MUHAMMAD NAWAZ ABBASI, J.--The appellants namely, Vijant Kumar son of Bhagwandas, Ramesh Lal son of Leelomal, Nirmal Das son of Leelomal, Mukesh Kumar son of Bhagwandas, Ms. Bhagwanti daughter of Bhagwandas in Criminal Appeal No,276 of 1998 and Mir Munawar Ali Talpur, Ex-Minister for Local Government and Rural Development Department, Government of Sindh, appellant in Criminal Appeal. No,280 of 1998 having faced the trial for the charge under sections 3 and 4 of Ehtesab Act, 1997, before the High Court of Sindh, ,Karachi, were convicted and sentenced vide judgment dated 13-11-1998 as under:-
(a) Mir Munawar Ali Talpur, appellant in Criminal Appeal No,280 of 1998: ' Three years' R.I. With a fine of rupees two crores and in default of payment of fine to undergo R.I.
For two years.
(b) The appellants in Criminal Appeal No,276 of 1998, namely Vijant Kumar son of Bhagwandas, Ramesh Lal son of Leelomal, Nirmal Das son of Leelomal, Mukesh Kumar son of Bhagwandas.
Two years' R.I. Each with fine of Rs,1,25,00,000 each and in default of payment of fine to suffer R.I. For one year each.
(c) The appellant Mst. Bhagwanti daughter of Bhagwandas, appellant No,6 in Criminal Appeal No,276 of 1998, was awarded sentence of fine of rupees one crore to be paid within 15 days and in default of payment of fine to undergo R.I. For one year.
2. The operati9n of the impugned judgment, to the extent of fine, was suspended by this Court vide order dated 26-11-1997 subject to furnishing of security in the sum of rupees one lac each with P.R.
In the like amount to the satisfaction of the Nazir of High Court of Sindh.
3. The charge against the appellants was framed under the provisions of Ehtesab Ordinance, 1996 by the Ehtesab Bench established in the High Court of Sindh under the above Ordinance in the following manner:-- "That you accused Mir Munawar Ali Talpur, being a holder of Public Office in your capacity as Ex- Minister for Local Bodies, Sindh at the relevant time in abuse of your official position and with mala fide, illegal and dishonest intention with a view to earn illegal gratification and money for yourself and for providing illegal, and fraudulent gain and profits to other co-accused approved the award of octroi contracts for the year 1996-97, for Airport at Rs,28,60,00,000 as against the fixed and upset price of Rs,32,70,00,000 and Rs,48,32,00,000 for road/rail as against the fixed and upset price of Rs,53,00,00,000 and also in violation of the rules and procedure for awarding such contracts and in rejection of the proposal of the then Administrator, K.M.C., seeking permission for re-auction of the contracts and thereby caused loss of Rs,8,07,89,560 to the Government of Sindh and the K.M.C; AND that you accused (1) Vijant. Kumar, (2) Ramesh Lal, (3) Nirmal Das, (4) Mukesh Kumar and (5)
Miss Bhagwanti acting in league and collusion with each other requested vide your application addressed to accused Mir Munawar Ali Talpur, for awarding/allocation of the above two contracts on a meager price by offering illegal gratification, benefits and favour to accused Mir Munawar Ali Talpur, and for earning illegal, dishonest and fraudulent gain and profits for yourself fell in line with and instigated and persuaded accused Mir Munawar Ali Talpur to order the award of the above two contracts to you against the proposal of the Administrator, K.M.C. And at a throw away price, thereby causing a loss of Rs,8,07,89,560 AND that all of you accused acting in collusion and connivance with each other with mala fide, illegal and dishonest intentions conjointly committed the offence/offences punishable under sections 3 and 4 of the Ehtesab Ordinance, within the cognizance of this Court, and we, hereby direct that you be tried by us for the aforesaid offences."
