Judgment O. N. Asthana, J. 1. All these four appeals have been preferred against the judgment and order of Special judge, C. B. I. , South Bihar, Patna passed on 31st March, 1993 in Special Case No.31 of 1986, where the learned Special Judge held accused appellant Hansel Augustine Shaw guilty for the offence punishable under Sec.161, I. P. C. and under section 161 read with Sec.120-B, i. P. C. and for the offence punishable under Sec.5 (l) (d) read with Sec.5 (2) of the prevention of Corruption act, 1947; and held the other accused-appellants J. K. P. Sinha, S. N. P. Verma and Yashpal Ahuja guilty for the offence punishable under Section 161 read with Sec.120-B of the indian Penal Code, giving the findigns while these accused persons had gone to search the residential premises of the informant Baidyanath prasad in the evening on 21st March, 1986 and Hansel Augustine Shaw along with other accused persons agreed to carry the illegal act of demanding illegal gratification of rupees five thousand and in pursuance thereof collected Rupees three thousand by illegal means from baidyanath Prasad as the reward for non-performance of their duties to search the premises of the informant baidyanath Prasad. 2. The trial judge awarded the sentence of two years rigorous imprisonment to the accused-appellant hansel Augustine Shaw for the offence committed under Sec.161 i. P. C. and awarded the sentence of one year rigorous imprisonment for the offence committed under Section 161 read with Sec.120-B, I. P. C. and further awarded the sentence of one year rigorous imprisonemnt and a fine of Rupees five thousand for the offence committed under Section 5 (1) (d) read with Sec.5 (2) of the Prevention of Corruption Act, 1947, and in default of fine the sentence of three months rigorous imprisonment; and all the sentences to run concurrently. The other accused appellants J. K. P. Sinha, S. N. P. Verma and Yashpal Ahuja have been awarded the sentence of one year rigorous imprisonment for the offence committed under Sec.120-B read with Sec.161, I. P. C. 3. The trial Judge acquitted the accused-Mithilesh Kumar Singh and sri Mant Narain Singh holding that they were not concerned with the conspiracy, to collect the illegal gratification. 4. The trial Judge acquitted the accused-Mithilesh Kumar Singh and sri Mant Narain Singh holding that they were not concerned with the conspiracy, to collect the illegal gratification. 4. The firm Vishwakarma Body builders situate at Kurjee within digha Police Station, which was managed by the informant of this case Sri Baidyanath Prasad, came within the ambit of the excise duty as the Central Government in the budget during the month of february, 1986, included the bodybuilding of Trucks and Buses under the excise duty. In view of it the central Excise Department started the survey of the works which were engaged in body-building of Trucks and Buses. Accused-appellant S. N. P. Verma was the Inspector, Central Excise of Digha Centre of Bankipur range, Patna. S. N. P. Verma, Inspector, Central Excise placed his report (exhibit-2/3) dated 20th March, 1986 relating Vishwakarma, Body Builders before the Assistant Collector, central Excise Division, Patna. On 21st March, 1986 Sri W. D. G, Imtee, assistant Collector of Excise, Patna (P. W.2) discussed the matter with the help of legal Superintendent h. A Shaw, and Sri Imtee got prepared a search-warrant for securing the books of accounts of Vishwakarma Body Builders (as the account-books were not available to s. N. P. Verma, Inspector in workshop premises of Vishwakarma Body builders ). 5. For the search of residential premises of the Manager Baidyanath rasad situate in Kankarbagh Colony, residential house No. H-98, S. B. I. Colony, Kankarbagh, the excise officials H. A. Shaw, Superintendent and the Excise Inspectors J. K. P. Sinha, s. N. P. Verma, Yashpal Ahuja, Sri mant Narain Singh, Mithilesh Kumar singh arrived at the residential house of Baidyanath Prasad situate in kankarbagh at about 4.30 P. M in the official car. As Baidyanath Prasad was not there in the house, they sat in the drawing room of the house and waited for Baidyanath Prasad. 6. As Baidyanath Prasad was not there in the house, they sat in the drawing room of the house and waited for Baidyanath Prasad. 6. Baidyanath Prasad lodged a report in writing same day on 21.3.1986 after 4 P. M. to Superintendent of Police, C. B. I. , Patna with the allegations when he reached his residential house at about 4 P. M. he found four persons in civil dress and two persons in uniform with metal badges of Central Excise and Customs sitting in his drawing room and as soon he entered into his Drawing room one person introduced himself as H. A. Shaw, Superintendent, central Excise and he introduced his other Inspectors Sri H. A. Shaw told him that he has come to search the informants house, they might arrest the informant because the informant had not been paid the excise duty for the body building of the buses in the firm : Vishwakarma Body builders. Further H. A. Shaw showed him one paper and forced Baidyanath prasad to put his signature over it. Further Sri H. A. Shaw demanded rupees five thousand from baidyanath Prasad telling if he would not pay the amount they will arrest him and all his family members. The other Inspector too threatened the informant Baidyanath Prasad to pay the illegal gratification otherwise the informant and his family members might be arrested by them. The concession was given that Sri Baidyanath prasad should pay at least rupees three thousand immediately and might pay Rupees two thousand next day. 7. As Baidyanath Prasad was not willing to pay any illegal gratification he told them and came out of the house to arrange the sum of rupees three thousand; and thus he arrived to meet S. P. , C. B. I. and to narrate the above said facts lodging the complaint. 