Gujarat High Court
State Of Gujarat vs Virambhai Haribhai Desai on 18 July, 2024
NEUTRAL CITATION
R/CR.A/2544/2005 JUDGMENT DATED: 18/07/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 2544 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO Sd/-
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1 Whether Reporters of Local Papers may be allowed to see the Yes
judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as to the No
interpretation of the Constitution of India or any order made
thereunder ?
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STATE OF GUJARAT
Versus
VIRAMBHAI HARIBHAI DESAI
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Appearance:
MS CM SHAH, APP for the Appellant(s) No. 1
MR RUSHABH R SHAH(5314) for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 18/07/2024
ORAL JUDGMENT
1. This appeal has been filed by the appellant - State under Section 378(1)(3) of the Code of Criminal Procedure, 1973 (herein after referred to as 'the Code') against the judgment Page 1 of 28 Downloaded on : Fri Aug 09 21:03:55 IST 2024 NEUTRAL CITATION R/CR.A/2544/2005 JUDGMENT DATED: 18/07/2024 undefined and order of acquittal dated 26.04.2005 passed by the learned Special Judge (ACB), Fast Track Court No.3, Gandhinagar (herein after referred to as 'the learned Trial Court') in Special ACB Case No. 4 of 1999, whereby, the learned Trial Court has acquitted the respondent from the offences punishable under Sections 13(1)(d) and 13(2) of the Prevention of Corruption Act (herein after referred to as 'the P.C.Act'). The respondent is hereinafter referred to as 'the accused' as he 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. The accused was a Head Constable Buckle No. 156 in the Traffic Branch at Gandhinagar and was a public servant.
That the complainant Police Inspector K.K.Mysorewala, ACB Police Station, Ahmedabad (Rural) and District Gandhingar has received secret information that the Traffic Police, RTO Employees and Home Guards were halting heavy vehicles in the Gandhinagar area and demanding illegal gratification of Page 2 of 28 Downloaded on : Fri Aug 09 21:03:55 IST 2024 NEUTRAL CITATION R/CR.A/2544/2005 JUDGMENT DATED: 18/07/2024 undefined the amount ranging from Rs.20/- to Rs.300/- and to verify the same, the complainant arranged for a decoy trap. That the complainant along with the members of the raiding party went towards Gandhinagar in the Government vehicle and took along with them two panch witnesses and reached Adalaj Cross Road at 16:45 hours and they waited for the heavy vehicles to pass by. That one truck bearing No.RSY- 5761 coming from Sarkhej towards Adalaj was halted and driver Jivanlal Taili, resident of Sevashram, Nr. Railway Station, Udaipur, Rajasthan was explained about the secret information and decoy trap to be arranged and he accorded to cooperate in the trap. That the complainant had taken Rs.300/- from the Government money and the experiment and demonstration of anthracene powder and ultraviolet lamp was carried out in the presence of the decoy driver and the panch witnesses and the characteristic of anthracene powder and ultraviolet lamp was explained to them. That the currency notes of Rs.300/- smeared with anthracene powder were placed in the left side shirt pocket of the decoy driver and the panch witness No.1 and the other members of Page 3 of 28 Downloaded on : Fri Aug 09 21:03:55 IST 2024 NEUTRAL CITATION R/CR.A/2544/2005 JUDGMENT DATED: 18/07/2024 undefined the raiding party sat in the cabin of the truck near the driver. That the panch witness No.2 and other members of the raiding party followed them in the Government Vehicle. That when the truck came towards Gandhinagar, it was stopped at Indroda Circle by the Traffic Police and the decoy driver Jivanlal Taili took the truck to one side and the Traffic Police asked for a diary, which was given by the driver and the Traffic Police wrote some numbers and words and gave the diary back to the decoy driver. That the decoy driver took one tainted currency note of the denomination of Rs.50/- and gave it to the Traffic Police and asked the driver from which place the passengers were taken and before the driver could reply, the Traffic Police took the tainted currency note of Rs.50/- and went behind the truck. That the driver blew the horn, which was pre-determined signal and the members of the raiding party and the panch witnesses got down from the truck and the Government vehicle and caught the accused red handed. That he was immediately taken in the Government vehicle and searched and the panchnama was drawn and the tainted currency note was Page 4 of 28 Downloaded on : Fri Aug 09 21:03:55 IST 2024 NEUTRAL CITATION R/CR.A/2544/2005 JUDGMENT DATED: 18/07/2024 undefined found in the right hand of the accused. That a complaint was filed by the complainant on 25.02.1999 at about 23:15 hours at the ACB Police Station, Ahmedabad (Rural) and District Gandhinagar, which was registered as C.R.No. 4 of 1999. 2.2. The Investigating Officer recorded the statement of the connected witnesses and after the necessary documents including the service record and the order of sanction for prosecution was received, a charge sheet came to be filed before the learned Sessions Court, Gandhinagar which was registered as Special ACB Case No. 4 of 1999. 2.3. That the accused was summoned and after following the procedure of Section 207 of the Code, a charge was framed by the learned Trial Court at Exh.6 and the statement of the accused was recorded at Exh.7, wherein, the accused denied all the contents of the charge and the entire evidence of the prosecution was taken on record. The prosecution has produced the following oral as well as documentary evidences in support of the case.