4. The relevant facts of the prosecution case are that Local Government and Rural Development Department, Government of Sindh, invited tenders for the grant of octroi contract through an advertisement published in Daily Hilal-e-Pakistan dated 17-5-1996 and Daily Jang dated 19-5-1996 for auction of the two independent octroi contracts namely rail, road octroi post and airport octroi post. The reserve price fixed for the octroi contract for road, rail octroi post was rupees 53,00,00,000 and for airport octroi post it was Rs:32,70,00,000. The auction of road, rail octroi contract as per schedule, was held on. 5th, 6th and 9th of June, 1996 and auction for the airport octroi post contract was held on 2nd, 3rd and 4th June, 1996 but none participated in these auctions. Messrs Ziarat Enterprises was interested in the contract but being not satisfied with the terms and conditions of auction which were found against the octroi rules, filed objections and pending disposal of theseobjections by the Karachi Metropolitan Corporation (K.M.C.), Messrs Ziarat Enterprises made offers vide separate letters dated 3-7-1996 to the then Minister for Local Government and Rural Development Department, Government of Sindh (appellant in Cr. A. 280/98) of Rs,48,32,00,000 for the contract of road, rail octroi post ',Ind Rs,28,60,00,000 for airport octroi post as against the upset price of Rs,53,00,00,000 and Rs,32,70,000 respectively. The concerned Section Officer in the Local Government and Rural Development Department, Government of Sindh, having processed the above letters, sent the same to the Administrator, K.M.C. Under covering letter dated 10-6-1996 for comments. The Administrator in his comments pointed out that with the deletion of para. 8 of the terms and conditions contained in letter dated 10-3-1996, the competitive bids could be obtained and that the offer made on behalf of Messrs Ziarat Enterprises for road, rail contract was 8.83% below to the upset price but it was 5.05% higher to the contract price of the last year and similarly the offer for the contract of airport octroi post year and similarly the offer for the contract of airport octroi post was 12.27% below the upset price but it was 5.05% above the approved/confirmed price of the last year. In the light of the comments of Administrator.K.M.C.. The Secretary, Local Government and Rural Development Department, Government of Sindh, submitted a summary to the Minister concerned (appellant in Cr.A. 280 of 1998) in the following manner:-- "The Karachi Metropolitan Corporation (K.M.C.) held the auction for leasing out collection rights of Octroi Tax by road/rail and Airport for the financial year 1996-97 but no bid was received. The Administrator, K.M.C. States that he has, after the auction, received from one Mr. Muhammad Shakir Memon, an offer of Rs,480,300,000 against the official bid of Rs,530,000,000 for Octroi Tax by road/rail. He further states that he has not received any offer for Octroi Tax collection by Airport.
2. Meanwhile, Messrs Ziarat Enterprises gave the following offer for both the routes: S.No,Name of ContractLast year's Contractual AmountOffer
1. Road/Rail Side Rs,460,000,000 Rs,483,200,000
2. Airport Side Rs,272,200,000 Rs,286,000,000 The offers are accompanied with call deposits amounting to Rs,4,935,000 and Rs,2,858,100 for the respective contracts. The offers do not include salary of the K.M.C. Octroi Staff, Income-tax etc. Which the party would pay in addition.
3. According to Messrs Ziarat Enterprises, they attended the auction proceedings on the schedule dates but none offered any bid. Their offers, including the one for road/rail route which is slightly higher than the one given by Mr. Muhammad Sakir Memon, are just 5% above the last year's contractual amount and, thus 10% less than the official bids for each route.
4 The K.M.C.'s efforts to lease out these contracts in auction havefailed. It is for consideration whether the offers received from Messrs Ziarat Enterprises with only 5% increase over the last year's contractual amount be confirmed."
(Sd.)
(NUR AHMAD SHAH), SECRETARY, LOCAL GOVERNMENT."
