Delhi District Court
State vs . Salim Ahmad, on 16 March, 2012
IN THE COURT OF MS. SANGITA DHINGRA SEHGAL,
SPECIAL JUDGE, ANTI CORRUPTION BRANCH, DELHI
CC No. 5/09
Unique Case ID Number 02401R0007992009
State Vs. Salim Ahmad,
S/o Sh. Nasir Ahmad,
R/o H. No. 1/2A, Gali No. 3,
Brij Puri, Khureji,
Delhi110051.
FIR No. : 08/2007
Under Section : 7 & 13 (i) (d) of Prevention of
Corruption Act, 1988.
Police Station : Anti Corruption Branch.
Date of filing of Chargesheet : 09.01.2009
Date on which Judgment was reserved : 13.02.2012
Date of Judgment : 16.03.2012
JUDGMENT
The present case was registered in Anti Corruption Branch, Delhi on the complaint Ex.PW3/A lodged by Complainant Ravi Kumar (PW3) alleging that accused Salim Ahmad, working as Patwari in the SDM Office Rampura, Delhi was demanding bribe of Rs.15,000/ from FIR No. 08/2007 State Vs. Salim Ahmad 1/36 him for forwarding the papers to the competent authority in respect of Flat No. D34, Second Lord Krishan Road, Adarsh Nagar, Delhi purchased by his friend Mohan Lal. The case of the prosecution further is that when the Complainant (PW3) expressed his inability to pay Rs.15,000/ accused asked him to make payment in installments of Rs.5,000/ each and to come to his office on 02.03.2007 with Rs. 4,000/.
2. On the basis of the complaint Ex.PW3/A a raiding team was formed and a trap was laid by the Anti Corruption Branch, Delhi on 02.03.2007 and the accused was caught red handed while demanding/ accepting Rs.4,000/ illegal gratification from the Complainant (PW3) in the presence of the Panch Witness Satinder Pal Singh (PW7).
3. In this background twofold charges were framed against accused Salim Ahmad (i) that during February / March, 2007 while working as a Patwari in SDM Office, Model Town, Rampura, Delhi and being a public servant demanded bribe of Rs.15,000/ from the Complainant (PW3) for forwarding the papers in respect of Flat No. D34, Second Lord Krishna Road, Adarsh Nagar, Delhi purchased by one Mohan Lal, friend of the Complainant (PW3) to the Competent Authority and when the Complainant (PW3) expressed his inability to pay such a large amount the accused asked him to pay the amount in installments of Rs.5,000/ each and on 02.03.2007 in Room FIR No. 08/2007 State Vs. Salim Ahmad 2/36 No. 20 of SDM Office, Model Town, Rampura, Delhi he demanded and accepted bribe of Rs.4,000/ other than legal remuneration from the Complainant (PW3) and thereby committed an offence punishable under Section 7 of the Prevention of Corruption Act, 1988; (ii) that being a public servant the accused obtained bribe of Rs.4,000/ from the said Complainant (PW3) as a pecuniary advantage for himself by corrupt or illegal means or otherwise by abusing his position as such public servant and thereby committed an offence of criminal misconduct as specified under Section 13 (i) (d) and punishable under Section 13 (2) of the Prevention of Corruption Act, 1988.
4. In order to bring home the charges prosecution examined 13 witnesses before the Statement of the accused was recorded under Section 313 of the Code of Criminal Procedure wherein he claimed to be innocent and denied the demand and acceptance of bribe, being falsely implicated as he refused to oblige Inspector K. S. Pathania and Inspector Sunil Kumar who had sought a personal favour.
5. Sh. B. S. Kain, Ld. Addl PP appeared for the State and the accused was represented by Shri R. P. Shukla, Advocate.
6. In order to prove its case the prosecution examined some formal witnesses. Sh. S. C. Vashist (PW1) deposed that Dispatch Register Ex.PW1/A, Peshi Register Ex.PW1/B, Peshi Register Ex.PW1/C FIR No. 08/2007 State Vs. Salim Ahmad 3/36 & Copy of Sale Deed Ex.PW1/D were seized vide seizure memo Ex.PW1/E by the Investigating Officer (PW11). Trilok Chand, Patwari (PW2) handed over the photocopy of roznamcha report No. 343352 Ex.PW2/B to the IO in proof of the attendance of the accused on duty. Ct. Raju (PW4) deposited the case property in FSL, Rohini, Delhi for chemical analysis. HC Surinder (PW6) deposited the case property in the Malkhana against Ex.PW6/A. Sh. Bhim Singh (PW8) placed the copy of DD No. 12 of ACB, Delhi Ex.PW8/X on record and duty roster of Panch Witness Ex.PW8/X1. SI Bal Kishan (PW10) proved the FIR No. 8/07 as Ex.PW10/A. Sh. Hari Chand, Investigating Officer (PW11) took the custody of the accused, bribe money of Rs. 4,000/, exhibits of this case, one pulanda of pant of the accused and other relevant documents of the case. PW11 prepared the site plan Ex.PW11/A, arrested the accused vide memo Ex.PW3/F and conducted his personal search vide memo Ex.PW3/G. Shri Madhup Vyas (PW12) accorded the sanction for prosecution of the accused vide sanction order Ex.PW12/A. Sh. B. S. Thakur (PW13) handed over Ex.PW8/B1 to B5 seized vide memo Ex.PW8/B on 30.04.2005 during investigation.
