RUPSINGHBHAI PUNABHAI PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This Appeal is preferred against the judgment and order delivered by the Special Judge, Ahmedabad, on 21st of September, 1987, in Special Case No. 28 of 1986, convicting present appellant - accused for the offences punishable under Section 161 of the Indian Penal Code and also for the offence punishable under Section 5(1)(d) to read with Section 5(2) of the Prevention of Corruption Act, 1947. The present appellant for both the counts was sentenced to suffer rigorous imprisonment of one year and to pay fine of Rs. 100, in default, to suffer further rigorous imprisonment for one month. For both the counts, one sentence i.e. fine and imprisonment is awarded by the Special Judge to the appellant - accused.

(2.) The facts giving rise to the prosecution against the appellant can briefly stated as under: One Mr. Maurya serving as P.I. ACB, Amreli, was summoned by Mr. Anilbhai Pandya, Deputy Director, ACB, Gujarat State on 18th of October, 1985 in connection with pending ACB cases. Other Police Inspectors were also called from the State by the Deputy Director. On that day, i.e. 18.10.1985, Deputy Director Mr. Pandya informed P.I. Mr. Maurya that certain police personnel and RTO employees used to illegally obtain money from the Drivers of the motor vehicles plying on highway road surrounding Ahmedabad City. In this respect, Mr. Maurya, was directed by Mr. Anilbhai Pandya , Deputy Director, to lay a decoy trap. It appears that in pursuance of this special direction, a team was formed under the leadership of Mr. Maurya and he was assisted by H.H. Saiyed, PSI, H.H. Patel and other staff members of Anti Corruption Bureau Office of Palanpur including Police Head Constable Harshadbhai Pandya, Police Head Constable Navalsinh, a staff member of Anti Corruption Office of Ahmedabad. To lay a decoy trap, this team reached government guest house known as Pathik Ashram at Gandhinagar at 7.00 p.m. and occupied Room No. 39 on 18.10.1985. At about 10.00 p.m. on the the same day, an attempt was made to search independent panchas to be utilized in the said decoy trap. Mr. Maurya found two persons, named as Ramubhai Jivabhai Patel and Sureshbhai Ratilal Shah, both residents of Kathwada, as panchas from bus stand of Gandhinagar and after ascertaining their willingness, they were taken to Pathik Ashram. The panchas were introduced to other members of raiding party. It was decided that they would first go towards Narol via Chhala and Naroda and inquire from the drivers of motor vehicles plying on road, and if any of them volunteered to accompany them for laying the decoy trap, then such driver would be utilized as punter. A preliminary panchnama was prepared in the presence of above two panchas at 11.30 p.m. all of them in one police jeep started from Gandinagar and ultimately reached at Bhavada Three Roads at about 1.30 a.m. on 19th of October, 1985, travelling through Chhala, Naroda, Odhav and Balasinor Road. They temporarily stayed near Bhavada Three Roads and waited for arrival for some vehicles. At about 1.45 a.m. one truck loaded with logs of wood was found proceeding from Godhra to Ahmedabad. The said vehicle was stopped and driver was made to alight from the vehicle. It was found that the name of the driver was Siddiquebhai Ismailbhai, resident of Vejalpur, Godhra Taluka. He showed a pass issued from the Forest Department for transporting of logs of wood which were to be unloaded at Ahmedabad. The raiding party explained Siddiquebhai the purpose of their being at Bhavda Three Roads and asked Siddiquebhai whether he would be willing to be a decoy witness in the said trap. Driver Siddiquebhai expressed his willingness to assist and cooperate in the said decoy trap. Siddiquebhai thereafter along with panchas was taken inside jeep of ACB, and police Head Constable Navalsinh explained the utility of anthracene powder and ultra violet lamp. PI Mr. Maurya gave currency notes worth of Rs. 50/- to Police Head Constable Navalsinh consisting of one note of Rs. 20 denomination and three notes of Rs. 10 denomination. Numbers of such notes were noted in first part of panchnama. Thereafter from one brief case, a bottle of anthracene powder was taken out, and after placing currency notes on one plain paper with the help of cotton pod and paper, anthracene powder was smeared on all the currency notes of Rs. 50/-. Before that, those currency notes and hands of all of them were examined in light of torch, but no marks could be found, but after smearing anthracene powder on currency notes, in ultra violet lamp, hands of Police Head Constable Navalsinh and the currency