Gujarat High Court
Dilipsinh vs State on 15 June, 2011
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
Gujarat High Court Case Information System
Print
CR.A/688/1998 21/ 21 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 688 of 1998
For
Approval and Signature:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
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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, 1950 or any order
made thereunder ?
5.
Whether
it is to be circulated to the civil judge ?
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DILIPSINH
UMEDSINH JADEJA - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
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Appearance :
MR
KB ANANDJIWALA for Appellant(s) : 1,
MR RC KODEKAR ADDITIONAL
PUBLIC PROSECUTOR for Opponent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 15/06/2011
CAV
JUDGMENT
1. The appellant was convicted by the learned Special Judge of Jamnagar by judgment and order passed in Special Case No.5 of 1997 dated 27.7.1998 for the offence punishable under Section 7 of the Prevention of Corruption Act and sentenced to suffer R.I. for one year and fine of Rs.500/-, in default of payment which to undergo S.I. for further three months. The appellant was also convicted for the offence punishable under Section 13(1) (d) of Prevention of Corruption Act and was sentenced to suffer R.I. for three years and a fine of Rs.500/-, in default, to undergo S.I. for further three months. All the sentences shall run concurrently. The order, which is impugned in this present Appeal.
2. Prosecution version is in brief that the complainant received some information that some local police constables were accepting and also asking for bribe by way of illegal gratification at Subhash Market, Jamnagar, from the drivers of the tempos and trucks, under the pretext of entry fee and they were demanding Rs.20/- by way of bribe from the driver. Therefore, the complainant being Police Inspector, ACB, to ascertain the truth and genuineness about this information, decided to lay a trap. The complainant arranged to call two panchas, Government servants and the complainant contacted the Fisheries Department for providing two persons as panchas and thereafter, two officers from Fisheries Department came to the ACB Office, Rajkot. After giving a fair idea to the panchas, the complainant and two panchass along with other members of the ACB team reached at Hapa Patia. The complainant and other members of raiding party stopped one truck bearing No.GJ-10U-6565. The driver of the said truck named Ranchhodbhai Arjanbhai Chopda was explained about the trap and in turn said driver Ranchhodbhai agreed to play the role of decoy witness and he was handed over two currency notes of the denomination of Rs.10/- each. They were explained as to how anthracene powder was applied on the currency notes and they were also explained as to how the anthracene powder is used in detecting as to whether the bribe has been accepted by the public servant or not. The panch witness No.1 sat in the truck along with decoy witness and proceeded to Subhash Market and other members of raiding party followed them by jeep. At about 6:40 morning hours, the accused, Police Constable, came near the truck and demanded Rs.20/- from the driver of the truck and the driver gave Rs.20/-, smeared with anthracene powder, to the accused. No sooner the accused accepted Rs.20/- towards illegal gratification and put the said currency notes in the pocket of his jacket, the complainant and other members of raiding party rushed at that particular spot and cornered the accused. Thereafter, the currency notes were taken out from pocket of jacket, which the accused put on at that time. Necessary panchnama was drawn and other required formalities were completed. On the strength of this complaint, an offence against the accused under the Act, was registered at Jamnagar ACB Office. The investigating Officer took over the investigation. Necessary statements of the witnesses were recorded. On 31.12.1996, sanction to prosecute the accused was prayed for and the District Superintendent of Police, Jamnagar accorded sanction on 27.12.1997 to prosecute the accused for the offence punishable under Sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act.
3. After investigation, the Investigating Agency submitted the charge-sheet. During the trial, prosecution examined the witnesses and got exhibited large number of documents. The witnesses examined by the prosecution viz. PW-1, Neelkanthbhai Bhaishanker Pandya, Panch witness, Exhibit 8, PW-2, Sahdevsingh Donubhai Zala, Exhibit 10, PW-3, Ranchhodbhia Arjanbhai Chopda at Exhibit 16, the truck driver and decoy witness, P.W.4 - Mahendrarai Jayashanker Dave, complainant, Exhibit 17, P.W.5 - Ajaykumar Tomar Exhibit 20, the sanctioning Authority and P.W. 6 - Bhikhubha Balubha Jadeja, Exhibit 29, Investing Officer. Thereafter, the documentary evidence viz. list of Muddamal at Exhibit 37, panchnama at Exhibit 9, Copy of list in the town book at Exhibit 14, FIR at Exhibit 19, Seizure memo at Exhibit 19, sanction letter at Exhibit 22, Office orders at Exhibit 24 to 26, letters at Exhibit 27 and 28, Copy of the order at Exhibit 32. During recording of the further statement under Section 313 of Code Criminal Procedure, the accused stated that he had no knowledge about case and denied demand of the amount.
