Punjab-Haryana High Court
Bharat Bhushan Ashu vs State Of Punjab on 20 December, 2024
Author: Mahabir Singh Sindhu
Bench: Mahabir Singh Sindhu
Neutral Citation No:=2024:PHHC:172219
CRM-M-43528-2023 (O&M) & connected matters
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
Date of decision:20th December, 2024
(1) CRM-M-43528-2023 (O&M)
Bharat Bhushan Sharma @ Ashu .......Petitioner
Versus
State of Punjab ........Respondent
(2) CRM-M-52719-2023 (O&M)
Sukhwinder Singh Gill and another .......Petitioners
Versus
State of Punjab ........Respondent
(3) CRM-M-34685-2024 (O&M)
Paramjit Chechi .......Petitioner
Versus
State of Punjab ........Respondent
CORAM: HON'BLE MR. JUSTICE MAHABIR SINGH SINDHU
Present: Mr. Bipan Ghai, Senior Advocate with
Mr. Nikhil Ghai, Advocate and
Mr. Amit Agnihotri, Advocate,
for the petitioner in CRM-M-43528-2023.
Mr. Sant Pal Singh Sidhu, Advocate and
Mr. Sarbuland Mann, Advocate for the
petitioner(s) in CRM-M-52719-2023 and
CRM-M-34685-2024.
Mr. D.S. Brar, Sr. DAG, Punjab.
****
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MAHABIR SINGH SINDHU. J.
Controversy involved in aforesaid three cases is similar in nature
and arises out of the same FIR; hence all the three cases are being disposed off
by this common order.
2. For brevity, facts have been noticed from CRM-M-43528-2023.
3. Present petition has been filed under Section 482 of Code of
Criminal Procedure, 1973 (for short ‘Cr.P.C‘) for seeking quashing of FIR No.
11 dated 16.08.2022, registered under Sections 120-B, 409, 420, 467, 468 &
471 of the Indian Penal Code, 1860 (for short, “IPC“) & Sections 7, 7-A, 8, 12
& 13(2) of Prevention of Corruption Act, 1988, as amended vide Amendment
Act, 2018 (for short “PC Act“) at Police Station, Vigilance Bureau, District
Ludhiana and all consequential proceedings arising therefrom, including final
report under Section 173(2) Cr.P.C qua the petitioner(s).
4. BRIEF FACTS:
4.1 It transpires that one Gurpreet Singh son of Shri Swaran Singh,
resident of House No.218, Street No.4, Durgapuri Vistar, Police Station,
Nandnagri, Delhi-110093 (now residing at Guru Teg Bahadur Nagar, District
Shaheed Bhagat Singh Nagar, Punjab) submitted written complaint dated
02.03.2022 to Chief Director, Vigilance Bureau, Punjab, which was forwarded
to Deputy Superintendent of Police, Vigilance Bureau, Ludhiana, resulting into
registration of FIR No. 11 dated 16.08.2022 against petitioner and other co-
accused.
4.2 Primarily, allegations in the aforesaid FIR are that petitioner being
Minister of Food, Civil Supplies & Consumer Affairs, Government of Punjab
made certain amendments while notifying “The Punjab Foodgrains Labour &
Cartage Policy 2020-2021” (for short “the Policy for 2020-21”).
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It is further alleged that in the Policy for previous year i.e. 2019-
2020, there was no clause with regard to minimum turnover and every person
was eligible to take part in the bidding process; however, in the year 2020-21,
new sub-clause-G in clause 5 was inserted regarding “minimum turnover” from
the cartage work of foodgrains of Govt. agencies in any one financial year out
of previous 3 financial years i.e. from 2017-2018 to 2019-2020; hence the fresh
participants were debarred being ineligible.
It is also alleged that due to amendment in the Policy for 2020-21,
the capacity of cluster was increased and as a result thereof, the competition
was decreased. In this manner, it is alleged that contracts were allotted to some
‘favorites’ of the petitioner and bids of other contractors were rejected. Again
alleged that huge loss was caused to the public exchequer by the petitioner in
connivance with other co-accused while hatching criminal conspiracy,
committing forgery, using forged documents as genuine and some of the
government official(s) receiving kickbacks in return.