5. The Minister being not agreed with proposal of the Secretary, Local Government and Rural Development Department of 5% increase on the contractual amount, of the last year, approved the contract with 6% increase of the last year vide letter dated 11-7-1996 in favour of Messrs Ziarat Enterprises and in pursuance thereto, agreements were executed. Precisely. The allegation contained in the reference was that the appellants in Criminal Appeal 276 of 1998 in collaboration with the appellant in Criminal Appeal 280 of 1998 obtained octroi contracts in violation of the rules and they in connivance with each other through corruption and corrupt practices caused substantial loss of Rs,807,89,560 to the State exchequer for their personal gain.
6. The prosecution in support of the charge, produced only two witnesses namely, Muhammad Ayaz, (P.W.1) Director Octroi, K.M.C., Karachi, and Asif Razaq son of Abdur Razaq, S.H.O. In addition the following documentary evidence was also produced:-
(I) Advertisement in the newspapers;
(ii) Letters written on behalf of Messrs Ziarat Enterprises to the then Minister concerned;
(iii) Letters written by Section Officer, Local Government and Rural Development Department, Government of Sindh, to the Administrator, K.M.C.;
(iv) The comments of the Administrator, K.M.C. And the summary submitted by the Secretary, Local Government and Rural Development Department, Government of Sindh, to the Minister; and
(v) The letter of approval and the agreements for grant of contracts.
7. Muhammad Ayaz (P.W.1) the star witness of the prosecution, has stated that the auction for the octroi posts was advertised through publication in daily Hilal-e-Pakistan, Dawn and Jang wherein the upset price for the contract of road, rail octroi posts was fixed Rs,53,00,00,000 and for airport post Rs,32,70,00,000 but no one turned up to make an offer in the auction for the contracts and that in the light of objections of Messrs Ziarat Enterprises to the terms and conditions of auction, K.M.C.
Decided to reconsider the matter and a draft was under preparation in K.M.C. For waiving the certain conditions when the Administrator, K.M.C. Was asked by the Local Government and Rural Development Department, Government of Sindh, for comments, on the offer made by Messrs Ziarat Enterprises through letters dated 10-3-1996 and on the basis of comments submitted by the Administrator, K.M.C. Summary was put up and Messrs Ziarat Enterprises was given the contract of road and rail octroi post for a sum of Rs,48,76,00,000 and for airport octroi post for a sum of Rs,28,86,10,440. The difference of contractual amount and the upset price was of Rs,4,24,00,000 and Rs,3,81,18,360 for road, rail and for airport octroi posts respectively. In cross-examination, the witness has stated that the contract of rail. Road for the year 1995-96 was awarded for a sum of 46 crores and for airport octroi post for Rs,27,22,74,000 whereas the reserved/upset price for the abovesaid posts was Rs,58,25,00,000 and Rs,27,22,74,000 respectively. The witness also stated that during the year 1994-95 the department itself collected the octroi charges and received an amount of Rs,43,51,45,302. The witness has given the detail of difference between the upset price and confirmed price starting from 1989-90 as follows: (a)during 1989- 90about one crore.
(b)during 1991- 92more than two crores.
(c)during 1991- 92about six crores.
(d)during 1992- 93no losses were sustained by the K.M.C.
(e)during 1993- 94more than seven crores
(f) during 1994- 95about seven crores.
(g)during 1995- 96about thirteen crores.
(h)during 1996- 97about five crores."
8. It is in the statement of this witness that from 1-7-1996 to 13-7-1996 the octroi charges were collected by the department and only an amount of Rs,1,55,92,474 from rail, road octroi posts could be recovered and 'there is nothing in his statement that during the year 1996-97 the contract was awarded to the appellants in Criminal Appeal No,276 of 1998 for any other consideration other than the public interest so much so he has not stated that contract was granted in violation of the rules or that there was a remote possibility of offer of higher bid or at least equal to the upset price.
9. Mr. Abdur Razaq, S.H.0., the second prosecution witness, has stated that he was deputed to conduct an inquiry in the matter and during the inquiry, he having recorded the statements of the witnesses also examined the relevant record and submitted his report to the Director (Inquiries) which was made part of the evidence. The witness stated that in the light of evidence collected by him, during the inquiry, the conclusion drawn by him was that the concerned Minister (appellant in Criminal Appeal No,280 of 1998) awarded contracts to the appellants in Criminal Appeal No,276 of 1998 at the cost of loss of Rs,8,07,89,056 to the K.M.C. The inquiry report submitted by the witness contained the following findings:-- "FINDINGS ................................................. .................................................
