Delhi High Court
Darshan Lal vs State on 31 July, 2009
Author: G. S. Sistani
IN THE HIGH COURT OF DELHI, AT NEW DELHI
Crl.A No.73/2001
% Judgment delivered on July 31st, 2009
# Darshan Lal .... Appellant
Through : Mr. Anurag Jain, Adv. for the appellant.
Versus
$ State (CBI) .... Respondent
^ Through : Mr. Ashiesh Kumar, Adv. For the CBI.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
1.Whether reporters of local papers may be allowed to see
the Judgment ? YES
2.To be referred to the Reporter or not? YES
3.Whether the judgment should be reported in the Digest? YES
1. The present appeal is directed against the judgment 30.01.2001
and order on sentence dated 31.01.2001 passed by the learned
Special Judge, Tis Hazari in Criminal Case No.127/99, RC No.83-
A/95. The appellant was convicted to Rigorous Imprisonment
(hereinafter referred to as, ―R.I.‖) for a period of two years and a
fine of Rs. 10,000/- under Section 7 of the Prevention of
Corruption Act, 1988. In default of the payment of fine, the
appellant was to undergo RI for a period of six months. The
appellant was also convicted under section 13(1)(d) read with
section 13(2) of the Prevention of Corruption Act, 1988 for a
period of three years and a fine of Rs. 10,000/-. In default of the
payment of fine, the appellant was to undergo RI for a period of
six months. Both the sentences were to run concurrently, and
the period of detention if any undergone by the appellant, was to
be deducted.
2. The facts of the case as noticed by the learned Special Judge are
that a case was registered on the basis of a written complaint of
one Sh. Bankey Lal Chauhan regarding demand of Rs.1000/- as
bribe by Sh.Darshan Lal ASI, Police Station Vinay Nagar, Delhi,
for releasing his cousin, Pawan Kumar and his friend Vikram,
otherwise they would be falsely implicated in a case. Sh.Darshan
Lal, directed the complainant to come to Police Station Vinay
Nagar after 5:00 p.m. On 21.9.1995 while demanding bribe,
Darshan Lal had threatened to plant a knife and to send them to
jail, if demand was not fulfilled. Since Bankey Lal Chauhan was
not willing to pay the bribe, he on 21.9.1995 lodged a complaint
to the SP, CBI/ACB, Delhi, on the basis of which a case was
registered and one A.G.L. Kaul Inspector was deputed for laying
trap. On 21.9.1995, Inspector Kaul arranged for the presence of
two independent witnesses and completed the pre-trap
formalities. The pre-trap formalities were completed in the
presence of two witnesses namely, Mrs.Kiran Saxena, Assistant
Director and Mrs.Urmila Malhotra, Dy. Director, Central
Translation Bureau. The complainant produced a sum of
Rs.1000/- as trap money, which was treated with
phenolphthalein powder and practical demonstration regarding
the reaction of phenolphthalein powder with Sodium carbonate
solution was also given and explained to all members of the
raiding party. The tainted amount of Rs.1000/- was kept in the
pocket of the shirt of the complainant and he was instructed to
handover the same to Mr.Darshan Lal, ASI only on his specific
demand and not otherwise. Mrs.Saxena was asked to act as a
shadow witness, in order to overhear the conversation between
the appellant and the complainant and to see the transaction of
the tainted money. She was also directed to give a pre-arranged
signal on completion of the transaction, to the members of the
trap party.
3. The trap party left CBI office at 6:00 p.m. and reached near
Police Station Sarojini Nagar at about 6:25 p.m. The complainant
and shadow witnesses were directed to proceed to the premises
of the police station. At about 6:35 p.m. both of them came out
and the shadow witness informed that Sh.Darshan Lal had told
them to come after half an hour. At 7:15 p.m. both of them again
went inside the Police Station and after some time came out and
informed that Sh. Darshan Lal was not present at his seat. Again
at 7:50 p.m. the complainant and shadow witness went inside
the Police Station. At about 8:05 p.m., the pre-arranged signal
was received from the shadow witness. The members of the trap
party on getting the signal, rushed into the room no.1 of Police
Station Sarojini Nagar. Sh.Darshan Lal was challenged and
caught. The complainant and shadow witness confirmed
regarding the demand and acceptance of bribe by the appellant
and keeping the same in the backside pocket of his pants. S.I.
Vipin Kumar on the direction of Inspector Kaul recovered the
bribed money of Rs.1000/- from the back pocket of trousers of
the appellant. The number of G.C. notes so recovered tallied with
the numbers mentioned in the handing over memo. The right
hand fingers and back pants pocket of Darshan Lal were washed
in two separate freshly prepared solutions of Sodium Carbonate
which turned pink in colour and the same were kept in two
separate bottles and sealed and signed by the witnesses. During
the course of investigation, the sealed bottles containing hand
wash and pants pocket wash were sent to the CFSL for chemical
examination and as per the report of the Chemical Examiner, the
washes gave positive result confirming the presence of
phenolphthalein powder and Sodium Carbonate in the solutions.
Accordingly appellant was charge-sheeted for the offence
punishable under section 7 and 13 (2) read with section 13(1) (d)
of the Prevention of Corruption Act, 1988.
4. The appellant has assailed the impugned judgment dated
30.01.2001 and order on sentence dated 31.01.2001 firstly on
the ground that the sanctioning authority has failed to apply its
mind. Learned counsel for the appellant submits that the
sanction in this case was granted without any application of mind
and was solely based on the draft sanction, DW1/DA. He submits
that as per section 19 of the Prevention of Corruption Act,
granting sanction is not a mere formality, and in this case,
sanction was granted in a mechanical manner and the reasoning
of the Court below is without any basis. While relying upon
DW1/DA, learned counsel submits that the CBI had addressed a
letter to the Deputy Commissioner of Police, South West District,
calling upon them, that in case due to some reason if the
department wanted to depart from the draft sanction, the matter
may be discussed with the undersigned so that the sanction
given is not found wanting. It is submitted by counsel for the
appellant that reading of paragraph 4 of this letter would show
that the sanctioning authority was not allowed to apply its mind
independently. It is further contended that the sanction order is
vague and lacks material particulars as nowhere it has been
stated as to what is the material which has been perused and
considered by the sanctioning authority, which has accorded the
sanction. Mr. Jain, learned counsel for the appellant, strongly
submits that even otherwise, the evidence of PW-3, Sh. U.N.B.