CONTENTIONS
5. ON BEHALF OF THE PETITIONER(S)
5.1 Learned Senior counsel for petitioner in CRM-M-43528-2023
contends that present case has been registered out of political vengeance on
behalf of the ruling Government of Aam Aadmi Party in order to suppress the
voice of petitioner, who is a former Minister of Food, Civil Supplies &
Consumer Affairs of Punjab.
5.2 Also contends that Vigilance Bureau in derogation of mandatory
provision of Section 17-A of PC Act, which bars them from conducting any
inquiry, enquiry or investigation against any public servant where the actions
under challenge are relatable to any recommendation made or decision taken by
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the said Public servant in discharge of his official functions of duties, without
previous sanction, registered aforesaid FIR.
5.3 Further contends that as per the Policy for 2020-21, there was a
Tender Allotment Committee for each district in the State of Punjab, headed by
District Controller consisting of 07 members, who were responsible for
conducting the e-auction and giving the tenders. At that time, although
petitioner was Minister of Food, Civil Supplies & Consumer Affairs,
Government of Punjab, but he was not the member of any of the District Tender
Allotment Committees and as such, no decision regarding the allotment of
tender was taken by him. Even for District Ludhiana, there was an independent
District Tender Allotment Committee, headed by Mr. Manish Narula, Deputy
Director as its Chairman. The approval for amendment in the Policy for 2020-
21 was accorded by respective District Tender Allotment Committees and
thereafter, the matter was sent to the Department of Finance, Government of
Punjab for its concurrence. On receipt of the consent from the Finance
Department, the case was forwarded to the Cabinet for its approval, which was
duly granted and thereafter the amendment in the Policy for 2020-21 was
carried out. Thus, it is wrong to allege that it is only the petitioner, who being a
Minister, had amended the Policy for 2020-21.
5.4 Again contends that Policy for 2020-21 is applicable to all and
sundry; thus it cannot be said that it has been framed to give benefit to a
particular person and/or contractor.
5.5 Further vehemently contends that the Policy for 2020-21, which is
alleged to have been amended by the petitioner to benefit certain contractor(s),
was challenged before this Court in CWP No. 10707 of 2020 and CWP No.
10656 of 2020. However, the writ petitions were dismissed and the amendment
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was upheld by the then Division Bench(es) vide separate orders dated
28.07.2020 & 27.07.2020 (P-6 & P-7, respectively).
5.6 Learned counsel for petitioner(s) in CRM-M-52719-2023 and
CRM-M-34685-2024 submits that he adopts the arguments raised by learned
Senior counsel for petitioner in CRM-M-43528-2023.
5.7 On behalf of petitioner(s)-Sukhwinder Singh Gill and Harveen
Kaur, learned counsel further contends that petitioner-Sukhwinder Singh Gill
was posted as District Food and Supply Controller (DFSC), Ludhiana (West)
while petitioner-Harveen Kaur was posted as DFSC, Ludhiana (East) during the
relevant period. Both the petitioners are having clean antecedents and have been
made scapegoats by the Vigilance Bureau for extraneous reasons.
5.8 Learned counsel for petitioner-Paramjit Chechi in CRM-M-34685-
2024 also contends that he, being the successful bidder, has been falsely
implicated in the present case by the complainant on the allegations that at the
time of getting the tender, he had supplied registration numbers of the vehicles,
which were later found to be of motorcycles, scooters and/or three wheelers etc.
5.9 Again contends that the allegations levelled against petitioner-
Paramjit Chechi are baseless since only trucks were used for the purpose, but on
account of some bona fide typographical mistake, wrong registration numbers
of vehicles were supplied and same has been taken as deliberate act, by
Vigilance Bureau with mala fide intention; there has been no fraud committed
by petitioner whatsoever and admittedly, no loss has been caused to the
Government Exchequer since entire goods were transported by petitioner in
proper manner.
