Madras High Court
P.Baskarsuresh Kumar vs State Rep. By on 16 September, 2025
Author: M.Nirmal Kumar
Bench: M.Nirmal Kumar
Crl.A.No.1094 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 28.04.2025
PRONOUNCED ON : 16.09.2025
CORAM
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
Crl.A.No.1094 of 2022
P.Baskarsuresh Kumar ... Appellant
Vs.
State Rep. by
The Deputy Superintendent of Police,
Chennai City-I Detachment,
Vigilance and Anti Corruption.
Chennai.
(Crime No.19 of 2008). ... Respondent
PRAYER: Criminal Appeal is filed under Section 374(2) of Code of Criminal
Procedure, to set aside the conviction and sentence imposed by the learned
Special Judge under Prevention of Corruption Act/The Special Court for the
Cases under Prevention of Corruption Act at Chennai-104 in C.C.No.13 of
2011 dated 30.08.2022 for the offences under Section 7 of Prevention of
Corruption Act and sentenced to undergo 1 year Rigorous Imprisonment and
to pay a fine of Rs.1,000/- in default to undergo 3 months Simple
Imprisonment and 13(2) r/w 13(1)(d) of Prevention of Corruption Act and
Page No.1 of 32
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Crl.A.No.1094 of 2022
sentenced to undergo 2 years Rigorous Imprisonment and to pay a fine of
Rs.1,000/- in default to undergo 3 months Simple Imprisonment and to run the
sentences concurrently and acquit the appellant from the above case.
For Appellant : Mr.Abudu Kumar Rajaratinam,
Senior Counsel for Mr.S.Ashok Kumar
For Respondent : Mr.S.Udaya Kumar,
Government Advocate (Crl. Side)
JUDGMENT
The appellant was convicted by judgment dated 30.08.2022 in
C.C.No.13 of 2011 by the learned Special Judge, Special Court for the cases
under Prevention of Corruption Act, Chennai and sentenced to undergo one
year Rigorous Imprisonment and to pay a fine of Rs.1,000/- in default to
undergo three months Simple Imprisonment for offence under Section 7 of
Prevention of Corruption Act, 1988 and further he was convicted and
sentenced to undergo two years Rigorous Imprisonment and to pay a fine of
Rs.1,000/- in default to undergo three months Simple Imprisonment for
offence under Section 13(2) r/w 13(1)(d) of Prevention of Corruption Act,
1988. Challenging the same, the present criminal appeal is filed.
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2.Case of the prosecution is that the appellant employed as Assistant
Lecturer/State Drug Licensing Authority (Indian Medicine), Government
Siddha Medical College, Chennai is a public servant as per Section 2(c) of the
Prevention of Corruption Act. 1988. The defacto complainant in this case is
Dr.S.Marimuthu Elakkuvan, a qualified Doctor in Ayurvedic Medicine and
Surgery and running a pharmacy in the name of M/s.Nithya Ayurvedic
Pharmacy in Virudhunagar District. The defacto complainant submitted an
application under the Drugs and Cosmetic Rules 1945 for grant of License in
Form 25D for manufacture of 14 Ayurveda Products to the Director, Drug
Control, DMS Campus, Teynampet, Chennai on 16.10.2007. One
Mr.C.Rajendran received the application, assigned a number to the file in
No.15050/D2/1/2007. After getting approval from the Director, the
application with enclosures was sent to the Assistant Director, Drugs Control,
Virudhunagar District for inspecting the Manufacturing Unit and sent another
related enclosures to Ayurvedic Scrutiny Committee consisting of
Dr.Athiyasaraj and Dr.Ravi Selvam for their opinion and recommendation.
The Assistant Director Mr.S.A.Govinda Kumar forwarded the inspection
report pertaining to M/s.Nithya Ayurveda Pharmacy vide
R.C.No.3983/E/2007, dated 12.12.2007 to Mr.K.U.Chandra Sekar, Drugs
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Inspector who has inspected the Manufacturing Unit on 04.12.2007 and sent
his recommendation for grant of license in Form 25D for the manufacture of
14 products on 12.12.2007. The Government in G.O(D)No.420, Health and
Family Welfare (IM-2)2) Department, dated 07.11.2007 issued a notification
ordering the appointment of the appellant officer in charge to Drugs Testing
Laboratory (Indian Medicine), Arignar Anna government Hospital for Indian
Medicine Chennai as the Licensing Authority for the wholesale of Tamil Nadu
for the purpose of XVI of Drugs and Cosmetic Rules 1945 and the State
Government also constituted an Expert Committee under the provisions of
Rule 154(2) of Drug Cosmetic Rules 1945 and advising the State Licensing
Authority before issuance of license to any patent and proprietary Ayurveda,
Siddha and Unani Medicine for production of any manufacturing unit vide
G.O.D.No.752, Health and Family Welfare (IM-2)2) Department, dated
25.06.2008.