8. According to the prosecution s. P. , C. B. I. deputed D. B. Singh, Sub-Inspector, C. B. I. (P. W.3) to verify the truth in the allegations of the complaint of Baidyanath Prasad. D. B. Singh submitted his verification report (Exhibit-3 ). 9. On the directions of S. P. , c. B. I. the trap party was arranged and Sri A. B. Gupta Inspector, C. B. I. (P. W.11) was deputed as the leader of this trap party. D. B. Singh submitted his verification report (Exhibit-3 ). 9. On the directions of S. P. , c. B. I. the trap party was arranged and Sri A. B. Gupta Inspector, C. B. I. (P. W.11) was deputed as the leader of this trap party. Sri S. K. Das, P. W.7 of Central Bank of India and Sri r. C. Choudhary, P. W.4 of Food Corporation of India were included as independent witnesses in this trap party. Further besides the informant baidyanath Prasad (P. W.6), B. N. Singh, Head-constable, C. B. I. (P. W.9), kailash Nath, Constable, C. B. I. (P. W.8), Brahmdeo and Anil Singh, constables, C. B. I. joined the trap party. The independent witness Sri s. K. Das was deputed the shadow witness by Sri A. B. Gupta, leader of the trap party. 10. Sri A. B. Gupta introduced baidyanath Prasad to all the members of the trap party and Sri Gupta read over the complaint of Sri baidyanath Prasad to these members of the trap party. Sri A. B. Gupta demonstrated the reaction of phenop theline powder on the solution of sodium carbonate before the trap party. Further Sri A. B. Gupta told sri S. K. Das to follow the informant baidyanath Prasad in order to overhear and also to see the demand and acceptance of the bribe money by h. A. Shaw, if any. It was finalised that Baidyanath and Sri S. K. Das shall be giving the signal by rubbing the face with the help of handker shief and thus the other members of the trap party will rush to be near sri H. A. Shaw. Baidyanath Prasad told that he would introduce S. K. Das as his Munim of. . . . . (sic) to Sri h. A. Shaw in his drawing room. Further Sri Baidyanath Prasad gave rupees three thousand to Sri A. B. Gupta, and these currency notes were tainted with phenopthelin powder after noting their numbers, and Sri a. B. Gupta directed Baidyanath prasad giving back those currency notes that he will pay these currency notes to Sri H. A. Shaw when the demand is made by him. Personal search of all the members of the trap party was made as well. Personal search of all the members of the trap party was made as well. A pretrap memorandum (Exhibit-7) was prepared incorporating the numbers of the currency notes, the facts relating the demonstration of phenop theline powder on the solution of sodium carbonate and its preservation and the personal search made by the members of the trap party. This pre-trap memorandum (Exhibit-7)was signed by the members of the trap party. Thereafter all the members of the trap party arrived in a car at the residence of Baidyanath prasad in Kankarbagh. 11. Sri Baidyanath Prasad entered inside the drawing room of his house and he introduced Sri S. K. Das as his Munim to the Excise Superintendent Sri H. A. Shaw. Shri shaw inquired from Baidyanath prasad whether he brought Rupees three thousand, and Baidyanath prasad replied in affirmative and baidyanath Prasad handed over those phenoptheline powder tainted currency notes to Sri H. A. Shaw. Sri H. A. Shaw took them in his right hand asking howmuch amount it was, and sri H. A. Shaw counted those currency notes and he put that money in the left pocket of his pant. Further sri H. A. Shaw asked Baidyanath prasad to meet him next day and to pay him rupees two thousand (balance amount ). While handing over these currency notes to Sri H. A. Shaw the informant Baidyanath and sri S. K. Das gave the signals and all other members of the raiding party entered inside the drawing room and surrounded Sri H. A. Shaw. Sri A. B. Gupta, Inspector, C. B. I. and leader of the trap party inquired from H. A. Shaw whether he had taken the illegal gratification of Rupees three thousand. The search of the person of Sri H. A. Shaw was taken by Sri a. B. Gupta, and the amount of rupees three thousand was recovered from the pocket of the pant of Sri h. A. Shaw, and Sri A. B. Gupta checked the numbers of these recovered currency notes from H. A. Shaw with the numbers noted earlier in the pre-trap memorandum (Exhibit-7), and the numbers of the recovered currency notes tallied with the numbers noted earlier by Sri a. B. Gupta in the pre-trap memorandum. The other accused persons sitting in the drawing room were also searched by Sri A. B. Gupta. 12. The other accused persons sitting in the drawing room were also searched by Sri A. B. Gupta. 12. Sri A. B. Gupta prepared the solution of sodium carbonate in three separate glasses and Sri H. A. Shaw dipped the fingers of left and right hands in two glasses and the solution turned pink. The pant pocket of Sri H. A. Shaw was dipped in the solution of sodium carbonate of third glass and it also turned pink. These solutions of three glasses were separately sealed under the signatures of the witnesses; and later sent for chemical examination. Sri A. B. Gupta prepared the post-trap memorandum (Exhibit-7/1) noting recovery of phenoptheline powder tainted currency notes from the pocket of the pant of Sri H. A. Shaw, washing of the fingers and the pant pocket of Sri h. A. Shaw in the solution of sodium carbonate enumerating the details. This post-trap memorandum (Exhibit-7/1)was signed by Sri H. A. Shaw and its copy was given to Sri H. A. Shaw as well. Relating the search of other accused persons the memoes are Exhibits 10 to 10-D. 13. After investigation the charge-sheet was submitted against six accused persons. The co-accused mithilesh Kumar Singh and Sri Mant narain Singh were acquitted by the trial court on the facts initially they were called to join the trap party from different range offices, and all along they remained outside the residence of Baidyanath Prasad and they never entered in the drawing room of Baidyanath Prasad. 