Criminal Appeal No.915- SB of 2007. -1- In the High Court of Punjab and Haryana at Chandigarh. Criminal Appeal No.915-SB of 2007. Date of decision:25-5-2009 Jaswant Singh. ...Appellant. Versus C.B.I. ...Respondent. ... Coram: Hon'ble Mr. Justice K. C. Puri. ... Present: Mr. P.S. Hundal, Senior Advocate with Mr. Dinesh Trehan, Advocate for the appellant. Mr. Ajay Kaushik, Advocate for the CBI. ... K. C. Puri, J. Judgment. The appellant has preferred this appeal against the judgment/order dated 27.4.2007 passed by Shri Jagdeep Jain, Special Judge, CBI Court, Chandigarh whereby he has been convicted and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.5,000/- under Section 7 of the Criminal Appeal No.915- SB of 2007. -2- Prevention of Corruption Act (in short the Act). In default of payment of fine, he has been ordered to undergo further rigorous imprisonment for three months. The appellant has further been sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.5,000/- under Section 13(2) read with Section 13(1)(d) of the Act. In default of payment of fine, he has been ordered to undergo further rigorous imprisonment for three months. Both the sentences have been ordered to run concurrently. The period already undergone by the appellant in custody has been ordered to be set off against the term award. The abstract of the prosecution case is as under:- On 28.7.2005, at about 3-00 P.M, motor cycle No.CH- 03Q-4328 driven by Rajesh Kumar Verma, an Electrician working in Tilak Tent House met with an accident with a scooter driven by Vivek Kumar Thakur, Advocate near the small Chowk of Sector 3/10, Chandigarh. SI Jaswant Singh, accused arrived at the spot and took both of them to Police Station. From there, he allowed the Advocate to take the scooter away but retained the motor-cycle, documents and keys and stated that the motor-cycle would be Criminal Appeal No.915- SB of 2007. -3- released if Rajesh, paid Rs.5,000/- as illegal gratification. Otherwise, he would register a case against him. Thereafter Rajesh visited him a number of occasions but he relented only qua the quantum of bribe by reducing it to Rs.2,000/-. On 3.8.2005, Rajesh Kumar filed complaint with the CBI. The case was registered and it was decided to lay a trap. It is further alleged by the prosecution that the services of Ramesh Chander and Jasmer Singh, Inspectors, Central Excise were requisitioned as independent witnesses. Pre-trap proceedings were conducted in the office of Karnail Singh, DSP. The complainant was introduced to all the members of the trap party and the independent witnesses. The contents of the complaint were explained to all of them. The complainant produced four currency notes of Rs.500/- denomination each. After giving demonstration to explain the reaction of Sodium Carbonate and Phenolphthalein (in short “P” Powder), the serial numbers of the currency notes were noted in pre-trap memo and the notes were treated with “P” Powder. The notes so treated were put in the left side pocket of the complainant with instructions not to touch them until the same were handed over to the accused on his demand or any other person on his specific direction. He was also directed not to shake Criminal Appeal No.915- SB of 2007. -4- hands with the accused. Ramesh Chander was directed to accompany the complainant, to over-hear the conversation and to observe entire transaction and then to give signal by putting his hands over his head immediately on the passing over of the bribe money. The members of the trap party and Jasmer Singh were asked to remain in close proximity of the complainant, as far as possible. It is further the prosecution case that at about 4.45 P.M, the trap party alongwith the complainant and independent witnesses reached Police Station, Sector 3, Chandigarh. The complainant and the shadow witness entered the premises of Police Station. The members of the trap party and Jasmer Singh took positions outside in a scattered manner. The complainant and Ramesh Chander entered the room of the accused. The complainant greeted him with 'Namaste'. The accused asked him as to who the person accompanying him was?. The complainant replied that he was the financier of the motor-cycle and had come to take the motor-cycle. The complainant replied that as per demand, he had brought Rs.2,000/-. The accused aksed for money. After accepting the same, he counted and then put the notes in the upper drawer of his table. He handed over the documents and the Criminal Appeal No.915- SB of 2007. -5- keys of the motor-cycle to the complainant. Meanwhile, the shadow witness had given the signal. On receiving the signal, the trap team rushed inside the Police Station. M.K.Puri, Inspector disclosed his identity. Immediately, the accused was caught from his both wrists by Balbir Singh, Inspector and Gaurav Singh, Sub Inspector. The complainant, who was sitting in front of the accused, stated that the accused had demanded and accepted bribe of Rs.2,000/- from him and after accepting the same, he had kept the currency notes in the upper drawer of his office table. When asked, the accused initially became perplexed but later admitted. It is further alleged by the prosecution that solution of Sodium Carbonate was prepared in clean glass tumbler. The accused was asked to dip his right hand fingers in the solution. On his doing so, the colour of the solution turned pink. The solution was transferred to a clean quarter bottle and a slip of paper was pasted thereon. It was marked as 'RHWI' denoting the right hand wash. Fresh solution of Sodium Carbonate was prepared in a separate clean glass tumbler. The accused was aksed to dip his left hand fingers in the said solution. On his doing so, the colour of the solution turned pink. The solution was transferred to clean quarter bottle and a slip of paper was pasted thereon. It was marked as Criminal Appeal No.915- SB of 