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CASE NO.: Appeal (crl.)  408 of 2008

PETITIONER: Bechaarbhai S. Prajapati

RESPONDENT: State of Gujarat

DATE OF JUDGMENT: 29/02/2008

BENCH: Dr. ARIJIT PASAYAT & J.M. PANCHAL

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO 408 OF 2008 (Arising out of SLP (Crl.) No.6213 of 2007)

Dr. ARIJIT PASAYAT, J.

1.      Leave granted.

2.      Challenge in this appeal is to the order passed by a  learned Single Judge of the Gujarat High Court dismissing the  appeal filed by the appellant.  

3.      Challenge before the High Court  was to the judgment  and order dated 5.11.1993 passed by learned Sub-Judge,  Bhavnagar, in Special Case No.9 of 1991 whereby the  appellant was convicted and sentenced to suffer rigorous  imprisonment for one year in respect of offence under Section  161 of the Indian Penal Code, 1860 (in short the ’IPC’) and for  offence punishable under Section 7(2) of the Prevention of  Corruption Act, 1988 (in short the ’Act’), he was sentenced to  undergo rigorous imprisonment for one year in respect of each  of the offence and fine with default stipulation.

4.      Background facts in a nutshell are as follows:

On 12.12.1990, one Luxury Bus bearing No. GTS-9919  was hired by Ramnikdas Hargovindas from Bharat Travels  Company for carrying a marriage party from Mahuva to  Selana. According to the complainant-Ghelabhai Jasabhai, the  Mehtaji of Bharat Travels who was present in the bus, at  around 6.00 or 6.15 a.m. of that day when the bus reached  Aasarana Chokadi, the appellant-accused stopped the luxury  bus and demanded the documents relating to the luxury bus  whereupon the complainant had shown the permit and other papers. However, the police staff kept these papers with them. The appellant-accused, then demanded Rs.250/-in the name  of entry fee. The complainant, then requested the appellant - accused who was P.S.I. at the relevant time to let them go as  the bus was carrying a marriage party. However, the appellant  accused demanded Rs.250/- to which the complainant refused  as instructed by the owner of the bus.  It is further the case of  the prosecution that the appellant-accused then told the  complainant that Rs.225/- be paid and the papers be collected  from that spot where the bus was intercepted by 10.00  O’clock, and in case the complainant is late, the amount be  paid at Khuntvada Police Station. So saying, the appellant  accused issued a receipt in token of having taken away the  permit and other papers which was received by Bhagwanbhai

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Ranchhodbhai, the driver of the luxury bus. The driver was  then allowed to run the bus towards village Selana. The  complainant thereafter, returned to Mahuva and narrated the  incident to the owner/proprietor of the luxury bus. On hearing  this, the owner of the luxury bus was against giving any illegal  gratification as all the documents relating to the luxury bus  were genuine. Therefore, the owner decided to approach the  Anti Corruption Bureau, Bhavnagar. Accordingly, the  complainant, the owner of the luxury bus and one Ramjibhai  who happens to be the elder brother of the owner of the luxury  bus went to the Office of the Anti Corruption Bureau,  Bhavnagar, met Mr. Bhatt, P.I, of Anti Corruption Bureau,  Bhavnagar, apprised him of the matter and lodged the  complaint. It is further the case of the prosecution that two  Panchas were called and they were told the purpose for which  they have been called, the complaint was read over to them  and they agreed to be Panch Witnesess. They were also  explained the purpose and use of anthracene powder.  Thereafter, the complainant gave two currency notes in the  denomination of  Rs.100/-each and one currency note in the  denomination of Rs.50/- aggregating Rs.250/-. These  currency notes as also the hands of the complainant, Panchas  and other staff were observed in ordinary light and nothing  significant appeared. Thereafter, a bottle containing  anthracene powder was taken from the cupboard, some  anthracene powder was put in a blank paper, these currency  notes were smeared with anthracene powder and when they  were again observed in ordinary light no visible marks were  seen. These currency notes were again tested under ultra- violet lamp and glowing marks of bluish powder were seen.  These currency notes were then put into the shirt pocket of  the complainant after ensuring that the shirt pocket was  empty. It was explained to the complainant that in ordinary  light the marks of anthracene powder will not appear but only  under ultra violet lamp the bluish powder marks of  anthracene powder can be seen. The anthracene powder that  remained in the blank paper was then put back into the bottle;  the bottle was placed in the cupboard and locked. The blank  paper was burnt and destroyed. The complainant was  instructed not to touch the currency notes put in his pocket  except for the purpose of giving them to the appellant-accused  and that these currency notes should be given to none other  than the appellant-accused. With these instructions the  constable washed his hands and made sure that there were no  marks of anthracene powder by viewing under ultra violet  lamp. The preliminary Panchnama Exh. 14 was drawn. The  raiding party then left for Khuntvada - some persons went by  Ambassador Car while the others went by Jeep. The  complainant was instructed to give signal as soon as the  amount is demanded and accepted by putting his hands on  his head and Panch No.1-Hemantkumar Jayantilal Bharu was  instructed to remain in the company of the complainant. In  this manner, with a view to apprehend the appellant-accused  red handed while demanding and accepting the illegal  gratification from the complainant, the trap was arranged. It is  further the case of the prosecution that they reached  Khuntvada at 5.30 p.m. and on instructions by P.I. Mr. Bhatt,  Ramjibhai Ukabhai, the elder brother of the owner of the  luxury bus went to Khuntvada Police Station to inquire  whether the P.S.I. was present or not, however, since the P.S.I.  was not available at the Police Station, they decided to wait for  an hour. It is alleged that within an hour the Police Jeep went  towards the Police Station, and therefore, Panch No. 1 along  with the complainant was sent to the Police Station. They went  to the Police Station on foot and so did the others who

