Gujarat High Court
State Of Gujarat vs Osman Alibhai Hathaliya on 23 April, 2024
NEUTRAL CITATION
R/CR.A/648/2008 JUDGMENT DATED: 23/04/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 648 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO Sd/-
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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STATE OF GUJARAT
Versus
OSMAN ALIBHAI HATHALIYA & ORS.
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Appearance:
MS. JYOTI BHATT, APP for the Appellant(s) No. 1
ABATED for the Opponent(s)/Respondent(s) No. 1
MR HRIDAY BUCH(2372) for the Opponent(s)/Respondent(s) No. 2,3,4
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 23/04/2024
ORAL JUDGMENT
1. This appeal has been filed by the appellant - State under Section 378(1)(3) of the Code of Criminal Procedure, 1973 against the judgment and order of acquittal dated 15.06.2007 passed by the learned Special Judge, Porbandar (herein after referred to as Page 1 of 24 Downloaded on : Fri May 03 21:24:06 IST 2024 NEUTRAL CITATION R/CR.A/648/2008 JUDGMENT DATED: 23/04/2024 undefined 'the learned Trial Court') in Special (ACB) Case No. 3 of 1999, whereby, the learned trial Court has acquitted the respondents from the offences punishable under Sections 7, 13(1)(d) read with 13(2) of the Prevention of Corruption Act (herein after referred to as 'the Act'). That, in all, the appeal was filed against four Armed Police Constable and during the pendency of the appeal, the respondent No. 1 - original accused No. 1 Osman Alibhai Hathaliya, Armed Police Constable, Porbandar expired and hence the appeal qua Respondent No. 1 was abated by an order dated 14/10/2008 of this Court. The respondents are hereinafter referred to as 'the accused' in the rank and file as they stood in the original case, for the sake of convenience, clarity and brevity.
2. The brief facts that emerge from the record of the case are as under:-
2.1] That all the accused were working as Armed Police Constables in the Police Station at Porbandar and Mr. Rustambhai Amirbhai Belim, Police Inspector, ACB (field), Rajkot had received information that the accused were halting vehicles in the Porbandar city area and threatening the drivers and demanding for illegal gratification of the amount ranging from ₹20/- to ₹50/-. That20/- to ₹20/- to ₹50/-. That50/-. That Page 2 of 24 Downloaded on : Fri May 03 21:24:06 IST 2024 NEUTRAL CITATION R/CR.A/648/2008 JUDGMENT DATED: 23/04/2024 undefined the complainant arranged for a decoy trap on 17/11/1998 and called the independent panch witnesses and explained to them about the decoy trap and thereafter went with the panch witnesses from Rajkot to Porbandar via Gondal, Jetpur and Virpur.
That on the Porbandar- Mangrol Road, Truck No.GTY-8911 was halted and the driver Hemanhai Nagabhai was halted and the arrangement for the decoy trap was explained to him and he agreed to cooperate in the decoy trap. That five currency notes of the denomination of ₹20/- to ₹50/-. That10/- were taken and the characteristic of anthracene powder and the ultraviolet lamp were explained to the panch witnesses and the complainant and the five currency notes of the denomination of ₹20/- to ₹50/-. That10/- were laced with anthracene powder and placed in the shirt pocket of the panter driver- Hemabhai Nagabhai. That the panter driver, panch witness No. 1 and the members of the raiding party sat in the truck and the panch witness No. 2, and Police Inspector, Mr. Belim followed them in their government jeep. That while the truck was going from Birla towards Khambhi of Veer Hanubhai, two constables in uniform halted the truck. That the truck driver and the panch witness No. 1 got down from the truck and when they went to the two constables, they told them to meet their superior officer who was sitting in the Page 3 of 24 Downloaded on : Fri May 03 21:24:06 IST 2024 NEUTRAL CITATION R/CR.A/648/2008 JUDGMENT DATED: 23/04/2024 undefined government vehicle and they went to the government vehicle, and at that time, the driver was asked what was filled in the truck, to which, the driver replied "cement". That the officer asked him how much weight was filled and he replied 15 tonnes and the officer told him to give an amount of ₹20/- to ₹50/-. That100/- as entry fee. That the decoy panter bargained and the amount was settled at ₹20/- to ₹50/-. That50/- and the panter driver took the tainted currency notes and gave it to the officer. That the predetermined signal was given and the members of raiding party rushed and caught the accused red handed. That the necessary panchnama was drawn and the complaint was filed at the ACB Police Station Junagadh, which was registered at I- C.R.No. 8 of 1998 on 18/11/1998 under Sections 7, 12, 13(1)(d) and 13(2) of the PC Act. The Investigating Officer took over the investigation and after the orders of sanction for prosecution were received, a chargesheet came to be filed before the learned Sessions Court, Junagadh, which was registered as special ACB Case No. 03 of 1999.
