CRIMINAL APPEAL No.274 OF 1998 Against the judgment and order dated 24th July, 1998, passed by Sri S.K. Sharma, Special Judge (C.B.I.), North Bihar at Patna in Special Case No. 121 of 1985 arising out of SPE, C.B.I., Patna RC No. 38 of 1985 RAMAYAN SAH, son of Parma Sah, resident of Village- Bhasurari, Post Office- Rajpur Madan, Police Station- Sikarpur, District- West Champaran -------------------------- Appellant Versus STATE OF BIHAR(THROUGH C.B.I.)-------------------------- Respondent For the Appellant :- Mr. S.N.P. Sinha, Senior Advocate Ms. Rina Sinha, Advocate For the C.B.I. :- Mr. Bipin Kumar Sinha, Advocate P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN S.A. Khan, J. The sole appellant Ramayan Sah, the then Health Inspector, North Eastern Railway, posted at Sonepur has challenged the judgment dated 24th July, 1998 by which he has been convicted under Section 161 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for two years and further convicted under Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act, 1947 to undergo imprisonment for two years and also to pay a fine of Rs. 1000/- in default of which to undergo imprisonment for three months. 2 2. Nagendra P.W. 7 filed a complaint on 16.12.1985 alleging therein that the appellant Ramayan Sah had demanded Rs. 40/- to be paid to him on a monthly basis for allowing the said Nagendra who was a temporary ‘Safaiwala’ to continue in service. It is further stated that the said payment was to be made on the day on which P.W. 7 was to receive the salary i.e. on 17.12.1985. On the basis of this complaint apparently an enquiry was made and after the enquiry the C.B.I. Department decided to trap the appellant at the time he was taking the said bribe. It may be stated here that P.W. 7 was not a permanent employee and he along with several others were working as substitute ‘Safaiwalas’ in lieu of absence of permanent staff. 3. The prosecution in order to establish their case has examined 12 witnesses and the defence likewise has examined 10 witnesses. The defence of the appellant is that he has been wrongly framed in this case at the behest of one L.M. Chatterjee. It has been said that L.M. Chatterjee was senior to him at the time when they were both appointed in the 3 railway services. Subsequently the appellant by virtue of belonging to the scheduled caste gained seniority and was promoted earlier to L.M. Chatterjee and, therefore, he has engineered the entire case. The defence has also set up a plea that on several occasions, the Class IV employees were short of cash and often took loan from the officers. It is said that the wife of P.W. 7 was ill and he had taken a loan from the appellant which was to be repaid by him on the day he was to receive salary and taking advantage of this fact P.W. 7 had filed a complaint case with the encouragement of the said L.M. Chatterjee. 4. P.Ws. 1 and 2 are formal witnesses and they have proved different exhibits in this case. The important witnesses are P.Ws. 3 and 5 who are the independent and seizure list witnesses in this case. Both P.Ws. 3 and 5 were working in the Food Corporation of India and were utilized for the purposes of serving as witnesses at the time when the trap was set up. P.W. 3 Ram Babu and P.W. 5 Noor Mohammad have categorically stated that they were picked up from the F.C.I. Office and thereafter taken 4 in a ‘Jeep’ to Sonepur. They have given in detail the procedure adopted by the prosecution to set up a trap. They have stated that they had a practical demonstration of the entire procedure adopted. A piece of paper was treated with ‘Phenolphthalein’ powder. The solution of ‘Sodium Carbonate’ with water was prepared. P.W. 5 Noor Mohammad was asked to touch the treated paper with his finger and his hand was dipped in the ‘Sodium Carbonate’ solution. The milky solution turned into a pink colored solution which were preserved in a bottle and it was sealed and signed by the witnesses and marked as material Ext. 1. Treatd paper was also sealed and was signed by witnesses which was material Ext. 2. P.W. 7 was handed over Rs. 40/- which was to be paid to the appellant this was also treated by ‘Phenolphthalein’ powder by P.W. 11 and was handed over to P.W. 7 to be used at the time of trap. The procedure for making payment to the appellant was also explained by the C.B.I. Officers. P.W. 7 was told that he should give the money on demand being made by the appellant and after he had made the payment he was to 5 wipe his face with a handkerchief which would indicate that the demand had been made. After reaching Sonepur, the members of the C.B.I. officials posted themselves in around the office of the appellant. At that time i.e. around 3:50 p.m., Yogendra Singh, P.W. 10, Railway Cashier was dispersing the salary of the ‘Safaiwala’s’ in the office. P.W. 10 assisted by the appellant was identifying the ‘Safariwalas’. It is said that P.W. 7 handed over the money to the appellant and thereafter the C.B.I. officials entered the office and searched the appellant and found that he had accepted the bribe of Rs. 40/-. However, after the recovery, it is said that the C.B.I. officers caught hold of his hands and because of the crowd that was outside the office where the salaries were being dispersed, the appellant was taken to the G.R.P. police station for the rest of the procedure. There are two versions with respect to this part of the prosecution case. One stated by P.W. 3 in his cross examination and the other by P.W. 5. P.W. 3 has stated in his cross examination that about 22 to 25 persons had gathered in around 6 the office although none of them were obstructing the formalities that were taking place at the time when the raid was conducted and seizure made. P.W. 3 has specifically stated that the appellant was searched and money recovered. 