CRIMINAL APPEAL NO.161 OF 2006 *** (Against the judgment and order dated 17th February, 2006 passed by Mr. Jawahar Prasad Ratnesh, Special Judge, Central Bureau of Investigation, South Bihar, Patna in Special Case No. 66 of 1992/R. C. No. 28 (A) of 1992) **** Z.U.AHMAD @ ZAFIRUDDIN AHMAD, SON OF QAMRUDDIN AHMED, RESIDENT OF DENARA, DISTRICT ROHTAS. WORKING AS ASSISTANT COMMERCIAL SUPERINTENDENT, EASTERN RAILWAY, DANAPUR ……………………………………………………………………………. APPELLANT VERSUS THE UNION OF INDIA THROUGH CENTRAL BUREAU OF INVESTIGATION ****** P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN O R D E R Sheema Ali Khan, J. This appeal arises out of the judgment of conviction and order of sentence dated 17th February, 2006 passed by the Special Judge, Central Bureau of Investigation, South Bihar, Patna in Special Case No. 66 of 1992/R.C. Case No. 28 (A) of 1990. By the impugned judgment, the Court has found the appellant Z. U. Ahmad, a public servant, taking illegal gratification from one B. B. Verma, also a public servant and thereby committed an offence of criminal misconduct by taking money by corrupt or illegal means. The sole appellant has been convicted by judgment and order 2 dated 17.02.2006 to undergo rigorous imprisonment for two years for the offences punishable under Section 7 of the Prevention of Corruption Act (hereinafter referred to as “the Act”) along with a fine of Rs. 5,000/- In default of payment of fine, the appellant will also have to undergo rigorous imprisonment for six months. The appellant was further convicted to undergo rigorous imprisonment for three years along with a fine of Rs. 5,000/- for the offences under Section 13 (1) (d) of the Act. In default of payment of fine, the appellant will also have to undergo rigorous imprisonment for six months. Both the sentences are to run concurrently but the punishment given in form of fine under Section 7 and 13 (1) (d) of the Act will be paid by the appellant separately. The appellant was a Government servant employed as Assistant Commercial Superintendent, Eastern Railway, Danapur. Bipin Bihari Verma, the complainant, was also a Government servant working as Assistant Parcel Clerk, at Patna Junction. The facts in short are that PW 3 B. B. Verma filed a complaint (Exhibit 8) on 18.08.1992 in the Office of the Superintendent of Police, Central Bureau of Investigation, Patna alleging therein that he had received an order of transfer from Patna to Bihta Railway Station on 02.04.1992. Thereafter, he contacted the appellant and requested him to stay/cancel his transfer order. It is alleged that the appellant 3 assured him that he will get his work done with the help of the Senior Divisional Commercial Superintendent and the Additional Divisional Railway Manager. It was during the talks that Z. U. Ahmad disclosed that the Senior Divisional Commercial Superintendent was ready to cancel the transfer of the complainant on payment of Rs. 5,000/-. The complainant expressed his inability to pay Rs. 5,000/- at one go and as such the appellant agreed to receive Rs. 2,000/- as part payment, and the rest amount was to be paid after the issuance of the cancellation order of transfer. The defence version is complete denial of the prosecution case including the demand of illegal gratification and payment of the same. Specific defence is that the complainant B. B. Verma had a grudge against the appellant as well as some of the Central Bureau of Investigation Officers against whom he had been imposed penalty for traveling without a ticket in the train, particularly Md. Yusuf and some other Police Officers (Exhibit G & H). It has specifically been stated that B. B. Verma had a tainted service record as he was punished within one year of his joining the service and two consecutive increments were withheld and he was again punished on 11.06.1984 where one increment was withheld. These punishments were entered into his service book (Exhibit-A). It has also been specifically stated that the reason for which the bribe was 4 demanded is non est as the representation to stay the transfer order was already rejected by the concerned superiors i.e. the Additional Divisional Railway Manager and the Divisional Railway Manager. Therefore, there was no occasion for the complainant to approach the appellant to get his order of transfer cancelled and as such the very genesis of the case becomes doubtful as per the defence version. The issues that have been raised in this case are as follows:- (a) the genesis of the occurrence is not true; (b) no verification took place in the