Rao (sanctioning authority) is not reliable. Learned counsel for
the appellant has drawn the attention of the Court to the
evidence of PW-3 wherein PW-3 has stated that before according
sanction, he had perused all the statements of the witnesses
recorded, memos, CFSL report and other relevant documents
and was satisfied that their existed a prima faice case and
thereafter he accorded the sanction. Mr. Jain, learned counsel for
the appellant submits that the file of the sanctioning authority
was summoned and it was found that besides the draft order of
sanction and a report, none of the documents sought to be relied
upon by PW-3 were part of the original record. Mr. Jain also
contends that the order of sanction does not mention that the
sanctioning authority prior to grant of sanction, had perused
documents such as the statements, memos, statements of
witnesses, CFSL report and other relevant documents. Learned
counsel submits that application of mind prior to the grant of
sanction is a mandatory requirement and in support of this plea,
counsel relies upon the decision of the Apex Court in the case of
State of Karnataka Vs. Ameer Jan, reported at AIR 2008 SC
108 and more particularly relies on para 7.
5. Learned counsel for the appellant submits that cross-
examination of PW-1 would show that PW-1 had made material
improvements, besides there are contradictions in his statement
and he is not a trustworthy and reliable witness. It is contended
that Bankey Lal was rather himself a shadow witness of the CBI
and was used in the trap. The conduct of the Bankey Lal is
unusual inasmuch as the complainant, Bankey Lal had stated in
the complaint that Pawan Kumar and Vikram were related to
him, however, during cross-examination he was unable to
establish any relationship between himself, Pawan Kumar and
Vikram and thus this shows that there was no motive or reason
for Bankey Lal to make a complaint to the CBI against the
appellant herein. It is next contended that admittedly both,
Vikram and Pawan Kumar, were already arrested, therefore, the
appellant could have been of no help to the complainant. It is
thus contended that the story in this case is a false and
concocted. He also submits that there was absolutely no motive
nor any reason to show as to why the appellant would ask for
any bribe in view of the fact that admittedly both Pawan Kumar
and Vikram had already been arrested, and there was no ground
for him to falsely implicate them or show any favour to Pawan
and Vikram. It is also submitted that the trial court has infact
convicted the appellant on a mere possibility. The learned trial
Court Judge has observed in para 39 of the Judgment that Pawan
and Vikram were arrested and both of them were in the locker of
the police and thus possibility of demand of bribe by the
appellant from them cannot be ruled out.
6. He also submits that there are deviations and there was no
occasion for PW-2 to witness the exchange of money as there
was no possibility of this witness to be present at the time when
the alleged money was exchanged and even otherwise it was
dark. He thus contends that no reliance can be placed on the
testimony of PW-2. He also submits that in these circumstances
the appellant could not have been convicted as the order of
conviction can only be passed when prosecution has been able
to establish its case beyond any shadow of doubt. Learned
counsel for the appellant contends that there is a contradiction
with regard to the nature of conversation which took place
between the complainant and the appellant as described by PW-
1 as well as by PW-2. This by itself would show that the
testimony of these witnesses are unreliable, and note of which
has also been taken by the trial court.
7. He also submits that there are material contradictions as to
where the money was kept after the same was received. It is not
clear whether the money was kept in the back pocket of the pant
or whether the money was kept in the right side pocket of the
pant. This lapse according to the counsel for the appellant is
material and goes to the root of the matter. Receipt of money is
alleged to have been witnessed by PW-1 and PW-2, however,
there are material contradictions with regard to the place where
the money was demanded and accepted.
8. Mr. Anurag Jain also submits that PW-6, Munni Devi was a
material witness of the prosecution, who had turned hostile. PW-
6, Munni Devi did not support the case of the prosecution and
there is no reason to disbelieve her testimony as she was not
related to either Bankey Lal or the appellant herein. Her
evidence is independent and should have been relied upon and
considered by the trial court.
9. It is also contended that the complaint was admittedly written by
one Vijay Kumar, however, prosecution has failed to examine
Vijay Kumar as a witness and this prime evidence and a
necessary link, which is missing in the case. This submission is
also relevant in view of the fact that the time gap between the
demand of bribe and the complaint sought to have been made
was very short.
10. It is further submitted that Malkhana Moharar was not examined
as the washes of the bottle were to remain with the Malkhana
Moharar and further, the constable who took the sample bottle
for examination has also not been examined. Thus a very
important link which would establish the commission of the
offence, is missing.
11. It is also submitted that the evidence of PW-5 would show that at
the time when the raid was conducted, S.I. Ranbir Singh was
present in the room, However, S.I. Ranbir Singh had refused to
witness the post raid proceedings and this witness, i.e. PW-5 was
directed to witness the same. Counsel submits that non-
production of S.I. Ranbir Singh by the prosecution is fatal to their
case, in view of the fact that he was a natural witness present at
the spot and had witnessed the raid and yet he was not
examined by the prosecution. It is also submitted that it was
necessary for the prosecution to produce S.I. Ranbir Singh, as the
investigation by the prosecution must be fair and just, and this
witness was the person, who would have given true and correct
picture of the innocence of the appellant.
12. Per contra learned counsel for the respondent, CBI submits that
the prosecution has been able to establish their case beyond any
shadow of doubt. The pre-trap formalities were conducted by the
raiding party comprising of two independent witnesses, PWs-
Munni Devi and Kamlesh, before they proceeded to the Police
Station. He further submits that the appellant was caught red
handed taking bribe. The currency notes that were marked for
giving, were sprinkled with phenolphthalein powder and when
the appellant handled them and dipped his fingers in the Sodium
Carbonate solution, the same turned from colourless to pink. He
further submits that the sanction was granted after due
application of mind. He relies upon the evidence of PW-3, who
has clearly stated in his testimony that he had carefully perused
the documents and thereafter accorded the sanction. Counsel
for CBI has placed reliance upon C.S. Krishnamurthy v. State
of Karnataka reported at (2005) 4 SCC 81 and more particularly
paragraphs 7 and 9 of the same. He also submits that merely
because the sanction was granted as per the draft order, that by
itself cannot be a ground to raise the plea of non-application of
mind and relies on R. Sundararajan Vs. State, (2006) 12 SCC
749 and more particularly on paragraphs 12 - 14.
13. Counsel for CBI contends that the evidence of the trap laying
officer is trustworthy and reliable and in fact that itself can be
the sole ground for conviction of appellant and relies on State
of U.P. Vs. Zakaullah (1988) 1 SCC 557 and more particularly
paragraph 12 of the same. He also submits that non-examination
of Malkhana Moharar cannot be proved fatal to the case of the
prosecution, as putting of phenolphthalein powder on the notes
is not as per any statutory provision but for the satisfaction of
the officials and for this purpose he placed reliance on paragraph
13 of the above said judgment.
14. I have heard learned counsel for the parties and minutely
scrutinized the evidence on record.
