CR.A/208/1993 1/41 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 208 of 1993 For Approval and Signature: HONOURABLE MR.JUSTICE MD SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= HASMUKHLAL AMRUTLAL SOMANI - Appellant(s) Versus THE STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR SV RAJU for Appellant(s) : 1, MR LR PUJARI PUBLIC PROSECUTOR for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE MD SHAH Date : 28/09/2007 ORAL JUDGMENT 1.0 By way of this appeal, the appellant has CR.A/208/1993 2/41 JUDGMENT challenged the judgment and order of the learned Special Judge, Ahmedabad dated 30th December, 1992 passed in Special Case No.41 of 1990 whereby the trial Court convicted the appellant, herein, for the offence punishable under Section 7 of the Prevention of Corruption Act and sentenced to undergo Simple Imprisonment for a period of one year and to pay fine of Rs.500/- and in case of default to undergo further simple imprisonment for a period of two months. The appellant was also convicted for the offence punishable under Section 13(1)(d)(i) and (ii) and Section 13(2)of the Prevention of Corruption Act and sentenced to undergo Simple Imprisonment for a period of one year and to pay fine of Rs.500/- and in case of default to undergo further imprisonment for a period of two months. The aforesaid sentences were ordered to run concurrently. 2.0 The brief facts giving rise to the present appeal are that one Rameshkumar Amrutlal Modi-original complainant-P.W.-2, herein, at the relevant point of time, used to sell newspapers CR.A/208/1993 3/41 JUDGMENT and magazines at Bus Stand No.1 i.e. Central Bust Stand at Gitamandir, Ahmedabad. It was the case of the prosecution before the trial Court that the original accused-the appellant, herein, daily used to collect Rs.2/- from P.W.-2 for permitting him to sell newspapers and magazines in the premises of the bus stand since the vendors not having license were not permitted to sell newspapers and magazines in the premises of the bus stand and since P.W.-2 was not having any such license, he had to pay Rs.2/- to the appellant, daily. The other vendors, not having license to sell newspapers and magazines at the Gitamandir bust stand, also had to pay certain fixed amount to the appellant. Being aggrieved with the same, P.W.-2 decided to lodge a complaint with the Anti Corruption Bureau, Ahmedabad. 2.1 Accordingly, on 13.03.1990, P.W.-2 approached Anti Corruption Bureau, Ahmedabad and lodged a complaint under the Prevention of Corruption Act against the appellant. After the CR.A/208/1993 4/41 JUDGMENT recording of the complaint of P.W.-1 on 13.03.1990, a trap was arranged for 14.03.1990. 2.2 On 14.03.1990, Mr. Jaswantrai Vyas- Investigating Officer-P.W.-3, herein, summoned panchas. On arrival of panchas, P.W.-2 and the panchas were introduced to one another. In pursuance of that P.W.-2 narrated the facts of the complaint in brief and the complaint given by P.W.-2 was read over to the panchas and then panchas signed it. P.W.-2, thereafter, produced two currency notes of Rs.2/- each. Then, the numbers of the said currency notes of Rs.2/- were noted down. The said currency notes were, thereafter, given to one Mr. Bhalchandra Patil, Police Constable for experiment of ultra violet light and anthracene powder. 2.3 Mr. Patil, showed the said currency notes to P.W.-2 and the panchas in normal light as well as in ultra violet light but nothing significant appeared. Mr. Patil, thereafter, smeared the currency notes of Rs.2/- with anthracene powder CR.A/208/1993 5/41 JUDGMENT and then lightly removed the excessive anthracene powder from it with the help of a cloth and exposed it to normal light as well as to the ultra violet light. When the said currency notes were exposed to the normal light nothing significant appeared, but, when the same were exposed to ultra violet light, dots of white-blue colour appeared on the said currency notes of Rs.2/-. Then, the similar experiment was carried out on the hands of Mr. Patil. When the hands of Mr. Patil were exposed to the normal light nothing significant appeared, but when the same were exposed to the ultraviolet light, dots of white-blue colour appeared on the hands and finger tips of Mr. Patil. Thereupon, Mr. Patil, put the said currency notes of Rs.2/-each, treated with anthracene powder in the pocket of P.W.-2 and P.W.-2 was instructed not to touch the said currency notes until the same were demanded by the appellant. The said paper and cloth were, thereafter, burnt in the presence of the panchas and the bottle of anthracene was kept back in the cupboard. Thereafter, P.W.-2 and the panchas were CR.A/208/1993 6/41 JUDGMENT given necessary instructions by P.W.