1. The Administrator, K.M.C. Anzar Ahmed Zaidi is responsible for causing inordinate delay in tendering process, which he was supposed to furnish by 15th May, 1996 and submit it to Government by 9th June, 1996 but never submitted it till 9th July, 1996. The Ex-Minister Mr. Munawar Ali Khan Talpur is responsible for entertaining the direct offer from the party managing it through Secretary, Local Government and finally approving it in violation of Rules/Policy at 9% below the upset price and causing loss to K.M.C. Worth Rs,08,07,89,560. The beneficiaries Messrs Ziarat Enterprises and its directors namely 1. Mr. Vijant Kumar son of Mr. Bhagwandas, House No,407, Hindu Mohallah, Shahi Bazar, Kashmore, District Jacobabad,
2. Mr. Rehesh Lal sori of Mr. Leelo Mal Shahi Bazar, Kashmore, Post and Taluka Kashmore, District Jacobabad,
3. Mr. Mirmaldas son of Mr.Leelo Mal, Shahi Bazar, Kashmore, Post and Taluka Kashmore, District Jacobabad,
4. Mr. Mukesh Kumar son of Mr. Bhagwandas, Hindu Mohallah, Post and Taluka Kashmore, District Jacobabad,
5. Miss Bhagwanti daughter of 13hagwandas, Hindu Mohallah Post and Taluka Kashmore, District Jacobabad are responsible who approached/made offers for aforesaid contracts directly to the Minister, Local Government Department who have approved these offers instantly at 6% above last year's contractual amount slightly above offers made by M/s. Ziarat Enterprises which amounts to anillegal favour/gains obtained from the Government and caused a loss of Rs,08,07,89,560 to the K.M.C. During award of 1996-97 K.M.C.
Octroi contracts."
10. The appellants in their statements under section 342, Cr.P.C. While denying the allegations pleaded innocence. Mir Munawar Ali Talpur, appellant in Criminal Appeal No,280 of 1998 in answer to question No,1 has replied as under:- "No Sir. It is absolutely false and a totally baseless allegation neither proved nor supported by any evidence. I had passed orders on the Summary of the Secretary of the concerned Department in the normal course of official business. The alleged loss mentioned in the above question is only a matter of inference. Sir, it has come in evidence that contracts for rail/road and airport have generally been awarded on the basis of offers received and such offers when calculated would further demonstrate that the increase in the official bid or contractual amount has never been at a consistent or a particular rate. In any case, requirement, if any, was not even pointed out in the summary."
' Similarly, the remaining appellants denied the charges and pleaded that no loss was caused by them to the exchequer. Mir Munawar Ali Khan Talpur, appellant also made a statement under section 340(2), Cr.P.C. On oath but produced no evidence in defence.
11. The offence of corruption and corrupt practices under Ehtesab Ordinance, 1996 and Ehtesab Act, 1997, is defined under section 3 of the Act as under:-- "3. Corruption and corrupt practices..-(1) A holder of public office or any other person is said to commit the offence of corruption and corrupt practices-
(a) If he accepts or obtains from any person any gratification, other than legal remuneration, as a motive or reward such as is specified in section 161 of the Pakistan Penal Code (Act XLV of 1860), or for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person, or for rendering or attempting to render any service or disservice to any person.
(b) If he accepts or obtains any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been, or to be likely to be, concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with his official functions, or from any person whom he knows to be interested in or related to the person so concerned; or
(c) If he dishonestly or fraudulently misappropriates or otherwise converts for his own use or for the use of any other person any property entrusted to him or under his control as a holder of public office or willfully allows any other person so to do; or
(d) If he, by corrupt, dishonest, improper or illegal means obtains or seeks for himself or for any other person any property, valuable thing, pecuniary advantage or undue favour; or
(e) If he or any of his dependents or benamidars are in possession of any movable or immovable property or pecuniary resources, disproportionate to his known sources of income which he cannot reasonably account for; or
(f) If he commits or causes rigging of election.