notes of Rs. 50/- were found tainted with the marks of anthracene powder. Panch No. 2 Surendrabhai searched the person of Siddiquebhai and he found a pass and some currency notes from his shirt pocket, which were kept in his pant pocket, and his shirt pocket was kept empty. Police Head Constable Navalsinh thereafter at the instance of P.I. Maurya, complainant gave a fold to the muddamal currency notes of Rs. 50 and placed the same in the left side pocket of the shirt worn by Siddiquebhai, and the currency Note of Rs. 20 was first folded and other notes were kept in the fold of Rs. 20/-. Thereafter, Police Head Constable Navalsinh burnt that paper, cotton pod, piece of cloth, etc. and kept the bottle of anthracene powder in the brief case which they had carried was locked, and the key was handed over to panch No. 2. Police Head Constable Navalsinh washed his hands by soap. Then the hands of all the members of the raiding party present there, were examined in ultra violent lamp, but all the hands were found clean. Driver - Siddiquebhai was instructed that he should keep panch No. 1 Ramubhai along with him in the cabin of the truck and should proceed in the truck towards Ahmedabad, and if any police personnel or RTO employee attempts to stop his vehicle on the road, he should stop, and if he was asked to give the amount of bribe, after suitable reply, he should give the currency notes of Rs. 50/- placed in the pocket of his bush shirt, and after the said amount was accepted by would be accused, then, he should give a signal by lighting beedi, and except that, he should not touch those currency notes or the shirt pocket. Panch No. 1 Ramubhai was instructed to remain in company with the Driver Siddiquebhai in the cabin of the motor truck as well as thereafter and to hear and observe whatever might take place between would be accused and the Driver Siddiquebhai. The panch No. 2 and other raiding party members were instructed to occupy the official jeep to follow the truck driven by Siddiquebhai and if truck stop then to come out of the jeep and arrange themselves to remain near the said motor truck of Siddiquebhai. Navalsinh was instructed to remain with them with ultra violet lamp. They were instructed that if a signal was made as aforesaid, raiding party members and panch No. 2 to reach at the proper spot. Thus, Siddiquebhai, Driver of the motor truck, panch No. 1 and cleaner of the truck occupied cabin of the truck while others sat in the official ACB car, and both the vehicles started towards Ahmedabad. When the said truck reached near Soni's Chawl Cross Roads on Odhav road in Ahmedabad, the present appellant was standing there in his police uniform, raised his hand and directed the said truck to stop. Siddiquebhai halted the said motor truck by taking it towards Naroda Road and got down along with panch No. 1 from the truck. Both of them went near the side where the present appellant was standing. The appellant asked Driver Siddiquebhai that what was loaded in the said truck. Siddiquebhai replied that he had brought logs of wood from Godhra to be delivered at Ahmedabad. The accused - appellant further inquired from Siddiquebhai whether he was brining liquor, to which Driver Siddiquebhai denied. The appellant then demanded pass from Siddiquebhai, which he handed over to the appellant and appellant kept the same in his hand. By that time, the jeep car which was following the truck had reached and was halted half a furlong away from the said truck and panch No. 2 and other raiding party members got down from the jeep and scattered around the truck on the eastern side. During the conversation between the appellant and Driver Siddiquebhai, as aforesaid, PSI Patel, one Police Constable and panch No. 2 of the raiding party reached near the driver Siddiquebhai panch No. 1 and the appellant. The appellant asked referring to these three persons that who they were and whether they were the passengers. Driver Siddiquebhai replied to the appellant that they were the labourers of the truck. Thereafter, the appellant instructed Driver Siddiquebhai to give money for tea and water because that was the first transaction of the day, colloquially known as Sbonnie . The driver Siddiquebhai asked appellant as to what amount he was required to pay. The appellant - accused instructed to give Rs. 20/- and thereafter Driver Siddiquebhai took out with his right hand currency note of Rs. 20/- out of that muddamal currency notes of Rs. 50/- from the left side upper pocket of the shirt and gave the same to the appellant and he placed the remaining three notes each of Rs. 10/- in his shirt pocket. The appellant thereafter