-3. P.W.-1 i.e. original Panch No.1 was instructed by P.W.-3 to accompany P.W.-2 and to witness the transaction that may take place between P.W.-2 and the appellant. Thereupon, a preliminary 'Panchnama' was carried out to the aforesaid effect. Then, raiding party and P.W.-2 and panchas, left for Central Bus Stand at Gitamandir, Ahmedabad. 2.4 On reaching Central Bus Stand, Gitamandir, P.W.-2 took out newspapers from a bag and kept the same in his hand and started wandering about Platform No.1 to sell the same. After about five minutes, the appellant came and asked P.W.-2 as to where he had gone yesterday and told that he (the appellant) will not allow P.W.-2 to do business within the premises of the Gitamandir bus stand and then told P.W.-2 to come with him(the appellant)to the Police 'Chowki' situated in the premises of the Central Bus Stand, in the presence of P.W.-1. Then, the appellant took P.W.-2 to the 'Waiting Room' of CR.A/208/1993 7/41 JUDGMENT the luxury coach and told P.W.-2 to leave the newspapers and magazines there. Thereupon, the appellant took P.W.-2 to the police chowki and there he(the appellant)left P.W.-2 standing alone outside police chowki and returned towards the bus stand. Then, P.W.-1 reached there and P.W.-2 and P.W.-1 returned towards the platform No.1 and there they again met the appellant. At that time, the appellant told P.W.-2 that he had no trust in P.W.-2 and that P.W.-2 has to pay the monthly amount in advance. In reply to that when P.W.-2 told the appellant that he had no money and that he hadn't done any business since morning, the appellant got angry and abused P.W.-2 using filthy language and gave signal to him to put whatever he had in his trouser pocket(the appellant's). Hence, P.W.-2 took out two currency notes of Rs.2/- each, treated with anthracene powder, from the left-hand side pocket of his shirt, and put it in the pocket of the trouser of the appellant. Then, the appellant took out the said currency notes from the pocket of his trouser and put it on the hand-driven cart CR.A/208/1993 8/41 JUDGMENT carrying water, counted it and then put it in the left hand side pocket of his shirt. In pursuance of that, as per the arrangement, P.W.-2 gave signal to the raiding party and the members of the raiding party immediately rushed to the spot. 2.5 On reaching the spot, the Investigating Officer-P.W.-3, gave his introduction to the appellant. Then, P.W.-1 narrated the transaction which had taken place between P.W.-2 and the appellant and the same was recorded in 'Panchnama'. Thereafter, on instructions of P.W.- 3, Panch No. 2 took out three currency notes of Rs.2/- each, from the left hand side pocket of the shirt of the appellant. The numbers of the three currency notes of Rs.2/- recovered from the pocket of the trouser of the appellant were, then, tallied with the numbers already noted down in the preliminary Panchnama and out of three currency notes, numbers of two currency notes were found to be matching with the numbers noted in the preliminary Panchnama. CR.A/208/1993 9/41 JUDGMENT 2.6 Thereupon, the hands of the raiding party were exposed to the normal light as well as to the ultra violet light, but, nothing significant appeared. Thereafter, the hands of P.W.-2 and the appellant were exposed to the normal light as well as to the ultra violet light. When the hands of P.W.-2 and the appellant were exposed to the normal light nothing significant appeared, but, when their hands were exposed to the ultra violet light, dots of white-blue colour appeared on their hands. When the similar experiment was carried out on the currency notes of Rs.2/- recovered from the pocket of the shirt of the appellant and the numbers of which were found to be matching with the numbers mentioned in the preliminary Panchnama as well as on the shirt put on by P.W.-2 and on shirt and trouser put on by the appellant, the same result was found i.e., the presence of anthracene powder was found on them. Thereafter, the signatures of the panchas were obtained on the part of the trouser and shirt of the appellant where presence of anthracene powder was found. Then, the 'Muddamal' CR.A/208/1993 10/41 JUDGMENT recovered, including the trouser and shirt put on by the appellant, were attached and a Panchnama to the aforesaid effect was prepared. 