3.After the appointment of the appellant as in charge for the Drug
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Testing Authority and State Licensing Authority, the file of the defacto
complainant was sent to the appellant. Dr.Athisayaraj and Dr.Ravi Chelvan,
Members of the Scrutinizing Committee scrutinized the application of the
defacto complainant recommended for modification on three occasions. After
compliance by the defacto complainant, the Scrutinizing Committee
recommended for placing the application before the Expert Committee for
approval. The defacto complainant's application was placed before the Expert
Committee and the committee gave approval for proposal of the production of
14 Ayurvedic Medicine and recommended for issuance of license to
M/s.Nithya Ayurveda Pharmacy for manufacturing 14 Ayurvedic Medicine.
4.Mrs.Usha, Superintendent on receiving approval note and after
getting approval from the appellant on 30.07.2008 prepared the license in the
name of M/s.Nithya Ayurveda Pharmacy and obtained the signature of the
appellant and handed over the same to him. The appellant knowing the
approval by the Expert Committee had contacted the defacto complainant on
15.08.2008 and asked him to meet in person in Chennai. The defacto
complainant on 18.08.2008 came to the office of the appellant requesting for
issuance of license, at that time, the appellant demanded a sum of
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Rs.1,20,000/- as illegal gratification for issuance of license. Again on
20.10.2008, the defacto complainant contacted the appellant and the appellant
insisted to bring Rs.1,00,000/- for issuance of license. On 24.10.2008, the
defacto complainant had met the appellant and requested for issuance of
license and the appellant reiterated the demand for Rs.1,00,000/- bribe
amount. Not willing to pay the bribe amount, the defacto complainant lodged
a complaint to the respondent and FIR registered after verifying the veracity of
the complaint. Two official witnesses namely Mr.Mohammed Valliyullah
Sharif and Mr.Samuvel Arulraj enlisted and in presence of them, the bribe
amount of Rs.1,00,000/- was produced by the defacto complainant. The
numbers of the currency notes were recorded in the Entrustment Mahazar,
thereafter, the official witness Mr.Samuvel asked to handle the currency notes
dipped in the glass tumbler containing water mixed with Sodium Carbonate.
Thereafter, pre-trap proceedings recorded, thereafter, on the advice of the Trap
Laying Officer, the defacto complainant/decoy, accompanying witnesses along
with the trap team had gone to the office of the appellant. At about 06.15
p.m., the defacto complainant and Mr.Mohammed Valliyullah Sharif had come
to the office of the appellant and defacto complainant requested for issuance
of license, at that time, the appellant demanded by the bribe amount of
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Rs.1,00,000/-. The amount kept in the brown bag handed over to the appellant
who received the same, counted the same and kept it in the right side drawer
of the table, handed over the license and received acknowledgment, thereafter,
the defacto complainant came out, gave signal, Trap Laying Officer and trap
team entered, identified the appellant, phenolphthalein test conducted, turned
positive, the accompanying witness confirmed the demand, acceptance,
recovery proceedings recorded, appellant arrested, and thereafter handed over
the investigation to the Investigating Officer/PW15, who conducted
investigation, collected materials, seized the files, examined the witnesses,
recorded the statements, completed investigation, obtained sanction (Ex.P1)
under Section 19 of Prevention of Corruption Act, and after obtaining
sanction, charge sheet filed in this case.
5.During trial, on the side of the prosecution, PW1 to PW15 examined
and Exs.P1 to P34 marked and MO1 to MO3 produced. On the side of the
defence, the appellant examined himself as DW1 and Exs.D1 to D22 marked.
On conclusion of trial, the trial Court convicted the appellant as stated above.
6.The learned Senior Counsel appearing for the appellant submitted that
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the State Drug License Authority post for entire Tamil Nadu was created for
the first time and the appellant was appointed for the said post by
G.O(D)No.420, Health and Family Welfare (IM-2)2) Department, dated
07.11.2007, hence, there was some animosity within the Department for the
appellant getting the post. In fact there was Writ Petitions filed against the
appointment of the appellant in W.P.No.37869 of 2007 and this Court by
order, dated 28.01.2009 dismissed the same confirming the appellant's
appointment which had further infuriated the animosity against the appellant.
