IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Criminal Appeal No. 360 of 2002. Judgment reserved on : 28.10.2009. Date of Decision: 7.12.2009. State of Himachal Pradesh …Appellant. Versus Karam Singh Verma and another ..Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? Yes For the Appellant : Mr. R.P.Singh, Assistant Advocate General. For the respondents : Mr. D.R.Sood, Advocate for respondent No.1. Mr. Naresh Gupta, Advocate for respondent No.2. __________________________________________________________ Kuldip Singh, Judge The acquittal of respondents by learned Special Judge, Una on 11.3.2002 in Corruption case No. 1 of 1999 has been assailed in this appeal by the State. 2. The prosecution case, in brief, is that respondent No.1 was appointed as Food Inspector under the Food Adulteration Act, 1954 on 28.4.1984 vide gazette notification Ex. PM. In the year 1995, he was posted in the office of Chief Medical ______________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ?Yes 2 Officer, Una. He was deputed in Mairi fair from 9.3.1995 to 18.3.1995 as Food Inspector along with respondent No.2, peon vide order dated 28.2.1995 Ex.PD read with forwarding letter Ex.PJ. 3. It has been alleged that on 18.3.1995 PW-1 Bidhi Chand went to PW9 J.S.Pujiar at Mairi at about 12.30 P.M. and made statement Ex.PA under Section 154 Cr.P.C. PW-1 Bidhi Chand reported that on 17.3.1995 respondent No.1 along with respondent No.2 came to his shop at Mairi. They expressed their intention to take sample of salt, turmeric and spices. They told him that if he was to avoid the trial in the Court, then he was required to do favour to them. PW-1 Bidhi Chand told Food Inspector that he does not indulge in adulteration and that the Food Inspector was free to take sample. But respondent No.1 told that in the present time even good samples fail and, therefore, in order to avoid the court proceedings, PW-1 should pay a sum of Rs. 3,000/- to respondent No.1 and Rs. 500/- to respondent No.2 on 18.3.1995. Respondent No.1 further told that for this purpose they would come again. PW-1 told respondents that he was not having good business and, therefore, it was not possible for him to arrange the amount. But respondent No.1 again told the complainant that both respondents would come on next day and PW-1 should keep ready Rs. 3000/- for respondent No.1 and Rs.200/- for respondent No.2 otherwise the complainant would have to face consequences. PW-1 further reported that entire talk 3 took place in presence of PW-2 Kartar Singh. On statement Ex.PA, formal FIR Ex.PN was registered at Police Station, Amb. 4. PW-9 J.S.Pujiar, formed a raiding party by joining PW-3 Sanjay Sharma and others. J.S.Pujiar gave his personal search and took personal search of members of raiding party vide memo Ex.PB. The personal search of shadow witness PW-2 Kartar Singh was also taken by PW-9 J.S.Pujiar vide memo Ex.PP. J.S.Pujiar took currency notes of Rs. 3200/- Ex.P-11 to Ex.P-40 from the complainant PW-1 Bidhi Chand vide memo Ex.PC. The currency notes were signed by PW-9 J.S.Pujiar and PW-2 Kartar Singh witness as well as PW-3 Sanjay Sharma witness and Inspector Chain Singh. The currency notes were returned to PW-1 Bidhi Chand. He was instructed to hand over the amount to the accused Karam Singh Verma on demand, PW-2 Kartar Singh was made shadow witness. He was instructed to signal to the police party by moving his hand on his head. 5. The further case of the prosecution is that PW-1 Bidhi Chand thereafter went back to his shop at about 1.00 to 2.00 p.m. on 18.3.1995 with PW-2 Kartar Singh when both respondents were present there. Respondent No.1 asked PW-1 about money to which the complainant replied that he was not having good business and so money could not be arranged. On the insistence of respondent No.1, PW-1 Bidhi Chand gave him currency notes worth Rs. 3200/- which were checked by respondent No.1 and he then put the same in his bag. On this, 4 shadow witness Kartar Singh moved his hand over his head and entire raiding party reached the shop of the complainant. 6. The respondents were apprehended in the shop. PW-9 gave his personal search to respondent No.1 and thereafter personal search of respondent No.1 was conducted, some currency notes and coins were recovered from the right side pocket of his pant which were sealed in parcel Ex.P-4. On search of bag Ex.P-8 of respondent No.1, currency notes of Rs. 5200/- were recovered including the currency notes of Rs. 3200/- Ex.P-11 to P-40 referred in memo Ex.PC. PW-3 Sanjay Sharma compared the numbers of currency notes Ex.P-11 to Ex.P-40 which tallied with those mentioned in the memo Ex.PC. The currency notes Ex.P-11 to P-40 were sealed in envelope Ex.PI. The remaining currency notes of Rs. 2000/- were sealed in parcel Ex.P-3. The site plan Ex.PQ of the shop of PW-1 was prepared by investigating officer PW-9. 