2.7 In pursuance of that offence was registered against the appellant under the Prevention of Corruption Act. After the completion of investigation and after obtaining sanction, charge-sheet was submitted against the appellant before the trial Court. The trial Court framed, read over and explained charges under Section 7 and Section 13(1)(d)(i), (ii) and (iii) and Section 13(2)of the Prevention of Corruption Act to the appellant. However, the appellant did not plead guilty to the charges and claimed to be tried. Then the trial Court heard all the parties and convicted and sentenced the appellant as stated in Para-1 of the judgment. However, the trial Court acquitted the appellant in respect of charges for offence punishable under Section 13(1)(d)(iii). The aforesaid sentences were ordered to run concurrently. Hence, the present appeal. CR.A/208/1993 11/41 JUDGMENT 3.0 Learned Advocate for the appellant has submitted that the trial Court has committed an error in holding that the appellant was a public servant, during the period from 11.03.1990 to 14.03.1990, within the meaning of Section 2(c) (iii) of the Prevention of Corruption Act, 1988. 3.1 Learned Advocate has submitted that the trial Court ought to have held that the sanction order was not valid since the sanctioning Authority had not applied its mind while passing the sanctioning order. 3.2 Learned Advocate has further submitted that the trial Court ought not to have held that the prosecution has successfully proved that the appellant on 14.03.1990 had accepted an amount of Rs.4/- from P.W.-2, abusing his position as a public servant, as illegal gratification, since the witnesses did not support the case of the prosecution in regard to the verbal demand of bribe by the appellant. In support of his case, CR.A/208/1993 12/41 JUDGMENT learned Advocate has placed reliance on a decision of the Hon'ble Apex Court in the case of “Subash Parbat Sonvane Vs. State of Gujarat” reported in 2002 Cri.L.G. 2787 wherein it has been held that mere acceptance of money is not sufficient for convicting accused under Section 13(1)(d)(i) and that there must be evidence on record that accused 'obtained' any amount by corrupt or illegal means, and hence, in a case where complainant as well as panch witnesses do not support the case of the prosecution in regard to the aspect of verbal 'demand' of bribe, and 'acceptance' of the same, the accused deserves to be acquitted. 3.3 Learned Advocate has submitted that the trial Court ought to have held that the prosecution has failed to establish that the appellant had demanded and accepted the amount in question as a motive or reward for doing some favour to P.W.-2, in the exercise of his official duty. CR.A/208/1993 13/41 JUDGMENT 3.4 Learned Advocate has submitted that the trial Court has failed to appreciate the fact that the presumption applicable under Section 20 of the Act is not available for the offence punishable under Section 13(1)(d)(i) and (ii) of the P.C. Act. In support of the same, learned Advocate has placed reliance on a decision of this Court in the case of “Manilal Nagardas Parmar Vs. State of Gujarat” reported in 1998(1)GLH 44 wherein it has been held that as provided in Section 20(3) of the Prevention of Corruption Act, 1947, the Court may decline to draw a presumption referred to in Section 20(2) (1), if the gratification or thing stated in those two sub-Sections, in the opinion of the Court is so trivial that no inference of corruption may fairly be drawn. 3.5 Learned Advocate has lastly submitted that taking into consideration the long time i.e. of about 17 years which has elapsed from the date of incident as well as the mental, physical and financial agony undergone by the appellant during CR.A/208/1993 14/41 JUDGMENT the aforesaid period, a lenient view should be taken in regard to the sentences of the appellant. In support of his case learned Advocate has placed reliance on the decision of the Hon'ble Apex Court in the case of “Tarsem Lal Vs. State of Haryana” reported in 1987 SC 806. In that case the appellant who was a 'Patwari', was convicted by the trial Court under Section 5(2) of the Corruption Act and was sentenced to undergo Rigorous Imprisonment for a period of two years and to pay fine of Rs.150/-. The appellant was also convicted under Section 161 of the Indian Penal Code and was ordered to undergo Rigorous Imprisonment for one year and to pay fine of Rs.100/-. The order of the trial Court was confirmed by the High Court of Punjab & Haryana. Being aggrieved with same, the appellant approached the Hon'ble Apex Court. The Hon'ble Apex Court taking into consideration the long period of about 14 years which had elapsed from the date of incident till the disposal of the appeal as well as the hardships faced by the appellant and his family members during the CR.A/208/1993 15/41 JUDGMENT pendency of the said appeal, reduced the sentences of imprisonment to the sentence already undergone by the appellant. 