Judgment :- 1. Criminal Appeal No. 101 of 1964 is filed by the State against the acquittal of the Excise Inspector (the first accused) and Criminal Appeal No. 58 of 1964 by the second accused K.P. Ebrahim Kunju, Preventive Officer against his conviction under S.5 (2) read with S.5 (i) (d) of the Prevention of Corruption Act and sentence of imprisonment for two years in Criminal Case No.1 of 1963 on the file of the Special Judge, Trivandrum. 2. The prosecution case is that on 1-4-1962 the first accused Excise Inspector and his subordinate the Preventive Officer accused 2, with eight other subordinates went out to patrol the prohibition area of Kulathoor Village in Neyyattinkara Taluk to detect prohibition offences and they arrested Pw. 2 who was actually selling toddy and Pws.1 and 3 who happened to pass by that way at the moment and tied the hands of all the three and belaboured them. Having done that accused 1 and 2 abused their position as Government servants by demanding Rs. 100/- as illegal gratification for releasing them and obtained Rs. 50/- at about 3 p. m. on 1-4-1962 near the Fair Price Shop of Pw. 11 and then released them on bail. 3. The facts that accused 1 and 2 are Government Servants and they arrested Pws.1 to 3 on 1-4-1962 and released them on bail are all admitted and well proved. The defence would however contend that while Pw. 2 was arrested at Thumpakal Purayidom Pw.1 who was found in possession of arrack was arrested at Parathiyoor Purayidom and Pw. 3 who was also found in possession of toddy while passing along the public road near Thumpakal Purayidom and each one of them was released on bail at the place of arrest itself. The receipt of Rs. 50/- by accused 2 as illegal gratification for releasing Pws.1 to 3 on bail is denied by both the accused who contended that the whole case was a concoction by the Nadars of the locality who were freely dealing in illicit liquor in that prohibition area and whom the two Excise Officers were ruthlessly prosecuting for prohibition offences for some time past. 4. Fifteen witnesses were examined for the prosecution. 4. Fifteen witnesses were examined for the prosecution. Pw.1 Rassalam says that on 1-4-1962 at about 10' clock while he was walking along the river bank near Thumpakal Purayidom on his way to Arumanoor one among the Excise party asked him to stop and when he ran away from the place saying that he was an innocent way-farer he was pursued by accused 2 and another and in spite of his protestation of innocence his hands were tied with his own cloth and he was beaten and taken to the place where Pws. 2 and 3 were seated with hands tied. Then accused 2 wrote something and he was compelled to sign it without being made aware of the contents. Some people who gathered including Pw. 8 represented that he was innocent and demanded his release. Accused 2 then said that as the case was one registered by the Inspector it was not possible to release him except on payment of Rs. 100/-. The amount was later reduced to Rs. 50/-. Pw. 2's son Pw. 4 was then sent to the fifth accused's house to bring the amount and he and the two other arrested persons were led to Pw. 11's ration shop. Accused 1 sat on a bench in front of the ration shop and a little later Pws. 4 and 10 came up and Pw. 10 received Rs. 50/- from Pw. 11 and gave it to accused 2 at about 2.30 p. m. No sooner than the amount was paid the excise party left the place permitting the arrested persons to go. Some of his relations asked the Inspector whether any case has been taken against him and Was told that no case was taken and if they go to him on Friday he can come away without any case. However he did not go to the Inspector but sent a complaint petition to the Anti-Corruption Department. Ext. P-1 is the petition. It was received at the office on 6-4-1962. His statement was recorded by the Anti-Corruption Police, that statement being Ext. P-2. Pw.1 contested the case charged against him by the accused under the Prohibition Act and was acquitted, Ext. P-4 being the judgment in that case. In the lengthy cross-examination of this witness nothing to discredit him is brought out. It was received at the office on 6-4-1962. His statement was recorded by the Anti-Corruption Police, that statement being Ext. P-2. Pw.1 contested the case charged against him by the accused under the Prohibition Act and was acquitted, Ext. P-4 being the judgment in that case. In the lengthy cross-examination of this witness nothing to discredit him is brought out. There is not even a suggestion that he was involved in any prohibition offence on any former occasion. His reference to the person who received the bribe "as a lean tall constable" in Ext. P-1 petition is proof positive that the complaint of bribery is not one concocted to get accused 2 or accused 1 transferred from the place because of their strictness in prosecuting offenders under the Prohibition Act. Pw. 2 Nallathambi alias Chotta seems to be a notorious distiller and seller of arrack. He readily admits that he was selling toddy when the Excise Party surrounded him on 1-4-1962. He admits his previous conviction as also in the case charged for the incident