“CR” IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 23RD MARCH 2011 / 2ND CHAITHRA 1933 CRL.A.No. 871 of 2001(A) --------------------- C.C. No. 78 of 2000 of the Court of the Enquiry Commissioner and Spl. Judge, Thiruvananthapuram APPELLANT(S): ---------- N.P. Ramadas, s/o. K. Pappu, Formerly Food Inspector, Addor Circle BY ADV. SRI.B.RAMAN PILLAI RESPONDENT(S): ------------ State, represented by the Public Prosecutor, High court of kerala, Ernakulam PUBLIC PROSECUTOR Sri. M.R. Venugopal THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16/03/2011, ALONG WITH CRA NO. 872 OF 2001 THE COURT ON 23/03/2011 DELIVERED THE FOLLOWING: “CR” V. RAMKUMAR, J. ........................................................ Crl. Appeal 871 & 872 of 2001 ......................................................... Dated: 23 rd March, 2011 COMMON JUDGMENT In these appeals filed under Sec. 374 (2) Cr.P.C. the appellants who are accused Nos. 1 and 2 respectively in C.C. 78 of 2000 on the file of the Court of the Enquiry Commissioner and Special Judge, Thiruvnanathapuram, challenge the conviction entered and the sentence passed against them for offences punishable under Sections 7 & 13 (2) read with Sec. 13 (1) (d) of the Prevention of Corruption Act, 1938 (“the P.C. Act” for short) and Section 34 of the Indian Penal Code (“the I.P.C.” for short). THE PROSECUTION CASE 2. The case of the prosecution can be summarised as follows:- Crl. Appeal 871 & 872 of 2001 -:2:- A1 ( N.P. Ramadas) was working as the Food Inspector, Adoor Circle during the period from June -1996 to August 1998. A2 (S.A. Muhammed Salim Khan) was working as a Peon in the office of A1 during the period from June 1997 to August 1998. In furtherance of their common intention to obtain undue pecuniary advantage , A1 and A2 who were working as public servants abused their official position by A1 demanding a bribe of ` 6,000/- from P.W.1 (N.N. Baby), the proprietor of a grocery shop by name “Naluthundil Stores”, near Kadambanad Bazaar in Pathanamthitta District on 24- 08-1998 at about 10.30 a.m. in the office of A1 at Adoor as a motive for saving P.W.1 from a Food Adulteration Case which would be launched against him in respect of turmeric (മഞള ) purchased by A1 accompanied by A2 from the shop of P.W.1 on 22-08-1998 . On 26-08-1998 at 3.45 p.m. A1 repeated the demand from the premises of his office . In Crl. Appeal 871 & 872 of 2001 -:3:- pursuance of his demand and in furtherance of the common intention of A1 and A2 to obtain undue pecuniary advantage, A2 accepted ` 6,000/- in the form of tainted notes from P.W.1 at about 3.45 p.m. on 26-08-1998 when P.W.1 paid the said amount to A2 as directed by A1. A1 and A2 have thereby committed offences punishable under Sections 7 and 13 (2) read with Sec. 13 (1) (d) of the P.C. Act and Sec. 34 I.P.C. THE TRIAL 3. On the accused persons pleading not guilty to the charge framed against them by the court below for the aforementioned offences, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 12 witnesses as P.Ws 1 to 12 and got marked 21 documents as Exts. P1 to P21 and 8 material objects as Mos 1 to 8. 4. After the close of the prosecution evidence the Crl. Appeal 871 & 872 of 2001 -:4:- accused were questioned under Sec. 313 (1) (b) Cr.P.C. with regard to the incriminating circumstances appearing against them in the evidence for the prosecution. They denied those circumstances and maintained their innocence. The first accused had the following to submit before the court below:- On 22-08-1998 he along with his office peon Muhammed Salim Khan (A2) had visited the grocery shop of P.W.1 (N.N. Baby) at Kadambanad. P.W.1 was at that time engaged in the sale of provisions. After introducing himself as the Food Inspector, A1 inspected the shop . About 50 kgms. of turmeric was kept for sale there in a gunny bag. He enquired with P.W.1 about the price, purchase bill etc. of turmeric for the purpose of taking samples therefrom. Thereupon P.W.1 wanted to be excused for a moment and he went out of the shop and contacted somebody over the phone. After sampling the turmeric A1 noted down the shop number, address of the licencee, licence details, particulars of the sample etc. other than the price of turmeric in an informal rough book kept by him and waited for P.W.1 to come . P.W.1 returned Crl. Appeal 871 & 872 of 2001 -:5:- and told him that he was not in possession of the wholesale purchase bill of