The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI B.A. No.1723 of 2013 Dr. Pradeep Kumar ..... Petitioner Versus The State of Jharkhand through CBI …. Opposite Party CORAM: HON’BLE MR. JUSTICE H.C. MISHRA For the Petitioner : For the CBI : -----
Legal Reasoning
bail by this Court in view of the admitted position that he had no financial power for making purchases under NRHM Scheme. It was also found that the approval given by him as the Minister, for the said purchases, was non est, as he had no authority to give any such approval. It was also found that the larger portion of the money, which was allegedly paid to him, as bribe, had been paid beyond his tenure as a Minister in the State of Jharkhand. Taking these facts into consideration, as also the fact that the co-accused was granted bail by the Supreme Court, the co- accused Bhanu Pratap Shahi was granted bail by this Court. 11. So far as this petitioner is concerned, there is direct allegation against him that during his tenure as Health Secretary-cum-Mission Director under the NRHM Scheme, the entire purchases were made at the highly inflated rates, as also there is allegation against him to have received illegal gratification to the tune of Rs.4,85,00,000/- and Rs.18,16,000/- from the suppliers. It was also found that the petitioner being the Secretary of the Department was having over all control over the entire matter the purchases were made at the exorbitant rates and the State exchequer had been put to wrongful loss of Rs.17,71,98,160/- and Rs.13,62,13,600/- in the purchases. There is also direct allegation against this petitioner of making overall purchases at highly inflated rates to the tune of Rs.130,50,79,951.74/- much beyond the budgetary allocation, without following the prescribed procedure. It was again the petitioner, who had transmitted the false expenditure report to the Government of India. It was also found that all the payments to the suppliers were made by the petitioner. 12. In view of the direct allegations against the petitioner as detailed above, I am not inclined to release the petitioner Dr. Pradeep Kumar on bail. Accordingly, prayer for bail stands dismissed. R.Kumar (H. C. Mishra, J)
Arguments
Mr. A.K. Kashyap, Sr. Advocte Ms. Lina Shakti, Advocate Mr. Anurag Kashyap, Advocate Mr. Md. Mokhtar Khan 5/13.5.2013 Heard learned counsel for the petitioner and learned counsel for the CBI. 2. Petitioner has been made accused for the offences under Sections 120B/420/467/468/471 of the Indian Penal Code, under Section 13(2) read with 13(1)(c)&(d) of the Prevention of Corruption Act, in connection with RC Case No.11 (A)/2009-AHD-R. 3. The petitioner is the main accused in a commonly known 'Medicine Scam', in which, omissions and commissions of the high Officials, Minister and Suppliers in making purchases of medicines and other medical equipments, much beyond the requirement at highly inflated rates, as also exceeding much beyond the budgetary provision, have caused wrongful loss to the State Government, as the purchases were made to the tune of Rs.130,50,79,951.74, without assessing the actual requirements and without following the procedure prescribed in this regard. 4. The petitioner being an I.A.S. Officer, was posted as Secretary, Department of Health, Government of Jharkhand and was also functioning as Mission Director, Jharkhand Rural Mission Society, from the period 20.6.2008 to 3.8.2009 and during this period, such omissions and commissions were made. The matter was investigated by the C.B.I. and after investigation, the C.B.I. has filed the charge- sheet, in which it is alleged against the petitioner as follows:- “(i) Orders for the purchase of the items such as sanitary napkins, first aid book, triangular bandages, cotton bandages, safety pin, thermometer, pen torch and galvanized first aid box were placed on M/s Nand Kishore Fogla by Dr. Vijay Shankar Narayan Singh, the then State R.C.H. Officer after approval of the same was accorded by Dr. Pradeep Kumar. These items were purchased for an amount of Rs. 7,59,01,768/-. (ii) All the payments to the supplier have been made by Dr. Pradeep Kumar. (iii) In the expenditure report transmitted to Govt. of India, he deflated the actual amount of expenditure made on the procurement of medicine and medical equipment and in lieu of an actual -2- expenditure of Rs. 3015.31 lacs, Dr. Pradeep Kumar reflected a sum of Rs. 2989.24 lacs i.e., exactly the amount of budget allocation. Similarly he reflected an amount of Rs. 956 lacs as an expenditure made on the procurement of sahiyya kit as against the actual expenditure of Rs. 1031.06 lacs. (iv) At his instance stringent criteria was imposed in the tenders to suit the supplier of his choice. (v) He received illegal gratification amounting to Rs. 4,85,00,000/- from M/s Nand Kishore Fogla in five installments. This is proved by the confessional statements of Rajesh Kumar Fogla, S/o Nand Kishore Fogla, the proprietor of M/s Nand Kishore Fogla recorded as an accused u/s 164 Cr.P.C. by the Magistrate I-Class. The amount of pay off was conduited through Shyamal Chakarborty. The confessional statement of Rajesh Kumar Fogla stands corroborated by Shri Vikash Khetan (who too made his statement u/s 164 Cr.P.C.) as an accused”. 