Research › Search › Judgment

Gujarat High Court · body

2020 DIGILAW 265 (GUJ)

Rameshchandra Pujabhai Variya v. State of Gujarat

2020-02-07

A.P.THAKER

body2020
JUDGMENT : 1. The appellant has filed the present appeal under Section 374 of Criminal Procedure Code, 1973 (the Code) against the judgment and order of conviction and sentence dated 16.05.2005 passed by the learned Special Judge, 6th Fast Track Court, Sabarkantha at Himmatnagar, (hereinafter be referred to as “the Trial Court”) in Special Case No. 22 of 1997, whereby the learned Special Judge has held the appellant – accused guilty for the offences under Sections 7, 13(1)(d)(i)(ii)(iii), and 13(2) of the Prevention of Corruption Act (hereinafter be referred to as “the P.C. Act”) and sentenced him to undergo rigorous imprisonment of one year and to pay fine of Rs.5,000/- for the offence punishable under Section 7 of the P.C. Act and in default to undergo further rigorous imprisonment of six months and to undergo rigorous imprisonment of three years for the offence punishable under Section 13(1)(d)(i)(ii)(iii), and 13(2) of the P.C. Act and to pay fine of Rs.10,000/- and in default to undergo further rigorous imprisonment of six months. The learned Special Judge has ordered that all the sentences shall run concurrently. 2. Brief facts of the prosecution case is that on 03.07.1996, the complainant namely Chhabildas Naranbhai Patel, P.W.1 at Exhibit 29 was desirous to get the granite quarry on lease and, therefore, according to the provisions of the Mines and Minerals Act and Rules thereunder, he submitted an application dated 03.07.1996 to the office of the Geologist, Sabarkantha District and had paid requisite fees for such application. It is contended that the complainant met the accused for his application who was holding the post of Assistant Geologist and at that time, the accused told him that to process the application for grant of quarry lease, he has to pay further Rs.15,000/-. It is further contended that at that point of time, the complainant requested the accused to reduce the amount and it was conveyed by the accused that he may give Rs.5,000/- on next day in his office and if he was not available in his office then it could be paid at his residence. It is contended that as the complainant was not willing to pay the illegal gratification, he approached the office of ACB for filing the complaint at Ahmedabad and submitted his complaint to the Investigating Officer namely Hussainkhan Abdulakhan Pathan, P.W.4 at Exhibit 68. It is contended that as the complainant was not willing to pay the illegal gratification, he approached the office of ACB for filing the complaint at Ahmedabad and submitted his complaint to the Investigating Officer namely Hussainkhan Abdulakhan Pathan, P.W.4 at Exhibit 68. 2.1 It is contended that the concerned Investigating Officer has recorded the complaint and has initiated further procedure according to the provisions of the P.C. Act. and called two independent panchas. After recording the complaint and calling the panchas, necessary first part of panchnama was prepared and anthracene powder was applied on currency notes and it was put into the pocket of the complainant and Police Officer had directed him not to touch the currency notes and as and when the accused demands it to give the same to the accused. The panch No.1 was also instructed to remain with the complainant and hear what conversation is made between the accused and the complainant and panch No.2 was instructed to remain with the raiding party. 2.2 After following procedure thereof, panch No.1 and complainant went to the office of the accused i.e. Geologist and, there after few minutes, the complainant and panch witness had entered into the office of the accused and on asking by the accused, the complainant tendered the bribe amount to the accused and accused has accepted the same in presence of panch No.1. It is also contended that after getting necessary sanction from the Sanctioning Authority, Investigating Officer has filed the charge-sheet before the Special Judge. 2.3 The charge against the accused came to be framed by the learned Special Judge, vide Exhibit 17 for the aforesaid offences. The charge was denied by the accused. The accused pleaded not guilty to the charge and pleaded for trial. 3. It appears from the record that to prove the case, the prosecution has examined the following witnesses. P.W.1 Chhabildas Naranbhai Patel Exh.29 P.W.2 Lalitkumar Tulsidas Asari Exh.59 P.W.3 Dineshkumar Girishkumar Suthar Exh.64 P.W.4 Hussainkhan Abdulakhan Pathan Exh.68 P.W.5 C. K. Koshi Exh.69 P.W.6 Kirankumar Amanbhai Rathod 73 4. In addition to this, the prosecution has also produced the following documentary evidence. Sr. No. Particulars Exhibit 1 Complaint 30 2 Certified copy of muster roll. P.W.1 Chhabildas Naranbhai Patel Exh.29 P.W.2 Lalitkumar Tulsidas Asari Exh.59 P.W.3 Dineshkumar Girishkumar Suthar Exh.64 P.W.4 Hussainkhan Abdulakhan Pathan Exh.68 P.W.5 C. K. Koshi Exh.69 P.W.6 Kirankumar Amanbhai Rathod 73 4. In addition to this, the prosecution has also produced the following documentary evidence. Sr. No. Particulars Exhibit 1 Complaint 30 2 Certified copy of muster roll. 56 3 Letter No.ADM/CON/GO/290/287 of Mines and Minerals Department and copy of front page of service book of Rameshchandra Pujabhai Variya and first appointment note entered into service book and certified copy of transfer order to Himmatnagar. 57 4 Letter No.ADM/CON/GO/290/694 of Mines and Minerals Department 58 5 Panchnama of trap 60 6 Yadi regarding recovery of things from the possession of accused Rameshchandra P. Variya. 61 7 Resolution under Section 165 of Cr.P.C. and Search Panchnama 62 8 Sanction order for conducting the trial against the accused. 71 5. At the end of trial, after recording the statement of the accused under Section 313 of the Criminal Procedure Code, 1973. 6. After hearing both the sides and considering the evidence on record, ultimately, the Trial Court has convicted the accused and imposed punishment as referred to hereinabove. 