# GHULAM DIN BUCH ETC. ETC v. STATE OF JAMMU AND KASHMIR

- **Citation:** [1996] 3 S.C.R. 1121
- **Court:** Supreme Court of India
- **Decided:** 1996-04-03
- **Case number:** Criminal Appeal No. 521of1981
- **Bench:** G.N. Ray, B.L. Hansaria
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ghulam-din-buch-etc-etc-v-state-of-jammu-and-kashmir-14013
- **Pages:** 29

## Headnote

B
(Jammu & Kashmi1) Prevention of Comtption Act, 2006 ( 1949 AD) :
Section 5(2).
Conspirac)~Accused causing wrongful loss to Statt~ontract given for C
transportation of 10, 000 bamboo poles against actual need of 4, 70~n per
kilometer per pole basis-Notice inviting tendeJJ specified this number as
about 6,00o-No efforts made to get Govemment vehicles for transportation
of poles-Rates paid to contractors-Unreasonable-Notice inviting
tenders-Issued as per pre-arranged plan to Jinns of co-accused not engaged D
in transportation business-Ultimately their tenders accepted-Held : accused
rightly convicted-Prevention of Comtption Act, 1947, Section 5(2}-Ranbir
Penal Code, Sections 120-B, 109/1161119-l'enal Code, 1860 Sections 120-B,
109/1161119.
Section 5(2) proviso-Se11tence-Mitigating circumstances-Causing E
lvrongful loss to State-Offence conunitted about tlvo decades back-Accused
already suffered in body and mind-Held: it was fit case for invoking proviso
to Section 5(2}-Sentence reduced to Rl for two months-Prevention of
Comtption Act, 1947, Section 5(2) proviso.
Transpottation of bamboo poles-Coll/ract for-Accused effecting cost
analysis-Justifying the higher rates tendered by contractm:1~Rates found
unreasonabl~Matter dealt with in e:rtre1ne huny-No enqHi1y about prevailing rates madi:--Held : accused 1ighlly convicted because of their apparent
coniplicity in reconunending the acceptance of the rate~~
sanie as justified.
characte1ising the
Transpottation of bamboo poles-Between 20 to 30 feet length-Accused allowed tra11spo1tation of poles below 20 feet leitgtlt-No payment
niade for such poles-No financial loss caused to Stat<-'--Held : accused
F
G
committed no offence.
H
1121
"
A
B
1122
SUPREME COURT REPORTS
[1996] 3 S.C.R.
Evidence Act, 1872 :
Section llJ-Non-applicability---Plea of-Oiarge of compirac.1~Ab
sence of-Effect-Close relationship existed between co11tract01:1" who acted in
conceit-Held : absence of charge of conspiracy inter-se between colllractors
not mate1ial.
Code of C!iminal Procedure, 1973 :
Section 313 : Cimunstances coming on record i11 respect of which
accused 1101 exami11ed-Accused 11either asked about his having e11tered illlo
C co11spiracy with anybody-Nor about rates of caniage of poles whether w1reaso11able or high-Held : these circumsta11ces could 11ot be used against the
accused-Fwther these circumsta11ces being crnx of the prosecution case
11011-providing of opportu11ity lo him lo explai11 the same rendered his conviction unsustainable.
D
The appellants were convicted under Section 5(2) of the (Jammu &
Kashmir) Prevention of Corruption Act, 2006 (1949 AD) read with Sections 120-B, 109/116/119 Ranbir Penal Code.
According to the prosecution the appellants were entrusted \\ith the
E work of electrification of tehsils for which a lot of bamboo poles were
required. With the onset of the fruit season all available transport was
diverted to carry fruits and no transport was available for electrification
work. This apart, food grains were required to be stored in the valley and
tehsils to cater to the needs of the people during winter season. This being
high priority area, the concern of the Government was to see that this work
F did not suffer for want of transport vehicles.
The work was to arrange transport vehicles to carry required number of poles to the tehsils before the onset of winter season, after which the
region became virtually inaccessible. This situation permitted the appellants to take advantage of the same and a conspiracy was hatched to give
G contract of transportation to such persons who showed their willingness
to share the booty with the officers. The conspiracy came to the notice of
the Minister as some complaints were received by him regarding giving of
contracts of transportation to private firms on per kilometre per pole
basis and the poles being also of sub-standard quality. The appellants had
H effected cost analysis in extreme hurry and justified ·the rates which were
'
G.D. BU

## Text

_Characters 0–39,909 of 70,497. This is a partial read: ask again with offset=39909 for what follows._

GHULAM DIN BUCH ETC. ETC.
A
v.
STATE OF JAMMU AND KASHMIR
APRIL 3, 1996
[G.N. RAY AND B.L. HANSARIA, JJ.)
B
(Jammu & Kashmi1) Prevention of Comtption Act, 2006 ( 1949 AD) :
Section 5(2).
