1
IN THE COURT OF THE SPECIAL JUDGE, C.B.I.,
ASSAM, GUWAHATI
Special Case No. 05/2008
Present:- Sri M.K. Bhattacharjee
Special Judge, CBI,
Assam, Guwahati.
State (C.B.I.)
Vs.
Sh. Sanjeev Kumar Kansal …….. Accused
U/S 7, 13(2) r/w 13(1)(d) of the P.C Act,1988
Lawyer for the Prosecution : A. Bhattacharjee, Ld. Special
P.P, CBI
Lawyer for the accused
: Sri Utpal Chamua, Ld. Lawyer
Dates of recording Prosecution Evidence : 22.7.11,
30.9.11, 18.5.12, 9.7.12, 10.8.12, 23.11.12, 7.3.13, 4.4.13,
5.4.13, 6.4.13, 8.5.13, 9.5.13,
12.6.13, 2.7.13, 30.7.13,
31.7.13, 31.8.13, 9.10.13, 15.11.13, 16.12.13, 17.12.13,
19.2.14, 13.3.14, 14.3.14, 15.3.14, 4.6.14, 5.6.14 & 6.6.14.
Dates of recording Defence Evidence
Argument Concluded on
Judgement delivered on
: 27.1.15, 28.1.15,
: 09.03.2015
: 06.04.2015
JUDGMENT
On 27.01.2008, Sri Benzamin Papao Touthang, a
contractor and resident of Churachandpur, Manipur, submitted a
complaint to the SP, CBI, ACB, Shillong alleging that Sri S.K.
Kansal, Superintendant Engineer of BSNL, Civil, Silchar asked him
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to give 4.5% of the work value if he wanted to get the work
order as per tender submitted by him for construction of USO
Towers in Chandel and Churachandpur districts of Manipur. It
may be mentioned here that complainant submitted tender
papers in response to Notice issued by BSNL, Civil wing for
construction of USO towers.
2.
Sri T. L. Zamang, Inspector, CBI, ACB verified the
complaint discreetly and found prima facie correctness of the
complaint. An FIR was drawn and a case was registered vide No.
RC SHG 2008(A)0002 dated 28.1.2008 u/s 7 of the Prevention of
Corruption Act, 1988, hereinafter referred to as the Act. The case
was endorsed to Sri M. T. Mang, Inspector, CBI,, ACB, Shillong. A
trap team consisting of Sri M.T. Mang, Inspector, CBI, Sri
T.L.Zamang, Inspector, CBI, Sri H.R.Deb, Sub-Inspector CBI, Sri
Ramo Singh, Head Constable, CBI, Sri Bilam Ch Singh, Driver and
independent witnesses Sri P.C. Rudra Pal, Sri Natum Singh and
Sri Debashish Das was constituted at Silchar on 28.1.08 since
accused was posted at Silchar as Superintendent Engineer, BSNL,
Civil.
Pre-trap
proceeding
was
held
by
the
TLO
and
demonstration was given before all the above witnesses
regarding use of Phenolphthalein powder and sodium carbonate
solution in a trap. It was shown that when any object is treated
with the same powder and it comes into contact with the
solution, referred to above, the solution turns pink. The pre-trap
proceeding was held at the Transit Camp of NEEPCO at Silchar.
The complainant was asked to produce the currency notes. He
produced currency notes amounting to Rs. 1 lac. The currency
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notes were treated with Phenolphthalein powder and were kept
in the pocket of the complainant and he was asked not to touch
the currencies until demanded by the accused. One Natum
Singh, an independent witness, an employee of FCI, Silchar
whose service as witness was requisitioned by the CBI, was
instructed by the I/O to follow the complainant like his shadow
and to give the signal to the other trap team members
immediately after delivery of the money to the accused. The pretrap proceeding was reduced into writing in a memorandum and
all the members of the trap team put their signatures thereon.
3.
At about 4 PM on 28.01.2008, the trap team
proceeded to the office of the accused and the shadow witness
and the complainant proceeded to the chamber of the accused
and other trap team members were waiting outside the office as
instructed by the I/O. At about 5 PM the accused came to his
office. After some time, on seeing the pre-determined signal of
the shadow witness, the other trap team members rushed to the
room of accused Sri S.K. Kansal. The shadow witness pointed to
the drawer of the accused and thereafter Head Constable Ramo
Singh and Driver Bilan Ch. Singh caught the right and left wrists
of the accused respectively. The TLO Sri M.T. Mang introduced
himself and other trap team members to the accused Sri S. K.
Kansal and challenged him that he had demanded and accepted
the money/ bribe of Rs. 1 lac from the complainant Benzamin
Papao Tauthang. The shadow witness pointed that the accused
kept the money in the drawer of his official table. On opening of
the
drawer,
two
bundles
of
currencies
were
recovered.
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Thereafter, fresh solution of Sodium Carbonate in clear glass of
water was prepared and the right hand fingers of accused were
dipped in the solution and as soon as the fingers touched the
solution, it turned pink. Similarly, hand wash of left hand fingers
of accused Sri Kansal was also taken and the solution turned
pink. The bottles containing solution of hand wash of the
accused were packed and sealed in presence of the witnesses
and the accused. The money recovered from the drawer of Mr.
Kansal was found to be the same currencies that were handed
over to the complainant after treating with Phenolphthalein
powder. Personal search of accused Sri Kansal was conducted
and a cash amount of Rs.1,02,415/- was found in his wearing
pant’s pockets which was later returned to him as he claimed it
to be his personal money. The proceeding of the trap was
recorded in the Post-Trap cum recovery/seizure memo which was
prepared at the spot on 28.01.2008 and said memo was signed
by all the witnesses.
4.
Further investigation led to seizure of 7 files, relating
to construction of USO Towers and tenders submitted by the
complainant and others, from the office of the accused S. K.
