Criminal Appeal Nos. 402/2017 & 405/2017

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI TUESDAY, THE 8[TH] DAY OF JUNE 2021 / 18TH JYAISHTA, 1943 CRL.A NO. 405 OF 2017** **AGAINST THE JUDGMENT & SENTENCE IN CC 2/2010 DATED 02/05/2017 OF THE ENQUIRY COMMISSIONER & SPECIAL JUDGE,TRIVANDRUM, THIRUVANANTHAPURAM** ## **APPELLANT/ACCUSED NO.1:** DR.V.K.RAJAN AGED 65 YEARS S/O. KOCHUKUTTY, AGED 65,FORMER DIRECTOR OF HEALTH SERVICES,THIRUVANANTHAPURAMRESIDING AT PANCHAJANYAM, TC.25/405,SHANTHI NAGAR, GOVT. PRESS ROAD,THIRUVANANTHAPURAM DISTRICT. BY ADVS. SRI.SASTHAMANGALAM S. AJITHKUMAR SRI.RAYJITH MARK SRI.V.S.THOSHIN ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA REPRESENTED BY THE DEPUTY SUPERINTENDENT OF POLICE,VIGILANCE & ANTI-CORRUPTION BUREAU,SIU-1, POOJAPURA, THIRUVANANTHAPURAM -THROUGH THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM - 682 031. SRI.A.RAJESH, SPL.PP VACB THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 05.02.2021, ALONG WITH CRL.A.402/2017, THE COURT ON 08.06.2021 DELIVERED THE FOLLOWING: Crl.A.Nos.402/2017 & 405/2017 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI TUESDAY, THE 8[TH] DAY OF JUNE 2021 / 18TH JYAISHTA, 1943 CRL.A NO. 402 OF 2017** **AGAINST THE JUDGMENT DATED 02.05.2017 IN CC 2/2010 OF ENQUIRY COMMISSIONER & SPECIAL JUDGE,TRIVANDRUM, THIRUVANANTHAPURAM** ## **APPELLANT/2ND ACCUSED (IN CUSTODY):** DR.SHYLAJA AGED 60 YEARS RESIDING AT HARIPADAM,THARA 282, T.C. 27/29,OORUMADOM ROAD, KUNNUKUZHI,THIRUVANANTHAPURAM. BY ADVS. SRI.K.K.VIJAYAN SRI.K.R.RAJESHKUMAR SRI.G.RANJU MOHAN SRI.S.SURESH ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM - 682 031. SRI.A.RAJESH, SPL.PP VACB THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 05.02.2021, ALONG WITH CRL.A.405/2017, THE COURT ON 08.06.2021 DELIVERED THE FOLLOWING: Crl.A.Nos.402/2017 & 405/2017 3 ## **R. NARAYANA PISHARADI, J** ## ************************** Crl.Appeal.Nos.402 & 405 of 2017 -------------------------------------------Dated this the 8[th] day of June, 2021 ## **J U D G M E N T** The appellant in Crl.A.No.405/2017 is the first accused and the appellant in Crl.A. No.402/2017 is the second accused in the case C.C.No.02/2010 on the file of the Court of the Enquiry Commissioner and Special Judge, Thiruvananthapuram. 2. The first accused was the Director of Health Services, Kerala during the period from 06.08.1999 to 31.12.2004. The second accused was the District Medical Officer, Thiruvananthapuram during the period from 22.11.2000 to 28.09.2001 and from 09.10.2001 to 19.06.2003. The third accused was the Store Keeper, Store Verification Team, Crl.A.Nos.402/2017 & 405/2017 4 Thiruvananthapuram during the period from 09.10.2001 to 19.06.2003. The fourth accused was the Pharmacist in the Store Verification Team, Thiruvananthapuram during the period from 08.10.2001 to 10.02.2004. 3. The prosecution case is as follows: Accused 1 to 4 and late Sri.Augustine Thomas, who was the Store Superintendent (Health) in the District Medical Store, Thiruvananthapuram, entered into a criminal conspiracy to unnecessarily purchase Hepatitis B vaccine from M/s. Serum Institute of India Limited, M/s. Shantha Biotechnics (Private) Limited and M/s. V.H.Bhagath and Company, thereby allowing these companies to gain pecuniary advantage. Pursuant to such conspiracy, Sri.Augustine Thomas persuaded the pharmacists and the medical officers in the Thiruvananthapuram District to place indents for supply of more quantity of Hepatitis B vaccine than actually required. In connivance with the other accused, Sri.Augustine Thomas forged records and indents for this purpose. The third and the fourth accused forwarded the forged indents to the second accused with Crl.A.Nos.402/2017 & 405/2017 5 their recommendation for purchasing huge quantity of Hepatitis B vaccine. The second accused, who very well knew that there was no vaccination schedule or immunization programme against Hepatitis in the district and that the quantity of vaccine proposed to be purchased was more than the requirement, placed supply orders for purchasing huge quantity of it. She did not care to see that the vaccine was purchased and supplied only as per the requirement of the medical institutions. She forcibly distributed the vaccine to the medical institutions under her control and made the entire vaccination programme a failure. The first and the second accused did not take action against the faulty administration of vaccine which was reported to them. The accused caused a loss of Rs.1,49,17,280/- to the Government, being the price of the vaccine supplied by the companies. Thus, the accused committed the offences punishable under Section 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 (for short 'the Act') and also under Sections 465, 468, 471, 477A and 120B of the Indian Penal Code. 6 Crl.A.Nos.402/2017 & 405/2017 4. The trial court framed charge against the accused for the offences punishable under Section 13(1)(d) read with 13(2) of the Act and also under Sections 468, 471, 477A and 120B of the Indian Penal Code. All accused pleaded not guilty. 5. The prosecution examined PW1 to PW24 and marked Exts.P1 to P117 documents. DW1 to DW6 were examined and Exts.D1 to D8 documents were marked on the side of the accused. 6. The trial court found the third and the fourth accused not guilty of all offences charged against them and acquitted them. The trial court found the first and the second accused guilty of the offences punishable under Section 13(1)(d) and 13(2) of the Act read with 120B of the Indian Penal Code and under Sections 468, 471, 477A read with Section 120B of the Indian Penal Code and also independently under Section 120B of the Indian Penal Code and convicted them thereunder. 