7. Being aggrieved by the judgment and order of conviction and sentence, the accused has filed the present appeal on the various grounds as stated in the memo of appeal. It also reveals from the memo of appeal that the conviction has been assailed on the following grounds:- (a) In corruption cases, the Court can take cognizance of the offence only if the sanction order is voluntary, without any pressure or coercion and the same is accorded after proper application of mind. That the Sanctioning Authority, in the present case, Shri C. K. Koshi has not applied his mind as per the sanction order at Exhibit 71. He has accorded the sanction due to the order of the Minister concerned and, therefore, in the present case, the sanction is not valid. (b) The accused has no authority to sanction any quarry and the power lies with the Government to sanction the quarry. That prior to this case, the complainant and his accompany have filed applications for quarry, which were rejected. (c) The complainant is an accomplice and, therefore, there must be some corroboration from the independent source to the evidence of the complainant. In this case, initial, the demand is not established beyond reasonable doubt. That prior to this case, the complainant and his accompany have filed applications for quarry, which were rejected. (c) The complainant is an accomplice and, therefore, there must be some corroboration from the independent source to the evidence of the complainant. In this case, initial, the demand is not established beyond reasonable doubt. There was no demand at the instance of the accused but the complainant has offered the amount. (d) There is no cogent evidence regarding the demand by the accused and there is lack of evidence regarding acceptance thereof. (e) It is contended that the talk which had taken place, while offering the amount of Rs.5,000/-, is not in the same nature as according to the evidence of the complainant on earlier date when demand was made. (f) Regarding acceptance also, the evidence is different so far as the complainant and the panchas are concerned. According to the complainant, he offered the amount of Rs.5,000/-, the same was accepted by the accused and put the same in the right side pant pocket and, thereafter, he went out the chamber and passed the signal, whereas, according to panch No.1, first of all the complainant went out of the chamber under the guise of getting challan and, thereafter, the complainant went to the chair of accused and took out the smeared currency notes from the right side pant pocket and gave the same to the accused, who has accepted by right hand and put the same in the right hand side. Thus, there is contradictory evidence and no reliance can be placed. (g) The recovery is also doubtful as no sign of anthracene powder was seen on the person who had searched the person of the accused and his pant pocket. (h) As per the evidence on record, the marks of anthracene powder was seen as white marks. (i) The panchnama does not contain all the true facts. It is also contended that the facts narrated by the panch witness has not been narrated in the panchnama and the panchnama was dictated by the Investigating Officer. (j) The Investigating Officer has admitted in his evidence that it is not true that after the complainant coming out of the chamber of the accused and giving up the proposed signal and the trap was being carried out, the complainant gave the amount to the accused, has not happened. (j) The Investigating Officer has admitted in his evidence that it is not true that after the complainant coming out of the chamber of the accused and giving up the proposed signal and the trap was being carried out, the complainant gave the amount to the accused, has not happened. The defence of the accused is being proved from the evidence of the prosecution witnesses themselves. (k) The complainant and the Investigating Officer are interested witnesses and, their evidence needs to be scrutinized properly. (l) The Trial Court has not considered the aforesaid factors which goes to the roots of the case and has erroneously passed the judgment and order of conviction and punishment. 8. Heard Mr.K. B. Anandjiwala, learned senior counsel for the appellant – accused and Mr.Manan Mehta, learned Additional Public Prosecutor for the respondent – State. Perused the materials placed on record and the decisions cited at the Bar. 9. Mr.K. B. Anandjiwala, learned senior counsel for the appellant has vehemently submitted the same points which are narrated in the memo of appeal. He has read the entire evidence on record and has submitted that there is no cogent evidence regarding previous demand as demanded on the same date and the acceptance and recovery of the amount from the accused. He has submitted that the sanction alleged to be given by the Sanctioning Authority Shri C. K. Koshi is not free, but it was granted as stated in the sanction order itself that it was issued as per the order of Minister, Cooperative & Mines and Minerals. He has submitted that the evidence of the complainant and panch witness clearly suggests that wherever the sign of anthracene power was found, is in a white colour, whereas, as per the chemical substance of the anthracene powder, if it is seen through ultra violet lamp, it should be blue marks. Therefore, this scientific fact is required to be considered, while deciding the evidence on record. 9.1 While reading the evidence of the complainant and panch witness, Mr.Anandjiwala, learned senior counsel has submitted that there is material contradiction in the evidence of both these witnesses. Therefore, this scientific fact is required to be considered, while deciding the evidence on record. 9.1 While reading the evidence of the complainant and panch witness, Mr.Anandjiwala, learned senior counsel has submitted that there is material contradiction in the evidence of both these witnesses. He has submitted that the complainant is in habit of filing such complaint as he has filed ACB complaint in Maharashtra also and he wanted granite quarry from the Government and as his application was not granted, he has filed the complaint before ACB with a view to see that authority succumbed to his prayer to get quarry lease. That he has in connivance with the officer of ACB, has falsely implicated the present accused. He has submitted that the evidence of panch witness clearly suggests that after raid, the complainant has put the amount in the pocket of the accused and the accused has, specifically, stated before the Investigating Officer, immediately at that point of time he has not accepted the amount. He has drawn the attention of this Court to the evidence of the panch witness and has submitted that the person, who has get currency notes from the pocket of the accused, no signs of anthracene powder through ultra violet lamp was found on his hands. He has submitted that when there is doubt regarding demand and acceptance, then, no presumption can be raised against the accused. Mr. Anandjiwala, learned senior counsel has submitted that considering the entire evidence on record, it is crystal clear that the prosecution has miserably failed to prove all the three ingredients i.e. demand, acceptance and recovery and, therefore, the accused ought to have been acquitted from the charges levelled against him. According to him, the Trial Court has committed serious error of facts and law in convicting and punishing the accused. 