2.2] That all the accused were duly served with the summons from the learned trial Court and all the accused appeared before the learned trial Court and after the due Page 4 of 24 Downloaded on : Fri May 03 21:24:06 IST 2024 NEUTRAL CITATION R/CR.A/648/2008 JUDGMENT DATED: 23/04/2024 undefined procedure of Section 207 of the Code of Criminal Procedure, 1973 was followed, a charge at Exh: 40 was framed against the accused and the statements of the accused were recorded at Exh: 41 to 44 respectively. The accused denied all contents of the charge and the evidence of the prosecution was taken on record. 2.4] The prosecution examined 9 witnesses and produced 22 documentary evidence in support of their case. After the learned Additional Public Prosecutor filed the closing pursis at Exh; 90, the further statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 was recorded and after the arguments of the learned Additional Public Prosecutor and the learned advocate for the accused were heard, the earned Special Judge, Porbandar by the impugned judgment and order on 15.06.2007 in Special (ACB) Case No. 3 of 1999 was pleased to acquit all the accused from all the offence.
3] Being aggrieved and dissatisfied with the said judgement and order of acquittal, the Appellant- state has filed the present appeal mainly stating that the order of acquittal passed by the learned trial Court is contrary to law and evidence on record Page 5 of 24 Downloaded on : Fri May 03 21:24:06 IST 2024 NEUTRAL CITATION R/CR.A/648/2008 JUDGMENT DATED: 23/04/2024 undefined and the learned trial Court has failed to appreciate the oral evidence of 9 witnesses and the documentary evidence which have been produced by the prosecution in support of their case. That the learned trial Court has not appreciated the evidence and has committed a grave error, which is apparent on the record of the case and has failed to consider that the accused were public servants and they had demanded and accepted the amount of ₹20/- to ₹50/-. That50/ as illegal gratification from the decoy panter. That the complainant, Mr. R.A.Belim, who has been examined at Exh: 69 has fully supported the case of the prosecution and the panch witness has also witnessed the demand but the learned trial Court has not relied on the evidence of the decoy panter truck driver and the panch witnesses as they have been declared hostile before the learned trial Court. That it is settled principles of law that even if the witness has turned hostile, the portion of evidence to which the witness supports the case of the prosecution, can be read in evidence but the learned trial Court has not considered the same and has passed the impugned judgement and order, which is contrary to the evidence on record of the case. That the panch witness, who is a totally independent witness has, upto some extent, supported the case of the prosecution, but the charge Page 6 of 24 Downloaded on : Fri May 03 21:24:06 IST 2024 NEUTRAL CITATION R/CR.A/648/2008 JUDGMENT DATED: 23/04/2024 undefined against the accused is proved from the evidence of other witnesses and the learned trial court has not appreciated the evidence properly and though the tainted currency notes were recovered from the position of the accused without resorting to the presumption under Section 20 of the PC Act, the learned trial Court, by the impugned judgement and order, has acquitted the accused, which is illegal, invalid and improper and the same deserves to be quashed and set aside. That the appeal must be allowed, and the accused must be found guilty for the said offences.