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6. ON BEHALF OF THE RESPONDENT
6.1 Per Contra, learned State counsel opposes the prayer of the
petitioner(s) while submitting that petitioner-Bharat Bhushan Sharma @ Ashu,
being the Minister of Food, Civil Supplies & Consumer Affairs, was solely
responsible for amendment in the Policy for 2020-21. The amendment was
made by the petitioner with an ulterior motive to extend benefit to the persons
who were near and dear to him.
6.2 Further submits that complainant-Gurpreet Singh in his statement
dated 21.08.2022 specifically stated that petitioner-Bharat Bhushan Sharma @
Ashu used to collect bribe from contractor(s), who were allotted tenders in
different districts of Punjab through his favourite contractor-Telu Ram.
Complainant-Gurpreet Singh further stated that he and his associate
contractor(s) had made several complaints earlier also regarding the aforesaid
scam, but to no avail.
6.3 Still further submits that another witness of this case, namely,
Rohit Kumar had stated that illegal linkage of Lalton and Dhandra Mandis with
centre at Ludhiana instead of Qila Raipur, was made by accused officials, at the
instance of petitioner Bharat Bhushan Sharma @ Ashu in complete derogation
of letter dated 30.09.2021 of Food Corporation of India.
6.4 Also submits that petitioners-Sukhwinder Singh Gill and Harveen
Kaur, being DFSCs, were convenors of District Tender Allotment Committee
and who had obliged petitioner-Bharat Bhushan Sharma @ Ashu for allotment
of tenders to accused contractor(s) by taking bribe.
6.5 Specifically submits that during course of investigation, co-accused
Telu Ram further disclosed that petitioners-Sukhwinder Singh Gill and Harveen
Kaur approved the documents submitted by him (Telu Ram) in lieu of receiving
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illegal gratification to the tune of Rs.2 lakh & one mobile phone and Rs.3 lakh
respectively.
6.6 Lastly submitted that by virtue of disclosure made by co-accused
Telu Ram, recovery of pocket diary was effected, which contained entries of
bribe given, the modus operandi of the officials, Minister, his associates and
favourite contractor(s) and as such, complicity of all the petitioner(s) and their
co-accused is well apparent.
7. Heard learned counsel for the parties and perused the paper book.
8. DISCUSSION AND OBSERVATIONS
8.1 Before proceeding further, the relevant clause of the Policy for
2020-21 is recapitulated as under:-
“GOVERNMENT OF PUNJAB
DEPARTMENT OF FOOD, CIVIL SUPPLIES AND
CONSUMER AFFAIRS
ANAJ BHAVAN, SECTOR 39-C, CHANDIGARH
——
THE PUNJAB FOODGRAINS LABOUR & CARTAGE POLICY
2020-2021
—–
The Government of Punjab, through its Food Procuring Agencies
and the Food Corporation of Indía procures food grains (mainly paddy
and wheat) on behalf of the Government of India, from various purchase
centers situated in the State of Punjab. The procured food grains are
then stored at different plinths /Godowns owned/ hired by State
Procurement Agencies. The Cartage of food grains from mandis to
various storage points, including rice mills, situated up to 8 KM from
such mandi(s) is got done from various contractors and the Labour
operations in the godowns (including P.E.G) are got carried out from
Labour & Construction Societies, Worker Management Committees and
other labour contractors, on the basis of contracts awarded through
competitive tenders. The Policy, for Labour and Cartage of foodgrains
for the year 2020-21 shall be as under: –
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5. Technical Qualifications:-
A to F ………………………………………………………………………………
G. In case of tenderer applying for cartage, either alone or along with
labour, Tenderer must have minimum turn over from the cartage work
of foodgrains of Govt agencies in any one financial year out of previous
3 financial years i.e., from 2017-18 to 2019-20 depending upon the
capacity of cluster applied for:-
Sr. Total arrival of wheat/paddy(whichever is Minimum
higher) in Mandis in previous year falling turnover
No. under one cluster. required (In
Rupees)
(Only Mandi(s) from which cartage has to
be done to be included to calculate
capacity).
