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RAGHUBIR SINGH

STATE OF HARYANA March 28, 1974

[H. R. KHANNA, V'. R. KRISHNA !HR AND P. K. GOSWAMI, JJ.J Pret:e,11ion of Corrupti~ Act. (2 of i947) S. SA-Sanction to prosecute--:- Aurhority of. sanctio11i11g authority questioned for the first ti1ne in appeal under Art. 136-Contention when may be allowed-Executive. magistrale laying traP- Propriet_v-Trap witnesses, if accomplices-Non-examinfltion of a wUness and allowing a pros•cutio11 witness to be 1'tated as stile-Effect of.

The appellant, an Assistant Station MaSter, was c(>D.victcd of the offence of criminal misconduct in the discharge of his duties punishable under s. S(2) of the Prevention. of Corruption Act. 1947, and the conviction was confirmed by the High Court. In appeal to this Court under Art. 136, it was contended that; ( 1) the~ prosecution was invalid for want of competent sanction;. (2) the investigation was not merely illegal but caused serious prejudice to the accused; (3) the Court should have drawn an adverse. inference aa; ainst the prosecution from .lhe non-!'xani.ination of a key witness like the Deputy Superintendent of Police;

{ 4) ·.the uncorroborated testimony of accomplices .or quasi-accomplices should not have been made the foundation fQr the conviction; a.lid ( 5) the Court should not have drawn a presumption under s. 4 of the Act as the charge was under s. 5(l)(d) rend withs . .S(2).

Dislliissing the appeal.

HELD :-(l)(a) The Divisional Officer (Senior scale) eranted the sanctioa for prosecution in this case, and under r. 134 of the Indian Railway Establishment Code, he has the delegated power to appoint and dismiss officers like the accused, and therfore, was competent to grant the sanction. [802 C-D]

(b) The construction souaht to be put On the rule reading it with r. 3(a). chat ofily 'Divisional Personnel Officers are in executive charge_ of the staff of Divisional Offices and are entitled to control them and therefore, by implication other divisional officers are excluded from the delep.tion of powers in re&ilrd to appointments has no substance.

Rule 3(a) refers to 'E.stablishmenl matters' which ordinarily cover routine items and not appointments and dismissals

(802 H-803 A]

( c) MOreovor the appellant should have produced his appointment order if his case was that it was only a Divisional Personnel Officer and not a Divisional OffiC!'r that appainted him. [803 BJ

(d) .This. cqnte.nti9n was nQt a!sed in th~ low.er cour~ nor in the High .Court.

In special circumstances the vahdny of a sanction which goes to the root of tho case may be permitted to be raised for the first time inthis Court but this. is not one such. [802 G) Vinayak v:. Josl1ib"v. State, A.l.R. 1968 Pun, 120 and Sudarshan/111 Baja;

v. S. P. Agarwaki, A.l.R. 1966 Raj. 37, referred to.

(2) The mandate of s. SA regarding investigation is merely that no police officer below the rank of Deputy Superintendent .of Police shall investigate any of the offences specified therein. There was no inaction by the police or misuse. of tbe executive m8.gilstracy in this case. In the present case, a trap was laid by the Executive Magistrate, because the D.S.P. had no jurisdiction over railway prt'miscs, and after the trap episode was completed and'. the bft'ence committed information was laid before the police officer. who started. the iQVtigation; and he certainty was an officer of competent.rank .. While,.layi!18'. a trap by a police

Officer, may be a sieP ill irivestigation if a case had already: been; registered itl the -palicC station pursuant to which the trap was set, ii Cannof be sald tO: bi a part or investigation where a trap is Jaid only to find out -whether "an offence is going to be committed. There is nothing in s. SA prevenling an Executive, Magistrate or other public officer laying a trap to catch the allegedly conupt official. [804 A-DJ

State of Bihal v. Baawan Singh. J1959] S, C, R .. 195 and Rishbud and lnder Singh V. Stale of Delht, [1955] I s.c.R: 1150 followed.

Hira Lal [1970] 3 S.C.R.. 933, rofe)'rid tg. 8-L84Sup. Cl/75

800 SllPREME COURT- REPORTS

(1974] 3 S.C.R.