4] Heard learned APP Ms. Jyoti Bhatt appearing for the appellant state and learned advocate Mr Param Buch for learned advocate Mr. Hriday Buch for the respondents. 5] Learned APP Ms. Bhatt has taken this Court through the entire evidence and has submitted that the prosecution has proved beyond reasonable doubts that the tainted currency notes with anthracene powder were found from the custody of the accused and the prosecution has proved their case beyond reasonable doubts but the learned trial Court has not considered the evidence properly. That the presumption under Section 20 of Page 7 of 24 Downloaded on : Fri May 03 21:24:06 IST 2024 NEUTRAL CITATION R/CR.A/648/2008 JUDGMENT DATED: 23/04/2024 undefined the PC Act, is available to the prosecution and the prosecution has proved that all the accused were public servants who are the members of a disciplined force and they could not demand for such amount of illegal gratification from innocent drivers in the middle of the night. That the complainant, Mr. R.A.Belim had received secret information and on the basis of that information, the decoy trap was arranged and he called the independent panch witnesses and the entire procedure has been followed properly. That the accused had demanded for the amount and the accused was caught red handed and hence the prosecution has proved beyond reasonable doubt. That the accused had committed the offence and the accused must be found guilty for the said offences and learned APP Ms. Bhatt has urged this Court to allow the appeal and set aside the impugned judgement and order of acquittal passed by the learned trial Court. 5.1] Learned advocate Mr Param Buch for learned advocate Mr. Hriday Buch has submitted that the prosecution has examined nine witnesses in all but the star witnesses being the panter and the panch witness have been declared hostile before the learned trial Court. That they have not supported the case of Page 8 of 24 Downloaded on : Fri May 03 21:24:06 IST 2024 NEUTRAL CITATION R/CR.A/648/2008 JUDGMENT DATED: 23/04/2024 undefined the prosecution, and there is no iota of evidence regarding the demand made by the accused. That from the overall analysis of evidence on record, it appears that driver Panter and the panch witness No. 1 has disowned their version and not supported the contents of the FIR, and the prima-facie basic ingredient of the offence, which is a demand, is not established beyond reasonable doubts by the prosecution. That the learned trial Court has rightly appreciated the evidence of the prosecution and failure to prove the fact of demand by the prosecution would be fatal, and in the absence of proof of acceptance of the tainted currency notes, the recovery also suffers from serious infirmities. That in the cross examination, the complainant Mr.R.A.Belim has admitted that the panchnama produced at Exh: 54 has been prepared by him, which goes against the rule or prudence and there is no evidence whatsoever regarding the role of the accused Nos. 2 to 4. That the learned trial Court has rightly concluded that there was no sufficient evidence to prove the charge against the accused and there are no exceptional circumstances in the impugned judgement so as to make it the case of perverse acquittal. Moreover, from the evidence, it is clearly made out that the sanction for prosecution was given without application of mind and Page 9 of 24 Downloaded on : Fri May 03 21:24:06 IST 2024 NEUTRAL CITATION R/CR.A/648/2008 JUDGMENT DATED: 23/04/2024 undefined when there is no evidence regarding application of mind for the grant of sanction, the charges levelled against the accused cannot be sustained and the said must warrant an acquittal. That the learned trial Court has rightly considered and appreciated the entire evidence of the prosecution while passing the impugned judgement and order of acquittal and as there is no infirmity and illegality in the impugned judgement and order of acquittal of the learned trial Court, the appeal of the appellant must be rejected. 6] Before the evidence of the prosecution is appreciated and dissected, it is essential to reiterate the cardinal principles of criminal jurisdiction as settled by the Honourable Apex Court in a Catena of decision and the first cardinal principle is that the prosecution in a criminal trial is required to prove the case against the accused beyond reasonable doubts and the prosecution cannot benefit from the weaknesses of defence. The second cardinal principle is that in a criminal trial, the accused is presumed to be innocent unless and until he is found guilty by the evidence produced by the prosecution beyond reasonable doubts and the third cardinal principle of law is that the onus of burden of proof never shifts from the prosecution.
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NEUTRAL CITATION R/CR.A/648/2008 JUDGMENT DATED: 23/04/2024 undefined 7] Before adverting to the facts of the case on hand, it would be apt to refer to the scope of the learned trial Court in acquittal appeals and the Apex Court in Criminal Appeal No.1167 of 2018 in the case of Ballu @ Balram @ Balmukund and Another Vs State of Madhya Pradesh in para Nos. 8 and 9 has observed thus:-
8. It is settled law that the suspicion, however strong it may be, cannot take the place of proof beyond reasonable doubt. An accused cannot be convicted on the ground of suspicion, no matter how strong it is. An accused is presumed to be innocent unless proved guilty beyond a reasonable doubt.