7. The raiding party searched the residence of respondent No.1 at Panga Mairi in presence of respondent No.1 and witnesses. In the search a brief-case Ex.P-10 was recovered and on opening brief-case, a receipt book, some papers, notices under the Preention of Food Adulteration Act, 1954 were found alongwith 37 currency notes of Rs.100/- each and 39 currency notes of Rs. 50/-, total amounting to Rs.5650/- which were put in parcel Ex.P-5 and were taken into possession vide memo Ex.PE. The bag Ex.P-9 was also found during search of the residence of 5 respondent No.1 and from that bag currency notes worth Rs. 3773/- were found which were sealed in parcel Ex.P-6 and were taken into possession vide memo Ex.PF. Sushma Devi, land-lady of respondent No.1 handed over Rs. 3800/- to the police party vide memo Ex.PH which were put in parcel Ex.P-7. According to prosecution, Rs.3800/-were given by respondent No.1 to Sushma Devi. The site plan Ex.PR place of recovery at the residence of respondent No.1 was prepared by PW-9. On search of respondent No.2, Rs. 1050/- were recovered from his pocket vide memo Ex.PG which were put in parcel Ex.P-2. 8. The sanction to prosecute the respondent No.1 was obtained from C.P.Sujaya, Financial Commissioner-cum- Secretary (Health). On completion of investigation, challan was presented against respondents under Sections 7 and 13 (2) of the Prevention of Corruption Act, 1988. The charge was framed against respondents under Sections 7 and 13 (2) of the Prevention of Corruption Act, 1988. The respondents pleaded not guilty and claimed trial. The respondent No.1 was charged for taking bribe of Rs. 3000/- and respondent No.2 was charged for taking bribe of Rs. 200/-. The prosecution has examined nine witnesses and produced some documentary evidence in support of the charge. The statements of respondents were recorded under Section 313 Cr.P.C, they denied the prosecution case. In defence, three witnesses were examined. The learned Special Judge, acquitted the respondents, hence this appeal. 6 9. I have heard Mr. R.P.Singh, learned Assistant Advocate General, Mr. D.R.Sood, Advocate learned counsel for respondent No.1 and Mr. Naresh Gupta, Advocate, learned counsel for respondent No.2 and I have also gone through the record. It has been submitted by the learned Assistant Advocate General that learned Special Judge has not properly appreciated the evidence on record. The evidence has been misconstrued and mis-interpreted. The prosecution has proved the case against the respondents beyond reasonable doubt. The acquittal of respondents is contrary to proved case on record. It has been submitted that after setting-aside the impugned judgment, respondents may be convicted and sentenced in accordance with law. The learned counsel for the respondents have supported the impugned judgment. They have submitted that the learned Special Judge has rightly appreciated the material on record. The prosecution has failed to prove the case against the respondents. The view taken by the learned Special Judge emerges from the evidence on record and, therefore, no fault can be found with the judgment of acquittal dated 11.3.2002. 10. PW-1 Bidhi Chand has stated that on 17.3.1995 at about 4.p.m. both accused came to his shop. Accused No.1 asked him for sample of salt, turmeric and spices. The accused No.1 told him that if he wanted to avoid trial in the court, he should do his ‘Sewa’. Accused No.1 told him that they would come next day again and he should arrange a sum of Rs. 3000/- for him and 7 another sum of Rs.500/- for his Peon. On 18.3.1995 both accused came again in his shop about noon time. On 17.3.1995 he told accused No.1 that he could not afford to give bribe. Accused No.1 told him that if he could not arrange Rs.3500/- in total, he should arrange minimum to Rs. 3000/- for him and Rs. 200/- for his Peon. PW-2 Kartar Singh was in his shop on 17.3.1995 when accused No.1 demanded money. 11. On 18.3.1995 he arranged Rs. 3200/- and got his statement Ex.PA recorded. Thereafter, police officials gave their personal search to one another and also took his personal search and the raiding party comprising Executive Magistrate Sanjay Sharma, Inspector Chain Singh and PW-2 Kartar Singh was constituted. The Additional S.P. took Rs. 3200/- in presence of witnesses, signed those currency notes and handed over the same to him. He was told that he should hand over the said currency notes to accused No.1 on demand and thereafter PW-2 Kartar Singh should signal to police party. 