9.2 While relying upon the following decisions, Mr.Anandjiwala, learned senior counsel has urged to allow the present appeal. (1) Ambalal Motibhai Patel Vs. State, 1960 GLR (1) 113; (2) Mansukhlal Vithaldas Chauhan Vs. State of Gujarat, 1998 (1) G.L.H. 248 ; (3) Nagjibhai Devshibhai Vankar Vs. State of Gujarat rendered in Criminal Appeal No.206 of1998 dated 15.02.2010; 10. 9.2 While relying upon the following decisions, Mr.Anandjiwala, learned senior counsel has urged to allow the present appeal. (1) Ambalal Motibhai Patel Vs. State, 1960 GLR (1) 113; (2) Mansukhlal Vithaldas Chauhan Vs. State of Gujarat, 1998 (1) G.L.H. 248 ; (3) Nagjibhai Devshibhai Vankar Vs. State of Gujarat rendered in Criminal Appeal No.206 of1998 dated 15.02.2010; 10. Mr.Manan Mehta, learned Additional Public Prosecutor for the respondent – State has vehemently submitted that the Trial Court has not committed any serious error of facts and law as there is ample evidence to connect the accused with the alleged crime. According to him, the ingredients of demand, acceptance and recovery are proved beyond reasonable doubt and there is no material contradictions in the evidence of the complainant as well as panch witness and the sanction accorded by Shri C. K. Koshi is legal and valid and he has specifically stated in his evidence that after perusing the materials placed on record, he has accorded sanction. Learned APP has submitted that the defence raised by the accused is not sustainable in the eyes of law and the impugned judgment and order is sustainable in the eyes of law and there is no need to interfere with the same. While reading the evidence of the complainant, panch witness, Investigating Officer as well as Sanctioning Authority, he has submitted that to establish the fact that the accused has initially demanded the amount and has accepted the same in presence of panch No.1 and the recovery thereof is duly proved from the evidence of the complainant, panch witness as well as Investigating Officer. 10.1 Learned Additional Public Prosecutor has placed written submissions which are as under:- That, on plain appreciation of the oral as well as documentary evidences led by the prosecution, it could be seen that all the prosecution witnesses had supported the case of prosecution and it is proved beyond doubt that the accused had demanded the amount of bribe i.e. illegal gratification when the complainant i.e. Prosecution Witness No.1 Chhabildas N. Patel, 1st time went to the office of the Asst. Geologist i.e. the accused for submitting an application to get the granite quarry lease and at that relevant point of time i.e. on 03.07.1996, the accused had demanded the illegal gratification amounting to Rs.15,000/- and ultimately, the same was reduced at the request of the complainant, Rs.5,000/- and that is up the 1st vital part and criteria ACB cases namely predemand is truly and completely satisfied by the prosecution. That, thereafter, on 06.07.2006, at the time of raid, in presence of Panch Witness No.1 prosecution Witness No.2 namely Lalitkumar Asari, the accused had accepted the amount of bribe amounting Rs.5,000/- and the same was recovered from the pocket of accused and when the experiment of ultraviolet lamp was done as per the prescribed procedure, the signs of anthrecene powder was duly found not only from the pocket of the accused but also from the hands of the accused and that is up the next 2 vital criteria and aspects of ACB cases i.e. acceptance and recovery is duly proved beyond doubt by the prosecution. That, thereafter, the panchnama was drawn as per the prescribed procedure and the material was collected by the investigating agency. That, all the prosecution witnesses have duly supported the case of prosecution not only in the examination in chief but also in the cross examination. Barring minor contradictions, undisputedly, there is no material contradictions in the depositions of the prosecution witnesses including the complainant and investigating officer. Considering these aspects, the learned Court below had believed the case of prosecution and the complainant and at the end of the trial, accused was convicted. That, so far so with regard to the aspect of sanction as per the prescribed procedure, it is respectfully stated that the sanctioning authority had accorded sanction to prosecute the accused after verifying the record, case papers, complaint as well as the material placed before him and thereafter after proper application of mind, the prosecution witness No.5 namely C K Koshi had accorded the sanction by way of order dated 30.01.1997 and the same is absolutely just and proper and in accordance with the provisions of Prevention of Corruption Act, 1988. That, in the said sanction letter i.e. Exhibit 71, two technical issues were pressed into service by the accused during the course of hearing of the criminal appeal as well in the grounds taken out in the memo of criminal appeal namely (i) the sanction was at the behest and under the instruction / directions of the then Minister and (ii) the sanction was not after proper application of mind and the format / draft of the sanction was provided to the concerned officer i.e. the sanctioning authority. With due respect, it is respectfully stated that as observed and recorded in the sanction letter dated 30.01.1997 at Exhibit 71 that the concerned officer had accorded the sanction after due verification of case papers, complaint and other material placed before him for recording the sanction and after application of mind, the sanction has been accorded to prosecute the accused and therefore there is no illegality, irrationality in granting the sanction and therefore no benefit should go to the accused of such technical aspect of receipt of the communication from the office of the then Minister accorded the sanction. That, as per the settled legal position, the burden lies on the appellant i.e. accused to prove that the sanction was granted in an