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Sr.No. Particulars Exh. 1 Janakrai Jayantilal Brahmbhatt 9 2 Natwarbhai Koyabhai Solanki 14 3 Kerman Khurshi Mysorewala 18 4 Shankarbhai Khatubhai Parmar 23 5 Jivalal Ganeshlal Taili 25 DOCUMENTARY EVIDENCE : Sr.No. Particulars Exh. 1 Complaint 19 2 Panchanama 10 3 Seizure Memo 12 4 Receipt regarding the muddamal seized from driver 11 Jivanlal Ganeshlal 5 Order of sanction for prosecution 25 2.4 After the closing pursis was submitted by the learned APP at
Exh.25, the further statement of the accused under Section 313 of the Code of Criminal Procedure was recorded and the arguments of the learned APP and learned advocate for the accused were heard and the learned Trial Court, by the impugned judgment and order dated 26.04.2005, was pleased to acquit the accused for the offences punishable under Sections 13(2) and 13(1)(d) of the P.C.Act. Page 6 of 28 Downloaded on : Fri Aug 09 21:03:55 IST 2024
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3. Being aggrieved and dissatisfied with the impugned judgment and order passed learned Trial Court, the accused has filed the present appeal mainly contending that the impugned judgment and order of acquittal is illegal, improper, unjust and without considering the material on record. That the learned Trial Court has erred in appreciating the evidence produced by the prosecution on record of the case. That the learned Trial Court has not appreciated that the Investigating Officer has followed the due procedure before setting up the trap and the learned Trial Court has not appreciated that the trap was successful. That the tainted currency notes were smeared with anthracene powder and the panch witness has fully supported the case of the prosecution and has stood his ground in the cross- examination in support of the prosecution. That the learned Trial Court has not appreciated that there was demand of money which was not within the scope of the duty of the respondent and the impugned judgment and order of acquittal is improper, perverse and bad in law and is required to be quashed and set aside.
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4. Heard learned APP Ms.C.M.Shah for the appellant - State and learned advocate Mr.Rushabh Shah for the respondent. Perused the impugned judgment and order and have re- appreciated the entire evidence of the prosecution on record of the case.
5. Learned APP Ms.C.M.Shah has taken this Court though the evidence and has submitted that the decoy driver and the panch witness have turned hostile and have not fully supported the case of the prosecution. It is a settled law that the portion of evidence of the witness which supports the case of the prosecution can be considered and it is proved that the decoy was asked to cooperate and he had given the tainted currency note to the respondent. That the prosecution has proved the offence against the respondent from the evidence of the Trap Laying Officer but the learned Trial Court has not fully appreciated the entire evidence in proper perspective and learned APP has urged this Court to allow the appeal and to sat aside the impugned judgment and order of acquittal and find the respondent guilty for the Page 8 of 28 Downloaded on : Fri Aug 09 21:03:55 IST 2024 NEUTRAL CITATION R/CR.A/2544/2005 JUDGMENT DATED: 18/07/2024 undefined said offences.
