctly marked by MOC itself as his office was identified as the first place of contact where all the applications form various applicant companies desirous of seeking allocation of captive coal blocks were to be received and further processed. Moreover he was also the Director in-charge of CA-I Section in MOC and which section used to deal with coal block allocation matters.
433. Thus if in the light of aforesaid discussion deposition of PW-
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 353 of 467 12 N.R. Dash, PW-14 Shashi Ranjan Kumar, DW-5 Bhaskar Khulbe and DW-6 Shivraj Singh is seen then it is found that the recommendations made by the Screening Committee and especially as made qua Moira-Madhujore coal block in favour of M/s VMPL can not be stated to be unanimous in any manner.
PW-12 N.R. Dash stated that during the Screening Committee meeting no methodology was adopted to decide the interse priority or interse merits of the applicant companies. He also deposed that neither any point system nor any marking system was adopted by the Screening Committee for deciding the interse merits of the applicant companies. He also deposed that discussion was held in the meeting on the general guidelines only. He also deposed that during the course of discussion whenever any dissent/objection was raised by any member qua any given coal block then the final decision used to be of Secretary, Coal who was chairing the meeting. Even as regard the compilation chart which was stated to have been supplied in the initial meeting of 36 th Screening Committee he stated that the same was a bulky document and was in fact a compilation of the initial pages of the applications only.
In fact PW-12 N.R. Dash while referring to the said compilation primarily referred to the agenda note prepared by MOC qua 36th Screening Committee meetings. He also admitted it to be correct that in his statement u/s 161 Cr.PC, he stated to the IO that the policy objective of Ministry of Steel was to maximize or increase production of steel and that giving a coal block to a company which is CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 354 of 467 in a better category recommended by the Ministry of Steel would satisfy the policy objectives. He further denied having stated to the IO that due weight-age was to be also given to the recommendations of the state governments and stated that he in fact had stated to the IO that recommendations of the state governments were also discussed in the Screening Committee meeting. He also stated that during the course of discussion objections were raised on behalf of Ministry of Steel even though no written dissent note was given. In fact the said statement of his was not even controverted by way of putting any suggestion to the contrary.
434. Similarly PW-14 Shashi Ranjan Kumar who was representing DIPP in the Screening Committee meeting stated that though he had put forward in the meeting, the recommendations of DIPP as were already sent to MOC and also admitted having signed the recommendations sheets but stated that he distinctly remember that in the said meeting no decision was arrived at. He also deposed that no marking system or point system was adopted to be assigned to any given factor and even no methodology was explained to the members as to on what basis the Screening Committee shall arrive at its decision. He also deposed that in none of the meetings of 36 th Screening Committee meeting no interse priority chart or interse merit chart or comparative chart or data base which could have helped in assessing the interse priority/merit of the applicant companies was supplied to the members. He also deposed that the chairman of the Committee i.e. A-4 H.C. Gupta was having the final say in the CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 355 of 467 meeting. In his cross-examination also he reiterated that in his statement u/s 161 Cr.PC he had stated to the IO that no exact mathematical modeling was adopted for arriving at a decision and meaning thereby that no eligibility criteria was spelled out. In his cross-examination he also deposed that in his statement u/s 161 Cr.PC he had stated to the IO that there were conflicting opinions in the meeting and the reconciliation of the views was done by the MOC. He further stated that though in view of conflicting opinions, the common view point could not have been arrived by reconciliation and thus the final decision was to be taken by MOC. He also deposed that in order to arrive at a common point of view there ought to be some measurable criteria on which various applicant companies would have been ranked. He further stated that if difference of opinion continued in the meeting amongst members then MOC has to arrive at a final decision and the views of the administrative departments could not be binding.
435. In fact DW-6 Shivraj Singh (examined by A-4 H.C. Gupta in his defence) in his deposition stated that while some decisions qua allocation of few coal blocks in favour of certain companies were unanimous but other decisions were taken by way of broad consensus. He stated that in all such cases where there was a difference of views/opinion between State Government representatives and the representatives of administrative Ministry then discussion used to take place and Chairman Screening Committee used to announce the final decision based on broad CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 356 of 467 consensus. He specifically denied that all the decisions taken in the Screening Committee meeting were unanimous.
436. DW-6 Shivraj Singh also stated in his cross-examination conducted by Ld. Sr. P.P. that in the meeting during the course of discussion differing views were expressed by the members present in as much as Central Government representatives were saying that a given coal block be allocated to a company(ies) but the state representatives were saying that it be allocated to a company(ies) proposing to establish their projects in their states. He however admitted that in the minutes no such differing views were mentioned though the concern raised by the state government representatives was duly recorded in the minutes. He also admitted that in the meeting no marking system to be assigned to any given applicant company was adopted and even no interse priority chart/interse data base which could show as to which of the applicant company was better placed for being recommended for allocation of a given coal block was supplied.
437. On similar lines is the deposition of DW-5 Bhaskar Khulbe, the representative of State Government of West Bengal who also was examined on behalf of A-4 H.C. Gupta. In his deposition he also stated that during the course of discussion he had put the views/recommendations of Government of West Bengal qua Moira- Madhujore coal block and the Ministry of Steel had put forward its own views/recommendations. He further stated subsequently that the summed up recommendations of the Screening Committee were CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 357 of 467 recorded. He also deposed that after hearing the concerned representatives qua every coal block, the Chairman used to tell as to what is the final recommendation being made by the Screening Committee. In his cross-examination as was conducted by Ld. Counsel for A-5 K.S. Kropha he in answer to a specific question put to him stated that though the recommendations can certainly be termed as recommendations of Screening Committee but to say that the said recommendations were unanimous or consensus based will not be proper. Thereafter in his cross-examination as was conducted by Ld. Sr. P.P. he stated that during the course of meeting held on 03.07.08 no interse priority chart or interse merit chart or interse data chart or any database was provided to the members of Screening Committee from which it could be ascertained as to which of the applicant company was better placed. He also admitted it to be correct that during the course of meeting no document was supplied to members of Screening Committee from which either the suitability of the block to the requirement of the end use plant, or techno- economic viability of the project or level of progress for setting up of end use project by applicant or track record and financial strength of the company could be ascertained. He also stated that no recommendation of Ministry of Steel was even supplied to members of Screening Committee either before or during the course of meeting held on 03.07.08. He further admitted having stated to the IO in his statement u/s 161 Cr.PC the following facts:
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 358 of 467 "MOC had not provided enough inputs to the members of the Screening Committee and that I am of the view that it was the primary decision of the Central Government and we were only aiding the Central Government."
438. He also stated that as the minutes of the meetings were subsequently drawn up and as no discussion on any of the factors which took place in the meeting is mentioned in the minutes, so the facts have been wrongly recorded in the minutes.
439. At this stage it would be also worthwhile to mention that in the minutes Ex. PW 1/L (Colly) it is nowhere mentioned that the recommendations made are unanimous or have been made with the consent of all.
440. Thus in view of the aforesaid nature of deposition of prosecution and defence witnesses coupled with the overall facts and circumstances of the case as have been extensively discussed above and also the fact that mere signing of recommendation sheets do not reflect the unanimity of the Screening Committee members to any given decision so it can not be concluded by any stretch of imagination that recommendations so made by the 36 th Screening Committee meeting held on 03.07.08 were unanimous. Once again to hold to the contrary will amount to a situation where oral claims of the accused MOC officers are being pressed to be accepted as true and correct even though no contemporary record exists and especially when such record ought to have been prepared. The oral claims made by accused MOC officers thus does not inspire confidence at all.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 359 of 467
441. Having thus concluded that the recommendations made by 36th Screening Committee were not unanimous, it will be now also instructive for a proper assessment of the prosecution case to see as to how the minutes Ex. PW 1/N (Colly) (D-11) of 36 th Screening Committee as were subsequently prepared in MOC were processed initially in MOC and subsequently in PMO before they were finally approved by Prime Minister as Minister of Coal.
G (viii) Processing of minutes of 36 th Screening Committee meeting in Ministry of Coal and in PMO leading to approval of the recommendations by Prime Minister as Minister of Coal.
442. As already mentioned the minutes Ex. PW 1/L (Colly) of 36 th Screening Committee were subsequently prepared in MOC in such a cryptic manner that nothing is ascertainable as to what all discussion or views/opinions were expressed by different members in the screening committee meeting. However as earlier also mentioned under the Transaction of Business Rules, 1961 it was the responsibility of Secretary of concerned ministry to reproduce the views/opinions expressed by other ministries whose work is being impacted by the issues being considered by the Nodal Ministry. Mentioning of such views/opinions of all concerned departments/ministries or that of State Governments could only have facilitated the Minister In-charge who in the present case was incidentally the Prime Minister himself to take an objective decision as to whether the matter requires further consideration or in view of conflicting views/opinions of certain ministries or State Governments, CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 360 of 467 it requires to be referred to Cabinet or to any of its Committees for appropriate decision, or not. Not only the minutes were completely silent about any such views/opinions expressed by the members but even it has been already discussed and demonstrated at length that the same were even not correctly recorded. The deposition of not only prosecution witnesses but that of defence witnesses examined on behalf of accused public servants themselves amply support the aforesaid conclusion. However, subsequently when the minutes were prepared and processed in MOC vide a detailed note dated 10.07.2008 Ex. PW1/M-1 (D-11) of CA-1 Section then the same got routed through the desk of Sh. R.N. Singh Section Officer, PW 1 Sh. V.S. Rana Under Secretary, CA-1 Section, A-6 K.C. Samria Dy. Secretary, CA-1 Section and A-5 K.S. Kropha Joint Secretary (Coal) before they came to the desk of A-4 H.C. Gupta Secretary (Coal), who also was the Chairman, Screening Committee. Thereafter vide a detailed note dated 14.07.2008 Ex. PW 1/M-2 (D-11) A-4 H.C. Gupta not only approved the minutes but also forwarded the same with recommendations of Screening Committee to Prime Minister as Minister of Coal through the desk of Minister of State for Coal. The file thereafter got cleared from the desk of Minister of State for coal on 14.07.2008 itself. Subsequently when the file was received in PMO then the same was processed by Sh. Ashish Gupta, Director PMO vide his detailed note dated 16.07.2008 [available at note sheet pages 52-58 being part of Ex. PW 10/B (colly) in file Ex. P-34 (colly) (D-11)]. The said note primarily reproduced the notings of MOC while putting up the file to Joint Secretary PMO i.e. PW 10 Ms. Vini CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 361 of 467 Mahajan. The note sheet page 58-59 of the file of PMO further shows that PW 10 Ms. Vini Mahajan thereafter processed the matter vide her detailed note dated 16.07.2008 and submitted the file to Principal Secretary to PMO Sh. T.K.A. Nair. Thereafter, Sh. T.K.A. Nair further forwarded the file to Prime Minister Dr. Manmohan Singh on 16.07.2008 itself and who approved the recommendations of the Screening Committee on 17.07.2008 while approving the note of M/s Vini Mahajan. Accordingly the approval so granted by the Prime Minister as Minister of Coal was conveyed to MOC by Sh. Ashish Gupta vide ID note dated 21.07.2008 Ex. PW 10/C.
443. However, a perusal of the note dated 16.07.2008 put up by PW 10 Ms. Vini Mahajan shows that on 16.07.2008 Principal Secretary to Prime Minister had discussed the matter with Coal Secretary and Steel Secretary and wherein they confirmed that the proposal is based strictly on the merits of the applicants, including the recommendations of State Governments where the blocks are located. The issue regarding modification of Moira-Madhujore Coal Block was also discussed in the said meeting. It was pursuant to the said discussion that the matter was processed in PMO for approval from Prime Minister as Minister of Coal.
444. Thus if the processing of recommendations of Screening Committee initially in MOC and subsequently in PMO is considered in the light of aforesaid notings then it is found that not only while recording the minutes Ex. PW 1/L (colly) (D-11) a conscious effort was made by accused MOC officers to not to mention the reasons or CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 362 of 467 process adopted for recommending company M/s VMPL for allocation of Moira-Madhujore Coal Block but even in the meeting held in PMO with Principal Secretary to Prime Minister it was reiterated by A-4 H.C. Gupta that proposals are based strictly on the merits of the applicants including the recommendations of the State Governments where the blocks are located. Thus when statement made by A-4 H.C. Gupta in the meeting held by Principal Secretary to Prime Minister is seen and examined in the light of over all facts and circumstances of the present case as have been discussed above, than the falsity in the said claims is clearly evident. It was nowhere disclosed either in the minutes or in the meeting at PMO that State Government of West Bengal where the coal block in question was situated had never recommended company M/s VMPL for allocation of any coal block. Similarly, it was also not disclosed as is now being claimed during the course of trial that the said recommendation was primarily on the basis of recommendations of Ministry of Steel. It was also nowhere disclosed that State Government of Bihar was not invited to the Screening Committee meetings and that even comments were also not received from Government of Bihar which could be considered by the Screening Committee. As earlier also mentioned the merits of claims of applicant companies and especially that of A-1 M/s VMPL is also not ascertainable from any of the records prepared at the relevant time, be that of Screening Committee or as were prepared in MOC. The process or procedure, if any adopted in the meeting also does not stands reflected from any such proceedings. In fact when it was claimed by A-4 H.C. Gupta in CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 363 of 467 the meeting at PMO that the proposal is based strictly on merits then as a natural corollary it pre-supposes that the merits of any given applicant company was compared vis-a-vis the claims of other competing applicant companies. It was in this regard only that the interse priority guidelines were issued by MOC. Thus the word "Merit" in itself signifies that same comparative analysis was made amongst the competing applicant companies. However as already discussed that even till today during the course of trial no such comparative merits in favour of company M/s VMPL is ascertainable from the records. It has also been already discussed and demonstrated at length that in the 1 ½ hour long meeting which took place on 03.07.2008 it was impossible for any Committee much less the Screening Committee comprising of representatives of various Administrative Ministries and State Governments to assess the comparative merits of any applicant company [There were 674 companies under consideration for 23 coal blocks.] qua any given coal block from amongst various competing applicant companies that too when no inter se priority chart or inter se merit chart was prepared by MOC prior to the said meeting. The bald submissions made by the accused MOC officers that such an assessment was carried out cannot be believed even for the sake of preponderance of probabilities.
445. In this regard it would be apt to refer to some observations of Hon'ble Supreme Court as were made in para 38-41 in the case Noida Entrepreneurs Association Vs. Noida and others (2011) 6 CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 364 of 467 SCC 508 in almost similar circumstances.
"38. The State or the public authority which holds the property for the public or which has been assigned the duty of grant of largesse, etc. acts as a trustee and, therefore, has to act fairly and reasonably. Every holder of a public office by virtue of which he acts on behalf of the State or public body is ultimately accountable to the people in whom the sovereignty vests. As such, all powers so vested in him are meant to be exercised for public good and promoting the public interest. Every holder of a public office is a trustee.
39. State actions are required to be non-arbitrary and justified on the touchstone of Article 14 of the Constitution. Action of the State or its instrumentality must be in conformity with some principle which meets the test of reason and relevance. Functioning of a "democratic from of Government demands equality and absence of arbitrariness and discrimination". The rule of law prohibits arbitrary action and commands the authority concerned to act in accordance with law. Every action of the State or its instrumentalities should neither be suggestive of discrimination, nor even apparently give an impression of bias, favouritism and nepotism. If a decision is taken without any rule, it is unpredictable and such a decision is antithesis to a decision taken in accordance with the rule of law.
40. The public trust doctrine is a part of the law of the land. The doctrine has grown from Article 21 of the Constitution. In essence, the action/order of the State or State instrumentality would stand vitiated if it lacks bona fides, as it would only be a case of colourable exercise of power. The rule of law is the foundation of a democratic society.
41. Power vested by the State in a public authority should be viewed as a trust coupled with duty to be exercised in larger public and social interest. Power is to be exercised strictly adhering to the statutory provisions and fact situation of a case. "Public authorities cannot play fast and loose with the powers vested in them." A decision taken in an arbitrary manner contradicts the principle of legitimate expectation. An authority is under a legal obligation to exercise the power reasonably and in good faith to effectuate the purpose for which power stood conferred. In this contest, "in good faith" means "for legitimate reasons". It must be exercised bona fide for the purpose and for none other."
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 365 of 467
446. It has been however argued on behalf of A-4 H.C. Gupta that Secretary (Steel) had also affirmed in the said meeting that all the decisions were taken on merits. It was argued that since Secretary (Steel) himself was not present in the Screening Committee meeting held on 03.07.2008 so Sh. U.P. Singh, Joint Secretary (Steel) and PW 12 N.R. Dash, Director, Ministry of Steel who were present in the meeting must have so conveyed to Secretary (Steel) and on the basis of such a briefing only he must have stated in the meeting held in PMO that the decisions are based on merits.
447. In this regard, it would be suffice to state that since Secretary (Steel) himself was not present in the meeting and when it has been clearly stated by the witnesses during the course of present trial that during the course of meeting held on 03.07.2008 they had simply put forth recommendations of their respective departments as were already communicated to MOC and thereafter the final decision was announced by Secretary (Coal) so it is quite obvious that members of Screening Committee had no reason at that time to believe that the final decisions of Screening Committee as were being announced by Secretary (Coal) were not based on merits of the applicant companies. This belief further gets reinforced since the recommendations of various State Governments or Administrative Ministries were available only with MOC apart from that with representatives of respective entities and the said recommendations were never shared by MOC with the other members of Screening Committee. Thus when various members of Screening Committee be CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 366 of 467 that representatives of different State Governments or that of Administrative Ministries were having no access to the recommendations made by other entities so there was also no way for them to know as to in favour of which companies recommendations have been made by such other entities. They thus had no reasons to disbelieve the Ministry of Coal officers that the final decisions being announced by them is not on the basis of merits of the applicant companies. Infact from the over all facts and circumstances of the case as have been discussed above, it is also clear that except for the general discussion which took place in the Screening Committee meeting held on 03.07.2008 the representatives of various entities merely reiterated their respective recommendations and no other discussion qua any of the factors on the basis of which interse priority amongst competing applicant companies was to be arrived at, actually took place. Thus having no reason to disbelieve the bonefides of MOC officers, the representatives of Ministry of Steel must have conveyed to Secretary (Steel) that the decisions are based on merits of the applicant companies.