absolutely mechanical manner and without proper application of mind. In case on hand, it is absolutely contrary to these aspects and on plain reading of the sanction at Exhibit 71, it can be culled out that the sanctioning officer had not only verified and gone through the complaint and the case papers but also after due application of mind, had thought it fit to grant the sanction to prosecute the accused and therefore the defence put forth by the accused is falling down and does not call for any interference in the impugned judgment of conviction. The respondent – State relies on two decisions of the Hon’ble Apex Court and the observations made thereunder with regard to the sanction and the same are as under:- 1. Balbhadra Parashar Vs. State of Madhya Pradesh, reported in AIR 2016 SC 1554 ; 2. Vinod Kumar Garg Vs. State (Government of National Capital Territory of Delhi) reported in JT 2019 (11) SCC 431; That, considering overall situation and the observations of the learned Court below, the criminal appeal is required to be dismissed and the impugned judgment is required to be uphold. State of Madhya Pradesh, reported in AIR 2016 SC 1554 ; 2. Vinod Kumar Garg Vs. State (Government of National Capital Territory of Delhi) reported in JT 2019 (11) SCC 431; That, considering overall situation and the observations of the learned Court below, the criminal appeal is required to be dismissed and the impugned judgment is required to be uphold. 10.2 While relying upon the following decisions, learned APP has urged to dismiss the present appeal. (i) Balbhadra Parashar Vs. State of Madhya Pradesh, AIR 2016 SC 14554; (ii) Vinod Kumar Garg Vs. State (Government of National Capital Territory of Delhi, JT 2019 (11) SC 431; 11. It is well settled by catena of decisions that an Appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. However, Appellate Court must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court. 12. Further, if two reasonable conclusions are possible on the basis of the evidence on record, the Appellate Court should not disturb the finding of acquittal recorded by the trial Court. Further, while exercising the powers in appeal against the order of acquittal, the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the Appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. However, the Appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the Appellate Court, in such circumstances, to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime with which he is charged. 13. In the case of Ambalal Motibhai Patel (supra), it has been observed as follows:- “Anthracene powder is one of many fluorescent substances. The fluorescent substances emit light under the influence of an exciting agent such as ultra violet rays. Ultra violet light is used to excite the substance in question. When a fluorescent substance is excited in such a manner, it emits light of a particular of a particular hue. Some fluorescent substances emit green light, some brown, some blue, some yellow, some light blue etc. There are only 3 or 4 substances emitting light blue light under the influence of the exciting agent ultra violet light. All these fluorescent substances are rare substances and ordinarily, therefore, if the prosecution case is that anthracene powder was applied and that under the influence of the ultra violet lamp light, a light blue light was found emitting from the hands of a particular person, it can be fairly inferred that anthracene powder was present on the hand of such a person....... In such cases, in order to enable a court to draw the inference that what was found on the person was anthracene powder the prosecution must establish that the tests for the detection of anthracene powder had been properly made and had yielded positive results. The main test is the emission of light blue fluorescent light under the influence of ultra violet rays. It is, therefore, essential for the prosecution to prove that there was light blue emission of light under the influence of ultra violet light. It is not sufficient for the prosecution to prove that under the ultra violet light they saw some sparkling or some shimmering.” 14. It is, therefore, essential for the prosecution to prove that there was light blue emission of light under the influence of ultra violet light. It is not sufficient for the prosecution to prove that under the ultra violet light they saw some sparkling or some shimmering.” 14. In the case of Mansukhlal Vithaldas Chauhan (supra), regarding validity of the sanction, the Apex Court has held and observed in paras-18 and 19 as under:- 18. The validity of the sanction would, therefore, depend upon the material placed before the sanctioning authority and the fact that all the relevant facts, material and evidence have been considered by the sanctioning authority. Consideration implies application of mind. The order of sanction must ex facie disclose that the sanctioning authority had considered the evidence and other material placed before it. This fact can also be established by extrinsic evidence by placing the relevant files before the Court to show that all relevant facts were considered by the sanctioning authority. (See also: Jaswant Singh vs. The State of Punjab, 1958 SCR 762 = AIR 1958 SC 12 ; State of Bihar & Anr. vs. P. P. Sharma, 1991 Cr.L.J. 1438 (SC)). 19. Since the validity of "Sanction" depends on the applicability of mind by the sanctioning authority to the facts of the case as also the material and evidence collected during investigation, it necessarily follows, that the sanctioning authority has to apply its own independent mind for the generation of genuie satisfaction whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force be acting upon it to take decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. If is shown that the sanctioning authority was unable to apply its independent mind for any reason whatsoever or was under an obligation or compulsion or constraint to grant the sanction, the order will be had for the reason that the discretion of the authority "not to sanction" was taken away and it was compelled to act mechanically to sanction the prosecution. 15. 