14. The prosecution examined R. R Pal, P. A. to Collector, Custom (P. W.1), Sri W. D. G. Imtee, Assistant collector Excise, Patna (P. W.2), D. B. Singh, the then Sub-Inspector, C. B. I. (P. W.3), Ram Chandra Chaudhary (P. W.4), Dr. A. Chatterjee (P. W.5), baidyanath Prasad (P. W.6), S. K. Das (P. W.7), Kailash Singh, Constable (P. W.8), Bishwanath Singh, Head-Constable (P. W.9), s. K. Prasad, Constable (P. W.10), A. B. Gupta, inspector (P. W.11) and D. S. Yadav, investigation Officer (P. W.12 ). 15. A. Chatterjee (P. W.5), baidyanath Prasad (P. W.6), S. K. Das (P. W.7), Kailash Singh, Constable (P. W.8), Bishwanath Singh, Head-Constable (P. W.9), s. K. Prasad, Constable (P. W.10), A. B. Gupta, inspector (P. W.11) and D. S. Yadav, investigation Officer (P. W.12 ). 15. The trial Judge primarily took into consideration the fact that the search party led by Sri H. A. Shaw sat in the drawing room of the informant for several hours and in usual course they should have gone to the Advocate of the informant as informant told them that he was going to his Advocate to bring the papers and books maintained by vishwakarma Body Builders, and otherwise why Sri H. A. Shaw did not make the search of the residential premises of Baidyanath Prasad to get hold the accounts-books and papers relating to Vishwakarma Body builders; that the evidence of the independent witnesses and the informant was reliable ; that the accused h. A. Shaw put his signature on the post-trap memorandum and thus confirmed the recovery of tainted currency notes from his person; and that no show cause notice was issued in writing against the proprietors of vishwakarma Body Builders before issuing the search-warrant. Relating the charge of conspiracy the trial judge found that the accused S. N. P. Verma reported the matter relating vishwakarma Body Builders. H. A. Shaw advised Assistant Collector customs in the matter to issue search-warrant, the accused J. K. P. Sinha was wearing the dress of the excise Department, accused Yashpal ahuja was working in the same range, and he was there in the drawing room and also sent a message through telephone to Assistant Collector Customs in the evening and thus their conduct showed that they entered into a conspiracy to collect bribe from Baidyanath Prasad. 16. Relating the charge of abatement the trial Judge held that there was no prosecution evidence to show if any of these accused persons had intentionally added by act or by illegal omission in the commission of this crime of collecting the bribe. 17. The prosecution examined the formal witnesses R. H. Pal, P. W.1, Dr. A. K. Chatterjee, P. W.5, S. K. Prasad, P. W.10 and D. S. Yadav, P. W.12, R. H. Pal P. W, 1, Personal Assistant to Collector, Customs proved the sanction for prosecution of these accused- appellants-Exhibit-1. 17. The prosecution examined the formal witnesses R. H. Pal, P. W.1, Dr. A. K. Chatterjee, P. W.5, S. K. Prasad, P. W.10 and D. S. Yadav, P. W.12, R. H. Pal P. W, 1, Personal Assistant to Collector, Customs proved the sanction for prosecution of these accused- appellants-Exhibit-1. Whatever records and collected evidence was placed by C. B. I. before the Collector, customs, the sanction was granted to prosecute. Dr. A. K. Chatterjee P. W.5 proved his report relating chemical examination of the solution of the phenopthelin in sodium carbonate. S. K. Prasad P. W.10 formally proved the first information report D. S. Yadav P. W.12 carried formal investigation in the case. W. D. G. Imtee P. W.2 stated on oath that he was Assistant Collector central Excise at Patna since 1985, and Digha Sector was under his jurisdiction; that on 1st March, 1986 central Finance Ministry circulated notification 162-CE and thereby new units of body building of Buses and trucks were brought under Licencee taxing them with the excise duty. Accordingly he instructed all his twelve range Officers to prepare a report relating the body-building units. He stated further that he received the report prepared by S. N. P. Verma, excise Inspector-cum-Sector Officer, digha Sector forwarded by his Range superintendent-K. P. Mishra, and he found through the report that vishwakarma Body Building Factory had recently removed one built Bus body and they were not showing the accounts book to the Inspector S. N. P. Verma. Thus he himself visited Vishwakarma Body Building Factory on 20th March, 1986 along with S. N. P. Verma and. K. P. Mishra and the proprietor and Manager of the factory were not available, and he told the workers to tell the Proprietor of the factory that the Proprietor should visit him in his office next following day on 21st March, 1986 in the forenoon. As the Proprietor/manager did not come to his office he decided and finally sent the search warrant to seize the documents of vishwakarma Body Builders. Further he nominated Sri H. A. Shaw, Superintendent and S. N. P. Verma, J. K. P. Sinha, Yashpal Ahuja, Mithilesh kumar Singh and Mant Narain Singh to go to the residence of the proprietor/manager at Kankarbagh and to seize the documents and H. A. Shaw, Superintendent was made the head of the team to supervise the search. Further he nominated Sri H. A. Shaw, Superintendent and S. N. P. Verma, J. K. P. Sinha, Yashpal Ahuja, Mithilesh kumar Singh and Mant Narain Singh to go to the residence of the proprietor/manager at Kankarbagh and to seize the documents and H. A. Shaw, Superintendent was made the head of the team to supervise the search. This witness told further at about 6 P. M. he received a telephonic call from Mr. H. A. Shaw that the Proprietor/manager were not available at the residence, and he instructed them on telephone to wait for some more time at the residence of the Proprietor/manager and to complete the allotted work. This witness told further earlier at 4.30 P. M. or about S. N. P. Verma came on the office Vehicle and told him that the proprietor/manager were not found at the residence and thus he wanted to go to the factory of the complainant situate at Kurjee fourteen kilometres away, and approving it he sanctioned money for petrol. The statement of Sri W. D. G. Imtee shows further that the accused J. K. P. Sinha and Yashpal Ahuja was requisitioned from other sectors. The prosecution has not suggested to Sri W. D. G. Imtee (P. W.2) if he had any bias for any of these employees/accused appellants or any hostility with the proprietor/manager of Vishwakarma body Builders. 