7. To establish the charge against the accused, the prosecution in relation to the demand and receipt of the illegal gratification examined four material witnesses being Mohan Lal (PW5), Complainant Ravi FIR No. 08/2007 State Vs. Salim Ahmad 4/36 Kumar (PW3), Panch Witness Satinder Pal Singh (PW7) and the Raid Officer Inspector Sunil Kumar (PW9).
8. Mohan Lal (PW5) deposed that in the year 2006 he had purchased Flat No. 34, Lord Krishna Marg, Adarsh Nagar, Delhi from Sh. Om Prakash through his friend Ravi Kumar, the Complainant (PW3) and submitted the documents in the office of SubRegistrar, Pitampura, Delhi for registration. An objection was raised regarding deficiency of stamp duty by the SubRegistrar which was made good. PW5 deposed that he initially went to the office of the SDM regarding the deficient stamp duty but later on the matter was followed up by the Complainant (PW3) and he informed him that one person in the office of SDM was demanding bribe and not handing over the document to him. PW5 further deposed that his friend Ravi told him to send Rs. 10,000/ to Rs.15,000/ to give bribe and have the work done.
9. The Complainant (PW3) also deposed on the lines of PW5 and added that he had gone to the office of the SubRegistrar, Pitam Pura, Delhi to collect the documents of the flat of Mohan Lal (PW5) but was diverted to the office of SDM, Ram Pura, Delhi and came to know that the sale documents were insufficiently stamped. PW3 deposed that he met accused Salim Ahmed in this regard who gave him a slip/challan for depositing the deficient stamp duty which he deposited at the treasury FIR No. 08/2007 State Vs. Salim Ahmad 5/36 Tis Hazari Courts, Delhi and handed over the copy of the challan to the accused and informed him that the needful had been done. Complainant (PW3) deposed that the accused told him to collect the documents after 34 days and when he went to the SDM Office, Ram Pura the accused handed him the papers and asked him to get the same photocopied. The Complainant (PW3) did not support the case of prosecution and turned hostile.
10. The prosecution also examined Panch Witness (PW7) who deposed that on 02.03.2007 he was on duty in the Anti Corruption Branch and the Complainant (PW3) lodged a complaint Ex.PW3/A regarding demand of bribe by Patwari. He further deposed that the Complainant (PW3) produced Rs.4,000/ i.e. 5 GC notes in the denomination of Rs.500/ each and 15 GC notes in the denomination of Rs.100/ each before the Raid Officer (PW9) who recorded their serial numbers in the preraid report Ex.PW3/C and treated those notes with phenolphthalein powder and explained the characteristics of the phenolphthalein powder to him as well as the Complainant (PW3). Panch Witness (PW7) further deposed that the Raid Officer (PW9) directed him to remain close to the Complainant (PW3) and to overhear the conversation and after being satisfied that bribe had actually been given, give a signal by touching his hand on his beard. The Panch FIR No. 08/2007 State Vs. Salim Ahmad 6/36 Witness (PW7) further deposed that he along with the Complainant (PW3), Raid Officer (PW9) and other members of raiding party reached at DC Office, Rampura, Delhi in a government vehicle. The Panch Witness (PW7) deposed that he along with the Complainant (PW3) went inside Room No. 20 of the SDM Office where the accused was found sitting and the Complainant (PW3) asked him to give his documents on which the accused handed over the documents to the Complainant (PW3) and asked him to get the same photocopied and after getting those documents photocopied he along with the Complainant (PW3) again went to said room and the accused kept the photocopy with him and handed over the original documents to the Complainant (PW3). Thereafter the accused demanded the bribe from the Complainant (PW3) by saying "Jo Manga Tha Aur Wada Kiya Tha Wo Dedo". The Panch Witness (PW7) further deposed that thereafter the Complainant (PW3) took out the GC notes from his pocket and handed over the same to the accused which were received by the accused with his left hand and thereafter accused kept the GC notes in the left pocket of his pant. The Panch Witness (PW7) further deposed that he gave a predetermined signal on which the members of the raiding party came to the spot and he informed the Raid Officer (PW10) that accused had demanded and accepted the bribe of Rs. 4,000/ from the Complainant (PW7) with his FIR No. 08/2007 State Vs. Salim Ahmad 7/36 left hand and kept the same in the left pocket of his pant. The Raid Officer (PW9) disclosed his identity and challenged the accused that he had accepted bribe and offered his search before taking the search of the accused but he refused. The Panch Witness (PW7) further deposed that on the instructions of Raid Officer (PW9) he took the search of the accused and recovered those treated GC notes from the left pant pocket of the accused and tallied their serial numbers with the serial numbers mentioned in the preraid report Ex.PW3/C which were found to be the same and thereafter those recovered GC notes were taken into possession vide seizure memo Ex.PW3/D. The Panch Witness (PW7) further deposed that thereafter the left hand wash and the wash of left pant pocket of the accused was taken which turned pink and the solution was transferred into four bottles which were sealed with the seal and marked paper slips LHWI & II and LSPPWI & II were pasted on those bottles and the pant of the accused was converted into a sealed pulanda and the bottles, pulanda and sample of seal were taken into possession vide seizure Memo Ex.PW3/E and the Raid Officer (PW9) seized the documents Ex.PW7/A from the Complainant (PW7) vide seizure memo Ex.PW3/N and drew the post raid proceedings Ex.PW7/B. The accused was arrested vide arrest memo Ex.PW3/F and personal search memo of accused was also taken vide memo Ex.PW3/G. FIR No. 08/2007 State Vs. Salim Ahmad 8/36
11. Inspector Sunil Kumar, Raid Officer (PW9) corroborated the testimony of the Panch Witness (PW7) on all material aspects and deposed that on the predetermined signal he along with other members of the Raiding Party rushed to the spot where the Panch Witness (PW7) disclosed that accused Salim Ahmed had demanded and accepted the bribe money of Rs. 4,000/ from the Complainant (PW3) with his left hand and had kept the same in the left pocket of his pant. He introduced himself as Inspector from Anti Corruption Branch and challenged the accused that he had accepted the bribe of Rs.4,000/ from the Complainant (PW3) on which the accused became perplexed. The Raid Officer (PW9) further deposed that on his instructions the Panch Witness (PW7) recovered the tainted money from the possession of the accused and drew the postraid proceedings Ex.PW7/B and prepared Rukka Ex.PW9/A and sent the same for registration of the case and arrested the accused and handed over the custody of accused, case property, recovered GC notes, exhibits of this case, seizure memos and copy of raid report to Inspector Hari Chand (PW11) for investigation.
