IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 573 of 1987 For Approval and Signature: Hon'ble MR.JUSTICE D.P.BUCH ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- RATILAL GOVINDJI NAYAK Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 573 of 1987 MR AD SHAH for Petitioner No. 1 Mr S J Dave, APP for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE D.P.BUCH Date of decision: 24/03/2003 ORAL JUDGEMENT This is an appeal under section 374 of the Code of Criminal Procedure, 1973 (for short, 'Code') in order to challenge the judgment and conviction order dated 20.7.1987 in Special Case No.2 of 1983 under which the learned Special Judge, Surat convicted the present appellant for offence punishable under section 5(2) of the Prevention of Corruption Act, 1947 and sentenced him to suffer R.I. for three months. The trial court also directed the appellant to pay fine of Rupees two hundred. In default of payment of fine, the appellant was directed to undergo further R.I. for 15 days. The appellant was also convicted for an offence punishable under section 161 of Indian Penal Code. However, no separate sentence was imposed on him for that offence. 2. The facts of the case of the prosecution before the trial court may be briefly stated as follows: In September, 1981, the present appellant was functioning as Talati-cum-Mantri, Group Gram Panchayat in Palsana Taluka of Surat District and as such he was a public servant. The informant had filed a FIR before the concerned police station on 22.9.1981. It seems that about 3-4 months prior to the date of filing of FIR, the informant Dayaram Zaverbhai Mistry was required to have mutation of entries of agricultural land in his name on the basis of a will executed by his father. It seems that the said informant approached the appellant for the said purpose and, therefore, the appellant prepared certain notices and other documents and handed over the same to the said informant. Thereafter, the petitioner also required certified copies of the mutation entries made in his name. The informant approached the appellant and at that time, the appellant told him that the will did not contain the signature of the father of the informant and the informant was, therefore, required to spend some amount for the said mutation purpose. On enquiry, the appellant made it clear that the informant would be required to pay a sum of Rs. 400/- for making entry and Rs.100/- for supplying copies of Village form VII - VII A, XII etc. Therefore, the appellant in all demanded Rs.500/from the informant. At that stage, the informant told him that he did not have money with him and, therefore, he would pay the same afterwards. This episode took place, according to the case of the prosecution, on 22.9.1981. Thereafter the informant, according to the case of the prosecution, consulted his friends and he was given to understand that if money was not paid, the work would not be done and since the informant was a resident of U.K., it would not be possible for the informant to again come to India for the said purpose. Ultimately, the informant approached the Police Inspector of Anti Corruption Bureau and filed his FIR which was reduced into writing and the informant was told to come to the ACB office on the next morning. Accordingly the informant went to the said office on 23.9.1981. The ACB Police Officer had already invited two persons as panchas from the office of the Sales Tax Commissioner. They were introduced to the informant and the informant was introduced to the panchas. 3. At the instance of the police officer, the informant had given details of his grievance to the panchas in a brief manner and then the FIR filed by the informant was also read over to the panchas and their signatures were obtained thereon. Thereafter, Police Sub-Inspector Puwar brought anthracene powder and explained ultra violet lamp and showed experiment with respect to the use of ultra violet lamp and anthracene powder and the characteristics thereof. Thereafter, the informant supplied currency notes of Rs.500/- (Five notes of Rs.100/- each). Anthracene powder was applied on those currency notes and when they were seen under the ultraviolet lamp, it was noticed that light blue fluorescence was visible on those notes. Thereafter, the said currency notes were placed in the upper pocket of the T-shirt of the informant and he was told not to touch them till the demand was made by the appellant. The first panch was told to accompany the informant and witness what may happen in his presence. Preliminary panchnama was drawn and thereafter two panchas, informant and the police officers and other police personnel started to go to the office of the appellant. They reached the said office and the informant and panch no.1 were required to enter the office of the appellant whereas panch no.2 and the Police Inspector and other police personnel occupied their position outside the office. 4. Prosecution has further alleged that when the informant and the panch entered the office of the appellant, the appellant inquired from the informant about the aforesaid transaction. The informant took out the currency notes from the upper pocket of the T-shirt and handed over the same to the appellant. The appellant accepted the said amount and placed it under the papers on his table. Those papers were again placed on the currency notes and paper weight was also placed thereon. AT that time, signal was given to the raiding party and, therefore, the Police Inspector and the raiding party entered the said office of the appellant. 