turmeric. Since the price of turmeric was not available, P.W1 was reluctant to sell the turmeric to the Food Inspector. P.W.1 then offered to sell any other commodity regarding the wholesale purchase bill was available with him. A1 gave Form VI notice to P.W. 1 and asked him to sell 750 gms. of black gram dhal. P.W.1 put his signature on the counterfoil of Form VI notice . Below the signature, instead of putting the date as 22-8- 1998, P.W. 1 wrote 2 -8-1998. A1 gave P.W.1 the price of black gram dhal and P.W.1 gave him the bill for the same. The black gram dhal which was purchased by him after giving P.W.1 Form VI notice and the price for the same was divided into three parts and transferred into three clean glass bottles which were corked air tight. He labelled each bottle and wrapped each sample bottle with brown paper . He labelled each wrapper on which the signature of P.W.1 was obtained. Thereafter, he sealed the bottles using lac . P.W.1. gave him the details of the wholesale purchase bill in a paper. P.W.1 affixed his signature in the mahazar prepared by A1. The date put by P.W.1 on the sales bill , Crl. Appeal 871 & 872 of 2001 -:6:- Form VI notice and mahazar was 2 -8-98 instead of 22-08- 98. When A1 asked him the reason for leaving a space after the digit 2 , P.W.1 replied that A1 could change the date to suit his convenience. A1 and A2 reached their office along with the samples. A1 consulted the A.P.P. regarding the conduct of P.W.1 putting a different date. A1 asked the A.P.P. as to what action was to be taken against P.W.1 for causing obstruction to his official duty by putting a different date. He was advised that since P.W.1 had sold him the sample, in case there was adulteration revealed by the report of the analyst, A1 while charging P.W.1 for the adulteration, could incorporate the legal provision for obstruction also along with the charge. It was the carbon copy of the mahazar which he had taken to the A.P.P. that was seized by the Vigilance Police. On the same day after lunch he had been to the Omalloor Panchayat and had taken sample of cumin seeds (ജരക ) using the paper slip showing the Sl.No. assigned by the Local Health Authority. During his busy schedule he could not note down the paper slip numbers. But the mahazars and contemporaneous records will clearly show Crl. Appeal 871 & 872 of 2001 -:7:- that he had taken samples using both the slips . The reports of the Public Analyst will also show that the Public Analyst had received the samples . Moreover, both the samples had been given to the District Food Inspector on 24-08-1998 after entering the same in the local delivery book. On the 24th there was a marriage for the daughter of his neighbour residing near his ancestral home . After leaving his family in the house of marriage he reached his office at about 1'0 clock to ascertain whether the samples drawn by him on the 22nd were despatched to the Public Analyst and the District Food Inspector. At that time there was nobody in the office. He got into the office room using his personal key . His Peon (A2) came within five minutes. The peon told him that the samples had been despatched . Then he decided to attend to two complaints . He took his sample bag and proceeded to a milk Society in Mallappuzhasseri Panchayat for sampling milk taking the Peon also with him. The employees of the said Society told him that their Secretary was a member of the Mallappuzhassery Panchayath and he was attending a meeting of the Panchayath and would be late to reach the Society. A1 told them that he would do the sampling later Crl. Appeal 871 & 872 of 2001 -:8:- and sent back the Peon. Thereafter he took his wife and child to his house. He was proceeding via Kozhencherry and on the way he conducted a formal inspection at Zion Hotel at Kozhencherry. He has noted his visit to the Society and to Zion Hotel in Ext.P10 note book. He was in his office only for 10 minutes in the afternoon of 24-08- 1998. On that day he had never met P.W.1. On 26-08- 1998 at about 9.30 a.m. he reached his office and proceeded to the office of the D.D.P. , Pathanamthitta, to participate in the trial of C.C. 38 of 1995 before the Chief Judicial Magistrate's Court. After the evidence was over he went home in the afternoon. On that day he had not gone to his office after 9.30 a.m. When he goes for inspection in his capacity as Food Inspector, he will strictly follow the sampling formalities prescribed