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Madhya Pradesh High Court · body

2013 DIGILAW 1570 (MP)

Ashok Sharma v. State of M. P.

2013-12-18

G.S.SOLANKI, N.K.GUPTA

body2013
JUDGMENT : G.S. Solanki, J. Applicant has preferred this revision under Section401/397 of the Code of Criminal Procedure being aggrieved by the order dated 25.06.2013 (Annexure A-17) passed by Special Judge (Under Prevention of Corruption Act), Bhopal whereby charges under Section 420 of I.P.C. and Section13(1)(d) read with Section 13(2) of Prevention of Corruption Act and in the alternative under Section 15 of Prevention of Corruption Act, 1988 had been framed against the applicant. 2. Facts in short are that initially crime No.7/2009has been registered under Section 13(1)(d) and 13(2) of Prevention of Corruption Act (hereinafter referred to as theAct) against applicant Dr. Ashok Sharma and other coaccused persons, Dr. Rajesh Rajora, the then Commissioner, Health Services, M.M. Upadhyay, the then Principal Secretary, Department of Health and Family Welfare and Shri Ajay Vishnoi, the then Minister for Public Heath and Family Welfare, State of M.P. It was further alleged against aforesaid persons that they are being the member of purchase committee has recommended for purchase of anti-Tuberculosis drugs. It is further alleged that a memo of undertaking was signed by Secretary, Govt. of M.P. and the Secretary, Ministry of Health and Family Welfare, Govt. of India, New Delhi on 26/27.11.2005, wherein it was stated that drugs for treatment of Tuberculosis would be supplied by the Central Government and for that purpose, State Government does not make its own purchase and ensure that all Tuberculosis patients are prescribed RNTCP drugs and regimens to the furthest extent possible. It is further alleged that despite the aforesaid memo of undertaking, the applicant being Director of Health Services prepared a note sheet dated 20.04.2007 under the new drugs purchase policy of the year 2007-2008 and prepared a proposal for purchase of drugs amounting to Rs.12,84,99,960.47. He included Streptomycin injunction at Sl. No.78. Some query was made by Dr. Rajesh Rajora, the then Commissioner, Health Services and then he forwarded the note sheet with recommendations to Shri M.M. Upadhyay, the then Principal Secretary, Department of Health and Family Welfare. They get the approval from Shri Ajay Vishnoi, the then Minister on23.01.2008. In between, on 08.08.2007, a letter has been issued by the Secretary, Ministry of Health and Family Welfare, Govt. of India, New Delhi, to the Chief Secretary of Govt. They get the approval from Shri Ajay Vishnoi, the then Minister on23.01.2008. In between, on 08.08.2007, a letter has been issued by the Secretary, Ministry of Health and Family Welfare, Govt. of India, New Delhi, to the Chief Secretary of Govt. of M.P., wherein he objected the purchase of anti-Tuberculosis drugs but till then, the orders were placed to the M.P. Laghu Udyog Nigam and the M.P. Laghu Udyog Nigam had purchased the injunction like Streptomycin and supplied to different districts valued at Rs.7,47,422.90 and further made a purchase of Rs.4,97,175/- for Health Education Department and further Rs.19,25,178/- for Gas Tragedy Department. In this way, total purchase of Rs.31,99,949/-was made. 3. During investigation, it was found that applicant prepared the note sheet and included the injunction like Streptomycin in the list of drugs which is ought to be purchased despite the fact that such purchase was restricted by the Central Government by signing a memo of undertaking, as mentioned hereinabove. It is further alleged that this applicant has not apprised the aforesaid fact to his higher authorities like Dr. Rajesh Rajora, the then Commissioner, Health Services, Shri M.M. Upadhyay, the then Principal Secretary, Department Health and Family Welfare and Shri Ajay Vishnoi, the then Minister for Public Health and Family Welfare, State of M.P. and took the approval by misrepresenting the facts to them without making any note on the proceedings that the anti-tuberculosis drugs were also included in the purchase list of drugs under the new drugs purchase policy. It is further alleged that though the applicant has wrote a letter dated 08.08.2007 for cancellations of purchase orders No.141, 143, 145, 147, 149,151, 153, 155 to the Managing Director, M.P. Laghu Udyog Nigam but the orders placed for Health Education Department No.563, 565, 567, 569 dated 26.04.2007 and orders placed for Gas Tragedy Department No.762 dated15.06.2007 have not been canceled by the applicant. On the basis of aforesaid allegations, the applicant committed an offence of abusing his position as a public servant