Madras High Court
K. Manickam, M. Kaliappan, K. ... vs State Rep. By Deputy Superintendent Of ... on 30 April, 2002
JUDGMENT Malai Susbramanian, J.
1. All the accused were attached to the Mettur Unit of the Prohibition Enforcement Wing situate at Kunjandiyur having territorial jurisdiction over 7 Police Station limits. A.26 was the Additional Superintendent of Police and A.25 was the Deputy Superintendent of Police. A.28 was the Camp Clerk and A.29 was the Office Assistant attached to the Additional Superintendent of Police. A.1 was the Inspector of Police. A.2, A.4 and A.27 are Sub Inspectors of Police. Others belong to the constabulary. The approver P.W.4 was the Station Writer of the Wing.
2. The charges against them are that: All the accused entered into a criminal conspiracy having agreed to collect "mamool" from various prohibition offenders by way of illegal gratification other than legal remuneration as a reward for abstaining from arresting them and booking cases against them and in pursuance of the conspiracy A.1 to A.27 by abusing their position as public servants obtained for themselves and on behalf of A.28 to A.31 pecuniary advantage in the form of "mamool" to be shared among them collected through A.3, A.10, A.11 and A.21 on behalf of all the accused and thus collected an amount of Rs.2,00,950/- as illegal gratification and shared among themselves.
3. P.W.4 Krishnan, a Grade-I Constable was working as a writer in the Prohibition Wing, Mettur from 21.10.1988. The Prohibition Wing was collecting from various illicit distillers, a sum of Rupees ranging from 150 to 300 per week from each for permitting them to distil and sell arrack. The agreement was that each distiller should give one case per month. A.10, Constable Natarajan, A.11, Constable Swaminathan and A.21, Constable Chinna Muniyan were entrusted with the work of collecting "mamool". As and when they go for collection of "mamool", they would be provided with other duties. The distillers themselves also used to come to the Station and hand over the "mamool" amounts to the Para Constable who was expected to take down their address and the amount and every day the collected amount was disbursed among the Police Force. An arrangement came to an effect in the third or fourth week of December 1988 whereby the first accused proposed that the collected "mamool" can be distributed and disbursed once in a week. Other Constables were also informed about the arrangement. Every week, either on Saturday or Sunday, the amount will be disbursed. By that arrangement, Inspector will get 8 shares, Sub-Inspector will get 4 shares, Head Constable will get 2 shares, Grade-I Constable will get 1-1/2 shares and the Constables and Drivers will get each one share. The further arrangement was that the Additional Superintendent of Police, A.26 was given Rs.1,000/- per week, the Deputy Superintendent of Police,A.25 was given Rs.1,250/- per week, Camp Clerk, A.28 Rs.150/- per week and the Office Assistant, A.29 Rs.50/- per week. After reserving Rs.2,450/- for the above persons, the remaining amount would be shared by others. The amount to A.25,A.26,A.28 and A.29 would be distributed by P.W.4 and the Inspector of Police as and when they go for meetings. A total collection of Rs.30,000/- to Rs.35,000/- was made each week and A.25 used to receive Rs.1,000/- per month to be given to the Superintendent of Police, Mr. Kasim. The Inspector of Prohibition Intelligence Bureau had to be given Rs.1,000/- per month for each unit and a total amount of Rs.10,000/- for ten units was given to the Inspector Rangaswami who was then in-charge of Prohibition Intelligence Bureau. Besides the collection by way of "mamool", amounts at a rate of Rs.150/- to Rs.300/- per head used to be collected for releasing the accused on bail. A.1, Inspector of Police used to verify the chits containing particulars of "mamool".
4. P.W.2, Sengodan, requested permission for distillation of arrack. A.2 and P.W.4 permitted him to distil arrack on condition that he should pay an amount of Rs.220/- per week, by way of "mamool" and one case should be given per month and in case, the distiller could not give one case per month, an additional amount of Rs.200/- per month should be given. Thereafter, P.W.2, started distillation of arrack. He used to go for giving "mamool" every Saturday or Sunday. The particulars of receipt of "mamool" will be entered in note books. P.W.5, Chittu was also one of the distillers and in case, the distillers do not go and hand over the "mamool" amounts, the Police Constables used to come on Mondays and collect the same. In the month of 'Karthigai', the Sub-Inspector of Police, A.2, came to the place where P.W.2 was distilling arrack. After chiding P.W.2, for not giving "mamool", A.2, broke the arrack pots and destroyed the distillery and also filed a case against him. Aggrieved by this incident, P.W.2 decided to give complaint to the Deputy Superintendent of Police, Vigilance and Anti Corruption, Salem and accordingly in the month of 'Margazhi' on one Monday (19th date) he went and reported the matter to the Deputy Superintendent of Police at about 11.00 A.M., who reduced the same in writing. Thereafter, P.W.2, affixed his thumb impression in the complaint which has been marked as Ex.P.2. He agreed to cooperate with the Deputy Superintendent of Police.
5. Thereafter the Deputy Superintendent of Police, P.W.85, summoned P.W.3, Senthil Kumar and one Venkataraman, official witnesses and asked them to go through the complaint given by P.W.2 and after they went through the complaint, P.W.85, put some powder in a glass of water and asked P.W.2, whether he brought the "mamool" amount. P.W.2, then handed over eleven numbers of twenty rupee notes and the same was directed to be handed over to P.W.3, Senthil Kumar who counted it and thereafter the same currency notes were dusted with powder and Senthil Kumar was asked to put his fingers in the tumbler filled up with water. When P.W.3, Senthil Kumar dipped his fingers, there was no change in the water. Thereafter, the currency notes were permitted to be handled by P.W.3 and after handling them again he was asked to dip his fingers and the water turned slightly reddish. Thereafter the number of all the twenty rupee notes, MO-1 series were noted down and the liquid also was separately put in a bottle and sealed. The powder used for dusting the currency notes was also sealed in packets. Thereafter, at about 2.30 P.M., all of them went to Kunchandiyur Police Station of mobile raid party. The Deputy Superintendent of Police stopped the vehicle at a distance and directed P.Ws.2 and 3 alone to go to the Police Station with a direction that as usual the amount should be handed over to the police there and after any body receives the same, P.W.2 should come out and comb his hairs with his hands as a signal to indicate that the amount has been received. Accordingly, P.Ws.2 and 3 went to the Police Station and handed over the currency notes of Rs.20/- denomination eleven in number to A.3, Sentry Constable and the same was received by A.3 and A.3 made a note of it in a chit in Ex.P.4 that the amount was received from P.W.2, Sengodan. Thereafter both of them came out of the Police Station and P.W.2 signaled as directed and the Deputy Superintendent of Police, P.W.85, and other Officers along with one Venkataraman came there.