5. There also further process was undertaken. Ultraviolet lamp experiment was demonstrated, the three fingers and thumb of right hand of the appellant were found showing the presence of anthracene power. Similarly presence of anthracene power was visible on the right hand of the informant and on his pocket. Search was carried out and the aforesaid currency notes were seized. The presence of anthracene was noticed thereon also. Other relevant documents were also seized and at the end of the said process, the Investigating Police Officer concluded the panchnama. Thereafter statements of witnesses were recorded and at the end of the investigation, charge sheet was filed against the present appellant for the aforesaid offence. The appellant was enlarged on bail. He was supplied with copies of police investigation papers. Charge was framed, it was read over and explained to the appellant. The appellant pleaded not guilty to the said charge. Therefore, evidence was recorded. At the end of the trial, the trial court recorded further statement of the appellant under section 313 of the Code and after hearing the arguments, the trial court found the appellant guilty for the aforesaid offence. After hearing the appellant and his advocate on the point of quantum of punishment, the learned trial Judge imposed the punishment on the appellant as aforesaid. 6. Feeling aggrieved by the said judgment and conviction order of the trial court, the appellant has preferred this appeal before this court. It has been mainly contended before this court that the Police Sub-Inspector Puwar was not examined as a witness before the trial court though he was mainly responsible for demonstrating the effect of anthracene powder and ultra violet lamp at the office of the ACB. That though the Supreme Court has laid down since long that in such traps the ACB should use phenolphthalein powder and sodium carbonate solution, the I.O. in the present case has used anthracene powder and ultra violet lamp. That the entries were already made and the copies were ready before the incident in question and, therefore, it is not probable that the appellant would demand money and the informant would part with the said money in favour of the appellant. That the Investigating Officer was also a member of the raiding party and, therefore, he could not have undertaken the investigation and he ought to have entrusted the same to another officer. That the trial court has not properly appreciated the evidence on record and, therefore, there is serious error on the part of the trial court in convicting the appellant. That on the whole, the judgment and conviction order of the trial court are erroneous and illegal and deserve to be set aside. It is, therefore, prayed that the present appeal be allowed, the judgment and conviction order of the trial court be set aside and the appellant be acquitted of the offence in question. 7. On receiving the appeal, it was admitted and the appellant was enlarged on bail. Thereafter the matter came up for final hearing. On behalf of the appellant, Mr A D Shah, learned Advocate has advanced his arguments. On the other hand, Mr S J Dave, learned APP has advanced arguments on behalf of the respondent State. Both of them have taken me through the entire evidence and the relevant portions of the judgment of the trial court. In fact, learned advocate for the appellant has read the entire evidence of all the witnesses on record in order to substantiate his argument on the aforesaid counts. 8. Now if we look to the evidence on record, it is very clear that the trial court had examined certain witnesses. PW 1 Dayaram Zaverbhai Mistry, Exh.12 is the first witness who is also the informant. He has deposed that by the end of 1980, he had come from U.K. to India. That he was staying at village Kadodara at a distance of 1 k.m. from village Chalthan, which is adjacent to the land which stood in the name of his father. His father had executed a Will in his favour and, therefore, he wanted to get the said land mutated in his name and, therefore, he had approached the appellant, herein, i.e. the Talati-cum-Mantri at the relevant point of time. That he had also handed over the Will of his father to the appellant in order to show that he was the owner of the land in question. It is also deposed by him that the appellant demanded a sum of Rs.400/- and Rs.100/- for carrying out the process and for supplying copies to the informant. That he said that he did not have money with him and, therefore, he had agreed to come again on the next day. He has further deposed that he, thereafter, consulted certain people in the village and thereafter approached the ACB office and contacted the P.I. Mr Bunneth. That he had given details of the aforesaid episode and on hearing him, the P.I. enquired as to whether he wanted to file FIR and when he said yes, the P.I. recorded FIR as per his instructions. That thereafter he signed it and the P.I. had told him to come on the next morning with an amount of Rs.500/-. That accordingly, he again approached the said office in the morning hours on 23.9.1981 i.e. on the next day of recording of FIR and that he had gone there with currency notes of Rupees five hundred. That two panchas were brought to the office and he was introduced to the panchas. That thereafter P.S.I. Puwar was also invited there and he (the witness) produced the aforesaid currency notes of five hundred in presence of P.I., Mr Puwar and panchas. That PSI Mr Puwar informed them about the characteristics of anthracene powder and ultraviolet lamp and then experiment was demonstrated to them. That thereafter anthracene powder was applied to the said currency notes and on seeing those currency notes under the ultra violet lamp, light blue fluorescent colour was visible on these notes. That thereafter the said currency notes were placed in the upper pocket of his T-shirt and the extra powder, the paper, cotton etc. used for this purpose were destroyed. It is also deposed by him that he was told not to touch the said currency notes till demanded by the appellant. That panchnama was prepared and signatures were obtained. That even in the panchnama, numbers of the currency notes were recorded. 