on 1-4-1962 on a plea of guilty. He corroborates the evidence of Pw.1 and adds how Pws.1 to 3 and himself were taken to the ration shop of Pw. 11 and how Pw. 10 obtained Rs. 50/- from Pw. 11 and paid to accused 2 when accused 1 was seated on the bench. To say that this stooge of the Excise party concocted this complaint and then admitted his guilt and got himself very leniently punished is to say the least rather strange. To impose a fine of Rs. 150/- for a second offence against the mandatory provisions of the Act cannot be explained unless the prosecutor and the court had been over-indulgent to the offender. From Pw. 2's evidence toddy drinking and selling seem to be a merry pastime carried on without any interference from any prohibition staff in Kulathoor Village. The plea that accused 1 took up 430 prohibition cases during the 22 months of his Excise Inspectorship at Amaravila only shows that the offenders were not impressed with the strictness of the Excise Officers accused 1 and 2 and that their action was ineffective. The plea that accused 1 took up 430 prohibition cases during the 22 months of his Excise Inspectorship at Amaravila only shows that the offenders were not impressed with the strictness of the Excise Officers accused 1 and 2 and that their action was ineffective. It appears strange why the Nadars of Kulathoor Village waited till 1-4-1962 to complete the registration of 430 Prohibition offences by accused 1 and party to take steps for the transfer of accused I and 2 by a false complaint of bribery. Any way I agree with the learned judge that the evidence of Pw. 2 can well be accepted along with the other evidence in this case. He has not signed in the complaint-petition Ext. P-8 and has no enmity to perjure against his erstwhile benefactors. Pw. 3 is Chellakannu who describes how he was arrested by the Excise Party on 1-4-1962 at about 12 noon while passing along the road and taken to the place where Pw. 2 used to sell toddy. There he found Pw. 2 with his hands tied. Then Pw.1 was also brought up to the place with his hands tied up. When some people who gathered represented that he and Pw.1 were innocent, accused 2 said it was not so and they could be released only on payment of Rs. 100/- and then agreed to be satisfied with Rs. 50/-. He goes on to describe how Pws.1 to 3 were taken to the ration shop of Pw. 11 from where Pw. 10 borrowed Rs. 50/-and paid to accused 2 who was standing close to accused 1 who was seated on a Bench. He was also charged under the Prohibition Act but was acquitted as is evidenced by Ext. P-7 judgment. He corroborates the evidence of Pws.1 and 2 fully. Nothing worth the name is brought out why Pw. 3 should perjure against the Excise Officers whom he does not even know well. He is one who has no previous conviction in any prohibition offence and the charge on 1-4-1962 ended in acquittal. He has not signed the complaint petition. On the whole, the three witnesses Pws.1 to 3 arrested on 1-4-1962 have no reason to perjure. They are believed in toto by the learned Special Judge and I find no reason to differ. 5. Pw. 4 Ponnayyan is the twelve-year-old son of Pw. 2 who was sent by Pw. He has not signed the complaint petition. On the whole, the three witnesses Pws.1 to 3 arrested on 1-4-1962 have no reason to perjure. They are believed in toto by the learned Special Judge and I find no reason to differ. 5. Pw. 4 Ponnayyan is the twelve-year-old son of Pw. 2 who was sent by Pw. 2 to Pw. 5 for borrowing Rs. 50/- to be given to the Excise Officer. He goes to Pw. 5 and then with Pw. 10 goes to Pw. 11 from whom Pw. 10 borrowed Rs. 50/-. He does not mention to whom the money was paid. His evidence is an important link in the chain. Pw. 5 Chellappa Nadar is related to Pw. 2 to whom Pw. 4 was sent for getting Rs. 50. As he had no money with him he sent his son Pw. 10 to Pw. 11 his brother-in-law for getting the amount. When he returned in the evening he was told by his son Pw. 10 that he obtained Rs. 50/- from Pw. 11 the grandmother's sister's son of Pw. 2. Pw. 11 is the brother-in-law of Pw. 5 and that accounts for the readiness with which he paid the amount. Pw. 6 Walsalam Rose is a clerk in the Transport Department and related to Pw. 1. He knew about Pw. 1's arrest by the Excise Party on 1-4-1962 itself. He went and saw accused 1 seated on the bench near Pw. 11's ration shop and Pws.1 to 3 kept in custody there. He approached the accused first in vain and then went to the house of Pw. 13, M.L.A. Kunjukrishnan Nadar & went with him to the house of accused 1 to interfere on behalf of Pw.1 whom he thought to be innocent. As the first accused was not in his house then, he got a letter from Kunjukrishnan Nadar and handed it over to accused 1. Ext. P-3 is that letter Pw. 7 Ponnayya Nadar lives near Pw. 11's ration shop. He saw Pws.1 to 3 arrested and brought to Pw. 11's ration shop. He saw the boy Pw. 10 getting Rs. 50/- from the shop and giving it to accused 2 when accused 1 was seated on a bench closely. Pw. Ext. P-3 is that letter Pw. 7 Ponnayya Nadar lives near Pw. 11's ration shop. He saw Pws.1 to 3 arrested and brought to Pw. 11's ration shop. He saw the boy Pw. 10 getting