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Punjab High Court · body

2007 DIGILAW 784 (PNJ)

S. H. Kazmi v. State Of Haryana

2007-04-02

H.S.BHALLA

body2007
Judgment H.S.Bhalla, J. 1. This appeal is directed against the judgment dated 15.12.1992 and order dated 23.12.1992 passed by Special Judge, Ambala Cantt., vide which he convicted the appellant under Section 161 of the Indian Penal Code and Section 5(2) of the Prevention of Corruption Act, 1988 (sic 1947). The appellant was sentenced to undergo rigorous imprisonment for a period of two years under Section 161 of the Indian Penal Code. The appellant was further sentenced undergo rigorous imprisonment for a period of five years under Section 5(2) of the Prevention of Corruption Act and he was ordered to pay a fine of Rs. 10,000/-; in default thereof, he was further directed to undergo rigorous imprisonment for a period of two months. All the sentences were ordered to run concurrently. 2. A synoptical resume of the prosecution case is as under :- 3. Original allottee, Talia Ram had taken the wakf property on a monthly lease of Rs. 8/-. After some time, he had left the said wakf property. The arrears due towards Talia Ram was Rs. 600/-. One Chander Bhan had entered into possession of the said wakf property with effect from 1.8.1984. The said Chander Bhan had also filed an application before the Auqaf Officer of the said Wakf Board for taking the said wakf property on a monthly lease of Rs. 30/-. He had also agreed to pay the arrears of lease pending towards Talia Ram. The said application was forwarded to the Secretary of the Punjab Wakf Board. He had also obtained the said application dasti with a view to secure allotment expeditiously and remained in touch with the appellant. The appellant told the complainant that this would be done if he made the payment of Rs. 1,000/-. Although the complainant was not interested in parting with the said amount, but still he had given the assurance that he would make the said payment. Thereafter, he contacted with Jasbir Singh, DSP, CBI and narrated the whole episode. 4. Thereafter, DSP Jasbir Singh deputed G.S. Sodhi, Inspector to bring an independent witness along with him. He accordingly, brought an independent witnesses, namely, Barkha Ram. Both the witnesses reached the office of the appellant. Deputy Superintendent of Police, Jasbir Singh directed both the said witnesses to approach the appellant. Accordingly, they approached the appellant. 4. Thereafter, DSP Jasbir Singh deputed G.S. Sodhi, Inspector to bring an independent witness along with him. He accordingly, brought an independent witnesses, namely, Barkha Ram. Both the witnesses reached the office of the appellant. Deputy Superintendent of Police, Jasbir Singh directed both the said witnesses to approach the appellant. Accordingly, they approached the appellant. The complainant Chander Bhan introduced Barkha Ram as his elder brother and pleaded his inability to make an arrangement for an amount of Rs. 1,000/- and made a request that the work be done for a consideration of Rs. 500/-, but the appellant did not agree. Later on, on the repeated requests of the complainant, the deal was settled for Rs. 800/-. The appellant asked the complainant Chander Bhan to meet him in the office at 12.30 p.m. on the next day. Thereafter, both the witnesses returned back and remained in touch with Deputy Superintendent of Police, Jasbir Singh who told both the witnesses to meet him at 10.00 a.m. on the next day. 5. On the fateful day i.e. 20.10.1984, DSP Jasbir Singh was present at the pointed place along with G.S. Sodhi, Gurcharan Singh, and Constable Siri Om. The complainant Chander Bhan met DSP. Thereupon, DSP Jasbir Singh, directed G.S. Sodhi to fetch Barkha Ram and also to bring another independent witness along with him. Accordingly, he brought B.C. Sharma, Inspector (Phones) at about 11.20 a.m., 11.30 a.m. and 11.45 a.m. The complainant was introduced and he was directed to narrate the facts to B.C. Sharma. Accordingly, he narrated the facts. At the instance of DSP, Chander Bhan produced the currency notes of Rs. 800/- Ex. P-4 to Ex. P-14. The currency notices consisted of five currency notes of Rs. 100/- denomination and six currency notes of Rs. 50/- denomination. DSP Jasbir Singh applied peholphthalein water to which he added sodium carbonate. Thereafter, he dipped his tips into water and its colour turned pink. He explained the witnesses that if a person touched the currency notes and would put his fingers into the sodium carbonate solution, the colour of the water would turn pinkish. After applying phenolphthalein powder again to the currency notes, the notes were put by DSP in the front side pocket of the shirt worn by the complainant. The complainant was directed neither to touch the currency notes nor to shake hands with the appellant. After