3.6 Learned Advocate has also placed reliance on several other decisions in which the similar view has been taken by the Hon'ble Apex Court as well as by this Court. They are as under, (i) “T.M. Joseph Vs. State of Kerala” reported in AIR 1992 SC 1922, (ii)“Kewal Saroop Gandotra Vs. State of J & K” reported in 1994 SCC(Cri.)163, (iii)”Subash Parbat Sonvane Vs. State of Gujarat” reported in 2002 Cr.L.J.2787, (iv)“Ramjibhai Rupabhai Chauhan Vs. State of Gujarat” reported in 2001(0)GLHEL 210322, 3.7 The learned Advocate has also placed reliance on an unreported decision of this Court (Coram : J.R. Vora,J.)in the matter between “Harjivanbhai Popatlal Patel Vs. State of Gujarat” in Criminal Appeal No.366 of 1989. CR.A/208/1993 16/41 JUDGMENT 4.0 On the contrary, Mr. Pujari, learned APP has supported the case of the prosecution and has stated that after taking into consideration all the facts and circumstances of the case and the documents placed on record i.e. Complaint (Exhibit-13), Panchnama(Exhibit-11) and Seizure Memo (Exhibit-10) etc., the trial Court has passed the order of conviction, and hence, no interference is called for by this Court. 5.0 It was the case of the prosecution before the trial Court that the appellant, herein, on 14.03.1990 had demanded and accepted an amount of Rs.4/- from P.W.-2, for permitting P.W.-2 to sell newspapers and magazines, without license, in the premises of the Central Bus Stand at Gitamandir. The prosecution, in support of its case, has examined three witnesses and has placed reliance on the Complaint (Exhibit-13), Panchnama(Exhibit- 11) and Seizure Memo (Exhibit-10). In above view of the matter, here, it would be relevant to refer to deposition of P.W.-1 i.e., original CR.A/208/1993 17/41 JUDGMENT Panch No.-1. 5.1 P.W.-1 in his deposition has deposed that on 13.03.1990, his Superior Officer Mr. Shukla, informed him that the officials of A.C.B., Ahmedabad had come as they require services of panch and instructed him (P.W.-1) to cooperate with the officials of A.C.B.. Mr. Shukla, also informed P.W.-1 that the officials of A.C.B., shall come to his (P.W.-1's) and Panch No.2's residence in the morning on 14.03.1990 to pick them up for conducting raid. Accordingly on 14.03.1990, P.W.-1 and Panch No.2 were picked up from their respective homes and were taken to the Office of the A.C.B., Ahmedabad by the officials of the A.C.B.. 5.2 P.W.-1 has further stated that on reaching Office of the A.C.B., Ahmedabad, Investigating Officer-P.W.-3, herein, introduced him and Panch No.2 to P.W.-2. In pursuance of that P.W.-2 narrated the facts of the complaint in brief and the complaint given by P.W.-2 was CR.A/208/1993 18/41 JUDGMENT read over to P.W.-1 and Panch No.2 and then they signed it. P.W.-2, thereafter, produced two currency notes of Rs.2/- each and its numbers were noted down in preliminary Panchnama. The said currency notes were, then, given to one Mr. Bhalchandra Patil, Police Constable for experiment of ultra violet light and anthracene powder. 5.3 P.W.-1 has stated that on 14.03.1990 after completing the necessary statutory procedures i.e. experiment of the normal light and ultra violet light, drawing of preliminary panchnama etc., raiding party, P.W.-2 and panchas, left for Central Bus Stand at Gitamandir, Ahmedabad. On reaching Gitamandir, as per the arrangement, everybody took their position. P.W.-1 along with P.W.-2 went to Platform No.-1. Then, P.W.-2 took out newspapers from a bag and kept the same in his hand and started wandering about Platform No.1 to sell the same. After about five minutes, the appellant came and asked P.W.-2 as to where had he gone CR.A/208/1993 19/41 JUDGMENT yesterday and told that he (the appellant) will not allow P.W.-2 to do business in the premises of the bus stand at Gitamandir. The appellant, thereupon, told P.W.-2 to come with him to the police chowki situated in the premises of the Central Bus Stand at Gitamandir. P.W.-1 has stated that since he was present there, at that time, he followed P.W.-2 and the appellant. The appellant firstly took P.W.-2 to the 'Waiting Room' of the luxury coach and told P.W.-2 to leave the newspapers and magazines there. Thereafter, the appellant took P.W.-2 to the police chowki situated in the premises of the bus stand and there he(the appellant)left P.W.-2 standing alone outside police chowki and returned towards the bus stand. Then, after some time, P.W.-2 and P.W.-1 returned towards the platform No.1 and there they again met the appellant. At that time, the appellant told P.W.-2 that he had no trust in him (P.W.-2) and that he has to pay the monthly amount in advance and in reply to that when P.W.-2 told the appellant that he(P.W.- 2) neither had any money nor he had done any CR.A/208/1993 20/41 JUDGMENT business since morning, the appellant got angry and abused P.W.