7. The trial court imposed sentence on the first and the Crl.A.Nos.402/2017 & 405/2017 7 second accused as shown in the table below. |**_Offence_**|**_Sentence/punishment_**| |---|---| |13(1)(d) and 13(2) of the<br>Prevention Corruption Act<br>read with Section 120B of<br>the I.P.C|Rigorous imprisonment for a<br>period of five years and fine of<br>Rs.50,00,000/- (Rupees fifty<br>lakhs only) and in default of<br>payment of fine, rigorous<br>imprisonment for a period of<br>twentyfour months.| |Section 120B of the I.P.C|Rigorous imprisonment for a<br>period of two years and fine of<br>Rs.50,000/-<br>(Rupees<br>fifty<br>thousand only) and in default of<br>payment of fine, rigorous<br>imprisonment for a period of four<br>months.| |Section 468 read with<br>120B of the I.P.C|Rigorous imprisonment for a<br>period of two years and fine of<br>Rs.50,000/-<br>(Rupees<br>fifty<br>thousand only) and in default of<br>payment of fine, rigorous<br>imprisonment for a period of four<br>months.| |Section 471 read with<br>120B of the I.P.C|Rigorous imprisonment for a<br>period of two years and fine of<br>Rs.50,000/-<br>(Rupees<br>fifty<br>thousand only) and in default of<br>payment of fine, rigorous<br>imprisonment for a period of four<br>months.| |Section 477A read with<br>120B of the I.P.C|Rigorous imprisonment for a<br>period of two years and fine of<br>Rs.50,000/-<br>(Rupees<br>fifty<br>thousand only) and in default of<br>payment of fine, rigorous<br>imprisonment for aperiod of four| Crl.A.Nos.402/2017 & 405/2017 8 months. 8. Aggrieved by the judgment of the trial court, the first and the second accused have filed these appeals. 9. Heard the learned counsel for the appelants and the learned Public Prosecutor. Perused the records of the case. 10. The first accused was the Director of Health Services, Kerala during the period from 06.08.1999 to 31.12.2004. The second accused was the District Medical Officer, Thiruvananthapuram during the period from 22.11.2000 to 28.09.2001 and from 09.10.2001 to 19.06.2003. They were public servants as defined under Section 2(c) of the Act. There is no dispute with regard to these facts. 11. The allegations against the accused pertain to purchase of Hepatitis B vaccine for the government medical institutions in Thiruvananthapuram District for the year 2002-2003. 12. There is no dispute with regard to the fact that the Central Purchase Committee was the authority competent to Crl.A.Nos.402/2017 & 405/2017 9 determine the various items of medicines to be purchased for the medical institutions under the Health Services Department. This Committee consisted of six members including the chairman. The members of this Committee were the Director of Health Services, the Director of Medical Education, the Director of Insurance Medical Services, the Drugs Controller and two representatives, one each from the Finance Department and the Stores Purchase Department. 13. The first accused was in the Central Purchase Committee during the relevant period, either as Chairman or only as a member, in his capacity as the Director of Health Services. 14. Ext.P4 is the copy of the letter dated 08.02.2002 issued by the Chairman of the Central Purchase Committee to the approved firms for furnishing the rates at which they could supply various drugs for the year 2002-2003. The list of drugs attached to this letter contains Hepatitis B vaccine as items 302 and 303. 15. Ext.P4 document shows that Dr.M.O.Annamma was the Crl.A.Nos.402/2017 & 405/2017 10 Chairperson of the Central Purchase Committee at that time. 16. Ext.P9 document would show that the Central Purchase Committee, in its meetings held on 20.05.2002, 27.05.2002 and 27.05.2002, fixed the rates and the ratio for the supply of various drugs and medicines for the year 2002-2003 by the approved firms. Ext.P9 document also shows that the companies which were selected for the supply of Hepatitis B vaccine of 10mcg/ml of 0.5 ml vial were M/s. Serum Institute of India Limited and M/s. V.H.Bhagath and Company and the companies selected for the supply of 20mcg/ml of 10 ml vial were M/s.Serum Institute of India Limited and M/s. Shantha Biotechnics (Private) Limited. 17. The second accused issued Ext.P11 supply order dated 28.09.2002 to M/s. Shantha Biotechnics (Private) Limited for the supply of 14000 Hepatitis B vaccine of 20mcg/10ml vial. She also gave Ext.P12 supply order to M/s.Serum Institute of India Limited for supplying 14000 Hepatitis B vaccine of 20mcg/10ml Crl.A.Nos.402/2017 & 405/2017 11 vial and 11700 Hepatitis B vaccine of 10mcg/0.5ml vial. She also gave Ext.P13 supply order dated 28.09.2002 to M/s. V.H.Bhagath and Company for the supply of 11700 Hepatitis B vaccine of 10mcg/0.5ml vial. As per the above supply orders, the companies had to supply the vaccine at the rates fixed by the Central Purchase Committee. When examined under Section 313 Cr.P.C, the second accused has admitted issuing Exts.P11 to P13 supply orders. 18. The first accused was only a member of the Central Purchase Committee which fixed the rates for the supply of medicines and which selected the companies. Ext.P9 document would show that Dr.M.O.Annamma, in her capacity as the Director of Medical Education, was the Chairperson of the Committee at the relevant time. Exts.P11 to P13 supply orders relate to supply of the vaccine for the use of the medical institutions in Thiruvananthapuram District. There is no reliable evidence to find that the first accused, who was the Director of Health Services, had any role in placing Exts.P11 to P13 supply Crl.A.Nos.402/2017 & 405/2017 12 orders. The authority competent to place orders for the supply of medicines in each district was the District Medical Officer. 19. The prosecution relies upon two circumstances to prove that the first accused had conspired with the second accused in placing orders for the supply of huge quantity of Hepatitis B vaccine in Thiruvananthapuram District. The first circumstance is that, the first accused, without any authority, granted permission to M/s.Serum Institute of India Limited for changing the volume of each unit of vaccine to be supplied from 10 ml to 5 ml. The second circumstance is that, in a conference of the Medical Officers of Thiruvananthapuram District, the first accused had urged the medical officers to go forward with the vaccination drive in the district. 