Kansal. The hand wash which was taken in two bottles were
forwarded to CFSL, Kolkata for examination and the laboratory
by its report dated 16.04.2008, gave positive result about
presence of Phenolphthalein powder in the Sodium Carbonate
Solution in the specimen. On completion of the investigation,
charge sheet was submitted by the I/O, u/s 7 and 13(2) read
with Section 13(1)(d) of the PC Act, 1988. Before filing the
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charge sheet the prosecuting agency obtained sanction to
prosecute Sh. S.K. Kansal from the competent authority.
5.
On receipt of the charge sheet, the court summoned
the accused and on his appearance submitted copies to him. On
hearing both sides and on perusal of the materials filed u/s 173
Cr.PC, accused Sh. Sanjeev Kumar Kansal was charged u/s
Section 7 and 13(2) read with Section 13(1)(d) of the Prevention
of Corruption Act, 1988 hereinafter referred to as the Act, by this
court. The accused pleaded not guilty and claimed to be tried.
6.
Prosecution examined 14 witnesses. Accused was
thereafter examined u/s 313 Cr.PC. The defence plea was that
the accused was falsely implicated in the case and that neither
proper sanction obtained to prosecute him nor could the
prosecution prove the facts alleged against him. A specific plea of
defence was that the complainant and the I/O-cum-TLO being
from the same town of the state of Manipur, conspired against
the accused to implicate him in a false case. Four witnesses were
examined by the defence who were the present or former BSNL
officials.
7.
I have heard argument from both sides and have
carefully perused the evidence available in the record.
8.
POINTS FOR DETERMINATION: (i) Whether on
28.01.2008, the accused being public servant, accepted
from the complainant, Rs. 1 lac being the bribe money in
connection with awarding of contract for construction of
USO Towers?
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(ii)
Whether on 28.01.2008, the accused being public
servant, by corrupt and illegal means and abusing his official
position, obtained from the complainant Rs. 1 lac which he
was not legally entitled to ?
DECISIONS, DISCUSSIONS AND REASONS FOR
DECISIONS:9.
During argument learned Special PP for CBI
submitted that the sanction for prosecution of the accused was
obtained from the highest authority of the BSNL and hence the
plea for not taking appropriate sanction cannot be accepted. He
further argued that when the bribe money was recovered from
the accused, it gave rise to a presumption of demand as the
accused failed to give satisfactory explanation for the recovery of
Rs. 1 lac, the bribe money, from his possession. He further
submitted that defence failed to rebut the presumption. It was
also argued that small variations in the testimony of the
witnesses or one or two statements by one or two witnesses
here and there and particularly during cross examination could
not be given undue weight age and the evidence on record
should be appreciated on the basis of its totality and
trustworthiness.
10.
Learned defence lawyer made an elaborate argument
harping on several points which are briefly mentioned below.
Proper sanction was not obtained for prosecuting the accused
who joined in DOT but later absorbed in BSNL. There could not
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have been any credible motive to demand bribe as the tenders,
in question, submitted by the complainant had already expired
before the date of alleged occurrence. The entire complaint was
fabricated and the TLO, Sri M.T. Mang and the complainant being
from the same locality in Manipur conspired and fabricated the
case against the accused. Several versions were given by the
prosecution regarding details of pre-trap proceeding and the
alleged recovery of money. According to some witnesses the
currencies were wrapped in paper and according to some the
currencies were not wrapped in papers. Most of the witnesses
could not precisely narrate how the money was recovered. After
recovery of the money, accused was asked to count the notes
which explained the presence of Phenolphthalein powder in his
hand.
11.
Let me now briefly look at the relevant evidence on
record. PW-2, Sh. Benzamin Papao Taothang, the complainant of
the case, stated that he has been a registered contractor in
BSNL, Civil Works and in pursuant to notice inviting tender issued
by the Civil Wing of BSNL for construction of USO Towers, he
submitted tenders in respect of Churachandpur and Chandel
districts of Manipur. He was the lowest tenderer and was called
by the Supdt. Engineer (accused) to meet him for rate
negotiation. The office of the Supdt. Of Engineer being located at
Silchar,
he
went
there
and
met
him
who
demanded
commission/bribe of 4.5% of the total work value. He was again
asked by the Executive Engineer, BSNL, Civil, Sri Sanjay Kumar to
meet accused Sri S.K. Kansal. He later called up the Executive
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Engineer, Sri Kumar and told that he would meet the Supdt.
Engineer, Mr. S.K. Kansal on 28.01.2008. Thereafter, however, he
went to the CBI Office, Shillong and lodged the complaint against
Mr. Kansal regarding demand of bribe. He was then introduced
with two CBI officers T. Zamang and M.T. Mang. He narrated to
them the matter of tender and subsequent illegal demand of
bribe. Ultimately the trap team was formed at Silchar on
28.02.2008, and after demonstration regarding laying of trap
before all the witnesses, Phenolphthalein Powder was applied on
the currency notes produced by him totalling Rs. 1 lac. Rs.
25,000/- was in Rs. 1000/- denomination and Rs. 75,000/- was
in Rs. 500/- denomination. On the same day, in the afternoon, he
along with other trap team members went to the BSNL Office
and witness Natum Singh accompanied him to the chamber of
the accused. On demand by the accused, he handed over the
money and thereafter Natum Singh signalled to the other
members of the team who arrived and recovered currency and
took hand wash of the accused.
12. PW-7, Natum Singh, an employee of Food Corporation
of India at the relevant time, was accompanying the complainant
as shadow witness, his services being requisitioned by the CBI.
He stated that on 28.01.2008, he along with the complainant and
other members of the trap team went to the office of the
accused but the accused was not present there and they were
waiting outside the office and when the accused came they went
to the chamber and after some talks the complainant handed
over the currency notes to the accused Sri S.K. Kansal. At this
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stage the witness was declared hostile by the prosecution and he
was subjected to the cross-examination by the prosecution.
