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15. It is submitted by Mr. A. J. Desai that findings recorded by learned Trial Judge are absolutely legal and accused have been rightly linked with the Crime. Merely because, this was the first case of trap and that too with the use of anthracene powder. The exercise undertaken by P. I. Mr. Solanki should not be viewed with any doubt or suspicions. If the argument advanced by Mr. Desai are mentioned in nutshell, then they are:

(i) The Id. trial Judge has rightly appreciated the evidence as to preparation of Form F and the act of accused No. 2 of not mentioning the actual amount of valuation though accused No. 2 was under obligation to assess the value of the goods in absence of the documents of the goods brought within the octroi limit of the city. Form F is being prepared for all such goods reaching the octroi check-post without any bill or proof as to the value of the material and there is no error in evaluation part of evidence.

22. The effect of the presence of anthracene powder marks allegedly found at various places mentioned in the second part of panchanama is seriously challenged by the other side. Mr. Shah has drawn attention of the Court to one important improbability from the evidence of the Trap Officer PI Mr. Solanki. According to PI Mr. Solanki, anthracene powder was smeared on currency notes by the complainant at Kathalal cross-roads where the car was parked and by putting inner lights of the car on, the anthracene powder was smeared and the experiment was done in the presence of panchas to make them understand as to the importance and effect of the use of anthracene powder. It is possible to visualize the entire exercise which was allegedly carried out inside the motor car and that too under the inner lights of the motor car and in the background of the maximum space available inside the car in our country. When it is in evidence that anthracene powder was smeared in presence of PI Mr. Solanki, then it can be said that Mr. Solanki was inside the car. It is in evidence that the currency notes of Rs. 130/- were smeared with anthracene powder. Battery of ultra-violet lamp must have been also taken Inside the motor car as panchas were to see and witness such exercise and, therefore, presence of both the panchas inside the car also can be presumed. According to PI Mr. Solanki, the entire exercise of smearing the anthracene powder was done by one Nathabhai and he had made panchas and the complainant appraised about the characteristic of anthracene powder. So also, Mr. Nathabhai can be presumed to be inside the car. Two vehicles were there i.e. car and the truck that was stopped by Mr. Solanki loaded with wood. So, at least four big lights were available at least for some time to carry out the ultra-violet lamp experiment. Inner light of motor car with the presence of about 5 persons inside the car, would have made this exercise possible is the question, which has not been appropriately appreciated by the trial Court.

24. Mr. Shah, Id. Counsel appearing for the appellant accused has of course concentrated the arguments on the use of anthracene powder and the say of the prosecution as to the marks of anthracene powder lound present placing reliance on more than one decisions to plead that the say of the prosecution witnesses should not be accepted because none of these witnesses were able to establish scientifically and convincingly the presence of anthracene powder on the hands of the accused and at other places mentioned in the second part of panchanama including the documents Exhs.11 and 12 and muddamal Article No. 5 receipt book. Mr. Shah has hammered that PI Mr. Solanki was inexperienced. It is not say of Mr. Solanki that he was trained departmentally qua use of anthracene powder while laying ACB traps. One Mr. Nathubhai-a member of the raiding party who was a possession witness and an experienced person has undertaken that exercise of smearing of anthracene powder and that witness has not been examined the defence side could have destroyed the first part of panchanama which was allegedly prepared regarding experiment in motor car by putting inner lights of the motor car on, as highly improbable. The witnesses are contused also as to the length and width of ultra-violate lamp vis-a-vis size. But it is not necessary in the present case to comment on this aspect because as discussed in the earlier part of the judgment, the experiment carried out while drawing first part of panchanama appears to be less probable.