4. The trial court on appreciation of the evidence, came to the conclusion that the prosecution has been able to prove its case beyond all reasonable doubts. While doing so it considered the defence version and rejected the same. Accordingly the appellant was convicted and sentenced as above by the Special Court
5. Learned advocate Mr. K.B. Anandjiwala appearing on behalf of the appellant submitted that the impugned judgment and order is bad in law and against the evidence on record. He submitted that the prosecution has not proved the factum of demand and in the same way, the factum of acceptance of bribe amount. He drew attention of this Court to Section 13 (1) (d) of the Prevention of Corruption Act and submitted that a plain reading of the said Section presupposes that the accused has, through either corrupt or illegal means or by abuse of his position as a public servant, obtained for himself or someone else something valuable or gained pecuniary advantage. For this purpose, it would be insufficient for the prosecution to merely establish that a certain consideration was asked for and that it was received by him. He further submitted that it is only when there is a nexus with corruption, illegality or misuse of position which is a matter of fact and which must be conclusively established in addition to the receipt that an offence has been made out. He submitted that Section 7 of the Act prohibits the receipt, either directly or indirectly, of any gratification, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show in the exercise of official function in favour or disfavour to any person or for rendering or attempting to render any service or deserve to any person with the Central or any State Government or Parliament or the Legislature of any State or with any local Authority. He further submitted that what is prescribed by this Section is the receipt by a public servant of illegal gratification which is so defined because of the fact that it becomes tainted by virtue of the consideration that have accompanied its receipt. He also submitted that the proof of mere receipt cannot give rise to the irresistible conclusion that was for a corrupt or illegal motive. Therefore, he submitted that considering the legal situation, it cannot be said that the accused demanded a bribe and in turn acceptance of it falling within the purview of Section 7 and Section 13(1) (d) of the Prevention of Corruption Act.
6. Learned advocate Mr. Anandjiwala submitted that the prosecution has in all examined 6 witnesses to bring home the guilt of the accused and for the purpose of proving the factum of demand and acceptance, the prosecution heavily relied upon the evidence of panch witness P.W.1 at Exhibit 8 and the complainant P.W.4 at Exhibit 17. The panch witness in no uncertain terms stated in his evidence that the accused came near the truck and told the driver of the truck i.e. decoy witness P.W.3 Exhibit 16, who had not supported the case of the prosecution about specific words that "give me Rs.20/-"
and on saying so P.W.3 the decoy witness gave Rs.20/- to the accused without uttering a single word. Even for a moment, the case of prosecution is believed with regard to demand on the part of the accused, then the presumption under Section 20 would come into the way. Therefore, the prosecution evidence alone cannot be considered for the purpose of coming to the conclusion as to whether the accused accepted the amount or not. He further submitted that in the present case, the learned Special Judge without taking into consideration the infirmities, contradictions and other lacuna on the aspect of demand and acceptance, straightway recourse of Section 20 of the Act i.e. presumption has been taken which is not otherwise also permissible under the law. In corruption cases, the most important witness is the panch witness.
7. Learned advocate Mr. Anandjiwala submitted that this is a case of decoy trap. He also read the oral evidence of the trapping officer, P.W.4 Exhibit 17 and submitted that he was serving as a Police Inspector, ACB Office at Rajkot and from his own oral evidence, it appears that he received confidential information on 9.12.1996 that the traffic police and Jamnagar Police demanded the bribe money from the truck drivers under the pretext of entry fee, who were coming at Subhash Market, Jamnagar, for unloading the vegetables. Thereafter, two panchas were called from the Fisheries Department. Thereafter, the Trapping Officer along with raiding party reached at Hapa Patiya and they prevented one vehicle - truck bearing No.GJ1-10U- 6565, which was loaded with fruits. The driver of the said truck namely Ranchhodbhai was explained about the trap and he was ready to become decoy witness. Learned advocate further submitted that there is already an office of Anti Corruption Bureau at Jamnagar and there is also Police Inspector at Jamnagar and then how ACB Office Rajkot is empowered to lay the trap at Subhash Market, Jamanagar. The Trapping Officer at Rajkot has no authority to call witness, who were serving at Rajkot Office, in the trap, which was carried out at Jamnaagar. Said area of Jamnagar is not covered within the Rajkot jurisdiction. Therefore, the conduct of the Trapping Officer, Rajkot i.e. P.W.4 here in this case, creates doubt.
