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Delhi District Court

Cbi vs . 1) P.S.Bhardwaj on 3 December, 2015

             IN THE COURT OF SH. BRIJESH KUMAR GARG 
          SPECIAL JUDGE:CBI­01: CENTRAL: TIS HAZARI, DELHI


CC No.: 21/2011                                            RC  :  2(A)/2011
                                                             PS   : CBI/ACB/New Delhi
                                                        U/s  : 120 B IPC,  r/w 
                                                                      Sec. 13 (1) (d) punishable u/s 
                                                                       13(2) of The Prevention of
                                                                  Corruption Act 1988.


CBI  Vs.           1) P.S.Bhardwaj
                     S/o Late Sh. R.K.Thakur, 
                     R/o E­173, 2  Floor,
                                             nd


                     Amar Colony, Lajpat Nagar­IV,
                     New Delhi.


                 2) Sanjay Kumar
                       S/o Sh. Jaibir Singh,
                       R/o Gali No.1, Village Jagatpur,
                      PS Timarpur, Delhi. 


Date of Institution                                      :   22.12.2011    
Judgment Reserved on                                     :   18.11.2015
Judgment Delivered on                                    :   01.12.2015




CBI  Vs. P.S. Bhardwaj etc.  (CC No. 21/2011)     Page  1   of  83                  Special Judge, CBI­01, Central, Delhi 
                                                 J U D G M E N T 

1. The present case was registered on 04.05.2011, on the basis of the written complaint of the complainant Munna Lal Gupta son of Sh. Chandra Prakash, dated 03.05.2011, wherein, it was alleged that the complainant was having some dispute with his daughter­in­law and on 30.04.2011, accused P.S. Bhardwaj and the staff of P.S. Timarpur forcibly vacated his house and handed over the possession of his house to his daughter­in­law. It was further stated that on 01.05.2011, accused P.S. Bhardwaj told the complainant that, in case, he wanted to get his house vacated from his daughter­in­law, then he would have to pay a sum of rupees one lac to him, which was to be paid to the SHO, PS Timarpur. The complaint was got verified and thereafter, a trap was laid on 04.05.2011, wherein, co­accused Sanjay Kumar was apprehended by the CBI team, while accepting the bribe of Rs. 80,000/­, from the complainant, on behalf of accused P.S. Bhardwaj.

CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 2 of 83 Special Judge, CBI­01, Central, Delhi

2. After completion of investigations, the charge sheet was filed in the court, wherein, it has been stated that verification of the complaint, dated 03.05.2011, was done by SI Alok Kumar Singh, in the presence of independent witness Jai Pal Singh. For verification of the complaint, a digital voice recorder was handed over to the complainant and he was directed to meet the accused P.S. Bhardwaj at PS Timarpur. Accordingly, the complainant went inside the office of accused P.S. Bhardwaj and had the conversation with him, which was recorded in the digital voice recorder. The recorded conversation revealed that accused P.S. Bhardwaj had demanded and agreed to accept the bribe amount on 03.05.2011 or 04.05.2011.

3. It is further stated in the charge sheet that after verification of the complaint, a trap was laid and for that purpose, a raiding party, consisting of CBI officers, namely Inspector S.P.Singh, Trap Laying Officer; Inspector Parmod Kumar; Inspector Anil CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 3 of 83 Special Judge, CBI­01, Central, Delhi Bisht; Sub­Inspector Alok Kumar Singh and other subordinate staff, was constituted and two independent witnesses, namely Jaipal Singh and Balram were also requisitioned from their respective offices. For the purpose of the trap, the complainant produced a cash amount of Rs.80,000/­ and the numbers of the GC notes were noted down in the handing over memo. Thereafter, a demonstration was given by SI Alok Kumar Singh, to explain the purpose and significance of the use of phenolphthalein powder and its chemical reaction with the solution of sodium carbonate in water. It was also explained that in case any person touches with the phenolphthalein powder and thereafter washes his hands in a solution of sodium carbonate in water, the color of the said solution would turn pink. Thereafter, the GC notes, produced by the complainant, were sprinkled with the phenolphthalein powder and a practical demonstration was given to all the members of the raiding party. Thereafter, the tainted GC notes were put in the right side pant pocket of the complainant and he was directed, not to touch the tainted GC CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 4 of 83 Special Judge, CBI­01, Central, Delhi notes and to hand over the same to the accused P.S. Bhardwaj only, on his specific demand. The digital voice recorder was also handed over to the complainant for the purposes of recording of the conversations.

4. It is further stated in the charge sheet that the independent witness Jaipal Singh was directed to act as a shadow witness and to remain close with the complainant and to over­hear the conversations and to see the transaction of bribe and to give signal to the CBI team, after the completion of the transaction, by rubbing his face with his both hands. He was also given the mobile phone number of the TLO Inspector S.P.Singh and was directed to give a phone call from his mobile phone to the phone of the TLO Inspector S.P.SIngh, after completion of the transaction.

5. It is further stated in the charge sheet that the complainant was directed to make a phone call from his mobile phone No. CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 5 of 83 Special Judge, CBI­01, Central, Delhi 9958370381 to the mobile phone of the accused P.S. Bhardwaj at No. 9891010077. During the conversations, accused P.S. Bhardwaj directed the complainant to reach the office of co­ accused Sanjay Kumar, a property dealer at Jagatpur Extension, Delhi. Thereafter, the CBI team reached the said office and the complainant went inside the said office with his son Naresh Kumar. But, at that time, accused P.S. Bhardwaj was not present there. Co­accused Sanjay Kumar, who was present there, asked the complainant to hand over the bribe amount to him, as per the directions of accused P.S. Bhardwaj. But, complainant came out of the office, on the pretext of having lunch.

6. Thereafter, the complainant made a phone call from his mobile phone to accused P.S. Bhardwaj, to ascertain his consent to pay the bribe amount to co­accused Sanjay Kumar and during the conversations, accused P.S. Bhardwaj directed him to pay the bribe amount to co­accused Sanjay Kumar. Thereafter, the complainant and his son again entered the office of co­accused CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 6 of 83 Special Judge, CBI­01, Central, Delhi Sanjay Kumar and handed over the tainted GC notes to him and thereafter, a pre­appointed signal was given to the TLO Inspector S.P.Singh. Thereafter, the TLO, Inspector S.P.Singh, along with other team members entered the office of co­accused Sanjay Kumar and apprehended him.

7. It is further stated in the charge sheet that the tainted GC notes were recovered from the table drawer of co­accused Sanjay Kumar, by independent witness Balram Singh and the numbers of the recovered GC notes were tallied with the numbers of the GC notes, mentioned in the handing over memo and the same had tallied, in toto. Thereafter, the trap team proceeded to PS Timarpur. But, accused P.S. Bhardwaj could not be found at PS Timarpur, as he had absconded.

8. It is further stated in the charge sheet that the hand washes of accused Sanjay Kumar were taken at the spot and were sealed in two separate glass bottles, which were sent to the CFSL for CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 7 of 83 Special Judge, CBI­01, Central, Delhi expert opinion. During investigations, the specimen voice samples of accused Sanjay Kumar and P.S. Bhardwaj were also taken and were sent to CFSL, for comparison with the questioned recorded conversations. It is stated in the charge sheet that CFSL reports regarding the hand washes and the specimen voice have come positive.

9. It is further stated in the charge sheet that the investigations had established that accused P.S. Bhardwaj demanded a bribe of rupees one lac from the complainant and he criminally conspired with co­accused Sanjay Kumar, who in active conspiracy with him, accepted the bribe amount of Rs.80,000/­, from the complainant.

10. It is further stated in the charge sheet that during the investigations, the sanction for prosecution of the accused P.S. Bhardwaj was also obtained from the competent authority, being a government servant.

CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 8 of 83 Special Judge, CBI­01, Central, Delhi

11. After completion of the investigations, both the accused were sent up for trial and on 31.10.2012, order on charge was passed by the Ld. Predecessor of this court and accordingly, the charges for the offences punishable, u/s 120 B IPC, read with sections 7 & 13 (1)(d) of The Prevention of Corruption Act, 1988, were framed against both the accused persons. In addition, charges for the substantive offences, u/s 7 & 13 (1)(d), r/w Section 13(2) of The Prevention of Corruption Act were also framed against the accused P.S. Bhardwaj. Both the accused persons had pleaded not guilty and had claimed trial.

Prosecution Evidence

12. During the course of trial, the prosecution has examined the following witnesses, namely:

i) PW­1 Sh. R.K.Singh. He is the Nodal Officer from Bharti Airtel Ltd. and has produced the relevant documents, like customer application form & identification documents etc. of Shri Mohd.

CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 9 of 83 Special Judge, CBI­01, Central, Delhi Feroze, the registered user of mobile phone No. 9958370381. He has also produced the call detail record and the certificate, u/s 65 B of Indian Evidence Act.

ii) PW­2 Ms. I.B.Rani, Deputy Commissioner of Police, North District, Delhi, who has granted sanction for prosecution of accused P.S. Bhardwaj Under Section 19 of the Prevention of Corruption Act and has proved the sanction order, dated 20.12.2011, as Ex.PW2/A.

iii) PW­3 Sh. Surender Kumar. He is the Assistant Nodal Officer from Idea Cellular Ltd. He has produced the relevant documents and the call details of mobile phone No. 981010077, registered in the name of accused P.S. Bhardwaj.

iv) PW­4 Sh. Israr Babu. He is the Alternate Nodal Officer from Vodafone Mobile Services Ltd. He has produced the call details record pertaining to mobile phone No. 9891010077, alongwith the certificate, u/s 65 B of Indian Evidence act. He has also produced the relevant documents and the call details record of mobile phone No. 9873000774, registered in the name of accused CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 10 of 83 Special Judge, CBI­01, Central, Delhi Sanjay.

v) PW­5 HC Prem Chand, who was posted at P.S. Timarpur, Delhi, during the relevant time. On 04.05.2011, he was sitting in the office of accused Sanjay, when the raid was conducted by the CBI.

vi) PW­6 Const. Pushpender, who was posted at P.S. Timarpur, Delhi, during the relevant time. On 04.05.2011, he was also sitting in the office of accused Sanjay, when the raid was conducted by the CBI.

vii) PW­7 Sh. Munna Lal Gupta, the complainant of the present case.

viii) PW­8 Dr. Rajender Singh, Principal Scientific Officer, CFSL, New Delhi, who has examined the recorded conversations marked Q­1 & Q­2, with the specimen voice of the accused persons, marked S­1 & S­2. He has proved his reports as Ex.PW8/A & Ex.PW8/B.

ix) PW­9 Inspector S.P.Singh, ACB, CBI, Delhi. He is the Trap Laying Officer (TLO) in the present case.

CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 11 of 83 Special Judge, CBI­01, Central, Delhi

x) PW­10 Sh. V.B.Ramteke, Senior Scientific Officer, CFSL, New Delhi, who has chemically analyzed the alleged handwash solutions marked RHWs and LHWs. He has proved his report as Ex.PW.10/A.

xi) PW­11 Sh. Jaipal Singh, Assistant, Bureau of Indian Standard, New Delhi, who was requisitioned by the CBI to witness the verification of the complaint on 03.05.2011 and also to witness the trap proceedings on 04.05.2011. He was also directed by the Trap Laying Officer to act as a shadow witness.

xii) PW­12 Sh. Balram, LDC, Bureau of Indian Standard, New Delhi, who was also requisitioned by the CBI to witness the trap proceedings on 04.05.2011.

xiii) PW­13 Sh. Pankaj Vats, Inspector, CBI, Kolkata. He is the first Investigating Officer of the present case.

xiv) PW­14 Inspector Alok Kumar Singh, CBI, ACB, New Delhi. He was entrusted the task of verification of the complaint of complainant Munna Lal Gupta Ex.PW.7/A by Shri Sumit Saran, SP, CBI, New Delhi. This witness has also accompanied the CBI CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 12 of 83 Special Judge, CBI­01, Central, Delhi team, during the trap proceedings on 04.05.2011.

xv) PW­15 Sh. Manish Kumar Upadhyay, Inspector, CBI, ACB, New Delhi. He is the second Investigating Officer of the present case.

13. After completion of prosecution evidence, the statements of both the accused persons were recorded, u/s 313 Cr.P.C., wherein, both the accused have denied all the incriminating evidence against them.

(i) Accused P.S. Bhardwaj has stated in his statement, u/s 313 Cr.P.C., that he was the investigating officer of FIR No. 186/10, which was lodged by Smt. Neelam Gupta, against complainant Munna Lal Gupta. The allegations related to kidnapping and theft, but the FIR had been lodged under Section 380 IPC only and adding of Sections of kidnapping was under contemplation of the senior officers. The anticipatory bail application of complainant had been rejected thrice and he had opposed the anticipatory bail, being the Investigating Officer. Non­bailable CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 13 of 83 Special Judge, CBI­01, Central, Delhi warrants were also pending against complainant and for his arrest, raid was conducted by him at the residence of complainant at District Faridabad. Being apprehensive of his arrest, the complainant wanted to derail the investigations. Being aware that police officials of Timarpur go and sit in the office of Sanjay, whom he also knew, Sanjay was made the victim, to get him falsely implicated. He has further stated that he had neither demanded any money from Munna Lal Gupta nor asked Sanjay to accept money for him or on his behalf. He had also not got Neelam to enter in the house of complainant at Jagatpur, as it was done at the instructions of the SHO. He further states that he has been falsely implicated for the aforesaid reasons, by Munna Lal Gupta.

(ii) Accused Sanjay Kumar has stated in his statement, u/s 313 Cr.P.C., that in order to implicate P.S. Bhardwaj, the complainant Munna Lal Gupta, who was also known to him and was aware that police officials of PS Timarpur come and sit in his office, when on round, as they have no place of their own to use, tried to CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 14 of 83 Special Judge, CBI­01, Central, Delhi get P.S. Bhardwaj falsely implicated, while trying to forcibly give the money to him and when he resisted, CBI officials gave beatings to him and forced him to make a call to P.S. Bhardwaj, who refused to talk to him and told him that he has not asked anybody to give money to him. He has further stated that he has been falsely implicated by the CBI.

14. The accused persons have also examined the following seven witnesses in their defence.

i) DW­1 Inspector Rajnish Parmar, of Delhi Police, from North West Zone, Delhi ;

ii) DW­2 HC Yogesh, MHC(M), PS Timarpur, New Delhi, who has proved the copy of DD No. 28A, dated 30.04.2011, as Ex.DW2/A and copy of DD No. 63­B, dated 30.04.2011, as Ex.DW.2/B.

iii) DW­3 HC Dinesh Kumar, from PCR, North Zone, Model Town, Delhi, who has proved the copy of FIR No. 186/2010, registered at PS Timarpur, as Ex.DW.3/A.

iv) DW­4 Sh. Gyan Chand, a resident of village Jagatpur, Delhi. CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 15 of 83 Special Judge, CBI­01, Central, Delhi

v) DW­5 Sh. Kuldeep Singh, another resident of village Jagatpur, Delhi.

vi) DW­6 Sh. Sandeep Kumar Sharma, who was working as Regional Technical Incharge (North), Sony India Pvt. Ltd., Mathura Road, New Delhi, and

vii) DW­7 HC Dushyant Singh, who was working as Care Taker / Incharge, at ACB, CBI, New Delhi.

15. After completion of trial, final arguments were addressed by Shri Praneet Sharma, Ld. PP for the CBI and Sh. Manoranjan Singh, Advocate, for both the accused persons. ARGUMENTS ON BEHALF OF THE CBI / PROSECUTION

16. It has been argued by the Ld. PP for the CBI that the complainant Munna Lal Gupta PW­7; shadow witness PW­11 Jaipal Singh; independent witness PW­12 Balram; Trap Laying Officer PW­9 S.P. Singh, Inspector CBI; and PW­14 Inspector CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 16 of 83 Special Judge, CBI­01, Central, Delhi Alok Kumar, have all deposed in a consistent manner and their depositions have proved the prosecution case beyond a shadow of doubt that accused Sanjay Kumar accepted a bribe of Rs. 80,000/­, from the complainant Munna Lal Gupta, on behalf of co­ accused P.S. Bhardwaj

17. The Ld. PP for the CBI has further argued that after the recovery of tainted GC notes worth Rs.80,000/­ from the possession of accused Sanjay, the hands of accused Sanjay were also got washed in solution of sodium carbonate in water and the hand wash of accused had also turned pink and this fact had indicated that the bribe amount of Rs.80000/­ was recovered from the possession of accused Sanjay. The CFSL report Ex.PW10/A has also proved that the hand wash solutions marked LHW­S, contained in bottle Ex.P­10/1 & RHW­S contained in bottle Ex.P­10/2 was containing phenolphthalein.

18. However, during the course of arguments, the Ld. PP for the CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 17 of 83 Special Judge, CBI­01, Central, Delhi CBI has conceded that during the course of trial, the call detail records of the mobile phones of the complainant, accused P.S. Bhardwaj and Sanjay, could not be proved in accordance with law, as the certificates under Section 65­B of the Indian Evidence Act, could not be proved, in accordance with law. He has further conceded that the CD, mark Q­1, containing the recorded conversations during the verification proceedings, dated 03.05.2011 and the CD, mark Q­2, containing the recorded conversations during the trap proceedings on 04.05.2011, were the secondary evidence and these CDs were prepared by inspector Alok Kumar and Inspector S.P. Singh, respectively, during the investigations of the case. But, none of these officers has given any certificate under Section 65­B of the Indian Evidence Act and therefore, these CDs also could not be proved in accordance with law.

19. The Ld PP for the CBI has further argued that even if the corroborative evidence, in the form of the recorded conversations CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 18 of 83 Special Judge, CBI­01, Central, Delhi and the call detail records are discarded, for want of the certificate under Section 65­B of the Indian Evidence Act, the oral testimonies of PW­7 Munna Lal Gupta; PW­9 Inspector S.P. Singh; PW­11 Jaipal Singh; PW­12 Balram and PW­14 Alok Kumar, Inspector is sufficient to prove the prosecution case beyond a shadow of doubt and therefore, both the accused be held guilty for the offences charged against them and be convicted accordingly.

20. The Ld. PP for the CBI has relied upon the following judgments, in support of his contentions :

(i) "Ram Chander Vs. State (Govt. of NCT of Delhi), reported as Criminal Appeal 461/2007";

(ii) "C.M. Sharma Vs. State of Andhra Pradesh, reported as, (2010) 15 Supreme Court Cases 1";

(iii) "Prithipal Singh & Ors vs. State of Punjab, reported as, (2012) 1 Supreme Court Cases 10;

(iv) "Namdev vs. Sate of Maharashtra, reported as, (2007) 14 Supreme Court Cases 150.

(v) "State of Bihar & Ors. vs. Rajmangal Ram, reported as AIR 2014 Supreme Court 1674;

CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 19 of 83 Special Judge, CBI­01, Central, Delhi

(vi) "State of M.P. Vs Bhooraji & Ors., reported as (2001) 7 SCC 679.

ARGUMENTS ON BEHALF OF THE ACCUSED PERSONS

21. Sh. Manoranjan, Advocate, the Ld. Defence counsel for accused persons has argued that the complainant was involved in various litigations with his daughter­in­law Neelam and the possession of the house of complainant Munna Lal Gupta was handed over by the SHO, PS Timarpur, to the daughter­in­law of complainant Smt. Neelam, due to which the complainant was annoyed with the police officials of PS Timarpur. He has further argued that Smt. Neelam, the daughter­in­law of complainant Munna Lal Gupta had lodged a complaint against the complainant and other accused persons, regarding her kidnapping from Delhi and a case FIR was registered at PS Timarpur, against the complainant Munna Lal Gupta, in which three anticipatory bail applications of the complainant had already been rejected by the sessions court and therefore, the complainant was having an apprehension of his arrest in the said case. He has further CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 20 of 83 Special Judge, CBI­01, Central, Delhi argued that accused PS Bhardwaj was the investigating officer in the said case and he had opposed the anticipatory bail applications of complainant Munna Lal Gupta and therefore, the complainant was annoyed with accused P.S. Bhardwaj.