20. Ext.P18(a) is the letter dated 02.08.2002 sent by the Serum Institute of India Limited to the Chairman of the Central Purchase Committee. In this letter, the company had requested to grant permission to supply two 5ml vial vaccine amounting to 20mcg instead of 10ml vial vaccine, at the same rate. The Crl.A.Nos.402/2017 & 405/2017 13 company had pointed out that supply of 5ml vial vaccine would be of great advantage to the Government. The company had stated in Ext.P18(a) letter as follows: _“This is a great advantage to the Govt. because, wastage of unused doses can be minimised, ie, when we open a 10 ml vial, 20 children has to be immunised at a time. Whereas, for 5 ml vial 10 children can be immunised. Therefore, if there is not enough children, wastage will be more with 10 ml vial. Hence the Govt. will be able to save to a great extent with this special sanction”._ 21. The first accused acted upon Ext.P18(a) letter and sent Ext.P19 communication to the chairmen of all District Purchasing Committees, stating that Serum Institute of India Limited has been granted permission to supply the vaccine in 5 ml packing. 22. As per Ext.P20 Government Order dated 02.07.1984, the Central Purchase Committee was the authority competent to change the conditions relating to package etc. of the medicines. Therefore, the first accused himself had no authority to grant sanction to the Serum Institute of India Limited to make change in the supply of vaccine from 10 ml vial to 5 ml vial. Crl.A.Nos.402/2017 & 405/2017 14 23. The fact that the first accused, without sufficient authority, granted permission to one of the companies to supply the vaccine in packages of 5 ml vial instead of 10 ml vial does not in any way indicate that he had conspired with the second accused or any other person in placing orders for the supply of huge quantity of vaccine for use in Thiruvananthapuram District. Ext.P19 communication was sent by the first accused not only to the District Medical Officer of Thiruvananthapuram District but to the chairmen of all District Purchasing Committees. The change in the volume of vaccine effected as per Ext.P19 communication was applicable to all the districts in Kerala. Further, the action of the first accused in granting permission to change the supply of vaccine from 10 ml vial to 5 ml vial, though irregular, had caused no loss to the Government. By no stretch of imagination, the above act of the first accused can be considered as an act indicating his involvement in any criminal conspiracy. 24. Ext.P25 is the original minutes of the meeting of the medical officers of Thiruvananthapuram District which was held Crl.A.Nos.402/2017 & 405/2017 15 on 06.03.2003. It shows that the first accused had also attended that meeting. It is recorded in Ext.P25 that the first accused had warned the doctors that those who had not accepted the hepatitis vaccine should receive it immediately and disciplinary action would be taken against those persons who failed to do so. 25. Ext.P25 minutes was marked through PW12 who had written it and signed it. PW12 was the District Education and Medical Officer. He identified his signature in Ext.P25. He deposed that the entries in Ext.P25 are in his handwriting. He also deposed that, in some pages, the entries are in the handwriting of one Unnikrishnan. 26. The first accused has challenged the genuineness and authenticity of Ext.P25 minutes. It is contended that the document showing the persons who had attended the meeting (attendance register) is not produced. It is pointed out that some pages of the minutes are written by a person other than PW12. It is further contended that the minutes are written in different types of loose sheets. Crl.A.Nos.402/2017 & 405/2017 16 27. Even if it is accepted that Ext.P25 minutes is an improperly prepared document and that no reliance can be placed upon the contents of that document, there is other evidence to find that a meeting of the medical officers in the district was held on 06.03.2003 and that the first accused had attended that meeting and among various matters discussed in that meeting, the first accused had urged the doctors to surge forward with the hepatitis vaccination programme in the district. 28. PW12 has given evidence that the first accused asked everyone in the meeting whether they had obtained the hepatitis vaccine and stored it. The first accused directed those who had not stored it to do so and warned that strict action would be taken against those persons who failed to do so. There is no sufficient ground to discard the testimony of PW12 in this regard. The fact that the first accused had transferred PW12 from his office and posted him in the office of the District Medical Officer is not sufficient to find that PW12 had enmity towards the first accused for that reason and that he has falsely testified against 17 Crl.A.Nos.402/2017 & 405/2017 the first accused. 29. Further, the evidence of PW12 regarding the direction made by the first accused in the above meeting is corroborated by the testimony of PW10 and PW11 who had attended the meeting. PW10 was the Superintendent of the Government Hospital, Attingal. He has given evidence that he attended the meeting held on 06.03.2003 and that the first accused, who participated in the meeting, gave direction to take delivery of hepatitis vaccine of required quantity. PW11 was the Medical Officer of Kallara Primary Health Centre. He has given evidence that the first accused had attended the monthly meeting of the medical officers in the district which was held in March,2003 and that the first accused had given direction to administer hepatitis vaccine to more persons. PW13 was the Medical Officer of Kilimanoor Primary Health Centre. Though PW13 has not given evidence with regard to the direction given by the first accused in the matter of taking delivery of hepatitis vaccine, his Crl.A.Nos.402/2017 & 405/2017 18 testimony reveals that the first accused had attended the monthly meeting of the medical officers in the district which was held in March,2003. 