handed over the pass issued by the Forest Department and he examined the note given by Siddiquebhai in the street tube light. At that juncture, PSI Patel and other Constable who were present there, caught hold of the hands of the accused and informed the appellant - accused that they were the members of Anti Corruption Bureau, and at that juncture, the appellant thrown the currency note of Rs. 20/- on the foot path. At that time, Mr. Maurya and other members of the raiding party reached at the spot and disclosed their identity and asked the name and address of the appellant, which he replied. At at that time. the present appellant was working as PSI, Odhav Police Station and was in uniform. Driver Siddiquebhai appraised Mr. Maurya about the demand and acceptance of the bribe amount of Rs. 20/- by the appellant. Panch No. 1 Ramubhai Jivabhai, upon direction of Mr. Maurya picked up currency note of Rs. 20/- from the foot path with his right hand and thereafter ultra violet lamp experiment was carried out. Except panch No. 1, appellant and Siddiquebhai, the hands of all were examined in ultra violet lamp but no anthracene powder marks was found, while hands of panch No. 1, Siddiquebhai and the appellant, as described in the panchnama, were found tainted with anthracene powder. The uniform worn by the appellant was also examined in the rays of ultra violet lamp, but no marks were found on the uniform, while it was found that the upper side pocket of Siddiquebhai was emitting powder marks in the rays of ultra violet lamp, and inside the pocket, there were three remaining currency notes each of Rs. 10/-. Driver Siddquebhai took out those three notes from his pocket and gave those notes to Mr. Mauraya. This experiment was done by PHC Navalsinh. Thereafter, the muddamal currency notes of Rs. 20/- which was picked up from the foot path was also examined in rays of ultra violet lamp and the note was found tainted with anthracene powder marks. The person of the appellant was searched as per direction by Panch No. 2 and from his person, Rs. 11/- was found from his pocket and the same was returned to him. It was verified with the numbers of the notes of Rs. 20/- with the numbers written in the first part of panchnama and they were tallied. Thereafter, panchnama was prepared of this proceeding and completed at 4.10 a.m. On 19th of October, 1985. The accused - appellant was kept at Odhav Police Station and Driver Siddiquebhai was allowed to go along with his truck and the panchas were also allowed to go. PI Maurya thereafter went to the office of Anti Corruption Head Office and filed a complaint which was registered as First Information Report. One Mr. P.I. Patil was entrusted with the investigation of the said crime registered as ACB Crime No. 13 of 1985, but he did not carry out any investigation and thereafter one P.I. T.V. Yadav, who was then attached to ACB Head Quarters at Ahmedabad was directed to investigate the case by the Director and he recorded the statements of the raiding party members and complainant and panchas. Necessary procedure was carried out for obtaining sanction to prosecute the appellant from the disciplinary authority i.e. Commissioner of Police, Ahmedabad City and Additional Commissioner of Police, Ahmedabad City, accorded sanction first on 21st of April, 1986 but since the error had crept in that sanction, a revised sanction was accorded by the disciplinary authority on 15th of May, 1986. PI Mr. Yadav arrested the accused appellant and submitted a charge sheet against him.

(3.) A charge for the offences punishable under Sections 5(1)(d) to read with Section 5(2) of the Prevention of Anti Corruption Act, 1947 along with Section 161 of the IPC was framed against the appellant vide Exhibit 4 on 1st of January, 1987, to which the accused pleaded not guilty and hence the prosecution examined as many as 8 witnesses to prove its case. Prosecution has also placed on record, documentary evidence like First Information Report, panchnama Exhibit - 13, copies of the log book of mobile van of Odhav Police Station at Exhibits 30 and 31, Pass issued by the Forest Department at Exh. 18, Octroi Receipt for the amount paid by Siddiquebhai at Naroada Octroi Post vide Exhibit 19 and various correspondence exchanged between Director of ACB Office and Commissioner of City of Ahmedabad about sanction by various letters. The sanction which is relied upon by the prosecution as accorded by the then Additional Commissioner of Police, is placed at Exhibit - 40 which is dated 15th of May, 1986. Earlier sanction accorded by Additional Commissioner is produced on the record at the instance of appellant at Exhibit-53.