Crl.A.No.73/2001 Page 1 of 37 IN THE HIGH COURT OF DELHI, AT NEW DELHI Crl.A No.73/2001 % Judgment delivered on July 31st, 2009 # Darshan Lal .... Appellant Through : Mr. Anurag Jain, Adv. for the appellant. Versus $ State (CBI) .... Respondent ^ Through : Mr. Ashiesh Kumar, Adv. For the CBI. CORAM: HON'BLE MR. JUSTICE G.S.SISTANI 1.Whether reporters of local papers may be allowed to see the Judgment ? YES 2.To be referred to the Reporter or not? YES 3.Whether the judgment should be reported in the Digest? YES 1. The present appeal is directed against the judgment 30.01.2001 and order on sentence dated 31.01.2001 passed by the learned Special Judge, Tis Hazari in Criminal Case No.127/99, RC No.83- A/95. The appellant was convicted to Rigorous Imprisonment (hereinafter referred to as, ―R.I.‖) for a period of two years and a fine of Rs. 10,000/- under Section 7 of the Prevention of Corruption Act, 1988. In default of the payment of fine, the appellant was to undergo RI for a period of six months. The appellant was also convicted under section 13(1)(d) read with section 13(2) of the Prevention of Corruption Act, 1988 for a period of three years and a fine of Rs. 10,000/-. In default of the payment of fine, the appellant was to undergo RI for a period of six months. Both the sentences were to run concurrently, and Crl.A.No.73/2001 Page 2 of 37 the period of detention if any undergone by the appellant, was to be deducted. 2. The facts of the case as noticed by the learned Special Judge are that a case was registered on the basis of a written complaint of one Sh. Bankey Lal Chauhan regarding demand of Rs.1000/- as bribe by Sh.Darshan Lal ASI, Police Station Vinay Nagar, Delhi, for releasing his cousin, Pawan Kumar and his friend Vikram, otherwise they would be falsely implicated in a case. Sh.Darshan Lal, directed the complainant to come to Police Station Vinay Nagar after 5:00 p.m. On 21.9.1995 while demanding bribe, Darshan Lal had threatened to plant a knife and to send them to jail, if demand was not fulfilled. Since Bankey Lal Chauhan was not willing to pay the bribe, he on 21.9.1995 lodged a complaint to the SP, CBI/ACB, Delhi, on the basis of which a case was registered and one A.G.L. Kaul Inspector was deputed for laying trap. On 21.9.1995, Inspector Kaul arranged for the presence of two independent witnesses and completed the pre-trap formalities. The pre-trap formalities were completed in the presence of two witnesses namely, Mrs.Kiran Saxena, Assistant Director and Mrs.Urmila Malhotra, Dy. Director, Central Translation Bureau. The complainant produced a sum of Rs.1000/- as trap money, which was treated with phenolphthalein powder and practical demonstration regarding the reaction of phenolphthalein powder with Sodium carbonate solution was also given and explained to all members of the raiding party. The tainted amount of Rs.1000/- was kept in the pocket of the shirt of the complainant and he was instructed to Crl.A.No.73/2001 Page 3 of 37 handover the same to Mr.Darshan Lal, ASI only on his specific demand and not otherwise. Mrs.Saxena was asked to act as a shadow witness, in order to overhear the conversation between the appellant and the complainant and to see the transaction of the tainted money. She was also directed to give a pre-arranged signal on completion of the transaction, to the members of the trap party. 3. The trap party left CBI office at 6:00 p.m. and reached near Police Station Sarojini Nagar at about 6:25 p.m. The complainant and shadow witnesses were directed to proceed to the premises of the police station. At about 6:35 p.m. both of them came out and the shadow witness informed that Sh.Darshan Lal had told them to come after half an hour. At 7:15 p.m. both of them again went inside the Police Station and after some time came out and informed that Sh. Darshan Lal was not present at his seat. Again at 7:50 p.m. the complainant and shadow witness went inside the Police Station. At about 8:05 p.m., the pre-arranged signal was received from the shadow witness. The members of the trap party on getting the signal, rushed into the room no.1 of Police Station Sarojini Nagar. Sh.Darshan Lal was challenged and caught. The complainant and shadow witness confirmed regarding the demand and acceptance of bribe by the appellant and keeping the same in the backside pocket of his pants. S.I. Vipin Kumar on the direction of Inspector Kaul recovered the bribed money of Rs.1000/- from the back pocket of trousers of the appellant. The number of G.C. notes so recovered tallied with the numbers mentioned in the handing over memo. The right Crl.A.No.73/2001 Page 4 of 37 hand fingers and back pants pocket of Darshan Lal were washed in two separate freshly prepared solutions of Sodium Carbonate which turned pink in colour and the same were kept in two separate bottles and sealed and signed by the witnesses. During the course of investigation, the sealed bottles containing hand wash and pants pocket wash were sent to the CFSL for chemical examination and as per the report of the Chemical Examiner, the washes gave positive result confirming the presence of phenolphthalein powder and Sodium Carbonate in the solutions. Accordingly appellant was charge-sheeted for the offence punishable under section 7 and 13 (2) read with section 13(1) (d) of the Prevention of Corruption Act, 1988. 