1. Up to 5000 M.T. 10,00,000
2. 5001 Μ.Τ. to 10,000 Μ.Τ. 20,00,000
3. 10,001 M.T. to 20,000 Μ.Τ. 40,00,000
4. 20,001 Μ.Τ. to 30,000 Μ.Τ. 60,00,000
5. 30,001 M.T. to 40,000 Μ.Τ. 80,00,000
6. 40,001 Μ.Τ. to 50,000 Μ.Τ. 1,00,00,000
7. 50,001 Μ.Τ. to 75,000 Μ.Τ. 2,00,00,000
8. 75,001 Μ.Τ. to 1,00,000 M.T. 3,00,00,000
9. Above 1,00,000 M.T. 4,00,00,000
Note 1:- Copy of the audited balance sheet of the concerned financial
year shall be uploaded with the Technical Bid as proof of turnover.”
Perusal of the Policy for 2020-21 reveals that aforesaid amendment had
been made to facilitate everyone concerned and there was no intention to give
benefit to any particular person.
It is worthwhile to mention here that above amendment in the
Policy was challenged at the hands of certain unsuccessful bidders in CWP No.
10707 of 2020 and CWP No. 10656 of 2020, which came to be dismissed by
the then Division Bench(es) vide orders dated 28.07.2020 & 27.07.2020 (P-6 &
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P-7, respectively). For reference, the relevant paragraphs of the order dated
27.07.2020 (P-7) passed in CWP-10656 of 2020, are extracted as under:-
“1. Petitioner claims to be prospective tenderer for the work of
Cartage of foodgrains from respective mandis to storage points of
Cluster Talwandi Bhai, Distt.Ferozepur, pursuant to the notice inviting
E-Tender for labour and cartage works during 2020-21, published in
various newspapers on 24.1.2020, supplemented by the Corrigendum
Tender Notice dated 6.7.2020 (P-2) whereby the last date for
submission of tender forms is 28.7.2020 and opening of technical bids is
29.7.2020.
2. Grievance of the petitioner is directed towards Clause 5(G) of
the Punjab Food Grains Labour and Cartage Policy,2020-21 (P-1) (for
short Policy 2020-21) issued by the Department of Food and Civil
Supplies and Consumer Affairs, whereby for the first time a condition
has been provided requiring tenderer to have minimum turnover from
the cartage work of foodgrains of any Governmental agency of one year
out of three years from 2017-18 to 2019-20, thereby rendering the
petitioner ineligible to apply on account of not having worked with the
Government agency in the recent past inspite of having sufficient
experience in the previous years. Thus, the challenge in the present
petition is to Clause 5(G) of Policy 2020-21.
3. ………………………………………………………………………..
4. After hearing counsel for the petitioner at length, we are not
persuaded to invoke our writ jurisdiction as we find no fault with the
action of the respondents.
In order to examine the issue involved in this petition, it would
be beneficial to reproduce the said Clause 5(G) of Policy 2020-21,
which reads as under:-
Clause 5(G): In case of tenderer applying for cartage either
alone or along with labour, Tenderer must have minimum turn over
from the cartage work of foodgrains of Government agencies in any one
financial year out of previous 3 financial years i.e. from 2017-18 to
2019-20 depending upon the capacity of cluster applied for:-
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CRM-M-43528-2023 (O&M) & connected mattersSr. Total arrival of wheat/paddy(whichever is Minimum
higher) in Mandis in previous year falling turnover
No. under one cluster. required (In
Rupees)
(Only Mandi(s) from which cartage has to
be done to be included to calculate
capacity).
1. Up to 5000 M.T. 10,00,000
2. 5001 Μ.Τ. to 10,000 Μ.Τ. 20,00,000
3. 10,001 M.T. to 20,000 Μ.Τ. 40,00,000
4. 20,001 Μ.Τ. to 30,000 Μ.Τ. 60,00,000
5. 30,001 M.T. to 40,000 Μ.Τ. 80,00,000
6. 40,001 Μ.Τ. to 50,000 Μ.Τ. 1,00,00,000
7. 50,001 Μ.Τ. to 75,000 Μ.Τ. 2,00,00,000
8. 75,001 Μ.Τ. to 1,00,000 M.T. 3,00,00,000
9. Above 1,00,000 M.T. 4,00,00,000
It is apparent that for a tenderer to apply for allotment of
contract for cartage alone or alongwith labour, he must have a
minimum turnover from the cartage work of foodgrains from any of
the Government agency in the 3 financial years as per specified
capacity of the cluster. It is also matter of record that the policy
containing clause was notified on 30.3.2020. It is further apparent
that Government to protect its interest in such like commercial
transactions affecting public interest has tried to provide some
leverage to the prospective contractors who have executed certain
works of required magnitude in the recent past.
