STATE OF GUJARAT Vs. BHAVANJI PUJAJI MAKWANA

JUDGEMENT

(1.) THIS appeal is directed against the judgment and order of acquittal dated 31st January, 1992 passed by the learned Special Judge in Special Case No.23/1989. The case of the prosecution is that the Anti-Corruption Bureau at Ahmedabad received information regarding harassment by the traffic police, local police and R.T.O. officials to the truck drivers whereby they were extorting illegal gratification from the drivers by collecting "entry fees" from them illegally. That it was only after receiving the alleged entry fee, that the trucks were being allowed to enter into the city limits. The ACB Inspector, therefore, wanted to lay a trap. For this purpose, on 20th June, 1988, he contacted the panch witnesses and they were asked to remain prepared for carrying out the raid in the early morning on 21st June, 1988. Accordingly, on 21 st June, 1988, the two panch witnesses alongwith the ACB raiding party went to Adalaj on the Mehsana-Ahmedabad Highway. There, they stopped a truck bearing No.RNN-9121 and the driver Shahiram Chhogaram Bishnoi expressed his willingness to co- operate in the trap. The Police Inspector thereafter made the necessary arrangements for a running trap. The complainant ­ driver was asked to produce the bribe amount, however, since he did not have the said amount, the Police Inspector himself produced Rs.70/- which was to be offered as bribe after applying anthracene powder thereon. Thereafter the panch witnesses and the complainant were briefed regarding the role they have to play as well as the effect of the anthracene powder when examined under the ultraviolet lamp. The Rs.70/- currency notes which were smeared with the anthracene powder were placed in the pocket of the driver and he was instructed that he should not touch the same unless the same was demanded by the police personnel. Accordingly, the first part of the panchnama came to be drawn. Subsequently, the raiding party proceeded for the raid. The first panch was instructed to accompany the driver of the truck and the second panch was to remain with rest of the raiding party. The truck driver was instructed to proceed further and that upon the bribe being demanded, he should, by way of a pre-arranged signal, blink the headlights of the truck. Initially when they reached Chharodi Patiya, two policemen stopped the truck, however, after checking the papers, they permitted the truck to proceed further. Subsequently, when the truck reached near the Pirana Tolnaka, three policemen were present on the road. They ordered the truck to stop and one of the policemen came near the complainant ­ driver and told him that the truck was overloaded and hence, he would have to pay double entry fee. The complainant, therefore, got down from the cabin of the truck and told the policeman that he could not pay any money like that because he would have to account for the same to the owner of the truck. The policeman told him that since the truck was bearing double the normal load, he would have to pay double the entry fee and demanded Rs.40/- from the complainant. Thereupon, the complainant driver took out Rs.40/- from the anthracene tainted Rs.70/- currency notes from his trouser pocket and gave it to the accused No.1. The accused No.1 also told the complainant that if he takes out his diary, he would write down the amount in the diary so that he could show it to his employer for his satisfaction. Thereafter, the accused No.1 encircled a portion of one of the pages of the diary and made an entry therein in vernacular language and handed over the diary to the complainant. The sum of Rs.40/- given to the complainant comprised of three currency notes, one of Rs.20/- and the other two of Rs.10/- each. The accused No.1 after accepting the currency notes put them in his trouser. Thereafter, immediately the ACB raid was carried out and the accused No.1 was apprehended with the other two policemen of the traffic branch who were on duty with him at that time. The anthracene tainted currency notes were recovered from the accused No.1 and the serial numbers of the said currency notes were compared with the numbers written down in the first part of the panchnama and they were found to tally. Thereafter, the hands of the accused were observed under the ultraviolet lamp and it was found that they were stained with anthracene. Similarly, the hands of the complainant were also found to be stained with anthracene powder. The said facts were recorded in the second part of the panchnama after which, the complainant lodged the first information report pursuant to which investigation was set in motion. Upon conclusion of the investigation, chargesheet came to be submitted and the case came to be registered as Special Case No.23/1989. Upon conclusion of the trial, the learned Special Judge found that the prosecution had not established the charges levelled against the accused beyond reasonable doubt and acquitted them.

(2.) MR . H.K. Patel, learned Additional Public Prosecutor vehemently assailed the impugned judgment and order by submitting that the learned Judge has failed to appreciate the evidence on record in proper perspective while coming to the conclusion that the prosecution has not established the charges against the accused beyond reasonable doubt. Referring to the depositions of the witnesses namely, the panch No.1 and the Investigating Officer, it was submitted that both the witnesses have corroborated each other and had duly proved the demand, acceptance and recovery of the amount paid by way of illegal gratification. That the accused in their defence had not established as to why the amount had been demanded by them. Under the circumstances, the learned Judge was not justified in holding that the prosecution had not proved that the amount had been demanded by way of illegal gratification. It was submitted that admittedly the accused are public servants. In case the amount was legitimately recovered by way of entry fee, they were required to issue receipts in that regard. However, in the present case, the accused No.1 accepted the amount but did not issue any receipt in that regard. It was submitted that a mere endorsement in the diary of the complainant would not form part of the Government record so as to indicate that such amount had been received towards legitimate entry fee. It was further submitted that insofar as the acceptance and recovery of the amount is concerned, both the witnesses have duly proved through their depositions as well as through their panchnama that the anthracene tainted currency notes were recovered from the accused No.1 whose hands as well as the pockets of his pant were found to be stained with anthracene powder. Under the circumstances, the prosecution has duly proved that the accused had accepted gratification other than legal remuneration and that the accused had not rebutted the presumption which lay upon them under section 4 of the Prevention of Corruption Act, 1947 (hereinafter referred to as 'the Act'). It was submitted that under the circumstances, the impugned judgment and order passed by the learned Special Judge is required to be quashed and set aside and the accused are required to be convicted of the charges levelled against them.

(3.) BEFORE adverting to the merits of the case, it may be noted that in the present case, the offence is alleged to have taken place on 21st June, 1988 which is prior to the coming into force of the Prevention of Corruption Act, 1988. Hence, the provisions of the Prevention of Corruption Act, 1947 would be applicable in the facts of the case.