Gujarat High Court
Ajitsinh Devusinh Masani vs State Of ... on 15 July, 2016
Author: S.G.Shah
Bench: S.G.Shah
R/CR.A/910/2003 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 910 of 2003
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.G.SHAH
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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AJITSINH DEVUSINH MASANI....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
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Appearance:
MR KB ANANDJIWALA, ADVOCATE for the Appellant(s) No. 1
MR MANAN MEHTA, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE S.G.SHAH
Date : 15/07/2016
CAV JUDGMENT
The appellant has challenged the judgment and order dated 3/7/2003 rendered by the Addl. Sessions Judge, F.T.C. No. 3, Kheda at Page 1 of 15 HC-NIC Page 1 of 15 Created On Wed Jul 20 01:56:04 IST 2016 R/CR.A/910/2003 CAV JUDGMENT Nadiad in Special Case No. 7/1997. By such impugned judgment, the Sessions Judge has convicted the appellant and awarded sentence of rigorous imprisonment [RI] for two years and fine of Rs.10,000/- and in default of payment of fine, further RI for three months. Such conviction is for the offences punishable under sections 7, 13[1][c] and 13[2] of the Prevention of Corruption Act [for short 'PC Act'].
2 The sum and substance of the prosecution case is to the effect that the appellant, while discharging his duties as police constable at Kheda Police Station, demanded and accepted an amount of Rs.3,000/- as illegal gratification and bribe during his tenure as a public servant from the complainant for extending him benefit of non- harassment when the complainant was facing criminal proceedings. The prosecution case is to the effect that the appellant was investigating the complaint against the present complainant as well as his other brothers, therefore, he demanded illegal gratification from the complainant.
3 As usual, when the complainant has disclosed before the office of Anti Corruption Bureau [ACB] that the appellant had demanded bribe and he does not want to pay the same, the ACB office has initiated process of trap. The minute details of pre-arrangement of trap is now Page 2 of 15 HC-NIC Page 2 of 15 Created On Wed Jul 20 01:56:04 IST 2016 R/CR.A/910/2003 CAV JUDGMENT not much material to be discussed or reproduced repeatedly because it is well described in the impugned judgment. However, the fact remains that because of the complaint lodged by the complainant - Shanabhai Raisingbhai Vaghela, the ACB has arranged a trap, they found positive evidence so as to prosecute the appellant and, therefore, after the trap and investigation, charge-sheet was filed against the appellant alleging that on 27/1/1997 when the complainant had been to the police station, the appellant has asked for an amount of Rs.3,000/- and thereupon, after lodging the complaint and managing for the trap, when the complainant has approached the appellant on 29/1/1997 with the amount of bribe, the appellant has demanded and accepted such amount and thereby he has committed offence as alleged.
4 As against that, defence of the appellant, both before the trial Court as well as before this Court, is manifold viz. [1]There is material contradiction regarding admission and acceptance of amount of bribe, [2] Panchnama is not properly drawn and not properly proved and, therefore, there is no cogent and reliable evidence to prove commission of offence as alleged, [3] sanction is improper and thereby prosecution is initiated for want of appropriate and legal sanction, and [4] use of anthracene powder is not suitable to prove such cases and in Page 3 of 15 HC-NIC Page 3 of 15 Created On Wed Jul 20 01:56:04 IST 2016 R/CR.A/910/2003 CAV JUDGMENT the present case, when liquid used for confirmation of passing of tainted currency notes, has shown yellow color instead of pink color during examination of presence of such powder on the notes and other Muddamal, it is clear that anthracene powder was either not proper or it was not anthracene powder at all and, therefore, entire trap, raid and testing are improper.
5 In support of submissions, Ld. Advocate for the appellant is relying upon following two decisions :
[1] Ambalal Motibhai Patel v. State reported in 1960 [1] GLR 113 [2] Kalubhai Danabhai Patel v. The State of Gujarat reported in 2007 [1] G.L.H. 441
6 For consideration of all above points, scrutiny of evidence is material. The outcome of perusal of material evidence is recorded hereunder.