22. The Ld. Defence counsel has further argued that Smt. Neelam, daughter­in­law of complainant Munna Lal Gupta had lodged a complaint regarding her kidnapping and a case was also registered in this regard at Uttar Pradesh. In the said case Smt. Neelam, daughter­in­law of complainant Munna Lal Gupta was confined by complainant Munna Lal Gupta in a farm house, owned by Ms. Bharti, his secretary. The U.P. Police was also investigating the said matter. Due to aforesaid facts and registration of various cases against him, the complainant was annoyed with the police officials and therefore, he lodged a motivated and false complaint against accused P.S. Bhardwaj.

23. The Ld. Defence counsel has further argued that accused P.S. CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 21 of 83 Special Judge, CBI­01, Central, Delhi Bhardwaj has not given any instructions to co­accused Sanjay, to accept any bribe amount, on his behalf, from the complainant Munna Lal Gupta. He has further argued that there is no admissible evidence on record against accused P.S. Bhardwaj or accused Sanjay, in this regard, except the alleged telephonic conversation between them. He has further argued that during the course of arguments the Ld. PP for the PP has already conceded that the recorded conversations contained in CD Mark Q­1 & Q­2 and the call details records of mobile phones of accused P.S. Bhardwaj, co­accused Sanjay and the complainant Munna Lal Gupta, could not be proved during the trial, in accordance with law. Therefore, these corroborative piece of evidence cannot be looked into by the court to corroborate the testimonies of the prosecution witnesses.

24. The Ld. Defence counsel has further argued that there are a large number of material contradictions in the oral depositions of complainant Munna Lal Gupta PW­7, the shadow witness PW­11 CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 22 of 83 Special Judge, CBI­01, Central, Delhi Jaipal Singh, independent witness PW­12 Balram and the other two police officials, namely, PW­9 Inspector S.P. Singh, TLO and PW­14 Inspector Alok Kumar, which makes their testimonies doubtful. The Ld. Defence counsel has cited several contradictions in the deposition of these witnesses, from the court record and has further argued that Sh. Naresh Kumar son of Munna Lal Gupta was also an eye witness of the alleged entire transaction and he had allegedly accompanied the complainant to the office of accused Sanjay when the alleged bribe money was demanded and accepted by co­accused Sanjay. But, he has neither been cited nor examined as a witness, during the trial, for the reasons best know to the CBI and its investigating officers.

25. The Ld. Defence counsel has also argued that the office of accused Sanjay was having aluminium and glass door, which was having black films, due to which, no person from outside the office could see the transaction taking place inside the office and therefore, the depositions of the prosecution witnesses, regarding CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 23 of 83 Special Judge, CBI­01, Central, Delhi giving of signal by the complainant to the independent witness or the CBI officials is highly improbable. The Ld. Defence counsel has also cited various contradictions in the depositions of the various prosecution witnesses in this regard.

26. Another contention of the Ld. Defence counsel has remained that PW­2 Ms. I.B. Rani, DCP North District Delhi was not competent to grant sanction for prosecution of accused P.S. Bhardwaj, as only the DCP (H.Q.) was competent to grant sanction for his prosecution and therefore, the sanction order Ex.PW2/A is illegal and is not a valid sanction.

27. The Ld. Defence counsel has further argued that the entire link evidence is also missing and there is no evidence regarding the deposition of the alleged hand wash solutions of accused Sanjay, at the Malkhana of the CBI or at the office of the CFSL. He has further argued that no record from the malkhana of the CBI has been produced in this regard. He has further argued that the CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 24 of 83 Special Judge, CBI­01, Central, Delhi officials who had deposited the various samples, containing the hand wash solutions and the alleged CDs, containing the alleged recorded conversations between the accused and the complainant, at the CFSL, have not been produced or examined during the trial. He has further argued that the GC notes, which were allegedly recovered from the drawer of accused Sanjay were never sealed and were never sent to the CFSL for expert opinion. He has further argued that even the alleged hand wash solutions of accused Sanjay were not pink in colour, when the same were produced before the court, during the trial.

28. The Ld. Defence counsel has argued that the discrepancies on record, as disclosed by him, makes the entire prosecution case doubtful and therefore, both the accused be acquitted for the offences alleged against them. He has relied upon the following judgments, in support of his above contentions :

(i) Prem Singh Yadav vs. CBI, reported as, 178 (2011) Delhi Law Times 529;

(ii) State of Haryana vs. Ram Singh, reported as, 2002 Law CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 25 of 83 Special Judge, CBI­01, Central, Delhi Suit (SC) 43;

(iii) State of Maharashtra Through CBI vs. Mahesh G. Jain, reported as, 2013 VI AD (SC) 458;

(iv) V. Venkata Subba Rao vs. State, reported as, AIR 2007 SC 489;

(v) C. M. Girish Babu vs. CBI, reported as, AIR 2009 Supreme Court 2022;

(vi) Suraj Mal vs. The State (The Delhi Administration), reported as, AIR 1979 SC 1408;

(vii) Prem Raj Meen vs. CBI, reported as, 2011 Law Suit (Del) 464;

(viii) Subhash Chand Chauhan vs. CBI, reported as, 117 (2005) Delhi Law Times 187.

OBSERVATIONS / FINDINGS

29. I have carefully perused the case file and I have given my considered thoughts to the arguments addressed by the Ld. PP for the CBI and the Ld. Defence counsels and I have also perused the various judgments, cited by them.

30. In order to prove the charges against the accused persons, the prosecution has examined the complainant Munna Lal Gupta as CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 26 of 83 Special Judge, CBI­01, Central, Delhi PW­7. The shadow witness Jaipal Singh has been examined as PW­11. The second independent witness Balram has been examined as PW­12. Inspector Alok Kumar, who had verified the complaint of complainant Munna Lal Gupta has been examined as PW­14. The trap laying officer, Inspector S.P. Singh, has been examined as PW­9.

31. Perusal of the testimony of complainant PW­7 Munna Lal Gupta indicates that the complainant has supported the prosecution case on all the material points and his oral testimony finds corroboration from the depositions of Inspector Alok Kumar PW­14, the trap laying officer Inspector S.P. Singh PW­9 and the shadow witness Jaipal Singh PW­11. All the aforesaid three witnesses have corroborated the oral testimony of PW­7 complainant Munna Lal Gupta on all the relevant and material points. However, the second independent witness, PW­12 Balram, has not supported the prosecution case entirely. There are some contradictions in his deposition from the oral testimony CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 27 of 83 Special Judge, CBI­01, Central, Delhi of the other aforesaid four witnesses. He was also cross­ examined by the Ld. PP for the CBI on some points.

32. Complainant, PW­7 Munna Lal Gupta, has reiterated and reaffirmed the contents of his complaint Ex.PW7/A, during his deposition before the court. He has categorically stated that on 30.04.2011, at about 04.12. pm., he received a phone call from SHO Police Station Timarpur, who informed him that he had put his son Dinesh and daughter­in­law Neelam, in possession of his house and he threatened him that, in case, he visited his house, he would break his neck. He has further stated that at the time of receiving the call he was driving towards Patiala House courts and on reaching the court, he informed the above facts to his advocate Vivek Kumar, who immediately faxed a complaint to the LG, DCP and the police commissioner.

33. Complainant, PW­7 Munna Lal Gupta, has further stated that on 01.05.2011, at about 3.42 p.m., he received an SMS from the CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 28 of 83 Special Judge, CBI­01, Central, Delhi phone of accused P.S. Bhardwaj, who directed him to meet him at 5 p.m. Thereafter, he met the accused P.S. Bhardwaj at Rama Book Store and during conversations, accused P.S. Bhardwaj told him that the SHO was unhappy with him, as he could not get anything from his property. Thereafter, accused P.S. Bhardwaj took him to Police Station Timarpur, where both of them appeared before the SHO and the SHO asked him to discuss the matter with accused P.S. Bhardwaj.

34. Complainant, PW­7 Munna Lal Gupta, has further deposed that on 02.05.2011, accused P.S. Bhardwaj again told him that the SHO was bothering him and therefore, he should talk to the SHO. On 03.05.2011, he told ASP Barikh of CBI that the pressure is being built on him and thereafter, Mr. Barikh asked him to give a written complaint, so that the matter may be investigated. Thereafter, he wrote the complaint Ex.PW7/A and handed over the same to Mr. Barikh.

CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 29 of 83 Special Judge, CBI­01, Central, Delhi

35. Complainant, PW­7 Munna Lal Gupta, has further deposed that he was having dispute with his daughter­in­law Neelam over his residential property bearing house No. 9, Gali No. 12, Jagatpura Extn, Delhi and suit No. 88/10 was pending before the court of Sh. Harun Pratap, Ld. Civil Judge, Delhi, and on 15.07.2010 stay order was passed in his favour by the court and on 16.10.2010, a copy of the said order was served at PS Timarpur. He has further stated that on 30.04.2011, his wife and guard Prem Shankar were present in the house and despite the stay orders of the court, SHO Police Station Timarpur and accused P.S. Bhardwaj, along with about 10 other police men came there and forcibly evicted his wife and the guard from the said property and put his daughter­in­law Neelam and his son Dinesh in possession of the property. The complainant had categorically stated that accused P.S. Bhardwaj had demanded Rs. 1 Lac for putting him back in possession of his aforesaid house.

CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 30 of 83 Special Judge, CBI­01, Central, Delhi

36. Complainant PW­7 Munna Lal Gupta has further stated that Mr. Barikh directed Mr. Alok Kumar, Inspector, to investigate his complaint, on which, Mr. Alok Kumar arranged for a digital voice recorder and thereafter, he along with PW Jaipal, Inspector Alok Kumar and the driver of the CBI, reached PS Timarpur and thereafter, he made a phone call to accused P.S. Bhardwaj to find out his whereabouts, on which, the accused P.S. Bhardwaj told him that he was in the High Court and would reach there within half an hour. On making another call, after about half an hour, accused P.S. Bhardwaj told him that he was in PS Timarpur and he should come inside. The complainant has categorically stated that the DVR was kept by him near his mobile phone and his mobile phone was kept on loudspeaker mode, when he made phone calls to accused P.S. Bhardwaj. The complainant has further deposed that the DVR was kept by him in his pocket & when he went inside the police station, during conversations, accused P.S. Bhardwaj finally asked him "ek lakh rupaye nahi leke aaye". The complainant has further stated categorically that CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 31 of 83 Special Judge, CBI­01, Central, Delhi accused P.S. Bhardwaj has told him that the SHO had asked for Rs. 1 Lac. Thereafter, he told the accused that he was not having enough money, on which, he asked him to arrange the money in one or two days.

37. It is further stated by the Complainant, PW­7 Munna Lal Gupta that the conversations, which were recorded during the verification of his complaint, had established the demand of bribe and therefore, it was decided to lay the trap and the CBI officials had asked him to bring the bribe amount of Rs. 1 Lac on 04.05.2011. But, he told them that he was having a sum of Rs. 80,000/­ only, with him.

38. Complainant, PW­7 Munna Lal Gupta has further deposed that on 04.05.2011, he reached the CBI office with the bribe amount of Rs.80,000/­, where he was informed that the FIR has been registered and a copy of the FIR Ex.PW9/A was handed over to him. He has further deposed that Inspector S.P. Singh introduced CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 32 of 83 Special Judge, CBI­01, Central, Delhi him to the two independent witnesses, namely, Jaipal and Balram and the amount of Rs.80,000/­ was handed over to Inspector S.P. Singh by him. Thereafter, independent witness smeared a white powder on the GC notes and thereafter, independent witness Balram (PW­12) was asked to touch the GC notes and thereafter, a colourless solution of sodium like substance was prepared in water and thereafter, Balram was asked to dip his fingers in it. On doing so, the solution turned pink in colour. Thereafter, the significance of the said reaction was explained by Inspector S.P. Singh and thereafter, Balram was asked to wash his hands with soap. The complainant has further stated that the tainted GC notes were kept by PW­11 Jaipal Singh, in his right side pant pocket and he was instructed by Inspector S.P. Singh, not to touch the bribe amount and to give the same to accused P.S. Bhardwaj, on his demand. Thereafter, he was directed to make a phone call to accused P.S. Bhardwaj and during the conversation, accused P.S. Bhardwaj asked him to meet him at the shop of co­ accused Sanjay. The said conversation was again recorded on CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 33 of 83 Special Judge, CBI­01, Central, Delhi the Sony DVR.

39. Complainant, PW­7 Munna Lal Gupta has further deposed that before leaving the CBI office, all the trap team members had washed their hands with soap and dried their hands with handkerchief and they mutually searched each other to ensure that nothing incriminating was there on any member of the raiding party. Witness Jaipal Singh (PW­11) was instructed to stay with him, while other independent witness Balram (PW­12) was asked to stay with other team members. He has further deposed that PW­11 Jaipal Singh was instructed to give a signal by rubbing his hand over his head, as soon as the accused accepts the tainted GC notes from the complainant. Complainant was also instructed to wipe his face with his hands, to give a signal to independent witness Jaipal, who in turn, would give the signal to the trap party.

40. Complainant, PW­7 Munna Lal Gupta has further deposed that he along with the CBI team left the CBI Office at about 1.30 p.m. CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 34 of 83 Special Judge, CBI­01, Central, Delhi and reached the office of co­accused Sanjay at about 2.45 p.m. and the trap team members took their respective positions near his shop. Thereafter, he along with his son Naresh went inside the shop of co­accused Sanjay, while PW­11 Jaipal stood outside the glass door of the shop. He has further stated that accused Sanjay told him that accused P.S. Bhardwaj has gone to apprehend the sand trolley and therefore, he should hand over the money to him. On which, he told that he was coming straight from court and he had not had his lunch and therefore, he would take his lunch and then come back to pay the money to him. The complainant has further deposed that he came out of the office and told these developments to TLO PW­9 Inspector SP Singh, who asked him to ring accused P.S. Bhardwaj again and to ask him whether the payment was to be made to Sanjay or not. The complainant had categorically stated that before entering the office of accused Sanjay, PW­14 Inspector Alok Kumar had again handed over a DVR, which was tugged inside his shirt in 'switch on' mode.

CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 35 of 83 Special Judge, CBI­01, Central, Delhi

41. Complainant, PW­7 Munna Lal Gupta has further deposed that after coming out of the office of accused Sanjay, he rang up accused P.S. Bhardwaj, as per the directions of TLO, PW­9 Inspector S.P. Singh. But, the accused did not pick up the phone and shortly thereafter, he called him back and instructed him to hand over the bribe amount to accused Sanjay and thereafter, at about 3.30 p.m., they all returned back to the shop of accused Sanjay and he along with his son Naresh again entered the shop, while PW­11 Jaipal stood immediately outside the glass door. Thereafter, he told accused Sanjay that he had talked to accused P.S. Bhardwaj, who had directed him to make the payment to him. On which, accused Sanjay extended his right hand towards him, on which, the tainted GC notes were handed over to accused Sanjay by him, who accepted the same with his right hand. Thereafter, accused Sanjay transferred the money to his left hand and put it in the table drawer. Thereafter, complainant wiped his face with his hand and the same was seen by PW­11 Jaipal and CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 36 of 83 Special Judge, CBI­01, Central, Delhi thereafter, PW­11 Jaipal gave further signal to the trap team members by rubbing his hand over the head and thereafter, inspector S.P. Singh (PW­9) and Pramod Kumar rushed inside the shop and caught hold of accused Sanjay by his wrists. Thereafter, the other team members and independent witnesses also came inside the shop and thereafter, he informed the CBI officials that the accused Sanjay had kept the bribe amount in the drawer. Thereafter, on the directions of TLO PW­9 S.P. Singh, PW­12 Balram recovered the tainted GC notes from the drawer.

42. Complainant, PW­7 Munna Lal Gupta has further deposed that during the trap proceedings, a mineral water bottle was brought and a solution was prepared by putting chemical and water in a glass and thereafter, the right hand of accused Sanjay was dipped in it, on which, the solution had turned pink in colour. The said solution was poured in an empty glass bottle and thereafter, this process was repeated with his left hand. He has further deposed that the hand wash solutions were poured in empty CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 37 of 83 Special Judge, CBI­01, Central, Delhi glass bottles and paper slips were pasted on these bottles, which were marked as RHWS & LHWS. These slips were signed by Inspector SP Singh and two independent witnesses, besides him. These bottles were also sealed with the seal of the CBI. The bottles containing the hand wash solutions have been proved on record as Ex.PW10/1 & Ex.PW10/2.

43. Complainant, PW­7 Munna Lal Gupta has further deposed that after recovery of the tainted bribe amount from the table drawer of accused Sanjay, both the independent witnesses were asked to tally the numbers of the GC notes with the handing over memo, on which, the numbers were found to be the same, as mentioned in the handing over memo. Thereafter, the recovered bribe money was kept in a brown envelope in a polythene bag separately. The GC notes have been proved on record as Ex.P7/1 to Ex.P7/124.

44. It is pertinent to mention here that during investigations, the CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 38 of 83 Special Judge, CBI­01, Central, Delhi complainant had produced a total of 116 currency notes, out of which 44 GC notes were of Rs.1,000/­ denomination each and the remaining 72 GC notes were of Rs.500/­ denominations. The numbers of these GC notes were duly noted down in the handing over memo Ex.PW.9/B. These GC notes were allegedly recovered from the table drawer of accused Sanjay and were produced before the court, during the trial, during the examination of complainant, PW­7 Munna Lal Gupta and were proved on record as Ex.P­7/1 to Ex.P­7/124. The numbers of exhibits indicate that a total of 124 GC notes were produced before the Court. Therefore, this court had requisitioned these GC notes, for its' perusal, on observing the above anamoly, during perusal of the file, after completion of the final arguments. When these GC notes Ex.P­7/1 to Ex.P­7/124, were produced before the court on 17.11.2015, it was observed that there were only 116 GC notes, as mentioned in the handing over memo and their numbers and denominations had also tallied with the numbers mentioned in the handing over memo. Clarifications, in this regard, were sought CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 39 of 83 Special Judge, CBI­01, Central, Delhi from the Ld. PP for the CBI, who had clarified that the anamoloy in mentioning the exhibit numbers on the recovered GC notes was a clerical and typographical error and not much weightage be given to this anamoly as the numbers and denominations of the recovered GC notes were again examined in the court on 08.05.2013, when these GC notes were exhibited. At that time also, the numbers and denominations of the recovered GC notes had tallied with the numbers and the denominations of the GC notes mentioned in the handing over memo Ex.PW.9/B and only thereafter, the exhibit numbers were put on the envelope containing the GC notes. He has further pointed out that, in case, a total of 124 GC notes were produced before the Ld. Presiding Officer on 08.05.2013, then the Ld. Presiding Officer, would have observed and mentioned this anamoloy in the order sheet on 08.05.2013 itself. In the considered opinion of this court, the clarification given by the Ld. PP for the CBI are worthy of merit and it appears that there was only a clerical error in mentioning the exhibit numbers on these GC notes. There were only 116 GC CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 40 of 83 Special Judge, CBI­01, Central, Delhi notes, worth Rs.80,000/­ only and these notes have been inadvertently marked as Ex.P­7/1 to Ex.P.7/124, instead of Ex.P­7/1 to Ex.P­7/116 only, due to clerical and typographic error.