by law. Very elaborate and meticulous procedure has been prescribed in the P.F.A. Act to ensure that sampling is done only in respect of the commodity sold by the vendor and also to ensure that the sampling is done in the presence of the vendor to make sure that there is no opportunity to subsequently change the sample. It is after reaching the office that Form VII memorandum and requisite copies of the same are Crl. Appeal 871 & 872 of 2001 -:9:- prepared. Form VII memorandum as well as one part of the sample are despatched to the public analyst in a sealed cover on the next working day itself. A copy of the Form VII memorandum and a copy of the specimen impression of the seal used for sampling are separately sent to the public analyst to enable him to ascertain that the sample which is subjected to analysis is the very same sample despatched to him. Likewise, the remaining two samples are despatched to the Local Health Authority who is the District Food Inspector . By the afternoon of 24-8-1998 all the samples taken by him had already been despatched to their destinations. Even before P.W.1 claims to have entrusted the black gram dhal with A1 allegedly for substitution, the samples of black gram dhal had already been despatched from his office. Hence, there was absolutely no chance for any substitution . Moreover, it takes minimum 3 to 4 hours for the preparation of the mahazar and the supporting documents and for despatching the same . What has been deposed by P.W.1 before Court is that the paper slips which were pasted on the samples of turmeric were seen pasted on the new samples of black gram dhal. There is absolutely no possibility for any such Crl. Appeal 871 & 872 of 2001 -:10:- substitution. He has not demanded any bribe from P.W.1. P.W.1 had foisted a false case against him at the instigation of others. 5. The 2nd accused filed a written statement to the following effect:- On 22-08-1998 himself and A1 had been to the grocery shop of P.W.1. A1 demanded turmeric for sampling. Since P.W.1 did not have the bill he was unwilling to sell turmeric. When A1 asked him the reason, P.W.1 told him that he was not having the wholesale bill for turmeric. P.W.1 then offered to give any other commodity for which there was wholesale bill. Accordingly, A1 took a sample of black gram dhal in accordance with law. The signatures of P.W.1 were obtained on the sample bottles. Thereafter, A1 and A2 reached the office along with the samples. In the afternoon himself and A1 went to a grocery shop in Omalloor Panchayath and took samples of cumin seeds and prepared a mahazar. After reaching the office he went home. On 24-08-1998 at about 10 a.m. he reached the office. He despatched to the Public Analyst through the Crl. Appeal 871 & 872 of 2001 -:11:- DTDC Adoor, Tthe samples which were taken on 22-08- 1998. He reached back the office at 10.45 a.m. The remaining samples were taken by him to the office of the D.F.I. at Omalloor. He had obtained the acknowledgment of receipt of sample in the local delivery book by the Clerk in that office. It was past 12' noon when he returned from the office of D.F.I . He reached his office at about 1 p.m. A1 was there in the office. A1 then took him to the Milk Society at Mallapuzhassery Panchayath for taking samples of milk. Since they were told that the Secretary of the Society who was a member of the Panchayath was engaged in a meeting, A1 did not take samples therefrom. A1 permitted A2 to go to the office and A2 reached the office at 4.30 p.m. In the afternoon of 26-08-1998 he was cleaning the bottles to be used for sampling . After about 4 p.m. P.W.1 came to the office and enquired about A1. He told P.W.1 that A1 was not in the office. After some time P.W.1 was seen going out of the office. At about 4.15 p.m. he locked the office and proceeded to have his evening tea. When he got into the road, there were two Jeeps with persons sitting inside the Jeep. P.W.1 was also among them. One among them asked him as to where he was going Crl. Appeal 871 & 872 of 2001 -:12:- when the Food Inspector was not there. The said person introduced himself as the Dy.S.P. (Vigilance), Pathanamthitta and asked him to open the office. When he told him that he was going to take his tea and he shall open the office thereafter, the officer forcibly made him open the office. At that time, some of his companions had held his hands behind him. At that time as per the directions of the