15. The submissions of learned counsel for the appellant can be
summarized as under:
i. sanctioning authority has failed to apply its mind
inasmuch as the sanction order is vague and lacks
material particulars.
ii. the evidence of complainant, Bankey Lal (PW-1) is
unreliable.
iii. there was absolutely no motive nor any reason to
show as to why the appellant would ask for any bribe
in view of the fact that admittedly both Pawan Kumar
and Vikram had already been arrested.
iv. the evidence of shadow witness, PW-2 is unreliable.
v. there are material contradictions in the evidence of
witnesses of the prosecution with regard to where
the money was kept after the same was received
(back pocket or right side pocket) and contradictions
as to the place of demand and extraction of bribe.
vi. PW-6, Munni Devi, a material witness, did not support
the case of the prosecution.
vii. Vijay Kumar (the person who wrote the complaint);
Malkhana Moharar; constable who took the sample
bottle for examination; and S.I. Ranbir, have not been
examined by the prosecution, and the same is fatal
to the case of the prosecution.
16. The submissions of learned counsel for the respondent can be
summarized as under:
i. prosecution has been able to establish its case
beyond any shadow of doubt.
ii. appellant was caught red handed.
iii. sanction was granted after due application of mind.
iv. merely because the sanction was granted as per the
draft order, that by itself cannot be a ground to raise
the plea of non-application of mind.
v. evidence of the trap laying officer (PW-8) is
trustworthy and reliable and in fact that itself can be
the sole ground for conviction.
vi. non-examination of Malkhana Moharar cannot prove
to be fatal to the case of the prosecution.
17. In the facts of this case, it is seen that the appellant herein was
convicted by the learned trial Court Judge under section 7,
13(1)d read with section 13(2) of the Prevention of Corruption
Act, 1988. Section 7 of the Prevention of Corruption Act reads as
under:
"7. Public servant taking gratification other than legal
remuneration in respect of an official act.--Whoever,
being, or expecting to be a public servant, accepts or
obtains or agrees to accept or attempts to obtain
from any person, for himself or for any other person,
any gratification whatever, other than legal
remuneration, as a motive or reward for doing or
forbearing to do any official act or for showing or
forbearing to show, in the exercise of his official
functions, favour or disfavour to any person or for
rendering or attempting to render any service or
disservice to any person, with the Central
Government or any State Government or Parliament
or the Legislature of any State or with any local
authority, corporation or Government company
referred to in clause (c) of Section 2, or with any
public servant, whether named or otherwise, shall be
punishable with imprisonment which shall be not less
than six months but which may extend to five years
and shall also be liable to fine.
Explanations.--
(a) ****
(b) ―Gratification.‖ The word ―gratification‖ is not
restricted to pecuniary gratifications or to
gratifications estimable in money.
(c) ―Legal remuneration.‖ The words ―legal
remuneration‖ are not restricted to remuneration
which a public servant can lawfully demand, but
include all remuneration which he is permitted by the
Government or the organisation, which he serves, to
accept.
(d) ―A motive or reward for doing.‖ A person who
receives a gratification as a motive or reward for
doing what he does not intend or is not in a position
to do, or has not done, comes within this expression.
(e) ****‖
Section 13 of the Prevention of Corruption Act reads as under:
―13. Criminal misconduct by a public servant.--
(1) A public servant is said to commit the offence of
criminal misconduct,--
(a) if he habitually accepts or obtains or agrees to
accept or attempts to obtain from any person for
himself or for any other person any gratification
other than legal remuneration as a motive or reward
such as is mentioned in Section 7; or
(b) ****; or
(c) ****; or
(d) if he,--
(i) by corrupt or illegal means, obtains for
himself or for any other person any valuable
thing or pecuniary advantage; or
(ii) by abusing his position as a public
servant, obtains for himself or for any other
person any valuable thing or pecuniary
advantage; or
(iii) while holding office as a public servant,
obtains for any person any valuable thing or
pecuniary advantage without any public
interest; or
(e) if he or any person on his behalf, is in
possession or has, at any time during the
period of his office, been in possession for
which the public servant cannot satisfactorily
account, of pecuniary resources or property
disproportionate to his known sources of
income.
Explanation.--For the purposes of this section,
―known sources of income‖ means income received
from any lawful source and such receipt has been
intimated in accordance with the provisions of any
law, rules or orders for the time being applicable to a
public servant.
(2) Any public servant who commits criminal
misconduct shall be punishable with imprisonment
for a term which shall be not less than one year but
which may extend to seven years and shall also be
liable to fine.‖
18. The prosecution in support of its case examined ten (10)
witnesses. The statement of the accused (appellant herein) was
recorded under section 313 Cr.P.C., and one witness was
examined by the defence.
19. Learned counsel for the appellant has strongly contended before
me that the sanctioning authority did not apply its mind at the
time of granting sanction. While submitting that PW-3 copied in
verbatim the draft sanction order sent to it by the CBI, learned
counsel has submitted that the sanctioning order is invalid in
law. In the case of R. Sundarajan Vs. State, reported at (2006)
12 SCC 749, it was held:
―12. There is no dispute that the sanction order was
passed by the competent authority.
13. Dr. A. Chelliah, learned counsel for the appellant,
however, submitted that the sanction order was
vitiated as there was no material on which it could
have been passed. We do not agree.
14. In this connection, it may be mentioned that we
cannot look into the adequacy or inadequacy of the
material before the sanctioning authority and we
cannot sit as a court of appeal over the sanction
order. The order granting sanction shows that all the
available materials were placed before the
sanctioning authority who considered the same in
great detail. Only because some of the said materials
could not be proved, the same by itself, in our
opinion, would not vitiate the order of sanction. In
fact in this case there was abundant material before
the sanctioning authority, and hence we do not agree
that the sanction order was in any way vitiated.‖
20. Similarly in the case of C.S. Krishnamurthy Vs. State of
Karnataka, reported at (2005) 4 SCC 81, the Apex Court held as
under:
―7. This sanction order was proved by Mr V.
Parthasarthy, Deputy General Manager of Bangalore
Telecom as PW 40, he was competent authority to
accord sanction and he accorded the sanction for
prosecution of the accused for the alleged offence on
28-2-1990 as per Ext. P-83. He deposed that SP, CBI
sent a report against the accused and he perused the
report and accorded the sanction as per Ext. P-83. He
deposed that he was satisfied that there was a case
for prosecuting the accused for the alleged offence.
