Gujarat High Court
Nileshkumar Narsinhbhai Patel vs The State Of ... on 14 February, 2017
Author: R.P.Dholaria
Bench: R.P.Dholaria
R/CR.A/1338/2005 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 1338 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE R.P.DHOLARIA
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?
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NILESHKUMAR NARSINHBHAI PATEL....Appellant(s)
Versus
THE STATE OF GUJARAT....Opponent(s)/Respondent(s)
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Appearance:
MR YN RAVANI, FOR MR VIVEK V BHAMARE, ADVOCATES for the
Appellant(s) No. 1
MR CHINTAN DAVE, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 14/02/2017
ORAL JUDGMENT
1. The appellant has preferred the present appeal under section 374 of the Code of Criminal Procedure, 1973 against the judgment and order of conviction dated 15.6.2005 passed by the learned Special Judge (Corruption) and Page 1 of 16 HC-NIC Page 1 of 16 Created On Sun Aug 13 15:53:56 IST 2017 R/CR.A/1338/2005 JUDGMENT Additional Sessions Judge, Fast Track Court No.7, Bharuch, in Special (ACB) Case No.9 of 2001, whereby the learned Judge has convicted the appellantaccused under Section 7 of the Prevention of Corruption Act, 1988 and sentenced him to suffer simple imprisonment for one year and to pay a fine of Rs.2000/ in default to undergo simple imprisonment for one month. The learned Judge also convicted the accused under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 and sentenced him to suffer simple imprisonment for two years and to pay a fine of Rs.2,000/ in default to undergo simple imprisonment for one month.
2. The short facts giving rise to the present appeal are that appellantNileshkumar Narsinhbhai Patel was working as Veterinary Officer in Animal Husbandry Department, District Panchayat, Bharuch at Veterinary Dispensary, Chasvad. On 5.3.2001, an information was received by Nareshchandra Koralwala Police Inspector of ACB, Bharuch that the appellant was demanding and accepting Rs.300/ to Rs.500/ from the villagers for issuance of death certificate of animal and upon that information a decoy trap was arranged and after calling panchas and usual formalities of the experiment of anthrecene powder and ultraviolet lamp in the presence of panchas. Thereafter, the appellantaccused caught red handed while accepting tainted currency notes during the course of trap. Thereafter, the seizure memo and other procedure in relation Page 2 of 16 HC-NIC Page 2 of 16 Created On Sun Aug 13 15:53:56 IST 2017 R/CR.A/1338/2005 JUDGMENT to the trap, were carried out in presence of the panchas. Hence, a complaint came to be lodged against the appellant accused for the offences punishable under Sections 7, 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988.
3. In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the chargesheet against the appellant accused. The charge was framed against the accused. The accused pleaded not guilty to the charge and claimed to be tried.
3.1 In order to bring home the guilt, the prosecution has examined three witnesses and also produced several documentary evidences.
3.2 At the end of the trial, after recording the statement of the accused under section 313 of the CrPC and hearing the arguments on behalf of the prosecution and the defence, the learned trial Court delivered the judgment and order, as stated above.
4. Being aggrieved by the same, the appellant has preferred the aforesaid Criminal Appeal before this Court.
5. By way of preferring the present appeal, the Page 3 of 16 HC-NIC Page 3 of 16 Created On Sun Aug 13 15:53:56 IST 2017 R/CR.A/1338/2005 JUDGMENT appellant has mainly contended that learned trial Court has failed to appreciate the evidence on record and wrongly recorded the order of conviction. It is further contended that learned trial Judge has not appreciated the evidence on record in its proper perspective and in fact, there was no appreciation of evidence so far and hence, the impugned judgment and order of conviction is required to be reversed, as such.