and obtains for himself or for any person for pecuniary advantage or he attempts to commit the aforesaid offence of obtaining pecuniary advantage by issuing an order for purchasing anti-Tuberculosis drugs worth Rs.31,99,949/-. On the basis of aforesaid allegations, the applicant committed an offence of abusing his position as a public servant and obtains for himself or for any person for pecuniary advantage or he attempts to commit the aforesaid offence of obtaining pecuniary advantage by issuing an order for purchasing anti-Tuberculosis drugs worth Rs.31,99,949/-. Therefore, after due investigation, applicant has been charge sheeted before Special Judge (Under Prevention of Corruption Act), Bhopal, who in turn passed the impugned order for framing of the charge vide impugned order dated 25.06.2013, hence this revision petition. 5. Learned counsel appearing on behalf of the applicant submitted that Government of India has never imposed complete restriction for purchase of life saving antituberculosis drugs and such purchase was permitted in case any shortage in supply. He further submitted that there was a massive shortage of anti-tuberculosis drugs and there was various demand letters sent by the government hospitals and dispensaries for immediate supply of aforesaid drugs, therefore, this applicant issued the order for purchasing aforesaid drugs is in anticipation of approval by the Principal Secretary and others, therefore, he has not committed any offence. He further submitted that whole purchase was made through M.P. Laghu Udyog Nigam. In these circumstances, the applicant was not a financial beneficiary in the aforesaid purchase. It is further submitted that the prosecution has not submitted the charge sheet under Section 15 of the Act for attempt to commit the offence under Section 13 of the Act. In these circumstances, the trial Court committed illegality inframing the additional charge under Section 15 of the Act. He, therefore, prays for setting aside the impugned order. 6. Learned counsel appearing on behalf of the respondent submitted that the trial Court had not committed any illegality in passing the impugned order and submitted that the Special judge has power to frame any additional charge, if he found that there is prima facie case for committing any offence against the applicant other than the offences alleged by the prosecution, therefore, he prays for dismissal of the revision petition. 7. I have perused the impugned order alongwith the case diary and the certified copy of the charge sheet. During the course of arguments the main attack was made on the memo of undertaking (Annexure R-1/A-18). 7. I have perused the impugned order alongwith the case diary and the certified copy of the charge sheet. During the course of arguments the main attack was made on the memo of undertaking (Annexure R-1/A-18). It is undisputed that aforesaid document was executed between the Secretary, Ministry of Health and Family Welfare, Government of India and Principal Secretary, Health and Family Welfare Department, Govt. of M.P. Clause (g) of the aforesaid document is reproduced as under :- “Service Delivery : The implementation of a program for tuberculosis control through : (i) a strategy of directly-observed treatment, short course (DOTS), ensure training of all cadres of health staff in all aspects of the RNTCP, ensure compliance with the guidelines of the RNTCP, ensure appropriate functioning of all health staff in the RNTCP, maintain a State Drug Store for the Project and undertake the logistics involved in the supply and distribution of drugs, ensure that the state utilizes drugs supplied by the RNTCP and does not make its own purchases of anti-tubercular drugs, and ensure that all TB patients are prescribed RNTCP drugs and regimens to the furthest extent possible.” In the aforesaid letter, it is stated in last two lines that the State Government does not make its own purchase of anti-tuberculosis drugs and ensure that all Tuberculosis patients are prescribed RNTCP drugs and regimens to the furtherest extent possible. The stress was given on the word to the furtherest extent possible and argued that there was no complete restriction for purchasing the drugs in connection with the patients of Tuberculosis. 8. Considering the aforesaid clause (g), we are of the view that there was no complete restriction to purchase the anti-tuberculosis drugs, but at the same time it was agreed between the Central Government and State of M.P. that they ensure that all tuberculosis patients are prescribed RNTCP drugs and regimens. Certainly, this very fact was in the knowledge of applicant, because during investigation, it was found that this memo of undertaking has been forwarded by the health department to the Director, Health Services, Satpura Bhawan, Bhopal. Therefore, this fact was within the knowledge of applicant and he could appraise this factual aspect to the higher authorities but such fact does not find place in the note sheet of proposal for purchasing the aforesaid drugs under new drugs policy. 