manner as stated by the prosecution; (c) the procedure of conducting a trap and preparing the exhibits has to be viewed with suspicion in the facts of this case; (d) all the exhibits with respect to search and hand wash are tainted; and (e) Witnesses are not reliable. This Court will begin with the procedure for verification. A complaint was filed on 18.08.1992 by PW 3 which is Exhibit 8. The verification report is Exhibit 3. The formal First Information Report was drawn on 18.08.1992 at 13 hours and the trap took place on Platform No. 1 at Patna Junction. PW 1 Ajay Kumar is the formal witness. PW 2 5 Nagendra Prasad, Inspector, Central Bureau of Investigation was to assist PW 11 R.C. Choudhary, PW 3 B.B. Verma is the complainant & PW 4 R. P. Choudhary, Assistant manager, SBI, Patna are the witnesses to the alleged seizure of the money as well as the witnesses with respect to the pre-trap report and the post trap reports. PW 5 Santosh Kumar is the Sub Inspector of Central Bureau of Investigation, Patna and the man who held the verification and prepared report. PW 6 Masihuzzamah was the Secretary of the Railway Board. PW 7 S. K. Mukhopadhaya was the Senior Scientific Officer, Calcutta. PW 8 R. P. Sharma is the Assistant in the SBI, Patna. PW 9 is the Station Manager, Patna. PW 10 Arun Prasad was the Office Superintendent (Establishment), Divisional Railway Manager Office, Danapur and PW 11 R. C. Choudhary is the Inspector, Central Bureau of Investigation, Patna. On behalf of the defence, four witnesses have been examined. They are :- DW 1 S. N. Pandey, Ex. Divisional Commercial Superintendent, Divisional Railway Manager, Danapur, DW 2 S. N. Sharma is the Cultivator, DW 3 S. A. Alam is the Ex. Senior Divisional Commercial Superintendent, Divisional Railway Manager, Danapur and DW 4 is the appellant himself who was ACS I, DRM, Danapur. The arguments advanced is that on receipt of the 6 complaint by B. B. Verma on 18.08.1992 (Exhibit 8), there was an order to verify the allegations. Exhibit 3 is the verification report prepared by PW 5 Santosh Kumar. It has been argued that the time of filing of the complaint is not mentioned in Exhibit 8, however, the time gap of lodging of the complaint, preparation of verification of report and lodging of formal First Information Report have been highlighted on behalf of the defence to indicate that the verification was nothing but a piece of table work maneuvered by PW 3 . The timing of verification as mentioned by the witnesses contradict each other and it is said that it is not possible for the Central Bureau of Investigation Officers to leave the Patna Central Bureau of Investigation Office at Patna and reach Danapur and return back to the Central Bureau of Investigation Office, within the time frame as mentioned in the evidence. For this purpose, the Court will refer to the evidence and the documents, as this point has been highlighted by the prosecution and the defence both. PW 5 Santosh Kumar has stated in paragraph 12 that he received the complaint at 10 AM and admits that he has not noted the time of the complaint or made any endorsement on it. At paragraph 13, he deposed that he reached the office of the General Regional Manager (at Danapur) at about 11:15. He denies that Z. U. Ahmad was 7 not present at the time when he reached Danapur. At paragraph 17, he states that he reached his Office (Central Bureau of Investigation Office) between 11 to 11:30. His evidence on this point has to be considered along with the evidence of PW 3 B. B. Verma, the complainant. At paragraph 28, PW 3 has deposed that on 18.08.1992 at 09:30 to 09:45 in the morning he went to the Central Bureau of Investigation Office. He claims that he along with the Central Bureau of Investigation Officer (PW 5) left the Central Bureau of Investigation Office at 10:30 AM and left the Office of the Divisional Railway Manager at Danapur at about 12:30 to 12:45 and reached the Central Bureau of Investigation Office at 2 to 2:15 in the afternoon. On the basis of the evidence of the aforesaid two witnesses, it has been argued that the timings as stated by PWs 3 and 5 do not tally inasmuch as there is one hour difference between the time given by PW 5 Santosh Kumar and PW 3 the complainant. It may be noted here that they were traveling from Patna to Danapur which is at quite a distance, the road is very busy and it usually takes 45 minutes to 01 hour to drive down to Danapur from Patna. It is, therefore, submitted that infact no verification took place. In order to support this aspect of the matter, the