6.1 P.W. No. 1 at exh. 35 is complainant Shanabhai Raisingbhai Vaghela. He has deposed before the Court that he has some dispute regarding agricultural land with one Bharatsinh Solanki, who was cultivating his land which was mortgaged by his mother in favour of said Bharatsinh. However, when he approached Page 4 of 15 HC-NIC Page 4 of 15 Created On Wed Jul 20 01:56:04 IST 2016 R/CR.A/910/2003 CAV JUDGMENT Bharatsinh with his other brother and one police constable, Bharatsinh has refused to accept the amount and conveyed that on the contrary, he would pay Rs.3,000/- to Rs.5,000/- to him instead of accepting Rs.3,000/- to Rs.3,300/- if the complainant wants to enter into sale transaction with him. Said Bharatsinh has filed complaint against present complainant and his two brothers. It is also stated that civil litigation was going on between them for the same land and that complaint by Bharatsinh was being investigated by the present appellant, who has threatened the complainant that if the complainant and his brothers would not pay him money, then the appellant would put them behind the bar. It is further stated that therefore, the complainant has on one occasion paid Rs.2,000/- to the appellant and on second occasion Rs.3,000/-, but even thereafter, the appellant was harassing them and calling them frequently and thereafter, again demanded Rs.3,000/- conveying that then and then they will be produced before the Court [as accused in a complaint filed by Bharatsinh], conveying that he would first produce them before the PSI Mr. Agja and then before the Court. It is further submitted that on 27/1/1997 the appellant has again called the complainant and conveyed that he must pay Rs.3,000/- since it is on account with higher officers also and then and then he would produce the complainant before the Court. It is further stated that the complainant Page 5 of 15 HC-NIC Page 5 of 15 Created On Wed Jul 20 01:56:04 IST 2016 R/CR.A/910/2003 CAV JUDGMENT should pay Rs.3,000/- before evening of 29/1/1997. It is also stated that such amount is to be paid for not sending the complainant in the prison or to arrest him. Therefore, the complainant has lodged the complaint before the ACB.
7 Now in the background of above position regarding prior demand, in para 8 of the deposition, the complainant has come forward with a case that when they reached the Kheda Police Station so as to trap the appellant, it was conveyed to them by police constable Jivaji that the appellant has gone out and, therefore, they have waited there, in between, the appellant had come on scooter and thereupon, the complainant and Panch Witness No. 1 Vasava, who accompanied the complainant as per the arrangement, had approached the appellant in the police station. Now the point regarding material evidence has come so as to prove the actual demand, but the complainant has on the contrary, categorically deposed that instead of demanding money as bribe, the appellant has asked the complainant about his other brothers and thereupon practically it was complainant himself who conveyed to the appellant that he has brought the money as per previous talk and it is his say that thereafter, they sat across the table and he passed on tainted currency notes to the appellant, which appellant has accepted and put in his pocket. Thereupon, Page 6 of 15 HC-NIC Page 6 of 15 Created On Wed Jul 20 01:56:04 IST 2016 R/CR.A/910/2003 CAV JUDGMENT the complainant gave signal to the raiding party and raiding party has raided the place and it was found that there is presence of anthracene powder on the hands of the appellant, so also on the pocket of his T shirt. It is admitted position that during the raid and during the testing, when hands and clothes of the appellant were examined under ultra violet light, there was fluorescent yellow color marks and not blue color. Similarly, currency notes were examined under ultra violet lamp in darkness by closing doors of the room, thereupon fluorescent yellow mark was found on such notes, but not blue marks, which is normal result of such interaction.
8 Whereas during cross-examination, which is relied upon by the appellant, the witness - complainant has deposed that his statement was recorded after few days in ACB office at Nadiad. At that time, one officer Mr. Desai of Vadodara office was present, but when raid was conducted, nobody from ACB office, Nadiad was present and, therefore, he lodged the complaint with ACB office at Vadodara. Thereby, it is submitted that when raid was to be conducted by the police of Nadiad Police Station, complaint should be filed with ACB, Nadiad. Whereas it was lodged in the office of ACB at Vadodara and, therefore, investigating agency has no authority or jurisdiction to proceed further and thereby entire proceedings are vitiated.
Page 7 of 15HC-NIC Page 7 of 15 Created On Wed Jul 20 01:56:04 IST 2016 R/CR.A/910/2003 CAV JUDGMENT 9 So far as actual incident of raid is concerned, the complainant has admitted that there is civil dispute between him and Bharatsinh and therein order is against him though he has clarified that such order was ex-parte. However, the appellant has relied upon the admission regarding the dispute and intention of the complainant, that he wants possession of the land in question back from said Bharatsinh and that when the complainant and his brothers had tried to take away possession of the land forcefully from said Bharatsinh, Bharatsinh has filed a complaint and, therefore, Kheda Police had called all of them.
