HARBHAJAN DASS Vs. STATE

JUDGEMENT

(1.) This is an appeal filed by Harbhajan Dass challenging his conviction under Section 161 of the Indian Penal Code and Section 5(2) read with Section 5(l)(d) of the Prevention of Corruption Act vide judgment dated 7th May, 1982. He has also challenged the order dated 18th May, 1982, sentencing him to three years' rigorous imprisonment under Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act for the offence of criminal misconduct and to three years' rigorous imprisonment under Section 161 of the Indian Penal Cede. He was also directed to pay a fine of Rs. 500.00 in relation to the charge under Section 5(2) of the Prevention of Corruption Act and in default of payment of the fiine he was directed to suffer further rigorous imprisonment for six months. The sentences, however, were directed to run concurrently.

(2.) It is not necessary to notice the prosecution case in detail as it has so been noticed in the judgment under appeal. However, briefly- the allega lions of the prosecution were that on 30th September, 1980, Public Witness .Basakha Singh had ledged a written complaint. Exhibit Public Witness 1/A, with the Central Bureau of Investigation, New Delhi, alleging that the appellant, who was at the relevant time employed as Inspector (Customs), had demanded a bribe of Rs. 300.00 From him for reducing the custom duty on a "ear tape stereo" which had been sent to him from Kuwait and was to be collected by him from the foreign post office, New Dielhi. On receipt of the complaint a case was registered and a trap was organised by Mr. A.A. Khan, Deputy Superintendent of Police for the next day, i.e., 1st October, 1980. All the necessary formalities were observed by the Investigating Officer in the presence of two independent witnesses Partap Singh Public Witness 2 and Ram Kishan Public Witness 10. The three currency notes of Rs. 100.00 each. Exhibits P/1 to P/3, which were to be delivered to Harbhajan Dass were treated with Phenol Phathalein powder and were returned to Basakha Singh after explaining to him the effect of that powder. He was also instructed to hand over the notes only on a specific demand to be made by Harbhajan Dass and he was to give an agreed signal to the raiding party after the bribe amount had been passed. Public Witness . 2 Partap Singh who is an Assistant Engineer in the Vigilance Department of Delhi Telephones was instructed to hear the conversation between Basakha Singh and the appellant herein and it was also impressed upon him to particularly watch the transaction of the handing over of the money.

(3.) At about 11a.m.the raiding party reached near foreign post office. The members of that party look up position near a tea stall situare near the boundary wall of the adjoining building. At about 1p.m. Harbhajan Dass along with one Suresh Kumar, a clerk in the same office and Jagdish Chander Public Witness ., a friend of Basakha Singh who had accompanied him to the foreign post office earlier on 29th September, 1980 as well as on 30th September, 1980, to find out about the delivery of the said 'car tape stereo' and in whose presence the appellant had agreed to reduce the duty on that stereo subject to the condition that he would be paid Rs. 300.00 by way of bribe, came out of the post office. On reaching the tea-stall the appellant told the complainant to accompany him and they started walking on Kotla Road which is by the side of the Foreign post office. While going together the appellant, it is stated, told Basakha Singh that he had reduced the duty on car stereo From Rs. 600.00 to Rs. 420.00 and that, thirefore, he should pay him Rs. 400.00 instead of Rs. 300.00 which he had demanded earlier. Basakha Singh showed his inability to do so as he had brought only Rs. 300.00 as per the demand. On that the appellant accepted the three G.C. notes offered by the complainant. On the agreed signal being given the Investigating Officer A.A. Khan (P.W. 11) who was walking on the other side of the road rushed towards the appellant and caught him by his left hand after disclosing him his identity. The case of the prosecution is that on hearing the name of Mr. Khan, Suresh Kumar the companion of the appellant who was also going along with him took to his heels. Some of the members of the raiding party chased him and apprehended him He was brought back to the place where the appellant and Mr. Khan were standing. It is stated that as Mr. Khan had caught hold of the appellant's left arm only, the appellant thus was able to take out the bribe money from the right pocket of his pants with his right hand. The prosecution case further is that lie folded the G C. notes in his right hand, put the notes in his mouth and swallowed them. It appears that an attenpt was made by a Sub-Inspector of Police, who was in the raiding party, to extract the currency notes from the mouth of the appellant but he was unsuccessful. Thereafter, hand-wash of the hands of the appellant was taken. The right pocket of the appellant's pant was also dipped into a solution of sodium carbonate and the three colourless solutions, it is stated, turned into pink. The solutions were sealed in three separate bottles. Formalities regarding the hand-wash being sealed into bottles etc. were gone into at a nearby house at Kotla Road. The prosecution case further is that the appellant was taken to Jaya Parkash Narayan Hospital for a stomach wash. The hospital authorities, however, referred the case to the police hospital as according to them there was no need to admit the patient. Endorsement referring the case to the police hospital has been proved as Exhibit Public Witness 11/C. The trap witnesses Partap Singh and Ram Kishan deposed to the facts which occurred at the police hospital. As the deposition of those witnesses on this aspect has a bearing on (he decision of this case, it is useful to notice that part of their statements. P.W.2 Partap Singh states "After the completion of proceedings at Kothi No. 44, I along with Ram Kishan, accd. Harbhajan Das DSP Mr. Khan and few other persons went in a car to LNJP Hospital, New Delhi. Mr. Khan instructed other members of the raiding party to take Suresh Kumar to the office of the C.B.I. in the other car. Mr. Khan DSP requested the doctor at the hospital for taking the stomach wash of the aecd. but he could not do so. From there we went to the police hospital where the stomach wash of accd. Harbhajan Dass was taken and x-ray was also taken. The stomach wash did not comain the currency notes and so it was not preserved, (emphasis added). Public Witness . 10 Ram Kishan slates "The accd. was then taken to J.P. Hospital for stomach wash. The doctor on duty however refused to assist in the matter. Then, the accd. was taken to Police Hospital. The accd. was made to vomit and x-ray and screening of stomach was also taken. Nothing however came out. He was then taken to Hindu Rao Hospital."