JUDGMENT
J.S. Sekhon, J.
1. The appellant was tried and convicted by the learned Sessions Judge, Ferozepore invested with the powers of Special Judge for offence Under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act and Section 161 of the Indian Penal Code, and sentenced to undergo rigorous imprisonment for one year and a fine of Rs. 1000/- or in default of payment thereof, to further suffer rigorous imprisonment for two months on the first count and one years rigorous imprisonment of the second count. Both the substantive sentences were, however, ordered to run concurrently.
2. Feeling aggrieved against the above-referred order of conviction and sentence, the appellant has preferred this appeal.
3. The brief re’sume’ of facts relevant for the disposal of this appeal is that Prithipal Singh appellant while posted at Ferozepore as Assistant Controller of Weights and Measures visited the shop of Mohan Lal (P.W. 3) on 24-1-1984 in the latter’s absence. Pardeep Kumar, servant of Mohan Lal was then present at the shop. The accused instructed Pardeep Kumar that there being no stamps on the iron yard-slicks besides there was no price tag appended to the towels exhibited for sale, he has prepared the challan obviously for the prosecution of Mohan Lal. He then obtained the signatures of Pardeep Kumar on a blank paper and directed him to send Mohan Lal, owner of the shop, to his office. Mohan Lal complainant had gone to attend the marriage of his friend and returned the next day. He went to the office of the accused on that day but the accused was not available. Accordingly, Mohan Lal contacted the accused on 5-2-1984 in the living portion of the building where the office of the accused is located. The accused informed Mohan Lal that he has committed a number of irregularities and faults which would entail a fine of Rs. 500/- to Rs. 700/- and that in case he pays the accused Rs. 200/- then no case will be registered and the matter will be hushed up. The accused directed the complainant to see him on the next day at about 2 p.m. for payment of the said amount. Mohan Lal complainant being not willing to pay the bribe, went to the office of the Vigilance Department on 6-2-1984 at 1 p.m. and informed Surjit Singh Inspector (P.W. 7) of the entire episode. The Inspector, in turn, took into confidence the Additional Deputy Commissioner, Ferozepore and requested him to depute some official for conducting the raid. Accordingly, Karnail Singh, Superintendent of that office was deputed by the Additional Deputy Commissioner to accompany this police officer. Inspector Surjit Singh also joined Satish Kumar (P.W. 4). Thereafter, this police officer recorded statement Exhibit P. F. of Mohan Lal complainant in his office and got a case registered Under Section 5(2) read with Section 5(i)(d) of the Prevention of Corruption Act and Section 161 of the Indian Penal Code against the accused at Police Station, City Ferozepore. The Inspector then noted the numbers of the two currency notes of the denomination of Rs. 100/ – each and sprinkled phenolphathlein powder thereon. The notes were again entrusted to Mohan Lal with a direction that he should hand over the same to the accused on demand. Satish Kumar was deputed to act as shadow witness and give a signal to the police party by placing his hand on the head after the passing of the hush money. The entire party then went inside the Civil Hospital, Ferozepore. Mohan Lal and Satish Kumar witnesses went to the office of the accused while the remaining party stood near the staircase in the deorhi. After 7-8 minutes on receipt of the proposed signal of Satish Kumar, the raiding party rushed to the office of the accused and saw him throwing the currency notes in the waste paper basket. The accused also stood up from the chair at the sight of the police party. The Inspector disclosed his identity and got the hands of the accused washed in the solution of sodium carbonate in the presence of the above-referred witnesses. The colour of the solution then turned pinkish. This solution was sealed in a phial Exhibit P.1. Thereafter, the Inspector seized the currency notes after lifting the same from the waste paper basket and took the same into possession vide memo Exhibit P.H. On personal search of the accused, purse containing Rs. 250/ – in cash and a watch were taken into possession. The office room of the accused was also searched for recovering the alleged challan papers but the same could not be traced out. The inspector then prepared rough site plan Exhibit P.Q. of the spot besides recording the statement of the witnesses. After completion of the investigation, sanction Exhibit P.A. was obtained from the Director of Industries for the prosecution of the accused. The accused was arraigned for trial on such like allegations.