448. The aforesaid facts also needs to be viewed in the light of yet another circumstance. Admittedly the minutes of 36 th Screening Committee meeting were prepared subsequently in MOC. It is also not disputed that the said minutes before they were forwarded by A-4 H.C. Gupta for approval from Prime Minister as Minister of Coal were never circulated to the members of Screening Committee for CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 367 of 467 confirmation. Thus if at all their could have been any reason for the members of Screening Committee to raise any dissenting view that their views/opinions expressed in the meeting have not been recorded or correctly recorded in the meeting, then the said situation never came prior to approval of the recommendations of Screening Committee by Prime Minister as Minister of Coal. Certainly, after the recommendations were got approved from Prime Minister as Minister of Coal there was no occasion left to representatives of various State Governments or Administrative Ministries to express doubt if any was entertained by them. Thus nothing can be read against the case of prosecution or in favour of accused persons from the mere statement made by Secretary, Steel in the meeting held by Principal Secretary to Prime Minister that the proposals are based on merits of the applicant companies and especially when the said meeting took place before the minutes of the Screening Committee were sent to Ministry of Steel by MOC.
449. Infact, A-4 H.C. Gupta knew very well that Prime Minister as Minister In-charge was to act upon the recommendations of the Screening Committee only. The Screening Committee, as earlier also discussed, was in fact constituted to screen all the proposals and to thereafter make the recommendations objectively and in a transparent manner. Moreover, as Secretary (Coal) A-4 H.C. Gupta was not only the Administrative head of the Ministry but was also the Principal Advisor of the Minister-in-charge on all matters of Policy and Administration within his ministry and thus the responsibility on the CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 368 of 467 part of A-4 H.C. Gupta was all the more onerous in ensuring that complete and correct facts are placed before Prime Minister as Minister In-charge. There was certainly no apparent reason for Prime Minister as Minister In-charge to disbelieve the minutes or recommendations made by 36th Screening Committee and as were forwarded to PMO by A-4 H.C. Gupta and that too when PW 10 Ms. Vini Mahajan had stated in her note dated 16.07.2008 that the Principal Secretary to Prime Minister has discussed the matter with Secretary Coal and Secretary Steel and they stated that the recommendations are strictly based on merits of the applicants and the recommendations of State Governments where coal blocks in question are located. Prime Minister had thus no reasons to doubt that the said minutes do not contain true and correct facts.
450. Thus from the aforesaid discussion, it is clear that A-4 H.C. Gupta malafidely withheld true and correct facts from the Prime Minister as Minister In-charge by first not recording them in the minutes of Screening Committee meeting and later on by representing in the meeting held in PMO that all the proposals are based strictly on the merits of applicants including the recommendations of the State Governments where the blocks are located.
451. At this stage yet another important issue requires discussion i.e. as to for which end use project of company M/s VMPL, 36 th Screening Committee had actually recommended allocation of Moira- Madhujore coal block. This issue requires discussion since in the CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 369 of 467 Screening Committee recommendations as were subsequently approved by Prime Minister as Minister of Coal followed by issuance of offer letter/option letter and the subsequent execution of a joint venture agreement between the joint allocateee companies, it was stated that company M/s VMPL has been recommended for allocation of Moira-Madhujore coal block for its proposed integrated steel plant at Bihar. However strangely enough the final allocation letter subsequently issued by MOC stated that the Moira-Madhujore coal block has been allocated to company M/s VMPL for its proposed plant at Bihar and also for its existing plant at Purulia West Bengal.
Thus I now intend to discuss the said issue, for it will reflect not only the perfunctory nature of working of MOC officers but also the malafide intention of A-5 K.S. Kropha and A-6 K.C. Samria in the entire processing. A discussion of the aforesaid issue in fact is very crucial as the same is illustrative of the object of the criminal conspiracy as was hatched by the private parties involved and wherein they subsequently roped in the MOC officers. My subsequent discussion will amply prove the aforesaid conclusion beyond shadows of all reasonable doubts.
G (ix) Whether Company A-1 M/s VMPL was recommended for allocation of Moira-Madhujore Coal Block by 36 th Screening Committee only for its proposed iron and steel project at Bihar or also for its existing plant at West Bengal.
452. Ld. Counsels for the accused public servants have strongly relied upon the deposition of PW-12 N.R. Dash, the officer of Ministry CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 370 of 467 of Steel who was present in the Screening Committee meeting held on 03.07.08 while arguing that the Screening Committee had actually recommended M/s VMPL both for its plant at Bihar and also at West Bengal. It was pointed out that in his cross-examination, PW-12 N.R. Dash admitted it to be correct that while sending its recommendations to MOC, the Ministry of Steel had calculated the coal requirement of the company M/s VMPL considering its proposed capacity at Bihar and the existing capacity at West Bengal also. He also admitted having stated the following answer to the questions put by the IO in his statement u/s 161 Cr.PC dated 20.11.2014 recorded during the course of investigation:
"During the 36th Screening Committee Meeting held on 03.07.2008 in which allocation of coal blocks were finalized, I was present in the meeting to assist Sh. U.P. Singh, the then Joint Secretary (Steel) who was nominated by Ministry of Steel to participate in the discussions. I remember that the issue of whether to include West Bengal Unit in the total quantity of coal requirement was discussed in the Screening Committee and the Screening Committee had taken a decision to allocate the coal block of M/s Vikash Metal & Power Ltd. for both Bihar and West Bengal Units.
Therefore, the issue of allocation of coal quantity in respect of West Bengal Unit of M/s Vikash Metal & Power Ltd in the letter of Ministry of Steel had been taken with complete transparency without any suppression of facts and has been brought to the notice of Screening Committee which had taken a conscious decision on the matter."
"Question: In the application form and the feedback form of m/s Vikash Metal & Powr Ltd. (for allocation of Moira Madhurore (N&S) Coal block) had mentioned their proposed end use plant at Begusarai, Bihar for setting up 1 MTPA integrated steel plant.
How the Screening Committee took into consideration the fact that M/s Vikash Metal & Power Ltd. had applied for end use project at Bihar and West Bengal and under the circumstances CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 371 of 467 the Coal block was allotted to M/s VMPL for their end use project, both at Bihar and West Bengal.
Answer: In their application form M/s Vikash Metal & Power Ltd. (VMPL) had applied for ultimate capacity of 1.1 MTPA which included their existing capacity 0.13 MTPA and 1 MTPA for proposed plant. In the letter of Ministry of Steel this had been made clear that the existing capacity of 0.13 MTPA was in West Bengal, and 0.6 MTPA proposed eligible capacity was for Begusarai, Bihar plant. Although 0.13 MTPA existing capacity in West Bengal was not shown in the front page of application, this was revealed by the ID Wing, while examining the other details of the application. The issue was discussed in the Screening Committee meeting. It was also discussed that M/s VMPL has already got non-coking coal linkage for its 0.13 MTPA West Bengal Plant. Since the Moira Madhujore Block was located in West Bengal also, it was discussed that by including the requirement of coal for West Bengal Plant (0.13 MTPA) in MOIRA Madhujore Block, the already existing linkage can be withdrawn after development of the coal block. Hence, it was decided to include the requirement of existing plant located in West Bengal in the total quantity of Moira Madhujore Block."
453. It was further submitted by Ld. Counsels for accused public servants that PW-1 V.S. Rana also stated in his deposition that though the existing plant of company M/s VMPL at Purulia, West Bengal was mentioned in the allocation letter but in the initial offer letter/option letter the same was inadvertently left out to be mentioned. It was also submitted by Ld. Defence Counsel that since this mistake in the option letter was never brought to their notice by CA-I Section officials so it was only during the course of investigation of the present case that it came to their notice that in the option letter/offer letter initially issued to A-1 M/s VMPL and to the other five (5) joint allocatee companies, the existing plant of company M/s VMPL at Purulia West Bengal was not mentioned. It has been further submitted that even otherwise allocation of coal block for the existing CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 372 of 467 plant at Purulia West Bengal resulted in withdrawal of linkage of coal already granted to the company and thus instead of extending any benefit, the company was rather put to a loss on account of withdrawal of its existing linkage. It was thus submitted that no adverse inference much less any element of culpability can be found in the aforesaid acts of inadvertent mistakes committed by CA-I Section officials.
454. It was also submitted by Ld. Counsel for accused public servants that the application of M/s VMPL could not have been considered in isolation as being the application submitted in the prescribed format only but it had to read along with all the documents annexed with it. It was thus submitted that PW 12 N.R. Dash has stated that in the TEFR available with the application the location of existing plant at West Bengal was mentioned even though details thereof were not mentioned in the application form itself. It was also submitted that if share of coal of each of the six joint allocattee companies is considered than it is found that the share of M/s VMPL would have been equal to that of other five joint allocattee companies only if its requirement of coal qua its existing plant at West Bengal and that of its proposed plant at Bihar is considered together, otherwise the share of M/s VMPL would have been much higher than that of other five joint allocattee companies.
It was thus submitted that the Screening Committee had accordingly taken a conscious decision after considering all the relevant aspects.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 373 of 467
455. On the other hand Ld. Sr. P.P. strongly opposed the aforesaid submissions stating that if at all the Screening Committee had recommended M/s VMPL for allocation of a captive coal block both for its existing plant at Purulia West Bengal and also for its proposed integrated steel plant at Bihar then the minutes would have stated so. It was also submitted that even the Prime Minister as Minister of Coal had approved allocation of Moira-Madhujore coal block to company A-1 M/s VMPL for its plant at Bihar only and so any subsequent addition of Bengal plant in the allocation letter was clearly an act reflecting malafides on the part of accused public servants as neither the allocation of captive coal block for the existing plant at Purulia West Bengal was recommended by the Screening Committee nor was approved by the Prime Minister as Minister of Coal and in fact company M/s VMPL had also not applied for the same in its application.
My discussion
456. At the outset, I may state that though the submissions made by Ld. Counsels for the accused persons appears to be forceful by projecting it to be a case of certain inadvertent mistakes having been committed by the officials/officers of MOC but a close study of the entire process so undertaken by the Screening Committee and MOC will clearly show that it was actually not so. In fact the addition of the plant at Purulia West Bengal in the final allocation letter appears to be a conscious decision taken post Screening Committee meeting so as CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 374 of 467 to extend undue benefit to company M/s VMPL. As earlier also stated, it may be true that officials of CA-I Section ought to have also pointed out the aforesaid fact while putting up the relevant note along with draft allocation letter but I may once again state that since in the present trial the role of A-4 H.C. Gupta, the then Secretary, Coal and Chairman, Screening Committee, A-5 K.S. Kropha, Joint Secretary, Coal and Member Convener, Screening Committee and A-6 K.C. Samria, Deputy Secretary/Director, CA-1 Ministry of Coal is only being examined so whether the CA-I Section officials including PW-1 V.S. Rana were part of any such collusive act with the senior officers or not may be a matter of some separate proceedings where their role or various acts of omission and commission committed by them will be examined from the point of view of culpability or otherwise.
457. However before entering into any further discussion on the aforesaid aspect, it will be appropriate to reiterate certain factual aspects of the case.
As earlier mentioned the 36th Screening Committee in its final meeting held on 03.07.08 had recommended company M/s VMPL for joint allocation of Moira-Madhujore coal block alongwith 5 other companies. The recommendation sheets Ex. PW 12/D signed by various members of the Screening Committee clearly mentioned that M/s VMPL has been recommended for allocation of a captive coal block for its end use plant at Bihar. Accordingly the minutes Ex. PW 1/L (Colly) (D-11) subsequently prepared in MOC also stated so. After getting routed through the desk of PW-1 V.S. Rana, A-6 K.C.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 375 of 467 Samria and A-5 K.S. Kropha, the minutes reached the desk of A-4 H.C. Gupta. Thereafter vide note dated 14.07.2008 Ex. PW 1/M-2 (D-
11), A-4 H.C. Gupta forwarded the minutes Ex. PW 1/L (Colly) to Prime Minister as Minister of Coal through Minister of State for Coal. Subsequently the Prime Minister as Minister of Coal approved the recommendations of 36th Screening Committee qua various coal blocks including Moira-Madhujore coal block subject to the condition that allocation/option letters to those allocatee companies who have been earlier also allocated coal blocks, be issued only after reviewing their performance in the said earlier allocated coal blocks.
458. Accordingly it was found in MOC that one of the joint allocatee company of Moira-Madhujore coal block namely M/s Adhunik Corporation Limited (Adhunik Group) was earlier also allocated certain coal blocks and its performance qua them is not satisfactory. CA-I Section accordingly put up a note dated 18.08.2008 in this regard.
Thereafter a number of proceedings took place in MOC including a meeting held in the office chamber of Minister of State for coal to review the performance of such recommended companies who were earlier also allocated certain coal blocks.
(Discussion of the said proceedings is not required for the purposes of deciding the present issue and accordingly the same is not being referred to over here.).
A meeting also took place in the office chamber of A-5 CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 376 of 467 K.S. Kropha on 04.07.08 to discuss about the share to be allocated to such joint allocatee companies. The circumstances relating to said meeting shall be however discussed by me at a slightly later stage.
459. Finally on 27.05.2009 a joint allocation letter Ex. PW 1/M-5 was issued to all the six joint allocatee companies of Moira- Madhujore coal block including A-1 M/s VMPL. In the said letter also the location of the end use plant for which the company M/s VMPL was recommended for allocation of a captive coal block was mentioned as Bihar. The capacity of end use plant was however mentioned as 0.73 MTPA. Vide the said joint allocation letter, the six joint allocatee companies were called upon to exercise one of the three options as to how they intend to mine the coal block in question. Accordingly vide letter dated 23.06.2009 Ex. PW 1/M-6, the six joint allocatee companies opted for "option 1" stating that they intend to mine the coal block together after forming a joint venture company of all the six joint allocatee companies. However they sought time to submit the joint venture agreement in another period of 60 days. Subsequently on 24.08.2009 a reminder Ex. PW 1/M-7 was again sent to all the six joint allocatee companies by PW-1 V.S. Rana calling upon them to submit the joint venture agreement within seven days. Accordingly on 24.08.2009, the six joint allocatee companies vide letter Ex. PW 1/M-8 (Colly) submitted a joint venture agreement dated 25.08.2009 to MOC. A perusal of said joint venture agreement shows that the letter dated 27.05.2009 Ex. PW 1/M-5 offering joint allocation of the coal block to the six companies was made an CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 377 of 467 integral part of the joint venture agreement and copy thereof was also annexed as Annexure A. MOC accordingly accepted the said joint venture agreement and proceeded to act upon it. Thus it is clear from the said joint venture agreement entered into by the companies and subsequently accepted by MOC that M/s VMPL was recommended for allocation of a captive coal block for its end use plant at Bihar only and the same was also duly accepted to by the company M/s VMPL also.
460. Before proceeding further it will be worthwhile to mention that by the time the aforesaid joint offer letter/option letter dated 27.05.2009 or came to be issued, A-4 H.C. Gupta had already retired from Government Service. The file however on all these occasions did move through the desk of A-5 K.S. Kropha and A-6 K.C. Samria beside also getting approved from the successor of A-4 H.C. Gupta, namely Sh. C. Balakrishnan, the then Secretary Coal.
461. Subsequent to receipt of Joint Venture Agreement some further proceedings took place in MOC, details of which are not relevant over here and finally a joint allocation letter dated 06.10.2009 Ex. PW 1/M-9 was issued. In the said joint allocation letter dated 06.10.2009 Ex. PW 1/M-9 (Colly) it was mentioned that M/s VMPL has been recommended for their proposed end use plant at Begusarai Bihar and also for its existing plant at Purulia West Bengal. The end use plant capacity was again stated to be 0.73 MTPA.
462. Thus from a bare perusal of the aforesaid record and the CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 378 of 467 corresponding proceedings, it is however clear that M/s VMPL was recommended by 36th Screening Committee in its meeting held on 03.07.08 for its proposed integrated steel plant at Bihar only. It was that very recommendation which was processed in MOC and finally was approved by Prime Minister as Minister of Coal. Subsequently the allocation letter dated 27.05.2009 was also issued for the proposed end use plant of the company at Bihar only. The joint Venture Agreement entered into by the six joint allocatee companies including M/s VMPL also mentioned the location of the plant for which captive coal block was allotted as Bihar only. It was the same joint venture agreement which was accepted by MOC and was further processed. However for reasons best known to MOC officers including A-5 K.S. Kropha and A-6 K.C. Samria, the final allocation letter dated 06.10.2009 stated the location of end use plant of company M/s VMPL to be at Bihar and also at West Bengal. Thus addition of West Bengal plant in the final allocation letter was clearly beyond the mandate given by the Screening Committee or in other words was clearly beyond the recommendations of Screening Committee and as were subsequently approved by Prime Minister as Minister of Coal. From the aforesaid proceedings, it is crystal clear that the addition of Bengal plant was not at any point of time approved by the Prime Minister as Minister of Coal much less recommended by the Screening Committee. However what is interesting to note is that the accused persons have not claimed that addition of West Bengal plant in the final allocation letter was an inadvertent error but what has been argued is that its omission in the CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 379 of 467 initial option letter/offer letter dated 27.05.2009 was an inadvertent omission. It has been also argued that CA-I Section officials never brought this omission to their notice and they also believed that CA-I Section officials must have done their work properly while processing the file for issuance of final allocation letter.
463. The natural consequence of the aforesaid line of argument as has been put-forth on behalf of accused public servants is that the 36th Screening Committee in its meeting held on 03.07.08 had rather recommended company M/s VMPL for allocation of a captive coal block for its proposed integrated steel plant at Bihar and also for its existing plant at West Bengal. It also implies that the recommendation sheet Ex. PW 12/D so prepared at the time of Screening Committee meeting and which was allegedly carrying signatures of members of Screening Committee was thus not containing correct facts or in other words was wrongly prepared as it did not mention the existing plant of the company at Bengal at all. Similarly the processing of the said minutes and final approval of the same by Prime Minister as Minister of Coal was also wrong as what was approved was the allocation of captive coal block for proposed integrated steel plant at Begusarai, Bihar and not for the existing plant at West Bengal.
464. Thus, if in the light of aforesaid arguments of Ld. Counsels for accused public servants, the deposition of PW-12 N.R. Dash is considered then it appears that though discussion about West Bengal plant might have taken place in the Screening Committee meeting but the Screening Committee in its wisdom chose not to recommend CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 380 of 467 company M/s VMPL for its existing plant at West Bengal. Moreover, PW-12 N.R. Dash in his deposition also stated that Ministry of Steel had chosen to point out the existing capacity of the company West Bengal being 0.13 MTPA and the proposed capacity as 0.6 MTPA in its communication dated 06.12.2007, since they wanted to place all the facts before the Screening Committee clearly.