Dy.S.P., P.W.1 inserted a few currency notes in the right hand side pocket of his pants. He was made to sit on a stool. He was then asked to take out the notes which were inserted in his pocket by P.W1. When he refused, he was abused and caught hold of by the neck. Fearing more harm he obeyed them by taking out the currency notes which were inserted by P.W. 1 in his pocket. He placed the notes on the table. Thereafter his right hand fingers were forcibly dipped in lime water and thereafter he was arrested and taken to the Vigilance Office at Pathanamthitta. In an unsuccessful attempt by P.W.1 and the local Merchants' Association to catch A1, a false trap was staged by them with the help of the Dy.S.P. and he was made a scape-goat. He is innocent. Crl. Appeal 871 & 872 of 2001 -:13:- TRIAL COURT'S CONCLUSION 6. The learned Special Judge, after trial, as per Judgment dated 14-01-2001 found both the appellants guilty of the offences punishable under Sections 7 and 13 (2) read with Sec. 13 (1) (d) of the P.C. Act and read with Sec. 34 I.P.C. For his conviction under Sec. 7 of the P.C. Act read with Sec. 34 I.P.C. A1 was sentenced to rigorous imprisonment for 4 years and to pay a fine of ` 20,000/- and on default to pay the fine to suffer rigorous imprisonment for one year. For his conviction under 13 (2) read with Sec. 13 (1) (d) of the P.C. Act and read with Sec. 34 I.P.C. A1 was sentenced to rigorous imprisonment for two years. For his conviction under Sec. 7 of the P.C. Act read with Sec. 34 I.P.C. A2 was sentenced to rigorous imprisonment for four years and to pay fine of ` 10,0000/- and on default to pay the fine to suffer rigorous Crl. Appeal 871 & 872 of 2001 -:14:- imprisonment for six months. For his conviction under Sec. 13 (2) read with Sec. 13 (1)(d) of the P.C. Act and read with Sec. 34 I.P.C. A2 was sentenced to rigorous imprisonment for two years . The substantive sentences of both A1 and A2 were directed to run concurrently. It is the above Judgment which is assailed in these appeals. THESE APPEALS 7. I heard the learned counsel appearing for the appellants and Adv. Sri. M.R. Venugopal, the learned Public Prosecutor who defended the State. 8. The only point which arises for consideration in these appeals is as to whether the conviction entered and the sentence passed against both or any of the appellants are sustainable or not ? THE POINT: THE PROSECUTION WITNESSES 9. P.W.1 (N.N. Baby) is the complainant . He is the Crl. Appeal 871 & 872 of 2001 -:15:- proprietor of Naluthundil Stores which is a grocery shop at Kadambanad Bazaar in Pathanamthitta District. P.W.2 (P.Achuthan Pillai) was a Salesman in the shop of P.W.1. He supported the prosecution. P.W.3 ( M.K. Aji Kumar) is a Clerk in the Taluk Office, Kozhencherry . He is a witness to the trap laid by P.W.11. P.W. 4 (S. Balu) was a clerk in the office of A1. Ext.P10 personal note book of A1 was marked through him. (P.W.5 K.P. Samuel) is the owner of the building at Adoor where A1's office was found functioning. (P.W.6 (K.Ajith Kumar) who was the District Food Inspector, Pathanamthitta, produced documents. P.W.7 (K.P. Ramachandran Nair) who was a Sales Tax Officer had witnessed the extraction by the Investigating Officer (P.W.11) of Ext.P15 series of specimen hand writings of A1. P.W. 8 (K. Rajendran Pillai) who was the Village Officer of Periyanad Village proved Ext.P16 plan with regard to the office premises of A1 and A2 . P.W. 9 (Dr.V.K.Rajan) who was the Crl. Appeal 871 & 872 of 2001 -:16:- Director of Health Services, Thiruvananthapuram, proved Ext.P17 sanction to prosecute both A1 and A2. P.W. 10 (K.R. Ravidas) was the handwriting expert in the Forensic Science Laboratory. He proved Ext. P18 report and P18 (a) reasons in support of the said report to show that the handwriting in Ext.P10 personal note book was that of A1. P.W.11 (Varghese George) was the Dy.S.P. (Vigilance), Pathanamthitta who laid the trap and conducted the investigation till 27-08-1998. P.W12 (S.T. Habeeb Rehiman Rawther) was the Inspector who conducted the investigation and seized the documents produced by P.W.6 as well as other documents as per inventories prepared by him. On 17-09- 1998 he had seized Ext.P10 Note Book as per Ext.P9 inventory. On 16-11-1998 he had taken Ext.P15 series of specimen handwritings of A1 in the presence of P.W.7. He also proved that the charge-sheet against A1 and A2 was filed by Philip