applying phenolphthalein powder again to the currency notes, the notes were put by DSP in the front side pocket of the shirt worn by the complainant. The complainant was directed neither to touch the currency notes nor to shake hands with the appellant. All the members of the raiding party washed their hands with soap. Barkha Ram was assigned the role to act as a shadow witness and accompanied the complainant Chander Bhan (PW-7) to the office of the appellant. He was further directed to keep himself at such a distance from where he could watch the transaction regarding exchange of amount of illegal gratification. After the exchange of currency notes, he was required to give the agreed signal to the raiding party. Besides the aforesaid direction, the complainant Chander Bhan was directed to put a tape recorder into the bag carried by him. He was also directed to switch on the tape recorder as and when he entered the office of the appellant. The purpose of doing all is to record the conversation between the complainant Chander Bhan and the appellant. A personal search was carried out of all the members of the raiding party and it was found that none of the members of the raiding party was carried out any currency notes of denomination of Rs. 50/- or Rs. 100/- except the notes Exs. P-4 to P-14 which was required by the complainant Chander Bhan to hand over to the appellant as the amount of illegal gratification. All the aforesaid formalities, including preparation of handing over memo Ex. PJ, which was signed by all the witnesses of the raiding party were completed upto 1.30 p.m. 6. Thereafter, all the members of the raiding party proceeded in a jeep towards the office of Punjab Wakf Board. Jeep was parked in the vicinity of the office of the appellant. The complainant Chander Bhan was sent to the office of the appellant to find out the availability of the appellant. He reported that the appellant went for lunch and would return back by 2.30 p.m. In the meantime, the DSP surveyed the site. After some time, DSP directed the members of the raiding party to take their respective positions. Barkha Ram was also told the site from where he was required to give the agreed signal. He reported that the appellant went for lunch and would return back by 2.30 p.m. In the meantime, the DSP surveyed the site. After some time, DSP directed the members of the raiding party to take their respective positions. Barkha Ram was also told the site from where he was required to give the agreed signal. However, at about 2.30 p.m., the complainant Chander Bhan reported that the appellant had visited his office. Thereafter, the complainant proceeded to the office of the appellant and before entering into the office, he switched on the tape recorder. After entering into the office of the appellant, he wished him who reciprocated and invited the complainant Chander Bhan to his seat. At that point of time, two other employees of the office of the appellant were also sitting with him. However, the aforesaid two employees left their places after 4/5 minutes. Thereafter, Chander Bhan, complainant indicated to the appellant that he had brought the amount as demanded. He accordingly, passed on the amount to the appellant. Barkha Ram, shadow witness gave the agreed signal to the members of the raiding party, who immediately appeared on the scene. DSP disclosed his identity to the appellant and caught the latters hands. Constable Siri Om was deputed to call the senior officers of the Punjab Wakf Board. He brought along with him Shri K. Sheikh, Secretary and Shri S.S. Grewal, Accounts Officer to the office of the appellant. Thereafter DSP poured sodium carbonate into the glass and called upon the appellant to wash his hands. When the appellant put his right hand in the water, its colour turned pink. The aforesaid water was transferred into a bottle, which was later on sealed with seal GSS. However, when the appellant put his left hand into the freshly prepared sodium carbonate solution, the water did not turn pink. The aforesaid water was also transferred into a bottle and was sealed separately. Thereafter, the person of the appellant was searched and currency notes Exs. P-4 to P-14 were recovered from the pant which he was wearing. DSP Jasbir Singh, thereafter, tallied the number of currency notes with those recorded in the memo Ex. PJ and subsequently found that the aforesaid notes were tallied with each other. A purse carried by the appellant contained notes of Rs. 283/- and two bank deposit slips, Exs. P-21 and P-22. DSP Jasbir Singh, thereafter, tallied the number of currency notes with those recorded in the memo Ex. PJ and subsequently found that the aforesaid notes were tallied with each other. A purse carried by the appellant contained notes of Rs. 283/- and two bank deposit slips, Exs. P-21 and P-22. The inside of the right side pocket of the pant of the appellant was also dipped into a freshly prepared sodium carbonate solution. Resultantly, sodium carbonate solution turned pink. The aforesaid solution was transferred into a bottle and it was sealed. It was found that the cassette (Ex. P-16) did not work because Chander Bhan could not switch it on properly. 