Criminal Revision No. 501 of 2016. Case: Mayadhar Panigrahi Vs State of Orissa (Vig). High Court of Orissa (India)
| Case Number | Criminal Revision No. 501 of 2016 |
| Counsel | For Appellant: D.P. Dhal, B.S. Dasparida, S.K. Dash, S. Mohapatra and A. Tripathy, Advs. and For Respondents: Sangram Das, Standing Counsel |
| Judges | S.K. Sahoo, J. |
| Issue | Code of Criminal Procedure, 1973 (CrPC) - Sections 173, 207, 209, 227, 228, 239, 240, 482; Constitution of India - Article 226; Indian Penal Code 1860, (IPC) - Sections 120B, 420; Prevention of Corruption Act, 1988 - Sections 13(1)(d), 13(2) |
| Judgement Date | February 14, 2017 |
| Court | High Court of Orissa (India) |
Judgment:
S.K. Sahoo, J.
1. The petitioner Mayadhar Panigrahi who was the Project Director of Odisha Health System Development Project (hereafter for short 'OHSDP') has challenged the impugned order dated 30.05.2016 passed by learned Addl. Special Judge (Vigilance), Bhubaneswar in T.R. No. 42 of 2010 in rejecting the petition under section 239 of Cr.P.C. filed by the petitioner for discharge. The said case arises out of Bhubaneswar Vigilance P.S. Case No. 28 of 2008 in which charge sheet has been submitted under section 13(2) read with section 13(1)(d) of the Prevention of Corruption Act, 1988 and section 420 read with section 120-B of the Indian Penal Code.
2. On 30.06.2008 Shri G.R. Mohanty, Deputy Superintendent of Police, Vigilance Cell Unit, Bhubaneswar submitted the first information report before the Superintendent of Police, Vigilance, Bhubaneswar Division, Bhubaneswar stating therein that in connection with the irregularity committed in the implementation of 'OHSDP', a World Bank assisted project pertaining to supply of drug and medical consumable, an inquiry was taken up and during course of inquiry, it was revealed that on 21.08.2004, the petitioner as Project Director of OHSDP invited National Competitive Bids (NCB) for forty-two types of drugs and ten types of medical consumables. In response to the notice inviting tender, sixty-four tenders were received. The tenders were placed before the Bid Evaluation Committee (BEC) consisting of Director, Health Services, Director, Medical Education and Training, Director, Family Welfare, Asst. Drug Controller, Asst. Director, EPM, Dy. Director, SDMU, Joint Director and Asst. Director of OHSDP on 22.12.2004. Out of forty-two Nos. of drugs and ten Nos. of medical consumables, the BEC selected twenty-four Nos. of drugs and eight Nos. of medical consumables. Among the rejected items, Gamma Benzene Hexa Chloride was one, as BEC found bids of all the four bidders to be non-responsive and the comparative statement of the bids for the said item was as follows:-
1. M/s. Trimurty Chemicals, Cuttack Rs. 14,13,120.00 (L-1)
2. M/s. Daffodils Pharmaceuticals Ltd., Meerut Rs. 46,08,000.00 (L-2)
3. M/s. Glenmark Pharmaceuticals Ltd., Nasik Rs. 57,60,000.00 (L-3)
4. M/s. Nicholas Piramal India Ltd. Rs. 74,84,160.00 (L-4)
The file on the recommendations of BEC was sent to the Minister of Health, Orissa on 19.01.2005 for approval. M/s. Glenmark Pharmaceuticals submitted a letter to the Minister of Health for consideration of their tender on the strength of documents submitted after the bid evaluation and the same letter was sent to the petitioner by the Minister of Health for consideration on 04.02.2005. In violation of the terms and conditions of the bid document, Dr. Sugat Kar, Jt. Director, OHSDP who was the Convener of the BEC has shown to have issued letters specifically to two firms namely M/s. Glenmark Pharmaceuticals Ltd. and M/s. Daffodils Pharmaceuticals Ltd. for submitting additional documents. It is further stated that the OHSDP officials cleared the matter by fabricating records in favour of M/s. Glenmark Pharmaceuticals Ltd. and the same was placed before BEC on 26.05.2005 and finally the higher rate of Rs. 300/- per unit (each unit containing 20 bottles of 100 ml.) against the lowest rate of Rs. 73.60 paisa per unit was approved and the order was placed with the firm M/s. Glenmark Pharmaceuticals Ltd. vide No. WC0176 5202 dtd. 21.06.2005. The firm supplied 19,200 Units (3,84,000 bottles) and received payment of Rs. 59,44,370/- (the cost being Rs. 57,56,058/-) as a result of which the Govt. has sustained loss of 43,46,880/- by discarding the L-1 tender in violating the norms and procedure of the rules as well as the guidelines adopted in the OHSDP purchase matters. L-1 M/s. Trimurty Chemicals was considered non-responsive due to want of WHO-GMP certificate.
It is further stated in the F.I.R. that M/s. Trimurty Chemicals being an ISO 2000 GMP certificate holder had supplied 1,32,380 bottles of Gamma Benzene Hexa Chloride @ Rs. 2.73 per bottle of 100 ml. total amounting to Rs. 3,63,780/- to the Health Department and the officials like Director of Health Services, Orissa as well as the members of the BEC had approved the same item with much lower rate during the relevant period of 2004-05 but in the instant case, the officials incurred the huge loss of Rs. 43,46,880/- to the Govt. of Orissa which is consequent wrongful gain to M/s. Glenmark Pharmaceuticals Ltd. owing to the approval of higher rate of Rs. 300/- against the lower rate of Rs. 73.60p per unit.