4. The appellant has assailed the impugned judgment dated 30.01.2001 and order on sentence dated 31.01.2001 firstly on the ground that the sanctioning authority has failed to apply its mind. Learned counsel for the appellant submits that the sanction in this case was granted without any application of mind and was solely based on the draft sanction, DW1/DA. He submits that as per section 19 of the Prevention of Corruption Act, granting sanction is not a mere formality, and in this case, sanction was granted in a mechanical manner and the reasoning of the Court below is without any basis. While relying upon DW1/DA, learned counsel submits that the CBI had addressed a letter to the Deputy Commissioner of Police, South West District, calling upon them, that in case due to some reason if the department wanted to depart from the draft sanction, the matter may be discussed with the undersigned so that the sanction Crl.A.No.73/2001 Page 5 of 37 given is not found wanting. It is submitted by counsel for the appellant that reading of paragraph 4 of this letter would show that the sanctioning authority was not allowed to apply its mind independently. It is further contended that the sanction order is vague and lacks material particulars as nowhere it has been stated as to what is the material which has been perused and considered by the sanctioning authority, which has accorded the sanction. Mr. Jain, learned counsel for the appellant, strongly submits that even otherwise, the evidence of PW-3, Sh. U.N.B. Rao (sanctioning authority) is not reliable. Learned counsel for the appellant has drawn the attention of the Court to the evidence of PW-3 wherein PW-3 has stated that before according sanction, he had perused all the statements of the witnesses recorded, memos, CFSL report and other relevant documents and was satisfied that their existed a prima faice case and thereafter he accorded the sanction. Mr. Jain, learned counsel for the appellant submits that the file of the sanctioning authority was summoned and it was found that besides the draft order of sanction and a report, none of the documents sought to be relied upon by PW-3 were part of the original record. Mr. Jain also contends that the order of sanction does not mention that the sanctioning authority prior to grant of sanction, had perused documents such as the statements, memos, statements of witnesses, CFSL report and other relevant documents. Learned counsel submits that application of mind prior to the grant of sanction is a mandatory requirement and in support of this plea, counsel relies upon the decision of the Apex Court in the case of Crl.A.No.73/2001 Page 6 of 37 State of Karnataka Vs. Ameer Jan, reported at AIR 2008 SC 108 and more particularly relies on para 7. 5. Learned counsel for the appellant submits that cross- examination of PW-1 would show that PW-1 had made material improvements, besides there are contradictions in his statement and he is not a trustworthy and reliable witness. It is contended that Bankey Lal was rather himself a shadow witness of the CBI and was used in the trap. The conduct of the Bankey Lal is unusual inasmuch as the complainant, Bankey Lal had stated in the complaint that Pawan Kumar and Vikram were related to him, however, during cross-examination he was unable to establish any relationship between himself, Pawan Kumar and Vikram and thus this shows that there was no motive or reason for Bankey Lal to make a complaint to the CBI against the appellant herein. It is next contended that admittedly both, Vikram and Pawan Kumar, were already arrested, therefore, the appellant could have been of no help to the complainant. It is thus contended that the story in this case is a false and concocted. He also submits that there was absolutely no motive nor any reason to show as to why the appellant would ask for any bribe in view of the fact that admittedly both Pawan Kumar and Vikram had already been arrested, and there was no ground for him to falsely implicate them or show any favour to Pawan and Vikram. It is also submitted that the trial court has infact convicted the appellant on a mere possibility. The learned trial Court Judge has observed in para 39 of the Judgment that Pawan and Vikram were arrested and both of them were in the locker of Crl.A.No.73/2001 Page 7 of 37 the police and thus possibility of demand of bribe by the appellant from them cannot be ruled out. 6. He also submits that there are deviations and there was no occasion for PW-2 to witness the exchange of money as there was no possibility of this witness to be present at the time when the alleged money was exchanged and even otherwise it was dark. He thus contends that no reliance can be placed on the testimony of PW-2. He also submits that in these circumstances the appellant could not have been convicted as the order of conviction can only be passed when prosecution has been able to establish its case beyond any shadow of doubt. Learned counsel for the appellant contends that there is a contradiction with regard to the nature of conversation which took place between the complainant and the appellant as described by PW- 1 as well as by PW-2. This by itself would show that the testimony of these witnesses are unreliable, and note of which has also been taken by the trial court. 