6. When P.W.85 entered the Police Station, A.4, Parameshwaran, the Sub-Inspector of Police was seated in the Eastern room and P.W.4, the writer was seated in the Western room. A.3 was standing behind P.W.4. They also noticed seven policemen seated in a small shed put up in front of the Office. P.W.85, asked A.3 to dip his hands in the Sodium Carbonate water and when A.3 dipped his fingers of both hands in two different tumblers, water in both the tumblers turned slightly reddish. Thereafter, P.W.85 preserved the Sodium Carbonate mixture by assigning number S. 2 and S.3 to them. They have been marked as M.Os.5 and 6. A.3 was seen perturbed. Thereafter A.3 took out Rs.440/- from his right side back pant pocket out of which the eleven number twenty rupee notes given by P.W.2 were separately taken and compared with the numbers of the currency notes noted down already. They have been marked as M.O.7 series. A.3 handed over Rs.560/- from his right side shirt pocket and that was marked as M.O.8 series. Again A.3 took out Ex.P.4 chit from out of his left side shirt pocket wherein the details of receipt of Rs.250/- from P.W.2 was written. Thereafter P.W.85 seized the shirt and pant worn by A.3 by providing another dress to him. The Sodium Carbonate solutions were marked as S.4. The pant and shirts were marked as M.Os.10 and 11. Thereafter they went to P.W.4 and P.W.85 questioned whether he was having any "mamool" amount and P.W.4 handed over Rs.1,357/- from his drawer from inside a rexine bag. He also gave sixteen chits and the bag has been marked as M.O.12. The amount has been marked as M.O.13 series and the sixteen chits were marked as Exs.P.5 to P.20. P.W.4 also handed over an yellow cloth bag M.O.14 with an amount of Rs.3,757/- and sixteen chits. The amount has been marked as M.O.15 series and the chits were marked as Exs.P.21 to P.36. Thereafter, P.W.85 checked the drawer of the table and took away Rs.1,400/-. Since P.W.3 informed P.W.85 that, the amount relates to salary to be paid to Constables, P.W.85 did not seize the said amount. At about 5.50 P.M., on that day A.2, the Sub-Inspector of Police Mr. Manickam came to the Station in a motorbike and P.W.85 recovered Ex.P.37 pocket note book of the Sub-Inspector.
7. P.W.10, a resident of Nangavalli Village came there at about 5.45 P.M., with a chit. He also gave Rs.500/- and the same was seized by P.W.85. The chit was marked as Ex.P.38. The contents of general diary, sentry books, duty roasters and pocket note books of Constables and other Officers were seized. Thereafter, P.W.85 arrested A.3, A.4 and P.W.4 at about 6.50 P.M. The Deputy Superintendent of Police also prepared a Mahazar giving out the details of what had happened on that day. The same was marked as Ex.P.83, a copy of the same was given to the arrested accused. P.W.85, drew a sketch Ex.P.211 of the topography of the Police Station at Kunchandiyur. He also sent an advance intimation Ex.P.212 regarding his proposed search of the houses of some accused. When the house of the second accused was searched at Ambedkar Nagar, Mettur in between 7.40 P.M. and 8.40 P.M., a cash of Rs.29,600/- was seized and the same has been marked as M.O.17. Investment deposit receipts, Indiravikas Certificates, S.B. Accounts were all seized. They are M.Os.18 to 32. Search list was Ex.P.84. A.2 was present throughout the search and a copy of the search list was given to him. Between 9.15 P.M. and 9.45 P.M., P.W.4's house at Mariamman Koil Street, Thangamapuri Pattanam, Mettur was searched but nothing incriminating was seized. Search list was Ex.P.85 a copy of which was given to P.W.4. Thereafter, P.W.85 along with A.3, A.4 and P.W.4 came back to his Office at Salem and the next day i.e. on 3.1.1989 between 1.00 A.M. And 1.45 A.M., the house of A.1 at Pillaiyar Koil Street, Namakkal, was searched but no incriminating documents were seized. Search list was marked as Ex.P.86, a copy of which was given to the first accused. The house of the fourth accused was searched between 2.00 A.M and 2.45 A.M. at Gandhinagar, Namakkal and an amount of Rs.9,700/- was seized which was marked as M.O.33 series. The search list was Ex.P.87, a copy of which was given to A.4. On 3.1.1989 between 6.00 A.M. and 6.45 A.M., the house of A.27 was searched, an amount of Rs.9,400/- was seized and the same has been marked as M.O.34 series and the search list has been marked as Ex.P.88, a copy of which was given to A.27 and the house of A.25 at Brindhavan Street, Salem fair lands was searched between 7.30 A.M., and 8.15 A.M., and an amount of Rs.25,070/- was seized under Ex.P.89 search list and a copy of which was given to A.25 and the amount has been marked as M.O.35 series. At about 8.45 A.M.,P.W.85 came back to his Office and then released A.3,A.4 and P.W.4 on bail.
8. P.W.85 forwarded the material objects and exhibits to the Court with a request under Ex.P.100 for sending the M.Os.S.1 to S.4 for forensic examination. He also requested the Court to send Exs.P.4, P.6 to P.36, P.95 and four sentry relief books bearing the signature of P.W.4, the pocket note book of A.2, Sub-Inspector Manickam, a pocket note book of P.W.4, a pocket note book of A.23 Constable Jayakumar, four more sentry relief books for comparison of the hand writing. The requisition was marked as Ex.P.103. The handwriting expert wanted some more admitted handwritings of A.3, A.6, A.11, A.21, A.2, A.23 and P.W.4 and the same was sent through the Court. Again a letter dated 28.7.1989 from the Assistant Director of Forensic Science was received for additional admitted documents for the purpose of comparison and therefore P.W.85 sent two note books of Krishnan, P.W.4, three note books of A.2 with his covering letter dated 17.8.1989 Ex.P.201. P.W.85 examined the witnesses and recorded their statements. On 25.4.1989, P.W.4 informed P.W.85 that he wanted to turn an approver for which purpose he also filed an application and P.W.85 made arrangements for the same. The confession statement of P.W.4 was recorded by the Magistrate and thereafter P.W.85 gave requisitions dated 9.5.1989 and 11.5.1989 to the Chief Judicial Magistrate, requesting him to tender pardon to P.W.4. Accordingly, the Chief Judicial Magistrate, Salem by his proceedings dated 11.5.1989 marked as Ex.P.199 gave the tender of pardon. After completing the investigation, P.W.85 forwarded his report to the Director of Vigilance and Anti Corruption and also requested sanction by the Director General of Police to prosecute the accused. The then Director General of Police accorded sanction and sanction order was obtained from the Government also and thereafter, a final report was filed against all the accused.