He further submitted that as far as defacto complainant is concerned, he is an
aggrieved person due to rejection of his application for three times, hence,
using defacto complainant a false complaint lodged against the appellant and
trap thrusted and projected as though the appellant demanded and received the
bribe amount. There are serious infirmities in the investigation and unfair
investigation conducted. The investigating is tainted, biased, one sided and
bolstered by PW14 and PW15 with malice. The conviction has been recorded
glossing over the materials and explanation of the appellant and brushing
aside the truth of the case. It is the specific case of the defacto complainant
who belongs to Madurai who is said to have travelled from Madurai to
Chennai on 24.10.2008, met the appellant in his office at 10.00 a.m and
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requested for license, at that time, the demand of Rs.1,00,000/- bribe amount
reiterated. In this case, the complaint came to be lodged at 02.00 p.m on
24.10.2008 and FIR registered immediately without verifying the antecedents
and the genuineness of the complaint.
7.The learned Senior Counsel further submitted that the accompanying
witness Mr.Mohammed Valliyullah Sharif and other witness Mr.Samuvel
Arulraj were immediately enlisted on the same day and pre-trap proceedings
said to have conducted in the DVAC office between 05.00 p.m and 06.00 p.m,
thereafter, reached the appellant's office at 06.15 p.m and the appellant
received the bribe amount at 06.45 p.m. According to the prosecution, the
Crime No.19 of 2008 came into existence on 24.10.2008 and the investigation
started only on 24.10.2008. On the contrary, the Crime No.19 of 2008 was
registered by the respondent on 23.10.2008. Ex.D5, the confidential report
and Ex.D7, a letter of office staff Gunasekaran will confirm the same and the
case now projected is a false and fabricated case. Exs.D21 and D22 are
requisition letters dated 23.10.2008 sent to the official witnesses for
deputation namely PW3 and Mr.Samuvel Arulraj which is not seriously
disputed. In these requisition letters Crime No.19 of 2008 is recorded. The
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suppression of registering of Crime No.19 of 2008 on 23.10.2008 and ... of
printed serial numbers proved by Exs.D19 & D20 would clearly establish how
investigation is unfair and biased.
8.The learned Senior Counsel further submitted that on the evening on
24.10.2008, at the time of arrest of the appellant, there was commotion and
protest by the staff in the office of the appellant. The Principal Secretary and
Director, Indian Medicine and Homeopathy/PW12 was informed who
enquired and sent confidential report (Ex.D5) to PW1/Principal Secretary,
Health and Family Welfare Department narrating the sequence and incident
happened in the office and PW12 briefed Deputy Superintendent of Police and
V & AC sleuths present in the scene of occurrence. This facts confirmed by
PW1 and PW12 and Ex.D5 marked. Contrary to the same, the trial Court not
considering the same stating that it is an intra-governmental communication is
not proper. In this case, one Dr.Prince is said to be involved in the alleged
incident, he is neither a witness nor an accused in this case. Infact, Dr.Prince
was detained and taken by the PW14/Trap Laying Officer are recorded in
contemporary documents which were not considered. The altercation during
the arrest of the appellant and staff members of the Indian Medicine and
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Homeopathy Department who were threatened by the DVAC officials that they
would also be implicated as abettors of the crime will confirm to what extent
the respondent would go to ensure success of trap and to implicate an accused
person. One Office Assistant was assaulted by V & AC officials who lodged a
complaint to PW12 on 24.10.2008 and the same is marked as Ex.D7. Ex.D7
confirms the assault to Gunasekaran. PW15/Investigating Officer was
present with the V & AC team during trap proceedings on 24.10.2008 will
confirm the illegality committed while arresting the appellant and no free and
fair investigation conducted in this case. Further, the prosecution in this case
fabricated Exs.D19 & D20 which were marked through PW14/TLO
confirming that FIR registered by the respondent in Crime No.20 of 2008 and
Crime No.18 of 2008 is supplied with printed FIR book in triplet form and the
same contains continuous serial numbers. If any antidate, postdate or any
other tampering is done during registration of FIR, the discontinuity in Serial
Number would reveal the same. The Serial Numbers are strictly to be adhered
by the Investigating Officer so that there cannot be any false implication or
fabrication of records. In this case, it is proved FIR in Crime No.19 of 2008 is
a doctored one.
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9.He further submitted that call details of PW2 marked as Ex.P33
confirms PW2/decoy was in Chennai even on 23.10.2008 whereas on the
contrary to the documentary evidence adduced PW2/decoy evidence is that he
came to Chennai only on 24.10.2008, hence, the foundational fact of the
prosecution proved false. In this case, the demand, acceptance is not proved.