45. The shadow witness, PW­11 Jaipal Singh has also categorically stated that the complaint Ex.PW.7/A was shown to him at the CBI office and the complainant also told him that accused P.S. Bhardwaj was demanding a sum of rupees one lacs from him for restoring the possession to him, which was taken away by the police officials and handed over to his daughter­in­ law. He has also stated that the complaint of the complainant was duly verified and the conversations between the complainant and the accused were also recorded during the verification process. He has categorically stated that the conversations were heard by them, through inbuilt loudspeaker of the mobile of the complainant, which was put on 'switch on' mode. He has also deposed that the accused P.S. Bhardwaj had asked the complainant to come to Police Station Timarpur and accordingly, CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 41 of 83 Special Judge, CBI­01, Central, Delhi they had reached Police Station Timarpur and complainant had went inside the Police Station to meet the accused. He has further stated that to ensure the presence of accused P.S. Bhardwaj in the Police Station, the complainant was asked to make a phone call to him and during conversations, the accused P.S. Bhardwaj told complainant Munna Lal Gupta that he was at High Court and will be reaching Police Station Timarpur, after sometime. He has further stated that the said conversation was also heard as loudspeaker of the mobile phone of the complainant was on 'switch on' mode. He has further stated that complainant Munna Lal Gupta went inside PS Timarpur to meet accused P.S.Bhardwaj and after sometime, he returned back and told them that accused P.S. Bhardwaj had demanded a sum of rupees one lac for restoring possession of his house to him. He has categorically stated that the recorded conversations were heard by them and the same had reveled that accused P.S. Bhardwaj had demanded rupees one lac from the complainant, which he had to hand over to SHO PS Timarpur. He has further stated that CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 42 of 83 Special Judge, CBI­01, Central, Delhi accused P.S. Bhardwaj had told the complainant to bring the bribe amount on the same day or the next day.

46. PW­11 Jaipal Singh has further stated that on 04.05.2011, he again went to CBI office, where the complainant told the trap laying officer that he could manage only rupees eighty thousand and thereafter, a DVR was arranged and after ensuring its emptiness, his introductory voice and introductory voice of PW­12 Balram were recorded. He has further stated that Inspector S.P.Singh had decided that the complainant should make phone call to accused P.S.Bhardwaj and accordingly, a phone call was made to P.S.Bhardwaj to fix the place of handing over of the bribe amount. He has categorically stated that during conversations, it was revealed that accused P.S. Bhardwaj had asked the complainant to visit the office of co­accused Sanjay at S.K. Properties, at Jagatpur Extension.

47. PW­11 Jaipal Singh has further deposed that Inspector CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 43 of 83 Special Judge, CBI­01, Central, Delhi S.P.Singh had constituted the trap team and the numbers of the GC notes, produced by the complainant, were noted down on a plain paper and a demonstration was given to the team members, in which, it was demonstrated that if a person touches the powder smeared GC notes and that portion of his finger is dipped in a solution, then the same turns pink and it indicates that the said person has touched the tainted GC notes.

48. PW­11 Jaipal Singh has further deposed that the GC notes were treated with the white powder and the same were kept by him in the right side pant pocket of the complainant, after ensuring that nothing was there in the pocket of the complainant. The complainant was instructed, not to touch the GC notes, until and unless a demand was made by accused P.S. Bhardwaj. It was further instructed that the complainant and his son would go to meet accused P.S. Bhardwaj and would hand over the bribe amount to him. The DVR was also given to the complainant for recording the conversation and he was further instructed to give a CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 44 of 83 Special Judge, CBI­01, Central, Delhi signal by rubbing his face, as soon as the transaction of bribe was completed.

49. PW­11 Jaipal Singh has further deposed that on reaching the spot, the complainant was instructed to meet accused P.S. Bhardwaj at S.K. Properties with the DVR. The complainant went inside the S.K. Properties, but came back without giving any signal and told that accused P.S. Bhardwaj was not there. He further told that accused Sanjay, who was inside the said office, had told him to hand over the bribe amount to him as accused P.S. Bhardwaj had instructed him to do so. He further told that he had come out of the office on the pretext of having lunch. Thereafter, the complainant made a phone call to accused P.S. Bhardwaj to verify whether he should pay the bribe amount to accused Sanjay, on which, accused P.S. Bhardwaj told the complainant to hand over the bribe amount to accused Sanjay. Thereafter, the complainant and his son went inside the S.K. Properties again and he himself took the position in front of the CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 45 of 83 Special Judge, CBI­01, Central, Delhi shop, from where, he could see the transaction. This witness had further stated that accused Sanjay took the bribe amount from the complainant and kept the same in the table­drawer and thereafter, the complainant gave a pre­appointed signal, on which, the CBI team reached the spot and Inspector Pramod Kumar and Inspector S.P.Singh apprehended accused Sanjay, by holding his wrist. Thereafter, PW­12 Balram was asked to recover the bribe amount and he recovered the bribe amount from the table drawer of accused Sanjay. Thereafter, he along with PW­12 Balram tallied the numbers of the GC notes with the handing over memo and the numbers of the recovered GC notes had tallied. This witness has further deposed that the DVR was taken back from the complainant and was switched off and thereafter, the hands of accused Sanjay were dipped in a colorless solutions, prepared by the CBI officials and both the handwashes of accused Sanjay had turned pink. He has further deposed that these pink solutions were poured in separate glass bottles and were duly sealed with the seal of the CBI and white paper slips CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 46 of 83 Special Judge, CBI­01, Central, Delhi were pasted on the bottles, on which, he and PW­12 Balram had signed. He has further deposed that two policemen of Delhi Police were also present there, at that time and their signatures were also obtained on the memos, which were prepared by the CBI officials.

50. PW­14 Inspector Anil Kumar Singh has also categorically stated that on 03.05.2011, SP Sumit Saran called him to his chamber and handed over the complaint of Munna Lal Gupta, dated 03.05.2011 and marked the same to him for verification. He has further stated that for the purpose of verification, presence of one independent witness, namely, PW­11 Jaipal Singh, Assistant from Bureau of Indian Standard, was secured through duty officer and he was shown the complaint and was explained the purpose of verification of the complaint. Thereafter, a digital voice recorder, make Sony, along with compact disc was arranged through care taker of the office and the functioning of the DVR was explained to independent witness Jaipal Singh and CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 47 of 83 Special Judge, CBI­01, Central, Delhi complainant Munna Lal Gupta. Thereafter, introductory voice of the independent witness was recorded in the DVR and thereafter, they went to police station Timar Pur, to meet accused SI P.S. Bhardwaj.

51. PW­14 Inspector Alok Kumar Singh has further deposed that on reaching near the police station, he directed the complainant to make a phone call to accused P.S. Bhardwaj on his mobile phone, to ascertain his location, on which, accused P.S. Bhardwaj informed him that he was in High Court and will reach police station Timar pur within half an hour. This conversation was heard by all of them as the phone of the complainant was on loudspeaker mode. The conversation was also recorded in the DVR. After some time, complainant was directed to make a fresh phone call to SI P.S. Bhardwaj, on which, the accused told him that he had reached police station Timarpur. Thereafter, the DVR was handed over to the complainant in switch on mode and was put in his left side shirt pocket and thereafter, the complainant CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 48 of 83 Special Judge, CBI­01, Central, Delhi went inside the police station and after some time, he returned back and told him that accused P.S. Bhardwaj had demanded a bribe of Rs.1,00,000 and had asked him to hand over the amount to him, today itself or tomorrow. Thereafter, the CBI team returned to the CBI office and the recorded conversations were played in the presence of independent witness, which confirmed the demand of Rs.1,00,000/­ from accused P.S. Bhardwaj. Thereafter, the recordings contained in the DVR were transferred to a blank compact disc with the help of the official laptop and the same was marked as 'Q­1'.

52. After verification of the complaint, PW­14 Inspector Alok Kumar Singh prepared a verification memo on 03.05.2011, Ex.PW7/B and submitted his report to his SP on 04.05.2011 and thereafter, he was directed to assist Inspector S.P. Singh in laying the trap.

53. PW­9 Inspector S.P. Singh, the trap laying officer, has also given a consistent and trustworthy narration of the entire trap CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 49 of 83 Special Judge, CBI­01, Central, Delhi proceedings and has corroborated the deposition of the complainant PW­7 Munna Lal Gupta and the independent witness PW­11 Jaipal Singh. He has also deposed that on 04.05.2011, he was called by the then SP Sh. Sumit Saran and was entrusted with the investigations of the this case and copy of the FIR along with the complaint of the complainant and the verification memo, dated 03.05.2011, was also handed over to him. He has further deposed that after going through the documents, he arranged for two independent witnesses, namely, Jaipal Singh (PW­11) and Balram (PW­12), through the duty officer of the branch, from the office of Bureau of Indian Standards, Manak Bhawan, Bahadur Shah Zaffar Marg, New Delhi. Thereafter, a trap team consisted of Inspector Pramod Kumar, Inspector Anil Bisht, SI Alok Kumar, the complainant and the independent witnesses, was constituted. Thereafter, he briefed the trap team about the complaint of the complainant and the numbers of the GC notes worth Rs.80,000/­, produced by the complainant as bribe money, were noted down in the memo prepared, after completion of the pre­trap proceedings. CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 50 of 83 Special Judge, CBI­01, Central, Delhi Thereafter, SI Alok Kumar was directed to smear the phenolphthalein powder on the GC notes and independent witness Balram was asked to touch the GC notes and thereafter, he dipped his fingers in the colourless solution of sodium carbonate, prepared by SI Alok Kumar. On doing so, the colour of the solution had turned pink. The said solution was thrown away. The remaining phenolphthalein powder was returned to the malkhana and the significance of the reaction of the phenolphthalein powder with the solution of sodium carbonate was explained to all the trap team members. Thereafter, the bribe amount of Rs.80,000/­, which was smeared with phenolphthalein powder, was handed over to complainant Munna Lal Gupta and he was instructed not to touch the GC notes, unless demanded by the accused or by any other person, on his behalf. Thereafter, a DVR and blank CD were arranged for the purpose of recordings of the conversations. After ensuring its blankness the introductory voices of both the independent witnesses were recorded. Thereafter, it was handed over to the CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 51 of 83 Special Judge, CBI­01, Central, Delhi complainant with the instructions to switch on the same, when he goes to meet the accused. Thereafter, all the team members washed their hands with soap and independent witness Jaipal was asked to act as a shadow witness.

