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2024 DIGILAW 1110 (GUJ)

Jagannath Ramrao Patil v. State Of Gujarat

2024-05-03

S.V.PINTO

body2024
JUDGMENT : 1. This appeal has been filed by the appellant under Section 374 of Code of Criminal Procedure, 1973 against the judgment and order of conviction passed by the learned Special Judge, ACB, Surat (hereinafter referred to as “the learned Trial Court”) in Special ACB Case No. 2 of 1998 on 30.10.2006, whereby, the learned Trial Court has convicted the appellant for the offence punishable under Section 7, 13(1)(d) and 13(2) of The Prevention of Corruption Act, 1988 (hereinafter referred to as “the PC Act”). 1.2 The appellant is hereinafter referred to as the accused as he stood in the original case for the sake of convenience, clarity and brevity. 2. The brief facts that emerge from the record of the case are as under: 2.1 That the accused was working as an Unarmed Head Constable in the Traffic Branch, Surat City and was a public servant. That the complainant Mr. L.J. Merunjai, Police Inspector, ACB Police Station, Surat had received information that the traffic police were illegally demanding bribes from vehicles in the name of entry fee and the complainant – Police Inspector – Mr. L.J. Merunjai decided to arrange for a decoy trap. That on 15.07.1997, the driver of truck bearing registration no. GJ-7-T-5374 – Balaji Revaji Thakor was halted on the Kadodara Highway and the procedure of decoy trap was explained to him and he agreed to cooperate and at 09.35 am, when the truck was near the Puna – Kumbhariya Octroi Point, the accused halted the truck and demanded and accepted the amount of Rs. 20/- as entry fee and after the members of the raiding party came, the accused was caught red handed with the tainted currency notes. That the Investigating Officer recorded the statements of the connected witnesses and drew the necessary panchnama and after the order of sanction for prosecution was received, a charge-sheet was filed before the Sessions Court, Surat which was registered as Special ACB Case No. 2/1998. 2.2 The accused was duly served with the summons and the accused appeared before the learned Trial Court, and after the due procedure under Section 207 of the Code of Criminal Procedure was followed, a charge at Exh. 5 was framed against the accused and the statement of the accused was recorded at Exh. 2.2 The accused was duly served with the summons and the accused appeared before the learned Trial Court, and after the due procedure under Section 207 of the Code of Criminal Procedure was followed, a charge at Exh. 5 was framed against the accused and the statement of the accused was recorded at Exh. 6, wherein, the accused denied all the allegations made in the charge and the entire evidence of the prosecution was taken on record. 2.3 The prosecution produced the following oral evidence to bring home the charge against the accused. Sr. No. PW Particulars Exh. 1. 1 Lilaji Revajibhai Thakor 8 2. 2 Chimanbhai Chhotubhai Surti 9 3. 3 Naginbhai Haribhai Chauhan 15 4. 4 Digambar Nathu Shinde 18 5. 5 Lal Mohammad Jummakhan Merunjai 20 6. 6 Ajabsinh Mulsinh Rathod 24 2.4 The prosecution also produced the following documentary evidence to bring home the charge against the accused. Sr. No. Particulars Exh. 1. Complaint 21 2. Panchnama 10 3. Receipt 11 4. Receipt 12 5. Record produced by Ramanlal Laxmidas 26 6. Record produced by Police Inspector J.V. Desai 25 7. Record produced by Arvindbhai Ishwarbhai 27 8. Record produced by Arun Ukad 28 9. Yadi 29 10. Yadi 22 11. Yadi 30 12. Order of sanction for prosecution 31 2.5 That after the closing pursis of the learned Public Prosecutor was filed at Exh. 32, the further statement of the accused under Section 313 of Cr.P.C. was recorded, wherein, the accused denied all the evidences produced by the prosecution and after the arguments of the learned Additional Public Prosecutor and the learned advocate for the accused were heard, the learned Trial Court by the impugned judgment and order dated 30.10.2006 was pleased to convict the accused and sentence him to rigorous imprisonment of three years and fine of Rs. 3000/- and in default, rigorous imprisonment of six months for the offence under Section 7 of the PC Act and rigorous imprisonment of three years and fine of Rs. 3000/- and in default, rigorous imprisonment of six months for the offence under Sections 13(1)(d) read with Section 13(2) of the PC Act. The learned Trial Court was further pleased to order that the sentences to run concurrently. 3. 3000/- and in default, rigorous imprisonment of six months for the offence under Sections 13(1)(d) read with Section 13(2) of the PC Act. The learned Trial Court was further pleased to order that the sentences to run concurrently. 3. Being aggrieved and dissatisfied with the said impugned judgment and order of conviction, the appellant has filed the present appeal mainly stating that the judgment and order passed by the learned Trial Court is contrary to law and evidence on record and the learned Trial Court has misread the evidence and has not considered that in the evidence of the panch witness, the presence of the decoy witness – truck driver was on the spot at 05.30 am but the panchnama was drawn at 10.45 am. That this itself creates a serious doubt about the story of the prosecution and the evidence of the PW1 – Lilaji Ravaji Thakor reveals a different story from the case of the prosecution and hence, the benefit of doubt ought to have been given to the accused. That the place of trap is also different in the panchnama and the evidence and this also creates serious doubt about the case of prosecution. That the identity of the person taking the illegal gratification has not been identified