Further, the trap money recovered from the table drawer of the appellant's
office. Further, the specific case of the appellant is that he was forced,
manhandled to handle the trap amount to confirm the phenolphthalein power
test. The commotion and beating of the staff in the Department, detention of
Dr.Prince and the report (Ex.D5) of PW12 confirms the trap had not taken
place as projected and the trial Court had not considered the evidence and
materials in this regard. In this case, the trial Court failed to consider PW1
and PW12 are Senior I.A.S Officers and they have no axe to grind against the
prosecution and they have nothing to support the appellant who have given
true and correct facts of the incident, not considered. Added to it, there have
been fabrication of records. These factors not considered by the trial Court.
Further, the sanctioning authority PW1 admits that based on the legal opinion
given by the Public Prosecutor, High Court of Madras, he accorded sanction.
Further, there is inordinate delay of 1 year and 4 months in according sanction.
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The requisition from DV & AC received on 06.11.2008 and the sanction
(Ex.P1) accorded only on 27.04.2010.
10.He further submitted that though the license was granted to the
defacto complainant on 21.07.2008, but corrections and rectifications were to
be carried out in the application filed by the defacto complainant and this has
not been done and it was later corrected and recorded in the minutes of the
third meeting held on 30.09.2008. Thus, in this case, the appellant
probablized his defence by cross examination examining himself as defence
witness and marking exhibits Exs.D1 to D22 disproved the case of the
prosecution and the defacto complainant/PW2 is untrustworthy and
accompanying witness/PW3 is an obliging and doubtful witness. The trial
Court not considered the defence explanation, not adverted to the evidence
produced, just glossed over the same without any justification. Hence, prayed
for acquittal.
11.In support of his submissions, the learned Senior Counsel relied on
the following decisions:
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● State of Punjab v. Madan Mohan Lal Verma reported in (2013) 14
SCC 153 for the point that when the demand and acceptance were not
established mere recovery of the bribe amount would not be sufficient.
● Vadivelu Thevar and another v. State of Madras reported in 1957 SCC
OnLine SC 13 for the point that the evidence has to be weighed and not
counted. It is a sound and well-established rule of law that the Court is
concerned with the quality and not with the quantity of the evidence
necessary for proving or disproving a fact. When the evidence is
wholly reliable nor wholly unreliable, the Court has to be circumspect
and has to look for corroboration in material particulars by reliable
testimony, direct or circumstantial.
● State of A.P and others v. Goverdhanlal Pitti reported in (2003) 4 SCC
739 for the point of malafide investigation.
● Mansukhlal Vithaldas Chauhan v. State of Gujarat reported in (1997)
7 SCC 622 and Central Bureau of Investigation v. Ashok Kumar
Aggarwal reported in (2014) 14 SCC 295 for the point that the sanction
for prosecution to be independent application of mind. In this case, the
sanction has been issued after 1 ½ years and more so after getting
opinion from the Public Prosecutor office and the sanctioning authority
was left with no choice but to mechanically accord sanction.
12.The learned Government Advocate (Crl. Side) strongly opposed the
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appellant's contention and submitted that the appellant demanded huge bribe
amount of Rs.1,20,000/- initially which was reduced to Rs.1,00,000/-. Earlier
the appellant was appointed as officer in charge of Drugs Testing Laboratory
(Indian Medicine), Arignar Anna Government Hospital for Indian Medicine
Chennai as Licensing Authority. Prior to it, the defacto complainant applied
for license for 14 Ayurvedic Products to the Director of Drugs Control Tamil
Nadu, DMS Complex, Chennai which was forwarded to the Zonal Office and
the Inspecting Authorities had visited the manufacturing place, gave
instructions, thereafter finding that the defacto complainant is a qualified
person and application to be in order had recommended sanction of license.
Thereafter, the defacto complainant met the appellant on 18.08.2008 at 01.30
p.m in his office, at that time, the appellant demanded a sum of Rs.1,20,000/-
to grant and issue license. Again on 20.08.2008, the defacto complainant
contacted the appellant over phone who reiterated the demand. Again on
03.10.2008, the defacto complainant contacted the appellant since he received
a missed call from the appellant's mobile phone. Again on 20.10.2008, the
defacto complainant contacted the appellant over phone, at that time, the
demand reduced to Rs.1,00,000/-. On 24.10.2008, the defacto complainant
met the appellant at 10.00 a.m in his office, demand of Rs.1,00,000/- reiterated
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by the appellant. Not willing to give the bribe amount, the defacto
complainant came to the respondent office and lodged a complaint (Ex.P4).
