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PETITIONER: SOM PARKASH

       Vs.

RESPONDENT: STATE OF DELHI

DATE OF JUDGMENT25/01/1974

BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. SARKARIA, RANJIT SINGH

CITATION:  1974 AIR  989  CITATOR INFO :  F          1974 SC1024  (5)  R          1976 SC  91  (11)

ACT: Prevention   of   Corruption   Act,   1947--s.5(1)(d)    and 5(2)--Whether  trapping  of  corrupt  officials  a  polluted procedure--Whether   investigating   officers   a    suspect species--Whether chemical test reliable.

HEADNOTE: The  appellant, an Inspector of Central Excise, was  charged under  s.161,  I.P.C. and S.5(1)(d)read with s.5(2)  of  the Prevention  of  Corruption  Act,1947for  having  accepted  a bribe.  He was convicted and sentenced by the Special Judge. The  High.  Court confirmed the conviction but  reduced  the sentence to one year’s imprisonment. The allegation against the appellant was that he accepted  a sum  of Rs. 50/- as illegal gratification.  At the  instance of the complainant the raiding police party passed on to the appellant  currency  notes  worth  Rs.  50  smeared  with  a chemical  substance.   On  recovery of the  money  from  his pocket  traces of the chemical substance were found  on  his fingers his kerchief and his trouser pocket. It  was contended (i) that trapping of corrupt officials  in the   usual  course  is  a  polluted  procedure   (ii)   the investigating  officers are a suspect species and (iii)  the chemical test was not reliable. Dismissing the appeal to this Court, HELD:     It  is not possible to accede to the  theory  that the  trapping of corrupt officials in the usual course is  a polluted  procedure.  Our social milieu is so vitiated by  a superstitious  belief that any official can be  activist  by illegal  gratification, so confidential is the technique  of give and take in which the white-collar offender is an adept and  so  tough  is  the forensic  problem  of  proof  beyond reasonable  doubt  by good testimony in this area  that  the only  hope of tracking down the tricky officers is by  lying traps and creating statutory Presumptions.  Condemnation  of all  traps and associate witnesses is neither pragmatic  nor just,  nor  is  it  fair to  denounce  all  public  servants indiscriminately.     Judicial   attitudes   have   to    be discriminating.  An awkward judicial conscience and an alert critical appraisal are the best tools in this process.  [202

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G; 203 A] (ii) Courts  are aware of the exaggerated criticisms of  the police force as a whole and of the reluctance of the framers of the Criminal Procedure Code to trust statements  recorded by police investigators, but these are, partly at least, the hangover of the British past.  Today trust begets trust  and the higher officers of the Indian police, especially in  the Special Police Establishment, deserve better credence.  [203 D-E] (iii)     The  evidence  furnished  by  inorganic  chemistry often outwits the technology of corrupt officials,  provided no alternative reasonable possibility is made out. it is but meet  that  science-oriented detection of crime  is  made  a massive  programme of police Work, for in our  technological age nothing more primitive can be conceived of than  denying the discoveries of the sciences as aids to crime suppression and  nothing  cruder  can retard  forensic  efficiency  than swearing   by   traditional  oral  evidence   only   thereby discouraging  liberal  use of scientific research  to  prove guilt. [204 E]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 143 of 1970. Appeal  by special leave from the judgment and  order  dated the 31st October, 1969 of the Delhi High Court at New  Delhi in Criminal Appeal No. 70 of 1967. The appellant appeared in person. H.   R. Khanna and R. N. Sachthey, for the respondent. 201 The Judgment of the Court was delivered by KRISHNA  IYER  J.   The appellant, a  quondam  inspector  of Central  Excise, has argued his case with  perspicacity  and plausibility, taking liberal advantage of our solicitude for giving  this lay man a lengthy hearing.  The charge  broadly stated, is one of corruption falling under s.161,1.P.C.  and S.   5(1)(d),  read  with  s.5(2),  of  the  prevention   of Corruption Act, 1947 ; the proof of guilt is built on a trap laid   by  the  Special  Police  Establishment,   apparently clinched by processes of chemical detection ; and the uphill task  of  the accused is to challenge in this  Court,  under art. 136, the concurrent findings upholding his culpability. Undaunted  he  has attempted to  explain  the  incriminating evidence  with adroitness worthy of a better cause  and  has taken  us critically through the testimony of the P. W.s  in an   effort  to  substantiate  a  credible  case   for   his exculpation. Now,  the story, P. W. 1, a young man in his late  twenties, had   started  a  small  factory  in  Shadara,  called   Uma Engineering Corporation, for making insulated copper cables, around  June, 1965.  The whole process, except  fitting  the rubber  insulation,  was done in his premises and  for  this latter  purpose the semi-finished goods used to be taken  to another  factory in Delhi.  Insulated coils  being  dutiable articles,  the Excise authorities had to issue  gate  passes for  removal  of even half finished items.  According  to  a certain  practice  that prevailed till a little  before  the alleged commission of the offence, when the article was  not fully  manufactured, its removal for the completion  of  the process  was permitted without levy of duty in  advance  and gate  passes were issued on this basis.  However,this was  a doubtful procedure and the accused did insist, at a  certain stage,   that  even  removal  for  further  processing   was