He admitted that he received a draft sanction order
and a draft sanction order was also examined by the
Vigilance Cell and then it was put up before him. He
also deposed that before according sanction he
discussed the matter with the Vigilance Cell. He also
admitted that he was not a law man, therefore, he
discussed the legal implication with a legally qualified
officer in the Vigilance Cell. He has denied the
suggestion that he did not apply his mind in
according sanction. It is no doubt true that sanction is
necessary for every prosecution of public servant,
this safeguard is against the frivolous prosecution
against public servant (sic) from harassment. But, the
sanction should not be taken as a shield to protect
corrupt and dishonest public servant. In the present
case, a perusal of the sanction order itself shows that
Shri C.S. Krishnamurthy's income from all known
sources between the period from 25-5-1964 to 27-6-
1986 was Rs 7,91,534.93. That income was from
salary, GPF advances, rental income, interest amount
from bank accounts and loan amount received from
LIC towards house constructions, the dividend
income, interest amount and gain in respect of chits
received from Navyodaya Sahakara Bank, Vyyalikaval
House Building Cooperative Society, Vishalam Chit
Funds and Reliance Industries, loan received from
friends and family members, gain towards sale of
scooter/car, sale proceeds of jewellery and income
received by family members and the total
expenditure incurred by the accused during this
period is Rs 2,41,382.85 and the total assets
acquired by the accused both movable and
immovable from 25-5-1964 to 27-6-1986 is
Rs 9,51,606.66p. Therefore, the accused has to
account for difference between the two. The sanction
itself shows that there is something to be accounted
for by the accused. When the sanction itself is very
expressive, then in that case, the argument that
particular material was not properly placed before
the sanctioning authority for according sanction and
the sanctioning authority has not applied its mind
becomes unsustainable. When sanction order itself is
eloquent enough, then in that case only formal
evidence has to be produced by the sanctioning
authority or by any other evidence that the sanction
was accorded by a competent person with due
application of mind. In the present case the learned
Additional Sessions Judge took a very narrow view
that all the papers were not placed before the court
to show that there was proper application of mind by
the sanctioning authority. The view taken by learned
Special Judge was not correct and the learned Single
Judge correctly set aside the order. In this
connection we may refer to a three-Judge Bench
decision of this Court in Indu Bhusan Chatterjee v.
State of W.B. in which a similar argument was raised
that the sanctioning authority did not apply his mind
to the facts of the case but merely perused the draft
prepared by the police and did not investigate the
truth of the offence. The learned Judges after
perusing the sanction order read with the evidence of
Mr Bokil held that there was a valid sanction
accorded by a competent person. In this case, the
accused was charged under Section 161 of the Indian
Penal Code and Section 5(2) of the Prevention of
Corruption Act. The accused was paid a sum of
Rs.100 in marked currency as illegal gratification at
Coffee House for clearing some claims entrusted to
him and same was found in his possession. Sanction
for prosecution of the appellant was sought from PW
5. Mr Bokil as a competent authority to grant
sanction, came in the witness box and he deposed
that he accorded sanction for prosecution after
proper application of mind. On these facts the
learned Judges observed that Ext. 6 on the face of it
disclosed a valid sanction for prosecution. In the
sanction order it was disclosed that the accused had
accepted a bribe of Rs.100 for clearing claim cases
and he was trapped. Though the sanctioning
authority who came in the witness box could not
answer some questions in cross-examination, yet this
Court held that sanction itself is eloquent read with
evidence of the sanctioning authority and the same is
valid. In the present case, the facts contained in the
sanction order read with evidence of the sanctioning
authority makes it clear that sanction was properly
accorded and is valid.
8. ****
9. Therefore, the ratio is sanction order should speak
for itself and in case the facts do not so appear, it
should be proved by leading evidence that all the
particulars were placed before the sanctioning
authority for due application of mind. In case the
sanction speaks for itself then the satisfaction of the
sanctioning authority is apparent by reading the
order. In the present case, the sanction order speaks
for itself that the incumbent has to account for the
assets disproportionate to his known source of
income. That is contained in the sanction order itself.
More so, as pointed out, the sanctioning authority has
come in the witness box as Witness 40 and has
deposed about his application of mind and after
going through the report of the Superintendent of
Police, CBI and after discussing the matter with his
Legal Department, he accorded sanction. It is not a
case that the sanction is lacking in the present case.
The view taken by the Additional Sessions Judge is
not correct and the view taken by learned Single
Judge of the High Court is justified.
10. In the case of Balaram Swain v. State of Orissa4
the High Court reversed the finding of the trial court
that the sanctioning authority has not applied his
mind on the materials placed before him. It was
observed in para 9 that the sanctioning authority,
namely, PW 4 has stated on oath that he perused the
consolidated report of the vigilance and fully applied
his mind and thereafter issued the sanction. The
admission of PW 7 in that case that the entire record
was not looked into, was held to be not fatal to the
sanction. The finding of the High Court was affirmed
by the Apex Court. Likewise, PW 40 i.e. the
sanctioning authority in the present case, has gone
through the report of the Superintendent of Police
and after discussing the matter with the Legal
Department has accorded sanction. That is enough to
show that there is due application of mind in the
present case.‖
21. The court is not to go into the technicalities of the sanctioning
order. Justice cannot be at the beck and call of technical
infirmities. The Court is only bound to see that the sanctioning
authority after the careful consideration of the material that is
brought forth it, has passed an order that shows application of
mind. Applying the principles laid down by the Apex court to the
facts of this case, I have carefully gone through the sanctioning
order, Ex. PW-3/A as well the statement given by PW-3 before
the Court. PW-3, Shri U.N.B. Rao, Addl. Commissioner of Police
(Administration) has stated in Ex.PW-3/A (sanction order), that all
the material placed before him had been carefully perused by
him and it was after due consideration that he had accorded the
sanction. Relevant portion of the sanction order is produced here
under:
―And whereas, I, U.N.B. Rao, Deputy Commissioner of Police,
South West District, n. Delhi being the Authority Competent to
remove Shri Darshan Lal, ASI from office, after fully and
carefully examining the materials placed before me in regard to
the said allegations and circumstances of the case, consider
that the said Shri Darshan Lal should be prosecuted in the court
of law for the said offence.‖
22. PW-3 further stated on oath that in September, 1995, he was
posted as DCP/South-West and he accorded sanction Ex.PW-3/A
and which bears his signatures. PW-3 has very categorically
stated that after perusing of all the statements of the witnesses
that were recorded, memos, report of the CFSL and other
relevant documents, he found and was satisfied that a prima
facie case was made out against the appellant under Section 7
read with Section 13 of the Prevention of Corruption Act and thus
the sanction was accorded. PW-3 withstood the cross-
examination by counsel for the appellant and did not budge from
his stand that he had taken into account all the material on
record, before according sanction for prosecution of the
appellant. PW-3 further denied the suggestion that he did not
peruse the aforesaid documents as stated in the examination-in-
chief. In view of above, I find no merit in the contention of the
counsel for the appellant that the sanctioning authority did not
apply its mind before according sanction. The learned trial court
judge while dismissing this contention of the counsel for the
appellant has rightly relied upon several judgments inter alia
Gurubachan Singh Vs. State reported at 1970 Cri.LJ. 674,
wherein it was held that the intention of the Legislature in
providing for a sanction U/s 6 of the Act for the offence under the
[Old] Act is to afford a reasonable safeguard for the public
servant in the discharge of his official duties. The sanction does
not intend that a public servant who is guilty of the particular
offence mentioned in that section should escape the
consequences of his criminal act by raising the technical plea of
invalidity of the sanction. The section safeguards the innocent
but does not shield the guilty person.