PW14/Deputy Superintendent of Police received the complaint (Ex.P4),
enquired and later registered FIR (Ex.P26) in Crime No.19 of 2008 at 02.00
p.m. The official witnesses namely PW3 and Mr.Samuvel Arulraj summoned,
they appeared before the DV & AC office at 04.00 p.m and they were
introduced to the defacto complainant. The official witnesses got acquainted
with the facts of the case and asked to clarify any doubt with the defacto
complainant, the pre-trap proceedings recorded in the entrustment mahazar
(Ex.P5), thereafter, the defacto complainant/PW2, official witnesses PW3 and
Mr.Samuvel Arulraj, Trap Laying Officer/PW14 and trap team went to the
office of the appellant. PW3 was asked to accompany the defacto
complainant/PW2, at the time of giving bribe amount and he was instructed to
keenly watch the conversation between PW2 and the appellant. PW2
instructed that only if the appellant demanded the bribe amount, the same to
be handed over. PW14/TLO and other team members took position standing
near the office of the appellant. At about 06.45 p.m, PW2 came out, gave pre-
arranged signal, immediately, PW14/TLO and Mr.Samuvel Arulraj went inside
the office room, enquired PW2 who confirmed the appellant's demand for the
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bribe amount and received the same, counted using both his hands, kept the
amount in the right side drawer of the table. PW3/official witness confirmed
the same. Thereafter, PW2 identified the appellant and the appellant was
questioned and he was perplexed and shivering. PW2 was asked to wait
outside. The appellant hand fingers washed with Sodium Carbonate solution
which turned pink colour collected in two bottles (MO2 and MO3).
Thereafter, the appellant informed that the amount was kept in the drawer
which was taken out by PW3, verified the currency note numbers (MO1) with
the entrustment mahazar (Ex.P5), thereafter, files pertaining to PW2's license
and related files seized, all recorded in the seizure mahazar (Ex.P9). PW3 and
Mr.Samuvel Arulraj, official witnesses and PW14/TLO signed the seizure
mahazar and the copy of the same handed over to the appellant. The appelant
was arrested, taken to the DV & AC office along with the seized articles. In
the meanwhile, PW3 and other official witness Mr.Samuvel Arulraj along with
one Gajendra Varadhan, Inspector, DV & AC went to the house of the
appellant, conducted a search, taken down inventories of the articles, searched
completed at about 10.00 p.m. From PW2, Exs.P6 & P8 were collected. After
the arrest, appellant produced for remand, PW14/TLO handed over the
investigation to PW15 who took up further investigation, examined the
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witnesses, recorded their statements, collected documents.
13.He further submitted that during investigation, it was found that the
appellant after taking in-charge over the licensing authority for Drugs Testing
Laboratory (Indian Medicine), Arignar Annar Government Hospital for Indian
Medicine though he was aware that the license was already granted to the
defacto complainant for 14 ayurvedic products, but appellant not handed over
the license to the defacto complainant with ulterior motive, further he
instructed PW7/Mrs.Usha, Office Superintendent not to despatch the license,
instead he received the license and kept it with him and demanded bribe.
PW15 after getting sanction for prosecution (Ex.P1) under Section 19 of
Prevention of Corruption Act, 1988 filed charge sheet in this case. During
trial, PW1 to PW15 examined and Exs.P1 to P34 marked and MO1 to MO3
produced. On the side of the defence, the appellant examined as DW1 and
Exs.D1 to D22 marked. The points and grounds raised which were negatived
by the trial Court, are again reiterated and re-agitated in the present appeal,
hence, the same to be rejected.
14.This Court considered the rival submissions and perused the
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materials available on record.
15.In this case, on the day of trap on 24.10.2008, there was some
commotion in the office of the appellant which is confirmed as could be seen
from the confidential report (Ex.D5) submitted in D.O.No.18250/A2/2008-1,
dated 29.10.2008 by PW12 addressed to the Principal Secretary to
Government, Health and Family Welfare Department, Chennai/PW1.