8. Against the submission regarding jurisdiction of the ACB Officer, learned APP Mr. Kodekar submitted that Section 43 and Section 156(2) of the Code of Criminal Procedure is required to be considered here at this stage. Section 43 as well as Section 156(2) are quoted as follow :
"SECTION 43 : Arrest by private person and procedure on such arrest:
(1) Any private person may arrest or cause to be arrested any person who in his presence commits a non-bailable and cognizable offence, or any proclaimed offender, and, without unnecessary delay, shall make over or cause to be made over any person so arrested to a police officer, or, in the absence of a police officer, take such person or cause him to be taken in custody to the nearest police station.
(2) If there is reason to believe that such person comes under the provisions of Section 41, a police officer shall rearrest him.
(3) If there is reason to believe that he has committed a non-cognizable offence and he refused on the demand of a police officer to give his name and residence, or gives a name or residence which such officer has reason to believe to be false, he shall be dealt with under the provisions of Section 42; but if there is no sufficient reason to believe that he has committed any offence, he shall be at once released.
Section 156(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate."
9. Learned advocate Mr. Anandjiwala submitted that the P.W.1 Nilkanthray Bhaishanker Pandya at Exhibit 8, who is selected witness and his evidence cannot be considered as trustworthy, reliable and acceptable. He further submitted that the said witness has been called twice by the ACB office. There are certain other Government offices but the Trapping Officer has chosen this particular witness P.W.1 intentionally. For which, learned advocate relied upon the decision of this Court in the case of Bharatkumar Jaimanishanker Mehta reported in 1982(2) GLH 249 (Head Note B). He further submitted that choosing of a person as panch is a most important aspect in corruption case. Therefore, an independent and unconnected person is required to be chosen. In this matter, when the panch is selected by the Investigating Officer, is not proper and just, his evidence cannot be considered as genuine and trustworthy. He further submitted that panchnama is not prepared as dictated by the panch and so that cannot be proved through oral evidence of the trapping officer. He has further submitted that the contents of that panchnama cannot be considered as proved document against the present appellant. Even the panchnama is not read over to the panchas and, therefore, that panchnama is not required to considered as admissible evidence as per the provisions of law. He has argued that in this matter, the prosecution has failed to prove its case beyond reasonable doubt and the explanation of the present appellant is not properly considered by the learned trial Judge, while passing the order of conviction and sentence. He has drawn the attention of this Court to the evidence of P.W.3 - Ranchhod Arjanbhai, decoy witness and submitted that there is nothing come out from his evidence, which links the accused in connection of the offence punishable under the provisions of Prevention of Corruption Act. In view of the aforesaid submissions, learned advocate Mr. Anandjiwala submitted that the judgment and order of conviction and sentence passed by the learned Judge is required to be quashed and set aside by allowing this Appeal.
10. As against that, the learned APP Mr. Kodekar submitted that the judgment and order passed by the learned Special Judge is just and proper and after appreciating the evidence, the same has been passed. He read the oral evidence of P.W.1 Nilkanthray Bhaishanker Pandya and submitted that said witness was serving in the Fisheries Department, was called by the ACB office Rajkot and explained about trap. As per instruction, the said witness and other members of raiding party including Trapping Officer reached at Subhash Market. At that time, when accused came there and demanded Rs.20/- towards illegal gratification from the decoy witness, who is truck driver Ranchhodbhai and at that time, said witness was already in the truck. Thereafter, prearranged signal was made and members of raiding party rushed there. The trap amount of Rs.20/-, each denomination of Rs.10/- were taken out from the pocket of the jacket of the accused. Thereafter, experiment of ultra violet lamp was carried out and marks of anthracene powder were found on the notes as well as on the pocket (Jacket) of the accused. Therefore, it is proved beyond reasonable doubt that the accused demanded bribe money from the decoy witness and the same was accepted by him in the presence of this panch. He further submitted that this evidence is corroborated with evidence of trapping officer, P.W. 4, (Exhibit 17), who is also complainant and after getting concrete information, he decided to lay the trap at Subhash Market of Jamnagar. This witness submitted that marks of anthracene powder were found on fingers, thumb and palm of left hand of the accused and on the edge of pocket of jacket put on by the accused. Even the decoy witness, Ranchhodbhai Arjanbhai, P.W.3 (Exhibit 16), before whom, the demand of illegal gratification was made by the accused. Learned APP further submitted that other evidence of the witnesses are corroborated with the evidence of P.W.4 and also, the contents of panchnama at Exhibit 9 is on the same line. The sanction which is given by sanctioning officer, P.W.5 at Exhibit 20, is just and proper and given with application of mind as well as after considering all the papers. Therefore, it is proved beyond reasonable doubt that the accused made demand before the decoy witness and in turn, the same was accepted after considering the evidence and the fingers, thumb, palm of the accused as well as jacket of the accused, where the marks of anthracene powder were found.
