Gujarat High Court
State Of Gujarat vs Ramdas Laljibhai Tandel (Detective ... on 10 September, 2024
NEUTRAL CITATION
R/CR.A/212/2008 JUDGMENT DATED: 10/09/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 212 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO Sd/-
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1 Whether Reporters of Local Papers may be allowed to YES
see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law NO
as to the interpretation of the Constitution of India or
any order made thereunder ?
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STATE OF GUJARAT
Versus
RAMDAS LALJIBHAI TANDEL (DETECTIVE INSPECTOR)
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Appearance:
MS. C.M.SHAH, APP for the Appellant(s) No. 1
MR ZUBIN F BHARDA for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 10/09/2024
ORAL JUDGMENT
1] This appeal has been filed by the appellant - State under Section 378(1)(3) of the Code of Criminal Procedure, 1973 against the judgment and order of acquittal dated 15/01/2007 passed by the learned Presiding Officer, Special Court, Surat (hereinafter referred to as the learned trial Court) in Special Page 1 of 28 Uploaded by VISHAL MISHRA(HC01088) on Tue Sep 24 2024 Downloaded on : Fri Sep 27 21:26:39 IST 2024 NEUTRAL CITATION R/CR.A/212/2008 JUDGMENT DATED: 10/09/2024 undefined (ACB) Case No. 9 of 2001, whereby, the learned trial Court was pleased to acquit the respondent from the offences punishable under Sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act (herein after referred to as 'the P.C.Act'). The respondent is hereinafter referred to as 'the accused' as he stood in the original case, for the sake of convenience, clarity and brevity.
2] The brief facts that emerge from the record of the case are as under:-
2.1] The accused Ramdas Laljibhai Tandel was working as a Detective Inspector at the octroi Check Post, Puna in the year 2000 and was a public servant. The complainant Ajabsinh Mulsinh Rathod, Police Inspector, ACB Police Station, Surat had concrete information that the employees and officers of Surat Mahanagarpalika at the octroi Check Post, under various pretexts were collecting illegal gratification from the drivers of vehicles and to verify the same the complainant decided to arrange for a decoy trap. The complainant called two panch witnesses and one Manojkumar Fulchand Sharma residing in the house of Parvat Kaka, opposite the vegetable Market, 32 Page 2 of 28 Uploaded by VISHAL MISHRA(HC01088) on Tue Sep 24 2024 Downloaded on : Fri Sep 27 21:26:39 IST 2024 NEUTRAL CITATION R/CR.A/212/2008 JUDGMENT DATED: 10/09/2024 undefined Room Building, Puna Village, Taluka Choryasi, District Surat and he was explained about the decoy trap and he agreed to cooperate. The panch witnesses and the decoy were introduced to the members of the raiding party and ASI Manilal was given ₹1000/-, which consisted of one currency note of the denomination of ₹500/-, four currency notes of the denomination of ₹100/- each and two currency notes of the denomination of ₹50/- each and the demonstration of anthracene powder and ultraviolet lamp was conducted in the presence of the panch witnesses and the characteristics of anthracene powder and ultraviolet lamp was explained to the panch witnesses. All the currency notes were smeared with anthracene powder by ASI Manilal and placed in the left pant pocket of the decoy and necessary instructions were given to the decoy and the panch witnesses. The panchnama Part I was drawn and the panch witnesses and the Trap Laying Officer affixed their signatures on the panchnama Part I. The panch witnesses, the decoy and members of the raiding party sat in government jeep No..GJ-1-G-