16.In the confidential report (Ex.D5), it is recorded that the complaint
(Ex.P4) of the defacto complainant was verified by the respondent by tracking
the mobile calls of the defacto complainant and the appellant, thereafter, the
trap arranged. The defacto complainant claimed he came to Chennai from
Madurai on 24.10.2008 but as per Ex.P33, he was in Chennai for two days on
23.10.2008 and 24.10.2008. On 23.10.2008, the defacto complainant at about
01.00 p.m met the appellant but he was turned out by the appellant and the
appellant asked the defacto complainant to appear on the next day on
24.10.2008. On 24.10.2008, again the defacto complainant approached the
appellant at about 10.30 a.m and the appellant asked him to wait in the office,
in fact lunch provided to the defacto complainant since the appellant had other
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official works. Later, at about 06.30 p.m., the defacto complainant came back
and there was some conversation between the appellant and the defacto
complainant, at that time, Dr.Prince, a former employee of TAMPCOL a friend
of the defacto complainant had come to the office of the appellant in his two
wheeler viz., Honda Activa. On the instructions of the appellant, Dr.Prince
received the graft amount of Rs.1,00,000/- and came out of the office and kept
the graft amount in his two wheeler and attempted to speed away. The DV &
AC sleuths outside the office caught hold of Dr.Prince and recovered the
packed amount containing cash. Since there was force used, the Office
Assistant Mr.Gunasekaran, an Ex-Service Man intervened and he was beaten
up. Dr.Prince and Mr.Gunasekaran and others were threatened that if they
interfered with DV & AC sleuths, they will also be added as abettors in the
case. Thereafter, one Deputy Superintendent of Police met PW12 and
informed about the trap and Dr.Prince was taken along with the appellant and
his two wheeler Honda Activa was asked to be detained in the office. Further,
the said Mr.Gunasekaran gave a complaint to PW12 informing that on
24.10.2008 at about 06.20 p.m after the office hours when he was cycling
home, 10 feet away from the gate four persons surrounded assaulted him using
force and he was dragged from the cycle and pulled into Ambassador car, he
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got hurt, cried for help and he was forcibly taken into the office and thorough
search made. Mr.Gunasekaran found Dr.Prince was searched taken inside the
office room of the appellant. In the meanwhile, Mr.Gunasekaran heard shout
and noise from the office room of the appellant forcing the appellant to
receive something. After sometime, Mr.Gunasekaran was let go. All these
events recorded by PW12 submitted a confidential report (Ex.D5) to PW1.
The copy of the Ex.D5 is available in the office file. This confidential report
(Ex.D5) acknowledged by PW1. In fact Exs.D1 to D7 marked through PW1.
The prosecution neither objected nor seriously disputed Exs.D1 to D7 in any
manner and no re-examination conducted to impeach the documents or any
clarification done. These documents Exs.D1 to D7 further reconfirmed by
PW12, Director of Indian Medicine & Homeopathy, Arignar Anna
Government Hospital Campus, Chennai. It is to be seen that both PW1 and
PW12 are Senior I.A.S Officers. The prosecution had not drawn any attention
and confronted neither Exs.D1 to D7 nor Exs.D8 to D14. All marked without
any objection.
17.Ex.D8 is the minutes of the Expert Committee meeting under the
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Chairmanship of the Commissioner between 21.07.2008 to 30.09.2008
wherein the Expert Committee members have met and deliberated the license
issue including that of defacto complainant. For six manufactures and the
defacto complainant's company M/s.Nithya Ayurvedic Pharmacy, it is recorded
that corrections to be carried out in the application. Ex.D10 is the declaration,
Ex.D11 is the Ayurvedic Medicines Details and Ex.D12 is the List of
Ayurvedic Patent Products.
18.It could be seen that as per Exs.P23 & P24, PW13 confirms that
there was some objection with regard to traditional formulations and its
ingredients, no authentic reference produced and usage of allopathy terms to
be removed and the formula chart to be made in Sanskrit. Further, the
specimen reliable formula chart, the date of expiry of the medicine, usage and
dosage, not provided. These details were lacking which were only rectified
later. In fact, in the final approval, the approval was subjected to correction.
Thus, the delay caused was due to non-furnishing of complete details. In the
meanwhile, the formation of Inspector of Drugs under Ayurveda, Siddha and
Unani has been bifurcated and attached to the Indian Medicine Unit are the
reasons for delay and not due to appellant. In the Expert Committee Meeting
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on 30.09.2008, the defacto complainant was granted license subject to the
corrections to be carried out in the application. From the minutes of the
meeting (Ex.D8), it is seen that the Member Secretary and Committee Member
signed the minutes only on 01.10.2008.
19.In this case, the complaint is that there was a demand on 15.08.2008,
18.08.2008, 17.09.2008, thereafter followed by 03.10.2008, 20.10.2008 and
24.10.2008. The demand becomes significant only after 01.10.2008, hence,
the demand on 03.10.2008, 20.10.2008 and 24.10.2008 to be considered. The
demand said to have taken place on 03.10.2008 by the appellant calling the
defacto complainant in his mobile phone and the defacto complainant/PW2
calling the appellant in his mobile on 20.10.2008 and finally on 24.10.2008
when the defacto complainant calling upon the appellant in person. Ex.P33 is
the Call Detail Records of the defacto complainant's mobile number
9487180463. This document marked through PW15/Investigaing Officer.
Though PW15 stated that one Rajasekar from BSNL gave the CDR of the
appellant, but not examined Rajasekar. Non examination of Rajasekar and
marking Ex.P33/CDR through PW15 is not acceptable. Added to it, without
65B Certificate, Ex.P33/CDR cannot be looked into in evidence against the
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appellant. In this case, admittedly, the Customer Application Form (CAF) of
PW2 and the appellant not collected. Further, the mobile phone of the
appellant in which number PW2 contacted the appellant, there is no details.