18. D. B. Singh, Sub-Inspector, c. B. I. (P. W.3) stated on oath in his examination-in-chief that he went to the house of Baidyanath Prasad and he formally proved his signatures on the verification report (Exhibit-3 ). This witness has not stated on oath who/which authority directed him to go and to give this verification report. The prosecution has not filed any written order having direction for d. B. Singh to go to the spot to verify the complaint of Baidyanath prasad and to give his verification report. This witness D. B. Singh has not stated in his examination-in-chief on oath what he saw and what he heard at the residence of Baidyanath prasad. This creates a doubt if he really visited the residence of baidyanath Prasad and if he made any actual verification relating the allegations made in the complaint by baidyanath Prasad and if the report (Exhibit-3) is bona fide. 19. This creates a doubt if he really visited the residence of baidyanath Prasad and if he made any actual verification relating the allegations made in the complaint by baidyanath Prasad and if the report (Exhibit-3) is bona fide. 19. The witnesses of fact are baidyanath Prasad P. W.6, the public witnesses-Ram Chandra Chaudhary, p. W.4, and S. K. Das, P. W.7 and the employees of the C. B. I. , namely Sri a. B. Gupta, Inspector, C. B. I. (P. W.11) and Bishwanath Singh, Head-Constable, C. B. I. (P. W.9) and kailash Singh, Constable, C. B. I. (P. W.8 ). 20. Baidyanath Prasad P. W.6 stated on oath that Vishwakarma body Builders was owned by his brother Pankaj Kumar and he him-self managed this unit Vishwakarma body Builders, and he and his brother Pankaj Kumar lived together at S. B. I. Colony, Kankarbagh. This witness Baidyanath Prasad passed b. Sc. Degree course in 1974. In para 5 of his statement Baidyanath Prasad stated that he, S. K. Das and Ram chandra Chaudhary came in the drawing room where he gave the amount of Rupees three thousand to h. A. Shaw. In para 31 of his statement this witness Baidyanath Prasad stated in the Court that he met H. A. Shaw for the first time at his residence at 630 P. M. 21. This witness Baidyanath prasad P. W.6 stated in para 12 of his statement that Vishwakarma Body builders did not produce any account-books and records in Central excise office before the Collector, customs. Vishwakarma Body Builders was assessed Rupees forty-two thousand as excise duty and a fine of rupees five thousand was also imposed. 22. Ram Chandra Chaudhary, p. W.4 stated on oath that same day on 21st March, 1986 in the evening he was the witness in the C. B. I. raid where Bank Manager-Verma was caught accepting the bribe. This witness admitted that in his earlier statement to the Court in Vermas case he stated that he along with raiding party reached the residence of Baidyanath Prasad at 11 P. M. in the night. This witness Ram Chandra chaudhary failed to tell what was recovered from other persons who were accompanying H. A. Shaw and were sitting in the drawing room. 23. This witness Ram Chandra chaudhary failed to tell what was recovered from other persons who were accompanying H. A. Shaw and were sitting in the drawing room. 23. S. K. Das, P. W.7 stated in paragraph 12 of his statement that he was the witness for C. B. I. in two other cases than the present one. Further this witness stated in paragraph 11 of his statement that he was there in C. B. I. office for the last seven or eight days when he was made a witness in this trap, and he was called by the C. B. I. Officers in connection with an investigation of the case of his office. 24. This witness S. K. Das, P. W.7 stated in paragraph 14 of his statement that he gave the statement earlier in Court in Vermas case that the proceedings of this case of Mr. Shaw and the case of Sri Varma were written and thus prepared simultaneously. (The Advocate for the appellants suggested that these alleged post-trap proceedings were written in the office of C. B. I.) 25. Mr. A. B. Gupta, team leader (P. W.11) stated in paragraph 29 of his statement that Baidyanath Prasad, s. K. Das (introduced as Munim) and h. A. Shaw went together inside the kothari attached with the drawing room, and the money was paid by baidyanath Prasad in that kothari. This statement of Sri A. B. Gupta creates much doubt in the prosecution version where the prosecution case is that the money was given to h. A. Shaw in the drawing room. 26. A perusal of the statement of Sri A. B. Gupta, P. W.11 shows that Baidyanath Prasad gave his complaint to the S. P. , C. B. I. and the S. P. , c. B. I. called upon Sub-Inspector D. B. Singh to make verification and to submit the verification report and the verification report of D. B. Singh was seen by the S. P. , C. B. I. There is no noting under the signature of S. P. , c. B. I, on the complaint or on the verification report and there is also no written order of S. P. , C. B. I. if d. S. Singh was directed to go and to prepare the verification report. The presecution for the best reasons known to them have not examined s. P. , C. B. I. The contention of the advocate for the appellants is that the S. P. , C. B. I. did not take any part and did not issue any instruction, and that the Deputy S. P. , C. B. I. Akhileshwar Prasad who happened to be a relation of Baidyanath Prasad managed this collusive show of alleged demand and acceptance of bribe by H. A. Shaw. 27. In paragraph 32 of his statement Sri A. B. Gupta stated that he cannot tell when Baidyanath Prasad met S. P. , C. B. I, with his complaint, and he cannot tell the time when s. P. , C. B. I, called him in his Chamber, or when S. P. , C. B. I, called D. B. Singh in his chamber. 