12. The Accused in support of his defence examined Sh. R.P. Singh, Tehsildar as DW1 who deposed that he was posted as FIR No. 08/2007 State Vs. Salim Ahmad 9/36 Naib Tehsildar, Model Town, Delhi having his office at Rampura, Delhi and the accused Salim Ahmad was posted as Patwari in the office of SDM, Model Town, Delhi and used to sit opposite to his room. DW1 deposed that he did not come to know of any raid on 02.03.2007 though he remained in the office till 06.00 p.m. This witness admitted in the crossexamination that may be he did not come to know of the raid as his room and the room of the accused was at a distance of 1015 meters. Sh. Swet Mani, LDC in the office of SDM, Model Town, Delhi examined as DW2 also deposed that on 02.03.2007 he remained in office till 07:30 p.m. but no raid was conducted. Sh. Rajender Singh Chhiller examined as DW3 deposed that he is not aware of any raid which was conducted by Anti Corruption Branch on 02.03.2007 even though he remained in office till 08.30 p.m. and he came to know on 03.03.2007 that the accused has been apprehended by the officials of Anti Corruption Branch. Sh. M.K. Bakolia examined as DW4 deposed that on 02.03.2007 he left his office after 06.00 p.m. but no raid was conducted. Smt. Usha Bhatia posted as U.D.C. in the DC office, Rampura, Delhi examined as DW 5 deposed that no raid was conducted in her presence.
FIR No. 08/2007 State Vs. Salim Ahmad 10/36
13. ARGUMENTS
In this background the Ld. APP argued that from the material on record the prosecution has successfully proved the charges framed against the accused. On the other hand, the Ld. Defence Counsel argued:
1. That the present case is false and the accused was implicated at the behest of two inspectors of Anti Corruption Branch namely, K.S. Pathania and Sunil Kumar who had met the accused seeking some personal favour and the accused could not oblige.
2. That the Complainant (PW3) turned hostile and the prosecution failed to prove the two most important ingredients of Section 7 &
13 (i) (d) of the Prevention of Corruption Act, 1988 i.e. the demand and acceptance of bribe. Once the Complainant (PW3) has himself not deposed about the demand made by the accused, the case of the prosecution fails.
3. That the complaint Ex.PW3/A was not made voluntarily.
4. That the Head of the office was not intimated when the accused, a public servant was apprehended.
5. That the Panch Witness ( PW7) could not establish himself as an independent witness.
FIR No. 08/2007 State Vs. Salim Ahmad 11/36
6. That no other public witness joined the raid proceedings which proves that the alleged incident never took place and the whole case of the prosecution is a fabricated one.
7. That the defence witness Sh. Rajinder Singh Chiller (DW3), Sh. M.K. Bakolia (DW4) and Smt. Usha Bhatia (DW5) have clearly proved that no raid whatsoever took place on 02.03.2007 in the SDM Office, Rampura, Delhi.
8. That the whole case of the prosecution is that the accused demanded illegal gratification for handing over of the sale deed whereas on the contrary it has emerged on record that the sale deed was registered on 02.03.2007.
I heard the rival contentions and carefully perused the record. Before an offence is held to fall under Section 7 of the Prevention of Corruption Act, 1988, the following requirements are required to be satisfied:
1. The accused at the time of an offence was or expected to be a public servant;
2. That he accepted or obtained, or agreed to accept, or attempted to obtain from some person a gratification;
3. That such gratification was not a legal remuneration due to him FIR No. 08/2007 State Vs. Salim Ahmad 12/36 and that he accepted the gratification in question as a motive or reward for doing or forbearing to do official act; showing or forbearing to show favour or disfavour to someone in exercise of his official functions;
rendering or attempting to render, any service or disservice to someone.
Thus all that the prosecution has to establish is that the accused was a public servant and that he had obtained illegal gratification for showing for forbearing to show in exercise of the official functions favour or disfavour.
