UMESH CHANDRA DAS Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE Appellant having been convicted under Section 161 IPC, and Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act, and sentenced to R.I. for one year under Section 161 IPC and also R.I. for one year and fine of Rs. 1,000/ -, in default to undergo R.I. for three months more under Section 5(2) of the Prevention of Corruption Act, with direction for the substantive sentences to run concurrently, has preferred this appeal.

(2.) THE accusation against the Appellant for which he has been found guilty is that he was the Additional Commercial Tax Officer attached to Kereda Check Gate in the border between Andhra Pradesh and Orissa and that he was demanding a bribe of Rs. 30 per each trip of truck passing through the check gate. P.W. 1 who owned truck No. ORK 3033 had a contract for transport of hume pipes from a factory at Vizianagaram for delivery to the Government of Orissa at Muniguda and for the purpose the transportation work started in the last week of January, 1981 extending to the month of February. P.W. 3 was the driver of the truck and he complained before P.W. 1 of the illegal demand by the Appellant for each trip. Faced with such harassment P.W. 1 along with P.W. 3 went to meet P.W. 4, the Secretary of the Jeypore Lorry Owners' Association and, reported him about the matter requesting him to contact the Appellant. P.W. 4 met P.W. 3 again on 10th February, 1981 and learning from him that the illegal exaction was continuing went the same day and met the Appellant at the Kereda Check Gate to dissuade him from enforcing such demand, but his request fell on deaf ears of the Appellant who replied that it was his practice which could not be altered. The Appellant is further stated to have demanded Rs. 50/ - from P.W. 4 as also a diary since he had come as the representative of the association. P.W. 4 while reminding the Appellant that the demand was unlawful, promised him to pay the money and give the diary on the next day, but having felt irritated at his conduct, went to the Vigilance Office at Rayagada learning that the Dy. S.P. was camping there and lodged information (Ext. 4) which was treated as the F.I.R. He was directed to come to the Vigilance Office next day at about 9 to 10 a.m. On the next day P.W. 4 met P.W. 3 at the Octroi Gate at Rayagada and both of them went to the Vigilance Office. He had carried an executive diary which he had purchased for Rs. 40/ - and had also taken a, currency note of Rs. 50/. He was met there by the Dy. S.P. (Vigilance); P.W. 8 the Vigilance Inspector and the I.O. and P.W. 2, a Sub -Inspector. Two other witnesses, the S.D.P.O. Rayagada and the Tahsildar, Rayagada who was an Executive Magistrate, respectively P.Ws. 5 and 6 came there after 12 noon. P.Ws. 3 and 4 were introduced to P.Ws. 5 and 6 and a personal search was taken of them which yielded only one fifty rupee note in the shirt pocket of P.W. 4 and nothing so far as P.W. 3 was concerned. The number of the fifty -rupees note was noted down by P.Ws. 5 and 6 in different pieces of paper and the number was also noted by P.W. 8. A demonstration was made by P.W. 2 in which P.W. 4 being asked, dipped his finger in sodium carbonate solution which gave no reaction. Thereafter his finger was again dipped in the solution after touching phenolphthalein powder on which the solution turned pink. Both the solutions were kept in separate sealed bottles. The currency note was smeared with phenolphthalein powder. The powder and the sealed bottles of solutions were kept back while the sodium carbonate solution was taken. The entire party proceeded to Kereda Check Gate in a jeep with instructions to P.W. 4 to hand over the currency note to the Appellant on demand The jeep halted, at the point the road leads to the quarters of the Appellant and P.Ws. 3 and 4 proceeded towards the quarters of the Appellant with the Constable remaining in between the jeep and the quarters of the Appellant. The Appellant was coming out of his quarters with a shirt on and enquired from P.W. 4 whether he had brought the diary and the money to which replying in the affirmative P.W. 4 handed over the diary and the note to him who kept the note in his left side, chest pocket. P.W. 3 gave signal by spitting and the other members of the raiding party immediately rushed towards the quarters and: accosted the Appellant. P.W. 8 challenged the Appellant having accepted the diary and the sum of Rs. 50/ - which was denied by him. P.W. 8 then prepared sodium carbonate solution in a pot and asked the Appellant to dip his finger which being done, the solution turned pink. The solution was preserved in a bottle and sealed. The Appellant than was asked to produce the contents of his pocket which he did. The contents contained currency notes of a total sum of Rs. 308/ - amongst which the tainted note was found the number of which was compared by the raiding party and found tallying with the number previously noted. The shirt pocket of the Appellant was also washed with freshly prepared solution of sodium carbonate and the same also turned pink which was preserved in a sealed bottle. The tainted note and the shirt of the Appellant were seized while the remaining amount was returned to the Appellant. Thereafter they proceeded to the check gate where the detection report Ext. 6 was written out. At that place personal search of P.Ws. 3 and 4 was again made, but nothing was found.

(3.) SINCE the Appellant has not disputed the recovery of the tainted note and the diary from his possession, a presumption would arise under Section 4(1) of the Prevention of Corruption Act of he having accepted the same for one of the purposes as mentioned under Section 161 IPC but the presumption, in terms of Section 4(1), would not be available so far as the charge under Section 5(1)(d) is concerned. It is of course true that though the presumption shifts the onus upon the Appellant to establish his innocence by rebutting the same, yet the onus is not as heavy as that on the prosecution.