6. Learned advocate Mr.Rushabh Shah for the respondent has submitted that the decoy and the panch witness examined before the learned Trial Court by the prosecution have turned hostile. The prosecution has not proved that the respondent had demanded for any amount of illegal gratification. That it is also on record that the Investigating officer PW-4 Shankarbhai Khatubhai Parmar was a member of the raiding party and it appears that the Trap Laying Officer and the Investigating Officer had made all efforts to ensure that a false case filed on the respondent was successful. That the learned Trial Court has appreciated the entire evidence and has discussed each and every aspects of the evidences properly and has acquitted the respondent in a well reasoned judgment and order and no interference is required in the impugned judgment and order and learned advocate for the accused has urged this Court to reject the appeal filed by the appellant - State.
7. At the outset, before discussing the facts of the present case, Page 9 of 28 Downloaded on : Fri Aug 09 21:03:55 IST 2024 NEUTRAL CITATION R/CR.A/2544/2005 JUDGMENT DATED: 18/07/2024 undefined it would be appropriate to refer to the observations of the Apex Court in the case of Mallappa & Ors. Vs. State of Karnataka passed in Criminal Appeal No.1162 of 2011 on 12.02.2024, wherein, the Apex Court has observed in Para Nos. 24 to 26, as under:
"24. We may firstly discuss the position of law regarding the scope of intervention in a criminal appeal. For, that is the foundation of this challenge. It is the cardinal principle of criminal jurisprudence that there is a presumption of innocence in favour of the accused, unless proven guilty. The presumption continues at all stages of the trial and finally culminates into a fact when the case ends in acquittal. The presumption of innocence gets concretized when the case ends in acquittal. It is so because once the Trial Court, on appreciation of the evidence on record, finds that the accused was not guilty, the presumption gets strengthened and a higher threshold is expected to rebut the same in appeal.
25. No doubt, an order of acquittal is open to appeal and there is no quarrel about that. It is also beyond doubt that in the exercise of appellate powers, there is no inhibition on the High Court to re-appreciate or re-visit the evidence on record. However, the power of the High Court to re- appreciate the evidence is a qualified power, especially when the order under challenge is of acquittal. The first and foremost question to be asked is whether the Trial Court thoroughly appreciated the evidence on record and gave due consideration to all material pieces of evidence. The second point for consideration is whether the finding of the Trial Court is illegal or affected by an error of law or fact. If not, the third consideration is whether the view taken by the Trial Court is a fairly possible view. A decision of acquittal is not meant to be reversed on a mere difference of opinion. What is required is an illegality or perversity.
26. It may be noted that the possibility of two views in a Page 10 of 28 Downloaded on : Fri Aug 09 21:03:55 IST 2024 NEUTRAL CITATION R/CR.A/2544/2005 JUDGMENT DATED: 18/07/2024 undefined criminal case is not an extraordinary phenomenon. The 'two-views theory' has been judicially recognized by the Courts and it comes into play when the appreciation of evidence results into two equally plausible views. However, the controversy is to be resolved in favour of the accused. For, the very existence of an equally plausible view in favour of innocence of the accused is in itself a reasonable doubt in the case of the prosecution. Moreover, it reinforces the presumption of innocence. And therefore, when two views are possible, following the one in favour of innocence of the accused is the safest course of action. Furthermore, it is also sattled that if the view of the Trial Court, in a case of acquittal, is a plausible view, it is not open for the High Court to convict the accused by reappreciating the evidence. If such a course is permissible, it would make it practically impossible to sattle the rights and liabilities in the eyes of law. In Selvaraj v. State of Karnataka,
"13. Considering the reasons given by the trial court and on appraisal of the evidence, in our considered view, the view taken by the trial court was a possible one. Thus, the High Court should not have interfered with the judgment of acquittal. This Court in Jagan M. Seshadri v. State of T.N. [(2002) 9 SCC 639] has laid down that as the appreciation of evidence made by the trial court while recording the acquittal is a reasonable view, it is not permissible to interfere in appeal. The duty of the High Court while reversing the acquittal has been dealt with by this Court, thus:
"9. ...We are constrained to observe that the High Court was dealing with an appeal against acquittal. It was required to deal with various grounds on which acquittal had been based and to dispel those grounds. It has not done so. Salutary principles while dealing with appeal against acquittal have been overlooked by the High Court. If the appreciation of evidence by the trial court did not suffer from any flaw, as indeed none has been pointed out in the impugned judgment, the order of acquittal could not have been sat aside. The view taken by the learned trial court was a Page 11 of 28 Downloaded on : Fri Aug 09 21:03:55 IST 2024 NEUTRAL CITATION R/CR.A/2544/2005 JUDGMENT DATED: 18/07/2024 undefined reasonable view and even if by any stretch of imagination, it could be said that another view was possible, that was not a ground sound enough to sat aside an order of acquittal."" (emphasis supplied) In Sanjeev v. State of H.P., the Hon'ble Supreme Court analyzed the relevant decisions and summarized the approach of the appellate Court while deciding an appeal from the order of acquittal. It observed thus:
"7. It is well settled that:
7.1. While dealing with an appeal against acquittal, the reasons which had weighed with the trial court in acquitting the accused must be dealt with, in case the appellate court is of the view that the acquittal rendered by the trial court deserves to be upturned (see Vijay Mohan Singh v. State of Karnataka5, Anwar Ali v. State of H.P.) 7.2. With an order of acquittal by the trial court, the normal presumption of innocence in a criminal matter gets reinforced (see Atley v. State of U.P.) 7.3. If two views are possible from the evidence on record, the appellate court must be extremely slow in interfering with the appeal against acquittal (see Sambasivan v. State of Kerala)."