465. At this stage, I may also mention and as earlier also discussed while discussing the role of private parties, the TEFR which was referred to by Ministry of Steel while making its recommendations in fact did not in any manner pertain to the proposed integrated steel plant, the details of which were mentioned in the application Ex. P-96 (colly) (D-8). In fact during the investigation of the present case a number of TEFR and such like reports were collected and placed on record by the IO but I may once again state that except for collecting and placing them on record no investigation or analysis of the same was carried out so as to ascertain as to whether they are relevant to the facts in issue of the present case in any manner or not. One such TEFR is available in document D-90 and a bare perusal of the same shows that the same talks of 4 X 500 TPD kilns and 100 MW power plant at Bihar. It further shows that the company was not yet allocated any land much less 200 acres. Thus clearly the said TEFR which is part of document Ex. P-83 (Colly) (D-90) did not pertain to the application under consideration since in the application it was stated that the company has already been allocated 300 acres of land and the plant is CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 381 of 467 proposed to be of the capacity 1.1 MTPA.
466. Similarly one other TEFR available in document Ex. P-79 (Colly) (D-86) pertains to a proposed power plant of 2000 MW. Clearly the said TEFR did not pertain to the present application Ex. P- 96 (Colly) (D-8) as the nature of proposed end use project mentioned in the application was an integrated steel plant. Similarly another TEFR available in D-4 i.e. in the file of Government of Bihar Ex. P-3 (Colly) also pertains to a project of 4 X 500 TPD kilns and 100 MW power plant. It further states that 200 acres of land will be acquired. Thus the said TEFR also did not pertain to the proposed end use plant whose details were mentioned in the application Ex. P-96 (Colly) (D-8). Similarly the project report available in D-4 also pertained to a power plant of 2 X 250 MW and thus once again is not relevant to the matter under consideration over here.
467. Coming now to the presentations made by A-2 Vikash Patni, I may state that though one such presentation is available in Ex. P-28 (colly) (D-33) and has been referred to by the accused persons as being the presentation made before the Screening Committee but a perusal of the same shows that the same is also not relevant to the matter in issue over there. The said presentation talks of a proposed sponge iron plant of 65000 TPA under the expansion plan at Purulia West Bengal and another 6,50,000 TPA proposed plant of sponge iron at Begusarai, Bihar. Clearly the said presentation also did not relate to the application Ex. P-95 (Colly) (D-8) since the application or the feed back form submitted by the company did not talk of any such CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 382 of 467 plant at West Bengal. As regard the presentation available in Ex. P- 77 (Colly) (D-84), I may state that the said presentation talks of the proposed sponge iron plant at Jharkhand and thus once again the same does not co-relate with the details of proposed plant mentioned in the application Ex. P-96 (Colly) (D-8). One other TEFR available in document Ex. P-78 (Colly) (D-85) pertains to a sponge iron plant of 4 X 500 TPD kilns with 100 MW power plant. It also shows that the land was yet to be identified for the plant and allotted to the company and thus the said TEFR also can not co-relate with the details of proposed plant mentioned in application Ex. P-96 (Colly) (D-8) which stated that 300 Acres of land has already been allotted to the company.
468. Having so discussed the relevancy of various TEFRs collected by the IO during the course of investigation, I may however state that the aforesaid entire exercise could have been easily avoided if proper investigation and conclusion thereof would have been drawn at the investigation stage itself so as to find as to whether the any such report in any manner relates to the proposed end use plant whose details were mentioned in the application Ex. P-96 (Colly) (D-8), or not. It is on account of this kind of vague investigation carried out by certain investigating officers that the burden of the Court is increased manifold. The Court has to unnecessarily surf through various documents even though they have no relevance to the matter in issue. At the same time on account of voluminous nature of documents benefit is also taken at times by the accused persons by creating unnecessary and avoidable doubts or CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 383 of 467 complications in the trial of the case.
469. Be that as it may. Coming back to the deposition of PW-12 N.R. Dash, I may state that he too has been vague and wavering in his deposition when he stated that the Ministry of Steel did not consider the existing capacity of the company at Bengal and therefore the company was placed in category VI. At the same time he failed to offer any plausible explanation as to why while calculating the coal requirement of the company, the existing capacity of the company at its plant in West Bengal and that of the proposed plant at Bihar were taken into consideration. It is also beyond comprehension as to when the proposed capacity of the end use project was stated as 1.1 MTPA by the company in the application then under what circumstances the TEFR which only talk of a plant of the capacity 65000 MTPA was considered and it was not observed that no project report pertaining to the plant whose details have been mentioned in the application has been annexed with the application or that the TEFR available with them did not pertain to the end use plant whose details have been mentioned in the application by the company. As earlier also observed the working of various Ministries including that of Ministry of Steel in the coal block allocation process has not been completely above board. The reasons today are difficult to ascertain and especially when it is found that there has been no intention on the part of the investigating agency to carry out a proper investigation of the matter. However on account of ample documentary evidence available before this Court, I do not find any reason to discard away CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 384 of 467 the prosecution case simply on the basis of vague deposition of some of the prosecution witnesses. The Court can not permit that on account of such nature of defective/deficient investigation carried out by the investigating agency or on account of vague and self contradictory deposition of certain prosecution witnesses, the entire criminal justice administration system is put to ransom. In such type of cases, the duty of the Court becomes more onerous so as to suffle through the voluminous documentary evidence available on record in order to ascertain as to whether the allegations against the accused persons stands proved beyond shadows of all reasonable doubts or not.
470. Coming back to the issue of location of end use plant of company M/s VMPL for which the captive coal block in question was allocated, I may state that even the company M/s VMPL as earlier also mentioned and discussed at length in its application Ex. P-96 (Colly) (D-8) had stated the location of its proposed end use plant for which allocation of captive coal block was sought for at Begusarai Bihar only. The application was completely silent as regard the existing plant of the company at West Bengal. Though the application did mention the existing capacity of the company being 0.13 MTPA but while mentioning the details of the proposed end use plant, the location was only mentioned as Begusarai, Bihar. Thus we have a case where the applicant company itself did not apply for allocation of a captive coal block for its plant at Purulia West Bengal but MOC officers for reasons best known to them chose to allot a captive coal CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 385 of 467 block to the company for its proposed end use plant at Purulia West Bengal.
471. It has been however argued by Ld. Counsel for accused public servants that the application of the company M/s VMPL should be read as a whole i.e. along with the documents annexed with it. It was thus submitted that PW 12 N.R. Dash has admitted that in the TEFR the company had mentioned about the existing plant at Purulia, West Bengal. In this regard it would be pertinent to mention that in the earlier part of the present judgment, I have already discussed and concluded that no such TEFR or the project report was annexed by the company with its application. I have also discussed that the TEFR which was allegedly available with Ministry of Steel also did not pertain to the proposed end use project whose details were mentioned in the application Ex. P-96 (colly) (D-8).
472. There is however one other aspect of the matter. It is the admitted case of the MOC officers that in the Screening Committee meeting held on 03.07.2008 the agenda note prepared in MOC comprised of only the application form of various companies and not the documents annexed with the same. Thus there was no occasion for the Screening Committee to consider any of the documents which were annexed with its application by the company M/s VMPL. It is also not the case of anyone that Ministry of Steel had carried their set of application of various companies including that of M/s VMPL much less the documents available with them to the Screening Committee meeting.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 386 of 467
473. Ld. Counsels for the accused public servants however also submitted that CA-1 Section officials were present in the Screening Committee meeting with the complete applications of all the applicant companies so that the same may be made available to Screening Committee, if asked for.
474. In this regard it would be suffice to state that it is not the case of any of the accused MOC officers that any such documents of the applicant companies much less that of M/s VMPL were referred to in the Screening Committee meeting. Even otherwise, if the said documents of M/s VMPL would have been referred to than also as earlier discussed neither any such TEFR nor any project report was available alongwith one set of the application of M/s VMPL as was available with MOC. In fact none of the documents available with the application of M/s VMPL anywhere mentions about the existing plant of the company at Purulia, West Bengal.
475. The aforesaid circumstances also throws light on yet one other aspect. Even if the agenda note which comprised of the application of company M/s VMPL was seen in the Screening Committee meeting than a bare perusal of the same would have highlighted to the accused MOC officers that no Project Report as was required to be filed along with the application has been filed. I have already discussed that in the application itself company M/s VMPL had stated the word "NO" as against the column 21 wherein information about preparation of DPR (Detailed Project Report) was to be mentioned. I have also discussed that even in the Form for CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 387 of 467 Feed Back it was stated that the Project Report is under appraisal. Thus if during the Screening Committee meeting all such information furnished by the company in its application form or feed back form was considered then the MOC officers would have come to know that no such Project Report has been filed by the company. This fact ought to have raised the most important and pertinent question in their mind as to why the incomplete application of M/s VMPL was not rejected at the threshold itself. It would have taken them back to the stage as to whether applications were in fact checked for their completeness and eligibility by CA-1 section or not. Thus this fact again goes to reinforce the conclusion that senior officers of MOC were well aware that no checking of applications has been undertaken in MOC or has not been properly undertaken. The only course thus open to them was to atleast reject the application in the Screening Committee meeting itself being not complete. Since the issue of existing and proposed capacity of the end use plant of M/s VMPL was allegedly under discussion and the main application form was silent as regard the existing plant at Purulia, West Bengal so if the claim of PW 12 N.R. Dash and consequently that of accused public servants is considered to be true that discussion did take place about both the existing plant at West Bengal and the proposed plant at Begusarai, Bihar than it was imperative that the Project Report or other annexed documents must have been referred to.
476. However, in view of my aforesaid discussion it is clear that had any such discussion taken place than attention of accused MOC CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 388 of 467 officers was bound to be drawn to the factum of non-availablility of any Project Report. The same would have clearly entailed rejection of the application of M/s VMPL and not its selection.
477. These circumstances thus throw light on the circumstances as to how the important nationalized natural resources of the country were handled by accused MOC officers.
478. It is in the light of aforesaid circumstances an important question arises that if there was some collusion between the public servants and the private parties involved then what stopped A-1 M/s VMPL in seeking allocation of the captive coal block for its West Bengal plant also and on the other hand accused public servants could have easily mentioned the location of Bengal plant also in the minutes of Screening Committee meeting itself.
The answer to the aforesaid question is very simple.
479. As earlier also mentioned company M/s VMPL had been seeking allocation of one or the other captive coal blocks from 34th Screening Committee as well as from 35th Screening Committee also. Undoubtedly the company had an existing sponge iron plant at Purulia West Bengal for which it was already having coal linkage. Since coal is an important raw material for any sponge iron plant and the cost of coal if purchased from market or available through linkage from CIL or any of its subsidiaries is certainly much higher than the cost of coal which a company can obtain from mining the coal on its own. Accordingly every company engaged in manufacturing of CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 389 of 467 sponge iron plant is desirous of obtaining a captive coal block if the production cost is to be brought down. Thus having been involved in the earlier coal block allocation process company A-1 M/s VMPL was aware that Government of West Bengal was not in favour of recommending it for allocation of a coal block situated in the State of West Bengal. The company also knew that the recommendation of coal bearing state and that of the state where the end use plant for which allocation of captive coal block is sought for is extremely important for procuring recommendation from Screening Committee in its favour. Thus if the existing plant at West Bengal would have been mentioned in the application then the recommendation of state of West Bengal would have been relevant not only from the point of view of being the coal bearing state but also as that of a state where the end use plant is located. On the other hand on account of smaller production capacity of the company at Purulia West Bengal plant it would not have met the criteria laid down by Ministry of Steel even. One could argue that if false claims were only to be made then the same could have been made qua the expansion of the existing plant at West Bengal also but I may state that in those circumstances the falsity of the claim, if any, made would have come to light of Screening Committee from the views of representatives of State of West Bengal in the Screening Committee meeting itself and also from the comments received from the State Government. It was for this reason only that representative of State of Bihar was not invited in any of the five Screening Committee meeting as his presence would have brought to the notice of Screening Committee that 300 acres of CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 390 of 467 land earlier allotted to company M/s VMPL has since been cancelled. It was for this reason only no efforts were made to obtain comments from State of Bihar before proceeding to recommend M/s VMPL for allocation of Moira-Madhujore coal block.
480. It is in this background, if the aforesaid sequence of events is seen from the point of view of company M/s VMPL then it is found that on account of cancellation of land earlier allotted to it the company knew that it was not possible for it to establish any project much less steel project or power plant in state of Bihar and the company did not intent to loose hold of the captive coal block procured by it from 36th Screening Committee for its proposed plant at Bihar. Accordingly the company ensured that in the final allocation letter the coal block is shown to have been allocated for its both Bihar Plant and for West Bengal plant.
481. As regard submissions of Ld. Counsel for accused public servants that the Screening Committee had in fact recommended Moira-Madhujore coal block in favour of A-1 M/s VMPL for its plant at Purulia West Bengal and also at Begusarai Bihar it would be worthwhile to refer to a letter dated 04.07.2008 Ex. PW 18/C written by DW-5 Bhaskar Khulbe, Advisor Industry, Government of Bihar to A-5 K.S. Kropha. The said letter was written on the very next day of the Screening Committee meeting held on 03.07.08 and it mentioned the details of the companies in West Bengal which were recommended for allocation by the Screening Committee qua coal blocks located in West Bengal. A request was thus made for CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 391 of 467 indicating the shares allotted to each of the said companies so that necessary information may be transmitted to Department of Commerce and Industries, Government of West Bengal. For a ready reference the said letter read as under:
Bhaskar Khulbe, IAS West Bengal Industrial Development Corporation Ltd Advisor (Industry) (A Government of West Bengal Undertaking) GOVERNMENT OF WEST BENGAL C-373, (Ground Floor), Defence Colony, New Delhi-110024 Phone : 011-24330751, 24332518 (D) Fax : 011-24331752 e-mail : wbidc@hathway.com D.O. No. A(I)/III/9/WBIDC-06 4th July, 2008 Dear Shri Kropha, Kindly refer to the discussion in the Screening Committee meeting yesterday. As per the decision of the Committee, details of the Companies in West Bengal recommended for allocation by the Committee, on their end-use capacity as reflected in their application to Ministry of Coal and in the MOA subsequently signed with Government of West Bengal are provided in the table below:
Name of Company End Use Capacity (MTPA) as shown in Application to MOA signed with GoWB Ministry of Coal 1 Ramsarup Lohh Udyog 1 -
2 Adhunik Corpn. 1.1 1.1 3 Rashmi Cement & 1 2 Rashmi Metaliks 1 1.5 4 Jai Balaji Industries Ltd 5 5 5 Bhushan Steel & Strip 2 2 6 Howrah Gases Ltd 0.324 -
I shall be grateful if the share allocated to each of these Companies could be indicated for onward transmission to Commerce & Industry Department, Government of West Bengal.
With warm regards, Yours sincerely Sd/-
(4/7/08) (Bhaskar Khulbe) CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 392 of 467 Shri K.S. Kropha, IAS Joint Secretary to Government of India Ministry of Coal, Shastri Bhavan, New Delhi-110001"
482. It has been rightly argued by Ld. Sr. P.P. Sh. Sanjay Kumar that had M/s VMPL been recommended for allocation of Moira- Madhujore coal block for its proposed plant at West Bengal then in the said communication dated 04.07.08 Ex. PW 18/C, DW-5 Bhaskar Khulbe would have mentioned the name of M/s VMPL also while asking for the share to be allotted to it. Certainly the aforesaid submissions of Ld. Sr. P.P. has force in it. In fact if the answer to question No. 282 put to all the three accused MOC officers in their statements u/s 313 Cr.PC is referred to then the aforesaid submissions of Ld. Sr. P.P. Sh. Sanjay Kumar stands duly corroborated. The said question and the answers given by the three accused MOC officers read as under:
"Q. 282 It is further in evidence against you that vide letter dated 04.07.2008 bearing signature of Sh. Bhaskar Khulbe at point B Sh. Kropha Joint Secretary Coal was requested in furtherance of the Screening Committee discussion held in the meeting on 03.07.2008 to indicate the share of coal block allocated to each of the companies so that the necessary information may be transmitted to Department of Commerce and Industries Govt. of West Bengal. The said letter mentions names of six companies but it does not refer to M/s Vikash Metal and Power Ltd. (M/s VMPL). The letter is Ex. PW 18/C. What have you to say?
Answer (given by A-4 H.C. Gupta): It is a matter of record.
However, it is clarified that this letter dated 04.07.2008 contains the names of only those companies whose end use projects are located/ situated in the State of West Bengal and which CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 393 of 467 were recommended qua the two coal blocks, namely, Andal and Moira Madhujore, located in West Bengal. Hence, name of M/s VMPL was not included in the list as it's proposed new end use project was to be located in Bihar. There were a few other recommended companies also, whose projects were not located in West Bengal and hence, their names were also not included in the letter.
Answer (given by A-5 K.S. Kropha): It is a matter of record. However, it is clarified that this letter dated 04.07.2008 contains the names of only those companies whose end use projects are located/ situated in the State of West Bengal and which were recommended qua the two coal blocks, namely, Andal and Moira Madhujore, located in West Bengal. Hence, name of M/s VMPL was not included in the list as it's proposed new end use project was to be located in Bihar. There were a few other recommended companies also, whose projects were not located in West Bengal and hence, their names were also not included in the letter.
Answer (given by A-6 K.C. Samria): It is correct. Further, the letter was addressed to Sh. K S Kropha, Joint Secretary of Coal in reference to the discussion in the Screening Committee on the previous day. As per record, Sh. Bhaskar Khulbe had forwarded details of the companies in West Bangal recommended for allocation by the Screening Committee. The said letter was marked to my office by JS, Coal on 04.07.2008 and on the same day, I had marked the letter to US, CA-I for action at their end."
483. Thus from the aforesaid answers given by accused MOC officers themselves in their statement u/s 313 Cr. PC, it is clear that letter dated 04.07.08 Ex. PW 18/C of DW-5 Bhaskar Khulbe contained the names of only those companies whose end use projects were located/situated in the state of West Bengal and which companies were recommended qua the two coal blocks namely Andal and Moira-Madhujore coal block located in State of West Bengal. It has been further stated by the accused persons that name of M/s VMPL was not included in the list as its proposed end use CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 394 of 467 project was to be located in Bihar.