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permissible only on payment of duty, thus antagonism P. W. 1 and  hampering  his  business.   Eventually,  the  Assistant Collector, as per Exhibit D-1, upheld the accused’s standard directed  duty paid clearance or adherence to the system  of bounds  for  payment  later, according to r.  56  A  of  the relevant  rules.  Apart from this, even duty  paid  finished goods  could  not  leave  the  factory  premises  before   a peroration  (c.1. Ex.  D-2) was filled in, verified  by  the Excise   inspector  and  signed  by  him.    The   embryonic industrialist,  P. W. 1, when faced with the  insistence  on duty payment made contacts with the accused and was asked to initiate  himself into the magical means of  getting  things done  through monthly payments of Rs. 100/as "speed  money". Being too virgin for this way to prosperity, P.W. 1  reacted by   making   a  bee  line  to  Sri  Waswani,   the   Deputy Superintendent, Central Excise, with little benefit.  Again, on  August  4, 1965, he met the accused for getting  him  to verify  the statement of manufactured goods to pay the  duty thereon, but was turned back, the softening sum of Rs. 100/- not having been offered. We now move to the critical phase.  On August 6. 1965, P. W. 1  goes to the office of the accused to get clearance  of  2 finished  bundles  of  cables.   The  demand  for  money  is repeated  but  by  this  time P.  W.  1  acquires  skill  in courtship  and  bargains  for  a smaller  sum  of  Rs.  50/. Whereupon  the accused signs the challan for the deposit  of the excise duty on these finished products (vide Ex.  P. 4). The bribe, 202 according to the understanding, is fixed to be paid next day in  the afternoon.  At this stage, P. W. 1 changes his  mind and  discloses his bosom to the S. P. E. Officers  the  next morning   at   Kotah  House  (Ex.   P.   5)..   The   Deputy Superintendent  of Police, P. W. 7, swings into action  with professional proficiency.  Two officials, P. W. 3 and P.  W. 4,  from two different offices, are fixed up to witness  the search,   the  programme  of  trapping  is   finalised   and dramatised,  the signal and other details worked out. the  5 currency notes making up Rs. 50/smeared with phenolphthalein powder  and  the visible chemical reaction when  even  small particles  thereof are dipped in sodium  carbonate  solution demonstrated.   The- "raiding party" troops out after  these preliminary operation are put down in Ex.  P.- 6. Now  the scene shifts to the factory.  The accused  arrives, coca  cola is served, the treacherous notes are  passed  and put  into his gullible pockets by the unsuspecting  accused, and  then  the  sequence  of rap on  the  door,  the  police presence,  the  surrender by the startled appellant  of  the tell-tale currency, his hands, kerchief and inner lining  of the trouser pocket betray him when dipped in acidic solution and  the  game  is  up.  Such  is  the  prosecution  version substantially testified to by the witnesses.  The inexorable course of the law takes the accused to the special Judge who convicts  him, the High Court affirms the guilt but  reduces the sentence to one year’s imprisonment. The arguments in this Court, if confined to facts only under art136, have as much chance as the proverbial camel  through the eye of a needle.  The power, extraordinary in  amplitude but  exceptional in its exercise, goes into action  only  to avert  miscarriage  of justice and rarely operates  to  undo concurrent findings of fact, if perversity is not present. Yet,  the  contentions have been ingeniously  and  hopefully presented.   The basic attack has been on the morally  murky mechanism  of criminal trap.  Who has not-our  legends  say, even  rishis  have-succumbed  to  attractive  temptation  in