and the demand or acceptance of the illegal gratification is not proved beyond reasonable doubts. That independent witnesses, though available, have not been examined by the prosecution and in the overall evidence, it has come on record that the amount of illegal gratification was forcefully handed over to the accused for filing a false case. Moreover, the evidence of the Lamp Operator is also contradictory to the evidence on record and the order of sanction for prosecution has not been properly obtained and the sanction has been obtained without proper application of mind. That in fact witness Lilaji Revaji Thakor deposes of giving Rs. 200/- whereas, the complaint speaks of Rs. 20/- and there is material contradiction in the amount of illegal gratification. Moreover, there is no entry made in the station diary and that establishes the filing of a false case against the appellant. That the judgment and order of conviction is erroneous and bad in law and the same is required to be quashed and set aside and the accused be acquitted for all the offences. 4. Heard learned advocate Mr. Moreover, there is no entry made in the station diary and that establishes the filing of a false case against the appellant. That the judgment and order of conviction is erroneous and bad in law and the same is required to be quashed and set aside and the accused be acquitted for all the offences. 4. Heard learned advocate Mr. Mehul Sharad Shah for the appellant and learned APP Ms. Jirga Jhaveri for the respondent. 5. Learned Advocate Mr. Mehul Sharad Shah for the appellant has taken this Court through the entire evidence and has submitted that this is a case of running or decoy trap and it is the case of prosecution that the complainant –L.N. Merunjai – Police Inspector, ACB Police Station has received authentic information that the Traffic Police Officers are collecting bribe as entry fee and on the basis of the said information, the trap was arranged. That the raiding party went to Kadodara Cross-roads in a Tata Sumo vehicle and the truck was halted and the truck driver – Lalali Revaji Thakor agreed to accompany the raiding party as a punter hence, currency notes of Rs. 300/- were given to the said driver with necessary instructions and the currency notes were laced with anthracene powder. As per the case of prosecution, the raiding party went towards the Octroi Point of Surat Mahanagar Palika and obtained the necessary documents then went to Puna-Kambhariya Jakat Naka and when they had gone at a distance of about 100 meters, the accused stopped the truck and demanded the entry fee which was given by the driver – Lilaji Revaji Thakor. That in a case of decoy trap, there is no first demand and hence, the second demand and acceptance of illegal gratification must be proved by cogent and reliable evidence and in the entire evidence of the prosecution, there is no demand of any money and hence, the important ingredient of demand by the accused is not proved beyond reasonable doubts. That the evidence of the prosecution suffers from infirmity and this evidence cannot be relied upon to convict the accused. That if the complainant had received any information, the information must be recorded in the station diary but in the instant case, the information is not recorded in the station diary which infirmity goes to the root of the matter. That the evidence of the prosecution suffers from infirmity and this evidence cannot be relied upon to convict the accused. That if the complainant had received any information, the information must be recorded in the station diary but in the instant case, the information is not recorded in the station diary which infirmity goes to the root of the matter. Moreover, the truck driver who was the person who had given the amount of illegal gratification has not identified the accused in the Court during the trial and identity of the accused is not established and hence, the accused must be acquitted. The driver punter states that the accused had demanded Rs. 200/- as entry fees, whereas, the case of prosecution is that only one currency note of denomination of Rs. 20/- was recovered from the accused. Moreover, there is vital contradiction as to the place of trap and as per the case of prosecution, the place of demand and acceptance is Puna – Kumbhariya Jakat Naka, whereas, according to the punter driver, it was Bombay Market which is at a distance of about 2 kms. That even though the punter driver has not supported the case of prosecution, he has not been declared hostile and even though there are material contradiction and material omissions, he has not been cross-examined about these aspects. Hence, the evidence of the driver of the truck is not worthy of credence and his evidence being contradictory to the facts stated in the complaint and evidence of the panch witness cannot be relied upon. That the witnesses do not state that the accused had demanded for any specific amount at the time of the trap and it is not the case of prosecution that the entry fee was forcefully demanded by the accused. There was no discussion between the truck driver and the accused and no entry fee was required to be paid. That the accused had never demanded for any amount from the truck driver and the accused has not accepted any amount of illegal gratification and as per the settled principles of law, the vital ingredients of demand and acceptance are not proved. That the prosecution has not proved the case beyond reasonable doubts and hence, the impugned judgment and order of conviction must be quashed and set aside and the accused must be acquitted for all the offences. 5.1 Learned Advocate Mr. That the prosecution has not proved the case beyond reasonable doubts and hence, the impugned judgment and order of conviction must be quashed and set aside and the accused must be acquitted for all the offences. 