23. Another case relied upon by the learned trial Court Judge was
Central Bureau of Investigation Vs. V.K. Sehgal & Another,
reported at 1999, Cri.LJ 4593, wherein it was held that the absence of
sanction or invalid sanction to prosecute public servant cannot be
ground to set aside conviction and sentence for offence under P.C. Act,
1947. It was further held that while dealing with the appeal filed
against the conviction and sentence of any offence mentioned in 1947
Act, the legal position is that no such conviction and sentences shall be
altered or reversed merely on the ground of absence of sanction much
less on the ground for want of competency of the authority, who
granted the sanction.
24. In another case law reported as State of Madhya Pradesh &
Ors. Vs. Jagdish Prasad Gupta, reported at JT 2000 (1) SC
518, while dealing with the provision of Prevention of Corruption
Act, 1988, it was laid down that:
―Procedural delays and technicalities of law should not
be permitted to defeat the object sought to be achieved
by the Act. ..........‖
25. In my considered opinion, it would be incorrect to conclude that
simply because the sanctioning order Ex. PW-3/A is a virtual
reproduction of the draft sanction letter Ex. DW1/DA, the same
would be deemed to have been passed without any application
of mind. There is no necessary concomitant corollary between
the two. Even otherwise, while dismissing this contention, it was
specifically observed by the trial Court Judge that although the
sanction order, Ex.PW-3/A is almost the verbatim reproduction of
the draft sanction order, Ex.DW-1/DD, but this draft sanction,
Ex.DW-1/DD was not put to PW-3 at the time of his cross-
examination. I am in firm stead with the opinion of the learned
trial court judge that there is no force in the contention of the
learned counsel for the appellant that the sanctioning order
contains any infirmity or any irregularity.
26. The next point urged before me by learned counsel for the
appellant is that the conduct of PW-1 (Bankey Lal Chauhan) was
unusual, PW-1 has made material improvements, there are
contradictions in his statement and he is not a trustworthy and
reliable witness. It would thus be relevant to first analyse the
evidence of PW-1. PW-1 has deposed in his examination-in-chief
that Pawan Kumar is the son of his uncle and Vikram is his friend.
Both of them are his neighbours. On 21.9.1995 ASI Darshan Lal
came to their Jhuggi and took Pawan Kumar and Vikram in Police
Station Vinay Nagar and put them in lock up on 21.9.1995 in the
evening at about 4:00 or 5:00 p.m. He went to the Police Station
Vinay Nagar, to find out about his cousin Pawan Kumar, where he
met ASI Darshan Lal, whom he identified correctly in Court. On
his enquiring about detention of Pawan Kumar, ASI demanded
Rs.1000/- for releasing Pawan Kumar and asked for money the
same evening. PW-1 went to CBI office and met S.P./ CBI
(Mr.Dutta) to whom he narrated the facts and submitted his
written complaint (PW-1/1). He deposed that the complaint has
been written in the hand writing of his brother, Vijay Kumar, but
was signed by him at the encircled portion. This complaint was
handed over by S.P./CBI to one Inspector Kaul and two witnesses
both ladies were called. They were introduced to him and his
complaint was shown to the witnesses, who asked him questions
regarding contents of the complaint. Although, he did not
remember the name of the said ladies. This witness produced
Rs.1000/-. Number of notes were noted down on a piece of
paper which was signed by him as well as by the witnesses (PW-
1/B). Tainted notes were kept in his pocket by Mr.Kaul. He was
directed to give the tainted notes to the appellant only in the
event of specific demand. One of the said ladies was directed to
accompany as shadow witness and to watch the proceedings as
well as the conversation. She was also directed to give signal by
placing hand over her head in the acceptance of bribe by the
accused. She was also told to introduce herself as the employer
(Malkin) of Bankey Lal Chauhan. Before leaving for the raid, the
member of the raiding party were searched and they were not
permitted to carry any cash. The pocket of the I.O. contained
empty bottle seal of CBI, sealing material etc. He further
deposed that the raiding party left the CBI Office around 6:00
p.m. and reached Vinay Nagar Police Station. The vehicle was
stopped at post office near Police Station. PW-1 as well as the
shadow witness went inside the Police Station. They went to the
room of the appellant. On seeing the lady appellant was
annoyed and aksed ―Madam ko kui lai? Inko bhej do.‖ PW-1
replied that she was his employer. Thereafter the appellant told
PW-1 to come half an hour later and they both came out of the
police station. PW-1 further stated that after half an hour, they
both went to the room of the appellant, but he was not available,
and they came out. After half an hour again, they again went to
the room of the appellant and he was present there. Appellant
asked, ―Paisa laya hai ?‖ PW-2 replied ―Sahib paisey laya hoon,
ab to meri madad karo.‖ On this the appellant replied ―Han
karta hun‖. Thereafter, they all came out of his room in the
corridor and PW-1 handed over the tainted money (Rs.1000/-) to
the appellant, who accepted the money in his right hand and
kept it in the right hand side back pocket of his pant. Meanwhile,
shadow witness gave the pre-arranged signal and the CBI team
rushed to the spot. Two CBI officials apprehended the appellant
and Inspr. Kaul challenged the appellant that he had received
bribe. Thereafter, Additional SHO, Smt. Kamlesh was summoned
to the spot. Shadow witness told CBI official about the
acceptance of bribe by the appellant. Inspr. Kaul searched the
appellant and recovered the tainted money of Rs.1000/- from the
right hand side back pocket of the pant of the appellant. CBI
officials then compared the numbers of the recovered GC notes
with those already noted down in Ex.PW-1/B. The numbers
tallied. In a glass of water, a chemical powder was dissolved,
and the appellant was made to dip his right hand fingers in the
said solution. The solution turned from colourless to Pink. The
said right hand wash was transferred into a clean empty bottle,
its mouth was covered, rapped with a piece of cloth and sealed
with the seal of the CBI. Identification labels were prepared,
pasted on the said bottle and signed by the witnesses. Similarly,
the inner lining of the right hand side back pocket pant of the
appellant was dipped in a colourless solution prepared and which
turned pink. The solution was transferred into an empty bottle
and sealed with the seal of the CBI. Recovery memo was
prepared at the spot, which is Ex.PW-1/D. PW-1 further identified
the case property i.e. Rs.1000/- and stated that Rs.100/- G.C.
notes are Ex.P-1 to P-4 and Rs.50/- GC notes are Ex.P-5 to P-16.
As per PW-1, one, Munni Devi, was also present at the spot at the
time of post-raid proceedings and that it was correct to say that
name of the shadow witness is Kiran Saxena and she
accompanied him to the police station.
27. At this stage, learned PP sought to question PW-1. In the cross-
examination by learned PP for the CBI, PW-1 deposed that he did
not remember whether or not he had handed over the tainted
money to the appellant in his room while he was sitting on his
chair.