12. He reached his shop at about 1.00 to 2.00 p.m. and at that time both the accused were present in his shop. The accused No.1 asked him whether he had arranged money to which he said that he was not having good business and so money could not be arranged. On insistence of accused No.1 thrice, he gave currency notes of Rs. 3200/- to accused No.1, who put them in a bag. PW-2 Kartar Singh moved his hand over his head and raiding party reached his shop. 8 13. The accused No.1 wanted to run away but he was apprehended outside the shop by members of the raiding party. The personal search of the accused was conducted and some money was recovered from his pocket, some money was recovered from his bag which included Rs.3200/-. The residence of accused No.1 was also searched and some money and papers were also recovered during the search of the residence of accused No.1. In the personal search of accused No.2, a sum of Rs. 1050/- was recovered. In cross-examination, he has stated that samples from his shop were collected earlier also by the Food Inspector. PW-2 Kartar Singh is not his customer. On 17.3.1995 he had no plan to involve accused No.1 in the case, he thought about reporting the matter to police on 18.3.1995. He has stated that he was prosecution witness in three State cases. He was accused in a case under Section 307 IPC then said under Section 364 IPC. He went to the room of Addl. S.P. J.S.Pujiar. PW-3 Kartar Singh was present when he made the statement Ex.PA. Kartar Singh had come to his shop between 11.00 a.m. to 12.00 noon. 14. PW-2 Kartar Singh has stated that on 17.3.1995 he had gone to the shop of PW-1 for purchasing articles. Bidhi Chand was present at his spot. Food Inspector came there and he had talk with Bidhi Chand about money. Bidhi Chand and he told him that they are poor persons and cannot arrange money for payment as bribe. K.S.Verma left the shop. On 18.3.1995 he was called by the police. There were 5 – 6 officers in the raiding party including 9 private witnesses and he himself. Bidhi Chand gave about Rs. 3000/- to police. Thereafter some documents were prepared by the police, then Bidhi Chand took that money with him to his shop. He also came back with him. Food Inspector was present in the shop of Bidhi Chand. Bidhi Chand and Food Inspector had some talk in the shop. Bidhi Chand told him that he had passed on the money to Food Inspector. Thereafter, he signaled to the police by moving his hand on his head then police party arrived. Accused Food Inspector was apprehended. Accused K.S.Verma put the amount in his bag after receiving it from Bidhi Chand. In cross- examination, he has stated that he knew Bidhi Chand for the last 18 – 20 years. He purchased articles from his shop as and when required during fair. The distance between his shop and that of Bidhi Chand was about 1.00 k.m. in the Mela. He has stated that when K.S.Verma was apprehended by the police, he said he was being falsely implicated in the case and he had not received any money. He has admitted that on 17.3.1995 Food Inspector, K.S.Verma had come to his shop and had thrown away the sweets from his shop as they were rotten. 15. PW-3 Sanjay Sharma has stated that he was posted as Tehsildar, Bangana. He was Sector Officer-cum- Sector Magistrate in the Baba Bhadbag Singh fair at Mairi in the year 1995. On 18.3.1995 he joined the police raiding party on the request of the police. When shadow witness Kartar Singh gave them signal, then they went to the shop of Bidhi Chand. Food 10 Inspector was sitting in the shop of Bidhi Chand. On personal search, Rs. 3200/- were recovered from the bag of Food Inspector. The residence of Food Inspector was also searched. In cross- examination, he has stated that there were 3 – 4 customers in the shop. 16. PW-4 Surinder Singh has stated nothing relevant regarding the prosecution case and, therefore, his statement is not relevant. PW-5 Dr. Charanjit singh, is retired Joint Director Health Services. He has proved letter Ex.PJ, office order Ex. PK, letter Ex.PL and has stated that accused Sat Pal and K.S.Verma were deputed on duty at Mairi fair from 9.3.1995 to 18.3.1995. PW-6 Dr. J.R. Rattan, has proved gazette notification Ex.PM regarding the appointment of K.S. Verma as Food Inspector. PW-7 ASI Beant Singh has stated that after receipt of statement Ex.PA, he has recorded FIR Ex.PN. 17. PW-8 Pawan Singh has stated that in the year 1996 he was posted as Clerk in Health A Section in H.P.Secretariat, Mrs. C.P.Sujaya was Secretary Health. He was dealing assistant of the subject matter. The sanction order Ex.PO was passed by Mrs. C.P.Sujaya. In cross-examination, he has stated that State Government had first refused sanction to prosecute the accused persons. He had brought this fact to the notice of Mrs. C.P.Sujaya. He cannot say how the case was moved again for sanction. Mrs. C.P.Sujaya is alive. 