Gujarat High Court
Vinodchandra Thakorlal Rana vs State Of Gujarat on 22 July, 2024
NEUTRAL CITATION
R/CR.A/2594/2005 JUDGMENT DATED: 22/07/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 2594 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? Yes
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of
the judgment ? No
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of No
India or any order made thereunder ?
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VINODCHANDRA THAKORLAL RANA
Versus
STATE OF GUJARAT
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Appearance:
MR ARPIT A KAPADIA(3974) for the Appellant(s) No. 1
MS. C.M. SHAH, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 22/07/2024
ORAL JUDGMENT
1. This appeal has been filed by the appellant - original accused under Section 374 of Code of Criminal Procedure, 1973 against the judgement and order of conviction passed by the learned Special Judge (ACB), Fast Track Court No. 3, Page 1 of 41 Downloaded on : Fri Aug 16 20:56:32 IST 2024 NEUTRAL CITATION R/CR.A/2594/2005 JUDGMENT DATED: 22/07/2024 undefined Bharuch (hereinafter referred to as "the learned Trial Court") in Special ACB Case No. 2/2003 on 16.12.2005, whereby, the learned Trial Court has convicted the appellant - original accused for the offence punishable under Section 7, 13(1)(d) read with Section 13(2) of The Prevention of Corruption Act, 1988 (hereinafter referred to as "the PC Act").
1.1 The appellant 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 That the accused was working as a Head Clerk in the Office of Superintendent of Police, Bharuch in the year 2002 and was a public servant. That the complainant -
Bhagwanbhai Govindbhai Chauhan was a Constable in Prohibition and Excise Department and on 11.07.2002, was promoted as a Second Grade Head Constable and posted at Nabipur Police Station. That the complainant - Bhagwanbhai Govindbhai Chauhan had given an Page 2 of 41 Downloaded on : Fri Aug 16 20:56:32 IST 2024 NEUTRAL CITATION R/CR.A/2594/2005 JUDGMENT DATED: 22/07/2024 undefined application requesting that his services remain in the Prohibition and Excise Police Station on 03.08.2002 and met the accused and at that time, the accused had told him that the report was received and to come to the office and meet him. That once again, another request report was sent on 20.08.2002 and three to four days after that, the complainant met the accused where the accused demanded for an amount of Rs. 4000/- as illegal gratification. That once again the complainant met the accused on 11.09.2002 where the amount of illegal gratification of Rs. 4000/- was demanded and the complainant stated that he would pay the amount at his house. That the complainant did not want to give the amount of illegal gratification and went to the ACB Police Station, Bharuch and filed the complaint which was registered at C.R. No. 08/2002 on 19.09.2002 under Sections 7, 13(1)(d) and 13(2) of the PC Act. 2.2 The Trap Laying Officer called the panch witnesses on 12.09.2002 and introduced them to the complainant and the complainant gave eight currency notes of the denomination of Rs. 500/- each to the Trap Laying Officer. Page 3 of 41 Downloaded on : Fri Aug 16 20:56:32 IST 2024
NEUTRAL CITATION R/CR.A/2594/2005 JUDGMENT DATED: 22/07/2024 undefined That the demonstration of anthracene powder and ultraviolet lamp was done by Assistant Sub-Inspector - Sigabhai in the presence of the complainant and the panch witnesses and the characteristics of anthracene powder and ultraviolet lamp were explained to them and all the currency notes of Rs. 4000/- were smeared with anthracene powder by Assistant Sub-Inspector - Sigabhai and folded and placed in the left shirt pocket of the complainant. That necessary instructions were given to the complainant and the panch witnesses and the panchnama part-I was drawn and the signatures of the panch witnesses as also the Trap Laying Officer was taken. As decided, the complainant, panch witnesses and members of the raiding party went in jeep bearing registration no. GJ-1-G- 3755 from Panch Batti, Seva Ashram Road, Shaktinath Railway Crossing to Anandnagar Society and they halted the jeep a little bit away from the residence of the accused. That the complainant and the panch no. 1 walked to the residence of the accused and the members of the raiding party and the other panch witness spread themselves out at a little Page 4 of 41 Downloaded on : Fri Aug 16 20:56:32 IST 2024 NEUTRAL CITATION R/CR.A/2594/2005 JUDGMENT DATED: 22/07/2024 undefined distance away from the house of the accused. That the complainant and the panch witness went into the house and met the accused and at that time, the accused demanded for the amount of illegal gratification and the complainant took the tainted currency notes from his left shirt pocket and gave it to the accused who accepted it with his right hand and counted the amount with both the hands and left the amount in his right hand. That at that time, the complainant came out and gave the predetermined signal and the members of the raiding party came and caught the accused red handed and the tainted currency notes were recovered. That panchnama part-II was drawn and was signed by the panch witnesses and the Trap Laying Officer. 2.3 That the Investigating Officer recorded the statements of the connected witnesses and seized the necessary documents including the service record of the accused and after the order of sanction for prosecution was received, a charge-sheet came to be filed before the Sessions Court, Bharuch which was registered at Special ACB Case no. 2/2003.
Page 5 of 41 Downloaded on : Fri Aug 16 20:56:32 IST 2024
NEUTRAL CITATION R/CR.A/2594/2005 JUDGMENT DATED: 22/07/2024 undefined 2.4 The accused was duly served with the summons and the accused appeared before the learned Trial Court, and after the due procedure under Section 207 of the Code of Criminal Procedure was followed, a charge at Exh. 19 was framed against the accused and the statement of the accused was recorded at Exh. 20, wherein, the accused denied all the allegations made in the charge and the entire evidence of the prosecution was taken on record. 2.5 The prosecution produced the following oral evidence to bring home the charge against the accused.