Conspirac)~Accused causing wrongful loss to Statt~ontract given for C
transportation of 10, 000 bamboo poles against actual need of 4, 70~n per
kilometer per pole basis-Notice inviting tendeJJ specified this number as
about 6,00o-No efforts made to get Govemment vehicles for transportation
of poles-Rates paid to contractors-Unreasonable-Notice inviting
tenders-Issued as per pre-arranged plan to Jinns of co-accused not engaged D
in transportation business-Ultimately their tenders accepted-Held : accused
rightly convicted-Prevention of Comtption Act, 1947, Section 5(2}-Ranbir
Penal Code, Sections 120-B, 109/1161119-l'enal Code, 1860 Sections 120-B,
109/1161119.
Section 5(2) proviso-Se11tence-Mitigating circumstances-Causing E
lvrongful loss to State-Offence conunitted about tlvo decades back-Accused
already suffered in body and mind-Held: it was fit case for invoking proviso
to Section 5(2}-Sentence reduced to Rl for two months-Prevention of
Comtption Act, 1947, Section 5(2) proviso.
Transpottation of bamboo poles-Coll/ract for-Accused effecting cost
analysis-Justifying the higher rates tendered by contractm:1~Rates found
unreasonabl~Matter dealt with in e:rtre1ne huny-No enqHi1y about prevailing rates madi:--Held : accused 1ighlly convicted because of their apparent
coniplicity in reconunending the acceptance of the rate~~
sanie as justified.
characte1ising the
Transpottation of bamboo poles-Between 20 to 30 feet length-Accused allowed tra11spo1tation of poles below 20 feet leitgtlt-No payment
niade for such poles-No financial loss caused to Stat<-'--Held : accused
F
G
committed no offence.
H
1121
"
A
B
1122
SUPREME COURT REPORTS
[1996] 3 S.C.R.
Evidence Act, 1872 :
Section llJ-Non-applicability---Plea of-Oiarge of compirac.1~Ab
sence of-Effect-Close relationship existed between co11tract01:1" who acted in
conceit-Held : absence of charge of conspiracy inter-se between colllractors
not mate1ial.
Code of C!iminal Procedure, 1973 :
Section 313 : Cimunstances coming on record i11 respect of which
accused 1101 exami11ed-Accused 11either asked about his having e11tered illlo
C co11spiracy with anybody-Nor about rates of caniage of poles whether w1reaso11able or high-Held : these circumsta11ces could 11ot be used against the
accused-Fwther these circumsta11ces being crnx of the prosecution case
11011-providing of opportu11ity lo him lo explai11 the same rendered his conviction unsustainable.
D
The appellants were convicted under Section 5(2) of the (Jammu &
Kashmir) Prevention of Corruption Act, 2006 (1949 AD) read with Sections 120-B, 109/116/119 Ranbir Penal Code.
According to the prosecution the appellants were entrusted \\ith the
E work of electrification of tehsils for which a lot of bamboo poles were
required. With the onset of the fruit season all available transport was
diverted to carry fruits and no transport was available for electrification
work. This apart, food grains were required to be stored in the valley and
tehsils to cater to the needs of the people during winter season. This being
high priority area, the concern of the Government was to see that this work
F did not suffer for want of transport vehicles.
The work was to arrange transport vehicles to carry required number of poles to the tehsils before the onset of winter season, after which the
region became virtually inaccessible. This situation permitted the appellants to take advantage of the same and a conspiracy was hatched to give
G contract of transportation to such persons who showed their willingness
to share the booty with the officers. The conspiracy came to the notice of
the Minister as some complaints were received by him regarding giving of
contracts of transportation to private firms on per kilometre per pole
basis and the poles being also of sub-standard quality. The appellants had
H effected cost analysis in extreme hurry and justified ·the rates which were
'
G.D. BUCHv. STATE
1123
found unreasonable without making any further enquiry about prevailing A
rates. Tht:y had made no t!fti:Jrts to get Government vehicles for carriage
..
of poles although trucks were availalile in the Mechanical Division. They
had given the contract for transportation of 10,000 poles as against the
need of about 4,700 poles and wrongly allowed loading and unloading
charges. They had also allowed transportation of poles below the length of B
20 feet. An enc1uiry was ordered into the matter, after completion of which,
a charge-sheet was submitted against the appellants- accused.
On the basis of evidence adduced on behalf of the prosecution, the
trial court came to the conclnsion that the charges levelled against the
appellants-accused were fully established. This finding was upheld by the c
High Court.
In appeal to this Court, on behalf ofthe appellants it was contended
that payment on the basis of per kilometer per pole was not a new device
adopted for the first time, but had been in vogue for a long time; that the
rates were quite reasonable; that in order to implement the electrification D
scheme before the onset of winter season trucks made available by the
contractors had to be engaged as the Road Transport Corporation expressed difficulty in making the same available; that the rates had been
l
fixed after inviting tenders and the lowest tender was accepted; that
Section 10 of the Evidence Act, 1872 was not applicable as there was no
charge of conspiracy against the three contractors; that no motive could E
"be ascribed if 10,000 poles were transported; that the circumstances coming on record were not put to them when they were examined under Section
313 of the Code of Criminal Procedure, 1973 for which reason the circumstances had to be excluded from consideration; that no other data or
material was available in the otlice of the Chief Engineer tiJ make an F
enquiry about the rates; that omission of enquiry did not show any guilty
mind that no payment was made for carriage of poles below the length of
20 feet; and that they had suffered in body and mind and, therefore, a
lenient view should be taken while awarding the sentence.