30. Therefore, the prosecution could prove beyond reasonable doubt that the first accused attended the meeting of the medical officers in the Thiruvananthapuram District which was held on 06.03.2003 and in that meeting, the first accused had given strict directions to the medical officers to take delivery of the hepatitis vaccine and store it. 31. But, the crucial question is whether the above conduct of the first accused is sufficient to infer that he had conspired with the second accused or any other person for purchasing unnecessary and huge quantity of hepatitis vaccine for the medical institutions in the Thiruvananthapuram District. In my view, it is not at all sufficient to infer that the first accused was a party to any criminal conspiracy. The question would be whether the first accused was a party to any agreement to place orders for the supply of huge quantity of hepatitis vaccine which was Crl.A.Nos.402/2017 & 405/2017 19 really not required by the medical institutions in the district. Conspiracy cannot be assumed from a set of unconnected facts or from a set of conduct at different places and times without a reasonable link. 32. Section 120A of the Indian Penal Code defines 'criminal conspiracy'. It states that, when two or more persons agree to do, or cause to be done, an illegal act, or an act which is not illegal by illegal means, such an agreement is designated as "criminal conspiracy”. No agreement except an agreement to commit an offence shall amount to a criminal conspiracy, unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. Section 120B of the Indian Penal Code prescribes the punishment for criminal conspiracy. 33. Conspiracy is conceived as having three elements – a criminal object, a plan or a scheme embodying means to accomplish that object, and an agreement or understanding between two or more people to co-operate for the Crl.A.Nos.402/2017 & 405/2017 20 accomplishment of such object (See **Rajender @ Rajesh @ Raju v. State : (2019) 10 SCC 623** ). 34. A conspiracy consists not merely in the intention of two or more persons, but in the agreement of two or more persons to do an unlawful act, or to do a lawful act by unlawful means. 35. A criminal conspiracy is generally hatched in secrecy. Privacy and secrecy are the characteristics of a criminal conspiracy. Direct evidence in proof of a criminal conspiracy would be seldom available. 36. The essential ingredient of the offence of criminal conspiracy is the agreement. It may not be possible to prove the agreement by direct proof. The prosecution need not necessarily prove that the conspirators expressly agreed to do or cause to be done the illegal act. The agreement may be proved by necessary implication. The offence can be proved largely from the inferences drawn from the acts or illegal omissions committed by the conspirators in pursuance of a common design. Existence of the conspiracy and its objective can be inferred from the Crl.A.Nos.402/2017 & 405/2017 21 surrounding circumstances and the conduct of the accused. 37. No doubt, criminal conspiracy can be proved by circumstantial evidence. But, the circumstances, when taken together, should indicate the meeting of the minds between the conspirators for the intended object of committing an illegal act or an act which is not illegal, by illegal means. In **State of Kerala v. Sugathan : AIR 2000 SC 3323** , the Apex Court has held as follows: _“ There must be a meeting of minds resulting in ultimate decision taken by the conspirators regarding the commission of an offence and where the factum of conspiracy is sought to be inferred from circumstances, the prosecution has to show that the circumstances giving rise to a conclusive or irresistible inference of an agreement between the two or more persons to commit an offence. As in all other criminal offences, the prosecution has to discharge its onus of proving the case against the accused beyond reasonable doubt. The circumstances in a case when taken together on their face value,_ Crl.A.Nos.402/2017 & 405/2017 22 _should indicate the meeting of the minds between the conspirators for the intended object of committing an illegal act or an act which is not illegal, by illegal means. A few bits here and a few bits there on which the prosecution relies, cannot be held to be adequate for connecting the accused with the commission of the crime of criminal conspiracy. It has to be shown that all means adopted and illegal acts done were in furtherance of the object of conspiracy hatched. The circumstances relied on, for the purposes of drawing an inference should be prior in time than the actual commission of the offence in furtherance of the alleged conspiracy”._ (emphasis supplied) 38. The offence of criminal conspiracy can be proved, either by adducing circumstantial evidence, or by way of necessary implication. However, in the event that the circumstantial evidence is incomplete or vague, it becomes necessary for the prosecution to provide adequate proof regarding the meeting of minds, which is essential in order to hatch a criminal conspiracy, by adducing substantive evidence in Court (See **R.Shaji v. State of Kerala : AIR 2013 SC 651** ). Crl.A.Nos.402/2017 & 405/2017 23 39. It is extremely rare that direct evidence in proof of conspiracy would be forthcoming from wholly disinterested quarters or from utter strangers. But, like other offences, criminal conspiracy can be proved by circumstantial evidence. Indeed, in most cases, proof of conspiracy is largely inferential. But, inferences must be founded on solid facts. 