28. Sri A. B. Gupta could not tell the Court what was the size of that kothari where the money was given to Sri H. A. Shaw. Further as an Investigation Officer Sri A. B. Gupta did not prepare the sketch map of that kothari. He could not tell the boundaries of the house of baidyanath (vide paragraph 45 of his statement ). 29. Mr. A. B. Gupta tried to suppress in how many case of C. B. I. S. K. Das and Ram Chandra chaudhary were the witnesses. Further he stated that he does not remember if same day C. B. I. Officials trapped and arrested Verma, Manager of Hathua State Bank accepting the bribe. Thus it is not safe to accept the statement of Sri A. B. Gupta (P. W.11 ). 30. Kailash Singh and Bish-wanath Singh, P. W.8 and P. W.9 are constable and Head-Constable of c. B. I. Obviously they are the interested witnesses. 31. The contention of the accused-appellants is that by notification No.162-CE, dated 1st March, 1986 issued by Central Finance Ministry Bus and Truck body Builders became liable to pay twenty per cent ad valorum excise duty to the central Government for manufacturing of such type of bodies for the vehicles, and in pursuance of this notification Assistant Collector, central Excise and Customs, Patna division-Mr. W. D. G. Imtee directed his Range Officers within his jurisdiction to survey and report about such manufacturer; S. N. P. Verma gave the report that Vishwakarma body Builders, Kurjee in Digha range had been manufacturing Bus bodies, and had actually recently removed body of one Bus without clearing the excise duty and books were not produced and necessary steps be taken at the Divisional level, his report is Exhibit-2/3 on the record; that on receipt of the aforesaid report of Verma Sri Imtee, assistant Collector, Customs himself visited Vishwakarma Body Builders factory on 20th March, 1986 and the proprietor/manager were not present and Sri Imtee asked the workers present there to tell the owner/manager to come to his office next day on 21st March, 1986 by 12 noon with all his documents, and such endorsement was made by the assistant Collector, Imtee on the margin of the report of Verma; as the Proprietor/manager did not reach the office of Sri Imtee, Assistant collector, Sri Imtee discussed the matter with his Subordinate Officers including Legal Superintendent H. A. Shaw in the afternoon, and with a view to secure the realisation of the excise duty decided to get the documents of Vishwakarma Body Builders by search and seizure and Sri Imtee signed the search-warrant and deputed the raiding party under Excise Superintendent h. A. Shaw calling the Excise Inspectors from different ranges under his jurisdiction; this raiding party came to the residence of Baidyanath Prasad, H.98, S. B. I. Colony, Kankarbagh in the afternoon but the owner/manager were not there, and thereafter S. N. P. Verma was sent to the office to meet sri Imtee to tell that the owner/manager were not at the house and he might go to the factory at digha to bring the owner/manager in order to get the documents and books of the factory; S. N. P. Verma met Sri Imtee and later on went to the factory and Verma did not find owner/manager in the Factory and simply he instructed the workers to send the owner/manager at the residence to meet them, and he came back to the residence of Baidyanath prasad, it was going 6 P. M. in the evening; H. A. Shaw and Yashpal ahuja came to the residence/chamber of the nearby Advocate and telephoned Assistant Collector Sri imtee to seek further instructions as the Proprietor/ Manager had not turned up yet, and Sri Imtee told them to remain there at the residence of Baidyanath Prasad and to get the work done. Thereafter baidyanath Prasad came to his residential house along with his friend Vijay Kumar. Sinha, and H. A. Shaw disclosed his identity on and showed the search-warrant (Exhibit-5)to Baidyanath Prasad and Baidyanath prasad and his friend Vijay Kumar sinha signed the search-warrant after reading the contents. Shaw made inquiry about the books and documents of Vishwakarma Body Builders, and baidyanath Prasad told him that all the books of accounts and other papers were lying in the office of his advocate and he took time to go to his Advocate and to bring the records, and Baidyanath Prasad asked shaw to wait at his residence for some time and that later Baidyanath prasad cooked up this false story with the assistance of his relation and friend Akhileshwar Prasad, deputy S. P. , C. B. I. , Patna with the allegation that Shaw demanded the illegal gratification of Rupees five thousand and collected rupees three thousand. 32. In defence the accused-appellants examined Krishna Ballabh narain Singh D. W. I, Birendra prasad, D. W.2, Vijay Kumar Singh, d. W.3, Yogendra Thakur, D. W.4 and Anil Sharan, D. W.5. K. B. N. Singh, D. W.1, Excise Superintendent, city Range, Patna stated that he received the telephonic call from Assistant Collector, Sri Imtee and he sent S. N. Singh and M. K. Singh-Inspectors of his Range to the office of Sri Imtee to work there on the instructions, of Sri Imtee. Birendra prasad, D. W.2 is the Clerk of Sri chandra Shekhar Prasad, Advocate since 1955 A. D. , and Sri Chandra shekhar Prasad, Advocate has telephone facility in his residential official chamber since 1973 A. D. This residential house of Sri Chandra shekhar Prasad, Advocate, is near the residence of Baidyanath Prasad. Birendra Prasad D. W.2 stated on oath that in the evening at about 6 p. M. the Superintendent of Excise department alongwith his Inspector came to the residential office of his advocate, and with his permission telephoned to Assistant Collector, excise that Baidyanath Prasad was neither available at the residence nor at the factory and how they should proceed further, and they were told