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loneliness  laid  ? And courts have  frowned  upon  evidence procured  by  such experiments since  the  participants  are prone  to  be  over-anxious and  under-accrupulous  and  the victims  are  caught morally unawares.  Even so,  there  are traps and traps.  Where you intercept the natural course  of the  corrupt stream by setting an invisible contraption  its ethics above board.  On the contrary, to test the moral fire of  an  officer whose reputation is suspect, if you  .lay  a crime  mine which explodes when he, in a weak moment,  walks on  it the whole scheme is tainted.  of course,  our  social milieu  is  so vitiated by a superstitious belief  that  any official  can  be  activised by  illegal  gratification,  so confidential is the technique of give and take in which  the white colour offender is adept and so tough is the  forensic problem  of proof beyond reasonable doubt by good  testimony in this area, that the only hope of tracking down the tricky officers   is  by  laying  traps  and   creating   statutory presumptions.   Even Kautilya has stated that "just as  fish moving  under water cannot possibly be found out  either  as drinking or not drinking water so government servants cannot be found out while taking money." Ex-cathedra condemnation                             203 of  all traps and associate witnesses is  neither  pragmatic nor  just, nor: is it fair to denounce all  public  servants indiscriminately.     Judicial   attitudes   have   to    be discriminating,  as  has happened in this  case.   The  High Court     has,  after  careful study, chosen to  accept  the bona fides of the trap   and  its author Bishnoi,  a  senior police official of the S.P.E (P. W. 7).      We       cannot accede to the theory that the trapping of corrupt officials, in the usual course.. is a polluted procedure. The  appellant  has cited decisions in support of  his  plea that  traps.  are tainted and trap witnesses  are  unworthy. The  rulings do not go, so far and merely indicate the  need for caution and corroboration depending on the circumstances of each case.  An awakened judicial conscience and an  alert critical appraisal are the best tools in this. process. The   appellant’s  general  denunciation  of   investigating officers  as a suspect species also ill  merits  acceptance. The  demanding degree of proof traditionally required  in  a criminal case and the devaluations suffered by a witness who is  naturally  involved in the fruits of  his  investigative efforts,  suggest  the legitimate search  for  corroboration from   an   independent  or  unfaltering   source-human   or circumstantial to make judicial cortitude doubly sure.   Not that  this approach casts any pejorative reflection  on  the police officer’s integrity, but that the hazard of holding a man  guilty  on interested, even if  honest,  evidence  may, impair confidence in the system of justice.  We are aware of the  exaggerated criticisms of the police force as  a  whole and  of  the  reluctance  of the  framers  of  the  Criminal Procedure  Code  to  trust  statements  recorded  by  police investigators but these are, partly atleast, the hangover of the British past.  To-day, trust begets trust and the higher officers  of  the Indian Police, especially in  the  Special Police  Establishment  deserve  better  credence.   We   are certainly  inclined not to swallow the evidence of P  Ws.  7 and 8 without scrutiny but after having heard the  appellant at length we are prepared to agree with the High Court  that the  evidence  of P.Ws.7 and 8 are  substantially  correct.. Even here, we must underscore the importance of the findings of  the:  trap  experiment,  since they go  a  long  way  to underwrite the veracity, of the prosecution story, Before,  considering this facet of the case, we may as  well briefly  refer  to  P. Ws. 1, 3 and 4. P.W. 1  is  the  main

