CR.A/526/1993 1/63 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 526 of 1993 For Approval and Signature: HONOURABLE MR.JUSTICE C.K.BUCH ========================================================= 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 ? ========================================================= AMRISHBHAI MANUBHAI BRAHMBHATT & 1 - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR AD SHAH for Appellant(s) : 1,1.2.2 - 2,2.2.1 MR AJ DESAI, ADDL. PUBLIC PROSECUTOR for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE C.K.BUCH Date : 10/05/2007 CAV JUDGMENT 1. Both the appellants-original accused Nos. 1 and 2 have been held guilty of the charge of offence punishable under Sections 7, 12, and 13(1)(d)(i) and CR.A/526/1993 2/63 JUDGMENT (ii) read with 13(2) of the Prevention of Corruption Act, 1988 (herein after referred to as the 'Act' or 'the PC Act'),by the ld. Special Judge, Ahmedabad in Special Case No.8/1990 vide judgment dated 22.03.1993. Both the accused, vide impugned judgment, are directed to undergo S.I. for period of 2 years and fine of Rs.1,000/- and to undergo in default punishment for a period of 2 months for the offence punishable under Section 7 of the PC Act. Both the accused are again asked to undergo S.I. for period of 2 years and to pay fine of Rs.500/- and to undergo in default S.I. for period of 2 months for the offence punishable under Section 12 of the Act. Both these accused have been imposed S.I. for period of 2 years and to pay fine of Rs.1,000/- and to undergo in default punishment of S.I. for the period of 2 months punishable under Section 13(2) of the PC Act. Though, both the accused were asked to undergo different punishment and to pay fine for all the three offences each, the Court ordered the substantive sentences to run concurrently. The Court has also passed some orders for muddamal articles at the conclusion of the trial in the order of conviction and sentence. The same has been assailed by present appeal preferred under Section 374 read with Section 376 of the Code CR.A/526/1993 3/63 JUDGMENT of Criminal Procedure. The original accused No.1 was, at relevant point of time, serving as senior Clerk at Octroi Checkpost, Odhav and accused No.2 was Junior Valuation Officer at the very Octroi checkpost. Both the accused have died pending this appeal. However, vide order dated 21st February, 2000 passed in Criminal Miscellaneous Application No.6480 of 1999 Amrishbhai Manubhai Brahmbhatt has been permitted to continue the present appellate proceedings as per scheme of Section 394 of the Code of Criminal Procedure. Death Certificate of deceased accused Manubhai was also produced. In the same way, son of original accused No.2, Dilipbhai Motibhai Patel is also permitted to continue the present appellate proceedings vide order dated 14.07.2005 as per orders passed by this Court in Misc. Criminal Application filed by him in that regard. 2. Mr.A.D.Shah, learned advocate for the appellants and learned APP Mr.A.J.Desai for the State have been heard at length. The trap incident is of 24th August, 1989 and the same was led by police with the help of complainant Dabhaibhai Kavabhai. The gist of the case of the prosecution is reflected in the charge framed by the Trial Court vide Exh.4. It is CR.A/526/1993 4/63 JUDGMENT alleged that on 24th August, 1989 at about 7.15 AM. when both the accused were on duty at Octroi Checkpost, Odhav, the complainant, Dabhaibhai Kavabhai came to the Octroi Checkpost with a Truck loaded with wood. At that time, accused demanded bribe / gratification for under-valuation of the goods and thereby determined less amount of Octroi payable than the actual that could have been recovered against the goods imported within the Octroi limits of Ahmedabad Municipal Corporation. The amount of demand is Rs.20/- for showing favour by indicating less value of the price of the goods that was loaded in the Truck and it was possible only, if both the accused have decided jointly and under a connivance. According to prosecution, the Police Officer of ACB had information about the Municipal Employee working at Octroi Checkpost, Odhav accepting gratification when the goods are being imported / brought within the city Octroi limit. 3. In view of this information, ACB Police Inspector, Mr.Solanki went at some distance from the Octroi Naka, Odhav prior to the time when the trap was carried out and stopped one truck bearing CR.A/526/1993 5/63 JUDGMENT registration No.GTY 6185 which was proceeding towards city of Ahmedabad. It was alleged that about 200 mounds of wood which is used in making furniture and 75 mounds of wood that can be used as fire wood was found in the truck. The complainant Dabhai Kavabhai and driver Muradmiya Irshadmiya were questioned by P.I. Mr.Solanki of ACB and the complainant informed Mr.Solanki that employees working at Octroi Checkpost, Odhav were charging / accepting gratification at the time of transporting / bringing goods within the limits of city of Ahmedabad. 