3754 and left from the ACB office to Ring Road, Sahara Gates and went onto to the Sardar Market Road to Puna village at the Page 3 of 28 Uploaded by VISHAL MISHRA(HC01088) on Tue Sep 24 2024 Downloaded on : Fri Sep 27 21:26:39 IST 2024 NEUTRAL CITATION R/CR.A/212/2008 JUDGMENT DATED: 10/09/2024 undefined Check Post of Surat Mahanagarpalika and halted the vehicle near NG Complex on the Surat Kadodra Road. They waited for a tempo and halted a three wheel tempo, which was loaded with marble bars and the driver was Gordhanbhai Surajmal Khatri, residing at Room No. 15, Subash Nagar, Puna Village, Taluka Choryasi District: Surat and the tempo had registration No. GJ- 5-V-1289. The panch No. 1, the decoy Manojkumar Fulchand Sharma and driver Gordhanbhai Surajmal Khatri of the three wheel tempo No. GJ-5-V-1289 sat in the tempo and the panch No. 2 and other members of the raiding party sat in government jeep No. GJ-1-G-3754 and went to the octroi Check Post at Puna and the decoy and the panch No. 1 went to window number three, and the decoy, and the accused had a conversation and the accused demanded an amount of ₹200/- as illegal gratification. The decoy took ₹200/- from the tainted currency notes and gave to the accused and the decoy gave the predetermined signal, and the members of the raiding party came and caught the accused. The tests were conducted and the tainted currency notes were recovered from the possession of the accused and the panchnama Part-II was drawn and the Trap Page 4 of 28 Uploaded by VISHAL MISHRA(HC01088) on Tue Sep 24 2024 Downloaded on : Fri Sep 27 21:26:39 IST 2024 NEUTRAL CITATION R/CR.A/212/2008 JUDGMENT DATED: 10/09/2024 undefined Laying Officer and the panch witnesses affixed their signatures on the panchnama Part-II. The complainant Aajasinh Mulsinh Rathod Police Inspector, ACB Police Station, Surat filed the complaint at ACB Police Station, Surat under Sections 7, 13(1)
(d) and 13(2) of the PC Act, which was registered at Surat ACB Police Station being C.R.No. 14 of 2000 on 28/12/2000. 2.2] The Investigating Officer recorded the statements of the connected witnesses and after the documents were seized, including the service record of the accused and the order of sanction for prosecution, a charge sheet was filed before the Session Court, Surat, which was registered as special ACB case No. 9 of 2001.
2.3] The accused was duly served with the summons from the learned trial Court and the accused appeared before the learned trial Court and after the due procedure of Section 207 of the Code of Criminal Procedure, 1973 was followed, a charge at Exh: 7 was framed against the accused and the statement of the accused was recorded at Exh: 8. The accused denied all contents of the charge and the evidence of the prosecution was taken on record.
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NEUTRAL CITATION R/CR.A/212/2008 JUDGMENT DATED: 10/09/2024 undefined 2.4] The prosecution has produced the following oral as well as documentary evidences in support of their case.
ORAL EVIDENCE Sr. Prosecution Name of the witnesses Exhibits No. Witness 1 P.W.No. 1 Bhupatbhai Natwarlal Kamli Exh:12 2 P.W.No.2 Gordhanbhai Sureshbhai Exh:17 3 P.W.No.3 Ajabsinh Mulsinh Rathod Exh:21 4 P.W.No.4 Manilal Karshanbhai Ubaliya Exh:32 5 P.W.No.5 Kirtikumar Manchhabhai Exh:37 Chauhdary DOCUMENTARY EVIDENCE Sr. Name of the particulars Exhibits No 1 Complaint Exh:22 2 panchnama Exh:13 3 Seized muddamal receipt Exh:23 4 Seized muddamal receipt Exh:24 5 Seized muddamal receipt Exh:25 6 Arrest panchnama Exh:38 7 Sanction for prosecution Exh:39 Page 6 of 28 Uploaded by VISHAL MISHRA(HC01088) on Tue Sep 24 2024 Downloaded on : Fri Sep 27 21:26:39 IST 2024 NEUTRAL CITATION R/CR.A/212/2008 JUDGMENT DATED: 10/09/2024 undefined 2.5] After the closing pursis was filed by the learned Additional Public Prosecutor at Exh:42, the further statement of the accused under Section 313 of the Code Of Criminal Procedure, 1973 was recorded, wherein, the accused denied all the evidence produced by the prosecution and after the arguments of the learned Additional Public Prosecutor and the learned Advocate for the accused were heard, the learned trial Court was pleased to pass the impugned judgment and order of acquittal.