9. Apart from that, it is to be noted that the present case is a case of reversal of acquittal. The law with regard to interference by the Appellate Court is very well crystallized. Unless the finding of acquittal is found to be perverse or impossible, interference with the same would not be warranted. Though, there are a catena of judgments on the issue, we will only refer to two judgments which the High Court itself has reproduced in the impugned judgment, which are as reproduced below:
"13. In case of Sadhu Saran Singh vs. State of U.P. (2016) 4 SCC 397, the Supreme Court has held that:-
"In an appeal against acquittal where the presumption of innocence in favour of the accused is reinforced, the appellate Court would interfere with the order of acquittal only when there is perversity of fact and !aw. However, we believe that the paramount consideration of the Court is to do substantial justice and avoid miscarriage of justice which can arise by acquitting the accused who is guilty of an offence.
A miscarriage of justice that may occur by the acquittal of the guilty is no less than from the conviction of an innocent. Appellate Court, while enunciating the principles with regard to the scope of powers of the appellate Court in an appeal against acquittal, has no Page 11 of 24 Downloaded on : Fri May 03 21:24:06 IST 2024 NEUTRAL CITATION R/CR.A/648/2008 JUDGMENT DATED: 23/04/2024 undefined absolute restriction in law to review and relook the entire evidence on which the order of acquittal is founded."
8] In view of the above settled principles of law, the evidence produced by the prosecution is required to be reappreciated and that the prosecution has examined PW:1 Khimabhai Nagjibhai Godhaniya at Exh: 50. The witness is the decoy truck driver and he has stated that he does not remember the exact date of the incident, but he was going with truck No. GTY-8911 with cement and was going towards Porbandar from Narvai. That the police jeep was on the road and his truck was halted, and the contents of this truck were inquired and as it was overloaded, his documents were verified. That, he was told that the police officers were from the Anti-Corruption Bureau and told him that he would have to help them. That he agreed and some policemen sat in his truck. That, when they reached near Khambhi of Veer Hanubha, his truck was halted by some policeman and he was called to the Mobile Van where the contents of the truck was once again inquired. That his license was checked, and they had asked him to make an entry and he placed ₹20/- to ₹50/-. That50/- on the seat on which the policeman was seated. That the ACB officials came and caught four policemen. The witness has not supported the case of Page 12 of 24 Downloaded on : Fri May 03 21:24:06 IST 2024 NEUTRAL CITATION R/CR.A/648/2008 JUDGMENT DATED: 23/04/2024 undefined the prosecution and he has been declared hostile and has been cross examined at length by the learned APP but nothing to support the case of the prosecution has come on record. During the cross examination by the learned advocate for the accused, the witness has stated that he was instructed by the officer that if the demand for illegal gratification was made to have a conversation and give the amount otherwise to go to the Mobile vehicle.
8.1] The prosecution has examined PW: 2 Ravindra Atmaram at Exh: 53 and this witness is the panch witness, who was the shadow witness and had gone with the decoy panter. The witness has stated that he was called to the ACB office at Rajkot and was explained about the decoy trap and his colleague Dhansukhbhai Pithadia had agreed to be the panch witnesses. That they went in a Jeep from Rajkot with other staff of ACB and they had halted the truck, which was filled with cement and had inquired from the truck driver, and he had agreed to cooperate with them. That they had gone and the police had asked for ₹20/- to ₹50/-. That100/- but the driver bargained and gave ₹20/- to ₹50/-. That50/- and the panchnama was written but as there were many people around, they went to the Page 13 of 24 Downloaded on : Fri May 03 21:24:06 IST 2024 NEUTRAL CITATION R/CR.A/648/2008 JUDGMENT DATED: 23/04/2024 undefined Porbandar City Guest House. That the panchnama was written and they went away. The witness has not supported the case of the prosecution and has been declared hostile and has been cross- examined at length by the learned AAP, but the witness has not supported the case of the prosecution. During the cross examination by the learned advocate for the accused, the witness has stated that when he was called by his superior officer, his superior officer had asked him who he wanted to take as other Panch, and he had given the name of Dhansukhbhai Pithadia. That he and Dhansukhbhai Pithadia went to the office of ACB with an understanding that it was their government duty. That Mr. Belim decided to go to the Circuit House and do the procedure at the Circuit House, which was done in the dining hall in the Circuit House.
