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2006 DIGILAW 804 (PNJ)

Satinder Kumar v. State Of Punjab

2006-03-01

ASHUTOSH MOHUNTA

body2006
Judgment Ashutosh Mohunta, J. 1. In order to challenge his conviction and sentence under Sections 7 and 13(2) of the Prevention of Corruption Act, 1988 (for short `the Act) vide judgment and order dated 24.10.1994 passed by the Special Judge, Kapurthala, Satinder Kumar accused has filed the present appeal. 2. As per the prosecution version, Gurcharan Dass son of Mehar Chand resident of Kapurthala (hereinafter referred to as `the complainant) was depot holder of village Gopipur, who used to be supplied ration every month for distribution amongst the ration card holders of the village. Satinder Kumar Sharma, who was posted as Inspector in the Food & Supplies Department at Kapurthala (hereinafter referred to as `the accused), demanded Rs. 700/- on 1.2.1993 when the complainant approached him for supply of the ration for the month of February, 1993 for distribution amongst the ration card holders. According to the prosecution the deal was settled at Rs. 500/-. Thereafter the complainant along with his friend Tarjan Kumar PW approached Mr. Amrik Singh, DSP (Vigilance), who recorded his statement (Ex. PQ). The complainant handed over 5 currency notes of the denomination of Rs. 100/- each to the DSP. Phenolphthalein powder was applied to the currency notes and the same were returned to the complainant. The DSP noted down the numbers of the currency notes with him. Raid was arranged and Mohinder Singh, Panchayat Secretary, was summoned and joined in the raiding party. The complainant was instructed to handover the currency notes to the accused and Tarjan Kumar was instructed to act as a shadow witness and was asked to give a signal to the raiding party when the money was passed on by the complainant to the accused. The complainant and Tarjan Kumar went to the office of the accused. The complainant requested the accused to do his work. The accused demanded from him Rs. 500/- as per commitment already made. On demand having been made, the complainant handed over the tainted currency notes to the accused. Immediately, thereafter on the signal given by the shadow witness, the DSP along with other members of the raiding party rushed to the place where the accused was sitting and introduced himself to the accused. Solution of water and sodium carbonate was prepared in a glass into which the accused was made to dip his fingers. The colour of the solution turned light pink. Solution of water and sodium carbonate was prepared in a glass into which the accused was made to dip his fingers. The colour of the solution turned light pink. The solution was transferred into a nip (Ex. P-6), which was sealed by the DSP with seal M.S. and was seized vide Memo. Ex. PL. Search of the accused was conducted by the DSP and all the tainted currency notes (Ex. P-1 to Ex. P-5) were recovered from the inner pocket of the coat and the same were taken into possession vide Memo. Ex. PN. The coat of the accused was got removed. Again solution of water and sodium carbonate was prepared wherein pocket portion of the coat was dipped. The colour of the solution again turned light pink. The solution was collected in another nip (Ex. P11) which too was sealed with the same seal `M.S. Recovery memo. Ex. PM was repapred. Two indents Ex. PR and Ex. PS, which were lying on the table of the accused, were also taken into possession as per Memo. Ex. PO. Rough site plan of the place (Ex. PD) with its marginal notes was prepared by the DSP. Statements of the witnesses were recorded. Attendance register (Ex. P-9) showing the presence of the accused in the office was also seized vide Memo. Ex. PU. necessary sanction (Ex. PG) for the prosecution of the accused was obtained. Challan was presented in the court and the accused was charge-sheeted under Section 7 read with Section 13(2) of the Act. The accused pleaded not guilty. 3. In order to bring home the charge against the accused, the prosecution examined O.P. Ohri, Accounts Officer (PW-1); Hari Pal Clerk (PW-2); Chanan Singh, Assistant Food and Supplies Officer (PW-3); K.L. Dua, Inspector (PW-4); O.P. Bajaj, Senior Assistant (P.W. 5); Tarjan Kumar (PW-6); Gurcharan Das complainant (PW-7), Mohinder Singh, Panchayat Secretary (PW-8); and Amrik Singh DSP (PW-9). It also tendered into evidence, report of the Director, Forensic Science Laboratory (PV), and the affidavits, Exhibits PW and PX of MHC Sukhdev Singh and Constable Malkiat Singh, respectively. 