Syed Matloob Hashmi vs State of Jharkhand

Harish Chandra Mishra, J—Both these applications arise out of the same case and as such they are being disposed of by this common order. Heard learned counsels for the petitioners and learned counsel for the State Vigilance.

The petitioners have been made accused in connection with Special Case No. 66 of 2010, corresponding to Vigilance P.S. Case No. 49 of 2010, for the offence under Sections 420, 120-B, 467, 468, 471, 109, 409, 406 of the Indian Penal Code and Sections 13(2) and 13(1)(d) of the Prevention of Corruption Act.

The case relates to the alleged irregularities committed in the purchases of the materials and procuring the infrastructure for organising the 34th National Games in the State of Jharkhand, which were held in the year 2011. It may be stated that the National Games were originally scheduled to be organised in the year 2005 itself, but due to various reasons they were postponed from time to time and ultimately held in the year 2011.

The petitioner Syed Matloob Hashmi was the Organising Secretary No. 1 and the petitioner Prakash Chandra Mishra was the Director of the National Games Organising Committee (N.G.O.C). After investigation of the case the Vigilance has submitted the charge-sheet. The memo of evidence containing the findings against the petitioners have been brought on record by the Vigilance, by way of Annexures to the counter-affidavits filed in these cases. The memo of evidence against the petitioners show that they have been roped in by the Vigilance on the allegation of committing financial irregularities in organising the National Games in the State of Jharkhand and it is alleged that due to such financial irregularities, the State Exchequer had been put to the wrongful loss of Rs. 28,38,09,000/-. The breakup of different heads in which the alleged irregularities were committed, have been given in the memo of evidence, from which it is apparent that there is allegation against the petitioners that the expenses were made without inviting the proper tender and the orders were not placed with the lowest bidders, rather they were placed with the higher bidders, due to which unduly high amounts had to be paid to the suppliers/service providers. There are so many items mentioned in the memo of evidence, in which the alleged financial irregularities were committed, which need not be detailed in this order, but suffice would be to mention that the allegations relate mainly to not placing the orders to the lowest bidders, rather they were placed with the higher bidders, violating the established financial procedures, due to which unduly high amounts were paid to the suppliers/service providers.

By way of illustration, the Squash Court was got constructed through one M/s. Zyrex Enterprises at the cost of Rs. 1,44,32,850/-, to whom the payment of Rs. 50,00,000/- was made. It is alleged that the said construction has been made without inviting the tender, which is an illustration of serious financial irregularity. Similar allegations are there with regard to the expenses made for house-keeping and the other allied activities, purchase of the medical equipments as also the sport materials etc. It is alleged that during the National Games held in the State of Assam, the ambulances were purchased at the rate of Rs. 23,36,300/- and for the National Games at Jharkhand the same company had given the quotation for Rs. 25,53,450/-, but the ambulances were actually purchased at the rate of Rs. 41,91,724/-. However, it has not been alleged that the services provided or the materials supplied were either sub-standard or they were not worth the price, and the sports materials were not of the standard of Olympic Games. In the case of purchase of volleyballs there appears to be the allegation of supply of below standard materials, but it is the case of the petitioners that no payment was made for such supply, which fact was not denied by the learned counsel for the Vigilance.

Learned counsels for the petitioners have submitted that the petitioners have been falsely implicated in this case and the National Games were organised under the guidelines of the Indian Olympic Association under whose guidelines, the National Games Organising Committee was constituted, which was headed by the Chief Minister of the State of Jharkhand. The specific case of the petitioners is that whatever purchases were made and orders were placed, they were made upon the approval of the Executive Board of the National Games Organising Committee and accordingly, the petitioners were bound to follow those decisions. Learned counsels submitted that the National Games in the State of Jharkhand were organised very successfully and it was widely acclaimed by one and all, and in such events one cannot be expected to strictly adhere to the normal financial rules, as the time was running out for organising the games and the prestige of the State was at stake. It is further submitted that there was nothing wrong in not placing the orders to the lowest bidders, as there may be difference of standard in the services/quality of materials provided by the lowest bidder and the higher bidder. It is submitted that all the expenses were done under the guidelines of the Executive Board of the National Games Organising Committee, keeping in view the time constraint and the prestige of the State. Learned counsels have also pointed out that there is only one company in the country, having the expertise of constructing the squash court and the order was placed to it. It is also submitted that though the charge-sheet has been submitted by the Vigilance, but even the cognizance has not yet been taken in the case and both these petitioners are in custody since 14.10.2014 itself. Learned counsels have accordingly, prayed for bail.