Explanation.--For the purposes of this section, reference to property acquired by improper means shall be construed as a reference to property acquired by means which are contrary to law rule, usage or instruction having the force of law or by abuse of official position or by coercion, undue influence, fraud or misrepr3entation within the meaning of the Contract Act, 1872 (IX of 1872).
(2) Where within ten days from the commencement of this Ordinance, a holder of public office or a person specified in sub-clause (iv) of clause (t) of section 2, makes a full and complete declaration, in writing, to the Chief Ehtesab Commissioner or any officer or authority authorized by him, of any property, assets, benefits or gains acquired by him through corruption and corrupt practices and voluntarily returns such property, assets, benefits or gains to ,the Chief Ehtesab Commissioner within one month from such declaration, no penal action under this Ordinance or any other law for the time being in force shall be taken against him: Provided that he shall be disqualified to hold any representative office for a period of five years and where he is a person specified in clause (iv) of subsection (1) he shall cease to hold his office or post, as the case may be.
(3) All offences under this Ordinance shall be non-bailable.
12. The trial in the case against the appellants commenced before the Ehtesab Bench of the High Court of Sindh established under Ehtesab Ordinance, 1996, on a reference sent to the Bench by the Chief Ehtesab Commissioner and on repeal of the Ehtesab Ordinance by Ehtesab Act IX of1997 the trial was concluded under the Act. Section 31 (2) of the Ehtesab Act provided that notwithstanding the repeal of the Ordinance, the proceedings pending before the Ehtesab Benches of the High Courts established under the Ordinance, would continue and the evidence recorded by the Ehtesab Benches would form part of record. The acceptance or obtaining gratification other than legal remuneration, from any person as motive or reward as provided under section 161, P.P.C. In relation to the official acts or extending any favour or disfavor to any person or attempting to render any service or disservice in connection with official business was an offence under section 3 of Ehtesab Act, 1997 which was punishable under section 4 of the said Act. The sentence provided therein may extend the R.I. For a term of seven years or with fine or with both and the forfeiture of the property in the name of accused or in the name of any of his dependents which was obtained by him while holding a public office. Under subsection (2) of section 4 of the Ordinance, it was provided that a person who gives illegal gratification or abets or assists or aids the holder of a public office or is the beneficiary of the property gained through corruption or corrupt practices, shall be liable to the same punishment. In the present case, the charge was that the appellant in Criminal Appeal No,280 of 1998, who was Minister for Local Government and Rural Development Department, Government of Sindh, at the relevant time, through misuse of his authority awarded contracts to appellants in Criminal Appeal 276 of 1998 in violation of the policy for a less amount to the reserved/upset price and thereby caused substantial loss to the Government for personal gain.
13. The learned counsel for the appellant in Criminal Appeal 280 of 1998 has contended that admittedly neither anyone participated in the auction nor came forward to make an offer higher to the offer made by appellants in Criminal Appeal No,276 of 1998 even through negotiation and that the Minister on receipt of an attractive offer of his co-accused, directed for the comments of Administrator, K.M.C., who while submitting the comments explained that the offer made by Messrs Ziarat Enterprises was higher to that of the contractual amount of the last year and in the light of these comments the Secretary concerned, submitted summary to the Minister with the advice in favour of approval of contracts which were approved in good faith. Learned counsel added that there was not an iota of evidence on the record to suggest that the contract was approved by the Minister in favour of his co-accused for financial gain or any other consideration or that he by extending any favour to them caused loss to the State exchequer. The learned counsel emphasized that mere fact that contract was granted for a less amount to the upset price, would not constitute an offence under section 3 of Ehtesab Act, 1997, punishable under section 4 of the said Act and submitted with reference to the statement of Liaqat Ali (P.W.1) that the gradual increase in the contractual amount in every year would show that Messrs Ziarat Enterprises made maximum offer in the relevant year. The learned counsel argued that mere difference of the estimated upset price to that of the actual contract price, would not be termed as actual loss to the Government and that in absence of any evidence of receipt of an offer equal to the upset price or even more than the price for which contracts were given, would establish that transaction was free from any element of unfairness or personal interest.
