IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 194 of 2000 Reserved on: 16.3.2010 Date of decision: 22.03.2010 State of H.P. ... Appellant Versus Ajay Mahajan & Ors. … Respondents Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant: Mr. J.S. Guleria, Assistant Advocate General. For the respondents: Mr. Raman Sethi, Advocate, for respondents No. 1 to 4 and 8. Mr. N.K. Sood, Advocate, for respondents No. 5 and 6. Mr. B.K. Malhotra, Advocate, for respondent No. 7. V.K. Ahuja , J.: This is an appeal filed by the State of H.P. under Section 378 Cr.P.C. against the judgment of the Court of learned Special Judge, Shimla, dated 7.9.1998, vide which he acquitted the respondents of the charges framed against them under Section 13(2) of the Prevention of Corruption Act read with Section 120-B I.P.C. and under Section 22 of the H.P. Prevention of Specific Corrupt Practices Act, 1983 and under Section 420 read with Section 120-B I.P.C.. 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 Briefly stated, the facts of the case are that in the year 1989, Government of H.P. wanted to purchase a large number of Allopathic drug kits for distribution to various Govt. Medical Centres, situated within the State of H.P. Consequently, tenders were invited through the Controller of Stores H.P., for supply of such kits. A number of drugs suppliers submitted their tenders and the tenders of Two firms were accepted and the rates quoted by them were approved and formal Notification of approval of rate contract was also issued on 18.9.1989. The kits were to be purchased by the Government through the Director health Services, H.P., Shimla and the consignments were to be dispatched directly to various Chief Medical Officers within the State. The Government accorded administrative approval for the purchase of kits worth Rs.76,83,673/- vide letter dated 16.12.1989, on a reference by the then Director Health Services, H.P., that is, respondent No. 7. After the administrative approval was accorded by the Government, respondent No. 7, Director Health Services placed order with two firms, to supply two consignments of 168 kits each to Chief Medical Officer, Kullu, on 28.12.1989 and 19.3.1990 respectively. It was mentioned in the supply orders that consignee or his representative would inspect the consignment at the premises of the Supplier firm. It is further alleged that a team consisting of O.P. Sharma, the then Deputy Director Health Services and S.N. Sharma, the then Assistant Drugs Controller, visited the premises of the firm on 27.3.1990 and they took eight different medicines and got the same analysed from the Government Analyst, who opined that the same of one of the medicines, D. Calcium batch No. 446 was sub-standard. 3 It is further alleged that inspite of the aforesaid report, having been furnished by the Govt. Analyst, the inspection team cleared the dispatch of the first consignment of 168 kits to the Chief Medical Officer, Kullu, to whom these were dispatched on 18.5.1990 and received by the Chief Medical Officer, Kullu, on the same day. It was alleged that respondent No. 7 as Director Health Services was supposed to have issued instructions to all the Chief Medical Officers to arrange for random sampling if the medicines contained in the kits, but he did not issue any such instructions to Chief Medical Officer, Kullu, apparently to favour the supplier of the medicines, with the result that these were supplied by the said Chief Medical Officer to various Sub Centres in between 19.5.1990 to 21.7.1990 without taking sample of any of the medicines. The second consignment of 168 kits was supplied by M/S Panacea Drugs and Pharmaceuticals Private Limited to Chief Medical Officer on 31.12.1990, who distributed it to the various Sub-Centres. It was alleged that respondents No. 1 and 3 are the partners of the Firm M/S Panacea Drugs and Pharmaceuticals Private Limited and these were purchased by the said firm from M/S Hindustan Disinfection, Pathankot, of which respondent No. 2 was the Manager. It was reported in some newspapers that the drugs supplied by these two Firms were sub-standard. An enquiry was conducted by the Vigilance Department. During enquiry, the Inspector General (Vigilance) wrote to Deputy Superintendent of Police, Kullu, to seize one of the kits and to submit the same to Superintendent of Police(Vigilance), Dharamshala, for getting its contents analysed from Govt. Analyst. Accordingly, some kits were taken in possession and these were sent to Government Analyst, Chandigarh, for analyzing the 4 medicines contained in the kit and other packets. According to the report submitted by the said Expert, eighteen medicines and other items were sub-standard. The said Analyst was also working as Government Analyst for H.P. during those days. Thereafter, Deputy Superintendent of Police(Vigilance), Kullu, deputed one Inspector for random checking, who found 145 tablets of different medicines were short, compared to the quantity mentioned on the labels of packets. Thereafter, the report appeared in the newspaper and respondent No. 7 as Director Health Services, constituted a team headed by himself including some other