ROOPSINH AMARSINH NAVI v. STATE OF GUJARAT

accused under Section 374 of the Code of Criminal Procedure, 1973, (for short "Cr.P.C.") against the judgment and order of conviction and sentence dated 05/09/2007 passed by the learned Special Judge, Fast Track Court No.4 (hereinafter referred to as "the Trial Court"), Vadodara in Special (ACB) Case No.13 of 1998, whereby, the present appellants have been convicted for the offence punishable under Sections 7, 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 (for short "the Act"). The appellant Nos.1 to 3 are ordered to suffer simple imprisonment for a period of 1 year with fine of Rs.1,000/-, and in default of payment of fine, to suffer further simple imprisonment for a period of 2 months for the offence punishable under Section 7 of the Act. The appellant Nos.1 to 3 are also further ordered to suffer simple imprisonment for a period of 2 years with fine of Rs.2,000/-, and in default of payment of fine, to suffer further simple imprisonment for a period of 6 months for the offence punishable under Section 13(2) read with Section 13(1)(d) of the Act. Whereas, the appellant Nos.4 and 5 are also held guilty for the offence punishable under Section 12 of the Act and are ordered to suffer simple imprisonment for a period of 1 year with fine of Rs.1,000/-, and in default of payment of fine,

Page 2 of 43

to suffer further simple imprisonment for a period of 2 months for the offence punishable under Section 12 of the Act..

2. The brief facts giving rise to the present appeal are as under :

2.1 As per the version of the complainant, it is alleged that the Police Inspector, Shri L.P. Solanki, ACB Branch, Ahmedabad (PW-3) received private information from the informant that the local traffic police personnel and RTO personnel used to collect illegal money in the name of entry fee from the truck- drivers on the Ahmedabad-Vadodara by-pass road and that they used to get Rs.20/- to Rs.400/- from the truck-drivers in the name of entry fee illegally. It is further alleged that as per the version of the complainant, P.I., Shri Solanki had received perfect information regarding collection of illegal money in the name of entry fee and, therefore, P.I. (ACB) Shri Solanki had decided to lat decoy trap on 2^ndDecember, 1997.

2.2 Accordingly, on 2^ndDecember, 1997, P.I. Shri solanki called two panchas from PWD Office, Ahmedabad, namely Kanaiyalal Babubhai Dataniya (PW-2) and Hirendra Chinubhai Shah and they were instructed to act as panchas during the

Page 3 of 43

trap. Thereafter, they reached near Kanera village on the N.H. No.8, where they stopped one Truck bearing registration No. RJ-19-G-7804 near Defence Colony. As per the version of the complainant, the facts regarding the trap were explained to the truck-driver - Shri Ruparam Umaram Chaudhary (PW-1) and he was ready to participate in the trap. Thereafter, three currency notes of Rs.100/-, two notes of Rs.50/- and five notes of Rs.10/- total Rs.450/- were produced by P.I. Shri Solanki and the numbers of those currency notes were noted down in the Panchnama and thereafter, ACB Head Constable- Shri Pratapsinh Zala was asked to do the test of

anthracene powder and ultra violet lamp on the said currency notes. Accordingly, Mr.Zala took out anthracene powder and lamp. As per the version, the notes were shown to the panchas and the truck-driver in ordinary light. However, no stains or marks were noticed on the same. As per the version of the complainant, Mr.Zala showed his hands in the ordinary light and nothing was noticed on the same and even after putting the ultra violet lamp, no stains and marks were noticed either on the hand or on the currency notes. Thereafter, he took out the bottle containing anthracene powder and the currency notes were placed on a blank paper and anthracene powder

Page 4 of 43

was applied to the notes on both the sides. The notes were thereafter, shown in the ordinary light. However, nothing was noticed on the said notes. Thereafter, the said notes were kept in front of the ultra violet lamp and emission of light blue colour was noticed. The said emission of light blue fluorescent was also found on the finger tips of Lamp Operator - Shri Zala was asked to keep the tainted currency notes in the left pocket of the pant of the truck-driver Ruparam and accordingly, he kept the currency notes of Rs.450/- in the left pocket of the pant of the truck-driver.

2.3 As per the version of the complainant, after preparing the First Part of the Panchnama, the raiding party headed by P.I. (ACB) Shri Solanki, Head Constable - Shri Zala, Shri Bhavanji Gaur and SRP Constable- Shri Ramesh S. Vasava had proceeded towards Vadodara by-pass Highway in Matador bearing registration No.GJ-9-T-1347, whereas, the panch No.1, P.I. - Shri Puvar, P.I. - Shri D.S. Patel, SRP Constable - Ghanshyam V. Solanki, Shailesh S. Gamit had gone with the truck-driver in Truck No.RJ-19-G-7804. The said Truck was going ahead of the Matador and the Matador was proceeding just behind the Truck. When they reached near Karjan at

Page 5 of 43

"Stone No.35", one Jeep of State Highway Police was parked on the middle of the road. The Police Constable - Roopsinh Amarsinh (accused No.1) and Shivaji Uttam Patil (accused No.2) were standing near the Police Jeep in the police uniform. One another traffic constable was also there and the private persons weer also present there with the police personnel. Two private persons were standing on the middle of the road and as per the say of the police personnel, they used to stop the vehicle on the road. It is further alleged that the truck-driver - Ruparam had stopped his truck on the spot on the left side and on gesture from the police, one private person Karimsha Kasamsa Fakir (accused No.4) came there and demanded Rs.50/- from the truck-driver - Ruparam as an entry fee. The truck-driver tried to negotiate with the accused No.4 and told him to take Rs.20/-. But, the accused No.4 did not agree and therefore, the truck-driver took out tainted currency note of Rs.50/- from the left side pocket of his pant and delivered the same to Karimsha Kasamsa (accused No.4), who accepted it from his right hand and placed it into right side pocket of his pant and at that time, the police personnel (accused Nos.1 to

3) were standing near the Police Jeep at the distance of 20 feet. After making pre-arranged signal by the truck-driver, the

Page 6 of 43

panch No.1, ACB Constables and SRP Constables got down from the truck and surrounded Karimsha (accused No.4). Thereafter, P.I. - Shri solanki and the members of the raiding party rushed at the place and caught Karimsha (accused No.4). At that time, the private person - Devidas Baburao Patil (accused No.5) and other police constables (accused Nos.1 to

3) tried to run away from the place but, they did not succeed. But one Police Constable - Bahadurkhan Maskhan Pathan (accused No.3) was succeeded to run away.

