PANDYA RAJNIKANT CHIMANLAL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) All these appeals are arising out of the common impugned judgment and order dtd. 13/2/2009 by Special Judge, Fast Track Court No.1, Patan in Special ACB Case No. 1 of 2005 whereby both the accused in such case were convicted and sentenced is awarded as under:

(2.) Criminal Appeal No. 590 of 2009 is preferred by original accused No.2 Mr. R. C. Pandya whereas Criminal Appeal No. 598 of 2009 is preferred by original accused No.1 Mr. N. D. Vyas and Criminal Appeal No. 755 of 2009 is preferred by the State being prosecuting agency against both the accused for enhancement of sentence. Therefore, all these appeals are decided together by this common judgment and order.

(3.) The prosecution case before the Special Court is to the effect that the accused No.1 Mr. N. D. Vyas was serving as Police Sub - Inspector, was involved in activity of collecting money as a bribe and illegal gratification from the truck owners, who are passing from Radhanpur towards Ahmedabad, more particularly with coal contending that there is no permission to transport coal from one place to another. On receipt of such intimation, Investigating Officer Mr. H. B. Chavda, Police Inspector of ACB office at Palanpur has managed a dummy driver to offer a bribe and arrange a trap as alleged in the charge-sheet and thereafter confirmed that the trap was positive and hence, filed charge-sheet against both the accused. Therefore, the first and foremost fact is quite clear that actually there is no reason complaint or intimation about prior demand of any amount as bribe or illegal gratification by the appellants, which is punishable under the Act and which is the basic requirement for instituting any criminal proceedings against such accused. Thereby basic ingredients for conviction in such case i.e. prior demand is absolutely absent in the present case. To be more precise, it is to be noted again that in the present case, there is no complaint by anyone from the public or otherwise that accused have demanded illegal gratification and bribe, but complaint does not want to pay such amount and, therefore, he lodged a complaint and thereupon trap was arranged. Even at the cost of repetition, it is to be noted again that said Police Inspector Mr. Chavda of Banaskantha district at Palanpur has received a secret information that on Radhanpur - Varahi road, when trucks are transporting coal, officers of the police department, forest department and RTO department are collecting an amount between Rs.500.00 to Rs.10,000.00 as bribe by stopping such vehicle on highway from driver of such truck. Therefore, Police Inspector has called upon two Panch Witnesses namely Jayantilal and S. S. Chavda from the office of the District Panchayat of Banaskantha at Palanpur and raiding party was formed including ASI Mr. M. M. Joshi, A. B. Ghasura and M. V. Harsh and carry out the requisite exercise for trap on 25/5/2004 and drawn panchnama to that effect, which is proved on record at exhibit 38. Thereafter, they started in police Jeep No. GJ 1 G 986 at about 9:40 p.m. and about 5 kms away from Radhanpur, they were waiting with their Jeep for searching a truck transporting coal. At about 10:50 p.m. one truck bearing No. GJ 8 T 4465 has stopped where such raiding party was waiting. Such truck was driven by one Salimbhai Sipahi and one Dharmesh Thakkar, native of Viramgam but residing at Radhanpur at the relevant time was also travelling in the truck. Mr. Chavda has, therefore, inquired about coal loaded in the truck and witness Dharmesh has conveyed that he is owner of the coal and such 230 begs of coal are loaded from Chhansara village of Santalpur taluka and that owner of the truck is Girishkumar. Thereupon Police Inspector has conveyed secret information received by him regarding illegal activities by officers of different department and asked for corporation of Dharmesh, to arrange a trap/raid for which Dharmesh has agreed and, therefore, Police Inspector Chavda has given an amount in 20 currency notes of Rs.500.00 on which Mr. Harsh has applied powder and explained chemical test with sodium carbonate to the Dharmesh and Panch witnesses and instructed them that how trap is to be performed and how to assign signal by saying loudly that "driver bring machis" so as to enable raiding party to immediately raid the place where there is probability of passing off of currency notes meant as illegal gratification or bribe to the proposed accused. Thereupon they have at about 00:40 a.m. ask one panch witness as well as one decoyer to seat in cabin of the truck and started in two different vehicles i.e. truck and police jeep towards Tharad and at about 00:55 hrs they stopped at weighing bridge to weigh the truck. It is the case of the prosecution that thereupon when truck of the Dharmesh Thakkar was on weight bridge, accused No.1 has came in a Jeep and stopped the jeep in front of truck and accused No.1 has came out of the jeep and asked the decoyar and Panch No.1 who were sitting in the truck that what is lodged in the truck. Thereupon decoyar has conveyed the accused that truck is of Girish of Varahi which is taken on rent for transporting the coal from Chhansara to Morbi. It is further contended that during such inquiry when it was disclosed that the coal loaded in the truck are without permit, thereby, either stolen or illegal transportation of the coal, accused No.1 has asked the truck driver to take his truck at the police station so as to lodge a case and thereupon accused No.1 has taken his seat in his Jeep, and started towards Radhanpur.