7.2. In Para - 36, the Apex Court, in the case of Mallappa (Supra), has observed as under:
"36. Our criminal jurisprudence is essentially based on the promise that no innocent shall be condemned as guilty. All the safeguards and the jurisprudential values of criminal law, are intended to prevent any failure of justice. The principles which come into play while deciding an appeal from acquittal could be summarized as:
(i) Appreciation of evidence is the core element of a Page 12 of 28 Downloaded on : Fri Aug 09 21:03:55 IST 2024 NEUTRAL CITATION R/CR.A/2544/2005 JUDGMENT DATED: 18/07/2024 undefined criminal trial and such appreciation must be comprehensive - inclusive of all evidence, oral or documentary;
(ii) Partial or selective appreciation of evidence may result in a miscarriage of justice and is in itself a ground of challenge;
(iii) If the Court, after appreciation of evidence, finds that two views are possible, the one in favour of the accused shall ordinarily be followed;
(iv) If the view of the Trial Court is a legally plausible view, mere possibility of a contrary view shall not justify the reversal of acquittal;
(v) If the appellate Court is inclined to reverse the acquittal in appeal on a re-appreciation of evidence, it must specifically address all the reasons given by the Trial Court for acquittal and must cover all the facts;
(vi) In a case of reversal from acquittal to conviction, the appellate Court must demonstrate an illegality, perversity or error of law or fact in the decision of the Trial Court.
7.3. The Apex Court, in the case of Neeraj Dutta Vs. State (Govt.
of N.C.T. of Delhi) reported in 2022 0 Supreme (SC) 1248, has observed in Para No. 68, which reads as under:
"68. What emerges from the aforesaid discussion is summarised as under:
(a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13 (1)(d) (i) and(ii) of the Act.Page 13 of 28 Downloaded on : Fri Aug 09 21:03:55 IST 2024
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(b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence.
(c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence.
(d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind:
(i) if there is an offer to pay by the bribe giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant.
(ii) On the other hand, if the public servant makes a demand and the bribe giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Section 13 (1)(d)(i) and
(ii) of the Act.
(iii) In both cases of (i) and (ii) above, the offer by the bribe giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an Page 14 of 28 Downloaded on : Fri Aug 09 21:03:55 IST 2024 NEUTRAL CITATION R/CR.A/2544/2005 JUDGMENT DATED: 18/07/2024 undefined offence under Section 7 or Section 13 (1)
(d), (i) and (ii) respectively of the Act.
Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe giver and inturn there is a payment made which is received by the public servant, would be an offence of obtainment under Section 13 (1)(d) and
(i) and (ii) of the Act.
(e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the Court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands.
(f) In the event the complainant turns 'hostile', or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant.
(g) In so far as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised Page 15 of 28 Downloaded on : Fri Aug 09 21:03:55 IST 2024 NEUTRAL CITATION R/CR.A/2544/2005 JUDGMENT DATED: 18/07/2024 undefined by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Section 13 (1) (d) (i) and (ii) of the Act.