40. Dealing with a case under the Prevention of Corruption Act, in **Purushothaman v. State of Kerala : AIR 2006 SC 35** , the Apex Court has held as follows: _“To constitute a conspiracy, agreement between two or more persons for doing an illegal act, or an act by illegal means, is a sine qua non. Although the agreement among the conspirators can be inferred by necessary implication, the inference can only be drawn on the parameters in the manner of proved facts, in the nature of circumstantial evidence. Whatever be the incriminating circumstance, it must be clearly established by reliable evidence and they must form the full chain whereby a conclusion about the guilt of the accused can be safely drawn. Even if we hold that at some point of time, the_ Crl.A.Nos.402/2017 & 405/2017 24 _accused appellant had some knowledge or suspicion about A3 indulging in fraudulent misappropriation of gold, entrusted to A3, in the absence of some positive evidence indicating agreement to that effect, conspiracy could not be inferred.”_ (emphasis supplied) 41. In the instant case, the two circumstances or facts established by the prosecution, that is, granting of permission by the first accused to M/s.Serum Institute of India Limited for changing the volume of each unit of hepatitis vaccine from 10 ml to 5 ml and the keen interest shown by him to undertake the vaccination drive in Thiruvananthapuram District, do not prove beyond reasonable doubt that he had conspired with the second accused or any other person for unnecessarily purchasing huge quantity of hepatitis vaccine. 42. There is no allegation or evidence that the first accused forged or falsified any document or that he used any forged document as genuine. The specific case of the prosecution, as per the charge-sheet filed by the Vigilance and Anti-Corruption Crl.A.Nos.402/2017 & 405/2017 25 Bureau, is that Sri.Augustine Thomas (late), who was the Store Superintendent (Health) in the District Medical Store, Thiruvananthapuram, manipulated and forged the records and the indents forwarded by the medical officers for supply of the vaccine. There is absolutely no evidence to prove the involvement of the first accused in any conspiracy to commit such acts. Therefore, the first accused cannot be found guilty of the offences punishable under Sections 468, 471 and 477A of the I.P.C with the aid of Section 120B of the I.P.C. 43. As far as the second accused is concerned, there is no dispute with regard to the fact that she was the competent authority, as the District Medical Officer, to issue orders for the supply of hepatitis vaccine in Thiruvananthapuram District, as per the requirements of the medical institutions in that district. 44. In reaching the conclusion that the second accused had abused her position as a public servant in issuing Exts.P11 to P13 orders for the supply of Hepatitis B vaccine, the trial court has relied upon the following circumstances – (1) there was no Crl.A.Nos.402/2017 & 405/2017 26 requirement of huge quantity of hepatitis vaccine made by the medical institutions in the district (2) there was no proper facility to store huge quantity of vaccine (3) there was no outbreak of hepatitis in the district necessitating the purchase of huge quantity of vaccine and (4) no immunization programme against hepatitis was in force in the district. 45. PW4 had worked as Civil Surgeon in the Taluk Headquarters Hospital, Neyyattinkara during the period from May, 2002 to 31.03.2006. PW4 identified his/her signature in Ext.P10(d) indent for various medicines which was sent from that hospital. Ext.P10(d) shows that request for supply of 5000 vial hepatitis vaccine was made from that hospital. PW4 has not given any evidence that any person had compelled or persuaded him/her to make requisition for so much quantity of hepatitis vaccine. There is also no evidence of any forgery made in that document. 46. PW5 had worked as Civil Surgeon in the Taluk Headquarters Hospital, Chirayinkil during the period from June, Crl.A.Nos.402/2017 & 405/2017 27 2002 to 30.04.2004. He identified the signature of Dr. C.K.Balachandran Nair in Ext.P10(a) indent for various medicines which was sent from that hospital. Ext.P10(a) shows that request for supply of total 3000 vial hepatitis vaccine was made from that hospital. The prosecution has not offered any explanation for not examining Dr. C.K.Balachandran Nair. The prosecution has not adduced any evidence to find that any person had compelled or persuaded Dr. C.K.Balachandran Nair to make requisition for 3000 vial hepatitis vaccine. 47. PW9 was the Medical Officer of the Primary Health Centre, Peringamala during the period from September, 2001 to June, 2006. He has given evidence that there was no indent made from that hospital for hepatitis vaccine during the year 2002-2003 but hepatitis vaccine was received. 48. PW6 was the Pharmacist working in the Primary Health Centre, Peringamala. He has also given evidence that hepatitis vaccine was received in that hospital without giving any indent for it. Crl.A.Nos.402/2017 & 405/2017 28 49. The evidence of PW6 and PW9, that hepatitis vaccine was received in the Primary Health Centre, Peringamala even without giving any requisition for it, cannot be accepted as reliable. PW6 has given evidence that routine indent for medicines had been given from that hospital. The prosecution has not tendered in evidence that indent. Only by producing and proving that document, the prosecution could have established beyond reasonable doubt that there was no requisition made from that hospital for supply of hepatitis vaccine in the year 2002-2003. 50. PW7 was the Pharmacist in the Primary Health Centre, Vellarada during the period 2002-2003. Ext.P41 is the copy of the indent for various medicines made from that hospital. PW7 identified his handwriting in that document. PW15 was the Medical Officer of the Primary Health Centre, Vellarada during the period from 18.08.2001 to 11.01.2007. He identified his signature in Ext.P41 indent. Ext.P41 shows that request for supply of a total 20000 dose of hepatitis vaccine was made from Crl.A.Nos.402/2017 & 405/2017 29 that hospital. PW7 and PW15 have not given any evidence that any person had compelled or persuaded them to make requisition for so much quantity of hepatitis vaccine. On the other hand, PW15 has deposed that such quantity of hepatitis vaccine was required in that hospital. 