25. There is not only logic, but the evidence led by the prosecution clearly supports the arguments of Mr. Shah that the accused in the present case was not supposed to explain clearly as to how anthracene powder marks were seen on his hands or what is his say about anthracene powder marks on the ball-point pen which was taken under ultra-violate lamp at the time of drawing of second part of panchanama. This clinching evidence gets explained by the witnesses examined by the prosecution. Panch witness, in his deposition, has stated that on arrival of Mr. Solanki, PI at octroi naka, he had instructed the accused not to move and also instructed that nobody should touch the articles that were lying on the table. He has stated that it is not true that at the time of raid when Mr. Solanki came, bribe amount was not there in the hands of accused No. 1. He has accepted the suggestion that he took the muddamal currency notes from the hands of the accused. The time taken in completing the raid is described as 3 to 5 minutes. According to Mr. Solanki, everything was over within 3 minutes and according to panch witnesses, everything was over within about 5 minutes. It has not come on record exactly that after getting signal, as to in how many minutes or seconds PI Mr. Solanki was able to enter the octroi naka. If the say of the prosecution witness is accepted, then it can be said that the accused had not pocketed the amount tendered by the complainant prior to entry of PI Mr. Solanki. Accused No. 1 was otherwise entitled to accept the currency notes. In the case of Kantilal H. Patel v. State of Gujarat 2007 (1) GLH 736, this Court, has held that'...in ACB traps cases, if there is hazy evidence as to initial demand made before presuming acceptance of hidden demand of illegal gratification the Court should be assured undoubtedly that the appellant had directly or indirectly demanded the amount of bribe-illegal gratification only. The accused being a revenue officer on behalf of the State, does not fall in the category of the persons who are not supposed to discharge their duties.' Here in the present case, there is no scope to have evidence as to initial demand of bribe made by the accused being a trap arranged with the help of a punter on receipt of some information. The present accused was also authorized to accept the currency notes on behalf of Ahmedabad Municipal Corporation as octroi fees. So, the acceptance of folded notes of Rs. 20/- denomination that were smeared with anthracene powder, would also bring anthracene powder marks on the hands of accused. Only on counting, the accused can realize that one more note of Rs. 20/- denomination is there. When accused No. 1 has not either pocketed the amount nor he had placed it on the table which could have been said to be implied acceptance after counting the same, then it is difficult for the Court to reach to a conclusion that acceptance of muddamal currency notes was against any demand made earlier especially in the background of other above-stated circumstances and other circumstances that have emerged in the present case. PI Mr. Solanki ought to have waited for some minutes more to get confirmation that the amount of Rs. 20/- in excess has been accepted lawfully and, therefore, it can be said to be an acceptance of gratification by a public servant. This Court is supposed to look to the evidence and the evidence of prosecution witnesses on this point is not consistent. On the contrary, Mr. Solanki, in his cross-examination, has stated thus; after getting down, all the persons who were in the truck, had scattered nearby Naka and 1 was close to Naka. At that time, no other persons were there near octroi naka and no other truck was also there at the spot. The complainant and the panch had entered the octroi office and it Look 3 minutes in receiving the signal as agreed. He was the first person to enter the octroi naka. Mr. Merujai was immediately after him.' Mr. Merujai-the Court is informed that Mr. Merujai is the PSI assisting PI Mr. Solanki in trap Mr. Solanki has further slated that 'it is not true that when he entered the office, muddamal currency notes were in the hands of accused No. 1'. This would mean that this evidence of PI Mr. Solanki is in direct conflict with the evidence of panch witness. He has also denied that he got the currency notes recovered from the accused No. 1 through panch No. 1. Mr. Solanki has voluntarily stated to the Court that the articles that are seized were on the table and they were kept as they were. He has accepted that in the panchnama, it is written that Manubhai Brahmbhatt i.e. accused No. 1 was asked to give the Form : F-a form filled in by Dabhai Vaghela i.e. complainant and that form was given which was on the table. This indicates that the accused was compelled to touch Form : F after the entry of Mr. Vaghela and also touching of muddamal currency notes by the accused. Mr. Solanki has voluntarily stated that accused No. 1 had tendered the receipt book of Form : F. He has admitted that Manubhai Brahmbhatt i.e. accused No. 1 used ballpoint pen while preparing receipt and he was asked to tender and produce the ball-point pen and then the ball-point pen was produced by accused No. 1. It is also mentioned in the panchnama that ultra-violet lamp experiment was made of each article in a sequence as they were tendered for ultraviolet test. How Form F : was filled in, whether at any point of time any blank was left deliberately etc. are the points that have been focused by the Id. trial Judge while recording conviction. Of course, these aspects are relevant, but not very significant because they are not found consistent with the guilt only nor they are inconsistent with the innocence of the accused because ultimately, the value of the goods was found less than Rs. 3000/- that was assessed by accused No. 2. Therefore, there are clear circumstances indicative of one fact that muddahial articles that were allegedly examined under the ultra-violet lamp, were taken for experiment through the accused. The accused was asked to tender these articles one by one that were kept on table. Accused himself was touching these articles for tendering the same and so the marks of anthracene powder were bound to reflect. So, the presence of anthracene powder on ball point pen or on Form :F, is not significantly cairrying the case of the prosecution any further. When these circumstances were already there on record, why the accused should be asked to explain as to how the ball point pen and Form : F were found stained with the anthracene powder marks. Blue circle is drawn around such spot so this Court reasonably says that presence of anthracene powder marks was only on one side of Form F : If the said article was really handled by the accused after accepting the amount of bribe, then at least