WP(C)9509-04 Page 1 of 50 * IN THE HIGH COURT OF DELHI AT NEW DELHI + WP(C)No.9509/2004 % Reserved on : 25th September, 2008 Date of decision: 22nd October, 2008 Lt. Cdr. M.P. Verma …PETITIONER Through: Mr. Meet Malhotra with Mr.Sukhjinder Singh, Advocates Versus Union of India ...RESPONDENT Through: Ms.Jyoti Singh with Mr.Ankur Chhiber, Advocates CORAM: HON'BLE MR. JUSTICE SANJAY KISHAN KAUL HON’BLE MR. JUSTICE MOOL CHAND GARG 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported Yes in the Digest? MOOL CHAND GARG, J. 1. The petitioner joined Indian Navy as Air Artificer Sailor in November, 1968 and was commissioned as an officer on 1.4.1981. He superannuated on 30.09.2000. Prior to superannuation he was posted as Deputy Controller of Procurement (Central Purchase/ Direct Purchase) in the Material Organization, Mumbai. By virtue of an agreement entered into by him with the Central Government, he was re-employed in the Indian Navy soon after his retirement i.e., w.e.f. 01.10.2000 which appointment continued till WP(C)9509/2004 Page 2 of 50 21.5.2004. During this period also, he was posted as Deputy Controller of Procurement in Ghatkopar Mumbai and as such he was responsible for various procurement activities on behalf of Navy. 2. In or around June 2003 Intelligence inputs were received by the Navy Authorities about extortion of illegal gratification by some Naval officers from the vendors for giving them contracts for supply of defence equipments. On being satisfied that the petitioner was involved in such practices his house was raided, from where a sum of Rs.6,91,700/- was recovered hidden in a servant quarter. A diary maintained by the petitioner in his own handwriting as confirmed by the handwriting expert was also recovered from his brief case, which contained details about the receipt of money from the vendors so obliged. Thus the petitioner was attached with the Commanding Officer, INS ANGRE for disciplinary purposes and was sent for trial on 17 charges for acquiring assets disproportionate to his known sources of income under Section 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1969 as also under Section 77(2) of the Navy Act, 1957 (for short „the said Act‟). He was tried by a General Court Martial which found him guilty of charges No. 2, 3, 5, 6, 8, 9, 10, 13, 15 and 17 and sentenced the petitioner to undergo simple imprisonment for one year, dismissal from service besides imposing fine of WP(C)9509-04 Page 3 of 50 Rs.6,91,700/-. The petitioner was dismissed from the service of Indian Navy w.e.f. 21.05.2004. However he could not be arrested for undergoing the simple imprisonment due to a stay in respect of his arrest granted by Mumbai High Court and later extended by the Apex Court, which is continuing even till date. 3. The charges for which the petitioner has been convicted are highlighted as under: (2) Did at about 1900 hrs on 05 September 2002, being a public servant posted as Deputy Controller Procurement (Central Purchase/Direct Purchase) at Material Organisation (Mumbai), by abusing his position as public servant obtain for himself pecuniary advantage comprising Rs. 50,000/- (Rupees Fifty Thousand) in cash from Mr. KS Subramanian, General Manager, Safari Industries (India) Limited, suppliers of suitcases to the Indian Navy, at Hotel Meghdoot, near Ghatkopar Railway Station, Mumbai, and thereby committed an offence under Section 13(1)(d) (ii) of the prevention of Corruption Act, 1988, punishable under Section 13(2) of the said Act, read in conjunction with Section 77(2) of the Navy Act, 1957. (3) Was at about 1600 hrs on 07 Dec 2002, guilty of conduct unbecoming the character of an officer in that he accepted Rs. 5,000/- (Rupees Five Thousand) in cash at Kala Ghoda, Mumbai from Mr.Vijay Kumar Singhal, Proprietor of M/s Computer Stationery, Mumbai, suppliers of computer related items to the Indian Navy, and thereby committed an offence punishable under Section 54(2) of the Navy Act, 1957. (5) Did at about 1330 hrs on 13 February, 2003 being a public servant posted as Joint Controller Procurement (Central Purchase) at Material WP(C)9509/2004 Page 4 of 50 Organisation (Mumbai), by abusing his position as public servant, obtain for himself pecuniary advantage comprising Rs. 10,000/- (rupees Ten Thousand) in cash, from Mr.Akar A. Filmwala, Parnter of M/s Equip-Tronics, Mumbai, suppliers of Electrical and Electronic items to the Indian Navy. In his officer in Material Organisation (Mumbai), and thereby committed an offence under Section 13(1)(d)(ii) of the Prevention of Corruption Act, 1988, punishable under Section 13(2) of the said Act, read in conjunction with Section 77(2) of the Navy Act, 1957. (6) Was at about 1600 hrs on 08 Mar 2003, guilty of conduct unbecoming the character of an officer in that he accepted Rs.5000/- (Rupees