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2005 DIGILAW 858 (AP)

Shaik Abdul Salam v. State Of A. P.

2005-09-12

ELIPE DHARMA RAO

body2005
( 1 ) ASSAILING the judgment dated 31-1-2000 passed in CC No. 12 of 1996 by the learned Special Judge for SPE and acb Cases, City Civil Court, Hyderabad, convicting the appellant herein for the offence under Sections 7 and 13 (1) (d) read with Section 13 (2) of the Prevention of corruption Act, 1988 and sentencing the appellant to undergo rigorous imprisonment for one year each for the offence under section 7 and Section 13 (1) (d) read with section 13 (2) of the Act and to pay a fine of Rs. 1,000/- under each count, the sole accused preferred this criminal appeal. ( 2 ) THE case of the prosecution in nutshell is that the appellant, who worked as sub-Inspector of Police, Krishnagiri Police station, Kurnool District (hereinafter referred as the Accused Officer) on 17-9-1995 along with his staff surprised the house of pw-1 at Amakathadu Village and banned his son Pedda Shall Saheb, on the pretext that he has been selling jaggery to the persons manufacturing illicit distillers, took him to Police Station in a tractor and confined him in the Police Station, without registering any crime. On the next day, pw-1 met the Accused Officer at the Police station and requested to release his innocent son, on which the accused officer is said to have demanded Rs. 2,000/- as illegal gratification for the release. The pw-1 was reluctant to pay the bribe and as such on the same day approached the dsp/acb and lodged complaint and a case in Cr. No. 5/acb-KUR/95 came to be registered for the offence under Sections 7 and 11 of the Prevention of Corruption act, 1988 (for brevity the Act) and a trap was organized and PW-3 Dr. P. V. Ramana murthy and another acted as mediators. As planned, on 19-9-1995 at about 4. 35 p. m. PW-1 approached the accused officer at his residence in Reddyveddi of Veldurthy town, Kurnool. The accused Officer in pursuance of his earlier demand, accepted illegal gratification of Rs. 2,000/- from PW-1, which were tainted currency notes and kept in his right side uniform shirt pocket, which was recovered at his instance from the shirt pocket of his son. The test for the presence of phenolphthalein particles on the both the hands of the accused officers proved positives. The tainted amount of rs. 2,000/- from PW-1, which were tainted currency notes and kept in his right side uniform shirt pocket, which was recovered at his instance from the shirt pocket of his son. The test for the presence of phenolphthalein particles on the both the hands of the accused officers proved positives. The tainted amount of rs. 2,000/- was seized by the DSP and pw-2 was found detained illegally in krishnagiri P. S. on 19-9-1995 at 8. 45 p. m. After obtaining sanction from the Government vide G. O. Ms. No. 251 Home (SC. A) department dated 24-6-1996 to prosecute the Accused Officer, the appellant herein was charge-sheeted. ( 3 ) THE appellant was charged for the offence under Sections 7 and 13 (l) (d) read with Section 13 (2) of the Acts, to which he pleaded not guilty and claimed to tried. ( 4 ) TO bring home guilt of the accused, the prosecution examined in all seven witnesses and exhibited ten documents. The accused Officer, when examined under section 313 Cr. P. C. with regard to the incriminating material found against him, he denied the same. The case put forth by him in defence is that on 1-9-1995 at 5. 00 p. m. , one K. Ramanjaneyulu and K. Battu venkat Naidu jointly lodge complaint with him against PW-1 alleging that they transported the groundnuts in the tractor and for the same, PW-1 has to pay Rs. 2,000/ - as hire charges and when demanded PW- 1, he quarreled with them and as such they gave report to him, as such the accused officer called those two persons on the next day for enquiry. On 2-9-1995 PW-1 and those persons went to the PS, where PW-1 is said to have admitted that he is due rs. 2,000/- and he would pay the same on 19-9-1995 in his presence and an agreement was written. On 19-9-1995 the accused officer went to Kurnool Sessions Court and at 3. 45 p. m. , when he was in his house, pw-1 went and told that those two persons have not come and asked the accused officer to handover the said amount to those two persons and saying so, forcibly kept the amount in his hands and left the house and thereafter, the ACB officials went to his house. 