Sr. No. PW Particulars Exh. 1. 1 Bhagwanbhai Govindbhai Chauhan 29 2. 2 Pravinchandra Manilal Nizama 35 3. 3 Amarsinh Vestabhai Vasava 40 4. 4 Nareshchandra Koralwala 42 5. 5 Rajdhar Dolatrao Marathe 44 2.6 The prosecution also produced the following
documentary evidence to bring home the charge against the accused.
Sr. No. Particulars Exh. 1. Letter 25 2. Letter 26 Page 6 of 41 Downloaded on : Fri Aug 16 20:56:32 IST 2024 NEUTRAL CITATION R/CR.A/2594/2005 JUDGMENT DATED: 22/07/2024 undefined 3. Letter 27 4. Letter 28 5. Complaint 30 6. Panchnama 37 7. Seizure List 38 8. Report from DSP 41 9. Letter 43 10. Panchnama of body of accused 45 11. Order of sanction for prosecution 46
2.7 That after the closing pursis was submitted by the learned APP vide Exh. 47, the further statement of the accused under Section 313 of Cr.P.C. was recorded, wherein, the accused denied all the evidence of the prosecution. After the evidence of the accused was closed, the arguments of the learned Additional Public Prosecutor and the learned advocate for the accused were heard and the learned Trial Court by the impugned judgement and order dated 16.12.2005 was pleased to convict the accused and sentence him to rigorous imprisonment of five years and fine of Rs. 10,000/- and in default, simple imprisonment of six months for the offence under Section 7 of the PC Act and rigorous imprisonment of five years and Page 7 of 41 Downloaded on : Fri Aug 16 20:56:32 IST 2024 NEUTRAL CITATION R/CR.A/2594/2005 JUDGMENT DATED: 22/07/2024 undefined fine of Rs. 20,000/- and in default, simple imprisonment of nine months for the offence under Section 13(1)(d) read with 13(2) of the PC Act. The learned Trial Court was further pleased to order both the sentences run concurrently.
3. Being aggrieved and dissatisfied with the said impugned judgement and order of conviction, the appellant
- original accused has filed the present appeal mainly stating that the impugned judgement and order of conviction is absolutely bad and illegal and against the weight of evidence on record as the main ingredients of initial demand and demand, acceptance and recovery are not established beyond reasonable doubts. That the learned Trial Court has committed a serious error of law and fact in drawing the presumption under Section 20 of the PC Act and the presumption is an inference of a certain fact drawn from other proved facts. While inferring the existence of a fact from another, the Court is applying the process of intelligent reasoning which a man with a prudent mind would do under similar circumstances. This presumption under Section 20 of the PC Act is available for the offence Page 8 of 41 Downloaded on : Fri Aug 16 20:56:32 IST 2024 NEUTRAL CITATION R/CR.A/2594/2005 JUDGMENT DATED: 22/07/2024 undefined punishable under Section 7, 11, 13(a) and 13(b) of the PC Act and the learned Trial Court has committed a serious error or law and fact in assuming the trap as a decoy trap. That the evidence of the complainant is dubious in nature and the learned Trial Court has not appreciated that the complainant has admitted that disciplinary action had to be taken against the complainant and he was transferred out of the district to Godhra and an entry was made in the service book and when the character of the complainant is highly impeachable, the learned Trial Court ought not to have relied upon the evidence of the complainant. That the complainant also has a premium of disproportionate source of income and the evidence of the complainant is highly in a cloud as he has been subjected to disciplinary action and is having assets disproportionate to his income and hence, the learned Trial Court ought to have discarded the evidence of the complainant. That the panch witness was a panch witness in an earlier trap case and well known to the complainant and the learned Trial Court ought not to have relied upon the evidence of the panch witness. That when Page 9 of 41 Downloaded on : Fri Aug 16 20:56:32 IST 2024 NEUTRAL CITATION R/CR.A/2594/2005 JUDGMENT DATED: 22/07/2024 undefined witnesses from Class-I or Class-II are available in government offices, the prosecution has taken a panch witness from the Class-III Grade and it is obvious that a man of a lowest cadre will follow the order of the mighty authority which a person from a cadre of Class-I or Class-II may not follow. That in corruption cases, the whole case depends upon the credibility of the complainant and the panch witness and if an unscrupulous complainant is supported by an unworthy panch witness, it should create a doubt in the mind of the Judge with regard to the credibility and acceptability of of the evidence of the complainant and the panch witness. That as the panch is a selectee, the Investigating Officer has also tainted his independence and credibility and the evidence of the prosecution becomes shaky and does not lend support to the evidence of the complainant. That instead of phenolphthalein powder, anthracene powder is used only with an intention of proving the charge of bribery without relying on any chemical process and it is on record that the primary panchnama was prepared in the chamber of the Trap Laying Officer Page 10 of 41 Downloaded on : Fri Aug 16 20:56:32 IST 2024 NEUTRAL CITATION R/CR.A/2594/2005 JUDGMENT DATED: 22/07/2024 undefined which shows that the Investigating Officer has clearly over- acted. There are material discrepancies in the evidence of the complainant and the complaint regarding the placing of the tainted currency notes but the same have not been considered by the learned Trial Court and hence, as the judgement and order of conviction is improper, perverse and illegal, the same is required to be quashed and set aside and the appellant is required to be acquitted for all the offences.
4. Heard learned advocate Mr. Arpit A. Kapadia for the appellant and learned APP Ms. C.M. Shah for the respondent - State. Perused the impugned judgement and order of conviction and have reappreciated the entire evidence of the prosecution on record of the case.