(3) The non-examination of th: Deputy Superintenjent of Police is of no A consequence at aII in the case. [807 B] (4)(a) The speci2.I jurisdiction under Art. 136 of the Constitution cannot , be diluted into a second appeal on facts. [804. E-F] . (b) To condemri roundly every public official or man of the people as an accomplice or. quasi-accomplice for participating in a raid is to harm the public cause. 11.Iay be a_ judicial officer, should hesitate to get involved in police traps \Vhen the police provide inducements and instruments to commit crimes, because,

that. \\rould s_uHy the image of the independence of the judiciary.

But there B cannot be a total ban on public officers even though executive . magistrates, { playing a socially useful role. in checking public men's corruption when the r"\,--

ituation needs it. A flexible, realistic approach is the sound ourse. (805 C-E] i In the present cases the magistrate was not a full-blooded judicial officer no de 1iqJ..'O_ temptation or bribe money was offered by the Police and no ground to 4isre_dit the veracity of the magistrate had geen elicited. (805 E]

r:.:.a Shiv Bahadur Singh v. State of Vind/Jya Pradesh, [1954] S.C.R. 1096, C referred to.-·

 (c) The permissioQ. given .by the Court to treat a prosecution witness as hostile \Vas properly granted. It is discretionary power of the trial coilrt and, if_ the. witness strikes. the. court as imbued \vith partisan zea1. cross-examination 1nay bi!· allowed by the party who calls him;;-

[806 E-F]

(5) Even if the statutory presumption is unavailable courts may presume \Vhat may in the ordinary course be the most probable inference.

That an' Assistant Station Master has in his hand a marked currency note made over to him by a passenger whose bedding had been detained by him, for which no. credible. explanation was forthcoming, speaks for itself. Assuming that the passenger was using a. pass intended for himself to take with him his rife and child illegally aiid thus tried to dupe the railway~ it is no alibi for the Assistant Station_ MaStCr to heJp himself to illici_t gratification.

[806 G-807 B] CR.iMINAL APPELLATE JURISDICTION : Criminal Appeal No. 15 of 1971. . .

Appe3J by special leave from the judgment and order dated the 15th May, 1970 of the Punjab and Haryana High Conrt in Criminal Appeal No. 737 of 1968. • ·· Frank Anihony and K. B. Rohatgi, for. the appellant.

H. s, Mmwah, and.R. N. Sachthey, for the respondent.·

The' Judgment of the Court was delivered by, " KRISHNA IYER, J.-Mr. Frank Anthony arguing the case for the accused, in this appeal by special leave, has put forward four main contentions against the appellant's is conviction, namely, (a) that the 'prosecution is invalid for want of competent sanction; (b) that the investigation. is not merely illegal but has in consequence inflicted serious prejudice on the accused; ( c) th<1t the non-examination of key witnesses, like the Deputy Superintendent of Police, should have driven the court to. draw an adverse inference fatal to the case, and the uncorroborated testimony of accomplices or quasi-accomplices should not have been the foundation for a conviction, and ( d) that the Court had drawn a presumption under s. 4 of the Prevention of Corruption Act, although there was no warrant for it in the present case, the charge having been one under s. 5(1)(d), read with s. 5(2) of the said Act.

A brief statement of the facts will lead to a better appreciation of the arguments urged. The accused (appellant) was an . Assistant

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Station Master at Ateli in May 1967. P.W. 3, a member of the Armed Forces, was going back home by train from Udaipur with his wife and child on railway concession pass, carrying with him a trunk and bedlling. When the train reached Ateli Railway station in , the afternoon of May 9, 1967, P.W. 3 got down with his baggage arid, when he handed over his ticket to the accused, was told that he had to pay extra for his wife and child and excess luggage-a sum around Rs. 45 or more. P.W. 3 pleaded that he had no money on him then and was suggestedl a way out by the payment of Rs. 10 at once a bribe and a bargain. Promising to bring the money the next day, P.W.

3 left the station leaving his bedding as something of a non-human 'hostage' which was to be released or. the payment of the illicit sum.