(h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in point
(e) as the former is a mandatory presumption while the latter is discretionary in nature."
8. The law with regard to the acquittal appeals is well crystallize and it is settled principles of law that in acquittal appeals, the Appellate Court can re-appreciate the evidence and only if the findings of acquittal are perverse or impossible the Appellate Court can interfere but if it is found that the view taken by the learned Trial Court is possible then the Appellate Court should not interfere with the same. That there is no absolute restriction on the Appellate Court regarding interference but the entire evidence must be reviewed and re-appreciated.
9. To bring home the charge against the accused, the prosecution has examined PW-1 Janakrai Jayantilal Brahmbhatt at Exh.9 and the witness is the panch witness, who has stated that on 25.02.1999, he and the other panch Page 16 of 28 Downloaded on : Fri Aug 09 21:03:55 IST 2024 NEUTRAL CITATION R/CR.A/2544/2005 JUDGMENT DATED: 18/07/2024 undefined witness Natubhai K. Solanki were called by Police Inspector K.K.Mysorewala at the ACB office. That they had gone in the jeep from Adalaj Over Bridge towards Kalol and they were informed that Police Inspector K.K.Mysorewala had a secret information that RTO Inspectors Traffic Police and Home Guards were demanding the amount of illegal gratification ranging from the amount of Rs.20/- to Rs.300/- and a decoy trap was to be arranged. That one truck was halted and the truck driver was coming from Morbi and going towards Udaipur, Rajasthan. That the truck driver was asked his name and he said that he was Jivanlal Taili, resident of Sevashram, near Railway Station, Udaipur, Rajasthan and he accorded to be a decoy. That Police Inspector K.K.Mysorewala took two currency notes of denomination of Rs.100/- and two currency notes of denomination of Rs.50/- and showed the numbers on the currency notes to the truck driver but the witness did not see the numbers on the currency notes. That he does not know whether any writing work was done and the currency notes were smeared with some powder by the constable and the powder was Page 17 of 28 Downloaded on : Fri Aug 09 21:03:55 IST 2024 NEUTRAL CITATION R/CR.A/2544/2005 JUDGMENT DATED: 18/07/2024 undefined anthracene powder but no information was given to them and the hands of staff were shown in the battery light. That he does not remember whether any procedure was done and the currency notes were placed in the left side shirt pocket of the driver. That necessary instructions were given and the witness sat in the truck behind the truck driver and Police Inspector K.K.Mysorewala sat beside him and Police Inspector Parmar was also in the truck. That the members of the raiding party and the other panch witness followed in the jeep and when the truck had reached Indroda Circle, the Traffic Police halted the truck and there were two traffic police with uniform and they asked the driver from where the truck was coming and where were the passengers seated from. That the Traffic Police did not say anything and did not demand any diary but the truck driver gave the diary to the Traffic Police and the Traffic Police returned the diary to the driver. That everyone got down and Police Inspector K.K.Mysorewala caught the Traffic Police. That he does not know why Police Inspector K.K.Mysorewala caught the hands of the Traffic Police but it was because of the diary Page 18 of 28 Downloaded on : Fri Aug 09 21:03:55 IST 2024 NEUTRAL CITATION R/CR.A/2544/2005 JUDGMENT DATED: 18/07/2024 undefined which was given and taken. That the money was recovered from the shirt pocket of the driver and the panchnama was written by the ACB Officer. That the truck driver did not give any amount in his presence and no currency notes with anthracene powder were seized in his presence by the ACB Police Officials. The witness has not supported the case of the prosecution and has been declared hostile and during the cross-examination by the learned advocate for the accused, the witness has stated that he was not shown that the currency notes were in the hands of the accused and the test that was conducted on the hands of the driver was not conducted on the hands of the accused. That no seizure memo was given to the accused at the place of the trap and his signature was taken on a blank paper. 