2.4 As per the version of the complainant, the statements of the accused persons were taken by P.I. - Shri Solanki and collected the muddamal articles on the spot. Thereafter, P.I. - Shri Solanki went to ACB Office, Vadodara and lodged the complainant in writing before P.I. - Shri Rakesh Baldevprasad Sharma (PW-5). Accordingly, the offence against the accused persons - appellants herein was registered bearing FIR No.20/97 under Sections 7, 12, 13(1)(d) read with Section 13(2) of the Act, which was investigated by the Investigating Officer - Shri Rakesh Baldevprasad Sharma (PW-5).

2.5 The A.C.B. police investigated the offence and submitted

Page 7 of 43

the charge-sheet against the appellants for the offences as above, and the case against the appellants was committed to the learned Special Judge (Fast Track Court No.4), Vadodara, which was numbered as Special (ACB) Case No.13 of 1998.

2.6 That the learned Special Judge framed charge of aforesaid Sections against the appellants. The appellants pleaded not guilty to the charge and claimed to be tried. In order to bring home charge, the prosecution has examined several witnesses and also produced documentary evidence before the Trial Court, which is as under :-

Oral evidence :-

1. Ruparam Umaram - Decoy witness Exh.-13 (PW-1) (Truck driver)

2. Kanaiyalal Babulal Dataniya - Panch Witness No.1 Exh.-18 (PW-2)

3. Laxmansinh Parvatsinh Solanki - Trapping Officer Exh.-23 (PW-3)

(PI,ACB)

4. Kuldip Sharma - Sanction Authority Exh.-31 (PW-4)

5. Rakesh Baldevprasad Sharma-Investigating Officer Exh.-35(PW-5)

Documentary Evidence :-

1. Driving License of Truck driver, Permit for Public Carrier, National permit and Insurance Policy of Truck bearing No.RJ- 19-G-7804 Exh.-14

2. Panchnama of Trap Exh.-19

Page 8 of 43

3. Seizure memo of currency notes recovered from the accused No.4 Exh.-20

4. Seizure memo of currency notes recovered from the accused No.1 Exh.-21

5. Seizure memo of currency notes recovered from the accused No.5 Exh.-22

6. Complaint Exh.-24

7. Letter written by PI, Shri Solanki (ACB) to the Executive Engineer (PWD), Ahmedabad, for providing panch witness Exh.-25

8. Chit of article muddamal signed by the trapping officer as well as panchas Exh.-26

9. Chit of article muddamal signed by the trapping officer as well as panchas Exh.-27

10. Chit of article muddamal signed by the trapping officer as well as panchas Exh.-28

11. Chit of article muddamal signed by the trapping officer as well as panchas Exh.-29

12. Chit of article muddamal signed by the trapping officer as well as panchas Exh.-30

13. Sanction letter by the Sanction Authority Exh.-32

14. Letter by the Deputy Police Superintendent, STB, Ahmedabad addressed to PI, ACB Vadodara, providing necessary information regarding accused Nos.1 to 3 Exh.-36

15. Letter by the Deputy Administrative Officer from the Office of Police Commissioner, Vadodara addressed to PI, ACB Vadodara, enclosing necessary documents regarding accused Nos.1 to 3 (document Nos.1 to 4) Exh.-37

2.7 After examination of the witnesses in detail and after

Page 9 of 43

considering the documentary evidence and after hearing arguments advanced by both the sides, the learned Special Judge has passed the impugned judgment and order of conviction convicting the appellants for the offences as mentioned above.

2.8 Feeling aggrieved and dissatisfied with the impugned judgment and order of conviction, the appellants - original accused have filed the present appeal under Section 374 of the Code of Criminal Procedure, 1973.

3. Heard Mr.K.B. Anandjiwala, the learned senior counsel assisted by Mr.S.P. Majmudar, the learned counsel appearing for the appellants and Ms.C.M. Shah, the learned APP appearing for the respondent - State of Gujarat.

4. Mr.K.B. Anandjiwala, the learned senior counsel for the appellants has submitted that the evidence of the truck-driver and panch witnesses is not trustworthy and reliable and therefore, no reliance can be placed on it. He submitted that panch witness should be of sterling quality. He has submitted that the truck-driver (PW-1) has been declared hostile and

Page 10 of 43

therefore, his evidence does not inspire confidence. He has submitted that on perusal of the cross-examination of the truck-driver, it transpires that the appellants accused never demanded bribe from him. He has submitted that the truck- driver has denied to identify the accused persons and also the muddamal articles shown to him before the Court and therefore, he has not supported the case of the prosecution. He has submitted that some part of the cross-examination cannot be taken into consideration, it has to be read as a whole.

4.1 Mr.Anandjiwala, the learned senior counsel has further submitted that the panch witness, in his evidence at Exh.-18, has also denied to identify the accused by name and the muddamal articles. He has submitted that the panch witness has further admitted that no one police constable demanded money from the truck-driver. He has submitted that the panch witness has admitted that the Panchnama was neither written in the presence of the panchas nor it was written as per the say of the panchas, but it was written by the officer concerned and the panchas has only put their signatures. He has submitted that the said panch witness had no knowledge

Page 11 of 43

regarding the Panchnama and therefore, he has deposed before the Court only after referring the copy of the Panchnama and the said panch witness is also an offender of Section 302 of the Indian Penal Code.