3] Being aggrieved and dissatisfied with the judgement and order of acquittal, the Appellant-State has filed the present appeal mainly stating that the judgement and order is contrary to law and evidence on record and the principles of justice and is based on inferences, not warranted by facts of the case and also on presumptions, not permitted by law. The trial Court thought to have seen that there are direct and indirect evidence connecting the respondent with the crime and without appreciating the oral as well as documentary evidence on record of the case, the learned trial Court has straightaway arrived at a conclusion that the prosecution has failed to prove Page 7 of 28 Uploaded by VISHAL MISHRA(HC01088) on Tue Sep 24 2024 Downloaded on : Fri Sep 27 21:26:39 IST 2024 NEUTRAL CITATION R/CR.A/212/2008 JUDGMENT DATED: 10/09/2024 undefined the case beyond reasonable doubts. That the panch No. 1 has clearly supported the case of the prosecution and there was no reason to disbelieve the case of the prosecution, but the learned trial Court has not appreciated the oral evidence of the panch witness properly and the learned trial Court has failed to appreciate that the decoy Manojkumar was not traceable and he could not be examined by the prosecution during trial. The other witnesses have fully supported the case of the prosecution, but the learned trial Court has committed an error in giving undue importance to the evidence of the decoy Manoj Kumar and even though it is crystal clear that the prosecution has proved its case beyond reasonable doubts in respect of demand, acceptance, and recovery, has passed the impugned judgement and order of acquittal. The prosecution has not examined the competent authority for the sanction for prosecution, but no dispute was raised by the defence on the point of sanction, but the learned trial Court has committed a grave error in holding that the prosecution has not examined the competent authority to prove the order of sanction for prosecution and has held that the sanction is illegal, incorrect Page 8 of 28 Uploaded by VISHAL MISHRA(HC01088) on Tue Sep 24 2024 Downloaded on : Fri Sep 27 21:26:39 IST 2024 NEUTRAL CITATION R/CR.A/212/2008 JUDGMENT DATED: 10/09/2024 undefined and bad in law. The learned trial Court has not appreciated that traces of anthracene powder were found on the hands and clothes of the respondent and the impugned judgement and order of acquittal is illegal, erroneous, contrary to the evidence on record and against the settled position of law and deserves to be quashed and set aside.
4] Heard learned Additional Public Prosecutor Ms. Jirga Jhaveri appearing for the appellant-State and learned advocate Mr. Zubin Bharda for the respondent-accused. Perused the impugned judgment and order of acquittal and have reappreciated the entire evidence of the prosecution on record of the case.
5] Learned APP Ms Jirga Jhaveri has taken this Court through the entire evidence of the prosecution and has submitted that the prosecution has proved the case beyond reasonable doubts from the evidence of the panch witness and all the ingredients of demand, acceptance and recovery have been proved. That even though the decoy Manojkumar could not be traced out and his evidence could not be recorded before the learned trial Court, the evidence of the other witnesses prove Page 9 of 28 Uploaded by VISHAL MISHRA(HC01088) on Tue Sep 24 2024 Downloaded on : Fri Sep 27 21:26:39 IST 2024 NEUTRAL CITATION R/CR.A/212/2008 JUDGMENT DATED: 10/09/2024 undefined the case of the prosecution, but the learned trial Court has not considered the same. That the Trap Laying Officer and the Investigating Officer have fully supported the case of the prosecution and the learned trial Court has not appreciated the entire evidence in proper perspective and the impugned judgement and order is required to be quashed and set aside and the respondent must be found guilty for the said offences. 6] Learned advocate Mr. Zubin Bharda for the respondent has submitted the prosecution has examined five witnesses but has not proved the case beyond reasonable doubts and if the panchnama produced at Exh: 13 is produced, there are corrections in three places and there is no signature of the panch witness No. 2 in the places where the corrections have been made. The panch witness, who has been examined at Exh: 12, has not disclosed what amount of illegal gratification was demanded by the accused, and the place where the accused demanded for the amount. That in fact, the tempo driver had made fake bills and in the panchnama, the textile bill has not been produced and the tempo driver had bills for stone pillars. The case of the prosecution is not clearly made out and the Page 10 of 28 Uploaded by VISHAL MISHRA(HC01088) on Tue Sep 24 2024 Downloaded on : Fri Sep 27 21:26:39 IST 2024 NEUTRAL CITATION R/CR.A/212/2008 JUDGMENT DATED: 10/09/2024 undefined tempo driver, who has been examined at Exh: 17 has stated that when the decoy went to pay the octroi, he was standing near the tempo and it is clear that he has not heard any demand of illegal gratification being made by the accused and has not seen the accused accept any amount of illegal gratification. That the prosecution has not proved the ingredients of demand and acceptance and the learned trial Court has discussed all the evidence in proper perspective and in a well judgement has acquitted the respondent and no interference is required. The appellant-state has not been able to show that there is any illegality or perversity in the judgement and learned Advocate has urged this court to reject the appeal of the appellant. 7] At the outset, before discussing the facts of the present case, it would be appropriate to refer to the observations of the Apex Court in the case of Mallappa & Ors. Vs. State of Karnataka passed in Criminal Appeal No.1162 of 2011 on 12.02.2024, wherein, the Apex Court has observed in Para Nos. 24 to 26, as under:
"24. We may firstly discuss the position of law regarding the scope of intervention in a criminal appeal. For, that is the foundation of this challenge. It is the cardinal principle of criminal jurisprudence that there is a presumption of innocence in favour of the accused, unless proven guilty. The presumption continues at all stages of the trial and finally culminates into a Page 11 of 28 Uploaded by VISHAL MISHRA(HC01088) on Tue Sep 24 2024 Downloaded on : Fri Sep 27 21:26:39 IST 2024 NEUTRAL CITATION R/CR.A/212/2008 JUDGMENT DATED: 10/09/2024 undefined fact when the case ends in acquittal. The presumption of innocence gets concertized when the case ends in acquittal. It is so because once the Trial Court, on appreciation of the evidence on record, finds that the accused was not guilty, the presumption gets strengthened and a higher threshold is expected to rebut the same in appeal.