9. After the evidence of the prosecution was over, the trial Judge questioned the accused regarding the incriminating circumstances available in evidence against each accused and their answers were recorded. The accused generally denied the offence and on the side of the accused D.Ws.1 and 2 were examined and Exs.D1 to D8 were marked. The learned Trial Judge after recording the evidence, convicted the appellants as aforesaid and hence these appeals.
10.The first charge against all the accused is that they conspired to commit the offences under Secs. 13(2) read with 13(1(a), 13(1)(d) and 7 of Prevention of Corruption Act and the trial court also convicted the appellants for the said offence. The crux of the accusation is that they agreed to accept illegal gratification with a view to help the bootleggers to distil and sell arrack illegally and they abused their position as public servants, received "mamool" from the bootleggers with a view to share it among themselves thereby affording pecuniary advantage not only to themselves but also to the bootleggers. The conspiracy charge further reads that they have also shared among themselves an amount of Rs.2,00,950/-. The trial Judge holds that the testimony of P.Ws.2, 3, 5, 8 and 83 lends corroboration to the testimony of P.W.4 to the effect that there was conspiracy on the part of accused 1 to 31 except 14 to receive weekly "mamool" as illegal gratification for the purpose of permitting bootleggers to distil and sell illicit arrack and to tap and sell toddy freely without any legal encumbrance.
11. Sec. 120-A IPC defines Criminal Conspiracy thus: "When two or more persons agreed to do, or so cause to be done an illegal act, or an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy"
Conspiracy should be earlier in point of time to the illegal act committed because the agreement should be to commit an illegal act. Thus, the agreement should precede the commission of illegal act or legal act by illegal means. Conspiracy requires an actus-reus and an accompanying mens-rea. The Apex Court in Firozuddin Basheeruddin and Others vs State of Kerala reported in (2001 Supreme Court Cases (Crl) 1341)has been pleased to hold that the prosecution must show that a person agreed with others that together they would accomplish the unlawful object of the conspiracy. It went to hold that so far as the mental state is concerned, two elements required by the conspiracy are that the intent to agree and the intent to promote the unlawful objective of the conspiracy and it is the intention to promote a crime that lends conspiracy its criminal cast. The Supreme Court in the case of Saju vs State of Kerala reported in 2001 Supreme Court Cases (Crl)160 holds that mere meeting would by itself not sufficient to infer the existence of criminal conspiracy. The relevant passage of the above ruling is extracted below:
"In the instant case the hatching of conspiracy between the accused persons has been sought to be proved on the ground that as the deceased had declined to get the pregnancy aborted, the appellant wanted to get rid of her, suggesting the existence of circumstance of motive. Another circumstance relied upon by the prosecution is that both the accused were seen together on the date of the murder near or about the place of occurrence. Some conversation is also stated to have taken place between the accused persons, the contents of which are neither disclosed nor suggested. Accused 1 alone was found to have boarded the bus in which the deceased was travelling and alighted from it along with her" .........
" In the absence of any evidence suggesting the existence of a circumstance of insistence by the appellant for abortion, an important link in the chain of circumstances attributed against him is missing. Even otherwise, motive by itself cannot be a proof of conspiracy. In Girija Shankar Misra vs State of U.P though it was found that there were serious misunderstandings between the deceased and the appellant because of the illicit relationship between the appellant and the wife of the deceased, yet the Court held that despite the fact that the appellant had a motive, he could not be held responsible for hatching a conspriacy"
Of course, conspiracy cannot be proved by direct evidence in most of the cases and therefore, hear say evidence has been made admissible under certain circumstances. There is also no doubt that all the conspirators have to be held guilty for the act committed by any member of the group in furtherance of the conspiracy. Thus, proof of conspiracy requires meeting of minds.
12.P.W.2 is the decoy witness and as per his evidence, he approached P.W.4 and A.2 for permission to distil arrack and they accorded permission on condition that he should pay an amount of Rs.220/- per week by way of "mamool" and should provide one case per month or otherwise another amount of Rs.200/- per month should be paid. Thereafter, he goes to give evidence regarding the trap. P.W.3 - the official witness who associated himself with the trap also speaks about trapping A.3 and the presence of some other accused at the time of trap. P.W.5, another bootlegger only speaks about payment of weekly "mamool" of Rs.250/- to A.3 at the police station. P.W.8 is the father of P.W.2, who speaks about destruction of the distillation materials by A.2 - the Sub Inspector of Police, though he could not identify A.2 in Court. P.W.83 is the handwriting expert who compared the handwritings of certain accused. Thus, the holding of the trial court that the testimony of P.Ws.2, 3, 5, 8 and 83 lends corroboration to the testimony of P.W.4 to prove the conspiracy part of the case does not appear to be correct because none of these witnesses spoke about any incident from which conspiracy by the appellants could be inferred.
13. Coming to the evidence of P.W.4, the Station writer, who turned an approver, nowhere he says that the appellants conspired to do this illegal act of allowing the bootleggers to freely distil and sell arrack for the sake of "mamool". According to him, the Prohibition Wing of the Police Department at Mettur used to collect "mamool" ranging from Rs.150/- to Rs.300/- per week from the distillers and A.10, A.11 and A.21 used to collect the said "mamool" and in their absence the constable doing para duty used to collect. He goes to further say that the collected amount will be shared from amongst the accused/appellants. This act of sharing of the collected amount happens only after the amounts are collected every week. This is the actus -reus; but there is absolutely no evidence that this act was committed after a conspiracy or pursuant to the conspiracy. There is absolutely no evidence that the appellants or some of the appellants conspired to collect "mamool" from the bootleggers. Even if it is taken that receipt of "mamool" has been proved it does not presuppose hatching of conspiracy by the appellants especially in the absence of any evidence to throw light on the conspiracy angle of the case. If it is to be said that subsequent receipt of "mamool" presupposes the conspiracy, then no offence could have been committed by two or more persons without conspiracy and in almost all such cases a charge for conspiracy has to be levelled. Therefore, the prosecution has miserably failed to prove the conspiracy angle of the case and hence I hold that the accused cannot be held guilty of offence under Sec. 120-B IPC read with Secs. 13(2) read with 13(1)(a) and 13(1)(d) and Sec. 7 of Prevention of Corruption Act 1988.