-2 using filthy language. The appellant, then, gave signal to P.W.-2 to put whatever he(P.W.-2) had in the trouser pocket of the appellant. Hence, P.W.-2 took out two currency notes of Rs.2/- each, treated with anthracene powder, from the left-hand side pocket of his shirt and put it in the trouser pocket of the appellant. The appellant, thereafter, took out the said currency notes from the pocket of his trouser and put it on the hand-driven cart carrying water, counted it and then put it back in the left hand side pocket of his shirt. In pursuance of that, as per the arrangement, P.W.-2 gave signal to the raiding party and the members of the raiding party immediately rushed to the spot. 5.4 P.W.-1 has stated that on reaching the spot, the Investigating Officer-P.W.-3 gave his introduction to the appellant and, then, he(P.W.- 1) narrated the transaction which had taken place between P.W.-2 and the appellant and the same was CR.A/208/1993 21/41 JUDGMENT recorded in 'Panchnama'. In pursuance of that, on instructions of P.W.-3, Panch No. 2 took out three currency notes of Rs.2/- each, from the left hand side pocket of the shirt of the appellant. The numbers of the said three currency notes of Rs.2/- recovered from the appellant were, then, tallied with the numbers already noted down in the preliminary Panchnama and out of three currency notes of Rs.2/-, numbers of two currency notes were found to be matching. Thereafter, the hands of the raiding party were exposed to the normal light as well as to the ultra violet light, but, nothing significant appeared. Thereupon, the hands of P.W.-2 and the appellant were exposed to the normal light as well as to the ultra violet light. When the hands of P.W.-2 and the appellant were exposed to the normal light nothing significant appeared, but, when their hands were exposed to the ultra violet light, dots of white-blue colour appeared on their hands. When the similar experiment was carried out on the currency notes of Rs.2/- recovered from the pocket of the shirt of the CR.A/208/1993 22/41 JUDGMENT appellant as well as on the shirt put on by P.W.- 2 and on shirt and trouser put on by the appellant, the same result was found i.e., the presence of anthracene powder was found on them. Thereafter, the signatures of the panchas were obtained on the part of the trouser and shirt of the appellant where presence of anthracene powder was found. Then, the 'Muddamal' recovered, including the trouser and shirt put on by the appellant, were attached and a Panchnama to the aforesaid effect was prepared. 5.5 At the time of his cross-examination, P.W.-1 stuck to the version given by him in his deposition and the defence failed to bring out anything which could help the appellant. 5.6 So far as the evidence of P.W.-2-original Complainant is concerned, he has fully supported the complaint filed by him which is produced at Exhibit-13. P.W.-2, in his complaint, has stated that the appellant daily used to collect an amount of Rs.2/- from him for permitting him to CR.A/208/1993 23/41 JUDGMENT sell the newspapers and magazines in the premises of the Central Bus Stand at Gitamandir and being aggrieved with the same he(P.W.-2)lodged a complaint with A.C.B., Ahmedabad. From the evidence of P.W.-2 it is also borne out that on 14.03.1990 when he reached office of A.C.B., Ahmedabad the panchas were called. On arrival of the panchas, they were introduced to P.W.-2. In pursuance of that required statutory procedures for carrying out a raid i.e. experiment of ultraviolet light as well as of normal light and anthracene powder, drawing of preliminary Panchnama etc., were completed by the raiding party, before setting off for raid. P.W.-2 has also supported the case of the prosecution, except, the fact of oral 'demand' and 'acceptance' of bribe money by the appellant. P.W.-2 in his deposition has stated that on the day of alleged incident, he handed over two currency notes of Rs.2/- each, to one porter (Hamal) and the said porter passed on the amount of bribe to the appellant and that he did not admit that he put the amount of bribe in the CR.A/208/1993 24/41 JUDGMENT pocket of the trouser of the appellant as is stated by P.W.-1. On account of that, P.W.-2 was declared hostile by the trial Court. However, on the aforesaid ground only, the entire evidence of P.W.-2 can't be overlooked. On the contrary, an endevour should be made to take whatever little assistance evidence of P.W.-2 can provide to the case of the prosecution, as per the view taken by the Hon'ble Apex Court in a number of cases that in a case where a witness is declared hostile by the Court than in that case instead of discarding the entire evidence of such witness, whatever assistance