Sri P. Balaiah [A-1], Hyderabad. Vs the State of a.P., Rep. by Spl.P.P., Hyderabad.

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BAIL SLIP : The Petitioner/ Accused was directed to be released on bail by the order of the High court dated 06.06.2010 in crl.A.M.P.No. 1448 ot 2010 in crt.A. No.941 of 2010.

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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WEDNESDAY, THE NINETEENTH DAY OF MARCH TWO THOUSAND AND TWENTY FIVE

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PRESENT

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THE HONOURABLE SRI JUSTICE K.SURENDER

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CRIMINAL APPEAL NO: 941 OF 2010

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Appeal under Section 374 (2) of Cr.P.C. against the Judgment dated 30.07.2010 made in C.C. No. 33 of 2004 on the file of the Court of the Principal Special Judge for SPE and ACB Cases, City Civil Court at Hyderabad.

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Between:

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Sri P. Balaiah [A-'l], S/o. Late P Paparah Asst. Director O/o. Drug Office, R.R. District, R/o. 2-49112. Plot No. 22. Nizampet Road, Kukatpally, Near Police Station, Hyderabad.

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...Petitioner/AppellanUAccused

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AND

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The State Of A P., Rep by Deputy Superintendent of Police, ACB, City Range- ll, Hyderabad, Spl. Public Prosecutor High Court, Hyderabad.

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... RespondenUCom^plai na nt

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lA NO: 1 OF 2024

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Petition under Section 528 of BNSS praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to recall the non-Bailable Warrant issued against the Petitioner/ Accused vide orderdated 13/1 112024 in Crrminal Appeal No. 941 of 2010.

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Counsel for the Appellant : Sri Ch. Venkat Raman

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Counsel for the Respondent : Sri M. Bala Mohan Reddy Special Public Prosecutor for ACB

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The Court delivered the following:

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HON'BLE SRI JUSTICE K.SURENDER

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CRIMINAL APPEAL No.941 OF 2O1O

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JUDGMENT:

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The appellant-A1 and alother person, 42, were prosecuted by

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the ACB on the allegation of demalding and accepting a bribe. After trial, the learned Principal Speciat Judge for trial of SPE and ACB Cases, City Civil Court, Hyderabad, acquitted A2 and convicted A1 for the offences under Section 7 and Sections 13(1)(d) r/w 13(21 of the Prevention of Cormption Act, 1988 and sentenced him to rigorous imprisonment for a period of one year under both counts vide judgment in C.C.No.33 of 2004, dated 30.07.2010. Aggrieved by the said conviction, A1 hled the present appeal

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Heard Sri Ch.Venkat Raman, learned Counsel for the appellant and Sri M.Bala Mohan Reddy, learned Special Public Prosecutor for ACB.

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Briefly, the case of the prosecution is that the defacto complainant/P.W. 1 was running a medical and general stores, namely "Sri Sai Medical and General Stores" at Mallapur, after obtaining drug licence from the ofhce of Assistant Drug

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Controller, Ranga^{Reddy District,Hyderabad.} His cousin brother, Srisailam,^{(not examined)also wanted} to establish a^medical and general stores at Parvathnagar, Borabanda. Since the said Srisailam^{was not aware of the procedure, P.W.} 1^accompanied Srisailam^{for submitting an application} in the ofhce^{of ttre Drug} Inspector.^{The application was hled} on^{05.O2.2OO2 and on} 25.O2.2OO2,^{the Drug Inspector inspectedthe shop premises.The} concerned^{file was then forwardedto the Superintendent,} .office^of the Assistant^{Drug Controller,Ranga ReddyDistrict, at Vengal Rao} Nagar, Hyderabad.^{On 01.03.2002,P.W. 1 and Srisailam met the} appellant,^{who was working as the Superintendentin the said} oflice.^{P.W. 1 enquiredabout the passing of file and the appellant} demanded^{Rs.2,OOO/- as bribe for processingthe hle. P.W. 1 and} Srisailam^{requestedthe appellant to issue the licenceand further} told him^{that they cannot pay the bribe amount. However,tJ:e} appellant^{insistedthat the amount has to be paid. On O7.O3.2OO2,} P.W. 1 contacted^{the appellant on phone and the appellalt a-llegedly} informed that^{the licence was ready} and^{asked P.W. 1 to pay the} bribe amount.^{On the very sarneday, P.W.} I^{went to the ACB office} and lodged^{a complaint Ex.Pl, with the DSP, ACB.}

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The trap was arranged on the next day, i.e., otr 08.03.2002. P.W. 1 went to the ACB oflice at 2.OO p.m, on Oa.O3.2OO2. There, P.W.2/independent mediator, and P.W.7 /Trap Laying Ofhcer were present, and the pre-trap proceedings were conclucled. The trap part5r then went to the office of the appellant at 4.10 p.m. P.Ws. 1 and 2 entered the office of the appellant ald found the appellant sitting in his seat. P.W. 1 enquired with the appellant about the drug licence and the appellant informed that the licence was ready and asked about the bribe amount. The appellant then took P.Ws.l and 2 to the canteen and while going down the stairs, P.W. 1 asked for a photo copy of the drug licence, for which the appellant informed that the drug licence was already given in the dispatch section. P.W. 1 asked for the details of the licence, then, the appellant went inside the office, and wrote the details of the licence on a paper slip (Ex.P2).