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medium for the bribe-giving. He admitted. He admittedly  has animus  against the accused. His station, in life  does  not dispel  suspicion  and  so we have  to  be  skeptical.  His: deposition  has  been read again before us  and  nothing  to brand him a liar has come out. Were the case to hang on  his single  testimony  the  fate of the  case  might  have  been different. There was  P. W. 4 who deposed to the  receipt and  pocketing  of  the tainted  notes  by  the.  appellant. Before us it has been argued with vehemence that P. W. 4 was not  credit-worthy as on one or two previous occasions  also he was joined by the police to witness such traps, that  his house  itself  was.  searched by the C.B  I.,  and  that  he contradicts the other witnesses in,. respect of some  facts. These points were canvassed before the courts below and were found, for good reasons, of no consequence in affecting  the veracity of his testimony.  P. W. 4 was a gazetted officer-- 204 in another department not chosen by P. W. 7, but directed to go  by  his ’boss to attend the trap.  True, his  house  was raided  but this was done long after the occurrence, and  by another  wing of the C. B. 1. His presence, in the room,  at the  time of the alleged passing of the money by Om  Prakash was  admitted  by  the appellant.  P. W.  4  had  no  animus against  the  appellant,  nor any  acquaintance,  much  less affinity with Om Parkash.  No mortal attach on the integrity or probability of the testimony of.  P. W. 4 none that  will warrant  the  subversion of the conclusion  reached  by  the courts below-has been successfully made.  The evidence of P. W. 4 coupled with that of P. W. 1, was itself sufficient  to establish  the acceptance of the tainted currency  notes  by the  appellant from Om Prakash, which was a pivotal fact  of the prosecution case.  Then, there was the evidence of P. W. 3, apart from that of the police officers. But  the  outstanding circumstances, most  damaging  to  the accused,  ,-flow  from  the trap.  The  rival  case  of  the accused is that no money was .given to him but P. W. 1,  who had  to make good his story, placed the notes on  the  chair and  pretended to the police that he had paid, the  accused. of  course, the oral evidence of P. Ws. 1 and 4, by  itself, if  believed, as rightly believed by the High Court,  proves the  passing of the money to the accused and its  production by him when challenged by P. W. 7. The fact is  indisputable that the hands, the handkerchief and the inner lining of the trouser  pocket of the accused turned violet when dipped  in soda ash solution.  From this the State counsel argues .that on  no  hypothesis-except that the notes emerged  from  tile accused’  pocket or possession can the triple colour  change be  accounted  for.   The evidence  furnished  by  inorganic chemistry often outwits the technology of corrupt officials, provided no alternative reasonable possibility is made  out. The  appellant offers a plausible theory.  P. W. 1 kept  the notes  with  him  and his hands  thus  carried  the  powder. He,  .gave  a bottle of coke to the accused and  the  bottle thus  transmitted  particles  of  phenolph-thalein  to   the latter’s  hands.  He (the accused) wiped his face  with  the kerchief   and   put  it  into  his  trouser   pocket   thus contaminating   the  lining  with  the   guilty   substance. Moreover,  the .inner lining was dipped by P. W. 7 with  his hands which had the powder.  Thus, all the three items stand explained, according to him.  These ,recondite possibilities and  likely freak,, have been rejected by both  the  ,courts and we are handly persuaded into hostility to that  finding, It  is but meet that science-oriented detection of crime  is made  a  massive  programme  of  police  work,  for  in  our technological age nothing more primitive can be conceived of