484. Thus from the overall facts and circumstances of the case coupled with the documentary record of 36 th Screening Committee and approval of its recommendations by Prime Minister as Minister of Coal beside the communication of DW-5 Bhaskar Khulbe dated 04.07.08 Ex. PW 18/C and the subsequent answers given by the accused persons in their statement u/s 313 Cr.PC it is crystal clear that the 36th Screening Committee in its meeting held on 03.07.08 had recommended allocation of Moira-Madhujore coal block to M/s VMPL for its proposed end use project at Bihar only. The subsequent issuance of final allocation letter dated 06.10.2009 to the company mentioning the names of its existing plant at Purulia West Bengal also in addition to the proposed plant at Bihar was thus clearly an act of extending undue benefit to the company M/s VMPL and that too in clear contravention of all rules and regulations. The aforesaid circumstances in fact presents a glaring example of A-5 K.S. Kropha and A-6 K.C. Samria acting in cahoot with the private parties involved by abusing their official position and extending them undue benefit and that too without any public interest.
485. For all the aforesaid reasons, the argument put-forth on behalf of accused public servants that the said discrepancies did not come to their notice at the time of issuance of allocation letter does not inspire any confidence at all and is simply a lame excuse now to cover up their malafide acts.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 395 of 467 (H) Checking of applications post-approval of recommendations of Screening Committee by Prime Minister as Minster of Coal.
486. It was pointed out by Ld. Counsels for the accused persons that in the order dated 05.08.2015 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 Division Clerks in Government of India where number of applicants is usually too large, the scrutiny or 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 recommendations 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 CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 396 of 467 liability in this regard can be now fixed upon the accused persons.
487. Though on the face of it the submissions made by Ld. Counsels for the accused MOC officers appears to be attractive but if the overall facts and circumstances of the case are seen coupled with the manner in which the guidelines were modified by the accused MOC officers by introducing new criteria/steps or were not followed at all, then it will be found that the analogy sought to be drawn by this Court at the initial 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.
488. 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 even by the Screening Committee. It was for this reason only that it was provided in the guidelines 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 officials of MOC 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 CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 397 of 467 in nature. Moreover, 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 before they were placed before the Screening Committee. 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 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 and thus despite knowing that the guidelines have not been followed in as much as the applications have not been checked for their eligibility and completeness but they still did not initiate any action at that stage to ensure compliance with the guidelines titled "Processing of Application". It is in these circumstances becomes important to note that in the guidelines itself it was stated that after the Screening Committee would make its recommendations then on the basis of recommendations 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 recommendations 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 thus not only apparent from CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 398 of 467 the record but it is also 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 recommendations 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 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 qua various acts 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".
489. Before proceeding further, I may state as a mark of caution that I am not at all questioning the justification for such a decision of MOC officers 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 CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 399 of 467 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-1/N-3 (colly) (D-18) of meeting held on 11.05.2007 itself shows such a concern on the part of MOC officers. The MOC 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.
490. 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 i.e. that of thirty eight (38) 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 CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 400 of 467 companies were complete or that they were eligible for allocation of a captive coal block.
Thus in my considered opinion the checking of applications even at the stage of post-approval of recommendations 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.
491. 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 nationalized 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 CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 401 of 467 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 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. These all steps would have simply provided the means to achieve the final goal as was sought to be achieved by the guidelines.
492. 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 Moira-Madhujore coal block in favour of A-1 M/s VMPL 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.
493. In the light of aforesaid discussion, it will be now appropriate to discuss as to which of the offences for which charges have been framed against the accused public servants stands proved against them.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 402 of 467 (I) Offence of criminal misconduct i.e. u/s 13 (1) (d) P.C. Act, 1988.
494. Before proceeding to analyse the charge for the offence u/s 13 (1) (d) P.C. Act, 1988 as framed against the three aforesaid accused public servants, it will be pertinent to first have a glance over the said section.
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)......."
495. 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 is available on record which may show that any of the three public servants obtained allocation of Moira-Madhujore coal block in favour of A-1 M/s VMPL by any corrupt CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 403 of 467 or illegal means as has been contemplated in section 13 (1)(d) (i) P.C. Act, 1988. Accordingly offence u/s 13 (1) (d) (i) P.C. Act, 1988 is not made out against them.
496. 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 detailed discussion, it is clear that the three accused MOC officers i.e. A-4 H.C. Gupta, Secretary, Coal and Chairman Screening Committee, A-5 K.S. Kropha, Joint Secretary, Coal and Member Convener, Screening Committee and A-6 K.C. Samria, Deputy Secretary/Director, CA-I Ministry of Coal abused their position as such public servants in order to obtain for A-1 M/s VMPL allocation of Moira-Madhujore coal block. The circumstances of the case as have been extensively discussed above clearly shows the existence of malafide intention on the part of all the three public servants in their various acts.
It has been clearly established that in the Screening Committee meeting held on 03.07.08, A-4 H.C. Gupta and A-5 K.S. Kropha ensured allocation of Moira-Madhujore coal block in favour of A-1 M/s VMPL by abusing their position as such public servants. It has been clearly established that despite they being responsible for ensuring compliance of the guidelines by the Screening Committee and especially as regard ascertaining the interse priority of the competing applicant companies they not only misled the other CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 404 of 467 Screening Committee members to believe that the decision being taken is as per the merits of the applicant companies and in accordance with the recommendations made by the Administrative Ministry i.e. Ministry of Steel but even subsequently while preparing the minutes in the MOC all the reasons for arriving at such a decision were with-held. It has also been discussed that the minutes before they were approved by A-4 H.C. Gupta and were sent to Prime Minister as Minister of Coal for his approval were never sent to Screening Committee members for their confirmation. It has also been established that A-4 H.C. Gupta in the meeting held in PMO with Principal Secretary to Prime Minister dishonestly misrepresented that all the decisions have been taken on merits of the applicants and on the basis of recommendations of the State Governments where the coal blocks are situated. It has also been established that A-5 K.S. Kropha despite being Member Convener also failed to take necessary steps in ensuring that all the entities whose views were important for arriving at its decision by the Screening Committee are duly invited to the Screening Committee meetings or in the alternative at least their views/comments are available to the Screening Committee.
497. As regard A-6 K.C. Samria it has been well established that he being the holder of office to whom various applications were addressed i.e. of the office of Director, CA-I, he did not ensure compliance of the guidelines by CA-I Section. It has also been discussed and established that all the three accused MOC officers CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 405 of 467 were well aware at least on 11.05.2007, if not before, that the applications have not been checked for their eligibility and completeness in MOC. The records of the case also shows that A-6 K.C. Samria was also in receipt of certain communications from Department of Mines and Geology, Government of Bihar a few months back wherein it was stated that M/s VMPL is planning to establish an integrated power plant at Begusarai Bihar but still he did not bring it to the notice of Screening Committee or to the senior officers of MOC when the application of M/s VMPL for establishing an integrated steel plant on the same land at Begusarai Bihar was being considered. He also failed to ensure that notice is issued to State Government of Bihar for attending 36 th Screening Committee meetings or at least their comments are obtained so that the same are available to the Screening Committee for its consideration. This fact assumes all the more importance as the comments of Government of Bihar would have clearly mentioned that neither M/s VMPL is any longer intending to establish any such integrated steel plant in the state nor any land stands allocated in its favour by BIADA or that the allocation of 300 acres of land as was earlier made in favour of the company has since been cancelled. It has also been discussed and established that both A-5 K.S. Kropha and A-6 K.C. Samria despite knowing fully well that 36 th Screening Committee has recommended allocation of Moira-Madhujore coal block in favour of A-1 M/s VMPL for its end use project at Bihar only but got the allocation letter issued in favour of A-1 M/s VMPL not only for its proposed plant at Bihar but also for its existing plant at Purulia West CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 406 of 467 Bengal.
I thus do not wish to go into the detailed discussion of the various facts and circumstances of the case once again over here as the same have been dealt with extensively in the earlier part of the judgment but from the overall facts and circumstances of the case, it is clear that the three accused public servants i.e. A-4 H.C. Gupta, A- 5 K.S. Kropha and A-6 K.C. Samria clearly abused their position as public servants in order to obtain allocation of Moira-Madhujore coal block in favour of A-1 M/s VMPL for its proposed plant at Bihar and also for its existing plant at Purulia West Bengal. All the three accused public servants i.e. A-4 H.C. Gupta, A-5 K.S. Kropha and A-6 K.C. Samria are thus clearly guilty of committing the offence of criminal misconduct i.e. u/s 13 (1) (d) (ii) punishable u/s 13 (2) P.C. Act, 1988 and accordingly stands convicted thereunder.
498. As regard offence u/s 13 (1) (d) (iii) P.C. Act 1988 not much discussion is required as it is clear that the three accused public servants acted with complete disregard to public interest in obtaining allocation of Moira-Madhujore coal block in favour of A-1 M/s VMPL 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 public servants 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 CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 407 of 467 beyond shadows of all reasonable doubts.
499. Moreover, 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 aforesaid circumstances it clearly stands established that the accused public servants with malafide intention abused their position as such public servants with a view to obtain allocation of Moira-Madhujore coal block in favour of A-1 M/s VMPL and that too without any public interest. 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 public servants beside offence u/s 13 (1) (d) (ii) P.C. Act, 1988 as already mentioned above. The three accused public servants i.e. A-4 H.C. Gupta, A-5 K.S. Kropha and A-6 K.C. Samria thus stands convicted for the offences u/s 13 (1) (d) (ii)/13 (1) (d) (iii) r/w Section 13 (1) (2) P.C. Act, 1988.
(J) Criminal Conspiracy u/s 120-B IPC
500. As regard the offence of criminal conspiracy not much discussion is required as the overall facts and circumstances of the case as discussed above clearly shows that the three accused public servants willingly entered the bandwagon of criminal conspiracy as was hatched by the private parties involved i.e. A-1 M/s VMPL, A-2 Vikash Patni and A-3 Anand Mallick. The observations of Hon'ble Supreme Court as were made in the case State through Superintendent of Police, CBI/SIT Vs. Nalini (Supra) as have been CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 408 of 467 earlier quoted in the earlier part of the judgment clearly supports the conclusion regarding existence of such a criminal conspiracy initially hatched by the private parties involved and in which the public servants subsequently joined. As earlier also observed direct evidence of meeting of minds or of forming an agreement to enter any such criminal conspiracy may not be available but the same can always be inferred from the overall facts and circumstances of the case. Thus, the various acts of accused public servants clearly show that they left no stone unturned in ensuring allocation of Moira- Madhujore coal block in favour of A-1 M/s VMPL. The acts of the three accused public servants clearly show that they were acting with a pre-determined mind so as to ensure that not only allocation of Moira-Madhujore coal block is obtained in favour of A-1 M/s VMPL for its proposed plant at Bihar but also for its existing plant at West Bengal. In fact as already discussed at length, the company M/s VMPL in fact never intended to establish any plant in Bihar and their primary intention was to obtain allocation of a captive coal block for their existing plant at West Bengal only. The accused public servants thus ensured that not only Moira-Madhujore coal block is allotted in favour of company M/s VMPL by 36 th Screening Committee and is finally approved by Prime Minister as Minister of coal but even though Screening Committee having recommended the allocation of coal block to the company for its proposed project at Bihar only, still the final allocation letter mentioned that the same has been allotted for the existing plant of M/s VMPL at Purulia, West Bengal also. Moreover this act was undertaken by them despite knowing fully well CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 409 of 467 that State Government of West Bengal was not in favour of allocation of any coal block situated in their state, to M/s VMPL and also that Ministry of Steel had placed the company in category VI while placing other competing applicant companies in higher categories. The offence of criminal conspiracy i.e. u/s 120-B IPC thus stands well proved against all the three accused public servants i.e. A-4 H.C. Gupta, A-5 K.S. Kropha and A-6 K.C. Samria and they are accordingly convicted thereunder.
All the three accused public servants accordingly stands also guilty of the offence u/s 120-B r/w Section 13 (1) (d)
(ii) and 13 (1) (d) (iii) P.C. Act, 1988 and are accordingly convicted thereunder.
(K) Section 409 IPC and Section 13 (1) (c) P.C. Act, 1988 as against A-4 H.C. Gupta
501. 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 exclusive 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 CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 410 of 467 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. As already discussed above at length they exploited this situation by abusing their offices so as to ensure recommendation of 36 th Screening Committee in favour of M/s VMPL of Moira-Madhujore coal block. Subsequently they also with-held all material information regarding non-compliance with the guidelines from Prime Minister as Minister of Coal while seeking his approval of the recommendations of 36 th Screening Committee.
However the prosecution has been unable to prove that A-4 H.C. Gupta was exercising any exclusive dominion/control over the said coal blocks or that the said nationalised natural resources of the 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 various acts of omission and commission they did assist A-1 M/s VMPL, A-2 Vikash Patni and A-3 Anand Mallick in procuring allocation of Moira- Madhujore coal block from MOC, Government of India on the basis of false claims/misrepresentations and while also 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) CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 411 of 467 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 into. 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.
A-4 H.C. Gupta is thus acquitted of the offence u/s 409 IPC and of the offence u/s 13 (1) (c) P.C. Act, 1988.
502. I now intend to discuss certain other miscellaneous issues as were raised by Ld. Counsels for the accused persons. The said issues were not earlier dealt with as in my considered opinion the discussion qua said issues or consequent decision as shall be followed hereinafter shall have no affect on the finding qua various offences as against different accused persons as has been recorded by me herein above.
(L) Validity of sanction U/s 19 PC Act, 1988 as accorded against A-5 K.S. Kropha and A-6 K.C. Samria by the Competent Sanctioning Authority.
503. It has been submitted by Ld. Counsel for A-5 K.S. Kropha and A-6 K.C. Samria that as both the accused persons were serving public servants at the time when this Court took cognizance of various offences under P.C. Act, 1988 so sanction u/s 19 P.C. Act was a pre requisite condition for taking cognizance of the offences under CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 412 of 467 P.C. Act. It has been further submitted that though CBI had admittedly filed a closure report initially against all the accused persons but this Court vide order dated 15.10.2014 disagreed with the said conclusion and referred back the matter for further investigation. However, after carrying out further investigation also, CBI though charge-sheeted the private parties but again chose to file a closure report as against the accused public servants stating that no offence have been found to have been committed by them. This Court however vide Order dated 05.08.2015 referred back the case to CBI with the directions that matter be placed before the competent sanctioning authority for considering according of sanction against the accused public servants i.e. A-5 K.S. Kropha and A-6 K.C. Samria. Subsequent thereto when the matter was placed before the competent sanctioning authority by the CBI along with the copy of Order passed by this Court then sanction u/s 19 P.C. Act for prosecution of the two accused persons for the offences P.C. Act, 1988 was stated to have been accorded by the competent sanctioning authority. Accordingly, this Court proceeded ahead to take cognizance against the accused public servants vide order dated 05.02.2016 and ordered their summoning. It has been submitted that subsequently when during the course of trial PW 17 Raj Kishan Vats, Under Secretary, DoPT was examined and the relevant file from DoPT was summoned for the purposes of cross-examination of the said witness then it was found that the sanction as has been accorded against the two public servants by the competent sanctioning authority has been without any application of mind and without consideration of complete record.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 413 of 467 It has been submitted that from the proceedings conducted in the said file, it is evident that the Prime Minister proceeded ahead to accord sanction on the basis of report of CVC and that of Minister of State for Coal and there was no independent application of mind by the sanctioning authority. It was also submitted that from the records, it is clear that complete material was not placed before the sanctioning authority before it considered the issue of according of sanction u/s 19 P.C. Act to prosecute the two public servants. It was further submitted that from the records, it is also evident that though initial sanction order dated 05.01.2016 qua both the public servants was authenticated by PW 17 Raj Kishan Vats under his own signatures but subsequently on the pointing out of DIG, CBI, Sh. Ravi Kant that there are certain errors in the sanction orders, fresh sanction orders dated 27.01.2016 were issued against both the accused persons by PW 17 Raj Kishan Vats. It was however submitted that on this occasion the file never traveled to the desk of sanctioning authority and thus the new sanction orders dated 27.01.2016 on the basis of which this Court took cognizance of various offences under P.C. Act against the two public servants were never issued after obtaining approval from the competent sanctioning authority. Such a sanction was thus stated to be per se defective and thereby striking at the very roots of the case. It was thus submitted that on account of the aforesaid basic defects in the case of prosecution, the cognizance taken by this Court against the two accused public servants was clearly bad in law and the accused persons ought to be acquitted of all the charges.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 414 of 467
504. On the other hand, Ld. Senior PP strongly opposed the submissions made by accused public servants. It was submitted that the sanction orders were authenticated by PW 17 Raj Kishan Vats pursuant to Rules issued in this regard by Ministry of Home Affairs, vide Notification dated 03.11.1998 and as has been amended from time to time. It was submitted that the said Rules titled "Authentication (Orders and other Instructions) Rules, 1958 were issued by the President of India in the exercise of powers under Article 77(2) of the Constitution of India. As regard the issuance of fresh sanction orders dated 27.01.2016, it was submitted that there was no requirement of putting up the file again before the sanctioning authority since what was done after issuance of initial sanction orders 05.01.2016 was correction of certain typographical errors/ inadvertent factual errors only. It was also submitted that from the records produced by PW 17 Raj Kishan Vats and from his deposition, it was clear that all the relevant material was very much available before the competent sanctioning authority and accordingly the sanction granted u/s 19 P.C. Act, 1988 for prosecution of the two public servants was a valid sanction.
My Discussion
505. At the outset, I may state that in so far as the issuance of formal sanction orders by PW 17 Raj Kishan Vats, Under Secretary, DoPT under his own signatures pursuant to sanction for prosecution having been accorded by the competent sanctioning authority is concerned, the said act stands very well covered under the Rules CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 415 of 467 titled "Authentication (Orders and other Instructions) Rules, 1958 and as have been amended from time to time. No fault in the said act can thus be found.