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The appellalt, P.Ws.l ar-d 2 went to the canteen where they ordered for Tea. The appellant then asked P.W. I to haldover the amount to A2. A2 received the amount and kept it in his left side pant pocket. P.W. 1 then went outside the canteen and signaled to

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the trap party. The^DSP entered^the canteen and tested the hands of the appellant with sodium ca,rbonate solution. The test was negative, and on being question by P.W.7/DSP, the appellalt informed that the amount was with A2. A2 was called and his hands were tested with sodium carbonate solution. The test on both hands of A.2 proved positive. A.2 then took the currency notes from his left side pant pocket and handed them over to the DSP/P.W.7.

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When P.W.7 questioned the appellant about the frles, the appellant informed that the Iile was in the dispatch section. Then, the DSP, along with the trap party members, went to the dispatch section, ald the file was se2ed from P.W.3. The attendance register was also seized. The post-trap proceedings were concluded in the office.

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P.W.7/DSP then handed over the investigation to Ramesh Naidu (not examined since he died). The investigation^{was taken} over from Ramesh^Naidu by P.W.8, Inspector of Police.^{A charge} sheet was filed by^P.W.8 against the appellant and also against^A2.

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The evidence of P.Ws.I and 2, and the recovery of the amount, formed basis for the learned Special Judge to convict the appellant. 9. karned counsel appearing for tfre appellant would submit that no work was pending with the appellant, which is admitted by the prosecution witnesses, P.Ws.3 and 4. Even according to P.W.7 /Trap Laying Officer, Iile was se2ed from the dispatch section. In the said circumstances, when there is no pending work, the alleged demand for bribe becomes doubtful.

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Learned Special Public Prosecutor appearing for the ACB would submit that Ex.P2 is the slip given by the appellant, providing details of the licence, and thereafter, the money was asked to be passed on to A2. Admittedly, the appellant was the person who had initially processed the hle, and the demand for bribe is probablized. Once the prosecution has proved the demand aspect, and the recovery was also at the instance of the appellant, the ingredients ol bribe i i.e., the demand and accept€rnce, are proved.

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According to P.W. 1, the application for the drug iicence was meart for his cousin, namely Srisailam. According to P.W. 1, Srisailam went to the office of the Drug Inspector for applying for the licence. However, said Srisailarn was not examined by the prosecution during the course of investigation. No reasons are given as to why the person giving the application for the drug licence was not examined. The evidence of the said Srisailam would have lent credibility to the prosecution case.

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The role of Srisailam, as stated by P.W. 1, was limited to going to the office and giving appiication in the office. The said Srisailam did not accompany P.W. 1 to lile a complaint before the ACB. The DSP/P.W.7 did not ask for the presence of Srisailam, nor did he enquire with Srisailam about the demand for bribe by the appellant. There is nothing on record for the Court to infer that the said Srisailam had asked P.W. 1 to pursue the processing of his licence in the office of the Drug Inspector. Even the bribe amount was arranged by P.W. 1.

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It is admitted by the prosecution that the h1e was forwarded to the Assistant Director through A1 on 05.03.2002, and on

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O7.O3.2OO2, the hle was received by the Superintendent (A1).

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P.W.3-Junior Assistant, deposed as follows:

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"On 28.2.2OO2 afier receiuing and scrutinizing the proof license fonn2o^{and 21 the} fair^{licenseof the utas got prepared bg the} computer section and utas fonaarded to the Asst. Director signature through supeintendent AO1 on 5.3.2002- On 7.3.2002 the file was receiued bg the superintendent AO1 uith the signafure on the fair copg of the liccnse. On the same day euening the license u.tere handed ouer to me tuith instructions to process an dispatch ttrc license to the ancemed parties. On 8.3.2002 I send the Jtle to Sr.Md.Shareef,Jr.Asst. along uith the other fiLes for di.spatch. On 8.3.2O02 afier 4.OO PM ttuo persons came and met AO1 and enquried about the Drug License pertoining to M/s.Si Sai Medical and Gen. stores paruath nagar on uthich AO1 enquired uith me about the said license and I informed to AOl that the license uLere alreadg sent for the dispatch. Afier some time the said ttuo persons uent out of the office room follouted bg AO1."