51. PW10 was the Superintendent of the Government Hospital, Attingal during the period 2002-2003. PW11 was the Medical Officer of Kallara Primary Health Centre during that period. Their evidence was discussed earlier with reference to the meeting of the medical officers of Thiruvananthapuram District held on 06.03.2003. They have also given evidence that there was no indent given from the above hospitals, during the period 2002-2003, for the supply of hepatitis vaccine. The prosecution has not tendered in evidence the routine indent for various medicines given from the above hospitals for the above period. Without producing and proving those documents, the prosecution could not establish beyond reasonable doubt that there was no requisition made from the above hospitals for hepatitis vaccine 30 Crl.A.Nos.402/2017 & 405/2017 for the year 2002-2003. 52. PW13 was the Medical Officer of Kilimanoor Primary Health Centre during the period 2002-2003. Ext.P46 is the copy of the indent for various medicines made from that hospital for that period. It contains request for supply of 400 vial hepatitis vaccine. But, entry regarding it is made in Ext.P46 by way of interpolation. PW13 has given evidence to the effect that such interpolation was not made by anyone in the Kilimanoor Primary Health Centre. 53. PW14 was the Pharmacist in the Primary Health Centre, Pallichal during the period 2002-2003. She has given evidence that there was no indent for hepatitis vaccine given from that hospital for that period but the vaccine was supplied to that hospital. Her testimony in that regard cannot be accepted as reliable without the routine indent for medicines given from that hospital tendered in evidence. Ext.P48 letter addressed to the investigating officer by the medical officer of the Primary Health Crl.A.Nos.402/2017 & 405/2017 31 Centre, Pallichal, which contains information regarding the supply of vaccine to that hospital, is hit by Section 162 Cr.P.C. 54. PW16 was the Pharmacist in the Primary Health Centre, Pulluvila during the period 2002-2003. She has given evidence that there was no indent for hepatitis vaccine given from that hospital for that period but the vaccine was supplied to that hospital. Her testimony in that regard cannot be accepted as reliable without the routine indent for medicines given from that hospital tendered in evidence. PW16 identified the signature of Dr.Achamma, the Medical Officer of that hospital, in Ext.P50 letter addressed to the investigating officer. Ext.P50 letter contains information regarding the supply of vaccine to that hospital but that document is also hit by Section 162 Cr.P.C. The prosecution has also not offered any explanation for not examining Dr.Achamma. 55. PW17 was the Pharmacist in the Primary Health Centre, Karode during the period 2000-2006. Ext.P51 is the office copy of the indent for various medicines sent from that hospital. PW17 Crl.A.Nos.402/2017 & 405/2017 32 identified his handwriting in that document. PW18 was the Medical Officer of the Primary Health Centre, Karode during the period from November, 2001 to June 2006. He identified his signature in Ext.P51 indent. Ext.P51 shows that request for supply of 50 vial hepatitis vaccine was made from that hospital. 56. PW2 was a person who had worked as a Lower Division Clerk in the District Medical Store, Thiruvananthapuram during the period from 03.06.1997 to 02.06.2003. Ext.P28 is the consolidated statement showing the total quantity of hepatitis vaccine for which indents were given by the government medical institutions in Thiruvananthapuram District. It is a document prepared by PW2 and signed by PW19, who was holding charge of the Store Superintendent in the District Medical Store, Thiruvananthapuram. As per Ext.P28 document, the total quantity of hepatitis vaccine, for which indents were given by the government medical institutions in Thiruvananthapuram District, was 51630 vial. 57. PW19, who has signed Ext.P28 statement, has given Crl.A.Nos.402/2017 & 405/2017 33 evidence that he did so on the belief that the statement prepared by PW2 was correct. There is no evidence to show that PW19 had verified the indents before he signed Ext.P28 statement. PW2 has given evidence that he had not personally verified the indents for the purpose of preparing Ext.P28 statement. The evidence of PW2 itself would show that there are mistakes in that statement. In such circumstances, there is no assurance regarding the correctness of the figures mentioned in Ext.P28 statement and no reliance can be placed upon that document to find that the actual quantity of hepatitis vaccine, which was required by the government medical institutions in Thiruvananthapuram District, was 51630 vial. 58. The discussion above would show that the evidence adduced by the prosecution does not establish that the quantity of hepatitis vaccine, for which supply order was given by the second accused, was more than the quantity required or needed by the government medical institutions in Thiruvananthapuram District. As per Exts.P11 to P13, the total quantity of Hepatitis B Crl.A.Nos.402/2017 & 405/2017 34 vaccine for which supply order was given by the second accused, comes to 51400 vial. In order to prove that such quantity of vaccine had not been requisitioned or required by the government medical institutions in Thiruvananthapuram District, the prosecution should have proved the indents for medicines sent by all such institutions to the District Medical Office and the prosecution should have established that the total quantity of hepatitis vaccine required by those institutions as per the indents sent by them, was much less than 51400 vial. No attempt in that regard was made by the prosecution. Of course, the prosecution produced Ext.P10 file containing the indents sent by the government medical institutions in Thiruvananthapuram District to the District Medical Office but proved only five or six indents only. 59. Regarding the facility to store the vaccine, no reliable evidence has been adduced by the prosecution to prove that there was no proper facility in the government medical institutions in Thiruvananthapuram District to store the medicines Crl.A.Nos.402/2017 & 405/2017 **==> picture [13 x 9] intentionally omitted <==** and vaccines. 