14. PUBLIC SERVANT The case of the prosecution is that accused Salim Ahmed, a public servant was working as a Patwari at SDM Office, Rampura, Delhi at the relevant time. This fact is not disputed by the accused. The sanction for prosecution of accused under Section 19 of the Prevention of Corruption Act, 1988 was accorded by Sh. Madhup Vyas (PW12) vide sanction order Ex. PW5/A on which the accused has no grievance.
15. DEMAND, ACCEPTANCE & RECOVERY It is submitted by the Ld. Defence Counsel that in a trap case onus is always on the prosecution to prove demand and acceptance of the bribe amount whereas the prosecution failed to prove that the accused has demanded or accepted the bribe amount as the Complainant (PW3) failed to support the case of the prosecution and deposed that when he met the FIR No. 08/2007 State Vs. Salim Ahmad 13/36 accused and demanded the documents from him he gave him the documents for procuring a photocopy for his record. The Ld. Defence Counsel relied upon AIR 2007 SC 489, (2006) 1 SCC 401 and AIR 2003 SC 2169 and argued that the prosecution had failed to prove any demand made by the accused. Ld. Defence Counsel also pointed out that when the Complainant (PW3) was returning with a photocopy one person followed him and kept a revolver on his back and asked him to remain silent. It is therefore suggested that the complaint Ex.PW3/A has been made under duress. Complainant (PW3) deposed that "I inquired from the accused about my papers and accused handed me my papers and asked me to get the photo copies of those documents. That person also followed me. The persons who accompanied me for getting the documents photocopies while returning back showed me a revolver and asked me to keep silent and further told me that he was from Anti Corruption Branch. I handed over the photo copies to accused".
The Ld. Defence Counsel further argued that even though recovery of GC notes was made from the accused 'mere recovery' is not sufficient and has referred to 1975 SCC(Cr)491,1980SCC(Cr) 121, 4 JT 1989 (3) SC 313, AIR 2003 SC 2169,2009 (4) RCR (Cr) 880, and 2010 (2) Crimes 351 SC.
FIR No. 08/2007 State Vs. Salim Ahmad 14/36 Returning to the record the Complainant (PW3) in his complaint Ex.PW3/A specifically stated that:
"When he met accused Salim Ahmad, Patwari in the SDM Office, Rampura, Delhi was demanding bribe of Rs. 15,000/ from him for forwarding the papers of his flat to the Competent Authority and when he told the accused that he was not having that much of amount the accused asked him to give the money in installments of Rs. 5,000/ each and called him on 02.03.07 with the bribe amount of Rs. 4,000/ at SDM Office, Rampura, Delhi".
It is true that the Complainant (PW3) when examined in Court as PW3 turned hostile but admitted that "the complaint Ex.PW3/A was in his handwriting wherein he stated that the Flat No. D34 was purchased by one Sh. Mohan Lal and he had deposited his papers in the office of SDM, Pitampura but the same had been forwarded to the office of SDM, Rampura, Delhi. The Complainant (PW3) besides admitting that the complaint Ex.PW3/A was in his handwriting admitted his signatures on the preraid proceedings Ex.PW3/C, seizure memo of the treated GC notes Ex.PW3/D, seizure memo of pulanda of pant of accused & bottles in which samples were transferred Ex.PW3/E, arrest memo Ex.PW3/F, FIR No. 08/2007 State Vs. Salim Ahmad 15/36 personal search memo Ex.PW3/G, seizure memo of documents Ex.PW3/N, bottles Ex.P21 to Ex.PW24 and on the inner portion of the left pocket of the pant of the accused.
The Panch Witness (PW7) supported the case of the prosecution to its entirety and deposed that he was on duty as Panch Witness on 02.03.2007 and at about 2:15 P.M. Complainant (PW3) came to the Anti Corruption Branch and wrote a complaint Ex.PW3/A in his presence before the Raid Officer (PW9) which was for demand of bribe by a Patwari. The Panch Witness (PW7) identified his signatures on the complaint Ex.PW3/A. He also confirmed that the Complainant (PW3) had brought Rs.4,000/ in the denomination of Rs.500/ and Rs.100/ and handed over the same to the Raid Officer (PW9) who recorded the serial numbers of the GC notes in the preraid report Ex.PW3/C. The Raid Officer (PW9) applied powder on the GC notes and gave demonstration by touching his right hand and taking wash in some water like solution which turned pink and the Raid Officer (PW9) instructed him to remain close to the Complainant (PW3) and to overhear the transaction and on being satisfied that the bribe had been given, to give a signal by touching his beard. PW7 deposed that the solution was thrown away and hands were washed with clean water and those treated GC notes were given to the Complainant (PW3) which he kept in his pocket and the Raid Officer FIR No. 08/2007 State Vs. Salim Ahmad 16/36 (PW9) drew the preraid proceedings Ex.PW3/C. PW7 deposed that about 4:15 P.M. he along with the Complainant (PW3) went inside the SDM office to Room No. 20 where accused was found sitting. PW7 deposed that:
"I along with Complainant went inside the SDM office to room no. 20 where accused was found sitting. Complainant asked him to give his documents. Thereafter accused Salim Ahmad told the Complainant to wait for 1520 minutes and thereafter he would give the documents. Accused handed over the documents to the Complainant and asked him to get the documents photocopied. Thereafter I along with the Complainant went to get the documents photocopied and thereafter I returned with the Complainant and again went in the said room. At that time accused was not in his room and after 57 minutes he came in the room. Accused kept the photo copy with him and handed over the original documents to the Complainant.