Disposing of the appeal, this Court
G
~·
HELD : 1.1. The Road Transport Corporation (RTC) functioning in
the State which owns a fleet of vehicles, used to charge on the basis of per
truck, and not per k.m. The private transport carriers also used to charge
the same amount per truck. It was the obligation of the appellants to bring H
1124
SUPREME COURT REPORTS
[1996] 3 S.C.R.
A the poles from to forest the the stocking/dumping site. The payment of
loading and unloading charges resulted in additional burden on the State
Exche<1uer. Although trucks were available in the Mechanical Divisions no
efforts had really been made by the appellants to get the Government
vehicles. Hence the rates agreed to with the contractors. were not
B reasonable. (1131-D-E; 1133-B; 1134-D-F; U33-F]
1.2. Under normal circumstances, giving of contract, following issuance of tender notice, to the lowest tenderer cannot be regarded as
objectionable in any way. In the case at hand, however, issuance of Notice
Inviting Tender (NIT) was as per pre-arranged plan. What ·has made the
C matter worse for the appellants is the acceptance of the tender by the
contractors which, apparently was not a firm engaged in the business of
transport. (1135-D; G-H]
1.3. An understanding had been arrived at between these firms/perD sons and the tender exercise was a camouflage. This conclusion gets
fortified when it is noted that though according to the officials, tenders
had been received from so1ne transport carriers, in fact it was not so. The
lowest amounts tendered were also those about which there had been a
meeting of mind between the tendere1· and appellants. It is unbelievable
that without such an understanding, the contractors would have underE taken the work of transport even before the NIT was issued. They must
have done so, on being told what the lowest rates would be, at least, could
be. Non-transporters were brought in the picture even when firms of
transporters were known to exist and there was no dearth of trucks proved
by the fact that the three contractors could arrange many trucks within a
F
short span only because of some prior understanding with them to share
the extra profits with the officials. And this extra profit was ensured by
allowing carriage per pole per k.m. basis, though the contractors themselves engaged trucks on lumpsum basis. So, everything pieces well; all acted
concertedly to allow wrongful gain to the contractors on the understanding
that the booty would be appropriately shared. (1136-A-B; 1137-C-F]
G
1.4. There is no doubt that the first and second appellants played
}
key role in giving of the contracts and formed the inner circle of the
~
conspiracy. There can also be no doubt that their actions were actuated by
ill motive, and the same was not inspired to get the poles at site to see that
H the electrification scheme gets shape before winter sets in. They got
1
'
G.D .. 'ifUCHv. STATE
1125
transported about 10,0011 poles as against the need of about 4,700. The NIT A
itself had specified this number at 6,000. As the rate at which the poles
were agreed to be carried were unreasonable, there was motive in allowing
carriage of poles beyond what was strictly needed. The greater the number
of poles carried, the higher would be the amount which become payable to
the contractors because of the rate being per pole; and the high profit B
would benefit these appellants also. Thus a case of conspiracy to cause
wrongful loss to the State had been made out against these appellants.
They were rightly found guilty of the charges, which C(Ua them were
commission of offence under Section 5(2) of the (Jammu & Kashmir)
Prevention of Corruption Act, 2006 (1949 AD) and Sections 120B/109/116/119 of the Ranbir Penal Code. [1138-B-F]
C
1.5. It would be too harsh to award even the minimum punishment
at this length of time in view of the hardship already undergone and the
amount which the State had ultimately to lose because of the conspiracy.
As about two decades have passed since the commission of the offence and D
as during the interregnum these appellants had undoubtedly suffered in
body and mind it is a fit case where the proviso to Section 5(2) of the Act
should be invoked, which states that for special reasons recorded in
writing, the court may refrain from imposing a sentence of imprisonment
or impose a sentence of imprisonment of less than one year. Though the
proviso permits not to impose a sentence of imprisonment at all and E
confine the sentence to tine only, the present is not a case where the
punishment to be awarded should be only fine, as any softness in this
regard could produce an undesirable result, namely, encouragement to
adoption of corrupt means by public servants which has indeed to be
checked, and not allowed to be encouraged. Keeping in view all the attend· F
ing circumstances, a sentences of RI for two months would be adequate
sentence, apart from the fine of Rs. 15,000, in respect of appellants in
Criminal Appeal No. 521 and 530 of 1981. {1139·F·H; 1140-A-B]
2.1. Sitting in the office of the Chief Engineer it would not have been
difficult for the third and fourth appellants to find out the rate either of the G
RTC or private carriers. The omission to make these inquiries stares one
at the face and so they were rightly prosecuted and ultimately convicted,
because of their apparent complicity in recommending the acceptance of
the rates, characterising the same as justified. This shows the extreme
hurry in which the matter was dealt with. There was no occasion for hurry H
1126
SUPREME COURT REPORTS
[1996] 3 S.C.R.