15. In the case of Nagjibhai Devshibhai Vankar (supra), this Court has observed that there was strong motive to implicate the accused as the accused made recovery of the loan amount of his cousin from the complainant and on the previous day the complainant had informed the accused that he would pay Rs.1,000/- which was payable towards the outstanding loan of the cousin of the accused. It is also observed that mere acceptance would not lead to a presumption under Section 20 of the P.C. Act when it has been rebutted with the plausible explanation which is found reliable from the testimony of the defence witness which was corroborated by the testimony of the complainant himself in the cross-examination. 16. In the case of Balbhadra Parashar (supra), considering the peculiar facts of the cast, the Apex Court has held and observed that the sanction for prosecution was valid and when there is evidence that the Sanctioning Authority has applied its mind, the sanction would amount to valid sanction. 17. In the case of Vinod Kumar Garg (supra), in respect of the sanction order and validity of the investigation, the Apex Court ha referred to its own decision in the case of State of Maharashtra Vs. Mahesh G. Jain, (2013) 8 SCC 119 , wherein the principles of law governing the validity of sanction has been enumerated as follows:- “14.1. It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out. 14.2. The sanction order may expressly show that the sanctioning authority has perused the material placed before it and, after consideration of the circumstances, has granted sanction for prosecution. 14.3. The prosecution may prove by adducing the evidence that the material was placed before the sanctioning authority and its satisfaction was arrived at upon perusal of the material placed before it. 14.4. Grant of sanction is only an administrative function and the sanctioning authority is required to prima facie reach the satisfaction that relevant facts would constitute the offence. 14.5. The adequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order. 14.6. 14.4. Grant of sanction is only an administrative function and the sanctioning authority is required to prima facie reach the satisfaction that relevant facts would constitute the offence. 14.5. The adequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order. 14.6. If the sanctioning authority has perused all the materials placed before it and some of them have not been proved that would not vitiate the order of sanction. 14.7. The order of sanction is a prerequisite as it is intended to provide a safeguard to a public servant against frivolous and vexatious litigants, but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be a hypertechnical approach to test its validity.” The contention of the appellant, therefore, fails and is rejected.” 18. It is well settled by the Apex Court in the case of A. Subair Vs. State of Kerala, reported in (2009) 6 SCC 587 , while dwelling on the purport of the statutory prescription of Sections 7 and Section 13(1)(d) of the Act ruled that the prosecution has to prove the charge under beyond reasonable doubt like any other criminal offence and that the accused should be considered innocent till it is established otherwise by proper proof of demand and acceptance of illegal gratification, which are vital ingredient necessary to be established to record a conviction. 19. In the case of State of Kerala and another Vs. C. P. Rao, reported in (2011) 6 SCC 450 the Apex Court reiterating its earlier dictum, vis-a-vis the same offences held that mere recovery by itself, would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained. 20. In the recent enunciation by the Apex Court to discern the imperative pre-requisites of Sections 7 and 13 of the Act, it has been underlined in the case of B. Jayaraj v. State of A.P, reported in AIR 2014 SC (Suppl.) 1837 in unequivocal terms that mere possession and recovery of the currency notes from an accused without proof of demand would not establish the offence under Section 7 as well as Section 13(1) (d)(i) and (ii) of the Act. It has been propounded that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence under Sections 7 and 13 of the Act, qua Section 20 of the Act, which permits a presumption as envisaged therein it has been held that while it is extendable only in respect of the offence under Section 7 and not the offence under Section 13(1)(d)(i) and (ii) of the Act, it is contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of illegal gratification, it was emphasized, could follow only if there was proof of demand. Axiomatically, it was held that in absence of proof of demand, such legal presumption under Section 20 of the Act would also not arise. 21. It is worthwhile to note that in the case of Mohd. Iqbal Ahmed Vs. State of Andhra Pradesh, AIR 1979 SC 677 , which was relating to the validity of the sanction under the Prevention of Corruption Act, was under consideration, the Apex Court has referred that facts in paras-3 and 4 thereof with other facts, the sum and substance of the observation therein is reflected in the head notes which reads as under:- “It is incumbent on the prosecution to prove that a valid sanction has been granted by the Sanctioning Authority after it was satisfied that a case for sanction has been made out constituting the offence. This should be done in two ways; either (1) by producing the original sanction which itself contains the facts constituting the offence and the grounds of satisfaction and (2) by adducing evidence aliunde to show the facts placed before the Sanctioning Authority and the satisfaction arrived at by it. Any case instituted without a proper sanction must fail because this being a manifest defect in the prosecution, the entire proceedings are rendered void ab initio . Any case instituted without a proper sanction must fail because this being a manifest defect in the prosecution, the entire proceedings are rendered void ab initio . What the Court has to see is whether or not the Sanctioning Authority at the time of giving sanction was aware of the facts constituting the offence and applied its mind for the same; any sub-sequent fact which may come into existence after the grant of sanction is wholly irrelevant. The grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection to Government servants against frivolous prosecutions and must therefore be strictly complied with before any prosecution can be launched against the public servant concerned. It will not be correct to say that in view of the presumption which is to be drawn under S. 4, even if no facts are mentioned in the Resolution of the Sanctioning Authority it must be presumed that the Sanctioning Authority was satisfied that the prosecution against the accused should be launched on the basis of the presumption