But as regards the appellant relying on Ex.P33, the same can be considered
when Ex.P33 produced as prosecution document. From Ex.P33, it is seen that
on 03.10.2008, there is only incoming SMS to the appellant and on
20.10.2008, there is two outgoing calls. The specific case of the defacto
complainant is that on 24.10.2008, he came to Chennai and stayed in Hotel
Shir Ram Nallamani, Egmore, Chennai and thereafter, at about 10.30 a.m., he
went to the office of the appellant. From Ex.P33, it is seen that on
23.10.2008, the defacto complainant was very much in Chennai coupled with
the fact that FIR in Crime No.19 of 2008 registered on 23.10.2008 as
contended by the appellant, gains significance in view of Exs.D21 & D22 both
dated 23.10.2008 in which the Crime No.19 of 2008 is mentioned. Ex.D21 is
the requisition letter to PW3 and Ex.D22 is the requisition letter to
Mr.Samuvel Arulraj. The Investigating Officer/PW15 not disputed issuance of
Exs.D21 & D22.
20.In this backdrop, looking at the confidential report (Ex.D5) of PW12
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gains significance and acceptance since PW14/TLO registered the case in
Crime No.19 of 2008 on 23.10.2008. Thus, on 23.10.2008, the trap
preparation initiated, but for some reasons could not be executed. This fact
recorded in Ex.D5 which exposes PW14's/TLO interest to somehow succeed
in trap though it might be against the true happenings and facts. It is also
confirmed that PW2, a motivated witness and PW3 though an official witness
losses its independency since he is an obliging witness is with DSP of V & Ac
whenever called but true facts not disclosed. Thus, the trap witness and
TLO/PW14 and Investigating Officer/PW15 all focused to somehow succeed
in the trap, hence, the entire trap is clouded with mystery.
21.It is to be seen that in this case, the said Gunasekaran, Office
Assistant gave the complaint to PW12. In Ex.D7 file, the letter of Dr.Prince
dated 29.10.2008 confirms that he had taken possession of his two wheeler
Honda Activa bearing Reg.No.TN-20-L-2785 and Dr.Prince detained and
taken by the respondent is recorded in Ex.D5 as well as in the letter of
Gunasekaran which is also available in Ex.D7 file. The said Dr.Prince is
neither examined as witness nor as accused. More so, when the specific
allegation against the Dr.Prince is that he was called by the appellant to collect
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the money on behalf of he appellant and he was caught. Thus, PW2, PW3 and
PW14/TLO and sleuths of DV & AC including PW15 were not sure whether
at all the appellant had demanded and received the bribe amount.
22.In one stretch it is projected as though the said Gunasekaran was
caught, beaten and enquired as though the bribe amount was handed over to
him and he took away. On the other side, it is projected that Dr.Prince took
the money in his two wheeler and he was caught and searched. The presence
of PW15/Investigating Officer is confirmed by Gunasekaran's letter. One
thing is certain that the alleged recovery from the right side drawer of the table
in the appellant's office room is not true. Since PW2 not only a motivated
witness and an untrustworthy witness. PW3 is an obliging witness in view of
Exs.D21 & D22 and Ex.P33/CDR exposes the hollowness and denial of bribe
by the appellant. In this case, the demand, acceptance and recovery all
clouded with mystery. Added to it, fudging of FIR in Crime No.19 of 2008 is
proved by Exs.P19 & P20. Both PW14/TLO and PW15/Investigating Officer
unable to give any explanation.
23.The appellant during questioning under Section 313 Cr.P.C gave a
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detailed explanation along with supporting materials to prove that how he was
fabricated and implicated with materials in the above case, the evidence of
PW2, PW3 are highly doubtful. PW14 and PW15 are the witnesses who are
focused only in success of the trap though it might be contrary to the truth.
Thus, referring to Exs.D5, D7, D8 & D15 to D20 and Exs.P8, P26, P33 &
P34, the appellant probablized his defence. Further, the appellant examined
himself as DW1 and he deposed in detail about the happenings. Except for
mere suggestions by the prosecution, nothing could be elicited to impeach and
discredit the evidence of DW1. Added to it, in this case, the defence exhibits
marked through PW1, PW2 and PW14. The prosecution had not raised any
objection to these documents and were unable to disprove the documentary
evidence in any manner. In this case, the appellant not only probablized the
defence but also disproved the case of the prosecution.