10 Whereas so far as evidence regarding commission of offence, which is under consideration at present is concerned, the complainant has categorically stated that the appellant was demanding amount saying that he has to pay some amount to PSI Mr. Agja also. To that extent, it is submitted that in that case, investigating agency should have inquired further regarding involvement of Mr. Agja and cross- examined PSI Mr. Agja. However, except such defence so far as incident of demand and acceptance of bribe is concerned, cross- examination does not rebut or prove anything contrary to the prosecution case, though he was cross-examined at length. In such lengthy cross-
Page 8 of 15HC-NIC Page 8 of 15 Created On Wed Jul 20 01:56:04 IST 2016 R/CR.A/910/2003 CAV JUDGMENT examination, an attempt was made to get admission from the complainant that the appellant has never demanded the bribe and that even though there was no passing of tainted notes or there was no possession of such tainted notes by the appellant, the complainant has alleged against the appellant as above. Several contradictions were also tried to be brought on record, but by and large the complainant has deposed in consonance with his complaint and the prosecution case and thereby except some technical issues, the evidence of the complainant is perfectly confirming the prior demand as well as demand at the time of raid, so also acceptance of tainted currency notes. The complainant has proved his complaint at exh. 36 and there is no contradiction from the version of complaint in his deposition.
11 Whereas, the prosecution has from the initiation of proceedings itself come with a case that when the presence of anthracene powder was examined by ultra violet lamp, there was yellow florescent marks seen by the complainant and the witnesses. Therefore, the appellant - accused has argued that when presence of anthracene powder was checked by ultra violet lamp, practically it would show blue florescent color and not yellow color and, therefore, proper test was not carried out at all.
Page 9 of 15HC-NIC Page 9 of 15 Created On Wed Jul 20 01:56:04 IST 2016 R/CR.A/910/2003 CAV JUDGMENT 12 If we examine the deposition of all the witnesses, it becomes clear that all the witnesses have deposed in categorical terms that when ultra violet light was thrown on the hands of the accused or at any place, then there was mark of florescent yellow color and not fluorescent blue color. There is no explanation by the prosecution regarding such part of evidence that why and how anthracene powder shows fluorescent yellow marks rather than fluorescent blue marks.
13 P.W. No. 2 at exh. 40 is a Panchwitness, namely Arvindbhai Chaturbhai Vasava, who is serving as In-charge Foreman in Electric Department of Vadodara Municipal Corporation. He must be conversant with the use of ultra violet light and result of anthracene powder. However, he also confirms that when ultra violet light was thrown on the places for confirmation of presence of anthracene powder on currency notes, they showed fluorescent yellow marks and not blue marks. Except such admission, he supports the case of the prosecution and deposed in confirmation of what he has stated in his statement before the police, so also in the Panchnama and proves the same.
14 Therefore, both these witnesses are practically confirming the prior demand as well as demand at the time of raid. However, in both Page 10 of 15 HC-NIC Page 10 of 15 Created On Wed Jul 20 01:56:04 IST 2016 R/CR.A/910/2003 CAV JUDGMENT the evidence, it becomes clear that the presence of anthracene powder on currency notes was examined and confirmed by noticing fluorescent yellow marks; whereas if anthracene powder is used, the presence of powder could be confirmed only if there is blue-fluorescent marks. Therefore, so far as acceptance and possession of tainted currency notes are concerned, the evidence is not in accordance with the requisite formula of such chemical substance to confirm its presence and to that extent, it would be difficult to ascertain and confirm that the tainted currency notes were in fact present as alleged by the complainant, so also by Panch witness.
15 Whereas P.W. No. 3 is Investigating Officer [IO] and, therefore, when he has lodged the FIR and investigated the offence and filed the charge-sheet, he has certainly deposed in confirmation with the complaint and charge-sheet. Similar is the situation with P.W. No. 4 at exh.
58. The Superintendent of Police [SP] has accorded sanction to prosecute the appellant. However, SP has categorically admitted that he has got draft sanction order and sanction letter issued by him, which is in verbatim with such draft, though he has stated that he has given dictation to his Stenographer. However, as SP, he has also not bothered to verify that why there is fluorescent yellow marks instead of fluorescent Page 11 of 15 HC-NIC Page 11 of 15 Created On Wed Jul 20 01:56:04 IST 2016 R/CR.A/910/2003 CAV JUDGMENT blue marks for confirming anthracene powder during the entire proceedings, which is also confirmed by P.W. No. 3 IO.
