Naresh Kumar Rastogi …..……… v. State of Jharkhand through Vigilance
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 896 of 2012 Naresh Kumar Rastogi …..………… Petitioner Versus State of Jharkhand through Vigilance…………… Opp. Party Coram: The Hon’ble Mr. Justice R.R.Prasad …… For the petitioner For the Vigilance ……
Legal Reasoning
: Mr. Ananda Sen, Advocate : Mr. Shailesh, Advocate
Decision
…… O R D E R C.A.V. On 21/06/2013 Delivered on 28/06/2013 /28.06.2013 This application has been filed for quashing of the entire criminal proceedings of Vigilance P.S. Case No. 22 of 2003 (Special Case No. 24/2003), including the order dated 16/11/2011, passed by the Special Judge, Vigilance, Ranchi, whereby and whereunder cognizance of the offence punishable under Sections 420, 409, 467, 468, 471, 477A, 120 B of the Indian Penal Code and also under Section 13 (1) (d) read with Section 13 (2) of Prevention of Corruption Act, 1988, has been taken against the petitioner and others. 2. The case of the prosecution is that when a complaint was made to the Vigilance that several irregularities have been committed by ACMO, Dumka, in the matter relating to the purchase of medicines, appliances and instruments for the year 20002001 and 2002, inquiry was made and during inquiry certain irregularities were found in the matter of purchase of those materials and, hence, a first information report was lodged, which was registered as Vigilance P.S. Case No. 22/2003 (Spl. Case No. 24/2003) alleging therein that the suppliers including the petitioner has supplied the medicines, implements and appliances etc. on the rate excess than the fixed rate by the Purchase Committee and, thereby, the accused persons in conspiracy with each other, put the State exchequer to a great loss. So far as petitioner is concerned, who happens to be the proprietor of M/s Rahul Distributors, Ranchi, it has been alleged that the petitioner under the supply order dated 20/11/2001, had supplied the medicine, i.e. Cloxacillin Capsules @ Rs. 288/ per hundred capsules, whereas the rate had been fixed by the Purchase Committee @ Rs. 250/ per hundred capsules. On submission of charge sheet, cognizance of the offence punishable under Sections 420, 409, 467, 468, 471, 477A, 120 B of the Indian Penal Code and also under Section 13 (1) (d) read with Section 13 (2) of Prevention of Corruption Act, 1988, was taken against the petitioner and others vide order dated 16/11/2011, which is under challenge. 3. Mr. Ananda Sen, learned counsel appearing for the petitioner submits that in terms of the Government policy as communicated under Memo No. 280 (5)/Swa. Dated 31/07/2001, ACMO, Dumka, placed order to M/s Rajasthan Drugs & Pharmaceuticals Limited, a Government company for supply of the medicines Cloxacillin. On receipt of the supply order, the company asked this petitioner, the proprietor of M/s Rahul Distributors, Ranchi, the marketing agent of Rajasthan Drugs & Pharmaceuticals Limited, to supply the said medicines at the rate approved by the company, which was supplied by the petitioner. Still, the petitioner is being prosecuted on the allegation that the petitioner did supply the medicines and charged excess rate, whereas it was available at much lowest rate, which allegation is misconceived in view of the policy taken by the then State of Bihar under letter dated 18/02/1999 and, subsequently, by the State of Jharkhand vide Memo No. 280 (5)/Swa. Dated 31/07/2001 stipulating therein that the medicine, which is being manufactured by the Government company is to be purchased directly from the company, which was done in this case and, as such, even if the rate of medicines supplied was found to be excess than the rate fixed by the Purchase Committee, the petitioner cannot be said to have committed any illegality as whatever was done, that was done in terms of the Government policy. 4. Mr. Shailesh, learned counsel appearing for the Vigilance submits that the Purchase Committee, which was formed for purchasing the medicines for the years 20002001 and 20012002 had approved the rate of medicines to be purchased. The rate, which had been approved for Cloxacillin capsules was Rs. 250.20 per hundred capsules but the petitioner did supply @ Rs. 288/ per hundred capsules. It was further submitted that during investigation, it was found that the potency for minimum period, i.e. 1824 months from the date of supply was not followed as it was found that supply was made on 15/01/2002, whereas the medicines were to be expired in April, 2003. It was also submitted that the petitioner had earlier been operating through M/s Purshottam Pharmaceuticals, Patna but the said firm was black listed by the Government of Bihar on 07/11/2000 and, thereby, the petitioner was not supposed to act as stockist for any Government company. But the petitioner ignoring this, started operating in the name of M/s Rahul Distributors. 5. As against this, learned counsel appearing for the petitioner submitted that the medicine, which was supplied, was having manufacture date as November, 2001 and date of expiry was April, 2003 and the said medicine was supplied on 02/01/2002 and, as such, nothing wrong was done and moreover, this has never been the case of the prosecution nor it can be the subject matter of criminal prosecution, and that if any order adverse to the interest of the petitioner was passed that as per the counter affidavit it had been passed by the State of Bihar and not by the State of Jharkhand. Further, it was submitted that in the purchase order itself the rate of medicine was quoted and, accordingly, the medicine was supplied by the petitioner an authorized stockist of the Rajasthan Drugs and Pharmaceuticals Limited, Government of India enterprises, which is absolutely in terms of the government policy and, thereby, any prosecution under the circumstances would be abuse of the process of the Court. It was further submitted that almost on similar allegation, one Vigilance Case bearing Vigilance Case No. 2/2004 was lodged against the petitioner, but the I.O., during investigation, after taking notice of the Government policy, did find the case relating to the petitioner as mistake of fact and, hence, submitted final form. 6. In the context of the submissions, one needs to take notice of the said letter as contained in Memo No. 280 (5) Swa. Dated 31/07/2001. From its perusal it does appear that on 27/03/2000, the Purchase Committee under the Chairmanship of Divisional Commissioner, Chhotanagpur Division, on the basis of the quotations received from different suppliers, fixed the rate of the medicines, appliances, machines, instruments etc. At the same time, decision had also been taken that the medicine, which is being manufactured by the Government company, is to be purchased directly from the company. Putting emphasis rather placing reliance on that part of the decision taken in the meeting, plea is being taken that when the items as aforesaid, manufactured by the Government company Rajasthan Drugs and Pharmaceuticals Limited, was supplied by the petitioner, an authorized distributor of the company, under the supply order, the petitioner did not do anything wrong. That plea gets substantiated from the said policy decision wherein it is quite specific that the medicine manufactured by the Government enterprises is to be purchased directly from the company. In the instant case, Cloxacillin capsules manufactured by the Rajasthan Drugs and Pharmaceuticals Limited, has been supplied by the petitioner when the supply order was placed before the company and on getting supply order, the petitioner was authorized by the company to supply the medicine at the rate, which had already been communicated by the company to different authorities of the Health Department and, thereby, even if the rate is higher than the rate fixed by the Purchase Committee, one cannot be said to have committed any offence as whatever was done that was done under the policy of the Government. In such situation, any prosecution of the petitioner would amount to abuse of the process of the Court. 7. Accordingly, the entire criminal proceeding of Vigilance Case No. 22 of 2003 (Special Case No. 24/2003), including the order taking cognizance, is hereby quashed. In the result, this application stands allowed. Mukund/cp.3 (R.R.Prasad, J)