4. Thereafter Mr.Solanki requested complainant Dabhai and asked him as to whether he would like to participate in the raid and as the complainant expressed his willingness, P.I.Mr.Solanki arranged for raid. 5. P.I. Mr.Solanki asked complainant to produce Rs.130/- which was to be given as illegal gratification and thereafter, anthracene powder was applied on all the currency notes of Rs.130/- in presence of complainant, panchas and members of raiding party demonstrating the test of anthracene powder and its effect and thereafter, the raiding CR.A/526/1993 6/63 JUDGMENT party was asked to proceed towards Octroi Checkpost, Odhav. It is the case of the prosecution that the complainant had started with his loaded truck on 23rd August, 1989 and had reached Village Kathlal at about 08.00 p.m. on 23rd August, 1989. They stayed overnight at Kathlal at the residence of the Truck owner Muktarbhai Kasambhai and thereafter, they started at about 05.00 a.m. in the morning with Driver Muradmiya Irshadmiya from Kathlal and when the Truck had reached the Kathlal cross road, P.I. Solanki had stopped his truck. Thereafter, at about 06.00 a.m. i.e. on 24th August, 1989 complainant and panch no.1 entered the Octroi Checkpost and met the accused No.1. The accused No.1 made inquiries about the nature of the goods carried in the Truck and its approximate weight. According to complainant, he had informed accused No.1 that it is wood weighing about 300 mounds and thereafter, the accused No.1 filled-in the some of the part of the receipt and directed the complainant to approach accused No.2-the Valuation Officer. It is alleged that the accused No.2 told the complainant that though, according to him, the wood is weighing about 300 mounds, he will not write the exact weight of the wood loaded in the Truck as otherwise the valuation would be high for Octroi CR.A/526/1993 7/63 JUDGMENT purpose and asked complainant that for that work he will have to come in terms with accused No.1 i.e. Senior Clerk. As the complainant was directed to contact accused No.1, the complainant approached accused No.1 and, at that time, accused No.1 told the complainant that he is preparing the receipt for only Rs.60/- but he will have to pay Rs.20/- more for doing so and thus the case of the prosecution is that accused No.1 called upon complainant to pay Rs.20/- as illegal gratification and accordingly, he prepared the receipt for the Octroi charges. It is further his say that the complainant took out the amount of Rs.80/- from the currency notes of Rs.130/- that were kept in his pocket and paid the same to accused No.1. The panch witness who was accompanying the complainant on payment of the amount, gave pre- arranged signal and the raid was carried out in a couple of minutes. It is alleged that accused No.1 was caught red-handed accepting illegal gratification and the amount was recovered with the assistance of second panch from accused No.1. After experiment of ultra-violet lamp and tallying of the currency notes with the number of notes mentioned in the first part of the panchnama, PI Mr. Solanki recorded the complaint of Dahyabhai Kavabhai. The CR.A/526/1993 8/63 JUDGMENT police after completing investigation, obtained sanction from the Competent Authority to prosecute the accused for the alleged offences and submitted chargesheet on 06.03.1990. The raiding party were satisfied about number of muddamal currency notes mentioned in the panchnama and also as to the presence of anthracene powder marks on the hands of the accused No.1 and also on the relevant document, namely, receipt book. The second part of the panchnama was drawn and P.I. Mr.Solanki also recorded the complaint of Dabhaibhai Kavabhai. On conclusion of the trial, learned Special Judge, vide impugned judgment, has held both the accused as guilty for the aforesaid offence. 