HC quashes FIR of VOK regarding purchase of sub-standard drugs kot

08/05/2018

Jammu, May 7: In a petition filed by Dr. Saleem Ur Rehman sekeing quashment of FIR No.32/2012 registered at Police Station, Vigilance Organization, Kashmir (VOK), on the 16th day of November, 2012, for the commission of offences punishable under Sections 5(1) (2), 5(2) Prevention of Corruption Act, Svt., 2006 and 120-B of the Ranbir Penal Code (RPC). Justice Ali Mohammad Magrey of J&K High Court after hearing both the sides quashed the FIR.
While quashing FIR, Justice Ali Mohammad Magrey observed that the petitioner who joined the office (01.04.2011) when the entire tendering process as well as the contract was complete cannot by any stretch of imagination or any amplified interpretation of Criminal Statutes be held liable in absence of the main conspirators. Dropping of the main conspirators from the ambit of conspiracy and the legal embargo placed on vicarious liability disintegrate the fabric of criminal conspiracy. Therefore, the allegations made in the FIR, even if accepted to be true in its entirety, are legally not tenable, apart from the legal repercussions of the actions of respondents, the purchase in question appears to be materialized after inviting tenders from CPSE's upon the instructions issued by Mission Director vide letter dated 12.03.2011 which is on record. It is urged that there was no occasion to conduct post tendering negotiations in context to the Circular of State Vigilance Commission, taken on record through rejoinder affidavit filed by the petitioner. Bidding of uniform rates by CPSEs (Central Public Sector Undertakings) does not seem unusual in reference to letter of Ministry of Chemicals & Fert. Department, Government of India dated 23rd Feb 2007 pertaining to purchases from CPSEs under the Preference Purchase Policy adopted by the Government. The price index of previous year, i.e., 2011 loses significance on account of black listing of supplier for sub standard supplies which becomes discernible from the letter dated 03.03.2010 of Controller of Stores, Jammu, accompanying the rejoinder affidavit. These documents have not been controverted by the Learned Counsel for respondents. Mere omission to bargain after tendering as asserted by the respondents does not by itself attach criminality especially when prefaced with the guidelines to the contrary.
Court further observed that another aspect which cannot be ignored is that there is no departmental enquiry or report to suggest misappropriation of amount entrusted with the petitioner or any expert finding to hold the spuriousness of drugs as asserted in the reply of respondents. Moreover, no official from NRHM is bracketed as accused in the list exhibited in letter dated 21.7.2015 of Vigilance Organization to snap their collaboration with the petitioner in the perpetration of alleged offence which further erodes the element of conspiracy otherwise put forth in the FIR. No investigative material has been brought on record by the respondents to suggest the pecuniary gain derived by the petitioner while misusing his official position or diversion of funds beyond contracted rates.
Court further observed that the counsel for the petitioner has not laid stress on the overlapping of FIRs and the distinction urged about the irregularity while drawing a distinction between the tenor of FIR under Section 154 and 157 Cr.P.C. Therefore, this Court will not go into scrutiny of such question. The petitioner has also questioned the conduct of respondent no. 5 during the course of investigation. This Court cannot go into such disputed actual aspects, but the petitioner is left with liberty to invoke appropriate remedy.
The facts leading to the filing of the instant petition, briefly and as stated by the petitioner in this petition, are that under the framework of the National Rural Health Mission (NRHM), the drug kits were required to be purchased from the Central Public Sector Enterprises (CPSEs) and their subsidiaries, as per the Purchase Preference Policy (PPP) of the Government of India and as directed by the Mission Director, NRHM, Jammu & Kashmir, vide letter dated 28th of December, 2010. Before approaching the Central Public Sector Enterprises (CPSEs), the petitioner took up the matter with the approved State Purchase Committees vide communication dated 27th of January, 2011, with regard to the approval of the rate contract. In pursuance to the said communication, the Purchase Committee No.1 assented to effect the purchase in accordance with the rules, however, the Purchase Committee No.2 did not respond, which was intimated to the Mission Director, NRHM, vide letter dated 7th of February, 2011. The Mission Director, vide communication dated 12th of March, 2011, directed immediate procurement of the drug kits. Subsequently, a Committee of four members was constituted on the 12th of March, 2011, and tender notices were published in national Dailies, inviting bids by or before the 22nd of March, 2011. The department, as stated, received four tenders quoting equal rates for the items and, as per the Resolution of the Board of Members, it was unanimously recommended to purchase the drug kits from all the four CPSEs on equal share basis and the payment to the respective CPSEs was made through e-banking/ account payee cheques. On 16th of November, 2012, FIR No. 32/2012 came to be registered at Police Station, Vigilance Organization Kashmir (VOK), for the commission of offences punishable under Sections 5(1) (2), 5(2) of the Prevention of Corruption Act, Svt., 2006 and Section 120(B) of the Ranbir Penal Code (R.P.C.), with regard to the transaction of purchase of drug kits under the National Rural Health Mission Scheme, by the Directorate of Health Services, Kashmir, for the year 2010-2011. The FIR is registered against the petitioner, the then Director Health Services, Members of the tender Opening Committee, officers/ official of NRHM, Members of the Verifying Committee, and Suppliers. The petitioner, in the capacity of the then Director, Health Services, Kashmir, has been implicated in the case and served with the questionnaire dated 6th of April, 2015, which stands replied by the petitioner vide explanation dated 29th of April, 2015.
The FIR, impugned in this petition, is registered with regard to the transaction of purchase of drug kits under National Rural Health Mission Scheme, by the Directorate of Health Services, Kashmir, for the year 2011-2011, against the petitioner, the then Director Health Services, Members of the tender opening Committee, officers/ officials of the NRHM, Members of the Verifying Committee and Suppliers.
A perusal of the case diary and the material on record does not involve the petitioner in the commission of offences attributed to him in the impugned FIR. The petitioner has, admittedly, joined the post of Director, Health Services, Kashmir, when the process of purchase of the drug kits under the National Rural Health Mission Scheme, was already completed. Nothing has been brought on record or disclosed in the investigation regarding the role of the petitioner in the commission of offences attributed to him. Therefore, when the whole scanning of the case does not involve the petitioner, there is no option for the Court, but to quash the proceedings against the petitioner. JNF

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