25. No doubt, an order of acquittal is open to appeal and there is no quarrel about that. It is also beyond doubt that in the exercise of appellate powers, there is no inhibition on the High Court to re-appreciate or re-visit the evidence on record. However, the power of the High Court to reappreciate the evidence is a qualified power, especially when the order under challenge is of acquittal. The first and foremost question to be asked is whether the Trial Court thoroughly appreciated the evidence on record and gave due consideration to all material pieces of evidence. The second point for consideration is whether the finding of the Trial Court is illegal or affected by an error of law or fact. If not, the third consideration is whether the view taken by the Trial Court is a fairly possible view. A decision of acquittal is not meant to be reversed on a mere difference of opinion. What is required is an illegality or perversity.
26. It may be noted that the possibility of two views in a criminal case is not an extraordinary phenomenon. The 'two-views theory' has been judicially recognized by the Courts and it comes into play when the appreciation of evidence results into two equally plausible views. However, the controversy is to be resolved in favour of the accused. For, the very existence of an equally plausible view in favour of innocence of the accused is in itself a reasonable doubt in the case of the prosecution. Moreover, it reinforces the presumption of innocence. And therefore, when two views are possible, following the one in favour of innocence of the accused is the safest course of action. Furthermore, it is also settled that if the view of the Trial Court, in a case of acquittal, is a plausible view, it is not open for the High Court to convict the accused by reappreciating the evidence. If such a course is permissible, it would make it practically impossible to settle the rights and liabilities in the eyes of law. In Selvaraj v. State of Karnataka, "13. Considering the reasons given by the trial Court and on appraisal of the evidence, in our considered view, the view taken by the trial Court was a possible one. Thus, the High Court should not have interfered with the judgment of acquittal. This Court in Jagan M. Seshadri v. State of T.N. [(2002) 9 SCC 639] has laid down that as the appreciation of evidence made by the trial Court while recording the acquittal is a reasonable view, it is not permissible to interfere in appeal. The duty of the High Court while reversing the acquittal has been dealt with by this Court, thus:Page 12 of 28 Uploaded by VISHAL MISHRA(HC01088) on Tue Sep 24 2024 Downloaded on : Fri Sep 27 21:26:39 IST 2024
NEUTRAL CITATION R/CR.A/212/2008 JUDGMENT DATED: 10/09/2024 undefined "9. ...We are constrained to observe that the High Court was dealing with an appeal against acquittal. It was required to deal with various grounds on which acquittal had been based and to dispel those grounds. It has not done so. Salutary principles while dealing with appeal against acquittal have been overlooked by the High Court. If the appreciation of evidence by the trial Court did not suffer from any flaw, as indeed none has been pointed out in the impugned judgment, the order of acquittal could not have been set aside. The view taken by the learned trial Court was a reasonable view and even if by any stretch of imagination, it could be said that another view was possible, that was not a ground sound enough to set aside an order of acquittal."" (emphasis supplied) In Sanjeev v. State of H.P., the Hon'ble Supreme Court analyzed the relevant decisions and summarized the approach of the appellate Court while deciding an appeal from the order of acquittal. It observed thus:-
"7. It is well settled that: -
7.1. While dealing with an appeal against acquittal, the reasons which had weighed with the trial Court in acquitting the accused must be dealt with, in case the appellate Court is of the view that the acquittal rendered by the trial Court deserves to be upturned (see Vijay Mohan Singh v. State of Karnataka5, Anwar Ali v. State of H.P.) 7.2. With an order of acquittal by the trial Court, the normal presumption of innocence in a criminal matter gets reinforced (see Atley v. State of U.P.) 7.3. If two views are possible from the evidence on record, the appellate Court must be extremely slow in interfering with the appeal against acquittal (see Sambasivan v. State of Kerala)."