14. Learned counsel representing NAB, on the other hand, has argued that grant of contract through negotiations, in departure to the policy of the Government of Sindh, would give rise to a strong presumption that the contract was granted for extraneous considerations which would be supported by the facts supplied by the Administrator, K.M.C., in his comments as incorporated in the summary submitted by the Secretary to the Minister. The learned counsel added that in the given facts a legitimate inference would be drawn that the Minister, in collaboration with his co- accused, extended favour to them for financial gain at the cost of State exchequer, therefore, the transaction would squarely fall within the ambit of section 3 punishable under section 4 of the Ehtesab Act, 1997. Learned counsel however, without denying the factual position that there was no direct evidence of getting illegal gratification or financial gain by the Minister, submitted that the circumstances under which the contract was granted would give rise to a strong presumption that the transaction was not free from personal interest of the Minister. The learned counsel conceded that non-participation of any person in the auction may apparently create an impression that the Minister in the light of comments of the Administrator, K.M.C., and advice of the Secretary, Local Government and Rural Development Department, Government of Sindh, approved the contract without any interest but the grant of contract in violation of policy for an amount less to that of the upset price would suggest that it was not free form financial consideration.
15. We, with the help of learned counsel for the parties, have perused the record in detail and also heard them at length.
16. The essential fads supplied by the prosecution relating to the fixation of date of auction, non- participation of bidders in the auction, the offer made by the appellants through negotiation, the calling of the comments from the Administrator, K.M.C., and in the light of comments, submission of summary by the Secretary, Local Government and Rural Development Department, Government of Sindh, to the Minister, difference of the contractual amount to that of upset price are not disputed but the evidence oral and documentary brought on record by the prosecution, would not as such suggest that the contract was given for any financial gain or any other consideration prejudicial to the public interest. There is also no direct or circumstantial evidence to show that the Minister in departure to policy and without advice of the Administrator and Secretary, approved the contract.
The inquiry report placed on record by the S.H.O. Also does not contain any substantial material in support of the allegation of committing a offence by the appellants under section 3 of Ehtesab Act, 1997 punishable under section 4 of the said Act and similarly the perusal of remaining documentary evidence of official correspondence and the letters of Messrs Ziarat Enterprises, would not indicate any element of favour or disfavour in the transaction. It is correct that the grant of contract through negotiation in preference to the policy of auction may create an impression that it was not transparent but the same by itself, would not be an evidence of corruption or corrupt practices. The unwillingness of the people to participate in the auction and offer the bid, would show that no one else except the appellants in Criminal Appeal No,276 of 1998 were interested in the contract which would be a strong circumstance to show the bona fide of the Minister in the matter. The pivotal question for determination would be whether the transaction constituted a criminal offence or the manner of grant of contract was adopted to avoid delay in the grant of contract and consequential loss to the exchequer. The detail scrutiny of the evidence and examination of the facts in the background and circumstances under which the offer was accepted, would satisfy the mind that acceptance of offer of Messrs Ziarat Enterprises was not for any personal interest to raise a presumption of guilt. It is the basic principle of criminal administration of justice that the initial onus of proving the charge is always on the prosecution and it shifts to the accused only in special situation. However, under Ehtesab Act, 1997, a presumption of guilt of committing an offence of corruption and corrupt practice can be raised under section 8 of the said Act if the initial burden is discharged by the prosecution. Section 8 of the Act provides as under:- "Presumption against holder of public office accepting illegal gratification.--(1) Where in any trial of an offence punishable under sections 161 to 165 of the Pakistan Penal Code (Act XLV of 1860), it is proved that an accused person has accepted or obtained, or has agreed to accept or attempted to obtain, for himself or for any other person any gratification, other than legal remuneration, or any valuable thing, or any pecuniary advantage from a person or any agent of a person, for any favour shown or promised to be shown by the accused, it shall be presumed, unless the contrary is proved, that he accepted or obtained, or agreed to accept or attempted. To obtain, that gratification or that valuable thing or pecuniary advantage for himself or some other person, as the case may be, as a motive or a reward such as is specified in sections 161 to 163 of the said Code, or. As the case may be, without consideration or for a consideration which he believed to be inadequate.