9. He has also deposed that thereafter, the raiding party proceeded towards the office of the appellant. That the first panch accompanied him and panch no.2 stayed with the raiding party outside the office but around it. Thereafter the informant and the first panch entered the office of the appellant. The appellant asked them to sit and as soon as they occupied their position, the appellant enquired about the demand. Therefore, he took out the said currency notes and handed them over to the appellant. The appellant accepted the same and placed it under the papers lying on his table and then again placed those papers on those currency notes and also placed paper weight thereon. Thereafter, signal was shown and the raiding party entered the said office of the appellant, the currency notes were seized from the said place and thereafter, panchnama was prepared and signatures of panchas were obtained. This is the evidence of those witness. 10. The witness has been cross examined at length. An attempt was made, during the cross-examination to show that before 23.9.1981, entries were posted and they were ready for being supplied to the informant. The witness has not accepted the said suggestion. 11. Then, the said evidence got support from the evidence of his own FIR which has been produced by him at Exh.16. In support of the said evidence, the prosecution also examined PW 2 Dalpatbhai Chauhan, Exh.21. This witness was serving as Sales Tax Inspector. He was invited as panch and according to him, he had gone to the office of the ACB on 23.9.1981. That the panchas and the informant were introduced to one another and FIR was read over to them and their signatures were obtained. That, the experiment of anthracene powder and ultraviolet lamp was demonstrated. He has also deposed that the informant produced currency notes of five hundred, anthracene powder was applied to these currency notes and thereafter they were placed in the upper pocket of the T-shirt of the informant. Preliminary panchnama was drawn and then the raiding party proceeded to the office of the appellant. He has, further, deposed that he and the informant both had entered the office of the appellant. That the appellant supplied copies of the village Form Nos. VII-VII-A-XII to the informant and that the appellant enquired from the informant as to whether he had brought the money as per the discussion taken place earlier, at which the informant had agreed that he had brought it. That thereafter, the informant took out the said currency notes from his pocket and handed them over to the appellant, which were accepted by the appellant and he placed the same on the table under the papers. He also deposed that thereafter signal was given and the raiding party entered the said office and currency notes were seized from the said place. He has also deposed as to how further procedure with anthracene powder and ultraviolet lamp was carried out on the currency notes, on the hands of the informant and the appellant etc. Therefore, according to the case of the prosecution, this panch witness has fully supported the case of the informant. Then there is the evidence of Panchnama at Exh.22 which also supports the case of the prosecution and the evidence of the informant and the panch witness. The said evidence is further supported by the evidence of PW 3, Padamsingh at Exh.23. His evidence also supports the evidence of the informant and the panch witness and it is further supported the panchnama also. This is the state of affairs so far as the oral evidence is concerned. 11. Even if we agree that demand, acceptance and recovery of bribe amount are the three important ingredients in trap cases, then we find in the case on hands as follows: (i) The fact of initial demand has been proved through the evidence of the informant-PW.1, Exh.12. (ii) It is supported by his FIR Exh.12 (iii) It is further supported by the conduct of the informant inasmuch as he informed the police and filed his FIR. Then he again went there with bribe money. Then he approached the appellant on the trap day. (iv) This fact of initial demand gets further support from the evidence of the informant that on the trap day, when he, in the company of the first panch met the appellant the appellant inquired from him if he had brought bribe money. On this point, even the first panch has supported the evidence of the informant. (v) As regards the demand of bribe money on the date of the trap, there is evidence of the informant, the first panch, the FIR and panchnama. (vi) The evidence of consequent recovery of bribe money further supports the case and evidence of pre-trap demand and trap day demand. (vii) The evidence of acceptance can be gathered from the evidence of informant, first hand, FIR and panchnama. (viii) The evidence of recovery of bribe money further supports the case and evidence of demand and acceptance. (ix) The fact of recovery of bribe money is proved on records through the evidence of the informant, first panchas, I.O., FIR, panchnama, presence of anthracene powder on the marked currency notes on the person of the informant, on the person of the appellant, on the paper under which the powder marked notes were placed and on the table cloth on which they were kept. (x) The evidence that the required and relevant copies of revenue records were kept ready for delivery on the trap day and the evidence that they contained the date of trap day lends additional support to the case and evidence of demand, acceptance and recovery of bribe money. 