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2014 DIGILAW 870 (CAL)

Gokul Hazam v. Central Bureau of Investigation

2014-09-09

JOYMALYA BAGCHI

body2014
JUDGMENT : Joymalya Bagchi, J. The appeal is directed against the judgment and order dated 29.07.2010 passed by the learned Judge, Special (CBI) Court, Bichar Bhawan, Calcutta convicting the appellant for commission of offence punishable under Sections 420, 468, 471 of the Indian Penal Code and under Section 5(2) of the Prevention and Corruption Act, 1947 and sentencing him to suffer rigorous imprisonment for two years and to pay a fine of Rs. 2,000/-, in default, to suffer simple imprisonment for two months on each count for the offences punishable under Sections 420, 468, 471 of the Indian Penal Code and under Section 5(2) of the Prevention and Corruption Act, 1947. All the sentences to run concurrently. 2. The prosecution case as alleged against the appellant is as follows: The appellant while being posted and functioning as hospital attendant in Railway Station during 1985 entered into criminal conspiracy with unknown persons with criminal intention to cheat Eastern Railway, procured a forged and fabricated certificate of registration as a registered Pharmacist purportedly issued by Pharmacy Council of the State of Bihar, Patna. The said registration certificate bearing Registration No. 9138 dated 05.02.1983 was submitted by the appellant in support of his claim that he had passed diploma in Pharmacy from RLSY College, Patna in 1979. The said document is a forged and fabricated one as such Registration Certificate bearing same number and date was issued by the concerned Council in the name of one Naresh Kumar Singh, son of Ram Chandra Singh of village - Pawa, District - Nalanda on 04.05.1983. 3. It is further case of the prosecution that on the basis of such forged certificate the appellant was appointed as Pharmacist Grade "B" in Eastern Railway Hospital at Andal on 30.08.1985 with effect from 8.8.1985 vide D.M.O's Order No. CPO/CCC's Order No. E 1140/MD/Pharmacist/Selection dated 08.08.1985 and office Order No. E/MED/Phar/PT. II dated 30.03.1985. It is further alleged that the appellant had never passed the Diploma in Pharmacy from the concerned College or any other College. On the basis of source information, first information report was lodged over the aforesaid incident being Crime No. RC4/90 dated 25.01.1990 under Section 120B, 420, 468, 471 of the Indian Penal Code and Sections 5(2) read with Section 5(1)(d) of the Prevention and Corruption Act, 1947. 4. In conclusion of investigation, charge-sheet was submitted against the appellant. On the basis of source information, first information report was lodged over the aforesaid incident being Crime No. RC4/90 dated 25.01.1990 under Section 120B, 420, 468, 471 of the Indian Penal Code and Sections 5(2) read with Section 5(1)(d) of the Prevention and Corruption Act, 1947. 4. In conclusion of investigation, charge-sheet was submitted against the appellant. Charges were framed under Section 420, 468, 471 of the Indian Penal Code and Sections 5(1)(d) read with Section 5(2) of the Prevention and Corruption Act, 1947 against the appellant. The appellant pleaded not guilty and claimed to be tried. 5. In course of trial, prosecution examined as many as ten witnesses. The defence of the appellant was of innocence and false implication. He, however, did not examine any witness to probabilize his defence. In conclusion of trial, the trial Judge by judgment and order dated 29.07.2010 convicted the appellant for commission of offence punishable under Sections 420, 468, 471 of the Indian Penal Code and under Section 5(2) of the Prevention and Corruption Act, 1947 and sentencing him to suffer rigorous imprisonment for two years and to pay a fine of Rs. 2,000/-, in default, to suffer simple imprisonment for two months on each count for the offences punishable under Sections 420, 468, 471 of the Indian Penal Code and under Section 5(2) of the Prevention and Corruption Act, 1947. All the sentences to run concurrently. 6. Mr. Mukherjee, learned senior counsel appearing for the appellant submitted that the investigation in the instant case was conducted by a Sub-Inspector of Police and the same was contrary to the provisions of the Prevention and Corruption Act, 1947. He further submitted that the sanction in the instant case was illegal and vitiated on the premise of dictation by supreme authority. Sanctioning authority (PW-3) in cross-examination had admitted that he had signed the sanction order upon dictation. He further submitted that the original Registration Certificate was not produced in Court. He submitted that neither the original nor the copy of the alleged forged Registration Certificate was seized from the office record of the appellant. There is no evidence that any forged certificate was submitted by the