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followed. The complainant went up the first floor where he met  the appellant-accused (P.S.I.) who was sitting in the Chamber  while Panch No. 1 who accompanied the complainant waited  at the door of the P.S.I’s Chamber. The complainant requested  to handover the papers of the luxury bus, but the appellant- accused asked whether he (complainant) had brought the  money i.e. the illegal gratification. The complainant suggested  that some lesser amount than Rs.250/- be accepted to which  the appellant-accused replied that Rs.200/- be given.  Accordingly, the complainant handed over the tainted  currency notes of Rs.200/- to the appellant-accused who  accepted the same by his left hand, put it in  his right hand  and then into his right hand trouser pocket. The appellant- accused then gave the portfolio that was in the cupboard. In  the meanwhile, the complainant had kept the remaining  currency note of Rs.50/- in his pocket. The appellant-accused  then demanded the receipt which was given at the time of  interception at the spot, but the complainant told that the  receipt was with the driver. It is alleged that, at that time,  Panch No.1 was at a distance of five feet from the Chamber of  the appellant-accused and heard the conversation between the  complainant and the appellant-accused. It is also alleged that  the complainant, thereafter, came out near the staircase and  gave the preplanned signal to the ACB personnel who rushed  to the Chamber of the appellant-accused in the company of  Panch No.2 Ishwarlal Girdharlal Chauhan. The ACB Inspector  revealed his identity by showing his card, took away the  revolver from the appellant-accused (P.S.I.). At that time, the  appellant-accused got frightened and took out the said tainted  currency notes from his trouser pocket and kept them in his  fist. The P.I. ACB, Bhavnagar then apprehended the appellant  for having demanded and accepted a sum of Rs.200/- from the  complainant for showing him favour by allowing the luxury  bus to go to the destination and the appellant-accused was  asked to place his hands on the table and the tainted currency  notes were recovered from the appellant-accused. Thereafter,  the test of anthracene powder was carried out on the hands of  the raiding party by viewing their hands under ultra violet  lamp and no marks of anthracene powder was found. Similar  test was carried out of the hands of the complainant, the  appellant-accused and trousers of appellant-accused and  presence of anthracene powder was noticed. It is further  alleged that the recovered currency notes of Rs.200/- were  compared with the numbers and denominations of the  currency notes mentioned in the pre-trap Panchnama and the  same having tallied in toto were seized. The appellant-accused  was taken into custody. The tainted currency note of Rs.50/- that remained in the pocket of the complainant was also  compared with the number and denomination mentioned in  the pre-trap Panchnama and the same also tallied. Thereafter,  a detailed second part of the Panchnama was drawn in  presence of the Panchas, muddammal currency notes, trouser  worn by the appellant-accused etc. were attached. It is further  the case of the prosecution that on the next day, further  statement of complainant was recorded and at that time he  produced the receipt issued by the appellant-accused. The  statements of witnesses were recorded and the sanction for  prosecution in respect of the appellant-accused was obtained  from Mr. Brar, Junagadh.

       After completion of investigation a charge sheet was filed  undertaking alleged commission of offence punishable under  Sections 7, 12 and 13(1)(d) of the Act. Learned Special Judge  framed charges for offence punishable under Sections 7, 12  and 13 (1)(d) read with Section 13(2) of the Act and Section

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161 of IPC.

       As noted above, the appellant was convicted for offence  punishable under Section 7(2) of the Act and Section 161 IPC.  The appeal before the High Court was dismissed on the  ground that there was sufficient evidence on record to hold  that the appellant did demand and accept the bribe money  from the complainant.  

5.      The learned counsel for the appellant submitted that the  evidence is inadequate and does not establish demand and  acceptance of illegal gratification. The appellant all through  has taken the stand that he was falsely implicated.  Alternatively, it was submitted that the sentence as imposed is  heavy considering the amount of bribe alleged to have been  received.  

6.      Learned counsel for the respondent-State on the other  hand supported the order.

7.      It is to be noted that both the trial Court and the High  Court have analysed the evidence in great detail and have  found that the appellant had demanded and accepted a sum of  Rs.200/- from the complainant for allowing the luxury bus to  go to the destination. The tainted currency notes were  recovered from the appellant. The test of anthrecene powder   was carried out of the hands of the raiding party under ultra  violet lamp but no marks of anthracene powder was found.  Similar test was carried out on the hands of the complainant.  On the accused-appellant’s trouser presence of anthracene  powder was noticed. It has also been established that the  numbers of the currency notes were matched with the  denominations mentioned in the pre-trap panchnama.

8.      Looked at from these angles, it cannot be said that the  conclusions of, either the trial Court or the High Court, suffer  from any infirmity.

9.      The alternative submission relates to the harshness of  sentence.  The occurrence took place nearly seven years back.  It is stated that the appellant has suffered custody for more  than six months. Taking into account all these aspects, we feel  interest of justice would be best served if the sentence is  reduced to the period undergone, while maintaining the  conviction. It is to be noted that the minimum sentence  prescribed under Section 7(2) of the Act is six months.  

10.     The appeal is dismissed subject to modification of the  sentence as noted above.