5. Learned Advocate Mr. Arpit A. Kapadia for the appellant has submitted that the main ingredients of initial demand, demand soon before acceptance, acceptance of bribe and recovery are not proved by the prosecution beyond reasonable doubts and the learned Trial Court has committed a serious error of law and fact in drawing the Page 11 of 41 Downloaded on : Fri Aug 16 20:56:32 IST 2024 NEUTRAL CITATION R/CR.A/2594/2005 JUDGMENT DATED: 22/07/2024 undefined presumption under Section 20 of the PC Act. The learned Trial Court has heavily relied upon the testimony of the complainant - Bhagwanbhai Govindbhai Chauhan which is predominantly uncorroborated as far as the initial demand of bribe is concerned. It is on record that disciplinary action was taken against the complainant and he was transferred out of the District to Panchmahals District and adverse remarks were made in his service book. That that the complainant was known to both the panch witnesses as also the Trap Laying Officer and hence, the credentials of the panch witness are under a cloud. That the learned Trial Court has not appreciated the entire evidence in proper perspective and there is no iota of evidence regarding the demand of illegal gratification which is a sine qua non to convict the accused and mere recovery of the tainted currency notes would not constitute the offence under the PC Act. Learned advocate has urged this Court to allow the appeal and acquit the appellant for all the offences. 5.1 Learned Advocate Mr. Arpit A. Kapadia has relied on P. Satyanarayana Murthy V. District Inspector of Police, State Page 12 of 41 Downloaded on : Fri Aug 16 20:56:32 IST 2024 NEUTRAL CITATION R/CR.A/2594/2005 JUDGMENT DATED: 22/07/2024 undefined of Andhra Pradesh & Anr. reported in (2015) 10 SCC 152, wherein, the Apex Court has observed in paras 25 and 26 as under:
"24. In our estimate, to hold on the basis of the evidence on record that the culpability of the appellant under Sections 7 and 13(1)(d)(i)&(ii) has been proved, would be an inferential deduction which is impermissible in law. Noticeably, the High Court had acquitted the appellant of the charge under Section 7 of the Act and the State had accepted the verdict and has not preferred any appeal against the same. The analysis undertaken as hereinabove qua Sections 7 and 13(1)(d)(i)&(ii) of the Act, thus, had been to underscore the indispensability of the proof of demand of illegal gratification.
25. In reiteration of the golden principle which runs through the web of administration of justice in criminal cases, this Court in Sujit Biswas vs. State of Assam (2013)12 SCC 406 had held that suspicion, however grave, cannot take the place of proof and the prosecution cannot afford to rest its case in the realm of "may be" true but has to upgrade it in the domain of "must be" true in order to steer clear of any possible surmise or conjecture. It was held, that the Court must ensure that miscarriage of justice is avoided and if in the facts and circumstances, two views are plausible, then the benefit of doubt must be given to the accused.Page 13 of 41 Downloaded on : Fri Aug 16 20:56:32 IST 2024
NEUTRAL CITATION R/CR.A/2594/2005 JUDGMENT DATED: 22/07/2024 undefined 5.2 Learned Advocate Mr. Arpit A. Kapadia has relied on Kanu Ambu Vish V. State of Maharashtra reported in (1971) 1 SCC 203, wherein, the Apex Court has observed in para 10 as under:
10......... This conclusion cannot be justified on the assumption implicit in the observation that "when the contents of such a document (the Panchnama) are proved and the evidence of Panch Harishchandra has gone counter to that document it was necessary for the learned Judge to consider in the first instance whether Harishchandra is a witness of truth or Panch Patil is a witness of truth". It may be pointed out that any statement made in the Panchnama cannot be used in evidence except for the purposes of contradicting the witness whose statement is contained in Panchnama but if it is intended to contradict him by the writing his attention must before the writing can be proved, be called to those parts of it which are to be used for contradicting him. This is what is required under Section 145 of the Evidence Act but even where a witness is confronted by his previous statement and given an opportunity to explain, that part of the statement that is put to him does not constitute substantive evidence. We think the High Court was not justified in its comment on the appreciation of the evidence of these witnesses by the learned Special Judge even though it observed that the better course would have been to seek permission to cross-examine Panch Harishchandra.Page 14 of 41 Downloaded on : Fri Aug 16 20:56:32 IST 2024
NEUTRAL CITATION R/CR.A/2594/2005 JUDGMENT DATED: 22/07/2024 undefined 5.3 Learned Advocate Mr. Arpit A. Kapadia has relied on K. Shanthamma V. State of Telangana reported in (2022) 4 SCC 574, wherein, the Apex Court has observed in paras 17 and 20 as under:
17. Thus, the version of PW1 in his examination-in-chief about the demand made by the appellant from time to time is an improvement. As stated earlier, LW8 did not enter the appellant's chamber at the time of trap. There is no other evidence of the alleged demand. Thus, the evidence of PW1 about the demand for bribe by the appellant is not at all reliable. Hence, we conclude that the demand made by the appellant has not been conclusively proved.
18..........
19..........
20. Thus, this is a case where the demand of illegal gratification by the appellant was not proved by the prosecution. Thus, the demand which is sine quo non for establishing the offence under Section 7 was not established.