506. Coming to the second limb of the arguments that after the initial sanction orders dated 05.01.2016 was issued then on the pointing out of certain factual errors by DIG, CBI, Sh. Ravi Kant, fresh sanction orders after making necessary corrections were issued by PW 17 Raj Kishan Vats, I may state that again no fault can be found in the sanction orders dated 27.01.2016. A bare perusal of the record i.e. file of DoPT Ex. AD-1 and AD-2 shows that all the relevant material was available before the competent sanctioning authority. The record also shows that the competent sanctioning authority had duly applied his mind before considering the issue of according sanction to prosecute the two public servants. Certainly, DoPT has laid down its own procedure as to how any request from an investigating agency or from any other person for considering according of sanction to prosecute any public servant(s) shall be entertained. The record shows that initially certain correspondence was exchanged between CBI and DoPT on account of non- compliance with some such procedural conditions. However, when all such requisite documents and that too in the given format were made available to DoPT including the opinion of the concerned Administrative Ministry i.e. Ministry of Coal in the present case then view/opinion of CVC was also obtained. It was thereafter that the material was processed in DoPT and after being routed through the CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 416 of 467 desk of Minister of State was placed before Prime Minister, who was the competent sanctioning authority to consider according of sanction to prosecute the two accused public servants. However, in the peculiar facts and circumstances of the present case when CBI had initially filed the closure report against all the accused persons, this Court had thereafter while disagreeing with the said conclusion of CBI referred back the matter for further investigation to CBI by a passing detailed order. However the CBI again chose to file a closure report as against the public servants though on this occasion it chose to charge-sheet the private parties involved. However, this Court as earlier mentioned again chose to disagree with the said conclusion drawn by CBI as regard the public servants and after finding that prima facie case was made out for taking cognizance of various offences against the public servants also, referred back the matter again to CBI directing that matter be placed before the competent sanctioning authority for considering according of sanction to prosecute the two public servants. Thus in these circumstances no fault can be found if the matter before the competent sanctioning authority was placed for consideration in terms of the detailed orders passed by this Court. Infact here is a case where competent sanctioning authority had before it two contradictory views on the same set of facts i.e. one drawn by the investigating agency which chose to close the case against the accused public servants and the other view expressed by this Court vide its detailed orders wherein it was found that on the same set of facts and evidence collected by CBI, prima facie offence was made out. It was in these circumstances CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 417 of 467 that competent sanctioning authority also formed the opinion that prima facie the various acts of omission and commission as were alleged against the public servants warranted their prosecution under the P.C. Act, 1988. The competent sanctioning authority accordingly gave its approval according sanction u/s 19 P.C. Act, 1988 to prosecute the two accused public servants taking into consideration the entire facts and circumstances. It thus cannot be stated by any stretch of imagination and more so when no specific documents have been pointed out having been not made available before the sanctioning authority or non-availability of which would have impacted the decision making process of the sanctioning authority, that all the relevant material was not available before the sanctioning authority before it proceeded to consider the issue of according sanction u/s 19 P.C. Act, 1988 to prosecute the two public servants. It also thus cannot be stated that the sanctioning authority accorded sanction u/s 19 P.C. Act, 1988 to prosecute the two public servants without any application of mind.
507. Coming now to the last limb of the arguments regarding corrections made in the initial sanction orders dated 05.01.2016, it will be worthwhile to point out that though certain corrections were indeed made by PW 17 Raj Kishan Vats in the initial sanction Orders dated 05.01.2016 but he stated in his deposition that the said corrections were done after the file in this regard was approved by the then Joint Secretary, DoPT. In fact in his cross-examination, the attention of the witness was specifically drawn to such corrections made in the initial CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 418 of 467 sanction orders dated 05.01.2016 and the witness specifically stated that same were inadvertent errors and when the same came to his notice then the said errors were rectified before issuance of fresh sanction orders dated 27.01.2016. At this stage, I may mention that one such correction made in the sanction orders dated 05.01.2016 was that in the body of both sanction orders dated 05.01.2016 it was stated that the requirements of section 13 (1) (d) (iii) is satisfied in the case of the public servant concerned to constitute an offence of criminal misconduct under the Prevention of Corruption Act, 1988. However in the two sanction orders dated 27.01.2016 it was stated that the requirement of section 13 (1) (d) is satisfied in the case of public servant concerned to constitute an offence of criminal misconduct under the Prevention of Corruption Act, 1988. In this regard I may, however, mention that if the final sanction as was accorded by the competent sanctioning authority is seen then it is found that in both the sanction orders dated 05.01.2016, the sanction granted was for the offences u/s 13(1)(d) r/w 13(2) P.C. Act, 1988 and for any offences punishable under other provisions of law in respect of said offences by the Court of Competent Jurisdiction. Similar words were however reiterated in the sanction orders dated 27.01.2016. Thus there is no change in the corrected sanction orders dated 27.01.2016 issued by PW 17 Raj Kishan Vats as compared to the earlier sanction orders dated 05.01.2016 in so far as the actual substance and intent of sanction accorded by the competent sanctioning authority is concerned. There were however certain other factual errors also which were rectified in the sanction orders dated CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 419 of 467 27.01.2016 as compared to earlier sanction orders dated 05.01.2016 in as much as in the orders dated 05.01.2016 it was stated that cognizance has already been taken by the Court. This fact was no longer mentioned in the sanction orders dated 27.01.2016. Certainly the omission of said fact which apparently was an inadvertent factual mistake regarding the proceedings of this Court and especially because the question of considering according of sanction could not have arisen for consideration at all, if any cognizance of the offences would have been already taken by the Court. What is important to be seen is that the basic factual matrix on the basis of which sanction to prosecute was sought and as which was placed before the competent sanctioning authority remained the same and it was on the basis of the same that necessary sanction to prosecute u/s 19 P.C. Act, 1988 for the offences u/s 13 (1) (d) r/w 13 (2) P.C. Act and for any offences punishable under other provisions of law in respect of the said offences was granted.
In the case Dattatreya Moreshwar v. State of Bombay, AIR 1952, SC 181, it was observed by Hon'ble Supreme Court as under:
"In that case there was ample evidence on the record to prove that a decision had in fact been taken by the appropriate authority and the infirmity in the form of the authentication did not vitiate the order but only meant that the presumption could not be availed of by the State".
Similarly, in the case State of Bombay v. Purushotam Jog Naik, AIR 1952 SC 317 while discussing the form of sanction order, CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 420 of 467 Hon'ble Supreme Court observed as under:
"In our opinion, the Constitution does not require a magic incantation which can only be expressed in a set formula of words. What we have to see is whether the substance of the requirement is there."
508. In a recent case tiled Director, CBI and Another v Ashok Kumar Aswal and Another (2015) 16 SCC 163, a similar issue as is in the present case came up for consideration. Hon'ble Supreme Court observed as under:
"12. Finally, the learned counsel has submitted that enormous prejudice will be caused to Respondent 1 if the prosecution on the basis of an ex facie invalid sanction is allowed to continue. The interference made by the High Court, therefore, is appropriate. In this regard, reliance has been placed on a judgment of this Court in Mansukhlal Vithaldas Chauhan v State of Gujarat (SCC paras 18 and 19).
13. We have considered the submissions advanced. We have also examined the records-in-original placed before us. Having perused the said records we do not find that at any earlier point of time sanction was refused by the competent authority for prosecution of Respondent 1 Ashok Kumar Aswal. There is no dispute that the competent authority to grant sanction in the present case is the Finance Minister. Before the matter reaches the Finance Minister, naturally, it has to be processed at different levels and what we find from the notings in the original file is that certain authorities at different levels may have taken one view or the other of the matter. All such views which were earlier recorded in the file notings were placed before the Finance Minister by cataloguing the events in chronological order. It is on a consideration of the totality of the facts including the manner in which the matter had been processed at different levels, that the Finance Minister eventually accorded his approval for grant of sanction on 8-8- 2009. The file, in fact, had not reached the Finance Minister at any earlier point of time.
14. We also do not find from the records-in-original placed CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 421 of 467 before us any indication of the exercise of any overt or unjustified pressure on the part of any authority on the sanctioning authority so as to sustain the arguments advanced to the said effect on behalf of Respondent 1. We have also looked into the relevant part of the original record with regard to the corrigendum issued and on a careful study of the contents of the said corrigendum and the context in which it has been made what we find therefrom is that the corrigendum dated 14- 9-2009 does not in any way affect the terms or conditions of the grant of sanction as was made by the Finance Minister in the file on 8-8-2009 on the basis of which the formal order dated 12-8-2009 came to be issued.
15. In fact, all that the corrigendum does is to split up the alleged "reduced" demand of bribe into two separate amounts of Rs. 25 lakhs each instead of a lump sum amount of Rs. 50 lakhs as mentioned in the sanction order dated 12-08-2009. The corrigendum also dispenses with certain provisions of IPC. The aforesaid exclusion of some of the specific provisions of IPC really works to the benefit of Respondent 1-accused and not to his prejudice. If the corrigendum does not, as we are inclined to hold, affect the substratum of the sanction granted initially on 8-8-2009/12-8-2009 we will have no reason to take the view that initial sanction order has in any way been modified or altered so as to require the approval of the Finance Minister once again. Surely for correction of typographical errors the file need not have travelled all the way up to the Finance Minister, once again. The fact that the said sanction order has been superseded may have been mentioned in the letter of the Under-Secretary communicating the said order dated 21-10-2009 to the appellant. However, what is of relevance is that the said fact of supersession is not supported by reference to any authority or decision in the file and, therefore, would not deserve any further attention of the Court. All the above apart, time and again, this Court has laid down that the validity of a sanction order, if one exists, has to be tested on the touchstone of the prejudice to the accused which is essentially a question of fact and, therefore, should be left to be determined in the course of the trial and not in the exercise of jurisdiction either under Section 482 of the Code of Criminal procedure, 1973 or in a proceeding under Articles 226/227 of the Constitution."
509. Thus what is important to see over here is whether the CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 422 of 467 substratum of initial sanction accorded by the competent sanctioning authority has been changed or altered on account of the corrections made in the new sanction orders. It is also thus clear that for corrections of typographical mistakes or inadvertent errors the file need not travel all the way to competent sanctioning authority again. Even otherwise nothing has been shown on behalf of accused public servants as to in what manner any prejudice has been caused to them or that any failure of justice has occurred.
510. At this stage the observations of Hon'ble Supreme Court in an Order dated 13.07.2017 passed in Criminal Appeal No. 1137 of 2017 titled Girish Kumar Suneja vs CBI preferred by one of the accused in one other coal scam matter itself, will be worth reproducing here:
(Para 67, 71 and 72) "67. In Central Bureau of Investigation v. V.K. Sehgal it was held that for determining whether the absence of or any error, omission or irregularity in the grant of sanction has occasioned or resulted in a failure of justice, the court has a duty to consider whether the accused had raised any objection on that score at the trial stage. Even if it had been raised at the trial and early enough, it would not be sufficient to conclude that there was a failure of justice. Whether in fact and in law there was a failure of justice would differ from case to case but it was made clear that if such an objection was not raised in the trial, it certainly cannot be raised in appeal or in revision. It was explained that a trial involves judicial scrutiny of the entire material before the Special Judge. Therefore, if on a judicial scrutiny of the evidence on record the Special Judge comes to a conclusion that there was sufficient reason to convict the accused person, the absence or error or omission or irregularity would actually become a surplusage. The necessity of a sanction is only as a filter to safeguard public servants from frivolous or mala fide or vindictive prosecution. However, after judicial scrutiny is complete and a CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 423 of 467 conviction is made out through the filtration process, the issue of a sanction really would become inconsequential. It was held in paragraphs 10 and 11 of the Report as under:
"A court of appeal or revision is debarred from reversing a finding (or even an order of conviction and sentence) on account of any error or irregularity in the sanction for the prosecution, unless failure of justice had been occasioned on account of such error or irregularity. For determining whether want of valid sanction had in fact occasioned failure of justice the aforesaid sub-section (2) enjoins on the court a duty to consider whether the accused had raised any objection on that score at the trial stage. Even if he had raised any such objection at the early stage it is hardly sufficient to conclude that there was failure of justice. It has to be determined on the facts of each case. But an accused who did not raise it at the trial stage cannot possibly sustain such a plea made for the first time in the appellate court......
In a case where the accused failed to raise the question of valid sanction the trial would normally proceed to its logical end by making a judicial scrutiny of the entire materials. If that case ends in conviction there is no question of failure of justice on the mere premise that no valid sanction was accorded for prosecuting the public servant because the very purpose of providing such a filtering check is to safeguard public servants from frivolous or mala fide or vindictive prosecution on the allegation that they have committed offence in the discharge of their official duties. But once the judicial filtering process is over on completion of the trial the purpose of providing for the initial sanction would bog down to a surplusage. This could be the reason for providing a bridle upon the appellate and revisional forums as envisaged in Section 465 of the Code of Criminal Procedure."
71. What does the expression 'failure of justice' mean? In Shamnsaheb M. Multani v. State of Karnataka it was held that the expression 'failure of justice' is too pliable or facile an expression which could be fitted in any situation. The criminal court, particularly the superior court should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage. It was held in paragraphs 23 and 24 of the Report as follows:
"We often hear about "failure of justice" and quite often the CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 424 of 467 submission in a criminal court is accentuated with the said expression. Perhaps it is too pliable or facile an expression which could be fitted in any situation of a case. The expression "failure of justice" would appear, sometimes, as an etymological chameleon (the simile is borrowed from Lord Diplock in Town Investments Ltd. v. Deptt. of the Environment30). The criminal court, particularly the superior court should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage.
One of the cardinal principles of natural justice is that no man should be condemned without being heard, (audi alteram partem). But the law reports are replete with instances of courts hesitating to approve the contention that failure of justice had occasioned merely because a person was not heard on a particular aspect. However, if the aspect is of such a nature that non-explanation of it has contributed to penalising an individual, the court should say that since he was not given the opportunity to explain that aspect there was failure of justice on account of non-compliance with the principle of natural justice."
72. This decision was followed in State of M.P. v. Bhooraji and also in Rattiram v. State of M.P. In the latter decision, it was held that the expression 'failure of justice' must be given its due significance otherwise every procedural lapse or interdict could be interpreted to result in a failure of justice making the criminal justice delivery system completely illusory. Rattiram dealt with non-compliance with Section 193 of the Cr.P.C. and it was held that this did not result in a failure of justice. It was held in paragraphs 65 and 66 of the Report as follows:
"We may state without any fear of contradiction that if the failure of justice is not bestowed its due signification in a case of the present nature, every procedural lapse or interdict would be given a privileged place on the pulpit. It would, with unnecessary interpretative dynamism, have the effect potentiality to cause a dent in the criminal justice delivery system and eventually, justice would become illusory like a mirage. It is to be borne in mind that the legislature deliberately obliterated certain rights conferred on the accused at the committal stage under the new Code. The intendment of the legislature in the plainest sense is that every stage is not to be treated as vital and it is to be interpreted to subserve the substantive objects of the criminal trial.
Judged from these spectrums and analysed on the aforesaid CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 425 of 467 premises, we come to the irresistible conclusion that the objection relating to non-compliance with Section 193 of the Code, which eventually has resulted in directly entertaining and taking cognizance by the Special Judge under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, does not vitiate the trial and on the said ground alone, the conviction cannot be set aside or there cannot be a direction of retrial and, therefore, the decision rendered in Bhooraji lays down the correct law inasmuch as there is no failure of justice or no prejudice is caused to the accused."
511. In view of my aforesaid discussion, I am thus of the considered opinion that no fault can be found with the sanction orders dated 27.01.2016 as were issued under the signatures of PW 17 Raj Kishan Vats on the basis of sanction accorded by the competent sanctioning authority u/s 19 P.C. Act for prosecution of A-5 K.S. Kropha and A-6 K.C. Samria for the offences u/s 13(1)(d) r/w 13(2) P.C. Act, 1988 and for any offences punishable under other provisions of law in respect of said offences.
(M) Whether sanction u/s 197 Cr. PC was required against A-4 H.C. Gupta, A-5 K.S. Kropha and A-6 K.C. Samria
512. Ld. Counsels for the accused MOC Officers have also 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 by them 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.
513. However, before proceeding to discuss the aforesaid issue, I may mention that I had consciously not dealt with the present issue at CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 426 of 467 an earlier stage of the judgment as I first intended to examine as to qua 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.
514. 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 such public servants which provided them an occasion to commit such acts of omission and commission while choosing to 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 CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 427 of 467 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.
515. 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 committed by them 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 has accorded the sanction for prosecution of the two accused public servants for the offence u/s 13(1)(d) r/w 13 (2) Prevention of Corruption Act, 1988 and for any offences punishable under other provisions of law in respect of the said offences. Thus the offence of criminal conspiracy i.e. u/s 120-B IPC as discussed above qua public servants in question related to the offence of criminal misconduct i.e. u/s 13 (1) (d) P.C. Act, 1988 so not only the competent sanctioning authority has accorded sanction for CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 428 of 467 the same but also no separate sanction u/s 197 Cr.PC is required. Further as A-4 H.C. Gupta had 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. However, once again as I have already discussed at length that the very acts which were committed by A-4 H.C. Gupta were primarily on account of abuse of his position as such public servant and can not be termed as acts done in the discharge of his official duties warranting any requirement of sanction u/s 197 Cr.PC qua him also.
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 either of the three accused MOC officers.
516. 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 CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 429 of 467 present case in as much as the various acts of omission and commission committed by the accused public servants and as discussed at length in the present judgment can not be said to have been committed by the accused MOC officers in the discharge of their official duties. As 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 VMPL and its director A-2 Vikash Patni and its Business Development Manager i.e. A-3 Anand Mallick so as to procure allotment of Moira-Madhujore coal block in favour of A-1 M/s VMPL. 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.
517. Thus, in view of my aforesaid discussion, it is clear that there CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 430 of 467 was no requirement of sanction u/s 197 Cr. PC in the present matter.
(N) Effect of Prevention of Corruption (Amendment) Act, 2018 on the present proceedings.
518. Subsequent to the promulgation of Prevention of Corruption (Amendment) Act 2018 [herein-after referred to as "Amendment Act 2018"] on 26.07.2018 by Government of India, certain additional arguments were addressed by Ld. Counsel Sh. Rahul Tyagi on behalf of accused public servants. Written submissions were also filed by him in support of his submissions.
519. The primary submission put-forth by him was that by virtue of Amendment Act 2018, the Legislature has introduced many changes in the Principal Act of 1988 and has also deemed it appropriate to omit the earlier Section 13 (1) (d) P.C. Act, 1988 completely. The old section 13 was stated to have been substituted by a new section 13 and thereby the right of the State to punish any act or omission under the old Section 13 has been taken away. It has been submitted that as the accused public servants in the present trial have been charged primarily for the offence as defined under the old section 13 (1) (d) P.C. Act, 1988 so on account of omission of said offence now from the Prevention of Corruption Act, 1988, the said offence should be deemed to have been non-existent on the statute book since its inception itself. It has been further submitted that the Legislature by way of Amendment Act, 2018 has also not deemed it appropriate to provide a saving clause as regard the proceedings which have been initiated under the old Section 13 (1) (d) P.C. Act, 1988 and as the CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 431 of 467 earlier Section 13 (1) (d) has been omitted so even General Clauses Act, 1897 is not applicable qua the legal proceedings earlier instituted under the old section 13. It was thus submitted that any further proceedings qua the said offences should be deemed non-est in law. While referring to the 69 th report of Parliamentary Standing Committee on the Prevention of Corruption (Amendment) Bill 2013, it was submitted that the intention of the Legislature was clear that only such acts or omissions should be punishable where there is element of any quid-pro-quo or undue advantage to the public servant concerned. It was submitted that new Section 13 P.C. Act, as now stands on the statute book, clearly shows that the earlier offence under the old section 13 (1) (d) P.C, 1988. Act completely ceases to exist. It was also submitted that from the objects and reasons of the Amendment Act, 2018 and the new provisions introduced thereby, the intention of the Legislature is very clear that it never sought to punish those acts or omission of the public servants which were made punishable under the old section 13 (1) (d) P.C. Act without there being any element of quid-pro-quo.
