Crl.M.C. No. 2280 of 2020

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **TUESDAY, THE 5[TH] DAY OF OCTOBER 2021 / 13TH ASWINA, 1943 CRL.MC NO. 2280 OF 2020** **AGAINST CRIME NO.2/2019 OF VACB, THIRUVANANTHAPURAM** ## **PETITIONER/1ST ACCUSED:** **JAYAPRAKASH T.,** **RESIDING AT BRERA-45, BURMA ROAD, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM - 695011.** **BY ADV R.RAJASEKHARAN PILLAI** ## **RESPONDENT/STATE AND COMPLAINANT:** - **1 THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** - **2 THE CHIEF CHEMICAL EXAMINER TO GOVT., CHEMICAL EXAMINERS LABORATORY, RED CROSS ROAD, VANCHIYOOR P.O., THIRUVANANTHAPURAM - 695 035** **SRI A RAJESH SPL PP VACB** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION** **ON 30.09.2021, THE COURT ON 05.10.2021 PASSED THE FOLLOWING:** Crl.M.C.No.2280/2020 2 ## **“CR”** ## **R.NARAYANA PISHARADI, J ************************ Crl.M.C.No.2280 of 2020 ------------------------------------Dated this the 5[th] day of October, 2021 ------------------------------------------- ## **O R D E R** Abuse of power to absolve the accused in an Abkari case, by creating fake chemical analysis report, is the gravamen of the allegations against the petitioner in the case registered against him by the Vigilance and Anti-Corruption Bureau (VACB), Thiruvananthapuram Unit. 2. The petitioner, the first accused in the case, was employed as Scientific Officer in the Chemical Examiner's Laboratory, Thiruvananthapuram. The second accused was an Upper Division Typist in the same institution. 3. On 18.06.2014, at 16.30 hours, the Additional Sub Inspector of Police, Kaduthuruthy police station conducted a search in toddy shop No.24 in Group No.IV of the Kaduthuruthy Crl.M.C.No.2280/2020 3 Excise Range. Samples of toddy were collected from there. A case was registered in the matter as Crime No.682/2014 of the Kaduthuruthy police station under Section 102 of the Code of Criminal Procedure, 1973 (for short 'the Code'). The samples were forwarded, through the court, to the Chemical Examiner's Laboratory, Thiruvananthapuram for analysis. Methanol and formaldehyde, which are toxic and noxious substances, were detected in the samples. Chemical analysis certificate No.6043/2017 was prepared and forwarded to the Court of the Judicial First Class Magistrate-I, Vaikom. This certificate (Annexure-7) was received in the Court on 18.12.2017. However, Annexure-5 chemical analysis certificate, bearing the same number, in respect of the same samples, had been forwarded from the Laboratory on 13.11.2017 and received in the above Court on 17.11.2017. The result of analysis shown in Annexure-5 certificate was that the samples were found to be free from noxious substances injurious to health. 4. Issuance of two chemical analysis certificates, in respect of the same samples, showing contradictory results of analysis, Crl.M.C.No.2280/2020 4 led to departmental enquiry by the Joint Chemical Examiner. In that enquiry, it was revealed that Annexure-5 certificate, the fake one, was generated on 25.11.2017. The State Government ordered an enquiry by the VACB in the matter. On the basis of the findings made in the preliminary enquiry, Annexure-I F.I.R was registered against the petitioner and the second accused for the offences punishable under Sections 7, 13(1)(d) read with 13(2) and 15 of the Prevention of Corruption Act, 1988 (for short 'the Act') and also under Sections 465, 468, 471, 420 and 120B of the Indian Penal Code. 5. This application is filed by the first accused under Section 482 of the Code of Criminal Procedure, 1973 (for short 'the Code') for quashing Annexure-I F.I.R. 6. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 7. The allegations against the accused in Annexure-I F.I.R can be stated as follows: The licensees of the toddy shop somehow obtained information that, on chemical examination of the samples of toddy which were collected from the toddy shop Crl.M.C.No.2280/2020 5 conducted by them, methanol and formaldehyde were detected in the samples. In order to avoid legal proceedings against them, the licensees of the toddy shop hatched a criminal conspiracy with the first and the second accused to create fake chemical analysis certificate. Pursuant to such conspiracy, with the intention to cause wrongful gain to the licensees of the toddy shop, the first and the second accused abused their position as public servants and acted against public interest and generated fake chemical analysis certificate, by using the computer software in the Laboratory. The signature of the Assistant Chemical Examiner was forged in that fake certificate of analysis. The first and the second accused forwarded the fake chemical analysis certificate to the Court and the Sub Inspector of the police station concerned. 