* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Bail Application No.885/2011
% Reserved on: 27th July , 2011
Decided on: 2nd August, 2011
Purushottam Dev Arya ..... Petitioner
Through: Mr. Sandeep Sethi, Sr. Advocate with
Mr. L.R. Luthra, Adv.
versus
Central Bureau of Investigation ..... Respondent
Through: Mr. Dayan Krishnan with
Mr. Gautam Narayan, Advs.
Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA
1. Whether the Reporters of local papers may Not Necessary
be allowed to see the judgment?
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported Yes
in the Digest?
MUKTA GUPTA, J.
1. By this application, the Petitioner seeks anticipatory bail in case RC-
DAI-2010-A-0044 for offences under Section 120B read with Sections
Bail Appl.No.885/2011 Page 1 of 8
420/467/468/471 IPC and Section 13(2) read with Section 13(1)(d) of the
Prevention of Corruption Act, 1988.
2. Learned counsel for the Petitioner contends that the entire case was
allegedly opened initially on the complaint of one Sangeeta Goyal. Pursuant
to the complaint of Ms. Sangita Goyal, a letter was written by the CEO of the
Organizing Committee to Shri Bhatnagar, the Joint Secretary in the Ministry
of Sports explaining that there was no illegality or irregularity in the contract
awarded to M/s Swiss Timing Ltd., Switzerland (STL). The matter was
examined by the members of various Committees including the Executive
Board, the Finance Sub-Committee. Thus, the project was neither cleared by
Mr. Bhanot nor Mr. Kalmadi against whom allegations of conspiracy have
been made. The allegation of the prosecution that the contract was structured
to favour STL is unfounded as there is no evidence with the CBI to show that
the contract was structured in favour of STL . It is alleged that the
prosecution has no evidence by way of document or otherwise to show that
the contract was deliberately awarded to the company with mala fide
intention. The contentions of the STL have not been heard. There was no
complaint from any of the athletes that timings were incorrect. The third
allegation of inflating the price is also unfounded. No decision can be taken
thereon on the basis of opinion of 2 individuals, who themselves are not
Bail Appl.No.885/2011 Page 2 of 8
experts in the field. The best test to decide the price of the contract is on th
principle of demand and supply. Despite number of Committees and large
number of people, who were over all incharge, none found any illegality or
irregularity in the contract. In India earlier also numbers of games have been
organized by the STL successfully.
3. The allegation that the Petitioner did not join the investigation is wholly
incorrect. The Petitioner was interrogated/ joined in investigation four times.
Pursuant to the notice issued, whatever documents were asked, they were sent
by courier and the courier receipt shows that 3 Kg. documents were sent.
Reliance is placed on Siddharam Satlingappa Mhetre v. State of Maharashtra
and others, AIR 2011 SC 312 to say that balance deserves to be maintained
between frivolous allegations and liberty at the stage of anticipatory bail.
Reliance is also placed on Yogender Pratap Singh v. State, 2009 (2) JCC 1314
to contend that if the process under Section 82 Cr.P.C. is mala fide then the
Petitioner can approach the Court for anticipatory Bail.
4. Learned Special Public Prosecution on the other hand contends that the
case of the prosecution demonstrates a conspiracy being hatched pursuant to
which initially an attempt was made to award the contract to M/s STL by
nomination, and thereafter the contract was awarded to STL on the basis of
tailor made conditions so as to oust all other competitors at the pre-qualifying
Bail Appl.No.885/2011 Page 3 of 8
stage. It is stated that EOI was issued without any inputs from the concerned
division i.e. Technology Functional Area, mentioning that “only Swiss
Timing-Omega meets out above all criteria”. Thereafter, RFP was issued on
1st October, 2009 and the conditions framed thereunder were so as to further
restrict competition in favour of STL. In order to preclude any other company
except STL from clearing the pre-qualification stage, the RPF conditions were
altered in a non-transparent manner on 4th October, 2009 on the written
directions of Mr. V.K. Verma through his note dated 3rd October, 2009. In
response to the RFP, 2 bids were received, one from STL and the other from
M/s MSL, Spain (MSL). In a pre-meditated manner MSL was wrongfully
eliminated at the pre-qualification stage, thus, making the process virtually a
single tender. STL was awarded the contract at exorbitant rate of `107 crores
causing huge undue loss to the Government of India. It is also contended by
learned Special Prosecutor that during investigation it has been revealed that
M/s Gem International, whose partners are Anil Kumar Madan and P.D. Arya,
was acting as some sort of agents/associates of M/s STL in the matter of
dealing with the Organizing Committee and huge amounts were transferred by
M/s STL to M/s Gem International on the pretext of its carrying out some sub-
contractual work relating to provision of TSR solution for CWG 2010. M/s
Gen International received at least `23 crores from STL on the basis of
Bail Appl.No.885/2011 Page 4 of 8
generic, vague, lump sum and incorrect invoices, which do not contain rates,
quantities or details of works carried out by them. It has further been revealed
that the invoices are false and are not based on genuine commercial
transactions.