2007. -6- 'LHWII' denoting the left hand wash. The signatures of both the independent witnesses were taken on the paper slips pasted on the bottles. The bottles were sealed. On being directed, Jasmer Singh recovered treated currency notes from the upper drawer of the office table. He, with the help of Ramesh Chander, compared the numbers of the recovered currency notes with those mentioned in the pre-trap memo and found them matching. The notes were put in an envelope and the same was sealed. The accused was asked about the motor-cycle. He led the trap party and the independent witnesses to the place in the Police Station where the motor-cycle was parked. It was taken into possession. The registration certificate and the keys were taken into possession from the complainant. The DDR of Police Station, Sector 3, Chandigarh with effect from 23.7.2005 to 30.7.2005 was taken into possession. The accused was formally arrested at about 7.30 PM. The impressions of the seal used during trap proceedings were taken on three paper sheets and one piece of white cloth. Besides that the impressions of the seal were also affixed on each sheet of post trap memo. Criminal Appeal No.915- SB of 2007. -7- A rough sketch showing the position of trap party members, complainant and the shadow witness was prepared. The seal used during the proceedings was handed over to Ramesh Chander. A team was sent to conduct the search of the residential premises of the accused under the leadership of R.S.Gunjiyal. The proceedings were concluded at about 8-00 P.M. when post trap memo was prepared. The sealed quarter bottles containing hand wash were sent to the CFSL for chemical analysis. Vide its report dated 24.9.2005, the CFSL gave positive opinion as to the presence of “P” Powder. On conclusion of investigation and after receiving the requisite sanction for prosecution of accused Jaswant Singh, charge sheet was filed. The accused appeared and was supplied copies of the charge sheet along with the accompanying documents in compliance with the provisions of Section 207 Cr.P.C. Finding prima facie case, charges under Sections 7 and 13(2) read with Section 13(1)(d) of the Act were framed against the accused. He pleaded not guilty and claimed trial. Criminal Appeal No.915- SB of 2007. -8- In order to prove its case, the prosecution examined PW-1 Gaurav Yadav, SSP, PW-2 Rajesh Kumar, complainant, PW-3 Ramesh Chander, PW-4 Jasmer Singh, PW-5 Vivek Kumar Thakur, Advocate, PW-6 M. K. Puri, PW-7 SHO Balhar Singh and PW-8 Balbir Singh. When confronted with the incriminating evidence, the accused pleaded innocence and stated that he has been falsely implicated. The complainant and another boy had come to get the matter settled with the Advocate. They shook hands with him. The Advocate was given message to attend the complainant in his office in Sector 15 where he was working as Junior. According to the accused, he left the room thereafter to meet the SHO and the other officials leaving the complainant and that boy there and when he was returning to his room, the CBI team manhandled him. He stated that the officials of the Police Station were rebuked by the CBI Officer and he was made to set aside. In the end, he stated that he was Punjabi speaking and could not speak Hindi. In his defence, the accused examined DW-1Ram Krishan, the then Manager of Tilak Tent House, DW-2 Constable Jasbir Singh, DW-3 Jasbir Singh Dadwal, Advocate, District Courts, Chandigarh and DW-4 Ranjit Singh, a mechanic. Criminal Appeal No.915- SB of 2007. -9- After the conclusion of trial, the accused was convicted and sentenced, as already mentioned in the earlier part of the judgment. Feeling aggrieved against the said impugned judgment, the accused has filed the instant appeal. The learned counsel for the appellant has submitted that for proving the offence under the Act against the appellant, the prosecution is required to establish the following basic ingredients:- (a) That there was a demand of illegal gratification by a public servant; (b) That there was acceptance of illegal gratification by a public servant and © That the recovery of tainted currency notes has taken place from the possession of public servant. It is contended that none of the above-said ingredients has been proved by the prosecution and that the appellant has been wrongly convicted by the trial Court. It was only Rajesh Kumar complainant who could have proved demand, acceptance and recovery of illegal gratification. Rajesh Kumar has not supported the case of the prosecution in spite of being declared hostile. There Criminal Appeal No.915- SB of 2007. -10- was no independent corroboration of the testimony of complainant Rajesh Kumar. PW-3 Ramesh Kumar, Inspector, Custom Central Excise, is an official witness and he cannot be said to be an independent by any stretch of imagination. PW-3 Ramesh Kumar has admitted the fact that when the complainant went to the office of the accused, at that time, the accused left the office and returned after half an hour. There was ample opportunity for the complainant and the shadow witness to place the currency notes in the drawer of the table of the complainant. PW-4 Jasmer Singh Walia, is also an Inspector in the Custom Central Excise Department and he being an official witness is interested in the success of the raid. So far as hand wash is concerned, the learned counsel for the appellant has submitted that the prosecution witnesses have themselves admitted that the accused was caught from both his wrists. So, the hand wash could have proved positive as there was a possibility that the person who caught hold of the accused by wrists might have “P” Powder in his hands.The factum of hand wash is also not corroborated by any independent witness. Only, the official witnesses and the Investigating Officer have supported the case, in this regard. DSP Karnail Singh was present in