Decided on April 06,1979



- (1.) This is an appeal by the State against the order of acquittal passed by the Learned Special Judge. Kutch at Bhuj in special case No. 12 of 1975 acquitting the respondent accused for offences.under section 161 of the Indian Penal Code and 5(2) of the prevention of Corruption Act for which he was tried before the learned Special Judge.
(2.) Mr. Thakore, the learned Advocate appearing for the accused draws our attention to two important features in this case which, in the opinion of Mr Thakore, clinch the issue The first one is that, in the instant case, as admitted by the complainant himself in his evidence, the powdered currency note was taken out after P. Trivedi and other members of the raiding party rushed into the cabin of the accused from the drawer of the table by the accused at the instance of the P. I. and that thereafter, the experiment with solution of sodium bicarbonate was carried out dipping the fingers of the accused in that solution As rightly pointed out by Mr Thakore. this will have no meaning in view of the fact that while taking out the currency note from the drawer which had been treated with phenolphthalein powder, the accused's fingers would come into contact with the note and would thereby acquire a part of the powder from the note wnich, when dipped in the solution would turn the solution into one of pinkish colour But this would not prove that the accused had accepted the currency note. The experiment should have been carried out befoie the accused touched the rote after the arrival of the raiding party in which case it could have been stated with some force that powder got deposited on his fingers because he had touched and accepted the note from the complainant before the arrival of the raiding party, and thus, the prosecution case, as revealed by the complainant and the panch witness, would have been substantiated.
(3.) The second feature to which our attention has been drawn by Mr. Thakore is that in the instant case, the solution used for the purpose of carrying out the expriement when the fingers of the accused were dipped in ihe solution, is not preserved by the police, with the result that the defence is deprived of an opportunity to show that this solution did not contain any phenolphthale in powder as was the accused's case as he had not touched the note at all and he had not placed the same in the drawer, but the same was found lying on the table when the raiding party rushed in. There is a lot of substance in this contention also because has been held by a full bench of this court In criminal appeal No. 739 of 1976 decided on 6th December 1978, such solution has to be preserved, and if it is not preserved this court may draw a conclusion against the prosecution if the facts and circumstances of the case so justify.;

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