The imprisonment awarded by the trial court is much more than the minimum sentence prescribed under Sections 7 and 13(2) of the Prevention of Corruption Act, 1988: Jharkhand High Court

1 Cr. AppealNo. 4519 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. AppealNo. 4519 1997 R ) Kedar Paswan aged about 71 years son of Late Pawan Paswan @ Late Raman Paswa Resident of Village Kharsari P.S. Kowakale P.O. KharsariDistrict Nawadah The Union of India through the CBI SPE Ranchi …... For the Appellant For the C.B.I Mr. Ajit Kumar Senior Advocate Ms. Nitu Sinha Advocate P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court: Heard the parties. Though this appeal is directed against the Judgment of conviction and order of sentence dated 22.02.2019 passed by learned Special Judge C.B.I. Ranchi in R.C. No. 02 1997(R) Mr. Ajit Kumar learned senior counsel for the appellant convict submits in continuation submissions made by him before this court on 16.11.2021 the appellant convict does not want to contest this appeal on merit and he confines his arguments only to sentence imposed upon the appellant convict by the trial court in the impugned judgment and order of sentence. 2. By the impugned Judgment of conviction and order of sentence dated 22.02.2019 passed by learned Special Judge C.B.I. Ranchi in R.C. No. 02 1997 R the learned court has held the appellant convict guilty for the offences punishable under following offences and had sentenced them as indicated below: 2 Cr. AppealNo. 4519 Sentence Convict Offence Imprisonment Fine Section 13 r w 13 1)P.C. Act Section 120B r w 420 407 467 468 and 471 IPC r w Section 13(2) r w 13(1)P.C. Act 5 years R.I. Rs. 10 lacs 2 years R.I. Rs. 10 lacs 6 months 6 months R.I. 3. The brief facts of this case is that the appellant convict while functioning as the Directorin the office of the Engineer in chief RCD Government of Bihar Patna in flagrant disregard to the procedures processed and recommended the issuance of supply order for 1500 MT bulk bitumen to the RCD Chatra Division having knowledge about the previous supply order for the said division and he never dissented to the proposal for supply of bitumen in order to process the same and for this act of commission he accepted the illegal gratification from the transporter co convict D.N. Singh at the rate of ₹ 10 per MT. 4. In support of its case the prosecution altogether examined forty six witnesses and proved the documents which have been marked as Exhibits 1 to 60 and several documents have also been marked as X to X 40. From the side of the defence also one witness has been examined as D.W.1 and from the side of the defence the documents were proved which have been marked as Exhibits A to Exhibit J and J 1 and further two documents have been marked as Y and Y 1. 5. Learned trial court after taking into consideration the evidence in the record observed that the appellant convict admitted that he was the Director in the office of the Engineer in chief RCD Government of Bihar Patna in additional charge during the relevant period but the fact that in absence of any requisition for bulk bitumen from the RCD Chatra and as without mentioning in his noting about any requirement of bulk bitumen for RCD Chatra he was instrumental in placing order for supply by issuing the supply order though there was no capacity for storage of the aforesaid bulk bitumen nor the allotted fund was sufficient even then the said supply order was issued by the appellant convict in 3 Cr. AppealNo. 4519 favour of the co convict transporter and basing on circumstances and the evidence in the record in this respect learned court below held him guilty for the said offences and convicted and sentenced him as already indicated above. 6. Ms. Nitu Sinha the learned counsel for the Central Bureau of Investigation defends the impugned judgment of conviction and order of sentence and submits that as there is ample evidence in the record to bring home the charges hence neither the judgment of conviction nor the order of sentence warrants interference in this appeal and submits that this appeal being without any merit be Since the appeal is not contested on merit hence this court is not inclined to interfere with the impugned judgment of conviction. Accordingly the impugned judgment of conviction dated 22.02.2019 passed by learned Special Judge C.B.I. Ranchi in R.C. No. 02 1997 R is confirmed. So far as the sentence of the appellant convict is concerned it is submitted by learned senior counsel for the appellant convict that the appellant convict was the in charge by way of additional charge of the office of Directorin the office of the Engineer in chief RCD Government of Bihar Patna only for few months and he is in no way concerned with the supply made after his demitting the office and the only allegation against him is that he was instrumental in issue of supply order for 1500 MT of bitumen and he allegedly took ₹ 10 per MT of bitumen which in total comes to ₹ 15 000 only. It is then submitted that the appellant convict is an old person of 73 years age as on today and he has already undergone angioplasty as well as by pass surgery and he is a diabetic person hence he requires constant medication. It further submitted by learned senior counsel for the appellant convict that the appellant convict has already undergone rigors of criminal trial since 1997 to till date and during the trial he had been in custody from 31.01.2002 to 02.05.2002 and after his conviction he has been in custody since 22.02.2019 to till date hence it is submitted that the 4 Cr. AppealNo. 4519 appellant convict be sentenced for the period he has already undergone in custody. 