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then  denying  the discoveries of the sciences  as  aids  to crime  suppression  and nothing cruder can  retard  forensic efficiency  than swearing by traditional oral evidence  only ,thereby   discouraging  the  liberal  use  of’   scientific research to prove -guilt. One submission made by the appellant remains to be  noticed. He urged that after Ex.  D-1, no Excise Inspector could have given the semi-finished cables free exit and if duty had  to be paid nothing was gained by giving the bribe.  Bribes  are not charity but shrewd business and therefore the motive for P. W. 1 to pay, linked as it was with                             205 hope  of getting duty-free gate pass, did not  exist.   This approach  has  a  flaw.  Bribes are paid  not  only  to  get unlawful things done but to get lawful things done  promptly since  time means money.  Here, we must remember  that  gate passes  and  pro  forms  have to be  signed  by  the  excise inspector,  and signatures can carry a price.  While  we  do not  accept generalisation about corruption in the  country, we  may excerpt a couple of foot-notes from Gunnar  Myrdal’s "Asian Drama" only to point out that the modus opperandi  of corrupt officials may take the course of accepting money for doing  what  is  lawful more quickly.   We  would,  however, repeat that we dissociate ourselves from any impression that the book may otherwise give.  The foot-notes read               "The  London Times (August 5, 1964) reports  :               "Many of these instances of bribery are  those               in which the citizen pays in order to get what               he is entitled to anyway, and some students of               Indian  affairs  have argued that  this  is  a               necessary  and  not harmful  lubricant  for  a               cumbersome      administration......      this               corruption is "simply a way that citizens have               found    of   building   rewards   into    the               administrative structure in the absence of any               other appropriate incentive system."               "As  a  means of  accelerating  the  sluggish,               meandering  circulation  of a file  within  ’a               department  this might be all very  well;  but               speed  money, belying the name,  actually  has               the  effect  of  a  brake  on  administration,               slowing  it  down even  further.   Delay  will               deliberately  be  caused in  order  to  invite               payment of a bribe to accelerate it again." In  this  very case, on the ill-starred day, duty  had  been fully paid and only his signature to the pro forma had to be appended  for  which the bribe was sought.  We  have  little hesitation  in taking the view that "  speed money"  is  the key  to  getting  lawful  things done in  good  time  and  " operation  signature", be it on a gate pass or a pro  forma, can  delay  the  movement of goods,  the  economics  whereof induces investment in bribery, Every  pass  and pro forma tempts  and  every  discretionary power induces illicit demands, given a declining ethos where giving and taking of illegal gratification is looked upon as an  inevitable  evil which has come to  stay-more  and  more inevitable and less and less evil, as the habit catches  on. Producers  depend for their rolling capital on  quick  turn- over which is clogged when forms and passes to be signed  by officials are issued with purposeful reluctance and official slow-  motion  becomes  the signal for  use  of  that  paper lubricant  which on expanding class of  businessmen  blessed with dubious morals consider an, invisible component of  the cost of production and a widening circle of officials gifted with low key consciences. regard as the unobjectionable  art

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of coking out untaxed additions to their emoluments May  be, this  exaggerated  version  of  the  situation  is  but  the folklore  of  corruption  but  knocks  the  bottom  of   the appellant’s plea against motive. To  sum up, we see no good ground to over-turn  the  factual findings recorded by the trial judge and affirmed on appeal. 206 The Central Law Commission considering white-collar crime as a  serious menace has made are port on the  subject,and  the Senthanan Committee has much earlier highlighted the dangers in  this  area. ,In this social  context  judicial  severity cannot  err  on  the  high side an we  think  the  "ends  of justice" referred to by the High Court for toning ,down  the sentence is perhaps an error on the side of leniency.  If at ’all, intensive efforts to track down bigger corruption must be  made  ;  but  courts cannot  slow  down  because  bigger criminals are not caught ,although public morals is  boosted better  by  one big fish being caught ,in the  criminal  not than by a hundred small fry perishing ashore, However, since the State has not quarrelled with the reduction of  sentence by way of appeal we leave the matter well alone. , The  appellant must now surrender to serve the balance  term if any ,because we dismiss the appeal. P.B. R.                    Appeal dismissed. 207