7.1] In Para - 36, the Apex Court, in the case of Mallappa (Supra), has observed as under:-
"36. Our criminal jurisprudence is essentially based on the promise that no innocent shall be condemned as guilty. All the safeguards and the jurisprudential values of criminal law, are intended to prevent any failure of justice. The principles which come into play while deciding an appeal from acquittal could Page 13 of 28 Uploaded by VISHAL MISHRA(HC01088) on Tue Sep 24 2024 Downloaded on : Fri Sep 27 21:26:39 IST 2024 NEUTRAL CITATION R/CR.A/212/2008 JUDGMENT DATED: 10/09/2024 undefined be summarized as:-
(i) Appreciation of evidence is the core element of a criminal trial and such appreciation must be comprehensive - inclusive of all evidence, oral or documentary;
(ii) Partial or selective appreciation of evidence may result in a miscarriage of justice and is in itself a ground of challenge;
(iii) If the Court, after appreciation of evidence, finds that two views are possible, the one in favour of the accused shall ordinarily be followed;
(iv) If the view of the Trial Court is a legally plausible view, mere possibility of a contrary view shall not justify the reversal of acquittal;
(v) If the appellate Court is inclined to reverse the acquittal in appeal on a re-appreciation of evidence, it must specifically address all the reasons given by the Trial Court for acquittal and must cover all the facts;
(vi) In a case of reversal from acquittal to conviction, the appellate Court must demonstrate an illegality, perversity or error of law or fact in the decision of the Trial Court.
7.2] The Apex Court, in the case of Neeraj Dutta Vs. State (Govt. of N.C.T. of Delhi) reported in 2022 0 Supreme (SC) 1248, has observed in Para No. 68 as under:
"68. What emerges from the aforesaid discussion is summarised as under: -
(a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13 (1)(d) (I) and(ii) of the Act.
(b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence Page 14 of 28 Uploaded by VISHAL MISHRA(HC01088) on Tue Sep 24 2024 Downloaded on : Fri Sep 27 21:26:39 IST 2024 NEUTRAL CITATION R/CR.A/212/2008 JUDGMENT DATED: 10/09/2024 undefined which can be in the nature of oral evidence or documentary evidence.
(c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence.
(d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind:
(i) if there is an offer to pay by the bribe giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant.
(ii) On the other hand, if the public servant makes a demand and the bribe giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment.
In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Section 13 (1)(d)(i) and (ii) of the Act.
(iii) In both cases of (i) and (ii) above, the offer by the bribe giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Section 13 (1) (d),
(i) and (ii) respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe giver and inturn there is a payment made which is received by the public servant, would be an offence of obtainment under Section 13 (1)(d) and (i) and (ii) of the Act.
(e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be Page 15 of 28 Uploaded by VISHAL MISHRA(HC01088) on Tue Sep 24 2024 Downloaded on : Fri Sep 27 21:26:39 IST 2024 NEUTRAL CITATION R/CR.A/212/2008 JUDGMENT DATED: 10/09/2024 undefined made by a Court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the Court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands.
(f) In the event the complainant turns 'hostile', or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant.
(g) In so far as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the Court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the Court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Section 13 (1) (d) (i) and (ii) of the Act.
(h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in point (e) as the former is a mandatory presumption while the latter is discretionary in nature."
8] As per the settled principles of law, which are very well crystallized with regard to the interference of the Appellate Court in acquittal appeals, the evidence produced by the prosecution must be re-appreciated and only if there is perversity or illegality in the impugned judgment and order, an interference of the Appellate Court would be warranted. It is Page 16 of 28 Uploaded by VISHAL MISHRA(HC01088) on Tue Sep 24 2024 Downloaded on : Fri Sep 27 21:26:39 IST 2024 NEUTRAL CITATION R/CR.A/212/2008 JUDGMENT DATED: 10/09/2024 undefined also settled that if two views are possible and the learned trial Court has taken a view of acquitting the accused, the Appellate Court should not interfere with the impugned judgment and order and it is open for the Appellate Court to re-appreciate the evidence.