Five Thousand) in cash at Kala Ghoda, Mumbai from Mr.Vijay Kumar Singhal, Proprietor of M/s Computer Stationery, Mumbai, suppliers of computer related items to the Indian Navy, and t hereby committed an offence punishable under Section 54 (2) of the Navy Act, 1957. (8) Did at about 2000 hrs on 07 April 2003, being a public servant posted as Joint Controller Procurement (Central Purchase/Direct Purchase) at Material Organisation (Mumbai), by abusing his position as public servant, obtain for himself, pecuniary advantage comprising Rs. 5,000/- (Rupees Five Thousand) in cash from Mr. Om Prakash Toshniwal, Senior Manager M/s Arjay Apparel Industries Limited, Mumbai, suppliers of vests and briefs to the Indian Navy, at his residence in Material Organisation (Mumbai), and thereby committed an offence under Section 13(1)(d)(ii) of the Prevention of Corruption Act, 1988, punishable under Section 13(2) of the said Act, read in conjunction with Section 77(2) of the Navy Act, 1957. (9) Did at about 1400 hrs on 12 April 2003, being a public servant posted as Joint Controller Procurement (Central Purchase/Direct Purchase) at Material Organisation (Mumbai), by abusing his position as public servant, obtain for himself WP(C)9509-04 Page 5 of 50 pecuniary advantage comprising Rs. 10,000/- (Rupees Ten Thousand) in cash from Mr. Akbar A. Filmwala, Partner of M/s Equip-Tronics, Mumbai, suppliers of Electrical and Electronic items to the Indian Navy, in his office in Material Organisation (Mumbai), and thereby committed an offence under Section 13(1)(d)(ii) of the Prevention of Corruption Act, 1988, punishable under Section 13(2) of the said Act, read in conjunction with Section 77(2) of the Navy Act, 1957. (10) Did at about 1100 hrs on 26 April 2003, being a public servant posted as Deputy Controller Procurement (Central Purchase/Direct Purchase) at Material Organisation (Mumbai) by abusing his position as public servant, obtain for himself pecuniary advantage comprising Rs. 1,00,000/- (Rupees One Lakh), in cash from Mr. Ashok Kalra, Chief General Manager (Commercial), Lakhani Industries Limited, Faridabad, suppliers of shoes to the Indian Navy, in his office in Material Organisation (Mumbai), and thereby committed an offence under Section 13(1)(d)(ii) of the Prevention of Corruption Act, 1988, punishable under Section 13(2) of the said Act, read in conjunction with Section 77(2) of the Navy Act, 1957. (13) Did at about 1700 hrs on 09 May 2003, being a public servant posted as Deputy Controller Procurement (Central Purchase/Direct Purchase) at Material Organisation (Mumbai) by abusing his position as public servant, obtain for himself pecuniary advantage comprising Rs. 10,000/- (Rupees Ten thousand) in cash from Mr.Venugopal Asopa, representative of M/s Asopa Traders, Visakhapatnam, suppliers of peak caps and clothing items to the Indian Navy, in his office in Material Organisation (Mumbai), and thereby committed an offence under Section 13(1)(d)(ii) of the Prevention of Corruption Act, 1988, punishable under Section 13(2) of the said Act, read in conjunction with Section 77(2) of the Navy Act, 1957. (15) Was at about 1600 hrs on 04 June 2003 guilty of WP(C)9509/2004 Page 6 of 50 conduct unbecoming the character of an officer in that he accepted a gift of Rs. 5000/- (Rupees five Thousand) in cash, in his office in Material Organisation (Mumbai) from Mr.Vijay Kumar Singhal, Proprietor of M/s Computer Stationery, Mumbai, suppliers of computer related items to the Indian Navy, and thereby committed an offence punishable under Section 54(2) of the Navy Act, 1957. (17) Did at about 2200 hrs on 08 June 2003, being a public servant posted as Deputy Controller Procurement (Central Purchase/Direct Purchase) at Material Organisation (Mumbai), possess pecuniary resources to the extent of Rs. 6,91,700/- (Rupees six lakhs ninety one thousand seven hundred) in cash, namely, Rs. 6,76,000/- (Rupees six lakhs seventy six thousand) recovered from an air bag in the servants quarter attached with his residence at 3, Saraswati, Naval Park, Material Organisation (Mumbai) and Rs. 15,700/- (Rupees fifteen thousand seven hundred) in an almirah in the said residence, which is disproportionate to his known sources of income namely salary for which could not satisfactorily account, and thereby committed an offence under Section 13(1)(e) of the Prevention of Corruption Act, 1988, punishable under Section 13(2) of the said Act, read in conjunction with Section 77(2) of the Navy Act, 1957. 