28. Learned counsel for the appellant also cross-examined PW-1 and
wherein PW-1 stated that no criminal case has ever been
registered against him at police station Sarojini Nagar or
Chanakya Puri. Learned counsel for the appellant has submitted
before me that PW-1 is unreliable in view of his admission that
Pawan Kumar is not his real brother and that he is not related to
him through family or by blood, contrary to what he has stated in
his examination-in-chief. I have carefully gone through the
examination-in-chief as well as the cross-examination of PW-1.
Although I find that PW-1 has stated in his cross-examination
that Pawan Kumar is not the son of his real maternal uncle but
he has clarified that when he came to Delhi after leaving his
family, since then, he has been living with the father of Pawan
Kumar and therefore, he considers Pawan Kumar to be his
brother. PW-1 further denied the suggestion that the explanation
given by him was incorrect. Therefore, I find no force in the
contention of learned counsel for the appellant that this minor
variation goes to the root of the matter.
29. PW-1 has further stated in his cross-examination that it was
correct to say that on 21.09.1995, when he went to meet ASI
Darshan Lal in the Police Station, at that time Pawan Kumar as
well Vikram were in the lock up. PW-1 withstood the incisive
cross-examination and went on record to deny that the appellant
did not demand any money or that a false complaint had been
lodged against him. I find no merit in the contention of the
learned counsel for the appellant that there are any material
contradictions in the version of PW-1 which go to the root of the
matter so as to compel me to negate the entire version of PW-1.
PW-1 has in clear terms deposed that the appellant had asked
and received the illegal gratification in terms of the money. PW-
1 in his cross-examination by counsel for the appellant, further
deposed that on 29.01.1995, at the time of the initial demand,
appellant asked him to meet him inside the police station in the
evening after 6.00 P.M. PW-1 further stated in his cross-
examination that it was incorrect to suggest that his complaint
Ex.PW-1/A was false. He further stated that he did not remember
whether or not he mentioned in his statement before the CBI that
ASI Darshan Lal had told him to send the shadow witness away
or that he replied that she was his employer. The witness was
confronted with the statement Ex.D/A wherein it was not so
recorded. As per PW-1, on the first visit, ASI DArshan Lal asked
him to come after some time and also enquired whether or not
PW-1 had brought the money. This conversation took place in
the presence of the shadow witness. After coming out from the
room of appellant, Darshan Lal, stated that he did not tell the CBI
team that he had been asked to come after half an hour or that
he had enquired about the money. After half an hour when PW-1
along with the shadow witness went to the room of appellant, he
was not present at his seat. Munni Devi was also not present
there, though she was present in the said room at the time of his
previous visit. After waiting for 20-25 minutes when they again
went to the room of appellant, Darshan Lal, was present there,
as also Munni Devi. PW-1 stated that it was correct to say that
one Sub-Inspector was also present in the room of the appellant
at that time. However, he refused to admit or deny whether the
name of the said Sub-Inspector was Ranbir Singh. PW-1 has
further deposed that he had taken out the tainted money from
the pocket of his shirt and passed on the same to the appellant.
After the pre-appointed signal, the appellant was apprehended
by the raiding party in his room. PW-1 stated that he does not
know if hot words were exchanged between SI Ranbir and the
CBI officials. Further, as per PW-1, one CBI official had searched
the appellant and recovered the tainted money, but PW-1 stated
that he was sure that the said person was not Mr. Kaul. In light
of the deposition of PW-1, I am of the considered opinion that
there are no material contradictions in his evidence, which go to
the root of the matter. Minor contradictions are bound to creep
in when a long time has passed between the date of the incident
and the recording of the evidence before the Court. I also find
that there is no force in the argument of counsel for the
appellant that there was absolutely no motive nor any reason to
show as to why the appellant would ask for any bribe in view of
the fact that admittedly both Pawan Kumar and Vikram had
already been arrested. The appellant in his statement under
section 313 Cr.P.C. has admitted that on 21.09.1995, after
coming back from the Court, at about 7 p.m., he had arrested
Pawan Kumar and Vikram under FIR No. 483/95 dated
20.09.1995 and put them in lock-up of the police station. PW-1
has stated that the appellant had asked for bribe. Since the
factum of Pawan Kumar and Vikram being in lock up is admitted,
I have no reason to disbelieve the testimony of PW-1.
30. PW-2, Smt. Kiran Saxena, shadow witness, has wholeheartedly
supported the case of the prosecution. PW-2 has deposed that on
21.09.1995 she went to the CBI office to be a witness in this
case. At the CBI office, PW-2 met the complainant, Bankey Lal
and Inspr. Kaul. She had a brief conversation with the
complainant and satisfied herself about the genuinity of the
allegations contained in the complaint. Thereafter, Rs.1,000/- in
the denomination of 4 GC notes of Rs.100 and 12 GC notes of
Rs.50 were marked to be given to the appellant in case of any
demand made by him. The number of those GC notes was noted
down as Ex.PW-1/B, which bears her signatures at portion-B.
Those GC notes were treated with a chemical powder and
thereafter handed over to the complainant, Bankey Lal. As per
PW-2, she was directed to accompany the complainant to the
spot, with a view to watch the proceedings and in case of
acceptance of bribe, she was to give a signal by scratching her
head. PW-2 has further deposed that she along with PW-1 left
the CBI office at around 5.45 p.m. and reached Sarojini Nagar
police station. Thereafter, she along with PW-1 went to the room
of appellant, Darshan Lal, who was busy in his work at that time.
PW-2 correctly identified the appellant, who was present in the
court. The appellant asked PW-1 to come after sometime and
enquired as to her identity. And to this PW-1 replied ―MADAM
HAI MAIN INKE SAATH KAAM KARTA HU‖. On this appellant said
―MADAM KO KYON TAKLEEF DI‖. PW-2 has further corroborated
the verion of PW-1 that it was on the third occasion that the
appellant asked the complainant ―PAISE LAYE HO‖. The
complainant replied in the affirmative and said ―LAIYA HUN‖.
Thereafter some conversation regarding the money took place
and the appellant said ―PANDRAH SO DO‖. PW-2 requested the
appellant ―ISSE KAM LE LIJYE‖. On this, the appellant, took them
outside the room and said ―ACHA LAIYE LAIYE JALDI KIJYE‖. The
complainant said ―MERA KAAM KAR DIJYEGA‖. And the appellant
replied ―CHINTA MAT KARIYE‖. PW-2 further corroborated that
PW-1 gave the tainted money to the appellant who kept the
same in the back pocket of his pant. Thereafter, PW-2 and PW-1
proceeded to go out of the building and the appellant went to his
room. PW-2 gave the pre-arranged signal and the appellant was
caught red handed at the spot. PW-2 has further affirmed that
the tainted money was recovered from the appellant, the
numbers of the currency notes tallied with those already
recorded and further that the Sodium Carbonate solution was
prepared and the appellant was made to dip his fingers in the
said solution, which turned from colourless to Pink. Thereafter,
the bottle was sealed with the seal of CBI. PW-2 further stated
that the aforesaid recovered GC notes, bottles of washes, pant of
the appellant, etc. were seized by the CBI vide recovery memo
Ex.PW-1/D and which bears her signature at encircled portion ‗B'.