On reaching his village late in the night, P.W. 3, the Jawan, thought of informing the authorities about this harassment. Accordingly, be contacted the Deputy Commissioner, Narnaul, on May 11 and related to him what had happened. The Deputy Commissioner instructed the Superintendent of Police to look. into the matter who directed the Deputy Superintendent of Police, Narnaul, to take suitable action. He also sent a telephonic message to Shri Dharamvir, Sub Divisional Magistrate, Narnaul, and told him that Sis Ram had been directed to contact the Deputy Superintendent of Police, Narnaul, in connection with his complaint. thereupon, the Sub Divisional Magistrate, P.W. 5, together with the Deputy Superintendent of Police, decided to. organise a trap, on being apprised of the story by P.W. 3. The team consisted of the Deputy Superintendent, the Sub Divisional Magistrate, a head constable of the railway police, and P.W. 3 himself. The party moved to the railway station and P.W. 4, Lakshmi Narain, also joined them on the way. A .ten-rupee note (Ex. Pl) was handed over by P.W.3 to the Sub Divisional Magistrate, who signed on it, .in token whereof a memo was prepared, Ex. PF. P.W. 3 took back the note, his body' was searched as part of the usual precaution and he was directed to go to the accused and give signal after the money was paid. As arranged, P.W. 3 met the accused, made over the money, gave a signal whereupon the party of the Sub Divisional Magistrate closed in on the accused.

The marked note was. recovered from his right hand ( vido memo. Ex.

PG). Thereafter, the Sub Divisional Magistrate lodged a First Information Report with the police, a case was registered and on completion of investigation by the Deputy Superintendent of Police having jurisdiction over the Railways, P.W. 7, and after obtaining the statutory sanction, Ex. PD/l, the accused was charged with an offence of having accepted illegal gratification of Rs. 10 on May 11, 1967 from P.W. 3 thereby committing criminal misconduct in the discharge of his duties, punishable under s. 5(2) of the Prevention of Corruption Act, 1947. The Special Judge convicted the accused, overruling the defence version set up under s. 342, Cr. P.C., and disbelieving the defence witnesses. The High Court confirmed the. conviction.

The sentence of one year rigorous imprisonment and a fine of Rs. 200 \\'US

also confirmed.

Shri Frank Anthony sought to make good his contention regarding the invalidity of the sanction, Ex. PD/l, by urging that P.W. 2, a Divisional Officer (Senior Scale), who granted the sanction did not

and, under the rules, could not appoint or dismiss the accused. It has A to be mentioned right at the beginning that P.W. 2, who was working as Divisional Operating Superintendent, Western Railway, Udaipur, has sworn that by virtue of delegated powers he was competent to remove an Assistant Stati.on Master like the accused. Although his evidence was a little ambiguous in that he first swore that he was competent to remove but not to dismiss the accused, on a later date he was recalled, and gave evidence bringing with' him the relevant rules B and regulations. He testified that under the rules he was competent to f. dismiss a Class III servant drawing a pay rising up to Rs. 250. The _., l accused came within this category. The High Court, not content with mere oral evidence on this issue, went elaborately into the legality of the sanction and found that the Indian Railway Establishment Code (rule !34) authorised delegation of powers, and in the schedule there is a clear delegation of the powers in favour of Divisional Officers c. (Senior Scale) to make initial appointments to posts in scales of pay rising up lo Rs. 380 per month. P.W. 2 is a Divisional Officer, Senior Scale, and the accused holds a post in a scale of pay not exceeding Rs. 380/- per month. The Court, therefore, concluded that the power to appoint, which also carried with it the power to dismiss, vested in

P.W. 2.

Counsel for the. appellant contended that even though i:. !34 of the, Indian Railway Establishment Code appeared to. vest powers in Divisional Officers, Senior Scale, if read in the light of the Schedule of Powers delegated by the General Manager, control in regard to appointments was vested only in'. the Divisional Personnel Officer as such .. To substantiate this argument counsel invited our attention to certain earlier portions of the Code .. He placed reliance on r. 3(a), which reads: . , ,· ,. ,

"As the DPOs ~; e in executive' charge of the staff of the Divisional Offices, exclusive of those working under the Divisional Accounts Officers, the powers delegated to Divisional Officers (Si. Scale) in Esta]Jlishment matters will, in respect of staff of the Divisional Offices, be exercised by the DPOs." . . . . . ' . .. . ·, . , .

