- (1.) THIS third bail application is of an accused who was working as a Regional Manager in the U.P. Small Industries Corporation and is alleged to be involved in the infamous NRHM Scam for offences under Sections 120 -B, 409, 420, 468, 471 of the Indian Penal Code read with Section 13(2) and Section 13(1)(d) of the Prevention of Corruption Act, 1988.
(2.) THE allegations against the applicant were manifold and the learned Single Judge who heard the first bail application no. 21889 of 2012 filed by the applicant before this Court, rejected it on 3rd of September, 2013 by the following order: - "Hon'ble Virendra Vikram Singh,J. This is an application for bail moved on behalf of the accused -applicant Sanjiva Kumar involved in FIR No.RC 2(A)/2012 -CBI/SC II, under Sections 120 -B, IPC R/w Section 409, 420, 468, 471, IPC and Section 13(2) PC Act R/w Section 13(1)(d) PC Act, P.S. CBI, SC -II Delhi. The offence in question relates to NRHM Scam. This National Rural Health Mission (NRHM) scheme was launched by the Central Government to provide cheap and affordable health care to all persons residing in the villages and remote areas. In this regard, memorandum of understanding was entered into between the Central and U.P. Government. The substantial funds were provided by the Central Government, the Ministry of Health and Family Welfare and the remaining contribution was made available by the State Government. The State Government, which was to launch and execute the scheme, constituted the Central Purchase Committee under the supervision of the Director General (Family Welfare U.P.) who signed the MOU (Memorandum of Understanding) with the area office Small Scale Industries Corporation (UPSIC Kanpur) a Government of U.P. undertaking for the supply of Intra Urethral device kits, manual vacuum aspirator kits etc. The scam in question was brought to light by way of two PIL decisions whereby the CBI was ordered to probe into the matter. An inquiry was held by the agency and thereafter the report was lodged by the concerned officer. In this scam different persons involved played their own role and the ultimate result was that the supply of sub -standard items were made for gain of profits to the persons concerned and thus, the corruption of the persons involved and huge misappropriation of public money was detected. It has been submitted on behalf of the applicant that he was the Manager of the UPSIC and in his official capacity as such the only role assigned to him was that he recommends for grant of contract after inviting tenders from the parties concerned and the payment is made by the different authority. The applicant did not have any role in the scam nor their exist any evidence against him about taking of bribe. The entire work done by the applicant was in discharge if his official duties and no offence has been committed by him. The responsibility, if at all, can be assigned, lies on the part of Abhay Kr, Bajpai, the co -accused, who was head of the UPSIC and this co -accused has been refused bail by this Court. Shri Anurag Khanna, learned counsel for the CBI has argued that the applicant was in hand and gloves with the co -accused Saurabh Jain and in order to extend undue benefit to him after having taken illegal gratification from him the applicant has behaved in a manner, flouting all the provisions which unerringly indicate that the accused is guilty of the offence of misappropriation of public funds whereby the sub -standard and misbranded articles, supplied by Saurabh Jain were accepted at a rate which were many times more than the prevalent market rates. The instances of such collusion of the applicant is that on 4.10.2010 a letter for obtaining 75% of the advance was given to Saurabh Jain at the instance of the applicant. The applicant committed serious and objectionable procedure in inviting tenders. That tender should have been published in a newspaper having wide circulation. The applicant curtailed the period of tender to be one week only and on 14.10.2010 got it published in the newspaper, 'tender at a glance' which was published and supplied in Kanpur only and was a bi -weekly paper. As per rules the tender should have been received in two different envelops i.e. technical bid and secondly, the financial bid and only after the acceptance of technical bid the financial bid of selected persons should have been opened. The applicant received technical and financial tenders in the same envelope. Due to the wrong publication of the tender notice supply of these articles under NRHM Scheme could not be known to anyone except Saurabh Jain, who submitted three different tenders in the name of M/s. Guru Kripa Enterprises owned by Saurabh Jain himself, M/s. Siddhi Traders owned by his wife Smt. Rajni and M/s. Kapil Medical Agencies owned by Vivek Jain, cousin of Saurabh Jain. These tender forms were obtained without paying tender cost even. All the three agencies were formed just to obtain undue benefit, a huge amount under the NRHM scheme. M/s. Kapil Medical was registered with UPSIC on 20.10.2010 just a day before the submission of tender form. This firm was not registered as a manufacturer of non drug items. The Firm M/s. Guru Kripa Enterprises was registered with UPSIC on 4.10.2010 and it was suppose to deal with non medical items. Similarly M/s. Siddhi Traders was not dealing with the medical items. Despite all these technical flaws in the tender the applicant accepted the tender of these firms. It was also argued that these firms were not at all financial sound but the tender applications were considered by the tender committee in respect of four items to wit IUD kits, MVA kits, bathroom scale 150 kg. and bathroom scale 10 kg. M/s. Guru Kripa enterprises was declared as lowest tender. Similarly M/s. Kapil Medical Agencies was declared as lowest tender for four items. There are allegations against the applicant that the price quoted for the supply of these items were many times higher than the prevailing market price and PIP rates for these items. The supplier Saurabh Jain and Vivek Jain being in collusion with the applicant did not manufacture these items, but procured the low quality items from unbranded small dealers and after supply obtained crores of rupees causing huge loss to public money. There is also allegation against the applicant that while accepting the lowest tender bid the applicant even did not ensure the deposit of security deposit. An amount of Rs.1.5 crore was paid as advance by the applicant without production of bills and Rs. 2 crores were given to M/s. Guru Kripa Enterprises and M/s. Kapil Medical Agencies against unverified bills. The items supplied by these agencies were subsequently found to be sub -standard, misbranded and at exorbitant rates many times higher than the prevailing market rates. There also exist evidence that against the terms of contract the applicant did not impose the penalty on these firms for delayed supply. In view of the charges against the applicant, it prima facie appears evident that the applicant has flagrantly and deliberately ignored all the provisions for grant and acceptance of tenders and making payments to facilitate Saurabh Jain and thereby caused huge loss to the public fund. The allegation against the applicant on the face of it tell of some oblique motive which can be none else than the illegal gratification. Having considered the facts and circumstances of the case as also considering that the public money to such a high extent has been misutilised by the applicant and sub -standard and misbranded articles were accepted to be supplied, no case for bail is made out. The bail application is, hereby, rejected."
(3.) THE applicant filed a second bail application in which a counter affidavit was filed by the CBI. This second bail application no. 34603 of 2013 was filed on the ground that the co -accused Abhay Kumar Bajpai, who had been assigned a more grievous role has been enlarged on bail. This has been stated in Paragraph 20 of the second bail application. The age of the applicant, his ailment, period of incarceration and other factors were pressed into service in the second bail application, the main ground being of parity with Bajpai, and further that the applicant had no criminal antecedent. From the order -sheet of the second bail application, it appears that on nomination, the bail application was listed before a particular bench and on the joint prayer of the parties, the matter was adjourned on 23rd January, 2014. The counter affidavit was filed in the second bail application on 29.1.2014 and the applicant's counsel took time to file a rejoinder affidavit.;