During cross-examination by the prosecution the witness stated
that he was present at the place of occurrence when the accused
was arrested and from his drawer a packet containing the
currencies were recovered. The witness further stated that after
accepting the money, the accused S.K. Kansal put the amount
inside drawer. During cross-examination by defence he did not
agree to the defence suggestion that the accused did not accept
the amount. He also denied the defence suggestion that in
absence of the accused in his chamber money was kept inside
the drawer.
13.
PW-3 M. Ramo Singh, PW-4 H.R. Dev and PW-6
Prabhat Ch. Rudrapaul were other members of the trap team.
PW-3 stated that the demonstration was given to them as to how
the trap would be laid on the accused at the NEEPCO Guest
House at Silchar and thereafter a pre-trap memorandum was
prepared consisting of 7 pages where all the witnesses put their
signatures. The details of the currency denominations were also
recorded. He further stated that after reaching the chamber of
accused on receipt of signal, Mr. Mang, Trap Laying Officer (TLO)
was hinted by Natum Singh (PW 7) that money was kept by
accused in the drawer wherefrom it was ultimately recovered and
hand wash of fingers of both hands of the accused were taken
and the solution turned pink. The pink solution, that is, hand
wash of fingers of the hands of the accused, was kept in two
different
bottles
and
sealed.
Thereafter,
the
Post-trap
10
memorandum was prepared. The testimonies of PW-4 & 6 were,
more or less, similar to that of the testimony of PW-3.
14.
PW-5, Mridul Bhusan Deb, Junior Engineer in the
office of the Supdt. Engineer (Civil Circle) BSNL, Silchar at the
relevant time, stated that the area wise jurisdiction of BSNL, Civil
Circle, Silchar was Manipur, Arunachal Pradesh and Nagaland. He
stated about the procedure of floating of tender and setting up
of USO Towers. He also stated that the financial jurisdiction of
the Executive Engineers at that time was Rs. 6 lacs and as the
cost of setting up of the concerned USO Towers were beyond the
financial jurisdiction of Executive Engineer the tenders along with
comparative statements were placed before the Suptd Engineer
(accused) for finalisation and acceptance. He also exhibited the
seizure memo, (Ext-15) by which 8 articles including 7 files,
containing the relevant tender papers were seized from the office
of the S.E (accused). He further stated that the files were sent to
the accused for acceptance. He also stated that Benzamin Papao
Taothang was one of the tenderers. He also exhibited the tender
files as Ext- 16, 17, 18, 19, 20, 21 and 22 which contained
tender
documents
complainant
submitted
by
contractors
including
Benzamin Papao Taothang . Six tenders were in
respect of setting up of USO Towers in the district of
Churachandpur and Chandel in the state of Manipur. He further
stated that on 28.01.2008, the files were in the office of the
Superintendent Engineer Sri S.K. Kansal. From the crossexamination part of PW-5, it appeared that after the occurrence,
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when Sri S.P. Ram took charge of the office of the Supdt
Engineer, the tenders were revalidated and accepted.
15.
PW-8, Sri Sanjib Kumar was the Executive Engineer,
BSNL, Civil Circle at the relevant time. He stated that tender files
exhibited by PW-5 were maintained in the office of Supdt
Engineer (accused) at the time of seizure by the CBI. He
narrated the procedure followed for erection of USO towers at
the relevant time which may be summarized as under. After
approval of notice inviting tender by the Supdt Engineer, BSNL
(Civil), Silchar, same was published in news paper and BSNL
website. On receipt of the application from the intending
tenderers/contractors these were scrutinized in Dimapur Office of
Civil Division, BSNL. The same was scrutinized by the official
staffs. On due date the tenderers deposited their tenders in the
tender box and thereafter on a specified date and place the
tender box was opened in presence of the tenderers and
compilation was prepared which were forwarded to the accepting
authority, that is, the Superintendent Engineer with Executive
Engineer’s recommendation as the amount was beyond the
jurisdiction of the Executive Engineer. He also admitted that the
Ext 3 letter written by him to the complainant asking him to meet
the S.E was not written in the official letter head. However, the
writing of the letter was not denied.
16. PW-9, Debashish Das, a member of the trap team also
deposed more or less similarly as that of the other members of
the trap team. He further stated that all the members of the trap
team along with the complainant went to the office of the
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accused and the complainant and the shadow witness went
inside and after receiving the pre-arranged signal he along with
other witnesses entered into the room of the accused. He further
deposed that on search the packet containing currency notes (M.
Ext.1/1 to M. Ext. 1/176) were recovered from the drawer of the
accused and on comparison it was found that the currency notes
were those which were with the complainant for giving to the
accused as bribe. He further deposed that the entire proceeding
was reduced in writing in Post-Trap memorandum, Ext-7. During
cross-examination he again reiterated that the money was
recovered from the office drawer of the accused.
17. PW-10, an Inspector, CBI, ACB, Shillong at the relevant
time, deposed that on 27.01.2008, he was asked by the SP, CBI,
ACB, Shillong to carry out discreet verification of Mr. S.K. Kansal,
the then Supdt Engineer, Telecom, BSNL, Civil, Silchar. The
verification was required to be carried out because of the written
complaint alleging that Mr. S.K. Kansal demanded bribe from the
complainant. He further stated that on receipt of instruction from
the SP, he immediately proceeded to Silchar and through his
sources it was learnt by him that accused Sri Kansal was a
corrupt officer and did not enjoy good reputation. He exhibited
his verification report as Ext. 25. Thereafter, the Trap Laying
Officer (TLO), Sri M.T. mang, Inspector, CBI, ACB, Shillong was
endorsed with the investigation of the case. He further stated
that the trap team was constituted consisting of himself, M.T.