7. Prosecution in order to prove its case has examined Satish Kumar, Assistant Malkhana Incharge, CBI, Chandigarh (PW-1); Basudeo Sharma, UDC, CBHI (PW-2); Ajmat Khan (PW-3); O.P. Kataria (PW-4); Mohd. Israil (PW-5); L.R. Patel (PW- 6); Chander Bhan (PW-7); B.C. Sharma (PW-8); Barkha Ram (PW-9); Jasbir Singh DSP (PW-10); Gurcharan Singh (PW-11); G.S. Sodhi (PW-12); Sher Mohammad (PW- 13); Surjit Singh Grewal (PW-14); Hidayat Khan (PW-15) and Ranbir Singh, DSP (Retd.) (PW-16) and closed its evidence. 8. The appellant-accused in his statement recorded under Section 313 of the Code of Criminal Procedure stated that the false case was registered against him. He opted to lead evidence in defence. He examined in defence, Sahebullah Khan, Assistant in the Lease Section (DW-1), Sumer Khan, Rent Collector (DW- 2), Mohd. Israil, Accountant (DW-3) and Mohd. Ishaq, Rent Controller (DW-4). I have heard the learned counsel for the parties and have also gone through the record carefully. 9. It is crystal clear from the record that the entire case of the prosecution, through the mouth of the complainant, revolves around one dasti application pertaining to the lease allotment and the demand raised by the accused for illegal gratification. The complainant has deposed that though he was not inclined to pay the amount but he promised to the accused and thereafter got in touch with DSP Jasbir Singh. After satisfying about the correctness of the assertion made by PW-7, Chander Bhan. DSP Jasbir Singh asked him to contact him the following day and he also formed a raiding party and gave necessary instructions to the different members of the raiding party. After satisfying about the correctness of the assertion made by PW-7, Chander Bhan. DSP Jasbir Singh asked him to contact him the following day and he also formed a raiding party and gave necessary instructions to the different members of the raiding party. When Jasbir Singh, DSP stepped into the witness box, he also disclosed, having exhibited the way the sodium carbonate solution would work in case someone who had touched the currency notes were to dip his hand into it. DSP Jasbir Singh also disclosed, during the course of his statement, that after the person of the accused was secured by him, Inspector G.S. Sodhi and Constable Siri Om were deputed to summon senior officers of the Punjab Wakf Board. The then Secretary of the Punjab Wakf Board came there and all the prosecution witnesses have deposed in a similar fashion with regard to the fact that both the hands of the accused and inside of the relevant pocket of the trousers worn by the accused at the relevant time was dipped into the sodium carbonate solution. It is true that Chander Bhan and B.C. Sharma were declared hostile by the prosecution but it was with regard to certain points which do not shatter the case of the persecution in any manner. I find from the record that the accused has developed a defence that he has been falsely implicated at the instance of PW-15, Hidayat Khan against whom he had conducted an enquiry and on account of this Hidayat Khan nourished a grudge against him. But this defence is based on a sandy foundation which is bound to collapse. It is not the case of the accused that he had personally conducted any enquiry against Hidayat Khan but his plea is that he had accompanied the then Secretary to Sonepat to enquire into the allegations of corruption and irregularities committed by Hidayat Khan. There is nothing on file to indicate the inimical relations between the accused and Hidayat Khan and in fact as per the case of the accused he had only assisted the Secretary in that enquiry. The enquiry was conducted by the Financial Controller, S.S. Grewal and it was on the basis of that enquiry that Hidayat Khan was dismissed. Accused did not play any active role in the aforesaid enquiry. Therefore, the question of any grudge against the accused by Hidayat Khan does not arise. The enquiry was conducted by the Financial Controller, S.S. Grewal and it was on the basis of that enquiry that Hidayat Khan was dismissed. Accused did not play any active role in the aforesaid enquiry. Therefore, the question of any grudge against the accused by Hidayat Khan does not arise. 10. Faced with this situation, the learned defence counsel vehemently argued that the case of the prosecution is bound to fail, since Chander Bhan and B.C. Sharma have been declared as hostile witnesses and on account of this the case of the prosecution has become doubtful and the accused is entitled to acquittal. 