6. The accused have been examined under Section 313 of Cr.P.C. and according to both the accused, they have been forcibly implicated. Both of them have denied the case of the prosecution about the alleged demand of Rs.20/- as bribe amount. It is the say of the accused that they have never attempted to under value the goods than their actual market value. According to accused No.1, he had demanded only Rs.60/- as Octroi charges and the complainant-accused himself took out a bunch of currency note of Rs.20/- CR.A/526/1993 9/63 JUDGMENT and had placed them on a table, he had issued receipt at Exh.12 and as such, there was no demand or acceptance of bribe by him. 7. Over and above, the defence of the accused No.2 is that his duty is to verify the valuation of the goods and on the basis of that, the valuation Octroi charges are required to be calculated at the counter and in accordance with the rate prescribed by the corporation and the payment is to be made before cashier. It is the say of the accused No.2 that when the bill of purchase was not produced, the party is called upon to fill in form 'F' and on that basis Octroi charges are assessed. The party is under obligation to produce a regular bill and upon production of such regular bill, the final amount of Octroi payable is determined. He had not served earlier at Odhav Octroi Naka and had joined duties at Odhav Octroi Naka approximately one and half months before the incident and he was not knowing accused No.2. The learned Trial Judge has not accepted the defence plea and has observed that both the accused have failed in rebutting the presumption raised. 8. According to Mr.A.D.Shah, learned advocate CR.A/526/1993 10/63 JUDGMENT for the appellants accused, the order of conviction and sentence is bad and illegal. The learned Trial Judge has ignored the basic principles of appreciation of evidence and as recorded finding on certain surmises. The ld. Trial Judge has also erred in reading some part of evidence which is there on record. In cases of bribe and running trap where the punter is asked to assist the Officer, who had actually received the information about the corrupt practice and activities, the Court should appreciate evidence from all possible angles including the scope of false implication of the accused persons because in such cases the trap officer is highly interested in the success of the trap and the complainants of such cases are put under pressure so that the falsity of the trap may not be exposed. In all running trap cases where there being no previous demand made by the accused which can be said to be specific, the Courts are asked to assume that the information received by the trap Officer is genuine. Accused No.1 of course was a public servant, but after all he was serving at an Octroi Checkpost and was supposed to accept the currency notes tendered to him in the nature of Octroi charges. In present case, Mr.Solanki had proceeded to assume that bribe amount is being CR.A/526/1993 11/63 JUDGMENT accepted at Odhav Octroi Naka and therefore, he was tempted to arrange the trap. P.I. Mr.Solanki had joined the office of P.I. ACB on 26th June, 1989 and had arranged the present trap on 24th August, 1989 after about 2 months and it has come on record that this was his first trap. It is obvious that failure of the Trap would be a matter of great shock or disappointment for Mr.Solanki and the learned Trial Judge ought to have evaluated the evidence and the defence plea simultaneously and keeping in mind all probabilities including one such probability i.e. innocence of the accused No.2. When the case of the prosecution is that Investigating Officer had information that 23rd August, 1989 that Officers of Odhav Octroi Naka were showing favour to such importers by demanding less amount of Octroi charges by not evaluating the goods brought within the Octroi Limits of Municipal Corporation and seeking the bribe amount, Mr. Solanki arranged the trap. So, evidence of Mr.Solanki ought to have been appreciated as evidence of a highly interested person. It is settled law that Investigating Officer who is in charge of arranging the trap is/are “trap witness and his evidence cannot be equated with an evidence of an independent witness not interested otherwise in the CR.A/526/1993 12/63 JUDGMENT result of the case”. For success of the trap Mr.Solanki sought assistance from the Office of the District Collector on 23rd, the employees were called as panch from District Collector Office had been to the Office of ACB P.I. Mr.Solanki and they had reached to the office of Mr.Solanki at about 12.30 a.m. i.e. immediately after midnight of 23rd. When it emerges that both the accused were there on duty during night hours and there is nothing on record to show that they had just taken over the charge of Octroi Check Post from the other employees, the learned Trial Judge ought to have thought why running trap could not be arranged immediately after 12.30 a.m. and why Mr.Solanki remained inactive till morning at 5.00 a.m. of 24th August, 1989, 9. According to Mr.Shah one vital document, namely, Import Bill Exh.11 has not been correctly appreciated. The