9] In view of the above settle principles of law, with regard to acquittal appeals and cases filed under the PC act, the evidence of the prosecution is required to re-appreciated and to bring home the charge against the accused, the prosecution has examined Prosecution Witness No. 1 Bhupatbhai Natwarlal Kamli at Exh:12 and the witness is the panch witness, who has stated that, on 27/12/2000, he had gone to the ACB office with the other panch witness Kundanbhai Balubhai Chaudhary and met the Trap Laying Officer, Police Inspector Mr. Rathod. The witness has stated that they were shown the currency notes and they had gone to Kumbia in the ACB jeep with the ACB staff and the complainant Manojbhai. The person at the octroi Check Post asked for the bill but the complainant stated that he did not have the bill and the complainant gave the accused two currency notes of the denomination of ₹100/- each which were Page 17 of 28 Uploaded by VISHAL MISHRA(HC01088) on Tue Sep 24 2024 Downloaded on : Fri Sep 27 21:26:39 IST 2024 NEUTRAL CITATION R/CR.A/212/2008 JUDGMENT DATED: 10/09/2024 undefined tainted with anthracene powder and the accused took the money with his right hand and put it in his pant pocket. The complainant paid the amount of octroi and gave the predetermined signal and the members of the raiding party came and seized the currency notes from the pocket of the accused and the currency notes were recovered by the panch No. 2.
During the cross examination by the learned advocate for the accused, the witness has stated that Manojkumar was working in a cloth store and he does not remember what questions were asked by the Trap Laying Officer to Manojkumar. The bills of cloth were fake bills and there was no cloth and when they left from the ACB office, it was decided that the cloth merchants were being harassed and hence they took the cloth bills for cloth. The bill of the marble was with the tempo driver and if at the octroi Check Post, the price of the goods are shown less, the actual octroi can be collected and the place at the octroi Check Post was crowded. 9.1] The prosecution has examined Prosecution Witness No. 2 Gordhanbhai Sureshbhai at Exh: 17 and the witness is the Page 18 of 28 Uploaded by VISHAL MISHRA(HC01088) on Tue Sep 24 2024 Downloaded on : Fri Sep 27 21:26:39 IST 2024 NEUTRAL CITATION R/CR.A/212/2008 JUDGMENT DATED: 10/09/2024 undefined tempo driver, who has stated that, at the time of the incident, he was driving a three wheel tempo and was going from Vav to Puna octroi Check Post with Tempo No. 1289. Police Inspector Rathod Sahib met him at Parvat Patia, when he was passing Parvat Patia to go to Vav. Chaudhary Sahib was with Rathod Sahib and they had fifty pieces of marble in the tempo. The tempo was being driven by Manojbhai and they halted at the octroi Check Post and Manojbhai went to pay the octroi but he does not remember anything else. The witness has not supported the case of the prosecution and has been declared hostile and has been cross examine at length by the learned APP but no incident to support the case of the prosecution has come on record.
During the cross examination by the learned advocate for the accused, the witness has stated that he goes by Puna Check Post often, and at the time of the incident, Manojkumar was driving the tempo and there were a number of vehicles at the Check Post to pay the octroi. That there are a number of police person at the octroi Check Post and Manojbhai had gone to pay the octroi, he was standing at the tempo.
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NEUTRAL CITATION R/CR.A/212/2008 JUDGMENT DATED: 10/09/2024 undefined 9.2] The prosecution has examined Prosecution Witness No. 3 Ajabsinh Mulsinh Rathod at Exh: 21 and the witness is the Trap Laying Officer, who has fully supported the case of the prosecution and has narrated in detail all the procedure that was undertaken by him on 26/12/2020 and 07/12/2000. The witness has stated that he had called the decoy Manojkumar and the panch witnesses and had gone to find a five wheel tempo and all the instructions were given to the decoy and the panch witnesses. That he had instructed ASI Manilal to conduct the demonstration of anthracene powder and ultraviolet lamp and the characteristics of anthracene powder and ultraviolet lamp were explained to the decoy and the panch witnesses. The currency notes, which were smeared with an anthracene powder were placed in the pant pocket of the decoy Manojkumar and he had given ₹2500/- to the decoy. That they went to complex and halted a three wheel tempo No. GJ-5-V- 1289, which was loaded with fifty pieces of marble of 2.1/2 feet each in length and the driver was explained for the decoy trap and he agreed to cooperate and the decoy, and panch No. 1 sat in the tempo and went to the Puna octroi Check Post. That after Page 20 of 28 Uploaded by VISHAL MISHRA(HC01088) on Tue Sep 24 2024 Downloaded on : Fri Sep 27 21:26:39 IST 2024 NEUTRAL CITATION R/CR.A/212/2008 JUDGMENT DATED: 10/09/2024 undefined the predetermined signal was given, he and the other members of the raiding party and the panch No. 2 rushed and caught the accused and the tainted currency notes of ₹200/- were recovered from the pocket of the accused.