A at that stage inasmuch as transport of bamboo poles had almost been
completed and what remained to be done was only the payment. Thus the
appellants in Criminal Appeal Nos. 523 and 526 of 1981 were rightly con·
victed. However, the substantive sentence awarded on them is reduced to
RI for one month as the main culprits were sentenced to imprisonment for
B
two months. But the sentence offine is left unaltered. [1142-E-G; 1143-D-E]
Abdulla Mohammed Paga1kar v. State (Union Tenit01y of Goa,
Daman & Diu ), [1980] 3 SCC 110, held inapplicable.
3. Though the appellants in Criminal Appeal Nos. 522, 528 and 529
C of 1981. had sought to assist the carriers to cause wrongful gain to them
by allowing transportation of poles below 20 feet, ultimately no financial
loss on this count was caused to the State because the carries had not been
paid for poles carried by them which were below 20 feet. Therefore, these
appellants deserve to be acquited. [1144-H; 1145-A)
D
4.1. As to there having been no charge of conspiracy inter-se between
the three contractors, the same is not material because there was close
inter-relationship between the three firms and all of them acted in concert.
The plea of non-applicability of Section 10 of the Evidence Act, 1872,
therefore, fails. [1146-E)
E
Natwar/a/ Sakar/al v. State of Bombay, (1963) Bombay Law Reporter
F
660, referred to.
4.2. The appellant in Criminal Appeal No. 524 of 1981 was not asked,
in any form, about his having entered into conspiracy with anybody. He was
not even asked that the rates at which poles were carried by him were
unreasonable or high. As these allegations/circumstances are the crux of
the prosecution case insofar as he is concerned, the non-providing of opportunity to him to explain the same has rendered his conviction unsus-
, tainable. The circumstances coming on record were, therefore, not put to
this appellant when he was examined under Section 313 of the Code of
G Criminal Procedure, 1973 for which reason the circumstances have to be
excluded from consideration. This appellant is, therefore, acquited.
[1145-D-F-H; 1146-A-B; 1149-E)
4.3. As far as the appellant in Criminal Appeal No. 525 of 1981 is
concerned, a perusal of his examination under Section 313 of Cr.P.C.
H shows that the facts which emerged against him were put to him to enable
1
'
•
•
G.D. BUCHv. STATE [HANSARJA,J.]
1127
him to explain the same. The law, therefore, does not exclude the cir· A
cumstances brought against him. His conviction, therefore, has to be
sustained as there is no doubt about his complicity. In view of the sentence
awarded on the principal accused his sentence is reduced to RI for one
month. [1147-H; 1148-A-B]
Sharad Birdhiclwnd v. State of Maharashtra, [1984] 4 SCC 116, relied B
on.
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
521of1981.
From the Judgment and Order dated 16.4.81 of the .Jammu &
C
Kashmir High Court in Cr!. A No. 3 of 1981.
Sushi! Kumar, P. Wadhwani, Ms. Purnima Bhatt and E.C. Agarwala
for the Appellants.
P.L. Handoo, G.K. Kawoosa and Ashok Mathur for the Respondent. D
The Judgment of the Court was delivered by
HANSARIA, J. The 1975 accord with Sheikh Abdullah saw a dynamic
person from Ladakh coming to the fore. He was made a Minister. He
wanted to do many things for Ladakhis. One of the projects which the E
Minister (Shri Sonam Narboo) wanted to get fructified was electrification
of tehsils of Leh and Kargil. The fund for the same was to be provided by
the Central Government under Rural Electrification Scheme. To see that
the .scheme was implemented within time, a separate Electric Construction
Division was created at Leh. Thif.. was in February 1977. An Executive F
Engineer was put in charge of the Division and he was one N.A. Salaria,
who was selected because of his dashing character which had come to light
by his getting established a generating station at Choglamsar within record
time. The electrification scheme was taken up after Shri Narboo, who was
Minister for Works, Power, Tourism and Ladakh Affairs, had toured the
area from 5.6.1976 to 13.7.1976. The idea was to electrify areas around Leh G
first for which it was fell that 3100 bamboo poles would be required. It was
aho noted that from September onwards the fruit season starts and all
available transport is diverted to carry fruits lo the plane and no transport
is available for La<lakh. This apart, food grains are required to be stored
in Kashmir valley and Ladakh to cater to the needs of the people during H
1128
SUPREME COURT REPORTS
(1996] 3 S.C.R.
A winter season. This being high priority area, the concern of the Government is to see that this work does not suffer for want of transport vehicles.