Mang (PW-13), H.R. Dev (PW-4), Ramo Singh (PW-3), Natum
Singha (PW-7), P.C. Rudrapaul (PW-6) and Debashish Das (PW-
13
9). His testimony regarding payment of bribe to the accused by
the complainant and subsequent recovery of the money from the
drawer of the accused was more or less similar to that of the
relevant testimony of the other members of the trap team.
18.
PW-11, Bimal Chandra Purkait, Senior Scientific Officer
of the CFSL, Kolkata at the relevant time, deposed that after
receipt of the materials of the instant case on 25.02.2008, these
were marked to him for chemical inspection and opinion by the
director. He further stated that the Material Exhibits were in
sealed condition bearing the brass seal of CBI. He identified M.
Ext- 2 and 3 in the Court and also stated that both the M.
Exhibits contained Phenolphthalein Powder, Sodium Carbonate
and water. He also exhibited his report as Ext 26 which was
forwarded to the SP, CBI, ACB, Shillong by the Director of the
CFSL.
19.
PW-12, Sri Ajay Kumar Mittal, Chief Engineer (Civil)
NE-I, Shillong also narrated about the procedure and follow up
matters relating to tender documents.
20.
PW-13, a CBI officer and the TLO of the case has
stated that on 28.01.2008, he was informed that a case has been
registered on the basis of the complaint filed by the complainant.
He further deposed that the trap team consisting of Sri T.L.
Zamang, Inspector, CBI, ACB, Shillong, Sri H.R. Deb, S.I., CBI,
ACB, Shillong and Ramo Singh, Head Constable, CBI, ACB,
Shillong had been constituted and the team reported to him at
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camp office at the NEEPCO transit office, Silchar. He further
deposed that thereafter he submitted requisitions to the Area
Manager, FCI, Shilchar, Branch Manager, Punjab and National
Bank, Silchar for deputing persons from their offices for being in
the trap team as independent witnesses. Thereafter, Natum
Singh, Sri P.C. Rudrpaul and Debashish Das were deputed from
the FCI and Punjab and National Bank respectively. In presence
of all the witnesses he requested Sri H.R. Deb to take out the
container of Phenolphthalein Powder and Sodium Carbonate and
to conduct the demonstration of the mixture of the said powder
and solution in presence of all the witnesses of the trap team.
The solution of Sodium Carbonate in two clear glass bottles was
kept on the table and when a small piece of white paper was
dipped in the solution it remained colourless but when a small
piece of white paper smeared with Phenolphthalein Powder on
both sides was dipped into the solution it turned pink. The said
bottles of solution were thrown away and papers were burnt by
Mr. H.R. Deb. He thereafter deposed that he asked the
complainant to produce the money before the witnesses and the
complainant produced the money amounting to Rs. 1 lakh. M.
Ext.- 1(2) to Ext 1(176) were the said currencies. The numbers
of the currencies were then noted down and marked as “X”(1).
Thereafter, as per his instruction Sri H.R. Deb applied
Phenolphthalein Powder on both sides of the notes gently and
folded them in the middle and handed over to the complainant to
keep the currencies in two bundles, denomination wise, in his
pocket. The witnesses also asked the complainant not to touch
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the tainted notes until and unless money was demanded by the
accused. The entire Pre-trap proceeding was reduced in writing
which has been exhibited as Ext.-4. Thereafter, the entire team
along with the independent witnesses proceeded to the office of
the accused at about 4 PM and took respective positions in the
premises of the office of the accused as briefed earlier.
Thereafter, the complainant along with the shadow witness Sri
Notum Singh proceeded to the office chamber of the accused
and remaining team members waited outside. After about an
hour the accused arrived in the office and after some time the
shadow witness Sri Notum Singh came out of the office chamber
of the accused and gave pre fixed signal and immediately other
team members along with the independent witnesses rushed to
the chamber of the accused. The TLO introduced himself as well
as the witnesses to the accused and after knowing his name he
charged the accused that he had accepted bribe money of Rs. 1
lakh from the complainant. In the mean time Ramo Singh and
Bilan Chandra Singh caught hold of the accused by his right wrist
and left wrist respectively. The accused become pale and kept
mum. The shadow witness then pointed towards the right side
drawer of the table of the accused and stated that money
accepted from the complainant was kept inside the said drawer
by the accused. The money was then recovered and it was found
that it was the same money as M. Ext.- 1(2) to 1(176). After
recovery of the currency notes the same were wrapped in a
markin cloth and the witnesses put their signatures on the
wrapper (M Ext 4). Sri H.R. Deb thereafter, prepared the solution
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of Sodium Carbonate in a clean glass of water and put the right
hand/finger of the accused into the said solution and solution
turned pink. Similarly, another solution of Sodium Carbonate was
prepared in a clean glass of water and the left hand/fingers of
the accused were dipped therein whereupon the solution turned
pink. Both the bottles containing the hand wash of the accused
with the solution (MExt 2 &3) were sealed in markin cloth and
the witnesses put their signatures on the sealed bottles
containing the solution. The witness further deposed that when
a personal search of the accused was conducted, a sum of Rs.
1,02,415/-
in different denomination and currencies were
recovered from his pocket. However, this money was claimed by
the accused to be his personal money and accordingly, returned
to him.
21.
PW 14, who was handed over the investigation of the
case from Sri M.T.Mang on 2.2.08, deposed that there was a type
mistake in the FIR in as much as it was shown to be addressed
to S.P, CBI, Guwahati. Immediately after taking over the
investigation he filed an application to the court informing about
the type mistake. He took statements of some witnesses and
seized the concerned tender files from the office of the accused.
He also forwarded the solution procured during the trap (MExt 2
& 3) to CFSL, under signature of the S.P, CBI. He further
deposed that allotment of the works as per tenders were to be
finalized by the accused and that the rate quoted by the
complainant was lowest. After collection of report from the CFSL
17
and on evaluation of the materials collected during investigation,
as stated by him, he submitted the Charge Sheet.
22.
