- (1.)Since common questions of fact and law arise in these two petitions, they are being disposed of by a common order.
(2.)1st respondent, who is common in both the petitions, filed a complaint before the Principal Special Judge for Special Police Establishment (SPE) and Anti Corruption Bureau (ACB) Cases, Hyderabad against the petitioners and fifteen others, with a prayer to direct an investigation into offences under Section 13(1) (d) (ii) and (iii) of Prevention of Corruption Act, 1988 (for short 'the Act') and Sections 120-B and 409 IPC against them.
(3.)The allegations, in brief, therein are Andhra Pradesh Beverages Corporation Limited (APBCL), which has monopoly over wholesale trade of liquor in Andhra Pradesh as per Section 4 of Andhra Pradesh (Regulation of Wholesale Trade and Distribution and Retail Trade in Indian Liquor, Foreign Liquor, Wine and Beer) Act, 1993, procures various types of liquor and beer directly from the local distilleries on a rate contract basis and supplies the same to the retailers for a profit. To ensure supply of liquor and beer at a reasonable price to consumers, APBCL in its tender document for the excise years 1997-98 to 1999-2000 laid down a condition as clause 2.7, which reads:
"The tenderers shall quote the prices of their products on competitive basis. It shall be open to the Corporation to conduct negotiations with any or all tenderers, if necessary. The tenderers shall ensure that the basic rates quoted by them for their products should not be higher than the rates quoted for supply of the same brands to the other States. The tenderer shall furnish the rates at which their brands are being supplied to TASMAC/KBCL/MSIL with the details of basic, excise duty, sales tax given in the Annexure V.
While finalizing the contracts with the distilleries, officials of APBCL and other public servants, ignoring the said clause, favoured certain big distilleries and allowed them to sell their products at prices higher than the neighbouring States in Andhra Pradesh. APBCL purchased liquor worth Rs. 1,996.55 crores during 1997-98 and up to July 1999 from A-9, A-15 and A-17 by paying double the price for which those products are sold in Tamil Nadu. In fact, A-6 (petitioner in Crl.P.No. 5832 of 2003), who happens to be the Ex-Managing Director of APBCL, admitted in his counter-affidavit in W.P. No. 11581 of 2000 that APBCL wascompelled to pay higher prices to the distilleries as per the direction dated 18-06-1999 given by the Revenue Secretary, in reply to the letter by APBCL seeking clarification on the issue relating to purchase of stocks by paying higher price. In view thereof, it is clear that the above direction was given for 'collateral consideration', violating tender condition No. 2.7. Since excess payment to big liquor companies by APBCL was highlighted by the Press in March and April 2000 and became the subject of public criticism, APBCL reduced the purchase price for those products for the period 2000-01. Had APBCL strictly implemented clause 2.7 of the tender conditions, it would have purchased liquor at a rate lower than that was paid during the excise years 1997-98 to 1999-2000. Vigilance and Enforcement Wing of the General Administration Department, which conducted an enquiry into the excess payments mad e during 1997-98 gave a finding that liquor prices agreed to by the APBCL did confer pecuniary advantage to the tendering supplier of IMFL to APBCL to the detriment of the consumers and led to higher out go of its finances and unreasonable escalation of prices at retail level, and so it is prima facie clear that Rs. 200 crores was paid in excess by APBCL during 1997-98 itself. The total excess payment from 1997-98 to 1999-2000 would roughly be about Rs. 550 crores. All this happened because A-7 and A-8, who were the Managing Directors of APBCL during 1997-98, and A-6, who succeeded them in 1998-99, did not take proper interest and abused their position as public servants. A-6 (petitioner in Crl.P. No. 5832 of 2003), in spite of a Public Interest Litigation in W.P.No. 16423 of 1999 being filed, permitted purchase of liquor at high prices. A-2 (petitioner in Crl.P.No. 5831 of 2003), who succeeded A-3 as Minister of Prohibition & Excise, had overall control over APBCL. They failed to take necessary corrective measures to curb the excess payments. But for their involvement excess payments would not have been made. Board of Directors of APBCL by its resolution dated 24-07-1998 referred the issue relating to purchase at higher prices to the Government for instructions. In reply thereto, A-5, the then Principal Secretary for Revenue, by his letter dated 18-06-1998, directed APBCL to continue to make the purchases at higher prices with full knowledge and consent of A-4, the then Chief Secretary, at the instance of A-l, the Chief Minister, who is responsible for proper running of the Government and also APBCL. Thus, A-l to A-8, who have control over the finances of APBCL, instead of helping APBCL augment its revenue, facilitated A-9 to A-l8 distilleries earn more profits at the expense of the exchequer of the State, and hence all the accused are guilty of offences under Section 409 IPC and Sec.l3(l) (d) (ii) of the Act. Since the Director General of Anti Corruption Bureau (ACB) failed to take any action on the complaint dated 25-09-2002 of the 1st respondent, he is obliged to file the complaint with a request to refer the same to the Director General, ACB for investigation under Section 156 (3) Cr.P.C.