B
c
2. It is in the aforesaid situation and scenario that Salaria took up
work in right earnest from first week of September 1977, after the Chief
Engineer, Electric Maintenance and RE, Kashmir had toured the two
tehsils from 17th to 23rd August, 1977. The work was to arrange transport
vehicles to carry required number of poles to Leh before November, after
which Ladakh region becomes virtually inaccessible. The allegation is that
the situation permitted persons in the Power Department to take advantage
of the same and a conspiracy was hatched to give contract of transportation
to such persons who showed their willingness to share the booty with the
officers. According to the prosecution, these persons included even the
highest officer of the Power Department, namely, Power Development
Commissioner and it went down to the Sectional Officer. The conspiracy
D came to the notice of none else than Shri Narboo as some complaints were
received by him in November, 1977 regarding giving of contract of
transportation to private firms on per kilometre per pole basis and the
poles being also of sub-standard quality. He wanted information about the
same by writing a D.O. letter to the Power Development Commissioner on
E
18.11.1977 followed by a reminder on 5.12.1977. After receipt of reply, the
Minister asked for a report from the Chief Engineer. On receipt of the
same, he felt the matter required deeper probe and appointed Qazi Mohd.
Afzal as Enquiry Officer in December, 1977. His report was submitted on
3.4.1978 which highlighted some serious irregularities. After considering
the report, the Government entrusted the matter for further probe to the
F
Anti-Corruption ()rganisation set up under the (Jan1n1u & Kashn1ir)
Prevention of Corruption Act, 2006, (hereinafter the Act). A case was
accordingly rei,~stcrcd on 26.4.1978 and a Senior Superintendent of Police,
one Shri S.S. Ali, was entrusted with the investigation, who after completion
of the same and after obtaining sanction from the Government, submitted
charge-sheet. on 10.8.1978 against 42 accused.
G
3. In the trial which commenced, after discharge of one {a labourer),
65 witnesses were examined by the prosecution and 2 by the defence. Great
number of documents were also exhibited. The trial court by its very
exhaustive judgment dated 29.9.1981, which runs into 420 pages, acquitted
H 11 persons including Power Development Commissioner, Shri Ahangar
1
'
G.D. BUCHv. STATE [HANSARIA,.l.)
1129
and Chief Enb~neer, Shri Naqash; and convicted 30 under various sections A
oi' law including section 120-B Ranbir Penal Code and section 5(2) of the
....
Act.
4. On appeal being preferred, the High Court of .Jammu & Kashmir
acquitted 19 more including Superintending Engineer Shri Kaul and sustained conviction of 11 persons who are the appellants in the 10 appeals B
at hand. Of them, 7 are officials and 4 are contractors. The officials are :
(1) Executive Engineer, N.A. Salaria; (2) Assistant Engineer, G.D. Buch;
(3-4) two employees of the Chief Engineer's office - T.K. Kantroo and
V.K. Razdan; (5-7) three officers who had passed the poles-they being H.L.
Dhar, Farooq Ahmed Zadoo and Mohd. Siddiq. The four contractors are; C
(1) Hafeezullah, (2) Farooq Ahmed Qurashi, (3) Abdul Rashid Khan and
( 4) Peer Gulam Nabi.
5. The appeals being by the convicted persons and there being no
appeal against acquittals either by the trial court or the High Court, it is D
apparent that we have to see whether the persons ultima.tely convicted by
the High Court had been rightly found guilty of the charges, inter alia, of
conspiracy. We have mentioned about this aspect at the threshold because
the principal charge being of conspiracy and that too involving highest
officer of the Power Department, and he having been acquitted even by
the trial court along with the Chief Engineer, followed by acquittal of E
Superintending Engineer by the High Court, we shall have to see whether
the links which have been left in the chain of conspiracy do leave a thread
to piece together the actions of the convicted appellants so as to establish
a conspiracy by them.
6. Many of the learned counsel appearing for the appellants made a
grievance that the State has allowed higher ups to remain unavailable to
F
this Court and has thought it fit to press the case against small fry.
According to them if there was a conspiracy at all, the same could not have
been worked out without the connivance of at least the Chief Engineer and
Superintending Engineer. Shri Handon, appearing for the State, felt some G
what uncomfortable at the non-filing of the appeals by the State, first in
the High Court and then in this Court again.st the acquittals of higher-ups.
But then, no appeal having been filed, the ultimate submission was that the
core of the conspiracy had not been adversely by the acquittals and the evil
design resulting in causing wrongful loss to the State Exchequer by causing H
1130
SUPREME COURT REPORTS
[1996] 3 S.C.R.
A wrongful gain to the contractors and themselves has to be punished.
B
Differently put, the submission was that the inner circle of the two concentric circles has not been damaged because of the outer circle. getting
wiped out. According to Shri Handoo, therefore, the acquittals of the
higher-ups cannot per se see the acquittals of the appellants.
7. To appreciate the aforesaid submission, we have basically to note
the key role assigned to appellant Salaria who, according to the prosecution, was duly supported by appellant Buch. These two according to Shri
Handoo were the main actors in the drama, which was enacted about two
decades back in an area which had not seen a conspiracy of the type at
C hand causing loss of lacs to the State Exchequer, which had drawn attention even of the State Cabinet.
8. Loss of lacs (the total loss to the State Exchequer having been
estimated at Rs. 1, 62, 117, 89) was undoubtedly of great concern two
D decades earlier and we can appreciate the great consternation this case
had caused in the State requiring appointment of a senior Session Judge
to constitute the Special Court under the Act to try the case. The heroic
effort made by the prosecution to bring home the guilt also speaks for itself.