11 18. PW-9 Jeet Singh Pujiar is the Investigating Officer and has stated that PW Bidhi Chand met him at about 12.30 p.m. on 18.3.1995. PW Kartar Singh was also with him. PW Bidhi Chand had produced the currency notes worth Rs. 3200/-. They left camp office to shop of Bidhi Chand at about 2.30 – 3.00 p.m. Bidhi Chand and Kartar Singh went away about 10 – 15 minutes before the raiding party. Accused K.S. Verma was sitting on the counter of said shop. The residence of K.S.Verma was also searched. 19. The accused in their statements under Section 313 Cr.P.C. denied the prosecution case. DW-1 Kamal Dev Sharma has stated that he was running Dhaba at Amb since the year 1992. He deals in eatables. The son of K.S.Verma used to supply him biscuits from Bani. On 18.3.1995 he gave Rs.2000/- to K.S.Verma for supply of biscuits which were not supplied to him. He lateron came to know that accused was arrested. He wrote letter on 19.3.1995 Ex.D-2 to the son of K.S.Verma for returning the amount. DW-2 Santokh Singh is a milk-vendor. He has stated that Darshan Singh, Milk-vendor was also from his village, who used to supply milk to some police officer at Una. Whenever Darshan Singh was unable to come to Una, he used to send milk to the police officer through him. About 5 – 6 years back, he took the supply of milk to the residence of the said police officer, who asked him to call the Food Inspector. He went to the Food Inspector, K.S.Verma and took him to the house of police officer. 12 DW-3 K.S.Verma accused has stated that on 2.3.1995 A.S.P. J.S.Pujiar called him through DW-2 Santokh Singh at his residence and asked him not to send the sample of Darshan Singh to the laboratory. He told him that he had sent the sample on 1.3.1995 itself and he could not do anything. He threatened him that he would settle the score with him on this count. The State Government had refused sanction to prosecute him as intimated vide letter Ex.D-4. In cross-examination, he has stated that he did not report against Addl. S.P. to anyone. 20. There is no legal evidence on record regarding demand of bribery and recovery of bribe amount from or at the instance of accused Sat Pal. PW-2 Kartar Singh has not stated that when he returned to the shop of Bidhi Chand on 18.3.1995 accused No.2 was present in the shop. PW-3 Sanjay Sharma has also not stated that Sat Pal was present in the shop when raiding party reached the spot. In these circumstances, the learned Special Judge has rightly acquitted Sat Pal accused. The question is regarding the involvement of K.S.Verma in the commission of offence. 21. PW-1 Bidhi Chand has stated that PW-2 Kartar Singh was in his shop on 17.3.1995 and accused No.1 demanded money. PW-2 Kartar Singh was present when his statement Ex.PA was recorded. PW-2 Kartar Singh has stated that he knew Bidhi Chand for the last 18 – 20 years and he purchased articles from the shop of Bidhi Chand as and when required during fair. PW-1 Bidhi 13 Chand has contradicted PW-2 Kartar Singh when he has stated in cross-examination that Kartar Singh is not his customer. This apart, it is not understandable how on all material occasions on 17.3.1995 and 18.3.1995 Kartar Singh was present in the shop of Bidhi Chand and accompanied him. In Ved Parkash Vs. State of H.P. 1998 (1) Sim. L.C. 392, it has been held that prosecution is under legal obligation to ensure that independent and respectable witnesses are joined in the trap, raid and recovery of bribe money. The witness Uttam Chand in that case was held interested when it was found that he accompanied PW-1 for obtaining copies of revenue record etc. Uttam Chand also took PW-1 to the office of Anti Corruption Unit. Uttam Chand was not secured by the police for conducting the raid. In the present case also, PW-2 Kartar Singh was allegedly present when K.S.Verma and Sat Pal allegedly visited shop of Bidhi Chand on 17.3.1995. PW-2 accompanied PW-1 Bidhi Chand for recording his statement before the police. He was not secured by the police for laying the trap. He was joined for trap and conducting raid as he was accompanying PW-1 Bidhi Chand. PW-2 has admitted that on 17.3.1995 Food Inspector K.S.Verma had come to his shop and had thrown his sweets as they were rotten. In these circumstances, PW-2 Kartar Singh cannot be said to be an independent witness. 