Chief Medical Officers. The team seized one of the kits. Respondent No. 7 kept that kit in his office, but took no action and the said kit was gutted in a fire, that broke out in the office in January, 1991. It was further alleged that in October, 1990, Drugs Inspector accused Ravinder Kumar, visited the premises of M/S Panacea Drugs and Pharmaceuticals Private Limited and took samples of nine medicines as per the orders of Chief Medical Officer, Dharamshala. Those samples were sent to Govt. Analyst, Chandigarh and five of the samples were found to be sub-standard. He applied to respondent No. 6 as Assistant Drugs Controller, to prosecute the firm for keeping sub-standard drugs, but he did not accord the sanction. It was also alleged that consignment of kits were not accompanied by any certificates of analysis of medicines contained therein, though it was one of the conditions of the rate contract that the kits would be accompanied by a certificate of analysis. It was alleged that inspite of the fact that there were no analysis reports with respect to the drugs contained in the kits, respondent No. 7 in his capacity as Director 5 Health Services released the payment of kits in favour of M/S Panacea Drugs and Pharmaceuticals Private Limited. It was alleged that respondent No. 7 as Director, respondents No. 5 and 6 as Deputy Director Health Services, in their capacities, as public servants, obtained pecuniary advantages for themselves and also helped their co- accused i.e. suppliers and manufacturers, to make financial gains at the cost of State Exchequer. Their action was punishable under Section 22 of the H.P. Prevention of Corrupt Practices Act and they were alleged to have committed these offences in furtherance of a criminal conspiracy. The case was registered by the Vigilance Department and after investigating and obtaining sanction from the Government, the challan was filed before the learned Special Judge(Forest) and respondents were tried for the offences as detailed above, leading to their acquittal. I have heard the learned counsel for the parties and have gone through the record of the case. On appraisal of the judgment of the learned trial Court, it is clear that the learned trial Court had observed at the outset that there is no direct evidence in support of the charge of alleged conspiracy. It was observed that the prosecution rests on circumstantial evidence and the learned trial Court had mentioned therein eight circumstances from (a) to (h) and had considered the evidence led in regard to all those circumstances. Under circumstance No. (a), the charge against respondent No. 7 was that as Director Health Services, he failed to write to Chief Medical Officer, Kullu, to arrange for random sampling of the medicines contained in the kits. It was observed by the learned trial 6 Court that the instructions were issued to all the Chief Medical Officers including Chief Medical Officer, Kullu and a letter wrote by respondent No. 7 dated 2.3.1990 was proved in this regard, which clearly shows that this circumstance was not proved and respondent No. 7 failed to write to the Chief Medical Officer, Kullu also while writing to other Chief Medical Officers. The second circumstance (b) was that certificates of analysis was not attached alongwith kits. To substantiate their case, the prosecution had examined PW-3 Jagdish Chand, the then Incharge of the Drugs Store, who failed to state that these certificates were not attached with the kits. An inference was drawn by the learned trial Court that these certificates were supplied by the supplier of the kits at the time of inspection by accused Deputy Directors, namely, respondents No. 5 and 6. Keeping in view the statement of PW-3 Jagdish Chand, it was hold that the said circumstance was not proved. The circumstance © was that 18 medicines contained in the kits of the first consignment were found to be sub-standard by the Government Analyst and inspite of that the second consignment of kits was accepted and its payment was made subsequently. The prosecution had not examined the then Superintendent of Police (Vigilance) who has sent these kits for analysis vide his letter and the learned trial Court had concluded that the prosecution has failed to prove that some kits were sent to the Government Analyst by the Superintendent of Police (Vigilance), which were seized from the Medicines Store Kullu. The report of the Public Analyst was not relied upon by the learned trial Court since there was no evidence in regard to 7 the sending of these samples to the office of the Government Analyst. Accordingly, it was observed that this circumstance also does not stand proved. The circumstance (d) was as to whether the accused respondents No.5 and 6, Deputy Directors had taken eight samples at the time of the inspection and one of those samples failed but still they cleared the dispatch of the consignment from the premises of M/S Panacea Drugs and Pharmaceuticals Private Limited to Chief Medical Officer, Kullu. The circumstance (f) was that respondent No. 7 on coming to know that the contents of the kits were short, did not cancel the supply of the second consignment of kits and