14.With regard to the actual commission of the offences the same could be divided into two parts. The first one is collection of "mamool" by A.3 and consequent trap and the second one is the offence said to have been committed by all the appellants under Secs. 13(2) read with 13(1)(a) and 13(1)(d) of Prevention of Corruption Act.
15. The witnesses to prove the trap of A.3 are P.Ws.2, 3 and 85. P.W.2 is the dacoy witness. P.W.3 is the official witness and P.W.85 is the officer who laid the trap. According to P.W.2 - Sengodan, from Aadi month to Karthigai month, he was giving "mamool" to the Prohibition Wing at Mettur. In the month of Karthigai, A.2- Manickam, the Sub Inspector of Police came to the place of distillation and after chastising P.W.2 for not being regular in giving "mamool", destoryed the utensils and the oven and also foisted a case on him. The prosecution relies on Ex.P.13 - the First Information Report index to prove that a case was foisted against him. As per Ex.P.113, A.2 has registered a case against P.W.2, P W.8 and two others for offence punishable under Sec.4(1)(b) of Tamil Nadu Prohibition Act and according to Ex.P.113, the offence was said to have been committed by them on 5.12.88 at about 10.45 a.m and the report was made at 6.30 p.m. The learned Senior counsel MR. R. Shanmugasundaram would contend that P.W.2 has come forward with a false version only because his distillery was destroyed and a case was filed against him by A.2. Motive is a double edged weapon and it has to be seen whether the offence of getting illegal gratification by A.3 has been proved by other independent evidence.
16. P.W.2 decided to approach Deputy Superintendent of Police of Vigilance and Anti Corruption, since A.2 had caused loss to him. Therefore, on 19th of Margazhi, one Monday he went to Deputy Superintendent of Police - P.W.85 and gave Ex.P.2 statement which was reduced into writing by P.W.85 and thereafter, P.W.2 signed. According to P.W.85, on 2.1.89 at about 11.00 a.m P.W.2 appeared before him and complained about the mobile raid party of Kunjandiyur and he reduced in writing the statement given by P.W.2 and registered a case in Cr.No.1/A-C/89 under Section 7 of Prevention of Corruption Act. The Printed First Information Report is Ex.P.210. P.W.85 thereafter summoned P.W.3 - Senthil Kumar and one Venkatraman from the Tamil Nadu Water Supply and Drainage Board and in their presence he dusted the eleven 20 rupee notes given by P.W.2 with a powder and demonstrated phenoptheline test. It is the evidence of P.Ws.2, 3 and 85 that they all went along with the police party to Kunjandiyur, Prohibition Enforcement Wing Police Station and P.W.85 and other police party stayed behind while P.Ws.2 and 3 were directed to go to the police station; give the amount of Rs.220/- and if anybody receives, P.W.2 should come out and comb his hair with hand thrice. Accordingly, P.Ws.2 and 3 went to the police station and handed over the amount of Rs.220/- to A.3 - the sentry constable who entered the same in a chit Ex.P.4. Immediately P.W.85 entered the police Station at about 2.45 p.m and then asked A.3 to dip his fingers in the Sodium Carbonate liquid and accordingly A.3 did so, and the liquid turned slightly reddish and thereafter, P.W.85 seized the liquids. Thereafter, according to P.Ws.3 and 85, the latter questioned A.3 and A.3 gave Rs.440/- from his back side pant pocket out of which Rs.220/- with the denomination of 20 rupees were separated and the same was seized and marked as M.O.7 series. According to P.Ws.3 and 85, A.3 took out Rs.560/--M.O.8 series from his right side shirt pocket and also Ex.P.4 - chit from his left side shirt pocket.
17. The learned senior counsel contends that Ex.P.4 mentions Soragai Sengottian, whereas the name of P.W.2 is only Sengodan and therefore, what has been written in Ex.P.4 has no connection with any "mamool" said to have been given by P.W.2. The learned Government Advocate replies that the name has been wrongly written as Sengottaian instead of Sengodan and that does not mean that A.3 did not receive an amount of Rs.220/- from P.W.2 on that day. In support of his contention he also relies on the evidence of P.W.5 - Chittu who is another bootlegger, who says that on one Sunday he went to the Prohibition Enforcement Wing Police Station and returned after giving "mamool" amount and P.W.2 came behind him. It is his further evidence that the sentry constable was receiving "mamool" that day. The learned senior counsel tries to falsify the version of P.W.5 on the ground that according to him the incident took place on Sunday, whereas according to P.W.2, it was on Monday. Irrespective of the discrepancy which is bound to occur when witnesses are examined after so many years the evidence of P.Ws.2 and 3 corroborate each other with regard to handing over of Rs.220/- by P.W.2 to A.3. P.W.3's evidence in this respect cannot be rejected. P.W.85 had also conducted the phenoptheline test whereby Rs.220/- offered by way of bribe has been recovered from A.3. Of course with regard to the other amounts viz., recovery of Rs.560/- from the right side shirt pocket and recovery of Ex.P.4 from the left side shirt pocket, there was a contradiction in between the evidence of P.W.3 and the statement recorded from him under Sec.B 161 Cr.P.C. That has been duly contradicted with the witness as well as the Investigating Officer - P.W.85. Ex.P.83 Mahazar shows that M.O.10 -pant recovered from A.3 does not have a side pocket at all. The Deputy Superintendent of Police - P.W.85 tries to explain that in 161 Cr.P.C. statement of P.W.3, it as typed as if M.O-8 series Rs.560/- and Ex.P.4 - Chit were recovered from the right side and left side pant pockets, but it is only a typographical error. I am unable to accept the explanation offered by P.W.85 in this regard and therefore, the recovery of Rs.560/- and Ex.P.4 have to be ignored but still there is ample corroboration insofar as receipt of Rs.220/- bribe amount by A.3. Therefore, I hold that the prosecution has established that A.3 received an amount of Rs.220/- by way of "mamool" from P.W.2 and hence he is guilty of offence under Sec. 7 of Prevention of Corruption Act 1988.