that the accused had received a bribe. In the first place, there is no question of the presumption being available to the Sanctioning Authority because at that stage the occasion for drawing a presumption never arises since there is no case in the Court. Secondly, the presumption does not arise automatically but only on proof of certain circumstances, that is to say, where it is proved by evidence in the Court that the money said to have been paid to the accused was actually recovered from his possession. It is only then that the Court may presume the amount received would be deemed to be an illegal gratification. The question of sanction arises before the proceedings come to the Court and the question of drawing the presumption, therefore, does not arise at this stage. The prosecution cannot be given a chance to produce the materials in the appeal before the Supreme Court to satisfy that the Sanctioning Authority had duly applied its mind to the facts constituting the offence. In a criminal case the Supreme Court or for that matter any court should not ordinarily direct fresh evidence to fill up a lacuna deliberately left by the prosecution. Cri. A. No. 703 of 1971. D/- 5-4-1973 (Andh Pra), Reversed.” 22. In a criminal case the Supreme Court or for that matter any court should not ordinarily direct fresh evidence to fill up a lacuna deliberately left by the prosecution. Cri. A. No. 703 of 1971. D/- 5-4-1973 (Andh Pra), Reversed.” 22. Now, it is well settled principle of law that the prosecution has to prove beyond reasonable doubt the three ingredients namely demand, acceptance and recovery of bribe from the accused. The prosecution has also to prove that the sanction for prosecution rendered by the competent authority who has applied its mind on the facts and record. Now, in this case, the one of the contention of the accused is that the sanction order passed by so-called Sanctioning Authority Shri C. K. Koshi, Additional Secretary is not valid sanction. 23. Now, on perusal of the evidence of so-called Sanctioning Authority Shri C. K. Koshi, Additional Chief Secretary, who accorded the sanction to prosecute the accused, it transpires that in the chief-examination, he has stated that he had received letters from ACB and Vigilance Commissioner and after careful and close scrutiny of the papers, there was subjective satisfaction that it was a fit case, in which, sanction could be accorded and accordingly, he gave the sanction, which is produced at Exhibit 71, in this case. 23.1 During the cross-examination, he has deposed that along with the papers received from the Vigilance Department, he has received rough draft sanction order and some corrections and additions have been made in the rough draft of sanction order and accordingly, the sanction was accorded as per the draft. He has produced rough draft of the sanction order which is produced at Exhibit 71. He has admitted that the office copy i.e. the rough draft of sanction order is verbatim the same as the sanction order was sent to the ACB Office. He has stated that the said order was typed by the typist and after preparing the type copy of the order it was placed before him for signature and accordingly, he signed the same. 23.2 Now, on perusal of Exhibit 70 and 71, it appears that the recommendation was made by the Secretary, Vigilance Department to accord the sanction. It also appears from both these documents that the sanction order is verbatim and the same is as per the draft and only the blanks have been filled in for preparing the sanction order. 23.2 Now, on perusal of Exhibit 70 and 71, it appears that the recommendation was made by the Secretary, Vigilance Department to accord the sanction. It also appears from both these documents that the sanction order is verbatim and the same is as per the draft and only the blanks have been filled in for preparing the sanction order. On perusal of the sanction order, it appears that there is averments made in it that the Hon’ble Minister, Cooperative & Mines and Minerals had examined and scrutinized the investigation papers and the Minister concerned has subjectively satisfied himself that the offence under the P.C. Act has been committed and he, accordingly, ordered the Additional Chief Secretary to accord sanction order under Section 19(1)(b) of the P.C. Act. This very averment made in the sanction order suggests that the Minister concerned has ordered the Additional Chief Secretary to accord the sanction. As such, the sanction accorded in the present case is not that of the application of mind on behalf of Shri C. K. Koshi, Additional Chief Secretary, but it was as per the command of the Minister to accord sanction and, therefore, in the present case, the so-called sanction is vitiated and it cannot be sustainable in the eyes of law and it cannot be treated as valid sanction. 24. Now, so far as the question of demand is concerned, on perusal of the evidence on record, it appears that according to the evidence of the complainant, he gave an application on 03.07.1996, at that time, the accused was on tour and he was not available and on 04.07.1996, the accused was on leave. According to the complainant, on 05.07.1996, he met the accused during 3.00 p.m. to 4.00 p.m. and at that time, the accused told him that if the lease is to be obtained then the complainant has to pay Rs.15,000/- to him. It is also deposed by the complainant that at the relevant time, he had no money and he informed the accused accordingly and thereupon, the accused told him to come with the amount of Rs.5,000/- on the following day and if he is not present in the office, then, he has to give the said amount at his residence. It is also deposed by the complainant that at the relevant time, he had no money and he informed the accused accordingly and thereupon, the accused told him to come with the amount of Rs.5,000/- on the following day and if he is not present in the office, then, he has to give the said amount at his residence. It is also deposed by the complainant that as he was not willing to give any bribe amount, he approached the ACB Office and there he has filed the complaint. The complainant has also narrated the procedure of ultra violet lamp and anthracene powder and having prepared the first part of the panchnama and has also stated that two panchas were called and he has explained his complaint to them. 24.1 During his cross-examination, he has, categorically, admitted that during the trap, the accused has not demanded any amount. He has also admitted that he was instructed by the ACB Officer that he has to meet the Geologist and in case, any demand is made then he has to touch the smeared currency notes. He has admitted that as the trap was laid, he offered the amount to the Geologist. 