defence has also adduced certain witnesses. DW 1 is the Ex. Divisional Commercial Manager and was posted at Danapur on the relevant date, as per Exhibit K which is a document 8 showing that certain wagons had been received at Digha Station which were to be reweighed in presence of the Railway Authorities, as there was complaint regarding shortage in the wagons. For this purpose, Z. U. Ahmad was directed to visit the Digha Site on 18.08.1992. Exhibit K/2 is the signature of DW 1 which he has admitted in his evidence. At paragraph 3, DW 1 has stated that this order was issued to Z. U. Ahmad at 10:15 AM. At paragraph 5, he has stated that Z. U. Ahmad returned at 01:30 and gave him a report regarding his visit to the Digha site. The necessity of making the report was due to the meeting, that was to be held at the Patna Junction on 18.08.1992. On behalf of the prosecution, it has been argued that the timings which have come in the evidence of DW 1 are not reflected at Exhibits K and K/2 and as such, on the basis of Exhibit K and K/2, it cannot be said that the appellant was not present, when PWs 3 and 5 visited the spot. On the other hand, Counsel for the appellant has argued that Exhibit K/1 which is the report prepared by Z. U. Ahmad after visiting the Digha site for the purpose of measuring the wagons has been prepared and submitted on 18.08.1992 which would indicate that the appellant had gone to Digha site to carry out the orders of DW 1 and as such the argument on behalf of the prosecution, that no time was mentioned in Exhibits K, K/1 and K/2 cannot be held as a circumstance against the prosecution, especially as they 9 have not challenged the documents K, K/1 and K/2 on the ground that they are an afterthought. The documents have to be read along with the evidence. There was no reason why the prosecution did not indicate the time in the verification report as it is the duty of the prosecution to act in a manner which would leave no doubt in the minds of the Courts with respect to the manner in which verification has done as this forms the very basis of conducting a „trap‟ and because an offences of this nature affects the service of the persons accused of taking bribe. In this context, it would also be relevant to consider the fact that the formal First Information Report was drawn at 01 o‟ clock. Now, if this aspect is correct, then the evidence of PW 3 that he reached Central Bureau of Investigation Office, Patna between 2 to 2:15 PM cannot be treated to be correct and the statement of PW 5 that he reached at 11 to 11:30 is a contradiction with the rest of the timings given by PW 3, and the time in the formal First Information Report and the evidence of PW 5, the verifier. This aspect is also important from another point of view which is that if it is to be believed that the complaint was lodged at 10 AM as stated by PW 5 at paragraph 10, it is not physically feasible for any person to go through the complaint, take permission and the orders of the competent authority to verify the complaint, to leave the Central Bureau 10 of Investigation Office and reach Danapur, conduct the verification and report back, all within a span of an hour or even an hour and a half. Therefore, the prosecution case that the verification was done on 18.08.1992 seems to be doubtful, full of contradictions. The second question which has been raised in the appeal is that the manner in which the trap was conducted appears to be unbelievable. Platform No. 1 of Patna Junction is one of the busiest place in Patna. This Court can take judicial notice of the fact that there is virtually no space or place where a trap of this kind can be successfully conducted, inasmuch, as on the platform where there are several persons walking in opposite directions, anyone can hand over money to a person, in a jiffy without even realizing that he is being set up, especially if it is a colleague handing over the money, the person innocently may even accept that amount, under these circumstances, the allegation that the appellant accepted Rs. 2,000/- from PW 3, knowing it to be a bribe, seems to be really far fetched. The argument seems reasonable as any resident to Patna knows the factual position at the Railway Station which is very crowded especially in the evening and even if the worst view is taken, it may be said that some cash was handed over by a colleague, and before knowing or putting questions, the man is caught, bundled into a car and taken to the Central 11 Bureau of Investigation Office. It has been categorically denied that any amount