5.4 Learned Advocate Mr. Arpit A. Kapadia has relied on Mukhtiar Singh (Since Deceased) through his legal representative V. State of Punjab reported in (2017) 8 SCC 136, wherein, the Apex Court has observed in para 24 as under:Page 15 of 41 Downloaded on : Fri Aug 16 20:56:32 IST 2024
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24. It would thus be patent from the materials on record that the evidence with regard to the demand of illegal gratification either of Rs.3,000/- which had been paid or of Rs.2,000/- as made on the day of trap operation is wholly inadequate to comply with the pre-requisites to constitute the ingredients of the offence with which the original accused had been charged. Not only the date or time of first demand/payment is not forthcoming and the allegation to that effect is rather omnibus, vague and sweeping, even the person in whose presence Rs.3,000/- at the first instance is alleged to have been paid i.e. Santosh Singh Lamberdar, has neither been produced in the investigation nor at the trial. In other words, the bald allegation of the complainant with regard to the demand and payment of Rs.3,000/- as well as the demand of Rs.2,000/- has remained uncorroborated. Further to reiterate, his statement to this effect lacks in material facts and particulars and per se cannot form the foundation of a decisive conclusion that such demand in fact had been made by the original accused. Viewed in this perspective, the statement of complainant and the Inspector Satpal, the shadow witness in isolation that the original accused had enquired as to whether money had been brought or not, can by no means constitute demand as enjoined in law as an ingredient of the offence levelled against the original accused. Such a stray query ipso facto in absence of any other cogent and persuasive evidence on record cannot amount to a demand to be a constituent of the offence under Section 7 or 13 of the Act.Page 16 of 41 Downloaded on : Fri Aug 16 20:56:32 IST 2024
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6. Learned APP Ms. C.M. Shah for the respondent - State has taken this Court through the entire evidence produced by the prosecution on record and has submitted that the learned Trial Court has appreciated all the evidence in proper perspective and the prosecution has proved all the ingredients of demand, acceptance and recovery and has rightly convicted the appellant. That both the complainant and the accused were working in the Police Department and the prosecution has proved that the appellant was working as a Head Clerk in the Office of Superintendent of Police and the complainant was transferred from the Prohibition and Excise Department and posted at Nabipur Police Station and the applicant had submitted two applications on 03.08.2002 and on 20.08.2002 for his services to remain in the Prohibition and Excise Department and it was the work of the appellant to process the applications and take the necessary order of the Superintendent of Police who was the ultimate authority to decide about the applications. That the prosecution has examined the complainant who has deposed about the initial demand made by the appellant Page 17 of 41 Downloaded on : Fri Aug 16 20:56:32 IST 2024 NEUTRAL CITATION R/CR.A/2594/2005 JUDGMENT DATED: 22/07/2024 undefined and even on the date of the trap, the panch witness has stated that the demand of illegal gratification of Rs. 4000/- was made and accepted by the appellant. That the learned Trial Court has appreciated all the evidence properly and has passed the impugned judgement and order of conviction and no interference is required and hence, learned APP has urged this Court to reject the appeal of the appellant.
7. The law with regard to criminal cases is settled and the prosecution has to prove the charge framed against the accused beyond reasonable doubts. The Hon'ble Apex Court in case of Ravindra Kumar Dey Vs. State of Orissa reported in AIR 1977 SC 170, has observed as under:
(i) that the onus lies affirmatively on the prosecution to prove its case beyond reasonable doubt and it cannot derive any benefit from weakness or falsity of the defence version while proving its case;
(ii) that in a criminal trial the accused must be presumed to be innocent until he is proved to be guilty; and
(iii) that the onus of the prosecution never shifts.
8. In conviction appeals, the Appellate Court has to dissect the evidence and come to a conclusion as to whether Page 18 of 41 Downloaded on : Fri Aug 16 20:56:32 IST 2024 NEUTRAL CITATION R/CR.A/2594/2005 JUDGMENT DATED: 22/07/2024 undefined the learned Trial Court has appreciated all the evidence in proper perspective and whether the prosecution has proved the charge beyond reasonable doubts keeping in mind the settled cardinal principles in light of the decision in case of Ravindra Kumar Dey (Supra).
9. To bring home the charge against the accused, the prosecution has examined PW1 - Bhagwanbhai Govindbhai Chauhan at Exh. 29 and the witness has stated that on 05.07.2002, he was working as a Police Constable in the Prohibition Police Station, Bharuch and on 16.07.2002, he was promoted to the post of a Head Constable and posted at Nabipur Police Station. That he had submitted a letter on 03.08.2002 requesting to keep his services continued with the Prohibition Police Station and three to four days after the letter was sent, he met the accused at the Panch Batti Area when he was standing outside of the Prohibition Police Station. That the accused demanded an amount of Rs. 4000/- from him and stated that if he wanted to be continued in the Prohibition Police Station, he would have to pay him the amount of Rs. 4000/- as illegal gratification. Page 19 of 41 Downloaded on : Fri Aug 16 20:56:32 IST 2024
NEUTRAL CITATION R/CR.A/2594/2005 JUDGMENT DATED: 22/07/2024 undefined That he did not go to meet the accused but sent another report dated 20.08.2002 to the Superintendent of Police and two to three days after the report was sent, the accused met him outside the Prohibition Police Station that told him that the report was received but he would have to pay the amount of illegal gratification and would allow his order to be passed only if the amount was given. That once again on 11.09.2002, the demand was reiterated and the accused told him to come and give the amount of Rs. 4000/- between 07.00 and 08.00 pm at his house on the next day. That on 12.09.2002, he went to the ACB Police Station, Bharuch and filed the complaint which is produced at Exh.