11. I have considered this contention of the learned defence counsel which has been examined by me in the light of evidence available on record but the same is liable to be noticed for the sake or rejection. 12. It appears that these two witnesses at a latter stage tried to help the accused by asserting certain facts which could enable the accused to argue that a doubt had been cast upon the bona fides of the prosecution case. 13. The record of the case clearly shows that PW-7 Chander Bhan introduced new facts in his statement by stating that the currency notes had been provided to him by Hidayat Khan on 20th and that the aforesaid Hidayat Khan was also available at Ambala Cantt on 19th i.e. when Chander Bhan had got into touch with the accused for the first time. He also tried to ditch the prosecution by asserting that dipping proceedings etc. were not done in his presence as he left the office of the accused when DSP Jasbir Singh and Inspector G.S. Sodhi caught hold of the fore-arms of the accused. He has also stated that the working of the cassette was not checked in his presence and on account of all this, at the request of the learned Public Prosecutor, he was declared as hostile witness and was cross-examined by the Public Prosecutor and during the course of cross-examination he categorically admitted that he had not disclosed to police that Hidayat Khan had brought him at Ambala Cantt. on 19th and Hidayat Khan had provided the funds to him i.e. the amount which was to be passed on to the accused as illegal gratification. on 19th and Hidayat Khan had provided the funds to him i.e. the amount which was to be passed on to the accused as illegal gratification. He also admitted that he did not mention the presence of Hidayat Khan in the report made before the DSP, Jasbir Singh and also admitted that he was not under the pressure of Hidayat Khan or any other person. He has also disclosed that he told the police that the accused had demanded Rs. 800/- and he had further told him that he would not take any amount less than this amount. He also conceded having told the police that the members of the raiding party entered the office of the accused on receiving agreed signal from Barkha Ram and thereafter DSP Jasbir Singh and Inspector Sodhi caught hold of the left and right arms of the accused. All these facts duly admitted by the complainant Chander Bhan would not affect the case of the prosecution, even if he was declared as hostile witness. 14. Regarding PW-8 B.C. Sharma, I find that he conceded the role attributed to him in its entirety but again tried to help the accused by disclosing that DSP Jasbir Singh and Inspector G.S. Sodhi had already caught hold of the arms of the accused and recovered notes were lying on the table, by the time he reached the office of the accused but he had conceded that Sheikh Ahmed and S.S. Grewal were summoned to the spot and the right and left hands of the accused were dipped into the sodium carbonate solution and the colour of the water did not turn into pinkish when the left hand of the accused was dipped into water but the colour of the water turned into pinkish when the right hand of the accused was dipped into the water. He has categorically deposed that those washes were transferred into separate bottles and were sealed with the seal of GSS. He also admitted that DSP had tallied the number of currency notes with those recorded on the memo. He further deposed that a sum of Rs. 283/- and some bank receipts were recovered from the purse of the accused which was recovered from the rear side pocket of the pant. He also admitted that DSP had tallied the number of currency notes with those recorded on the memo. He further deposed that a sum of Rs. 283/- and some bank receipts were recovered from the purse of the accused which was recovered from the rear side pocket of the pant. He does not dispute that the inside of the right side pocket of the pant of the accused was dipped into sodium carbonate solution and the colour of the water turned into pinkish. He also admitted that on personal search, memo of DSP Jasbir Singh and Chander Bhan was prepared in his presence. The learned defence counsel further submitted that the presence of Hidayat Khan at Ambala Cantt. on 19th is borne out through Ex. DCC which is photocopy of the tour programme which was proved by DW-2 Sumer Khan, who had been posted with the accused as Rent Controller and who was familiar with the latters signatures. He further pointed out that DW-2 Sumer Khan had stated that Hidayat Khan had signed entry dated 19.10.1984 in his presence, but this contention of the learned counsel does not cut ice with me particularly when the record clearly spells out that the alleged signatures of Hidayat Khan were not put to him when he stepped into the witness box as PW-15. Hidayat Khan, during the course of cross- examination, categorically denied having visited Ambala on 19th and 20th of October, 1984 and he had also denied having supplied the tainted funds to the complainant for the purpose of raid. 15. The learned defence counsel further argued that the case of the prosecution is bound to collapse in view of the fact that 19.10.1984 was a Friday and as per instructions, working hours on Friday are from 8.00 to 1.00 p.m. and there was no occasion for the accused to be available in the office till 2.30 p.m. on Friday. 