7. He also submits that there are material contradictions as to where the money was kept after the same was received. It is not clear whether the money was kept in the back pocket of the pant or whether the money was kept in the right side pocket of the pant. This lapse according to the counsel for the appellant is material and goes to the root of the matter. Receipt of money is alleged to have been witnessed by PW-1 and PW-2, however, there are material contradictions with regard to the place where the money was demanded and accepted. Crl.A.No.73/2001 Page 8 of 37 8. Mr. Anurag Jain also submits that PW-6, Munni Devi was a material witness of the prosecution, who had turned hostile. PW- 6, Munni Devi did not support the case of the prosecution and there is no reason to disbelieve her testimony as she was not related to either Bankey Lal or the appellant herein. Her evidence is independent and should have been relied upon and considered by the trial court. 9. It is also contended that the complaint was admittedly written by one Vijay Kumar, however, prosecution has failed to examine Vijay Kumar as a witness and this prime evidence and a necessary link, which is missing in the case. This submission is also relevant in view of the fact that the time gap between the demand of bribe and the complaint sought to have been made was very short. 10. It is further submitted that Malkhana Moharar was not examined as the washes of the bottle were to remain with the Malkhana Moharar and further, the constable who took the sample bottle for examination has also not been examined. Thus a very important link which would establish the commission of the offence, is missing. 11. It is also submitted that the evidence of PW-5 would show that at the time when the raid was conducted, S.I. Ranbir Singh was present in the room, However, S.I. Ranbir Singh had refused to witness the post raid proceedings and this witness, i.e. PW-5 was directed to witness the same. Counsel submits that non- production of S.I. Ranbir Singh by the prosecution is fatal to their case, in view of the fact that he was a natural witness present at Crl.A.No.73/2001 Page 9 of 37 the spot and had witnessed the raid and yet he was not examined by the prosecution. It is also submitted that it was necessary for the prosecution to produce S.I. Ranbir Singh, as the investigation by the prosecution must be fair and just, and this witness was the person, who would have given true and correct picture of the innocence of the appellant. 12. Per contra learned counsel for the respondent, CBI submits that the prosecution has been able to establish their case beyond any shadow of doubt. The pre-trap formalities were conducted by the raiding party comprising of two independent witnesses, PWs- Munni Devi and Kamlesh, before they proceeded to the Police Station. He further submits that the appellant was caught red handed taking bribe. The currency notes that were marked for giving, were sprinkled with phenolphthalein powder and when the appellant handled them and dipped his fingers in the Sodium Carbonate solution, the same turned from colourless to pink. He further submits that the sanction was granted after due application of mind. He relies upon the evidence of PW-3, who has clearly stated in his testimony that he had carefully perused the documents and thereafter accorded the sanction. Counsel for CBI has placed reliance upon C.S. Krishnamurthy v. State of Karnataka reported at (2005) 4 SCC 81 and more particularly paragraphs 7 and 9 of the same. He also submits that merely because the sanction was granted as per the draft order, that by itself cannot be a ground to raise the plea of non-application of mind and relies on R. Sundararajan Vs. State, (2006) 12 SCC 749 and more particularly on paragraphs 12 – 14. Crl.A.No.73/2001 Page 10 of 37 13. Counsel for CBI contends that the evidence of the trap laying officer is trustworthy and reliable and in fact that itself can be the sole ground for conviction of appellant and relies on State of U.P. Vs. Zakaullah (1988) 1 SCC 557 and more particularly paragraph 12 of the same. He also submits that non-examination of Malkhana Moharar cannot be proved fatal to the case of the prosecution, as putting of phenolphthalein powder on the notes is not as per any statutory provision but for the satisfaction of the officials and for this purpose he placed reliance on paragraph 13 of the above said judgment. 14. I have heard learned counsel for the parties and minutely scrutinized the evidence on record. 15. The submissions of learned counsel for the appellant can be summarized as under: i. sanctioning authority has failed to apply its mind inasmuch as the sanction order is vague and lacks material particulars. ii. the evidence of complainant, Bankey Lal (PW-1) is unreliable. iii. there was absolutely no motive nor any reason to show as to why the appellant would ask for any bribe in view of the fact that admittedly both Pawan Kumar and Vikram had already been arrested. iv. the evidence of shadow witness, PW-2 is unreliable. v. there are material contradictions in the evidence of witnesses of the prosecution with regard to where the money was kept after the same was received Crl.A.No.73/2001 Page 11 of 37 (back pocket or right side pocket) and contradictions as to the place of demand and extraction of bribe. vi. PW-6, Munni Devi, a material witness, did not support the case of the prosecution. vii. Vijay Kumar (the person who wrote the complaint); Malkhana Moharar; constable who took the sample bottle for examination; and S.I. Ranbir, have not been examined by the prosecution, and the same is fatal to the case of the prosecution. 