30. The witness has stated that he had given eight currency notes of the denomination of Rs. 500/- to the Police Inspector - Koralwala, and Pravinchandra Manilal Nizama and Anilbhai Thakorlal Shah were called as panch witnesses and were introduced to the complainant. That Khengabhai Surjibhai took the powder from the cupboard and the characteristics of powder and ultraviolet lamp were explained to them and Khengabhai Surjibhai applied the Page 20 of 41 Downloaded on : Fri Aug 16 20:56:32 IST 2024 NEUTRAL CITATION R/CR.A/2594/2005 JUDGMENT DATED: 22/07/2024 undefined powder on the currency notes and Koralwala gave the currency notes to him in his right hand and he placed them in his left shirt pocket. That the panch no. 1 was asked to remain with him and they went in the government vehicle to the house of the accused. That the complainant and the panch no. 1 went into the house of the accused and he had a conversation with the accused and sat on a chair in front of accused and the panch witness sat on the other chair. That the accused demanded the amount of Rs. 4000/- and he took the money from his left shirt pocket and while he was seated, he gave the money to the accused with his right hand and the accused accepted it with his right hand and counted the notes with both his hands and kept the notes in his right hand. That he went out to give the predetermined signal and immediately returned and sat on the chair and Police Inspector - Koralwala, the panch no. 2 and members of the raiding party came and caught the accused. That the currency notes were recovered from the right hand of the accused and the test of ultraviolet lamp was done by Singhabhai and traces of anthracene powder Page 21 of 41 Downloaded on : Fri Aug 16 20:56:32 IST 2024 NEUTRAL CITATION R/CR.A/2594/2005 JUDGMENT DATED: 22/07/2024 undefined were found on the tips of the fingers of both hands of the accused and on the tips of the thumbs of both hands and on the palms of the accused. That no traces of anthracene powder were found on the clothes of the accused. That the panchnama and seizure memo were drawn and the muddamaal Rs. 4000/- were placed in a Khakhi Envelope and seized. During the cross-examination by the learned advocate for the accused, the witness has stated that if disciplinary action is taken against them, they are transferred out of the district and at that time, he was transferred to Panchmahals District. That the transfer out of the district is done from Gandhinagar and an adverse remark is noted in the service book. That there is an adverse remark in his service book which is lying with the Prohibition Department. That the orders of transfers and promotions are passed by the District Superintendent of Police and any papers concerning transfer and promotion first is placed at the table of the Head Clerk, the Superintendent, the Dy.S.P. and at last it goes to the table of the District Superintendent of Police. That the Head Clerk Page 22 of 41 Downloaded on : Fri Aug 16 20:56:32 IST 2024 NEUTRAL CITATION R/CR.A/2594/2005 JUDGMENT DATED: 22/07/2024 undefined has to merely make an endorsement as to who are due for transfer and due for promotion. That if a person is promoted within a year, he is transferred and a person posted in the Prohibition Department has to do only the work of prohibition and the Prohibition Department has the powers of PASA. That a reminder was sent for his transfer from Prohibition Police Station on 02.08.2002 and his order was passed on 11.09.2002. That he was not released from the Prohibition Police Station till 10.09.2002. That he did not complain to his Superior Officers about the demand of illegal gratification of Rs. 4000/- being made by the accused and he does not remember when was the first time, the demand of Rs. 4000/- was made. The witness has stated that the demand of Rs. 4000/- was first made while he was standing outside of the Prohibition Police Station on the road. That he knows both the panch witnesses and the primary panchnama was written by the Police Inspector and after the panchnama was written, the panch witnesses and the Police Inspector affixed their signatures and they left in the jeep. That the panch no. 1 had recovered the Page 23 of 41 Downloaded on : Fri Aug 16 20:56:32 IST 2024 NEUTRAL CITATION R/CR.A/2594/2005 JUDGMENT DATED: 22/07/2024 undefined muddamaal currency notes from the hands of the accused as per the instructions of Police Inspector - Koralwala and immediately the police party came into the house and the accused was introduced and the instructions were given to the panch no. 1 to take the currency notes. That when he gave the accused the amount of illegal gratification, the accused did not give him a copy of the order and no order was seized in his presence. That prior to his posting in the Prohibition Department, he was working in A Division Police Station, Bharuch and Police Inspector - Koralwala was working in the Passport Branch of DSP Office. That while he was working in the Police Department at Bharuch, Police Inspector - Koralwala was his Superior Officer and most of his service is at Bharuch District.