16. I have considered the contention of the learned counsel but the same does not cut ice with me. Ex. DAA would indicate the factum of instructions only and it cannot stop an officer from continuing to function even after office hours. Moreover, as per the prosecution version, the accused had called Chander Bhan, PW-7 to contact him at that very time on 19.10.1984. The tour programme of the accused for the month of October, 1984 does not prove his innocence. Moreover, as per the prosecution version, the accused had called Chander Bhan, PW-7 to contact him at that very time on 19.10.1984. The tour programme of the accused for the month of October, 1984 does not prove his innocence. I find that Ex. DFF was proved by Mohammad Ishaq who was posted in the general sanction of the Punjab Wakf Board, Ambala Cantt. He used to maintain log book of the official car and he claimed that the entry dated 19.10.1984 in the log book is in his own hand. The driver of the official car has not been produced and the then Secretary, whom the accused claimed to have accompanied on that visit, again did not step into the witness box. DW-4 has categorically deposed that it is not the duty of the driver to fill up the log book. However, he admitted that if the Secretary and the Officer on Special Duty travel together, either of them may sign the log book entries and further admitted that entries from 20.10.1984 to 30.10.1984 do not bear the initial of traveling officer. He has also conceded that the entries from 17.10.1984 to 1.11.1984 are with the same pen and in the same ink. He also admitted that it is only entry dated 19.10.1984 which bears the initial of the accused and that no other entry bears the signatures of the travelling officer. This fact clearly spells out that this particular entry bearing the initials of the accused have been introduced in order to enable the accused to take up the plea of alibi and moreover the witness is subordinate of the accused and the accused at the relevant time was holding the office of the Officer on Special Duty. 17. In view of the discussion made above, I find that the prosecution has been able to prove its case against the accused and there is nothing to be set right. No interference is called for and in the final analysis the appeal is liable to be dismissed. 18. On the point of quantum of sentence, the learned counsel appearing for the appellant has prayed that at the time of passing of the judgment in the year 1992 by the Special Judge, accused S.H. Kazmi was aged about 52 years. By now the appellant must have crossed over the age of 75 years. 18. On the point of quantum of sentence, the learned counsel appearing for the appellant has prayed that at the time of passing of the judgment in the year 1992 by the Special Judge, accused S.H. Kazmi was aged about 52 years. By now the appellant must have crossed over the age of 75 years. Since the registration of the case against the accused, he is facing mental stress and on account of the pendency of the appeal before this Court for the last 15 years, a sword of conviction is hanging on his head. Learned counsel has prayed for taking a lenient view against the appellant. 19. I have considered the submissions raised by the learned defence counsel and taking a lenient view, I order that conviction against the appellant shall be maintained, but keeping in view his age factor coupled with other family circumstances, the period of imprisonment recorded against appellant under Section 161 of the Indian Penal Code read with Section 5(2) and 5(1)(d) of the Prevention of Corruption Act on all the counts, is reduced to one year. The fine imposed against the appellant on all the counts by the learned Special Judge shall remain the same. Sentence awarded to the appellant under the various sections of the Prevention of Corruption Act and the Indian Penal Code, as referred to above, shall run concurrently. The appellant, who is on bail, is directed to be taken into custody to serve out the period of sentence of one year awarded to him by this Court. However, it is made clear that the period of sentence, if any already, undergone by him while remaining in custody, shall be set-off out of the sentence awarded by this Court. 20. The appeal filed by the appellant S.H. Kazmi is dismissed in part in the manner indicated above.