Kerala High Court

Dr.Shylaja vs State Of Kerala on 8 June, 2021

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
      THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI
  TUESDAY, THE 8TH 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 8TH 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 8th day of June, 2021



                             JUDGMENT

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 &

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 &

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.

Crl.A.Nos.402/2017 &

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 &

second accused as shown in the table below.

Offence Sentence/punishment 13(1)(d) and 13(2) of the Rigorous imprisonment for a Prevention Corruption Act period of five years and fine of read with Section 120B of Rs.50,00,000/- (Rupees fifty the I.P.C lakhs only) and in default of payment of fine, rigorous imprisonment for a period of twenty four months.

Section 120B of the I.P.C Rigorous imprisonment for a period of two years and fine of Rs.50,000/- (Rupees fifty thousand only) and in default of payment of fine, rigorous imprisonment for a period of four months.

      Section 468 read     with Rigorous imprisonment for a
      120B of the I.P.C         period of two years and fine of
                                Rs.50,000/-     (Rupees       fifty
                                thousand only) and in default of
                                payment     of   fine,   rigorous
                                imprisonment for a period of four
                                months.
      Section 471 read     with Rigorous imprisonment for a
      120B of the I.P.C         period of two years and fine of
                                Rs.50,000/-     (Rupees       fifty
                                thousand only) and in default of
                                payment     of   fine,   rigorous
                                imprisonment for a period of four
                                months.

Section 477A read with Rigorous imprisonment for a 120B of the I.P.C period of two years and fine of Rs.50,000/- (Rupees fifty thousand only) and in default of payment of fine, rigorous imprisonment for a period of four Crl.A.Nos.402/2017 &

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 &

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 &

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 &

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 &

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 &

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 &

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 &

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 &

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 Crl.A.Nos.402/2017 &

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 &

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 &

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 &

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 &

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 &

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 &

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 &

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 &

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 &

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 &

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 &

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 &

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 Crl.A.Nos.402/2017 &

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 &

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 &

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 &

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 &

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 &

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 &

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 &

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 &

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 &

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 &

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 &

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 &

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 &

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 &

to find that it was at her instance that Sri.Augustine Thomas