5.1 Learned Advocate Mr. Mehul Sharad Shah has relied on Suraj Mal Vs. State (Delhi Admn.) reported in 1979 4 SCC 725 , wherein, the Apex Court has observed in para 2 as under: 2. ………..It is well-settled that where witnesses make two inconsistent statements in their evidence either at one state or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witnesses………. 5.2 Learned advocate Mr. Mehul Sharad Shah has relied on Khilli Ram Vs. State of Rajasthan reported in 1985 (1) SCC 28 , wherein, the Apex Court has observed in para 13 as under: 13. We are prepared to agree with Counsel for the State of Rajasthan that ordinarily a case of this type is difficult to prove and the law is settled that even the uncorroborated testimony of trap witnesses can be acted upon as indicated by this Court in the case of Prakash Chand v. State (Delhi Administtration) and Kishan Chand Mangal v. State of Rajasthan , but in the present case the evidence of the panchas is not available to support the prosecution case. There is discrepancy in many material aspects. The prosecution story is opposed to ordinary human conduct. The discrepancies go to the root of the matter and if properly noticed would lead any court to discard the prosecution version. Without powder treatment, for the absence of which no explanation has been advanced, the prosecution story becomes liable to be rejected. An overall assessment of the matter indicates that the story advanced by the prosecution is not true and the defence version seems to be more probable. In these circumstances we are of the view that sufficient material has been brought out to merit interference in this appeal. We allow the appeal, set aside the conviction of the appellant and acquit him. He is discharge from his bail bond. 5.3 Learned advocate Mr. Mehul Sharad Shah has relied on Kishorchand Mansukhlal Joshi Vs. State of Gujarat reported in 1985 GLH 103 , wherein, this Court has observed in para 3 as under: 3. We allow the appeal, set aside the conviction of the appellant and acquit him. He is discharge from his bail bond. 5.3 Learned advocate Mr. Mehul Sharad Shah has relied on Kishorchand Mansukhlal Joshi Vs. State of Gujarat reported in 1985 GLH 103 , wherein, this Court has observed in para 3 as under: 3. ……...The reason is this: In a corruption case the whole case depends upon the credibility of only two persons, the complainant and the panch, and thus, the career of a public servant depends on the evidence of the two persons and when it is close examined, it would depend upon one person and that one person would be a person who would be a panch witness in the case. This Court, further, observed that the creditworthiness of that person would be most important criteria, since, if, one unscrupulous complainant could find out one person to support him, the career of any public servant could be put to an end. Under the circumstances, this Court hold that the caution demands that the evidence of the complainant and the panch should be such by which no doubt is left in the mind of a judge in regard to the credibility and ultimately, therefore, acceptability of the evidence of those two persons………… 5.4 Learned advocate Mr. Mehul Sharad Shah has relied on Mansukhlal Vithaldas Chauhan Vs. State of Gujarat reported in (1997) 7 SCC 622 , wherein, the Apex Court has observed in para 14 to 18 and 19 as under: 14. From a perusal of Section 6, it would appear that the Central or the State Government or any other authority (depending upon the category of the public servant) has the right to consider the facts of each case and to decide whether that "public servant" is to be prosecuted or not. Since the Section clearly prohibits the Courts from taking cognizance of the offences specified therein, it envisages that Central or the State Government or the "other authority" has not only the right to consider the question of grant of sanction, it has also the discretion to grant or not to grant sanction. 15. Since the Section clearly prohibits the Courts from taking cognizance of the offences specified therein, it envisages that Central or the State Government or the "other authority" has not only the right to consider the question of grant of sanction, it has also the discretion to grant or not to grant sanction. 15. In Gokulchand Dwarkadas Morarka V. The King, AIR 1948 PC 82 , it was pointed out that:- "The sanction to prosecute is an important matter, it constitutes a condition precedent to the institution of the prosecution and the Government have an absolute discretion to grant or withhold their sanction. They are not, as the High Court seen to have thought, concerned merely to see that the evidence discloses a prima facie case against the person sought to be prosecuted. They can refuse sanction on any ground which commends itself to them, for example, that on political or economic grounds they regard a prosecution of substance it is plain that the Government cannot adequately discharge the obligation of deciding whether to give or withhold a sanction without a knowledge of the facts of the case." 16. In Basdeo Agarwalla v. Emperor, AIR 1945 FC 16, it was pointed out that sanction under the Act is not intended to be, nor is an automatic formality and it is essential that the provisions in regard to sanction should be observed with complete strictness. This Court in State through Anti- Corruption Bureau, Government of Maharashtra, Bombay vs. Krishanchand Khushalchand Jagtiani. (1996) 4 SCC 472 , while considering the provisions of Section 6 of the Act held that one of the guiding principles for sanctioning authority would be the public interest and, therefore, the protection available under Section 6 cannot be said to be absolute. 