4.2 It was submitted by the learned senior counsel Mr.Anandjiwala that before laying trap, the Trapping Officer did not inquire about the background of the panch witness and in such cases, the background of the panch witness should not be ignored while appreciating the evidence and therefore, the deposition of panch No.1 is not credible, reliable, trustworthy and acceptable and thus, the prosecution has failed to establish their case against the appellants accused. He has submitted that the Trapping Officer did not disclose the name of informant who had given the secret information to him, on the basis of which the trap was laid. He has submitted that the Trapping Officer failed to inquire the background of the panch witnesses and no history of panch witnesses mentioned in the Panchnama. He has submitted that the Trapping Officer had engaged the truck-driver of Rajasthan State in laying the trap and the truck-driver could not speak and understand Gujarati language. According to the Trapping Officer, the truck-driver

Page 12 of 43

knew Gujarati language, but the panch No.1 did not support the version of the Trapping Officer. He has further submitted that there was lot of trucks from Gujarat State as well as local trucks coming on the road, however, the Trapping Officer had chosen only truck-driver of Rajasthan State, who did not know Gujarati language and therefore, it creates a doubt in arranging the trap.

4.3 Learned senior counsel Mr.Anadjiwala has further submitted that the statement of truck-driver was necessary to be recorded in this case but, the Investigating Officer did not record the statement of the truck-driver and therefore, the investigation carried out by the Investigating Officer is also defective. He has submitted that no anthracene powder was detected, except on the hands of accused No.4 and the accused Nos.1 to 3 had gone in the jeep to control the traffic on the highway. They had not arranged the private persons to collect the money as alleged by the prosecution. He has submitted that there were some public trying to board the truck and on seeing the police constable with rifle, they ran away from there and in doing so, two private persons i.e. accused Nos.4 and 5 were caught by ACB Constables. He has

Page 13 of 43

submitted that the accused Nos.1 to 3 were sitting in the jeep and the jeep was at far distance from the truck and the accused had never demanded and accepted money from the truck-driver as alleged. He has further submitted that there was no demand and acceptance proved by the prosecution and the amount recovered from the accused were their personal savings. He has further submitted that it is well settled law that mere recovery of money from the accused, it is not sufficient ground to convict the accused.

4.4 It was submitted by the learned senior counsel Mr.Anandjiwala that the appellants accused are innocent persons and they are falsely implicated in the alleged offence. It was further submitted that the test of anthracene powder was not carried out by the expert and no expert was examined by the prosecution for detection of anthracene powder from the hands of accused No.4 and thus, the prosecution case is doubtful. He has further submitted that the accused have given the explanation in their further statement. He has submitted that the prosecution is required to prove beyond reasonable doubt the demand,recovery and acceptance of illegal gratification. He has submitted that there is nothing on

Page 14 of 43

record to show that the accused had demanded illegal gratification from the truck-driver and thus, the prosecution has failed to establish demand and acceptance and therefore, the question of presumption under Section 20 of the Act does not arise in this case.

4.5 Learned senior counsel Mr.Anadjiwala has further submitted that the Panch Witness is a government servant and he would not be independent and would support the case of the prosecution under the hanging sword of departmental action, and therefore, the evidence of the panchas cannot be reliable, as the panch had no knowledge about the Panchnama and he has deposed before the Court after referring the Panchnama. He has further submitted that when the whole case hinges also on the evidence of panchas in a trap case, the selection of panch witness must be credible, reliable and independent and in the present case, the truck-driver and the Panch Witness does not inspire confidence to prove that the accused have accepted the amount of bribe. He has further submitted that there is no corroboration of testimony with each other and therefore, the accused should be acquitted from the charges levelled against them.

Page 15 of 43

4.6 Learned senior counsel Mr.Anadjiwala has further submitted that the prosecution has miserably failed to establish the case against the appellants accused with regard to illegal gratification beyond reasonable doubts and thus, the impugned judgment and order of conviction and sentence is erroneous, illegal and bad in law. He has further submitted that the prosecution has not proved the preliminary ingredient of illegal gratification namely, demand, beyond reasonable doubts by leading cogent and material evidence and therefore, mere acceptance or recovery of the amount does not constitute an offence. He has further submitted that this is a case of decoy, wherein, the driver used to be the main witness, and in the present case, the truck-driver - Ruparam Umaram (PW-1) has not supported the case of the prosecution and declared hostile and therefore, relying upon the evidence of the panchas and the Trapping Officer, the Trial Court has recorded the conviction and sentence, which is bad in law and, illegal and erroneous. It is also further submitted by the learned senior counsel Mr.Anandjiwala that except the evidence of the Trapping Officer, there is no other independent evidence has came on record to connect the present

Page 16 of 43

appellants accused with the crime in question and thus, the impugned judgment and order of conviction and sentence is against the settled principles of law. He has further submitted that as there is no material came on record with regard to the demand raised by the appellants Nos.1 to 2, which is the prime ingredient, so far as the offence under the Prevention of Corruption Act is concerned, there is no evidence worth the name led by the prosecution. Over and above the grounds enumerated in the memo of appeal, the learned senior counsel urges before the Court that the impugned judgment and order of conviction is bad in law and against the settled principles of law and against the facts of the present case and the same may be quashed and set aside and the appellants be acquitted from the charges levelled against them.

4.7 Learned senior counsel Mr.Anandjiwala, in addition to his contentions, has submitted his written submissions and has referred to and relied upon the following decisions of the Hon'ble Apex Court as well as this Court in support of his submissions :

[I] Neeraj Dutta Vs. State (Govt. of N.C.T. of Delhi), reported in

Page 17 of 43

[2023] 4 SCC 731, Criminal Appeal No.1669 of 2009; [II] N. Vijaykumar Vs. State of Tamil Nadu, reported in [2021] 3 SCC 687;

[III] Dinkar Bapurao Deokar Vs. State of Maharashtra, reported in [2016] CRI.L.J. 3588;

[IV] Kishorbhai Meghjibhai Gohil Vs. State of Gujarat, reported in [2015] CRI.L.J. 3649;

[V] Ratuji Varvaji Vaghela Vs. State, reported in [1998] 2 GCD

2157.