4. Prior to filing of the present writ petition, the petitioner did prefer a statutory appeal before the Central Government under Sections 162/163 of the Act against his conviction and sentence. The said appeal was dismissed during the pendency of the writ petition vide order dated 4th May, 2005. The petitioner has amended his petition and has filed the amended petition thereby also challenging the order of the Central Government dated 4th May, 2005 in WP(C)9509-04 Page 7 of 50 addition to the prayers earlier made. 5. One of the objections raised by the petitioner against his trial by a Court Martial is that he was not subject to the said Act and therefore could not have been tried under the Naval Law. This objection had been rejected by a Division Bench of this Court presided over by Dr. Justice M. K. Sharma and Ms. Justice Reva Khetrapal vide their order dated 19.5.2006 which has also not been reversed even by the Apex Court. 6. By the aforesaid order it has been held: “That the petitioner admittedly was a re-employed personnel with the Navy just after his retirement in terms of an agreement entered into by him with Central Government of his own volition in terms of Section 6 of the Act and, therefore, in accordance with the terms and conditions laid down under the Navy instructions 5/8/58 he subjected himself to Naval law. By virtue of the aforesaid instructions and in view of Section 6(1) of the Navy Act, any person who is not otherwise subject to Naval law but enters into an agreement with the Central Government to serve in particular ship or otherwise of his own volition, becomes subject to Naval law.” 7. It was further held that all uniformed persons belonging to Indian Navy and serving anywhere in the Navy become subject to Naval law when they themselves of their own volition subject themselves to the provisions of the said Act by entering into an agreement under Section 6 of the said Act. It was also observed that at the relevant time the petitioner was admittedly in the contractual employment of WP(C)9509/2004 Page 8 of 50 the Navy as is reflected from his own letter dated 1.10.2003 seeking his release from the service of the Navy w.e.f 31.12.2003. 8. The petitioner aggrieved by the aforesaid judgment also approached Hon‟ble Supreme Court of India. However, the Apex court while disposing of his petition did not set aside the order and only made following observations; “The High Court of Delhi by order dated 24th March, 2005 directed the Central Government to proceed with the disposal of the representation made by the petitioner under Section 162 of the Navy Act. The High Court has clarified that the pendency of the writ petition shall not come in the way while disposing of the representation by the Central Government. The learned Additional Solicitor General for the Union of India, at the time of hearing, placed before us an order passed by the Central Government, Ministry of Defence dated 22nd May, 2004 under sections 162 and 163 of the Navy Act, 1957. By the said order, the conviction was upheld and the prayer made by the petitioner was dismissed as devoid of merits. At this stage, Mr.L.N.Rao, learned Senior counsel appearing for the petitioner, brought to our notice that an application for amendment of writ petition filed by the petitioner in the High Court has already been allowed by the High Court. The petitioner has filed the amended writ petition in this S.L.P. The High Court, while disposing of the writ petition, directed the registry of the said court to place the matter before the regular Bench on 10th July, 2006 for hearing the main pleas raised by the writ petitioner pertaining to the findings and sentence of the Court Martial. Now, since amendment application has also been allowed, we request the High Court to consider the amended writ petition and also the plea raised by the petitioner pertaining to the findings and sentence of the Court Martial on merits and after affording opportunity to both the parties. Till the disposal of the writ petition, the order passed by the High court in the impugned order vacating the stay shall stand stayed. In other words, the petitioner will not be arrested till the disposal of the writ petition. The special leave petition is disposed of accordingly. No costs.” 9. The petitioner has also not pressed this point before us again. Even otherwise, there is no reason for us to have WP(C)9509-04 Page 9 of 50 a review of the well reasoned order of the Coordinate Bench of this court on the issue. Hence, we conclude that the petitioner was subject to Naval law in the relevant period and asking him to face trial by a Court Martial was not illegal. 