The lapse of time, therefore,. cannot be allowed to come to the aid up the
appellants, as has been one of the submissions on behalf of the appellants,
E based on the fact of long suffering already undergone. We would, therefore, examine the materials on record objectively without being influenced
by the hardship undergone, which could be taken note of, if need would
arise, while dealing with the question of sentence. May it be stated that we
would undertake this exercise as we are satisfied about the core of conF
spiracy, referred to by Shri Handoo as inner circle of the conspiracy, having
remained unaffected despite aforesaid acquittals, as would appear form
what is being stated later.
9. The first and foremost question which needs to be looked into is
whether the acts attributed to the appellants were at all meant to cause
G
wrongful loss to the State by the alleged conspiracy. Almost all the learned
counsel appearing for the appellants were at pains to convince us that the
arrangement which was made with the contractors to carry poles was not
at all aimed to cause any wrongful gain to them inasmuch as payment on
the basis of per kilometer per pole was not a new device adopted in 1977
H for the first time, but that had been in vogue al least since 1971. This apart,
..
•
G.D. BVCHv. STATE[HANSARIA,J.]
1131
the rates which were agreed upon was also quite reasonable. The same was A
30 or 35 paise per k.m. per pole depending upon the size, which is in the
close neighbourhood of what had been paid even in 1976 for carrying poles
to Leh ;tself by the arrangement finalised by Shri Bassu, who was the
immediate predecessor of Salaria. Shri Harn.loo seriously contested this
claim and urged that per k.m. basis had been adopted for the first time in B
1977 for long haulage; in earlier years this was being accepted for carrying
materials to short distances. As to the reasonableness of rates, the State's
case is that the amount agreed to be paid was almost three times of what
was being paid earlier.
10. We would, therefore, first examine the aforesaid crucial question. C ·
We would then see whether the giving of contract at the lowest tendered
rate made any difference.
Reasonableness of the contractual rates.
11. There is no dispute before us that .the Road Transport Corporation (RTC) functioning in the State of Jammu & Kashmir, which owns a
fleet of vehicles, used to charge on the basis of per truck, and not per k.m.
This rate was Rs. 1400 in the relevant year. The private transport carriers
D
aho used to charge the same amount per truck. But then, the number of
poles to be carried by these trucks to a place like Leh used to be around E
25. This made a difference, according to the learned counsel for the
appellants, as the number of poles carried by the trucks which had been
engaged by the contractors at hand used to be even 70. Shri Handoo
contended that though the. number of poles carried were more, the same
did not really matter inasmuch as total cft. (cubic feet) transported was not
F
in any significant manner more than carried by the trucks of RTC of private
transport owners because each of those trucks used to carry about 280 cft.
whereas from Statement No. 2 filed by Shri Thakur it would appear that
the cft carried in the present case ranged between 200 to 300, though in
some cases it went upto 400 also. As to the contention that the rates of
carriage per pole came to 30.49 paise insofar as the transportation done G
by Shri Bassu is concerned, Shri Handoo's submission was that this calculation as put on record on behalf of the appellants is wrong. As per his
contention the per pole rate then was 9.36 paise as mentioned in the
Charge-Sheet filed in the case, a copy of which is from pages 1 to 86 of
Volume 1 o' the Paper Book prepared by the appellants. This figure has H
1132
SUPREME COURT REPORTS
[1996] 3 S.C.R.
A been mentioned at page 72 of this Volume.
B
12. As to the calculation furnished on behalf of the appellants the
same being that the rate was Rs. 30.49 per pole if what was paid for the
carriage to Leh in 1976 during the incumbency of Shri Bassu - we would
observe that calculation has been arrived at by showing, inter alia, that the
charge of loading and unloading per pole at Rs. 52. When Shri Thakur was
questioned on this, the learned counsel had referred us to the evidence of
the Investigating Officer (1.0.) finding place at page 230A of Volume IV.
A reference to that statement showed that the unloading charge came to
Rs. 18 per pole and the loading charge to Rs. 7.80. Thus the total came to
C about Rs. 26 from stocking site to the truck. The learned counsel contended that this figure had to be doubled because the same amount used
to be incurred of bringing poles at the stocking site from the forest. The
1.0. had not said anything about this on his own, nor was he asked any
such question in cross-examination. However, to convince us that the figure
of Rs. 26 is required to be doubled, in the written submissions filed on
D 21st/27th March, the learned counsel appearing for the appellants quoted
the following evidence of PW 24 Bassu :
E
F
"Expenses for loading and unloading as well as the manual
carriage from loading site and unloading site. For manual carriage
of the poles we have to pay extra. By referring to the manual
charges I mean the lifting of poles by manual labourers from Depo
site to the truck and also their removal after unloading to the stock
site.
QI When you took these poles for installation from Choglamsar
you again had to incur expenses for manual carriage, loading and
unloading of poles ?
NYes.