on telephone that they should stay there at the residence for some time to await the arrival of Baidyanath prasad. Vijay Kumar Singh, D. W.3 runs his mobile oil shop in the name of Sigma Enterprises at Kankarbagh at the distance of one furlong from the residence of Baidyanath Prasad. This witness was also then President of Bihar Automobiles Workshop Association. This witness Vijay Kumar sinha D. W.3 stated on oath that in the evening at 6 P. M. or about on 21st March, 1986 Baidyanath Prasad came to his shop and told him that he should accompany him to his house as some officials of Central excise had arrived at his residence. He accompanied Baidyanath Prasad and came to the drawing room of baidyanath Prasad, and he inquired being the President of the Association why these Officials of the Excise department had arrived there. Shri shaw showed them the search warrant which they signed as well. Sri shaw inquired about the books of accounts of Vishwakarma Body builders, and Baidyanath told them that they should wait and he would be bringing the account-books and the documents of his body building factory. Baidyanath Prasad told this witness to stay in the drawing room and he remained sitting there some time talking with the Officials. Baidyanath Prasad returned at about 8.30 P. M. and Baidyanath Prasad took Sri Shaw inside the adjoining kothari. Thereafter five or six persons came inside, and they went inside the kothari and there were the loud utterences that C. B. I. Officials had arrived to recover the money. In cross-examination this witness stated specifically that the Excise Superintendent Sri Shaw did not demand any money from Baidyanath and no money was given by Baidyanath and no money was accepted by Sri Shaw. Yogendra Thakur, Driver of the vehicle of the Excise Department (D. W.4) stated on oath that after leaving Sri Shaw and other Inspectors of his Department at the residence in Kankarbagh he came back to the office along with the Inspector S. N. P. Verma, and he got filled petrol in his vehicle (Ambassader Car) after collecting money from the offices and he came to vishwakarma Body Builders factory campus and finding the proprietor/manager not there he came back to Kankarbagh residence. Then it was 6 P. M. in the evening and Sri Shaw along with the Inspector came to the Advocates house and telephoned to the Officer. Then it was 6 P. M. in the evening and Sri Shaw along with the Inspector came to the Advocates house and telephoned to the Officer. Anil sharan D. W.5 brought on record the log book of the vehicle given by the driver Yogendra Thakur as a place of corroboration to the statement of yogeadra Thakur D. W.4. 33. The Advocates for the appellants raised the grounds that the accused-appellants went to the residence of Baidyanath Prasad at kankarbagh in pursuance of the orders of the Superior Officer Sri imtee, Assistant Collector, Central excise and Customs, Patna, and these accused-appellants stayed there at the residence with the orders of the superior Sri Imtee, and for the first time Baidyanath Prasad, Manager of the factory met them at his residence at 6 P. M. or about when he came from onside along with his friend vijay Kumar Sinha D. W.3, and Sri shaw showed them the search warrant for the production of the accounts books of Vishwakarma Body builders and told them the purpose of their arrival at the residence and demanded the accounts-books and the papers of Vishwakarma Body builders for their examination in connection with excise duty, and Sri baidyanath Prasad left his house on the pretext that he was going to his advocate to bring the accounts books and the papers of the factory which were lying with the Advocate, and later Baidyanath Prasad manipulated and connected this alleged trap with the assistance of his acquaintance/relation Deputy S. P. , C. B. I.-Sri akhileshwar Prasad; that the public witnesses are the pocket witnesses of c. B. I. , and C. B. I. officials did not prefer to call any witness of the neighbourhood of Kankarbagh colony, and in that situation while C. B. I. officials took shri Shaw and other officials of Excise Department to their office in the night it was expected from Sri Shaw to put his signature on the alleged post-trap memorandum and that there were no circumstances for Sri Shaw and the other Officials of the Excise Department to conspire together to collect any bribe from Sri Baidyanath. 34. 34. Examining the report of his subordinate Inspector Sri S. N. P. Verma and finding that recently Vishwakarma Body Builders removed a manufactured Bus body from the factory without giving excise duty, the direct recruit of Central Services and youngman T. A. Imtee, Assistant Collector, Central Excise at patna enthusiastically considered it expedient to visit the factory himself and to examine the books of accounts of the factory, and finding neither the owner nor the Manager there in the factory, Sri Imtee issued the search warrant to seize the account-books as the Owner/manager did not care to turn up to his office next day; and sri Imtee constituted a team of the excise Officers under the leadership of the Excise Superintendent H. A. Shaw, and Sri Imtee asked the Inspectors of different ranges to come and to join this team led by Sri h. A. Shaw, to carry the search and to seize the books of accounts and other papers of Vishwakarma Body builders. The show-cause notice could be served in writing on the owner/manager of Vishwakarma body Builders and thus to wait for some time to get the books of accounts of the factory for examination, but it appears that the young enthusiastic officer Sri Imtee happened to issue the search-warrant so as the proprietor/manager might not manipulate or re-write the Accounts books of the factory and make changes in any other records as to avoid the payment of any excise duty. Thus absence of a show-cause notice in writing is not a factory for consideration against these accused-appellants. 