The Panch Witness (PW7) further deposed that:
Thereafter the accused demanded the bribe amount from the Complainant by saying "JO MANGA THA AUR WADA KIYA THA WO DEDO". Complainant again FIR No. 08/2007 State Vs. Salim Ahmad 17/36 requested the accused not to take the bribe. Thereafter accused told the Complainant that NEXT TIME WHEN HE WOULD COME, FIRST HE WOULD TAKE THE BRIBE THEN HE WOULD DO THE WORK.
The Panch Witness (PW7) deposed that:
Thereafter Complainant took out the GC notes of Rs. 4,000/ from his pocket and handed over to the accused which were received by the accused with his left hand and thereafter accused kept the GC notes in the left pocket of his pant.
The Panch Witness deposed that he came out of the room and gave a predetermined signal on which the members of the Raiding Party came to the spot and on enquiries made by the Raid Officer (PW9) he told him that the accused had demanded and accepted the bribe of Rs.4,000/ from the Complainant (PW3) and kept the same in his left pant pocket. He further deposed that the Raid Officer (PW9) disclosed his identity and challenged the accused. The Panch Witness (PW7) further deposed that:
On the instructions of Raid Officer, I took the search of the accused and RECOVERED FIR No. 08/2007 State Vs. Salim Ahmad 18/36 THOSE TREATED GC NOTES FROM THE LEFT POCKET OF THE PANT OF THE ACCUSED.THE SERIAL NUMBERS OF THOSE RECOVERED GC NOTES WERE TALLIED WITH THE SERIAL NUMBERS MENTIONED IN THE PRE RAID REPORT WHICH TALLIED. Those treated GC notes were taken into possession vide seizure memo Ex.PW3/D".
The Panch Witness (PW7) further deposed that the left hand of the accused was dipped in some water type solution which turned pink and that solution was transferred in two bottles which were sealed and marked paper slips LHWI & II were pasted on two bottles which were signed by him and the Raid Officer (PW9). Similarly the wash of the left pant pocket of the accused was taken in the similar style and the pink colour solution was sealed in bottles marked LSPPWI & II and signed by him as well as the Raid Officer (PW9). The Panch Witness (PW7) deposed that the Raid Officer (PW9) had drawn the postraid proceedings Ex.PW7/B. The GC notes have been identified as P1 P20 and the bottles as P21 P24 and during crossexamination the Panch Witness (PW7) confirmed that the Complainant (PW3) signed the complaint Ex.PW3/A in his presence though the same was not written in his presence.
FIR No. 08/2007 State Vs. Salim Ahmad 19/36 The Raid Officer (PW9) corroborated the testimony of the Panch Witness and deposed that the Complainant (PW3) gave his written complaint Ex.PW3/A to him in the presence of the Panch Witness (PW7). The Raid Officer (PW9) identified his signatures and that of the Complainant (PW3) & Panch Witness (PW7). The Raid Officer (PW9) also deposed that the Complainant (PW3) produced the GC notes of Rs. 4,000/ in the presence of the Panch Witness (PW7) and he recorded their serial numbers in the preraid report Ex.PW3/C. The Raid Officer (PW9) deposed that the raiding team reached the DC Office, Rampura where the Complainant (PW3) accompanied by Panch Witness (PW7) went inside Room No. 20 and came out and revealed that the accused had asked them to get the documents photocopied. Thereafter the Complainant (PW3) and the Panch Witness (PW7) again entered the Room No. 20 and in a short while the Panch Witness (PW7) gave a pre determined signal on which he reached the spot where the accused was identified as the person who had demanded and accepted bribe money of Rs. 4,000/ from the Complainant (PW3) and kept the same in the left pocket of his pant. While corroborating the testimony of the Panch Witness (PW7), the Raid Officer (PW9) deposed that he introduced himself and challenged the accused who became perplexed and he instructed the Panch Witness (PW7) to recover the bribe money from the FIR No. 08/2007 State Vs. Salim Ahmad 20/36 accused and Rs.4,000/ were recovered from his left pant pocket, the serial numbers of those recovered GC notes when tallied with the serial numbers mentioned in the preraid report tallied. The Raid Officer (PW9) corroborated the testimony of Panch Witness (PW7) on the hand wash and deposed that the hand wash and the wash of the pant of the accused was taken and pink colour solution retained in LHWI & II and LSPPWI & II and the paper slips were signed by him as well as the Panch Witness (PW7). The GC notes have been identified as P1 P20 and the bottles as P21 P24. The Raid Officer (PW9) deposed that he seized the photocopy of the sale deed Ex.PW7/A from the Complainant (PW3) vide seizure memo Ex.PW3/N and the pulanda of the pant of accused was taken into possession vide Ex.PW3/E.