6. Mr.Y.N. Ravani, learned advocate appearing for Mr. Vivek Bhamre, learned advocate for the appellant has taken this Court through the evidence of the witnesses as well as impugned order and argued that this is a clear case, wherein the punterdecoy has turned hostile and has not at all supported the case of the prosecution and therefore, the vital ingredients regarding demand and acceptance have not been proved. He has further argued that this is a case of running trap, which was arranged on a secret information received by the PIcomplainantNareshchandra Koralwala and upon lodging the complaint, the ACB arranged a trap after obtaining the service of decoypunter, who had been examined by the prosecution and declared hostile. In his crossexamination, the decoypunter has admitted that during the trap, the appellant did not demand any amount from him for making death certificate. He has further argued that panch No.1, who was required to hear and view the incident during the trap and who accompanied the decoy has deposed that when they Page 4 of 16 HC-NIC Page 4 of 16 Created On Sun Aug 13 15:53:56 IST 2017 R/CR.A/1338/2005 JUDGMENT reached at the office of the appellantdoctor, the accused told him to sit outside the office, therefore, he went and stood near the door and thereafter, there was some conversation between them but he could not hear as to what conversation was going on between them and also did not view as to what happened during the trap. In view of the aforesaid nature of evidence on record, when demand and acceptance are not proved which are vital ingredients so far as establishing the guilt of accepting illegal gratification is concerned and in consequence whereof, recovery of tainted currency notes in the trap from the decoy becomes meaningless. He has further argued that when the decoy has not supported the case of the prosecution, then neither demand nor acceptance or recovery or seizure has been proved in accordance with the provisions of law and, therefore, the judgment rendered by the learned trial Court is based upon the assumption that the accused was present at the time of trap and collected the bribe amount. The demand and acceptance are presumed by the trial Court, which is not in accordance with the principle laid down for appreciation of the evidence and assertion of cases made by the this and Hon'ble Supreme Court as such. He has, therefore, submitted that the prosecution has miserably failed to establish vital ingredients as regards demand of illegal gratification and acceptance thereof. Lastly, the learned advocate has requested this Court to allow the present appeal.
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R/CR.A/1338/2005 JUDGMENT
7. On the otherhand, Mr.Chintan Dave, learned APP has supported the judgment rendered by learned trial Court. He has submitted that vital ingredient i.e. demand is clearly coming out from the complaint itself and at the time of raid also, the complainant delivered tainted currency notes and, therefore, demand itself is proved as the tainted currency notes were recovered from the possession of the appellantaccused. He has further submitted that test of ultraviolate lamp clearly indicates that the marks of anthracene powder were also found on the pocket as well as fingers of the appellantaccused and hence, the finding recorded by learned trial Court is in accordance with the evidence available on record which calls for no interference.
8. This Court has heard Mr.Y.N. Ravani, learned advocate appearing for Mr. Vivek Bhamre, learned advocate for the appellant and Mr.Chintan Dave, learned APP for the respondent State.
9. This Court has minutely gone through the impugned judgment rendered by learned trial Court as well as the evidence on record in the nature of paper book. As per the prosecution version, appellantNileshkumar Narsinhbhai Patel was working as Veterinary Officer in Animal Husbandry Department, District Panchayat, Bharuch at Veterinary Dispensary, Village Chasvad. On 5.3.2001, an information was Page 6 of 16 HC-NIC Page 6 of 16 Created On Sun Aug 13 15:53:56 IST 2017 R/CR.A/1338/2005 JUDGMENT received by Nareshchandra Koralwala Police Inspector of ACB, Bharuch that the appellant was demanding and accepting Rs.300/ to Rs.500/ from the villagers for issuance of death certificate of animal and upon that information a decoy trap was arranged and after calling panchas and usual formalities of the experiment of anthrance powder and ultra violet lamp in the presence of panchas, a trap was carried out. Thereafter, as the appellantaccused caught red handed while accepting tainted currency notes during the course of trap and thereby, he committed offences punishable under Sections 7, 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988.
10. P.W.No.5DecoyPunterRamsinh Kalidas Vasava who was requisitioned by the complainant to act as decoy in the trap, has deposed that he belongs to village Dhanipur and he has been engaged in animal husbandry. He has further deposed that his wife took bank loan for purchasing buffalo and the said buffalo died, therefore, he required death certificate of his buffalo and he approached the office of the appellant for the purpose of getting death certificate. He has further deposed that the appellantdoctor told him that firstly you have to bring ring which was tagged upon the ear of the buffalo, then he would issue death certificate. He has further deposed that after two days i.e. 7.3.2001, he again visited the office of the accusedappellant and met with the appellant, at Page 7 of 16 HC-NIC Page 7 of 16 Created On Sun Aug 13 15:53:56 IST 2017 R/CR.A/1338/2005 JUDGMENT that time, the appellant did not demand any amount and in the meantime, the ACB Officials entered and search has been made and in search, an amount of Rs.500/ in denomination of Rs.100/ each were found from the pocket of shirt of the accused. However, the witness turned hostile and he has not supported the case of the prosecution.