appellant. He further submitted that important witness, namely, Dr. K.M. Nand, Registrar of Bihar State Pharmacy Council and N.K. Singh in whose name the original certificate is alleged to be issued were not examined. There is no evidence that any forged certificate was submitted by the appellant. He further submitted that important witness, namely, Dr. K.M. Nand, Registrar of Bihar State Pharmacy Council and N.K. Singh in whose name the original certificate is alleged to be issued were not examined. He concluded that it is evident from cross-examination of the Investigating Officer (PW-10) that no investigation was done as to make out the authenticity of the Registration Certificate seized from the appellant in the instant case. He accordingly prayed for acquittal of the appellant. 7. Mr. Ali, learned counsel appearing for the Central Bureau of Investigation submitted that the investigation was conducted by the Sub-Inspector of Police pursuant to permission obtained from the learned Sub-Divisional Judicial Magistrate in terms of Section 5A of 1947 Act. He submitted that evidence on record clearly establishes the fact that forged Registration Certificate was submitted by the appellant in support of his claim that he had obtained a Diploma in Pharmacy from Bihar State Pharmacy Council, Patna. He submitted that copy of the forged certificate was seized from the custody of the appellant. He accordingly prayed for dismissal of the appeal. 8. PW-2, Dr. M. Chatterjee was the Medical Superintendent of Andal Hospital. He has stated that the appellant used to work as Pharmacist in the Hospital during his tenure. Diploma in Pharmacy was required for appointment as Pharmacist. D. Pharma Certificates are issued by recognised Government Authority. He issued letter upon the appellant on 30.11.1989 calling upon him to submit original certificate of registration as pharmacist as desired by D.R.M. Asansol. He has exhibited such letter as Exbt. 1. Under cover of letter dated 4.12.1989 original certificate submitted by the appellant was forwarded to the Senior Medical Superintendent, Eastern Railway, Asansol. The said letter was written by Dr. B. N. Das (PW-2) has proved his signature being Exbt. 2/1. PW-2 has also proved the sanction order being Exbt. 9. In cross-examination he however admitted that he was directed to sanction and put his seal on the sanction letter and hence he signed and put official seal thereon. 9. PW-3 was the Head Clerk of the Office of the Medical Superintendent, Eastern Railway from 1985-1994. He has proved the letter dated 30.11.1989 issued by the Medical Superintendent upon the appellant calling upon him to submit his original certificate of registration as Pharmacist within 01.12.1989. 9. PW-3 was the Head Clerk of the Office of the Medical Superintendent, Eastern Railway from 1985-1994. He has proved the letter dated 30.11.1989 issued by the Medical Superintendent upon the appellant calling upon him to submit his original certificate of registration as Pharmacist within 01.12.1989. The letter has been exhibited as Exbt. 4. He has identified the letter dated 01.12.1989 issued by the appellant in response to the aforesaid letter dated 30.11.1989 whereunder the appellant submitted his original certificate of registration. He has proved the signature of the appellant on the said letter as also the endorsement thereon written by Dr. M. Chatterjee (PW-1) on the body of the letter. The letter was exhibited as Exbt. 5. He also proved the letter dated 04.12.1989 issued by Medical Superintendent, Eastern Railway, Asansol to Senior Medical Superintendent, Eastern Railway, Asansol forwarding certificate submitted by the appellant. Such letter has been exhibited as Exnt. 6. He has also identified copy of the registration certificate which was forwarded under Exbt. 6. He has proved the office order appointing the appellant to the post of Pharmacist. 10. PW-4 was posted as Asansol D.P.O. He has proved his signatures in the service book of the appellant. PW-5 was posted in the Medical Section of Personnel Department, D.R.M., Asansol. It was his duty to make necessary entries in the service book of the employees of his section. He had made necessary entries in the service book of the appellant which duly proved the appointment of the appellant to the post of Pharmacist. 11. PW-7 is an employee of the Bihar State Pharmacy Council, Patna. He was shown the copy of the Registration Certificate standing in the name of the appellant. He denied that the signature on the said Registration Certificate was one of Dr. K.M. Nand, Registrar of the Council in 1983. He stated that the certificate also did not bear his signature. He deposed that the seal on the certificate was not that of the Council. The signature on the photograph of the certificate was also not that of Dr. Nand. He produced the extract copy of the Registration Certificate in respect of Registration No. 9138 showing that the same was issued to one N.K. Singh, son of Ram Chandra Singh on 04.05.1983. 