45 p. m. , when he was in his house, pw-1 went and told that those two persons have not come and asked the accused officer to handover the said amount to those two persons and saying so, forcibly kept the amount in his hands and left the house and thereafter, the ACB officials went to his house. His further case is that one sunkanna, Head Constable and himself together worked at various places and since the said Head Constable did not get promotion and on one occasion, he shouted at him for not attending duties without applying leave, he, hand in glove with PW-1, have foisted this case against him. To substantiate the case of defence, the accused officer examined DWs. 1 to 6 and exhibited 15 documents. ( 5 ) THE trial Judge, on appreciation of the entire oral and documentary evidence, found the appellant guilty of the offences, convicted and sentenced as stated supra. ( 6 ) AGGRIEVED of the same, the present criminal appeal is preferred. The contentions of the learned Counsel for the appellants - accused Officer is threefold. He firstly contends that the sanction order, ex. P9, permitting the accused officer to be prosecuted for the alleged offences, is the result of non-application of mind to the facts and circumstances of the case and, therefore, the entire case is vitiated. He secondly contends that there is nothing on record which suggests that PW-2 was arrested or detained in the Police Station illegally by the accused officer and, therefore, the defence theory is more trustworthy and plausible than the evidence of prosecution witnesses. He lastly contends that the evidence of prosecution witnesses is inconsistent, shaky and does not inspire confidence afflicted with improbabilities and, therefore, the Court below has erred in placing reliance on such evidence and erroneously recorded conviction against the appellant. ( 7 ) ON the other hand, the learned standing Counsel for the ACB vehemently tried to support the findings arrived at by the Court below. ( 8 ) AT the outset, the learned Counsel for the appellant attacked the validity of the sanction order, Ex. P-9. Be it noted that the issue of validity of Ex. P9 was not raised before the trial Court, though trivial information was elicited in the cross- examination of PW-5, Section Officer, Home department, Secretariat. ( 8 ) AT the outset, the learned Counsel for the appellant attacked the validity of the sanction order, Ex. P-9. Be it noted that the issue of validity of Ex. P9 was not raised before the trial Court, though trivial information was elicited in the cross- examination of PW-5, Section Officer, Home department, Secretariat. It is for the first time in this appeal by filing Crl. M. P. No. 1446 of 2005, this issue was raised by the learned Counsel for the appellant. Therefore, when such issue was not raised before the trial Court, it goes without saying that the learned Public Prosecutor had no opportunity to lead evidence on this score. Therefore, on this ground alone, this issue can be rejected. But, however, this being a legal ground, I thought it appropriate to consider the same in this appeal. ( 9 ) I shall first proceed to examine whether the sanction order Ex. P-9 is issued in accordance with law. The learned Counsel for the appellant submits that as per the evidence of PW-5 there are interpolations written in different ink and in the office copy of the sanction order, under the abstract, it is written as Shaik Abdul Salam and the interpolations are not initialed by the sanctioning authority. He further contends that the ACB people sends draft specimen sanction order and since the contents of Ex. P-9 and the draft sanction order are same, it must be presumed that without application of mind to the facts and circumstances of the case, Ex. P-9 was issued permitting prosecution of the accused officer and, therefore, it is vitiated. Contending so, the learned Counsel for the appellant has relied on a judgment of this court in Criminal Appeal Nos. 1899 and 1951 of 1999. He further contends that the government while according sanction has not applied its mind to the entire records and, therefore, the sanction is not valid. He further contends that the grant of sanction is not an idle formality but a solemn and sacrosanct act which affords protection to government Servants against frivolous prosecution and must, therefore, be strictly complied with before any prosecution could be launched against public servant. Contending so, reliance is sought to be placed on a decision of the apex Court in Balaram swain v. State of Orissa, AIR 1991 SC 279 . Contending so, reliance is sought to be placed on a decision of the apex Court in Balaram swain v. State of Orissa, AIR 1991 SC 279 . In the above criminal appeals, PW-6 therein has admitted that for obtaining the sanction order, he did not send the file to the Secretariat for issuing the sanction orders, but he prepared draft of sanction order and it was sent to their Head Officer for sending the same to the Sanctioning authority for issuing sanction order. He further admitted that the sanction order and the draft order tally with each other and, therefore, it implies that the sanctioning authority did not apply his mind while giving sanctioning order. A learned Single judge of this Court, in view of the above facts and applying the ratio laid down by the Apex Court in Mohd Iqbal Ahmed v. State of A. P. , AIR 1979 SC 677 , held that the entire trap was vitiated and, therefore, the accused-appellant herein was entitled to acquittal. ( 10 ) THE ratio laid down in the above case can hardly be applied to the facts and circumstances of the case. In the instant case, it is nobody s case that the specimen sanction order which was forwarded by the DG, ACB, was issued verbatim. A plain reading of Ex. P-9 makes it abundantly clear that the entire history