8. The statement filed by the investigating officer reveals that, three persons, who were the licensees of the toddy shop, have been subsequently arrayed as accused 3 to 5 in the case. 9. Joy Francis, the Technical Assistant in the Chemical Examiner's Laboratory, on conducting analysis of the samples of Crl.M.C.No.2280/2020 6 toddy, had found that the samples contained methanol and formaldehyde. The statement given by him to the investigating officer shows that he had prepared chemical analysis certificate to that effect and entrusted it on 10.11.2017 with Sheela Das, the Assistant Chemical Examiner and that she had signed that certificate on the same day. The statement of Joy Francis would indicate that some manipulation was done in the Chemical Examiner's Laboratory with regard to the certificate of analysis in respect of the samples of toddy collected from the toddy shop conducted by accused 3 to 5. This is also evident from the fact that another certificate showing a contradictory result of analysis was forwarded to the court. 10. The statement filed by the investigating officer shows that evidence has been collected which would indicate that the petitioner had generated fake chemical analysis certificate by using the software in the Toxicology Section in the Laboratory. 11. Annexure-5 certificate of analysis, which is alleged to be fake, was received in the Court of the Judicial First Class Magistrate-I, Vaikom on 17.11.2017. Annexure-5 certificate Crl.M.C.No.2280/2020 7 bears the seal of that court with the date 17.11.2017. The prosecution case is that the fake certificate was generated by the petitioner on 25.11.2017. Learned counsel for the petitioner would, therefore, contend that the very fact that Annexure-5 certificate was received in the court on 17.11.2017 would shatter the basis of Annexure-I F.I.R. Learned counsel would contend that the petitioner could not have created a fake certificate of analysis on 25.11.2017 which had already been received in the court on 17.11.2017. 12. The above contention, no doubt, is very appealing and attractive. But, it gives undue importance to the date of generation of the fake certificate mentioned in the F.I.R. The date mentioned in the F.I.R cannot be accepted as conclusive at this stage. Investigation could only reveal the actual date of generation of the fake certificate. There is allegation that, even before the preparation of the original certificate of analysis, the licensees of the toddy shop had obtained information with regard to the result of the analysis which was against them and that they entered into a conspiracy with the first and the second Crl.M.C.No.2280/2020 8 accused and managed to create or generate fake certificate of analysis. In the light of such allegation, the truth of which should be ascertained during the investigation, the date of generation of the fake certificate mentioned in the FIR cannot be treated as conclusive at this stage. 13. If the allegations made in the first information report, _prima facie_ , disclose a cognizable offence, interference with the investigation by invoking the power under Section 482 of the Code is not proper. It can be done only in the rarest of rare cases where the court is satisfied that the first information report does not disclose commission of any cognizable offence. Once an offence is disclosed, an investigation into the offence must necessarily follow in the interests of justice. Investigation is necessary to collect or gather necessary materials for establishing and proving the offence which is disclosed. In the absence of a proper investigation in a case where an offence is disclosed, the offender would succeed in escaping from the consequences to the detriment of the cause of justice and the society at large. It is on the basis of this principle that the Court Crl.M.C.No.2280/2020 9 normally does not interfere with the investigation of a case where an offence has been disclosed. Whether an offence has been disclosed or not must necessarily depend on the facts and circumstances of each particular case. In considering whether any offence is disclosed or not, the Court has mainly to take into consideration the allegations in the complaint or the first information report. In appropriate cases, the Court may take into consideration the relevant facts and circumstances of the case. On a consideration of all the relevant materials, the Court has to come to the conclusion whether an offence is disclosed or not. If on a consideration of the relevant materials, the Court is satisfied that an offence is disclosed, the Court will normally not interfere with the investigation into the offence and will generally allow the investigation into the offence to be completed for collecting materials for proving the offence (See **State of West Bengal v. Swapan Kumar Guha: AIR 1982 SC 949** and **Neeharika Infrastructure Private Ltd v. State of Maharashtra : AIR 2021 SC 1918** ). Crl.M.C.No.2280/2020 10 14. The offences alleged against the petitioner under the Act are under Sections 7, 13(1)(d) and 15 (before the amendment of the Act in 2018). Section 13(1)(d) of the Act states 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. 15. A perusal of the above provision 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'. 