5. I have heard learned counsel for the parties. A perusal of the charge
sheet and the documents enclosed and statement of witnesses show that the
Petitioner and his concern M/s Gem International were not merely sub-
contractors rather they actively participated as authorized representatives of
M/s STL even before the RFP was announced. The Petitioner did not appear
for investigation on the ground that since the co-accused Anil Kumar Madan
had gone to Switzerland for treatment, he had accompanied him as an
attendant.
6. The Petitioner initially responded to the notices, i.e., when search were
conducted, he was present and was interrogated. However, it is apparent that
in order to avoid investigation, he went to Switzerland as an attendant of Mr.
Anil Kumar Madan, who had gone there for his treatment. Even after coming
back from Switzerland, the Petitioner and co-accused Anil Kumar Madan
have avoided investigation. The Petitioner did not appear pursuant to a notice
issued on 4th April, 2011 ostensibly on the ground that he had gone along with
A.K. Madan for his treatment to Switzerland. However, as per the objections
Bail Appl.No.885/2011 Page 5 of 8
filed to the order of proclamation, the Petitioner and co-accused Anil Kumar
Madan had returned to India on the 4th April, 2011. Further for a notice for
appearance on the 27th April, 2011, it was replied that he was not in Delhi,
however an affidavit of the Petitioner filed in WP(Crl.) No.596/2011 has been
sworn on 27th April, 2011 demonstrating that he was, thus, in Delhi.
7. The Petitioner along with co-accused Anil Kumar Madan were
authorized representative of M/s STL and thus, it cannot be said that the
Petitioner’s firm was mere a sub-contractor and had no role to play in the
initial transaction. A perusal of the statement of witnesses i.e. PW1, PW2 and
PW3 shows that the Petitioner along with co-accused Anil Kumar Madan and
other officers of STL visited the stadia even in 2009 along with the officers of
Organizing Committee. The pre-bid conference in respect of TSR was
attended by co-accused A.K. Madan on behalf of M/s STL. In fact, the bid
was submitted by co-accused A.K. Madan only. As regards awarding of sub-
contract to AKR though learned counsel for the Petitioner has strenuously
argued that the invoices were raised to justify the payment, however, they
were found to be bogus as invoices had been raised even in respect of game of
shooting though the contract of laying of cables in respect of shooting was not
awarded by the Committee but by the Sports Authority of India. Though the
Petitioner being a partner of M/s Gem International contends that there was no
Bail Appl.No.885/2011 Page 6 of 8
bar to a sub-contract, however, the contract entered between the OC and M/s
STL clearly stated that before entering into a sub-contract, the party will take
prior approval/intimation to the Committee.
8. The initial attempt of the OC was to award the contract to M/s STL by
nomination. However, when a number of complaints were received from
persons like Smt. Sunita Goyal, the tender conditions were prepared in a
clandestine manner so as to exclude all other companies. Even after the
request for proposal (RFP) was published, amendments were made therein
fraudulently. As per the statement of witnesses, the Petitioner and his co-
accused Anil Kumar Madan were frequenting the office of OC even in 2009
prior to the initiation of the procurement process for the system.
9. The Petitioner has not cooperated in the investigation. Though charge
sheet has been filed, however, on the basis of additional evidence required to
be collected from the Petitioners, supplementary charge sheet may be required
to be filed. Reliance of the Petitioner on the decision rendered in Siddharam
Satlingappa Mehtre (supra) is misconceived as the offence is grave and
serious in nature. There is material on record against the Petitioner. Further
in Siddharam Satlingappa Mhetre (supra) a word of caution has been laid
down that while granting anticipatory bail to the accused person the gravity of
accusation, nature of offence and role of accused person must be
Bail Appl.No.885/2011 Page 7 of 8
comprehended and kept in mind. Therefore, in view of the facts of the present
case, the relief as sought in terms of Siddharam Satlingappa Mhetre (supra)
cannot be granted to the Petitioner herein, as on the basis of evidence
collected at this stage it cannot be said that no case for conspiracy is made out
and money trail has to be unearthed.
10. In view of these facts, I do not find it to be a fit case to grant
anticipatory bail to the Petitioner. The application is dismissed.
(MUKTA GUPTA)
JUDGE
AUGUST 02, 2011
vkm
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