There are.two difficulties in the way of our'accepting this conten- ?- lion. For one tiring, this point admittedly has not been taken before the High Court or the special judge. It is not, therefore, permissible ~- for us to allow it to be argued for the first time in the Supreme Court since the State has no opportunity to explain whether there are other G orders and what the expression 'Establishment matters": means. In special circumstances, the validity of a sanctionwhich goes to the root of the case may be permitted to be raised for the first time in this Court. This case is not one such. For another, the rule is clear that persons like P.W. 2, namely, Divisional Officers, Senior Scale, have the power to .appoint class III officers like the accused. The contruction sought to be put on it by counsel that only DPOs are in H executive charge of the staff of Divisional Offices :j]Id are entitled to control them, and by. implication, therefore, other Divisional Officers are excluded from the delegation of po.vers in regard to appointments

has no substance. 'Establishment maUefS' ordinarily. cover routine items, not appointments and dismissals. May be,, for tier. co-ordina tion and avoidance of conflict among divjsional officer~.d.irections may have been issued regarding exercbe of powers by one which do not contradict existence of powers in others. Moreover, it,, was easy for the appellant to produce his appointment orderif his .a<!ditional c.ase that only a Divisional Personnel Officer and not a .. Divisional Officer appointed him.

Again, all that Ex. P.E. and like.d<)(:umcnts prove is that allotments of selected persons are made .by the higher officer (the

R.T.S.) but the actual appointment is made by the D.T.S. There is thus no force in the 'last straw' plea that the R.T.S. alone could or did appoint him.

Two decisions were pressed before us by Shri Frank Anthony. The first, Vinayak V. Joshi v. State(!), is easily distinguishable. There, a Divisional Medical Officer who was of equal status with a Divisional Personnel Officer granted sanction but be had no delegation of powers of appointment which only the latter enjoyed .. Mere equality of official status with a ddegate cannot clothe the other officer with delegated powers and so in that decision it was helcl. that the Medical Officer's sanction was incompetent, there being no delegation in his favour.

The other ruling of the Rajasthan High Court, Sudarshan/a/ Bajaj v.

S. P. Agarwala('), has no application whatsoever. In these circumstances, we 'have no hesitation in rejecting the plea of the illegality of . the sanction. Couns'l is certainly right that if there is infirmity in the sanction the prosecution must fail. While it is true that provision for sanction before prosecution of 1 a pYblic servant should not be an umbrella for protection of corrupt officers but a shield against reckless or malevolent harassment of officials whose upright discharge of duties may provoke unpleasantness and hostility, that is an area of law reform covered, we find, by the 4 7th Report of the Law Commission of India.

Now we proceed to consider a kinded contention that the investi gation is grossly illegal nnd, without more, spells an acquittal.

Shri Anthony asked why the Deputy Commissioner did not record the statement of P.W. 3, the aggrieved Jawan. Why did the Superintendent of Police or even the Deputy Superintendent of Police desert his duty to register .a case on being apprised of the offence? Was it not a sub. version of the provision of s. SA of the Prevention of Corruption Act, 194 7, to bypass the police establishment by employing a magistrate to lay a trap? These interrogations do not legally wreck the conviction because they do not brand the investigation as invalid. As explained by counsel for the State, P.W. 3 may well have complained of harassment by the accused detaining his bedding and the Deputy O:m1missioner would have in the usual course directed him to the District head of the police. The latter, not improperly, may well have asked his subordinate to take action. Since this D.S.P. had no jurisdiction over the railway premises, he did not act directly but requested the executive magistrate of the place, P.W. 5, who had already been informed by the Deputy Commissioner to initiate steps for catching

(I) AJ.R. 1968 Pun. 120. <2) A.LR. 1966 Raj. 37.