520. It was thus submitted by Ld. Counsel Sh. Rahul Tyagi for accused public servants that in order to continue with the present proceedings no resort can even be placed upon Section 6 of General Clauses Act, 1897 for the same is applicable only to those cases where an existing statute has been repealed by any Central Act or regulation. It was submitted that Hon'ble Supreme Court has categorically held that where a provision in a Statute has been CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 432 of 467 omitted by Legislature then such omission is not covered by Section 6 General Clauses Act and more so when intention of the Legislature appears to be otherwise. It was thus reiterated that in the absence of a saving clause and on account of omission of Section 13 (1) (d), P.C. Act from the statute book, it is clear that no legal proceedings can neither be instituted under the old section 13 (1) (d) P.C. Act nor can be continued if already instituted.
521. By way of yet another argument, it was also submitted that on account of omission of old section 13 (1) (d) from the statute book, the said offences ceases to be punishable any longer and thus the alleged acts or omissions committed by the accused public servants can not be any longer punished by this Court in view of the settled preposition of law whereby the Court is bound to give benefit of reduced penalty to the accused public servants.
In support of his aforesaid submissions, Ld. Counsel Sh. Rahul Tyagi for accused public servants i.e. A-5 K.S. Kropha and A-6 K.C. Samria placed reliance upon the following case law:
S. Title Citation
No.
1. State of Punjab Vs Mohar Singh. MANU/SC/0043/1954
2. Rayala Corporation (P) Ltd and Ors Vs. The MANU/SC/0645/1969
Director of Enforcement, New Delhi
3. Kolhapur Canesugar Works Ltd & Ors MANU/SC/0060/2000
VS.Union of India & Ors
4. General Finanace Co. and Ors Vs. Assistant MANU/SC/0725/2002
Commissioner of Income Tax, Punjab
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 433 of 467
5. T. Barai Vs Henry Ah Hoe & Ors. MANU/SC/0123/1982
6. Rattan Lal Vs State of Punjab MANU/SC/0072/1964
522. On the other hand Ld. Sr. P.P. Sh. Sanjay Kumar strongly opposed the aforesaid submissions of Ld. Counsel for accused public servants stating that had there been any intention of the Legislature that the on-going proceedings under the old section 13 (1) (d) P.C. Act shall not continue then there would have been a specific provision made in the Amendment Act, 2018. It was thus submitted that since the Legislature has chosen to not provide any such clause in the Amendment Act, 2018, so it can not be stated that the proceedings pending under old section 13 (1) (d) P.C. Act can not be continued any further.
My Discussion
523. The arguments put-forth by Ld. Counsel Sh. Rahul Tyagi for accused MOC officers are two-fold. Firstly that the impugned provision i.e. old section 13 (1) (d) P.C. Act, 1988 has since been omitted by virtue of Amendment Act, 2018 from 26.07.2018 i.e. the date when the same was published in the Gazette of India. It has been thus submitted that since omission of a provision in an enactment does not amount to repeal thereof so in such a situation Section 6 General Clauses Act, 1897 has no application which specifically applies to repeal of an enactment only. It has also been argued that since no similar provision as was earlier provided in the CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 434 of 467 old Section u/s 13 (1) (d) has been re-enacted by virtue of Amendment Act, 2018 so it is clear that the intention of the Legislature was that no such offence under the old section 13 (1) (d) in the absence of any element of quid-pro-quo or unde advantage to the public servant concerned be made punishable.
524. In so far as the first argument of Ld. defence Counsel regarding non-applicability of Section 6 General Clauses Act, 1897, is concerned, I may state that the same does not hold ground at all in view of the categorical pronouncement of Hon'ble Supreme Court of India in the two cases Fibre Boards Private Limited, Bangalore Vs. Commissioner of Income Tax, Bangalore (2015) 376 ITR 596 and Shree Bhagwati Steel Rolling Mills Vs. Commissioner of Central Excise and Another (2016) 3 Supreme Court Cases 643. Though Ld. Counsel Sh. Rahul Tyagi has placed reliance upon the decisions of Hon'ble Supreme Court in the two cases i.e. Rayala Corporation (P) Ltd. and Ors. Vs. The Director of Enforcement, New Delhi, (Supra) and Kolhapur Canesugar Works Ltd. & Ors. Vs. Union of India & Ors., (Supra) , but unfortunately Ld. Defence Counsel has chosen to not present the latest position of law before this Court as has been laid down by Hon'ble Supreme Court in the two cases i.e. Fibre Boards Private Limited (Supra) and Shree Bhagwati Steel Rolling Mills (Supra).
525. While discussing the Rayala Corporation (P) Ltd. case (Supra), Hon'ble Supreme Court in the Fibre Board case (Supra) made the following observations:
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 435 of 467 "25. In Rayala Corporation (P) Ltd., what fell for decision was whether proceedings could be validly continued on a complaint in respect of a charge made Under Rule 132A of the Defence of India Rules, which ceased to be in existence before the accused were convicted in respect of the charge made under the said rule. The said Rule 132A was omitted by a notification dated 30-3-1966. What was decided in that case is set out by para 17 of the said judgment, which is as follows: (SCC p. 424) "17. Reference was next made to a decision of the Madhya Pradesh High Court in State of M.P. v. Hiralal Sutwala but, there again, the accused was sought to be prosecuted for an offence punishable under an Act on the repeal of which Section 6 of the General Clauses Act had been made applicable. In the case before us, Section 6 of the General Clauses Act cannot obviously apply on the omission of Rule 132-A of the DIRs for the two obvious reasons that Section 6 only applies to repeals and not to omissions, and applies when the repeal is of a Central Act or Regulation and not of a rule. If Section 6 of the General Clauses Act had been applied, no doubt this complaint against the two accused for the offence punishable Under Rule 132-A of the DIRs could have been instituted even after the repeal of that rule."
26. It will be clear from a reading of this paragraph that a Madhya Pradesh High Court judgment was distinguished by the Constitution Bench on two grounds. One being that Section 6 of the General Clauses Act does not apply to a rule but only applies to a Central Act or Regulation, and secondly, that Section 6 itself would apply only to a "repeal" not to "an omission". This statement of law was followed by another Constitution Bench in Kolhapur Canesugar Works Ltd. (2000) 2 SCC 536 case. After setting out paragraph 17 of the earlier judgment, the second constitution bench judgment states as follows: (SCC p. 550, para 33) "33. In para 21 of the judgment the Full Bench has noted the decision of a Constitution Bench of this Court in Chief Inspector of Mines v. Karam Chand Thapar and has relied upon the principles laid down therein. The Full Bench overlooked the position that that was a case Under Section 24 of the General Clauses Act which makes provision for continuation of orders, notification, scheme, rule, form or bye- law, issued under the repealed Act or Regulation under an Act after its repeal and re-enactment. In that case Section 6 did CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 436 of 467 not come up for consideration. Therefore the ratio of that case is not applicable to the present case. With respect we agree with the principles laid down by the Constitution Bench in Rayala Corporation Case (1969) 2 SCC 412. In our considered view the ratio of the said decision squarely applies to the case on hand."
27. Kolhapur Canesugar Works Ltd. (2000) 2 SCC 536 judgment also concerned itself with the applicability of Section 6 of the General Clauses Act to the deletion of Rule 10 and 10A of the Central Excise Rules on 6-8-1977.
28. An attempt was made in General Finance Co. v. CIT (2002) 7 SCC 1 to refer these two judgments to a larger bench on the point that an omission would not amount to a repeal for the purpose of Section 6 of the General Clauses Act. Though the Court found substance in the argument favouring the reference to a larger bench, ultimately it decided that the prosecution in cases of non-compliance with the provision therein contained was only transitional and cases covered by it were few and far between, and hence found on facts that it was not an appropriate case for reference to a larger bench.
29. We may also point out that in G.P. Singh's Principles of Statutory Interpretation, 12th Edition, the learned author has criticized the aforesaid judgments in the following terms:
"Section 6 of the General Clauses Act applies to all types of repeals. The section applies whether the repeal be express or implied, entire or partial or whether it be repeal simpliciter or repeal accompanied by fresh legislation. The section also applies when a temporary statute is repealed before its expiry, but it has no application when such a statute is not repealed but comes to an end by expiry. The section on its own terms is limited to a repeal brought about by a Central Act or Regulation. A rule made under an Act is not a Central Act or Regulation and if a rule be repealed by another rule, Section 6 of the General Clauses Act will not be attracted. It has been so held in two Constitution Bench decisions. The passing observation in these cases that 'Section 6 only applies to repeals and not to omissions' needs reconsideration for omission of a provision results in abrogation or obliteration of that provision in the same way as it happens in repeal. The stress in these cases was on the question that a 'rule' not being a Central Act or Regulation, as defined in the General Clauses Act, omission or repeal of a 'rule' by another 'rule' does not attract Section 6 of the Act and CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 437 of 467 proceedings initiated under the omitted rule cannot continue unless the new rule contains a saving clause to that effect." (At pp 697-698)
30. In view of what has been stated hereinabove, perhaps the appropriate course in the present case would have been to refer the aforesaid judgment to a larger Bench. But we do not find the need to do so in view of what is stated by us hereinbelow.
31. First and foremost, it will be noticed that two reasons were given in Rayala Corpn. (P) Ltd. (1969) 2 SCC 412 for distinguishing the Madhya Pradesh High Court judgment. Ordinarily, both reasons would form the ratio decidendi for the said decision and both reasons would be binding upon us. But we find that once it is held that Section 6 of the General Clauses Act would itself not apply to a rule which is subordinate legislation as it applies only to a Central Act or Regulation, it would be wholly unnecessary to state that on a construction of the word "repeal" in Section 6 of the General Clauses Act, "omissions" made by the legislature would not be included. Assume, on the other hand, that the Constitution Bench had given two reasons for the non- applicability of Section 6 of the General Clauses Act. In such a situation, obviously both reasons would be ratio decidendi and would be binding upon a subsequent bench. However, once it is found that Section 6 itself would not apply, it would be wholly superfluous to further state that on an interpretation of the word "repeal", an "omission" would not be included. We are, therefore, of the view that the second so-called ratio of the Constitution Bench in Rayala Corporation (P) Ltd. (1969) 2 SCC 412 cannot be said to be a ratio decidendi at all and is really in the nature of obiter dicta."
(Emphasis supplied by me)
526. Hon'ble Supreme Court thereafter dealt with yet another issue of implied repeal vis-a-vis applicability of Section 6 General Clauses Act, 1897. However the said observations will also be worth referring to over here.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 438 of 467 "32. Secondly, we find no reference to Section 6-A of the General Clauses Act in either of these Constitution Bench judgments. Section 6-A reads as follows:
"6A. Repeal of Act making textual amendment in Act or Regulation - Where any Central Act or Regulation made after the commencement of this Act repeals any enactment by which the text of any Central Act or Regulation was amended by the express omission, insertion or substitution of any matter, then, unless a different intention appears, the repeal shall not affect the continuance of any such amendment made by the enactment so repealed and in operation at the time of such repeal."
33. A reading of this Section would show that a repeal by an amending Act can be by way of an express omission. This being the case, obviously the word "repeal" in both Section 6 and Section 24 would, therefore, include repeals by express omission. The absence of any reference to Section 6A, therefore, again undoes the binding effect of these two judgments on an application of the 'per incuriam' principle.
34. Thirdly, an earlier Constitution Bench judgment referred to earlier in this judgment, namely, State of Orissa v. M.A. Tulloch & Co. AIR 1964 SC 1284 has also been missed. The Court there stated: (SCR pp. 483-84 : AIR pp. 1294-95, para 21) "...Now, if the legislative intent to supersede the earlier law is the basis upon which the doctrine of implied repeal is founded could there be any incongruity in attributing to the later legislation the same intent which Section 6 presumes where the word 'repeal' is expressly used. So far as statutory construction is concerned, it is one of the cardinal principles of the law that there is no distinction or difference between an express provision and a provision which is necessarily implied, for it is only the form that differs in the two cases and there is no difference in intention or in substance. A repeal may be brought about by repugnant legislation, without even any reference to the Act intended to be repealed, for once legislative competence to effect a repeal is posited, it matters little whether this is done expressly or inferentially or by the enactment of repugnant legislation. If such is the basis upon which repeals and implied repeals are brought about it appears to us to be both logical as well as in accordance with the principles upon which the rule as to implied repeal rests to attribute to that legislature which effects a repeal by necessary implication the same intention as that which would attend the CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 439 of 467 case of an express repeal. Where an intention to effect a repeal is attributed to a legislature then the same would, in our opinion, attract the incident of the saving found in Section 6 for the rules of construction embodied in the General Clauses Act are, so to speak, the basic assumptions on which statutes are drafted."
(emphasis supplied)
35. The two later Constitution Bench judgments also did not have the benefit of the aforesaid exposition of the law. It is clear that even an implied repeal of a statute would fall within the expression "repeal" in Section 6 of the General Clauses Act. This is for the reason given by the Constitution Bench in M.A. Tulloch & Company that only the form of repeal differs but there is no difference in intent or substance. If even an implied repeal is covered by the expression "repeal", it is clear that repeals may take any form and so long as a statute or part of it is obliterated, such obliteration would be covered by the expression "repeal" in Section 6 of the General Clauses Act.
36. In fact in Halsbury's Laws of England, Fourth Edn., it is stated that:
"So far as express repeal is concerned, it is not necessary that any particular form of words should be used. (R v. Longmead (1795) 2 Leach 694 : 168 ER 448, Leach at 696). All that is required is that an intention to abrogate the enactment or portion in question should be clearly shown. [Thus, whilst the formula "is hereby repealed" is frequently used, it is equally common for it to be provided that an enactment "shall cease to have effect" (or, If not yet in operation, "shall not have effect") or that a particular portion of an enactment "shall be omitted]."
37. At this stage, it is important to note that a temporary statute does not attract the provision of Section 6 of the General Clauses Act only for the reason that the said statute expires by itself after the period for which it has been promulgated ends. In such cases, there is no repeal for the reason that the legislature has not applied its mind to a live statute and obliterated it. In all cases where a temporary statute expires, the statute expires of its own force without being obliterated by a subsequent legislative enactment. But even in this area, if a temporary statute is in fact repealed at a point of time earlier than its expiry, it has been held that Section 6 of the General Clauses Act would apply. (See: State of Punjab v. Mohar Singh AIR 1955 SC 84 SCR at p. 898.)
38. In CIT v. Venkateswara Hatcheries (P) Ltd. (1999 3 SCC 632), this CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 440 of 467 Court was faced with an omission and re-enactment of two Sections of the Income Tax Act. This Court found that Section 24 of the General Clauses Act would apply to such omission and re-enactment. The Court has stated as follows: (SCC p. 638, para 12) "12. As noticed earlier, the omission of Section 2(27) and re- enactment of Section 80-JJ was done simultaneously. It is a very well-recognized rule of interpretation of statutes that where a provision of an Act is omitted by an Act and the said Act simultaneously re-enacts a new provision which substantially covers the field occupied by the repealed provision with certain modification, in that event such re- enactment is regarded having force continuously and the modification or changes are treated as amendment coming into force with effect from the date of enforcement of the re-enacted provision."
(Emphasis supplied by me)
527. Subsequently the decision of Hon'ble Supreme Court in the Fibre Board case (Supra) again come up for consideration in the case Shree Bhagwati Steel Rolling Mills (Supra). It would be thus appropriate to reproduce the observations of Hon'ble Supreme Court as were made in the said case also:
"10. Since Shri Aggarwal has made detailed submissions on why according to him the judgment in Fibre Board's case is not correctly decided, we propose to deal with each of those submissions in some detail.
11. First and foremost, it is important to refer to the definition of "enactment" contained in Section 3(19) of the General Clauses Act. The said definition clause states that "enactment" shall mean the following:
"3. (19) 'enactment' shall include a Regulation (as hereinafter defined) and any Regulation of the Bengal, Madras or Bombay Code, and shall also include any provision contained in any Act or in any such Regulation as aforesaid.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 441 of 467
12. From this it is clear that when Section 6 of the General Clauses Act speaks of the repeal of any enactment, it refers not merely to the enactment as a whole but also to any provision contained in any Act. Thus, it is clear that if a part of a statute is deleted, Section 6 would nonetheless apply. Secondly, it is clear, as has been stated by referring to a passage in Halsbury's Laws of England in the Fibre Board's judgment, that the expression "omission" is nothing but a particular form of words evincing an intention to abrogate an enactment or portion thereof. This is made further clear by the Legal Thesaurus (Deluxe Edition) by William C Burton, 1979 Edition. The expression "delete" is defined by the Thesaurus as follows:
"Delete: Blot out, cancel, censor, cross off, cross out, cut, cut out, dele, discard, do away with, drop, edit out, efface, elide, eliminate, eradicate, erase, excise, expel, expunge, extirpate, get rid of, leave out, modify by excisions, obliterate, omit, remove, rub out, rule out, scratch out, strike off, take out, weed wipe out."
Likewise the expression "omit" is also defined by this Thesaurus as follows:
"Omit:- Abstain from inserting, bypass, cast aside, count out, cut out, delete, discard, dodge, drop exclude, exclude, fail to do, fail to include, fail to insert, fail to mention, leave out, leave undone, let go, let pass, let slip, miss, neglect, omittere, pass over, praetermittere, skip, slight, transire." And the expression "repeal" is defined as follows: "Repeal: Abolish, abrogare, abrogate, annul, avoid, cancel, countermand, declare null and void, delete, eliminate, formally withdraw, invalidate, make void, negate, nullify, obliterate, officially withdraw, override, overrule, quash, recall, render invalid, rescind, rescindere, retract, reverse, revoke, set aside, vacate, void, withdraw."