5. On the other hand, Ms.C.M. Shah, the learned APP appearing for the respondent - State has vehemently opposed the present appeal and contended that the prosecution has proved the charge levelled against all the appellants accused beyond reasonable doubts by leading cogent and material evidence before the Trial Court and therefore, the learned Trial Court has not committed any error worth the name while convicting the present appellants accused. Learned APP Ms.Shah has emphasized upon the evidence of PW-1 - Ruparam Umaram (Exh.-13), being a decoy witness (Truck- driver), PW-2 - Kanaiyalal Babulal Dataniya (Exh.-18), being a panch witness, PW-3 - Laxmansinh Puratsinh Solanki (Exh.-23)

Page 18 of 43

being a Trapping Officer and PW-4 - Kuldip Sharma (Exh.-31) being an Officer, who had accorded sanction for prosecution against the appellant Nos.1 to 3 and has pressed the grounds into service that from the evidence of all these witnesses, the prosecution has clearly established the charge against all the accused persons for the alleged demand of illegal gratification and thus, the impugned judgment and order of conviction and sentence is in accordance with law and in consonance with the facts of the present case.

5.1 Learned APP Ms. Shah has further contended that PW-2, who is the independent witness, has fully corroborated the case of the prosecution and by the deposition of PW-3 being a Trapping Officer the prosecution has been able to establish the charge levelled against the appellants accused and since they are the government officers or the Trapping Officer, their deposition cannot be doubted or their evidence cannot be brushed aside only because they are government officers and they are bound to depose before the Court with a view to prove the charge levelled against the accused persons and therefore, the learned APP Ms.Shah has urged before this Court that on all counts, the present appeal fails and the impugned

Page 19 of 43

judgment and order of conviction and sentence passed by the Trial Court is in accordance with the settled principles of law and no interference is required to be called for and the present appeal, being meritless, be dismissed and the impugned judgment and order of conviction be confirmed.

5.2 Learned APP Ms.Shah has also submitted her written submissions and has referred to and relied upon the following decisions of the Hon'ble Apex Court as well as this Court in support of her submissions :

[I] Ravindranath Maganbhai Prajapati Vs. State of Gujarat, reported in 2014 (0) AIJEL_HC 231893;

[II] Abdul Majid Abdul Hak Ansari Vs. State of Gujarat, reported in [2003] 10 SCC 198;

[III] State of U.P. Vs. Zakaullah, reported in 1998 CRI. L.J. 863; [IV] State (Delhi Administration) Vs. Dharampal, reported in [2001] 10 SCC 372;

[V] M. Sarvana alias K.D. Sarvana Vs. State of Karnataka, reported in [2012] 7 SCC 636;

[VI] Shyamal Ghosh Vs. State of West Bengal, reported in [2012] 7 SCC 646;

Page 20 of 43

[VII] Vahaji Ravaji Thakore & Anr. Vs. State of Gujarat, reported in [2004] 1 GLR 777;

[VIII] State, represented by Inspector of Police, Vigilance & Anti-Corruption, Tiruchirapalli, T.N. Vs. V. Jayapaul, reported in [2004] 5 SCC 223;

[IX] Rambhau And Another Vs. State of Maharashtra, reported in [2001] 4 SCC 759.

6. I have heard the learned advocate appearing for the respective parties and perused the material placed on record. After going through the evidence and after detailed examination, the following questions arose for determination or consideration for this Court viz. (i) that, whether in case of decoy, if the punter is not supporting the case of the prosecution, the case of the prosecution can be disbelieved only on that count or not; (ii) that, whether the prosecution proved the charge by adducing the evidence of independent witness being the panch witness which is corroborated and supported by the evidence of the I.O. and referred to and relied upon by the Trial Court and whether the Trial Court has committed any error while passing the impugned judgment and order of conviction and sentence or not; (iii) that, whether

Page 21 of 43

the Trial Court was right in convicting the appellants accused for the charge levelled against them on the basis of the evidence which came forthwith on record and while appreciating the evidence, whether the Trial Court has committed any error or not. Why the appellants accused can be held guilty, for that the circumstances narrated hereunder is clinch and connect the appellants accused for this commission of crime charged against them, namely, (i) that, though the duty hours of appellant Nos.1, 2 and 3 were getting over, they were found at the place of decoy with the vehicle allocated to appellant Nos.1 and 3 and for that, there is no explanation worth the name was tendered by the appellant Nos.1, 2 and 3; (ii) that, the currency notes of different denominations were found from the possession of the appellant Nos.1 and 2 and from the wooden box in the jeep car allocated to appellant Nos.1 and 3 and for that, there is no explanation worth the name was tendered; and (iii) if neither of the appellants were involved in the offence of illegal gratification in the name and label of entry fees then why, the appellant No.3 fled away from the spot of decoy. All these circumstances lead to only and only doubt that the appellant Nos.1 to 3 were collecting the amount of illegal gratification

Page 22 of 43

through the help of appellant Nos.4 and 5 and considering all these aspects, I answer accordingly.