12. PW-8 the then Vigilance Officer posted at Vigilance Department, Eastern Railway, Fairly Place, Calcutta. Nand. He produced the extract copy of the Registration Certificate in respect of Registration No. 9138 showing that the same was issued to one N.K. Singh, son of Ram Chandra Singh on 04.05.1983. 12. PW-8 the then Vigilance Officer posted at Vigilance Department, Eastern Railway, Fairly Place, Calcutta. He submitted that departmental case was started against the appellant and case was investigated by one Inspector, Sri S.K. Sur. All papers effected by the Vigilance Inspector and the service book of the appellant was submitted in his custody and he handed over the papers including joint statement of appellant and the Inspector to the Officer of Central Bureau of Investigation. He has proved his signature on the signature memo. He has identified the service book of the appellant. 13. PW-9 is the handwriting expert who has stated that the signature of Dr. K.M. Nand, Registrar of the Council, on the copy of the forged document did not tally with the specimen signatures of Dr. Nand. 14. PW-10 is the Investigating Officer of the case. In course of investigation he has raided the house of the appellant and seized a copy of the registration certificate from his custody upon preparation of seizure list. 15. Firstly let me examine the issue as to whether the investigation conducted by the Sub-Inspector of Police attached to Central Bureau of Investigation by PW-10 was permissible in law or not? 16. Section 5A of the Act reads as follows: "5-A. Investigation into cases under this Act. 15. Firstly let me examine the issue as to whether the investigation conducted by the Sub-Inspector of Police attached to Central Bureau of Investigation by PW-10 was permissible in law or not? 16. Section 5A of the Act reads as follows: "5-A. Investigation into cases under this Act. – (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898), no police officer below the rank - (a) in the case of Delhi Special Police Establishment, of an Inspector of Police; (b) in the Presidency towns of Calcutta and Madras, of an Assistant Commissioner of Police; (c) in the Presidency town of Bombay of a Superintendent of Police; and (d) elsewhere, of a Deputy Superintendent of Police; shall investigate any offence punishable under Section 161, Section 165 or Section 165-A of the Indian Penal Code, 1860 (Act XLV of 1860) or under Section 5, of this Act, without the order of a Presidency Magistrate or a Magistrate of First Class, as the case may be, or make any arrest therefor without a warrant: Provided that if a police officer not below the rank of an Inspector of Police is authorised by the State Government in this behalf by general or special order, he may also investigate any such offence without the order of a Presidency Magistrate or a Magistrate of the First Class, as the case may be, or make arrest therefor without a warrant: Provided further that an offence referred to in clause (e) of sub-section (1) of Section 5 shall not be investigated without the order of police officer not below the rank of a Superintendent of Police. (2) If, from information received or otherwise, a police officer has reason to suspect the commission of an offence which he is empowered to investigate under sub-section (1) and considers that for the purpose of investigation or inquiry into such offence, it is necessary to inspect any banker's books, then notwithstanding anything contained in any law for the time being in force, he may inspect any bankers books in so far as they relate to the accounts of the person suspected to have committed that offence or of any other person suspected to be holding money on behalf of such person, and take or cause to be taken certified copies of the relevant entries therefrom, and the bank concerned shall be bound to assist the police officer in the exercise of his powers under this sub-section: Provided that no power under this sub-section in relation to the accounts of any person shall be exercised by a police officer below the rank of a Superintendent of Police, unless he is specially authorised in this behalf by a police officer of or above the rank of a Superintendent of Police." 