wood of two different qualities were loaded in the Truck and the value was estimated at Rs.3000/-. It is the evidence of the complainant and even prosecution does not dispute this version of the complainant that after raid, the entire truck load of wood was taken to one Hinglaj Timber Mart, there the value of the goods was assessed as Rs.2975/-. Even as CR.A/526/1993 13/63 JUDGMENT per the case of the prosecution, the correct value of the goods was not more than Rs.3000/-. There was no scope for the accused in such a situation to raise demand against alleged facility as assessing less value of the goods entering into the city limit. It is neither the case nor it is evidence that during conversation the accused had insisted that though the value of the goods is about Rs.3,000/- they would put much higher value than the actual value and the complainant shall be compelled to pay higher amount of Octroi than actual leviable and for not doing so, and putting the correct value of the goods loaded in the Truck, the complainant should part with gratification. The document at Exh.11 has been relied on by the learned Trial Judge to link the accused with the crime but on the contrary, it was required to be observed that value shown of Rs.3,000/- in the document Exh.11 if read in reference to the ultimate value assessed by an independent trader / purchaser of the material, it destroys the case of the prosecution. There was no scope of showing any favour to pay the less Octroi and charge the bribe amount for showing such favour. 10. The next point pressed by Mr.Shah is that CR.A/526/1993 14/63 JUDGMENT rate of Octroi was 2% of the goods. This fact is an undisputed fact. On the contrary, it is the case of the prosecution that complainant was otherwise bound to pay Rs.60/- as Octroi against the value of Rs.3,000/- at the rate of 2%. Exh.12 shows that Rs.60/-was charged. The complainant was not carrying any document as to the value of the goods that was being carried in his truck. The complainant was under obligation to produce reliable documentary evidence about the value of the goods and on the strength of such documents for determining the Octroi charge actually leviable, Octroi charges was to be assessed and recovered after adjusting the amount paid on the strength of the value shown in format. This is not the case of permitting entry of goods being brought in within the said limits of “Pakka Bill” showing the correct value of the goods. The learned Trial Judge has not concentrated on this aspect. 11. The next point pressed by Mr.Shah is regarding defence of the accused and also case of the complainant who had placed currency notes on table at the time when accused No.1 was preparing Octroi receipt and as soon as the receipt was handed over to the complainant, agreed signal was given and raiding CR.A/526/1993 15/63 JUDGMENT party rushed into the Octroi check post and at that very moment, accused had picked up, innocently, the currency notes lying on the table for the purpose of counting. When it is the say of the prosecution that all notes were of Rs.20/- denomination, whether the notes put on by the complainant are three or four is the fact which the accused No.1 could have realised only on counting folded bunch of notes. Adding of one currency note would not make much difference in the thickness of bunch of currency notes. The placement of one more currency note was nothing but a surreptitious placement of a note of Rs.20/-. The panch witness had at first stage admitted in cross- examination that when Mr.Solanki entered Octroi check post along with the raiding party, the accused No.1 had currency notes in his hand and panch had taken the currency notes from the hand of the accused and had counted the same. When panch counted the currency notes whether they were Rs.60/- or Rs.80/- was again a question which requires appreciation afresh by this Court. 12. There is no case against the accused No.2 which is one of the main submissions of Mr.Shah. Accused No.2 even remotely had not demanded any CR.A/526/1993 16/63 JUDGMENT amount and was not even a party to the alleged demand. It is not the case of the prosecution that as a matter of course, accused persons were recovering Rs.20/-irrespective of genuineness of the value of the goods loaded in a vehicle or in case where “Paka Bill” is also with the Truck driver. Even in such a situation, the accused No.2 ought not to have been linked with the crime. Accused No.2 was a Valuation Officer and had authority to determine the value of the goods and on approximation of Rs.60/- is mentioned in the import bill at Exh.11. For the sake of argument, it is accepted that the value