6.1 The case against the appellants accused is that, the appellant Nos. 1 to 3 are serving in the police department and they are posted in the traffic police and the appellant No. 2 is a police constable and posted as a driver of the traffic police vehicle and appellant Nos.4 and 5 are accomplished to the appellant Nos. 1 to 3. On the date of the decoy, the Trapping Officer, upon information received, has arranged the decoy and for that he had intercepted the vehicle of PW-1 - Ruparam Umaram being a truck-driver, who was on root from Rajasthan to Gujarat in his truck bearing No. RJ-19-G-7804 having license and pass permit and while he was intercepted by the Trapping Officer for the purpose of helping the Trapping Officer in arranging the decoy, he was made to understand that he would have to come and co-operate for the said decoy and therefore, he was given all the information relating to the decoy and was also given tainted currency notes. When PW-1 reached near the place of decoy, he was intercepted by the appellant No. 4 by raising hands and on asking, PW-4 had demanded an amount of Rs.50/-. When PW-1

Page 23 of 43

entered into an interaction with appellant No.4 for reduction of the amount, the appellant No. 4 did not agree and he demanded the earlier amount and therefore, PW-1 handed over the tainted currency note of Rs.50/- denomination in the hands of appellant No. 4 and while accepting the same, appellant Nos.1 and 2 were present near the traffic vehicle and PW-2 and 3 had immediately came out from their respective vehicles and while arrest, the appellant No. 3 succeeded in fleeing away from the place and rest of the appellants came to be arrested from the spot. This fact itself suggests that all the appellants accused, in connivance with each other, have committed the offence as charged against them and they have actively participated in the offence. While going through the evidence of PW-1, though he was declared hostile, his evidence suggests that the appellant No. 4 had demanded an amount and PW-1 had handed over the tainted currency note to appellant No. 4 and this fact has corroborated the case of the prosecution and this part can be used against the appellant No.4. Though PW-1 is declared hostile, his whole evidence cannot brushed aside and cannot be thrown away, therefore, the contention raised by the learned APP Ms.Shah is deserves to be accepted and the evidence of PW-1 qua

Page 24 of 43

corroborates the case of the prosecution can be considered.

6.2 So far as the evidence of panch witness PW-2 is concerned, learned senior counsel Mr.Anandjiwala has strongly contended that the evidence of PW-2 cannot be taken into consideration as PW-2 being convicted for a criminal offence and was convicted for life for the offence punishable under Section 302 of the IPC and in his cross-examination, he has admitted this fact that he has deposed before the Court verbatim as written in the Panchnama that if he does not depose verbatim as stated in the Panchnama, the department shall take action against the said employee and initiate departmental inquiry and therefore, under these circumstances, he had deposed before the Court and supported the case of the prosecution and therefore, he cannot be termed as an independent witness and his evidence cannot be referred and relied upon by the Trial Court and the Trial Court has committed a serious error while appreciating the evidence of this PW-2.

6.3 As against that, the learned APP Ms.Shah has vehemently contended that at the time of decoy, he was merely a

Page 25 of 43

government servant and there was no any criminal case registered against the said witness and therefore, his evidence cannot be brushed aside, since he has fully supported the case of the prosecution hence, corroborates the evidence of PW-3 - Trapping Officer and therefore, the present appeal being meritless, be dismissed.

6.4 In my view, while closely looking to the evidence of PW-2, it appears that he has fully corroborated the case of the prosecution and has also identified the accused in the Court, though he has stated that he was unable to identify by name but, has identified by their face, therefore, he has identified all the appellants before the Court and in cross-examination also, there is no illicit material culled out by the defence and therefore, his evidence cannot be considered as shaking or cannot be brushed aside nor can be doubted, merely because, he was subsequently involved in some serious criminal offence and convicted for the same, his evidence cannot be doubted, and therefore, the Trial Court has not committed any error while appreciating the evidence of PW-2, namely Kanaiyalal Babulal Dataniya.

6.5 So far as the evidence of PW-3, being a Trapping Officer

Page 26 of 43

is concerned, who has in uncertain terms has deposed before the Court and has fully corroborated and from his evidence, there is no illicit material was brought on record by the defence which helps the case of the defence and thus, there is no any infirmity or any illegality committed by the Trial Court while passing the impugned judgment and order of conviction and sentence.

6.6 So far as the evidence of PW-4, being a Sanctioning Officer is concerned,, who had granted the sanction, in his deposition, he has clearly stated that at the time of decoy, though all these police officers viz. accused Nos.1, 2, and 3 were not supposed to be present at the place of decoy since at that point of time, they were not on duty and in support of that evidence, he has produced the sanction order that at the time of decoy, the accused Nos.1, 2 and 3 were not supposed to be found present, as at that point of time, they were not on duty. It is also to be noted herein that even they were found with the office vehicle allocated to accused Nos.1 and 3 and during the course of investigation, the I.O. has also collected the log-book and other relevant materials, and from that the fact clearly established tat though their office hours were over, the

Page 27 of 43

accused Nos.1, 2 and 3 were found at the place at the time of decoy alongwith the office vehicle allocated to accused Nos.1 and 3 and for that, the accused Nos.1 and 3 had neither rendered any clarification nor they had examined any witness to deny the said fact and nor they had submitted any written statement to clarify the said situation and thus, all these facts clearly establish their involvement and the prosecution has established the case against all the accused persons by leading cogent and material evidence against them and the same cannot be ignored or brushed aside, which directly connects the present appellants accused with the crime in question, and the charge levelled against them is proved by the prosecution beyond reasonable doubts and thus, the impugned judgment and order of conviction and sentence cannot be interfered with by this Court.

6.7 It is also relevant to note herein that, though in the present case, while recording the statements of the accused under Section 313 of Cr.P.C., the Trial Court has not posed the question with regard to the presence of the appellants accused persons at the place at the relevant point of time. The appellants accused have neither rendered any clarification nor

Page 28 of 43

submitted any facts that why they were present at the place at that relevant point of time, even they had not examied any witness that they were on duty at that relevant point of time, and therefore, merely because the Trial Court has not posed any question to the appellants accused, the trial cannot be vitiated, and therefore, the findings recorded by the Trial Court cannot be faulted with as there is no any perversity or any illegality committed by the Trial Court in passing the impugned judgment and order of conviction and sentence.