9.1 The prosecution has examined PW2 - Pravinchandra Manilal Nizama at Exh. 35 and the witness is the panch witness who has stated on 12.09.2002, he had gone to the ACB Police Station along with other panch witness - Anilbhai Thakorlal Shah. That the panch witnesses were introduced to the complainant and the characteristics of Page 24 of 41 Downloaded on : Fri Aug 16 20:56:32 IST 2024 NEUTRAL CITATION R/CR.A/2594/2005 JUDGMENT DATED: 22/07/2024 undefined anthracene powder and ultraviolet lamp were explained to them and the demonstration of anthracene powder and ultraviolet lamp was done in their presence. That the complainant gave eight currency notes of the denomination of Rs. 500/- each and the currency notes were smeared with anthracene powder and placed in the left shirt pocket of the complainant by Police Inspector - Koralwala. That necessary instructions were given and the panchnama part- I was drawn and they all had affixed their signatures. That as instructed he had gone along with the complainant to the house of the accused and the complainant first went into the house of the accused and he had followed and at that time, the accused was seated on a chair on the northern wall. That the complainant and the accused had a conversation and the accused demanded for the amount of Rs. 4000/-. That the accused asked the complainant aboutthe identity of the panch witness and the complainant stated that he was his cousin who had come from the village and the complainant took the tainted currency notes from his left shirt pocket and gave it to the accused who accepted Page 25 of 41 Downloaded on : Fri Aug 16 20:56:32 IST 2024 NEUTRAL CITATION R/CR.A/2594/2005 JUDGMENT DATED: 22/07/2024 undefined it with his right hand. That the complainant gave the predetermined signal and the members of the raiding party came and they introduced themselves to the accused. That the currency notes were seen by Police Inspector - Koralwala and his staff in the ultraviolet lamp and fingerprints were found on the currency notes. That the currency notes were seized and the procedure was concluded. During the cross-examination by the learned advocate for the accused, the witness has stated that he was earlier called to the ACB Office and at that time, Police Inspector - Koralwala was present. That the currency notes were produced by Police Inspector - Koralwala and they had not noted the numbers of the currency notes but as the currency notes were in the hand of Police Inspector - Koralwala, they had believed that the currency notes were of that numbers. That there is no facility to wash hands in the cabin of Police Inspector - Koralwala and the currency notes were placed in the pocket of the complainant by the panch no. 2. That when they went into the house of the accused, the accused was seated on a chair which was near the Page 26 of 41 Downloaded on : Fri Aug 16 20:56:32 IST 2024 NEUTRAL CITATION R/CR.A/2594/2005 JUDGMENT DATED: 22/07/2024 undefined northern wall and there were two chairs to the southern side with a teapoy between them and they sat on those empty chairs. That the amount was in the hands of the accused and it was taken by some staff of the ACB. That immediately, after the amount was recovered from the accused, they were taken to the ACB Office and the other administrative procedure was done at the ACB Office. That their signatures were taken on the 16th. 9.2 The prosecution has examined PW3 - Amarsinh Vestabhai Vasava at Exh. 40 and the witness is the Superintendent of Police who had passed the order on the application of the complainant which is produced at Exh.
41. The witness has stated that on 11.09.2002, the accused had himself brought the file and no endorsement was made on the file by the accused and he had thereafter, passed the order in his own handwriting and the document is produced at Exh. 41. During the cross-examination, the witness has stated that he is the final authority for transfers and promotions and the accused was a Senior Clerk and there is an Office Superintendent above the accused and thereafter, Page 27 of 41 Downloaded on : Fri Aug 16 20:56:32 IST 2024 NEUTRAL CITATION R/CR.A/2594/2005 JUDGMENT DATED: 22/07/2024 undefined the Dy.S.P (HQ) and he was the final authority. That the accused merely had to prepare the data for the promotions and transfers and the data would pass through three places before the final order was passed. That the first application of the accused had proceeded as per the procedure and was rejected and he had seen the order of rejection before passing the final order. That if a Constable or a Head Constable is transferred out of the District, it is a punishment and the complainant - Bhagwanbhai was transferred out of the District. That the predecessor - District Superintendent of Police had passed an order for the complainant to immediately resume at his place of promotion and transfer.
9.3 The prosecution has examined PW4 - Nareshchandra Bhikhabhai Koralwala at Exh. 42 and the witness is the Trap Laying Officer who has fully supported the case of the prosecution and has narrated all the events that had taken place on 12.09.2002, when the complainant - Bhagwanbhai Govindbhai Chauhan came to the ACB Police Station and the panch witnesses were called and the demonstration of Page 28 of 41 Downloaded on : Fri Aug 16 20:56:32 IST 2024 NEUTRAL CITATION R/CR.A/2594/2005 JUDGMENT DATED: 22/07/2024 undefined anthracene powder and ultraviolet lamp was done and thereafter the amount of Rs. 4000/- was given by the complainant which were smeared with anthracene powder and placed in the shirt pocket of the complainant and the trap was arranged. The witness has stated that at that time of the trap, necessary instructions were given to all concerned and after the predetermined signal was given by the complainant, he immediately rushed into the house of the accused along with the other members of the raiding party and at that time, the accused and the complainant were sitting on the chairs. That the panch no. 1 was instructed to take the currency notes from the hands of the accused and Assistant Sub-Inspector - Singhabhai was instructed to conduct the ultraviolet lamp test and the room was darkened and the ultraviolet lamp was done and the currency notes were found with traces of anthracene powder and seized. That both the hands of the accused were also found with light blue shinning light and traces of anthracene powder and the seizure memo produced at Exh. 38 was prepared. That the panchnama produced at Exh. 37 Page 29 of 41 Downloaded on : Fri Aug 16 20:56:32 IST 2024 NEUTRAL CITATION R/CR.A/2594/2005 JUDGMENT DATED: 22/07/2024 undefined was also prepared. During the cross-examination by the learned advocate for the accused, the witness has stated that the Investigating Officer - Mr. R.D. Marathe was a member of the raiding party and was with the raiding party from the beginning till the end. That the department had received a circular to use phenolphthalein powder instead of anthracene powder and he did not record the statement of the complainant. That the complaint was written before the panch witnesses had arrived and in the vehicle, the panch witnesses were sitting near the driver, and the complainant and the members of the raiding party sat behind. That he had not seen the house of the accused before the trap and the panch witnesses or the driver also had not seen the house of the accused.