4. When examined under Section 313, Cr.P.C., the accused denied the prosecution allegations and pleaded not guilty. He further stated that the depot of the complainant did not fall within his jurisdiction as Pritam Singh Inspector was concerned with that. 4. When examined under Section 313, Cr.P.C., the accused denied the prosecution allegations and pleaded not guilty. He further stated that the depot of the complainant did not fall within his jurisdiction as Pritam Singh Inspector was concerned with that. He also stated that in February, 1993 there was no indent system to release the quota of sugar and kerosene oil as the same had been abolished in 1986. The complainant had not contacted him on 1.2.1993 or prior to that. He did not demand any illegal gratification from the complainant and there was no question of his accepting the bribe money. The accused further stated that the complainant had transferred his depot to his son and complaints were received with regard to that and on these allegations his depot was likely to be cancelled. With this background, the complainant had come to his office and tried to forcibly put some money in his pocket and when he was resisting, the police came there and involved him in this false case. In his defence, the accused relied upon the statement of Mohinder Pal Singh Clerk of his office. According to Mohinder Pal Singh, ration to the depot holder was not supplied on the basis of the indent because the same was provided as per quota of the ration cards. The Assistant Food and Supplies Officer (for short `AFSO) issued slip indicating the quota of the ration every month. The indent system was discontinued in the year 1986 as per letter dated 7.11.1986, copy of which is at Ex. DA. 5. After hearing the counsel for the parties and on examining the evidence adduced on record, the Special Judge, Kapurthala, vide judgment and order dated 24.10.1994 convicted and sentenced the accused under Sections 7 and 13(2) of the Act. Under Section 7 he was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 500/-. In default of payment of fine, the accused was ordered to undergo further rigorous imprisonment for one month. Under Section 13(2) he was sentenced to undergo rigorous imprisonment for a period of 1-1/2 years and to pay a fine of Rs. 500/- and in default of payment of fine, he was to undergo further rigorous imprisonment for a period of one month. Both the sentences were ordered to run concurrently. 6. Under Section 13(2) he was sentenced to undergo rigorous imprisonment for a period of 1-1/2 years and to pay a fine of Rs. 500/- and in default of payment of fine, he was to undergo further rigorous imprisonment for a period of one month. Both the sentences were ordered to run concurrently. 6. Four-folds contentions have been raised by the learned counsel for the accused-appellant : (i) The indent system was discontinued vide letter dated 7.11.1986 (Ex. DA). Thus, there was no occasion for the complainant to submit the indents for getting monthly supply of the ration for distribution amongst the ration card holders of the village; (ii) The accused was neither Halqa Inspector of the complainant, nor he was concerned with the supply of ration to him; (iii) The shadow witness has not supported the prosecution version with regard to the passing of the illegal gratification to the accused; (iv) The DSP nowhere stated that he had offered himself for search by the accused before conducting search of his (accused) person. Thus, the search of the accused conducted by the DSP was illegal. 7. The contentions raised by the learned counsel for the appellant, have vehemently been controverted by Mr. N.S. Gill, learned Assistant Advocate General, Punjab. 8. After hearing the counsel for the parties and on examining the evidence adduced on record, I find force in the contentions raised by the learned counsel for the appellant. 9. There is no dispute to the fact that the indent/permit system was done away with vide letter No. 1(1)-86/1 KH V-2/42649-50 dated 7.11.1986 (Ex. DA). Even it has been admitted by PW-4 K.L. Dua, Inspector, in his cross- examination that there was no indent system prevalent at the relevant time. The relevant portion of the cross-examination of PW-4 K.L. Dua is reproduced hereunder :- "I have no knowledge before 1986, the Depot Holders used to submit indents of their requirements of Sugar and Kerosene oil. These days there is no indent system. The relevant portion of the cross-examination of PW-4 K.L. Dua is reproduced hereunder :- "I have no knowledge before 1986, the Depot Holders used to submit indents of their requirements of Sugar and Kerosene oil. These days there is no