the Criminal Appeal No.915- SB of 2007. -11- office when allegedly complainant went to the office of CBI but he has not joined the raid. The learned counsel for the appellant has relied upon the following authorities:- (a) Dalip Singh Versus State of Punjab, 1988(1) R.C.R (Criminal) 123 and (b) Anand Parkash Versus State of Haryana,2008 (2) RCR (Crl.) 335. © Judgment dated 16.5.2007 of this Court in Criminal Appeal No.1295-SB of 2005, titled Mohan Singh Versus State of Punjab. The learned State counsel has supported the judgment of the learned trial Court. I have carefully considered the submissions made by both sides and have gone through the record of the case. So far as the submission made by the counsel for the appellant that since the complainant has not supported the case of the prosecution and, on that count, demand of illegal gratification is not proved is concerned, the same looks attractive but is without any force. The prosecution has proved an application submitted by Rajesh Kumar to the CBI authorities, Exhibit PW2/2, wherein it is Criminal Appeal No.915- SB of 2007. -12- categorically mentioned that SI Jaswant Singh has illegally kept the motor-cycle belonging to him and was not releasing the same and further he has mentioned in Exhibit PW2/2 that SI Jaswant Singh has demanded illegal gratification of Rs.2,000/-, failing which a case would be registered against him. The complainant has also produced driving licence, Exhibit PW2/1 to the CBI authorities. So, the above-said argument is without any substance. Had there been no demand, the complainant would not have approached the CBI authorities. The very fact that the motor-cycle was found in the Police Station where the accused was working further lends support to the prosecution version. How motor-cycle came in the Police Station is not explained by the accused. The submission of learned counsel for the appellant that Ramesh Chander, Inspector is an official of the Custom Central Excise Department and is not an independent witness also cannot be accepted. The accused has, no where, even alleged any reason as to why the complainant, shadow witness and the Investigating Officer are appearing against him. There was no motive for the CBI authorities to falsely implicate the accused. Even a suggestion, in this regard, has not been given. PW-3 Ramesh Chander, Inspector in the Custom Central Excise Department who acted as a Criminal Appeal No.915- SB of 2007. -13- shadow witness, PW-4 Jasmer Singh, Inspector, Custom Central Excise Department and the Investigating Officer have fully supported the prosecution case on all the material particulars. It cannot be believed that a premier agency like CBI would involve an officer of Police Department of Chandigarh Administration falsely without any rhyme or reason. The hand wash of the accused proves the factum of handling the currency notes by the accused. Mere fact that currency notes were recovered from the drawer does not lead to the conclusion that the accused has not accepted illegal gratification. The testimony of Ramesh Chander is natural. It took sufficient time to complete the raid as the accused had gone outside for half an hour, as stated by PW-3 Ramesh Kumar. It cannot be believed that Ramesh Chander would be a party for planting the amount of illegal gratification upon the accused. The prosecution witnesses have stated that the accused was caught from the wrists. So, by holding the accused from the wrists, it is not possible that “P” Powder would touch the hands of the accused. Mere fact that DSP Karnail Singh has not conducted the raid does not create any doubt in the prosecution version. It is not argued by the learned counsel for the appellant that M.K.Puri, was Criminal Appeal No.915- SB of 2007. -14- not competent to conduct a raid. It is not mandatory that only DSP or S.P of CBI can conduct a raid. The investigation was marked to M.K.Puri. He joined two Inspectors of Custom Department i.e. PW-3 Ramesh Chander and PW-4 Jasmer Singh. So, the appellant has failed to create any doubt in the prosecution version. \ Authority in case Dalip Singh (supra), is distinguishable as in that case, the Superintendent of the office who joined the raid was not cited even as a prosecution witness. The work, which was stated to be the motive, had already been done in that case. So, the said authority does not apply to the facts of this case. Authority in Anand Parkash's case (supra), is also distinguishable as in that case there was no witness of demand of bribe except the complainant. In the present case, PW-3 Ramesh Chander has also supported the case of the prosecution and has stated that he and the complainant went to the office of the accused and the accused asked them, whether they have brought the agreed amount of illegal gratification. So, the factum of demand is also proved by Ramesh Chander. Therefore, the appellant cannot derive any benefit from the authority in case Anand Parkash (supra). Decision of this Court dated 16.5.2007,in Criminal Criminal Appeal No.915- SB of 2007. -15- Appeal No.1295-SB of 2005, also does not help the appellant as in that case, the complainant had enmity with the accused and it was the complainant who had forcibly put illegal gratification in the pocket of the accused. There is no such factum, in the present case. So far as quantum of sentence is concerned, the punishment awarded to the appellant by the trial Court cannot be said to be excessive, in any manner, as only rigorous imprisonment for one year has been awarded, besides payment of fine of Rs.5,000/-. In view of the above discussion, no ground for interference is made out. Consequently, the conviction recorded by the trial Court stands confirmed and the appeal stands dismissed being without any merit. A copy of this judgment be sent to the trial Court for strict compliance. May 25th ,2009. (K. C. Puri ) Jaggi Judge