35. The depositions of Sri T. A imtee P. W.2 and Birendra Prasad d. W.2 proved that the Excise Superintendent Sri Shaw telephoned his superior Sri Imtee at 6. P. M. or about in the evening to obtain instructions further in the matter informing Sri Imtee that the proprietor/manager were not available either at the residence or at the factory, and the Assistant Collector sri Imtee directed Sri Shaw and his other departmental Inspectors to stay at the residence of Baidyanath Prasad for some more time and to complete the search work to secure the records (in all probability under the impression that Baidyanath Prasad might return to his residence in the dark hours of the evening ). Thus it is evident that these accused-appellants stayed for longer hours at the residence of Baidyanath Prasad under the express direction of his superior officer Sri Imtee. Thus no ill motive can be imputed to these accused-appellants on the ground why they overstayed at the residence of baidyanath Prasad. 36. The statement of Vijay kumar Sinha D. W.3 and the statement made by Baidyanath Prasad p. W.6 in his cross-examination show that Baidyanath Prasad reached the residence at 6 P. M. in the evening and thus, Baidyanath Prasad (along with Vijay Kumar Sinha D. W.3) met sri Shaw, Superintendent, Excise and other Excise Inspectors for the first time at his residence at 6 P. M. Baidyanath Prasad is an educated man. The statement of his friend vijay Kumar Sinha D. W.3 who accompanied Baidyanath Prasad in the court on oath is that search-warrant relating the seizure of the documents was shown to him and to Baidyanath prasad and they signed it, and Sri shaw asked Sri Baidyanath Prasad to hand over the accounts-books and the documents of his factory. Thus the deposition of Vijay Kumar Sinha d. W.3 shows that no threat of any arrest of Baidyanath Prasad or his familymen was given by the officials of the Excise Department including sri Shaw as the search-warrant was shown to Baidyanath Prasad and which related for the recovery of the books of accounts and the records of the factory. Thus there was no probability of any threat of arrest being given by the Excise Officials and Sri shaw. Further the deposition of Vijay kumar Sinha D. W.3 also goes to show that no such threat of arrest was given by the excise officials including Sri Shaw to Baidyanath prasad. Thus there was no probability of any threat of arrest being given by the Excise Officials and Sri shaw. Further the deposition of Vijay kumar Sinha D. W.3 also goes to show that no such threat of arrest was given by the excise officials including Sri Shaw to Baidyanath prasad. Further the Advocate for the appellants carried this Court through the statement of Sri T. A. Imtee, assistant Collector, Customs P. W.2 and urged that these Excise Officials including sri Shaw would have received twenty percent, of the excise duty and penalty by way of reward had these officials being successful in detecting the evasion of the excise duty after examining the accounts-books and the records of Vishwakarma Body Builders, and in view of it sri Shaw and other excise officials would not have brought the idea to their mind to collect a bribe of rupees five thousand from baidyanath Prasad and to divide it amongst them, as they were likely to receive more amount by way of reward from the department with the success in getting the books of accounts and the papers of this factory. 37. Relating the independent witnesses the Advocates for the appellants pointed out that S. K. Das p. W.7 who was the shadow witness was in C. B. I. office for the last seven to eight days for interrogation in his departmental case and he was already witness in two other cases for C. B. I. , and thus hardly and reliance can be placed on the testimony of such witness. Obviously S. K. Das, P. W.7 was a pocket witness of C. B. I. Advocate for the appellants pointed out that this witness S. K. Das, P. W.7 stated in paragraphs 13 and 14 of his statement that he went inside the three rooms of the house, and Baidyanath prasad and Sri Shaw together went inside of room, and he also got an opportunity to go there, and later trap memorandum was prepared in the drawing room; and thus it is evident that Mr. S. K. Das had hardly any opportunity to witness the alleged giving and taking of the bribe. A. B. Gupta, C. B. I. Inspector (P. W.11) stated in paragraph 29 of his statement that the alleged giving and taking of the bribe took place inside the kothari. S. K. Das had hardly any opportunity to witness the alleged giving and taking of the bribe. A. B. Gupta, C. B. I. Inspector (P. W.11) stated in paragraph 29 of his statement that the alleged giving and taking of the bribe took place inside the kothari. The Advocate for the appellants pointed out that in view of these statements that the alleged giving and taking of the" bribe was transacted in the kothari the statement of Ram Chandra Chaudhary p. W.4 that the bribe was given in the drawing room having sofa-sets in it and the raid was conducted by c. B. I. officials in that drawing room is an incorrect statement on material particular. This witness Ram Chandra chaudhary P. W.4 made specific statement later in paragraph 20 of his statement that Baidyanath and Sri shaw did not enter into any side room/kothari (attached with the drawing room ). This witness Ram chandra Chaudhary P. W.4 was already a witness for C. B. I. in another earlier trap case. Thus, the deposition of Ram Chandra Chaudhary P. W.4 too does not inspire confidence. Both these public witnesses P. W.4 and p. W.7 were the trap witnesses in earlier C. B. I. case where trap was led to net Manager of State Bank, fatuha, yet the C. B. I. officials did not prefer to take steps to collect some persons of the nearby house of kankarbagh Colony to witness this alleged trap. 38. The deposition of these public witnesses are not credibile. The alleged shadow witness S. K. Das