8.2] The prosecution has examined PW No.:3 Dhanuskhbhai Pithadia at Exh: 57 and this witness is the panch witness who had gone along with the ACB officer in the jeep. The witness has supported the case of the prosecution and has stated that when they reached, the mobile vehicle after the muddamal signal was given the currency of ₹20/- to ₹50/-. That50/- was in the hand of accused Page 14 of 24 Downloaded on : Fri May 03 21:24:06 IST 2024 NEUTRAL CITATION R/CR.A/648/2008 JUDGMENT DATED: 23/04/2024 undefined No. 1 and they had gone to the Circuit House for the panchnama. During the cross examination by the learned advocate for the accused, the witness has stated that he and the panch witness No. 1 are in the same department, and they are good friends. That he had never seen anthracene powder and the officer had told him that the powder was in the bottle but he does not remember the size of the bottle of the anthracene powder or how much anthracene powder was in the bottle. That when he reached, the trap was already completed and they were looking at the procedure of raid from far away. That the panch witness, panter and the ACB official had got down from the truck and after 5 to 10 minutes, they got down from the Jeep and went to the Mobile vehicle, and at that time, the raid was already carried out. That he does not know as to whether the currency notes that were with the panch witness No. 1 were given to the panch witness by Mr. Belim or not. That, when the currency notes were kept on the table, the fingerprints of four fingers and the thumb of the accused No. 1 were on the currency notes. That the panchnama was written by Mr. R.A.Belim, Police Inspector, as per the theory of the ACB and he was listening to the dictation of the panchnama. That if he is declared hostile before the trial Court, departmental action could Page 15 of 24 Downloaded on : Fri May 03 21:24:06 IST 2024 NEUTRAL CITATION R/CR.A/648/2008 JUDGMENT DATED: 23/04/2024 undefined be taken against him and he is afraid about the same. 8.3] The prosecution has examined P.W.No. 4 Mansukhlal Jamnadas Kubavat at Exh: 59 and the witness was working as a Clerk in the office of the Deputy Superintendent of Police at Porbandar and the witness has produced the order of sanction for prosecution at Exh: 60. This witness has stated that the offence of I-C.R.No. 8 of 1998 was registered against four police employees at the Junagadh ACB Police Station, and the sanction for prosecution was sought for from the Superintendent of Police and the sanction for prosecution was given. During the cross examination by the learned Advocate for the accused, the witness has stated that along with the letter from the office of ACB, a Proforma was also sent, which the witness has produced the proforma from his file at Exh: 61.
8.4] The prosecution has examined P.W.No.5 Jamnadas Vallabhdas Makadia at Exh: 62 and this witness has produced the service book of all the accused at Exhs. 63 to 66. 8.5] The prosecution has examined P.W.No.6 Rustambhai Amirbhai Belim at Exh:69 and this witness is the Trap Laying Page 16 of 24 Downloaded on : Fri May 03 21:24:06 IST 2024 NEUTRAL CITATION R/CR.A/648/2008 JUDGMENT DATED: 23/04/2024 undefined Officer and the complainant in the case. The witness has fully supported the case of the prosecution and has stated that he had received the secret information that the accused were taking illegal gratification from the drivers of vehicles in Porbandar City and he had decided to arrange for the decoy trap and he had called the panch witnesses and had thereafter taken the cooperation of the driver of the truck No.GTY-8911. The witness has deposed about all the events that have unfolded and all the procedure that was undertaken and has produced the complaint at Exh: 70 and the seizure memos at Exh: 71 and Exh: 72. The witness has also identified his signature on the panchnama, which is produced at Exh:54. During the cross-examination by the learned advocate for the accused, the witness has stated that he has not made a note about the secret information that was received by him and a Station Diary is maintained at the ACB Police Station. That he cannot tell us to how many days prior to 17/11/1998, he had received the secret information and had decided to arrange for the decoy trap on 17/11/1998. That he is the complainant and in the complaint, it is not mentioned that panchnama is annexed along with the complaint. That, the offence is not made out till the raid is successful and hence the complaint was not registered. That the Page 17 of 24 Downloaded on : Fri May 03 21:24:06 IST 2024 NEUTRAL CITATION R/CR.A/648/2008 JUDGMENT DATED: 23/04/2024 undefined fingerprints of the accused do not appear on the currency notes and the panchnama does not say that the panter was taken to the Circuit House.