was assessed by the accused No.2 at Rs.3,000/- then his assumption of the value was found correct as mentioned earlier but the entire truck load was given to one Timber Mart located in nearby area of the check post at the value of Rs.2975/-. When the accused No.2 has not participated in any manner whatsoever even in pursuing the complainant to pay Rs.20/- more, then he could not have been connected with the offence punishable under Section 7,12 and 13(b) of the Act because all these three offences are substantive offence and as such, there was no clear charge against accused No.2 of abetment. Neither there is any conviction nor conviction has been CR.A/526/1993 17/63 JUDGMENT recorded against accused No.2 for abeting accused No.1. The concept of “conclusive establishment of the charge” was imposed by the learned Trial Judge in present case is in nutshell the submission of Mr.Shah in general and in reference to accused No.2 in particular. The accused are not supposed to prove the defence plea beyond doubt is the settled legal position and accepted principles of great jurisprudence. The accused are supposed to show the probability acceptable to a reasonable and prudent man. When the say of the accused No.1 before the Court is that complainant placed four currency notes instead of three notes and therefore, he had accepted the amount and was counting the same, the raiding party caught him then why this explanation should not be accepted as a probable explanation. The explanation should appear to be probable one. Accused No.1 was otherwise entitled to accept the currency notes being a only person present. He had prepared the receipt and it was given to the complainant. When this receipt was prepared is again a matter of evaluation but the accused No.1 could have been given benefit of doubt. 13. One more technical submission made by CR.A/526/1993 18/63 JUDGMENT Mr.Shah is that test of anthracene powder mark does not conclusively establish the acceptance of bribe amount of Rs.20/- because the complainant was supposed to pay Rs.60/- to the accused. The complainant while taking out currency notes smeared with anthracene powder from the payable amount of Rs.130/- the accused No.1 may have given no contact to the currency notes, but while handing over the receipt to the complainant and lifting the currency notes placed on table may have given contact. The act of accused No.1 in not taking currency notes before issuing the receipt exhibits, the innocence of the accused. The accused No.1 had picked up the currency notes placed and at that very moment he was caught. Therefore, only at one place in the case on record, the panch had taken these currency notes from the hands of accused No.1. 14. Mr.Shah seriously assailed and commented on the evidence of the Investigating Officer. Prosecution has examined three witnesses to bring home the charge viz. P.W. 1 complainant and P.W. 2 panch who was with the complainant and has witnessed the alleged transaction and the Investigating Officer. The evidence of Investigating Officer shows CR.A/526/1993 19/63 JUDGMENT that he himself called the person complainant and he solicited and acquired service of complainant as punter. Mr.Solanki has himself investigated the crime even after carrying out raid. So in present case, the complainant, the Trap Officer and the Investigating Officer is one and the same person. In present case, the Investigation Officer is the person who will be interested in the case but he is a person successively involved in the success of the raid as it was his first trap after taking over as PI ACB. It is not the say of Mr.Solanki that he had received the information against the employees serving at Octroi Checkpost, Odhav only but it appears that the information was general but Mr.Solanki selected Odhav Checkpost where practically there was no frequency of vehicle bringing Octroi leviable goods and the receipt book is before the Court as Muddamal article and Mr.Solanki has tried to point out that limited vehicles were entering and there was no reasonable time gap between two vehicles bringing Octroi leviable goods. The time gap between calling two panchas and their arrival and also the time gap between approval of this two panchas and in the office ACB an actual first part of the panchnama drafted makes prosecution case suspicious. Mr.Solanki CR.A/526/1993 20/63 JUDGMENT appears to have arranged for a person who can remain amicable to him. Merely because the complainant was bringing goods through Octroi, Odhav Naka and he used to pay some additional amount to get rid of any type of harassment from the person on duty would not add anything to the strength