17. Sanction lifts the bar for prosecution. 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. (See: Mohd. Iqbal Ahmed vs. State of Andhra Pradesh, AIR 1979 SC 677 ). Sanction is a weapon to ensure discouragement of frivolous and vexatious prosecutions and is a safeguard for the innocent but not a shield for the guilty. 18. (See: Mohd. Iqbal Ahmed vs. State of Andhra Pradesh, AIR 1979 SC 677 ). Sanction is a weapon to ensure discouragement of frivolous and vexatious prosecutions and is a safeguard for the innocent but not a shield for the guilty. 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 and State of Bihar & Anr. vs. P.P. Sharma) 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 genuine 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. 5.5 Learned advocate Mr. Mehul Sharad Shah has relied on Gopal Lal Ghisulal Chhipa & Ors. Vs. The State of Gujarat reported in (1998) 1 GLH 943 , wherein, this Court has observed in para 8 and 16 as under: 8. 5.5 Learned advocate Mr. Mehul Sharad Shah has relied on Gopal Lal Ghisulal Chhipa & Ors. Vs. The State of Gujarat reported in (1998) 1 GLH 943 , wherein, this Court has observed in para 8 and 16 as under: 8. My attention was drawn to the decision of the Supreme Court in the case of Bhagwansingh v. The State of Rajasthan wherein it is held that if everything is done by the police officer, it would be an infirmity in the case which is bound to reflect on the credibility of the prosecution case. In that case, the complaint was recorded by the Investigating Officer, raid was also carried out by the Investigating Officer, search and seizure were also made by him and thereafter the investigation was also carried out by him and the charge-sheet was also filed by him before the Court. In this case, Mr. Vyas, the P.S.I., has also done everything right from recording of the complaint till the charge- sheet was filed before the Court. When that is so, the credibility of the case of the prosecution is certainly doubtful and the prosecution case must fail on that count. Even if this tarnishing point is ignored and the evidence is considered, there is nothing which would lead me to hold that the prosecution has succeeded in establishing the charge levelled against the deceased appellant. 09. …... 10. …... 11. …… 12. …… 13. …… 14. …… 15. …… 16. For the foregoing reasons, in my view the prosecution has not, beyond reasonable doubt, succeeded in establishing the case about demand and acceptance. The learned Judge below overlooking this aspect of the evidence fell into error. When the material ingredients, namely, demand and acceptance are not clearly established and the case in this regard is highly doubtful, the conviction and sentence inflicted cannot be maintained. The appeal is, therefore, required to be allowed. In the result, the appeal is allowed. The judgment and order of the lower Court convicting and sentencing the deceased appellant of the charges with which he was charged are hereby set aside and he is acquitted thereof. The bail-bonds are treated cancelled. 5.6 Learned advocate Mr. Mehul Sharad Shah has relied on Kanubhai Kantilal Patel Vs. The State of Gujarat reported in (1998) 1 GLH 924 , wherein, this Court has observed in para 6 as under: 6. The bail-bonds are treated cancelled. 5.6 Learned advocate Mr. Mehul Sharad Shah has relied on Kanubhai Kantilal Patel Vs. The State of Gujarat reported in (1998) 1 GLH 924 , wherein, this Court has observed in para 6 as under: 6. …...About the panchnama a question was raised before this Court in criminal Appeal No. 876 of 1981. In that case, the panchnama was not dictated by the panchas, but it was dictated by the police officer investigating into the matter. No reliance was therefore placed thereon because in that case it was held that it was not the record prepared on the basis of what was told by the panchas and what the panchas heard and saw. In this case also, it is made clear by Deveshbhai Ramanlal, that P.I Mr. Gadhvi dictated the panchnama to his writer constable and the panchas were asked to sign mechanically. The panchas have not stated what they saw and heard. When that is so as per the decision of this Court in Criminal Appeal No. 876 of 1981 the panchnama cannot be accepted as a supporting piece of evidence……. 5.7 Learned advocate Mr. Mehul Sharad Shah has relied on State of Gujarat Vs. Bhavansinh Vihol and Ors. reported in (1999) 1 GLH 947 , wherein, this Court has observed in para 23 as under: 23. Now, another infirmity which we could notice in this case is that the complainant Mr. Patil had received certain information earlier about the alleged illegal demand of bribe by the traffic police personnel on Ahmedabad - Bhilad Highway. But unfortunately he has not recorded that information in his station diary. When a specific question was asked, he refused to reply from whom he received the information. He has further testified that he has received the information from owners of trucks that traffic police personnel are demanding illegal gratification under the pretext of entry fee. If this was the information received by him, then he ought to have selected some person as a complainant who could have been acted as a punter or decoy witness. Therefore, the basic substratum of the prosecution case is not established and without recording entry in this regard in the station diary he had started the investigation. 6. Learned APP Ms. Therefore, the basic substratum of the prosecution case is not established and without recording entry in this regard in the station diary he had started the investigation. 