LAVKESH GARG Vs. STATE OF H P

JUDGEMENT

(1.) Lovkesh Garg the present appellant is the son of original appellant Kanta Parkash Garg who has died during the pendency of this appeal. Lovkesh Garg has been granted leave to appeal to continue the present appeal by order dated 7-5-1997 of this Court. Late Kanta Parkash Garg (hereinafter called the appellant) had filed the present appeal against the judgment dated 20-11-1992 passed by Special Judge-II. Sirmaur District at Nahan whereby he was convicted of offence under Section 13 (2) of the Prevention of Corruption Act, 1988 and sentenced to under go simple imprisonment for two years and to pay a fine of Rs.3500/-. Since he deposited the fine in cash in the Court no further order for sentence in default of payment of fine was passed.

(2.) The matrix of the prosecution case is that on 23-3-1986 Ramesh Kumar (PW-2) and Jagdish Chand (PW4). shopkeepers from Paonta Sahib Bazar came to the residence of Shri RS. Gupta (PW1), the then Sub Divisional Magistrate. Paonta Sahib and complained that the appellant who was the then Food Inspector was demanding a bribe of Rs. 700/- from them. They further told that the appellant had visited their shop in the morning of 23-3-1986 and gave ultimatum that if the amount of Rs. 700/- was not paid to him on or before 2 P.M. on that day he would lift a sample of food articles from their shop and flour mill and get them punished under the Prevention of Food Adulteration Act. They also stated that during the earlier posting of the appellant as Food Inspector at Paonta Sahib he had taken 40 K. Gs. of Basmati Rice from them and had not paid price thereof and also that the appellant had threatened them that he would lift a sample of food article from their shop and flour mill whenever they raise demand of the price of said Basmati Rice. According to them the sample previously drawn by the appellant from their shop was found upto standards by the Public Analyst and they could not be challaned.

(3.) On receipt of the complaint Shri RS. Gupta called Shri Moti Ram Thakur the then Dy. S.P. at his residence and entire matter was brought to his notice by Ramesh Kumar and Jagdish Chand (PW5. 2 and 4). Thereafter, on the asking of Dy. S.P. Moti Ram Thakur, two local witnesses, namely Ram Partap (PW-3) and one Shri Mohtu Ram were brought by Ramesh Kumar and Jagdish Chand and in their presence the trap money of Rs. 700/- in the form of currency notes of Rs. 100/- denomination were produced by Jagdish Chand to Shri RS. Gupta, who appended his signatures on these currency notes and Dy. S.P. Mati Ram Thakur prepared memo Ext. PA in respect thereof which was signed by Shri R.S. Gupta and Ram Partap as witnesses. The currency notes were handed over to Ramesh Kumar by Dy. S.P. Moti Ram Thakur with instructions that he would come to the residence of appellant and hand over the money to him and thereafter give signal to Jagdish Chand who would be standing outside the residence of the appellant, who would give further signal to the raiding party and the raid would follow. This plan made by Dy. S.P. Mati Ram Thakur was implemented and as soon as the raiding party got the signal from Jagdish Chand it reached the residence of the appellant and on entering the room where the appellant was sitting on a cot and reading a book Dy. S.P. Moti Ram Thakur introduced himself to the appellant and expressed his resolve to conduct search of his person as well as his residence. The appellant was also informed of his right to conduct prior search of Mati Ram Thakur in order to rule out the possibility of his planting any incriminating material either on the person of the appellant or in the residence of the appellant. Accordingly, the search was made and the trap money was recovered from the drawer of the table lying just close to the table on which the appellant was sitting, and taken into possession by recovery memo Ext. PD which was signed by Shri RS. Gupta and other witnesses.