6.8 It is also relevant to note herein that the learned senior counsel Mr.Anandjiwala has contended that though PW-3, being a Trapping Officer, received secret information five days prior to the date of decoy, has neither reduced in writing the said information nor he had informed to any superior officer but for that, in his evidence, the defence has no any illicit material, which otherwise, supports the case of the prosecution and thus, merely because, the fact was not brought to the notice of the accused persons, the accused persons could have explained before the Trial Court by filing their written explanation as provided under Section 20(1) of the Act. Here in the present case, the appellants accused have

Page 29 of 43

not tendered their explanation as provided under the law. Even while going through the evidence and considering it in detail, the accused Nos.1 and 2 were found with certain amount from their personal pockets and also with the amount found from the vehicle kept in one wooden box for which, the Trapping Officer had asked their explanation with the regard to the amount which was found from their possession at the time of search and seizure. Neither of the appellants have tendered any explanation satisfactorily nor they had explained before the Trial Court that under which circumstances the said amount came into their possession and/or even from the vehicle which was allocated to them and therefore, the Trial Court has considered this aspect while appreciating the evidence and more particularly, considered in paragraphs 46, 48 and 49 of the impugned judgment and order and all these circumstances led to the conclusion that the appellant Nos.1 to 3 with the help of appellant Nos.4 and 5 were collecting the amount of illegal gratification under the guise of entry fees as they had not rendered any explanation worth the name before the Authority or before the Trial Court. Even the appellants accused had not filed any written submissions that under which circumstances they were found with the amount which

Page 30 of 43

was recovered during the course of search and seizure and therefore, all theses aspects were considered by the Trial Court while appreciating the evidence in its true and proper perspective and which led to the only conclusion that all the appellants accused in connivance with each other are held guilty for the offence charged against them and therefore, the Trial Court has not committed any error while passing the impugned judgment and order of conviction and sentence against the present appellants accused.

6.9 So far as the authority cited by both the sides in the facts of the present case is concerned, in view of the decision of the Hon'ble Apex Court referred to and relied upon by the learned APP Ms.Shah in case of State (Delhi Administration) Vs. Dharampal, reported in [2001] 10 SCC 372 that where an omission, to bring the attention of the accused to an inculpatory material has occurred, merely on that ground, whether the trial can be vitiated? The Hon'ble Apex Court has specifically answered in its aforesaid decision in paragraph no.13 as under :-

Head Note (A) Criminal Procedure Code, 1973 - S. 313 - Failure to draw accused's attention to in'culpatory material to enable him to explain it in examination of accused under

Page 31 of 43

S. 313 - Held, by itself does not vitiate the proceedings - Prejudice, if any, caused to the accused must be established by him

"13. Thus it is to be seen that where an omission, to bring the attention of the accused to an inculpatory material, has occurred that does not ipso facto vitiate the proceedings. The accused must show that failure of justice was occasioned by such omission. Further, in the event of an inculpatory material not having been put to the accused, the appellate court can always make good that lapse by calling upon the counsel for the accused to show what explanation the accused has as regards the circumstances established against the accused but not put to him."

6.10 So far as the decision in case of State of U.P. Vs. Zakaullah, reported in 1998 CRI. L.J. 863 is concerned, the Hon'ble Apex Court has come to the conclusion that the evidence of a Police Officer can be acted on even without the help of any corroboration and there is no any requirement to corroborate by any independent witness . The relevant observations are made in paragraph nos.10 and 12, which are as under :-

Head Note (C) Prevention of Corruption Act, S.5(2) - Bribery case - Evidence of Trap Officer - Can be relied on even without corroboration

"10. The necessity for "independent witness" in cases involving police raid or police search is incorporated in the statute not for the purpose of helping the indicted person to bypass the evidence of

Page 32 of 43

those panch witnesses who have had some acquaintance with the police or officers conducting the search at some time or the other Acquaintance with the police by itself would not destroy a man s independent outlook. In a society where police involvement is a regular phenomenon many people would get acquainted with the police. But as long as they are not dependent on the police for their living or liberty or for any other matter, it cannot be said that those are not independent persons. Of the police in order to carry out official duties, have sought the help of any other person he would not forfeit his independent character by giving help to police action. The requirement to have independent witness to corroborate the evidence of the police is to be viewed from a realistic angle. Every citizen of India must be presumed to be an independent person until it is proved that hew was a dependent of the police or other officials for any purpose whatsoever.(Hazari Lal vs. Delhi Administration : 1980 (2) SCR 1053).

12. The evidence of such a witness as PW4 can be acted on even without the help of any corroboration (vide Prakash Chand vs. State (Delhi Administration): 1979 (2) SCR 330; hazari Lal vs. Delhi Administration: 1980 (2) SCR 1053)."

6.11 The above decision is further supported by another decision of the Hon'ble Apex Court rendered in case of Abdul Majid Abdul Hak Ansari Vs. State of Gujarat, reported in [2003] 10 SCC 198, wherein, the Hon'ble Apex Court has considered that the prosecution case based upon the evidence of a police witness only and the Hon'ble Apex Court has come to the conclusion that the case is proved beyond reasonable doubts by the prosecution by leading the evidence of the

Page 33 of 43

I.O./Police Witness. The relevant observations are made in paragraph no.3, which is as under :-

"3. Mrs.K. Sarada Devi, learned counsel appearing for the appellant contended before us that the prosecution has not examined any independent witness in the case, and that the prosecution case is based on the evidence of police witness only, therefore, it is not safe to rely on such evidence to hold that the said charas was seized from the appellant. She also pointed out that only one panch witness was examined and he too has has not supported the prosecution case. Though it is true that the prosecution has relied on the prosecution witness only, both the courts below after considering this evidence have placed reliance on the same and we find no error in the same. Having considered the evidence, we agree with the courts below that the prosecution has proved beyond reasonable doubt that the charas was seized from the person of the appellant and the same was properly sent to the Forensic Science Laboratory for the purpose of analysis and the same was found to be a contraband article, sale of which is prohibited under the provision of the Act and the appellant was found possessing the said quantity of charas for the purpose of sale. For the said reason we find no error in the finding of the courts below, hence this appeal has to fail."