Learned counsel for the State Vigilance on the other hand has opposed the prayer and has submitted that this is a case of blatant violation of the financial rules by the petitioners, being the Director and the Organising Secretary of the National Games Organising Committee. Learned counsel has taken this Court to the allegations against the petitioners in detail, which as stated earlier, are mainly that the orders were placed not to the lowest bidders but with the higher bidders putting the State Exchequer to the wrongful loss of Rs. 28,38,09,000/-. Learned counsel has also pointed out as regards petitioner Syed Matloob Hashmi that he had provided a list of the sports items to be purchased, specifying their brands, stating that it was supplied by the President of the Indian Olympic Association, but there was nothing therein to show that it was provided by the Indian Olympic Association. Similarly, as regards the petitioner Prakash Chandra Mishra, it is pointed out that after he handed over the charge of his post, he was found to have visit the office and it is alleged that several documents/files were found to be missing thereafter. It is also submitted by the learned counsel for the Vigilance that accounts were got audited by the Office of the Principal Accountant General, Jharkhand, Ranchi, which has also supported these allegations. Making these submissions learned counsel for the Vigilance has opposed the prayer for bail, submitting that the petitioners were responsible for putting the State Exchequer to the wrongful loss of Rs. 28,38,09,000/-.

Having heard learned counsels for both the sides, I find that though there is allegation of putting the State Exchequer to the wrongful loss of Rs. 28,38,09,000/- due to the alleged financial irregularities committed by the petitioners, but the petitioners'' case is that whatever expenses were made, they were made only upon the approval of the Executive Board of the National Games Organising Committee, constituted under the guidelines of the Indian Olympic Association. I also find from the allegations levelled against the petitioners that though there is allegation of placing the orders with the higher bidders ignoring the lowest bidder, but in most of the cases there is no finding by the vigilance that the materials supplied or the services provided were not worth the price paid.

In my considered view, in organising the National Games, the prestige of the State was at stake and the time was also running out, and in such situation there may be valid reasons for not strictly adhering to the financial norms, for which the petitioners alone cannot be held responsible, as the decisions were taken by the Executive Board of the National Games Organising Committee. The quality of the materials purchased or the quality of the services provided had to be given paramount consideration in such events and one cannot expect that the orders shall be placed to the lowest bidders only. In order to make out the criminal offence, there has to be the finding that the quality of the materials/services of the lowest bidders were exactly the same, which were procured by paying the higher price, which finding, is not there in most of the cases discussed in the memo of evidence. Though in some cases it was found, such as in the case of supply of volleyballs that they were duplicate and substandard, but the case of the petitioners is that no payment was made to the supplier, and there is no denial to this fact. Similarly, in the matter of construction of squash courts perhaps the company to which the order was placed, was the only right choice, being perhaps the only company having the required expertise. Similarly, though it is alleged that the ambulances were purchased at almost double the price than they were purchased in the National Games held in Assam, but there is nothing in the record to show that the ambulances purchased in the National Games in Jharkhand were having the same medical and other facilities, as in those purchased during the National Games held at Assam, or they were actually of the higher standard or not. It is not the case of the State Vigilance that the materials purchased paying high prices, were not worth the price paid for them, or that the sports items purchased were below the standard of Olympic games. Last but not the least, there may be allegation of not strictly following the financial rules, but there is no allegation against the petitioners that there was any personal wrongful gain to them in the entire transaction. This apart, the investigation of the case is complete and the charge-sheet has already been submitted, but the cognizance has not yet been taken against the petitioners.

In the facts and circumstances of this case, and taking into consideration the period of custody of the petitioners, I am inclined to release the petitioners on bail. Accordingly, the petitioners, Syed Matloob Hashmi & Prakash Chandra Mishra, are directed to be released on bail, on furnishing bail bonds of Rs. 50,000/- (Rupees fifty thousand) each with two sureties of the like amount each to the satisfaction of learned Special Judge Vigilance, Ranchi, in connection with, Special Case No. 66 of 2010, corresponding to Vigilance P.S. Case No. 49 of 2010.

As the charge-sheet has already been submitted in the case, both the petitioners are directed to keep themselves aloof from the charge-sheet witnesses during the pendency of the trial and if it is found that the petitioners have tried to influence any witnesses in any manner whatsoever, the Vigilance shall be free to file the application for cancellation of their bail, which shall be duly considered in accordance with law by the Court below.

It is further directed that the petitioners shall not leave the country without the permission of the Trial Court and they shall surrender their passport, if any, before the Court below, which shall be kept in the safe custody of the Court below, during the pendency of the trial. If the petitioners are not having any passport, they shall file an affidavit to that effect in the Court below. Both these applications are allowed with the directions as above.