6. Learned APP Ms. Jirga Jhaveri for the respondent – State has vehemently opposed the present appeal and has submitted that the learned Trial Court has appreciated all the evidence in proper perspective and has rightly convicted the accused as the tainted currency notes were recovered from the possession of the accused. That the impugned judgment and order does not suffer from any infirmities and the learned Trial Court has rightly convicted the accused and hence, the present appeal may be dismissed. 7. Before adverting to the facts of the present appeal, it is necessary to reiterate the cardinal principles of Criminal Jurisprudence as settled by the Hon’ble Apex Court in a catena of decisions and the first cardinal principle is that the prosecution is required to prove their case beyond reasonable doubts and the prosecution cannot claim any benefit of the weaknesses of the defence. The second cardinal principle is that in a criminal trial, the accused is presumed to be innocent unless he is proved guilty beyond reasonable doubts from the evidence of the prosecution and the third cardinal principle is that the burden of onus of proof never shifts from the prosecution. 8. As per the settled principles of law in conviction appeals, when the appellate Court finds that the findings of fact was based on a wholesome erroneous approach and the very basis of reasoning was not in the right perspective and the intrinsic merit of the evidence of the witness was not considered and the trial was perversely disposed of permitting manifest errors and glaring infirmities the Appellate Court can interfere and to exercise the powers in a conviction appeal a finding on merits after considering and meticulously dissecting the evidence on record is imperative. As far as the conviction under the P.C. Act is concerned, it is settled by the Apex Court that the prosecution has to prove the case beyond reasonable doubts and proof of demand is a sine qua non for an offence under the P.C. Act. That only if the demand is proved with cogent and convincing evidence, the prosecution would benefit by the presumption under Section 20 of the P.C. Act and the conviction would be sustained. 9. That only if the demand is proved with cogent and convincing evidence, the prosecution would benefit by the presumption under Section 20 of the P.C. Act and the conviction would be sustained. 9. To bring home the charge against the accused and to prove the charge against the accused beyond reasonable doubts, the prosecution has examined PW1 – Lilaji Revaji Thakor at Exh. 8. The witness is the truck driver and the decoy punter and he has stated that he was driving truck bearing registration no. GJ-7-T-5374 and was going from Ahmedabad to Surat with iron bars. That from Ahmedabad, he went from Sarkhej to Kheda, Nadiad, Baroda Bypass, Por, Bharuch, Ankleshwar and when he reached near Kadodara Crossroads at around 12.00 in the afternoon, some officers were sitting in plain clothes in a jeep and they called him and wrote his truck number and told him that if any traffic police or city police demand for any amount, to pay the amount that they gave him. That five to six officers were in the jeep and powder was applied on the currency notes and the currency notes were placed in the pocket of his shirt. That three to four persons sat in his truck and he had taken the truck towards Bombay Market and at that time, a constable in uniform halted his truck and demanded for entry fee. That the constable had demanded for an amount of Rs. 200/- and he had taken the currency notes which were in his pocket of denomination of Rs. 100/-, Rs. 20/- and Rs. 10/- and gave it to the police constable. That four to five other officers were there and after they took the amount, the necessary papers were made by the officers and a panchnama was prepared. That he could not identify who had taken the amount from him and he could not recognize the accused even though he was shown to him. During the cross-examination, the witness has stated that the procedure for application of the powder was done in the jeep and at that time, he was sitting behind in the jeep. That he could not identify who had taken the amount from him and he could not recognize the accused even though he was shown to him. During the cross-examination, the witness has stated that the procedure for application of the powder was done in the jeep and at that time, he was sitting behind in the jeep. That the bill that was given by his owner stated that the goods in the truck were of the Surat Mahanagar Palika and he had to fill a form at the Octroi Point which he had filled and given and thereafter, the truck was allowed to go. That four other trucks were coming with goods of Surat Mahanagar Palika and the distance between the Octroi Point and Bombay Market is about 15 minutes. That his truck was halted on the road to the Bombay Market and after the accused was caught, the ACB Officers told him to go and unload his vehicle. That he had kept his truck in the godown at the Bombay Market and had gone to the ACB Office. 