CASE NO.: Appeal (crl.) 408 of 2008 PETITIONER: Bechaarbhai S. Prajapati RESPONDENT: State of Gujarat DATE OF JUDGMENT: 29/02/2008 BENCH: Dr. ARIJIT PASAYAT & J.M. PANCHAL JUDGMENT:
J U D G M E N T
CRIMINAL APPEAL NO 408 OF 2008
(Arising out of SLP (Crl.) No.6213 of 2007)
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the order passed by a
learned Single Judge of the Gujarat High Court dismissing the
appeal filed by the appellant.
3. Challenge before the High Court was to the judgment
and order dated 5.11.1993 passed by learned Sub-Judge,
Bhavnagar, in Special Case No.9 of 1991 whereby the
appellant was convicted and sentenced to suffer rigorous
imprisonment for one year in respect of offence under Section
161 of the Indian Penal Code, 1860 (in short the ‘IPC’) and for
offence punishable under Section 7(2) of the Prevention of
Corruption Act, 1988 (in short the ‘Act’), he was sentenced to
undergo rigorous imprisonment for one year in respect of each
of the offence and fine with default stipulation.
4. Background facts in a nutshell are as follows:
On 12.12.1990, one Luxury Bus bearing No. GTS-9919
was hired by Ramnikdas Hargovindas from Bharat Travels
Company for carrying a marriage party from Mahuva to
Selana. According to the complainant-Ghelabhai Jasabhai, the
Mehtaji of Bharat Travels who was present in the bus, at
around 6.00 or 6.15 a.m. of that day when the bus reached
Aasarana Chokadi, the appellant-accused stopped the luxury
bus and demanded the documents relating to the luxury bus
whereupon the complainant had shown the permit and other
papers. However, the police staff kept these papers with them.
The appellant-accused, then demanded Rs.250/-in the name
of entry fee. The complainant, then requested the appellant –
accused who was P.S.I. at the relevant time to let them go as
the bus was carrying a marriage party. However, the appellant
accused demanded Rs.250/- to which the complainant refused
as instructed by the owner of the bus. It is further the case of
the prosecution that the appellant-accused then told the
complainant that Rs.225/- be paid and the papers be collected
from that spot where the bus was intercepted by 10.00
O’clock, and in case the complainant is late, the amount be
paid at Khuntvada Police Station. So saying, the appellant
accused issued a receipt in token of having taken away the
permit and other papers which was received by Bhagwanbhai
Ranchhodbhai, the driver of the luxury bus. The driver was
then allowed to run the bus towards village Selana. The
complainant thereafter, returned to Mahuva and narrated the
incident to the owner/proprietor of the luxury bus. On hearing
this, the owner of the luxury bus was against giving any illegal
gratification as all the documents relating to the luxury bus
were genuine. Therefore, the owner decided to approach the
Anti Corruption Bureau, Bhavnagar. Accordingly, the
complainant, the owner of the luxury bus and one Ramjibhai
who happens to be the elder brother of the owner of the luxury
bus went to the Office of the Anti Corruption Bureau,
Bhavnagar, met Mr. Bhatt, P.I, of Anti Corruption Bureau,
Bhavnagar, apprised him of the matter and lodged the
complaint. It is further the case of the prosecution that two
Panchas were called and they were told the purpose for which
they have been called, the complaint was read over to them
and they agreed to be Panch Witnesess. They were also
explained the purpose and use of anthracene powder.
Thereafter, the complainant gave two currency notes in the
denomination of Rs.100/-each and one currency note in the
denomination of Rs.50/- aggregating Rs.250/-. These
currency notes as also the hands of the complainant, Panchas
and other staff were observed in ordinary light and nothing
significant appeared. Thereafter, a bottle containing
anthracene powder was taken from the cupboard, some
anthracene powder was put in a blank paper, these currency
notes were smeared with anthracene powder and when they
were again observed in ordinary light no visible marks were
seen. These currency notes were again tested under ultra-
violet lamp and glowing marks of bluish powder were seen.
These currency notes were then put into the shirt pocket of
the complainant after ensuring that the shirt pocket was
empty. It was explained to the complainant that in ordinary
light the marks of anthracene powder will not appear but only
under ultra violet lamp the bluish powder marks of
anthracene powder can be seen. The anthracene powder that
remained in the blank paper was then put back into the bottle;
the bottle was placed in the cupboard and locked. The blank
paper was burnt and destroyed. The complainant was
instructed not to touch the currency notes put in his pocket
except for the purpose of giving them to the appellant-accused
and that these currency notes should be given to none other
than the appellant-accused. With these instructions the
constable washed his hands and made sure that there were no
marks of anthracene powder by viewing under ultra violet
lamp. The preliminary Panchnama Exh. 14 was drawn. The
raiding party then left for Khuntvada – some persons went by
Ambassador Car while the others went by Jeep. The
complainant was instructed to give signal as soon as the
amount is demanded and accepted by putting his hands on
his head and Panch No.1-Hemantkumar Jayantilal Bharu was
instructed to remain in the company of the complainant. In
this manner, with a view to apprehend the appellant-accused
red handed while demanding and accepting the illegal
gratification from the complainant, the trap was arranged. It is
further the case of the prosecution that they reached
Khuntvada at 5.30 p.m. and on instructions by P.I. Mr. Bhatt,
Ramjibhai Ukabhai, the elder brother of the owner of the
luxury bus went to Khuntvada Police Station to inquire
whether the P.S.I. was present or not, however, since the P.S.I.
