The Office of the Attorney General (OAG) dropped the embezzlement case against three individuals in the takin restocking project in January 2017 from prosecution.
The Attorney General’s letter to the Anti-Corruption Commission (ACC) chairperson dispatched yesterday suggested taking administrative actions and system corrections as the ACC may deem it fit and proper or pursue otherwise as provided by ACC law. The OAG reviewed the case on January 15, 2019 and decided to refer the case for appropriate administrative actions.
The ACC asked the OAG to prosecute the deputy chief livestock production officer Kuenzang Gyeltshen for alleged embezzlement of Nu 231,480 while carrying out takin restocking task in the first quarter of 2017.
A senior forest ranger and a vegetable vendor in Wangduephodrang, were also accused of participating in the alleged embezzlement of fund.
According to ACC’s investigation report, Kuenzang Gyeltshen was assigned the task to restock five female takins at the Motithang Takin Preserve from Jigme Dorji Wangchuck National Park (JDNP) in Gasa after more than 20 takins died at the preserve.
He is accused of taking an advance of Nu 250,000 to execute the project with a team of 15 officials. The budget estimation prepared by the team leader reflected expenses for construction of hideouts and bridges, physical transportation of sedated takins from the capture site to the road point and then to the release site at Motithang preserve in addition to camp shifting and purchase of animal baits.
However, ACC’s investigation found that the construction of bridges and manual transportation of sedated takins were all done by the foresters engaged in the assignment instead of the local labourers as reflected in the muster roll while the hideouts were never built at the site in Gasa.
The report stated that the officer had allegedly fabricated five pages of muster roll and each muster roll had names and thumbprints of 18 labourers. All names were same in the five pages of muster roll.
“On interview, people from the locality stated that they were never hired by the forestry division nor did they sign or put their thumbprint on the muster roll,” the ACC report stated.
It also stated that most people, whose names were reflected in the muster roll, said that they don’t know the officer in question nor received any payment from the forestry division.
The investigation revealed that the team had hired only one local labourer for the work. “The officer allegedly settled Nu 250,000 that he took to meet expenses at the site through muster rolls fraud and fake hand receipts and bills.”
The ACC alleged that they found the muster rolls prepared by the accused were countersigned by the senior ranger, who was also involved in the takin restocking work, which was finally approved by the chief forestry officer.
ACC also claimed that investigations found that the accused had fabricated two hand receipts for camp shifting. “The hand receipts show that all 14 and 16 pack horses belonged to people who were either nonexistent or who never owned any horses.”
The report stated that the officer admitted that actual camp shifting was done but without any charges. He also confessed to forging his own thumbprints and signatures to fabricate muster rolls and hand receipts to support his claims. “He also got hold of an empty bill where he falsified his claims for the purchase of animal baits. Although one bag of salt was procured and used in the field, maize and wheat were fictitious.”
The investigation revealed that a vegetable vendor, who doesn’t deal with grocery items, issued an empty bill from his shop in Bajo.
As there was scanty information on the case report received on the actual ground realities involved, an OAG team had to visit the takin capturing areas in Gasa and had also closely viewed video clips of BBS, recorded while restocking takins at Sakteng Wildlife Park in Trashigang from the same area in Gasa.
“As proportionality is the breathing essence of reasonability, it was critical to appreciate the ground realities confronted by the accused who was required by the superior to undertake a legitimate task,” the AG’s letter stated.
OAG found that of the 16 people involved, the accused Kuenzang Gyeltshen could engage only one local person and the rest of the manpower had to be arranged from different park services. The team had to build four temporary wooden bridges over local streams and rivers to facilitate their movements. Each exigent bridge took several days to be built without separate budget for it.
Besides nestling in strategic hideouts and treehouses, camps had to be built and shifted to five different locations in the most challenging terrains with benumbing highland chill. The rations and equipment had to be carried on their backs to every new location, some by over 20km. To secure its herd, the takins keep shifting their roosting to places normally inaccessible to other predators.
Accordingly, the hideouts had to be relocated to several improvised treehouses to gain vantage point for early morning tranquilisation. Then each tranquilised beast, weighing anywhere between 400 to 500kgs, had to be physically carried on the men’s shoulders to the road ahead and then transport it to the final destination. As the wooden bridges would not withhold the heavy weights of the unconscious beast and the men carrying it, rafting boats were engaged for transportation across the rivers. After completion of the task, all the bridges had to be dismantled to maintain the environmental status quo. It thus took over 40 days, starting from early March to mid of April 2017, to capture and transport five female takins to the restocking destination.
During those 40 days’ undertaking, it was a serious requirement to upkeep the moral beats of the team members by providing energising drinks, rich food and other refreshments. Then there was the customary need to appease the mountain deities for which a local monk had to be engaged to perform daily offerings who needs to be equally fed and offered with pecuniary offering on the daily basis.
“None of those narratives are foreseeable to the investigation or prosecution sitting in their soft offices, as much as the mountain herders cannot be expected to issue bills for the daily purchases made to ration the team,” the AG’s letter states. “Under the circumstances, it was compelling for the accused to first accomplish the task and then later submit the necessary papers to account for the actual cost incurred on the ground.”
The OAG realised that takin restocking was therefore a long and arduous task that has tested the managerial skills of the leader, shooting accuracy of the tranquiliser and cooperative endurance of the men’s strength who had finally, and safely, carried them on their bare shoulders from the trackless rugged terrains down to the destination.
“Hence, initiating prosecution merely on the basis of the alleged illegitimacy of the documents later prepared by the accused and other two participants per seoffends the core principle of proportionality vis-à-vis the recorded hardships undertaken to accomplish the assigned task.”
Augmenting the ground reality narratives were the written letters received from the concerned minister, Director of DoFPS and other involved officers who unanimously asserted the past clean records of the accused Kuenzang Gyeltshen, his dedicated long services and the ministry’s incapability to carrying out the task of tranquilising, radio collaring and translocating captured takins without his expertise.
The AG also said that concurrently, they unanimously confirm the fact of alleged cost having been genuinely spent for the assigned task and that the accused did not gain any material benefit therefrom. Besides permissible daily allowances, the team members had made no claims for hardship allowances or potter and pony allowances which could have been found permissible under the circumstances.
Dissecting the alleged offence into perquisite criminal elements, the OAG determined no provable elements deployed by the accused to defraud, deceive or prejudice the rights of another person as required under Section 296 of the Penal Code.
The OAG found no mala fideintent to benefit material gains in Kuenzang Gyeltshen or other two alleged participants to appropriately initiate the ACC proposed prosecutions.
On the contrary, AG said that his office has in its records several hitherto acquittals by the courts on similar issues.
“Hence, we neither find criminal intent in the accused to defraud public fund for personal gains nor it fulfils the “public interest” requirement tests under Section 40 of the OAG Act.”