The appellant was arrested and his personal search was
conducted vide Ex.PW-2/A. PW-2 further correctly identified the
case property at the time of her deposition in the court.
31. In the cross-examination by learned counsel for the appellant,
PW-2 deposed that apart from this case, she had never been
arrayed as a witness by the CBI. PW-2 further stated that the
appellant had accepted the bribe money outside his room in the
aforesaid dark area. The appellant was apprehended by the CBI
officials in his room. PW-2 denied the suggestion that tainted
money was not recovered from the appellant. She further denied
that that day before appearing as a witness she was made to
refresh her memory by the CBI officials by going through the
copy of her statement recorded under Section 161 of the Cr.P.C
and also denied that she was a tutored witness and had been
deposing falsely.
32. PW-7, Km. Urmil Malhotra (Recovery Witness), has also stood by
the case of the prosecution and named the appellant as the
person from whom the tainted money was recovered. PW-7 has
stated that on receipt of signal, all the members of the raiding
party went inside the police station and apprehended the
appellant, Darshan Lal. Search of the appellant was conducted
and the tainted money was recovered from the back pocket of
his pant. PW-7 has further gone on record to say that the
numbers of the currency notes recovered from the appellant,
tallied with the currency notes that were marked to be given to
the appellant in case of any demand by him. As per PW-7, she
signed the personal search memo Ex.PW-2/A; recovery memo,
Ex.PW-1/D; site plan, Ex.PW-7/A; and facsimile of the seal, Ex.PW-
2/B. She further identified the currency notes as Ex.P-1 to P-16
and Ex.P-21 as the pant of the appellant. This witness was cross-
examined and wherein she denied that she was deposing falsely
or that she was a tutored witness.
33. Both PW-2, shadow witness, and PW-7, recovery witness, are
independent witnesses and there is nothing on record to suggest
that they had any previous enmity or grudge against the
appellant. The two witnesses have convincingly nailed the
appellant and have withstood the contortionist cross-
examination. I find the version of PW-2 and PW-7 to be
trustworthy and reliable.
34. Further the case of the prosecution has been corroborated in
material particulars by PW-5, Smt. Kamlesh, who was posted as
an Additional SHO, Sarojini Nagar on 21.09.1995. PW-5 has
particularly stated that she joined the post-raid proceedings and
has corroborated the entire version of the prosecution. PW-5
denied the suggestion that no post-raid proceedings took place
in her presence or that she had falsely nailed the appellant.
35. PW-8, Sh. A.G.L. Kaul, Inspr. CBI, has also deposed that in
September, 1995, he was posted in the Anti-Corruption Branch of
CB, Delhi. PW-8 has also lend credence to the case of the
prosecution. PW-8 has stated that at 6.25 p.m. the trap team
including the complainant and independent witnesses reached
Police Station Sarojini Nagar. The members of the trap party
took their position while the complainant and the shadow witness
were asked to go inside the police station and meet Darshan Lal.
PW-8 has further stated that after a few minutes they both
returned and reported that Darshan Lal was not inside his room
and that they had been told that Darshan Lal was not likely to
return any time soon. Thereafter the complainant and the
shadow witness went inside the police station twice or thrice to
verify whether Darshan Lal was available or not. Last such
attempt was made at around 7.30 p.m. At around 8.00 p.m., the
independent witness gave the pre-arranged signal and
whereafter, PW-8 along with members of the trap party, rushed
inside the police station. On the pointing out of the shadow
witness, Darshan Lal was apprehended from both the wrists.
PW-8 disclosed his identity and challenged Darshan Lal to have
demanded and accepted bribe from the complainant. The GC
notes were got recovered and found to tally with the numbers
already noted down in the annexure of the handing over memo.
This witness has also affirmed that the sodium carbonate
solution was prepared which turned from colorless to pink after
the appellant dipped his right hand fingers in the solution and
also when the lining of the back right side back pocket pant was
dipped in the solution.
36. Although, PW-6, Munni Devi resiled from her statement given
before the police and was declared a hostile witness, however,
the case of the prosecution cannot be defeated on this ground
alone in view of the fact that PW-1, complainant; PW-2, shadow
witness have affirmed that the appellant demanded illegal
gratification in terms of money and accepted the same. PW-5,
Additional SHO; PW-7, recovery witness; and PW-8, trap laying
officer, have all affirmed that the tainted money was recovered
from the appellant.
37. Learned counsel for the appellant has next urged before me that
there are material contradictions as to where the money was
kept after the same was received. It is urged that it is not clear
whether the money was kept in the back pocket of the pant or
whether the money was kept in the right side pocket of the pant.
In the facts of this case, on a closer reading if the evidence, it is
seen that PW-1 has stated in his examination-in-chief that the
appellant kept the tainted money in his right hand side back
pocket of his pant. The money was recovered from the right
hand side back pocket of his pant and further that the inner
lining of the right hand side back pocket of the pant of the
appellant was dipped in the chemical solution. In the cross-
examination by the learned PP, PW-1 has stated that he cannot
admit or deny if the money was recovered from the right side
pant pocket of the appellant by SI Vipin Kumar. In the cross-
examination by the learned counsel for the appellant, PW-1
stated that he did not remember if he had stated in his
statement before the CBI that the appellant kept the tainted
money in his right side pocket of the pant. PW-2, shadow
witness has stated that the appellant kept the tainted money in
the back pocket of his pant. And that the inner lining of the right
back pocket of the pant was dipped in the chemical solution. In
the cross-examination by the learned counsel for the appellant,
PW-2 denied the suggestion that the appellant did not accept the
bribe amount or that he did not keep the same in the right back
pocket of his pant. PW-5 has also stated that the back pocket of
the pant of the appellant was dipped in the chemical solution
which turned from colourless to pink. PW-7, recovery witness has
also stated that the money was recovered from the back pocket
of the pant of the appellant and that inner lining of the hip
pocket of the pant was dipped in the chemical solution. PW-8,
trap laying officer has deposed that the tainted money was
recovered from the right side back pocket of the trousers of the
appellant and further that the inner lining of the back pocket of
the pant of the appellant was dipped in the chemical solution.
Thus all the witnesses have stated that the money was
recovered from the back pocket of the pant of the appellant.
Further as observed by the trial Court Judge, the appellant in his
statement under Section 313 of the Cr.P.C. simply states that no
money was recovered from him. He has not specifically denied
the prosecution story that no money was recovered from his
pant pocket. There is no force in the contention of the counsel
for the appellant that there is any anomaly with regard to
whether the money was kept in the back pocket of the pant or
whether the money was kept in the right side pocket of the pant.
Even otherwise, it is immaterial whether the money was kept in
the right hand side pant pocket or in the back pocket of the pant.