5. It may be stated that petitioner was also the Mission Director under the National Rural Health Mission (for short NRHM Scheme), sponsored by the Central Government being the Heath Secretary of the Jharkhand, under which Scheme all the purchases were made. In view of the allegation that the petitioner had been given the illegal gratification to the tune of Rs.4,85,00,000/-, as also to the tune of Rs.18,16,000/-, for showing undue favours to the suppliers, as also in view of the fact that purchases were made at the exorbitant rates much beyond the market purchase rates and the State exchequer had been put to wrongful loss of Rs.17,71,98,160/- and Rs.13,62,13,600/- in purchases of disinfectant, fogger machine, dispenser etc., and there were charges of making overall purchases at highly inflated rates to the tune of Rs.130,50,79,951.74/- much beyond the budgetary allocation, for which the petitioner being the Secretary of the Department had transmitted false expenditure report to the Government of India, as also, the petitioner being the Secretary of the Department and was in full control over the entire matter, his bail application was earlier rejected on merits by a detailed order dated 15.2.2012 in B.A. No.8828 of 2011, which is not being repeated again for the sake of brevity. 6. It may be stated that against the said order, the petitioner moved the Supreme Court of India in S.L.A. (Cr.) No.1971 of 2012, which was dismissed by order dated 19.3.2012, giving the liberty to the petitioner to renew his prayer after ten months, if he so desired. The petitioner again moved the Supreme Court of India in the same S.L.A. (Cr.) No.1971 of 2012 bringing on record the medical -3- certificates, whereupon the Apex Court, by order dated 8.8.2012 deleted that portion whereby the liberty to renew the prayer after ten months was given to the petitioner, and the petitioner was given the opportunity to approach the appropriate forum for grant of bail. 7. The petitioner, thereafter, filed his application for bail in B.A. No.6657 of 2012, on the ground of illness of his son, who was suffering from a rare disease called CNS Vasculitis for last two years. The petitioner was granted provisional bail by this Court by order dated 5.11.2012 in B.A. No.6657 of 2012 for a period of two months for proper treatment of his son. During the period the petitioner was on provisional bail, he filed application for extension of the provisional bail, which was dismissed by this Court by order dated 19.12.2012 in Cr.M.P. No.2623 of 2012, giving the liberty to the petitioner to make fresh application for grant of provisional bail at the time of biopsy of the brain of his son. Against the said order, petitioner again moved the Supreme Court in S.L.A. (Cr.) No.6-7 / 2013, which was again dismissed by the Apex Court by order dated 4.1.2013, giving the liberty to the petitioner to move before the appropriate Court for grant of provisional bail. 8. Thereafter, the petitioner has again renewed the prayer for his regular bail in the present application stating that the other co-accused, namely, Siya Ram Prasad Sinha, who was the Health Secretary to the State Government prior to the petitioner, had been granted bail by the Supreme Court of India by order dated 2.1.2013 in S.L.A. (Cr.) No.3425 of 2012, and subsequently the other co-accused Bhanu Pratap Shahi, who was the Health Minister, was granted bail by this Court by order dated 9.1.2013 in B.A. No.9532 of 2011. Learned counsel for the petitioner has also submitted that the petitioner has remained in custody for more than 1½ years and has accordingly, renewed the prayer for bail. 9. Learned counsel for the CBI on the other hand has opposed the prayer for bail submitting that the bail application of this petitioner has already been rejected on merits and the S.L.A. filed against the said order by the petitioner has also been dismissed by the Supreme Court of India. Learned counsel for the CBI has submitted that there is no new ground for consideration of bail of the petitioner and has accordingly, opposed the prayer for bail. -4- 10. After having heard learned counsels for both the sides and upon going through the record, I find that the co-accused Bhanu Pratap Shahi was granted