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" It is true A.O afier receipt of the file on O7.03.20O2 he handed oDer me, in the afier noon to di.spatch along uith seueral other licenses and files and I handed ouer Ex.P6 with the other files to Shoreef (P.W.4) for dispatch. He has to enter into the dispatch register and then dispatch. When once the ftles goes to the dispatch section, uLe haue no role to plag including A.O. I handed ouer the files and ltcenses along with Ex.P6 to P.W.4 on 08.03.2002 for di,spatch- None informed me not to di.spatch the licenses. P.W. I uisits our olfice once in a tuhile. Wh.en P.W.I came and inquired u.tith the A.O.1, A.O.1 inquired from me and informed that the license tuere alreadA sent for dispotch Licenses tuould be dispatched onlg through post and they will not be handed ouer to the parties. "

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P.W.4, who is the Junior Assistant in the same office, stated as follows:

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oBy the time I utas examined bg ACB officials on the date of trap I haue made readg for dispatch of the license of the Ex.P6 file^{and uhen onceth-e dbpatch process commencethere is} nothing to do with tlw license.'

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P.W.6-Joint Director, Drugs Control and Administration,

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deposed as follows:

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"The application of Sri.sailam was receiued on OB-O2-2002 bg P.W.3 and he had put up before me on 71-02 2O02 through A.O and I approued on the same date i.e., on 11-02-2002 to send the applicatton for Drug Inspector report and inspection and the Drug Inspector report uas receiued on 27-O2-2O02. On the same dag, P.W.3 had put up a note before me for issue of license and the file u)as not routed through A.O and on 27-022002, I approued for issuance of license. Euen in the absence of noting on the file of the Supdt./ A.O, I can directlg pass the orders for issuance of license. The fair copies of the license b prepared by the P.W.3 on 28-02-2002 and the same uas put up before me through A.O on 05-03-2002. On the same dag, I also approued for i.ssuance of license in other cases. "

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It is admitted by the prosecution witnesses that even prior to the date of trap, the entire^processing of the file was complete, and the license was prepared and ready for dispatch. The said license will not be handed over to the party, but it would be sent directly to the address given by the party.

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P.W. t had eariier obtained the license ald has^knowledge about the processing of the license. He mentioned in his complaint

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and also deposed before the Court that, on O7.O3.2OO2 itself, he knew about the file being processed and that the license was ready. Once the license was ready and dispatched to the concerned party, evcn according to the prosecution witnesses, one fails to understard why P.W. 1, having knowledge of the license being prepared, Iodged a complaint with the ACB. Admittedly, the license would have gone to the address of the said Srisailam. In his crossexamination, P.W. 1 admitted that P.W.3 was the concerned clerk, who processed the entire hle, and the appellant, as the Superintendent, is not competent to reject or stop the license. P.W. 1 deposed in his cross-examination, as follows:

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'The application has to be submitted to the Asst. Director for issuing of Drug license. The Asst. Director uill mark the application to concemed clerk at that time P.W.3 u.tas the ancerned clerk. Afier the note is put up on the fiIe the file uould be sent to the ancerned cirea drug inspector for inspection and report. The Drug Inspector afier inspection uould submit his report to Asst.Director and thereafier PW3 will process the file. And ultimatelg afi,er Asst. Director passes order the Drug license will be issued. And the license utill also be signed by the Asst. Director. And thereafier the same uill be dispatched to the concemed bg post. Md. Shareef was the dispatch clerk. P.W.3 is the concemed clerk, who process the entire file. AO1 as office superintendent is not competent to i.ssue reject or stop the license."

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P.W. 1, having knowledge about the appellant not being competent to either issue, reject, or stop the license, and further

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having knowledge that P.W.3 was the person, who would dispatch the iicense by post, had lodged a complaint with the ACB. In the back ground of the non-examination of Srisailam, who is the benefrciar5r, and P.W. 1, after coming to know that the frie was already processed and that the license would be dispatched from the dispatch section, lodged the complaint with the ACB, it is clear that P.W. t had deliberately lodged a complaint with the ACB to implicate the appellant in the bribery case.

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The claim of demand itself cannot be believed in the present circumstances, given P.W. 1's admission regarding the procedure followed for the issuance of a drug license. Non-examination ol Srisailam is fata-l to the prosecution case. In the said background, the evidence of P.W.2-independent mediator regarding the alleged demand for bribe by the appellant on the date of trap is of no consequence. In view of the same, beneht of doubt is extended to the appellant.

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In the result, the^judgment of tria,l Court in C.C.No.33 of 2OO4, dated 30.07.2O10 is set aside, and the appellant is acquitted. Since the appellalt is on bail, his bail bonds shall stand discharged.

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