UPA 1 pil129-09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION PUBLIC INTEREST LITIGATION NO.129 OF 2009 Santosh Daundkar ).. Petitioner Versus State of Maharashtra through Chief Minister of ) Maharashtra State and others ).. Respondents Mr. Y.P. Singh with Mr. Ashish Mehta and Mr. Kiran Bhalerao for the Petitioner. Mr. Ravi Kadam, Advocate-General, with Mr. D.A. Nalawade, Government Pleader, for Respondent Nos.1 to 4. Mr. R.S. Apte, Senior Advocate, with Mr. Tejas D. Deshmukh and Mr. Sushil D. Kane for Respondent No.5. CORAM : MOHIT S. SHAH, C.J. AND S. C. DHARMADHIKARI, J. Monday, August 9, 2010 P. C. : By this petition under Article 226 of the Constitution of India, the petitioner, claiming to be an active social worker, has prayed for proper inquiry to be held into the matter of purchase of bullet proof jackets by the State of Maharashtra in the year 2004. The petitioner has also prayed that the said bullet proof jackets be tested by authorities such as DRDO or the Army and that those jackets be taken out from use by UPA 2 pil129-09 the Commissioner of Police as they provide armour only to half of the chest and stomach. The petitioner has also prayed for direction to the Commissioner of Police for taking steps for recovery of a lost file on the subject. The petitioner has also prayed for directions to provide compensation to the families of the officers and private citizens for the incident of 26th November 2008 from out of the pockets of those officers who had taken the decision to purchase the said bullet proof jackets. The petitioner has also prayed for a direction that all the officers who are responsible for taking the decision in question be placed under suspension by the Additional Chief Secretary, Home Department, Government of Maharashta. 2. The learned advocate for the petitioner has sought to raise various contentions for the purpose of contending that the decision to purchase the bullet proof jackets and taking delivery of such bullet proof jackets was not done in accordance with the prescribed procedure and that the bullet proof jackets were not supplied as per the prescribed specifications. It is submitted that Shri Karkare died on 26th November 2008 because the bullet proof jacket was not as per the prescribed specification. It is submitted that there was violation of the prescribed procedure as two bid system was not followed and that payments were made before the quality of the jackets was tested. It is submitted that UPA 3 pil129-09 the jackets were found to be of poor quality and they were also supplied more than two years after the scheduled date of delivery but no penalty was imposed for such poor quality or delay. It is also submitted that the prescribed procedure for inspection of goods was not followed as contained in the Purchase Manual. 3. The petition has been opposed by the respondent authorities and also by respondent No.5 who supplied the bullet proof jackets. Affidavit in reply dated 31st March 2010 has been filed by respondent No.3 Deputy Commissioner of Police, Headquarter-I, Mumbai, who has dealt with the allegations made in the petition, mainly on the following lines : (i) In December 2001, tender was floated for purchase of 125 bullet proof jackets at the instance of the Crime Branch of Brihan Mumbai Police. In response to the tender notice published in the Government Gazette dated 6th December 2001, eight tenders were received. On 14th January 2002 tenders were opened by the Committee and on 29th January 2002 the samples of the bullet proof jackets which were received under the tender were forwarded to the Technical Committee for evaluation which consisted of the following UPA 4 pil129-09 officers : (a) Additional Commissioner of Police, Armed Police, who was the Chairman of the Committee; (b) Deputy Commissioner of Police, Zone-I, Mumbai; and (c) Deputy Commissioner of Police, LA-1, Mumbai. (ii) Only three bidders including respondent No.5 were found to have been qualified and samples sent by them were again tested by the Technical Committee at the Ghatkopar Firing Range. The test reports of the samples of the jacket supplied by respondent No.5 were found to be satisfactory as per the report dated 11th March 2002 of the said Committee. Accordingly, on 30th March 2002, Letter of Consideration was issued to respondent No.5 as his was the lowest tender and on 4th June 2002 two supply orders were issued to respondent No.5 for supply of 55 bullet proof jackets each i.e. for 110 jackets in all. The sample jackets supplied by respondent No.5 were tested on 14th May 2003 and 18th December 2003 and as per the reports submitted by the Committee, the jackets were found to be in order. UPA 5 pil129-09 (iii) The Commissioner of Police thereupon received supply of the said bullet proof jackets in two consignments of 55 jackets each on 26th February 2004 and 1st March 2004. The said jackets so received were again tested by the Committee and the Committee found the jackets to be satisfactory as per the report dated 28th June 2004. (iv) It is further submitted on behalf of the respondent authorities that when the tenders were invited and purchase orders were placed, the threat perception perceived by the Crime Branch then could not be equated with the perception which has arisen after 26th November 2008 incident. Accordingly, respondent No.3 had placed the order for bullet proof jackets meant for protection from 9 mm ball FMJ and fragments from grenades which is a standard design of the jackets. The bullet proof jackets purchased from respondent No.5 were of Level 3A protection which are meant for protection from 9 mm Pistol Carbide and not protection from AK-47 and 7.62 SLR (Self Loading Rifle). 4. As regards the delay in delivery of jackets, it is stated in the UPA 6 pil129-09 reply affidavit that though the stipulated period for delivery was 30 days from the date of acceptance of the tender, i.e. the date of supply order, in case of imported goods, Custom Waiver Certificate was to be furnished by the officer of respondent No.3 and delivery period of the items would start only on the issue of such certificate. The ballistic plate which is found essential part of the bullet proof jacket was to be made from imported material and though respondent No.5 had repeatedly asked for such certificate, it could not be provided in time. Ultimately, a bill was passed on 31st March 2004 to pay up the customs duty, which was done on 17th June 2004 after the supply of bullet proof jackets was received. In view of the urgency involved, the Commissioner of Police had even requested respondent No.5 to make jackets available without waiting for payment of customs duty or Customs Waiver Certificate. Hence, respondent No.5 had requested the Commissioner of Police to make advance payment of the jackets in absence of the Customs Waiver Certificate and the Commissioner of Police had accordingly paid Rs. 24,71,040/- in advance on 27th November 2002. This was done after taking bank guarantee from respondent No.5 securing the entire amount paid to respondent No.5. It is also pointed out that when respondent No. 5 delayed the supply of jackets within reasonable time, the bank guarantee was even encashed on 30th January 2004. UPA 7 pil129-09 5. It is further submitted that since the bank guarantee was invoked, of course on account of the delay in supplying the bullet proof jackets, the officers in the other branches who did not know that the bank guarantee was invoked on account of delay in delivery, they proceeded on the assumption that bank guarantee must have been invoked as the goods were not of specified quality. This assumption was made by those officers because generally the bank guarantees are being invoked when the goods are not found to be of the standard quality. 