of the crime was adverted to by the sanctioning authority and on exhaustive consideration of the facts and circumstances of the case, accorded sanction to prosecute the accused Officer. The contention of the learned Counsel for the appellant that the name of the accused officer is written in different ink and the word Salam is interpolated, and therefore, the sanction order is vitiated, cannot be countenanced inasmuch as Ex. P-9 has emerged after due considerations and deliberations. Ex. P-9 shows that before according sanction to prosecute the accused officer, the entire matter was perused and after fully applying the mind, sanction was accorded. Same is the analogy in respect of the decision Prithi Pal Singh v. State of punjab, 1991 Crl. LJ 2541, relied on by the learned Counsel for the appellant. Ex. P-9 shows that before according sanction to prosecute the accused officer, the entire matter was perused and after fully applying the mind, sanction was accorded. Same is the analogy in respect of the decision Prithi Pal Singh v. State of punjab, 1991 Crl. LJ 2541, relied on by the learned Counsel for the appellant. ( 11 ) THE decision relied on by the learned Counsel for the appellant in mansukhlal Vithaldas Chauhan v. State of Gujarat, 1997 (2) ALD (Crl.) 753 (SC) = AIR 1997 SC 3400 , is of no avail to the appellant inasmuch as it says that sanction for prosecution of the accused officer accorded by the sanctioning authority mechanically, without adverting to facts and circumstances of the case, in obedience of mandamus issued by the High court, is not valid. It is nobody s case that the mind of the sanctioning authority was under pressure from any quarter nor the discretion of the sanctioning authority was curtailed by an external force. Therefore, it (cannot be said that the sanctioning authority was unable to apply its independent mind for any reason and was under an obligation or compulsion or constraint to grant the sanction. ( 12 ) RELYING on these decision, the learned Counsel for the appellants contends that the requirement as to the existence of sanction cannot be given a narrow interpretation namely that once cognizance of an offence is taken, the sanction or its absence becomes irrelevant. If cognizance itself cannot be taken in the absence of sanction, taking cognizance of an offence by whatever means, cannot justify the existence or absence of sanction. Therefore, since the sanction was not validly issued applying the mind, taking cognizance of the offence against the appellant is bad. In support of his contention reliance is sought to be placed on a decision of this court in K. Narasimhachary v. State inspector of Police, Anti Corruption bureau, Cuddapah District, 2003 (1) ALD (Crl.) 730 (AP ). A learned Single Judge of this Court while dealing with Section 47 of the Evidence Act and sanction for prosecution, held that order can be proved by any person who is well acquainted with the signature of the author of the sanction order. There is no such contingency that arose in this case. A learned Single Judge of this Court while dealing with Section 47 of the Evidence Act and sanction for prosecution, held that order can be proved by any person who is well acquainted with the signature of the author of the sanction order. There is no such contingency that arose in this case. However, as stated above the sanctioning authority, on considering the facts and circumstances of the case and adverting to the material sent along with the specimen sanction order by the D. G, ACB, has issued Ex. P-9. Therefore, in such circumstances, the decisions of the Apex court in State of Orissa v. Mrutunjaya panda, 1998 (1) ALD (Crl.) 360 (SC) = air 1998 SC 715 and State by Police inspector v. T. Venkatesh Murthy, AIR 2004 SC 5117, squarely apply to the instant case. The sum and substance of these decisions is that discharge or acquittal of the accused in a bribe case is permissible only if that has occasioned in failure of justice and discharge or acquittal only on the ground that sanction was not given by appropriate authority and that the defect in sanction was raised at a belated stage, cannot be considered. It is further held that when there is no material showing that failure of justice occasioned due to error or irregularity in sanction, the conviction recorded by the Court below cannot be set aside. For the foregoing discussion, I am of the considered view that Ex. P-9 was rightly issued against the accused officer and there no material showing the failure of justice occasioned due to error or irregularity in sanction. That apart, as observed by the Apex Court in Venkatesh Murthy s case, the said plea about any defect in the sanction was not raised at the initial stage, so as to afford an opportunity to the prosecution to meet it invite a finding by the trial Court. ( 13 ) LEARNED Counsel for the appellant further contends that when the appellant has proved that the amount of Rs. ( 13 ) LEARNED Counsel for the appellant further contends that when the appellant has proved that the amount of Rs. 2,000/- which is tainted currency, was handed over by PW-1 to be in turn