RAMESHCHANDRA TUKARAM TALEKAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) A Division Bench consisting of our learned brothers A. N. Surti J. who is one of us now and A. M. Ahmadi J. has referred a question of considerable importance arising frequently in cases under the Prevention of Corruption Act 1947 (hereinafter referred to as the Act). This question arises in cases where the investigating agency which lays a trap which trap according to the prosecution has succeeded carries out the demonstration or experiment with the aid of phenolphthalein powder which is applied to the marked currency notes and as a result of the said experiment after the trap the fingers or the clothes of the accused or any part of his body are dipped in a solution of sodium bicarbonate and the result found is the turning of the solution which was white into pink. The question is whether that solution which has turned pink must be preserved by the investigating agency so as to enable its production before the Court trying the accused when necessary or whether the investigating agency with impunity can destroy that solution. If the answer to that question is that the investigating agency must preserve the solution the next question is what would happen on the failure or the omission of the investigating agency to do so. These two questions in our opinion require examination and answer by this Bench.

(2.) The facts giving rise tn these questions may be stated briefly. The appellant in this appeal original accused No. 1 together with another was charged with having demanded and accepted a bribe of Rs. 1000.00- for a new telephone connection while the appellant was acting as Sub- Divisional Officer (Telephones) in Valsad. He along with the co-accused is alleged to have accepted an amount of Rs. 1 0 as bribe for the aforesaid illegal gratification on February 14 1974 at Valsad. At the end of the trial the appellant came to be convicted under sec. 5 (2) read with sec. 5 (1) (d) of the Act and sec. 161 of Indian Penal Code whereas his co-accused was acquitted. He has been sentenced to rigorous imprisonment for two years and a fine of Rs. 2 0 with further R. I. of three months in case of default.

(3.) According to the prosecution at the time of the trap experiment to detect phenolphthalein powder on the hands of the appellant was carried out and the solution which was made of sodium bicarbonate turned pink on dipping the hands of the appellant therein. As against this the case of the appellant was that his hands were not dipped in the aforesaid solution. No attempt was made to get the solution produced in the trial Court. In course of cross-examination of the investigating officer in this case it was brought out that the solution which turned pink as a result of the aforesaid experiment (as per the prosecution cases was not preserved.