16. From the testimony of the Panch Witness (PW7) and the Raid Officer (PW9) it is proved that Complainant (PW3) lodged a Complaint Ex.PW3/A in the Anti Corruption Branch which bears his signature as well as the signatures of the Panch Witness (PW7) and Raid Officer (PW9). The Panch Witness (PW7) and the Raid Officer (PW9) have also proved that GC notes of Rs.4,000/ i.e. 5 GC notes of Rs.500/ each and 15 GC notes of Rs.100/ each which were handed over to the Raid Officer (PW9) by the Complainant (PW3) and the Raid Officer (PW9) recorded the serial numbers of those GC notes in the preraid FIR No. 08/2007 State Vs. Salim Ahmad 21/36 report Ex.PW3/C were again returned to the Complainant (PW3) after applying phenolphthalein powder. Complainant (PW3) admitted his signatures on preraid report Ex.PW3/C. The Panch Witness (PW7) deposed that he gave a predetermined signal and the Raid Officer (PW9) reached the spot immediately. As soon as the accused was challenged by the Raid Officer (PW9) that he had accepted the bribe, accused became perplexed and on the search of the accused the GC notes were recovered from the possession of the accused, the serial numbers of which when tallied with the serial numbers mentioned in the preraid report Ex. PW3/C were found to be the same. The Complainant (PW3), Panch Witness (PW7) and Raid Officer (PW9) proved the seizure memo of GC notes Ex.PW3/D.
17. Ld. Defence Counsel submitted that the Complainant (PW3) turned hostile and it is not safe to rely upon the statement of Panch Witness (PW7) and Raid Officer (PW9). It is settled law that evidence of a witness declared hostile is not wholly effaced from the record and that part of evidence which is otherwise acceptable can be acted upon. The Complainant (PW3) admitted that on 02.03.2007 he gave his complaint Ex.PW3/A in the Anti Corruption Branch and admitted his signatures on the preraid proceedings, seizure memo of the GC notes, seizure memo of the exhibits of this case, his signatures on arrest memo and his signatures FIR No. 08/2007 State Vs. Salim Ahmad 22/36 on the bottles Ex.P21 to P24 and on the inner portion of the pant of the accused. Reference is placed on Khujji V/s State of UP AIR 1991 Supreme Court 1853.
18. The law is that even if the Complainant and Panch Witness have turned hostile the conviction can be made on the solitary statement of trap officer without corroboration if it inspires confidence. Reference is placed on case of Hazari Lal V/s State (Delhi Admn) AIR 1980 Supreme Court 873.
"In that case the allegations against the accused who was a police officer was that he demanded bribe from the complainant for release of his scooter rickshaw which was seized by the police. The trap was laid and the accused was caught red handed. However, during trial complainant turned hostile and deposed that when he went to the police station on first occasion to obtain delivery of his scooter rickshaw it was not the accused that was present but one Hawaldar was present and it was not the accused but that Hawaldar who demanded bribe of Rs. 60/ from him and when he went to the police station along with punch witness he found accused there and asked him to take a sum of Rs. 60/ and return the scooter rickshaw. He stretched his hand with the money towards the pocket of FIR No. 08/2007 State Vs. Salim Ahmad 23/36 accused 's trouser but accused said the money might be paid to the person for whom it was meant for. He refused to receive the money and jerked complainant 's hand with his hand as a result of which the notes came to be flung across the wall into neighboring room. He deposed that accused neither demanded the amount from him nor accepted the amount. The punch witness who went along with the complainant could not be examined as he became insane and other punch witness turned hostile".
The conviction was based on the statement of trap officer and the Hon'ble Supreme Court held as under : "We are not prepared to accept the submission of Shri Frank Authony that he is the very Police Officer who laid the trap should be sufficient for us to insist upon corroboration. We do wish to say that there is no rule of prudence which has crystallized into a rule of law, nor indeed any rule of prudence, which requires that the evidence of such officers should be treated on the same footing as evidence of accomplices and there should be insistence on corroboration. In facts and circumstances of a particular case a Court may be disinclined to act upon the evidence of such an officer without corroboration, but, equally, in the facts and circumstances of FIR No. 08/2007 State Vs. Salim Ahmad 24/36 another case, the Court may unhesitatingly agent the evidence of such an officer."
19. Ld. Defence Counsel has also argued that the Complainant (PW3) has deposed that "I only handed over Rs. 3,950/ to the Raid Officer and he added Rs. 50/ in the said amount from his own pocket". The Complainant (PW3) has not spoken the truth and the Panch Witness (PW7) and the Raid Officer (PW9) both proved that the Complainant (PW3) brought Rs. 4,000/ in the Anti Corruption Branch and produced the same before the Raid Officer (PW9). The Complainant (PW3) did not speak the truth merely to help the accused and create a doubt in prosecution story. Even the defence taken by the accused is that he has been falsely implicated at the behest of Inspector K. S. Pathania and Inspector Sunil Kumar of Anti Corruption Branch as he failed to show personal favour to them is nothing but an after thought. Had this been true, the prosecution witnesses would have been crossexamined on this aspect and some suggestions given to the witnesses. The accused for the first time in his statement under Section 313 Cr.P.C. came up with the story that he had been falsely implicated at the behest of the two Inspectors of Anti Corruption Branch.
20. The Complainant (PW3) after making his complaint Ex.PW3/A became hostile when examined in court and introduced new FIR No. 08/2007 State Vs. Salim Ahmad 25/36 facts by stating that the Complainant (PW3) had given him the documents but and when he was returning after getting the same photocopied one person kept a revolver on his back and asked him to keep silent and told him that he was from the Anti Corruption Branch. If it were true, the Panch Witness (PW7), an independent person accompanying the Complainant (PW3) would have disclosed this fact. The Complainant (PW3) had every liberty to raise hue and cry and make a complaint to the concerned quarters but he failed to bring this fact to the knowledge of the concerned quarters. It is also immaterial whether the Raid Officer (PW9) seized the original or the photocopy of the sale deed as the date of registration of the sale deed has no bearing on the present case. The accused has been charged for demanding and accepting illegal gratification and the court is to determine whether the accused demanded or accepted the bribe.