During the cross examination by the learned advocate for the accused, the witness has stated that the information received by him was around 26/12/2000 and no particular octroi Check Post was mentioned in the information received. That there are a number of vehicles coming into Surat from the Puna octroi Check Post and Varacha Road and he had directly contacted the decoy Manojkumar. That he had got the forms for payment of October from his secret informer and a nominal fee has to be paid for the forms but he had not paid any fees for the forms. That the money used for the trap was from his own personal money and he had sent a report to the office and had received the amount from the government. The tempo driver did not have any bill or receipt of the goods that were in the tempo and he did not inquire from the tempo driver as to which shop the marble bars were brought from. That the date mentioned in the panchnama on page No. 4 is 27/28-12- 2000 and there are Page 21 of 28 Uploaded by VISHAL MISHRA(HC01088) on Tue Sep 24 2024 Downloaded on : Fri Sep 27 21:26:39 IST 2024 NEUTRAL CITATION R/CR.A/212/2008 JUDGMENT DATED: 10/09/2024 undefined some corrections on page No. 7 of the panchnama produced at Exh: 13. That the Decoy Manojkumar had paid the octroi before giving the predetermined signal and the amount of octroi was decided as per the form filled by the decoy. The hands of Clerk Modi were not seen in the ultraviolet lamp and as per his information, the decoy had first paid the amount of illegal gratification and had thereafter paid the amount of octroi. That on the day of the trap, there were more than one Detective Inspectors present at the octroi Check Post and all the Detective Inspectors were seated at one place. The Trap Laying Officer, Police Inspector Rathod is also the complainant, who has produced the complaint that Exh: 22.
9.3] The prosecution has examined Prosecution Witness No. 4 Manilal Karshanbhai Ukhaliya at Exh: 32, and the witness was a member of the raiding party and the lamp operator during the trap. The witness has fully supported the case of the prosecution and has narrated all the details and procedures that were undertaken prior to the trap and after the trap.
During the cross examination by the learned advocate for the accused, the witness has stated that Police Inspector, Page 22 of 28 Uploaded by VISHAL MISHRA(HC01088) on Tue Sep 24 2024 Downloaded on : Fri Sep 27 21:26:39 IST 2024 NEUTRAL CITATION R/CR.A/212/2008 JUDGMENT DATED: 10/09/2024 undefined Rathod had called him to his chamber on 27/12/2000 at 15:30 hours and when they went from the ACB Office for the trap, they had the bills of cloth with them and they had decided to take a five wheel tempo for the trap but when they were standing at Magob Patiya, no five wheel, tempo passed by and the tempo that they had halted, was going from Puna village to village towards Kadodra and was not going to Surat. That when they halted the three wheel tempo, they made a false bill and placed it in the pocket of the decoy and in the bogus bill, the amount of goods of ₹9000/- were shown but the decoy Manojkumar paid octroi for goods worth ₹11,000/-. That when the decoy gave the predetermined signal, and they reached the decoy, he had already paid an amount of ₹468/- as octroi from the amount of ₹2500/- given by Police Inspector, Shri Rathod to the decoy.
9.4] The prosecution has examined Prosecution Witness No. 5 Kirtikumar Manchabhai Chaudhary at Exh: 37 and the witness is the Investigating Officer, who has recorded the statements of the connected witnesses and collected the necessary documents including the order of sanction for Page 23 of 28 Uploaded by VISHAL MISHRA(HC01088) on Tue Sep 24 2024 Downloaded on : Fri Sep 27 21:26:39 IST 2024 NEUTRAL CITATION R/CR.A/212/2008 JUDGMENT DATED: 10/09/2024 undefined prosecution, which is produced at Exh: 39. The witness has thereafter filed the charge-sheet before the Session Court.
During the cross examination by the learned advocate for the accused, the witness stated that at the time of the trap, he was a member of the raiding party and the decoy had come to the ACB office on the instructions of Police Inspector, Rathod. That he does not know what work was being done by the decoy and in his presence, Police Inspector, Rathod did not question the decoy. That he did not record the statement of Police Inspector - Rathod as to why he had chosen Manojkumar as the decoy and at the time of the trap, there were many other officers present at the Puna octroi Check Post besides the accused. That the Trap Laying Officer did not give him any list of officers present at the Check Post and the octroi Check Post was continuously having vehicles passing by. That when he got the investigation papers, the statement of the decoy Manoj Kumar was not in the papers.