24.The trial Court invoking Section 20 and looking the case through
that prism is not proper. Though the trial Court stated that Dr.Prince has not
been examined, it is not impeached against the prosecution. On the other hand
the trial Court questioned the appellant not examining Dr.Prince as witness.
Likewise, the trial Court failed to look into the fact that at the earliest point of
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time even as on 29.10.2008 reference on the role of Dr.Prince and
Gunasekaran both mentioned in Ex.D5, a confidential report. All relevant
documents are available in Ex.D7 file. PW1 and PW12 both Senior I.A.S
Officers confirmed the defence exhibits exposing trap not conducted as
projected in the normal manner and use of force confirmed. Further, in this
case, request for prosecution to sanction under Section 19 of PC Act received
on 06.11.2008. After getting instruction from the Secretary, Health and
Family Welfare on 08.01.2010 and opinion from the State Public Prosecutor
on 21.01.2010, sanction for prosecution (Ex.P1) issued on 27.04.2010 i.e., one
and half years after the request. It is a collective decision and not independent
sanction by PW1. According sanction is a sacrosanct act of the sanctioning
authority who on study of materials to independently arrive at a satisfaction.
In this case, it is not so.
25.The Hon'ble Apex Court in State of Karnataka v. Ameer John
reported in (2007) 11 SCC 273 had held that ordinarily, before passing an
order of sanction, the entire records containing the materials collected against
the accused should be placed before the sanctioning authority. In this case,
Exs.D5 & D7 are the official documents which were not referred to while
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according sanction for prosecution. In Neeraj Dutta v. State (NCT of Delhi)
reported in (2022) 5 SCR 104, the Hon'ble Apex Court summaries the legal
position which is as follows:
“(a)Proof of demand and acceptance of illegal
gratification by a public servant as a fact in issue by the
prosecution is a sine qua non in order to establish the guilt of
the accused public servant under Sections 7 and 13(1)(d)(i) and
(ii) of the Act.
(b)In order to bring home the guilt of the accused, the
prosecution has to first prove the demand of illegal gratification
and the subsequent acceptance as a matter of fact. This fact in
issue can be proved either by direct evidence which can be in the
nature of oral evidence or documentary evidence.
(c)Further, the fact in issue, namely, the proof of demand
and acceptance of illegal gratification can also be proved by
circumstantial evidence in the absence of direct oral and
documentary evidence.”
26.In Soundarajan v. State Rep. By the Inspector of Police, Vigilance
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and Anti Corruption, Dindigul reported in 2023 Live Law (SC) 314, the
Hon'ble Apex Court had held that Sections 7 and 13(2) r/w 13(1)(d) of
Prevention of Corruption Act, 1988 cannot be said to be established unless
both the demand and acceptance are established.
27.In Mukhtiar Singh (since deceased, through his LR) v. State of
Punjab reported in 2017 (3) SCC (Crl.) 607, the Hon'ble Apex Court had held
that mere recovery of money is not sufficient to sustain a conviction under
Prevention of Corruption Act unless the prosecution proves demand and
voluntary acceptance of the bribe amount.
28.In view of serious deficiencies in the case of the prosecution, this
Court has no hesitation to hold that the prosecution has failed to discharge its
burden of proving demand and acceptance of illegal gratification beyond a
reasonable doubt. Further, this Court finds that the sanction order (Ex.P1) was
vitiated due to non-application of mind and the prosecution failed to prove the
essential ingredients of demand and acceptance of illegal gratification and the
presumption under Section 20 of the PC Act cannot be invoked in the absence
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of proof of demand.
29.In the result, this Criminal Appeal is allowed setting aside the
impugned judgment, dated 30.08.2022 in C.C.No.13 of 2011 passed by the
learned Special Judge, Special Court for the cases under Prevention of
Corruption Act, Chennai. The appellant is acquitted. Bail bond if any
executed shall stand cancelled. Fine amount if any paid shall be refunded.
16.09.2025
Speaking order/Non-speaking order
Index: Yes/No
Internet: Yes/No
vv2
To
1.The Special Judge,
Special Court for the Cases under Prevention of Corruption Act,
Chennai.
2.The Deputy Superintendent of Police,
Chennai City-I Detachment,
Vigilance and Anti Corruption.
Chennai.
3.The Public Prosecutor,
Madras High Court.
M.NIRMAL KUMAR, J.
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vv2
PRE-DELIVERY JUDGMENT IN
16.09.2025
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