11. Learned APP Mr. Kodekar has relied upon the decision rendered in the case of Muni Lal Vs. Delhi Administration reported in 1971 SC 1525. He has also relied upon the case of Rupsinghbhai Punabhai Patel Vs. State of Gujarat reported 2007 Cr. L.J. 728. (Head Note "A") and submitted that so far as the selection of panch is concerned, in the present case, P.W.1, who was called by the Trapping Officer from the Fisheries Department, he cannot be considered as selected witness, as the witness had no relation with the office of ACB. Learned APP further submitted that the panch is an independent witness and public servant and no animosity or any grudge with the appellant is established by the defence side. He has also drawn the attention of this Court to Section 20 of the Prevention of Corruption Act. The appellant has not rebutted the evidence of the prosecution and in this case, it is clearly established that the marks of anthracene powder were found on the pocket (Jacket) of the accused and fingers, palm of left hand of the accused, therefore, it is established that the accused accepted the bribe money, which he demanded before the decoy witness. Mr. Kodekar, learned APP submitted that the judgment and order of conviction and sentence is required to be confirmed by dismissing the appeal.
12. Heard the parties and perused the record. It appears from the judgment that learned Special Judge has specifically made attempt to frame the charge in connection with the demand and acceptance. I have perused oral evidence of P.W. 4 complainant, Trapping Officer at Exhibit 17 and it appears from the evidence that the said witness received confidential information about collection of the illegal gratification by police from the truck drivers, who were coming to unload vegetables at Subhash Market, Jamnagar. Thereafter, the two panchas were called from the Fisheries Department. Thereafter, the complainant with panchas and members of raiding party, reached at Hapa Patiya, where they stopped one truck No.GJ-10U-6565, which was loaded with fruits and upon asking the name of the driver, the driver stated his name as Ranchhodbhai. The driver was explained about the trap and he was then ready to become decoy witness. After completing the formalities, the notes were put in the pocket of the decoy witness and P.W.1 took the seat in the tempo with decoy witness. The accused after some time, came to the decoy witness and asked bribe money of Rs.20/- from the decoy witness. The decoy witness took out the Rs.20/- (two notes in denomination of Rs.10/-) from his pocket and gave it to the accused by right hand. Thereafter, the decoy witness made prearranged signal to the members of raiding party and at that time, the members of raiding party rushed to the spot and cornered the accused. On being inquired, the accused stated that his name is Dilipsingh serving as Police Constable at Jamnagar 'A' Division Police Station. During the course of experiment of ultra violet lamp, the marks of anthracene powder were found on the fingers and thumb of left hand of the accused. Even on the edge of pocket of the jacket, put on by the accused, anthracene powder was found. In his cross-examination, he admitted that he had seen the accused, who took the bribe money from the decoy witness. I have also perused the evidence of P.W.1 Nilkanthray Bhaishankar Pandya at Exhibit 8, who stated that he was serving in the Fisheries Department as Officer and on 9.12.1996, he received phone call from the ACB office, Rajkot, for making arrangement of two panchas for carrying out trap. He stated that said witness was told by the ACB Officer, Mr. Dave that in the area of Subhash Market, Jamnagar, the police personnel are collecting illegal gratification from the drivers of the truck under the pretext of entry fees and thereafter, the witnesses were explained about the trap programme. The witness stated that in his presence the accused demanded Rs.20/- from the decoy witness and the accused accepted the same and put the same in his pocket of jacket. The marks of anthracene powder was found on the said pocket of the jacket, put on by the accused at that time. In his cross-examination, he admitted that previously, one trap was arranged, which was failed later on, because the accused of that case, did not come. He also admitted that he has no relation with the ACB officer or ACB office. The panchnama at Exhibit 9 states that the marks of anthracene powder were found on the fingers, thumb of the left hand of the accused. The decoy witness at Exhibit 16, P.W.3 - Ranchhod Arjnabhai stated that the accused asked for the papers of the vehicle truck and he admitted in cross-examination that the trapping officer Mr. Dave said at that time that marks of the anthracene powder were found and experiment of ultra violet lamp was carried out upon the decoy witness along with other persons. The P.W.5 Ajaykumar at Exhibit 20 stated that after considering the papers produced before him, he gave sanction to prosecute against the accused. I have also perused the evidence of P.W. 6 Bhikhubha Balubha at Exhibit 16. I have also perused the documentary evidence. The contents stated in the complaint are proved by the documentary as well as through the oral evidence. Therefore, it is established fact that the accused made demand of Rs.20/- before the decoy witness and the same was accepted by the accused. I have also perused the statement of the accused recorded under Section 313 of the Code of Criminal Procedure, wherein he denied the allegations mentioned against him, but he had not rendered proper explanation in his favour. He also stated in his statement that he asked the decoy witness about papers of the vehicle and thereafter, ACB personnel came there and took him to the police station. Therefore, it is established that he was on duty on that day and he met the driver i.e. decoy witness. Therefore, evidence of the decoy witness and other witness including trapping officer are also corroborating the contents stated in the statement recorded under Section 313 of the Code of Criminal Procedure.