13. On a conjoint reading of the three expressions "delete", "omit", and "repeal", it becomes clear that "delete" and "omit" are used interchangeably, so that when the expression "repeal" refers to "delete" it would necessarily take within its ken an omission as well. This being the case, we do not find any substance in the argument that a "repeal" amounts to an obliteration from the very beginning, whereas an "omission" is only in futuro. If the expression "delete" would amount to a "repeal", which the Appellant's counsel does not deny, it is clear that a conjoint reading of Halsbury's Laws of England CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 442 of 467 and the Legal Thesaurus cited hereinabove both lead to the same result, namely that an "omission" being tantamount to a "deletion" is a form of repeal.
14. Learned Counsel's second argument that Section 6A of the General Clauses Act when it speaks of an "omission" only speaks of an "amendment" which omits and, therefore does not refer to a repeal is equally fallacious. In Bhagat Ram Sharma v. Union of India, this Court held that there is no real distinction between a repeal and an amendment and that "amendment" is in fact a wider term which includes deletion of a provision in an existing statute. In the said judgment, this Court held:
"17. It is a matter of legislative practice to provide while enacting an amending law, that an existing provision shall be deleted and a new provision substituted. Such deletion has the effect of repeal of the existing provision. Such a law may also provide for the introduction of a new provision. There is no real distinction between 'repeal' and an 'amendment'. In Sutherland's Statutory Construction, 3 rd Edn., Vol. 1 at p. 477, the learned author makes the following statement of law:
The distinction between repeal and amendment as these terms are used by the Courts is arbitrary. Naturally the use of these terms by the Court is based largely on how the Legislature have developed and applied these terms in labelling their enactments. When a section is being added to an Act or a provision added to a section, the Legislatures commonly entitled the Act as an amendment....When a provision is withdrawn from a section, the Legislatures call the Act an amendment particularly when a provision is added to replace the one withdrawn. However, when an entire Act or section is abrogated and no new section is added to replace it, Legislatures label the Act accomplishing this result a repeal. Thus as used by the Legislatures, amendment and repeal may differ in kind-addition as opposed to withdrawal or only in degree-abrogation of part of a section as opposed to abrogation of a whole section or Act; or more commonly, in both kind and degree-addition of a provision to a section to replace a provision being abrogated as opposed by abrogation of a whole section of an Act. This arbitrary distinction has been followed by the Courts, and they have developed separate rules of construction for each. However, they have recognised that frequently an Act purporting to be an amendment has the same qualitative effect as a repeal-
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 443 of 467 the abrogation of an existing statutory provision-and have therefore applied the term "implied repeal' and the rules of construction applicable to repeals to such amendments.
18. Amendment is in fact, a wider term and it includes abrogation or deletion of a provision in an existing statute. If the amendment of an existing law is small, the Act professes to amend; if it is extensive, it repeals a law and re-enacts it. An amendment of substantive law is not retrospective unless expressly laid down or by necessary' implication inferred.
(emphasis supplied)
15. It is clear, therefore, that when this Court referred to Section 6A of the Generals Clauses Act in Fibre Board's case and held that Section 6A shows that a repeal can be by way of an express omission, obviously what was meant was that an amendment which repealed a provision could do so by way of an express omission. This being the case, it is clear that Section 6A undisputedly leads to the conclusion that a repeal would include a repeal by way of an express omission.
16. The Learned Counsel then argued that while distinguishing the Madhya Pradesh High Court's judgment in Rayala Corporation, a Constitution Bench of this Court expressly held as the first reason that Section 6 applies only to repeals and not to omissions. The Fibre Board's judgment has clearly held as follows:
"31. First and foremost, it will be noticed that two reasons were given in Rayala Corporation (P) Ltd. for distinguishing the Madhya Pradesh High Court judgment. Ordinarily, both reasons would form the ratio decidendi for the said decision and both reasons would be binding upon us. But we find that once it is held that Section 6 of the General Clauses Act would itself not apply to a rule which is subordinate legislation as it applies only to a Central Act or Regulation, it would be wholly unnecessary to state that on a construction of the word "repeal" in Section 6 of the General Clauses Act, "omissions" made by the legislature would not be included. Assume, on the other hand, that the Constitution Bench had given two reasons for the non-applicability of Section 6 of the General Clauses Act. In such a situation, obviously both reasons would be ratio decidendi and would be binding upon a subsequent bench. However, once it is found that Section 6 itself would not apply, it would be wholly superfluous to further state that on an interpretation of the word "repeal", an CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 444 of 467 "omission" would not be included. We are, therefore, of the view that the second so-called ratio of the Constitution Bench in Rayala Corporation (P) Ltd. cannot be said to be a ratio decidendi at all and is really in the nature of obiter dicta."
17. Merely because the Constitution Bench referred to a repeal not amounting to an omission as the first reason given for distinguishing the Madhya Pradesh High Court's judgment would not undo the effect of ITR para 27 SCC para 31 of Fibre Board's case which, as has already been stated, clearly makes the distinction between Section 6 not applying at all and Section 6 being construed in a particular manner. Obviously, if the Section were not to apply at all, any construction of the Section would necessarily be in the nature of obiter dicta.
18. We also find that Section 6 of the General Clauses Act could not possibly apply to the facts in Rayala Corporation's case for yet another reason. Clause 2 of Rule 132-A of the Defence of India (amendment) Rules, 1965 which was referred to in para 14 of the judgment in Rayala Corporation reads as follows:
"14. ....'132-A. (2) In the Defence of India Rules, 1962, Rule 132A (relating to prohibition of dealings in foreign exchange) shall be omitted except as respects things done or omitted to be done under that rule.' "
19. A cursory reading of Clause 2 shows that after omitting Rule 132A of the Defence of India Rules, 1962, the provision contains its own saving clause. This being the case, Section 6 can in any case have no application as Section 6 only applies to a Central Act or Regulation "unless a different intention appears". A different intention clearly appears on a reading of Clause 2 as only a very limited savings clause is incorporated therein. In fact, this aspect is noticed by the Constitution Bench in para 18 of its judgment, in which the Constitution Bench states:
"18. ....As we have indicated earlier, the notification of the Ministry of Home Affairs omitting Rule 132-A of the DIRs did not make any such provision similar to that contained in Section 6 of the General Clauses Act."
20. It was then urged before us that Section 31 of the Prevention of Corruption Act, 1988 would also lead to the conclusion that Parliament itself is cognizant of the fact that an omission cannot amount to a repeal. Section 31 of the Prevention of Corruption Act, 1988, states as follows:
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 445 of 467 "31. Omission of certain sections of Act 45 of 1860. - Sections 161 to 165A (both inclusive) of the Indian Penal Code, 1860 (45 of 1860) shall be omitted, and Section 6 of the General Clauses Act, 1897 (10 of 1897), shall apply to such omission as if the said sections had been repealed by a Central Act."
21. It is settled law that Parliament is presumed to know the law when it enacts a particular piece of legislation. The Prevention of Corruption Act was passed in the year 1988, that is long after 1969 when the Constitution Bench decision in Rayala Corporation had been delivered. It is, therefore, presumed that Parliament enacted Section 31 knowing that the decision in Rayala Corporation had stated that an omission would not amount to a repeal and it is for this reason that Section 31 was enacted. This again does not take us further as this statement of the law in Rayala Corporation is no longer the law declared by the Supreme Court after the decision in the Fibre Board's case. This reason therefore again cannot avail the Appellant.
22. The reference to the savings provision in Section 1 of the Contract Act again does not take us very much further as the expression "repeal" as has been pointed out above can be of part of an enactment also. This being the case, when the legislature uses the word "omit" it usually does so when it wishes to delete a particular section as opposed to deleting an entire Act. As has been noticed both in Fibre Board's case and hereinabove, these are all expressions which only go to form and not to substance."
(Emphasis supplied by me)
528. The Hon'ble Court further went on to observe in Para 23 as under:
"23. Fibre Board's case is a recent judgment which, as has correctly been argued by Shri Radhakrishnan, learned senior Counsel on behalf of the revenue, clarifies the law in holding that an omission would amount to a repeal. The converse view of the law has led to an omitted provision being treated as if it never existed, as Section 6 of the General Clauses Act would not then apply to allow the previous operation of the provision so omitted or anything duly done or suffered CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 446 of 467 thereunder. Nor may a legal proceeding in respect of any right or liability be instituted, continued or enforced in respect of rights and liabilities acquired or incurred under the enactment so omitted. In the vast majority of cases, this would cause great public mischief, and the decision of Fibre Board's case is therefore clearly delivered by this Court for the public good, being, at the very least a reasonably possible view. Also, no aspect of the question at hand has remained unnoticed. For this reason also we decline to accept Shri Aggarwal's persuasive plea to reconsider the judgment in Fibre Board's case."
529. Thus it has been specifically held by Hon'ble Supreme court that omission of an enactment would amount to repeal of the enactment. The Court while dealing with the meaning of various terms such as "repeal", "amendment" and "omission" also observed that mere use of certain terminologies by the Legislature be it "repeal", "amendment" or "omission" is of no consequence as the effect of the three terms is primarily the same.
Thus from the aforesaid discussion, it is clear that the contention of Ld. defence Counsel that Section 6 of General Clauses Act, 1897 would not have any application to the omission of old section 13 (1) (d) by the Amendment Act, 2018 is clearly not tenable.,
530. Coming now to the second limb of argument that the Legislature by way of Amendment Act, 2018 has expressed its categorical intention that only such offences relating to public servants will be punishable where there is element of quid-pro-quo or undue advantage to the public servant concerned or any attempt has been made by him in this regard. Thus as regard the offence of CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 447 of 467 criminal misconduct, it was submitted that while deleting the old provision of Section 13 (1) (d) P.C. Act, 1988 and by not re-enacting any such similar provision, the Legislature has clearly expressed its intention that the earlier defined offences u/s 13 (1) (d) P.C. Act 1988 shall no longer be an offence.
531. Before I advert on to deal with the aforesaid contention, it would be appropriate to refer to certain observations of Hon'ble Supreme Court in the case State of Punjab Vs Mohar Singh, (Supra). In fact Ld. Defence Counsel has also relied upon the said case in support of his arguments. In case of repeal of a provision by a new Act, Hon'ble Supreme Court while discussing as to whether the rights and liabilities under the repealed law remain alive or not laid down, the line of enquiry as under:
"The line of enquiry would be, not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them. We cannot therefore subscribe to the broad proposition that section 6 of the General Clauses Act is ruled out when there is repeal of an enactment followed by a fresh legislation. Section 6 would be applicable in such cases also unless the new legislation manifests an intention incompatible with or contrary to the provisions of the section. Such incompatibility would have to be ascertained from a consideration of all the relevant provisions of the new law and the mere absence of a saving clause is by itself not material. It is in the light of these principles that we now proceed to examine the facts of the present case."
532. The aforesaid observations were also referred to by Hon'ble supreme Court in a recent case titled Gunwantlal Godawat Vs. Union of India and Another (2018) 12 Supreme Court Cases 309. While referring to the observations made in Mohar Singh case CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 448 of 467 (Supra) Hon'ble Supreme Court observed as under:
"In order to see whether the rights and liabilities under the repealed law have been put an end to by the new enactment, the proper approach is not to enquire if the new enactment has by its new provisions kept alive the rights and liabilities under the repealed law but whether it has taken away those rights and liabilities. The absence of a saving clause in a new enactment preserving the rights and liabilities under the repealed law is neither material nor decisive of the question - see State of Punjab Vs. Mohar Singh AIR 1955 SC 84 and T.S. Baliah V. CIT AIR 1969 SC 701."
533. Thus from the aforesaid observations it is clear that the mere absence of a saving clause in the new enactment preserving the rights and liabilities under the repealed enactment is neither material nor decisive of the question as to whether the rights and liabilities under the repealed law have been put to an end to by the new enactment or not. What is required to be seen is whether the new enactment has taken away those rights and liabilities which were in existence under the repealed law. Thus in order to answer the question as to whether the Amendment Act, 2018 takes away the rights and liabilities which were in existence under the old section 13 (1) (d) or not, it would be appropriate to refer to the objects and reasons which warranted bringing in of the Amendment Act, 2018. The same are clearly instructive of ascertaining the intention of Legislature in bringing in Amendment Act, 2018.
The statement of objects and reasons read as under:
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 449 of 467 "The Prevention of Corruption (Amendment) Act, 2018 Statement of Objects and Reasons. - The Prevention of Corruption Act, 1988 provides for prevention of corruption and for matters connected therewith. The ratification by India of the United Nations Convention Against Corruption, the international practice on treatment of the offence of bribery and corruption and judicial pronouncements have necessitated a review of the existing provisions of the Act and the need to amend it so as to fill in gaps in description and coverage of the offence of bribery so as to bring it in line with the current international practice and also to meet more effectively, the country's obligations under the aforesaid Convention. Hence, the present Bill.
2. The salient features of the Bill, inter alia, are as follows:-
(a) section 7 of the Act at present covers the offence of public servant taking gratification other than legal remuneration in respect of an official act. The definition of offence is proposed to be substituted by a new comprehensive definition which covers all aspects of passive bribery, including the solicitation and acceptance of bribe through intermediaries and also acts of public servants acting outside their competence;
(b) the Act at present does not contain any provisions directly dealing with active domestic bribery, that is, the offence of giving bribe. Section 12 of the Act which provides for punishment for abetment of offences defined in section 7 or section 11, covers the offence indirectly. Section 24 provides that a statement made by a bribe giver in any proceedings against a public servant for an offence under sections 7 to 11, 13 and 15 of the Act shall not subject him to prosecution under section 12. Experience has shown that in a vast majority of cases, the bribe-giver goes scot free by taking resort to the provisions of section 24 and it becomes increasingly difficult to tackle consensual bribery. The aforesaid Convention enjoins that the promise, offering or giving, to a public official directly or indirectly, of an undue advantage, for the official himself or herself or another person or entity, in order that the official act or refrain from acting in the exercise of his or her official duties, be made a criminal offence. Accordingly, it is proposed to substitute a new section 8 to meet the said obligation;
(c) as the proposed new definitions of bribery, both as regards the solicitation and acceptance of undue advantage and as regards the promise, offering or giving, to a public official, directly or indirectly, of an undue advantage, are CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 450 of 467 found to be comprehensive enough to cover all offences presently provided in section 8 which covers taking gratification, in order, by corrupt or illegal means, to influence public servant; section 9 which covers taking gratification, for exercise of personal influence with public servant; section 10 which provides for punishment for abetment by public servant of offences defined in section 8 or section 9; and section 11 which provides for public servant obtaining valuable thing without consideration from person concerned in proceeding or business transacted by such public servant; and also the offences presently defined in clauses (a), (b) and (d) of sub- section (1) of section 13 of the Act which covers criminal misconduct by a public servant, it is proposed to omit the said sections;
(d) it is proposed to substitute section 9 to provide punishment for the offence relating to bribing a public servant by a commercial organisation. A commercial organisation will be guilty of this offence if any person associated with it offers, promises or gives a financial or other advantage to a public servant intending to obtain or retain business or some advantage in the conduct of business for the commercial organisation. The proposed section 10 provides for punishment of persons in charge of a commercial organisation which has been guilty of the offence under the proposed section 9;
(e) section 12 at present provides for punishment for abetment of offences defined in section 7 or section 11. It is proposed to substitute section 12 of the Act to provide punishment for abetment of all offences under the Act;
(f) it is proposed to substitute sub-section (1) of section 13 with a new subsection so as to omit the existing clauses (a), (b) and (d) of sub-section (1) as mentioned above; to incorporate the element of intentional enrichment in the existing clause (e) relating to possession of disproportionate assets by a public servant; and to modify the definition of "known sources of income" as contained in Explanation, to mean income received from any lawful source, that is, by doing away with the requirement of intimation in accordance with any law, rules or orders applicable to a public servant;
(g) section 14 at present provides for habitual commission of offences under section 8, 9 and 12. It is proposed to substitute section 14 of the Act to provide punishment for habitual commission of all offences under the Act;
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 451 of 467
(h) the Prevention of Corruption Act, at present, does not specifically provide for the confiscation of bribe and the proceeds of bribery. A Bill, namely, the Prevention of Corruption (Amendment) Bill, 2008, to amend the Prevention of Corruption Act, 1988, providing, inter alia, for insertion of a new Chapter IV-A in the Prevention of Corruption Act for the attachment and forfeiture of property of corrupt public servants on the lines of the Criminal Law (Amendment) Ordinance, 1944, was introduced in the Lok Sabha on 19 th December, 2008 and was passed by the Lok Sabha on 23 rd December, 2008. However, the said Bill lapsed due to dissolution of the Fourteenth Lok Sabha. It is proposed to insert similar provisions on the lines of the 2008 Bill in the Prevention of Corruption Act;
(i) the Prevention of Corruption (Amendment) Bill, 2008 had proposed an amendment to section 19 of the Act on the lines of section 197 of the Code of Criminal Procedure, 1973 for extending protection of prior sanction of the Government or competent authority after retirement or deminance of office by a public servant so as to provide a safeguard to a public servant from vexatious prosecution for any bona fide omission or commission in the discharge of his official duties. The said Bill having lapsed, this protection is, at present, not available for a person who has ceased to be a public servant. Section 19 is, therefore, proposed to be amended to provide the said protection to the persons who ceased to be public servants on the lines of the said Bill. Further, in the light of a recent judgment of the Supreme Court, the question of amending section 19 of the Act to lay down clear criteria and procedure for sanction of prosecution, including the stage at which sanction can be sought, timelines within which order has to be passed, was also examined by the Central Government and it is proposed to incorporate appropriate provisions in section 19 of the Act;
(j) section 6-A of the Delhi Special Police Establishment Act, 1946 contains a protection of prior approval of the Central Government in respect of officers working at policy making levels in the Central Government before any inquiry or investigation is conducted against them by the Delhi Special Police Establishment. The basic principle behind the protection under section 19 of the Prevention of Corruption Act, 1988 and section 6-A of the Delhi Special Police Establishment Act, 1946, being the same, namely, protection of honest civil servants from harassment by way of investigation or prosecution for things done in bonda fide CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 452 of 467 performance of pubic duty, it is felt that the protection under both these provisions should be available to public servants even after they cease to be public servants or after they cease to hold sensitive policy level position, as the case may be. Accordingly, it is proposed to amend section 6-A of the Delhi Special Police Establishment Act, 1946 for extending the protection of prior approval of the Central Government before conducting any inquiry or investigation in respect of offences under the Prevention of Corruption Act, 1988, to civil servants holding such senior policy level positions even after they cease to hold such positions due to reversion or retirement or other reasons.