10] On minute appreciation of the entire evidence of the prosecution, the infirmities in the case of the prosecution have come on record and as per the case of the prosecution, Page 24 of 28 Uploaded by VISHAL MISHRA(HC01088) on Tue Sep 24 2024 Downloaded on : Fri Sep 27 21:26:39 IST 2024 NEUTRAL CITATION R/CR.A/212/2008 JUDGMENT DATED: 10/09/2024 undefined Manojkumar Fulchand Sharma was the decoy from whom the accused had demanded the amount of illegal gratification, and Manojkumar Fulchand Sharma would be the best witness to depose as to whether the accused had demanded the amount of illegal gratification or not. They said decoy Manojkumar Fulchand Sharma, who had been called by the complainant and the Trap Laying Officer, Police Inspector- Mr.Rathod has not been examined before the learned trial Court as he could not be traced during the trial. In the absence of the evidence of the decoy, the factum of demand, which is a sine-qua-non for the offence under Section 7 of the PC Act is not proved beyond reasonable doubts. As per the case of the prosecution, the decoy Manojkumar Fulchand Sharma and the panch witness sat in tempo of Gordhanbhai Sureshbhai and they had gone to the octroi Check Post, but they said tempo driver Gordhanbhai Sureshbhai, who has been examined at Exh: 17 has turned hostile and in his evidence, there is no iota of evidence to suggest that any such kind of a decoy trap was arranged and the decoy Manojkumar Fulchand Sharma and the panch witness No. 1 Bhupendrabhai Natwarlal Kambli had gone for the decoy trap Page 25 of 28 Uploaded by VISHAL MISHRA(HC01088) on Tue Sep 24 2024 Downloaded on : Fri Sep 27 21:26:39 IST 2024 NEUTRAL CITATION R/CR.A/212/2008 JUDGMENT DATED: 10/09/2024 undefined to the Puna octroi Check Post. The prosecution has not proved the demand and the other witnesses. Prosecution Witness No. 3 Ajabsingh Mulsinh Rathod, the Trap Laying Officer, Prosecution Witness No. 4 Manilal Karshanbhai Ukhaliyam, the lamp operator and Prosecution Witness No. 5 Kirtikumar Manchabhai Chaudhary, the Investigating Officer are not the witnesses of the demand or acceptance, from the entire evidence and the prosecution has not proved the case beyond reasonable doubts. 11] As per the settled principles of law, the appellate Court would not ordinarily interfere with the order of acquittal unless after appreciation of the evidence, it appears that the judgement and order of the learned trial Court is vitiated by some manifest illegality and the conclusion arrived at by the learned trial Court is such that would not be arrived at by any reasonable person, and the decision is perverse. It is also settled law that the presumption of innocence of the accused is strengthened by the judgement of acquittal and the golden thread, which runs through the web of administration of justice in criminal cases is that when there are two views possible, the view in favour of the accused must be adopted. An appellate Page 26 of 28 Uploaded by VISHAL MISHRA(HC01088) on Tue Sep 24 2024 Downloaded on : Fri Sep 27 21:26:39 IST 2024 NEUTRAL CITATION R/CR.A/212/2008 JUDGMENT DATED: 10/09/2024 undefined Court has full power to reappreciate and reconsider the entire evidence of the prosecution and would interfere only if there are substantial and compelling reasons that the judgement is perverse and illegal.
12] In view of the decision of the Apex Court in the case of Mallappa (supra), this Court is of the opinion that the learned trial Court has appreciated the entire evidence of the prosecution and there does not appear to be any infirmity and illegality in the impugned judgment and order of acquittal. The learned Trial Court has appreciated all the evidence and this Court is of the considered opinion that the learned Trial Court was completely justified in acquitting the accused of the charges leveled against him. The findings recorded by the learned Trial Court are absolutely just and proper and no illegality or infirmity has been committed by the learned trial Court and this Court is in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the learned Trial Court. This Court finds no reason to interfere with the impugned judgment and order and the present appeal is devoid of merits and resultantly, the same is dismissed. Page 27 of 28 Uploaded by VISHAL MISHRA(HC01088) on Tue Sep 24 2024 Downloaded on : Fri Sep 27 21:26:39 IST 2024
NEUTRAL CITATION R/CR.A/212/2008 JUDGMENT DATED: 10/09/2024 undefined 13] The impugned judgment and order of acquittal order dated 15/01/2007 passed by the learned Presiding Officer, Special Court, Surat in Special (ACB) Case No. 9 of 2001 is hereby confirmed.
14] Bail bond stands canceled. Record and proceedings be sent back to the concerned Trial Court forthwith.
Sd/-
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