DW 1, Sri A. M. Gupta, Addll General Manager,
Corporate office, BSNL, New Delhi deposed that as per BSNL
conduct, discipline and appeal Rules, 2006, (Ext S), as the
accused was an absorbed Officer from DOT, he was removable
from service only on approval of the Department of Telecom,
Govt of India. He also deposed that the image of the accused
was one of upright and honest officer. During cross examination
by the prosecution he stated that he has no personal knowledge
about the case and the allegation. He also admitted, during cross
examination, that the accused, being Head of his office at BSNL,
Civil, Silchar at the relevant time, had his own chamber and if
there was some discussion in the chamber with other persons
regarding exchange of gratification the same would be known
only if complained.
23.
DW 2, Sri S.K. Babbar, Chief Engineer, Arbitration,
BSNL, New Delhi deposed that in his career he dealt with
tendering process in various capacities. He also deposed that
accepting authority is to decide whether validity of a tender is to
be extended. He also deposed that all the exhibited tender
documents were floated by Executive Engineer, Civil, BSNL,
Dimapur and after scrutinizing the tender documents, the
Executive Engineer would prepare a comparative statement and
send to the competent controlling office for acceptance. He also
deposed that at the relevant time Superintendent Engineer
(accused) was the concerned approving authority of these
18
tenders. He also deposed that if the competent authority could
not take a decision within stipulated time it would be the fault of
the competent authority. To a pointed question asked by the
prosecution, the witness replied that if tender document lost
validity it has to be informed in writing to extend the validity.
24.
General,
DW 3 Sri A.K. Gupta, a retired Deputy Director
BSNL
deposed
that
he
knew
the
accused
and that he was an honest and competent officer. He also
exhibited a letter (Ext V) issued by the then Director, Planning,
BSNL. In the letter the accused was certified to be an honest and
competent officer. He however admitted that the Ext V did not
bear any date.
25.
DW 4 Sri Mantu Karmakar, Executive Engineer, BSNL,
Civil, Silchar deposed that on the date of occurrence, that is on
28.1.08, he was working in the office of the S.E, BSNL, Civil,
Silchar (accused). The S.E office was situated at the first floor of
the building and the chamber of the S.E was situated to the
extreme opposite of the room in which he and others used to sit.
He also deposed that to signal anybody standing in the ground
floor, one has to come out and go down the stairs. He also
deposed that the drawer on the right side of the table of the S.E
was accessible by any person going into the chamber. During the
relevant time he was Sub-divisional Engineer, BSNL, Civil, Silchar.
During cross examination by the prosecution he stated that the
accused holds a superior post than him in the department. He
denied the suggestion that he was never posted in the concerned
S.E office
at
Silchar.
He also pleaded ignorance about
19
approximate carpet area of the concerned floor. He also stated
that corridor of the building has no covering. He however, denied
the suggestion that he was deposing falsely as tutored by the
accused.
26.
Let me now appreciate the evidence on record vis-à-
vis the points for decision and the issues raised by both sides.
27. Sanction for prosecution of the accused was given by
the PW 1 when he was the Chairman and Managing Director of
BSNL. Admittedly, he was the highest authority in BSNL at the
relevant time. Defence plea, as unfolded by DW 1 & 3, however,
was that since the accused was subsequently absorbed in BSNL
from Department of Telecom, in his case the sanction ought to
have been obtained from the said department. There was
however, no denial of the fact that PW 1 who gave sanction for
prosecution was the highest authority of BSNL at the relevant
time. Provision of Section 19(3) of the Act, in this situation,
appears to be relevant. In a somewhat similar matter, Hon’ble
Supreme Court in “R. Venkatkrishnan Vs CBI, (2009) 11
SCC 737” held as under:- “… In our considered opinion even if
we assume for the sake of argument that the Chairman-cumManaging Director of NHB, Sri R.V.Gupta was not the competent
authority to pass orders of sanction against the officials of NHB,
the prosecution could still rely on the said section 19(3) of the
Act, especially since there has been no failure of justice in the
present case by the said error in the orders. The contentions of
the accused, as to the validity of the sanctioning orders, in view
of the said sub-section must be rejected.” In the instant case
20
there is absolutely nothing to show that any failure of justice was
caused even if it is assumed that there was error in sanction
order. The defence plea of absence of proper legal sanction is
therefore not tenable.
28.
The existence of motive for payment or acceptance
of bribe is indeed a relevant fact in a case of this nature, as has
been argued by the defence by citing the decision of Hon’ble
Supreme Court in “Madan Mohan Singh Vs State of Uttar
Pradesh, AIR 1954 SC 637”. According to defence, the
tenders in question had already lost validity and hence there
could not be any reason for the complainant to offer bribe as
there was no reason for the accused to demand bribe. Let me
now look at the relevant evidence to appreciate this point. PW 5,
Sri Mridul Bhusan Deb, an officer posted in BSNL, Civil, Silchar
deposed that the jurisdiction of BSNL, Civil, Silchar extended to
Manipur, Arunachal Pradesh and Nagaland and the accused, at
the relevant point of time was, admittedly, the S.E of Civil Circle
of BSNL, Silchar. It was also not denied that construction of
concerned USO towers fell under the jurisdiction of the accused
at the relevant time. PW 5 further deposed that the Executive
Engineer of the respective division used to invite tender for
construction of USO towers and Sri Sanjoy Kumar was the
concerned Executive Engineer who floated notice inviting tenders
after completing all formalities. He further deposed that as the
amount involved was beyond Sri Kumar’s jurisdiction, the
tenders, ultimately, had to be accepted by the Superintendent
Engineer which post was held by the accused at the relevant
21
time. He also deposed that the files containing all relevant papers
were seized by the CBI from the office of the accused vide
seizure memo Ext 15. Ext 16 to 22 were the files containing the
relevant tender papers. During cross examination, the witness
stated that the validity of a tender is 60 days from the date of
opening of the tender and Ext 16 to 22 were opened on 16.6.07
and by that calculation the tenders lost validity on 14.8.07.