60. Of course, the prosecution has got a case that, on 19.02.2003, while hepatitis vaccine was being administered to the public at Kalliyoor Primary Health Centre, instead of that vaccine, insulin was administered to some persons and such an incident occurred because the vaccine and the insulin were kept in the same refrigerator. However, no person who had direct knowledge about this incident was examined by the prosecution. 61. The prosecution has not adduced any expert evidence to establish that there was no necessity to administer hepatitis vaccine when there was no outbreak of that disease or that it is necessary to administer the vaccine only when an outbreak of that disease is apprehended or anticipated. The prosecution has also got no case that there was any government order or circular in force which provided the guidelines for immunization programme against hepatitis. On the other hand, the evidence of some doctors who were examined by the prosecution would show Crl.A.Nos.402/2017 & 405/2017 36 that hepatitis vaccine is usually administered to infants and children as preventive measure. 62. Section 13(1)(d) of the Act provides that, a public servant is said to commit the offence of criminal misconduct, if he, - (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest. 63. A perusal of Section 13(1)(d) of the Act makes it clear that, if the elements of any of the three sub-clauses are met, the same would be sufficient to constitute an offence of 'criminal misconduct' under that provision. The three wings of clause (d) of Section 13(1) are independent, alternative and disjunctive. Thus, under Section 13(1)(d)(i) of the Act, obtaining any valuable thing or pecuniary advantage by corrupt or illegal Crl.A.Nos.402/2017 & 405/2017 37 means by a public servant in itself would amount to criminal misconduct. Under Section 13(1)(d)(ii) of the Act, "obtaining a valuable thing or pecuniary advantage" by abusing his official position as a public servant, either for himself or for any other person, would amount to criminal misconduct. Under Section 13(1)(d)(iii) of the Act, if a public servant, while he holds office, obtains for any person any valuable thing or pecuniary advantage without any public interest, it would amount to criminal misconduct. 64. To attract the provisions of Section 13(1)(d) of the Act, public servant should obtain for himself or for any other person any valuable thing or pecuniary advantage. Therefore, for convicting a person for an offence under Section 13(1)(d) of the Act, there must be evidence on record that the accused has obtained for himself or for any other person, any valuable thing or pecuniary advantage. 65. In the instant case, even if it is accepted that the second accused had issued orders for the supply of hepatitis Crl.A.Nos.402/2017 & 405/2017 38 vaccine of more quantity than required by the government medical institutions in Thiruvananthapuram District and by such act, she caused loss to the government, it is not sufficient to attract an offence under Section 13(1)(d) of the Act. There is no allegation or evidence on record to prove that the first or the second accused had obtained any valuable thing or pecuniary advantage. There is no specific allegation that any other person had obtained any valuable thing or pecuniary advantage. The allegation is that the act of the accused caused loss to the government. This allegation impliedly hints that only the companies which supplied the vaccine had obtained pecuniary advantage. 66. When the vaccine was sold by the companies at the price prescribed by the Central Purchase Committee, can it be said that the companies had obtained pecuniary advantage so as to attract the offence under Section 13(1)(d) of the Act ? The order for supply of the vaccine was given only to the companies approved by the Central Purchase Committee. The price paid for Crl.A.Nos.402/2017 & 405/2017 39 the vaccine supplied was at the rate prescribed by the Central Purchase Committee. There is no allegation or evidence that the vaccine was purchased or sold at an exorbitant or abnormal price. There is no allegation that any person had received any commission or “kickback” in the transaction. No doubt, the words “pecuniary advantage” are of wide amplitude. But, the companies which sold the vaccine as per the supply orders issued by the second accused obtained only the fixed price of the vaccine and nothing more. The money received by those companies towards the price of the vaccine cannot be treated as pecuniary 'advantage' in the context of Section 13(1)(d) of the Act. 67. Even if it is accepted that the second accused caused loss to the Government by purchasing more quantity of hepatitis vaccine than actually required or needed by the government medical institutions in Thiruvananthapuram District, that by itself, is not sufficient to fasten her with criminal liability. In this connection, the observations made by the Supreme Court in **C.Chenga Reddy v. State of Andhra Pradesh : AIR 1996 SC** Crl.A.Nos.402/2017 & 405/2017 40 ## **3390** , are very relevant. The Apex Court has stated thus: _“Whether or not the clearance of jungle on the right bank was necessary for removing obstruction of the jeep track was immaterial and what was relevant was whether the jungle clearance work had been undertaken or not. Making payment for