9.1. The prosecution has examined PW-2 Natwarbhai Koyabhai Solanki at Exh.14 and the panch witness is the other panch witness, who was along with the members of the raiding party on the day of the trap. The witness has stated that on 25.02.1999, ACB officer K.K.Mysorewala called him to be a Page 19 of 28 Downloaded on : Fri Aug 09 21:03:55 IST 2024 NEUTRAL CITATION R/CR.A/2544/2005 JUDGMENT DATED: 18/07/2024 undefined panch witness and he had gone in the Government vehicle to Adalaj Cross Road and his colleague Janakbhai Brahmbhatt was also with him. That they were informed that Home Guards, Traffic Police and City Police etc. were taking the amount of illegal gratification from the drivers of heavy vehicles in the name of entry fee ranging from the amount of Rs.20/- to Rs.300/- and one truck coming from Ahmedabad side, which was coming from Morbi was halted. That the driver was Jivanlal Taili and he was asked to cooperate and he accorded to cooperate. Police Officer K.K.Mysorewala gave Rs.300/- but he does not know the denomination of the currency notes. That the panchnama was written and the driver was searched and thereafter, ACB official Mr.Soni had removed anthracene powder from the suit-case and characteristic of anthracene powder and ultraviolet lamp was explained to them. That a demonstration of anthracene powder and ultraviolet lamp was done and the currency notes were placed in the left side shirt pocket of the decoy driver. That he does not remember what instructions were given to the panch witness No.1 and he sat in the jeep along Page 20 of 28 Downloaded on : Fri Aug 09 21:03:55 IST 2024 NEUTRAL CITATION R/CR.A/2544/2005 JUDGMENT DATED: 18/07/2024 undefined with the jeep driver Mr. Soni the other members of the raiding party sat in the truck. That he does not remember what procedure was done and whether he had signed the panchnama or whether panch the witness No.1 had signed the panchnama and has stated that the signature was taken at Pathikashram, Gandhinagar. That from Indroda Circle, they came to Pathikashram and the jeep, in which, he was sitting, was at the distance away from the truck. That he had taken the amount from the pocket of the truck driver Jivanlal Taili but he does not remember the denomination of the currency notes. That witness has not supported the case of the prosecution and has been declared hostile and during the cross examination by the learned advocate for the accused, the witness has stated that he was not sitting in the truck and he does not remember what had taken place near the truck. That one horn was heard and the truck was not seen and at Pathikashram, the ACB officers were in the room and he was outside in the lobby and does not know what procedure was undertaken in the room. That the entire procedure was done inside the room and the panchnama was also written inside Page 21 of 28 Downloaded on : Fri Aug 09 21:03:55 IST 2024 NEUTRAL CITATION R/CR.A/2544/2005 JUDGMENT DATED: 18/07/2024 undefined the room. That the panchnama was not read over to him and he had affixed his signature outside the room. 9.2. The prosecution has examined PW-3 Kherman Khurshid Mysorewala and the witness was the complainant and the Trap Laying Officer, who has fully supported the case of the prosecution and has narrated in detail the entire incidents that had taken place when he had got secret and concrete information on 01.08.1998 and thereafter, the decoy trap that was arranged on 25.02.1999 till the trap was successful. During the cross-examination by the learned advocate for the accused, the witness has stated that he had not noted the details of the secret information received in any station diary and had not registered the FIR before arranging for the decoy trap. That they had not verified whether the currency notes of Rs.50/- was in the hands of the accused at the spot. That the decoy driver was searched and the tainted currency notes were recovered and at that time, the accused was also standing nearby but he was not searched and the tainted currency notes were not recovered from him at that time. Page 22 of 28 Downloaded on : Fri Aug 09 21:03:55 IST 2024
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9.3. The prosecution has examined PW-4 Shankarbhai Khatubhai Parmar at Exh.23 and the witness is the Investigating Officer, who has stated that he had taken over the investigation from Police Inspector K.K.Mysorewala and has recorded the statements of the connected witnesses and has received the order of sanction for prosecution, which is produced at Exh.24 and had, thereafter, filed the charge sheet before the competent Court. During the cross-examination, the witness has stated that he was present from the time of preparation of the panchnama Part-I till the trap was successful and he has recorded the statement of driver Jivanlal Taili and has also recorded the statement of Police Inspector K.K.Mysorewala.