21. Simply because the complainant turned hostile just to help the accused it cannot be said that mere recovery of bribe amount by itself does not prove that accused demanded the bribe amount. The demand of bribe has been proved from the testimony of the Panch Witness (PW7) and the recovery of the bribe money from the accused has been proved from the testimony of the Panch Witness (PW7) and the Raid Officer (PW9).
FIR No. 08/2007 State Vs. Salim Ahmad 26/36
22. Once it is proved that the bribe amount was recovered from the accused then it was for him to prove that the amount received by him was his legal remuneration. In this case the accused has not offered any explanation regarding recovery of Rs.4,000/ from him from his possession. Here it is useful to refer to Three Judge Bench of Hon'ble Supreme Court in Raghubir Singh V/s State of Haryana AIR 1974 SC 1516 wherein it was held that the very fact that the accused was in possession of 'marked currency notes' against the allegations that he demanded and received the amount is 'res ipsaloquitur."
23. In State of AP V/s Kommaraju Gopala Krishna Murthy 2000 (9) SCC 752 it was held that when amount is found to have been passed to the public servant the burden is on public servant to establish that it was not by way of illegal gratification. That burden was not discharged by the accused.
24. The prosecution succeeds the moment it is shown that a public servant had accepted some money, which was not legal remuneration. The presumption under Section 20 of the Prevention of Corruption Act comes into play shifting the burden upon the public servant to explain as to why he had received the money.
FIR No. 08/2007 State Vs. Salim Ahmad 27/36
25. The matter regarding presumption under Section 20 of the Prevention of Corruption Act came up before the Four Judge Bench of Hon'ble Supreme Court in case of Dhanwant Rai Balwant Rai Desai V/s State AIR 1964 Supreme Court 575 considered this fact and held as under: Therefore, the court has no choice in the matter, once it is established that the accused person has received a sum of money which was not due to him as a legal remuneration.
Of course, it is open to that person to show that though that money was not due to him as legal remuneration, it was legally due to him in some other manner or that he had received it under a transaction or an arrangement which was lawful. The burden resting on the accused person in such a case would not be as light as it is where a presumption is raised under Section 114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. The words ' unless the contrary is proved ' which occurs in this provision make it clear that the presumption has to be rebutted by ' proof ' and not by a mere explanation which is merely plausible. A fact is said to be proved when its existence is directly FIR No. 08/2007 State Vs. Salim Ahmad 28/36 established or when upon the material before it the Court finds its existence to be probable that a reasonable man would act on the supposition that it exists. Unless, therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted. Something more than raising a reasonable probability, is required for rebutting a presumption of law. The bare word of the appellant is not enough and it was necessary for him to show that upon the established practice his explanation was so probable that a prudent man, ought in the circumstances, to have accepted it."(emphasis supplied ).
26. It is also useful to refer to the decision of Hon'ble Supreme Court in case of M. Narsinga Rao V/s State of A.P. 2001 (1 ) SCC 691 rendered by Three Hon'ble Judges of Supreme Court. In that case accused demanded a bribe of Rs. 500/ from a milk transporting contractor for recommending the payment of an amount due to the contractor. The accused was caught red handed while accepting the bribe amount. Accused took the plea that currency notes were stuffed into his pocket. During trial complainant and panch witness did not support the prosecution case and it was argued before Hon'ble High Court that it is FIR No. 08/2007 State Vs. Salim Ahmad 29/36 not possible to draw any presumption against the delinquent public servant in the absence of direct evidence to show that the public servant demanded bribe. The Hon'ble High Court held as under : "It is true that there is no direct evidence in this case that the accused demanded and accepted the money. But the rest of the evidence and the circumstances are sufficient to establish that the accused had accepted the amount and that gives rise to a presumption under Section 20 of the Prevention of Corruption Act that he accepted the same as illegal gratification, particularly so, when the defence theory put forth is not accepted."
27. In the present case the Panch Witness (PW7) admitted that postraid proceedings Ex. PW7/B bears his signature. Ex.PW7/B is a contemporaneous prepared at the instance of PW7. PW7/B is nothing but a panchnama which is drawn by the Raid Officer (PW9) at the instance of PW7 and it is duly signed by the Complainant (PW3), Panch witness (PW7) and Raid Officer (PW9). This panchnama is admissible in FIR No. 08/2007 State Vs. Salim Ahmad 30/36 evidence. Reference is placed on Santa Singh V/s State of Punjab AIR 1956 Supreme Court 526 where it was held that mere presence of the police officer when a statement is made does not by itself render such a statement inadmissible. So long as a panchnama is a mere record of the things heard and seen by panchas and does not constitute a statement communicated to a police officer in the course of investigation by him it would not fall within the mischief of section 162 of the Code of Criminal Procedure. In the raid proceedings it is specifically stated that Panch Witness (PW7) informed the Raid Officer (PW9) that accused Salim Ahmed demanded bribe amount of Rs. 4,000/ from the Complainant (PW3) and accepted the same with his left hand and kept the same in the left pocket of his pant. Thereafter those very GC notes whose numbers were mentioned in pre raid report Ex. PW3/C were recovered from accused Salim Ahmed.