54. PW­9 Inspector S.P. Singh, has further deposed that the trap team reached the shop of accused Sanjay, a property dealer, at S.K. Properties, at about 3.00 p.m. and thereafter, the complainant and his son was instructed to go inside the office of accused Sanjay. He has further stated that after visiting the office of accused Sanjay, the complainant came back and told him that accused P.S. Bhardwaj was not available in the office of accused Sanjay. However, the accused Sanjay had asked him to leave the bribe amount with him. The complainant further told him that he had not handed over the bribe amount to accused Sanjay and he had come back with an excuse that he will come back after taking the food. The complainant was again instructed to talk to accused P.S. Bhardwaj, after about 20­30 minutes and during the CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 52 of 83 Special Judge, CBI­01, Central, Delhi conversations, the accused P.S. Bhardwaj told him that he was busy in some other work and the complainant can hand over the bribe amount to accused Sanjay. This conversation was also heard by the members of the trap team and was also recorded in the DVR. Thereafter, the complainant and his son went inside the office of accused Sanjay at S.K. Properties and witness Jaipal Singh also accompanied them as shadow witness. After 2­3 minutes, son of the complainant came out of the office and gave a pre­decided signal by scratching his head by his hands and thereafter, the other trap team members reached there and went inside the office of S.K. Properties and apprehended the accused Sanjay.

55. PW­9 Inspector S.P Singh has further deposed that the hand washes of Sanjay were taken in the colourless solution of sodium carbonate and on doing so, the solutions had turned pink. The solutions were poured in clean empty glass bottles and were sealed with the CBI seal. Thereafter, the witness Balram was CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 53 of 83 Special Judge, CBI­01, Central, Delhi asked to recover the bribe amount and he recovered the same from the office table drawer of accused Sanjay. Thereafter, both the witnesses were asked to tally the GC notes with the handing over memo Ex.PW9/B and after tallying the same the witnesses confirmed that these are the same GC notes, which were handed over by the complainant during the pre trap proceedings. He has further deposed that at that time two Delhi Police officials, namely, HC Prem Chand and Ct. Pushpender were also present there and they were also asked to associate them and to remain present during the post trap proceedings.

56. PW­14 Inspector Alok Kumar Singh and PW­9 Inspector S.P.Singh have both given a similar narration of the incidents, pertaining to the preparations for the trap and the trap proceedings. However, a few contradictions have come on record, in their cross­examinations, regarding the signal given by the complainant or the independent witness, after the completion of the bribe transaction and after handing over of the bribe CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 54 of 83 Special Judge, CBI­01, Central, Delhi amount by the complainant to accused Sanjay. But, in the considered opinion of this court, these contradictions are not fatal to the prosecution case, as such kind of minor contradictions are bound to occur during the cross­examination of the witnesses, when the witnesses depose in the court in consistent manner and that too, after a gap of several years.

57. It has been held by the Hon'ble Supreme Court in case titled "Prem Singh Yadav vs. CBI, reported as, 2002 Law Suit (SC) 43 ", as under :­

7. Before proceeding to see the veracity of the testimony of this witness, in the light of the testimonies of other witnesses, namely PW3, PW5 and PW6 and to see as to whether the discrepancies as pointed out by learned Counsel were material as alleged by him or insignificant as submitted by learned Counsel for the prosecution, it may be appropriate to refer to the judgment in the case of Zamir Ahmed v. State, 1996 Crl. Law Journal 2354. with regard to the discrepancies, it was observed by the Division Bench of this Court that :

"It would be a hard not to crack to find out a case which is bereft of embellishment, exaggeration, contradictions and inconsistencies. The said things are natural. Such CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 55 of 83 Special Judge, CBI­01, Central, Delhi contradictions and inconsistencies are bound to creep in with the passage of time. If the witnesses are not tutored, they would come out with a natural and spontaneous version on their own. The two persons on being asked to reproduce a particular incident which they have witnessed with their own eyes would be unable to do so in like manner. Each one of them will narrate the same in his own words, according to his own perception and in proportion to his intelligence power of observation."

(emphasis supplied by me)

58. It is also held by the Hon'ble Supreme Court, in case titled as "C.M. Sharma Vs. State of Andhra Pradesh (supra), as under :­

18. Further, corroboration of evidence of a witness is required when his evidence is not wholly reliable. On appreciation of evidence, witnesses can be broadly categorised in three categories viz. unreliable, partly reliable and wholly reliable. In case of a partly reliable witness, the court seeks corroboration in material particulars from other evidence. However, in a case in which a witness is wholly reliable, no corroboration is necessary. Seeking corroboration in all circumstance of the evidence of a witness forced to give bribe may lead to absurd result. Bribe is not taken in public view and, therefore, there may CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 56 of 83 Special Judge, CBI­01, Central, Delhi not be any person who could see the giving and taking of bribe. As in the present case, a shadow witness did accompany the contractor but the appellant did not allow him to be present in the chamber. Acceptance of this submission in abstract will encourage the bribe­taker to receive illegal gratification in privacy and then insist for corroboration in case of prosecution. Law cannot countenance such a situation.

19. In our opinion it is not necessary that the evidence of a reliable witness is necessarily to be corroborated by another witness. Not only this corroboration of the evidence of a witness can be found from the other materials on record. Here in the present case there does not seem any reason to reject the evidence of the Contractor PW 1, M. Venka Reddy. His evidence is further corroborated by the evidence of the shadow witness PW2, G.T. Kumar. The shadow witness has stated in his evidence that when he entered into the chamber, the appellant was asked by the Inspector as to whether he had received any amount from the contractor, he denied and then removed the currency notes from his trouser pocket and threw the same. He has further stated that sodium carbonate test was conducted in which the solution turned pink when the appellant's fingers and the right side trouser pocket were rinsed. From the aforesaid one can safely infer that the evidence of the contractor is corroborated in material particulars by the shadow witness.

(emphasis supplied by me) CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 57 of 83 Special Judge, CBI­01, Central, Delhi

59. It is also held by the Hon'ble Supreme Court in case titled as "Prithipal Singh And Others vs. State of Punjab And Another, (Supra), as under :­ "49. This Court has consistently held that as a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act. But if there are doubts about the testimony, the court will insist on corroboration. In fact, it is not the number or the quantity, but the quality that is material. The time­honoured principle is that evidence has to be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. The legal system has laid emphasis on value, weight and quality of evidence, rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence. (See Vadivelu Thevar v. State of Madras, Sunil Kumar v. State (Govt. of NCT of Delhi), Namdeo v. State of Maharashtra and Bipin Kumar Mondal v. State of W.B.) (emphasis supplied by me) CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 58 of 83 Special Judge, CBI­01, Central, Delhi

60. The oral testimonies of these four witnesses have established on record, beyond a shadow of doubt, that accused P.S. Bhardwaj was demanding a bribe of a sum of rupees one lac, from the complainant, on the pretext that the said amount was to be paid by him to the SHO P.S. Timarpur, for the purpose of handing over of the possession of his to him. The oral testimonies of these four witnesses have also established on record that accused P.S.Bhardwaj has directed the complainant to hand over the bribe amount to his co­accused Sanjay and accordingly, the said bribe amount was handed over by the complainant to accused Sanjay at his office at S.K. Properties, Jagatpur Extension, on 04.05.2011. Their testimonies have also established on record, beyond a shadow of doubt, that accused Sanjay received the bribe amount of Rs.80,000/­, from the complainant, on behalf of accused P.S. Bhardwaj.

61. The testimonies of the aforesaid four witnesses finds CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 59 of 83 Special Judge, CBI­01, Central, Delhi corroboration from the CFSL report. PW­10 Shri V.B.Ramtek has proved his report as Ex.PW10/A. He has categorically stated that vide letter No. DAI­2011­A­0002 /DLI/5318, dated 09.05.2011 of SP/CBI/ACB/New Delhi, two sealed bottles were forwarded for chemical examination, in CFSL, New Delhi, on 09.05.2011. The seals of these bottles were intact and were tallied with the specimen seal impression, which was forwarded with the said letter. These exhibit bottles were marked as RHW­S and LHW­S. He had categorically stated that the contents of these bottles were examined by him and the same were found containing phenolphthalein. The bottles LHW­S and RHW­S have been duly proved on record as Ex.P10/1 & Ex.P10/2, respectively.

62. Perusal of the record further shows that during the process of verification of the complaint on 03.05.2011 and the trap proceedings on 04.05.2011, a DVR was used by the complainant, which was handed over to him by the CBI officials, for recording of his telephonic conversations with accused P.S. Bhardwaj. CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 60 of 83 Special Judge, CBI­01, Central, Delhi These recordings were duly transferred to the C.D.s mark Q­1 and Q­2. But, these C.D.s could not be proved, during the trial, in accordance with law, as no certificate u/s 65 B of the Indian Evidence Act was furnished by the officials, who prepared these C.D.s from the DVR. Inspector Alok Kumar Singh has prepared the CD mark Q­1, pertaining to the recorded conversations, during the verification process on 03.05.2011, whereas, Inspector S.P.Singh, Trap Laying Officer has prepared the CD, mark Q­2, regarding the conversations recorded during the trap laying proceeding. Admittedly, these C.D.s were prepared by transferring the recorded conversations from the DVR to the laptop of these two CBI officials and were accordingly, a secondary piece of evidence.