10. Additionally the petitioner has pointed out some procedural irregularities in the Convening of the Court Martial, its constitution and substitution of its two Members while the trial was on. Objection has also been raised about the role of the Trial Judge Advocate during the Course of trial. It is claimed that those infirmities vitiates the trial. Some other infractions have also been pointed. It has been pleaded;- (i) That the petitioner was forcibly taken to Naval Ship INS Kunjali and was given third degree treatment to extract confessional statement and that the sum of Rs.6,91,700/- recovered from his house was not the bribe money but was the money belonging to the petitioner as received by him towards an agreement to sell produced on record for sale of his property at Pune, Flat No. 43, First Floor, Flat No. 3 situated in M.P. Co-operative Housing Society Ltd. Sahnni, Pune in January, 2003. It is submitted that this aspect has been completely overlooked by the Court Martial. (ii) The petitioner was borne with the Material Superintendent (MS) in Material Organization (MO) Mumbai, and as such MS(MO) alone was competent to make an application for his trial in accordance with Regulation 148(5) of the Regulations Navy Part II (Statutory). Such application could not have been made by the Commanding Officer of INS ANGRE. WP(C)9509/2004 Page 10 of 50 (iii) The Investigating Officer had to be appointed by his Commanding Officer in terms. However, the C-in-C himself appointed the investigating officer whereas it should also have been done by MS (MO) thereby C in C took excessive personal interest in the proceedings. (iv) That the Convening Authority had only to appoint the President of the Court Martial under Section 97(12) while the other members were to be chosen by the President in terms of Section 97(19) and 97(20) of the Act. But the convening authority handpicked various junior officers as members of the court martial illegally by substituting two members of the Court Martial itself. Reliance has been placed upon the letter of the convening authority dated 16thJanuary, 2004 which is an excuse list, exempting all officers falling in between the seniority of the members which is subsequent to the order appointing the President. (v) An objection was raised regarding sitting of those members in Court Martial who were not invited by the President of the Court Martial under Section 97(19) of the Navy and were handpicked at the behest of higher authority. This objection was not only against their competence but also regarding their impartiality and should have been put to vote by the Court Martial. However instead of doing so it was decided by the Trial Judge Advocate herself. This Act of the trial Judge Advocate was thus in violation of the judgment of the Apex Court in the case of Union of India & Ors. VsShivendra Bikaram Singh[2003 (6) SCC 259] which is sufficient to vitiate the trial. (vi) The petitioner had requested for an interview with the witnesses for the prosecution on 31.01.2004 and 04.03.2004 under regulation 172(5) which ought to have been granted by the Court Martial. However it was refused. This affected the preparation of the petitioner’s defence and therefore affects the WP(C)9509-04 Page 11 of 50 partiality of the procedure undertaken by the court martial. (vii) Petitioner was also not supplied copies of the charge sheet and statement of witness supporting the charge sheet which was voilative of Regulation 151 and vitiates the trial in view of the Judgment of the Supreme Court in Union of India Vs. B.N. Jha 2003 (4) SCC 531. (viii) Charges leveled against the petitioner were not proved by leading any independent evidence. In fact the findings of the Court Martial are based upon the noting of bribe money recorded in the diary only which cannot be taken as proof of such entries without corroboration from independent sources. The testimony of the bribe givers relied upon by the Court Martial was not admissible without prosecuting them together with the petitioner or otherwise. It has been submitted that the those witnesses were none else but accomplices and were induced by Navy by continuously placing the orders on them despite discovery of story of so-called illegal gratifications allegedly paid by them to the petitioner. (ix) That Navy had no jurisdiction to exempt civilians from punishment and should have lodged FIR against all the accused person (who would also include the bribe givers) and they ought to have been tried under the Prevention of Corruption Act under the aegis of the designated Court. It is stated that the Navy procured testimony of the bribe givers by inducing them which is an offence in the eyes of law. Instead of black listing the fourteen offenders the Navy authorities produced those vendors as prosecution witnesses. This also impeaches their credit under Section 155(2) of the Evidence Act and makes their testimony inadmissible in evidence. In fact, the statement made by the vendors was also vitiated on account of the pressure imposed upon them by police/provost officer, Commander A. Saran and Commander Tomar. WP(C)9509/2004 Page 12 of 50 (x) That the panchnamas were prepared in violation of Section 100, 102 and 165 of the Cr.P.C. by tampering with the original panchnama and by not observing