6.12 The decisions referred to and relied upon by the learned senior counsel Mr.Anandjiwala for the appellants, more particularly, in case of Ratuji Varvaji Vaghela Vs. State, reported in [1998] 2 GCD 2157, wherein, considering the case for discharge, this Court has observed that on application of test settled by the Hon'ble Supreme Court in the matters

Page 34 of 43

referred to hereinabove to the facts and circumstances that mere presence of the accused persons near the place of decoy, cannot be said to form a sufficient ground to hold them guilty. But, in the present case, there is a specific case against the appellants accused that they were in possession of the currency notes which were found during the course of search and seizure for which, the concerned I.O. had sought clarification from the appellants accused but they could not tender any satisfactory explanation neither before the I.O. nor before the Trial Court at the time of recording their statements under Section 313 of Cr.P.C. and which leads to a conclusion that they had collected the amount of bribe under the name and style of entry fees and all the currency notes were found from the possession of accused Nos.1 and 2 and even from the vehicle allocated to accused Nos.1 and 3 from one wooden box in different denominations, which raise doubts in the mind of any person that how these different denominations' notes came into the possession of accused persons, and therefore, the Trial Court has rightly discussed this aspect in its impugned judgment in detail in paragraph no.45 onwards and therefore, the Trial Court has not committed any error while passing the impugned judgment and order of conviction and

Page 35 of 43

sentence.

6.13 So far as the decisions referred to and relied upon by the learned senior counsel Mr.Anandjiwala for the appellants in case of Dinkar Bapurao Deokar Vs. State of

Maharashtra, reported in [2016] CRI. L.J. 3588 is concerned, he has emphasized upon the fact that the prosecution has not proved the facts with regard to demand and there is no proof and therefore, in the case of Prevention of Corruption Act, this is the prime ingredient and the same is required to be proved beyond reasonable doubts and here in the present case, there is no proof with regard to demand as charged against the appellants accused and therefore, the case of the prosecution itself is lacking such evidence and thus the conviction cannot stand on such evidence, is far-fetching truth, as none of the appellants accused have tendered any explanation with regard to the amount in their possession, which leads to the conclusion that the appellants accused were collecting the amount of illegal gratification from the commuters passing through the Ahmedabad-Mumbai Old Highway.

Page 36 of 43

6.14 So far as the conviction recorded against the appellant Nos.4 and 5 is concerned, the learned APP Ms.Shah has referred to and relied upon the decision of the Hon'ble Apex Court in case of Rambhau And Another Vs. State of Maharashtra, reported in [2001] 4 SCC 759 and in case of

Ravindranath Maganbhai Prajapati Vs. State of Gujarat, reported in 2014 (0) AIJEL_HC 231893, more particularly, the observations made in paragraph nos.23 and 26, which read as under :-

"23. In support of her submission, learned APP is relying upon the following citations:-

(1) Phula Singh Vs. State of H.P. Reported in (2014)4 SCC 9 wherein considering the similar case under the Prevention of Corrupation Act with reference to Section 313 of Cr.P.C., Hon'ble the Supreme Court has held that it is the duty of the accused to furnish an explanation regarding any incriminating material that has been produced against him, if accused choose to maintain silence or in complete denial when a statement u/s.313 of the Cr.P.C. is recorded, then in such an event, the Court would be entitled to draw an inference including such an adverse inference against the accused as may be permissible in accordance with law, rejecting the submission that prosecution has to establish each and every fact and accused has a right only to maintain silence. It is further held that non-explanation of incriminating circumstances by accused would lead to adverse inference in a trap case while confirming the reversal of acquittal and thereby convicting the accused, when appellant - accused did not furnish any explanation in respect of recovery of Rs.1000/- from the pocket of his pant or

Page 37 of 43

how his fingers turned pink on being washed with sodium carbonate solution as the currency notes were found from his pocket. In the present case also, there is no explanation that how the tainted currency notes were found from the possession of the accused no.2 and, therefore, accused no.2 cannot escape from his liability of explanation and in absence of explanation, there would be a presumption against him. Whereas, so far as accused no.1 is concerned, it would be explained herein after referring the provision of concerned section itself that even acceptance is through some third party like an agent. The person who has initially demanded the amount as bribe and the person who has accepted the bribe on his behalf, both are liable to be convicted.

(2) Mukut Bihari Vs. State of Rajasthan reported in (2012)11 SCC 642 wherein the Hon'ble Supreme Court has while dealing with the similar case under the Act held that when there is no reason or motive for the complainant to falsely enrope appellants in the case, even absence of shadow witness would not vitiate the whole trap proceedings when there is no contradiction in depositions of witnesses and their version is without any embellishment and improvement. It is further held that burden of proof rests on accused once foundational facts has been established by the prosecution, whereby provision of Section 20 would be invoked and burden of proof would shift upon the accused to explain the facts though it may be only on touchstone of preponderance of probability and not on touchstone of proof beyond all reasonable doubt. However, there must be proper explanation by the accused and in absence of explanation, if accused remains silent in explaining that how tainted notes have been recovered from him, then there would be presumption against him that he has accept the money.

In the present case also, accused no.2 has failed to explain about

Page 38 of 43

possession of tainted currency notes with him.

(3) C.M.Sharma Vs. State of A.P. reported in (2010)15 SCC 1, which is relied upon in Mukut Bihari's case (supra) wherein the Hon'ble Supreme Court has while dealing with the similar case confirmed the conviction rejecting accused's plea that demand of bribe by him was improper in view of his strained relationship with the person from whom the bribe was allegedly demanded, in view of specific and positive evidence of witnesses regarding demand and acceptance of bribe by one of the accused, which was not improbable.