9.4. The prosecution has examined PW-5 Jivanlal Ganeshlal Taili at Exh.43 and the witness is the decoy driver, who has stated Page 23 of 28 Downloaded on : Fri Aug 09 21:03:55 IST 2024 NEUTRAL CITATION R/CR.A/2544/2005 JUDGMENT DATED: 18/07/2024 undefined that he had truck No.RSY-5761, which was of his ownership and he was driving the truck. Taht 4 years ago, when he was going from Gota Cross Road with tiles filled from Morbi towards Udaipur, Rajasthan, the ACB Police has asked him whether any persons were demanding money and he had replied in the affirmative. That Police Inspector K.K.Mysorewala had written something and thereafter, had given Rs.300-400 to the driver but he cannot say the exact amount that was given. That the currency notes were placed in the left side shirt pocket after applying the powder in the jeep three extra persons sat in the truck and he was instructed to give the amount if any one asked for it. That he cannot say whether all the persons who sat in the truck were police personnel as they had not put on their uniform. During the cross-examination by the learned advocate for the accused, the witness has stated that after he parked the truck to the side, he was called by Police Inspector Mysorewala after 10-15 minutes and he does not know how to read Gujarati and what was written in the papers, but he was asked to affix his signature and thereafter, he went Page 24 of 28 Downloaded on : Fri Aug 09 21:03:55 IST 2024 NEUTRAL CITATION R/CR.A/2544/2005 JUDGMENT DATED: 18/07/2024 undefined away.
10. On minute appreciation of the evidence on record, the factum of demand has not emerged in the evidence of the decoy driver PW-5 Jivanlal Taili or the independent witnesses PW-1 Janakrai Jayantilal Brahmbhatt and PW-2 Natwarbhai Koyabhai Solanki. That no witness has stated that the accused either by words or by gesture had demanded the amount of illegal gratification but what has emerged from the record is that the truck was halted and the diary was asked by the accused and the diary was given by the decoy driver and was returned by the accused but there is no iota of evidence that any amount of illegal gratification was demanded by the accused. The decoy PW-5 Jivanlal Taili was the best witness, which could depose as to whether the accused had, in fact, demanded for the amount of illegal gratification either by words or by gestures but the decoy driver has stated that there were three persons and he does not know who had taken the amount of Rs.50/- from him. 10.1. It has also emerged on record that PW-4 Shankarbhai Page 25 of 28 Downloaded on : Fri Aug 09 21:03:55 IST 2024 NEUTRAL CITATION R/CR.A/2544/2005 JUDGMENT DATED: 18/07/2024 undefined Khatubhai Parmar, Investigating Officer, was a member of the raiding party from the beginning and had played an active role in the trap right from time the secret information was received till the trap was successful and after the trap was successful, he had taken over the investigation. It is also pertinent to note that the order of sanction for prosecution was merely produced at Exh.24 by the Investigating Officer but the sanction authority has not been examined before the learned Trial Court and there is no evidence as to whether the order of sanction for prosecution was given after proper application of mind.
11. On minute re-appreciation of the entire evidence of the prosecution and the impugned judgment and order, it appears that the learned Trial Court has thoroughly appreciated all the evidence on record and has given due consideration to all the material pieces of evidence. The learned Trial Court has discussed all the oral as well as the documentary evidence and if the evidence produced by the prosecution is examined in light of the law laid down by the Page 26 of 28 Downloaded on : Fri Aug 09 21:03:55 IST 2024 NEUTRAL CITATION R/CR.A/2544/2005 JUDGMENT DATED: 18/07/2024 undefined Constitution Bench in the case of Neeraj Dutta (Supra), it appears that the learned Trial Court has arrived at the findings which are legal and proper and there are no error in fact. Moreover, the view taken by the learned Trial Court in acquitting the accused is fairly possible and there is no illegality and perversity in the impugned judgment and order of acquittal.
12. In view of the settled position of law in the decisions of Mallappa (Supra) and Neeraj Dutta (Supra) and appraisal of the evidence produced by the prosecution, the reasons assigned by the learned Trial Court are reasonable and , this Court is of the considered opinion that the learned Trial Court was completely justified in acquitting the accused of the charges levelled against him. 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 complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the learned Trial Court.
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13. 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.
14. The impugned judgment and order of acquittal dated 26.04.2005 passed by the learned Special Judge (ACB), Fast Track Court No.3, Gandhinagar in Special ACB Case No. 4 of 1999 is hereby confirmed.
15. Bail bonds stand cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.
Sd/-
(S. V. PINTO,J) F.S.KAZI.....
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