9.1 The prosecution has examined PW2 – Chimanbhai Chhotubhai Surti at Exh. 9 and the witness is the panch witness who was in the truck as a shadow witness. The witness has stated that he and Naginbhai Haribhai Chauhan were asked to go the ACB Office and ACB Police Inspector – L.J. Merunjai was present and they were told that they had to go to Kadodara Crossroads. That at around 05.30 am, they reached Kadodara Crossroads and went from Makkai Pul, Railway Station and Varachha Road and reached Kamrej Crossroads and from there went to Kadodara Crossroads. That a Tata vehicle was halted and instructions as to how to apply powder on the notes were given and the ultraviolet lamp demonstration was given. That they halted a truck and and explained to the driver about the trap. That they reached the Puna – Kumbhariya Octroi Point and after they crossed Puna – Kumbhariya Octroi Point, a policeman asked them to take the truck at the side and they got down. That the police demanded an amount of Rs. 20/- from the driver as entry fee and the driver gave the amount, and he and the driver gave the predetermined signal and the ACB Officers came rushing in. That he told Police Inspector – Mr. That the police demanded an amount of Rs. 20/- from the driver as entry fee and the driver gave the amount, and he and the driver gave the predetermined signal and the ACB Officers came rushing in. That he told Police Inspector – Mr. L.J. Merunjai that the traffic police had taken the amount from the driver and the currency note was in the hand of the traffic police who had taken the currency note. The witness has not supported the case of prosecution and has been declared hostile and during the cross-examination by the learned advocate for the accused, the witness has stated that he has not dictated the panchnama and the police were dictating the panchnama and he had merely signed on the same. That the truck driver was halted at about 06.35 hours and after the demonstration, the anthracene powder and ultraviolet lamp was kept in the bag and the papers of the panchnama were also kept in the bag. That they left Kadodara at about 08.00 am and the Octroi had to be paid at the Puna Octroi Point. That other trucks were following their truck and the officers of the ACB were also following the truck. That at the Octroi Point, nobody had demanded for any amount and the Police Constable who was standing at the Octroi Point also did not demand for any amount. That the places where the truck was halted has a continuous flow of traffic and the signatures were taken by Merunjai Saheb after he was questioned and no signature was taken in the office. That all the signatures were taken at the same time. 9.2 The prosecution has examined PW3 – Naginbhai Haribhai Chauhan at Exh. 15 and the witness is the panch witness no. 2 who had gone along with Chimanbhai Chhotubhai Surti to the ACB Office and had thereafter, gone in the vehicle along with ACB Officials behind the truck. That after the trap was successful, he was instructed to take out the amount from the shirt pocket of the accused and he had taken out the money but he had not counted the money. That the currency notes were kept on piece of paper and thereafter, they went to the vehicle and battery light was shown on the hands of the police and powder marks were seen. That the currency notes were kept on piece of paper and thereafter, they went to the vehicle and battery light was shown on the hands of the police and powder marks were seen. That powder marks were also seen on his right hand and the ACB Officers had taken the currency notes that were found from the accused. That his signatures were taken at the Puna – Kumbhariya Octroi Point and thereafter, they came to the ACB Office on the next day and they had affixed their signatures. The witness has identified the person from whose pocket he has taken out the currency notes but could not recollect his name. The witness has been declared hostile and has been cross- examined at length by the learned APP but has not fully supported the case of prosecution. That during the cross- examination by the learned advocate for the accused, the witness has stated that he was called to the ACB Office on the next day and the signatures were taken. 9.3 The prosecution has examined PW4 – Digambhai Nathu Shindhe at Exh. 18 and the witness is the Lamp Operator who was working as a Head Constable in the ACB Police Station. The witness has stated that he was called on 15.07.1997 to the ACB Police Station between 04.30 – 04.45 am by Police Inspector – Mr. L.J. Merunjai and was instructed to act as a Lamp Operator. That he had gone along with the members of the raiding party to Kadodara Crossroads. The witness has fully supported the case of prosecution and has narrated all the events that had taken place thereafter. During the cross-examination by the learned advocate for the accused, the witness has stated that when the information was received, they did not get it verified at any other place and a truck that was going from Kadodara Crossroads towards Surat was halted. That both the persons who were in the truck were with them during the entire time and the demonstration of ultraviolet lamp was conducted in the presence of the two panch witnesses, the driver, the cleaner and the members of the raiding party. That the driver of the Tata Sumo was a member of the raiding party and he does not know as to who had seen the predetermined signal and who had gone from the Tata Sumo first. That the driver of the Tata Sumo was a member of the raiding party and he does not know as to who had seen the predetermined signal and who had gone from the Tata Sumo first. That all the necessary items were taken in a bag from the ACB Office and the test of the ultraviolet lamp was not done on the truck cleaner or the driver of the Tata Sumo. 9.4 The prosecution has examined PW5 – Lal Mohammad Jummakhan Merunjai at Exh. 20 and the witness was the Police Inspector of the ACB Police Station who had received the authentic information that the traffic police and the local police were demanding for illegal gratification of the amounts of Rs. 20/- to Rs. 300/- in the name of entry fee. That the witness had arranged for the decoy trap and has narrated the chronology of the entire events that had taken place and has stated that the panch witnesses were called and they had gone to Kadodara Crossroads where the truck bearing registration no. GJ-7-T-5374 was halted and the decoy trap was explained to the driver and he agreed to cooperate and they