Delhi District Court
Cbi vs Zahoor Alam on 18 December, 2007
1 IN THE COURT OF SH. G P MITTAL SPECIAL JUDGE DELHI CBI VS Zahoor Alam R C NO. 50 (A)/99/CBI/ACB/N.Delhi C C No. 68/04 JUDGMENT
Accused Zahoor Alam has been sent to this court to face trial for the offence punishable U/s 8 of the Prevention of Corruption Act on the allegations that he had accepted illegal gratification of Rs. 250/- from one Deepak Mansa Ramani as a motive or reward for inducing by corrupt or illegal means, a public servant of the Regional Passport Office to get the passport of Deepak Mansa Ramani issued at an early date.
2 On 18.10.99 a reliable information was received by Inspector Vivek Dhir of CBI that a large number of touts were actively functioning in an around Regional Passport Office, Bhikaji Cama Place, New Delhi. They were charging illegal gratification in connivance with the staff working at various counters in the office of RPO for getting the work relating to the passport done at an early date 2 and without any objection being raised by the official of the passport office. Inspector Vivek Dhir constituted a trap team consisting of CBI Officers S/Sh. Pawan Kumar, C K Sharma, A K Malik, Yashvir Singh, Om Parkash, A K Singh and Surender Malik. Three independent witnesses s/Sh.Vikas Chand, Ram Chander and Bahori Singh who were working with Northern Railways were also joined. The CBI team reached Regional Passport Office and a close watch was kept over the activities of the suspected touts for about half an hour. The trap team noticed that some suspected touts were telling the applicants that they are required to pay Rs. 50/ per application to the passport officials. The members of the raiding party including independent witnesses were instructed to identify the touts and also to keep a watch over applicants who might be seen by them being fleeced by the touts.
3 A small team consisting of Inspectors Yashvir Singh, A K Singh, Om Parkash, Surender Malik and Vivek Dhir carried out a surprise check at the counters of the RPO office. A sum of Rs. 50/- , Rs 100/- and R. 300/- were found in excess at counter No.16, 18 and 19 respectively. Two applicants Sh. R C Rajpal (and his son Sanjay Rajpal) and Sh. Ved Parkash were found to have paid illegal gratification to Tarun Garg and Krishan Kumar respectively. After observing the activities of the touts, five persons including accused 3 Zahoor Alam were apprehended. A sum of Rs. 500/- was recovered from one Tarun Garg and Rs. 450/- from Sh. Krishan Kumar which was allegedly paid by Sh. R C Rajpal and Sh. Ved Parkash respectively. Some incriminating documents were also recovered from accused Zahoor Alam and other touts which were seized vide a seizure memo prepared at the spot. During the course of investigation it was found that Zahoor Alam had neither been permitted nor authorised todo the passport work. It was also revealed that accused Zahoor Alam had obtained illegal gratification from Sh. Deepak Mansa Ramani, Sh. Surjeet Chopra and Smt. Geeta Chopra in addition to the prescribed fees and the service charges for getting their work done from the officials of the Regional Passport Office. Thus, a charge sheet for the offence punishable U/s 8 of the Act was filed against the accused.
4 A charge for the offence punishable U/s 8 of the PC was framed against the accused vide order dated 15.3.03. The accused pleaded not guilty to the charge whereupon the prosecution was required to produce its evidence.
5 In order to establish its case the prosecution has examined as many as seven witnesses.
46 PW 1 Inspector Vivek Dhir was the leader of the raiding party which had watched the conduct of the accused and four other persons who were allegedly arrested at the spot. With regard to accused Zahoor Alam, the witness identified the Surprise Check Memo as Ex PW1/A. During cross examination the witness stated that he did not know if some persons had helped the applicants by filling the forms themselves on behalf of the applicants. He showed his ignorance if any action was taken against the counter clerk who were found in possession of the excess cash.
7 PW2 Sh. Vikas Chand is one of the independent witnesses who was the member of the raiding party. He deposed that CBI officers had kept a watch outside the passport office. They caught hold of some persons who were later arrested. He proved the surprise check memo as Ex PW1/A and the personal search memo as Ex PW2/C. The witness was allowed to be cross examined by the Ld. Sr. PP. The witness deposed during the cross examination by the Public Prosecutor that he had not heard or seen the touts collecting money or passports from several persons and telling those persons that if the application is not filed through them the same shall be rejected. Nothing has come in the examination or cross examination of this witness except that accused Zahoor Alam was arrested in presence of this witness. To the same effect is the testimony of PW3 Bahori Singh.
5During cross examination by the Ld. Public Prosecutor the witness admitted that suspected touts were over heard telling the applicants that they were required to pay Rs. 50/- to the passport officials.
8 PW4 Sh. Ram Chander is the third independent witness. He stated that two teams had been formed by the CBI Officer. He was part of the team which remained outside the passport office. They were three inspectors of the CBI in his team. He deposed that some persons were roaming outside the passport office and were taking application forms for issuance of passport and Rs. 50/- per person etc. for getting the passport prepared urgently.
9 PW5 Sh. S N Nagar was working as Superintendent in Regional Passport Office, R K Puram, New Delhi at the relevant time in the year 1999. He gave the price of the passport application form to be Rs. 10/- and the fee for issuance of passport for 10 years as Rs. 300/- and fee for issuance for passport for 20 years as Rs. 600/-. He stated that the accused was not an authorised agent of the Regional Passport Office, New Delhi.