5. ………………………………………………………………………..
6. In the backdrop of aforesaid law on the subject, it cannot be
denied that each contract and, in any event, each type of contract
would require an elaborate exercise while fixing the terms and
conditions of the notice inviting tenders. The party inviting tenders is
free to adopt any reasonable method for the purpose of fixing the
terms and conditions of the tenders. They may rely upon experts or10
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CRM-M-43528-2023 (O&M) & connected mattersconsultants. They may rely upon in-house expertise or may seek the
assistance of other consultants. The terms of the invitation to tender
is in the realm of contract. The Government must have freedom of
contract. In the present case if the Government has introduced this
additional requirement of a tenderer having executed work of
Government agency of minimum turnover in any one year in the
previous three years towards the soundness, capacity and ability of a
contractor to ensure the timely and successful execution of the work
(especially in these challenging times of pandemic Covid-19), the
action cannot be termed to be unreasonable, irrational or arbitrary,
so as to persuade us to interfere in our writ jurisdiction, keeping in
view the law settled by Hon’ble the Supreme Court.
Dismissed.”
8.2 To the same effect are the observations made by another Division
Bench of this Court in CWP-10707 of 2020 and for reference, the relevant
paragraphs of the order dated 28.07.2020 (P-6), are recapitulated as under:-
“1. Feeling aggrieved by the order dated 17.07.2020
(Annexure P/6) whereby respondent No.2 rejected the
representation of the petitioner seeking participation in the
tender process initiated by respondent No.1 for labour and
cartage of foodgrains, on the ground of his being
inexperienced contractor, the petitioner has sought the
indulgence of this Court for issuance of a writ in the nature of
certiorari quashing the above-said order as well as Clause
5(ii)(G) of the Punjab Foodgrains Labour and Cartage Policy,
2020-21 (for short “PFLC Policy”) and has made a further
prayer for issuance of a writ in the nature of mandamus
directing the respondents to permit him to participate in the
tender processes within the State of Punjab and to consider his
bids.
2 ……………………………………………………………..
3 ……………………………………………………………..
4 ……………………………………………………………..
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6. However, we do not find the afore-discussed contentions
to be tenable at all because a bare perusal of the impugned
order (Annexure P/6) reveals that it has been specifically
mentioned therein that “cartage” which was categorized as
“unskilled work” till the previous year, i.e. 2019-20, has now
been included in the category of the “skilled work” as per the
decision taken by the Council of Ministers, Punjab on
02.03.2020. Even otherwise, undoubtedly, the foodgrains are
perishable goods/items. It being so, the timely and proper
handling of the same after its harvesting, i.e., loading,
transportation, unloading and storage thereof, is of utmost
importance to keep the same preserved for being distributed
and utilized so as to achieve the object and the goal behind the
enactment of the Food Corporation of India Act, 1964 (as
amended from time to time) and this work certainly involves
skill.
7. Undisputedly, framing/floating of a policy is exclusively
within the domain of the Executive. The Authority/Agency
seeking any work to be got done through the tender process is
supposed to be well within its rights to determine/stipulate the
terms and conditions regarding the mode and manner of the
execution of the said work. It is also well settled that the
Courts should not sit over the decisions taken by the
Executive/the Government as the Court of Appeal or the
Reviewing Authority except in the eventualities where such
decisions are mala-fide or arbitrary. When applied on the
touch-stone of the above-said proposition, the impugned clause
of PFLC Policy requiring a tenderer to have the experience in
the cartage of foodgrains, the same being a categorized skilled
work, for at least one year in the preceding three years, cannot
be held to be malafide or arbitrary. Resultantly, the impugned
order (Annexure P/6) which is also broadly based on the said
clause, does not warrant any interference by this Court.