3. The Bill seeks to achieve the above objectives.
(Emphasis supplied by me)
534. Thus from a bare perusal of the aforesaid objects and reasons of the Amendment Act, 2018 coupled with the various provisions so incorporated in the Principal Act, it is clear that the prime reason for introducing various amendments in the existing Prevention of Corruption Act, 1988 was that no offence in the absence of existence of malafide intention on the part of public servant concerned in committing a given act or omission be made punishable. The objects and reasons further states that the amendment in the Principal Act have been necessitated on account of ratification by India of the United Nations Convention against Corruption, the international practice on treatment of the offence of bribery and corruption and judicial pronouncements. These all factors thus necessitated a review of the existing provisions of the Act. While describing the salient features of the Bill, it has been further provided in Clause 2 (c) of the statement of objects and reasons that as the proposed new definition of bribery is comprehensive enough to cover CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 453 of 467 all offences presently provided in Section 8, 9, 10, 11 and also the offences presently defined in clauses (a), (b) and (d) of sub-section (1) of Section 13 of the Act which covers criminal misconduct by a public servant so it is proposed to omit the said section. Thus it is clear that the Legislature never intended to do away with the earlier provisions in the Principal Act but chose to omit the same as it was of the opinion that the new provisions being brought in by the Amendment Act of 2018 comprehensively covered the earlier provisions including that of criminal misconduct as defined in Clauses
(a), (b) and (d) of sub-section (1) of Section 13 of the Act. However the only difference which has been introduced in the Principal Act by way of the Amendment Act of 2018 is the element of intention i.e. mens rea for every offence under the P.C. Act. In this regard I have no hesitation in saying that the necessity to specifically introduce the element of guilty intention i.e. mens rea for all the offences under P.C. Act primarily arose on account of certain judicial pronouncements of the higher Courts of land. By way of some such judicial pronouncements it has been held that the offence u/s 13 (1) (d) (iii) P.C. Act which read as under, does not require existence of element of mens rea on the part of public servant concerned.
"13 (1) (d) (iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or"
535. Further a perusal of the 69 th report of Parliamentary Standing Committee titled "The Prevention of Corruption (Amendment) Bill, 2013" as has also been relied upon by Ld. Defence Counsel in CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 454 of 467 support of his arguments also shows that the intention of the Legislature was primarily to make only such offences punishable under the Prevention of Corruption Act which are coupled with malafide intention on the part of public servant concerned. The said report also states that the said concern arose on account of certain judicial decisions given by the higher Courts of the land. Certainly the element of quid-pro-quo has also been introduced in the new offences which have been brought on the statute book by way of Amendment Act of 2018. However as is observed in the cases Mohar Singh (Supra) and Gunwantlal Godawat (Supra), what is required to be seen is whether in the new enactment any intention contrary to that of earlier provisions (repealed provisions) appears or not. It is not to be seen as to whether the new enactment by its new provisions has kept alive the rights and liabilities under the repealed law or not but whether the new enactment has taken away the rights and liabilities which arose under the repealed law.
536. At this stage, it would be now worthwhile to have a brief glance over Section 6 General Clauses Act, 1897 which read as under :
Section 6 General Clauses Act, 1897 read as under:
"6. Effect of repeal. - Where this Act, or any [Central Act] or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not -
(a) receive anything not in force or existing at the time at which the repeal takes effect; or
(b) affect the previous operation of any enactment so repealed or anything duly done or suffered CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 455 of 467 thereunder; or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid.
and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed."
537. Thus in view of my aforesaid discussion, it is crystal clear that the Amendment Act of 2018 in no way affect the continuation of the present proceedings or passing of final judgment in any manner. It also does not in any manner affect the conviction of any accused under the old Section 13 (1) (d) P.C. Act, if the prosecution is successful in proving the same. However it is once again reiterated that on account of amendment so brought in, the only requirement which is required to be fulfilled by the prosecution is that the element of guilty intention i.e. mens rea ought to be proved for all the offences under the P.C. Act, 1988 including qua old section 13 (1) (d) (iii) P.C. Act, 1988.
538. For the aforesaid reasons the other argument of Ld. Defence Counsel that as old Section 13 (1) (d) P.C. Act no longer exists on statute book so no punishment can be imposed by this Court also does not hold ground. Section 6 General Clauses Act, 1897 as has been discussed and reproduced above clearly takes away the very CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 456 of 467 ground beneath the said argument of Ld. Defence Counsel.
539. Thus it stands conclusively established that the Prevention of Corruption (Amendment) Act, 2018 does not in any manner affect the continuation of present proceedings under the old section 13 (1) (d) and more so when I have already discussed and concluded that various acts and omissions were committed by the accused public servants with malafide intention.
However for academic purposes the matter can be viewed from yet another angle also.
540. As has been repeatedly asserted by the Legislature while enacting the original law of P.C. Act right from the year 1947 onwards or while introducing various Amendment Acts that the whole emphasis has been towards preventing and curtailing acts of corruption on the part of public servants. No one can argue that this has not been the intention of the Legislature at any point of time. Thus if in the light of the aforesaid undisputed objective of introducing such a law, the argument of Ld. Defence Counsel that no legal proceedings under the repealed provisions can be continued is accepted as correct then a situation will arise where a public servant, if required to be prosecuted for any act or omission committed by him prior to 26.07.2018 i.e. the date when Amendment Act of 2018 was notified then he can be prosecuted only under the new Section 7 or Section 13 of P.C. Act as have been introduced by the Amendment Act of 2018 but not under the old section 13 (1) (d) P.C. Act. Of CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 457 of 467 course initiation of such a prosecution would be only when all the ingredients of the offence is prima facie attracted and all other safeguards protecting an honest public servant are taken care of. However such a situation will clearly violate the fundamental right of the person concerned as has been provided to him under Article 20 (1) of the Constitution of India which read as under:
20. Protection in respect of conviction for offences.-- (1) No person shall be convicted of any offfence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.
541. Thus we will have a situation where a public servant will have to be prosecuted for an act or omission committed by him for an offence which in fact was not in existence on the day when the alleged act or omission was committed. Certainly such a course of action is neither warranted under law nor can be the intention of the Legislature while introducing Amendment Act of 2018.
542. Alternatively if a public servant can not be prosecuted for the offences as have been provided under new sections 7 and 13 P.C. Act as have been introduced by way of Amendment Act of 2018 then as per the contention of Ld. Defence Counsel we will have a situation where on account of repealing of old Section 13 (1) (a), (b) and (d) P.C. Act, 1988 there exists no law to prosecute and punish a public servant for any act of misdemeanor committed by him. Certainly to keep the field free or to absolve all the public servants of all wrong doings which may attract criminal prosecution could not have been CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 458 of 467 the intention of Legislature. More over such an interpretation of law would certainly have an impact on the general administration of law and public good. As was observed in case Shree Bhagwati Steel Rolling Mills (Supra) that such an interpretation would cause great public mischief.
543. More over the new offence of criminal misconduct as has been defined u/s 13 P.C. Act provides an enhanced punishment by stating that such a public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than four years but which may extend to ten years and shall also be liable to fine.
544. However under the old Section 13 the minimum punishment provided was only one year and maximum punishment was upto 7 years only. Thus if a public servant is prosecuted and punished under a new provision for an act or omission committed by him prior to coming into force of the Amendment Act of 2018 then he will be again subjected to a higher degree of punishment and thereby violating his fundamental right under Article 20 (1) Constitution of India. Such an interpretation will also thus lead to an absurd situation and which also could not be the intention of Legislature.
545. It was also submitted that the Legislature while bringing in the Amendment Act of 2018 did not choose to mention anything either under section 30 or under section 31 P.C. Act about applicability of Section 6 General Clauses Act, 1897 or that any action purported to CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 459 of 467 have been done under the repealed provisions shall not be affected or that the same shall be deemed to have been done under new P.C. Act. It was thus submitted that the intention of the Legislature was clear that any action taken or purported to have been taken under the repealed provisions will not hold ground any longer.
546. In this regard the observations made by Hon'ble Supreme Court in the case Gunwantlal Godawat (Supra) are reproduced as under:
"In order to see whether the rights and liabilities under the repealed law have been put an end to by the new enactment, the proper approach is not to enquire if the new enactment has by its new provisions kept alive the rights and liabilities under the repealed law but whether it has taken away those rights and liabilities. The absence of a saving clause in a new enactment preserving the rights and liabilities under the repealed law is neither material nor decisive of the question - see State of Punjab Vs. Mohar Singh AIR 1955 SC 84 and T.S. Baliah V. CIT AIR 1969 SC 701."
547. Thus mere absence of a saving clause qua any action taken or purported to have been taken under the old section 13 (1) (d) P.C. Act is completely immaterial in ascertaining as to whether the rights and liabilities under the repealed law or the legal proceedings instituted and continued under the repealed provision have come to an end or not.
548. For all the aforesaid reasons, I am thus of the considered opinion that Prevention of Corruption (Amendment) Act 2018 does not in any manner affects the continuation of the present legal proceedings against the accused public servants or imposition of any CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 460 of 467 punishment upon them in case of their conviction as was provided under the old section 13 (1) (d) P.C. Act, 1988.
(O) FINAL CONCLUSION
549. Since it has been now concluded beyond shadows of all reasonable doubts that all the six accused persons i.e. A-1 M/s VMPL, A-2 Vikash Patni, A-3 Anand Mallick, A-4 H.C. Gupta, A-5 K.S. Kropha and A-6 K.C. Samria conspired together so as to procure allocation of a captive coal block i.e. Moira-Madhujore coal block in favour of A-1 M/s VMPL and that too for its existing plant at Purulia West Bengal and finally achieved the said object of the criminal conspiracy by undertaking various acts of cheating MOC, Government of India and by various acts constituting the offence of criminal misconduct as defined under P.C. Act, 1988 so I accordingly also hold them guilty of the offences u/s 120-B IPC r/w Section 420 IPC and Section 13 (1) (d) (ii)/13 (1) (d) (iii) P.C. Act, 1988 and convict them thereunder beside also convicting them for the substantive offences as already mentioned in the earlier part of the judgment.
550. In view of the detailed discussion and the conclusions drawn by me here-in-above my final conclusion as regard various offences for which charges were framed against the accused persons may be now summarized as under:
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 461 of 467
CHARGES FRAMED
S. Name of (I) (II)
No accused Charges Common to all Charges Final Decision
separately
framed
1 A-1 M/s (i) 120-B IPC 420 IPC Convicted for the offence
VMPL u/s 120-B IPC; 420 IPC;
(ii) u/s 120-B IPC r/w Sec. 120-B IPC r/w S. 420 IPC
409/420 IPC and Section and section 13(1)(d)
13 (1) (c) and 13 (1) (d) (ii)/13(1)(d)(iii) P.C. Act,
P.C. Act, 1988 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 A-2 Vikash (i) 120-B IPC 420 IPC Convicted for the offence
Patni u/s 120-B IPC; S. 420
(ii) u/s 120-B IPC r/w Sec. IPC; 120-B IPC r/w S. 420
409/420 IPC and Section IPC and section 13(1)(d)
13 (1) (c) and 13 (1) (d) (ii)/13(1)(d)(iii) P.C. Act,
P.C. Act, 1988 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 A-3 Anand (i)120-B IPC 420 IPC Convicted for the offence
Mallick u/s 120-B IPC; S. 420
(ii) u/s 120-B IPC r/w Sec. IPC; 120-B IPC r/w S. 420
409/420 IPC and Section IPC and section 13(1)(d)
13 (1) (c) and 13 (1) (d) (ii)/13(1)(d)(iii) P.C. Act,
P.C. Act, 1988 1988.
Acquitted for the offence
u/s 120-B IPC r/w S. 409
IPC and Section 13 (1) (c)
P.C. Act, 1988
4 A-4 H.C. (i) 120-B IPC (i) Sec. Convicted for the offence
Gupta 409 IPC u/s 120-B IPC; Section
(ii) u/s 120-B IPC r/w Sec. 13(1)(d)(ii) and 13(1)(d)
409/420 IPC and Section (ii) 13 (1) (iii) P.C. Act, 1988; 120B
13 (1) (c) and 13 (1) (d) (c) / 13 r/w 420 IPC and section P.C. Act, 1988 (1) (d) P.C. 13(1)(d)(ii)/13(1)(d)(iii) Act, 1988 P.C. Act, 1988.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 462 of 467
Acquitted for the
offences u/s 409 IPC and
section 13(1)(c) P.C. Act,
1988 and also for the
offence u/s 13 (1) (d) (i)
P.C. Act, 1988
5 A-5 K.S. (i) 120-B IPC 13 (1) (d) Convicted for the offence
Kropha P.C. Act, u/s 120-B IPC; Section
(ii) u/s 120-B IPC r/w Sec. 1988 13(1)(d)(ii) and 13(1)(d)
409/420 IPC and Section (iii) P.C. Act, 1988; 120B
13 (1) (c) and 13 (1) (d) r/w 420 IPC and section
P.C. Act, 1988 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 and also for the
offence u/s 13 (1) (d) (i)
P.C. Act, 1988
6 A-6 K.C. (i) 120-B IPC 13 (1) (d) Convicted for the offence
Samria P.C. Act, u/s 120-B IPC; Section
(ii) u/s 120-B IPC r/w Sec. 1988 13(1)(d)(ii) and 13(1)(d)
409/420 IPC and Section (iii) P.C. Act, 1988; 120B
13 (1) (c) and 13 (1) (d) r/w 420 IPC and section
P.C. Act, 1988 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 and also for the
offence u/s 13 (1) (d) (i)
P.C. Act, 1988
(P) EPILOGUE
551. In view of the extensive discussion of the prosecution case as has been undertaken in the present judgment and especially keeping in view the nature of investigation carried out in the present case, followed by filing of closure report by CBI, I deem it appropriate that a copy of the present judgment be placed before Director, CBI for CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 463 of 467 information. I also intend to express my sincere concern about the nature of investigation being carried out by CBI in various coal block allocation matters and though the conclusions drawn in the final report to be submitted in any matter by CBI entirely depends upon the facts and circumstances of a given case and has to be also as per the decision of the investigating agency taken at its own level and Courts certainly can not interfere in any such conclusion being drawn by the investigating agency, but this court earnestly hopes that in future whatever conclusions are drawn by the CBI in any matter will be duly supported by logical, legal and rationale reasons.
552. I would also like to point out one other disturbing feature which came up before this Court during the course of trial of the present case. In the written submissions filed by Ld. Counsel Sh. Rahul Tyagi for A-5 K.S. Kropha and A-6 K.C. Samria, he also strongly argued that while prosecuting accused public servants, who were officers of Ministry of Coal, certain other public servants who were also members of 36th Screening Committee being the representatives of Administrative Ministries or State Governments were left out. In this regard attention of the Court was drawn to the role of Sh. U.P. Singh the then Joint Secretary, Ministry of Steel who represented Ministry of Steel in 36 th Screening Committee meeting and especially the one held on 03.07.2008. Similarly, reference was also made to the role of DW 5 Bhaskar Khulbe, who was representing State of West Bengal in the Screening Committee meeting held on 03.07.2008. Though, during the course of extensive discussion as CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 464 of 467 has been undertaken in the present judgment, I have already observed that the role of other officers be that of Ministry of Coal or of Ministry of Steel or of any other department may, if required can be considered in some other appropriate proceedings. However, what is being looked into in the present proceedings is the role played by the present three accused officers of Ministry of Coal i.e. A-4 H.C. Gupta, A-5 K.S. Kropha and A-6 K.C. Samria. Moreover, while it can be argued that other persons also ought to have been tried for the various acts of omission and commission undertaken by them but certainly no accused can ever claim that he alone ought not to be prosecuted if any other person is not being prosecuted.
553. Be that as it may, in the written submissions filed by Ld. Counsel Sh. Rahul Tyagi, the following facts have also been mentioned in para 16.3.
"16.3. It may also be pointed out that the Counsel for the accused has recently and reliably learnt that in the case of M/s Ramsarup Loh Udyog, a co-allocattee of present coal block, the Investigating Officers has recommended prosecution of Shri U.P. Singh and regular departmental action (RDA) against Shri Bhaskar Khulbe. Even this information was not shared with this Hon'ble Court when they were summoned as prosecution witnesses by the CBI, which would certainly have a bearing on their credibility and the undue influence CBI has over them as suspects and accused in other cases."
554. Though I am not commenting anything as to the veracity or correctness of the aforesaid averments made by Ld. Counsel for accused public servants since no such record has been placed before me but if there is any iota of truth in the said submissions then CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 465 of 467 the same speaks volumes about the conduct of the officers of CBI in investigating other various coal block allocation matters. The opinion expressed by various officers of CBI or the result being drawn by CBI during the course of investigation of other coal block allocation matters in which no final report has yet been filed before this Court is being shared by them with persons outside the agency. This fact gains material importance and raises eye brows especially when Hon'ble Supreme Court of India in its Order dated 08.05.2013 in the case Manohar Lal Sharma vs The Principle Secretary & Ors in W.P. (C) No. 463 of 2012, passed the following directions [In the said case Hon'ble Supreme Court of India is primarily monitoring the investigation of coal block allocation matters conducted by CBI].
"(3) The Director, CBI shall henceforth ensure that secrecy of the inquires and investigations into allocation of coal blocks is maintained and no access of any nature whatsoever in this regard is provided to any person or authority, including any Minister of the Central Cabinet, Law Officers, Advocate(s) of CBI, Director of Prosecution and officials/officers of the Central Government. We may add that this accords with what learned Attorney General and Mr. U.U. Lalit, learned senior counsel for CBI, have submitted before us having regard to the peculiarities of the case."
555. Thus, it is clear that CBI is even not paying any heed to the specific directions passed by Hon'ble Supreme Court of India in all such matters much less keeping intact the very sanctity of the investigation being carried out by it in various coal block allocation matters. In fact the aforesaid averments in the written submissions filed by Ld. Counsel Sh. Rahul Tyagi for accused public servants tend to throw light as to the conduct of Investigating Agency in CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 466 of 467 investigation of various coal block allocation matters and especially to the circumstances in which closure reports are being filed in a number of coal block allocation matters including the present matter.
556. I am thus not delving any further into the said issue as sufficient food for thought for appropriate remedial measures has been provided to CBI, lest a mockery is made of the Criminal Justice Digitally signed Administration System. BHARAT by BHARAT PARASHAR PARASHAR Date: 2018.11.30 12:09:10 +0530 ANNOUNCED IN THE OPEN COURT (BHARAT PARASHAR) TODAY ON 30.11.2018 SPECIAL JUDGE, (PC ACT) CBI-07, NEW DELHI DISTRICT PATIALA HOUSE COURTS NEW DELHI CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 467 of 467