anthracene powder marks would have been found at the back portion of Form : F, but it appears that marks are not found there and, therefore only, there is no such marking with circle on the back portion of Form : F. In the same way, when the case of the prosecution is that receipt Exh. 12 was handled by two different persons after accepting the amount of bribe, then anthracene powder marks normally would be at more than two places; viz. firstly at two places where the hands of accused would have touched and secondly at other two places where the complainant would have accepted the receipt handed over to him by accused No. 1. However, only at two places, anthracene powder marks were found if the circles drawn by PI Mr. Solanki are seen. It is on the left hand side of the receipt and that too in the middle portion. The area of anthracene powder marks seen on the front side tallies with the circle shown on the back portion of Exh. 12. So, Mr. Shah has rightly argued that these anthracene powder marks might have been seen as this receipt was given by the accused as he was asked to do so by Mr. Solanki to carry out ultra-violet lamp experiment. The circle drawn on Exh. 12 nullifies the case of the complainant and panch that it was prepared piecemeal and after counting muddamal currency notes and the amount, figure 'Rs. 60/-' was written and after tallying the pink page of the receipt book, it was handed over to the complainant and it was received by the complainant. On the contrary, the evidence creates an impression in the mind of the Court that before receipt was taken out of the book, Mr. Solanki under sheer haste, had entered the octroi naka enthusiastically to have a successful raid. 1 have carefully seen the book from which this receipt was taken out. If the receipt of Rs. 60/- was prepared and taken out after acceptance of Rs. 60/- as an amount of bribe, then at number of places, anthracene powder marks would have been found as the book was tendered for examination under ultra-violet lamp test by the accused on the direction given by PI Mr. Solanki and so the book would have stains of anthracene powder at number of places then the places actually shown by drawing blue circle. Blue circle is found at only two places. The muddamal article No. 5. Receipt Book is bound book of printed receipts having three different colours of page for each receipt. It is horizontal flat book and on each page,; two receipts are printed. Receipt No. 9 in the present case was prepared and the i pink portion required to be given to octroi duty payer and for which separation of the receipt was required to be done by tearing the perforated portion of the receipt attached with receipt No. 10. Obviously, receipt No. 10 is blank. In the same manner earlier receipts were prepared between 12.30 a.m. and 7.00 a.m. On 24th August, 1989 bearing Receipt Nos. 5 to 8. The last receipt prior to receipt No. 9 appears to be for Safex Engineering for importing of goods worth of Rs. 13,000/- and that receipt was prepared at 9.00 a.m. The time in the present receipt is shown as 7.10 a.m. On none of these receipts, either receipt No. 7 or receipt No. 10 circles with blue ink ball point pen are found, meaning thereby that either these receipts had not come in contact with anthracene powder or PI Mr. Solanki may have acted negligently in marking the areas where anthracene powder marks were seen. A person tearing apart receipt No. 9 i.e. the receipt produced in the present case, shall have to put his hands or some pressure on receipt No. 10 to get receipt No. 9 detached. Surprisingly, reference of presence of anthracene powder marks on receipt No. 10-a very crucial part of the book, is not made stating to have stained with any anthracene powder. Cover of receipt book is shown to have anthracene powder marks on the lower middle portion and back portion of this very receipt book is also shown to have anthracene powder marks near the bound portion of the book. There is a big circle drawn with blue marking ball point pen. It appears that when this book was lifted at the time of giving the same to PI Mr. Solanki by accused as per the direction, the anthracene powder must have touched. Under a particular contingency and set of circumstances, the use of anthracene powder can go against the prosecution also. Absence of anthracene powder marks on receipt No. 10-an immediate next receipt or on white or yellow pages of receipts issued, makes the version of the complainant and panch witnesses doubtful as to preparation and handing over of the receipts by accused No. 1 after accepting the amount of bribe i.e. additional amount of Rs. 20/-. It also seriously affects the allegation that the accused initially had counted all currency notes and after accepting the said amount, he had written figure 'Rs. 60/-' in the receipt and receipt thereafter was handed over to the complainant. For short, the presence of anthracene powder marks on all these articles are found explained as these articles were received for experiment by Mr. Solanki and the members of raiding party through the hands of the accused. An impression created in the mind of the Court is that the complainant in the present case is a person pre-arranged otherwise it would not have been reflected in the deposition of Mr. Solanki-PI that he had received information regarding a particular octroi naka and also it would not have been there that the persons on duty at octroi naka are accepting the gratification from the persons who are bringing wood within the city limits by getting the value of the goods assessed less than its actual market value. The presence of owner of the goods at odd hours, though he himself was not a driver, indirectly supports this contingency. The Court can easily co-rrelate these facts with the fact this was a first case for PI Mr. Solanki and till that date, he had not done anything substantially for want of a complaint under which he could have laid a trap. It also emerges that the objectionable or otherwise inadmissible part of evidence has been read. Inadmissible portion of the panchanama ought to have been bracketed and if this part is bracketed and ignored as part of panchanama, no reliable evidence would remain. The strong probability is emerging that when the accused was preparing a receipt, the amount was put on the table and receipt was given to the complainant and then the amount was lifted by the accused. Receipt was to be prepared on completion of Form : F only. The complainant must have simply walked away after putting the amount on table. Though it was indicated that Rs. 60/- was octroi fees, he put one currency note more of same denomination i.e. Rs. 20/- denomination and walked away, otherwise the anthracene powder marks would have been also at many other places then the place where the same are actually found.