(4) K.S.Panduranga Vs. State of Karnataka reported in (2013)3 SCC 721 wherein Hon'ble Supreme Court has upheld the conviction based upon presumptions pointing out that how it can be rebutted and standard of proof applicable to such rebuttal with the duty of the Court in that regard and even rejected the story of the defence version that how and why tainted notes were found from their possession when it was stated that in fact the amount was to be borrowed from the complainant and not accepted as a bribe. It is also confirmed that where minimum sentence is prescribed, even reduction of sentence is impermissible.

(5) Narendra Champaklal Trivedi Vs. State of Gujarat reported in (2012)7 SCC 80 wherein Hon'ble Supreme Court has confirmed that even if amount of bribe is meagre, corruption deserves no sympathy or leniency and minimum sentence prescribed under statute cannot be reduced on the ground of amount of gratification or convict would lose his job or long lapse of time after the occurrence of the offence. The Court has also considered the provisions of Section 20 of the Act recording presumption holding that the Court is obliged to apply the presumption in case of offence u/s.7, though such presumption is rebuttable. Therefore, when demand and acceptance of illegal gratification and recovery

Page 39 of 43

of tainted money from the accused's possession is established on fact by prosecution and thereafter if accused fails to rebut the presumption drawn against him, the conviction is justified.

(6) In T.Shankar Prasad Vs. State of A.P. Reported in (2004)3 SCC 753 the Supreme Court has held that presumption u/s.20 of the Act is not only legal, it is compulsory and Court is bound to operate the said presumption when conditions for drawing such presumption is satisfied. Though it is rebuttable by proof, and not by only explanation which may seem to be plausible because the words used in Section 20 is "it shall be presumed". In this case, the facts are almost similar to the case on hand inasmuch as in reported case also, one Officer has directed to pay bribe amount to some other person and involvement of both of them was well planned and cleverly managed to systematically collect money and then to plead that main accused has not demanded the money and, therefore, rejecting the plea of accused's, conviction was confirmed. Even by applying the presumption u/s.20 when accused have tried to explain that the amount accepted by them was not towards the bribe but it is to be credited as tax.

(7) State of West Bengal Vs. Kailash Chandra Pandey reported in (2004)12 SCC 29 wherein the Supreme Court has held that minor discrepancies and contradictions are not fatal to the case of the prosecution so as to interfere in order of conviction by the High Court and thereby conviction and sentence by trial Court was confirmed. It is further held that the appellate Court should not lightly brush aside the appreciation done by the trial Court except for cogent reasons and thereby acquittal by the High Court was set- aside.

(8) In State of Tamilnadu Vs. A. Parthiban reported in (2006)11 SCC 473, the Supreme Court has held that every acceptance of illegal gratification whether preceded by a demand or not would be

Page 40 of 43

covered by Section 7 and acceptance of illegal gratification in pursuance to demand by a public servant would also fall u/s.13(1)

(d) of the Act. It is further held that grant of probation for offences committed u/s.13 is impermissible.

(9) In Krishna Ram Vs. State of Rajasthan reported in (2009)11 SCC 708 wherein Supreme Court has held that once money was recovered from the possession of the appellant, the burden u/s.20 shifts upon him.

26. So far as the present case is concerned, it is not even the case of the appellant that sanction was granted on the same material, on the contrary, it has come on record that it was sanctioning authority itself which has considered to grant sanction after receiving all the materials of investigation when initially sanction was sought for based upon trap. It would be appropriate to refer the case of Rambhau Vs. State of Maharashtra reported in (2001)4 SCC 759 where abetment by co-accused was considered for conviction, whereas issue of presumption is concerned, there are several other cases on the subject. However, the settled legal position is quite clear that once there is a recovery of tainted money from accused coupled with evidence regarding demand of bribe, it is the duty of the accused to rebut the evidence to prove his innocence by explanation that how tainted money has reached in his possession. So far as present case is concerned, there is a clear evidence that accused no.2 has accepted the amount on behalf of accused no.1, since accused no.1 was dealing with the file of the complainant and, therefore, accused no.2 has no reason whatsoever to visit the office of the accused no.1 with the complainant and then to carry file of the complainant to his own office where he has demanded the money on behalf of accused no.1 and accepted it. Therefore, considering the language of Section 7, where it is categorically confirmed that whoever accepts from any person for himself or for any other person gratification or award for whatsoever as a motive

Page 41 of 43

for doing the official act shall be liable to be punished, makes it clear that when accused no.2 has accepted money for accused no.1 who has to do the official act by forwarding the loan application of the complainant, they both have acted in connivance with each other to accept the bribe from the complainant and, therefore, I do not find any cogent reason to interfere in the reasoned judgment by the trial Court where every aspect is properly examined and explained before confirming conviction of the appellants. Therefore, since there is no substance in the appeals, the same deserve to be dismissed."

6.15 In light of the facts of the present case, the decisions referred to and relied upon by the learned senior counsel Mr.Anandjiwala for the appellants are not applicable as the Trial Court has rightly appreciated the evidence in its true and proper spirit. Considering all theses aspects and the reported decisions of the Hon'ble Apex Court as well as this Court, the Trial Court has rightly held all the accused persons guilty of the offence charged against them, and therefore, no interference is required to be called for in the impugned judgment and order of conviction and sentence passed by the Trial Court.

7. The present Appeal is hereby dismissed. The impugned judgment and order of conviction and sentence dated 05/09/2007 passed by the learned Special Judge, Fast Track Court No.4, Vadodara in Special (ACB) Case No.13 of 1998 is

Page 42 of 43

hereby confirmed. The appellants accused are directed to surrender before the judicial custody of the concerned Trial Court within a period of 10 (Ten) weeks from the date of this order. The bail and bail bond, if any, while enlarging the appellants on bail stands cancelled. Surety, if any, shall stand discharged.

Record and Proceedings to be sent back to the concerned Trial Court forthwith.

(HEMANT M. PRACHCHHAK,J)

Dolly

Page 43 of 43