12. An attempt was made to show that the first panch was known to the informant and they were found moving together. This attempt and effort has met with a failure as there is absolutely no material on records to show or to suggest or to prove the said defence. The I.O. had simply addressed a letter to the officer of the first panch and the said officer told this first panch to go to the office of the ACB. There is no material to show that the panchas were known to the I.O. or to the informant or that the I.O. had selected them as panch. 13. It has also been argued that the informant was required to pay taxes to the panchayat. That the appellant had prepared receipt but the informant did not have Indian currency and therefore, there was some oral exchange of words between the informant and the appellant and, therefore, the informant had arranged for the trap. Even the Sarpanch has deposed, as defence, witness that he had intervened and hence the matter was settled between the two. The informant had no reason then to file a false FIR. 14. The appellant has nowhere explained the presence of anthracene powder on the tips of his fingers and thumb as well as on the paper and table cloth lying on his table. He has also not explained the presence of currency notes of Rs.500/- on his table. He has not explained the presence of powder on those currency notes. Had it been the case of planting of the currency notes, then the presence of powder on his fingers and thumb could not be there. 15. Again, he has rendered no explanation as to why he had kept certified copies ready on the trap day and as to why they contained that date and as to why he neither kept them ready nor did he hand them over to the informant before the date of trap. He has also not explained as to why he did not inform the informant before the trap day, that the relevant entries were made and certified and the informant could get those copies at any point of time. 16. Now, learned Advocate for the appellant has argued at length before this court that the evidence of the witnesses is highly improbable and not acceptable. Learned advocate for the appellant has also argued that if the currency notes were lying on the table within the knowledge of the informant and the first panch, then there was no necessity for the Investigating Police Officer to carry out personal search of the appellant. That the very fact that the personal search of the appellant was first carried out by the Investigating Officer clearly suggests that none was aware as to whether the said currency notes were lying on the table. It is also his argument that the personal search of the appellant was carried out under the pretext that the appellant was possessing the currency notes on his person. 17. Now the evidence on record discloses that the P.I. did not enquire at the first instance, as to where the currency notes were. It is also not on record that the first panch and the informant had conveyed it to the Investigating Officer that the currency notes were lying on the table under certain papers. It, therefore, appears that the I.O. was not aware at that time that the currency notes were lying on the table. It may be for this reason that the I.O. conducted personal search of the appellant at the first instance. Simply because the personal search of the appellant was undertaken at the first instance, it does not go to show or suggest that even the informant and the first panch were not aware as to whether the currency notes were lying. 18. It is then contended that though the paper weight was lifted by the appellant, according to the case of prosecution, the said paper weight was not examined under ultra violet lamp in order to find out the presence or otherwise of anthracene powder thereon. It seems that it is nobody's case that the appellant had lifted the said paper weight by using his right hand. It is also nobody's case that the appellant had used his right hand for again placing the said paper weight on those papers. Therefore, when the witnesses have not deposed and when it is not recorded in panchnama that the appellant had used his right hand for touching the paper weight, then there was no reason for the I.O. to examine the paper weight under the ultra violet lamp. It is moreso, when there is no evidence on records to show that the left hand of the appellant had come in contact of the powdered currency notes. 19. It is because of the aforesaid witness supported by the informant that the right hand of the appellant was examined under the ultra violet lamp and the anthracene powder presence was noticed on three fingers and thumb of his right hand. 20. On this aspect of the case, it has been argued that when a particular person receives a particular amount, normally he would count the same and once the notes are counted, the anthracene powder would not appear only on the fingers of one hand but presence would be noticed elsewhere and on another hand also. This argument is not acceptable on the ground that this was not a recovery of Rs. 500/- on the basis of any legal dues of the appellant. This was an amount of bribery. Moreover, when the currency notes of Rs.100 have been tendered, then the appellant would have taken it for granted