safeguards as provided for under Sections 3 to 5 of the Prevention of Corruption Act inasmuch as, the bribe giver were not tried with the petitioner as observed by the Hon’ble Supreme Court in the case of P.Nallammal and Ors. Vs. State [(1999) SCC 559]. (xi) The disclosure statement allegedly made by the petitioner Ex.P-50 was inadmissible being contrary to provisions of Section 27 of the Evidence Act. (xii) The President of the Court Martial had not applied his mind inasmuch as, throughout the proceedings he was issuing SMSs to such a large extent which shows that he gave no attention to trial as is apparent from the report of the MTNL in their affidavit at pages 413 to 424 of the paper book. (xiii) That the entire action taken by the C-in-C himself without involving the concerned officials violated the Scheme of the Navy Act and the Regulations framed there under which shows his personal interest and excessive command influence which also vitiates the entire proceedings. 11. In addition to that the petitioner has also mentioned some of the instances regarding the bias of the Trial Judge Advocate during trial. In this regard, it has been submitted that: (i) The TJA examined and recorded the depositions of the officer of the Court without administering him oath in violation of Section 110 of the Navy Act. (ii) The summary of evidence of PW1, 2, 12 and 14 was not provided to the petitioner in violation of Regulation 169 read WP(C)9509-04 Page 13 of 50 with Regulation 149, Regulations Navy Part II. (iii) The TJA ruled that the head of the organization can certify copies of the documents as correct. This is contrary to Section 133 of the Navy Act because it is only the Commanding Officer or the Secretary of Ministry of Defence can do so. (iv) TJA failed to take note of the provisions of Section 65 A and 65 B of the Evidence Act despite the fact, Section 130 of the Navy Act makes Evidence Act applicable to the Naval Trial. (v) TJA permitted postponement of cross-examination of Commander A. Saran but when petitioner’s counsel commenced cross-examination imposed stringent restrictions. 12. Petitioner also stated that the Trial Judge Advocate was a short service commissioned officer whose services were coming to an end during the pendency of the court martial and was extended for a year, and has not discharged her duties impartially. She acted with bias and committed number of illegalities while performing her functions during the Court Martial in addition to what has been stated above. 13. The petitioner also assailed the order of Central Government rejecting his appeal as an order passed without application of mind and without considering the submissions made by the petitioner. It has been prayed that the petitioner be exonerated of all the charges and his conviction and sentence be set aside. The money recovered be also refunded to him as it belongs to the WP(C)9509/2004 Page 14 of 50 petitioner and is not bribe money as alleged. 14. The petitioner has also relied upon the following judgments: 1. Dhananjaya Reddy Vs. State of Karnataka, 2001 (4) SCC 9 2. S.N. Mukherjee Vs. Union of India (1990) 4 SCC 594 3. Mahipal Singh Vs. Union of India & Ors. 1994 LAB. I.C. 2365 (Delhi High Court) 4. Union of India Vs. Shivendra Bikaram Singh (2003) 6 SCC 359 5. Union of India & Ors. Vs. Maj. General Madan Lal Yadav, AIR 1996 SC 1340 6. Lt. Col. Prithi Pal Singh Bedi & Ors. Vs. Union of India & Ors. (1982) 3 SCC 140. 7. Union of India & Ors. Vs. B.N. Jha, (2003) 4 SCC 531 8. P. Nallammal & Anr. Vs. State (1999) 6 SCC 559 15. The respondents contested the petition by filing a counter affidavit. It has been submitted that by virtue of the agreement entered into by the petitioner with the Central Government for his re-employment in the Indian Navy w.e.f 01.10.2000, the petitioner became a person subject to Naval law in terms of Section 2(1)(b) read in conjunction with Section 6 of the said Act. He was posted as Deputy Controller of Procurement, Central Purchase/Direct Purchase in the Material Organization (Mumbai), which was tasked with procurement of spares and equipments for submarines, WP(C)9509-04 Page 15 of 50 battleships and other vessels for the Indian Navy from civilian vendors. On receipt of intelligence inputs alleging involvement of the petitioner and others in taking illegal gratification from the vendors, a raid was conducted at his house and a sum of Rs.6,91,700/-was recovered along with a diary which was in the handwriting of the petitioner containing the records of bribe money received from the vendors. Thus, in accordance with the provisions contained in the Regulation 148 of the Navy (Disciplinary and Miscellaneous Provisions) Regulations, 1965 (hereinafter referred to as “Regulations”) read with Navy Instructions 95/69, the petitioner was attached with