IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No.375 of 2008 Decided on: March 9, 2011 Sanjay Awasthi .. Appellant. Versus State of HP .. Respondent Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. Satyen Vaidya, Advocate. For the Respondent : Mr. Vikas Rathore, Deputy Advocate General. Surjit Singh, Judge (oral) Appellant Sanjay Awasthi has appealed against the judgment, dated 12.6.2008, of learned Special Judge, whereby he (the appellant) has been convicted of offences, under Sections 7 and 13(2) of the Prevention of Corruption Act and sentenced to undergo rigorous imprisonment for one year and to pay a fine of `10,000/-, for offence under Section 7 of the Prevention of Corruption Act and rigorous imprisonment for two years and to pay a fine of `10,000/-, for offence, under Section 13(2) of the said Act. 2. Prosecution case, which has led to the conviction and sentencing of the appellant, may be summed up thus. Whether reporters of the local papers may be allowed to see the judgment? …2… Appellant was employed with Municipal Committee, Nalagarh, as Junior Engineer, on contract basis. He was appointed in the year 1998. In the year 2006, PW-1 Shiv Prashad constructed a building for which he submitted a plan to the Municipal Committee for approval. That plan was submitted on 15.9.2006. In the month of September 2006 itself, PW-1 Shiv Prashad reported to the Muncipal Committee that his building was complete and he be issued NOC (No Objection Certificate) for obtaining electricity and water connections. Site was visited and it was found that there were deviations from the sanctioned plan, while carrying out the construction. Main deviation was with regard to the covering of entire set back area. Appellant, who was working as Junior Engineer, was required by his seniors to work out the amount, by paying which PW-1 Shiv Prashad could compound the deviation. Amount was worked out at `15,000/-. 3. On 4.5.2007, appellant allegedly made a telephonic call to PW-1 Shiv Prashad that he would be issued NOC for obtaining water and electricity connections on payment of `15000/-, on account of composition fee and `50,000/- as bribe money to him. PW-1 Shiv Prashad visited the appellant in his office, after receiving the said telephonic call. It was settled that a sum of `40,000/- would be paid as …3… bribe, in addition to `15,000/-. PW-1 Shiv Prashad did not want to pay bribe. So, on 7.5.2007, he gave a ring to Anti- Corruption people of Solan. He was informed that a party of Anti-Corruption Staff headed by an Inspector was already at Nalagarh. PW-1 Shiv Prashad then arranged a sum of `40,000/-, by pledging his mother’s ornaments, weighing about 61 grams, with PW-6 Ramesh Kumar. He then contacted the Inspector, namely PW-15 Dhanbir Singh, on telephone. Contact was made on telephone, because mobile phone number of PW-15 Dhanbir Singh had been intimated to PW-1 Shiv Prashad by the official, who attended his call at Solan. 4. PW-15 Dhanbir Singh told Shiv Prashad to remain present at his residence in Nalagarh. He reached the place of PW-1 Shiv Prashad around 11.30 and recorded his statement Ext. PW1/A, under Section 154 Cr. P.C, which was sent to the concerned Police Station, where case was formally registered vide FIR Ext. PW13/A. In the meanwhile, Dy. S.P. of Anti-Corruption Department, namely Ramesh Chhajta also reached the residence of PW-1 Shiv Prashad. PW-15 Dhanbir Singh demonstrated to PW-1 Shiv Prashad and his father PW-2 Chint Ram how solutions, in water, of phenolphthalein and sodium carbonate turned pink, when mixed with each other. …4… 5. PW-1 Shiv Prashad was required to produce currency notes of `40,000/-. He produced forty currency notes of the denomination of `1000/- each, bearing numbers 6AG829001 to 6AG829040. Powder of phenolphthalein was applied to currency notes and the same were returned to PW-1 Shiv Prashad, with a direction to hand over the same to the appellant, on demand, and not to fiddle with the same, till they were to be handed over to the appellant. PW- 2 Chint Ram, father of PW-1 Shiv Prashad was directed to act as shadow witness. In the meanwhile, PW-1 Shiv Prashad received a telephonic call from the appellant that he was present near Sheetla Mata Temple at a worksite and money could be paid to him at that site. So, PW-1 Shiv Prashad and his father PW-2 Chint Ram proceeded to the site. Dy. S.P. Ramesh Chhajta, PW-15 Dhanbir Singh and some other officials of Anti-Corruption Department followed them. 6. When PW-1 Shiv Prashad went to the site, where appellant was present, the latter asked if the money had been brought. PW-1 Shiv Prashad took out the money and handed it over to the appellant, who after counting the same put it in one of the pockets of pants, which he was wearing. Waiting police party was given the prefixed signal by PW-2 Chint Ram. Soon thereafter police people reached the spot. They overpowered the appellant. In the …5… meanwhile, several persons from that locality gathered and started complaining that force was being used. Apprehending breach of peace, police officials took the appellant to the office of Municipal Committee, Nalagarh, located at a distance of about 300 metres. PW-1 Shiv Prashad and his father PW-2 Chint Ram, in the meanwhile, slipped from the spot and hid themselves in their house. 