9.4 The prosecution has examined PW5 - Rajdhar Dolatrao Marathe at Exh. 44 and the witness is the Investigating Officer who had taken over the investigation of Bharuch ACB Police Station C.R. No. 8/2002 from Police Inspector - Mr. Koralwala. The witness has stated that he had arrested the accused and prepared the arrest panchnama which is Page 30 of 41 Downloaded on : Fri Aug 16 20:56:32 IST 2024 NEUTRAL CITATION R/CR.A/2594/2005 JUDGMENT DATED: 22/07/2024 undefined produced at Exh. 45. That he had received the copies of service record of the accused and also the order of sanction for prosecution which is produced at Exh. 46. During the cross-examination by the learned advocate for the accused, the witness has stated that he was a member of the raiding party and was also present when the complainant came to the ACB Office to file the complaint. That he and Police Inspector - Koralwala are officers of the same level and he has not recorded the statement of the Trap Laying Officer - Police Inspector - Koralwala. That he had sent a proposed draft sanction and a draft charge-sheet along with the papers for the order of sanction for prosecution.
10. After the evidence of the prosecution was closed, the further statement of the accused under Section 313 of Code of Criminal Procedure was recorded, wherein, the accused denied all the evidence of the prosecution and refused to step into the witness-box or examine witnesses on his behalf and has stated that he did not have any power to transfer or promote any Constable or Head Constable and he merely had to make endorsements from the record. That Page 31 of 41 Downloaded on : Fri Aug 16 20:56:32 IST 2024 NEUTRAL CITATION R/CR.A/2594/2005 JUDGMENT DATED: 22/07/2024 undefined the power to transfer or promote any Constable or Head Constable is with the Competent Authority i.e. the DSP and he has not demanded for any amount of illegal gratification for the promotion or transfer and was not involved in the order of promotion or transfer. That the complainant was transferred out of the district for disciplinary purposes and had thereafter, come back to Bharuch and had a doubt that he was involved. That no currency notes were recovered from his possession.
11. On minute dissection and reappreciation of the entire evidence of the prosecution, the infirmities in the case of the prosecution have come on record and as far as the demand aspect is concerned, in the complaint produced at Exh. 30, the complainant has stated that he had sent the report of 03.08.2002 and thereafter, had met the accused ten days after the report was sent outside of the Bharuch Prohibition Police Station and at that time, the accused had merely told him to come and meet him in the office. That he did not meet the accused and sent the second report on 20.08.2002. That once again, he met the accused three to Page 32 of 41 Downloaded on : Fri Aug 16 20:56:32 IST 2024 NEUTRAL CITATION R/CR.A/2594/2005 JUDGMENT DATED: 22/07/2024 undefined four days after the second report was sent and at that time, the accused merely told him to meet him. That he went to the house of the accused where the demand of Rs. 4000/- was made. That once again the demand was made on 11.09.2002 when he was standing outside of the Prohibition Police Station. In the evidence of the complainant recorded at Exh. 29, the witness has stated that three to four days after the application of 03.08.2002 was sent, he met the accused outside of the Prohibition Police Station in the Panch Batti Area where the demand of Rs. 4000/- was made and there is a contradiction in the place where the prior demand was made. The complainant has stated that he had given eight currency notes of the denomination of Rs. 500/- which were smeared with anthracene powder and the currency notes were given to him by Police Inspector - Koralwala in his right hand and he had placed the currency notes in his left shirt pocket. There is no mention as to whether the hands were washed thereafter and the panch witness examined at Exh. 35 has stated that Police Inspector - Koralwala had placed the currency notes which Page 33 of 41 Downloaded on : Fri Aug 16 20:56:32 IST 2024 NEUTRAL CITATION R/CR.A/2594/2005 JUDGMENT DATED: 22/07/2024 undefined were smeared with anthracene powder in the left shirt pocket of the complainant. There is no mentioned as to whether the hands were washed or not and in the panchnama produced at Exh. 37, it is mentioned that as per the instructions of Police Inspector - Koralwala, Singhabhai folded the tainted currency notes and placed it in the left shirt pocket of the complainant hence, there is a major contradiction in the placing of the tainted currency notes in the pocket of the complainant.
11.1 In the entire evidence of the prosecution, it has come on record that both the panch witnesses and the Trap Laying Officer were known to the complainant and the panch witness - PW2 - Pravinchandra Manilal Nizama examined at Exh. 35 was also a panch witness in an earlier trap case by the same Trap Laying Officer - Mr. Koralwala. This casts a huge doubt on the credibility of the panch witness and it cannot be said that the panch witnesses were independent panch witnesses. The Trap Laying Officer has also not inquired as to whether the panch witnesses were earlier panch witnesses in other trap cases and there is no Page 34 of 41 Downloaded on : Fri Aug 16 20:56:32 IST 2024 NEUTRAL CITATION R/CR.A/2594/2005 JUDGMENT DATED: 22/07/2024 undefined explanation as to why the panch witnesses who were Class- III employees were selected when Class-I or Class-II employees were also available.
11.2 From the deposition of PW3 - Amarsinh Vestabhai Vasava at Exh. 40, it has come on record that the accused was merely a Senior Clerk and had no authority to transfer or promote any Constable or Head Constable and his work was merely to put the information regarding the transfer or promotion of the employees before the Superior Officer. That the District Superintendent of Police was the final authority and after the endorsements were made by the accused, the file would go to the Office Superintendent, the Deputy Superintendent of Police and would thereafter, come to the table of the Competent Authority - the District Superintendent of Police. That even in the document produced at Exh. 41, it appears that the accused did not make any endorsement, positive or negative, regarding the transfer of the complainant and PW3 - Amarsinh Vestabhai Vasava who was the District Superintendent of Police had himself made the note on the application and the Page 35 of 41 Downloaded on : Fri Aug 16 20:56:32 IST 2024 NEUTRAL CITATION R/CR.A/2594/2005 JUDGMENT DATED: 22/07/2024 undefined endorsement is dated 11.09.2002. Hence, there was no reason for the accused to demand for the amount of illegal gratification.