The relevant portion is that the money was recovered from the
appellant, the same having been affirmed by the prosecution
convincingly.
38. Further it has been contended by the appellant that there are
material contradictions with regard to the place where the
money was demanded and accepted. Learned trial court Judge
has observed in his judgment that though it is correct that the
initial case of the prosecution was that the appellant had
demanded and accepted the money in his office room whereas in
his evidence before the Court, PW-1 has stated that the appellant
came out of his room in the corridor and at that place PW-1
handed over the tainted money to him. Similarly, PW-2 has
stated that the appellant took them outside the room on a side
which was dark and at that place the appellant accepted the
money. The pertinent question for a conviction under section
7/13 of the Prevention of Corruption Act is the factum of proof of
demand and acceptance of bribe by a public servant. I am in firm
agreement with the learned trial court judge that any minor
deviation with regard to the place of acceptance of bribe cannot
sound a death knell to the case of the prosecution. To say that
the appellant be let off on this sole ground, does not find merit
with me. In the present case, PW-1, the complainant, and PW-2,
shadow witness, have stated in their evidence that the money
was accepted by the appellant outside the room. Learned trial
court judge has further observed that as per the site plan, Ex.PW-
7/A, just outside the room of the appellant there was a corridor
and the money was accepted outside the room. So under these
circumstances, demand and acceptance of the bribe money
stands fully proved. The appellant was caught red handed and
the tainted money was recovered from him.
39. In so far as the question of not arraying Vijay is concerned, I also
find there to be no merit in the contention of the counsel for the
appellant. PW-1 has deposed in his cross-examination that when
ASI Darshan Lal demanded bribe from him at that time no one
else was accompanying him and that though Vijay had
accompanied him to the police station Vinay Nagar, but because
of fear of the police, he did not enter the police station and he
alone met ASI Darshan Lal. PW-1 has further stated that after
ASI Darshan lal demanded an illegal gratification in terms of
Rs.1000/- from him then the appellant directly went to the CBI
office to lodge a complaint against ASI Darshan Lal. Vijay Kumar
had also accompanied him to the CBI office. Vijay Kumar
accompanied him till the entrance door of Shri Datta, S.P., Anti
Corruption. PW-1 stated that while he went inside the room, Vijay
waited outside in the gallery. As per PW-1, after leaving the
police station, they sat in a park on their way to CBI office and
where complaint, Ex.PW-1/A, was written by Vijay Kumar. PW-1
has further deposed in his cross-examination that on 21.9.1995
at the time of the initial demand, appellant had told him that he
would meet him in the police station in the evening after 6.00
p.m. After coming out of the room of ASI Darshan lal, he did not
tell Vijay Kumar anything about the demand made and only told
him at the time when he had asked Vijay Kumar to write a
complaint for him. In view of the above deposition, it can be
safely said that there was no need for the prosecution to array
Vijay Kumar as a witness, as he had merely written the
complaint, Ex.PW-1/A, on behalf of PW-1 who is the complainant
before me.
40. Another contention raised by the learned counsel for the
appellant is that SI Ranbir Singh has not been arrayed as a
prosecution witness though he was present inside the room on
the date of the incident. In my considered opinion there is no
force in the contention of the learned counsel inasmuch as, if SI
Ranbir Singh had not been examined by the prosecution, he
could have been examined by the defence, if according to them
SI Ranbir Singh had anything to corroborate from the side of the
defence.
41. Learned counsel for the appellant has also contended before me
that the prosecution failed to examine Malkhana Mohrar and this
fact goes to the root of the matter. It is settled position of law
that in a trap case, failure to send the solution used for
conducting the phenolphthalein test to the chemical examiner is
only to corroborate the case of the prosecution. There is no legal
requirement which necessitates sending of the chemical solution.
I find merit in the contention of the CBI that non-examination of
Malkhana Moharar cannot be proved fatal to the case of the
prosecution, as putting of phenolphthalein powder on the notes
is not as per any statutory provision but for the satisfaction of
the officials and for this purpose he has placed reliance on
paragraph 13 of State of U.P. Vs. Zakaullah reported at
(1988) 1 SCC 557. The same is reproduced hereunder:
―13. The reasoning of the High Court that reliability
of the trap was impaired as the solution collected in
the phial was not sent to the Chemical Examiner is
too puerile for acceptance. We have not come across
any case where a trap was conducted by the police in
which the phenolphthalein solution was sent to the
Chemical Examiner. We know that the said solution
is always used not because there is any such
direction by the statutory provision, but for the
satisfaction of the officials that the suspected public
servant would have really handled the bribe money.
There is no material discrepancy in the evidence
regarding preparation of recovery memo and the
minor contradiction mentioned by the learned Single
Judge is not worth considering.‖
42. In view of the aforesaid, I am of the considered opinion that a
clear cut case is made out against the appellant of having
demanded the illegal gratification in terms of money (Rs.1,000/-)
and having accepted the same. PW-1, the complainant and PW-2,
the shadow witness, have unerringly deposed against the
appellant, as the person who demanded and accepted the bribe.
PW-7, the recovery witness, has also affirmed the recovery of
tainted money from the possession of the appellant. Both PW-2
and PW-7 are independent witnesses and there is nothing to
suggest that they have been deposing falsely or that their
version is to be dis-believed. PW-5, Additional SHO; and PW-8,
the trap laying officer, have also affirmed that the money that
had been marked to be given to the appellant in case of any
demand made, was indeed recovered from the appellant. I also
find there to be no infirmity in Ex.PW-3/A, the sanction order,
passed by PW-3, who has stated in the sanction order that he
had carefully perused and gone through the material on record
before granting sanction for prosecution of the appellant. PW-3
has also stated on oath that he had taken into account the
evidence of the witnesses, CFSL report, memos brought on
record and other relevant material. PW-3 was also cross-
examined but he was firm in his statement that he had passed
the sanction order after the careful scrutiny of all the relevant
documents. As aforesaid, merely because the sanction order
was reproduced in verbatim by PW-3, there is no necessary
corollary which can be drawn against PW-3 that he did not apply
his mind or that he mechanically passed the sanctioned order.
Thus, I find no infirmity in the judgment dated 30.01.2001,
passed by the learned Special Judge, Tis Hazari in Criminal Case
No.127/99, RC No.83-A/95, convicting the appellant under
section 7 and 13(2) read with Section 13(1)(d) of the Prevention
of Corruption Act, 1988. However, keeping in mind the facts
that the appellant has been through the rigours of trial for more
than fourteen years, he has four daughters to look after, the
order on sentence dated 31.1.2001 is modified to the extent that
the sentence awarded under section 13(1)(d) read with section
13(2) of the Prevention of Corruption Act, 1988 for a period of
three years RI, is reduced to two years RI.
43. The appeal stands dismissed.
G.S.SISTANI
( JUDGE )
July 31, 2009