Rs. 50/- from the shop and giving it to accused 2 when accused 1 was seated on a bench closely. Pw. 8 Haris Nadar says he saw Pws.1 to 3 arrested by the excise party on 1-4-1962 and that he asked accused 2 to release Pws.1 and 3 whom he knew to be men of good conduct. Accused 2 then demanded Rs. 100/- as it is a case detected by accused 1 Inspector and when the witness insisted that they were innocent accused 2 reduced the amount to Rs. 50/-. They then went to Pw. 11 's shop and accused 1 sat on a bench in front of the shop. Pw. 10 got money from Pw. 11, counted five ten-rupee notes and gave it to accused 2. Pw. 10 a college student is the son of Pw. 5. He swears that Pw. 2's son went to his father for Rs. 50/-. As he had not the money with him he asked the witness to get it from Pw. 11 which he did and handed the amount to an Excise Officer whom he identified as accused 2. He saw accused 1 seated on a bench close by and Pws.1 to 3 in custody near the ration shop. Pw. 11 is Pw. 10's uncle. There is ring of truth in his evidence. No reason is brought out why the college student should perjure. Pw. 11 is Anthrose Nadar the ration shop keeper who loaned Rs. 50/- to Pw. 10 who paid it to accused 2. He says accused 1 was present when Pws.1 to 3 were brought to his shop by the Excise Party on 1-4-1962. He saw Pw. 10 handing over Rs. 50/- to accused 2. There is absolutely no reason why this apparently respectable ration shop keeper should perjure against the Excise Officers. The truth of his evidence was sought to be challenged on the ground that he had no occasion to come to the ration shop as it was a Sunday and had not entered the payment in his accounts. 50/- to accused 2. There is absolutely no reason why this apparently respectable ration shop keeper should perjure against the Excise Officers. The truth of his evidence was sought to be challenged on the ground that he had no occasion to come to the ration shop as it was a Sunday and had not entered the payment in his accounts. He says that often on Sundays he used to come to his shop in the afternoon after going to the church to prepare the statement and get the change converted into currency notes from jaggery traders who used to go over to get the change. There is also no reason why he should be particular of entering the payment of Rs. 50/- made to a relation which would be returned immediately. There is absolutely no reason to doubt the truth of his evidence. Pw. 12 is Raman Pillai a neighbour who has a property within 150 feet of the shop. On that day as usual after his noon meals he had been to the property when his attention was attracted by the crowd in front of the shop. He went near and saw accused 1 seated on a bench and accused 2 standing near by and three persons standing in front. Two of them were saying to the first accused that they were innocent and the truth could be ascertained by asking the men of the place who had gathered there. He goes on to say how accused 2 called aside a Nadar and talked something and later Pw. 10 got Rs. 50/- from Pw. 11 and paid accused 2 after which accused 1 and 2 and party left the place. He is an absolutely disinterested witness and the only suggestion made against him is that accused 1 had charged a prohibition case against a son of his uncle a fact which the witness was not even aware of. Pw. 13 is M.L.A. Kunjukrishnan Nadar. He swears that on the 3rd Pw. 1 Rassalam went to him in the company of some others and reported that the Excise Inspector had taken a false case against Rassalam and one Chellakannu (Pw. 3) and though they took a bribe of Rs. 50/- saying they would be let off they came to know that they were going to charge the case. 1 Rassalam went to him in the company of some others and reported that the Excise Inspector had taken a false case against Rassalam and one Chellakannu (Pw. 3) and though they took a bribe of Rs. 50/- saying they would be let off they came to know that they were going to charge the case. The next morning after making personal enquires about the complaint he proceeded to the house of accused 1 to talk about it. As accused 1 was not available he gave Ext. P-3 letter to be given to the Inspector and sent a petition to the Prohibition Minister. He is a respectable and absolutely disinterested witness and there is no reason why his evidence should not be accepted to the extent it goes. 6. Having carefully analysed the entire evidence, we find an over-abundance of naturalness and rustic simplicity in the narration of events. The slight discrepancies and omissions in the evidence only proclaim the truth of the story given out by them. Pw. 4 a twelve-year-old son of Pw. 2 says how he went to Pw. 5 first to get money and then to Pw. 11 with Pw. 10 who got the money and paid it for the release of his father and two others on 1-4-1962. But he does not say to whom the money was paid. If the case had been a concoction against the excise officers because of their strictness in prosecuting prohibition offenders in the boy's evidence the name of the accused who received the money would not have been omitted. The untutored veracity of Pw. 10 and Pw. 11 impressed me most and the