7. On reaching the office of Municipal Committee, Dy. S.P. Ramesh Chhajta arranged to secure the presence of two independent witnesses, namely PW-3 Lekh Raj, Mining Inspector and PW-4 Sachin Kanwar, BDO. In their presence, appellant was made to wash his hands in a plate with plain water. Solution of sodium carbonate, in water, was prepared and added to the hand wash, which turned pink. The same was poured into a bottle and the bottle was sealed. Appellant was then required to produce currency notes. He took out all the forty currency notes and handed over the same to the police. Numbers of currency notes matched with the numbers of notes, which PW-1 Shiv Prashad had produced at his residence to PW-15 Inspector Dhanbir Singh and which numbers had been recorded in Memo. Ext. PW3/B, prepared before the trap was laid. 8. Appellant was then required to take off his pants. Pocket of the pants from which he had taken out the currency notes was also washed with plain water and to this …6… wash also, solution of sodium carbonate was added. The mixture turned pink. It was secured in another bottle. 9. From the office of the appellant, application Ext. PW3/D3, submitted by Shiv Prashad for obtaining NOC alongwith a note in the hand of the appellant, which is Ext. PW3/D-1, and the draft of NOC Ext. PD3/D-2, were taken into possession. 10. Two bottles, containing hand wash and pants wash, were sent to Chemical Examiner, who vide report Ext. PW10/A, opined that contents of both the bottles had traces of phenolphthalein powder and sodium carbonate. 11. On completion of investigation, report under Section 173 Cr. P.C. was filed in the Court of Special Judge, alongwith relevant papers. Learned Special Judge, after complying with the requirement of Section 207 Cr. P.C., and hearing the prosecution as also the defence side, felt that a prima-facie case, under Sections 7 and 13(2) of the Prevention of Corruption Act, was made out against the appellant, who was accordingly charged. 12. Prosecution examined 16 witnesses, to bring the charge home to the appellant. Appellant, in his statement, under Section 313 Cr. P.C, denied having demanded or accepted the bribe. He pleaded that currency notes had been forcibly put in one of the pockets of his pants by PW-1 …7… Shiv Prashad and his father PW-2 Chint Ram and this they did, because he had been objecting to the issuance of NOC, unless composition fee was paid, whereas one Supervisor employee in the Municipal Committee, namely Baljit Singh, who was in league with PW-1 Shiv Prashad and his father PW-2 Chint Ram and who had earlier been dealing with this kind of cases, wanted the NOC to be issued without payment of composition fee or overhead charges. 13. Trial Court mainly relying upon the fact that hand wash and the pocket wash turned pink, when solution of sodium carbonate was added to them, concluded that the appellant had accepted bribe money. Trial Court did not take into account the defence version, leave alone rejecting the same with sound reasons. 14. I have heard learned counsel for the appellant as also learned Deputy Advocate General and perused the evidence. 15. It appears from prosecution’s own evidence that planning for trapping the appellant had been done by Anti- Corruption people, even before they were informed by PW-1 Shiv Prashad. According to him, when he contacted anti- corruption people at Solan, on telephone, on 7.5.2007, he was told that a party headed by an Inspector had left for Nalagarh and he should be contacting them. PW-15 …8… Inspector Dhanbir Singh, who laid the trap, testified that he had left for Nalagarh, because there had been an anonymous complaint that some employees of Municipal Committee had been indulging in bribe taking and were harassing the public. He was asked, in his cross- examination, if he could produce that complaint. He expressed his inability to do so. 16. Now, if it was on 7.5.2007 that PW-1 Shiv Prashad contacted anti-corruption people at Solan, telephonically, for the first time and there is no evidence that there was any other complaint, because the alleged anonymous complaint has not been produced, and a party of anti-corruption staff, headed by an Inspector, left Solan, even before PW-1 Shiv Prashad made a telephonic call, it can legitimately be presumed that anti-corruption people went to Nalagarh on that day, with pre-determination to trap some employee of Municipal Committee and that some employee could have been the present appellant. 17. Aforesaid apprehension is strengthened by the conduct of the police officials and the manner in which recovery of tainted money was effected from the appellant. According to the prosecution, appellant accepted the money at worksite near Sheetla Mata Temple and it was there that he was caught hold of by Anti Corruption Team. However, …9… no proceedings regarding recovery of tainted money or the washing of hands of the appellant were conducted on the spot, though normally such proceedings are conducted on the spot. 18. Appellant was whisked away to Municipal Committee Office, where PW-3 Lekh Raj, Mining Inspector and PW-4 Sachin Kanwar, BDO were associated as witnesses. PW-1 Shiv Prashad and his father PW-2 Chint Ram, however, fled from the spot and hid themselves in their house. Reason given by the witnesses of the prosecution, including PW-15 Inspector Dhanbir Singh for the aforesaid deviation from the normal manner of conducting the trap proceedings is that when the appellant was apprehended on the spot, a large number of people gathered there, who were saying that force was being used. While explaining as to why the complainant, namely PW-1 Shiv Prashad and his father PW-2 Chint Ram, were not taken to the office of Municipal Committee and not made witnesses to the proceedings of alleged recovery of tainted money from the appellant, PW-15 Inspector Dhanbir Singh