4. At the trial, the prosecution in support of its case examined Mohan Lal, Satish Kumar and Karnail Singh as witnesses to the actual incident besides examining Rajinder Singh, Assistant Director of Industries for proving sanction Exhibit P.A. accorded by Shri Amarjit Singh, Director of the Department. Pardeep Kumar P. W. was also examined in order to prove that the accused had contacted him at the shop of Mohan lal complainant and given the above-referred direction. Inspector Surjit Singh also appeared as witness and deposed about the investigation conducted by him. The version of the accused before the trial Court was that of innocence and false implication at the instance of the business community as he had implemented the provisions of the Weights and Measures Act strictly and honestly. He further denied having visited the shop of Mohan Lal or having given instructions to Pardeep Kumar to ask Mohan Lal to contact him. On the other hand, he maintained that on the alleged day he was inside the toilet when Mohan Lal came to his office and he found him sitting there. He had a hand shake with Mohan Lal and and in the meantime police arrived there and caught him from his hands. He further stated that all the witnesses had deposed falsely against him. When called upon to enter upon his defence, the accused examined Yash Pal Arora (D.W. 1) in order to show that some departmental enquiry was pending against Inspector Surjit Singh. Himmat Singh Inspector was examined as D.W. 2 in order to prove that the accused had strictly enforced the provisions of the Weights and Measures Act by detecting 218 cases during his tenure at Ferozepore. Surinder Singh Draftsman was examined as D.W. 3 in order to prove site plan prepared by him regarding the topography of the location of the office of the accused. Rajinder Kumar (D.W. 4) deposed about the printing of visting cards at the instance of Satish Kumar as Propaganda Secretary of Cloth Merchants Union while Jaswant Singh Moharrir Head Constable appeared as D.W. 5 to depose about the registration of a case against one Mohinder Pal Singh Under Section 5(2) read with Section 161 of the Indian Penal Code at the instance of Surjit Singh Inspector. Certified copies of judgments Exhibits D.H., D.J. and D.K. were tendered in evidence to show that some strictures were passed against Surjit Singh Inspector by disbelieving his testimony in the concerned cases.
5. The trial Court believing the above-referred ocular evidence of the recovery of two currency notes and corrborative evidence of smearing of the hands of the accused with Phenolphthalein Powder convicted and sentenced the accused as referred above. The defence version did not find favour with the trial Court.
6. I have heard the learned counsel for the parties besides perusing the record.
7. Admittedly, Satish Kumar (P.W.4) was not known to the accused earlier. According to the prosecution version, the accused had simply instructed Mohan Lal (P.W. 3) to pay him Rs. 200/- when the latter had contacted him all alone at his residence on 5-2-1984 in order to save his prosecution for contravening the provisions of the Weights and Measures Act.-Thus, under these circumstances, there appears to be considerable force in the contention of Mr. S.C. Sibal, learned counsel for the accused, that the accused would be the last person to accept bribe in the presence of a stranger like Satish Kumar. The matter does not rest here, as the conduct of Satish Kumar in getting up from the chair and coming out of the office just after the acceptance of the money would certainly make the accused suspicious and result in either concealing the currency notes or disposing these off otherwise. The accused would not continue holding the currency notes in his hands during this interval at the risk of being caught red-handed. Under these circumstances, the testimony of Mohan Lal, Satish Kumar, Karnail Singh and Inspector Surjit Singh that the accused was still having the currency notes in his hands when the police party accompanied by these witnesses arrived there is not acceptable being inherently improbable. This conclusion is further fortified from the admission of Satish Kumar (P.W. 4) in examination-in-chief that the Inspector had searched the room and recovered the currency notes. This cannot be said to be a stray admission on his part as in the later portion of examination-in-chief he further stated that the room was also searched for the recovery of the challan papers but these were not available. During cross-examination, he conceded that the room of the accused was searched twice which leaves no scope for holding that this witness had stated so under some confusion or that he is confusing the search of the room for the recovery of the challan papers for the recovery of currency notes as contended by Mr. H.S. Bhullar, Deputy Advocate General, Punjab. The mere factum that Satish Kumar had deposed in the earlier part of his examination-in-chief that the accused had thrown the currency notes in the waste paper basket at the sight of Inspector Singh, is of no consequence in view of the damaging admission in the later part of the examination-in-chief. Moreover, this witness is the first cousin of Mohan Lal complainant. From the tenor of his testimony, it cannot be said that he has in any manner tried to oblige the accused by deliberately making the above-referred damaging admission. On the other hand, it appears that he had failed to suppress the truth by stating that the currency notes were recovered during the search of the office room of the accused. Thus, the testimony of Karnail Singh Superintendent (P.W. 5) to the effect that the accused was holding the currency notes when he along with Inspector Surjit Singh and other party members had entered the office is not acceptable in view of the above-referred inherent infirmity that the accused would continue holding the bribe money after Satish Kumar P.W. had left his office although this witness has no motive to depose falsely against the accused. It can be well said that Karnail Singh P.W. is deposing so on make-belief basis although he may have failed to observe whether the accused was holding the currency notes or not due to the quick succession of events.
8. In view of the above state of prosecution evidence, the mere factum that the hands of the accused were smeared with Phenolphthalein Powder is of no consequence, especially when he may have got his hands smeared while shaking hands with Mohan Lal complainant as stated by him. Obviously, Mohan Lal complainant must be agitated against the accused as he had taken away two iron yard-sticks in the latter’s absence which were recovered from his office during the raid. The mere factum that the accused had also denied the seizing or recovery of these yard sticks is of no consequence because keeping in view the normal conduct of human beings, everybody would like to deny everything when faced with a serious charge like corruption.