indent system. Since February 1992 there is no such like system and the same was the position in February 1993...." Thus, if the indent system had been abolished as back as in November 1986 and the same was also not in existence in February 1993 when the raid was conducted, then there was no occasion for the complainant to submit the indents to the accused for release of the monthly ration of sugar and kerosene oil. 10. Moreover, the theory of demand of bribe by the accused, as propounded by the prosecution, has not been supported by the shadow witness Tarjan Kumar (PW-6). The relevant portion of the statement Tarjan Kumar is reproduced hereunder :- "...... Gurcharan Dass (complainant) enquired from the accused as to if he had done his work. Gurcharan Dass told him that again said the accused told him that his work has been done. Gurcharan Dass (complainant) handed over currency notes of Rs. 500/- to the accused saying that that was his fees. The accused refused to accept the payment of that money. I came out of the office, raised my hands on my beard as per instructions of the Inspector. Soon after the Inspector and other came there. Then we were sent back in that very office and the Inspector completed the proceedings. The accused had not demanded the bribe money in my presence......." The afore-quoted statement of the shadow witness Tarjan Kumar (PW-6) lifts the veil from the face of the prosecution story and supports the version of the accused to the effect that the tainted currency notes were forcibly planted on him. At the time when the complainant in the company of the shadow witness reached the office of the accused, his work had already been done by him, i.e., the accused. There was no demand for bribe from the side of the accused. In case the complainant forcibly put the tainted currency notes in the pocket of the accused, then the accused cannot be held guilty for the offence under the Prevention of Corruption Act. There was no demand for bribe from the side of the accused. In case the complainant forcibly put the tainted currency notes in the pocket of the accused, then the accused cannot be held guilty for the offence under the Prevention of Corruption Act. In the case reported as Satbir Singh v. State of Haryana, 2000(1) Recent Criminal Reports 487, this Court had acquitted the accused therein on the ground that as per the evidence of the shadow witness no money was demanded in his presence. 11 Still further, a perusal of the statement of DSP Amrik Singh (PW-9) reveals that he nowhere states before the Court that he had offered himself to the accused for his personal search before conducting the search of accused. This lapse on the part of the Police Officer is fatal to the prosecution case. In State of Punjab v. Kaushal Singh Pathania, 2004(4) Recent Criminal Reports 498, it has been held by this Court that if a Police Officer failed to offer himself for search by the accused, then search conducted on the accused is absolutely illegal. 12. Moreover, the assertion of the accused that he was not the area Inspector at the relevant time remains uncontroverted from the side of the prosecution. Rather the case of the accused in this regard finds support from the statement of Mohinder Pal Singh, Clerk in the office of the District Food and Supply Controller, Kapurthala (DW-1), who stated that the area to which the complainant belonged was under the jurisdiction of Inspector Pritam Singh at the relevant time. In case the accused was not dealing with the depot holders of the area to which the complainant belonged, there was no occasion for him (the accused) to make any demand of bribe from the complainant. 13. Lastly, the prosecution case is not supported by any independent witness. PW-8 Mohinder Singh, who was joined in the raiding party, is a Panchayat Secretary in the office of the Block Development & Panchayat Officer, Kapurthala, who could easily be forced to toe to the line of prosecution. The only independent witness Tarjan Kumar (PW-6), who was deployed to act as a shadow witness, did not support the prosecution case. 14. In the light of the above discussion, I allow the appeal and acquit the appellant of the charge framed against him. His conviction and sentence is set aside. The only independent witness Tarjan Kumar (PW-6), who was deployed to act as a shadow witness, did not support the prosecution case. 14. In the light of the above discussion, I allow the appeal and acquit the appellant of the charge framed against him. His conviction and sentence is set aside. The appellant is on bail. His bail bonds shall stand discharged forthwith.