5. From the evidence of P.Ws. 3 and 5 it is, therefore, clear that the appellant was taken to the G.R.P. police station where his hands were dipped in ‘Sodium Carbonate’ solution which was seized and marked as material exhibit. 6. P.W. 4 Rajendra Prasad Rai working with the C.B.I. has specifically stated that when the raid was made, railway employees gathered outside the office and as such the officers could only search the pocket of the appellant and recover the bribe amount of Rs. 40/-. This witness has stated that the G.R.P. police station is outside the Railway Station at the distance of about 200-250 yards. The evidence of P.W. 4 is very important because he has stated that the appellant was not searched in the office rather he was searched in the G.R.P. police station. The statement of P.W. 4 7 creates doubt and suspicion with respect to the procedure adopted by the C.B.I. officials in conducting the raid for the purpose of trapping the appellant. The explanation given is that 20 to 25 persons had gathered at the place where the alleged bribe was demanded and paid, does not inspire much confidence in the Court in view of the fact that it is admitted that on 17.12.1985, the ‘Safaiwalas’ were lining up for the purpose of being paid their salary. Therefore, the C.B.I. officials knew from the very beginning that the place where the seizure was to be made was crowded and that in itself did not give them an excuse to remove the appellant without completing the procedure of search etc. to the G.R.P. police station. Thus the presence of crowd of persons about 20 or 25 ought not to have been impediment for the C.B.I. officers to search and prepare the seizure list at place where the money was recovered. 7. This aspect of the case becomes important in view of the evidence of P.W. 10. P.W. 10 was dispersing the salary of the temporary ‘Safaiwalas’. The appellant was with 8 him and was identifying the persons. 200 persons were to be paid on that day. P.W. 10 was calling each of them one by one for the purpose of making payment of their salary. P.W. 7 was at serial no. 105 and he also came to receive his salary. This witness has also stated that L.N. Chatterjee has become junior to the appellant although he was senior at the time of appointment. P.W. 10 further states that he did not hear the appellant asking for bribe nor did he see P.W. 7 giving him any money. He further states that no one searched or prepared documents in his presence. This witness says that P.W. 7 came in the room to receive his salary then he went outside and then came back again. The prosecution has tried to explain this discrepancy by stating that the money was paid outside the office to the appellant after which they both came inside. If the evidence of this witness is to be believed then the Court would have to discard the evidence of P.Ws. 3 and 5 and the other official witnesses of the C.B.I. who has specifically stated that the payment was made inside and after receiving the signal from P.W. 9 7 the C.B.I. officials entered and search the appellant’s person for the money. 8. P.Ws. 11, 12 and 13 had supported the prosecution case inasmuch as they have stated that the bribe was paid inside the office and they all entered the office of P.W. 7 after receiving pre-fixed signal by him. 9. After going through the evidence the facts which emerge are that a trap was made and according to the independent witnesses the search was made in the office of P.W. 7 and recovery was also made in the office of P.W. 7 and thereafter as they were about 20 to 25 persons outside the office, the C.B.I. officials felt uncomfortable in completing the procedure at the spot where the recovery was made, so they caught hold of the hands of the appellant and took him to the G.R.P. police station to complete the rest of the formalities i.e. to prepare the seizure list etc. The other version as stated by P.W. 4 is that the appellant was taken to the G.R.P. police station and the search and seizure and other procedures were made at the G.R.P. police station. In a case of this kind which involves 10 misconduct by Government servants who demand and accept bribe, it is the duty of the Court to find out whether such a person is guilty of taking bribe. Thus there are elaborate procedure laid down by which a method has been evolved to ensure that the guilty are caught. However, if there is deviation in the method of conducting the raid/trap or there are more than one versions which describe the manner in which the entire procedure was conducted, it becomes difficult to accept that the trap set up was in accordance with the procedure as laid down under the law. In the present case, it is obvious that the procedure was followed but not done in a fair manner. The C.B.I. officials were well aware that there would be 100 persons present at the place of occurrence and as such they should have taken proper precautions to ensure that search, seizure and tests were done in a proper manner. The Court could have appreciated if the search, seizure and the test were done at the office of P.Ws. 7 and 10, as it would have created a greater impact on the railway officials and would also act as a deterrent to others. 11 10. In the facts discussed above, this Court finds that the prosecution has not been able to prove its case beyond reasonable doubt. The judgment and conviction is set aside. The appeal is allowed and the appellant is discharged from the liabilities of his bail bond. Patna High Court, May 14th , 2009 A.F.R./Sanjay (Sheema Ali Khan, J.)