(2) Where in any trial of an offence punishable under section 165-A of the Pakistan Penal Code (Act XLV of 1860), it is proved that any gratification other than legal remuneration or any valuable thing has been given, or offered to be given, or attempted to be given, by any accused person, it shall be presumed, unless the contrary is proved, that he gave, or offered to give, or attempted to give, that gratification, or that valuable thing, as the case may be, as a motive or a reward such as is specified in sections 161 to 163 of the said Code, or, as the case may be, without consideration or for a consideration which he believed to be inadequate.
(3) In any trial of an offence punishable under this Act, the fact that the accused person or any other person on his behalf, is in possession, for which the accused person cannot satisfactorily account, of property or pecuniary resources disproportionate to his known sources of income, or that such person has, at or about the time of the commission of the offence with which he is charged, obtained an accretion to his pecuniary resources or property for which he cannot satisfactorily account, the Court shall presume, unless the contrary is proved, that the accused person is guilty of the offence of corruption and corrupt practices and his conviction therefor shall not be invalid by reason only that it is based solely on such a presumption."
17. The examination of above section with section 3 of the Act would show that the presumption of guilt can only be raised in a case in which prosecution has proved that an accused person accepted or obtained or agreed to accept and obtain for himself or for any other person any gratification other than legal remuneration. The use of word 'proved' cannot be equated with mere suspicion to raise the presumption of guilt. In the present case, we find that even basic element of mens rea and intention to commit the crime was not proved to raise such a presumption. The Court before raising a presumption of guilt to fix the criminal liability, must ensure itself that the initial burden of proving the charge by the prosecution was satisfactorily discharged. In the instant case, no material evidence was brought on record in support of personal gain or interest of Minister to raise a legitimate presumption that the contract was granted for some personal consideration.
The learned trial Judge keeping in view the grant of contract through negotiations for less amount to that of upset price raised a presumption of guilt without taking notice of the important fact that no one turned up in the auction to make an offer even equal to the estimated/upset price what to speak of the higher offer, therefore, the estimated upset price in the given facts would not be relevant to calculate the loss. While visualizing the situation, in the light of factual position as contained in the summary submitted by the Secretary to the Minister and the comments of Administrator, K.M.C., it can safely be said that the Minister, under the advice of Secretary, Local Government and Rural Development Department approved the contract in good faith without any personal interest or financial gain. The failure of the Administrator, K.M.C. And Secretary, Local Government and Rural Development Department, to discharge their duty of tendering the proper advice would make them equally responsible for the loss if any but strangely enough none of them was either arrayed as accused in the reference or was examined as witness to establish that the Minister either acted against their advice or the grant of contract through negotiation was motivated for an extraneous consideration. We have noticed that the Secretary, Local Government and Rural Development Department proposed grant of contract with 5% increase over the contractual amount of the last year whereas the Minister accorded the approval 6% above the contractual amount of last year, which would also show the bona fide of the Minister.
18. For the foregoing reasons, we find that the prosecution has not been able to establish the charge against the appellants beyond reasonable doubt and in consequence thereto, the conviction and sentences awarded to the appellants is set aside. The appellants were allowed bail by this Court by order dated 26-11-1998 and 30-11-1998 in Criminal Appeals Nos.276 of 1998 and 280 of 1998 respectively. Their bail bonds are hereby discharged. The appeals are allowed.