Pointing to this defence claimed that the tenders already lost
validity and as such there was no motive for giving or acceptance
of bribe. But the witness also stated that the date of the letters
for revalidation submitted by the complainant was 10.8.07 which
is evidently before the expiry. PW 5 further deposed that
subsequently, after the arrest of the accused the new S. E
accepted the tenders. It was therefore, clear that the tenders, in
any case did not reach any such stage from where these could
not be revalidated. The concerned Executive Engineer Sri Sanjoy
Kumar was examined as PW 8. He admitted having written a
letter dated 22.1.08 (Ext 3) to the complainant asking the
complainant to meet the S.E, BSNL, Civil, Silchar in his office.
Needless to mention that at the relevant time accused Sri Kansal
was the S.E. From the above evidence it appeared that the letter
to meet the S.E accused Sri Kansal was written long after the
alleged date of expiry of the tenders. This clearly indicated that
practically it was still under the power of the authority, that is,
the accused, to extend validity of the tenders. DW 2, a senior
Officer of the BSNL stated that after expiry of the validity of
tenders it is “advisable to recall the tenders instead of extending
22
the validity if the rates are higher.” He further deposed that the
accepting authority is to decide whether to extend the validity.
The facts/procedure which transpired from the testimony of PW
5, 8 and DW 2 was that there was no absolute bar on
revalidation of tender and in the present case the power to
extend validity of tenders was with accused Kansal. That apart,
from testimony of DW 2 it appeared that the matter of tenders
loosing validity was to be informed in writing. The aforesaid
evidence clearly pointed to the existence of motive and so far as
the complainant was concerned he had every reason to believe
that the tenders could be revalidated by the accused. The fact of
the matter was that ultimately the tenders were revalidated by
the officer Sri S.P.Ram who succeeded the accused in his office.
There was absolutely no iota of evidence to show that Sri Ram
was trying to settle some old score with the accused, as
suggested by the defence. Moreover, though the relevant files
containing the concerned tenders were not seized from the
personal possession of the accused, these were, indeed, seized
from his office. The authority of any office is not expected to
keep all the files under his personal custody. He would definitely
ask his sub-ordinates to keep the files. From the above it
transpired that there existed motive for payment or acceptance
of bribe. The plea of not calling the complainant directly by the
accused was also not found tenable. Admittedly, the concerned
Executive Engineer (PW 8) wrote a letter to the complainant (Ext
3) requesting him to meet the accused in his office. Further
complainant deposed that when he was found to be lowest
23
tenderer he was called in the chamber of S.E (accused) in the
month of November, 2007 at Silchar for rate negotiation and
when he met him, he (accused) demanded bribe/ commission of
4.5% of the total work value in order to ensure that he gets the
work. He further deposed that later, again Executive Engineer
asked him to meet the S.E on 25.1.08 though the complainant
expressed his inability to meet the S.E on that date. The defence
could not bring any perceptible evidence to show that the
complainant had previous enmity with the accused and in view of
the enmity he was planning to falsely implicate the accused. The
defence stated that the TLO Sri Mang and the complainant being
from the same town, connived to trap the accused. This plea in
absence of any valid ground or fact could not be believed. It is
difficult for any ordinarily reasonable person to believe that the
fact that two persons are from same town would be close friends
so much so that they would conspire to trap an innocent person
in a false case. During cross examination of the complainant (PW
2), defence suggested that he conspired with the Executive
Engineer and other BSNL officials for lodging false FIR against
the accused. Complainant denied the suggestion and on
consideration of the materials on record there appeared no such
fact which can point to such a conspiracy. This defence plea is
therefore, not acceptable.
29. The defence plea that the accused was made to count
the currency notes after recovery did not appear to be
acceptable for the following reasons. Indeed, two prosecution
witnesses namely, PW 6 and 9 stated during cross examination
24
that after recovery, accused was asked to count the money. But
such statement of these two witnesses did not appear to me to
be trustworthy for the following reasons. Firstly, no other
witnesses stated so and there was no reason to disbelieve all the
remaining witnesses. Secondly, it would be foolish for the TLO or
other CBI officers present, to ask the accused to count the
money after recovery. These two witnesses appeared to have
tilted towards the accused during cross examination.
30.
Regarding recovery of money there did not appear
any major variation in the testimony of the prosecution
witnesses. There was also no such credible evidence to show
that the money was planted in the drawer of the table of the
office of the accused. In regard to handing over of money on
demand to the accused, testimony of the complainant and
shadow witness PW 7 were of vital importance because at the
relevant time apart from the accused, only complainant and PW
7 were present in the chamber of the accused. The complainant
(PW 2) deposed that at the relevant time he was accompanied
by PW 7 and after he handed over the money to the accused on
demand, PW 7 gave signal to other trap team members who
thereafter went inside the chamber of the accused. The TLO PW
13 deposed that when the trap team reached the office of the
accused in the afternoon of 28.1.08, complainant and shadow
witness proceeded to the chamber of the accused but
complainant soon after informed through SMS that the accused
was not in office and would arrive after some time. The trap
team was therefore waiting. After some time complainant
25
informed that the accused had arrived and immediately all the
members of the trap team became alert. Defence took a plea
that during the absence of the accused in the chamber,
complainant and the shadow witness entered in to the chamber
of the accused and kept the packet containing money in the
drawer of the table of the accused. During examination-in-chief
the shadow witness PW 7 was declared hostile by the
prosecution. He was specifically suggested by the defence,
during cross examination, that in absence of the accused in his
chamber, the packet containing money (M.Ext 4) was kept inside
the drawer. He clearly denied the suggestion. It would therefore,
be absurd to believe that the money was planted in the drawer
of the accused. During cross examination by the prosecution, PW
7 admitted that there was conversion, at the relevant time,
between complainant and the accused regarding towers and
monetary matters.