left in the truck and in the Tata Sumo. That after the predetermined signal was given by the decoy punter, the witness and others rushed in and after the trap was successful, the witness gave the complaint which is produced at Exh. 21 and the witness has identified the panchnama which is produced at Exh. 10. The witness has stated that further investigation was handed over to Police Inspector – A.M. Rathod. During the cross-examination, the witness has admitted that the conversation between the decoy punter and the accused was not heard by him and three days prior to the arrangement of the trap, he had received information about the amount of illegal gratification that was being taken. The witness has admitted that if information of any cognizable offence is received, the same has to be entered into the station diary but he had not made any entry and he had not received any information on 14.07.1997. That the entry was not made in the weekly diary also and the decoy truck had goods of Surat Mahanagar Palika. The witness has admitted that if information of any cognizable offence is received, the same has to be entered into the station diary but he had not made any entry and he had not received any information on 14.07.1997. That the entry was not made in the weekly diary also and the decoy truck had goods of Surat Mahanagar Palika. That the demonstration of the ultraviolet lamp and anthracene powder was done in the Tata Sumo in the behind seat and at that time, he was sitting in the middle seat and the person who was writing the panchnama was also seated in the middle seat. That no test of ultraviolet lamp was done in the truck and there is no mention as to how much amount the accused had when he had left his house. 9.5 The prosecution has examined PW6 – Ajabsinh Mulsinh Rathod at Exh. 24 and the witness was working as Police Inspector, ACB Police Station, Surat at the time of the trap. The witness was the member of the raiding party and he has narrated all the events that had unfolded and has stated that he had thereafter, taken over the investigation from Police Inspector – L.J. Merunjai and had thereafter, filed the charge-sheet on 13.02.1998. During the cross- examination by the learned advocate for the accused, the witness has stated that he has not recorded the statement of the complainant – L.J. Merunjai and as per the information received by the complainant, the Police Constables of Traffic Branch of Surat City and Local Police were demanding illegal gratification in the name of entry fee, but he had not investigated about any traffic point from Puna – Kumbhariya to Bombay Market Circle. That the panchnama was concluded at 10.45 am and the truck had entered into the Sagrampura Store at 10.50 hours, as per the entry no. 44 in the Register. That he had sent the draft of the order of sanction for prosecution and he had received the order of sanction for prosecution in which it is written that it is a draft of order of sanction for prosecution. That he had not recorded the statements of any persons. 10. On minute appreciation of the entire evidence of the prosecution, the decoy driver – PW1 – Lilaji Revaji Thakor has stated that one policeman had demanded for an amount of Rs. That he had not recorded the statements of any persons. 10. On minute appreciation of the entire evidence of the prosecution, the decoy driver – PW1 – Lilaji Revaji Thakor has stated that one policeman had demanded for an amount of Rs. 200/- from him and he had given the amount of Rs. 200/-, whereas, as per the case of prosecution the amount of illegal gratification was Rs. 20/-. The complainant has also not identified the accused before the learned Trial Court and the identity of the accused has not been established during the trial. There is a major contradiction in the place of trap and as per the case of prosecution, the trap was successful at the Puna – Kumbhariya Octroi Point but the decoy driver has stated that he had taken the truck to Bombay Market and at that time, the policeman had halted him and demanded for the amount of illegal gratification of Rs. 200/- which was given. Hence, the place of the trap is also different as stated by the decoy truck driver and in the panchnama. It appears that even though the decoy driver has not fully supported the case of prosecution and there are many contradictions in the evidence and the panchnama, the decoy driver has not been declared hostile before the learned Trial Court and he has not been confronted with the contradictions and the omissions in his deposition. That as far as the application of the anthracene powder and the ultraviolet lamp is concerned, the decoy driver has stated that the powder were applied on the notes and there is no clarification as to what powder was applied and he has stated that in the battery light, the traces of powder was found and has not clearly stated that in the ultraviolet lamp, florescent blue marks were found on the hands of the accused. That both the panch witnesses, PW2 – Chimanbhai Chhotubhai Surti and PW3 – Naginbhai Haribhai Chauhan have not supported the case of prosecution and there are major contradictions in the evidences of both the witnesses. Both the panch witnesses who are independent witnesses have been declared hostile and no reliance can be placed on the evidence of these witnesses. That both the panch witnesses, PW2 – Chimanbhai Chhotubhai Surti and PW3 – Naginbhai Haribhai Chauhan have not supported the case of prosecution and there are major contradictions in the evidences of both the witnesses. Both the panch witnesses who are independent witnesses have been declared hostile and no reliance can be placed on the evidence of these witnesses. Moreover, it is pertinent to note that the complainant – Lal Mohammad Jummakhan Merunjai – Police Inspector, ACB Police Station was the person who had received the authentic information and he had registered the complaint and he was the complainant but he has declared the complaint in his own presence. If the complaint produced at Exh. 21 is perused, it appears that the complainant has signed the complaint as the complainant and has also affixed his signature stating that the complaint has been recorded in his presence. There is evidence on record that the Investigating Officer PW6 – Ajabsinh Mulsinh Rathod was also a Police Inspector of the ACB Police Station and of the same level of officer as the complainant – L.J. Merunjai and was the member of the raiding party and was along with the complainant and the panch witnesses throughout. That the witness was well aware about all the procedures that had taken place and had taken over the investigation and thereafter, had filed the charge-sheet and it cannot be said that an independent investigation has taken place. The fact that the complainant Lal Mohammad Jummakhan Merunjai has filed the complaint in his own presence and has done major part of the investigation and has thereafter handed over the investigation to Ajabsinh Mulsinh Rathod who was also a member of the raiding party casts a shadow of doubt on the credibility of both the witnesses. 10.1 As far as the demand aspect is concerned, there is no clear demand made by the accused and the panch witnesses do not state that they have heard the demand made by the accused. The Trap Laying Officer has categorically stated that he was in the Tata Sumo vehicle and he has not heard the accused making any demand of illegal gratification and in the entire evidence, it appears that there is no iota of evidence that the accused had demanded for any amount of illegal gratification from the decoy truck driver. The Trap Laying Officer has categorically stated that he was in the Tata Sumo vehicle and he has not heard the accused making any demand of illegal gratification and in the entire evidence, it appears that there is no iota of evidence that the accused had demanded for any amount of illegal gratification from the decoy truck driver. That when there are major contradictions in the place of trap and also the demonstration of the anthracene powder and the ultraviolet lamp which was conducted in the behind portion of the Tata Sumo in the presence of 10 to 12 persons, it cannot be said that a fair demonstration has taken place. The panch witness has also stated that when the demonstration was being done, he was outside of the vehicle and this also casts a shadow of doubt on the case of the prosecution. Even otherwise, it is the case of prosecution that the accused had asked for entry fee and it is not the case of the prosecution that the entry fee was forcefully demanded and that entry would not be given to the vehicle if the entry fee was not paid. It appears from the case of prosecution that the goods that were filled in the truck were goods of Surat Mahanagar Palika and the vehicles that carry goods of Mahanagar Palika are exempted from entry fees and the driver of the truck did not refuse to pay the entry fee but readily agreed to give the fees and this also casts a shadow of doubt on the case of prosecution. That the demand is not proved beyond reasonable doubts by the prosecution and when both the independent panch witnesses have been declared hostile and have stated that they have merely affixed their signatures on the panchnama, the same cannot be relied upon and a conviction passed on such unreliable and doubtful evidence cannot be sustained. 11. That the demand is not proved beyond reasonable doubts by the prosecution and when both the independent panch witnesses have been declared hostile and have stated that they have merely affixed their signatures on the panchnama, the same cannot be relied upon and a conviction passed on such unreliable and doubtful evidence cannot be sustained. 11. As discussed above, in light of the judgments relied upon by the learned advocate for the appellant in Suraj Mal (supra), Kishorchand Mansukhlal Joshi (supra), Khiili Ram (supra) and Gopal Lal Ghisulal (supra), the prosecution has not proved the demand and acceptance beyond reasonable doubts to sustain the conviction under the PC Act and when the demand is not proved beyond reasonable doubts, which is sine qua non to constitute the offence under the PC Act, mere recovery of currency notes cannot constitute the offence and it cannot be said that the prosecution has proved the case beyond reasonable doubts. As discussed above, the prosecution has miserably failed to bring home the charge against the accused and when the decoy punter i.e. the person who has handed over the tainted currency notes to the accused does not identify the accused and when there is a major discrepancy in the amount of illegal gratification, it cannot be said that the prosecution has proved the case beyond reasonable doubts. That there is no reliable evidence to support the conviction and the learned Trial Court has failed to appreciate the entire evidence of the prosecution in proper perspective and has given a wrong conclusion and has convicted the accused. That the entire evidence of the prosecution is contrary and far from convincing and requires interference and consequently the appeal succeeds and is allowed and the impugned judgment and order passed by the learned Special Judge, ACB, Surat in Special ACB Case No. 2 of 1998 on 30.10.2006 is quashed and set aside and the appellant is acquitted from all the charges levelled against him. 12. Bail bond stands cancelled. Fine to be refunded after due verification. Record and Proceedings be sent back to the Trial Court forthwith.