9. Learned counsel for the C.B.I. Mrs. Nitu Sinha submits that after the amendment the minimum sentence for the offence punishable under section 13 of the Prevention of Corruption Act is 4 years it is then submitted that the fine amount imposed upon the appellant convict ought not be interfered with. 10. Having heard the rival submissions made at the Bar it is pertinent to mention here that it is a settled principle of law that the minimum sentence under Sections 7 and 13(2) of the Prevention of Corruption Act 1988 has been enhanced by Act 14 with effect from 16 1 2014 will not be applicable to the cases in which the incident in question relates to the period prior to the said date as has been held by the Hon’ble Supreme Court of India in the case of Gurjant Singh Vs. State of Punjab reported in8 SCC 650 paragraph 15 and 16 of which read as under: “15. The learned counsel for the appellant submitted that the sentence awarded by the trial court is harsh and the same may at least be reduced to the period already undergone by the appellant. It is further submitted by him that the sentence of imprisonment awarded by the trial court is much more than the minimum sentence prescribed under law as it stood in 2003. It is relevant to mention here that the minimum sentence under Sections 7 and 13(2) of the Prevention of Corruption Act 1988 has been enhanced by Act 1 of 2014 with effect from 16 1 2014 but the incident in question relates to the period prior to the said date. Considering the facts and circumstances of the case we are of the view that the sentence of rigorous imprisonment for a period of two years and a fine of rupees one lakh would meet the ends of justice in the present case. 16. Accordingly the sentence of imprisonment is reduced from a period of three years to a period of two years without interfering with the sentence of fine recorded by the trial court. With this modification in the sentence the appeal stands disposed of.” It is needless to mention that the incident involved in this case was prior to the year 1997 thus the minimum sentence applicable in this case so far as the offence punishable under section 13 of the Prevention of Corruption Act is concerned will be one year as was prevalent before 16.1.2014. Considering the fact that the appellant 5 Cr. AppealNo. 4519 convict is an old person of 73 years age and the allegation against the appellant convict is only of receiving Rs. 10 per MT of bulk bitumen that comes out in total to Rs 15 000 and also keeping in view that the appellantconvict has undergone custody during the trial and after his conviction taken together for a period of a little less than three years i.e. during the trial he had been in custody from 31.01.2002 to 02.05.2002 and after his conviction he has been in custody since 22.02.2019 to till date this Court is of the considered view that the sentence of the appellant convict so far as offence punishable under Section 13 read with Section 13 (d) of the Prevention of Corruption Act be reduced to the period he has already undergone in custody and fine of Rs. 15 000 and in default of paying the fine of Rs. 15 000 the appellant convict has to undergo Simple Imprisonment for one month. Further as the appellant convict has already undergone custody for more than two years and six months this Court does not want to interfere with the sentence so far as offence punishable under Section 120B read with Sections 420 407 467 468 471 of Indian Penal Code read with Section 13 read with Section 13 (d) of the Prevention of Corruption Act is concerned. In case the appellant convict deposits the fine amount of Rs. 15 000 he shall be released from the custody forthwith unless his detention is required in any other case. 11. This appeal is disposed of with modification in sentence only and in view of the disposal of this appeal the interlocutory application if any also stands disposed of. 12. Let a copy of this judgment be sent to the Court concerned forthwith. High Court of Jharkhand Ranchi Dated the 18th November 2021. AFR Smita 

Summary: The appellant-convict has already undergone custody for more than two years and six months, this Court does not want to interfere with the sentence. The Hon’ble High Court of Jharkhand before The Hon’ble Mr. Justice Anil Kumar Choudhary held such opinion regarding the case of Kedar Paswan Vs. The Union of India through the CBI/SPE/Ranchi [Cr. Appeal (SJ) No. 457 of 2019].  The facts of the case were associated with an appeal filed against the judgment dated 22.02.2019, wherein the learned Special Judge passed a sentence of conviction. The counsel representing the appellant-convict stated that the appellant does not want to contest the said appeal on merit and confined his arguments only to a sentence imposed by the trial court upon the appellant-convict in the impugned judgment and order of sentence. The learned Court convicted the appellant of offences under Section 13 (2) r/w 13 (1) (d) Prevention of Corruption Act, 1988, Section 120B  read with 420, 407, 467, 468, and 471 IPC and Section 13(2) read with 13(1) (d) P.C. Act.  It was reported that in the office of the Engineer-in-chief, RCD, Government of Bihar, Patna, the appellant was functioning as the Director. Supply of bitumen in bulk was proposed to the RCD but the appellant dissented to the same and accepted the illegal gratification from the transporter co-convict, D.N. Singh. After going through each and every exhibit, submission and witness it was found that he was instrumental in placing the order for supply but there was neither any capacity for storage of the aforesaid bulk bitumen nor the allotted fund was sufficient. Even then, the said supply order was issued by the appellant-convict in favour of the co-convict transporter and based on those circumstances and the evidence in the record the learned court below held him guilty for the said offences and convicted and sentenced him, as stated earlier.  Considering all the statements and submissions, The Hon’ble Court held that “as the appellant-convict has already undergone custody for more than two years and six months, this Court does not want to interfere with the sentence so far as offence punishable under Section 120B  read with 420, 407, 467, 468, and 471 IPC and Section 13(2) read with 13(1) (d) P.C. Act is concerned. In case, the appellant-convict deposits the fine amount of Rs. 15,000/-, he shall be released from the custody forthwith unless his detention is required in any other case. This appeal is disposed of with modification in sentence only and in view of the disposal of this appeal, the interlocutory application, if any, also stands disposed of.”