clearance of jungle on the right bank, which was not necessary may give rise to an inference that the departmental officials had been negligent and did not act in the best interest of the department but from that action of the officials, it is not possible to draw the conclusion that the officials committed the offence alleged against them. …. If, the work was done, the question whether it was required to be done or not, could not be used as an incriminatory circumstance against the appellants to draw an irresistible inference of their guilt after excluding the hypothesis of their innocence. ….... The conclusions arrived at by the courts below that the official appellants did not follow the codal provisions and that they have committed gross financial irregularities and administrative lapses in the matter of clearance of the prickly pier jungle under Kudimaramath Rules and other relevant provisions cannot be faulted with but nonetheless, the same cannot be construed as "incriminating_ Crl.A.Nos.402/2017 & 405/2017 41 _circumstances" to fasten criminal liability on the appellants”._ (emphasis supplied) ## 68. In **Ramesh Chennithala v. State of Kerala : 2018** ## **(4) KLJ 647** , this Court has held as follows: _“It appears that there is a misconception among the officers of the VACB and the Police that loss caused to the Government or the Public Exchequer by a public servant in the discharge of his official functions is a ground for proceeding against him under the P.C Act. This misconception is the result of the wrong understanding of the scope and object of the Prevention of Corruption Act. …......... There can be instances where some benefit or advantage is caused to a person, or such benefit or advantage is derived by a person by the wrongful acts of a public servant or due to his carelessness in the discharge of his duty or due to malfeasance. In such cases, there may be corresponding loss to the Government or the Public Exchequer also. What matters in such cases, is not whether the public servant has just caused loss to the Government or the Public Exchequer, but whether there has been any vicious link or nexus between him and the person benefited, and whether the public servant_ Crl.A.Nos.402/2017 & 405/2017 42 _caused such benefit to the other person with the knowledge that his act will or may cause such benefit and cause loss to the Government or the Public Exchequer. In short, what is required for a prosecution is not simply that the Government or any Department of the Government or any Public body has sustained any loss. While proving such loss, the prosecution will have also to prove that a corresponding gain was made by the public servant or somebody else in whom he is interested or with whom he has vicious nexus. Just because some loss was caused to the Government or the Public Exchequer or to any public sector undertaking or corporation or public body, by the discharge of functions of a public servant, he cannot be prosecuted under the P.C Act. In short, mere instances of malfeasance or wrong administration or wrong discharge of functions or dereliction of duty will not cause a prosecution under the P.C Act. …. In all cases of malfeasance or misfeasance or wrong administration, or in all cases of loss caused to the Government by the discharge of duty by public servants, a prosecution under the P.C Act cannot be initiated. If it is only a case of dereliction of duty or wrong administration or malfeasance or misfeasance detected on enquiry, only disciplinary_ Crl.A.Nos.402/2017 & 405/2017 43 _action can be initiated against the erring public servant, and if any public servant has caused any wrongful loss to the Government by the discharge of his official functions improperly or wrongfully, or as the result of wrong administration or malfeasance or misfeasance, no doubt, the Government or the appropriate authority can recover the loss from him, and also initiate disciplinary action against him”._ 69. In the light of the decisions referred to above, it has to be found that, even if the second accused has caused loss to the Government by purchasing more quantity of hepatitis vaccine than actually required or needed by the government medical institutions in Thiruvananthapuram District, that by itself, is not sufficient to attract the offence under Section 13(1)(d) of the Act. 70. There is no allegation or evidence that the second accused forged or falsified any document or that she used any forged document as genuine. As in the case of the first accused, there is absolutely no evidence against the second accused also, Crl.A.Nos.402/2017 & 405/2017 44 to find that it was at her instance that Sri.Augustine Thomas (late), who was the Store Superintendent (Health) in the District Medical Store, Thiruvananthapuram, manipulated and forged the records and the indents forwarded by the medical officers for supply of the vaccine. Therefore, the second accused also cannot be found guilty of the offences punishable under Sections 468, 471 and 477A of the I.P.C with the aid of Section 120B of the I.P.C. 71. The conviction entered against the first and the second accused by the trial court is based on surmises and conjectures and it is not based on evidence of solid facts and it is liable to be set aside. 72. Consequently, the appeals are allowed. Conviction entered against and the sentence imposed on the appellants by the trial court for the offences punishable under Section 13(1)(d) and 13(2) of the Act read with Section 120B of the Indian Penal Code and under Sections 468, 471, 477A read with Section 120B of the Indian Penal Code and independently under Section 120B Crl.A.Nos.402/2017 & 405/2017 45 of the Indian Penal Code are set aside. The appellants are found not guilty of the above offences and they are acquitted of them. The bail bonds executed by them are cancelled and they are set at liberty. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr/18/05/2021 True Copy PS to Judge