24.2 In the cross-examination, he has admitted that when he was instructed panch No.1, till then, the accused has not demanded any amount from him. He has also deposed that after accepting the amount from him by the accused, he has given signal to the raiding party and, thereafter, raiding party and panch No.1 came there and at the instance of the order of the ACB Officer, the currency notes were brought out from the pant of the accused. It is his version that at that point of time, the experiment of ultra violet lamp was carried out and in that process, no signs of anthracene powder was found on the hands of the person, who has brought out the currency notes from the pant pocket of the accused. He has admitted that in Maharashtra State, he has also filed cases against the Government servants under the P.C. Act. 24.3 During the cross-examination, the FIR lodged by him in Maharashtra has been produced. He has denied the suggestion that he is in habit of filing corruption cases against the Government servants when his works are not done as per his wish. 24.3 During the cross-examination, the FIR lodged by him in Maharashtra has been produced. He has denied the suggestion that he is in habit of filing corruption cases against the Government servants when his works are not done as per his wish. He has admitted that the power to grant lease is vested with the Government and the application filed before the Geologist is being sent to the Mamlatdar and, thereafter, it is forwarded to the State Government for necessary sanction. During his cross-examination, he has also admitted the fact that earlier, Maruti Granite and Golden Granite, in which, he is partner, have also approached the office of the Geologist for granting lease, which were not granted by the State Government. 25. P.W.2 Lalitkumar Tulsidas Asari at Exhibit 59 has, in his evidence, supported the version of the prosecution regarding the preparation of first part of panchnama and the fact that on the date of incident, he along with the complainant went to the office of the Geologist and raiding party were scattered themselves nearby. He has deposed that when he and complainant reached to the office of the Geologist, the accused was sitting in his chamber and the complainant sent a chit to the accused and at that time, they were instructed to sit and, thereafter, as the door was opened, the complainant, after taking permission from the accused, went inside the office. It is also narrated that thereafter, the complainant has told the accused as to whether there is any overlapping in the lease quarry and at that point of time, the accused has stated that if there is any overlapping, he will verify the record thereof. He has deposed that during that conversation, the complainant has told the accused that as per the their discussion, out of Rs.15,000/-, he has brought only Rs.5,000/- and what he should do and at that time, the accused told him to hand over it to him and at that time, the complainant told the accused that he has to take challan and thereafter, he gave the signal. It also reveals from his evidence that after giving signal to the raiding party, the complainant stand up from his chair and went near to the chair of accused and complainant lifted the shirt and took out the smeared currency notes by his right hand from the right side pant pocket and offered the same to the accused and the accused accepted the same by his right hand and put the same in the right side pocket of the pant in sitting position. 25.1 Regarding the demand, the evidence of panch witness is to the effect that the complainant asked the accused as to whether there is any overlapping regarding the area of lease quarry, to which the accused replied that he would examine it. It also reveals from the deposition of the panch witness that the complainant introduced panch No.1 and told the accused that he would be going to Mumbai and person concerned i.e. panch would remain in touch with the accused and he would act according to the accused. 26. If the version of the complainant and the version of the panch witness regarding the demand and acceptance as referred to above evidence is compared, it clearly reveals that there is material discrepancy with regard to the time of offering and accepting the amount. According to panch No.1, the members of raiding party had already entered into the chamber of the accused and, thereafter, the complainant took out smeared currency notes and gave the same to the accused. It also reveals from the evidence on record that the talk which alleged to have been taken place soon before acceptance, it reveals that there was no demand at the instance of accused, but, the complainant has offered the amount. 27. It also reveals from the evidence of the complainant that the bribe amount was demanded by the accused for forwarding his file, whereas, in his evidence, the complainant has stated that it was for getting the lease. It is pertinent to note that as per the prosecution case, on previous day the accused himself told him to give the amount of Rs.5,000/-, therefore, there was no question of saying to the accused that out of Rs.15,000/-, he has brought Rs.5,000/- and the remaining amount would be paid by the person who had accompanied i.e. panch No.1. It is pertinent to note that as per the prosecution case, on previous day the accused himself told him to give the amount of Rs.5,000/-, therefore, there was no question of saying to the accused that out of Rs.15,000/-, he has brought Rs.5,000/- and the remaining amount would be paid by the person who had accompanied i.e. panch No.1. The conversation stated to have been narrated in the evidence of the complainant and panch No.1 is different from the facts narrated in the panchnama. 28. Regarding acceptance, according to the complainant, he offered amount of Rs.5,000/- to the accused and the same was accepted by the accused and put the same in the right side pant pocket and, thereafter, he went out of the chamber and passed on the proposed signal. Whereas, according to panch No.1, first of all, the complainant went out of the chamber under the guise of getting challan, thereafter, the complainant went near the chair of accused and took out the smeared currency notes from the right side pant pocket and gave the same to the accused, who accepted by right hand and put the same in the right side pant pocket. Thus, so far as the acceptance is concerned, there is material contradiction in the evidence of the complainant as well as panch. 