13. I have perused Section 43 and 156(2) of the Code of Criminal Procedure, it is crystal clear in light of the aforesaid sections that there is no bar of any kind upon the Authority like ACB to lay the trap outside its jurisdiction. Therefore, I do not agree with the contention made by the learned advocate Mr. Anandjiwala, regarding jurisdiction of the ACB Rajkot, who cannot lay the trap at Jamnagar. As per the aforesaid Sections, the Officer of the ACB is empowered to arrange trap outside his jurisdiction.
14. Learned advocate Mr. Anandjiwala for the appellant relied upon the decision of this Court in the case of Bharatkumar Jaimanishanker Mehta reported in 1982(2) GLH 249.
I have perused the said decision, more particularly, Head Note B, Choosing of a panch in a corruption case is most important aspect. A person of undoubted integrity and reliability should be chosen as a panch. Here in present case, the panch who is selected by the ACB office, working in the Fisheries Department, who has participated also in earlier trap, which later on failed. That does not mean that the said witness is doubtful and his integrity or reliability is doubtful. The witness P.W.1 has no relation with the ACB officer or its any of the officer. Therefore, it cannot be said that the ACB officer has erred in selecting the P.W.1 as panch for carrying out trap because ACB office has no doubt about the integrity and reliability of the P.W.1. The ACB officer has taken great care while selecting the Panch as P.W.1. The fact and circumstances of the cited case so far it relates to selection of panch is quite different from the facts of the present case, and, therefore, the same is not applicable to the present case. As against that learned APP Mr. Kodekar relied upon the case of Rupsinghbhai Punabhai Patel Vs. State of Gujarat reported in 2007 CRI. L.J. 728, more particularly, Head Note A. I have perused the same and in said case also, the complainant was police official, who laid the trap in bribe case, by taking assistance of decoy witness. In the present case, the ACB officer, P.W.4 has rightly selected decoy witness and successfully carried out the trap. It is also established that in the presence of P.W.1, the accused made demand of bribe and accepted the same. Therefore, there is no error committed on the part of the ACB officer while selecting the panch.
15. In the facts of the present case, I am of the opinion that the ingredients of Sections 7 and 13 (2) of the Act are satisfied. From the evidence led on behalf of the prosecution, it is evident that the appellant demanded the money from the complainant in presence of P.W. 1 and the amount was accepted by the appellant - accused also in presence of P.W.1. The presence of anthracene powder on the fingers, palm of left hand as well as jacket which was put on by the appellant at that time, go to show that he has voluntarily accepted the bribe. Thus there is sufficient evidence of demand of illegal gratification and the voluntary acceptance thereof.
16. All the submissions made on behalf of the appellant being devoid of any substance, I do not find any merit in this appeal and it is dismissed accordingly. The judgment and order passed by the learned Special Judge, Jamnagar in Special Case No.5 of 1997 dated 27.7.1998 is hereby confirmed. Appellant is on bail and in view of dismissal of appeal, his bail bonds are cancelled and he is directed to surrender before the Jail Authority within six weeks from the date of this order to undergo his sentence, if any, failing which, the concerned Court shall issue non-bailable warrant to effect the arrest of the appellant. R & P to be sent back to the trial Court, forthwith.
(Z.K. SAIYED,J.) ynvyas Top