17. A perusal of the aforesaid provision shows that no Police Officer below the rank of Inspector of Police attached to Delhi Police establishment shall investigate an offence under Section 5 of the Prevention and Corruption Act, 1947 or make any arrest without warrant except by an order of a Presidency Magistrate or Magistrate of First Class as the case may be. 18. Exbt. 23 in the instant case shows that by order dated 07.03.1990 the learned Sub-Divisional Judicial Magistrate, Asansol gave permission to PW-10 to investigate the instant case. 19. Accordingly I am of the view that the investigation conducted by PW-10 who was a Sub-Inspector of Police attached to Delhi Police Establishment pursuant to permission granted by learned Magistrate cannot be said to be without authority of law. 20. Section 6 of the Act provides for grant of sanction for the purpose of prosecution under the aforesaid Act. The said provision, inter alia, provides that no Court shall take cognizance of offence under Section 5(2) of the Act except with the previous sanction of the sanctioning authority. PW-2 is the sanctioning authority in the instant case. 21. 20. Section 6 of the Act provides for grant of sanction for the purpose of prosecution under the aforesaid Act. The said provision, inter alia, provides that no Court shall take cognizance of offence under Section 5(2) of the Act except with the previous sanction of the sanctioning authority. PW-2 is the sanctioning authority in the instant case. 21. In cross-examination PW-2 has stated that he did not prepare the sanction order himself and had signed and put official seal thereon as he was directed to do so. Grant of sanction is not an empty formality. Decision to grant sanction must be of the sanctioning authority alone and of no other person. 22. Mr. Ali, learned counsel appearing for the CBI submitted that PW-2 had perused the certificate as well as the records of the case and hence the certificate is a valid one. 23. PW2 did not grant sanction in the instant case on his own but had been directed to do so. In Anirudhsinhji karansinhji Jadeja & Anr. v. State of Gujarat (1995) 5 SCC 302 the Apex Court set aside a sanction order of DSP which was passed on the dictation of the Additional Chief Secretary even though such dictation was on the prayer of the sanctioning authority. The Court held as follows: "This is a case of power conferred upon one authority being really exercised by another. If a statutory authority has been vested with jurisdiction, he has to exercise it according to its own discretion If the discretion is exercised under the direction or in compliance with some higher authority's instruction, then it will be a case of failure to exercise discretion altogether. In other words, the discretion vested in the DSP in this case by Section 20-A(1) was not exercised by the DSP at all." 24. Similarly in Mansukhlal Vithaldas Chauhan v. State of Gujarat, (1997) 7 SCC 622 the Court held, "19. Since the validity of `Sanction' depends on the applicability of mind by the sanctioning authority to the facts of the case as also the material and evidence collected during investigation, it necessarily follows, that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not. Since the validity of `Sanction' depends on the applicability of mind by the sanctioning authority to the facts of the case as also the material and evidence collected during investigation, it necessarily follows, that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force be acting upon it to take decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. If is shown that the sanctioning authority was unable to apply its independent mind for any reason whatsoever or was under an obligation or compulsion or constraint to grant the sanction, the order will be had for the reason that the discretion of the authority 'not to sanction' was taken away and it was compelled to act mechanically to sanction the prosecution." 25. Hence, an order of sanction which is the product of dictation cannot be said to be a valid one. Accordingly, I am constrained to hold that the sanction order in the instant case was not issued on the independent decision of PW 2 but was a product of dictation. The prosecution of the appellant under section 5(2) of the Prevention of Corruption Act, 1947 pursuant to such invalid sanction is illegal and without authority of law. Conviction of the appellant under section 5(2) read with section 5(1)(d) of the Prevention and Corruption Act, 1947 therefore is liable to be set aside on this score alone. 26. With regard to the conviction of the appellant for commission of offence punishable under sections 420, 468 and 471 IPC, Mr. Mukherjee, learned senior counsel appearing on behalf of the appellant has strenuously argued that the conviction is liable to be set aside as the original registration certificate has not been exhibited in the instant case. 27. I am unable to agree with such submission of the learned senior counsel appearing on behalf of the appellant. Mukherjee, learned senior counsel appearing on behalf of the appellant has strenuously argued that the conviction is liable to be set aside as the original registration certificate has not been exhibited in the instant case. 27. I am unable to agree with such submission of the learned senior counsel appearing on behalf of the appellant. The evidence of PW2, PW4 and PW 5 clearly established