18. The trial Judge besides convicting A.3 under Sec. 7 of Prevention of Corruption Act also convicted him for an offence under Sec. 13(2) read with 13(1)(d) of the Act and sentenced him to undergo R.I for one year and to pay a fine of Rs.2,000/- , in default to undergo R.I for two months, for the same act of receiving bribe for which he was convicted under Sec. 7 of Prevention of Corruption Act, 1988. Though the offence under Sec. 7 of the Act amounts to criminal misconduct by a public servant as contemplated by Sec. 13 of the Act, no separate sentence need be awarded to A.3, since for accepting gratification other than legal remuneration from P.W.2 as a motive or reward to show favour to P.W.2 in exercise of his official functions, he was awarded with a punishment of R.I for one year and to pay a fine of Rs.2,000/-, in default to undergo R.I for two months. Therefore, while confirming the conviction of A.3 for offence punishable under Sec. 13(2) read with 13(1)(d) of the Act also, the sentence imposed for that offence alone stands deleted.
19. The learned Trial Judge convicted A.1 to A.11, A.13, A.15to A.23 and A.25 toA.31 for an offence punishable under Sec. 13(2) read with 13(1)(a) of Prevention of Corruption Act and for offence under Sec. 13(2) read with 13(1)(d) of Prevention of Corruption Act, 1988. Sec. 13(1)(a) punishes a public servant for the offence of criminal misconduct " if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or reward such as is mentioned in Section 7". Sec. 13(1)d) punishes if he obtains pecuniary advantage by such act. It has to be seen whether the above said offences have been proved as against the convicted appellants.
20.P.W.85 after registering a case under Sec. 7 of Prevention of Corruption Act, 1988 on the strength of Ex.P.2 recorded from P.W.2 not only trapped A.3 but continued his investigation to charge sheet the appellants for offences punishable under Secs. 13(2) read with 13(1)(a) and 13(2) read with 13(1)(d) of the Act. Though P.W.2 in his chief examination itself could not identify A.2 and A.3 in Court on the ground of lapse of six or seven years, he had mentioned the name of A.2 as Sub Inspector, who permitted him to distil arrack. A.3 was found guilty of the offence punishable under Sec. 7 of Prevention of Corruption Act in view of the evidence of P.W.2., P.W.3 and P.W.85. So far as the other appellants are concerned, P.W.2's evidence implicates A.2 alone. P.W.3, the official witness, who accompanied P.W.85 spoke about the presence of A.4 and P.W.4 at the police station besides A.3. He has also stated that 7 police men were seated in a shed in front of the police station in mufti. He could identify A.7, A.8, A.9, A.13 and A.20 in Court. Mere presence of these accused in front of the police station in a shed is not an incriminating circumstance against them. There is also no evidence against A.4 except his presence at the police station in a different room. Even P.W.4 did not attribute any role to A.4. Therefore, A.4, A.7, A.8, A.9, A.13 and A.20 cannot be convicted on the above evidence.
21.According to P.W.3 and P.W.85, P.W.4, the approver was questioned by P.W.85 as to whether he was in posession of any "mamool" amount and P.W.4 took out a brown colour rexine bag - M.O.12 from his table drawer and produced Rs.1,357/- - M.O. - 13 series and 16 chits - Exs.P.5 to P.20. According to them P.W.4 took out from his room M.O.14 - yellow cloth bag, from which he took out Rs.3,757/- - M.O.15 series and 16 other chits - Exs.P.21 to P.36 and handed over to P.W.85. At about 5.15 p.m., A.2 came to the station and Ex.P.37 note book was seized from him. P.W.85 and P.W.3 would say that during the raid at about 5.45 p.m, P.W.10 - Murugesan came there and gave Rs.250/- for the case of one Gopal and another Rs.250/- for the case of one Azhagammal to P.W.85 along with a chit Ex.P.38. The amount of Rs.500/- has been marked as M.O.16 series. P.W.4 corroborates the entire version of P.W.3 and P.W.85, while P.W.10 turned hostile and according to him when he went near the police station, P.W.85 called him; beat and kicked him and took away Rs.7,000/-. From this evidence it is clear that certain "mamool" amounts were recovered from P.W.4 and P.W.10 also came to the police station and handed over "mamool" amount.
22.Thereafter, P.W.85 arrested A.3, A.4 and P.W.4 at 6.50 p.m while no reason was given for not arresting A.2. A.4 was only present in the police station and A.2 came to the police station. But A.4 was arrested whereas A.2 was not arrested for the reasons known to P.W.85. Then he prepared Ex.P.83 - Mahazar setting out the above events. Thereafter, he proceeded to the house of A.2 and searched the house. As per the search list-Ex.P.4, an amount of Rs.29,600/- - M.O.17 series was seized along with M.Os.18 to 20 fixed deposits, one RTS receipt M.O.21 and Indira Vikas certificates M.Os.22 to 31 and S.B.A/c book M.O.32. The search of P.W.4's house and the search of A.1's house yielded no results. Then P.W.85 along with P.W.3 and his party went and searched the house of A.4 at Namakkal and seized Rs.9,700/- - M.O.13 series and returned to Salem. The next day P.W.85 searched the house of A.26 and recovered Rs.9,400/- M.O.34 series and when he searched the house of A.25 an amount of Rs.25,070/- M.O.35 series was recovered.
23. The learned senior counsel Mr. R. Shanmugasundaram vehemently contends that P.W.3 was engaged for the purpose of trap and he ought not to have been allowed to accompany P.W.85 to witness various searches that were made subsequently and he is a witness who toes the line of Deputy Superintendent of Police - P.W.85 and hence the evidence regarding the seizure of the amounts and various other documents should not be believed. The learned senior counsel further submits that the fact of recovery ofRs.560/- - M.O.-8 series and Ex.P.4 - Chit from A.3 suffers from a vital contradiction and while P.W.3 in his 161 Statement had spoken that M.O.-8 series and Ex.P.4 were seized from the left and right side pant pockets, in the evidence P.W.3 switches to say that they were recovered from shirt pockets. According to P.W.85, it is a typographical error. I am unable to agree that it was only a typographical error. In view of this vital contradiction, the recovery of Rs.560/-- and Ex.P.4 - Chit from A.3 cannot be held to have been proved; but merely because P.W.3 was taken by P.W.85 to other places also P.W.3's evidence cannot be altogether rejected.