11. PW1Jyantilal PatelPanch No.1 has deposed that he was serving as clerk in the office of Mamlatdar, Bharuch and he was requisitioned by the prosecution to act as panch in the trap prior to holding the raid. He, as well as other panchas were given detailed information as to how the raid was going to be conducted and as to how the anthrence powder is to be applied and as to how the experiment of ultraviolet lamp is to be carried out. He has further deposed that he and decoy punter went inside the office of the accused where they found the accused. He has further deposed that the accused asked regarding the arrival of decoyRamsinh to which the decoy replied that his buffalo is died and he required death certificate thereafter accuseddoctor asked decoyRamsinh about the witness to which the decoy replied, "he is my friend", thereafter accused told the witness to sit outside the room. He has further deposed that he came out from the room and gave prearranged signal to other members of the raiding party and the ACB personnel came there and caught hold of the accused red handed and search of the accused was carried out and in Page 8 of 16 HC-NIC Page 8 of 16 Created On Sun Aug 13 15:53:56 IST 2017 R/CR.A/1338/2005 JUDGMENT search, an amount of Rs.500/ in denomination of Rs.100/ each were recovered from the pocket of shirt of the accused and test of the ultraviolate lamp was found positive and detailed panchnama was carried out in the presence of accused and the said tainted currency notes and other necesary papers were also seized. In crossexamiantion, the witness has admitted that as he was told to sit outside the room, therefore, he could not hear as to what conversation was going on between them and could not view as to what happened between them during the trap.
12. PW6Nareshchandra KoralwalaPolice Inspector has deposed that he was serving as Police Inspector in ACB, Bharuch. He has further deposed that when he was on duty on 5.3.2001, he has received a secret information that the Veterinary Officer of Veterinary Dispensary, village Chasvad used to collect illgal gratification for issuing of death certificate of animals and upon receving such information, he arranged a trap after requisitioning services of decoy and two panchas. He has further deposed that he gave detailed information to the panchas and decoy as to how the raid was going to be conducted and as to how the anthracene powder is to be applied and as to how the experiment of ultraviolet lamp is to be carried out. He has further deposed that during the trap an amount of Rs.500/ in denomination of Rs.100/ each were recovered from the pocket of shirt of the accused and Page 9 of 16 HC-NIC Page 9 of 16 Created On Sun Aug 13 15:53:56 IST 2017 R/CR.A/1338/2005 JUDGMENT therefore, he lodged the complaint and handed over the rest of the investigation to his colleague Mr.R.D. Marathe and Mr.R.D. Marathe has filed a chargesheet after the conclusion of investigation.
13. In the present case, this Court is required to scrutinize the evidence to ascertain whether there is proper, reliable and cogent evidence beyond reasonable doubt to confirm the judgment and sentence awarded by learned trial Court. If there is no such evidence on record, in that event, irrespective of the fact that the raid was carried out and recovery was made, the conviction cannot be sustained as the onus lies on the prosecution to prove its case beyond reasonable doubt with regard to the factum of demand and acceptance.
14. At this juncture, it would be fruitful to refer to some decisions of Hon'ble Apex Court. In the case of A. Subair vs. State of Kerala reported in (2009) 6 SCC 587, while dwelling on the purport of the statutory prescription of Sections 7 and 13(1)(d) of the Act, the Hon'ble Apex Court ruled that the prosecution has to prove the charge thereunder beyond reasonable doubt like any other criminal offence and that the accused should be considered to be innocent till it is established otherwise by proper proof of demand and acceptance of illegal gratification, which are vital ingredients Page 10 of 16 HC-NIC Page 10 of 16 Created On Sun Aug 13 15:53:56 IST 2017 R/CR.A/1338/2005 JUDGMENT necessary to be proved to record a conviction.
15. In the case of State of Kerala and another vs. C.P. Rao reported in (2011) 6 SCC 450, the Hon'ble Apex Court, reiterating its earlier dictum, visàvis the same offences, held that mere recovery by itself, would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained.
16. In a recent enunciation by the Hon'ble Supreme Court to discern the imperative prerequisites of Sections 7 and 13 of the Act, it has been underlined by the Hon'ble Apex Court in the case of B.Jayaraj vs. State of A.P. Rerpoted in AIR 2014 SC(Supp) 1837, in unequivocal terms, that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Sections 7 as well as 13(1)(d)(i)&(ii) of the Act. It has been propounded that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence under Sections 7 and 13 of the Act. Qua Section 20 Page 11 of 16 HC-NIC Page 11 of 16 Created On Sun Aug 13 15:53:56 IST 2017 R/CR.A/1338/2005 JUDGMENT of the Act, which permits a presumption as envisaged therein, it has been held that while it is extendable only to an offence under Section 7 and not to those under Section 13(1)
(d)(i)&(ii) of the Act, it is contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of illegal gratification, it was emphasized, could follow only if there was proof of demand. Axiomatically, it was held that in absence of proof of demand, such legal presumption under Section 20 of the Act would also not arise.
17. In reiteration of the golden principle which runs through the web of administration of justice in criminal cases, the Hon'ble Apex Court in the case of Sujit Biswas vs. State of Assam, reported in (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.