22. There are material contradictions in the statements of PW-1 Bidhi Chand and PW-2 Kartar Singh. PW-1 has stated 14 that on 18.3.1995 at 1.00 to 2.00 p.m. both accused were present in the shop. PW-1 Bidhi Chand has stated that he had given Rs. 3200/- to police. Thereafter some documents were prepared by the police, then PW-1 took that money with him to his shop. He reached his shop at about 1.00 to 2.00 p.m. He gave Rs.3200/- to accused No.1 who put them in a bag. PW-2 Kartar Singh moved his hand over his head and raiding party reached his shop. 23. On the contrary, PW-2 Kartar Singh has said that on 18.3.1995 Bidhi Chand gave about Rs. 3000/- to police. Thereafter, some documents were prepared by the police then Bidhi Chand took that money with him to his shop. Food Inspector was present in the shop of Bidhi Chand. Bidhi Chand and Food Inspector had some talk in the shop. Bidhi chand told him that he had passed on the money to the Food Inspector. Thereafter, he signaled to the police by moving his hand on his head and then police party arrived. 24. PW-2 has not stated that Sat Pal was present in the shop of PW-1 at that time. He has also not stated that any demand was made by Food Inspector. It appears he has not seen Bidhi Chand giving any amount to Food Inspector. On the contrary, he has stated that Bidhi Chand told him that he had passed on the money to Food Inspector. In other words, PW-2 has not seen PW-1 giving any money to Food Inspector. PW-3 Sanjay Sharma, has also not stated that Sat Pal was present in the shop when 15 Rs.3200/- were paid by Bidhi Chand to K.S.Verma or when police party raided the shop. 25. PW-2 has also contradicted PW-1 when he said that about Rs.3000/- were paid by Bidhi Chand to police and then same amount was taken by him to his shop. The version of Bidhi Chand is that amount of Rs.3200/- was given to police and that amount was taken by him to his shop for giving to the accused. The search of the residence of respondent No.1 and recovery of some amount from the residence is not relevant, inasmuch as the case against respondent No.1 is specific that Bidhi Chand paid Rs.3200/- to respondent No.1 which were allegedly recovered from his bag. 26. PW-3 has not stated that when police party reached the shop of PW-1 at that time respondent No.2 Sat Pal was present there. It is the case of the prosecution that both respondents were in the shop when police party reached the shop of PW-1. PW-1 has admitted that earlier also once or twice samples were taken from his shop by Food Inspectors. He is a prosecution witness atleast in three cases. He was prosecuted under Section 364 IPC. In these circumstances, it is not safe to rely on the statement of PW-1 unless it is corroborated on material particulars by some other independent witness. It has already been held that PW-2 is not an independent witness. The prosecution has not examined any other independent witness. It has been held in State of H.P. Vs. Krishan Dev Latest HLJ 2009 (HP) 840, that in case of 16 bribery the recovery of money is not sufficient to convict when substantive evidence in the case is not reliable. The complainant cannot be placed on any better footing than that of accomplice and corroboration has to be insisted upon. In Anand Sarup Vs. State 1988 Cr.L.J. 756, it has been held that mere recovery of money is not sufficient to convict the accused when the substantive evidence in the case is not reliable. In this case the prosecution has not led unimpeachable evidence to support the statement of PW-1. 27. There is yet another point which requires consideration. Ex.PO dated 28.6.1997 is the sanction order to prosecute Karam Singh Verma, Food Inspector which is signed by Mrs. C.P.Sujaya, F.C.-cum-Secretary (Health) to the Government of Himachal Pradesh. PW-8 Pawan Singh has stated that State Government had first refused sanction to prosecute the accused and this fact was brought to the notice of Mrs. C.P.Sujaya. He could not say how the case was moved again for sanction. Ex.D-4 is the letter dated 9.10.1996 of Commissioner-cum-Secretary (Health) to the Superintendent of Police, Una. It has been stated in Ex.D-4 that after examining the case thoroughly, it has been decided by the Government that it is not a fit case for according prosecution sanction for the prosecution of K.S.Verma, Food Inspector. There is nothing on record to show that when Government refused to sanction the prosecution of