9. Therefore, this fact was within the knowledge of applicant and he could appraise this factual aspect to the higher authorities but such fact does not find place in the note sheet of proposal for purchasing the aforesaid drugs under new drugs policy. 9. During the course of arguments, learned counsel for the applicant submitted that applicant had not abused his position for obtaining pecuniary advantage without any public interest. He placed reliance upon the decision of the Supreme in State of M.P. Vs. Sheetla Sahai and others AIR 2000 SC 1774. He further argued that there was a continuous demand from different places, regarding shortage of live saving drugs and number of letters have been received from different hospitals and dispensaries, therefore, he made a proposal for purchase of life saving injunction Streptomycin, which was in public interest, but the facts of the case in Sheetla Sahai (supra) was totally different. In the present-case, the main allegation against this applicant was that being a Director of Health Services, certainly he could have knowledge of memo of undertaking and despite the aforesaid-knowledge, he had prepared a note sheet of proposal for purchase of life saving drugs like Streptomycin and others used in tuberculosis, without the appraisal of the authorities from whom, later on approval was taken. 10. It was argued on behalf of the respondent that at the time of framing of charges, the court has prima facie besatisfied about the existence of sufficient ground for proceeding against the accused and for that limited purpose, the court has evaluated the documents on record but it cannot appreciate the evidence. He has placed reliance on the decision Supreme Court in State of Orissa and another Vs. Saroj Kumar Sahoo (2005) 13 SCC 540 . 11. It is true that at the time of framing of charge, thecourt has not required to appreciate the evidence to conclude whether the material produced before the court are sufficient or not for convicting the accused. There is difference between the evaluation of materials produced before the court and appreciation of evidence produced before the court at the time of framing of the charge. For evaluation, the court is allowed to look into the material only prima facie be satisfied about the existence of sufficient ground for proceeding against the accused. 12. There is difference between the evaluation of materials produced before the court and appreciation of evidence produced before the court at the time of framing of the charge. For evaluation, the court is allowed to look into the material only prima facie be satisfied about the existence of sufficient ground for proceeding against the accused. 12. In this case, applicant was Director of Health Services, the fact of memo of undertaking was in his knowledge, despite aforesaid knowledge, he was not placed the aforesaid document on record, when he was preparing the proposal and placed the order for purchase of Streptomycin and other anti-tuberculosis drugs for a total sum of Rs.31,99,949/- to the M.P. Laghu Udyog Nigam. Though it is on record that after complaint and some matters published in the news paper, applicant himself had canceled some orders No.141, 143, 145, 147, 149, 151, 153, 155, but remaining orders placed for Health Education DepartmentNo.563, 565, 567, 569 dated 26.04.2007 and orders placed for Gas Tragedy Department No.762 dated 15.06.2007 have not been canceled. It is on record that after cancellation, payment has not been made, but if the drugs were used, then it is inevitable liability on State Government to pay the value of aforesaid drugs to the suppliers. Since, at the stage of framing of charge, it was not expected from the trial court to appreciate the evidence on record as he is going to conclude that whether material produced before him are sufficient or not, to convict the accused, in these circumstances, trial Court has not committed any illegality in framing the charges under Section 13(1)(d) read with Section 13(2) of the Act and in alternative under Section 15 of the Act. 13. Considering the aforesaid facts and circumstances of the case, as discussed hereinabove, we are of the view that the trial Court has not committed any illegality in passing the impugned order of framing of charge against the applicant. In the result, revision petition fails is hereby dismissed.