6. It is further pointed out in the reply affidavit that only late Shri Hemant Karkare wore the bullet proof jacket and the other two officers were not wearing the bullet proof jackets. It is further stated that the post mortem report of late Shri Karkare revealed that the bullets pierced his shoulder and neck and not his chest. It is further stated that the specifications were drawn up in 2001 as per then perceived requirement and that the bullet proof jacket shown by the petitioners is of a much superior and higher quality which normally the field officers are not using on account of their movements being hampered. The bullet proof jackets available in the market are of different varieties and having different protection levels. UPA 8 pil129-09 7. At the hearing of this petition also the learned advocate for the petitioner sought to contend that on account of negligence and/or irregularities on the part of the respondent authorities, poor quality bullet proof jackets were purchased which has cost the life of officers of the police force. 8. The learned Advocate-General has opposed the petition and submitted that the tenders were invited by the State Government as far back as in December 2001 and, therefore, the threat perceptions prevalent at that point of time were taken into consideration while providing for the specifications in the tender notice and at that time the specifications required that the bullet proof jacket should block bullet of 9 mm carbine with no bulge on rear side of the plate. It was never contemplated that such jackets should be able to block bullets of AK-47 Assault rifle or bullets of Self Loading Rifle SLR 7.62. Reliance is also placed on the observations made by the concerned team headed by Additional Commissioner of Police (AP) Naigaon, Mumbai and that Mr.Uddhav Kamble was himself the Additional Commissioner of Police (AP) Naigon, Mumbai at that point of time. The said Committee had pointed out that the jacket would give protection to the person wearing the vest against 9 mm carbine, 9 mm pistol and .38 revolver. Reliance is also placed on the observations made during the test fire at S.R.P.F. UPA 9 pil129-09 Firing range, Goregaon on 18th December 2003 which are also in similar terms. Reliance is also placed on the observations made during the test fire at S.R.P.F. firing range, Goregaon on 28th June 2004 when the Committee was headed by Mr. Surinder Kumar, Additional Commissioner of Police, Protection & Security, Mumbai. 9. It is submitted that the procedure prescribed by the Government for purchasing such material was followed and that the decision to invite tenders for this kind of bullet proof jackets cannot be examined on the touchstone of perceptions based on the incident of 26th November 2008. Reliance is also placed on the judgment of the Apex Court in the case of Tata Cellular vs Union of India, AIR 1996 SC 11, in support of the contention that in exercise of the jurisdiction under Article 226 of the Constitution of India, the Court is not supposed to sit in appeal over the decision of the authority but only to review the decision making process. 10. The learned advocate for respondent No.5 also adopted the arguments of the learned Advocate-General. 11. Affidavit in reply is also filed by respondent No.5 to deny the allegations made against respondent No.5. UPA 10 pil129-09 12. Having heard the learned counsel for the parties, we find substance in the submission of the learned Advocate-General that decision to purchase bullet proof jackets with the specifications as indicated in the tender notice issued in December 2001 cannot be tested on the threat perception post 26th November 2008. The Government had issued a public notice inviting tenders for supplying bullet proof jackets which could block 9 mm carbine bullets. Eight parties had submitted their tenders in response to the notices and three were found to be eligible. Sample bullet proof jackets supplied by these three parties were provided to the Committee of three senior police officers and the samples supplied by respondent No.5 were found to be of the required specifications. The specifications in the tender notice did not require the jackets to give protection against bullets from AK-47 rifles or from Self Loading Rifles (SLR). The learned advocate for the petitioner submits that from 1993 onwards scores of AK-47/48 rifles were seized and also case was filed against a film star for possession of AK-47 rifle. Therefore, the State Government ought to have invited tenders for supply of bullet proof jackets which could block bullets from AK-47 rifles. As per the settled legal principles of the administrative law, this Court is not to sit in appeal over the decision of the authorities in such matters and this Court is only concerned with the legality of the decision UPA 11 pil129-09 making process and this Court is not to indicate as to for what specifications the tenders notice should have been issued. 13. At the hearing of the petition, the learned advocate for the petitioner sought to rely upon certain documents in support of his contention that the bullet proof jackets supplied by respondent No.5 did not meet the specifications. However, when the test reports indicate that the bullet proof jackets supplied by respondent No.5 were able to block 9 mm carbine and that was the specification mentioned in the tender notice, it is not possible to accept the contention of the learned advocate for the petitioner. 14. Whether the Government should have invited tenders for supply of bullet proof jackets of a particular category or of another category is a matter of administrative discretion and this Court is not expected to substitute the exercise of such administrative discretion. 15. For the reasons aforesaid, we do not find any merit in this petition. Petition is, therefore, dismissed. CHIEF JUSTICE S.C. DHARMADHIKARI, J.