8.6] The prosecution has examined P.W. No. 7 Rambhai Parbatbhai Chhaiya at Exh: 74 and the witness has produced the Log Register of M.T. branch at Exh: 75 and as per the same, Police Constable, Mr. Anwar Malek of the Kamlabaugh Police Station was on duty on the Mobile as a driver from 20:00 to 24: 00 Hrs. on 17/11/1998 and from 00:00 to 09:00 Hrs. on 18/11/1998. During the cross examination by the learned advocate for the accused, the witness has stated that he has not made the entry which is produced at Exh: 75 and on the date of incident, he was at Ahmedabad. That as per the documents produced at Exh: 75, accused Anwar Ismailbhai was on duty on vehicle No. GJ-11-G-
121. 8.7] The prosecution has examined P.W.No.8, Gordhan bhai Majibhai Chavda at Exh: 76 and this witness has produced the logbook of Porbandar Police Control Room at Exh: 77. Page 18 of 24 Downloaded on : Fri May 03 21:24:06 IST 2024
NEUTRAL CITATION R/CR.A/648/2008 JUDGMENT DATED: 23/04/2024 undefined 8.8] The prosecution has examined P.W.No.9 Mahendraray Jayashankar Dave at Exh: 78 and this witness is the Investigating Officer, who had taken over the investigation from the Trap Laying Officer Mr. R A.Belim and the witness has arrested the accused and thereafter filed the charge-sheet after the orders of sanction for prosecution were received. The witness has collected the necessary documents and has fully supported the case of the prosecution. During the cross-examination by the learned advocate for the accused, the witness has stated that he does not know as to whether Aslambhai Jusabhbhai Pinjara, resident of Khambhodar was a truck driver along with the Panter Khimabhai Nagjibhai. That from the documents, the witness has stated that the statement of Aslambhai Jusabbhai Pinjara was recorded and he had seized the driving licence of Aslambhai Jusabbhai Pinjara and he was a driver on the truck on the day of incident. That the muddamal currency notes were not sent to the FSL, and the anthracene powder was not seized as a muddamal. That he cannot say as to whether fingerprints could be found on the tainted currency notes. That the accused did not have any criminal background and there was no evidence about the accused being involved in any other activities of corruption. Page 19 of 24 Downloaded on : Fri May 03 21:24:06 IST 2024
NEUTRAL CITATION R/CR.A/648/2008 JUDGMENT DATED: 23/04/2024 undefined 9] On appreciation of the entire evidence produced on record by the prosecution, it is on record that the Panter driver Khimbhai Nagjibhai, who is the star witness and as per the case of the prosecution, the demand of the illegal gratification of Rs.50/- was made from this witness has completely resiled from the statement and has not supported the case of the prosecution and has been declared hostile before the learned trial Court. If the evidence of the witness is perused, the learned APP has cross examined the witness at length and the witness has not supported the case of the prosecution. There is no iota of evidence regarding the demand from any of the accused in the evidence of the witness and the panch witness Ravindrabhai Atmaram, who has been examined at Exh; 53 has also resilled from his statement completely. The panch witness has also been declared hostile and in the lengthy cross examination by the learned APP, the witness has not supported the case of the prosecution. It has also come on record that the panchnama was written at the Circuit House and not at the place of trap and as per the case of the prosecution, the accused No.1 has accepted the tainted currency notes and kept the same in his left hand but no evidence to that effect has come Page 20 of 24 Downloaded on : Fri May 03 21:24:06 IST 2024 NEUTRAL CITATION R/CR.A/648/2008 JUDGMENT DATED: 23/04/2024 undefined on record in the deposition of PW No. 1 Khimabhai Nagjibhai Godhaniya at Exh: 50 or PW No. 2 Ravindrabhai Atmaram. Moreover, it has also come on record that panch No. 2 Dhansukhbhai Parshottambhai Pitthadiya, who has been examined at Exh: 57 is not a witness to the demand and the acceptance and he has stated that he was witnessing the raid FROM a distance and the panch anama was being prepared by Mr.R.A.Belim, Police Inspector, ACB as per the theory / version of the ACB. Hence, it is proved that the panchanama was not dictated by