CHANDRAKANT GANPAT SOVITKAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) These appeals are by special leave against the judgment of the Bombay High Court confirming the conviction and sentence passed on Rajendraprasad Devidas Mishra A-1 and Raghunandan Trivedi A-2 under Section 161 read with Section 34, I. P. C. and Section 5 (2) read with Section 5 (1) (d) of the Prevention of Corruption Act. A-1 was also convicted under Section 212, I. P. C. The two accused, along with Chandrakant Ganpat Sovitkar A-3, were tried for offences under Sections 120-B, 161, 201, 212, 217, 218, I. P. C. and Section 5 (2) read with Section 5 (1) (d) of the Prevention of Corruption Act, but A-3 was acquitted of all the charges and A-1 and A-2 were convicted and sentenced as aforesaid. A-1 was also convicted by the Trial Court under Section 218, I. P. C. but his conviction and sentence under that section was set aside. The High Court in an appeal against acquittal of A-3, partly allowed the appeal and convicted him for offences under Section 161 read with Section 34, I. P. C. and Section 5 (2) read with Section 5 (1) (d) of the Prevention of Corruption Act and sentenced him to suffer one year's rigorous imprisonment on that account. The State appeal against A-3 in regard to other of fences was dismissed.

(2.) The prosecution case is that A-1 who was Inspector of Excise and A-2 who was Sub-Inspector of Excise were both posted at Indore. They received certain information that Truck No. M. P. E.-5948 was carrying opium from Upper India to Hyderabad. On receipt of this information the two accused left Indore on August 26, 1963 and reached Omerga via Hyderabad on September 3, 1963 with a view to intercept the said truck and seize the contraband. They took their residence in the Dak Bangalow at Omerga, wrote to the local police on the same day for giving them assistance. A-3 the local police Sub-Inspector posted one Head Constable and some constables for the said purpose and a barricade was erected on the road in front of the Dak-Bangalow. On September 5, 1963 at about 5 a.m. a Poona bound car which was driven by Chandrakant Lonkar P. W. 18 in which there were two males and 3 females was stopped as some of them appeared drunk and had blood stains on their clothes. Accused Nos. 1 and 2 came to the spot and checked the car. They sent for A-3 Sovitkar who arrived at about 5-30 a.m. in plain clothes and was engaged in making enquiries from the occupants of the said car. While he was so engaged, at about 6 or 6.30 a.m. a station wagon of blue colour bearing number plate M.S.W. 7159 and going towards Hyderabad was stopped. This vehicle was being driven by Sabir Sadik P. W. 17 and Abrar Ali Khan P. W. 16 was sitting by his side. A third person, one K. Amarsingh, the owner of the vehicle was sleeping in the rear of the vehicle. Sheikh Jamal Head Constable P. W. 2, who was on duty near the Dak-Bangalow, called out A-1 and A-2 who were in the Dak-Bangalow along with A-3. A-2 came out to make enquiries. He collected from P. W. 17 his licence, Ext. 37, the certificate of registration Ext. 38, certificate of insurance, Ext. 39, tax token card, Ext. 40, and the keys of the vehicle. Thereafter A-2 gave the keys of the vehicle to P. W. 18 and asked him to take the station wagon to the compound of the Dak-Bungalow which he did. By this time A-1 had also come out and when he and A-2 were making enquiries and wanted to take a search, K. Amarsingh objected to it. In the meantime A-2 tried to open the inside roof of the vehicle with a screw driver and in that attempt succeeded in pushing the screw driver into the top. When he pulled it out, the screw driver smelt of opium. He showed it to A-1 who, it is alleged, on getting the smell of opium began to give fist blows to K. Amarsingh. A-1 ordered K. Amarsingh to take out the articles from the station wagon. When two trunks, one suit-case, one hold-all and accessories of the vehicles were taken out and Amarsingh opened the trunk there was found in it a leather bag with zip arrangement. When that zip was opened, bundles of currency notes of Rs. 5, 10 and 100, in all of the value of Rs. 30 to 40 thousands were disclosed. The trunk with the leather bag containing currency notes was ordered to be kept in the room of the dak-bungalow which was in the occupation of A-1 and A-2. The accused also led K. Amarsingh to the said room. Bhadur Khan P. W. 1 who was the Chokidar of the Dak-Bungalow; Maruti Salunke P. w. 13 who was the peon of