p. W.7 was the witness for C. B. I. in two other cases and besides it he was being interrogated for the last seven to eight days in CB. I. office in connection with his departmental case. 39. Further the material shift that Baidyanath Prasad took the Superintendent Sri Shaw inside the sideby kothari and gave Rupees three thousand and the same were accepted by Sri H. A. Shaw makes the prosecution case very doubtful. Really there is no reliable prosecution evidence on record to establish if the bribe was given by Baidyanath Prasad and the same was accepted by Sri h. A. Shaw. 40. Really there is no reliable prosecution evidence on record to establish if the bribe was given by Baidyanath Prasad and the same was accepted by Sri h. A. Shaw. 40. The statement of S. K. Das p. W.7 in para 14 of the cross-examination shows that this witness told that the proceedings relating both the traps (relating this alleged trap and the trap of Bank Manager)were recorded together. Further the statement of Ram Chandra Chaudhary P. W.4 in para 6 of the statement shows that he told in the court that this raid was conducted by the C. B. I. at 11 P. M. and they came back to the C. B. I. office at 11.30 P. M. in the night. This also lends credence to the statement of s. K. Das that the alleged post-trap proceedings were recorded by CB. I. Officials at C. B. I. office. All these cast a doubt if the recovery was made by the CB. I. Officials at the residence of Baidyanath Prasad and the post-trap memorandum was prepared in the regular course at the house of Baidyanath Prasad. 41. Advocate for the appellants contended that neither there was occasion nor there could be any motive for these accused appellants to collect any bribe from Baidyanath prasad, and on the other hand because Baidyanath Prasad was not keeping any record and books of accounts relating Vishwakarma Body builders (and as such records and accounts-books are not produced in the case before the Collector, Customs and excise when excise duty and penalty were assessed at Vishwakarma Body Builders), and thus baidyanath Prasad happened to conduct his acquaintance and relation deputy S. P. , C. B. I. , Sri Akhileshwar prasad in the evening after 6 P. M. and thus a manipulated trap was arranged and Baidyanath Prasad happened to thrust Rupees three thousand in the pant pocket of Sri shaw and the arrest was made, and that is why there are no notes and signature of S. P. , C. B. I. on the alleged complaint of Baidyanath Prasad and on the alleged verification report. 42. The depositions of the alleged public witnesses are not trustworthy, and they are the pocket witnesses of C. B. I. There is no reliable evidence to establish the demand and acceptance of the alleged bribe. 42. The depositions of the alleged public witnesses are not trustworthy, and they are the pocket witnesses of C. B. I. There is no reliable evidence to establish the demand and acceptance of the alleged bribe. The recovery part too seems doubtful as the post-trap memorandum appears to have been prepared in the office of C. B. I. In that situation the arrested officials (these accused appellants) were made to sign the alleged post-trap memorandum in the night on the office of the C. B. I. officials. In this background no adverse inference can be drawn against these accused-appellants because their signatures are found on the post-trap memorandum. 43. The initiation of the complaint by Baidyanath Prasad in itself is doubtful. Sri Baidyanath met the excise officials including Sri Shaw at 6 P. M. in the evening for the first time. His alleged complaint and alleged verification report do not bear any note and signature of S. P. , C. B. I. The so-called independent public witnesses are the pocket witnesses of c. B. I. Accordingly there is no satisfactory evidence to establish the charge of accepting the bribe against h. A. Shaw. All these four accused-appellants Janak Kishore Prasad sinha, H. A. Shaw, Shiv Nandan prasad Verma and Yashpal Ahuja were working on their seats on 21st march, 1986 where they were placed/posted in their respective ranges. They assembled and went to the house of Baidyanath Prasad on the directions of their superior officer carrying with them the search-warrant signed by the superior officer, Assistant Collector," Customs and Excise, sri T. A. Imtee. Sri Shaw and Yashpal ahuja went to contact their superior officer Sri Imtee on telephone as it was going to be 6 P. M. in the evening and this act was performed by them in the normal course to know further instructions in the matter from their superior officer Sri Imtee. The accused-appellants S. N. P. Verma gave the report in performance of his duty on the directions of his superior officer Sri T. A. Imtee. Sri h. A. Shaw, Legal Superintendent was called by Sri T. A. Imtee and in discussions he gave his little suggestions to Sri T. A. Imtee in course of his official duties. The accused-appellants S. N. P. Verma gave the report in performance of his duty on the directions of his superior officer Sri T. A. Imtee. Sri h. A. Shaw, Legal Superintendent was called by Sri T. A. Imtee and in discussions he gave his little suggestions to Sri T. A. Imtee in course of his official duties. Further the fact that some of the accused appellants were putting their official dress of excise department because they happened to come from other Range to join the party on the direction of Sri imtee are not any relevant circumstance for consideration to hold that these accused-appellants conspired to take bribe from Baidyanath. 44. None of the charges are proved against any of these four accused-appellants. 45. These four appeals being criminal Appeal No.91 of 1993, criminal Appeal No.97 of 1993, criminal Appeal No.101 of 1993 and Criminal Appeal No.104 of 1993 are hereby allowed and the judgment and order of the Special judge, C. B. I. , South Bihar, Patna in special Case No.31 of 1986 stand set aside. Appeal Allowed.