63. It has been held by the Hon'ble Supreme Court, in case titled as, "Anvar P.V. Vs. P.K. Basheer, reported as MANU/SC/0834/2014", as under :­

13. Any documentary evidence by way of an electronic CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 61 of 83 Special Judge, CBI­01, Central, Delhi record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed Under Section 65B. Section 65B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. It may be noted that the Section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions mentioned Under Sub­section (2) are satisfied, without further proof or production of the original. The very admissibility of such a document, i.e., electronic record which is called as computer output, depends on the satisfaction of the four conditions Under Section 65B(2). Following are the specified conditions Under Section 65B(2) of the Evidence Act :

(i) The electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer;

(ii) The information of the kind contained in electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity;

CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 62 of 83 Special Judge, CBI­01, Central, Delhi

(iii) During the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents; and

(iv) The information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity.

14. Under Section 65B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied :

(a) There must be a certificate which identifies the electronic record containing the statement;

(b) The certificate must describe the manner in which the electronic record was produced;

(c) The certificate must furnish the particulars of the device involved in the production of that record;

(d) The certificate must deal with the applicable conditions mentioned Under Section 65B(2) of the Evidence Act; and

(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.

15. It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, Compact Disc (CD), Video Compact Disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 63 of 83 Special Judge, CBI­01, Central, Delhi these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice.

16. Only if the electronic record is duly produced in terms of Section 65B of the Evidence Act, the question would arise as to the genuineness thereof and in that situation, resort can be made to Section 45A ­ opinion of examiner of electronic evidence.

17. The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements Under Section 65B of the Evidence Act are not complied with, as the law now stands in India.

18. It is relevant to note that Section 69 of the Police and Criminal Evidence Act, 1984 (PACE) dealing with evidence on computer records in the United Kingdom was repealed by Section 60 of the Youth Justice and Criminal Evidence Act, 1999. Computer evidence hence must follow the common law rule, where a presumption exists that the computer producing the evidential output was recording properly at the material time. The presumption can be rebutted if evidence to the contrary is adduced. In the United States of America,, under Federal Rule of Evidence, reliability of records normally go to the weight of the evidence and not to admissibility.

19. Proof of electronic record is a special provision CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 64 of 83 Special Judge, CBI­01, Central, Delhi introduced by the IT Act amending various provisions under the Evidence Act. The very caption of Section 65A of the Evidence Act, read with Sections 59 and 65B is sufficient to hold that the special provisions on evidence relating to electronic record shall be governed by the procedure prescribed Under Section 65B of the Evidence Act. That is a complete code in itself. Being a special law, the general law Under Section 63 and 65 has to yield.

......................

22. The evidence relating to electronic record, as noted herein before, being a special provision, the general law on secondary evidence Under Section 63 read with Section 65 of the Evidence Act shall yield to the same. Generalia special bus non derogant, special law will always prevail over the general law. It appears, the court omitted to take note of Sections 59 and 65A dealing with the admissibility of electronic record. Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65A and 65B. To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this Court in Navjot Sandhu case (supra), does not lay down the correct legal position.

It requires to be overruled and we do so. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements Under Section 65B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 65 of 83 Special Judge, CBI­01, Central, Delhi the secondary evidence pertaining to that electronic record, is inadmissible.

(emphasis supplied by me)

64. As the recorded conversations contained in the CDs mark Q­1 and Q­2 could not be proved during the trial, in accordance with law, these C.D.s cannot be considered by the court, for the purposes of corroboration of the testimonies of the complainant, regarding his conversations with accused P.S. Bhardwaj. Similarly, the call detail records, produced on record, during the trial, regarding the call details of the mobile phones of the complainant and the accused persons, could not be proved, in accordance with law, as the required certificate Under Section 65­ B of the Indian Evidence Act, could not be proved, during the trial. Therefore, these call detail records are also of no use, to corroborate the prosecution case. But, the oral testimonies of complainant PW­7 Munna Lal Gupta, PW­11 Jaipal Singh, PW­14 Inspector Alok Kumar Singh and PW­9 Inspector S.P.Singh, have proved the prosecution case, beyond a shadow of doubt. CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 66 of 83 Special Judge, CBI­01, Central, Delhi

65. Another objection of the Ld. Defence counsel has remained regarding the sanction granted by PW­2 Ms. I.B.Rani, DCP, North District, under section 19 of The Prevention of Corruption Act, 1988, for the prosecution of accused SI P.S. Bhardwaj for the offences, punishable under section 7 & 13 (2), read with Section 13 (1)(d) of The Prevention of Corruption Act, 1988. The Ld. Defence counsel has challenged the competence of PW­2 Ms. I.B.Rani, DCP, North District to grant the sanction for prosecution of accused SI P.S. Bhardwaj, on the ground that only the DCP (Headquarter) was the competent person to grant sanction for his prosecution. But, I do not find any merit in this submission also.

66. As per the provision of Section 12 of Delhi Police Act, 1978, the sub­inspectors of police and other officers of subordinate rank can be appointed by the Deputy Commissioners of Police, Additional Deputy Commissioners of Police of any other police officer of equivalent rank. The said provisions are reproduced CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 67 of 83 Special Judge, CBI­01, Central, Delhi below for ready reference as under:

12. Appointment of subordinate ranks. Subject to such general or special orders in writing as the Administrator may make in this behalf,­

(a) Inspectors of Police may be appointed by the Additional Commissioner of Police; and

(b) Sub­Inspectors of Police and other officers of subordinate rank may be appointed by the Deputy Commissioners of Police, Additional Deputy Commissioners of Police, Principal of the Police Training College or of the Police Training School, or any other police officer of equivalent rank.

67. From the above provisions, it is clear that an officer of the rank of Sub Inspectors of Police may be appointed by the Dy. Commissioner of Police and it was not necessary that the DCP (Head Quarter) only shall appoint such officers and therefore, it cannot be said that only the DCP (HQ) was the competent person to remove sub inspectors of police from service.

68. In the present case, the DCP (Headquarter), as well as PW­2 Ms. I.B.Rani, DCP, North District, are the officers of the same CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 68 of 83 Special Judge, CBI­01, Central, Delhi designation and the same rank. Furthermore, accused SI P.S. Bhardwaj was working in North District, at the time of the trap, under the control of PW­2 Ms. I.B.Rani, DCP, North District and therefore, the sanction order Ex.PW2/A, passed by PW­2 Ms. I.B. Rani, DCP North District, cannot be held as invalid or illegal on the ground that DCP North District was not competent to grant sanction for his prosecution.

69. In view of the above discussion, this court is of the considered opinion that the CBI / prosecution has successfully proved its case against both the accused persons, beyond a shadow of doubt, for the offences punishable u/s 120­B read with Section 7 and 13(2) of The Prevention of Corruption Act, 1988. The prosecution has also succeeded in proving its case, beyond a shadow of doubt, against the accused P.S. Bhardwaj (A­1), for the substantive offences, punishable under Section 7 and Section 13(2) read with Section 13(1)(d) of The Prevention of Corruption Act, 1988.

CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 69 of 83 Special Judge, CBI­01, Central, Delhi

70. Both the accused persons are accordingly held guilty & convicted, for the said offences. Accordingly, both the convicts are taken into custody and sent to judicial custody at Central Jail, Tihar, till the next date of hearing.

Let the convicts be heard on the point of sentence, on the next date of hearing.

It is ordered accordingly.

Announced in open Court on this 1 day of December, 2015 st BRIJESH KUMAR GARG Special Judge:CBI­01 Central District, Delhi CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 70 of 83 Special Judge, CBI­01, Central, Delhi IN THE COURT OF SH. BRIJESH KUMAR GARG SPECIAL JUDGE:CBI­01: CENTRAL: TIS HAZARI, DELHI CC No.: 21/2011 RC : 2(A)/2011 PS : CBI/ACB/New Delhi U/s : 120 B IPC, r/w Sec. 7 & Sec. 13 (1) (d) punishable u/s 13(2) of The Prevention of Corruption Act 1988.

CBI  Vs.          1) P.S.Bhardwaj
                 2) Sanjay Kumar


ORDER ON THE POINT OF 'SENTENCE'
03.12.2015

1. Vide judgment dated 01.12.2015, both the accused have been convicted for the offences punishable u/s 120­B read with Section 7 and 13(2) of The Prevention of Corruption Act, 1988. Accused P.S. Bhardwaj (A­1) has also been convicted for the substantive offences, punishable under Section 7 and Section 13(2) read with Section 13(1)(d) of The Prevention of Corruption Act, 1988.

2. I have heard Sh. Praneet Sharma, Ld. PP for CBI and Sh. CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 71 of 83 Special Judge, CBI­01, Central, Delhi Manoranjan, Advocate, for both the convicts, on the point of sentence, at length, today.

3. Sh. Praneet Sharma, Ld. PP for the CBI, has prayed for taking a strict view of the matter and for awarding deterrent punishment to both the convicts. He has argued that the corruption has taken its roots, deep in society and therefore, the maximum punishment be awarded to the convicts to give a message to the society that the corruption is to be dealt with heavy hands. He has further argued that accused P.S. Bhardwaj was employed under the Delhi Police and being employed as the protector of law, he was having more responsibility towards the society at large. He has further argued that the accused P.S. Bhardwaj has damaged the trust of the society towards the police officials and therefore, an exemplary punishment may be awarded to him. Ld. PP for the CBI has relied upon the following judgments, in support of his contentions :

(i) 'State of M.P. vs. Shambhu Dayal Nagar', reported as, (2006) 8 Supreme Court Cases 693.

CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 72 of 83 Special Judge, CBI­01, Central, Delhi

(ii) "State of M.P. and Others vs. Ram Singh and Others, reported as "AIR 2000 Supreme Court 870"

4. Sh. Manoranjan, Advocate, Ld. Counsel for both the convicts has prayed for taking of a lenient view against both the convicts. He has argued that the convict P.S. Bhardwaj is about 57 years of age and is having a wife and two dependent children and is the sole bread earner for his family. He has further argued that the accused P.S. Bhardwaj is also an ex­serviceman and his daughter is of marriageable age and if a severe punishment, for a long period of imprisonment, is awarded to him, his entire family shall suffer and in the community of the accused, it would be very difficult for him to get his daughter married in a respectable family. He has further argued that the convict has already remained in the judicial custody for a period of two months, w.e.f. 20.05.2011 to 20.07.2011 and is having no previous criminal record or any departmental inquiry against him and therefore, a lenient view may be taken against him.

CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 73 of 83 Special Judge, CBI­01, Central, Delhi

5. The Ld. defence counsel for convict Sanjay has also argued that the convict Sanjay is about 41 years of age and is having three dependent children and his wife is also a housewife. The convict is also having old aged parents in his family and all the family members are dependent on him, as he is the sole bread earner for his family. He has also argued that his daughter is also of marriageable age and due to the stigma of conviction, in the present case, it would be very difficult for him also, to get his daughter married in a respectable family. He has further argued that the convict Sanjay has also remained in judicial custody for a period of two months for a period w.e.f. 05.05.2011 to 06.07.2011 and is having no previous criminal record. Therefore a lenient view may be taken against him also.

6. I have given my considered thoughts to the arguments addressed by the Ld. PP for the CBI and the Ld. Defence Counsel for both the convicts. I have also perused the various judgments, cited by the Ld. PP for the CBI. The nominal roll of the convicts CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 74 of 83 Special Judge, CBI­01, Central, Delhi has been received from Central Jail, Tihar, New Delhi. The same are also perused.

7. In the present case, the allegations proved against both the convicts are quite serious in nature. The convicts had conspired together and the convict P.S. Bhardwaj has abused and misused his official capacity as a police officer and has demanded a sum of Rs. 1 Lac from complainant Munna Lal Gupta, as bribe, for handing over the possession of the house of the complainant Munna Lal Gupta, to him, from his daughter­in­law Smt. Neelam and his son Dinesh. The amount of bribe of Rs.80,000/­ was received by convict Sanjay Kumar, on his behalf. The convict P.S. Bhardwaj was working as Sub­inspector in Delhi Police and therefore, was having added responsibility on him to uphold the rule of law. But, the acts of the convict P.S. Bhardwaj have dented the faith of the society at large, on the police officials and the Delhi Police, as a whole.

CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 75 of 83 Special Judge, CBI­01, Central, Delhi

8. It has been held by the Hon'ble Supreme Court, in case titled as, "State of M.P. and Others vs. Ram Singh and Others", (Supra), as relied by the Ld. PP for the CBI, as under :

Corruption in a civilized society is a disease like cancer, which, if not detected in time, is sure to maliganise the polity of country leading to disastrous consequences. It is termed as plague which is not only contagious but if not controlled, spreads like a fire in a jungle. Its' virus is compared with HIV leading to AIDS, being incurable. It has also been termed as Royal thievery. The socio­political system exposed to such a dreaded communicable disease is likely to crumble under its own weight. Corruption is opposed to democracy and social order, being not only anti people, but aimed and targeted against them. It affects the economy and destroys the cultural heritage. Unless nipped in the bud at the earliest, it is likely to cause turbulence shaking of the socio­economic­political system in an otherwise healthy, wealthy, effective and vibrating society.

(emphasis supplied by me)

9. In case titled as, 'State of M.P. vs. Shambhu Dayal Nagar', (Supra), as relied by the Ld. PP for the CBI, the Hon'ble Supreme Court has further held as under:­ CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 76 of 83 Special Judge, CBI­01, Central, Delhi

32. It is difficult to accept the prayer of the respondent that a lenient view be taken in this case. The corruption by public servants has become a gigantic problem. It has spread everywhere. No facet of public activity has been left unaffected by the stink of corruption. It has deep and pervasive impact on the functioning of the entire country. Large­scale corruption retards the nation­building activities and everyone has to suffer on that count. As has been aptly observed in Swatantar Singh v. State of Haryana, corruption is corroding, like cancerous lymph nodes, the vital veins of the body politics, social fabric of efficiency in the public service and demoralising the honest officers. The efficiency in public service would improve only when the public servant devotes his sincere attention and does the duty diligently, truthfully, honestly and devotes himself assiduously to the performance of the duties of his post. The reputation of corrupt would gather thick and unchaseable clouds around the conduct of the officer and gain notoriety much faster than the smoke."

(emphasis supplied by me)

10. Like all cancer drugs, which are highly toxic in nature, the treatment of the persons, convicted for corruption, has to be severe, so as to have a strong effect on the issues / fabric of the society. Cancer causing pathogens of the society, can only be CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 77 of 83 Special Judge, CBI­01, Central, Delhi eradicated by strong medicine, in the shape of severe deterrent punishment.

11. It is also held by the Hon'ble Supreme Court, in case titled as, "Shyam Narain vs. State (NCT of Delhi)", reported as "(2013) 7 Supreme Court Cases 77", as under :

14. Primarily it is to be borne in mind that sentencing for any offence has a social goal. Sentence is to be imposed regard being had to the nature of the offence and the manner in which the offence has been committed. The fundamental purpose of imposition of sentence is based on the principle that the accused must realise that the crime committed by him has not only created a dent in his life but also a concavity in the social fabric. The purpose of just punishment is designed so that the individuals in the society which ultimately constitute the collective do not suffer time and again for such crimes. It serves as a deterrent. True it is, on certain occasions, opportunities may be granted to the convict for reforming himself but it is equally true that the principle of proportionality between an offence committed and the penalty imposed are to be kept in view. While carrying out this complex exercise, it is obligatory on the part of the court to see the impact of the offence on the society as a whole and its ramifications on the immediate collective as well as its repercussions on the victim.

CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 78 of 83 Special Judge, CBI­01, Central, Delhi

15. In this context, we may refer with profit to the pronouncement in Jameel v. State of U.P., wherein this Court, speaking about the concept of sentence, has laid down that it is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence.

16. In Shailesh Jasvantbhai v. State of Gujarat the Court has observed thus : (SCC p. 362, para 7) "7. ... Friedman in his Law in Changing Society stated:

'State of criminal law continues to be - as it should be - a decisive reflection of social consciousness of society.' Therefore, in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration."

17. In State of M.P. v. Babulal, two learned Judges, while delineating about the adequacy of sentence, have expressed thus: (SCC pp. 241­42, paras 23­24) CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 79 of 83 Special Judge, CBI­01, Central, Delhi "23. Punishment is the sanction imposed on the offender for the infringement of law committed by him. Once a person is tried for commission of an offence and found guilty by a competent court, it is the duty of the court to impose on him such sentence as is prescribed by law.

The award of sentence is consequential on and incidental to conviction. The law does not envisage a person being convicted for an offence without a sentence being imposed therefor.

24. The object of punishment has been succinctly stated in Halsbury's Laws of England (4th Edn, Vol. 11, Para

482), thus:

'482. Object of punishment. ­ The aims of punishment are now considered to be retribution, justice, deterrence, reformation and protection and modern sentencing policy reflects a combination of several or all of these aims. The retributive element is intended to show public revulsion to the offence and to punish the offender for his wrong conduct. The concept of justice as an aim of punishment means both that the punishment should fit the offence and also that like offences should receive similar punishments. An increasingly important aspect of punishment is deterrence and sentences are aimed at deterring not only the actual offender from further offences but also potential offenders from breaking the law. The importance of reformation of the offender is shown by the growing emphasis laid upon it by CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 80 of 83 Special Judge, CBI­01, Central, Delhi much modern legislation, but judicial opinion towards this particular aim is varied and rehabilitation will not usually be accorded precedence over deterrence. The main aim of punishment in judicial thought, however, is still the protection of society and the other objects frequently receive only secondary consideration when sentences are being decided." (emphasis in original)

18. In Gopal Singh v. State of Uttarakhand, while dealing with the philosophy of just punishment which is the collective cry of the society, a two­Judge Bench has stated that just punishment would be dependent on the facts of the case and rationalised judicial discretion. Neither the personal perception of a Judge nor self­ adhered moralistic vision nor hypothetical apprehensions should be allowed to have any play. For every offence, a drastic measure cannot be thought of. Similarly, an offender cannot be allowed to be treated with leniency solely on the ground of discretion vested in a court. The real requisite is to weigh the circumstances in which the crime has been committed and other concomitant factors.

(emphasis supplied by me)

12. Keeping in view, the entire circumstances of the present case and the law laid down by the Hon'ble Supreme Court, as CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 81 of 83 Special Judge, CBI­01, Central, Delhi discussed above, I am of the considered opinion that none of the convicts deserve any leniency from this court. Therefore, both the convicts are hereby sentenced to undergo Rigorous Imprisonment for a term of two years each & to pay a fine of Rs.10,000/­ each, for the offence punishable u/s 120­B IPC read with Section 7 and 13(2) of The Prevention of Corruption Act, 1988. In default of payment of fine, by any of the convict, he shall further undergo a term of R.I. for a period of one month.

13. Convict P. S. Bhardwaj is further sentenced to undergo Rigorous Imprisonment for a term of three years and to pay a fine of Rs.5,000/­, for the offence punishable under Section 7 of The Prevention of Corruption Act, 1988. In default of payment of fine, the convict shall further undergo Rigorous Imprisonment for one month.

14. Convict P. S. Bhardwaj is further sentenced to undergo Rigorous Imprisonment for a term of three years and to pay a fine CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 82 of 83 Special Judge, CBI­01, Central, Delhi of Rs.10,000/­, for the offence punishable under Section 13(2) read with Section 13(1)(d) of The Prevention of Corruption Act, 1988. In default of payment of fine, the convict shall further undergo Rigorous Imprisonment for one month.

15. All the sentences shall run concurrently. Both the convicts shall also be given the benefit of Section 428 Cr.P.C., for the periods, already undergone by them, in judicial custody, during the trial.

It is ordered accordingly.

Announced in open Court on 03 day of December, 2015 rd BRIJESH KUMAR GARG Special Judge:CBI­01 Central District. Delhi CBI Vs. P.S. Bhardwaj etc. (CC No. 21/2011) Page 83 of 83 Special Judge, CBI­01, Central, Delhi