explanation of the accused why the charge for bribery is made against them does not at all fit in with the circumstances of the case. The earliest complaint is that made in Ext. P-1 petition and there accused 2 is not mentioned with any unerring certainty. If enmity against the Excise Officers had been the moving motive for the case, it would not have been so. If wreaking vengeance against accused 1 for taking 430 cases certainly he would have been given a more prominent part than an ineffective seat on the bench. The learned advocate for the second accused laid much stress on the improbability of the Excise Officers receiving the bribe of Rs. If wreaking vengeance against accused 1 for taking 430 cases certainly he would have been given a more prominent part than an ineffective seat on the bench. The learned advocate for the second accused laid much stress on the improbability of the Excise Officers receiving the bribe of Rs. 50/-in currency notes so openly in a public place in the presence of a crowd. In the first place accused 1 was the only officer in uniform and he cleverly avoided receiving the bribe. The principal offender accused 2 was in mufti in the midst of several others so much so he was referred to as a lean tall constable. The money was taken to Pw. 2 first by Pw. 10 who handed it to accused 2 as per direction of Pw. 2. The moment was not one for ultra carefulness. Perhaps this was not the first attempt in the line and the officers could never have thought that the illiterate Nadars of the place could afford to complain against the Excise Officers on whose leniency they had to depend for thriving in trafficking in liquor. The fact that accused 2 received Rs. 50/- on 1-4-1962 at about 3 p. m. to release Pws.1 to 3 on bail and they were so released is proved beyond all shadow of doubt and his conviction and sentence do not call for interference from this court. 7. As for the appeal against acquittal of accused 1, I regret I am unable to interfere with it. There is no evidence that he personally demanded illegal gratification or received it and as such it is not possible to find that he obtained any valuable thing or pecuniary advantage by corrupt or illegal means or by abusing his position as a public servant. It was contended by the learned State Prosecutor that as there is ample evidence in the case to prove that it was in the immediate presence of the first accused who is his official superior and the leader of the Excise Party and it is with his knowledge that the amount was received by the second accused the first accused has abetted the commission of the offence by intentionally aiding the acts and by illegally omitting to prevent him from doing it and he is liable under S.107 of the Indian Penal Code. But "mere failure to prevent the commission of the offence is not by itself an abetment in the absence of anything to show that the accused helped in or instigated the commission of the offence" (vide Upendra Chandra v. Emperor - AIR. 1941 Calcutta 456) nor does "the omission by a public servant to bring to the notice of the higher authorities offences by the fellow servant amount to abetment of the offence though it may form the foundation for a disciplinary action against him in a departmental way" (vide In re Ananthachari - AIR. 1938 Madras 996). The decisions cited by the learned State Prosecutor - Queen Empress v. Latifkhan - I.L.R. XX Bombay 394 and The Queen v. Kali Churn Gangooly - (1872) XXI Weekly Reporter (Criminal) 11 do not afford any guidance since the former was dealing with the case of a police-man standing by acquiescing in an assault committed by another policeman for the purpose of extorting a confession and the latter related to a case where a Head Constable enabled other policemen to resort to violence by keeping out of the way with the knowledge that while he was out of the way steps would be taken by the others for the purpose of detecting a crime. They are cases where the policeman was legally bound to prevent the commission of the offence and are of no help in assessing the criminal liability of an accused as in this case who was not under any such legal obligation. Had it not been for the legal shackles that bind me, I would not have desisted from interfering with the acquittal of the first accused. However, I must assert that the Excise Inspector does not leave the dock without a dark cloud against his integrity and strictness. It was argued that he has very cleverly allowed his subordinate to take the bribe which could be divided between them leisurely. It might be so. Anyway if he could passively witness his subordinate obtaining Rs. 50/- openly under his very nose for releasing on bail the prisoners he had arrested, he must be either a moron in intelligence or a clear rogue who in either case deserves to be hauled up in a disciplinary action by the department. A copy of the judgment will be forwarded to the Head of the Department for necessary action. 8. A copy of the judgment will be forwarded to the Head of the Department for necessary action. 8. In the result the judgment of the learned Special Judge is confirmed and both the appeals are dismissed. Dismissed.