9. Mr. S.C. Sibal, learned counsel for the appellant, also found fault with the sanction Exhibit P.A accorded under Section 6 of the Prevention of Corruption Act by Shri Amarjit Singh, Director of Industries to prosecute the accused for the above-referred evidence, contending that it suffers from the vice of non-application of mind as the pro forma for the same was supplied by the Vigilance Department which was retyped with minor changes and signed in routine according to Rajinder Singh, Assistant Director (P.W. 1). Mr. H.S. Bhullar, on the other hand, contended that the diction of the sanction itself shows due application of mind by the concerned official after going through the challan papers and the very factum of effecting minor changes in the pro forma of sanction supplied by the Vigilance Department clearly spells out the due application of mind. The law is well-settled on the point that the act of according sanction to prosecute under Section 6 of the Prevention of Corruption Act is not a mere idle formality but is a solemn and sacrosanct act which affords protection to the Government servants against frivolous prosecution and that the concerned authority has to apply its mind to the facts and circumstances of the case in order to conclude that prima facie case is made out before according such sanction to prosecute. The observations of the Apex Court in Mohd. Iqbal Ahmed v. State of Andhra Pradesh, AIR 1979 SC 677 : (1979 Cri LJ 633) figuring in a portion of para 3 of the judgment may be referred and quoted with advantage. The portion of this para reads as under at p. 635; 1979 Cri LJ :–
“It is incumbent on the prosecution to prove that a valid sanction has been granted by the Sanctioning Authority after it was satisfied that a case for sanction has been made out constituting the offence. This should be done in two ways; either (1) by producing the original sanction which itself contains the facts constituting the offence and the grounds of satisfaction and (2) by adducing evidence aliunde to show that the facts placed before the Sanctioning Authority and the satisfaction arrived at by it. It is well settled that any case instituted without a proper sanction must fail because being a manifest defect (sic-defect) in the prosecution, the entire proceedings are rendered void ab initio. In the instant case no evidence has been led either primary or secondary to prove as to what were the contents of the note mentioned in Exhibit P. 16 which was placed before the Sanctioning Authority. The evidence of P. W. 2 or P.W 7 is wholly irrelevant because they were not in a position to say as to what were the contents of the note which formed the subject-matter of the sanction by the Standing Committee of the Corporation. The note referred to above was the only primary evidence for this purpose. Mr. Rao vehemently argued that although the Resolution Exh. P. 16 does not mention the facts, the Court should presume the facts, on the basis of the evidence given by P.W. 2 and the other implementing sanction which mentions these facts. This argument is wholly untenable what the Court has to see is whether or not the Sanctioning Authority at the time of giving sanction was aware of the facts constituting the offence and applied its mind for the same and any subsequent fact which may come into existence after the resolution granting sanction has been passed, is wholly irrelevant. The grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection to Government servants against frivolous prosecutions and must therefore be strictly complied with before any prosecution can be launched against the public servant concerned.”
10. Viewing the facts of a the present case in the light of the above observations of the Apex Court, it transpires that the possibility of sanction Exhibit P. A. accorded by Shri Amarjit Singh, Director of Industries being suffering from the vice of non-application of mind cannot be ruled out, as according to Rajinder Singh, Assistant Director (P.W. 1) the proforma for sanction was supplied by the Vigilance Department and it was got retyped with minor changes and thereafter the Director of Industries signed the same in routine. This admission was made by Rajinder Singh during cross-examination. Strangely enough the prosecutor had not sought permission to re-examine this witness to clarify whether the police file of the case also accompanied the proforma of sanction. Further, Inspector Surjit Singh had not stated having forwarded the police file to the Director of Industries for obtaining sanction to prosecute the accused. Under these circumstances, the minor changes in the proforma without the availability of the file will not improve the case of the prosecution and will not be sufficient to conclude the due application of mind as contended by Mr. H.S. Bhullar. The mere factum that in paragraph 6 of the sanction Exhibit P. A. it is written that sanctioning authority had gone through the challan papers and is satisfied that a prima facie case under Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act read with Section 161 of the Indian Penal Code is made against Prithipal Singh accused is of no consequence because this cannot be said to be minor change in the proforma supplied by the Vigilance Department, and proforma is supposed to contain this vital clause. Thus, it cannot be said that valid sanction was obtained by the prosecution from the requisite authority as required by the mandatory provision of Section 6 of the Act.
11. Consequently, for the reasons recorded above, the order of conviction and sentence of the accused being not sustainable is set aside by accepting this appeal. The accused stands acquitted of the charge under Section 5(2) read with Section 5(i)(d) of the Prevention of Corruption Act read with Section 161 of the Indian Penal Code. His bail-bonds are discharged.