returned to K. Ramanjaneyulu and K. Battu Venkat naidu, as transport charges for transporting groundnuts, the appellant has discharged the burden and negated the presumption that the amount was a bribe amount and, therefore, the theory of bribe given by pw-1 set up by the prosecution has to be presumed improbable. In other words, what the learned Counsel for the appellant intends to submit is that the accused has rebutted the presumption by showing a mere preponderance of probability in his favour and it is not necessary for the appellant to establish his case beyond reasonable doubt. In support of this proposition of law, reliance is placed on a decision of the Apex Court in Trilok Chand jain v. State of Delhi, AIR 1977 SC 666 , and this Court in Dr. A. Y. Prasad v. State, 2002 (2) ALD (Crl.) 241 (AP ). ( 14 ) THERE is no doubt about this proposition of law. But what has to be seen in this case is that the said K. Ramanjaneyulu and K. Battu Venkat naidu, though examined as DWs. 1 and 2, did not satisfactorily explain as to why they did not accompany PW-1 to the house of the Accused Officer, having accepted to receive the amount on 19-9-1995. No satisfactory explanation is forthcoming either from the accused officer or from dws. 1 and 2, on this aspect. The plea of dw-1 that he could not go to the Accused officers as he had work on that day and dw-2 also could not go to the accused officers, as he was not doing well, appears to be shabby and this contingency cannot be treated as coincidence in favour of the appellant, more particularly when DW-1 admitted that they did not inform to PW-1 that they are unable to come over to the police Station to meet the Accused Officer. Therefore, the positive evidence of prosecution witnesses cannot be brushed aside having regard to this shabby and unclinching evidence. ( 15 ) THEREFORE, I shall now proceed to scrutinize the evidence available on record. Therefore, the positive evidence of prosecution witnesses cannot be brushed aside having regard to this shabby and unclinching evidence. ( 15 ) THEREFORE, I shall now proceed to scrutinize the evidence available on record. ( 16 ) THE learned Counsel for the appellant submits that there is nothing on record which suggests that PW-2 was arrested by the accused officer and confined him, on the allegation that he was supplying jaggery to persons manufacturing illicit liquor. The evidence of PWs. 1, 3 and 4 besides the contents of Ex. P-1 abundantly makes it clear that the accused Officer along with his staff on 17-9-1995, went to the house of PW-1 and arrested PW-2 and took him to Krishnagiri P. S. The evidence of PW-2, confine, goes to show that he was kept in the Police Station without there being any entry in the records. The evidence of Investigating Officer, who also successfully laid the trap, goes to show that the General Dairy Ex. P-12, Ex. P-13 relief book, Ex. P-14 FIR and Ex. P-15 Petty case register, the accused officer arrested PW-2 on 17-9-1995 without registering a crime. The evidence of PW-1 and Ex. P-1 report, further go to show that on 18-9-1995 when pw-1 went to the Police Station and requested the Accused Officer to release his son, PW-2 as he did not commit any offence, the accused officer demanded a bribe of Rs. 2,000/ -. The accused officer further made it clear that only on payment of Rs. 2,000/-, he would release PW-2, otherwise, he would book a case against him. The evidence of PW-2 is corroborating the evidence of PW-1 in all material particulars. ( 17 ) THE evidence of PW-3, who was deputed on the instructions of Joint director, Animal Husbandry, shows that he reported PW-6. The evidence of PW-3 makes it abundantly clear that PW-1 produced the amount of Rs. 2,000/- before him and the currency note numbers were also noted, which is same as that of MO-1 and the said amount was applied with phenolphthalein powder. It is further ensured that PW-1 does not contain any other currency notes or papers, handed over the tainted amount of Rs. 2,000/ -. After the panchanama was drafted, it was attested by pw-3. Thereafter, PW-1 entered the house of Accused Officer and on demanded by him, PW-1 paid the demanded amount of rs. 2,000/-, which was tainted. It is further ensured that PW-1 does not contain any other currency notes or papers, handed over the tainted amount of Rs. 2,000/ -. After the panchanama was drafted, it was attested by pw-3. Thereafter, PW-1 entered the house of Accused Officer and on demanded by him, PW-1 paid the demanded amount of rs. 2,000/-, which was tainted. After receiving the said sum, it is the evidence of pw-1, that the accused officer informed him that he would make a call to the police station to release PW-2. The accused officer, after receiving the tainted amount, kept it in the uniform shirt pocket. It is further the evidence of PW-1 after the accused officer received the bribed amount, he gave signal to PW-6, who along with other staff entered the house of accused officer and got prepared solution of sodium carbonate. When the accused officer was made to dip his fingers of both the hands, the solution turned into pink, which is a sign that the