31.
Further defence plea, that prosecution could not
prove that only the currency notes containing phenolphthalein
powder was given to complainant and that M.Ext 4 containing
currency notes in question were handed over to the complainant
during the pre trap proceeding, did not appear to be acceptable.
Indeed there were some variations in the testimonies of the
witnesses as to whether the money was wrapped in a packet at
the time of handing over to the complainant. PW 2, 10 & 13
stated that money was handed over to the complainant after
pre-trap proceeding whereas PW 6, 9 & 7 stated that money was
kept in an envelope/ packet while handed over to the
26
complainant. This type of variation would only be natural in view
of the fact that power of observation differs from person to
person. Moreover when testimony in court is recorded after
considerable period of time (after about 4 to 5 years), such
variation is bound to creep in. While dealing with variations in
oral testimony, Hon’ble Supreme Court in “State of
Maharashtra Vs Siraj Ahmed Nisar Ahmed, (2007) 5 SCC
161” stated as under:- “While appreciating evidence, the court
must keep in mind that the power of observation differs from
person to person. What one may notice, other may not……..
Minor discrepancies on trivial matter not touching the core of
matter in issue, hyper technical approach by taking sentence out
of context here or there from the evidence, attaching importance
to some technical error committed by the investigating officer
not going to the root of the matter, would not ordinarily permit
rejection of the evidence as a whole.” Hence, while appreciating
the evidence, the facts narrated by the witnesses are to be
considered in totality and not by detaching the sentences out of
context. Pointing to the variations, as mentioned above, defence
sought to challenge the credibility of the entire prosecution case.
But I have not found any such core variation which could touch
the root of the entire case. If money is given to someone by
putting the currencies in an envelope, some may simply state so
by telling that “money was handed over” whereas some may give
details. The fact of the matter was that from the testimony of PW
13 and other relevant witnesses it was clear that the money that
was recovered from the drawer of the accused were the same
27
currencies that were recorded in the Annexure of the Pre-trap
memorandum and was given to complainant to hand over to the
accused on demand . PW 6, an independent witness, stated as
under:- “I say that it is the same amount of money/ currency
notes that was recovered from the drawer of Sri S.K.Kansal on
the said day.” From appreciation of evidence, in this regard, it
was, therefore, clear that the currency notes that were handed
over to complainant during pre-trap proceeding were the
currencies that were recovered from the drawer of the accused.
The mere fact of accused’s absence in his chamber when the
complainant and the shadow witness first approached the office
of the accused, could not be understood in a manner that during
that period money was planted. We have to keep in mind that it
was an office and there were other employees present in the
office. That apart, testimony of the complainant and shadow
witness were completely believable, in that respect, that when
the accused came to office, they entered the chamber and after
some brief conversation, money/ bribe was handed over to the
accused. It was therefore clear that the accused received the
money which was not legally payable to him. Therefore, it has to
be presumed, in view of provision of section 20 of the Act, that
the accused accepted the bribe, unless the contrary is proved.
No such proof or explanation could be given by the accused
which could rebut the presumption u/s 20 of the Act. Indeed,
DW 4, an officer of BSNL, stated that the drawer of the table of
the accused was accessible to any person who may enter there.
Another witness PW 5, an officer in BSNL office, Silchar stated,
28
during cross examination, that on the day and time of the
occurrence the complainant and another person went to office to
meet the accused and without meeting him they entered into the
chamber during the absence of the accused but he asked him to
wait outside the chamber. This did not mean that the
complainant, in fraction of moments, would plant money.
Moreover, if the complainant had any intention to plant money in
the drawer of the accused, he would not have stated in his
testimony that when he first went with the shadow witness the
accused was not present and accused came after some time. PW
7
shadow
witness,
also
specifically
denied
the
defence
suggestion that money was kept in the drawer in the absence of
the accused. There was absolutely no evidence to show that he
had any enmity with the accused. Rather, he resiled from
substantial part of his statement given to the I/O for which he
was declared hostile by the prosecution.
32.
In view of the above, it appears that the prosecution
has been able to prove beyond reasonable doubt that on 28.1.08
the accused was a public servant and on that day as a motive or
reward for accepting the concerned tenders he accepted Rs.1 lac
from the complainant as gratification which he was not legally
entitled to. It has also been proved beyond reasonable doubt
that the accused, on the aforesaid date, committed criminal
misconduct by obtaining for himself Rupees one lac from the
complainant by corrupt or illegal means. The accused Sri Sanjeev
Kumar Kansal is therefore held guilty u/s 7 and 13(2) read with
29
13(1)(d) of the Prevention of Corruption Act, 1988. He is,
therefore, convicted u/s 7 and 13(2) of the said Act.
33.
The accused Sri Sanjeev Kumar Kansal is heard on the
matter of sentence. He stated that he has wife and school going
children who are staying with him and that he is the only bread
earner of his family. He also stated that after conviction he would
loose his job and as a result there will be immense financial
hardship. He also stated that his parents are also seriously ill. He
also stated about his own illness and has pleaded for leniency.
34.
Considering the facts and circumstances of the case and
the statement made by the accused during sentence hearing,
accused Sanjeev Kumar Kansal is sentenced to R.I for two years
and to pay a fine of Rupees Two lacs, in default of payment of
fine, to further imprisonment for six months u/s 7 of the P.C. Act,
1988. He is further sentenced to R.I for one year and to pay a
fine of Rupees One lac, in default of payment of fine, to further
imprisonment for four months u/s 13(2) of the P.C. Act, 1988.
The substantive part of the sentence of imprisonment shall run
concurrently. Furnish a copy of the judgement to accused/
convict, free of cost, immediately.
Given under the hand and seal of this court, this 6 th day of
April, 2015.