24. The further contention of the learned senior counsel is that P.W.4's statement under Sec. 161 Cr.P.C was recorded as early as on 3.1.89 whereas pardon was tendered to P.W.4 only on 17.5.89. According to him P.W.4 was a planted witness by P.W.85. He would further contend that no statements were recorded from A.2, A.3 and A.4 on that day and it creates a doubt that from the beginning the investigating officer had a mind to make P.W.4 an approver. According to him this is evident from the fact that P.W.85 admitted in his evidence that on 25.4.89, P.W.4 informed P.W.85 that he wanted to turn an approver and he presented a petition for the same and therefore, P.W.85 made arrangements to record his statement in the presence of the Magistrate concerned, but according to P.W.4,for four months after the incident , his mind was pricking and therefore he decided to tell the truth and then approached the Chief Judicial Magistrate, Salem directly with a petition Ex.P.90 and he was directed to go to the Court of Judicial Magistrate- and thereafter the statement under Ex.P.91 was recorded. May be there is some substance in the argument of the learned senior counsel that P.W.85 had the intention to take P.W.4 as an approver; but that itself cannot pursue the Court to reject the testimony of P.W.4 altogether because in cases of this type the evidence of an approver is necessary to prove the case. However, there is no evidence to hold that P.W.85 induced P.W.4 to turn as approver. The learned Government Advocate replies that statements were recorded from A.2 and A.4 also. The fact remains that certain documents and money were recovered from P.W.4 and it has not been said that those documents were forged by him. It has to be seen as to how far the evidence of P.W.4 finds corroboration in material particulars.
25.The learned senior counsel further contended that the pardon proceeding to P.W.4 has no sanction of law since P.W.4 was not examined under Sec. 306(4) Cr.P.C after he accepted the pardon. In support of his contention, he relied on a ruling of the Apex Court reported in Suresh Chandra Bahri vs State of Bihar (1995 SCC (Crl) 60), wherein it has been held that the examination of accomplice or an approver after accepting the tender of pardon as a witness in the Court of the Magistrate taking cognizance of the offence is thus a mandatory provision and cannot be dispensed with and if this mandatory provision is not complied with it vitiates the trial. The Hon'ble Supreme Court further holds that the failure to examine the approver as a witness before the committing Magistrate would not only amount to breach of the mandatory provisions contained in clause (a) of Sub-section (4) of Section 306 but it would also be inconsistent with and in violation of the duty to make a full and frank disclosure of the case at all stages. With great respect the benefit of ruling is not available to the appellants in this case because this is not a case where the Special Act contemplates any committal proceedings.
26.Sec. 5(1) of Prevention of Corruption Act reads as follows: "A Special Judge may take cognizance of offences without the accused being committed to him for trial and, in trying the accused persons, shall follow the procedure prescribed by the Code of Criminal Procedure,1973 (2 of 1974), for the trial of warrant cases by Magistrate".
Therefore, this special enactment has altogether omitted the committal proceedings. Turning to Sec. 306(4) Cr.P.C it reads " Every person accepting a tender pardon made under sub section (1)shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any". This provision contemplates two stages; one at the time of taking cognizance and the other at the time of trial. Sub.Sec. 5 would make the position clear. It reads thus: "Where a person has accepted a tender of pardon made under sub section (1) and has been examined under sub-section (4), the Magistrate taking cognizance of the offence, shall, without making any further inquiry in the case, commit it for trial".
The conjoint reading of Sub Secs.4 and 5 would only lead to an inference that the Court of the Magistrate mentioned in Sub Section (4) is the committing Magistrate and where no committal is necessary, sub.Sec.4 of Sec. 306 Cr.P.C does not operate and the approver is examined straight away during the course of trial. Therefore, the non-examination of P.W.4 after tendering of pardon and before the trial started does not vitiate the trial in this case.
27.Insofar as the search in the houses of A.1, A.2, A.4, A.25 and A.26, it has been proved that certain amounts of money was available with them. Mere possession of Rs.29,600/- by A.2, Rs.9,700/- by A.4, Rs.9,400/- by A.26 and Rs.25.070/- by A.25 does not prove that they have been in possession of tainted money, since the recovered amount was not connected with the "mamool". Further the appellants were not charge sheeted for offence punishable under Sec. 13(1)(e) for having been in possession of pecuniary resources disproportionate to their known sources of income. The offences under Secs. 13(1)(a) and 13(1)(d) of Prevention of Corruption Act require proof of habitual acceptance or obtaining of any gratification or pecuniary advantage. In the absence of proof that the recovered money was either obtained as gratification or accepted as a pecuniary advantage, the recovery alone will not implicate A.1, A.2, A.4, A.25 and A.26.
28. Turning to the evidence of the approver, we have to endeavour to find out how far his evidence implicates the appellants and how far that could be reliable. While evaluating the evidence of an approver, the Court has to look his evidence with some amount of circumspection and caution and his evidence should be critically examined. The learned senior counsel relies on 1979 SCC (Crl)1029 in the case of Chonampara Chellappan Vs State of Kerala and argues that the evidence of accomplice is a tainted evidence and it should not be accepted unless corroborated. The relevant passage of the ruling is extracted hereunder: "The law is well settled that the Court looks with some amount of suspicion on the evidence of an accomplice witness which is a tainted evidence and even Section 133 of the Evidence Act clearly provides that the evidence of an accomplice witness should not be accepted unless corroborated. At the same time, it must be remembered that corroboration must be in respect to material particulars and not with respect to each and every item however minor or insignificant it may be. Actually the requirement of corroboration is a rule of prudence which the courts have followed for satisfying the test of the reliability of an approver and has now been crystallized into a rule of law. It is equally well settled that one tainted evidence cannot corroborate another tainted evidence because if this is allowed to be done then the very necessity of corroboration is frustrated".