that pursuant to letters written to the appellant, the appellant had under the cover of letter dated 01.12.1999 submitted the original certificate of registration claiming the same to be genuine. Such certificate was forwarded to the Senior Medical Superintendent, Eastern Railway, Andal under cover letter dated 04.12.1989 being exhibit 6 in the instant case. It is therefore established that the appellant had submitted an original registration certificate as pharmacist in support of such claim. In the course of investigation, a copy of the registration certificate purportedly issued by the Bihar Pharmacy Council was seized from the custody of the appellant. PW3 has identified the certificate submitted by appellant which was forwarded under cover of letter dated 4.12.1989 (Exhibit-6). PW 7 stated that such certificate was not issued by the council in favour of the appellant and the extract of the Register maintained by the Council showed that registration certificate being no.9138 had been issued to one Naresh Singh. PW7 was an employee of Bihar Pharmacist Council and is acquainted with the signature of Dr. K.M. Nand, the then Registrar of the Council. He has submitted that signature of Dr. Nand purportedly on the copy of the registration certificate produced by the appellant was not of his signature. He had also deposed that the seal on the registration certificate of the appellant was not that of the Council. PW 9, hand writing expert, also corroborated such evidence. Hence, there is no escape from the conclusion that the registration certificate being no. 9138 purportedly issued by the Bihar Pharmacy Council in the name of the appellant is a forged one. Such certificate was seized from the custody of the appellant and no explanation is forthcoming from his end to justify the same. Evidence of prosecution witnesses and letter dated 01.12.1989 containing signature of the appellant being the endorsement thereon being Exhibit. 9138 purportedly issued by the Bihar Pharmacy Council in the name of the appellant is a forged one. Such certificate was seized from the custody of the appellant and no explanation is forthcoming from his end to justify the same. Evidence of prosecution witnesses and letter dated 01.12.1989 containing signature of the appellant being the endorsement thereon being Exhibit. 5/2 and exhibit 5/1 and exhibit 6 (letter dated 04.12.1989) clearly establishes that the appellant had submitted the aforesaid forged registration certificate in original with the Railway Authority to justify that he was a pharmacist. Evidence is also on record that the appellant was promoted to the post of pharmacist on the strength of such forged document. Hence, the prosecution has been able to prove beyond reasonable doubt that the appellant made false representation that he was a qualified registered Pharmacist with Bihar Pharmacy Council and in support of such false claim he knowingly submitted a forged registration certificate purportedly issued by Bihar Pharmacy Council. Accordingly, he was promoted to the post of Pharmacist in the hospital. In the fact of the consistent evidence as aforesaid, non-examination of Dr. Nand (former Registrar of Bihar Pharmacy Council) and N.K. Singh (holder of the original certificate) cannot millitate against the authenticity of the prosecution case. Offence punishable under sections 420, 468 and 471 of the IPC is therefore established beyond reasonable doubt. 28. Accordingly, I uphold the conviction of the appellant for commission of offence punishable under sections 420, 468 and 471 of the IPC. I set aside the conviction of the appellant for offence punishable under section 5(1)(d) read with section 5(2) of the Prevention and Corruption Act, 1947 on the premise that the order of sanction (exhibit 9) was a product of dictation and not a valid one. 29. The incident has occurred more than 30 years ago and the appellant is about 70 years of age. 30. In view of the aforesaid, I reduced the sentence imposed upon the appellant and direct him to suffer rigorous imprisonment for one year and to pay find of Rs. 2000/- in default to suffer simple imprisonment for two months more on each count for the offences punishable under sections 420, 468 and 471 of the I.P.C. All the sentences to run concurrently. 31. 2000/- in default to suffer simple imprisonment for two months more on each count for the offences punishable under sections 420, 468 and 471 of the I.P.C. All the sentences to run concurrently. 31. The bail bond of the appellant is hereby cancelled and he is directed to forthwith surrender before the Trial Court to serve out his sentence. 32. The appeal is allowed to the aforesaid extent. Let a copy of the judgment along with the Lower Court Record be sent down to the Trial court at once. Urgent photostat certified copy of this order, if applied for, be supplied to the parties as early as possible.