the alleged bribe taker. We do not share Shri Anthony's grave suspicion about the alleged inaction of the police and the misuse of the executive magistracy. The simple legal issue is whether s. SA has been violated or . fraudnlently frustrated and consequent failure of justice inflicted? The mandate of s. SA is merely that no police officer below the rank of a Deputy Superintendent of Police shall investigate any of the offences specified there. Here, no investigation was done by a lesser police officer, for P.W. 7, who did the_investigation, was of competent rank and what the Magistrate, P.W. S, did was not investigation and was de hors s. SA. By \lefinition, only a police officer can investigate (sec . .4(1) Cr. P.C.) A magistrate cannot. In the present case, after the trap episode was completed and the offence committed, - P.W. S laid information before the police whereupon P.W. 7 started investigation. Until then, no investigation in law did or could com- . mence. Moreover,.while laying a trap by a police officer may be a step in investigation if a case has already been registered in a police station pursuant to which the trap is set, it cannot be part of investigation where the exercise is only to find out whether an offence is going to be committed. Hira Lal(') hardly rescues the accused .. There is nothing in s. SA preventing an executive magistrate or other public officer laying a. trap to catch an allegedly corrupt official. The ruling in State of Bihar v. Basawan Singh(2 ) by implication upholds this position. In fact, in the current crisis of rampant corruption polluting the public services-so the public mind demoralisingly believes-the-need for superior officers vigilantly organising Operation Anti-Corruption cannot be discouraged by legalisms. For the present case it is enough to say' that. no violation of law nor serious prejudice has been made out (vide Rishbud and lnder Singh v. State of Delhi) (3). ·

The meat of the matter, if one may say so, is whether the accused has been proved to have helped himself to an illegal gratification of Rs. 101-, as alleged. At the thres!; old we must remind ourselves that the special jurisdiction under art. 136 of the Constitution cannot be diluted intO" a second appeal on facts. The e_nd of the appellate journey is normally 'the High _Court and exceptional circumstances alo[le can justify the exercise of the extraordinary power of the Supreme Court to review the evidence. The strange and expensive spectacle of multitiered appeals built into the system does more injury than justice and strictness inthiS( regard brings finality to litigation early instead of holding out illusory hopes to one who would not have ventured on this costly project had he. known the limitations on the jurisdiction under art. 136, m._ore so when the findings are concurrent.

We shall brieflj examine the strong attack made by Shri Frank Anthony on the evidence adduced and the credence given to it by the courts below. The sharp castigation of traps as. immorar. of trap witnesses as accomplices, of involving magistrates in such dubious exercises as reprehensible, may have had some precedential support but

(1) (1970] 3 S.C.C. 933. (2)

(19591 S.C.R. 195.


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RAGHUBIR SINGI! v. l!ARYANA (Krishna Iyer, J.) 805

time and circumstance, the compulsions of public demand for arresting an insidious but expandin_g evil and a sense of judicial realism and appreciation of the specific facts of each case guide the pragmatic yet principled approach the court has to make. It is not necessary ihat executive magistrates should always keep away from operations in tended to catch the criminal red-handed. He is not so strongly moti. vated to get a suspect somehow or other punished. He is professionally detached and has a public responsibility to help detect a bribe-taker if credible requests are made. Such a magistrate is not a cloistered virtue unconcerned with social claims _on his services. It is apathy of good citizens that induces police officers to go after the lesser breed

of. search witnesses in the enforcement of social welfare statutes. To condemn roundly every public offiCial or man of the people as a quasi-accomplice for participating in a raid is to harm the public cause. May be, a judicial officer, unlike an executive magistrate, should hesitate to get involved in police trap experiments and expose him self to charges of unveracity. However, there is force in the censure made in Rao Shiv Bahadur Singh v. State of Vindhya Pradeshc') when the police provide inducements and instruments to commit crimes and judicial personages willingly lend themselves to be enmeshed in such shady attempts, sullying the image of indepenclence of_the judi ciary. But we cannot exaggerate these dicta into a total ban on public officers, even though executive magistrates, playing a socially useful role in checking public men's corruption when the situation needs it.

This is best illustrated by the observations of Das, J., in State of Bihar

v. Basawan Singh(') where the learned Judge emphasized that a flexible, realistic approach is the sound course. In the present case, the magistrate was not a full-blooded judicial officer but only exercised limited preventivei powers after separation of the judiciary from the executive. No. de nove temptation nor bribe money was offered by the police in the present case. The magistrate merely sought to do his public duty of. intercepting a crime which was otherwise in the process of fulfilment. It was service, not sin, to have done it. No ground to discredit the veracity or taint the testimony of P.W. 5 has been elicited. And, what dissolves scepticism and builds up credence is the seizure of the marked currency note from the accused's right hand and the presence of the bedding of the jawan on the railway station. The briginal story of P.W. 3 fits in with the facts while the accused's strained version stands unproven. The murky evidence of the miUtary man, P.W. 3, who perhaps stood to gain by paying Rs. 10 and avoiding excess. baggage and extra passepger charges may be insufficient to prove guilt if uncorroborated by better testimony. A bribe deal is usually a benefit-both syndrome and the payer's lips carry little con. viction in the absence of re-assuring support. Before us, the executive magistrate, P.W. 5, and the casual member of the trap team, P.W. 4, have given testimonial boost. But real reinforcement comes from the right hand of the accused which held the guilty note and gave it over to P.W. 5 on being challenged. The counter-story of the Assistant Station Master (accused) was that the Jawan was stopped by the attender (or water carrier) of the station at the gate for insufficient ---··- - Ol [19541 s.c.R. 1096.