was not available at the Police Station, they decided to wait for
an hour. It is alleged that within an hour the Police Jeep went
towards the Police Station, and therefore, Panch No. 1 along
with the complainant was sent to the Police Station. They went
to the Police Station on foot and so did the others who
followed. The complainant went up the first floor where he met
the appellant-accused (P.S.I.) who was sitting in the Chamber
while Panch No. 1 who accompanied the complainant waited
at the door of the P.S.I’s Chamber. The complainant requested
to handover the papers of the luxury bus, but the appellant-
accused asked whether he (complainant) had brought the
money i.e. the illegal gratification. The complainant suggested
that some lesser amount than Rs.250/- be accepted to which
the appellant-accused replied that Rs.200/- be given.
Accordingly, the complainant handed over the tainted
currency notes of Rs.200/- to the appellant-accused who
accepted the same by his left hand, put it in his right hand
and then into his right hand trouser pocket. The appellant-
accused then gave the portfolio that was in the cupboard. In
the meanwhile, the complainant had kept the remaining
currency note of Rs.50/- in his pocket. The appellant-accused
then demanded the receipt which was given at the time of
interception at the spot, but the complainant told that the
receipt was with the driver. It is alleged that, at that time,
Panch No.1 was at a distance of five feet from the Chamber of
the appellant-accused and heard the conversation between the
complainant and the appellant-accused. It is also alleged that
the complainant, thereafter, came out near the staircase and
gave the preplanned signal to the ACB personnel who rushed
to the Chamber of the appellant-accused in the company of
Panch No.2 Ishwarlal Girdharlal Chauhan. The ACB Inspector
revealed his identity by showing his card, took away the
revolver from the appellant-accused (P.S.I.). At that time, the
appellant-accused got frightened and took out the said tainted
currency notes from his trouser pocket and kept them in his
fist. The P.I. ACB, Bhavnagar then apprehended the appellant
for having demanded and accepted a sum of Rs.200/- from the
complainant for showing him favour by allowing the luxury
bus to go to the destination and the appellant-accused was
asked to place his hands on the table and the tainted currency
notes were recovered from the appellant-accused. Thereafter,
the test of anthracene powder was carried out on the hands of
the raiding party by viewing their hands under ultra violet
lamp and no marks of anthracene powder was found. Similar
test was carried out of the hands of the complainant, the
appellant-accused and trousers of appellant-accused and
presence of anthracene powder was noticed. It is further
alleged that the recovered currency notes of Rs.200/- were
compared with the numbers and denominations of the
currency notes mentioned in the pre-trap Panchnama and the
same having tallied in toto were seized. The appellant-accused
was taken into custody. The tainted currency note of Rs.50/-
that remained in the pocket of the complainant was also
compared with the number and denomination mentioned in
the pre-trap Panchnama and the same also tallied. Thereafter,
a detailed second part of the Panchnama was drawn in
presence of the Panchas, muddammal currency notes, trouser
worn by the appellant-accused etc. were attached. It is further
the case of the prosecution that on the next day, further
statement of complainant was recorded and at that time he
produced the receipt issued by the appellant-accused. The
statements of witnesses were recorded and the sanction for
prosecution in respect of the appellant-accused was obtained
from Mr. Brar, Junagadh.
After completion of investigation a charge sheet was filed
undertaking alleged commission of offence punishable under
Sections 7, 12 and 13(1)(d) of the Act. Learned Special Judge
framed charges for offence punishable under Sections 7, 12
and 13 (1)(d) read with Section 13(2) of the Act and Section
161 of IPC.
As noted above, the appellant was convicted for offence
punishable under Section 7(2) of the Act and Section 161 IPC.
The appeal before the High Court was dismissed on the
ground that there was sufficient evidence on record to hold
that the appellant did demand and accept the bribe money
from the complainant.
5. The learned counsel for the appellant submitted that the
evidence is inadequate and does not establish demand and
acceptance of illegal gratification. The appellant all through
has taken the stand that he was falsely implicated.
Alternatively, it was submitted that the sentence as imposed is
heavy considering the amount of bribe alleged to have been
received.
6. Learned counsel for the respondent-State on the other
hand supported the order.
7. It is to be noted that both the trial Court and the High
Court have analysed the evidence in great detail and have
found that the appellant had demanded and accepted a sum of
Rs.200/- from the complainant for allowing the luxury bus to
go to the destination. The tainted currency notes were
recovered from the appellant. The test of anthrecene powder
was carried out of the hands of the raiding party under ultra
violet lamp but no marks of anthracene powder was found.
Similar test was carried out on the hands of the complainant.
On the accused-appellant’s trouser presence of anthracene
powder was noticed. It has also been established that the
numbers of the currency notes were matched with the
denominations mentioned in the pre-trap panchnama.
8. Looked at from these angles, it cannot be said that the
conclusions of, either the trial Court or the High Court, suffer
from any infirmity.
9. The alternative submission relates to the harshness of
sentence. The occurrence took place nearly seven years back.
It is stated that the appellant has suffered custody for more
than six months. Taking into account all these aspects, we feel
interest of justice would be best served if the sentence is
reduced to the period undergone, while maintaining the
conviction. It is to be noted that the minimum sentence
prescribed under Section 7(2) of the Act is six months.
10. The appeal is dismissed subject to modification of the
sentence as noted above.