It is stated that as per the conditions of the bid documents cited at Para 29.3 & 29.4, once non-responsive bids may not subsequently be made responsive and bid's responsiveness is to be based on the contents of the bid itself without recourse to extrinsic evidence. It is further stated in the first information report that the petitioner as Project Director, Dr. Sugat Kar, Jt. Director, Dr. Taramani Pattnaik, Asst. Director, all of OHSDP with other public servants have approved the higher rate and have shown favour to the supplier causing a loss of Rs. 43,46,880/-, entered into criminal conspiracy with M/s. Glenmark Pharmaceuticals Ltd. and have abused their official position in violation of the terms and conditions of the bid documents, rules, procedures and fabricated the records in favour of the supplier to derive pecuniary advantage.
3. On the basis of such first information report, Bhubaneswar Vigilance P.S. Case No. 28 of 2008 was registered under section 13(2) read with section 13(1)(d) of the Prevention of Corruption Act and sections 420/120-B of the Indian Penal Code.
During course of investigation, it was found that the petitioner as the Project Director of OHSDP published World Bank funded National Competitive Bidding Tender No. WB/OHSDP/04-05/D-06 dtd. 30.08.2004 for the procurement of forty-two Nos. of drugs and ten Nos. of medical consumables including the alleged drug code No. D-18002 Gamma Benzene Hexa Chloride + Cetrimide with specification GBH 1% w/v + Cetrimide, strength 0.1% w/v and unit pack 100ml/Bottle, 20 bottles/Box, which was widely published through local and national news papers. In response to the said tender, four bidders had submitted their bid papers addressing to the Project Director, OHSDP for the supply of Gamma Benzene Hexa Chloride + Cetrimide. As per their quoted rates during bid opening, M/s. Trimurty Chemicals, Cuttack, M/s. Daffodils Pharmaceuticals, Meerut, M/s. Glenmark Pharmaceuticals, Mumbai and M/s. Nicolas Pharmaceuticals, Mumbai were placed as L-1, L-2, L-3 and L-4 respectively.
It was also found during investigation that the petitioner formed a Bid Evaluation Committee consisting Dr. P.K. Senapati as convener and other members namely Dr. S.C. Mohapatra, DMET, Dr. B.K. Das, DFW, Dr. N.C. Samal, Asst. Drug Controller, Dr. J.C. Acharya, Jt. Director, Health Service (Medical), Dr. S. Kar, Jt. Director, OHSDP, Dr. A.K. Harichandan, Dy. Director, SDMU, Dr. Taramani Pattnaik, Asst. Director, OHSDP and Dr. L.D. Pradhan, MO O/o. SDMU. On 22.12.2004 the said Committee evaluated the bids of four bidders and rejected all the four bids on the ground that they did not qualify the criteria prescribed in the World Bank Tender Condition. The Committee found that the L-1 bidder M/s. Trimurty Chemicals, Cuttack did not supply performance value of the Company, L-3 accused firm M/s. Glenmark Pharmaceutical Ltd. was rejected as it submitted Drug License for aqua cense against the requirement of Cetrimide and the L-4 firm was rejected for not furnishing performance value. As per the World Bank tender condition vide Clause Nos. 29.3 & 29.4, if the bid was not found substantially responsive, it will be rejected and may not be made responsive by correction of non-conformity.
After the bid evaluation was over, Sri A.G. Prasad, Dy. General Manager, Institutional Sales, M/s. Glenmark Pharmaceuticals Ltd. sent a fax message dtd. 04.02.2005 requesting therein to give chance for submitting additional document, if the tender was short of any document and to consider his bid. This letter was acknowledged by Dr. Sugat Kar and Dr. Taramani Pattnaik, Asst. Director, OHSDP on 10.02.2005. Dr. Taramani Pattnaik, Asst. Director, Dr. Sugat Kar, Joint Director and the petitioner, all of OHSDP without mentioning the World Bank tender condition recommended that M/s. Glenmark Pharmaceutical Ltd. may be asked to submit the required deficient document and may be placed before the Evaluation Committee for consideration. Dr. Sugat Kar, Joint Director, OHSDP asked M/s. Glenmark Pharmaceuticals Ltd. (L-3) to submit the manufacturing license in letter No. 1302/OHSDP II-9/03-04 dt. 23.02.05. All of them intentionally did not issue any letter to L-1 firms M/s. Trimurty Chemicals, Cuttack and have discriminately shown to have issued two letters specifically to two numbers of firms instead of all the four firms.
It was also found during investigation that after obtaining fresh drug license from the accused firm M/s. Glenmark Pharmaceuticals Ltd., the petitioner recommended the matter for evaluation before the same Committee. Dr. Prasanta Ku. Senapati, Director, Health Service was the convener of the Committee and Dr. Bijayanand Mohanty, Dy. Director, SDMU along with Dr. Sugar Kar and Dr. Taramani Pattnaik were the other members of the said Committee. All of them were aware about the tender condition that accused L-3 firm cannot be considered on the basis of fresh documents. Dr. Senapati, Director, Health Service and Dr. Bijayanand Mohanty, Dy. Director, SDMU were aware that M/s. Trimurty Chemicals, Cuttack had supplied the same drug to all Govt. hospitals in the DHS Tender through SDMU having valid drug license during the relevant period. They were also aware that the same L-1 firm had offered the same drug having same specification in World Bank Tender for supply to the same govt. hospitals @ Rs...
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