1
'
12-A From the above quoted evidence of PW 24, it is not known
G how much had been paid during his incumbency as total loading and
unloading charges. It is not known which instances the 1.0. had in mind
when he had stated about loading and unloading charges. It deserves to be
pointed out that the poles which had been carried in 1977 had basically
been supplied by Mustaq & Company and it was the obligation of this firm,
H as per Shri Handoo, to bring the poles from the forest to the stock-
•
G.D. BUCHv. STATE [HANSARIA,.l.J
1133
ing/dumping site. What is more important is that the decision which was A
taken in the joint meeting held on 11.5.77 was that the poles would be
carried from Kangan and Sonmarg vide page 22 of Vol. III. Mention has
been made about this in para 69 of the charge-sheet also, which is at pages
1-86 of Volume I. But for some inexplicable reason, the stocking/dumping
site was changed and poles were carried from Waltab which resulted in B
additional burden on the State exchequer. Shri Handoo made a serious
grievance about this change of site.
13. For the aforesaid reasons, we do not accept the contention of the
appellants that loading and unloading charges when poles were carried
during the incumbency of Shri Bassu came to Rs. 52. Therefore, we would C
not agree that the rate of carriage per pole in 1976 was Rs. 30.49. So, we
accept the prosecution case that the rates agreed to in the present case
were not reasonable. This is almost writ large on the face as the carrying
charge per pole came to Rs. 144.60. This has come out clearly in the Office
Note, which starts at page 12 of Volume IX. (This figure has been men- · D
tioned at page 13). In this context, it would be apposite to refer to what
has been stated in the impugned judgment of the High Court at page 158
of the volume containing this judgment. It has been mentioned therein that
the payment made to the contractors showed that the same per truck
worked out to Rs. 10, 561, 66, whereas the rates of the RTC would have
been Rs. 1993.57. The same would have been even less (Rs. 1839.57) if E
trucks of private carrier would have been engaged.
14. Being satisfied that the rates agreed to with the contractors were
not reasonable, let it be seen whether the higher was payment wa.'
motivated or was agreed upon to take of the exigency of the situation. Shri F
Thakur strenuously urged that implementation of the rural electrification
scheme within the time spelt out by the Minister was the need of the hour,
for which purpose a dashing character like that" of Salaria was brought to
the scene. The concerned persons were duty bound to do all that could
reasonably be done to carry poles to Leh before the onset of winter season
which cuts off Ladakh from the Valley for a long period The fruit growing G
season being round the corner and the need for storing food for the winter
being the prime concern of the Government, the concerned officers had to
implement the scheme before the onset of winter and had on alternative
but to engage trucks made available by the contractors as the RTC had
expressed difficulty in making the trucks available. To satisfy us that there H
<
...... •
,
1134
SUPREME COURT REPORTS
(1996J 3 S.C.R.
A was no evil design in giving _the contract of carriage to non-transport firms,
it was also urged that the rates had been fixed after tenders had been
invited and the lowest tender was accepted.
B
15. Shri Handoo would not like us to accept the aforesaid statements
because, according to him, large number of Government trucks could be
used for the purpose if proper approach would have been made. In this
connection, he referred us to the communication from the <ifftce of the
Transport Commissioner to the Investigating Officer (1.0.) dated 24.5.78,
which is at pages 269 to 270A of Volume VII. It has been mentioned
therein that the State had about 4,000 trucks operating on J & K roads
C only and about 400 to 800 trucks used to lie idle everyday. This letter
further informed the 1.0. that no officer of the Electric Department had
approached the office of the Transport Commissioner for arranging trucks
for the carriage of poles. The further statement was that the Minister for
Ladakh had personally contacted the writer on 5th November, 1977 stating
D about the urgent need of transporting four lac litres of High Speed Diesel
to Leh and despite shortage of time they were able to complete the massive
operation within three weeks. We have also been referred by Shri Handoo
to the evidence of PW 29, Shri SD Shangllo, Executive Engineer, Mechanical Division, Srinagar, which is at page 48-49 of Volume IV that their
Department was having 39 trucks in its fleet and they had received no
E requisition from REC Leh for carriage of poles.
16. The aforesaid· does show that no efforts had really been made by
the concerned officers to get the Government vehicles. Shri Thakur and
Shri Jain, however, urged that before floating of tender, RTC officials had
F
been personally contacted by Salaria and on being staled that trucks could
not be made available "at the present time", the exigency of situation left
no alternative but to invite tenders. This information to Salaria was in the
doc>'.lnent which is at page 256 of Volume VII. The catch, however, is that
wheti the signatory of this letter, Sardar Jai Singh, appeared the witness
box as PW 2 he deposed that on his being approached by Salaria on 15th
G September, 1977 what he had really told was that there was no objection
to supply of trucks but due to earlier commitments with other departments
trucks could not be supplied for "2 to 3 days". Salaria however did not come
subsequently asking for trucks and so no trucks got supplied by the RTC.
Shri Thakur contended that this gloss put by Jai Singh does not merit
H a?ceptance, as, if that was what was really told to Salaria, the same should
\
--
'
G.D. BUCH v. STA TE [HAN SAR IA, J.)