Special Judge, CBI Court
Assam, Guwahati
30
31
ANNEXURE
List of Prosecution Witnesses :
Sl. No.
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
Witness No.
PW-1
PW-2
PW-3
PW-4
PW-5
PW-6
PW-7
PW-8
PW-9
PW-10
PW-11
PW-12
PW-13
PW-14
Name of the Witness
Sh.
Sh.
Sh.
Sh.
Sh.
Sh.
Sh.
Sh.
Sh.
Sh.
Sh.
Sh.
Sh.
Sh.
Kuldeep Goyal
Benjamin Papao Thouthang
M. Ramo Singh
H. R. Deb
Mridul Bhushan Deb
Prabhat Ch. Rudrapal
Natum Singh
Sanjay Kumar
Debashis Das
T. L. Zamang
Bimal Chandra Purkait
Ajay Kumar Mittal
M. T. Mang
Raja Chatterjee
List of Defence Witnesses :
Sl. No.
1.
2.
3.
4.
Witness No.
DW-1
DW-2
DW-3
DW-4
Name of the Witness
Sh.
Sh.
Sh.
Sh.
A. M. Gupta
Sudershan Kumar Babbar
Ashok Kumar Gupta
Mantu Karmakar
32
List of Prosecution Documents :
Sl. No.
Exhibit No.
Nature of Documents
1.
2.
3.
4.
5.
6.
Ext.1
Ext.2
Ext.3
Ext.4
Ext.5
Ext.6
Prosecution Sanction Order.
Complaint dt.27.01.2008.
Letter dt.22.01.2008.
Pre trap memo.
Tender Document.
Annexure in respect of denomination of G.C.
7.
8.
9.
10.
11.
Ext.7.
Ext.8
Ext.9 to Ext.14
Ext.15
Ext.16 to Ext.22
Notes.
Post trap memo.
Sketch Map.
Tender Documents.
Seizure Memo.
BSNL Files regarding calling of tenders for USO
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
31.
32.
33.
34.
35.
36.
37.
38.
39.
40.
41.
42.
43.
Ext.16/1
Ext.17/1
Ext.17/3
Ext.17/4
Ext.18/1
Ext.18/3
Ext.18/5
Ext.19/1
Ext.19/3
Ext.20/1
Ext.20/3
Ext.20/5
Ext.21/1
Ext.21/2
Ext.22/1
Ext.22/3
Ext.23
Ext.24
Ext.16/3
Ext.16/5
Ext.17/7
Ext.17/9
Ext.17/11
Ext.18/9
Ext.18/11
Ext.18/13
Ext. 19/5
Ext.19/7
Ext.19/9
Ext.20/7
Ext.20/9
Ext.20/11
towers.
Letter dt.03.07.2007.
Notesheet.
Letter dt.03.07.2007.
Seal of SE, BSNL, Civil Circle, Silchar.
Notesheet
Letter dt.03.07.2007.
Seal of SE, BSNL, Civil Circle, Silchar.
Letter dt.03.07.2007.
Seal of SE, BSNL, Civil Circle, Silchar.
Notesheet
Forwarding letter dt.03.07.2007.
Seal of SE, BSNL, Civil Circle, Silchar.
Letter dt.03.07.2007.
Official Seal.
Letter dt.03.07.2007.
Official Seal.
Seizure-cum-Production Memo.
Seizure Memo.
Scrutiny Note.
Comparative Statement.
Scrutiny Note.
Market Rate.
Comparative Statement.
Comparative Statement.
Justification Statement
Basic Rate.
Scrutiny Note.
Comparative Statement.
Justification Statement
Scrutiny Note.
Comparative Statement.
Justification Statement.
44.
45.
Ext.20/13
Ext. 21/5
Basic Rate.
Scrutiny Note.
33
46.
47.
48.
49.
50.
51.
52.
53.
54.
55.
56.
57.
58.
59.
60.
Ext.21/7
Ext.21/9
Ext.21/11
Ext.22/5
Ext.22/7
Ext.22/9
Ext.25
Ext.26
Ext.27
Ext.28
Ext.29
Ext.30
Ext.31
Ext.32
Mark X
Comparative Statement.
Justification Statement
Basic Rate.
Scrutiny Note.
Comparative Statement.
Justification Statement
Verification report.
C.F.S.L. Report.
Forwarding Letter.
F.I.R.
Forwarding Letter.
Forwarding Letter.
Forwarding Letter.
Charge sheet.
Document.
List of Defence Exhibits :
Sl. No.
Exhibit No.
Nature of Documents
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
Ext.A to Ext.F
Ext.A/1 to Ext.F/1
Ext.G
Ext.H
Ext.I to Ext.O
Ext.P
Ext.Q
Ext.R
Ext.S
Ext.S/1
Tender Agreements.
Letters of validation.
Search List.
CBI Manual.
Statements recorded u/s 161 Cr. P.C.
R.T.I. Reply.
Reply of P.I.O., FCI
R.T.I. Copy.
BSNL Conduct, Discipline and Appeal Rules.
Rule 43 of BSNL Conduct, Discipline and Appeal
11.
12.
13.
14.
15.
Ext.T
Ext.U
Ext.V
Mark X/3
Mark X/4
Rules.
A.C.R. Folder.
C.V.C. Circular.
Letter.
Absorption Letter.
Appointment letter.
34
List of Material Exhibits :
Sl. No.
Exhibit No.
Nature of Documents
1.
2.
Mat. Ext.1
Mat. Ext.1/2 to
Sealed Envelope.
Currency Notes.
3.
Mat. Ext.1/176
Mat. Ext.2 & Mat.
Bottles containing and wash.
4.
Ext.3
Mat. Ext.2/3 &
Seals of C.F.S.L.
5.
6.
Mat. Ext.2/4
Mat. Ext.4
Mat. Ext.5
Packet.
Seal Impression.
Special Judge, CBI
Assam, Guwahati