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8. As regards the last contention of learned counsel for the
petitioner regarding the impugned clause being contrary to
Annexure P/7 while claiming this document to be the MTF, it is
worth-while to mention here that a plain reading thereof shows
that it has been issued by the General Manager (Region), Food
Corporation of India Regional Office, Haryana, Panchkula.
Hence, the same cannot be taken to be the MTF meant to be
followed throughout the country. Thus, Annexure P/7 is also of
no avail to the petitioner to substantiate his claim in this
petition.
9. As a sequel to the foregoing discussion, it follows that
the present petition, being devoid of any merit, deserves
dismissal. We order accordingly.”
During the course of hearing, it was acknowledged by both sides
that aforesaid orders passed by Division Bench(es) have attained finality as
there was no further challenge to the same. Meaning thereby, the amendment of
Clause 5(G) of the Policy for 2020-21, which has been made the sole basis for
initiation of criminal prosecution, has already been judicially reviewed by the
Division Bench(es) of this Court and the same is duly upheld. Moreover, the
Policy for 2020-21 was framed by the Government of Punjab and thus, it cannot
be said that the decision to that effect was taken, solely by the petitioner-Bharat
Bhushan Sharma @ Ashu.
8.3 Apart that, it is discernible that petitioners-Sukhwinder Singh Gill,
Harveen Kaur and Paramjit Chechi were nominated without any valid basis by
the complainant-Gurpreet Singh and witness Rohit Kumar (another associate
contractor of complainant) and as such, it can be safely said that present case
has been registered by Vigilance Bureau without verification of the actual facts.
Even no mens rea can be attributed to petitioners-Sukhwinder Singh Gill &
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Harveen Kaur merely being the Government Employees; rather they discharged
their duties with due diligence.
8.4 As far as petitioner-Paramjit Chechi (successful bidder) is
concerned, the unsuccessful bidder(s) (complainant-Gurpreet Singh as well as
witness-Rohit Kumar) had an axe to grind against him to wreak their
vengeance. Mere bald allegation of providing fake registration numbers of
vehicles i.e. motorcycles, scooters and/or three wheelers by petitioner-Paramjit
Chechi, does not constitute any offence; particularly when there has been no
loss to the State Exchequer and the required quantity of foodgrains was duly
delivered well in time.
8.5 Also discernible that confessional statement of co-accused Telu
Ram recorded in police custody would be inadmissible in law and hit by
Sections 25 and 26 of the Indian Evidence Act, 1872.
8.6 Thus, there is no hesitation to observe that allegations leveled in
the FIR do not disclose any cognizable offence and at best, complainant could
have availed remedy of judicial review against the amended Policy for 2020-21;
but certainly, there was no occasion to prosecute the petitioner(s) on that count.
8.7 In view of the facts and circumstances discussed herein above,
launching of prosecution by complainant-Gurpreet Singh (unsuccessful bidder)
is nothing, but an example of giving a cloak of criminal offence to the
contractual matter for Procurement and Transportation of foodgrains.
9. In such a scenario, the irresistible conclusion would be that
criminal proceedings have been initiated against petitioner(s) by the Vigilance
Bureau at the instance of complainant, just to harass them and as such, it
amounts to misuse of powers by the Bureau, for the reasons, which are
unknown to law.
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Therefore, it is a fit case to exercise the inherent powers under
Section 482 Cr.P.C to prevent the abuse of process of law.
10. Consequently, this Court is left with no option, except to allow all
three petitions.
11. Ordered accordingly.
12. As a result, FIR No. 11 dated 16.08.2022, registered under
Sections 120-B, 409, 420, 467, 468 & 471 of the IPC & Sections 7, 7-A, 8, 12
& 13(2) of the PC Act at Police Station, Vigilance Bureau, District Ludhiana
and all consequential proceedings arising therefrom, including final report
under Section 173(2) Cr.P.C., are quashed and set aside qua the petitioner(s).
Pending application(s), if any, shall also stand disposed off.
Photocopy of this order be placed on the files of connected matters.
20th December, 2024 (MAHABIR SINGH SINDHU)
SN/Rajeev(rvs) JUDGE
Whether speaking/reasoned : Yes/No
Whether Reportable: Yes/No
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