exchanged hands for any purpose whatsoever, payment of bribe, if demanded, would have been made at any Office of the Patna Junction, but to imagine that it would be on the platform does not give much credit to the prosecution version. In any event, the prosecution version which has come forth is that the complainant, in full to be view, at the main exit gate of Patna Junction, offers Rs. 2,000/- to the appellant. It is said that as soon as the appellant received the money, he was caught and taken to the Central Bureau of Investigation Office. The plea on behalf of the prosecution is that it was not possible to conduct the search and seizure procedure at the Patna Junction as there was an apprehension that a large crowd would gather and there may be a law & order problem. To conduct all the formalities of dipping the hands and money in Central Bureau of Investigation Office appears to be unjustified as there are several places in Patna Junction which are secluded and where the seizure and all the formalities can be done without any disturbance. It has been specifically stated that the G.R.P. Office, the Railway Police Officer, the Railway Magistrate Chamber and the Court Room and the Office of the Station Manager are peaceful places where all the formalities could have been conducted. It is not as if there was no space available to conduct the formalities at the 12 Railway Station. The case made out on behalf of the prosecution that they had apprehension that a crowd would gather and disturb the proceedings is far fetched and unbelievable. It is not the case that as soon as the appellant was caught, a number of people gathered that would lead to the apprehension of some untowards incident. As a result, the Court finds that the factum of recovery is tainted, and unreliable. However, I may clarify here that this finding of the Court is based not only because of the manner in which the raid was conducted, but because of the fact that there are other anomalies in the entire procedure as mentioned above which also have led this Court to come to the aforesaid conclusion. In this context, I may note that the evidence that has been adduced on behalf of the prosecution is a bare statement that they apprehend that a crowd would gather. However, there is no evidence whatsoever in the evidence adduced on behalf of the prosecution that infact they had come mentally and physically prepared to complete the formalities for preparing documents related to search and seizure list or even dipping the money and the hands of the appellant in the menophthelene solution at the Railway Station. From the evidence, the Court gets a clear impression that the idea was to take the appellant to the Central Bureau of Investigation Office and thereafter conduct the search and 13 seizure. It has been argued that the complainant B. B. Verma has a tainted service records. He was punished in the year 1982 when he was posted at Patna Junction. He was involved in malpractice and was punished on 26.11.1983 within a year of his appointment and again on 11.06.1984. The said punishments have been entered into his service books which are Exhibit A and have been accepted as correct by PW 3 at paragraph 20 of his evidence. For this purpose, on behalf of the appellant, Exhibit N has been produced to show that B. B. Verma was Incharge of delivery of perishable goods. Exhibit D has been highlighted to indicate that in the year 1991, B. B. Verma was responsible for delivery of perishable goods with receipts, which led to claims being made against the Railways. The inspection note of Shri A. K. Biswas, Chief Claim Officer, Kolkata who conducted the inspection at Patna Junction on 27.09.1991 indicates that delivery of 949 perishable items were allowed between January, 1991 to August, 1991 without taking railway receipts which led to false claim cases filed against the Railways. It is said that B. B. Verma was responsible and was in connivance with such unscrupulous merchants. It is for this reason, it appears that B.B. Verma was transferred from Patna Junction to Bihta Railway Station vide order dated 02.04.1992 (Exhibit 12) issued under the orders of the 14 Senior Divisional Commercial Superintendent. It appears that a representation was made by B. B. Verma that his transfer should be stayed but was rejected by the Divisional Commercial Superintendent on 21.07.1992 and the file was marked to Establishment (Exhibit C/2). On the basis of the aforesaid facts, Counsel for the appellant submits that it cannot be said that the appellant was demanding bribe when