amount was tainted. On questioning, the accused officer, led PW-6 and others to a room where the tainted amount was recovered from the shirt pocket. The evidence of PW-3 further goes to show that the number of the currency notes tallied with that of the numbers mentioned in the panchanama. Thereafter, the shirt - MO-6 was also seized which belongs to the son of PW-1 and, on test, the solution also turned pink. ( 18 ) THE evidence of PWs-1, 3 and 6 shows that after completing the formalities of trapping the accused officer, they proceeded to Krishnagiri Police Station along with the accused officer, where they found pw-2 in the police station. PW-6 after seizing Exs. 11 to 15, got released PW-2. This proceeding is reduced into writing under ex. P-7. In view of this positive evidence of the prosecution, the rebuttal evidence of dws. 1 to 6, as discussed in the foregoing paragraphs, does not stand to judicial scrutiny. DWs. 1 to 6 have stated with regard to exs. P-11 to P-15 and the theory set up in defence by the accused, that the amount of rs. 2,000/- was given to him by PW-1 towards the hire charges to be handed over to K. Ramanjaneyulu and K. Battu Venkat naidu, for transporting their groundnuts. There are several lacunae in this theory, as pointed in the foregoing paragraphs. P-11 to P-15 and the theory set up in defence by the accused, that the amount of rs. 2,000/- was given to him by PW-1 towards the hire charges to be handed over to K. Ramanjaneyulu and K. Battu Venkat naidu, for transporting their groundnuts. There are several lacunae in this theory, as pointed in the foregoing paragraphs. When a rebuttal evidence is being let in, the accused officer is required to prove it by cogent evidence. It is the evidence of dw-1 that he could not go to the accused officer, as he had work on 19-9-1995 and dw-2 also could not go to the accused officer, as he was not well. This piece of evidence is not supported by any evidence. Therefore, the degree of proof which is required to prove the rebuttal evidence is absent. Therefore, I have no hesitation in holding that the amount of Rs. 2,000/- recovered from the possession of PW-1 is the tainted amount, but not otherwise. ( 19 ) THE contention of the learned counsel for the appellant that the evidence of PWs. 1, 3 and 6 are inconsistent with each other and, therefore, the trial Court ought not to have acted on their evidence and convicted the appellant. No doubt, there are certain trivial inconsistencies in the evidence of PWs. 1, 3 and 6, but the test to be applied is to see whether such minor contradictions and trivial inconsistencies vitiate the entire trap. The apex Courts is a decision state of Maharashtra v. Narsingrao gangaram Pimple, AIR 1984 SC 63 , has held that where in a trap case, the Judge magnified every minor detail or omission to falsify or throw even a shadow of doubt on the prosecution evidence, then it would be the very antithesis of a correct judicial approach to the evidence of witnesses in a trap case. It is also held that if such a harsh touchstone is prescribed to prove such a case, it will be difficult for the prosecution to establish any case at all. Therefore, such minor contradictions and inconsistencies in the evidence of the prosecution witnesses, when they do not effect the substratum of the case, cannot be given much weight, so as to throw away the entire prosecution case. 320. Therefore, such minor contradictions and inconsistencies in the evidence of the prosecution witnesses, when they do not effect the substratum of the case, cannot be given much weight, so as to throw away the entire prosecution case. 320. Further the contention of the learned Counsel for the appellant that when pw-1 admitted that he did not meet the accused officer on 18-9-1995, the question of he requesting the accused officer to release PW-2, does not arise. It is the corroborated evidence of PWs. 1, 3 and 6 that PW-1 went to the police station on 18-9-1995 and requested the accused officer to release his son, PW-2. There is nothing attributed to the prosecution witnesses to depose falsely against the accused officer. 21. The cumulative effect of the evidence adduced on behalf of the prosecution is that the accused officer has illegally detained PW-2 and when PW-1 requested him to release, the accused officer demanded and accepted a bribe of Rs. 2,000/- which was tainted amount, which was seized from his house by PW-6 in the presence of PW-3 and the test conducted on the fingers and clothes of the accused office proved positive and the solution turned pink. The number of the currency notes which were mentioned in the pre-trap proceedings are the same as that of MO-1, tainted amount. The corroborated and clinching evidence adduced on behalf of the prosecution is more probable than the defence theory set up by the accused officer, examining DWs. 1 to 6. Therefore, I am of the considered view that the trial Court did not err in appreciating the evidence and arrived at a just conclusion. Consequently, the criminal appeal fails and is accordingly dismissed, confirming the conviction and sentence awarded by the court below.