said that they went to their house and were not prepared to come out, because they were scared of the anger of people, who had gathered on the spot, when the appellant was nabbed. …10… 19. Why should have the people got angry at the nabbing of the appellant by the Anti-corruption people, when he had accepted bribe, according to the prosecution version? Majority of people are against bribe taking government servants. In this case, the people were supporting the appellant. Admission by PW-15 Dhanbir Singh that people were saying that force had been used fits into the defence plea that currency notes had been forcibly planted into one of the pockets of the pants, which the appellant was wearing. Had it not been so, the vigilance people could have very easily pacified the angry mob, by recovering the bribe money from the appellant on the spot and telling them that he had taken bribe. Learned trial Court has not only not rejected this plea by any sound reasoning, but has, in fact, not been able to appreciate it correctly. 20. Defence plea that PW-1 Shiv Prashad and his father Chint Ram got him falsely implicated in league with Supervisor Baljit Singh is also probabilized to an extent by prosecution own evidence. PW-1 Shiv Parsad admits that earlier it was Supervisor Baljit Singh, who worked on the seat of approval of maps and issue of NOCs and that appellant was allocated this work only a few months back. He stated that the plan which he submitted for approval had …11… been prepared by said Baljit Singh. He also admitted that the NOC was got issued by said Baljit Singh, immediately after the arrest of appellant which implies tht the work of approval of plans and issue of NOCs was again assigned to him. 21. Above stated position apart, the very story of the complainant (PW-1 Shiv Prashad) that he had borrowed money from PW-6 Ramesh Kumar is doubtful. PW-6 Ramesh Kumar stated that when PW-1 Shiv Prashad came to borrow money from him, he had only `15,000/- as ready cash with him, and rest of the money he borrowed from his uncle Ganga Dass, who has not been examined by the prosecution. 22. Numbers of currency notes are in seriatim, i.e. from 829001 to 829040. The very fact that numbers of the currency notes are in one seriatim belies the plea that money was partly contributed by PW-6 Ramesh Kumar and partly by his uncle Ganga Dass. 23. Also, there is variation in the evidence of the prosecution, with regard to the time at which tainted money was recovered from the appellant. According to PW-1 Shiv Prashad, his father PW-2 Chint Ram and also the Vigilance Inspector PW-15 Dhanbir Singh, raiding party started from the house of Shiv Prashad around 2 p.m. PW-1 Shiv Prashad …12… stated that it takes about 45 minutes to cover the distance between his house and the site where the money was paid by him to the appellant. However, PW-3 Lekh Raj, Mining Inspector, in whose presence tainted money was allegedly recovered from the appellant in the office of Municipal Committee, stated that money was recovered before lunch hour and the entire proceedings, including preparation of record, also stood concluded before lunch hour. Another witness of the prosecution, namely PW-5 Sanjeev Kumar, an employee of Municipal Committee stated that police had brought the appellant to Committee Office around 12 noon. 24. Also, there is no plausible explanation offered by the prosecution for not associating any independent witness in laying trap. Shadow witness in this case is the father of the complainant. No private person, leave alone independent witness from the locality, had been associated in the trap. All the witnesses were staff members of Anti- corruption Unit. It was only when the appellant was taken to Municipal Committee’s office that PW3 Lekh Raj and PW-4 Sachin Kanwar were called. 25. As regards the prosecution plea that there were traces of phenolphthalein powder on the hands of the appellant, because the Chemical Examiner, has opined so vide his repot Ext. PW10/A, one of the witnesses of the prosecution, namely PW-4 Sachin Kanwar, BDO, has stated …13… that the appellant was made to wash his hand initially with plain water and then he was made to wash his hands with solution of sodium carbonate, in water, and thereafter both the hand washes were poured into a bottle and it was in that bottle that the mixture turned pink. There is no reason to disbelieve this part of the testimony of PW-4 Sachin Kanwar, because the prosecution very much owns this part of the testimony as it did not chose to cross-examine him. This statement is contrary to the prosecution story that solution of sodium carbonate was added to hand wash in a plate and it was in that plate that the hand wash turned pink. The fact raises a doubt if the police officials were acting in a fair manner, because possibility cannot be ruled out that some quantity of phenolphthalein powder had been put in the bottle before hand. 26. Also, there is no explanation by the prosecution for not examining the Dy. S.P., who according to its version, remained present throughout the proceedings of the case, starting from the tainting of currency notes, at the residence of PW-1 Shiv Prashad upto the recovery of tainted money from the appellant in the office of Municipal Committee. 27. In view of the above discussion, it cannot be said that the prosecution case stands established beyond reasonable doubt. Hence, appeal is accepted. Impugned …14… judgment of the trial Court, convicting and sentencing the appellant, is set aside and the appellant is acquitted. March 9, 2011(ss) (Surjit Singh), J.