the matter of transfer of B. B. Verma had already been finalized and rejected by the authority i.e. the Divisional Commercial Superintendent and the Additional Divisional Railway Manager who are the competent person to transfer the complainant. B. B. Verma was aggrieved by the appellant as he thought that the appellant would help him to get the transfer orders stayed and the appellant had refused to entertain him which has led to such action by B. B. Verma. The entire matter has been triggered by the assumption that the appellant would be able to influence Shri S. A. Alam, Senior Divisional Commercial Superintendent who had put up a note for transfer of B. B. Verma to the Divisional Railway Manager (Exhibits B, B/1 & B/2). The story that the appellant had demanded bribe of a petty sum of Rs. 5,000/- to Stay the order of transfer that too on behalf of the Additional Divisional Railway Manager or the Divisional Commercial Superintendent is unbelievable and it appears that the entire case has been tutored by B. B. 15 Verma. The Trial Court has convicted the appellant without considering the fact that PWs 3 and 5 have made contradictory statements with respect to the verification, the exhibits K, K/1 and K/2, without considering the motive behind the said demand of money, the manner in which the recovery has taken place, rather the Trial Court has emphasized on the evidence of the witnesses with respect to recovery, search and seizure prepared by the Central Bureau of Investigation Officers. The approach of the Trial Court is defective, inasmuch, as each part of the prosecution case has to be proved. Once, some doubt is thrown with respect to the manner in which the verification was made and the motive for the demand of bribe, the Trial Court has to examine the procedure adopted by the Central Bureau of Investigation Officers in the aforesaid background. As stated earlier, this Court finds that the verification report prepared is not above suspicion, there are two versions with respect to the manner of preparation of the verification report, there is anomaly in the document prepared inasmuch as the complaint petition, does not give any time and the verification report also does not state the time when the verification was made. It becomes an important factor in a case of this nature as the very initiation of the case depends upon the complaint and the verification and if there is some defect in the manner in 16 which these documents are prepared, or a doubt is created with respect to the preparation of the document vis-à-vis the oral evidence, it cannot be held beyond doubt that the verification was done in a proper manner. This factor alone, however, cannot be a consideration for acquitting the appellant. The bundle of facts such as doubt in the manner in which the verification was prepared, the motive for the demand of bribe and the manner in which the search and seizure was made, the unprobability involved which has led the Court to conclude that the appellant has been wrongly convicted in this case. Much emphasis has been placed on the actual offering of the bribe at the Railway Station at Patna Junction and the preparation of the seizure list and the post-trap procedures, which according to the prosecution case, has been followed to T. This Court, on the other hand finds it improbable and unbelievable that a man would offer some money by way of bribe at Gate No. 1 of Patna Junction. Gate No. 1 is the point of entry and exit of passengers. More than one Ticket Collector are standing at this point. In such circumstances, anyone can offer money as stated above by the colleague and the colleague would innocently or involuntarily take the money and before he knows, he becomes involve in a case of demanded of bribe and is booked under the provisions of the Prevention of Corruption 17 Act. To top it all, the post trap procedure is conducted in the safe and secure involvement of the Central Bureau of Investigation Office. This procedure is not palatable to the Court. Their being several independent, secure spots at the Patna Railway Station and also sufficient security by way of G.R.P. Office being at 50-100 yards from the point of exit. All the aforesaid facts together lead this Court to hold that the prosecution has not been able to establish its case beyond doubt. It may also be noted that much had been argued on behalf of the prosecution that the Officers of the Central Bureau of Investigation had no motive for framing the appellant. The appellant has tried to show that independent witnesses who belong to