1135
have found place in the aforesaid communication; In this context we were A
taken through the various questions which were asked to Jai Singh on this
aspect and which find place from pages 50 to 55 of Volume III. If the
evidence of J ai Singh alone would have been on record, we could have
perhaps agreed to what was submitted by the learned counsel for the
appellants in this regard; but having noted what had been stated by the B
Transport Commissioner in the afore-noted letter and what !tad been the
evidence of the Executive Engineer, Mechanical Division, we are of the
view μiat Notice Inviting Tender (NIT) came to be issued as pre-arranged,
to which aspect of the matter we shall advert now. .
,,,
Issuance of NIT and subsequent happenings.
17. Under normal circumstances, giving of contract, following issuance of tender notice, to the. lowest tenderer cannot be_ regarded as
objectionable in any way. In tbe case at hand, however, issuance of NIT
c
was as per pre-arranged plan, as already mentioned. We have said so D
because the same came to be issued, not in the wake of denial, even if there
was any, by the RTC official to make their vehicles available. That tenders
would be invited had been stated even by 8.9.77 by Buch to appellants
Hafeezullah and Qurashi. The letter of Buch of 8th September addressed
to Salaria, which is at pages 50 and 51 of Volume X, mentioned that the E
former had negotiated with M/s. Arfa Electrical Company (which is the
naine of the concern· of appellant HafIZUllah) and M/s. Farooq Ahmed
Qurashi and they had accepted to carry poles from Srinagar Valley to
Kargil and Leh on the condition that the rates of carriage charges could
be those which would be found lowest after floating tender. Buch further F
stated in the letter the the firms had been advised to start the carriage of
poles : of course, the charges to be paid would be known after receipt of
tender to be floated in this regard. There is thus nothing to doubt that a
decision had been taken with the consent of Salaria to float tenders even
by 8th September. The contact with the RTC official at Srinagar was on
15th and the obtaining of the aforesaid letter from Jai Singh may, therefore, G
just be a ruse for issuance of the NIT. What has made the matter worse
· · for the appellants is that a copy of NIT was sent even to M/s. Khan Electric
and General Stores, the firm of appellants Abdul Rashid Khan and Peer
Gulam Nabi, whose tender was ultimately accepted, which, apparently was
not a firm engaged in the business of transport.
H
1136
. SUPREMECOURTREPORTS
(1996) 3 S.C.R.
A
18. Shri Handoo, therefore, rightly submitted that an understanding
h_ad been arrived at between these firms/persons and the tender exercise
was a camouflage. This conclusion gets fortified when it is noted that
though according to the officials, tenders had been received from some
transport carriers, to wit, Sopore Transport Workers' Union, in fact it was
B not so. This has transpired from the evidence of PWs 21 and 22, who were
the Manager and President respectively of the Sopore Transport Workers'
Union. Both of them stated that their Society had not submitted any tender
and the one which was said to have been filed in its name had really not
emanated from their office. Even the seal put in the tender was not theirs
C and the tender had not been signed by any authorised person. Sbri Thakur
urged that tender might have been signed by the Accountant, who was in
employment at Srinagar Branch, as admitted by PW 22 in his crossexamination. Sbri Handoo replied that PW 22 had stated that the Accountant was not authorised to submit quotations. We are inclined to think that
similar must have been the position qua some other transporters who bad
D purportedly submitted tenders. Shri Handoo further contended that the
NIT had been issued to selected persons as would appear from the
evidence of PW 19 (at page 220 of Volume II) to the effect that his firm
bad not received any tender notice. The firm of this witness, named
Diamond. Motors, was a leading transporter of Srinagar as about 100 trucks
E were attached to his firm.
'
F
G
H
\
19. At this stage we may indicate that the frrms styled as Arfa
Electrical Company and Khan Electrical and General Stores are closely
knit, as would appear from the evidence of DW 1 Farooq Uddin, who
stat~d about his being a partner in the firm of Arfa Electrical Company, .
alongwith Hafeezullah. Though he stated in the examination-in-chief that
his frrm bad nothing to do with the firm of Khan Electric and General
Stores, from the statements made by him in cross-examination it appeared
that Ar fa Electrical Company was not rtinning a ,shop and that firm had.
no hCadquarter. He further stated that Hafeezullah used to run his father~s
shop named Khan Electric and General Stores ·and correspondence for
Arfa Electrical used to be from the shop of Khan Electric. He further
admitted that Afra Electrical had no registration with ·the Sales Tax
Department Even the bill-head of Khan Electric and General Stores was
used by Arfa Electrical after erasing the name of the former and overwrit-
·~.
{
I -
G.D. BUCHv. STATE [HANSARIA,J.]
1137
ing name of the latter. These statements do show the inter relationship and A
closeness of Arfa Electrical Company and Khan Electric and General
Stores.
20. The above is not all inasmuch as there is material on r\cord to
show that Qurashi is related to Hafcezullah being a son of his father's B
brother-in-law.