16 In light of above discussion, if we peruse the impugned judgment, it seems that the trial Court has mainly relied upon the prosecution evidence as it is without confirming from the prosecution that why presence of anthracene powder could not be confirmed by blue marks, which is the basic characteristic of such chemical. It is undisputed and admitted position that when presence of anthracene powder is checked, generally ultra violet light is thrown at the place and in presence of ultra violet rays, the anthracene powder shows blue fluorescent color or marks. Therefore, only because anthracene powder is capable to show yellow color when it is in bulk, if it is applied on currency notes or any other part, then generally it would not show yellow color. If yellow color is visible, then it would not be a positive test because otherside would immediately come to know about such currency notes being tainted and in any case, the reaction of ultra violet rays on anthracene powder would show blue- fluorescent light and not yellow marks. Therefore, practically though oral evidence is in favour of the prosecution, benefit of doubt needs to be extended to the accused on all different counts [1] improper test, [2] improper sanction Page 12 of 15 HC-NIC Page 12 of 15 Created On Wed Jul 20 01:56:04 IST 2016 R/CR.A/910/2003 CAV JUDGMENT procedure and [3] territorial jurisdiction.
16.1 It is also undisputed fact that though ACB Vadodara has no jurisdiction to lay trap in Kheda district, the entire proceedings were carried out by ACB, Vadodara and even the complainant has investigated the offence and filed charge-sheet.
16.2 It is also undisputed fact that the appellant is not the sole authority to help the complainant and when there is a reference that some amount is to be paid to PSI Mr. Agja, if at all there is any correction in the complaint and investigation, then there must be a statement and evidence of PSI Mr. Agja, who was in fact in- charge of the case against the complainant.
16.3 Similarly, so far as total amount of demand is concerned, there are several contradictions inasmuch as once the complainant says that Rs.2,000/- was already paid, but then again he says that the appellant has demanded Rs.3,000/-. It is also undisputed fact that there is necessity of the complainant to get rid of the complaint against them for which they want to trap police officer so that they may escape safely from such proceedings against them.
16.4 The trial Court has though in para 14 of the judgment, discussed about the discrepancy in Page 13 of 15 HC-NIC Page 13 of 15 Created On Wed Jul 20 01:56:04 IST 2016 R/CR.A/910/2003 CAV JUDGMENT the test of anthracene powder, failed to appreciate that it is the duty of the prosecution to prove its case beyond reasonable doubt and burdened the accused for such confirmation by saying that since there is no written evidence regarding characteristic of the anthracene powder. It would in fact go in favour of the accused rather than the complainant. The trial Court has also failed to appreciate the explanation of the accused that why he would have been trapped. In that case, it is the duty of the prosecution to rebut such explanation. However, prosecution has failed to do so.
17 Therefore, though the over-all oral evidence is supporting the story of prosecution, there is no cogent and reliable evidence to confirm the presence of anthracene powder, so also possession of tainted currency notes by the appellant - accused and when the appellant is able to show reason for involving him in such a case, benefit of doubt needs to be extended to the appellant. The appellant is also relying upon the following decisions :
[1] State of Madhya Pradesh v. Ram Singh reported in [2000] 5 SCC 88 [2] Judgment rendered in the case of Tarachand Jethabhai Chauhan v. State of Gujarat in Criminal Appeal No. 2753/2008 dated 6/6/2016 Page 14 of 15 HC-NIC Page 14 of 15 Created On Wed Jul 20 01:56:04 IST 2016 R/CR.A/910/2003 CAV JUDGMENT [3] Ravindranath Maganbhai Prajapati v. State of Gujarat reported in 2014 [0] AIJ-GJ 987.
18 In view of above facts and circumstances, when there is no cogent and reliable evidence regarding presence of tainted currency notes with the appellant - accused, I have no reason but to quash and set aside the impugned judgment and order of conviction. Therefore, appeal is allowed. Thereby, the impugned judgment and order dated 3/7/2003 rendered in Special Case No. 7/1997 by the Ld. Addl. Sessions Judge, FTC 3, Kheda at Nadiad, is quashed and set aside. Since the appellant is on bail, his bail bond shall stand cancelled.
(S.G.SHAH, J.) * Pansala Page 15 of 15 HC-NIC Page 15 of 15 Created On Wed Jul 20 01:56:04 IST 2016