(2) [19591 S.C.R. 195.

tickets and excess baggage but, after some sound and fury over an interpolation in the military pass, was allowed. to go by the accused who promptly reported to the Jaipur Station Master to know how many passengers were covered by the pass. The inconvenient 'bedding' of the J a wan was explained by the accused as. having been left behind by P.W. 3 in .the heat of the moment and had bee!! kept in the lost property room and entered in the relevant register. The courts below have rejected this exculpatory case of th~ appellant and we see noth ing too odd in the appreciation or too unnatural in the inference to warrant our 5nterference. True, P.W. 1, the fellow station master, has endeavoured to substantiate the appellant's plea hut has been disbelieved. After all, the successful and sustained prevalence of rackets like corruption is built on the artful network of sharing agencies and the rescue operations of P.W. 1 cannot be regarded as independent evidence of an unconnected officer. We hope that the authorities in charge of cleansing our public sector of corruption wjll view each detected act as symbolic of a chain scheme and symptomatic of a deeper systr 11ic malady and not as an isolated aberration of a delinquent official. A massive purge, not stray traps, can alone be the strategy. That P.W. 1 supports the accused is no surprise if we realise how dubious 'distributjve_ justice' works in some of these public offices where money is illicitly collected. An honest Assistant Station Master in the place of the accused cJuld not have allowed P.W. 3 to leave without reporting to the raiI.vay polic.::. Nor is th<;_ frivolous explana. tion that the ten-rupee note was brought by P.W. 3 when the accused wanted only one rupee as official charge for keeping the bedding in the lost property room worth a serious look. We regret our inability to accede to the forceful submissions of Shri Frank Anthony on this aspect of the case. ·

In passii!g we may mention that the criticism made by learned counsel that P.W. 1 has been illegally permit!ed to be treated as 'hostile' is pa, i.ntless. It is a c;!iscretionary power of the trial judge and , when a witness strikes him as imbued with partisan zeal cross-exami nation may be allowed by the party who calls him. After . all, these rules are only to further the end of truth, not clogs in the quest for it.

We see nci merit in the argument. To sum.up, the case against the accused has been made out beyond reasonable doubt. Infallibility 'is -the attribute of the omniscient and judges can only act on pragmatic sense and reasonable doubts. ·

The last submission turns on the presumption under Section 4 of the Act: The contention of counsel for the appellant that the presumption

aviailable under s. 4 of the Act cannot be raised in the present case since the charge is under s. 5(l)(d), read withs. 5(2), is apparently attractive. But we may notice that even if the statutory {'resumption is unavailable, courts may presume what may in the ordinary course be the most probable inference. That an Assistant Station Master like the accused has in his hand a marked! cm:rency note made over to him

by a passenger whose bedding has been detained by him for which no H credible explanation is forthcoming, and he is caught red-handed wjth the note, is a case of res ipsa /oquitur. The very thing. speaks for itself in the circumstances. We need not, therefore, scrutinise the

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substance of the argument based on the inapplicability of s. 4. We also feel that there may be some force in the _argument of counsel that the jawan, P.W. 3, might have duped the railway by using a pass for one passenger and carrying ii family of wife and! child together. Of course, we cannot finally pronounce on this matter for want of sufficient documents. All that we nee.ct say is that even assuming that the passenger so tried to dupe the railway, that is no alibi for the Assistant Station Master to help himself to illicit grarification. Nor is the non-examination of the Peputy Superintendent of Police of any consequence in the case.

In these circumstances we find no reason for interfering with the concurrent conviction and sentence. The appeal is dismissed.

V.P.S.

Appeal dismissed.