any of the panchwitnesses and was not prepared at the spot but was prepared at the Circuit House, Porbandar. As far as the evidence regarding the order of sanction for prosecution is concerned, the order of sanction for prosecution has come on record in the deposition of the Junior Clerk Mansukhlal Jamnadas Kubavat of the Office of Deputy Superintendent of Police, Porbandar who has been examined at Exh: 59 and there is no evidence that the sanction for prosecution was given by the competent authority after proper application of mind. That during the cross examination, the witness has also produced on record the draft proforma of the order of sanction for prosecution, which was sent by the ACB office to the office of the Superintendent of Page 21 of 24 Downloaded on : Fri May 03 21:24:06 IST 2024 NEUTRAL CITATION R/CR.A/648/2008 JUDGMENT DATED: 23/04/2024 undefined Police, Porbandar and the same has come on record at Exh: 61,. This proves that the draft of the order of sanction for prosecution was sent by the ACB and accordingly the order of sanction for prosecution was prepared and it cannot be said that the sanction has been accorded after proper application of mind. Moreover, the Junior Clerk of the office of the Deputy Superintendent of Police, Porbandar has prodcued the order of sanction for prosecution on record and the contents of the documents have not been proved as the competent authority who had signed the order of sanction for prosecution has not been examined before the learned trial Court. The PW No. 6 Mr. R.A.Belim, who is the complainant and Trap Laying Officer and P.W.No.9 Mahendraray Jayashankar Dave, the Investigating Officer, who have supported the case of the prosecution and from their evidence, the factum of recovery is proved, but the demand of illegal gratification which is a sine-qua- non for the offence under the PC Act has not been proved by the prosecution beyond reasonable doubts. As far as the role of the accused Nos. 2 to 4 is concerned, there is no iota of evidence that the accused Nos. 2 to 4 have demanded for any legal gratification from the decoy panter truck driver and there is no iota of evidence against the accused Nos. 2 to 4.
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NEUTRAL CITATION R/CR.A/648/2008 JUDGMENT DATED: 23/04/2024 undefined 10] The learned trial Court has discussed all the evidence produced by the prosecution in detailed and has rightly concluded that the factum of demand, which is a sine-qua-non in cases under the PC Act has not been proved by the prosecution beyond reasonable doubts. That as the decoy panter truck driver Khimabhai Nagjibhai Godhaniya and the shadow witness Ravindrabhai Atmaram have not supported the case of the prosecution, the basic ingredients of demand and acceptance of the tainted currency notes have not established beyond reasonable doubts and the learned trial Court has rightly considered and appreciated the evidence led by the prosecution and has passed the impugned judgment and order of acquittal. In view of the settled position of law and the decision in the decisions of Ballu @ Balram @ Balmukund and Another (supra) and minute appraisal of the entire evidence produced by the prosecution, the reasons assigned by the learned Trial Court are just and proper and hence, this Court is of the considered opinion that the learned trial Court was completely justified in acquitting the accused of the charges leveled against them. The findings recorded by the learned trial Court are absolutely just and proper and no illegality or infirmity has been committed and this Court is in Page 23 of 24 Downloaded on : Fri May 03 21:24:06 IST 2024 NEUTRAL CITATION R/CR.A/648/2008 JUDGMENT DATED: 23/04/2024 undefined complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the learned Trial Court. 11] This Court finds no reason to interfere with the impugned judgment and order and the present appeal is devoid of merits and resultantly, the same is dismissed. The impugned judgment and order dated 15.06.2007 passed by the learned Special Judge, Porbandar in Special (ACB) Case No. 3 of 1999, is hereby confirmed. Bail bonds stand canceled. 12] Record and proceedings be sent back to the concerned Trial Court forthwith.
Sd/-
(S. V. PINTO,J) VVM Page 24 of 24 Downloaded on : Fri May 03 21:24:06 IST 2024