made the payment of that consignment without any loss of time. The circumstance (h) was that on coming to know that the kits contained some sub-standard medicines, respondent No. 7 did not write to the Controller of Stores to cancel the rate contract and to blacklist the Firm. It has been concluded by the learned trial Court that all the three circumstances do not stand proved since there is no evidence in regard to these circumstances. On the other hand, it was observed that the accused have proved Ext. DB a letter dated 11.6.1990 written by respondent No. 7 as Director Health Services to Controller of Stores regarding the news item appearing in regard to purchase of medicines kits and had written to the Drugs Inspector, to supply him the copies of the analysis reports, Therefore, it was observed that respondent No. 7 did not remain silent and all the three circumstances were not proved in the absence of any evidence during the course of arguments. The circumstance (e) was in regard to shortage of 145 tablets of different kinds which were found to be less, but no action 8 was taken by respondent No. 7 to recover the cost of the medicines found short. The learned trial Court had referred to the testimony of PW-11 Sunder Singh, Inspector(Vigilance), in this regard who had gone to Sub Centre, Kullu, to check the medicines and various infirmities were found in his statement and I do not intend to reproduce the same. Suffice it to say that on the basis of the statement of the Drugs Inspector, the learned trial Court had come to the conclusion that any shortage was found by Inspector Sunder Singh PW-11, who brought the same to the notice of the Director of Health Services, respondent No. 7 also. The circumstance (g) was that respondent No. 6 did not grant permission to prosecute the Firm when approached by the Drugs Inspector, Dharamshala. It has come up in evidence that he filed a criminal complaint against M/S Panacea Drugs and Pharmaceuticals Private Limited in the Court of Sub Divisional Judicial Magistrate, Nurpur, in regard to variation, which is still pending. In regard to other complaints that there of minor variations but since respondent No. 6 had asked him not to file these complaints, these were not filed by him, but he did not produce any documentary evidence to substantiate these allegations. There had been improvement made by PW-9 Ravinder Kumar, Drugs Inspector, while making his statement in which there was no mention that accused S.N. Sharma had told him not to launch prosecution in four cases of minor variations. Keeping in view the improvement made in his statement made by PW-9 Ravinder Kumar, the learned trial Court had rightly concluded that this circumstance was also not proved. 9 During the course of hearing of the case, the learned Assistant Advocate general appearing for the State was not able to point out any of the findings based upon the circumstances to be incorrect. He did not mention to any evidence under any of the circumstances which was not considered by the learned trial Court or which stood proved from the evidence, but the learned trial Court came to the conclusion otherwise. Keeping in view these facts that no findings under any of the circumstances was proved to have been wrongly decided on the basis of the evidence. I do not find any reason to disagree with the findings recorded by the learned trial Court under all the circumstances by referring to the evidence under each head separately. Learned counsel for the respondents had also pointed out to a decision of this Court in State of H.P. Vs. Dr. C.L. Malhotra and others, 2002 (1) Shim. L.C. 280, in which also similar question had arisen. But that question had been decided by the learned Single Judge of this Court on the basis of the evidence that the conclusion drawn in that case was that the learned trial Court had rightly hold that charge of conspiracy was not proved and respondent No. 7 as Director of Health Services was also an accused in that case. The learned Single Judge had also concluded that there was nothing to show that payments were made to the Firm at his instance or under the orders of the accused including respondent No. 7, who was also an accused in that case. In that case also, similar circumstances had been considered by the learned Special Judge including that certificate of analysis did not accompany the consignment that the evidence shows that such a certificate of analysis was supplied by the Supplier. Accordingly the findings of the learned Special Judge in that case leading to the 10 acquittal of the respondents were upheld. In the present case since no infirmity has been pointed out in the judgment of the learned Special Judge during the course of arguments, I have no reason to interfere with the findings recorded by the learned trial Court holding that the prosecution has miserably failed to prove their case and as such, those findings do not call for an interference by this Court. In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by the appellant, which is dismissed accordingly. The bail bonds furnished by the respondents shall stand discharged. ( V.K. Ahuja ), March 22, 2010 Judge (BSS) 11