10 PW 6 Sh. Deepak Mansa Ramai had deposed about deposit 6 of Passport application form in the year July, 1999. He stated that he stood in the queue for deposit of his application form. In the meanwhile he received a call from his residence that his mother was sick. He made enquiries from the persons sitting outside the office if they could get a passport issued to him. He was asked to pay Rs. 300/- as fee for issuance of the passport and was further asked to pay Rs.250/- by the said person. The said person also told him that certain amount has to be paid to the official of the passport office for getting the passport issued faster. He stated that accused Zahoor Alam may be the person to whom he handed over Rs. 300/- and the application form. The witness was allowed to be cross examined by Ld. Sr. PP. the witness denied having handed over a sum of Rs. 250/- in addition to the passport fee to accused Zahoor Alam.
11 PW7 SI M M Ansari is the IO of the case. He deposed that he had correctly recorded the statement of PW2 Vikas Chand, PW3 Deepak Mool chandani, Bahori Singh. He proved the FIR to be signed by the SP CBI, Ex PW7/A. During cross examination he admitted that he was not the member of the raiding party and the proceedings of the raid, apprehension of the suspects and preparation of Memos had not taken place in his presence.
712 On close of evidence of the prosecution the accused was examined U/s 313 Cr PC. The accused denied that Rs. 50/- were being demanded extra by the touts outside the Regional passport office. He admitted that the touts were not authorised to collect the forms or to deposit the same in the Regional Passport Office. The accused took up the plea that he was a graduate engaged in the Trading of rice. He used to help illiterate people who had come to him for advice for going to Haj. He used to fill up the passport forms and other documents and advice the people coming to the Passport Office, free of cost. He had never acted as a tout nor had ever demanded any illegal gratification to be paid to any Govt. official. He stated that his signatures were obtained by the CBI officer on some blank papers and was falsely implicated in the case.
13 I have heard Sh. Akhilesh, Ld. Sr PP for CBI and Sh. Mukul Sharma, Advocate, Ld. Counsel for the accused and have perused the record.
14 In order to establish its case, the prosecution is required to prove that the accused had accepted, obtained or had agreed to accept or had attempted to obtain any gratification either for himself or for any other person as a motive or reward for inducing any public servant 8 to do or forbear to do any official act etc. 15 The most important witness in this case is PW 6 Sh. Deepak Mansa Ramani. This witness had not handed over any documents or any money to accused Zahoor Alam on 18.10.99 at the time of the raid by the CBI Team. As per PW6 he had deposited his application for issuance of a new passport in July, 1999. At the time of the raid and apprehension of the accused a number of documents such as two cancelled passports, some passport applications duly filled, one visiting card of accused Zahoor Alam, some passport cash memo receipts, some blank application forms, some affidavits etc. were recovered from him which were taken into possession by the CBI Officer vide memo Ex PW2/D. Out of the recovered documents there is one old passport in the name of Sh. Deepak Mansa Ramani. No evidence has been produced by the prosecution as to how the CBI reached PW Deepak Mansa Ramani. It may however, be noted that during his statement as PW6 Deepak Mansa Ramani had proved that Ex P1 was his old passport. Therefore, it may be inferred that the CBI might have reached PW6 Deepak Mansa Ramani on the basis of his old passport. PW6 however, had stated that he had paid a sum of Rs. 300/- only to the person who could be accused Zahoor Alam as the fee for renewal of the passport. This witness had also stated in his examination in chief that the said person had told him that he would 9 be required to pay a further sum of Rs. 250/- and out of the said sum certain amount had to be paid to the officials of the passport office for getting the passport issued faster. Since the witness had not supported the case of the prosecution fully and had resiled from his statement U/s 161 Cr PC he was permitted to be cross examined by the Ld. Public Prosecutor. PW6 stated, during his cross examination by the Ld. Public Prosecutor, that in all probability he had not paid a sum of Rs. 250/- in addition to the fee for issuance of the passport to accused Zahoor Alam. Though, this witness admitted during his cross examination by the Ld. PP that accused Zahoor Alam had told him that Rs. 100/- would be his expenses and rest of the money was to be paid to the officials of the passport department. However, since no reliable evidence has been produced by the prosecution to show that any sum in addition to the fee of Rs. 300/- was paid by PW6 to accused Zahoor Alam it would be difficult to conclude that the accused Zahoor Alam had accepted any illegal gratification as a motive or reward for inducting by corrupt or illegal means any public servant whether named or otherwise to do or to forbear to do any official act or to show any favour or disfavour to any person etc. In Devan @ Vasudevan Vs. The State, 1988 Crl. Law Journal 1005, while dealing with an offence U/s 162 IPC it was held by the Hon'ble Kerala High Court that the accused must have animus at the time of receiving gratification to induce public servant by corrupt or illegal means. No reliable evidence has been produced by the prosecution 10 which could suggest that any gratification was paid or was accepted by accused Zahoor Alam and thus, there was no question of inducing public servant by corrupt or illegal means to do or forbear to do any act in the discharge of official duty of the public servant.
16 The prosecution has produced some circumstantial evidence i.e. that some persons found present outside the office of Regional Passport Office were heard saying that Rs. 50/- was to be paid as illegal gratification to the staff of RPO and at the time of apprehension of the accused some documents as mentioned in Ex PW2/D including the old passport of PW6 Deepak Mansa Ramani were recovered from him. These circumstances however, cannot lead the court to draw an inference that accused Zahoor Alam had received any illegal gratification as a motive or reward for inducing any public servant by corrupt or illegal means. The law with regard to circumstantial evidence is very well settled. Where a case rests only on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused and should point to only one hypothesis i e the guilt of the accused. In the instant case, the above circumstances cannot lead the court to believe that the accused had accepted any illegal gratification for himself or for any other person as a motive or reward for inducing by corrupt or illegal 11 means any public servant to do for to forbear to do any official act. The accused is acquitted giving him benefit of doubt.
File be consigned to record room.
Announced in Open Court (G P MITTAL) Today on 18th December, 2007 SPECIAL JUDGE: DELHI