18. On overall analysis of the evidence of record it is clearly emerging out that the complaint was lodged by Page 12 of 16 HC-NIC Page 12 of 16 Created On Sun Aug 13 15:53:56 IST 2017 R/CR.A/1338/2005 JUDGMENT Mr.Nareshchandra KoralwalaPolice Inspector ACB, Bharuch on 7.3.2001, wherein he mentioned that he received some secrete information from his source that the appellantaccused is demanding illegal gratification from the persons who coming to Veterinary Dispensary, Village Chasvad for treatment of the animals and for issuance of death certificate. Thereafter Police InspectorNareshchandra Koralwala has arranged a trap after requisitioning the services of decoy and panchas and he himself has lodged the complaint and also carried out the crucial part of the investigation. As noted above that decoy Ramsinhbhai who was requisitioned to act as a decoy did not support the case of the prosecution but on the contrary, he has deposed that while he visited the office of the accused for getting certificate, the accused did not demand any amount from him. So far as the panch No.1Jyantilal Patel who accompanied the decoy at the time of trap is concerned, he deposed that as he was told by the accused to sit outside the room and hence, he could not hear as to what conversation was going on between them and also did not view as to what has happened during the trap. In that view of the matter, neither from the evidences of complainant nor from the evidences of decoypunter nor from the panch No.1, it is proved that the accused demanded illegal gratification from the decoypunter. In that view of the matter, main vital ingredients i.e. demand and acceptance are itself missing in the present case and so far as the recovery of tainted currency Page 13 of 16 HC-NIC Page 13 of 16 Created On Sun Aug 13 15:53:56 IST 2017 R/CR.A/1338/2005 JUDGMENT notes are concerned, the same were recovered from the possession of the accused therefore, becomes meaningless.
19. In the backdrop of the aforesaid factual position and on overall analysis of the evidence on record, the prosecution has to prove three main vital ingredients of illegal gratification, namely demand, acceptance and recovery of tainted currency notes. So far as the demand and acceptance of the illegal gratification are concerned, decoypunter has been declared hostile during the course of trial and they did not support the case of the prosecution. Even in his evidence, he has clearly and categorically accepted that the accused did not demand any amount from him. In that view of the matter, nothing reveals from the evidences of important witnesses i.e. decoypunter and pnachas.
20. In view of the aforesaid nature of evidence, when demand and acceptance are not proved which are vital ingredients so far as establishing the guilt of accepting illegal gratification is concerned and in consequence whereof, recovery of tainted currency notes which was found in the trap from the possession of the appellantaccused becomes meaningless. In this view of the matter, finding recorded by learned trial Court is not in consonance with the evidence available on record. Therefore, as stated above, in absence of any specific and clinching evidence to prove all such acts by Page 14 of 16 HC-NIC Page 14 of 16 Created On Sun Aug 13 15:53:56 IST 2017 R/CR.A/1338/2005 JUDGMENT the appellant accused, conviction recorded by learned trial Judge is not sustainable.
21. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 or 13 of the Act would not entail his conviction thereunder.
22. One another disturbing feature comes out from the Record and Proceedings of the case is regarding the fact that the Police Inspector has assumed all roles right from the stage of recording the complaint, arranging trap as well as members of raiding party, carrying out investigation till filing of the chargesheet. This course of action goes against the basic tenets of criminal jurisprudence and fair investigation. The credibility of the case of the prosecution becomes suspicious on this count only. In the facts of the present case, the status of the investigating officer could not be placed on any pedestal higher than of a complainant and the complainant himself cannot be the sole agency of investigation. There should be no occasion to suspect fair and impartial investigation. The said view is fortified by the decision of the Honourable Apex Court in the case of Bhagwan Singh vs State of Rajasthan reported in AIR 1976 SC 985, followed by this Court in the case of Kanubhai Kantibhai Patel vs State of Gujarat, reported in 1998 (1) Page 15 of 16 HC-NIC Page 15 of 16 Created On Sun Aug 13 15:53:56 IST 2017 R/CR.A/1338/2005 JUDGMENT GLH 924 as well as in the case of Gopal Lal Ghisulal Chhipa (supra). Therefore, in this case, the prosecution case suffers from the aforesaid basic infirmity which itself is sufficient to vitiate the whole investigation and accordingly the whole proceedings based on such investigation deserves to be quashed and set aside on this count only.
23. For the reasons recorded above, this appeal succeeds. The impugned judgment and order dated 15.6.2005 passed by the learned Special Judge (Corruption) and Additional Sessions Judge, Fast Track Court No.7, Bharuch, in Special (ACB) Case No.9 of 2001 is quashed and set aside. The appellant is acquitted from the charges levelled against him. Bail bond, if any, stands cancelled. Fine, if paid, be refunded to the appellant. Surety, if any shall stands discharged. R & P be sent back to the trial Court, forthwith.
(R.P.DHOLARIA,J.) ali Page 16 of 16 HC-NIC Page 16 of 16 Created On Sun Aug 13 15:53:56 IST 2017