D. Velayutham vs State Rep.By Inspector Of Police

2 Recapitulating the facts leading up to these Appeals, Accused 1 and Accused 2 were, at the time of the perpetrations, employed as officers with Central Excise IX 'E' Range. Accused 1 held the rank of Superintendent, and Accused 2, his subordinate, Inspector of Excise in the same office. The Complainant (PW2 before the Trial Court), a manufacturer of 'camel back rubber slab', received a show cause notice for payment of Excise duty amounting to Rs. 1,01,333/-. PW2 attended an enquiry held before the Assistant Commissioner (PW4) of Central Excise, on 07.20.1996; the notice was recalled following this Enquiry. Thereafter, PW2 received yet another show cause notice, dated 24.05.1996, issued by Accused 1 as its signatory, demanding 'difference amounts' (as recorded by the Trial Court) of Rs. 1,23,193/-. PW2 visited the office of both Accused on 04.06.1996 at 11:30 am, where he met both Accused 1 and Accused 2. Upon questioning the Accused persons about the second notice, PW2 was confronted with a bribe demand from Accused 1 of Rs.1000/- for each Accused whereto Accused 2 concurred. The bribe demanded was to be paid by PW2 to both Accused on the same day, at 4:30 pm. PW2 immediately thereafter went to the office of the Superintendent of Police and reported this illegality, whereupon PW6, the Inspector, prepared a trap. As was planned, PW2 handed over to PW6 currency notes totalling Rs. 2000, in presence of two independent witnesses, PW3 and another. PW6 explained to PW2 the working of the Sodium Carbonate test characteristic of trap cases, and proceeded to smear the notes (M.O.1 currency series) with phenolphthalein powder, before returning them to PW2, who placed them in his shirt pocket. An entrustment mahazar was prepared. PW2 was instructed to signal the trap team upon handing over the notes to the Accused, and PW3 was instructed to accompany him and witness this receipt of the illegal gratification. PW2 went to the office cabin of Accused 1, who was not to be found present there, but on encountering Accused 2, PW2 was told by him that Accused 1 had shortly earlier left the office, to visit his indisposed wife. Accused 2 told PW2 that he had been instructed by Accused 1 to collect the moneys on behalf of them both. PW2 handed over the currency notes to Accused 2, who then handled these with both hands, and placed them in his shirt pocket. PW3 witnessed the transaction, having stood alongside PW2. PW2 walked out of the office and signalled to the trap team, whereupon PW6 entered the office and subjected Accused 2 to the sodium carbonate solution test, which tested affirmative, both hands of Accused 2 having been dipped in the solution, turning it pink. Accused 2 was then directed by PW6 to return the notes, which he did, by first going into Accused 1's office, and, thereafter back to his own desk, where the currency notes had been kept inside his right drawer. The currency notes were then surrendered to PW6. A mahazar was prepared, the incriminating property seized, and two witnesses signed the mahazar. Accused 1 was subsequently arrested.

4 The conviction of Accused 2 is unproblematic. Accused 2 was successfully entrapped by the trap team with Rs. 2000/- recovered from his possession. He has admitted the receipt of the bribe amount. The only effort at proving his innocence has been the submission that receipt of the entire sum was on behalf of Accused 1, no part of which was demanded by Accused 2 for his own keeping and consumption. This specious defence would have us believe that Accused 2's mala fides extended only to being an abettor to the principal perpetrator, Accused 1, and went no further. We are more inclined to accept PW2's more robust and rounded account that Accused 2 accepted the sum both for himself and on behalf of Accused 1, in preference to Accused 2's claim that he was personally uninvolved, but merely an abettor-custodian on Accused 1's behalf. Since the defence of Accused 2 stands already breached by his admission of his facilitation of an illegal act albeit allegedly on Accused 1's behalf, we can safely proceed further and affirm the concurrent conclusion from the Complainant's evidence that part of that sum would have been for the fulfilment of the bribe demand of Accused 2.

5 A commentary on conviction of Accused 1 will, in the face of the facts, necessarily be more elaborate. Accused 1 was not present at the execution of the trap, and is at first glance, conveniently poised to deny any and all knowledge of the bribe-taking by Accused 2 on his behalf. Accused 1 has expectedly disavowed Accused 2 and denied making any bribe demand from the Complainant, and has in turn thrown doubt on the Complainant's testimony by accusing him of being an interested or partisan witness, exacting vengeance against Accused 1 for issuing the second notice. Accused 1 has maintained that the second notice was bona fide, and was issued only for the purpose of extending the limitation period connected with the Excise demand in question. The Assistant Commissioner, PW4, accepted this rationale in his evidence given before the Trial Court but deposed that Accused 1 ought to have obtained the necessary permission from him before issuing the second notice, which issue had already been adjudicated earlier by PW4. It is on this basis that the second notice was held to be illegal by both the Courts below.

18 In view of the above conspectus, we dismiss both Appeals, and sustain the Impugned Judgment and Order of the Madras High Court below. Bail of both Accused stands hereby cancelled. Consequently, it is directed that the Accused persons are to be taken into custody forthwith, to serve out the remainder of their sentences.

19 The Appeals are dismissed accordingly. The Interim Order is recalled.

MARCH 10, 2015.