the Tahsildar residing in the adjoining bungalow; P. W. 18 driver of the Poona bound car; P. W. 16 and P. W. 17 who were the drivers of the same station wagon, saw the leather bag and heard and watched the talk between the accused and K. Amarsingh. A-1 and A-2 thereafter tried to open the top of the vehicle and asked P. W. 18 to cut it with chisel and hammer, but when this was about to be done, P. W. 17 on the instructions from K. Amar Singh, put a chain in the hook hanging from the cavity in the dash-board and pulled it from the shutter of the first chamber. On being so pulled, the shutter of the first chamber moved back and the iron-sheet tilted. One cake of opium fell down. In this way 4 chambers of that size were discovered and they could be pulled back from the cavity of the first chamber. When all the chambers were opened, in all 290 cakes of opium of the total weight of 271.300 Kg. and valued at Rs. 2,15,000/- were recovered. Detailed Panchanamas Exts. 32 and 33 were made from 10.30 a.m. to 6 p.m. The two drivers were searched in respect of whom Pauchanamas are Exts. 34 and 35 and the articles found in the station wagon and the documents in respect of the station wagon are listed in Ext. 36. The Panchas who witnessed these Panchnamas are Manik Maruti Patil, P. W. 8, Dadarao and Indrajit. Chandrasha Madule, P. W. 7 was called to act as Pancha but he was not called on to witness them though he says he sat there for a pretty long time and watched the activities of the accused officers. It is also said that while P. W. 16 and P. W. 17 were handcuffed, K. Amar Singh was sitting in the Central Hall of the Dak Bungalow. Sheikh Jamal, Head Constable, P. W. 2 had brought the handcuffs to the dak bungalow and according to him he put one set of handcuffs on the two drivers and while he was about to put the second set on K. Amar Singh, A-1 and A-2 stopped him from doing so and said he was not to be handcuffed.

(3.) Accused No. 3 who had earlier left with the occupants of the Poona car to the police station, returned to dak bungalow shortly after 10.3 A. M. He found A-1 and A-2 in their rooms in the dak bungalow. After him, K. Amar Singh was called in that room and was sent out after some time. It was then that all the three accused are said to have had a discussion which, according to the prosecution, amounted to a conspiracy under which they were to have let off K. Amar Singh on accepting the amount which was with him. All the three accused were charged with conspiracy to accept as illegal gratification a large sum of money to screen him from prosecution for the illegal possession and transport of opium under Section 65-A of the Bombay Prohibition Act, and for committing an offence punishable under Section 120-B of the Indian Penal Code. All the three accused were acquitted of this charge. They were also charged that they being public servants, accepted from the person found with the Motor Vehicle No. MSW 7159 and calling himself as K. Amar Singh a large sum of about Rs. 40,000/- as gratification other than legal remuneration, as a motive or reward for forbearing to prosecute him for the offence of possessing and transporting opium and thereby committed an offence punishable under Section 161 read with Section 34 of the Indian Penal Code. As already stated, A-3 was acquitted of this charge but A-1 and A-2 were convicted. The High Court, however, reversed the acquittal of A-3 and convicted him of this charge. Similarly, all the three accused were charged under Section 5 (2) read with Section 5 (1) (d) of the Prevention of Corruption Act and Section 34 of the I. P. C. for abusing their position as public servants and for obtaining from the occupant of the motor vehicle K. Amar Singh a sum of Rs. 40,000/-. Of this charge also A-3 was acquitted and A-1 and A-2 were convicted. The High Court reversed the acquittal and convicted A-3 also of this offence. Again, all the three accused were charged for giving false information about the occupant of the motor vehicle calling himself to be K. Amar Singh as an informant and the opium contained therein and thereby committed an offence punishable under Section 201 read with Section 34 of the Indian Penal Code. They were also charged for offences under Section 212, 217, 218 each one read with Section 34, I. P. C. Of these charges, accused No. 1 was alone convicted under Sections 212 and 218 and was sentenced to suffer 9 months' rigorous imprisonment. A-2 and A-3 were acquitted of all these offences.