The Apex Court in A. Devendran Vs State of Tamil Nadu reported in 1998 SCC (Crl) 220 has discussed as to how to appreciate the evidence of an approver and has been pleased to hold thus: "What is the extent of corroboration that is required before the acceptance of the evidence of the approver would depend upon the facts and circumstances of the case. The corroboration required, however, must be in material particulars connecting each of the accused with the offence. In other words the evidence of the approver implicating several accused persons in commission of the offence could not only be corroborated generally but also qua each accused. But that does not mean that there should be independent corroboration of every particular circumstance from an independent source. All that is required is that there must be some additional evidence rendering it probable that the story of the accomplice is true. Corroboration also could be both by direct or circumstantial evidence".
The Supreme Court in Narayan Chetanram Chaudhary and Another vs State of Maharashtra reported in 2000 SCC (Crl) 1546 held:
"Section 133 of the Evidence Act provides that an accomplice is a competent witness against an accused person and the conviction is not illegal merely because it proceeds on uncorroborated testimony of the accomplice. No distinction is made between an accomplice who is or is not an approver. As both have been treated alike, the rule of corroboration applies to both. Accomplice's evidence is taken on record as a matter of necessity in cases where it is impossible to get sufficient evidence of a heinous crime unless one of the participators in the crime is disposed to disclose the circumstances within his knowledge on account of tender of pardon".
.......
" For corroborative evidence the Court must look at the broad spectrum of the approver's version and then find out whether there is other evidence to corroborate and lend assurance to that version. The nature and extent of such corroboration may depend upon the facts of different cases. Corroboration need not be in the form of ocular testimony of witnesses and may even be in the form of circumstantial evidence. Corroborative evidence must be independent and not vague or unreliable".
On this back drop we have to scrutinize the evidence of P.W.4.
29.P.W.4 - the Station Writer of Kunjandiyur Prohibition Enforcement Wing speaks that there was a practice that a distiller or a toddy tapper should give Rs.150/- to Rs.300/- per week and one case per month and A.10, A.11, A.21 used to collect the "mamool" amount and in their absence the constable on para duty will do that job. It is his further evidence that the collected amount will be distributed according to the ratio, to the officers and the constables. P.W.2 would say that he sought permission for distilling arrack from P.W.4 and A.2 - the Sub Inspector. According to him, they demanded Rs.220/- per week from him by way of "mamool" and in addition to that he should provide one case per month or in lieu of which Rs.200/-. He also would say that on Saturdays and Sundays he used to go and deliver the "mamool" amount to the Station Sentry who will record in the note books. P.W.5 - Chittu would say that he has to give Rs.250/- per week as "mamool" to Kunjandiyur Prohibition Enforcement wing for distilling arrack and he used to hand over the amount every Sunday and at times constables used to come over there and collect the amount. Insofar as this aspect of the case is concerned, P.W.4's evidence is corroborated by P.W.2 and P.W.5. From these evidence, it has been established that collection of "mamool" was going on at Kunjandiyur Prohibition Wing. Though P.W.2 says that he sought permission from P.W.4 and the Sub Inspector of Police in his chief examination itself, he would say that he could not identify the sentry constable and the Sub Inspector of Police- Manickam because of lapse of 6 to 7 years. Merely because he has not identified A.2 and A.3 in Court his evidence cannot be rejected since he remembered the name of A.2 and described him as Sub Inspector. He could describe A.3 as Sentry Constable. He has also implicated P.W.4. Thus the evidence of P.W.2 lends assurance to the evidence of P.W.4 that A.2 and P.W.4 permitted P.W.2 to distil arrack after payment of "mamool" and A.3 received the amount on the date of trap.
30.According to the approver, A.1 - Inspector seems to be the brain behind the "mamool" arrangement. It is his specific evidence that A.1 alone brought the arrangement of sharing the amount and A.1 used to verify the chits that contain particulars regarding payment of "mamool". P.W.4 would further say that in the month of December 1988, A.1 - Inspector Shakul Hammed suggested that the collected amount should be distributed once in a week. The Inspector being in charge of a Unit the receipt of "mamool" could not happen without his consent and knowledge. The evidence of receipt of "mamool" itself is a piece of circumstance to corroborate P.W.4. Therefore, I hold that the evidence of P.W.2, P.W.4 and recovery of money and chits from P.W.4 conclusively prove the guilt of A.1, A.2 and A.3 that they were habitually obtaining gratification from the boot leggers.
31.P.W.4 also speaks to the effect that Inspector will have eight shares, Sub Inspector will have four shares each, constables will have two shares each, Grade-I constables will have one and a half share and the constables and the drivers will each have one share. It is his further evidence that an amount of Rs.1,000/- will be given per week to A.26; Rs.1,250/- to A.25; Rs.150/- to A.28 and Rs.50/- to A.29. He would also say that when they go for the meeting, Inspector used to hand over the amounts to Additional Superintendent of Police and Deputy Superintendent of Police and he used to hand over to the Camp Clerk.-A.28 and Office Assistant A.29. According to him, an amount of Rs.30,000/- to Rs.35,000/- would be collected per week and A.25 used to receive an amount of Rs.1,000/- for the purpose of handing over to Superintendent of Police - Mr. Kasim. P.W.4 would further say that an amount of Rs.1,000/- from each unit used to be given to the Inspector of Police Mr. Rangaswami who was incharge of Prohibition and Intelligence Bureau at Rasipuram. But no explanation was forthcoming from P.W.85 who charge sheeted the appellants as to why the Superintendent of Police Mr. Kasim and the Inspector of Police, P.B.I Mr. Rangaswami were not arrayed as accused in this case. The above evidence of P.W.4 was not corroborated by any other circumstance. Neither P.W.2 nor P.W.5 or any other witness would corroborate the evidence of P.W.4 in this respect. But the learned trial judge finds corroboration of the tainted evidence of P.W.4 from his own confession given before p.W.72, the Judicial Magistrate concerned. The previous statement in the nature of confession loses its value the moment his position as accused changes to one of a witness. When he deposes in Court as a prosecution witness, the statement recorded from him could be used only for corroboration under Sec. 157 or to contradict him under Sec. 145 of the Evidence Act and the said statement is not a substantive piece of evidence. The material corroboration should forth come from independent sources. In this case, the above evidence of P.W.4 has not been corroborated and therefore, his evidence alone cannot be relied upon to convict all the other appellants on the accusation that they have received the "mamool" amount. The next endeavour of this Court would be to find out whether any other part of the evidence of P.w.4 stands corroborated on material particulars by other independent evidence.