11.3 In the entire evidence, it has also come on record that the complainant who was working as a Constable in the Prohibition and Excise Department in the Prohibition Police Station at Bharuch was promoted, transferred and posted at Nabipur Police Station but for reasons best known to him, did not want to go to the Nabipur Police Station and wanted to continue in the Prohibition Police Station. That earlier disciplinary action was taken against the complainant and as a punishment, he was transferred to Panchmahals District and was thereafter, transferred back to the Prohibition Police Station and when there is evidence that the panch witnesses and the Trap Laying Officer were known to the complainant, a shadow of doubt is cast on the credibility of the complainant also.
11.4 The panch witness has stated that the procedure of the panchnama was done at the ACB Police Station and the trap was arranged on 12.09.2002 but they had affixed their Page 36 of 41 Downloaded on : Fri Aug 16 20:56:32 IST 2024 NEUTRAL CITATION R/CR.A/2594/2005 JUDGMENT DATED: 22/07/2024 undefined signatures on 16.09.2002. That no tests of ultraviolet lamp was done at the place of trap and the panch witness has stated that immediately after the recovery of the currency notes, they had gone directly gone to the ACB Office where all the administrative procedure was done and their signatures were affixed on 16.09.2002.
12. On minute dissection of the entire evidence of the prosecution, there is no cogent and convincing evidence regarding the prior demand and as the complainant is himself a Police Constable and his credibility is doubtful, the initial demand is not proved beyond reasonable doubts. There is a major contradiction in the place of initial demand and also the time when the initial demand was made and it cannot be said that the demand has been proved beyond reasonable doubts. Moreover, as far as the demand on the date of the trap is concerned, when the panch witness was known to the complainant who was also a Police Constable in the Prohibition Department and there is a doubt on the credibility of the complainant and the panch witness, it cannot be said that the demand at the time of the trap is Page 37 of 41 Downloaded on : Fri Aug 16 20:56:32 IST 2024 NEUTRAL CITATION R/CR.A/2594/2005 JUDGMENT DATED: 22/07/2024 undefined proved beyond reasonable doubts. There is no iota of evidence that the accused had any authority to stay the transfer of the complainant and allow him to be continued in the Prohibition Department at Bharuch and it appears that there was no reason for the accused to demand for the amount of illegal gratification. That even though, there is evidence that the tainted currency notes were recovered from the accused, in the absence of clear, cogent and convincing evidence regarding demand, the presumption under Section 20 of the PC Act would not be available to the prosecution as the demand has not been proved beyond reasonable doubts. That the evidence, even after the recovery is not convincing and the Trap Laying Officer states that the test of ultraviolet lamp was done at the place of the trap, whereas, the panch witness states that immediately they were taken to the ACB Police Station where the other administrative procedure was done. The recovery is also doubtful as the complainant and the Trap Laying Officer state that panch no. 1 was directed to take the tainted currency notes from the hands of the accused, whereas, the Page 38 of 41 Downloaded on : Fri Aug 16 20:56:32 IST 2024 NEUTRAL CITATION R/CR.A/2594/2005 JUDGMENT DATED: 22/07/2024 undefined panch no. 1 states that a staff of the ACB Police Station had taken the tainted currency notes from the hands of the accused and he did not recover the tainted currency notes from the hands of the accused.
13. If the evidence produced by the prosecution on record of the case is examined in light of the law laid down by the Constitution Bench in Neeraj Dutta (supra), it emerges that in cases under the PC Act, the prosecution has to prove the demand, acceptance and recovery beyond reasonable doubt and without proof of demand of illegal gratification by a public servant which is the sine qua non in order to establish the guilt of the accused under Section 7 and Section 13(1)(d) of the PC Act, the accused cannot be convicted. The prosecution has to first prove the demand of illegal gratification and subsequently the acceptance, in order to bring home the charge against the accused. In the instant case, the prior demand or the demand at the time of trap, has not been proved by the prosecution beyond reasonable doubts. The factum of demand has not been proved by the prosecution beyond reasonable doubts and Page 39 of 41 Downloaded on : Fri Aug 16 20:56:32 IST 2024 NEUTRAL CITATION R/CR.A/2594/2005 JUDGMENT DATED: 22/07/2024 undefined there is no iota of evidence that even at the time of the trap, the accused had demanded for any amount of illegal gratification from the complainant.
14. In view of the above discussions, as the prosecution has failed to bring home the charge against the accused and has miserably failed to prove the demand beyond reasonable doubts, in the considered opinion of this Court, the conviction of the appellant under the PC Act could not have been invoked. That there is no reliable evidence to support the conviction of the appellant and the learned Trial Court has failed to appreciate the evidence of the prosecution in proper perspective and has come to a wrong conclusion and had convicted the appellant. That the entire evidence is contradictory and far from convincing and requires interference and consequently, the appeal succeeds.
15. The impugned judgement and order of conviction passed by the learned Special Judge (ACB), Fast Track Court No. 3, Bharuch (hereinafter referred to as "the learned Trial Court") in Special ACB Case No. 2/2003 on Page 40 of 41 Downloaded on : Fri Aug 16 20:56:32 IST 2024 NEUTRAL CITATION R/CR.A/2594/2005 JUDGMENT DATED: 22/07/2024 undefined 16.12.2005 is hereby quashed and set aside and the appellant is acquitted from all the charges levelled against him.
16. Bail bond stands cancelled. Fine to be refunded to the appellant after due verification. Record and Proceedings be sent back to the Trial Court forthwith.
(S. V. PINTO,J) Vasim Page 41 of 41 Downloaded on : Fri Aug 16 20:56:32 IST 2024