29. Further, it also reveals from the deposition of the complainant that the person, who had searched the pant pocket of the accused and the person of the accused, his hands were seen in ultra violet lamp rays did not show any light blue glittering marks. This fact creates doubt as to whether the amount was put into the pant pocket by the accused. Further, from the evidence which consists of complainant, panch, Investigation Officer and panchnama, it is found that on application of ultra violet lamp rays on the right side pocket of the pant and inside the pocket and the hands of the accused and the complainant, the white glittering marks of anthracene powder was seen. Now, admittedly, if the anthracene powder is applied on anything then under the ultra violet lamp it should be emission of blue fluorescent. Now, admittedly, if the anthracene powder is applied on anything then under the ultra violet lamp it should be emission of blue fluorescent. Now, in this case, as per the oral evidence, it is found that instead of blue fluorescent , the white fluorescent has been found on the pant as well as currency notes and the hands of the complainant and panch through whom the pocket of the accused was searched. This fact creates doubt as to use of the anthracene powder as well as it being seen on the muddamal articles as well as hands of the accused and the panch and the complainant. 30. It also reveals from the evidence that panch has stated in his evidence that there are facts which are missing in the panchnama. According to panch, on muddamal article No.3 pant, on the border of the pocket, shining marks were seen. It means that inside the pocket, no sign marks were seen as he himself has seen the pocket of the pant. It is pertinent to note that there is whisper in the panchnama that the pant pocket was seen in the ultra violet lamp rays at the time when the accused had put on the same. It is also pertinent to note that as per the evidence on record, the experiment of ultra violet lamp was carried out, at the time, the pant was put on by the accused. However, there is no mention about the same in the panchnama. Even after taking out the pant by the accused, the waist portion and other parts of the pant were not seen in ultra violet lamp rays. Obviously, while taking out the pant, he must have touched the zip and waist portion and it would have shown some glittering marks. However, the same was not examined. 31. It is pertinent to note that as per the evidence of the panch, after the trap being carried out, the complainant was uttering the words that he put to loss of Rs.15.00 Lakhs by not granting lease to him. However, this fact is not mentioned in the panchnama. According to the deposition of the panch that at no stage, the accused demanded the money and before the complainant offered the amount, the accused had no talk about the money. 32. However, this fact is not mentioned in the panchnama. According to the deposition of the panch that at no stage, the accused demanded the money and before the complainant offered the amount, the accused had no talk about the money. 32. It is worthwhile to refer to the evidence of Investigating Officer, who in his chief-examination, has narrated the entire proceedings, which are being carried out in general in nature of case of trap. The version of the Investigating Officer is specific that “it is not true that after the complainant coming out of the chamber of the accused and gave the proposed signal and trap was being carried out, the complainant gave the amount to the accused has not happened.” If this version is believed then it means, according to him, after the trap was being carried out, the complainant gave the amount to the accused. He has further stated in his deposition that it is not true that from the right side pant pocket of the accused, the notes were found. It suggests that the smeared currency notes were not taken out from the pant of the accused. Therefore, the defence of the accused that the amount was not given to him and he has not put the same in the pant pocket is liable to be believed. 33. It reveals from the evidence of the Investigating Officer that he has received the complaint as well as carried out the raid and he has dictated the panchnama. It is also an admitted fact that in the present case, the prosecution has used anthracene powder which has been deprecated by this Court as well as Supreme Court. 34. On re-appreciation of the entire evidence on record, it is clearly found that the Trial Court has committed an error of facts and law in convicting the accused for the offences alleged against him. The evidence on record is not consistent, cogent and reliable to connect the accused with the alleged crime. Further in view of the observations made hereinabove, regarding the sanction, the accused is entitled to be acquitted from the charges levelled against him. It appears from the judgment and order that the Trial Court has not properly appreciated the facts of illegal sanction and has not properly appreciated the factual aspects regarding demand, acceptance and recovery. Further in view of the observations made hereinabove, regarding the sanction, the accused is entitled to be acquitted from the charges levelled against him. It appears from the judgment and order that the Trial Court has not properly appreciated the facts of illegal sanction and has not properly appreciated the factual aspects regarding demand, acceptance and recovery. The impugned judgment and order of the Trial Court is not sustainable in the eyes of law and it is required to be set aside. 35. In view of the above, the present appeal is liable to be allowed and accordingly, it is allowed. The impugned judgment and order dated 16.05.2005 passed by the learned Special Judge, 6th Fast Track Court, Sabarkantha at Himmatnagar in Special Case No.22 of 1997 is hereby quashed and set aside. The appellant is acquitted from the charges levelled against him for the offence under Sections 7, 13(1)(d)(i)(ii)(iii) and 13(2) of the Prevention of Corruption Act. Fine, if any, paid by the appellant – accused to be refunded to him. Bail bond stands cancelled. Record and Proceedings to be sent back to the Trial Court forthwith.