32.In this case Exs.P.6 to P.20 - chits were recovered along with an amount of Rs.1,357/- from P.W.4. They show the entries of receipt of amount from various persons. According to P.W.4 the entries relate to receipt of "mamool" from boot leggers. He would further say that Exs.P.6,P.7, P.10 etc., were written by A.3 - Kaliappan. Ex.P.13 was written by A.6 - Vellaimunian and Ex.P.15 was written by A.21 - Chinnamunian, while Exs.P.8, P.9, P.11 and P.12 were written by P.W.4 himself. The evidence of P.W.83 document expert shows that these chits were written by P.W.4, A.3, A.11 and A.21. Thus, insofar as the complicity of A.3, A.11 and A.21 is concerned, the evidence of P.W.4 finds independent corroboration from scientific evidence. It is the further case of P.W.4 that he produced 16 chits Exs.P.21 to Ex.P.36 along with an amount of Rs.3,757/-. P.W.4 would say that he wrote the contents of Exs.P.21 and P.33 whereas A.21 wrote the contents found in the remaining exhibits. The same is corroborated by P.W.83 also. The learned senior counsel Mr. R. Shanmugasundaram contended that the document expert P.W.83 could not compare the signatures of the accused with the help of the documents forwarded by the Court but subsequent dispatch of certain documents by investigating officer directly to P.W.83 had only helped him to compare handwriting of A.3, A.6 and A.21 and therefore the evidence of P.W.83 should not be relied upon. I am unable to agree with this contention because P.W.85 sent only three note books of A.2 and 2 note books of P.W.4 directly. The admitted hand writings of A.3, A.6, A.11 and A.21 were sent only through the Court. Therefore, I hold that the evidence of P.W.4 stands corroborated by P.W.83 expert insofar as the complicity of A.3, A.11 and A.21 are concerned. Insofar as the receipts written by A.6, P.W.83 has not corroborated P.W.4 which shows that A.6 did not write any of the chits. Moreover, P.W.4 would say that para constables use to receive the "mamool" amount. The finding of P.W.83 that the writings of A.11 proved positive only shows that he has received certain amounts noted in the chits while on para duty. Hence I hold besides A.1, A.2 and A.3, A.11 and A.21 also guilty.
33.According to Sec. 13(1)(a) if a public servant habitually accepts or obtains for himself or for any other person any gratification other than legal remuneration as a motive or reward for doing or forbearing to do an official act as mentioned in Sec. 7, he shall be held liable. Here is a case, where the receipt of "mamool" by A.1, A.2, A.3, A.11, A.21 and also P.W.4 for themselves and for others has been proved. In the absence of any independent evidence to corroborate the version of P.W.4 that others also received the "mamool" amount, they cannot be held guilty of the offence. Even under Sec. 13(1)(d) obtaining for himself or for any other person any pecuniary advantage is an offence. Both these sections only punish the persons who either accept or obtain the gratification or pecuniary advantage either for themselves or/and for others but others could not be convicted without independent proof that they have received the gratification or pecuniary advantage as the case may be. Suppose P.W.4 is not an approver but an independent witness, his testimony alone may be held sufficient to prove the guilt of all the appellants concerned, but he, being an approver, without corroboration on material particulars or atleast of certain circumstances other accused cannot be convicted purely on the evidence of P.W.4. He gave evidence only with a view to save his skin by implicating others. P.Ws.6 to 71 who are the bootleggers turned hostile. Even though this court could hold on the basis of the evidence of P.Ws.2,4 and 5 that there was collection of "mamool" in the Prohibition Wing,. Kunjandiyur, I am unable to confirm the conviction of other accused except A.1, A.2, A.3, A.11 and A.21 only because of want of corroboration of the testimony of P.W.4. No doubt it is very difficult in such cases to prove the guilt of the accused, but the difficulty of the prosecution cannot lead to the misfortune of the accused. Neither P.W.2 nor P.W.5 speak about the distribution of the tainted money to any of the appellants. Therefore, I am inclined to give the benefit of doubt to other appellants.
34. The trial judge chose to convict A.3 along with other appellants for offences punishable under Sec. 13(2) read with 13(1)(a) and 13(2) read with 13(1)(d) and sentenced him to undergo R.I for one year and to pay a fine of Rs.2,000/- on each of the offences. He has also convicted him again for an offence punishable under Secs. 13(2) read with 13(1)(d) along with the offence punishable under Sec. 7 of the Prevention of Corruption Act and sentenced him to undergo R.I for one year and to pay a fine of Rs.2,000/- for each of the offences. Thus A.3 has been convicted twice for offences punishable under Sec. 13(2) read with 13(1)(d) which according to me is not proper.
35. In the result, the conviction of A.3 for offences punishable under Secs. 7, Sec. 13(2) read with 13(1)(a) and 13(2) read with 13(1)(d) of Prevention of Corruption Act stands confirmed and another conviction for the offence punishable under Secs. 13(2) read with 13(1)(d) is set aside and the fine amount of Rs.2,000/- paid for that offence is ordered to be refunded to him. The conviction of A.1, A.2, A.11 and A.21 for offence punishable under Sec. 13(2) read with 13(1)(a) and 13(2) read with 13(1)(d) stands confirmed. Other appellants are acquitted of the above charges and the fine amount paid by them is ordered to be refunded to them. All the appellants are acquitted of the charge for the offence punishable under Sec. 120-B IPC read with 13(2) read with 13(1)(a) and 13(1)(d) of Prevention of Corruption Act and the sentence of fine imposed on them for the said offence is also ordered to be refunded to them. Their bail bonds shall stand cancelled. Thus the appeal stands partly allowed.
36. The trial court is directed to secure the convicted appellants so as to cause them to undergo the remaining part of the sentence if any.
37. I am told that some of the appellants retired from service and some of the appellants were dismissed from service. Insofar as the acquitted appellants who were dismissed from service, the acquittal was recorded only by giving benefit of doubt to them, since evidence of approver does not find material corroboration, though there is ample proof that the Prohibition Enforcement Wing of Kunjandiyur have been receiving "mamool" i.e., illegal gratification. Therefore, in case they are reinstated in service they may have continuity of service for all other purposes except to claim any back wages or any other type of monetary benefit for the period they remained out of service.