28. CHEMICAL ANALYSIS The Panch Witness (PW7) deposed that the left hand wash and the wash of the pant pocket of accused were taken in a colourless solution of Sodium Carbonate which turned pink and the solutions were transferred into empty small clean bottles and marked paper slips were pasted on these bottles. This fact has also been corroborated by the Raid Officer (PW9) and the solutions LHWI & II and LSPPWI & II were FIR No. 08/2007 State Vs. Salim Ahmad 31/36 sent for chemical analysis, the result of which was found positive. There is absolutely no cross examination of the fact that when he dipped his finger in the solution of sodium carbonate, the same turned pink which is a clear indication that he touched the money and handled it. No suggestion was given to the Panch Witness (PW7) and the Raid Officer (PW9) that the wash of left hand of the accused and the wash of pant pocket of accused were not taken. It is not even suggested to the Panch Witness (PW7) and the Raid Officer (PW9) that the solution of the wash was not filled in bottles and that washes were not taken and the same turned pink and the solution was transferred to the bottles.
The FSL Report Ex.PW8/A gave positive test of phenolphthalein powder and sodium carbonate and from which it is clear that the accused handled the GC notes with his left hand and kept the same in the left pocket of his pant. If accused had not accepted the bribe amount then how the wash of his left hand and the wash of his pant pocket turned pink and gave positive test for phenolphthalein powder. It turned pink only because bribe amount was recovered from the left pant pocket of the accused. Accused has not given any explanation as to how wash of his left hand and wash of left pant pocket turned pink. The importance of phenolphthalein test was underlined by the Hon'ble Supreme Court in Som Parkash V/s State of Delhi AIR 1974 Supreme FIR No. 08/2007 State Vs. Salim Ahmad 32/36 Court 989, where in para 10 it is held as under:
"But the ................ of course , the oral evidence of PWs 1 and 4 by itself, if believed, as rightly believed by the High Court, proves the passing of the money when challenged by P.W.7. The fact is indisputable that the hands, the handkerchief and the inner lining of the trouser pocket of the accused turned violet when dipped in soda ash solution. From this the State Counsel argues that on no hypothesis except that the notes emerged from the accused 's pocket or possession can the triple colour change be accounted for. The evidence furnished by inorganic chemistry often outwits the technology of corrupt officials, provided no alternative reasonable possibility is made out. The appellant offers a plausible theory, PW 1 kept the notes with him and h is hands thus carried the powder. He gave a bottle of coke to the accused and the bottle thus transmitted particles of phenolphthalein to the latter 's hands. He ( the accused ) wiped h is face with the handkerchief and put it into his trouser pocket thus contaminating the lining with the guilty substance. Moreover, the inner lining was dipped by PW 7 with his hands which had the powder. Thus, all the three items FIR No. 08/2007 State Vs. Salim Ahmad 33/36 stand explained, according to him. These recondite possibilities and likely freaks have been rejected by both the courts and we are hardly persuaded into hostility to that finding. It is but meet that scienceoriented detection of crime is made a massive programme of police work, for in our technological age nothing more primitive can be conceived of than denying the discoveries of the sciences as aids to crime suppression and nothing cruder can retard forensic efficiency than swearing by traditional oral evidence only thereby discouraging the liberal use of scientific research to prove guilt."
The statement of the Panch Witness (PW7) as well as the Raid Officer (PW9) is corroborated with the FSL Report wherein it was concluded that "On chemical examination, exhibits LHWI & LSPPWI were found to contain Phenolphthalein and Sodium Carbonate respectively.'' The FSL Report Ex.PW8/A clearly and unerringly points towards the guilt of the accused. This single piece of evidence, which is a chemical analysis conducted by FSL is sufficient enough if not absolute FIR No. 08/2007 State Vs. Salim Ahmad 34/36 and complete in all respects to raise a complete presumption of guilt against accused Salim Ahmad and there is no escape from the inevitable conclusion that accused Salim Ahmed did in fact demand and accept the bribe money of Rs.4,000/ which was recovered from him and therefore he deserves conviction.
29. CONCLUSION As a result of the above discussion, I am of the considered view that prosecution has been able to prove beyond reasonable doubt that accused Salim Ahmad while being employed as a public servant demanded and accepted bribe of Rs.4,000/ other than legal remuneration from the Complainant (PW3) and committed an offence punishable under Section 7 of Prevention of Corruption Act, 1988.
The prosecution has been further able to prove beyond reasonable doubt that accused Salim Ahmad while being employed as a public servant obtained bribe of Rs.4,000/ from the Complainant (PW3) as a pecuniary advantage for himself by corrupt or illegal means or otherwise by abusing his position as a public servant and thereby committed an offence of criminal misconduct as specified Under Section 13 (i)(d) and punishable under section 13(2) of the Prevention of Corruption Act, 1988.
FIR No. 08/2007 State Vs. Salim Ahmad 35/36
30. Result:
As a result of the above discussion, accused Salim Ahmad is convicted for committing an offence punishable under Section 7 of the Prevention of Corruption Act 1988 and also for offence under Section 13 (i ) (d) punishable under section 13 (2) of the Prevention of Corruption Act, 1988. Ordered accordingly. Let he be heard on the point of sentence.
Announced in the Open SANGITA DHINGRA SEHGAL
Court on 16.03.2012 SPL. JUDGE (ACB)/DELHI
FIR No. 08/2007 State Vs. Salim Ahmad 36/36