Joseph, Dy.S,P, VACB, Pathanamthitta, (C.W.27). Crl. Appeal 871 & 872 of 2001 -:17:- ARGUMENTS OF THE APPELLANTS 10. The learned counsel appearing for the appellants made the following submissions before me in support of the appeals:- Even at the time of Ext.P4 entrustment mahazar which was prepared on 26-08-1998, the instruction given by P.W.11 (trapping officer) to P.W.1 was that P.W.1 should give the currency notes smeared with phenolphthalein powder when demanded by the accused ( പ ത ആവശപടല ) . The very fact that P.W.11 used singular when referring to the accused would show that the real grievance of P.W.1 was only against one person. In more than one place Ext.P4 mahazar uses only singular while referring to the accused . But in Ext.P2 (a) F.I.R. there are two accused persons. Ext.P2 F.I. statement and Ext.P2 (a) FIR purportedly recorded on 26-08-1998 , reached the Special Court only on 27- 08-1998. This shows that Exts. P2 and P2 (a) are Crl. Appeal 871 & 872 of 2001 -:18:- subsequently concocted documents made with a view to fit in with the subsequent case of the prosecution that both A1 and A2 had demanded bribe . The case of P.W.1 that A1 purchased turmeric on 22-08-1998 for the purpose of sampling from the grocery shop of P.W.1 cannot be believed for a moment since the three packets of turmeric (MO8 series) seized from the office of A1 do not contain the signature of A1 or the seals. On the contrary, consequent on the reluctance on the part of P.W.1 to sell turmeric for want of the bill of wholesale purchase, what A1 purchased for the purpose of sampling on 22-08-1998 was black gramdhal as is evidenced by the defence documents. Instead of putting the date as 22nd on Exts. D1, D2 and D4, P.W.1 was cunningly putting the date as 2 leaving a space for subsequent manipulation through interpolation. While according to P.W.1 on 26- 08-1998, when he met A1 on the road in front of A1's office A1 told him that his peon was in the office and the money may be given tot he peon, according to P.W.3 who was in the company of P.W.1, A1 asked P.W.1 to give it to the other person (മറ കക) without referring to Crl. Appeal 871 & 872 of 2001 -:19:- him as his peon or by name. With regard to the demand there is only the solitary testimony of P.W.1, a decoy who can easily be dubbed as an accomplice. Hence, there should have been independent corroboration to his evidence. P.W.3 who accompanied the raid party was a person who was interested in the success of the trap and his evidence has to be eschewed as that of an interested witness. P.W1 is the solitary witness who has stated that on 24-08-1998 A1 and A2 were in the office of A1 and at that time A1 demanded bribe in the presence of A2. Besides a part-time sweeper, P.W.4 was also working in the same office of A1. But P.W.4 had not seen the trap or P.W.1 visiting the office on any of the dates mentioned by P.W.1. P.W.4 was not treated as hostile nor cross- examined by the Public Prosecutor. The prosecution did not examine the part-time sweeper. Admittedly, it was not A1 who received the money and the prosecution has failed to prove that A1 obtained any pecuniary advantage. The subsequent confession by A2 to the effect that he received the currency notes as per the directions of A1 cannot be used against A1. P.W.1 had not told A1 that he would be bringing the money on 26-08-1998. Crl. Appeal 871 & 872 of 2001 -:20:- Therefore, there was no occasion for A1 to expect P.W.1 on that day so as to be present on the road in front of his office when P.W.1 came there in the company of the officials of the Vigilance Police. In the case of A2, the tainted notes were actually thrust into his pocket. P.W.3 who had no previous acquaintance with A2 had seen him only for three or four minutes. Hence, his identification of A2 in court without there being any test identification parade, was of no value. A2 is not charged with either abetment or criminal conspiracy. Hence, the conviction of A2 also will not stand. Exts. P4 and P8 pre-trap and post-trap mahazar containing the statements of P.W.3 and A2 are hit by Sec. 162 Cr.P.C. and, therefore, inadmissible in evidence. The conviction entered and the sentence passed by the Special Court overlooking the above aspects cannot be sustained. JUDICIAL RESOLUTION 11. I am afraid that I cannot agree with the above submissions made on behalf of the appellants. Crl. Appeal 871 & 872 of 2001 -:21:- Sequential narration of the Prosecution Evidence 12.