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 means by a public servant in itself would amount to criminal misconduct. Under Section 13(1) Crl.M.C.No.2280/2020 11 (d)(ii) of the Act, obtaining “any 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. 16. Section 7 of the Act, as it stood before amendment by Act 16 of 2018, penalises the act of a public servant, accepting or attempting to obtain any gratification other than legal remuneration as a motive or reward for doing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering any service or disservice to any person. 17. In the instant case, it is alleged that the petitioner abused his official position and acted against public interest. However, there is no allegation in the F.I.R that he actually received any illegal gratification from any person or that he obtained any valuable thing or pecuniary advantage for himself Crl.M.C.No.2280/2020 12 or any other person. Presumably, it is the reason for incorporating Section 15 of the Act in the F.I.R, which deals with attempt to commit the offence under Section 13(1)(d). 18. However, there is allegation against the petitioner that he forged the signature of the Assistant Chemical Examiner and created fake chemical analysis report and sent it to the Court and the Sub Inspector concerned. Such an act, prima facie, constitutes the offences punishable under Sections 465, 468 and 471 of the I.P.C as mentioned in Annexure-I F.I.R. Criminal conspiracy, punishable under Section 120B of the I.P.C, is also disclosed from the allegations in the F.I.R. 19. While examining the FIR, for the purpose of deciding whether it is to be quashed or not, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR. The first information report is not an encyclopedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police shall be permitted to complete Crl.M.C.No.2280/2020 13 the investigation. When a prayer for quashing the FIR is made by the accused, the court has to only consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider the merits of the allegations (See **Neeharika Infrastructure Private Ltd v. State of Maharashtra : AIR 2021 SC 1918** ). In order to examine as to whether the factual contents of the F.I.R disclose any cognizable offence or not, the High Court cannot act like an investigating agency. At this stage, the High Court cannot appreciate the evidence nor could draw its own inferences from the contents of the F.I.R (See **Dineshbhai Chandubhai Patel v. State of Gujarat : AIR 2018 SC 314** ). 20. Applying the above tests to Annexure-I F.I.R, it cannot be now found that the allegations therein do not disclose commission of any cognizable offence by the petitioner. 21. Even if it is found that the allegations in Annexure-I F.I.R do not disclose the offences under Sections 7, 13(1)(d) and 15 of the Act, the allegations disclose other offences under the Indian Penal Code mentioned therein. In such circumstances, the Crl.M.C.No.2280/2020 14 ## F.I.R cannot be quashed in part. ## 22. In **Rafiq Ahmedbhai Paliwala v. State of Gujarat :** **AIR 2019 SC 1537** , the Apex Court had occasion to observe as follows: _"It is not in dispute that no proper investigation could be made by the Investigating Officer (IO) much less concluded on the basis of the FIR lodged by the complainant and before it could be brought to its logical conclusion, the impugned order intervened resulting in quashing of the FIR itself in relation to cognizable offences which were of more serious in nature than the remaining one which survived for being tried. .... We cannot, therefore, countenance the approach of the High Court when it proceeded to quash the FIR partly in relation to more serious offences (Section 392, Section 395 and Section 397 IPC) without allowing the IO to make proper investigation into its allegations"._ (emphasis supplied) 23. At this juncture, it is to be noted that there is no prohibition under law for quashing a charge-sheet in part. There is no requirement that the charge-sheet has to be quashed as a whole and not in part (See **Ishwar Pratap Singh v. State of U.P : (2018) 13 SCC 612** ). Crl.M.C.No.2280/2020 15 24. Coming back to the facts of the present case, Annexure-I F.I.R is not liable to be quashed even in part. Consequently, the petition is dismissed. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr Crl.M.C.No.2280/2020 16 ## **APPENDIX OF CRL.MC 2280/2020** ## **PETITIONER'S ANNEXURES** **ANNEXURE I TRUE COPY OF THE FIR DATED 2/3/2019 OF THE VACB.** **ANNEXURE II TRUE COPY OF THE PETITIONER'S TRANSFER ORDER TO THE NARCOTIC DIVISION DATED 31/10/2017. ANNEXURE III TRUE COPY OF THE PETITIONER'S TRANSFER ORDER DATED 12/9/2018 TO THE TOXICOLOGY DEPARTMENT.** **ANNEXURE IV TRUE COPY OF THE ORDER DATED 26/9/2018 CANCELLING ANNEXURE 3. ANNEXURE V TRUE COPY OF THE CERTIFICATE RECEIVED IN THE JUDICIAL FIRST CLASS MAGISTRATE COURT VAIKOM ON 1/11/2017. ANNEXURE VI TRUE COPY OF THE DISPATCH REGISTER ISSUED TO THE PETITIONER, ANNEXURE VII TRUE COPY OF THE CERTIFICATE OBTAINED BY THE PETITIONER FROM THE JUDICIAL FIRST CLASS MAGISTRATE COURT VAIKOM.** **RESPONDENTS' ANNEXURES : NIL** ## **TRUE COPY** **P.S TO JUDGE**