16. The submissions of learned counsel for the respondent can be summarized as under: i. prosecution has been able to establish its case beyond any shadow of doubt. ii. appellant was caught red handed. iii. sanction was granted after due application of mind. iv. merely because the sanction was granted as per the draft order, that by itself cannot be a ground to raise the plea of non-application of mind. v. evidence of the trap laying officer (PW-8) is trustworthy and reliable and in fact that itself can be the sole ground for conviction. vi. non-examination of Malkhana Moharar cannot prove to be fatal to the case of the prosecution. 17. In the facts of this case, it is seen that the appellant herein was convicted by the learned trial Court Judge under section 7, 13(1)d read with section 13(2) of the Prevention of Corruption Act, 1988. Section 7 of the Prevention of Corruption Act reads as Crl.A.No.73/2001 Page 12 of 37 under: "7. Public servant taking gratification other than legal remuneration in respect of an official act.—Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of Section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine. Explanations.— (a) **** (b) ―Gratification.‖ The word ―gratification‖ is not restricted to pecuniary gratifications or to gratifications estimable in money. (c) ―Legal remuneration.‖ The words ―legal remuneration‖ are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government or the organisation, which he serves, to accept. (d) ―A motive or reward for doing.‖ A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression. (e) ****‖ Section 13 of the Prevention of Corruption Act reads as under: ―13. Criminal misconduct by a public servant.— (1) A public servant is said to commit the offence of criminal misconduct,— (a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or reward such as is mentioned in Section 7; or (b) ****; or (c) ****; or (d) if he,— (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (ii) by abusing his position as a public Crl.A.No.73/2001 Page 13 of 37 servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or (e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income. Explanation.—For the purposes of this section, ―known sources of income‖ means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant. (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine.‖ 18. The prosecution in support of its case examined ten (10) witnesses. The statement of the accused (appellant herein) was recorded under section 313 Cr.P.C., and one witness was examined by the defence. 19. Learned counsel for the appellant has strongly contended before me that the sanctioning authority did not apply its mind at the time of granting sanction. While submitting that PW-3 copied in verbatim the draft sanction order sent to it by the CBI, learned counsel has submitted that the sanctioning order is invalid in law. In the case of R. Sundarajan Vs. State, reported at (2006) 12 SCC 749, it was held: ―12. There is no dispute that the sanction order was passed by the competent authority. 13. Dr. A. Chelliah, learned counsel for the appellant, however, submitted that the sanction order was vitiated as there was no material on which it could have been passed. We do not agree. Crl.A.No.73/2001 Page 14 of 37 14. In this connection, it may be mentioned that we cannot look into the adequacy or inadequacy of the material before the sanctioning authority and we cannot sit as a court of appeal over the sanction order. The order granting sanction shows that all the available materials were placed before the sanctioning authority who considered the same in great detail. Only because some of the said materials could not be proved, the same by itself, in our opinion, would not vitiate the order of sanction. In fact in this case there was abundant material before the sanctioning authority, and hence we do not agree that the sanction order was in any way vitiated.‖ 20. Similarly in the case of C.S. Krishnamurthy Vs. State of Karnataka, reported at (2005) 4 SCC 81, the Apex Court held as under: ―7. This sanction order was proved by Mr V. Parthasarthy, Deputy General Manager of Bangalore Telecom as PW 40, he was competent authority to accord sanction and he accorded the sanction for prosecution of the accused for the alleged offence on 28-2-1990 as per Ext. P-83. He deposed that SP, CBI sent a report against the accused and he perused the report and accorded the sanction as per Ext. P-83. He deposed that he was satisfied that there was a case for prosecuting the accused for the alleged offence. He admitted that he received a draft sanction order and a draft sanction order was also examined by the Vigilance Cell and then it was put up before him. He also deposed that before according sanction he discussed the matter with the Vigilance Cell. He also admitted that he was not a law man, therefore, he discussed the legal implication with a legally qualified officer in the Vigilance Cell. He has denied the suggestion that he did not apply his mind in according sanction. It is